TC Council Packet 08-14-2012
Heil Law & Planning, LLC Office: 303.975.6120
2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337
Denver, CO 80222 E-Mail: eric@heillaw.com
HEIL LAW
TO: Honorable Mayor Carroll and Town Council Members
CC: Patty McKenny , Acting Town Manager; Larry Brooks, Advisor
FROM: Eric Heil, Town Attorney
RE: CARADA
DATE: August 13, 2012
Summary: Attached are two documents. The first is my revisions to Articles 1 through 4 of the
Consolidated, Amended and Restated Annexation and Development Agreement (“CARADA”). The second
document is revisions to Article 6 of the CARADA prepared by Traer Creek Metropolitan District compared
to comments I provided on July 29, 2012. The comments in the second document are the comments of
McGeady Sisneros on behalf of Traer Creek Metropolitan District.
Thanks, Eric
& PLANNING, LLC
Heil Comments – Articles 1 through 4, V9 CARADA
August 9, 2012
CONSOLIDATED, AMENDED AND RESTATED
ANNEXATION AND DEVELOPMENT AGREEMENT
FOR THE VILLAGE (AT AVON)
THIS CONSOLIDATED, AMENDED AND RESTATED ANNEXATION AND
DEVELOPMENT AGREEMENT FOR THE VILLAGE (AT AVON) (as amended from time to
time, this “Development Agreement”) is made and entered into as of __________________,
2012 (“Execution Date”) by and among the Parties and the Limited Parties, and with the consent
of the Developer Affiliates, BNP and Lenders.
RECITALS
This Development Agreement is made with reference to the following facts:
A. Initially capitalized words and phrases used in this Development Agreement have
the meanings set forth in Exhibit G, which definitions are incorporated herein.
B. Pursuant to the Original Agreement, the Town and the Original Owners set forth
the terms and conditions upon which the land legally described in Exhibit A of the Original
Agreement would be annexed into and developed under the jurisdiction of the Town, such legal
description having been updated to reflect the Recording of various subdivision plats subsequent
to the Original Effective Date and attached as Exhibit A hereto and incorporated herein (the
original and such updated legal description comprising the “Property”).
C. Subsequent to the Original Effective Date, Town Council approved the Service
Plans and the formation of TCMD and VMD for the general purposes contemplated by the
Original Agreement and more specifically described in the Service Plans.
D. Subsequent to the Original Effective Date: (i) the other entities comprising the
Original Owner were merged into EMD, which became the sole Original Owner; and
(ii) pursuant to Section 1.4 of the Original Agreement, EMD specifically granted to TCLLC, in
writing, the right to amend the Original Agreement as to all of the Property except Planning
Area M as designated in the Original PUD Guide and the Original Agreement (now re-
designated Planning Area I pursuant to the PUD Guide), with respect to which EMD retained the
right to amend the Original Agreement.
E. As of the Effective Date, the current fee owners of the real property comprising
the Property are, as their respective interests appear of Record: TC-RP; EMD; TC Plaza;
TC-WMT; TC-HD; Alkali Company, a Colorado limited partnership; TCMD; the District
Directors; the Town; Buffalo Ridge Affordable Housing Corporation, a Colorado corporation;
Buffalo Ridge II LLLP, a Colorado limited liability limited partnership; Eagle River Fire
Protection District, a quasi-municipal corporation; Eagle County Health Service District, a
quasi-municipal corporation; and Department of Transportation, State of Colorado.
F. Other than EMD, each of the Developer Affiliates and other Landowners referred
to in Recital E acquired title to the portion of the Property it owns subject to the terms and
conditions of the Original Agreement, including, without limitation, Section 1.4 of the Original
Heil Comments – Articles 1 through 4, V9 CARADA
August 9, 2012
2
Agreement. None of the conveyances referred to in Recital E were accompanied by a specific
written grant of the power to amend the Original Agreement as provided in Section 1.4 of the
Original Agreement. Accordingly, with the exception of the Town and EMD (by virtue of being
parties to the Original Agreement), TCMD (by virtue of becoming a party to the Original
Agreement pursuant to the First Amendment thereto) and TCLLC (by virtue of the assignment
described in Recital D), no Landowner or other person or entity has been granted any power to
consent or object to any amendment of the Original Agreement. As provided in Section 1.4 of
the Original Agreement, no person or entity other than the Town, EMD, TCMD and TCLLC is
required or has a right to execute or acknowledge this Development Agreement as a condition of
this Development Agreement being legally effective and binding on all parties to the Original
Agreement and all Landowners.
G. For ease of administration and in recognition of the fact the ownership of the
Property has and will continue to become diverse as the Project develops, the Developer
Affiliates have designated Master Developer to act on their behalf for all purposes in connection
with this Development Agreement, including but not limited to negotiation and execution of this
Development Agreement and any future amendments hereto.
H. TCLLCMaster Developer, EMD, certain of the Developer Affiliates, TCMD, the
Town and other parties asserted various legal claims in the consolidated cases 2008 CV 385 and
2010 CV 316 (collectively, consolidated as Case No 2008 CV 385, the “Litigation”) and the
parties to the Litigation desired to avoid the cost of trial, the cost of a protracted appellate
process, the uncertainty and potential costs of remand of portions of the Litigation to the trial
court, and the uncertainty of the final outcome of Litigation. Therefore, the parties to the
Litigation entered into that certain Settlement Term Sheet made and entered into the 7th day of
October, 2011, by and between the Town, BNP, TCMD, TCLLC, TC-RP, TC Plaza, EMD,
TC-HD LLC and TC-WMT (the “Settlement Term Sheet”).
I. In accordance with the terms and conditions of the Settlement Term Sheet, the
Parties have entered into this Development Agreement to implement pertinent terms of the
Settlement Term Sheet, to effect a full and final settlement of all disputes pertaining to the
Original Agreement which were the subject of the Litigation, and to resolve other potential
disputes related to development entitlements, interpretation of Original Agreement, equitable
allocation of responsibilities and rights, and other matters which are addressed in this
Development Agreement and related documents. The Town’s final non-appealable approval of
this Development Agreement establishes and implements specific terms and conditions of the
Settlement Term Sheet and shall be binding on the Parties hereto and also shall be binding on all
parties to the Settlement Term Sheet.
J. Various circumstances and changed conditions require mutual execution and
approval of this Development Agreement in order to: (i) clarify and implement the intent of the
parties to the Original Agreement to promote development of the Property; (ii) amend and restate
the Original Agreement in order to implement the Settlement Term Sheet; and (iii) facilitate
dismissal of the Litigation with prejudice and minimize the potential for future legal disputes.
K. During the period between the Original Effective Date and the Execution Date
and in reliance on the revenue sharing and infrastructure financing arrangements established by
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August 9, 2012
3
the Original Agreement, the Districts, the PICs, Master Developer and/or the Developer
Affiliates have made large investments in Public Improvements located both within the Property
and outside of the Property. The foregoing has resulted in:
(1) Full satisfaction of the following obligations of TCMD under the terms
and conditions of the Original Agreement, with the provisions establishing such
obligations accordingly deleted from this Development Agreement:
(a) Construction of the Interstate 70 Interchange and the Highway 6
Connector Road as defined in § 4.2 of the Original Agreement;
(b) Payment of the Chapel Place Exaction as defined in § 4.3(a)(ii) of
the Original Agreement, in the amount of $100,000;
(c) Construction of the Phase 1 Improvements and the Phase 2
Improvements as defined in § 4.3(b)(i) and (ii) of the Original Agreement;
(d) Construction of the Swift Gulch Road Improvements as defined in
§ 4.3(c) of the Original Agreement;
(e) Payment of the Highway 6 Trail Exaction as defined in § 4.3(g) of
the Original Agreement; and
(f) Those obligations set forth in § 4.3(j) of the Original Agreement.
(2) Partial satisfaction of the following obligation of TCMD under the terms
and conditions of the Original Agreement, with performance of the remaining obligations
waived pursuant to the Settlement Term Sheet and the provisions establishing such
obligation accordingly deleted from this Development Agreement:
(a) Payment of nine (9) installments, in the amount of $200,000 each,
of the ten (10) such installments comprising the East Avon Exaction as defined in
§ 4.3(a)(i) of the Original Agreement, the obligation to make the final installment
being extinguished by this Development Agreement as contemplated in the
Settlement Term Sheet.
(3) Full satisfaction of the following obligations of Owner (as defined in the
Original OwnersAgreement) under the terms and conditions of the Original Agreement,
with the provisions establishing such obligations accordingly deleted from this
Development Agreement:
(a) The two property conveyances comprising the Public Works
Dedication as defined in § 4.3(d) of the Original Agreement;
(b) Reimbursement to the Town of those costs required to be
reimbursed pursuant to § 4.3(e) of the Original Agreement.
Heil Comments – Articles 1 through 4, V9 CARADA
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L. Continued development of the Project will require substantial additional
investments in Public Improvements, and completion of these additional Public Improvements
will require substantial additional investments by the Districts, the PICs, Master Developer, the
Developer Affiliates and/or other Landowners. All such completed and to be constructed Public
Improvements serve and will serve, respectively, the needs of the Project and the Town. Such
prior and future investments can be supported only if there are assurances that development of
the Project will be permitted to proceed to ultimate completion as contemplated in this
Development Agreement and the PUD Guide.
M. The Vested Property Rights Statute and the Municipal Code authorize the Town
to enter into development agreements which provide for the vesting of property development
rights with a term of greater than three (3) years.
N. Town Council has determined that granting Vested Property Rights for the
duration of the Vesting Term will promote reasonable certainty, stability and fairness in the land
use planning process, stimulate economic growth, secure the reasonable investment-backed
expectations of Landowners and foster cooperation between the public and private sectors in the
area of land use planning and development.
O. Town Council specifically finds that this Development Agreement provides
public benefits including but not limited to the following specific public benefits:
(i) development of the Property in accordance with the applicable development standards in the
Development Plan and, to the extent not controlled by the Development Plan, the Municipal
Code; (ii) economic development through construction anticipated to occur in connection with
development of the Project; (iii) economic development through the development of various
commercial and residential uses that enhance, complement and reinforce the Town’s existing
economy, commercial base and ad valorem property tax base; (iv) development of housing to
meet the needs of the Avon community; (v) development of significant property within the
Town’s municipal boundaries which promotes economies of scale in the provision of public
services; and (vi) establishment of a public-private cooperative arrangement that promotes the
availability of capital for Public Improvements, and promotes the competitiveness and viability
of private development within the Town and the Project.
P. In exchange for these benefits and the other benefits to the Town contemplated by
this Development Agreement, together with the public benefits served by the orderly
development of the Property, this Development Agreement and the Vested Property Rights
established herein are intended to provide assurance to Master Developer, EMD, the Developer
Affiliates, other Landowners, the Districts, lenders providing financing for development of the
Project from time to time, BNP and purchasers of bonds or holders of other forms of debt issued
or to be issued by the Districts that development of the Property pursuant to the terms and
conditions of the Development Plan and the Approved SSDPs can occur without impediment or
impairment of the Vested Property Rights.
Q. The Limited Parties have executed this Development Agreement only for the
limited purposes expressly set forth herein and with the express understanding that the Limited
Parties shall not be construed to have any rights, duties, obligations or remedies arising under
this Development Agreement except to the extent expressly set forth herein with respect to each
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Limited Party and, accordingly, the rights, duties, obligations and remedies of each Limited
Party shall be strictly limited to those expressly set forth in this Development Agreement as a
right, duty, obligation or remedy of such Limited Party.
R. Lenders have executed this Development Agreement for the sole purpose of
evidencing their respective consent and subordination to the Recording of this Development
Agreement, but without thereby acquiring the status of a Party or otherwise being subject to any
obligation or acquiring any enforcement right or remedy arising under this Development
Agreement.
S. BNP, while not a Party, has executed a written consent to this Development
Agreement in order to affirm BNP’s approval of the Financing Plan and related matters
addressed in this Development Agreement. Additionally, BNP is an Intended Beneficiary with
respect to BNP’s right to enforce certain provisions of this Development Agreement, including
but not limited to BNP’s right to participate on the AURA board of directors with respect to any
urban renewal plans for any portion of the Property.
T. As between the Town, AURA, TCMD and VMD, this Development Agreement
constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105, and
such Parties intend their respective obligations hereunder to be enforceable by specific
performance and/or other equitable remedies in addition to any remedies otherwise available at
law.
U. As between the Town, Master Developer, EMD, Developer Affiliates and other
current or future Landowners, this Development Agreement constitutes a development
agreement granting Vested Property Rights for a period in excess of three (3) years in
accordance with Section 24-68-104(2) of the Vested Property Rights Statute.
V. The Parties intend this Development Agreement to amend and restate in its
entirety the Original Agreement by consolidating the original document and subsequent
amendments thereto into a single document for ease of reference, and additionally by
incorporating the amendments necessary and desirable to implement applicable terms and
conditions of the Settlement Term Sheet.
AGREEMENT
NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth
in this Development Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
GENERAL PROVISIONS
1.1 Incorporation of Recitals. The Recitals are incorporated into and made
substantive provisions of this Development Agreement.
1.2 Effectiveness and Recording of Development Agreement. This Development
Agreement shall be effective as of the Effective Date., and the Parties shall cause this
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Development Agreement to be Recorded on the Effective Date or as promptly thereafter as is
reasonably practicable. Any delay or failure to Record this Development Agreement shall not
negate or impair the effectiveness of this Development Agreement as between the Parties and
any other parties having notice of this Development Agreement. The effectiveness and/or
Recording of this Development Agreement shall not be construed to negate the effectiveness of
any approvals granted by Town Council prior to the Effective Date or any actions of Master
Developer, EMD, the Districts, the PICs or any other Landowner taken in connection with
development of the Project prior to the Effective Date. All such approvals and actions are hereby
ratified by the Parties. As of the Effective Date, the Settlement Term Sheet shall be construed to
be of no further force or effect, its terms and conditions having been incorporated into and
implemented by this Development Agreement, the PUD Guide, the Tank Agreement, the TCMD
Reissue Documents and/or otherwise performed in full. As of the Effective Date, the obligations
of each party to the Original Agreement to any other party to the Original Agreement are
expressly discharged, terminated and of no further force or effect except to the extent such
obligations are expressly incorporated and set forth in this Development Agreement.
1.3 Covenants. Upon Recording, the provisions of this Development Agreement shall
constitute covenants and servitudes that touch, attach to and run with the land comprising the
Property and, except as otherwise provided in Section 1.5 with respect to amendments to this
Development Agreement, the burdens and benefits of this Development Agreement shall bind
and inure to the benefit of all estates and interests in the Property and all successors in interest to
the Parties, the Developer Affiliates and any other Landowners as of the Effective Date.
1.4 Vesting Term; Term of Agreement. Phased development of the Project as
contemplated under this Development Agreement and the Development Plan involves significant
acreage and density which will require substantial investment and time to complete.
(a) Vesting Term. Due to the size and phasing of the Project, the
potential for development of the Project to be affected by economic and
financial cycles, the effect of national and statewide markets with regard to
retailers, accommodations industry and builders, and the limitation of
absorption rates by the local market and similar factors, the term of the Vested
Property Rights established pursuant to Section 2.4 shall continue through and
including October 20, 2039 (“Vesting Term”) On October 21, 2039, the Vested
Property Rights shall be deemed terminated and of no further force or effect;
provided, however, that such termination shall not affect:
(i) annexation of the Property to the Town;
(ii) any common-law vested rights obtained prior to such termination;
(iii) any right arising from Town building permits, development
approvals or other zoning entitlements for the Property or the Project which were
granted or approved prior to expiration of the Vesting Term of this Development
Agreement; or,
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August 9, 2012
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(iv) except as otherwise expressly set forth in Sections [identify
specific sections, if any, where an obligation, right or remedy is agreed to be
coterminous w/ expiration of the Vesting Term] any obligation of a Party under
this Development Agreement that has not been fully performed as of the date on
which the Vesting Terms expiresother obligations in this Development Agreement
which are not related to Vested Property Rights.
(b) Term of Agreement. Notwithstanding expiration of the Vesting
Term, the term of this Development Agreement and the Parties’ obligations
hereunder (the “Term”) shall commence on the Effective Date and shall
continue in full force and effect until the date on which, pursuant to
Section Error! Reference source not found., the Town is entitled under the
terms of this Development Agreement to terminate the Tax Credit.
Notwithstanding the foregoing, the Town may elect to extend the Term of the
Agreement in accordance with Section 6.1. In no event shall the Term expire
before the Town’s obligation to maintain the Tax Credit in effect pursuant to
Section 6.2(a) has terminated as provided in Section 6.2(a).
(c) Obligation to Maintain Tax Credit. Without limitation of the
foregoing, the Town’s obligation to maintain the Tax Credit in effect pursuant to
Sections 4.2(a) and Error! Reference source not found. shall survive
expiration of the Vesting Term and shall continue in full force and effect until
the conditions set forth in Section Error! Reference source not found. have
been fully satisfied.
1.5 Amendment of Agreement. This Development Agreement may be amended or
terminated only by mutual written consent of the Town, TCMD, TCLLC and EMD (but not by
their respective successors or assigns or by any non-Party Landowner) 1following the public
notice and public hearing procedures required for approval of this Development Agreement;
provided, however:
(a) Specific Grant of Amendment Rights. For purposes of this
Section 1.5 only, the terms “TCLLC” and “EMD” mean TCLLC, EMD and
those additional parties, if any, to whom TCLLC or EMD has specifically
granted, in writing, the power to enter into such amendments. No entity to
whom TCLLC or EMD has granted the power to enter into such amendments
may further assign or grant such power to another entity except to the extent
specifically included within the grantee’s original grant from TCLLC or EMD.
(b) Limited Parties. The written consent of a Limited Party (other
than EMD, as otherwise set forth in this Section 1.5) shall not be required
except to the extent the proposed amendment directly and expressly modifies a
provision of this Development Agreement that establishes a right, obligation or
remedy of such Limited Party.
1 It does not make sense for TCLLC and EMD to require their consent to amendments if they do not have an interest
in the property. TCMD may have a successor or assign in the future.
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August 9, 2012
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(c) BNP. The Parties acknowledge that until TCMD has fully
performed its the obligations under the TCMD Reissue Documents have been fully performed,
TCMD’s agreement to any future amendment to the provisions of Article 4, Error! Reference
source not found. or Error! Reference source not found. of this Development Agreement is
subject to BNP’s prior written consent.
1.6 Cooperation in Defending Legal Challenges. If any legal or equitable action or
other proceeding is commenced by a third party challenging the effectiveness of the ordinance
approving this Development Agreement orand the Development Plan, the effectiveness of this
Development Agreement or the Development Plan, or the validity of any provision of this
Development Agreement or the Development Plan, the Parties shall in good faith cooperate in
defending such action or proceeding and shall each bear their own expenses in connection
therewith. This section shall not be construed to require the Town to legally challenge any
referendum proceeding and the Town shall administer, process and/or legally challenge any
referendum proceeding in the Town’s sole discretion in accordance with the Town of Avon Home
Rule Charter and applicable provisions of the Colorado Constitution and state statutes
notwithstanding any other provision of this Development Agreement.2 Unless the Parties
otherwise agree, each Party shall select and pay its own legal counsel to represent it in
connection with such action or proceeding. The Parties acknowledge that the obligations of the
Town and TCMD pursuant to this Section 1.6 are subject to compliance with the requirements of
Section 20 of Article 10 of the Colorado constitution. Accordingly, the Town and TCMD shall in
good faith take such steps as may be available to them in response to the filing of any action or
proceeding addressed above to set aside, hold and irrevocably pledge adequate present cash
reserves to fund the reasonably anticipated costs of defending such action or proceeding;
provided, however, if either the Town or TCMD is not in a position to fund from present cash
reserves all or any portion of the reasonably anticipated costs of defending such action or
proceeding, such Party’sthe obligation of Town and TCMD pursuant to this Section 1.6 shall be
subject to annual appropriation. The failure of Town or TCMD or any other Party to this
Development Agreement to appropriate funds to defend such action or proceeding shall not be
deemed to be a default of this Development Agreement.3
1.7 Role of Master Developer. For the reasons described in Recital G, the Developer
Affiliates have designated Master Developer to act on behalf of themselves and their respective
successors in interest with respect to and for all purposes of this Development Agreement. The
Developer Affiliates may designate a replacement Master Developer from time to time, or may
terminate the role of the Master Developer, by delivery of written notice thereof to the Town and
to TCMD which is signed by a majority of the Developer Affiliates owning any part of the
Property as of the date of such notice. The designation of a replacement Master Developer by the
Developer Affiliates shall not require an amendment to this Agreement and shall not require the
mutual consent of Town, TCMD or BNP.
1.8 Rights and Obligations of Limited Parties and Intended Beneficiaries.
2 I do not believe a municipality can enter into an agreement binding it to legally challenge valid referendums from
citizens. Furthermore, any attempt to do so would likely invite referendum, lawsuits and recall actions.
3 The agreement to cooperate is similar to the existing agreement. Each party should bear its own costs and no party
should be obligated to incur costs.
Heil Comments – Articles 1 through 4, V9 CARADA
August 9, 2012
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(a) Limited Parties. As more particularly described in Recital Q,
each Limited Party is executing this Development Agreement solely with respect to a limited
obligation of such Limited Party. With respect to each Limited Party, such obligations, rights
and remedies are expressly limited as follows:
(i) AURA. AURA’s obligations arising under this Development
Agreement are limited to those set forth in Section 1.1. AURA’s rights and remedies
arising under this Development Agreement are as set forth in Section Error! Reference
source not found..
(ii) EMD. EMD’s obligations arising under this Development
Agreements are limited to those set forth in Section Error! Reference source not
found.. EMD’s rights and remedies arising under this Development Agreement are as set
forth in Section Error! Reference source not found..
(iii) The Commercial PIC. The Commercial PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section Error!
Reference source not found.. The Commercial PIC’s rights and remedies arising under
this Development Agreement are as set forth in Section Error! Reference source not
found..
(iv) The Mixed Use PIC. The Mixed-Use PIC’s obligations arising
under this Development Agreement are limited to those set forth in Section Error!
Reference source not found.. The Mixed-Use PIC’s rights and remedies arising under
this Development Agreement are as set forth in Section Error! Reference source not
found..
(b) Intended Beneficiaries. Except to the extent an Intended
Beneficiary undertakes obligations as an Applicant in connection with the development of a Site
and/or execution of a Public Improvement Agreement as provided in this Development
Agreement, no Intended Beneficiary is subject to any obligation arising solely under this
Development Agreement. Except with respect to the rights and remedies of such Intended
Beneficiaries as set forth in Section Error! Reference source not found., no Intended
Beneficiary has acquired any enforcement right or remedy arising solely under this Development
Agreement.
ARTICLE 2
ANNEXATION, ZONING AND VESTED PROPERTY RIGHTS
2.1 Annexation. Annexation of the Property was accomplished in accordance with
the Original Agreement and the Colorado Municipal Annexation Act of 1965, as amended
(C.R.S. §§ 31-12-101, et seq.) as in effect in 1998. Consistent with the foregoing and in
implementation of the Settlement Term Sheet, this Development Agreement ratifies annexation
of the Property.
2.2 PUD Zoning. Planned unit development (PUD) zoning of the Property was
accomplished in accordance with the Original PUD Guide. Consistent with the foregoing and in
implementation of the Settlement Term Sheet, this Development Agreement ratifies the PUD
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zoning of the Property pursuant to the Original PUD Guide, ratifies each administrative and each
formal amendment to the PUD Guide and/or PUD Master Plan accomplished prior to the
Effective Date, and ratifies all development that has occurred within the Property pursuant to the
Original PUD Guide. The ordinance approving this Development Agreement approved, among
other matters pertinent to implementation of the Settlement Term Sheet, the PUD Guide.
Concurrently with Recording of this Development Agreement, the Parties will cause Recording
of the PUD Guide and PUD Master Plan. During the Term, the Property shall be zoned PUD
pursuant to and as set forth in the PUD Guide and the PUD Master Plan.. Upon expiration of the
Term, the PUD Guide and the PUD Master Planany amendments thereto shall continue to be the
effective zoning of the Property and the effective development standards for the Property in
accordance with their respective terms; provided,; however, the Property shall then be subject to
all general powers and authority of the Town concerning zoning, rezoning, planned unit
development, subdivision, land use regulation, building regulation and other general regulation
of the Town to the extent not in conflict with any express terms of the PUD Guide and the PUD
Master Plan.
2.3 Vesting of Property Rights. The Original Agreement, together with the Original
PUD Guide, and all approved amendments to the Original Agreement and the Original PUD
Guide, was a Site Specific Development Plan with respect to which the Town granted Vested
Property Rights with respect to such Site Specific Development Plans for a term of thirty-five
(35) years from the Original Effective Date. Consistent with the foregoing and in
implementation of the Settlement Term Sheet, this Development Agreement ratifies the Vested
Property Rights established by the Original Agreement and, as described in Section 1.4(a),
extends the term of such Vested Property Rights (including with respect to future amendments to
any such Site Specific Development Plan) through and including October 20, 2039. Without
limitation of the foregoing, during the Vesting Term:
(a) Individually and collectively, the Development Plan (and each constituent
element thereof) together with any final subdivision plat approved by the Town as a Site
Specific Development Plan subsequent to the Original Effective Date, and any
amendments to any of the foregoing Approved SSDPs approved subsequent to the
Effective Date, constitute an Approved SSDP.
(b) Master Developer, EMD, the Developer Affiliates and other Landowners
shall have Vested Property Rights to the full extent of the Vested Property Rights Statute
to undertake and complete development and use of the Property and the Project as
provided in the Development Plan and related Approved SSDPs, specifically including
the Financing Plan established by Article 6, which rights shall be and remain vested for
the duration of the Vesting Term.
(c) Notwithstanding any additional or contrary provision of the Municipal
Code (as in effect on the Effective Date or as amended from time to time), the Vesting
Term with respect to Approved SSDPs (or amendments thereto) shall not expire, be
deemed forfeited, or otherwise limited or impaired prior to October 21, 2039.
Approval of the Development Plan (and each constituent element
thereof)
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(d) Approval of this Development Plan constitutes a vested property
right pursuant to Article 68 of Title 24, C.R.S., as amended, and Title 7,
Chapter 16, of the Avon Municipal Code as amended.
2.4 Property Rights Vested. Without limitingThe rights indentified below shall
constitute the scope of any Landowner’svested property rights pursuant tounder the Development
Plan (the “Vested Property Rights Statute, the rights identified below (collectively, the “Vested
Property Rights”) are expressly granted and approved by Town Council:”):
(a) The rights set forth in Section 2.3.
(b)(a) The right to develop, plan and engage in land uses within the
Property and the Project in the manner and to the extent set forth in and
pursuant to the Development Plan and any other Approved SSDPs.
(c)(b) The right to develop, plan and engage in land uses within the
Property and the Project in accordance with the densities, physical development
standards and other physical parameters set forth in the PUD Guide and any
other Approved SSDPs.
(d)(c) The right to develop the Project in the order, at the rate and at the
time as the applicable Developer determines appropriate given market
conditions and other factors, subject to the terms and conditions of the
Development Plan and any other Approved SSDPs.
(e)(d) The right to develop and complete the development of the
Project including, without limitation, the right: (i) to receive all Town approvals
necessary for the development of the Project which comply with applicable
standards and criteria for review; (ii) the right to Town approvals with
conditions, standards and dedications which are no more onerous than those
imposed by the Town upon other developers in the Town on a uniform, non-
discriminatory and consistent basis, and subject only to the exactions and
requirements set forth in the Development Plan and any other Approved SSDPs;
and (iii) that such conditions, standards and dedications shall not directly or
indirectly have the effect of materially and adversely altering, impairing,
preventing, diminishing, imposing a moratorium on development, delaying or
otherwise adversely affecting any of Master Developer’s, EMD’s, Developer
Affiliates’ or any other Landowner’s rights set forth in the Development Plan or
any other approved SSDPs.
(f) The right to prevent (by mandamus, mandatory or prohibitory injunction
or other form of equitable remedy) the application to the Property or the Project of any
Town or citizen initiated zoning, land use or other legal or administrative action that
would directly or indirectly have the effect of adversely altering, impairing, preventing,
diminishing, imposing a moratorium on development, delaying or otherwise adversely
affecting any of Master Developer’s, EMD’s, Developer Affiliates’ or any other
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Landowner’s rights set forth in this Development Agreement, the other constituent
elements of the Development Plan and/or any other Approved SSDPs.
(g)(e) For the avoidance of doubt and notwithstanding any contrary
provision of the Municipal Code, the scope of Vested Property Rights
established by this Development Plan specifically includes the right that all
amendments to Approved SSDPs approved by the Town shall be and remain
vested through and including October 20, 2039, and the right to retain and enjoy
the remaining period of the Vesting Term for any amendment to the
Development PlanAgreement or any other Approved SSDP. the PUD Guide.
Accordingly, Town Council shall not require as a condition of approval of any
future amendment to this Development Agreement, the PUD Guide, or the
PUD Master Plan or any other Approved SSDP on, nor shall Town Council
make any such approval subject to the Applicant’s, Landowner ’s, EMD’s or
Master Developer’s consent to, a Guide any reduction of the then-remaining
duration of the Vesting Term.
2.5 No Obligation to Develop.
(a) Master Developer; Other Landowners. Neither Master
Developer, EMD nor any Landowner shall have any obligation arising under this Development
Agreement to develop all or any portion of the Project, nor shall Master Developer, EMD or any
Landowner have any liability to the Town or any other party arising under this Development
Agreement for not developing all or any part of the Project. The Parties contemplate that the
Project will be developed in phases as generally driven by market conditions as they exist from
time to time. Neither Master Developer, EMD nor any Landowner shall have any obligation
arising under this Development Agreement to develop all or any portion of any such phase,
notwithstanding the development or non-development of any other phase, and neither Master
Developer, EMD nor any Landowner shall have any liability to the Town or any other party
arising under this Development Agreement for not developing all or any portion of any such
phase of the Project.
(b) Districts. The Districts’ Service Plans establish the scope of the
Districts’ authorized activities and shall not be construed to constitute an obligation of the
Districts to cause the development of any particular Public Improvements, or to provide any
particular services or to perform any other function for which the Districts have authorization,
nor shall such Service Plans be construed to create any obligation of Master Developer, EMD or
any Landowner to provide any Public Improvements, any services or to otherwise pay any
monies or perform any actions on behalf of or for the benefit of the Districts. No District shall
have any obligation arising under this Development Agreement to develop all or any portion of
the Public Improvements, nor shall any District have any liability to the Town or any other party
arising under this Development Agreement for not developing all or any part of the Public
Improvements. The Parties contemplate that the Project will be developed in phases as generally
driven by market conditions as they exist from time to time. No District shall have any
obligation arising under this Development Agreement to develop all or any portion of the Public
Improvements pertinent to any such phase, notwithstanding the development or
non-development of any Public Improvements for any other phase, and no District shall have any
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liability to the Town or any other party arising under this Development Agreement for not
developing all or any portion of the Public Improvements pertinent to any such phase of the
Project.4
(c) Construction and Interpretation. For purposes of this Section 2.5
references to Master Developer, EMD, Landowners and the Districts shall be construed to
include their respective employees, agents, members, officers, directors, shareholders,
consultants, advisors, successors, assigns and similar individuals or entities.
2.6 Compliance with General Regulations.
(a) Generally. Except as otherwise provided in the Development
Plan, the establishment of Vested Property Rights under this Development Agreement shall not
preclude the application on a uniform and non-discriminatory basis of Town ordinances and
regulations of general applicability (including, but not limited to, building, fire, plumbing,
electrical and mechanical codes, the Municipal Code, and other Town rules and regulations) or
the application of state or federal regulations, as all of such regulations existed on the Effective
Date or may be enacted or amended after the Effective Date; provided, however, that in
construing the effect of the foregoing together with the other provisions of this Article 2 Town
ordinance and regulations newly enacted or amended after the Original Effective Date shall not
be applied within the Property without Master Developer’s and the applicable Landowner’s prior
written consent to the extent such application would directly or indirectly have the effect of
materially and adversely altering, impairing, preventing, diminishing, imposing a moratorium on
development, delaying or otherwise adversely affecting any Landowner’s Vested Property
Rights. No Landowner shall be deemed to have waived its right to oppose the enactment or
amendment of any such ordinances and regulations.
(b) Interpretation and Priority.5 The Development Plan is intended
to address and sets forth all potential development standards, development exactions, and impact
fees and similar matters applicable within the Project. Accordingly, in interpreting the intended
effect of the foregoing Section 2.6(a), that interpretation the application of the Municipal Code
shall prevailbe presumed to not apply to the Project with regard to any development standard,
development exaction, impact fee or other matter which: (i) gives the broadest reasonable effect
to the terms and conditions of is expressly set forth in the Development Plan, and conversely, the
authority of the Town to enact and each Approved SSDP,apply regulations of general
applicability shall be presumed valid and (ii) gives the narrowest reasonable effect to any
provision of the Municipal Code that explicitly or implicitly could be construed to conflict with
or limitpresumed to not materially and adversely affect the Vested Property Rights and other
development rights established bywith regard to any matter which is not expressly set forth in the
Development Plan or any Approved SSDP.
4 I have deleted because this provision is not in the Original Agreement or in the STS.
5 This language is balanced and consistent with the interpretation I have previously expressed. The alternative is to
keep the existing language with regard to Vested Property Rights and only amend the term to incorporate the 6 year
extension.
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ARTICLE 3
PUBLIC IMPROVEMENTS; DEVELOPMENT STANDARDS; EXACTIONS
3.1 Permitted Uses/Design Standards. The permitted uses of the Property, the density
and intensity of use, the maximum height, bulk and size of proposed buildings, design standards,
road profiles and sections, provisions for reservation or dedication of land for public purposes,
the general location of roads and trails, the ability of Master Developer to relocate roads, trails
and improvements, and other terms and conditions of development applicable to the Property and
the Project shall be those set forth in the PUD Guide and other constituent elements of the
Development Plan.
3.2 Design Review. As contemplated by the Original Agreement and as more
particularly described in the PUD Guide, the Design Review Board has been established, the
Design Covenant has been Recorded and the Design Review Guidelines have been promulgated.
The Design Review Board shall refer to the Town’s Planning and Zoning Commission, for
comment only and not for approval or disapproval, all development proposals submitted to the
Design Review Board for portions of the Property located south of Interstate 70 and all portions
of the Property located north of Interstate 70 other than Planning Areas K and RMF-1 (with
respect to which the Design Review Board shall have no obligation to refer to the Town’s
Planning and Zoning Commission). At Master Developer’s option, one or morea separate design
review board(s) may be established with respect to such Planning Areas RMF-1 and K. Such
design review board(s) shall not be required to include any Town official as a member.
3.3 Allocation of Public Improvement Obligations. Except as otherwise expressly set
forth in this Development Agreement, the timing of the design, construction and financing of the
Public Improvements, as well as the designation of the specific entity responsible for such
design, construction and financing, will be addressed in the applicable Public Improvement
Agreement(s) as development of the Project takes place in conjunction with the processing of the
applicable Development Application (which may or may not be a subdivision application). The
Public Improvement obligations described in this Development Agreement are intended to be
allocated among, as applicable, the Districts, Master Developer, a Developer and/or an Applicant
based on the relationship between the particular Public Improvement(s),, the Site owned by the
particular Developer and/or Applicant, and the nature of the development occurring on the Site.
This Development Agreement does not specifically allocate such Public Improvement
obligations, it being the Parties’ intent that the allocation will be set forth in a Public
Improvement Agreement executed in connection with the processing and approval of the
applicable Development Application. Public Improvements for which a District does not
undertake to finance the design, construction, maintenance and operation shall be undertaken by
the applicable Developer and/or Applicant. All such Public Improvements, whether undertaken
by a District or undertaken by a Developer and/or Applicant, shall be undertaken and provided in
accordance with the terms and conditions of the applicable Public Improvement Agreement
executed in connection with approval of the pertinent Development Application.
(a) Role of Districts. Subject to the availability of funds therefor,
District board of directors authorization, the terms and conditions of this Development
Agreement, the Districts’ respective Service Plans and state law, and in consideration of the
Town’s performance of its obligations under this Development Agreement (specifically including
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but not limited to the Financing Plan), the Districts may from time to time (without obligation to
do so arising under this Development Agreement) undertake to finance the design, construction,
maintenance and operation, as applicable, of the Public Improvements as and when reasonably
needed to support development of the Project. References to Master Developer, EMD,
Developer Affiliates, Developers, Landowners or Applicants in the context of the Public
Improvement obligations addressed in this Development Agreement will be construed to mean
and include by reference the applicable Districts to the extent particular Districts have
undertaken such obligations pursuant to the terms of a Public Improvement Agreement as
contemplated in this Development Agreement. 6This Development Agreement will not be
construed as creating an implied obligation for the Districts to finance or construct any particular
Public Improvements prior to such District’s execution of a Public Improvement Agreement
pursuant to which the applicable District undertakes specific obligations regarding specific
Public Improvements. Any obligation undertaken by a District pursuant to this Section 3.3 shall
not be construed to constitute a multiple fiscal year obligation of such District, but shall be
subject to annual budget and appropriation unless otherwise agreed to in writing by such District.
(b) Assurance of Completion. The Applicant for any Development
Application submitted after the Effective Date will provide an improvement guarantee assuring
completion of the Public Improvements as required by the Municipal Code as then in effect (to
the extent not inconsistent with an express provision of this Development Agreement or the PUD
Guide), and as more particularly described in the applicable Public Improvement Agreement to
be executed in connection with future Development Application approvals. If the Public
Improvements covered by any Public Improvement Agreement are being constructed by or for a
District, and notwithstanding any provision of the Municipal Code to the contrary, the Town will
accept for the assurance of completion under such Public Improvement Agreement such
District’s escrow of funds on hand, budgeted and appropriated specifically for such purposes, in
an amount determined by the Development Code, and placed into an escrow account maintained
by a separate financial institution entity acceptable to the Town in accordance with an escrow
agreement acceptable to the Town.
(c) Warranty Period. All Public Improvements Dedicated to and
Accepted by the Town shall be subject to a two (2) year Preliminary Acceptance warranty period
(or any shorter warranty period that may be set forth in the Municipal Code as in effect from
time to time), and otherwise shall be subject to the procedures for Town Acceptance as set forth
in the Municipal Code from time to time to the extent not in conflict with the terms and
conditions set forth in the definitions of Preliminary Acceptance, Final Acceptance or
Acceptance contained in Exhibit G.
3.4 Public Roads and Access.7
(a) General. Access, ingress and egress to, from and within the
Project shall be provided as generally described in the Development Plan. As generally
described in Recital K, prior to the Execution Date TCMD has fully performed all road
6 I don’t understand this reference. I need an example or citation in document as to where or how this is relevant.
7 We need to have a policy discussion about road dedication. I believe the Original Agreement and the Town’s code
contemplates simply dedicating public road right-of-ways to the Town, which should occur via dedication on a
subdivision plat.
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construction obligations specifically required pursuant to the Original Agreement. The PUD
Master Plan graphically depicts the alignments of existing permanent roads, the alignments of
existing temporary roads, and potential conceptual alignments of some future roads. Subject to
the availability of District Revenues not pledged or otherwise encumbered by the obligations of
the Districts as set forth herein or under any debt instruments contemplated hereinUtilizing any
legally available District Revenues, oOne or more of the Districts may (as contemplated by and
subject to the conditions described in Section 3.3(a)) undertake to finance and/or construct the
public roads within the Project. All public roads, whether constructed by or on behalf of a
District or a Developer, shall be constructed in accordance with the standards set forth in the
PUD Guide and, pursuant to clause (b) below, shall be Dedicated to the Town in accordance with
sub-section (b) below., whereupon the Town shall Accept such public roads in their then current
condition. Nothing set forth in the preceding sentence shall prohibit or limit a Landowner’s right
to construct and maintain private roads, or to construct and Dedicate public roads to the Town or
to a District (subject to the availability of sufficient District Revenues to maintain such public
roads)..
(b) Dedication; Acceptance and Maintenance of Public Roads and
Rights-of-Way. Subject to the specific terms and conditions set forth in
Article 4 and Error! Reference source not found.8:
(i) Existing Public Roads. Contemporaneously with the Effective
Date, TCMD conveyed to the Town all of TCMD’s right, title and interest in and to the
existing public road tracts (Swift Gulch Road, Post Boulevard, Fawcett Road and Yoder
Avenue), together with the road improvements, streetscape improvements, landscape
improvements and drainage improvements located within such rights-of-way. The Town
granted Final Acceptance of all such roadways and related improvements for
maintenance without reservation or condition, whether related to warranty periods or
otherwise, and released all warranty collateral related thereto. [Note: Need to track this
and assure it occurs.]
(ii) Main Street/East Beaver Creek Boulevard. The current temporary
alignment and road surface of East Beaver Creek Boulevard within the Project
(redesignated in the PUD Guide as Main Street) is located within the easement
established by the Easements with Covenants and Restrictions Affecting Land, dated
April 24, 2002, and Recorded May 8, 2002, at Reception No. 795009, and shall not be
Dedicated to the Town until such time as each pertinent phase of the final alignment
thereof is completed as more specifically set forth in the PUD Guide. Dedication of each
phase of the permanent alignment shall be accomplished pursuant to clause (iii) below.
During the period prior to Dedication of each phase of the permanent alignment of East
Beaver Creek Boulevard/Main Street, the Town is and shall remain responsible for snow
removal and , road maintenance, streetscape maintenance and landscape maintenance
within the current East Beaver Creek Boulevard easement; provided, however, asphalt
overlays shall not be required prior to Dedication and, as set forth in Section 4.2(d), the
Town shall undertake responsibility for asphalt overlays only after Dedication. From and
after Dedication of each phase of the permanent alignment of East Beaver Creek
8 The specific conditions in Art 4 and 6 should be cited so we understand what this reference means.
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Boulevard/Main Street, the terms and conditions of clause (iii) below shall apply to such
Dedicated phase.
(iii) Future Public Roads and Right-of-Ways. Future public road
rights-of-way and improvements located therein (including future phases of the
permanent alignment of East Beaver Creek Boulevard/Main Street) shall be Dedicated to
the Town by in accordance with the requirements set forth in the Development Code for
the dedication of public road right-of-ways.special warranty deed in the form attached as
Exhibit B of this Development Agreement upon generally the same terms and conditions
as the conveyances referenced in clause (i) above. Concurrently with the Dedication, the
Town shall grant Preliminary Acceptance of the pertinent property interests and Public
Improvements. Upon expiration of the warranty period and resolution of any warranty
matters that might arise during the Preliminary Acceptance period, the Town shall grant
Final Acceptance.
(iv) Sidewalk Snow Removal. The Town’s obligation to remove snow
from sidewalks shall be limited to Post Boulevard, East Beaver Creek Boulevard/Main
Street, Swift Gulch Road, Fawcett Road and Yoder Avenue. Maintenance of other
sidewalks along public roads shall be in accordance with the Municipal Code.
(c) Phased Road Improvements. All roads, including East Beaver
Creek Boulevard/Main Street and Chapel Place, may be developed in phases in
accordance with the road standards set forth in Exhibit F of the PUD Guide.
Without limiting the generality of the foregoing, construction of the final
alignment of East Beaver Creek Boulevard/Main Street shall consist of
converting the existing alignment and road surface from temporary to
permanent by the phased construction thereof in accordance with the road
standards set forth in Exhibit F of the PUD Guide. [Town should provide
scope of design level desired here. To extent not already reflected in
Exhibit F of PUD, that would be the place for it.]
3.5 Municipal Water. Water Service. If the Town provides water service to the
Project, the Town shall charge water tap fees and usage charges to users within the Property on a
uniform, non-discriminatory basis with other users within the Town. The Town shall remit
monthly to the Districts all water tap fees collected by the Town with respect to providing water
service to any user of the Property. The Town may direct that all such water tap fees be paid
directly to the Districts.9Pursuant to and as more particularly described in the Tank Agreement:
(i), TCMD has conveyed to the Town, and the Town has thereafter conveyed certain water rights
to the Authority, those water rights decreed in Case No. 97CW306; and (ii) the Authority is
legally obligated to provide that number of2,800 single family equivalents (SFE) of water service
to the Project which is equivalent to the water rights decreed in Case No. 97CW306 (as of the
Effective Date, estimated to be approximately 2,800 SFE, more or less).. Additionally, the Tank
Agreement provides that the Town has certain obligations with respect to providing municipal
9 This is the language in the Original Agreement. I believe water service issues, water rights dedication and matters
related to the water storage tank are addressed elsewhere.
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water service to the Project under circumstances where the Authority fails to provide such
services. Accordingly:
(a) The Town shall not withhold issuance of building permits, certificates of
occupancy or processing of Applications on the basis of water service issues; provided, however,
that allocation of the available water service within the Project as development occurs shall be
tracked in the manner set forth in the PUD Guide. Issuance of building permits, issuance of
certificates of occupancy and processing of Applications for development within the Project after
full allocation of the SFE corresponding to the water rights decreed in Case No. 97CW3062,800
SFE shall be subject to the terms and conditions set forth in the PUD Guide.
(b) If TCMD, any Applicant or any other party undertakes to construct one or more
water storage tanks at an elevation higher than the water storage tank to be constructed pursuant
to the Tank Agreement, and notwithstanding any contrary provision of the Municipal Code, the
Town shall not require the Applicant to seek a 1041 permit and shall not require the tank site to
be a legally subdivided parcel (provided the owner of the water storage tank has an easement for
the operation and maintenance thereof). If construction of any such water storage tank is
undertaken independent and in advance of development of the portion of the property to be
served by the water storage tank, the Town shall not require execution of a Public Improvement
Agreement or monetary collateral (cash escrow, letter of credit or similar mechanism) for
assurance of completion of the water storage tank. If construction of any such water storage tank
is undertaken as a condition of approval of a Development Application for development of a Site
with respect to which service will be required to be provided from the to be constructed water
storage tank, the Town may require construction of the water storage tank and assurance of
completion thereof pursuant to the terms and conditions of a Public Improvement Agreement as
otherwise provided in this Development Agreement. The Town shall have no obligation to issue
a temporary or final certificate of occupancy for a habitable structure within any Site with
respect to which water service cannot be provided without such water storage tank becoming
operational until such time as the pertinent water storage tank becomes operational. The
foregoing shall not preclude the Town from issuing a building permit prior to completion of such
a water storage tank if the Town determines such action to be consistent with public health,
safety and welfare under circumstances then pertaining (for example, the water storage tank is
reasonably anticipated to be operational prior to completion of the improvements for which the
building permit is issued and the issuance of the building permit is conditioned on the water
storage tank becoming operational prior to issuance of a temporary or permanent certificate of
occupancy).
(c) If the Town undertakes to provide water service to the Project, the Town shall
charge water tap fees and usage charges to users within the Property on a uniform,
non-discriminatory basis with other users within the Town.
(d) The Town shall remit monthly to TCMD 100% of all water tap fees collected by
the Town with respect to providing water service to any user of the Property. The Town may
direct that all such water tap fees be paid directly to TCMD.
(e)3.5 The Town expressly disclaims any right, title or interest in or to any tap fees
payable in connection with development within the Property, and acknowledges that all such tap
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fees constitute District Revenues and are the property of, and shall be due and payable to,
TCMD.
3.6 Sanitary Sewer. The Sanitation District, rather than the Town, provides sanitary
sewer service to the Project. The topography of Planning Area K, the size of the lots contained
in Planning Area K, the relative remoteness of Planning Area K from the rest of the Project and
from the facilities of the Sanitation District, together with the comparative ease of servicing
Planning Area K with individual septic tank and leach field systems, render all or designated
areas within Planning Area K appropriate for exclusion from the Sanitation District.
Accordingly, the Town will not oppose the proposed exclusion from the Sanitation District of all
or any part of Planning Area K, whether initiated by Master Developer or the Developer of such
portion of Planning Area K.
3.7 Drainage Plans; Stormwater Management. Drainage plans and stormwater
management plans required in connection with the processing of any Application for
development within the Property shall be in accordance with the terms and conditions of the
PUD Guide.
3.8 Land and Water Rights Dedications. As generally described in Recital K, prior to
the Execution Date the pertinent Landowner fully performed certain land dedicationDedication
obligations specifically required to be performed pursuant to the Original Agreement, and all
such dedicationsDedication shall be deemed to have been granted Final Acceptance. This
Section 3.8 sets forth the sole unperformed and/or additional obligations of Master Developer,
EMD, the Developer Affiliates, or any pertinent Landowner to Dedicate lands and to Dedicate
water rights to serve the Project. Notwithstanding any current or future provision of the
Municipal Code to the contrary, the Town shall not impose any land Dedication requirement,
impact fee requirement or development exaction of any sort prior to the expiration of the Vesting
Term , except for the following, the performance of which together with prior land dedications
and related exactions fully satisfies and extinguishes any dedication, impact fee and/or
development exaction obligations pertaining to or in connection with development of the Project:
(a) School Site Dedication. The Original Agreement set forth certain
requirements regarding the Dedication of land or cash in lieu thereof to address
the impact of the Project on the school system. Pursuant to the Settlement Term
Sheet, the school site provision of the Original Agreement has been modified as
set forth in this Section 3.8(a) and, as of the Effective Date, Ordinance No. 06-
17 and all conditions and restrictions set forth therein are rendered legally
inoperative, void and of no further force or effect.
(i) Parcels to be Conveyed. The following conveyances (collectively,
the “School Site Dedication”) shall constitute full satisfaction of all requirements under
the Municipal Code and other current or future Town regulations with respect to
mitigation of the Project’s impact on the school system:
(A) Concurrently with the Effective Date, TC-RP conveyed to
the Town the approximately [4.0] acre Site designated on the PUD Master Plan as
Planning Area E. Neither TC-RP, Master Developer nor TCMD shall have any
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obligation with respect to provision of any Public Improvements for Planning
Area E. Accordingly, the Town hereby grants Final Acceptance with respect to
Dedication of Planning Area E. [incorporate reference plat designation]
(B) EMD (or the Landowner at the pertinent time), shall
Dedicate to the Town an approximately [3.3] acre Site within Planning Area I
upon the earlier to occur of: (i) Recording of the initial final subdivision plat
within Planning Area I; or (ii) issuance of a building permit for a habitable
structure within Planning Area I. The conveyance shall be in accordance with the
requirements of the Development Code including but not limited to the
requirements of subdivision platting. Neither EMD (or the then-Landowner),
TCLLC, TCMD, andMaster Developer Affiliate, or any other Landowner (other
than the Town or an educational entity to which the Town has conveyed such
Site)nor TCMD shall have any obligation with respect to provision of any Public
Improvements for the approximately [3.3] acre Site within Planning Area I.
Accordingly, the Town shall grant Final Acceptance with respect to Dedication of
the Planning Area I Site concurrently with Recording of the conveyance
documents and no Preliminary Acceptance or warranty period requirement shall
apply.
(ii) Use Restriction. Notwithstanding anything to the contrary set forth
in the Municipal Code or any other statute, ordinance, regulation or the like, use of the
School Site Dedication parcels shall be restricted to state licensedauthorized10 education
facilities serving grades K through 12 (or any portion of such grades); provided, however,
that prior to construction of school facilities permitted hereunder, the Town may use the
School Site Dedication parcels for outdoor recreation, parks or open space purposes and
for no other use or purpose (including other municipal purposes, snow storage, equipment
storage or similar purposes) without the Town having first obtained Master Developer’s
or EMD’s written consent, as applicable, which consent may be given or withheld in
Master Developer’s or EMD’s sole discretion. Each special warranty deed conveying a
School Site Dedication parcel shall incorporate the foregoing use restriction, which use
restriction shall be independently enforceable as a deed restriction and not merged into or
construed to preclude enforcement of the use restriction imposed by this
Section 3.8(a)(ii); provided, however, that the scope of the use restriction as stated in the
applicable deed shall control over any broader or narrower scope set forth herein.
(iii) Form of Conveyance. Conveyance of the Planning Area I School
Site Dedication parcel shall be by special warranty deed in the form attached as Exhibit B
to this Development Agreement, shall be without any reversionary clause, subject to all
matters of Record other than monetary liens, and shall contain an express use restriction
consistent with the foregoing Section 3.8(a)(ii). Conveyance of the Planning Area E
School Site Dedication parcel was effected by Recording of a special warranty deed in
the form attached as Exhibit B to this Development Agreement, without any reversionary
clause, subject to all matters of Record other than monetary liens, and containing an
express use restriction consistent with the foregoing Section 3.8(a)(ii).
10 Was this the term that worked for both school district and charter schools?
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(iv) Additional Conditions.
(A) Any use undertaken and any improvements constructed or
installed within the School Site Dedication parcels shall comply with the terms of
the Development Plan and shall be subject to review and approval by the Design
Review Board. Prior to development of the School Site Dedication parcels for
school purposes, the Town shall be responsible for installing and maintaining all
improvements to be made within the School Site Dedication parcels and for
controlling all noxious weeds within the School Site Dedication parcels.
(B) If Eagle County School District demonstrates a need for a
school site within the Project, the Town, Master Developer and EMD shall use
best efforts to combine the park land dedications contemplated in Section 3.8(d)
with the Planning Area I School Site Dedication parcel to create a consolidated
site of sufficient size to meet the reasonable needs of the Eagle County School
District. The preceding sentence shall not be construed to have the effect of:
(i) creating a legal right of Eagle County School District to obtain a school site
within Planning Area I or any other area of the Property; (ii) creating any legal
obligation of the Town, EMD, Master Developer or any Landowner or Applicant
to provide a school site on Planning Area I or any other area of the Property to the
Eagle County School District; or (iii) creating a legal obligation of the Town,
EMD, Master Developer, any Landowner or any Applicant to combine the park
land Dedication with the Planning Area I School Site Dedication parcel. Eagle
County School District shall not be construed to be, and the Parties expressly
intend that Eagle County School District shall not be, an Intended Beneficiary.
(C) The Town may lease or convey such School Site
Dedication parcels to educational districts or organizations upon such terms as the
Town determines in its sole discretion provided that: (i) such lease or conveyance
shall be for nominal consideration; and (ii) such lease or conveyance shall be
expressly subject to the use restriction established pursuant to Section 3.8(a)(ii)
and the applicable deed restriction as contemplated by Section 3.8(a)(iii).
(D) Pursuant to the PUD Guide and prior to construction of a
school facility on such parcel, the Town shall administratively process and
approve subdivision re-platting of either or both the Planning Area E School Site
Dedication parcel or the Planning Area I School Site Dedication parcel to adjust
the boundaries of such parcels in connection with final development of an
adjacent Planning Area or Site. The Town shall not unreasonably deny, condition
or delay final action with respect to a Development Application to
administratively re-plat the School Site Dedication parcels as provided herein.
(b) Dedication of Planning Area B. Concurrently with the Effective
Date, TC-RP has conveyed to the Town [identify Planning Area B by
reference to recorded plat]. Neither TC-RP, Master Developer nor TCMD
shall have any obligation with respect to provision of any Public Improvements
for Planning Area B. Accordingly, the Town hereby grants Final Acceptance
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with respect to Dedication of Planning Area B. Any construction of buildings
or facilities or landscaping improvements on Planning Area B, or any Public
Improvements required in connection with the Town’s development of Planning
Area B, shall be subject to prior approval by the Design Review Board. The
Town may create a plan for the development and use of Planning Area B, which
may be adopted by the Design Review Board, and which shall then serve as a
guide for review of uses and development of Planning Area B by the Design
Review Board. Any use or plan for use of Planning Area B shall allow and
incorporate the ability to construct for storage and/or augmentation purposes a
water feature which can provide at least 2 acre feet of water storage (which shall
not exceed a total surface area of .6 acres, including inflow and outflow on
Planning Area B). Notwithstanding the preceding sentence, the Town shall have
the right to maintain and operate as public open space all or a portion of
Planning Area B which is not yet developed in accordance with this Section.
Pursuant to the PUD Guide, the Town shall administratively process and
approve subdivision re-platting of Planning Area B to adjust the boundary of
Planning Area B in connection with final development of an adjacent Planning
Area. The Town shall not unreasonably deny, condition or delay final action
with respect to a Development Application to administratively re-plat Planning
Areas B as provided herein. Town shall may deny any proposed adjustment or
re-plat of Planning Area B which would reduce the acreage or Planning Area B,
reduce the usable acreage of Planning Area B, reduce access to Planning Area
B, or increase the cost of development of Planning Area B. The Town may
consider other criteria for review as set forth in the Development Plan and the
Development Code for subdivisions. Upon development of Planning Area B,
Town shall have no further obligation to consider requests to adjust or re-plat
Planning Area B.11 Until such time as Planning Area B is developed or
improvements are constructed thereupon, the Town, the Master Developer and
TCMD shall have the right to use such property for snow storage in accordance
with the terms of the Revocable License Agreement.12
(c) Planning Areas OS-5 and OS-6. EMD (or the Landowner at the
pertinent time) shall convey Planning Areas OS-5 and OS-6 to the Town
concurrently with Recording of the initial final subdivision plat for Planning
Area I. Neither EMD (or the then-Landowner), Master Developer nor TCMD
shall have any obligation with respect to provision of any Public Improvements
for Planning Areas OS-5 and OS-6. Accordingly, the Town shall grant Final
Acceptance with respect to Dedication of Planning Areas OS-5 and OS-6
concurrently with Recording of the conveyance documents and no Preliminary
Acceptance or warranty period requirement shall apply. Such conveyance shall
be by special warranty deed in the form attached as Exhibit B to this
Development Agreement, and shall reserve to grantor (or its assigns, including a
District) the right to construct a vehicle/pedestrian bridge crossing across
11 I believe this fairly represents what the parties have discussed and expect with regard to administrative
adjustments to Planning Area B.
12 Snow storage by others on PA-B is not included in the STS.
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Planning Areas OS-5 and/or OS-6 including the ability to construct and
maintain bridge abutments and appurtenant roadways. Planning Areas OS-5
and OS-6 shall be conveyed without any reversionary clause, subject to all
matters of Record other than monetary liens. The deed shall contain an express
use restriction limiting use of the sites to open space and no other purposes
(except those uses reserved to grantor as provided above). The Town shall be
responsible for installing and maintaining all improvements to be made within
the open space parcels (other than those improvements grantor may cause to be
installed per the reservation described above), and for controlling all noxious
weeds within the open space parcels. Any improvements to be located within
Planning Areas OS-5 and/or OS-6 shall be subject to Design Review Board
review and approval.
(d) Park Site Within Planning Area I, J and/or K. As determined by
Master Developer in its sole discretion, Master Developer shall cause the
pertinent Developer Affiliate to Dedicate, or EMD (or the Landowner at the
pertinent time) shall Dedicate, 5.8 acres of park land to be located within
Planning Area I, J and/or K. Neither the then-Landowner, Master Developer
nor TCMD shall have any obligation with respect to provision of any Public
Improvements for such park land acreage. Accordingly, the Town shall grant
Final Acceptance with respect to Dedication of the park land acreage
concurrently with Recording of the conveyance documents and no Preliminary
Acceptance or warranty period requirement shall apply. The foregoing
obligation may be accomplished by one or more conveyances totaling not less
than 5.8 acres in the aggregate provided that such conveyances comply with the
applicable criteria set forth in the PUD Guide. Such conveyance(s) shall be by
special warranty deed in the form attached as Exhibit B to this Development
Agreement, without any reversionary clause, subject to all matters of Record
other than monetary liens. The deed(s) shall contain an express use restriction
limiting use of the site(s) to, as applicable to the particular site, public park, trail
heads, trail connections, dog park, or natural park (i.e., wetland/natural resource
protection area, hillside slopes, view planes, streambed/buffer and similar
natural condition preservation areas) and no other purposes. The Town shall be
responsible for installing and maintaining all improvements to be made within
the park site(s), and for controlling all noxious weeds within the park site(s).
(e) Water Rights Dedication for Dedicated Lands. [My notes
indicate discussion, but not resolution of this point. I suggest that this is the appropriate
location within the document to address the issue. My assumption is that the water
conveyed from TCMD to Avon to UERWA pursuant to the Tank Agreement is sufficient to
support the 2,800 SFE along with normal development requirements associated with those
SFE, including irrigation of required public dedications and amenities, but this should be
confirmed and this provision should clarify what if any further obligations exist for TCMD
to convey water to the Town or UERWA to cover the ROW and other public land
irrigation.]
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August 9, 2012
24
3.9 Exactions, Fees and Payments. As generally described in Recital K, prior to the
Execution Date development exactions, fees and payments required to be performed and/or made
pursuant to the Original Agreement were fully or partially performed and, to the extent partially
performed are hereby waived and extinguished pursuant to the Settlement Term Sheet and this
Development Agreement. This Section 3.9 sets forth the sole and exclusive obligations and
requirements with respect to exactions, impact fees and payments required in connection with
development of the Project during the Vesting Term. Accordingly, and notwithstanding any
current or future provision of the Municipal Code, the Town shall not impose exactions or fees
upon development within the Property for impacts related to schools, fire protection, emergency
services, municipal facilities, public transit, municipal parks, or open space or any other
matters13 which are in addition to the exactions, fees and payments described in this
Development Agreement and/or the PUD Guide, or which have been previously paid or
performed under the Original Agreement (such exactions, fees and payments fully satisfying and
extinguishing any impact fee and/or development exaction obligations in connection with
development of the Project).
3.10 Other Generally Applicable Taxes, Assessments and Fees. All current and future
taxes, and all current and future assessments and fees (other than the exactions, development
impact fees and payments addressed by Section 3.9), imposed by the Town on a uniform and
non-discriminatory basis within the Town and not expressly addressed in this Development
Agreement or in the PUD Guide shall apply in the same manner and to the same extent within
the Property as within the rest of the Town.
3.11 Prioritized Capital Projects. The Parties have identified the subset of Public
Improvements set forth in Exhibit D (the “Prioritized Capital Projects”) as having particularly
high value in supporting and encouraging the types of development within the areas of the
Project that would produce relatively greater District Revenue and Municipal Services Revenue,
at relatively less Public Improvement cost, and at a relatively earlier point in the development
sequence. It is the Parties’ intent that, subject to market conditions and the terms and conditions
of this Development Agreement (including but not limited to Sections 2.5 and 3.3(a)), a
non-legally binding priority will be placed on supporting and encouraging investment in the
Prioritized Capital Projects in order to support and encourage development to occur within
Planning Areas A, C, D, F and J such that the Supplemental Bond capacity available pursuant to
the Financing Plan is utilized to encourage development that has a relatively greater probability
of producing relatively greater increases in District Revenue and Municipal Services Revenue.
ARTICLE 4
MUNICIPAL SERVICES; OBLIGATIONS OF TOWN AND AURA
4.1 Municipal Services. Except as otherwise expressly set forth in various provisions
of this Development Agreement (either narrowing or expanding the Town’s obligations), tThe
Town shall have the ongoing responsibility and obligation to provide all municipal services
(“Municipal Services”) to the Property and the Project in accordance with the Town’s general
obligation to provide municipal services in the Town of Avon. equivalent to those services
provided to any other area of the Town on a uniform and non-discriminatory basis, including,
13 This is not consistent with Section 3.9 which allows other fees to be imposed uniformly.
Heil Comments – Articles 1 through 4, V9 CARADA
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without limitation, snow removal, road maintenance, maintenance (including repair and
replacement) of streetscape improvements and landscaping within public road rights-of-way,
asphalt overlay of public roads, public transit, police services, building code enforcement and
other administrative services (collectively, the “Municipal Services”). Specifically with respect
to public transit, and for the avoidance of doubt, the Town provides public transit services as part
of the Municipal Services based on a variety of factors including demand, the Town’s transit
planning policies, funding availability and similar considerations and, accordingly, does not
provide public transit service within all areas of the Town or make a representation or
commitment regarding when and to what extent the Town might provide public transit service
within the Property. Accordingly, no Development Application shall be denied based on the
then-lack of transit services, and no approval of a Development Application shall be conditioned
upon the any party or entity other than the Town providing transit services. [Eric – My notes
indicate you were intending to provide some language, but I went ahead and took a shot.
Feel free to modify if needed.] The Town’s receipt of Municipal Services Revenues during the
Term as generally described in Section 6.5, together with the additional revenues described in
Section 6.15, is in consideration of and shall be conclusively deemed and construed to fully
offset the Town’s cost of performing its Municipal Services obligations pursuant to this
Development Agreement, such that no Party shall assert or claim that such revenues are either
inadequate or excessive, no Party shall assert or claim any right to increase in or reduction of
such revenues, nor shall the Town have any right to withhold, suspend or terminate the provision
of any of the Town’s Municipal Services obligations pursuant to this Development Agreement.
The Town’s obligation to provide Municipal Services, including but not limited to the
maintenance obligations set forth in Section 4.2(c), shall survive the Term.
4.2 Town Obligations. Without limiting or negating any Town obligation set forth in
another Article of this Development Agreement or narrowing by implication the Town’s
obligations pursuant to Section 4.1, the Town shall perform the following obligations:
(a) Tax Credit. As contemplated by the Original Agreement and
codified at Sections 3.08.035, 3.12.065 and 3.28.075 of the Municipal Code (as in effect on the
Effective Date), the Town has established the Tax Credit. During the Term, the Town shall not
take any action to modify, reduce, terminate, suspend or otherwise prevent the Tax Credit from
attaching to Taxable Transactions occurring within the Project, including but not limited to
enacting any amendment to Sections 3.08.035, 3.12.065 and/or 3.28.075, or to any other
provision of the Municipal Code, that would have such effect.
(b) Cooperation in Implementation of Add-On RSF. As more
particularly set forth in Section Error! Reference source not found., the Town
will cooperate with the PICs to effect the implementation of the Add-On RSF
with respect to existing and future retail businesses within the Project, including
but not limited to: (i) assisting in the coordination and implementation of
reporting forms; (ii) participating in meetings with representatives of such
retailers regarding the nature and purpose of the Add-On RSF; and (iii) such
other steps and actions as the PICs may request from time to time.
(c) Assumption of TCMD Maintenance Obligations. From and after
the Effective Date, the Town shall assume and be responsible for the
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performance of all of TCMD’s current and future maintenance, repair and
replacement existing maintenance obligations with respect to Public
Improvements that are transferred to the Town concurrently with this
Development Agreement on the Effective Date. (including but not limited to all
Dedicated and Accepted public road right-of-way landscaping, Nottingham
Dam, Nottingham-Puder Ditch, irrigation systems and water wells, the wet well
located within PA-F, tree replacements and, subject to Section 3.4(b)(iv)), snow
removal. [TCMD counsel has raised the issue of whether the Town needs a
license or easement to the wet well site. TCMD will convey any
improvements to the Town by bill of sale. If TCMD has a license or
easement, might that interest also be conveyed or assigned to the Town?
Need to discuss and determine how/where to address the issue.]
Notwithstanding the forgoing, Town shall not assume the following
maintenance obligations and TCMD shall retain the following maintenance
obligations to be funded by Allowed O&M or revenue sources which do not
include Credit PIF Revenues responsibility to cause the following obligations to
be performed utilizing District Revenues available to it for such purposes:
(i) Parking Structures. Maintenance of the existing Traer Creek Plaza
public parking structure located within Lot 2, Final Plat, The Village (at Avon) Filing 1,
Recorded on May 8, 2002, at Reception No. 795007 [describe by reference to Unit
established by Condo Plat] and, except to the extent TCMD and the Town otherwise
agree in writing, any additional public parking facilities or structures that TCMD or
another District may construct in the future.
(ii) Lot 2 Internal Landscaping. Any landscaping maintenance
obligation with respect to Lot 2, Final Plat, The Village (at Avon) Filing 1, Recorded on
May 8, 2002, at Reception No. 795007 to the extent arising from TCMD’s status as
owner of the Traer Creek Plaza public parking structure located therein [describe by
reference to Unit established by Condo Plat].
(iii) Tract E. Maintenance of the park and flag pole located within
Tract E, Final Plat, The Village (at Avon) Filing 1, Recorded on May 8, 2002, at
Reception No. 795007.
(d) Asphalt Overlays. Subject to the terms and conditions of the
Asphalt Overlay Agreement and Section Error! Reference source not found.,
the Town shall perform asphalt overlays for all Dedicated public roads located
in the Project subject to the following terms and conditions:
(i) Prior to Termination of Joint Funding. Until the shared funding
contributions terminate pursuant to Section Error! Reference source not found.:
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(A) The Town shall commence overlays on Dedicated roads
within the Project at such time as jointly determined necessary by the Town and,
TCMD and Master Developer.14
(B) As more particularly set forth in the Asphalt Overlay
Agreement (including but not limited to Section 5(b) thereof [Note: Need to
confirm cross reference in final version of overlay agreement] regarding
deemed consent under certain facts), TCMD, Master Developer and the Town
each must provide written approval prior to the release of any funds from the
Asphalt Overlay Account.
(C) The Town’s obligation to perform asphalt overlays shall be
limited to the amount accumulated within the Asphalt Overlay Account.
(D) The Town’s obligation to deposit funds into the Asphalt
Overlay Account shall be limited to the portion of the Municipal Services
Revenues the Add-On RSF Collection Agent deposits on behalf of the Town
pursuant to Section Error! Reference source not found., and the Town shall
have no obligation to contribute funds from any other source.
(ii) After Termination of Joint Funding. From and after the date upon
which the shared funding contributions terminate pursuant to Section Error! Reference
source not found.:
(A) The Town shall be solely responsible for all costs of asphalt
overlays for Dedicated public roads in the Project.
(B) The Town shall schedule and perform such asphalt overlays
in a manner materially consistent and commensurate with other public roads in
the Town having similar characteristics in terms of traffic volume, age of road
surface and similar factors.
(e) Easement for Access to Planning Area I. As of the Effective
Date, the Town is undertaking to acquire fee title to the Forest Service Village Parcel. Within
three (3) business days after acquiring Record title to the Forest Service Village Parcel, but in
any event prior to permitting the RecordingRecordation of a conservation easement or similar
instrument limiting potential development within the Forest Service Village Parcel or any other
conveyance by the Town of the Forest Service Village Parcel or any interest therein, the Town
shall execute and deliver the Relocatable Roadway Easement Agreement to EMD (or to the then-
Landowner of Planning Area I). The Relocatable Roadway Easement Agreement shall be
Recorded as a prior interest to any conservation easement or similar instrument, and any such
subsequent conveyance or grant by the Town shall be expressly subject to the Relocatable
Roadway Easement Agreement.15
14 STS refers to Avon and District determining when to commence overlays.
15 The Relocatable Roadway Easement Agreement is not in the STS.
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(f) Service PlansAmendment of Chapter 18 of Avon Municipal
Code. The Town hereby waives the applicability in its entirety of Chapter 18.01 of the
Municipal Code (as amended from time to time) to any of the Districts or to the Service Plans.
During the Term, Chapter 18.01 of the Municipal Code (as amended from time to time) shall not
apply to any District or any Service Plan and, notwithstanding any additional or conflicting
requirement in Chapter 18.01 of the Municipal Code (as amended from time to time), any
modification or amendment to one or more of the Service Plans shall be accomplished in
accordance with the terms of the applicable Service Plan and state statute. [This will be
harmonized with proposed ordinance.]The Town has adopted Ordinance No. [insert #] which
amends Chapter 18 of the Avon Municipal Code to state that provisions concerning material
modification do not apply to Traer Creek Metropolitan District. Town agrees to maintain such
amendment to Chapter 18 of the Avon Municipal Code during the Term of this Development
Agreement and Town further agrees that Town will not take any action which would repeal,
reinstate, alter or impose provisions in Chapter 18 or impose other regulations, which would
have the effect of establishing definitions, regulations or procedures concerning the
determination of material modification as applied to Traer Creek Metropolitan District that are
inconsistent with, more rigorous than or expand the scope of such determination as set forth
Colorado statutes as may be amended from time to time.
(g) Urban Renewal. If it is determined that Lot 1 will be included
within an urban renewal area, the Town shall, utilizing all authority legally available to it as a
home rule municipality under Colorado law, take such steps as may be necessary to assure
compliance with the conditions set forth in Section Error! Reference source not found..
4.3 AURA Obligations. If it is determined that Lot 1 will be included within an urban
renewal area, AURA shall take such steps as may be necessary to assure compliance with the
conditions set forth in Section 6.7 and the related obligations set forth in Section 6.16.16
16 Technically, AURA is not a party to the STS or Development Agreement.
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NEW AND/OR AMENDED DEFINED TERMS (to be added to Exhibit F):
##. Allowed O&M Expenses means the annual amount of District Revenues to be
remitted to and retained by TCMD to pay the ongoing operation, maintenance and administrative
costs of the Districts, which for years 2012 through 2016 shall be $1,000,000 and for each year
thereafter shall be $1,025,000 until such time that the Town has assumed sole responsibility for
all costs of asphalt overlays in accordance with Section 4.2(d)(ii),) less the amount of (i) the
Annual Debt Service Pledge Amount on the Tank Project Bonds and (ii) TCMD’s annual
contribution to the Asphalt Overlay Account..1 After the Town has assumed sole responsibility
for all costs of asphalt overlays, the amount of the Allowed O&M Expenses shall be $950,000
per year less the amount of the Annual Debt Service Pledge Amount on the Tank Project Bonds.
##. Bond Requirements means the interest payments on, and related reasonable and
necessary costs incurred in connection with, any bonds, including, without limitation, payments,
reimbursements, or replenishments with respect to interest, prepayment premiums, reserve funds;
surplus funds; sinking funds; costs of issuance; payments related to any credit enhancement
(including, without limitation, the Deferred Fees, if any); arbitrage payments, if any; fees and
expenses of any bond trustee, bond registrar, paying agent, authenticating agent, rebate analyst or
consultant, calculation agent, remarketing agent, provider of credit enhancement, and any other
amounts required or permitted to be paid by the documents governing the issuance of repayment
of and security for such bonds, including, without limitation, any bond indenture, interest rate
cap, or swap agreement or reimbursement agreement; provided however that Bond Requirements
on the Water Tank Bonds shall be limited as provided in the Water Tank Bonds Pledge
Agreement.2
Capital Project Costs means all amounts related to the design and construction of Capital
Projects, including but not limited to design, engineering, surveying, soils testing, geologic
hazard analysis, traffic studies, application and permit fees, legal, and Bond Requirements, but
not including interest payments on Supplemental Bonds, Additional Developer Advances or
Replacement Bonds. and other professional consultant fees related thereto.3
Credit PIF Cap has the meaning set forth in Section 6.2(b).
##. Debt Service Coverage Ratio is as defined in Exhibit G.
District Debt has the meaning set forth in Section 6.2(c).
1 Although Section 2.d of the STS includes the Annual Debt Service Pledge Amount in TCMD’s annual O&M
budget, we recommend carving out the Annual Debt Service Pledge Amount of “Allowed O&M Expenses” to make
a clearer definition of “District Debt” that comprises only those items that count against the Credit PIF Amount.
This avoids the need to qualify Allowed O&M Expenses in several sections of Article 6 where we are only referring
to the Annual Debt Service Pledge Amount.
2 It is our understanding that Town bond counsel is reviewing this definition.
3 Preparation of construction and professional services agreements, construction project accounting, etc. are
typically included in Capital Project Costs that can be paid from tax-exempt bond proceeds, so should be included
here. The Parties agreed at the 8/8/12 Council work session to delete the text that we have taken out.
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##. Net Proceeds means for any bond issuance (including the Water Tank Bonds) the
amount of bond proceeds available for payment of Capital Project Costs.4
District Debts means, collectively: (i) the principal amount and Bond Requirements for
the Tank Project Bonds, TCMD Reissue, Supplemental Bonds; (ii) Deferred Fees and Deferred
Amortization as defined in Exhibit G; and principal and interest on Past Developer Advances
and Additional Developer Advances. For avoidance of doubt, District Debts comprise those
costs which must be fully repaid before termination of the Town’s obligation to maintain the Tax
Credit.5
Municipal Payments means that portion of the Add-On RSF Revenues derived from
application of the Add-On RSF to retail sales transactions only (and not to any other Taxable
Transactions), and which the Town otherwise is entitled to receive, as more particularly
described in Sections Error! Reference source not found. and 6.5, in implementation of the
Settlement Term Sheet and in consideration of (1) providing municipal services as contemplated
by the Original Agreement, (2) releasing TCMD from past and future sales tax indemnification
payments as set forth in the Original Agreement, and (3) assuming existing annual maintenance
obligations being performed by TCMD prior to the Effective Date as described in Section 4.2(c).
ARTICLE 6
FINANCING PLAN
6.1 General. The Credit PIF and the Tax Credit are imposed to facilitate TCMD’s
ability to finance and construct Capital Projects through Supplemental Bonds and to pay the
TCMD Bond Reissue, Tank Project Bonds and Past Developer Advances up to the Credit PIF
Cap.
(a) Credit PIF and Town Tax Credit. The PICs have imposed the Credit PIF
on Taxable Transactions occurring within the Property as set forth in the PIF Covenants and the
Town has enacted the corresponding Tax Credit as set forth in Section 6.4. The Credit PIF
Revenues are pledged to TCMD and collected on TCMD’s behalf by the Credit PIF Collection
Agent as more particularly set forth in the Credit PIF Collection Services Agreement. The Town
shall maintain the Tax Credit in full force and effect for as long as the Credit PIF remains in
effect for the payment of District Debts (as defined in Section 6.2(c) below) in consideration of
the remittance and application of the Credit PIF Revenues toward payment of the costs of Capital
4 This definition for “Net Proceeds” distinguishes the amount available for payment of Capital Project Costs from
any bond issuance from the par (also referred to as the “principal”) amount of such bonds – a concept discussed at
length at the 8/8/12 Council work session.
5 Our revisions are structured to use the term “District Debts” (referred to as “District Obligations” in prior
versions) only to include those costs that must be fully repaid before the Credit PIF can be terminated as
distinguished from other financial obligations that do not affect the term of the Credit PIF. We listed the items that
comprise District Debt in the definition based on the table that everyone agreed upon at the 8/8/12 Council work
session.
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Projects up to the Credit PIF Cap as provided in this Development Agreement, and as more
particularly set forth in Section 6.2. If payment of outstanding District Debts occurs before
January 2, 2040, and TCMD has not incurred debt up to the Credit PIF Cap (as may be reduced
by AURA bonds issued in accordance with Section 6.7 hereof), or received direct payments of
Credit PIF for Capital Projects in combination with incurred debt up to the Credit PIF Cap, then
the Tax Credit shall continue in effect until the later of (A) January 2, 2040, or (B) the date on
which any additional District Debts arising from TCMD incurring additional debt for Capital
Projects prior to January 2, 2040, including payment of all Bond Requirements thereon, have
been paid in full. Notwithstanding the foregoing, the Town may elect, but shall not be required,
to terminate the Tax Credit after January 2, 2040 if the only remaining District Debtsobligations
are the Avon Receivable and accrued interest thereon as set forth in Section 6.2(c)(iv) and the
reimbursement of Town cure payments as set forth in Section 6.2(c)(v).
(b) Termination of Town Tax Credit. The Town may terminate District’s
right to receive Credit PIF Revenues and the Tax Credit shall terminate upon satisfaction of the
payment in full of District Debts as set forthexcept as otherwise provided in Section 6.1(a)
above.6 Upon termination of the Town’s Tax Credit, the Town shall be entitled to impose,
receive and retain all taxes applicable to sales transactions, accommodations/lodging
transactions, real estate transfer transactions and other transactions occurring within the Project.
(c) DiscontinuanceTermination of Remittance ofObligation to Remit Add-On
RSF Revenues. The Master Developer and Town’s right to receive the Commercial PIC may
discontinue remittingMunicipal Payments generated through the PICs’7 imposition of the Add-
On RSF Revenues to the Town whenshall terminate concurrently with the District Debts are paid
in fulltermination of the Town’s obligation to maintain the Tax Credit as set forth in Section
6.1(a) and (b) above.8 If the Commercial PIC electsPICs elect to continue the imposition of the
Add-On RSF, in whole or in part, after discontinuation of the Master Developer’s and
Commercial PIC’sPICs’ obligation to remit the Add-On RSF Revenues to the Town, then the
Commercial PICPICs may use the Add-On RSF Revenues for any purpose permitted under the
Declaration ofPIF Covenants.9 This section shall not operate to relieve the Master Developer
and the Commercial PICPICs from their obligation to remit to the Town the Add-On RSF
RevenuesMunicipal Payments and any interest for any outstanding balance which accrued prior
to the date that the District Debts are paid in full.
(d) Continuation of Town Tax Credit. If, after all District Debts are paid in
full, the Town desires to terminate the Tax Credit but is precluded from doing so due to Article
X, Section 20 of the Colorado Constitution or any other applicable state or federal law, and the
Town has in good faith pursued and failed to accomplish legally available alternatives for
6 This language was revised to be parallel to the language we re-inserted into the subsection (c).
7 “PICs” is a defined term that comprises the Commercial PIC and the Mixed-Use PIC, so unclear why Town’s
version refers only to the Commercial PIC.
8 Termination of the obligation to remit the Municipal Payments needs to be tied to termination of the Tax Credit
obligation.
9 “PIF Covenants” is the defined term for the declarations and covenants that are imposing the Add-On RSF.
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terminating the Tax Credit then the PICs shall continue to impose the Credit PIF and shall remit
to the Town on a monthly basis all Credit PIF Revenues actually collected, less the costs and
expenses incurred by the PICs in connection with collecting such Credit PIF Revenues. In such
event, the Town shall have no right or interest in any Add-On RSF Revenues, and neither the
PICs, TCMD nor Master Developer shall have any obligation to cause any Municipal Payments
to be remitted to the Town.
6.2 Tax Credit. The Town has established the Tax Credit in an amount corresponding
to the Credit PIF. The Tax Credit is incorporated at Sections 3.08.035 (with respect to sales tax),
3.12.065 (with respect to real estate transfer tax) and 3.28.075 (with respect to public
accommodations tax) of the Municipal Code (as in effect on the Effective Date). For the purpose
of implementing the Settlement Term Sheet, the following terms further define the Town’s Tax
Credit obligation:
(a) Duration. The Town shall maintain the Tax Credit in full force and effect
as set forth in Section 6.1(a). 10
(b) Credit PIF Cap. The Credit PIF Cap (“Credit PIF Cap”) is the maximum
principal amount of the following obligations to which Credit PIF Revenues can be pledged is
$96,000,000 (NINETY SIX MILLION DOLLARS) of (the District Debts which are defined as
follows:“Credit PIF Cap”).11
(i) The following District Debts currently count against the Credit PIF
Cap:
(A) TCMD Bond Reissue (in the original principal amount of
$52,100,000).
(B) Net Proceeds of the Tank Project Bonds in the approximate
amount of $9,000,000 (the precise amount to be the principal amount of Water
Tank Bonds actually issued).
(C) Past Developer Advances in the amount of $12,000,000
[insert actual amount] (provided that Past Developer Advances may be replaced
by Replacement Bonds as set forth in Section 6.11).12
(ii) After deduction of the District Debts described in subsections
(b)(i)(A)-(C) of this Section 6.2, the remaining Credit PIF Cap leaves approximately
$[23,000,000] (subject to reduction by not more than $10 million in accordance with
Section 6.7(g))Net Proceeds from any bonds issued by AURA available for payment of
10 The duration is already addressed in Section 6.1 and re-stating the matter again potentially creates ambiguity.
11 Our revision is to accommodate the fact that there are items in addition to District Debts that count against the
Credit PIF Cap. Thus we refer to “obligations” in the broader sense.
12 Whether amounts advanced for municipal services payments and sales tax indemnities should be included
remains to be resolved between the Town and the Master Developer.
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or financing the costs of Capital Projects. Costs in accordance with Section 6.7(a)).
Capital Projects Costs shall count against the remaining Credit PIF Cap, whether such
costs are paid from Additional Developer Advances, the net proceedsNet Proceeds of
Supplemental Bonds or directly from Credit PIF Revenues. The principal amounts and
Bond Requirements of any Supplemental Bonds, Replacement Bonds or other debt
instruments issued to repay, refund and/or defease any of the District Debts described in
subsections (b)(i)(A)-(C) of this Section 6.2 shall not count against the Credit PIF Cap
(i.e., refunding debt obligations shall not result in counting the principal amount more
than once against the Credit PIF Cap).
(iii) TCMD’s, Master Developer’s and Town’s contributions to asphalt
overlays pursuant to Section 6.6 shall all count against the Credit PIF Cap.
(iv) Reimbursement of Town cure payments set forth in Section
6.2(c)(v) shall not count against the Credit PIF Cap.
(iii) 13
(iv) 14
(c) Uses of Credit PIF Revenue. Subject to the prioritization of payments set
forth in Section 6.9(b), Credit PIF Revenues may be utilized to pay the following obligations,
which, except for items (vii) and (viii), shall comprise the “District Debt”::
(i) Payment or reimbursement of all District Debts inclusive of
principal amounts, interest and all Bond Requirements related to the TCMD Bond
Reissue, the Tank Project Bonds and, if any Supplemental Bonds that may be issued in
the future in accordance with the provisions of this Development Agreement..15
(ii) TCMD’s annual contribution to the Asphalt Overlay Account
pursuant to Section 6.6.
(iii) Past Developer Advances and accrued interest thereon.
13 Deleted based on 8/1/12 Council work session. Developer’s contribution to asphalt overlay would count against
the Credit PIF Cap only if advanced to TCMD with the expectation that the Developer would be reimbursed by
TCMD with District Revenues (which includes Credit PIF Revenues), because under this circumstance, such
advances would become “Additional Developer Advances” which count against the Credit PIF Cap under Section
6.2(b)(ii). If the Developer makes direct contributions to the Asphalt Overlay Account that are not reimbursable by
TCMD, then such amounts would not be “Additional Developer Advances” and, therefore would not count against
the Credit PIF Cap. Town contributions are paid from Municipal Payments, not Credit PIF Cap. TCMD
contributions are within the definition of “Allowed O&M Expenses,” which do not count against the Credit PIF Cap.
14 The rationale for deleting references to the Town cure payments from Section 6.2(b) is to avoid ambiguity. By
listing just one of the many items that do not count against the Credit PIF Cap here, it could create an argument in
the future that other items not specifically identified here as not counting DO count against the Credit PIF Cap.
15 Under the new definition of “District Debts,” this includes Past Developer Advances and Additional Developer
Advances.
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(ii) 16
(iii) 17
(iv) The Avon Receivable and accrued interest thereon.
(v) Reimbursement of Town cure payments, if any, along with accrued
interest thereon pursuant to Section 6.12.
(vi) Deferred Fees, as defined in Exhibit HG, together with interest
thereon, and Deferred Amortization as defined in Exhibit HG.
(vii) The Allowed O&M Expenses. (including TCMD’s annual
contribution to the Asphalt Overlay Account).
(viii) Direct payment of Capital Project Costs.
(d) Minimum Non-Credit PIF District Revenues During the Term. The
parties recognize and acknowledge that during the Term TCMD may pledge VMD property tax
revenues and other non-Credit PIF Revenues for the payment of District DebtDebts in order to
facilitate and obtain the best financing terms available. The parties further recognize and
acknowledge that TCMD’s ability to comingle various revenue sources in its general fund
provides financial advantages and efficiencies. Therefore, for the purpose of allowing TCMD
financially advantageous flexibility while at the same time insuring that the Town’s Tax Credit
obligation does not become additionally encumbered by TCMD’s obligations in excess of the
District DebtDebts and Credit PIF Cap, during the Term, TCMD and the VMD shall raise
revenue from sources other than the Credit PIF in an amount at least equal to the Allowed O&M
Expenses for each year. Such sources may include, but are not limited to revenue raised from
the VMD’s mill levy or a future TCMD mill levy, tap fees or other fees imposed by TCMD or
the VMD; provided however, that such revenue is not required to be spent on Allowed O&M
Expenses (for example, this obligation shall be met if the Annual Debt Service Pledge Amount
on the Tank Project Bonds equals or exceeds the Allowed O&M Expenses and is paid from
VMD property tax revenue). No Municipal Payments can be counted towards satisfaction of this
obligation.
6.3 Assessment of Public Improvement Fees. Pursuant to the PIF Covenants and as
contemplated in the Original Agreement, the PICs have imposed and shall continue for the
duration of the Term18 to impose the Credit PIF and collect the Credit PIF Revenues in
accordance with the terms and conditions of the PIF Covenants and applicable provisions of this
Development Agreement. Pursuant to the PIF Covenants and in implementation of the
Settlement Term Sheet, the PICs have imposed and shall continue for the duration of the Term to
16 Deleted TCMD asphalt overlay contributions because it is included in definition of “Allowed O&M Expenses.”
17 Deleted Past Developer Advances because it is included in new definition of “District Debts.”
18 We need to review definition of “Term” to make sure it is consistent.
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impose the Add-On RSF and to collect the Add-On RSF Revenues in accordance with the terms
and conditions of the PIF Covenants and applicable provisions of this Development Agreement.
6.3(a) Town Real Estate Transfer Tax. In full settlement of any and all claims
that could be raised or asserted regarding whether the Town’s real estate transfer tax and the
PICs’ Real Estate Transfer Fee apply to the leases pursuant to which Home Depot and Wal-Mart
occupy their present locations within the Project as of the Effective Date or to apply to any
extension(s) of such leases: 19
(a)(i) Existing Wal-Mart and Home Depot Leases. The Town’s real
estate transfer tax shall not be construed to apply to the leases pursuant to which
Home Depot and Wal-Mart occupy their present locations within the Project as of
the Effective Date or to apply to the election of lessee to exercise its rights to
extend such leases in accordance with the terms of the respective original lessees.
(b)(ii) Waiver of Claims. Accordingly, the Town hereby fully and
irrevocably waives any and all claim or right to impose its real estate transfer tax,
and the Commercial PIC hereby fully and irrevocably waives any and all claim or
right to impose the Real Estate Transfer Fee, upon the existing leases (together
with extensions and options to extend thereunder) for Wal-Mart and Home Depot.
(c)(iii) Applicability of Municipal Code. Concurrently with the Effective
Date, the Town has adopted Ordinance [insert number] pursuant to which it has
amended Chapter 3.12 of the Municipal Code to clarify various matters relating to
the circumstances under which a long term lease constitutes a Taxable
Transaction for purposes of triggering an obligation to pay the Town’s real estate
transfer tax. During the Term, imposition and collection of the Real Estate
Transfer Fee shall be administered based Chapter 3.12 of the Municipal Code as
amended by Ordinance [insert number] and in effect on the Effective Date.
Transactions subject to the Town’s real estate transfer tax shall be subject to the
Real Estate Transfer Fee, and payment of the Real Estate Transfer Fee shall result
in the automatic and simultaneous application of the Tax Credit. The Real Estate
Transfer Fee shall not be construed to be part of the Taxable Transaction, and the
Town shall not apply its real estate transfer tax to the Real Estate Transfer Fee. If,
notwithstanding the foregoing, the Town is legally required pursuant to state
statute to impose and collect its Real Estate Transfer Tax on the Real Estate
Transfer Fee during the Term, the Town shall remit to TCMD 100% of the Real
Estate Transfer Tax revenues actually collected. During the Term, no amendment
to Ordinance [insert number] or to Chapter 3.12 of the Municipal Code shall
apply to real estate transactions occurring within the Property except with the
prior written consent of Master Developer. [Note: The Town needs to produce a
draft of the referenced Ordinance/Code amendment.]
19 The Real Estate Transfer Tax discussion seems to be a separate topic. So the formatting has been adjusted.
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(d)(iv) Inapplicability to Lease Amendments. The exemption and waivers
of applicability of the Town’s real estate transfer tax to existing long term leases
shall not apply to any amendment to long term leases after July 1, 2012 which
have the effect of extending the term of such lease or establishing new or
additional rights to extend the term of such lease.
6.4 Rate of Public Improvement Fees. In implementation of the Settlement Term
Sheet, the rates of the Public Improvement Fees shall be established as set forth in the PIF
Covenants, which require such rates to be set from time to time during the Term at:
(a) Credit PIF Rates:
(i) Retail Sales Fee. The same rate as the corresponding Town sales
tax rate as in effect from time to time. As of the Effective Date, the Town sales tax and
the Retail Sales Fee each are set at the rate of 4.0%.
(ii) Real Estate Transfer Fee. The same rate as the corresponding
Town real estate transfer tax rate as in effect from time to time. As of the Effective Date,
the Town real estate transfer tax and the Real Estate Transfer Fee each are set at the rate
of 2.0%.
(iii) Accommodations/Lodging Fee. The same rate as the
corresponding Town accommodations/lodging tax rate as in effect from time to time. As
of the Effective Date, the Town accommodations/lodging tax and the
Accommodations/Lodging Fee each are set at the rate of 4.0%.
(iv) Use Tax. If the Town imposes any use tax on building materials
during the Term that is not in effect as of the Effective Date, such use tax shall be
automatically incorporated into the definition of Taxable Transaction set forth in
Exhibit G without the need of any formal action by the Town. The PICs may establish
and impose a building materials use fee, which shall be included in the definition of
Credit PIF, corresponding to such use tax and applying to the same transactions and at the
same rate as such use tax. The Town may amend its Municipal Code to reflect the
automatic Tax Credit for use tax as set forth in this sub-section, but such an amendment
shall not be required to implement the automatic Tax Credit. The Parties and any party
obligated to pay, collect or remit such use tax shall be entitled to rely and act upon the
Tax Credit being applied to such transactions in order to offset the effect of the Credit
PIF in the same manner and to the same extent as the Tax Credit applies to retail sales
transactions, real estate transfer transactions and accommodations/lodging transactions.
Prior to adopting any such use tax, the Town shall coordinate with the PICs and other
Parties regarding the implementation of any such use taxes and application of the Tax
Credit thereto. The Credit PIF imposed and collected on such Taxable Transactions shall
not be deemed to be part of such Taxable Transaction and shall not be subject to
application of the corresponding Town use tax.
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(b) Add-On RSF Rate. As of the Effective Date, the PICs have set the
Add-On RSF rate at 0.75%, to be applied only with respect to retail sales transactions that are
Taxable Transactions. TheThe net proceeds (i.e., after payment of the fees to the Add-On RSF
Collection Agent pursuant to the Add-On RSF Collection Services Agreement and application of
any other adjustments to such revenues as set forth in this Development Agreement and/or the
Add-On PIF Collection Services Agreement) of the Add-On RSF Revenues resulting from
imposition of the foregoing 0.75% rate to retail sales transactions that are Taxable Transactions
shall constitute the Municipal Payments. If the Town increases the Town’s retail sales tax rate
above 4.0 % during any period for which Municipal Payments are to be remitted to the Town, the
portion of the Add-On RSF Revenues which will be construed to be Municipal Payments shall be
reduced in the same degree as any Town sales tax rate increase above 4.0%. For example, if the
Town increases its retail sales tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-
On RSF Revenues construed to be Municipal Payments shall be that amount equivalent to a
reduction of 0.25% in the Add-On RSF rate (i.e., the revenue realized from a rate of 0.50% rather
than the revenue realized from a rate of 0.75%). As of the Effective Date, the PICs have not
imposed an Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions or set the Add-On PIF at a rate higher than the rate of the Add-On RSF required
pursuant to this Section 6.4(b). To the extent the PICs at any time after the Effective Date
impose an Add-On PIF on transactions other than retail sales transactions that are Taxable
Transactions and/or at a rate higher than the Add-On RSF rate, the resulting Add-On PIF
Revenues shall not be construed to constitute Add-On RSF Revenues or Municipal Payments.
Any Add-On PIF Revenues that do not constitute Municipal Payments pursuant to this
Section 6.4(b) may be utilized as set forth in Section 6.5(b)(ii).
6.5 Add-On PIF. In implementation of the Settlement Term Sheet, and in
consideration of the Town’s performance of its obligation to provide Municipal Services in
accordance with Section 4.1 and the Town’s performance of its obligations pursuant to
Section 4.2 and this Article 6:
(a) Collection and Remittance. During the Term, the PICs shall collect, or
cause the Add-On RSF Collection Agent to collect, the Add-On RSF Revenues. In accordance
with the terms and conditions of the Add-On RSF Collection Services Agreement, the Add-On
RSF Collection Agent shall:
(i) Separate Account. Maintain Add-On RSF Revenues in a separate
account from Credit PIF Revenues.
(ii) Remittance of Municipal Payments. Calculate that portion of Add-
On RSF Revenues received during each calendar month which comprises Municipal
Payments, and after calculating that portion of the Municipal Payments required to be
deposited into the Asphalt Overlay Account:
(A) Deposit the required amount of Municipal Payments into
the Asphalt Overlay Account; and
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(B) Remit any remaining Municipal Payments to the Town.
(b) Uses.
(i) Municipal Payments. During the Term, the Municipal Payments
shall be utilized first to satisfy the Town’s Asphalt Overlay Account funding obligations
as set forth in 6.6(a) and thereafter may be utilized by the Town for any lawful purpose.
(ii) Additional Add-On PIF Revenues. To the extent the PICs continue
to impose and collect the Add-On RSF on retail sales transactions that are Taxable
Transactions after expiration of the Term and/or there are from time to time during the
Term Add-On PIF Revenues, including any Add-On RSF Revenues, in excess of the
Municipal Payments (for example, due to a reduction in such Municipal Payments
pursuant to Section 6.4(b) or due to imposition of an Add-On PIF on transactions other
than retail sales that are Taxable Transactions), the PICs may retain and utilize such
additional Add-On PIF Revenues for any lawful purpose permitted under the terms and
conditions of the PIF Covenants. The Town shall have no right or claim to any such
Add-On PIF Revenues, including any Add-On RSF Revenues, that do not constitute
Municipal Payments.
(c) Duration. The Town’s right to receive the Municipal Payments generated
through the PICs’ imposition of the Add-On RSF shall terminate concurrently with the
termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(c) of
this Development Agreement.
(d) Implementation Period. [Note – PIC Covenant amendments will be
delivered for Town review and will be Recorded when escrow breaks. The Parties will
need to discuss the logistics and timing of implementing the Add-On RSF with respect to
existing retailers within the Project. The Town’s cooperation/assistance will be needed.]
(e) Effect of Expiration of Term. Except to the extent otherwise set forth in
the applicable PIF Covenants, expiration of the Term shall not have the effect of terminating the
Add-On RSF and, to the extent the PICs continue to impose the Add-On RSF and to collect the
Add-On RSF Revenues or any other Add-On PIF Revenues after expiration of the Term, all such
Add-On PIF Revenues may be utilized as set forth in Section 6.5(b)(ii).
6.6 Asphalt Overlay Agreement and Asphalt Overlay Account. Concurrently with the
Effective Date and in implementation of the Settlement Term Sheet, the Town, TCMD, Master
Developer and Alpine Bank, Avon Branch, have legally delivered and entered into the Asphalt
Overlay Agreement. Pursuant to the Settlement Term Sheet and the Asphalt Overlay Agreement,
the Town has established with [Alpine Bank, Avon Branch or another Escrow Agent?], a
restricted, segregated account (the “Asphalt Overlay Account”) into which the Master
Developer, the Town and TCMD shall deposit funds in the amounts and at the times set forth
below. Such funds shall be used exclusively to finance asphalt overlays of public roads located
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in the Project Dedicated20 to the Town as described in the Asphalt Overlay Agreement.Section
4.1(d).21 The Asphalt Overlay Account shall be subject to and administered in accordance with
the terms and conditions of the Asphalt Overlay Agreement and the following terms and
conditions:
(a) Joint Funding Obligations. Commencing on the Effective Date and
continuing until terminated pursuant to Section 6.6(b), Master Developer, the Town and TCMD
each shall contribute funds to the Asphalt Overlay Account as follows: [Same TCMD counsel
question re delay until 2013.]
(i) Due Dates. All payments are due and payable on or before
November 1 of each year commencing in 2012.
(ii) Town Contribution. Utilizing Municipal Payments to be deposited
into the Asphalt Overlay Account in accordance with Section __ :6.5(a)(iii)(A) and (b)(i):
(A) For calendar years 2012 through 2016, the Town shall
contribute $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS)
per year.
(B) For calendar years 2017 through and including the date on
which termination occurs pursuant to Section 6.6(b), the Town shall contribute
$75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) per year.
(iii) TCMD Contribution.
(A) For calendar years 2012 through 2016, TCMD shall
contribute $40,000.00 (FORTY THOUSAND DOLLARS) per year.
(B) For calendar years 2017 through and including the date on
which termination occurs pursuant to Section 6.6(b), TCMD shall contribute
$75,000.00 SEVENTY FIVE THOUSAND DOLLARS) per year.
(iv) Master Developer Contribution.
(A) For calendar years 2012 through 2016, Master Developer
shall contribute $80,000.00 (EIGHTY THOUSAND DOLLARS) per year.
(B) Notwithstanding any continuing obligation of the Town and
TCMD to contribute funds to the Asphalt Overlay Account after calendar year
20 The Town has replaced the defined term “Dedicated” with “dedicated to the Town.” E. Heil’s footnote notes that
“Dedicated” is not limited to the Town, but includes “any public entity” – which is true. However, the defined term
also includes the concept of when an improvement is deemed dedicated – e.g., conveyed free and clear of liens and
encumbrances.
21 The Asphalt Overlay Agreement focuses on instructions to the Escrow Agent. We think Section 4.1(d) of this
Agreement is the better reference.
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2016, Master Developer shall not have any obligation to contribute funds to the
Asphalt Overlay Account after satisfying the obligation set forth in the foregoing
clause (A).
(b) Termination of Joint Funding Obligations. The joint funding obligations
of Master Developer (unless earlier satisfied pursuant to Section 6.6(a)(iv)), the Town and
TCMD with respect to the Asphalt Overlay Account shall terminate upon the occurrence of the
earlier of: (i) 80,000 square feet of additional commercial (as defined in the PUD Guide)
development have been issued a temporary or permanent certificate of occupancy; or (ii) the total
annual Taxable Transactions have increased by at least $20,000,000 over the actual total annual
Taxable Transactions in 2011. From and after the date that the joint funding obligations
terminate as provided herein, (A) the Town shall be and remain solely responsible for performing
and funding asphalt overlays for all public roads within the Project dedicatedDedicated to the
Town, (B) Master Developer and TCMD shall have no further obligation with respect to funding
of asphalt overlays within the Project, (C) the obligations of Master Developer and TCMD to
provide such funding shall not be reinstated upon any subsequent reduction of commercial
occupancy or reduction of total annual Taxable Transactions, and (D) the expenditures and
appropriations by the Town for asphalt overlays in excess of the amounts deposited in the
Asphalt Overlay Account shall not be counted against the Credit PIF Cap.
6.7 Creation of Urban Renewal Area; Potential Utilization of TIF Revenues. In
implementation of the Settlement Term Sheet and , with the prior written consent of the Master
Developer and at the discretion of the Town and AURA, the Master Developer and Land Owner
shall provide its timely, full and reasonable cooperation in assisting Avon in the formation of an
urban renewal plan area for Lot 1 of the Project in accordance with the terms and conditions of
this Section 6.7. Master Developer or Land Owner shall have no obligation to cooperate with the
formation of an urban renewal plan area for Lot 1 of the Project if the Town or Avon Urban
Renewal AuthorityAURA fails to adhere to the following terms and conditions.; provided,
however, that the Developer shall have the right to oppose any urban renewal plan for Lot 1 that
does not prohibit the Town from exercising eminent domain powers.22
(a) Reduction of Credit PIF Cap. Subject to the following conditions, the
Credit PIF Cap may be reduced by anA maximum amount, not to exceed of $10,000,000 (TEN
MILLION DOLLARS), equal to the Capital Project costs funded by ) of Net Proceeds of AURA
bonds or other financial obligations secured and/or serviced by TIF Revenues to the following
extent:
(i) Capital Projects. Such obligationsobligation (whether in the form
of bonds, redevelopment agreement(s) and/or cooperation/funding agreement(s)) are
issued or incurred to finance Capital Projects located within the Project.
(ii) Town Improvements Excluded. The principal amount of any of
improvements to Town-owned properties (by way of example and not limitation,
22 Add at recommendation of E. Heil in his 8/10/12 email to BNP and TCMD counsel.
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improvements within or providing utilities and/or access to Planning Area B, Planning
Area E or park areas dedicated to the Town) whether financed utilizing TIF Revenues or
other Town revenues, shall not result in a reduction of the Credit PIF Cap.
(iii)(a) No Limitation on AURA Authority. Nothing in this Section 6.7(a)
constitutes a limit on the AURA’s ability to finance improvements it deems appropriate. The
restriction in this Section 6.7(a) relates only to whether bonds issued to pay the costs of such
improvements countCapital Project Costs23 may be counted against and thereby reduce the
remaining Credit PIF Cap for Tax Credit duration purposes.
(b) AURA Board Positions. Prior to or concurrently with the effective date of
any action including Lot 1 (or any portion thereof) in an urban renewal area and establishing an
urban renewal plan therefore, the Town and AURA shall take action to appoint an individual
designated by Master Developer and shall take action to appoint an individual designated by
BNP (subject only to BNP’s ability to designate a lawfully eligible individual) to the AURA
board. The Master Developer and BNP board members shall be full members of the AURA
board with equal rights, duties and responsibilities as other AURA board members with respect
to all matters pertaining to any urban renewal area within the Property, the redevelopment plan
or plans for any urban renewal area within the Property and all AURA activities of any nature
that directly or indirectly involve the establishment, implementation and administration of any
urban renewal area and any urban renewal plan within the Property. The Master Developer
representative and the BNP representative shall be subject to the statutory requirements urban
renewal authority board members concerning conflict of interest and recusal. If the AURA
board for activities affecting the Property is constituted as a separate board from that which
operates within other areas of the Town, such BNP and Master Developer board members shall
be full members for all purposes having equal standing with other AURA board members. If the
AURA board is not constituted as a separate Board from that which operates within other areas
of the Town, the BNP and Master Developer board members shall have no authority or standing
to participate in AURA board activities pertaining to areas of the Town other than the Property,
and shall recuse themselves from all such proceedings. BNP’s (including its successors and/or
assigns) right to have a member on the AURA board as set forth in this Section 6.7(i) shall
expire and terminate when BNP (including its successors and/or assigns) is no longer providing a
Letter of Credit to secure the TCMD Bond Reissue and no amounts are due and owing to BNP in
connection with the TCMD Bond Reissue.
(c) TCMD and VMD Taxes. The urban renewal plan for any urban renewal
area that includes Lot 1 (or any portion thereof), and all related governing and implementing
documents, shall acknowledge that all Project Ad Valorem Taxes are and shall remain the
property of TCMD and VMD, respectively, and shall require AURA to promptly remit to TCMD
and VMD, respectively, that portion of TIF Revenues equivalent to the Project Ad Valorem
Taxes revenues TCMD and VMD would otherwise have received but for the inclusion of Lot 1
(or any portion thereof) within the urban renewal area. No portion of the property tax increment
23 We concur with the Town’s creation of “Capital Project Costs” as a defined term, but are unclear why the Town
made revisions to strike the term here and elsewhere.
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revenues resulting from the Districts’ mill levies shall be retained or utilized by AURA for any
purpose, and shall specifically not be pledged or utilized by AURA for repayment of any bonds
issued or other financial obligations entered into by AURA, unless TCMD or VMD has
expressly consented otherwise with regard to its respective mill levy.
(d) TIF Revenues; Uses. The urban renewal plan(s) shall not contain any
provision for capturing the increment of municipal sales taxes, and shall be expressly limited to
capturing the increment of property taxes within the urban renewal area (subject to
Section 6.7(c)). AURA shall utilize all TIF Revenues generated from the urban renewal area(s)
containing all or any part of Lot 1 solely within the Project. Improvements undertaken or
financed utilizing TIF Revenues shall be subject to the Design Covenant and the review and
approval of the Design Review Board where applicable.
(e) Funding Agreement(s) with Districts. AURA may enter into enforceable
multiple fiscal year cooperation/funding agreements with a District providing that the TIF
Revenues will be assigned to the District for the purpose of financing, through the District’s
issuance of bonds or otherwise, eligible Capital Projects.
6.8 Tank Agreement. Prior to the Effective Date and in implementation of the
Settlement Term Sheet, certain parties thereto legally delivered and entered into the Tank
Agreement and as required by the Tank Agreement, not later than the Effective Date, the Pledge
Agreement has been executed and delivered. As more specifically set forth in the Tank
Agreement, the Pledge Agreement and related documentation, as of the Effective Date: (i)
TCMD is obligated to remit the Annual Debt Service Pledge Amount to the Authority; and (ii)
the Authority is obligated to construct the Tank Project and to utilize the Annual Debt Service
Pledge Amount revenues to pay debt service on the Tank Project Bonds. As of the Effective
Date, BNP has provided the original letters of credit securing payment of the TCMD Bond
Reissue, consented to this Development Agreement and consented to the Tank Agreement in
reliance on the Town’s performance of its obligation to maintain the Tax Credit in effect as
required pursuant to this Development Agreement, and on the remedies provided for herein for
the Town’s breach of its obligation to maintain the Tax Credit.
6.9 TCMD Bond Reissue; Priority Use of District Revenues. In implementation of
the Settlement Term Sheet:
(a) TCMD Bond Reissue. Concurrently with the Effective Date and with the
consent of BNP and Master Developer, TCMD has caused the TCMD Bond Reissue to be
effected. Such actions, and BNP’s and Master Developer’s consent thereto, were undertaken in
reliance on the Town’s performance of its obligations pursuant to this Development Agreement
(specifically including but not limited to the Town’s obligation to maintain the Tax Credit in
effect during the Term), and on the remedies provided for herein for the Town’s breach of its
obligations under this Development Agreement (including but not limited to the right to obtain
an order requiring specific performance of the Town’s obligation to maintain the Tax Credit).
The TCMD Reissue Documents encumber and, consistent with the Settlement Term Sheet,
establish the terms and conditions of TCMD’s utilization of District Revenues. The Town has
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the right to review and approve the TCMD Reissue Documents for consistency with this
Development Agreement. The terms and conditions of the TCMD Reissue Documents shall
control in the event of any express or implied conflict with any general description of such terms
and conditions in this Development Agreement or the Settlement Term Sheet.24
(b) Priority of Use of District Revenues.25 District Revenues are to be utilized
to meet TCMD obligations in the following priority:
(i) Debt Service on Tank Project Bonds. To the Authority, for the
Annual Debt Service Pledge Amount on the Tank Project Bonds, from such sources, in
the amounts and at such times required by the Pledge Agreement.
(ii) TCMD Asphalt Overlay Contribution, TCMD Bond Reissue and
Allowed O&M Expenses. As set forthTo TCMD, in the TCMD Reissue
Documents,amount of the amounts and at such times required therein:
(A)(ii) TCMD Asphalt Overlay Contribution. To the escrow agent for the
Asphalt Overlay Account, until such time as the joint funding obligation is
terminated,Allowed O&M Expenses (including TCMD’s contributions to the Asphalt
Overlay Account;).
(B)(iii) Principal Repayment and Bond Requirements related to the TCMD
Bond Reissue. To TCMD (or the trustee for the TCMD Bond Reissue) for principal
repayment or reimbursement and Bond Requirements related to the TCMD Bond Reissue
as required by the TCMD Reissue Documents, which includes, without limitation,
establishment and, as necessary, replenishment of the required reserve of $3,000,000, and
any refunding bonds issued to repay or defease the TCMD Bond Reissue; and.
(C) Allowed O&M Expenses. To TCMD, in the amount of the
Allowed O&M Expenses.
(iii)1. Cure Payments. To the extent the Town has exercised any
cure rights pursuant to Section 6.12 to cure a deficiency in
payment of principal or the Bond Requirements of the Tank
Project Bonds or the TCMD Bond Reissue, to reimburse the Town
for the amount of such payments and interest thereon at the
non-default interest rate commensurate with the interest paid to
bondholders at the time of the cure payment.
24 The Town deleted this sentence. E. Heil’s footnote: “Other agreements and documents should not control or
alter the terms of the CARADA as between the Town and the other parties.” The Town has the right to review and
approve the TCMD Reissue Documents, and a general rule of construction is that later documents control over older
documents – but explicitly stating what controls here is preferable to opening the door for disputes and litigation in
the future and protects all parties. Eric Heil agreed to add this sentence back in at 8/2/12 drafting session.
25 This section has been revised consistent with the table and flow chart presented and agreed upon at the 8/8/12
Council work session.
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(iv) Deferred BNP Letter of Credit Fees and Deferred Amortization.
To pay Deferred Fees, if any, together with interest thereon, and Deferred Amortization.
The prepayment or refinancing of the TCMD Bond Reissue shall require payment in full
of, or other extinguishment in full of the payment obligation with respect to, any such
Deferred Fees and Deferred Amortization. Payments of Deferred Amortization shall be
applied in inverse order of maturity.
(v) Use of Excess Revenues.
(A) Prepayment of TCMD Bond Reissue. In any year in which
any District Revenues remain after the payment of the items set forth in
subsections (i)-(iiiiv) above and the Debt Service Coverage Ratio is less
than 150%, such excess revenues shall be applied to early payment of
principal of the TCMD Bond Reissue in inverse order of maturity.
(B) Other Obligations of TCMD. In any year in which any
District Revenues remain after the payment of the items set forth in
subsections (i)-(iiiiv) above and the Debt Service Coverage Ratio is 150%
or greater:
1. Supplemental Bonds. To the extent Supplemental Bonds
have been issued, to pay the Bond Requirements related to such
Supplemental Bonds in accordance with the terms and conditions
thereof and any refunding bonds issued to repay or defease any
such Supplemental Bonds.
2. Cure Payments. To the extent the Town has exercised any
cure rights pursuant to Section 6.12 to cure a deficiency in
payment of principal or the Bond Requirements of the Tank
Project Bonds or the TCMD Bond Reissue, to reimburse the Town
for the amount of such payments and interest thereon at the
non-default interest rate commensurate with the interest paid to
bondholders at the time of the cure payment.
2.3. Past Developer Advances and Avon Receivable. To satisfy
TCMD’s payment obligations with respect to the Past Developer
Advances (including amounts payable to Buffalo Ridge Affordable
Housing Corporation) and the Avon Receivable, subject to the
following:
1. The Past Developer Advances (including any
Replacement Bonds issued to repay or defease all or a
portion of the Past Developer Advances) and the Avon
Receivable shall be paid in the order in which TCMD
incurred the obligations, with the oldest obligation to be
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paid first., except to the extent such priority of payment
conflicts with the priority and terms of the instrument
creating the obligation in which case such priority and
terms shall control.26 With respect to the Past Developer
Advances, the obligations shall be deemed to have been
incurred as of the dates set forth in the instruments creating
the obligations. With respect to the Avon Receivable, the
obligation shall be deemed to have been incurred as of the
dates on which payments were due under the terms of the
Original Agreement and/or any Municipal Service Invoice
(as the Original Agreement defined such term). The Past
Developer Advances, the Avon Receivable, and the dates
on which such obligations were incurred are more
particularly described in Exhibit E.
2. TheSimple interest rate applicable toshall accrue on
the Avon Receivable shall be 1.5% simple interest
commencing on October 7, 2011, at the rate of 8% per
annum, with accrual of interest to commence on the until
the Effective Date., upon which the interest rate shall be
reduced to 1.5%.27
3. Except to the extent stated in this clause 3, the
interest rate applicable to the Past Developer Advances
shall be as stated in the instruments creating such
obligations. Notwithstanding the foregoing or any contrary
provision of the instruments creating such obligations, the
interest rate on certain Past Developer Advances payable to
Master Developer or any Developer Affiliate shall: (A)
with respect to a principal amount equal to the principal
amount of the Avon Receivable be limited to 1.5% simple
interest per annum, commencing on the Effective Date; and
(B) such reduced interest rate shall be applied first to the
principal balance of the latest (i.e., most recently executed)
such instrument and then to each subsequent (i.e., next
most recently executed) instrument until a principal amount
equal to the principal amount of the Avon Receivable is
obtained.
4. The rate of interest and priority of payment with
respect to that portion of the Past Developer Advances
payable to Buffalo Ridge Affordable Housing Corporation
26 Revised consistent with Section 7, clause (c) of the STS.
27 TCMD and Developer have not yet agreed to these revisions.
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shall be as set forth in the document creating such
obligation, shall not be modified in any manner by the
terms and conditions of this Development Agreement, and
shall remain in full force and effect in accordance with the
existing terms except to the extent as may be modified by
mutual agreement of TCMD, Master Developer and
Buffalo Ridge Affordable Housing Corporation. Such
agreement to modify the interest rate, priority of payment
or other terms is expressly not a condition of this
Development Agreement.
(C) Direct Payment of Capital Project Costs. After the
obligations of Sections 6.9(b)(i), (ii), (iii), (iv), (v)(A) and (v)(B) are fully
satisfied and to the extent not expressly precluded by any provision of this
Development Agreement, that portion of available Credit PIF Revenues
shall be deposited to an escrow account to be used exclusively for direct
payment of costs for Capital ProjectsProject Costs.
(c) Other Legally Permissible Uses of District Revenues. Subject to the
limitations in the Service Plans, the Tank Project Bonds documents and the TCMD Reissue
Documents, nothing herein shall be construed as prohibiting the Districts from utilizing District
Revenues for any other uses not enumerated above or from imposing a mill levy and retaining
the revenues derived therefrom for the purpose of paying their operation, maintenance and
administrative expenses to the extent that such costs exceed the Allowed O&M Expenses and/or
capital costs of Public Improvements. The uses of that portion of District Revenues comprising
Credit PIF Revenues shall be those uses set forth in Section 6.2(c) herein and as otherwise
limited in this Development Agreement.
(d) Continuation of Priority of Use. If TCMD issues any form of replacement
or refunding bonds for the TCMD Bond Reissue and/or issues Supplemental Bonds, TCMD shall
cause the pertinent documentation executed in connection therewith to incorporate the general
prioritization set forth in Section 6.9(b). The Town shall have the right to review and approve
such documentation for the limited purpose of confirming conformance with the general
prioritization set forth in Section 6.9(b).28
6.10 Supplemental Bonds. If TCMD issues Supplemental Bonds on or before
January 2, 2040, TCMD shall continue to receive Credit PIF Revenues until the Tax Credit
terminates upon satisfaction of the full Credit PIF Cap. If TCMD has not issued Supplemental
Bonds prior to January 2, 2040: (i) the Town shall have no further obligation with respect to
satisfaction of the full Credit PIF Cap; (ii) the Tax Credit shall be maintained in effect until all
District Debts payable from Credit PIF Revenues as set forth in Section 6.2(c) and outstanding as
of January 2, 2040 are fully paid; and (iii) TCMD shall be entitled to retain and utilize all Credit
28 This answers the question raised at the 8/8/12 Council work session as to whether the Town would have the right
to approve Supplemental Bonds. The answer is “yes.”
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PIF Revenues it has received prior or subsequent to January 2, 2040 to be used for servicing
District Debts. Supplemental Bonds shall not be issued with interest rates that exceed market
rates. The market rate of interest for Supplemental Bonds shall not exceed the Municipal Market
Data rate for Baa investment grade bonds plus one point two five percent (1.25%) [Note:
foregoing is subject50%) (“Supplemental Bond Interest Rate”.29 To the extent the District
intends to bond underwriter and bond counsel review].issue bonds with an interest rate that
exceeds or could exceed of the Supplemental Bond Interest Rate, the District will obtain the prior
written consent of the Parties to this Agreement.30 The market rate of interest for Additional
Developer Advances shall not exceedbe eight percent (8%) simple interest until paid in full.
6.11 Replacement Bonds. Subject to any applicable terms and conditions of the
TCMD Reissue Documents, on or after the Effective Date, TCMD shall have the ongoing right
to issue bonds payable with District Revenues other than Credit PIF Revenues31 to extinguish,
replace, refund or defease Past Developer Advances (“Replacement Bonds”). The principal
amount of the Replacement Bonds shall not exceed $12.4 million without the Town’s prior
written approval, and the interest rate of such Replacement Bonds shall bear a lower interest rate
than such Past Developer Advances. For the purposes of determining the maximum allowable
interest rate of Replacement Bonds, the interest rate of Past Developer Advances which are
extinguished, replaced, refunded or defeased with Replacement Bonds shall be averaged with
regard to the respective interest rate and amount of principal to determine the net effective
interest rate. The interest rate of Past Developer Advances shall be as determined by this
Development Agreement on the Effective Date.32 The amount of such Replacement Bonds, or
any bonds issued to defease such Replacement Bonds in whole or in part, shall not count against
the Credit PIF Cap to avoid counting the amount of the Past Developer Advances more than once
which have already been applied to the Credit PIF Cap. To the extent the accrued and unpaid
interest payable under the terms of the Past Developer Advance documents is not capitalized in
or paid from the proceeds of the Replacement Bonds, the unpaid interest shall be carried forward
as an accrued and unpaid interest obligation under the terms of the Past Developer Advance
documents, the unpaid interest obligation shall not bear any interest, and the unpaid interest
obligation shall not be discharged until paid in full.
6.12 Town Cure Payment Rights. As contemplated by the Settlement Term Sheet, the
Town shall have the right, but not the obligation, to cure any TCMD payment default under the
Tank Project Bonds, the TCMD Reissue Bonds or any Supplemental Bonds and to receive
reimbursement of any such cure payments in accordance with the terms and conditions of
Section 6.9(b)(v)(B)(2).
29 The underwriter for TCMD’s bonds and TCMD bond counsel have determined 1.5% is more consistent with
market rates based on a non-rated credit.
30 If the District is doing a variable rate transaction and even though variable rate bonds generally have interest rates
that are much lower than traditional bonds there could be circumstances where interest rates exceed the
Supplemental Bond Interest Rate. For example, during the financial crisis in September, 2010 the interest rates on
some rated variable rate bonds increased substantially for a 4-6 week period until the credit market restabilized.
31 It is unclear why the Town struck “other than Credit PIF Revenues,” as this is what distinguishes Replacement
Bonds from bonds that are secured, in part, by Credit PIF Revenues.
32 TCMD waiting for input from underwriter regarding this matter.
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6.13 Town Funding of Credit PIF Cap. At any time during the Term, the Town shall
have the right, but not the obligation, to pay off all or a portion of the then-outstanding District
Debt and/or satisfy the Town’s obligation with respect to funding the full Credit PIF Cap as
follows:
(a) Full Funding of Credit PIF Cap. The Town shall have the right to fully
fund the Credit PIF Cap by: (i) paying off all then-outstanding District Debt; and (ii) remitting
to TCMD the principal amount of any remaining Supplemental Bonds capacity which has not yet
been issued as of the date of payoff. The total obligation to TCMD shall not exceed the Credit
PIF Cap. For example, if the sum of the principal amount of previously retired TCMD Bond
Reissue obligations and other District Debt retired by the Town totals $80 million, the principal
amount of unissued Supplemental Bonds to be paid by the Town to TCMD would be $16 million
[$96 million - $80 million = $16 million]. Upon remitting the funds to fully fund the payoff
amounts pursuant to the foregoing terms and conditions, the Town shall be entitled to terminate
the Tax Credit. Simultaneously with Town’s exercise of its right to terminate the Tax Credit, the
PICs’ obligation to cause the Municipal Payments to be remitted to the Town pursuant to the
terms and conditions of this Development Agreement, and all right or claim of the Town to
receive any portion of the Add-On RSF Revenues imposed after the date which Town exercises
its right to terminate the Tax Credit, shall automatically terminate and be forever extinguished.
(b) Partial Funding of Credit PIF Cap. Alternatively, the Town may elect to
pay off the then-outstanding District Debt but not to advance the funds required to fund the
unissued Supplemental Bond capacity remaining available to TCMD. In such event and as
otherwise provided in this Development Agreement, the Tax Credit shall continue in effect for
the duration of the Term, the PICs shall continue to impose the Credit PIF and cause the
collection of the Credit PIF Revenues, and the PICs shall continue to cause the Municipal
Payments to be remitted to the Town. All Credit PIF Revenues available to TCMD (for
example, not otherwise encumbered by and required to service debt on Supplemental Bonds
issued after the date of the Town’s payoff) shall be placed in escrow by TCMD and applied from
time to time toward Supplemental Bonds and/or direct payment of costs for Capital
ProjectsProject Costs. The Credit PIF Revenues placed into escrow shall be subject to an
agreement which grants the Town the right to enforce, restrict and limit the use of such escrow
funds for payment of Capital ProjectsProject Costs.
6.14 Internet, Mail Order and Similar Remote Taxable Transactions. The Parties
intend that retail sales transactions effected remotely should be subject to the Credit PIF and the
Tax Credit whether such remote transactions are effected via the internet, by mail order or
otherwise delivered into the Project such that the transaction is a Taxable Transaction. However,
due to logistical and practical impediments to causing the Credit PIF and the Tax Credit to attach
to such transactions or otherwise tracking and allocating such revenues, it has not heretofore
been possible to effect the Financing Plan with respect to such remote transactions. From and
after the Effective Date, by not later than March 1 of each year during the Term, the Town shall
on an annual basis provide to TCMD, BNP and Master Developer a written accounting of the
aggregate sales taxes received by the Town during the prior calendar year as a result of such
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remote transactions. Concurrently with delivery of the written accounting, the Town shall remit
to TCMD a proportionate share of such remote sales tax receipts in an amount equal to the ratio
of residential dwelling units within the Project to the total residential dwelling units within the
Town pursuant to the following formula: [(total residential dwelling units within the Project /
total residential dwelling units within the Town) x sales tax receipts from remote transactions =
amount payable to TCMD]. If the Parties identify a more precise and equitable method of
implementing the intent of this Section 6.1(a) (for example, causing the Property to be
established as an independent and separate zip code from the rest of the Town to enable precise
tracking of sales taxes generated from remote Taxable Transactions effected within the
Property), such method may be implemented by amendment to this Development Agreement in
accordance with Section 1.5.
6.146.15 Other Taxes Town May Not Collect. The Town shall not be entitled to
impose, collect, receive, retain, expend or utilize Town taxes imposed upon PIC fees as
described herein. In the event that the Town is legally required by state or federal law to impose
the Town’s tax on a PIC fee as described herein, the Town shall remit the amount of the Town
tax imposed upon the PIC fee to TCMD and such revenues shall be included with Credit PIF
Revenues.
(a) Use Tax. In the event that the Town enacts and imposes a use tax on
building materials, the Town shall not impose such Town use tax on any Use Fee.
(b) Real Estate Transfer Tax. The Town’s real estate transfer tax shall not
apply to the Real Estate Transfer Fee.
6.156.16 Other Taxes Town May Collect. The Town is entitled to collect, receive,
retain, expend and utilize for any lawful Town purpose in the Town’s discretion the following
tax revenues:
(a) Sales Tax Applied to PIF. The Retail Sales Fee and the Add-On RSF
added to each retail sales transaction shall be included in the Taxable Transaction. The Retail
Sales Fee and Add-On RSF shall be subject to the Town’s sales tax and the Town is entitled to
collect, receive, retain, expend and utilize such sales tax revenues.
(b) Accommodations Tax Applied to PIF. The Accommodations/Lodging
Fee shall be included in the Taxable Transaction. The Accommodations/Lodging Fee shall be
subject to the Town’s accommodations tax. The Town’s sales tax and accommodations tax shall
be cumulatively applied to the Retail Sales Fee, the Add-On RSF and the
Accommodations/Lodging Fee and the Town is entitled to collect, receive, retain, expend and
utilize such combined sales and accommodations tax revenue. 33
33 Need Developer input on this matter.
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(c) Town Ad Valorem Taxes. The Town is entitled to collect, receive, retain,
expend and utilize all ad valorem property tax revenues resulting from imposition of the Town’s
property tax mill levy within the Project.
(d) Town Share of Eagle County Sales Taxes. The Town is entitled to collect,
receive, receive, expend and utilize any portion of Eagle County’s sales revenues generated by
transactions occurring within the Project to which the Town is entitled to receive pursuant to any
agreements with Eagle County in effect from time to time.
(e) Internet, Mail Order and Similar Remote Taxable Transactions. The
Town is entitled to collect, receive, retain and expend at the Town’s discretion any sales tax
revenues from internet, mail order or other remote taxable transactions for which the PICs are
not able to impose a retail sales fee.
(f)(e) Future Taxes, Assessments and Fees. The Town is entitled to collect,
receive, retain, expend and utilize in the Town’s discretion all future taxes, assessments and fees
imposed by the Town and not addressed in this Development Agreement which are imposed
uniformly and non-discriminately throughout the Town.
6.166.17 Books and Records. The Town, AURA, the PICs and the Districts each
shall maintain adequate books and records to accurately perform and account for their respective
obligations under this Development Agreement. Each such Party shall, upon request of any
other such Party, permit representatives of such requesting entity reasonable access during
normal business hours to review and, at the requesting entity’s expense, audit such books and
records in order to permit such requesting entity to determine compliance with the terms of this
Development Agreement or the accuracy of any information contained in any statement, notice,
invoice or report required to be provided under this Development Agreement. All such Parties
shall use their best efforts to resolve any issues, discrepancies, or inaccuracies discovered in any
such statement, notice, invoice or report or in such requesting entity’s review or audit of the
applicable books and records. For so long as BNP is providing a Letter of Credit to secure the
TCMD Bond Reissue or any amounts are due and owing to BNP in connection with the TCMD
Bond Reissue, BNP shall have the same right to reasonable access to review and audit books and
records to determine compliance with the terms of this Development Agreement or the accuracy
of any information as set forth above with respect to the Town, AURA, the PICS and the
Districts.
6.176.18 Cooperation Regarding Delinquent Credit PIF Revenues. If the PICs are
unable to collect any portion of the Credit PIF Revenues due to delinquency, deficiency, or
failure to file, the PICs may promptly notify the Town in writing, and the Town shall institute the
procedures authorized under the Municipal Code to enforce and collect the corresponding Town
tax, interest, penalties and costs. The Town shall then remit such tax revenues to the PICs or to
the District, subject to the following conditions: (a) the Town shall retain an amount equal to its
costs incurred in enforcing its collection of taxes under the Municipal Code, as well as an
administrative fee equal to 20% of any tax and/or penalty actually collected; (b) the obligation is
subject to any prior lien on such Town taxes securing the Town’s sales tax revenue bonds
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outstanding as of the date of the Original Agreement; (c) the Town will have no responsibility to
collect Add-On RSF Revenues; and (d) the Town does not guarantee or insure that it will be able
to collect any delinquent or deficient Credit PIF Revenues. Under no circumstances shall the
Town be subject to any legal liability to the PICs or to the Districts on account of the Town’s
failure to collect some or all of the delinquent or deficient Credit PIF Revenues on behalf of such
entities. The Town acknowledges that if the person or entity which failed to timely remit such
Credit PIF Revenue subsequently remits such Credit PIF Revenue to the applicable PIC, such
payment shall result in the application of a simultaneous credit against such person or entity’s
corresponding tax obligation, which credit shall fully satisfy any corresponding tax liability to
the Town. The Town shall nevertheless be entitled to recover from the PICs the administrative
fee and any costs incurred in the enforcement and recovery of such Credit PIF Revenues.
6.186.19 Creation of Additional PICs and/or Districts. Master Developer reserves
the right to create such additional public improvement companies and/or special districts as may
be necessary or desirable from time to time, and the Town shall reasonably cooperate with
Master Developer with respect to the creation of such additional entities.
6.196.20 Operation of PICs and Districts. The formation documents of the PICs
and the Districts, together with contracts entered into by and between the PICs and the Districts,
require the PICs and the Districts to honor their obligations under this Development Agreement,
including the obligation of the PICs to cause the Credit PIF Revenues and the Add-On RSF
Revenues to be imposed, collected, remitted and utilized as required by the terms of this
Development Agreement. The Town shall cooperate with the operation of the Districts, and with
implementation of the Financing Plan.
6.206.21 Dissolution of Districts. Any dissolution of any District shall be conducted
in accordance with the provisions and procedures set forth in Colorado Revised
Statutes §§ 32-1-701, et seq. as may be amended from time to time.
6.216.22 City Market Sales Tax. City Market is a significant sales tax generator for
the Town. The relocation of City Market from the existing location as of the Effective Date to
the Property would result in a significant sales tax loss to the Town under the Credit PIF and Tax
Credit arrangement. Therefore, this Section 6.21 establishes terms which treat City Market
differently than other sales tax generating business which may locate within the Property for the
purpose of preventing a net sales tax loss to the Town.34
(a) Notwithstanding any other provision in this Development Agreement to
the contrary or in conflict with this Section 6.21, the Town shall have no obligation to provide a
Tax Credit for City Market if City Market relocates its current store from its current location in
the Town as of the Effective Date to a site within the Property. The Town shall have the
obligation to remit to TCMD the amount of sales tax revenue generated by a City Market store
located in the Property which exceeds the base amount (“Base Amount”) as defined in Section
6.21(b).
34 This matter remains unresolved.
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(b) The Base Amount shall be the amount of sales tax the Town collected
from City Market at its existing location on the Effective Date during a given twelve (12) month
period ending six (6) months prior to the date that City Market has closed for business at the
current City Market store, subject to the following adjustments for each year during the Term: (i)
The Base Amount shall first be adjusted on an annual basis for inflation as measured by the
annual change, if any, in the Consumer Price Index, Series ID: CUUSA433SAO (All Urban
Consumers; Not Seasonally Adjusted; Denver-Boulder-Greeley, CO; All Items; Base Period
1982-84 = 100; 1st half of 1998 = 160.5); and (ii) the Base Amount shall then be reduced by the
amount of sales tax generated by new businesses at the City Market property existing location on
the Effective Date (the “Adjusted Base Amount”).
(c) Town shall remit to TCMD the amount of sales tax revenue generated by a
relocated City Market which exceeds the Adjusted Base Amount in twelve (12) equal monthly
installments, on or before the twentieth (20th) day of each calendar month, commencing with the
month that the relocated City Market opens for business. Within sixty (60) days after the end of
each such twelve (12) month period, the Town shall deliver to TCMD an accounting with respect
to sales tax revenues collected from the vacated City Market site. If Town h as paid to TCMD
more than the actual amount due, the Town shall be entitled to a commensurate credit and shall
deduct such amount from Town’s subsequent payments to TCMD until the credit for
overpayment is satisfied. If Town h as paid to TCMD less than the actual amount due from
Town , Town shall pay the balance owing within sixty (60) days after receipt of such accounting
from the Town.
(d) With respect to the foregoing, TCMD shall have the right to review and
have audited the Town’s records pertaining to collections of sales tax revenues and calculation of
the applicable Adjusted Base Amount, substantially in accordance with the terms, conditions and
procedures described in Section 6.16 above.
(e) City Market shall not be deemed to have relocated from its existing
location to a location within the Property if City Market ceases business at its current site for a
period of at least five (5) years prior to the earlier of (i) receipt of an application for a building
permit to construct a City Market store or (ii) receipt of an application for a business license to
operate a City Market store within the Property. In such case, such City Market store located
within the Property shall be subject to the Credit PIF, the Town shall be obligated to provide a
Tax Credit, and this Section 6.21 shall not apply.
(f) All references to City Market in this Section 6.21 shall include successors
and assigns of City Market.
6.226.23 Relationship to TCMD Service Plan and VMD Service Plan. This The
obligations and rights of the Districts set forth in this Development Agreement, along with all
exhibits, and this Article 6 in particular is not intended and shall not be construedtheir
performance and exercise thereof, if and to affect, modify or amendthe extent in conflict with
any provisions of the TCMD Service Plan or the VMD Service Plan. Furthermore, the title of
this Article 6 as “Financing Plan” , respectively, are hereby approved by the Town and shall not
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be interpreted or construed to affect, modify, amend or replace the Finance Plan in the TCMD
Service or the Finance Plan in the VMD Service Plan. as violations or material modifications to
the service plans.35
35 Our revisions are intended to eliminate any ambiguity that, even if a colorable argument could be made that the
District’s performance of their obligations or exercise of their rights under this Agreement constituted a material
modification under the statute, that the Town is expressly approving same.
DRAFT
McGEADY SISNEROS, P.C.
June 28, 2012
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EXHIBIT G
Debt Service Coverage Ratio
“Debt Service Coverage Ratio” means, for any year, aggregate Net Revenue received by or on
behalf of both Districts during such period divided by Debt Service for such year.
For the purposes of calculating the Debt Service Coverage Ratio:
1. “Net Revenue” means, for any year, all District Revenues received by the
Districts (including, without limitation, District Revenues paid to the Authority in satisfaction of
the Annual Debt Service Pledge Amount for the Tank Project Bonds) less the Allowed O&M
Expenses and TCMD’s contribution to the Asphalt Overlay Account for such year; provided,
however, for purposes of the calculation of Debt Service Coverage Ratio, one-time or non-
recurring District Revenues (e.g., proceeds from Supplemental Bonds or Additional Developer
Advances) shall not be included in Net Revenues; provided further that tap fees shall not be
considered one-time or non-recurring District Revenues and shall be included in Net Revenues.
2. “Debt Service” means, for any year, the sum of the total amount to be paid or
deposited for the purpose of paying (i) principal due in such year on (A) the TCMD Bond
Reissue and (B) if any, Supplemental Bonds pursuant to the requirements of the documents
under which such obligations are issued, plus (ii) payments of Bond Requirements related to
such bonds payable in such year, plus (iii) the Annual Debt Service Pledge Amount on the Tank
Project Bonds, plus (iv) the Deferred Amortization and Deferred Fee amounts due in such year
(which shall be a cumulative total of the Deferred Amortization and Deferred Fees due from
prior years, if any, and the current year).
3. “Deferred Amortization” means, (i) in any year, the difference between the
principal amount due on the TCMD Bond Reissue and the principal amount that was due in that
year under the financing documents governing the TCMD Variable Rate Revenue Bonds, Series
2002 or the TCMD Variable Rate Revenue Bonds, Series 2004, as applicable; and (ii) as of any
date of computation, the sum of all amounts determined as set forth in (i), for years prior to and
including (but not subsequent to) the date of computation, that have not been paid as of that date.
4. “Deferred Fees” means any Facility Fees, as defined in the Reimbursement
Agreement between TCMD and BNP that will be entered into in connection with the TCMD
Bond Reissue, that are not required to be paid when accrued in accordance with the terms of the
Reimbursement Agreement, including interest thereon calculated at the rate of 2.5% per annum.