Loading...
TC Council Packet 03-11-2014TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, MARCH 11, 2014 RETREAT BEGINS AT 3:30 PM – AVON’S REGIONAL TRANSIT FACILITY REGULAR MEETING BEGINS AT 6:30 PM AVON TOWN HALL, ONE LAKE STREET FINAL Avon Meeting Agenda 03-11-2014 Page 1 PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM TODD GOULDING COUNCILORS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: PATTY MCKENNY 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. ______________________________________________________________________________________________________________ AVON COUNCIL RETREAT BEGINS AT 3:30 PM AVON REGULAR MEETING BEGINS AT 6:30 PM (SEE SEPARATE AGENDA PAGE 2) RETREAT MEETING AGENDA 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. TOPICS 3.1. Communication Protocols – Council to Council; Email & Texts; Council to Staff; Staff to Council, Council Updates 3.2. Discussion of Performance Review Processes and Criteria for Council Appointed Officials, including the Town Manager, Town Attorney, Town Prosecutor and Municipal Judge 3.3. Budget: Discussion of Preparation of a Two-Year Operational Budget for Fiscal Years 2015 & 2016 (if time allows) 3.4. Discussion of Written Minutes – Can these be Action Minutes (if time allows) 4. ADJOURN AT 6:00 PM TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Virginia Egger, Town Manager Date: March 3, 2014 Agenda Topic: Materials for Council Retreat Topics Town Council has scheduled at the Tuesday Retreat the following topics. A summary of materials for each topic is provided. TOPICS 1.1. Communication Protocols – Council to Council; Email & Texts; Council to Staff; Staff to Council, Council Updates - SEE ENCLOSED MEMO FROM ERIC HEIL, TOWN ATTORNEY 1.2. Discussion of Performance Review Processes and Criteria for Council Appointed Officials, including the Town Manager, Town Attorney, Town Prosecutor and Municipal Judge - NO PACKET MATERIALS ENCLOSED. PROCESSES AND CRITERIA WILL BE DEVELOPED BASED UPON COUNCIL DIRECTION FROM THE RETREAT. 1.3. Budget: Discussion of Preparation of a Two-Year Operational Budget for Fiscal Years 2015 & 2016 (if time allows) - SEE ENCLOSED MEMO FROM VIRGNIA EGGER, TOWN MANAGER 1.4. Discussion of Written Minutes – Can these be Action Minutes (if time allows) - SEE ENCLOSED MEMO FROM PATTY MCKENNY, ASSISTANT TOWN MANAGER/TOWN CLERK Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com HEIL LAW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: RETREAT: Communication Protocols DATE: February 6, 2014 Summary: This memorandum provides a legal perspective on communication protocols as well as background on past practices and expectations. There are several categories of communications which are addressed separately. Council to Council: Council members may communicate one to one with each other concerning Town business outside of public meetings. The Colorado Open Meetings Act states that three or more Council members constitute a public meeting and requires notice of that meeting in advance of such communication. Electronic communications constitute a “meeting” for the purposes of the Colorado Open Meetings Act. For this reason, Council has been advised not to engage in a dialogue concerning Town business by e-mail. Also, the Colorado Open Meetings Act prohibits public bodies from formulating a decision outside of a public meeting and violations of this rule can result in voiding of the action taken by Council. The receipt of comments by all of Council directly from the public is acceptable as is the circulation of a question by an individual Council member to all of Council concerning official Town business (however, see Council with Manager communication below). Council members should remember that any e-mail (or tweet, facebook posting, or any other communication via any electronic form or social media) concerning Town business is a potential public record under the Colorado Open Records Act. Council with Manager: Council members may communicate with the Town Manager outside of public Council meetings and such communication is an essential to the efficient function of the Town government. Only one or two Council members may communicate with the Town Manager at one time outside of a properly noticed public meeting in order to comply with the Colorado Open Meetings Act. The active involvement of Council members in many committees and topic areas necessitates regular communication with the Town Manager outside of public meetings. It has been the practice that questions of a general nature by a Council member to all of Council should be directed through the Town Manager. There are four reasons for this protocol: first, so that the Town Manager is aware of the question; second, so that the Town Manager can respond to the question or direct the question to the proper person who can answer the question; third, to insure that all Council members are receiving the same information; and fourth, to minimize the potential for a Council dialogue via e-mail to begin in order to avoid any violation of the Colorado Open Meetings Act. Council with Staff: Direct communications between Council and Town Staff are principally governed first and foremost by the Avon Home Rule Charter, which states as follows “Section 8.5 Relationship of Council to Administrative Service. M EMORANDUM & PLANNING, LLC Avon Town Council Communication Protocols February 6, 2014 Page 2 of 2 Neither the Council, its members, the Mayor, nor any council committee shall dictate the appointment of any person to office by the Town Manager except as otherwise provided in this Charter or in any way interfere with the Town Manager or other Town officer exercising judgment in the appointment or employment of officers and employees in the administrative service. Except for the purpose of inquiry, the Council, its members, the Mayor and any Council committee shall deal with the administrative service solely through the Town Manager and neither the Council, its members, the Mayor, nor any Council committee thereof shall give orders to any of the subordinates of the Town Manager.” As a Council-Manager form of government, the Council has broad discretion to manage and direct the Town Manager, but the Town Manager has authority to manage and direct Town Staff. It is permissible for Council members to ask questions or request information directly from Town Staff persons. The practice and understanding has been that Town Staff shall respond to such requests provided the requests are not burdensome or disruptive to workflow or work deadlines. It has also been the protocol that Town Staff will notify the Town Manager of inquiries by Council members so that the Town Manager has general awareness of questions, issues and activities of Town Staff. Council members do have the same rights as the general public to ask questions, request information and provide comments directly to Town Staff (e.g. reporting that a stop sign has been knocked over). The Town Charter expressly prohibits individual Council members or Council as a body from giving direct orders to Town Staff. Council with Attorney: The Town Attorney represents the Town as a municipal corporation by and through the Council as a governing body. Direct communication between individual Council members and the Town Attorney most often involves (1) pending Town business which is reflected in the Town’s strategic plan and which involves Council members assigned to the appropriate committee or topic and (2) inquiries and disclosures concerning conflicts of interest. Questions of a general nature are generally directed to the Town Manager so that the response can be provided to all of Council and the Town Manager. Thank you, Eric TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Virginia Egger, Town Manager Date: March 3, 2014 Agenda Topic: Recommended Budget Process & Schedule Please find below a recommended process and schedule for the development, review and adoption of the 2015 Town of Avon Budget. Key aspects include:  The Strategic Plan leads the major work activities for funding in the budget. A two-year plan is recommended.  The importance of Council directing revenue projections, including any fee changes, plus direction in regards to reserves are important first steps in developing a balanced budget. In addition, a determination as to staff compensation is critically important from the outset as these costs represent the largest percentage of expenditures after capital investments.  In addition to preparation of the Five Year Capital Projects Program, it is recommended a two- year plan for all other funds be prepared. While Council only adopts the 2015 budget, the benefit of projecting a second year of revenues and expenditures provides information on the impact of current year decisions and allows the opportunity to manage expenses over a longer financial horizon.  The implementation of new financial planning and tracking software in the Finance Department this winter provides a platform for multi-year planning, budget analyses and ease of changing assumptions and forecasts.  The schedule has adoption of the budget occurring one week after the November election. 2015-16 Budget & Five Year Capital Program Process July 22nd 2015-16 Strategic Plan Review and Development August 12th 2015-16 Strategic Plan Adoption - Recommendation for fees and charges for services, if any - Fund Balances, Contingency, Stabilization Fund - Employee Compensation: Salary & Health Insurance September 23rd Review of Community Grant Requests October 7th Draft Budget Distributed - All Funds October 14th Budget Work Session October 28th Budget Work Session November 11th Public Hearing & Adoption - 2015 Budget 4. FINAL - Memo Minutes Page 1 TOWN COUNCIL REPORT To: Mayor and Town Council From: Patty McKenny, Assistant Town Manager/Town Clerk Date: March 5, 2014 Agenda Topic: Retreat Topic: Request for “Action Minutes” Format as Official Recording of Meeting Town staff requests Council direction on the “format & content” of its official minutes for both Council and PZC meetings. The discussion is raised because technology for retaining meeting discussions and actions has changed. In order to meet both legal requirements and the records management needs of the Town, the following information is provided: Currently the Town’s meeting minutes have included necessary items per State Statutes, such as date, meeting time, location, type of meeting, regular or special, names of governing body members and municipal officials in attendance. The format and content of Council meeting minutes have typically reflected the following: 1) Name of Agenda Item, 2) Summary of Agenda Item, 3) Discussion Highlights, 4) Public Hearing Input, and 5) Motion/Action. The Planning and Zoning Commission minutes follow suit with this format but also generally include more detailed information about the Commission and applicant’s deliberations. Please note audio recordings are also made for the meetings. The retention of the Council’s and Commission’s approved meeting minutes is required to be kept as permanent record. The retention of the audio recordings requires six (6) months after approval of the written minutes per the Colorado Municipal Records Retention Schedule. The Town of Avon has been retaining the audio recordings for council audio consistent with the retention schedule and PZC audio has been retained as far back as 2008. At this time I would propose following the retention schedule for both meeting recordings although consideration could be given to keeping these records for a longer period of time or permanently. There are no impacts to storing the records on the server according to IT Administrator. Depending on the length of the Town Council meeting, I spend an average of 3 to 4 hours per meeting in the preparation of the minutes. Planning Manager Matt Pielsticker estimates staff time of approximately 4 to 5 hours per meeting is spent in preparing minutes. My research shows there are no hard and fast rules for drafting minutes other than what is required by Statute listed above as well as the requirement the Clerk shall make a “true and accurate record of all proceedings”. CML offers suggestions regarding the recording of minutes as summarized below (reference: Colorado Municipal Clerks Reference Guide, 2012 Revision): • Use standard phrases where possible • Develop series of standard paragraphs leaving blanks for variable factors that makes entries uniform and reduces time spent composing them • Not required to record every remark made at meeting; do not make the minutes a verbatim transcript 4. FINAL - Memo Minutes Page 2 • Debates, arguments, and discussion among the governing body members and other may be omitted; minutes are primarily a record of the governing body’s actions rather than its deliberations. Response to a survey sent to the CML Municipal Clerk list indicates that minutes are predominately written as either “summary or action minutes” or no indication that detailed deliberations are included. Avon Municipal Code references “who” shall take minutes are found in the Charter as well as Chapter 7 which addresses PZC: 1. Charter Section 8.6 states the Town Clerk “shall keep a journal of Council proceedings and records in full all ordinances, motions and resolutions”. 2. Charter Section 5.5 (a) “Organization & Rules of Council” states that minutes are required to be kept in the English language by the Clerk and shall be signed by the Presiding Officer and Clerk of the meeting at which the minutes are approved. 3. Chapter 7, Development Code, Section 7.12.040 (k), identifies that a “recording secretary who shall act in the capacity of secretary for the PZC”; this role has been responsible for recording minutes of their meetings. Staff Recommendation: Staff recommends adopting the Action Minute format that includes only the name of agenda item, the motion/action on that item and any other action, motion or direction by Council or the Commission but does not include a description of deliberations or public comments. TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, MARCH 11, 2014 RETREAT BEGINS AT 3:30 PM – AVON’S REGIONAL TRANSIT FACILITY REGULAR MEETING BEGINS AT 6:30 PM AVON TOWN HALL, ONE LAKE STREET FINAL Avon Meeting Agenda 03-11-2014 Page 2 REGULAR MEETING BEGINS AT 6:30 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. WORK SESSION 4.1. Presentation of Avon’s Brand Platform Document – Final Draft - by Origin Design + Communications - (Danielle Kristmanson) 5. ACTION ITEMS 5.1. Vail Leadership Institute Request for Funding Assistance of Annual Operating Expenses and grants for Events (Ross Iverson, President, Vail Leadership Institute) 5.2. Resolution 14-04, Series of 2014, Resolution Consenting to UERWA creating a Capital Replacement Program Base Rate (Linn Brooks, George Gregory, UERWA) 5.3. Intergovernmental Agreement Between the County of Eagle, State of Colorado and the Town of Avon Regarding the Avon Station ECO Transit Shelter (Town Engineer Justin Hildreth) 5.4. Resolution 14-05, Series of 2014, Approving the Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement (Town Attorney Eric Heil) 5.5. Minutes from February 28, 2014 Meeting (Town Clerk Patty McKenny) 6. PUBLIC COMMENT 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. UERWA Meeting Update (Mayor Pro Tem Goulding) 8. COUNCIL COMMENTS 9. MAYOR REPORT AND FUTURE AGENDA ITEMS 10. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC) 10.1. Meet with Town Attorney to discuss the potential sale or acquisition real property under C.R.S. §24-6-402(2) (a) and for the purpose of receiving legal advice from the Town Attorney under C.R.S. §24-6-402(2) (b) concerning the potential sale or acquisition of real property 11. ADJOURNMENT FUTURE AGENDA ITEMS: March 25th: Site Visit to Wildridge for Minor PUD amendment Minervini Property, Proclamations, Highline Proposal Phase III TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Susan Fairweather, Director of Economic Initiatives Date: March 11, 2014 Work Session Topic: Presentation and Discussion of Avon’s Brand Platform – Final Draft Please find attached Avon’s Brand Platform - Final Draft (Brand Platform), which will be presented by Danielle Kristmanson of Origin Design & Communication, for your consideration and comments at tonight’s work session. The Town Staff and Avon’s Economic Development Advisory Committee (EDAC), who have been the lead group in developing the Brand Platform, consists of: Chris Evans, Todd Goulding, Chris Romer – Vail Valley Partnership, Danielle McNair – Vail Resorts, James Deighan- Highline Entertainment, Jen Dean – JD Design, Jerri Hoffmann – Hoffmann Properties, Jorge Umana – Meridian Intermountain, Kristen Pryor – Westin Riverfront, Markian Feduschak – Walking Mountains Science Center, Mike Brumbaugh – Avon Venture Sports, Phil Struve - Avon Planning and Zoning Commissioner, Ross Iverson – Vail Leadership Institute, Scotty Stoughton- WinterWonderGrass, Tim Baker – Vail Resorts, and staff members Virginia Egger, Matt Pielsticker, Danita Dempsey and Susan Fairweather. Origin and EDAC members worked through the five phases of Step One, of Origin’s consultant agreement with the Town of Avon. The work included: • Logistics • Research Review • Competitive Analysis • Envisioning (includes public forum and EDAC meetings) • Brand Articulation The deliverable of this process is the Brand Platform - Final Draft. The process included one public forum and meetings with EDAC members to arrive at consensus on the Brand Platform presented tonight. It is important to note that the Brand Platform is an internal document for use by town staff and stakeholders. It is the essence of what Avon is and will inform marketing and communications messages internally and externally. In addition to Step One work, the Town of Avon contracted with Origin Design & Communications for two additional steps: Step Two. Creative Development Step Three. Marketing Implementation Plan Development of Logo and Tagline, an activity of Step Two, were given a notice to proceed and funding. Origin will meet with the EDAC tomorrow to begin the development of Logo and Tagline, with the estimated timeline for developing and recommending these elements to Council at approximately four weeks. A determination for continuing work and funding for creative development and the marketing plan will be reviewed for Council action upon completion of the brand logo. @ @ Brand Platform @ 3 Brand Character 4 Brand Essence 5 Brand Promise 6 Brand Positioning 7 Brand Voice 8-9 Brand Story 10 Brand Vision 2 Table ofContents Brand Character 3 • Entrepreneurial and energetic • Optimistic and open to change • Appreciative and proud • Nature-loving and adventurous • Comfortable and unpretentious • Welcoming and engaging • Community-minded and family-oriented • Complementary and connected to its resort neighbors • Progressive and ecologically aware 4 Brand Essence Undaunted, inclusive and dynamic 5 Brand Promise Avon is more than a mountain town. And more than a mountain destination. It is a vibrant and diverse year-round, resort community defined by its spectacular surroundings and genuine local character. 6 Brand Positioning For those seeking vibrant and inspiring Rocky Mountain experiences in a comfortable, unpretentious, small-town setting, Avon is a year- round mountain resort community and the gateway to the world- renowned Beaver Creek Resort. It is a town that connects the shared values of both its residents and visitors, creating a one-of-a-kind place to visit, work, grow a business, raise a family and play in a spectacular outdoor setting. @ @ Brand Voice • Smart yet down-to-earth • Vibrant and positive • Unpretentious and inclusive • Light-hearted and good- humored • Grateful and proud 7 8 Brand Story Avon is a Colorado mountain town with a difference. While its ranching and farming history runs deep, the town’s more recent evolution into a resort community has lent it an intangible energy. A sense of promise and potential. The type of optimism and openness to change that is reserved for the young. This is a town on a mission. A community with initiative that verges on impatience. Its energy is derived from the magical combination of a place gifted with the Rocky Mountain’s majestic beauty and pristine wilderness, and the undeniable passion of the people who are drawn to it. Fed by the adventure found on the slopes of its neighboring ski resorts, at the edges of its sparkling rivers, and in the boundless open spaces that surround the town, Avon’s residents boast a lifestyle that most only dream of. It’s a place where earnings are supplemented with commute-free mornings, powder days, million dollar views, lunch breaks taken on river walks or biking trails and an intangible small-town feel that somehow makes its residents richer. And from this collective, intangible wealth springs a vision for Avon. P. 1 9 Brand Story (continued) It is a desire to make a difference. A need to create a better place for both its people and its visitors. Avon’s vision is unifying—a focus on strengthening its businesses, retail and service offerings, but it’s also a focus on connecting its neighborhoods with its nature—bringing them all together on pathways and in gathering spaces that invite both visitors and residents to celebrate their surroundings. Avon’s reputation was built as the gateway to Beaver Creek, and its vision is a complement to this world-renowned resort that it flanks. Avon adds another dimension to the resort experience—an enriched and diverse collection of experiences that are defined by their genuine flavour, and enhanced by both Avon’s spectacular natural environment and vibrant local community. Family-inspired events and activities at Nottingham Park pair with lively bistro patios on the community’s walkways. Local artisan markets meld with major outdoor music festivals and its annual fireworks extravaganza. The Walking Mountains Science Center’s Interpretive walks networks with freshly forged mountain bike trails. And the Vail Leadership Institute’s programming draws thought leaders and taps potential from urban centers and start-up ecosystems. Each of these elements serve to unite a community and its visitors in the common desire for a vibrant, genuine, progressive experience in a true mountain town. Avon’s positioning as a gateway to Beaver Creek gives way to this vision. Residents grow roots that sprout families and community pride. Visitors no longer simply pass through, but instead linger and return again and again for the opportunity to call this place home, if only for a short time. Avon...has arrived. P. 2 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Susan Fairweather, Director of Economic Initiatives Date: March 11,, 2014 Agenda Topic: Vail Leadership Institute Request for Funding Assistance of Annual Operating Expenses and grants for Events Please find enclosed a Request for Funding from the Vail Leadership Institute (VLI). Staff has reviewed and evaluated the request under the evaluation criteria established last fall for other outside agency applicants for funding during the 2014 budget approval process. While VLI was noticed of the process at the same time as other entities, an application was not received. Our review of the current request is as follows:  Community & Citizen Benefit: In its infancy but has potential to grow. VLI is identified as an attribute in discussions of Avon’s brand.  Strategic Plan & Avon Comp Plan: VLI is a resource for growing businesses in Avon and provides leadership to entrepreneurs as well as office amenities and limited office space in Avon. VLI is still in beginning growth stages with a vision of growth both to area businesses and attracting business owners/entrepreneurs outside the area and outside the state. Staff views VLI as a strategic partner moving forward.  Feasibility and Implementation Risk: Minimum. If funding is not granted in whole, VLI will need to seek funding from additional sources.  Business Vitality: VLI proposed programs have the ability to be a positive influence on lodging, food & beverage but limitedly at this stage in the VLI’s growth noting total attendance for each function is limited to 100 attendees each. Additional Information: Avon supported one Entrepreneurial Reception in 2013 with a contribution of $7,500.00 with the assumption that VLI offices would be based in Avon. Staff Recommendation Staff recommends that Council consider:  Spring/Fall Receptions: Granting up to $2500.00 for each reception with VLI acquiring additional matching funds from other organizations or sponsors within the community. The second year commitment is to assist with further establishment of the events in Avon. Staff notes that VLI does not receive any funding from 80% of the attendees, a possible area to look for additional funding. If Council grants such funding, staff recommends that VLI provide an equal value of services to the Town in its economic development efforts.  Entrepreneurs BaseCamp Facility Operating Support - Granting $1,000.00 in general operating funds for the “Entrepreneurial BaseCamp” initiative with VLI providing Avon an equal amount of value as outlined in the request. The current operating budget presented shows under general line item assumptions, a small net surplus and no deficit. While budgets can change through the course of the year, with no deficit indicated, funding the expectation of a shortfall is not recommended. This request could be resubmitted next fall in the budget cycle for consideration with the other agency requests. Recommended Motion I make a motion to grant Vail Leadership Institute $2500.00 for each Entrepreneurial Reception held in Avon in 2014, with the funding contingent on VLI obtaining additional sponsorship or admission fees to total $13,000 per event and to grant $1000.00 in funds towards the operation of the Entrepreneur BaseCamp Facility in exchange for services to the Town of Avon as outlined in the letter from VLI. APPLICATION  REQUIREMENTS  –  VAIL  LEADERSHIP  INSTITUTE   1. Vail  Leadership  Institute:  PO  Box  7210  Avon,  CO  81620.    Ross  Iverson,   970-­‐‑315-­‐‑2675,  Ross@VailLeadership.org   2. The  Vail  Leadership  Institute  is  a  501c3  and  leadership  development   organization  that  works  with  individuals  and  organizations  using  a  process   called  Inside  First™   3.  The  Vail  Leadership  Institute  will  be  holding  two  Entrepreneurial   receptions  in  2014.    These  events  will  feature  local  and  nationally  known   business  people  that  will  convene  at  the  Westin  in  Avon.    The  event’s   purpose  in  2014  is  to  continue  to  engage  local  business  owners  and   entrepreneurs  in  the  Town  of  Avon,  along  with  attracting  a  small  number   of  second  homeowners  and  front  range  participants.    The  expectation   would  be  approximately  100  attendees  per  event.    The  Institute  is  also   requesting  funding  for  another  critical  element  in  growing  the   entrepreneurial  community  in  Avon,  and  that  is  through  the   Entrepreneurs  BaseCamp  facility.    This  facility  is  sub-­‐‑lets  space  to  growing   firms  and  the  funding  request  allows  the  Institute  to  maintain  flexible   office  terms  with  its  tenants.       4.  $5,000  is  requested  for  each  event  and  $7,500  is  requested  for  the   Entrepreneurs  BaseCamp  facility.    Funds  are  requested  for  the  Spring   Entrepreneur  event  on  March  11,  2014.    Funds  for  the  October  Event  are   requested  September  1,  2014.    Fund  for  the  Entrepreneurs  BaseCamp  are   requested  on  March  11,  2014     5. Sponsorship  sales  have  just  begun  for  the  two  entrepreneur  receptions,  so   there  are  no  other  committed  parties  as  of  3/1/14.    The  Entrepreneurs   BaseCamp  has  received  committed  in-­‐‑kind  funds  from  Hoffmann   Commercial  and  is  currently  working  with  local  banks  to  provide   additional  funding  for  the  space  in  order  to  assist  in  increased  training   programs.       6. See  Below   7. N/A   8. The  Institute  provides  the  Town  of  Avon  a  strong  “pro-­‐‑business”  and   growth  brand  alignment.    As  part  of  this  alignment,  the  Institute  will  be   providing  the  Town  of  Avon  economic  development  position  $1,000  of   scholarship  funds  to  the  Business  Boost!  course  that  the  town  can  use  to   “welcome”  new  businesses,  or  provide  to  loyal  long  term  firms.    The   entrepreneur  events  also  supports  the  brand  and  thought  leadership  the   Town  is  creating.    The  Entrepreneur’s  BaseCamp  will  bring  in  incremental   retail  dollars  to  Town  merchants  based  on  the  increased  “meeting”  activity   of  the  existing  round  tables  and  other  meetings  that  are  hosted  at   BaseCamp.         9. Both  Entrepreneurial  events  will  be  promoted  in  the  Vail  Daily  4  weeks   leading  up  the  events,  through  the  use  of  radio,  social  media,  and  email   blasts  to  a  4,000  person  database.      The  Entrepreneurs  BaseCamp  is  also   promoted  in  the  Vail  Daily,  radio,  and  through  the  Vail  Leadership  web   site.    The  Town  of  Avon  will  receive  recognition  on  the  web  site,  and  as  a   sponsor  of  the  events  in  all  print  ads.    The  Town  will  also  receive  visual   presence  at  the  Entrepreneurs  BaseCamp.       10. N/A   11. In  2013,  the  Town  funded  the  entrepreneurial  event  on  October  17  in  the   amount  of  $7,500.    This  event  had  90  attendees  and  has  created  a  long-­‐‑term   buzz  following  Brad  Feld’s  guest  speaking  appearance.    The  event   energized  the  base  and  stimulated  many  aspirations  of  future  business   growth.    The  funds  were  utilized  for  facility  and  F&B  expenses.           Vail Leadership Institute Spring/Fall Reception Budget Revenues: Sponsors Qty Amount Level 1 (5,000) 1 5000 Level 2 (2,500) 2 5000 Level 3 (1,000) 3 3000 Sponsorship Revenue $13,000 Attendees per Program VLI Members ($0) 40 YPA Member ($0) 40 Paid Participants ($35) 20 700 Total Participants 100 700 Total Revenues $13,700 Expenses: Presenter Fees - Presenter Expenses 200 Equipment Rental 500 Facility Costs: Westin 1,500 Direct Marketing 4,000 On site signage 500 Materials & Printing 1,250 Food & Beverage 4,250 Miscellaneous Expenses 500 Program Development 1,000 Total Fixed Expenses 13,700 Program Income/(Loss) $0 Entrepreneurs  BaseCamp  Financial  Budget  2014 Revenue  Budget   Annual Monthly Hoffmann  Scholarhips 23,439                    1,953                           Average  Monthly  Rent 60,000                    5,000                           Total  Revenue  83,439                    6,953                           Expense  Budget 2,170                                                                    Annual Monthly Price Rent $32,550 $2,713 $15.00 Triple  Net  Costs $14,328 $1,194 $10.00 Vail  Leadership  Office $15,000 $1,250 Wifi $2,400 $200 Coffee $1,200 $100 Utilities $3,646 $304 $0.14 Phone  System $1,800 $150 Management  Fee $3,000 $250 Janitorial $1,800 $150 Insurance $1,200 $100 Credit  Card  Fees $1,428 $119 Printer/Copier  (Net)$2,400 $200 Contingency $600 $50 Total  Costs $81,352 $6,779 Net  Income  Potential 2,087                          174                                 %3%3% UPPER EAGLE REGIONAL WATER AUTHORITY 846 Forest Road  Vail, Colorado 81657 (970) 476-7480  www.erwsd.org WATER OPERATIONS Arrowhead Metropolitan District  Town of Avon  Bachelor Gulch Metropolitan District Beaver Creek Metropolitan District  Berry Creek Metropolitan District Cordillera Metropolitan District  Eagle-Vail Metropolitan District  Edwards Metropolitan District M E M O R A N D U M TO: Honorable Mayor Rich Carroll and Avon Town Council members FROM: Linn Brooks, Eagle River Water & Sanitation District General Manager DATE: March 11, 2014 SUBJECT: Resolution Consenting to Upper Eagle Regional Water Authority Creating a Capital Replacement Program Base Rate __________________________________________________________________________________________ Summary: The Town of Avon has delegated its water service obligation to the Upper Eagle Regional Water Authority. The Authority was established in 1984 by its member entities, which include the Town of Avon (formerly Avon Metropolitan District), and the Arrowhead, Beaver Creek, Berry Creek, EagleVail, and Edwards metropolitan districts. The Authority’s establishing agreement requires that an increase in base rates exceeding the Denver/Boulder Consumer Price Index have the prior consent of the member entities’ governing boards. George Gregory, Authority Board Chairman, and Linn Brooks, General Manager, will be present to further explain and answer questions related to this request. Action Requested of Council: Approve the Resolution Consenting to Upper Eagle Regional Water Authority Creating a Capital Replacement Program Base Rate. Discussion/Background: The Authority is responsible for the public water system that serves roughly EagleVail through Cordillera. It provides water service to properties within its member entities’ service areas, and also – by contract – to properties within the Bachelor Gulch and Cordillera metropolitan districts. The Authority is a local government managed by a board of directors, members of which are each appointed by their member entity governing board. The six member entities formed the Authority in order to provide the following benefits to their constituents:  Economies of scale in billing, operating, maintaining, and administering the provision of water services;  Operations of existing water storage facilities, and administration and state reporting to meet the requirement of members’ water rights decrees;  Investigation, planning, and negotiations related to the development of alternative water/storage sources to increase in-basin water storage, and system flexibility and reliability;  Water supply planning and new water rights acquisition;  Water rights diligence and protection;  Representation on the Eagle Park Reservoir Company board of directors;  Use of Nottingham (“Benchmark”) Lake as a recreation, rather than an augmentation, facility;  Use of Authority water rights, which effectively eliminates some of the constraints in the Avon augmentation plans;  Flexibility in considering future development and changes in developments; and  Optimization of use of water rights for the benefit of local stream flows. The Authority Board of Directors passed its 2014 budget in November 2013. In response to feedback from member entity governing bodies last year, the Board proposes a new Capital Replacement Program Base Rate of $3.25/SFE/month (SFE = single family equivalent, a unit measurement of impact to system capacity roughly equivalent to one average residential dwelling). Because this base rate increase exceeds the Denver/Boulder CPI, consent from member entity governing bodies is required to implement the new rate. Avon Mayor and Town Council Resolution Consenting to UERWA Creating a Capital Replacement Program Base Rate Page 2 The purpose of the rate is to avoid the cost of financing the replacement of aging capital assets and pay those costs directly from customer revenues. The attached graph shows the history of Authority revenues and expenditures. In 2004, Authority revenues were sufficient to pay for operations and debt service, with remaining revenues available to pay for replacement capital. Tap fee and other revenues dropped significantly starting in 2009. Thereafter, revenues have not been sufficient to pay for operations expenses and debt service, while still having funds to pay for replacement capital. Since 2009, the Authority has been paying for replacement capital from bond proceeds. Rates have increased since 2011, while operations costs have remained steady; however, these trends have not been sufficient to move the Authority away from dependence on bond proceeds. The 2014 forecast revenues shown on the graph include revenues that would be collected from the proposed Capital Replacement Program Base Rate. Implementation of this rate benefits Authority customers by avoiding finance costs for replacement capital and will help keep debt service expenses steady going forward, while providing a dedicated revenue stream to ensure capital assets are replaced as needed to support the Authority’s continued ability to provide high quality, reliable service to its customers. Attachment:  Resolution Consenting to Upper Eagle Regional Water Authority Creating a Capital Replacement Program Base Rate  UERWA Revenue and Expense Trends Graph TOWN OF AVON RESOLUTION CONSENTING TO UPPER EAGLE REGIONAL WATER AUTHORITY CREATING A CAPITAL REPLACEMENT PROGRAM BASE RATE WHEREAS, the Town of Avon (“Town”) is a Participating Member in the Upper Eagle Regional Water Authority (“Water Authority”) via the Establishment Agreement (dated September 18, 1984), and the Amended and Restated Service Contract (dated January 1, 1998); and WHEREAS, the Board of Directors of the Water Authority has proposed a Capital Replacement Program Base Rate Charge, the proceeds of which will be placed in a Restricted Reserve Fund designed to pay on a current and ongoing basis for capital replacement of existing facilities (the “Capital Replacement Program Base Rate” or “CRPBR Charge”); and WHEREAS, the intent of the Capital Replacement Program Base Rate is to avoid financing costs, and pay directly from customer revenues those recurring costs for the replacement due to predictable aging or obsolescence of the following types of assets: 1. Assets with a life expectancy of between 5 and 20 years; 2. Assets with a longer life expectancy but requiring an on-going periodic replacement investment, such as for a long-term pipe replacement program. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Avon consents to the establishment of the proposed Capital Replacement Program Base Rate in the initial amount of $3.25 per SFE per month for implementation as of April 1, 2014; and as said CRPBR Charge may be adjusted in future years, subject to the following conditions: 1. The proceeds from the Capital Replacement Program Base Rate shall be used solely for capital replacement expenses caused by wear and tear on and obsolescence of existing capital facilities. 2. A Capital Replacement Program Restricted Fund shall be established to account for revenue and expenses dedicated to capital replacement and associated costs. 3. Subject to a maximum increase set forth in Section 4 below, the Authority annual budget process shall determine the Capital Replacement Program Base Rate appropriate for subsequent calendar and budget years. The initial rate was determined from past budget history and will generate Town of Avon Resolution Consenting to Upper Eagle Regional Water Authority Creating a Capital Replacement Program Base Rate Page 2 approximately $640,000 per year. The Authority Board’s budget process will re-evaluate the need for the rate every year and adjust it, either by an increase or decrease, as determined by the Authority Board 4. Any increase in the CRPBR Charge above the increase in the Rate of Inflation as defined by the Denver/Boulder/Greeley consumer price index shall require the unanimous consent of the Participating Members, per the Establishment Agreement. ADOPTED this 11th day of March, 2014, by a vote of ____ for and ____ opposed. Town of Avon By: Rich Carroll, Mayor 0 2,000,000 4,000,000 6,000,000 8,000,000 10,000,000 12,000,000 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Forecast UERWA Revenue & Expense Trends 2004 to 2014 Op. Revenue Plant Inv Fees Other Revenue Op Expense Debt & Ops Expense Y:\_Accounting\BUDGETS\UERWA\UERWA History Graph 2005 to 2014 Forecast.pdf.xlsx TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Justin Hildreth, Town Engineer Date: March 4, 2014 Agenda Topic: Intergovernmental Agreement between the County of Eagle, State of Colorado and the Town of Avon Regarding the Avon Station ECO Transit Shelter. ____________________________________________________________________________________ BACKGROUND: ECO Transit is requesting to replace its existing transit shelter with a new shelter that will better accommodate its users. The existing shelter is 6 FT x 10 FT, constructed with a black metal frame with Plexiglas, and was installed when Avon Station was completed in 2007. The new shelter will measure 7FT x 14FT and be a custom built structure designed by a local architect to meet the higher design standards of the larger, existing Avon shelter and the new Wyndham development. The shelter design is illustrated in Exhibit A and is highlighted with a simple shed roof form, metal roofing, corrugated metal siding or textured colored concrete, wood siding and metal support beams. The shelter will be located in Town of Avon right-of-way adjacent to the ECO Transit bus stops at the northwest corner of Avon Station, near Lettuce Shed Lane. The Intergovernmental Agreement (Exhibit B) describes the terms for shelter construction and operation. Generally, ECO Transit will be responsible for the shelter design, construction, and maintenance. ECO Transit submitted a Minor Design and Development Plan application to the Town that was approved by the Planning and Zoning Commission at the March 4, 2014 meeting. The Town of Avon will provide the land for the shelter and will construct the shelter as part of the 2014 Mall Improvement Project. The Town will be responsible for providing electricity for the shelter lights and signage, and the maintenance of the areas around the shelter including trash clean-up, and snow removal. The agreement is for 25-years and if the Town needs to remove the shelter within the term it will reimburse ECO Transit for the cost of the shelter. The Eagle County Commissioners are scheduled to take action at their March 18, 2014 meeting. RECCOMMENDATION: Staff recommends approval of an Intergovernmental Agreement between the County of Eagle, State of Colorado and the Town of Avon Regarding the Avon Station ECO Transit Shelter. Approval of this Intergovernmental Agreement requires concurrent vote of four (4) Council members per Avon Charter 5.5(b). EXHIBITS A – ECO Transit Shelter Design B - Intergovernmental Agreement between the County of Eagle, State of Colorado and the Town of Avon Regarding the Avon Station ECO Transit Shelter   3289 Cooley Mesa Road, PO Box 1070, Gypsum, CO 81637 tel:970/328‐3520 fax: 970/328‐3539 eco@eaglecounty.us    EXHIBIT C    EXHIBIT A   3289 Cooley Mesa Road, PO Box 1070, Gypsum, CO 81637 tel:970/328‐3520 fax: 970/328‐3539 eco@eaglecounty.us      EXHIBIT A EXHIBIT B 1 INTERGOVERNMENTAL AGREEMENT BETWEEN THE COUNTY OF EAGLE, STATE OF COLORADO AND THE TOWN OF AVON REGARDING THE AVON STATION ECO TRANSIT SHELTER THIS AGREEMENT, made and entered into this _______ day of _________________, 2014, by and between the Board of County Commissioners of the County of Eagle, State of Colorado, a body corporate and politic (hereinafter referred to as the “County”) and the Town of Avon, a Colorado home rule municipal corporation (hereinafter referred to as the “Town”). The County and Town shall collectively be referred to as the “Parties”. RECITALS: WHEREAS, Resolution No. 96-22 created the Eagle County Transportation Authority and provided for its duties and powers, among which are to provide recommendations to the County with respect to expenditure of funds serving the County’s mass transportation system; and WHEREAS, the County is currently planning to undertake the design of a new bus shelter (the “Bus Shelter”) to replace the existing ECO Transit bus shelter facility located at Avon Station (the “Project”) and the Town has agreed to participate by entering into contracts for construction of the Project; and WHEREAS, on December 17, 2013, the Town approved a public improvement project to Lettuce Shed Lane and the Pedestrian Mall (the “Mall Project”); and WHEREAS, the County and Town agree that coordination of the Project and Mall Project will result in cost savings and construction benefits; and WHEREAS, the County and Town have determined that the existing bus shelter shall be demolished and the new Bus Shelter shall be located at Avon Station to accommodate the Mall Project and will serve the citizens of Eagle County, as well as the residents of the Town; and WHEREAS, this Agreement is authorized by C.R.S. § 29-1-201, et. seq., and Article XIV, Section 18 of the Colorado Constitution. AGREEMENT: NOW THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, the Parties hereto agree as follows: 1. SCOPE/DESCRIPTION OF THE PROJECT A. The County has designed the new Bus Shelter for Avon Station as generally depicted in Exhibit A which is attached hereto and incorporated herein by reference. The Project requires the demolition EXHIBIT B 2 of the existing bus shelter at Avon Station and design and construction of the new Bus Shelter for Avon Station. The Project is located on land owned by the Town. B. The Bus Shelter will be built in the alignment and to the standards set forth by the Town and agreed upon by the County and shall be located, as set forth in Exhibit A. In the event the Town desires to deviate from the alignment or approved standards, it shall first obtain written approval for such modification from County. C. The Parties agree that this Project requires coordination and effort between and by the Parties and that it is impossible to anticipate every issue that might arise in the course of planning, management, design and construction of the Project. In light of the foregoing, each party agrees to work with the other in the spirit of good faith and fair dealing. 2. PROJECT FUNDING. A. Town and County have approved, budgeted and committed to funding the Project as follows: i. County shall be responsible for costs associated with the design and construction of the new Bus Shelter as depicted in Exhibit A which shall include and be subject to the following: (a) Construction of the new Bus Shelter structure; (b) Utilities associated with the construction and installation of the Bus Shelter, with the exception of the electrical stub-out as discussed in section 2.A.ii(b), below ; (c) Concrete pads for securing the Bus Shelter to the ground; and (d) Demolition and replacement of concrete and pavers related to the installation of the new Bus Shelter. (e) County’s obligation as set forth herein shall not exceed $100,000 without the prior written consent and agreement of County. ii. The Town shall be responsible for costs associated with: (a) Removal of the existing bus shelter; (b) Removal of the existing light fixture, at the new Bus Shelter location, including its base and other related EXHIBIT B 3 improvements and provide an electrical stub-out acceptable to the County for the purpose of connecting to the Bus Shelter; (c) The cost of electrical service for lighting and signage of the new Bus Shelter; and (d) The Town also agrees to repair and replace any concrete and pavers that may be damaged as a result of the work discussed in paragraph 2.A.ii (a) through (d). iii. The Town agrees to waive all design review fees associated with the Project and the County will apply for and obtain design approval of the Project. iv. The Town agrees to waive any building permit or other fees associated with the Project and will apply for and receive a building permit for the Project. v. The Town agrees to enter into all contracts necessary for the construction of the Project and will provide all construction management services at no cost to the County. vi. The Parties agree that the amount set forth in paragraph 2.A. i. (a) through (e) is expected to be sufficient to complete the Project and obligations set forth in that paragraph. If, after the Project is bid and before construction begins, the Parties determine that the funds identified are not sufficient, then the Parties shall work together to identify whether there are any cost savings that can be applied. If no cost savings are available, then the Parties shall mutually agree upon how to address such cost overruns or alternatively, either party may elect to terminate this Agreement. vii. If, during construction of the Project, the Parties determine that the funds identified in this agreement are not sufficient, then the Parties shall work together to identify whether there are any cost savings that can be applied. If no cost savings are available, then the Parties shall mutually agree upon how to address such cost overruns. In no event shall County’s obligations be increased without its prior written approval. viii. Notwithstanding anything to the contrary contained in this Agreement, no charges shall be made to either party nor shall any payment be made in excess of the amount for any EXHIBIT B 4 work done in respect of any period after December 31 of any year without the written approval in accordance with a budget adopted by the Board of County Commissioners or Avon Town Council in compliance with the provisions of Article 25, Title 30 of the Colorado Revised Statutes, Local Government Budget Law (C.R.S. 29-1-101 et. seq. and Tabor Amendment (Colorado Constitution, Article X, Sec. 20). ix. In consideration for the monetary payment from the County as set forth in paragraph 2.A.i., the Town shall utilize and spend those funds solely for those portions of the Project identified in paragraph 2.A.i. x. Upon completion of the Project, the Town will submit one complete and final invoice based on funds actually expended by it to the Director of the Eagle County Regional Transportation Authority, P.O. Box 1070, Gypsum, Colorado 81637. Payment will be made according to the County's regular bill paying procedure. xi. All funds received under this Agreement shall be expended solely for the purpose stated herein, and any such funds not so expended, including funds lost or diverted to other purposes, will be returned to the County. xii. The Town shall maintain adequate records for reporting to the County. The Town shall maintain all records pertaining to this Agreement for a minimum of three (3) years and may be subjected to an audit by federal, state, or county auditors or their designees as requested. If misuse of funds is discovered by an auditor, the Town shall return said misused funds to the County. xiii. The Town authorizes the County to perform audits and to make inspections during normal business hours at the convenience of the Town, with forty-eight (48) hours written notice, for the purpose of evaluating performance under this Agreement. 3. PROJECT TEAM AND REPRESENTATIVES. A. The Parties agree that the Town of Avon Engineering staff and County ECO Transit Department staff shall serve as the project team. Justin Hildreth shall serve as the Project Representative for the Town and Jared Barnes shall serve as the Project Representative for the County. 4. CONSTRUCTION AND CONSTRUCTION MANAGEMENT. EXHIBIT B 5 A. The Town will enter into construction contracts through a public solicitation process and will seek an itemized statement of costs for each element of the Project as set forth in paragraphs 2.A.i. and 2.A.ii above. B. The County will be named a third party beneficiary with respect to any work in connection with the Bus Shelter and the County shall have the right, but not the obligation, to enforce the warranty or other contract provisions for work affecting the new Bus Shelter structure to be owned by the County. C. The Town will manage and administer the contracts with assistance from the County, if requested and available. D. The Parties agree to waive any claims against each other associated with the selection, preparation and administration of the construction contract. The Parties agree to waive and hold harmless each other from any defects or deficiencies in the design or construction of the Project. Neither party is waiving any claims that might arise against the designer or contractor. 5. PROJECT OWNERSHIP AND MANAGEMENT UPON COMPLETION. A. The Town is the fee simple owner of the land upon which the new Bus Shelter will be located. The County will be the owner of the Bus Shelter structure upon completion of construction. Thus, the Town hereby grants to the County a license for a term of 25 years, from the date of execution of this agreement, for the location, operation, construction, maintenance and repair of and access to and from the Bus Shelter. Following completion of construction, County shall be responsible for all upkeep and maintenance associated with the Bus Shelter structure. The license granted herein may be modified, extended or earlier terminated upon mutual agreement of the Parties in writing. If the Town desires to revoke the license prior to the termination of the license term and recover the property, then the Town shall reimburse the County for the then current value of the structure which shall be mutually agreed to by the Parties. This paragraph shall survive termination of this Agreement. B. The Town shall be responsible for all upkeep and maintenance of the areas immediately surrounding the Bus Shelter, including, but not limited to trash cleanup and snow removal. The electricity for the lights and electronic bus signage in the bus shelter will be provided by and paid for by the Town. This paragraph shall survive termination of this Agreement. C. Town will own, manage and maintain the location of the old bus EXHIBIT B 6 shelter and the land upon which the new Bus Shelter is located. This paragraph shall survive termination of this Agreement. 6. INSURANCE AND GOVERNMENTAL IMMUNITY. A. The County and Town shall each provide their own public liability, property damage and errors and omissions coverage as each party may deem adequate and necessary for any potential liability arising from this Agreement. This paragraph shall survive termination of this Agreement. B. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to either party, its officials, employees, contractors’ or agents, or any other person acting on behalf of either party 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. This paragraph shall survive termination of this Agreement. 7. PERIOD OF AGREEMENT A. The term of this Agreement shall commence on the date said Agreement is executed by both Parties and shall terminate on December 31, 2014, unless the Agreement is extended by both Parties prior to the end date stated herein. Notwithstanding the foregoing, paragraphs 5 and 6 shall survive termination of this Agreement. 8. NOTICE Any notice provided for herein shall be given in writing by registered or certified mail, return receipt requested, which shall be addressed as follows: THE COUNTY: Eagle County Eagle County Regional Transportation Authority Attn: Kelley Collier or Jared Barnes P.O. Box 1070 Gypsum, Colorado 81637 THE TOWN: Town of Avon Town Manager Attn: Virginia Egger P.O. Box 975 EXHIBIT B 7 Avon, Colorado 81620 9. ASSIGNMENT A. This Agreement shall be binding upon and inure to the benefit of the Town and the County and their respective heirs, legal representatives, executors, administrators, successors and assigns; provided, however, that neither party may assign nor delegate any of its rights or obligations hereunder without first obtaining the written consent of the other party. B. While the Parties anticipate and agree that the Town will hire a contractor to perform the work necessary to complete the Project, the Town shall not otherwise assign any rights or delegate any duties under the Agreement to a third party without the written consent of the County, which shall determine the acceptability of the third party to the County. Any effort to effect such an assignment without the written consent of the County will terminate the Agreement immediately at the option of the County. 7. MISCELLANEOUS A. The Parties of this Agreement intend that the relationship of the Town to the County is that of cooperating governmental entities pursuant to C.R.S. § 29-1-201, et. seq., and Article XIV, Section 18 of the Colorado Constitution. No officer, agent, employee or volunteer of, or contractor for the Town shall be deemed to be an agent, employee or volunteer of or contractor for the County. Likewise, no officer, agent, employee or volunteer of the County shall be deemed to be an agent, employee or volunteer for the Town. B. The validity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed as if such invalid or unenforceable provisions were omitted. C. Each party shall comply with all applicable laws, resolutions, and codes of the State of Colorado, County of Eagle, Town of Avon and all federal laws barring discrimination. D. No person shall have any personal financial interest, direct or indirect, in this Agreement. E. The law of the State of Colorado shall be applied in the interpretation, execution and enforcement of this Agreement. Venue for any action arising out of any dispute pertaining to this Agreement shall be exclusive in Eagle County, Colorado. EXHIBIT B 8 F. This Agreement represents the full and complete understanding of the Parties, and supersedes any prior agreements, discussions, negotiations, representations or understandings of Parties with respect to the subject matter contained herein. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement the day and year first above written. The Parties hereto have signed this Agreement in quadruplicate. One counterpart each has been delivered to the County and the Town. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS ATTEST: ____________________________ By: ______________________________ Clerk to the Board of Jillian H. Ryan, County Commissioners Chairman TOWN OF AVON ATTEST: By: ___________________________ By: _________________________________ Patty, McKenny, Town Clerk Rich Carroll, Mayor EXHIBIT B 9 Exhibit A Legend: Current Shelter Location Proposed Shelter Location Proposed License Area 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 J. Heil, Town Attorney RE: Water Storage Tank Agreement and Pledge Agreement DATE: March 5, 2014 SUMMARY: This memorandum provides an overview of the Water Storage Tank Agreement (“Tank Agreement”) and the Pledge Agreement. The construction of the water storage tank to serve the Village (at Avon) is an essential term of the overall litigation settlement agreement because additional development cannot occur in the Village (at Avon) until this public improvement is constructed. Due to changes in the financial market and increases in interest rates from the time the Settlement Term Sheet was first approved in October, 2011, the Upper Eagle River Water Authority is not able to finance and construct the water storage tank with the pledge of $500,000 per year for thirty years. Traer Creek-RP has offered to provide the necessary funding to construct the water storage tank (and has in fact begun the project). The Tank Agreement and the Pledge Agreement both require revisions to implement the construction of the tank with financing by Traer Creek-RP. The Town is a party to the Tank Agreement but is not a direct party to the Pledge Agreement; however, the overall Development Agreement defines the Traer Creek-RP tank financing, so review of the both the Tank Agreement and Pledge Agreement involves verifying that they are consistent with the Development Agreement. WATER STORAGE TANK AGREEMENT: The Traer Creek entities and the Upper Eagle River Water Authority have reached agreement on revised language to the Tank Agreement. These parties have also executed the Tank Agreement. I have reviewed the Tank Agreement with Dee Wisor and we find it generally acceptable. The Tank Agreement references the financial obligations to construct the tank stated in Section 5.5(b) of the Development Agreement (excerpts of this section are attached). The conveyance of water rights as originally agreed remains the same and the deeds of conveyance have been prepared, executed and deposited into the settlement escrow, which is acknowledged in Section 9. Additional revisions are occurring the Easement Agreement for the access road to the tank which are not completed at this time; however, my understanding is that the revisions are for the purpose of reconciling language with lender subordinations and bond document requirements and do not affect the Town’s obligations regarding future maintenance (Town is not obligated to maintain the access road until a road is built to Town standards and dedicated to Town through the Town’s process). Pledge Agreement: The Pledge Agreement is no longer an exhibit to the Tank Agreement. The Upper Eagle River Water Authority is no longer a party to the Pledge Agreement. Dee Wisor and I had reviewed the Pledge Agreement and provided comments last fall. The attached draft includes incorporate of all the comments we provided and is acceptable. Overall, the Pledge Agreement often cross-references the Development Agreement when defining the obligation of Traer Creek Metropolitan District and Village Metropolitan District to repay Traer Creek-RP for the construction of the water tank. M EMORANDUM & PLANNING, LLC Avon Town Council Amendment to the Tank Agreement March 5, 2014 Page 2 of 2 OTHER MATTERS TO COMPLETE SETTLEMENT: The parties held a group conference call on Wednesday, February 26 and Wednesday March 5, 2014 to discuss the status of documents, remaining work to complete documents, and the scheduling of a bond closing. At this time, it appears that the parties are working towards issuing the Notice of Bond Redemption on March 27, 2014, completing the bond documents by the end of April and officially closing on the refinancing on May 1, 2014. REQUESTED ACTION: Consideration of Resolution No. 14-03. PROPOSED MOTION: “I move to approve Resolution 14-05 A Resolution Approving the Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement.” ATTACHMENTS: Attachment A: Resolution No. 14-03 Attachment B: Amended and Restated Tank Agreement Attachment C: Pledge Agreement Attachment D: Sec. 5.5(b) of Development Agreement [for reference] Thank you, Eric Res. 14-05 Approving the Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement March 11, 2014 TOWN OF AVON RESOLUTION NO. 14-05 Series of 2014 A RESOLUTION APPROVING THE AMENDED AND RESTATED TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT WHEREAS, on October 7, 2011 Traer Creek Plaza, LLC (“TCP”), the Town of Avon, and other parties entered into the Settlement Term Sheet (“Settlement Term Sheet”) in an effort to resolve pending litigation Nos. 2008 CV 385 and 2010 CV 316, Eagle County District Court; WHEREAS, the Settlement Term Sheet set forth terms concerning the financing and construction of the Traer Creek Water Storage Tank; WHEREAS, the parties previously approved the Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement and now desire to approve an Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement for reasons stated in the recitals; 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 Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement, attached hereto as Exhibit A, is hereby approved by the Town of Avon, and that the Mayor, Town Manager and Town Attorney are hereby authorized to collectively review and approve the completion of blanks in the document, revisions to correct typos, grammatical errors, cross-references and definitions, completion or revision of exhibits, and other revisions to the agreement and exhibits which do not constitute substantive changes to the terms of the agreement which are material to the Town of Avon’s interest. ADOPTED MARCH 11, 2014 TOWN COUNCIL ATTEST: By:_________________________________ By:________________________________ Rich Carroll, Mayor Patty McKenny, Town Clerk APPROVED AS TO FORM: By:_________________________________ Eric J. Heil, Town Attorney ATTACHMENT A {00366896.DOC / 4} 1 AMENDED AND RESTATED TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT THIS AMENDED AND RESTATED TRAER CREEK WATER STORAGE TANK AGREEMENT AND SECOND AMENDMENT TO WATER SERVICE AGREEMENT (“Tank Agreement”) is made and entered into as of this ____ day of __________, 2014 (“Date of Execution”), by and among the following entities (individually, a “Party” and, collectively, the “Parties”): the UPPER EAGLE REGIONAL WATER AUTHORITY, a political subdivision of the State of Colorado (the “Authority”); the TOWN OF AVON, a home rule municipal corporation of the State of Colorado (“Avon”); the TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (“TCMD”); TRAER CREEK LLC, a Colorado limited liability company (“TCLLC”); TRAER CREEK-RP LLC, a Colorado limited liability company (“TCRP”); and only for those limited purposes expressly set forth below, BNP PARIBAS, a financial institution organized under the laws of the Republic of France (“BNP”) and The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado (“VMD”) (together, BNP and VMD may be referred to as a “Limited Party” or the “Limited Parties”). RECITALS This Tank Agreement is made with respect to the following facts: A. Avon, TCMD, Master Developer (defined in Recital D) and other entities were parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County District Court), and have entered into that certain Settlement Term Sheet dated October 7, 2011 (the “Term Sheet”), to resolve various disputes at issue in the litigation. B. Section 3 of the Term Sheet includes provisions regarding financing and constructing the 2012 Tank Project (as defined in Recital I) within The Village (at Avon) real estate development (the “Property”), the legal description of which is attached hereto as Exhibit A. C. Except for certain smaller parcels owned by third parties (as such interests appear of record as of the Date of Execution), EMD Limited Liability Company (“EMD”), Traer Creek Plaza LLC, Traer Creek-HD LLC and Traer Creek-WMT LLC (collectively, together with any other entity with respect to which TCLLC is the managing member and which acquires title to ATTACHMENT B {00366896.DOC / 4} 2 any portion of the Property after the Date of Execution, the “Developer Affiliates”) hold fee title to the developed portions of the Property and certain undeveloped portions of the Property. D. For ease of administration and in recognition of the fact that ownership of the Property has and will continue to become diverse as further development occurs, the Developer Affiliates have designated TCLLC to act on its and their behalf for all purposes in connection with this Tank Agreement, including but not limited to negotiation and execution of this Tank Agreement and any future amendments hereto (in such capacity, TCLLC being “Master Developer”). E. TCRP holds fee title to the bulk of the undeveloped portions of the Property, including but not limited to that portion of the Property which, upon recording of said plat (as approved by Avon’s Town Council and deposited into the Master Escrow), will be legally described as Tract J, THE VILLAGE (at AVON) FILING 4 (the “Tank Site”) upon which the bulk of the Tank Improvements (as defined in Recital O) are to be constructed and operated. F. The Parties previously executed the Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement, with an effective date of December 26, 2012 (the “2012 Tank Agreement”). G. Due to certain regulatory changes and changed circumstances, the tank construction plans and specifications previously completed by the Developer Affiliates and TCMD (the “2005 Plans”) were updated, modified and approved by the Authority (as so modified and approved, the “Bid-Ready Plans”) for bidding and construction by the Authority as contemplated in the 2012 Tank Agreement. H. TCMD contributed the total sum of $211,585.00 to the Authority toward the costs of completing the Bid-Ready Plans, and the Authority caused the Bid-Ready Plans to be completed in accordance with the terms and conditions of the 2012 Tank Agreement. I. The Bid-Ready Plans incorporated all design, engineering and construction drawing criteria required to bid and construct the following improvements as depicted, described and/or specified in the Bid-Ready Plans (collectively, the “2012 Tank Project”): (1) a 2.0 million gallon treated water storage tank (the “Storage Tank”); (2) a year-round all-weather road between the Tank Site and the nearest dedicated public road to provide year-round all-weather access to the Tank Site, portions of which were intended to provide general public access after dedication to Avon and portions of which were intended to be restricted from general public use (the “Access Road”); (3) excavation, cut and fill, grading, slope stabilization, and retaining wall and similar improvements within the Tank Site (collectively, the “Tank Site Preparation”); and (4) those water lines, valves, vaults, electric lines and other utilities improvements required to be installed and connected to provide service to the Tank Site ATTACHMENT B {00366896.DOC / 4} 3 and to connect the Storage Tank to existing water lines, electrical lines and related utilities (collectively, the “Tank Appurtenances”). J. The Authority undertook and fully performed the following services in accordance with the terms and conditions of the 2012 Tank Agreement: (1) coordinated preparation of the Bid-Ready Plans; (2) made application for required permitting from the Colorado Department of Public Health and Environment and the U.S. Army Corps of Engineers for construction of the 2012 Tank Project in accordance with the Bid-Ready Plans; (3) completed a public bidding process for construction of the 2012 Tank Project in accordance with the Bid-Ready Plans; and (4) completed required preparations through its bond counsel, including the negotiation and completion of that certain Water Tank Bonds Pledge Agreement dated December 26, 2012 (“2012 Pledge Agreement”), for financing the construction of the 2012 Tank Project in the name of and under the Authority’s credit through the sale of its municipal bonds for such purpose (“Tank Project Bonds”). The 2012 Pledge Agreement was never placed in the Master Escrow (as defined in Recital W); instead, it was sent back to the Bond Team for revisions that would have permitted VMD to be the issuer of the 2014 Bond Reissue (as defined in Section 11). As so revised, the 2012 Pledge Agreement was never executed and is not now required. K. The Authority was unable to award construction contracts for the 2012 Tank Project because sufficient funding would not have been available to the Authority from the Annual Debt Service Obligation (as such term was defined in the 2012 Pledge Agreement) provided for in the 2012 Tank Agreement. L. Efforts by the Authority, TCMD, TCLLC and TCRP to reduce the costs were not sufficient to close the funding gap that existed and, for that reason, the Authority’s Board of Directors authorized the issuance of a notice of rejection of all Bids received, termination of all preparations for the Authority to issue the Tank Project Bonds, and close-out of all contracts and release of all contractors and consultants previously utilized by the Authority for the engineering and design work for the 2012 Tank Project. M. A Reimbursement and Pledge Agreement between TCRP, TCMD and VMD will provide that TCRP will design, finance and construct the Tank on behalf of TCMD and VMD for a fixed sum (as further defined in Section 11). The Authority is relying solely on TCRP to timely pay all costs of construction for the Tank Project (the 2012 Tank Project with approved Design Revisions (as defined in Recital N), as so modified, the “Tank Project”). Construction Acceptance (as defined in Recital O) of the Tank Project by the Authority shall be conditioned upon (1) the recording of the Special Warranty Deed conveying the Tank Site to the Authority and the recording of the Easement Agreement for the Realigned Access Road (as defined below in Recital N) to the Storage Tank; (2) TCMD’s transfer and conveyance of ownership of the Storage Tank and the Tank Appurtenances to the Authority; and (3) if not completed on the Implementation Date, recording of the Partial Release of Deed of Trust for the Tank Site and ATTACHMENT B {00366896.DOC / 4} 4 recording of the Final Plat (as defined in Section 14). TCRP’s commitment to build the Tank Project and the Reimbursement and Pledge Agreement shall be conditioned upon the occurrence of the Implementation Date (as defined in Recital Y). N. The Authority acknowledges that the Bid-Ready Plans have been approved by the Authority and assigned to TCMD. The Bid-Ready Plans may be modified by design revisions prepared by any engineer designated in the TCRP Project Manual for presentation to and approval by the Authority (“Design Revisions”). Design Revisions may be submitted for approval either before or after this Tank Agreement is executed. The Bid-Ready Plans and any Authority approved Design Revisions taken together shall be the approved construction plans (“Approved Construction Plans”). Subject to the occurrence of the Implementation Date (as defined in Recital Y), TCRP has agreed to undertake and cause completion of the 2012 Tank Project with certain approved Design Revisions in accordance with the terms and conditions of this Tank Agreement; such modifications shall include, but not be limited to: (1) as more specifically set forth in Section 5.5 of the Development Agreement and on behalf of TCMD and VMD, TCRP undertaking responsibility for causing construction and completion of the Tank Project; (2) the Bid-Ready Plans being updated through Design Revisions to reflect changes to the Access Road (as so modified, the “Realigned Access Road”), with such Design Revisions then being incorporated in Marcin Engineering’s final plans and specifications for the Realigned Access Road (and, only as to the design of the water main and any other Tank Appurtenances to be installed within the alignment of the Realigned Access Road), having been approved by the Authority and incorporated in the Approved Construction Plans as provided in clause (3) below); (3) the Bid-Ready Plans being updated through Design Revisions to reflect related modifications to the Storage Tank design, the Tank Site Preparation design, and the Tank Appurtenances design (including but not limited to the water main and appurtenant facilities as provided in clause (2) above) as necessary to accommodate the Realigned Access Road (such revised plans, as to be certified and stamped by Bates Engineering in its capacity as design engineer of record with respect to the Storage Tank design and related aspects of the Tank Site Preparation design and as otherwise approved by the Authority in accordance with this Tank Agreement, being as part of the Approved Construction Plans, as more particularly set forth above in Recital N); (4) execution of the Reimbursement and Pledge Agreement has occurred; and (5) TCRP has obtained all necessary permits for construction of the Tank Project in advance of the construction of the actual facilities, and contracting for completion of the design and construction of the Tank Project with engineers (including Bates Engineering in its capacity as design engineer of record with respect to the Storage Tank and related Tank Site Preparation) and contractors that TCRP determines are capable of completing the Tank Project as provided in this Tank Agreement, including, but not limited to Scott Green Excavating, Inc. as to pertinent work set forth in the Dirt ATTACHMENT B {00366896.DOC / 4} 5 Contract (as defined in Section 6.a) and Lillard & Clark as to the work set forth in the Tank Contract (as defined in Section 6.b). O. In accordance with the terms and conditions of this Tank Agreement and the Authority’s generally applicable and published rules and regulations (the “Authority Regulations”), the Storage Tank and the Tank Appurtenances (collectively, the “Tank Improvements”) shall be dedicated to and accepted by the Authority upon being completed in accordance with the Approved Construction Plans and made operational and functional within the Authority’s presently existing regional water distribution system, subject to the Authority’s requirements and procedures for inspection, testing, construction acceptance (as set forth in Chapter 9, Appendix C of the Authority Regulations, “Construction Acceptance”) and final acceptance (as set forth in Chapter 10, Appendix C of the Authority Regulations, “Final Acceptance”), such Construction Acceptance and Final Acceptance to be in writing and not to be unreasonably withheld, conditioned or delayed. P. Certain of the Parties, or their predecessors in interest, and the Eagle-Vail Metropolitan District (“EVMD”) entered into a Water Service Agreement, dated May 15, 1997, as amended by First Amendment to Water Service and Tap Fee Allocation Agreement dated June 22, 1999, (collectively, as so amended, the “Service Agreement”), in which Section 5, titled Construction of Water Service Facilities, provided for construction of a water storage tank by TCMD or a predecessor of Master Developer. Q. The Parties intend this Tank Agreement to amend Section 2 of the Service Agreement as it provides for the Lease of Water Rights, and to amend Section 5 of the Service Agreement as it provides for construction of the Storage Tank. R. As now provided in the Service Agreement, Avon is the successor in interest to the rights, obligations, agreements and benefits of EVMD and, therefore, in accordance with Section 13(c) of the Service Agreement Avon is fully authorized to approve and execute the amendments to the Service Agreement effected by this Tank Agreement such that the approval or consent of EVMD is not required. S. VMD is executing this Tank Agreement for the sole and limited purpose of setting forth its obligations, which are limited to those expressly set forth in Section 11, and its rights and remedies, which are limited to those expressly set forth in Sections 10.j, 11, 13.b and 16. T. As between the Authority, Avon, TCMD and VMD, this Tank Agreement constitutes an intergovernmental agreement pursuant to C.R.S. §§ 29-1-204 and 29-20-105 and Article XIV, Section 18(2) of the Colorado Constitution and each such governmental or quasi-governmental entity is specifically entitled to seek and be awarded the remedy of specific performance (if allowed by law against any local government that is a Party) of each such governmental or quasi-governmental entity’s obligations arising under this Tank Agreement. U. The Developer Affiliates have undertaken and will undertake certain obligations and certain investments in reliance on the Authority’s commitment to provide water service to and issue taps for development of the Property and, as such, the Developer Affiliates are ATTACHMENT B {00366896.DOC / 4} 6 intended to be express third-party beneficiaries (the “Intended Beneficiaries”) of the Authority’s and Avon’s obligations under this Tank Agreement with rights of direct enforcement of such obligations as more particularly set forth in Section 16. V. BNP as a Limited Party has executed this Tank Agreement solely to affirm BNP’s approval of and consent to TCMD and VMD undertaking and performing their respective obligations as described in Section 11 regarding the 2014 Bond Reissue (as defined in Section 11) and the Reimbursement and Pledge Agreement, and to confirm BNP’s rights and remedies as set forth in Sections 10 and 16.d of this Tank Agreement. W. Implementation of the settlement contemplated in the Term Sheet will require the satisfaction of various mutually dependent conditions, including but not limited to closing of the 2014 Bond Reissue, such that certain documents and instruments required to be formally delivered and/or recorded to implement the Term Sheet have been and will continue to be deposited into escrow (the “Master Escrow”) with Stewart Title as escrow agent (the “Escrow Agent”) prior to closing of the 2014 Bond Reissue. X. The terms and conditions governing the rights and obligations of Escrow Agent and the parties thereto with respect to the Master Escrow were initially set forth in that certain Receipt and Escrow Agreement Pertaining to The Village (At Avon) Settlement Implementation entered into and effective as of June 7, 2013, as amended by that certain Amended and Restated Receipt and Escrow Agreement Pertaining to The Village (At Avon) Settlement Implementation entered into and effective as of ________________, 2014 (as may be further amended from time to time, the “Master Escrow Agreement”). Y. The Master Escrow Agreement generally provides for the deposit into the Master Escrow of certain documents and instruments required to implement the settlement (as defined in the Master Escrow Agreement, the “Settlement Implementation Documents”) subject to instructions for formal delivery and/or recording on a date identified in the Master Escrow Agreement for such purposes (as defined in the Master Escrow Agreement, the “Implementation Date”), or return of all such documents and instruments without formal delivery or recording, such documents and instruments to be void ab initio and of no legal effect if the 2014 Bond Reissue has not occurred by the Outside Date (as defined in the Master Escrow Agreement). Z. The Master Escrow Agreement further provides for the deposit into the Master Escrow of certain documents and instruments pertinent to the Tank Improvements and the Tank Site (as defined in the Master Escrow Agreement, the “Tank Site Documents”) subject to instructions for formal delivery and/or recording of the Tank Site Documents (as defined in the Master Escrow Agreement, the “Tank Agreement Escrow Instructions”), or as a condition to the Authority’s grant of written Construction Acceptance of the Tank Improvements (as of which date the Authority shall be precluded from imposing, continuing or re-imposing the moratorium on the issuance of water taps within the Property for failure to complete construction of the Storage Tank). AA. This Tank Agreement shall become legally effective and binding on the Parties as of the Implementation Date. ATTACHMENT B {00366896.DOC / 4} 7 NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the Parties agree that this Tank Agreement shall replace and supersede the 2012 Tank Agreement in its entirety and that no party thereto shall have any further rights or obligations arising pursuant to the 2012 Tank Agreement, and the Parties hereby agree to the terms of this Tank Agreement as follows: AGREEMENT TERMS 1. Settlement Term Sheet. The terms and provisions of this Tank Agreement are intended to implement, and as of the Implementation Date shall be deemed to have implemented, the terms of Section 3 of the Term Sheet. 2. Service Agreement. From and after the Implementation Date, the terms and provisions of this Tank Agreement amend the following terms of the Service Agreement: a. Section 2(b) as the terms of Section 2(b) apply to the ownership of the water rights to be used to service the Property; and b. Section 5 as it provides for construction of the Storage Tank. 3. Bid-Ready Plans. Pursuant to the 2012 Tank Agreement, certain of the Parties undertook and performed the following obligations with respect to the Bid-Ready Plans, the effect of which is to be as follows: a. TCMD and the Authority executed and delivered the Agreement for Payment of Costs of Water Storage Tank Design, dated March 2, 2012, attached as Exhibit C to the 2012 Tank Agreement, together with three (3) Addenda thereto effective on December 20, 2012, January 31, 2013 and March 2, 2013 (collectively, the “Design Costs Agreement”). Pursuant to the Design Costs Agreement and subject to the terms and conditions thereof, TCMD transferred to the Authority the total sum of $211,585.00. Using such funds, the Authority contracted for and caused completion of the Bid Ready Plans. As of July 10, 2013, the Authority had expended $196,585.00 in accordance with the terms of the Design Costs Agreement. b. Of the $211,585.00 that TCMD provided to the Authority as described in the forgoing Section 3.a and pursuant to the terms of the December 20, 2012 addendum, TCMD provided $15,000.00 “to pay costs incurred by the Authority for the engineering of a mechanically stabilized earth retention wall using soil nail techniques” on the Tank Site. This work was completed by the Authority at a cost of $4,294.00, which has been expended by the Authority for the purposes described above. The Authority shall retain the remaining $10,706.00 to pay a portion of the remaining unpaid expenses for the work described in the Design Costs Agreement as incurred by the Authority in the amount of $36,831.22. c. The Authority hereby waives all rights, if any, it had under the 2012 Tank Agreement and/or the Design Costs Agreement to reimbursement for any ATTACHMENT B {00366896.DOC / 4} 8 of its otherwise unreimbursed costs, specifically including but not limited to any such costs incurred in obtaining completion of the Bid Ready Plans and/or in connection with its engagement of consultants. d. TCMD hereby waives all rights it had, if any, under the 2012 Tank Agreement and/or the Design Costs Agreement to reimbursement for its expenses, specifically including but not limited to the $211,585.00 it advanced pursuant to the Design Costs Agreement. e. In consideration of the funds so advanced by TCMD, and in complete satisfaction of any further obligations of the Authority with respect to such funds, the Authority has, prior to the Date of Execution, assigned to TCMD, without any representations or warranty, all of the Authority’s right, title and interest in the Bid-Ready Plans and any and all work product resulting therefrom. 4. Satisfaction of Authority’s Obligation to Prepare Construction Cost Estimates, to Bid the 2012 Tank Project, to Obtain Permits, and Award Contract; Release. All Parties acknowledge and agree that the Authority fully satisfied its obligations under the 2012 Tank Agreement to obtain a construction cost estimate for the 2012 Tank Project based on the Bid-Ready Plans; that the Authority, following its normal bidding practices, solicited bids from pre-qualified contractors for the 2012 Tank Project in May 2013 and provided TCMD, BNP and the Master Developer the opportunity to review and comment on the bids received in June 2013 as provided in the 2012 Tank Agreement; that it has not been, nor can it be confirmed that the Authority’s Tank Project Bonds anticipated to be issued to pay the costs of construction could be serviced without exceeding the Annual Debt Service Obligation (as such term was defined in the 2012 Pledge Agreement) amount, a condition precedent to the Implementation Date and the release of the 2012 Pledge Agreement from the Master Escrow; and that the Authority made application for the permits required from the Colorado Department of Public Health and Environment and the U.S. Army Corps of Engineers for the construction of the 2012 Tank Project. The Authority is released from any further obligation pursuant to the 2012 Tank Agreement with respect to such matters; provided, however, the Authority shall either withdraw such permit applications or assign its rights to such permit applications (and any permits issued) to TCMD. 5. Approved Construction Plans. The Tank Site is being prepared and a portion of the water main has been completed and inspected by the Authority. The Authority acknowledges that the Bid-Ready Plans have been approved by the Authority and assigned to TCMD. The Bid-Ready Plans may be modified by Design Revisions prepared by any engineer designated in the Project Manual for presentation to and approval by the Authority. Design Revisions may be submitted for approval before or after this Tank Agreement is executed. The Bid-Ready Plans and any Authority approved Design Revisions shall be the Approved Construction Plans. Except to the extent in conflict with any specific provision of this Tank Agreement, Authority review and approval of the Design Revisions shall be in accordance with applicable requirements and procedures therefor in accordance with the Authority’s generally applicable published engineering standards as set forth in Appendix C of the Authority Regulations, such approval to be in writing and not to be unreasonably withheld, conditioned or ATTACHMENT B {00366896.DOC / 4} 9 delayed. Upon the Authority’s approval, such Design Revisions shall be incorporated into the Approved Construction Plans. If TCRP and Marcin Engineering authorize any work for which plans and specifications have not been approved by the Authority either as the Bid-Ready Plans or as Design Revisions to be incorporated into the Approved Construction Plans as provided herein, TCRP assumes all risk that such work will not be inspected, approved or accepted by the Authority. 6. Construction Contracts. Prior to the Date of Execution of this Agreement, TCRP has taken the following actions with respect to construction contracts for completion of the Tank Project: a. Dirt Contract. Execution and administration of a contract with Scott Green Excavating, Inc. (the “Dirt Contract”) for the Tank Site Preparation work (generally including excavation, grading, compaction and stabilization of the Tank Site for delivery of a buildable site for commencement of construction of the Storage Tank in accordance with the Approved Construction Plans) and the Realigned Access Road (generally including installation of the water main (a portion of the Tank Appurtenances) in accordance with the Approved Construction Plans, finish grading the road alignment to a 16’ wide gravel base, and installation of related retaining walls). b. Tank Contract. Obtained a bid in the amount of $3,250,000 from Lillard & Clark Construction Company, Inc. (“Lillard & Clark”) for construction of the Storage Tank and certain related Tank Appurtenances, (the “Tank Contract”), which contract shall be executed not later than the Implementation Date. Although the Tank Contract is expected to be awarded to Lillard & Clark, it may also be awarded or entered into with any contractor that was previously pre-qualified by the Authority in response to its Request for Qualifications in 2013. The Authority shall have the opportunity to review and comment on the Tank Contract and Tank Documents as identified in the Project Manual. TCRP may elect not to execute the Tank Contract until the Implementation Date. 7. Wetlands Mitigation. TCRP shall be solely responsible for obtaining and maintaining any wetland permits required in order to complete the Tank Project, including the Realigned Access Road. 8. TCRP Construction of Tank Project. The Parties and the Limited Parties acknowledge that TCRP’s obligation under this Tank Agreement to complete the Tank Project is contingent on the Implementation Date occurring, but that TCRP nonetheless, and without obligation to any other Party or Limited Party to do so or to continue and/or complete such work unless the Implementation Date occurs, has commenced construction of the Tank Project prior to the Date of Execution. The Authority acknowledges that it has actively monitored and inspected such construction activities to the extent that such work conforms to the Bid-Ready Plans or approved Design Revisions. Subject to the Implementation Date occurring, TCRP anticipates that it will substantially complete the Tank Improvements, such that the Tank Improvements are ATTACHMENT B {00366896.DOC / 4} 10 ready for Construction Acceptance on or before June 30, 2015. As the construction process continues before and after the Implementation Date: a. Payment. TCRP (through its construction engineer, Marcin Engineering) shall be responsible for approving all progress payments and making disbursements to the contractors for the Tank Project. b. Avon Requirements for Assurance of Completion. No new or additional studies shall be required by Avon for the Tank Project. Avon also shall waive all fees, including review fees, for any and all permits it may require for the Tank Project. Avon shall permit TCRP to construct the Tank Project and shall not require a public improvements agreement (other than or in addition to this Tank Agreement) with respect to the Tank Project. Avon shall not require the posting of any collateral, bond or other form of assurance of completion with respect to the Tank Project, other than this Tank Agreement. Avon’s waiver of financial security for the Tank Project shall not extend or apply to any future water storage tank project which is pursued if this Tank Agreement expires or is terminated without completion of the Storage Tank, nor shall such waiver apply to any additional tanks that may be required to serve higher elevations of the Property. c. Realigned Access Road. If portions of the Realigned Access Road are improved as a public road, such portions shall be dedicated to and accepted by Avon for maintenance immediately following completion of the same to Avon’s standards for dedication of a public street then in effect (and in accordance with the Development Agreement and the street standards set forth in the PUD Guide for The Village (at Avon)), but neither the Authority nor Avon shall have any responsibility to improve the Realigned Access Road to such standards. Any inspections of construction by Avon shall be in its discretion and at its sole cost and expense. Subject to applicable provisions of the Development Agreement, Avon shall be responsible for all municipal services with respect to any dedicated portions of the Realigned Access Road after expiration of the two (2) year warranty period. Pending dedication to and acceptance by Avon of the Realigned Access Road, the owner or owners of the property upon which the Realigned Access Road is constructed shall be responsible for maintenance of the Realigned Access Road so long as it remains closed to use by the general public. Such maintenance shall include repair, replacement or reimbursement to the Authority for any damage to the water main and its appurtenance, including valve boxes, not caused by Authority personnel or its activities. Such maintenance shall not include snow removal, but must be sufficient to permit continued access to the Storage Tank by the Authority for operation and maintenance of the Storage Tank. Any Party who uses the Realigned Access Road at a time when snow is present shall be responsible to plow the snow as necessary to permit ingress and egress so long as the Realigned Access Road ATTACHMENT B {00366896.DOC / 4} 11 remains closed to use by the general public, and shall conduct such snow plowing using reasonable care to avoid damage (and shall be responsible for repairing any such damage) to any Tank Appurtenances or other improvements located within or adjacent to the Realigned Access Road. From and after the date on which recording of the deed conveying the Tank Site to the Authority takes place (as provided in Section 14), the Authority shall be and remain solely responsible for ownership, operation and maintenance of that portion of the Realigned Access Road, if any, which is located within the Tank Site, and shall be responsible as otherwise provided herein for snow removal for any portion of the Realigned Access Road that is located outside of the Tank Site and which provides the Authority with private access to the Tank Site and is not intended to be or has not been dedicated to and accepted by Avon. Except as provided above, the Authority shall have no responsibility for the physical condition of the Realigned Access Road. The Authority shall have absolutely no responsibility for the design, construction, financing, oversight or approval of the construction of the Realigned Access Road, except as that design and construction may impact any Tank Appurtenances located within the Tank Site Easement (as defined in Section 14). d. Landscaping. The landscaping requirements set forth in the Bid-Ready Plans (as they may be modified by Design Revisions) supersede all previously adopted landscaping requirements. TCRP shall only be responsible to perform and install those landscaping improvements set forth in the Approved Construction Plans, and to warrant the same until expiration of two complete growing seasons. Thereafter, the Authority shall maintain all such landscaping improvements that are installed within the Tank Site. Master Developer shall, to the extent required by applicable requirements of The Village (at Avon) Design Review Board (the “DRB”), be responsible to obtain such board’s approval of the landscape requirements set forth in the Bid-Ready Plans (or in any approved Design Revisions). Any additional landscaping that a Party or the DRB desires within the Tank Site shall be allowed at the sole expense of such Party or the DRB, if proposed by the DRB, subject to the Authority’s reasonable determination that such additional landscaping improvements will not impair or interfere with the Authority’s operation and maintenance of the Storage Tank, subject to satisfactory arrangements being made to address the cost and responsibility for maintaining such additional landscaping improvements, and further subject to review and approval by the DRB. e. Authority Inspections of Tank Improvements; Construction Acceptance. As set forth in Section 10, the Authority shall be precluded from imposing, continuing or re-imposing the moratorium on the issuance of water taps within the Property for failure to complete construction of the Storage Tank as of the date on which it grants written Construction Acceptance of ATTACHMENT B {00366896.DOC / 4} 12 the Tank Improvements. The Authority reserves all rights to inspect (at the Authority’s cost, but only to the extent that such inspection and testing by a third party duplicates and confirms the inspection and testing performed for TCRP or TCMD) the Tank Site Preparation work and the Tank Improvements prior to granting written Construction Acceptance of the Tank Improvements, including the customary requirements for inspection and testing by third parties, and to reject any portions of the work which fail to comply with the Approved Construction Plans. As the Tank Site Preparation work and construction of the Tank Improvements progresses, and in order to facilitate prompt written Construction Acceptance of the Tank Improvements upon substantial completion thereof, the Authority shall provide timely inspection and copies of its written inspection reports to Marcin Engineering and Bates Engineering as those reports are completed. All such inspections shall be conducted in accordance with the standards and requirements set forth in Chapter 9, Appendix C of the Authority Regulations. Prior to Construction Acceptance, the Authority will require certification from Bates Engineering in its capacity as design engineer of record that the Tank Site Preparation work has been performed and the Storage Tank has been constructed in accordance with the Approved Construction Plans. Provided that the Special Warranty Deed conveying the Tank Site to the Authority and the Easement Agreement for the Realigned Access Road to the Storage Tank have both been recorded, and TCRP has transferred and conveyed ownership of the Storage Tank and all of its appurtenances to the Authority, the Tank Site Preparation work and the Tank Improvements with respect to which Bates Engineering has provided certification as described above shall be granted written Construction Acceptance upon substantial completion of the Tank Improvements in their entirety. In order to facilitate effective coordination, cooperation and communication during the construction phase, the Authority will participate in weekly project coordination meetings with Marcin Engineering and will communicate with Marcin Engineering or Bates Engineering (and will not engage in such communications with other contractors or subcontractors) regarding project status matters. The Authority shall timely conduct any inspections of all other Tank Improvements required to enable issuance of its written Construction Acceptance upon substantial completion of the Tank Improvements in their entirety, which written Construction Acceptance shall not be unreasonably withheld, conditioned or delayed. The assignment and conveyance of the Tank Improvements by TCRP to the Authority as a condition of Construction Acceptance shall include all permits required and obtained from the Colorado Department of Public Health and the Environment and all warranties and warranty bonds for the Tank Improvements. f. Authority’s Ownership, Maintenance and Operation of Tank Improvements. From and after the date on which the Authority grants written Construction Acceptance of the Tank Improvements (as of which ATTACHMENT B {00366896.DOC / 4} 13 date the Authority shall be precluded from imposing, continuing or re- imposing the moratorium on the issuance of water taps within the Property for failure to complete construction of the Storage Tank), the Authority shall own and shall be and remain solely responsible at its sole cost and expense (subject to the applicable two (2) year warranty period) for all ongoing ownership, operations and maintenance of the Tank Improvements. Subject to timely resolution of warranty items and all other requirements for Final Acceptance, if any, in accordance with Chapter 10, Appendix C of the Authority Regulations, the Authority shall grant its written Final Acceptance of the Tank Improvements, which Final Acceptance shall not be unreasonably withheld, conditioned or delayed. 9. Conveyance of Water Rights and Appurtenances. Section 2(b) of the Service Agreement provided for the lease by Master Developer’s predecessor to Avon for sublease without cost to the Authority certain water rights sufficient to replace the consumptive use associated with the development of the Property as ultimately decreed by the Water Court. By the terms of a Water Lease, dated November 4, 2002, certain TCMD water rights (Exhibit 2 thereto), certain historic consumptive use credits dedicated to the plan for augmentation approved in Case No. 97CW306 (Exhibit 3 thereto), and 10.8 acre-feet of Wolford Mountain Reservoir contract water were leased by TCMD to Avon. By the terms of a Water Sublease, dated November 4, 2002, Avon subleased the same water rights to the Authority. In consideration of the commitment of the Authority to rescind the moratorium not later than the Implementation Date and to accept applications for water taps within the Property during the construction of the Storage Tank, both of the Special Warranty Deeds (presently held in the Master Escrow by Stewart Title) executed by Traer Creek Metropolitan District and the Town of Avon conveying certain water rights to the Authority that are presently leased to the Authority, together with an updated Title Opinion for these water rights as required by the Authority’s Special Counsel for Water, shall be delivered and recorded as a condition to the rescission of the moratorium. a. Conveyance to Avon. On June 7, 2013, TCMD deposited into the Master Escrow a Special Warranty Deed which, upon recording not later than the Implementation Date will effect a conveyance by TCMD to Avon of all of TCMD’s right, title and interest in and to the water rights described therein (collectively, the “Water Rights”), free and clear of all liens and encumbrances, together with all diversion ditches, pipelines, headgates and structures, pumps, casings and other improvements and easements associated or used in connection with the Water Rights as becomes necessary from time to time in order for the Authority to provide municipal water service to the Property (“Appurtenances”), reserving unto TCMD all rights of access and use of the Appurtenances to the extent not required to provide municipal water service for the Property. Previously TCMD provided to the Authority and to Avon a written water rights opinion (prepared by Petrock & Fendel, P.C., a Colorado professional corporation, and deposited into the Master Escrow on June 7, 2013) in a form acceptable to the Authority. TCMD shall cause this written water rights opinion to be updated prior to the recording of the ATTACHMENT B {00366896.DOC / 4} 14 Special Warranty Deed identified in this Section 9.a. The commencement date of the record title search of the Water Rights under the Title Opinion shall be the date of the decree in Division No. 5 Case No. 97CW306 or the date of conveyance of the Water Rights and Appurtenances to Avon, whichever date is earlier. b. Conveyance to Authority. Previously Avon deposited into the Master Escrow a Special Warranty Deed which, upon recording not later than the Implementation Date will effect a conveyance by Avon to the Authority of the Water Rights and the Appurtenances, subject to a right of reverter to Avon in the event the Authority fails to provide water service to the Property (excepting temporary cessation of water service due to reasonable maintenance requirements or emergency conditions or actions by the Authority as authorized pursuant to the Authority Regulations). c. Tank Agreement Escrow Instructions. The Parties acknowledge that the deeds referenced in Sections 9.a and 9.b were deposited into the Master Escrow on June 7, 2013, but shall not be deemed legally effective or operative until recorded not later than the Implementation Date. d. Additional Effect of Conveyances. As of the date on which the Special Warranty Deeds described in Section 9.a and 9.b are recorded: (i) TCMD and Master Developer shall, without further action or documentation, be deemed to have waived any ownership interest in the thirty (30) acre-feet of Eagle Park Reservoir water previously obtained by the Authority in its name using funds provided by TCMD; and (ii) any obligation to lease water rights to Avon or the Authority under the terms of the Service Agreement, the Water Lease or the Water Sublease shall be considered satisfied in full. e. Authority Responsibilities. From and after the date of recording of both Special Warranty Deeds described in Sections 9.a and 9.b, the Authority shall undertake the ongoing responsibility for any Water Court filings necessary to continue and/or to make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump conditional rights decreed in Case No. 97CW306. TCMD and the Authority shall continue to cooperate with each other in all Water Court matters involving the rights decreed in Case No. 97CW306. The Authority shall file any application necessary to maintain and/or make absolute the Metcalf Ditch Headgate and Raw Water Booster Pump. In the sole and absolute discretion of the Authority, the Authority may require TCMD to file as a co-applicant. f. Additional Water Rights. This Section 9 shall not be construed to relieve TCMD, Master Developer, or any other owner of the Property, or portion thereof, from the obligation to provide additional water rights to serve development on the Property in excess of what is approved by the decree ATTACHMENT B {00366896.DOC / 4} 15 of the District Court in and for Water Division No. 5 in Case No. 97CW306. 10. Self-Liquidating Irrevocable Letter of Credit; Rescission of Moratorium on Water Taps; Water Service Obligation. For a number of years the Authority has imposed a moratorium upon issuance of water taps for further water service within the Property. As of the date on which the Authority grants written Construction Acceptance of the Tank Improvements, the Authority shall be precluded from imposing, continuing or re-imposing the moratorium on the issuance of water taps within the Property for failure to complete construction of the Storage Tank. TCRP shall satisfy certain conditions, and the Authority shall rescind the moratorium on issuance of water taps within the Property, as follows: a. Security for Payment of Construction Costs as Determined by the Tank Contract.. TCRP shall guarantee the timely payment of all construction costs provided for in the Tank Contract by obtaining and delivering a Self- Liquidating Irrevocable Letter of Credit (“ILOC”) in the amount of $3.25 Million issued by Alpine Bank, or another U.S. bank with a branch in Colorado, naming the Authority as the sole beneficiary thereof. The minimum amount of the ILOC shall never be less than $325,000, including any retainage provided for in the Tank Contract. The original ILOC shall be delivered to the Authority as beneficiary. The expiration date of the ILOC shall be January 6, 2016, or upon Construction Acceptance, whichever occurs earlier. As beneficiary of the ILOC, the Authority’s approval of progress payments to the contractor shall be required as a condition of reducing the amount of the ILOC in accordance with a pre-approved schedule of values for construction and the Authority’s inspection of the Work. The amount of the ILOC shall at all times be equal to the contract amount less the cumulative sum of all previously paid progress payments in accordance with the schedule of values for construction, subject to the minimum amount of $325,000. b. Delivery of Construction Contracts. The Authority acknowledges that prior to the Date of Execution, TCRP has delivered to the Authority a copy of the fully executed Dirt Contract and a fully executed contract with Bates Engineering with respect to its engagement as design engineer of record with respect to the Storage Tank and Tank Site Preparation work related to design of the Storage Tank. On or before the Implementation Date, TCRP shall deliver to the Authority a copy of the fully executed Tank Contract. c. Recording of the Partial Release of Deed of Trust and the Final Plat for the Tank Site. Not later than the occurrence of the Implementation Date, TCRP shall direct the processing and recording by the Public Trustee of the Partial Release of the Deed of Trust for the benefit of Laramie Participations, Inc. which presently encumbers the Tank Site and the recording of the Final Plat for Tract J (“Tank Site”), provided the Beneficiary of the Deed of Trust does not object to such recordings. If the ATTACHMENT B {00366896.DOC / 4} 16 Partial Release of Deed of Trust and the Final Plat are not so recorded for any reason, each must be processed and recorded as a condition of Construction Acceptance of the Tank Project. d. Rescission of Moratorium. The Resolution passed by the Authority rescinding the moratorium shall be effective upon the Implementation Date when all of the conditions set forth in this Section 10 (with the possible exception of Section 10.c) are fully satisfied and TCRP is unconditionally committed to design, finance, construct and complete the Storage Tank on behalf of TCMD and VMD. The rescission shall be effective immediately upon satisfaction of the foregoing conditions (with the possible exception of Section 10.c), and shall be evidenced by a resolution adopted by the Board of Directors of the Authority and promptly delivered to the Parties not later than the Implementation Date. e. Issuance of Water Taps. From and after the effective date of the rescission of the moratorium as provided in Section 10.d, the Authority shall issue water taps for potable water service upon payment of applicable fees, compliance with generally applicable engineering/technical requirements for connection to the Authority’s water distribution system, and compliance with the generally applicable conditions for service, all as set forth in the Authority Regulations. f. Water Service. From and after the effective date of the rescission of the moratorium as provided in Section 10.d, the Authority shall provide potable water service to the Property, subject to the terms of the decree of the District Court in and for Water Division No. 5, Case No. 97CW306, up to a maximum of 106.3 consumptive acre feet per year, and further subject to the improvements to be constructed, or improvements previously constructed, within the area of the Property physically capable of being served by the Storage Tank (at elevations one-hundred-forty (140) feet below the base of the Storage Tank, or above such elevation upon construction of additional pumping and/or tank storage capacity above such elevation). The Authority’s foregoing water service obligations are subject to the following qualifications: (i) As of the Date of Execution, an SFE is equivalent to 714 gallons of treated water storage (per Appendix C, Section 3.08 of Authority Regulations). If Authority water service of more than 2,800 SFEs (calculated at 714 gallons of treated water storage as provided above) is desired, TCMD, Master Developer or another party other than the Authority will have to provide to the Authority additional treated water storage. The foregoing shall not be construed to imply that the decree in Case No. 97CW306 permits service to approximately 2,800 SFEs. If any party wants the Authority to provide service in excess of what is authorized by the decree in Case No. 97CW306, such party first needs to provide additional ATTACHMENT B {00366896.DOC / 4} 17 water rights and pay all costs incurred by the Authority to adjudicate the necessary water rights to provide the increased level of service. (ii) Any development within the Property located at an elevation higher than the property that can be served by the Storage Tank (as described above) will require additional treated water storage to be constructed by someone other than the Authority or Avon at elevations higher than the Storage Tank elevation if such development is to be served by the Authority. Design and construction of any such additional treated water storage shall be accomplished in accordance with applicable requirements as set forth in the Authority Regulations. The Parties acknowledge that the Tank Project anticipates and has been designed to accommodate and connect to future water storage tank(s) to be located uphill from the Storage Tank. g. Authority Remedies. Notwithstanding rescission of the moratorium pursuant to Section 10.d, if TCRP does not deliver the Tank Improvements for Construction Acceptance by the Authority on or before June 30, 2015, the Authority may either (i) if the Authority is satisfied that reasonable progress has been and is being made in correcting any deficiencies that have been identified by the Authority and which require resolution prior to written Construction Acceptance, extend the deadline for Construction Acceptance; or (ii) not earlier than December 31, 2015, the Authority reserves the right to reinstate the moratorium until Construction Acceptance of the Tank Improvements occurs. If the Authority elects to reinstate the moratorium pursuant to the foregoing clause (ii), any water taps issued prior to such reinstatement shall remain valid notwithstanding such reinstatement, and such reinstatement shall be permanently rescinded and of no further force or effect as of the date upon which the Authority delivers written Construction Acceptance of the Tank Improvements (as of which date the Authority shall be precluded from imposing, continuing or re-imposing the moratorium on the issuance of water taps within the Property for failure to complete construction of the Storage Tank). h. Reliance and Enforcement. The Authority’s commitment to provide potable water service pursuant to the terms of the decree in Case No. 97CW306 up to 106.3 consumptive acre feet per year and to issue taps therefor as set forth in this Section 10 shall inure to the benefit of the other Parties, the Limited Parties and the Intended Beneficiaries. Each other Party and Limited Party shall have direct rights to enforce the Authority’s performance of its obligations pursuant to this Section 10. 11. Tank Project Financing. Pursuant to, but not limited to, the Tank Project Financing arrangements described in Section 5.5 of the Development Agreement and the ATTACHMENT B {00366896.DOC / 4} 18 Reimbursement and Pledge Agreement, TCRP on behalf of TCMD and VMD shall provide sufficient funds for completion of the Tank Project (to enable Construction Acceptance to occur on or prior to December 31, 2015) and TCMD and VMD shall reimburse TCRP. In implementation of such Tank Project Financing arrangements, the applicable parties thereto shall mutually execute and deliver a revised form of the 2012 Pledge Agreement (as so revised, the “Reimbursement and Pledge Agreement”). TCMD and VMD shall coordinate with BNP to cause the reissue of TCMD’s existing bonded indebtedness on the Implementation Date (as defined in the Development Agreement, the “2014 Bond Reissue”) so as to enable performance of TCMD’s and VMD’s obligations under the Reimbursement and Pledge Agreement. The Authority shall have no obligation to provide any financing or funding of the construction costs of the Tank Project. 12. Avon Actions. In consideration of the undertakings of the other Parties to this Tank Agreement and other benefits to Avon from implementation of the Term Sheet, as of the Implementation Date and without the requirement of further action, Avon: (i) waives and releases any claim to revenues of TCMD and VMD required to pay the Annual Debt Service Obligation (as defined in the Reimbursement and Pledge Agreement); (ii) covenants that it will exercise the right of reverter set forth in the deed referenced in Section 9.b upon a triggering event as described in Section 9.b; and (iii) covenants that it will undertake and be responsible for the provision of water service to the Property in the event of a dissolution of the Authority or otherwise upon exercising the right of reverter described in Section 9.b. 13. Other Consideration. a. Immediately upon the Implementation Date, and without the requirement of any further action, the Authority shall be deemed to have irrevocably released TCMD from any obligation to pay the sum of $20,387.22 due for the remainder of the Authority’s professional fees incurred in adjudicating a plan for augmentation and exchange to allow the Authority to use 10.8 acre-feet of storage in Wolford Mountain and Ruedi Reservoirs acquired from the Traer Creek entities. b. The amount presently due to the Authority from TCMD pursuant to the Agreement dated November 4, 2002 ($119,646.11 after application of the payment due on September 16, 2013), shall continue to be paid by TCMD in the form of annual payments to the Authority due on September 16th of each year in the amount of $11,880.24, including interest at the rate of 5.45% per annum through September 16, 2028, or until the full amount of this obligation is satisfied in full. The Authority hereby agrees no other professional fees are owed to it by TCMD, VMD or Master Developer, and the Authority hereby expressly releases any other such claims for fees through the Implementation Date. 14. Conveyance of the Tank Site; Tank Site Easement. Not later than the occurrence of the Implementation Date, TCRP shall direct the processing and recording by the Public Trustee of the Partial Release of the Deed of Trust for the benefit of Laramie Participations, Inc. which presently encumbers the Tank Site and the recording of the Final Plat for Tract J (“Tank ATTACHMENT B {00366896.DOC / 4} 19 Site”), provided the Beneficiary of the Deed of Trust does not object to such recordings. If the Partial Release of Deed of Trust and the Final Plat are not so recorded for any reason, each must be processed and recorded as a condition of Construction Acceptance of the Tank Project by the Authority. Previously TCRP deposited into the Master Escrow the following instruments: (I) a special warranty deed for the Tank Site in substantially the form attached hereto as Exhibit B (the “Tank Site Deed”); and (II) that certain Easement Agreement for Tank Project dated March 6, 2013 (to be revised and re-deposited into the Master Escrow as provided below, the “Tank Site Easement”). Recording of the Tank Site Deed and the Tank Site Easement shall be accomplished as a condition of the Authority’s granting of written Construction Acceptance with respect to the Tank Improvements. a. On or before the Implementation Date and in accordance with the Master Escrow Agreement, TCRP shall cause the deposit into the Master Escrow of the Request for Partial Release of Deed of Trust executed by Laramie Participations, Inc., together with the original promissory note and a legible copy of the deed of trust recorded June 1, 2009 at Reception No. 200910538. Upon the Implementation date, but in no event later than the Authority is requested to grant Construction Acceptance of the Tank Improvements, the Partial Release of Deed of Trust shall be recorded for the purpose of enabling recording of the Tank Site Deed and conveyance of the Tank Site to the Authority as provided herein. b. Prior to the Implementation Date, TCRP and the Authority shall modify the Easement Agreement for Tank Project that is in the Master Escrow to reflect the Realigned Access Road alignment, to reflect the modified permanent easement location for certain of the Tank Appurtenances that are to be located outside of the Tank Site, to eliminate the temporary construction and construction phasing aspects, and to otherwise conform it to the terms of this Tank Agreement. Upon completing such modifications, the Authority and TCRP shall execute and deposit the Tank Site Easement as so revised with Escrow Agent. c. In accordance with the terms and conditions of this Tank Agreement, the Tank Site Deed and the Tank Site Easement shall be delivered from the Master Escrow for recording as a condition of the Authority’s delivery of written Construction Acceptance for the Tank Improvements. 15. Effect of Prior Agreements; No Cross-Defaults. On the Implementation Date, and except to the extent that Section 2(b) and Section 5 of the Service Agreement are amended and/or superseded by the express terms of this Tank Agreement, the Service Agreement and any other agreement referenced in this Tank Agreement (not including the 2012 Tank Agreement) that was executed prior to the Implementation Date (“Prior Agreement(s)”) shall continue in effect in accordance with such agreements’ terms, and the parties thereto shall maintain all of their rights, duties and obligations set forth therein. Notwithstanding the foregoing, and notwithstanding anything to the contrary in any Prior Agreement, no default under this Tank Agreement shall be construed to be a default under any Prior Agreement and no default under any Prior Agreement shall be construed to be a default under this Tank Agreement. The 2012 ATTACHMENT B {00366896.DOC / 4} 20 Tank Agreement shall become null and void immediately upon the Date of Execution of this Agreement and any rights or obligations of the Parties created by the 2012 Tank Agreement shall immediately and irrevocably terminate and extinguish, and the Parties agree that such termination and extinguishment shall take effect on the Date of Execution of this Agreement and shall survive and continue in effect against and for the benefit of all Parties hereto even if the Implementation Date does not occur. 16. Default; Remedies; Rights of Limited Parties and Intended Beneficiaries. a. Default of a Party. A default by a Party is a failure by such Party to fully perform any of its duties and obligations set forth in this Tank Agreement. b. Default of Limited Party. The obligations of VMD under this Tank Agreement are expressly limited to those pertaining to the Tank Project Financing as generally described in Section 11. VMD shall have no liability arising pursuant to this Tank Agreement to any Party or any Intended Beneficiary except to the extent of VMD’s failure to fully perform its duties and obligations as expressly set forth in Section 11. c. Cure Period. Default will not occur until a non-defaulting Party or non-defaulting Limited Party provides the defaulting Party or defaulting Limited Party thirty (30) days written notice describing the default, and the defaulting Party or defaulting Limited Party is given the opportunity during such time to cure the default. d. Remedies. (i) Parties and Limited Parties. Upon the occurrence and continuance of an uncured default, any non-defaulting Party and/or any non-defaulting Limited Party shall, except to the extent limited by an express provision of this Tank Agreement, be entitled to enforce the provisions and any remedy provided in this Tank Agreement at law or in equity, and relief in the nature of injunctive relief, mandamus, specific performance (if allowed by law against any local government that is a Party or Limited Party) or damages or a combination thereof may be awarded. The remedies available shall include, but not be limited to, ex parte applications for temporary restraining orders, preliminary injunctions and permanent injunctions and actions for specific performance (if allowed by law against any local government that is a Party or Limited Party) of the defaulting Party’s or Limited Party’s obligations and/or damages. All of the remedies permitted or available under this Tank Agreement, at law, by statute or in equity shall be cumulative and not in the alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right or remedy. Additionally, in consideration of this Tank Agreement ATTACHMENT B {00366896.DOC / 4} 21 constituting an intergovernmental agreement by and among Avon, the Authority, TCMD and VMD, each such governmental or quasi-governmental entity expressly affirms its intent that the obligations of each such governmental or quasi-governmental entity are to be enforced in accordance with their terms. (ii) Intended Beneficiaries. (A) The Developer Affiliates shall have the right to enforce the Authority’s obligations pursuant to Section 10, together with the right to enforce any right of Master Developer and pursue any remedy available to Master Developer in the event of a default by another of the Parties. (B) Except with respect to those expressly stated rights the Intended Beneficiaries have under this Tank Agreement, no Developer Affiliate is subject to any obligation nor has it acquired any enforcement right or remedy arising solely under this Tank Agreement. 17. Assignment. Any Party or Limited Party may assign its rights, duties and obligations under this Tank Agreement upon the prior written consent of the other Parties and the Limited Parties, such consent not to be unreasonably withheld, conditioned or delayed. In addition, the assignor shall provide the other Parties and Limited Parties with copies of all relevant documentation of such assignment. Any assignment without the aforementioned required prior written consent shall be null and void. 18. No Waiver; Governmental Immunity; Annual Appropriation. Any Party’s or Limited Party’s waiver of, or failure to pursue any available remedy for, a breach of any term or provision of this Tank Agreement shall not operate or be construed as a waiver of any subsequent breach by any Party or Limited Party. Additionally, and notwithstanding any provision of this Tank Agreement to the contrary, no term or condition of this Tank Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to TCMD, VMD, the Authority and Avon under the Colorado Governmental Immunity Act, §§ 24-10-101 et seq., C.R.S. The financial obligations of the Authority and Avon hereunder, if any, are subject to the annual appropriation of funds necessary for the performance thereof, which appropriations shall be made in the sole discretion of the Authority’s Board of Directors or the Avon Town Council as applicable. 19. Amendment; Modification. This Tank Agreement may be modified only by the signed, written agreement of the Parties or their respective agents, successors and assigns. The prior written consent of the Limited Parties shall not be required except to the extent the proposed modification directly and expressly affects a right or obligation of the Limited Parties, and such consent shall not be unreasonably withheld, conditioned or delayed. Additionally, the Parties and the Limited Parties acknowledge that the 2014 Bond Reissue documentation is anticipated to preclude TCMD and/or VMD from entering into any modification of this Tank Agreement without the prior written consent of BNP, which consent BNP shall not unreasonably withhold, condition or delay. ATTACHMENT B {00366896.DOC / 4} 22 20. Further Cooperation. The Parties and Limited Parties shall reasonably cooperate with one another to effectuate the intent of the Parties and Limited Parties as described herein, including without limitation, executing any and all further instruments and documents, and doing and performing such further and additional acts and things necessary or proper to effectuate or further evidence the terms and provisions of this Tank Agreement. 21. Proper Authority. The Parties and the Limited Parties represent and warrant that they have full right and capacity to enter into this Tank Agreement and have taken any and all actions required and have any and all necessary approvals to enter into this Tank Agreement. 22. Attorneys’ Fees. The prevailing Party or Limited Party in any action concerning the enforcement or interpretation of this Tank Agreement shall be awarded, in addition to any damages or other form of relief awarded, all reasonable costs incurred in connection therewith, including reasonable attorneys’ fees and costs through all appeals. 23. Governing Law. This Tank Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. Any action brought to enforce this Tank Agreement or arising out of this Tank Agreement shall be brought in the State of Colorado, Eagle County District Court, as the exclusive venue and forum. 24. Severability. If any term, provision, covenant or condition of this Tank Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Tank Agreement shall, unless amended or modified as provided in Section 19, continue in full force and effect so long as enforcement of the remaining provisions would not deprive the Party(ies) or Limited Parties against whom they are being enforced of a material benefit of the bargain under this Tank Agreement or otherwise be inequitable to such Party or Limited Party under the facts and circumstances then pertaining. 25. Entire Agreement. From and after the Date of Execution, this Tank Agreement shall be construed to constitute the entire agreement between the Parties and Limited Parties with respect to the matters set forth herein and to supersede all previous oral or written communications, representations, understandings, undertakings, or agreements between the Parties and Limited Parties (including but not limited to the 2012 Tank Agreement), except as otherwise stated herein, specifically including Section 3 of the Term Sheet except as it pertains to the 1041 Permit. 26. Counterpart Execution. This Tank Agreement may be signed in multiple counterparts, with facsimile signatures permitted, and each counterpart when taken with the other executed counterpart shall constitute a binding agreement among the Parties and the Limited Parties as of the Implementation Date, except as otherwise herein provided. 27. Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Tank Agreement shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, addressed to the respective Parties, Limited Parties or Intended Beneficiaries at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually ATTACHMENT B {00366896.DOC / 4} 23 given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, return receipt requested, three (3) business days after mailed. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): To the Authority: Upper Eagle Regional Water Authority 846 Forest Road Vail, CO 81657 Attention: General Manager Telephone: (970) 477-5444 Email: lbrooks@erwsd.org With a required copy to: Collins, Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 Attn: Jim Collins Telephone: (303) 986-1551 Email: jcollins@cccfirm.com To Avon: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attention: Town Manager Telephone: (970) 748-4452 Email: vegger@avon.org With a required copy to: Town of Avon P.O. Box 975 One Lake Street Avon, Colorado 81620 Attn: Town Attorney To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 ATTACHMENT B {00366896.DOC / 4} 24 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To Master Developer: Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com To Traer Creek-RP LLC: c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above.] To the Limited Parties: The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, CO 80228 Attn: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attn: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com BNP Paribas ATTACHMENT B {00366896.DOC / 4} 25 Value Preservation Group 787 Seventh Avenue, 9th Floor New York, NY 10019 Attn: Barbara Eppolito Telephone: (212) 841-3607 Email: Barbara.eppolito@bnpparibas.com With a required copy to: Faegre Baker Daniels 3200 Wells Fargo Center 1700 Lincoln Street Denver, CO 80203-4532 Attn: Brandee Caswell Telephone: (303) 607-3826 Email: Brandee.caswell@faegrebd.com To the Intended Beneficiaries: Developer Affiliates c/o Traer Creek LLC [Utilizing the Master Developer contact information set forth above, except for EMD Limited Liability Company.] EMD Limited Liability Company c/o Traer Creek LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, CO 81620 Attn: Michael Lindholm, Manager Telephone: (970) 949-6776 Email: michaellindholm@traercreek.com 28. Successors and Assigns. This Tank Agreement shall be binding upon the Parties, the Limited Parties and upon their respective heirs, personal representatives, successors and assigns. [Separate Signature Pages Follow This Page] ATTACHMENT B {00366896.DOC / 4} 26 IN WITNESS WHEREOF, this Tank Agreement has been duly executed by the Parties and by the Limited Parties as of the Date of Execution of this Tank Agreement set forth above. THE AUTHORITY: THE UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Linn Brooks Title: General Manager Date: ____________, 2014 ATTACHMENT B {00366896.DOC / 4} 27 AVON: THE TOWN OF AVON, a home rule municipal corporation of the State of Colorado By: Name: Title: Date: ____________, 2014 ATTACHMENT B {00366896.DOC / 4} 28 TCMD: TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President Date: ____________, 2014 Attest: Secretary ATTACHMENT B {00366896.DOC / 4} 29 MASTER DEVELOPER: TRAER CREEK LLC, a Colorado limited liability company By: Name: Marcus Lindholm Title: Manager Date: ____________, 2014 ATTACHMENT B {00366896.DOC / 4} 30 TCRP: TRAER CREEK-RP LLC, a Colorado limited liability company By: TRAER CREEK LLC, a Colorado limited liability company, its Manager By: Name: Marcus Lindholm Title: Manager Date: ____________, 2014 ATTACHMENT B {00366896.DOC / 4} 31 VMD: THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: Name: Daniel J. Leary Title: President Date: ____________, 2014 Attest: Secretary ATTACHMENT B {00366896.DOC / 4} 32 BNP: BNP PARIBAS, a financial institution organized under the laws of the Republic of France By: _________________________ Name: _______________________ Title: ________________________ Date: ____________, 2014 By: _________________________ Name: _______________________ Title: ________________________ Date: ____________, 2014 ATTACHMENT B {00366896.DOC / 4} A-1 1007365.15 Exhibit A Legal Description of the Property (Follows This Page) [Source: Exhibit A to Service Agreement, May 15, 1997] ATTACHMENT B {00366896.DOC / 4} A-2 1007365.15 ATTACHMENT B {00366896.DOC / 4} A-3 1007365.15 ATTACHMENT B {00366896.DOC / 4} A-4 1007365.15 ATTACHMENT B {00366896.DOC / 4} B-1 1007365.15 Exhibit B Form of Special Warranty Deed to the Tank Site (Follows this Page) ATTACHMENT B {00366896.DOC / 4} B-2 1007365.15 ATTACHMENT B KR DRAFT 3/5/14 4821-4720-5912.4 TANK PROJECT FINANCING REIMBURSEMENT AND PLEDGE AGREEMENT This TANK PROJECT FINANCING REIMBURSEMENT AND PLEDGE AGREEMENT (this “Pledge Agreement”), is made and entered into and dated as of ________________ ____, 2014 (“Execution Date,” as further defined herein) by and among TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (together with its successors and permitted assigns, “TCMD”), THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (together with its successors and permitted assigns, “VMD,” and together with TCMD, the “Districts”), and TRAER CREEK-RP LLC (together with its successors and permitted assigns, “TC-RP”) a Colorado limited liability company. RECITALS A. Initially capitalized words and phrases used in this Pledge Agreement, but not otherwise defined, have the meanings set forth in Exhibit B, which definitions are incorporated herein, along with the definitions of other initially capitalized words and phrases that are concurrently defined; B. TCMD has previously issued its Series 2002 and 2004 TCMD Bonds; C. Payment of the Series 2002 and 2004 TCMD Bonds is secured as provided in the Indenture of Trust, dated as of May 1, 2002, and the Indenture of Trust, dated as of June 1, 2004, each by and between TCMD and U.S. Bank National Association, as trustee for the Series 2002 and 2004 TCMD Bonds, and also by an irrevocable letter of credit issued by BNP; D. All amounts due to BNP, as provider of the letter of credit securing the Series 2002 and 2004 Bonds, are secured as provided in the Amended and Restated Reimbursement Agreement, dated as of June 1, 2004, by and among TCMD, VMD and BNP; E. TCMD and other entities are parties to that certain litigation (consolidated civil action Case No. 2008CV385, Eagle County District Court), and have entered into the Term Sheet, to set forth the agreement of the parties thereto concerning resolution of various disputes at issue in the litigation; F. Pursuant to the Term Sheet (but with modifications as have been agreed to by the parties thereto), the Authority, TCMD, TC-RP, the Town, Traer Creek LLC and certain “Limited Parties” (as defined therein as including, among others, VMD) have entered into the Tank Agreement to, inter alia, implement certain provisions of the Development Agreement relating to the construction of a water storage tank, in which TC-RP is designing, financing and constructing the Tank Project on behalf of the Districts, and to address other related matters; G. Pursuant to the Term Sheet (but with modifications as have been agreed to by the parties thereto), the Development Agreement (which is to be recorded in the real property records of Eagle County, Colorado on the Implementation Date) has been approved by the necessary entities and includes certain material and binding terms pursuant to which the Tank Project Financing will occur; ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 H. Pursuant to and in implementation of the Development Agreement, the Parties have agreed that the principal amount to be repaid to TC-RP for the Tank Project Financing is $7,200,000, notwithstanding that the actual cost of the Tank Project may be more or less than such amount, plus interest at the Interest Rate in accordance with this Pledge Agreement; I. Prior to the Acceptance Date, the revenues pledged herein to pay the Annual Debt Service Obligation (as defined herein) are pledged to pay all amounts due to BNP under the Amended and Restated Reimbursement Agreement, dated as of June 1, 2004, by and among the Districts and BNP and the reimbursement agreement entered into in connection with the 2014 Bond Reissue; J. As of the Implementation Date, BNP has consented to release, on and after the occurrence of the Acceptance Date, the amount necessary to pay the Annual Debt Service Obligation from the pledge of revenues made to BNP in connection with the 2014 Bond Reissue (the “BNP Pledge”); K. Pursuant to and in implementation of the Development Agreement, any and all amounts due to TC-RP for payment of Deferred Reimbursement amounts, together with interest thereon, in connection with the Tank Project Financing in excess of the Annual Debt Service Obligation will be payable by the Districts on terms set forth in ARTICLE III hereof, and such Deferred Reimbursement amounts, together with interest thereon, will be subordinate in all respects to the BNP Pledge; L. The Term Sheet contemplated the satisfaction of various mutually dependent conditions, including but not limited to the restructuring of the Series 2002 and 2004 TCMD Bonds in accordance with the Development Agreement in a manner sufficient to, among other things, facilitate the performance by TCMD and VMD of their respective obligations pursuant to the Development Agreement and this Pledge Agreement; M. TCMD, VMD and TC-RP are entering into this Pledge Agreement for the purpose of obligating TCMD and VMD to pay the Annual Debt Service Obligation and Semi-Annual Payments to TC-RP, and to address payment of Deferred Reimbursement amounts, if any, together with interest accrued thereon, for repayment of the Tank Project Financing, and to recognize other amounts that may be due to TC-RP in the future, subject to the conditions and limitations set forth herein; N. Certain Settlement Implementation Documents (including but not limited to this Pledge Agreement) required to implement the Term Sheet have been deposited pursuant to the [Amended Escrow Agreement] into the Escrow, and are to be released from the Escrow and delivered and/or recorded, as applicable, on the Implementation Date contemporaneously with the closing of the 2014 Bond Reissue; O. Certain Tank Site Documents required to implement the Development Agreement provisions pertaining to the Tank Project have been deposited pursuant to the [Amended Escrow Agreement] into the Escrow, and are to be released from the Escrow and delivered and/or recorded, as applicable, and be legally binding and effective on or before the Acceptance Date; and ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 P. The Districts have determined and hereby determine that the execution and deposit into the Escrow for release and delivery of this Pledge Agreement on the Implementation Date is in the best interests of the Districts and the residents, property owners, users and taxpayers thereof. AGREEMENTS NOW, THEREFORE, for and in consideration of the promises and the mutual covenants and stipulations herein, the parties hereby agree as follows: ARTICLE I INTERPRETATION Section 1.01. Interpretation. Although the Parties have executed this Pledge Agreement as of the Execution Date and deposited it into the Escrow prior to the Implementation Date, this Pledge Agreement by its terms takes effect and becomes binding on the Parties on the Implementation Date and terminates after sixty (60) Semi-Annual Payments have been made in full, or the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof. In this Pledge Agreement, unless the context expressly indicates otherwise, the interpretations and meanings set forth below shall apply: (a) The terms “herein,” “hereunder,” “hereby,” “hereto,” “hereof” and any similar terms, refer to this Pledge Agreement as a whole and not to any particular article, section, or subdivision hereof; the term “heretofore” means before the date of execution of the Pledge Agreement; and the term “hereafter” means after the date of execution of this Pledge Agreement. (b) All definitions, terms, and words shall include both the singular and the plural. (c) Words of the masculine gender include correlative words of the feminine and neuter genders, and words importing the singular number include the plural number and vice versa. (d) The captions or headings of this Pledge Agreement are for convenience only, and in no way define, limit, or describe the scope or intent of any provision, article, or section of this Pledge Agreement. (e) All schedules, exhibits, and addenda referred to herein are incorporated herein by this reference. Section 1.02. Intent of the Parties. The Parties to this Pledge Agreement acknowledge and agree that, as more specifically set forth in the Tank Agreement to which they are also parties: ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 (a) The improvements comprising the Tank Project are public improvements the Districts are authorized to provide pursuant to the authority granted by statute and their respective Service Plans; (b) The parties to the Tank Agreement entered into the 2012 Tank Agreement, pursuant to which the Authority had agreed to finance the Tank Project, but subsequently determined that sufficient funding was not available to the Authority to finance the Tank Project; (c) Subsequently, the parties to the 2012 Tank Agreement entered into the Tank Agreement pursuant to which TC-RP agreed to finance and construct the Tank Project on the Districts’ behalf in consideration for, including, but not limited to, the Authority’s commitment to provide water service and issue taps to property within the Districts and the right to be reimbursed by the Districts as set forth in this Pledge Agreement; (d) TC-RP is obligated to construct the Tank Project in accordance with construction plans approved by TCMD and the Authority and applicable rules and regulations of the Authority and the Town; (e) Upon Construction Acceptance (as defined in the Tank Agreement, and generally defined herein as the Acceptance Date), the Authority shall own and shall be and remain solely responsible at its sole cost and expense (subject to the applicable two (2) year warranty period in accordance with the Tank Agreement) for all ongoing ownership, operations and maintenance of the Tank Site and Tank Improvements, subject to applicable warranties in accordance with the Tank Agreement; and (f) The access road shall be maintained in accordance with paragraph 4 of the Tank Site Easement (as such term is defined in the Tank Agreement). ARTICLE II ANNUAL DEBT SERVICE OBLIGATION Section 2.01. No Additional Electoral Approval Required. With respect to the Districts’ obligation to repay the Minimum Amount Due, the authorization for issuance of debt, fiscal year spending, revenue collections and other constitutional matters requiring voter approval for purposes of this Pledge Agreement was approved at elections held by VMD on November 6, 2001 and TCMD on November 6, 2001 and November 5, 2002, in accordance with law and pursuant to due notice. The performance of the terms of this Pledge Agreement by the Districts regarding repayment of the Minimum Amount Due requires no further electoral approval. The Districts have determined that, for purposes of appropriately allocating their respective electoral debt authorization to the Annual Debt Service Obligation herein, the Annual Debt Service Obligation shall be characterized as a debt in the principal amount equal to the principal amount of the Tank Project Financing ($7,200,000), issued for the purpose of funding costs of water system infrastructure. Furthermore, because the Districts cannot determine the precise amount of Annual Debt Service Obligation and Semi-Annual Payments that will be ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 funded by each of the Districts, each of the Districts shall allocate the full principal amount of the Tank Project Financing to its electoral debt authorization. Section 2.02. Annual Debt Service Obligation; Limited Tax General Obligation. (a) In exchange for the undertaking of TC-RP set forth in the Development Agreement to design, finance and construct the Tank Project on behalf of the Districts in the amount necessary to complete the Tank Project, TCMD and VMD jointly and severally agree to pay or cause to be paid the Annual Debt Service Obligation to TC-RP by paying the Semi-Annual Payments to TC-RP on the Payment Dates. The Districts jointly and severally agree to deposit or cause to be deposited into the Senior Payment Fund, the Tank Project Property Tax Revenues, the Other Pledged Revenues, or other legally available revenues of the Districts, in an amount sufficient to pay the Semi- Annual Payment due on each Payment Date. The Districts agree to include in the appropriate transaction document for the TCMD Refunding Bonds, a provision that requires that a minimum of $250,000 be on deposit in the Senior Payment Fund prior to payment of any principal amount due, whether on a maturity or redemption date. (b) The joint and several obligations of the Districts to pay the Annual Debt Service Obligation and the Semi-Annual Payments shall constitute limited tax obligations of each District payable from the Tank Project Property Tax Revenues or other legally available revenues of the Districts, including, in the case of TCMD, the Other Pledged Revenues. This Pledge Agreement and the obligation to pay the Annual Debt Service Obligation and the Semi-Annual Payments shall constitute a first and prior irrevocable lien upon the Tank Project Property Tax Revenues, the Other Pledged Revenues, other legally available revenues of the Districts and the Senior Payment Fund. The Districts hereby elect to apply all of the provisions of the Supplemental Act to the Districts’ obligation to pay the Annual Debt Service Obligation and the Semi-Annual Payments pursuant to this Pledge Agreement (but specifically not as applied to the Districts’ obligation to repay Deferred Reimbursement amounts pursuant to ARTICLE III of this Pledge Agreement). (c) There is hereby established and created a fund of TCMD, the Senior Payment Fund, which shall be established as a depository account owned by TCMD. The Senior Payment Fund shall not be maintained at BNP or a BNP related bank nor shall the amounts held in the Senior Payment Fund be invested with or controlled by BNP or a BNP related bank. TCMD hereby agrees to maintain the Senior Payment Fund from and after the Acceptance Date until sixty (60) Semi-Annual Payments have been made in full, or the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof. The Tank Project Property Tax Revenues, the Other Pledged Revenues or other legally available revenues of the Districts shall be credited to the Senior Payment Fund so that on or before each Payment Date the balance of the Senior Payment Fund is sufficient to pay the Semi-Annual Payment due on such Payment Date. On or before each Payment Date, commencing on the first Payment Date occurring after the Acceptance Date, TCMD shall pay to TC-RP the Semi-Annual Payment due on such Payment Date. When TCMD has paid to TC-RP the Annual Debt Service Obligation for the then current calendar year, or has accumulated the full amount of the balance of the Annual Debt ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Service Obligation/Semi-Annual Payments due in the then current calendar year, no further amounts need be deposited to the Senior Payment Fund in such calendar year. Any balance remaining in the Senior Payment Fund after the Annual Debt Service Obligation has been paid in full for the then current calendar year shall be applied (1) to pay the obligations in the priority set forth in Section 6.9 of the Development Agreement; and (2) during the term of the Development Agreement and thereafter, to any other legal or lawful purposes, including, but not limited to payment of obligations pursuant to the Funding Agreement. (d) All amounts payable by the Districts hereunder to TC-RP shall be paid in lawful money of the United States of America by check mailed or delivered, or by wire transfer, to TC-RP or to its designee, in accordance with TC-RP’s written instruction. In the event of a shortfall in the amount of the Annual Debt Service Obligation and Semi- Annual Payments, all payments shall be applied first to accrued but unpaid interest at the imputed interest rate of 5.673% and then to principal of the Tank Project Financing. (e) The Districts may, at any time, refinance or prepay the Tank Project Financing with TC-RP’s prior written consent, to be granted or withheld in TC-RP’s sole and unilateral discretion; provided, however, that such consent shall not be required if (1) all Semi-Annual Payments due and payable on or prior to the date of such refinancing or prepayment have been paid in full on or prior to the date of such prepayment, and (2) the Districts also pay (A) the principal amount of the Minimum Amount Due then remaining owed and unpaid to TC-RP, (B) interest accrued on such principal amount from the date of the last Semi-Annual Payment to the date of such refinancing or prepayment computed at the rate of 5.673%, and (C) the cumulative amount of outstanding Deferred Reimbursement amounts from the Acceptance Date to the date of the refinancing or prepayment. For the purpose of refinancing or prepayment of the Tank Project Financing without the consent of TC-RP, the Districts are not required to pay the interest accrued on the Deferred Reimbursement Amounts (which interest shall remaining outstanding and payable as a Non-Credit PIF Revenue Reimbursement), nor any Deferred Reimbursement amounts that have been or are converted to Non-Credit PIF Revenues Reimbursements at or prior to any refinance or prepayment (which shall also remain outstanding until paid). If a refinancing or prepayment occurs during any year, the Deferred Reimbursement amount for that year will be pro-rated based on a 365-day year and the actual number of days elapsed. If the Tank Project Financing is refinanced or otherwise prepaid as provided above, the Funding Agreement required pursuant to ARTICLE III shall provide that interest on Deferred Reimbursement amounts that has accrued and remains unpaid, if any, shall remain payable as a Non-Credit PIF Revenue Reimbursement as provided in Section 5.5(b)(iv)(B)2 of the Development Agreement. Section 2.03. Imposition of Senior Required Mill Levy. (a) In order to be prepared to pay the Annual Debt Service Obligation and the Semi-Annual Payments, commencing in 2015, the year prior to the year in which the Acceptance Date is expected to occur, and continuing until sixty (60) Semi-Annual Payments have been made in full, or until the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof, each District agrees to levy, in 2014 ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 and each year thereafter during the time period previously described in this subsection (a), on all of the taxable property in such District, in addition to all other taxes, direct annual taxes in the amount of the applicable Senior Required Mill Levy. Nothing herein shall be construed to require a District at any time to impose an ad valorem property tax levy for the payment of the Annual Debt Service Obligation in excess of the Senior Required Mill Levy. In any year that the Senior Required Mill Levy has been imposed, but the Acceptance Date has not occurred or does not occur on or prior to May 14th, and no Semi-Annual Payments or only one Semi-Annual Payment is due, then on or after November 16th, any remaining revenues collected from the Senior Required Mill Levy shall be applied to the obligations set forth in Section 6.9 of the Development Agreement. (b) This Section 2.03 is hereby declared to be the certificate of the Districts to the Board of County Commissioners indicating the aggregate amount of taxes to be levied for the purposes of paying the Annual Debt Service Obligation and the Semi- Annual Payments due hereunder. (c) It shall be the duty and legally binding obligation of each District annually at the time and in the manner provided by law for the levying of its taxes, if such action shall be necessary to effectuate the provisions of this Pledge Agreement, to ratify and carry out the provisions hereof with reference to the levy and collection of the Senior Required Mill Levy, and to require the officers of such District to cause the appropriate officials of Eagle County to levy, extend and collect said Senior Required Mill Levy in the manner provided by law for the purpose of providing funds for the payment of the Annual Debt Service Obligation and the Semi-Annual Payments to be paid hereunder promptly as the same, respectively, become due. Said taxes, when collected, shall be applied only to the payment of the Annual Debt Service Obligation and Semi-Annual Payments due in accordance with the terms and conditions of this Pledge Agreement. (d) Said taxes shall be levied, assessed, collected, and enforced at the time and in the form and manner and with like interest and penalties as other general taxes in the State. (e) Each District shall pursue all remedies available to such District pursuant to State law to collect, or cause the collection of, delinquent ad valorem taxes within its boundaries. Section 2.04. Pledge of Other Pledged Revenues by TCMD. TCMD hereby pledges the Other Pledged Revenues to TC-RP to further secure the payment of the Annual Debt Service Obligation and Semi-Annual Payments. From and after the Acceptance Date, the Annual Debt Service Obligation and Semi-Annual Payments shall constitute a first and prior irrevocable lien on the Other Pledged Revenues. From and after the Acceptance Date, TCMD shall pay or cause to be paid to TC-RP Other Pledged Revenues to the extent necessary to cause the balance in the Senior Payment Fund to equal the Semi-Annual Payment due on the next Payment Date. When one or both of the Districts have imposed the Senior Required Mill Levy, or when the balance in the Senior Payment Fund equals the Semi-Annual Payment due on the next Payment Date, the Other Pledged Revenues shall be applied (1) to pay other District obligations in the priority set forth in Section 6.9(b) of the Development Agreement; and (2) during the term of the ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Development Agreement and, thereafter, to any other legal or lawful purposes, including, but not limited to, payment of obligations pursuant to the Funding Agreement. Section 2.05. Limitations on Annual Debt Service Obligation. In no event shall the total or annual obligations of either District hereunder exceed the maximum amounts permitted under its electoral authority and any other applicable law. The obligation to pay the Annual Debt Service Obligation and Semi-Annual Payments will be deemed of no further force or effect with respect to both Districts when sixty (60) Semi-Annual Payments have been made in full, or the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums herein required to pay the Annual Debt Service Obligation and Semi-Annual Payments due from the Districts hereunder are hereby appropriated for that purpose, and said amounts for each year shall be included in the annual budget and the appropriation resolution or measures to be adopted or passed by the Board of Directors of each District in each year while any of the obligations herein authorized are outstanding and unpaid. No provisions of any constitution, statute, resolution or other order or measure enacted after the execution of this Pledge Agreement shall in any manner be construed as limiting or impairing the obligation of the Districts to pay the Annual Debt Service Obligation and Semi-Annual Payments as provided herein. Section 2.07. Limited Defenses. It is understood and agreed by the Districts that their obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated herein, and so long as any obligation of a District hereunder remains unfulfilled, such District agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim, estoppel, or other defenses to its Annual Debt Service Obligation or the obligation to make the Semi-Annual Payments, or take or fail to take any action which would delay payment of the Annual Debt Service Obligation or a Semi-Annual Payment to TC-RP or TC-RP’s ability to receive payments due hereunder. Section 2.08. Conditions to Implementation Date. All of the conditions set forth below shall have been satisfied on or before the Implementation Date. (a) Each Party’s execution and deposit into the Escrow of this Pledge Agreement, together with execution and deposit into the Escrow by BNP of the Acknowledgement and Consent attached hereto as Exhibit A. (b) Execution and delivery of an Implementation Notice pursuant to Section 6(a) of the [Amended Escrow Agreement] prior to the Outside Date; (c) Issuance by TCMD of the TCMD Refunding Bonds; and (d) Escrow Agent’s (as defined in the [Amended Escrow Agreement]) performance of its obligations, pursuant to Section 6(a)(iv) of the [Amended Escrow Agreement], to conduct the SID Escrow Closing on the Implementation Date and to release, deliver and/or record the Settlement Implementation Documents in accordance with the Document Disposition Instructions (as defined in the [Amended Escrow Agreement]). ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 ARTICLE III REPAYMENT OF DEFERRED REIMBURSEMENT AMOUNTS Section 3.01. Funding Agreement. Concurrently with the occurrence of the Acceptance Date, the Parties shall execute and deliver the Funding Agreement. The Funding Agreement shall set forth the terms and conditions of repayment, interest rate and other conditions pertaining to the Districts’ obligation to reimburse TC-RP for Deferred Reimbursement amounts, if any, payable pursuant to the Tank Project Financing. Except as TC- RP otherwise may agree in writing, the Districts’ repayment obligations pursuant to the Funding Agreement shall not be governed by or subject to the Supplemental Act or by Section 32-1- 1101(1)(c), Colorado Revised Statutes, as amended. The Funding Agreement shall implement and contain terms not in conflict with those contained in Section 5.5(b) of the Development Agreement. Section 3.02. Deferred Reimbursements. Payment of each Deferred Reimbursement, and payment of accrued interest on each such Deferred Reimbursement, shall be deferred (and paid with funds other than the funds raised from the Senior Required Mill Levy) until such time as the Districts have available funds (from a source other than the Senior Required Mill Levy) to make such payments in accordance with the prioritization set forth in Section 6.9 of the Development Agreement and otherwise subject to the terms and conditions set forth in Section 5.5(b)(iv) of the Development Agreement. Without limitation of the foregoing. (a) The Deferred Reimbursement amounts, if any, shall be determined as of the Acceptance Date using the formula set forth in Section 5.5(b)(iii) of the Development Agreement, and such Deferred Reimbursement amounts shall be set forth in the Funding Agreement. (b) Pursuant to Section 5.5(b)(iv) of the Development Agreement, the Funding Agreement shall provide that each Deferred Reimbursement amount shall initially be classified under Additional Developer Advances (as defined in the Development Agreement), but that TC-RP shall have the right in its sole discretion to convert any amount of any Deferred Reimbursement amount that is initially characterized under Additional Developer Advances to a Non-Credit PIF Revenue Reimbursement obligation; provided, however, that once classified as a Non-Credit PIF Revenue Reimbursement, the Deferred Reimbursement may not be re-classified under Additional Developer Advances. (c) The Funding Agreement shall provide that no Credit PIF Revenues (as defined in the Development Agreement) may be used to repay any Deferred Reimbursement amount that has been classified as a Non-Credit PIF Revenue Reimbursement amount. Section 3.03. Interest on Deferred Reimbursements. The Funding Agreement shall provide that Deferred Reimbursement amounts (whether classified under Additional Developer Advances or as a Non-Credit PIF Revenue Reimbursement) shall accrue interest at such rate(s) and shall be payable on such terms as agreed to between TCMD and TC-RP (and VMD to the ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 extent the repayment of such interest can be made from VMD property taxes), which rate(s) and terms shall be stated in the Funding Agreement. Section 3.04. Prepayment or Refinancing. The Funding Agreement shall provide that, if the Districts refinance or prepay the Tank Project Financing pursuant to Section 2.02 (e) and, in connection therewith, are required to pay the cumulative amount of Deferred Reimbursements from the Acceptance Date to the date of the refinancing or prepayment, any interest on Deferred Reimbursement amounts that has accrued and remains unpaid shall remain payable as a Non- Credit PIF Revenue Reimbursement as provided in Section 5.5(b)(iv)(B)2 of the Development Agreement. ARTICLE IV COVENANTS, REPRESENTATIONS AND WARRANTIES Section 4.01. Covenants of TC-RP. (a) TC-RP shall design, finance, construct, and complete the Tank Project on behalf of the Districts in conformance with the requirements set forth in the Tank Agreement. (b) Any construction contract for all or any portion of the Tank Project shall require the contractor to provide a warranty for a period of two (2) years for the subject improvements in accordance with the Tank Agreement, together with a security mechanism to secure the warranty approved by TCMD or as required by the Authority. (c) If TCMD so requests, TC-RP shall provide periodic reports on the status of completion of Tank Project construction. (d) TC-RP shall provide to TCMD: (i) As-built drawings for the Tank Project; (ii) Lien waivers and indemnifications from each contractor verifying that all amounts due to contractors, subcontractors, material providers or suppliers have been paid in full, in a form reasonably acceptable to TCMD; (iii) An assignment from TC-RP to TCMD or, if so directed by TCMD, to the Authority for those portions of the Tank Project to be dedicated to the Authority of any warranties associated with the Tank Project improvements, in accordance with the Tank Agreement, as applicable; (iv) Copies of all contracts, pay requests, change orders, invoices, the final AIA payment form (or similar form), canceled checks and any other requested documentation to verify costs paid by TC-RP; and (v) Such other documentation, records and verifications as may reasonably be required by TCMD. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Section 4.02. Additional Covenants of the Districts. (a) On the Acceptance Date, the Districts shall use their best efforts to deliver an opinion from a nationally recognized bond counsel, in form and substance satisfactory to TC-RP, addressed to TC-RP to the effect that the Districts’ promise to pay the Annual Debt Service Obligation and the Semi-Annual Payments from the sources pledged herein is a valid and binding obligation of the Districts. (b) Except for the TCMD Refunding Bonds, the Districts will not issue or incur bonds, notes, or other obligations payable in whole or in part from, or constituting a lien upon, the Tank Project Property Tax Revenues, the Other Pledged Revenues, or the Senior Payment Fund without the prior consent of TC-RP; provided, however, that the Districts may issue obligations with a lien on the Other Pledged Revenues which is subordinate to the lien of this Pledge Agreement without the consent of TC-RP so long as no Event of Default exists under this Pledge Agreement. (c) At least once a year as required by applicable State law, each of the Districts will cause an audit to be performed of the records relating to revenues and expenditures of the Districts and the Districts shall use their best efforts to have such audit report completed no later than 210 days after the end of any calendar year. The foregoing covenant shall apply notwithstanding any State law audit exemptions that may exist. In addition, at least once a year as required by applicable State law, each District will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places, time, and manner as required by applicable State law. (d) Each District covenants that it will not take any action or fail to take any action which action or failure to act would release any property which is included within the boundaries of the District at any time from liability for the payment of amounts due under this Pledge Agreement. (e) Each District covenants that it shall not take any action or fail to take any action which action or failure to act would result in a material impairment of the rights of TC-RP under this Pledge Agreement and that it will diligently, in good faith, and with best efforts seek to prevent, to the fullest extent permitted by law the taking of such action. (f) Each District will at all times preserve and maintain its existence, rights and privileges in the State. (g) Not later than January 15 of each year, each District shall provide TC-RP a certificate of an authorized officer of the District setting forth (A) the amount of the Senior Required Mill Levy certified in December of the immediately preceding year for collection in the current year and (B) the balance of the Senior Payment Fund as of the date of certification. Section 4.03. Representations and Warranties of the Districts. Each of TCMD and VMD hereby makes the following representations and warranties as of the Implementation Date, which representations and warranties shall be deemed re-made as of the Acceptance Date: ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 (a) The District is a quasi-municipal corporation and political subdivision duly organized and validly existing under the laws of the State. (b) On and after the Acceptance Date, there will be no liens on the Tank Project Property Tax Revenues, the Other Pledged Revenues or any other revenues pledged herein, or the Senior Payment Fund senior to or on parity with the liens created by this Pledge Agreement. (c) The District has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The District’s execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (d) The District is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the District to perform its obligations hereunder. The execution, delivery and performance by the District of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the District in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the District pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the District is a party or which purports to be binding upon the District or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. (e) The District has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the District of this Pledge Agreement. (f) Except as described in the recitals hereof, there is no action, suit, inquiry, investigation, or proceeding to which the District is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the District threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the District is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or TC-RP or ability of the District to perform its obligations under, this Pledge Agreement. (g) This Pledge Agreement constitutes the legal, valid, and binding limited tax general obligation of each District, enforceable against the District in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 similar laws affecting creditors’ rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). ARTICLE V EVENTS OF DEFAULT AND REMEDIES Section 5.01. Events of Default. The occurrence or existence of any one or more of the following events shall be an “Event of Default” hereunder: NOTE ITEM REMAINING IN DISPUTE: BNP HAS REQUESTED THAT AN EVENT OF DEFAULT BE ADDED TO THE EFFECT THAT THE DISTRICTS ARE SUED OVER TANK CONSTRUCTION DEFECTS OF TANK DELIVERY. ALTERNATIVELY, BNP WILL ACCEPT A COVENANT FROM TR-RP THAT INDEMNIFIES AND PROMISES TO PROVIDE DEFENSE COSTS TO THE DISTRICTS IN THE EVENT SUCH A LAWSUIT IS FILED. TC-RP HAS NOT AGREED TO THIS REQUEST. (a) The Districts fail to pay any Semi-Annual Payment when due on any Payment Date; (b) The Districts fail to levy, collect and apply Tank Project Property Tax Revenues as required by the terms of this Pledge Agreement; (c) TCMD fails to collect and apply the Other Pledged Revenues as required by the terms of this Pledge Agreement; (d) TCMD fails to apply amounts in the Senior Payment Fund as required by the terms of this Pledge Agreement; (e) Any representation or warranty made by a District in this Pledge Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Party; (f) (1) Any District fails in the performance of any other of its covenants in this Pledge Agreement, and such failure continues for sixty (60) days after written notice specifying such default and requiring the same to be remedied is given by TC-RP; or (g) Either District shall commence any case, proceeding, or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with respect to it or seeking to adjudicate it insolvent or bankrupt or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, or other similar official for itself or for any substantial part of its property, or either District shall make a general assignment for the benefit of its creditors; or (2) there shall be commenced against either District any case, proceeding, or other action of a nature referred to in clause (1) and the same shall remain not dismissed within ninety (90) ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 days following the date of filing; or (3) there shall be commenced against either District any case, proceeding, or other action seeking issuance of a warrant of attachment, execution, distrait, or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from the entry thereof, or (4) either District shall take action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (1), (2) or (3) above; or (4) either District shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due. Section 5.02. Remedies for Events of Default. Upon the occurrence and continuance of an Event of Default, TC-RP may proceed to protect and enforce its rights against the Districts, by mandamus or such other suit, action, or special proceedings in equity or at law, in any court of competent jurisdiction, including an action for specific performance. In the event of any litigation or other proceeding to enforce any of the terms, covenants or conditions hereof, the prevailing Party in such litigation or other proceeding shall obtain, as part of its judgment or award, its reasonable attorneys’ fees and costs. Beginning thirty (30) days after the occurrence of an Event of Default, until such time as the Event of Default has been cured, any portion of the Semi-Annual Payment due and owing but unpaid by the Districts to TC-RP hereunder shall bear interest until paid in full at the per annum interest rate of (i) for the thirty (30) day period beginning on the date of the Event of Default at a per annum interest rate equal to 5.673% plus 200 basis points and (ii) thereafter at the maximum voted interest rate of the District. Section 5.03. No Events of Default for Non-Payment of Deferred Reimbursements or Interest on Deferred Reimbursements. The Districts’ failure to pay to TC-RP any Deferred Reimbursements or interest on Deferred Reimbursements on any particular date or in any particular amount shall not constitute an Event of Default under this Pledge Agreement unless the payment on a Deferred Reimbursement (but not the interest thereon) is due in connection with a refinancing or prepayment pursuant to Section 2.02 (e). The intent of the Parties is that events of default related to payment of Deferred Reimbursements and interest on Deferred Reimbursements shall be as set forth in the Funding Agreement as provided for in ARTICLE III and in the Development Agreement. ARTICLE VI MISCELLANEOUS Section 6.01. Pledge. The creation, perfection, enforcement, and priority of the pledge of revenues to secure or pay the Annual Debt Service Obligation and Semi-Annual Payments shall be governed by Section 11-57-208 of the Supplemental Act and this Pledge Agreement. The Tank Project Property Tax Revenues, the Other Pledged Revenues, and the Senior Payment Fund shall be subject to the lien of such pledge as of the Acceptance Date without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the Districts irrespective of whether such persons have notice of such liens. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Section 6.02. No Recourse Against Officers and Agents. Pursuant to Section 11-57- 209 of the Supplemental Act, if a member of the Boards of Directors of the Districts, or any officer or agent of the Districts acts in good faith, no civil recourse shall be available against such member, officer, or agent for, with respect to the obligations of the Districts hereunder with respect to the Districts’ pledge to pay the Annual Debt Service Obligation and the Semi-Annual Payments. Such recourse shall not be available either directly or indirectly through the Districts, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of this Pledge Agreement and as a part of the consideration hereof, the Districts each specifically waive any such recourse. Section 6.03. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental Act, this Pledge Agreement contains a recital that it is entered into pursuant to certain provisions of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity of this Pledge Agreement after its delivery for value. Section 6.04. Limitation of Actions. Pursuant to Section 11-57-212 of the Supplemental Act, no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization, execution, or delivery of this Pledge Agreement shall be commenced more than thirty (30) days after the authorization of this Pledge Agreement. Section 6.05. Notices. All approvals, consents, notices, objections, and other communications (a “Notice” and, collectively, “Notices”) under this Pledge Agreement shall be in writing and shall be deemed properly given and received when personally delivered, or sent by overnight courier, or by email (pdf), or by registered or certified United States mail, postage prepaid, return receipt requested, addressed to the following parties at their respective addresses as set forth below. Notices shall be deemed effective: (i) if personally delivered, when actually given and received; or (ii) if by overnight courier service, on the next business day following deposit with such courier service; or (iii) if by email (pdf), on the same day if sent before 5:00 P.M. Mountain Time, or on the next business day if sent after 5:00 P.M. Mountain Time; or (iv) if by registered or certified United States mail, postage prepaid, return receipt requested, three (3) business days after mailed. The Parties acknowledge that, as of the Execution Date, the United States Postal Service does not deliver to physical addresses within Avon, Colorado and, as such, Notices delivered pursuant to clause (iv) must be addressed to a post office box. All Notices shall be addressed as follows (or to such other address as may be subsequently specified by Notice given in accordance herewith): To TC-RP: Traer Creek-RP LLC P.O. Box 9429 0101 Fawcett Road, Suite 210 Avon, Colorado 81620 Attention: Marcus Lindholm, Manager Telephone: (970) 949-6776 Email: marcuslindholm@traercreek.com With a required copy to: ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Otten, Johnson, Robinson, Neff & Ragonetti, P.C. 950 17th Street, Suite 1600 Denver, Colorado 80202 Attention: Munsey L. Ayers Telephone: (303) 825-8400 Email: munsey@ottenjohnson.com To TCMD: Traer Creek Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, Colorado 80228 Attention: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attention: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To VMD: The Village Metropolitan District 141 Union Boulevard, Suite 150 Lakewood, Colorado 80228 Attention: Lisa Jacoby Telephone: (303) 987-0835 Email: ljacoby@sdmsi.com With a required copy to: McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80202-1214 Attention: Mary Jo Dougherty Telephone: (303) 592-4380 Email: mjdougherty@mcgeadysisneros.com To BNP: BNP Paribas New York Branch 787 Seventh Avenue, 9th Floor New York, New York 10019 ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 Attention: Barbara Eppolito Telephone: (212) 841-3607 Email: Barbara.eppolito@americas.bnpparibas.com With a required copy to: BNP Paribas San Francisco Branch One Front Street 23rd Floor San Francisco, California 94111 Attention: Corporate Lending Telephone: (415) 772-1300 Fax: (415) 296-8954 And to: Faegre Baker Daniels LLP 2200 Wells Fargo Center 90 South 7th Street Minneapolis, Minnesota 55402 Attention: Stefanie Galey Telephone: (612) 766-7661 Email: Stefanie.galey@faegrebd.com Section 6.06. Escrow; Escrow Instructions; Effective Date. As quickly as possible after the Execution Date, each Party will deposit a signed original of this Pledge Agreement into the Escrow subject to the instructions set forth in the [Amended Escrow Agreement] regarding Settlement Implementation Documents. This Pledge Agreement shall become effective and legally binding on the Parties on the Implementation Date upon being released from the Escrow. Section 6.07. Termination Upon Failure of Conditions Precedent. If the Implementation Date does not occur prior to the Outside Date (as defined in the [Amended Escrow Agreement]), this Pledge Agreement shall be deemed void ab initio and of no further force or effect. Section 6.08. Miscellaneous. (a) Neither District may assign its obligations under this Pledge Agreement without the prior written consent of TC-RP, and any purported assignment by either District that is made without such prior written consent of TC-RP shall be void ab initio. (b) TC-RP shall have the right, without consent of the Districts (or of BNP), to assign (but not transfer) to a lender, including any successor thereto, TC-RP’s right to receive payment of all or a portion the Annual Debt Service Obligation as collateral in connection with obtaining financing. In such event, the Districts will remit payment of all or a portion of each Semi-Annual Payment to such lender, including any successor thereto, in accordance with instructions therefor, as set forth in a Notice delivered by TC- RP to the Districts. Additionally, TC-RP shall have the right to assign any of its rights or ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 delegate any of its duties hereunder to any person or entity, including any successor thereto; provided, however, with respect to any proposed assignment of all or any portion of TC-RP’s right to receive reimbursement from the Districts as provided herein, TC-RP (i) acknowledges that such assignment shall be subject to the Colorado Municipal Bond Supervision Act, Section 11-59-101 et seq.(the “Colorado Municipal Bond Supervision Act”), including without limitation Interpretive Order No. 06-IN-001, and including without limitation delivery to TCMD of a certificate of “accredited investor” under federal securities law, which certificate shall be executed by the assignee, and (ii) hereby agrees to cooperate with the Districts to amend this Pledge Agreement or take such other actions as may be necessary, including payment of any applicable fees, to comply with the provisions of the Colorado Municipal Bond Supervision Act necessary to effect such assignment. (c) Except as otherwise set forth herein with respect to the Development Agreement and the [Amended Escrow Agreement]: (i) this Pledge Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement among the Parties pertaining to the subject matter of this Pledge Agreement and supersedes the prior agreement of the Parties concerning repayment of TC-RP for the Tank Project Financing, (ii) this Pledge Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements, (iii) in the event of any conflict between provisions of this Pledge Agreement and any other agreement between the Districts and TC-RP, provisions of this Pledge Agreement shall control, and (iv) no Party has been induced to enter into this Pledge Agreement by, nor is any Party relying on, any representation, understanding, agreement, commitment, or warranty outside those expressly set forth in this Pledge Agreement. (d) If any term or provision of this Pledge Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge Agreement is stricken in accordance with the provisions hereof, then such stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. (e) The Districts find that the Minimum Amount Due evidenced by this Pledge Agreement is in excess of $500,000 and is assignable or transferable only in compliance with the Colorado Municipal Bond Supervision Act, and, as a result, is exempt from the registration requirements of the Colorado Municipal Bond Supervision Act. TC-RP agrees that the prior written consent of the Districts, such consent not to be unreasonably withheld, conditioned or delayed, shall be required of any transfer of less than one hundred percent (100%) of the Minimum Amount Due, it being the intent of the Parties that any such partial assignment or transfer shall not cause this Pledge Agreement to become subject to the registration requirements of the Colorado Municipal Bond Supervision Act. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 (f) This Pledge Agreement shall be governed by and construed under the applicable laws of the State. (g) This Pledge Agreement may be amended or supplemented by the Parties, but any such amendment or supplement must be in writing and must be executed by all Parties and consented to by BNP, such consent not to be unreasonably withheld, conditioned or delayed, so long as BNP is the provider of liquidity or credit enhancement on the TCMD Refunding Bonds or any amounts are due and owing to BNP in connection with the TCMD Refunding Bonds or in connection with the Series 2002 and 2004 TCMD Bonds. (h) The parties to this Agreement, as well as BNP as a consent party, agree to cooperate in a reasonable manner to assist the Districts or TC-RP in amending, supplementing or restructuring this Agreement so long as such amendment, supplement or restructuring does not increase the Minimum Amount Due, change the terms under which the Water Tank Financing can be prepaid or refinanced or create an undue burden on the Districts, TC-RP or BNP. (i) It is intended that there be no third party beneficiaries of this Pledge Agreement; except that BNP (at any time it is the provider of liquidity or credit enhancement for the Series 2002 and 2004 TCMD Bonds or the TCMD Refunding Bonds or any amounts are due and owing to BNP in connection with the TCMD Refunding Bonds or in connection with the Series 2002 and 2004 TCMD Bonds) is a third party beneficiary of this Pledge Agreement but solely to the extent that BNP is expressly provided consent rights herein. Nothing contained herein, expressed or implied, is intended to give to any person other than TC-RP any claim, remedy, or right under or pursuant hereto, and any agreement, condition, covenant, or term contained herein required to be observed or performed by or on behalf of any Party shall be for the sole and exclusive benefit of the other Parties. (j) Venue for any and all claims brought by any Party to enforce any provision of this Pledge Agreement shall be the District Court in and for the County of Eagle and State of Colorado. (k) If the date for making any payment hereunder or performing any action hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed. (l) Each Party has participated fully in the review and revision of this Pledge Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in interpreting this Pledge Agreement. The language in this Pledge Agreement shall be interpreted as to its fair meaning and not strictly for or against any Party. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 (m) This Pledge Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. [Signature Pages Follow] ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 IN WITNESS WHEREOF, the Districts and TC-RP have executed this Pledge Agreement as of the Execution Date (to become effective on the Implementation Date as provided herein). TRAER CREEK METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: ____________________________________ President ATTEST: ______________________________ Secretary THE VILLAGE METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado By: ____________________________________ President ATTEST: ______________________________ Secretary TRAER CREEK -RP LLC, a Colorado limited liability company By: Traer Creek LLC, a Colorado limited liability company, its Manager By: ____________________________________ Name: __________________________________ Title: ___________________________________ ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 EXHIBIT A ACKNOWLEDGEMENT AND CONSENT The undersigned representative of BNP Paribas (“BNP”), in its capacity as the issuer of irrevocable direct pay letters of credit securing the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2002 and the Traer Creek Metropolitan District Variable Rate Revenue Bonds, Series 2004, hereby acknowledges and consents to the foregoing Tank Project Financing Reimbursement and Pledge Agreement (the “Pledge Agreement”) and represents that on and after the occurrence of the Acceptance Date (as defined in the Pledge Agreement), BNP will not have a lien on the Tank Project Property Tax Revenues (as defined in the Pledge Agreement) or the Senior Payment Fund (as defined in the Pledge Agreement) and will not have a lien on the Other Pledged Revenues (as defined in the Pledge Agreement) which is on a parity with or prior to the pledge pursuant to the Pledge Agreement. Date: _____________________ BNP PARIBAS By: ____________________________________ Name: __________________________________ Title: ___________________________________ ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 EXHIBIT B DEFINITIONS 1. 2012 Tank Agreement means that certain Traer Creek Water Storage Tank Agreement and Second Amended Water Service Agreement effective as of December 26, 2012, entered into by and among the Authority, the Town, TCMD, Master Developer, TC RP and certain Limited Parties (as such parties are defined therein), which 2012 Tank Agreement is amended and restated pursuant to the Tank Agreement. 2. 2014 Bond Reissue means bonds issued by TCMD to refund TCMD’s Variable Rate Revenue Bonds, Series 2002, and its Variable Rate Revenue Bonds, Series 2004, in implementation of the Term Sheet, including but not limited to any refunding bonds issued by a District to repay or defease bonds as to which BNP is a credit enhancer, letter of credit provider or bondholder. 3. Acceptance Date means the date on which the Authority provides written Construction Acceptance (as defined in the Tank Agreement) in accordance with the terms and conditions of the Tank Agreement. 4. Additional Developer Advances has the meaning stated in Exhibit F, paragraph 6, of the Development Agreement. 5. [Amended Escrow Agreement] means that certain Amended and Restated Receipt and Escrow Agreement Pertaining to the Village (at Avon) Settlement Implementation having an effective date as of ___________, 2014. 6. Annual Debt Service Obligation means $500,000 per year commencing on the Acceptance Date and terminating when $15,000,000 (being the sum of sixty (60) Semi-Annual Payments) has been paid to TC-RP, or the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof; which, if made as required by this Pledge Agreement, shall be deemed repayment in full of the Minimum Amount Due (but shall not be construed as extinguishing the Districts’ repayment obligations, if any, with respect to Deferred Reimbursement amounts, together with interest accrued thereon, pursuant to the Funding Agreement). 7. Assigned Fee Revenues means revenues assigned to TCMD as defined in and pursuant to the Fee Assignments. 8. Authority means the Upper Eagle Regional Water Authority, a quasi municipal corporation and political subdivision of the State of Colorado, together with its successors or assigns. 9. BNP means BNP Paribas, an international bank, together with its successors and assigns. 10. BNP Pledge has the meaning stated in Recital H of this Pledge Agreement. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 11. Commercial PIC means The Village (at Avon) Commercial Public Improvement Company, a Colorado non-profit corporation. 12. Deferred Reimbursement has the meaning stated in the Development Agreement and generally means, as more particularly set forth in Section 5.5(b)(iii) of the Development Agreement, the annual amount, if any, by which the amount of the annual debt service payment (principal and interest) payable to TC-RP each calendar year pursuant to the terms of this Pledge Agreement exceeds the amount of the Annual Debt Service Obligation, such annual amounts to be determined on the Acceptance Date concurrently with the setting of the Interest Rate. In accordance with the Development Agreement, each Deferred Reimbursement shall be classified under Additional Developer Advances (as defined in the Development Agreement) or as a Non- Credit PIF Revenue Reimbursement (as defined in the Development Agreement), and shall accrue interest and be paid by the Districts in accordance with the terms and conditions of the Funding Agreement (which terms and conditions shall not conflict with applicable terms and conditions of this Pledge Agreement and Section 5.5 of the Development Agreement). 13. Development Agreement means that certain Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon) having an “Execution Date” (as defined therein) of October 22, 2013, by and among the Town, TCMD, VMD, EMD Limited Liability Company and Traer Creek LLC. 14. District(s) has the meaning, individually or collectively as the context dictates, stated in the initial paragraph of this Pledge Agreement. 15. Document Disposition Instructions for the purposes of this Pledge Agreement means the instructions set forth in Exhibit C-1 of the [Amended Escrow Agreement], which are applicable to the Settlement Implementation Documents. 16. Escrow means the state of having been placed into escrow in accordance with the [Amended Escrow Agreement]. 17. Escrow Agent means Stewart Title Company, a Texas corporation, acting in its capacity as escrow agent pursuant to the [Amended Escrow Agreement]. 18. Event of Default has the meaning stated in Section 5.01. 19. Excess Tank Project Property Tax Revenues means Tank Project Property Tax Revenues required to be transferred by the Water Tank Bonds Custodian to the trustee (or, if applicable, the custodian) for the TCMD Refunding Bonds or required to be directly deposited with such custodian or trustee for the TCMD Refunding Bonds in accordance with the Water Tank Bonds Custodial Agreement and this Pledge Agreement. 20. Execution Date has the meaning stated in the initial paragraph of this Pledge Agreement. 21. Fee Assignments means, collectively, the Amended and Restated Fee Assignment and Servicing Agreement dated as of ___________, 2014, by and between the Commercial PIC and TCMD and the Amended and Restated Fee Assignment and Servicing Agreement dated as ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 of ____________, 2014, by and between the Mixed-Use PIC and TCMD, as the same have been or may be amended from time to time. 22. Funding Agreement means an agreement to be executed by and among TC-RP, TCMD and VMD with respect to TC-RP’s funding of and the Districts’ repayment of that portion of the Tank Project Financing that constitutes Deferred Reimbursement amounts, together with interest accrued thereon, as generally provided in ARTICLE III. 23. Indenture means that certain Indenture of Trust by and between TCMD and U.S. Bank National Association pursuant to which the TCMD Refunding Bonds have been issued. 24. Implementation Date has, for the purposes of this Pledge Agreement, the meaning stated in Paragraph 30(a) of Exhibit H of the [Amended Escrow Agreement] and generally means the date on which all of the conditions listed in Section 2.08 of this Pledge Agreement have been satisfied and the SID Escrow Closing occurs with respect to the Settlement. 25. Implementation Notice for the purposes of this Pledge Agreement is the notice to be delivered to the Escrow Agent in accordance with Section 6(a) of the [Amended Escrow Agreement] applicable to the Settlement Implementation Documents. 26. Interest Rate means an interest rate determined on the Acceptance Date and computed against the principal amount of $7,200,000, which is the greater of (i) 5.673% or (ii) the rate applicable to Additional Developer Advances (as defined in the Development Agreement) pursuant to the terms of the Development Agreement (in Paragraph 6 of Exhibit F). The Interest Rate shall be fixed as of the Acceptance Date and shall not subsequently be increased or decreased. The Interest Rate is not the interest rate to be used in determining the interest due on to Deferred Reimbursement Amounts or under any Funding Agreement. 27. Limited Parties means those parties designated as Limited Parties in the Tank Agreement. 28. Minimum Amount Due means the principal amount of $7,200,000 bearing simple interest at the rate of 5.673% per annum, which amount is payable in full on the Acceptance Date or any date thereafter in accordance with the provisions of Section 2.02(e) hereof, or in sixty (60) fully paid Semi-Annual Payments of $250,000. 29. Mixed-Use PIC means The Village (at Avon) Mixed Use Public Improvement Company, a Colorado non-profit corporation. 30. Non-Credit PIF Revenue Reimbursement has the meaning stated in the Development Agreement and generally means the amount of any Deferred Reimbursement that, as generally provided in Sections 5.5(b)(iv)(B) and 6.9(c) of the Development Agreement is not payable from Credit PIF Revenues (as defined in the Development Agreement) and does not count against the Credit PIF Cap (as defined in the Development Agreement) and includes (i) any amount of any Deferred Reimbursement that TC-RP elects to remove from the classification of Additional Developer Advances, and (ii) accrued interest on all Deferred Reimbursements. 31. Notice(s) has the meaning stated in Section 6.05. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 32. Other Pledged Revenues means the following revenues that are pledged, if needed to pay the Annual Debt Service Obligation, in addition to the pledge of Tank Project Property Tax Revenues, net of collection costs: all Assigned Fee Revenues, Pledged Tap Fees and Surcharges, Specific Ownership Taxes, Pledged Town Taxes (if any), Excess Tank Project Property Tax Revenues, and any other revenues received by TCMD and VMD (including any expansion of the revenues, fees and taxes referred to in this definition, or any new revenues, fees or taxes), including interest income thereon, all in accordance with GAAP, but excluding moneys advanced to the District for the purpose of funding administrative, operations and capital costs and the proceeds of Supplemental Bonds. 33. Party(ies) means, individually or collectively, TCMD, VMD and TC-RP. 34. Payment Date means May 15 and November 15 of each year, commencing with the first May 15 or November 15 occurring after the Acceptance Date and terminating when $15,000,000 (being the sum of sixty (60) Semi-Annual Payments) has been paid to TC-RP, or the Tank Project Financing has been refinanced or prepaid in accordance with Section 2.02(e) hereof; provided, however, that any Semi-Annual Payment that is not or has not been made in full on a Payment Date shall continue to maintain its senior position and, therefore, shall continue to be payable on the soonest day thereafter from all revenues pledged herein upon receipt by the Districts thereof. 35. Pledge Agreement has the meaning stated in the initial paragraph of this Tank Project Financing Reimbursement and Pledge Agreement. 36. Pledged Tap Fees and Surcharges means all water tap fees or sewage tap fees received by either TCMD or VMD from the Town or any water or sanitation district or any surcharge or development fees imposed by, directly paid to, and/or owed to TCMD or VMD by users for the right to connection to the water, sewer or storm drainage facilities within the boundaries of the Districts. 37. Pledged Town Taxes means taxes of the Town payable to the Commercial PIC and the Mixed-Use PIC pursuant to Section 6.18 of the Development Agreement (net of any amounts permitted to be retained by the Town in accordance with the Development Agreement) and assigned to TCMD in accordance with the Fee Assignments. 38. Recital(s) means, individually or collectively as the context dictates, the information set forth in the provisions of the “Recitals” section of this Pledge Agreement. 39. Semi-Annual Payment means one-half of the Annual Debt Service Obligation, being $250,000; provided, however, that any Semi-Annual Payment that is not made in full on a Payment Date shall maintain its senior lien on the revenues pledged herein and, therefore, shall continue to be payable on the soonest day thereafter from all revenues pledged herein upon receipt by the Districts thereof. 40. Senior Payment Fund means the Senior Payment Fund created pursuant to Section 2.02 (c) of this Pledge Agreement and held by the Water Tank Custodian in accordance with the Water Tank Custodial Agreement on behalf of TCMD for the purpose of providing for the payment of the Annual Debt Service Obligation. ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 41. Senior Required Mill Levy means an ad valorem mill levy (a mill being equal to 1/10 of 1 cent) imposed upon all taxable property of the Districts each year in an amount necessary as determined by the Districts, to generate Tank Project Property Tax Revenues sufficient, together with amounts on deposit in the Senior Payment Fund on the date the Senior Required Mill Levy is certified by the Districts, to pay the Annual Debt Service Obligation as the same becomes due and payable, but not in excess of 50 Mills; provided however, that TCMD shall not be obligated to levy taxes pursuant to this Pledge Agreement until the assessed valuation of taxable property in TCMD is at least $1,000,000. So long as the Senior Required Mill Levy is less than the 50 mills, the total mill levy set by one or both of the Districts shall include additional mills required by the BNP Pledge and may include additional mills, as determined by the Districts, for other lawful purposes of the Districts. 42. Series 2002 and 2004 TCMD Bonds means, collectively, TCMD’s previously issued Variable Rate Revenue Bonds, Series 2002, and TCMD’s previously issued Variable Rate Revenue Bonds, Series 2004. 43. Settlement Implementation Documents has the meaning stated in Paragraph 52 of Exhibit H to the [Amended Escrow Agreement]. 44. SID Escrow Closing has the meaning stated in Paragraph 56 of Exhibit H to the [Amended Escrow Agreement]. 45. Specific Ownership Taxes means revenues resulting from the specific ownership tax on certain motor vehicles and other personal property imposed by the State pursuant to Article 3, Title 42 C.R.S., and payable to TCMD or VMD as a result of taxes levied by TCMD or by VMD, respectively, including but not limited to such taxes imposed by TCMD and VMD pursuant to the District Bonds Pledge Agreement and this Pledge Agreement. 46. State means the State of Colorado. 47. Storage Tank has the meaning stated in the Tank Agreement. 48. Supplemental Act means the Supplemental Public Securities Act, being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended. 49. Supplemental Bonds has the meaning stated in the Development Agreement. 50. Tank Agreement means, as amended from time to time, that certain Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Storage Tank Agreement dated as of ___________, 2014, [Please provide date of Tank Agreement] entered into by and among the Authority, the Town, TCMD, Master Developer, TC RP and certain Limited Parties (as such parties are defined therein), such instrument amending and restating the 2012 Tank Agreement. 51. Tank Project has the meaning stated in the Tank Agreement. 52. Tank Project Financing has the meaning stated in the Development Agreement and generally means, collectively, TC-RP’s obligation to finance the Tank Project in the amount ATTACHMENT C KR DRAFT 3/5/14 4821-4720-5912.4 required to design, construct and complete the Tank Project on behalf of the Districts and the Districts’ obligation to repay TC-RP in the principal amount of $7,200,000 plus interest at the Interest Rate and any additional interest that accrues on the Deferred Reimbursements, all in accordance with and subject to the terms and limitations of this Pledge Agreement. 53. Tank Project Property Tax Revenues means all moneys derived from imposition of the Senior Required Mill Levy by the Districts and payable to TC-RP or its designees in accordance with this Pledge Agreement. 54. Tank Site Documents has the meaning stated in Paragraph 61 of Exhibit H to the [Amended Escrow Agreement]. 55. TC-RP has the meaning stated in the initial paragraph of this Pledge Agreement as being Traer Creek-RP LLC, a Colorado limited liability company, together with its successors and permitted assigns. 56. TCMD has the meaning stated in the initial paragraph of this Pledge Agreement as being Traer Creek Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, together with its successors and permitted assigns. 57. TCMD Refunding Bonds means the bonds issued in connection with the 2014 Bond Reissue as part of the restructuring of the Series 2002 and 2004 TCMD Bonds in accordance with the Development Agreement in a manner sufficient to, among other things, facilitate the performance by TCMD and VMD of their respective obligations pursuant to the Development Agreement and this Pledge Agreement. 58. Term Sheet means that certain Settlement Term Sheet dated October 7, 2011, which sets forth the agreement of the parties thereto concerning resolution of various disputes at issue in certain litigation to which they are parties (consolidated civil action Case No. 2008CV385, Eagle County District Court). 59. Town means the Town of Avon, a home rule municipal corporation of the State. 60. VMD has the meaning stated in the initial paragraph of this Pledge Agreement as being The Village Metropolitan District, a quasi-municipal corporation and political subdivision of the State of Colorado, together with its successors and permitted assigns. ATTACHMENT C 35 1044033.12 (b)Potential Combination of Park and School Sites. EMD or the then-current Landowner shall undertake the efforts contemplated pursuant to Section 3.7(a)(iv)(B)regarding a potential consolidated school/park Site within Planning Area I. (c)Conveyance of OS Tracts. Pursuant to Section 3.7(c), EMD or the then-current Landowner shall convey to the Town the parcels designated in the PUD Master Plan as OS-5 and OS-6. (d)Conveyance of Park Site in Planning Area I. Pursuant to Section 3.7(d), EMD or the then-current Landowner shall convey to the Town such sites within Planning Area I as may be determined necessary or desirable in satisfying such obligation. 5.5 Obligations of TC-RP. TC-RP shall perform the following obligations: (a)Add-On RSF. Concurrently with the Effective Date, TC-RP, in its capacity as the “declarant”with respect to the PIF Covenants has caused to be recorded amendments to the PIF Covenants to implement the Add-On RSF. During the Term and provided the Town is performing its obligation to maintain the Tax Credit in effect, TC-RP shall take all legally available action to cause the PICs to impose, collect and remit the Add-On PIF as required pursuant to this Development Agreement, and TC-RP shall not take any action to modify, reduce, terminate, suspend or otherwise prevent the Add-On RSF from attaching to applicable retail sales transactions occurring within the Project. (b)Tank Project Financing. TC-RP shall provide financing for the construction and completion of the Tank Project (together with any refinancing thereof, “Tank Project Financing”)according to the following terms: (i)Funding of Tank Project Financing. TC-RP shall provide sufficient funds for completion of the Tank Project as and when required pursuant to and otherwise in accordance with the terms and conditions of the Tank Agreement. (ii)Reimbursement From Annual Debt Service Obligation.In accordance with the terms and conditions of the Pledge Agreement, the Districts shall utilize the Annual Debt Service Obligation (in the amount of $500,000 per year for a period of thirty (30) years commencing on,or promptly thereafter as may otherwise be set forth in the Pledge Agreement,the date the Authority permanently rescinds the moratorium on issuance of water taps pursuant to the terms and conditions of the Tank Agreement, such date to be coincident with the date on which the Authority grants “construction acceptance” of that portion of the Tank Project that is required to be Dedicated to and accepted by the Authority) to reimburse TC-RP (and, for purposes of such reimbursement, its successors and/or assigns)for: (A)the principal amount of $7,200,000 (SEVEN MILLION TWO HUNDRED THOUSAND DOLLARS), which amount shall be a fixed amount that is not subject to increase or decrease, and shall constitute Capital Project Costs that are Net Proceeds and Cap Amounts; and (B)interest at the rate of5.673% per annum, which interest payments shall constitute Bond Requirements and Non-Cap Amounts. Such obligations shall be paid in accordance with the priority set forth in Section 6.9(b)(i). TC-RP acknowledges and assumes the risk that ATTACHMENT D 36 1044033.12 its obligation to fund the Tank Project pursuant to Section 5.5(b)(i)may require that TC-RP incur Capital Project Costs in a principal amount that exceeds$7,200,000. TCMD shall have no obligation to reimburse TC-RP for any Capital Project Costs incurred by TC-RP with respect to the Tank Project that exceed $7,200,000, and Credit PIF Revenues shall not be utilized to reimburse TC-RP for any such costs. TCMD and the Town acknowledge that the fixed principal amount of $7,200,000 for the Tank Project is an amount that has been verified as a reasonable and appropriate Capital Project Cost for construction of the Tank Project.Subject to Section 5.5(b)(iv), the foregoing principal amount and interest rate will accomplish full amortization of the obligation utilizing the Annual Debt Service Obligation over the thirty (30) year period of the Annual Debt Service Obligation. The Pledge Agreement shall provide “call protection” such that the Tank Project Financing obligation may not be refinanced or otherwise pre-paid utilizing Annual Debt Service Obligation (as described above)funds without TC-RP’s written consent, to be granted or withheld in TC-RP’s sole and unilateral discretion; provided, however, that the foregoing “call protection” shall not apply if the refinancing/pre-payment will also fully refinance/prepay any sums of principal (but not accrued interest) then owed and unpaid to TC-RP that are categorized as Deferred Reimbursements pursuant to Section 5.5(b)(iv). If the Tank Project Financing is refinanced or otherwise prepaid as provided above, any interest on a Deferred Reimbursement that has accrued and remains unpaid shall remain payable as a Non-Credit PIF Revenue Reimbursement as provided in Section 5.5(b)(iv)(B)2. (iii)Deferred Reimbursement. TCMD has agreed to pay TC-RP interest on $7,200,00 at the greater of 5.673%or the rate applicable to Additional Developer Advances as of the date on which the Authority, pursuant to the terms and conditions of the Tank Agreement,(I)grants construction acceptance for the portion of the Tank Project required to be dedicated to and accepted by the Authority, and (II)permanently rescinds the moratorium on issuance of water taps. If the applicable Developer Advance interest rate exceeds 5.673%, then in each calendar year during which payments are due and owing from the Annual Debt Service Obligation, a difference will exist (such difference being a “Deferred Reimbursement”) between the amount of the annual debt service payment (principal and interest) paid each calendar year from the Annual Debt Service Obligation (at the rateof 5.673% per annum as fixed pursuant to Section 5.5(b)(ii))and the amount of the annual debt service payment (principal and interest) that otherwise would have been paid in such calendar year had the interest rate been the rate applicable to Additional Developer Advances as provided above. For purposes of determining the amount of such difference in annual debt service payments, the following calculations shall be made as of the date on which both of the Authority actions described in the foregoing clauses (I) and (II) have occurred: (A)the interest rate then applicable to Additional Developer Advances in accordance with Paragraph 6 of Exhibit F (which interest rate shall be fixed as of the pertinent date and shall not subsequently be increased or decreased during the term of the Annual Debt Service Obligation); (B)the amount of the annual debt service payment (principal and interest) that would,using the interest rate resulting from use of the rate ATTACHMENT D 37 1044033.12 described in the foregoing clause (A), be required to fully amortize the $7,200,000 Tank Project cost over a 30-year period;and (C)the amount by which the annual debt service payment (principal and interest) resulting from the foregoing clause (B)exceeds the $500,000 of annual debt service payment resulting from the Annual Debt Service Obligation. If the calculation set forth in the foregoing clause (C)results in a positive number, such amount shall be “capitalized” as a principal Deferred Reimbursement amount and paid, together with accrued interest, in accordance with Section 5.5(b)(iv). (iv)Repayment of Deferred Reimbursement. Payment of each Deferred Reimbursement, and payment of accrued interest on each such Deferred Reimbursement,shall be deferred until such time as TCMD (or its successors and/or assigns)has available funds (from a source other than the Annual Debt Service Obligation) to make such payments in accordance with the prioritization set forth in Section6.9 and otherwise subject to the following terms and conditions: (A)Additional Developer Advance. Subject to Section 5.5(b)(iv)(B), each such Deferred Reimbursement amount shall initially constitute an Additional Developer Advance, shall constitute Net Proceeds that are a Cap Amount that counts against the Credit PIF Cap pursuant to Section 6.2(b)(iv), and shall be paid in accordance with the priority set forth in Section 6.9(b)(v)(B)1. Interest shall accrue and be paid with respect to such Additional Developer Advances in accordance with Section 5.5(b)(iv)(B)2. (B)Non-Credit PIF Revenue Reimbursement. Amounts (whether principal of or interest on the Deferred Reimbursement amounts) that are payable as a Non-Credit PIF Revenue Reimbursement shall not be payable from Credit PIF Revenues,shall not count against the Credit PIF Cap, and shall be paid in accordance with the priority set forth in Section 6.9(c) Additionally: 1.Conversion to Non-Credit PIF Revenue Reimbursement. TC-RP shall have the right in its sole discretion to convert any Deferred Reimbursement amount that is initially characterized as an Additional Developer Advance pursuant to Section 5.5(b)(iv)(A)to a Non-Credit PIF Revenue Reimbursement. If anyamount that is initially payable as an Additional Developer Advance (pursuant to Section 5.5(b)(iv)(A)) is subsequently converted to a Non-Credit PIF Revenue Reimbursement (pursuant to this Section 5.5(b)(iv)(B)), an equal amount shall be added back to the unused portion of the Credit PIF Cap to be utilized for other Capital Project Costs. Once converted to a Non-Credit PIF Revenue Reimbursement, the obligation shall remain a Non-Credit PIF Revenue Reimbursement. ATTACHMENT D 38 1044033.12 2.Interest on Deferred Reimbursement Amounts. Deferred Reimbursements (whether payable as an Additional Developer Advance or payable as a Non-Credit PIF Revenue Reimbursement) shall accrue interest at such rate(s)and shall be payable on such terms as TC-RP and TCMD agree (such interest amounts not being payable from Credit PIF Revenues). ARTICLE6 FINANCING PLAN 6.1 General. The Credit PIF is imposed to generate Credit PIF Revenues for TCMD and/or VMD to finance and construct Capital Projects, to repay the District Debts and to be utilized for other Permitted Uses. The Tax Credit is granted in consideration of the above-stated uses of the Credit PIF. (a)Credit PIF and Town Tax Credit. The PIF Covenants impose the Credit PIF on Taxable Transactions, and the Town has enacted the corresponding Tax Credit. The PICs have assignedthe Credit PIF Revenues to TCMD and/or VMD, and will further assign and/or re-assign to the Districts portions of the Credit PIF Revenues, to enable each of the Districts to utilize their respective portions of the Credit PIF Revenues for the purpose of performing their respective obligations pursuant to the Financing Plan and this Development Agreement. (b)Expiration of Term; Termination of Town Tax Credit. Except as otherwise provided in Section 6.1(d), the Districts’right to receive Credit PIF Revenues, the Town’s right to receive Municipal Payments, and the Town’s obligation to maintain the Tax Credit in effect each shall terminate concurrently with expiration of the Term. Upon expiration of the Term and termination of the Town’s Tax Credit, the Town shall be entitled to impose, receive and retain all Town taxes applicable to Taxable Transactions. (c)Termination of Right to Municipal Payments. The Town’s right to receive the Municipal Payments shall terminate concurrently with expiration of the Term and the termination of the Town’s obligation to maintain the Tax Credit as set forth in Section 6.1(b). If the Declarant (as defined in the PIF Covenants) elects to continue the imposition of the Add-On RSF, in whole or in part, after discontinuation of the PICs’obligation to remit the Municipal Payments to the Town, then the Add-On RSF Revenues may be used for any purpose permitted under the PIF Covenants. Notwithstanding expiration of the Term, the Town shall be entitled to receive Municipal Payments amounts resulting from application of the Add-On RSF to Taxable Transactions that occurred prior to the date upon which expiration of the Term occurs, such amounts to be collected and remitted in accordance with the terms and conditions of the Add-On RSF Collection Services Agreement. Notwithstanding that the Term shall expire upon full payment of the District Debts, the terms and conditions of this Section 6.1(c)shall survive the expiration of the Term. (d)Continuation of Town Tax Credit. If, after the Town’s obligation to maintain the Tax Credit in effect has been satisfied the Town delivers written notice to the PICs that the Town is precluded from terminating the Tax Credit, and the Town has in good faith pursued and failed to accomplish legally available alternatives for terminating the Tax Credit, ATTACHMENT D TOWN OF AVON, COLORADO AVON REGULAR MEETING MINUTES FOR TUESDAY, FEBRUARY 25, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 02-25-2014 Minutes Page 1 1. CALL TO ORDER & ROLL CALL Mayor Carroll called the meeting to order at 5:00 PM. A roll call was taken and Council members present were Dave Dantas, Jennie Fancher, Todd Goulding, Buz Reynolds, and Jake Wolf. Chris Evans was absent. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, and Assistant Town Manager/Town Clerk Patty McKenny, Senior Planner Matt Pielsticker, as well as members from the public. 2. APPROVAL OF AGENDA There were no changes to the agenda. 3. PUBLIC COMMENT Barbara Allen reiterated her request that Highway 6 be designated as a “safety zone that would be free from retail marijuana establishments. 4. ACTION ITEMS 4.1. PUBLIC HEARING on Resolution No. 14-02, Series of 2014, Resolution Approving the Minervini Minor PUD Amendment for Lots 15 & 16, Block 4, Wildridge, Town of Avon, Colorado – Request for Continuation to March 25, 2014 (Planning Manager, Matt Pielsticker) Mayor Carroll opened the public hearing, no comments were made, and the hearing was closed. Mayor Pro Tem Goulding moved to continue this item until the March 25, 2014 meeting per the request from the applicant. Councilor Wolf seconded the motion and it passed unanimously by those present (Councilor Evans absent). 4.2. Request from Public Access TV 5 for PEG Funds grant (JK Perry, Channel 5) JK Perry presented their annual request for the PEG access fund collected from Comcast subscribers to purchase a new master control system. He requested $10K towards the total $40K to purchase the system. Amy Philips, President of Channel 5 & Avon resident, spoke on behalf of the Board’s request. Councilor Wolf moved to approve the funding request from Channel 5 for capital projects; Councilor Dantas seconded the motion and it passed unanimously by those present (Councilor Evans absent). 5. WORK SESSION 5.1. Vail Leadership Institute (Ross Iverson) Ross Iverson, President of Vail Leadership Institute, presented an overview to the Entrepreneur’s BaseCamp programming. He then reviewed a request for a financial commitment for the BaseCamp program. It was agreed that Council members would visit the offices prior to the next council meeting and then review the funding request at the next meeting. 5.2. Introduction of Director of Economic Initiatives Susan Fairweather (Town Manager Virginia Egger) An introduction of Ms. Fairweather and her work plan was made at this time. 5.3. Review and Approval of Letter of Interest to the State of Colorado Creative Industries for Consideration of Avon as a Candidate for Arts District Program Funding and Support (Director of Economic Initiatives Susan Fairweather) TOWN OF AVON, COLORADO AVON REGULAR MEETING MINUTES FOR TUESDAY, FEBRUARY 25, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 02-25-2014 Minutes Page 2 A review of the Colorado Creative Arts District Program was presented, as a program established to support existing arts districts and the creation of new districts. It was noted that a “letter of interest” was drafted in order to submit with Avon’s application for becoming a Colorado-certified district. There was a review of the funding commitments, the letter, and the follow up requirements for a formal application. Councilor Wolf moved to approve submitting a “letter of interest to apply” to Colorado Creative Industries for consideration of being invited to apply for candidacy into the Colorado Creative District Certification Program. Mayor Pro Tem Goulding seconded the motion and it passed unanimously by those present (Councilor Evans absent). 6. ACTION ITEMS 6.1. Review and Action on the Location and Cost Estimate for a Stage in Nottingham Park (Town Engineer Justin Hildreth) Another review of determining the final stage location at Nottingham Park was presented. The following input was given on this topic:  Review of the sound testing that occurred during WinterWonderGrass music event  May need to hire architect to design if the location changes  Does the stage including a back or remain open to viewing the lake.  Would it be better not build the stage but have event producers bring their stage  Reviewed different stage sizes  May need to enhances the electrical in the playground area if that is the preferred location  Agreed to continue reviewing the following sites: 1) in general area of the playground site 2) Next to pumphouse3) in between pumphouse & Playground area (behind walking path towards lake) Councilor Fancher moved to appropriate up to $20 from the General Fund contingency to hire a consultant to provide design proposals for the stage; Councilor Reynolds seconded the motion and it passed unanimously by those present (Councilor Evans & Mayor Pro Tem Goulding absent). Mayor Pro Tem Goulding left during this discussion at 6 pm. 6.2. Public Hearing on Second Reading of Ordinance No. 14-03, Series of 2014, Ordinance Amending Chapters 1.08 and 1.09 of the Avon Municipal Code Concerning Municipal Court Fines and Chapter 2.08 Concerning Court Ordered Court Restitution (Town Attorney Eric Heil) It was noted there were no changes made to the ordinance from 1st reading. Councilor Fancher moved to approve Ordinance No. 14-03, Series of 2014, Ordinance Amending Chapters 1.08 and 1.09 of the Avon Municipal Code Concerning Municipal Court Fines and Chapter 2.08 Concerning Court Ordered Court Restitution. Councilor Reynolds seconded the motion and it passed unanimously by those present (Councilor Evans & Mayor Pro Tem Goulding absent). 6.3.Minutes from February 11, 2014 Meeting (Town Clerk Patty McKenny) Councilor Dantas moved to approve the minutes from February 11, 2014; Councilor Reynolds seconded the motion and it passed unanimously by those present (Councilor Evans & Mayor Pro Tem Goulding absent). 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. CML Policy Committee (Councilor Jake Wolf) TOWN OF AVON, COLORADO AVON REGULAR MEETING MINUTES FOR TUESDAY, FEBRUARY 25, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 02-25-2014 Minutes Page 3 8. COUNCIL COMMENTS Councilor Wolf commented on the success of the WinterWonderGrass music festival and thanked all staff who helped with its production. Councilor Fancher congratulated USA Olympic medal winners, especially Eagle – Vail resident Michaela Shiffron. 9. MAYOR REPORT AND FUTURE AGENDA ITEMS Mayor Carroll noted that the retreat take place from 3:30 PM until 6 PM on March 11 at the new transit facility with the regular meeting following at 6:30 PM that evening. 10. WRITTEN REPORTS 10.1. Financial Report (Budget Analyst Kelly Huitt) (include CAST information) 10.2. Council Reporting of Gift over $50.00 – WWG Guest Festival Pass (Town Clerk Patty McKenny) 10.3. Village at Avon Update (Town Attorney Eric Heil) There being no further business to come before the Council, the regular meeting adjourned at 7 pm. RESPECTFULLY SUBMITTED: _________________________________ Patty McKenny, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Todd Goulding ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, MARCH 11, 2014 RETREAT BEGINS AT 3:30 PM – AVON’S REGIONAL TRANSIT FACILITY REGULAR MEETING BEGINS AT 6:30 PM AVON TOWN HALL, ONE LAKE STREET FINAL Avon Meeting Agenda 03-11-2014 Page 2 REGULAR MEETING BEGINS AT 6:30 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. WORK SESSION 4.1. Presentation of Avon’s Brand Platform Document – Final Draft - by Origin Design + Communications - (Danielle Kristmanson) 5. ACTION ITEMS 5.1. Vail Leadership Institute Request for Funding Assistance of Annual Operating Expenses and grants for Events (Ross Iverson, President, Vail Leadership Institute) 5.2. Resolution 14-04, Series of 2014, Resolution Consenting to UERWA creating a Capital Replacement Program Base Rate (Linn Brooks, George Gregory, UERWA) 5.3. Intergovernmental Agreement Between the County of Eagle, State of Colorado and the Town of Avon Regarding the Avon Station ECO Transit Shelter (Town Engineer Justin Hildreth) 5.4. Resolution 14-05, Series of 2014, Approving the Amended and Restated Traer Creek Water Storage Tank Agreement and Second Amendment to Water Service Agreement (Town Attorney Eric Heil) 5.5. Minutes from February 28, 2014 Meeting (Town Clerk Patty McKenny) 6. PUBLIC COMMENT 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. UERWA Meeting Update (Mayor Pro Tem Goulding) 8. COUNCIL COMMENTS 9. MAYOR REPORT AND FUTURE AGENDA ITEMS 10. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC) 10.1. Meet with Town Attorney to discuss the potential sale or acquisition real property under C.R.S. §24-6-402(2) (a) and for the purpose of receiving legal advice from the Town Attorney under C.R.S. §24-6-402(2) (b) concerning the potential sale or acquisition of real property 11. ADJOURNMENT FUTURE AGENDA ITEMS: March 25th: Site Visit to Wildridge for Minor PUD amendment Minervini Property, Proclamations, Highline Proposal Phase III