TC Council Packet 09-24-2013
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 24, 2013
AVON LIQUOR AUTHORITY MEETING BEGINS AT 4:00 PM
REGULAR MEETING BEGINS AT 4:15 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Meeting Agenda 13 09 24 Page 1
PRESIDING OFFICIALS
MAYOR RICH CARROLL
MAYOR PRO TEM TODD GOULDING
COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER,
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
PLANNING AND ZONING COMMISSIONERS
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.
______________________________________________________________________________________________________________
4:00 PM LIQUOR LICENSING AUTHORITY MEETING (SEE PAGE 3)
4:15 PM REGULAR MEETING
1. CALL TO ORDER & ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. Action Items
4.1. Special Water Counsel
4.1.1. Action on Agreement to Retain Special Water Counsel (Virginia Egger, Town Manager)
4.1.2. Council Review and Direction for Amendments to the Water Authority Master Agreement
(Todd Goulding, Councilor)
4.2. Review an Appeal, in accordance with Avon Municipal Code §7.16.160, Appeals, for a Planning
and Zoning Commission decision to not approve a portion of a color change application for Lot
65-B, Block 2, Benchmark at Beaver Creek Subdivision (aka “Annex Building”) – Jon White,
President, Hoffmann Commercial Real Estate. A quorum of the Planning and Zoning
Commission will be present for this item. (Jared Barnes, Planner II)
4.3. Public Hearing - Second Reading of Ordinance 13- 12, Series 2013, Amending the Avon Municipal
Code for Personal Possession of Marijuana (Eric Heil, Town Attorney)
4.4. Resolution 13-26, Series of 2013, Resolution Establishing a Special Event Admission Ticket Fee
for the purposes of Equipment Investments and for Defraying Town Costs (Danita Dempsey,
Special Events Coordinator)
4.5. Resolution to Adopt 13–27, Series of 2013, Resolution to Adopt the Town of Avon 2013-2014
Strategic Plan Update (Virginia Egger, Town Manager)
4.6. Appointment of Town Council members to serve on a Town of Avon/Eagle River Fire Protection
District Task Force
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 24, 2013
AVON LIQUOR AUTHORITY MEETING BEGINS AT 4:00 PM
REGULAR MEETING BEGINS AT 4:15 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Meeting Agenda 13 09 24 Page 2
4.7. Minutes from September 10, 2013 Meeting (Patty McKenney, Assistant Town Manager)
5. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC)
5.1. Meet with Special Counsel for the purpose of receiving legal advice pursuant to Colorado
Revised Statute §24-6-402(4) (b) related to the investigation of alleged ethics violation and
review of residency requirements.
5.2. 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.
5.3. Meet Pursuant to Colorado Revised Statute §24-6-402(4) (f) for the purpose of discussing
personnel matters related to the appointment of the Town Manager as representative to
certain Housing Boards.
6. ACTION ITEMS
6.1. Village of Avon Update (Eric Heil, Town Attorney)
6.1.1. Public Hearing Second Reading of Ordinance 13–13 an Ordinance Amending the
Consolidated and Amended and Restated Annexation and Development Agreement for
the Village at Avon (Eric Heil, Town Attorney)
6.1.2. Approval of Amendments to the Traer Creek Water Tank Agreement, including Pledge
Agreement Terms (Eric Heil, Town Attorney) (May be continued)
6.2. Appointment of a Town Representative to serve on Boards of Directors for the Buffalo Ridge
Affordable Housing Corporation, Eaglebend Affordable Housing Corporation and Kayak
Crossing Affordable Housing Corporation (Patty McKenny, Assistant Town Manager)
7. WORK SESSION
7.1. Budget Work Session - Council Review and Direction on recommended:
7.1.1. Employee Compensation Package, including Salary Market Analysis and Health Insurance
Premium Contributions (Virginia Egger, Town Manager)
7.1.2. Town Attorney and Special Counsel Budgets, including Water Counsel
(Virginia Egger, Town Manager)
7.2. Fiscal Year 2013 Financial Report dated September 24, 2013 (Report Only from Finance)
8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
8.1. Upper Eagle Regional Water Authority Board Meeting (Todd Goulding, Mayor Pro Tem)
8.2. EGE Air Alliance (Rich Carroll, Mayor)
9. COUNCIL COMMENTS
10. MAYOR REPORT AND FUTURE AGENDA ITEMS
11. ADJOURNMENT
TOWN OF AVON, COLORADO
TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 24, 2013
AVON LIQUOR AUTHORITY MEETING BEGINS AT 4:00 PM
REGULAR MEETING BEGINS AT 4:15 PM
AVON TOWN HALL, ONE LAKE STREET
Avon Meeting Agenda 13 09 24 Page 3
FUTURE AGENDA ITEMS:
October 8 th: URA Financing Term Sheet, Budget Work Session Topics: Review of Outside Funding Requests,
Review of Funds for Housing, Equipment Replacement, CIP, Debt, URA, CEF, FRF & Water Funds
October 22nd: Meet with Planning and Zoning Commission
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING MEETING FOR TUESDAY, SEPTEMBER 24, 2013
MEETING BEGINS AT 4:00 PM
AVON TOWN HALL, ONE LAKE STREET
AVON MEETING AGENDA 13 09 24 Page 4
PRESIDING OFFICIALS
PRESIDING OFFICIALS
CHAIRMAN RICH CARROLL
VICE CHAIRMAN TODD GOULDING
BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER
ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY
ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. PUBLIC HEARING ON NEW LICENSE APPLICATION
4.1. Applicant Name: Swiss Hotdog Company LLC
Address: 101 Fawcett Road #125
Manager: Anthony Larese
Type of License: Beer and Wine License
Resolution No. 13-01, Series of 2013, Resolution Approving the Application of Swiss Hot Dog Company
Inc. for a Beer and Wine License
5. RENEWAL OF LIQUOR LICENSES
5.1. Applicant Name: Krusen, Inc. d/b/a Avon Liquors
Address: 100 W. Beaver Creek Blvd.
Manager: Brian Kruse
Type of License: Retail Liquor License
5.2. Applicant Name: R&E Enterprise, LLC d/b/a Gondola Pizza
Address: 240 chapel Place #114
Manager: Claudiu Popa
Type of License: Hotel and Restaurant Liquor License
6. MINUTES FROM SEPTEMBER 10, 2013
7. ADJOURNMENT
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR WEDNESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
ALB 13.09.10 Minutes Page 1
1. CALL TO ORDER AND ROLL CALL
Vice Chairman Todd Goulding called the meeting to order at 4 PM. A roll call was taken and Board members present
were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, Buz Reynolds and Jake Wolf. Both Buz Reynolds and
Rich Carroll arrived a few minutes after roll call. Also present were Town Manager Virginia Egger, Town Attorney Eric
Heil, Assistant Town Manager/Town Clerk Patty McKenny, Police Chief Bob Ticer, as well as other staff members and
the public.
2. APPROVAL OF AGENDA
There were no changes to the agenda.
3. PUBLIC COMMENT
There were no public comments.
4. RENEWAL LIQUOR LICENSES
4.1. Applicant Name: Dillon Companies, Inc. d/b/a City Market #26
Address: 0072 Beaver Creek Place
Manager: Jeff Gentilini
Type of License: 3.2% Beer License
Town Clerk Patty McKenny noted that the application was in order. Board member Evans moved to approve the
renewal of the Hotel and Restaurant Liquor License for Dillon Companies, Inc. d/b/a City Market #26; Board member
Goulding seconded the motion and it passed unanimously.
4.2. Applicant Name: Chair Four LLC d/b/a VIN 48
Address: 48 E. Beaver Creek Blvd.
Manager: Collin Baugh
Type of License: Hotel and Restaurant License
Town Clerk Patty McKenny noted that the application was in order. Board member Dantas moved to approve the
renewal of the Hotel and Restaurant Liquor License for Chair Four LLC d/b/a VIN 48; Board member Evans seconded the
motion and it passed unanimously.
5. MINUTES
5.1. Action on Minutes from August 27, 2013 Meeting
Board member Dantas moved to approve minutes from August 27, 2013; Board member Fancher seconded the motion
and it passed unanimously.
There being no further business to come before the Board, the meeting adjourned at 4:05PM.
RESPECTFULLY SUBMITTED:
____________________________________
Patty McKenny, Secretary
APPROVED:
Rich Carroll ______________________________________
Dave Dantas ______________________________________
Chris Evans ______________________________________
Jennie Fancher ______________________________________
Todd Goulding ______________________________________
Albert “Buz” Reynolds ______________________________________
Jake Wolf ______________________________________
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Agenda topic: Action on Agreement for Legal Services for Special Water Counsel
Please find attached a Letter of Engagement to provide legal services to the Town of Avon by the firm of Moses,
Wittemyer, Harrison and Woodruff, P.C. (MWHW) and its attorneys Patricia deChristopher and Jay Montgomery.
The firm would provide special water counsel to the Town of Avon.
Key elements of the Letter include:
• Statement regarding potential conflicts of interest
• Jay Montgomery, who is of-counsel to MWHW, and previously represented the Town, will be available at
least through December 31, 2014 to assist in work on the Town’s behalf. Jay’s consultation for transition
of all of the firm’s legal work for the Town of Avon will be without billing to the Town. For matters, more
efficiently handled by Jay, billings will be appropriate.
• The Town may terminate the engagement of MWHW at any time.
• 2013 AND 2014 MWHW Hourly Rates are provided.
Major work activities and estimated costs for legal services for the balance of 2013 and 2014 are as follows:
• Review of Water Authority agenda materials and Water Court resumes $ 5,000
• Advice to Town Council and, as needed, negotiations on the
Water Authority Master Agreement (assumes several meetings in Avon or Vail) $40,000
$45,000
Monies are budgeted in the Water Fund. In 2013, the Special Water Counsel was a budgeted at $25,000. Through
July $11,800 has been expended. With Water Authority Master Agreement work prioritized in the Strategic Plan,
additional funds should be budgeted.
Recommendation: Motion to authorize the Mayor to sign the Letter of Engagement with Moses, Wittemyer,
Harrison and Woodruff, dated September 19, 2013.
Attached: Letter of Engagement and Hourly Rates
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
LAW OFFICES
1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES
TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011)
RICHARD J. MEHREN CHARLES N. WOODRUFF
PATRICIA M. DECHRISTOPHER TELEPHONE: (303) 443-8782 (1941-1996)
_______ FAX: (303) 443-8796
INTERNET: www.mwhw.com COUNSEL
ANNE D. BENSARD JOHN WITTEMYER
JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON
ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY
CAROLYN R. STEFFL BOULDER, COLORADO 80306-1440
00038543-1
This is to advise that effective January 1, 2013 our hourly rates for professional services rendered
will be as follows:
David L. Harrison $275.00 per hour
James R. Montgomery $260.00 per hour
Timothy J. Beaton $250.00 per hour
Richard J. Mehren $230.00 per hour
Patricia M. DeChristopher $210.00 per hour
Carolyn R. Steffl $200.00 per hour
Jennifer M. DiLalla $185.00 per hour
Alison D. Gorsevski $160.00 per hour
Anne D. Bensard $150.00 per hour
Paralegal $ 85.00 per hour
Senior Law Clerks $ 85.00 per hour
Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing.
The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in
addition to hourly rates, for work involving special risks, effort or time constraints including,
without limitation, opinions relating to title, bonds and similar matters.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
LAW OFFICES
1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES
TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011)
RICHARD J. MEHREN CHARLES N. WOODRUFF
PATRICIA M. DECHRISTOPHER TELEPHONE: (303) 443-8782 (1941-1996)
_______ FAX: (303) 443-8796
INTERNET: www.mwhw.com COUNSEL
ANNE D. BENSARD JOHN WITTEMYER
JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON
ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY
CAROLYN R. STEFFL BOULDER, COLORADO 80306-1440
00058374-1
This is to advise that effective January 1, 2014 our hourly rates for professional services rendered
will be as follows:
David L. Harrison $275.00 per hour
James R. Montgomery $270.00 per hour
Timothy J. Beaton $260.00 per hour
Richard J. Mehren $235.00 per hour
Patricia M. DeChristopher $220.00 per hour
Carolyn R. Steffl $210.00 per hour
Jennifer M. DiLalla $195.00 per hour
Alison D. Gorsevski $165.00 per hour
Anne D. Bensard $165.00 per hour
Paralegal $ 90.00 per hour
Senior Law Clerks $ 85.00 per hour
Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing.
The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in
addition to hourly rates, for work involving special risks, effort or time constraints including,
without limitation, opinions relating to title, bonds and similar matters.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Agenda topic: Direction on Requested Amendments to the Water Authority Master Service Contract
Please find attached a Memorandum dated August 29, 2013 from Linn Brooks and Dennis Gelvin, representing the
Upper Eagle Regional Water Authority (UERWA). The Memorandum, in summary, asks for each of the six
members of UERWA to consider certain amendments to the Master Service Contract. The amendments are
recommended to align the Service Contract with current practices and procedures of the UERWA. Three issues
have been identified for change by March, 2014:
I. Withdrawal by a Contracting Party
II. Distributions on Termination, and
III. (Conveyance of) Water Rights.
Each member has been asked to begin with a review of the first issue, Withdrawal by a Contracting Party, for
discussion at UERWA’s next meeting on September 26th.
Town of Avon – UERWA Meeting
Mayor Rich Carroll, attending by phone part of the meeting, and Councilor Todd Goulding, with Town Engineer
Justin Hildreth and me, met with representatives of the UERWA in a work session format on July 16th. Linn Brooks,
Dennis Gelvin and George Gregory were the participants for UERWA. From that session the group concurred that
the amendments needed were as listed below and should be all accomplished as a comprehensive amendment
and not completed issue by issue due to the interrelated nature of the decisions. The goal was to complete the
work not later than November 1, 2014.
I. Withdrawal by a Contracting Party
II. Distributions on Termination
III. Policy and Procedures for using or distributing “Unallocated Water Rights”, which have been purchased
over time by the UERWA with customer revenues; and
IV. Consideration of water restrictions due to low snowfall periods, including consumptive water rights
V. Town of Avon SFE calculations – conversion evaluation and formula for additional SFE purchases
It was our understanding the conveyance of water rights was last in work priority.
Direction Requested
Council is asked to provide direction in terms of responding to the request of the UERWA for the order of
amendments.
{00348146.DOCX /}
MEMORANDUM
August 29, 2013
VIA HAND DELIVERY
TO: Board of Directors
Upper Eagle Regional Water Authority
FROM: Linn Brooks and Dennis Gelvin
RE: The Authority Agreement (2013)
The Board has directed that future consideration of the approval and adoption of
The Authority Agreement Amending and Restating the Agreement Establishing the
Upper Eagle Regional Water Authority (1984) and the Master Service Contract (1998) be
before the Board as a whole. This is the first “installment” of what we hope will be a
successful conclusion to a process begun several years ago to update the Authority’s
governing document and align it with our current practices and procedures. Every
organization can benefit from a periodic review of its organic documents which govern
its formation and operations and determine its future viability. It has been so for the
Authority and the Staff. We welcome your discussion and your questions as we move
forward to closure on these important issues.
In our conversations with each of you and representatives of your District or the
Town of Avon, it has become clear to us that there are three issues that some of you feel
are still “in play” as we get closer to a request for approval of The Authority Agreement.
These issues are Withdrawal by a Contracting Party (Section 18), Distributions on
Termination (Section 16), and (Conveyance of) Water Rights (Section 12). We propose
that if you agree these are the principal issues for discussion, that each be considered at a
separate meeting or work session in order listed above. At the conclusion of this process,
we expect that The Authority Agreement will be ready for your approval and submittal
with your recommendation to the governing body of the entity you represent. The target
date we have established for completion of this entire process is March 2014, in advance
of the regular special district elections in May. We have found that as elected officials
“turn over,” the process for adoption of a new Authority Agreement has bogged down
and has required additional informational sessions. If you agree, we now wish to pursue
approval and adoption to conclusion over the next 6 months.
Withdrawal by a Contracting Party
COLLINS COCKREL & COLE
Board of Directors
August 29, 2013
Page 2
{00348146.DOCX /}
Although the Authority has retained its original composition for almost 30 years,
we recognize that change is a constant and that at some point a Contracting Party may
determine to go in a different direction with respect to water storage, treatment and
distribution. Each of the entities you represent operated its own water system before
1984 and that system and the water rights that entity owned and used for those purposes
should always be returned to that entity upon Withdrawal. As you know, since 1984 the
Authority has, for the benefit of all Contracting Parties, acquired, developed or
constructed facilities that have expanded the scope and reach of the water rights provided
by the Contracting Parties. If one Contracting Party elects to withdraw, it should be
expected that the so called “Unallocated Water” would be retained by the Authority for
the use and benefit of the Contracting Parties who remain in the Authority. Essentially,
that is what is presently provided in Section 7 of the 1984 Establishing Agreement:
Adding or Deleting Parties. No party may be added to this Agreement as a
Contracting Party without the unanimous consent of all Contracting Parties
authorized by a written document formally approved by the governing body of
each Contracting Party. A party added as a Contracting Party shall be subject to
such terms and conditions as the Board of Directors, in its sole discretion, may
determine; provided, however, that a new Contracting Party shall be assessed a
capital investment fee to cover its pro rata share of the costs of those capital assets
previously purchased or constructed by the Authority for joint use by all
Contracting Parties. A Contracting Party may withdraw from this Agreement by
written document authorized by the governing body of such Contracting Party,
which shall be presented to the Authority not earlier than June 1st or later than July
15th of any calendar year; provided, however, such withdrawing Contracting Party
shall remain liable for any and all financial obligations and all indebtedness
incurred pursuant to any contract between the Authority and the Contracting Party
pursuant to which the Authority provides service to the Contracting Party (the
“Service Contract”). Upon withdrawal, a withdrawing Contracting Party shall
have no further interest, right or title in or to any assets or equity of the Authority,
and shall forfeit its status as a “Contracting Party” with regard to its Board of
Directors position and voting rights inherent therein, unless there is a specific
agreement to the contrary; provided, however, that any water rights conveyed,
assigned, leased or otherwise contributed to the Authority by a withdrawing
Contracting Party shall immediately vest in such Contracting Party unless
otherwise provided in the Service Contract. (As Amended, April 1, 1985)
COLLINS COCKREL & COLE
Board of Directors
August 29, 2013
Page 3
{00348146.DOCX /}
The water rights which the Authority has developed and which it has adjudicated
or allocated now require that the provisions for Withdrawal be modified to include
vesting of those assets which have been allocated in some fashion each Contracting Party,
in addition to those assets which were originally owned by the Contracting Party and
leased to the Authority. With Glenn’s help, we have now modified the Withdrawal
provisions as Section 18 in The Authority Agreement to read as follows:
Withdrawal by a Contracting Party. A Contracting Party may withdraw from
this Agreement on December 31 of any calendar year by written document
authorized by the governing body of such Contracting Party, which shall be
presented to the Board of Directors of the Authority not earlier than June 1st or
later than July 15th of any calendar year in which the Party wishes to withdraw;
provided, however, such withdrawing Contracting Party shall remain liable for any
and all financial obligations and all indebtedness incurred by the Authority to
provide service to Water Service Customers residing within the boundaries of that
Contracting Party. Upon withdrawal, a withdrawing Contracting Party shall have
no further interest, right or title in or to any assets or equity of the Authority, and
shall forfeit its status as a “Contracting Party” with regard to its position on the
Board of Directors and voting rights inherent therein, unless there is a specific
agreement to the contrary; provided, however:
(a) any water rights conveyed, assigned, leased or otherwise
contributed to the Authority by a withdrawing Contracting Party
shall immediately vest in such Contracting Party;
(b) any direct flow or storage water rights that are owned by the
Authority and originally conveyed, assigned or otherwise
contributed or paid for by a third party in return for a commitment to
provide water service to a given parcel or parcels of property located
within the boundaries of withdrawing Contracting Party shall
immediately vest in the withdrawing Contracting Party;
(c) the amount of Eagle Park Reservoir water owned by the Authority
and allocated to the withdrawing Contracting Party in the Eagle Park
Reservoir Agreement dated October 23, 1996, among the Authority
and the Contracting Parties shall immediately vest in the
withdrawing Contracting Party;
COLLINS COCKREL & COLE
Board of Directors
August 29, 2013
Page 4
{00348146.DOCX /}
(d) the amount of Green Mountain Reservoir water available to the
Authority under a valid contract with the Bureau of Reclamation and
allocated to the withdrawing Contracting Party, if any, in the decree
of the District Court in and for Water Division No. 5 in Case No.
92CW291 shall be assigned by the Authority to the withdrawing
Contracting Party. The Authority shall request such assignment and
implement the effect of such assignment as soon as possible after the
date of withdrawal.
Any other direct flow water rights that are owned by the Authority and not
originally conveyed by the withdrawing Contracting Party, and any other storage
water rights that are owned or leased by the Authority and not originally conveyed
or assigned by the withdrawing Contracting Party (collectively referred to herein
as the “Unallocated Water”) shall be retained by the Authority for its own use and
for the benefit of the remaining Contracting Parties. On the date of withdrawal,
the withdrawing Contracting Party immediately shall have vested in the
withdrawing Contracting Party, in addition to Water Rights, the withdrawing
Contracting Party’s individual Water System to the extent possible to describe,
including enlargements and additions thereto while it was owned and operated by
the Authority that do not serve others. The Water Service Customers of the
Authority who are connected to such Water System shall immediately become
customers of the withdrawing Contracting Party and the Authority shall be entitled
to Service Charges from the previous billing date to the date of the Contracting
Party’s withdrawal and to thereafter charge the withdrawing Contracting Party for
treated water delivered to the withdrawing Contracting Party’s Water System as
determined by the metered water use of its customers. The withdrawing
Contracting Party shall have the right to become a wholesale purchaser of treated
water from the Authority and shall thereafter have the right to bill and collect all
charges for water from its individual customers and shall be responsible for the
cost of repairs and maintenance of its Water System. The Authority shall retain
the right to use the water mains, water storage and any pumps and appurtenances
that are part of the withdrawing Contracting Party’s Water System to continue to
serve Water Service Customers of the Authority residing outside the jurisdictional
boundaries of the withdrawing Contracting Party as part of its regional water
distribution system. The Authority shall pay a fair share of the maintenance cost
of the mains, storage, pumps and appurtenances utilized.
COLLINS COCKREL & COLE
Board of Directors
August 29, 2013
Page 5
{00348146.DOCX /}
From and after the date of withdrawal, the withdrawing Contracting Party shall be
solely responsible for any continuing or future adjudication and diligence
proceedings as to any and all water rights and water storage rights that vest in the
withdrawing Contracting Party under subparagraphs (a), (b), (c) and (d) of this
Section 18, including any conditional water rights, which the withdrawing
Contracting Party shall thereafter prosecute in its own name and at its sole
expense. The Authority shall continue to be solely responsible for future
adjudication and diligence proceedings for the Water Rights, Water Leases and
Unallocated Water retained by the Authority and the Authority reserves the
absolute right to appear and object to any change proposed by the withdrawing
Contracting Party in the future if such objection is in the best interest of the
Authority and the Contracting Parties.
Your Assignment
Please review Section 18 carefully, note your questions and comments and be
prepared to discuss this provision as you feel necessary at the September Board Meeting
on September 26. We expect to take up Distributions on Termination at the October
Meeting and (Conveyance of Water Rights) at the November Meeting. We can address
any remaining questions at the December Meeting so that The Authority Agreement
should be ready for final consideration at the January Meeting. If each entity could then
consider approval of The Authority Agreement at your February Meetings, we would
then be ready to execute the new Authority Agreement in March.
Thank you for your consideration.
cc: James P. Collins, Esq., General Counsel
Glenn Porzak, Special Counsel for Water
The Annex Building Color Change Appeal
September 24, 2013 Town Council Page 1 of 4
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Jared Barnes, Planner II
Date: September 24, 2013
Agenda topic: The Annex Building Color Change Appeal
Background
Greg Hoffmann, Benchmark Investors, LLC, (the Applicant) submitted a “Minor Design and Development
Plan” application and an “Alternative Equivalent Compliance” (AEC) application (collectively “the
Application”) for three properties (collectively “the Property”) : the Christy Sports building (Lot 21, Block 2,
Benchmark at Beaver Creek Subdivision (BMBC) – 182 Avon Road); the Benchmark Shopping Center
building (Tract Q, Block 2, BMBC – 82 Benchmark Road); and, the Avon Annex building (Lot 65-B, Block 2,
BMBC – 142 Beaver Creek Place). The application proposed to modify the existing colors for each building
as follows:
Benchmark Shopping Center
-Base color: Benjamin Moore “Mexicana” (2172-30)
-Trim color: Benjamin Moore “Branchport Brown” (HC-72)
-Accent on ceiling and walkways: Benjamin Moore “Monterey White” (HC-27)
Annex
-Base color: Benjamin Moore “Monterey White” (HC-27)
-Trim and accent color: Benjamin Moore “Buckingham Gardens” (545)
-Roof color: Benjamin Moore “Branchport Brown” (HC-72)
Christy Sports
-Trim and accent color: Benjamin Moore “Branchport Brown” (HC-72)
Subsection 7.28.090(c)(3)(v) of the Avon Municipal Code states:
Indigenous natural or earth tones such as brown, tan, grey, green, blue, or red in muted, flat colors
with an LRV (Light Reflective Value) of sixty (60) or less are required.
The proposed color change generally complied with this section of code with the exception of the
proposed “Monterey White” color as it has an LRV of 77.32. Exceeding this code requirement necessitated
an AEC request and hearing before the Planning and Zoning Commission (PZC) for review.
PZC Review
At the August 6, 2013 meeting, the PZC reviewed the application, which was represented by the applicant’s
consultant, Worth Interiors. The PZC ultimately approved the color change for the Christy Sports building
only, while the remaining buildings and their respective colors were continued. The PZC cited concerns
over how some of the colors would appear on the site and directed the applicant to paint samples of the
proposed colors on the Annex and Benchmark Shopping Center buildings, so that a review of the colors
could be performed under natural light. The Applicant complied with this request and in addition painted
alternative color samples for the “Monterey White” color, as suggested by Staff. These alternative
options are as follows:
The Annex Building Color Change Appeal
September 24, 2013 Town Council Page 2 of 4
-Benjamin Moore “Manchester Tan” (HC-81) – LRV 63.69
-Benjamin Moore “White Sand” (OC-10) – LRV 68.11
The PZC held a Special Meeting on August 13, 2013 to review these color samples, after visiting the site
prior to the meeting, and provide further direction or a decision on the proposed color scheme. The
applicant was represented by NAI Mountain Commercial at this meeting and again the PZC discussed their
concerns over the LRV for “Monterey White”. In addition, the alternative colors were discussed and the
concern was raised that each of these colors exceeded the maximum LRV allowed by code. Ultimately the
PZC approved the color change application with the following conditions and findings:
Conditions:
1. The Christy Sports Building is approved as proposed;
2. The Benchmark Shopping Center is approved as proposed; and,
3. The Annex building colors were approved as follows:
a. “Buckingham Gardens” was approved as proposed as an accent color;
b. “Branchport Brown” was approved as proposed as a roof color; and,
c. “Monterey White” was not approved, but “Manchester Tan” was approved as a base
color.
Findings:
1. The LRV for “Manchester Tan” was nominally outside the Design Standards;
2. The Annex building is a one story building and there will be minimal visual impact as compared to a
taller building;
3. “Manchester Tan” is substantially similar to what exists on the building today;
4. “Monterey White” was approved on the soffits of the Benchmark Shopping Center as it was
limited to the ceiling of the walkways and will have limited application.
The Applicant requested that he be allowed to present the proposed “Monterey White” color for the base
of the Annex building to the PZC to discuss their desire to utilize the color palate as originally proposed.
Staff prepared the review for a third meeting before the PZC on their August 20, 2013 meeting. The item
was continued to a future meeting as the Applicant was unable to attend the meeting.
Appeal
After this meeting, Staff was contacted by Chris Lafon, an attorney representing the applicant, to better
understand the process that had occurred to date and the required steps necessary to appeal the decision
of the PZC. Staff suggested to Mr. Lafon and the Applicant that an Appeal of the PZC decision would be a
more prudent step instead of presenting the same color to the PZC for a fourth time. The Applicant
ultimately decided to appeal the PZC decision (Exhibit B) and waived their right to a ten (10) day
notification by US Mail. Staff discussed the options for Town Council meetings and the September 24,
2013 meeting was chosen by the Applicant.
Review Criteria
Below are the Development Standards for building colors as stated in the Avon Municipal Code. Section
7.28.090(c), Generally Applicable Design Standards, outline the requirements for building materials and
colors as follows:
The Annex Building Color Change Appeal
September 24, 2013 Town Council Page 3 of 4
(3) Building Materials and Colors
(i) The use of high quality, durable building materials is required. Exterior walls shall be
finished with materials used in a manner sympathetic to the scale and architectural style of the
building.
(ii) Preferred materials reflect the Town’s sub alpine character such as native stone, wood
siding, masonry or timbers.
(iii) The following building materials and wall finishes are not permitted on the exterior of
any structure:
(A) asphalt siding,
(B) imitation brick,
(C) asbestos cement shingles or siding,
(D) imitation log siding, or
(E) plastic or vinyl siding.
(iv) The Planning and Zoning Commission shall consider newly developed materials in light
of subsections (i)-(iii), above, and make a determination about appropriateness.
(v) Indigenous natural or earth tones such as brown, tan, grey, green, blue, or red in muted,
flat colors with an LRV (Light Reflective Value) of sixty (60) or less are required.
(vi) The following colors are prohibited: neon, day-glow, fluorescent, reflective, and non-
earth tones.
(vii) All flues, flashing, and other reflective materials shall be painted to match and/or
appropriately contrast with adjacent materials.
The PZC and Town Council shall use the following review criteria as the basis for recommendations
on the Application:
§7.16.080(f), Development Plan
(1) Evidence of substantial compliance with the purpose of the Development Code as
specified in §7.04.030, Purposes;
(2) Evidence of substantial compliance with the §7.16.090, Design Review.
(3) Consistency with the Avon Comprehensive Plan;
(4) Consistency with any previously approved and not revoked subdivision plat, planned
development, or any other precedent plan or land use approval for the property as
applicable;
(5) Compliance with all applicable development and design standards set forth in this Code,
including but not limited to the provisions in Chapter 7.20, Zone Districts and Official Zoning
Map, Chapter 7.24, Use Regulations, and Chapter 7.28, Development Standards; and
(6) That the development can be adequately served by city services including but not limited
to roads, water, wastewater, fire protection, and emergency medical services.
§7.16.090(f), Design Review
(1) The design relates the development to the character of the surrounding community; or,
where redevelopment is anticipated, relates the development to the character of Avon as a
whole;
(2) The design meets the development and design standards established in this
Development Code; and
(3) The design reflects the long range goals and design criteria from the Avon
Comprehensive Plan and other applicable, adopted plan documents.
The Annex Building Color Change Appeal
September 24, 2013 Town Council Page 4 of 4
§7.16.120(d), Alternative Equivalent Compliance
(1) The proposed alternative achieves the intent of the subject design or development
standard to the same or better degree than the subject standard;
(2) The proposed alternative achieves the goals and policies of the Avon Comprehensive
Plan to the same or better degree than the subject standard;
(3) The proposed alternative results in benefits to the community that are equivalent to or
better than compliance with the subject standard; and
(4) The proposed alternative imposes no greater impacts on adjacent properties than
would occur through compliance with the specific requirements of this ordinance.
Council Action
The Town Council shall review the request by the Applicant and determine if they would like to follow one
the following actions:
1. Uphold the PZC decision and not approve the “Monterey White” color.
2. Overturn the PZC decision and approve the “Monterey White” color through the approval of the
“Minor Design and Development” application and “Alternative Equivalent Compliance”
application.
Attachments
A. Proposed Application presented to the PZC: including Color Samples, Photos of the paint samples,
and AEC request from the Applicant;
B. Appeal Letter
Date: July 30, 2013
Subject: Color Modification for Avon Properties
Part I: Written Description of “color modification” for the Benchmark Shopping Center,
Annex and Christy Sports buildings:
Benchmark Shopping Center
-Base color: Mexicana 2172-30
-Trim color: Branchport Brown HC-72
-Accent on ceiling and walkways: Monterey White HC-27
Annex
-Base color: Monterey White HC-27
-Trim and accent color: Buckingham Gardens 545
-Roof color: Branchport Brown HC-72
Christy Sports
-Trim and accent color: Branchport Brown HC-72
Part II: Response to Review Criteria
(d) Review Criteria. The review authority shall use the following review criteria as the
basis for a decision on an application for alternative equivalent compliance:
(1) The proposed alternative achieves the intent of the subject design or
development standard to the same or better degree than the subject standard;
(2) The proposed alternative achieves the goals and policies of the Avon
Comprehensive Plan to the same or better degree than the subject standard;
(3) The proposed alternative results in benefits to the community that are
equivalent to or better than compliance with the subject standard; and
(4) The proposed alternative imposes no greater impacts on adjacent properties
than would occur through compliance with the specific requirements of this
ordinance.
Attachment A
Response: Hoffmann Commercial Real Estate has identified areas in its existing “Avon
Real Estate Portfolio” where drastic improvement must be made. One of the areas identified
is the repainting of its properties with a more cohesive color palette. We have utilized
professional, local expertize via Worth Interiors to establish a color scheme that is consistent
with Avon’s look, feel and core values. The color “Monterey White HC-27” is crucial in
accomplishing our goals and we are thus requesting a waiver of the required Light Reflective
Value of 60 to allow a LRV of 77.32 represented by the Monterey White.
Best regards,
Greg Hoffmann
Principal
Attachment A
Benjamin Moore “Mexicana” (2172-30) – LRV: 11.9
Benjamin Moore “Branchport Brown” (HC-72) – LRV: 7.58
Attachment A
Benjamin Moore “Buckingham Gardens” (545) – LRV: 30.2
“White” Color options
1. Benjamin Moore “Monterey White” (HC-27) – LRV: 77.32
2. Benjamin Moore “Manchester Tan” (HC-81) – LRV 63.69
Attachment A
3. Benjamin Moore “White Sand” (OC-10) – LRV 68.11
Attachment A
Attachment A
Attachment A
Attachment A
Attachment A
At
t
a
c
h
m
e
n
t
B
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 Heil, Town Attorney
RE: Ordinance 13-12 AN ORDINANCE AMENDING CHAPTER 9.16 OF THE AVON
MUNICIPAL CODE REGARDING MARIJUANA POSSESSION AND USE
DATE: September 19, 2013
Summary: Attached is Ordinance No. 13-12 which amends portions of Chapter 9.16 concerning possess,
use, transfer and sale of marijuana. Ordinance No. 13-12 is presented in order to reconcile the Avon
Municipal Code with the constitutional amendments enacted by Amendment 64 legalizing marijuana
possession and consumption. Ord. No. 13-12 was approved the Avon Town Council on September 11,
2013 and is presented for second reading. The Avon Town Council must conduct a public hearing on
second reading in accordance with the Avon Home Rule Charter. The concurring vote of 4 Council
members is required to pass an ordinance per the Avon Home Rule Charter.
Background: Amendment 64 Use and Regulation of Marijuana was approved by the Colorado voters on
November 6, 2012 and amends Article XVIII of the constitution of the State of Colorado to establish a new
Section 16. Personal use and regulation of marijuana. Avon, as a home rule community, cannot
supersede the constitution of the State of Colorado, therefore, Ordinance No. 13-12 is presented to amend
those provisions of the Avon Municipal Code which are in conflict with Section 16 of Article VIIII of the
Colorado constitution. The full text of Amendment 64 is included with this memorandum for your
convenience. Chapter 9.16 of the Avon Municipal Code was previously amended by Ordinance No. 10-12
to reconcile the Avon Municipal Code with the medical marijuana amendment to the Colorado
constitution, Article XVIII, Section 14 Medical use of marijuana for persons suffering from
debilitating medical conditions.
Overview of Changes: Unlawful acts are now defined in their own Section 9.16.070 and include:
1. Possession and use of marijuana for those under 21 years of age.
2. Possession, use and display of more than one ounce of marijuana.
3. Possession and cultivation of more than 6 marijuana plants.
4. Consumption of marijuana in public.
5. Consumption of marijuana on any property without permission of the property owner.
6. The existing code defined cannabis, the proposed revisions incorporate the constitutional
definition of marijuana and replaces cannabis with marijuana where applicable.
Policy Issues: Council should give consideration to the following policy issues presented in this Ordinance
for first reading, including:
1. Consumption of marijuana in public – the proposed language further defines consumption in
public to include consumption on Town property, consumption in private vehicles on Town right-
of-ways, and consumption in any place or property open to the general public. The language in
Sec. 16, Art XVIII, Colo. Const. states in (3)(d) that marijuana consumption is allows for person
over 21 “provided that nothing in this section shall permit consumption that is conducted openly
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Ordinance No. 13-12 Amending Chapter 9.16
September 19, 2013
Page 2 of 2
and publicly or in a manner that endangers others.” At this point there is little legal guidance as
to how “consumption that is conducted openly or publicly” will be construed; however, it is
generally acceptable for municipalities to interpret constitutional provisions so long as the local
interpretation is not in direct conflict with the constitutional provision. It is possible for Council to
broaden or narrow the interpretation of “consumption that is conducted openly or publicly.”
2. Consuming marijuana on any property without the permission of the property owner –
This provision is presented as an unlawful activity in order for the Town to have more specific
authority to respond to complaints in the lodging community. Sec. 16, Art XVIII Colo. Const. does
not authorize consumption of marijuana on private property without permission of the property
owner. Council should consider whether the Town desires the ability to respond to potential
complaints at lodging establishments which may prohibit smoking versus taking the position that
consumption of marijuana without property owner permission is a civil matter. The Town has
adopted regulations for general smoking in Chapter 8.25 which can be helpful and reinforcing but
does not capture the nuisance of some hotels which may permit rooms with tobacco smoking but
may not permit marijuana consumption (see AMC Sec. 8.25.100(a)(2) allowing smoking in Hotel
and Lodging Rooms).
3. Ordinance No. 13-11 Moratorium – If the Avon Town Council adopts regulations permit
commercial recreational marijuana and medical marijuana activities, then Avon Municipal Code
Sec. 9.12.080 will need to be revised to state that such activities are lawful.
Chief Ticer has forwarded Ordinance No. 13-12 to the District Attorney for review and comment.
Proposed Action: Approve Ordinance No. 13-12 on second and final reading.
Proposed Motion: “I move to approve second and final reading of Ordinance No. 13-12 AN ORDINANCE
AMENDING CHAPTER 9.16 OF THE AVON MUNICIPAL CODE REGARDING MARIJUANA
POSSESSION AND USE.”
Attachments:
• Ordinance No. 13-12
• Text of Amendment 64
Thanks, Eric
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 1 of 6
TOWN OF AVON, COLORADO
ORDINANCE NO. 13-12
SERIES OF 2013
AN ORDINANCE AMENDING CHAPTER 9.16 OF THE AVON
MUNICIPAL CODE REGARDING MARIJUANA POSSESSION AND USE
WHEREAS, the voters of Colorado approved Amendment 64 by a majority of the votes
cast, which amended Article XVIII of the Constitution of the State of Colorado by adding a new
Section 16; and
WHEREAS, Amendment 64 allows the possession, use, display, purchase or transportation
of one ounce or less of marijuana or marijuana accessories by a person twenty-one years of age
or older; and
WHEREAS, Amendment 64 allows possessing, growing, processing, or transporting no
more than six marijuana plants, with three or fewer being mature, flowering plants, and
possession of the marijuana produced by the plants on the premises where the plants were grown,
provided that the growing takes place in an enclosed, locked space, is not conducted openly or
publicly, and is not made available for sale; and
WHEREAS, Amendment 64 allows local governments to prohibit the possession of
marijuana and marijuana accessories by persons under the age of twenty-one years and to
prohibit the open and public consumption of marijuana by persons of any age; and
WHEREAS, it is the Town Council’s opinion that the health, safety and welfare of the
citizens of the Town of Avon would be enhanced and promoted by the adoption of this
ordinance; and
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the
Town Council desires to comply with state law, the Avon Municipal Code and the Avon Home
Rule Charter by setting a public hearing in order to provide the public an opportunity to present
testimony and evidence regarding the application and that approval of this Ordinance on first
reading does not constitute a representation that the Town Council, or any member of the Town
Council, supports, approves, rejects, or denies the proposed amendment to the Avon Municipal
Code.
NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Amendment to Avon Municipal Code Chapter 9.16. Chapter 9.16 of the Avon
Municipal Code is hereby amended to read as follows:
A. Section 9.16.060 is repealed in its entirety and reenacted to read as follows:
“9.16.060 Marijuana, Marijuana Products and Marijuana accessories defined.
Marijuana or marihuana means all parts of the plant of the genus cannabis whether growing
or not, the seeds thereof, the resin extracted from any part of the plant, and every compound,
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 2 of 6
manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin,
including marihuana concentrate. Marijuana or marihuana does not include industrial hemp,
nor does it include fiber produced from the stalks, oil, or cake made from the seeds of the
plant, sterilized seed of the plant which is incapable of germination, or the weight of any
other ingredient combined with marijuana to prepare topical or oral administrations, food,
drink, or other product.
Marijuana accessories means any equipment, products, or materials of any kind which are
used, intended for use, or designed for use in planting, propagating, cultivating, growing,
harvesting, composting, manufacturing, compounding, converting, producing, processing,
preparing, testing, analyzing, packaging, repackaging, storing, vaporizing, or containing
marijuana, or for ingesting, inhaling, or otherwise introducing marijuana into the human
body.
Marijuana products means concentrated marijuana products and marijuana products that are
comprised of marijuana and other ingredients and are intended for use or consumption, such
as, but not limited to, edible products, ointments, and tinctures.”
B. Section 9.16.070 is repealed in its entirety and reenacted to read as follows:
“9.16.070 Unlawful Acts Concerning Marijuana Designated.
The following acts are declared to be unlawful and in violation of this Chapter 9.16:
(a) Possessing, using, cultivating, selling, distributing, transferring or to attempting to sell,
distribute, transfer, obtain or procure marijuana for any person under twenty-one (21)
years of age.
(b) Possessing, using, displaying, purchasing, or transporting more than one ounce of
marijuana.
(c) Possessing, growing, processing, or transporting more than six (6) marijuana plants.
(d) Consuming marijuana in a manner that is conducted openly and publicly or in a manner
that endangers others, including but not limited to consumption on any Town property,
Town Hall, Town parks, the Avon Recreation Center, open space lands owned by the
Town of Avon, sidewalks, streets (including consumption in private vehicles on Town
streets), trails and other public right-of-ways, and consumption in any place or property
open to the general public, whether by permission, license, fee, charge or membership.
(e) Consuming marijuana on any property without the permission of the property owner.”
C. Section 9.16.080 is repealed in its entirety and reenacted to read as follows:
“9.16.080 Lawful Acts Concerning Marijuana Designated.
The following acts are declared to be lawful:
(a) It shall not be unlawful and it shall be an affirmative defense to criminal prosecution
under this Section for a medical marijuana patient or primary care-giver, as defined in
Section 14 of Article XVIII of the State Constitution, to possess, use and obtain medical
marijuana, when such medical marijuana patient or primary care-giver is fully and
currently compliant with all applicable state laws, regulations and licensing requirements
concerning medical marijuana, provided that such possession or use is not displayed
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 3 of 6
publicly or in a manner which can be seen by the general public, does not occur on
property owned or possessed by the Town and does not occur upon property without
permission of the property owner.
(b) Notwithstanding any other provision of law, the following acts are not unlawful for
persons twenty-one (21) years of age or older:
(1) Possessing, using, displaying, purchasing, or transporting marijuana accessories or
one ounce or less of marijuana.
(2) Possessing, growing, processing, or transporting no more than six (6) marijuana
plants, with three (3) or fewer being mature, flowering plants, and possession of the
marijuana produced by the plants on the premises where the plants were grown, provided
that the growing takes place in an enclosed, locked space, is not conducted openly or
publicly, and is not made available for sale.
(3) Transfer of one (1) ounce or less of marijuana without remuneration to a person who
is twenty-one (21) years of age or older.
(4) Consumption of marijuana, provided that nothing in this section shall permit
consumption that is conducted openly and publicly or in a manner that endangers others.
(5) Assisting another person who is twenty-one (21) years of age or older in any of the
acts described in paragraphs (1) through (4) of this subsection.”
D. Section 9.16.100 is repealed in its entirety and reenacted to read as follows:
“9.16.100 Penalty for Violation.
Any person who violates any provision of this Chapter 9.16 is guilty of a misdemeanor and
upon conviction thereof shall be punished in accordance with the provisions of Section
1.08.010 of this Code.”
E. Section 9.16.115 is hereby amended by repealing and adding the following language,
which repealed language is depicted with strikethrough and which added language is
depicted with double underlining, so that the section shall read in its entirety, and is
hereby adopted in its entirety, as follows:
“(a) Drug paraphernalia means all equipment, products and materials of any kind which are
used, intended for use or designed for use in planting, propagating, cultivating, growing,
harvesting, manufacturing, compounding, converting, producing, processing, preparing,
testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting,
ingesting, inhaling or otherwise introducing into the human body a controlled substance in
violation of state law. Drug paraphernalia includes, but is not limited to:
(1) Testing equipment used, intended for use, or designed for use in identifying or in
analyzing the strength, effectiveness or purity of controlled substances under
circumstances in violation of state law;
(2) Scales and balances used, intended for use or designed for use in weighing or
measuring controlled substances;
(3) Separation gins and sifters used, intended for use or designed for use in removing
twigs and seeds from or in otherwise cleaning or refining marijuana;
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 4 of 6
(4) Blenders, bowls, containers, spoons and mixing devises used, intended for use or
designed for use in compounding controlled substances;
(5) Capsules, balloons, envelopes and other containers used, intended for use or
designed for use in packaging small quantities of controlled substances;
(6) Containers and other objects used, intended for use or designed for use in storing or
concealing controlled substances; or
(7) Objects used, intended for use or designed for use in ingesting, inhaling or
otherwise introducing marijuana, cocaine, hashish or hashish oil such as:
a. Metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without
screens, permanent screens, hashish heads or punctured metal bowls,
b. Water pipes,
c. Carburetion tubes and devices,
d. Smoking and carburetion masks,
e. Roach clips, meaning objects used to hold burning material, such as a
marijuana cigarette that has become too small or too short to be held in the hand,
f. Miniature cocaine spoons and cocaine vials,
g. Chamber pipes,
h. Carburetor pipes,
i. Electric pipes,
j. Air-driven pipes,
k. Chillums,
l. Bongs, or
m. Ice pipes or chillers.
(b) Marijuana accessories are excluded from the definition of drug paraphernalia.”
F. Section 9.16.119 is hereby amended by adding the following language, which added
language is depicted with double underlining, so that the section shall read in its entirety,
and is hereby adopted in its entirety, as follows:
“A person commits possession of drug paraphernalia if he or she possesses drug
paraphernalia and knows or reasonably should know that the drug paraphernalia could be
used under circumstances in violation of state law. It shall not be unlawful and shall be a
defense to prosecution if a person twenty-one (21) years of age or older possesses marijuana
accessories.”
Section 3. Codification Amendments. The codifier of the Town’s Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations, provided that such correction shall not
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 5 of 6
substantively change any provision of the regulations adopted in this Ordinance. Such
corrections may include spelling, reference, citation, enumeration, and grammatical errors.
Section 4. Severability. If any provision of this Ordinance, or the application of such
provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall
not affect other provisions or applications of this Ordinance which can be given effect without
the invalid provision or application, and to this end the provisions of this Ordinance are declared
to be severable. The Town Council hereby declares that it would have passed this Ordinance and
each provision thereof, even though any one of the provisions might be declared unconstitutional
or invalid. As used in this Section, the term “provision” means and includes any part, division,
subdivision, section, subsection, sentence, clause or phrase; the term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after public
notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that
this Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to
release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or
affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability
incurred, or any cause or causes of action acquired or existing which may have been incurred or
obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any
such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall
be treated and held as remaining in force for the purpose of sustaining any and all proper actions,
suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and
for the purpose of sustaining any judgment, decree or order which can or may be rendered,
entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or
declaring such penalty or liability or enforcing such right, and shall be treated and held as
remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and
appeals pending before any court or administrative tribunal.
Section 8. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by
posting notice of adoption of this Ordinance on final reading by title in at least three public
places within the Town and posting at the office of the Town Clerk, which notice shall contain a
statement that a copy of the ordinance in full is available for public inspection in the office of the
Town Clerk during normal business hours.
[Execution Page Follows]
Ord 13-12 Amending Ch. 9.16
Sept. 4, 2013 DRAFT
Page 6 of 6
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED
AND REFERRED TO PUBLIC HEARING and setting such public hearing for September 24,
2013 at the Council Chambers of the Avon Municipal Building, located at One Lake Street,
Avon, Colorado, on September 10, 2013.
____________________________
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 J. 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
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Danita Dempsey, Special Event Supervisor
Date: September 19, 2013
Topic: 2014 Special Event Admission Ticket Fee
Background
On July 11th Town Council approved the “seeding” of the second annual Winter Wonder Grass three-day music
festival to take place February 21 – 23, 2014. At the meeting the Town Council concurred a “special event ticket
fee” should be considered. The fee would be used to fund needed equipment and facilities for special events and
to cover direct expenses of the Town in the production of special events. Initially, and over time, a ticket fee to
support facilities and equipment is an appropriate assessment on the users.
In reviewing General Fund Revenue projections at Council work session on September 10th, the Council directed
staff to prepare the necessary resolution to adopt an Admission Ticket Fee.
Summary of Resolution 13-26 - A Resolution Imposing a Ticket Fee On Paid Admissions For Events Held on Town-
owned Properties and Dedicating the Use of Fees Collected for Certain Improvements and Uses
Ticket Fee on Paid Admissions for Events Held on Town-owned Property
1. The fee imposed shall be $2.00 per person/per day
single-day ticket type $2.00
two-day ticket type $4.00
three-day ticket type $6.00
2. The fee shall be clearly labeled on all ticket types to include but not limited to paid, free, complimentary,
vendor and volunteer ticket types
3. The fee shall be collected by the special event permit holder and remitted to the Town per
Resolution #13-26.
Use of Fee Proceeds
The proceeds of all admissions fees collected by the Town shall be deposited into the Parks & Recreation
budget identified by a new line item “Admission Ticket Fee Reserve”.
A new expense line item will be identified in the Parks & Recreation budget, “Admission Ticket Fee Uses”.
The events currently planned or in process for 2014 for which the Admission Fee would apply are:
Winter Wonder Grass – Feb. 21-23, 2014
Reds, Whites & Brews – June 27-28, 2014
Council Action – Staff recommend Council pass, by motion and vote, the attached Resolution #13-26.
Resolution 13-26 Admission Ticket Fee
September 24, 2013
Page 1 of 3
TOWN OF AVON, COLORADO
RESOLUTION NO. 13-26
SERIES OF 2013
A RESOLUTION IMPOSING AN ADMISSION TICKET FEE ON TICKETS FOR EVENTS HELD ON TOWN
PROPERTY AND DEDICATING THE USE OF FEES COLLECTED FOR CERTAIN IMPROVEMENTS AND USES
WHEREAS, the Avon Town Council has identified “Special Events” as a strategic priority to improve the
Town of Avon’s economic condition and to add to the quality of life for Avon residents and tourists; and,
WHEREAS, the Town may regulate the use of Town parks, special event areas and other Town owned
property in accordance with the Town’s home rule authority, state statute and Chapter 9.40 of the Avon
Municipal Code;
WHEREAS, the Avon Town Council supports the passage of an Admission Ticket Fee that would be
levied on all admission based special event(s) as an appropriate revenue source to fund capital facilities,
equipment and infrastructure improvements for Special Events and, when appropriate, to defray Town of
Avon expenditures in support of a special event; and to provide direction for the accounting of the revenue
and expenditure of the admission ticket fees collected.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the
following:
Section 1 - Admissions Fee Established. An “Admission Ticket Fee” is hereby established which shall be
levied on every ticket for admission to a special event held on Town property for which a charge for
admission is imposed by the holder of the special event permit (“Vendor”). Any person who purchases or
accepts an admission to a special event on Town property, including but not limited to Nottingham Park,
other Town parks, public right-of-ways, or parking lots, is exercising a privilege of admission. Every special
event Vendor who charges a price for admission to such special event to the general public shall collect the
Admission Ticket Fee imposed by this Resolution in the manner set forth herein. The Town Manager may
waive all or a portion of the Admission Ticket Fee for a specific special event if the Town Manager finds in
the Town Manager’s discretion that such waiver (1) will promote the viability of the special event, (2) will
promote accessibility of Avon community to the special event, (3) is appropriate in that the impacts of the
special event do not warrant the Admission Ticket Fee, or (4) the Vendor proposes such other terms,
payments or benefits which equal or exceed the benefit of the Admission Ticket Fee.
Beginning on the date of this Resolution, the following Admission Ticket Fee shall be levied person per
ticket sold or provided as a complimentary admission:
• Ticket for single day admission = $2.00
• Ticket for two-day admission = $4.00
• Ticket for three-day admission = $6.00
Section 2 - Collection and Remittance of Admission Ticket Fee.
(a) The Vendor of a special event who imposes and collects a charge for admission to attendees, or any
portion of attendees, shall impose and collect the Admission Ticket Fee on every ticket for admission to the
special event, including any tickets or privilege of admission that are provided on a complimentary to a
special event for which a charge is imposed on other attendees. The Admission Ticket Fee shall be deemed
to be held in trust by the Vendor required to collect the Admission Ticket Fee until remitted to the Finance
Resolution 13-26 Admission Ticket Fee
September 24, 2013
Page 2 of 3
Director according to the provisions of this Resolution. The Admission Ticket Fee shall be collected at the
time the admission charge is paid or at the time a complimentary ticket or privilege of admission is granted
to an attendee.
(b) Every Vendor collecting an Admission Ticket Fee shall file with the Finance Director within thirty
(30) days following the last day of the special event for which an Admission Ticket Fee is levied a statement
indicating the total number of tickets and privilege of admission to the special event issued to attendees,
the total amount of the Admission Ticket Fees collected by ticket type during the admissions sale period
and such further information as the Finance Director may deem necessary to determine the amount of the
Admission Ticket Fees collected and payable. The Vendor shall remit the entire amount of the Admission
Ticket Fee collected with the statement.
Section 3 – Exclusions. The Admission Ticket Fee shall not be payable by the following attendees if
admitted to any festival/special event without charge. The Town Manager may limit the numbers of each
type of attendee admitted without charge.
(a) A bona fide officer or employee of the Vendor of the special event;
(b) Any federal, state, city, county or Town official employee attending the event on official
business;
(c) Any person whose admission to such special event is required for the performance of some
duty or work for the operator of such special event;
(d) Any newspaper reporter, photographer, telegrapher, radio announcer or person performing a
similar vocation who is admitted for the performance of special duties in connection with the
special event and whose special duties are the sole reason for his or her presence; and/or
(e) A child under thirteen (13) years of age, who is admitted without charge.
Section 4 - Failure to Remit; Penalties for Non-Payment. Every Vendor required to collect an Admission
Ticket Fee who fails to collect the applicable Admission Ticket Fee or any portion thereof shall be liable to
the Town for the amount of the Admission Ticket Fee plus a penalty of fifteen percent (15%) of the total
amount due plus interest on the amount due and penalty at the rate set forth in Chapter 3.32 of the Avon
Municipal Code plus any costs of collection incurred by the Town.
Section 5 – No Assumption of Admission Ticket Fee. The Vendor of special events shall agree that the
Vendor shall not represent that the Admission Ticket Fee will be assumed or absorbed by the Vendor, that
Admission Ticket Fee will not be added to the selling price of the admission sold or, if added, that it or any
part thereof will be refunded.
Section 6 - Printing of Admission Ticket Fee on Ticket. On each admission ticket, wristband or card sold,
the following words or their equivalent identifying the amount of Admission Ticket Fee levied shall be
conspicuously and indelibly printed, written or stamped on the face or back of that part of the ticket which
is sold by the Vendor: “Town of Avon Admission Ticket Fee $2 per Day.”
Section 7 - Determination of Fee Due. If any Vendor required to collect and remit the Admission Ticket Fee
fails to file a statement and a remittance, or if the Town Manager has reasonable cause to believe that an
erroneous statement has been filed, the Town Manager may proceed to determine the amount due to the
Town and, in connection therewith, shall make such investigations and take such testimony and other
Resolution 13-26 Admission Ticket Fee
September 24, 2013
Page 3 of 3
evidence as may be necessary. The Town shall provide at least six (6) days prior written notice to the
Vendor before conducting an administrative hearing and shall provide an opportunity for the Vendor to
provide testimony and evidence before the Town Manager renders a final decision.
Section 8 - Right of Inspection and Audit. It shall be the duty of every Vendor to keep and preserve
suitable records of all ticket types sold and such other books or accounts as may be necessary to determine
the amount of the Admission Ticket Fee for the collection or payment of which the Vendor is liable. The
Town Manager may make, or cause to be made the examination, inspection or audit of books, invoices,
accounts and other records so kept or maintained by such Vendor.
Section 9 - Collection and Payment of Disputed Fee. Should a dispute arise between the purchaser and the
Vendor or between Vendor and the Town Manager as to whether the sale of admission is exempt under
this Resolution, the Vendor, shall collect and the purchaser shall pay the Admission Ticket Fee, and the
Vendor or purchaser shall thereupon issue a receipt or certificate, showing the names of the purchaser and
Vendor, the date, price and amount of Admission Ticket Fee paid, and a brief statement of the claim of
exemption. The purchaser or Vendor may apply to the Town Manager for a refund of such fees, and it shall
be the duty of the Town Manager to thereupon determine the question of exemption and to provide for a
refund if necessary.
Section 10 – Incorporation into Special Events Permit or Contract. The terms of this Resolution shall be
referenced and incorporated into any special events permit or contract for special events along with such
other terms as may be deemed appropriate and necessary for the administration and enforcement of the
Admission Ticket Fee.
Section 11 - Town of Avon use of Admission Ticket Fees.
(a) All Admission Ticket Fee revenues collected shall be utilized for special event related capital
facilities, equipment and infrastructure improvements, including but not limited to:
(i) Acquisition of assets for special events such as tenting, fencing, cord channels, staging,
resource recovery, directional signage, or generators/turtle box.
(ii) Improvement in park and Town-owned facility infrastructure such as type and location of
power, resource recovery, warm water access, grey water and grease disposal receptacles,
materials for conversion of facilities for various event types, and field and trail
improvements..
(b) The Admission Ticket Fee revenues, with Town Manager approval, may be used to defray police,
public transportation and traffic control costs when provided by the Town as an in-kind benefit for
the special event.
ADOPTED THIS 24TH DAY OF SEPTEMBER, 2013.
TOWN COUNCIL: ATTEST:
________________________________ __________________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
TOWN COUNCIL REPORT
To: Honorable Mayor and Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Re: Resolution Adopting 2013-2014 Strategic Plan – 2014 Work Plan
Resolution 13-27 adopts the Town’s 2013-2014 Strategic Plan – 2014 Work Plan, with the revisions identified by the
Town Council at your Work Session at the September 10, 2013 meeting. In addition, I have added the
annexation and zoning of the new Village Parcel in east Avon.
The following items have been incorporated into the 2014 Work Plan since the Work Session:
Business Like-Practices and Culture:
The external and internal community surveys were moved to 1st Quarter, for development of the surveys,
and the 2nd Quarter, for distribution and analysis, so the Planning and Zoning Commission can add survey
questions and use the results for drafting comprehensive plan amendments.
Economic Development includes the addition of the following items:
Process Annexation and Zoning applications for the 85.99 acre “Village Parcel” deeded to the Town
through the Eagle Valley Land Exchange of 2013.
Compile “Avon Business Summary Report”, which provides information about the characteristics of
Avon’s various business sectors, including inventory of retail and commercial spaces occupancy and
vacancy data, and leasing rates, to use as basis for partnering with the business community in attracting
and expanding business in Avon.
Create marketing package for new business development.
Research and evaluate opportunities and structure for creating an Avon Creative Arts District.
The document is the principal guideline for preparing the 2014 budget and for directing the work activities of
the Town of Avon staff and Council. The Council is asked to review this plan and, if acceptable, adopt the plan
with Resolution No. 13-27.
TOWN OF AVON, COLORADO
RESOLUTION NO. 13-27
SERIES OF 2013
RESOLUTION ADOPTING TOWN OF AVON 2013 - 14 STRATEGIC PLAN
AND 2014 WORK PLAN
WHEREAS, the Avon Town Council agreed to commit to the highest level of fiduciary
responsibility, effectiveness and efficiency in providing government services and an
attentive practice to open and transparent governance to lead the successful
implementation of strategic plans for growth and development of Avon; and
WHEREAS, the Avon Town Council has set forth its direction in the attached 2013-14
Strategic Plan and 2014 Work Plan, which establishes priorities and actions, with attention to
be given first to the following topics: Business and Culture of Town Hall, Economic
Development, Village at Avon Partnership, Special Events, 2015 World Alpine Championships,
Water Issues, and Transit Consolidation; and
WHEREAS, the Avon Town Council has reviewed this 2014 Work Plan at its regular
Town Council meeting on September 24, 2013 in order to identify updates to the priorities
and to add new initiatives: and, at that meeting provided an opportunity for the public to
comment on these Town priorities and direction for 2014; and
WHEREAS, the Town Council has committed to timely review of the 2013-14 Strategic
Plan and 2014 Work Plan, and agrees to commit to quarterly reviews of the progress of the
Strategic Plan in 2014.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO, the Avon Town Council adopts the 2013-14 Strategic Plan and 2014 Work Plan,
attached as Exhibit A, as a critical implementation tool to help guide the Town in achieving a
successful and vibrant vision for the growth and development of Avon.
ADOPTED AND APPROVED by the Avon Town Council 24th day of September 2013.
By: _________________________________ Attest: ____________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
1
EXHIBIT A
2013-14 STRATEGIC PLAN
2014 WORK PLAN
Adopted by the Avon Town Council
Resolution 13-27, Series of 2013
September 24, 2013
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
2
Overview
The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths
to become a nationally and internationally recognized year-round mountain resort community. Committed
to providing a high level of municipal services for our citizens and visitors, and the stewardship of our natural
resources, Avon will expand its cultural, recreational and educational offerings in partnership with our
broader community and regional public and private sector agencies, thereby ensuring sustained economic
vitality and a vibrant community experience.
Recent resort-oriented accommodations projects in Avon are of a higher standard than the Town attracted
at its founding and in its early years. It is this superior level of quality development that Avon believes will be
its comparative advantage in the future, and, therefore, will work to attract and promote these types of
developments by ensuring Town plans and incentives are constructed in a manner which provides the
development community clear and timely information; and by steadfastly maintaining a professional and
solution-oriented municipal business.
The Town will continue to value and support our full-time and part-time resident population by providing an
exceptional level of municipal services and by working to retain existing businesses as the Town seeks to
expand its retail and commercial base, while fostering our sense of community through both our spirit and
the built environment. The importance of vibrancy and activity within the Town will be supported by
attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the
values of our community and serve to nurture a cohesive sense of place and public.
It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and
efficiency in providing government services and a practiced belief in open and transparent governance that
will lead the successful implementation of this vision for the growth and development of Avon.
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
3
Strategic Plan Fiscal Years 2013 - 2014
Tier 1 Priority: Fiscal Year 2013-2014
1) Develop Business-like Practices and Culture of Town Hall – Ensure that Town government is operated as
a “competitive” business and in a manner which is client-focused and solution-oriented, meeting the
highest standards of fiduciary responsibility, implementing best practices, and using Town resources
effectively and efficiently in every department.
Tier 2 Priorities: Fiscal Year 2013-2014
2) Economic Development – Ensure that the Town of Avon is prepared for new development and re-
development. Evaluate Urban Renewal Authority expansion and other incentives to promote quality
development of a high standard; update the Avon Comprehensive Plan as needed and work closely with
the Planning and Zoning Commission to understand respective roles so that developers have a good
sense of what can and what cannot be negotiated.
3) Village at Avon Partnership – Meet with representatives of the Village at Avon and the Traer Creek
Metropolitan District to develop understandings and trust necessary for the future development of the
Village. This outreach and communication is the responsibility of all elected and appointed officials and
the employees of the Town of Avon.
Tier 2 Priorities: Fiscal Years 2013-2014
4) Special Events – Identify near term opportunities for special events and develop a longer term special
events strategy. In March, hold a work session to establish the duties and membership of a Cultural Arts
and Special Events Commission to lead this effort for the Town. Be spontaneous, when appropriate.
5) 2015 World Alpine Championships – Planning for all three phases of this internationally renowned event
must be initiated: 1) Pre-event promotion and marketing; 2) Stellar events and promotion of Avon as a
place to return to need to be produced during the event; and 3) Post-event requires a follow-up
promotional plan to encourage and/or book guest return visits.
Tier 3 Priorities: Fiscal Years 2013- 2014
6) Water Issues – Identify water issues and develop a timetable and approach for resolution over the next
year or two; manage what can be done against higher priorities.
7) Transit Consolidation – Avon should be a leader in working to provide a consolidated transit operation in
the valley. With negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus
planning for the 2015 World Cup, begin to build on these opportunities for a longer term cooperative
partnership.
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
4
2014 Work Plan
Develop Business-like Practices and
Culture of Town Hall
Tier 1 Priority: Fiscal Years 2013 & 2014
Leader: Mayor Rich Carroll
Staff: Town Manager Virginia Egger
Ensure that Town government is managed and operated as a “competitive” business and in a manner which
is client-focused and solution-oriented, meeting the highest standards of fiduciary responsibility,
implementing best practices, and using Town resources effectively and efficiently in every department.
1st Quarter January – March 2014
1.1 Revise performance evaluations to reflect cultural goals and attributes of high performing employees.
1.2 Implement 2014 budgeted IT improvements; including MuniRev and electronic employee payroll system
to improve efficiencies
1.3 Finalize work plans for all departments for seasonal and 2014 budget operations
1.4 Hold a Council Retreat to review leadership, collaboration and communication
1.5 Review and provide amendments to the Municipal Code in regards to residency and for Council
qualifications such as marital status
1.6 Prioritize a Wildridge seasonal wild land fire program, including summer “hot shot” staffing, land use
regulations for new development to protect homes from wild land fire and community outreach for
current home to amend residential landscaping.
1.7 Draft and finalize internal Town Hall and external community performance surveys to measure Town
services and community desires (include questions in regards to Comprehensive Plan update
1.8 In June, distribute internal and external community surveys
2nd Quarter April – June 2014
2.1 Continue to review all Town departments to assess the necessity of tasks and functions, effectiveness
and efficiency in meeting department responsibilities, staffing levels, and future needs; evaluate
effectiveness of organizational changes implemented in 2013
2.2 Develop the 2014-15 Strategic Plan, and two year budget to implement the Plan
2.3 Schedule no less than four (4) staff training sessions on “competitive” business practices and fiduciary
responsibility
2.4 By early June, collect and analyze internal and external community surveys
3rd Quarter – July – September 2014
3.1 Hold a Council Retreat to review survey results, Council leadership, collaboration and communication;
update Strategic Plan
3.2 Mid-year 2014 budget review and amendment, if needed
4th Quarter October – December 2014
4.1 Review and update Strategic Plan
4.2 Budget preparation, hearings and adoption
4.3 Prepare 2015 Work Plans
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
5
2014 Work Plan
Economic Development
Tier 2 Priority: Fiscal Year 2013 & 2014
Leaders: Economic Development Subcommittee Councilors Todd Goulding and Chris Evans
Staff: Town Manager Virginia Egger, Community Development and Finance Department Staff
Ensure that the Town of Avon is prepared for new development and re-development. Evaluate the retail sale of
marijuana and make a final determination on whether sales should be allowed. Evaluate URA expansion and
other incentives to promote quality development of a high standard; update the Comprehensive Plan as needed
and work closely with the Planning and Zoning Commission to understand respective roles so that developers
have a good sense of public benefit expectations, incentives and minimum development requirements for
critical project elements, such as parking.
1st Quarter January – March 2014
1.1 Director of Economic Initiative joins Town staff.
1.2 Establish a Town of Avon Economic Development Council for the purposes of supporting existing businesses
in Avon and attracting new businesses and to support business vitality; develop an action plan.
1.3 Outreach to all Avon businesses to thank each for their commitment to Avon and to ask for their ideas on
business support by the Town
1.4 Through the year, update website data base and revenue software/spreadsheet system to assist with
statistical analysis of key metrics identification in collaboration with Avon businesses and regional economic
development committees; understand the demographic characteristics of visitors to the region.
1.5 Determine whether the Town of Avon should approve the retail sale of marijuana:
1.5.1 Collect information from the scientific community on the health benefits and risks of marijuana
consumption.
1.5.2 Identify possible appropriate locations for retail stores and zoning regulations
1.5.3 Analyze the financial tax estimates from retail sales
1.5.4 Define an education program for youth and adults in regards to legalized marijuana sales
1.6 Review and update the Town’s Private-Public Partnership Policy and investment Policy, as needed.
1.7 Implement the Town “brand”.
1.8 With Beaver Creek and other stakeholders, finalize a town-wide Parking and Transportation Plan, including
bicycle, pedestrianization, vehicle and alternate transit modes. The Plan should be developed in concert with
the Planning and Zoning Commission (PZC) and reviewed by the public prior to Council’s adoption action.
This Plan may extend into the 2nd Quarter
1.9 Review East Avon Town Center Plan with PZC and owner of properties in the Plan to identify pro/con of the
plan and to establish the priorities of both developer and Town in East Avon redevelopment. Begin Plan
amendment, if needed.
1.10 Develop the scope, public process, schedule for commencement and completion of the Comprehensive Plan
Update. including development of questions for the Community Survey, (June/August 2014)
1.11 Process Annexation and Zoning applications, including surveying and public notification requirements, for
the 85.99 acre “Village Parcel” deeded to Town trough the Eagle Valley Land Exchange of 2013.
1.12 Negotiate and finalize multi-year Comcast Franchise Agreement
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
6
Economic Development - continued
Tier 2 Priority: Fiscal Year 2013 & 2014
2nd Quarter April – June 2014
2.1 Compile “Avon Business Summary Report”, which provides information about the characteristics of Avon’s
various business sectors, including inventory of retail and commercial spaces occupancy and vacancy data,
and leasing rates, to use as basis for partnering with the business community in attracting and expanding
business in Avon.
2.2 Create marketing package for new business development.
2.3 Research and evaluate opportunities and structure for creating an Avon Creative Arts District.
2.4 If requested by the Town Council, evaluate expansion of URA into other qualified areas of Avon; if URA
expansion is desirable, solicit RFQ and identify budgetary needs
2.5 Identify with the Planning and Zoning Commission 2014 Code amendments, including “clean-up” of
definitions, charts, etc. identified through use of the Code over the past year and sections which should be
updated, and sections which should be updated, such as the sign code. Evaluate whether Wildridge should
be “zoned” rather than continuing to have a PUD Zone for the development.
3rd Quarter & 4th Quarter – July – December 2014
3.1 Comprehensive Plan Update; East Avon Plan Update – continuing public meetings and recommended changes.
3.2 Complete Code Clean-up
3.3 Evaluate opportunity for a “sister city/ international city” partnership
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
7
2014 Work Plan
Village at Avon Partnership
Tier 2 Priority - 2014
Leaders: Traer Creek Liaison Appointees Dave Dantas and Jennie Fancher
Staff: Town Manager Virginia Egger, Public Works, Parks,
Community Development and Engineering Staff
Meet with representatives of the Village at Avon and the Traer Creek Metropolitan District to develop
understandings and the trust necessary for the future development of the Village. This outreach and
communication is the responsibility of all elected and appointed officials and the employees of the Town of
Avon.
Throughout the year, Liaison Appointees and Town Manager will meet with Traer Creek principals to
discuss current issues and opportunities.
Town staff will finalize in the 1st Quarter the collection, consolidation and organization of all Village at
Avon documents, agreements and assignments within Town Hall. This project is considered 90%
complete.
The Community Development Department will be the primary contact and responsible party for
understanding and managing the Village at Avon settlement agreements, including “user”
summaries of all definite dates and responsibilities of the Town of Avon.
Implement the determined actions by the Avon Town Council in the 4th Quarter of 2013.
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
8
2014 Work Plan
Special Events
Tier 2 Priority – Fiscal Years 2013-2014
Leaders: Councilors Jake Wolf and Buz Reynolds
Staff: Town Manager Virginia Egger and Parks and Recreation Staff
Identify near term opportunities for special events and develop a longer term special events strategy. In
March, hold a work session to establish the duties and membership of a Cultural Arts and Special Events
Commission to lead this effort for the Town. Be spontaneous, when appropriate.
Beaver Creek Resort, with its recreational and cultural activities, is an important economic driver of the Avon
economy, offering a vast array of amenities which add to the richness of the day-to-day life of Avon
residents, the community and tourists. Avon will work closely to further build the relationship with Beaver
Creek Resort Company and Vail Resorts that supports business brands, the tourist economy and community
offerings, including but not limited meeting the transportation, security and amenity needs of a mature
resort and community.
1st Quarter January – March 2014
1.1 Establish a Cultural, Arts and Special Events Commission to promote and assist with the production of
recreational, cultural, educational and social events; refine and develop a Special Events Strategic Plan
with the participation of the business community
1.2 Support the WinterWonderGrass Festival under the terms of the approved agreement; analyze ROI &
ROO (return on objectives) within 60 days of the event
1.3 Finalize design and construction bid documents for the Pedestrian Mall improvements
2nd Quarter April – June 2014
2.1 Implement actions for Summer 2014 Special Events
2.2 For all events; analyze ROI/ROO within 60 days of the event
2.3 Commence construction of Pedestrian Mall; expected completion date is November, 2014
3rd Quarter – July – September 2014
3.1 Implement actions for Fall 2014 new Special Events, analyze ROI within 60 days of the event
3.2 Solicit funding requests for 2015 Special Events: Cultural, Arts and Special Events Commission will
recommend funding levels to Town Council
4th Quarter October – December 2014
4.1 Implement actions for Winter 2015 Special Events, analyze ROI/ROO within 60 days of the event
4.2 Budget for 2015 Special Events
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
9
2014 Work Plan
2015 World Alpine Championships – February 3 – 15, 2015
Tier 2 Priority: Fiscal Years 2014-2014
Leader: Mayor Rich Carroll and Mayor Pro Tem
Staff: Town Manager Virginia Egger, Transportation,
Police and Parks and Recreation Staff
Planning for all three phases of this internationally renowned event must be initiated: 1) Pre-event
promotion and marketing; 2) Production of stellar events and promotion of Avon as a place to return to
need to be produced during the event; and 3) Post-event requires a follow-up promotional plan to
encourage and/or book guest return visits.
1st Quarter January – March 2014
1.1 Identify Town staff participation to date and current participation activities
1.2 Advance Après Avon program with Vail Valley Foundation Ceil Folz
1.3 Commence design and bids for 2015 capital projects: Avon Road paving and divider improvements; Rec
Center improvements and monument sign
1.4 Meet with representatives of Avon lodging community to discuss opportunities for 2015
1.5 Finalize comprehensive action plan for special events, marketing, logistics, security, sponsorship,
partnerships
2nd Quarter & 3rd Quarter – April – September 2014
2.1 Commence implementation; including final funding and logistics
2.2 Evaluate value of promotional video and social media in marketing Avon
4th Quarter October – December 2014
4.1 Continue implementation of plan
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
10
2014 Work Plan
Water Issues
Tier 3 Priority: Fiscal Years 2014-2014
Leaders: Mayor Rich Carroll and Councilor Todd Goulding
Staff: Town Manager Virginia Egger,
Engineering Staff and Special Water Counsel
Identify and water issues and develop a timetable and approach for resolution over the next two years; manage what
can be done against higher priorities.
1st Quarter January – March 2014
1.1 Review and update the Upper Eagle River Water Authority and Town of Avon 2013 Work Program. Seek to resolve
all issues by November 1, 2014.
1.2 Organize water and wastewater documents and files at Town Hall; institutionalize knowledge. This project is 95%
complete.
1.3 Continue with the Water Authority, Avon representatives and Mountain Star residents to reach resolution of the
Mountain Star water tank, fire flow, irrigation and system delivery issues.
1.4 Schedule with Council and Water Authority representatives a program to develop and adopt solutions for needed
amendments to the Master Water Agreement; plan to adopt changes no later than November 2014. These changes
include the use of unallocated water held by the Authority and water conservation planning. With the Water
Authority, develop an understanding of how water rights and water use are accounted for and develop a process
for future transactions.
1.5 Resolve Avon Drinking Water Facility fenced area for ownership and/or lease to the Water Authority. Evaluate and
remediate liability concerns, if any, for Avon Drinking Water Facility fenced area with the Water Authority. Deadline
for resolution: September, 2014.
2nd Quarter April – June 2014
2.1 Participate as a member of the Urban Run-off Group and request that Avon is granted an Executive Committee
appointment. Participate with the Group to understand activities and possible 2014 funding request for a Gore
Creek Water Quality Improvement Plan.
3rd Quarter – July – September 2014
3.1 Draft and execute an agreement with the ERWSD for long term cost sharing and O&M responsibilities of the Heat
Recovery System.
3.2 Review the basis for the Avon’s water fees, which are assessed in addition to those tap fees and operational fees
assessed by the Water Authority.
4th Quarter October – December 2014
4.1 Schedule 1) ERWSD presentation of its 20-year wastewater infrastructure master plan, including possible rate
increase needs and Town’s 1041 requirements; and 2) Water Authority and ERWSD presentation on Eagle Mine’s
metal loading issues on the Eagle River.
2013-2014 STRATEGIC PLAN & 2014 WORK PLAN
September 24, 2014
Pa
g
e
11
2014 Work Plan
Transit Consolidation
Tier 3 Priority – Fiscal Years 2014-2014
Leaders: Councilors Buz Reynolds and Jake Wolf
Staff: Town Manager Virginia Egger,
Public Works Director and Transit Division Staff
Avon should be a leader in working to provide a consolidated transit operation in the valley. With
negotiations for 3rd parties in the new I-70 RTF needed, service availability in Fleet, plus planning for the 2015
World Cup, begin to build on these opportunities for a longer term cooperative partnership.
1st Quarter January – March 2014
1.1 Continue to advocate for an AGS station in Avon
1.2 Throughout the year, fully participate in regional transportation and parking forums and in CDOT I-70
corridor planning
2nd Quarter April – June 2014
2.1 Market to other potential clients for bus/vehicle storage and Fleet Services
2.2 Evaluate transit services for FY 2015 and opportunities for regional efficiencies
2.3 As appropriate, participate in Regional Collaboration efforts on transit
3rd Quarter – July – September 2014
3.1 Finalize I-70 RTF lease agreements for 100% year-round occupancy
3.2 Assess demographic characteristics of bus riders and how best to disseminate information about transit
service and about the Town
3.3 Develop consolidation plan as deemed feasible with ECO
4th Quarter October – December 2014
TBD
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Agenda Topic: Appointment of Town Council Members to a Town of Avon/Eagle River Fire Protection District Task
Force
At Council’s September 10, 2013, work session with the Eagle River Protection District Board of Directors, it was
agreed that each entity would appoint one or two elected officials to work together on fire protection issues and
collaboration opportunities. Areas identified as important matters to address include:
1. Wildridge seasonal wild land fire program, including summer “hot shot” staffing;
2. Land use regulations for new development to protect homes from wild land fire;
3. Community outreach for current home to amend residential landscaping; and
4. Opportunities for collaboration, including facility uses for equipment storage and relocation of the Avon
Fire Station.
Action at Tuesday’s meeting is the appointment of Council members to the Task Force.
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 1
1. CALL TO ORDER & ROLL CALL
Mayor Carroll called the meeting to order at 4:05 PM. A roll call was taken and Council members present
were Dave Dantas, Chris Evans, Jennie Fancher, Todd Goulding, and Jake Wolf. Buz Reynolds arrived at 4:10
pm. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Scott Wright, Finance Director
and Assistant Town Manager/Town Clerk Patty McKenny.
2. APPROVAL OF AGENDA
It was suggested to convene to the Urban Renewal Authority meeting earlier in order accommodate
some schedules.
3. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC)
Councilor Fancher moved to meet in Executive Session at 4:10 pm for the purpose of receiving legal advice
pursuant to the following:
3.1. Meet with Town Attorney for the purpose of receiving legal advice pursuant to Colorado
Revised Statute §24-6-402(4)(b) and to meet pursuant to Colorado Revised Statute §24-6-
402(4)(e) for the purpose of determining positions relative to matters that may be subject to
negotiations; developing strategy for negotiations; and instructing negotiators related to
discussion about retaining independent legal counsel for the investigation of alleged violations
of Code of Ethics
Councilor Wolfe seconded the motion and it passed unanimously by those present.
Mayor Carroll noted that the discussion would be confined only to the purposes of the executive session as
stated above and that if at any time during the executive session anyone believes that the discussion does
not concern the topic and purpose of the executive session, to please raise your objection immediately. The
following people were present during the executive session: Mayor Rich Carroll, Councilor Dave Dantas,
Councilor Evans, Councilor Jennie Fancher, Mayor Pro Tem Goulding, Councilor Buz Reynolds, Councilor Jake
Wolf, Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager/Town Clerk Patty
McKenny.
The executive session was adjourned at 5:20 pm and Mayor Carroll noted that the meeting now
reconvened in regular session. He asked if any Town Council member believed that any discussion in
executive session was inappropriate and not related to the topic and purpose of the executive session to
please state the objections at this time; there were no objections.
4. PUBLIC COMMENT
There were no comments at this time.
5. WORK SESSION [EXPECTED TO BEGIN AT 5:15 P.M.]
5.1. Meeting with the Eagle River Fire Protection District Board of Directors
5.1.1. ERFP Near and Long Term Facility Needs
5.1.2. Seasonal Wildland Fire Protection in Wildridge
5.1.3. Opportunities for Collaboration
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 2
Introductions were made of both the Avon Town Council members and the ERFPD board members as the
work session began at 5:30 pm. Present were Jennifer Carmell0Hays, John McCaulley, Darrell Wegert, Clark
Shively, Clint Janssen, and in addition Mike Brown and Linda Tillson representing the Eagle Library District
(Avon Public Library). Karl Bauer, Fire Chief, spoke about the following topics:
1. ERFPD New & Long Term Facility Needs / Facility needs as Avon grows and district grows / Training space
needs possibly share with APD
2. Seasonal Wildland Fire Protection in Wildridge: Status of Wildridge neighborhood’s fire protection and
how to increase community’s participation to mitigate fire
3. Identify Opportunities for Collaboration between district and town / combine their planning w/ town
planning
There was consensus from members to appoint one or two elected officials to work together on fire
protection issues and collaboration opportunities.
5.2. Update on the 2013 EGE Air Alliance Outcomes and 2014 Program
(Chris Romer, CEO; Mike Brown & Kent Myers, Vail Valley Partnership)
Mike Brown presented information about the EGE Air Alliance, trends, consolidations, impacts of plane
retirement of 757. Chris Romer, VVP, spoke about various airport volume trends, several different
competitive funding structures, etc. They noted that the EGE Air Alliance fund raising goal is $760K
with a split of 1) Governments & BCRC for a total of $260K and 2) Businesses for $300K. They hope to
continue Houston flight of $470 Revenue guarantee, Chicago summer service, and Washington DC
winter service. The next steps continue to be: 1) review long term funding models that would create a
long term sustainable revenue stream collections at about $1.8 to $2.4 M, 2) work with Eagle County
Airport management, 3) work w/ communities and businesses to encourage their support of this
program. Michael Caccioppo, noted his frustrations with knowing where the market is for the locals.,
he thought it would be important and meaningful to find out what the number is for locals using the
airport.
5.3. Presentation of new a utility access road for the Traer Creek Water Tank – Alignment and
Retaining Walls (Dan Leary, Traer Creek Metropolitan District)
Dan Leary presented highlights of the utility access road. Two handouts were provided 1) photos of
the site, 2) Traer Creek Road Grading Plan Civil Construction Plans dated July 2013. Leary noted that
the retaining wall would be low visibility and that with the new road alignment the tank would not be
viewed that often. Tom Marcin, Marcin Engineering, presented information about the road as well.
Scott Green, Green Construction, spoke about his company constructing the road. It was noted that
staff has requested information about the following items related to this project:
• Status of the State of Colorado Stormwater Discharge Permit;
• Drainage report for the utility road;
• Technical specifications for the construction plan;
• Calculations for the retaining wall; and
• The Scott Green Construction Agreement
There were also discussions about access to the park site with new road alignment and positive impact
to the park, as well as road slopes and grades. Staff had not yet received all the materials to complete
the application.
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 3
6. ACTION ITEMS
6.1. Review and Action on Second Assignment and Assumption of Development Agreement
between Guggenheim Partners and Wyndham Vacation Resorts – Nathan Battle, Guggenheim
Partners & Dominic Mauriello for Wyndham Hotel (Eric Heil, Town Attorney)
Mayor Pro Tem Goulding and Councilor Evans left the room at this time due to a conflict of interest.
Eric Heil, Town Attorney, explained the request from Guggenheim Partners & Wyndham Vacation
Resorts for the town’s consent for two assignments of the development Agreement related to the
financing for the Wyndham project. The council memo included in the packet provided an explanation
of the transaction and the two assignments proposed (Wyndham to NEWCO and NEWCO back to
Wyndham). The forms of the assignment agreements were provided. The Town Manager revealed her
family’s ownership in Guggenheim units, with the comment that there is no management role and no
power to influence decisions in any way. Nathan Batt, Gugenheim Partners, confirmed this as well.
Mayor Carroll moved to authorize the Town Attorney to provide written consent on behalf of the Town
for the assignment of the Lot 61 Development Agreement from Wyndham to NEWCO and from NEWCO
to Wyndham in the form of assignment submitted to the Town subject to further review by the Finance
Director and the Town Attorney of the Completion Purchase Agreement and finances of NEWCO.
There was a motion with unanimous approval to recess the regular meeting and convene to the Urban
Renewal Authority meeting at 8 pm. There was a motion with unanimous approval to reconvene back
to the Regular Meeting at 8:30 pm.
6.2. Resolution No 13-25, Series of 2013, Resolution Setting Forth Review And Design Considerations For
All Future Art Locations (Jared Barnes, Planner II)
There was information presented about prior resolutions that addressed some guidelines for art
maintenance. In light of the new property owners, Hoffmann Group’s request to place art on private
property and public right of ways, this resolution was drafted to address these considerations, and place the
authority to review new public art locations to the Planning and Zoning Commission. It was noted that a
minor design and development plan application would be required for this request and would be reviewed
by PZC if approved. Councilor Evans moved to approve Resolution No 13-25, Series of 2013, Resolution
Setting Forth Review And Design Considerations For All Future Art Locations. Councilor Dantas seconded
the motion and it passed unanimously.
6.3.First Reading of Ordinance 13-12, Series of 2013, An Ordinance Amending Chapter 9.16 of the
Avon Municipal Code Regarding Marijuana Possession and Use (Eric Heil, Town Attorney)
Information was presented about the ordinance which amends Chapter 9.16 concerning possession,
use, transfer and sale of marijuana. It was noted that the ordinance was presented in an effort to
reconcile the Avon Municipal Code with the constitutional amendments enacted by Amendment 64
which legalized marijuana possession and consumption. There was support from council members to
organize a group continue discussing how A von should move forward with implementing marijuana
sale. It was noted that this topic has become part of the economic development work plan in the 2014
strategic plan. Mayor Pro Tem Goulding moved to approve Ordinance 13-12, Series of 2013, An
Ordinance Amending Chapter 9.16 of the Avon Municipal Code Regarding Marijuana Possession and
Use. Councilor Fancher seconded the motion and it passed unanimously. It was noted that a public
hearing would be noticed for September 24th.
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 4
6.4. Appointment of a Town Representative to serve on Boards of Directors for the Buffalo Ridge
Affordable Housing Corporation, Eaglebend Affordable Housing Corporation and Kayak
Crossing Affordable Housing Corporation (Patty McKenny, Assistant Town Manager)
Councilor Evans stepped down at this time due to a conflict of interest. There was discussion about
appointing the Town Manager to serve on the housing boards. At this time it as noted that if
appointed, the Town Manager would designate a staff member to assume this role, possibly staff from
Community Development Department. There were council members who preferred that she serve on
the housing boards. After some further discussion, Councilor Dantas moved to review this
appointment at the September 24th meeting during an Executive Session; Councilor Fancher seconded
the motion and it passed unanimously.
6.5. Minutes from Meetings on August 13, 2013, August 27, 2013 and August 28, 2013
Mayor Pro Tem Goulding moved to approve the August minutes; Councilor Dantas seconded the
motion to approve the minutes. The minutes were approved with a voice vote by members and Mayor
Pro Tem Goulding and Councilor Evans abstained on voting on the August 28th meeting as they were
not present.
7. WORK SESSION
7.1. 2014 Budget Work Session:
7.1.1. Update of the 2013-2014 Strategic Plan (Virginia Egger, Town Manager)
Time was spent reviewing the proposed 2014 work plan with some recommendations made by council
members to the following
Business Like Practices: complete surveys earlier in the year so PZC can evaluate comp plan
discussion with that community information
Add to Economic Development:
1. complete town survey of vacancies in buildings, create a report that summarizes
information about status of buildings and leasing rates,
2. create an Avon sales package that can be given to prospective businesses
3. review and evaluate the ability and structure of creating an Arts District in Avon
The plan would be modified and Council action would be requested at September 24th meeting.
7.1.2. Situational Analysis, 3-Year Revenue Projections; Fees and Charges; Fund
Balances/Contingency Levels (Scott Wright, Finance Director)
Town Manager Virginia Egger and Finance Director Scott Wright presented a number of items that
would move the 2014 budgeting process forward. The Town Council was supportive of the analysis and
three year projections, proposals for fees and information presented about fund balance and
contingency levels. The Town Council packet materials presented the details for this discussion.
7.2. Review of Process for Recruiting and Hiring a Director of Economic Initiatives
(Virginia Egger, Town Manger)
The Town Council supported moving forward with the proposal to hire this position.
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 5
8. VILLAGE AT AVON UPDATE
There were no other comments at this time.
9. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR
9.1. Upper Eagle Regional Water Authority Board Meeting (Todd Goulding, Mayor Pro Tem) / this
was postponed to the next meeting
EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC)
Mayor Carroll moved to meet in Executive Session at 11 pm for the purpose of receiving legal advice pursuant
to the following:
9.2. Meet with Town Attorney for the purpose of receiving legal advice pursuant to Colorado
Revised Statute §24-6-402(4)(b) and to meet pursuant to Colorado Revised Statute §24-6 -
402(4)(e) for the purpose of determining positions relative to matters that may be subject to
negotiations; developing strategy for negotiations; and instructing negotiators related to
discussion about retaining independent legal counsel for the investigation of alleged violations
of Code of Ethics
Councilor Reynolds seconded the motion and it passed unanimously.
Mayor Carroll noted that the discussion would be confined only to the purposes of the executive session as
stated above and that if at any time during the executive session anyone believes that the discussion does
not concern the topic and purpose of the executive session, to please raise your objection immediately. The
following people were present during the executive session: Mayor Rich Carroll, Councilor Dave Dantas,
Mayor Pro Tem Goulding, Councilor Evans, Councilor Jennie Fancher, Councilor Buz Reynolds, Councilor Jake
Wolf, Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager/Town Clerk Patty
McKenny.
The executive session was adjourned at 12:08 am and Mayor Carroll noted that the meeting now
reconvened in regular session. He asked if any Town Council member believed that any discussion in
executive session was inappropriate and not related to the topic and purpose of the executive session to
please state the objections at this time; there were no objections.
Mayor Carroll asked to add an agenda item based on the work session regarding the utility access road
for the Traer Creek Water Tank construction related to the issuance of a grading permit by the town of
Avon. Councilor Reynolds moved to give direction to Town Engineer, to include as conditions for the
final approval of the grading permit the following items:
The grading permit is only for a utility access road for TraerCreek Water Storage tank.
Any application to further improve the road shall be subject to town’s road building procedures
and standards
There is no assurance that the town would accept the road in the future as a public street
That the settlement pending litigation is not yet finalized and subject to further amendments to
development agreement
That applicant accepts risk of all expenditures related to the permit
Applicant will not pursue any other legal action again town related to the grading permit
expenditures
TOWN OF AVON, COLORADO
AVON REGULAR MEETING MINUTES FOR TUESDAY, SEPTEMBER 10, 2013
AVON TOWN HALL, ONE LAKE STREET
Avon Council Meeting 13.09.10 Minutes Page 6
Grading permit must be compliant with state and federal laws, including stormwater discharge
permit from CDPHE
Must obtain wetlands permit from Army Corps of Engineers
A site stabilization bond must be collected
The review process follows the Avon Municipal Code
Councilor Dantas seconded the motion and it passed unanimously.
There being no further business to come before the Council, the regular meeting adjourned at 12:10 PM.
RESPECTFULLY SUBMITTED:
_________________________________
Patty McKenny, Town Clerk
APPROVED:
Rich Carroll ________________________________
Dave Dantas ________________________________
Chris Evans ________________________________
Jennie Fancher ________________________________
Todd Goulding ________________________________
Albert “Buz” Reynolds ________________________________
Jake Wolf ________________________________
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: Ordinance No. 13-13, Amendments to Village (at Avon) Development Agreement
DATE: September 19, 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 to by adopted by Ordinance No. 13-13. At the September 17,
2013 Council meeting the Avon Town Council adopted first reading of Ordinance No. 13-13 with direction to
revise the amendments presented on September 17, 2013 by eliminating an option whereby Traer Creek-
RP (“TC-RP”) could elect to receive reimbursement for additional by “Non Credit PIF Revenues” in the
future. Council also provided direction to revise the Ordinance to state that it would become null and void if
the Add-On RSF was not implemented by November 1, 2013.
These changes to Ordinance No. 13-13 and the Development Agreement are presented to Council for
second and final reading on September 24, 2013.
TC-RP submitted an alternative proposal and proposed language changes on Tuesday afternoon,
September 17, 2013. Since last Tuesday numerous discussions have occurred between representatives of
Town and TC-RP. Last night, TC-RP submitted a revised proposal and Development Agreement. This
proposal ACCEPTS all the prior changes related to the Village Metropolitan District as an issuer and the
deletion of BNP’s right to a seat on the TCMD Board of Directors and shows all language proposed by TC-
RP for the Tank Project Financing as redlines. The revised proposal from TC-RP includes the following
terms:
• Any costs for the construction of the Water Tank over $7.2 million would be borne by TC-RP and would
not be reimbursable by TCMD or the Town under the Development Agreement.
• Interest will not accrue on construction funds between the time the funds are provided by TC-RP and
the time the Water Authority accepts the water storage tank.
• The difference in the interest rate of 8% and the effective interest rate of 5.673% for repayment of $7.2
million at $500k per year for 30 years shall be calculated and accrued as “capitalized interest” and shall
amount to $4.2 million which shall count against the Credit PIF Cap.
• The $4.2 Million in capitalized interest would count against the $17.5 Million “Prioritized Capital
Projects” addressed in Section 3.10 of the Development Agreement.
• The interest which accrues on the Capitalized Interest shall be repaid in the future with Non-Credit PIF
Revenues after compliance with the priority use of District Revenues in Section 6.9(b).
• TC-RP desires the option for the Capitalized Interest to be repaid in the future with Non-Credit PIF
Revenues and not count against the Credit PIF Cap.
M EMORANDUM
& PLANNING, LLC
Avon Town Council
Ordinance No. 13-13, Amendment to Development Agreement
September 19, 2013
Page 2 of 3
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 $7.2 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 5.6%.
• TC-RP shall be reimbursed for additional principal amounts for the Water Tank in excess of $7.2
million 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).
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 $7.2 million for the Tank Project will count against the Credit PIF Cap
plus the entire amount of TC-RP Additional Tank Project Financing Reimbursement.
• 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).
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
Avon Town Council
Ordinance No. 13-13, Amendment to Development Agreement
September 19, 2013
Page 3 of 3
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.
SECOND AND READING OF ORDINANCE NO. 13-13: Ordinance No. 13-13 approving these
amendments to the Development Agreement is presented for second and final reading. Only the body of
the Development Agreement and Exhibit F Definitions is presented to Council. Exhibits A through E have
not changed. The Town Council must conduct a public hearing for final reading. Approval of this ordinance
requires the concurring vote of 5 Council members because the Development Agreement includes
governmental entities and constitutes an intergovernmental agreement for more than 10 years.
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) with the revisions stated in document
entitled ADDITIONAL REVISIONS TO HEIL SEPTEMBER 12, 2013 VERSION OF DEVELOPMENT
AGREEMENT.”
Thank you, Eric
Page 1 of 4
Ord No. 13-13 Amendments to Development Agreement
Sept. 24, 2013 – FINAL
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 4
Ord No. 13-13 Amendments to Development Agreement
Sept. 24, 2013 – FINAL
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
[VERSION TO BE SPECIFIED] 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. Effectiveness of Development Agreement. The effectiveness of the
Development shall be contingent upon and subject to the conditions stated in this Section 3, and
at such time that any condition in this Section 3 fails prior to the Implementation Date this
Ordinance and the approval of Development Agreement shall become automatically null and
void, such conditions are stated as follows:
A. Compliance with the terms of the Closing Escrow Agreement, including occurrence of
the Implementation Date as such date may be extended by the terms and procedures of
the Closing Escrow Agreement.
B. Implementation and imposition of the Add-On Retail Sales Fee as defined in the
Development Agreement by November 1, 2013 regardless of the Effective Date of the
Development Agreement, along with remittance of the total amount of such Add-On
Retail Sales Fee to the Town, and the imposition, collection and remittance to Town of
such Add-On Retail Sales Fee shall continue from November 1, 2013 until the
Implementation Date, in accordance with applicable agreements and procedures for
imposition, including but not limited to the Second Amendment to Declaration of
Covenants for The Village (at Avon) Commercial Areas, First Amendment to the
Declaration of Covenants for The Village (at Avon) Mixed Areas and the Add-On Retail
Sales Fee Services Collection Agreement, and such Add-On Retail Sales Fee shall
continue on and after the Implementation Date as set forth in the Development
Agreement.
Page 3 of 4
Ord No. 13-13 Amendments to Development Agreement
Sept. 24, 2013 – FINAL
C. Approval by the Avon Town Council of a revised Traer Creek Water Storage Tank
Agreement and Second Amendment to Water Service Agreement (“Water Tank
Agreement”), including approval of the Pledge Agreement as an exhibit to the Water
Tank Agreement, which Water Tank Agreement with exhibits include terms and
definitions that are essential to and cross-referenced in the Development Agreement on
or prior to the Implementation Date as defined and as may be extended in the Closing
Escrow Agreement.
Section 4. 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 5. 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 6. 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 7. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, that it is
promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary
for the preservation of health and safety and for the protection of public convenience and
welfare. The Town Council further determines that the Ordinance bears a rational relation to the
proper legislative object sought to be obtained.
Section 8. 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 9. Right of Referendum. The right of referendum shall run thirty (30) days from
the date of publication of the notice that a vested property right has been granted in accordance
with Section 7.16.140(d)(2)(iii) of the Avon Municipal Code.
[execution page follows]
Page 4 of 4
Ord No. 13-13 Amendments to Development Agreement
Sept. 24, 2013 – FINAL
INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED
POSTED on September 17, 2013 and a public hearing on this ordinance shall be held at the
regular meeting of the Town Council on September 24, 2013, at 5:30 P.M. in the Council
Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado.
____________________________
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
ADDITIONAL REVISIONS TO HEIL SEPTEBER 12, 2013 VERSION OF
DEVELOPMENT AGREEMENT
5.5 Obligation of TC-RP. 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 elsewhere in the
Development Agreement.
(ii) TCMD and VMD shall reimburse TC-RP for the first
$7,2000,0000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS)
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 $7,2000,000 (SEVEN
MILLION TWO HUNDRED THOUSAND DOLLARS) 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) Rrepayment as an Additional Developer Advance
provided that the total repayment cost of the TC-RP
Additionoal Tank Project Financing Reimbursement shall
count against the Credit PIF Cap (i.e. principal, interest and
all other costs associated with repayment).; or,
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.
6.2(b)(ii) $7,0200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS)
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).
6.2(c)(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).
6.9(b)(v)(B)(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.
DEFINITIONS: 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).
HEIL – SEPT 12, 2013
1001679.22 FINAL1044033.4
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
HEIL – SEPT 12, 2013
2
1001679.22 FINAL
1044033.4
Agreement. None of the conveyances referred to in Recital E were accompanied by a specific
written grant of the power to amend the Original Agreement as provided in Section 1.4 of the
Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being
parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original
Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted any power to
consent or object to any amendment of the Original Agreement (except for the rights of BNP,
derived in its capacity as the issuer of an irrevocable direct pay letter of credit securing the Traer
Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002 and the Traer Creek
Metropolitan District Variable Rate Revenue Bonds, Series 2004, to consent to TCMD’s
execution of any such amendment). As provided in Section 1.4 of the Original Agreement, no
person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to
execute or acknowledge this Development Agreement as a condition of this Development
Agreement being legally effective and binding on all parties to the Original Agreement and all
Landowners.
G. For ease of administration and in recognition of the fact the ownership of the
Property has and will continue to become diverse as the Project develops, the Developer Affiliates
have designated Master Developer to act on their behalf for all purposes in connection with this
Development Agreement, including but not limited to negotiation and execution of this
Development Agreement and any future amendments hereto.
H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and other
parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV 316
(collectively, consolidated as Case No. 2008 CV 385, the “Litigation”) and the parties to the
Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the
uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the
uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered into
that certain Settlement 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
HEIL – SEPT 12, 2013
3
1001679.22 FINAL
1044033.4
the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate
dismissal of the Litigation with prejudice and minimize the potential for future legal disputes.
K. During the period between the Original Effective Date and the Execution Date and
in reliance on the revenue sharing and infrastructure financing arrangements established by the
Original Agreement, the Districts, the PICs, Master Developer and/or the Developer Affiliates
have made large investments in Public Improvements located both within the Property and outside
of the Property. The foregoing has resulted in:
(1) Full satisfaction of the following obligations of TCMD under the terms and
conditions of the Original Agreement, with the provisions establishing such obligations
accordingly deleted from this Development Agreement:
(a) Construction of the Interstate 70 Interchange and the Highway 6
Connector Road as defined in § 4.2 of the Original Agreement;
(b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of
the Original Agreement, in the amount of $100,000;
(c) Construction of the Phase 1 Improvements and the Phase 2
Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement;
(d) Construction of the Swift Gulch Road Improvements as defined in §
4.3(c) of the Original Agreement;
(e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of
the Original Agreement; and
(f) Those obligations set forth in § 4.3(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;
HEIL – SEPT 12, 2013
4
1001679.22 FINAL
1044033.4
(b) Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L. The Town has adopted Ordinance No. 12-10, which approved this Development
Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and
took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term Sheet.
M. Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
will require substantial additional investments by the Districts, the PICs, Master Developer, the
Developer Affiliates and/or other Landowners. All such completed and to be constructed Public
Improvements will serve the needs of the Project and the Town. Such prior and future investments
can be supported only if there are assurances that development of the Project will be permitted to
proceed to ultimate completion as contemplated in this Development Agreement and the PUD
Guide.
N. The Vested Property Rights Statute and the Municipal Code (as in effect on the
Execution Date) authorize the Town to enter into development agreements which provide for the
vesting of property development rights with a term of greater than three (3) years.
O. Town Council has determined that granting Vested Property Rights for the duration
of the Vesting Term will promote reasonable certainty, stability and fairness in the land use
planning process, stimulate economic growth, secure the reasonable investment-backed
expectations of Landowners and foster cooperation between the public and private sectors in the
area of land use planning and development.
P. Town Council specifically finds that this Development Agreement provides public
benefits including but not limited to the following specific public benefits: (i) development of the
Property in accordance with the applicable development standards in the Development Plan and,
to the extent not controlled by the Development Plan, the Municipal Code (as amended from time
to time); (ii) economic development through construction anticipated to occur in connection with
development of the Project; (iii) economic development through the development of various
commercial and residential uses that enhance, complement and reinforce the Town’s existing
economy, commercial base and ad valorem property tax base; (iv) development of housing to meet
the needs of the Avon community; (v) development of significant property within the Town’s
municipal boundaries which promotes economies of scale in the provision of public services; and
(vi) establishment of a public-private cooperative arrangement that promotes the availability of
capital for Public Improvements and promotes the competitiveness and viability of private
development within the Town and the Project.
Q. In exchange for these benefits and the other benefits to the Town contemplated by
this Development Agreement, together with the public benefits served by the orderly development
of the Property, this Development Agreement and the Vested Property Rights established herein
are intended to provide assurance to Master Developer, EMD, the Developer Affiliates, other
Landowners, the Districts, lenders providing financing for development of the Project from time to
time, BNP and purchasers of bonds or holders of other forms of debt issued or to be issued by the
Districts that development of the Property pursuant to the terms and conditions of the
HEIL – SEPT 12, 2013
5
1001679.22 FINAL
1044033.4
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.
HEIL – SEPT 12, 2013
6
1001679.22 FINAL
1044033.4
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,
HEIL – SEPT 12, 2013
7
1001679.22 FINAL
1044033.4
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,
(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
HEIL – SEPT 12, 2013
8
1001679.22 FINAL
1044033.4
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.
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
HEIL – SEPT 12, 2013
9
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
10
1001679.22 FINAL
1044033.4
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 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,
HEIL – SEPT 12, 2013
11
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
12
1001679.22 FINAL
1044033.4
any liability to the Town or any other party arising under this Development Agreement for not
developing all or any portion of any such phase of the Project.
(b) Districts. The Districts’ Service Plans establish the scope of the Districts’
authorized activities and shall not be construed to constitute an obligation of the Districts to cause
the development of any particular Public Improvements, or to provide any particular services or to
perform any other function for which the Districts have authorization, nor shall such Service Plans
be construed to create any obligation of Master Developer or any Landowner to provide any Public
Improvements, any services or to otherwise pay any monies or perform any actions on behalf of or
for the benefit of the Districts. No District shall have any obligation arising under this
Development Agreement to develop all or any portion of the Public Improvements, nor shall any
District have any liability to the Town or any other party arising under this Development
Agreement for not developing all or any part of the Public Improvements. The Parties contemplate
that the Project will be developed in phases as generally driven by market conditions as they exist
from time to time. No District shall have any obligation arising under this Development
Agreement to develop all or any portion of the Public Improvements pertinent to any such phase,
notwithstanding the development or non-development of any Public Improvements for any other
phase, and no District shall have any liability to the Town or any other party arising under this
Development Agreement for not developing all or any portion of the Public Improvements
pertinent to any such phase of the Project. The foregoing shall not be construed to relieve any
District of any obligation established pursuant to the terms and conditions of a Public
Improvements Agreement that is executed by a District as contemplated in Section 3.2(a).
(c) Construction and Interpretation. For purposes of this Section 2.5 references
to Master Developer, Landowners and the Districts shall be construed to include their respective
employees, agents, members, officers, directors, shareholders, consultants, advisors, successors,
assigns and similar individuals or entities.
2.6 Compliance with General Regulations. Except as otherwise provided in the
Development Plan, the establishment of Vested Property Rights under this Development
Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town
ordinances and regulations of general applicability (including, but not limited to, building, fire,
plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Original
Effective Date or as amended from time to time), and other Town rules and regulations) or the
application of state or federal regulations, as all of such regulations existed on the Original
Effective Date or may be enacted or amended after the Effective Date; provided, however, that
Town ordinances and regulations newly enacted or amended after the Original Effective Date shall
not directly or indirectly have the effect of adversely altering, impairing, preventing, diminishing,
imposing a moratorium on development, delaying or otherwise adversely affecting any
Landowner’s Vested Property Rights. No Landowner shall be deemed to have waived its right to
oppose the enactment or amendment of any such ordinances and regulations.
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
HEIL – SEPT 12, 2013
13
1001679.22 FINAL
1044033.4
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 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,
HEIL – SEPT 12, 2013
14
1001679.22 FINAL
1044033.4
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).
(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
HEIL – SEPT 12, 2013
15
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
16
1001679.22 FINAL
1044033.4
existing as of the Execution Date and the future final Main Street alignment), Swift Gulch
Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along public
roads shall be in accordance with generally applicable standards set forth the Municipal
Code (as amended from time to time) and applied uniformly throughout the Town.
(c) Phased Road Improvements.
(i) Generally. All roads, including Main Street and East Beaver Creek
Boulevard (as such roads are identified on the PUD Master Plan), may be developed in
phases in accordance with the road standards set forth in Exhibit F of the PUD Guide and
as warranted based on the applicable traffic study.
(ii) Main Street. Without limiting the generality of the foregoing,
construction of the final 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
HEIL – SEPT 12, 2013
17
1001679.22 FINAL
1044033.4
activities shall be coordinated with the Town and all such Dry Utilities shall be located in such a
manner as to comply with Town requirements regarding separation from public utilities located or
to be located within such rights-of-way.
3.4 Municipal Water; Water Rights Dedications. Certain water rights have been
conveyed to, or otherwise acquired by, the Authority to be used in connection with the
development of the Project and to serve uses within the Project, including some of the water rights
and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to the
Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights to
water supplied by the Colorado River Water Conservation District (together with additional water
rights, if any, Dedicated to the Town or to the Authority for such purposes after the Effective Date
pursuant to Section 3.4(c), the “Water Rights”). Pursuant to and as more particularly described in
the Tank Agreement: (i) as of the Effective Date, TCMD has conveyed to the Town, and the Town
has thereafter conveyed to the Authority, certain interests in the Water Rights; (ii) the Water
Rights conveyed to the Authority as of the Effective Date are deemed sufficient to provide potable
water service up to a maximum of 106.3 acre-feet of consumptive use per year in accordance with
depletion factors decreed in Case No. 97CW306; and (iii) as of the Effective Date, the Authority is
legally obligated to issue taps and to provide the number of single family equivalents (SFE) of
potable water service to the Project that is equivalent to 106.3 acre-feet of consumptive use per
year, as more fully set forth in the augmentation plan approved in Case No. 97CW306. The
amount of consumptive use attributable to potable water service pursuant to the depletion factors
and other assumptions set forth in the plan for augmentation decreed in Case No. 97CW306 is
calculated as 180.6 acre-feet per year less 74.3 acre-feet per year reserved by the Town for raw
water irrigation and lake evaporation purposes [180.6 – 74.3 = 106.3]. The 106.3 acre-feet of
consumptive use is referred to for purposes of this Section 3.4 as the “potable water allocation”
and the 74.3 acre-feet of consumptive use is referred to herein as the “raw (non-potable) water
allocation.” Additionally, the Tank Agreement provides that the Town has certain obligations
with respect to providing municipal water service to the Project under circumstances where the
Authority fails to provide such services due to dissolution or otherwise.
(a) Water Bank. Master Developer and the Town shall establish and jointly
maintain a cumulative written record (the “Water Bank”) that documents: (i) the total Water
Rights, stated as the total “potable water allocation” and the total “raw (non-potable) water
allocation;” (ii) the specific portion of the “potable water allocation” that is assigned to particular
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
HEIL – SEPT 12, 2013
18
1001679.22 FINAL
1044033.4
configured on the Effective Date shall be exempt from the foregoing requirement, but parcels
within Lot 1 that are created by further subdivision of Lot 1 for purposes of development shall be
subject to the foregoing requirement. The amount of consumptive use required to service
development shall be based on the estimated demand, depletion factors and other assumptions set
forth in the plan for augmentation decreed in Case No. 97CW306.
(b) Return of Water Rights to Water Bank. If the amount of the “potable water
allocation” and the “raw (non-potable) water allocation” assigned for any particular Site exceeds
the amount of the “potable water allocation” and the “raw (non-potable) water allocation” actually
required to serve the Site based upon actual development and final build-out thereof (such actual
“potable water allocation” and “raw (non-potable) water allocation” demand to be determined in
accordance with generally applicable requirements of the Authority and in accordance with the
depletion factors decreed in Case No. 97CW306), the excess and unused portion of such water
allocation shall be returned to the Water Bank and the Water Bank shall be revised to reflect that
such excess and unused portion of such water allocation is available for assignment and is no
longer assigned to the original Site. Excess and unused water allocation amounts returned to the
Water Bank shall be available for allocation in accordance with Section 3.4(a) as though such
water allocation amounts had not previously been allocated from the Water Bank to serve a
particular Site. The determination of excess portion of any water allocation shall be determined by
the Town and subject to the approval of the Authority, pursuant to their respective generally
applicable requirements, and shall be based on consumptive use of the final build-out of any Site in
accordance with the depletion factors and other provisions of the decree in Case No. 97CW306.
The Town may require water usage restrictions or maintenance requirements to prevent any future
increase of consumptive water use above the amount determined necessary to serve the final
build-out of any Site.
(c) Additional Water Rights.
(i) For the Property. Full build out of the Project as contemplated by
the Development Plan may require in excess of 180.6 acre-feet of consumptive use. If the
aggregate total Water Rights is insufficient to support full development of the Project in
accordance with the decree in Case No. 97CW306 and the PUD Guide, and all available
water allocations under the Water Rights have been assigned to Sites (whether 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
HEIL – SEPT 12, 2013
19
1001679.22 FINAL
1044033.4
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, letter of credit or similar
mechanism) for assurance of completion of the water storage tank; provided, however, that the
HEIL – SEPT 12, 2013
20
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
21
1001679.22 FINAL
1044033.4
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 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:
HEIL – SEPT 12, 2013
22
1001679.22 FINAL
1044033.4
(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 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).
HEIL – SEPT 12, 2013
23
1001679.22 FINAL
1044033.4
(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 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
HEIL – SEPT 12, 2013
24
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
25
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
26
1001679.22 FINAL
1044033.4
to increase the maximum commercial and/or residential densities permitted by the PUD Guide (as
so amended), the Town shall have the right to evaluate the impacts of such increased densities and
to condition approval of such PUD Guide amendment on the imposition of additional land
dedication and/or exaction, fee or payment obligations that correspond to the increment of
increased density approved in such amendment. The additional requirements, if any, shall be
based on the Municipal Code requirements in effect as of the submittal date of the pertinent PUD
Guide amendment as applied only to the increment of increased density approved in such PUD
Guide amendment. By way of example, if a PUD Guide amendment is approved which increases
the maximum commercial density within the Project by 100,000 square feet, the maximum
additional obligation with respect to matters addressed in Sections 3.7 and 3.8 shall be limited to
what would be required to mitigate 100,000 square feet of commercial density under the Municipal
Code requirements in effect on the submittal date of the PUD Guide amendment application. With
respect to Planning Area I, any future PUD Guide amendment which establishes the minimum
residential and commercial densities stated in the PUD Guide in effect as of the Effective Date
shall not result in the imposition of any additional obligations with respect to matters addressed in
Sections 3.7 and 3.8, but any amendment which has the effect of approving commercial or
residential densities for Planning Area I in excess of the minimum densities stated in the PUD
Guide in effect as of the Effective Date may require additional mitigation for the increment of
increased density in the manner described above.
3.10 Prioritized Capital Projects. The Parties have identified the subset of Public
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
HEIL – SEPT 12, 2013
27
1001679.22 FINAL
1044033.4
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 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.
HEIL – SEPT 12, 2013
28
1001679.22 FINAL
1044033.4
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)
HEIL – SEPT 12, 2013
29
1001679.22 FINAL
1044033.4
participating with the PICs in meetings with representatives of such retailers regarding the nature
and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request
from time to time.
(c) Assumption of TCMD Maintenance Obligations. From and after the
Effective Date, the Town shall assume and be responsible for the performance of all of TCMD’s
and VMD’s current and future maintenance, repair and replacement obligations with respect to
Public Improvements (including but not limited to all Dedicated and Accepted public road
right--of--way landscaping, Nottingham Dam, Nottingham-Puder Ditch, irrigation systems and
water wells, the wet well located within PA-F, tree replacements and, subject to Section 3.3(b)(iv),
snow removal). The Town shall have sole discretion to determine the appropriate maintenance of
Nottingham Dam, which shall include but is not limited to maintenance, repair, replacement,
improvement, expansion, decommission, removal and deferral of any activity. Notwithstanding
the forgoing, TCMD and/or VMD shall retain responsibility to cause the following obligations to
be performed utilizing District Revenues available to 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
HEIL – SEPT 12, 2013
30
1001679.22 FINAL
1044033.4
consent under certain facts), TCMD and the Town each must provide written
approval prior to the release of any funds from the Asphalt Overlay Account.
(C) The Town’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay Account.
(D) The Town’s obligation to deposit funds into the Asphalt
Overlay Account shall be limited to the portion of the Municipal Payments the
Add-On RSF Collection Agent deposits on behalf of the Town pursuant to Section
5.2(c), and the Town shall have no obligation to contribute funds from any other
source.
(ii) After Termination of Joint Funding. From and after the date upon
which the shared funding contributions terminate pursuant to Section 6.6(b):
(A) The Town shall be solely responsible for all costs of asphalt
overlays for Dedicated public roads in the Project.
(B) The Town shall schedule and perform such asphalt overlays
in a manner materially consistent and commensurate with other public roads in the
Town having similar characteristics in terms of traffic volume, age of road surface
and similar factors.
(e) Easement for Access to Planning Area I. As of the Execution Date, the
Town has acquired fee title to the Forest Service Village Parcel. The Town agrees and covenants
that the Town shall provide consent, as the owner of the Forest Service Village Parcel, to EMD (or
to the then-Landowner of Planning Area I) to submit a subdivision application for the Forest
Service Village Parcel to plat and dedicate a public road right-of-way and to construct a public
road in accordance with the applicable procedures and standards set forth in the PUD Guide and
the Municipal Code. The Town has executed the Covenant and Temporary Easement Agreement
in the form set forth in Exhibit C and shall cause the Covenant and Temporary Easement
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
HEIL – SEPT 12, 2013
31
1001679.22 FINAL
1044033.4
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.
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:
HEIL – SEPT 12, 2013
32
1001679.22 FINAL
1044033.4
(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.
(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.
HEIL – SEPT 12, 2013
33
1001679.22 FINAL
1044033.4
(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
HEIL – SEPT 12, 2013
34
1001679.22 FINAL
1044033.4
obligation to maintain the Tax Credit in effect, Master Developer shall take all legally available
action to cause the PICs to impose, collect and remit the Add-On RSF as required pursuant to this
Development Agreement, and Master Developer shall not take any action to modify, reduce,
terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales
transactions occurring within the Project.
(d) Urban Renewal. If it is determined pursuant to Section 6.7 that Lot 1 will be
included within one or more urban renewal areas, Master Developer shall take such steps, and
cause Developer Affiliates to take such steps, as may reasonably be necessary to provide timely
and full cooperation in establishing such urban renewal area(s) and related urban renewal plan(s),
subject to full compliance with the conditions set forth in Section 6.7. The foregoing shall not be
construed to constrain any Landowner from pursuing any property tax appeal proceeding or
change in tax classification of any portion of the Property, nor shall it be construed to require any
Landowner to cause or consent to a change in tax classification of any portion of the Property.
(e) 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.
HEIL – SEPT 12, 2013
35
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
36
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
37
1001679.22 FINAL
1044033.4
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).
(v) Capital Project Costs that TCMD fundsthe Districts fund directly
from Credit PIF Revenues budgeted and appropriated for such purpose.
HEIL – SEPT 12, 2013
38
1001679.22 FINAL
1044033.4
(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
HEIL – SEPT 12, 2013
39
1001679.22 FINAL
1044033.4
apply to the election of lessee to exercise its rights to extend such leases in accordance with
the terms of the respective original lease documents as in effect on the Execution Date.
(ii) Waiver of Claims. Accordingly, the Town hereby fully and
irrevocably waives any and all claim or right to impose its real estate transfer tax, and the
Commercial PIC hereby fully and irrevocably waives any and all claim or right to impose
the Real Estate Transfer Fee, upon the existing leases (together with extensions and options
to extend thereunder) for Wal-Mart and Home Depot.
(iii) Applicability of Municipal Code. Contemporaneously with the
Execution Date, the Town has adopted Ordinance No. 12-11, pursuant to which it has,
effective on the Effective Date, amended Chapter 3.12 of the Municipal Code to clarify
various matters relating to the circumstances under which a long term lease constitutes a
Taxable Transaction for purposes of triggering an obligation to pay the Town’s real estate
transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee
shall be administered based Chapter 3.12 of the Municipal Code as amended by Ordinance
No. 12-11 (in the form and in substance as adopted contemporaneously with the Execution
Date) and in effect on the Effective Date. Transactions subject to the Town’s real estate
transfer tax shall be subject to the Real Estate Transfer Fee, and payment of the Real Estate
Transfer Fee shall result in the automatic and simultaneous application of the Tax Credit.
The Real Estate Transfer Fee shall not be construed to be part of the Taxable Transaction,
and the Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If,
notwithstanding the foregoing, the Town is legally required pursuant to state statute to
impose and collect its Real Estate Transfer Tax on the Real Estate Transfer Fee during the
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
HEIL – SEPT 12, 2013
40
1001679.22 FINAL
1044033.4
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 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%.
HEIL – SEPT 12, 2013
41
1001679.22 FINAL
1044033.4
(iii) Accommodations/Lodging Fee. Except to the extent of an increased
accommodations/lodging tax rate approved by the Town for a specific project as set forth
in Section 6.4(b)(ii), the same rate as the corresponding Town accommodations/lodging
tax rate as in effect from time to time. As of the Execution Date, the Town
accommodations/lodging tax and the Accommodations/Lodging Fee each are set at the rate
of 4.0%.
(iv) Use Tax. If the Town imposes any use tax on building materials
during the Term that is not in effect as of the Execution Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in Exhibit F
without the need of any formal action by the Town. The PICs may establish and impose a
building materials use fee, which shall be included in the definition of Credit PIF,
corresponding to such use tax and applying to the same transactions and at the same rate as
such use tax. The Town may amend its Municipal Code to reflect the automatic Tax Credit
for use tax as set forth in this sub-section, but such an amendment shall not be required to
implement the automatic Tax Credit. The Parties and any party obligated to pay, collect or
remit such use tax shall be entitled to rely and act upon the Tax Credit being applied to such
transactions in order to offset the effect of the Credit PIF in the same manner and to the
same extent as the Tax Credit applies to retail sales transactions, real estate transfer
transactions and accommodations/lodging transactions. Prior to adopting any such use tax,
the Town shall coordinate with the PICs and other Parties regarding the implementation of
any such use taxes and application of the Tax Credit thereto. The Credit PIF imposed and
collected on such Taxable Transactions shall not be deemed to be part of such Taxable
Transaction and shall not be subject to application of the corresponding Town use tax.
(b) Add-On RSF Rate. As of the Effective Date, the PICs have set the Add-On
RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are Taxable
Transactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF Collection
Agent pursuant to the Add-On RSF Collection Services Agreement and application of any other
adjustments to such revenues as set forth in this Development Agreement and/or the Add-On PIF
Collection Services Agreement) of the Add-On RSF Revenues resulting from imposition of the
foregoing 0.75% rate to retail sales transactions that are Taxable Transactions shall constitute the
Municipal Payments.
(i) Increase in Town Sales Tax Rate. If the Town increases the Town’s
retail sales tax rate above 4.0 % during any period for which Municipal Payments are to be
remitted to the Town, the portion of the Add-On RSF Revenues which will be construed to
be Municipal Payments shall be reduced in the same degree as any Town sales tax rate
increase above 4.0%. For example, if the Town increases its retail sales tax rate by 0.25%
(from 4.0% to 4.25%), the portion of the Add-On RSF Revenues construed to be Municipal
Payments shall be that amount equivalent to a reduction of 0.25% in the Add-On RSF rate
(i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate
of 0.75%). As of the Effective Date, the PICs have not imposed an Add-On PIF on
transactions other than retail sales transactions that are Taxable Transactions or set the
Add-On PIF at a rate higher than the rate of the Add-On RSF required pursuant to this
Section 6.4(b).
HEIL – SEPT 12, 2013
42
1001679.22 FINAL
1044033.4
(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.
HEIL – SEPT 12, 2013
43
1001679.22 FINAL
1044033.4
(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
HEIL – SEPT 12, 2013
44
1001679.22 FINAL
1044033.4
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 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.
HEIL – SEPT 12, 2013
45
1001679.22 FINAL
1044033.4
(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 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.
HEIL – SEPT 12, 2013
46
1001679.22 FINAL
1044033.4
(a) Limited to Lot 1. The area included within the urban renewal plan is limited
to Lot 1 or a portion thereof.
(b) Reduction of Credit PIF Cap. A maximum amount of $10,000,000 (TEN
MILLION DOLLARS) of proceeds available for the payment of Capital Project Costs from bonds
or other financial obligations (whether in the form of bonds, direct payments, redevelopment
agreement(s) and/or cooperation/funding agreement(s)) issued or incurred by AURA to pay Cap
Amounts may be counted against and thereby reduce the remaining Credit PIF Cap; provided,
however, that the cost of improvements to or servicing Town-owned properties (by way of
example and not limitation, improvements located within, utilities extensions servicing and/or
access to and from Planning Area B, Planning Area E, or park/open space areas Dedicated to the
Town), whether financed utilizing TIF Revenues or other revenues of the Town or AURA, shall
not result in a reduction of the Credit PIF Cap. Nothing in this Section 6.7(b) constitutes a limit on
AURA’s ability to finance improvements it deems appropriate. The restriction in this Section
6.7(b) relates only to whether bonds issued by AURA to pay for the costs of such improvements
count against the Credit PIF Cap.
(c) AURA Board Positions. Prior to or concurrently with the effective date of
any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an
urban renewal plan therefore, the Town and AURA shall take action to appoint an individual
designated by Master Developer and shall take action to appoint an individual designated by BNP
(subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA board. The
Master Developer and BNP board members shall be full members of the AURA board with equal
rights, duties and responsibilities as other AURA board members with respect to all matters
pertaining to any urban renewal area including Lot 1 (or a portion thereof), the redevelopment plan
or plans for any urban renewal area including Lot 1 (or a portion thereof) and all AURA activities
of any nature that directly or indirectly involve the establishment, implementation and
administration of any urban renewal area including or any urban renewal plan affecting Lot 1 (or a
portion thereof). The Master Developer and BNP shall comply with statutory requirements
regarding conflicts of interest. If the AURA board for activities affecting Lot 1 is constituted as a
separate board from that which operates within other areas of the Town, such BNP and Master
Developer board members shall be full members for all purposes having equal standing with other
board members. If the AURA board is not constituted as a separate board from that with operates
within other areas of the Town, the BNP and Master Developer board members shall have no
authority or standing to participate in AURA board activities pertaining to areas of the Town other
than Lot 1, and shall recuse themselves from all such proceedings. BNP’s right to have a member
on the AURA board shall expire and terminate at such time as there are no outstanding obligations
to BNP under the 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
HEIL – SEPT 12, 2013
47
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
48
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
49
1001679.22 FINAL
1044033.4
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.
(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
HEIL – SEPT 12, 2013
50
1001679.22 FINAL
1044033.4
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.
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.
HEIL – SEPT 12, 2013
51
1001679.22 FINAL
1044033.4
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 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
HEIL – SEPT 12, 2013
52
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
53
1001679.22 FINAL
1044033.4
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 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.
HEIL – SEPT 12, 2013
54
1001679.22 FINAL
1044033.4
(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 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.
HEIL – SEPT 12, 2013
55
1001679.22 FINAL
1044033.4
(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 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
HEIL – SEPT 12, 2013
56
1001679.22 FINAL
1044033.4
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.
HEIL – SEPT 12, 2013
57
1001679.22 FINAL
1044033.4
ARTICLE 7
Default; Remedies
7.1 Default by Town. A “breach” or “default” by the Town shall be defined as: (i) any
zoning, land use or other action or inaction, direct, indirect or pursuant to an initiated measure,
taken without Master Developer’s and the affected Landowner’s or Landowners’ consent, that
alters, impairs, prevents, diminishes, imposes a moratorium on development, delays or otherwise
adversely affects any development, use or other rights of the Landowners under this Development
Agreement or the Development Plan; or (ii) the Town’s failure to fulfill or perform any obligation
of the Town that is expressly set forth in this Development Agreement.
7.2 Default by TCMD or VMD. A “breach” or “default” by TCMD or VMD shall be
defined as TCMD’s or VMD’s respective failure to fulfill or perform any obligation of 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
HEIL – SEPT 12, 2013
58
1001679.22 FINAL
1044033.4
such notice of default may be delivered at any time during which a default has occurred and not
been cured. The defaulting Party’s or defaulting Limited Party’s obligation to cure shall not arise
until such notice of default has been delivered as provided herein, and no claim shall be filed with
respect to a default prior to delivery of a default notice and expiration of the cure period as set forth
above.
7.7 Remedies.
(a) General. If any default under this Development Agreement is not cured as
described in Section 7.6, any non-defaulting Party, any non-defaulting Limited Party and/or
Intended Beneficiary shall, except to the extent otherwise limited by an express provision of this
Development Agreement, be entitled to enforce the provisions and any remedy provided in this
Development Agreement at law or in equity, and relief in the nature of injunctive relief,
mandamus, specific performance or damages or a combination may be awarded. The remedies
available shall include, but not be limited to, ex parte applications for temporary restraining orders,
preliminary injunctions and permanent injunctions and actions for specific performance of the
defaulting Party’s or defaulting Limited Party’s obligations and/or damages. All of the remedies
permitted or available under this Development Agreement, at law, by statute or in equity shall be
cumulative and not in the alternative, and invocation of any such right or remedy shall not
constitute a waiver or election of remedies with respect to any other permitted or available right or
remedy. For the avoidance of doubt and in order to clarify the effect of the foregoing as it relates to
the Financing Plan: (i) the Town hereby forever waives and relinquishes any claim or right to
terminate the Tax Credit for so long as any District Debts remain outstanding; and (ii) in
consideration of this Development Agreement constituting an intergovernmental agreement by
and among the Town, AURA, TCMD and VMD pursuant to C.R.S. §§ 29-1-203 and 29-20-105,
each such governmental or quasi governmental entity expressly acknowledges that the Town,
AURA, TCMD and VMD each shall have standing to enforce this Development Agreement,
including specific 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.
HEIL – SEPT 12, 2013
59
1001679.22 FINAL
1044033.4
(c) Limited Parties. The Limited Parties’ remedies shall be as follows:
(i) AURA. AURA shall have no rights arising under this Development
Agreement to enforce any obligation of any other Party or to obtain any remedy against any
Party.
(ii) EMD. EMD shall have all rights and remedies available to Master
Developer.
(iii) The Commercial PIC. The Commercial PIC’s rights arising under
this Development Agreement to enforce any obligation of any other Party or to obtain any
remedy against any Party shall be limited to the following rights and remedies:
(A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the
Town’s obligations to maintain the Tax Credit in effect.
(B) Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax and
Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D) Pursuant to Section 6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
(iv) The Mixed Use PIC. The Mixed-Use PIC’s rights arising under this
Development Agreement to enforce any obligation of any other Party or to obtain any
remedy against any Party shall be limited to the following rights and remedies:
(A) Pursuant to Sections 4.2(a) and 6.2, the right to enforce the
Town’s obligations to maintain the Tax Credit in effect.
(B) Pursuant to Section 4.2(b), the right to require the Town’s
cooperation in implementing the Add-On RSF.
(C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax and
Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D) Pursuant to Section 6.5(b), the right to enforce the Town’s
obligations with respect to use of the Municipal Payments and the Credit PIF
Revenues that do not constitute Municipal Payments.
HEIL – SEPT 12, 2013
60
1001679.22 FINAL
1044033.4
(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.
HEIL – SEPT 12, 2013
61
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
62
1001679.22 FINAL
1044033.4
pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain the
Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a
determination that the Town’s right to receive the Municipal Payments, is invalid, void,
unenforceable or that the remedy of specific performance is not available with respect to the
Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal
Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties of
a material benefit of the bargain and being otherwise inequitable to such Parties and Limited
Parties; and (ii) this Development Agreement shall be deemed void and of no further effect unless
modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner that the
Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s right to
receive Municipal Payments, as applicable, can be materially performed and complied with by
alternative means. Unless amended or reformed as provided herein, entry of a final order holding
the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable shall entitle
Master Developer and affected Landowners to entry of an order enforcing the remedy set forth in
Section 7.7(b)(ii) and, correspondingly, entry of a final order holding the Town’s right to receive
Municipal Payments invalid or unenforceable shall entitle the Town to disconnect the Property.
8.7 Further Assurances. Each Party shall undertake such actions and shall execute and
deliver to the other all such other further instruments and documents as may be reasonably
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
HEIL – SEPT 12, 2013
63
1001679.22 FINAL
1044033.4
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):
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
HEIL – SEPT 12, 2013
64
1001679.22 FINAL
1044033.4
141 Union Boulevard, Suite 150
Lakewood, CO 80228
Attn: Lisa Jacoby
Telephone: (303) 987-0835
Email: ljacoby@sdmsi.com
HEIL – SEPT 12, 2013
65
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
66
1001679.22 FINAL
1044033.4
0101 Fawcett Road, Suite 210
Avon, CO 81620
Attn: Michael Lindholm, President
Telephone: (970) 949-6776
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
HEIL – SEPT 12, 2013
67
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
68
1001679.22 FINAL
1044033.4
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
HEIL – SEPT 12, 2013
69
1001679.22 FINAL
1044033.4
8.13 Counterparts. This Development Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this
Development Agreement as of the Execution Date, with the intent that this Development
Agreement shall be legally binding on each such signatory and legally attach to and encumber the
Property upon the occurrence of the Effective Date.
[SIGNATURE AND NOTARY PAGES FOLLOW THIS PAGE]
HEIL – SEPT 12, 2013
70
1001679.22 FINAL
1044033.4
Signature and Notary Pages for
Consolidated, Amended and Restated Annexation and Development Agreement
for The Village (at Avon)
PARTIES:
TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as __________________ of THE TOWN OF AVON, a home rule
municipal corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
71
1001679.22 FINAL
1044033.4
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
72
1001679.22 FINAL
1044033.4
VMD:
THE VILLAGE METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by Daniel J. Leary as President of THE VILLAGE METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
73
1001679.22 FINAL
1044033.4
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited liability
company
By:
Name: Michael Lindholm
Title: Authorized Signatory
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by Michael Lindholm as Authorized Signatory of TRAER CREEK LLC, a Colorado limited
liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
74
1001679.22 FINAL
1044033.4
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager of EMD
LIMITED LIABILITY COMPANY, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
75
1001679.22 FINAL
1044033.4
LIMITED PARTIES:
AURA:
THE AVON URBAN RENEWAL AUTHORITY, a
body corporate duly organized and existing as an
urban renewal authority under the laws of the State
of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as _____________________ of THE AVON URBAN RENEWAL
AUTHORITY, a body corporate duly organized and existing as an urban renewal authority under
the laws of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
76
1001679.22 FINAL
1044033.4
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as ________________________ of THE VILLAGE (AT AVON)
MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
77
1001679.22 FINAL
1044033.4
COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as ________________________ of THE VILLAGE (AT AVON)
COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
78
1001679.22 FINAL
1044033.4
ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representatives of BNP Paribas, an international bank (as defined in the
foregoing Development Agreement, “BNP”), in its capacity as the issuer of irrevocable direct pay
letter(s) of credit securing the Traer Creek Metropolitan District Variable Rate Revenue Bonds,
Series 2002, and the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series
2004, hereby acknowledge and consent to the foregoing Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon).
BNP PARIBAS:
By:
Name:
Title:
BNP PARIBAS:
By:
Name:
Title:
STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
79
1001679.22 FINAL
1044033.4
STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________, 2013,
by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
HEIL – SEPT 12, 2013
A-1 1001679.22 FINAL
EXHIBIT A
Legal Description of the Property
Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the plat
thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception
No. 795007;
Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1,
according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and
Recorder under Reception No. 898173;
Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon)
Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No. 796831;
Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof
recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception No.
882776; and
Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts B
and F, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No. 200712166.
TOGETHER WITH THE FOLLOWING PARCEL (OS5):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line,
described as follows:
Beginning at the N 1/4 corner of said Section 17; thence S89°23'36"E 526.76 feet, along the
northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad; thence, departing said northerly line of Section 17, the following two
courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said
northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing
railroad tracks: (1) S80°36'27"W 267.66 feet; (2) 263.93 feet along the arc of a curve to the right,
having a radius of 2486.03 feet, a central angle of 06°04'58", and a chord which bears S83°38'57"W
263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence N00°20'55"W 78.44 feet, along
said westerly line, to the point of beginning containing 0.53 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (OS6):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and
north of the centerline of the Eagle River, described as follows:
Beginning at the Northeast corner of said Section 17; thence S01°41'49"E 96.93 feet, along the
easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said easterly
HEIL – SEPT 12, 2013
A-2 1001679.22 FINAL
line, S01°41'49"E 73.07 feet, to the centerline of said Eagle River; thence the following four courses
along said centerline (Filum aquce): (1) N89°24'49"W 1037.9 feet; (2) N86°07'49"W 472.00 feet; (3)
N89°29'49"W 538.00 feet; (4) S82°33'11"W 595.15 feet, to the westerly line of said NE 1/4; thence
N00°20'55"W 49.18 feet, along said westerly line to the southerly right-of-way line of the Denver &
Rio Grande Western Railroad; thence, departing said westerly line of Section 17, the following five
courses along the southerly right-of-way line of the Denver & Rio Grande Western Railroad, said
southerly right-of-way line being parallel with and 50 feet southerly of the centerline of the existing
railroad tracks: (1) 279.72 feet along the arc of a curve to the left, having a radius of 2586.03 feet, a
central angle of 06°11'51", and a chord which bears N83°42'23"E 279.58 feet; (2) N80°36'27"E
350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of 3171.27 feet, a
central angle of 12°24'07", and a chord which bears N86°48'31"E 685.10 feet; (4) S86°59'25"E
1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a radius of 2549.33 feet, a
central angle of 02°31'46". and a chord which bears S85°43'31"E 112.53 feet, to the True Point of
Beginning, containing 5.28 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL):
Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as a whole as follows:
Beginning at the Northwest corner of said Section 8; thence the following four courses along the
northerly line of said Section 8: (1) N88°40'41"E 1379.49 feet, to the W 1/16 corner of said Section
8 and Section 5 of said Township and Range; (2) N88°40'41"E 1379.49 feet, to the 1/4 corner of
said Sections 8 and 5; (3) N88°42'58"E 1385.36 feet, to the E 1/16 corner of said Sections 8 and
5; (4) N88°42'58"E 1385.36 feet, to the corner of said Sections 5, 8 and 9 and Section 4 of said
Township and Range; thence the following four courses along the northerly line of said Section 9:
(1) N83°29'30"E 1386.63 feet, to the W 1/16 corner of said Sections 9 and 4; (2) N83°29'30"E
1386.64 feet, to the 1/4 corner of said Sections 9 and 4; (3) N83°24'12"E 1386.30 feet, to the E
1/16 corner of said Sections 9 and 4; (4) N83°24'12"E 1386.30 feet, to the corner of said Sections
4, 9 and 10 and Section 3 of said Township and Range; thence the following two courses along
the northerly line of said Section 10: (1) N86°39'24"E 1381.29 feet, to the W 1/16 corner of said
Sections 10 and 3; (2) N86°39'24"E 1299.94 feet; thence, departing said northerly line,
S01°34'07"W 2699.66 feet, to the east-west centerline of said Section 10; thence, along said
east-west centerline, S86°32'23"W 1304.06 feet, to the W 1/16 corner of said Section 10; thence
S01°32'50"W 1349.33 feet, along the easterly line of the NW 1/4 SW 1/4 of said Section 10, to the
SW 1/16 corner of said Section 10; thence S86°32'47"W 1384.91 feet, along the southerly line of
said NW 1/4 SW 1/4, to the S 1/16 corner of said Sections 10 and 9; thence S77°10'15"W 1413.37
feet, along the southerly line of the NE 1/4 SE 1/4 of said Section 9, to the SE 1/16 corner of said
Section 9; thence S01°33'02"W 1475.32 feet, along the easterly line of the SW 1/4 SE 1/4 of said
Section 9, to the E 1/16 corner of said Section 9 and Section 16 of said Township and Range;
thence S72°20'31"W 1450.43 feet, along the southerly line of said SW 1/4 SE 1/4, to the 1/4
corner of said Sections 9 and 16; thence N01°34'18"E 1601.52 feet, to the CS 1/16 corner of said
Section 9; thence S86°07'30"W 1378.19 feet, along the southerly line of the NE 1/4 SW 1/4 of said
Section 9, to the SW 1/16 corner of said Section 9; thence S01°33'13"W 1506.37 feet, along the
easterly line of the SW 1/4 SW 1/4 of said Section 9, to the W 1/16 corner of said Sections 9 and
16; thence N89°55’04”W 1371.96 feet, along the southerly line of said SW 1/4 SW 1/4 to the
section corner of said Sections 8, 9, 16, and 17 of said Township and Range; thence N01°32’00”E
HEIL – SEPT 12, 2013
A-3 1001679.22 FINAL
3.82 feet, along the westerly line of Section 9, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad, said northerly right-of-way line being parallel with and 50 feet northerly
of the centerline of the existing railroad tracks; thence the following two courses along said
northerly right-of-way line: (1) 104.48 feet along the arc of a curve to the left, having a radius of
2649.33 feet, a central angle of 02°15’34”, and a chord which bears N85°51’36”W 104.47 feet; (2)
N86°59’25”W 1213.28 feet, to the westerly line of the SE 1/4 SE 1/4 of said Section 8; thence
N00°51’07”E 1337.77 feet, along said westerly line, to the SE 1/16 corner of said Section 8;
thence N89°54'54"W 1333.58 feet, along the southerly line of the NW 1/4 SE 1/4 of said Section
8, to the CS 1/16 corner of said Section 8; thence N89°58'35"W 1366.46 feet, along the southerly
line of the NE 1/4 SW 1/4 of said Section 8, to the SW 1/16 corner of said Section 8; thence
S00°01'37"E 919.47 feet, along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the
northerly right-of-way line of Interstate Highway No. 70, as described in the deed recorded in
Book 223 at Page 982 in the office of the Eagle County, Colorado, Clerk and Recorder; thence the
following ten courses along said northerly right-of-way line: (1) N65°30'20"W 249.79 feet; (2)
N78°47'50"W 317.2 feet; (3) N83°08'20"W 506.7 feet; (4) 772.2 feet along the arc of a curve to the
right, having a radius of 1462.0 feet, a central angle of 30°15'52", and a chord which bears
N54°57'56"W 763.3 feet; (5) N34°37'50"W 331.1 feet; (6) N34°44'20"W 368.5 feet; (7) 804.9 feet
along the arc of a curve to the left, having a radius of 1812.0 feet, a central angle of 25°27'04", and
a chord which bears N51°29'50"W 798.3 feet; (8) N68°24'50"W 399.7 feet; (9) N49°47'20"W
213.6 feet; (10) N70°20'50"W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7;
thence the following two courses along said northerly line: (1) N89°50'40"E 1194.46 feet, to the
CE 1/16 corner of said Section 7; (2) N89°50'40"E 1378.25 feet, to the 1/4 corner of said Sections
7 and 8; thence the following two courses along the westerly line of said Section 8: (1)
N00°10'53"W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8; thence N00°10'53"W
1369.10 feet, to the point of beginning.
EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in
the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776.
Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3 area
subtracted.
HEIL – SEPT 12, 2013
B-1 1001679.22 FINAL
EXHIBIT B
Form of Special Warranty Deed for Conveyances to Town
SPECIAL WARRANTY DEED
[STATUTORY FORM – C.R.S. § 38-30-115]
[TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado] (“Grantor”), whose street address is [141 Union
Boulevard, Suite 150, c/o Special District Management, Lakewood, CO 80228-1898, County of
Jefferson], State of Colorado, for the consideration of Ten and 00/100 Dollars ($10.00) and other
good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN OF
AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose street
address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of Colorado
(“Grantee”), the real property that is described on Exhibit A attached hereto and made a part
hereof, with all its appurtenances, and warrants the title to the same against all persons claiming
under Grantor, subject to the matters set forth on Exhibit B attached hereto and made a part hereof.
[TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado]
By:
Name:
Title:
STATE OF ___________ )
) ss:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of
____________________, 200__, by _________________________ as ________________ of
_____________________________, a ____________________.
Witness my hand and official seal.
My commission expires:
Notary Public
HEIL – SEPT 12, 2013
B-2 1001679.22 FINAL
EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
HEIL – SEPT 12, 2013
B-3 1001679.22 FINAL
EXHIBIT B
TO SPECIAL WARRANTY DEED
Restrictions and/or Reservations
Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to the following restrictions, which restrictions shall be binding on Grantee and all
successors and assigns of Grantee, and which Grantor and its successors and assigns shall have the
right to enforce by an action for specific performance, mandamus, mandatory or prohibitory
injunction or other equitable or legal remedy:
1. [insert applicable use/other deed restrictions or state non applicable]
Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to Grantor’s reservation of the following rights with respect to the Property:
1. [insert applicable reservations or state non applicable]
Exceptions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to the following exceptions:
1. [insert applicable exceptions]
C-1 1001679.22 FINAL
EXHIBIT C
Form of Covenant and Temporary Easement Agreement
COVENANT AND TEMPORARY EASEMENT AGREEMENT
THIS COVENANT AND TEMPORARY EASEMENT AGREEMENT (this “Easement
Agreement”) is made and entered into as of this _____ day of _________________, 2013
(“Effective Date”), by and between the TOWN OF AVON, a home rule municipal corporation of
the State of Colorado (together with its successors and assigns, “Grantor”); and EMD LIMITED
LIABILITY COMPANY, a Colorado limited liability company (together with its successors and
assigns, “Grantee”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado, legally
described on EXHIBIT A: LEGAL DESCRIPTION OF FS VILLAGE PARCEL
attached hereto and incorporated herein by this reference, which property is generally
referred to as the Forest Service Village Parcel (“FS Village Parcel”).
B. Grantee is the owner of certain real property located in Eagle County, Colorado, legally
described on EXHIBIT B: LEGAL DESCRIPTION OF PLANNING AREA I attached
hereto and incorporated herein by this reference, which property is designated as Planning
Area I (“Planning Area I”) pursuant to The Village (at Avon) PUD Master Plan, Formal
Amendment Two as recorded in the real property records of Eagle County, Colorado on
______________, 2013 at Reception No. ______________ (“PUD Master Plan”).
C. Exhibit F of The Village (at Avon) Amended and Restated PUD Guide dated as of
_______________, 2013 and recorded in the real property records of Eagle County,
Colorado on _______________, 2013 at Reception No. __________________ (“PUD
Guide”), establishes the applicable design and improvement standards (“Design
Standards”) for construction of an extension of Swift Gulch Road as a rural local roadway
(“Planning Area I Access Road”) over, across and through the FS Village Parcel to
provide access to Planning Area I from Planning Area J.
D. Grantor and Grantee are parties to that certain Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon) dated as of
_____________, 2013 and recorded in the real property records of Eagle County, Colorado
on ______________, 2013 at Reception No. ______________ (“Development
Agreement”).
E. Pursuant to Section 4.2(e) of the Development Agreement: (i) Grantor is legally obligated
to execute and deliver this Easement Agreement to Grantee (or to the then-Landowner(s)
of Planning Area I) within three (3) business days after acquiring title to the FS Village
Parcel, but in any event prior to permitting the recordation of a conservation easement or
similar instrument limiting potential development within the FS Village Parcel or any other
conveyance by the Town of the FS Village Parcel or any interest therein; and (ii) this
Easement Agreement shall be recorded as a prior interest to any conservation easement or
C-2 1001679.22 FINAL
similar instrument, and any such subsequent conveyance or grant by the Town shall be
expressly subject and subordinate to this Easement Agreement.
F. Prior to actual construction of the Planning Area I Access Road, the alignment of the
Planning Area I Access Road and the Temporary Easement (as defined in Paragraph 2) are
intended to be conceptual and to assure Grantee’s legal right to construct the Planning Area
I Access Road in an alignment to be finally established at the time of construction drawing
review and approval by Grantor in its governmental capacity in connection with future
development application review for Planning Area I.
G. Grantor and Grantee intend that execution, delivery and recording of this Easement
Agreement shall constitute satisfaction of Grantor’s obligations pursuant to Section 4.2(e)
of the Development Agreement and shall be construed and enforced in that manner which
enables Grantee’s enjoyment of the rights granted to Grantee in this Easement Agreement,
including but not limited to the future construction, operation and maintenance of the
Facilities (as defined in Paragraph 2) in accordance with the terms and conditions of the
Design Standards, the PUD Guide and the Development Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Covenant to Consent to Applications. If Grantor acquires fee title to the FS Village
Parcel, Grantor agrees and covenants that Grantor shall provide consent as the owner of the FS
Village Parcel to Grantee, including providing a properly acknowledged power of attorney to
Grantee, that Grantee may submit a subdivision application pursuant to Avon Municipal Code
§7.16.020(b)(1) for the FS Village Parcel to plat and dedicate a public road right-of-way. The
grant of this covenant shall not restrict or diminish the Grantor’s rights to review a subdivision
application and/or application for road construction, an accompanying pedestrian/recreational trail
facility or other associated public improvements in accordance with the Design Standards and
other applicable standards and procedures of the PUD Guide and the Avon Municipal Code.
2. Grant of Temporary Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, together with its engineers, contractors, employees and similar consultants to Grantee
and/or its assigns as may be necessary or desirable (collectively, “Permittees”), a temporary,
non-exclusive, easement appurtenant to Planning Area I (“Temporary Easement”) over, under,
through and across that portion of the FS Village Parcel which is graphically depicted in
EXHIBIT C: GRAPHIC DESCRIPTION OF TEMPORARY EASEMENT AREA
(“Temporary Easement Area”) for the right to enter upon the Temporary Easement Area and
such adjacent areas of the FS Village Parcel thereto as may reasonably be necessary to survey,
conduct geotechnical and similar physical investigation related to construction of the Roadway
Facilities and the Utility Facilities, as each are defined in Paragraph 3 below (collectively, the
“Facilities”). The Temporary Easement shall commence on the date of execution of this Easement
Agreement and shall continue through the date on which the Planning Area I Access Road is
constructed and dedicated to the Town in accordance with the applicable provisions of the
C-3 1001679.22 FINAL
Development Agreement, the PUD Guide and the Avon Development Code, whereupon the
Temporary Easement and this Easement Agreement shall terminate and shall be of no further force
and effect. Nothing contained herein shall obligate Grantee to install, or cause to be installed, any
or all of the Facilities or to otherwise provide for any such use.
3. Temporary License Agreement. Upon the approval by Grantor of a properly
submitted subdivision application establishing and dedicating a public road right-of-way within
the FS Village Parcel as contemplated by the Development Agreement and this Easement
Agreement, and an approval by Grantor of a properly submitted application and public
improvements agreement for construction of the Facilities within such dedicated public road
right-of-way, Grantor and Grantee will execute a Temporary License Agreement to allow
construction of the Facilities in accordance with the Design Standards and other applicable
procedures and standards set forth in the Development Agreement, the PUD Guide and the Avon
Development Code. The Temporary License Agreement shall permit the Grantee to enter upon the
FS Village Parcel and to: (i) construct and install drive lanes, roadways, landscaping, sidewalks,
bike paths, recreational trail, retaining walls, and other access facilities necessary or desirable for
such access, and all fixtures and devices reasonably used or useful in the operation of such
facilities (collectively, the “Roadway Facilities”); (ii) construct and install water lines, sanitary
sewer lines, storm drainage facilities, electrical lines, gas lines, telephone lines, fiber optic lines,
cable television lines and similar utilities and utility facilities, together with all sleeves, conduit,
junction boxes, vaults, fixtures and devices reasonably used or useful in the operation of such
facilities, whether publicly or privately owned (collectively, the “Utility Facilities”); and, (iii)
stage construction materials and equipment within designated areas on the Temporary Easement
Area as may be approved by the Town. The form of Temporary License Agreement is attached as
EXHIBIT D: FORM OF LICENSE AGREEMENT.
4. Entry; Site Investigation; Construction Staging; Restoration of Surface. In
conducting the design and construction of the Facilities, including but not limited to surveying,
geotechnical testing, other physical inspection and similar matters, it will be necessary or desirable
for Grantee and/or the Permittees to enter upon and/or cause disturbances to the surface of the
Temporary Easement Area and potentially to the surface of adjacent areas of the FS Village Parcel.
Grantee shall provide not less than five (5) business days’ written notice to Grantor of any planned
entrance upon and/or conduct of physical testing or inspection of the Temporary Easement Area
and/or adjacent areas of the FS Village Parcel. Grantor shall coordinate with Grantee regarding
the scope, nature and duration of such activities, but shall not unreasonably object to or interfere
with Grantee’s and/or Permittees’ conduct of such activities. To the extent such activities disturb
vegetation or otherwise disturb the surface, Grantee shall promptly cause revegetation and/or
otherwise cause restoration of the affected area to a condition reasonably consistent with its
condition prior to Grantee’s and/or Permittees’ conduct of such activities.
5. Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive
easement interests within the Temporary Easement Area and the FS Village Parcel so long as such
interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s or
Permittees’ full exercise of Grantee’s rights in this Easement Agreement, including but not limited
to the rights set forth in the Temporary Easement and the Temporary License Agreement. Grantor
reserves the right to use and occupy the FS Village Parcel and the Temporary Easement Area for
any and all purposes not inconsistent with the rights and privileges granted herein, including the
C-4 1001679.22 FINAL
grant and conveyance of such conservation easements or other real property interests in and to the
FS Village Parcel and the Temporary Easement Area so long as all such interests and conveyances
are made expressly subject and subordinate to Grantee’s rights under this Easement Agreement.
6. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record as
of the Effective Date. Grantor makes no representations or warranties regarding the status of title
to the FS Village Parcel or the Temporary Easement Area as of the Effective Date, and the grant of
easements and other rights pursuant to this Easement Agreement is in the nature of a bargain and
sale conveyance. Except with Grantee’s prior written consent, all matters affecting title to the FS
Village Parcel and the Temporary Easement Area after the Effective Date shall be subordinate to
the terms and conditions of this Easement Agreement.
7. Covenants. Each and every benefit and burden of this Easement Agreement shall inure to
and be binding upon Grantor, Grantee and their respective successors and assigns. The burdens
and benefits hereof shall run with title to the FS Village Parcel and the Temporary Easement Area,
and shall run with title to Planning Area I. Any person or entity that acquires any interest in the FS
Village Parcel and/or the Temporary Easement Area, and any person or entity that acquires any
interest in Planning Area I, shall be bound by the burdens and entitled to the benefits of this
Easement Agreement. The burdens and benefits of this Easement Agreement constitute covenants
that run with and encumber title to the FS Village Parcel, the Temporary Easement Area and
Planning Area I.
8. Assignment. To the extent Traer Creek Metropolitan District or another District (as
defined in the Development Agreement) undertakes to construct all or part of the Facilities
pursuant to Section 3.2(a) of the Development Agreement, Grantee shall have the right to assign to
Traer Creek Metropolitan District or such other District (in whole or in part) its rights and
obligations arising pursuant to this Easement Agreement.
9. Legal Fees and Costs. The prevailing party in any legal action with respect to this
Easement Agreement shall be awarded it reasonable costs and attorneys' fees incurred with respect
thereto.
10. Counterparts. This Easement Agreement may be executed in multiple counterparts, each
of which shall be deemed to be an original and all of which taken together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement as
of the date first written above.
GRANTOR: TOWN OF AVON, a home rule municipal corporation of the State of Colorado
By:___________________________ Attest:______________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
C-5 1001679.22 FINAL
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2013, by Rich Carroll, as Mayor of the TOWN OF AVON, a home rule
municipal corporation of the State of Colorado.
Witness my hand
and official seal. ____________________________________
Notary Public
My commission expires: ______________________________.
GRANTEE: EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013 by Michael Lindholm, President of Lava Corporation, a
Colorado corporation, as Manager of EMD LIMITED LIABILITY COMPANY, a Colorado
limited liability company.
Witness my hand
and official seal.___________________________________
Notary Public
My commission expires:
C-6 1001679.22 FINAL
EXHIBIT A
LEGAL DESCRIPTION OF THE FS VILLAGE PARCEL
Sixth Principal Meridian, Colorado
T. 5 S. R. 81 W.,
sec. 8, lots 1 and 2
C-7 1001679.22 FINAL
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA I
Planning Area I is that portion of the following legal description which is depicted on the PUD
Master Plan and designated as Planning Area I.
C-8 1001679.22 FINAL
EXHIBIT C
GRAPHIC DEPICTION OF TEMPORARY EASEMENT AREA
C-9 1001679.22 FINAL
EXHIBIT D FORM OF TEMPORARY LICENSE AGREEMENT
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
_________________________ FOR THE GRANT OF A TEMPORARY LICENSE TO
INSTALL AND CONSTRUCT A ROAD ON TOWN-OWNED PROPERTY
1. Parties. The parties to this agreement (“Agreement”) are the TOWN OF AVON,
COLORADO, a Colorado home rule municipality (the “Town”) and
___________________________ (the “Licensee”). This Agreement is effective upon
execution by the Licensee and following execution by the Town Manager on the date indicated
below.
2. Recitals and Purpose.
(a) The Town is the owner of certain property located in the Town of Avon, Eagle County,
Colorado, commonly known as the ________________________ (“Town
Property”).
(b) The Licensee desires to encroach upon and occupy the Town Property for the purpose
of installing and constructing certain Roadway Facilities and Utility Facilities
(collectively referred to as “Facilities”) as described in the Covenant and Temporary
Easement Agreement dated _____, (“Easement Agreement”).
(c) The Town and Licensee have agreed to enter into this temporary license agreement
under the terms and conditions as hereinafter specified in this Agreement provided that
nothing in this Agreement shall waive or modify any obligation to seek building
permits, variances, or other approval necessary to meet any obligation imposed by law.
The Licensee remains obligated to apply for and obtain all necessary permits and
approvals, pay all required fees, and comply with all applicable local laws, including
but not limited to any applicable provisions of this Agreement, Exhibit F of The Village
(at Avon) Amended and Restated PUD Guide dated as of____________, 20[__] and
recorded in the real property records of Eagle County, Colorado on _______, 20[__] at
Reception No. __________, (“PUD Guide"), and the Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon) dated as
of ____________, 20[__] and recorded in the real property records of Eagle County,
Colorado on__________, 20[__] at Reception No. _______ (“Development
Agreement”).
3. Terms and Conditions.
(a) License Granted. The Town hereby grants to the Licensee a temporary license for the
encroachment and occupation as described in the public improvements agreements
approved by the Town to construct the Facilities; provided, however, that nothing in
this Agreement is intended to waive, alter, modify, or permit any violation of any local
law applicable within the Town of Avon. Except for the encroachment and occupation
of the Facilities, no other encroachment, structure, improvement, vehicle, fence, wall,
C-10 1001679.22 FINAL
landscaping, or any other real or personal property shall be erected, installed,
constructed, parked, stored, kept, or maintained in any way or fashion on the Town
Property.
(b) Term and Termination. This Agreement shall continue until the Roadway Facilities are
dedicated to the Town and the applicable portions of the Utility Facilities are dedicated
to the respective utility providers in accordance with the procedures and timeframes
established in the public improvements agreement to construct the Facilities. Upon
dedication and final acceptances of the Facilities this Agreement is terminated. In the
event that the Licensee fails to comply with the construction timeframe, procedures or
other provisions of the public improvements agreement the Town may elect to provide
notice of default in writing to the Licensee. If the Town has provided such notice of
default and Licensee is unable to cure the default within ninety (90) days after receipt
of a notice of default, then Town may terminate this Agreement. In the event that
Licensee has failed to complete the Facilities as required by the public improvements
agreement and the Town has elected to utilize the financial security to complete the
Facilities, then Town may immediately terminate this Agreement.
(c) Indemnification. The Licensee expressly agrees to, and shall, indemnify and hold
harmless the Town and any of its officers, agents, or employees from any and all
claims, damages, liability, or court awards, including costs and attorney’s fee that are
or may be awarded as a result of any loss, injury or damage sustained or claimed to
have been sustained by anyone, including but not limited to, any person, firm,
partnership, or corporation, in connection with or arising out of any omission or act of
commission by the Licensee or any of its employees, agents, partners, or lessees, in
encroaching upon the Town Property. In particular and without limiting the scope of
the foregoing agreement to indemnify and hold harmless, the Licensee shall indemnify
the Town for all claims, damages, liability, or court awards, including costs and
attorney’s fees that are or may be awarded as a result of any loss, injury or damage
sustained or claimed to have been sustained by anyone, including but not limited to,
any person, firm, partnership, or corporation, in connection with or arising out of any
claim in whole or in part that all or any portion of the Facilities and encroachment
permitted by this Agreement constitutes a dangerous and/or unsafe condition within a
public right-of-way.
(d) Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy or
policies of insurance protecting against injury, damage or loss occurring on the
licensed premises in the minimum amount of $600,000.00 per occurrence. Such policy
or policies shall name the Town as an “additional insured”. However, the Licensee’s
failure to take such steps to insure the premises shall not waive, affect, or impair any
obligation of the Licensee to indemnify or hold the Town harmless in accordance with
this Agreement.
4. Assignment. This Agreement shall not be assigned by the Licensee without the prior written
consent of the Town which may withhold its consent for any reason; provided that the Town
encourages the Licensee to inform any purchaser of the Licensee’s property or interests of the
C-11 1001679.22 FINAL
existence of this Agreement and the Town will promptly consider any request by the Licensee
for assignment of this Agreement to such subsequent purchaser.
5. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be
deemed to have been sufficiently given for all purposes if personally served or if sent by
certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such
notice is to be given at the address set forth on the signature page below, or at such other
address as has been previously furnished in writing, to the other party or parties. Such notice
shall be deemed to have been given when deposited in the United States Mail.
6. Integration and Amendment. This Agreement represents the entire agreement between the
parties and there are no oral or collateral agreements or understandings; provided, however, the
Easement Agreement shall remain in effect in accordance with its terms. This Agreement may
be amended only by an instrument in writing signed by the parties. If any other provision of
this Agreement is held invalid or unenforceable, no other provision shall be affected by such
holding, and all of the remaining provisions of this Agreement shall continue in full force and
effect. Invalidation of the Agreement in its entirety shall revoke any authorization, whether
explicit or implied to the continuing use and occupancy of the Town Property for the Facilities.
7. Governing Law and Venue. This Agreement shall be governed by the laws of the State of
Colorado and venue for any action arising under this agreement shall be in the appropriate
court for Eagle County, Colorado.
8. Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either party.
9. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the parties,
their respective legal representatives, successors, heirs, and assigns; provided, however, that
nothing in this paragraph shall be construed to permit the assignment of this Agreement except
as otherwise expressly authorized herein.
10. Underlying Intent and Scope. It is the intent of this Agreement that the Town shall incur no
cost or expense attributable to or arising from the construction, maintenance, or operation of
the Facilities and encroachment permitted by this Agreement and that, in all instances, the risk
of loss, liability, obligation, damages, and claims associated with the encroachment shall be
borne by the Licensee. This Agreement does not confer upon the Licensee any other right,
permit, license, approval, or consent other than that expressly provided for herein and this
Agreement shall not be construed to waive, modify, amend, or alter the application of any
other federal, state, or local laws, including laws governing zoning, land use, property
maintenance, or nuisance.
11. Authority to Bind Party. The undersigned persons represent that they are expressly
authorized to execute this Agreement on behalf of the Parties and to bind their respective
Parties and that the Parties may rely upon such representation of authority.
C-12 1001679.22 FINAL
12. Legal Fees and Costs. The prevailing party in any legal action with respect to this Easement
Agreement shall be awarded it reasonable costs and attorneys’ fees incurred with respect
thereto.
DATED THIS ____________ DAY OF _______________, 20____.
TOWN OF AVON:
By: ________________________________
Town Manger
ATTEST: Approved as to Form:
_________________________________ ________________________
Town Clerk or Deputy Town Clerk For Town Attorney’s Office
LICENSEE:
By: ________________________________
Print Name: _________________________
Address: ___________________________
___________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ________ day of
____________________, 20____, personally by _______________________________.
___________________________________
Notary Public
(SEAL) Commission expires: ____________________________
D-1 1001679.22 FINAL
EXHIBIT D
Prioritized Capital Projects
Prioritized Capital Projects List
Budgetary Cost Estimates
Item Lot 1
East Beaver
Creek Blvd.
Lot 1
Main Street
Lot 1
North/South
Roads (2)
Planning Area J
(east) East/West
Road
General
Conditions
750,000 715,000 560,000 280,000
Demolition 39,825 1,726,900 166,650 266,675
Earthwork 1,108,275 119,685 123,390 187,440
Roadway 1,630,990 1,349,930 393,310 719,465
Utilities 894,300 1,129,900 227,600 356,800
Erosion Control 27,000 27,000 16,600 9,500
Landscaping 340,238 311,890 128,800 180,050
Electrical &
Lighting
347,280 289,400 115,760 185,216
Roundabouts 000 2,000,000 000 000
Subtotal 5,137,908 7,669,705 1,732,110 2,185,146
20% Contingency 1,027,582 1,533,941 346,422 437,029
Total 6,200,000 9,200,000 2,100,000 2,600,000
E-1 1001679.22 FINAL
EXHIBIT E
Schedule of Past Developer Advances and Avon Receivable
Priority of Repayment
Contract
Date
Repayment
Party
Principal
Amount
Accrued
Interest Total2
Developer Advances
Amended and Restated Funding and Reimbursement Agreement1
05/08/200
2 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
Facilities Acquisition Agreement3 05/29/200
2 See Note 3 below 4,029,786 2,193,749 6,223,535
2003 Funding and Reimbursement Agreement, as amended
03/25/200
4 Traer Creek LLC 2,560,673 1,672,846 4,233,519
2006 Operation Funding Agreement
01/26/200
6 Traer Creek LLC 576,310 249,048 825,358
2007 Operation Funding Agreement
11/30/200
6 Traer Creek LLC 841,980 335,769 1,177,749
2008 Operation Funding Agreement
12/14/200
7 Traer Creek LLC 279,116 88,079 367,195
2009 Operations Advance
12/14/200
7 Traer Creek LLC 87,694 15,161 102,855
2010 Operations Advance
12/14/200
7 Traer Creek LLC 122,743 10,188 132,931
2011 Operations Advance
12/14/200
7 Traer Creek LLC 72,682 - 72,682
Total Developer advances 12,047,736 7,022,299 19,070,035
Avon Receivable
2008 Avon Receivable
various see
attached Town of Avon 482,642 - 482,642
2009 Avon Receivable
various see
attached Town of Avon 1,064,062 - 1,064,062
2010 Avon Receivable
various see
attached Town of Avon 1,126,649 - 1,126,649
2011 Avon Receivable
various see
attached Town of Avon 848,956 - 848,956
Total Avon receivable 3,522,309 - 3,522,309
Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344
1The net credit for amounts owed to the District by the Developer for Cable TV Filing 1; Utilities Filing 3; and the Parking Structure (645k) with
accumulated interest that were in excess of the additional developer advances not captured above for the Dirt Removal Agreement ($417k) was applied
against the accrued interest for the Amended and Restated Funding and Reimbursement Agreement 2All totals are as of December 31, 2011.
3The District's records reflect that the amount outstanding under the Facilities
Acquisition Agreement are as follows:
Traer Creek-RP LLC $ 2,440,000 $ 1,328,296 $ 3,768,296
Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, LLLP 1,589,786 865,453 2,455,239
Total amount outstanding at December 31, 2011 $ 4,029,786 $ 2,193,749 $ 6,223,535
Repayment of amounts due under the Facilities Acquisition Agreement will be allocated equally (on a pari passu basis) as funds are available after
reimbursement to Traer Creek LLC under the Amended and Restated Funding and Reimbursement Agreement dated May 8, 2002, as amended.
E-2 1001679.22 FINAL
Priority of Repayment
Date
Obligatio
n
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2002 Funding and Reimbursement Agreement 5/7/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
2003 Funding and Reimbursement Agreement 9/17/2003 Traer Creek LLC 860,673 1,672,846 2,533,519
2003 Funding and Reimbursement Agreement
10/22/200
3 Traer Creek LLC 500,000 - 500,000
2003 Funding and Reimbursement Agreement
11/30/200
3 Traer Creek LLC 950,000 - 950,000
2003 Funding and Reimbursement Agreement 1/19/2004 Traer Creek LLC 250,000 - 250,000
Facilities Acquisition Agreement 3 3/10/2005
Traer Creek-RP LLC /
Buffalo Ridge 4,029,786 2,193,749 6,223,535
2006 Operation Funding Agreement 4/18/2006 Traer Creek LLC 45,016 249,048 294,064
2006 Operation Funding Agreement 5/24/2006 Traer Creek LLC 227,197 - 227,197
2006 Operation Funding Agreement 8/9/2006 Traer Creek LLC 69,255 - 69,255
2006 Operation Funding Agreement 9/1/2006 Traer Creek LLC 66,832 - 66,832
2006 Operation Funding Agreement 9/19/2006 Traer Creek LLC 5,842 - 5,842
2006 Operation Funding Agreement
10/19/200
6 Traer Creek LLC 30,922 - 30,922
2006 Operation Funding Agreement
11/22/200
6 Traer Creek LLC 80,195 - 80,195
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC 15,505 - 15,505
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC 8,938 - 8,938
2006 Operation Funding Agreement 1/17/2007 Traer Creek LLC 26,608 - 26,608
2007 Operation Funding Agreement 7/20/2007 Traer Creek LLC 79,980 335,769 415,749
2007 Operation Funding Agreement 8/17/2007 Traer Creek LLC 165,980 - 165,980
2007 Operation Funding Agreement 10/3/2007 Traer Creek LLC 151,980 - 151,980
2007 Operation Funding Agreement
10/30/200
7 Traer Creek LLC 152,000 - 152,000
2007 Operation Funding Agreement
12/14/200
7 Traer Creek LLC 292,040 - 292,040
2008 Operation Funding Agreement 1/31/2008 Traer Creek LLC 13,168 88,079 101,247
2008 Operation Funding Agreement 2/28/2008 Traer Creek LLC 12,500 - 12,500
2008 Operation Funding Agreement 3/31/2008 Traer Creek LLC 12,500 - 12,500
2008 Operation Funding Agreement 4/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 5/31/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 6/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 7/31/2008 Traer Creek LLC 30,450 - 30,450
2008 Operation Funding Agreement 8/31/2008 Traer Creek LLC 31,575 - 31,575
2008 Avon Receivable 9/1/2008 Town of Avon EA 46,813 - 46,813
2008 Avon Receivable 9/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 9/1/2008 Town of Avon STSF 37,276 - 37,276
2008 Operation Funding Agreement 9/30/2008 Traer Creek LLC 30,450 - 30,450
2008 Avon Receivable 10/1/2008 Town of Avon EBC 58,206 - 58,206
2008 Avon Receivable 10/1/2008 Town of Avon MS 37,276 - 37,276
2008 Operation Funding Agreement
10/31/200
8 Traer Creek LLC 30,450 - 30,450
2008 Avon Receivable 11/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 11/1/2008 Town of Avon STSF 39,276 - 39,276
2008 Operation Funding Agreement
11/30/200
8 Traer Creek LLC 12,500 - 12,500
2008 Avon Receivable 12/1/2008 Town of Avon EBC 49,901 - 49,901
2008 Avon Receivable 12/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 12/1/2008 Town of Avon STSF 39,276 - 39,276
E-3 1001679.22 FINAL
Priority of Repayment
Date
Obligatio
n
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2008 Operation Funding Agreement
12/31/200
8 Traer Creek LLC 14,173 - 14,173
2009 Avon Receivable 1/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 1/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 2/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 2/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 3/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 3/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 4/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 4/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 5/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 5/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 6/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 6/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 7/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 7/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 8/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 8/1/2009 Town of Avon STSF 186,467 - 186,467
2009 Avon Receivable 9/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 9/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 9/1/2009 Town of Avon EBC 48,897 - 48,897
2009 Avon Receivable 10/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 10/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 11/1/2009 Town of Avon MS 3,251 - 3,251
2009 Avon Receivable 11/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 12/1/2009 Town of Avon MS - - -
2009 Avon Receivable 12/1/2009 Town of Avon STSF 54,099 - 54,099
2009 Operations Advance
12/31/200
9 Traer Creek LLC 87,694 15,161 102,855
2010 Avon Receivable 1/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 1/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 2/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 2/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 3/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 3/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 4/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 4/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 5/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 5/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 6/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 6/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 7/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 7/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 8/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 8/1/2010 Town of Avon STSF 92,181 - 92,181
2010 Avon Receivable 9/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 9/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 10/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 10/1/2010 Town of Avon STSF 56,403 - 56,403
E-4 1001679.22 FINAL
Priority of Repayment
Date
Obligatio
n
Was
Incurred
Repayment
Party
Principal
Amount
Accrued
Interest Total 2
2010 Avon Receivable 11/1/2010 Town of Avon MS 8,126 - 8,126
2010 Avon Receivable 11/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 12/1/2010 Town of Avon MS - - -
2010 Avon Receivable 12/1/2010 Town of Avon STSF 56,407 - 56,407
2010 Operations Advance
12/31/201
0 Traer Creek LLC 122,743 10,188 132,931
2011 Avon Receivable 1/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 1/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 2/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 2/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 3/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 3/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 4/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 4/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 5/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 5/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 6/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 6/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 7/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 7/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 8/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 8/1/2011 Town of Avon STSF 42,721 - 42,721
2011 Avon Receivable 9/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 9/1/2011 Town of Avon STSF 57,082 - 57,082
2011 Avon Receivable 10/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 10/1/2011 Town of Avon STSF 57,084 - 57,084
2011 Operations Advance
12/31/201
1 Traer Creek LLC 72,682 - 72,682
Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344
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.
1044033.48
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
2
1044033.48
Agreement. None of the conveyances referred to in Recital E were accompanied by a specific
written grant of the power to amend the Original Agreement as provided in Section 1.4 of the
Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being
parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original
Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted any power to
consent or object to any amendment of the Original Agreement (except for the rights of BNP,
derived in its capacity as the issuer of an irrevocable direct pay letter of credit securing the Traer
Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002 and the Traer Creek
Metropolitan District Variable Rate Revenue Bonds, Series 2004, to consent to TCMD’s
execution of any such amendment). As provided in Section 1.4 of the Original Agreement, no
person or entity other than the Town, EMD, TCMD and TCLLC is required or has a right to
execute or acknowledge this Development Agreement as a condition of this Development
Agreement being legally effective and binding on all parties to the Original Agreement and all
Landowners.
G. For ease of administration and in recognition of the fact the ownership of the
Property has and will continue to become diverse as the Project develops, the Developer
Affiliates have designated Master Developer to act on their behalf for all purposes in connection
with this Development Agreement, including but not limited to negotiation and execution of this
Development Agreement and any future amendments hereto.
H. Master Developer, certain of the Developer Affiliates, TCMD, the Town and
other parties asserted various legal claims in the consolidated cases 2008 CV 385 and 2010 CV
316 (collectively, consolidated as Case No. 2008 CV 385, the “Litigation”) and the parties to the
Litigation desired to avoid the cost of trial, the cost of a protracted appellate process, the
uncertainty and potential costs of remand of portions of the Litigation to the trial court, and the
uncertainty of the final outcome of Litigation. Therefore, the parties to the Litigation entered
into that certain Settlement 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
3
1044033.48
the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate
dismissal of the Litigation with prejudice and minimize the potential for future legal disputes.
K. During the period between the Original Effective Date and the Execution Date
and in reliance on the revenue sharing and infrastructure financing arrangements established by
the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer
Affiliates have made large investments in Public Improvements located both within the Property
and outside of the Property. The foregoing has resulted in:
(1) Full satisfaction of the following obligations of TCMD under the terms
and conditions of the Original Agreement, with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a) Construction of the Interstate 70 Interchange and the Highway 6
Connector Road as defined in § 4.2 of the Original Agreement;
(b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of
the Original Agreement, in the amount of $100,000;
(c) Construction of the Phase 1 Improvements and the Phase 2
Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement;
(d) Construction of the Swift Gulch Road Improvements as defined in
§ 4.3(c) of the Original Agreement;
(e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of
the Original Agreement; and
(f) Those obligations set forth in § 4.3(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;
4
1044033.48
(b) Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
L. The Town has adopted Ordinance No. 12-10, which approved this Development
Agreement, approved the PUD Guide and PUD Master Plan, repealed Ordinance No. 06-17, and
took other actions stated in Ordinance No. 12-10 to implement in part the Settlement Term
Sheet.
M. Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
will require substantial additional investments by the Districts, the PICs, Master Developer, the
Developer Affiliates and/or other Landowners. All such completed and to be constructed Public
Improvements will serve the needs of the Project and the Town. Such prior and future
investments can be supported only if there are assurances that development of the Project will be
permitted to proceed to ultimate completion as contemplated in this Development Agreement
and the PUD Guide.
N. The Vested Property Rights Statute and the Municipal Code (as in effect on the
Execution Date) authorize the Town to enter into development agreements which provide for the
vesting of property development rights with a term of greater than three (3) years.
O. Town Council has determined that granting Vested Property Rights for the
duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land
use planning process, stimulate economic growth, secure the reasonable investment-backed
expectations of Landowners and foster cooperation between the public and private sectors in the
area of land use planning and development.
P. Town Council specifically finds that this Development Agreement provides
public benefits including but not limited to the following specific public benefits:
(i) development of the Property in accordance with the applicable development standards in the
Development Plan and, to the extent not controlled by the Development Plan, the Municipal
Code (as amended from time to time); (ii) economic development through construction
anticipated to occur in connection with development of the Project; (iii) economic development
through the development of various commercial and residential uses that enhance, complement
and reinforce the Town’s existing economy, commercial base and ad valorem property tax base;
(iv) development of housing to meet the needs of the Avon community; (v) development of
significant property within the Town’s municipal boundaries which promotes economies of scale
in the provision of public services; and (vi) establishment of a public-private cooperative
arrangement that promotes the availability of capital for Public Improvements and promotes the
competitiveness and viability of private development within the Town and the Project.
Q. In exchange for these benefits and the other benefits to the Town contemplated by
this Development Agreement, together with the public benefits served by the orderly
development of the Property, this Development Agreement and the Vested Property Rights
established herein are intended to provide assurance to Master Developer, EMD, the Developer
Affiliates, other Landowners, the Districts, lenders providing financing for development of the
Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued
5
1044033.48
or to be issued by the Districts that development of the Property pursuant to the terms and
conditions of the Development Plan and the Approved SSDPs can occur without impediment or
impairment of the Vested Property Rights.
R. The Limited Parties have executed this Development Agreement only for the
limited purposes expressly set forth herein and with the express understanding that the Limited
Parties shall not be construed to have any rights, duties, obligations or remedies arising under
this Development Agreement except to the extent expressly set forth herein with respect to each
Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited
Party shall be strictly limited to those expressly set forth in this Development Agreement as a
right, duty, obligation or remedy of such Limited Party.
S. Lenders have executed this Development Agreement for the sole purpose of
evidencing their respective consent and subordination to the Recording of this Development
Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any
obligation or acquiring any enforcement right or remedy arising under this Development
Agreement.
T. BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s consent to approval of the Financing Plan and related
matters addressed in this Development Agreement. Additionally, BNP is an Intended
Beneficiary with respect to BNP’s right to enforce certain provisions of this Development
Agreement, including but not limited to BNP’s right to participate on the AURA board of
directors with respect to any urban renewal plans for any portion of the Property.
U. As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-203 and 29-20-105, and
such Parties intend their respective obligations hereunder to be enforceable by specific
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.
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:
6
1044033.48
ARTICLE 1
GENERAL PROVISIONS
1.1 Incorporation of Recitals. The Recitals are incorporated into and made
substantive provisions of this Development Agreement.
1.2 Effectiveness and Recording of Development Agreement. This Development
Agreement shall be effective as of the Effective Date. Any delay or failure to Record this
Development Agreement shall not negate or impair the effectiveness of this Development
Agreement as between the Parties and any other parties having notice of this Development
Agreement. The effectiveness and/or Recording of this Development Agreement shall not be
construed to negate the effectiveness of any approvals granted by Town Council prior to the
Effective Date or any actions of Master Developer, EMD, the Districts, the PICs or any other
Landowner taken in connection with development of the Project prior to the Effective Date. All
such approvals and actions are hereby ratified by the Parties. As of the Effective Date, the
Settlement Term Sheet shall be construed to be of no further force or effect, its terms and
conditions having been incorporated into and implemented by this Development Agreement, the
PUD Guide, the Tank Agreement, the 2013 Reissue Documents 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;
7
1044033.48
(ii) any common-law vested rights obtained prior to such termination;
(iii) any right arising from Town building permits, development
approvals or other zoning entitlements for the Property or the Project which were granted
or approved prior to expiration of the Vesting Term; or,
(iv) any obligation of a Party under this Development Agreement that
has not been fully performed as of the date on which the Vesting Term expires.
(b) Term of Development Agreement. Notwithstanding any prior expiration
of the Vesting Term (or survival of the Vesting Term after expiration of the Term), the term of
this Development Agreement and the Parties’ obligations hereunder shall commence upon the
Effective Date and shall terminate upon expiration of the Term. Upon expiration of the Term,
the Town is entitled under the terms of this Development Agreement to terminate the Tax Credit.
Notwithstanding the foregoing, the Town may elect to extend the Term in accordance with
Section 6.1(d). In no event shall the Term expire before the Town’s obligation to maintain the
Tax Credit in effect has terminated as provided in Section 6.1(b).
(c) Obligation to Maintain Tax Credit. Without limitation of the foregoing,
the Town’s obligation to maintain the Tax Credit in effect pursuant to Sections 4.2(a) and 6.1(b)
shall survive expiration of the Vesting Term and shall continue in full force and effect until the
conditions set forth in Section 6.1(b) have been fully satisfied.
1.5 Amendment of Development Agreement. This Development Agreement may be
amended or terminated only by mutual written consent of the Town, TCMD and Master
Developer (but not by their respective successors or assigns or by any non-Party Landowner)
following the public notice and public hearing procedures required for approval of this
Development Agreement; provided, however:
(a) Specific Grant of Amendment Rights. For purposes of this Section 1.5
only, the term “Master Developer” means TCLLC, EMD and those additional parties, if any, to
whom TCLLC or EMD has specifically granted, in writing, the power to enter into such
amendments. No entity to whom TCLLC or EMD has granted the power to enter into such
amendments may further assign or grant such power to another entity except to the extent
expressly stated in the grantee’s original grant from TCLLC or EMD.
(b) Limited Parties. The written consent of a Limited Party (other than EMD
in its capacity as Master Developer, as otherwise set forth in this Section 1.5) shall not be
required except to the extent the proposed amendment directly and expressly modifies a
provision of this Development Agreement that establishes a right, obligation or remedy of such
Limited Party.
(c) VMD. During any portion of the 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
8
1044033.48
with respect to amendments to this Development Agreement that are not expressly within the
scope of the preceding sentence.
(d) BNP. The Parties acknowledge that until such time as there are no
outstanding obligations to BNP under the 2013 Reissue Documents, TCMD and/or VMD’s
agreement to any future amendment to the provisions of this Development Agreement that run in
favor of BNP, including without limitation, this Section 1.5(d), Section 1.6, Article 4, Article 6
and Article 7 is subject to BNP Paribas’ (or any successor or assignee of BNP Paribas pursuant
to Section 8.11) prior written consent. The Parties further acknowledge that until such time as
there are no outstanding obligations to BNP under the 2013 Reissue Documents, TCMD and
VMD are (or are anticipated to be) required by the provisions of the 2013 Reissue Documents to
obtain the consent of BNP (or a written acknowledgement that such consent is not required) to
any future amendment to the provisions of this Development Agreement, and failure on the part
of TCMD and VMD to obtain such consent prior to entering into any such amendment will be a
default under the 2013 Reissue Documents, as to which BNP will have the right to exercise its
remedies.
1.6 Cooperation in Defending Legal Challenges. If, after the Execution Date, any
legal or equitable action or other proceeding is commenced by a third party challenging the
effectiveness of Ordinance No. 12-10, the effectiveness of this Development Agreement and/or
the Development Plan, or the validity of any provision of this Development Agreement and/or
the Development Plan, the Parties shall in good faith cooperate in defending such action or
proceeding and shall each bear their own expenses in connection therewith. Unless the Parties
otherwise agree, each Party shall select and pay its own legal counsel to represent it in
connection with such action or proceeding. The Parties acknowledge that the obligations of the
Town , VMD and TCMD pursuant to this Section 1.6 are subject to compliance with the
requirements of Section 20 of Article X of the Colorado Constitution. Accordingly, the Town,
VMD and TCMD shall in good faith take such steps as may be available to 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.
9
1044033.48
1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries.
(a) Limited Parties. As more particularly described in Recital R, each
Limited Party is executing this Development Agreement solely with respect to a limited
obligation of such Limited Party. With respect to each Limited Party, such obligations, rights
and remedies are expressly limited as follows:
(i) AURA. AURA’s obligations arising under this Development
Agreement are limited to those set forth in Section 4.3. AURA’s rights and remedies
arising under this Development Agreement are as set forth in Section 7.7(c)(i).
(ii) EMD. EMD’s obligations arising under this Development
Agreement are limited to those set forth in Section 5.4. EMD’s rights and remedies
arising under this Development Agreement are as set forth in Section 7.7(c)(ii).
(iii) The Commercial PIC. The Commercial PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Commercial PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iii).
(iv) The Mixed Use PIC. The Mixed-Use PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section 5.2. The
Mixed-Use PIC’s rights and remedies arising under this Development Agreement are as
set forth in Section 7.7(c)(iv).
(b) Intended Beneficiaries. Except to the extent an Intended Beneficiary
undertakes obligations as an Applicant in connection with the development of a Site and/or
execution of a Public Improvement Agreement as provided in this Development Agreement, no
Intended Beneficiary is subject to any obligation arising solely under this Development
Agreement. Except with respect to the rights and remedies of such Intended Beneficiaries as set
forth in Section 7.7(d), no Intended Beneficiary has acquired any enforcement right or remedy
arising solely under this Development Agreement. Notwithstanding the foregoing, TC-RP shall
have the obligationobligations 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
10
1044033.48
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 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
11
1044033.48
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
12
1044033.48
have any liability to the Town or any other party arising under this Development Agreement for
not developing all or any portion of any such phase of the Project.
(b) Districts. The Districts’ Service Plans establish the scope of the Districts’
authorized activities and shall not be construed to constitute an obligation of the Districts to
cause the development of any particular Public Improvements, or to provide any particular
services or to perform any other function for which the Districts have authorization, nor shall
such Service Plans be construed to create any obligation of Master Developer or any Landowner
to provide any Public Improvements, any services or to otherwise pay any monies or perform
any actions on behalf of or for the benefit of the Districts. No District shall have any obligation
arising under this Development Agreement to develop all or any portion of the Public
Improvements, nor shall any District have any liability to the Town or any other party arising
under this Development Agreement for not developing all or any part of the Public
Improvements. The Parties contemplate that the Project will be developed in phases as generally
driven by market conditions as they exist from time to time. No District shall have any
obligation arising under this Development Agreement to develop all or any portion of the Public
Improvements pertinent to any such phase, notwithstanding the development or
non-development of any Public Improvements for any other phase, and no District shall have any
liability to the Town or any other party arising under this Development Agreement for not
developing all or any portion of the Public Improvements pertinent to any such phase of the
Project. The foregoing shall not be construed to relieve any District of any obligation established
pursuant to the terms and conditions of a Public Improvements Agreement that is executed by a
District as contemplated in Section 3.2(a).
(c) Construction and Interpretation. For purposes of this Section 2.5
references to Master Developer, Landowners and the Districts shall be construed to include their
respective employees, agents, members, officers, directors, shareholders, consultants, advisors,
successors, assigns and similar individuals or entities.
2.6 Compliance with General Regulations. Except as otherwise provided in
the Development Plan, the establishment of Vested Property Rights under this Development
Agreement shall not preclude the application on a uniform and non-discriminatory basis of Town
ordinances and regulations of general applicability (including, but not limited to, building, fire,
plumbing, electrical and mechanical codes, the Municipal Code (as in effect on the Original
Effective Date or as amended from time to time), and other Town rules and regulations) or the
application of state or federal regulations, as all of such regulations existed on the Original
Effective Date or may be enacted or amended after the Effective Date; provided, however, that
Town ordinances and regulations newly enacted or amended after the Original Effective Date
shall not directly or indirectly have the effect of adversely altering, impairing, preventing,
diminishing, imposing a moratorium on development, delaying or otherwise adversely affecting
any Landowner ’s Vested Property Rights. No Landowner shall be deemed to have waived its
right to oppose the enactment or amendment of any such ordinances and regulations.
13
1044033.48
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 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
14
1044033.48
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).
(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:
15
1044033.48
(i) Existing Public Roads. Contemporaneously with the Effective
Date, TCMD conveyed to the Town all of TCMD’s right, title and interest in and to the
existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder
Avenue), together with the road improvements, streetscape improvements, landscape
improvements and drainage improvements located within such rights-of-way. The Town
granted Final Acceptance of all such roadways and related improvements for
maintenance without reservation or condition, whether related to warranty periods or
otherwise, and released all warranty collateral related thereto.
(ii) Main Street. As of the Execution Date, the temporary alignment
and road surface of East Beaver Creek Boulevard within Lot 1 (re-designated in the PUD
Guide as Main Street) is located within the easement established by the Easements with
Covenants and Restrictions Affecting Land, dated April 24, 2002, and Recorded May 8,
2002, at Reception No. 795009, and shall not be Dedicated to the Town until such time as
each pertinent phase of the final alignment thereof is completed as more specifically set
forth in the PUD Guide. Dedication of each phase of the 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
16
1044033.48
point of demarcation will be established at the timing of final subdivision plat. The Town
shall have no maintenance or snow removal responsibility for the portion of such road
that is private.
(iv) Sidewalk Snow Removal. The Town’s obligation pursuant to this
Development Agreement to remove snow from sidewalks shall be limited to Post
Boulevard, Main Street (in both the interim East Beaver Creek Boulevard alignment
existing as of the Execution Date and the future final Main Street alignment), Swift
Gulch Road, Fawcett Road and Yoder Avenue. Maintenance of other sidewalks along
public roads shall be in accordance with generally applicable standards set forth the
Municipal Code (as amended from time to time) and applied uniformly throughout the
Town.
(c) Phased Road Improvements.
(i) Generally. All roads, including Main Street and East Beaver
Creek Boulevard (as such roads are identified on the PUD Master Plan), may be
developed in phases in accordance with the road standards set forth in Exhibit F of the
PUD Guide and as warranted based on the applicable traffic study.
(ii) Main Street. Without limiting the generality of the foregoing,
construction of the final 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,
17
1044033.48
completion of the final through connection alignment of East Beaver Creek Boulevard
would not be required).
(d) Dry Utilities. In connection with the Dedication of any public road
rights-of-way (whether by special warranty deed or by final plat), including those rights-of-way
Dedicated pursuant to Section 3.3(b)(i) and subject to such reserved rights, Master Developer or
the pertinent Landowner shall have the right to reserve the exclusive right to install, own,
operate, maintain, repair, replace and control access to all “Dry Utilities” (as defined in the PUD
Guide) located or to be located within Dedicated public road rights-of-way; provided, however,
that such activities shall be coordinated with the Town and all such Dry Utilities shall be located
in such a manner as to comply with Town requirements regarding separation from public utilities
located or to be located within such rights-of-way.
3.4 Municipal Water; Water Rights Dedications. Certain water rights have been
conveyed to, or otherwise acquired by, the Authority to be used in connection with the
development of the Project and to serve uses within the Project, including some of the water
rights and historic consumptive use credits decreed in Case No. 97CW306, a prior payment to
the Authority equivalent to 200 shares in the Eagle Park Reservoir Company and contract rights
to water supplied by the Colorado River Water Conservation District (together with additional
water rights, if any, Dedicated to the Town or to the Authority for such purposes after the
Effective Date pursuant to Section 3.4(c), the “Water Rights”). Pursuant to and as more
particularly described in the Tank Agreement: (i) as of the Effective Date, TCMD has conveyed
to the Town, and the Town has thereafter conveyed to the Authority, certain interests in the
Water Rights; (ii) the Water Rights conveyed to the Authority as of the Effective Date are
deemed sufficient to provide potable water service up to a maximum of 106.3 acre-feet of
consumptive use per year in accordance with depletion factors decreed in Case No. 97CW306;
and (iii) as of the Effective Date, the Authority is legally obligated to issue taps and to provide
the number of single family equivalents (SFE) of potable water service to the Project that is
equivalent to 106.3 acre-feet of consumptive use per year, as more fully set forth in the
augmentation plan approved in Case No. 97CW306. The amount of consumptive use
attributable to potable water service pursuant to the depletion factors and other assumptions set
forth in the plan for augmentation decreed in Case No. 97CW306 is calculated as 180.6 acre-feet
per year less 74.3 acre-feet per year reserved by the Town for raw water irrigation and lake
evaporation purposes [180.6 – 74.3 = 106.3]. The 106.3 acre-feet of consumptive use is referred
to for purposes of this Section 3.4 as the “potable water allocation” and the 74.3 acre-feet of
consumptive use is referred to herein as the “raw (non-potable) water allocation.” Additionally,
the Tank Agreement provides that the Town has certain obligations with respect to providing
municipal water service to the Project under circumstances where the Authority fails to provide
such services due to dissolution or otherwise.
(a) Water Bank. Master Developer and the Town shall establish and jointly
maintain a cumulative written record (the “Water Bank”) that documents: (i) the total Water
Rights, stated as the total “potable water allocation” and the total “raw (non-potable) water
allocation;” (ii) the specific portion of the “potable water allocation” that is assigned to particular
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
18
1044033.48
Agreement and the Tank Agreement) and (iv) the “potable water allocation” and the “raw
(non-potable) water allocation” remaining available to be assigned for use within the Property.
In connection with each final subdivision plat for a Site (whether processed administratively or
formally) or building permit (if no water allocation, or insufficient water allocation, has
previously been assigned to such Site), and subject to Subsection 3.4(c), Master Developer shall
designate the portion of the “potable water allocation” and the “raw (non-potable) water
allocation” that is assigned for development of the Site, and concurrently with approval of the
pertinent final subdivision plat (or issuance of the pertinent building permit(s)) the Water Bank
shall be updated to reflect such allocation and to reflect the corresponding reduction in the
“potable water allocation” and the “raw (non-potable) water allocation” remaining available for
use within the Property. Lot 1 as it is configured on the Effective Date shall be exempt from the
foregoing requirement, but parcels within Lot 1 that are created by further subdivision of Lot 1
for purposes of development shall be subject to the foregoing requirement. The amount of
consumptive use required to service development shall be based on the estimated demand,
depletion factors and other assumptions set forth in the plan for augmentation decreed in Case
No. 97CW306.
(b) Return of Water Rights to Water Bank. If the amount of the “potable
water allocation” and the “raw (non-potable) water allocation” assigned for any particular Site
exceeds the amount of the “potable water allocation” and the “raw (non-potable) water
allocation” actually required to serve the Site based upon actual development and final build-out
thereof (such actual “potable water allocation” and “raw (non-potable) water allocation” demand
to be determined in accordance with generally applicable requirements of the Authority and in
accordance with the depletion factors decreed in Case No. 97CW306), the excess and unused
portion of such water allocation shall be returned to the Water Bank and the Water Bank shall be
revised to reflect that such excess and unused portion of such water allocation is available for
assignment and is no longer assigned to the original Site. Excess and unused water allocation
amounts returned to the Water Bank shall be available for allocation in accordance with
Section 3.4(a) as though such water allocation amounts had not previously been allocated from
the Water Bank to serve a particular Site. The determination of excess portion of any water
allocation shall be determined by the Town and subject to the approval of the Authority, pursuant
to their respective generally applicable requirements, and shall be based on consumptive use of
the final build-out of any Site in accordance with the depletion factors and other provisions of the
decree in Case No. 97CW306. The Town may require water usage restrictions or maintenance
requirements to prevent any future increase of consumptive water use above the amount
determined necessary to serve the final build-out of any Site.
(c) Additional Water Rights.
(i) For the Property. Full build out of the Project as contemplated by
the Development Plan may require in excess of 180.6 acre-feet of consumptive use. If
the aggregate total Water Rights is insufficient to support full development of the Project
in accordance with the decree in Case No. 97CW306 and the PUD Guide, and all
available water allocations under the Water Rights have been assigned to Sites (whether
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:
19
1044033.48
(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.
20
1044033.48
(e) Additional Water Tanks. If TCMD, VMD, any Applicant or any other
party undertakes to construct one or more water storage tanks at an elevation higher than the
water storage tank to be constructed pursuant to the Tank Agreement, and notwithstanding any
contrary provision of the Municipal Code (as in effect from time to time), the Town shall not
require the Applicant to seek a 1041 permit and shall not require the tank site to be a legally
subdivided parcel (provided the owner of the water storage tank has an easement for the
operation and maintenance thereof, and further provided that the Town may require the tank site
easement area to be platted at such time as the pertinent lot(s) or tract(s) within Planning Area K
are platted). If construction of any such water storage tank is undertaken independent and in
advance of development of the portion of the property to be served by the water storage tank, the
Town shall not require execution of a Public Improvement Agreement or monetary collateral
(cash escrow, letter of credit or similar mechanism) for assurance of completion of the water
storage tank; provided, however, that the Town may require a bond for the purpose of ensuring
erosion control, mitigation of safety hazards, fencing and other matters related to properly
securing the site if construction is discontinued indefinitely prior to completion. If construction
of any such water storage tank is undertaken as a condition of approval of a Development
Application for development of a Site with respect to which service will be required to be
provided from the to be constructed water storage tank, the Town may require construction of the
water storage tank and assurance of completion thereof pursuant to the terms and conditions of a
Public Improvement Agreement as otherwise provided in this Development Agreement. The
Town shall have no obligation to issue a temporary or final certificate of occupancy for a
habitable structure within any Site with respect to which water service cannot be provided
without such water storage tank becoming operational until such time as the pertinent water
storage tank becomes operational. The foregoing shall not preclude the Town from issuing a
building permit prior to completion of such a water storage tank if the Town determines such
action to be consistent with public health, safety and welfare under circumstances then pertaining
(for example, the water storage tank is reasonably anticipated to be operational prior to
completion of the improvements for which the building 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.
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, to TCMD or to
TCMDVMD, 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
21
1044033.48
subject to annual appropriation to the extent required by Section 20 of Article X of the Colorado
Constitution. Alternatively, the Town may direct that all such users remit water tap fees directly
to TCMD and or VMD in accordance with clauses (A) and (B) above. The Town expressly
disclaims any right, title or interest in or to any water tap fees payable in connection with
development within the Property, and acknowledges that all such water tap fees constitute
District Revenues, are the property of, and shall be due and payable to TCMD and/or VMD in
accordance with clauses (A) and (B) above.
3.5 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary
sewer service to the Project. The topography of Planning Area K, the size of the lots contained
in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and
from the facilities of the Sanitation District, together with the comparative ease of servicing
Planning Area K with individual septic tank and leach field systems, render all or designated
areas within Planning Area K appropriate for exclusion from the Sanitation District.
Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all
or any part of Planning Area K, whether initiated by Master Developer or the Developer of such
portion of Planning Area K.
3.6 Drainage Plans; Stormwater Management. Drainage plans and stormwater
management plans required in connection with the processing of any Development Application
shall be in accordance with the 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 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:
22
1044033.48
(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 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
23
1044033.48
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
24
1044033.48
shall be for nominal consideration; and (ii) such lease or conveyance shall be
expressly subject to the use restriction established pursuant to Section 3.7(a)(ii)
and the applicable deed restriction as contemplated by Section 3.7(a)(iii).
(b) Dedication of Planning Area B. Concurrently with the Effective Date,
TC-RP has conveyed to the Town the approximately 4.1 acre Site designated on the PUD Master
Plan as Planning Area B (i.e., Lot 2, The Second Amended Final Plat, Amended Final Plat, The
Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on the Effective Date)).
Neither TC-RP, Master Developer, TCMD, VMD nor any Landowner (other than the Town) shall
have any obligation with respect to provision of any Public Improvements or other on-site or off-
site improvements for Planning Area B, all such obligations being the sole responsibility of the
Town and not of AURA. Accordingly, the Town hereby grants Final Acceptance with respect to
Dedication of Planning Area B. Any construction of buildings or facilities or landscaping
improvements on Planning Area B, or any Public Improvements required in connection with the
Town ’s development of Planning Area B, shall be subject to prior approval by the Design
Review Board. The Town may create a plan for the development and use of Planning Area B,
which may be adopted by the Design Review Board, and which shall then serve as a guide for
review of uses and development of Planning Area B by the Design Review Board. Any use or
plan for use of Planning Area B shall allow and incorporate the ability to construct for storage
and/or augmentation purposes a water feature which can provide at least 2 acre feet of water
storage (which shall not exceed a total surface area of 0.6 acres, including inflow and outflow on
Planning Area B). Notwithstanding the preceding sentence, the Town shall have the right to
maintain and operate as public open space all or a portion of Planning Area B which is not yet
developed in accordance with this Section. Pursuant to the PUD Guide, the Town shall
administratively process and approve subdivision re-platting of Planning Area B to adjust the
boundary of Planning Area B in connection with final development of an adjacent Planning Area.
The Town shall not unreasonably deny, condition or delay final action with respect to a
Development Application to administratively re-plat Planning Areas B as provided herein. Until
such time as Planning Area B is developed or improvements are constructed thereupon that
preclude use of Planning Area B for snow storage, the Town and Master Developer (or its
assignee(s)) shall have the right to use Planning Area B for snow storage in accordance with the
terms of the Revocable License Agreement.
(c) Planning Areas OS-5 and OS-6. EMD (or the Landowner at the pertinent
time) shall convey Planning Areas OS-5 and OS-6 to the Town concurrently with Recording of
the initial final subdivision plat for Planning Area I. Neither EMD (or the then-Landowner),
Master Developer, VMD nor TCMD shall have any obligation with respect to provision of any
Public Improvements for Planning Areas OS-5 and OS-6. Accordingly, the Town shall grant
Final Acceptance with respect to Dedication of Planning Areas OS-5 and OS-6 concurrently with
Recording of the conveyance documents and no Preliminary Acceptance or warranty period
requirement shall apply. Such conveyance shall be by special warranty deed in the 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
25
1044033.48
(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 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).
26
1044033.48
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.
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
27
1044033.48
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. The “capitalized” principal amount of any
Deferred Reimbursement the repayment of which is being made as an Additional Developer
Advance pursuant to Section 5.5(b)(iv)(A) shall be counted as reserved Supplemental Bond
capacity that has been utilized to fund Capital Project Costs incurred in connection with
construction of the Prioritized Capital Improvements (i.e., shall count against the $17,500,000
total). The “capitalized” principal amount of any Deferred Reimbursement the repayment of
which is being made as a Non-Credit PIF Revenue Reimbursement pursuant to
Section 5.5(b)(iv)(B) shall not be counted as reserved Supplemental Bond capacity that has been
utilized to fund Capital Project Costs incurred in connection with construction of the Prioritized
Capital Improvements (i.e., shall not count against the $17,500,000 total). If any amount that is
initially payable as an Additional Developer Advance is subsequently made payable as a
Non-Credit PIF Revenue Reimbursement pursuant to Section 5.5(b)(iv)(B), an equivalent
amount shall added back to the $17,500,000 reserve requirement to be utilized for other Capital
Project Costs.
(c) Balance of Supplemental Bond Capacity. The Districts may utilize the
balance of the Supplemental Bond Capacity available under the Credit PIF Cap (after reservation
and utilization of the funding capacity as described in clauses (a) and (b) above) to fund other
Cap Amounts, with the prioritization of the Capital Projects so funded 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. (and any applicable
agreement regarding such assignment).
28
1044033.48
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 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
29
1044033.48
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 regarding the
nature and purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may
request from time to time.
(c) Assumption of TCMD Maintenance Obligations. From and after the
Effective Date, the Town shall assume and be responsible for the performance of all of TCMD’s
and VMD’s current and future maintenance, repair and replacement obligations with respect to
Public Improvements (including but not limited to all Dedicated and Accepted public road
right-of-way landscaping, Nottingham Dam, Nottingham-Puder Ditch, irrigation systems and
water wells, the wet well located within PA-F, tree replacements and, subject to
Section 3.3(b)(iv), snow removal). The Town shall have sole discretion to determine the
appropriate maintenance of Nottingham Dam, which shall include but is not limited to
maintenance, repair, replacement, improvement, expansion, decommission, removal and deferral
of any activity. Notwithstanding the forgoing, TCMD and/or VMD shall retain responsibility to
cause the following obligations to be performed utilizing District Revenues available to them for
such purposes:
(i) Parking Structures. Maintenance of the existing Traer Creek Plaza
public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1,
Recorded on May 8, 2002, at Reception No. 795007 (identified as “Unit 1” or the
30
1044033.48
“Parking Unit” in the Condo Plat Map Recorded on the Effective Date) and, except to the
extent the Town, TCMD and/or VMD otherwise agree in writing, any additional public
parking facilities or structures that TCMD, VMD or another District may construct in the
future.
(ii) Lot 2 Internal Landscaping. Any landscaping maintenance
obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on
May 8, 2002, at Reception No. 795007 to the extent arising from a District’s status as
owner of the Traer Creek Plaza public parking structure located therein (identified as
“Unit 1” or the “Parking Unit” in the Condo Plat Map Recorded on the Effective Date).
(iii) Tract E. Maintenance of the park and flag pole located within
Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at
Reception No. 795007.
(d) Asphalt Overlays. Subject to the terms and conditions of the Asphalt
Overlay Agreement and Section 6.6, the Town shall perform asphalt overlays for all Dedicated
public roads located in the Project subject to the following terms and conditions:
(i) Prior to Termination of Joint Funding. Until the shared funding
contributions terminate pursuant to Section 6.6(b):
(A) The Town shall commence overlays on Dedicated roads
within the Project at such time as jointly determined necessary by the Town and
TCMD.
(B) As more particularly set forth in the Asphalt Overlay
Agreement (including but not limited to Section 5(b) thereof regarding deemed
consent under certain facts), TCMD and the Town each must provide written
approval prior to the release of any funds from the Asphalt Overlay Account.
(C) The Town ’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay Account.
(D) The Town’s obligation to deposit funds into the Asphalt
Overlay Account shall be limited to the portion of the Municipal Payments the
Add-On RSF Collection Agent deposits on behalf of the Town pursuant to
Section 5.2(c), and the Town shall have no obligation to contribute funds from
any other source.
(ii) After Termination of Joint Funding. From and after the date upon
which the shared funding contributions terminate pursuant to Section 6.6(b):
(A) The Town shall be solely responsible for all costs of asphalt
overlays for Dedicated public roads in the Project.
(B) The Town shall schedule and perform such asphalt overlays
in a manner materially consistent and commensurate with other public roads in
31
1044033.48
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 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.
32
1044033.48
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.
ARTICLE 5
OBLIGATIONS OF DISTRICTS, PICS, MASTER DEVELOPER, EMD AND DEVELOPER
AFFILIATES
5.1 Obligations of TCMD and/or VMD. Without limiting or negating any TCMD or
VMD obligation set forth in another Article of this Development Agreement, TCMD and/or
VMD, as applicable, shall perform the following obligations:
(a) Asphalt Overlay. TCMD and/or VMD (as determined by the 2013
Reissue Documents during the 2013 Bond Repayment Period) shall perform the funding
obligation with respect to the Asphalt Overlay Account in accordance with the terms and
conditions of Section 6.6(a)(iii).
(b) Notice of Financings. TCMD and VMD shall give to the Town forty-five
(45) days’ prior written notice of their respective intent to finance and/or construct any Capital
Projects utilizing Supplemental Bonds.
(c) Add-On RSF. TCMD and VMD shall cooperate with the PICs to the
extent reasonably necessary and appropriate in the imposition and administration of the Add-On
RSF. TCMD and VMD will cooperate with the PICs to effect the implementation of the Add-On
RSF with respect to existing and future retail businesses within the Project, including but not
limited to: (i) assisting in the coordination and implementation of reporting forms;
(ii) participating in meetings with representatives of such retailers regarding the nature and
purpose of the Add-On RSF; and (iii) such other steps and actions as the PICs may request from
time to time. During the Term and provided the Town is performing its obligation to maintain
the Tax Credit in effect, neither TCMD nor VMD shall take any action to modify, reduce,
terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales
transactions occurring within the Project.
(d) Utilization of Credit PIF Revenues. During the Term, TCMD and VMD
shall utilize Credit PIF Revenues only for the Permitted Uses as set forth in Section 6.2(a) and
shall apply Credit PIF Revenues in the priority set forth in Sections 6.9(b), 6.9(c) and 6.9(d).
5.2 Obligations of PICs.
(a) Credit PIF. During the 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.
33
1044033.48
(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.
(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
34
1044033.48
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.
(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) 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.
35
1044033.48
(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 ObligationObligations of TC-RP Regarding . TC-RP shall perform the following
obligations:
5.5(a) Add-On RSF. Concurrently with the Effective Date, TC-RP, in its
capacity as the “declarant” with respect to the PIF Covenants has caused to be recorded
amendments to the PIF Covenants to implement the Add-On RSF. During the Term and
provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP shall
take all legally available action to cause the PICs to impose, collect and remit the Add-On PIF as
required pursuant to this Development Agreement, and TC-RP shall not take any action to
modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to
applicable retail sales transactions occurring within the Project.
(b) Tank Project Financing. TC-RP shall provide financing for the
construction and completion of the Tank Project (together with any refinancing thereof, “Tank
Project Financing”) according to the following terms:
(i) Funding of Tank Project Financing. TC-RP shall provide
sufficient funds for completion of the Tank Project as and when required pursuant to and
otherwise in accordance with the terms and conditions of the Tank Agreement.
(ii) Reimbursement From Annual Debt Service Obligation. In
accordance with the terms and conditions of the Pledge Agreement, the Districts shall
utilize the Annual Debt Service Obligation (in the amount of $500,000 per year for a
period of thirty (30) years commencing on, or promptly thereafter as may otherwise be
set forth in the Pledge Agreement, the date the Authority permanently rescinds the
moratorium on issuance of water taps pursuant to the terms and conditions of the Tank
Agreement, such date to be coincident with the date on which the Authority grants
“construction acceptance” of that portion of the Tank Project that is required to be
Dedicated to and accepted by the Authority) to reimburse TC-RP (and, for purposes of
such reimbursement, its successors and/or assigns) for: (A) the principal amount of
$7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS), which
amount shall be payable from Credit PIF Revenues pursuant to Section 6.2(b)(ii) and
shall constitute Capital Project Costs that are Net Proceeds and Cap Amounts; and
(B) interest at the rate of 5.673% per annum, which interest shall be payable from Credit
PIF Revenues pursuant to Section 6.2(c)(i) (to the extent not paid from VMD property
36
1044033.48
tax revenues as provided in the Pledge Agreement) and shall constitute Bond
Requirements and Non-Cap Amounts. Such obligations shall be paid in accordance with
the priority set forth in Section 6.9(b)(i). TC-RP assumes the risk that the principal
amount of the Capital Project Costs it actually incurs to complete the Tank Project may
exceed $7,200,000, and TCMD shall have no obligation to reimburse TC-RP for any
Capital Project Costs incurred by TC-RP that exceed $7,200,000. Subject to
Section 5.5(b)(iv), the foregoing principal amount and interest rate will accomplish full
amortization of the obligation utilizing the Annual Debt Service Obligation over the
thirty (30) year period of the Annual Debt Service Obligation. The Pledge Agreement
shall provide “call protection” such that the Tank Project Financing obligation may not
be refinanced or otherwise pre-paid utilizing Annual Debt Service Obligation (as
described above) funds without TC-RP’s written consent, to be granted or withheld in
TC-RP’s sole and unilateral discretion; provided, however, that the foregoing “call
protection” shall not apply if the refinancing/pre-payment also will also refinance/prepay
any sums of principal and interest then owed and unpaid to TC-RP that are categorized as
Deferred Reimbursements pursuant to Section 5.5(b)(iv).
(iii) Deferred Reimbursement. In each calendar year during which
payments are due and owing from the Annual Debt Service Obligation, a difference will
exist (such difference being a “Deferred Reimbursement”) between the amount of the
debt service payment (principal and interest) paid each calendar year from the Annual
Debt Service Obligation (at the rate of 5.673% per annum as fixed pursuant to
Section 5.5(b)(ii)) and the amount of debt service payment (principal and interest) that
would otherwise would have been paid in such calendar year had the interest rate been
the rate applicable to Additional Developer Advances. For purposes of the foregoing, the
following calculations shall be made for each calendar year on December 31 of such
calendar year: (I) the interest rate then applicable to Additional Developer Advances in
accordance with Paragraph 6 of Exhibit F; (II) the amount of debt service payment
(principal and interest) that would have been made in such calendar year using the
interest rate resulting from use of the rate described in the foregoing clause (I); (III) the
amount of debt service payment (principal and interest) that was actually made in such
calendar year pursuant to Section 5.5(b)(ii) at the rate of 5.673%; and (IV) the difference
between the debt service payments (principal and interest) resulting under the foregoing
clauses (II) and (III) (provided, however, that such shall calculation shall not result in a
negative adjustment). Such Deferred Reimbursements shall be “capitalized” as a
principal obligation and paid, together with accrued interest, in accordance with
Section 5.5(b)(iv).
(iv) Repayment of Deferred Reimbursement. The Pledge Agreement
shall provide that payment of the “capitalized” principal amount of each Deferred
Reimbursement, and payment of accrued interest on each such Deferred Reimbursement,
shall be deferred (and paid with funds other than the Annual Debt Service Obligation)
until such time as TCMD (or its successors and/or assigns) has available funds to make
such payments in accordance with the prioritization set forth in Section 6.9 and otherwise
subject to the following terms and conditions:
37
1044033.48
(A) Additional Developer Advance. Subject to
Section 5.5(b)(iv)(B), the “capitalized” principal amount of all such Deferred
Reimbursement amounts shall initially constitute an Additional Developer
Advance. The “capitalized” principal amount of such Additional Developer
Advances shall be payable from Credit PIF Revenues, shall constitute Net
Proceeds that are a Cap Amount that counts against the Credit PIF Cap pursuant
to Section 6.2(b)(iv), and shall be paid in accordance with the priority set forth in
Section 6.9(b)(v)(B)1.
(B) Non-Credit PIF Revenue Reimbursement. Amounts
(whether “capitalized” principal or interest) payable as a Non-Credit PIF Revenue
Reimbursement shall not be payable from Credit PIF Revenues, shall not count
against the Credit PIF Cap, and shall be paid in accordance with the priority set
forth in Section 6.9(c) Additionally:
1. Conversion to Non-Credit PIF Revenue
Reimbursement. TC-RP shall have the right in its sole discretion to
convert any Deferred Reimbursement “capitalized” principal amount that
is initially characterized as an Additional Developer Advance pursuant to
Section 5.5(b)(iv)(A) to a Non-Credit PIF Revenue Reimbursement. If
any “capitalized” principal amount that is initially payable as an
Additional Developer Advance (pursuant to Section 5.5(b)(iv)(A)) is
subsequently converted to a Non-Credit PIF Revenue Reimbursement
(pursuant to this Section 5.5(b)(iv)(B)), an amount equal to such
“capitalized” principal amount shall added back to the unused portion of
the Credit PIF Cap to be utilized for other Capital Project Costs. Once
converted to a Non-Credit PIF Revenue Reimbursement, the obligation
shall remain a Non-Credit PIF Revenue Reimbursement.
2. Interest on Deferred Reimbursement Amounts.
Non-Credit PIF Revenue Reimbursements shall accrue interest at a rate
and on such additional terms as TC-RP and TCMD agree.
ARTICLE 6
FINANCING PLAN
6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD
and/or VMD to finance and construct Capital Projects, to repay the District Debts and to be
utilized for other Permitted Uses. The Tax Credit is granted in consideration of the above-stated
uses of the Credit PIF.
(a) Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit
PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs
have assigned the Credit PIF Revenues to TCMD and/or VMD, and will further assign and/or
re-assign to the Districts portions of the Credit PIF Revenues, to enable each of the Districts to
utilize their respective portions of the Credit PIF Revenues for the purpose of performing their
respective obligations pursuant to the Financing Plan and this Development Agreement.
38
1044033.48
(b) Expiration of Term; Termination of Town Tax Credit. Except as
otherwise provided in Section 6.1(d), the Districts’ right to receive Credit PIF Revenues, the
Town’s right to receive Municipal Payments, and the Town’s obligation to maintain the Tax
Credit in effect each shall terminate concurrently with expiration of the 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 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, the Districts may utilize Credit PIF
Revenues to pay the Cap Amounts and the Non-Cap Amounts (collectively, the “Permitted
Uses”) and for no other purpose.
39
1044033.48
(b) Credit PIF Cap; Cap Amounts. Subject to reduction by not more than
$10,000,000 (Ten Million Dollars) in accordance with Section 6.7 and as otherwise set forth
below with respect to unfunded Supplemental Bond capacity, the amount of the following
obligations to which Credit PIF Revenues can be pledged is $96,000,000 (NINETY SIX
MILLION DOLLARS) (the “Credit PIF Cap”). Only Net Proceeds shall be counted against the
Credit PIF Cap (as qualified in clause (i) below). If, as of January 2, 2040, the Net Proceeds of
all Supplemental Bonds issued on or before January 1, 2040, are less than the otherwise unused
portion of the Credit PIF Cap, the Credit PIF Cap will be reduced in equal amount to the unused
Credit PIF Cap. The following (collectively, the “Cap Amounts”) shall count against the Credit
PIF Cap:
(i) $52,100,000 (FIFTY TWO MILLION ONE HUNDRED
THOUSAND DOLLARS), which is the original amount of the TCMD bonds refunded
pursuant to the 2013 Bond Reissue.
(ii) The $7,200,000 (SEVEN MILLION TWO HUNDRED
THOUSAND DOLLARS), which is the Net Proceeds of the Tank Project
BondsFinancing in the approximate amount of $9,000,000 (the precise amount to be
established at the time the Water Tank Bonds are issued).accordance with
Section 5.5(b)(ii).
(iii) The Net Proceeds of the Past Developer Advances in the amount
stated in Exhibit E.
(iv) To the extent issued on or before January 1, 2040, : (A) the Net
Proceeds of Supplemental Bonds (including Master Developer contributions to the
Asphalt Overlay Account only to the extent reimbursable from Credit PIF Revenues).);
and (B) the “capitalized” principal amount of any Deferred Reimbursements that are an
Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) (any such
amounts that arise pursuant to clause (2) of Section 5.5(b)(iv) being expressly included
herein notwithstanding that such amounts may arise after January 1, 2040).
(v) Capital Project Costs that the Districts fund directly from Credit
PIF Revenues budgeted and appropriated for such purpose.
(c) Non-Cap Amounts. The following costs (collectively, the “Non-Cap
Amounts”) are payable from Credit PIF Revenues but do not count against the Credit PIF Cap:
(i) Payments of interest and other Bond Requirements incurred with
respect to Cap Amounts and any principal of bond obligations included as District Debts
which is in excess of the Cap Amounts.
(ii) Except as otherwise provided in Section 6.12, the principal amount
and Bond Requirements of any refunding bonds or other debt instruments issued to repay,
refund and/or defease, in whole or in part, the principal and Bond Requirements of the
obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b).
(iii) The Avon Receivable and any refunding thereof.
40
1044033.48
(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) Contributions by TCMD and/or VMD to the Asphalt Overlay
Account.
(vii) The Base O&M Costs.
6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as
contemplated in the Original Agreement, the PICs have imposed and shall continue for the
duration of the Term to impose the Credit PIF and collect the Credit PIF Revenues in accordance
with the terms and conditions of the PIF Covenants and applicable provisions of this
Development Agreement. Pursuant to the PIF Covenants and in implementation of the
Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to
impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms
and conditions of the PIF Covenants and applicable provisions of this Development Agreement.
(a) Town Real Estate Transfer Tax. In full settlement of any and all claims
that could be raised or asserted regarding whether the Town’s real estate transfer tax and the
PICs ’ Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart
occupy their present locations within the Project as of the Execution Date or to apply to any
extension(s) of such leases:
(i) Existing Wal-Mart and Home Depot Leases. The Town’s real
estate transfer tax shall not be construed to apply to the leases pursuant to which Home
Depot and Wal-Mart occupy their present locations within the Project as of the Execution
Date or to apply to the election of lessee to exercise its rights to extend such leases in
accordance with the terms of the respective original lease documents as in effect on the
Execution Date.
(ii) Waiver of Claims. Accordingly, the Town hereby fully and
irrevocably waives any and all claim or right to impose its real estate transfer tax, and the
Commercial PIC hereby fully and irrevocably waives any and all claim or right to impose
the Real Estate Transfer Fee, upon the existing leases (together with extensions and
options to extend thereunder) for Wal-Mart and Home Depot.
(iii) Applicability of Municipal Code. Contemporaneously with the
Execution Date, the Town has adopted Ordinance No. 12-11, pursuant to which it has,
effective on the Effective Date, amended Chapter 3.12 of the Municipal Code to clarify
various matters relating to the circumstances under which a long term lease constitutes a
Taxable Transaction for purposes of triggering an obligation to pay the Town’s real estate
transfer tax. During the Term, imposition and collection of the Real Estate Transfer Fee
shall be administered based Chapter 3.12 of the Municipal Code as amended by
Ordinance No. 12-11 (in the form and in substance as adopted contemporaneously with
the Execution Date) and in effect on the Effective Date. Transactions subject to the
Town’s real estate transfer tax shall be subject to the Real Estate Transfer Fee, and
41
1044033.48
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 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
TCMD (unless such revenues are subject to a pledge by VMD in connection with District
Debts issued or incurred by VMD pursuant to the Financing Plan, and in such case to
VMD). The Town’s obligation to remit such revenues 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. 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.
42
1044033.48
The Parties further recognize that national and state laws and business practices of retailers
regarding imposition of state and local sales tax are evolving and soon may require retailers to
identify and report the address of the point of purchase for internet based retail sales. The Town
agrees that if and when address 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
43
1044033.48
Tax Credit being applied to such transactions in order to offset the effect of the Credit
PIF in the same manner and to the same extent as the Tax Credit applies to retail sales
transactions, real estate transfer transactions and accommodations/lodging transactions.
Prior to adopting any such use tax, the Town shall coordinate with the PICs and other
Parties regarding the implementation of any such use taxes and application of the Tax
Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall
not be deemed to be part of such Taxable Transaction and shall not be subject to
application of the corresponding Town use tax.
(b) Add-On RSF Rate. As of the Effective Date, the PICs have set the
Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are
Taxable Transactions. The net proceeds (i.e., after payment of the fees to the Add-On RSF
Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of
any other adjustments to such revenues as set forth in this Development Agreement and/or the
Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from
imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions
shall constitute the Municipal Payments.
(i) Increase in Town Sales Tax Rate. If the Town increases the
Town’s retail sales tax rate above 4.0 % during any period for which Municipal Payments
are to be remitted to the Town, the portion of the Add-On RSF Revenues which will be
construed to be Municipal Payments shall be reduced in the same degree as any Town
sales tax rate increase above 4.0%. For example, if the Town increases its retail sales tax
rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSF Revenues construed
to be Municipal Payments shall be that amount equivalent to a reduction of 0.25% in the
Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather than the revenue
realized from a rate of 0.75%). As of the Effective Date, the PICs have not imposed an
Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF
required pursuant to this Section 6.4(b).
(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
44
1044033.48
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.
(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.
45
1044033.48
(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 overlays
of public roads located in the Project Dedicated to the Town as described in Section 4.2(d). The
46
1044033.48
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, $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), $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).
47
1044033.48
(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 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
48
1044033.48
Section 6.7(b) constitutes a limit on AURA’s ability to finance improvements it deems
appropriate. The restriction in this Section 6.7(b) relates only to whether bonds issued by AURA
to pay for the costs of such improvements count against the Credit PIF Cap.
(c) AURA Board Positions. Prior to or concurrently with the effective date of
any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an
urban renewal plan therefore, the Town and AURA shall take action to appoint an individual
designated by Master Developer and shall take action to appoint an individual designated by
BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA
board. The Master Developer and BNP board members shall be full members of the AURA
board with equal rights, duties and responsibilities as other AURA board members with respect
to all matters pertaining to any urban renewal area including Lot 1 (or a portion thereof), the
redevelopment plan or plans for any urban renewal area including Lot 1 (or a portion thereof)
and all AURA activities of any nature that directly or indirectly involve the establishment,
implementation and administration of any urban renewal area including or any urban renewal
plan affecting Lot 1 (or a portion thereof). The Master Developer and BNP shall comply with
statutory requirements regarding conflicts of interest. If the AURA board for activities affecting
Lot 1 is constituted as a separate board from that which operates within other areas of the Town,
such BNP and Master Developer board members shall be full members for all purposes having
equal standing with other board members. If the AURA board is not constituted as a separate
board from that with operates within other areas of the Town, the BNP and Master Developer
board members shall have no authority or standing to participate in AURA board activities
pertaining to areas of the Town other than Lot 1, and shall recuse themselves from all such
proceedings. BNP’s right to have a member on the AURA board shall expire and terminate at
such time as there are no outstanding obligations to BNP under the 2013 Reissue Documents.
(d) TCMD and VMD Taxes. The urban renewal plan for any urban renewal
area that includes Lot 1 (or any portion thereof), and all related governing and implementing
documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the
property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD
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
49
1044033.48
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) VMDTCMD is obligated to remit the Annual Debt Service Obligation to the
AuthorityTC-RP; and (ii) the AuthorityTC-RP is obligated to construct the Tank Project and to
utilize the Annual Debt Service Obligation revenues to pay debt service on the Tank Project
BondsFinancing. As of the Effective Date, BNP has provided the original letters of credit
securing payment of the 2013 Bond Reissue, consented to this Development Agreement and
consented to the Tank Agreement in reliance on the Town’s performance of its obligation to
maintain the Tax Credit in effect as required pursuant to this Development Agreement, and on
the remedies provided for herein for the Town’s breach of its obligation to maintain the Tax
Credit.
6.9 2013 Bond Reissue; Priority Use of District Revenues. In implementation of the
Settlement Term Sheet:
(a) 2013 Bond Reissue. Concurrently with the Effective Date and with the
consent of BNP and Master Developer, VMDTCMD has caused the 2013 Bond Reissue to be
50
1044033.48
effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in
reliance on the Town’s performance of its obligations pursuant to this Development Agreement
(specifically including but not limited to the Town’s obligation to maintain the Tax Credit in
effect during the Term), and on the remedies provided for herein for the Town’s breach of its
obligations under this Development Agreement (including but not limited to the right to obtain
an order requiring specific performance of the Town’s obligation to maintain the Tax Credit).
The 2013 Reissue Documents and the Pledge Agreement encumber and, consistent with the
Settlement Term Sheet, establish the terms and conditions governing utilization of District
Revenues during the 2013 Bond Repayment Period [confirm defined term].. Prior to the
Effective Date, the Town reviewed and approved the 2013 Reissue Documents and the Pledge
Agreement for consistency with this Development Agreement.
(b) Priority of Use of District Revenues. District Revenues (but excluding
from the scope of such defined term all Net Proceeds of Supplemental Bonds, whether derived
from Additional Developer Advances or from other forms of Supplemental Bonds) are to be
utilized to meet the following obligations in the following priority:
(i) Annual Debt Service Obligation. To the Authority,TC-RP for the
Annual Debt Service Obligation, from such sources, in the amounts and at such times
required by the Pledge Agreement.
(ii) Other Allowed O&M Expenses. Provided there is no continuing
default with respect to a District’s obligations pursuant to the 2013 Reissue Documents,
to TCMD in the amount of the Annual Base O&M Amount and to TCMD and/or VMD
(as determined by the 2013 Reissue Documents during the 2013 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) 2013 Bond Reissue. To the trustee or the custodian, as applicable,
for the 2013 Bond Reissue, to be used for principal repayment or reimbursement and
Bond Requirements related to the 2013 Bond Reissue as required by the 2013 Reissue
Documents, which may include, without limitation, establishment and, as necessary,
replenishment of a required reserve (in an initial amount of $3,000,000) and any
refunding bonds issued to repay or defease the 2013 Bond Reissue.
(iv) Deferred BNP Letter of Credit Fees and Deferred Amortization.
To the trustee or the custodian, as applicable, for the 2013 Bond Reissue, to be used to
pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization.
The prepayment or refinancing of the 2013 Bond Reissue shall require payment in full of,
or other extinguishment in full of the payment obligation with respect to, any such
Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be
applied in inverse order of maturity.
51
1044033.48
(v) Use of Excess Revenues.
(A) Prepayment of 2013 Bond Reissue. In any year in which
any District Revenues (but excluding from the scope of such defined term all Net
Proceeds of Supplemental Bonds, whether derived from Additional Developer
Advances or from other forms of Supplemental Bonds) remain after the payment
of the items set forth in subsections (i)-(iv) above and the Debt Service Coverage
Ratio is less than the then-applicable percentage required by the 2013 Reissue
Documents, such excess revenues shall be applied to early payment of principal
of the 2013 Bond Reissue as and to the extent required pursuant to the 2013
Reissue Documents (such Debt Service Coverage Ratio being initially set at
150% and such early payments initially being applied in inverse order of
maturity).
(B) Other Obligations. In any year in which any District
Revenues (but excluding from the scope of such defined term all Net Proceeds of
Supplemental Bonds, whether derived from Additional Developer Advances or
from other 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
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
BondsFinancing or the 2013 Bond Reissue, to reimburse the Town for the
amount of such payments and interest thereon at the non-default interest
rate commensurate with the interest paid to bondholders at the time of the
cure payment.
3. Past Developer Advances and Avon Receivable. To
satisfy payment obligations with respect to the Past Developer Advances
(including amounts payable to Buffalo Ridge Affordable Housing
Corporation) and the Avon Receivable, subject to the following:
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 such obligations were incurred, with the
52
1044033.48
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.
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 the parties thereto. Such
agreement to modify the interest rate, priority of payment or other
terms is expressly not a condition of this Development Agreement.
53
1044033.48
(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 Pledge Agreement and, the 2013 Reissue Documents, and
compliance with the priority utilization of District of Revenues as set forth in Section 6.9(b),
nothing hereinin this Section 6.9 shall be construed as prohibiting the Districts from utilizing
District Revenues for any other uses not enumerated above or from imposing a mill levy and
retaining the revenues derived therefrom for the purpose of paying for Capital Project Costs
(including but not limited to Non-Credit PIF Revenue Reimbursements payable to TC-RP
pursuant to Section 5.5(b)(iv)(B)) and/or of paying the Districts’ operation, maintenance and
administrative expenses to the extent that such costs exceed the Allowed O&M Expenses;
provided, however, that the portion of District Revenues comprising Credit PIF Revenues shall
be limited solely to the Permitted Uses as set forth in Section 6.2(a).
(d) Continuation of Priority of Use. If VMD and/or TCMD issue any form of
replacement or refunding bonds for the 2013 Bond Reissue and/or issues Supplemental Bonds,
VMD and/or TCMD, as applicable, shall cause the pertinent documentation executed in
connection therewith to incorporate the general prioritization set forth in Section 6.9(b). The
Town shall have the right to review and approve such documentation at least forty-five (45) days
prior to issuance of such replacement or refunding bonds for the limited purpose of confirming
conformance with the general prioritization set forth in Section 6.9(b).
6.10 Supplemental Bonds. If one of more of the Districts issue Supplemental Bonds
on or before January 2, 2040,1, 2040 (or incur any Deferred Reimbursements obligations that are
an Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) and which arise
pursuant to clause (2) of Section 5.5(b)(iv), notwithstanding that such obligations may be
incurred after January 1, 2040), such District(s) shall continue to receive Credit PIF Revenues
until expiration of the Term. If the Districts have not issued Supplemental Bonds prior to
January 2, 2040: (i) the Town shall have no further obligation with respect to any unissued
Supplemental Bonds capacity; (other than with respect to Deferred Reimbursements obligations
that are an Additional Developer Advance in accordance with Section 5.5(b)(iv)(A) and which
arise pursuant to clause (2) of Section 5.5(b)(iv), notwithstanding that such obligations may be
incurred after January 1, 2040); (ii) the Tax Credit shall be maintained in effect until all District
Debts payable from Credit PIF Revenues and outstanding as of January 2, 2040, (and, if
applicable, all Deferred Reimbursements payable pursuant to Section 5.5(b)(iv)(A)), are fully
paid and the Term expires as provideprovided in Section 6.1(b); and (iii) the District(s), as
applicable, shall be entitled to retain and utilize all Credit PIF Revenues they have received prior
or subsequent to January 2, 2040, (or, as applicable, prior or subsequent to January 2, 2040, with
respect to Deferred Reimbursements payable pursuant to Section 5.5(b)(iv)(A)), for servicing
District Debts or direct payment of Capital Project Costs. The applicable District shall make
commercially reasonable efforts to obtain the lowest cost of borrowing when issuing
Supplemental Bonds. The applicable District may issue Supplemental Bonds (other than
54
1044033.48
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 2013
Reissue Documents, on or after the Effective Date the Districts shall have the ongoing right to
issue Replacement Bonds to extinguish, replace, refund or defease Past Developer Advances.
The principal amount of the Past Developer Advances being extinguished, replaced, refunded or
defeased by such Replacement Bonds shall be deducted from and reduce the amount counted
against the Credit PIF Cap. The principal amount of the Replacement Bonds shall not exceed
$12.4 million without the Town’s prior written approval, and the interest rate of such
Replacement Bonds shall bear a lower interest rate than such Past Developer Advances. For the
purposes of determining the maximum allowable interest rate of Replacement Bonds, the interest
rate of Past Developer Advances which are extinguished, replaced, refunded or defeased with
Replacement Bonds (but excluding from such calculation those Past Developer Advances with
respect to which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II)
shall be averaged with regard to the respective interest rate and amount of principal. The interest
rate of Past Developer Advances (excluding those Past Developer Advances with respect to
which the interest rate has been reduced to 1.5% pursuant to Section 6.9(b)(v)(B)3.II) shall be as
determined by this Development Agreement on the Effective Date. To the extent the accrued
and unpaid interest payable under the terms of the Past Developer Advance documents is not
capitalized in or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be
carried forward as an accrued and unpaid interest obligation under the terms of the Past
Developer Advance documents, the unpaid interest obligation shall not bear any interest, and the
unpaid interest obligation shall not be discharged until paid in full.
6.12 Refunding and Refinancing. As set forth in Section 6.2(c)(ii), and subject to the
limitations set forth in this Section 6.12, the Districts shall have the ongoing right to issue
refunding bonds or other debt instruments to repay, refund and/or defease, in whole or in part,
the principal and Bond Requirements of the obligations described in subsections (i), (ii), (iii) and
(iv) of Section 6.2(b). The principal and Bond Requirements of such refunding bonds or other
debt instruments shall not count against the Credit PIF Cap. Notwithstanding the foregoing, if
the principal amount of any bonds or other debt instruments issued to repay, refund and/or
defease or otherwise refinance the 2013 Bond Reissue exceeds the then outstanding principal
amount of the 2013 Bond Reissue, only that portion of the increased principal which is in excess
of $52,100,000 (FIFTY TWO MILLION ONE HUNDRED THOUSAND DOLLARS) shall be
included in the Cap Amounts and count against the Credit PIF Cap. The interest rates on
refunding bonds are subject to the requirements governing interest rates for Supplemental Bonds
set forth in Section 6.10.; provided, however, that the interest rate for refinancing the outstanding
“capitalized” principal balance of any Deferred Reimbursement amounts repayable as an
55
1044033.48
Additional Developer Advance pursuant to Section 5.5(b)(iv)(A) shall be equal to or lower than
the interest rate of the Additional Developer Advance being refinanced. Without the Town’s
prior written consent, the aggregate principal and interest due on fixed rate refunding bonds or
other debt instruments with fixed interest rates, from their date of issuance to final maturity
(disregarding any option to redeem prior to maturity), shall be less than or equal to the aggregate
principal and interest due on the debt to be repaid, refunded, defeased or otherwise refinanced,
from the date of the refunding to final maturity (disregarding any option to redeem prior to
maturity).
6.13 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the
Town shall have the right, but not the obligation, to cure any District’s payment default under the
Tank Project BondsFinancing, the 2013 Bond Reissue or any Supplemental Bonds and to receive
reimbursement of any such cure payments in accordance with the terms and conditions of
Section 6.9(b)(v)(B)2.
6.14 Town Funding of Credit PIF Cap. At any time after the 2013 Bond Reissue
obligations have been fully satisfied (including through payment by the Town pursuant to this
Section 6.14), the Town shall have the right, but not the obligation, to pay off all or a portion of
the then-outstanding District Debts and/or satisfy the Town’s obligation with respect to funding
the full Credit PIF Cap as follows:
(a) Full Funding of Credit PIF Cap. The Town shall have the right to fully
fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debts; and (ii) remitting
to TCMD (or, if so directed in writing by Master Developer with TCMD’s written consent, to the
Commercial PIC (for subsequent assignment to a District for use in accordance with the
Financing Plan)) the amount, if any, of available but unutilized Credit PIF Cap capacity as of the
date of payoff. The total obligation to the Districts and/or the Commercial PIC shall not exceed
the Credit PIF Cap. For example, if the sum of the Net Proceeds of previously retired 2013 Bond
Reissue obligations and other District Debts retired by the Town totals $80 million, the amount
of unutilized Credit PIF Cap capacity to be paid by the Town to TCMD (or to such other party as
may be designated as provided herein) would be $16 million [$96 million - $80 million = $16
million]. Upon remitting the funds to fully fund the payoff amounts pursuant to the foregoing
terms and conditions, the Town shall be entitled to terminate the Tax Credit. Simultaneously
with Town’s exercise of its right to terminate the Tax Credit, the PICs’ obligation to cause the
Municipal Payments to be remitted to the Town pursuant to the terms and conditions of this
Development Agreement, and all right or claim of the Town to receive any portion of the
Add-On RSF Revenues imposed after the date which Town exercises its right to terminate the
Tax Credit, shall automatically and without the requirement of further action terminate, be of no
further force or effect, and be forever extinguished.
(b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debts but not to advance the funds required to fund the
unutilized Credit PIF Cap capacity remaining available for utilization as provided in this
Financing Plan. In such event and as otherwise provided in this Development Agreement, the
Tax Credit shall continue in effect for the duration of the Term, the PICs shall continue to
impose the Credit PIF and cause the collection of the Credit PIF Revenues, and the PICs shall
continue to cause the Municipal Payments to be remitted to the Town. All Credit PIF Revenues
56
1044033.48
available (for example, Credit PIF Revenues not otherwise encumbered by and required to
service debt on Supplemental Bonds issued after the date of the Town’s payoff) to TCMD, or to
such other party as may be designated in the manner described in clause (ii) of Section 6.14(a),
shall be placed in escrow by TCMD or such designated party and applied from time to time
toward Supplemental Bonds and/or direct payment of Capital Project Costs. The Credit PIF
Revenues placed into escrow shall be subject to an agreement which grants the Town the right to
enforce, restrict and limit the use of such escrow funds for payment of Capital Project Costs.
6.15 Other Taxes Town May Not Collect. The Town shall not be entitled to impose,
collect, receive, retain, expend or utilize Town taxes imposed upon the Public Improvement Fees
described in subsections 6.15(a) and 6.15(b). In the event that the Town is legally required by
municipal, state or federal law to impose the Town’s tax on a Public Improvement fee described
in subsections 6.15(a) and/or 6.15(b), the Town shall, subject to annual appropriation to the
extent required by Section 20 of Article X of the Colorado Constitution, remit the full amount of
the Town tax imposed upon such Public Improvement Fee to TCMD 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 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 the corresponding Retail Sales Fee.
(b) Real Estate Transfer Tax. The Town’s real estate transfer tax shall not
apply to the Real Estate Transfer Fee.
6.16 Other Taxes Town May Collect. The Town is entitled to collect, receive, retain,
expend and utilize for any lawful Town purpose in the Town’s discretion the following tax
revenues:
(a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF
added to each retail sales transaction shall be included in the Taxable Transaction. The Retail
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.
57
1044033.48
(d) Town Share of Eagle County Sales Taxes. The Town is entitled to collect,
receive, retain, expend and utilize any portion of Eagle County’s sales tax revenues generated by
transactions occurring within the Project that the Town is entitled to receive pursuant to any
agreements with Eagle County in effect from time to time.
(e) Future Taxes, Assessments and Fees. The Town is entitled to collect,
receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees
imposed by the Town and not addressed in this Development Agreement which are imposed
uniformly and non-discriminately throughout the Town.
6.17 Books and Records. The Town, AURA, the PICs and the Districts each shall
maintain adequate books and records to accurately perform and account for their respective
obligations under this Development Agreement. Each such Party or Limited Party shall, upon
request of any other such Party or Limited Party, permit representatives of such requesting entity
reasonable access during normal business hours to review and, at the requesting entity’s expense,
audit such books and records in order to permit such requesting entity to determine compliance
with the terms of this Development Agreement or the accuracy of any information contained in
any statement, notice, invoice or report required to be provided under this Development
Agreement. All such Parties and Limited Parties shall use their best efforts to resolve any
issues, discrepancies, or inaccuracies discovered in any such statement, notice, invoice or report
or in such requesting entity’s review or audit of the applicable books and records. For so long as
BNP is providing a Letter of Credit to secure the 2013 Bond Reissue or any amounts are due and
owing to BNP in connection with the 2013 Bond Reissue, BNP shall have the same right to
reasonable access to review and audit books and records to determine compliance with the terms
of this Development Agreement or the accuracy of any information as set forth above with
respect to the Town, AURA, the PICS and the Districts.
6.18 Cooperation Regarding Delinquent Public Improvement Fees. If the PICs are
unable to collect any portion of the Public 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 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
58
1044033.48
the Tax Credit (if applicable) against such person or entity’s corresponding tax obligation (if
any), which Tax Credit shall fully satisfy any corresponding tax liability to the Town. The Town
shall nevertheless be entitled to recover from the PICs the administrative fee and any costs
incurred in the enforcement and recovery of such Public Improvement Fees.
6.19 Creation of Additional PICs and/or Districts. Master Developer reserves the right
to create such additional PICs as may be necessary or desirable from time to time. With the prior
written consent of BNP (for so long as there are outstanding obligations to BNP under the 2013
Reissue Documents [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
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.
59
1044033.48
7.2 Default by TCMD or VMD. A “breach” or “default” by TCMD or VMD shall be
defined as TCMD’s or VMD’s respective failure to fulfill or perform any obligation of such
Party that is expressly set forth in this Development Agreement.
7.3 Default by Master Developer. A “breach” or “default” by Master Developer shall
be defined as Master Developer’s failure to fulfill or perform any obligation of Master Developer
that is expressly set forth in this Development Agreement.
7.4 Default by Limited 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
60
1044033.48
Development Agreement, be entitled to enforce the provisions and any remedy provided in this
Development Agreement at law or in equity, and relief in the nature of injunctive relief,
mandamus, specific performance or damages or a combination may be awarded. The remedies
available shall include, but not be limited to, ex parte applications for temporary restraining
orders, preliminary injunctions and permanent injunctions and actions for specific performance
of the defaulting Party’s or defaulting Limited Party’s obligations and/or damages. All of the
remedies permitted or available under this Development Agreement, at law, by statute or in
equity shall be cumulative and not in the alternative, and invocation of any such right or remedy
shall not constitute a waiver or election of remedies with respect to any other permitted or
available right or remedy. For the avoidance of doubt and in order to clarify the effect of the
foregoing as it relates to the Financing Plan: (i) the Town hereby forever waives and
relinquishes any claim or right to terminate the Tax Credit for so long as any District Debts
remain outstanding; and (ii) in consideration of this Development Agreement constituting an
intergovernmental agreement by and among the Town, AURA, TCMD and VMD pursuant to
C.R.S. §§ 29-1-203 and 29-20-105, each such governmental or quasi governmental entity
expressly acknowledges that the Town, AURA, TCMD and VMD each shall have standing to
enforce this Development Agreement, including specific 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.
61
1044033.48
(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 an y 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.
(d) Intended Beneficiaries. Each of the following Intended Beneficiaries shall
have the right to enforce specified provisions of this Development Agreement, as described
below.
(i) BNP. For so long as there are outstanding obligations to BNP
under the 2013 Reissue Documents, BNP shall have all rights and remedies available to a
Party with respect to enforcement of the following Town and/or AURA and/or other
expressly identified obligations:
62
1044033.48
(A) Generally, the obligations set forth in Article 4 and
Article 6.
(B) Pursuant to Sections 4.2(a) and 6.2, the Town’s obligation
to maintain the Tax Credit in effect.
(C) Pursuant to Sections 6.3(a) and 6.3(b), the right to enforce
the Town’s obligations with respect to application of the real estate transfer tax
and Real Estate Transfer Fee, and with respect to retail sales transactions that are
effected remotely.
(D) Pursuant to Section 6.7(c), BNP’s right to participate on the
AURA board of directors with respect to any urban renewal plans for any portion
of the Property.
(ii) Developer Affiliates and Landowners. Each Developer Affiliate
and each Landowner shall have all rights and remedies available to Master Developer.
ARTICLE 8
Miscellaneous
8.1 Applicable Law. This Development Agreement shall be construed and enforced
in accordance with the laws of the State of Colorado.
8.2 No Joint Venture or Partnership. No form of joint venture or partnership exists
between the Town, Master Developer, AURA, the PICs, the Districts and/or BNP, and nothing
contained in this Development Agreement shall be construed as making any of the Parties,
Limited Parties and/or Intended Beneficiaries joint venturers or partners.
8.3 Expenses. Except as otherwise provided in this Development Agreement, Master
Developer, EMD, TCMD, VMD, each Developer Affiliate, each Limited Party, each Intended
Beneficiary and the Town shall each bear their respective costs and expenses associated with
entering into, implementing and enforcing the terms of this Development Agreement.
8.4 Waiver. No waiver of one or more of the terms of this Development Agreement
shall constitute a waiver of other terms. No waiver of any provision of this Development
Agreement in any instance shall constitute a waiver of such provision in other instances.
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
63
1044033.48
the Tax Credit in effect, in accordance with the terms and remedies set forth in this Development
Agreement; (ii) the Financing Plan and the Town’s agreement to forego the collection of sales
tax revenues, real estate transfer tax revenues and accommodations/lodging tax revenues by
maintaining the Tax Credit in effect during the Term does not constitute the creation of a
multiple-fiscal year direct or indirect debt or other financial obligation of the Town, and does not
constitute a new tax, tax rate increase or tax policy change directly causing a net tax revenue gain
to the Town; and (iii) nothing in this Development Agreement constitutes (A) a pledge of the
Town’s credit, (B) special legislation under Article V, section 25 of the Colorado Constitution,
or (C) a grant in aid under Article XI, sections 1 and 2 of the Colorado Constitution.
8.6 Severability. If a final order issued by a court of competent jurisdiction holds any
term, provision, covenant or condition of this Development Agreement to be invalid, void or
unenforceable, the remaining provisions of this Development Agreement shall, unless amended
or modified as provided in Section 1.5, continue in full force and effect so long as enforcement
of the remaining provisions would not deprive the Party(ies) or Limited Party(ies) against whom
they are being enforced of a material benefit of the bargain under this Development Agreement
or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then
pertaining. For the avoidance of doubt, a determination that the Town’s obligation to maintain
the Tax Credit in effect in accordance with the terms and conditions of the Financing Plan, or a
determination that the Town’s right to receive the Municipal Payments, is invalid, void,
unenforceable or that the remedy of specific performance is not available with respect to the
Town’s obligations under the Financing Plan or the Town’s right to receive the Municipal
Payments: (i) shall be construed as depriving the adversely affected Parties and Limited Parties
of a material benefit of the bargain and being otherwise inequitable to such Parties and Limited
Parties; and (ii) this Development Agreement shall be deemed void and of no further effect
unless modified by the Parties as provided in Section 1.5 or judicially reformed in such a manner
that the Town’s obligations and commitments set forth in the Financing Plan, and/or the Town’s
right to receive Municipal Payments, as applicable, can be materially performed and complied
with by alternative means. Unless amended or reformed as provided herein, entry of a final
order holding the Town’s obligation to maintain the Tax Credit in effect invalid or unenforceable
shall entitle Master Developer and affected Landowners to entry of an order enforcing the
remedy set forth in Section 7.7(b)(ii) and, correspondingly, entry of a final order holding the
Town’s right to receive Municipal Payments invalid or unenforceable shall entitle the Town to
disconnect the Property.
8.7 Further Assurances. Each Party shall undertake such actions and shall execute
and deliver to the other all such other further instruments and documents as may be reasonably
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.
64
1044033.48
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):
To the Town:
Town of Avon
P.O. Box 975
65
1044033.48
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
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
66
1044033.48
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
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
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
67
1044033.48
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
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
68
1044033.48
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.]
8.13 Counterparts. This Development Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties and the Limited Parties have executed this
Development Agreement as of the Execution Date, with the intent that this Development
Agreement shall be legally binding on each such signatory and legally attach to and encumber
the Property upon the occurrence of the Effective Date.
[SIGNATURE AND NOTARY PAGES FOLLOW THIS PAGE]
69
1044033.48
Signature and Notary Pages for
Consolidated, Amended and Restated Annexation and Development Agreement
for The Village (at Avon)
PARTIES:
TOWN:
THE TOWN OF AVON, a home rule municipal
corporation of the State of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as __________________ of THE TOWN OF AVON, a
home rule municipal corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
70
1044033.48
TCMD:
TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Daniel J. Leary as President of TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
71
1044033.48
VMD:
THE VILLAGE METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado
By:
Name: Daniel J. Leary
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Daniel J. Leary as President of THE VILLAGE METROPOLITAN DISTRICT, a
quasi-municipal corporation and political subdivision of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
72
1044033.48
MASTER DEVELOPER:
TRAER CREEK LLC, a Colorado limited liability
company
By:
Name: Michael Lindholm
Title: Authorized Signatory
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Michael Lindholm as Authorized Signatory of TRAER CREEK LLC, a Colorado
limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
73
1044033.48
EMD LIMITED LIABILITY COMPANY, a
Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its
Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by Michael Lindholm as President of Lava Corporation, a Colorado corporation, Manager
of EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
74
1044033.48
LIMITED PARTIES:
AURA:
THE AVON URBAN RENEWAL AUTHORITY, a
body corporate duly organized and existing as an
urban renewal authority under the laws of the State
of Colorado
By:
Name:
Title:
Approved as to legal form by:
Eric J. Heil, Esq., Town Attorney
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as _____________________ of THE AVON URBAN
RENEWAL AUTHORITY, a body corporate duly organized and existing as an urban renewal
authority under the laws of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
75
1044033.48
MIXED USE PIC:
THE VILLAGE (AT AVON) MIXED USE
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) MIXED USE PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
76
1044033.48
COMMERCIAL PIC:
THE VILLAGE (AT AVON) COMMERCIAL
PUBLIC IMPROVEMENT COMPANY, a
Colorado non profit corporation
By:
Name:
Title:
STATE OF COLORADO )
) ss.
COUNTY OF ______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of THE VILLAGE (AT
AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado non profit
corporation.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
77
1044033.48
ACKNOWLEDGEMENT AND CONSENT OF BNP PARIBAS
The undersigned representatives of BNP Paribas, an international bank (as defined in the
foregoing Development Agreement, “BNP”), in its capacity as the issuer of irrevocable direct
pay letter(s) of credit securing the Traer Creek Metropolitan District Variable Rate Revenue
Bonds, Series 2002, and the Traer Creek Metropolitan District Variable Rate Revenue Bonds,
Series 2004, hereby acknowledge and consent to the foregoing Consolidated, Amended and
Restated Annexation and Development Agreement for The Village (at Avon).
BNP PARIBAS:
By:
Name:
Title:
BNP PARIBAS:
By:
Name:
Title:
STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
78
1044033.48
STATE OF NEW YORK )
) ss.
COUNTY OF _______________ )
The foregoing instrument was acknowledged before me this ____ day of _________,
2013, by _____________________ as ________________________ of BNP Paribas.
Witness my hand and official seal.
My commission expires:
Notary Public
(SEAL)
A-1
1001679.22 FINAL1044033.5
EXHIBIT A
Legal Description of the Property
Lots 2, 3 and 4, and Tracts B and E, Final Plat, The Village (at Avon) Filing 1, according to the
plat thereof recorded in the office of the Eagle County, Colorado, Clerk and Recorder under
Reception No. 795007;
Lots 1, 5 and 6, and Tracts A, C, D, F and G, Amended Final Plat, The Village (at Avon) Filing 1,
according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk and
Recorder under Reception No. 898173;
Lots 1 through 5, inclusive, and Tracts A through H, inclusive, Final Plat, The Village (at Avon)
Filing 2, according to the plat thereof recorded in the office of the Eagle County, Colorado, Clerk
and Recorder under Reception No. 796831;
Tracts A, D, E, G and H, Final Plat, The Village (at Avon) Filing 3, according to the plat thereof
recorded in the office of the Eagle County, Colorado, Clerk and Recorder under Reception
No. 882776; and
Tracts B and F, Amended Final Plat, The Village (at Avon) Filing 3, A Reconfiguration of Tracts
B and F, according to the plat thereof recorded in the office of the Eagle County, Colorado,
Clerk and Recorder under Reception No. 200712166.
TOGETHER WITH THE FOLLOWING PARCEL (OS5):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying north of the Denver & Rio Grande Western Railroad right-of-way line,
described as follows:
Beginning at the N 1/4 corner of said Section 17; thence S89°23'36"23’36”E 526.76 feet, along the
northerly line of said NE 1/4 of Section 17, to the northerly right-of-way line of the Denver & Rio
Grande Western Railroad; thence, departing said northerly line of Section 17, the following two
courses along the northerly right-of-way line of the Denver & Rio Grande Western Railroad, said
northerly right-of-way line being parallel with and 50 feet northerly of the centerline of the existing
railroad tracks: (1) S80°36'27"36’27”W 267.66 feet; (2) 263.93 feet along the arc of a curve to the
right, having a radius of 2486.03 feet, a central angle of 06°04'58",04’58”, and a chord which bears
S83°38'57"38’57”W 263.81 feet, to the westerly line of said NE 1/4 of Section 17; thence
N00°20'55"20’55”W 78.44 feet, along said westerly line, to the point of beginning containing 0.53
acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (OS6):
That part of the NE 1/4 of Section 17, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., lying south of the Denver & Rio Grande Western Railroad right-of-way line and
north of the centerline of the Eagle River, described as follows:
A-2
1001679.22 FINAL1044033.5
Beginning at the Northeast corner of said Section 17; thence S01°41'49"41’49”E 96.93 feet, along
the easterly line of said Section 17, to the True Point of Beginning; thence, continuing along said
easterly line, S01°41'49"41’49”E 73.07 feet, to the centerline of said Eagle River; thence the
following four courses along said centerline (Filum aquce): (1) N89°24'49"24’49”W 1037.9 feet;
(2) N86°07'49"07’49”W 472.00 feet; (3) N89°29'49"29’49”W 538.00 feet; (4) S82°33'11"33’11”W
595.15 feet, to the westerly line of said NE 1/4; thence N00°20'55"20’55”W 49.18 feet, along said
westerly line to the southerly right-of-way line of the Denver & Rio Grande Western Railroad;
thence, departing said westerly line of Section 17, the following five courses along the southerly
right-of-way line of the Denver & Rio Grande Western Railroad, said southerly right-of-way line
being parallel with and 50 feet southerly of the centerline of the existing railroad tracks: (1) 279.72
feet along the arc of a curve to the left, having a radius of 2586.03 feet, a central angle of
06°11'51",11’51”, and a chord which bears N83°42'23"42’23”E 279.58 feet; (2) N80°36'27"36’27”E
350.86 feet; (3) 686.44 feet along the arc of a curve to the right, having a radius of 3171.27 feet, a
central angle of 12°24'07",24’07”, and a chord which bears N86°48'31"48’31”E 685.10 feet;
(4) S86°59'25"59’25”E 1216.38 feet; (5) 112.54 feet along the arc of a curve to the right, having a
radius of 2549.33 feet, a central angle of 02°31'46".31’46”. and a chord which bears
S85°43'31"43’31”E 112.53 feet, to the True Point of Beginning, containing 5.28 acres, more or less.
TOGETHER WITH THE FOLLOWING PARCEL (EAST PARCEL):
Those parts of Sections 7, 8, 9 & 10, Township 5 South, Range 81 West of the Sixth Principal
Meridian, Eagle County, Colorado, according to the Dependent Resurvey of said Township and
Range, accepted November 1, 1943 by the Department of the Interior General Land Office in
Washington, D.C., described as a whole as follows:
Beginning at the Northwest corner of said Section 8; thence the following four courses along the
northerly line of said Section 8: (1) N88°40'41"40’41”E 1379.49 feet, to the W 1/16 corner of
said Section 8 and Section 5 of said Township and Range; (2) N88°40'41"40’41”E 1379.49 feet,
to the 1/4 corner of said Sections 8 and 5; (3) N88°42'58"42’58”E 1385.36 feet, to the E 1/16
corner of said Sections 8 and 5; (4) N88°42'58"42’58”E 1385.36 feet, to the corner of said
Sections 5, 8 and 9 and Section 4 of said Township and Range; thence the following four
courses along the northerly line of said Section 9: (1) N83°29'30"29’30”E 1386.63 feet, to the W
1/16 corner of said Sections 9 and 4; (2) N83°29'30"29’30”E 1386.64 feet, to the 1/4 corner of
said Sections 9 and 4; (3) N83°24'12"24’12”E 1386.30 feet, to the E 1/16 corner of said
Sections 9 and 4; (4) N83°24'12"24’12”E 1386.30 feet, to the corner of said Sections 4, 9 and
10 and Section 3 of said Township and Range; thence the following two courses along the
northerly line of said Section 10: (1) N86°39'24"39’24”E 1381.29 feet, to the W 1/16 corner of
said Sections 10 and 3; (2) N86°39'24"39’24”E 1299.94 feet; thence, departing said northerly
line, S01°34'07"34’07”W 2699.66 feet, to the east-west centerline of said Section 10; thence,
along said east-west centerline, S86°32'23"32’23”W 1304.06 feet, to the W 1/16 corner of said
Section 10; thence S01°32'50"32’50”W 1349.33 feet, along the easterly line of the NW 1/4 SW
1/4 of said Section 10, to the SW 1/16 corner of said Section 10; thence S86°32'47"32’47”W
1384.91 feet, along the southerly line of said NW 1/4 SW 1/4, to the S 1/16 corner of said
Sections 10 and 9; thence S77°10'15"10’15”W 1413.37 feet, along the southerly line of the NE
1/4 SE 1/4 of said Section 9, to the SE 1/16 corner of said Section 9; thence S01°33'02"33’02”W
1475.32 feet, along the easterly line of the SW 1/4 SE 1/4 of said Section 9, to the E 1/16 corner
of said Section 9 and Section 16 of said Township and Range; thence S72°20'31"20’31”W
1450.43 feet, along the southerly line of said SW 1/4 SE 1/4, to the 1/4 corner of said Sections 9
and 16; thence N01°34'18"34’18”E 1601.52 feet, to the CS 1/16 corner of said Section 9; thence
A-3
1001679.22 FINAL1044033.5
S86°07'30"07’30”W 1378.19 feet, along the southerly line of the NE 1/4 SW 1/4 of said
Section 9, to the SW 1/16 corner of said Section 9; thence S01°33'13"33’13”W 1506.37 feet,
along the easterly line of the SW 1/4 SW 1/4 of said Section 9, to the W 1/16 corner of said
Sections 9 and 16; thence N89°55’04”W 1371.96 feet, along the southerly line of said SW 1/4
SW 1/4 to the section corner of said Sections 8, 9, 16, and 17 of said Township and Range;
thence N01°32’00”E 3.82 feet, along the westerly line of Section 9, to the northerly right-of-way
line of the Denver & Rio Grande Western Railroad, said northerly right-of-way line being parallel
with and 50 feet northerly of the centerline of the existing railroad tracks; thence the following
two courses along said northerly right-of-way line: (1) 104.48 feet along the arc of a curve to the
left, having a radius of 2649.33 feet, a central angle of 02°15’34”, and a chord which bears
N85°51’36”W 104.47 feet; (2) N86°59’25”W 1213.28 feet, to the westerly line of the SE 1/4 SE
1/4 of said Section 8; thence N00°51’07”E 1337.77 feet, along said westerly line, to the SE 1/16
corner of said Section 8; thence N89°54'54"54’54”W 1333.58 feet, along the southerly line of the
NW 1/4 SE 1/4 of said Section 8, to the CS 1/16 corner of said Section 8; thence
N89°58'35"58’35”W 1366.46 feet, along the southerly line of the NE 1/4 SW 1/4 of said
Section 8, to the SW 1/16 corner of said Section 8; thence S00°01'37"01’37”E 919.47 feet,
along the easterly line of the SW 1/4 SW 1/4 of said Section 8, to the northerly right-of-way line
of Interstate Highway No. 70, as described in the deed recorded in Book 223 at Page 982 in the
office of the Eagle County, Colorado, Clerk and Recorder; thence the following ten courses
along said northerly right-of-way line: (1) N65°30'20"30’20”W 249.79 feet;
(2) N78°47'50"47’50”W 317.2 feet; (3) N83°08'20"08’20”W 506.7 feet; (4) 772.2 feet along the
arc of a curve to the right, having a radius of 1462.0 feet, a central angle of 30°15'52",15’52”,
and a chord which bears N54°57'56"57’56”W 763.3 feet; (5) N34°37'50"37’50”W 331.1 feet;
(6) N34°44'20"44’20”W 368.5 feet; (7) 804.9 feet along the arc of a curve to the left, having a
radius of 1812.0 feet, a central angle of 25°27'04",27’04”, and a chord which bears
N51°29'50"29’50”W 798.3 feet; (8) N68°24'50"24’50”W 399.7 feet; (9) N49°47'20"47’20”W 213.6
feet; (10) N70°20'50"20’50”W 765.1 feet, to the northerly line of the SE 1/4 of said Section 7;
thence the following two courses along said northerly line: (1) N89°50'40"50’40”E 1194.46 feet,
to the CE 1/16 corner of said Section 7; (2) N89°50'40"50’40”E 1378.25 feet, to the 1/4 corner of
said Sections 7 and 8; thence the following two courses along the westerly line of said
Section 8: (1) N00°10'53"10’53”W 1369.09 feet, to the S 1/16 corner of said Sections 7 and 8;
thence N00°10'53"10’53”W 1369.10 feet, to the point of beginning.
EXCLUDING from above The Village (at Avon) Filing 3 according to the plat thereof recorded in
the office of the Eagle County, Colorado, Clerk and Recorder under Reception No. 882776.
Said East Parcel containing 1366.95 acres, more or less, with The Village (at Avon) Filing 3
area subtracted.
B-1
1001679.22 FINAL1044033.5
EXHIBIT B
Form of Special Warranty Deed for Conveyances to Town
SPECIAL WARRANTY DEED
[STATUTORY FORM – C.R.S. § 38-30-115]
[TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and
political subdivision of the State of Colorado] (“Grantor”), whose street address is [141 Union
Boulevard, Suite 150, c/o Special District Management, Lakewood, CO 80228-1898, County of
Jefferson], State of Colorado, for the consideration of Ten and 00/100 Dollars ($10.00) and
other good and valuable consideration, in hand paid, hereby sells and conveys to THE TOWN
OF AVON, a home rule municipal corporation of the State of Colorado (“Grantee”), whose
street address is 400 Benchmark Road, Avon, Colorado 81620, County of Eagle, State of
Colorado (“Grantee”), the real property that is described on Exhibit A attached hereto and
made a part hereof, with all its appurtenances, and warrants the title to the same against all
persons claiming under Grantor, subject to the matters set forth on Exhibit B attached hereto
and made a part hereof.
[TRAER CREEK METROPOLITAN DISTRICT, a
quasi-municipal corporation and political
subdivision of the State of Colorado]
By:
Name:
Title:
STATE OF ___________ )
) ss:
COUNTY OF _________ )
The foregoing instrument was acknowledged before me this ____ day of
____________________, 200__, by _________________________ as ________________ of
_____________________________, a ____________________.
Witness my hand and official seal.
My commission expires:
Notary Public
B-2
1001679.22 FINAL1044033.5
EXHIBIT A
TO SPECIAL WARRANTY DEED
Description of the Property
[insert description of property or property interest to be conveyed]
B-3
1001679.22 FINAL1044033.5
EXHIBIT B
TO SPECIAL WARRANTY DEED
Restrictions and/or Reservations
Restrictions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to the following restrictions, which restrictions shall be binding on Grantee and all
successors and assigns of Grantee, and which Grantor and its successors and assigns shall have
the right to enforce by an action for specific performance, mandamus, mandatory or prohibitory
injunction or other equitable or legal remedy:
1. [insert applicable use/other deed restrictions or state non applicable]
Reservations: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to Grantor’s reservation of the following rights with respect to the Property:
1. [insert applicable reservations or state non applicable]
Exceptions: Conveyance of the Property pursuant to the foregoing Special Warranty Deed is
subject to the following exceptions:
1. [insert applicable exceptions]
C-1
1001679.22 FINAL1044033.5
EXHIBIT C
Form of Covenant and Temporary Easement Agreement
COVENANT AND TEMPORARY EASEMENT AGREEMENT
THIS COVENANT AND TEMPORARY EASEMENT AGREEMENT (this “Easement
Agreement”) is made and entered into as of this _____ day of _________________, 2013
(“Effective Date”), by and between the TOWN OF AVON, a home rule municipal corporation
of the State of Colorado (together with its successors and assigns, “Grantor”); and EMD
LIMITED LIABILITY COMPANY, a Colorado limited liability company (together with its
successors and assigns, “Grantee”).
Recitals
A. Grantor is the owner of certain real property located in Eagle County, Colorado, legally
described on EXHIBIT A: LEGAL DESCRIPTION OF FS VILLAGE PARCEL
attached hereto and incorporated herein by this reference, which property is generally
referred to as the Forest Service Village Parcel (“FS Village Parcel”).
B. Grantee is the owner of certain real property located in Eagle County, Colorado, legally
described on EXHIBIT B: LEGAL DESCRIPTION OF PLANNING AREA I
attached hereto and incorporated herein by this reference, which property is designated as
Planning Area I (“Planning Area I”) pursuant to The Village (at Avon) PUD Master
Plan, Formal Amendment Two as recorded in the real property records of Eagle County,
Colorado on ______________, 2013 at Reception No. ______________ (“PUD Master
Plan”).
C. Exhibit F of The Village (at Avon) Amended and Restated PUD Guide dated as of
_______________, 2013 and recorded in the real property records of Eagle County,
Colorado on _______________, 2013 at Reception No. __________________ (“PUD
Guide”), establishes the applicable design and improvement standards (“Design
Standards”) for construction of an extension of Swift Gulch Road as a rural local
roadway (“Planning Area I Access Road”) over, across and through the FS Village
Parcel to provide access to Planning Area I from Planning Area J.
D. Grantor and Grantee are parties to that certain Consolidated, Amended and Restated
Annexation and Development Agreement for The Village (at Avon) dated as of
_____________, 2013 and recorded in the real property records of Eagle County,
Colorado on ______________, 2013 at Reception No. ______________ (“Development
Agreement”).
E. Pursuant to Section 4.2(e) of the Development Agreement: (i) Grantor is legally
obligated to execute and deliver this Easement Agreement to Grantee (or to the then-
Landowner(s) of Planning Area I) within three (3) business days after acquiring title to
the FS Village Parcel, but in any event prior to permitting the recordation of a
conservation easement or similar instrument limiting potential development within the FS
Village Parcel or any other conveyance by the Town of the FS Village Parcel or any
C-2
1001679.22 FINAL1044033.5
interest therein; and (ii) this Easement Agreement shall be recorded as a prior interest to
any conservation easement or similar instrument, and any such subsequent conveyance or
grant by the Town shall be expressly subject and subordinate to this Easement
Agreement.
F. Prior to actual construction of the Planning Area I Access Road, the alignment of the
Planning Area I Access Road and the Temporary Easement (as defined in Paragraph 2)
are intended to be conceptual and to assure Grantee’s legal right to construct the Planning
Area I Access Road in an alignment to be finally established at the time of construction
drawing review and approval by Grantor in its governmental capacity in connection with
future development application review for Planning Area I.
G. Grantor and Grantee intend that execution, delivery and recording of this Easement
Agreement shall constitute satisfaction of Grantor’s obligations pursuant to Section 4.2(e)
of the Development Agreement and shall be construed and enforced in that manner which
enables Grantee’s enjoyment of the rights granted to Grantee in this Easement
Agreement, including but not limited to the future construction, operation and
maintenance of the Facilities (as defined in Paragraph 2) in accordance with the terms
and conditions of the Design Standards, the PUD Guide and the Development
Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the covenants and agreements
hereinafter set forth and for other good and valuable consideration, the receipt and legal
sufficiency of which are hereby acknowledged, Grantor and Grantee agree as follows:
1. Covenant to Consent to Applications. If Grantor acquires fee title to the FS Village
Parcel, Grantor agrees and covenants that Grantor shall provide consent as the owner of the FS
Village Parcel to Grantee, including providing a properly acknowledged power of attorney to
Grantee, that Grantee may submit a subdivision application pursuant to Avon Municipal Code
§7.16.020(b)(1) for the FS Village Parcel to plat and dedicate a public road right-of-way. The
grant of this covenant shall not restrict or diminish the Grantor’s rights to review a subdivision
application and/or application for road construction, an accompanying pedestrian/recreational
trail facility or other associated public improvements in accordance with the Design Standards
and other applicable standards and procedures of the PUD Guide and the Avon Municipal Code.
2. Grant of Temporary Easement. Grantor hereby grants, bargains, sells and conveys to
Grantee, together with its engineers, contractors, employees and similar consultants to Grantee
and/or its assigns as may be necessary or desirable (collectively, “Permittees”), a temporary,
non-exclusive, easement appurtenant to Planning Area I (“Temporary Easement”) over, under,
through and across that portion of the FS Village Parcel which is graphically depicted in
EXHIBIT C: GRAPHIC DESCRIPTION OF TEMPORARY EASEMENT AREA
(“Temporary Easement Area”) for the right to enter upon the Temporary Easement Area and
such adjacent areas of the FS Village Parcel thereto as may reasonably be necessary to survey,
conduct geotechnical and similar physical investigation related to construction of the Roadway
Facilities and the Utility Facilities, as each are defined in Paragraph 3 below (collectively, the
C-3
1001679.22 FINAL1044033.5
“Facilities”). The Temporary Easement shall commence on the date of execution of this
Easement Agreement and shall continue through the date on which the Planning Area I Access
Road is constructed and dedicated to the Town in accordance with the applicable provisions of
the Development Agreement, the PUD Guide and the Avon Development Code, whereupon the
Temporary Easement and this Easement Agreement shall terminate and shall be of no further
force and effect. Nothing contained herein shall obligate Grantee to install, or cause to be
installed, any or all of the Facilities or to otherwise provide for any such use.
3. Temporary License Agreement. Upon the approval by Grantor of a properly
submitted subdivision application establishing and dedicating a public road right-of-way within
the FS Village Parcel as contemplated by the Development Agreement and this Easement
Agreement, and an approval by Grantor of a properly submitted application and public
improvements agreement for construction of the Facilities within such dedicated public road
right-of-way, Grantor and Grantee will execute a Temporary License Agreement to allow
construction of the Facilities in accordance with the Design Standards and other applicable
procedures and standards set forth in the Development Agreement, the PUD Guide and the Avon
Development Code. The Temporary License Agreement shall permit the Grantee to enter upon
the FS Village Parcel and to: (i) construct and install drive lanes, roadways, landscaping,
sidewalks, bike paths, recreational trail, retaining walls, and other access facilities necessary or
desirable for such access, and all fixtures and devices reasonably used or useful in the operation
of such facilities (collectively, the “Roadway Facilities”); (ii) construct and install water lines,
sanitary sewer lines, storm drainage facilities, electrical lines, gas lines, telephone lines, fiber
optic lines, cable television lines and similar utilities and utility facilities, together with all
sleeves, conduit, junction boxes, vaults, fixtures and devices reasonably used or useful in the
operation of such facilities, whether publicly or privately owned (collectively, the “Utility
Facilities”); and, (iii) stage construction materials and equipment within designated areas on the
Temporary Easement Area as may be approved by the Town. The form of Temporary License
Agreement is attached as EXHIBIT D: FORM OF LICENSE AGREEMENT.
4. Entry; Site Investigation; Construction Staging; Restoration of Surface. In
conducting the design and construction of the Facilities, including but not limited to surveying,
geotechnical testing, other physical inspection and similar matters, it will be necessary or
desirable for Grantee and/or the Permittees to enter upon and/or cause disturbances to the surface
of the Temporary Easement Area and potentially to the surface of adjacent areas of the FS
Village Parcel. Grantee shall provide not less than five (5) business days’ written notice to
Grantor of any planned entrance upon and/or conduct of physical testing or inspection of the
Temporary Easement Area and/or adjacent areas of the FS Village Parcel. Grantor shall
coordinate with Grantee regarding the scope, nature and duration of such activities, but shall not
unreasonably object to or interfere with Grantee’s and/or Permittees’ conduct of such activities.
To the extent such activities disturb vegetation or otherwise disturb the surface, Grantee shall
promptly cause revegetation and/or otherwise cause restoration of the affected area to a condition
reasonably consistent with its condition prior to Grantee’s and/or Permittees’ conduct of such
activities.
5. Grantor’s Reserved Rights. Grantor reserves the right to grant additional non-exclusive
easement interests within the Temporary Easement Area and the FS Village Parcel so long as
such interests do not adversely affect, increase the cost of, or otherwise interfere with Grantee’s
C-4
1001679.22 FINAL1044033.5
or Permittees’ full exercise of Grantee’s rights in this Easement Agreement, including but not
limited to the rights set forth in the Temporary Easement and the Temporary License Agreement.
Grantor reserves the right to use and occupy the FS Village Parcel and the Temporary Easement
Area for any and all purposes not inconsistent with the rights and privileges granted herein,
including the grant and conveyance of such conservation easements or other real property
interests in and to the FS Village Parcel and the Temporary Easement Area so long as all such
interests and conveyances are made expressly subject and subordinate to Grantee’s rights under
this Easement Agreement.
6. Title Matters; No Warranties. This Easement Agreement is subject to all prior
easements, restrictions, reservations, rights-of-way, encumbrances and similar matters of record
as of the Effective Date. Grantor makes no representations or warranties regarding the status of
title to the FS Village Parcel or the Temporary Easement Area as of the Effective Date, and the
grant of easements and other rights pursuant to this Easement Agreement is in the nature of a
bargain and sale conveyance. Except with Grantee’s prior written consent, all matters affecting
title to the FS Village Parcel and the Temporary Easement Area after the Effective Date shall be
subordinate to the terms and conditions of this Easement Agreement.
7. Covenants. Each and every benefit and burden of this Easement Agreement shall inure
to and be binding upon Grantor, Grantee and their respective successors and assigns. The
burdens and benefits hereof shall run with title to the FS Village Parcel and the Temporary
Easement Area, and shall run with title to Planning Area I. Any person or entity that acquires
any interest in the FS Village Parcel and/or the Temporary Easement Area, and any person or
entity that acquires any interest in Planning Area I, shall be bound by the burdens and entitled to
the benefits of this Easement Agreement. The burdens and benefits of this Easement Agreement
constitute covenants that run with and encumber title to the FS Village Parcel, the Temporary
Easement Area and Planning Area I.
8. Assignment. To the extent Traer Creek Metropolitan District or another District (as
defined in the Development Agreement) undertakes to construct all or part of the Facilities
pursuant to Section 3.2(a) of the Development Agreement, Grantee shall have the right to assign
to Traer Creek Metropolitan District or such other District (in whole or in part) its rights and
obligations arising pursuant to this Easement Agreement.
9. Legal Fees and Costs. The prevailing party in any legal action with respect to this
Easement Agreement shall be awarded it reasonable costs and attorneys'attorneys ’ fees incurred
with respect thereto.
10. Counterparts. This Easement Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
C-5
1001679.22 FINAL1044033.5
IN WITNESS WHEREOF, Grantor and Grantee have executed this Easement Agreement
as of the date first written above.
GRANTOR: TOWN OF AVON, a home rule municipal corporation of the State of Colorado
By:___________________________ Attest:______________________________
Rich Carroll, Mayor Patty McKenny, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of
_______________, 2013, by Rich Carroll, as Mayor of the TOWN OF AVON, a home rule
municipal corporation of the State of Colorado.
Witness my hand
and official seal. ____________________________________
Notary Public
My commission expires: ______________________________.
GRANTEE: EMD LIMITED LIABILITY COMPANY, a Colorado limited liability company
By: Lava Corporation, a Colorado corporation, its Manager
By:
Name: Michael Lindholm
Title: President
STATE OF COLORADO )
) ss.
COUNTY OF __________ )
The foregoing instrument was acknowledged before me this _________ day of
______________________, 2013 by Michael Lindholm, President of Lava Corporation, a
Colorado corporation, as Manager of EMD LIMITED LIABILITY COMPANY, a Colorado
limited liability company.
Witness my hand
and official seal.___________________________________
Notary Public
My commission expires:
C-6
1001679.22 FINAL1044033.5
EXHIBIT A
LEGAL DESCRIPTION OF THE FS VILLAGE PARCEL
Sixth Principal Meridian, Colorado
T. 5 S. R. 81 W.,
sec. 8, lots 1 and 2
C-7
1001679.22 FINAL1044033.5
EXHIBIT B
LEGAL DESCRIPTION OF PLANNING AREA I
Planning Area I is that portion of the following legal description which is depicted on the PUD
Master Plan and designated as Planning Area I.
C-8
1001679.22 FINAL1044033.5
EXHIBIT C
GRAPHIC DEPICTION OF TEMPORARY EASEMENT AREA
C-9
1001679.22 FINAL1044033.5
EXHIBIT D FORM OF TEMPORARY LICENSE AGREEMENT
AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND
_________________________ FOR THE GRANT OF A TEMPORARY LICENSE TO
INSTALL AND CONSTRUCT A ROAD ON TOWN-OWNED PROPERTY
1. Parties. The parties to this agreement (“Agreement”) are the TOWN OF AVON,
COLORADO, a Colorado home rule municipality (the “Town”) and
___________________________ (the “Licensee”). This Agreement is effective upon
execution by the Licensee and following execution by the Town Manager on the date
indicated below.
2. Recitals and Purpose.
(a) The Town is the owner of certain property located in the Town of Avon, Eagle
County, Colorado, commonly known as the ________________________ (“Town
Property”).
(b) The Licensee desires to encroach upon and occupy the Town Property for the purpose
of installing and constructing certain Roadway Facilities and Utility Facilities
(collectively referred to as “Facilities”) as described in the Covenant and Temporary
Easement Agreement dated _____, (“Easement Agreement”).
(c) The Town and Licensee have agreed to enter into this temporary license agreement
under the terms and conditions as hereinafter specified in this Agreement provided
that nothing in this Agreement shall waive or modify any obligation to seek building
permits, variances, or other approval necessary to meet any obligation imposed by
law. The Licensee remains obligated to apply for and obtain all necessary permits
and approvals, pay all required fees, and comply with all applicable local laws,
including but not limited to any applicable provisions of this Agreement, Exhibit F of
The Village (at Avon) Amended and Restated PUD Guide dated as of____________,
20[__] and recorded in the real property records of Eagle County, Colorado on
_______, 20[__] at Reception No. __________, (“PUD Guide"),”), and the
Consolidated, Amended and Restated Annexation and Development Agreement for
The Village (at Avon) dated as of ____________, 20[__] and recorded in the real
property records of Eagle County, Colorado on__________, 20[__] at Reception No.
_______ (“Development Agreement”).
3. Terms and Conditions.
(a) License Granted. The Town hereby grants to the Licensee a temporary license for the
encroachment and occupation as described in the public improvements agreements
approved by the Town to construct the Facilities; provided, however, that nothing in
this Agreement is intended to waive, alter, modify, or permit any violation of any
local law applicable within the Town of Avon. Except for the encroachment and
occupation of the Facilities, no other encroachment, structure, improvement, vehicle,
C-10
1001679.22 FINAL1044033.5
fence, wall, landscaping, or any other real or personal property shall be erected,
installed, constructed, parked, stored, kept, or maintained in any way or fashion on
the Town Property.
(b) Term and Termination. This Agreement shall continue until the Roadway Facilities are
dedicated to the Town and the applicable portions of the Utility Facilities are
dedicated to the respective utility providers in accordance with the procedures and
timeframes established in the public improvements agreement to construct the
Facilities. Upon dedication and final acceptances of the Facilities this Agreement is
terminated. In the event that the Licensee fails to comply with the construction
timeframe, procedures or other provisions of the public improvements agreement the
Town may elect to provide notice of default in writing to the Licensee. If the Town
has provided such notice of default and Licensee is unable to cure the default within
ninety (90) days after receipt of a notice of default, then Town may terminate this
Agreement. In the event that Licensee has failed to complete the Facilities as
required by the public improvements agreement and the Town has elected to utilize
the financial security to complete the Facilities, then Town may immediately
terminate this Agreement.
(c) Indemnification. The Licensee expressly agrees to, and shall, indemnify and hold
harmless the Town and any of its officers, agents, or employees from any and all
claims, damages, liability, or court awards, including costs and attorney’s fee that are
or may be awarded as a result of any loss, injury or damage sustained or claimed to
have been sustained by anyone, including but not limited to, any person, firm,
partnership, or corporation, in connection with or arising out of any omission or act of
commission by the Licensee or any of its employees, agents, partners, or lessees, in
encroaching upon the Town Property. In particular and without limiting the scope of
the foregoing agreement to indemnify and hold harmless, the Licensee shall
indemnify the Town for all claims, damages, liability, or court awards, including
costs and attorney’s fees that are or may be awarded as a result of any loss, injury or
damage sustained or claimed to have been sustained by anyone, including but not
limited to, any person, firm, partnership, or corporation, in connection with or arising
out of any claim in whole or in part that all or any portion of the Facilities and
encroachment permitted by this Agreement constitutes a dangerous and/or unsafe
condition within a public right-of-way.
(d) Insurance. The Licensee agrees to procure and maintain, at its own cost, a policy or
policies of insurance protecting against injury, damage or loss occurring on the
licensed premises in the minimum amount of $600,000.00 per occurrence. Such
policy or policies shall name the Town as an “additional insured”. However, the
Licensee’s failure to take such steps to insure the premises shall not waive, affect, or
impair any obligation of the Licensee to indemnify or hold the Town harmless in
accordance with this Agreement.
4. Assignment. This Agreement shall not be assigned by the Licensee without the prior written
consent of the Town which may withhold its consent for any reason; provided that the Town
C-11
1001679.22 FINAL1044033.5
encourages the Licensee to inform any purchaser of the Licensee’s property or interests of
the existence of this Agreement and the Town will promptly consider any request by the
Licensee for assignment of this Agreement to such subsequent purchaser.
5. Notices. Any notice required or permitted by this Agreement shall be in writing and shall be
deemed to have been sufficiently given for all purposes if personally served or if sent by
certified mail or registered mail, postage and fees prepaid, addressed to the party to whom
such notice is to be given at the address set forth on the signature page below, or at such
other address as has been previously furnished in writing, to the other party or parties. Such
notice shall be deemed to have been given when deposited in the United States Mail.
6. Integration and Amendment. This Agreement represents the entire agreement between the
parties and there are no oral or collateral agreements or understandings; provided, however,
the Easement Agreement shall remain in effect in accordance with its terms. This Agreement
may be amended only by an instrument in writing signed by the parties. If any other
provision of this Agreement is held invalid or unenforceable, no other provision shall be
affected by such holding, and all of the remaining provisions of this Agreement shall
continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke
any authorization, whether explicit or implied to the continuing use and occupancy of the
Town Property for the Facilities.
7. Governing Law and Venue. This Agreement shall be governed by the laws of the State of
Colorado and venue for any action arising under this agreement shall be in the appropriate
court for Eagle County, Colorado.
8. Waiver of Breach. A waiver by any party to this Agreement of the breach of any term or
provision of this Agreement shall not operate or be construed as a waiver of any subsequent
breach by either party.
9. Binding Effect. This Agreement shall inure to the benefit of, and be binding upon, the
parties, their respective legal representatives, successors, heirs, and assigns; provided,
however, that nothing in this paragraph shall be construed to permit the assignment of this
Agreement except as otherwise expressly authorized herein.
10. Underlying Intent and Scope. It is the intent of this Agreement that the Town shall incur
no cost or expense attributable to or arising from the construction, maintenance, or operation
of the Facilities and encroachment permitted by this Agreement and that, in all instances, the
risk of loss, liability, obligation, damages, and claims associated with the encroachment shall
be borne by the Licensee. This Agreement does not confer upon the Licensee any other
right, permit, license, approval, or consent other than that expressly provided for herein and
this Agreement shall not be construed to waive, modify, amend, or alter the application of
any other federal, state, or local laws, including laws governing zoning, land use, property
maintenance, or nuisance.
C-12
1001679.22 FINAL1044033.5
11. Authority to Bind Party. The undersigned persons represent that they are expressly
authorized to execute this Agreement on behalf of the Parties and to bind their respective
Parties and that the Parties may rely upon such representation of authority.
12. Legal Fees and Costs. The prevailing party in any legal action with respect to this Easement
Agreement shall be awarded it reasonable costs and attorneys’ fees incurred with respect
thereto.
DATED THIS ____________ DAY OF _______________, 20____.
TOWN OF AVON:
By: ________________________________
Town Manger
ATTEST: Approved as to Form:
_________________________________ ________________________
Town Clerk or Deputy Town Clerk For Town Attorney’s Office
LICENSEE:
By: ________________________________
Print Name: _________________________
Address: ___________________________
___________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this ________ day of
____________________, 20____, personally by _______________________________.
___________________________________
Notary Public
(SEAL) Commission expires: ____________________________
D-1
1001679.22 FINAL1044033.5
EXHIBIT D
Prioritized Capital Projects
Prioritized Capital Projects List
Budgetary Cost Estimates
Item Lot 1
East Beaver
Creek Blvd.
Lot 1
Main Street
Lot 1
North/South
Roads (2)
Planning Area J
(east) East/West
Road
General
Conditions
750,000 715,000 560,000 280,000
Demolition 39,825 1,726,900 166,650 266,675
Earthwork 1,108,275 119,685 123,390 187,440
Roadway 1,630,990 1,349,930 393,310 719,465
Utilities 894,300 1,129,900 227,600 356,800
Erosion Control 27,000 27,000 16,600 9,500
Landscaping 340,238 311,890 128,800 180,050
Electrical &
Lighting
347,280 289,400 115,760 185,216
Roundabouts 000 2,000,000 000 000
Subtotal 5,137,908 7,669,705 1,732,110 2,185,146
20% Contingency 1,027,582 1,533,941 346,422 437,029
Total 6,200,000 9,200,000 2,100,000 2,600,000
E-1
1001679.22 FINAL1044033.5
EXHIBIT E
Schedule of Past Developer Advances and Avon Receivable
Priority of Repayment Contract
Date Repayment
Party Principal
Amount
Accrued
Interest Total2
Developer Advances
Amended and Restated Funding and Reimbursement Agreement1 05/08/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
Facilities Acquisition Agreement3 05/29/2002 See Note 3 below 4,029,786 2,193,749 6,223,535
2003 Funding and Reimbursement Agreement, as amended 03/25/2004 Traer Creek LLC 2,560,673 1,672,846 4,233,519
2006 Operation Funding Agreement 01/26/2006 Traer Creek LLC 576,310 249,048 825,358
2007 Operation Funding Agreement 11/30/2006 Traer Creek LLC 841,980 335,769 1,177,749
2008 Operation Funding Agreement 12/14/2007 Traer Creek LLC 279,116 88,079 367,195
2009 Operations Advance 12/14/2007 Traer Creek LLC 87,694 15,161 102,855
2010 Operations Advance 12/14/2007 Traer Creek LLC 122,743 10,188 132,931
2011 Operations Advance 12/14/2007 Traer Creek LLC 72,682 - 72,682
Total Developer advances
12,047,736 7,022,299 19,070,035
Avon Receivable
2008 Avon Receivable
various see
attached Town of Avon 482,642 - 482,642
2009 Avon Receivable
various see
attached Town of Avon 1,064,062 - 1,064,062
2010 Avon Receivable
various see
attached Town of Avon 1,126,649 - 1,126,649
2011 Avon Receivable
various see
attached Town of Avon 848,956 - 848,956
Total Avon receivable 3,522,309 - 3,522,309
Grand Total $ 15,570,045 $ 7,022,299 $ 22,592,344
1The net credit for amounts owed to the District by the Developer for Cable TV Filing 1; Utilities Filing 3; and the Parking Structure (645k) with
accumulated interest that were in excess of the additional developer advances not captured above for the Dirt Removal Agreement ($417k) was applied
against the accrued interest for the Amended and Restated Funding and Reimbursement Agreement 2All totals are as of December 31, 2011.
3The District'sDistrict’s records reflect that the amount outstanding under the Facilities
Acquisition Agreement are as follows:
Traer Creek-RP LLC $ 2,440,000 $ 1,328,296 $ 3,768,296
Buffalo Ridge Affordable Housing Corporation, Buffalo Ridge II, LLLP 1,589,786 865,453 2,455,239
Total amount outstanding at December 31, 2011 $ 4,029,786 $ 2,193,749 $ 6,223,535
Repayment of amounts due under the Facilities Acquisition Agreement will be allocated equally (on a pari passu basis) as funds are available after
reimbursement to Traer Creek LLC under the Amended and Restated Funding and Reimbursement Agreement dated May 8, 2002, as amended.
E-2
1001679.22 FINAL1044033.5
Priority of Repayment
Date
Obligation
Was
Incurred Repayment
Party Principal
Amount
Accrued
Interest Total 2
2002 Funding and Reimbursement Agreement 5/7/2002 Traer Creek LLC $ 3,476,752 $ 2,457,459 $ 5,934,211
2003 Funding and Reimbursement Agreement 9/17/2003 Traer Creek LLC 860,673 1,672,846 2,533,519
2003 Funding and Reimbursement Agreement 10/22/2003 Traer Creek LLC 500,000 - 500,000
2003 Funding and Reimbursement Agreement 11/30/2003 Traer Creek LLC 950,000 - 950,000
2003 Funding and Reimbursement Agreement 1/19/2004 Traer Creek LLC 250,000 - 250,000
Facilities Acquisition Agreement 3 3/10/2005 Traer Creek-RP LLC /
Buffalo Ridge 4,029,786 2,193,749 6,223,535
2006 Operation Funding Agreement 4/18/2006 Traer Creek LLC
45,016 249,048 294,064
2006 Operation Funding Agreement 5/24/2006 Traer Creek LLC
227,197 - 227,197
2006 Operation Funding Agreement 8/9/2006 Traer Creek LLC
69,255 - 69,255
2006 Operation Funding Agreement 9/1/2006 Traer Creek LLC
66,832 - 66,832
2006 Operation Funding Agreement 9/19/2006 Traer Creek LLC
5,842 - 5,842
2006 Operation Funding Agreement 10/19/2006 Traer Creek LLC
30,922 - 30,922
2006 Operation Funding Agreement 11/22/2006 Traer Creek LLC
80,195 - 80,195
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC
15,505 - 15,505
2006 Operation Funding Agreement 1/8/2007 Traer Creek LLC
8,938 - 8,938
2006 Operation Funding Agreement 1/17/2007 Traer Creek LLC
26,608 - 26,608
2007 Operation Funding Agreement 7/20/2007 Traer Creek LLC
79,980 335,769 415,749
2007 Operation Funding Agreement 8/17/2007 Traer Creek LLC
165,980 - 165,980
2007 Operation Funding Agreement 10/3/2007 Traer Creek LLC
151,980 - 151,980
2007 Operation Funding Agreement 10/30/2007 Traer Creek LLC
152,000 - 152,000
2007 Operation Funding Agreement 12/14/2007 Traer Creek LLC
292,040 - 292,040
2008 Operation Funding Agreement 1/31/2008 Traer Creek LLC
13,168 88,079 101,247
2008 Operation Funding Agreement 2/28/2008 Traer Creek LLC
12,500 - 12,500
2008 Operation Funding Agreement 3/31/2008 Traer Creek LLC
12,500 - 12,500
2008 Operation Funding Agreement 4/30/2008 Traer Creek LLC
30,450 - 30,450
2008 Operation Funding Agreement 5/31/2008 Traer Creek LLC
30,450 - 30,450
2008 Operation Funding Agreement 6/30/2008 Traer Creek LLC
30,450 - 30,450
2008 Operation Funding Agreement 7/31/2008 Traer Creek LLC
30,450 - 30,450
2008 Operation Funding Agreement 8/31/2008 Traer Creek LLC
31,575 - 31,575
2008 Avon Receivable 9/1/2008 Town of Avon EA 46,813 - 46,813
2008 Avon Receivable 9/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 9/1/2008 Town of Avon STSF 37,276 - 37,276
2008 Operation Funding Agreement 9/30/2008 Traer Creek LLC
30,450 - 30,450
2008 Avon Receivable 10/1/2008 Town of Avon EBC 58,206 - 58,206
2008 Avon Receivable 10/1/2008 Town of Avon MS 37,276 - 37,276
2008 Operation Funding Agreement 10/31/2008 Traer Creek LLC
30,450 - 30,450
2008 Avon Receivable 11/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 11/1/2008 Town of Avon STSF 39,276 - 39,276
2008 Operation Funding Agreement 11/30/2008 Traer Creek LLC
12,500 - 12,500
2008 Avon Receivable 12/1/2008 Town of Avon EBC 49,901 - 49,901
2008 Avon Receivable 12/1/2008 Town of Avon MS 58,206 - 58,206
2008 Avon Receivable 12/1/2008 Town of Avon STSF 39,276 - 39,276
2008 Operation Funding Agreement 12/31/2008 Traer Creek LLC
14,173 - 14,173
2009 Avon Receivable 1/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 1/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 2/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 2/1/2009 Town of Avon STSF 39,276 - 39,276
E-3
1001679.22 FINAL1044033.5
Priority of Repayment
Date
Obligation
Was
Incurred Repayment
Party Principal
Amount
Accrued
Interest Total 2
2009 Avon Receivable 3/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 3/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 4/1/2009 Town of Avon MS 10,920 - 10,920
2009 Avon Receivable 4/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 5/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 5/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 6/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 6/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 7/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 7/1/2009 Town of Avon STSF 39,276 - 39,276
2009 Avon Receivable 8/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 8/1/2009 Town of Avon STSF 186,467 - 186,467
2009 Avon Receivable 9/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 9/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 9/1/2009 Town of Avon EBC 48,897 - 48,897
2009 Avon Receivable 10/1/2009 Town of Avon MS 48,407 - 48,407
2009 Avon Receivable 10/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 11/1/2009 Town of Avon MS 3,251 - 3,251
2009 Avon Receivable 11/1/2009 Town of Avon STSF 54,098 - 54,098
2009 Avon Receivable 12/1/2009 Town of Avon MS - - -
2009 Avon Receivable 12/1/2009 Town of Avon STSF 54,099 - 54,099
2009 Operations Advance 12/31/2009 Traer Creek LLC
87,694 15,161 102,855
2010 Avon Receivable 1/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 1/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 2/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 2/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 3/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 3/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 4/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 4/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 5/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 5/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 6/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 6/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 7/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 7/1/2010 Town of Avon STSF 54,098 - 54,098
2010 Avon Receivable 8/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 8/1/2010 Town of Avon STSF 92,181 - 92,181
2010 Avon Receivable 9/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 9/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 10/1/2010 Town of Avon MS 42,204 - 42,204
2010 Avon Receivable 10/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 11/1/2010 Town of Avon MS 8,126 - 8,126
2010 Avon Receivable 11/1/2010 Town of Avon STSF 56,403 - 56,403
2010 Avon Receivable 12/1/2010 Town of Avon MS - - -
2010 Avon Receivable 12/1/2010 Town of Avon STSF 56,407 - 56,407
2010 Operations Advance 12/31/2010 Traer Creek LLC
122,743 10,188 132,931
2011 Avon Receivable 1/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 1/1/2011 Town of Avon STSF 56,403 - 56,403
E-4
1001679.22 FINAL1044033.5
Priority of Repayment
Date
Obligation
Was
Incurred Repayment
Party Principal
Amount
Accrued
Interest Total 2
2011 Avon Receivable 2/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 2/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 3/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 3/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 4/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 4/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 5/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 5/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 6/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 6/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 7/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 7/1/2011 Town of Avon STSF 56,403 - 56,403
2011 Avon Receivable 8/1/2011 Town of Avon MS 29,725 - 29,725
2011 Avon Receivable 8/1/2011 Town of Avon STSF 42,721 - 42,721
2011 Avon Receivable 9/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 9/1/2011 Town of Avon STSF 57,082 - 57,082
2011 Avon Receivable 10/1/2011 Town of Avon MS 29,724 - 29,724
2011 Avon Receivable 10/1/2011 Town of Avon STSF 57,084 - 57,084
2011 Operations Advance 12/31/2011 Traer Creek LLC
72,682 - 72,682
Grand Total
$ 15,570,045 $ 7,022,299 $ 22,592,344
F-1
1001679.22 FINAL1044033.5
EXHIBIT F
Definitions
1. 2013 Bond Reissue means bonds issued by VMDTCMD 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. Accept(ed)/Acceptance means the Town’s acceptance of Dedicated real property interests
and Public Improvements located therein for purposes of ownership and maintenance, consisting
of Preliminary Acceptance followed by Final Acceptance and accomplished in accordance with
the procedures set forth in Section 7.32.100 of the Municipal Code (as in effect from time to
time) as modified and or exempted by the Development Plan; subject, however, to the terms and
conditions of Section 4.2(d) regarding asphalt overlays.
5. Accommodations/Lodging Fee means the Credit PIF imposed pursuant to the PIF
Covenants on accommodations/lodging transactions occurring within the Project which, subject
to application of the Tax Credit, are Taxable Transactions. The Accommodations/Lodging Fee
shall be construed to be part of a Taxable Transaction, and shall be subject to the Town’s tax on
accommodations/lodging transactions.
6. Additional Developer Advances means funds advanced after the Effective Date for
Capital Project Costs by Master Developer, EMD, a Developer Affiliate or another Landowner
to or on behalf of TCMD, VMD or another District (whether the corresponding Capital Projects
are undertaken directly by such District or acquired by such District after construction by the
party entitled to reimbursement for the costs thereof), which advances are subject to
reimbursement by such District utilizing Credit PIF Revenues, together with simple interest at a
rate equal to the Municipal Market Data rate (or, if the foregoing index is no longer published,
then the Bond Buyer Revenue Bond index rate), for a term most closely related to the term of the
particular Additional Developer Advance being made, for Baa investment grade bonds on the
date of such advance plus 375 basis points, and which are secured by such District’s issuance of
an instrument (note, bond, funding/reimbursement agreement or similar form of instrument)
F-2
1001679.22 FINAL1044033.5
evidencing such District’s 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. [Here, 120 and § 6.10 – 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.]
7. Add-On PIF means that portion of the Public Improvement Fees with respect to which
the Tax Credit does not apply or attach. As of the Effective Date, the Add-On PIF consists only
of the Add-On RSF, although the PICs may, in accordance with the PIF Covenants, elect in the
future to impose the Add-On PIF on other types of transactions and/or at a rate in excess of the
Add-On RSF rate required by this Development Agreement.
8. Add-On PIF Revenues means the gross revenues actually collected from imposition of
the Add-On PIF in accordance with the PIF Covenants, which may consist of Add-On RSF
Revenues, Municipal Payments and other revenues derived from imposition of the Add-On PIF
on transactions other than retail sales that are Taxable Transactions or at rates in excess of the
Add-On RSF rate.
9. Add-On RSF means the imposition of the Add-On PIF only to retail sales transactions
that are Taxable Transactions at the rate set forth in Section 6.4(b) and in accordance with the
terms and conditions of the Financing Plan.
10. Add-On RSF Collection Agent means Special District Management Services, Inc., or any
successor entity engaged from time to time, to administer the collection and distribution of the
Add-On RSF Revenues on behalf of the PICs.
11. Add-On RSF Collection Services Agreement(s) means one or more agreements entered
into from time to time by and among the PICs, the Town and the Add-On RSF Collection Agent
providing for the administration, collection and distribution of the Add-On RSF Revenues.
12. Add-On RSF Revenues means the gross revenues actually collected from imposition of
the Add-On RSF in accordance with Section 6.5, a portion of which shall be Municipal Payments
to be remitted to the Town during the 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. 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 annualAnnual 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
F-3
1001679.22 FINAL1044033.5
calendar year after the year in which the Town assumes sole responsibility for all costs of asphalt
overlays in accordance with Section 6.6(b), $950,000 (Nine Hundred Fifty Thousand Dollars)
per year.
14. Annual Base O&M Amount means $460,000 per year for each of calendar years 2013
through 2017, and $450,000 per calendar year for each calendar year thereafter. [Q: to Kutak,
should this definition be limited to the BNP Pledge Period or limited to the 2013 Bond
Repayment Period, or should it remain effective for the Term (of the Development
Agreement)?]
15. Annual Debt Service Obligation has the meaning and is subject to the terms, conditions,
restrictions and requirements set forth in the Pledge Agreement.
16. 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. Approved SSDP(s) means, individually or collectively: (i) the Development Agreement;
(ii) the PUD Guide; and; (iii) Development Applications (if any) that, after the Effective Date,
Town Council approves (or otherwise approved by the Town including, for example, an
administratively approved final plat, an administratively approved amendment to the PUD Guide
or similar previously approved Site Specific Development Plan) and designates as a Site Specific
Development Plan that establishes Vested Property Rights, together with amendments (if any) to
such approved Development Applications.
18. Article refers to a numbered Article of the Development Agreement, unless otherwise
stated.
19. Asphalt Overlay 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. 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
F-4
1001679.22 FINAL1044033.5
shall deposit funds for asphalt overlays of public roads in the Project in accordance with the
terms and conditions set forth in Sections 4.2(d), 5.1(a), 5.2(c), 5.3(a), 6.5(a)(ii) and 6.6.
21. AURA means the Avon Urban Renewal Authority, a body corporate duly organized and
existing as an urban renewal authority under the laws of the State of Colorado.
22. Authority means the Upper Eagle Regional Water Authority, a quasi-municipal
corporation and political subdivision of the State of Colorado, together with any successor water
service provider (whether pursuant to dissolution of the Authority or otherwise).
23. Avon Receivable means TCMD’s past due payment obligation to the Town in the
principal amount of $3,522,309.08 (THREE MILLION, FIVE HUNDRED TWENTY TWO
THOUSAND, THREE HUNDRED NINE DOLLARS AND EIGHT CENTS), together with
interest thereon as provided in Section 6.9(b)(v)(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).
24. 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. 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 BondsProject Financing shall be limited as provided in the Pledge Agreement. Bond
Requirements does not include any such costs which are capitalized and paid with the Net
Proceeds of District Debts.
27. Cap Amounts has the meaning set forth in Section 6.2(b).
28. Capital Projects means: (i) Public Improvements required by the Town as a condition of
approving a Development Application (for example, public streets; wet utilities such as water,
sewer, storm drainage; related grading and landscaping, etc.), and specifically including the
Prioritized Capital Projects; (ii) the Tank Project and (iiiii) 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.
F-5
1001679.22 FINAL1044033.5
29. Capital Project Costs means all costs and expenses incurred in connection with the design
and construction of Capital Projects, including but not limited to design, engineering, surveying,
soils testing, geologic hazard analysis, traffic studies, legal and other professional consultant
fees, and application and permit fees related thereto, but not including, if any, Bond
Requirements or any costs described in the first sentence of the definition of Bond Requirements
which are capitalized and incurred in connection with issuance of District Debts with respect to
such Capital Projects.
30. Commercial PIC means The Village (at Avon) Commercial Public Improvement
Company, a Colorado non-profit corporation.
31. 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. Credit PIF Cap has the meaning set forth in Section 6.2(b).
33. 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. Credit PIF Collection Services Agreement(s) means one or more agreements entered into
from time to time by and among the Credit PIF Collection Agent, the PICs and/or the applicable
District(s) providing for the administration, collection and distribution of the Credit PIF
Revenues.
35. Credit PIF Revenues means the gross revenues actually collected from imposition of the
Credit PIF.
36. Debt Service Coverage Ratio has the meaning assigned to it in the applicable 2013
Reissue Documents.
37. 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. Deferred Amortization has the meaning assigned to it in the applicable 2013 Reissue
Documents.
39. Deferred Fees has the meaning assigned to it in the applicable 2013 Reissue Documents.
F-6
1001679.22 FINAL1044033.5
40. Deferred Reimbursement has the meaning set forth in Section 5.5(b)(iii).
40.41. 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.
41.42. Design Review Board means The Village (at Avon) Design Review Board as appointed
or elected in accordance with the Design Covenant.
42.43. Design Review Guidelines means the sole and exclusive architectural design, landscape
design, urban design and Site design and use standards applicable within the Property as set forth
in The Village (at Avon) Design Review Guidelines with an effective date of March 15, 2011,
together with any amendment(s) the Design Review Board may approve after providing notice
thereof in accordance with Section 3.1, as prepared, approved and promulgated by the Design
Review Board from time to time.
43.44. 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.
44.45. 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.
45.46. 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.
46.47. 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.
47.48. Development Plan means, collectively:
(a) the Development Agreement; and
(b) the PUD Guide.
48.49. 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
F-7
1001679.22 FINAL1044033.5
the purpose of providing services and/or Public Improvements and or other forms of
improvements benefiting all or any portion of the Property.
49.50. District Debts means, collectively, the following financial obligations of the Districts
(and any refunding thereof accomplished in accordance with the Development Agreement), the
full payment of which shall result in expiration of the Term (unless the Town elects to continue
the Tax Credit pursuant to Section 6.1(d)): (i) the principal and Bond Requirements of the
obligations described in subsections (i), (ii), (iii) and (iv) of Section 6.2(b); and (ii) the Deferred
Amortization.
50.51. 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.
51.52. 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.
52.53. Effective Date means the date on which the Development Agreement is Recorded.
53.54. EMD means EMD Limited Liability Company, a Colorado limited liability company.
54.55. Execution Date has the meaning set forth in the initial paragraph of the Development
Agreement.
55.56. 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
56.57. 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
F-8
1001679.22 FINAL1044033.5
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.
57.58. 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.
58.59. Forest Service Village Parcel means that parcel of land located between Planning Areas I
and J which, as of the Execution Date, is owned by the Town.
59.60. Intended Beneficiary(ies) means, as more particularly described in and subject to the
terms and limitations of Section 1.8(b), BNP, Developer Affiliates and Landowners other than
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.
60.61. Landowner(s) means the fee owner of any real property comprising the Property or any
portion thereof.
61.62. Lender(s) means those entities having a security interest in any portion of the Property as
of the Execution Date, which entities have executed a form of consent and subordination to this
Development Agreement that is to be recorded concurrently with this Development Agreement.
62.63. 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 .
63.64. Litigation has the meaning set forth in Recital H.
64.65. 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).
65.66. 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.
66.67. Mixed-Use PIC means The Village (at Avon) Mixed-Use Public Improvement Company,
a Colorado non-profit corporation.
67.68. Municipal Code means the Town’s municipal code as in effect from time to time unless
otherwise stated in the Development Agreement.
68.69. 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)
F-9
1001679.22 FINAL1044033.5
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).
69.70. Municipal Services has the meaning set forth in Section 4.1.
70.71. 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,Tank Project Financing, (a) pursuant to
Section 6.2(b)(ii), $7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND
DOLLARS), and (b) with respect to Deferred Reimbursement amounts payable as Additional
Developer Advances pursuant to Section 5.5(b)(iv)(A), the amount capitalized and counted as
principal against the Credit PIF Cap pursuant to clause (B) of Section 6.2(b)(iv); (ii) for Past
Developer Advances and any Additional Developer Advances (other than Deferred
Reimbursement amounts pursuant to Section 5.5(b)(iv)(A)), the full amount of the advances
made to TCMD, VMD or another District for Capital Project Costs; and (iii) for Supplemental
Bonds issued in the form of obligations other than Additional Developer Advances, the Total
Repayment Cost Comparison amount calculated as follows: (A) if the Total Repayment Cost
Comparison amount is a positive number, the Net Proceeds of such Supplemental Bonds shall be
defined as the amount that is equal to the amount of the proceeds available from such
Supplemental Bonds for payment of Capital Project Costs; and (B) if the Total Repayment Cost
Comparison amount is a negative number, the Net Proceeds of such Supplemental Bonds shall
defined as the amount that is equal to the sum of the amount of bond proceeds available from
such Supplemental Bonds for payment of Capital Project Costs plus the Total Repayment Costs
Comparison amount expressed as a positive number.
71.72. Non-Cap Amounts has the meaning set forth in Section 6.2(c).
73. Non-Credit PIF Revenue Reimbursement means the amount of any Deferred
Reimbursement that, as generally provided in Sections 5.5(b)(iv)(B) and 6.9(c), is not payable
from Credit PIF Revenues and does not count against the Credit PIF Cap.
72.74. 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.
F-10
1001679.22 FINAL1044033.5
73.75. Original Effective Date means October 13, 1998.
74.76. 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).
75.77. 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.
76.78. Party(ies) means, individually or collectively as the context dictates, the Town, TCMD,
VMD and Master Developer.
77.79. 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
78.80. Permitted Uses has the meaning set forth in Section 6.2(a).
79.81. 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.
80.82. 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.
81.83. 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].”
F-11
1001679.22 FINAL1044033.5
82.84. Pledge Agreement means that certain Water Tank BondsProject Financing Pledge
Agreement made and entered into by and among TCMD, VMD and the AuthorityTC-RP, and
having an effective date concurrent with the Effective Date.
83.85. 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.
84.86. Prioritized Capital Projects has the meaning set forth in Section 3.10.
85.87. 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.
86.88. 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.
87.89. Property has the meaning set forth in Recital B.
88.90. 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.
89.91. Public Improvement Agreement(s) means a public improvement agreement (as such term
generally is used in Section 7.32.100 of the Municipal Code (as in effect from time to time),
subject to the 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.
90.92. 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.
91.93. 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.
F-12
1001679.22 FINAL1044033.5
92.94. 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.
93.95. 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.
94.96. 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.
95.97. 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.
96.98. Replacement Bonds means bonds that one or more of the Districts may issue after the
Effective Date for the purpose of extinguishing, replacing, refunding or defeasing all or portions
of the Past Developer Advances which: (i) bear a lower effective interest rate than the effective
interest rate of the Past Developer Advances, (ii) are not secured by (and cannot be paid from)
Credit PIF Revenues; and (iii) unless otherwise agreed to by the Town in writing, do not exceed
a par value of $12.4 million in principal; and (iv) do not result in an increase of, or count against,
the Credit PIF Cap.
97.99. 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.
98.100.Revocable License Agreement means that certain Revocable License Agreement for
Snow Storage executed concurrently with the Effective Date by and among EMD-CM LLC, a
Colorado limited liability company, TC-RP (such entities being assignees of Master Developer’s
rights pursuant to Section 3.7(b)) and the Town, with respect to the rights and obligations of the
parties thereto regarding the use of Planning Area B (i.e., Lot 2, The Second Amended Final Plat,
Amended Final Plat, The Village (at Avon) Filing 1, a Resubdivision of Lot 1 (as Recorded on
the Effective Date)) for snow storage.
99.101.Sanitation District means the Eagle River Water & Sanitation District.
100.102. School Sites Dedication has the meaning set forth in Section 3.7(a).
101.103. Section refers to a numbered section of the Development Agreement, unless
otherwise stated.
102.104. 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,
F-13
1001679.22 FINAL1044033.5
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.
103.105. Settlement Term Sheet has the meaning set forth in Recital H.
104.106. Site has the meaning ascribed to such term in the PUD Guide.
105.107. 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.
106.108. Supplemental Bonds means additional financial obligations of one of more of the
Districts in a cumulative amount up to the portion of the otherwise unfunded portion of the
Credit PIF Cap (including bonds issued by one or more Districts and/or Additional Developer
Advances) issued at any time during the period commencing on the Effective Date and
continuing through and including January 1, 2040: (i) (expressly including, however, and
notwithstanding that such obligations may be incurred after January 1, 2040, Deferred
Reimbursements obligations that are an Additional Developer Advance in accordance with
Section 5.5(b)(iv)(A) and which arise pursuant to clause (2) of Section 5.5(b)(iv)): (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.
107.109. Tank Agreement means that certain Traer Creek Water Storage Tank Agreement
and Second Amended Water Service Agreement having an “Effective Date” (as defined therein)
of December 26, 2012, entered into by and among the Authority, the Town, TCMD, Master
Developer, TC-RP and certain “Limited Parties” (as defined therein).
108.110. Tank Project has the meaning set forth in the Tank Agreement.
109.111. Tank Project BondsFinancing has the meaning set forth in the Tank Agreement,
and is generally described in Section 5.5(b) of the Development Agreement.
110.112. 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).
111.113. 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.
112.114. TC-HD means Traer Creek-HD LLC, a Colorado limited liability company.
F-14
1001679.22 FINAL1044033.5
113.115. TCLLC means Traer Creek LLC, a Colorado limited liability company.
114.116. TCMD means Traer Creek Metropolitan District, a quasi-municipal corporation
and political subdivision of the State of Colorado.
115.117. TC Plaza means Traer Creek Plaza LLC, a Colorado limited liability company.
116.118. TC-RP means Traer Creek-RP LLC, a Colorado limited liability company.
117.119. TC-WMT means Traer Creek-WMT LLC, a Colorado limited liability company.
118.120. Term means the period commencing on the Effective Date and continuing
through and including the date upon which payment in full of all issued and outstanding District
Debts occurs (or the Town has exercised its option to fully fund the Credit PIF Cap pursuant to
Section 6.14(a)); provided, however, the Term shall not be deemed to have expired prior to
January 2, 2040, unless, prior to January 2, 2040: (i) (A) one or more Districts have issued
Supplemental Bonds up to the full amount of the Credit PIF Cap; and (B) all such Supplemental
Bonds and all other District Debts have been fully paid; or (ii) the Town has exercised its option
to fully fund the Credit PIF Cap pursuant to Section 6.14(a).
119.121. 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. 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. 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. [Here, 6 and § 6.10 –
F-15
1001679.22 FINAL1044033.5
bond underwriter will be providing a taxable bond – Town has reserved its position on this
addition to supplement the tax exempt reference rate.]
122.124. 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. Town means the Town of Avon, a home rule municipal corporation of the State of
Colorado.
124.126. Town Council means the Town Council of the Town.
125.127. TRC Interest Rate means, with respect to Supplemental Bonds issued in the form
of obligations other than Additional Developer Advances: (i) if the interest rate is fixed during
the term of such Supplemental Bonds, the stated rate; and (ii) if the interest rate is variable
(subject to the Town’s consent as set forth in Section 6.10), the 30-year average, as of the
issuance/closing date, of the interest rate index used to determine the variable rate on such
Supplemental Bonds as stated in the documents governing the issuance of such Supplemental
Bonds plus any adjustment or spread to such index.
126.128. Vested Property Rights Statute means C.R.S. §§ 24-68-101 et seq. as in effect on
the Original Effective Date.
127.129. Vested Property Rights has the meaning set forth in Section 2.4.
128.130. Vesting Term has the meaning set forth in Section 1.4(a).
129.131. 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. Water Bank has the meaning set forth in Section 3.4(a).
132.134. Water Rights has the meaning set forth in Section 3.4.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Agenda: Village at Avon - Emails and letter in regard to imposing .75 retail sales fee on November 1st, 2013
From: Dan Leary [mailto:DanLeary@traercreek.com]
Sent: Friday, September 20, 2013 12:17 PM
To: Virginia Egger
Cc: Michael Lindholm; Eric Applegate (ericapplegate@gmail.com); Lisa Jacoby (ljacoby@sdmsi.com); 'Ayers, Munsey'
(munsey@ottenjohnson.com)
Subject: PIC and .75
Virginia,
This e-mail is to confirm that I have instructed the PIC to send notice making payment to the Town of Avon .75 add on
fee.
This will become effective on November 1, 2013, again I need to express that this would be revoked in the event
a global settlement
with the town and all other parties involved in our current litigation is not achieved. Any monies collected by the town
prior to a revocation would not be refunded by the town.
Respectfully yours,
Dan Leary
Director
-----Original Message-----
From: Lisa Jacoby [mailto:ljacoby@sdmsi.com]
Sent: Friday, September 20, 2013 12:18 PM
To: Dan Leary
Subject: Implementation of the .75 RSF
Hello Dan - this correspondence shall serve as confirmation that The Village (at Avon) Public Improvement
Company will implement the .75 RSF on November 1, 2013 and that adequate notice and updated forms will be
sent to vendors next week.
Please let me know if you require something further at this time.
Sent from my iPhone
The Village (at Avon)
ADD‐ON RETAIL SALES FEE RETURN
FOR REMITTANCE TO SPECIAL DISTRICT MANAGEMENT SERVICES
as agent for The Village (at Avon) Commercial Public Improvement Company
141 Union Blvd., Suite 150
Lakewood, CO 80228‐1898
PERIOD COVERED ACCOUNT NUMBER
DATE DUE
Taxpayer’s Name:
Address:
Phone:
1. GROSS SALES
AND SERVICE
(TOTAL RECEIPTS MUST BE REPORTED AND ACCOUNTED FOR IN EVERY RETURN INCL. ALL SALES, RENTALS, AND LEASES
AND ALL SERVICES BOTH TAXABLE AND NON‐TAXABLE)
2A. ADD: BAD DEBTS COLLECTED
2B. TOTAL LINES 1 & 2A
3. A. SERVICE SALES NOT SUBJECT TO CREDIT RETAIL SALES FEE (INCLUDED IN ITEM 1 ABOVE)
D
E
D
U
C
T
I
O
N
S
B. SALES TO OTHER LICENSED DEALERS FOR PURPOSES OF TAXABLE RESALE
C. SALES SHIPPED OUT OF CITY AND/OR STATE (INCLUDED IN ITEM 1 ABOVE)
D. BAD DEBTS CHARGED OFF (ON WHICH CREDIT RETAIL SALES FEE HAS BEEN PAID)
E. TRADE‐INS FOR TAXABLE RESALE
F. SALES OF GASOLINE AND CIGARETTES
G. SALES TO GOVERNMENTAL, RELIGIOUS AND CHARITABLE ORGANIZATIONS
H. RETURNED GOODS
I. PRESCRIPTION DRUGS / PROSTHETIC DEVICES
J. OTHER DEDUCTIONS (LIST)
K. OTHER DEDUCTIONS (LIST)
L. TOTAL DEDUCTIONS (TOTAL OF ITEM 3, LINES A THRU K)
4. TOTAL SALES & SERVICE SUBJECT TO ADD‐ON RETAIL SALES FEE (LINE 2B MINUS TOTAL LINE 3)
COMPUTATION OF ADD‐ON RETAIL SALES FEE
5 AMOUNT OF ADD‐ON RETAIL SALES FEE (0.75% OF LINE 4)
6. ADD: EXCESS ADD‐ON RETAIL SALES FEE COLLECTED
7. ADJUSTED ADD‐ON RETAIL SALES FEE: (ADD LINES 5 & 6)
8.
9.
10.
11. TOTAL ADD‐ON RETAIL SALES FEE DUE: (ADD LINES 7 THRU 10)
12. LATE FILING
IF RETURN IS FILED
AFTER DUE DATE THEN
ADD:
PENALTY: 10% (MIN $15)
ANNUAL INTEREST: 18% (0.0493% PER DAY)
13. TOTAL ADD‐ON RETAIL SALES FEE, PENALTY AND INTEREST DUE: (ADD LINES 11 AND 12)
14. ADJUSTMENT PRIOR PERIODS
ATTACH COPY OF OVER OR
UNDERPAYMENT NOTICE
A – ADD:
B – DEDUCT:
15. TOTAL DUE AND PAYABLE:
MAKE CHECK OR MONEY ORDER PAYABLE TO:
SPECIAL DISTRICT MANAGEMENT SERVICES, INC.,
as agent for The Village (at Avon) Commercial Public Improvement Company
MAIL TO: Special District Management Services, Inc.,
141 Union Blvd., Suite 150, Lakewood, CO 80228‐1898
NEW BUSINESS DATE
MO DAY YR 1. If ownership has changed, give date of change and the new owner’s name.
2. If business has been permanently discontinued, give date discontinued.
3. If business location has changed, give new address
DISCONTINUED DATE 4. Records are kept at what address?
MO DAY YR 5. If business is temporarily closed, give dates to be closed.
6. If business is seasonal, give months of operation.
SHOW BELOW CHANGE OF OWNERSHIP AND/OR ADDRESS, ETC. I, hereby certify, under penalty of perjury, that the statements made
herein are to the best of my knowledge true and correct.
BY:
COMPANY:
PHONE:
BUSINESS ADDRESS MAILING ADDRESS TITLE: DATE:
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Asst. Town Manager/Town Clerk
Date: September 19, 2013
Topic: Amendments to Water Tank Agreement
At this time, the “Amendments to the Traer Creek Water Tank Agreement” was included as an
agenda item, however, there were no revised documents available to include in the Town Council
packet.
1 | Page
+
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Patty McKenny, Assistant Town Manager
Date: September 19, 2013
Agenda Topic: Appointment of Town of Avon Board of Director to fill vacancy for the Buffalo Ridge,
Eaglebend and Eaglebend Dowd Affordable Housing Corporation
The Town Council will need to appoint a new director to each of the three housing boards that provide oversight to
several affordable housing projects sponsored by the Town. The Town has been involved for many years with these
three separate Colorado Non Profit Corporations that were formed to acquire property in order to provide
affordable housing facilities for the benefit and on behalf of the Town of Avon and its residents as follows:
EagleBend Affordable Housing Corporation (“EBAHC”) oversees the EagleBend Apartments
Eaglebend Dowd Affordable Housing Corporation (“EBDAHC”) oversees the Kayak Crossing
Apartments
Buffalo Ridge Affordable Housing Corporation (“BRAHC”) oversees the Buffalo Ridge
Apartments
Former Town Manager Larry Brooks served on each of these boards as a Director. At the request of the Buffalo
Ridge Board of Directors, Larry remained on the boards through the closing of the Buffalo Ridge HUD refinance,
which occurred in the last 10 days. The Town Council now should consider appointing a new director to represent
the Town.
Sections 3.2, 3.3 and3.4 of each of the bylaws outline the manner in which vacancies are filled; some highlights from
these sections include the following:
The number of directors shall be from 3 to 7 people as determined by the Board of Directors
Directors are elected or reelected at each annual meeting Each director holds office until the next annual
meeting
Directors must be at least 18 years old but need not be residents of Colorado
There is one difference in that the Buffalo Ridge Bylaws indicate that “one director shall be appointed by the Town of
Avon, and the balance of the board of directors shall be elected or reelected by the board of directors at each annual
meeting, with 15 days advance notice to the Town of Avon of any new director. If the Town of Avon does not object to
any such director within such 15-day period, it shall be deemed to have confirmed the appointment”.
I spoke with Gerry Flynn about this discrepancy and he noted that it has been the intent and practice of each of the
other Boards to appoint an Avon representative as recommended by the Town Council to both the EBAHC and
EBDAHC boards. Currently, Gerry Flynn, Jeff Spanel, Craig Ferraro, Michele Evans, and Larry Brooks serve as directors
on all three boards.
The Town Council could appoint a Council member, Town Manager or community member. If Council wants to
pursue a community member, a public notice inquiry could be advertised. The only qualification identified is that a
director must be at least 18 years old.
This agenda item has been included as an action item, but further direction on how to proceed may also be
appropriate.
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Topic: Budget 2014: Review Proposed Employee Compensation and Benefits Program
Introduction: In March, 2013, all employees of the Town finalized a Culture Statement which sets forth a work
place culture of strong values, high performers and pay for performance. See Attachment A. In addition to the
training being implemented to ensure all employees understand and practice the culture, performance evaluations
(360 reviews) are being implemented January 1st with criteria included to identify “high performers”. An integral
piece of a high performing staff is a market rate of pay, which overtime is achievable at the highest range for any
high performing employee.
2014 Employee Compensation: An Employee Committee made up of the Town Manager and 14 other employees
representing each department met to review the compensation, salary and benefits, provided to Town staff. The
diverse group included a gender mix, representation of single employees and those with dependents, and
employees with different tenures at the Town. This committee reviewed a number of components that makeup
the 2013 compensation and benefits programs. Based upon that work, I am recommending to Council, with the
Committee, in preparing the 2014 Budget, the following salary and benefits are included:
I. Salary (Note 1)
• Adjust salary ranges (minimum and maximum) based upon a Salary Market Survey (last market
adjustment was 2009)
• Implement a Salary Step Program to attract and retain employees and to provide the ability to project
salary costs; awarded based upon 360 Performance Evaluation at anniversary date
• Total Estimated Cost in 2014: $151,551 (3.42%)
• Total Savings in 2013 from staff position reductions and repurposing: $480,000
• Total Estimated Cost in 2015: 2% increase
II. Avon’s Health Plan (Note 2)
• In early 2014, implement a 3 – year Wellness Program; expected outcomes are fewer health claims and
lower premiums; voluntary with participants having a lower employee contribution
• Participate in a Policyholder Risk Assessment and Safety Service Plan to reduce Workers Comp claims
and reduce premium; commences October 2013
• To the greatest extent possible, keep employee contributions at current rate; this is premium
dependent, however, and that estimate will not be available until early October. Over the next two
years, adjust employee contributions to area market levels.
• Evaluate benefits of Colorado Health exchanges
III. Economic Recovery Payment (Note 3)
• This is a one-time payment to those employees who were furloughed during the period of 2009-2012.
• Total Cost: $52,000 – Equal amounts depending on tenure during furlough; maximum individual
payment is $1,000
• Funded from savings in 2013 staff position reductions.
I look forward to your direction at Tuesday’s meeting.
Page 2
Note 1
A Salary Market Survey was completed comparing Avon’s salary ranges to Vail, Breckenridge, and Eagle County
and using WECMRD, Breckenridge and Silverthorne as comparisons for recreation positions. The survey results
were used to make adjustments, where appropriate to the ranges; it is noted that no adjustments in ranges have
been made in the past four years.
Secondly, there has been an analysis of implementing a Salary Step Program that would help align the new culture
statement that embraces the work environment of employing “high performing employees with the “pay for
performance” philosophy. The step structure is targeted to reflect the increasing value of an employee over the
years, provides for retention of the best employees, and provides a fair way to ensure any employee can reach the
top of the pay range when a high performer. Recognizing that full competency can be achieved at different rates,
depending on the decision-making responsibilities of a given position, salary ranges were set into three different
achievement periods:
Non-Supervisory Employees 5 year step program
Mid Supervisory Employees 6 year step program
Department Head Employees 8 year step program
Attachment B shows a sample of the “step plan” for the different position classifications. If this program is
approved and implemented, the estimated cost to fund personnel wages is $151,551 which is a 3.42% increase over
wages in 2013.
• On average there will be a 3% to 6% increase applied to salary based on the new salary range and placing an
employee in the appropriate step for the program.
• A 1.5% performance raise pool budgeted for 2013. There were no increases in 2011 or 2012.
Note 2
The Committee also spent considerable time discussing Avon’s Health Plan with regard to its current medical
coverage and impacts from healthcare reform. In an effort to try to contain health care costs in 2014, the
Committee heard and voiced strong support for implementing a “Wellness Program”. The Committee plans to
explore a workplace wellness program that would fit its culture and employees and also yield results in lowering
premiums and claims. There will be further review and analysis done to determine the cost / benefit of moving in
this direction for 2014. Some of the costs associated with this program include vendor services for risk
assessments and education. Costs would be funded from the Self-Insurance Reserve and/or from premium
savings.
In addition to containing coverage costs, it will remain a goal to contain the employee contribution costs similar to
the amounts in 2013 for 2014; a final decision about this amount would not occur until mid-October as the review of
the renewal information for medical coverage is not made until then.
Note 3
The recommended Economic Recovery Payment provides for a one-time payment to employees who were with
the Town of Avon during the furlough program beginning in 2009 through 2012. This program was implemented in
an effort to help reduce budget impacts caused by the economic downturn experienced nationally and locally.
• A savings of $600,000 in employee salaries was seen during that timeframe.
• This estimated cost of this program is $52,000 and would be awarded in equal increments based on the
employee’s time during the furlough.
ATTACHMENT A
TOWN OF AVON CULTURE STATEMENT:
STRONG VALUES - HIGH PERFORMERS - PAY FOR PERFORMANCE
Pa
g
e
1
As employees of the Town of Avon, our workplace culture focuses on our own behaviors and skills that are
necessary to ensure excellence in providing the public infrastructure and services for the support of private
sector business operations and needs of our citizens and guests to go about their daily lives with ease and
security.
Town of Avon employees know that we work for a monopoly with no competitor businesses offering the same
comprehensive services that we currently provide. We are keenly aware that each function of the Town can be
outsourced to a private sector business or to another governmental agency. It is this “competitive”
awareness, which causes us to be highly efficient and effective in our work and in the expenditure of Town
resources. We are confident that we are the most qualified and cost effective provider of municipal
infrastructure and services.
We maintain our competitive position through a culture of strong values and consistently high performing
employees.
VALUES: I, as a member of the Town of Avon team, fully understand and successfully practice these high
ethical values and behaviors:
Honesty & Accountability – I am known for my candor and directness. I am quick to admit my mistakes.
I am self-disciplined, self-aware and critically reflective for self-improvement. I am truthful, honest,
candid and expect the same from others.
Integrity & Communication – I fully support open and transparent communication of information and
ideas and, therefore, do not rely upon, promote or participate in innuendo, rumors or gossip. I treat
people with respect and act with the utmost integrity in all situations. I honor confidential information
and am disciplined with that privilege. I am a skilled listener so I can better understand and react
appropriately. I am poised in stressful situations.
Courage – I am willing to express my individual opinion, in a respectful and professional manner, even
when it challenges the acceptable norm. I question actions inconsistent with our culture and values. My
ideas and comments are expected to add value to decisions.
Passion – I inspire others with my drive for excellence and exemplify the practice of kindness and
compassion. I care intensely about Avon’s success and readily celebrate gains. I am proud to represent
the “Heart of the Valley” while I strive to be better than I was yesterday.
Judgment – I make wise decisions and can think strategically despite uncertainty. I can state clearly
what I am doing and the benefit of the work. As I gain knowledge and experience, I am granted greater
freedom in decision-making.
Diversity – I embrace and appreciate that each person brings his or her own ideas, experiences, culture,
knowledge, skills and opinions to interactions. I build a stronger organization by engaging this diversity.
I do not discriminate and do not tolerate discriminatory behavior in others.
HIGH PERFORMERS: We employ high performers in every position because we know talented, innovative
high performers accomplish more, make fewer errors, and do not require a plethora of rules and procedures or
layers of approvals to do his or her job exceptionally well. High performers are leaders of the workplace
culture, scrupulously honest and genuinely committed to helping each other to be great. They are respected
and learn from each other. As a high performing employee, I consistently demonstrate:
Collaboration – I am important to the thinking and decision-making process and the work done. I insist
on inclusivity and work hard to break down barriers for the best ideas. I recognize that collaboration
may take more time and brings forth a variety and diversity of ideas and viewpoints, which are needed
to ensure that the right decisions are made. I am given the context in which to work and to participate
in decision-making. I collaborate across departments and have a sense of shared responsibility.
ATTACHMENT A
TOWN OF AVON CULTURE STATEMENT:
STRONG VALUES - HIGH PERFORMERS - PAY FOR PERFORMANCE
Pa
g
e
2
Camaraderie – I am responsible for the enjoyable, friendly, interconnected atmosphere and good-
humored tone of the workplace. I have a key role in ensuring that my peers want to be at work every
day. I am always approachable, polite and well-mannered. I express genuine gratitude to my peers and
others for the work and privileges provided through my employment. I do not create conflict through
my behavior. I know that situations outside of work legitimately influence moods and attitudes, but I
leave these outside impacts at the door. I bring my best energy and spirit into work.
Work Ethic – I accomplish amazing amounts of important work each day. I am known for valuable
results and my colleagues can always rely on me. I am self-motivated and highly disciplined. I am
efficient and productive with sustained top-level work.
Curiosity, Creativity & Innovation – I am an eager learner. I am attentive and can discover practical
solutions to difficult problems. I think in a manner that sees better approaches that prove useful. I take
pride in minimizing complexity and finding ways to simplify processes so the work of the town is
performed without waste.
Selflessness – My ego is not my amigo. I seek what is best for Avon, rather than what is best for my
division or myself. I identify inefficiencies and I promote a more productive workplace. I make time to
help colleagues and see how I can be helpful when and wherever I can. I am responsible for the unity of
our employees and work towards the ultimate success of myself, my co-workers and the Town.
Decision-making Authority & Risk-taking – As I learn my job and invest in my own growth, I am granted
greater freedom to make decisions in the work and manner of work done. I recognize written rules and
procedures, but I am encouraged to make independent decisions. I am pleased to belong to a culture
that is committed to training, contextual understanding and support for measured risk-taking so that
new approaches can be tested. Supervisors articulate and inspire around strategies and expected
results.
PAY FOR PERFORMANCE: We are honest about only employing talented and high performing individuals.
Salary & Development – We foster professional development. We are committed to paying the highest
competitive “top-of-the-range” salary within the first five years of employment. However, employees
understand that unforeseen events can occur and salaries may become tied to these events; this can
affect the rate at which “top-of-the-range” salaries are implemented. Some positions will see greater
financial gains depending on these markets. The market analysis is done on an annual basis.
Retention & Promotion – We only retain employees who we know we would fight to keep, if they were
offered another similar job elsewhere. We understand and support someone leaving Avon for an
opportunity that we could not offer him or her. Promotions into management only happen when there
is a need for a management position and the person being promoted is a superstar in his or her current
position.
As a self–reflecting, dynamic organization, we are committed to continuously reviewing our culture to ensure
that we maintain our strong values, high performance and competitive pay.
STRONG VALUES - HIGH PERFORMERS - PAY FOR PERFORMANCE
Salary Ranges set for level of decision making authority
TOTAL CALCULATED COST OF IMPLEMENTATION: $151,551 or 3.42%
Current Salary Entry Level Step 1 Step 2 Step 3 Step 4 Step 5 Step 6 Step 7 Step 8
NON SUPERVISORY
Range 30%39,700 39,700 40,900 42,600 45,300 48,900 51,700
MID SUPERVISORY
FLSA EXEMPT 68,000 70,300 72,200 74,500 77,900 81,800 83,900 91,100
Range 30%
DEPARTMENT HEAD
FLSA EXEMPT 72,300 68,100 70,200 72,000 75,100 78,100 81,100 84,400 87,900 91,700
Range 35%
- Reduce Gap between demographic characteristics of the staff: Employee Contribution
CONTINUING ANALYSIS OF BENEFITS IN 2014
- Tiered Medical Benefits Plan
- Opportunities with Colorado Health Insurance Exchange
- Flexible Employee Retirement Contributions
- Evaluate a Cafeteria Benefits Plan
- Evaluate to implement HRA/HSA Choice Deductible
Market Survey: Avon, Vail, Breckenridge, Eagle County (2013)
-------------------------------------------SALARY MARKET RANGE-----------------------------------------------------------
ATTACHMENT B
SALARY STEP PLAN - IMPLEMENTATION 2014
At Evaluation Date: Increase 3% - 6%
If not at Entry Level, the employee is brought up to the Entry Level salary
BENEFITS - 2014
- Implement 3-year Wellness Program/Premium Program
- Priority is no change to Employee Contribution in 2014; premium dependent
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Virginia Egger, Town Manager
Date: September 19, 2013
Topic: Budget Work Session 2014: Town Attorney and Special Counsel Budgets
This Budget Work Session will review Town Attorney, Town Prosecutor and Special Counsel legal services for direction
from Council in terms of budgeting services in 2014. Included with this report is each attorney’s legal services
agreement, which will be scheduled for Council approval at the November 26, 2013 Council meeting, following
approval of the budget, unless directed otherwise.
Based upon the information in this packet, I recommend the following amounts be targeted, with final amounts being
determined in the final budget to be presented to Council on October 16th:
Town Prosecutor: $18,000
Town Attorney: $150,000
Special Water Counsel: $45,000
Other Counsel: $5,000
SUMMARY OF LEGAL SERVICES
BUDGET AND EXPENDITURES
2013
Budget
Total
Expended
Through
7/31/13
Estimated
12/31/13
General
Heil Law & Planning LLC $135,000 $54,253 $93,005
Heizer Paul LLP
$0
Sherman and Howard $9,540 $9,540
Subtotal $135,000 $63,793 $102,545
Village at Avon Litigation
Heizer Paul LLP
$5,136
Hayes, Phillips, Hoffman & Carberry
$762
Heil Law & Planning LLC $86,415 $148,140 Sherman & Howard $347 Subtotal $115,000 $92,659 $148,140
Municipal Court
Elizabeth Pierce-Durance $18,500 $8,316 $16,536
Water Fund
Moses, Wittemyer, Harrison
$25,000.00
11,784.30 $15,000
Wyndham
Heil Law & Planning LLC $ -
4,752.00 $6,789
TOTAL TOWN ATTORNEY &
SPECIAL COUNSEL $293,500 $181,304 $289,010
Page 2
SUMMARY OF LEGAL SERVICES
Town Prosecutor: Elizabeth Pierce-Durance, LLC (Agreement for Legal Services)
Elizabeth Pierce-Durance began working as the Town’s prosecutor in 2007.
Her primary role as prosecutor includes assessing and prosecuting criminal and civil cases brought before the
Avon Municipal Court. In addition she has assisted the Avon Police Department on some police matters and
training, as well as the Town Attorney with research related to code amendments.
Ms. Pierce-Durance has not had an Agreement for Legal Services, but rather has been working under a terms
sheet.
The recommendation is to execute and Agreement for Legal Services (attached) at a rate of $125.00/hour – an
increase from her 2007-2013 hourly rate of $115. Attorney Eric Heil has reviewed the Agreement. The town
may terminate the services at any time. The Town Prosecutor should report to the Town Attorney.
The budget for prosecutorial services is included in the Municipal Court Program and has been set at $18,500
per year for the past four years; year-to-date expenditures have been averaging 80% of budget during that
timeframe
Town Attorney: Heil Law and Planning LLC (Agreement for Legal Services)
Eric Heil began working as the Town Attorney in 2008
His primary role per the Charter Section 10.2 is to serve the Town Council and be the legal representative of
the Town and advise on matters relating to their official powers and duties
Mr. Heil’s Town Attorney budget letter is attached, including his Agreement. His hourly rate would continue
to be $180/hour.
The 2013 budget for general legal services is $135,000. Expenditures for these services and Village at Avon
Litigation are estimated by years end total $241,000. No Village legal fees were budgeted.
Eric has requested $150,000 be budgeted in 2013.
Special Counsel:
Water Attorney Moses, Wittemyer, Harrison and Woodruff, P.C. (Letter of Engagement)
See Agenda Item 4.1 for Letter of Agreement
In 2013, $25,000 was budgeted for these services; it is estimated $15,000 will be expended
The 2014 budget appropriation is estimated to be $45,000 for special Water Authority Master Agreement
negotiations in 2014
Other Special Counsel
From time-to-time other special counsel is retained for Town of Avon needs. It is recommended
$5,000 be budgeted in 2014 for unforeseen needs.
AGREEMENT FOR LEGAL SERVICES OF CLIENT ATTORNEY
1. Parties. This is a contract for legal services between the law firm of Elizabeth
Pierce-Durance, LLC, (the “Law Firm”) and the Town of Avon (“Client”).
2. Scope of Legal Services. As directed by the Client, the Law Firm shall provide
prosecutorial services to the Client, which shall include assessing and
prosecuting criminal and civil cases brought before the Avon Municipal Court and
providing all necessary ancillary services thereto. Elizabeth Pierce-Durance shall
serve as the principal attorney providing the services.
3. License and Malpractice Insurance. The Law Firm agrees to maintain at all times
its license to practice law in the State of Colorado. Law Firm shall promptly
inform Client if there is any change in the good standing status of the license to
practice law in the State of Colorado. Law Firm shall maintain professional
malpractice insurance in the minimum amount of five hundred thousand dollars
($500,000.00) per occurrence in a form and with such terms as are acceptable to
the Client.
4. Compensation. The Client shall pay the Law Firm compensation for services
rendered in the amount of $125/hour.
A. Costs. The Client shall compensate the Law Firm for out-of-pocket fees
and costs incurred on the Client’s behalf, including but not limited to filing
fees, service of process, expert witness fees, court reporter fees,
transcript fees, messenger fees, computer research, recording fees, title
company fees. Such fees will be billed to the Client at the Law Firm’s
cost without mark-up. The Client shall compensate the Law Firm for
mileage expenses for personal use of private vehicles used by the Law
Firm’s attorneys incurred in the direct and exclusive performance of
services for the Client. Mileage shall be charged at the reimbursement
rate set by the Internal Revenue Service.
B. Estimated Charges. The Law Firm may give the Client an estimate of the
anticipated total cost of a particular matter. The actual charges may vary
from the estimate due to unforeseen complexities or difficulties. The
estimate is not firm and is not binding on either the Client or the Law Firm.
C. Billing; Payment; Late Payment Charge. The Law Firm shall provide to
the Client a detailed invoice for all legal services on a monthly basis.
Such billings shall separate work and fees associated with specific
projects for which the Client accounts separately. The Client shall pay all
billings from the Law Firm within thirty (30) days of receipt of invoice. Any
amounts not paid within thirty (30) days of the date of the bill shall be
subject to interest at the rate of 1-1/2% per month (18% per year,
compounded monthly). If the Client fails to pay any charges within 30
days of the date of the bill the Law Firm may elect to stop all work for the
Client. The Client’s obligation to make prompt payment of all charges
does not depend upon achievement of any specific result.
5. Client. The Client grants to the Law Firm the power to execute documents
connected with prosecutorial services, including pleadings and settlement
documents. The Law Firm shall be authorized to represent the Client in all
matters appearing before the Avon Municipal Court, including appeals taken from
that court into any other.
6. Term and Termination. This Agreement shall be effective upon approval by the
Client and Law Firm and shall terminate upon written notice by either party.
Termination by either party may occur at any time without cause or reason. The
Law Firm shall use best efforts to provide a minimum of thirty (30) days notice of
termination of representation of the Client. If the Client discharges the Law Firm,
the Client shall pay all fees and costs incurred to the date of termination, and the
Law Firm shall promptly deliver all files and documents of the Client to the Client.
7. Arbitration. Although the parties do not expect that any dispute between them
will arise, in the unlikely event of any dispute under this Agreement, including a
dispute regarding the amount of legal fees or costs owed to the Law Firm or the
quality of the Law Firm’s services, including any claim of malpractice, such
dispute shall be subject to binding arbitration. The Client and Law Firm
acknowledge that they are waiving their right to seek remedies in court, including
the right to a jury trial. (This clause does not prevent the Client and the Law Firm
from trying to resolve any dispute through voluntary mediation, but there is no
requirement to do so.)
Any dispute concerning fees or costs shall be submitted to the Legal Fee
Arbitration Committee of the Denver Bar Association and the decision of the
Committee shall be final and binding on both parties. Any dispute concerning the
quality of the Law Firm’s services, including malpractice claims, shall be
submitted to a single arbitrator and the decision of the arbitrator shall be final and
binding on both parties. A final judgment can be entered on the arbitration award
by a court of competent jurisdiction. The arbitrator shall be selected from the
Judicial Arbiter Group, Denver, Colorado unless the parties agree otherwise. If
the parties do not agree on the selection of a single arbitrator within ten days
after a demand for arbitration is made, then the arbitrator shall be selected by the
Judicial Arbiter Group from among its available professionals.
All arbitrations shall be held in Denver, Colorado unless the parties mutually
agree on some other location. All arbitrations shall proceed under the
Commercial Arbitration Rules of the American Arbitration Association, except as
modified in this Agreement, unless otherwise agreed by the parties. The
arbitrator shall have the discretion to order that the costs of arbitration, fees
(including expert witness and reasonable attorney fees), and other costs shall be
borne by the losing party. Any filing fees or other administrative costs of
arbitration shall be divided equally between the Client and the Law Firm.
Arbitration of all disputes, and the outcome of the arbitration, shall remain
confidential between the parties.
8. Document Retention. Files maintained by the Law Firm as the result of
performance of services for the Client pursuant to this Agreement shall be the
property of the Client, and upon termination of this Agreement, shall be delivered
to the Client.
THE LAW FIRM AND THE CLIENT HAVE READ THIS DOCUMENT, UNDERSTAND
IT, AND AGREE TO IT.
Elizabeth Pierce-Durance LLC Town of Avon, Colorado
By:__________________________ By:__________________________
Date:________________________
TO: AVON TOWN COUNCIL
FROM: ELIZABETH PIERCE-DURANCE, LLC
RE: PROPOSED PROSECUTORIAL SERVICES FOR MUNICIPAL COURT
DATE: SEPTEMBER 17, 2013
Prosecutorial Services
I have served as Town of Avon prosecutor for eight years. Services provided include the
following:
Assessment, disposition, and prosecution of criminal and civil Municipal Code violations, as well
as traffic violations. This typically involves obtaining discovery from relevant law enforcement
agencies - e.g., Avon Police Department, Vail Police Department, Eagle County Sheriff's Office,
Eagle County Animal Control Services; evaluating the prosecutorial viability of each case;
requesting and obtaining supplemental reports as needed; reviewing or obtaining
victim/witness statements; ensuring proper case filing with appropriate charges; ensuring that
cases are timely set for trial with necessary subpoenas issued and served; preparing witnesses
and exhibits for trial; responding to defendant discovery requests and other relevant inquiries;
working with victims on restitution claims; conducting pre-trial conferences and dispositional
hearings twice a month, including sentencing recommendations; conducting motions hearings
as needed; conducting bench and jury trials as needed; and handling appeals.
In addition to these core services, I work with Avon Police to identify appropriate charges as
needed; offer police training as requested; and work with the Town Attorney as needed to
identify and develop amendments to the Avon Town Code, including the update of criminal
provisions. I attend Municipal Prosecutor Continuing Legal Education classes on occasion.
Violations prosecuted under the Municipal Code include criminal charges such as assault and
battery, larceny, disorderly conduct, and civil infractions such as Development Code violations.
A criminal conviction may result in a fine of up to $1000 and/or jail for up to one year. Civil
infractions permit fines of up to $1000/day for continuing violations.
Avon Municipal Court processed 1527 cases in 2012, involving 11 trials to the court and 621
penalty assessments. The court has processed 933 cases so far this year, with one trial to the
bench and 351 penalty assessments.
Budgetary Impact
The Town of Avon currently pays an hourly rate of $115/year for its basic prosecutorial service,
which rate is below neighboring communities. Vail, Basalt, Minturn, and Eagle each pay
$125/hour for prosecutorial services. On that basis, this proposal is to increase the hourly rate
of pay for prosecutorial services to $125.
Previous budgets for these services have been set not to exceed $18,500, which continues to be
a realistic limit. The program has come in, on average, $4048 under budget since 2009, with
the following amounts having been paid: $16,973 in 2009; $11,565 in 2010; $15,654 in 2011;
and $13,617 in 2012. The Town has paid $11,708.50 for prosecutorial services through
September 17, 2013, an average of $1378/month.
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: Town Attorney Budget
DATE: September 19, 2013
Summary: This memorandum provides an explanation of the proposed Town Attorney budget for 2014.
Attached to an updated fee agreement. The Town Attorney review is sent as a separate confidential
document because it contained comments related to pending litigation matters. Last year Council
approved an increase in the hourly fee from $169.50 per hour to $180 per hour. I am not proposing to raise
my rates for 2014.
Proposed Budget: The proposed budget for Town Attorney for 2014 is $150,000. I believe this amount is
similar to legal budgets for similar sized communities in Colorado mountain resort areas. This amount does
not include Development Application Pass-Through account. This amount would cover the routine matters
(attending meetings, reviewing contracts, reviewing and/or drafting documents, monitoring any matters
represented by CIRSA), and assisting with the strategic work plan as directed.
The annual legal budget for general legal services can be difficult to predict. Approximately 20% is
predictable with respect to attendance at meetings and routine review of general matters (liquor license
applications, Real Estate Transfer Tax exemption applications, etc.). The proposed 2014 Strategic Work
Plan has several items that will involve legal review. Typically, it seems matters consistently arise outside
of the Work Plan that require legal review or advice, which is part of general counsel work for the Town of
Avon as an organization.
Thank you, Eric
M EMORANDUM
& PLANNING, LLC
AGREEMENT FOR LEGAL SERVICES FOR TOWN OF AVON
1. Parties. This is a contract for legal services between the law firm of Heil
Law and Planning, LLC, a limited liability company, (the “Law Firm”) and the
Avon Town Council of the Town of Avon, Colorado (“Client”) dated
_____________, 2013.
2. Scope of Legal Services. As directed by the Client, the Law Firm shall provide
legal services to the Client with regard to serving as the Town Attorney for the
Town of Avon, Colorado in accordance with the Town’s Home Rule Charter and
responsibilities stated in the Avon Municipal Code and as otherwise directed by
the Client. Mr. Eric J. Heil, Esq. shall serve as the principal attorney representing
the Client.
3. License and Malpractice Insurance. The Law Firm agrees to maintain at all times
its license to practice law in the State of Colorado. Law Firm shall promptly
inform Client if there is any change in the good standing status of the license to
practice law in the State of Colorado. Law Firm shall maintain professional
malpractice insurance in the minimum amount of one million dollars
($1,000,000.00) per occurrence in a form and with such terms as are acceptable
to the Client.
4. Compensation. The Client shall pay the Law Firm compensation for services
rendered. The Law Firm charges an hourly rate for Eric J. Heil, Esq. of one
hundred eighty dollars ($180.00) and two hundred forty dollars ($240.00) for
review of development applications which costs are paid by the development
applicant in accordance with the Avon Development Code. The Law Firm agrees
that it shall not increase its hourly rate prior to January 1, 2015 and shall provide
at least four (4) months prior written notice of any increase in the hourly rate.
A. Costs. The Client shall compensate the Law Firm for out-of-pocket fees
and costs incurred on the Client’s behalf, including but not limited to filing
fees, service of process, expert witness fees, court reporter fees,
transcript fees, messenger fees, computer research, recording fees, title
company fees. Such fees will be billed to the Client at the Law Firm’s
cost without mark-up. The Client shall compensate the Law Firm for
mileage expenses for personal use of private vehicles used by the Law
Firm’s attorneys incurred in the direct and exclusive performance of
services for the Client. Mileage shall be charged at the reimbursement
rate set by the Internal Revenue Service. The Client shall compensate
the Law Firm for one-half of the travel time incurred by the Law Firm’s
attorneys in the direct and exclusive performance of services for the
Client.
B. Estimated Charges. The Law Firm may give the Client an estimate of the
anticipated total cost of a particular matter. The actual charges may vary
from the estimate due to unforeseen complexities or difficulties. The
estimate is not firm and is not binding on either the Client or the Law Firm.
C. Billing; Payment; Late Payment Charge. The Law Firm shall provide to
the Client a detailed invoice for all legal services on a monthly basis.
Such billings shall separate work and fees associated with specific
projects for which the Client accounts separately. The Client shall pay all
billings from the Law Firm within thirty (30) days of receipt of invoice. Any
amounts not paid within thirty (30) days of the date of the bill shall be
subject to interest at the annual rate of 12%. If the Client fails to pay any
charges within thirty (30) days of the date of the bill the Law Firm may
elect to stop all work for the Client. The Client’s obligation to make
prompt payment of all charges does not depend upon achievement of any
specific result.
5. Client. The Client grants to the Law Firm the power to execute documents
connected with the representation of the Client, including pleadings, applications,
protests, contracts, commercial papers, settlement agreements and releases,
dismissals, orders and all other documents and to represent the Client in matters
associated with providing legal services to the Client.
6. Term and Termination. This Agreement shall be effective upon approval by the
Client and Law Firm and shall terminate upon written notice by either party.
Termination by either party may occur at any time without cause or reason. The
Law Firm shall use best efforts to provide a minimum of sixty (60) days notice of
termination of representation of the Client. If the Client discharges the Law Firm,
the Client shall pay all fees and costs incurred to the date of termination, and the
Law Firm shall promptly deliver all files and documents of the Client to the Client.
7. Arbitration. Although the parties do not expect that any dispute between them
will arise, in the unlikely event of any dispute under this Agreement, including a
dispute regarding the amount of legal fees or costs owed to the Law Firm or the
quality of the Law Firm’s services, including any claim of malpractice, such
dispute shall be subject to binding arbitration. The Client and Law Firm
acknowledge that they are waiving their right to seek remedies in court, including
the right to a jury trial. (This clause does not prevent the Client and the Law Firm
from trying to resolve any dispute through voluntary mediation, but there is no
requirement to do so.)
Any dispute concerning fees or costs shall be submitted to the Legal Fee
Arbitration Committee of the Denver Bar Association and the decision of the
Committee shall be final and binding on both parties. Any dispute concerning the
quality of the Law Firm’s services, including malpractice claims, shall be
submitted to a single arbitrator and the decision of the arbitrator shall be final and
binding on both parties. A final judgment can be entered on the arbitration award
by a court of competent jurisdiction. The arbitrator shall be selected from the
Judicial Arbiter Group, Denver, Colorado unless the parties agree otherwise. If
the parties do not agree on the selection of a single arbitrator within ten days
after a demand for arbitration is made, then the arbitrator shall be selected by the
Judicial Arbiter Group from among its available professionals.
All arbitrations shall be held in Denver, Colorado unless the parties mutually
agree on some other location. All arbitrations shall proceed under the
Commercial Arbitration Rules of the American Arbitration Association, except as
modified in this Agreement, unless otherwise agreed by the parties. The
arbitrator shall have the discretion to order that the costs of arbitration, fees
(including expert witness and reasonable attorney fees), and other costs shall be
borne by the losing party. Any filing fees or other administrative costs of
arbitration shall be divided equally between the Client and the Law Firm.
Arbitration of all disputes, and the outcome of the arbitration, shall remain
confidential between the parties.
8. Document Retention. Files maintained by the Law Firm as the result of
performance of services for the Client pursuant to this Agreement shall be the
property of the Client, and upon termination of this Agreement, shall be delivered
to the Client.
THE LAW FIRM AND THE CLIENT HAVE READ THIS DOCUMENT, UNDERSTAND
IT, AND AGREE TO IT.
HEIL LAW AND PLANNING, LLC. TOWN OF AVON, COLORADO
By:__________________________ By:__________________________
Eric James Heil Rich Carroll, Mayor
2696 S. Colorado Blvd., Ste 550
Denver, CO 80222
(303) 975-6120
eric@heillaw.com
Date:________________________
ATTACHMENT A
PRIVACY POLICY NOTICE
Attorneys, like other professionals, who advise on certain personal matters, are now
required by a new federal law to inform their clients of their policies regarding privacy of
client information. Attorneys have been and continue to be bound by professional
standards of confidentiality that are even more stringent than those required by this new
law. Therefore, please understand that your privacy is important to us and we have
always protected your right to privacy. Maintaining your trust and confidence is a high
priority to this law firm. The purpose of this notice is to comply with the new law by
explaining our longstanding privacy policy with respect to your personal information.
NONPUBLIC PERSONAL INFORMATION WE COLLECT:
In the course of providing our clients with financial advisory activities, including estate
planning, tax planning and tax preparation services (including income tax, estate tax,
and gift tax advice), collecting overdue accounts receivable, and providing real estate
settlement services, we collect personal and financial information about our clients that
is not available to the public and which is provided to us by our clients or obtained by us
with their authorization or consent.
PRIVACY POLICY:
As a current or former client of Heil Law and Planning, LLC, rest assured that all
nonpublic personal information that we receive from you is held in confidence, and is not
released to people outside the firm, except as agreed to by you, or as is permitted or
required by law and applicable ethics rules.
CONFIDENTIALITY AND SECURITY:
We retain records relating to professional services that we provide so that we are better
able to assist you with your professional needs and, in some cases, to comply with
professional guidelines. We restrict access to nonpublic, personal information about you
to those people in the firm who need to know that information to provide services to you
(and their support personnel). In order to guard your nonpublic personal information, we
maintain physical, electronic, and procedural safeguards that comply with our
professional standards as well as federal regulations.
Please call the attorney you work with if you have any questions. Your privacy, our
professional ethics, and the ability to provide you with quality service are very important
to us.
FISCAL YEAR 2013
FINANCIAL REPORT
September 24, 2013
______________________________________________________________________________________
1. Fiscal Year 2013 Financial Report Cover Memo
2. Sales and Accommodations Tax Reports – July
3. Real Estate Transfer Tax Report and Monthly Detail – August
4. General Fund Year-To-Date Expenditures- August
5. Fleet Maintenance Fund Year-To Date Expenditures- August
6. Transit Fund Year-To Date Expenditures- August
TOWN COUNCIL REPORT
To: Honorable Mayor Rich Carroll and Avon Town Council
From: Kelly Huitt, Budget Analyst
Date: September 18, 2013
Re: Fiscal Year 2013 Financial Report – July/August 2013
Revenues:
SALES TAX
Sales tax revenue for the month of July is up $65,264.16 (13.82%) over July 2012, and up 7.91% compared to
the monthly budget. This gain includes approximately $23,000 from new businesses, therefore 8.95% is the
actual gain in revenue for the month. Year to date sales tax collections are up $505,718.79 over 2012 and
$331,731.39 over budget.
July collections report increases from 2012 for all industries except Sporting Goods Rental/Retail which was
down $4,419 for the month. Revenue from Grocery, Specialty, and Health businesses are up approximately
$12,000 for the month compared to last year, Accommodations are up $5,500, and Restaurants are up $7,600.
ACCOMMODATIONS TAX
Accommodations tax revenue for July is up $6,282.19 (9.41%) compared to July 2012, and up 1.20%
compared to the monthly budget. Year-to-date accommodations tax collections are up $118,462.13 over 2012
and $80,180.08 over budget. MTRiP data indicates a 6.0% reduction in occupancy year-over-year for the
month of July, but a 13.7% increase in average daily rate. Occupancy for January-June increased 7.0% when
compared with the same period in 2012. The Average Daily Rate for the same period is up 13.6%.
July accommodations tax collections are up for all accommodation types. Monthly revenue decreased in all
areas of town except for the Riverfront/West River District and Town Center West, which are up $5,449.36
and $2,764.16 respectively.
REAL ESTATE TRANSFER TAX
2013 year-to-date real estate transfer tax collections equal $1,044,881.47, which is 69.66% of the current
budgeted revenues. Collections are down $93,802.81 compared to 2012.
Expenditures:
General Fund expenditures at the end of August are tracking along the budget. At 67% of the way through the
year, expenditures to date are at 55.26% of the budget.
Fleet expenditures to date are at 67.59% of the total budget.
Transit funds are 76.48% spent compared to the annual appropriation. These expenditures include $113,117
in matching funds applied toward the purchase of a new grant funded people mover.
TOWN OF AVON
SALES TAX WORKSHEET
2013 Actual vs. Budget
Budget YTD Collections Budget % of change
2008 2009 2010 2011 2012 2013 2013 Variance from 2012
January 552,981.33$ 552,648.47$ 515,009.18$ 511,040.76$ 519,784.89$ 548,275$ 677,943.78$ 129,669.26$ 30.43%
February 574,301.20 516,349.68 504,752.59 532,903.25 533,546.48 562,790 636,702.27 73,911.89 19.33%
March 653,095.43 536,913.42 620,937.20 665,532.70 643,910.29 679,203 720,267.31 41,064.03 11.86%
April 349,061.05 319,833.51 309,937.09 305,269.73 304,220.84 320,895 307,407.13 (13,488.18) 1.05%
May 321,213.74 267,960.76 242,830.16 236,424.93 270,082.79 284,886 309,938.72 25,052.58 14.76%
June 427,371.70 396,066.29 377,920.42 406,828.27 430,588.57 454,189 490,329.18 36,139.87 13.87%
July 458,484.39 409,956.20 421,975.98 452,873.44 472,215.40 498,098 537,479.66 39,381.94 13.82%
August 428,296.71 374,965.99 361,702.25 419,977.29 455,439.86 480,403
September 466,731.86 350,585.25 359,139.22 391,546.49 424,793.75 448,077
October 365,209.05 286,412.11 288,859.84 299,193.35 341,711.43 360,441
November 338,385.19 281,696.02 284,528.70 301,407.41 336,060.63 354,480
December 794,328.16 786,701.84 818,360.74 921,815.61 852,868.64 899,615
Total 5,729,459.81$ 5,080,089.54$ 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 5,891,352$ 3,680,068.05$ 331,731.39$ 15.93%
Actual Collections
$200,000
$250,000
$300,000
$350,000
$400,000
$450,000
$500,000
$550,000
2009 2010 2011 2012 2013
Year
Sales Tax Collections for July
TOWN OF AVON
SALES TAX WORKSHEET
2013 Actual vs. Budget
$2,500,000
$2,600,000
$2,700,000
$2,800,000
$2,900,000
$3,000,000
$3,100,000
$3,200,000
$3,300,000
$3,400,000
$3,500,000
$3,600,000
$3,700,000
2009 2010 2011 2012 2013
YTD Sales Tax Collections
$200,000
$250,000
$300,000
$350,000
$400,000
$450,000
$500,000
$550,000
$600,000
$650,000
$700,000
$750,000
Sales Tax Monthly Comparison 2010-2013
2010
2011
2012
2013
TOWN OF AVON
ACCOMMODATIONS TAX WORKSHEET
2013 Actual vs. Budget
Budget YTD Collections Budget % of change
2008 2009 2010 2011 2012 2013 2013 Variance 2012
January 77,721.98$ 84,919.00$ 87,938.84$ 85,233.73$ 90,118.88$ 97,438$ 108,508.43$ 11,070.57$ 20.41%
February 83,157.06 83,502.22 99,336.34 114,035.90 106,016.32 114,626 137,503.61 22,877.20 29.70%
March 87,240.86 84,909.85 105,518.15 122,145.16 115,043.42 124,387 153,208.80 28,822.16 33.17%
April 22,161.73 26,821.29 26,496.88 26,214.58 20,786.24 22,474 26,494.49 4,020.10 27.46%
May 16,208.09 19,090.36 12,425.51 15,152.82 16,664.44 18,018 24,527.17 6,509.33 47.18%
June 30,012.07 34,439.33 32,857.68 49,999.66 56,012.17 60,561 66,578.91 6,017.73 18.87%
July 33,302.03 47,864.32 51,170.82 62,928.07 66,726.73 72,146 73,008.92 863.00 9.41%
August 29,326.28 39,155.19 42,188.56 52,037.55 58,358.93 63,099
September 21,214.32 21,134.69 30,090.34 35,521.81 42,245.24 45,676
October 21,856.62 17,043.78 20,614.06 21,801.56 25,879.51 27,981
November 20,737.61 15,268.58 20,582.47 24,971.33 22,786.42 24,637
December 86,199.66 96,847.30 98,561.90 135,984.00 112,759.02 121,917
Total 529,138.31$ 570,995.91$ 627,781.55$ 746,026.17$ 733,397.32$ 792,960$ 589,830.33$ 80,180.08$ 25.13%
Actual Collections
-
5,000.00
10,000.00
15,000.00
20,000.00
25,000.00
30,000.00
35,000.00
40,000.00
45,000.00
50,000.00
55,000.00
60,000.00
65,000.00
70,000.00
75,000.00
2009 2010 2011 2012 2013
Accommodations Tax Collections for July
TOWN OF AVON
REAL ESTATE TRANSFER TAX WORKSHEET
2013 Actual vs. Budget
YTD Collections $ change % of change
2008 2009 2010 2011 2012 2013 2012 2012
January 75,552.20$ 34,468.00$ 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ (27,669.00)$ -55.11%
February 56,655.90 95,703.38 362,719.22 230,705.50 41,750.07 55,872.69 14,122.62 33.83%
March 77,054.50 6,023.70 284,243.65 187,099.47 84,760.49 125,927.64 41,167.15 48.57%
April 69,955.12 92,238.95 210,185.30 249,482.30 219,195.80 144,437.80 (74,758.00) -34.11%
May 66,714.29 37,803.12 112,431.30 187,668.62 270,170.12 121,784.12 (148,386.00) -54.92%
June 105,872.10 365,324.28 66,271.14 49,606.58 169,040.47 90,309.74 (78,730.73) -46.58%
July 60,194.74 208,800.24 63,509.36 46,707.37 71,057.40 386,434.78 315,377.38 443.83%
August 108,981.45 87,827.30 88,823.40 106,785.21 232,505.93 97,579.70 (134,926.23) -58.03%
September 684,005.20 159,877.84 159,861.96 140,876.56 96,389.34
October 711,661.23 205,537.52 222,575.20 64,005.33 176,889.62
November 621,085.67 131,944.57 115,654.16 98,057.44 150,549.86
December 455,288.84 336,431.50 236,117.45 198,448.03 145,134.57
Total 3,093,021.24$ 1,761,980.40$ 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,044,881.47$ (93,802.81)$ -8.24%
Budget 1,500,000$
Variance, Favorable (Unfavorable)(455,118.53)
Actual Collections
$-
$100,000.00
$200,000.00
$300,000.00
$400,000.00
$500,000.00
$600,000.00
$700,000.00
$800,000.00
$900,000.00
$1,000,000.00
$1,100,000.00
$1,200,000.00
$1,300,000.00
$1,400,000.00
$1,500,000.00
2009 2010 2011 2012 2013
YTD Real Estate Transfer Tax Collections
Town of Avon
Real Estate Transfer Tax
August Collections Detail
Purchaser Name Property Amount Received
Balance Forward 947,301.77$
Land Title/ Wright 414 W Beaver Creek Blvd #B-22 4,200.00
Assured Title/ Bickley 415 W Beaver Creek Blvd #B-15 3,000.00
Title Co of the Rockies Sheraton Mtn Vista #13-34 1,249.30
Stewart Title/Ward Family Trust 100 W Beaver Creek Blvd #405 5,400.00
Stewart Title/Mongrain 37249 Hwy 6 #402 (Lodge at Brookside)13,800.00
Land Title/ PRJ Investments LLC 2530 Old Trail Rd A- E, (Snowberry Tnhms)21,285.00
Land Title/ Smith 109 Hurd Ln #1202 (Avon Crossing)3,240.00
Land Title/ Longo 217 W Beaver Creek blvd #E-33 (Greenbriar)7,600.00
Title Co of the Rockies Sheraton Mtn Vista #13-33 627.90
Fidelity National Title/Longsun 5151 LLC 5151 Longsun Ln 4,000.00
Chicago Title Riverfront #13-30 298.00
Chicago Title Riverfront #13-31 647.80
Vacation Title Services/Lapadula Riverfront Mtn Villas #2P103A and B 236.00
Land Title/Schwartz Falcon Point Unit #401, wk 27 30.00
Title Co of the Rockies Sheraton Mtn Vista #13-32 2,869.80
Stewart Title/ Weinberger and Brittain 2250 Old Trail Rd #A 3,780.00
Title Co of the Rockies/ Beaver Den LLC 179 Lake St #W-3 5,500.00
Stewart Title/ Sheffield 240 Chapel Place #BR-319 7,500.00
Land title/ Gallacci 175 Lake St #212, wk 35 (Falcon Point)36.00
Land title/ Gallacci 175 Lake St #208, wk 32 (Falcon Point)36.00
Colorado Prestige/ Evans and Haberman 511 Metcalf Rd #N-42 3,920.00
Title Co of the Rockies Sheraton Mtn Vista #13-31 2,667.90
Heritage Title/ Schmid 137 Benchmark Rd #307 5,330.00
Hopkinson Mtn Vista #1308/1306, wk 52 & #1314/1316, wk 51 326.00
Total August Revenue 97,579.70
Total YTD Revenue 1,044,881.47
Total 2013 Budget 1,500,000.00
Variance, Favorable (Unfavorable)(455,118.53)$
2013
Dept./Div.Budget Encumbrances Year To Date Available
Number Description Amended 6/11/13 Outstanding Expenditures Balance YTD/Budget
General Government:
Legislative:
111 Mayor and Town Council 177,734$ 20$ 134,875$ 42,839$ 75.90%
112 Boards and Commissions 15,307 - 8,563 6,744 55.94%
113 Town Attorney 250,000 114,748 156,452 (21,200) 108.48%
115 Town Clerk 107,410 465 51,960 54,985 48.81%
Total Legislative 550,451 115,233 351,850 83,368 84.85%
Judicial:
121 Municipal Court 115,054 10,693 76,388 27,973 75.69%
Executive:
131 Town Manager 262,907 - 190,855 72,052 72.59%
132 Human Resources 272,385 1,392 176,065 94,928 65.15%
133 Community Relations 117,085 9,083 52,006 55,996 52.17%
134 Economic Development 167,875 - 102,913 64,962 61.30%
Total Executive 820,252 10,475 521,839 287,938 64.90%
Finance Department:
141 Finance 704,588 1,285 443,432 259,871 63.12%
143 Information Systems 318,554 3,681 201,554 113,319 64.43%
149 Nondepartmental 325,087 8,763 290,445 25,879 92.04%
Total Financial Administration 1,348,229 13,729 935,431 399,069 70.40%
Total General Government 2,833,986 150,130 1,885,508 798,347 71.83%
Community Development:
211 Administration 46,502 5,048 26,359 15,095 67.54%
212 Planning 237,158 - 151,098 86,060 63.71%
213 Building Inspection 126,485 - 75,252 51,233 59.49%
Total Community Development 410,145 5,048 252,709 152,388 62.85%
Police Department:
311 Administration 529,769 12,249 355,588 161,932 69.43%
312 Patrol 1,960,107 29,454 1,326,860 603,793 69.20%
313 Investigations 108,330 20 68,422 39,888 63.18%
Total Police 2,598,206 41,723 1,750,870 805,613 68.99%
Department Expenditure Summaries
General Fund #10
January - August 2013 Expenditures to Date
Section I, Page 4
2013
Dept./Div.Budget Encumbrances Year To Date Available
Number Description Amended 6/11/13 Outstanding Expenditures Balance YTD/Budget
Department Expenditure Summaries
General Fund #10
January - August 2013 Expenditures to Date
Public Works:
412 Engineering 259,859 440 129,616 129,803 50.05%
413 Roads and Streets 1,608,520 56,408 879,998 672,114 58.22%
Total Public Works 1,868,379 56,848 1,009,614 801,917 57.08%
Parks and Recreation:
513 Special Events 334,892 290 237,919 96,683 71.13%
514 Administration 263,219 8,714 179,589 74,916 71.54%
515 Adult Programs 35,505 - 17,050 18,455 48.02%
516 Aquatics 469,896 5,035 305,514 159,347 66.09%
517 Childcare 40,761 - 22,222 18,539 54.52%
518 Fitness 135,747 1,514 108,775 25,458 81.25%
519 Front Desk 232,795 3,494 137,059 92,242 60.38%
521 Youth Programs 133,209 1,976 89,525 41,708 68.69%
522 Cabin 52,033 - 3,770 48,263 7.25%
551 Parks & Grounds 912,009 19,224 550,178 342,607 62.43%
571 Buildings & Facilities 1,040,903 91,737 592,556 356,610 65.74%
Total Parks and Recreation 3,650,969 131,984 2,244,157 1,274,828 65.08%
TOTAL OPERATING
EXPENDITURES 11,361,685$ 385,733$ 7,142,859$ 3,833,093 66.26%
Section I, Page 5
2013 Budget
Dept./Div.Amended Encumbrances Year To Date Available
Number Description 6/11/13 Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
Public Works:
434 Fleet Maintenance 1,512,870$ 54,593$ 969,650$ 488,627$ 67.70%
435 Washbay 13,000 600 6,550 5,850 55.00%
Total Operating Expenditures 1,525,870 55,193 976,200 494,477 67.59%
TOTAL EXPENDITURES 1,525,870$ 55,193$ 976,200$ 494,477$ 67.59%
Expenditure Summary
Fleet Maintenance Enterprise Fund #61
January - August 2013 Expenditures to Date
Section II, Page 1
2013 Budget
Dept./Div.Amended Encumbrances Year To Date Available
Number Description 6/11/13 Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
431 Transit Administration 48,222$ 2,588$ 27,314$ 18,320$ 62.01%
432 Transit Operations 1,034,079 116,088 681,794 236,197 77.16%
Total Operating Expenditures 1,082,301 118,676 709,108 254,517 76.48%
TOTAL EXPENDITURES 1,082,301$ 118,676$ 709,108$ 254,517$ 76.48%
Expenditure Summary
Transit Enterprise Fund #52
January - August 2013 Expenditures to Date
Section III, Page 1