Loading...
TC Council Packet 07-15-2014 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 15, 2014 REGULAR MEETING BEGINS AT 5:00 PM AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET Page 1 PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM JENNIE FANCHER COUNCILORS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF, MATT GENNETT TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA C. EGGER TOWN CLERK: DEBBIE HOPPE ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS. GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT, AND COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC. PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MATERIALS. AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY. THE AVON TOWN COUNCIL MEETS THE 2ND AND 4THTUESDAYS OF EACH MONTH. ______________________________________________________________________________________________________________ REGULAR MEETING BEGINS AT 5:00 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. WORK SESSION WITH PLANNING AND ZONING COMMISSION 3.1. PRESENTATION AND COMMENTS ON NOTTINGHAM PARK PAVILION (STAGE) DESIGN AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 5:30 PM (SEE SEPARATE AGENDA PAGE 3) 4. RECONVENE TO REGULAR SESSION 5. PUBLIC COMMENT 6. ACTION ITEMS 6.1. PUBLIC HEARING AND ACTION ON AMPLIFIED SOUND PERMIT WITH A REQUEST BY TEAM UNLIMITED LLC TO EXTEND THE HOURS OF AMPLIFIED SOUND IN NOTTINGHAM PARK JULY 19, 2014, FOR THE XTERRA MOUNTAIN CHAMPIONSHIP RACE - EVENT MANAGER TED KOZLO 6.2. PUBLIC HEARING SECOND READING OF ORDINANCE 14-10 - CAPITAL LEASE FINANCING FOR SNOW PLOW (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6.3. FINAL DETERMINATION ON EASY LOOP TRAIL LOCATION (MAYOR RICH CARROLL) 6.4. ACTION ON FUNDING REQUEST FOR 2015 WWG FESTIVAL (TOWN MANAGER VIRGINIA EGGER) 6.5. NOTICE OF AWARD 2014 AVON ROAD LANDSCAPING IMPROVEMENTS (JUSTIN HILDRETH, TOWN ENGINEER) 6.6. NOTICE OF AWARD 2014 PEDESTRIAN MALL IMPROVEMENTS (JUSTIN HILDRETH, TOWN ENGINEER) 6.7. NOTICE OF AWARD 2014 POST BLVD LANDSCAPING IMPROVEMENT (JUSTIN HILDRETH, TOWN ENGINEER) 6.8. DEED OF EASEMENT FROM VAIL RESORTS FOR EAGLE VALLEY TRAIL (JUSTIN HILDRETH, TOWN ENGINEER) 6.9. DEED OF EASEMENT FROM EAGLEBEND AFFORDABLE HOUSING CORP. FOR EAGLE VALLEY TRAIL (JUSTIN HILDRETH, TOWN ENGINEER) 6.10. FIRST READING OF ORDINANCE 14-13 ADOPTION APPROVING THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN-OWNED RIGHT-OF- WAY AND PROPERTY AT CHRISTY SPORTS FOR DEVELOPMENT OF ADDITIONAL PUBLIC PARKING (PLANNING MANAGER MATT PIELSTICKER) 6.11. RESOLUTION 14-15 APPROVING THE ADD-ON PUBLIC IMPROVEMENTS FEE COLLECTION AGREEMENT (ATTORNEY ERIC HEIL) TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 15, 2014 REGULAR MEETING BEGINS AT 5:00 PM AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET Page 2 6.12. MINUTES FROM JUNE 24, 2014 (TOWN CLERK DEBBIE HOPPE) 7. WORK SESSION 7.1. REVIEW OF RECOMMENDED PROCESS FOR RECREATIONAL TRAILS ADVISORY GROUP SOLICITATION AND APPOINTMENT (TOWN MANAGER VIRGINIA EGGER) 7.2. COUNCIL RETREAT – AGENDA TOPICS AND START TIME 8. WRITTEN REPORTS 8.1. GIFT REPORTING DISCLOSURE REPORT FOR 2014 BEAVER CREEK RODEO SERIES 9. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 9.1. COUNCILOR JAKE WOLFE: 9.1.1. CHANNEL 5 BOARD & MARKETING 9.1.2. POSTMASTER UPDATE WITH DANTAS 9.1.3. EVENTS UPDATE MAN OF THE CLIFF 9.1.4. STAGE MEETING UPDATE WITH DANTAS 9.1.5. CREATIVE DISTRICT UPDATE 10. COUNCIL COMMENTS 11. MAYOR REPORT AND FUTURE AGENDA ITEMS 12. ADJOURNMENT FUTURE AGENDA ITEMS: July 22nd: Council Retreat; Action to Participate in Eagle County Election TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JULY 15, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET Page 3 PRESIDING OFFICIALS CHAIRMAN RICH CARROLL VICE CHAIRMAN JEANNIE FANCHER BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF, MATT GENNETT TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: DEBBIE HOPPE ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. RENEWAL OF LIQUOR LICENSES 4.1. Applicant: Y&Z, Inc. d/b/a Nozawa Sushi & Kitchen Location: 240 Chapel Place, BC115 Type: Hotel and Restaurant Liquor License Manager: Jennifer Brosch 5. MINUTES FROM JUNE 24, 2014 6. ADJOURNMENT TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JUNE 24, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - ALB 06-24-2014 Minutes.docx Page 1 1. CALL TO ORDER AND ROLL CALL Mayor Carroll called the meeting to order at 5:10 pm. A roll call was taken and Council members present were Chris Evans, Jennie Fancher, Buz Reynolds, and Jake Wolf. Dave Dantas absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Director of Economic Initiatives Susan Fairweather, and Town Clerk Debbie Hoppe as well as members from the public. 2. APPROVAL OF AGENDA There were no changes to the agenda. 3. PUBLIC COMMENT 4. PUBLIC HEARING SPECIAL EVENTS PERMIT 4.1. Applicant Name: Walking Mountains Science Center Event Name: Reach for the Peak Award Dinner Event Dates: July 10, 2014; 6 pm until 10 pm Location: 318 Walking Mountains Lane Event Manager: Gina Garrett The application was presented with no concerns for the Special Event application. Board member Wolf moved to approve the Special Events Permit for Walking Mountains Science Center for the Reach for the Peak Award Dinner; and Board member Evans seconded the motion and it passed unanimously with those present. 5. ELECTION OF AVON LIQUOR AUTHORITY VICE-CHAIRMAN Chairman Carroll moved to elect Councilor Fancher as Vice-Chairperson of Avon Liquor Authority; Board member Wolf seconded the motion and it passed unanimously with those present. 6. MINUTES FROM JUNE 10, 2014 Board member Evans moved to approve the Minutes from June 10, 2014; Board member Wolf seconded the motion and it passed unanimously with those present. There being no further business to come before the Board, the meeting adjourned at 5:15 pm. RESPECTFULLY SUBMITTED: ____________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ______________________________________ Dave Dantas ______________________________________ Chris Evans ______________________________________ Jennie Fancher ______________________________________ Albert “Buz” Reynolds ______________________________________ Jake Wolf ______________________________________ TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Brian Garner, Town Planner Date: July 15, 2014 Town Council Meeting Agenda Topic: Nottingham Park Pavilion (Stage) Update The H.A. Nottingham Park Stage Design Team has been busy working with VAg Architects to take the conceptual design into the preliminary engineering stages of the project. Submitted for consideration by the Planning & Zoning Commission (PZC) for the July 15, 2014 public hearing meeting is the formal application for the proposed H.A. Nottingham Park Pavilion (Stage) consisting of a Major Development Plan and Location, Character & Extent application as required by the Avon Development Code. Brian Judge of VAg Architects will present a brief overview of the project to Council just prior to the PZC meeting Tuesday where the PZC will take formal action on the project. The proposed Stage will be a cultural and entertainment venue for the community to enjoy music festivals and concerts, art exhibitions, theater performances, educational events and private functions in both summer and winter. As designed, the stage has a 25’ x 45’ performance space and is large enough to accommodate a 60-piece orchestra as well as bands that typically perform at events such as WinterWonderGrass. The Pump House will remain as Nottingham Lake’s irrigation pump system, with the exterior remodeled for continuity with the stage. The existing Pump House deck will be removed in favor of a new larger cantilevered deck over the Lake as the back deck to the new stage. A “Green Room” will be connected to the stage, with adequate space for theater performances. The Green Room will also serve as a small kitchen for events, which can include weddings, receptions and private gatherings. Investing in the development of the proposed Pavilion and Stage furthers the goal of building the cultural vitality of Avon’s central core. Already in 2014, the Town of Avon is hosting summer concerts with Bravo-Vail! in Nottingham Park, expanding the Reds, Whites and Brews Festival to a larger single day event, providing seed money for Flavors of Color, a culinary and arts event, and expanding a small film series as well as having partnered with the producers of WinterWonderGrass in February. Please contact me or Virginia should you wish to see the full staff report for these applications being presented to PZC or have any questions. Thank you, Brian Garner, Town Planner bgarner@avon.org 970.748.4023 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Debbie Hoppe, Town Clerk Date: July 8, 2014 Re: Public Hearing for Outdoor Use of Amplified Sound Application Permit The Town Council is asked to consider approving an Amplified Sound Permit on July 15, 2014, as requested by TEAM Unlimited LLC for the XTERRA Mountain Championship Race. A public hearing is required on Outdoor Use of Amplified Sound for events that will be using amplified sound systems before 9:00 AM or after 8:00 PM in Nottingham Park (Avon Municipal Code Chapter 5.24.020). The XTERRA Race in the park has a start time in the park for 6:30 am. Please note the public notice was printed in the Vail Daily noting the public hearing for July 15, 2014. The applicant has submitted the $25 processing fee for the Amplified Sound Permit. The applicant’s representative Ted Kozlo will join the Tuesday hearing. Background Information for Issuing Amplified Sound Permits: The “Administrative Procedures” adopted with Resolution No. 1988- 13 provide the framework for issuing this type of permit. 1. The Town Council, in making its decision to issue the Amplified Sound Permit, may consider the following: 1.1. Comments by the public. 1.2. Necessity of the permit for the cultural, historical or social benefit of the community. 1.3. Proximity of the proposed location to residential neighborhoods. 1.4. Proposed direction of sound projection. 1.5. Screening of sound from neighboring properties. 1.6. Compatibility with other uses and activities in the vicinity. 2. The Town Council may prescribe any conditions or requirements deemed necessary to minimize adverse effects upon the community or surrounding neighborhood. Attachments:  Applications for Outdoor Use of Amplified Sound Equipment  Diagram of Event in Nottingham Park showing amplified sound projections FINAL EASY LOOP TRAIL DESIGN DETERMINATION PAGE 1 OF 2 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 11, 2014 Agenda Topic: Final Determination of Easy Loop Trail in the West Avon Parcel Summary At Town Council’s May 13th, 2014, regular meeting, Council unanimously approved a Professional Services Agreement with Momentum Trail Concepts for construction of hiking/mountain biking trails in Wildridge and the West Avon Preserve. One trail, Easy Loop, was approved with direction for meeting with neighborhood residents to evaluate changes to the layout to increase distance from the trail to the homes. Since that time, three site walks have been held on-site at Beaver Creek Point to walk potential Easy Loop routes. Neighbors and interested mountain bikers have joined Mayor Rich Carroll at the on-site sessions. The last session was held July 10th, at 5:30 p.m., with approximately 15 persons in attendance. Mayor Pro Tem Jennie Fancher and Councilor Matt Gennett joined the Mayor at the site. The meeting was noticed that a quorum of Council could be in attendance and was not limited to adjoining neighbors. Prior the meeting an email was sent out the neighborhood group and mountain bikers who had participated in the previous site walks. A map was provided and the group was informed the Easy Loop route had been ribboned. Mayor Carroll, Lee Rimel, Peter Sherowski, Jim Horan, Matt Pielsticker and Casey Wyse all participated in the route design for the 36” wide trail. General features of the 36” wide route, included: • A low trail grade averaging 2%, with no grade exceeding 6% • Placement of the trail in lower areas of terrain to reduce cut visibility on higher slopes • Increased distance from homes • One entrance point from the Beaver Creek Point Parking Lot • Distance of the trail – 1.0 mile. Using the attached map, the meeting yielded general consensus that: 1) From the parking lot, the proposed single trail entrance should be changed to start from parking lot’s southwest corner, a more direct access to the loop. 2) Traveling counterclockwise on the map, the route traverse was good with approximately 50’ separating homes from the trail as the path turned west. All neighbors asked, as construction adjustments are made in the field, greater distance be provided away from the homes rather than an adjustment being shifted closer to any home. There was agreement to this “rule” for on-site construction adjustments. FINAL EASY LOOP TRAIL DESIGN DETERMINATION PAGE 2 OF 2 3) Retain an arborist familiar with aspen groves of the type on the proposed Easy Loop Trail to assess if the trail is cut through the grove what might be the effect on the top of the grove and impacts on wildlife. Momentum’s Matt Thompson should join the arborist to explain cut depth and areas of expected switchbacks. It may not be possible to have a professional arborist’s opinion by Tuesday’s meeting, but after taking public comment and reviewing written comments received prior to the meeting, Mayor Carroll will ask Council to review this preferred option and decide on the route, with the condition that a final decision on the trail ‘at the aspen grove’ be finalized once the arborist’s information has been received and reviewed. With all other approved trails in the West Avon Preserve expected to be completed in ten (10) days, this will allow the trail to commence construction during the aspen grove section review. From: Lisa and Doug Currey [mailto:douglisaj@yahoo.com] Sent: Thursday, July 10, 2014 2:40 PM To: Virginia Egger; Avon Council Web; Matt Pielsticker Subject: Easy Loop Trail Discussion Today Hello, We will be attending the meeting at the Easy Loop Bike Trail up in Wildridge. We hope that the meeting will be moderated in such a fashion as to not insult anyone but be listeners and try to include everyone's concerns and thoughts. The last meeting was awful, considering the contractor, hired by Avon, was not asked to control his black dog (without collar or license or leash who acted aggressively toward two leashed dogs and they took their dogs home) and insulted one of our neighbors to the point where he and his wife left the meeting. Nothing was said to this contractor about his manners or the way he was insulting to many of us. Please make a point of keeping this meeting respectful of everyone's opinions and letting people speak without being interrupted or insulted. Thank you, Lisa and Doug Currey 2019 Beaver Creek Point Avon -----Original Message----- From: Jack Gardner [mailto:Jack-Gardner@comcast.net] Sent: Tuesday, July 08, 2014 9:57 AM To: Matt Pielsticker Cc: Horan Home; Rich Carroll email; Virginia Egger Subject: Re: Avon Preserve Trails Matt --- I can't make the meeting this Thursday, but Jim Horan showed me the alignment of Easy Loop. I think that this layout will offer the fewest conflicts with the pedestrian-only trails. Thanks for all of you hard work!!! Jack Gardner 970-949-0949(H) 970-376-1342(M) On Jun 9, 2014, at 6:53 PM, Jack Gardner <Jack-Gardner@comcast.net> wrote: > Thanks, Matt ---- Sorry I couldn't make it today. Hope you made progress!! > Jack Gardner > 970-949-0949(H) > 970-376-1342(M) > On Jun 9, 2014, at 7:57 AM, Matt Pielsticker <mpielsticker@avon.org> wrote: >> Hi Jack >> Nothing has been finalized for the "Easy Loop" or "Plateau" area as of yet. We are meeting today at 3pm to walk areas that have been flagged for review. One idea was to reclaim portions of the main North/South existing trail for a portion of the future multi-use trail but not sure where that will go. The contractor should have also flagged the northern portion of this trail and that will be reviewed as well. >> >> Again, we are meeting at 3pm today at the BC point parking area to walk if you are interested in joining. >> >> Matt >> -----Original Message----- >> From: Jack Gardner [mailto:Jack-Gardner@comcast.net] >> Sent: Sunday, June 08, 2014 4:01 PM >> To: Matt Pielsticker >> Subject: Avon Preserve Trails >> Matt ---- I've been out of town for several weeks, but I noticed that trail development has commenced. The Playground Way alignment seems to have changed, and I'm wondering if a route for "The Plateau" has been finalized. I noticed some pink flags in the sagebrush while walking BC Point with my dog, and they didn't seem to correspond to any of the discussions that I am aware of. Could you please give me a short update?? Many thanks!! >> Jack Gardner >> 970-949-0949(H) >> 970-376-1342(M) July 7, 2014 Town of Avon Council Dear Council Members, Our family has resided for 21 years at 2150 Long Spur in Wildridge, in close proximity to the parcel of land Avon recently acquired from the Forest Service. We applaud the Council for its foresight in pursuing ownership of this land as an important amenity to all of the residents of Avon and have been pleased to see the progress on the trails system through this area. We are writing to address the recent controversy over trails in the vicinity of Beaver Creek Point. We strongly support this portion of the overall trails and access plan because it provides an entry point to the recreational area for young riders and casual walkers of all ages, supporting the Town’s vision of connecting the community to recreational opportunities and the open spaces that make Avon a great place to live. The Town has provided off-street parking on Beaver Creek Point to minimize the impact of the modest increase in traffic the trails access will cause. Every public project will have impacts to specific neighborhoods, but it’s our opinion that the benefits of this trails project, as designed and thoughtfully modified, far outweigh the impacts. Gary and Linn Brooks cc: Virginia Egger From: Lutomirski, Paula [mailto:plutomir@conet.ucla.edu] Sent: Wednesday, July 09, 2014 8:36 AM To: Rich Carroll Cc: O'Leary, Prentice ; Virginia Egger; Matt Pielsticker Subject: O'Leary Concerns: Mayor Rich Carroll Update on Easy Loop Design for July 10th meeting Dear Rich, We are writing to you on a matter of personal concern. Arriving home from a short trip, we found this email and reviewed the flags marking Easy Loop Trail. We are writing to express great distress. The considerations that were made to move the loop away from others have not been taken in regard to our home: 1. The current placement of the trail leading from the Beaver Creek Point parking lot to Easy Loop Trail creates a direct line of sight to our home. It will be obvious to anyone riding/walking down which lights are on and off, who is gardening, whether our cars are in the garage, if there is a package on the porch, etc. This exposure, which is more direct than from the street, is not acceptable. When this route (an immediate left turn from the lot) was suggested (by one person at the first meeting held on the Point), we said we wanted it to turn west further to the north. We thought we had been heard. 2. The easternmost point of the trail (on the southeast arc) is closer to our home than any point on the Loop is to any other home. This needs to be moved to the west. In this new layout, accommodations were made for all other homeowners. Ours is the only home with a direct line of sight to our personal activities. We have been supportive consensus builders throughout this entire process. We ask that you modify the layout to address our concerns. Thank you, Paula and Prentice O’Leary 2060 Beaver Creek Point Avon, CO 81620 Paula O'Leary 310-600-7358 (cell) 970-949-0984 PMB 19105 PO Box 19000 Avon, CO 81620 TOWN COUNCIL REPORT DRAFT FOR DISCUSSION PURPOSES ONLY DRAFT To: Honorable Mayor and Town Council From: Virginia Egger, Town Manager Date: July 7, 2014 Re: WinterWonderGrass – 3 Day Music Festival – February 20-22, 2015 BACKGROUND The Town Council provided first year “seed” funding of $50,000 to WONDERGRASS, LLC, producer Mr. Scotty Stoughton, for the WinterWonderGrass (WWG) Festival in Nottingham Park last February 21-23. An additional $25,000 was allocated for in-kind services for police, bus transportation operations and snow removal. WWG utilized $23,678 of the allotted in-kind services. While no agreement committing the Town to additional funding could be approved, the concept of three-years’ financial and in-kind support to assist WWG in becoming financially profitably and a signature event of the Town of Avon was discussed and the basis for first-year funding. At the time of the WWG request, the Council took two additional actions in regard to supporting events in Avon: • Council passed new legislation for a $2.00 per day/per ticket fee for all ticketed special events to help pay for in-kind services, if needed, purchase equipment and/or build a reserve for the funding of equipment for special events. WWG collected the fee as required. • Council appropriated funds for new tax collection software which can measure individual daily sales and lodging taxes when events occur (MuniRev/Tourism Tracker). 2014 WWG EVENT The three-day February event was a unique, boutique winter music and beer festival, highlighting bluegrass and roots music. Grammy award winning musicians, plus some of the most recognizable names in bluegrass music with well-received “performers on the rise” were contracted with by producer Scotty Stoughton. This exceptional line-up, for its first-year in Avon, attracted ticket sales exceeding the producer’s early estimates. With stage performances ending early each evening, music was moved into Avon’s bars for a successful partnership of park performance in support of restaurateurs and retailors. Paid attendance for the event: Friday – 2,900; Saturday – 3,100; Sunday – 2,800. There were no arrests during the weekend, no citizen complaints and all lodging in Avon sold out. RETURN ON INVESTMENT At the time of first year funding for WWG, Town Council considered the ROI Assumptions Demonstration provided in the following Table 1. The results exemplified the “difficulty” in recouping $50,000 in tax support from an event with a small population of attendees, even under ambitious assumptions. Unfortunately, Muni/Rev and Tourism Tracker were not operational in time to track the daily receipts of WWG sales and  Page 2 lodging tax activity. Monthly gains of February 2014 over February 2013, however, have been added into Table 1, to quantify total lodging taxes and sales taxes for the “most likely commodities expected to be purchased while in Avon by a bluegrass festival attendee”, Groceries, Health and Specialty Foods, Liquor, Sporting Good Retail/Rentals and Restaurant/Bar purchases. While it is not possible to isolate how much of the net increase is attributable to WWG, February 2014 over February 2013 indicates gains just about equal to the taxes estimated in the ROI Assumptions Demonstration in all categories. When compared to January and March 2014-2013 sales for the lodging and the same commodities in Table 1, January saw a net tax increase of $7,142 ($230/day) and March an increase of $54,013 ($1,742/day). TABLE 1 - ROI ASSUMPTIONS DEMONSTRATION - 3,000 PER DAY - 3 DAYS & ACTUAL 2014 RECEIPTS COMMODITY ASSUMPTION CALCULATIONS TOTAL TICKETS PER DAY 3,000 TOTAL PERCENT PURCHASING 2 & 3 DAY PASSES 90% 2,700 LODGING TOTAL % STAYING IN LODGING 40% 1,080 AVERAGE PERSONS PER UNIT 2 540 AVERAGE HOTEL RATE* - 2 nights/per person $229 $247,320 4% ACCOMMODATIONS TAX ESTIMATE $9,892.80 February 2014 over February 2013 ACTUAL $12,710.00 RESTAURANTS/BARS TOTAL MEALS PER DAY AVAILABLE 9,000 TOTAL PERCENT EATING MEALS IN RESTAURANTS 80% 7,200 AVERAGE DAILY MEAL COST $71 divided by 3** $24 $170,400 4% SALES TAX ESTIMATE $6,816.00 February 2014 over February 2013 ACTUAL $87,232.00 GROCERIES/LIQUOR/SPORTING GOODS RETAIL TOTAL PERSONS DAYS FOR THE WEEKEND 9,000 TOTAL % BUYING FOOD, RETAIL 85% 7,650 AVERAGE DAILY PURCHASE AMOUNT $60 $459,000 4% SALES TAX ESTIMATE $18,360.00 February 2014 over February 2013 ACTUAL $14,203.00 TOTAL TAXES ESTIMATE $35,068.80 February 2014 over February 2013 ACTUAL $35,645.00 PER DAY $1,273.04 * mTrips: Avon **Source: cevent Destination Guide: Vail, CO  Page 3 In addition to tax revenue expected from WWG, the producer collected $17,670 in admission fees at $2/day/ticket. If one were to assume all net tax gains for lodging and commodities measured came from WWG plus admission fees, the result would show Avon received $53,315 in new revenue from the event. This is probably not the case, but clearly February 2014 was more successful than one year earlier. The demonstration did indicate that as the event grows over time, it can be expected that revenue in future years can eliminate the need for tax support (Table 2). RETURN ON OBJECTIVES WWG, in its first year in Nottingham Park, exemplified how development of a signature music event, with Town support, can be launched. It is remarkable that the event, in its first year in Nottingham Park, attracted such high daily attendance, and received media attention, with this kind of accolade, “This homegrown festival has earned the right to be in the same ring as the Rocky Grass and Telluride Bluegrass Festivals. The ‘only in Colorado’ element of hosting this event in February, in the mountains, and outdoors only adds to the mystique. Sure I wore long johns each day, but that was a small price to pay for this utterly original experience. I can definitely say I’m already thinking about next year." The event met Avon’s brand with the entrepreneurial producer providing a community and family-minded event that respected and celebrated the natural world, added a cultural amenity in the ski season, and brought new business into Town. In many regards the event set a high bar for Nottingham Park events, including a zero waste ethic, appropriate event size for the infrastructure and Town business capacities, attention to neighborhood quality of life during the event, top tier music and performance art matched with a well-produced setting. Festival Survey results found 73.1% of attendees were from outside of the Vail Valley, with 44.4% staying in vacation rentals. 50.6% stayed 2 or 3 nights, with 93.9% finding that WWG was a great value. 70% of attendees had a bachelor or advanced degrees. 2014 WWG FUNDING AND IN-KIND REQUEST Producer Scotty Stoughton has requested an increase in paid tickets to not exceed 4,800 per day, funding of $50,000 and in-kind support of $25,000. He will be present at the Council meeting. Please see his attached PowerPoint, which he will go through at the meeting. Relying on the same assumptions in the ROI Assumptions Demonstration, Table 2 indicates WWG would generate $50,900 in lodging and sales tax revenue. An estimated $25,500 in admissions would be yielded with an average daily paid ticket count of 4,800 persons per day.  Page 4 TABLE 2 - ROI ASSUMPTIONS DEMONSTRATION - 4,800 PER DAY - 3 DAYS COMMODITY ASSUMPTION CALCULATIONS TOTAL TICKETS PER DAY 4,800 TOTAL PERCENT PURCHASING 2 & 3 DAY PASSES 90% 4,320 TOTAL % STAYING IN LODGING 65% 2,808 AVERAGE PERSONS PER UNIT 2 1,404 AVERAGE HOTEL RATE* - 2 nights/per person $229 $643,032 4% ACCOMMODATIONS TAX $25,721.28 TOTAL MEALS PER DAY AVAILABLE 9,000 TOTAL PERCENT EATING MEALS IN RESTAURANTS 80% 7,200 AVERAGE DAILY MEAL COST $71 divided by 3** $24 $170,400 4% SALES TAX $6,816.00 TOTAL PERSONS DAYS FOR THE WEEKEND 9,000 TOTAL % BUYING FOOD, RETAIL 85% 7,650 AVERAGE DAILY PURCHASE AMOUNT $60 $459,000 4% SALES TAX $18,360.00 TOTAL TAXES $50,897.28 * mTrips: Avon **Source: cevent Destination Guide: Vail, CO STAFF RECOMMENDATION: WWG was a resounding success on any level – the site was well designed and managed, the music was comprised of well-known and lauded musicians with groups at the vanguard of the craft, there were no off-site impacts. In many respects, WWG set the bar and expectations for new events in Nottingham Park in Avon. Revenues for February were up year-over-year and the return on objectives met the Town’s brand. In our view, WinterWonderGrass LLC has earned the opportunity for continuing financial support as a signature event in Avon. The in-kind services requested are logical and can be off-set by a Special Event Ticket Fee. The request of $50,000, however, does not account for the new stage being constructed, which will reduce operational costs; and, new ticket revenue from increasing the attendee limit. We do recognize, however, that this event is not yet fully established, and financial risk-sharing is important in its second year in Avon. The expectation for quality and leading-edge music is the basis, in our view, for funding. The understanding at the time of Year One 2013 budget funding was that “funding will diminish in Years 2 and 3”. Staff, therefore, recommends Council consider a commitment of $40,000 for Year Two support. MOTION: If Council wishes to proceed, a motion should be made and include one of the more of the following: • Approval of event dates: February 2o, 21, 22, 2015 • Approval of in-kind up to $25,000 • Approval of $40,000 in musician support to be paid from the General Fund Special Event Reserve (Balance is $139,000.) • Approval of ticket sales not to exceed 4,800 per day  Page 5 • Approval of the Town Manager to sign an agreement for production, including but not limited to all planning and producer performance dates, insurance, indemnification, deposits, marketing plan, security and law enforcement plan, demographic data collection and other metrics as may be determined, and reporting requirements TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Virginia Egger, Town Manager Date: July 11, 2014 Re: Notice of Bids for Avon Road, Pedestrian Mall, Post Blvd and Funding Options Four major projects are before Council for funding decisions at Tuesday’s meeting. Three projects – the Pedestrian Mall, Avon Road Improvements and Post Boulevard Landscape Improvements have been designed, bid and negotiated for contractor awards. All three of the projects, have come in considerably over the architect’s bid estimate, provided in May of this year, and, therefore, are over budgeted amounts in the Capital Projects Fund. Since receiving the bids, staff has reviewed the projects in detail and negotiated with the respective contractors’ on project costs. These negotiations, in our view, have resulted in better projects at reduced costs through changing some sub-contractors, reducing over-engineered features, being more discerning in amounts and types of vegetation and in utilizing town staff, where available, for traffic management. The following table summarizes the progression of the projects. CAPITAL PROJECTS - BID & TOTAL PROJECT COSTS AVON ROAD, PEDESTRIAN MALL & POST BOULEVARD Capital Project Current Budget Construction Bid Negotiated Contract Amount Recommendation Total Project Design & Construction Avon Road Streetscape $300,000 $1,252,092 $718,167 $825,000 Pedestrian Mall $1,900,000 $1,866,709 $1,469,356 $1,900,000 Post Boulevard Landscape Improvements $331,000 $497,335 $280,000 $331,000 $2,531,000 $3,616,136 $2,467,523 $3,056,000 At current negotiations, the funding shortfall for these projects is $525,000 ($3,056,000 – 2,531,000). NOTTINGHAM PARK PAVILION (STAGE) With architectural and structural design work progressing, another project, the Nottingham Pavilion (Stage) is now projected to cost significantly more than in the current 2014 budget. Monies planned of $930,000 are now expected to be more likely in the range for construction of $1, 500,00o to $1,700,000 for construction, for a project total with design and contract management fee added of $1,900,000. FUNDING OPTIONS The following table provides three options for setting capital project priorities. The most successful option, from the standpoint of moving forward with all projects, is the financing of the Nottingham Park Pavilion (Stage) with Certificates of Participation (Option 1). Attachments A & B describe the use of COP money and  Page 2 terms. Option 2 delays the stage, due to increased cost, allowing Capital Project Funds to accumulate for this major expenditure as a pay-as-you-go project. Support for this option would allow greater time for design, including pre-construction contractor assistance. The project could be constructed in 2015, with other projects, including the playground ($700,000) being lowered in priority and allowed time to seek grants. Option 3 sets the Nottingham Park Pavilion (Stage) as the most important project for 2014, and finds the extra funding through the delay or phasing of the other three projects discussed above. CAPITAL PROJECTS FUNDING OPTIONS Option 1 Option 2 Option 3 PROJECT Finance Stage Construct all 2014 Capital Projects Delay Stage Construct all other Capital Projects Construct Stage with Cash Delay or Phase other Projects Notes Current Supplemental Budget #2, Ending Fund Balance $ 1,068,745 $ 1,068,745 $ 1,068,745 Allow Ending Fund Balance to $950K level as most capital projects are completed for the year (see below) Revenue Changes: - Bond Proceeds 2,050,000 - - One Year Call so bonds could be paid off - Reduction of Community Enhancement Funds (508,000) (508,000) - If stage is funded with CIP's or not built this year, transfer funds into 2015) - Reduction of Water Fund Transfers (100,000) - (100,000) Utilize Water Fund money for irrigation systems on Mall & Avon road Expenditure Changes: - Bond Issuance Costs (50,000) - - See Attachments A & B - Nottingham Park Pavilion (Stage) (1,000,000) 730,000 (1,000,000) Current budget $930,000; Estimated Cost $1,930,000 in this set of options - Avon Road Landscape Increase (525,000) (500,000) 100,000 Option 3 - Roundabouts only & some entry - Post Boulevard - - 331,000 Monies from .75% add-on; delay in Option 3 - Avon Mall Improvements - 50,000 441,000 Option 3 - Delay Walkway West of Wyndham - Delay Pumphouse Pump Replacement 100,000 100,000 100,000 - 2014 Debt Service on Pavilion Financing (21,126) - - Revised Ending Fund Balance $ 1,014,619 $ 940,745 $ 940,745  Page 3 Staff Recommendation: Staff recommends Option 1 for the following reasons: • In working on the financing options, it becomes clear that major project funding on a pay-as-you-go basis cannot be funded in a timely manner at current RETT collection rates. • The Pavilion is expected to have a useful life of 15 – 20 years. These types of expenditures are appropriate of debt financing. • Interest rates remain highly favorable for debt issue. • In working with contractors on the projects, all indicated that costs are expected to keep rising in the next year due to supply demand and an improving economy. No contractor believed delaying the projects will yield better prices in a year. • All the projects identified this year for improvement are economic development investments and envisioned as important infrastructure for the changes now proceeding in Avon, including East Avon redevelopment, special event production and attraction, and critical elements for the Creative Art District. The opportunity of having the projects completed prior to the 2015 AWSC, is thought to have value.  Page 1 ATTACHMENT A TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Scott Wright, Asst. Town Manager P. Jonathan Heroux, Managing Director, Piper Jaffrey Date: July 10, 2014 Re: Nottingham Park Stage Financing and CIP Long-range Plan This memo is intended to inform the Town Council as to its options regarding how to finance the construction of the Nottingham Park Stage and the impacts to the Capital Projects Fund. The Town has 4 options absent the desire to go to the voters to ask for a debt authorization: • Option 1 – Certificates of Participation • Option 2 – Delay construction • Option 3 – Reduce or eliminate other projects • Option 4 – Finance with operating transfers from other Town funds Option 1: COPs COPs are not deemed to be debt under Tabor, but rather are considered annual appropriations where the issuer has the choice to not appropriate in the future. The result of not appropriating is the loss of the asset pledged as collateral for a specific financing. In general, issuers pledge the asset being financed as the collateral. In other situations an unrelated asset may be pledged that is deemed to be “essential” to the issuer. In general this collateral pledged needs to have a value similar to the total cost of the financing. • Pros: – Frequently used form of financing – Market acceptance of COPs – Town’s past experience with form of financing – Quickly access capital markets – Ability to non-appropriation of future debt • Cons: – Assets (with essentiality to the issuer) needs to be pledged as collateral – Potential loss of asset if non-appropriation  Page 2 Option 2: Delay construction If financing cannot be secured or Council is not interested in incurring debt for this project, the next option would be to delay construction on the Stage until such time that additional funds can be secured for the cost of construction. This would allow other projects planned in the 2014 Capital Projects Fund, which are designed and bid to go forward without having to either eliminate or drastically reduce the scale of such projects. Option 3: Reduce or eliminate other projects If neither of the first two options are viable the next option would be to reduce and/or eliminate current projects that are scheduled to being in 2014. The total amount of reductions necessary is approximately $1.5 million. Projects on the list could include one or more of the following: the 2014 Avon Road Streetscape Update, the 2014 Mall Improvements project, annual paving and road improvements, Post Blvd. Landscaping Improvements, and the Recreation Center Water Slide replacement and restroom remodel. Option 4: Operating transfers from other Town funds Options 3 and 4 are similar in that approximately $1.3 million in resources are required to maintain the current schedule of capital projects. Option 4 requires that a portion of this amount be transferred from other funds of the Town. In the most recent supplemental budget for the Capital Projects Fund, an operating transfer from the General Fund in the amount of $700,000 was included. This leaves the General Fund with only $615,828 in discretionary fund balances over the 25% minimum reserve requirement. These discretionary funds are intended to be used to help smooth out budgetary fluctuations in operating budgets, assist with implementing new programs, such as the Town’s economic development program, new special events, and the Town’s pay step program. In addition, the Town will be preparing a biennial budget, which may require the use of discretionary funds in the second year if revenue estimates do not pan out. The Town has had strong, above budget collections through May for the current fiscal year for sales and accommodation taxes as well as RETT. While we are entering the strong seasonal months for these types of revenues, use of these funds should be considered only to fill a gap of some conservative amount for the capital projects. Strong year-end surpluses in these revenues, with an adopted 2015 budget could yield monies for capital projects in the future, but at this time it is premature to forecast with any certainty. Recommendation It is staff’s recommendation, along with Piper Jaffrey, that the Town could finance the Nottingham Park Stage with COPs this calendar year. The current interest rate market is favorable (relatively low interest rates), and the Town’s current credit rating on its other COP issue is very good. In addition, the attached Draft Timetable indicates that the financing could be accomplished within a 6-week timeframe. The Town would probably use the current Town Hall as collateral for the debt, but would have call provisions available should a new Town Hall be purchased or constructed and the old Town  Page 3 Hall need to be demolished. Based on preliminary information, current market interest rates would approximate a 3% coupon rate with annual debt service ranging from $176,750 to 241,500 depending on the term. Attachment B provides a Draft Timetable – Fixed Rate Bank Loan Placement, Series 2014, for a proposed issue. *Subject to Change Attachment B 1,700,000* Town of Avon, Colorado Fixed Rate Bank Loan Placement, Series 2014 Draft Timetable of Events As of July 2014 JULY 2014 AUGUST 2014 SEPTEMBER 2014 S M T W T F S S M T W T F S S M T W T F S 1 2 3 4 5 1 2 1 2 3 4 5 6 6 7 8 9 10 11 12 3 4 5 6 7 8 9 7 8 9 10 11 12 13 13 14 15 16 17 18 19 10 11 12 13 14 15 16 14 15 16 17 18 19 20 20 21 22 23 24 25 26 17 18 19 20 21 22 23 21 22 23 24 25 26 27 27 28 29 30 31 24 25 26 27 28 29 30 28 29 30 31 31 DATE EVENT RESPONSIBLE PARTY 7/15/14 Town Decision on Proceeding with the Project A 7/16/14 Create Term Sheet on Transaction A, PA 7/22/14 Town Directs PA to Begin Soliciting Interest in Transaction A 7/23/14 Term Sheet Distributed to Potential Investors PA 8/1/14 Receive Feedback and Level of Interest PA 8/6/14 Lender Selected A, PA 8/13/14 First Draft of Documents Distributed to Working Group and Lender A, BC 8/15/14 Conference Call to Review Comments on Legal Documents All 8/20/14 Revised Legal Documents Re-Distributed to Working Group and Investor BC 8/26/14 First Reading of Resolution A 8/27/14 Pre-Closing All 8/28/14 Closing and Delivery of Proceeds All A = Town of Avon BC = Bond Counsel (Butler Snow) PA = Placement Agent (Piper Jaffray) TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, Town Engineer Date: July 9, 2014 Agenda Topic: Notice of Award for Avon Road Streetscape Project to R.A. Nelson The Avon Road streetscape has not been updated since the construction of the roundabouts in 1998 and is need of attention. The current scope for the Avon Road Streetscape Project is to update Avon Road by replacing the median landscaping with native bushes and flowers, landscaping roundabouts 1 and 2 to present a new vision at Avon’s front door, replacing the irrigation system with newer, more efficient fixtures, installing a variable message board near Walgreens, improving the monument sign in roundabout 3, and painting the light poles and street furnishings olive green. Discussion The project was advertised for bid on May 1st, 8th and 15th in the Vail Daily and was posted on the Town’s website starting May 1st, 2014. The pre-bid meeting was held on May 29th and the bid opening was on June 5th, 2014. No bids were received so the project was modified by separating it from the Mall Improvement Project and then re-advertised in the Denver Post and Grand Junction Sentential. Also the bid opening was extended to June 26, 2014 and only one bid was submitted by RA Nelson for $1,252,092.41 which is significantly higher than the project budget of $300,000. Since the bid opening, Staff has met with R.A. Nelson several times to reduce the project cost. The project cost has been reduced to $718,167, and still achieves the projects goals. The entire project budget, including consultant fees and expenses for some tasks Avon Staff will self-perform, will need to be $825,000 in order to complete the project. If Town Council would like to move forward with the project, Town Council will have to direct Staff to revise project budget in the next Capital Improvement Program budget amendment to $825,000. RECOMMENDED MOTION: Staff requests Council authorization to award the Avon Road Streetscape Project, to R.A. Nelson in the amount of $ 718,167. The notice allows the Town Manager or designee to sign the contractor’s agreement, subject to Town Attorney review. TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, Town Engineer Date: July 10, 2014 Agenda Topic: Notice of Award for Mall Improvement Project to Evans Chaffee Construction Group The major goals of the Mall Improvement Project is to energize the West Town Center neighborhood by creative place-making with streetscape and landscape elements and creating new spaces within the mall for special events, children and family games and activities. Special consideration is given to incorporation of existing West Town Center urban design and streetscape elements. Also, the landscape and identity ideas coincide with the Avon Road Streetscape project to achieve a consistent and cohesive image and strong sense of place for the entire Town Center of Avon. Discussion The project was advertised for bid on May 1st, 8th and 15th in the Vail Daily and was posted on the Town’s website starting May 1st, 2014. The pre-bid meeting was held on May 29th and the bid opening was on June 5th, 2014. No bids were received so the project was modified by separating it from the Avon Road Streetscape Improvement Project and then re-advertised in the Denver Post and Grand Junction Sentential. The bid opening was extended to June 26, 2014 and the following three bids were submitted. 2014 Mall Improvement Project Bids Contractor Amount Evans Chaffee Construction Group $ 1,866,708.88 R.A. Nelson $ 2,179,772.89 Ewing Trucking and Construction $ 2,113,528.69 The project budget is $ 1,900,000 and after taking into account design fees ($300,000) and the children play feature which is being procured separately ($120,000) there is $1,480,000 remaining for construction. After the bid opening, Staff initiated negotiations with the Evans Chaffee Construction Group (ECCG) to bring the project within the budget. The project has been negotiated down to $1,469,356.33, of which approximately $35,000 will be reimbursed by the Wyndham development. This leaves $45,643.67 or 3% for a project contingency which is a small contingency for a project of this complexity. RECOMMENDED MOTION: Staff requests Council authorization to award the Mall Improvement Project, to Evans Chaffee Construction Group in the amount of $ 1,469,356.33. The notice allows the Town Manager or designee to sign the contractor’s agreement, subject to Town Attorney review. TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, Town Engineer Date: July 9, 2014 Agenda Topic: Notice of Award for Post Boulevard Landscaping Improvements to Clark and Company Town of Avon began receiving a 0.75% Public Improvement Fee (PIF) on November 1, 2013, on retail sales in the Village (at Avon). A total of $317,000 has been collected through April, 2014, yielding a monthly average of $52,000 (rounded). The PIF, through lawsuit settlement negotiations, provides funding for operation and maintenance costs for services provided by the Town in the Village, as well as maintenance funds for the roadway and landscaping of Post Boulevard and other right-of-ways in the Traer Creek Metro District (TCMD). These improvements will be transferred into Town ownership once settlement is implemented. In anticipation of Post Blvd. being transferred to the Town, a refurbishment program was developed and bid out for installation this year. Also, the landscaping for the Avon Regional Transportation Facility (ARTF) was included with the project to gain economies of scale. Description of Design Pedro Campos, Zehren and Associates, was retained to design the landscaping refurbishment program. Pedro completed the original landscaping design for TCMD in 2003, and therefore is knowledgeable of the improvements as constructed and the TCMD design guidelines that govern the areas. The original 2003 Post Boulevard landscape design is being used as basis for the landscape improvements with appropriate plant substitutions and alternate design treatments where necessary. Key goals of the design are to create a regionally appropriate landscape that is attractive while reducing the overall consumption of water, energy and resources for operation, upkeep and maintenance. The plans calls for cleaning up the existing landscaping, re-using the cobble ground cover, and using ornamental grasses and drought tolerant trees, shrubs, and perennials to match the new landscape installation on Avon Road. Discussion The project was advertised for bid on June 16th, 17th and 18th and was posted on the Town’s website starting on June 13, 2014. The pre-bid meeting was held on June 19th and the bid opening was on July 2, 2014. Bids were received from Clark and Company and Neils-Lunceford for $497,334.87 and $691,229 respectively. Town Council appropriated $331,000 for the Post Blvd Landscaping Project which also includes design fees and painting the railings on Yoder Ave and Post Blvd. As a result $280,000 is available for the Post Blvd Landscaping installation after taking into account these two items. The low bid by Clark and Company for Post Blvd Landscaping portion of the project was $460,756 which is $180,756 over budget.  Page 2 Staff negotiated with Clark & Co. to remove several non-essential items to bring the project within budget including not replacing the entire irrigation system, keeping the living Aspen trees and only replacing dead Aspen trees on Post Blvd., and not removing and replacing the topsoil. The proposed scope will bring Post Blvd up to the standard it was originally intended. Clark and Co. has not fully accessed the condition of the irrigation system on Post Blvd so there is the risk that the cost to repair the irrigation system may increase. If the cost of the irrigation repairs increase, the landscape component may have to be modified or phased to keep the project within the $280,000 budget. $56,760 is budgeted for landscaping in the ARTF project budget and the bid came in at $36,576 so is $20,184 below budget. RECOMMENDED MOTION: Staff requests Council authorization to award the Post Blvd Landscaping Improvements, including ARTF landscaping, to Clark & Company in the amount of $316,576. The notice allows the Town Manager or designee to sign the contractor’s agreement, subject to Town Attorney review. TOWN COUNCIL REPORT T o: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, P.E., Town Engineer Date: July 9, 2014 Re: Ordinance 14-12 Deed of Easement for a Parcel of Land, Located at Lot 2, Riverside and Lot 1, Eagle River at Avon, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail SUMMARY: Vail Corp. owns the property at the corner of US 6 and Avon Road, commonly referred to as the Red House, and is adjacent to Phases 1, 2 and 3 of the Eagle Valley Trail (EVT). Phase 1 Extends from Hurd Lane over the Eagle River to US 6, Phase 2 extends from US 6 over Beaver Creek and phase 3 extends from Beaver Creek to the driveway of Eaglebend Housing Corp. These phases along with a future phase 4 will complete the EVT through the mid-valley region from Eagle-Vail to Edwards. Phases 2 and 3 of the EVT will encroach onto property owned by the Vail Corp. which has agreed to donate an easement for the construction the trail. Construction is tentatively scheduled for this fall for phase 2 and 2015 for phase 3. Phase 3 is partially funded with a Colorado of Transportation grant in the amount of $653,000 and as a result the Town complied with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act and all relevant regulations promulgated thereto, and Colorado Revised Statues 24-56-101 through 121 when acquiring the easement. RECOMMENDED MOTION: Staff requests Council approve the Ordinance 14-12, Deed of Easement for a Parcel of Land, located at Lot 2, Riverside, and Lot 1, Eagle River at Avon, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail. Attachment A Ordinance 14-12 Deed of Easement for a Parcel of Land, Located at Lot 2, Riverside, and Lot 1, Eagle River at Avon, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail. Ord. No 14-12 Accepting Easement for Eagle Valley Trail from Vail June 15, 2014 Page 1 of 3 TOWN OF AVON ORDINANCE 14-12 SERIES of 2014 AN ORDINANCE APPROVING THE DEED OF EASEMENT FOR A PARCEL OF LAND, LOCATED AT LOT 2, RIVERSIDE AND LOT 1 EAGLE RIVER AT AVON, TOWN OF AVON, COLORADO FOR THE PURPOSE OF CONSTRUCTING THE EAGLE VALLEY TRAIL WHEREAS, the Town Council has previously directed, authorized, and budgeted for acquisition of easements required for the Eagle Valley Trail; WHEREAS, Section 2.1 of the Avon Home Rule Charter provides that the Town Council may acquire real property interests and Colorado Revised Statutes section 31-15-101(1)(d) provides that municipalities may acquire and hold real property; WHEREAS, the Town Council finds that acquisition of this Deed of Easement from The Vail Corporation complies with and implements the Avon Comprehensive Plan, including Goal G. Parks, Recreation and Open Space, Goal G1 “Provide an exceptional system of . . . trails . . to serve the year-round leisure-time needs of area residents and visitors . . . ;” Policy G1.2 “The Town will continue to evaluate and acquire . . . easements for . . . trails and recreation . . . ;” Policy G1.3 “The Town’s recreational trail system will integrate with the regional trail system . . . ;”; and, Policy G1.5 “The Town will coordinate with Eagle County . . . . in providing access and linkage opportunities . . . ;” WHEREAS, the Town Council finds that acquisition of the Deed of Easement attached hereto shall promote the health, safety and general welfare of the Avon community by allowing improvements to the Eagle Valley Trail that enhance bicycle and pedestrian safety; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Deed of Easement Approved. The attached Deed of Easement for a Parcel of land located at Lot 2, Riverside and Lot 1, Eagle River at Avon, Town of Avon, Eagle County, Colorado, is hereby approved and accepted. Ord. No 14-12 Accepting Easement for Eagle Valley Trail from Vail June 15, 2014 Page 2 of 3 Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents related to all documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance, including but not limited to designating the order of recording of such documents and executing other necessary and customary documents at closing which have been reviewed and approved by the Town Attorney. The Mayor, Town Clerk and Town Attorney may collectively review and approve the completion of documents, correction of typos, grammatical errors, cross-reference errors, and revisions which do not alter the substantive terms of any of the documents approved in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14-12 Accepting Easement for Eagle Valley Trail from Vail June 15, 2014 Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for July 22, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on July 15, 2014. ____________________________ Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on July 22, 2014. ____________________________ Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: _______________________________ Debbie Hoppe, Town Clerk 1 DEED OF EASEMENT THIS DEED OF EASEMENT (this “Agreement”) is made this _____ day of _______, 20___ between THE VAIL CORPORATION, a Colorado corporation (“Vail”), whose address is 390 Interlocken Crescent, Broomfield, Colorado 80021 and the TOWN OF AVON, a Colorado home rule municipal corporation (“Town”), whose address is P.O. Box 975, Avon, Colorado 81620. RECITALS A. Vail is the owner of certain real property located within the Town of Avon, Eagle County, Colorado, identified as Lot 1, Eagle River at Avon and Lot 2 Riversidelocated on the southeast corner of Highway 6 and Avon Road (the “Vail Property”). B. Town desires to construct public recreation path improvements to the Eagle River Trail, located along the perimeter of the Vail Property, as generally shown on Exhibit A, attached hereto and made part hereof, including all underground, surface and streetscape appurtenances (the “Improvements”). C. Town requests and the Vail agrees to enter into an easement agreement on the Vail Property, subject to and based upon the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Vail and the Town hereby acknowledge and agree as follows: 1. Grant. Vail hereby grants and conveys to the Town a non-exclusive perpetual easement (“Easement”) to install, operate, maintain, repair, reconstruct, replace, inspect and remove, at any time and from time to time, the Improvements, together with access to and over a portion of the Vail Property shown on Exhibit A (the “Easement Area”) for the purpose of Town providing a recreation path accessible by the general public. 2. Limitations and Reservation of Rights. Vail reserves the right to use the Easement Area for purposes which will not materially interfere with Town’s full enjoyment of the rights in this Agreement, including, but are not necessarily limited to, the following: (a) Vail shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level in the Easement Area without obtaining the specific written permission of the Town, which permission shall not be unreasonably withheld, delayed or conditioned; (b) Vail shall take no action which would permanently impair or in any way permanently modify the surface of, or the lateral or subjacent support for, the aforementioned improvements and appurtenances within the Easement Area without obtaining the specific 2 written permission of the Town, which permission shall not be unreasonably withheld, delayed or conditioned. (c) Notwithstanding the foregoing, Vail reserves the right to place utilities and/or to construct improvements within the Easement Area not inconsistent with the use of the Easement and Vail agrees at its own expense to restore the Easement Area to its prior condition in the event of the disturbance of the Easement Area. Further, Town hereby grants to Vail the same rights, upon the same conditions, as are contained herein, on other portions of the recreation path not on Vail’s property provided Vail obtains and provides to Town the written permission of the Vail of the property involved. (d) Vail further reserves the right to temporarily or permanently relocate the Easement to a new location reasonably acceptable to the Town in association with the improvement of the Vail Property. Any such relocation shall be at the expense of Vail and shall include replacement of the Improvements with improvements of similar condition and quality. Any interruption of use of the Easement by the public shall be kept to a minimum. (e) The Town covenants that neither it nor its employees, agents, contractors or representatives shall dispose of, generate, manufacture, release or store environmentally hazardous substances on or about the Easement Area. Vail disclaims any responsibility for any environmental impact on or adjacent to the Easement Area arising from the construction and use of the Easement. (f) Nothing herein shall preclude or limit the Vail’s ability to construct improvements on the Vail Property, including, but not limited to, temporary closures of the Improvements during construction, if necessary, and access to or from the Vail Property. 3. Liability. Vail shall not be liable for any loss, injury, death or damage to any person or personal property which may arise from the use or condition of the recreation path including, but not limited to loss, injury, death or damages resulting from ice, water, rain, snow, gas, electrical wires, fire or theft. 4. Indemnification. To the extent permitted by law, Town agrees to indemnify, defend and hold harmless Vail, its designees, agents, employees, officers, directors, shareholders, successors and assigns, the Easement and the Vail Property (including, without limitation, claims made directly by the Town) from and against any and all claims, causes of action, costs, damages, expenses and liabilities (including, without limitation, reasonable legal fees) arising from or related to use of the Easement, and/or the Vail Property by (i) the Town, its designees, agents, employees, officers, directors, shareholders, successors and assigns, (ii) the general public or (iii) by any person acting through or on behalf of the Town (collectively, the “Town Permittees”), arising from or related to any negligent acts or omissions, intentional misconduct and any mechanic's or materialmen's liens caused or permitted by the Town or the Town Permittees in connection with the Easement and/or the Vail Property or otherwise arising under this Agreement, except those caused by the willful misconduct or gross negligence of Vail or its designees, agents, employees, officers, directors, shareholders, successors or assigns. 3 5. Mechanic’s Liens. The Town, its employees, agents, contractors and representatives, shall be prohibited from taking any action or omission that subjects the Easement area to liens of any kind, including, but not limited to, construction, mechanic’s or materialmen’s liens (collectively, “Liens”). In the event the Easement area or the balance of Vail’s property becomes subject to any such Liens directly or indirectly through the action or inaction of the Town, its employees, agents, contractors, or representatives, the Town shall discharge and bond off any such Liens within five (5) days of the imposition of any such Liens, and the failure to do so shall permit Vail to pursue all of its rights and remedies under this Agreement, at law, or equity. 6. Statutory Basis. The parties agree that this Agreement is entered into in accordance with the provisions of Colorado Revised Statutes §§ 33-41-101 et. Seq.. 7. Insurance. The Town agrees to cause Vail to be an additional insured on its commercial general liability insurance for bodily injuries or death of persons or property damage occurring in or about the Easement granted to it pursuant to this Agreement. All such insurance shall (a) generally cover the liability and indemnity obligations assumed by the Town under this Agreement; (b) be primary and noncontributing with any insurance which may be carried by the other party; and (c) provide that said insurance shall not be cancelled or coverage changed unless thirty (30) days' prior written notice shall have been given to Vail. The Town shall furnish Vail with a certificate or certificates evidencing that the required insurance policies are in full force upon written request. 8. Commencement of Construction. In the event that the Town does not commence construction on the Improvements by July 1, 2015, this Agreement shall automatically terminate and be null and void. In such event, the Town shall, at its sole cost and expense, prepare and execute such reasonable documentation that Vail deems necessary or appropriate to effect such reversion in a form and content acceptable to Vail which document shall thereafter be recorded in the real property records of Eagle County, Colorado. 9. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by certified mail, return receipt requested, postage prepaid. Any such notice or other communication shall be effective when such notice is delivered to the addresses set forth below: If to Vail: The Vail Corporation Attn: Director of Land Development 137 Benchmark Road P.O. 959 Avon, Colorado 81620 Email: bkennedy@vailresorts.com With a copy to: The Vail Corporation 4 Attn: Real Estate Counsel 390 Interlocken Crescent Mailstop I-88 Broomfield, Colorado 80021 Email: legalnotices@vailresorts.com If to Avon: The Town of Avon Attn: Virginia Egger Town Manager P.O. Box 975 Avon, CO 81620 Telephone: 970-748-4452 Email: vegger@avon.org With a copy to: Eric J. Heil, Esq., A.I.C.P. P.O. Box 975 Avon, CO 81620 Telephone: 303-975-6120 Email: eheil@avon.org 10. Miscellaneous. (a) Amendment. Modification. No provision or term of this Agreement may be amended, modified, revoked, supplemented, waived, or otherwise changed except by a written instrument duly executed by the parties hereto. (b) Entire Agreement. This Agreement constitutes and incorporates the entire agreement among the parties hereto concerning the subject matter of this Agreement and supersedes any prior agreements concerning the subject matter hereof. (c) Severability. If any provision of this Agreement shall be held invalid, illegal, or unenforceable in any jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be impaired thereby; nor shall the validity, legality, or enforceability of any such defective provisions be in any way affected or impaired in any other jurisdiction (d) Assignment. This Agreement is not assignable by the Town without the prior written approval of Vail. (e) Third-Party Beneficiaries. Except as provided herein, the agreements contained herein are solely for the benefit of the parties hereto and no other person or entity shall be a third party beneficiary thereof. 5 (f) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. (g) Authorization. Each party is authorized and empowered to execute this Agreement and all necessary corporate action has been taken to authorize execution of this Agreement. (h) Execution. The parties shall execute and deliver such further documents as may be reasonably required in order to effectuate the intent of this Agreement. (i) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to constitute an original; provided, however, that this Agreement will not become binding upon any party unless and until executed (whether or not in counterpart) by all the parties. (j) Recording. This Agreement shall be recorded with the Clerk and Recorder for the County of Eagle, State of Colorado. (k) Run with the Land; Successors and Assigns. The terms and provisions of this Agreement shall run with the Vail Property and title to the Vail Property and be binding upon and inure to the benefit of the successors and assigns of Vail. Subject to the provisions of contained herein, the terms and provisions of this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Town. (l) Exhibits. All exhibits attached to this Agreement are incorporated herein by this reference and made a part hereof. (m) Provisions Incorporated in Deeds. Each provision contained in this Agreement shall be deemed incorporated in each deed or other instrument by which any right, title or interest in any of the Vail Property is granted, devised or conveyed, whether or not set forth or referred to in such deed or other instrument. [Remainder of page intentionally left blank] [Signatures on following pages] 6 IN WITNESS WHEREOF, the parties hereto have executed this Agreement to become effective as of the date first written above. VAIL: THE VAIL CORPORATION, a Colorado corporation By: ____________________________ Name: Alex Iskenderian Title: Senior Vice President & COO - VRDC STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ________ day of ______________, 20___, by Alex Iskenderian as Senior Vice President & COO - VRDC of The Vail Corporation, a Colorado corporation. My commission expires:___________________ Witness my hand and official seal. _________________________ Notary Public [Town signature on following page] 7 TOWN: TOWN OF AVON By:_____________________________ Rich Carroll, Mayor ATTEST: ________________________ Debbie Hoppe, Town Clerk STATE OF COLORADO } } ss. COUNTY OF EAGLE } The foregoing document was subscribed and sworn to before me this ________ day of ______, 20___, by Rich Carroll as Mayor and Debbie Hoppe as Town Clerk of the Town of Avon. Witness my hand and seal. My commission expires:_____________ _________________________ Notary Public [End of signatures] EXHIBIT A TOWN COUNCIL REPORT T o: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, P.E., Town Engineer Date: July 7, 2014 Re: Ordinance 14-11 Deed of Easement for a Parcel of Land, PE-1 and PE-2, Located at Lot 1, Riverside, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail SUMMARY: Eaglebend Housing Corp. owns the property on the north side US 6, which is adjacent to Phases 3 and 4 of Eagle Valley Trail (EVT) proposed to be constructed next year. Phase 3 extends from Beaver Creek to the driveway of Eaglebend Housing Corp. and Phase 4 extends from the driveway to Stonebridge Dr., the current terminus of the EVT. These two phases will complete the EVT through the mid-valley region from Eagle-Vail to Edwards. The EVT will encroach onto property owned by the Eaglebend Housing Corp. in two locations to accommodate the trail, a storm sewer extension and fill to support the trail. The Eaglebend Housing Corp. has agreed to donate an easement for the construction of phases 3 and 4 of the Eagle Valley trail tentatively scheduled to be constructed in 2015. This section of the EVT is partially funded with a Colorado of Transportation grant in the amount of $653,000 and as a result acquiring these easements has followed the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act and all relevant regulations promulgated thereto, and Colorado Revised Statues 24-56-101 through 121. RECOMMENDED MOTION: Staff requests Council approve the Ordinance 14-11, Deed of Easement for a Parcel of Land, PE-1 and PE-2, located at Lot 1, Riverside, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail. Attachment A Ordinance 14-11 Deed of Easement for a Parcel of Land, PE-1 and PE-2, Located at Lot 1, Riverside, Town of Avon, Colorado for the Purpose of Constructing the Eagle Valley Trail Ord. No 14-11 Accepting Easement for Eagle Bend Trail June 15, 2014 Page 1 of 3 TOWN OF AVON ORDINANCE 14-11 SERIES of 2014 AN ORDINANCE APPROVING THE DEED OF EASEMENT FOR A PARCEL OF LAND, PE-1 AND PE-2, LOCATED AT LOT 1, RIVERSIDE, TOWN OF AVON, COLORADO FOR THE PURPOSE OF CONSTRUCTING THE EAGLE VALLEY TRAIL WHEREAS, the Town Council has previously directed, authorized, and budgeted for acquisition of easements required for the Eagle Valley Trail; WHEREAS, Section 2.1 of the Avon Home Rule Charter provides that the Town Council may acquire real property interests and Colorado Revised Statutes section 31-15-101(1)(d) provides that municipalities may acquire and hold real property; WHEREAS, the Town Council finds that acquisition of this Deed of Easement from the Eagle Bend Affordable Housing Corporation complies with and implements the Avon Comprehensive Plan, including Goal G. Parks, Recreation and Open Space, Goal G1 “Provide an exceptional system of . . . trails . . to serve the year-round leisure-time needs of area residents and visitors . . . ;” Policy G1.2 “The Town will continue to evaluate and acquire . . . easements for . . . trails and recreation . . . ;” Policy G1.3 “The Town’s recreational trail system will integrate with the regional trail system . . . ;”; and, Policy G1.5 “The Town will coordinate with Eagle County . . . . in providing access and linkage opportunities . . . ;” WHEREAS, the Town Council finds that acquisition of the Deed of Easement attached hereto shall promote the health, safety and general welfare of the Avon community by allowing improvements to the Eagle Valley Trail that enhance bicycle and pedestrian safety; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Deed of Easement Approved. The attached Deed of Easement for a Parcel of land, PE-1 and PE-2, located at Lot 1, Riverside, Town of Avon, Eagle County, Colorado, is hereby approved and accepted. Ord. No 14-11 Accepting Easement for Eagle Bend Trail June 15, 2014 Page 2 of 3 Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents related to all documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance, including but not limited to designating the order of recording of such documents and executing other necessary and customary documents at closing which have been reviewed and approved by the Town Attorney. The Mayor, Town Clerk and Town Attorney may collectively review and approve the completion of documents, correction of typos, grammatical errors, cross-reference errors, and revisions which do not alter the substantive terms of any of the documents approved in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14-11 Accepting Easement for Eagle Bend Trail June 15, 2014 Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for July 22, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on July 15, 2014. ____________________________ Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on July 22, 2014. ____________________________ Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: _______________________________ Debbie Hoppe, Town Clerk ATTACHMENT A 1 DEED OF EASEMENT THIS DEED OF EASEMENT (“Easement Deed”) is made this _____ day of _______, 2013 between EAGLEBEND AFFORDABLE HOUSING CORP., a Colorado Corporation (“Owner”), whose address is ____________________, Colorado __________ and the Town of Avon, a Colorado home rule municipal corporation (“Town”), whose address is P.O. Box 975, Avon, Colorado 81620. WITNESSETH: 1. That for and in consideration of the covenants and agreements herein set forth, the sum of Ten Dollars ($10.00), and other good and valuable consideration in hand paid by the Town to the Owner, the receipt and adequacy of which is hereby acknowledged, the Owner hereby grants, sells and conveys to the Town, its successors and assigns, an exclusive perpetual easement and right-of-way (“Easement”) to install, operate, maintain, repair, reconstruct, replace, inspect and remove, at any time and from time to time, Eagle Valley Trail improvements, including all underground, surface and streetscape appurtenances thereto, and to improve and maintain a suitable slope or grade, together with a right-of-way for access on, along, and in all of the hereinafter described Easement across those certain lands which are situate in the Town of Avon, County of Eagle, State of Colorado, such lands and easement area being described more fully on as PE-1 and PE-2 in EXHIBIT A attached hereto and by this reference made a part hereof. 2. The Owner further grants to the Town: (a) The right from time to time to enlarge, improve, reconstruct, relocate and replace any improvements, slopes and grades, or other structures constructed hereunder with any other number or type of utility facilities, slopes and grades, or other structures either in the original location or at any alternate location or locations within the Easement; provided that such enlargement, improvement, reconstruction, relocation and replacement as aforesaid shall not interfere with any reasonable use Owner shall make of the Easement. (b) the right to mark the location of the Easement by suitable markers set in the ground; provided that permanent markers shall be placed in locations which will not interfere with any reasonable use Owner shall make of the Easement. 3. Owner reserves the right to use the Easement area for purposes which will not interfere with Town’s full enjoyment of the rights hereby granted upon written request to the Town. The parties further agree that the Owner’s use of the Easement area shall be subject to the following restrictions and conditions: ATTACHMENT A 2 (a) Owner shall not erect or construct any building or other structure, or drill or operate any well, or construct any permanent obstruction, or subtract from or add substantially to the ground level, or allow the installation of utilities not already in place, in the Easement area without obtaining the specific written permission of the Town, which permission shall not be unreasonably withheld, conditioned or delayed. (b) Owner shall take no action which would impair or in any way modify the earth cover over, or the lateral, or subjacent support for the aforementioned improvements and appurtenances within the Easement area without obtaining the specific written permission of the Town, which permission shall not be unreasonably withheld, conditioned or delayed. (c) Owners shall take no action nor shall otherwise permit any activity, event, or permanent or temporary structure which interferes with the movement of pedestrian, non-motorized or vehicular traffic, emergency vehicle access, access for maintenance or inspection, and other lawful purposes within the Easement area in which the Town may use right-of-ways generally. (d) In the event the terms of Paragraphs 3(a), (b) or (c) above are violated by the Owner or by any person in privy with it, such violation shall be corrected and eliminated immediately upon receipt of notice from Town, and, in the alternative, Town shall have the right to correct and eliminate such violation, and the Owner, or its successors and assigns, shall promptly pay the reasonable and actual cost thereof. (e) Owner agrees to defend and hold harmless the Town for any damages or claims arising from Owner’s activities within the Easement area. 4. Town agrees that plans for construction of any improvements within the area of the Easement will be provided to Owner prior to commencement of construction. Town agrees to hold Owner harmless from any damages caused by negligent acts of the Town during construction, operation and maintenance improvements, and for any damages or claims arising from Town’s activities within the Easement area. Except as otherwise provided herein, nothing in this Easement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. The Town covenants that neither it nor its employees, agents, contractors or representatives shall dispose of, generate, manufacture, release or store environmentally hazardous substances on or about the Easement area. ATTACHMENT A 3 5. The Town, its employees, agents, contractors and representatives, shall be prohibited from taking any action or omission that subjects the Easement area to liens of any kind, including, but not limited to, construction, mechanic’s or materialmen’s liens (collectively, “Liens”). In the event the Easement area or the balance of Owner’s property becomes subject to any such Liens directly or indirectly through the action or inaction of the Town, its employees, agents, contractors, or representatives, the Town shall discharge and bond off any such Liens within five (5) days of the imposition of any such Liens, and the failure to do so shall permit Owner to pursue all of its rights and remedies under this Easement Deed, at law, or equity. 6. The Town shall insure the Easement area and include the same in its commercial general liability policies, which policies shall be maintained in commercially reasonable amounts. Owner shall be named as an additional insured and Town shall deliver to Owner the certificate of insurance naming Owner as an additional insured not less frequently than annually. 7. The parties agree that neither party has made or authorized any agreement with respect to this Easement other than as expressly set forth herein, and no oral representation, promise, or consideration different from the terms herein contained shall be binding on either party, or its agents or employees, hereto. 8. Owner, for itself, its successors and assigns, does covenant, grant, bargain, and agree to and with the Town, its heirs and assigns, that at the time of the ensealing and delivery of these presentments, Owner is well seized of the Easement above conveyed, has good and marketable title in fee simple, and has good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form as aforesaid, subject to any easements, liens, claims, reservations, covenants, conditions and restrictions of public record or which are obvious from a physical inspection of the Easement area. Owner further agrees that Owner shall and will WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and peaceable possession of the Town, its heirs and assigns, against all and every person or persons lawfully claiming by and through Owner. 7. Whenever used herein, the singular number shall include the plural, the plural the singular; and the use of any gender shall be applicable to all genders. All of the covenants herein contained shall be binding upon and inure to the benefit of the parties hereto, their respective heirs, personal representatives, successors and assigns. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] ATTACHMENT A 4 IN WITNESS WHEREOF, the undersigned have set their hands hereto on the day and year first above written. _________________________________ A Colorado ____________ By:____________________________ Its:____________________________ STATE OF _____________________________ } } ss. COUNTY OF ___________________________ } Subscribed and sworn to before me this _______ day of ___________, 2014, by _________________ as [Title]. Witness my hand and official seal. My commission expires:__________ __________________________ Notary Public ATTACHMENT A 5 TOWN OF AVON BY: _____________________________ Rich Carroll, Mayor ATTEST: ________________________ Debbie Hoppe, Town Clerk STATE OF COLORADO } } ss. COUNTY OF EAGLE } The foregoing document was subscribed and sworn to before me this ________ day of ______, 2014, by Rich Carroll as Mayor and Debbie Hoppe as Town Clerk of the Town of Avon. Witness my hand and seal. My commission expires:_____________ _________________________ Notary Public TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Virginia Egger, Town Manager Date: July 9, 2014 Re: Ordinance 14-13 Revocable Encroachment License for Public Parking Lot BACKGROUND The Planning and Zoning Commission approved the design for development of a public parking lot west of Christy Sports at its April 24, 2014, meeting. The proposed site is Town-owned land, currently planted in grasses with several trees on the lot. Staff recommended the change as a better use of the land considering location near at the core of East Avon and onto Avon Road. PROJECT SUMMARY The parking lot would be developed by Hoffmann Commercial Properties at its cost. • 30 +/- spaces would be provided • Parking would remain open to the public REVOCABLE ENCROACHMENT LICENSE Staff Recommendation: Attached is Ordinance 14-13, which would grant a Revocable Encroachment License to Hoffmann Commercial Properties to install, construct and maintain the parking lot. This is first reading. • Initial term would be a minimum of 10 years, with a six month notice for termination thereafter. • Use would be for public parking • Hoffmann Commercial Properties could limit parking time, such as a 2-hour parking limit; no overnight parking would be allowed Term of Franchise Requested by HCRE: Jon White, President, Hoffmann Commercial Real Estate, has requested the term of the lease be 99 years instead of the terms currently described in the License. In working with Town Attorney Eric Heil, we concluded that a 99-year lease should still include a six-month notice for termination; hence, the 99-year term seemed unnecessary. Jon is expected to join the Council meeting for this agenda item. REQUESTED BALLOT ISSUE FOR SALE OF THE PROPERTY: HCRE is also interested in acquiring the property from the Town through the required voter approval at the ballot. Council should provide direction as to whether this is a voter question you would support placing on the November 4, 2014, ballot. If so, the following steps would need to be completed by August 5th: • Appraisal completed by HCRE • Covenant prepared for use as a short-term parking lot • Draft ballot language prepared by Town Attorney Council would review these materials at its August 12th meeting; and decide whether to move forward with a sale question. Action on the ballot question would be August 26th. MOTION: If Council wishes to proceed with the License and second reading, the recommended motion is: I move to approve Ordinance 14-13 on first reading and refer the Ordinance to a public hearing for second reading on July 22, 2014. Ord. No 14-13 Approving Revocable License Agreement July 15, 2014 Page 1 of 3 TOWN OF AVON ORDINANCE 14-13 SERIES of 2014 AN ORDINANCE APPROVING AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMANN COMMERCIAL PROPERTIES FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN-OWNED RIGHT-OF-WAY AND PROPERTY WHEREAS, the Town Council has authority to grant revocable encroachment licenses for Town owned public property and/or right-of-ways; WHEREAS, the Town Council finds that the grant of a revocable encroachment license to construct a parking lot open to the general public on a public property adjacent to the Christy Sports western parking lot and on a portion of Avon Road will promote the Avon Comprehensive Plan and promote economic vitality in the Avon commercial core and will thereby promote the healthy, safety and general welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Revocable License Agreement Approved. The attached Revocable License Agreement is hereby approved and accepted. Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional Ord. No 14-13 Approving Revocable License Agreement July 15, 2014 Page 2 of 3 or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14-13 Approving Revocable License Agreement July 15, 2014 Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for July 22, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. ____________________________ Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on July 22, 2014. ____________________________ Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: _______________________________ Debbie Hoppe, Town Clerk Avon Road License Agreement DRAFT July 1, 2014 Page 1 of 6 AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMANN COMMERCIAL PROPERTIES FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN-OWNED RIGHT-OF-WAY and PROPERTY 1.0 PARTIES. The parties to this agreement (“Agreement”) are the TOWN OF AVON, COLORADO, a Colorado home rule municipality (“Town”) and Hoffmann Commercial Properties (“Licensee”). This Agreement is effective upon execution by the Licensee and following execution by the Mayor on the date indicated below. 2.0 RECITALS AND PURPOSE. 2.1. The Town is the owner of certain property located in the Town of Avon, Eagle County, Colorado, commonly known as Avon Road. A portion of Avon Road that is subject to this Agreement is more specifically described on Exhibit A: Private Improvements and such portion of Avon Road shall be referred to as the “Town Property”. 2.2. The Licensee has expressed a desire to encroach upon and occupy the Town Property for the purpose of installing, constructing, and maintaining certain temporary landscape improvements. 2.3. Licensee agrees to construct public parking and landscaping (“Private Improvements”) on the Town Property, which the Town desires and acknowledges is a valuable public benefit that promotes goals of the Town’s Comprehensive Plan. Town further finds that the Private Improvements on Town Property provide benefits and value that equal or exceed the value of the Town Property that the Town is providing for use by Licensee. 2.4. The Town is willing to grant a revocable license to the Licensee under the terms and conditions as hereinafter specified in this Agreement provided that nothing in this Agreement shall waive or modify any obligation to seek building permits, right-of-way permits (including traffic control), variances, or other approval necessary to meet any obligation imposed by law. The Licensee remains obligated to apply for and obtain all necessary permits and approvals, pay all required fees, and comply with all applicable local laws, including but not limited to any applicable provisions in the Avon Municipal Code. 3.0 TERMS AND CONDITIONS. 3.1. The Town hereby grants to the Licensee a revocable license for the encroachment and occupation described as follows: landscape plantings (trees, shrubs, and ground cover), retaining walls, as such Private Improvements are depicted in Exhibit A: Private Improvements; provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town of Avon. To the extent that the location or other specifications of this Agreement or any exhibit conflicts with local laws, Avon Road License Agreement DRAFT July 1, 2014 Page 2 of 6 the local law shall govern. Except for the encroachment and occupation of the Private Improvements identified in this ¶ 3.1 and depicted on Exhibit A: Private Improvements, no other encroachment, structure, improvement, vehicle, fence, wall, landscaping, or any other real or personal property shall be erected, installed, constructed, parked, stored, kept, or maintained in any way or fashion on the Town Property. As a condition to the license granted in this Agreement, Licensee shall construct the Private Improvements as depicted on Exhibit A: Private Improvements, which Private Improvements shall be constructed according to Town’s standards. 3.2. The encroachment and occupation of Private Improvements as specified in ¶ 3.1 above shall continue from the date of this Agreement to the time that this Agreement is terminated. Due to the significant investment by the Licensee, the Town intends that the initial period of this license will run for a minimum of ten (10) years from the date this License Agreement is executed. After the initial ten (10) year period, the Town may terminate this Agreement, with or without cause, at any time by providing at least six (6) months advance written notice to Licensee. 3.3. The Licensee agrees to construct, maintain, and repair the Private Improvements placed or located on the Town Property by the Licensee or its lessees, agents, employees, or other persons under the control or direction of the Licensee pursuant to this Agreement at the cost and expense of the Licensee and at no cost or expense to the Town. The Licensee agrees that the Private Improvements shall be accessible and open to parking by the general public without charge and that overnight parking shall not be permitted. Limiting parking to periods of time shall be allowed, for example a 2-hour parking limit. The Licensee agrees to erect and maintain appropriate signage for parking. The Licensee agrees to provide private enforcement of parking regulations consistent with this Agreement and acknowledges that Town may provide parking enforcement assistance in a manner consistent with, and according to, Town policies as is provided for other private commercial parking areas open to the general public. 3.4. The Licensee agrees to remove or cover graffiti or other damage caused to the Private Improvements within a reasonable time following notice or knowledge of such damage or within forty-eight (48) hours of delivery to the Licensee of a written demand by the Town, whichever is earlier. The Licensee shall not erect, cause to be erected or permit the erection of any sign, advertising object, or illustration upon any improvement, structure, fence, or wall placed or located by the Town Property pursuant to this Agreement and shall promptly remove any such sign or advertising. 3.5. The Licensee agrees to maintain the landscaping in a healthy condition at all times during this Agreement and shall be responsible for ensuring the proper pruning or replacement as necessary to present a healthy landscape condition. 3.6. The Licensee expressly agrees to, and shall, indemnify and hold harmless the Town and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and attorney’s fees that are or Avon Road License Agreement DRAFT July 1, 2014 Page 3 of 6 may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any omission or act of commission by the Licensee or any of its employees, agents, partners, or lessees, in encroaching upon the Town Property. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensee shall indemnify the Town for all claims, damages, liability, or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any claim in whole or in part that all or any portion of the Private Improvements and encroachment permitted by this Agreement constitutes a dangerous and/or unsafe condition within a public right-of-way. 3.7. The Licensee agrees that it will never institute any action or suit at law or in equity against the Town or any of its officers or employees, nor institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, or compensation for or on account of any damages, loss, or injury either to person or property, or both, known or unknown, past, present or future, arising as a result of or form the revocable license granted to the Licensee by this Agreement. This provision includes but is not limited to claims relating to road maintenance, snow removal or other public works activities performed by or on behalf of the Town. 3.8. The Licensee agrees that the Town is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of any Private Improvements erected or maintained by the Licensee under this Agreement. 3.9. The Licensee agrees to repair and reconstruct any damage to the Town Property upon termination of this Agreement or removal of the Private Improvements described in ¶ 3.1 and any other improvements erected by the Licensee on the Town Property and the Licensee shall return the Town Property to its original condition at the cost and expense of the Licensee and at no cost or expense to the Town. In the event that Licensee does not remove the Private Improvements and repair and restore Town Property to the condition prior to this Agreement within the time period determined in ¶ 3.2 above, then Licensee shall be deemed to have abandoned the Private Improvements and any rights thereto and the Town may proceed to remove the Private Improvements. The Town may seek recovery of all costs incurred for the removal of Private Improvements from Town Property, repair of damages to Town Property, and restoration of Town Property, including legal costs and reasonable attorney fees. 3.10. The Licensee agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $1,000,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured”. However, the Licensee’s failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Licensee to indemnify or hold the Town harmless in accordance with this Agreement. Avon Road License Agreement DRAFT July 1, 2014 Page 4 of 6 3.11. The Licensee shall be deemed to have intentionally and irrevocably abandoned and relinquished rights and interest in the Private Improvements in the event that the Licensee conveys all the Licensee’s interest in the property or properties obtaining access or receiving benefit from the improvements and encroachments described in this Agreement. The Town shall be entitled to rely upon the public records of ownership maintained by the office of either the Eagle County Clerk and Recorder or the Eagle County Assessor in rendering a determination that the Licensee has abandoned and relinquished the Licensee’s rights and interests as provided by this paragraph. In such event, the Town may remove and demolish such improvements without notice to the Licensee. 4.0 TERMINATION FOR DEFAULT. Town may elect to terminate this Agreement and revoke the license for encroachment on Town Property in the event that Licensee defaults under any provision of this Agreement provided that Town first provides written notice describing the default and Licensee fails to cure by 5:00 p.m. Mountain Time on the third business day after the date of the written notice of default if such default involves a failure to permit parking by the general public in accordance with ¶ 3.3 or a failure to provide and maintain insurance required by ¶ 3.10 or fails to cure within thirty (30) days after the date of a written notice of default for all other defaults in this Agreement. 5.0 ASSIGNMENT. This Agreement shall not be assigned by the Licensee without the prior written consent of the Town which may withhold its consent for any reason; provided that the Town encourages the Licensee to inform any purchaser of the Licensee’s property or interests of the existence of this Agreement and the Town will promptly consider any request by the Licensee for assignment of this Agreement to such subsequent purchaser. 6.0 NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the signature page below, or at such other address as has been previously furnished in writing, to the other party or parties. Such notice shall be deemed to have been given when deposited in the United States Mail. 7.0 INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the parties. If any other provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke any authorization, whether explicit or implied to the continuing use and occupancy of the Town Property for the Private Improvements. 8.0 GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado and venue for any action arising under this agreement shall be in the appropriate court for Eagle County, Colorado. Avon Road License Agreement DRAFT July 1, 2014 Page 5 of 6 9.0 WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 10.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 11.0 UNDERLYING INTENT AND SCOPE. It is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the construction, maintenance, or operation of the Private Improvements and encroachment permitted by this Agreement and that, in all instances, the risk of loss, liability, obligation, damages, and claims associated with the encroachment shall be borne by the Licensee. This Agreement does not confer upon the Licensee any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. 12.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of the Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority. 13.0 LEGAL FEES AND COSTS. In the event the Town seeks legal action to enforce this Agreement or to recover reimbursement costs for removal of private improvements from, repair of any damages, and/or restoration of Town property subject to this Agreement, Town shall be entitled to recover any and all legal costs and attorney’s fees incurred. [SIGNATURE PAGE FOLLOWS] Avon Road License Agreement DRAFT July 1, 2014 Page 6 of 6 DATED __________, 2014. TOWN OF AVON: By: ________________________________ Rich Carroll, Mayor ATTEST: Approved as to Form: _________________________________ ______________________________ Debbie Hoppe, Town Clerk Eric Heil, Town Attorney LICENSEE: By: _________________________________ Address: PO Box 1980 Avon, CO 81620 STATE OF COLORADO ) ) COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ________ day of ____________________, 20____, personally by _______________________________. ___________________________________ Notary Public (SEAL) Commission expires: _____________ Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric Heil, Town Attorney RE: Revised to Add-On PIF Collection Services Agreement DATE: July 10, 2014 Summary: Council previously approved an Add-On Retail Sales Fee Collection Services Agreement by Resolution 13-13 in spring of 2013. Since that time, the Commercial and Mixed-Use Public Improvement Companies (“PICs”) desire revisions to conform the definitions of in the Collection Services Agreement and to expand the agreement to include PIF Revenues that exceed the Add-On Retail Sales Fee amount and/or include Add-On PIFs that are assessed on accommodations and real estate transfers. The majority of the revisions include changing the phrase “Add-On Retail Sales Fee” to “Add-On PIF” and adding language to include within the scope of the Collection Services Agreement applying an Add-On PIF to accommodations and to real estate transfers. Collection Services Agreement: The Collection Services Agreement is the agreement whereby the PICs and the Town retain Special District Management Services (“SDMS”) to perform the mechanical operation of assessing the Add-On RSF (.75% on retail transactions) and remit that amount to the Town, or on behalf of the Town in the case of the Asphalt Overlay Payments, as one of the essential terms of the overall settlement. There are three documents that establish and implement the Town’s right to the .75% retail sales fee, including (1) the Development Agreement, (2) the revisions to the Commercial and Mixed Use Declarations state Town’s right to enforce the imposition of the Add-On Retail Sales Fee on vendors, and (3) the Collection Services Agreement whereby an agent is retained to perform the function of imposing, collecting and remitting the Add-On Retail Sales Fee. To the extent that the PICs may impose an Add-On PIF on retail sales greater than .75%, on accommodations or on real estate transfers, then this Collection Services Agreement will govern SDMS’s obligations to impose, collect and remit those additional amounts also. No additional Add-On PIF in excess of the .75% Add-On Retail Sales Fee is contemplated at this time. Substantive Changes: The only substantive change in these revisions is in Section 3.5 which addresses payment of costs for SDMS’s services and which includes language that states costs related to Add-On PIF revenues which are not part of the Municipal Payments to Town are to be paid by the non-Municipal Payment portion of revenues, and where such costs cannot be attributed then the costs are to be paid on a pro-rata basis. SMDS’s charges are a very small percentage of the overall revenues (less than 1%) and the proposed language is fair and technically appropriate. The other substantive change was to add Section 3.8 which states that there are no third party beneficiaries, which is a good general drafting clause to include in contracts. There are no other substantive changes and it is my opinion that all the revisions are acceptable and the revised Collection Services Agreement is consistent with the requirements for an Add-On Retail Service Fee in the Development Agreement. Requested Town Council Action: Approve Resolution No. 14-15 “A RESOLUTION APPROVING THE ADD-ON PIF FEE COLLECTION SERVICES AGREEMENT.” Thanks, Eric Attachments: Resolution 14-15 with Exhibit A: Add-On PIF Collection Services Agreement Add-On PIF Collection Services Agreement REDLINE COMPARISON M EMORANDUM & PLANNING, LLC Res. 14-15 Approving the Add-On PIF Services Collection Agreement July 10, 2014 TOWN OF AVON RESOLUTION NO. 14-15 Series of 2014 A RESOLUTION APPROVING THE ADD-ON PIF COLLECTION SERVICES AGREEMENT WHEREAS, on October 7, 2011 the Town of Avon and other parties entered into the Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation No. 2008 CV 385 and 2010 CV 316, Eagle County District Court; WHEREAS, as partial implementation of the Settlement Term Sheet, the Avon Town Council approved the Consolidated, Amended and Restated Annexation and Development Agreement (“CARADA”) by Ordinance No. 12-10 which set forth obligations in section 6.5 of the CARADA for the PICs to collect, or cause the Add-On RSF Collection Agent to collect the Add-On RSF Revenues for the purpose of remitting such revenues to Asphalt Overlay Account and to the Town as Municipal Payments (as the terms “PIC,” “Add-On RSF Collection Agent,” “Add-On RSF Revenues,” “Asphalt Overlay Account,” and “Municipal Payments” are defined in the CARADA); WHEREAS, the Avon Town Council previously approved an Add-On Retail Service Fee Collection Services Agreement (“Collection Services Agreement”) by Resolution No. 13-13; however, certain revisions made by Village (at Avon) Commercial Public Improvement Company and the Village (at Avon) Commercial Public Improvement Company which were not substantive to the Town’s rights to the Add-On Retail Service Fee under the CARADA were desired to conform the definitions in the Collection Services Agreement to various bond documents and to allow for the potential to impose an Add-On PIF in excess of the Add-On RSF and/or an Add-On PIF applicable to accommodations and real estate transfers, thereby requiring the Town to re-approve the Collection Services Agreement as amended; and, WHEREAS, the Avon Town Council approved the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation by Ordinance No. 12-10 which set forth various terms concerning the execution and deposit of documents and agreements into escrow and the effectiveness or voiding of such documents and agreements. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Add-On PIF Collection Services Agreement, attached hereto as Exhibit A, is hereby approved by the Town of Avon subject to the terms and conditions of the Receipt and Escrow Agreement Pertaining to The Village (at Avon) Settlement Implementation. ADOPTED JULY 15, 2014 TOWN COUNCIL ATTEST: By:_________________________________ By:________________________________ Rich Carroll, Mayor Debbie Hoppe, Town Clerk 1305311.1 ADD-ON PIF COLLECTION SERVICES AGREEMENT THIS ADD-ON PIF COLLECTION SERVICES AGREEMENT (this “Agreement”) dated as of the ____ day of ____________, 20___ (“Effective Date”), is entered into by and among SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation (“SDMS”); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Commercial PIC”); THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Mixed-Use PIC”); and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Town”). RECITALS This Agreement is made with reference to the following facts: A. Capitalized terms used in this Agreement have the meanings set forth in Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this Agreement. B. Pursuant to the Commercial Declaration, Commercial Declarant has imposed, among other matters, within the Commercial Property an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Commercial Property. C. Pursuant to the Mixed-Use Declaration, Mixed-Use Declarant has imposed, among other matters, within the Mixed-Use Property an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Mixed-Use Property. D. The Commercial PIC, the Mixed-Use PIC, the Town and certain other Persons previously have entered into the Annexation and Development Agreement. E. The Town’s and the Commercial PIC’s receipt of and use of the Add-On PIF Revenues derived from the Commercial Property are subject to the terms and conditions of the Annexation and Development Agreement and the Commercial Declaration. F. The Town’s and the Mixed-Use PIC’s receipt of and use of the Add-On PIF Revenues derived from the Mixed-Use Property are subject to the terms and conditions of the Annexation and Development Agreement and the Mixed-Use Declaration. G. The PICs wish to appoint SDMS, and SDMS wishes to accept such appointment, as their agent to collect, receive, disburse and account for all Add-On PIF Revenues, if any, in accordance with the terms and conditions of, as applicable, the Commercial Declaration, the Mixed-Use Declaration and the Annexation and Development Agreement, as set forth in this Agreement, and the Town wishes to consent to such appointment. Exhibit A 2 1305311.1 AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements, promises and covenants herein contained, the Parties mutually undertake, promise, and agree for themselves, their respective representatives, successors and assigns, as follows: SECTION 1 Add-On PIF Collection Agent Functions 1.1. Appointment of SDMS as Agent of the PICs and the Town. (a) Appointment and Acceptance. The PICs hereby appoint SDMS as their and the Town’s agent, the Town hereby consents to such appointment, and SDMS hereby accepts such appointment, for purposes of (i) receiving, collecting, accounting for and administering all Add-On PIF Revenues paid by PIF Obligors, and (ii) remitting and disbursing all Add-On PIF Revenues to, as applicable, the Commercial PIC, the Mixed- Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town), or as otherwise required pursuant to this Agreement, during the term of and subject to the terms and conditions of this Agreement. By the execution of this Agreement, SDMS accepts the responsibility of receiving the Add-On PIF Revenues from PIF Obligors and depositing such Add-On PIF Revenues in the Asphalt Overlay Account, the Town Account and/or the PIC Account, as applicable, in accordance with the terms and conditions of this Agreement. (b) Agency Relationship. SDMS is not the agent of any Person other than the PICs and the Town and will have only those responsibilities expressly set forth in this Agreement. (c) Ownership of Revenues. Notwithstanding the appointment of SDMS as the PICs’ and the Town’s agent for the purposes and subject to the limitations set forth in this Agreement, (i) the Town is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues comprising the Municipal Payments and derived from the Commercial Property in accordance with the terms of the Commercial Declaration and the Annexation and Development Agreement and derived from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration and the Annexation and Development Agreement; (ii) the Commercial PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and generated from the Commercial Property in accordance with the terms of the Commercial Declaration; and (iii) the Mixed-Use PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and generated from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration. SDMS hereby acknowledges that, as more fully set forth in this Agreement, the Add-On PIF Revenues collected pursuant to this Agreement are the property of the PICs and the Town and SDMS will distribute the Add-On PIF Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement) in accordance with the terms of this Agreement. Exhibit A 3 1305311.1 1.2. Notification to SDMS of PIF Obligors. The Commercial PIC and the Mixed- Use PIC will employ commercially reasonable efforts to provide SDMS with prior written notice of each new PIF Obligor engaging or intending to engage in Taxable Transactions, Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms of which the Commercial PIC and/or Mixed-Use PIC, as applicable, has knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such PIF Obligor. Additionally, SDMS will coordinate with the Director of Finance to obtain notification from the Town of each new Sales Tax license or business license issued to a PIF Obligor within the Property. SDMS will maintain (i) a written list of each active PIF Obligor engaging in Taxable Transactions within the Commercial Property; (ii) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property; (iii) a written list of each active PIF Obligor engaging in Taxable Transactions within the Mixed-Use Property; and (iv) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Mixed-Use Property (each, a “PIF Obligor List”). SDMS will (A) include a current copy of the PIF Obligor Lists relating to Taxable Transactions with each Monthly Add-On PIF Report for Taxable Transactions; (C) include a current copy of the PIF Obligor Lists relating to the renting, letting or provision of Accommodations/Lodging Rooms with each Monthly Add-On PIF Report for the renting, letting or provision of Accommodations/Lodging Rooms; and (C) coordinate with the Director of Finance to ensure that the PIF Obligor Lists are updated to reflect each PIF Obligor which then holds a valid Sales Tax license or business license issued by the Town. In preparing and updating the PIF Obligor Lists, SDMS will be entitled to rely exclusively on the information provided by the PICs and the Director of Finance with no independent obligation of SDMS to investigate or verify the information. 1.3. Remittance of Add-On PIF Revenues to SDMS. (a) General. In performing its obligations under this Agreement, SDMS will be entitled to rely on all reports furnished pursuant to this Section 1.3 without any obligation to investigate or independently verify the information in such reports. (b) Taxable Transactions. For so long as the Add-On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Taxable Transaction conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Mixed-Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on Taxable Transactions conducted by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and Exhibit A 4 1305311.1 (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (c) Lodging Activities. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Mixed-Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (d) Real Estate Transfers. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF Revenues due; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Mixed-Use Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF Revenues due; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. 1.4. Deposit of Add-On PIF Revenues by SDMS. Not later than the first business day of the month following the month of receipt of any Add-On PIF Revenues from PIF Obligors, SDMS will deposit such Add-On PIF Revenues as follows: Exhibit A 5 1305311.1 (a) Establishment of Accounts. 1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account will be established with FirstBank, Avon branch, subject to the following: The Asphalt Overlay Account will be established by EMD Limited Liability Company, Traer Creek LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and conditions of the Annexation and Development Agreement and the Asphalt Overlay Agreement. The only signatories to the Asphalt Overlay Account will be those parties expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and SDMS will not be a signatory on the Asphalt Overlay Agreement or have authority to transfer funds from or draw checks on the Asphalt Overlay Account. The Asphalt Overlay Account may be moved from FirstBank, Avon Branch, to another bank or another branch location of FirstBank in accordance with the terms and conditions of the Asphalt Overlay Agreement and only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. 2. Town Account. Initially, the Town Account is or will be established with FirstBank, Avon branch, subject to the following: The Town Account is or will be established by the Town upon such terms as it deems appropriate using the Town’s Federal Employer Identification Number. The Town’s authorized representative(s), or such designees as the Town in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on the Town Account or have authority to transfer funds from or draw checks on the Town Account. The Town may move the Town Account from FirstBank to another bank or another branch location of FirstBank only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. The Town may designate its existing general fund account, also known as the cash concentration account, as the account which shall serve as the Town Account. 3. PIC Account. Initially, the PIC Account is or will be established with Wells Fargo, Lakewood branch, subject to the following: The PIC Account will be established by the PICs upon such terms as the PICs deem appropriate using the PICs’ Federal Employer Identification Numbers. Each of the PIC’s authorized representative(s), or such designees as each of the PICs in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on the PIC Account or have authority to transfer funds from or draw checks on the PIC Account. The PICs may move the PIC Account from Wells Fargo to another bank or another branch location of Wells Fargo only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. (b) Deposit. SDMS initially will deposit the Add-On PIF Revenues in a separate account from any other funds, including without limitation, any revenues collected by SDMS and derived from the imposition of the Credit PIF. Thereafter, SDMS will transfer the Add-On PIF Revenues from such segregated account and deposit the Add-On PIF Revenues as follows, and, upon depositing such funds, SDMS will have no further obligation with respect to such Add-On PIF Revenues (except with respect to Exhibit A 6 1305311.1 the preparation, distribution and retention of relevant records, reports and audits as required by other provisions of this Agreement): 1. Asphalt Overlay Account. First, SDMS will deposit all or a portion of the Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (A) Initial Five Years. For calendar years 2015 through 2019, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by SDMS. (B) Subsequent Years. Commencing in 2020 and continuing through and including the date on which the Funding Termination occurs, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by SDMS. The PICs and the Town will deliver joint written notice to SDMS (“Joint Notice”), which Joint Notice will specify the date of the Funding Termination. SDMS will be entitled to rely on the accuracy of the date of the Funding Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On PIF Revenues will be made in the Asphalt Overlay Account from and after the day after the date of the occurrence of the Funding Termination. 2. Town Account. After deposit of the applicable portion of the Municipal Payments in the Asphalt Overlay Account, if any, in accordance with Subsection 1 above, SDMS will deposit the remaining portion of the Municipal Payments, if any, actually received by SDMS into the Town Account on a monthly basis continuing through and including the date on which the Tax Credit Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit Termination. SDMS will be entitled to rely on the accuracy of the date of the Tax Credit Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On PIF Revenues, including without limitation, the Municipal Payments, will be made in the Town Account from and after the day after the occurrence of the Tax Credit Termination, and the PICs (or their designees) will thereafter be entitled to receive all Add-On PIF Revenues. 3. PIC Account. SDMS will deposit any portion of the Add-On PIF Revenues not comprising the Municipal Payments actually received by SDMS into the PIC Account on a monthly basis. 1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial PIC and/or the Mixed-Use PIC, SDMS will obtain and thereafter maintain in full force for so long and in such amount as set forth in such written request, a fidelity bond in a form and from an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of SDMS to be paid by the PICs. Exhibit A 7 1305311.1 SECTION 2 Preparation and Disbursement of Reports; Audits 2.1. Preparation and Delivery of Monthly Taxable Transactions Reports. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On PIF Report for Taxable Transactions containing all information required therein with respect to all Add-On PIF Revenues generated Taxable Transactions from the Commercial Property or the Mixed-Use Property and received within such month. SDMS will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each such report to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town. 2.2. Preparation and Delivery of Monthly Lodging Activities Reports. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On PIF Report relating to the renting, letting or provision of Accommodations/Lodging Rooms containing all information required therein with respect to all Add-On PIF Revenues generated from the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property or the Mixed-use Property and received within such month. SDMS will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each such report to the PICs. 2.3. Preparation and Delivery of Monthly Real Estate Transfers Report. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On PIF Report for Real Estate Transfers containing all information required therein with respect to all Add-On PIF Revenues generated from Real Estate Transfers within the Commercial Property or the Mixed-use Property and received within such month. SDMS will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each such report to the PICs. 2.4. Reliance on PIF Obligors’ Reports. In preparing the Monthly Add-On PIF Reports, SDMS will be entitled to rely on the accuracy of the information contained in the applicable Add-On PIF Reporting Forms received from PIF Obligors from time to time without obligation to investigate or independently verify the information contained therein. 2.5. Provision of Add-On PIF Information. Within 10 days after receipt of written notice from the Commercial PIC and/or the Mixed-Use PIC, and on or before January 1 of each calendar year, SDMS will provide each PIF Obligor listed on the PIF Obligor Lists with (i) all then-current Information or policies and procedures adopted by the Commercial PIC or Mixed- Use PIC, as applicable, regarding the calculation, payment and reporting of Add-On PIF Revenues, and (ii) all then-current applicable Add-On PIF Reporting Form(s), procedures and other instructions concerning the collection and remittance of Add-On PIF Revenues to SDMS, including all information required under the Commercial Declaration or the Mixed-Use Declaration, as applicable. In performing the foregoing obligation, SDMS will be entitled to rely Exhibit A 8 1305311.1 on information supplied to it by the PICs and the Director of Finance, and will coordinate with the PICs and the Director of Finance to update all Information and relevant forms prior to distributing them to PIF Obligors. If the PICs change such reporting forms, procedures or other instructions, the PICs promptly will communicate such changes to SDMS and the Town, and SDMS will provide notice thereof to all PIF Obligors then listed on the PIF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will be substantially similar in form to those used or required by the Town for remittance of Sales Taxes, Public Accommodations Taxes and Real Estate Transfer Taxes, as applicable. SDMS will function as the primary contact for PIF Obligors with respect to Information and other forms, procedures and instructions pertinent to collection and remittance of Add-On PIF Revenues, and will coordinate with the PICs and the Town with respect thereto. 2.6. Delinquency Notices to PIF Obligors. (a) First Delinquency Notices. Not later than the 15th day following the applicable Fee Remittance Date, SDMS will send a first delinquency notice by certified mail to any PIF Obligor that: (i) fails to remit Add-On PIF Revenues during the immediately preceding or any other prior Reporting Period; or (ii) SDMS has reasonably determined based solely on information contained in the PIF Obligor’s Add-On PIF Reporting Form, without obligation to investigate or independently verify the accuracy of such information, to have remitted an incorrect amount for any prior Reporting Period. In making any such delinquency determination, SDMS will coordinate with the Director of Finance as reasonably necessary. Such delinquency notice will state that Delinquency Costs (as defined in the Commercial Declaration or Mixed-Use Declaration, as applicable) apply. SDMS will send copies of all first delinquency notices (together with a report listing the name of each PIF Obligor to whom a first delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. (b) Second Delinquency Notices. Not later than the 15th day following SDMS’ issuance of the first delinquency notice as required by Section 2.6(a), SDMS will send a second delinquency notice by certified mail to any PIF Obligor that has not paid any delinquent amount of Add-On PIF Revenues as specified in the first delinquency notice. SDMS will send copies of such second delinquency notices (together with a report listing the name of each PIF Obligor to whom a second delinquency notice was sent, the amount of such delinquency, and the period for which such PIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. SDMS will not be obligated to distribute additional delinquency notices to any Add-On PIF Obligor after the second delinquency notice. (c) Other Actions. In addition to the first and second delinquency notices provided for in Sections 2.6(a) and 2.6(b), SDMS will, upon receipt of a written request therefor by, as applicable, the Commercial PIC, the Mixed-Use PIC or the Town (only to the extent such Person was entitled to receive a copy of the delinquency notices described Exhibit A 9 1305311.1 in Sections 2.6(b) and 2.6(c)), send a written notice to any PIF Obligor whom the Commercial PIC, the Mixed-Use PIC or the Town, as applicable, believes has not fully complied with its obligations under the Commercial Declaration or Mixed-Use Declaration, as applicable, specifying the nature and extent of such PIF Obligor’s non-compliance and requesting that such PIF Obligor immediately remedy such non-compliance. The requesting Person will provide SDMS with information sufficient to enable SDMS to prepare and send such notice, and SDMS will provide a copy of all such notices to the PICs and the Town. In sending the notice required by this Section 2.6(c), SDMS may rely upon the information furnished by the Person requesting the notice without any obligation to investigate or independently verify such information. Other than the obligation to send the notices provided for in Sections 2.6(a) and 2.6(b) and this Section 2.6(c), SDMS will have no obligation to undertake any enforcement action of any nature. 2.7. Confidentiality of Add-On PIF Reporting Forms. Except to the extent required to be included in any report or to be made available for review and audit as required or permitted under the terms of this Agreement, SDMS will maintain in confidence all reports, information or data concerning Taxable Transactions; Real Estate Transfers; the renting, letting or provision of Accommodations/Lodging Rooms; or Add-On PIF Revenues received by SDMS from PIF Obligors unless otherwise required to be made public by law. All such information will be used only for purposes of collecting the Add-On PIF Revenues, enforcing PIF Obligors’ obligations under the Commercial Declaration and Mixed-Use Declaration, as applicable, monitoring compliance with the provisions of the Commercial Declaration and Mixed-Use Declaration, complying with SDMS’ reporting obligations under this Agreement to the PICs and the Town or as otherwise may be authorized under the Commercial Declaration or Mixed-Use Declaration. 2.8. Audits. Within 30 calendar days after the end of each calendar year, SDMS will prepare and deliver to an auditor approved in writing by the PICs all materials necessary for preparation of an audit of SDMS’ accounting of all Add-On PIF Revenues received and disbursed in the immediately preceding calendar year, which audit procedures are generally described in Exhibit D. SDMS will exercise commercially reasonable efforts to cause the auditor to provide to SDMS an annual audited report setting forth the Add-On PIF Revenues received and disbursed by SDMS for the preceding calendar year for delivery, within 90 calendar days after the end of the preceding calendar year, to the PICs and the Town (until the occurrence of the Tax Credit Termination and with respect to only Add-On PIF Revenues comprising any portion of the Municipal Payments). In compiling the information to be provided for the audit, SDMS may rely on information provided as required or permitted under this Agreement without any further obligation to investigate or independently verify the accuracy of such information. SDMS’ reasonable costs and expenses incurred in performing and delivering the annual audit, which reimbursement amount is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). At reasonable times during regular business hours, (i) the PICs are hereby authorized to audit, or cause audits to be conducted of, SDMS’ books and records with respect to the collection and disbursement of Add-On PIF Revenues; and (ii) the Town is hereby authorized to audit, or cause audits to be conducted of, SDMS’ books and records with respect to the collection and disbursement of Add-On PIF Revenues generated from Taxable Transactions. If Exhibit A 10 1305311.1 an independent audit uncovers any deficiency in SDMS’ performance of its obligations under this Agreement, SDMS will promptly cure such deficiency and, to the extent such deficiency consists of SDMS’ failure to disburse Add-On PIF Revenues to the Commercial PIC, the Mixed- Use PIC and/or the Town, as applicable, due to the negligence or misconduct of SDMS, SDMS will, within 10 days after notice from the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, deposit the full amount of such deficiency into the Asphalt Overlay Account, Town Account and/or PIC Account, as applicable, together with interest thereon at a rate equal to 2% above the prime rate published in the Wall Street Journal on the date of discovery of such deficiency and notice thereof to SDMS. The Party(ies) performing any such audit will bear the full costs and expense of performing such audit. SDMS’ reasonable costs and expenses incurred in connection therewith, which amount is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A); provided, however, that SDMS will be responsible for all costs and expenses of any audit which discloses a material deficiency in SDMS’ performance of its obligations under this Agreement to the extent such deficiency is due to the negligence or misconduct of SDMS. SECTION 3 General 3.1. Covenants of the Parties. (a) Representations and Warranties. Each Party hereby represents and warrants to and for the benefit of the other Parties: 1. That it has full power and legal authority to enter into this Agreement; 2. That it has taken or performed all acts or actions that may be required by statute or charter to confirm its authority to execute, deliver and perform each of its obligations under this Agreement; and 3. That neither the execution and delivery of this Agreement, nor compliance with any of the terms, covenants or conditions of this Agreement will result in a violation of or default under any other agreement or contract to which it is a party or by which it is bound. (b) Information. Each Party will provide such information reasonably requested by the other Parties from time to time to allow such Parties to fulfill their respective obligations under this Agreement, the Commercial Declaration and the Mixed- Use Declaration, as applicable. (c) Cooperation. The Parties will cooperate with each other and will undertake any reasonably necessary action that is required to support or assist in the collection, remittance and reporting of all Add-On PIF Revenues payable by PIF Obligors pursuant to the Commercial Declaration and the Mixed-Use Declaration. 3.2. Nature of Add-On PIF. The Parties acknowledge and understand that: (i) the Add-On PIF is a charge imposed pursuant to the Commercial Declaration and the Mixed-Use Exhibit A 11 1305311.1 Declaration for the benefit of the Commercial PIC and the Mixed-Use PIC, respectively, and other beneficiaries specified therein and not through the exercise of any power by the Town; (ii) the Add-On PIF Revenues are not tax revenues in any form; (iii) all Add-On PIF Revenues are the property of the PICs and/or the Town, as applicable, to be used for the purposes set forth in the Annexation and Development Agreement, the Commercial Declaration and the Mixed-Use Declaration; and (iv) SDMS’ role in assisting the PICs to collect the Add-On PIF Revenues is derived through this Agreement and is limited by and will be exercised only in accordance with the terms of this Agreement. 3.3. Bankruptcy of Add-On RSF Obligors. If any Party receives actual notice in writing with respect to any action in the bankruptcy of any PIF Obligor, such Party will, as soon as practicable, give notice or convey copies of such notice which it received to the other Parties. 3.4. Limitation of SDMS Duties. The duties and responsibilities of SDMS are limited to those expressly and specifically stated in this Agreement. SDMS will not be liable or responsible for any loss resulting from any investment or reinvestment made pursuant to this Agreement and made in compliance with the provisions hereof. SDMS will not be personally liable or responsible for any act which it may do or omit to do hereunder, while acting with commercially reasonable care, except for duties expressly imposed upon SDMS hereunder or as otherwise expressly provided herein. SDMS will neither be under any obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commercial PIC, the Mixed-Use PIC or the Town of any of their respective obligations under this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, nor will SDMS be responsible in any manner for the recitals, statements or provisions contained in this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, or in any proceedings taken in connection therewith, such recitals, statements and provisions being made solely by the Commercial PIC, the Mixed-Use PIC and the Town, as applicable. Nothing in this Agreement creates any obligation or liability on the part of SDMS to anyone other than the PICs, the Town and TCMD. 3.5. Compensation. In consideration of SDMS’ performance of services under this Agreement, SDMS will receive the Collection Expenses as determined by the Parties and described in Exhibit E and elsewhere in this Agreement. The rates described in Exhibit E will be subject to annual adjustment by the written mutual consent of the PICs and, until the occurrence of the Tax Credit Termination, the Town, which adjustment will not require an amendment to this Agreement. No new fee schedule will become effective until 30 days after SDMS has given the PICs and, until the occurrence of the Tax Credit Termination, the Town, written notice thereof. Except with respect to specific matters expressly addressed in other provisions of this Agreement to the contrary, all Collection Expenses will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). No later than the 20th day of each calendar month, SDMS will submit to the PICs and, until the occurrence of the Tax Credit Termination, the Town, a billing statement of the total Collection Expenses incurred by SDMS during the prior calendar month (each, a “Monthly Fee Statement”), which will include a calculation of the portion of the Collection Expenses attributable to (i) the collection of the Add-On PIF Revenues comprising the Municipal Payments; and (ii) the portion of the Add-On PIF Revenues not comprising the Municipal Exhibit A 12 1305311.1 Payments. Any general Collection Expenses that are not reasonably capable of being attributed to either clause (i) or clause (ii) above (i.e., general collection and deposit of Add-On PIF Revenues, production and distribution of Monthly Add-On PIF Reports, etc.) will be attributed to clauses (i) and (ii) above prorata based on the amount of Add-On PIF Revenues comprising clause (i) and comprising clause (ii) as a percentage of the total amount of Add-On PIF Revenues collected. The PICs and, as applicable, the Town, will have 20 days from receipt of the applicable Monthly Fee Statement to approve, reject or approve in part and reject in part the Monthly Fee Statement in writing to SDMS. If the PICs and, as applicable, the Town, both fail to provide such written notice to SDMS on or before the expiration of such 20-day period, the Monthly Fee Statement will be deemed approved by both the PICs and, as applicable, the Town. If the PICs and, as applicable, the Town, approve the applicable Monthly Fee Statement, SDMS may deduct, and is hereby expressly authorized to deduct from Add-On PIF Revenues the applicable Collection Expense as set forth in such approved Monthly Fee Statement. If the Commercial PIC, Mixed-Use PIC and/or the Town, as applicable, approve in whole or in part the applicable Monthly Fee Statement, SDMS may deduct, and is hereby expressly authorized to deduct from Add-On PIF Revenues the portion of the Collection Expenses set forth in such Monthly Fee Statement approved by the PICs and, as applicable, the Town, if any. With respect to resolution of any Collection Expenses rejected in whole or in part by the Commercial PIC, Mixed-Use PIC and/or the Town, the applicable Parties will proceed pursuant to Section 3.20. Without limitation of the foregoing: (a) The Town will be solely responsible for payment of SDMS’ Collection Expenses for administration of the portion of the Add-On PIF Revenues comprising the Municipal Payments pursuant to this Agreement. (b) The PICs will be solely responsible for payment of SDMS’ Collection Expenses for administration of the portion of the Add-On PIF Revenues not comprising the Municipal Payments pursuant to this Agreement. (c) The PICs will be solely responsible for payment of SDMS’ reasonable costs and expenses, including attorneys’ fees, incurred prior to execution of this Agreement for negotiation of this Agreement and for activities in furtherance of entering into this Agreement, such payment to be made within 30 days after receipt of SDMS’ invoice therefor. 3.6. Resignation; Removal. (a) General. Notwithstanding any provision to the contrary in this Agreement, SDMS’ obligation to remit to the PICs and the Town any and all Add-On PIF Revenues received by SDMS pursuant to the terms and conditions of this Agreement will survive any resignation or removal of SDMS pursuant to this Section 3.6 until all such Add-On PIF Revenues have been remitted to the PICs or the Town, as applicable, or control over such funds has been transferred to a successor Add-On PIF Collection Agent. No resignation or removal of SDMS will take effect until a successor Add-On PIF Collection Agent has been appointed by the PICs, with the consent of the Town; provided, however, if no successor is appointed by the end of 90 days after delivery of Exhibit A 13 1305311.1 written notice to SDMS of such removal, SDMS may petition a court of competent jurisdiction to appoint a successor. (b) SDMS Resignation. SDMS may resign as the PICs’ and the Town’s agent under this Agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 90 days before the date upon which such resignation is intended to take effect. SDMS’ resignation will be effective on the resignation date set forth in such notice. Notwithstanding the foregoing, except in the event the Commercial PIC, Mixed-Use PIC and/or the Town have rejected Monthly Fee Statements in whole or in part pursuant to Section 3.5, if SDMS’ Collection Expenses have not been paid for a period of two consecutive months, SDMS may resign as the PICs’ and the Town’s agent under this agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 30 days before the date upon which such resignation is intended to take effect and SDMS’ resignation will be effective on the resignation date set forth in such notice; provided, however, if the Commercial PIC, Mixed-Use PIC and/or the Town cure such default within such 30-day period, SDMS’ written notice of resignation will be deemed null and void and of no further force or effect. (c) SDMS Removal. The PICs, with prior written consent of the Town prior to occurrence of the Tax Credit Termination, may remove SDMS as the PICs’ and the Town’s agent for collection of the Add-On PIF Revenues at any time with or without cause. Any such removal action will be effective immediately upon delivery of written notice by the PICs of such removal to SDMS unless the notice specifies a later removal date. 3.7. Assignment; Binding Effect. Except for the collateral assignment of this Agreement by the Commercial PIC and/or the Mixed-Use PIC to any secured lender of the Commercial PIC or the Mixed-Use PIC, as applicable, which assignment will not require the consent of any other Party, this Agreement will not be assigned by any Party for any reason other than to a successor by operation of law or with the prior written consent of the other Parties. This Agreement will inure to the benefit of and will be binding upon the Parties and their duly authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the Mixed-Use PIC, the Town or SDMS is named or is referred to, such provision is deemed to include any successor of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, respectively, immediate or intermediate, whether so expressed or not. Any corporation or other legal entity into which a Party may be merged or converted or with which a Party may be consolidated or any corporation or other legal entity resulting from any merger, conversion, sale, consolidation or transfer to which that Party may be a party or any corporation or other legal entity to which a Party may sell or transfer all or substantially all of its assets will be the successor to such Party without the execution or filing of any document or any further act, anything herein to the contrary notwithstanding. All of the stipulations, obligations, and agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS contained in this Agreement (a) will bind and inure to the benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board, council, agent, or instrumentality to whom or to which there will be transferred by or in accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, or of their respective successors. Exhibit A 14 1305311.1 3.8. Third-Party Beneficiaries. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, will be strictly reserved to the Parties and their duly authorized successors and assigns, and nothing contained in this Agreement will give or allow any such claim or right of action by any other Person with respect to this Agreement. 3.9. Amendment. This Agreement may only be amended, changed, modified or altered by an instrument in writing duly executed by each Party. 3.10. Computation of Time. In computing a period of days, the first day will be excluded and the last day will be included. If the last day of any period is not a business day or is a federal holiday, the period will be extended to include the next succeeding business day which is not a federal holiday. If a number of months is to be computed by counting the months from a particular day, the period will end on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period will end on the last day of that month. If the date for making any payment or the last day for performance of any act or the exercising of any right as provided in this Agreement falls on a federal holiday or on a Saturday or Sunday, such payment may be made, or such act performed, or such right may be exercised on the next succeeding business day which is not a federal holiday with the same force and effect as if done on the nominal date provided in this Agreement. 3.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof and this Agreement will be reformed to most completely effectuate the intent of the Parties as reflected in the Agreement prior to such severance, including the intent of the severed provision to the extent such provision may be so reformed to cure the invalidity or unenforceability. 3.12. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 3.13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 3.14. No Indemnification by SDMS. SDMS will have no obligation to indemnify, hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever. 3.15. Indemnification by PICs and the Town. The PICs, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened under this Agreement arising from or out of any claim in connection with the performance of any of the obligations of SDMS to be performed under this Agreement (for purposes of this Section 3.15, collectively, “Liabilities”) except to the extent such Liabilities are caused by the negligence, Exhibit A 15 1305311.1 willful misconduct or material breach of this Agreement by SDMS, its officers or employees. To the extent permitted by applicable law, the Town, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all Liabilities except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees. 3.16. Relationship to Declarations and Annexation and Development Agreement. The Commercial PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement, that the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement. The Mixed-Use PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement, that the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement. The Town acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Declarations and the Annexation and Development Agreement, that the terms and conditions of the Declarations and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Declarations and the Annexation and Development Agreement. As such, SDMS is authorized to presume that all actions taken by the PICs and the Town in connection with this Agreement comply with the terms and conditions of the Declarations and the Annexation and Development Agreement and to act accordingly in performing its obligations under this Agreement. 3.17. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provision or Section of this Agreement. 3.18. Time of the Essence. Time is of the essence in the performance of the obligations from time to time imposed upon SDMS by this Agreement. 3.19. Notice. Any notice or other information to be given hereunder will be delivered personally or mailed postage prepaid, return receipt requested, to the following addresses: Exhibit A 16 1305311.1 If to SDMS: Special District Management Services, Inc. 141 Union Boulevard Suite 150 Lakewood, Colorado 80228 Attn: Lisa Jacoby With a required copy to: Krendl Krendl Sachnoff & Way, P.C. 370 17th Street, Suite 5350 Denver, Colorado 80202 Attn: Cathy S. Krendl If to Commercial PIC: The Village (at Avon) Commercial Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin If to Mixed-Use PIC: The Village (at Avon) Mixed-Use Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin If to Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager With required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney Exhibit A 17 1305311.1 or such other address as a Party may, by written notice to the other Parties, hereafter specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in writing, a different method for conveying notices or information. 3.20. Dispute Resolution. Any dispute arising under this Agreement that is not resolved by the applicable Parties within 45 days or such other period as may be specifically set forth in this Agreement may be submitted by any of the Parties (including SDMS) for binding arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver, Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be mutually agreed upon by the applicable Parties or, if such Persons are not able to agree, as directed by the arbiter. The arbiter’s decision will be final and non-appealable to the courts. Except to the extent such fees and costs are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees, all of SDMS’ reasonable attorneys’ fees and costs arising from an arbitration, which is a Collection Expense, will be paid from Add-On PIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). [Signature Pages Follow This Page] Exhibit A 18 1305311.1 IN WITNESS WHEREOF, the Commercial PIC, the Mixed-Use PIC, the Town and SDMS have caused this Agreement to be executed as of the day and year first above written. COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: Exhibit A 19 1305311.1 MIXED-USE PIC: THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: Exhibit A 20 1305311.1 TOWN: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney Exhibit A 21 1305311.1 SDMS: SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation By: Name: Title: Exhibit A A-1 1305311.1 EXHIBIT A Definitions For purposes of the attached Add-On PIF Collection Services Agreement, the following terms have the following meanings, unless the context requires otherwise. Further, unless the context requires otherwise, the singular of any term includes the plural, and any reference to a Section or Exhibit is to a Section or Exhibit of the attached Add-On PIF Collection Services Agreement. 1. Add-On PIF Collection Agent. The entity engaged by the PICs and the Town as the collecting agent for disbursement and accounting of the Add-On PIF Revenues pursuant to this Agreement as in effect from time to time, and which is authorized to undertake the duties of the “Add-On RSF Collection Agent” as defined in the Annexation and Development Agreement. 2. Add-On PIF Reporting Form(s). A report of Add-On PIF Revenues payable by each PIF Obligor, in substantially the forms set forth in Exhibit B (or as otherwise required by the Information from time to time, a copy of which form is delivered to SDMS by the PICs in advance of its effective date) which, together with remittance of the Add-On PIF Revenues payable and a copy of the corresponding Town Sales Tax report, Town Public Accommodations Tax report or Town Property Transfer Tax report, as applicable, is to be prepared by each PIF Obligor and delivered to SDMS on or before each Fee Remittance Date for the immediately preceding Reporting Period. 3. Add-On PIF Revenues. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 4. Agreement. As defined in the introductory paragraph, this Add-On PIF Collection Services Agreement between the Parties, as amended and supplemented from time to time. 5. Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) having an “Execution Date” (as defined therein) of October 22, 2013 and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and, with respect to certain portions of the Property, EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority, the PICs and, with respect to certain portions of the Property, EMD Limited Liability Company, all as limited parties, and recorded in the Records on or about even date herewith, as amended from time to time. 6. Asphalt Overlay Account. The restricted escrow account established pursuant to the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays of public roads in the Property in accordance with the terms and conditions set forth in the Annexation and Development Agreement and the Asphalt Overlay Agreement. 7. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account Agreement dated as of __________, 20____ and entered into by and among the Town, Traer Creek Metropolitan District and FirstBank (Avon Branch), which establishes the terms and Exhibit A A-2 1305311.1 conditions upon which funds will be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account. 8. Collection Expense. Any and all fees (including without limitation, Stand-By Fees), costs, expenses, compensation, reimbursements (including without limitation, dispute resolution costs and charges for out-of-pocket expenses such as postage, facsimiles, letterhead, envelopes, printing, etc. for which a receipt is submitted with the applicable Monthly Fee Statement) and other charges due and owing to SDMS in connection with and pursuant to the terms of this Agreement. 9. Commercial Declarant. Traer Creek-RP, LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Commercial Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Commercial Declaration. 10. Commercial Declaration. That certain Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795012, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on June 10, 2008 at Reception No.200812111, as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas made as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321543, and as amended by that certain Third Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on _________, 20___ at Reception No. ____________, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 11. Commercial PIC. As defined in the introductory paragraph of this Agreement. 12. Commercial Property. The property defined as the “Property” in the Commercial Declaration and legally described in Exhibit A to the Commercial Declaration, upon which the Commercial Declarant and its affiliates are developing and intend to further develop a phased, commercial and retail development. 13. Credit PIF. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 14. Declarations. Collectively, the Commercial Declaration and the Mixed-Use Declaration. 15. Director of Finance. The director of finance for the Town, provided that if there is no director of finance for the Town at any time for whatever reason, the “Director of Finance” for all purposes under this Agreement will refer to the Town Manager or the person designated by the Town Manager in writing to the PICs and SDMS. 16. Effective Date. As defined in the introductory paragraph of this Agreement. Exhibit A A-3 1305311.1 17. Exhibits. Individually, one of the following Exhibits to this Agreement and/or, collectively, all of the following Exhibits to this Agreement, as the context dictates, which Exhibits are incorporated into and made a part of this Agreement: Exhibit A: Definitions Exhibit B: Form of Add-On PIF Reporting Forms Exhibit C: Form of Monthly Add-On PIF Reports Exhibit D: Audit Procedures Exhibit E: SDMS Fee Schedule 18. Fee Remittance Date. With respect to Add-On PIF Revenue payments to be made by PIF Obligors, the date on which the corresponding Sales Tax amount, Public Accommodations Tax amount or Property Transfer Tax amount, as applicable, is due and payable to the Town. 19. Funding Termination. The occurrence of the earlier of: (i) 80,000 square feet of additional development of “Commercial Uses” (as defined in the Amended and Restated PUD Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and Development Agreement) have increased by at least $20,000,000 over the actual total annual Taxable Transactions (as defined in the Annexation and Development Agreement) in the year 2011, all as more particularly set forth in Section 6.6(b) of the Annexation and Development Agreement. 20. Information. Any written information or guidelines, as amended and supplemented from time to time, prepared by the PICs and the Town, with the approval of the Commercial Declarant and the Mixed-Use Declarant, regarding the calculation, payment and reporting of the Add-On PIF. 21. Joint Notice. As defined in Section 1.4(b)1(B) of this Agreement. 22. Mixed-Use Declarant. Traer Creek LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Mixed-Use Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Mixed-Use Declaration. 23. Mixed-Use Declaration. That certain Declaration of Covenants for The Village (at Avon) Mixed-Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795013, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas dated as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321544, and as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas recorded in the Records on __________, 20___ at Reception No. ______________, as amended, Exhibit A A-4 1305311.1 supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 24. Mixed-Use PIC. As defined in the introductory paragraph of this Agreement. 25. Mixed-Use Property. The property defined as the “Property” in the Mixed-Use Declaration and legally described in Exhibit A to the Mixed-Use Declaration, upon which the Mixed-Use Declarant and its affiliates are developing and intend to further develop a phased, mixed-use development. 26. Monthly Add-On PIF Reports. The written reports that SDMS is required under the terms of this Agreement to prepare for each calendar month during the term of this Agreement and distribute to the PICs and, as applicable, the Town, which reports will be substantially in the form and contain the information set forth in Exhibit C (or as otherwise mutually agreed upon in writing by the Parties, which will not require an amendment to this Agreement; provided, however, the Town’s approval will not be required for Monthly Add-On PIF Reports relating to the renting, letting or provision of Accommodations/Lodging Rooms or relating to Real Estate Transfers). 27. Monthly Fee Statement. As defined in Section 3.5 of this Agreement. 28. Municipal Payments. The portion of the Add-On PIF Revenues which the Town is entitled to receive and are actually collected by SDMS as more particularly described in the Annexation and Development Agreement. The Municipal Payments are calculated as follows: As of the Effective Date, the rate of the Add-On PIF on Taxable Transactions is 0.75%. The net proceeds, after adjustment for (deduction of) the Collection Expenses related or attributable to such portion of the Add-On PIF Revenues and application of any other adjustments to such portion of the Add-On PIF Revenues as set forth in the Annexation and Development Agreement, of the Add-On PIF Revenues resulting from imposition of the 0.75% rate to Taxable Transactions occurring within the Property will constitute the Municipal Payments. If the Town increases the 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 PIF Revenues which will be construed to be Municipal Payments will be reduced in the same degree as any Sales Tax rate increase above 4.0%. For example, if the Town increases its Sales Tax rate by 0.25% (from 4.0% to 4.25%), the portion of the Add-On PIF Revenues construed to be Municipal Payments will be that amount equivalent to a reduction of 0.25% in the rate of the Add-On PIF on Taxable Transactions (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75%). 29. Party(ies). Individually, a signatory to this Agreement and, collectively, all signatories to this Agreement. 30. Person. Any individual, partnership, corporation, limited liability company, association, trust or other type of entity or organization. 31. PIC Account. The bank account established or to be established for the benefit of the PICs for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On PIF Revenues received from PIF Obligors who have engaged in Taxable Exhibit A A-5 1305311.1 Transactions, in the renting, letting or provision of Accommodations/Lodging Rooms or in Real Property Transfers within the applicable Reporting Period. 32. PICs. Collectively, the Commercial PIC and the Mixed-Use PIC. 33. PIF Obligor List. As defined in Section 1.2. 34. PIF Obligor(s). Any Person(s) who, by virtue of being the seller in a Taxable Transaction; a renter, letter or provider of Accommodations/Lodging Rooms; or the transferee in a Real Estate Transfer, is obligated to collect, as applicable, and remit an Add-On PIF pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as applicable. 35. Property. Collectively, the Commercial Property and the Mixed-Use Property. 36. Property Transfer Tax(es). The tax levied by the Town pursuant to Chapter 3.12 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 37. Public Accommodations Tax(es). The tax levied by the Town pursuant to Chapter 3.28 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 38. Records. The real property records of the Clerk and Recorder for Eagle County, Colorado. 39. Reporting Period. Pursuant to applicable Town regulations, the applicable period of time (which may be monthly, quarterly or such other frequency as the applicable regulations may require) with respect to which (i) a Sales Tax obligor is required to file a periodic report of Taxable Transactions and remit Sales Taxes thereon; (ii) a Public Accommodation Tax obligor is required to file a periodic report of renting, letting or provision of Accommodations/Lodging Rooms and remit Public Accommodations Taxes thereon; or (iii) a Property Transfer Tax obligor is required to file a report of a Real Estate Transfer and remit Property Transfer Taxes thereon. 40. Sales Tax(es). The tax levied by the Town pursuant to Chapter 3.08 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 41. SDMS. As defined in the introductory paragraph of this Agreement, Special District Management Services, Inc., a Colorado corporation, together with its successors and any of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to this Agreement, is the “Add-On RSF Collection Agent” as contemplated in the Annexation and Development Agreement. 42. Stand-By Fees. As defined in Exhibit E. 43. Taxable Transaction. As defined in the Commercial Declaration or the Mixed- Use Declaration, as applicable. Exhibit A A-6 1305311.1 44. Tax Credit Termination. The occurrence of the termination of the Town’s obligation to provide tax credits to offset, in whole or in part, the effect of the Sales Tax, the Public Accommodations Tax, as more particularly described in the Annexation and Development Agreement, which obligation is implemented by and codified in the Town Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 45. Town. As defined in the introductory paragraph of this Agreement. 46. Town Account. The bank account established or to be established for the benefit of the Town for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On PIF Revenues comprising all or a portion of the Municipal Payments received from PIF Obligors who have engaged in Taxable Transactions within the Property within the applicable Reporting Period. Exhibit A B-1 1305311.1 EXHIBIT B Form of Add-On PIF Reporting Forms   Exhibit A B-2 1305311.1 As of the Effective Date, the PICs have not imposed the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed-Use PIC impose the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) will provide such Information and the applicable Add-On PIF Reporting Forms as contemplated in paragraph 2 of Exhibit A. Exhibit A 1013284.61305311.1 1013284.DOCX ADD-ON RETAIL SALES FEE PIF COLLECTION SERVICES AGREEMENT THIS ADD-ON RETAIL SALES FEEPIF COLLECTION SERVICES AGREEMENT (this “Agreement”) dated as of the ____ day of ____________, 20___ (“Effective Date”), is entered into by and among SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation (“SDMS”); THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Commercial PIC”); THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation (“Mixed-Use PIC”); and the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Town”). RECITALS This Agreement is made with reference to the following facts: A. Capitalized terms used in this Agreement have the meanings set forth in Exhibit A. Each of the Exhibits to this Agreement are incorporated into and made a part of this Agreement. B. Pursuant to the Commercial Declaration (i), Commercial Declarant has imposed a Retail Sales Fee on certain sales, provision of goods or services, construction activities and certain other transactions occurring, among other matters, within the Commercial Property; and (ii) the Retail Sales Fee consists of two components, the Credit Retail Sales Fee (as defined in the Commercial Declaration) and the Add-On Retail Sales Fee. an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Commercial Property. C. Pursuant to the Mixed-Use Declaration (i), Mixed-Use Declarant has imposed a Retail Sales Fee on certain sales, provision of goods or services, construction activities and certain other transactions, among other matters, within the Mixed-Use Property an Add-On PIF on Taxable Transactions, Real Estate Transfers and the renting, letting or provision of Accommodations/Lodging Rooms occurring within the Mixed-Use Property; and (ii) the Retail Sales Fee consists of two components, the Credit Retail Sales Fee (as defined in the Mixed-Use Declaration) and the Add-On Retail Sales Fee. D. The Commercial PIC, the Mixed-Use PIC, the Town and certain other Persons previously have entered into the Annexation and Development Agreement. E. Pursuant to the Annexation and Development Agreement and the Commercial Declaration, theThe Town’s and the Commercial PIC’s receipt of and use of the Add-On RSFPIF Revenues derived from the Commercial Property are subject to the terms and conditions of the Annexation and Development Agreement and the Commercial Declaration. F. Pursuant to the Annexation and Development Agreement and the Mixed-Use Declaration, theThe Town’s and the Mixed-Use PIC’s receipt of and use of the Add-On RSFPIF Revenues derived from the Mixed-Use Property are subject to the terms and conditions of the Annexation and Development Agreement and the Mixed-Use Declaration. 2 1013284.61305311.1 1013284.DOCX G. The PICs wish to appoint SDMS, and SDMS wishes to accept such appointment, as their agent to collect, receive, disburse and account for all Add-On RSFPIF Revenues, if any, in accordance with the terms and conditions of, as applicable, the Commercial Declaration, the Mixed-Use Declaration and the Annexation and Development Agreement, as set forth in this Agreement, and the Town wishes to consent to such appointment. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual agreements, promises and covenants herein contained, the Parties mutually undertake, promise, and agree for themselves, their respective representatives, successors and assigns, as follows: SECTION 1 Add-On RSFPIF Collection Agent Functions 1.1. Appointment of SDMS as Agent of the PICs and the Town. (a) Appointment and Acceptance. The PICs hereby appoint SDMS as their and the Town’s agent, the Town hereby consents to such appointment, and SDMS hereby accepts such appointment, for purposes of (i) receiving, collecting, accounting for and administering all Add-On RSFPIF Revenues paid by Add-On RSFPIF Obligors, and (ii) remitting and disbursing all Add-On RSFPIF Revenues to, as applicable, the Commercial PIC, the Mixed-Use PIC and the Town (and/or to the Asphalt Overlay Account on behalf of the Town), or as otherwise required pursuant to this Agreement), during the term of and subject to the terms and conditions of this Agreement. By the execution of this Agreement, SDMS accepts the responsibility of receiving the Add-On RSFPIF Revenues from Add-On RSFPIF Obligors and depositing such Add-On RSFPIF Revenues in the PIC Add-On RSFAsphalt Overlay Account, the Town Add-On RSF Account and/or the Asphalt OverlayPIC Account, as applicable, not later than the first business day of the month following the month of receipt thereof, subject toin accordance with the terms and conditions of this Agreement. (b) Agency Relationship. SDMS is not the agent of any Person other than the PICs and the Town and will have only those responsibilities expressly set forth in this Agreement. (c) Ownership of Add-On RSF Revenues. Notwithstanding the appointment of SDMS as the PICs’ and the Town’s agent for the purposes and subject to the limitations set forth in this Agreement, (i) the Commercial PIC and the Town areis the lawful beneficiariesbeneficiary and owner of the portion of the Add-On RSFPIF Revenues comprising the Municipal Payments and derived from the Commercial Property in accordance with the terms of the Commercial Declaration and the Annexation and Development Agreement; and (ii) the Mixed-Use PIC and the Town are the lawful beneficiaries of the Add-On RSF Revenues and derived from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration and the Annexation and Development Agreement; (ii) the Commercial PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and 3 1013284.61305311.1 1013284.DOCX generated from the Commercial Property in accordance with the terms of the Commercial Declaration; and (iii) the Mixed-Use PIC is the lawful beneficiary and owner of the portion of the Add-On PIF Revenues not comprising the Municipal Payments and generated from the Mixed-Use Property in accordance with the terms of the Mixed-Use Declaration. SDMS hereby acknowledges that, as more fully set forth in this Agreement, the Add-On RSFPIF Revenues collected pursuant to this Agreement are the property of the PICs and the Town and that SDMS will distribute the Add-On RSFPIF Revenues to the PICs and the Town (or as otherwise required pursuant to this Agreement) in accordance with the terms of this Agreement. 1.2. Notification to SDMS of Add-On RSFPIF Obligors. The Commercial PIC and the Mixed-Use PIC will employ commercially reasonable efforts to provide SDMS with prior written notice of each new Add-On RSFPIF Obligor engaging or intending to engage in Add-On RSF Retail ActivitiesTaxable Transactions, Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms of which the Commercial PIC and/or Mixed-Use PIC, as applicable, has knowledge, such notice to be delivered before the initial Fee Remittance Date applicable to such Add-On RSFPIF Obligor. Additionally, SDMS will coordinate with the Director of Finance to obtain notification from the Town of each new Sales Tax license or business license issued to an Add-On RSFa PIF Obligor within the Property. SDMS will maintain (i) a written list of each active Add-On RSFPIF Obligor engaging in Taxable Transactions within the Commercial Property and; (ii) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property; (iii) a written list of each active PIF Obligor engaging in Taxable Transactions within the Mixed-Use Property; and (iv) a written list of each active PIF Obligor engaging in the renting, letting or provision of Accommodations/Lodging Rooms within the Mixed-Use Property (each, a “Add-On RSFPIF Obligor List”). SDMS will (A) include a current copy of the Add-On RSFPIF Obligor List within each Monthly Add-On RSF Report, and willLists relating to Taxable Transactions with each Monthly Add-On PIF Report for Taxable Transactions; (C) include a current copy of the PIF Obligor Lists relating to the renting, letting or provision of Accommodations/Lodging Rooms with each Monthly Add-On PIF Report for the renting, letting or provision of Accommodations/Lodging Rooms; and (C) coordinate with the Director of Finance to ensure that the Add-On RSFPIF Obligor List isLists are updated to reflect each Add-On RSFPIF Obligor which then holds a valid Sales Tax license or business license issued by the Town. In preparing and updating the Add-On RSFPIF Obligor ListLists, SDMS will be entitled to rely exclusively on the information provided by the PICs and the Director of Finance with no independent obligation of SDMS to investigate or verify the information. 1.3. Remittance of Add-On RSF Revenues to SDMSPIF Revenues to SDMS. (a) General. In performing its obligations under this Agreement, SDMS will be entitled to rely on all reports furnished pursuant to this Section 1.3 without any obligation to investigate or independently verify the information in such reports. For so long as the Add- (b) Taxable Transactions. For so long as the Add-On Retail Sales FeePIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Commercial Declaration, each Add-On RSFapplicable PIF Obligor is obligated to: (i) calculate the 4 1013284.61305311.1 1013284.DOCX Add-On Retail Sales FeePIF amount due and payable on Add-On RSF Retail Activitiesthe Taxable Transaction conducted by such Add-On RSFPIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS anthe applicable Add-On RSFPIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On RSFPIF Revenues due for such Reporting Period; and (iii) remit such Add-On RSFPIF Revenues to SDMS, together with the corresponding Add-On RSFPIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On Retail Sales FeePIF is imposed on Taxable Transactions pursuant to the terms and conditions of the Mixed-Use Declaration, each Add-On RSFPIF Obligor is obligated to: (i) calculate the Add-On Retail Sales FeePIF amount due and payable on Add-On RSF Retail ActivitiesTaxable Transactions conducted by such Add-On RSFPIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS anthe applicable Add-On RSFPIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On RSFPIF Revenues due for such Reporting Period; and (iii) remit such Add-On RSFPIF Revenues to SDMS, together with the corresponding Add-On RSFPIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (c) Lodging Activities. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on the renting, letting or provision of Accommodations/Lodging Rooms pursuant to the terms and conditions of the Mixed-Use Declaration, each PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the renting, letting or provision of Accommodations/Lodging Rooms by such PIF Obligor during the relevant Reporting Period; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering all such transactions occurring during the applicable Reporting Period and setting forth the amount of Add-On PIF Revenues due for such Reporting Period; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. (d) Real Estate Transfers. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Commercial Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF 5 1013284.61305311.1 1013284.DOCX Revenues due; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. For so long as the Add-On PIF is imposed on Real Estate Transfers pursuant to the terms and conditions of the Mixed-Use Declaration, each applicable PIF Obligor is obligated to: (i) calculate the Add-On PIF amount due and payable on the Real Estate Transfer consummated by such PIF Obligor as transferee under such transaction; (ii) complete and submit to SDMS the applicable Add-On PIF Reporting Form covering such transaction and setting forth the amount of Add-On PIF Revenues due; and (iii) remit such Add-On PIF Revenues to SDMS, together with the corresponding Add-On PIF Reporting Form, on or before the Fee Remittance Date applicable to such Reporting Period. 1.4. Deposit of Add-On RSFPIF Revenues by SDMS. Not later than the first business day of the month following the month of receipt of any Add-On RSFPIF Revenues from Add-On RSFPIF Obligors, SDMS will deposit such Add-On RSFPIF Revenues as follows: (a) Establishment of Accounts. 1. Asphalt Overlay Account. Initially, the Asphalt Overlay Account will be established with FirstBank, Avon branch, subject to the following: The Asphalt Overlay Account will be established by EMD Limited Liability Company, Traer Creek LLC, Traer Creek Metropolitan District and the Town in accordance with the terms and conditions of the Annexation and Development Agreement and the Asphalt Overlay Agreement. The only signatories to the Asphalt Overlay Account will be those parties expressly specified as signatories as set forth in the Asphalt Overlay Agreement, and SDMS will not be a signatory on the Asphalt Overlay Agreement or have authority to transfer funds from or draw checks on the Asphalt Overlay Account. The Asphalt Overlay Account may be moved from FirstBank, Avon Branch, to another bank or another branch location of FirstBank in accordance with the terms and conditions of the Asphalt Overlay Agreement and only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. 2. Town Add-On RSF Account. Initially, the Town Add-On RSF Account is or will be established with FirstBank, Avon branch, subject to the following: The Town Add-On RSF Account is or will be established by the Town upon such terms as it deems appropriate using the Town’s Federal Employer Identification Number. The Town’s authorized representative(s), or such designees as the Town in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on the Town Add-On RSF Account or have authority to transfer funds from or draw checks on the Town Add-On RSF Account. The Town may move the Town Add-On RSF Account from FirstBank to another bank or another branch location of FirstBank only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. The Town may designate its existing general fund account, also known as the cash concentration account, as the account which shall serve as the Town Add-On RSF Account. 6 1013284.61305311.1 1013284.DOCX 3. PIC Add-On RSF Account. Initially, the PIC Add-On RSF Account is or will be established with Wells Fargo, Lakewood branch, subject to the following: The PIC Add-On RSF Account will be established by the PICs upon such terms as the PICs deem appropriate using the PICs’ Federal Employer Identification Numbers. Each of the PIC’s authorized representative(s), or such designees as each of the PICs in its discretion may authorize, will be the only signatories, and SDMS will not be a signatory on the PIC Add-On RSF Account or have authority to transfer funds from or draw checks on the PIC Add-On RSF Account. The PICs may move the PIC Add-On RSF Account from Wells Fargo to another bank or another branch location of Wells Fargo only upon providing SDMS with 30 days’ prior written notice thereof, together with written instructions for SDMS’ deposit of funds therein. (b) Deposit. SDMS initially will deposit the Add-On RSFPIF Revenues in a separate account from any other funds, including without limitation, any revenues collected by SDMS and derived from the imposition of the Credit Retail Sales Fee RevenuesPIF. Thereafter, SDMS will transfer the Add-On RSFPIF Revenues from such segregated account and deposit the Add-On RSFPIF Revenues as follows, and, upon depositing such funds, SDMS will have no further obligation with respect to such Add-On RSFPIF Revenues (except with respect to the preparation, distribution and retention of relevant records, reports and audits as required by other provisions of this Agreement): 1. Asphalt Overlay Account. First, SDMS will deposit all or a portion of the Municipal Payments into the Asphalt Overlay Account on a monthly basis on behalf of the Town as follows: (A) Initial Five Years. For calendar years 20132015 through 2017,2019, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $120,000.00 (ONE HUNDRED TWENTY THOUSAND DOLLARS) of Municipal Payments actually received by SDMS. (B) Subsequent Years. Commencing in 20182020 and continuing through and including the date on which the Funding Termination occurs, SDMS will deposit, in the aggregate for each calendar year, into the Asphalt Overlay Account the first $75,000.00 (SEVENTY FIVE THOUSAND DOLLARS) of Municipal Payments actually received by SDMS. The PICs and the Town will deliver joint written notice to SDMS (“Joint Notice”), which Joint Notice will specify the date of the Funding Termination. SDMS will be entitled to rely on the accuracy of the date of the Funding Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On RSFPIF Revenues will be made in the Asphalt Overlay Account from and after the day after the date of the occurrence of the Funding Termination. 2. Town Add-On RSF Account. After deposit of the applicable portion of the Municipal Payments in the Asphalt Overlay Account, if any, in accordance with Subsection 1 above, SDMS will deposit the remaining portion of the Municipal 7 1013284.61305311.1 1013284.DOCX Payments, if any, actually received by SDMS into the Town Add-On RSF Account on a monthly basis continuing through and including the date on which the Tax Credit Termination occurs. The PICs and the Town will deliver a Joint Notice of the occurrence of the Tax Credit Termination, which Joint Notice will specify the date of the Tax Credit Termination. SDMS will be entitled to rely on the accuracy of the date of the Tax Credit Termination contained in the Joint Notice without obligation to investigate or independently verify such date. No deposits of Add-On RSFPIF Revenues, including without limitation, the Municipal Payments, will be made in the Town Add-On RSF Account from and after the day after the occurrence of the Tax Credit Termination, and the PICs (or their designees) will thereafter be entitled to receive all Add-On RSFPIF Revenues. 3. PIC Add-On RSF Account. SDMS will deposit any portion of the Add-On RSFPIF Revenues not comprising the Municipal Payments and actually received by SDMS into the PIC Add-On RSF Account on a monthly basis. 1.5. Fidelity Bond. Upon receiving a written request therefor from the Commercial PIC and/or the Mixed-Use PIC, SDMS will obtain and thereafter maintain in full force for so long and in such amount as set forth in such written request, a fidelity bond in a form and from an issuer approved by the PICs. The cost of the fidelity bond will be a reimbursable expense of SDMS to be paid by the PICs. SECTION 2 Preparation and Disbursement of Reports; Audits 2.1. Preparation and Delivery of Monthly Add-On RSFTaxable Transactions Reports by SDMS. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On RSFPIF Report for Taxable Transactions containing all information required therein with respect to all Add-On RSF RevenuesPIF Revenues generated Taxable Transactions from the Commercial Property or the Mixed-Use Property and received within such month. SDMS will retain the original of each Monthly Add-On RSF Reportsuch report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each Monthly Add-On RSF Report to the PICs andsuch report to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town. 2.2. Preparation and Delivery of Monthly Lodging Activities Reports. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On PIF Report relating to the renting, letting or provision of Accommodations/Lodging Rooms containing all information required therein with respect to all Add-On PIF Revenues generated from the renting, letting or provision of Accommodations/Lodging Rooms within the Commercial Property or the Mixed-use Property and received within such month. SDMS will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each such report to the PICs. 8 1013284.61305311.1 1013284.DOCX 2.3. Preparation and Delivery of Monthly Real Estate Transfers Report. For each calendar month or portion thereof within the term of this Agreement, SDMS will prepare a Monthly Add-On PIF Report for Real Estate Transfers containing all information required therein with respect to all Add-On PIF Revenues generated from Real Estate Transfers within the Commercial Property or the Mixed-use Property and received within such month. SDMS will retain the original of each such report for a minimum of three years after the last day of the relevant calendar year. On or before the 15th calendar day following the last day of the preceding calendar month, SDMS will deliver a copy of each such report to the PICs. 2.4. 2.2. Reliance on Add-On RSFPIF Obligors’ Reports. In preparing the Monthly Add-On RSFPIF Reports, SDMS will be entitled to rely on the accuracy of the information contained in the applicable Add-On RSFPIF Reporting Forms received from Add-On RSFPIF Obligors from time to time without obligation to investigate or independently verify the information contained therein. 2.5. 2.3. Provision of Add-On RSFPIF Information. Within 10 days after receipt of written notice from the Commercial PIC and/or the Mixed-Use PIC, and on or before January 1 of each calendar year, SDMS will provide each Add-On RSFPIF Obligor listed on the Add-On RSFPIF Obligor ListLists with (i) all then-current Information or policies and procedures adopted by the Commercial PIC or Mixed-Use PIC, as applicable, regarding the calculation, payment and reporting of Add-On RSFPIF Revenues, and (ii) all then-current applicable Add-On RSFPIF Reporting Form(s), procedures and other instructions concerning the collection and remittance of Add-On RSFPIF Revenues to SDMS, including all information required under the Commercial Declaration or the Mixed-Use Declaration, as applicable. In performing the foregoing obligation, SDMS will be entitled to rely on information supplied to it by the PICs and the Director of Finance, and will coordinate with the PICs and the Director of Finance to update all Information and relevant forms prior to distributing them to Add-On RSFPIF Obligors. If the PICs change such reporting forms, procedures or other instructions, the PICs promptly will communicate such changes to SDMS and the Town, and SDMS will provide notice thereof to all RSF Add-OnPIF Obligors then listed on the Add-On RSFPIF Obligor List. It is the intent of the Parties hereto that all forms, reports and instructions will be substantially similar in form to those used or required by the Town for remittance of Sales Taxes, Public Accommodations Taxes and Real Estate Transfer Taxes, as applicable. SDMS will function as the primary contact for Add-On RSFPIF Obligors with respect to Information and other forms, procedures and instructions pertinent to collection and remittance of Add-On RSFPIF Revenues, and will coordinate with the PICs and the Town with respect thereto. 2.6. 2.4. Delinquency Notices for Retail Feeto PIF Obligors. (a) First Delinquency Notices. Not later than the 15th day following the applicable Fee Remittance Date, SDMS will send a first delinquency notice by certified mail to any Add-On RSFPIF Obligor that: (i) fails to remit Add-On RSFPIF Revenues during the immediately preceding or any other prior Reporting Period; or (ii) SDMS has reasonably determined based solely on information contained in the Add-On RSFPIF Obligor’s Add-On RSFPIF Reporting FormsForm, without obligation to investigate or independently verify the accuracy of such information, to have remitted an incorrect amount for any prior Reporting Period. In making any such delinquency determination, 9 1013284.61305311.1 1013284.DOCX SDMS will coordinate with the Director of Finance as reasonably necessary. Such delinquency notice will state that Delinquency Costs (as defined in the Commercial Declaration or Mixed-Use Declaration, as applicable) apply. SDMS will send copies of all first delinquency notices to the PICs and the Town, (together with a report listing the name of each Add-On RSFPIF Obligor to whom a first delinquency notice was sent, the amount of such delinquency, and the period for which such Add-On RSFPIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. (b) Second Delinquency Notices. Not later than the 15th day following SDMS’ issuance of the first delinquency notice as required by Section 2.4(a), SDMS will send a second delinquency notice by certified mail to any Add-On RSFPIF Obligor that has not paid any delinquent amount of Add-On RSFPIF Revenues as specified in the first delinquency notice. SDMS will send copies of such second delinquency notices to the PICs and the Town, (together with a report listing the name of each Add-On RSFPIF Obligor to whom a second delinquency notice was sent, the amount of such delinquency, and the period for which such Add-On RSFPIF Obligors are delinquent) to (i) the PICs; and (ii) until the occurrence of the Tax Credit Termination, the Town with respect to only delinquent Add-On PIF Revenues that comprise any portion of the Municipal Payments. SDMS will not be obligated to distribute additional delinquency notices to any Add-On RSFPIF Obligor after the second delinquency notice. (c) Other Actions. In addition to the first and second delinquency notices provided for in Sections 2.4(a) and 2.4(b), SDMS will, upon receipt of a written request therefor by, as applicable, the Commercial PIC, the Mixed-Use PIC or the Town (only to the extent such Person was entitled to receive a copy of the delinquency notices described in Sections 2.6(b) and 2.6(c)), send a written notice to any Add-On RSFPIF Obligor whom the Commercial PIC, the Mixed-Use PIC or the Town, as applicable, believes has not fully complied with its obligations under the Commercial Declaration or Mixed-Use Declaration, as applicable, specifying the nature and extent of such Add-On RSFPIF Obligor’s non-compliance and requesting that such Add-On RSFPIF Obligor immediately remedy such non-compliance. The requesting Person will provide SDMS with information sufficient to enable SDMS to prepare and send such notice, and SDMS will provide a copy of all such notices to the PICs and the Town. In sending the notice required by this Section 2.4(c), SDMS may rely upon the information furnished by the Person requesting the notice without any obligation to investigate or independently verify such information. Other than the obligation to send the notices provided for in Sections 2.4(a) and 2.4(b) and this Section 2.4(c), SDMS will have no obligation to undertake any enforcement action of any nature. 2.7. 2.5. Confidentiality of Add-On RSFPIF Reporting Forms. Except to the extent required to be included in any report or to be made available for review and audit as required or permitted under the terms of this Agreement, SDMS will maintain in confidence all reports, information or data concerning Taxable Transactions; Real Estate Transfers; the renting, letting or provision of Accommodations/Lodging Rooms; or Add-On RSFPIF Revenues received by SDMS from Add-On RSFPIF Obligors unless otherwise required to be made public by law. 10 1013284.61305311.1 1013284.DOCX All such information will be used only for purposes of collecting the Add-On RSFPIF Revenues, enforcing Add-On RSFPIF Obligors’ obligations under the Commercial Declaration and Mixed-Use Declaration, as applicable, monitoring compliance with the provisions of the Commercial Declaration and Mixed-Use Declaration, complying with SDMS’ reporting obligations under this Agreement to the PICs and the Town, or as otherwise may be authorized under the Commercial Declaration or Mixed-Use Declaration. 2.8. 2.6. Audits. Within 30 calendar days after the end of each calendar year, SDMS will prepare and deliver to an auditor approved in writing by the PICs all materials necessary for preparation of an audit of SDMS’ accounting of all Add-On RSFPIF Revenues received and disbursed in the immediately preceding calendar year, which audit procedures are generally described in Exhibit D. SDMS will exercise commercially reasonable efforts to cause the auditor to provide to SDMS an annual audited report setting forth the Add-On RSFPIF Revenues received and disbursed by SDMS for the preceding calendar year for delivery, within 90 calendar days after the end of the preceding calendar year, to the PICs and the Town within 90 calendar days after the end of the preceding calendar year(until the occurrence of the Tax Credit Termination and with respect to only Add-On PIF Revenues comprising any portion of the Municipal Payments). In compiling the information to be provided for the audit, SDMS may rely on information provided as required or permitted under this Agreement without any further obligation to investigate or independently verify the accuracy of such information. SDMS’ reasonable costs and expenses incurred in performing and delivering the annual audit, which reimbursement amount is a Collection Expense, will be paid from Add-On RSFPIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). At reasonable times during regular business hours, the PICs and the Town are(i) the PICs are hereby authorized to audit, or cause audits to be conducted of, SDMS’ books and records with respect to the collection and disbursement of Add-On PIF Revenues; and (ii) the Town is hereby authorized to audit, or cause audits to be conducted of, SDMS’ books and records with respect to the collection and disbursement of Add-On RSFPIF Revenues generated from Taxable Transactions. If an independent audit uncovers any deficiency in SDMS’ performance of its obligations under this Agreement, SDMS will promptly cure such deficiency and, to the extent such deficiency consists of SDMS’ failure to disburse Add-On RSFPIF Revenues to the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, due to the negligence or misconduct of SDMS, SDMS will, within 10 days after notice from the Commercial PIC, the Mixed-Use PIC and/or the Town, as applicable, deposit the full amount of such deficiency into the Asphalt Overlay Account, Town Add-On RSF Account and/or PIC Add-On RSF Account, as applicable, together with interest thereon at a rate equal to 2% above the prime rate published in the Wall Street Journal on the date of discovery of such deficiency and notice thereof to SDMS. The Party(ies) performing any such audit will bear the full costs and expense of performing such audit. SDMS’ reasonable costs and expenses incurred in connection therewith, which amount is a Collection Expense, will be paid from Add-On RSFPIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A); provided, however, that SDMS will be responsible for all costs and expenses of any audit which discloses a material deficiency in SDMS’ performance of its obligations under this Agreement to the extent such deficiency is due to the negligence or misconduct of SDMS. 11 1013284.61305311.1 1013284.DOCX SECTION 3 General 3.1. Covenants of the Parties. (a) Representations and Warranties. Each Party hereby represents and warrants to and for the benefit of the other Parties: 1. That it has full power and legal authority to enter into this Agreement; 2. That it has taken or performed all acts or actions that may be required by statute or charter to confirm its authority to execute, deliver and perform each of its obligations under this Agreement; and 3. That neither the execution and delivery of this Agreement, nor compliance with any of the terms, covenants or conditions of this Agreement will result in a violation of or default under any other agreement or contract to which it is a party or by which it is bound. (b) Information. Each Party will provide such information reasonably requested by the other Parties from time to time to allow such Parties to fulfill their respective obligations under this Agreement, the Commercial Declaration and the Mixed-Use Declaration, as applicable. (c) Cooperation. The Parties will cooperate with each other and will undertake any reasonably necessary action that is required to support or assist in the collection, remittance and reporting of all Add-On RSFPIF Revenues payable by Add-On RSFPIF Obligors pursuant to the Commercial Declaration and the Mixed-Use Declaration. 3.2. Nature of Add-On RSFPIF. The Parties acknowledge and understand that: (i) the Add-On Retail Sales FeePIF is a charge imposed pursuant to the Commercial Declaration and the Mixed-Use Declaration for the benefit of the Commercial PIC and the Mixed-Use PIC, respectively, and other beneficiaries specified therein and not through the exercise of any power by the Town; (ii) the Add-On RSFPIF Revenues are not tax revenues in any form; (iii) all Add-On RSFPIF Revenues are the property of the PICs and/or the Town, as applicable, to be used for the purposes set forth in the Annexation and Development Agreement, the Commercial Declaration and the Mixed-Use Declaration; and (iv) SDMS’ role in assisting the PICs to collect the Add-On RSFPIF Revenues is derived through this Agreement and is limited by and will be exercised only in accordance with the terms of this Agreement. 3.3. Bankruptcy of Add-On RSF Obligors. If any Party receives actual notice in writing with respect to any action in the bankruptcy of any Add-On RSFPIF Obligor, such Party will, as soon as practicable, give notice or convey copies of such notice which it received to the other Parties. 12 1013284.61305311.1 1013284.DOCX 3.4. Limitation of SDMS Duties. The duties and responsibilities of SDMS are limited to those expressly and specifically stated in this Agreement. SDMS will not be liable or responsible for any loss resulting from any investment or reinvestment made pursuant to this Agreement and made in compliance with the provisions hereof. SDMS will not be personally liable or responsible for any act which it may do or omit to do hereunder, while acting with commercially reasonable care, except for duties expressly imposed upon SDMS hereunder or as otherwise expressly provided herein. SDMS will neither be under any obligation to inquire into or be in any way responsible for the performance or nonperformance by the Commercial PIC, the Mixed-Use PIC or the Town of any of their respective obligations under this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-useUse Declaration, nor will SDMS be responsible in any manner for the recitals, statements or provisions contained in this Agreement, the Annexation and Development Agreement, the Commercial Declaration or the Mixed-Use Declaration, or in any proceedings taken in connection therewith, such recitals, statements and provisions being made solely by the Commercial PIC, the Mixed-Use PIC and the Town, as applicable. Nothing in this Agreement creates any obligation or liability on the part of SDMS to anyone other than the PICs and, the Town and TCMD. 3.5. Compensation. In consideration of SDMS’ performance of services under this Agreement, SDMS will receive the Collection Expenses as determined by the Parties and described in Exhibit E and elsewhere in this Agreement. The rates described in Exhibit E will be subject to annual adjustment by the written mutual consent of the PICs and, until the occurrence of the Tax Credit Termination, the Town, which adjustment will not require an amendment to this Agreement. No new fee schedule will become effective until 30 days after SDMS has given the PICs and, until the occurrence of the Tax Credit Termination, the Town, written notice thereof. Except with respect to specific matters expressly addressed in other provisions of this Agreement to the contrary, all Collection Expenses will be paid from Add-On RSFPIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). No later than the 20th day of each calendar month, SDMS will submit to the PICs and, until the occurrence of the Tax Credit Termination, the Town, a billing statement of the total Collection Expenses incurred by SDMS during the prior calendar month (each, a “Monthly Fee Statement”). The PICs and, which will include a calculation of the portion of the Collection Expenses attributable to (i) the collection of the Add-On PIF Revenues comprising the Municipal Payments; and (ii) the portion of the Add-On PIF Revenues not comprising the Municipal Payments. Any general Collection Expenses that are not reasonably capable of being attributed to either clause (i) or clause (ii) above (i.e., general collection and deposit of Add-On PIF Revenues, production and distribution of Monthly Add-On PIF Reports, etc.) will be attributed to clauses (i) and (ii) above prorata based on the amount of Add-On PIF Revenues comprising clause (i) and comprising clause (ii) as a percentage of the total amount of Add-On PIF Revenues collected. The PICs and, as applicable, the Town, will have 20 days from receipt of the applicable Monthly Fee Statement to approve, reject or approve in part and reject in part the Monthly Fee Statement in writing to SDMS. If the PICs and, as applicable, the Town, both fail to provide such written notice to SDMS on or before the expiration of such 20-day period, the Monthly Fee Statement will be deemed approved by both the PICs and, as applicable, the Town. If the PICs and, as applicable, the Town, approve the applicable Monthly Fee Statement, SDMS may deduct, and is hereby expressly authorized to deduct, from the Municipal PaymentsAdd-On PIF Revenues the applicable Collection Expense as set forth in such approved Monthly Fee 13 1013284.61305311.1 1013284.DOCX Statement. If the Commercial PIC, Mixed-Use PIC and/or the Town, as applicable, approve in whole or in part the applicable Monthly Fee Statement, SDMS may deduct, and is hereby expressly authorized to deduct, from the Municipal PaymentsAdd-On PIF Revenues the portion of the Collection Expenses set forth in such Monthly Fee Statement approved by the PICs and, as applicable, the Town, if any. With respect to resolution of any Collection Expenses rejected in whole or in part by the Commercial PIC, Mixed-Use PIC and/or the Town, the applicable Parties will proceed pursuant to Section 3.20. Without limitation of the foregoing: (a) Prior to and including the day of the Tax Credit Termination, theThe Town will be solely responsible for payment of SDMS’ Collection Expenses for administration of the portion of the Add-On RSFPIF Revenues comprising the Municipal Payments pursuant to this Agreement. (b) From and after the day after the occurrence of the Tax Credit Termination, the PICThe PICs will be solely responsible for payment of SDMS’ Collection Expenses for administration of the portion of the Add-On RSFPIF Revenues not comprising the Municipal Payments pursuant to this Agreement. (c) The PICs will be solely responsible for payment of SDMS’ reasonable costs and expenses, including attorneys’ fees, incurred prior to execution of this Agreement for negotiation of this Agreement and for activities in furtherance of entering into this Agreement, such payment to be made within 30 days after receipt of SDMS’ invoice therefor. 3.6. Resignation; Removal. (a) General. Notwithstanding any provision to the contrary in this Agreement, SDMS’ obligation to remit to the PICs and the Town any and all Add-On RSFPIF Revenues received by SDMS pursuant to the terms and conditions of this Agreement will survive any resignation or removal of SDMS pursuant to this Section 3.6 until all such Add-On RSFPIF Revenues have been remitted to the PICs and/or the Town, as applicable, or control over such funds has been transferred to a successor Add-On RSFPIF Collection Agent. No resignation or removal of SDMS will take effect until a successor Add-On RSFPIF Collection Agent has been appointed by the PICs, with the consent of the Town; provided, however, if no successor is appointed by the end of 90 days after delivery of written notice to SDMS of such removal, SDMS may petition a court of competent jurisdiction to appoint a successor. (b) SDMS Resignation. SDMS may resign as the PICs’ and the Town’s agent under this Agreement by submitting a written notice of resignation to the PICs and the Town, given not less than 90 days before the date upon which such resignation is intended to take effect. SDMS’ resignation will be effective on the resignation date set forth in such notice. Notwithstanding the foregoing, except in the event the Commercial PIC, Mixed-Use PIC and/or the Town have rejected Monthly Fee Statements in whole or in part pursuant to Section 3.5, if SDMS’ Collection Expenses have not been paid for a period of two consecutive months, SDMS may resign as the PICs’ and the Town’s agent under this agreement by submitting a written notice of resignation to the PICs and the 14 1013284.61305311.1 1013284.DOCX Town, given not less than 30 days before the date upon which such resignation is intended to take effect and SDMS’ resignation will be effective on the resignation date set forth in such notice; provided, however, if the Commercial PIC, Mixed-Use PIC and/or the Town cure such default within such 30-day period, SDMS’ written notice of resignation will be deemed null and void and of no further force or effect. (c) SDMS Removal. The PICs, with prior written consent of the Town prior to occurrence of the Tax Credit Termination, may remove SDMS as the PICs’ and the Town’s agent for collection of the Add-On RSFPIF Revenues at any time with or without cause. Any such removal action will be effective immediately upon delivery of written notice by the PICs of such removal to SDMS unless the notice specifies a later removal date. 3.7. Assignment; Binding Effect. Except for the collateral assignment of this Agreement by the Commercial PIC and/or the Mixed-Use PIC to any secured lender of the Commercial PIC or the Mixed-Use PIC, as applicable, which assignment will not require the consent of any other Party, this Agreement will not be assigned by any Party for any reason other than to a successor by operation of law or with the prior written consent of the other Parties. This Agreement will inure to the benefit of and will be binding upon the Parties and their duly authorized successors and assigns. Whenever in this Agreement the Commercial PIC, the Mixed-Use PIC, the Town or SDMS is named or is referred to, such provision is deemed to include any successor of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, respectively, immediate or intermediate, whether so expressed or not. Any corporation or other legal entity into which a Party may be merged or converted or with which a Party may be consolidated or any corporation or other legal entity resulting from any merger, conversion, sale, consolidation or transfer to which that Party may be a party or any corporation or other legal entity to which a Party may sell or transfer all or substantially all of its assets will be the successor to such Party without the execution or filing of any document or any further act, anything herein to the contrary notwithstanding. All of the stipulations, obligations, and agreements by or on behalf of and other provisions for the benefit of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS contained in this Agreement (a) will bind and inure to the benefit of any such successor, and (b) will bind and inure to the benefit of any officer, board, council, agent, or instrumentality to whom or to which there will be transferred by or in accordance with law any relevant right, power, or duty of the Commercial PIC, the Mixed-Use PIC, the Town or SDMS, or of their respective successors. 3.8. Third-Party Beneficiaries. Enforcement of the terms and conditions of this Agreement, and all rights of action relating to such enforcement, will be strictly reserved to the Parties and their duly authorized successors and assigns, and nothing contained in this Agreement will give or allow any such claim or right of action by any other Person with respect to this Agreement. 3.9. 3.8. Amendment. This Agreement may only be amended, changed, modified or altered by an instrument in writing duly executed by each Party. 3.10. 3.9. Computation of Time. In computing a period of days, the first day will be excluded and the last day will be included. If the last day of any period is not a business day or 15 1013284.61305311.1 1013284.DOCX is a federal holiday, the period will be extended to include the next succeeding business day which is not a federal holiday. If a number of months is to be computed by counting the months from a particular day, the period will end on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period will end on the last day of that month. 3.10. Payments Due on a Day other than a Business Day. If the date for making any payment or the last day for performance of any act or the exercising of any right as provided in this Agreement will be a day other than a business dayfalls on a federal holiday or on a Saturday or Sunday, such payment may be made, or such act performed, or such right may be exercised on the next succeeding business day which is not a federal holiday with the same force and effect as if done on the nominal date provided in this Agreement. 3.11. Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, such holding will not invalidate or render unenforceable any other provision hereof and this Agreement will be reformed to most completely effectuate the intent of the Parties as reflected in the Agreement prior to such severance, including the intent of the severed provision to the extent such provision may be so reformed to cure the invalidity or unenforceability. 3.12. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which will be an original and all of which will constitute but one and the same instrument. 3.13. Applicable Law. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 3.14. No Indemnification by SDMS. SDMS will have no obligation to indemnify, hold harmless or defend the PICs, the Town or any other Person for any purpose whatsoever. 3.15. Indemnification by PICs and the Town. The PICs, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all claims, liabilities, losses, actions, suits or proceedings at law or in equity, or any other expenses, fees, or charges of any character or nature, which it may incur or with which it may be threatened under this Agreement arising from or out of any claim in connection with the performance of any of the obligations of SDMS to be performed under this Agreement (for purposes of this Section 3.15, collectively, “Liabilities”) except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees. To the extent permitted by applicable law, the Town, by execution of this Agreement by its authorized representative, each hereby agrees to indemnify, defend and hold SDMS, its officers, directors, stockholders, and employees harmless from any and all Liabilities except to the extent such Liabilities are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees. 3.16. Relationship to Declarations and Annexation and Development Agreement. The Commercial PIC acknowledges that its performance under this Agreement is subject in all 16 1013284.61305311.1 1013284.DOCX respects to the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement, that the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Commercial Declaration and the Annexation and Development Agreement. The Mixed-Use PIC acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement, that the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Mixed-Use Declaration and the Annexation and Development Agreement. The Town acknowledges that its performance under this Agreement is subject in all respects to the terms and conditions of the Declarations and the Annexation and Development Agreement, that the terms and conditions of the Declarations and the Annexation and Development Agreement will control over any conflicting terms and conditions of this Agreement, and represents and warrants to SDMS that in performing its duties and exercising its rights under this Agreement it will comply with the terms and conditions of the Declarations and the Annexation and Development Agreement. As such, SDMS is authorized to presume that all actions taken by the PICs and the Town in connection with this Agreement comply with the terms and conditions of the Declarations and the Annexation and Development Agreement and to act accordingly in performing its obligations under this Agreement. 3.17. Captions. The captions or headings herein are for convenience only and in no way define, limit or describe the scope or intent of any provision or Section of this Agreement. 3.18. Time of the Essence. Time is of the essence in the performance of the obligations from time to time imposed upon SDMS by this Agreement. 3.19. Notice. Any notice or other information to be given hereunder will be delivered personally or mailed postage prepaid, return receipt requested, to the following addresses: If to SDMS: Special District Management Services, Inc. 141 Union Boulevard Suite 150 Lakewood, Colorado 80228 Attn: Lisa Jacoby With a required copy to: Krendl Krendl Sachnoff & Way, P.C. 370 17th Street, Suite 5350 Denver, Colorado 80202 Attn: Cathy S. Krendl 17 1013284.61305311.1 1013284.DOCX If to Commercial PIC: The Village (at Avon) Commercial Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Munsey L. AyersKimberly Martin If to Mixed-Use PIC: The Village (at Avon) Mixed-Use Public Improvement Company P.O. Box 9429 Avon, Colorado 81620 Attn: Dan Leary With required copy to: Otten Johnson Robinson Neff + Ragonetti PC 950 17th Street, Suite 1600 Denver, Colorado 80202 Attn: Munsey L. AyersKimberly Martin If to Town: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager With required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Attorney or such other address as a Party may, by written notice to the other Party or Parties, hereafter specify. Any notice will be deemed to be given upon mailing. The Parties may also specify, in writing, a different method for conveying notices or information. 3.20. Dispute Resolution. Any dispute arising under this Agreement that is not resolved by the applicable Parties, within 45 days or such other period as may be specifically set forth in this Agreement may be submitted by any of the Parties, (including SDMS,) for binding arbitration to a single arbiter of the Judicial Arbiter Group, 1601 Blake Street, Suite 400 Denver, Colorado 80202, utilizing a trial to the court model under streamlined rules and procedures to be mutually agreed upon by the applicable Parties or, if the Partiessuch Persons are not able to agree, as directed by the arbiter. The arbiter’s decision will be final and non-appealable to the 18 1013284.61305311.1 1013284.DOCX courts. Except to the extent such fees and costs are caused by the negligence, willful misconduct or material breach of this Agreement by SDMS, its officers or employees, all of SDMS’ reasonable attorneys’ fees and costs arising from an arbitration, which is a Collection Expense, will be paid from Add-On RSFPIF Revenues (the Municipal Payments are net of Collection Expenses as provided in paragraph 33 of Exhibit A). [Signature Pages Follow This Page] 19 1013284.61305311.1 1013284.DOCX IN WITNESS WHEREOF, the Commercial PIC, the Mixed-Use PIC, the Town and SDMS have caused this Agreement to be executed as of the day and year first above written. COMMERCIAL PIC: THE VILLAGE (AT AVON) COMMERCIAL PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: 20 1013284.61305311.1 1013284.DOCX MIXED-USE PIC: THE VILLAGE (AT AVON) MIXED-USE PUBLIC IMPROVEMENT COMPANY, a Colorado nonprofit corporation By: Name: Title: 21 1013284.61305311.1 1013284.DOCX TOWN: TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Approved as to legal form by: Eric J. Heil, Esq., Town Attorney 22 1013284.61305311.1 1013284.DOCX SDMS: SPECIAL DISTRICT MANAGEMENT SERVICES, INC., a Colorado corporation By: Name: Title: A-1 1013284.61305311.1 1013284.DOCX EXHIBIT A Definitions For purposes of the attached Add-On RSFPIF Collection Services Agreement, the following terms have the following meanings, unless the context requires otherwise. Further, unless the context requires otherwise, the singular of any term includes the plural, and any reference to a Section or Exhibit is to a Section or Exhibit of the attached Add-On RSFPIF Collection Services Agreement. 1. Add-On Retail Sales Fee. In accordance with the Declarations, the component of the Retail Sales Fee (as defined in the Declarations), which is set at rate(s) to be established by the Commercial PIC and the Mixed-Use PIC, as applicable, as declarant under the Commercial Declaration and the Mixed-Use Declaration, respectively, in accordance with the terms, limitations and conditions of the Commercial Declaration or the Mixed-Use Declaration, as applicable, and the Annexation and Development Agreement, and which will be applied to Taxable Transactions (retail sales transactions only and no other Taxable Transactions) initiated, consummated, conducted, transacted or otherwise occurring from or within any portion of the Property, but which is not offset by a credit against the Sales Tax. For purposes of communications to Add-On RSF Obligors and/or the general public, the PICs may designate the Add-On Retail Sales Fee as the “Retail Sales Fee” or “RSF” or such other term as the PICs may determine and designate in writing to SDMS, in which case the applicable forms will be modified to reflect the desired terminology and the term Add-On Retail Sales Fee as used in this Agreement will be construed in all instances to refer to such term as the PICs have designated from time to time. 1. 2. Add-On RSFPIF Collection Agent. The entity engaged by the PICs and the Town as the collecting agent for disbursement and accounting of the Add-On RSFPIF Revenues pursuant to this Agreement as in effect from time to time, and which is authorized to undertake the duties of the “Add-On RSF Collection Agent” as defined in the Annexation and Development Agreement. 3. Add-On RSF Obligor List. As defined in Section 1.2. 4. Add-On RSF Obligor(s). Any Person(s) who, by virtue of being the seller in an Add-On RSF Retail Activity transaction is obligated to collect and remit an Add-On Retail Sales Fee pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as applicable. 2. 5. Add-On RSFPIF Reporting Form(s). A report of Add-On RSFPIF Revenues payable by each Add-On RSFPIF Obligor, in substantially the formforms set forth in Exhibit B (or as otherwise required by the Information from time to time, a copy of which form is delivered to SDMS by the PICs in advance of its effective date) which, together with remittance of the Add-On RSFPIF Revenues payable and a copy of the corresponding Town Sales Tax report, Town Public Accommodations Tax report or Town Property Transfer Tax report, as applicable, is to be prepared by each Add-On RSFPIF Obligor and delivered to SDMS on or before each Fee Remittance Date for the immediately preceding Reporting Period. A-2 1013284.61305311.1 1013284.DOCX 6. Add-On RSF Retail Activity(ies). The following retail sales transactions which are subject to the Add-On Retail Sales Fee pursuant to the Declarations: any exchange of goods or services for money or other media of exchange that is a Taxable Transaction (retail sales transactions only and no other Taxable Transactions) and is initiated, consummated, conducted, transacted or otherwise occurs from or within any portion of the Property. 3. 7. Add-On RSF Revenues. The revenues generated from imposition and collection of the Add-On Retail Sales Fee pursuant to the terms of the Declarations, together with all interest earned thereon while on deposit with SDMSPIF Revenues. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 4. 8. Agreement. As defined in the introductory paragraph, this Add-On Retail Sales FeePIF Collection Services Agreement between the Parties, as amended and supplemented from time to time. 5. 9. Annexation and Development Agreement. The Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) dated as of _____________, 20____having an “Execution Date” (as defined therein) of October 22, 2013 and entered into by and among the Town, Traer Creek Metropolitan District, Traer Creek LLC and, with respect to certain portions of the Property, EMD Limited Liability Company, all as parties, and Avon Urban Renewal Authority, the PICs and, with respect to certain portions of the Property, EMD Limited Liability Company, all as limited parties, and recorded in the Records on or about even date herewith, as amended from time to time. 6. 10. Asphalt Overlay Account. The restricted escrow account established pursuant to the Asphalt Overlay Agreement into which certain funds are to be deposited for asphalt overlays of public roads in the Property in accordance with the terms and conditions set forth in the Annexation and Development Agreement and the Asphalt Overlay Agreement. 7. 11. Asphalt Overlay Agreement. That certain Asphalt Overlay Escrow Account Agreement dated as of __________, 20____ and entered into by and among the Town, Traer Creek Metropolitan District and FirstBank (Avon Branch), which establishes the terms and conditions upon which funds will be deposited into, held in escrow, and disbursed from the Asphalt Overlay Account. 8. 12. Collection Expense. Any and all fees (including without limitation, Stand-By Fees), costs, expenses, compensation, reimbursements (including without limitation, dispute resolution costs and charges for out-of-pocket expenses such as postage, facsimiles, letterhead, envelopes, printing, etc. for which a receipt is submitted with the applicable Monthly Fee Statement) and other charges due and owing to SDMS in connection with and pursuant to the terms of this Agreement. 9. 13. Commercial Declarant. Traer Creek-RP, LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Commercial Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Commercial Declaration. A-3 1013284.61305311.1 1013284.DOCX 10. 14. Commercial Declaration. That certain Declaration of Covenants for The Village (at Avon) Commercial Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795012, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on June 10, 2008 at Reception No.200812111, as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas made as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321543, and as amended by that certain Third Amendment to Declaration of Covenants for The Village (at Avon) Commercial Areas recorded in the Records on _________, 20___ at Reception No. ____________, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 11. 15. Commercial PIC. As defined in the introductory paragraph of this Agreement. 12. 16. Commercial Property. The property defined as the “Property” in the Commercial Declaration and legally described in Exhibit A to the Commercial Declaration, upon which the Commercial Declarant and its affiliates are developing and intend to further develop a phased, commercial and retail development. 17. Credit Retail Sales Fee. As defined in Recital B and Recital C, as applicable. 13. 18. Credit RSF Revenues. The revenues generated from the imposition of the Credit Retail Sales Fee (as defined in the Declarations)PIF. As defined in the Commercial Declaration or the Mixed-Use Declaration, as applicable. 14. 19. Declarations. Collectively, the Commercial Declaration and the Mixed-Use Declaration. 15. 20. Director of Finance. The director of finance for the Town, provided that if there is no director of finance for the Town at any time for whatever reason, the “Director of Finance” for all purposes under this Agreement will refer to the Town Manager or the person designated by the Town Manager in writing to the PICs and SDMS. 16. 21. Effective Date. As defined in the introductory paragraph of this Agreement. 17. 22. Exhibits. Individually, one of the following Exhibits to this Agreement and/or, collectively, all of the following Exhibits to this Agreement, as the context dictates, which Exhibits are incorporated into and made a part of this Agreement: Exhibit A: Definitions Exhibit B: Form of Add-On RSFPIF Reporting FormForms Exhibit C: Form of Monthly Add-On RSF ReportPIF Reports Exhibit D: Audit Procedures A-4 1013284.61305311.1 1013284.DOCX Exhibit E: SDMS Fee Schedule 18. 23. Fee Remittance Date. With respect to Add-On RSFPIF Revenue payments to be made by Add-On RSFPIF Obligors, the date on which the corresponding Sales Tax amount, Public Accommodations Tax amount or Property Transfer Tax amount, as applicable, is due and payable to the Town. 19. 24. Funding Termination. The occurrence of the earlier of: (i) 80,000 square feet of additional development of “Commercial Uses” (as defined in the Amended and Restated PUD Guide for The Village (at Avon)) have been issued a temporary or permanent certificate of occupancy; or (ii) the total annual Taxable Transactions (as defined in the Annexation and Development Agreement) have increased by at least $20,000,000 over the actual total annual Taxable Transactions (as defined in the Annexation and Development Agreement) in the year 2011, all as more particularly set forth in Section 6.6(b) of the Annexation and Development Agreement. 20. 25. Information. Any written information or guidelines, as amended and supplemented from time to time, prepared by the PICs and the Town, with the approval of the Commercial Declarant and the Mixed-Use Declarant, regarding the calculation, payment and reporting of the Add-On Retail Sales FeePIF. 21. 26. Joint Notice. As defined in Section 1.4(b)1(B) of this Agreement. 22. 27. Mixed-Use Declarant. Traer Creek LLC, a Colorado limited liability company, or any successor-in-interest or transferee who takes title to any portion of the Mixed-Use Property for the purpose of development and/or sale and is designated as Declarant in an instrument recorded in the Records, as more particularly set forth in the Mixed-Use Declaration. 23. 28. Mixed-Use Declaration. That certain Declaration of Covenants for The Village (at Avon) Mixed-Use Areas made as of May 8, 2002 by Traer Creek LLC, a Colorado limited liability company, as declarant, and recorded in the Records on May 8, 2002 at Reception No. 795013, as amended by that certain First Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas dated as of October 21, 2013 and recorded in the Records on October 24, 2013 at Reception No. 201321544, and as amended by that certain Second Amendment to Declaration of Covenants for The Village (at Avon) Mixed-Use Areas recorded in the Records on __________, 20___ at Reception No. ______________, as amended, supplemented or replaced from time to time in accordance with the terms and conditions set forth therein. 24. 29. Mixed-Use PIC. As defined in the introductory paragraph of this Agreement. 25. 30. Mixed-Use Property. The property defined as the “Property” in the Mixed-Use Declaration and legally described in Exhibit A to the Mixed-Use Declaration, upon which the Mixed-Use Declarant and its affiliates are developing and intend to further develop a phased, mixed-use development. A-5 1013284.61305311.1 1013284.DOCX 26. 31. Monthly Add-On RSF ReportPIF Reports. The written reportreports that SDMS is required under the terms of this Agreement to prepare for each calendar month during the term of this Agreement and distribute to the PICs and, as applicable, the Town, which reportreports will be substantially in the form and contain the information set forth in Exhibit C (or as otherwise mutually agreed upon in writing by the Parties, which will not require an amendment to this Agreement; provided, however, the Town’s approval will not be required for Monthly Add-On PIF Reports relating to the renting, letting or provision of Accommodations/Lodging Rooms or relating to Real Estate Transfers). 27. 32. Monthly Fee Statement. As defined in Section 3.5 of this Agreement. 28. 33. Municipal Payments. The portion of the Add-On RSFPIF Revenues which the Town is entitled to receive and are actually collected by SDMS as more particularly described in the Annexation and Development Agreement. The Municipal Payments are calculated as follows: As of the Effective Date, the rate of the Add-On Retail Sales FeePIF on Taxable Transactions is 0.75%. The net proceeds, after adjustment for (deduction of) the Collection Expenses related or attributable to such portion of the Add-On PIF Revenues and application of any other adjustments to such portion of the Add-On RSFPIF Revenues as set forth in the Annexation and Development Agreement, of the Add-On RSFPIF Revenues resulting from imposition of the 0.75% rate to Add-On RSF Retail Activities transactionsTaxable Transactions occurring within the Property will constitute the Municipal Payments. If the Town increases the Sales Tax rate on Add-On RSF Retail Activities transactions above 4.0% during any period for which Municipal Payments are to be remitted to the Town, the portion of the Add-On RSFPIF Revenues which will be construed to be Municipal Payments will be reduced in the same degree as any Sales Tax rate on Add-On RSF Retail Activities transactions increase above 4.0%. For example, if the Town increases its Sales Tax rate on Add-On RSF Retail Activities transactions by 0.25% (from 4.0% to 4.25%), the portion of the Add-On RSFPIF Revenues construed to be Municipal Payments will be that amount equivalent to a reduction of 0.25% in the rate of the Add-On Retail Sales FeePIF on Taxable Transactions (i.e., the revenue realized from a rate of 0.50% rather than the revenue realized from a rate of 0.75%). 29. 34. Party(ies). Individually, a signatory to this Agreement and, collectively, all signatories to this Agreement. 30. 35. Person. Any individual, partnership, corporation, limited liability company, association, trust or other type of entity or organization. 31. 36. PIC Add-On RSF Account. The bank account established or to be established for the benefit of the PICs for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On RSFPIF Revenues received from Add-On RSFPIF Obligors who have engaged in Add-On RSF Retail Activities within the PropertyTaxable Transactions, in the renting, letting or provision of Accommodations/Lodging Rooms or in Real Property Transfers within the applicable Reporting Period. 32. 37. PICs. Collectively, the Commercial PIC and the Mixed-Use PIC. 33. PIF Obligor List. As defined in Section 1.2. A-6 1013284.61305311.1 1013284.DOCX 34. PIF Obligor(s). Any Person(s) who, by virtue of being the seller in a Taxable Transaction; a renter, letter or provider of Accommodations/Lodging Rooms; or the transferee in a Real Estate Transfer, is obligated to collect, as applicable, and remit an Add-On PIF pursuant to the terms of the Commercial Declaration or Mixed-Use Declaration, as applicable. 35. 38. Property. Collectively, the Commercial Property and the Mixed-Use Property. 36. Property Transfer Tax(es). The tax levied by the Town pursuant to Chapter 3.12 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 37. Public Accommodations Tax(es). The tax levied by the Town pursuant to Chapter 3.28 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 38. 39. Records. The real property records of the Clerk and Recorder for Eagle County, Colorado. 39. 40. Reporting Period. Pursuant to applicable Town regulations, the applicable period of time (which may be monthly, quarterly or such other frequency as the applicable regulations may require) with respect to which (i) a Sales Tax obligor is required to file a periodic report of Taxable Transactions and remit Sales Taxes thereon; (ii) a Public Accommodation Tax obligor is required to file a periodic report of renting, letting or provision of Accommodations/Lodging Rooms and remit Public Accommodations Taxes thereon; or (iii) a Property Transfer Tax obligor is required to file a report of a Real Estate Transfer and remit Property Transfer Taxes thereon. 41. Retail Sales Fee or RSF. Is defined in the Declarations. 42. Sales Tax(es). The tax levied by the Town pursuant to the Sales Tax Regulation. 40. 43. Sales Tax Regulation. Sales Tax(es). The tax levied by the Town pursuant to Chapter 3.08 of the Town Municipal Code, and any regulations promulgated pursuant thereto, as such chapter may be amended, restated or replaced from time to time. 41. 44. SDMS. As defined in the introductory paragraph of this Agreement, Special District Management Services, Inc., a Colorado corporation, together with its successors and any of its assigns as permitted under the terms and conditions of this Agreement, which, pursuant to this Agreement, is the “Add-On RSF Collection Agent” as contemplated in the Annexation and Development Agreement. 42. 45. Stand-By Fees. As defined in Exhibit E. 43. 46. Taxable Transaction. Any transaction by which a Person acquires for any consideration or uses within the Town any tangible personal property or service that is subject to the Sales Tax or would be subject to the Sales Tax but for any credit of such tax the Town may make pursuant to the Annexation and Development Agreement and, in addition, any other A-7 1013284.61305311.1 1013284.DOCX transaction for, or the use of, any personal property or service thatAs defined in the Commercial PIC and/or the Mixed-Use PIC may designate from time to time as a Taxable Transaction. If the Town stops levying the Sales Tax generally, the term “Taxable Transaction” will mean any transaction by which a Person acquires for any consideration or uses within the Town any tangible personal property or service that would have been subject to the version of the Sales Tax last in effect (but for any credit of such tax the Town may have been making pursuant to the Annexation and Development Agreement) and, in addition, any other transaction for, or the use of, any personal property or service that the Commercial PIC and/or Mixed-Use PIC may designate from time to time as a Taxable Transaction.Declaration or the Mixed-Use Declaration, as applicable. 44. 47. Tax Credit Termination. The occurrence of the termination of the Town’s obligation to provide tax credits to offset, in whole or in part, the effect of, among other matters, the Credit Retail Sales Fee (as defined in the Declarations)Sales Tax, the Public Accommodations Tax, as more particularly described in the Annexation and Development Agreement, which obligation is implemented by and codified in the Town Municipal Code (as in effect on the Effective Date) at Sections 3.08.035 (with respect to retail sales), 3.12.065 (with respect to real estate transfers) and 3.28.075 (with respect to public accommodations). 45. 48. Town. As defined in the introductory paragraph of this Agreement. 46. 49. Town Add-On RSF Account. The bank account established or to be established for the benefit of the Town for the purpose of SDMS depositing, in accordance with the requirements of Section 1.4, Add-On RSFPIF Revenues comprising all or a portion of the Municipal Payments received from Add-On RSFPIF Obligors who have engaged in Add-On RSF Retail ActivitiesTaxable Transactions within the Property within the applicable Reporting Period. B-1 1013284.61305311.1 1013284.DOCX EXHIBIT B Form of Add-On RSFPIF Reporting FormForms   B-2 1013284.61305311.1 1013284.DOCX As of the Effective Date, the PICs have not imposed the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms. If, after the Effective Date, the Commercial PIC and/or the Mixed-Use PIC impose the Add-On PIF on Real Estate Transfers or the renting, letting or provision of Accommodations/Lodging Rooms, the applicable PIC(s) will provide such Information and the applicable Add-On PIF Reporting Forms as contemplated in paragraph 2 of Exhibit A. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 24, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-24-2014 Minutes.doc Page 1 1. CALL TO ORDER & ROLL CALL Mayor Carroll called the meeting to order at 6:15 PM. A roll call was taken and Council members present were Buz Reynolds, Jake Wolf, Jennie Fancher and Chris Evans. Dave Dantas was absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Senior Planner Matt Pielsticker, Director of Economic Initiatives Susan Fairweather, Director of Finance Scott Wright and Town Clerk Debbie Hoppe as well as members from the public. 2. APPROVAL OF AGENDA Mayor Carroll asked to add item 8.4 Tails Update. Mayor Pro Tem Fancher asked to add item 8.5 Wildland Fire Module Update. Council agreed to add items. 3. SWEARING IN AND SEATING OF NEW COUNCIL MEMBER MATT GENNETT (MUNICIPAL JUDGE BUCK ALLEN) Council Gennett took his seat as an Avon Councilor. 4. PUBLIC COMMENT Katy Klingbeil and Maia Alvarez spoke about handicapped ramps. 5. ACTION ITEMS 5.1. FIRST READING OF ORDINANCE 14-10 - CAPITAL LEASE FINANCING FOR SNOW PLOW (ASSISTANT TOWN MANAGER SCOTT WRIGHT) Councilor Wolf moved to approve Ordinance 14-10, Capital Lease Financing for Snow Plow; Councilor Fancher seconded the motion and it was approved unanimously by those present. (Councilor Dantas absent) 5.2. APPOINTMENT OF VACANT COUNCIL SEATS ON REGIONAL BOARDS (TOWN CLERK DEBBIE HOPPE) 5.2.1. VAIL VALLEY PARTNERSHIP ADVISORY BOARD Councilor Wolf was appointed to the Vail Valley Partnership Advisory Board. 5.2.2. ECONOMIC DEVELOPMENT SUB-COMMITTEE Mayor Pro Tem Fancher was appointed to the Economic Development Sub-Committee; Councilor Evans remains on the Economic Development Sub-Committee. Todd Goulding also remains active on Economic Development Sub-Committee. 5.2.3. EAGLE RIVER WATER & SANITATION DISTRICT LIAISON 5.3. MOTION TO APPROVE AN OUTSIDE DATE EXTENSION NOTICE(S) TO NOT LATER THAN OCTOBER 15, 2014 (TOWN ATTORNEY ERIC HEIL) Councilor Evans moved to approve Outside Date Extension Notice(s) to not later than October 15, 2014; Councilor Reynolds seconded the motion and it was passed unanimously by those present. (Councilor Dantas absent) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 24, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-24-2014 Minutes.doc Page 2 5.4. MINUTES FROM JUNE 10, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) Councilor Reynolds moved to approve Minutes from June 10, 2014 meeting; Councilor Evans seconded the motion and it was passed unanimously by those present. (Councilor Dantas absent, Councilor Gennett abstained) 6. WORK SESSION 6.1. AVON RECREATION CENTER EXPANSION AND RECREATIONAL IMPROVEMENTS IN NOTTINGHAM PARK – OPEN HOUSE PRESENTATION MATERIALS, INCLUDING REVIEW OF ALTERNATIVES FOR BOND ISSUE (TOWN MANAGER VIRGINIA EGGER, PARKS & RECREATION SUPERINTENDENT JOHN CURUTCHET, DIRECTOR OF ECONOMIC INITIATIVES SUSAN FAIRWEATHER) 6.2. REVIEW OF BEAVER CREEK BOULEVARD BIKE LANE MARKINGS (PLANNING MANAGER MATT PIELSTICKER) 6.3.STAFF PRESENTATION: POLICE CHIEF BOB TICER: POLICY REVIEW AND DIRECTION FOR TRAFFIC PATROL AND TICKETING 7. WRITTEN REPORTS 7.1. MONTHLY FINANCIAL REPORT 7.2. GIFT REPORTING DISCLOSURE REPORT FOR HOFFMANN COMMERCIAL REAL ESTATE REDS, WHITES & BREWS AMERICAN MADE FESTIVAL 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8.1. VILAR PERFORMING ARTS CENTER MEETING (COUNCILOR WOLF) 8.2. VAG STAGE UPDATE (COUNCILOR WOLF AND COUNCILOR DANTAS) 8.3.AVON POSTMASTER MEETING (COUNCILOR WOLF) Councilor Dantas joined the meeting at 7:40 pm. 9. COUNCIL COMMENTS Mayor Pro Tem Fancher commented on landscaping at Eagle Bend apartments located on Stonebridge and Hurd Lane. 10. MAYOR REPORT AND FUTURE AGENDA ITEMS 11. EXECUTIVE SESSION Councilor Evans moved to meet in Executive Session at 8:35 p.m. for a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §24-6-402(2)(E) related to the Upper Eagle Regional Water Authority Master Agreement and for legal advice on legal representation under C.R.S. §24-6-402(2)(b); the motion was seconded by Councilor Wolf and it passed unanimously. 11.1. DISCUSSION TO DETERMINE POSITIONS RELATIVE TO MATTERS THAT MAY BE SUBJECT TO NEGOTIATIONS, DEVELOPING STRATEGY FOR NEGOTIATIONS, AND/OR INSTRUCTING NEGOTIATORS, UNDER C.R.S. §24-6- 402(2)(E) RELATED TO THE UPPER EAGLE REGIONAL WATER AUTHORITY MASTER AGREEMENT TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 24, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-24-2014 Minutes.doc Page 3 11.2. FOR A CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE ON LEGAL REPRESENTATION UNDER C.R.S. §24-6-402(2)(B) Councilor Evans moved to end Executive Session; Mayor Pro Tem Fancher seconded the motion and it passed unanimously. Executive Session adjourned at 10:06 pm. 12. ACTION ITEM 12.1. RESOLUTION 14-14 APPROVING AMENDMENTS TO MASTER SERVICE AGREEMENTS WITH UERWA (TOWN ATTORNEY ERIC HEIL) Councilor Reynolds moved to approve Resolution 14-14 approving amendments to Master Service Agreements with UERWA; Councilor Wolf seconded the motion and it was passed unanimously. 12.2. APPROVAL OF WATER COURT FILING FOR AVON’S WHITEWATER PARK (TOWN WATER ATTORNEY JAY MONTGOMERY) Councilor Evans moved to approve Water Court Filing for Avon’s Whitewater Park; Councilor Wolf seconded the motion and it was passed unanimously. There being no further business to come before the Council, the regular meeting adjourned at 10:11 pm. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ Matt Gennett ________________________________ RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Matt Pielsticker, AICP, Planning Manager Date: July 3, 2014 Agenda Topic: Review of Recommended Process for Trails Committee Solicitation and Appointment Summary During Open Houses, which were held in May for the proposed trails on the West Avon Preserve, it was discussed that a formal trails’ advisory committee could be formed. This trails advisory committee is found in the Town of Avon Recreational Trails Master Plan (2009). The Town of Avon Recreational Trails Master Plan, or “Trails Master Plan,” is an advisory document that is a sub-plan of the Avon Comprehensive Plan. It recommends the formation of a Recreational Trails Advisory Group to “direct trail planning, design, construction, and maintenance.” The Trails Plan goes on to recommend the make-up of the Advisory Group and their general functions. An excerpt from the Trails Master Plan is attached hereto (Attachment A). This Memorandum summarizes Town staff’s recommended process for solicitation and Council appointment of a Recreational Trails Advisory Group. Recommendations 1. July 15th – Council reviews and affirms the need for the Recreational Trails Advisory Group, number (5) and duties as described in the Trails Master Plan and sets August 12th as the date to take action on a resolution establishing the Recreational Trails Advisory Group. Two- year staggered terms are recommended. 2. Town Staff solicits through the Vail Daily newspaper a five (5) member, volunteer Recreational Trails Advisory Group composed of the following: a. One (1) full-time resident of the Wildridge Community b. One (1) full-time resident of the Mountain Star Community c. One (1) full-time resident of the Singletree Community d. Two (2) full-time residents from the Town of Avon 3. Interested applicants should provide a letter of interest and statement of residency by not later than August 5th, 5:00 p.m. 4. Town Council interviews applicants at its August 12th meeting; appointing the top three applicants to two-year terms; and two applicants to one-year terms. Thereafter, all Recreational Trails Advisory Group members will be appointed to a two-year term. 5. Recreational Trails Advisory Group, assisted by Community Development staff, begin meeting and develop work plan to carry out duties. Avon Recreational Trails Master Plan     Page 2  Vision Statement The vision guiding the Town of Avon’s Recreational Trails Master Plan was developed from input provided through public consultations held in August 2006 and August 2008. At a general level, the vision expresses what people agree needs to be protected or retained and what may be accomplished. The vision for the Town of Avon is fundamentally one of sustainability – of respecting natural systems and managing uses of the trails in ways that enhance the resident and guest experiences and protect the ability of future generations to enjoy this wonderful endowment. By adopting an approach that protects the local ecology while providing recreational, social and health benefits, the local trail system can become a model of sustainable recreational trails management. At the heart of achieving this vision is a commitment to balancing environmental protection with recreational uses and activity. This commitment will be shared by all who are responsible for this asset – individuals using the area, partnering government agencies, surrounding private land owners, and other stakeholders. Common, sustainable strategies should emphasize awareness, education, safety and stewardship. Management approaches will be shaped by a desire to minimize negative impacts on the environment and local residents, while maximizing opportunities for positive outcomes such as community partnerships, education, habitat protection, or other opportunities. The Town has a collaborative and systematic vision for implementing this new Recreational Trails Program. An Avon Recreational Trails Advisory Group should be formed to direct trail planning, design, construction, and maintenance. This Group should consist of five members, with at least one full-time resident from Wildridge and one from Mountain Star participating. Participants who are not on Town staff should be nominated or self-volunteered and be confirmed by the Planning and Zoning Commission or the Town Council. The Trails Advisory Group will have the key responsibility to develop and manage a volunteer program for trail construction and maintenance. The Trails Advisory Group will also be responsible for updating this Recreational Trails Master Plan periodically (e.g. every 2-3 years) and presenting the update to Town leadership for formal adoption. Town staff will lead project implementation activities (including development of mapping and design details, review of deliverables from consultants, annual budget planning, bidding and assignment of trail construction contracts), public relations, and communications with outside stakeholders (e.g. USDA Forest Service, Singletree HOA, Eagle County). Statement of Principles The principles listed below were developed in conjunction with the vision statement, with input provided from Town of Avon staff and through the public consultation process. The principles express the range of basic concepts which are crucial to the development of a successful recreational trails management program and the realization of the vision. 1. Sustainable Planning Framework The mountain environment is important asset requiring careful management to preserve and sustain it for future generations. This requires a framework that supports a harmonious balance between long-term social, economic, and environmental values. Balancing the biophysical and physical capacity of the area to accommodate recreational use is a key consideration. 2. Public Health, Safety and Risk Management To enhance the healthy outdoor lifestyles found on the western slope, users require a challenging, yet safe and maintained outdoor mountain recreational trail system within a risk management framework that includes standards and regulations for trail use. Risks of use should be clearly communicated to trail COUNCIL RETREAT TOPICS PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Virginia C. Egger, Town Manager Date: July 11, 2014 Agenda Topic: Council July 22nd Retreat Topics Discussion Council is schedule for a two hour retreat on July 22nd, beginning at 4:30 p.m. at the Transit Facility Conference Room. Tuesday’s work session is set for Council to decide the agenda for the Retreat. Recommended topics include: • Communication Protocol Review and Assessment – Council to Council; Council to Public; Council to Manager and Attorney; Council to Staff • Council Priorities for work to be completed prior to November 26, 2014 enrollment of new Council persons • 2015-16 Strategic Plan – this important plan is the lead document for the preparation of the 2015-2016 budget; adoption would be on August 12th TOWN COUNCIL REPORT To: Mayor and Town Council From: Debbie Hoppe, Town Clerk Date: July 8, 2014 Agenda Topic: Town Code Requirement for Gift Reporting and Disclosure Report Please find attached the Town Clerk Gift Reporting Disclosure Report for June 2014 which lists the 2014 Beaver Creek Rodeo Summer VIP Tickets and Parking Pass for the upcoming event. Town Council is not required to take any action; however, any Town Council member may request Council consideration of a report gift to determine whether such gift constitutes a conflict of interest. The Town Code of Ethics requires disclosure of any gifts received which exceed $50 in value. “Gifts” includes any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of $50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall report such gift and the estimated value to the Town Clerk. The Avon Municipal Code requires the Town Clerk to disclose through a report any gifts offered to any Town Officer per Section 2.30.170 of the Town Code of Ethics. Town of Avon Town Clerk Disclosure Report In accordance with §7, Article XXIX of the Colorado Constitution and Section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon, I, Debbie Hoppe, Town Clerk for Town of Avon, submit the following list of such gifts reported to be received by officers of the Town of Avon: 1. 2014 Beaver Creek Rodeo Series VIP Tickets (2)and Parking Pass for use by the Mayor and each Councilor and Town Manager, with each pass valued at $175.00, for a total value of $350,000. Submitted to Avon Town Council on July 8, 2014. _________________________________ Debbie Hoppe, Town Clerk