TC Res. No. 2013-10 Repealing Resolution No.12-30TOWN OF AVON
RESOLUTION NO. 13 -10
Series of 2013
A RESOLUTION REPEALING RESOLUTION NO. 12 -30
AND RE- APPROVING THE ASPHALT OVERLAY
ESCROW ACCOUNT AGREEMENT
WHEREAS, on October 7, 2011 the Town of Avon, and other parties entered into the
Settlement Term Sheet ( "Settlement Term Sheet ") in an effort to resolve pending litigation Nos.
2008 CV 385 and 2010 CV 316, Eagle County District Court;
WHEREAS, the Avon Town Council ( "Council ") approved the Consolidated, Amended and
Restated Annexation and Development Agreement ( "CARADA ") by Ordinance No. 12 -10
which set forth obligations in section 6.6 of the CARADA for the Town, Traer Creek
Metropolitan District and the Master Developer (as "Master Developer" is defined in the
CARADA) to establish an Asphalt Overlay Escrow Account Agreement (defined in the
CARADA as the "Asphalt Overlay Agreement ") and also set forth that the Asphalt Overlay
Agreement would occur concurrently with the Effective Date of the CARADA (as the "Effective
Date" is defined in the CARADA);
WHEREAS, the Council approved Resolution No. 12 -30 A RESOLUTION APPROVING THE
ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT on December 11, 2012, and
subsequent to such approval, the Master Developer requested the removal of Master Developer
as a party to the Asphalt Overlay Escrow Account Agreement and the Council desires to
accommodate this request and re- approve the Asphalt Overlay Escrow Account Agreement
without the Master Developer as a party; and,
WHEREAS, the Council approved the Receipt and Escrow Agreement Pertaining to The
Village (at Avon) Settlement Implementation by Ordinance No. 12 -10 which set forth various
terms concerning the execution and deposit of documents and agreements into escrow and the
effectiveness or voiding of such documents and agreements.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Resolution No. 12 -30 A RESOLUTION APPROVING THE ASPHALT
OVERLAY ESCROW ACCOUNT AGREEMENT is hereby rescinded, repealed, and replaced
in its entirety with this Resolution.
BE IT FURTHER RESOLVED that the Asphalt Overlay Escrow Account Agreement, attached
hereto as Exhibit A, is hereby approved by the Town of Avon subject to the terms and conditions
of the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement
Implementation and that the Mayor, Town Manager and Town Attorney are hereby authorized to
collectively review and approve the completion of blanks in the document, revisions to correct
typos, grammatical errors, cross - references and definitions, completion or revision of exhibits,
and other revisions to the agreement and exhibits which do not constitute substantive changes to
the agreement.
Res. 13 -10 Approving Asphalt Overlay Escrow Account Agreement
March 26, 2013 FINAL
Page 1 of 2
ADOPTED MARCH 26, 2013
TOWN COUNCIL
By:
Rich Carroll, Mayor
APPROV AS TO FORM:
By:
Eric J. Hei , n Attorney
i
i
Res. 13 -10 Approving Asphalt Overlay Escrow Account Agreement
March 26, 2013 FINAL
Page 2 of 2
ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT
THIS ASPHALT OVERLAY ESCROW ACCOUNT AGREEMENT ( "Asphalt Overlay
Agreement ") is made and entered into as of January 22, 2013, with an Effective Date of
[insert Implementation Date as defined in Receipt and Escrow
Agreement] by and between FirstBank Escrow Services, LLC ( "Escrow Agent "); the Town of
Avon, a home rule municipal corporation of the State of Colorado ( "Town "); Traer Creek
Metropolitan District, a quasi - municipal corporation and political subdivision of the State of
Colorado ( "TCMD "); and Traer Creek LLC, a Colorado limited liability company ( "Master
Developer ") (individually referred to as "Party" and collectively as "Parties ").
RECITALS
A. This Asphalt Overlay Agreement effectuates the provisions of Section 6.6 of the
Consolidated, Amended and Restated Annexation and Development Agreement for the
Village (at Avon) ( "Development Agreement ").
B. Master Developer, Town and TCMD seek to enter into this Asphalt Overlay Agreement in
order to duly satisfy all provisions in the Development Agreement concerning the
establishment of a restricted Asphalt Overlay Escrow Account as set forth in Section 6.6 of
the Development Agreement.
C. Master Developer, Town and TCMD are entering into this Asphalt Overlay Agreement with
Escrow Agent in order to establish a restricted escrow account (as required by and defined in
the Section 6.6 of the Development Agreement, the "Asphalt Overlay Account ") for the
purpose of the deposit, administration and disbursement of their respective shares of certain
funds ( "Funds ") to be deposited, held and disbursed in accordance with the terms and
conditions of this Asphalt Overlay Agreement.
D. In consideration of the payment of its fees and the performance of the respective obligations
of the Parties as set forth herein, Escrow Agent has agreed to execute this Asphalt Overlay
Agreement, to administer the Asphalt Overlay Account and to perform its duties and
obligations as set forth herein.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing, the Parties' performance of
their respective obligations hereunder, and other good and valuable consideration, the receipt and
sufficiency of which are mutually acknowledged, the Parties agree as follows:
1. Asphalt Overlay Account.
(a) Concurrently with the Effective Date, the Town has opened the Asphalt Overlay
Account, which is a restricted non - interest bearing internal escrow account compliant
with C.R.S. §24 -75 -601.1 regarding investment of public funds, at FirstBank, Avon
Branch, located at 11 West Beaver Creek Boulevard Avon, CO 81620, FirstBank Escrow
Services, LLC, Asphalt Overlay Account No.
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(b) The Asphalt Overlay Account is established to receive and escrow Funds from the Town,
TCMD and Master Developer to be used by the Town exclusively for asphalt overlay of
constructed public roads in the Project which have been dedicated to and accepted by the
Town in accordance with the terms of the Development Agreement.
(c) The Escrow Agent will serve as escrow agent for the Term (as defined below) of this
Asphalt Overlay Agreement.
(d) The Escrow Agent agrees to deposit the Funds in the Asphalt Overlay Account in an non -
interest bearing, internal escrow account in the name of Town, entitled "Village (at
Avon) Asphalt Overlay Escrow Account," which shall be segregated from other escrow
accounts or assets held by the Escrow Agent.
(e) This Asphalt Overlay Agreement creates irrevocable instructions to the Escrow Agent
which shall hold the Funds in trust for the use and purposes as set forth in this Asphalt
Overlay Agreement. During the term of this Asphalt Overlay Agreement, all Funds
placed in the Asphalt Overlay Account shall be held for the purpose of funding asphalt
overlays for certain public roads dedicated to the Town in the Village (at Avon) as
described in the Development Agreement.
2. Fees. Master Developer, Town and TCMD agree to pay the Escrow Agent's fees and to
reimburse Escrow Agent for reasonable costs under this Asphalt Overlay Agreement as
follows: Escrow fees shall be due payable in the amount of $500.00 at the time of execution
of this Asphalt Overlay Agreement and $500.00 each year thereafter, and the Parties agree
that such fees will be deducted from Funds upon commencement of the Escrow Account and
on each anniversary of the date hereof. Escrow Agent shall be entitled to a fee of $50.00 for
each disbursement in connection with this Asphalt Overlay Agreement, which fees shall be
deducted from the Funds upon issuance of each check.
3. Contributions. The Master Developer, Town and TCMD will deposit their individual
contribution as required by Section 6.6 of the Development Agreement, which contributions
shall constitute the Funds deposited into the Asphalt Overlay Account until such time as the
obligation to provide a contribution to the Asphalt Overlay Account terminates in accordance
with the teens of the Development Agreement. The Parties' individual contributions are
defined in Section 6.6(a)(ii) through (iv) of the Development Agreement. The Escrow Agent
shall not be liable for the failure of any Party to contribute their respective contribution to the
Asphalt Overlay Account as required by the Development Agreement. This Section 3 shall
not be construed to modify the Parties' respective obligations pursuant to the Development
Agreement, shall not be used as parole evidence with respect to any dispute among the
parties to the Development Agreement, and shall not be construed to impose any obligation
on Party with respect to the timing or amount of any Party's obligation to cause the deposit
of its respective share of Funds (it being the intent of the foregoing only to describe the
Parties' obligations pursuant to the Development Agreement and not to create now or
additional obligations arising solely pursuant to this Section 3.
4. Standard of Care and Liabilities. During the Tenn the Escrow Agent shall have the
following standard of care and liabilities:
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(a) This Asphalt Overlay Agreement expressly and exclusively sets forth the duties of the
Escrow Agent with respect to any and all matters pertinent hereto, and no implied duties
or obligations shall be read into this Asphalt Overlay Agreement against Escrow Agent.
This Asphalt Overlay Agreement constitutes the entire agreement between Escrow Agent
and the other parties hereto in connection with the subject matter of the Funds placed into
escrow, and no other agreement entered into between the parties, or any of them, shall be
considered as adopted or binding, in whole or in part, upon the Escrow Agent
notwithstanding that any such other agreement may be referred to herein or deposited
with Escrow Agent or the Escrow Agent may have knowledge thereof, and Escrow
Agent's rights and responsibilities shall be governed solely by this Asphalt Overlay
Agreement.
(b) Escrow Agent shall not incur any liability for any claims, damages, losses, costs or
expenses, except for willful misconduct or gross negligence, and it shall, accordingly, not
incur any such liability with respect to (i) an action taken or omitted in good faith upon
advice of its counsel given with respect to any questions relating to the duties and
responsibilities of Escrow Agent under this Asphalt Overlay Agreement, or (H) any
action taken or omitted in reliance upon any instrument, including written notices
provided for herein, not only as to its due execution and the validity and effectiveness of
its provision, but also as to the truth and accuracy of any information contained therein,
which Escrow Agent shall in good faith believe to be genuine. Escrow Agent acts
hereunder as a depository only, and is not responsible or liable in any manner whatsoever
for the sufficiency, correctness, genuineness or validity of the subject matter of this
Asphalt Overlay Agreement or any part thereof, or for the forms of execution thereof, or
for the identity of authority of any person executing or depositing such subject matter.
(c) The Escrow Agent shall hold Funds in trust for the benefit of the Town, TCMD and the
Master Developer, and has a fiduciary duty to preserve and account for all Funds in the
Asphalt Overlay Account.
(d) The Escrow Agent shall make and maintain such records as expressly required in this
Asphalt Overlay Agreement and those records which are required by law.
(e) In the event Funds are lost by reason of the Escrow Agent's breach of its fiduciary duty,
then the liability of the Escrow Agent to Master Developer, Town and /or TCMD shall be
limited to the Master Developer's, Town's and/or TCMD's direct damages, which shall
be computed by determining:
(i) the amount of Funds contributed by each Party;
(H) less the amount of any Escrow Fees previously paid;
(Hi) less the amount of Funds previously released pursuant to the terms of this Asphalt
Overlay Agreement; and
(iv) less the balance available in the Asphalt Overlay Account
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(f) The Escrow Agent shall not be liable to Master Developer, Town and/or TCMD for
indirect, punitive, special or consequential damage or loss, including, but not limited to,
lost profits.
(g) Escrow Agent shall have no liability for the failure of any Party to contribute their
respective portion of the Funds, and shall have no obligation to notify any Party of such
Party's or another Party's failure to deposit Funds, it being the Parties' intent that each
Party shall be responsible for the timely deposit of its pro rata share of the Funds at the
times and in the amounts required by the Development Agreement, and each Party shall
be responsible to monitor the other Parties' performance of their respective obligations to
deposit Funds based on their review of the statements and other financial records required
to be delivered pursuant to Section 6.
(h) Master Developer, Town and TCMD agree that the Escrow Agent (i) shall be obligated
only for the performance of the duties set forth in this Asphalt Overlay Agreement and
any other duties or obligations imposed by law, (ii) may rely on written notice, direction
and instruction jointly from Master Developer, Town and TCMD regarding the Funds,
including, without limitation, wire transfer instructions, (iii) may rely on any documents
from the Town, Master Developer or TCMD which appear to the Escrow Agent, in the
exercise of its fiduciary duty, to be genuine and to have been authorized by the Town,
Master Developer or TCMD and (iv) unless the documents appear questionable, the
Escrow Agent shall have no duty to make inquiry regarding the genuineness, accuracy or
validity of same.
(i) Escrow Agent may consult with legal counsel at its sole discretion, with the cost being
shared equally among the Town, TCMD and Master Developer in the event of any
dispute or question as to the construction of any of the provisions hereof or its duties
hereunder, and it shall incur no liability and shall be fully protected in acting in
accordance with the advice of such counsel.
5. Release of Funds. The Escrow Agent shall release funds to the Town according to the
following procedures:
(a) Joint Written Instruction for Release of Funds. The Town and TCMD shall submit a
joint written request to Escrow Agent ( "Joint Instruction ") for the release of Funds, or
portion thereof, for the asphalt overlay project which request shall include: (i) the amount
of Funds requested to be released from the Asphalt Overlay Account, (ii) the portion or
segment of public road for which an asphalt overlay will occur within the Village (at
Avon) project area (as defined in the Development Agreement), and (iii) instruction for to
whom the monies released from the Asphalt Overlay Account should be paid.
(b) Release of Funds. Upon receipt of by the Escrow Agent of Joint Instruction, properly
executed by Town and TCMD, the Escrow Agent is authorized and directed to deliver the
Funds in accordance with such instruction.
6. Financial Records. The Escrow Agent shall provide copies of all Asphalt Overlay Account
statements to Master Developer, Town, and TCMD on a monthly basis. The Escrow Agent,
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upon a request by any Party to this Asphalt Overlay Agreement, shall disclose any and all
financial records of the Asphalt Overlay Account to the requesting Party by the end of the
second (2 °a) business day after the date that a written request for financial records is received.
Statements shall be sent via the United States Postal Service's standard delivery.
7. Audit. The Master Developer, Town and TCMD shall each have the right to audit the
Asphalt Overlay Account and any of Escrow Agent's financial records related thereto at any
time. Upon receipt of a written request for audit thereof, Escrow Agent shall, within three
(3) business days after the date on which Escrow Agent receives the request, make all records
pertaining to the Asphalt Overlay Account available during normal business hours to the
Party(ies) requesting an audit. The Party(ies) requesting the audit shall bear their own
expenses in connection therewith unless the audit discloses any instance of Escrow Agent's
non - compliance with the terms and conditions of this Asphalt Overlay Agreement, in which
case Escrow Agent shall reimburse the Party(ies) conducting the audit for their reasonable
costs in expenses in connection therewith, including but not limited to the costs and expenses
of any such Party(ies) employees, agents and consultants engaged in and /or performing the
audit. Escrow Agent shall be responsible for all of its costs and expensed in connection with
any such audit.
8. Term. This Asphalt Overlay Agreement shall be in full force and effect until terminated by
one of the following methods ( "Term "):
(a) The Master Developer has fulfilled all obligations of the Master Developer to contribute
funds, the obligation of Town and TCMD to contribute funds is terminated, the Town
assumes all liability and responsibility for asphalt overlays in the Village (at Avon) in
accordance with Section 6.6(b) of the Development Agreement and the Master
Developer, Town and TCMD send written notification to Escrow Agent that the
requirements of this Section 8(a) of the Asphalt Overlay Agreement have been met,
provides instructions for the release and disbursement of Funds, and includes an
indemnification of the Escrow Agent for releasing such Funds as requested in the joint
written notice to terminate have been met and such agreement is thereby terminated; or,
(b) the Town, Master Developer, and TCMD provide a joint written notice to terminate this
Asphalt Overlay Agreement, which is: (i) signed by Town, Master Developer and
TCMD, (ii) notarized, (iii) provides instructions for the release and disbursement of
Funds, and (iv) includes an indemnification of the Escrow Agent for releasing such Funds
as requested in the joint written notice to terminate; or
(c) the Escrow Agent resigns as the Escrow Agent in accordance with Section 10. below.
9. Release of Funds Upon Termination. The Escrow Agent shall release and disburse all
Funds in the Asphalt Overlay Account to the Town by the end of ten (10) business days after
receiving joint written notice from the Town, Master Developer and TCMD that Asphalt
Overlay Agreement may be terminated in accordance with Section 6.6(b) of the
Development Agreement. The written notice shall include a statement that the Town
assumes all responsibility and liability for future asphalt overlays in accordance with the
terms of the Development Agreement and shall be copied to the Master Developer and
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TCMD. Notwithstanding the foregoing, if the Escrow Agent receives a notice of conflicting
claim, then the Escrow Agent shall hold the Funds in accordance with Section 11. below.
10. Resignation of Escrow Agent. The Escrow Agent may resign at any time from its
obligations under this Asphalt Overlay Agreement as follows:
(a) The Escrow Agent shall deliver a written and dated resignation to the other Parties.
(b) The resignation shall become effective upon the earlier to occur of: (i) the expiration of
sixty (60) days from the date of the resignation or (H) the date upon which Escrow Agent
completes transfer of the Funds to the Successor EA (defined below) pursuant to Section
10(d).
(c) It shall be joint duty of Master Developer, Town and TCMD to promptly secure a
Successor Escrow Agent ( "Successor EA ") and notify the Escrow Agent of the name and
address of the Successor EA no later than the effective date of Escrow Agent's
resignation under this Section 10. Master Developer, Town, and TCMD agree to
cooperate in a prompt, diligent and professional manner to secure a Successor EA.
Master Developer, Town, and TCMD each agree that consent and approval of a
Successor EA shall not be unreasonably withheld.
(d) The current Escrow Agent shall retain physical custody and control of the Funds until it
receives (i) written notification by Master Developer, Town, and TCMD of the naive and
address of the Successor EA, and (H) written notification from the Successor EA stating
that the Successor EA has accepted the appointment. Upon receipt of the written
notifications specified in this Section 10(d), Escrow Agent shall transfer the Funds to the
Successor EA within three (3) business days. In the event that the Escrow Agent does
not receive both the written notification from the Master Developer, Town, and TCMD
regarding the naive and address of the Successor EA and the acceptance of the
appointment by the Successor EA by the end of the sixtieth (60`h) day after the date of the
written resignation, the Escrow Agent may deliver the Funds to Town. Notwithstanding
the foregoing, if the Escrow Agent receives a notice of conflicting claim, then the Escrow
Agent shall hold the Funds in accordance with Section 11. below.
(e) The Escrow Agent shall have no responsibility for the appointment of a Successor EA
nor shall Escrow Agent any liability for the failure of Master Developer, Town, and
TCMD to appoint a Successor EA.
(f) Town shall promptly, but no later than ten (10) days from the effective date of the new
agreement, forward a copy of the new executed asphalt overlay escrow agreement
entered into by Master Developer, Town, TCMD, and the Successor EA to the Escrow
Agent.
11. Conflicting Claims. In the event of any disagreement between any of the Parties to this
Asphalt Overlay Agreement, or between any of them and any other person, resulting in
adverse claims or demands being made in connection with the matters covered by this
Asphalt Overlay Agreement, or in the event that Escrow Agent, in good faith, be in doubt as
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to what action it should take hereunder, Escrow Agent may, at its option, refuse to comply
with any claims or demands on it, or refuse to take any other action hereunder, so long as
such disagreement continues or doubt exists, and in any such event, Escrow Agent shall not
be or become liable in any way or to any person for its failure or refusal to act, and Escrow
Agent shall be entitled to continue so to refrain from acting until (i) the rights of all interested
parties shall have been fully and finally adjudicated by a court of competent jurisdiction, or
(ii) all differences shall have been adjudged and all doubt resolved by agreement amount all
of the interested persons, and Escrow Agent shall have been notified thereof in writing
signed by all such persons. Notwithstanding the foregoing, Escrow Agent may in its
discretion obey the order, judgment, decree or levy of any court with jurisdiction and Escrow
Agent is hereby authorized in its sole discretion, to comply with and obey any such orders,
judgments, decrees or levies. The rights of Escrow Agent under this Section are cumulative
of all other rights which it may have by law or otherwise.
12. Indemnification. To the extent permitted by law, Master Developer, Town, and TCMD,
jointly and severally agree to indemnify and hold harmless the Escrow Agent and its officers,
directors, employees, and agents from any and all "Claims" and "Losses" as defined in this
Section 12., as a result of or in connection with the Escrow Agent's acts under this Asphalt
Overlay Agreement, other than claims made by Master Developer, Town, and /or TCMD for
gross negligence of Escrow Agent, or willful misconduct of Escrow Agent.
(a) "Claims" shall mean all claims, lawsuits, causes of action, or other legal actions and
proceedings of whatever nature brought against the Escrow Agent or any officer, director,
employee, or agent, whether by way of direct action, counterclaim, cross action, or
impleader, even if such claim is groundless, false, or fraudulent, so long as the claim,
lawsuit, cause of action, or other legal proceeding is alleged or determined, directly or
indirectly, to arise out of, result from, relate to, or be based upon in whole or in part: (i)
acts or omissions of Master Developer, Town, or TCMD, (ii) appointment of the Escrow
Agent as escrow agent under this Asphalt Overlay Agreement, or (iii) performance by the
Escrow Agent of its powers and duties under this Asphalt Overlay Agreement.
(b) "Losses" shall mean losses, costs, damages, expenses, judgments, and liabilities of
whatever nature (including, but not limited to, attorneys, accountants, and other
professional's fees, litigation and court costs and expenses, and amounts paid in
settlement), directly or indirectly resulting from, arising out of, or relating to one or more
Claims. Upon the written request of Escrow Agent or any officer, director, employee, or
agent of Escrow Agent, Master Developer, Town, and TCMD agrees to jointly assume
the investigation and defense of Escrow Agent against any Claims or Losses, including
the employment of counsel acceptable to Escrow Agent and the payment of all expenses
related thereto, and, notwithstanding any such assumption, the Escrow Agent shall have
the right, and Master Developer, Town, and TCMD agree to pay the costs and expense, to
employ separate counsel with respect to any such Claim and to participate in the
investigation and defense thereof. Master Developer, Town and TCMD and Escrow
Agent shall use all reasonable efforts to fully cooperate with each other in the defense of
any Claims or Losses.
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13. Notices. Any notice or communication, exclusive of periodic statements, required under this
Asphalt Overlay Agreement between the Parties must be in writing, and may be given either
personally or by registered or certified mail, return receipt requested. If given by registered
or certified mail, the same shall be deemed to have been given and received on the first to
occur of (a) actual receipt by any of the addressees designated below as the Parry to whom
notices are to be sent, or (b) five (5) days after a registered or certified letter containing such
notice, properly addressed, with postage prepaid, is deposited in the United States mail. If
personally delivered, a notice shall be deemed to have been given when delivered to the party
to whom it is addressed. Any Party hereto may at any time, by giving written notice to the
other Party hereto as provided in this Section 13, designate additional persons to whom
notices or communications shall be given, and designate any other address in substitution of
the address to which such notice or communication shall be given. Such notices or
communications shall be given to the Parties at their addresses set forth below:
To Escrow Agent:
With a Required Copy to:
FirstBank Escrow Services, LLC
1707 N Main St.
Longmont, CO 80501.
Attn: Carol Croft
To Master Developer:
With a Required Copy to:
Traer Creek LLC
Otten, Johnson, Robinson, Neff & Ragonetti,
P.O. Box 9429
P.C.
0101 Fawcett Road, Suite 210
950 17th Street, Suite 1600
Avon, CO 81620
Denver, Colorado 80202
Attn: Marcus Lindholm, Manager
Attention: Munsey L. Ayers, Esq. and
Kimberly Martin, Esq.
To Town:
With a Required Copy to:
Town of Avon
Town of Avon
P.O. Box 975
P.O. Box 975
One Lake Street
One Lake Street
Avon, CO 81620
Avon, CO 81620
Attn: Town Manager
Attn: Town Attorney
To TCMD:
With a Required Copy to:
McGeady Sisneros, P.C.
Traer Creek Metropolitan District
450 E. 17`h Avenue, Suite 400
141 Union Boulevard, Suite 150
Denver, CO 80203
Lakewood, CO 80228
Attn: Mary Jo Dougherty, Esq.
Attn: Lisa Jacoby
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14. Funds Unencumbered.
(a) Master Developer, Town and TCMD each warrant to the others that the respective Funds
placed in the Asphalt Overlay Account are not subject to, nor will they become subject
to, any claims of creditors of the Party contributing such Funds. Master Developer,
Town and TCMD each agree that each Parry will not use the Funds as security for any
transaction, nor will Master Developer, Town or TCMD pledge the Funds or list the
Asphalt Overlay Account as an asset on any application to obtain credit, or to obtain real
or personal property.
(b) Master Developer, Town and TCMD each warrant that, during the term of this Asphalt
Overlay Agreement, the Funds shall remain unencumbered by any legal interest that
would violate the Asphalt Overlay Agreement.
(c) The Escrow Agent will have no responsibility at any time to ascertain whether or not any
security interest exists in any Funds in the Asphalt Overlay Account.
(d) The Escrow Agent will promptly notify the other Parties within two (2) business days if
there is an attempt to encumber the Funds.
15. Third -Party Beneficiary, Nothing contained in this Asphalt Overlay Agreement is intended
to or shall create a contractual relationship with, cause of action in favor of, or claim for
relief for, any third party who is not a party to this Asphalt Overlay Agreement. Absolutely
no third party beneficiaries are intended by this Asphalt Overlay Agreement. Any third -party
receiving a benefit from this Asphalt Overlay Agreement is an incidental and unintended
beneficiary only.
16. Survival of Terms and Conditions. The Parties understand and agree that all terms and
conditions of this Asphalt Overlay Agreement that require continued performance,
compliance, or effect beyond the termination date of this Asphalt Overlay Agreement shall
survive such termination date and shall be enforceable in the event of a failure to perform or
comply.
17. Assignment and Release. All or part of the rights, duties, obligations, responsibilities, or
benefits set forth in this Asphalt Overlay Agreement shall not be assigned by any Party
without the express written consent of the other Parties. Any written assignment shall
expressly refer to this Asphalt Overlay Agreement, specify the particular rights, duties,
obligations, responsibilities, or benefits so assigned, and shall not be effective unless
approved in writing, signed and notarized by the other Parties, and with respect to an
assignment of a Party's obligations or responsibilities shall be expressly assumed in writing
by the assignee. Any attempted assignment without written consent by all other Parties to
this Asphalt Overlay Agreement shall be void ab initio and unenforceable.
18. Article X, Section 20 /TABOR. The Parties understand and acknowledge that the Town and
TCMD are subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties
do not intend to violate the terns and requirements of TABOR by the execution of this
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Asphalt Overlay Agreement. It is understood and agreed that this Asphalt Overlay
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 Asphalt Overlay
Agreement to the contrary, all payment obligations of the Town and TCMD are expressly
dependent and conditioned upon the continuing availability of funds beyond the term of the
Town's and TCMD's current fiscal period ending upon the next succeeding December 31.
Financial obligations of the Town and TCMD 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 the Town and of
TCMD, and other applicable law. Nothing herein shall be construed to modify, diminish,
supplement or supersede the provisions in the Development Agreement concerning default
for non - payment of by Town and/or TCMD in the performance of their respective
obligations to deposit Funds into the Asphalt Overlay Account.
19. Governing Law, Venue, and Enforcement. This Asphalt Overlay Agreement shall be
governed by and interpreted according to the law of the State of Colorado. Venue for any
action arising under this Asphalt Overlay 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 Asphalt Overlay 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 Asphalt Overlay Agreement.
20. Construction and Interpretation. 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 Asphalt Overlay Agreement. If there is any conflict between the language of this
Asphalt Overlay Agreement and any exhibit or attachment, the language of this Asphalt
Overlay Agreement shall govern. If there is any conflict between the language of this
Asphalt Overlay Agreement and the Development Agreement, then language in the
Development Agreement shall control between the Town, TCMD and Master Developer, so
long as such interpretation does not affect the rights or obligations of the Escrow Agent, and
the language of the Asphalt Overlay Agreement shall control between the Escrow Agent and
any of the Parties.
21. No Waiver of Rights. A waiver by any Parry to this Asphalt Overlay Agreement of the
breach of any tenn or provision of this Asphalt Overlay Agreement shall not operate or be
construed as a waiver of any subsequent breach by any Party. No covenant or term of this
Asphalt Overlay Agreement shall be deemed to be waived by any Party except in writing
signed by a person expressly authorized to sign such waiver for such Party and any written
waiver of a right shall not be construed to be a waiver of any other right or to be a continuing
waiver unless specifically stated. Notwithstanding any provision to the contrary in this
Asphalt Overlay Agreement, no term of condition herein shall be construed or interpreted as
a waiver, either express or implied, of any immunities, rights, benefits or protections
provided to the Town and TCMD under the Colorado Governmental Immunity Act.
22. Entire Agreement; Amendments. This Asphalt Overlay Agreement constitutes the entire
agreement and understanding of the parties with respect to the subject matter herein, and is
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intended as the Parties' final expression and complete and an exclusive statement of the
terms thereof, superseding all prior or contemporaneous agreements, representations,
promises and understandings, whether written or oral. This Asphalt Overlay Agreement may
be amended or modified only by an instrument in writing signed by all Parties with express
approval from the Commission. All exhibits referred to in this Asphalt Overlay Agreement
are incorporated herein by reference.
23. Force Majeure. Escrow Agent shall not be liable to the Town, TCMD or Master Developer
for any loss or damage arising out of any acts of nature, strikes or transmission line failure,
war, terrorism, or any other act or circumstances beyond the reasonable control of Escrow
Agent.
24. Calculation of Days. If the last day for any act, deadline, expiration of a right, or date to
provide a notice falls upon a Saturday, Sunday or legal holiday observed in the State of
Colorado as set forth in C.R.S. §24 -11 -101, then the next business day which is not a
Saturday, Sunday or such legal holiday shall be deemed the last day.
25. Counterparts. This Asphalt Overlay Agreement may be executed in multiple counterparts,
each of which shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. All joint written instructions from the Town and
TCMD to the Escrow Agent shall also be permitted to be executed in multiple counterparts.
[SIGNATURE PAGE FOLL0WSJ
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IN WITNESS WHEREOF, Escrow Agent, Master Developer, Town and TCMD have
executed this Asphalt Overlay Agreement as of the date first written above.
THIS ASPHALT OVERLAY AGREEMENT IS HEREBY ENTERED INTO BY THE
UNDERSIGNED PARTIES:
Escrow Agent: FirstBank Escrow Services, LLC
Un
Carol Croft, Escrow Officer
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
2013, by
Carol Croft, Escrow Officer
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARY PUBLIC
My commission expires:
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Page 12 of 15
Master Developer: Traer Creek LLC
By:
Marcus Lindholm, Manager
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this
2011, by Marcus Lindholm, Manager.
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARY
My conuni
to
IL
i vzo ym
Asphalt Overlay Agreement — FINAL
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Page 13 of 15
day of
Town: Town of Avon, Colorado
By:
Rich Carroll, Mayor
STATE OF COLORADO
COUNTY OF EAGLE
Attest:
cK y, o Clerk
ss.
The foregoing instrument was acknowledged before me this --�Lp day of a Qc,
ap 13 by Rich Carroll, Mayor. V
WITNESS MY HAND AND OFFICIAL SEAL.
�Z -
NOT PUBLIC
My co ission expires:(
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V9 — December 3, 2012 Heil
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My effai s M Eked 05/tV"
Traer Creek Metropolitan District
Dan Leary, President
STATE OF COLORADO )
ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this day of
2011, by Dan Leary, President Traer Creek Metropolitan District.
WITNESS MY HAND AND OFFICIAL SEAL.
NOTARYPUBLIC
My commission expires:
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