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TC Council Packet 06-22-2010TOWN OF AVON, COLORADO AVON AVON REGULAR MEETING FOR TUESDAY, JUNE 22, 2010 __.____ MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM BRIAN SIPES COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR. TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME DURING CITIZEN AND COMMUNITY INPUT AND PUBLIC HEARINGS PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST 4. COMMUNITY & CITIZEN INPUT 5. CONSENT AGENDA a. Minutes from June 8, 2010 b. First Amendment to Phase II Subdivision Improvements Agreement for Lots 2, 3 and 5, Buck Creek Planned Unit Development (Justin Hildreth, Town Engineer) An amendment to the Buck Creek PUD that would substitute a letter of credit with cash collateral for the project c. Agreement between Town of Avon and Iron Kids Triathlon for Sponsorship (Danita Chirichillo, Special Events Coordinator) Approve sponsorship agreement with World Triathlon Corporation to host IronKids Triathlon event d. Salute to U.S.A. Event Update & Distribution of Credentials (Danita Chirichillo, Special Events Coordinator) 6. ORDINANCES a. Public Hearing on Ordinance No 10 -10, Series of 2010, Second Reading, Ordinance Amending Chapter 3.12 of the Avon Municipal Code to Revise the Exemptions from Real Estate Transfer Taxes (Eric Heil, Town Attorney) Legislation that revises the exemptions from real estate transfer taxes 7. RESOLUTIONS a. Public Hearing on Resolution No. 10 -16, Series of 2010, Resolution of the Town of Avon Authorizing a Tabor Election on November 2, 2010, Fixing the Ballot Title and Question, and Setting Forth Other Details Relating Thereto (Scott Wright, Assistant Town Manager Finance) Review ballot language for Avon CAN Proposal 8. TOWN MANAGER REPORT 9. TOWN ATTORNEY REPORT 10 MAYOR REPORT 11. ADJOURNMENT FUTURE COUNCIL AGENDA DATES He PROPOSED TOPICS: July 13, 2010: Light Ordinance Review, Community Funding, Medical Marijuana, Booting Ordinance Amendments Avon Council Meeting. 10.06.22 Page 3 of 3 MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD JUNE 8, 2010 A regular meeting of the Town of Avon, Colorado was held at the Avon Municipal Building, One Lake Street, Avon, Colorado in the Council Chambers. Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council members present were Rich Carroll, Dave Dantas Kristi Ferraro, Amy Phillips, Buz Reynolds and Brian Sipes. Also present were Town Attorney Eric Heil, Town Manager Larry Brooks, Asst. Town Manager Mgmt Services Patty McKenny, Assistant Town Manager Community Development Sally Vecchio, Recreation Director Meryl Jacobs, Community Relations Officer Jaime Walker as well as members of the public. APPROVAL OF AGENDA & DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST Councilor Carroll asked to include the following item to the evening Executive Session agenda due to some conversations on the topic during the earlier Executive Session: a. Receiving legal advice pursuant to Colorado Revised Statute §24- 6- 402(4)(b), developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d), and for the discussion of potential transfer of real property pursuant to Colorado Revised Statute §24- 6- 402(4)(a) specifically related to the Upper Eagle River Water Authority Avon water treatment plant site Mayor Pro Tern Sipes noted that he would not vote on the SIA amendment for Buck Creek PUD due to a conflict of interest. COMMUNITY & CITIZEN INPUT a. Danita Chirichillo, Special Events Coordinator, presented a review of Avon's Summer Events b. Greg Hall, Public Works Director, Town of Vail, presented the award to Jenny Strehler, Director PW &T from the Colorado Chapter of the American Public Works Association Award to Avon Public Works Administration for "Small Community Category: Avon's Community Heat Recovery Project" CONSENT AGENDA Mayor Wolfe asked for a motion on the consent agenda. Councilor Ferraro moved to approve the consent agenda; Mayor Pro Tern Sipes seconded the motion and it passed unanimously: a. Minutes from May 25, 2010 b. Revised Settlement Agreement Town of Avon Opposition To Case No. 05CW262 (Town of Minturn Application For Changes of Water Rights) And Case No. 05CW263 (Town of Minturn's Application for New Groundwater Rights) (Justin Hildreth, Town Engineer) There were questions from Council on the following item and it was therefore removed from the consent agenda. c. First Amendment to Phase II Subdivision Improvements Agreement for Lots 2, 3 and 5, Buck Creek Planned Unit Development (Justin Hildreth, Town Engineer) An amendment to the Buck Creek PUD that would substitute a letter of credit with cash collateral for the project Several revisions were suggested as a result of the council's questions and discussion. The revised SIA addressed changing the surety from a letter of credit to a cash escrow account and removing contradictory language dictating when permits can be issued. The further recommended changes included the following: ✓ Placing the escrow account into a separate account to prevent comingling of funds ✓ Additional language that would be clearer as to the enforcement of the SIA This item would be included on the next agenda. NEW BUSINESS Sally Vecchio, Assistant Town Manager Community Development, asked that the matter, the 2010 Intergovernmental Agreement for Building Inspection Services between the Town of Avon and the County of Eagle, be continued until sometime in July as the Eagle County Attorney's office has not yet had a chance to review the document. The IGA supports using Eagle County Building Inspectors on occasion when Avon's Building Official is unable to perform the inspections. It was discussed to revise the agreement so that the town could provide the same services to the county if so needed, to create a more reciprocal IGA environment. Councilor Dantas moved to continue the IGA until July; Mayor Pro Tern Sipes seconded the motion and it passed unanimously. ORDINANCES Eric Heil, Town Attorney, presented Ordinance No 10 -10, Series of 2010, First Reading, Ordinance Amending Chapter 3.12 of the Avon Municipal Code to Revise the Exemptions from Real Estate Transfer Taxes. He noted that the legislation amends Chapter 3.12 Real Property Transfer Tax by addressing the following items: ✓ Updating the exemption for transfer to, from and between business entities where no consideration is provided ✓ Revising Section 3.12.070 regarding applications and appeals. Further discussion resulted in some revisions as outlined in the motion. Councilor Ferraro moved to approve Ordinance No 10 -10, Series of 2010, Ordinance Amending Chapter 3.12 of the Avon Municipal Code to Revise the Exemptions from Real Estate Transfer Taxes with the following changes: 1. WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by 2. Section 3.12.060(5) is repealed in its entirety and reenacted to read as follows: "(5) Transfers made pursuant to capital investment, reorganization, merger, consolidation, liquidation, dissolution or termination of corporations, partnerships, limited liability companies, trusts, or other business entities recognized in Colorado for no consideration other than acquisition or cancellation or surrender of stock or percentage ownership interest in such business entity, ifto the extent that the relative ownership interest of such persons in the real property or in the percentage ownership of the business entity are the same after the transfer as immediately before the transfer and there is no monetary consideration� for that portion of the transfer." 3. (c) Application Review. The Town Manager, or designee, shall review applications for Exemption from Real Property Transfer Tax within thirty (30) days of receipt of a complete application. The failure of the Town Manager, or designee, to review an application for Exemption from Real Property Transfer Tax within thirty (30) days shall not be deemed to constitute an approval of an application for Exemption from Real Property Transfer Tax; however, the aatienapplicant may elect to appeal the application directly to the Town Council according to the procedures set forth in sub - section (d) below. If the Town Manager, or designee, determines that the application does not include adequate information to determine whether the application complies with an exemption stated in Section 3.12.060 of the Avon Municipal Code, the Town shall send a communication to the applicant stating that the application ^a^ neith er be approved n^rshall be denied unless the applicant provides additional information_ands shall state the required information neGessan, to nmmpl °f° r pand shall provide a maximum of thirty (30) days for the appliGation. -9nce 4e2pplicant to provide additional information h° r°^°"Ve f "° The Town Manager, or designee, shall review the supplemented appliG additional information which is timely submitted within Regular Council Meeting Page 2 of 4 10.06.08.doc thirty (30) days of receipt. The Town Manager, or designee, shall approve, partially approve, or deny the application in writing based upon compliance with the exemptions, or the intent of the exemptions, set forth in Section 3.12.060. Inadequate or inaccurate information which does not demonstrate compliance with the exemptions set forth in Section 3.12.060 shall be grounds for denial of an application. (d) Appeal to Council. Any person whose application for Exemption from Real Property Transfer Tax is not acted upon with the timeframe set forth in sub - paragraph (c) above or whose application is denied or partially approved may appeal such decision to the Town Council in accordance with the procedures and requirements of this Section 3.12.070. Councilor Phillips seconded the motion and it passed unanimously. COMMUNITY & CITIZEN INPUT - CONTINUED Mark Weinrich, ABA member, resident and business owner in Avon, commented on the Avon CAN proposal, noting that the sentiment of the group is still resoundingly not in favor of increasing the sales tax in Avon. He asked council to consider finding other revenue streams instead of sales tax. RESOLUTIONS Scott Wright, Assistant Town Manager Finance, presented Resolution No 10 -15, Series of 2010, Resolution in Opposition of Statewide Ballot Measures Proposition 101, Amendment 60 and Amendment 61. He noted that the Resolution was drafted that stated Avon's Town Council opposed the positions of the statewide ballot measures to be voted on in November. He also described some of the devastating financial impacts that would be a result of passing the measures: Proposition 101: ✓ Reduction of specific ownership tax ✓ Elimination of vehicle rental taxes ✓ Elimination of communications tax Amendment 60: ✓ Eliminates the debrucing vote in 1998 which allowed Avon to retain over $2M in property tax; if passed would reduce Avon's ability to collect $300K in taxes Amendment 61: ✓ Impacts town's taxes in relationship to its debt of $1.2M so that over a period of several years when bonds mature, it would be forced to reduce its property taxes as well Councilor Ferraro moved to approve Resolution No 10 -15, Series of 2010, Resolution in Opposition of Statewide Ballot Measures Proposition 101, Amendment 60 and Amendment 61; Mayor Pro Tern Sipes seconded the motion and it passed unanimously. MAYOR REPORT Ron Wolfe, Mayor, presented an update on the Eagle Valley Multi Party Land Exchange, noting that some of the parties have agreed to assist with the land trades. TOWN MANAGER REPORT Larry Brooks, Town Manager, noted that he spent time with Eagle County Commissioners on the Swift Gulch Regional Facility proposal. Regular Council Meeting Page 3 of 4 10.06.08.doc EXECUTIVE SESSION Councilor Phillips moved to convene into an Executive Session at 6:35 PM to discuss the following matters as outlined on the agenda; Councilor Carroll seconded the motion and it passed unanimously. a. Receiving legal advice pursuant to Colorado Revised Statute §24- 6- 402(4)(b) and for developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d) specifically related to pending litigation and settlement discussions regarding Town of Avon v Traer Creek Metropolitan District, 2008 CV 0385 b. Receiving legal advice pursuant to Colorado Revised Statute §24- 6- 402(4)(b) specifically related to pending litigation regarding Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316 c. Receiving legal advice pursuant to Colorado Revised Statute §24- 6- 402(4)(b), developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d), and for the discussion of potential transfer of real property pursuant to Colorado Revised Statute §24- 6- 402(4)(a) specifically related to the Upper Eagle River Water Authority Avon water treatment plant site Councilor Ferraro moved to convene to the Regular Meeting at 8:15 pm; Mayor Pro Tern Sipes seconded the motion and it passed unanimously. There being no further business to come before the Council, the regular meeting adjourned at 8:15 PM. RESPECTFULLY SUBMITTED: Patty B. McKenny, Town Clerk APPROVED: Rich Carroll Dave Dantas Kristi Ferraro Amy Phillips Albert "Buz" Reynolds Brian Sipes Ron Wolfe Regular Council Meeting Page 4 of 4 10.06.08.doc Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Mgr /Director of Comm. Dev. From Date: Re: Justin Hildreth, P.E., Town Engineer June 17, 2010 Initials 16`4 Revised Subdivision Improvement Agreements for Phase II Buck Creek PUD Summary: The applicant, Tanavon Corporation, has submitted an amendment to the Phase II Subdivision Improvement Agreement (SIA) for Lots 2, 3, and 5 of the Buck Creek PUD (Attachment A.) The SIA provides for completion of improvements as depicted on the approved Buck Creek PUD plans. The revisions to the SIA include: switching the surety from a letter of credit to a cash escrow account, and removing contradictory language dictating when permits can be issued for the project during construction. The revised SIA was presented to Town Council at the June 8, 2010 meeting at which Town Council requested several changes including placing the escrow account into a separate account at a local bank to prevent co- mingling of funds, and Town Council requested additional information on the enforcement of the SIA. An escrow account has been set up at Alpine Bank and the following language has been added to the SIA: "The cash escrow account ( "Cash Escrow Account ") shall be deposited at Alpine Bank, Avon, Colorado. The Cash Escrow Account shall be maintained for the sole purpose of funding the Improvements and no funds shall be withdrawn from such account except as provided for in the Agreement as amended by the First Amendment to the Agreement, or the Cash Escrow Agreement. The funds in the Cash Escrow Account shall not be comingled with any other funds or used in any manner except as stated above." The enforcement provisions of the SIA are outlined in sections 4(b) and 10 (Attachment B). In summary, the provisions allow that in the event of default, the Town can withdraw funds from the escrow account to complete improvements if it wants but is not obligated to do so. Also in the event of default, the Town can recoup all fees, court costs & attorney's fees and withhold all permits and development applications for lots 2, 3 and 5. Staff is of the opinion that these provisions protect the town adequately if there is a default by the developer of the project. Previous Council Action: December 08, 2009 - Town Council approved the Phase II Subdivision Improvement Agreement for Lots 2, 3 and 5, Buck Creek PUD First Amendment. Recommendation: Approve the First Amendment to Phase II Subdivision Improvements Agreement for Lots 2, 3 and 5, Buck Creek PUD First Amendment as written and attached hereto. Proposed Motion: "I move to approve the First Amendment to Phase II Subdivision Improvements Agreement for Lots 2, 3 and 5, Buck Creek PUD First Amendment." Town Manager Comments: Attachments: Attachment A - Revised Phase II SIA for lots 1A and 1B Attachment B - Phase li Subdivision Improvement Agreement for Lots 2, 3 and 5, Buck Creek PUD First Amendment • Page 2 ATTACHMENT A BUCK CREEK PUD AGREEMENT FOR CASH ESCROW FOR PHASE II THIS AGREEMENT, made and entered into this 18th day of May, 2010, is by and between Buck Creek Associates Ltd., a Colorado corporation, 108 S. Frontage Road, Suite 208, Vail, CO 81657 ( "Buck Creek "), Gore Range Natural Science School Non -Profit Corporation, 82 E. Beaver Creek Blvd., Suite 202, P.O. Box 9469, Avon, CO 81620 ( "GRNSS ") (collectively the "Parties "). RECITALS WHEREAS, the Parties have entered into a Phase II Subdivision Improvements Agreement ( "SIA ") for Lots 2, 3, and 5, Buck Creek PUD First Amendment, with the Town of Avon ( "Town "), as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code "); and WHEREAS, pursuant to Section 16.24.100(2) of the Code, the Parties are required to provide collateral which is sufficient to make reasonable provision for the completion of the improvements ( "Improvements ") for Lots 2, 3, and 5 as depicted on the plans approved by the Town for the Buck Creek PUD First Amendment, dated December 30, 2009, ( "Approved Plans ") and as set forth in Exhibit A attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer; and WHEREAS, Buck Creek and GRNSS have agreed to create a cash escrow for payment of the parties' shared costs for Lots 2, 3, and 5 to be funded prior to commencement of construction ( "Common Development Costs "). Currently the Common Development Costs for Lots 2, 3, and 5 are estimated to be $457,343.77 ( "Estimated Common Development Costs ") as set forth on the attached Exhibit "A." Such costs shall be allocated as follows: Buck Creek: Forty Percent (40 %) GRNSS: Sixty Percent (60 %) Exhibit A also contains an amount equal to a ten percent (10 %) of the Estimated Common Development Costs as additional security ( "Contingency Fund "). WHEREAS, the Parties have provided in the Second Amendment to the SIA that this funded cash escrow and the Contingency Fund shall serve as the collateral required by the Town to secure the completion of the Improvements for Lots 2, 3, and 5 in accordance with the design and time specifications agreed to by the Parties and Section 16.24.100(2).a of the Code. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Escrow Agent for Cash Escrow. The Parties hereby designate the GRNSS as their Escrow Agent to hold the cash escrow, to disburse these funds to pay the Common Development Costs for Lots 2, 3, and 5, and to make regular reports to the Parties and to the Town of disbursements and funds available for payment of the Common Development Costs which the Parties have agreed to fund from the cash escrow. In acting as the Escrow Agent, GRNSS shall not receive any compensation for its services. No disbursements for the costs of actual construction of the Improvements shall be made from the cash escrow without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. In the event change orders or cost increases for the Improvements occur, the Town shall be notified within two (2) working days and the cash escrow shall be increased, if necessary, to maintain an amount equal to one hundred percent (100 %) of the estimated costs of completion of the Improvements as set forth on Exhibit B, plus such cost increases. The Contingency Fund provided by the Buck Creek shall not be released until after completion of the Improvements and until after inspection and approval of the Improvements by the Town. The cash escrow account ( "Cash Escrow Account ") shall be deposited at Alpine Bank, Avon, Colorado. The Cash Escrow Account shall be maintained for the sole purpose of funding the Improvements and no funds shall be withdrawn from such account except as provided for in the Agreement as amended by the First Amendment to the Agreement, or the Cash Escrow Agreement. The funds in the Cash Escrow Account shall not be comingled with any other funds or used in any manner except as stated above. Upon completion of the Improvements and Final Payment of all costs, the GRNSS as Escrow Agent shall issue a Final Report for the cash escrow to the Parties and disburse any funds which may remain in the cash escrow to Buck Creek (40 %) and to GRNSSS (60 %) and the cash escrow shall be closed. Buck Creek and GRNSS have agreed that is these Common Development Costs for Lots 2, 3, and 5 exceed $457,343.77, Buck Creek shall pay Forty percent (40 %) and GRNSS shall pay sixty percent (60 %) of any amount in excess of $457,343.77. Buck Creek and GRNSS agree to pay such excess amounts due by making additional payments of the necessary amounts to the cash escrow held by GRNSS as Escrow Agent. 2. Contingency Fund. In addition to the Estimated Common Development Costs to be held by GRNSS as Escrow Agent, Buck Creek and GRNSS shall transfer to 14 the escrow fund the sum of $45,734.38 which is the ten percent (10 %) of the Estimated Common Development Costs. GRNSS shall hold the Contingency Fund during the period of construction and to secure the Guarantee of Improvements for two (2) years after the completion of the Improvements. In the alternative, Buck Creek and GRNSS may provide a separate Irrevocable Letter of Credit in the amount of ten percent (10 %) of the actual Common Development Costs during the two (2) year Guarantee of Improvements period. 3. Completion of Work. GRNSS shall oversee the construction of the Improvements for Lots 2, 3, and 5 as set forth in the Approved Plans and all work shall be performed in accordance with the Approved Plans. GRNSS shall utilize the services of J & K Engineering and Agett, LLC, as Engineers and as the Construction Consultant to engineer, design, prepare cost estimates and a final construction budget, bid and supervise all of the construction of the Improvements for Lots 2, 3, and 5, including recommendations and approval of all disbursements by the Escrow Agent. GRNSS, through J & K Engineering and Agett, LLC, shall provide development reports on a regular basis to Buck Creek. Before awarding the bid for the construction of these Improvements, GRNSS shall provide copies of all bids to Buck Creek with notification of the party or parties that the GRNSS will award the bid to on the date provided in the Bid Specifications. Each contractor entering into a contract for construction of the Improvements shall be required to procure and maintain Commercial General Liability Insurance during the duration of such contract in the amount of at least $2,000,000.00 each occurrence and $4,000,000.00 general aggregate. These policies shall be applicable to all premises and operations. Such policies shall include Buck Creek and GRNSS as named insureds and shall include a provision prohibiting cancellation or termination without thirty (30) days prior written notice to the insureds. Such insurance shall provide protection from all claims for bodily injury, including death, property damage, contractual liability and completed operations. Each contractor shall be required to provide Builder's Risk Insurance with minimum limits of not less than the insurable value of its work to be performed. These policies shall be written on an "all risk" basis and shall name Buck Creek and GRNSS as insureds. These policies shall contain a waiver of subrogation by the issuer with respect to the insureds and their respective officers, agents and employees while acting within the scope of their employment. GRNSS shall be required to encourage and consider the advice and recommendations of Buck Creek in the exercise of its obligation to oversee construction of the Improvements. The Parties agree to commence construction of the Improvements for Lots 2, 3, and 5 prior to the issuance of a building permit for any improvements on Lots 2, 3, and 5, and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building on any of the aforementioned Lots served by the Improvements. 4. Security for Completion of Improvements and Obligations. To secure completion of the Improvements and the Parties' obligations to the Town, GRNSS as Escrow Agent agrees to hold the cash escrow as the collateral required to secure the 3 Parties' respective obligations under this Agreement and the Phase II Subdivision Improvements Agreement in accordance with Section 16.24.100 of the Code ( "Collateral "). Buck Creek and the GRNSS agree to maintain the Contingency Fund as either a cash escrow or an Irrevocable Letter of Credit to secure its obligations to the Town. 5. Common Development Costs. (a) Improvements for Lots 2, 3, and 5. Common Development Costs may include construction of a common pavement roadway system; utility extensions for water, sewer, gas, electric, telephone and television; construction of drainage and containment systems; construction of retaining walls; stream, flood and wetlands mitigation; site improvement, preparation and earthwork; and all common costs, administrative costs, fees, insurance and other expenses associated with the Improvements. (b) Progress Payments on Improvements. Upon completion of itemized Improvements for which cost estimates have been set forth in Exhibit B and upon receipt of the certifications as specified in paragraph 6 below verifying that itemized portions of the Improvements have been completed, the amount of the cash escrow may be reduced periodically by GRNSS, acting as Escrow Agent, making payments from the cash escrow to those persons and firms that have performed and completed the work. No disbursements for the costs of actual construction of the Improvements shall be made from the cash escrow without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. Lien waivers shall be requested from the contractor when appropriate. 6. Warranty Period. The Bid Specifications shall require that the Improvements be warranted to be free from defects in workmanship or quality for a period of two (2) years after acceptance of all the work by the Town. Written warranties shall be obtained and maintained by the Parties during the warranty period. In the event of any such defect, GRNSS shall require the contractor warranting the work to correct the defect in material or workmanship. The Contingency Fund equal to at least ten percent (10 %) of the actual cost of completion of all Improvements, or an Irrevocable Letter of Credit in the same amount, shall be provided to the Town as security during such two (2) year period as a guaranty of performance of any work required pursuant to the above described warranty. In the event any corrective work is performed during the two -year warranty period, then the warranty on said corrected work secured by the Contingency Fund shall be extended for two (2) years from the date on which the corrected work is completed in an amount equal to 125% of the cost of any corrected work, as estimated by the Town. If no defects in the corrected work are found, after two years GRNSS shall request release of the Contingency Fund by the Town. 7. Engineering Certification. Upon completion of portions of the Improvements, GRNSS will cause J & K Engineering to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on -site observation, review of sufficient construction - observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Improvements for Lots 2, 3, and 5, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as- constructed plans and other supporting documentation shall be submitted with the certification. The as- constructed plans shall be submitted on paper and in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 8. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that the Parties are not in default under any of their other obligations to the Town, the Parties shall request that the Town issue a letter, in recordable form, certifying that all obligations of the Parties under the Phase II Subdivision Improvements Agreement have been satisfied. 9. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by the Parties. 10. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land known as the Buck Creek PUD First Amendment and shall be binding on the successors and assigns of the parties hereto. 11. Governing Law, Venue, and Enforcement. This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. 12. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 13. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third parry, including any agent, sub - consultant or sub - contractor of the Buck Creek or GRNSS. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. Notwithstanding the foregoing, the Parties expressly acknowledge and agree that the Town of Avon is a third parry beneficiary of this Agreement and that the purpose of this Agreement is to provide adequate financial security to insure completion of the Phase II Subdivision Improvements which are required to serve Lot 2, Lot 3, or Lot 5 of the Buck Creek PUD, Town of Avon, CO. [ Signature pages follow ] The parties hereto have executed this Agreement as of the date first above written. BUCK CREEK ASSOCIATESS Ltd., a Colorado Corporation ( "Buck Creek ") In President GORE RANGE NATURAL SCIENCE SCHOOL NON - PROFIT CORPORATION ( "GRNS S ") Markian Feduschak Executive Director 7 EXHIBIT A Agreement for Cash Escrow APPROVED PLANS: Construction Drawings Buck Creek PUD Lots 2, 3, ands, Town of Avon, Colorado May 17, 2010 Sheets C0.1, C0.2, C1.1, C1.2, C1.3, C2.1, C2.2, C2.3, C3.1, C3.2, C3.3, C4.1, C4.2, C5.1, C6.1, C6.2, C7.1, C7.2, C7.3, C7.4, and C7.5 Release Date: May 17, 2010 Prepared by: J &K, Inc. EXHIBIT B Agreement for Cash Escrow IMPROVEMENTS CONSTRUCTION COST ESTIMATE ATTACHMENT B PHASE II SUBDIVISION IMPROVEMENTS AGREEMENT FOR LOTS 2,3 AND 5, BUCK CREEK PUD FIRST AMENDMENT THIS AGREEMENT, made and entered into this _ day of December, 2009, _ 2005, is by and among Tanavon Corporation, a Colorado corporation, 108 S. Frontage Road, Suite 208, Vail, CO 81657 ( "Subdivider "), Gore Range Natural Science School Non - Profit Corporation, 82 E. Beaver Creek Blvd., Suite 202, P.O. Box 9469, Avon, CO 81620 ( "GRNSS "), and the Town of Avon, a Colorado municipality, by and through its Council (the "Town "). RECITALS WHEREAS, the Subdivider, in connection with the approval of the final plat for the Buck Creek PUD First Amendment, consisting of 15.796 acres, formerly known as Lots 1, 2, 3, and 4, Wildwood Resort, Town of Avon, Eagle County, Colorado (the "Subdivision "), desires to enter into this Phase II Subdivision Improvements Agreement ( "Agreement ") for Lots 2, 3 and 5 with the Town as provided for by Section 16.24. 100 of the Avon Municipal Code, as amended (the "Code "); and WHEREAS, pursuant to the Code, the Town desires to make reasonable provisions for completion of certain improvements ( "Improvements ") as depicted on the plans approved by the Town for the Buck Creek PUD First Amendment, dated December 2009, ( "Approved Plans ") and as set forth in Exhibit A attached hereto and incorporated herein by reference, together with minor changes approved by the Town Engineer; and WHEREAS, the Subdivider owns Lots 2 and 5 and GRNSS owns Lot 3 within the Buck Creek PUD First Amendment, and have agreed to be jointly responsible for the completion of the Improvements for Lots 2, 3 and 5 within the Subdivision; and WHEREAS, Subdivider, GRNSS and the Eagle River Fire Protection District have entered into a separate Phase I Subdivision Improvements Agreement for Improvements for Lot I and Lot 1B within the Subdivision. AGREEMENT NOW THEREFORE, in consideration of the following mutual covenants, conditions and promises, the parties hereby agree as follows: 1. Final Plat Approval. The Town agrees that subject to compliance with all conditions of approval, specifically including the Conditions set forth in Exhibit C attached hereto and incorporated herein by this reference, and subject to the terms and conditions of this Agreement, the Final Plat of Buck Creek PUD First Amendment shall be promptly filed for recording with the Office of the Eagle County Clerk and Recorder. 100 1 74650.DOC / 4 } 2. Completion of Work. (a) Performance. Subdivider and GRNSS agree to furnish all equipment, labor and material necessary to perform and complete, in a good and workmanlike manner, all Improvements and work incidental thereto ( "the Work ") as depicted on the Approved Plans for Lots 2, 3 and 5 as set forth in Exhibit A. Subdivider and GRNSS further agree that each will be responsible for all costs of Improvements as set forth in Exhibit B, Public Improvements Construction Cost Estimate, for Lots 2, 3 and 5. Said Work shall be performed in accordance with the Approved Plans. Subdivider and GRNSS agree to commence construction of Improvements prior to the issuance of any building permit for any improvements upon Lots 2, 3 and 5 and to complete the Improvements prior to the issuance of a Certificate of Occupancy for any building upon Lots 2, 3 or 5 served by the Improvements. Commencement of construction of Improvements shall be deemed to mean the award and execution of contracts for the construction of the Improvements as depicted on Exhibit A for Lots 2, 3 and 5. (b) Inspection Procedures. (1) All work shall be done under the inspection procedures and standards established by the Town and Holy Cross Energy, Eagle River Water and Sanitation District, Excel Energy, Qwest Communications, Comcast or any other utility ( "Utilities "), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. All work shall not be deemed complete until the reasonable approval and acceptance of the Improvements for Lots 2, 3 and 5 by the Town and/or the Utilities. Such inspections by the Town and Utilities shall not relieve the Subdivider or GRNSS or their agents from any responsibility or obligation to assure that all work is completed in conformance with all standards, plans and specifications as submitted to and previously approved by the Town and Utilities. No disbursements for the costs of actual construction of the Improvements shall be made without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. (2) Cost of Inspections. The cost, if any, of such inspections, by Town employees, or an independent third party inspector, shall be paid by the Subdivider and GRNSS, subject to the limitations set forth in paragraph 7 below. (3) Notice of Non-Compliance. In the event that the Town through its inspectors reasonably determines that the Improvements are not in compliance with the Approved Plans, it shall give written notice of such non - compliance ( "Notice of Non - Compliance ") to the Subdivider and GRNSS. The Notice of Non - Compliance shall include a narrative describing the unsatisfactory construction work with specific reference 001 74650. DOC / 4 } to the applicable construction plans and specifications. The Notice of Non- Compliance must be provided to the Subdivider and GRNSS within two (2) working days of the date of the inspection. 3. Security for Completion of Improvements and Obligations. To secure completion of those Improvements which serve Lots 2, 3 and 5, the cost of which shall be shared by Subdivider and GRNSS, the Subdivider and GRNSS hereby agree to secure their respective obligations under this Agreement by separate Irrevocable Letters of Credit from the Subdivider and GRNSS in an amount equal to one - hundred -ten percent (110 %) of the estimated cost of completion of the Improvements as set forth on Exhibit B and in a form acceptable to the Town, or by any other form of collateral authorized by Section 16.24.100(2) of the Code ( "Collateral "), prior to the commencement of the construction of any Improvements serving Lots 2, 3 and 5 by the Subdivider and GRNSS. No disbursements for the costs of actual construction of the Improvements shall be made without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. In the event change orders or cost increases for the Improvements occur, the Town shall be notified within two (2) working days and the Collateral shall be increased, if necessary, to maintain an amount equal to one hundred and ten percent (110 %) of the estimated costs of completion of the Improvements as set forth on Exhibit B, plus such cost increases. 4. Subdivider Improvements. (a) Security for Completion of Improvements. Subdivider and GRNSS shall deliver to the Town Collateral in an amount equal to one hundred and ten percent (110 %) of the estimated costs of completion of the Improvements for Lots 2, 3 and 5 as set forth on Exhibit B as determined by an engineer licensed in the State of Colorado and as approved by the Town Engineer. Construction of such Improvements, the cost of which shall be shared by Subdivider and GRNSS, shall be secured by separate Irrevocable Letters of Credit from the Subdivider and GRNSS in a form and amounts acceptable to the Town, or by any other form of collateral authorized by Section 16.24.100(2) of the Code, prior to the commencement of the construction of any such Improvements serving Lots 2, 3 and 5 by the Subdivider and GRNSS. No disbursements for the costs of actual construction of the Improvements shall be made without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. 100174650.DOC / 4} 3 (b) Progress Payments on Improvements. Upon completion of itemized Improvements which serve Lots 2, 3 and 5 for which cost estimates have been set forth in Exhibit B and upon receipt of the Certifications as specified in paragraph 7 below verifying that itemized portions of such Improvements have been completed and provided that Subdivider and GRNSS are not in default under any of their other obligations to the Town, the amount of Collateral may be reduced periodically; provided, however, that in no event will any such reduction cause the amount of remaining Collateral to be less than an amount equal to one hundred and ten percent (110 %) of the estimated costs of completion of all remaining Improvements for Lots 2, 3 and 5. No disbursements for the costs of actual construction of the Improvements shall be made without written authorization from the Town Engineer. Submittal of Letters of Construction Acceptance shall be required from the deep utility provider for those facilities then under construction for which payment is then being requested before such a disbursement may be approved and other infrastructure constructed above such facilities. The Town Engineer shall approve or reject any disbursement request within six (6) working days of receipt or the requirement for approval is waived. Upon completion of all Work related to such Improvements and the Town's and Utility's acceptance of such Improvements and provided Subdivider and GRNSS are not in default under any of their other obligations to the Town, the entire amount of remaining Collateral less those amounts described in paragraph 5 below shall be promptly released. (c) Default by Subdivider or GRNSS. In the event of a default in whole or in part by Subdivider or GRNSS in the completion of Improvements for Lots 2, 3 and 5, the Town shall be authorized, but not obligated, to draw on the Collateral for the purpose of undertaking completion or remediation work on the Improvements for Lots 2, 3 and 5, or otherwise curing any default hereunder after providing thirty (30) days' advance written notice of default and providing an opportunity during such period for Subdivider and GRNSS to cure the default. The Town shall be entitled, but not obligated, to draw on the Collateral by Resolution of the Town Council or Certificate of the Town Engineer stating (i) that Subdivider or GRNSS is in default, and (ii) the funds are required in order to complete or correct work on the Improvements for Lots 2, 3 or 5, or to otherwise cure Subdivider's or GRNSS's default. 5. Warranty Period. The Improvements for Lots 2, 3 and 5 shall be warranted to be free from defects in workmanship or quality for a period of two (2) years after approval of the Work by the Town. In the event of any such defect, the Town may require Subdivider and GRNSS to correct the defect in material or workmanship. Ten percent (10 %) of the total actual cost of completion of all Improvements shall be retained by the Town as Collateral during such two (2) year period as a guaranty of performance of any work required pursuant to the above described warranty. In the event any corrective work is performed during the two -year warranty period then the warranty on said corrected work shall be extended for two (2) years from the date on which it is completed. Collateral equal to 125% of the cost of any corrected work, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Subdivider or GRNSS, if sufficient funds are not held by the Town, in accordance with 00174650. DOC / 4 } 4 Section 16.24. 100, for a period of two (2) years from the date of completion of the corrected work. 6. Engineering Certification. Upon completion of portions of the Improvements for Lots 2, 3 and 5, Subdivider and GRNSS will cause their engineers (who shall have been actively engaged in observing the construction of the Improvements and be registered in the State of Colorado) to provide a written opinion, to the satisfaction of the Town Engineer, that based upon on -site observation, review of sufficient construction - observation reports, field test reports and material test reports and certifications by qualified personnel, the installation of the Improvements, or portions thereof as may be completed from time to time, have been completed, to the best of their knowledge and professional judgment, in conformance with all standards, plans and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on the Approved Plans. Inspection reports, test results, as- constructed plans and other supporting documentation shall be submitted with the certification. The as- constructed plans shall be submitted on paper and in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 7. Subdivision and Inspection Fees. Fees in accordance with the Town's Subdivision Regulations for the review of Preliminary Plans and Final Plats have been paid in full by Subdivider. Additional fees, if any, shall be paid by the Subdivider and GRNSS within thirty (30) days after delivery of written invoice for such fees to cover the cost of inspections by the Town. The fees, if any, will be based on direct (out -of- pocket) costs of the Town plus an administrative fee in the amount of fifteen (15 %) percent of the direct costs, but in no event will the total amount of such additional inspection fees exceed five percent (5 %) of construction costs. 8. No Obligation of Town to Complete Improvements. Subdivider and GRNSS agree that in the event they shall fail to perform their obligations as set forth herein, the Town shall be under no obligation to complete any of the said Improvements for Lots 2, 3 and 5 or to issue permits for development of these Lots within the Subdivision and that the Town, in the exercise of its sole and absolute discretion, may apply the Collateral to curing the default of Subdivider and GRNSS under any of their other obligations to the Town under this Agreement. 9. Non - Liability of Town; Indemnification. The Town shall not, nor shall any officer, agent, or employee thereof, be liable or responsible for any accident, loss or damage related to the Work specified in this Agreement, nor shall the Town, nor any officer, agent or employee thereof, be liable for any persons or property injured by reason of the nature of said Work. To the extent permitted by law, Subdivider and GRNSS hereby agree to indemnify and hold harmless the Town, and any of its officers, agents and employees against any losses, claims, damages or liabilities to which the Town or any of its officers, agents or employees may become subject, because of any losses, claims, damages or liabilities (or actions in respect thereof) that arise out of, or are based upon, any acts or omissions in the performance of the obligations of Subdivider or GRNSS, as , 00174650. DOC / 4 } hereinbefore stated. Furthermore, the Subdivider and GRNSS shall reimburse the Town for any and all legal or other expenses reasonably incurred by the Town in connection with investigating or defending any such loss or claim. Subdivider and GRNSS acknowledge that Town's approval of the Final Plat shall not be construed as an approval of the technical correctness of the Final Plat or any documentation related thereto. 10. Rights of Town in Event of Default. In the event that Subdivider or GRNSS defaults in whole or in part in the performance of this Agreement, and after the expiration of thirty (30) days after having given written notice to Subdivider and GRNSS of such default during which period of time the Subdivider and GRNSS fail to correct said default, the Town may, at its sole discretion, proceed with the construction or completion of the Improvements for Lots 2, 3 and 5 specified on Exhibit A, or may, in its sole discretion, take such steps, such as erosion control measures or safety measures, which it deems necessary to secure the site in the event of abandonment of the Work.. All such costs paid by the Town to construct or complete the Improvements or to secure the site, together with an administrative fee in the amount of fifteen percent (15 %) of total direct costs including cost of personnel, equipment and other amounts expended by the Town in furtherance of the construction responsibilities of Subdivider and GRNSS, shall be paid by Subdivider and GRNSS in equal shares. Any such costs relating to such Improvements, which have not been paid or reimbursed by Subdivider or GRNSS , shall be a debt of Subdivider and GRNSS and a lien on any property in the Subdivision owned by Subdivider or GRNSS at the time of default. Said lien may be foreclosed in the same manner as a tax lien and shall entitle the Town to add its costs and reasonable attorneys' fees in such foreclosure or other collection. In addition to or in lieu of the foregoing, the Town may bring a mandatory injunction action against Subdivider and GRNSS to require installation and construction of the Improvements. If any such action is brought by the Town, the Town shall be awarded its court costs, attorneys' fees and an amount to compensate the Town for the time of its employees in the preparation of and participation in such action. The Town may also withhold any further permitting or processing of development applications for Lots 2, 3 or 5 during any period of default. 11. Letter Certifying Completion and Final Acceptance of Improvements. When all Improvements for Lots 2, 3 and 5 have been completed and accepted by the Town, or the pertinent utility supplier, and the Warranty Period has expired and provided that Subdiver and GRNSS are not in default under any of their other obligations to the Town under this Agreement, the Town agrees that it will issue a letter, after consultation with the pertinent utility supplier if necessary, in recordable form, certifying that all obligations of Subdivider and GRNSS under this Agreement have been satisfied. 12. Amendments. This Agreement may be amended from time to time, provided that such amendment is in writing and signed by all parties hereto. 13. Covenants Running with the Land. This Agreement and the obligations hereof shall be deemed to be covenants running with the land and shall be binding on the successors and assigns of the parties hereto. (00 174650. DOC / 4 ) 14. Governing Law Venue and Enforcement. This Agreement shall be governed by and interpreted according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree that the rule that ambiguities in a contract are to be construed against the drafting party shall not apply to the interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit or attachment, the language of this Agreement shall govern. 15. Non - Liability of Town for Indirect or Consequential Damages or Lost Profits. The Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits that result from the Town's declaration that Subdivider or GRNSS is in default of the Agreement, so long as the Town acts in good faith. 16. Incorporation of Exhibits. Unless otherwise stated in this Agreement, exhibits, applications, or documents referenced in this Agreement shall be incorporated in this Agreement for all purposes. In the event of a conflict between any incorporated exhibit and this Agreement, the provisions of this Agreement shall govern and control. 17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or benefits set forth in this Agreement shall not be assigned by Subdivider or GRNSS without the express written consent of the Town Council of the Town. Any written assignment shall expressly refer to this Agreement, specify the particular rights, duties, obligations, responsibilities, or benefits so assigned, and shall not be effective unless approved by resolution or motion of the Town Council of the Town. No assignment shall release Subdivider or GRNSS from performance of any duty, obligation, or responsibility unless such release is clearly expressed in such written document of assignment. 18. No Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a contractual relation with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - consultant or sub - contractor of the Subdivider or GRNSS. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. [ Signature pages follow ) 100 1 74650.DOC / 4) The parties hereto have executed this Agreement as of the date first above written. APPROVED AS TO FORM: " ( Town Attorney (00174650. DOC / 4) 8 TOWN OF AVON, a Colorado Municipal Corporation By: L L-- Mayor TANAVON CORPORATION, a Colorado corporation ( "Subdivider ") By: _�4_ President GORE RANGE NATURAL SCIENCE SCHOOL NON - PROFIT CORPORATION ( "GRNSS ") By: Markian Feduschak Executive Director EXHIBIT A Subdivision Improvements Agreement for Lots 2, 3 and 5 APPROVED PLANS: Construction Drawings Town of Avon, Colorado 20 Sheets 1 through — Release Date: , 20 Prepared by: * As of the date of execution of this Subdivision Improvements Agreement, the construction plans submitted to the Town of Avon have not been approved by the Town Engineer. These construction plans shall be approved by the Town Engineer before the commencement of actual construction of the Improvements therein described. {001 74650. UOC / 4 } 9 EXHIBIT B Subdivision Improvements Agreement for Lots 2, 3 and 5 IMPROVEMENTS CONSTRUCTION COST ESTIMATE ;001 74650. DOC/ 4) 10 BUCK CREEK FINAL PLAT 8-Dec-09 Lots 1-5 Infrastructure SIA Cost Summary 'Total Lot 1 A Infrastructure Costs Shared Individual $ FD Costs $ 279,078.10 -Individual 79,449.50 $ 358,527.60 GRNSS Costs $ _226,135.85 ...$. $ - $ 226,135.85 Townhome Costs $ 283,232.48 $ 9,745.25 $ $ 686,799.24 ,.Total Infrastructure Costs $ 1,481,909.46 $522,231-03 Subtotal Lot 1A_ $ _292,977.73 Total Lots 2/5 Infrastructure Costs Shared FD Costs $ GRNSS Costs $ 3461731,51 Townhorne Costs $ 346,731.51 Individual Shared Individual $ $ 346,731.51 $ 47,090.00 ......... ..... .... $ 393,821.51 Subtotal Lots 2/5 $ 740,553.02 Total Lot 3 Infrastructure Costs Shared Individual FD Costs $ $ $ GRNSS Costs Townhome Costs $ $ $ 385,946.28 $ 385,946-28 $ $ 385,946.28 Subtotal Lot 3 $ 385,946.281 TOTAL COSTS Shared — Individual Total FD Costs (Lot 1 A) $ 2791078.10 $ 79,449.50 $ 358,627.60 GRNSS Costs (Lot 5) $ 572,867.36 $ 385,946.28 $ 958,813.65 Townhome Costs (Lo1,.s,.1 B, 2, 5) $ 629,963.99 $ 56,835.26 $ 686,799.24 ,.Total Infrastructure Costs $ 1,481,909.46 $522,231-03 $ 2,004,140.49-- The cost summary (opinion of probable construction costs) is only an order of magnitude estimate of infrastructure costs required for the Buick Creek Plat. We have not yet completed plans and details, so that costs are subject to change, Earthwork quantities and costs could vary, due to the poor soils conditions noted in the CTL and HP Soils reports. RA Nelsons unit Costs Were Predominately used for the estimate, which will vary based upon current economic conditions (as wells as other factors). An individual cast is an improvement that benefits only one party. A shared cost is an improvement that benefits more than one party, TfA01<;0 10 ",),(Z3 IiRNS'S -1 , is ets EXHIBIT C Subdivision Improvements Agreement for Lots 2, 3 and 5 CONDITIONS 1. Before commencement of any of the Work depicted on the Approved Plans for the actual construction of Improvements for Lot IA and Lot 113, Subdivider, District and GRNSS stipulate and agree that: (a) Tanavon, the District and GRNSS shall secure approval from the U.S. Army Corps of Engineers ( "Corps ") of the delineation of the wetlands areas within the Buck Creek PUD First Amendment, Corps approval of mitigation of wetlands impacts either on -site or from the Wetlands Bank, and shall obtain any required 404 Permit from the Corps for the construction activities proposed by the Approved Plans. Copies of all such documentation shall be submitted to the Town for acceptance by the Town Engineer. The Approved Plans may be updated with the approval of the Town Engineer to include any modifications required for wetlands delineation or mitigation required by the Corps. (b) Tanavon, the District and GRNSS shall obtain written approval of the Construction Plans for utilities from all utility providers and submit the approvals to the Town Engineer. (c) The Final Drainage Report shall be accepted by the Town Engineer. (d) Tanavon and GRNSS shall dedicate to the Town a fifteen (15) foot wide easement, generally following the "Buck Creek Connection" trail depicted on the map (dated 4/13/09) produced by the Town's Community Development Department through Lots 1 B, 2, and 3, Buck Creek PUD First Amendment, for the construction and use by the general public of a recreation path. No Lot Owner within the Buck Creek PUD First Amendment shall be responsible for constructing or maintaining this recreation path. Colorado law with respect to recreational trails shall be complied with by the Town and, to the extent permitted by law, Town shall indemnify Tanavon and GRNSS, their successors and assigns, against claims for injury, damage or loss by users of this recreation path. The Town anticipates constructing and maintaining the recreation path, subject to available funds and appropriations. Reference Ordinance 09 -08, Section 2.A. 2. Construction of Improvements for Lots 2, 3 and 5 pursuant to the Phase II Subdivision Improvements Agreement cannot start before the construction of Improvements for Lot 1 A and Lot 1 B pursuant to the Phase 1 Subdivision Improvements Agreement, but may be constructed concurrently with the Improvements for Lot 1 A and Lot 1B pursuant to the Phase I Subdivision Improvements Agreement (00174650. DOC / 4 ) 3. Prior to issuance of any building permit for Lot 2, Lot 3 or Lot 5, all of the Improvements for Lot 1 A and Lot I B pursuant to the Phase I Subdivision Improvements Agreement and all of the Improvements for Lots 2, 3 and 5 pursuant to the Phase II Subdivision Improvements Agreement shall be completed, inspected and accepted by the utility providers, and inspected and approved by the Town of Avon. 4. Prior to issuance of any building permit for Lots 2, 3 and 5, Buck Creek PUD First Amendment, construction drawings of all proposed retaining walls (including retaining walls necessary for Buck Creek Lane) and load calculations for retaining walls demonstrating slope stability shall be submitted to the Town for approval by the Town Engineer. Reference: Ordinance 09 -08, Section 2.13. 5. Lot IA and /or Lot 3 shall be constructed and shall receive a certificate of occupancy prior to issuance of any residential permits for Lot 1 B or Lot 2. Reference: Ordinance 09 -08, Section I.A. (00174650. DOC /4) 12 MEMO To: Thru: Legal Review: Approved By: From: Date: Honorable Mayor and Town Council Larry Brooks, Town Manager Eric Heil, Town Attorney Meryl Jacobs — Director of Recreation and Cultural Services Danita Chirichillo — Special Events Supervisor �c June 16, 2010 Re: World Triathlon Corporation Contract Summary: Attached for signature is the contract with World Triathlon Corporation (WTC) for the second annual IronKids Avon triathlon event scheduled for July 10 —11, 2010. The Town Attorney has reviewed and approved the contract adding the legal language required by the Town. The Town Attorney has asked that the following contract points be brought to council's attention: 4. Obligations and Undertakings of Host: b. No kids' triathlon for three years after hosting the event if the contract should expire or not be renewed. 9. License and Use of WTC's Trademarks and/or Service Marks: f. Restricts the use of the word "IRON" as it relates to trade mark. 15. Confidentiality: WTC has proposed language regarding confidentiality which does not conflict with the Colorado Open Records Act but places duties on the Town to preserve confidentialities to the extent not in conflict with CORA. Discussion: The recreation staff is in full swing regarding the operations, selling, marketing and promoting of the 2010 triathlon event. The Westin Riverfront Resort & Spa will be the host hotel for the event weekend. IronKids Avon, Colorado is targeting 500 youth athletes participating in one of three lengths depending on age. The swim portion of the event will take place in Nottingham Lake, the bike course is on closed roads near the park, finishing with a run through Nottingham Park. Category Age Swim Bike Run Junior 6-8 50 yards 2 mile 500 yards Intermediate 9-11 150 yards 4 mile 1 mile Senior 12-14 300 yards 8 mile 2 miles Financial Implications: The $9,500 rights fee to host a regional event is currently in the 2010 special events budget. Staff will work towards recouping any additional operating costs through sponsorship. Additional funds have been granted to support operations through the Holy Cross Community Enhancement Program and Eagle County Community Grants. Town Manager Comments: HOST VENUE SPONSORSHIP AGREEMENT This Host Agreement ( "Agreement ") is entered into this day of Mare; 2010 ( "Effective Date ") by and between WORLD TRIATHLON CORPORATION, a Florida, USA corporation, whose principal business address is 2701 North Rocky Point Drive, Suite 1250, Tampa, Florida 33607, (hereafter referred to as "WTC ") and TOWN OF AVON, a Colorado municipal corporation, with offices at 1 Lake Street, Avon, CO 81620 (hereafter referred to as "Host "). (WTC and Host are referred to herein individually as "Party" and collectively as the "Parties "). WITNESSETH: WHEREAS, WTC wishes to conduct an IronKids triathlon event, to be conducted over the course of two (2) days to include an IronKids Expo and an IronKids Avon triathlon race (the "Event ") to be held on July 10 and July 11, 2010 in Avon, Colorado at Nottingham Park and Lake; and WHEREAS, Host wishes to have WTC conduct the Event in Avon Colorado (the "Venue "), upon the terms and conditions provided for in this Agreement. NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, the Parties agree as follows: 1. The Event. WTC agrees to conduct the Event and Host grants to WTC the right to conduct the Event in and around the Venue upon the terms and conditions as provided for herein. 2. Term. The term of this Agreement shall commence on the Effective Date and continue through August 30, 2010 ( "Term "), unless sooner terminated in accordance with the provisions contained herein. For the year 2011, WTC provides to Host the right of first refusal to host an IronKids Event in Vail Valley, Colorado. 3. Host Sponsorship Fee. Host shall pay a host sponsorship fee to WTC in the amount of $9,500.00 USD, with fifty percent (50 %) due upon the execution of this Agreement, and fifty percent (50 %) due within thirty (30) days after the Event. Host agrees to make payments to WTC by method of check or wire transfer to WTC's designated financial institution. Wire transfer instructions are included herewith and attached hereto as Schedule "A ". 4. Obligations and Undertakings of Host. a. In consideration of WTC selecting the Venue as the site for conducting the Event, Host agrees to provide WTC those support services as more particularly described in Schedule "B" of this Agreement. b. Host agrees that in consideration of WTC staging the Event in the Venue, it shall not contract with any other party but WTC to produce a children's triathlon event in and around the Venue during the term of this Agreement.. and thereafter for three (3) years. Page 1 of 16 WTC's Initials: Host's Initials: 5. Oblimations and Undertakings of WTC. WTC shall further fulfill the specific obligations and undertakings identified in Schedule "C" hereto. 6. Additional Terms. a. The Parties agree to conduct a meeting following the Event to "debrief' regarding the Event, set forth the following year's plans, and review a report of the Event details and goals. b. WTC shall retain the rights to all imagery, including but not limited to, television broadcast or cablecast (live or tape - delay), radio broadcast, internet broadcast (audio or video), videotaping, filming and photography of the event which is the sole property of WTC and may not be reproduced, remarketed or otherwise distributed or publicly displayed without the written permission of WTC. WTC may, at its sole discretion, award any or all of these rights to third parties. C. The obligations and support services required by WTC of Host may be modified, changed or otherwise altered from time to time by WTC in its reasonable discretion, in consultation with a designated representative of Host. Such alterations must be made not less than seven (7) days prior to the applicable Event and shall be made in writing. d. WTC may in its reasonable discretion, in order to improve the Event, institute changes in the implementation or structure of the Event in any Event year. Provided, however, that WTC must provide reasonable written notice of such change to Host prior thereto, and no change shall be made to the date of any scheduled Event without the written consent of both Parties hereto. e. In order to ensure proper implementation of the Event, Host and its representatives agree to take instruction from WTC or any other person designated by WTC. In the event of a disagreement between Host and WTC regarding the obligations under this Agreement with regard to conducting the Event, WTC's decision shall be final and binding. 7. Representations and Warranties of Host. Host represents, warrants and covenants to WTC as follows: a. Host has the full right and legal authority to enter into and fully perform this Agreement in accordance with the terms and conditions contained herein. b. Host will comply with all applicable laws, rules and regulations with regard to its obligations under this Agreement. C. This Agreement, when executed and delivered by Host, will be its legal, valid and binding obligation enforceable against Host in accordance with the terms and conditions contained herein. Page 2 of 16 WTC's Initials: Host's Initials: d. The execution, delivery and performance of this Agreement by Host does not and will not violate or cause a breach of any other agreements or obligations to which it is a party or to which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith. e. Each of the foregoing representations, warranties and covenants shall be true at all times during the term hereof. 8. Representations and Warranties of WTC. WTC represents, warrants and covenants to Host as follows: a. WTC will comply with all applicable laws, rules and regulations with regard to its obligations under this Agreement. b. WTC represents and warrants that it has full right, power, and authority to enter into and to perform its obligations under this Agreement, and to grant Host all rights and interests as provided hereunder. C. WTC hereby represents and warrants that WTC is the sole owner or controls all of the rights granted hereunder in the Event and that it has full right, title and interest in and to the Event granted in this Agreement. 9. License and Use of WTC's Trademarks and /or Service Marks. a. WTC provides Host with the limited, non - assignable, non - transferable, non- exclusive license to use the IronKids and K -Dot trademarks and /or service marks (the "Marks "), in all reasonable forms of advertising and marketing. Any use of the Marks shall be in conjunction with the Trademark Standards and Use Guidelines set forth in Schedule "D ". The license granted herein shall be only for the Term of this Agreement and the territory of the license shall be the Venue and the immediate surroundings areas. WTC must approve all uses of the Marks prior to usage. b. WTC must approve in writing all Host's advertising, marketing, press releases, programs, websites, and all printed and electronic materials intended for public consumption prior to use. C. Host shall acknowledge in writing on its advertising and marketing materials the existence of this Agreement by use of the language: "IronKids is conducted by the World Triathlon Corporation and the IronKids and K -DOT trademarks are used with permission of the World Triathlon Corporation." d. Host may only use the Marks in connection with advertising and /or marketing materials relating to each Event during the Term of this Agreement, and may not utilize the Marks on any products, merchandise, event souvenirs, or other items unless pre- approved by Page 3 of 16 WTC's Initials: Host's Initials: WTC in writing, which approval may be granted or denied at WTC's sole and absolute discretion. e. Host may not authorize or license any third party to manufacture, sell, affix, or use any of the Marks on any product, merchandise, event race souvenirs, or other items during the Term of this Agreement. f. Host acknowledges that WTC is the owner of all the Marks, and Host shall not register any of the Marks, any service mark, trademark or a domain name that is similar in any manner to any of WTC's Marks., including, but not limited to, any mark or domain name containing the term "IRON" as associated with athletic competitions and related goods and services thereto. g. The Marks are and shall remain the property of WTC. Any and all rights under the Marks, copyrights, or other intellectual property of WTC shall inure to the benefit of WTC. 10. Indemnification. Host agrees to defend, indemnify and hold WTC and its affiliates and WTC's and its affiliates' respective officers, directors, equity holders, agents, employees, successors and assigns harmless from any and all claims, liabilities, costs, losses, demands, injuries, judgments, settlements, expenses and damages, including reasonable attorneys' fees, court costs, and other legal expenses, arising out of or in connection with: (a) any breach or alleged breach of any provision of this Agreement by Host or any representation or warranty made by Host in this Agreement; or (b) any act or omission to act of Host or any of Host's or its affiliates' respective officers, directors, equity holders, agents, employees and sponsors. 11. Records and Audit. Host agrees to keep complete and accurate books of account and records covering all transactions and other matters relating to this Agreement. WTC and /or its duly authorized representatives shall, after providing reasonable notice to Host, have the right to examine such books of account and records in Host's possession or under its control for the purpose of verifying any information provided or due hereunder and verifying compliance with the terms and conditions of this Agreement, and shall have free and full access thereto for such purposes and for the purpose of making copies thereof or extracts therefrom, which information shall be subject to the confidentiality obligations set forth in this Agreement. All such records shall be maintained and kept available for at least two (2) years after the expiration or termination of this Agreement. 12. Insurance. Host and WTC shall, throughout the Term of this Agreement, obtain and maintain its own comprehensive general liability insurance for each Event from a reputable insurance company for, without limitation, any and all claims of bodily injury, death, property damage, and advertising liability, and any and all litigation, arbitration and settlement costs, related to any claims for or by any Event participants, volunteers, referees, officials, scorekeepers, spectators, Event sponsors and/or Event staff with a minimum combined single limit equal to but not less than one million dollars ($1,000,000.00 USD) per occurrence for any one incident or accident, and two million dollars ($2,000,000.00 USD) aggregate. Each of the Parties may require the other to obtain such insurance in a greater amount or scope by providing Page 4 of 16 WTC's Initials: Host's Initials: notice to the other Party at least one hundred twenty (120) calendar days prior to the date of the Event. The Parties agree to have the other Party named as an additional insured in connection with each Event. Certificates evidencing the foregoing required insurance must be provided, upon request, to the other Party. 13. Termination. a. This Agreement may be terminated by either Party upon thirty (30) days written notice to the other Party in the event of a breach of a material provision of this Agreement by the other Party, including a description thereof to the breaching Party, provided that, during the thirty (30) day period, the breaching Party fails to cure such breach. b. WTC shall have the right to immediately terminate this Agreement by giving written notice to Host in the event that Host does any of the following: (i) files a petition in bankruptcy or is adjudicated bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if the Host discontinues its business or a receiver is appointed for the Host or for Host's business and such receiver is not discharged within thirty (30) days or (ii) breaches any of the provisions of this Agreement relating to the unauthorized assertion of rights in the Marks. Termination of this Agreement for any reason provided herein shall not relieve either Party from its obligation to perform up to the effective date of such termination. C. Except as provided otherwise herein, each Party hereto reserves all other rights and remedies hereunder and otherwise permitted by law, that have accrued at the date of termination of this Agreement and does not waive any obligation under this Agreement by reason of the exercise of such termination option. 14. Public Documents. Each Party acknowledges that the Host is a Colorado municipality which is subject to the Colorado Open Records Act and that this Agreement and other public documents related to this Agreement may be disclosed in'-pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, Colorado Revised Statute, to the extent that such statute applies. Furthermore, nothing contained in this Agreement shall be construed to require the Host to violate the Colorado Open Records Act and any conflict between this Agreement and the Colorado Open Records Act shall be interpreted to allow the Host to comply with the Colorado Open Records Act. 15. Confidentiality. a. In all cases subject to anew applicable to the Host with regard to open records (including but not limited to the Colorado Open Records Act), during the term of this Agreement, each Party shall keep confidential, and other than as provided herein shall not use or disclose, directly or indirectly, the terms and conditions of this Agreement, any trade secrets, confidential or proprietary information, or any other knowledge, information, documents or materials, owned, developed or possessed by the other Party, whether in tangible or intangible form, the confidentiality of which such other Party takes reasonable measures to protect. Each Page 5 of 16 WTC's Initials: Host's Initials: Party shall take any and all lawful measures to prevent the unauthorized use and disclosure of such information, and to prevent unauthorized persons or entities from obtaining or using such information. Each Party further agrees to refrain from directly or indirectly taking any action which would constitute or facilitate the unauthorized use or disclosure of such information. Each Party disclose such information to its officers and employees to the extent necessary to enable such Party to perform its obligations hereunder, provided, that such officers and employees have entered into an appropriate confidentialityagreement for secrecy and nonuse of such information which by its terms shall be enforceable by injunctive relief at the instance of the disclosing_ Party. Each Party shall be liable for any unauthorized use and disclosure of such information by its officers and employees. Should a Party be required to disclose such information in order to comply with applicable governmental acts, requirements or regulations or a court order, the other Party agrees to provide reasonable advance written notice to the other Party in order to provide reasonable advance notice of any such disclosure so that the Parties may use their reasonable efforts to secure confidential treatment of the information to be disclosed (whether through protective orders or otherwise) and to ensure that only the minimum amount of information necessary to comply with such requirements is disclosed. b. Notwithstanding the foregoing the provisions of section (a) hereof shall not apply to knowledge, information, documents or materials which the receiving Party can conclusively establish: (i) have entered the public domain without such Party's breach of any obligation owed to the disclosing Party; (ii) have become known to the receiving Party prior to the disclosing Party's disclosure of such information to such receiving Party; (iii) are permitted to be disclosed by the prior written consent of the disclosing Party(iv) have become known to the receiving Party from a source other than the disclosing Party other than by breach of an obligation of confidentiality owed to the disclosing Party; or (vi) are independently developed by the receiving Party without breach of this agreement. 4-5-.16. Assignment. This Agreement is personal to Host and may not be assigned or transferred without the prior written consent of WTC. This Agreement may be freely assigned by WTC. 4-6-.17. Relationship of the Parties. The Parties are acting herein as independent contractors. Nothing herein contained will create or be construed as creating a partnership, joint venture or agency relationship between the Parties. Each party acknowledges and agrees that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other Party in any way. Each Party will be solely responsible for all wages, income taxes, worker's compensation and any other requirements for all personnel it supplies pursuant to this Agreement. 4-18. Successor and Assigns. All of the terms of this Agreement will apply to, be binding upon and inure to the benefit of the Parties hereto, their successors, assigns, heirs and legal representatives, and all other persons claiming by, through or under them. 419. Limitation of Liability. Notwithstanding anything else in this Agreement or otherwise, in no event will WTC be liable to Host or any other person or entity with respect to any subject matter of this Agreement (including, without limitation, with respect to the license or any other Page 6 of 16 WTC's Initials: Host's Initials: rights granted by WTC under this Agreement) under any contract, negligence, strict liability or other legal or equitable theory for any (i) indirect, incidental, special or consequential damages, (ii) lost profits, lost business or lost savings, (iii) interruption of business, or (iv) loss of goodwill. The foregoing limitation applies regardless of whether the remedies provided for in this Agreement fail of their essential purpose and even if either Party has been advised of the possibility or probability of any such damages. 4-9.20. No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Host, its officials, employees, contractors, or agents, or any other person acting on behalf of the Host and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. ?421. Jurisdiction and Dispute Resolution. a. Governing Law. Notwithstanding the place where this Agreement may be executed by either party, this Agreement and any claim, controversy, dispute or other matter arising hereunder or related hereto (whether by contract, tort or otherwise) shall be governed in accordance with the laws of the State of Florida, United States of America, without regard to the conflict of laws provisions thereof. In any litigation arising out of or relating to this Agreement, the Parties agree that venue shall be in the United States District Court, Middle District of Florida, Tampa Division, or the Circuit Court located in Pinellas County, Florida. b. Mediation. If a dispute, claim or controversy, with the exception of claims for injunctive and /or other equitable relief for intellectual property violations, unfair competition and /or the use and /or unauthorized disclosure of trade secrets or confidential information ( "Dispute ") arises out of, relates to, or is in connection with this Agreement, any amendment of this Agreement or any breach of this Agreement, and if the Dispute cannot be settled through direct discussions between the Parties, the Parties agree first to try in good faith to settle the Dispute by mediation administered by the American Arbitration Association ( "AAA ") under its then current Commercial Mediation Rules before resorting to arbitration. An AAA mediator acceptable to both Parties knowledgeable in the field and commercial matters shall conduct the mediation. The mediation shall take place in Tampa, Florida, United States of America. Each Party shall bear its own costs with respect to such mediation, except that any fees charged by such mediator or AAA in connection with such mediation shall be allocated as set forth below. C. Arbitration. Any Dispute, with the exception of claims for injunctive and /or other equitable relief for intellectual property violations, unfair competition and/or the use and/or unauthorized disclosure of trade secrets or confidential information, arising out of, relating to or in connection with this Agreement, including any amendment of this Agreement, breach of this Agreement, questions regarding issues of jurisdiction, the existence, scope, validity, performance, interpretation, termination, as well as entitlement to and amount of attorneys' fees and costs to the prevailing Party, that cannot be settled through negotiation or mediation as set forth above, shall be referred to a sole arbitrator selected by the Parties within thirty (30) days of Page 7 of 16 WTC's Initials: Host's Initials: the mediation, or in the absence of such selection, to AAA arbitration as the sole remedy as to all matters in Dispute, administered by the AAA in accordance with applicable Arbitration Rules to include the Optional Rules for Emergency Measures of Protection and Optional Procedures for Large, Complex Commercial Disputes, as interpreted and governed by the Florida Arbitration Code. The venue of any such arbitration shall be Tampa, Florida, United States of America. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall not have authority to award punitive or other damages in excess of compensatory damages and each party irrevocably waives any claim thereto. d. Enforcement. Other than the costs and expenses of Mediation, if either Party brings any arbitration or other action under this Agreement (including, without limitation, any challenge or appeal), the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs (including, without limitation, the cost of such arbitration or other action). The Parties agree to authorize the arbitrator to determine both the entitlement and apportionment of such fees and costs. e. Mediation/Arbitration Charges. Each Party shall initially bear an equal share of the mediator's and arbitrator's compensation and administrative charges of the mediation or arbitration and shall make deposits with the American Arbitration Association of its share of the amounts requested by the American Arbitration Association. Failure or refusal by a Party to timely pay its share of the deposits for the mediator or arbitrator(s)' compensation and administrative charges shall constitute a waiver by that Party of its rights to be heard, present evidence, cross - examine witnesses, and assert counterclaims. Informing the mediator or arbitrator of a Party's failure to pay its share of the deposits for the mediator's or arbitrator's compensation and administrative charges for the purpose of implementing this provision shall not be deemed to affect the mediator's or arbitrator(s)' impartiality or ability to proceed with the mediation or arbitration. f. General. The requirement for mediation and arbitration shall not be deemed a waiver of any right of termination under this Agreement and the arbitrator is not empowered to act or make any award other than based solely on the rights and obligations of the Parties prior to any such termination. The Parties, their representatives, other participants and the mediator and arbitrator shall hold the existence, content and result of mediation and arbitration in confidence. Any provisions of this Agreement not found to be in compliance with applicable law may be waived without effect to the agreement by the Parties to arbitrate as provided herein. Notwithstanding the foregoing, in the event of breach by a Party of any of its obligations hereunder, the non- breaching Party may seek injunctive or other equitable relief in any court of competent jurisdiction. A request by a Party to a court for interim measures shall not be deemed a waiver of the obligation to mediate and arbitrate. X22. Rights and Remedies. The rights and remedies provided by this Agreement are given in addition to any other rights and remedies either Party may have by law, statute, ordinance or otherwise. All such rights and remedies are intended to be cumulative, and the use of any one right or remedy by either Parry shall not preclude or waive its right to any or all other rights or remedies. Page 8 of 16 WTC's Initials: Host's Initials: I 23. Force Majeure. In the event either Party is prevented from performing any of the obligations or duties required under this Agreement by reason of any event outside of such Party's control, including, without limitation, fire, weather, volcano, explosion, flood, epidemic, acts of God, war or other hostilities, strike, civil commotion, domestic or foreign governmental acts, orders or regulations ( "Force Majeure Event "), then the obligations or duties of such Party during the period of such Force Majeure Event, and for a reasonable time thereafter shall be suspended. If, due to a Force Majeure Event, the Event is canceled and cannot reasonably be rescheduled or the Event is not held in its entirety, then Host shall not be deemed to be in breach of this Agreement. In the case of cancellation due to a Force Majeure Event, the Parties agree to negotiate a date to reschedule the Event if practicable. 2x24. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been given if hand delivered, or mailed via certified mail, return receipt requested, sent by facsimile, or sent by overnight courier such as Federal Express or DHL, if sent to the parties as follows: If to Host: With Copy to: Town of Avon Eric Heil, Town Attorney 1 Lake Street Heil Law & Planning, LLC Avon, CO 81620 1499 Blake Street, Unit 1- GAttn: Larry Brooks, Town Manager Denver, CO 80202 (or to such other person or address as Host shall furnish to WTC in writing) If to WTC: World Triathlon Corporation 2701 North Rocky Point Drive, Suite 1250 Tampa, FL 33607 Attn: Lisa Herbst, General Counsel /Legal Department (or to such other person or address as WTC shall furnish to Host in writing) ?x.25. No Waiver of Rights. If either Party fails to enforce any of the provisions of this Agreement or any rights hereunder or fails to exercise any election provided in the Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of the Agreement. The failure of either Party to exercise any of these provisions, rights or elections will not preclude or prejudice such Party from later enforcing or exercising the same or any other provisions, rights or elections which it may have under the Agreement. X26. Severability. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. Page 9 of 16 WTC's Initials: Host's Initials: 2-627. No Oral Modifications. No modifications to this Agreement shall be binding upon the parties unless modified, amended, cancelled, renewed or extended in writing and signed by both parties. 228. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, between or among the parties, except as specifically provided herein. Except as explicitly set forth herein, there are no promises, conditions, representations, understanding, interpretations or terms of any kind as conditions or inducement to the execution hereof or in effect among the parties. 2-8-.29. Headings. The section headings included in this Agreement are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. 230. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original binding document but all of which shall constitute one and the same instrument. 38:31. Article X, Section 20 /TABOR. The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year last written below as mutual acceptance of the terms, conditions and consideration contained herein. WORLD TRIATHLON CORPORATION TOWN OF AVON Michelle Payette Director of IronKids Date: By Ron Wolfe Mayor Date: Page 10 of 16 WTC's Initials: Host's Initials: SCHEDULE A WIRING INSTRUCTIONS TO LICENSOR'S FINANCIAL INSTITUTION Bank Wire Transfer to: Bank Name: Bank of America, NY NY Routing Number: 026009593 Account Name: World Triathlon Corporation Account Number: 898023633213 SWIFT Code: BOFAUS3N Page 11 of 16 WTC's Initials: Host's Initials: SCHEDULE B Obligations and Undertakings of Host. For the Event, Host shall comply with providing the following, at no expense to WTC, unless otherwise agreed to in this Agreement, in its performance under this Agreement: ➢ Provide lifeguards for the swim portion in Nottingham Lake (not exceeding 6) ➢ Provide trash & recycle containers and removal for the site (excluding dumpsters) ➢ Provide a team for cone placement, road sweeping and road closure assistance. ➢ Complimentary electricity in park (where outlets pre- exist) ➢ Assist in IronKids Avon poster distribution in Avon and Vail (IronKids to supply posters) ➢ Have one designated staff member to present /speak at town council meetings on behalf of IronKids ➢ Assist in the coordination and communications between the different Town service departments ➢ Have one designated staff member to be on -site for the day before and day of the event ➢ To assist in communications plan for impact of race on the Town and its residents and hotels ➢ Host city rights fee for marketing of the event: $9,500.00 USD Page 12 of 16 WTC's Initials: Host's Initials: SCHEDULE C Obligations and Undertakino by WTC. For the Event WTC shall comply with providing the following, at no expense to Host, in its performance under this Agreement: ➢ Naming rights as official IronKids Avon sponsor ➢ Brand exposure through all IronKids print and electronic media relating to the event One partner - supplied article to be distributed as part of the monthly IronKids newsletter ➢ Brand placement on the IronKids Avon race course ➢ Town of Avon specific consumer research (survey) distributed directly through the IronKids database ➢ Opportunity to sell sponsorship against the event (regulations to be discussed) Provide all race operations to perform a safe and quality event including: Chip timing company (results), race announcer, registration process, triathlon clinic, race course (design, signs, cones), volunteers (in conjunction with Town of Avon assistance for call - out), staff (Swim, Bike, Run, Transition, Finish Line, Volunteer, Registration, Awards, Merchandise Coordinators), transition area, communications plan, finishers medals, t- shirts & bags, awards ceremony, media, etc. ➢ Provide all course and venue equipment (barricades, cones, bike racks, signage, finish line structure, light towers, tables, tents, etc.,) ➢ Contract and pay for required EMS and Police ➢ Coordinate with Town departments for effective communication plan, venue design, road closure plan, load - in/out plan ➢ Provide significant impact notices via door hangers, direct mail and electronic road signs Page 13 of 16 WTC's Initials: Host's Initials: SCHEDULE D Trademark Standards and Usage Guidelines • IRONKI • K,- sY Page 14 of 16 WTC's Initials: Host's Initials: Brand Logo Specifications World Triathlon Corporation's ( "WTC's) IRONKIDS and K -DOT trademarks (the "Marks ") must be used consistently and not altered. Modifications, variations and incorrect use of the Marks can dilute the distinctiveness of the Marks and create consumer confusion and are not permitted. You play a vital role in protecting the integrity of the Marks. Please familiarize yourself with the following Trademark Standards and Usage Guidelines and follow them diligently when using the Marks in connection with your retail marketing, advertising and promotions and licensed products. All uses of the Marks must be approved by WTC prior to use, including use on materials, products, apparel or other items. If you have any questions regarding the use of the IRONKIDS or K -DOT trademarks, please contact one of the following: Michelle Payette 813.868.5908 or Michelle(? ironman.com Lisa Herbst 813.868.5937 or Lisakironman.com Carolyn Richards 813.868.5922 or Carolyn(c.�ironman.com Approvals Process Mark Approval Process WTC must approve all uses of the Marks prior to usage, without exception. All approval requests for use of the Marks on all printed materials, manuals, products, catalogs, brochures, website content, or anything that contains a Mark are to be forwarded to the following: approvalsgironman. com Digital images of printed materials and websites, etc. should be included with your emailed approval requests. Samples Approval Process (If applicable) After the final Mark Approval Process is complete, and no later than forty -five (45) days prior to the sale, distribution, promotion or other public disclosure or exploitation of any such printed materials, manuals, products, catalogs, brochures, website content, or any item that contains the Marks, LICENSEE shall furnish to WTC, free of cost, for WTC's written approval, three (3) samples of such item. Any proposed item submitted to WTC's for its approval that is not approved by WTC in writing within fifteen (15) days after receipt thereof shall be deemed Page 15 of 16 WIC's Initials: Host's Initials: disapproved by WTC. The preferred method of providing these samples is via email in the form of a digital image or photograph of the item. Please forward all samples to the following: trademarksamples@ironman.com General Guidelines Listed below are guidelines for usage of the K -DOT and IRONKIDS logo on all items. 1. IRONKIDS must be a single word, never hyphenated. 2. "IronKids" is always capital letter "I" and capital letter "K" when used in title case. 3. The K -DOT in the IRONKIDS logo must be offset via color differentiation. 4. The IRONKIDS logo must be displayed in its entirety as described above, with no portion omitted. 4. The IRONKIDS logo may be reduced or enlarged as needed. 5. Nothing may be added or superimposed to the IRONKIDS logo. 6. WTC uses PMS Reflex 286 Blue with the K -DOT in the IRONKIDS logo and alone, and PMS 186 Red for the "IRON" "IDS" as part of the IRONKIDS logo. "IRON" and "IDS" must be printed in a solid color and the K -DOT must be in a different solid color. WTC must pre - approve the use of colors other than the standard Blue and Red. 7. The K -DOT may be used in a stand -alone form in PMS 286 Blue. 8. WTC must approve all uses of the IRONKIDS and K -DOT trademarks prior to usage. Trademark Claim Notice Notice must be given to the consuming public that World Triathlon Corporation (WTC) claims ownership of the IRONKIDS stylized logo and the K -DOT logo. Therefore, both of the following legal notices must appear on all packaging, printed materials and websites and should be no smaller than 6pt type. IRONKIDS® and K -DOT TM are trademarks of World Triathlon Corporation. Used here by permission. IRONKIDS® should be displayed using the ®. K -DOTTM should be displayed using the TM. Page 16 of 16 WTC's Initials: Host's Initials: HOST VENUE SPONSORSHIP AGREEMENT This Host Agreement ( "Agreement ") is entered into this day of , 2010 ( "Effective Date ") by and between WORLD TRIATHLON CORPORATION, a Florida, USA corporation, whose principal business address is 2701 North Rocky Point Drive, Suite 1250, Tampa, Florida 33607, (hereafter referred to as "WTC ") and TOWN OF AVON, a Colorado municipal corporation, with offices at 1 Lake Street, Avon, CO 81620 (hereafter referred to as "Host "). (WTC and Host are referred to herein individually as "Party" and collectively as the "Parties "). WITNESSETH: WHEREAS, WTC wishes to conduct an IronKids triathlon event, to be conducted over the course of two (2) days to include an IronKids Expo and an IronKids Avon triathlon race (the "Event ") to be held on July 10 and July 11, 2010 in Avon, Colorado at Nottingham Park and Lake; and WHEREAS, Host wishes to have WTC conduct the Event in Avon Colorado (the "Venue "), upon the terms and conditions provided for in this Agreement. NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, the Parties agree as follows: 1. The Event. WTC agrees to conduct the Event and Host grants to WTC the right to conduct the Event in and around the Venue upon the terms and conditions as provided for herein. 2. Term. The term of this Agreement shall commence on the Effective Date and continue through August 30, 2010 ( "Term "), unless sooner terminated in accordance with the provisions contained herein. For the year 2011, WTC provides to Host the right of first refusal to host an IronKids Event in Vail Valley, Colorado. 3. Host Sponsorship Fee. Host shall pay a host sponsorship fee to WTC in the amount of $9,500.00 USD, with fifty percent (50 %) due upon the execution of this Agreement, and fifty percent (50 %) due within thirty (30) days after the Event. Host agrees to make payments to WTC by method of check or wire transfer to WTC's designated financial institution. Wire transfer instructions are included herewith and attached hereto as Schedule "A ". 4. Obligations and Undertakings of Host. a. In consideration of WTC selecting the Venue as the site for conducting the Event, Host agrees to provide WTC those support services as more particularly described in Schedule "B" of this Agreement. b. Host agrees that in consideration of WTC staging the Event in the Venue, it shall not contract with any other party but WTC to produce a children's triathlon event in and around the Venue during the term of this Agreement and thereafter for three (3) years. Page 1 of 16 WTC's Initials: Host's Initials: 5. Obligations and Undertakings of WTC. WTC shall further fulfill the specific obligations and undertakings identified in Schedule "C" hereto. 6. Additional Terms. a. The Parties agree to conduct a meeting following the Event to "debrief' regarding the Event, set forth the following year's plans, and review a report of the Event details and goals. b. WTC shall retain the rights to all imagery, including but not limited to, television broadcast or cablecast (live or tape - delay), radio broadcast, internet broadcast (audio or video), videotaping, filming and photography of the event which is the sole property of WTC and may not be reproduced, remarketed or otherwise distributed or publicly displayed without the written permission of WTC. WTC may, at its sole discretion, award any or all of these rights to third parties. C. The obligations and support services required by WTC of Host may be modified, changed or otherwise altered from time to time by WTC in its reasonable discretion, in consultation with a designated representative of Host. Such alterations must be made not less than seven (7) days prior to the applicable Event and shall be made in writing. d. WTC may in its reasonable discretion, in order to improve the Event, institute changes in the implementation or structure of the Event in any Event year. Provided, however, that WTC must provide reasonable written notice of such change to Host prior thereto, and no change shall be made to the date of any scheduled Event without the written consent of both Parties hereto. e. In order to ensure proper implementation of the Event, Host and its representatives agree to take instruction from WTC or any other person designated by WTC. In the event of a disagreement between Host and WTC regarding the obligations under this Agreement with regard to conducting the Event, WIC's decision shall be final and binding. 7. Representations and Warranties of Host. Host represents, warrants and covenants to WTC as follows: a. Host has the full right and legal authority to enter into and fully perform this Agreement in accordance with the terms and conditions contained herein. b. Host will comply with all applicable laws, rules and regulations with regard to its obligations under this Agreement. C. This Agreement, when executed and delivered by Host, will be its legal, valid and binding obligation enforceable against Host in accordance with the terms and conditions contained herein. Page 2 of 16 WTC's Initials: Host's Initials: d. The execution, delivery and performance of this Agreement by Host does not and will not violate or cause a breach of any other agreements or obligations to which it is a party or to which it is bound, and no approval or other action by any governmental authority or agency is required in connection herewith. e. Each of the foregoing representations, warranties and covenants shall be true at all times during the term hereof. 8. Representations and Warranties of WTC. WTC represents, warrants and covenants to Host as follows: a. WTC will comply with all applicable laws, rules and regulations with regard to its obligations under this Agreement. b. WTC represents and warrants that it has full right, power, and authority to enter into and to perform its obligations under this Agreement, and to grant Host all rights and interests as provided hereunder. C. WTC hereby represents and warrants that WTC is the sole owner or controls all of the rights granted hereunder in the Event and that it has full right, title and interest in and to the Event granted in this Agreement. 9. License and Use of WTC's Trademarks and /or Service Marks. a. WTC provides Host with the limited, non- assignable, non- transferable, non- exclusive license to use the IronKids and K -Dot trademarks and /or service marks (the "Marks "), in all reasonable forms of advertising and marketing. Any use of the Marks shall be in conjunction with the Trademark Standards and Use Guidelines set forth in Schedule "D ". The license granted herein shall be only for the Term of this Agreement and the territory of the license shall be the Venue and the immediate surroundings areas. WTC must approve all uses of the Marks prior to usage. b. WTC must approve in writing all Host's advertising, marketing, press releases, programs, websites, and all printed and electronic materials intended for public consumption prior to use. C. Host shall acknowledge in writing on its advertising and marketing materials the existence of this Agreement by use of the language: "IronKids is conducted by the World Triathlon Corporation and the IronKids and K -DOT trademarks are used with permission of the World Triathlon Corporation." d. Host may only use the Marks in connection with advertising and /or marketing materials relating to each Event during the Term of this Agreement, and may not utilize the Marks on any products, merchandise, event souvenirs, or other items unless pre- approved by Page 3 of 16 WTC's Initials: Host's Initials: WTC in writing, which approval may be granted or denied at WTC's sole and absolute discretion. e. Host may not authorize or license any third party to manufacture, sell, affix, or use any of the Marks on any product, merchandise, event race souvenirs, or other items during the Term of this Agreement. f. Host acknowledges that WTC is the owner of all the Marks, and Host shall not register any of the Marks, any service mark, trademark or a domain name that is similar in any manner to any of WTC's Marks, including, but not limited to, any mark or domain name containing the term "IRON" as associated with athletic competitions and related goods and services thereto. g. The Marks are and shall remain the property of WTC. Any and all rights under the Marks, copyrights, or other intellectual property of WTC shall inure to the benefit of WTC. 10. Indemnification. Host agrees to defend, indemnify and hold WTC and its affiliates and WTC's and its affiliates' respective officers, directors, equity holders, agents, employees, successors and assigns harmless from any and all claims, liabilities, costs, losses, demands, injuries, judgments, settlements, expenses and damages, including reasonable attorneys' fees, court costs, and other legal expenses, arising out of or in connection with: (a) any breach or alleged breach of any provision of this Agreement by Host or any representation or warranty made by Host in this Agreement; or (b) any act or omission to act of Host or any of Host's or its affiliates' respective officers, directors, equity holders, agents, employees and sponsors. 11. Records and Audit. Host agrees to keep complete and accurate books of account and records covering all transactions and other matters relating to this Agreement. WTC and /or its duly authorized representatives shall, after providing reasonable notice to Host, have the right to examine such books of account and records in Host's possession or under its control for the purpose of verifying any information provided or due hereunder and verifying compliance with the terms and conditions of this Agreement, and shall have free and full access thereto for such purposes and for the purpose of making copies thereof or extracts therefrom, which information shall be subject to the confidentiality obligations set forth in this Agreement. All such records shall be maintained and kept available for at least two (2) years after the expiration or termination of this Agreement. 12. Insurance. Host and WTC shall, throughout the Term of this Agreement, obtain and maintain its own comprehensive general liability insurance for each Event from a reputable insurance company for, without limitation, any and all claims of bodily injury, death, property damage, and advertising liability, and any and all litigation, arbitration and settlement costs, related to any claims for or by any Event participants, volunteers, referees, officials, scorekeepers, spectators, Event sponsors and/or Event staff with a minimum combined single limit equal to but not less than one million dollars ($1,000,000.00 USD) per occurrence for any one incident or accident, and two million dollars ($2,000,000.00 USD) aggregate. Each of the Parties may require the other to obtain such insurance in a greater amount or scope by providing notice to the other Party at least one hundred twenty (120) calendar days prior to the date of the Page 4 of 16 WTC's Initials: Host's Initials: Event. The Parties agree to have the other Party named as an additional insured in connection with each Event. Certificates evidencing the foregoing required insurance must be provided, upon request, to the other Party. 13. Termination. a. This Agreement may be terminated by either Party upon thirty (30) days written notice to the other Party in the event of a breach of a material provision of this Agreement by the other Party, including a description thereof to the breaching Parry, provided that, during the thirty (30) day period, the breaching Party fails to cure such breach. b. WTC shall have the right to immediately terminate this Agreement by giving written notice to Host in the event that Host does any of the following: (i) files a petition in bankruptcy or is adjudicated bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or if the Host discontinues its business or a receiver is appointed for the Host or for Host's business and such receiver is not discharged within thirty (30) days or (ii) breaches any of the provisions of this Agreement relating to the unauthorized assertion of rights in the Marks. Termination of this Agreement for any reason provided herein shall not relieve either Party from its obligation to perform up to the effective date of such termination. C. Except as provided otherwise herein, each Party hereto reserves all other rights and remedies hereunder and otherwise permitted by law, that have accrued at the date of termination of this Agreement and does not waive any obligation under this Agreement by reason of the exercise of such termination option. 14. Public Documents. Each Party acknowledges that the Host is a Colorado municipality which is subject to the Colorado Open Records Act and that this Agreement and other public documents related to this Agreement may be disclosed pursuant to a request under the Colorado Open Records Act, § 24 -72 -203, Colorado Revised Statute, to the extent that such statute applies. Furthermore, nothing contained in this Agreement shall be construed to require the Host to violate the Colorado Open Records Act and any conflict between this Agreement and the Colorado Open Records Act shall be interpreted to allow the Host to comply with the Colorado Open Records Act. 15. Confidentiality. a. In all cases subject to any law applicable to the Host with regard to open records (including but not limited to the Colorado Open Records Act), during the term of this Agreement, each Party shall keep confidential, and other than as provided herein shall not use or disclose, directly or indirectly, the terms and conditions of this Agreement, any trade secrets, confidential or proprietary information, or any other knowledge, information, documents or materials, owned, developed or possessed by the other Party, whether in tangible or intangible form, the confidentiality of which such other Party takes reasonable measures to protect. Each Party shall take any and all lawful measures to prevent the unauthorized use and disclosure of Page 5 of 16 WTC's Initials: Host's Initials: such information, and to prevent unauthorized persons or entities from obtaining or using such information. Each Party further agrees to refrain from directly or indirectly taking any action which would constitute or facilitate the unauthorized use or disclosure of such information. Each Party may disclose such information to its officers and employees to the extent necessary to enable such Party to perform its obligations hereunder; provided, that such officers and employees have entered into an appropriate confidentiality agreement for secrecy and nonuse of such information which by its terms shall be enforceable by injunctive relief at the instance of the disclosing Party. Each Party shall be liable for any unauthorized use and disclosure of such information by its officers and employees. Should a Party be required to disclose such information in order to comply with applicable governmental acts, requirements or regulations or a court order, the other Party agrees to provide reasonable advance written notice to the other Party in order to provide reasonable advance notice of any such disclosure so that the Parties may use their reasonable efforts to secure confidential treatment of the information to be disclosed (whether through protective orders or otherwise) and to ensure that only the minimum amount of information necessary to comply with such requirements is disclosed. b. Notwithstanding the foregoing, the provisions of section (a) hereof shall not apply to knowledge, information, documents or materials which the receiving Party can conclusively establish: (i) have entered the public domain without such Party's breach of any obligation owed to the disclosing Party; (ii) have become known to the receiving Party prior to the disclosing Party's disclosure of such information to such receiving Party; (iii) are permitted to be disclosed by the prior written consent of the disclosing Party; (iv) have become known to the receiving Party from a source other than the disclosing Party other than by breach of an obligation of confidentiality owed to the disclosing Party; or (vi) are independently developed by the receiving Party without breach of this agreement. 16. Assignment. This Agreement is personal to Host and may not be assigned or transferred without the prior written consent of WTC. This Agreement may be freely assigned by WTC. 17. Relationship of the Parties. The Parties are acting herein as independent contractors. Nothing herein contained will create or be construed as creating a partnership, joint venture or agency relationship between the Parties. Each party acknowledges and agrees that it neither has nor will give the appearance or impression of having any legal authority to bind or commit the other Party in any way. Each Party will be solely responsible for all wages, income taxes, worker's compensation and any other requirements for all personnel it supplies pursuant to this Agreement. 18. Successor and Assigns. All of the terms of this Agreement will apply to, be binding upon and inure to the benefit of the Parties hereto, their successors, assigns, heirs and legal representatives, and all other persons claiming by, through or under them. 19. Limitation of Liability. Notwithstanding anything else in this Agreement or otherwise, in no event will WTC be liable to Host or any other person or entity with respect to any subject matter of this Agreement (including, without limitation, with respect to the license or any other rights granted by WTC under this Agreement) under any contract, negligence, strict liability or Page 6 of 16 WTC's Initials: Host's Initials: other legal or equitable theory for any (i) indirect, incidental, special or consequential damages, (ii) lost profits, lost business or lost savings, (iii) interruption of business, or (iv) loss of goodwill. The foregoing limitation applies regardless of whether the remedies provided for in this Agreement fail of their essential purpose and even if either Party has been advised of the possibility or probability of any such damages. 20. No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Host, its officials, employees, contractors, or agents, or any other person acting on behalf of the Host and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 21. Jurisdiction and Dispute Resolution. a. Governing Law. Notwithstanding the place where this Agreement may be executed by either party, this Agreement and any claim, controversy, dispute or other matter arising hereunder or related hereto (whether by contract, tort or otherwise) shall be governed in accordance with the laws of the State of Florida, United States of America, without regard to the conflict of laws provisions thereof. In any litigation arising out of or relating to this Agreement, the Parties agree that venue shall be in the United States District Court, Middle District of Florida, Tampa Division, or the Circuit Court located in Pinellas County, Florida. b. Mediation. If a dispute, claim or controversy, with the exception of claims for injunctive and /or other equitable relief for intellectual property violations, unfair competition and /or the use and /or unauthorized disclosure of trade secrets or confidential information ( "Dispute ") arises out of, relates to, or is in connection with this Agreement, any amendment of this Agreement or any breach of this Agreement, and if the Dispute cannot be settled through direct discussions between the Parties, the Parties agree first to try in good faith to settle the Dispute by mediation administered by the American Arbitration Association ( "AAA ") under its then current Commercial Mediation Rules before resorting to arbitration. An AAA mediator acceptable to both Parties knowledgeable in the field and commercial matters shall conduct the mediation. The mediation shall take place in Tampa, Florida, United States of America. Each Party shall bear its own costs with respect to such mediation, except that any fees charged by such mediator or AAA in connection with such mediation shall be allocated as set forth below. C. Arbitration. Any Dispute, with the exception of claims for injunctive and /or other equitable relief for intellectual property violations, unfair competition and /or the use and /or unauthorized disclosure of trade secrets or confidential information, arising out of, relating to or in connection with this Agreement, including any amendment of this Agreement, breach of this Agreement, questions regarding issues of jurisdiction, the existence, scope, validity, performance, interpretation, termination, as well as entitlement to and amount of attorneys' fees and costs to the prevailing Party, that cannot be settled through negotiation or mediation as set forth above, shall be referred to a sole arbitrator selected by the Parties within thirty (30) days of the mediation, or in the absence of such selection, to AAA arbitration as the sole remedy as to all Page 7 of 16 WTC's Initials: Host's Initials: matters in Dispute, administered by the AAA in accordance with applicable Arbitration Rules to include the Optional Rules for Emergency Measures of Protection and Optional Procedures for Large, Complex Commercial Disputes, as interpreted and governed by the Florida Arbitration Code. The venue of any such arbitration shall be Tampa, Florida, United States of America. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall not have authority to award punitive or other damages in excess of compensatory damages and each party irrevocably waives any claim thereto. d. Enforcement. Other than the costs and expenses of Mediation, if either Party brings any arbitration or other action under this Agreement (including, without limitation, any challenge or appeal), the prevailing Party shall be entitled to recover reasonable attorneys' fees and costs (including, without limitation, the cost of such arbitration or other action). The Parties agree to authorize the arbitrator to determine both the entitlement and apportionment of such fees and costs. e. Mediation/Arbitration Charges. Each Party shall initially bear an equal share of the mediator's and arbitrator's compensation and administrative charges of the mediation or arbitration and shall make deposits with the American Arbitration Association of its share of the amounts requested by the American Arbitration Association. Failure or refusal by a Party to timely pay its share of the deposits for the mediator or arbitrator(s)' compensation and administrative charges shall constitute a waiver by that Party of its rights to be heard, present evidence, cross - examine witnesses, and assert counterclaims. Informing the mediator or arbitrator of a Party's failure to pay its share of the deposits for the mediator's or arbitrator's compensation and administrative charges for the purpose of implementing this provision shall not be deemed to affect the mediator's or arbitrator(s)' impartiality or ability to proceed with the mediation or arbitration. f. General. The requirement for mediation and arbitration shall not be deemed a waiver of any right of termination under this Agreement and the arbitrator is not empowered to act or make any award other than based solely on the rights and obligations of the Parties prior to any such termination. The Parties, their representatives, other participants and the mediator and arbitrator shall hold the existence, content and result of mediation and arbitration in confidence. Any provisions of this Agreement not found to be in compliance with applicable law may be waived without effect to the agreement by the Parties to arbitrate as provided herein. Notwithstanding the foregoing, in the event of breach by a Party of any of its obligations hereunder, the non - breaching Party may seek injunctive or other equitable relief in any court of competent jurisdiction. A request by a Party to a court for interim measures shall not be deemed a waiver of the obligation to mediate and arbitrate. 22. Rights and Remedies. The rights and remedies provided by this Agreement are given in addition to any other rights and remedies either Party may have by law, statute, ordinance or otherwise. All such rights and remedies are intended to be cumulative, and the use of any one right or remedy by either Party shall not preclude or waive its right to any or all other rights or remedies. 23. Force Maieure. In the event either Party is prevented from performing any of the obligations or duties required under this Agreement by reason of any event outside of such Page 8 of 16 WTC's Initials: Host's Initials: Party's control, including, without limitation, fire, weather, volcano, explosion, flood, epidemic, acts of God, war or other hostilities, strike, civil commotion, domestic or foreign governmental acts, orders or regulations ( "Force Majeure Event "), then the obligations or duties of such Party during the period of such Force Majeure Event, and for a reasonable time thereafter shall be suspended. If, due to a Force Majeure Event, the Event is canceled and cannot reasonably be rescheduled or the Event is not held in its entirety, then Host shall not be deemed to be in breach of this Agreement. In the case of cancellation due to a Force Majeure Event, the Parties agree to negotiate a date to reschedule the Event if practicable. 24. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been given if hand delivered, or mailed via certified mail, return receipt requested, sent by facsimile, or sent by overnight courier such as Federal Express or DHL, if sent to the parties as follows: If to Host: With Copy to: Town of Avon Eric Heil, Town Attorney 1 Lake Street Heil Law & Planning, LLC Avon, CO 81620 1499 Blake Street, Unit 1- GAttn: Larry Brooks, Town Manager Denver, CO 80202 (or to such other person or address as Host shall furnish to WTC in writing) If to WTC: World Triathlon Corporation 2701 North Rocky Point Drive, Suite 1250 Tampa, FL 33607 Attn: Lisa Herbst, General Counsel /Legal Department (or to such other person or address as WTC shall furnish to Host in writing) 25. No Waiver of Rights. If either Party fails to enforce any of the provisions of this Agreement or any rights hereunder or fails to exercise any election provided in the Agreement, it will not be considered to be a waiver of those provisions, rights or elections or in any way affect the validity of the Agreement. The failure of either Party to exercise any of these provisions, rights or elections will not preclude or prejudice such Party from later enforcing or exercising the same or any other provisions, rights or elections which it may have under the Agreement. 26. Severability. If any term, clause, or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement. 27. No Oral Modifications. No modifications to this Agreement shall be binding upon the parties unless modified, amended, cancelled, renewed or extended in writing and signed by both parties. Page 9 of 16 WTC's Initials: Host's Initials: 28. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior agreements, arrangements and understandings, written or oral, between or among the parties, except as specifically provided herein. Except as explicitly set forth herein, there are no promises, conditions, representations, understanding, interpretations or terms of any kind as conditions or inducement to the execution hereof or in effect among the parties. 29. Headings. The section headings included in this Agreement are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement. 30. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original binding document but all of which shall constitute one and the same instrument. 31. Article X, Section 20 /TABOR. The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year last written below as mutual acceptance of the terms, conditions and consideration contained herein. WORLD TRIATHLON CORPORATION TOWN OF AVON I'M Michelle Payette Director of IronKids in Date: Date: Ron Wolfe Mayor Page 10 of 16 WTC's Initials: Host's Initials: SCHEDULE A WIRING INSTRUCTIONS TO LICENSOR'S FINANCIAL INSTITUTION Bank Wire Transfer to: Bank Name: Bank of America, NY NY Routing Number: 026009593 Account Name: World Triathlon Corporation Account Number: 898023633213 SWIFT Code: BOFAUS3N Page 11 of 16 WTC's Initials: Host's Initials: SCHEDULE B Obligations and Undertakings of Host. For the Event, Host shall comply with providing the following, at no expense to WTC, unless otherwise agreed to in this Agreement, in its performance under this Agreement: ➢ Provide lifeguards for the swim portion in Nottingham Lake (not exceeding 6) ➢ Provide trash & recycle containers and removal for the site (excluding dumpsters) ➢ Provide a team for cone placement, road sweeping and road closure assistance. ➢ Complimentary electricity in park (where outlets pre- exist) ➢ Assist in IronKids Avon poster distribution in Avon and Vail (IronKids to supply posters) ➢ Have one designated staff member to present /speak at town council meetings on behalf of IronKids ➢ Assist in the coordination and communications between the different Town service departments ➢ Have one designated staff member to be on -site for the day before and day of the event ➢ To assist in communications plan for impact of race on the Town and its residents and hotels ➢ Host city rights fee for marketing of the event: $9,500.00 USD Page 12 of 16 WTC's Initials: Host's Initials: SCHEDULE C Obligations and Undertakings by WTC. For the Event WTC shall comply with providing the following, at no expense to Host, in its performance under this Agreement: ➢ Naming rights as official IronKids Avon sponsor ➢ Brand exposure through all IronKids print and electronic media relating to the event ➢ One partner - supplied article to be distributed as part of the monthly IronKids newsletter ➢ Brand placement on the IronKids Avon race course ➢ Town of Avon specific consumer research (survey) distributed directly through the IronKids database ➢ Opportunity to sell sponsorship against the event (regulations to be discussed) ➢ Provide all race operations to perform a safe and quality event including: Chip timing company (results), race announcer, registration process, triathlon clinic, race course (design, signs, cones), volunteers (in conjunction with Town of Avon assistance for call - out), staff (Swim, Bike, Run, Transition, Finish Line, Volunteer, Registration, Awards, Merchandise Coordinators), transition area, communications plan, finishers medals, t- shirts & bags, awards ceremony, media, etc. ➢ Provide all course and venue equipment (barricades, cones, bike racks, signage, finish line structure, light towers, tables, tents, etc.,) ➢ Contract and pay for required EMS and Police ➢ Coordinate with Town departments for effective communication plan, venue design, road closure plan, load - in/out plan ➢ Provide significant impact notices via door hangers, direct mail and electronic road signs Page 13 of 16 WTC's Initials: Host's Initials: SCHEDULE D Trademark Standards and Usage Guidelines • K Page 14 of 16 WIC's Initials: Host's Initials: Brand Logo Specifications World Triathlon Corporation's ( "WTC's) IRONKIDS and K -DOT trademarks (the "Marks ") must be used consistently and not altered. Modifications, variations and incorrect use of the Marks can dilute the distinctiveness of the Marks and create consumer confusion and are not permitted. You play a vital role in protecting the integrity of the Marks. Please familiarize yourself with the following Trademark Standards and Usage Guidelines and follow them diligently when using the Marks in connection with your retail marketing, advertising and promotions and licensed products. All uses of the Marks must be approved by WTC prior to use, including use on materials, products, apparel or other items. If you have any questions regarding the use of the IRONKIDS or K -DOT trademarks, please contact one of the following: Michelle Payette 813.868.5908 or Michellegironman.com Lisa Herbst 813.868.5937 or Lisa@iromnan.com Carolyn Richards 813.868.5922 or Carolyngironman.com Approvals Process Mark Approval Process WTC must approve all uses of the Marks prior to usage, without exception. All approval requests for use of the Marks on all printed materials, manuals, products, catalogs, brochures, website content, or anything that contains a Mark are to be forwarded to the following: approval s gironman. c om Digital images of printed materials and websites, etc. should be included with your emailed approval requests. Samples Approval Process (If applicable) After the final Mark Approval Process is complete, and no later than forty -five (45) days prior to the sale, distribution, promotion or other public disclosure or exploitation of any such printed materials, manuals, products, catalogs, brochures, website content, or any item that contains the Marks, LICENSEE shall furnish to WTC, free of cost, for WTC's written approval, three (3) samples of such item. Any proposed item submitted to WTC's for its approval that is not approved by WTC in writing within fifteen (15) days after receipt thereof shall be deemed Page 15 of 16 WTC's Initials: Host's Initials: disapproved by WTC. The preferred method of providing these samples is via email in the form of a digital image or photograph of the item. Please forward all samples to the following: trademarksamples@ironman.com General Guidelines Listed below are guidelines for usage of the K -DOT and IRONKIDS logo on all items. 1. IRONKIDS must be a single word, never hyphenated. 2. "IronKids" is always capital letter "I" and capital letter "K" when used in title case. 3. The K -DOT in the IRONKIDS logo must be offset via color differentiation. 4. The IRONKIDS logo must be displayed in its entirety as described above, with no portion omitted. 4. The IRONKIDS logo may be reduced or enlarged as needed. 5. Nothing may be added or superimposed to the IRONKIDS logo. 6. WTC uses PMS Reflex 286 Blue with the K -DOT in the IRONKIDS logo and alone, and PMS 186 Red for the "IRON" "IDS" as part of the IRONKIDS logo. "IRON" and "IDS" must be printed in a solid color and the K -DOT must be in a different solid color. WTC must pre- approve the use of colors other than the standard Blue and Red. 7. The K -DOT may be used in a stand -alone form in PMS 286 Blue. 8. WTC must approve all uses of the IRONKIDS and K -DOT trademarks prior to usage. Trademark Claim Notice Notice must be given to the consuming public that World Triathlon Corporation (WTC) claims ownership of the IRONKIDS stylized logo and the K -DOT logo. Therefore, both of the following legal notices must appear on all packaging, printed materials and websites and should be no smaller than 6pt type. IRONKIDS® and K -DOT TM are trademarks of World Triathlon Corporation. Used here by permission. IRONKIDS° should be displayed using the °. K -DOT TM should be displayed using the TM Page 16 of 16 WTC's Initials: Host's Initials: HEIL LAW & PLANNING, LLC MEMORANDUM TO: Honorable Mayor Wolfe and Town Council members CC: Larry Brooks, Town Manager FROM: Eric Heil, Town Attorney DATE: June 16, 2010 SUBJECT: Ordinance No. 10 -10 Amending Chapter 3.12 Summary: Ordinance No. 10 -10 amends Chapter 3.12 Real Property Transfer Tax. The two amendments include (1) updating the exemption for transfers to, from and between business entities where no consideration is provided, and (2) revising Section 3.12.070 regarding applications and appeals. Revisions were made to the ordinance presented on first reading as moved and directed by Town Council. The attached ordinance is a legal black -line which identifies the changes approved by Town Council on first reading. 3.12.060(5): The revisions to Section 3.12.060(5) expand this definition to include transfers from a business entity to an individual where no change in the proportion of ownership occurs (i.e. 100% owner of property to 100% owner of entity which owns property). The Town has received numerous applications which include transfers to and from partnerships and limited liability companies that are related to estate planning and federal income tax planning but where no consideration is provided. The definition is also revised to acknowledge limited liability companies. 3.12.070: The revisions to Section 3.12.070 address the procedures and review criteria for processing applications for Exemption from Real Property Transfer Taax. The revisions are significant such that a red -line strike -out is not practical. Substantive revisions are highlighted as follows: • 3.12.070(a) An application must be submitted and approved for all transfers which claim exemption. An absolute deadline to file an application is established as 75 days after the transfer. • 3.12.070(b) The Town Manager may determine the form of the application (there is no need to include a draft of the form of application in the municipal code). • 3.12.070(c) Town Manager has 30 days to review an application rather than the current 10 days. Failure to review no longer results in an automatic approval; however, failure to review will enable the applicant to appeal directly to the Town Council. Heil Law & Planning, IIC Eric Heil, Esq_ A.I.C.P. 1499 Blake Street, Unit 1 -G Tel: 303.975.6120 Denver, CO 80202 eheil @avon.org Town Council RE: Ord 10 -10 June 16, 2010 Page 2 of 2 • 3.12.070(d) The timeframe for Town Council to act upon an appeal is revised to simply state that the Council shall act on an appeal within 45 days of receipt by the Town. • 3.12.070(e) False /inaccurate information voids an approval of an application. • 3.12.070(f) Duration of Approval is specified to address approvals which granted prior to a transfer. • 3.12.070(g) The ability to adopt fees for the processing of applications has been added. Based upon our experience with review of RETT exemption applications, a fee in the range of $75 -$125 would be appropriate to cover the Town's cost to process these applications. Legal Issues: The amendments proposed in Ordinance No. 10 -10 do not present any "tax policy changes" which would require voter authorization under TABOR. Requested Town Council Action: Approval of first reading of Ordinance No. 10 -10. Thanks, Eric TOWN OF AVON, COLORADO ORDINANCE 10 -10 SERIES OF 2010 AN ORDINANCE CHAPTER 3.12 OF THE AVON MUNICIPAL CODE WHEREAS, the Town of Avon ( "Town ") is a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and WHEREAS, the Town imposes a transfer tax on certain transfers of real property in the Town of Avon; and WHEREAS, the Town desires to amend the exemption concerning transfers to and from business entities for no consideration to reflect business organization practices and desires to amend the requirements and procedures for processing of applications for exemptions; 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 through the orderly and efficient administration of real property transfer tax collections and processing of applications for exemption thereto; WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of 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 this ordinance; NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendments to Chapter 3.12. Chapter 3.12 of the Avon Municipal Code is amended as follows: A. Section 3.12.060(5) is repealed in its entirety and reenacted to read as follows: "(5) Transfers made pursuant to capital investment, reorganization, merger, consolidation, liquidation, dissolution or termination of corporations, partnerships, limited liability companies, trusts, or other business entities recognized in Colorado for no consideration other than acquisition or cancellation or surrender of stock or percentage ownership interest in such business entity, ifto the extent that the relative ownership interest of such persons in the real property Ord 2010 -10 RETT Application Page 1 of 5 VIV2 6- 316 -10 or in the percentage ownership of the business entity are the same after the transfer as immediately before the transfer and there is no monetary consideration;" for that portion of the transfer;" 13. Section 3.12.070 is repealed in its entirety and reenacted to read as follows: "3.12.070 Application for exemption — Appeal. (a) Application Required. No transfer of real property shall be exempt from the imposition of the real estate transfer tax imposed in Section 3.12.030 unless a complete application for exemptions is filed with the Town and such application is approved by the Town. An application may be filed prior to a transfer of real property or within seventy -five (75) days after the transfer of real property. No application for Exemption from Real Property Transfer Tax shall be received and no such application shall be approved if submitted to the Town more than seventy - five (75) after the date of transfer. (b) Form of Application. The form of Application for Exemption from Real Property Transfer Tax, the form for an appeal, and any other forms related to this Chapter shall be determined by the Town Manager. The form of Application shall require the applicant to provide all information necessary to determine if such application complies with the definition and intent of the exemptions set forth in Section 3.12.060 above. (c) Application Review. The Town Manager, or designee, shall review applications for Exemption from Real Property Transfer Tax within thirty (30) days of receipt of a complete application. The failure of the Town Manager, or designee, to review an application for Exemption from Real Property Transfer Tax within thirty (30) days shall not be deemed to constitute an approval of an application for Exemption from Real Property Transfer Tax; however, the app}ie-tionapplicant may elect to appeal the application directly to the Town Council according to the procedures set forth in sub - section (d) below. If the Town Manager, or designee, determines that the application does not include adequate information to determine whether the application complies with an exemption stated in Section 3.12.060 of the Avon Municipal Code, the Town shall send a communication to the applicant stating that the application ear neither'�° appr-eved norshall be denied unless the applicant provides additional information ands shall state the required information neeessar-y to complete review and shall provide a maximum of thirty 30) days for the application. Once heapplicant to provide additional information is received, the. The Town Manager, or designee, shall review the supplemented appli^ additional information which is timely submitted within thirty (30) days of receipt. The Town Manager, or designee, shall approve, partially approve, or deny the application in writing based upon compliance with the exemptions, or the intent of the exemptions, set forth in Section 3.12.060. Inadequate or inaccurate information which does not Ord 2010 -10 RETT Application Page 2 of 5 V4V2 6- 316 -10 demonstrate compliance with the exemptions set forth in Section 3.12.060 shall be grounds for denial of an application. (d) Appeal to Council. Any person whose application for Exemption from Real Property Transfer Tax is not acted upon with the timeframe set forth in sub- paragraph above or whose application is denied or partially approved may appeal such decision to the Town Council in accordance with the procedures and requirements of this Section 3.12.070. The applicant shall file a written appeal in writing with the Town Clerk within thirty (30) days after the date of transmittal of the decision of the Town Manager, or designee, to deny such application. The failure to file a written appeal within thirty (30) days after the date of transmittal of the decision to deny the application shall bar any further consideration of the application, shall bar any appeal to the Town Council, and shall bar any judicial review by a Colorado court. The written appeal shall state the reasons for the appeal. An appeal which is filed timely shall be considered and acted upon by the Town Council within forty -five (45) days after the date of receipt. The Town shall provide at least three (3) days prior notice to the applicant stating the date, time and location where the Town Council will consider the appeal. The decision of the Town Council shall be in writing. The Town Council shall determine whether to approve, partially approve, or deny the application based on upon compliance with the exemptions, or the intent of the exemptions, set forth in Section 3.12.060. Inadequate or inaccurate information which does not demonstrate compliance with the exemptions set forth in Section 3.12.060 shall be grounds for denial of an application. The failure by the Town Council to hear and decide an appeal within forty -five (45) days after the receipt of the appeal shall result in the approval of the application. (e) False or Inaccurate Information. Any approval of an application for Exemption from Real Property Transfer Tax which is based upon false or inaccurate information provided by the applicant shall be void ab initio and such transfer shall be subject to all real property transfer tax imposed along with penalties and interest calculated from the date of such transfer. (f) Duration of Approval. An approval for Exemption from Real Property Transfer Tax which is granted prior to a transfer shall be valid for seventy -five (75) days and shall then expire if the transfer has not occurred. (f) Fees. The Town Council may adopt a resolution setting fees for the processing and reviewing of applications and appeals as is determined reasonably necessary to recover the costs incurred by the Town." 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 2010 -10 RETT Application Page 3 of 5 W�'Q 6- 316 -10 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 seven 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. [signature page follows] Ord 2010 -10 RETT Application Page 4 of 5 1 V2 6- 316 -10 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for June 22, 2010 at the Council Chambers of the Avon Municipal Building, located at one Lake Street, Avon, Colorado, on June 8, 2010. Ronald C. Wolfe, 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 June 8, 2010. Ronald C. Wolfe, 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 Ord 2010 -10 RETT Application Page 5 of 5 IV2 6- 31_6 -10 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager From: Eric Heil, Town Attorney Scott Wright, Assistant Town Manager /Finance Sally Veccio, Assistant Town Manager /Community Developmer Jennifer Strehler, Director of Public Works and Transportation Justin Hildreth, Town Engineer Jaime Walker, Community Relations Officer Date: June 22, 2010 Re: Resolution 10 -16. Referral of Connect Avon Now Projectto a Public Vote Connect Avon Now (CAN) is a package of local improvements to mass transit, pedestrian and bicycle trails, and parking which would allow Avon to build toward the community's vision for great connectivity and an economically vibrant downtown. Work on the CAN project was initiated in March 2009. The goal was to find a new revenue source to stabilize the Avon Transit's budget and allow for consistency of bus service and route expansion to areas of need. It quickly became apparent to the Council that pedestrian and bicycle connections were also needed to link transit stops and neighborhoods. Then, as a result of discussions related to land use and urban renewal considerations, Town Council requested inclusion of a public parking facility in Connect Avon Now project because it is seen as an important public improvement and catalyst to promoting the type of compact, mixed use development that is essential to creating the vibrant, community core envisioned in Avon Comprehensive Plan. Community members confirmed during focus group discussions held in March 2010 that the proposed improvements to transit, trails, and parking support each other in creating better connectivity and mobility within the town. To date, the project has included financial and legal analysis from Stan Bernstein and Associates and Piper Jaffrey, LLC. It is important to understand that the improvements included in the Connect Avon Now Project do not have an alternative source of funding and are unlikely to occur unless additional funding sources are approved by the public. During this meeting, the Town Council will decide whether to refer the project to a public vote for the November 2010 election. The goal of this memo is to provide sufficient information so that the Town Council can make an informed decision. Page 1 Previous Council Actions: Approximately 20 meetings with the public and /or the Avon Town Council have been held on the Connect Avon Now Project specifically. See attached for chronology of previous Council Actions. Background A variety of transportation improvements were identified during preparation of the Avon Comprehensive Plan (2006), The East Town Center District Plan (2006), The West Town Center Investment Plan(2007), The Community Survey (2008), and the Avon Comprehensive Transportation Plan(2009). These plans support the need to make Avon a more walkable, urban - village community where commercial areas, affordable housing, and recreational amenities are easily accessible without a car. The town has spent over $900,000 in outsourced consulting costs for these studies - all of which are based on a transit - oriented land plan with centralized parking in the town core. Feedback provided by the community during preparation of these foundational plans was consistent with purpose and scope of this Connect Avon Now Project. The Avon Comprehensive Transportation Plan provided the engineering and cost - estimate basis of the specific project components included in the Connect Avon Now Project. That engineering document was developed from the broad vision and goal statements adopted with Comprehensive Plan. Where the Transportation Plan included recommendations for improvements needed through 2035 and costing over $100 million, the Town Council decided to scope the Connect Avon Now Project to focus on those improvements that are most critically needed within the next 10 -15 years and can realistically be funded through new, voter - approved revenue sources. Discussion This memo discusses the following: 1. a brief overview of the project 2. a description of the project scope 3. the financial plan to pay for these improvements, 4. an explanation of the public outreach 5. a summary of the community feedback received thus far 6. a description, in layman's terms, of the proposed ballot language 7. information about the Fair Campaign Practices Act 1. Project Overview The Connect Avon Now Project is the implementation step of many earlier plans, studies, and analysis. It is a pro- active effort by the community to create a more vibrant commercial core which is transit - oriented with better and safer pedestrian and bicycle connections, and easily accessible public parking. It is intended to accommodate additional development in the Town core while reducing automobile dependency and traffic impacts as well as promoting a competitive environment for visitor based economic development. Funding the Connect Avon Now Project requires a commitment to this vision and a willingness to invest in our local infrastructure. Today's investment will result in: • increased frequency of fare -free bus service, • extension of bus routes to Beaver Creek and to shops at the Village at Avon, • construction of 15+ miles of new pedestrian bridges and bike trails, • construction of parking to promote commercial development in the town core with a cohesive look, feel, and inter - connectedness, • economic stimulation through creation of an estimated 800+ local jobs. Page 2 The Connect Avon Now Project is funded by an incremental sales tax increase of 0.85% and a 4.500 mill levy property tax. The mill levy would be phased -in in 2011 and 2017 (to replace two expiring levies) such that most Avon residents will not see a change on their property taxes as compared to today. The mill levy results in a continued average payment of about $7.50 /month 1 in 2011 on property taxes. Approximately 2 /3rds of all sales tax collected in Avon is actually generated by visitors, therefore, approximately $3 in sales tax revenue would be generated for every $1 of sales tax that is paid by local residents. The Project is intended to enhance the attractiveness and vitality of the Town core which will benefit lodges, restaurants, shops, and other commercial businesses. The relative cost to a consumer spending $400 per month on taxable goods in Avon would be to pay an additional $3.40 in sales tax, which is less than the average commuter pays to ride ECO Transit for just one day. Ames gmavlkers Uwrspsrtm*n denw=1 . CAN *Axft Lwo sWn tw so OM Aftm p" OW hk dwre. 2. Project ScoRe ' The three main project components of the Connect Avon Now Project are transit, pedestrian /bicycle trails, and parking. Each component is described here. Transit Scope, budget, and ridership trends are presented below. The Village at Avon and the impact to Avon Transit's service if the Connect Avon Now Project is not approved area also discussed. Scope - The Connect Avon Now Project will allow for improved bus service and route extension to the Village at Avon stores, Buffalo Ridge Affordable Housing Complex, and Beaver Creek Ski Area. It funds construction of new bus stop pullouts and improvements at existing bus stops (e.g., street lighting, signage, benches) to improve safety and create a more cohesive appearance. These transit improvements would be implemented as soon as possible, with all service extensions in place no later than the start of the 2011 -12 ski season. Additionally, the Connect Avon Now Project would allow for increased frequency of buses to meet increasing demands as the town population grows. Budget - The Connect Avon Now Project will change the way Avon Transit is funded, at least in part. The General Fund would still contribute funds for operations, but would cap this expenditure at $1,000,000 per year or 9% of the general fund revenues. A portion of the new tax - generated revenue will be dedicated to transit, providing a means to deliver a stable service level in future years. This predictability in route location and service frequency would give residents, guests, and developers more confidence to make investment decisions in Avon. It will also assist in making parking - related decisions for development projects. The Connect Avon Now Project proposes to fund transit operations primarily from the sales tax with a smaller contribution from the new property tax revenue (see "Financial Plan "). Avon Transit also incurs capital expenses for equipment replacement, bus stop construction, and other facility needs. Based on projections for capital costs, $2.5M has been included in the Debt Question for the Connect Avon Now Project. 1 Assumes residence with assessed value of $500,000. Page 3 Ridership Trends - Ridership data for Avon Transit was requested by Town Council during the May 25th meeting. Table 1 provides this information. The usual trend, that public transit ridership drops when the service level drops, is observed here. The impacts of the economic recession combined with the transit service reduction can be seen by comparing the 2008 and 2010 ski season ridership. The number of riders dropped 34% on all routes and 31% on the Gondola Express (lodging guests) during this 2 -year period when service was simultaneously reduced by about 28 %. The "riders per service hour" metric is generally more informative than the absolute numbers of riders. This performance metric looks reasonable. Overall, trends indicate continued proportionate use of Avon Transit by workers and guests alike. Table 1. Avon Transit Ridership Data Year Ridership Service Hours Riders per service hour 2006 538,116 18,749 28.7 2007 582,906 17,703 32.9 2008 400,692 14,388 27.8 2009 348,040 13,547 25.7 2010 166,535 (thru 4/13/10) 6,342 (thru 4/13/10) 26.3 Table Notes: The level of transit service dropped in 2010 and is projected to be 10,658 hr by end of October. November and December are budgeted in the next calendar year (2011) Considerations Regarding the Village at Avon (VAA) - Table 1 shows that Avon Transit ridership and the number of riders per service hour were the highest in 2006 and 2007 when Avon Transit served Buffalo Ridge and the WalMart commercial area. Over 500 riders per day were, on average, recorded at VAA transit stops during May 2006 - April 2007, demonstrating a clear need for bus service to this area. Polarstar" Buffalo Ridge property managers, and Town Council members alike have requested re- instatement of Avon Transit bus service to serve affordable housing residents at Buffalo Ridge. The Connect Avon Now Project would enable the Town to provide bus service to the VAA properties, thereby serving the VAA residents, connecting the VAA residents with the WalMart, Home Depot and VAA stores, and connecting the VAA residents with the Town core. If the Connect Avon Now Project is Not Approved - If the Connect Avon Now Project does not pass and the town caps the subsidy from the General Fund to Avon Transit at $1,000,000 per year as expected, some cuts in transit service will be needed as compared to current levels. Avon Transit had been receiving about $1,400,000 from the General Fund. Cuts occurred in 2009 and 2010 which reduced service hours and funding for fleet replacement, resulting in a $1,225,000 subsidy in 2009 and expected similar value for 2010. If the Connect Avon Now Project is not approved, a $1,000,000 subsidy in 2011 would provide for only about 7,500 bus in- service hours, in addition to the required expenses for gondola operations, bus maintenance, bus replacement, and bus stop maintenance. Due to federal and license requirements, year -round (i.e., not seasonal) service must be provided by public transit. To fit these constraints, one reasonable bus service scenario would be to provide 1 bus in the town core during the hours of approximately 6:30am- 7:30pm using the figure -eight black route (30- minute interval) Page 4 daily, plus a weekend lodging shuttle connecting to Avon Station during ski season. However, no funding would be available for evening service or weekday peak season needs, nor would funding be available to contribute to a Beaver Creek Shuttle, to extend routes, or to replace fleet. The potential negative impacts to Town core businesses from a reduced level of service is not known. This reduced level of service would not meet existing demands or fund bus replacement for future use. Pedestrian, Bicycle Improvements Scope and funding are presented below. If the Connect Avon Now Project is not implemented, the pedestrian and bicycle improvements listed here would be delayed indefinitely until we can determine a funding source for these projects. Scope - Many desired pedestrian, bicycle and trail improvements were identified in the "Comprehensive Transportation Plan ". Town Council reviewed the list of recommended projects and prioritized the list in Table 2; this is the basis for the anticipated pedestrian and bicycle trail expenditures in the Connect Avon Now Project. Table 2. Sample Pedestrian and Bicycle Project Components Project CAN Allowance Neighborhood Singletree/Nottingham Trailhead (new) $ 148,500 Nottingham Trail Connector (Nottingham to Buck Cr.) $ 50,000 Nottingham West Beaver Creek Blvd Pedestrian Improvements $ 50,000 West Avon Metcalf Bike Lane /Trail (new) $ 500,000 Wildwood /Wildridge /Mountain Star Chapel Place Pedestrian Improvements $ 50,000 East Avon Ped RR Ped Crossing @ Eagle Bend Dr.* $ 185,000 East Avon /Eaglebend /Stone Bridge Lower Buck Cr. Trail (new) $ 100,000 Nottingham Upper Buck Cr. Trail (improvements) $ 55,000 Nottingham /Mountain Star Beaver Cr. Overlook Trail (improvements) $ 251,000 Wildridge Metcalf Recreational Trail and Trailhead (new) $ 245,000 Wildwood /Wildridge /Mountain Star Saddle Ridge Trail (new, restore) $ 38,000 Wildridge Misc. Recreational Trail Restorations $ 33,000 All Paved path from W. Beaver Cr Blvd to Lake St. $ 350,000 West Avon HWY 6 Pedestrian underpass @ Beaver Creek* $ 1,000,000 All Hwy 6 sidewalks* $ 500,000 All 1 -70 Ped underpass @ Metcalf* $ 1,500,000 West Avon /Nottingham 1 -70 Ped Overpass @ Buffalo Ridge* $ 2,000,000 Village at Avon Total $ 7,055,500 Average annual funding generated to trails $ 313,000 approximate amount per year Years to complete all w/o debt funding 23 years Percentage of project costs completed within 5 years 22% Possible number of projects completed within 5 years 8 -12 projects to be done *Indicates that this is a portion of the total cost; funding from other stakeholders is anticipated due to mutual benefit. See Table 3. Budget - Planning level costs estimates prepared by licensed civil engineers have been used as the basis for a budget for pedestrian and bicycle trail improvements. New sidewalks, bridges, trails, paths and crosswalks could be funded on either a "pay- as -you- go" basis or via debt authorization. Several of the larger pedestrian, bicycle, and trail projects will require grant funding, developer contributions, or contributions from other stakeholders (e.g., Eagle County, state). An estimate of the range of costs for these Page 5 larger projects and the funding which would be available from the Connect Avon Now Project is shown in Table 3. A minimum of $7.5M in debt service for design and construction of pedestrian and bicycle trail project components has been included in the Debt Question. Debt service allows these components to be planned, designed, and constructed in the most cost - effective manner. Authorization for debt service for these components also increases the town's opportunity to obtain grants for a portion of the costs. Table 3. Share of Total Project Cost Included in Financial Estimate for the Projected Larger Pedestrian and Bicycle Projects Larger Pedestrian Projects Low Range High Range CAN Allowance Ped RR Ped Crossing @ Eagle Bend Dr. $ 500,000 $ 2,000,000 $ 185,000 Hwy 6 Pedestrian underpass @ Beaver Creek $ 1,000,000 $ 2,000,000 $ 1,000,000 Hwy 6 sidewalks $ 1,000,000 $ 1,200,000 $ 500,000 1 -70 Ped underpass @ Metcalf $ 1,800,000 $ 2,500,000 $ 1,500,000 1 -70 Ped Overpass @ Buffalo Ridge $ 2,000,000 $ 3,000,000 $ 2,000,000 Total $ 6,300,000 $ 10,700,000 $ 5,185,000 Parking Scope and funding are presented below relevant to the parking component. Implications of not passing the Connect Avon Now project are also discussed. Scope - Public parking is needed on both east and west sides of Avon Road in the town core in order to accommodate the planned density. The Connect Avon Now Project could help fund a town -wide parking study and if approved by voters, construct approximately 500 stalls of structured parking. The long range plans for "West Town Center Plan" envision a vibrant, mixed -use commercial district that services as the social, cultural, political and recreational gathering place in overall town center. In order to realize the vision for this area, the Plan recommends a redevelopment program for the District consisting 125,000 sq ft of new commercial and retail square footage and 500 to 750 new residential units. The Plan also identifies a number of public improvements needed to catalyze the redevelopment program, including a 269 space public parking garage to be located next to the Recreation Center. To date, the Town has completed more than $11 million in public improvements and design work identified in the "West Town Center Plan ". The "East Town Center District Plan" was drafted in 2008 for the purpose of Page 6 directing public and private redevelopment projects in the district. The Plan recommends that municipal involvement focus on actions that will produce the most public benefit, including a public plaza above 240 underground parking spaces, road improvements and streetscape work. The Plan anticipates that the revenue to pay for a public garage would be shared between the Town and developers through a parking payment -in -lieu fee. "There is a general understanding from a Budget - The Tax Question includes market perspective that the initial public sufficient revenue to defease debt to improvements must be made by the Town to allocate up to $20M to a parking structure instill confidence in the vision for West Town or combination of parking structures. Center District and to demonstrate a Depending on design (e.g. above or below commitment to the revitalization of the district. Redevelopment of each of the ground) and location (e.g., land costs), infill parcels is unlikely to occur in the this is approximately sufficient to fund a manner envisioned for the district 500 stall garage. The Town's strategy is absent this upfront commitment from to create a parking overlay district and the Town. Conversely, these parcels are likely to accelerate their own redevelopment match developer pay -in -lieu contributions schedule once the public improvements are with public contributions, and use public in place and the redevelopment potential for financing such as general authorization the area is clearly evidenced. bonds to take advantage of low interest The public improvements most financing. This creates a mechanism to important to catalyze the redevelopment motivate private development while also of the area include the transit center, producing a desired downtown land layout the main street pedestrian improvements and the parking where residents can easily find convenient component of the parking structure." and affordable parking. Note that the West Town Center District Plan, 2007. (A.3 Debt Question does not include Planning Considerations, pg 4). authorization for construction of a parking garage. Bond consultants recommend that the Town wait on making this request of voters after the result of the parking planning study are complete (see Financial Plan). If the Connect Avon Now Project is Not Approved - The density of private development in the Town core is likely to be restricted by the minimum off- street parking requirement. The probable effect is that the Town core will not achieve the desired minimum critical mass of density envisioned to create a vibrant Town core. 3. Financial Plan Town Council has considered several options to fund this project. The selected option is an incremental sales tax increase of 0.85% and a 4.500 mill levy which is to be phased -in over time. The new mill levies replace the expiring ones such that most Avon residents will not see a change on their property taxes as compared to today. The relationship of revenue generated to project component expenditures is shown graphically on the next page. Page 7 Sales Tax A portion of funding from sales tax was selected for inclusion in the Connect Avon Now Project because it recognizes the transportation demand created by visitors, guests, lodges, restaurants, and other local businesses. Also, many of the key benefits of the Connect Avon Now Project are aimed at and will be received by local lodges, restaurants, and other the business community. Town Council felt it would be inappropriate to fund all of the project costs from just a sales tax increase, however, because of the resulting total sales tax. Thus, an incremental sales tax increase of 0.85% was included in the Tax Question. This increment will increase the total sales tax rate from 8.40% to 9.25 %. This higher rate is considered reasonable because it is consistent with other incorporated ski towns and regional shopping districts such as Glenwood.Z A family spending $400 /month in Avon would pay an additional $3.40 in sales tax. As a point of comparison, the cost of riding ECO Transit for just 1 day is $6.00. Mill Levy A mill levy of 2.250 in 2011 plus another 2.250 mills in 2017 is included in the Tax Question. This phasing plan was selected to minimize the burden to property owners. The dates for phasing in the new levy correspond to expiration dates for two existing mill levies. These two expiring mill levies are: (1) 2.535 mills for the water system which expires on 12/31/2010 and (2) 2.252 mills (currently) for the Avon Road roundabouts which expires 12/31/2016. Collectively, these expiring levies are slightly higher than the replacement levy included in the Project(4.500). Most properties in Avon would not experience a mill levy or Aspen 9.00% 2.1% Awn Current 8.40% 0% With Connect Awn Now 9.25% 0% Beaver Creek 9.75% 0% . Crested Butte 8.50% 4% Frisco 7.775% 0% Glenwood Springs 0% Meadows Shopping District 10.10% 0% Other areas 8.60% 0% Silverthome 7.775% 0% Snowmass Village 10.40% 00/0 Steamboat Springs 8.40% 4.5% Telluride 8.40% 0% Vail 8.40% 4% `Also applied to motor vehicles. property tax Increase, however, properties which were not within the Avon Metropolitan District would be subject to a 2.5 mill levy 2 It is inconsistent to compare Avon's or Vail's sales tax rate to that in unincorporated Eagle County because municipal services are considerably lower. Page 8 increase. Note that some neighborhoods did not participate in the older levies; they will see an increase in 2.250 mills property tax assessment as a result during both 2011 and 2017. The net result is small - the proposed Project levy equates to about $7.50 /month on a property valued at $500,000 in 2011 and about $15 /month for the same property by 2017. Geographically, the majority (81 %) of the new revenue for this project will primarily come from the land areas comprised of the town core area and VAA. This is same area which will enjoy new parking facilities and the concentration of bus service as a result of the Connect Avon Now Project. Pedestrian and bicycle trails are located throughout Avon, including Eaglebend, West Beaver Creek Blvd, and into outlying neighborhoods such as Wildridge and Mountain Star. (See Table 2) Connect Avon • • 4. Public Outreach and Involvement I http.I/www.avon.org /index.aspx ?NID =713 A high degree of public involvement occurred during the early planning work in 2006 -2009 which formed the foundation of this project (see "Background" above). Such outreach included meetings, workshops, surveys, and open houses to discuss land use, motorized and non - motorized transportation, transit, and parking. Feedback was provided by the community at that time which was consistent with the intent and scope of the Connect Avon Now Project. As a cohesive project package, the Connect Avon Now Project was initially proposed in March 2009. Since last spring, feedback from the public and town council has shaped and refined the project size and scope. Fifteen public Town Council meetings, five focus groups, and one open house were held - all open to the public. A short (2 -page) information sheet was prepared and distributed at these meetings. A web page on the project was created and a list of Frequently Asked Questions and factual answers was provided. A DVD of the focus group presentation was made available to the public on this web site. The Vail Daily and the Mountaineer have together printed about 6 articles on this project. Town staff conducted an interview on TV Channel 8 to describe the project and answer questions from reporter Tricia Swensen. Town staff have responded to calls and a -mails from the public on this project. All of this public outreach was conducted in order to inform the community, stimulate involvement from local residents and businesses, and glean their input on the project as it has evolved. S. Community Feedback Feedback from the community received thus far suggests that there is majority support for the Connect Avon Now Project. Focus group and open house attendees were surveyed and 80% stated that they felt the project was "scoped well" and 75% stating that the "funding package was appropriate ". On a graduated scale intended to measure opinion, 70% stated that they would either "definitely support" or "probably support" the tax and debt ballot questions associated with this project. Leaders at Avon businesses including Vail Resorts, East -West Partners, the Westin Riverfront, Lakeside Terrace, the Sheraton Mountain Vista, and R.A. Nelson, have openly stated their support. Public agencies including Polarstar Properties and Avon Elementary have also stated support. Page 9 A minority has stated opposition to the Connect Avon Now Project. Two durable goods merchants within the Avon Business Association (e.g., Ruggs Benedict, Venture Sports) have offered public comment at Town Council meetings. They voiced concern regarding their business's competitive position, in comparison with similar businesses located in nearby unincorporated areas, if Avon's sales tax is increased for this project from 8.40 to 9•.25 %. At least one such merchant has expressed support for the overall project concept and the property, tax component of the Connect Avon Now Project: The Community Survey conducted in 2008 showed "On behalf of Sheraton Mountain Vista, Lakeside Terrace Resorf and the Westin Riverfront Mountain Villas I would like to encourage the Council 'to push-for a public vote regarding the Connect Avon Now project. I represent and speak on behalf 300+ employees, 6 HOA (couple of thousand owners), and the developer Starwood Vacation Ouvnership. We feel that this will be beneficial for our community and future growth. "'- - Sheriff Masry, General Manager Sheraton !vlountain Vista; Lakeside Terrace Resort, & The-Westin Riverfront Mountain Villas, in an e -mail to Jaime Walker, Avon Community Relations Officer, June 8. 2090. over 70% support by Avon voters for a sales tax increase "...to fund transit and trails" without being provided with any further details or project definition. Although this survey is two year's old and economic conditions have changed for many residents, it still provides one indication of public opinion. 6. Proposed Ballot Language Proposed ballot language is attached. The two proposed questions are summarized below. 1. Create dedicated revenue sources (aka "Tax Question ") 2. Authorize the Town to issue debt (aka "Debt Question ") Tax Question - The sales tax increment and the mill levy are combined into one question referred to as The Tax Question. These two taxes can be combined in one question because they are for the same single purpose: to fund the Connect Avon Now Project, a transportation project. The Tax Question is explained in more detail under "Financial Plan" above. Debt Question - The Debt Question includes up to $10M for debt authorization. Such authorization is valid for 10 years from the date of voter approval. Revenue generated from passage of the Tax Question would be used to defease debt for the Connect Avon Now Project capital improvements. Passage of the Debt Question would allow the town to use low interest public financing such as general obligation bonds or Build America Bonds. $10M is expected to be sufficient to build transit and trail capital components, and cover the cost for planning and design of the first parking structure. However, because costs for parking can vary considerably (based on number of sites and design), bond counsel recommends that Avon wait to ask voters for authorization to funding construction of parking infrastructure once design -level cost estimates are available (e.g., by 2014). For this reason, the Debt Question limit of $10M does not include funding for construction of a parking garage. The Town will most cost - effectively be able to deliver results in a shorter period of time if both questions are approved by voters in November 2010. This scenario would provide sufficient new revenue to deliver the benefits and services described for the Connect Avon Now Project in a timely and with the lowest financing and implementation costs. If the Tax Question passes but the Debt Question fails, then components in the Connect Avon Now Project will have to be implemented as fund balance is accumulated. It will be very Page 10 difficult to construct the larger improvements (e.g., grade- separated pedestrian /bike crossings, parking garages) without use of debt. Inflation will have greater influence. Avon will not compete well for state and federal transportation grants without debt authority or a large fund balance. Current federal incentives like Build America Bonds and economic job - stimulus packages will likely dry up before Avon has accumulated sufficient local match. Consequently, it will take much more time and more local money to deliver the same resulting transportation connectivity than if both questions pass. In this situation, the Town would likely return to the voters in subsequent years to re -ask for debt authorization. If the Debt Question passes but the Tax Question fails, then the project has essentially been rejected by the voters. Although debt authorization is available, no lender or bonding company would be able to issue debt because there would be no assigned revenue to defease it. An analogy to this situation is trying to get a home mortgage when you don't have a job. In this situation, the Town would likely return to the voters in November 2011 to re -ask the Tax Question. 7. Fair Campaign Practices Act A review of the Fair Campaign Practices Act is provided here to assist Council with their efforts to discuss this project with their constituents. Colorado's Fair Campaign Practices Act ("'Act") is set forth in in Title 1, Article 45 of the Colorado Revised Statutes. The Act restricts the Town from expending Town funds to urge voters to vote for or against a ballot issue once the Town Council takes action to refer the ballot issue to an election (i.e. upon adoption of the proposed Resolution). Expenditures includes the use of Town equipment as well as Town staff time. CRS §1-45 - 117(b)(I) states, "Nothing in this subsection (1) shall be construed as prohibiting an agency, department, board, division, bureau, commission, or council of the state, or any political subdivision thereof from expending public moneys or making contributions to dispense a factual summary, which shall include arguments both for and against the proposal, on any issue of official concern before the electorate in the jurisdiction. Such summary shall not contain a conclusion or opinion in favor of or against any particular issue." The Town Council may also choose to adopt a Resolution endorsing voter approval of a ballot question and may post such Resolution in the same manner as posting of other resolutions. The Fair Campaign Practices Act does not restrict the Town Council members from expressing their personal opinion nor does the Act restrict Town Council members from the expenditure of personal monies to advocate for or against a ballot measure. Financial Implications: See section above entitled "Financial Plan ". Motion I move to approve Resolution 10 -16, A resolution of the town of Avon authorizing a TABOR election of November 2, 2010, fixing the ballot title and question, and setting forth other details relating thereto for the Connect Avon Now Project. Town Manager Comments Page 11 Attachment A Chronology of Previous Council Actions 2006- Town Council adopted the Avon Comprehensive Plan. Established the vision, goals, policies, and land use plan which calls for transit - oriented density in the town core. August 2007- Town Council adopted the Avon West Town Center Plan (Design Workshop, 2007). This plan includes provision of a 300 -350 stall parking garage located on or near Main Street. July 2008 - Community survey was conducted which showed strong public support (over 70% of voters surveyed) for funding transit and trails via a sales tax increase. Marchl0, 2009 - The concepts which were later embedded in the Strategic Transit Plan portion of the Transportation Comprehensive Plan were presented to Town Council. This presentation described historic financial performance of the Avon Transit enterprise fund and offered a long- term vision for transit which included the new routes and services. Funding options were also discussed, including sales tax increase, hotel /motel tax increase, property tax increase, and formation of a general improvement district (GID). June 23, 2009 - Second presentation on the 2008 Community Survey to Town Council which discussed more details and cross - tabulations regarding the high level of support found for funding expansion of transit and trails via a sales tax increase in that survey. July 14, 2009 - Staff highlighted the specific transit services and a sample list of trail /pedestrian project components that could be funded under a new project initiative. Note that this meeting initially introduced this project as the "Avon Walkable Community Project" but, after some discussion, Council expressed a preference for re- naming the project to Connect Avon Now. Town Council directed staff to 1) notify the County Clerk of Avon's intent to have a ballot question in November 2009 and 2) provide more information about options for funding the project. July 28, 2009 - Presentation of Preliminary Financial Modeling for Sales Tax increase to fund transit and trails. Discussion of possible use of hotel /motel tax and /or GID was explored further. August 11, 2009 -Town Council decided to delay plans to place a transit /trails question on the November 2009 ballot in order to allow more time to carefully study the issues. Preference for a November 2010 ballot date was expressed. August 28, 2009 - The 2010 Transit Division Budget was proposed. September 22, 2009 -The Transportation Comprehensive Plan (FHU, 2009) was adopted by Town Council on this date. This document describes a near -term plan to expand transit bus service to connect the Village at Avon and Beaver Creek Ski Area by modifying routes and frequency to add another 6,000 service hours. The plan includes a list of over $7,000,000 worth of recommended pedestrian, bicycle, and recreational trail capital improvements. Associated transit capital improvements and fleet replacement needs are also identified in that document. October 20, 2009 - 2010 Budget Retreat, Final Transit Division budget for 2010, focus Transit and Trails funding strategy. Town Council requested addition of public parking into the shared vision for the project. November 10, 2009 - Town Council developed a consensus about the shared vision for Connect Avon Now. This vision included the scope, schedule, and budget implications of transit, trails, and parking project components included in the project. December 8, 2009 - Public finance experts described their experience on similar ballot questions. They emphasized the important role of Town Council with respect to public outreach. Page Al of 2 January 26, 2010- Staff provided an update on Connect Avon Now, which included a schedule of activities planned for spring 2010. February 23, 2010- Staff offered a status report on the work being done to assemble factual information for Connect Avon Now. March - April, 2010- Five focus group meetings were held with members of the community and town staff to describe and discuss Connect Avon Now. April 13, 2010 - Focus Group feedback presentation to Town Council. In general, most attendees were comfortable with the project scope and financial proposal. April 29, 2010 - A public open house was held on Connect Avon Now. May 25, 2010 - Staff presented draft ballot language on Connect Avon Now. Page A2 of 2 Attachment B Resolution 10 -16 Page B -1 TOWN OF AVON, COLORADO RESOLUTION NO. 10 -16 A RESOLUTION OF THE TOWN OF AVON AUTHORIZING A TABOR ELECTION ON NOVEMBER 2, 2010, FIXING THE BALLOT TITLE AND QUESTION, AND SETTING FORTH OTHER DETAILS RELATING THERETO. WHEREAS, the Town of Avon (the "Town "), is a duly organized and existing home rule municipality of the State of Colorado, created and operating pursuant to Article XX of the Constitution of the State of Colorado and the home rule charter of the Town; and WHEREAS, the members of the Town Council of Town of Avon (the "Council ") have been duly elected and qualified; and WHEREAS, Article X, Section 20 of the Colorado Constitution ( "TABOR") requires voter approval for any new tax, the creation of any debt and for spending certain moneys above limits established by TABOR; and WHEREAS, TABOR requires the Town to submit ballot issues (as defined in TABOR) to the Town's electors on limited election days before action can be taken on such ballot issues; and WHEREAS, November 2, 2010, is the date of the regular election in the Town and one of the election dates at which ballot issues may be submitted to the eligible electors of the Town pursuant to TABOR; and WHEREAS, §31 -11- 111(2) authorizes the Town to submit any question to the vote of the registered voters of the municipality by adoption of a resolution; and WHEREAS, the Council hereby determines that it is necessary to submit to the electors of the Town, at the regular election to be held on November 2, 2010, the questions of (i) increasing the Town sales tax and Town property tax and (2) incurring debt to finance certain multi -modal mobility improvements (the "Project "); and WHEREAS, Section 3.1 of the Avon Home Rule Charter ( "Charter ") states that special and general municipal elections shall be governed by the Colorado Municipal Election Code of 1965 as now existing or hereafter amended or modified, except as otherwise provided in the Charter or as Council may prescribe by ordinance; and WHEREAS, pursuant to §31 -10- 102.7, C.R.S., of the Colorado Municipal Election Code of 1965 and Section 1.12.010 of the Avon Municipal Code, the Town has determined to utilize the requirements of the Uniform Election Code of 1992, Articles 1 to 13 of Title 1, C.R.S. (the "Uniform Election Code "), and to coordinate a regular municipal election with Eagle County; WHEREAS, it is necessary to set forth certain procedures concerning the conduct of the election. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: Section 1. All action heretofore taken (not inconsistent with the provisions of this resolution) by the Town and the officers thereof, directed towards the election and the objects and purposes herein stated is hereby ratified, approved and confirmed. Page B -1 Section 2. Unless otherwise defined herein, all terms used herein shall have the meanings defined in the Uniform Election Code. Section 3. The regular municipal election of the Town to be held on November 2, 2010, shall be held and conducted as a coordinated election to be conducted by the County Clerk and Recorder in accordance with the Uniform Election Code. Section 4. Pursuant to the applicable provisions of the laws of the State of Colorado and the Town Charter, the Town Council hereby submits to the registered electors of the Town, at such regular Town election to be held on November 2, 2010 (the "election") the ballot issues specified in Section 5 below. Section 5. The following ballot issues, certified in substantially the forms set forth below, are hereby referred to the registered electors of the Town and shall appear on the ballot of the Town of Avon at the election: QUESTION 1 - CONNECT AVON NOW PROJECT: TAX INCREASE SHALL TOWN OF AVON TAXES BE INCREASED $3.5 MILLION ANNUALLY BEGINNING IN 2011 AND CONTINUING THROUGH 2016 AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY IN EACH SUBSEQUENT YEAR FROM THE FOLLOWING TAXES FOR THE PURPOSE OF FINANCING, DESIGNING, CONSTRUCTING, ACQUIRING, OPERATING AND MAINTAINING OF MULTI -MODAL MOBILITY IMPROVEMENTS INCLUDING: • RECREATIONAL TRAILS FOR NON - MOTORIZED USE; • PEDESTRIAN SIDEWALKS; • BICYCLE PATHS, BRIDGES, CONNECTIONS AND PLAZAS; • MASS TRANSPORTATION FACILITIES, VEHICLES, EQUIPMENT AND SYSTEMS; AND, • PUBLIC PARKING FACILITIES: (1) BY AN INCREASE IN THE TOWN SALES TAX RATE OF 0.85% (EIGHTY -FIVE ONE - HUNDREDTHS OF ONE PERCENT, INCREASING THE TOTAL SALES TAX RATE IMPOSED BY THE TOWN OF AVON FROM 4.0% TO 4.85 %), SUCH CHANGE TO BE IN EFFECT AS OF JANUARY 1, 2011; (2) BY AN INCREASE IN THE TOWN'S MILL LEVY OF UP TO 2.250 MILLS WHICH INCREASE MAY NOT TAKE EFFECT UNTIL JANUARY 1, 2011 AFTER THE DECREASE IN THE AVON METROPOLITAN DISTRICT MILL LEVY UPON PAYMENT OF THE AVON METROPOLITAN DISTRICT'S BONDS, PROVIDED THAT SUCH MILL LEVY RATE MAY BE ADJUSTED IN ANY FISCAL YEAR DOWNWARDS OR UPWARDS BY THE TOWN COUNCIL IN ITS DISCRETION SO LONG AS THE TOTAL MILL LEVY IMPOSED BY THIS SUB - PARAGRAPH (2) DOES NOT EXCEED 2.250 MILLS; (3) BY CONTINUATION OF THE TOWN'S MILL LEVY OF UP TO 2.250 MILLS WHICH IS CURRENTLY USED TO PAY DEBT SERVICE ON THE TOWN'S GENERAL OBLIGATION BONDS WHICH CONTINUATION MAY NOT TAKE EFFECT UNTIL Page B -2 SUCH BONDS ARE PAID, PROVIDED THAT SUCH MILL LEVY RATE MAY BE ADJUSTED IN ANY FISCAL YEAR DOWNWARDS OR UPWARDS BY THE TOWN COUNCIL IN ITS DISCRETION SO LONG AS THE TOTAL MILL LEVY IMPOSED BY THIS SUB - PARAGRAPH (3) DOES NOT EXCEED 2.250 MILLS; (4) IF AMENDMENT 60 TO THE COLORADO CONSTITUTION IS PASSED BY THE VOTERS OF THE STATE ON NOVEMBER 2, 2010, THE MAXIMUM DOLLAR AMOUNT WHICH MAY BE COLLECTED BY THE TOWN PURSUANT TO THE MILL LEVIES DESCRIBED ABOVE IN SUB - PARAGRAPHS (2) AND (3) MAY NOT EXCEED $3.5 MILLION IN ANY YEAR. AND SHALL THE TOWN BE AUTHORIZED TO COLLECT, RETAIN AND SPEND ALL REVENUES FROM SUCH TAXES AND THE EARNINGS FROM THE INVESTMENT OF SUCH REVENUES AS A VOTER APPROVED REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? QUESTION 2- CONNECT AVON NOW PROJECT: DEBT INCREASE SHALL TOWN OF AVON DEBT BE INCREASED BY UP TO $10 MILLION DOLLARS WITH A MAXIMUM REPAYMENT COST OF UP TO $21 MILLION AS FOLLOWS: (1) SUCH DEBT MAY BE ISSUED FOR THE PURPOSE OF FINANCING, DESIGNING, CONSTRUCTING, ACQUIRING, OPERATING AND MAINTAINING MULTI -MODAL MOBILITY IMPROVEMENTS INCLUDING: • RECREATIONAL TRAILS FOR NON - MOTORIZED USE; • PEDESTRIAN SIDEWALKS; • BICYCLE PATHS, BRIDGES, CONNECTIONS AND PLAZAS; • MASS TRANSPORTATION FACILITIES, VEHICLES, EQUIPMENT AND SYSTEMS; AND, • PUBLIC PARKING FACILITIES: AND ANY COSTS NECESSARY OR INCIDENTAL THERETO, INCLUDING ANY COSTS WHICH THE TOWN MAY INCUR IN CONNECTION WITH THE DEBT OR IMPROVEMENTS TO BE FINANCED AND THE COST OF ESTABLISHING RESERVES TO SECURE THE PAYMENT OF SUCH DEBT; (2) SUCH DEBT MAY BE EVIDENCED BY THE ISSUANCE OF BONDS, LOAN AGREEMENTS, INTERGOVERNMENTAL AGREEMENTS OR OTHER MULTIPLE FISCAL YEAR FINANCIAL OBLIGATIONS PAYABLE FROM ANY TOWN REVENUES AS THE TOWN COUNCIL MAY PLEDGE TO THE PAYMENT OF THE DEBT; (3) SUCH DEBT MAY BE SOLD OR ENTERED INTO FROM TIME TO TIME AT A PRICE ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH DEBT, ON SUCH Page B -3 TERMS AND CONDITIONS AS THE TOWN MAY DETERMINE, INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY WITH OR WITHOUT PAYMENT OF PREMIUM; AND SHALL THE TOWN BE AUTHORIZED TO ISSUE DEBT TO REFUND THE DEBT AUTHORIZED IN THIS QUESTION, PROVIDED THAT AFTER THE ISSUANCE OF SUCH REFUNDING DEBT THE TOTAL OUTSTANDING PRINCIPAL AMOUNT OF ALL DEBT ISSUED PURSUANT TO THIS QUESTION DOES NOT EXCEED THE MAXIMUM PRINCIPAL AMOUNT SET FORTH ABOVE, AND PROVIDED FURTHER THAT ALL DEBT ISSUED BY THE TOWN PURSUANT TO THIS QUESTION IS ISSUED ON TERMS THAT DO NOT EXCEED THE REPAYMENT COSTS AUTHORIZED IN THIS QUESTION; AND SHALL THE PROCEEDS OF SUCH DEBT AND ANY INVESTMENT INCOME THEREON BE COLLECTED, RETAINED, AND SPENT AS A VOTER APPROVED REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? Section 6. The Town Clerk is hereby appointed as the designated election official of the Town for purposes of performing acts required or permitted by law in connection with the election. Section 7. If a majority of the votes cast on the question to authorize the bonds and the increase of taxes submitted at the election shall be in favor of issuance of the bonds and the increase of taxes as provided in such question, the Town acting through the Council shall be authorized to proceed with the necessary action to issue the bonds and the increase such sales tax in accordance with such question. Any authority to issue the bonds and increase in tax, if conferred by the results of the election, shall be deemed and considered a continuing authority to issue the bonds and increase taxes so authorized at any one time, or from time to time, and neither the partial exercise of the authority so conferred, nor any lapse of time, shall be considered as exhausting or limiting the full authority so conferred. Section 8. If a majority of the votes cast on the ballot question authorize the issuance of bonds, the Town intends to issue such bonds in the approximate aggregate principal amount of $10,000,000.00 to pay the costs of the Project, including the reimbursement of certain costs incurred by the Town prior to the execution and delivery of such bonds, upon terms acceptable to the Town, as authorized in an ordinance to be hereafter adopted and to take all further action which is necessary or desirable in connection therewith. The Town shall not use reimbursed moneys for purposes prohibited by Treasury Regulation §1.150 -2(h). This resolution is intended to be a declaration of "official intent" to reimburse expenditures within the meaning of Treasury Regulation §1.150 -2. Section 9. Pursuant to the Uniform Election Code, any election contest arising out of a ballot issue or ballot question election concerning the order of the ballot or the form or content of the ballot title shall be commenced by petition filed with the proper court within five days after the title of the ballot issue or ballot question is set. Section 10. If any section, paragraph, clause or provision of this resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no manner affect any remaining provisions of this resolution. Section 11. All resolutions or parts of resolutions inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any resolution or part of any resolution heretofore repealed. Section 12. The effective date of this resolution shall be immediately upon adoption Page B -4 INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Avon, Colorado, on June 22, 2010. TOWN COUNCIL: By: Ronald C. Wolfe, Mayor ATTEST: By: Patty McKenny, Town Clerk [seal] APPROVED AS TO FORM: By: Eric Heil, Town Attorney Page B -5 STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) certify: I, Patty McKenny„ the Town Clerk of the Town of Avon, Colorado (the "Town "), do hereby 1. The foregoing pages are a true and correct copy of a resolution (the "Resolution ") passed and adopted by the Town Council of the Town (the "Council ") at a regular meeting of the Council held on June 22, 2010. 2. The Resolution was duly introduced, moved and seconded and passed on at the regular meeting of June 22, 2010, by an affirmative vote of a majority of the members of the Council present at the meeting as follows: Name "Yes" "No" Absent Abstain Ronald C. Wolfe, Mayor Brian Sipes, Mayor Pro Tem Richard Carroll David Dantas Kristi Ferraro Amy Phillips Buz Reynolds 3. The members of the Council were present at the meeting and voted on the passage of such Resolution as set forth above. 4. The Resolution was approved and authenticated by the signature of the Mayor, sealed with the Town seal, attested by the Town Clerk and recorded in the minutes of the Council. 5. There are no bylaws, rules or regulations of the Council which might prohibit the adoption of said Resolution. Page B -6 6. Notice of the regular meeting of June 22, 2010, in the form attached hereto as Exhibit A was posted at the Avon Town Hall, 400 Benchmark Road, Avon, Colorado, not less than twenty -four hours prior to the meeting in accordance with law. (SEAL) Page B -7 Town Clerk EXHIBIT I (Attach Notice of Meeting) Page B -8 Flamm TOWN OF AVON, COLORADO RV O N AVON WORK SESSION MEETING FOR TUESDAY, JUNE 22, 2010 llll MEETING BEGINS AT 3 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM BRIAN SIPES COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR. TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY ALL WORK SESSION MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME; PLEASE TELL THE MAYOR YOU WOULD LIKE TO SPEAK UNDER No. 2 BELOW ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH 3:00 PM — 3:45 PM 1. EXECUTIVE SESSION: a. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b) and for developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d) specifically related to pending litigation and settlement discussions regarding Town of Avon v Traer Creek Metropolitan District, 2008 CV 0385 b. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b) specifically related to pending litigation regarding Traer Creek, LLC, et. al. v Town of Avon 2010 CV 316 c. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b), developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d), and for the discussion of potential transfer of real property pursuant to Colorado Revised Statute §24- 6- 402(4)(a) specifically related to the Upper Eagle River Water Authority Avon water treatment plant site d. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b), developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d), and for the discussion of potential transfer of real property pursuant to Colorado Revised Statute §24- 6- 402(4)(a) specifically related to the Swift Gulch Regional Transit Site 3:45 PM — 3:45 PM 2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA 3:45 PM — 4:00 PM 3. COUNCIL COMMITTEE AND STAFF UPDATES a. Financial Matters (Finance) Memo Only 4:00 PM — 5:00 PM 4. STATEWIDE OF THE REAL ESTATE INDUSTRY — A PRESENTATION BY ANNE RICKER (Anne Ricker, Leland Consulting) A Presentation of the State of the Real Estate Industry and its Implications for Cities and Towns 5:00 PM 5. ADJOURNMENT Avon Council Meeting. 10.06.22 Page 1 of 3 FINANCIAL MATTERS June 22, 2010 1. YTD Building Revenue Report Actual vs Budget — May 2. Detail -Real Estate Transfer Taxes — May 3. 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LnE F F E Town of Avon Real Estate Transfer Tax Calendar Year 2010 The Gates at Purchaser Name Property Amount Received Riverfront PUD Beaver Creek Apr -10 $ 194,857.87 $ 899,423.30 $ - Land Title Guarantee Falcon Pointe 108 -29 $26.00 Land Title Guarantee Falcon Pointe 112 -04 $140.00 Land Title Guarantee Falcon Pointe 202 -04 36.00 Land Title Guarantee Falcon Pointe 205 -28 15.00 Land Title Guarantee Falcon Pointe 301 -06 60.00 Land Title Guarantee Falcon Pointe 301 -30 22.00 Land Title Guarantee Falcon Pointe 303 -08 50.00 Land Title Guarantee Falcon Pointe 304 -09 35.00 Land Title Guarantee Falcon Pointe 405 -12 50.00 Title Company Rockies Mtn. Vista 18 -10 1,185.00 Title Company Rockies Mtn. Vista 19 -10 913.00 Title Company Rockies Mtn. Vista 20 -10 398.00 Title Company Rockies Mtn. Vista 21 -10 757.00 Steve, Vincent & Clare Clark Avon Crossing 111 4104 2,200.00 George & Jon Honore Canyon Run A -102 8,740.00 TW Columbia LLC Canyon Run B -102 9,000.00 Edward Greenspan Mtn. Star Lot 73 18,500.00 Graig Kornbluth & Daniel Siegal 2625 Beartrap Rd # B 13,500.00 Patricia Reynolds Mtn. View Townhomes # 2 5,424.00 Ticor Title Ins Riverfront 18 -10 7,610.20 Ticor Title Ins Riverfront 19 -10 6,986.70 Ticor Title Ins Riverfront 20 -10 12,309.70 Ticor Title Ins Riverfront 21 -10 8,933.70 Liu Xiaoshan Riverfront 148 15,540.00 Total May Revenue $61,051.00 $51,380.30 Total YTD Revenue Total 2010 Budget 255, 908.87 1,000,000.00 950,803.60 - 1,091,798.00 Variance, Favorable (Unfavorable) $ (744,091.13) $ (140,994.40) $ - CU O) m C O L N U E w O 0 y C O N O O O r W W 2 NYN C LL O O I.r Off' V O Cl) Q Z Z p `0 r � Q CO CL O G O N U U a 0 0 0 0 0 0 0 0 0 0 0 0 co co r- 0 0 0 0 0 0 0 0 U? 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N_ O W m m m EH m m V V ff3 tS' "�� 3s 11 g7tp O) 0 0 2 a) a� o ° N 'c @ 0) n o H °n m Q ') Q -i ci 2 m , W O Z O tS' "�� 3s 11 g7tp 0 0 N m O O N CL Oo O ` O N O w C O m � V d O n U K (oo� H N m A 0 O 0 N M 0 0 N q q O q q q q O O O O O O O o 0 0 0 0 0 0 O0 0 0 0 0 0 O O O O O O O � 0 V M N O ( 0 O — Al To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Initials Legal: Eric Heil, Town Attorney From: Scott Wright, Asst. Town Manager — Finance Date: June 17, 2010 Re: State of the Real Estate Industry — a Presentation by Anne Ricker Summary: Anne Ricker from Leland Consulting Group will be here next Tuesday to give Council and staff a presentation of the current state of the real estate industry from a national perspective and its implications for local cities and towns, as well as Avon's initiatives. Anne was instrumental in the creation of the Avon Urban Renewal Authority, the Town Center West Area Urban Renewal Plan and our Community Revitalization Policy and will have some very relevant comments and themes for discussion. Town Manager Comments: Page 1