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TC Council Packet 09-17-2013 Special Meeting TOWN OF AVON, COLORADO TOWN OF AVON MEETING FOR TUESDAY, SEPTEMBER 17, 2013 SPECIAL TOWN COUNCIL MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET Avon Special Council Meeting Agenda 13 09 17 Page 1 of 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. ______________________________________________________________________________________________________________ 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC) 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 4. PUBLIC COMMENT 5. WORK SESSION ESTIMATED TO BEGIN AT 7 PM 5.1. Village at Avon Update (Eric Heil, Town Attorney) 6. ACTION ITEMS 6.1. First Reading of Ordinance 13–13, Series 2013, an Ordinance Amending the Consolidated and Amended and Restated Annexation and Development Agreement for The Village at Avon (Eric Heil, Town Attorney) 6.2. Approval of Addendum to the Water Tank Agreement (Eric Heil, Town Attorney) 7. ADJOURNMENT 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: Amendments to Village (at Avon) Development Agreement and the Water Tank Agreement DATE: September 13, 2013 SUMMARY: This memorandum provides an overview of amendments to the Village (at Avon) Consolidated, Amended and Restated Annexation and Development Agreement (“Development Agreement”) approved in October of 2012 and amendments to the Water Tank Agreement. AMENDMENTS TO THE DEVELOPMENT AGREEMENT: Since the time of approving the Development Agreement changes in interest rates and other factors have rendered the ability of the Upper Eagle River Water Authority (“Authority”) to finance and construct the Traer Creek water storage tank (“Water Tank”) no longer possible. Also, Traer Creek-RP has proposed a new road alignment which reduces the cut and fill, reduces the amount of surplus soil to be stockpiled or removed, reduces the number of crossings of Traer Creek from 3 to 1, and results in a retaining wall which is less visible. This road design was not in the plans and specifications which were bid by the Authority. Traer Creek-RP LLC (“TC-RP”) has proposed to provide private financing for the construction of the Water Tank. This is a change from the terms of the Settlement Term Sheet under which the Authority was to finance and construct the Water Tank. Attached are amendments to the Development Agreement to implement the terms of financing by TC-RP. The terms of the financing are set forth so as to not result in additional overall costs for the Town of Avon with respect to the Town’s tax credit obligation compared to the terms set forth in the Settlement Term Sheet. The terms are summarized as follows: • TC-RP is responsible for providing sufficient and timely funds for completion of the Water Tank. Completion of the Water Tank is defined in the Tank Agreement as completing construction, dedication to the Authority and acceptance by the Authority after inspection by the Authority. • TC-RP shall be reimbursed for the first $7 million by a pledge of $500k per year for 30 years in the same manner and priority as the pledge to the Authority in the Settlement Term Sheet. This amount equates to an effective interest rate of 5.933%. • TC-RP shall be reimbursed for additional principal amounts for the Water Tank in excess of $7 million by one of two options. Option 1 is to treat the additional financing as an Additional Developer Advance except that the total repayment cost all counts against the Credit PIF Cap (i.e. principal, interest and any other costs associated with repayment). Option 2 is to treat the additional financing as a new category for reimbursement which would be added to the priority waterfall of payments AFTER the payment of Past Developer Advances and the Avon Receivable AND only with payment by non-Credit PIF Revenues. The Town’s tax credit obligation would be fully satisfied at this point, therefore, under Option 2, the additional financing would not be repaid M EMOR ANDUM & PLANNING, LLC Avon Town Council Amendment to Development Agreement and Tank Agreement September 13, 2013 Page 2 of 3 with Town’s tax credit, only with the Village Metro District mill levy, any residual Public Improvement Company fees that remain in place after the Town’s tax credit terminate, and any other fees the Districts in the Village may have in place. Under Option 2, the entire amount of the additional financing would NOT count against the Credit PIF Cap. Revisions to implement these changes include: Section 5.5 to set forth terms of TC-RP’s obligations to provide “Tank Project Financing”. Section 6.2(b)(ii) to state that $7 million for the Tank Project will count against the Credit PIF Cap plus the entire amount of TC-RP Additional Tank Project Financing Reimbursement if Developer elects reimbursement as an Additional Developer Advance. Section 6.2(c)(viii) to state that reimbursement of TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement does NOT count against the Credit PIF Cap. Section 6.9(b)(v)(B)4 to set forth a new category for priority use of District Revenues for TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement that is below the Past Developer Advances and Avon Receivable (i.e. below the last payment obligations requiring the Town’s tax credit obligation to remain in place). Definition of “Tank Project Bonds” is replaced with “Tank Project Financing”. New Definition “TC-RP Additional Tank Project Financing Reimbursement” is added and simply references Section 5.5(b)(iii). New Definition “TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement” is added and references Sections 5.5(b)(iii)(B) and 6.9(b)(v)(B)4. OTHER AMENDMENTS: Other amendments are proposed which are a follow-up to work performed earlier in the summer when the parties considered designating The Village Metropolitan District as a district which could issue bonds and enjoy the tax-exempt status. These revisions were generally acceptable in early summer and would allow flexibility for potential issuance of tax-exempt bonds by The Village Metropolitan District in the future without the need to amend the Development Agreement. Several terms related to bond documents were revised to simply refer to the bond documents because in order to insure consistency with the bond documents and avoid conflicts. The final definitions in Bond Documents will still be reviewed for any potential negative impact to the Town’s interest or intent of the Development Agreement. Finally, revisions to remove reference to BNP as a member of the Board of Directors of Traer Creek Metropolitan District were removed because BNP determined early in 2013 that BNP no longer had an interest in hold a seat on the TCMD Board of Directors. FIRST READING OF ORDINANCE NO. 13-13: Ordinance No. 13-13 approving these amendments to the Development Agreement is presented for first reading. Additional review of the amendments to the Development Agreement will occur through the time Second Reading is presented to Council in order to verify consistency and accuracy of all terms, cross-references and definitions. Only the body of the Development Agreement and Exhibit F Definitions is presented to Council. Exhibits A through E have not Avon Town Council Amendment to Development Agreement and Tank Agreement September 13, 2013 Page 3 of 3 changed. Although I have been in discussion with the attorney for TC-RP, TC-RP has not had the opportunity to review these revisions; therefore, I expect there will be at least some comments and requested additional revisions for first reading and/or second reading. ADDENDUM TO TANK AGREEMENT: Attached is an Addendum to the Tank Agreement as well the Tank Agreement as previously approved by the Town Council in December of 2012. The Addendum changes the responsible party for constructing the Water Tank, addresses required escrow amounts, and states the conditions for which the Authority would rescind the moratorium on water service. Council may approve the Addendum to the Tank Agreement by motion. PROPOSED MOTION: “I move to approve Ordinance No. 13-13 AN ORDINANCE APPROVING AMENDMENTS TO THE CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON).” Thank you, Eric Page 1 of 3 Ord No. 13-13 Amendments to Development Agreement Sept. 13, 2013 – First Reading TOWN OF AVON, COLORADO ORDINANCE 13-13 SERIES of 2013 AN ORDINANCE APPROVING AMENDMENTS TO THE CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON). WHEREAS, the Town of Avon (“Town”), Traer Creek Metropolitan District (“TCMD”), Traer Creek LLC, Traer Creek-RP LLC, Traer Creek Plaza LLC, EMD Limited Liability Company, Traer Creek-HD LLC, Traer Creek-WMT LLC, (collectively the “Traer Creek Parties”), BNP Paribas (“BNP”) and Eagle County are parties to the consolidated litigation Civil Action No: 2008 CV 385 and Civil Action No: 2010 CV 316, Eagle County District Court (“Litigation”); WHEREAS, on October 7, 2011 Town, TCMD, the Traer Creek Parties, and BNP entered into the Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve the Litigation; WHEREAS, the Town of Avon approved an Annexation and Development Agreement for the Village (at Avon) by Ordinance No. 98-17; WHEREAS, the Town of Avon approved the First Amendment to the Annexation and Development Agreement by Ordinance No. 01-16, the Second Amendment to the Annexation and Development Agreement by Ordinance No. 03-08, and the Third Amendment to the Annexation and Development Agreement by Ordinance No. 04-17; WHEREAS, the Town approved the Consolidated, Amended, and Restated Annexation and Development Agreement (“Development Agreement”) by Ordinance 12-10; WHEREAS, the Upper Eagle River Water Authority is not able finance and construct the Traer Creek Water Storage Tank in accordance with the terms of the Water Tank Agreement due to changes in circumstances, including but not limited to increases in interest rates and changes to the design of the Water Tank Project; WHEREAS, TC-RP has offered to provide private financing and to construct the Water Tank pursuant to the terms of an amended Water Tank Agreement and subject to reimbursement by Traer Creek Metropolitan District; WHEREAS, the Town Council previously approved the Receipt and Escrow Agreement Pertaining to the Village (at Avon) Settlement Implementation (“Closing Escrow Agreement”), which set forth terms for the execution, deposit, recording, effectiveness and potential voiding of documents, including the Development Agreement; WHEREAS, the Town of Avon may generally act by ordinance to approve agreements and acceptance of property conveyed to the Town pursuant to Avon Town Charter Section 6.1; Page 2 of 3 Ord No. 13-13 Amendments to Development Agreement Sept. 13, 2013 – First Reading WHEREAS, the Town Council conducted a public hearing on September 24, 2013 at the Avon Town Hall in accordance with Sections 6.5(d) and (e) of the Avon Home Rule Charter; and WHEREAS, the Town Council finds that approval of this Ordinance will approve the terms of private financing by TC-RP for the Traer Creek Water Storage Tank and will enable settlement to be finalized and will thereby promote the preservation of the public health and safety of the people of the Town of Avon. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Approval of Development Agreement. The Development Agreement Version [HEIL - Sept 12, 2013] is hereby approved and shall replace and supersede the version Development Agreement approved by Ordinance No. 12-10. The Mayor and the Town Clerk and their respective designees are authorized to execute the Development Agreement, attached hereto as Exhibit A, and are authorized to take such as action as necessary to cause the Development Agreement to be deposited with the Escrow Agent in accordance with the terms of the Closing Escrow Agreement. Section 3. 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. No provision of this Ordinance shall be severable. If any provision of this Ordinance is for any reason held to be invalid, such invalidity shall affect the entirety of this Ordinance, and all documents and exhibits to documents approved by this Ordinance, and shall render the entire Ordinance invalid, without and void ab initio. Section 5. Effective Date. This Ordinance shall take effect on the day after the last day that a petition for referendum can be submitted to the Town as set forth in Section 8 below, in accordance with Section 6.4 of the Avon Home Rule Charter. Notwithstanding the foregoing, the effectiveness of this Ordinance, or any of the instruments approved hereby, shall not be recorded against, be binding upon, benefit or burden the property known as The Village (at Avon) or be binding upon any party until the occurrence, if any, of the Implementation Date in accordance with the terms of the Closing Escrow Agreement. Section 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 Page 3 of 3 Ord No. 13-13 Amendments to Development Agreement Sept. 13, 2013 – First Reading 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 in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section. 7.16.140(d)(2) of the Avon Municipal Code. Section 8. Right of Referendum. The right of referendum shall run thirty (30) days from the date of publication of the notice that a vested property right has been granted in accordance with Section 7.16.140(d)(2)(iii) of the Avon Municipal Code. INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on September 17, 2013 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on September 24, 2013, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. ____________________________ 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 September 24, 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 E-1 1001679.22 FINAL CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to time, this “Development Agreement”) is made and entered into as of __________________,June 7, 2013 (“Execution Date”) by and among the Parties and the Limited Parties, and with the consent of the Developer Affiliates, BNP and Lenders. RECITALS This Development Agreement is made with reference to the following facts: A. Initially capitalized words and phrases used in this Development Agreement have the meanings set forth in Exhibit F, which definitions are incorporated herein. B. Pursuant to the Original Agreement, the Town and the Original Owners set forth the terms and conditions upon which the land legally described in Exhibit A of the Original Agreement would be annexed into and developed under the jurisdiction of the Town, such legal description having been updated to reflect the Recording of various subdivision plats subsequent to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the “Property”). C. Town Council approved the Service Plans on August 25, 1998, and on February 3, 1999, TCMD and VMD were legally formed for the general purposes contemplated by the Original Agreement and more specifically described in the Service Plans. D. Subsequent to the Original Effective Date: (i) the other entities comprising the Original Owner were merged into EMD, which became the sole Original Owner; and (ii) pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in writing, the right to amend the Original Agreement as to all of the Property except Planning Area M as designated in the Original PUD Guide and the Original Agreement (now re-designated Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the right to amend the Original Agreement. E. As of the Execution Date, the current fee owners of the real property comprising the Property are, as their respective interests appear of Record: TC-RP; EMD; TC Plaza; TC-WMT; TC-HD; Alkali Company, a Colorado limited partnership; TCMD; the District Directors; the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation; Buffalo Ridge II LLLP, a Colorado limited liability limited partnership; Eagle River Fire Protection District, a quasi-municipal corporation; Eagle County Health Service District, a quasi-municipal corporation; and Department of Transportation, State of Colorado. F. Other than EMD, each of the Developer Affiliates and other Landowners referred to in Recital E acquired title to the portion of the Property it owns subject to the terms and conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original Agreement. None of the conveyances referred to in Recital E were accompanied by a specific written grant of the power to amend the Original Agreement as provided in Section 1.4 of the Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment described in Recital D), no Landowner or other person or entity has been granted any power to consent or object to any amendment of the Original Agreement (except for the rights of BNP, derived in its capacity as the issuer of an irrevocable direct pay letter of credit securing the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002 and the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2004, to consent to TCMD’s execution of any such amendment). As provided in Section E-2 1001679.22 FINAL 1.4 of the Original Agreement, no person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to execute or acknowledge this Development Agreement as a condition of this Development Agreement being legally effective and binding on all parties to the Original Agreement and all Landowners. G. For ease of administration and in recognition of the fact the ownership of the Property has and will continue to become diverse as the Project develops, the Developer Affiliates have designated Master Developer to act on their behalf for all purposes in connection with this Development Agreement, including but not limited to negotiation and execution of this Development Agreement and any future amendments hereto. H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV 316 (collectively, consolidated as Case No. 2008 CV 385, the “Litigation”) and the parties to the Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered into that certain Settlement Term Sheet made and entered into the 7th day of October, 2011, by and between the Town, BNP, TCMD, TCLLC, TC-RP, TC Plaza, EMD, TC-HD LLC and TC-WMT (the “Settlement Term Sheet”). I. In accordance with the terms and conditions of the Settlement Term Sheet, the Parties have entered into this Development Agreement to implement pertinent terms of the Settlement Term Sheet, to effect a full and final settlement of all disputes pertaining to the Original Agreement which were the subject of the Litigation, and to resolve other potential disputes related to development entitlements, interpretation of Original Agreement, equitable allocation of responsibilities and rights, and other matters which are addressed in this Development Agreement and related documents. The Town’s final non-appealable approval of this Development Agreement establishes and implements specific terms and conditions of the Settlement Term Sheet and shall be binding on the Parties hereto and also shall be binding on all parties to the Settlement Term Sheet. J. Various circumstances and changed conditions require mutual execution and approval of this Development Agreement in order to: (i) clarify and implement the intent of the parties to the Original Agreement to promote development of the Property; (ii) amend and restate the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate dismissal of the Litigation with prejudice and minimize the potential for future legal disputes. K. During the period between the Original Effective Date and the Execution Date and in reliance on the revenue sharing and infrastructure financing arrangements established by the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer Affiliates have made large investments in Public Improvements located both within the Property and outside of the Property. The foregoing has resulted in: (1) Full satisfaction of the following obligations of TCMD under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) Construction of the Interstate 70 Interchange and the Highway 6 Connector Road as defined in § 4.2 of the Original Agreement; (b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of the Original Agreement, in the amount of $100,000; (c) Construction of the Phase 1 Improvements and the Phase 2 Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement; E-3 1001679.22 FINAL (d) Construction of the Swift Gulch Road Improvements as defined in § 4.3(c) of the Original Agreement; (e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of the Original Agreement; and (f) Those obligations set forth in § 4.3(j) of the Original Agreement. (2) Partial satisfaction of the following obligation of TCMD under the terms and conditions of the Original Agreement, with performance of the remaining obligations waived pursuant to the Settlement Term Sheet and the provisions establishing such obligation accordingly deleted from this Development Agreement: (a) Payment of nine (9) installments, in the amount of $200,000 each, of the ten (10) such installments comprising the East Avon Exaction as defined in § 4.3(a)(i) of the Original Agreement, the obligation to make the final installment being extinguished by this Development Agreement as contemplated in the Settlement Term Sheet. (3) Full satisfaction of the following obligations of Original Owners under the terms and conditions of the Original Agreement, with the provisions establishing such obligations accordingly deleted from this Development Agreement: (a) The two property conveyances comprising the Public Works Dedication as defined in § 4.3(d) of the Original Agreement; (b) Reimbursement to the Town of those costs required to be reimbursed pursuant to § 4.3(e) of the Original Agreement. L. The Town has adopted Ordinance No. 12-10, which approved this Development Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term Sheet. M. Continued development of the Project will require substantial additional investments in Public Improvements, and completion of these additional Public Improvements will require substantial additional investments by the Districts, the PICs, Master Developer, the Developer Affiliates and/or other Landowners. All such completed and to be constructed Public Improvements will serve the needs of the Project and the Town. Such prior and future investments can be supported only if there are assurances that development of the Project will be permitted to proceed to ultimate completion as contemplated in this Development Agreement and the PUD Guide. N. The Vested Property Rights Statute and the Municipal Code (as in effect on the Execution Date) authorize the Town to enter into development agreements which provide for the vesting of property development rights with a term of greater than three (3) years. O. Town Council has determined that granting Vested Property Rights for the duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land use planning process, stimulate economic growth, secure the reasonable investment-backed expectations of Landowners and foster cooperation between the public and private sectors in the area of land use planning and development. P. Town Council specifically finds that this Development Agreement provides public benefits including but not limited to the following specific public benefits: (i) development of the Property in accordance with the applicable development standards in the Development Plan and, to the extent not controlled by the Development Plan, the Municipal Code (as amended from time to time); (ii) economic development through construction anticipated to occur in connection with development of the Project; (iii) economic development through the development of various E-4 1001679.22 FINAL commercial and residential uses that enhance, complement and reinforce the Town’s existing economy, commercial base and ad valorem property tax base; (iv) development of housing to meet the needs of the Avon community; (v) development of significant property within the Town’s municipal boundaries which promotes economies of scale in the provision of public services; and (vi) establishment of a public-private cooperative arrangement that promotes the availability of capital for Public Improvements and promotes the competitiveness and viability of private development within the Town and the Project. Q. In exchange for these benefits and the other benefits to the Town contemplated by this Development Agreement, together with the public benefits served by the orderly development of the Property, this Development Agreement and the Vested Property Rights established herein are intended to provide assurance to Master Developer, EMD, the Developer Affiliates, other Landowners, the Districts, lenders providing financing for development of the Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued or to be issued by the Districts that development of the Property pursuant to the terms and conditions of the Development Plan and the Approved SSDPs can occur without impediment or impairment of the Vested Property Rights. R. The Limited Parties have executed this Development Agreement only for the limited purposes expressly set forth herein and with the express understanding that the Limited Parties shall not be construed to have any rights, duties, obligations or remedies arising under this Development Agreement except to the extent expressly set forth herein with respect to each Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited Party shall be strictly limited to those expressly set forth in this Development Agreement as a right, duty, obligation or remedy of such Limited Party. S. Lenders have executed this Development Agreement for the sole purpose of evidencing their respective consent and subordination to the Recording of this Development Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any obligation or acquiring any enforcement right or remedy arising under this Development Agreement. T. BNP, while not a Party, has executed a written consent to this Development Agreement in order to affirm BNP’s consent to approval of the Financing Plan and related matters addressed in this Development Agreement. Additionally, BNP is an Intended Beneficiary with respect to BNP’s right to enforce certain provisions of this Development Agreement, including but not limited to BNP’s right to have a lawfully eligible candidate designated at the option of BNP to hold the office of director of TCMD, BNP’s right to be conveyed and to hold a property interest sufficient to qualify its designee for holding the position of director until such time as there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, and BNP’s right to participate on the AURA board of directors with respect to any urban renewal plans for any portion of the Property. U. As between the Town, AURA, TCMD and VMD, this Development Agreement constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-203 and 29-20-105, and such Parties intend their respective obligations hereunder to be enforceable by specific performance and/or other equitable remedies in addition to any remedies otherwise available at law. V. As between the Town, Master Developer, EMD, Developer Affiliates and other current or future Landowners, this Development Agreement constitutes a development agreement granting Vested Property Rights for a period in excess of three (3) years in accordance with Section 24-68-104(2) of the Vested Property Rights Statute. W. The Parties intend this Development Agreement to amend and restate in its entirety the Original Agreement by consolidating the original document and subsequent amendments thereto into a single document for ease of reference, and additionally by incorporating the amendments necessary and desirable to implement applicable terms and conditions of the Settlement Term Sheet. E-5 1001679.22 FINAL AGREEMENT NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth in this Development Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1 GENERAL PROVISIONS 1.1 Incorporation of Recitals. The Recitals are incorporated into and made substantive provisions of this Development Agreement. 1.2 Effectiveness and Recording of Development Agreement. This Development Agreement shall be effective as of the Effective Date. Any delay or failure to Record this Development Agreement shall not negate or impair the effectiveness of this Development Agreement as between the Parties and any other parties having notice of this Development Agreement. The effectiveness and/or Recording of this Development Agreement shall not be construed to negate the effectiveness of any approvals granted by Town Council prior to the Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other Landowner taken in connection with development of the Project prior to the Effective Date. All such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the Settlement Term Sheet shall be construed to be of no further force or effect, its terms and conditions having been incorporated into and implemented by this Development Agreement, the PUD Guide, the Tank Agreement, the TCMD2013 Reissue Documents and/or otherwise performed in full. As of the Effective Date, the obligations of each party to the Original Agreement to any other party to the Original Agreement are expressly discharged, terminated and of no further force or effect except to the extent such obligations are expressly incorporated and set forth in this Development Agreement. 1.3 Covenants. Upon Recording, the provisions of this Development Agreement shall constitute covenants and servitudes that touch, attach to and run with the land comprising the Property and, except as otherwise provided in Section 1.5 with respect to amendments to this Development Agreement, the burdens and benefits of this Development Agreement shall bind and inure to the benefit of all estates and interests in the Property and all successors in interest to the Parties, the Developer Affiliates and any other Landowners as of the Effective Date. 1.4 Vesting Term; Term of Development Agreement. Phased development of the Project as contemplated under this Development Agreement and the Development Plan involves significant acreage and density which will require substantial investment and time to complete. (a) Vesting Term. Due to the size and phasing of the Project, the potential for development of the Project to be affected by economic and financial cycles, the effect of national and statewide markets with regard to retailers, accommodations industry and builders, and the limitation of absorption rates by the local market conditions, the term of the Vested Property Rights established pursuant to Section 2.4 shall continue through and including October 20, 2039 (“Vesting Term”). If the Term expires prior to expiration of the Vesting Term, the Vesting Term shall continue in full force and effect and shall survive expiration of the Term in accordance with and subject to the terms, conditions and limitations set forth in this Agreement. On October 21, 2039, the Vested Property Rights shall be deemed terminated and of no further force or effect; provided, however, that such termination shall not affect: (i) annexation of the Property to the Town; (ii) any common-law vested rights obtained prior to such termination; (iii) any right arising from Town building permits, development approvals or other zoning entitlements for the Property or the Project which were granted or approved prior to expiration of the Vesting Term; or, E-6 1001679.22 FINAL (iv) any obligation of a Party under this Development Agreement that has not been fully performed as of the date on which the Vesting Term expires. (b) Term of Development Agreement. Notwithstanding any prior expiration of the Vesting Term (or survival of the Vesting Term after expiration of the Term), the term of this Development Agreement and the Parties’ obligations hereunder shall commence upon the Effective Date and shall terminate upon expiration of the Term. Upon expiration of the Term, the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit. Notwithstanding the foregoing, the Town may elect to extend the Term in accordance with Section 6.1(d). In no event shall the Term expire before the Town’s obligation to maintain the Tax Credit in effect has terminated as provided in Section 6.1(b). (c) Obligation to Maintain Tax Credit. Without limitation of the foregoing, the Town’s obligation to maintain the Tax Credit in effect pursuant to Sections 4.2(a) and 6.1(b) shall survive expiration of the Vesting Term and shall continue in full force and effect until the conditions set forth in Section 6.1(b) have been fully satisfied. 1.5 Amendment of Development Agreement. This Development Agreement may be amended or terminated only by mutual written consent of the Town, TCMD and Master Developer (but not by their respective successors or assigns or by any non-Party Landowner) following the public notice and public hearing procedures required for approval of this Development Agreement; provided, however: (a) Specific Grant of Amendment Rights. For purposes of this Section 1.5 only, the term “Master Developer” means TCLLC, EMD and those additional parties, if any, to whom TCLLC or EMD has specifically granted, in writing, the power to enter into such amendments. No entity to whom TCLLC or EMD has granted the power to enter into such amendments may further assign or grant such power to another entity except to the extent expressly stated in the grantee’s original grant from TCLLC or EMD. (b) Limited Parties. The written consent of a Limited Party (other than EMD in its capacity as Master Developer, as otherwise set forth in this Section 1.5) shall not be required except to the extent the proposed amendment directly and expressly modifies a provision of this Development Agreement that establishes a right, obligation or remedy of such Limited Party. (c) VMD. During any portion of the Term in which VMD has outstanding District Debts that VMD issued or incurred as part of or with respect to the Financing Plan, VMD’s written consent (not to be unreasonably withheld, conditioned or delayed) shall be required for amendments to the Financing Plan and/or to Section 5.1 to the extent such amendments expressly create additional obligations of VMD and/or expressly modify any rights of VMD that are established in such provisions. VMD’s written consent shall not be required with respect to amendments to this Development Agreement that are not expressly within the scope of the preceding sentence. (d) (c) BNP. The Parties acknowledge that until such time as there are no outstanding obligations to BNP under the TCMD2013 Reissue Documents or any subsequent reissue or refunding of such bonds, TCMD and/or VMD’s agreement to any future amendment to the provisions of this Development Agreement that run in favor of BNP, including without limitation, this Section 1.5(cd), Section 1.6, Article 4, Section 5.1(e), Section 5.3(e), Article 6 and Article 7 is subject to BNP Paribas’ (or any successor or assignee of BNP Paribas pursuant to Section 8.11) prior written consent. The Parties further acknowledge that until such time as there are no outstanding obligations to BNP under the TCMD2013 Reissue Documents or any subsequent reissue or refunding of such bonds, TCMD is, TCMD and VMD are (or are anticipated to be) required by the provisions of the TCMD2013 Reissue Documents to obtain the consent of BNP (or a written acknowledgement that such consent is not required) to any future amendment to the provisions of this Development Agreement, and failure on the part of TCMD and VMD to obtain such consent prior to entering into any such amendment will be a default under the TCMD2013 Reissue Documents, as to which BNP will have the right to exercise its remedies. E-7 1001679.22 FINAL 1.6 Cooperation in Defending Legal Challenges. If, after the Execution Date, any legal or equitable action or other proceeding is commenced by a third party challenging the effectiveness of Ordinance No. 12-10, the effectiveness of this Development Agreement and/or the Development Plan, or the validity of any provision of this Development Agreement and/or the Development Plan, the Parties shall in good faith cooperate in defending such action or proceeding and shall each bear their own expenses in connection therewith. Unless the Parties otherwise agree, each Party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. The Parties acknowledge that the obligations of the Town, VMD and TCMD pursuant to this Section 1.6 are subject to compliance with the requirements of Section 20 of Article X of the Colorado Constitution. Accordingly, the Town, VMD and TCMD shall in good faith take such steps as may be available to them in response to the filing of any action or proceeding addressed above to set aside, hold and irrevocably pledge adequate present cash reserves to fund the reasonably anticipated costs of defending such action or proceeding; provided, however, if either the Town, VMD or TCMD is not in a position to fund from present cash reserves all or any portion of the reasonably anticipated costs of defending such action or proceeding, such Party’s obligation pursuant to this Section 1.6 shall be subject to annual appropriation. 1.7 Role of Master Developer. For the reasons described in Recital G, the Developer Affiliates have designated Master Developer to act on behalf of themselves and their respective successors in interest with respect to and for all purposes of this Development Agreement. The Developer Affiliates may designate a replacement Master Developer from time to time, or may terminate the role of the Master Developer, by delivery of written notice thereof to the Town, VMD and to TCMD which is signed by a majority of the Developer Affiliates owning any part of the Property as of the date of such notice. Any replacement Master Developer must be an entity that is a Developer Affiliate. The designation of a replacement Master Developer or termination of the role of Master Developer by the Developer Affiliates shall not require an amendment to this Development Agreement and shall not require the consent of the Town, VMD, TCMD or BNP. 1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries. (a) Limited Parties. As more particularly described in Recital R, each Limited Party is executing this Development Agreement solely with respect to a limited obligation of such Limited Party. With respect to each Limited Party, such obligations, rights and remedies are expressly limited as follows: (i) AURA. AURA’s obligations arising under this Development Agreement are limited to those set forth in Section 4.3. AURA’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(i). (ii) EMD. EMD’s obligations arising under this Development Agreement are limited to those set forth in Section 5.4. EMD’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(ii). (iii) The Commercial PIC. The Commercial PIC’s obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Commercial PIC’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iii). (iv) The Mixed Use PIC. The Mixed-Use PIC’s obligations arising under this Development Agreement are limited to those set forth in Section 5.2. The Mixed-Use PIC’s rights and remedies arising under this Development Agreement are as set forth in Section 7.7(c)(iv). (b) Intended Beneficiaries. Except to the extent an Intended Beneficiary undertakes obligations as an Applicant in connection with the development of a Site and/or execution of a Public Improvement Agreement as provided in this Development Agreement, no Intended Beneficiary is subject to any obligation arising solely under this Development Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set forth in E-8 1001679.22 FINAL Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy arising solely under this Development Agreement. Notwithstanding the foregoing, TC-RP shall have the obligation set forth in Section 5.5. ARTICLE 2 ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS 2.1 Annexation. Annexation of the Property was accomplished in accordance with the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended (C.R.S. §§ 31-12-101, et seq.) as in effect in 1998. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies annexation of the Property. 2.2 PUD Zoning. Planned unit development (PUD) zoning of the Property was accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the PUD zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each formal amendment to the PUD Guide and/or PUD Master Plan accomplished prior to the Effective Date, and ratifies all development that has occurred within the Property pursuant to the Original PUD Guide. Concurrently with Recording of this Development Agreement, the Parties caused Recording of the PUD Guide. Accordingly, the Property is zoned PUD pursuant to and as set forth in the PUD Guide. 2.3 Permitted Uses/Design Standards. The permitted uses of the Property, the density and intensity of use, the maximum height, bulk and size of proposed buildings, design standards, road profiles and sections, provisions for reservation or dedication of land for public purposes, the general location of roads and trails, the ability of an Applicant to relocate roads, trails and improvements, and other terms and conditions of development applicable to the Property and the Project shall be those set forth in the PUD Guide and in this Development Agreement. 2.4 Vesting of Property Rights. The Original Agreement and the Original PUD Guide were Site Specific Development Plans with respect to which the Town granted Vested Property Rights for a term of thirty-five (35) years from the Original Effective Date. Consistent with the foregoing and in implementation of the Settlement Term Sheet, this Development Agreement ratifies the Vested Property Rights established by the Original Agreement and the Original PUD Guide and, as described in Section 1.4(a), extends the term of such Vested Property Rights (including with respect to future amendments to any such Approved SSDP) through and including October 20, 2039. Approval of the Development Plan constitutes a vested property right pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7, Chapter 16, of the Avon Municipal Code as amended. Accordingly, the rights identified below (collectively, the “Vested Property Rights”) are expressly ratified, granted and approved by Town Council: (a) The right to develop, plan and engage in land uses within the Property and the Project in the manner and to the extent set forth in and pursuant to the Development Plan and other Approved SSDPs (if any). (b) The right to develop, plan and engage in land uses within the Property and the Project in accordance with the densities, physical development standards and other physical parameters set forth in the PUD Guide and other Approved SSDPs (if any). (c) The right to develop the Project in the order, at the rate and at the time as the applicable Developer determines appropriate given market conditions and other factors, subject to the terms and conditions of the Development Plan and other Approved SSDPs (if any). (d) The right to develop and complete the development of the Project including, without limitation, the right to receive all Town approvals necessary for the development of the Project with conditions, standards and E-9 1001679.22 FINAL dedications which are no more onerous than those imposed by the Town upon other developers in the Town on a uniform, non-discriminatory and consistent basis, and subject only to the exactions and requirements set forth in the Development Plan and other Approved SSDPs (if any); provided that such conditions, standards and dedications shall not directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer’s, EMD’s, Developer Affiliates’ or any other Landowner’s rights set forth in the Development Plan or other approved SSDPs (if any). (e) The right to prevent (by mandamus, mandatory or prohibitory injunction or other form of legal or equitable remedy) the application to the Property or the Project of any Town or citizen initiated zoning, land use or other legal or administrative action that would directly or indirectly have the effect of materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any of Master Developer’s, EMD’s, Developer Affiliates’ or any other Landowner’s rights set forth in the Development Plan and/or other Approved SSDPs (if any). Section 7.1 of the Town’s Charter precludes citizen-initiated measures regarding certain matters, including the zoning or rezoning of property. In accordance with Section 7.1 of the Town’s Charter, no initiated measure shall be permitted that would have the effect of modifying or negating the Town ordinance by which Town Council approved implementation of the Settlement Term Sheet, Ordinance No. 12-10, or any instrument implementing the Settlement Term Sheet as approved in Ordinance No. 12-10, including but not limited to the Development Plan. (f) Notwithstanding any additional or contrary provision of the Municipal Code (as in effect from time to time), and notwithstanding any prior expiration of the Term, the Vesting Term with respect to the Development Plan and other Approved SSDPs (if any) shall not expire, be deemed forfeited, or otherwise limited or impaired prior to October 21, 2039. For the avoidance of doubt and notwithstanding any contrary provision of the Municipal Code (as in effect time to time), the scope of Vested Property Rights established by the Development Plan specifically includes the right that all amendments to the Development Plan or other Approved SSDPs (if any) approved by the Town shall be and remain vested through and including October 20, 2039, and includes the right to retain and enjoy the remaining period of the Vesting Term for any amendment to the Development Plan or other Approved SSDPs (if any). Accordingly, during the Vesting Term (and notwithstanding any prior expiration of the Term) Town Council (or other final decision-maker of the Town) shall not condition approval of any future amendment to the Development Plan or other Approved SSDPs (if any) on, nor shall Town Council (or other final decision-maker of the Town) make any such approval subject to the Applicant’s, Landowner’s or Master Developer’s consent to, a reduction of the then-remaining Vesting Term. 2.5 No Obligation to Develop. (a) Master Developer; Other Landowners. Neither Master Developer nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of the Project, nor shall Master Developer or any Landowner have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Project. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. Neither Master Developer nor any Landowner shall have any obligation arising under this Development Agreement to develop all or any portion of any such phase, notwithstanding the development or non-development of any other phase, and neither Master Developer nor any Landowner shall have any liability to the Town or any other party arising under this Development Agreement for not developing all or any portion of any such phase of the Project. (b) Districts. The Districts’ Service Plans establish the scope of the Districts’ authorized activities and shall not be construed to constitute an obligation of the Districts to cause the development of any particular Public Improvements, or to provide any particular services or to perform any other function for which the Districts have authorization, nor shall such Service Plans be construed to create any obligation of Master Developer or any Landowner to provide any Public Improvements, any services or to otherwise pay any monies or perform any actions on behalf of or E-10 1001679.22 FINAL for the benefit of the Districts. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements, nor shall any District have any liability to the Town or any other party arising under this Development Agreement for not developing all or any part of the Public Improvements. The Parties contemplate that the Project will be developed in phases as generally driven by market conditions as they exist from time to time. No District shall have any obligation arising under this Development Agreement to develop all or any portion of the Public Improvements pertinent to any such phase, notwithstanding the development or non-development of any Public Improvements for any other phase, and no District shall have any liability to the Town or any other party arising under this Development Agreement for not developing all or any portion of the Public Improvements pertinent to any such phase of the Project. The foregoing shall not be construed to relieve any District of any obligation established pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a District as contemplated in Section 3.2(a). (c) Construction and Interpretation. For purposes of this Section 2.5 references to Master Developer, Landowners and the Districts shall be construed to include their respective employees, agents, members, officers, directors, shareholders, consultants, advisors, successors, assigns and similar individuals or entities. 2.6 Compliance with General Regulations. Except as otherwise provided in the Development Plan, the establishment of Vested Property Rights under this Development Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town ordinances and regulations of general applicability (including, but not limited to, building, fire, plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Original Effective Date or as amended from time to time), and other Town rules and regulations) or the application of state or federal regulations, as all of such regulations existed on the Original Effective Date or may be enacted or amended after the Effective Date; provided, however, that Town ordinances and regulations newly enacted or amended after the Original Effective Date shall not directly or indirectly have the effect of adversely altering, impairing, preventing, diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting any Landowner’s Vested Property Rights. No Landowner shall be deemed to have waived its right to oppose the enactment or amendment of any such ordinances and regulations. ARTICLE 3 PUBLIC IMPROVEMENTS; DEVELOPMENT STANDARDS; EXACTIONS 3.1 Design Review. As contemplated by the Original Agreement and as more particularly described in the PUD Guide, the Design Review Board has been established (and, as required by the Original Agreement, includes a member designated by the Town’s Planning and Zoning Commission), the Design Covenant has been Recorded and the Design Review Guidelines have been promulgated. During the Term, the Design Review Board shall continue to consist of not more than five (5) members, one (1) of whom shall be a member of the Town’s Planning and Zoning Commission designated by the Town from time to time and the remainder of whom shall be appointed as provided in the governing documents of the Design Review Board. The Design Covenant shall govern matters related to use and development of all or any part of the Property. Where any conflict between the Design Review Covenant and the Development Plan may occur, the most restrictive provision shall govern. The Design Review Board shall refer to the Town’s Planning and Zoning Commission, for comment only and not for approval or disapproval: (A) all development proposals submitted to the Design Review Board for portions of the Property located south of Interstate 70; (B) all portions of the Property located north of Interstate 70 other than Planning Areas K and RMF-1 (with respect to which the Design Review Board shall have no obligation to refer to the Town’s Planning and Zoning Commission); and (C) all proposed amendments to the Design Covenant. At Master Developer’s option, separate design review board(s) may be established with respect to Planning Areas RMF-1 and K. Such separate design review board(s), if any, created for Planning Areas RMF-1 and K shall not be required to include any Town official as a member. 3.2 Allocation of Public Improvement Obligations. Except as otherwise expressly set forth in this Development Agreement, the timing of the design, construction and financing of the Public Improvements, as well as the designation of the specific entity responsible for such design, construction and financing, will be addressed in the E-11 1001679.22 FINAL applicable Public Improvement Agreement(s) as development of the Project takes place in conjunction with the processing of the applicable Development Application (which may or may not be a subdivision application). The Public Improvement obligations described in this Development Agreement are intended to be allocated among, as applicable, the Districts, Master Developer, a Developer and/or an Applicant based on the relationship between the particular Public Improvement(s), the Site owned by the particular Developer and/or Applicant, and the nature of the development occurring on the Site. This Development Agreement does not specifically allocate such Public Improvement obligations, it being the Parties’ intent that the allocation will be set forth in a Public Improvement Agreement executed in connection with the processing and approval of the applicable Development Application. Public Improvements for which a District does not undertake to finance the design, construction, maintenance and operation shall be undertaken by the applicable Developer and/or Applicant. All such Public Improvements, whether undertaken by a District or undertaken by a Developer and/or Applicant, shall be undertaken and provided in accordance with the terms and conditions of the applicable Public Improvement Agreement executed in connection with approval of the pertinent Development Application. (a) Role of Districts. Subject to the availability of funds therefor, District board of directors authorization, the terms and conditions of this Development Agreement, the Districts’ respective Service Plans and state law, and in consideration of the Town’s performance of its obligations under this Development Agreement (specifically including but not limited to the Financing Plan), the Districts may from time to time (without obligation to do so arising under this Development Agreement) undertake to finance the design, construction, maintenance and operation, as applicable, of the Public Improvements as and when reasonably needed to support development of the Project. References to Master Developer, EMD, Developer Affiliates, Developers, Landowners or Applicants in the context of the Public Improvement obligations addressed in this Development Agreement will be construed to mean and include by reference the applicable Districts to the extent particular Districts have undertaken such obligations pursuant to the terms of a Public Improvement Agreement as contemplated in this Development Agreement. This Development Agreement will not be construed as creating an implied obligation for the Districts to finance or construct any particular Public Improvements prior to such District’s execution of a Public Improvement Agreement pursuant to which the applicable District undertakes specific obligations regarding specific Public Improvements. Any obligation undertaken by a District pursuant to this Section 3.2 shall not be construed to constitute a multiple fiscal year obligation of such District, but shall be subject to annual budget and appropriation unless otherwise agreed to in writing by such District. (b) Assurance of Completion. The Applicant for any Development Application submitted after the Effective Date will provide an improvement guarantee assuring completion of the Public Improvements as required by the Municipal Code as then in effect (to the extent not inconsistent with an express provision of this Development Agreement or the PUD Guide), and as more particularly described in the applicable Public Improvement Agreement to be executed in connection with future Development Application approvals. 3.3 Public Roads and Access. (a) General. Access, ingress and egress to, from and within the Project shall be provided as generally described in the Development Plan. As generally described in Recital K, prior to the Execution Date TCMD has fully performed all road construction obligations specifically required pursuant to the Original Agreement. The PUD Master Plan graphically depicts the alignments of existing permanent roads, the alignments of existing temporary roads, and potential conceptual alignments of some future roads. Subject to the availability of District Revenues not pledged or otherwise encumbered by the obligations of the Districts as set forth herein or under any debt instruments contemplated herein, one or more of the Districts may (as contemplated by and subject to the conditions described in Section 3.2(a)) undertake to finance and/or construct the public roads within the Project. All public roads, whether constructed by or on behalf of a District or a Developer, shall be constructed in accordance with the standards set forth in the PUD Guide and shall be Dedicated to and Accepted by the Town in accordance with Section 3.3(b). Nothing set forth in the preceding sentence shall prohibit or limit a Landowner’s right to construct and maintain private roads, or to construct and Dedicate public roads to the Town or to a District (subject to the availability of sufficient District Revenues to maintain such public roads). E-12 1001679.22 FINAL (b) Dedication; Acceptance and Maintenance of Public Roads and Rights-of-Way. Subject to the specific terms and conditions set forth in Article 4 and Article 6: (i) Existing Public Roads. Contemporaneously with the Effective Date, TCMD conveyed to the Town all of TCMD’s right, title and interest in and to the existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder Avenue), together with the road improvements, streetscape improvements, landscape improvements and drainage improvements located within such rights-of-way. The Town granted Final Acceptance of all such roadways and related improvements for maintenance without reservation or condition, whether related to warranty periods or otherwise, and released all warranty collateral related thereto. (ii) Main Street. As of the Execution Date, the temporary alignment and road surface of East Beaver Creek Boulevard within Lot 1 (redesignatedre-designated in the PUD Guide as Main Street) is located within the easement established by the Easements with Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8, 2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as each pertinent phase of the final alignment thereof is completed as more specifically set forth in the PUD Guide. Dedication of each phase of the permanent alignment of Main Street shall be accomplished pursuant to clause (iii) below. During the period prior to Dedication of each phase of the permanent alignment of Main Street, the Town is and shall remain responsible for snow removal, road maintenance, streetscape maintenance and landscape maintenance within the current East Beaver Creek Boulevard easement. The Parties acknowledge that no streetscape or landscape improvements are located within the East Beaver Creek Boulevard easement as of the Execution Date, but that the Town shall maintain such streetscape or landscape improvements, if any, that may be installed after the Execution Date. Asphalt overlays shall not be required prior to Dedication of each phase of Main Street and, as set forth in Section 4.2(d), the Town shall undertake responsibility for asphalt overlays for each phase of Main Street only after Dedication of each such phase of Main Street. From and after Dedication of each phase of the permanent alignment of Main Street, the terms and conditions of clause (iii) below shall apply to such Dedicated phase. (iii) Future Public Roads and Rights-of-Way . Future public road rights-of-way (including future phases of the permanent alignments of Main Street and East Beaver Creek Boulevard) shall be Dedicated to the Town by Recording of the pertinent final plat or, if acceptable to the Town, by Recording of a special warranty deed in the form attached as Exhibit B of this Development Agreement upon generally the same terms and conditions as the conveyances referenced in clause (i) above. Upon completion of construction, Public Improvements located within public road rights-of-way shall be Dedicated to the Town by bill of sale. Concurrently with the Dedication, the Town shall grant Preliminary Acceptance of the pertinent property interests and Public Improvements. Upon expiration of the warranty period and resolution of any warranty matters that might arise during the Preliminary Acceptance period, the Town shall grant Final Acceptance. With respect to the primary road providing access to Planning Area K, the Town and Master Developer acknowledge it is intended that the road will be a public road from the Post Boulevard roundabout located north of Interstate 70 to a point approximately adjacent to the northwest corner of Lot 73 as indicated on the PUD Master Plan in effect as of the Effective Date, and will be a private road from that point through the remaining area of Planning Area K. The final point of demarcation will be established at the timing of final subdivision plat. The Town shall have no maintenance or snow removal responsibility for the portion of such road that is private. (iv) Sidewalk Snow Removal. The Town’s obligation pursuant to this Development Agreement to remove snow from sidewalks shall be limited to Post Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment existing as of the Execution Date and the future final Main Street alignment), Swift Gulch Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along public roads shall be in accordance with generally applicable standards set forth the Municipal Code (as amended from time to time) and applied uniformly throughout the Town. E-13 1001679.22 FINAL (c) Phased Road Improvements. (i) Generally. All roads, including Main Street and East Beaver Creek Boulevard (as such roads are identified on the PUD Master Plan), may be developed in phases in accordance with the road standards set forth in Exhibit F of the PUD Guide and as warranted based on the applicable traffic study. (ii) Main Street. Without limiting the generality of the foregoing, construction of the final alignment of Main Street shall consist of converting the existing alignment and road surface from temporary to permanent by the phased construction thereof in accordance with the road standards set forth in Exhibit F of the PUD Guide. (iii) East Beaver Creek Boulevard. The Town shall not require completion of East Beaver Creek Boulevard as a through road until the earlier of: (A) such time as it becomes necessary to construct a particular phase of East Beaver Creek Boulevard to provide a means of ingress to and egress from Sites within Lot 1 that are undergoing vertical development and do not otherwise have access to a public street; or (B) such time as a particular development proposal within Lot 1 requires completion of the connection in order to preclude the impact of the approved development proposal from reducing the level of service (LOS) on Main Street below a designation of “C” (estimated to be in the range of approximately 8,000 to 11,000 vehicle trips per day) as established by traffic studies to be provided by a traffic engineer or firm licensed in Colorado in connection with the particular approved development proposal. Subject to review by the Town Engineer, the north/south alignment of East Beaver Creek Boulevard within Planning Areas C and D may be established to include an interim or permanent connection to Main Street (e.g., East Beaver Creek Boulevard can connect to Main Street east of Planning Area A and either continue to the roundabout at the southeast corner of Planning Area F in an interim condition or separate from Main Street and connect to the roundabout at the northeast corner of Planning Area F in either an interim or permanent condition) so long as the easterly (roundabout at Post Boulevard) and westerly (where East Beaver Creek Boulevard enters the Project) connections depicted on the PUD Master Plan are maintained and each segment of Main Street is maintained at not lower than LOS “C” (e.g., if the traffic studies demonstrate that LOS “C” can be maintained on the easterly segment of Main Street with an interim connection as described above, completion of the final through connection alignment of East Beaver Creek Boulevard would not be required). (d) Dry Utilities. In connection with the Dedication of any public road rights-of-way (whether by special warranty deed or by final plat), including those rights-of-way Dedicated pursuant to Section 3.3(b)(i) and subject to such reserved rights, Master Developer or the pertinent Landowner shall have the right to reserve the exclusive right to install, own, operate, maintain, repair, replace and control access to all “Dry Utilities” (as defined in the PUD Guide) located or to be located within Dedicated public road rights-of-way; provided, however, that such activities shall be coordinated with the Town and all such Dry Utilities shall be located in such a manner as to comply with Town requirements regarding separation from public utilities located or to be located within such rights-of-way. 3.4 Municipal Water; Water Rights Dedications. Certain water rights have been conveyed to, or otherwise acquired by, the Authority to be used in connection with the development of the Project and to serve uses within the Project, including some of the water rights and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to the Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights to water supplied by the Colorado River Water Conservation District (together with additional water rights, if any, Dedicated to the Town or to the Authority for such purposes after the Effective Date pursuant to Section 3.4(c), the “Water Rights”). Pursuant to and as more particularly described in the Tank Agreement: (i) as of the Effective Date, TCMD has conveyed to the Town, and the Town has thereafter conveyed to the Authority, certain interests in the Water Rights; (ii) the Water Rights conveyed to the Authority as of the Effective Date are deemed sufficient to provide potable water service up to a maximum of 106.3 acre-feet of consumptive use per year in accordance with depletion factors decreed in Case No. 97CW306; and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide the number of single family equivalents (SFE) of potable water service to the Project that is equivalent to 106.3 acre-feet of E-14 1001679.22 FINAL consumptive use per year, as more fully set forth in the augmentation plan approved in Case No. 97CW306. The amount of consumptive use attributable to potable water service pursuant to the depletion factors and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306 is calculated as 180.6 acre-feet per year less 74.3 acre-feet per year reserved by the Town for raw water irrigation and lake evaporation purposes [180.6 – 74.3 = 106.3]. The 106.3 acre-feet of consumptive use is referred to for purposes of this Section 3.4 as the “potable water allocation” and the 74.3 acre-feet of consumptive use is referred to herein as the “raw (non-potable) water allocation.” Additionally, the Tank Agreement provides that the Town has certain obligations with respect to providing municipal water service to the Project under circumstances where the Authority fails to provide such services due to dissolution or otherwise. (a) Water Bank. Master Developer and the Town shall establish and jointly maintain a cumulative written record (the “Water Bank”) that documents: (i) the total Water Rights, stated as the total “potable water allocation” and the total “raw (non-potable) water allocation;” (ii) the specific portion of the “potable water allocation” that is assigned to particular Sites; (iii) the specific portion of the “raw (non-potable) water allocation” that is assigned to each parcel of irrigated area or lake surface for evaporation replacement within the Property (including such raw water uses as the Town has agreed to serve pursuant to this Development Agreement and the Tank Agreement) and (iv) the “potable water allocation” and the “raw (non-potable) water allocation” remaining available to be assigned for use within the Property. In connection with each final subdivision plat for a Site (whether processed administratively or formally) or building permit (if no water allocation, or insufficient water allocation, has previously been assigned to such Site), and subject to Subsection 3.4(c), Master Developer shall designate the portion of the “potable water allocation” and the “raw (non-potable) water allocation” that is assigned for development of the Site, and concurrently with approval of the pertinent final subdivision plat (or issuance of the pertinent building permit(s)) the Water Bank shall be updated to reflect such allocation and to reflect the corresponding reduction in the “potable water allocation” and the “raw (non-potable) water allocation” remaining available for use within the Property. Lot 1 as it is configured on the Effective Date shall be exempt from the foregoing requirement, but parcels within Lot 1 that are created by further subdivision of Lot 1 for purposes of development shall be subject to the foregoing requirement. The amount of consumptive use required to service development shall be based on the estimated demand, depletion factors and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306. (b) Return of Water Rights to Water Bank. If the amount of the “potable water allocation” and the “raw (non-potable) water allocation” assigned for any particular Site exceeds the amount of the “potable water allocation” and the “raw (non-potable) water allocation” actually required to serve the Site based upon actual development and final build-out thereof (such actual “potable water allocation” and “raw (non-potable) water allocation” demand to be determined in accordance with generally applicable requirements of the Authority and in accordance with the depletion factors decreed in Case No. 97CW306), the excess and unused portion of such water allocation shall be returned to the Water Bank and the Water Bank shall be revised to reflect that such excess and unused portion of such water allocation is available for assignment and is no longer assigned to the original Site. Excess and unused water allocation amounts returned to the Water Bank shall be available for allocation in accordance with Section 3.4(a) as though such water allocation amounts had not previously been allocated from the Water Bank to serve a particular Site. The determination of excess portion of any water allocation shall be determined by the Town and subject to the approval of the Authority, pursuant to their respective generally applicable requirements, and shall be based on consumptive use of the final build-out of any Site in accordance with the depletion factors and other provisions of the decree in Case No. 97CW306. The Town may require water usage restrictions or maintenance requirements to prevent any future increase of consumptive water use above the amount determined necessary to serve the final build-out of any Site. (c) Additional Water Rights. (i) For the Property. Full build out of the Project as contemplated by the Development Plan may require in excess of 180.6 acre-feet of consumptive use. If the aggregate total Water Rights is insufficient to support full development of the Project in accordance with the decree in Case No. 97CW306 and the PUD E-15 1001679.22 FINAL Guide, and all available water allocations under the Water Rights have been assigned to Sites (whether developed or undeveloped) such that there is no water allocation remaining in the Water Bank, no further development may occur within the Property unless and until, with respect to the water allocation required to support such further development: (A) additional water rights are Dedicated resulting in additional water allocation amounts being available for assignment pursuant to the Water Bank; or (B) payment is made of fees in lieu of additional water rights Dedication; or (C) previously allocated but unused water allocation amounts are re-assigned from the original Site, and/or from raw (non-potable) water uses to potable uses, and returned to the Water Bank in accordance with Section 3.4(b). Acceptance of fees in lieu of additional water rights Dedication shall be subject to the sole discretion of the Town. (ii) For a Specific Site. If the water allocation amounts assigned to a Site in connection with a Development Application are not sufficient to serve the level of development proposed in the Development Application, the Town may condition approval of the Development Application on the Applicant satisfying the water allocation requirements for the Development Application by one or a combination of: (A) obtaining Master Developer’s allocation of additional water allocation amounts from the Water Bank; (B) Dedicating such additional water rights (meeting the generally applicable requirements of the Authority and the Town) as may be required to support the proposed level of development; or (C) paying such fees-in-lieu of water rights Dedication as may be required to fully satisfy the water allocation amounts requirement for the Development Application. The Dedication of additional water rights and the payment of fees-in-lieu of water rights Dedication shall be subject to review by the Town in accordance with the Municipal Code, and subject to approval by the Authority or its successor. Under such circumstances, the additional water rights Dedication or payment of fees-in-lieu shall be a condition precedent to, as applicable, issuance of the building permit or Recording of the final subdivision plat. (iii) Under the circumstances addressed in the foregoing clause (i) and clause (ii), which provisions shall be strictly construed against precluding development, the Town shall have no obligation to Record a final subdivision plat or issue a building permit with respect to a particular Site unless the requisite additional water allocation amounts obligation is satisfied in accordance with this Section 3.4(c). The determination of whether Dedication of additional water rights or payment of fees in lieu shall be in accordance with generally applicable rules and regulations of the Authority and the Town. Dedications of water rights, if required, shall be made in accordance with generally applicable Town rules, regulations and agreements with the Authority as in effect from time to time, it being acknowledged that the Town’s generally applicable rules, regulations and agreements with the Authority in effect as of the Effective Date require Dedication to the Town and conveyance of such water rights by the Town to the Authority. (d) Building Permits; Moratoria. The Town shall not withhold issuance of building permits, certificates of occupancy or processing/approval of Development Applications, nor shall the Town impose or enforce any moratorium on development within the Project, on the basis of insufficient Dedication of water rights for development which does not exceed the consumptive use of the water rights that have been Dedicated pursuant to the Tank Agreement (or which does not exceed the consumptive use of any such additional water rights that may subsequently be Dedicated or otherwise conveyed) at such time. (e) Additional Water Tanks. If TCMD, VMD, any Applicant or any other party undertakes to construct one or more water storage tanks at an elevation higher than the water storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any contrary provision of the Municipal Code (as in effect from time to time), the Town shall not require the Applicant to seek a 1041 permit and shall not require the tank site to be a legally subdivided parcel (provided the owner of the water storage tank has an easement for the operation and maintenance thereof, and further provided that the Town may require the tank site easement area to be platted at such time as the pertinent lot(s) or tract(s) within Planning Area K are platted). If construction of any such water storage tank is undertaken independent and in advance of development of the portion of the property to be served by the water storage tank, the Town shall not require execution of a Public Improvement Agreement or monetary collateral (cash escrow, E-16 1001679.22 FINAL letter of credit or similar mechanism) for assurance of completion of the water storage tank; provided, however, that the Town may require a bond for the purpose of ensuring erosion control, mitigation of safety hazards, fencing and other matters related to properly securing the site if construction is discontinued indefinitely prior to completion. If construction of any such water storage tank is undertaken as a condition of approval of a Development Application for development of a Site with respect to which service will be required to be provided from the to be constructed water storage tank, the Town may require construction of the water storage tank and assurance of completion thereof pursuant to the terms and conditions of a Public Improvement Agreement as otherwise provided in this Development Agreement. The Town shall have no obligation to issue a temporary or final certificate of occupancy for a habitable structure within any Site with respect to which water service cannot be provided without such water storage tank becoming operational until such time as the pertinent water storage tank becomes operational. The foregoing shall not preclude the Town from issuing a building permit prior to completion of such a water storage tank if the Town determines such action to be consistent with public health, safety and welfare under circumstances then pertaining (for example, the water storage tank is reasonably anticipated to be operational prior to completion of the improvements for which the building permit is issued and the issuance of the building permit is conditioned on the water storage tank becoming operational prior to issuance of a temporary or permanent certificate of occupancy). (f) Tap Fees; Town Obligations Upon Assuming Authority Obligations. If the Town undertakes to provide water service to the Property in connection with dissolution of the Authority or otherwise, the Town shall charge water tap fees and usage charges to users within the Property on a uniform, non-discriminatory basis with other users within the Town. The Town shall remit monthly to TCMD,With respect to such water tap fees collected by the Town for providing water service to any user within the Property, the Town shall remit 100% of such all such fees on a monthly basis: (A) if collected during the 2013 Bond Repayment Period [Kutak to provide definition of this term (defined term may be other than 2013 Bond Repayment Period) to reflect period w/in which VMD is issuer and obligations to BNP remain unperformed], to VMD or to TCMD, as required by the 2013 Reissue Documents during the 2013 Bond Repayment Period; or (B) if collected after expiration of the 2013 Bond Repayment Period, either (1) to TCMD, or, (2) if the Town receives written notice from TCMD disclaiming an interest in all or a portion of such fees for a stated period of time and so directing the Town, the stated portion to VMD during the stated period, the stated portion to TCMD during and after the stated period, and in any event in accordance with the terms and conditions set forth in such written notice. The Town’s obligation to remit such water tap fees pursuant to this Section 3.4(f) shall be subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, 100% of all water tap fees collected by the Town with respect to providing water service to any user of the Property. Alternatively, the Town may direct that all such users remit water tap fees directly to TCMD and or VMD in accordance with clauses (A) and (B) above. The Town expressly disclaims any right, title or interest in or to any water tap fees payable in connection with development within the Property, and acknowledges that all such water tap fees constitute District Revenues and, are the property of, and shall be due and payable to, TCMD and/or VMD in accordance with clauses (A) and (B) above. 3.5 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary sewer service to the Project. The topography of Planning Area K, the size of the lots contained in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and from the facilities of the Sanitation District, together with the comparative ease of servicing Planning Area K with individual septic tank and leach field systems, render all or designated areas within Planning Area K appropriate for exclusion from the Sanitation District. Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all or any part of Planning Area K, whether initiated by Master Developer or the Developer of such portion of Planning Area K. 3.6 Drainage Plans; Stormwater Management. Drainage plans and stormwater management plans required in connection with the processing of any Development Application shall be in accordance with the terms and conditions of the PUD Guide. Without limitation of the foregoing, in processing any Development Application, the Town shall incorporate the assumptions of the drainage study prepared by David Johnson for the Property with respect to reducing the calculated stormwater flows, management and detention requirements based on the mitigating effect of vegetation within the Property, and the assumptions set forth therein shall govern and control over any conflicting provisions or assumptions in the Town’s drainage master plan. However, if the Town amends its drainage master plan, which E-17 1001679.22 FINAL amendment results in less restrictive or less burdensome provisions than set forth in the David Johnson drainage study, such less restrictive or less burdensome provisions in the Town’s drainage master plan shall apply to the Property. 3.7 Land Dedications. As generally described in Recital K, prior to the Execution Date the pertinent Landowner fully performed certain land Dedication obligations specifically required to be performed pursuant to the Original Agreement, and all such Dedications shall be deemed to have been granted Final Acceptance. This Section 3.7 sets forth the sole unperformed and/or additional obligations of Master Developer, EMD, the Developer Affiliates, or any pertinent Landowner to Dedicate land (subject, however, to adjustment pursuant to Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in this Section 3.7. Accordingly, except as otherwise set forth below, during the Term and notwithstanding any current or future provision of the Municipal Code to the contrary (except pursuant to Section 3.9(b), if applicable), the Town shall not impose any land Dedication requirement, impact fee requirement or development exaction of any sort, except for the following, the performance of which together with prior land dedications and related exactions fully satisfies and extinguishes any dedication, impact fee and/or development exaction obligations pertaining to or in connection with development of the Project: (a) School Site Dedication. The Original Agreement set forth certain requirements regarding the Dedication of land or cash in lieu thereof to address the impact of the Project on the school system. Pursuant to the Settlement Term Sheet, the school site provision of the Original Agreement has been modified as set forth in this Section 3.7(a) and, as of the Effective Date, Ordinance No. 06-17 and all conditions and restrictions set forth therein are rendered legally inoperative, void and of no further force or effect. (i) Parcels to be Conveyed. The following conveyances (collectively, the “School Site Dedication”) shall constitute full satisfaction of all requirements under the Municipal Code (as in effect from time to time) and other current or future Town regulations with respect to mitigation of the Project’s impact on the school system: (A) Concurrently with the Effective Date, TC-RP conveyed to the Town the approximately 3.536 acre Site designated on the PUD Master Plan as Planning Area E (i.e., Lot 3, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)). Neither TC-RP, Master Developer, TCMD, VMD, any Developer Affiliate nor any Landowner (other than the Town or a state accredited educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public Improvements or other on-site or off-site improvements for Planning Area E, all such obligations being the sole responsibility of the Town. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area E. (B) EMD (or the Landowner at the pertinent time), shall Dedicate to the Town an approximately 3.764 acre Site within Planning Area I upon Recording of the initial final subdivision plat within Planning Area I. Neither EMD (or the then-Landowner), TCLLC, TCMD, VMD, any Developer Affiliate, or any other Landowner (other than the Town or a state accredited educational entity to which the Town has conveyed such Site) shall have any obligation with respect to provision of any Public Improvements for the approximately 3.764 acre Site within Planning Area I. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the Planning Area I Site concurrently with Recording of the conveyance documents and no Acceptance, assurance of completion requirement or warranty period requirements shall apply. Access to the Planning Area I Site from a public street and extension of utilities and other Public Improvements shall be addressed through the final subdivision plat process. (ii) Use Restriction. Notwithstanding anything to the contrary set forth in the Municipal Code (as in effect from time to time) or any other statute, ordinance, regulation or the like, use of the School Site E-18 1001679.22 FINAL Dedication parcels shall be restricted to state accredited education facilities serving grades K through 12 (or any portion of such grades). Each special warranty deed conveying a School Site Dedication parcel shall incorporate the foregoing use restriction, which use restriction shall be independently enforceable as a deed restriction and not merged into or construed to preclude enforcement of the use restriction imposed by this Section 3.7(a)(ii). Any use of the School Site Dedication parcels shall be subject to prior approval by the Design Review Board, including potential future uses including but not limited to pre-school, day care, community education, cultural, and/or are classes, museum, or recreational. (iii) Form of Conveyance. Conveyance of the Planning Area I School Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, shall be without any reversionary clause, subject to all matters of Record other than monetary liens, and shall contain an express use restriction consistent with the foregoing Section 3.7(a)(ii). Conveyance of the Planning Area E School Site Dedication parcel was effected by Recording of a special warranty deed in the form attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens, and containing an express use restriction consistent with the foregoing Section 3.7(a)(ii). (iv) Additional Conditions. (A) Any use undertaken and any improvements constructed or installed within the School Site Dedication parcels shall comply with the terms of the Development Plan and shall be subject to review and approval by the Design Review Board. Prior to development of the School Site Dedication parcels for school purposes, the Town shall be responsible for installing and maintaining any improvements permitted to be made within the School Site Dedication parcels in accordance with the use restriction referenced in Section 3.7(a)(ii). After Dedication of the School Site Dedication parcels to the Town, the Town shall be responsible for controlling all noxious weeds within the School Site Dedication parcels. (B) If Eagle County School District demonstrates a need for a school site within the Project based on the impact of development within the Project, the Town, Master Developer and EMD shall use best efforts to combine the park land dedications contemplated in Section 3.7(d) with the Planning Area I School Site Dedication parcel to create a consolidated site of sufficient size to meet the reasonable needs of the Eagle County School District. The preceding sentence shall not be construed to have the effect of: (i) creating a legal right of Eagle County School District to obtain a school site within Planning Area I or any other area of the Property; (ii) creating any legal obligation of the Town, EMD, Master Developer or any Landowner or Applicant to provide a school site on Planning Area I or any other area of the Property to the Eagle County School District; or (iii) creating a legal obligation of the Town, EMD, Master Developer, any Landowner or any Applicant to combine the park land Dedication with the Planning Area I School Site Dedication parcel. Eagle County School District shall not be construed to be, and the Parties expressly intend that Eagle County School District shall not be, an Intended Beneficiary. (C) The Town may lease or convey such School Site Dedication parcels to educational districts or organizations upon such terms as the Town determines in its sole discretion provided that: (i) such lease or conveyance shall be for nominal consideration; and (ii) such lease or conveyance shall be expressly subject to the use restriction established pursuant to Section 3.7(a)(ii) and the applicable deed restriction as contemplated by Section 3.7(a)(iii). (b) Dedication of Planning Area B. Concurrently with the Effective Date, TC-RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD Master Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded E-19 1001679.22 FINAL on the Effective Date)). Neither TC-RP, Master Developer, TCMD, VMD nor any Landowner (other than the Town) shall have any obligation with respect to provision of any Public Improvements or other on-site or off-site improvements for Planning Area B, all such obligations being the sole responsibility of the Town and not of AURA. Accordingly, the Town hereby grants Final Acceptance with respect to Dedication of Planning Area B. Any construction of buildings or facilities or landscaping improvements on Planning Area B, or any Public Improvements required in connection with the Town’s development of Planning Area B, shall be subject to prior approval by the Design Review Board. The Town may create a plan for the development and use of Planning Area B, which may be adopted by the Design Review Board, and which shall then serve as a guide for review of uses and development of Planning Area B by the Design Review Board. Any use or plan for use of Planning Area B shall allow and incorporate the ability to construct for storage and/or augmentation purposes a water feature which can provide at least 2 acre feet of water storage (which shall not exceed a total surface area of 0.6 acres, including inflow and outflow on Planning Area B). Notwithstanding the preceding sentence, the Town shall have the right to maintain and operate as public open space all or a portion of Planning Area B which is not yet developed in accordance with this Section. Pursuant to the PUD Guide, the Town shall administratively process and approve subdivision re-platting of Planning Area B to adjust the boundary of Planning Area B in connection with final development of an adjacent Planning Area. The Town shall not unreasonably deny, condition or delay final action with respect to a Development Application to administratively re-plat Planning Areas B as provided herein. Until such time as Planning Area B is developed or improvements are constructed thereupon that preclude use of Planning Area B for snow storage, the Town and Master Developer (or its assignee(s)) shall have the right to use Planning Area B for snow storage in accordance with the terms of the Revocable License Agreement. (c) Planning Areas OS-5 and OS-6. EMD (or the Landowner at the pertinent time) shall convey Planning Areas OS-5 and OS-6 to the Town concurrently with Recording of the initial final subdivision plat for Planning Area I. Neither EMD (or the then-Landowner), Master Developer, VMD nor TCMD shall have any obligation with respect to provision of any Public Improvements for Planning Areas OS-5 and OS-6. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of Planning Areas OS-5 and OS-6 concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. Such conveyance shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, and shall reserve to grantor (or its assigns, including a District) the right to construct a vehicle/pedestrian bridge crossing across Planning Areas OS-5 and/or OS-6 including the ability to construct and maintain bridge abutments and appurtenant roadways. Planning Areas OS-5 and OS-6 shall be conveyed without any reversionary clause, subject to all matters of Record other than monetary liens. The deed shall contain an express use restriction limiting use of the sites to open space and no other purposes (except those uses reserved to grantor as provided above). The Town shall be responsible for installing and maintaining all improvements to be made within the open space parcels (other than those improvements grantor may cause to be installed per the reservation described above). After Dedication to the Town, the Town shall be responsible for controlling all noxious weeds within the open space parcels. Any improvements to be located within Planning Areas OS-5 and/or OS-6 shall be subject to Design Review Board review and approval. (d) Park Site Within Planning Area I, J and/or K. As determined by Master Developer in its sole discretion, Master Developer shall cause the pertinent Developer Affiliate to Dedicate, or EMD (or the Landowner at the pertinent time) shall Dedicate, 5.8 acres of park land to be located within Planning Area I, J and/or K. After Dedication, the Town shall be responsible for improving and maintaining the park lands Dedicated pursuant to this Section 3.7(d) in the Town’s sole discretion with regard to timing and appropriations. Neither the then-Landowner, Master Developer, VMD nor TCMD shall have any obligation with respect to provision of any Public Improvements for, or otherwise to improve, such Dedicated park land acreage. Accordingly, the Town shall grant Final Acceptance with respect to Dedication of the park land acreage concurrently with Recording of the conveyance documents and no Preliminary Acceptance or warranty period requirement shall apply. The foregoing obligation may be accomplished by one or more conveyances totaling not less than 5.8 acres in the aggregate. Such conveyance(s) shall be by special warranty deed in the form attached as Exhibit B to this Development Agreement, without any reversionary clause, subject to all matters of Record other than monetary liens. The deed(s) shall contain an express use restriction limiting E-20 1001679.22 FINAL use of the Site(s) to, as applicable to the particular Site, public park purposes and no other purposes, but which may include trail heads, trail connections, dog park, or natural park (i.e., wetland/natural resource protection area, hillside slopes, view planes, streambed/buffer and similar natural condition preservation areas). The Town shall be responsible for installing and maintaining all improvements to be made within the park site(s), and for controlling all noxious weeds within the park site(s). 3.8 Exactions, Fees and Payments. As generally described in Recital K, prior to the Execution Date development exactions, fees and payments required to be performed and/or made pursuant to the Original Agreement were fully or partially performed and, to the extent partially performed are hereby waived and extinguished pursuant to the Settlement Term Sheet and this Development Agreement. This Section 3.8 sets forth the sole and exclusive obligations and requirements with respect to exactions, impact fees and payments required in connection with development of the Project during the Term (subject, however, to adjustment pursuant to Section 3.9(b), if applicable), and the assumptions underlying the Finance Plan are expressly based upon and reliant on the specific land Dedication requirements set forth in Section 3.7. Accordingly, and notwithstanding any current or future provision of the Municipal Code (except pursuant to Section 3.9(b), if applicable), the Town shall not impose exactions or fees upon development within the Property for impacts related to schools, fire protection, emergency services, municipal facilities, public transit, municipal parks or open space which are in addition to the exactions, fees and payments described in this Development Agreement and/or the PUD Guide, or which have been previously paid or performed under the Original Agreement (such exactions, fees and payments fully satisfying and extinguishing any impact fee and/or development exaction obligations in connection with development of the Project). 3.9 Other Generally Applicable Taxes, Assessments and Fees. (a) General. All current and future taxes, and all current and future assessments and fees (other than the exactions, development impact fees and payments addressed by Section 3.8), imposed by the Town on a uniform and non-discriminatory basis within the Town and not expressly addressed in this Development Agreement or in the PUD Guide shall apply in the same manner and to the same extent within the Property as within the rest of the Town. (b) Density Increases by PUD Guide Amendment. The land dedication obligations set forth in Section 3.7 and the exaction, fee and payment obligations set forth in Section 3.8 are, as stated in such provisions, the sole and exclusive obligations with respect to such matters; provided, however, that such obligations are predicated on the maximum residential and commercial densities permitted by the PUD Guide in effect as of the Effective Date (including the minimum residential and commercial densities set forth therein for Planning Area I). Accordingly, to the extent the PUD Guide in effect as of the Effective Date is amended after the Effective Date to increase the maximum commercial and/or residential densities permitted by the PUD Guide (as so amended), the Town shall have the right to evaluate the impacts of such increased densities and to condition approval of such PUD Guide amendment on the imposition of additional land dedication and/or exaction, fee or payment obligations that correspond to the increment of increased density approved in such amendment. The additional requirements, if any, shall be based on the Municipal Code requirements in effect as of the submittal date of the pertinent PUD Guide amendment as applied only to the increment of increased density approved in such PUD Guide amendment. By way of example, if a PUD Guide amendment is approved which increases the maximum commercial density within the Project by 100,000 square feet, the maximum additional obligation with respect to matters addressed in Sections 3.7 and 3.8 shall be limited to what would be required to mitigate 100,000 square feet of commercial density under the Municipal Code requirements in effect on the submittal date of the PUD Guide amendment application. With respect to Planning Area I, any future PUD Guide amendment which establishes the minimum residential and commercial densities stated in the PUD Guide in effect as of the Effective Date shall not result in the imposition of any additional obligations with respect to matters addressed in Sections 3.7 and 3.8, but any amendment which has the effect of approving commercial or residential densities for Planning Area I in excess of the minimum densities stated in the PUD Guide in effect as of the Effective Date may require additional mitigation for the increment of increased density in the manner described above. E-21 1001679.22 FINAL 3.10 Prioritized Capital Projects. The Parties have identified the subset of Public Improvements set forth in Exhibit D (the “Prioritized Capital Projects”) as having particularly high value in supporting and encouraging the types of development within the areas of the Project that would produce relatively greater District Revenue and Municipal Payment revenues, at relatively less Public Improvement cost, and at a relatively earlier point in the development sequence. It is the Parties’ intent that, subject to market conditions and the terms and conditions of this Development Agreement (including but not limited to Sections 2.5 and 3.3), priority will be placed on supporting and encouraging investment in the Prioritized Capital Projects in order to support and encourage development to occur within Planning Areas A, C, D, F and J such that the Supplemental Bond capacity available pursuant to the Financing Plan is utilized to encourage development that has a relatively greater probability of producing relatively greater increases in District Revenue and Municipal Payments. Accordingly, unless the Town and Master Developer agree otherwise in writing, the following requirements shall be binding: (a) East Beaver Creek Boulevard. Until such time as AURA has fully funded completion of East Beaver Creek Boulevard as contemplated by Section 6.7(g)(i) or such earlier time as East Beaver Creek Boulevard has been completed as a through road, $6,200,000 (adjusted as stated below) of the Credit PIF Cap shall be reserved to fund completion of East Beaver Creek Boulevard in its permanent alignment in the manner contemplated by and subject to the terms, conditions, phasing, design standards and construction timing obligations set forth in the PUD Guide and Sections 3.3(b)(iii) and 3.3(c) of this Development Agreement. The foregoing amount shall be reduced from time to time in an amount equal to the amount of Capital Project Costs (whether utilizing Credit PIF Revenues or TIF Revenues) for each phase of East Beaver Creek Boulevard that is granted Preliminary Acceptance, excluding from such reduction the Capital Project Costs, if any, attributable to any interim connection that is not incorporated into the permanent alignment of East Beaver Creek Boulevard as a through road pursuant to Section 3.3(c)(iii). Any portion of the foregoing reserved amount that has not been utilized upon completion of the permanent alignment of East Beaver Creek Boulevard as a through road, or upon a determination that the LOS requirement stated in Section 3.3(c)(iii) has been satisfied upon full build-out of Lot 1, shall be released and made available to fund other Cap Amounts as provided in Section 3.10(c). (b) Other Reserved Funds. Of the total Supplemental Bond capacity available under the Credit PIF Cap, a total of $17,500,000 (inclusive of the $6,200,000 reserved pursuant to Section 3.10(a)) shall be reserved to fund Capital Project Costs incurred in connection with construction of the Prioritized Capital Improvements. (c) Balance of Supplemental Bond Capacity. The Districts may utilize the balance of the Supplemental Bond Capacity available under the Credit PIF Cap (after reservation and utilization of the funding capacity as described in clauses (a) and (b) above) may be utilized in TCMD’s discretion to fund other Cap Amounts, with the prioritization of the Capital Projects so funded determined in such Districts’ discretion and subject to the particular District having been assigned the right to receive and utilize such Credit PIF Revenues pursuant to the PIF Covenants. 3.11 Landscaping/Visual Mitigation for Hurd Lane/Eagle Bend. In order to provide off-site mitigation for the benefit of the residents of Hurd Lane and Eagle Bend, Master Developer will, subject to receiving the right-of-way license or other form of approval from the Town and as otherwise subject to the terms and conditions of this Section 3.11, cause the following to be installed, in locations mutually determined by Master Developer and the Town, within the Hurd Lane right-of-way (which is owned by the Town): (i) 75 each of 10’ Colorado Spruce Trees (either Blue or Green); (ii) 55 each of 6-7’ Lilacs; and (iii) Irrigation – Drip poly tubing with three emitters per plant. Master Developer will be responsible for the cost of the planting materials, delivery of same to the site, labor and equipment for planting of the plant materials, and for parts and installation of the irrigation system. Installation will be undertaken during the planting season in the spring of the year following the Effective Date. The Town will be solely responsible, at its sole expense, to provide the water tap(s) and water rights (from the Town’s water rights inventory) for irrigation of the plant materials, any vaults(s) required for the tap connection, for irrigation of the plant materials, and for maintenance and replacement of the planted materials commencing on the day of installation. Additionally, the Town shall have the obligation to provide a license or other form of legal right as may be necessary to enable Master Developer to perform E-22 1001679.22 FINAL such plantings, and Master Developer shall have no obligation to perform such plantings unless/until the Town has issued the appropriate license or similar form of approval to perform the work in the right-of-way. From and after the initial installation, Master Developer shall have no further obligation with respect to the plant material or irrigation system, such obligations being fully assumed by the Town as of the date of installation. Master Developer may satisfy this obligation with the Town’s consent by tendering a cash payment to the Town in an amount acceptable to the Town for the sole purpose of purchasing and installing the landscaping/visual mitigation described herein, and if the Town receives and accepts such cash payment then the Town shall provide to Master Developer a written acknowledgement and release that Master Developer has satisfied in full its obligations in this Section 3.11. ARTICLE 4 MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA 4.1 Municipal Services. The Town shall have the ongoing responsibility and obligation to provide all municipal services to the Property and the Project including, without limitation, police protection, snow removal and road maintenance, maintenance (including repair and replacement) of streetscape improvements and landscaping within public road rights-of-way, bus transportation services, asphalt overlay of public roads, building code enforcement and other administrative services equivalent (except as expressly modified or qualified by Sections 3.3(b), 3.4, 4.2(c) and 4.2(d)) to those services provided to any other area of the Town on a uniform and non-discriminatory basis (collectively, the “Municipal Services”). The Parties acknowledge the Town provides public transit services as part of the Municipal Services based on a variety of factors including demand, the Town’s transit planning policies, funding availability and similar considerations and, accordingly, does not provide public transit service within all areas of the Town or make a representation or commitment regarding when and to what extent the Town may provide public transit service within the Property. As such, the Town shall not deny any Development Application based on a lack of transit services or the inability of the Town to provide transit services, and no approval of a Development Application shall be conditioned upon any party or entity other than the Town providing transit services. The Town’s receipt of Municipal Payments during the Term as generally described in Section 6.5, together with the additional revenues described in Section 6.16, is in consideration of the Town’s providing Municipal Services. The Municipal Payments and additional revenues described in Section 6.16 shall be conclusively deemed and construed to fully offset the Town’s cost of performing its Municipal Services obligations pursuant to this Development Agreement, such that no Party shall assert or claim that such Municipal Payments revenues are either inadequate or excessive, no Party shall assert or claim any right to an increase in or a reduction of such Municipal Payments revenues, and the Town shall not withhold, suspend or terminate the provision of any of the Town’s Municipal Services obligations pursuant to this Development Agreement. After expiration of the Term, the Town shall continue to provide Municipal Services in accordance with the Town’s general obligation to provide municipal services throughout the Town. 4.2 Town Obligations. Without limiting or negating any Town obligation set forth in another Article of this Development Agreement or narrowing by implication the Town’s obligations pursuant to Section 4.1, the Town shall perform the following obligations: (a) Tax Credit. As contemplated by the Original Agreement and codified at Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the Execution Date), the Town has established the Tax Credit. During the Term, the Town shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Tax Credit from attaching to Taxable Transactions occurring within the Project, including but not limited to enacting any amendment to Sections 3.08.035, 3.12.065 and/or 3.28.075, or to any other provision of the Municipal Code, that would have such effect. (b) Cooperation in Implementation of Add-On RSF. As more particularly set forth in Section 6.5(d), the Town will cooperate with the PICs to effect the implementation of the Add-On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating with the PICs in meetings with representatives of such retailers E-23 1001679.22 FINAL regarding the nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request from time to time. (c) Assumption of TCMD Maintenance Obligations. From and after the Effective Date, the Town shall assume and be responsible for the performance of all of TCMD’s and VMD’s current and future maintenance, repair and replacement obligations with respect to Public Improvements (including but not limited to all Dedicated and Accepted public road right--of--way landscaping, Nottingham Dam, Nottingham-Puder Ditch, irrigation systems and water wells, the wet well located within PA-F, tree replacements and, subject to Section 3.3(b)(iv), snow removal). The Town shall have sole discretion to determine the appropriate maintenance of Nottingham Dam, which shall include but is not limited to maintenance, repair, replacement, improvement, expansion, decommission, removal and deferral of any activity. Notwithstanding the forgoing, TCMD and/or VMD shall retain responsibility to cause the following obligations to be performed utilizing District Revenues available to itthem for such purposes: (i) Parking Structures. Maintenance of the existing Traer Creek Plaza public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 (identified as “Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date) and, except to the extent TCMD and the Town, TCMD and/or VMD otherwise agree in writing, any additional public parking facilities or structures that TCMD, VMD or another District may construct in the future. (ii) Lot 2 Internal Landscaping. Any landscaping maintenance obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007 to the extent arising from TCMDa District’s status as owner of the Traer Creek Plaza public parking structure located therein (identified as “Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date). (iii) Tract E. Maintenance of the park and flag pole located within Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at Reception No. 795007. (d) Asphalt Overlays. Subject to the terms and conditions of the Asphalt Overlay Agreement and Section 6.6, the Town shall perform asphalt overlays for all Dedicated public roads located in the Project subject to the following terms and conditions: (i) Prior to Termination of Joint Funding. Until the shared funding contributions terminate pursuant to Section 6.6(b): (A) The Town shall commence overlays on Dedicated roads within the Project at such time as jointly determined necessary by the Town and TCMD. (B) As more particularly set forth in the Asphalt Overlay Agreement (including but not limited to Section 5(b) thereof regarding deemed consent under certain facts), TCMD and the Town each must provide written approval prior to the release of any funds from the Asphalt Overlay Account. (C) The Town’s obligation to perform asphalt overlays shall be limited to the amount accumulated within the Asphalt Overlay Account. (D) The Town’s obligation to deposit funds into the Asphalt Overlay Account shall be limited to the portion of the Municipal Payments the Add-On RSF Collection Agent deposits on behalf of the Town pursuant to Section 5.2(c), and the Town shall have no obligation to contribute funds from any other source. (ii) After Termination of Joint Funding. From and after the date upon which the shared funding contributions terminate pursuant to Section 6.6(b): E-24 1001679.22 FINAL (A) The Town shall be solely responsible for all costs of asphalt overlays for Dedicated public roads in the Project. (B) The Town shall schedule and perform such asphalt overlays in a manner materially consistent and commensurate with other public roads in the Town having similar characteristics in terms of traffic volume, age of road surface and similar factors. (e) Easement for Access to Planning Area I. As of the Execution Date, the Town has acquired fee title to the Forest Service Village Parcel. The Town agrees and covenants that the Town shall provide consent, as the owner of the Forest Service Village Parcel, to EMD (or to the then-Landowner of Planning Area I) to submit a subdivision application for the Forest Service Village Parcel to plat and dedicate a public road right-of-way and to construct a public road in accordance with the applicable procedures and standards set forth in the PUD Guide and the Municipal Code. The Town has executed the Covenant and Temporary Easement Agreement in the form set forth in Exhibit C and shall cause the Covenant and Temporary Easement Agreement to be Recorded on the Effective Date (or as soon thereafter as practicable) and prior to the Town Recording any conservation easement or any other real estate instrument which may limit the ability to plat a public road right-of-way or construct a public road. The Covenant and Temporary Easement Agreement shall run with the land and any conveyance or grant by the Town of any interest in the Forest Service Village Parcel shall be expressly subject to the Covenant and Temporary Easement Agreement. The Town, as owner of the Forest Service Village Parcel, shall cooperate with EMD (or the then-Landowner of Planning Area I) with respect to establishing the alignment and platting of the right-of-way for the public road over the Forest Service Village Parcel. Construction, Dedication and Acceptance of the public road over the Forest Service Village Parcel shall be pursuant to the pertinent Public Improvement Agreement and the Covenant and Temporary Easement Agreement shall terminate upon Final Acceptance of the pertinent Public Improvements on the Forest Service Village Parcel. Should the Town not have acquired the Forest Service Village Parcel prior to such time as access is needed to commence the process for constructing an access road to Planning Area I, the Town agrees to acknowledge, confirm and represent to the owner of the Forest Service Village Parcel that the PUD Master Plan approved by the Town depicts a road crossing the Forest Service Village Parcel to provide access to Planning Area I. (f) Service Plans. The Town has adopted Ordinance No. 12-10 which amends Chapter 18 of the Municipal Code to state that certain that provisions concerning material modification do not apply to TCMD and VMD. During the Term, the Town shall maintain the foregoing amendment to Chapter 18 of the Municipal Code in effect without modification, shall not take any action to explicitly or implicitly repeal, reinstate, alter or re-impose those provisions of Chapter 18 of the Municipal Code from which TCMD and VMD were exempted by operation of Ordinance No. 12-10, and shall not impose other regulations which would have the effect of establishing definitions, requirements or procedures concerning the determination of material modification as applied to TCMD and VMD that are inconsistent with, more rigorous than or otherwise expand the scope of such determination as set forth in Colorado statues as may be amended from time to time. (g) Urban Renewal. If it is determined that Lot 1 will be included within an urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in accordance with Section 6.7, the Town shall, utilizing all authority legally available to it as a home rule municipality under Colorado law, take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7. 4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban renewal area and if the Town seeks consent of the Master Developer and Landowner(s) in accordance with Section 6.7, AURA shall take such steps as may be necessary to assure compliance with the conditions set forth in Section 6.7 and the related obligations set forth in Section 6.17. E-25 1001679.22 FINAL ARTICLE 5 OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND DEVELOPER AFFILIATES 5.1 Obligations of TCMD and/or VMD. Without limiting or negating any TCMD or VMD obligation set forth in another Article of this Development Agreement, TCMD and/or VMD, as applicable, shall perform the following obligations: (a) Asphalt Overlay. TCMD and/or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period) shall perform its obligationsthe funding obligation with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iii). (b) Notice of Financings. TCMD and VMD shall give to the Town forty-five (45) days’ prior written notice of itstheir respective intent to finance and/or construct any Capital Projects utilizing Supplemental Bonds. (c) Add-On RSF. TCMD and VMD shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add--On RSF. TCMD and VMD will cooperate with the PICs to effect the implementation of the Add--On RSF with respect to existing and future retail businesses within the Project, including but not limited to: (i) assisting in the coordination and implementation of reporting forms; (ii) participating in meetings with representatives of such retailers regarding the nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, neither TCMD nor VMD shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. (d) Utilization of Credit PIF Revenues. During the Term, TCMD and VMD shall utilize Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a) and shall apply Credit PIF Revenues in the priority set forth in Sections 6.9(b), 6.9(c) and 6.9(d). (e) Cooperation and Compliance. TCMD shall provide its reasonable cooperation and compliance with applicable legal requirements to allow a lawfully eligible candidate designated at the option of BNP to be elected or appointed as a director of TCMD. 5.2 Obligations of PICs. (a) Credit PIF. During the Term, the PICs shall take all legally available actions to maintain the Credit PIF in effect and shall take no action to modify, terminate, suspend or otherwise interfere with TCMD’s and/or VMD’s right to receive and utilize their respective portions of the Credit PIF Revenues for the purpose of performing their respective obligations pursuant to this Development Agreement. (b) Add-On RSF. Concurrently with the Effective Date, the board of directors of each PIC has caused the Recording of an amendment to the respective PIF Covenants having the effect of imposing the Add-On RSF. In order to effectuate the Parties’ intent regarding the collection and remittance of the Add-On RSF Revenues, each PIC, the Town and the Add-On RSF Collection Agent have executed and legally entered into an Add-On RSF Collection Services Agreement. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, each PIC shall: (i) Collection of Add-On RSF. Pursuant to its authority under and in accordance with the terms and conditions of the PIF Covenants, take all legally available actions to maintain the Credit PIF in effect, continue to impose the Add-On RSF and undertake to cause the collection and remittance of the Add-On RSF Revenues by or to the Add-On RSF Collection Agent for disposition in accordance with the applicable Add-On RSF Collection Services Agreement and the terms and conditions of this Development Agreement. E-26 1001679.22 FINAL (ii) Remittance of Municipal Payments. (A) Undertake to cause the Add-On RSF Collection Agent to remit to the Town all Municipal Payments as and when due pursuant to the terms and conditions of the applicable Add-On RSF Collection Services Agreement and this Development Agreement. (B) Take no action to modify, terminate, suspend or otherwise interfere with the Town’s right to receive and utilize the Municipal Payments in the manner and for the purposes authorized pursuant to this Development Agreement and the applicable Add-On RSF Collection Services Agreement. (c) Asphalt Overlay Account. As more particularly set forth in the Add-On RSF Collection Services Agreement, the PICs (jointly with the Town) shall cause the Add-On RSF Collection Agent to deposit the designated portion of the Municipal Payments into the Asphalt Overlay Account on behalf of the Town as follows: (i) Initial Five Years. Commencing in 2013 and continuing through and including November 1, 2017, the Add-On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF Collection Agent. (ii) Subsequent Years. Commencing in 2018 and continuing through and including the date on which termination occurs pursuant to Section 6.6(b), the Add-On RSF Collection Agent shall deposit into the Asphalt Overlay Account the first $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by the Add-On RSF Collection Agent. (iii) Post-Termination. From and after the date on which termination occurs pursuant to Section 6.6(b), the PICs (jointly with the Town) shall cause the Add-On RSF Collection Agent to remit all Municipal Payments directly to the Town as otherwise provided in the Add-On RSF Collection Services Agreement and in accordance with the terms and conditions of Section 5.2(b). 5.3 Obligations of Master Developer. Without limiting or negating any Master Developer obligation set forth in another Article of this Development Agreement, Master Developer shall perform the following obligations: (a) Asphalt Overlay. Master Developer shall perform its obligations with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iv). (b) Conveyance of Park Site in Planning Areas I, J and/or K. Pursuant to Section 3.7(d), Master Developer shall cause the then-current Landowner to convey to the Town such sites within Planning Areas I, J and/or K as may be determined necessary or desirable in satisfying such obligation. (c) Add-On RSF. Master Developer shall cooperate with the PICs to the extent reasonably necessary and appropriate in the imposition and administration of the Add-On RSF. Master Developer will cooperate with the PICs to effect the implementation of the Add-On RSF with respect to existing retail businesses within the Project, including but not limited to assisting in the coordination and implementation of reporting forms, meetings with representatives of such retailers regarding the nature and purpose of the Add-On RSF and such other steps and actions as the PICs may request from time to time. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, Master Developer shall take all legally available action to cause the PICs to impose, collect and remit the Add-On RSF as required pursuant to this Development Agreement, and Master Developer shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. E-27 1001679.22 FINAL (d) Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will be included within one or more urban renewal areas, Master Developer shall take such steps, and cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s), subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be construed to constrain any Landowner from pursuing any property tax appeal proceeding or change in tax classification of any portion of the Property, nor shall it be construed to require any Landowner to cause or consent to a change in tax classification of any portion of the Property. (e) Property Interest. Concurrently with the Effective Date, Master Developer has caused the execution and delivery of an instrument conveying to BNP’s designee a property interest sufficient to qualify such BNP designee for election or appointment to hold the office of director of TCMD. Pursuant to this Section 5.3(e) and the terms and conditions of such instrument (and any replacement instrument executed to accommodate a BNP replacement designee or any replacement property interest), Master Developer shall have an ongoing obligation to cause such BNP designee (or any replacement designee) to hold a sufficient property interest until such time as there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds. (e) (f) Landscaping/Visual Mitigation. Master Developer shall perform its obligations with respect to landscaping and visual mitigation as set forth in Section 3.11. 5.4 Obligations of EMD. Without limiting or negating any EMD obligation set forth in another Article of this Development Agreement, EMD shall perform the following obligations: (a) Conveyance of School Site in Planning Area I. Pursuant to Section 3.7(a)(i)(B), EMD or the then-current Landowner shall convey to the Town an approximately 3.764 acre Site within Planning Area I for school purposes. (b) Potential Combination of Park and School Sites. EMD or the then-current Landowner shall undertake the efforts contemplated pursuant to Section 3.7(a)(iv)(B) regarding a potential consolidated school/park Site within Planning Area I. (c) Conveyance of OS Tracts. Pursuant to Section 3.7(c), EMD or the then-current Landowner shall convey to the Town the parcels designated in the PUD Master Plan as OS-5 and OS-6. (d) Conveyance of Park Site in Planning Area I. Pursuant to Section 3.7(d), EMD or the then-current Landowner shall convey to the Town such sites within Planning Area I as may be determined necessary or desirable in satisfying such obligation. 5.5 Obligation of TC-RP Regarding Add-On RSF. Without limiting or negating any TC-RP obligation set forth in another Article of this Development Agreement, TC-RP shall perform the following obligations: (a) Add-On RSF. Concurrently with the Effective Date, TC-RP, in its capacity as the “declarant” with respect to the PIF Covenants has caused to be recorded amendments to the PIF Covenants to implement the Add-On RSF. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP shall take all legally available action to cause the PICs to impose, collect and remit the Add-On PIF as required pursuant to this Development Agreement, and TC-RP shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. (b) Tank Project Financing. TC-RP agrees to provide Tank Project Financing for the construction and completion of the Tank Project according to the following terms: (i) TC-RP shall provide sufficient funds on a timely basis for the completion of the Tank Project in accordance with the terms of the Tank Agreement and subject to the terms in this Section 5.5(b) and E-28 1001679.22 FINAL elsewhere in the Development Agreement. (ii) TCMD and VMD shall reimburse TC-RP for the first $7,000,0000 (SEVEN MILLION) prinicipal amount of Tank Project Financing by payment of $500,000 per year for 30 years at a net effective simple interest rate of 5.933%, or whatever interest rate equals payments of $500,000 per year for 30 years, which pledge of payment by TCMD and VMD shall be set forth in the Pledge Agreement to the Tank Agreement. (iii) TCMD and VMD shall reimburse TC-RP for the entire amount of Tank Project Financing which exceeds $7,000,000 (SEVEN MILLION) principal amount (“TC-RP Additional Tank Project Financing Reimbursement”) by one of the following two options which option shall be determined and chosen by the Developer at the Developer’s sole discretion on or before the earliest date that payment could occur: (A) Repayment as an Additional Developer Advance provided that the total repayment cost of the TC-RP Additinoal Tank Project Financing Reimbursement shall count against the Credit PIF Cap (i.e. principal, interest and all other costs associated with repayment); or, (B) Repayment as a “TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement” according to the priority use of District Revenues set forth in Section 6.9(v)(B) and provided that the entire amount of the TC-RP Additional Tank Project Financing Reimbursement shall not count against the Credit PIF Cap. 5.5 ARTICLE 6 FINANCING PLAN 6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD and/or VMD to finance and construct Capital Projects, to repay the District Debts and to be utilized for other Permitted Uses. The Tax Credit is granted in consideration of the above-stated uses of the Credit PIF. (a) Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs have pledgedassigned the Credit PIF Revenues to TCMD and the Credit PIF Collection Agent collects the Credit PIF Revenues on TCMD’s behalf pursuant to the Credit PIF Collection Services Agreement. /or VMD, and will further assign and/or re-assign to the Districts portions of the Credit PIF Revenues, to enable each of the Districts to utilize their respective portions of the Credit PIF Revenues for the purpose of performing their respective obligations pursuant to the Financing Plan and this Development Agreement. (b) Expiration of Term; Termination of Town Tax Credit. Except as otherwise provided in Section 6.1(d), TCMD’sthe Districts’ right to receive Credit PIF Revenues, the Town’s right to receive Municipal Payments, and the Town’s obligation to maintain the Tax Credit in effect each shall terminate concurrently with expiration of the Term. Upon expiration of the Term and termination of the Town’s Tax Credit, the Town shall be entitled to impose, receive and retain all Town taxes applicable to Taxable Transactions. (c) Termination of Right to Municipal Payments. The Town’s right to receive the Municipal Payments shall terminate concurrently with expiration of the Term and the termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(b). If the Declarant (as defined in the PIF Covenants) elects to continue the imposition of the Add-On RSF, in whole or in part, after discontinuation of the PICs’ obligation to remit the Municipal Payments to the Town, then the Add-On RSF Revenues may be used for any purpose permitted under the E-29 1001679.22 FINAL PIF Covenants. Notwithstanding expiration of the Term, the Town shall be entitled to receive Municipal Payments amounts resulting from application of the Add-On RSF to Taxable Transactions that occurred prior to the date upon which expiration of the Term occurs, such amounts to be collected and remitted in accordance with the terms and conditions of the Add-On RSF Collection Services Agreement. Notwithstanding that the Term shall expire upon full payment of the District Debts, the terms and conditions of this Section 6.1(c) shall survive the expiration of the Term. (d) Continuation of Town Tax Credit. If, after the Town’s obligation to maintain the Tax Credit in effect has been satisfied the Town delivers written notice to the PICs that the Town is precluded from terminating the Tax Credit, and the Town has in good faith pursued and failed to accomplish legally available alternatives for terminating the Tax Credit, then for so long as the Tax Credit remains in effect the PICs shall continue to impose the Credit PIF and shall remit to the Town on a monthly basis all Credit PIF Revenues actually collected, less the costs and expenses incurred by the PICs in connection with collecting such Credit PIF Revenues. In such event, the Town shall have no right or interest in any Add-On RSF Revenues, and neither the PICs, TCMD, VMD nor Master Developer shall have any obligation to cause any Municipal Payments to be remitted to the Town. The terms of this Section 6.1(d), if applicable, shall survive termination of this Development Agreement until such time as the Town terminates the Tax Credit. 6.2 Tax Credit; Use of Credit PIF Revenues. As contemplated by the Original Agreement and to partially offset the impact of the Credit PIF, the Town has established the Tax Credit in an amount corresponding to the Credit PIF Revenues derived from imposition of the Credit PIF to each Taxable Transaction. During the Term, the Town shall maintain the Tax Credit in effect and the Credit PIF Revenues shall be utilized for the Permitted Uses. In implementation of the Settlement Term Sheet, the following terms specify uses of Credit PIF Revenues: (a) Permitted Uses. During the Term, TCMDthe Districts may utilize Credit PIF Revenues to pay the Cap Amounts and the Non-Cap Amounts (collectively, the “Permitted Uses”) and for no other purpose. (b) Credit PIF Cap; Cap Amounts. Subject to reduction by not more than $10,000,000 (Ten Million Dollars) in accordance with Section 6.7 and as otherwise set forth below with respect to unfunded Supplemental Bond capacity, the amount of the following obligations to which Credit PIF Revenues can be pledged is $96,000,000 (NINETY SIX MILLION DOLLARS) (the “Credit PIF Cap”). Only Net Proceeds shall be counted against the Credit PIF Cap (as qualified in clause (i) below). If, as of January 2, 2040, the Net Proceeds of all Supplemental Bonds issued on or before January 1, 2040, are less than the otherwise unused portion of the Credit PIF Cap, the Credit PIF Cap will be reduced in equal amount to the unused Credit PIF Cap. The following (collectively, the “Cap Amounts”) shall count against the Credit PIF Cap: (i) $52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS), which is the original amount of the TCMD bonds refunded pursuant to the TCMD2013 Bond Reissue. (ii) The Net Proceeds of the Tank Project Bonds Financing in the approximate amount of $98,000,000 (the precise amount to be established at the time the Water Tank Project is accepted by the Authority Bonds are issued)$7,000,000 (SEVEN MILLION) for the Tank Project plus the total repayment cost of the TC-RP Additional Tank Project Financing Reimbursement if the Developer elects to choose repayment of the TC-RP Additional Tank Project Financing as an Additional Developer Advance in accordance with Section 5.5(b)(iii)(A). (iii) The Net Proceeds of the Past Developer Advances in the amount stated in Exhibit E. (iv) To the extent issued on or before January 1, 2040, the Net Proceeds of Supplemental Bonds (including Master Developer contributions to the Asphalt Overlay Account only to the extent reimbursable from TCMD using Credit PIF Revenues). E-30 1001679.22 FINAL (v) Capital Project Costs that TCMD fundsthe Districts fund directly from Credit PIF Revenues budgeted and appropriated for such purpose. (c) Non-Cap Amounts. The following costs (collectively, the “Non-Cap Amounts”) are payable from Credit PIF Revenues but do not count against the Credit PIF Cap: (i) Payments of interest and other Bond Requirements incurred with respect to Cap Amounts and any principal of bond obligations included as District Debts which is in excess of the Cap Amounts. (ii) Except as otherwise provided in Section 6.12, the principal amount and Bond Requirements of any refunding bonds or other debt instruments issued to repay, refund and/or defease, in whole or in part, the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b). (iii) The Avon Receivable and any refunding thereof. (iv) The principal amount and interest of Town cure payments, if any, pursuant to Section 6.13, and any refunding thereof. (v) Deferred Amortization, and any refunding thereof. (vi) TCMD’s contributionsContributions by TCMD and/or VMD to the Asphalt Overlay Account. (vii) The Base O&M Costs (vii)(viii) TC-RP Additional Tank Project Non-Credit PIF Revenue Reimbursements if the Developer elects to choose repayment of the TC-RP Additional Tank Project Financing as a TC-RP Additional Tank Project Non-Credit PIF Revenue Reimbursement in accordance with Section 5.5(b)(iii)(B). 6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as contemplated in the Original Agreement, the PICs have imposed and shall continue for the duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. Pursuant to the PIF Covenants and in implementation of the Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms and conditions of the PIF Covenants and applicable provisions of this Development Agreement. (a) Town Real Estate Transfer Tax. In full settlement of any and all claims that could be raised or asserted regarding whether the Town’s real estate transfer tax and the PICs’ Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart occupy their present locations within the Project as of the Execution Date or to apply to any extension(s) of such leases: (i) Existing Wal-Mart and Home Depot Leases. The Town’s real estate transfer tax shall not be construed to apply to the leases pursuant to which Home Depot and Wal-Mart occupy their present locations within the Project as of the Execution Date or to apply to the election of lessee to exercise its rights to extend such leases in accordance with the terms of the respective original lease documents as in effect on the Execution Date. (ii) Waiver of Claims. Accordingly, the Town hereby fully and irrevocably waives any and all claim or right to impose its real estate transfer tax, and the Commercial PIC hereby fully and irrevocably E-31 1001679.22 FINAL waives any and all claim or right to impose the Real Estate Transfer Fee, upon the existing leases (together with extensions and options to extend thereunder) for Wal-Mart and Home Depot. (iii) Applicability of Municipal Code. Contemporaneously with the Execution Date, the Town has adopted Ordinance No. 12-11, pursuant to which it has, effective on the Effective Date, amended Chapter 3.12 of the Municipal Code to clarify various matters relating to the circumstances under which a long term lease constitutes a Taxable Transaction for purposes of triggering an obligation to pay the Town’s real estate transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee shall be administered based Chapter 3.12 of the Municipal Code as amended by Ordinance No. 12-11 (in the form and in substance as adopted contemporaneously with the Execution Date) and in effect on the Effective Date. Transactions subject to the Town’s real estate transfer tax shall be subject to the Real Estate Transfer Fee, and payment of the Real Estate Transfer Fee shall result in the automatic and simultaneous application of the Tax Credit. The Real Estate Transfer Fee shall not be construed to be part of the Taxable Transaction, and the Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If, notwithstanding the foregoing, the Town is legally required pursuant to state statute to impose and collect its Real Estate Transfer Tax on the Real Estate Transfer Fee during the Term, the Town shall remit to TCMD,100% of the Real Estate Transfer Tax revenues actually collected to: (A) VMD or to TCMD, as required by the 2013 Reissue Documents during the 2013 Bond Repayment Period [conform use of defined term]; or (B) TCMD after expiration of the 2013 Bond Repayment Period (unless such revenues are subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan, and in such case to VMD). The Town’s obligation to remit such revenues pursuant to the foregoing clauses (A) and (B) shall be subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, 100% of the Real Estate Transfer Tax revenues actually collected. During the Term, no amendment to Ordinance No. 12--11 or to Chapter 3.12 of the Municipal Code shall apply to real estate transactions occurring within the Property except with the prior written consent of Master Developer. (iv) Applicability to Lease Amendments. The exemption and waivers of applicability of the Town’s real estate transfer tax to long term leases executed prior to the Execution Date also shall apply to any amendment to a long term lease that is executed after the Execution Date that does not have the effect of extending the term of such lease. With respect only to amendments or modifications of such existing leases that have the effect of extending the term for a period in excess of 25 years or adding new options to extend the term for a period in excess of 25 years: (A) the Town’s real estate transfer tax shall apply to such 25 year or greater extension period to the extent required by application of Ordinance No. 12-11; (B) the consideration upon which the Town’s real estate transfer tax calculation is based shall be based only upon the lease payments (exclusive of common area maintenance, taxes, insurance and similar costs) for the period of the extension greater than 25 years (i.e., the original term of such lease, inclusive of all extension rights thereunder, shall be disregarded such that there is no “look back” beyond the date of the extension which triggers the real estate transfer tax obligation); (C) the Tax Credit shall apply to such lease extensions with respect to which the real estate transfer tax otherwise would apply such that the PICs shall impose and collect the Real Estate Transfer Fee and the Town shall collect no real estate transfer tax as otherwise provided in this Agreement, subject to Section 6.18; and (D) the Town and the PICs shall coordinate in advance to establish an agreed upon methodology for calculating the amount and timing of Real Estate Transfer Fee payments due with respect to lease term extensions with respect to which the Town’s real estate transfer tax otherwise would apply. (b) Internet, Mail Order and Similar Remote Taxable Transactions. The Parties intend that retail sales transactions effected remotely should be subject to the Credit PIF and the Tax Credit whether such remote transactions are effected via the internet, by mail order or otherwise delivered into the Project such that the transaction is a Taxable Transaction. However, due to logistical and practical impediments to causing the Credit PIF and the Tax Credit to attach to such transactions or otherwise tracking and allocating such revenues, it has not heretofore been possible to effect the Financing Plan with respect to such remote transactions. The Parties further recognize that national and state laws and business practices of retailers regarding imposition of state and local sales tax are evolving E-32 1001679.22 FINAL and soon may require retailers to identify and report the address of the point of purchase for internet based retail sales. The Town agrees that if and when address information of the point of sale for retailers is available to the Town such that the Town can determine the internet based retail sales specifically attributable to points of purchase within the Village (at Avon) for which sales taxes are imposed and collected (or another mechanism is identified), the Town shall use best efforts to cooperate with the PICs to impose the Retail Sales Fee and Add-On RSF if possible or, in the alternative if imposition of such fees is not possible, the Town shall cooperate with the PICs to impose, collect and remit the Town’s retail sales tax to the PICs in accordance with Section 6.18. If the Parties identify a method of implementing the intent of this Section 6.3(b), such method may be implemented without the requirement of an amendment to this Development Agreement. 6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF Covenants, which require such rates to be set from time to time during the Term at: (a) Credit PIF Rates: (i) Retail Sales Fee. Except to the extent of an increased sales tax rate approved by the Town for a specific project as set forth in Section 6.4(b)(ii), the same rate as the corresponding Town sales tax rate as in effect from time to time. As of the Execution Date, the Town sales tax and the Retail Sales Fee each are set at the rate of 4.0%. (ii) Real Estate Transfer Fee. The same rate as the corresponding Town real estate transfer tax rate as in effect from time to time. As of the Execution Date, the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the rate of 2.0%. (iii) Accommodations/Lodging Fee. Except to the extent of an increased accommodations/lodging tax rate approved by the Town for a specific project as set forth in Section 6.4(b)(ii), the same rate as the corresponding Town accommodations/lodging tax rate as in effect from time to time. As of the Execution Date, the Town accommodations/lodging tax and the Accommodations/Lodging Fee each are set at the rate of 4.0%. (iv) Use Tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Execution Date, such use tax shall be automatically incorporated into the definition of Taxable Transaction set forth in Exhibit F without the need of any formal action by the Town. The PICs may establish and impose a building materials use fee, which shall be included in the definition of Credit PIF, corresponding to such use tax and applying to the same transactions and at the same rate as such use tax. The Town may amend its Municipal Code to reflect the automatic Tax Credit for use tax as set forth in this sub-section, but such an amendment shall not be required to implement the automatic Tax Credit. The Parties and any party obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the Tax Credit being applied to such transactions in order to offset the effect of the Credit PIF in the same manner and to the same extent as the Tax Credit applies to retail sales transactions, real estate transfer transactions and accommodations/lodging transactions. Prior to adopting any such use tax, the Town shall coordinate with the PICs and other Parties regarding the implementation of any such use taxes and application of the Tax Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall not be deemed to be part of such Taxable Transaction and shall not be subject to application of the corresponding Town use tax. (b) Add-On RSF Rate. As of the Effective Date, the PICs have set the Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are Taxable Transactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of any other adjustments to such revenues as set forth in this Development Agreement and/or the E-33 1001679.22 FINAL Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions shall constitute the Municipal Payments. (i) Increase in Town Sales Tax Rate. If the Town increases the Town’s retail sales tax rate above 4.0 % during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add-On RSF Revenues which will be construed to be Municipal Payments shall be reduced in the same degree as any Town sales tax rate increase above 4.0%. For example, if the Town increases its retail sales tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSF Revenues construed to be Municipal Payments shall be that amount equivalent to a reduction of 0.25% in the Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75%). As of the Effective Date, the PICs have not imposed an Add-On PIF on transactions other than retail sales transactions that are Taxable Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF required pursuant to this Section 6.4(b). (ii) Exception for “Project-Specific” Town Tax Rate Increase. Notwithstanding anything set forth in Sections 6.4(a)(i), 6.4(a)(iii) and 6.4(b)(i) to the contrary and subject to the terms and conditions set forth in this Section 6.4(b)(ii), the Town shall be entitled to retain the revenues resulting from an increase in the Town’s 4.0% sales tax rate or 4.0% accommodations tax rate as in effect on the Execution Date to the extent: (A) such tax rate increase is duly adopted by the Town after the Effective Date and applies on a uniform basis throughout all areas of the Town; (B) the proceeds of such tax rate increase are specifically dedicated and pledged solely to a specific project identified in connection with such adoption; (C) the financing period for such specific project does not exceed 30 years; and (D) for the purposes of sales tax and not accommodations tax such increased tax rate does not exceed 0.75%. For purposes of the foregoing, a “specific project” shall mean only a specific municipal capital project (by way of example, construction of a municipal building; construction of a library; acquisition of specifically identified parcels of real property that are being acquired by the Town for open space, park or construction of a specific municipal capital project to be constructed on such property; or similar purposes), and expressly excludes tax rate increases for the purpose of providing ongoing municipal services (by way of example, to fund ongoing provision of transit services, trash services or similar open-ended municipal services funding obligations) or for general fund purposes. With respect to tax rate increases for a specific project as set forth above, the Tax Credit shall not apply to such increased rate and the corresponding Credit PIF rate shall not be raised to match the increased tax rate, but the Add-On RSF rate shall be reduced correspondingly to the increased tax rate as set forth in Section 6.4(b)(i) with respect to retail sales transactions. With respect to any Town sales tax rate increases that are not for a specific project, the terms and conditions of Section 6.4(b)(i) shall apply. (iii) Increased Add-On PIF Rate. To the extent the PICs at any time after the Effective Date impose an Add-On PIF on transactions other than retail sales transactions that are Taxable Transactions and/or at a rate higher than the Add-On RSF rate, the resulting Add-On PIF Revenues shall not be construed to constitute Add-On RSF Revenues or Municipal Payments. Any Add-On PIF Revenues that do not constitute Municipal Payments pursuant to this Section 6.4(b) may be utilized as set forth in Section 6.5(b)(ii). 6.5 Add-On PIF. In implementation of the Settlement Term Sheet, and in consideration of the Town’s performance of its obligation to provide Municipal Services in accordance with Section 4.1 and the Town’s performance of its obligations pursuant to Section 4.2 and this Article 6: (a) Collection and Remittance. During the Term, the PICs shall collect, or cause the Add-On RSF Collection Agent to collect, the Add-On RSF Revenues. In accordance with the terms and conditions of the Add-On RSF Collection Services Agreement, the Add-On RSF Collection Agent shall: (i) Separate Account. Maintain Add-On RSF Revenues in a separate account from Credit PIF Revenues. E-34 1001679.22 FINAL (ii) Remittance of Municipal Payments. Calculate that portion of Add--On RSF Revenues received during each calendar month which comprises Municipal Payments, and after calculating that portion of the Municipal Payments required to be deposited into the Asphalt Overlay Account: (A) Deposit the required amount of Municipal Payments into the Asphalt Overlay Account; and (B) Remit any remaining Municipal Payments to the Town. (b) Uses. (i) Municipal Payments. During the Term, the Municipal Payments shall be utilized first to satisfy the Town’s Asphalt Overlay Account funding obligations as set forth in Section 6.6 and thereafter may be utilized by the Town for any lawful purpose. (ii) Additional Add-On PIF Revenues. To the extent the PICs continue to impose and collect the Add-On RSF on retail sales transactions that are Taxable Transactions after expiration of the Term and/or there are from time to time during the Term Add-On PIF Revenues, including any Add-On RSF Revenues, in excess of the Municipal Payments (for example, due to a reduction in such Municipal Payments pursuant to Section 6.4(b) or due to imposition of an Add-On PIF on transactions other than retail sales that are Taxable Transactions), the PICs may retain and utilize such additional Add-On PIF Revenues for any lawful purpose permitted under the terms and conditions of the PIF Covenants. The Town shall have no right or claim to any such Add-On PIF Revenues, including any Add-On RSF Revenues, that do not constitute Municipal Payments. (c) Duration. The Town’s right to receive the Municipal Payments generated through the PICs’ imposition of the Add-On RSF shall terminate concurrently with the termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(c) of this Development Agreement. (d) Implementation Period. From and after the Execution Date, the Town will cooperate with the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as “declarant” under the PIF Covenants) in implementing the Add-On RSF with existing retailers within the Project, including but not limited to attending meetings with such retailers upon the request of the PICs and Master Developer (and not independently), coordinating with the PICs and the Add-On RSF Collection Agent with respect to preparation and dissemination of reporting forms and similar matters related to the collection and remittance of the Add-On RSF, and such other matters as the PICs, the Add-On RSF Collection Agent, Master Developer and TC-RP (as “declarant” under the PIF Covenants) reasonably request in connection with implementing and facilitating the collection of the Add-On RSF. (e) Effect of Expiration of Term. Except to the extent otherwise set forth in the applicable PIF Covenants, expiration of the Term shall not have the effect of terminating the Add-On RSF or the Add-On PIF and, to the extent the PICs continue to impose the Add-On RSF and/or the Add-On PIF and to collect the Add-On RSF Revenues or any other Add-On PIF Revenues after expiration of the Term, all such Add-On PIF Revenues may be utilized as set forth in Section 6.5(b)(ii). 6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD and First Bank, Avon Branch, have legally delivered and entered into the Asphalt Overlay Agreement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement, the Town has established with First Bank, Avon Branch, a restricted, segregated account (the “Asphalt Overlay Account”) into which the Master Developer, the Town and TCMD and/or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period [confirm defined term] and/or otherwise subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) shall deposit funds in the amounts and at the times set forth below. Such funds shall be used exclusively to finance asphalt E-35 1001679.22 FINAL overlays of public roads located in the Project Dedicated to the Town as described in Section 4.2(d). The Asphalt Overlay Account shall be subject to and administered in accordance with the terms and conditions of the Asphalt Overlay Agreement and the following terms and conditions: (a) Joint Funding Obligations. Commencing on the Effective Date and continuing until terminated pursuant to Section 6.6(b), Master Developer, the Town and TCMD (and/or VMD) each shall contribute funds to the Asphalt Overlay Account as follows: (i) Due Dates. All payments are due and payable on or before November 1 of each year commencing in 2013. (ii) Town Contribution. Utilizing Municipal Payments to be deposited into the Asphalt Overlay Account in accordance with Sections 5.2(c), 6.5(a)(ii)(A) and 6.5(b)(i): (A) For calendar years 2013 through 2017, the Town shall contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) per year. (B) For calendar years 2018 through and including the date on which termination occurs pursuant to Section 6.6(b), the Town shall contribute $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year. (iii) TCMD and/or VMD Contribution. Such contributions being Non-Cap Amounts and using available District Revenues, TCMD and/or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period [confirm defined term] and/or otherwise subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) shall contribute: (A) For calendar years 2013 through 2017, TCMD shall contribute $40,000.00 (FORTY THOUSAND DOLLARS) per year. (B) For calendar years 2018 through and including the date on which termination occurs pursuant to Section 6.6(b), TCMD shall contribute $75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year. (iv) Master Developer Contribution. Such contributions being Cap Amounts only to the extent reimbursable from TCMD and/or VMD using Credit PIF Revenues (and therefore qualifying as Additional Developer Advances): (A) For calendar years 2013 through 2017, Master Developer shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year. (B) Notwithstanding any continuing obligation of the Town and TCMD to contribute funds to the Asphalt Overlay Account after calendar year 2017, Master Developer shall not have any obligation to contribute funds to the Asphalt Overlay Account after satisfying the obligation set forth in the foregoing clause (A). (b) Termination of Joint Funding Obligations. The joint funding obligations of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the Town and TCMD and/or VMD with respect to the Asphalt Overlay Account shall terminate in the earliest calendar year in which one of the following occurs: (i) 80,000 square feet of additional commercial (as defined in the PUD Guide) development have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions have increased by at least $20,000,000 over the actual total annual Taxable Transactions in 2011. From and after the date that the joint funding obligations terminate as provided herein: (A) the Town shall be and remain solely responsible for performing and funding asphalt overlays for E-36 1001679.22 FINAL all public roads within the Project Dedicated to the Town; (B) Master Developer and TCMD and/or VMD shall have no further obligation with respect to funding of asphalt overlays within the Project; (C) the obligations of Master Developer and TCMD and/or VMD to provide such funding shall not be reinstated upon any subsequent reduction of commercial occupancy or reduction of total annual Taxable Transactions; and (D) the expenditures and appropriations by the Town for asphalt overlays in excess of the amounts deposited in the Asphalt Overlay Account shall not be counted against the Credit PIF Cap. 6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In implementation of the Settlement Term Sheet, the Master Developer and the Landowner(s) of the affected Sites within Lot 1 shall provide their timely, full and reasonable cooperation in assisting the Town and AURA in the creation of an urban renewal plan for Lot 1 in accordance with the terms and conditions of this Section 6.7; provided, however, that Master Developer and any other Landowner(s) shall not be required to cooperate in the creation or implementation of such urban renewal plan unless Master Developer has provided its written consent to all terms and conditions of the urban renewal plan prior to its adoption. Master Developer and any other Landowner(s) shall have the right to oppose any urban renewal plan for Lot 1 (or any other area of the Property) that does not include a provision that expressly prohibits the Town or AURA from exercising eminent domain powers or, unless Master Developer has provided its written consent to such urban renewal plan for Lot 1 as contemplated herein, for any other reason permitted under the laws of the State of Colorado. Master Developer or any Landowner(s) of a Site within Lot 1shall have no obligation to cooperate with the formation of an urban renewal plan area for Lot 1 if Master Developer has not provided prior written consent as required above or if the Town and/or AURA fails to adhere to the following terms and conditions. (a) Limited to Lot 1. The area included within the urban renewal plan is limited to Lot 1 or a portion thereof. (b) Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN MILLION DOLLARS) of proceeds available for the payment of Capital Project Costs from bonds or other financial obligations (whether in the form of bonds, direct payments, redevelopment agreement(s) and/or cooperation/funding agreement(s)) issued or incurred by AURA to pay Cap Amounts may be counted against and thereby reduce the remaining Credit PIF Cap; provided, however, that the cost of improvements to or servicing Town-owned properties (by way of example and not limitation, improvements located within, utilities extensions servicing and/or access to and from Planning Area B, Planning Area E, or park/open space areas Dedicated to the Town), whether financed utilizing TIF Revenues or other revenues of the Town or AURA, shall not result in a reduction of the Credit PIF Cap. Nothing in this Section 6.7(b) constitutes a limit on AURA’s ability to finance improvements it deems appropriate. The restriction in this Section 6.7(b) relates only to whether bonds issued by AURA to pay for the costs of such improvements count against the Credit PIF Cap. (c) AURA Board Positions. Prior to or concurrently with the effective date of any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an urban renewal plan therefore, the Town and AURA shall take action to appoint an individual designated by Master Developer and shall take action to appoint an individual designated by BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA board. The Master Developer and BNP board members shall be full members of the AURA board with equal rights, duties and responsibilities as other AURA board members with respect to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof) and all AURA activities of any nature that directly or indirectly involve the establishment, implementation and administration of any urban renewal area including or any urban renewal plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with statutory requirements regarding conflicts of interest. If the AURA board for activities affecting Lot 1 is constituted as a separate board from that which operates within other areas of the Town, such BNP and Master Developer board members shall be full members for all purposes having equal standing with other board members. If the AURA board is not constituted as a separate board from that with operates within other areas of the Town, the BNP and Master Developer board members shall have no authority or standing to participate in AURA board activities pertaining to areas of the Town other than Lot 1, and shall recuse E-37 1001679.22 FINAL themselves from all such proceedings. BNP’s right to have a member on the AURA board shall expire and terminate at such time as there are no outstanding obligations to BNP under the TCMD2013 Reissue Documents or any subsequent reissue or refunding of such bonds. (d) TCMD and VMD Taxes. The urban renewal plan for any urban renewal area that includes Lot 1 (or any portion thereof), and all related governing and implementing documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1 (or any portion thereof) within the urban renewal area. No portion of the property tax increment revenues resulting from the Districts’ mill levies shall be retained or utilized by AURA for any purpose, and shall specifically not be pledged or utilized by AURA for repayment of any bonds issued or other financial obligations entered into by AURA. (e) TIF Revenues; Uses. The urban renewal plan(s) shall not contain any provision for capturing the increment of municipal sales taxes, and shall be expressly limited to capturing the increment of property taxes within the urban renewal area (subject to Section 6.7(d)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s) containing all or any part of Lot 1 solely within the Project. Improvements undertaken or financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and approval of the Design Review Board where applicable. (f) Funding Agreement(s) with Districts. AURA may enter into enforceable multiple fiscal year cooperation/funding agreements with a District providing that the TIF Revenues will be assigned to the District for the purpose of financing, through the District’s issuance of bonds or otherwise, eligible Capital Projects. (g) Priority of Use of TIF Revenues. The priority of AURA’s use of TIF Revenues generated from within the urban renewal plan area(s) established within the Property pursuant to this Section 6.7 are: (i) First, until the Credit PIF Cap reduction contemplated by Section 6.7(b) has been accomplished or unless Master Developer and AURA otherwise agree in writing, to fund any then-uncompleted phases of East Beaver Creek Boulevard as a through road in accordance with Section 3.10(a). (ii) Second, to the extent the Credit PIF Cap reduction contemplated by Section 6.7(b) has not been accomplished by satisfaction of the foregoing clause (i), to fund from the remaining amount of Credit PIF Cap reduction contemplated by Section 6.7(b) the Capital Project Costs of any Prioritized Capital Projects within Lot 1 that have not previously been financed and completed. (iii) Third, in a priority to be determined by AURA: (A) improvements to or servicing Sites that the Town owns within Lot 1 (which may include structured parking within Lot 1 to provide shared public parking for private improvements and public improvements constructed within Planning Area B and other areas of Lot 1); and (B) any other Capital Projects that result in a reduction of the Credit PIF Cap pursuant to the terms and conditions of Section 6.7(b). 6.8 Tank Agreement. Prior to the Effective Date and in implementation of the Settlement Term Sheet, certain parties thereto legally delivered and entered into the Tank Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge Agreement has been executed and delivered. As more specifically set forth in the Tank Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i) TCMDVMD is obligated to remit the Annual Debt Service Obligation to the Authority; and (ii) the Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service Obligation revenues to pay debt service on the Tank Project E-38 1001679.22 FINAL FinancingBonds. As of the Effective Date, BNP has provided the original letters of credit securing payment of the TCMD2013 Bond Reissue, consented to this Development Agreement and consented to the Tank Agreement in reliance on the Town’s performance of its obligation to maintain the Tax Credit in effect as required pursuant to this Development Agreement, and on the remedies provided for herein for the Town’s breach of its obligation to maintain the Tax Credit. 6.9 TCMD2013 Bond Reissue; Priority Use of District Revenues. In implementation of the Settlement Term Sheet: (a) TCMD2013 Bond Reissue. Concurrently with the Effective Date and with the consent of BNP and Master Developer, TCMDVMD has caused the TCMD2013 Bond Reissue to be effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in reliance on the Town’s performance of its obligations pursuant to this Development Agreement (specifically including but not limited to the Town’s obligation to maintain the Tax Credit in effect during the Term), and on the remedies provided for herein for the Town’s breach of its obligations under this Development Agreement (including but not limited to the right to obtain an order requiring specific performance of the Town’s obligation to maintain the Tax Credit). The TCMD2013 Reissue Documents and the Pledge Agreement encumber and, consistent with the Settlement Term Sheet, establish the terms and conditions of TCMD’sgoverning utilization of District Revenues during the 2013 Bond Repayment Period [confirm defined term]. Prior to the Effective Date, the Town reviewed and approved the TCMD2013 Reissue Documents and the Pledge Agreement for consistency with this Development Agreement. (b) Priority of Use of District Revenues. District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forms of Supplemental Bonds) are to be utilized to meet TCMDthe following obligations in the following priority: (i) Annual Debt Service Obligation. To the Authority, for the Annual Debt Service Obligation, from such sources, in the amounts and at such times required by the Pledge Agreement. (ii) Other Allowed O&M Expenses. Provided there is no continuing default with respect to itsa District’s obligations pursuant to the TCMD Bond Documents, to TCMD2013 Reissue Documents, to TCMD and/or VMD (as determined by the 2013 Reissue Documents during the 2013 Bond Repayment Period and/or otherwise subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) in the amount of the Base O&M Amount and to TCMD and/or VMD in the amount of TCMD’s and/or VMD’s contributions to the Asphalt Overlay Account. (iii) TCMD2013 Bond Reissue. To TCMD (or the trustee or the custodian, as applicable, for the TCMD2013 Bond Reissue), to be used for principal repayment or reimbursement and Bond Requirements related to the TCMD2013 Bond Reissue as required by the TCMD2013 Reissue Documents, which includesmay include, without limitation, establishment and, as necessary, replenishment of thea required reserve of $3,000,000,(in an initial amount of $3,000,000) and any refunding bonds issued to repay or defease the TCMD2013 Bond Reissue. (iv) Deferred BNP Letter of Credit Fees and Deferred Amortization. To the trustee or the custodian, as applicable, for the 2013 Bond Reissue, to be used to pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization. The prepayment or refinancing of the TCMD2013 Bond Reissue shall require payment in full of, or other extinguishment in full of the payment obligation with respect to, any such Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be applied in inverse order of maturity. E-39 1001679.22 FINAL (v) Use of Excess Revenues. (A) Prepayment of TCMD2013 Bond Reissue. In any year in which any District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forms of Supplemental Bonds) remain after the payment of the items set forth in subsections (i)-(iv) above and the Debt Service Coverage Ratio is less than 150%the then-applicable percentage required by the 2013 Reissue Documents, such excess revenues shall be applied to early payment of principal of the TCMD Bond Reissue2013 Bond Reissue as and to the extent required pursuant to the 2013 Reissue Documents (such Debt Service Coverage Ratio being initially set at 150% and such early payments initially being applied in inverse order of maturity). (B) Other Obligations of TCMD. In any year in which any District Revenues (but excluding from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived from Additional Developer Advances or from other forms of Supplemental Bonds) remain after the payment of the items set forth in subsections (i)-(iv) above and the Debt Service Coverage Ratio is 150%equal to or greater than the then-applicable percentage required by the 2013 Reissue Documents: 1. Supplemental Bonds. To the extent Supplemental Bonds have been issued (whether in the form of Additional Developer Advances or municipal bonds), for principal repayment or reimbursement and payment of interest and other Bond Requirements related to such Supplemental Bonds in accordance with the terms and conditions thereof and any refunding bonds issued to repay or defease any such Supplemental Bonds. 2. Cure Payments. To the extent the Town has exercised any cure rights pursuant to Section 6.13 to cure a deficiency in payment of principal or the Bond Requirements of the Tank Project FinacingBonds or the TCMD2013 Bond Reissue, to reimburse the Town for the amount of such payments and interest thereon at the non-default interest rate commensurate with the interest paid to bondholders at the time of the cure payment. 3. Past Developer Advances and Avon Receivable. To satisfy TCMD’s payment obligations with respect to the Past Developer Advances (including amounts payable to Buffalo Ridge Affordable Housing Corporation) and the Avon Receivable, subject to the following: I. The Past Developer Advances (including any Replacement Bonds issued to repay or defease all or a portion of the Past Developer Advances) and the Avon Receivable shall be paid in the order in which TCMD incurred thesuch obligations were incurred, with the oldest obligation to be paid first, except to the extent such priority of payment conflicts with the priority and terms of the instrument creating the obligation in which case such priority and terms shall control. With respect to the Past Developer Advances, the obligations shall be deemed to have been incurred as of the dates set forth in the instruments creating the obligations. With respect to the Avon Receivable, the obligation shall be deemed to have been incurred as of the dates on which payments were due under the terms of the Original Agreement and/or any Municipal Service Invoice (as the Original Agreement defined such term). The Past Developer Advances, the Avon Receivable, and the dates on which such obligations were incurred are more particularly described in Exhibit E. E-40 1001679.22 FINAL II. Simple interest at the rate of 1.5% shall accrue on the principal amount of the Avon Receivable commencing on the Effective Date and continuing until the expiration of the Term or payment in full, whichever first occurs. III. Except to the extent stated in this Section 6.9(b)(v)(B)3.III, the interest rate applicable to the Past Developer Advances shall be as stated in the instruments creating such obligations (as identified in Exhibit E). Notwithstanding the foregoing or any contrary provision of the instruments creating such obligations, the interest rate on certain Past Developer Advances payable to Master Developer or any Developer Affiliate shall: (A) with respect to a principal amount equal to the principal amount of the Avon Receivable be limited to 1.5% simple interest per annum, commencing on the Effective Date; and (B) such reduced interest rate shall be applied first to the principal balance of the latest (i.e., most recently executed) such instrument and then to each subsequent (i.e., next most recently executed) instrument until a principal amount equal to the principal amount of the Avon Receivable is obtained. IV. The rate of interest and priority of payment with respect to that portion of the Past Developer Advances payable to Buffalo Ridge Affordable Housing Corporation shall be as set forth in the document creating such obligation, shall not be modified in any manner by the terms and conditions of this Development Agreement, and shall remain in full force and effect in accordance with the existing terms except to the extent as may be modified by mutual agreement of TCMD, Master Developer and Buffalo Ridge Affordable Housing Corporationthe parties thereto. Such agreement to modify the interest rate, priority of payment or other terms is expressly not a condition of this Development Agreement. 4. TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement. After the obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A), (v)(B)(1), (v)(B)(2) and (v)(B)(3) are fully satisfied and to the extent not expressly precluded by any provision of this Development Agreement, to satisfy payment obligations with respect to TC-RP Additional Tank Project Financing Reimbursement provided that the District Revenues utilized for this purpose shall not include Credit PIF Revenues. (C) Direct Payment of Capital Project Costs. After the obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A) and (v)(B) are fully satisfied and to the extent not expressly precluded by any provision of this Development Agreement, that portion of available Credit PIF Revenues shall be deposited to an escrow account to be used exclusively for direct payment of Capital Project Costs. (c) Other Legally Permissible Uses of District Revenues. Subject to the limitations in the Service Plans, the Tank Project Bonds documentsPledge Agreement and the TCMD2013 Reissue Documents, nothing herein shall be construed as prohibiting the Districts from utilizing District Revenues for any other uses not enumerated above or from imposing a mill levy and retaining the revenues derived therefrom for the purpose of paying for Capital Project Costs and/or of paying the Districts’ operation, maintenance and administrative expenses to the extent that such costs exceed the Allowed O&M Expenses; provided, however, that the portion of District Revenues comprising Credit PIF Revenues shall be limited solely to the Permitted Uses as set forth in Section 6.2(a). (d) Continuation of Priority of Use. If VMD and/or TCMD issuesissue any form of replacement or refunding bonds for the TCMD2013 Bond Reissue and/or issues Supplemental Bonds, VMD and/or TCMD, as applicable, shall cause the pertinent documentation executed in connection therewith to incorporate the general prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve such documentation at E-41 1001679.22 FINAL least forty-five (45) days prior to issuance of such replacement or refunding bonds for the limited purpose of confirming conformance with the general prioritization set forth in Section 6.9(b). 6.10 Supplemental Bonds. If TCMD issuesone of more of the Districts issue Supplemental Bonds on or before January 2, 2040, TCMDsuch District(s) shall continue to receive Credit PIF Revenues until expiration of the Term. If TCMD hasthe Districts have not issued Supplemental Bonds prior to January 2, 2040: (i) the Town shall have no further obligation with respect to any unissued Supplemental Bonds capacity; (ii) the Tax Credit shall be maintained in effect until all District Debts payable from Credit PIF Revenues and outstanding as of January 2, 2040, are fully paid and the Term expires as provide in Section 6.1(b); and (iii) TCMDthe District(s), as applicable, shall be entitled to retain and utilize all Credit PIF Revenues it hasthey have received prior or subsequent to January 2, 2040, for servicing District Debts or direct payment of Capital Project Costs. The applicable District shall make commercially reasonable efforts to obtain the lowest cost of borrowing when issuing Supplemental Bonds. The applicable District may issue Supplemental Bonds (other than Additional Developer Advances) at fixed interest rates without the Town’s consent so long as the interest rate for such bonds does not exceed the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds being issued, for Baa investment grade fixed interest rate bonds plus 150 basis points. The issuance of Supplemental Bonds (other than Additional Developer Advances) which bear interest at a fixed rate higher than that set forth in the preceding sentence, or which are variable rate bonds, shall require the prior written consent of the Parties. [Here, Definitions 6 and 121 – bond underwriter will be providing a taxable bond reference rate to supplement the tax exempt reference rate – Town has reserved its position on this addition.] 6.11 Replacement Bonds. Subject to any applicable terms and conditions of the TCMD2013 Reissue Documents, on or after the Effective Date TCMDthe Districts shall have the ongoing right to issue Replacement Bonds to extinguish, replace, refund or defease Past Developer Advances. The principal amount of the Past Developer Advances being extinguished, replaced, refunded or defeased by such Replacement Bonds shall be deducted from and reduce the amount counted against the Credit PIF Cap. The principal amount of the Replacement Bonds shall not exceed $12.4 million without the Town’s prior written approval, and the interest rate of such Replacement Bonds shall bear a lower interest rate than such Past Developer Advances. For the purposes of determining the maximum allowable interest rate of Replacement Bonds, the interest rate of Past Developer Advances which are extinguished, replaced, refunded or defeased with Replacement Bonds (but excluding from such calculation those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II) shall be averaged with regard to the respective interest rate and amount of principal. The interest rate of Past Developer Advances (excluding those Past Developer Advances with respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II) shall be as determined by this Development Agreement on the Effective Date. To the extent the accrued and unpaid interest payable under the terms of the Past Developer Advance documents is not capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be carried forward as an accrued and unpaid interest obligation under the terms of the Past Developer Advance documents, the unpaid interest obligation shall not bear any interest, and the unpaid interest obligation shall not be discharged until paid in full. 6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the limitations set forth in this Section 6.12, TCMDthe Districts shall have the ongoing right to issue refunding bonds or other debt instruments to repay, refund and/or defease, in whole or in part, the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b). The principal and Bond Requirements of such refunding bonds or other debt instruments shall not count against the Credit PIF Cap. Notwithstanding the foregoing, if the principal amount of any bonds or other debt instruments issued to repay, refund and/or defease or otherwise refinance the TCMD2013 Bond Reissue exceeds the then outstanding principal amount of the TCMD2013 Bond Reissue, only that portion of the increased principal which is in excess of $52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS) shall be included in the Cap Amounts and count against the Credit PIF Cap. The interest rates on refunding bonds are subject to the requirements governing interest rates for Supplemental Bonds set forth in Section 6.10 except that the interest rate for refinancing the outstanding principal balance of the $7 million of Tank Project Financing set forth in Section 5.5(b)(ii) shall not exceed 5.933%. Without the Town’s prior written consent, the E-42 1001679.22 FINAL aggregate principal and interest due on fixed rate refunding bonds or other debt instruments with fixed interest rates, from their date of issuance to final maturity (disregarding any option to redeem prior to maturity), shall be less than or equal to the aggregate principal and interest due on the debt to be repaid, refunded, defeased or otherwise refinanced, from the date of the refunding to final maturity (disregarding any option to redeem prior to maturity). 6.13 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the Town shall have the right, but not the obligation, to cure any TCMDDistrict’s payment default under the Tank Project FinancingBonds, the TCMD2013 Bond Reissue Bonds or any Supplemental Bonds and to receive reimbursement of any such cure payments in accordance with the terms and conditions of Section 6.9(b)(v)(B)2. 6.14 Town Funding of Credit PIF Cap. At any time after the TCMD2013 Bond Reissue obligations have been fully satisfied (including through payment by the Town pursuant to this Section 6.14), the Town shall have the right, but not the obligation, to pay off all or a portion of the then-outstanding District Debts and/or satisfy the Town’s obligation with respect to funding the full Credit PIF Cap as follows: (a) Full Funding of Credit PIF Cap. The Town shall have the right to fully fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debts; and (ii) remitting to TCMD the TCMD (or, if so directed in writing by Master Developer with TCMD’s written consent, to the Commercial PIC (for subsequent assignment to a District for use in accordance with the Financing Plan)) the amount, if any, of available but unutilized Credit PIF Cap capacity as of the date of payoff. The total obligation to TCMDthe Districts and/or the Commercial PIC shall not exceed the Credit PIF Cap. For example, if the sum of the Net Proceeds of previously retired TCMD2013 Bond Reissue obligations and other District Debts retired by the Town totals $80 million, the amount of unutilized Credit PIF Cap capacity to be paid by the Town to TCMD (or to such other party as may be designated as provided herein) would be $16 million [$96 million - $80 million = $16 million]. Upon remitting the funds to fully fund the payoff amounts pursuant to the foregoing terms and conditions, the Town shall be entitled to terminate the Tax Credit. Simultaneously with Town’s exercise of its right to terminate the Tax Credit, the PICs’ obligation to cause the Municipal Payments to be remitted to the Town pursuant to the terms and conditions of this Development Agreement, and all right or claim of the Town to receive any portion of the Add--On RSF Revenues imposed after the date which Town exercises its right to terminate the Tax Credit, shall automatically and without the requirement of further action terminate, be of no further force or effect, and be forever extinguished. (b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to pay off the then-outstanding District Debts but not to advance the funds required to fund the unutilized Credit PIF Cap capacity remaining available to TCMDfor utilization as provided in this Financing Plan. In such event and as otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for the duration of the Term, the PICs shall continue to impose the Credit PIF and cause the collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal Payments to be remitted to the Town. All Credit PIF Revenues available to TCMD (for example, Credit PIF Revenues not otherwise encumbered by and required to service debt on Supplemental Bonds issued after the date of the Town’s payoff) to TCMD, or to such other party as may be designated in the manner described in clause (ii) of Section 6.14(a), shall be placed in escrow by TCMD or such designated party and applied from time to time toward Supplemental Bonds and/or direct payment of Capital Project Costs. The Credit PIF Revenues placed into escrow shall be subject to an agreement which grants the Town the right to enforce, restrict and limit the use of such escrow funds for payment of Capital Project Costs. 6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose, collect, receive, retain, expend or utilize Town taxes imposed upon the Public Improvement Fees as described hereinin subsections 6.15(a) and 6.15(b). In the event that the Town is legally required by municipal, state or federal law to impose the Town’s tax on a PICPublic Improvement fee as described hereinin subsections 6.15(a) and/or 6.15(b), the Town shall, subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, remit the full amount of the Town tax imposed upon the PIC fee to TCMDsuch Public Improvement Fee to TCMD or VMD (to VMD or to TCMD, as required by the 2013 Reissue Documents during the 2013 Bond Repayment Period, and to TCMD after expiration of E-43 1001679.22 FINAL the 2013 Bond Repayment Period [confirm defined term] unless such revenues are subject to a pledge by VMD in connection with District Debts issued or incurred by VMD pursuant to the Financing Plan) and such revenues shall be included with and be subject to the same terms, conditions and restrictions as Credit PIF Revenues. (a) Use Tax. If the Town enacts and imposes a use tax on building materials, the PICs shall, pursuant to the PIF Covenants and the Financing Plan, impose and apply the Retail Sales Fee to the use of such building materials and the Town shall not impose such Town use tax on any Usethe corresponding Retail Sales Fee. (b) Real Estate Transfer Tax. The Town’s real estate transfer tax shall not apply to the Real Estate Transfer Fee. 6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain, expend and utilize for any lawful Town purpose in the Town’s discretion the following tax revenues: (a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF added to each retail sales transaction shall be included in the Taxable Transaction. The Retail Sales Fee and Add-On RSF shall be subject to the Town’s municipal sales tax and the Town is entitled to collect, receive, retain, expend and utilize such sales tax revenues. (b) Accommodations Tax Applied to PIF. The Accommodations/Lodging Fee shall be included in the Taxable Transaction. The Accommodations/Lodging Fee shall be subject to the Town’s accommodations tax and the Town is entitled to collect, receive, retain, expend and utilize such sales tax revenues. (c) Town Ad Valorem Taxes. The Town is entitled to collect, receive, retain, expend and utilize all ad valorem property tax revenues resulting from imposition of the Town’s property tax mill levy within the Project. (d) Town Share of Eagle County Sales Taxes. The Town is entitled to collect, receive, retain, expend and utilize any portion of Eagle County’s sales tax revenues generated by transactions occurring within the Project that the Town is entitled to receive pursuant to any agreements with Eagle County in effect from time to time. (e) Future Taxes, Assessments and Fees. The Town is entitled to collect, receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees imposed by the Town and not addressed in this Development Agreement which are imposed uniformly and non-discriminately throughout the Town. 6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall maintain adequate books and records to accurately perform and account for their respective obligations under this Development Agreement. Each such Party or Limited Party shall, upon request of any other such Party or Limited Party, permit representatives of such requesting entity reasonable access during normal business hours to review and, at the requesting entity’s expense, audit such books and records in order to permit such requesting entity to determine compliance with the terms of this Development Agreement or the accuracy of any information contained in any statement, notice, invoice or report required to be provided under this Development Agreement. All such Parties and Limited Parties shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any such statement, notice, invoice or report or in such requesting entity’s review or audit of the applicable books and records. For so long as BNP is providing a Letter of Credit to secure the TCMD2013 Bond Reissue or any amounts are due and owing to BNP in connection with the TCMD2013 Bond Reissue, BNP shall have the same right to reasonable access to review and audit books and records to determine compliance with the terms of this Development Agreement or the accuracy of any information as set forth above with respect to the Town, AURA, the PICS and the Districts. 6.18 Cooperation Regarding Delinquent Public Improvement Fees. If the PICs are unable to collect any portion of the Public Improvement Fees due to delinquency, deficiency, or failure to file, the PICs may promptly notify the Town in writing, and the Town shall institute the procedures authorized under the Municipal Code to enforce and E-44 1001679.22 FINAL collect the corresponding Town tax, interest, penalties and costs. The Town shall then remit, subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado Constitution, such tax revenues to the PICs or to the District, subject to the following conditions: (a) the Town shall retain an amount equal to its costs incurred in enforcing its collection of taxes under the Municipal Code, as well as an administrative fee equal to 20% of any tax and/or penalty actually collected; (b) the obligation is subject to any prior lien on such Town taxes securing the Town’s sales tax revenue bonds outstanding as of the date of the Original Agreement; (c) the Town will have no responsibility to collect Public Improvement Fees which are in excess of the corresponding Town tax or which are assessed against any transaction that is exempt from the corresponding Town tax under the Municipal Code as then in effect; and (d) the Town does not guarantee or insure that it will be able to collect any delinquent or deficient Public Improvement Fees. Under no circumstances shall the Town be subject to any legal liability to the PICs or to the Districts on account of the Town’s failure to collect some or all of the delinquent or deficient Public Improvement Fees on behalf of such entities. The Town acknowledges that if the person or entity which failed to timely remit such Public Improvement Fees subsequently remits such Public Improvement Fees to the applicable PIC, such payment shall result in the application of the Tax Credit (if applicable) against such person or entity’s corresponding tax obligation (if any), which Tax Credit shall fully satisfy any corresponding tax liability to the Town. The Town shall nevertheless be entitled to recover from the PICs the administrative fee and any costs incurred in the enforcement and recovery of such Public Improvement Fees. 6.19 Creation of Additional PICs and/or Districts. Master Developer reserves the right to create such additional PICs as may be necessary or desirable from time to time. With the prior written consent of BNP (for so long as there are outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds2013 Reissue Documents [Note: here and elsewhere that the foregoing language is used, it seemed appropriate to leave it rather than replace with “during the 2013 Bond Repayment Period,” although depending on how that’s defined, it may be appropriate to use the defined term) and Master Developer, the applicable Landowner(s) may petition for the creation of additional Districts to provide services and/or Public Improvements and/or other forms of improvements benefiting all or any portion of the Property. The Town shall reasonably cooperate with Master Developer and such Landowners, as applicable, with respect to the creation of such additional PICs and/or Districts. 6.20 Operation of PICs and Districts. The formation documents of the PICs and the Districts, together with contracts entered into by and between the PICs and the Districts, require the PICs and the Districts to honor their obligations under this Development Agreement, including the obligation of the PICs to cause the Credit PIF Revenues and the Add-On RSF Revenues to be imposed, collected, remitted and utilized as required by the terms of this Development Agreement. The Town shall cooperate with the operation of the Districts, and with implementation of the Financing Plan. 6.21 Dissolution of Districts. Unless Master Developer requests the Town to do so earlier, the Town shall not initiate or pursue any proceeding to dissolve any District until after the earlier to occur of either: (a) the twenty-fifth (25th) anniversary of the first issuance of bonds by either District; or (b) such time as all infrastructure improvements and public amenities contemplated in the service plans for the Districts have been constructed and no issued general obligations or revenue obligations of the Districts remain outstanding with respect thereto. Any dissolution of any District shall be conducted in accordance with the provisions and procedures set forth in Colorado Revised Statutes §§ 32-1-701, et seq., as in effect as of the Original Effective Date. ARTICLE 7 Default; Remedies 7.1 Default by Town. A “breach” or “default” by the Town shall be defined as: (i) any zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure, taken without Master Developer’s and the affected Landowner’s or Landowners’ consent, that alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise adversely affects any development, use or other rights of the Landowners under this E-45 1001679.22 FINAL Development Agreement or the Development Plan; or (ii) the Town’s failure to fulfill or perform any obligation of the Town that is expressly set forth in this Development Agreement. 7.2 Default by TCMD or VMD. A “breach” or “default” by TCMD or VMD shall be defined as TCMD’s or VMD’s respective failure to fulfill or perform any obligation of TCMDsuch Party that is expressly set forth in this Development Agreement. 7.3 Default by Master Developer. A “breach” or “default” by Master Developer shall be defined as Master Developer’s failure to fulfill or perform any obligation of Master Developer that is expressly set forth in this Development Agreement. 7.4 Default by Limited Party. A “breach” or “default” by a Limited Party shall be defined as such Limited Party’s failure to fulfill or perform any obligation of such Limited Party that is expressly set forth in this Development Agreement. 7.5 No Cross-Defaults. No default by a Party or a Limited Party that is asserted or judicially determined to exist under this Development Agreement shall be construed to constitute a default of any other Party or Limited Party under this Development Agreement. No default of a Party or a Limited Party that is asserted or judicially determined to exist under this Development Agreement shall be construed to constitute a default of such Party or Limited Party under any other agreement to which such Party or Limited Party is a party. No default of a Party or a Limited Party that is asserted or judicially determined to exist under another agreement to which such Party or Limited Party is a party shall be construed to constitute a default by such Party or Limited Party under this Development Agreement. 7.6 Notices of Default. In the event of a default by a Party or by a Limited Party under this Development Agreement, a non-defaulting Party, non-defaulting Limited Party and/or Intended Beneficiary may deliver written notice to the defaulting Party or defaulting Limited Party (with a copy to each other Party, Limited Party and Intended Beneficiary) of such default, at the address specified in Section 8.12, and the defaulting Party or defaulting Limited Party shall have 30 days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such 30-day period and the defaulting Party or defaulting Limited Party gives written notice to each non-defaulting Party, non-defaulting Limited Party and Intended Beneficiary within such 30-day period that it is actively and diligently pursuing such cure, the defaulting Party or defaulting Limited Party shall have a reasonable period of time given the nature of the default following the end of such 30-day period to cure such default, provided that such defaulting Party or defaulting Limited Party is at all times within such additional time period actively and diligently pursuing such cure. Failure or delay in the delivery of a notice of default pursuant to this Section 7.6 shall not be construed to constitute a waiver of any such default, and such notice of default may be delivered at any time during which a default has occurred and not been cured. The defaulting Party’s or defaulting Limited Party’s obligation to cure shall not arise until such notice of default has been delivered as provided herein, and no claim shall be filed with respect to a default prior to delivery of a default notice and expiration of the cure period as set forth above. 7.7 Remedies. (a) General. If any default under this Development Agreement is not cured as described in Section 7.6, any non-defaulting Party, any non-defaulting Limited Party and/or Intended Beneficiary shall, except to the extent otherwise limited by an express provision of this Development Agreement, be entitled to enforce the provisions and any remedy provided in this Development Agreement at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance or damages or a combination may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance of the defaulting Party’s or defaulting Limited Party’s obligations and/or damages. All of the remedies permitted or available under this Development Agreement, at law, by statute or in equity shall be cumulative and not in the alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. For the avoidance of E-46 1001679.22 FINAL doubt and in order to clarify the effect of the foregoing as it relates to the Financing Plan: (i) the Town hereby forever waives and relinquishes any claim or right to terminate the Tax Credit for so long as any District Debts remain outstanding; and (ii) in consideration of this Development Agreement constituting an intergovernmental agreement by and among the Town, AURA, TCMD and VMD pursuant to C.R.S. §§ 29-1-203 and 29-20-105, each such governmental or quasi governmental entity expressly acknowledges that the Town, AURA, TCMD and VMD each shall have standing to enforce this Development Agreement, including specific performance, and affirms its intent that the obligations of each such governmental or quasi-governmental entity are to be enforced in accordance with their terms and each such entity expressly waives any right to object to or assert any defense against the entry of an order requiring specific performance (or other mandatory or prohibitory injunctive relief) of such obligations. (b) Impairment of Vested Property Rights. The Town acknowledges that this Development Agreement and the Development Plan constitute a development agreement which confers rights beyond those provided by the three (3) year statutory vesting approach described in the Vested Property Rights Statute. In the event of an uncured breach or default by the Town, in addition to any other remedies, Master Developer and any affected Landowner shall be entitled to: (i) recover from the Town the Past Developer Advances and any other damages that would have been specifically available pursuant to C.R.S. § 24-68-105(1)(c) as in effect on the Effective Date, plus any other and additional damages provable at law. (ii) cause the Property, or any portion thereof designated by Master Developer and the pertinent Landowner, to be disconnected from the Town. (c) Limited Parties. The Limited Parties’ remedies shall be as follows: (i) AURA. AURA shall have no rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party. (ii) EMD. EMD shall have all rights and remedies available to Master Developer. (iii) The Commercial PIC. The Commercial PIC’s rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: (A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the Town’s obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town’s cooperation in implementing the Add-On RSF. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town’s obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.5(b), the right to enforce the Town’s obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. (iv) The Mixed Use PIC. The Mixed-Use PIC’s rights arising under this Development Agreement to enforce any obligation of any other Party or to obtain any remedy against any Party shall be limited to the following rights and remedies: E-47 1001679.22 FINAL (A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the Town’s obligations to maintain the Tax Credit in effect. (B) Pursuant to Section 4.2(b), the right to require the Town’s cooperation in implementing the Add-On RSF. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town’s obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.5(b), the right to enforce the Town’s obligations with respect to use of the Municipal Payments and the Credit PIF Revenues that do not constitute Municipal Payments. (d) Intended Beneficiaries. Each of the following Intended Beneficiaries shall have the right to enforce specified provisions of this Development Agreement, as described below. (i) BNP. For so long as there are outstanding obligations to BNP under the TCMD2013 Reissue Documents (or any subsequent reissue or refunding of such bonds), BNP shall have all rights and remedies available to a Party with respect to enforcement of the following Town and/or AURA and/or other expressly identified obligations: (A) Generally, the obligations set forth in Article 4 and Article 6. (B) Pursuant to Sections 4.2(a) and 6.2, the Town’s obligation to maintain the Tax Credit in effect. (C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce the Town’s obligations with respect to application of the real estate transfer tax and Real Estate Transfer Fee, and with respect to retail sales transactions that are effected remotely. (D) Pursuant to Section 6.7(c), BNP’s right to participate on the AURA board of directors with respect to any urban renewal plans for any portion of the Property. (E) Pursuant to Sections 5.1(e) and 5.3(e), BNP’s right to participate on the TCMD board of directors and right for its designee to hold a property interest sufficient to qualify for appointment or election to be a TCMD director. (ii) VMD. (A) Pursuant to Section 6.7(d), VMD’s right with respect to any urban renewal plans for any portion of the Property located within VMD’s service area to enforce the obligations of AURA and the Town with respect to VMD’s ad valorem property taxes and the uses of all tax increment revenues collected by AURA. (B) Pursuant to Section 4.2(f), VMD’s right to enforce the Town’s obligation regarding waiver of Chapter 18.01 of the Municipal Code (as in effect from time to time). (ii) (iii) Developer Affiliates and Landowners. Each Developer Affiliate and each Landowner shall have all rights and remedies available to Master Developer. E-48 1001679.22 FINAL ARTICLE 8 Miscellaneous 8.1 Applicable Law. This Development Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. 8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town, Master Developer, AURA, the PICs, the Districts and/or BNP, and nothing contained in this Development Agreement shall be construed as making any of the Parties, Limited Parties and/or Intended Beneficiaries joint venturers or partners. 8.3 Expenses. Except as otherwise provided in this Development Agreement, Master Developer, EMD, TCMD, VMD, each Developer Affiliate, each Limited Party, each Intended Beneficiary and the Town shall each bear their respective costs and expenses associated with entering into, implementing and enforcing the terms of this Development Agreement. 8.4 Waiver. No waiver of one or more of the terms of this Development Agreement shall constitute a waiver of other terms. No waiver of any provision of this Development Agreement in any instance shall constitute a waiver of such provision in other instances. 8.5 Town Findings. Town Council hereby finds and determines that execution of this Development Agreement provides a public benefit to the Town and its citizens, is in the best interests of the public health, safety, and general welfare, and the provisions of this Development Agreement are consistent with all applicable development laws, regulations and policies of the Town. Town Council further specifically finds: (i) the Town’s approval of this Development Agreement and the Development Plan generally is pursuant to the authority of the Vested Property Rights Statute and the Municipal Annexation Act of 1965 set forth at CRS § 31-12-101, et seq., and, to the extent permitted by law, the Town is acting in a proprietary capacity in approving the Financing Plan and therefore shall bind the Town with regard to the Town’s rights and obligations during the Term, particularly with regard to the Town’s obligation to maintain the Tax Credit in effect, in accordance with the terms and remedies set forth in this Development Agreement; (ii) the Financing Plan and the Town’s agreement to forego the collection of sales tax revenues, real estate transfer tax revenues and accommodations/lodging tax revenues by maintaining the Tax Credit in effect during the Term does not constitute the creation of a multiple-fiscal year direct or indirect debt or other financial obligation of the Town, and does not constitute a new tax, tax rate increase or tax policy change directly causing a net tax revenue gain to the Town; and (iii) nothing in this Development Agreement constitutes (A) a pledge of the Town’s credit, (B) special legislation under Article V, section 25 of the Colorado Constitution, or (C) a grant in aid under Article XI, sections 1 and 2 of the Colorado Constitution. 8.6 Severability. If a final order issued by a court of competent jurisdiction holds any term, provision, covenant or condition of this Development Agreement to be invalid, void or unenforceable, the remaining provisions of this Development Agreement shall, unless amended or modified as provided in Section 1.5, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom they are being enforced of a material benefit of the bargain under this Development Agreement or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a determination that the Town’s right to receive the Municipal Payments, is invalid, void, unenforceable or that the remedy of specific performance is not available with respect to the Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited Parties; and (ii) this Development Agreement shall be deemed void and of no further effect unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner that the Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s right to receive Municipal Payments, as E-49 1001679.22 FINAL applicable, can be materially performed and complied with by alternative means. Unless amended or reformed as provided herein, entry of a final order holding the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable shall entitle Master Developer and affected Landowners to entry of an order enforcing the remedy set forth in Section 7.7(b)(ii) and, correspondingly, entry of a final order holding the Town’s right to receive Municipal Payments invalid or unenforceable shall entitle the Town to disconnect the Property. 8.7 Further Assurances. Each Party shall undertake such actions and shall execute and deliver to the other all such other further instruments and documents as may be reasonably necessary to carry out this Development Agreement in order to provide and secure to the other Party the full and complete enjoyment of its rights and privileges under this Development Agreement. 8.8 TCMD and VMD Obligations. Except with respect to funding of the Asphalt Overlay Account in accordance with the terms and conditions of Section 6.6(a)(iii) and funding of the Annual Debt Service Obligation, all obligations of TCMD and VMD under this Development Agreement to pay money are subject to annual budget and appropriation, and are subordinate to any bonds issued by TCMD and/or VMD. 8.9 Complete Agreement. This Development Agreement constitutes the final, complete and exclusive statement of the terms of the agreement among the Parties pertaining to the subject matter of this Development Agreement and supersedes all prior and contemporaneous understanding or agreements of the Parties. This Development Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements, including but not limited to the Settlement Term Sheet, the Original Agreement and any oral or written communications exchanged during the public review process leading to approval of this Development Agreement. 8.10 Construction. Each Party has participated fully in the review and revision of this Development Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply to interpreting this Development Agreement. The language in this Development Agreement shall be interpreted as to its fair meaning and not strictly for or against any Party. 8.11 Assignment. This Development Agreement shall be binding upon and, except as otherwise provided in this Development Agreement, shall inure to the benefit of the successors in interest or the legal representatives of the Parties. Master Developer shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Development Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property, provided that to the extent Master Developer assigns any of its obligations under this Development Agreement, the assignee of such obligations shall expressly assume such obligations. The express assumption of any of Master Developer’s obligations under this Development Agreement by its assignee or transferee shall thereby relieve Master Developer of any further obligations under this Development Agreement with respect to the matter so assumed. BNP Paribas shall provide written notice to the Parties of any successor or assignee entity that assumes BNP’s rights and obligations pursuant to this Development Agreement. 8.12 Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Development Agreement shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, three (3) business days after mailed. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): E-50 1001679.22 FINAL To the Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748-4452 Email: vegger@avon.org With a required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney Telephone: (970) 748-4000 Email: townattorney@avon.org To TCMD : Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com E-51 1001679.22 FINAL With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To VMD: The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com EMD Limited Liability Company c/o Lava Corporation P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Michael Lindholm, President Telephone: (970) 949-6776 E-52 1001679.22 FINAL Email: michaellindholm@traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com E-53 1001679.22 FINAL To the Limited Parties: Avon Urban Renewal Authority P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748-4452 Email: vegger@avon.org With a required copy to: Avon Urban Renewal Authority P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney Telephone: (970) 748-4000 Email: townattorney@avon.org The Village (at Avon) Mixed-Use Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com The Village (at Avon) Commercial Public Improvement Company 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com E-54 1001679.22 FINAL With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To the Intended Beneficiaries: BNP Paribas, an International Bank 787 Seventh Avenue, 9th Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: 212.841.3607 Email: barbara.eppolito@us.bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Attn: Brandee Caswell Telephone: (303) 607-3826 Email: Brandee.Caswell@faegrebd.com Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact and required copy information set forth above.] The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com 8.13 Counterparts. This Development Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. E-55 1001679.22 FINAL IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this Development Agreement as of the Execution Date, with the intent that this Development Agreement shall be legally binding on each such signatory and legally attach to and encumber the Property upon the occurrence of the Effective Date. [SIGNATURE AND NOTARY PAGES FOLLOW THIS PAGE] F-1 1001679.22 FINAL EXHIBIT F Definitions 1. 2013 Bond Reissue means bonds issued by VMD TCMD on or prior to the Effective Date to refund TCMD’s Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds, Series 2004, in implementation of the Settlement Term Sheet, including but not limited to any refunding bonds issued by a District to repay or defease bonds as to which BNP is a credit enhancer, letter of credit provider or bondholder. 2. 2013 Reissue Documents means any indenture, custodial agreement, reimbursement agreement or other agreement entered into by a District in connection with the 2013 Bond Reissue that pledges all or any portion of District Revenues to payment of the 2013 Bond Reissue (and/or to the provider of any credit enhancement for the 2013 Bond Reissue) and establishes the priority of uses for which District Revenues can be utilized. 3. 2013 Bond Repayment Period means the period commencing on the initial issuance date of the 2013 Bond Reissue and terminating on the earlier to occur of: (i) the date on which all obligations constituting the 2013 Bond Reissue and all District obligations to any purchaser of (and/or provider of credit enhancement for) the 2013 Bond Reissue have been paid in full; or (ii) the date on which the lien on District Revenues in favor of the 2013 Bond Reissue and all District obligations to any purchaser of (and/or provider of credit enhancement for) the 2013 Bond Reissue otherwise have been released. 4. 1. Accept(ed)/Acceptance means the Town’s acceptance of Dedicated real property interests and Public Improvements located therein for purposes of ownership and maintenance, consisting of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect from time to time) as modified and or exempted by the Development Plan; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 5. 2. Accommodations/Lodging Fee means the Credit PIF imposed pursuant to the PIF Covenants on accommodations/lodging transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Accommodations/Lodging Fee shall be construed to be part of a Taxable Transaction, and shall be subject to the Town’s tax on accommodations/lodging transactions. 6. 3. Additional Developer Advances means funds advanced after the Effective Date for Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner to or on behalf of TCMD, VMD or another District (whether the corresponding Capital Projects are undertaken directly by such District or acquired by such District after construction by the party entitled to reimbursement for the costs thereof), which advances are subject to reimbursement by such District utilizing Credit PIF Revenues, together with simple interest at a rate equal to the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the particular Additional Developer Advance being made, for Baa investment grade bonds on the date of such advance plus 375 basis points, and which are secured by such District’s issuance of an instrument (note, bond, funding/reimbursement agreement or similar form of instrument) evidencing such District’s F-2 1001679.22 FINAL financial obligation to repay such advances; provided, however, that Master Developer’s contributions to the Asphalt Overlay Account pursuant to Section 6.6(a)(iv) shall be construed to be Additional Developer Advances only to the extent reimbursable from a District using Credit PIF Revenues. 7. 4. Add-On PIF means that portion of the Public Improvement Fees with respect to which the Tax Credit does not apply or attach. As of the Effective Date, the Add-On PIF consists only of the Add-On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the future to impose the Add-On PIF on other types of transactions and/or at a rate in excess of the Add-On RSF rate required by this Development Agreement. 8. 5. Add-On PIF Revenues means the gross revenues actually collected from imposition of the Add-On PIF in accordance with the PIF Covenants, which may consist of Add-On RSF Revenues, Municipal Payments and other revenues derived from imposition of the Add-On PIF on transactions other than retail sales that are Taxable Transactions or at rates in excess of the Add-On RSF rate. 9. 6. Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions that are Taxable Transactions at the rate set forth in Section 6.4(b) and in accordance with the terms and conditions of the Financing Plan. 10. 7. Add-On RSF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Add-On RSF Revenues on behalf of the PICs. 11. 8. Add-On RSF Collection Services Agreement(s) means one or more agreements entered into from time to time by and betweenamong the PICs, the Town and the Add-On RSF Collection Agent providing for the administration, collection and distribution of the Add-On RSF Revenues. 12. 9. Add-On RSF Revenues means the gross revenues actually collected from imposition of the Add-On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments to be remitted to the Town during the Term as set forth in Section 6.5 and the remainder of which (including any such revenues the PICs continue to collect after the Term) shall be utilized for other lawful purposes otherwise authorized by the PIF Covenants. 13. 10. Allowed O&M Expenses means the amount of District Revenues to be remitted to and retained by TCMD and/or VMD, as applicable, in each calendar year during the Term for payment of: (i) TCMD’s annual contribution to the Asphalt Overlay Account; (ii) the Annual Debt Service Obligation; and (iii) the annual Base O&M Amount. For each full calendar year during the Term, the Allowed O&M Expenses (in each case, to be reduced in an amount equal to the amount, if any, by which the Annual Debt Service Obligation is less than $500,000 per year) shall be: (A) for calendar years 2013 through 2017, $1,000,000 (One Million Dollars); (B) for calendar year 2018 and each subsequent calendar year including the calendar year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $1,025,000 (One Million Twenty-Five Thousand Dollars); and (C) for each calendar year after the year in which the Town assumes sole responsibility for all costs of asphalt overlays in accordance with Section 6.6(b), $950,000 (Nine Hundred Fifty Thousand Dollars) per year. F-3 1001679.22 FINAL 14. Annual Base O&M Amount means $460,000 per year for each of calendar years 2013 through 2017, and $450,000 per calendar year for each calendar year thereafter. 15. 11. Annual Debt Service Obligation has the meaning and is subject to the terms, conditions, restrictions and requirements set forth in the Pledge Agreement. 16. 12. Applicant means the Landowner of the real property comprising the Site for which a Development Application is submitted, or an individual or entity whom the Landowner has designated in writing as its authorized representative for the purpose of representing the Landowner and/or acting upon any Development Application or submittal for development of the pertinent Site (which may be a contract purchaser or owner of an option to purchase fee simple ownership of the Site or portion thereof with the fee owner’s written consent to any such application or submittal, or which may be an owners’ association for a condominium project or like common interest ownership project). Notwithstanding any additional or conflicting provision of the Municipal Code (whether as in effect on the Execution Date or as amended from time to time), the definition of “Applicant” shall not be construed to mean any person or entity owning, holding or possessing an easement interest, a leasehold interest, a license, a security interest or any other form of interest in the Site, whether possessory or otherwise, other than fee simple ownership of the Site as reflected in the official records of the Eagle County Tax Assessors office. 17. 13. Approved SSDP(s) means, individually or collectively: (i) the Development Agreement; (ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date, Town Council approves (or otherwise approved by the Town including, for example, an administratively approved final plat, an administratively approved amendment to the PUD Guide or similar previously approved Site Specific Development Plan) and designates as a Site Specific Development Plan that establishes Vested Property Rights, together with amendments (if any) to such approved Development Applications. 18. 14. Article refers to a numbered Article of the Development Agreement, unless otherwise stated. 19. 15. Asphalt Overlay Agreement means that certain Asphalt Overlay Escrow Account Agreement entered into concurrently with the Effective Date by and among the Town, TCMD and First Bank, Avon Branch and which establishes the terms and conditions upon which funds shall be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account as generally provided in Section 6.6. 20. 16. Asphalt Overlay Account means a restricted escrow account established pursuant to the Asphalt Overlay Agreement into which Master Developer, the Town and TCMD and/or VMD shall deposit funds for asphalt overlays of public roads in the Project in accordance with the terms and conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii) and 6.6. 21. 17. AURA means the Avon Urban Renewal Authority, a body corporate duly organized and existing as an urban renewal authority under the laws of the State of Colorado. 22. 18. Authority means the Upper Eagle Regional Water Authority, a quasi-municipal corporation and political subdivision of the State of Colorado, together with any successor water service provider (whether pursuant to dissolution of the Authority or otherwise). F-4 1001679.22 FINAL 23. 19. Avon Receivable means TCMD’s past due payment obligation to the Town in the principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with interest thereon as provided in Section 6.9(b)(v)(B)3.II (such principal amount inclusive of $98,798.46 of expenses incurred by the Town in connection with design work for the East Beaver Creek Boulevard Phase 3 obligation as defined in the Original Agreement, which East Beaver Creek Boulevard Phase 3 obligation is extinguished by this Development Agreement). 20. Base O&M Amount means the amount of District Revenues available each year for TCMD’s payment of ongoing operation, maintenance, administrative and other legally authorized costs, which amount shall be equal to that portion of the total Allowed O&M Expenses which is the remainder of the total Allowed O&M Expenses for such year after subtracting: (i) the Annual Debt Service Obligation; and (ii) TCMD’s contribution to the Asphalt Overlay Account. 24. 21. BNP means BNP Paribas, an international bank, together with its successors and assigns. 25. BNP Pledge Period means any period during which a District has outstanding obligations to BNP secured by a pledge of all or any portion of District Revenues. 26. 22. Bond Requirements means the following costs incurred in connection with the issuance of any District Debts other than principal payments (including mandatory sinking fund payments): (a) interest payments on the outstanding principal of District Debts; (b) payments to replenish bond reserve accounts, provided that a bond reserve for any District Debts shall not exceed maximum annual debt service on such District Debts; (c) periodic fees related to credit enhancements (including, without limitation, the Deferred Fees, if any); (d) prepayment premiums; (e) arbitrage rebate payments; (f) fees and expenses of any bond trustee, bond registrar, paying agent, authenticating agent, rebate analyst or consultant, calculation agent, remarketing agent; (g) payments to any rating agency for maintaining a rating on the District Debt; (h) payments due to any provider of an interest rate swap or interest rate cap; and (i) any other amount approved by the Town. Notwithstanding the foregoing, Bond Requirements on the Water Tank Bonds shall be limited as provided in the Pledge Agreement. Bond Requirements does not include any such costs which are capitalized and paid with the Net Proceeds of District Debts. 27. 23. Cap Amounts has the meaning set forth in Section 6.2(b). 28. 24. Capital Projects means: (i) Public Improvements required by the Town as a condition of approving a Development Application (for example, public streets; wet utilities such as water, sewer, storm drainage; related grading and landscaping, etc.), and specifically including the Prioritized Capital Projects; and (ii) even if not specifically required as a condition of approving a Development Application, Public Improvements that serve or benefit the Project and which are eligible to be financed by the Districts and/or AURA under applicable laws. 29. 25. Capital Project Costs means all costs and expenses incurred in connection with the design and construction of Capital Projects, including but not limited to design, engineering, surveying, soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant fees, and application and permit fees related thereto, but not including, if any, Bond F-5 1001679.22 FINAL Requirements or any costs described in the first sentence of the definition of Bond Requirements which are capitalized and incurred in connection with issuance of District Debts with respect to such Capital Projects. 30. 26. Commercial PIC means The Village (at Avon) Commercial Public Improvement Company, a Colorado non-profit corporation. 31. 27. Credit PIF means, collectively, the Real Estate Transfer Fee, the Accommodations/Lodging Fee and the Retail Sales Fee with respect to each of which the Tax Credit applies and attaches in accordance with Section 6.1, as implemented by Sections 3.08.035 (with respect to sales tax), 3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with respect to public accommodations tax) of the Municipal Code (as in effect on the Execution Date), and a building materials use fee if adopted in accordance with Section 6.4(a)(iv). 32. 28. Credit PIF Cap has the meaning set forth in Section 6.2(b). 33. 29. Credit PIF Collection Agent means Special District Management Services, Inc., or any successor entity engaged from time to time, to administer the collection and distribution of the Credit PIF Revenues on behalf of the PICs. 34. 30. Credit PIF Collection Services Agreement(s) means one or more agreements betweenentered into from time to time by and among the Credit PIF Collection Agent, the PICs, Master Developer and TCMD and/or the applicable District(s) providing for the administration, collection and distribution of the Credit PIF Revenues. 35. 31. Credit PIF Revenues means the gross revenues actually collected from imposition of the Credit PIF. 36. 32. Debt Service Coverage Ratio means, for any calendar year until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, the Net Revenue received by or on behalf of both Districts during such period divided by Debt Service for such year. For the purposes of calculating the Debt Service Coverage Ratio: has the meaning assigned to it in the applicable 2013 Reissue Documents. (a) “Net Revenue” means, for each such calendar year, that portion of the total of all District Revenues received by the Districts which is the remainder of the total of all such District Revenues received in such year minus: (i) TCMD’s annual contribution to the Asphalt Overlay Account; (ii) the annual Base O&M Amount; (iii) proceeds from Additional Developer Advances; and (iv) Net Proceeds from Supplemental Bonds (other than Additional Developer Advances). (b) “Debt Service” means, for any such calendar year, the sum of the amounts to be paid or deposited for the purpose of paying, pursuant to the requirements of the documents under which such obligations are issued: (i) principal, interest and any other Bond Requirements due in such year on (A) the TCMD Bond Reissue and (B) Supplemental Bonds; plus (ii) the Annual Debt Service Obligation; plus (iii) the Deferred Amortization and Deferred Fee amounts due in such year (which shall be a cumulative total of the Deferred Amortization and Deferred Fee due from prior years, if any, and the current year). F-6 1001679.22 FINAL 37. 33. Dedicate(d)/Dedication means the conveyance, whether by plat or by special warranty deed in the form attached as Exhibit B, to the Town or other appropriate governmental or quasi-governmental entity of real property for a specified purpose, together with Public Improvements installed thereupon, if any, free and clear of all monetary liens and those non-monetary encumbrances that are not materially inconsistent with the purpose(s) for which Town or other governmental or quasi-governmental entity is acquiring the real property and related Public Improvements. 38. 34. Deferred Amortization means, (i) in any year until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, the difference between the principal amount due on the TCMD Bond Reissue and the principal amount that was due in that year under the financing documents governing the TCMD Variable Rate Revenue Bonds, Series 2002 or the TCMD Variable Rate Revenue Bonds, Series 2004, as applicable; and (ii) as of any date of computation, the sum of all amounts determined as set forth in clause (i), for years prior to and including (but not subsequent to) the date of computation, that have not been paid as of that datehas the meaning assigned to it in the applicable 2013 Reissue Documents. 39. 35. Deferred Fees means, until there are no outstanding obligations to BNP under the TCMD Reissue Documents or any subsequent reissue or refunding of such bonds, any Facility Fees (as defined in the Reimbursement Agreement between TCMD and BNP entered into in connection with the TCMD Bond Reissue) that are not required to be paid when accrued in accordance with the terms of the Reimbursement Agreement, including interest thereon calculated at the rate of 2.5% per annumhas the meaning assigned to it in the applicable 2013 Reissue Documents. 40. 36. Design Covenant means the Declaration of Master Design Review Covenants For The Village (at Avon) dated May 8, 2002 and Recorded on May 8, 2002 at Reception No. 795011, as amended by the First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated June 4, 2008 and Recorded on June 10, 2008 at Reception No. 200812112 and by the Second Amendment and Ratified First Amendment to Declaration of Master Design Review Covenants For The Village (at Avon) dated September 16, 2010 and Recorded on September 16, 2010 at Reception No. 201018341, and as may be further amended from time to time. 41. 37. Design Review Board means The Village (at Avon) Design Review Board as appointed or elected in accordance with the Design Covenant. 42. 38. Design Review Guidelines means the sole and exclusive architectural design, landscape design, urban design and Site design and use standards applicable within the Property as set forth in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011, together with any amendment(s) the Design Review Board may approve after providing notice thereof in accordance with Section 3.1, as prepared, approved and promulgated by the Design Review Board from time to time. F-7 1001679.22 FINAL 43. 39. Developer(s) means, with respect to any Site, the individual or entity which is causing the development of infrastructure and/or or vertical improvements within such Site to be performed. 44. 40. Developer Affiliate(s) means, individually or collectively as the context dictates, TC-RP, TC Plaza, TC-HD and TC-WMT, together with any other entity with respect to which TCLLC or EMD is the managing member and which acquires title to any portion of the Property after the Execution Date. 45. 41. Development Agreement has the meaning set forth in the initial paragraph of the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) to which this Exhibit F is attached and incorporated into. 46. 42. Development Application means any form of application or submittal to the Town for review and approval of any form of development within the Property, including but not limited to an application or submittal regarding an amendment to the PUD Guide, an amendment to the PUD Master Plan, a preliminary subdivision plan, a final subdivision plat, a grading permit, a building permit or similar matters. 47. 43. Development Plan means, collectively: (a) the Development Agreement; and (b) the PUD Guide. 48. 44. District(s) means, individually or collectively as the context dictates, TCMD, VMD and any additional metropolitan district(s) that may be formed subsequent to the Execution Date for the purpose of providing services and/or Public Improvements and or other forms of improvements benefiting all or any portion of the Property. 49. 45. District Debts means, collectively, the following financial obligations of TCMDthe Districts (and any refunding thereof accomplished in accordance with the Development Agreement), the full payment of which shall result in expiration of the Term (unless the Town elects to continue the Tax Credit pursuant to Section 6.1(d)): (i) the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b); and (ii) the Deferred Amortization. 50. 46. District Director(s) means, individually or collectively, the individuals who from time to time hold a seat on the board of directors of a District. 51. 47. District Revenues means, collectively, the Credit PIF Revenues, the Project Ad Valorem Taxes (and related specific ownership taxes), proceeds of Supplemental Bonds (other than Additional Developer Advances), proceeds from Additional Developer Advances and any other lawful revenues of the Districts, including but not limited to revenues from service charges, development fees, impact fees, tap fees (net of amounts required to be remitted to Eagle-Vail Metropolitan District) or similar sources of revenue to the Districts, if any. 52. 48. Effective Date means the date on which the Development Agreement is Recorded. F-8 1001679.22 FINAL 53. 49. EMD means EMD Limited Liability Company, a Colorado limited liability company. 54. 50. Execution Date has the meaning set forth in the initial paragraph of the Development Agreement. 55. 51. Exhibit means the following exhibits to the Development Agreement, all of which are incorporated by reference into and made a part of the Development Agreement: Exhibit A - Legal Description of Property Exhibit B - Form of Special Warranty Deed for Conveyances to the Town Exhibit C - Form of Covenant and Temporary Easement Agreement Exhibit D - Prioritized Capital Projects Exhibit E - Schedule of Past Developer Advances and Avon Receivable Exhibit F - Definitions 56. 52. Final Acceptance means the Town’s undertaking of full responsibility for all operations maintenance, repair, and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights-of-way, management of noxious weeds and similar matters in accordance with Town’s generally applicable procedures and standards) with respect to Dedicated Public Improvements upon expiration of the warranty period and resolution of any warranty matters arising during the period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 57. 53. Financing Plan means the arrangements, obligations and rights set forth in Article 6 with respect to the financing and/or refinancing of Capital Projects and other Public Improvements in the manner and for the purposes described in the Development Agreement. 58. 54. Forest Service Village Parcel means that parcel of land located between Planning Areas I and J which, as of the Execution Date, is owned by the U.S. Forest ServiceTown. 59. 55. Intended Beneficiary(ies) means, as more particularly described in and subject to the terms and limitations of Section 1.8(b), BNP, VMD, Developer Affiliates and Landowners other than those who are Parties. No other party or entity shall be construed to be an intended beneficiary or to have any legal right to enforce or rely on any provision, obligation, term or condition of the Development Agreement. 60. 56. Landowner(s) means the fee owner of any real property comprising the Property or any portion thereof. 61. 57. Lender(s) means those entities having a security interest in any portion of the Property as of the Execution Date and, which entities have executed the Acknowledgement and Consent F-9 1001679.22 FINAL form attached to and incorporated within thea form of consent and subordination to this Development Agreement that is to be recorded concurrently with this Development Agreement. 62. 58. Limited Party(ies) means, individually or collectively as the context dictates and as more particularly described in and subject to the terms and limitations of Section 1.8(a), AURA, EMD, the Commercial PIC and the Mixed-Use PIC. 63. 59. Litigation has the meaning set forth in Recital H. 64. 60. Lot 1 means Lot 1, Amended Final Plat, The Village (at Avon) Filing 1, according to the plat thereof Recorded at Reception No. 898173, and amended by The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date). 65. 61. Master Developer means EMD (with respect to Planning Area I only) and TCLLC (in all other respects), which entities (or any successor entities), as more specifically described in Section 1.7, are designated and authorized to act on behalf of all Developer Affiliates. 66. 62. Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company, a Colorado non-profit corporation. 67. 63. Municipal Code means the Town’s municipal code as in effect from time to time unless otherwise stated in the Development Agreement. 68. 64. Municipal Payment(s) means, as more particularly described in Sections 6.4(b) and 6.5 and in implementation of the Settlement Term Sheet, that portion of the Add-On RSF Revenues (net of the costs of collection as set forth in the Add-On RSF Collection Services Agreement) derived from application of the Add-On RSF to retail sales transactions only (and not to any other Taxable Transactions) which the Town requires to provide a reliable revenue source with growth potential to compensate the Town, and which the Town is entitled to receive, for: (i) providing Municipal Services (whether prior to or after the Effective Date); (ii) releasing TCMD (and all other parties to the Litigation) from the sales tax indemnity obligations (as such obligations were set forth in the Original Agreement); and (iii) assuming TCMD’s maintenance obligations pursuant to Section 4.2(c). 69. 65. Municipal Services has the meaning set forth in Section 4.1. 70. 66. Net Proceeds has the following meanings: (i) for the Water Tank Bonds, the amount of bond proceeds available for payment of Capital Project Costs; (ii) for Past Developer Advances and any Additional Developer Advances, the full amount of the advances made to TCMD, VMD or another District for Capital Project Costs; and (iii) for Supplemental Bonds issued in the form of obligations other than Additional Developer Advances, the Total Repayment Cost Comparison amount calculated as follows: (A) if the Total Repayment Cost Comparison amount is a positive number, the Net Proceeds of such Supplemental Bonds shall be defined as the amount that is equal to the amount of the proceeds available from such Supplemental Bonds for payment of Capital Project Costs; and (B) if the Total Repayment Cost Comparison amount is a negative number, the Net Proceeds of such Supplemental Bonds shall defined as the amount that is equal to the sum of the amount of bond proceeds available from such Supplemental Bonds for payment of Capital F-10 1001679.22 FINAL Project Costs plus the Total Repayment Costs Comparison amount expressed as a positive number. 71. 67. Non-Cap Amounts has the meaning set forth in Section 6.2(c). 72. 68. Original Agreement means that certain Annexation and Development Agreement executed by and between the Town and the Original Owners as of October 13, 1998 and Recorded on November 25, 1998 at Reception No. 67774, as amended by: (i) pursuant to Ordinance 01-16, the First Amendment to Annexation and Development Agreement dated as of November 13, 2001, and Recorded on December 10, 2001 at Reception No. 779049; (ii) pursuant to Ordinance 03-08, the Second Amendment to Annexation and Development Agreement dated as of May 27, 2003, and Recorded on July 30, 2003 at Reception No. 842248; and (iii) pursuant to Ordinance 04-17, the Third Amendment to Annexation and Development Agreement dated as of October 26, 2004, and Recorded on December 22, 2004 at Reception No. 901429. 73. 69. Original Effective Date means October 13, 1998. 74. 70. Original Owners means EMD, PVRT NOTT I LLC, a Colorado limited liability company, PVRT NOTT II LLC, a Colorado limited liability company, and PVRT NOTT III LLC, a Colorado limited liability company, which entities owned the Property as of the execution date of and were defined as “Owners” in the Original Agreement (TCLLC being the successor entity to the PVRT entities as described in the Third Amendment of the Original Agreement). 75. 71. Original PUD Guide means The Village (at Avon) PUD Guide dated October 13, 1998 and recorded in the real property records of Eagle County, Colorado, on November 25, 1998 at Reception No. 677744, as amended by: (i) PUD Development Plan Administrative Amendment No. 1 (amending the PUD Master Plan only), dated May 21, 2001, and recorded in the real property records of Eagle County, Colorado, on July 31, 2001 at Reception No. 763439; (ii) PUD Guide Administrative Amendment No. 2, dated February 13, 2002, and recorded in the real property records of Eagle County, Colorado, on February 29, 2002 at Reception No. 786254; (iii) PUD Guide Administrative Amendment No. 3, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2001 at Reception No. 795806; (iv) PUD Guide Administrative Amendment No. 4, dated May 15, 2002, and recorded in the real property records of Eagle County, Colorado, on May 15, 2002 at Reception No. 795805; and (v) Formal Amendment Number One to The Village (at Avon) PUD Guide, dated January 25, 2007, and recorded in the real property records of Eagle County, Colorado, on March 2, 2007 at Reception No. 200705491. 76. 72. Party(ies) means, individually or collectively as the context dictates, the Town, TCMD, VMD and Master Developer. 77. 73. Past Developer Advance(s) means, collectively and as more specifically set forth in Exhibit E, the following TCMD obligations incurred prior to the Effective Date: (i) the principal payable to certain of the Developer Affiliates, together with interest thereon at the rate set forth in the documents creating such obligations; and (ii) the principal balance payable to the Buffalo Ridge Affordable Housing Corporation, together with interest thereon at the rate set forth in the documents creating such obligation F-11 1001679.22 FINAL 78. 74. Permitted Uses has the meaning set forth in Section 6.2(a). 79. 75. PIC(s) means, individually or collectively as the context dictates, the Commercial PIC and/or the Mixed-Use PIC and/or any other public improvement company established for the Property from time to time. 80. 76. PIF Covenants means, collectively and as amended from time to time (specifically including those amendments to be Recorded contemporaneously with the Effective Date), the Declaration of Covenants for The Village (at Avon) Commercial Areas Recorded May 8, 2002 at Reception No. 795012 and the Declaration of Covenants for The Village (at Avon) Mixed Use Areas Recorded May 8, 2002 at Reception No. 795013. 81. 77. Planning Area(s) means the portion(s) of the Property described in the PUD Guide and depicted in the PUD Master Plan as “Planning Areas” or identified therein as “PA-[x].” 82. 78. Pledge Agreement means that certain Water Tank Bonds Pledge Agreement made and entered into by and among TCMD, VMD and the Authority, and having an effective date concurrent with the Effective Date. 83. 79. Preliminary Acceptance means the Town’s Acceptance of ownership of Dedicated Public Improvements (including real property interests and/or improvements constructed thereupon) and undertaking of full responsibility for all operations maintenance, repair and capital replacement obligations (including but not limited to maintenance and snow removal of roadways, water and sewer lines, storm drainage improvements, maintenance of streetscape improvements within the Dedicated rights-of-way, management of noxious weeds and similar matters in accordance with Town’s generally applicable procedures and standards) with respect to Dedicated Public Improvements, subject to the warranty period (as set forth in the Municipal Code as in effect from time to time) and the applicable Developer’s or District’s resolution of any warranty matters arising during such period of Preliminary Acceptance; subject, however, to the terms and conditions of Section 4.2(d) regarding asphalt overlays. 84. 80. Prioritized Capital Projects has the meaning set forth in Section 3.10. 85. 81. Project means the mixed-use project proposed to be developed on the Property with the uses, densities and development standards more particularly described in the Development Plan. 86. 82. Project Ad Valorem Taxes means the tax revenues resulting from imposition of the respective mill levies of TCMD and VMD, net of the costs of collection retained by the Eagle County treasurer. 87. 83. Property has the meaning set forth in Recital B. 88. 84. Public Improvement(s) has the meaning ascribed to such term in the PUD Guide, and includes but is not limited to all such improvements specifically or generally described in the Service Plans. 89. 85. Public Improvement Agreement(s) means a public improvement agreement (as such term generally is used in Section 7.32.100 of the Municipal Code (as in effect from time to time), F-12 1001679.22 FINAL subject to the terms and conditions of the Development Plan modifying and/or exempting application of said Section 7.32.100) that is executed, either prior or subsequent to the Effective Date, in connection with the proposed development of a portion of the Property. 90. 86. Public Improvement Fee(s) means the Credit PIF, the Add-On RSF and any future Add-On PIF other than the Add-On RSF, which are privately imposed fees (and not taxes) imposed on Taxable Transactions (and such other transactions as may be set forth in the PIF Covenants from time to time) in accordance with the terms and conditions of the PIF Covenants and the Development Agreement. 91. 87. PUD Master Plan means The Village (at Avon) P.U.D. Development Plan/Sketch Plan dated November 7, 2012, attached as Exhibit B of the PUD Guide, as amended from time to time, which constitutes the approved sketch plan and master plan for development within the Property. 92. 88. PUD Guide means the Amended and Restated PUD Guide for the Property (and all exhibits thereto, including but not limited to the PUD Master Plan) dated November 7, 2012, as amended from time to time. 93. 89. Real Estate Transfer Fee means the Credit PIF imposed pursuant to the PIF Covenants on real estate transfer transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions. The Real Estate Transfer Fee shall not be construed to be part of a Taxable Transaction, and shall not be subject to the Town’s tax on real estate transfer transactions. 94. 90. Recital(s) means, individually or collectively as the context dictates, the information set forth in the provisions of the “Recitals” section of the Development Agreement. 95. 91. Record(ed/ing) means to file, having been filed or appearing in the real property records of the Eagle County Clerk and Recorder’s office. 96. 92. Replacement Bonds means bonds that TCMDone or more of the Districts may issue after the Effective Date for the purpose of extinguishing, replacing, refunding or defeasing all or portions of the Past Developer Advances which: (i) bear a lower effective interest rate than the effective interest rate of the Past Developer Advances, (ii) are not secured by (and cannot be paid from) Credit PIF Revenues; and (iii) unless otherwise agreed to by the Town in writing, do not exceed a par value of $12.4 million in principal; and (iv) do not result in an increase of, or count against, the Credit PIF Cap. 97. 93. Retail Sales Fee means the Credit PIF imposed pursuant to the PIF Covenants on retail sales transactions occurring within the Project which, subject to application of the Tax Credit, are Taxable Transactions and, pursuant to Section 6.4(a)(iv), shall be imposed on the use of building materials within the Project to the extent the Town in the future enacts a municipal use tax on building materials. 98. 94. Revocable License Agreement means that certain Revocable License Agreement for Snow Storage executed concurrently with the Effective Date by and among EMD-CM LLC, a Colorado limited liability company, TC-RP (such entities being assignees of Master Developer’s rights pursuant to Section 3.7(b)) and the Town, with respect to the rights and obligations of the F-13 1001679.22 FINAL parties thereto regarding the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)) for snow storage. 99. 95. Sanitation District means the Eagle River Water & Sanitation District. 100. 96. School Sites Dedication has the meaning set forth in Section 3.7(a). 101. 97. Section refers to a numbered section of the Development Agreement, unless otherwise stated. 102. 98. Service Plan(s) means, individually or collectively as the context dictates and as may be amended from time to time, the Service Plan(s) for TCMD and VMD, each dated August 25, 1998, and approved by the Town Council in accordance with Part 2, Article 1, Title 32, C.R.S., together with any other service plan(s) that Town Council may approve for such additional District(s) as may be organized for the Project in the future. 103. 99. Settlement Term Sheet has the meaning set forth in Recital H. 104. 100. Site has the meaning ascribed to such term in the PUD Guide. 105. 101. Site Specific Development Plan means a “site specific development plan” as defined in the Vested Property Rights Statute, but for avoidance of doubt shall not be construed to include a preliminary plat, a grading permit, a building permit, or the continuation of a temporary use beyond the term contemplated therefor in the approval. 106. 102. Supplemental Bonds means additional financial obligations of TCMDone of more of the Districts in a cumulative amount up to the portion of the otherwise unfunded portion of the Credit PIF Cap (including bonds issued by TCMDone or more Districts and/or Additional Developer Advances) issued at any time during the period commencing on the Effective Date and continuing through and including January 1, 2040: (i) which are payable in whole or in part from Credit PIF Revenues; and (ii) some or all of the proceeds of which are utilized to finance Capital Projects and/or to refund and defease Replacement Bonds. 107. 103. Tank Agreement means that certain Traer Creek Water Storage Tank Agreement and Second Amended Water Service Agreement made andhaving an “Effective Date” (as defined therein) of December 26, 2012, entered into as of [insert effective date] by the Authority, the Town, TCMD, Master Developer and certain “Limited Parties” (as defined therein). 108. 104. Tank Project has the meaning set forth in the Tank Agreement. 109. 105. Tank Project Bonds Financing has the meaning set forth Section 5.5(b) and in the Tank Agreement. 110. 106. Tax Credit means the Town’s obligation to provide tax credits as described in Section 4.2(a) and in Article 6, which obligation is implemented by and codified in the Municipal Code (as in effect on the Execution Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). F-14 1001679.22 FINAL 111. 107. Taxable Transaction(s) means a retail sales transaction, a real estate transfer transaction, or an accommodations/lodging transaction occurring within the Property which, subject to application of the Tax Credit as set forth in the Development Agreement, is subject to the Town’s sales tax, the Town’s real estate transfer tax or the Town’s accommodations/lodging tax. If the Town imposes any use tax on building materials during the Term that is not in effect as of the Execution Date such use tax shall be automatically and without the need of any formal action incorporated into the foregoing definition. 112. 108. TC-HD means Traer Creek-HD LLC, a Colorado limited liability company. 113. 109. TCLLC means Traer Creek LLC, a Colorado limited liability company. 114. 110. TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 111. TCMD Bond Reissue means bonds issued by TCMD on or prior to the Effective Date to refund its Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds, Series 2004, in implementation of the Settlement Term Sheet, including but not limited to any refunding bonds issued to repay or defease such bonds as to which BNP is a credit enhancer, letter of credit provider or bondholder. 112. TCMD Reissue Documents means the indenture, the custodial agreement and related documentation executed in connection with closing of the TCMD Bond Reissue and which establish, inter alia, the priority of uses for which District Revenues can be utilized. 115. 113. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company. 116. 114. TC-RP means Traer Creek-RP LLC, a Colorado limited liability company. 117. TC-RP Additional Tank Project Financing Reimbursement has the meaning set forth in Section 5.5(b)(iii). 116.118. TC-RP Additional Tank Project Financing Non-Credit PIF Revenue Reimbursement has the meaning set forth in Sections 5.5(b)(iii)(B) and 6.9(b)(v)(B)(4). 117.119. 115. TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company. 118.120. 116. Term means the period commencing on the Effective Date and continuing through and including the date upon which payment in full of all issued and outstanding District Debts occurs (or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to Section 6.14(a)); provided, however, the Term shall not be deemed to have expired prior to January 2, 2040, unless, prior to January 2, 2040: (i) (A) TCMD hasone or more Districts have issued Supplemental Bonds up to the full amount of the Credit PIF Cap; and (B) all such Supplemental Bonds and all other District Debts have been fully paid; or (ii) the Town has exercised its option to fully fund the Credit PIF Cap pursuant to Section 6.14(a). F-15 1001679.22 FINAL 119.121. 117. TIF Revenues means the net revenues actually received by AURA from the property tax increment resulting from creation of one or more urban renewal area(s) including all or any part of Lot 1. For purposes hereof, the term “net revenues” means the revenues remaining available for use by AURA after remitting: (i) to the Districts, 100% of the tax increment revenues resulting from the Project Ad Valorem Taxes; and (ii) to any other taxing authorities having territory within the Property, such portions of the tax increment revenues resulting from the mill levies of the other taxing authorities as AURA may be required to remit pursuant to the terms of separate agreements with such taxing authorities, if any. 120.122. 118. Total Repayment Cost Comparison means the Total Repayment Costs of Additional Developer Advances minus the Total Repayment Cost of Supplemental Bonds issued in the form of obligations other than Additional Developer Advances. 121.123. 119. Total Repayment Cost of Additional Developer Advance means (i) the amount available to pay Capital Project Costs from the proceeds of the Supplemental Bonds for which the Total Repayment Cost Comparison is being calculated plus (ii) the total amount of interest which would accrue from the date of issuance of such Supplemental Bonds to the respective maturity dates of such Supplemental Bonds calculated by multiplying the Principal Amount Maturing by the Municipal Market Data rate (or, if the foregoing index is no longer published, then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the Supplemental Bonds being issued, for Baa investment grade bonds on the date of issuance of such Supplemental Bonds plus 375 basis points. For purposes of this calculation, Principal Amount Maturing means the principal amount maturing on each maturity date for such Supplemental Bonds multiplied by the percentage obtained by dividing the amount available to pay Capital Project Costs from such Supplemental Bonds by the total principal amount of such Supplemental Bonds. For purposes of this calculation, a maturity date is the date on which principal is scheduled to be paid including a mandatory sinking fund date. 122.124. 120. Total Repayment Cost of Supplemental Bonds means, with respect to Supplemental Bonds issued in the form of obligations other than Additional Developer Advances, the sum of: (i) the total principal amount of such Supplemental Bonds less the amount of the principal, if any, representing capitalized interest as identified in the indenture of trust or other financing document governing the payment of such Supplemental Bonds, plus (ii) the total amount of interest to accrue on the Supplemental Bonds from their date to their respective maturities calculated by multiplying the principal amount maturing on each maturity date by the applicable TRC Interest Rate, plus (iii) the sum of any other known Bond Requirements that will be required to administer the Supplemental Bonds. 123.125. 121. Town means the Town of Avon, a home rule municipal corporation of the State of Colorado. 124.126. 122. Town Council means the Town Council of the Town. 125.127. 123. TRC Interest Rate means, with respect to Supplemental Bonds issued in the form of obligations other than Additional Developer Advances: (i) if the interest rate is fixed during the term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable (subject to the Town’s consent as set forth in Section 6.10), the 30-year average, as of the F-16 1001679.22 FINAL issuance/closing date, of the interest rate index used to determine the variable rate on such Supplemental Bonds as stated in the documents governing the issuance of such Supplemental Bonds plus any adjustment or spread to such index. 126.128. 124. Vested Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on the Original Effective Date. 127.129. 125. Vested Property Rights has the meaning set forth in Section 2.4. 128.130. 126. Vesting Term has the meaning set forth in Section 1.4(a). 129.131. 127. VMD means The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado. 130.132. VMD District Debt Pledge Agreement ” means any agreement pursuant to which VMD has pledged District Revenues to the payment of District Debts other than the 2013 Bond Reissue, which District Debts have been issued or incurred pursuant to the Financing Plan . 131.133. 128. Water Bank has the meaning set forth in Section 3.4(a). 132.134. 129. Water Rights has the meaning set forth in Section 3.4. {00350790.DOCX /}/ 3} 1 ADDENDUM TO TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT THIS ADDENDUM supplements and supersedes that certain Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement (“Tank Agreement”) entered into as of December 26, 2012, and is made and entered into as of this ____ day of September, 2013, by and between the UPPER EAGLE REGIONAL WATER AUTHORITY (the “Authority”); the TOWN OF AVON (“Avon”); the TRAER CREEK METROPOLITAN DISTRICT (“TCMD”); TRAER CREEK LLC (“TCLLC”); TRAER CREEK-RP LLC (“TCRP”); and only for the limited purposes expressly set forth in the Tank Agreement, BNP PARIBAS (“BNP”) and THE VILLAGE METROPOLITAN DISTRICT (“VMD”) (collectively the “Parties”). Any capitalized term used, but not defined in this Addendum, shall have the meaning ascribed to it in the Tank Agreement. The facts set forth in the following RECITALS to the Tank Agreement are hereby acknowledged and affirmed as modified herein. RECITALS This Addendum to the Tank Agreement is made with respect to the following facts: WHEREAS, Avon, TCMD, Master Developer (defined below) and other entities were parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County District Court), and have entered into that certain Settlement Term Sheet dated October 7, 2011 (the “Term Sheet”), to resolve various disputes at issue in the litigation; and WHEREAS, Section 3 of the Term Sheet includes provisions regarding financing and constructing the Tank Project (defined below) within The Village (at Avon) real estate development (the “Property”), the legal description of which is attached hereto as Exhibit A; and WHEREAS, except for certain smaller parcels owned by third parties (as such interests appear of record as of the Effective Date of this Addendum), fee ownership of the bulk of the Property is held by TCRP, EMD Limited Liability Company (“EMD”), Traer Creek Plaza LLC, Traer Creek-HD LLC and Traer Creek-WM LLC (collectively, together with any other entity with respect to which TCLLC is the managing member and which acquires title to any portion of the Property after the Effective Date hereof (the “Developer Affiliates”); and {00350790.DOCX /}/ 3} 2 WHEREAS, for ease of administration and in recognition of the fact that ownership of the Property has and will continue to become diverse as further development occurs, the Developer Affiliates have designated TCLLC to act on their behalf for all purposes in connection with the Tank Agreement and this Addendum, including but not limited to negotiation and execution of this Addendum and any future amendments hereto (in such capacity, TCLLC being “Master Developer”); and WHEREAS, TCRP is the fee owner of the bulk of the undeveloped portion of the Property, including that portion of the Property legally described as Tract J, THE VILLAGE (at AVON) FILING 4 according to the plat recorded _________ ___, 201__, at Reception No. _____, COUNTY OF EAGLE, STATE OF COLORADO (the “Tank Site”) upon which the Tank Project is to be constructed and operated; and WHEREAS, due to certain regulatory changes and changed circumstances, the plans and specifications previously completed by the Developer Affiliates and TCMD (the “2005 Plans”) were updated and modified by the Authority (“Bid-Ready Plans”) for bidding and construction by the Authority; and WHEREAS, TCMD contributed the total sum of $ 211,585.00 to the Authority toward the costs of updating the 2005 Plans that have been completed by the Authority in accordance with the terms and conditions of the Tank Agreement (as updated, the “Bid-Ready Plans”); and WHEREAS, the Bid-Ready Plans prepared for the Authority incorporate all design, engineering and construction drawing criteria required to bid and construct the following improvements as depicted, described and/or specified in the Bid-Ready Plans (collectively, the “Tank Project”): • a 2.0 million gallon treated water storage tank, together with related site grading, retaining walls and similar site improvements (collectively, the “Storage Tank”); and • a year-round all-weather road between the Storage Tank site and the nearest dedicated public road which shall provide year-round all-weather access to the Storage Tank site, portions of which were intended to provide general public access after it is dedicated to Avon and portions of which are intended to be restricted from general public use (the “Access Road”); and • those water lines, electric lines and other utilities required to be installed and connected to provide service to the Tank Site and to connect the Storage Tank to existing water lines, electrical lines and related utilities. WHEREAS, the Authority undertook and performed the following services in accordance with the terms and conditions of the Tank Agreement: {00350790.DOCX /}/ 3} 3 • coordinated preparation and completion of the Bid-Ready Plans; and • made application for required permitting from the Colorado Department of Public Health and Environment and the U.S. Army Corps of Engineers for construction of the Tank Project in accordance with the Bid-Ready Plans; and • completed a public bidding process for construction of the Tank Project in accordance with the Bid-Ready Plans; and • completed required preparations through its bond counsel, including the negotiation and completion of the Pledge Agreement, for financing the construction of the Tank Project in the name of and under the Authority’s credit through the sale of its Tank Project Bonds. WHEREAS, the Authority was unable to award construction contracts for the Tank Project because sufficient funding would not have been available to the Authority from the $500,000 annual Pledge Amount provided for in the Tank Agreement; efforts by the Authority, TCMD, TCLLC and TCRP to reduce the costs were not sufficient to close the funding gap that existed and the Authority’s Board of Directors has now authorized the issuance of a notice of rejection of all Bids received, termination of all preparations for the Authority to issue bonds to finance the Tank Project, and close-out of all contracts and release of all contractors and consultants previously utilized by the Authority for the Engineering & Design Work for the Tank Project; and WHEREAS, TCMD, TCLLC and TCRP have requested that all responsibility for completion of the Tank Project be transferred to them as soon as possible, including finalization of the plans and specifications to construct an alternative Access Road as designed at their request by Marcin Engineering and making such modifications to the facilities to be constructed on the Tank Site as necessary to accommodate the “Realigned Access Road;” funding and /or financing all of the construction costs without any contributions from the other Parties; obtaining all necessary permits for construction of the Tank Project; and contracting for completion of the construction of the Tank Project with contractors that TCMD, TCLLC or TCRP determine are capable of completing the Tank Project by November 1, 2014, subject to approval by the Authority of all final plans and specifications for the Tank Project, specifically including any and all modifications to the Bid-Ready Plans completed by the Authority, inspection and testing of the facilities constructed as determined to be necessary by the Authority, and Final Acceptance of the Tank and improvements on the Tank Site, together with the water main and related utilities and appurtenances necessary to make the Tank operational and functional within the Authority’s regional water distribution system, all in accordance with the Requirements for Final Acceptance set forth in Chapter 10, Appendix C of the Authority’s Rules and Regulations; and {00350790.DOCX /}/ 3} 4 WHEREAS, certain of the Parties, or their predecessors in interest, and the Eagle- Vail Metropolitan District (“EVMD”) entered into a Water Service Agreement, dated May 15, 1997, as amended by First Amendment to Water Service and Tap Fee Allocation Agreement dated June 22, 1999 (collectively, as so amended, the “Service Agreement”), in which Section 5, titled Construction of Water Service Facilities, provided for construction of a water storage tank by TCMD or a predecessor of Master Developer; and WHEREAS, the Parties intend the Tank Agreement and this Addendum to amend Section 2 of the Service Agreement as it provides for the Lease of Water Rights, but not Section 5 of the Tank Agreement; and WHEREAS, as now provided in the Service Agreement, Avon is the successor in interest to the rights, obligations, agreements and benefits of EVMD and, therefore, in accordance with Section 13(c) of the Service Agreement Avon is fully authorized to approve and execute the amendments to the Service Agreement effected by the Tank Agreement and this Addendum such that the approval or consent of EVMD is not required; and WHEREAS, as between the Authority, Avon, TCMD and VMD, the Tank Agreement and this Addendum constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105 and Article XIV, Section 18(2) of the Colorado Constitution and each such governmental or quasi-governmental entity is specifically entitled to seek and be awarded the remedy of specific performance (if allowed by law against any local government that is a Party) of each such governmental or quasi- governmental entity’s obligations arising under this Tank Agreement and Addendum; and WHEREAS, the TCMD, TCLLC and TCRP have undertaken and will undertake certain obligations and certain investments in reliance on the Authority’s commitment to provide water service to and issue taps for development of the Property; and WHEREAS, certain provisions of the Tank Agreement were intended to be legally effective and binding on the Parties as of the Effective Date thereof, while other provisions of the Tank Agreement were intended to be legally effective and binding on the Parties only upon the occurrence of the Implementation Date, which Implementation Date will not now occur. _____________________________________________________________________________ The Parties hereby agree and acknowledge that the following Recitals from the Tank Agreement shall not be effective and shall not be a part of this Addendum or the Tank Agreement after the execution of this Addendum: WHEREAS, TCMD has agreed to pledge and assign certain of its revenues to support the TCMD Bond Resissue and the Pledge Agreement (as such terms are defined in the Tank Agreement); {00350790.DOCX /}/ 3} 5 WHEREAS, VMD has agreed to pledge and assign certain of its revenues to support the TCMD Bond Reissue and the Pledge Agreement (as such terms are defined in the Tank Agreement), and is executing this Tank Agreement for the sole and limited purpose of setting forth its obligations, which are limited to those expressly set forth in this Tank Agreement, and its rights and remedies, which are limited to those expressly set forth in this Tank Agreement; WHEREAS, BNP as a Limited Party has executed this Tank Agreement to affirm BNP’s approval of and consent to TCMD and VMD undertaking and performing their respective obligations as described in Section 9.a of this Tank Agreement regarding the TCMD Bond Reissue and as set forth in the Pledge Agreement and its consent to the Pledge Agreement in the form attached as Exhibit E hereto; WHEREAS, the Developer Affiliates (the “Intended Beneficiaries”) are intended to be express third-party beneficiaries of the Authority’s and Avon’s obligations under this Tank Agreement with rights of direct enforcement of such obligations as more particularly set forth in the Tank Agreement; WHEREAS, implementation of the settlement contemplated in the Term Sheet will require the satisfaction of various mutually dependent conditions, including but not limited to closing of the TCMD Bond Reissue, such that all documents and instruments required to be formally delivered and/or recorded to implement the Term Sheet (except for this Tank Agreement) will be deposited, pursuant to a master escrow agreement (“Escrow Agreement”), into escrow (the “Escrow”) with Stewart Title as Escrow Agent prior to closing of the TCMD Bond Reissue; and WHEREAS, the Escrow Agreement shall generally provide for the deposit of all documents and instruments required to implement the settlement subject to instructions for formal delivery and/or recording on the date when closing of the TCMD Bond Reissue occurs (such date being the “Implementation Date”), or return of all such documents and instruments without formal delivery or recording, such documents and instruments to be void ab initio and of no legal effect if the TCMD Bond Reissue has not occurred by a date certain to be specified in the Escrow Agreement (the “Outside Date”). ______________________________________________________________________________ NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the Parties agree to modify the following provisions of the Tank Agreement as hereinafter stated: 1. Settlement Term Sheet; Effective Date; Implementation Date. The Parties acknowledge and agree that an Implementation Date was never established and that those provisions of the Tank Agreement which have not become operative or legally binding {00350790.DOCX /}/ 3} 6 on the Parties are of no further force and effect, except as hereinafter specifically provided. 2. Service Agreement. From and after the Effective Date of this Addendum, the terms and provisions of the Tank Agreement and this Addendum amend Section 2(b) of the Service Agreement as the terms of Section 2(b) apply to the ownership of the water rights to be used to service the Property. 3. Bid-Ready Plans. (a) TCMD and the Authority executed and delivered the Agreement for Payment of Costs of Water Storage Tank Design, dated March 2, 2012, attached as Exhibit C to Tank Agreement (the “Design Costs Agreement”), together with three (3) Addendums thereto effective on December 20, 2012, January 31, 2013 and March 2, 2013. Pursuant to the Design Costs Agreement and the Addendums thereto and subject to the terms and conditions thereof, TCMD transferred to the Authority the total sum of $ 211,585.00. Using such funds, the Authority contracted for and caused completion of the Bid-Ready Plans. As of July 10, 2013, the Authority had expended all of the funds provided by TCMD in the amount of $ 196,585.00 in accordance with the terms of the Design Costs Agreement, as amended. (b) Pursuant to the terms of the First Addendum, TCMD provided $15,000.00 “to pay costs incurred by the Authority for the engineering of a mechanically stabilized earth retention wall using soil nail techniques (“Additional Improvements”) at the site on which the Storage Tank will be constructed (“Additional Engineering & Design Work”).” This Work was completed by the Authority at a cost of $ 4,294.00 which has been expended by the Authority from the Restricted Account for the purposes described above. The Authority shall retain the remaining $ 10,706.00 which it holds in this Restricted Account to pay a portion of the remaining unpaid expenses for the Engineering and Design Work as incurred by the Authority in the amount of $ 36,831.22. (c) Authority hereby waives all rights, if any, it had under the Tank Agreement to reimbursement for its costs incurred in obtaining completion of the Bid-Ready Plans. (d) TCMD hereby waives all rights it had, if any, under the Tank Agreement to reimbursement for its expenses, specifically including, {00350790.DOCX /}/ 3} 7 but limited to the $ 215,585.00 it advanced for completion of the Bid-Ready Plans. (e) In consideration of and in complete satisfaction of the funds so advanced by TCMD, the Authority shall assign to TCMD or its designee, without any representations or warranty, all of its right, title and interest in the Bid-Ready Plans and any and all work product resulting therefrom. TCMD agrees to re-assign the Bid- Ready Plans to the Authority on January 2, 2016 on the same basis if the Tank Project has not been completed, or if for any reason Construction Acceptance of the Tank by the Authority has not occurred by such date as hereinafter provided. 4. Obligation to Prepare Construction Cost Estimates and to Bid the Tank Project; Contract Award. All Parties hereto acknowledge and agree that the Authority fully satisfied its obligations under the Tank Agreement to obtain a Construction Cost Estimate for the Tank Project based on the Bid-Ready Plans which the Authority completed. All Parties further agree and acknowledge that the Authority, following its normal bidding practices, solicited bids from pre-qualified contractors for the Tank Project in May 2013 and provided TCMD, BNP and the Master Developer the opportunity to review and comment on the bids received in June 2013 as provided in the Tank Agreement. All Parties further agree and acknowledge that it has not been, nor can it be confirmed that the Authority’s Tank Project Bonds to be issued to pay the costs of construction could be serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge Amount, a condition precedent to the Implementation Date and the release of the Pledge Agreement from Escrow. 5. Tank Site, Access Road, Permits and Landscaping. All Parties agree and acknowledge that the Authority made application for the permits required from the Colorado Department of Public Health and Environment and the U.S. Army Corps of Engineers for the construction of the Tank Project, which applications shall either be withdrawn or assigned by the Authority to TCMD, TCLLC or TCRP. Avon’s waiver of financial security for the Tank Project shall not extend or apply to any future water storage tank project which is pursued if the Tank Agreement expires or is terminated without completion of the Storage Tank, nor shall such waiver apply to any additional tanks that may be required to serve higher elevations of the Property. All other terms and provisions of Section 5 of the Tank Agreement are hereby deleted in their entirety and shall be of no further force and effect. 6. Wetlands Mitigation. All terms and provisions of Section 6 of the Tank Agreement are hereby deleted in their entirety and shall be of no further force and effect. 7. Conveyance of Water Rights. Section 2(b) of the Service Agreement provided for the lease by Master Developer’s predecessor to Avon for sublease without {00350790.DOCX /}/ 3} 8 cost to the Authority certain water rights sufficient to replace the consumptive use associated with the development of the Property as ultimately decreed by the Water Court. By the terms of a Water Lease, dated November 4, 2002, certain TCMD water rights (Exhibit 2 thereto), certain historic consumptive use credits dedicated to the plan for augmentation approved in Case No. 97CW306 (Exhibit 3 thereto), and 10.8 acre-feet of Wolford Mountain Reservoir contract water were leased by TCMD to Avon. By the terms of a Water Sublease, dated November 4, 2002, Avon subleased the same water rights to the Authority. In consideration of the undertakings of the Authority pursuant to the Tank Agreement and this Addendum, the following instruments have been or shall be executed and deposited to escrow with Stewart Title Company: (a) TCMD shall assign and convey to Avon by Special Warranty Deed in substantially the form attached hereto as Exhibit D-1, all of its right, title and interest in and to the water rights described therein (collectively, the “Water Rights”), free and clear of all liens and encumbrances, together with all diversion ditches, pipelines, headgates and structures, pumps, casings and other improvements and easements associated or used in connection with the Water Rights as becomes necessary from time to time in order for the Authority to provide municipal water service to the Property (“Appurtenances”), reserving unto TCMD all rights of access and use of the Appurtenances to the extent not required to provide municipal water service for the Property. Prior to the execution of this Special Warranty Deed and its delivery to the Escrow, TCMD provided to the Authority and to Avon a written Title Opinion in a form acceptable to the Authority concerning the Water Rights and Appurtenances conveyed by this Special Warranty Deed which indicated that TCMD owns title to the Water Rights and the land underlying the Appurtenances free and clear of all liens and encumbrances, subject only to the Water Lease dated November 4, 2002, from TCMD to Avon and the Water Sublease dated November 4, 2002, from Avon to the Authority. This written Title Opinion shall be updated prior to the release from Escrow and recording of the Special Warranty Deeds identified in this Section 7 and the recording of the Special Warranty Deeds shall be completed prior to any rescission of the moratorium as provided in Section 8 hereof. The commencement date of the record title search of the Water Rights under the Title Opinion shall be the date of the decree in Division No. 5 Case No. 97CW306 or the date of conveyance of the Water Rights and Appurtenances to TCMD, whichever date is earlier. {00350790.DOCX /}/ 3} 9 (b) Concurrently with the conveyance described in subparagraph 7.a above, Avon shall assign and convey by Special Warranty Deed in substantially the form attached hereto as Exhibit D-2, the Water Rights and Appurtenances to the Authority, subject to a right of reverter to Avon in the event the Authority fails to provide water service to the Property (excepting temporary cessation of water service due to reasonable maintenance requirements or emergency conditions or actions by the Authority as authorized by its Rules and Regulations). (c) TCMD and Master Developer shall, without further action or documentation, be deemed to have waived any ownership interest in the thirty (30) acre-feet of Eagle Park Reservoir water previously obtained by the Authority in its name using funds provided by TCMD. (d) Any obligation to lease water rights to Avon or the Authority under the terms of the Service Agreement, the Water Lease or the Water Sublease shall be considered satisfied in full once the Water Rights and Appurtenances have been conveyed to the Authority as provided herein. This paragraph shall not be construed to relieve TCMD, Master Developer, or any other owner of the Property, or portion thereof, from the obligation to provide additional water rights to serve development on the Property in excess of what is approved by the decree of the District Court in and for Water Division No. 5 in Case No. 97CW306. (e) The Authority shall undertake the ongoing responsibility for any Water Court filings necessary to continue and/or to make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump conditional rights decreed in Case No. 97CW306. TCMD and the Authority shall continue to cooperate with each other in all Water Court matters involving the rights decreed in Case No. 97CW306. The Authority shall file any application necessary to maintain and/or make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump. In the sole and absolute discretion of the Authority, the Authority may require TCMD to file as a co-applicant. (f) In connection with the development of the Property, the Parties acknowledge that the Appurtenances may need to be modified, piped, buried or otherwise improved at TCMD’s or Master Developer’s sole cost and discretion. The instruments effecting the foregoing assignment and conveyance of the Water Rights and Appurtenances (the “Water Instruments”) shall be recorded by the {00350790.DOCX /}/ 3} 10 Escrow Agent not later than ten (10) days after the Effective Date of this Addendum. 8. Moratorium. For a number of years the Authority has imposed a moratorium upon further water service within the Property. From and after recording and delivery from the Escrow of the recorded Water Instruments and delivery to the Authority of copies of the executed Special Warranty Deed to the Tank Site and the Easement Agreement to be held in Escrow pending completion of the Tank and Construction Acceptance by the Authority: (a) the moratorium shall be rescinded by Resolution adopted by the Board of Directors of the Authority, effective upon delivery to Escrow of fully executed construction contracts, Performance and Payment Bonds in amounts equal to the contract amount, for each contractor for the Tank Project between TCMD and/or TCLLC or TCRP and each contractor, together with a deposit to the Escrow in the amount of $ < TBD > , (“Escrow Amount”), or such other amount as is fully sufficient to pay 100% of the costs of construction of the Tank, the MSE retaining walls on the Tank Site and all of the costs for materials and installation of the water main to the Storage Tank, properly connected to the Authority’s water distribution system, tested and made operational; and (b) as Escrow Agent for the Parties to this Tank Agreement and Addendum, Stewart Title Company (“Escrow Agent”) is hereby instructed to open an account in the name of the Escrow Agent in a regulated financial institution with its home office in the United States of America as selected by the Escrow Agent to which the full Escrow Amount shall be transferred and deposited by or for TCLLC or TCRP (“Escrow Account) under the sole control of the Escrow Agent; and Escrow Agent is hereby authorized to make all cash disbursements therefrom by checks drawn by the Escrow Agent sufficient to make all disbursements for progress payments and final payments to any contractor or subcontractor for TCMD, TCLLC or TCRP for work performed that has been inspected and approved by the Authority and approved for payment by Marcin Engineering; if any change orders are approved or cost increases occur which increase the amount of the payments required in excess of the Escrow Amount, TCMD, TCCLC or TCRP shall transfer and deposit to the Escrow Account funds sufficient for the Escrow Agent to make all progress and final payments for the work on the Tank Site and the water main serving the Tank; or {00350790.DOCX /}/ 3} 11 (c) in the alternative, TCMD, TCLLC or TCRP may provide, in lieu of a deposit to the Escrow Account, an irrevocable letter of credit (“ILOC”) from a US financial institution with an office or offices in Colorado in an amount equal to the Escrow Amount provided above which authorizes the Escrow Agent as the named beneficiary of the ILOC, in its sole and absolute discretion, authority to draw upon the ILOC in such amounts as are necessary to make all progress and final payments for the work on the Tank Site and the water main serving the Tank; the expiration date for any ILOC so provided shall not be earlier than January 5, 2016; and (d) the Authority is hereby fully released from any and all obligations it had under the Tank Agreement to construct the Storage Tank, to issue Tank Project Bonds and to give Notice to Proceed to any contractor or contractors; all other provisions of Section 8.b.i of the Tank Agreement are hereby deleted in their entirety and shall be of no further force and effect; and (e) the Authority shall provide potable water service to the Property, subject to the terms of the decree of the District Court in and for Water Division No. 5, Case No. 97CW306, up to a maximum of 106.3 consumptive acre feet per year, and further subject to the improvements to be constructed, or improvements previously constructed, within the area of the Property physically capable of being served by the Storage Tank (at elevations one-hundred-forty (140) feet below the base of the Storage Tank, or above such elevation upon construction of additional pumping and/or tank storage capacity above such elevation); and (f) the Authority shall issue taps for potable water service as described in subparagraph 8.e above upon payment of any applicable fees, compliance with generally applicable engineering/technical requirements for connection to the Authority’s water distribution system and compliance with the conditions for service as set forth in the Authority’s Rules and Regulations; and (g) any development within the Property located at an elevation higher than the property that can be served by the Storage Tank shall require additional treated water storage to be constructed by someone other than the Authority or Avon at elevations higher than the Storage Tank elevation if such development is to be served by the Authority; and {00350790.DOCX /}/ 3} 12 (h) the Authority’s commitment to provide potable water service pursuant to the terms of the decree in Case No. 97CW306 up to 106.3 consumptive acre feet per year and to issue taps therefore as set forth herein shall inure to the benefit of TCMD; and (i) as of the Effective Date of this Addendum, an SFE is equivalent to 714 gallons of treated water storage and if TCMD wants the Authority to provide water service to more than 2,800 SFEs, TCMD shall provide additional treated water storage; or, if water service is proposed to development located above the service area of the Storage Tank, TCMD shall be required to construct and dedicate an additional water storage tank or tanks to the Authority; however, this provision shall not be construed to imply that the decree in Case No. 97CW306 permits service to approximately 2,800 SFEs, and shall not modify the provisions of subparagraph 8.j set forth below; and (j) if any Party wants the Authority to provide service in excess of what is authorized by the decree in Case No. 97CW306, the Party first needs to provide additional water rights and pay all costs incurred by the Authority to adjudicate the necessary water rights to provide the increased level of service; and (k) if TCMD and/or the Developer Affiliates fail to deliver a completed Tank, pipeline and all necessary appurtenances for an operational water storage tank for “Construction Acceptance” and operation by the Authority on or before June 30, 2015, the Authority may either extend the deadline for Construction Acceptance by the Authority if it is satisfied that reasonable progress has been and is being made in correcting any deficiencies that have been identified by the Authority, or, not earlier than December 31, 2015, the Authority reserves the right to reinstate the moratorium until Construction Acceptance of the Tank and all related facilities by the Authority is completed; and (l) each Party and Limited Party shall have direct rights to enforce the terms and conditions of Section 8 of this Addendum. 9. Public Financing of the Tank Project. All of the terms and provisions of Section 9 are hereby deleted in their entirety and shall be of no further force and effect. 10. Other Consideration. (a) Upon complete execution and delivery of this Addendum to the Escrow Agent, and without the requirement of any further action, the {00350790.DOCX /}/ 3} 13 Authority shall be deemed to have irrevocably released TCMD from any obligation to pay the sum of $20,387.22 due for the remainder of the Authority’s professional fees incurred in adjudicating a plan for augmentation and exchange to allow the Authority to use 10.8 acre- feet of storage in Wolford Mountain and Ruedi Reservoirs acquired from the Traer Creek entities. (b) The amount presently due to the Authority from TCMD pursuant to the Agreement dated November 4, 2002 ($124,728.64 after application of the payment due on September 16, 2012), shall continue to be paid by TCMD in the form of annual payments to the Authority due on September 16th of each year in the amount of $11,880.24, including interest at the rate of 5.45% per annum through September 16, 2028, or until the full amount of this obligation is satisfied in full. The Authority hereby agrees no other professional fees are owed to it by TCMD, VMD or Master Developer and the Authority hereby expressly releases any other such claims for fees through the Effective Date of this Addendum. 11. Construction of the Storage Tank; Conveyance of the Tank Site; Easement Agreement. The Storage Tank shall be financed and constructed solely by TCMD or TCLLC or TCRP or the Developer Affiliates, as they may determine. None of the other Parties to this Addendum shall have any financial responsibility for the costs of construction or financing of the Storage Tank Project. Upon completion and Construction Acceptance of the Storage Tank by the Authority, the Storage Tank shall be operated by the Authority on the Tank Site. The Tank Site shall be conveyed to the Authority by TCRP by Special Warranty Deed in substantially the form attached hereto as Exhibit B, free and clear of all monetary liens and other encumbrances (the “Tank Site Deed”) which shall include all areas required for ingress and egress, maintenance, repairs or replacement of facilities, retaining walls, slope maintenance and snow storage and otherwise meeting the minimum requirements of the Avon Municipal Code. TCRP states that it has submitted and obtained approval of the Final Plat for the Tank Site from Avon as a minor subdivision and the Final Plat shall be delivered to and recorded by the Escrow Agent upon execution of this Addendum. Accordingly: (a) TCRP shall execute and deliver the Tank Site Deed to Stewart Title as Escrow Agent, together with a Request for Partial Release of Deed of Trust from Laramie Participations, Inc., the original Promissory Note and the original Deed of Trust recorded June 1, 2009 at Reception No. 200910538; the Request for Partial Release of Deed of Trust shall be submitted immediately to the Public Trustee by the Escrow Agent with the Promissory Note and original Deed of Trust for processing and recording by the Public Trustee; the Tank {00350790.DOCX /}/ 3} 14 Site Deed shall be recorded by the Escrow Agent upon Construction Acceptance of the Tank and Tank Site by the Authority. (b) TCRP and the Authority shall execute and deliver to the Escrow Agent the Easement Agreement in substantially the form attached hereto as Exhibit F, granting a non-exclusive easement to the Authority for use of the Realigned Access Road to be constructed by TCMD, or TCLLC or TCRP or the Developer Affiliates as described therein for ingress and egress to the Tank Site; the Easement Agreement shall be recorded by the Escrow Agent upon Construction Acceptance of the Tank and Tank Site by the Authority. (c) TCRP shall grant to the Authority at no cost to the Authority, such non-exclusive easements as may reasonably be required within the Access Road alignment and right-of-way or elsewhere on the Property, or which are otherwise specifically described in Exhibit F, to connect the Storage Tank to existing water lines and electric lines at locations anywhere on the Property to be mutually agreed upon by TCRP and the Authority in the Easement Agreement, Exhibit F, including any pumping station and facilities reasonably necessary to the operations of the Storage Tank. 12. Construction and Ownership of Storage Tank. TCMD or TCLLC or TCRP agree to commence construction of the Tank Project as soon as possible after the Effective Date of this Addendum, but in no event later than November 1, 2013. The Authority reserves to itself all rights to inspect and approve the construction of the Tank Project and to retain experts to monitor the construction of the Storage Tank in accordance with its customary practices and its Rules and Regulations, including, but not limited to Appendix C thereto, for the construction of infrastructure for its regional water distribution system, including the right to reject work which does not meet the requirements of the plans and specification or to require corrections to the Work. TCMD, TCLLC and TCRP agree to construct the Storage Tank and the MSE walls on the Tank Site in specific accordance with the Bid-Ready Plans completed by the Authority, including any modifications to the Bid-Ready Plans that are submitted to and approved by the Authority in advance of construction. TCMD, TCLLC and TCRP agree that before executing any construction contract for the valve vault and the pipeline to the Tank Site, the plans and specifications for that Work and any other variances from the Bid-Ready Plans shall be presented to the Authority for review and approval or for any modifications to the plans and specifications as requested by the Authority in its sole and absolute discretion. Upon completion of the Tank Project and all required testing, TCMD, TCLLC or TCRP Affiliates shall present for Construction Acceptance by the Authority, all of the work and improvements completed on the Tank Site, together with {00350790.DOCX /}/ 3} 15 the pipeline and all other appurtenances as required to make the Storage Tank operational, including a two-year warranty from the contractors for such facilities commencing on the date of Construction Acceptance of such facilities by the Authority. The Authority reserves all rights to inspect the Storage Tank, the MSE Walls, the valve vault and the pipeline prior to acceptance, including any requirements for inspection and testing by third parties, and to reject any portions of the Work which fail to meet the requirements of the plans and specifications as finally approved by the Authority. The assignment and conveyance of the improvements to the Tank Site and the pipeline shall include all permits required and obtained from the Colorado Department of Public Health and the Environment, the U.S. Army Corps of Engineers for the Tank Site and the Town of Avon. Once these facilities have been accepted, the Authority shall own the Storage Tank and all capacity therein for treated water storage and shall provide all operation and maintenance services for the Storage Tank and the Tank Site at its sole cost and expense. The Parties acknowledge that the Tank Project anticipates and has been designed to accommodate and connect to future water storage tank(s) to be located uphill from the Storage Tank. The Authority shall have absolutely no responsibility for the design, construction, financing, oversight or approval of the construction of the Realigned Access Road as now proposed by TCMD and the Developer Affiliates, except as that design and construction may impact the location of the permanent easement required to be granted to the Authority for the installation, construction, maintenance, repair and replacement of the water main serving the Tank and as that water main may be installed. 13. Prior Agreements Not Fully Superseded; No Cross-Defaults. Except to the extent that Section 2(b) of the Service Agreement is amended and/or superseded by the express terms of the Tank Agreement and this Addendum, the Service Agreement and any other agreement referenced in this Tank Agreement that was executed prior to the Effective Date of this Addendum (“Prior Agreement(s)”) shall continue in effect in accordance with such agreements’ terms, and the parties thereto shall maintain all of their rights, duties and obligations set forth therein. Notwithstanding the foregoing, and notwithstanding anything to the contrary in any Prior Agreement, no default under this Tank Agreement and Addendum shall be construed to be a default under any Prior Agreement and no default under any Prior Agreement shall be construed to be a default under the Tank Agreement and this Addendum. 14. Default; Remedies; Rights of Limited Parties and Intended Beneficiaries. (a) Default of a Party. A default by a Party is a failure by such Party to fully perform any of its duties and obligations set forth in the Tank Agreement and this Addendum. (b) Cure Period. Default will not occur until a non-defaulting Party provides the defaulting Party thirty (30) days written notice describing the default, and the defaulting Party is given the opportunity during such time to cure the default. {00350790.DOCX /}/ 3} 16 (c) Remedies. (i) Parties and Limited Parties. Upon the occurrence and continuance of an uncured default, any non-defaulting Party and/or any non-defaulting Limited Party shall, except to the extent limited by an express provision of the Tank Agreement or this Addendum, be entitled to enforce the provisions and any remedy provided in the Tank Agreement or this Addendum at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance (if allowed by law against any local government that is a Party) or damages or a combination thereof may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance (if allowed by law against any local government that is a Party or Limited Party) of the defaulting Party’s or Limited Party’s obligations and/or damages. All of the remedies permitted or available under the Tank Agreement or this Addendum, at law, by statute or in equity shall be cumulative and not in the alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. Additionally, in consideration of the Tank Agreement and this Addendum constituting an inter- governmental agreement by and among Avon, the Authority, TCMD and VMD, each such governmental or quasi-governmental entity expressly affirms its intent that the obligations of each such governmental or quasi-governmental entity are to be enforced in accordance with their terms. (ii) Intended Beneficiaries. (1) The Developer Affiliates shall have the right to enforce the Authority’s obligations pursuant to Section 8 of this Addendum, together with the right to enforce any right of Master Developer and pursue any remedy available to Master Developer in the event of a default by another Party. (2) Except with respect to those expressly stated rights the Intended Beneficiaries have under the Tank Agreement or this Addendum, no Developer Affiliate, except TCLLC and TCRP, is subject to any obligation nor has it acquired any enforcement right or remedy arising solely under the Tank Agreement and this Addendum. 15. Assignment. Any Party may assign its rights, duties and obligations under the Tank Agreement and this Addendum upon the prior written consent of the other Parties and the Limited Parties, such consent not to be unreasonably withheld, conditioned or delayed. In addition, the assignor shall provide the other Parties and Limited Parties with copies of all relevant documentation of such assignment. 16. No Waiver; Governmental Immunity; Annual Appropriation. Any Party’s or Limited Party’s waiver of, or failure to pursue any available remedy for, a breach of {00350790.DOCX /}/ 3} 17 any term or provision of the Tank Agreement or this Addendum shall not operate or be construed as a waiver of any subsequent breach by any Party or Limited Party. Additionally, and notwithstanding any provision of the Tank Agreement or this Addendum to the contrary, no term or condition of the Tank Agreement or this Addendum shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to TCMD, VMD, the Authority or Avon under the Colorado Governmental Immunity Act, §§ 24-10-101 et seq., C.R.S. The obligations of the Authority and Avon hereunder are subject to the annual appropriation of funds necessary for the performance thereof, which appropriations shall be made in the sole discretion of the Authority’s Board of Directors or the Avon Town Council as applicable. 17. Amendment; Modification. The Tank Agreement and this Addendum may be modified only by the signed, written agreement of the Parties or their respective agents, successors and assigns. The prior written consent of the Limited Parties shall not be required except to the extent the proposed modification directly and expressly affects a right or obligation of the Limited Parties, and such consent shall not be unreasonably withheld, conditioned or delayed. Additionally, the Parties and the Limited Parties acknowledge that the TCMD Bond Reissue documentation is anticipated to preclude TCMD and/or VMD from entering into any modification of the Tank Agreement or this Addendum without the prior written consent of BNP, which consent BNP shall not unreasonably withhold, condition or delay. 18. Further Cooperation. The Parties and Limited Parties shall reasonably cooperate with one another to effectuate the intent of the Parties and Limited Parties as described herein, including without limitation, executing any and all further instruments and documents, and doing and performing such further and additional acts and things necessary or proper to effectuate or further evidence the terms and provisions of the Tank Agreement and this Addendum. 19. Proper Authority. The Parties and the Limited Parties represent and warrant that they have full right and capacity to enter into the Tank Agreement and this Addendum and have taken any and all actions required and have any and all necessary approvals to enter into the Tank Agreement and this Addendum. 20. Attorneys’ Fees. The prevailing Party or Limited Party in any action concerning the enforcement or interpretation of the Tank Agreement and this Addendum shall be awarded, in addition to any damages or other form of relief awarded, all reasonable costs incurred in connection therewith, including attorneys’ fees and costs through all appeals. 21. Governing Law. The Tank Agreement and this Addendum shall be governed by and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce the Tank Agreement or arising out of the Tank Agreement and {00350790.DOCX /}/ 3} 18 this Addendum shall be brought in the State of Colorado, Eagle County District Court, as the exclusive venue and forum. 22. Severability. If any term, provision, covenant or condition of the Tank Agreement or this Addendum is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of the Tank Agreement as modified by this Addendum shall, unless amended or modified as provided in Section 17 above, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Parties against whom they are being enforced of a material benefit of the bargain under the Tank Agreement and this Addendum or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. 23. Entire Agreement. The Tank Agreement as modified by this Addendum shall be construed to constitute the entire agreement between the Parties and Limited Parties with respect to the matters set forth herein and to supersede all previous oral or written communications, representations, understandings, undertakings, or agreements between the Parties and Limited Parties. 24. Counterpart Execution. This Addendum may be signed in multiple counterparts, with facsimile signatures permitted, and each counterpart when taken with the other executed counterpart shall constitute a binding agreement among the Parties and the Limited Parties as of the Effective Date (with respect to those provisions that are effective as of the Effective Date). 25. Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under the Tank Agreement and this Addendum shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, three (3) business days after mailed. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): {00350790.DOCX /}/ 3} 19 To the Authority: Upper Eagle Regional Water Authority 846 Forest Road Vail, CO 81657 Attention: General Manager Telephone: (970) 477-5444 Email: lbrooks@erwsd.org With a required copy to: Collins, Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 Attn: Jim Collins Telephone: (303) 986-1551 Email: jcollins@cccfirm.com To Avon : Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748-4452 Email: vegger@avon.org With a required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attn: Town Attorney To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com {00350790.DOCX /}/ 3} 20 With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To Traer Creek-RP LLC: c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To the Limited Parties: {00350790.DOCX /}/ 3} 21 The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com BNP Paribas Value Preservation Group 787 Seventh Avenue, 9th Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: (212) 841-3607 Email: Barbara.eppolito@bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Attn: Brandee Caswell Telephone: (303) 607-3826 Email: Brandee.caswell@faegrebd.com To the Intended Beneficiaries: Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] 26. Escrow; Escrow Instructions. Except as necessary for Exhibits B, D-1, D-2 and E to the Tank Agreement and this Addendum, all of the terms and provisions of Section 26 are hereby deleted in their entirety and shall be of no further force and effect. {00350790.DOCX /}/ 3} 22 27. Rights Upon Occurrence of Outside Date. All of the terms and provisions of Section 27 are hereby deleted in their entirety and shall be of no further force and effect. 28. In all other respects, the Parties ratify and affirm all of the terms and provisions of the Tank Agreement, as the same are modified by this Addendum. [ Signature Pages Follow ] {00350790.DOCX /}/ 3} 23 This Addendum is entered into and effective as of September __, 2013. PARTIES: THE AUTHORITY: THE UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: AVON: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President Attest: Secretary {00350790.DOCX /}/ 3} 24 MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company By: Name: __________ Lindholm Title: Manager TCRP: TRAER CREEK-RP LLC, a Colorado limited liability company By: TRAER CREEK LLC, a Colorado limited liability company, its Manager By: Name: _______ Lindholm Title: Manager {00350790.DOCX /}/ 3} 25 LIMITED PARTIES: VMD: THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President Attest: ____________________________________ Secretary BNP: BNP PARIBAS, a financial institution organized under the laws of the Republic of France By: _________________________ Name: _______________________ Title: ________________________ By: _________________________ Name: _______________________ Title: ________________________ {00350790.DOCX /}/ 3} Exhibit A Legal Description of the Property [Source: Exhibit A to Service Agreement, May 15, 1997] {00350790.DOCX /}/ 3} {00350790.DOCX /}/ 3} {00350790.DOCX /}/ 3} {00350790.DOCX /}/ 3} D-1 Exhibit B Special Warranty Deed to the Tank Site {00350790.DOCX /}/ 3} D-2 {00350790.DOCX /}/ 3} D-3 {00350790.DOCX /}/ 3} D-4 Exhibit D-1 Special Warranty Deed TCMD to Avon {00350790.DOCX /}/ 3} D-5 {00350790.DOCX /}/ 3} D-6 {00350790.DOCX /}/ 3} D-7 {00350790.DOCX /}/ 3} D-8 {00350790.DOCX /}/ 3} D-9 {00350790.DOCX /}/ 3} D-10 {00350790.DOCX /}/ 3} D-11 {00350790.DOCX /}/ 3} D-12 Exhibit D-2 Special Warranty Deed Avon to Authority {00350790.DOCX /}/ 3} D-13 {00350790.DOCX /}/ 3} D-14 {00350790.DOCX /}/ 3} D-15 {00350790.DOCX /}/ 3} D-16 {00350790.DOCX /}/ 3} D-17 {00350790.DOCX /}/ 3} D-18 {00350790.DOCX /}/ 3} D-19 {00350790.DOCX /}/ 3} Exhibit F Easement Agreement {00350790.DOCX /}/ 3} 21 {00268750.DOC / 9} 1 TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT THIS TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT (“Tank Agreement”) is made and entered into as of this ____ day of __________, 201__ (“Effective Date”), by and among the following entities (collectively, the “Parties”): the UPPER EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the State of Colorado (the “Authority”); the TOWN OF AVON, a home rule municipal corporation o f the State of Colorado (“Avon”); the TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”); TRAER CREEK LLC, a Colorado limited liability company (“TCLLC”); TRAER CREEK-RP LLC, a Colorado limited liability company (“TCRP”); and only for those limited purposes expressly set forth below, BNP PARIBAS, a financial institution organized under the laws of the Republic of France (“BNP”) and The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“VMD”) (together, BNP and VMD may be referred to as a “Limited Party” or the “Limited Parties”). RECITALS This Tank Agreement is made with respect to the following facts: WHEREAS, Avon, TCMD, Master Developer (defined below) and other entities were parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County District Court), and have entered into that certain Settlement Term Sheet dated October 7, 2011 (the “Term Sheet”), to resolve various disputes at issue in the litigation; and WHEREAS, Section 3 of the Term Sheet includes provisions regarding financing and constructing the Tank Project (defined below) within The Village (at Avon) real estate development (the “Property”), the legal description of which is attached hereto as Exhibit A; and WHEREAS, except for certain smaller parcels owned by third parties (as such interests appear of record as of the Effective Date), fee ownership of the bulk of the Property is held by TCRP, EMD Limited Liability Company (“EMD”), Traer Creek Plaza LLC, Traer Creek-HD LLC and Traer Creek-WM LLC (collectively, together with any other entity with respect to {00268750.DOC / 9} 2 which TCLLC is the managing member and which acquires title to any portion of the Property after the Effective Date, the “Developer Affiliates”); and WHEREAS, for ease of administration and in recognition of the fact that ownership of the Property has and will continue to become diverse as further development occurs, the Developer Affiliates have designated TCLLC to act on its and their behalf for all purposes in connection with this Tank Agreement, including but not limited to negotiation and execution of this Tank Agreement and any future amendments hereto (in such capacity, TCLLC being “Master Developer”); and WHEREAS, TCRP is the fee owner of the bulk of the undeveloped portion of the Property, including that portion of the Property legally described as Tract J, THE VILLAGE (at AVON) FILING 4 according to the plat recorded December ___, 2012, at Reception No. _____, COUNTY OF EAGLE, STATE OF COLORADO (the “Tank Site”) upon which the Tank Project is to be constructed and operated; and WHEREAS, due to certain regulatory changes and changed circumstances, the plans and specifications completed to date by the Developer Affiliates and TCMD (the “2005 Plans”) require certain updates and modifications in order to be ready for bidding and construction; and WHEREAS, TCMD has agreed to contribute toward the costs of updating the 2005 Plans to be completed in accordance with the terms and conditions of this Tank Agreement (as updated, the “Bid-Ready Plans”); and WHEREAS, the Bid-Ready Plans will incorporate all design, engineering and construction drawing criteria required to bid and construct the following improvements as depicted, described and/or specified in the Bid-Ready Plans (collectively, the “Tank Project”): i a 2.0 million gallon treated water storage tank, together with related site grading, retaining walls and similar site improvements (collectively, the “Storage Tank”); and i a year-round all-weather road between the Storage Tank site and the nearest dedicated public road which shall provide year-round all-weather access to the Storage Tank site, portions of which are intended to provide general public access after it is dedicated to Avon and portions of which are intended to be restricted from general public use (the “Access Road”); and i those water lines, electric lines and other utilities required to be installed and connected to provide service to the Tank Site and to connect the Storage Tank to existing water lines, electrical lines and related utilities. WHEREAS, the Authority has agreed to undertake and perform the following services in accordance with the terms and conditions of this Tank Agreement: i coordinating preparation of t he Bid-Ready Plans; and {00268750.DOC / 9} 3 i securing all required permitting for construction of the Tank Project in accordance with the Bid-Ready Plans; and i contracting for construction of the Tank Project in accordance with the Bid-Ready Plans; and i financing the construction of the Tank Project in the name of and under the Authority’s credit through the sale of its Tank Project Bonds (as defined in Section 9.b below); and i providing construction management services for the Tank Project; and i making the Storage Tank an operational facility; and i all ongoing operations and maintenance of the Storage Tank and that portion of the Access Road which is within or provides the Authority with private access to the Tank Site and which is not intended t o be or has not been dedicated to and accepted by Avon. WHEREAS, certain of the Parties, or their predecessors in interest, and the Eagle-Vail Metropolitan District (“EVMD”) entered into a Water Service Agreement, dated May 15, 1997, as amended by First Amendment to Water Service and Tap Fee Allocation Agreement dated June 22, 1999 (collectively, as so amended, the “Service Agreement”), in which Section 5, titled Construction o f Water Service Facilities, provided for construction of a water storage tank by TCMD or a predecessor of Master Developer; and WHEREAS, the Parties intend this Tank Agreement to amend Section 2 o f the Service Agreement as it provides for the Lease of Water Rights and Section 5 of the Service Agreement as it provides for construction of the Storage Tank; and WHEREAS, as now provided in the Service Agreement, Avon is the successor in interest to the rights, obligations, agreements and benefits of EVMD and, therefore, in accordance with Section 13(c) of the Service Agreement Avon is fully authorized to approve and execute the amendments to the Service Agreement effected by this Tank Agreement such that the approval or consent of EVMD is not required; and WHEREAS, TCMD has agreed to pledge and assign certain of its revenues to support the TCMD Bond Resissue and the Pledge Agreement (as such terms are defined in Section 9.a below); and WHEREAS, VMD has agreed to pledge and assign certain of its revenues to support the TCMD Bond Reissue and the Pledge Agreement (as such terms are defined in Section 9.a below), and is executing this Tank Agreement for the sole and limited purpose of setting forth its obligations, which are limited to those expressly set forth in Section 9.a of this Tank Agreement, and its rights and remedies, which are limited to those expressly set forth in Sections 8, 9, 10.b and 14 of this Tank Agreement; and {00268750.DOC / 9} 4 WHEREAS, as between the Authority, Avon, TCMD and VMD, this Tank Agreement constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105 and Article XIV, Section 18(2) of the Colorado Constitution and each such governmental or quasi- governmental entity is specifically entitled to seek and be awarded the remedy of specific performance (if allowed by law against any local government that is a Party) of each such governmental or quasi-governmental entity’s obligations arising under this Tank Agreement; and WHEREAS, the Developer Affiliates have undertaken and will undertake certain obligations and certain investments in reliance on the Authority’s commitment to provide water service to and issue taps for development of the Property; and WHEREAS, BNP as a Limited Party has executed this Tank Agreement to affirm BNP’s approval of and consent to TCMD and VMD undertaking and performing their respective obligations as described in Section 9.a of this Tank Agreement regarding the TCMD Bond Reissue and as set forth in the Pledge Agreement and its consent to the Pledge Agreement in the form attached as Exhibit E hereto; and WHEREAS, the Developer Affiliates (the “Intended Beneficiaries”) are intended to be express third-party beneficiaries of the Authority’s and Avon’s obligations under this Tank Agreement with rights of direct enforcement of such obligations as more particularly set forth in Section 14 of this Tank Agreement; and WHEREAS, implementation of the settlement contemplated in the Term Sheet will require the satisfaction of various mutually dependant conditions, including but not limited to closing o f the TCMD Bond Reissue, such that all documents and instruments required to be formally delivered and/or recorded to implement the Term Sheet (except for this Tank Agreement) will be deposited, pursuant to a master escrow agreement (“Escrow Agreement”), into escrow (the “Escrow”) with Stewart Title as Escrow Agent prior to closing of the TCMD Bond Reissue; and WHEREAS, the Escrow Agreement shall generally provide for the deposit of all documents and instruments required to implement the settlement subject to instructions for formal delivery and/or recording on the date when closing of the TCMD Bond Reissue occurs (such date being the “Implementation Date”), or return of all such documents and instruments without formal delivery or recording, such documents and instruments to be void ab initio and o f no legal effect if the TCMD Bond Reissue has not occurred by a date certain to be specified in the Escrow Agreement (the “Outside Date”); and WHEREAS, certain of the Parties’ obligations are to be performed prior to the Implementation Date and other of the Parties’ obligations are to be performed after the Implementation Date such that certain provisions of this Tank Agreement are intended to be legally effective and binding on the Parties as of the Effective Date while other provisions o f this Tank Agreement are intended to be legally effective and binding on the Parties only upon the occurrence of the Implementation Date. {00268750.DOC / 9} 5 NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, t he Parties agree as follows: AGREEMENT TERMS 1. Settlement Term Sheet; Effective Date; Implementation Date. The terms and provisions of this Tank Agreement are intended to implement, and as of the Implementation Date shall be deemed to have implemented, the terms of Section 3 of the Term Sheet. Certain rights, obligations, waivers and releases of the Parties to this Tank Agreement are described as arising with reference to the Effective Date and/or by their terms are necessarily to be performed prior to the Implementation Date in order to enable the Implementation Date to occur. Such matters attach, are operative and are legally binding on the Parties as of the Effective Date. Certain rights, obligations, waivers and releases of the Parties to this Tank Agreement are described as arising with reference to the Implementation Date and/or by their terms are necessarily capable of being performed only from and after the Implementation Date. Such matters shall be deemed to have attached, become operative and legally binding on the Parties only upon the occurrence of, and shall be of no force or effect prior to, the Implementation Date. Accordingly, this Tank Agreement shall not be required to be deposited into the Escrow, although the executed Pledge Agreement shall be required to be deposited into the Escrow as provided in Section 9.a below. 2. Service Agreement. From and after the Implementation Date, the terms and provisions of this Tank Agreement amend the following terms of the Service Agreement: a. Section 2(b) as the terms of Section 2(b) apply to the ownership of the water rights to be used to service the Property; and b. Section 5 as it provides for construction of the Storage Tank. 3. Bid-Ready Plans. a. Prior to the Effective Date, TCMD and the Authority executed and delivered the Agreement for Payment of Costs of Water Storage Tank Design attached as Exhibit C hereto and incorporated herein by this reference (the “Design Costs Agreement”). Pursuant to the Design Costs Agreement and subject to the terms and conditions thereof, TCMD has transferred to the Authority the sum o f $66,585.00. The Authority shall have the obligation to contract for and cause completion of the Bid-Ready Plans, and the Authority shall be responsible for payment of any costs thereof that exceed $66,585.00 at such time as this Tank Agreement is fully executed and delivered to the Authority. To the extent such expenses can be incorporated into the Tank Project Bonds without exceeding the Annual Debt Service Pledge Amount (as defined in Section 9.a.i below) the Authority shall first be entitled to reimbursement for its costs incurred in obtaining completion of the Bid-Ready Plans pursuant to Section 9.b below. Thereafter, to the extent such expenses can be incorporated into the Tank Project Bonds without exceeding the Annual Debt Service Pledge Amount (as defined in Section 9.a.i below), TCMD shall be entitled to reimbursement for its expenses up {00268750.DOC / 9} 6 to $66,585.00 incurred in obtaining completion of the Bid-Ready Plans pursuant to Section 9.b below. b. As soon as practicable after the Effective Date, the Authority shall secure completion o f the Bid-Ready Plans by causing updates to the 2005 Plans to be completed, and shall cause delivery of such completed Bid-Ready Plans to BNP, TCMD and Master Developer. c. Upon the earlier to occur of commencement of construction of the Tank Project or the date on which closing of the Tank Project Bonds occurs, Master Developer and TCMD shall assign to the Authority, without any representation or warranty, all o f their right, title and interest in and to the Bid-Ready Plans and any and all work product resulting therefrom. 4. Obligation to Prepare Construction Cost Estimates and to Bid the Tank Project; Contract Award. After completion and delivery of the Bid-Ready Plans as provided in Section 3 above, which shall include construction cost estimates for the Tank Project based on the Bid- Ready Plans, the Authority may thereafter, in its sole and absolute discretion, solicit bids on the Tank Project. The Authority shall follow its normal bidding practices or may utilize an “integrated project delivery” (Design/Build) process for all or portions of the Tank Project as is customary for the Authority. Prior to awarding any contracts with respect to the Tank Project, the Implementation Date shall have occurred and the Authority shall provide to TCMD, BNP and Master Developer at least ten (10) business days to review and comment upon all bid proposals. The Authority shall be solely responsible for contracting for the construction of the Tank Project and shall not be required to secure the approval of any other Party of the bid or the contract(s) for the Tank Project. TCMD, BNP and Master Developer shall determine to their satisfaction and then confirm in writing to the Authority that the Tank Project Bonds can be serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge Amount (as defined in Sect ion 9.a.i below). In furtherance of Section 9.b, the Authority shall provide written notice to BNP and TCMD that it is satisfied the Tank Project Bonds can be serviced without exceeding the $500,000 per year maximum Annual Debt Service Pledge Amount (as defined in Section 9.a.i below) as a condition precedent to the Implementation Date and the release of the Pledge Agreement from Escrow. In making the foregoing determination, all “Mandatory Costs” (as defined in Section 9.b below) shall be incorporated, together with such “Discretionary Costs” (as defined in Section 9.b below), if any, determined pursuant to Sections 3 and 9.b to be desirable and capable of being financed through the Tank Project Bonds. 5. Tank Site, Access Road, Permits and Landscaping. From and after the Effective Date, the Authority shall be solely responsible for securing all permits for the construction of the Tank Project, except any 1041 Permit Avon chooses to require or to issue, including any permit required by the Colorado Department of Public Health and Environment (including without limitation any and all stormwater discharge permits), and shall have access to any information previously provided to permitting authorities by TCMD or Master Developer. The Authority shall not be required to include a 1041 Permit in the scope of work for any contract for any Engineering & Design Work for the Tank Project. No new or additional studies shall be required by Avon for the Tank Project. Avon also shall waive all fees, including review fees, for any and {00268750.DOC / 9} 7 all permits it may require for the Tank Project. Avon shall permit the Authority to construct the Tank Project on the Tank Site and shall not require a subdivision improvement agreement with respect to the Tank Project. Avon shall not require the posting of any collateral, bond or other form of assurance of completion with respect to the Tank Project, other than this Tank Agreement. Avon’s waiver of financial security for the Tank Project shall not extend or apply to any future water storage tank project which is pursued if this Tank Agreement expires or is terminated without completion of the Storage Tank, nor shall such waiver apply to any additional tanks that may be required to serve higher elevations of the Property. If portions of the Access Road are improved as a public road, such portions shall be dedicated to Avon and accepted by Avon for maintenance immediately following completion o f the same to Avon’s standards for dedication of a public street then in effect, but neither the Authority nor Avon shall have any responsibility to improve the Access Road to such standards. The Authority shall have no further responsibility for the physical condition of the Access Road after two (2) years from the date the Authority accepts the Tank Project after the completion of construction. Pending dedication to and acceptance by Avon of the Access Road, the owner or owners of the property upon which the Access Road is constructed shall be responsible for maintenance of the Access Road so long as it remains closed to use by the general public; such maintenance shall not include snow removal, but must be sufficient to permit continued access to the Storage Tank by the Authority for operation and maintenance of the Storage Tank. Any Party who uses the Access Road at a time when snow is present shall be responsible to plow the snow as necessary to permit ingress and egress so long as the Access Road remains closed to use by the general public. The Authority shall be solely responsible for approving all progress payments and disbursements to the contractor or contractors for the Tank Project. Any inspections of construction by Avon shall be in its discretion and at its sole cost and expense. The landscaping requirements set forth in the Bid-Ready Plans supersede all previously adopted landscaping requirements and the Authority shall only be responsible to perform and install those landscaping improvements set forth in the Bid-Ready Plans, to warrant the same until expiration of two complete growing seasons, and to thereafter maintain all such landscaping improvements that are installed within the Tank Site. Master Developer shall, to the extent required by applicable requirements of The Village (at Avon) Design Review Board, be responsible to obtain such board’s approval of the landscape requirements set forth in the Bid-Ready Plans. Any additional landscaping that a Party desires within the Tank Site shall be allowed at the sole expense of such Party, subject to the Authority’s reasonable determination that such additional landscaping improvements will not impair or interfere with the Authority’s operation and maintenance of the Storage Tank, and further subject to review and approval by The Village (at Avon) Design Review Board. 6. Wetlands Mitigation. The Authority shall be solely responsible for obtaining and maintaining any wetland permits required in order to complete the Tank Project, including the Access Road. If the Bid-Ready Plans include the switchback design of the Access Road to the Storage Tank which affords the opportunity for wetlands mitigation unrelated to the Tank Project that may be completed by Master Developer or TCMD, the actual wetlands mitigation vegetation replanting for such wetlands mitigation unrelated to the Tank Project shall not be required of the Authority and shall not be part of the Authority’s permit obligations or construction contract or included in the construction costs to be financed by the Tank Project Bonds. The Authority shall have no responsibility for permits or wetlands mitigation requirements for the Property which are unrelated to the Tank Project and not incorporated in the Bid-Ready Plans. {00268750.DOC / 9} 8 7. Conveyance o f Water Rights. Section 2(b) of the Service Agreement provided for the lease by Master Developer’s predecessor to Avon for sublease without cost to the Authority certain water rights sufficient to replace the consumptive use associated with the development of the Property as ultimately decreed by the Water Court. By the terms of a Water Lease, dated November 4, 2002, certain TCMD water rights (Exhibit 2 thereto), certain historic consumptive use credits dedicated to the plan for augmentation approved in Case No. 97CW306 (Exhibit 3 thereto), and 10.8 acre-feet of Wolford Mountain Reservoir contract water were leased by TCMD to Avon. By the terms of a Water Sublease, dated November 4, 2002, Avon subleased the same water rights to the Authority. In consideration of the undertakings of the Authority pursuant to this Tank Agreement, on the Effective Date the following instruments shall be executed for deposit to the Escrow: a. TCMD shall assign and convey to Avon by Special Warranty Deed in substantially the form attached hereto as Exhibit D-1, all o f its right, title and interest in and to the water rights described therein (collectively, the “Water Rights”), free and clear of all liens and encumbrances, together with all diversion ditches, pipelines, headgates and structures, pumps, casings and other improvements and easements associated or used in connection with the Water Rights as becomes necessary from time to time in order for the Authority to provide municipal water service to the Property (“Appurtenances”), reserving unto TCMD all rights of access and use of the Appurtenances to the extent not required to provide municipal water service for the Property. Prior to the execution of this Special Warranty Deed and its delivery to the Escrow, TCMD shall also provide to the Authority and to Avon a written Title Opinion in a form acceptable to the Authority concerning the Water Rights and Appurtenances conveyed by this Special Warranty Deed which indicates that TCMD owns title to the Water Rights and the land underlying the Appurtenances free and clear of all liens and encumbrances, subject only to the Water Lease dated November 4, 2002, from TCMD to Avon and the Water Sublease dated November 4, 2002, from Avon to the Authority. The commencement date of the record title search of the Water Rights under the Title Opinion shall be the date of the decree in Division No. 5 Case No. 97CW306 or the date of conveyance of the Water Rights and Appurtenances to TCMD, whichever date is earlier. b. Concurrently with the conveyance described in subparagraph 7.a above, Avon shall assign and convey by Special Warranty Deed in substantially the form attached hereto as Exhibit D-2, the Water Rights and Appurtenances to the Authority, subject to a right of reverter to Avon in the event the Authority fails to provide water service to the Property (excepting temporary cessation of water service due to reasonable maintenance requirements or emergency conditions or actions by the Authority as authorized by its Rules and Regulations). c. TCMD and Master Developer shall, without further action or documentation, be deemed to have waived any ownership interest in the thirty (30) acre-feet of Eagle Park Reservoir water previously obtained by the Authority in its name using funds provided by TCMD. {00268750.DOC / 9} 9 d. Any obligation to lease water rights to Avon or the Authority and any obligation of TCMD or Master Developer to construct a water storage tank to serve approximately 2,800 SFEs (single family equivalents) under the terms of the Service Agreement, the Water Lease or the Water Sublease shall be considered satisfied in full once the Water Rights and Appurtenances have been conveyed to the Authority as provided herein and once the Storage Tank has been constructed and is fully operational as provided herein. However, the obligation to fund the construction o f the Storage Tank and all appurtenant facilities shall continue until the Tank Project Bonds are paid in full and the Pledge Agreement has been terminated. This paragraph shall not be construed to relieve TCMD, Master Developer, or any other owner of the Property, or portion thereof, from the obligation to provide additional water rights to serve development on the Property in excess of what is approved by the decree o f the District Court in and for Water Division No. 5 in Case No. 97CW306. e. The Authority shall undertake the ongoing responsibility for any Water Court filings necessary to continue and/or to make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump conditional rights decreed in Case No. 97CW306. TCMD and the Authority shall continue to cooperate with each other in all Water Court matters involving the rights decreed in Case No. 97CW306. The Authority shall file any application necessary to maintain and/or make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump. In the sole and absolute discretion of the Authority, the Authority may require TCMD to file as a co- applicant. In connection with the development of the Property, the Parties acknowledge that the Appurtenances may need to be modified, piped, buried or otherwise improved at TCMD’s or Master Developer’s sole cost and discretion. The instruments effecting the foregoing assignment and conveyance of the Water Rights and Appurtenances (the “Water Instruments”) shall be deposited into the Escrow not later than thirty (30) days after the Effective Date, but shall not be deemed legally effective or operative until formally delivered and/or recorded on the I mplementation Date. 8. Moratorium. For a number of years the Authority has imposed a moratorium upon further water service within the Property. From and after formal delivery from the Escrow of the Water Instruments, the Special Warranty Deed to the Tank Site, the Easement Agreement and the Pledge Agreement on the Implementation Date: a. the moratorium shall be rescinded by Resolution adopted by the Board of Directors of the Authority, effective upon release of the Pledge Agreement, the Deeds and the Easement Agreement from the Escrow; and b. the Authority, without need of further action, legally binds itself to: i. construct the Storage Tank as soon as practicable after the Authority has completed the issuance of the Tank Project Bonds and given Notice to {00268750.DOC / 9} 10 Proceed to the contractor for the Tank Project; thereafter, no delay or problem (foreseen or unforeseen) in completing construction of the Storage Tank shall relieve the Authority of its obligation to provide potable water service to the Property pursuant to its Rules and Regulations and any delay in completing construction of the Storage Tank shall not be a basis for re-imposing the moratorium rescinded pursuant to Section 8.a hereof, except if the Authority is delayed in completing construction of the Storage Tank by the acts or omissions of the other Parties or Limited Parties; and ii. provide potable water service to the Property, subject to the terms of the decree of the District Court in and for Water Division No. 5, Case No. 97CW306, up to a maximum of 106.3 consumptive acre feet per year, and further subject to the improvements to be constructed, or improvements previously constructed, within t he area of the Property physically capable of being served by the Storage Tank (at elevations one-hundred-forty (140) feet below the base of the Storage Tank, or above such elevation upon construction of additional pumping and/or tank storage capacity above such elevation); and iii. issue taps for potable water service as described in subparagraph 8.b.ii above upon payment of any applicable fees, compliance with generally applicable engineering/technical requirements for connection to the Authority’s water distribution system and compliance with the conditions for service as set forth in the Authority’s Rules and Regulations; and c. any development within the Property located at an elevation higher than the property that can be served by the Storage Tank will require additional treated water storage to be constructed by someone other than the Authority or Avon at elevations higher than the Storage Tank elevation if such development is to be served by the Authority; and d. the Authority’s commitment to provide potable water service pursuant to the terms o f the decree in Case No. 97CW306 up to 106.3 consumptive acre feet per year and to issue taps therefore as set forth in this Section 8 shall inure to the benefit of TCMD; and e. as of the Effective Date, an SFE is equivalent to 714 gallons of treated water storage and if TCMD wants the Authority to provide water service to more than 2,800 SFEs, TCMD will have to provide additional treated water storage; or, if water service is proposed to development located above the service area of the Storage Tank, TCMD shall be required to construct and dedicate an additional water storage tank or tanks to t he Authority; however, this provision shall not be construed to imply that the decree in Case No. 97CW306 permits service to approximately 2,800 SFEs, and shall not modify the provisions of subparagraph 8.f set forth below; and {00268750.DOC / 9} 11 f. if any Party wants the Authority to provide service in excess of what is authorized by the decree in Case No. 97CW306, the Party first needs to provide additional water rights and pay all costs incurred by the Authority to adjudicate the necessary water rights to provide the increased level of service; and g. each Party and Limited Party shall have direct rights to enforce the terms and conditions of this Section 8. 9. Public Financing of the Tank Project. The Tank Project public financing shall be accomplished by the following actions of TCMD, the Authority and Avon: a. Pledge; TCMD Bond Reissue. As soon as practicable after the Effective Date, but in any event prior to the Implementation Date, the Authority, BNP, TCMD and VMD shall mutually execute and deposit into the Escrow a pledge agreement in substantially the form attached hereto as Exhibit E and incorporated herein by this reference (the “Pledge Agreement”). The Pledge Agreement shall, in accordance with its terms and conditions, become legally operative and binding on each party thereto only upon formal delivery from the Escrow on the Implementation Date. From and after the Effective Date, TCMD and VMD shall coordinate with BNP to cause the reissue of TCMD’s existing bonded indebtedness on the Implementation Date (the “TCMD Bond Reissue”) so as to enable performance of TCMD’s and VMD’s obligations under the Pledge Agreement. Without limit ing of the terms of the TCMD Bond Reissue documents or the Pledge Agreement, the terms and conditions o f which shall control over any descriptive language herein (which shall not be used to interpret or modify the terms and conditions of the Pledge Agreement in any manner whatsoever): i. The Pledge Agreement sets forth the pledge of TCMD and VMD to pay to the Authority $500,000 or such lesser amount as may be necessary to fully pay the annual debt service on the Tank Project Bonds (as defined in the Pledge Agreement, the “Annual Debt Service Pledge Amount”). If such amount is not sufficient to fully pay the annual debt service on the Tank Project Bonds, the Authority shall not be required to issue the Bonds or construct the Tank and the Authority shall be released from such obligations and BNP shall be released from any obligation it may have to cause the TCMD Bond Reissue to occur. ii. The term of the Pledge Agreement (and of the obligation to remit the Annual Debt Service Pledge Amount) shall commence not later than the issue date of the Tank Project Bonds, and shall terminate on the date on which the Tank Project Bonds are paid in full. iii. During the term of the Pledge Agreement, the Pledged Revenue (as defined in the Pledge Agreement) shall be applied to payment of the Annual Debt Service Pledge Amount on a periodic basis on the terms and conditions set forth in the Pledge Agreement. {00268750.DOC / 9} 12 b. Tank Project Bonds. Concurrently with the closing of the TCMD Bond Reissue, the Authority shall issue bonds to finance construction of the Tank Project (as defined in the Pledge Agreement, the “Tank Project Bonds”). The Tank Project Bonds will be issued (i) in a par amount sufficient to pay the “Mandatory Costs” described in this Section below and (ii) with annual debt service which can be fully paid by the Annual Debt Service Obligation payable by the Districts pursuant to the Pledge Agreement. The par amount of the Tank Project Bonds will be increased to include as much of the “Discretionary Costs” described in this Section below as possible without increasing the annual debt service on the Tank Project Bonds above the Annual Debt Service Obligation payable by the Districts in the Pledge Agreement. For purposes of this Section 9.b, “Mandatory Costs” means: (iii) the estimated costs (including construction costs, contingencies and the cost of construction management services to be provided by the Authority) of the Tank Project, plus (iv) the costs of issuance of and reserve requirements for the Tank Project Bonds. For purposes of this Section 9.b, “Discretionary Costs” means the following costs: (v) $134,119.23 presently due to the Authority from TCMD as described in Section 10 below, and (vi) as described in Section 3 above, the Authority shall first be entitled to reimbursement for its costs incurred in obtaining completion of the Bid-Ready Plans and thereafter TCMD shall be entitled to reimbursement for its expenses up to $66,585.00 incurred in obtaining completion of the Bid-Ready Plans (with all such TCMD reimbursed expenses to utilized for payment of debt service to BNP). Once the Authority has completed the issuance of the Tank Project Bonds and given Notice to Proceed to the contractor for the Tank Project, the Authority shall proceed to complete the Storage Tank and make it operational as soon as possible. c. Avon Actions. In consideration of the undertakings of the other Parties to this Tank Agreement and other benefits to Avon from implementation of the Term Sheet, as of the Effective Date and without the requirement of further action, Avon: (i) waives and releases any claim to revenues of TCMD and VMD required to pay the Annual Debt Service Pledge Amount; (ii) covenants that it will exercise the right of reverter set forth in the Water Instruments upon a triggering event as described in Section 7 above; and (iii) covenants that it will undertake and be responsible for the provision of water service to the Property in the event of a dissolution o f the Authority or otherwise upon exercising the right of reverter described in Section 7 above. {00268750.DOC / 9} 13 10. Other Consideration. a. Immediately upon formal delivery of the Pledge Agreement on the Implementation Date, and without the requirement of any further action, the Authority shall be deemed to have irrevocably released TCMD from any obligation to pay the sum of $20,387.22 due for the remainder of the Authority’s professional fees incurred in adjudicating a plan for augmentation and exchange to allow the Authority to use 10.8 acre-feet of storage in Wolford Mountain and Ruedi Reservoirs acquired from the Traer Creek entities. b. If the amount presently due to the Authority ($134,119.23) from TCMD pursuant to the Agreement dated November 4, 2002, is paid in full or in part by TCMD or Master Developer (Master Developer having no legal obligation to make such payment), or if the amount due is able to be refinanced (in whole or in part) as part of the Tank Project Bonds, immediately upon such payment or refinancing and without the requirement of any further action the Authority shall be deemed to have irrevocably released TCMD to the extent of such payment or refinancing, or both, from the obligation to pay that portion of the obligation to the Authority. If the amount due is not paid in full or cannot be fully re-financed as part of the Tank Project Bonds, TCMD shall continue to make annual payments to the Authority in September of each year in the amount of $11,880 until the $134,119.23 obligation is satisfied in full. The Authority hereby agrees no other professional fees are owed to it by TCMD, VMD or Master Developer and the Authority hereby expressly releases any other such claims for fees through the Effective Date. 11. Conveyance of the Tank Site; Easement Agreement. The Storage Tank shall be constructed and operated by the Authority on the Tank Site. The Tank Site shall be conveyed to the Authority by TCRP by Special Warranty Deed in substantially the form attached hereto as Exhibit B, free and clear of all monetary liens and other encumbrances (the “Tank Site Deed”) which shall include all areas required for ingress and egress, temporary construction easements, maintenance, repairs or replacement of facilities, retaining walls, slope maintenance and snow storage and otherwise meeting the minimum requirements of the Avon Municipal Code. TCRP agrees that it has or will submit the Final Plat for the Tank Site to Avon for approval as a minor subdivision as soon as possible and Avon agrees to process and approve such application in a timely manner. Accordingly: a. By the Effective Date, TCRP and the Authority shall execute and deposit the Tank Site Deed into the Escrow pursuant to the Escrow Agreement. b. By the Effective Date, TCRP and the Authority shall execute and deposit the Easement Agreement in substantially the form attached hereto as Exhibit F, grant ing a non-exclusive easement to the Authority for construction and use o f the Access Road as described therein. {00268750.DOC / 9} 14 c. TCRP shall grant to the Authority at no cost to the Authority, such non-exclusive easements as may reasonably be required within the Access Road alignment and right-of-way, or which otherwise are specifically described in Exhibit F, to connect the Storage Tank to existing water lines and electric lines at locations anywhere on the THE VILLAGE (at AVON) FILING 4 plat to be mutually agreed upon by TCRP and the Authority in the Easement Agreement, Exhibit F, including any pumping station and facilities reasonably necessary to the operations of the Storage Tank. d. TCRP shall grant to the Authority at no cost to the Authority, temporary construction easements and staging areas at a site or sites specifically described in Exhibit F or at the Stolport (in the area recently used as a construction staging area by Xcel Energy and/or near the current recycling area) and/or at a location or locations adjacent to the Access Road as designated by the Authority or its contractor for a staging area or areas, and for all utilities being installed by the Authority to serve the Tank Project. 12. Construct ion and Ownership of Storage Tank. The Authority agrees to commence construction of the Tank Project as soon as possible after the Implementation Date, except if circumstances beyond its control limit its ability to issue or preclude the issuance of the Tank Project Bonds, or to bid and construct the Tank Project. The Authority shall own the Storage Tank and all capacity therein for treated water storage and shall provide all maintenance and operation services for the Storage Tank and the Tank Site at its sole cost and expense. The Parties acknowledge that the Tank Project anticipates and will be designed to accommodate and connect to future water storage tank(s) to be located uphill from the Storage Tank. 13. Prior Agreements Not Fully Superseded; No Cross-Defaults. Except to the extent that Section 2(b) and Section 5 of the Service Agreement are amended and/or superseded by the express terms of this Tank Agreement, the Service Agreement and any other agreement referenced in this Tank Agreement that was executed prior to the Effective Date (“Prior Agreement(s)”) shall continue in effect in accordance with such agreements’ terms, and the parties thereto shall maintain all of their rights, duties and obligations set forth therein. Notwithstanding the foregoing, and notwithstanding anything to the contrary in any Prior Agreement , no default under this Tank Agreement shall be construed to be a default under any Prior Agreement and no default under any Prior Agreement shall be construed to be a default under this Tank Agreement. 14. Default ; Remedies; Rights of Limited Parties and Intended Beneficiaries. a. Default of a Party. A default by a Party is a failure by such Party to fully perform any of its duties and obligations set forth in this Tank Agreement. b. Default of either Limited Party. The obligations of BNP and VMD under this Tank Agreement are expressly limited to those set forth in Section 9.a above, and BNP and VMD shall have no liability arising pursuant to this Tank Agreement to any Party or any Intended Beneficiary except to the extent of BNP’s or VMD’s {00268750.DOC / 9} 15 failure to fully perform their respective duties and obligations as expressly set forth in Section 9.a above. c. Cure Period. Default will not occur until a non-defaulting Party provides the defaulting Party thirty (30) days written notice describing the default, and the defaulting Party is given the opportunity during such time to cure the default. d. Remedies. i. Parties and Limited Parties. Upon the occurrence and continuance of an uncured default, any non-defaulting Party and/or any non-defaulting Limited Party shall, except to the extent limited by an express provision of this Tank Agreement, be entitled to enforce the provisions and any remedy provided in this Tank Agreement at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance (if allowed by law against any local government that is a Party or Limited Party) or damages or a combination thereof may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance (if allowed by law against any local government that is a Party or Limited Party) of the defaulting Party’s or Limited Party’s obligations and/or damages. All of the remedies permitted or available under this Tank Agreement, at law, by statute or in equity shall be cumulative and not in the alternative, and invocation o f any such right or remedy shall not constitute a waiver or election o f remedies with respect to any other permitted or available right or remedy. Additionally, in consideration of this Tank Agreement constituting an intergovernmental agreement by and among Avon, the Authority, TCMD and VMD, each such governmental or quasi-governmental entity expressly affirms its intent that the obligations of each such governmental or quasi-governmental entity are to be enforced in accordance with their terms. ii. Intended Beneficiaries. 1. The Developer Affiliates shall have the right to enforce the Authority’s obligations pursuant to Section 8, together with the right to enforce any right of Master Developer and pursue any remedy available to Master Developer in the event of a default by another of the Parties. 2. Except with respect to those expressly stated rights the Intended Beneficiaries have under this Tank Agreement, no Developer Affiliate is subject to any obligation nor has it acquired any enforcement right or remedy arising solely under this Tank Agreement. {00268750.DOC / 9} 16 15. Assignment. Any Party or Limited Party may assign its rights, duties and obligations under this Tank Agreement upon the prior written consent of the other Parties and the Limited Parties, such consent not to be unreasonably withheld, conditioned or delayed. In addition, the assignor shall provide the other Parties and Limited Part ies with copies of all relevant documentation of such assignment. 16. No Waiver; Governmental Immunity; Annual Appropriation. Any Party’s or Limited Party’s waiver of, or failure to pursue any available remedy for, a breach of any term or provision of this Tank Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party or Limited Party. Additionally, and notwithstanding any provision o f this Tank Agreement to the contrary, no term or condition of this Tank Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to TCMD, VMD, the Authority and Avon under the Colorado Governmental Immunity Act, §§ 24-10-101 et seq., C.R.S. The obligations of the Authority and Avon hereunder are subject to the annual appropriation of funds necessary for the performance thereof, which appropriations shall be made in the sole discretion of the Authority’s Board of Directors or the Avon Town Council as applicable. 17. Amendment; Modification. This Tank Agreement may be modified only by the signed, written agreement of the Parties or their respective agents, successors and assigns. The prior written consent of the Limited Parties shall not be required except to the extent the proposed modification directly and expressly affects a right or obligation of the Limited Parties, and such consent shall not be unreasonably withheld, conditioned or delayed. Additionally, the Parties and the Limited Part ies acknowledge that the TCMD Bond Reissue documentation is anticipated to preclude TCMD and/or VMD from entering into any modification of this Tank Agreement without the prior written consent of BNP, which consent BNP shall not unreasonably withho ld, condition or delay. 18. Further Cooperation. The Parties and Limited Parties shall reasonably cooperate with one another to effectuate the intent of the Parties and Limited Part ies as described herein, including without limitation, executing any and all further instruments and documents, and doing and performing such further and additional acts and things necessary or proper to effectuate or further evidence the terms and provisions of this Tank Agreement. 19. Proper Authority. The Parties and the Limited Parties represent and warrant that they have full right and capacity to enter into this Tank Agreement and have taken any and all actions required and have any and all necessary approvals to enter into this Tank Agreement. 20. Attorneys’ Fees. The prevailing Party or Limited Party in any action concerning the enforcement or interpretation of this Tank Agreement shall be awarded, in addition to any damages or other form of relief awarded, all reasonable costs incurred in connection therewith, including attorneys’ fees and costs through all appeals. 21. Governing Law. This Tank Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce this Tank {00268750.DOC / 9} 17 Agreement or arising out of this Tank Agreement shall be brought in the State of Colorado, Eagle County District Court, as the exclusive venue and forum. 22. Severability. If any term, provision, covenant or condition of this Tank Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Tank Agreement shall, unless amended or modified as provided in Section 17 above, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Part ies against whom they are being enforced of a material benefit of the bargain under this Tank Agreement or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. 23. Entire Agreement. From and after the Implementation Date, this Tank Agreement shall be construed to constitute the entire agreement between the Parties and Limited Parties with respect to the matters set forth herein and to supersede all previous oral or written communications, representations, understandings, undertakings, or agreements between the Parties and Limited Parties, except as otherwise stated herein, specifically including Section 3 of the Term Sheet except as it pertains to the 1041 Permit. 24. Counterpart Execution. This Tank Agreement may be signed in multiple counterparts, with facsimile signatures permitted, and each counterpart when taken with the other executed counterpart shall constitute a binding agreement among the Parties and the Limited Parties as of the Effective Date (with respect to those provisions that are effective as of the Effective Date) or as of the Implementation Date (with respect to those provisions that are effective only upon occurrence of the Implementation Date). 25. Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Tank Agreement shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, three (3) business days after mailed. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): {00268750.DOC / 9} 18 To the Authority: Upper Eagle Regional Water Authority 846 Forest Road Vail, CO 81657 Attention: General Manager Telephone: (970) 477-5444 Email: lbrooks@erwsd.org With a required copy to: Collins, Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 Attn: Jim Collins Telephone: (303) 986-1551 Email: jcollins@cccfirm.com To Avon: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748-4452 Email: vegger@avon.org With a required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attn: Town Attorney To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: {00268750.DOC / 9} 19 McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To Traer Creek-RP LLC: c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] With a required copy to: Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: 303.825.8400 Email: munsey@ottenjohnson.com To the Limited Parties: The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jaco by Telephone: (303) 987-0835 {00268750.DOC / 9} 20 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com BNP Paribas Value Preservation Group 787 Seventh Avenue, 9th Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: (212) 841-3607 Email: Barbara.eppolito@bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Attn: Brandee Caswell Telephone: (303) 607-3826 Email: Brandee.caswell@faegrebd.com To the Intended Beneficiaries: Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] 26. Escrow; Escrow Instructions. As quickly as is practicable after the Parties’ and Limited Parties’ mutual approval and execut ion of this Tank Agreement, each Party and the Limited Parties will deposit a signed original of such documents as each is required to deposit in the Escrow subject to the Escrow Instructions. 27. Rights Upon Occurrence of Outside Date. If the Outside Date occurs without the Implementation Date having occurred, this Tank Agreement shall be deemed void ab initio and of no further force or effect; provided, however, to the extent the failure of the Implementation Date to occur results from a failure of a Party or Limited Party to perform (whether by action or inaction) an obligation of such Party or Limited Parties that arose under this Tank Agreement as of the Effective Date, the other Parties, Limited Parties and any applicable Intended Beneficiary may pursue all o f their respective remedies under this Tank Agreement with respect to such By: Name: Title: breach, which remedial rights the Parties and the Limited Parties expressly intend to survive and be legally enforceable notwithstanding this Tank Agreement being otherwise deemed inoperative under the circumstance described above. 28. Successors and Assigns. This Tank Agreement shall be binding upon the Parties, the Limited Parties and upon their heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties and by the Limited Party as of the Effective Date. PARTIES: THE AUTHORITY: THE UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political sub vision of the S of olorado By: Name: Ttnovv‘aeL-E0-n 1Aa3rck- Title: e_;Mi.vvw.wn AVON: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President {00268750.DOC / 9) 21 TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State or Colorado By: Name: aniel I. I Title: President breach, which remedial rights the Parties and the Limited Parties expressly intend to survive and be legally enforceable notwithstanding this Tank Agreement being otherwise deemed inoperative under the circumstance described above. 28. Successors and Assigns. This Tank Agreement shall be binding upon the Parties, the Limited Parties and upon their heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, this Agreement has been duly executed by the Parties and by the Limited Party as of the Effective Date. PARTIES: THE AUTHORITY: THE UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Title: AVON: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By Name: Title: TCMD: {00268750.DOC 19} 21 Attest: Secretary MASTER DEVELOPER: TRAER. CREEK LLC, a Colorado limited liability company By: Name: Marcus Lindholm Title: Manager TCRP: TRAER CREEK-RP LLC, a Colorado limited liability company By: TRAER CREEK LLC, a Colorado limited liability company, its Manager By: Name: Marcus Lindholm Title: Manager (00268750.DOC / 9) 22 By Name: M Title: indholm ager Attest: Secretary MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company TCRP: TRAER CREEK-RP LLC, a Colorado limited liability company By: TRAER CREEK LLC, a Colorado limited liability company, its Manager By: Name: Ms Lindholm Title: nager (00268750.DOC / 9) 22 By: Name: Daniel J. Title: President BNP PARIBAS, a financial institution organized under the laws of the Republic of France By: Name: Title: By: Name: Title: od LIMITED. PARTIES: VMD: THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado BNP: {00268750 DOC /9) 23 {00268750.DOC / 9} Exhibit A Legal Description of the Property [Source: Exhibit A to Service Agreement, May 15, 1997] {00268750.DOC / 9} {00268750.DOC / 9} {00268750.DOC / 9} {00268750.DOC / 9} Exhibit B Special Warranty Deed to the Tank Site {00268750.DOC / 9} {00268750.DOC / 9} {00268750.DOC / 9} Exhibit C Design Costs Agreement {00268750.DOC / 9} {00268750.DOC / 9} D-1 Exhibit D-1 Special Warranty Deed TCMD to Avon {00268750.DOC / 9} D-2 {00268750.DOC / 9} D-3 {00268750.DOC / 9} D-4 {00268750.DOC / 9} D-5 {00268750.DOC / 9} D-6 {00268750.DOC / 9} D-7 {00268750.DOC / 9} D-8 {00268750.DOC / 9} D-9 Exhibit D-2 Special Warranty Deed Avon to Authority {00268750.DOC / 9} D-10 {00268750.DOC / 9} D-11 {00268750.DOC / 9} D-12 {00268750.DOC / 9} D-13 {00268750.DOC / 9} D-14 {00268750.DOC / 9} D-15 {00268750.DOC / 9} D-16 {00268750.DOC / 9} E-1 Exhibit E Pledge Agreement {00268750.DOC / 9} E-2 {00268750.DOC / 9} E-3 {00268750.DOC / 9} E-4 {00268750.DOC / 9} E-5 {00268750.DOC / 9} E-6 {00268750.DOC / 9} E-7 {00268750.DOC / 9} E-8 {00268750.DOC / 9} E-9 {00268750.DOC / 9} E-10 {00268750.DOC / 9} E-11 {00268750.DOC / 9} E-12 {00268750.DOC / 9} E-13 {00268750.DOC / 9} E-14 {00268750.DOC / 9} E-15 {00268750.DOC / 9} E-16 {00268750.DOC / 9} E-17 {00268750.DOC / 9} E-18 {00268750.DOC / 9} E-19 {00268750.DOC / 9} E-20 {00268750.DOC / 9} F-1 Exhibit F Easement Agreement {00268750.DOC / 9} F-2 {00268750.DOC / 9} F-3 {00268750.DOC / 9} F-4 {00268750.DOC / 9} F-5 {00268750.DOC / 9} F-6 {00268750.DOC / 9} F-7 {00268750.DOC / 9} F-8 {00268750.DOC / 9} F-9 {00268750.DOC / 9} F-10 {00268750.DOC / 9} F-11 {00268750.DOC / 9} F-12 {00268750.DOC / 9} F-13 {00268750.DOC / 9} F-14 {00268750.DOC / 9} F-15 {00268750.DOC / 9} F-16 {00268750.DOC / 9} F-17 {00268750.DOC / 9} F-18 {00268750.DOC / 9} F-19