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TC Res. No. 2006-12 APPROVING A FACILITIES OPERATION AGREEMENTTOWN OF AVON, COLORADO RESOLUTION NO. 06-12 SERIES OF 2006 A RESOLUTION APPROVING A FACILITIES OPERATION AGREEMENT BETWEEN THE TOWN AND CONFLUENCE METROPOLITAN DISTRICT, AND RATIFYING ALL ACTION HERETOFORE TAKEN BY THE STAFF OF THE TOWN WHEREAS, the Town Council has approved an Amended and Restated Development Agreement ("the Development Agreement") for the Confluence; and WHEREAS, the Development Agreement obligates the Town to enter into a separate joint operating agreement for operation of a gondola and a public plaza with restrooms; and WHEREAS, the Town and representatives of East West Partners and Confluence Metropolitan District have agreed upon a Facilities Operation Agreement to implement the Development Agreement; and WHEREAS, the Facilities Operation Agreement is not an agreement "with other governmental units for the joint use of buildings, equipment or facilities, or for furnishing or receiving commodities or services of public benefit and WHEREAS, the Facilities Operation Agreement is therefore not a "Cooperative Intergovernmental Contract" for purpose of Section 16.2, Town of Avon Home Rule Charter, requiring approval by a two-thirds vote of the entire Council. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The FACILITIES OPERATION AGREEMENT, a copy of which is filed in the minutes of this meeting, is approved. Section 2. All action heretofore taken by the staff of the Town of Avon directed toward the forgoing purpose is hereby ratified, approved and confirmed. ADOPTED at a regular meeting of the Town Council of the Town of Avon the 14th day of March, 2006. - • A~ ATTEST: r; , P~4~ Pa M Ke , To Clerk T AVON, C ORADO l~ Ronald C. Wolfe, Mayor TOWN OF AVON, COLORADO RESOLUTION NO. 06-12 SERIES OF 2006 A RESOLUTION APPROVING A FACILITIES OPERATION AGREEMENT BETWEEN THE TOWN AND CONFLUENCE METROPOLITAN DISTRICT, AND RATIFYING ALL ACTION HERETOFORE TAKEN BY THE STAFF OF THE TOWN WHEREAS, the Town Council has approved an Amended and Restated Development Agreement ("the Development Agreement') for the Confluence; and WHEREAS, the Development Agreement obligates the Town to enter into a separate joint operating agreement for operation of a gondola and a public plaza with restrooms; and WHEREAS, the Town and representatives of East West Partners and Confluence Metropolitan District have agreed upon a Facilities Operation Agreement to implement the Development Agreement; and WHEREAS, the Facilities Operation Agreement is not an agreement "with other governmental units for the joint use of buildings, equipment or facilities, or for furnishing or receiving commodities or services of public benefit and WHEREAS, the Facilities Operation Agreement is therefore not a "Cooperative Intergovernmental Contract" for purpose of Section 16.2, Town of Avon Home Rule Charter, requiring approval by a two-thirds vote of the entire Council. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The FACILITIES OPERATION AGREEMENT, a copy of which is filed in the minutes of this meeting, is approved. Section 2. All action heretofore taken by the staff of the Town of Avon directed toward the forgoing purpose is hereby ratified, approved and confirmed. ADOPTED at a regular meeting of the Town Council of the Town of Avon the 14th day of March, 2006. T AVON, C ORADO -1 T r 'z Ronald C. Wolfe, Mayor ATTEST:'~, Pa M e , To Clerk FACILITIES OPERATION AGREEMENT THIS FACILITIES OPERATION AGREEMENT (this "Agreement") is entered into as of the Iq1_1 day of 2006, by and between CONFLUENCE METROPOLITAN DISTRICT (the "CMD"), a quasi-municipal and a political subdivision of the State of Colorado (the "State"), and the TOWN OF AVON (the "Town"), a municipal corporation and a political subdivision of the State. CMD and the Town are sometimes herein referred to collectively herein as the "Parties." RECITALS WHEREAS, CMD was organized as a special district under the Special District Act, Section 32- 1-101 et seq., C.R.S, for the purposes of providing public infrastructure and services within and without its boundaries and the boundaries of the Avon Station Metropolitan District (together, CMD and the Avon Station Metropolitan District are referred to herein as the "Districts") ; WHEREAS, the property within the Districts lies wholly within the boundaries of the Town, in the County of Eagle, Colorado; WHEREAS, the terms of that certain Consolidated Service Plan for CMD, approved by the Town on September 22, 1998, as amended from time to time (the "Service Plan"), contemplates and authorizes the financing by the Districts, and the construction, operation, maintenance and management by CMD of certain public improvements, including without limitation the construction, operation and maintenance of (a) a gondola from a parcel of real property which has been annexed to the Town, as more particularly described in Exhibit A attached hereto (the "Confluence"), to the area commonly known as the Tames/Beaver Creek Landing commercial hub with a minimum capacity of 1,200 people per hour (the "Gondola"), and (b) a public plaza and related public restrooms (the "Public Plaza and Public Restrooms"), in each case, in accordance with and as further described in an Amended and Restated Development Agreement (the "Development Agreement") entered into by and between the Town and East West Partners, Inc., a Colorado Corporation, and dated , 2006, and the PUD Development Plan (the "Development Plan") recorded at Reception No. , in the Office of the Clerk and Recorder of Eagle County, Colorado (collectively, the "Designated Public Improvements"); NOW, THEREFORE, in consideration of the obligations and undertakings set forth below, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: 1. Construction of Designated Public Improvements - Condition Precedent. The Parties acknowledge and agree that terms and conditions, and the rights and obligations set forth herein shall not be effective unless and until the Commencement Condition has been satisfied as defined and described in Paragraph 5., below. 2. Gondola Operations. CMD shall retain ownership of the Gondola. A. The public shall enjoy a perpetual easement of use and enjoyment of the Gondola, subject to the reasonable regulations of CMD acceptable to the Town staff. During the term of this Agreement, no fee or other charge for use of the Gondola shall be assessed by CMD or any party managing the Gondola on behalf of CMD although, with the agreement of the Town, fees may be charged during times outside of the periods of operation described in Paragraph 2.13, below. Notwithstanding the foregoing, the Parties acknowledge and agree that the life span of a Gondola is anticipated to be 20-30 years, and that future replacement of these improvements would be necessary to maintain its existence. In the event the Gondola is retired and not replaced, the Town's obligations herein with respect to the Gondola, and the easement to the public provided herein with respect to the Gondola, shall each automatically terminate and be of no further force or effect. CMD shall not close, restrict or limit the Gondola to public use without the prior written authorization of the Town except as described immediately above regarding the life-span of the Gondola, as described in Paragraph 2.B below regarding operating dates and time, or otherwise if the continued operation of the Gondola would, in the reasonable judgment of CMD, constitute a hazard to the public. In any event of closure, restriction or limitation due to hazards to the public, CMD shall either reopen the Gondola to public use as agreed by the Town and CMD or at the earliest time that the Gondola may, in the reasonable judgment of CMD, be used safely. B. CMD shall be responsible for the operation and maintenance of the Gondola, although the Town acknowledges and accepts that the Gondola may also be governed by a management agreement pursuant to which The Vail Corporation or an associated entity under the control of the owner of Beaver Creek Resort (the "Vail Entity") shall manage and operate the Gondola on behalf of CMD. In either case, the hours of operation shall be as agreed upon by CMD and the Town staff from time to time, but unless otherwise agreed shall be not less than from December 20 through April 1 of each ski season, with operations beginning at the same time each day as the beginning of operations of the Lower Beaver Creek Express and ending one hour after the close of operations of both the Larkspur Bowl Lift and the Strawberry Park Lift. Notwithstanding the forgoing, the Parties acknowledge and agree that such operations shall be subject to closure due to mechanical or electrical failure, emergency or lift accident, general maintenance, weather conditions, snowmaking priorities, and any force majeure event. The Gondola shall be operated, maintained and used in a careful, safe, and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, .board, or body, now in force or hereafter to become effective. C. In consideration of the performance by CMD of its obligations under this Paragraph 2. subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50%) of CMD's operating and maintenance budget for the Gondola, not to exceed $240,000, due annually on or before November 1 in each year during which this Agreement is in effect, which amount shall be increased or decreased annually, beginning January 1, 2006, equal to the percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi-annually and appearing in the January and July issues of the CPI Detailed Report published by the Bureau of Labor Statistics. 3. Public Plaza and Public Restrooms. CMD shall retain ownership of the Public Plaza and Public Restrooms. A. - The-public shall-enjoy a perpetual easement of use and-enjoyment of the Public Plaza and Public Restrooms, subject to the reasonable regulations of CMD acceptable to the Town staff. During the tern of this Agreement, no fee or other charge for use of the Public Plaza and Public Restrooms shall be assessed by CMD. CMD shall not close or restrict or limit the Public Plaza and Public Restrooms to public use, except as otherwise provided in this Paragraph below, without the prior written authorization of the Town. Notwithstanding the foregoing, such may be limited or restricted (i) for regularly scheduled maintenance and repairs, (ii) in accordance with the hours of operation described in subparagraph 3.B, below, (iii) if the continued operation of the Public Plaza and Public Restrooms would, in the reasonable judgment of CMD, constitute a hazard to the public, or (iv) for the conduct of private or public events, as discussed in subparagraph 3.D below. In the event of such restriction or limitation due to hazards to the public, CMD shall reopen the Public Plaza and Public Restrooms to public use as agreed by the Town and CMD or at the earliest time that the Public Plaza and Public Restrooms may, in the reasonable judgment of CMD, be used safely. 2 B. CMD shall be responsible for the operation and maintenance of the Public Plaza and Public Restrooms. The hours of operation shall be as agreed upon by, CMD and the Town from time to time, but unless otherwise agreed shall be not less than three hundred and sixty-five days a year and during the hours of operation for other similarly situated Town-owned public rstroom facilities. The Public Plaza and Public Restrooms shall be operated, maintained and used in a careful', safe, sanitary and proper manner and so as to comply with the applicable laws, ordinances, rules, and regulations of any governmental authority, department, agency, board, or body, now in force or hereafter to. become effective. Maintenance of the Public Plaza shall include, but not be limited to keeping the same free from snow, ice, debris, other hazards to the traveling public. C. In consideration of the performance by CMD of its obligations under this Paragraph 3., subject to the "Commencement Condition" defined below in Paragraph 5., the Town shall make annual payments in an amount up to fifty percent (50%) of CMD's operating and maintenance budget for the - Public Plaza and Restrooms, not to exceed $40,000, due annually on or before November 1 in each year during which this Agreement is in effect, which amount shall be increased or decreased annually, beginning. January 1, 2006, equal to the cumulative percentage change from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan areas as published semi-annually and appearing in the January and July issues of the CPI Detailed Report'-published .by the Bureau, of Labor Statistics. D. CMD and the Town shall cooperate jointly in the use of the Public Plaza and Public Restrooms throughout the year for the conduct of public events, art shows, craft fairs, -concerts, and other uses. All such uses shall be subject to applicable Town permitting approvals. 4.. Reduction in Payments. The not-to-exceed annual payments for Gondola operations and maintenance, as identified in Paragraph 2.C hereof, and the not-to-exceed annual payment for Public Plaza and Restroom operations and maintenance, as identified in Paragraph 3.C. hereof, both as adjusted for inflation, (the "Payment Obligation") shall be decreased pro-ratably, on a dollar. for dollar basis, to reflect additional property tax revenues received due to inclusions of new property into the Districts subsequent to the effective date of this Agreement, or through new development occurring on Lot B or within the Mountain Vista Metropolitan District subsequent to the effective date of this Agreement. The reduction shall be calculated based on the sum total of the amounts arrived at in subparagraphs 4.A, B, C, below„ and at such time as the revenues received by operation of those subparagraphs results in the reduction of the Payment Obligation to zero, Town shall be relieved permanently of the Payment Obligation. A. Operating mill rate. for the Districts multiplied by the assessed valuation for the year being levied for each included property not within the Districts as-of the-date of this Agreement. B. Operating mill rate for the Districts multiplied by the assessed valuation of any new development that has occurred on Lot B subsequent to the date of this agreement. C. Any additional amounts of operating revenues received from Mountain Vista Metropolitan District pursuant to additional development occurring within Mountain Vista Metropolitan District subsequent to the date of this Agreement. D. The Payment Obligation shall also be decreased pro-ratably, on a dollar for dollar basis, to reflect any amounts received or otherwise due to be received subsequent to the date of this Agreement, through.the contribution by entities other than the Town and.CMD by agreement or otherwise, supporting Gondola and/or the Public Plaza and Restrooms operations and maintenance costs. In the event that, any revenues described in this subparagraph 4.1), when taken together with other revenues received under subparagraphs 4.A, B; and C, results in the reduction of the Payment Obligation to zero, Town shall be 3 relieved of the Payment Obligation, but only to the extent and so long as such additional operating revenues remain in place and their receipt is required to reduce the Payment Obligation to zero. 5. Commencement Condition. The Payment Obligation shall commence upon the later of (a) November 1, 2007 or (b) November 1 of the year in which (i) the operations of the Gondola and Public Plaza and Public Restrooms start and (ii) a temporary certificate of occupancy is issued by the Town for the Hotel (as defined in the Development Agreement). The Town may, within its discretion, partially fund operations of the Gondola and/or the Public Plaza and Public Restrooms prior to satisfaction of the foregoing commencement conditions upon terms agreed to between the Town and CND. 6. Bud eting Procedures. No later than September 15 of each year in which the Payment Obligation is in effect, CMD will develop a good faith, detailed plan for operations and estimated budget for the anticipated operating and maintenance expenses with respect to the Designated Public Improvements as described above for the coming operating year (November 1 - October 31) and provide such plan and budget to the Town, together with a reconciliation and budget comparison of the operations and maintenance expenses for the immediately preceding operating year. The Town will have the right to review and comment on such operating plan and budget. During the thirty (30) day period following such delivery of the plan and budget, the Town and CMD will work together and use their best efforts to agree upon a plan and budget. Until a mutually agreed upon good faith plan and budget has been developed, CMD shall continue to operate and maintain the Designated Public Improvements and the Town shall continue to pay its percentage of such costs in accordance with the previously approved budget, adjusted as described in Paragraphs 2.C, 3.C, and 4. above, until a new budget is agreed upon. In the event CMD determines that the approved plan and budget is insufficient to sustain the required standard of operation and maintenance required hereunder, CMD shall notify the Town of the same, and the Town and CMD shall work together and use their best efforts to agree upon a revised or restated plan and budget. 7. No Debt or Pecuniary Liability; No Multiple-Fiscal Year Obligation. All payments hereunder and any other financial obligation of the Town herein in any year shall be expressly subject to annual appropriation by the Town; provided, however, that it is the present expectation of the parties that the Town will make the payments contemplated by this Agreement. This Agreement shall never constitute a debt, indebtedness or multiple-fiscal year financial obligation of the Town within the meaning of the Constitution or laws of the State of Colorado. If, based upon an opinion of independent counsel not previously or at the time such opinion is delivered representing CMD and acceptable to the Town, it is determined that the activities under this Agreement shall be determined an "enterprise" of the Town for purposes of Article X, Section 20 of the Colorado Constitution, or that transactions of a nature similar to the transactions provided for in this Agreement are not required under the laws of the State to be subject to annual appropriation-without-regard to-approval of any such transactions by the electors of the Town, this Agreement shall be reformed so as to delete the annual appropriation provision found in this Agreement and establish the annual payments by the Town required hereunder as binding obligations of the Town. 8. Public Improvement Fees. If the Town, in its budget process for any year, fails to appropriate the amounts to fully fund and pay the Payment Obligation, the Town shall use its best efforts to provide CMD with written notice of such failure by January 1 of the budget year in question; provided that the failure to provide such notice shall not be a breach of this Agreement and CMD acknowledges and agrees that it bears the responsibility to monitor the Town's annual public budget process. In the event of nonappropriation by the Town, the following agreements shall apply: A. The Parties acknowledge and agree that the owner/developer of the Confluence has recorded a covenant ("PIF Covenant") binding on the land requiring the collection of public improvement fees ("PIF") on all lodging rentals in the Confluence. Such PIFs shall-be at the same rates and apply to 4 the same transactions as the existing Town lodging or accommodation tax imposed under Chapter 3.28 of the Municipal Code ("Town Lodging Tax"), and shall be payable at the same time and have the same exemptions and conditions as the Town Lodging Tax. Such PIFs shall be collected pursuant to the rules and procedures set forth in the. PIF Covenant upon written notice to the Town from CMD that the Town has not appropriated all of the funds necessary to pay the Payment Obligation, or the Payment Obligation has been determined by a court of competent jurisdiction to be invalid. Any period of time during which the PIF is being collected shall be referred to herein as a "PIF Collection Period." Each such PIF Collection Period shall continue until the earlier of the collection in full of the Payment Obligation the Town failed to appropriate or was barred from collecting annually or in the aggregate, or the end of the year before the next succeeding budget year for which the Town gives CMD, notice that it has appropriated the Payment Obligation for that budget year. B. During each PIF Collection Period, PIF revenue shall be collected by a collecting agent ("PIF Collecting Agent") appointed by CMD pursuant to the PIF Covenants, and the Parties acknowledge and agree that, so long as the duties of the PIF Collecting Agent are being performed to the reasonable satisfaction of CMD, CMD shall appoint the Town's Finance Director as PIF Collecting Agent as and when necessary. Any amounts of PIF revenue collected in excess of the unappropriated Payment Obligation, annually or in the aggregate, shall be paid to the Town by the PEP Collecting Agent within 10 business days of receipt. C. In consideration of CMD's agreement to operate and maintain the Gondola, the Public Plaza and Restrooms, and other public improvements in the Confluence, the Town will grant a Lodging Tax credit ("Tax Credit") to renters who are subject to and actually pay the PIF to the PIF Collecting Agent during the PIF Collection Period in accordance with the terms and conditions of this Agreement. In order to implement the Town's obligation under this Agreement with respect to the Tax Credit, Town Council will approve an ordinance amending its Municipal Code provisions regarding the Town Lodging Tax within 15 days of the effective date of this Agreement, to provide for and implement the Tax Credit substantially as follows: During each PIF Collection Period, each person or entity otherwise liable to the Town for Town Lodging Tax under the Municipal Code with respect to taxable transactions occurring within the Confluence will receive a Tax Credit against such Town Lodging Tax obligation in an amount equal to the amount of the PIF Revenues collected and received by the PIF Collecting Agent. Such Tax Credit will be automatic and will take effect immediately upon the applicable taxpayer's (as reflected on the taxpayer's periodic tax reports to the Town) remittance to and receipt by the PIF Collecting Agent of the PIF revenues; provided, however, that the transactions and payments supporting the Tax Credit for any given period will nevertheless be subject to audit by the Town to the same extent, for the same limitation periods and in the same manner as the items which are required to be reported on the taxpayer's return-relating to-the period-in which the transaction occurs. If Town-Council fails to adopt the ordinance contemplated in this subsection 8.C., CMD will be entitled in its sole discretion either to: (i) declare the failure of a condition precedent and terminate this Agreement; or (ii) extend the period for satisfaction of the foregoing contingency to a date certain set forth in a written notice of extension, not to exceed 60 days from the date of the extension notice. D. At the termination of each PIF Collection Period, if there are PIF revenues remaining on deposit with the CMD, CMD shall remit all remaining PIF revenues to the Town for the purpose of the Town satisfying its obligations under this Agreement or, if no further obligations exist at that time, for any lawful purpose. Upon reasonable notice to the other party, the Town will have the right at its own expense to audit CMD's books and records, and CMD will have the right at its own expense to audit the Town's books and records, related to their respective obligations under this Agreement. E. The Town and CMD intend that their respective obligations under this Agreement are such that they do not constitute an invalid multiple fiscal year obligation pursuant to or otherwise be prohibited by Article X, Section 20 of the Colorado Constitution, as amended from time to time, so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation. To the extent that implementation of this Agreement through the PIF or Tax Credit is determined by a court of competent jurisdiction be unlawful for any reason so as to preclude performance of their respective obligations under this Agreement or make such performance subject to annual appropriation, the parties will in good faith seek to reform this Agreement in a manner that will best effect their intent. If a party's performance of its obligations is subject to annual appropriation, that party's official or employee charged with the responsibility of formulating the budget proposals is hereby directed to include in the budget proposals for each year sufficient funds to meet the party's obligations under this Agreement. 9. Books and Records. The Parties shall maintain adequate books and records to accurately perform and account for their respective obligations under this Agreement. Representatives thereof shall, be granted reasonable access during normal business hours to such books and records in order to determine compliance with the terms of this Agreement or the accuracy of such books and records. Reasonable best efforts shall be used to resolve any issues, discrepancies, or inaccuracies discovered in any review of any entity's books and records. 10.:. Legal Challen eg to Agreement. In the event any agreement contained herein is ever the subject of a legal challenge, the Town shall diligently resist such challenges in cooperation with the CMD as set forth in Paragraph 15. 11. Default by Town. A "breach" or "default" by the Town under this Agreement shall be, defined as the Town's failure to fulfill or perform any material obligation of the Town contained in this Agreement, including, without limitation, the timely payment of any monetary obligation hereunder, in each case, after the applicable cure period described below; provided that the failure, on the part of the Town to make . any annual appropriation described hereunder shall not be an event of default, and CMD shall have no claim against the Town for any loss, claim, expense or liability for obligations on the part of-CMD to third parties, which CMD expected, to pay upon receipt of Town Funds had they been appropriated, and to the extent allowed.by law CMD shall indemnify and defend the Town against any and all claims, suits, expense or liabilities by or to such third parties arising as a result of such nonappropriation: 12.. Default by CMD. A "breach" or "default" by CMD shall be defined as CMD's failure to fulfill or perform any material obligation of CMD contained in this Agreement following the applicable cure period described below. 13: Notices of Default. In the event of a default by either party under this Agreement,-the non defaulting party shall deliver written notice to the defaulting party of such default, at the address specified in Paragraph 20, and the. defaulting party shall have thirty (30) days from and after receipt of such notice to cure such default. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting party gives written notice to the non-defaulting party within such thirty (30) day period that it is actively and diligently. pursuing such cure, the defaulting,party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default, provided that such defaulting party is at all times within such additional time period actively and diligently pursuing such cure. 14. Remedies. If any default under this Agreement is not cured as described above, the non- defaulting party shall have the right to enforce the defaulting party's obligations hereunder by an action for any equitable remedy, including injunction and/or specific performance, and/or an action to recover damages. Each remedy provided for in. this Agreement is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law, in equity or by statute. 6 15. Cooperation in Defending Legal Challenges. If any legal or equitable action or other proceeding is commenced by a third party challenging the validity of any provision of this Agreement, the Parties agree to cooperate in defending such action or proceeding and to bear their own expenses in connection therewith. Unless the Parties otherwise agree, each party shall select and pay its own legal counsel to represent it in connection with such action or proceeding. 16. Term. This Agreement shall be effective upon execution hereof by the parties and shall represent the valid, binding and legally enforceable obligation of the parties hereto until this Agreement is terminated by mutual written agreement of the parties; provided that nothing herein shall affect the rights of the Town under Colorado law to initiate or pursue dissolution of the Districts or either of them. 17. No Relationship. This Agreement does not and shall not be construed as creating a joint venture, partnership, or employer-employee relationship between the Parties. It is agreed that the conduct and control of the operation and maintenance of the Designated Public Improvements, and the other various functions enumerated herein and authorized by this Agreement shall lie solely with CMD. 18. Insurance. A. CMD shall place and maintain at all times, or shall cause the Vail Entity as CND's agent with respect to the Gondola and the Gondola Interface Area (as defined below) to carry and maintain, a Commercial general liability ("Primary") insurance in an occurrence format in an amount of $1,000,000 per occurrence, with a deductible to be determined by the Parties from time to time, which shall be consistent with the annual plan and budget and to be paid upon each occurrence, including the following coverages: contractual liability, personal injury, broad form property damage, independent contractors and premises operations. The cost of the Primary insurance policy shall be included in CMD's operating and maintenance budget and shall be subject to Paragraph 2.C. CMD's Primary insurance shall provide primary insurance coverage in the event of any claims, suits, proceedings, actions, causes of action, responsibility, liability, demands, judgment and executions arising out of or related to its operation and management of the Gondola and the Gondola Interface Area and shall cover bodily injury, death and damage to property of others. The Gondola Interface Area shall be defined as beginning at the point a person enters the queue and/or terminal area for embarking the Gondola, or exits the terminal area for disembarking the Gondola. CMD shall also place and maintain at all times, with respect to the Public Plaza and Restrooms, insurance in an appropriate occurrence format and in an appropriate amount per occurrence as it reasonably determines from time to time (but at least the amount of the limits of the Colorado Governmental Immunity Act, as they may exist from time to time), which coverage may be -included in its master umbrella or pool policy: - B. The Town shall be named as an additional insured on the primary policy carried by the Vail Entity and, if permitted under the terms of CMD's policies, on any policy carried by CMD. C. Except as otherwise agreed, the Primary insurance policy shall include (i) a clause or endorsement denying the insurer any right of subrogation against the Town; and (ii) a provision requiring the insurer to give the Town thirty (30) days' notice prior to cancellation. D. Prior to this Agreement becoming effective CMD (or the Vail Entity as appropriate) shall furnish the Town with certificates of insurance or other acceptable evidence that the insurance described in this Paragraph 18 is in force. 19. Persons Interested Herein. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any person other than the Parties hereto, any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all of the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Parties shall be for the sole and exclusive benefit of the Parties. 20. Compliance with Law. CMD agrees to comply with all federal, state and local laws, rules and regulations which are now, or in the future may become applicable to the design, financing, construction, operation and maintenance of the Designated Public Improvements. 21. Notices. All notices, demands or other communications required or permitted to be given hereunder shall be in writing and any and all such items shall be deemed to have been duly delivered upon personal delivery; or as of the third business day after mailing by United States mail, certified, return receipt requested, postage prepaid, to the address set forth below; or as of 12:00 Noon on the immediately following business day after deposit with Federal Express or a similar overnight courier service, to the address set forth below; or as of the third business hour (a business hour being one of the hours from 8:00 a.m. to 5:00 p.m. on business days, local time of the recipient) after transmitting by telecopier to the telecopy number set forth below and evidenced by an electronic delivery receipt: If to CND: White, Bear and Ankele Professional Corporation 1805 Shea Center Drive, Suite 100 Highlands Ranch, CO 80129 Attn: William P. Ankele, Esq. District Counsel Facsimile: (303) 858-1801 with a copy to: Wear, Travers & Perkins, P.C. 1000 South Frontage Road West Suite 200 Vail, Colorado 81657 Attention: Richard D. Travers, Esq. Telephone: (970) 476-7646 Facsimile: (970) 476-7118 If to the-Town: Town of Avon PO Box 975 Avon, CO 81620 Attn: John Dunn, Town Attorney Facsimile: (970) 845-7708 Any address or telecopy number fixed pursuant to the foregoing may be changed by the addressee by notice given pursuant to this Paragraph. 22. Governmental Immunity. Nothing contained herein waives or is intended to waive or abrogate any protections that may be applicable to CMD or the Town under the Governmental Immunity Act, Section 24-10-101 et. seq., C.R.S., or any other rights, protections, immunities, defenses or limitations on liability provided by any law or the applicable provisions of the Colorado Constitution. 23. Modification. This Agreement may be modified, amended, changed or terminated, except as otherwise provided herein, in whole or in part, only by an agreement in writing duly authorized and executed by each the Parties. No consent of any third party shall be required for the negotiation and execution of any such agreement. 24. Assignment. Neither this Agreement nor the rights and obligations set forth herein may be assigned by either party without the express written consent of the other. Any attempt to assign the same in the absence of such consent shall be null, void and of no force or effect. 25. Entire Agreement. This Agreement contains the entire agreement between the Parties with respect to the matters set forth herein, and no statement, promise or inducement that is not contained in this Agreement shall be valid or binding. 26. Severability. If any portion of this Agreement is declared void or unenforceable by a court of competent jurisdiction, such portion shall be deemed severed from this Agreement, and the balance of this Agreement shall remain in effect. 27. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Venue in any action brought hereunder shall lie exclusively with the District Court in and for Eagle County, Colorado. 28. Counterparts/Facsimile Si natures. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which when taken together will constitute one and the same instrument. Facsimile signatures of any Party shall be considered originals for all purposes hereunder. [remainder of page intentionally blank; signature page follows] 9 IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above. CONFLUENCE METROPOLITAN DISTRICT Eagle County, Colorado By: _ Name: Title: TOWN OF AV46W, STATE OF COLORADO By: C Name: Od-bid Title: CC r~FAL EXHIBIT A TO FACILITIES OPERATION AGREEMENT Real Property Description [INSERT PROPERTY DESCRIPTION] 11 EXHIBIT A LAN13 CESCRIFMON A parcel of land located In the south 1/2 of the northwest 1/4 of Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian. Eagle County, Colorado, being more particularly described as followr. Beginning of a point on the southerly right-af-way line of the Denver do Rio Grande Wastern Rail Road and the westerly right-of-way line of Avon Rood, from which the Center 1/4 corner of Section 12 bears S 04'10'06" E. 41239 feet: thence along the southerly rahrood rignt- of-woy N 66'23'27' W. 1729.75 feet to the southeasterly most corner of ,root H, Benchmark at Beaver Credo Subdivision. Amendment Number 4, a. recorded in Book 274 at page 701; thenee deporting the southerly right- •C: of-wey line and along the southerly line of Tract H N 89'32'1'1' W. a3 397.29 feet to a point on the easterly line of Beaver Creek Subdivision, Tracts 0 and P, as recorded in Book 656 of page 662. said line being ciao the approximate centerline of the Eagle River; thence along the ll f r es: l li th i t t (10) er y ne e o ow ng en cou s eas t) S 480855" E. 132.70 feet. 2) S 57'22'26' E. 341.00 feet. 3 S 49'50'33' E. 455.67 feet, 4) S 4747'00" E. 293.81 feet. r 5 S 43'40'09' E. 152.41 feet. 6) S 50'10'13' E. 154.98 feet. 7 S 53'42'46' E. 187.29 feel, 8) S 81'26'34' E. 214.88 feet, 9 N 86'00'59' E. 162.21 feet. 10) N 86'36'05' E. 197.35 feet to o point l s~ y the westerly tight-of-way line of Aron Road: thence along the wester 0 E. right-of-way line the following four (4) courses. 1) N 12 OW08 121118 feet. 2) N 12'0230' E. 86.00 feet, 3) N 2t'17'14" E. 92.00 feet, 4) N 04'29'54' E. 119.79 feet to the Point of Beginning. Parcel Contains 18885 acres. Together with three (3) parcels of land known as TK-10-A. TK-10 and PE-10 also being located in the South 1/2 of the Northwest 1/4 of Section 12. Township 5 South, Range 82 West of the Sixth Principal Meridian. Eogle County. Colorado, the exterior boundary of these combined parcels being more particularly described as follows: Beginning at the Northeast corner of the Confluence from which the center 1/4 of Section 12 bears S04' 18' 06"E. 612.39 fact; thence along the southerly right-of-way line of the Denver and Rio Grande Western Railroad S OF 23' 271. 33.06 feet; thence departing said railroad right-of-way along the are of o non-tongent curve to the right. 101.21 feet. having a radius of 1095.90 feet. a certrd angle of 09' 28' 26' and a chord which bears SOB' 28' 48'W. 181.00 feet; thence the following seven (7) courses. 1. S11' 13' 03'W. 54.70 feet 2. S43' 13' WK 37.70 feet 3. S10' 05' 03'W. 94.50 feet 4. Sd6' 35' 03"W. 28.16 fen 6. N12' 05' Orr- 120-18 feet 6. N12' 07' 30'E. 86.00 feet 7. N21' 17' 140E. .64-00 feet thence NOV 29' 54"E. 119.79 feet to the Point of Be9trming. Parcel contains 0.28 acres more or ices. os on 1111111111111111111111111111111111110 1111111111 IIII 11773711 11/23/1998 04:19P 27 Sara Fllshw