TC Council Packet 10-14-2003STATE OF COLORADO )
COUNTY OF EAGLE ) SS
TOWN OF AVON 11
NOTICE IS HEREBY GIVEN THAT A WORK SESSION OF THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, WILL BE HELD OCTOBER 14, 2003, AT 2:45 PM TO BE
HELD AT THE AVON MUNICIPAL BUILDING LOCATED AT 400 BENCHMARK ROAD,
AVON, COLORADO FOR THE PURPOSE OF DISCUSSING AND CONSIDERING THE
FOLLOWING:
2:45 PM - 3:45 PM 1) Executive Session (Conferring with Town Attorney)
3:45 PM - 4:30 PM 2) Council Committee Updates
a. Water Update (Councilor D. Buckley)
b. NWCCOG Update (Councilor Sipes)
4:30 PM - 4:45 PM 3) 2009 World Championships (Ceil Foltz)
4:45 PM - 5:00 PM 4) Lighting Proposal (Ruth Borne)
5:00 PM - 5:25 PM 5) Staff Updates -
a. Comprehensive Plan Proposals (Ruth Borne)
Council Questions
Consent Agenda Questions
AND SUCH OTHER BUSINESS AS MAY COME BEFORE THE COUNCIL. THIS MEETING IS
OPEN TO THE PUBLIC.
TOWN AVON, COLORADO
BY:
Pe?fty Mc enny
To rk
Estimated times for each agenda item are shown for informational purposes only,
And subject to change without notice.
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON
OCTOBER 10, 2003:
AVON MUNICIPAL BUILDING, MAIN LOBBY
ALPINE BANK, MAIN LOBBY
AVON RECREATION CENTER, MAIN LOBBY
CITY MARKET, MAIN LOBBY
Town Clerk\Council\Agendas\2003\Avon Council Meeting.03.10.14
TOWN OF AVON
LOCAL LIQUOR LICENSE AUTHORITY AGENDA
OCTOBER 14, 2003 - 5:25 PM
Call to Order / Roll Call
2. Renewal of Hotel / Restaurant Liquor License
a. Applicant: Pazzo's West, Inc. d/b/a Pazzo's Pizzeria
Local Address: 82 E. Beaver Creek Blvd., Avon, CO
Mailing Address: 2077 N. Frontage Road West 103A, Vail, CO
Manager: Mark Colwell
b. Applicant: Vail Valley Mexican Foods, LLC d/b/a Agave
Local Address: 1060 W. Beaver Creek Blvd, Avon, CO
Mailing Address: 4506 Spruce Way #1, Vail, C
Manager: G. Richard Wheelock, Jr.
C. Applicant: Flexible Too, Inc. d/b/a Vista Brasserie
Local Address: 48 E. Beaver Creek Blvd
Mailing Address: PO Box 976, Avon
Manager: Janine Glennon
3. Other Business
4. Approval of the Local Liquor License Authority Minutes
a. Approval of the September 23, 2003 Meeting Minutes
5. Adjournment
Town Clerk\Council\Agendas\2003\Avon Council Meeting. 03.10.14
TOWN OF AVON
RESOLUTION N .03-,+l
SERIES OF 2003
A RESOLUTION DENYING FORMAL PUD AMENDMENT NO.
1 TO THE VILLAGE (at Avon) PUD DEVELOPMENT PLAN
AND PUD GUIDE, TOWN OF AVON, EAGLE COUNTY,
COLORADO
WHEREAS, Traer Creek LLC has applied for a Formal PUD Amendment to The
Village (at Avon) Development Plan and PUD Guide to Planning Areas G, M, N, Q, RMF-1,
RMF-4, and Open Space 5 and Open Space 13 (hereinafter referred to as Formal PUD
Amendment No. 1) as more specifically described in the application dated May 30, 2003 and
subsequent revisions;
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held public
hearings at which time the applicant and the public were given an opportunity to express their
opinions and present certain information and reports regarding the proposed Formal PUD
Amendment No. 1; and
WHEREAS, following such public hearing, on August 5, 2003, the Planning & Zoning
Commission forwarded its recommendations on the proposed Formal PUD Amendment No.l to
the Town Council of the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on August
26, 2003, September 9, 2003, September 23, 2003, and October 14, 2003 at which time the
public was given an opportunity to express their opinions regarding the proposed Formal PUD
Amendment No. 1; and
WHEREAS, based upon the evidence, testimony, exhibits, and in accordance with the
Town of Avon Municipal Code and regulations, Town Council for the Town of Avon finds as
follows:
F:ACouncil\ReSOlLIt10nS\2003\Res VAA PUD Amend - Oct. 14.doe
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. Formal PUD Amendment No. 1 is inconsistent with the original Village (at Avon)
application and PUD Guide as well as the criteria set forth in Title 17 of the Avon
Municipal Code.
3. The Village (at Avon)//For `ma-l PU/?D Amendment No. 1 is incompatible with the
public interest. G(^G? Avevv, t OyKp P&?..-.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Formal PUD Amendment No. 1 for The Village (at Avon) PUD for Planning Areas RMF-1,
RMF-4, N (Community Park), Q (Regional/Commercial) and Open Space 5 and 13, Town of
Avon, Eagle County, Colorado is denied for the reasons set forth above and further based upon
the following additional findings:
1. The proposed regional/commercial Area north of I-70 is incompatible with the character
of the area and development plan as it was contemplated as residential and open space
development in the Original Village (at Avon) PUD. Avon Municipal Code, Section
17.20.110.G
2. The Community Park was intended to include a wide variety of recreation activities and
optimize and preserve natural features. This planning area has been reduced below the
desired area to satisfy the intent and function as set forth in the Original Village (at Avon)
PUD and Section 17.2 H.8
3. The proposed density on RMF-4 is incompatible with proposed access for pedestrians,
vehicular traffic, circulation, and transportation requirements per Section 17.20.110 H (7)
(10) and (11).
4. The proposed location of the school site and adjacent regional/commercial development
area is opposed by the Eagle County School District. 17.20.110 H (10)
5. The Annexation and Development Agreement, Section 2(o), requires the Swift Gulch
Road extension be completed at the time of the Interstate-70 Improvements. Inasmuch as
F:\Councd\Reso1utions\2003\Res VAA PUD Amend - Oct. 14.doc
the Interstate-70 Improvements are now complete, Traer Creek is in default under the
Annexation and Development Agreement as to that requirement. 17.20.110 H (7)(10) and
(11).
ADOPTED this 14th day of October, 2003.
Town of Avon, Colorado
Town Council
Mayor
ATTEST:
Town Clerk
F:\Counci1\Reso1utions\2003\Res VAA PUD Amend - Oct. 14.doc
TOWN OF AVON
RESOLUTION NO. 03-39
Series of 2003
A RESOLUTION DENYING SUBDIVISION SKETCH PLAN FOR THE
VILLAGE (AT AVON) FILING 3, A RESUBDIVISION OF PORTIONS OF
SECTIONS 7,8 AND 9, TOWNSHIP 5 SOUTH, RANGE 81 WEST OF THE 6TH
PRINCIPAL MERIDIAN, TOWN OF AVON, EAGLE COUNTY, COLORADO
WHEREAS, Traer Creek RP LLC has applied for Subdivision Sketch Plan approval for
The Village (at Avon) Filing 3, a Resubdivision of portions of Sections 7, 8 and 9,
Township 5 South, Range 81 West of the 6th Principal Meridian in the Town of Avon,
Eagle County, Colorado; and
WHEREAS, said Application is in conjunction with application for a formal PUD
Amendment to The Village (at Avon) Development Plan and PUD Guide to Planning
Areas G, M, N, Q, RMF-1, RMF-4, OS-5 and OS-13 (hereinafter referred to as Formal
PUD Amendment No. 1); and
WHEREAS, said Application for Formal PUD Amendment No. 1 was not approved by
the Town of Avon; and
WHEREAS, said Application and related documentation was found to not be compatible
with existing zoning.
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the
Subdivision Sketch Plan for The Village (at Avon) Filing 3, A Resubdivision of Portions
of Sections 7, 8 and 9, Township 5 South, Range 81 West of the 6"' Principal Meridian in
the Town of Avon, Eagle County, Colorado is not compatible with current PUD Zoning
and is hereby denied.
I:\Engineering\Avon Village\1.0 General\PUD Amendments\Sketch Plan Res 03-39 As Adopted.Doc
ADOPTED THIS DAY OF OCTOBER 2003.
TOWN COUNCIL
TOWN OF AVON, COLORADO
Albert D. Reynolds, Mayor
ATTEST:
Patty McKenny, Town Clerk
C\Engineering\P.von Village\1.0 General\PUD Amendments\Sketch Plan Res 03-39 As Adopted.Doc
TOWN OF AVON
REGULAR COUNCIL MEETING AGENDA
OCTOBER 14, 2003 - 5:30 PM
1. Call to Order/ Roll CaIi
2. Citizen Input
a. Jonathan Levine, Avon Police Watchdog.com
3. Agreements / Ordinances
a. "Agreement Concerning School Sites" between Town of Avon & Eagle County
School District RE-50J & Traer Creek, RP LLC. (Ruth Borne)
Second Reading - PUBLIC HEARING
b. Ordinance No. 03-10, Series of 2003, An Ordinance Approving Formal PUD
Amendment No. 1 to the Village (at Avon) PUD Development Plan and PUD Guide,
Town of Avon, Eagle County, Colorado (Ruth Borne)
4. Resolutions
a. Resolution No. 03-39, Series of 2003, A Resolution approving Subdivision Sketch
Plan for the Village (At Avon) Filing 3, A Resubdivision of Portions of Sections 7, 8,
and 9, Township 5 South, Range 81 West of the 6th Principal Meridian, Town of
Avon, Eagle County, Colorado (Norm Wood)
b. Resolution No. 03-40, Series of 2003, A Resolution Approving Issuance by
EagleBend Dowd Affordable Housing Corporation of Multifamily Housing Project
Refunding Revenue Bonds, Series of 2003, in an Aggregate Principal Amount Not to
Exceed $9,800,000; and Authorizing Incidental Action.
5. New Business
a. Intergovernmental Agreement - Eagle County Inter-Jurisdictional Emergency
Operations Plan (Jeff Layman)
6. Other Business
7. Unfinished Business
8. Town Manager Report
9. Town Attorney Report
10. Mayor Report
11. Consent Agenda
a. Approval of the September 23, 2003 Regular Council Meeting Minutes
b. Renewal Service Agreement with Vail Associates, Inc.
12. Adjournment
Town Clerk\Council\Agendas\2003\Avon Council Meeting. 03.10.14
Memo
To: Honorable Mayor and Town Council
From: Patty McKenny, Town Clerk
CC: Larry Brooks, Dept. Heads, John Dunn
Date: October 9, 2003
Re: NWCCOG Information
Summary:
Brian asked me to forward the following materials from NWCCOG:
? Minutes of NWCCOG meeting on 9/25/03
? Memo from Gary Severson regarding "Direction for 2004"
? Information on the U.S. Census Numbers for our region
Northwest Colorado Council of Governments
Council Meeting Synopsis and Update
Meeting held in Grand Lake on Thursday, September 25th
This is a summary of the COG meeting in Grand Lake.
1. Municipal and Host County Updates:
Grandby:
• Activity has calmed after massive annexations although there are several more
on the horizon - Horn Ranch, etc.
• Horn Ranch is a large (2,000 acre) annexation consisting of very low-density
homes combined with massive retailing. There is a new grocery store (king
Soopers?) going in opposite the entry to Sol Vista (formerly known as Silver
Creek)
• Sales tax is up 5% total for the year
• The town is optimistic although unsure of the impacts this new development
will cause and, therefore, if these impacts have been mitigated.
Grand Lake:
• Sales Tax is up 3% total for the year
• There is some speculation this is due to greener summer, proximity to Denver
and lack of fires.
• Grand Lake has switched away from Mag Chloride for dust control (I didn't
get the name of the product they switched to, but could contact them if anyone
wishes to know).
• They are getting their first bank in town in many years.
• They are trying to fund a clinic in town, maybe part time.
• The pre-school closed its doors and left the town, but the church is looking for
a way to step in and help.
• Beetle kill has come to Grand Lake. Mostly on private land so education has
become a major priority for the town.
Hot Sulphur Springs:
• Phase I of their river bank stabilization and fishery project is nearly complete.
Phase II is far more extensive and will actually move the river channel away
from a bridge it now threatens.
• They are funding a replacement of their sewer treatment plant with outside
fund help. Next year they look to upgrade their water treatment plan to
provide 20 hours of storage. They currently have only 3 hours of storage.
NWCCOG Council Meeting Report
September 25, 2003
They have undertaken a study of alternative dust control products (alternate to
mag cl.). They are experimenting with a product called soil-sement that
seems promising (and may have some application use at the Village at
Avon?). This product actually binds the soil particles together to make a very
hard and durable surface without making it slimy like mag chloride. Also
does not run off into the water table, but can be regarded if necessary and
doesn't change the appearance of the road (important to HSS to keep rural
look). The company website is ,,r ?\ ?\..i,idwestind.com
Krenznzlin :
• Sales tax are down 9.2%
• Are installing 46 new decorative street lights
• Looking at upgrading and relocating the hospital, but undecided what to do
with the existing structure.
Winter Park:
• Intrawest is in town redeveloping the base of the ski area. Town is trying to
understand the impacts and get ahead of the developer by updating the master
plan.
• They have not been shown the entire extent of the project and so are not sure
of all of the issues. Intrawest has a draft of changes they would like to the
PUD.
• They had a busy summer and fall with many building permits issues since
Intrawest was announced as winner of redevelopment. Many projects are now
back in play after lying dormant.
• The town divorced from ASW on an affordable (attainable) housing project in
town. The town wanted affordable single family and duplex units and ASW
was only proposing duplex and 4-plex. Back to square one. (ASW is same
partner in the Avon open space land swap with VA).
II Directors Report and Other News-
The Executive Committee has directed NWCCOG to organize a session on Initiative
32 (repeal a portion of the Gallagher amendment) that will occur at the meeting in
Frisco on October 23ra
Sub-Alpine Fir Decline (different for the pine beetle problem) has been identified (not
clear by whom) as the biggest threat to the natural resources of Colorado. Tom Stone
is evidently on a committee investigating this.
A summary of other current initiatives is attached. The COG is looking to fund a
regional GIS service center and has invested over $140,000 in grant dollars
developing this capability. It is my opinion that the Town of Avon should investigate
how this could support our own GIS initiative.
Page 2 of 3
NWCCOG Council Meeting Report
September 25, 2003
III NWCCOG applied and was awarded a grant from the Governors office on Smart
Growth to study the effects of 2°d homes on the Rural Resort Region. Vail served as
the applicant because non-profits can not apply for grants, but 5 counties (including
Eagle) joined in the study.
The results of this study are fascinating and very enlightening. Many of the
assumptions we all probably have are born out, but some are not and some of the
statistics are surprising. The preliminary findings and the power point presentation
are available on the NWCCOG website (http://www.nwc.cog.co.us/)
I have attached a copy of the survey that was distributed along with a lot of back up
informative pieces about the impact (both good and bad) of second homes and studies
showing how this trend is increasing. Second homes in Avon, Beaver Creek, Vail,
Cordillera, etc. have a growing impact on our regional economy. This report begins
to shed light quantitatively on what those impacts are. This is another piece in the
puzzle, which, along with our cost to deliver services study, will help us understand
the cost and benefits of government.
Please visit the website to learn more. If enough people are interested in this topic,
we can ask that GOG give us a presentation on this information.
Please let me know if there are any topics you wish further information or
clarification on and/or if there is a topic of discussion you wish me to bring up with
the COG.
Page 3 of 3
COUNCIL OF GOVERNMENTS
To: NWCCOG Executive Committee, Council & RRR Directors
From: Gary Severson
Date: 09/17/03
CC: NWCCOG Staff
Re: Direction for 2004
The annual NWCCOG Strategic Planning Retreat was conducted on August 28, 2003 at the Mountain Chalet
in Aspen. The agenda and objectives for the meeting are attached. In attendance were:
• Patti Clapper, NWCCOG Chair, Pitkin County
• Bob Anderson, NWCCOG Vice-chair and RRR Director, Grand County
• Bill Wallace, NWCCOG Executive Committee and RRR Director, Summit County
• Tom Stone, NWCCOG Executive Committee, RRR Director, and QQ Executive Committee, Eagle
County
• Jeff Shroll, NWCCOG Executive Committee, Town of Gypsum
• Ted Wang, NWCCOG Executive Committee and QQ Executive Committee, Town of Granby
• Dick Cleveland, NWCCOG Executive Committee, Town of Vail
• Dirk Ramsey, NWCCOG Executive Committee, Town of Walden
Mick Ireland, RRR Director, Pitkin County
• Chet Gaede, RRR Chair, City of Leadville
• Gary Severson, NWCCOG
• Linda Venturom, NWCCOG
• Liz Finn, NWCCOG
• Steve Getz, NWCCOG
• Jean Briley, NWCCOG
• Rick Payne, NWCCOG
Guests
• Helen Klanderud, Mayor, City of Aspen
• Torre, Council member, City of Aspen
Following the NWCCOG business meeting, the Fourth Annual Strategic Planning Meeting began. Gary
Severson stated that the objective for the session was to establish direction for NWCCOG for the next year by
considering four sources of information:
1. Review of all N WCCOG programs.
2. Review of all NWCCOG initiatives
3. Review and evaluation of 2003 direction
4. Review of 2003 NWCCOG Member Needs Survey
Following the reviews the NWCCOG Executive Committee gave the following direction for 2004:
Associate Memberships in NWCCOG
- 6 -
Situation: From time-to-time NWCCOG receives inquiries from non-Region 12 jurisdictions
regarding membership in NWCCOG. In the past the following jurisdictions have requested
information: Town of Carbondale, Lake County, Park County, Clear Creek County, and the
City of Leadville.
Question: Should NWCCOG develop and offer Associate Memberships in NWCCOG? What
would NWCCOG associate membership give the jurisdictions since many of them have or
are receiving NWCCOG services? How do we protect value in NWCCOG membership among
region 12 jurisdictions? Is Rural Resort Region the vehicle to involve non-region 12
jurisdictions?
Direction: Survey membership and interested non-members and develop proposal for
consideration by Council. Contact the Town of Blue River about re joining NWCCOG. Bill
Wallace will accompany.
Regional GIS Service Center
Situation: NWCCOG has invested over $140,000 in grants dollars developing regional GIS capability. A
feasibility study commissioned by NWCCOG indicates that a regional GIS Service Center managed by
NWCCOG could be sustainable. The 2003 NWCCOG Member Needs Survey indicates there is sufficient
interest among members to receive services. A business plan for a Regional Service Center has been
developed. The grants are nearly completed and for Regional GIS to continue, the program must become
economically sustainable.
uestion: Should NWCCOG continue the development of Regional GIS Service Center?
Direction: Present the GIS proposal to the NWCCOG jurisdictions during the month of September to
determine level of commitment. Based on the response of the member jurisdictions, present a proposal at the
September 25, 2003 NWCCOG Council Meeting for action. If there is sufficient commitment from member
jurisdictions, the NWCCOG Executive Committee will be requested to release $9,000 from the unreserved
fund to subsidize the start-up of the service.
Large Diameter Wood Grinder
Situation: NWCCOG has been actively involved in wildfire mitigation efforts within the region. A grant has
been awarded to conduct a feasibility study regarding the conversion of public building HVAC systems from
fossil fuels to bio fuels. In addition, NWCCOG applied for a grant to develop a business plan for cost sharing
the acquisition, operations and maintenance of wood processing equipment to manage the wood residues
resulting from forest thinning projects.
Question: If NWCCOG is successful in being awarded the grant to develop a business plan, should a steering
committee made up of representatives of member jurisdiction?
Direction: If NWCCOG is awarded the grant a steering committee should assembled. In addition, the
business plan should be tied to forest health projects in insect infested stands as well as wildfire mitigation
efforts. The William's Fork drainage in Grand County and the Vail Valley in Eagle County need special
consideration.
Legislative Involvement in Biomass Utilization
Situation: In the 2003 Legislative Session a bill was introduced that would require electrical generators in
Colorado to begin burning biomass as fuel in increasing amounts over the next decades. NWCCOG
supported the concept of the bill as a way of developing markets for woody residues from wildfire mitigation
- 7 -
and forest health projects. NWCCOG did not support the definition of biomass, but was working with the
bill's sponsors to modify the defmition. The bill passed the House but died in the Senate.
Question: Should NWCCOG work with legislators to introduce a bill in 2004 that would provide economic
incentives for the utilization of biomass energy?
Direction: NWCCOG should explore the possibility of having a biomass energy bill introduced, but if
introduced should rely on its elected officials on the Council to provide support.
NWCCOG Involvement in Transportation Planning
Situation: NWCCOG is one of the few regional councils not actively involved in transportation planning.
NWCCOG is currently conducting meetings with elected officials in jurisdictions on the Western Slope of
less than 5,000 population. CDOT has expressed curiosity as to why NWCCOG is not actively involved and
the 2003 NWCCOG member needs survey indicates that transportation is one of the top three needs of
jurisdictions.
uestion: Should NWCCOG become more involved in transportation planning and if so, in what ways
should the involvement occur?
Direction: NWCCOG should play a more active role, but staff should not be involved with attending
numerous CDOT meetings, nor should NWCCOG be in a position of advocating for one member over
another for scarce transportation dollars. NWCCOG should be a clearinghouse for information concerning
CDOT planning processes and should make certain that elected officials of all of the member jurisdictions are
aware of important events in those processes. NWCCOG should remain actively involved in the I-70
Programmatic EIS, seeking accountability from CDOT on the utilization of NWCCOG demographic data.
TABOR and Gallagher
Situation: The combination of TABOR and the Gallagher Amendment produce hardships on local
governments spending and revenue generation. Amendment 32 is a measure on the 2003 Colorado general
election ballot. Amendment 32 if passed would increase the current percentage from 7.96% of assessed
residential values to 8% and would repeal the process for reducing the percentage in the future. Amendment
32 is aimed at the Gallagher Amendment. The ballot measure has been termed a "sleeper" because not too
many people, including elected officials are aware of it.
Question: Should NWCCOG become involved in TABOR, Gallagher, or Amendment 32?
Direction: NWCCOG should not take the initiative on statewide issues. That is a role filled better by
statewide organizations such as CML and CCI. However, information exchange among member jurisdictions
on issues is an important role for NWCCOG. NWCCOG should host an information session on Amendment
32 in October prior to the November 2003 general election. NWCCOG may want to work in conjunction
with CIVIL and/or CCI.
N1r'VCCOG Weatherization Program
Situation: The Colorado Low-income Energy Assistance Program (LEAP) may require that Weatherization
agencies, including NWCCOG respond to emergency service calls received by the state LEAP office. In the
past these call have been forwarded to private sector contractors for response. However, LEAP would like to
begin utilizing Weatherization agencies for this purpose.
ucstion: Should NWCCOG agree to the arrangement with Colorado LEAP and run the risk of competing
with private sector contractors?
8-
Direction: NWCCOG Weatherization should agree to the new arrangement with Colorado LEAP, being
sensitive to private contractors and sub-contracting with them to the extent possible to perform the work.
However, if the private sector is not a possibility then NWCCOG should respond to the service call.
Conclusion
The NWCCOG Executive Committee is pleased with the performance of staff in addressing the overall
mission of NWCCOG as expressed in New Direction 2000 and the specific direction given for 2003. The
ability of NWCCOG to perform at increasingly higher levels is a direct result of a highly professional
motivated staff and the development of "depth" within the organization that eliminates the vulnerable position
of being dependent on any one individual. It is also the direct result of an Executive Committee and a
Council that provides vision and adequate direction without micromanaging the organization or individual
programs.
The one concern expressed by the Executive Committee is the increasing workload on staff. A priority of the
Executive Director in 2004 will be to closely monitor staff workloads, striving to increase productivity and
quality without risking overload, burnout and attrition.
- g -
_1 ?
COUNCIL OF GOVERNMENT5 P.O. Box 2308 • 249 Warren Ave. • Silverhorne, CO 80498 • 970-468-029
_.5 • Fax: 970-463-1208 • www.nwc.cog.co.us
September 16, 2003
The U. S. Census Bureau
MEMBER Count Question Resolution Program
JURISDICTIONS Decennial Management Division, Room 2002/SFC-2
EAGLE COUNTY 4700 Silver Hill Road, Stop 7100
Avon Washington, D. C. 20233-7100
Basalt
Eagle Dear CQR Program Manager:
Gypsum
Minturn Enclosed is our challenge to the 2000 census results for 154 blocks in the four counties of
Red Cliff
Vail
Eagle, Grand, Pitkin and Summit in Colorado. The challenge is the result of a large
GRAND COUNTY amount of work conducted by several of our staff and of the assessors' offices and others
Fraser of our member counties. Some of the work was funded by a grant provided by the
Granby Colorado Department of Local Affairs (DOLA). Technical assistance was provided by the
Grand Lake
S
l
h
H Colorado Demography Section (CDS) within DOLA and by Ken Ellwanger of the U
S
ot
u
p
ur
Kremmings .
.
Bureau of the Census, on loan to CDS to help in this review of census results.
Winter Park
JACKSON COUNTY -: The attached findings are the result of an extensive process in which the 2000 census
Walden housing unit counts were compared with the countys' assessor records. Where there was
NKIN COUNTY
aspen a discrepancy of over 30 units, the blocks were selected for review and possible
SUMMIT COUNTY challenge. A listing of the housing units in the block was then prepared from the assessor
Breckenridge files and verified and, if necessary, modified from a field survey.
Dillon
Frisco The work included several months of reconciling TIGER file blocks, i.e., block faces
with
Montezuma
Silverthorne ,
local, more accurate positioning of these lines. It also included a review of all addresses
the assessors' data bases to insure that they could be related to census geography. The
field review and listing also took several months because there were a number of the very
large blocks spanning several miles of mountainous terrain and because there were a
large number of units -- hundreds -- in many of the blocks.
The member governments of our region have felt that fcr the last four decades the
populations of their jurisdictions have been significantly undercounted. For the last
census, the Denver Regional Office of the U. S. Bureau of the Census committed itself to
doing a better job, and, actually, we believe the 2000 census was more accurate than the
those of the previous three decades. Even so, our people were aware of staff and
administrative problems related to the census and were uncertain about many of the
resulting counts.
The major finding of our work is that census staff - in both the address listing process
and in the enumeration process itself - treated large sets of townhouses or condominiums
as hotels or group quarters. Because these structures were treated this way, the units
and the occasional households there-in were never listed and counted, respectively. This
failure to include these people has important consequences for political representation by
- 22 -
the counties and within the counties, federal and state fund allocations, and adequate
planning. Failure to include housing units alone affects planning and emergency service
allocations related to second homes.
Other findings of missed housing units and related populations are not as large but,
nonetheless, significant in a number of cases. Several major sections of mobile home
parks were missed where there were high occupancy rates and large numbers of persons
per household. In addition, other smaller groups of units were overlooked by the process
or because of the nature of the situation. Keep in mind that we have limited our work and
challenge to only those blocks where we found the census error to be more than 30 units.
We trust that you will give this challenge the most serious consideration as the numbers of
missed units are very large. Obviously, correcting them is more important to our funding
and planning efforts during this coming decade. Further, we hope that your addressing
and correcting these problems may some day lead to a reasonably successful censuses
in future decades.
Thank you for your consideration.
Sinc el ,
a Sev rson
ecutive Director
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STATE OF COLORADO
DEPARTMENT OF LOCAL AFFAIRS
1313 Sherman Street, Suite 521
Denver, Colorado 80203
Phone: (303) 866-2771
FAX: (303) 866-4819
TDD: (303) 866-5300
September 8, 2003
The U. S. Census Bureau
Count Question Resolution Program
Decennial Management Division, Room 2002/SFC-2
4700 Silver Hill Road, Stop 7100
Washington, D. C. 20233-7100
Dear CQR Program Manager:
pF co
0
1876
Bill Owens
Governor
Michael L. Beasley
Executive Director
I am writing this letter in support of the Northwest Colorado Council of Government's
(NWCCOG) request for a Count Question Resolution of over 150 blocks in four counties of their
region. I believe this request deserves the most serious consideration because of the size and
number of possible errors, because of a sense by local officials of serious error in three previous
censuses in these counties, and because the Census Bureau itself has been very aware of difficulties
in these areas, but, as this work shows, they have yet to be overcome all of them.
The work of the NWCCOG focused on the number of missed housing units in the 2000 Census.
Their work essentially involved comparing the 2000 Census count of housing units with those
listed by the county assessors. After comparing the listed numbers in the two data bases, they then
followed up this analysis with a field survey of those blocks with a difference of 30 units or more.
Ken Ellwanger of the U. S. Bureau of the Census, as well as myself, participated in much of the
field work. Ken was on leave from the Bureau and on assignment to our office to review such
challenges.
Limiting the review, in most cases, to just those blocks with a prospective undercount of 30
housing units or more, the NWCCOG found 154 blocks with this large an error or more. Twenty
blocks were undercounted by over 100 units. In the 154 blocks, nearly 8,600 housing were missed
in the census! As most of these were second homes, they estimate only 2,000 people were missed,
but this is not an insignificant number either. More importantly, however, the missed housing
units have major implications for planning and emergency management funding allocations in
these counties. Finally, they reflect furidamental problems in the infrastructure - the TIGER file
and the Master Address File (the mapping of housing units) -- that was used to conduct the census
in these counties.
24-
Many have said that the best census work in the nation was done in our state. Our staff, having
monitored many of these operations, believe this is true both because we had wonderful coopera-
tion and responsiveness from the Denver Regional Office in the conduct of the 2000 census and
because we know that they worked hard and overcame many problems in our hard-to-enumerate
areas. These four resort counties were flagged early by them as problem areas and, I know, special
efforts were made to overcome the difficulties; yet obviously a number of them remained.
There are several major problems for conducting a census in these areas. First, the terrain poses
great difficulties for mapping and for just getting around. The streets of subdivisions curve over
hills and mountains making it, among over things, impossible to know or sense where block
boundaries begin or end. (This is, in contrast, to our Eastern Plains, where all roads follow
township and section lines.) Second, mapping and developing administrative records of housing
units has been very expensive and difficult for these rural governments. It is only until recently that
they themselves have developed the information base that could have been helpful to the census.
In many areas, roads are not properly or uniquely named and the addresses of housing units or
parcels are incomplete. Third, much of the population - especially, ski and resort-related workers
- vacation or change residents in late April and May when census follow-up operations occur.
However, by far, the greatest difficulty in these areas has been finding local people available for
hire to assist in the conduct of census operations. Efforts are made to recruit people within the
counties, and when they are not fully successful then later efforts are made to bring in workers
from outside the county. These outside workers do the job required but lack local knowledge and
are more expensive, requiring transportation and/or overnight stay. My guess is that because the
resident population numbers are relatively low here that census priorities understandably go with
where there are people that need to be counted rather than second homes that have low occupancy
rates. These second homes -- townhouses and condominiums -- are quite numerous, making the
address listing quite tedious, and performing these operations may require special training, e.g., to
distinguish between what is a hotel and hence, a group quarter, and what is a resident and what is a
second-home occupant.
Overcoming these problems, therefore, has not been and will not be easy. However, I feel that the
NWCCOGs work in reviewing the census has provided a very significant understanding of the
problems and set the stage for substantive and targeted improvements in future census operations -
including the American Community Survey - in these areas. I trust. therefore, that the Bureau will
give this CQR its most serious attention and :will work with the NWCCOG and their local
communities in resolving these problems.
Sincerely,
Jim Westkott, Director
Colorado Demography Section
- 2 5 -
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Ruth Borne - Community Development Director
Tambi Katieb - Community Development
Date October 10, 2003
Re: Lighting Ordinance Discussion
Summary
In response to the recent discussion regarding more restrictive lighting controls in the Town,
staff is making the following recommendations as to how to proceed with this issue prior to
adoption of any new regulations.
Staff will conduct initial research into a variety of regulatory controls that may more
effectively mitigate and/or avoid any potential light pollution within the Town. Examples of
these measures may include:
¦ Requiring a lighting plan based on the type of development being proposed. The
content of this plan would be regulated based on the intensity of the development
(i.e. single family home vs. commercial development).
¦ Requiring all businesses to turn off unessential light fixtures until one hour prior to
operating hours and one hour after operating hours.
¦ Limiting residential light sources based on lot size (i.e. only so many fixtures based
on the total square footage of the lot).
¦ Phasing out of all non-conforming light fixtures (non-shielded fixtures) within a fixed
time period.
¦ Creating a maximum total lumen (lighting output) per square foot (or acre) by
different `lighting zones'. Zones could be segregated by land use (residential and
commercial zones) so different lighting needs could be adequately addressed.
While there are many good examples of effective lighting control regulations from different
municipalities and advocacy organizations (i.e. Aspen, Flagstaff, Dark Sky, etc.), the
effectiveness of any program is based on the ability to adequately implement, monitor and
enforce the controls.
Memo to Town Council, October 14, 2003 Page 1 of 2
Re: Lighting Ordinance Discussion
Staff is recommending that this discussion take place at the Planning & Zoning Commission
in order to facilitate public input inherent in their process. Recommendations and review of
existing community restrictions will be reviewed at several Planning & Zoning Commission
meetings.
The Commission will draft a set of recommendations, based on Council direction and input,
and forward these recommendations to Council for adoption as a new Lighting Ordinance.
In order to kick off this process, we have scheduled a joint meeting of the Planning and
Zoning Commission and Council for October 28 to discuss the concerns regarding lighting
control in the Town of Avon.
Additionally, staff recommends that any proposed lighting regulations b e a dopted i n t he
form of an ordinance, which may then be applied to all Town properties and residents
(including the Village at Avon).
Councilor Sipes has requested that we include the attachment in order to provide some
context to the upcoming process.
Town Manager Comments:
Attachments:
• Town of Eagle Lighting Standards
Memo to Town Council, October 14, 2003 Page 2 of 2
Re: Lighting Ordinance Discussion
4.07.005 LIGHTING STANDARDS
A. Objectives
The objectives of this Section are as follows:
1. Provide quality, context-sensitive lighting for the Town of Eagle
mountain environment; and
2. Sustain a pristine nighttime sky by controlling glare, light trespass and
light pollution; and
3. To provide for zero tolerance of light pollution and light trespass beyond
property lines within and into residential areas; and
4. To minimize light pollution and light trespass beyond property lines
within and into commercial and industrial areas; and
To require proper shielding to eliminate glare at normal viewing angles
from all high brightness sources; and
6. In facade, sign and retail applications, use lighting to create visual
hierarchy, which facilitates circulation and way finding.
B. Applicability
Except as provided herein, the provisions of this Section shall apply to
all subdivisions, planned unit developments, development permits, sign
permits, and building permits finally approved on or after the effective
date of this Section.
All lighting fixtures, devices, equipment, lamp sources and wattage,
fixture locations, and shielding installed after the effective date of this
Section shall comply with the requirements and standards of this Section.
All lighting fixtures, devices, equipment, lamp sources and wattage,
fixture locations, and shielding presently in use and existing as of the
effective date of this Section, and not in conformance with the
requirements and standards of this Section, shall be considered a legal
non-conforming use and may continue in existence subject to the
provisions of the following subsection.
C. Abatement of Legal Non-Conforming Uses
All lighting fixtures, devices, equipment, lamp sources and wattage, fixture
locations and shielding not in conformance with the requirements and standards of
this Section, and existing and in use as of the effective date of this Section, shall
be subject to the following, notwithstanding any other provision of this Title to the
contrary:
4 Chapter 4.07
4x.07.005
1. A legal non-conforming lighting use shall not be changed to any other
use except a lighting use conforming with the requirements and standards
of this Section.
2. Whenever a legal non-conforming lighting uses has been discontinued
for a continuous period of one (1) year or longer, all lighting fixtures,
devices, equipment, lamp sources and wattage, as well as fixture
locations and shielding shall be in conformance with the requirements of
this Section.
3. All lighting fixtures, devices, equipment, lamp sources and
wattage, as well as fixture locations and shielding presently existing and
in use as of the effective date of this Section, and not in conformance
with the requirements and standards of this Section, shall be brought into
conformance with such requirements and standards no later than January
1, 2007.
4. The Board of Trustees, in its sole discretion, may institute a
mandatory program for the elimination of legal non-conforming lighting
fixtures, devices, equipment, lamp sources. and wattage, as well as fixture
locations and shielding, prior to the date set forth above by providing
payments to property owners in accordance with adopted amortization
schedules for the conversion of legal non-conforming lighting to lighting
conforming with the requirements and standards of this Section.
D. Submittal Requirements
A lighting plan shall accompany all applications for development and
preliminary subdivision plans and shall be submitted separately from other
drawing information. The lighting plans and/or specifications shall show: the
type of lighting equipment, the lamp source and wattage, fixture locations,
mounting heights, shielding and all mounting details. Manufacturer catalog
and/or specification materials with scaled drawings or photographs are also
required for all lighting equipment. In addition, calculations shall be provided
which show point-by-point horizontal illuminance at ground level for all
commercial or industrial projects. Calculations for other project types shall be
provided at the Town of Eagle's request.
E. Prohibitions
1. All mercury vapor sources are outdated and are therefore prohibited.
Existing fixtures should be modified to accommodate more current
technologies such as metal halide or fluorescent lamp sources.
2. Any search light or laser light used for the purpose of advertising, or as a
beacon, is prohibited.
3. Blinking, tracing, or flashing lights are prohibited.
4. High Intensity Discharge (HID) floodlighting is prohibited.
Chapter 4.07
4.07.005
5. Fixtures with high brightness lamps and poor visual cutoff are prohibited.
6. Bollards or low-mounted luminaries (less than 12 feet above ground) are not
to exceed 35 watts.
7. Exterior neon sources such that the source can be directly viewed are
prohibited. Backlighted applications may be acceptable, and must conform
to the same restrictions as cabinet signs.
F. Exemptions
1. All lighting used for the purpose of aviation is exempted.
2. All temporary lighting used to identify hazards or roadway construction
(operating less than four months) is exempted.
3. All traffic signal lighting is exempted.
4. Low voltage, ornamental landscape lighting which meets Yard Lighting and
Lamp Shielding requirements is allowed.
5. Low-brightness, seasonal holiday lighting is allowed. Note that the National
Electric Code (Section 305-3) allows for temporary lighting installations for
up to 90 days.
6. High intensity discharge floodlighting may be used for sports lighting
applications (see Lamp Shielding Chart for restrictions).
7. Lighting for the purpose of security must meet the criteria of each application
category but may be exempted from specific control requirements.
G. GLOSSARY
Cutoff Angle of fixture) - The angle measured upward from the
vertical at which the bare source is completely blocked from view.
Discomfort Glare - Glare producing discomfort. It does not necessarily
interfere with visual performance or visibility.
Footcandle - The basic unit of illuminance (the amount of light falling
on a surface).
Full-Cutoff Fixture - A fixture that allows no emission of light above
horizontal.
Full Shielding-- Refers to internal and/or external shields and louvers
provided to prevent brightness from lamps, reflectors, refractors and
lenses from causing glare at normal viewing angles.
Chapter 4.07
4.07.005
Glare - The sensation of annoyance, discomfort, or loss in visual
performance and visibility due to bright or uncontrolled light sources.
IESNA - Illuminating Engineering Society of North America, an
organization that establishes standards for the lighting industry.
Illuminance - A measure of the amount of light incident on a surface,
expressed in footcandles.
Light Trespass - Any form of artificial illumination emanating from a
light fixture or illuminated sign that penetrates another property.
Luminance - The apparent brightness of a light fixture or lamp as viewed
from a specific direction. The luminance of a fixture can vary as the
viewing angle varies.
Motion Sensor Device - A device that will sense motion electronically and
switch on security lighting for a brief duration.
Non-Cutoff Fixture - A fixture that includes no optics to prevent light
emission above horizontal.
Nuisance Glare - Glare that causes complaints.
Semi-Cutoff Fixture - A fixture that emits some light above horizontal, but
less than a non-cutoff fixture.
Timing Device - A switching device, a part of which is a clock, set to the
prevailing time, that will control the period of operation for outdoor
lighting fixtures and signs.
Chapter 4.07
4.07.005
LAMP SHIELDING AND SPECIAL APPLICATION CHARTS
Lain Shielding Chart
Refer to this chart for shielding instructions for all exterior lighting applicatio s.
Lam Wattage Incandescent Fluorescent H.I.D.
Less than 35 None None N/A
36-75 None None Low
76-100 Low Low Medium
101-150 Medium Medium Medium
151-250 Medium
251-500 Full
501-1000 Full
1001+ Full
Legend:
None . No Shielding IESNA non-cutoff)
Low . Low Shielding (IESNA semi-cutoff)
Medium . Medium Shielding IESNA full-cutoff)
Full . Full Shielding (lamp shielded from view outside of property)
Full • Prohibited (see "Exemptions")
1. Requires a semi-cutoff fixture that emits sunlight above horizontal, but less than a
non-cutoff fixture. *
2. Requires a full cutoff fixture that allows no emission of light above horizontal.
3. Requires a fixture containing internal and/or external shields and louvers to provide
brightness from lamps, reflectors, refractors and lenses from causing glare at normal
viewing an les.
Commercial Light Level Criteria
Maximum initial illuminance values in these areas must not exceed the range specified by the
table. Values are taken from the IESNA's recommended illuminance values. Lower wattages
and mounting hei hts be im lemented whenever possible.
Area/Criteria Fast Food / Gas Station / Automotive General Walkways &
Convenience Hotel Canopy Outdoor Retail Commercial Parkways
Maximum
Initial 1.5-3.0 20 - 30 20 - 30 1.5-3.0 0.2-1.0
Horizontal
Illuminance
(fc) Value at
Ground Level
Note: Lighting for Residential and Industrial areas is covered under specific application
categories in the ordinance.
Chapter 4.07
4.07.005
PARKING AREA LIGHTING
Maximum
Parking Area Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Lighting Parkin Lots are prohibited in Rural or Standard Residential areas.
Compact fluorescent - 42 W max.
Residential Multi-Family H.I.D. 70 W max. 15 feet
Incandescent - 100 W max. Lights on dusk to
Compact fluorescent - 42 W max. dawn.
Residential Medium H.I.D. - 70 W max. 15 feet
Density Incandescent - 100 W max.
Compact fluorescent - (2)42 W max. Lights on dusk to
Public Area H.I.D. - 175 W max. dawn. 15 feet
Compact fluorescent - (2)42 W max.
Commercial Limited H.I.D. - 175 W max. Lights on until one 25 feet
Compact fluorescent - (2)42 W max. hour after closing or
Commercial General H.I.D. - 175 W max. servicing. 25 feet
Compact fluorescent - (2)42 W max.
Central Business District H.I.D. - 100 W max. 30 feet
Compact fluorescent - (2)42 W max. Lights on until one
Industrial H.I.D. - 175 W max. hour after closing 30 feet
Notes:
• Dusk-to-dawn operation is allowed for 24-hour business operations.
• Mounting height may be increased for medium and fully shielded fixtures upon the Town of
Eagle's approval.
The following table lists recommended minimum maintained average illuminance values and
maximum acceptable uniformity ratios.
General Parking & Pedestrian Areas Non-pedestrian Driveways
Parking Lot Activity Level Vehicle Entries & Exits)
Footcandles Uniformity Ratio Footcandles Uniformity Ratio
Av .:Min.) (Av .:Min.
High:
• Large shopping Malls 0.9 4:1 2 3:1
• High-volume fast food
Medium:
• Smaller shopping centers
• Office complexes
• Hotels & motels 0.6 4:1 1 3:1
• Hospitals
• Community events
• Condominiums
• Fast food
Low: (for security lighting)
• Neighborhood markets 0.2 4:1 0.5 4:1
• Industrial facilities
• School or churches
Chapter 4.07
4.07.005
YARD LIGHTING
Yard Lighting Acceptable Lamp Types & Maximum Controls Maximum
Allowable Wattages Mounting
Height
Residential Compact fluorescent - 32 W max.
Incandescent - 75 W max. 20 feet
Compact fluorescent - 32 W max. Lights on dusk
Residential Multi-Family Incandescent - 75 W max. to 11:00 PM. 15 feet
Compact fluorescent - 32 W max.
Residential Medium Density Incandescent - 75 W max. 15 feet
Compact fluorescent - (2)42 W max. Lights on dusk
Public Area Metal halide - 70 W max. to dawn. 25 feet
Compact fluorescent - (2)42 W max.
Commercial Limited Metal halide - 70 W max. Lights on until 25 feet
Compact fluorescent - (2)42 W max. one hour after
Commercial General Metal halide - 70 W max. closing or 20 feet
Compact fluorescent - (2)42 W max. servicing.
Central Business District Metal halide - 100 W max. 25 feet
Industrial Compact fluorescent - (2)42 W max. Lights on dusk
H.I.D. - 175 W max. to 11:00 PM. 30 feet
Notes:
The use of motion detectors and timers is encouraged to control specific fixtures for security
and egress applications.
The use of porch lights and egress lighting is encouraged. Dusk-to-dawn operation is
allowed for these applications. Note that these fixtures must still meet the intent of the Lamp
Shielding Chart.
10 Chapter 4.07
4.07.005
FACADE LIGHTING
Maximum
Facade Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Fa ade Lighting is prohibited in Rural or Standard Residential areas.
Residential Multi-Family Fa ade Lighting is prohibited in Residential Multi-Familyareas.
Residential Medium Density Fa ade Lighting is prohibited in Residential Medium Density areas.
Compact fluorescent - 42 W max. Lights on
Public Area Linear fluorescent - 32 W max. dusk to
H.I.D. - 70 W max. dawn
Incandescent - 100 W max.
Compact fluorescent - 42 W max.
Commercial Limited Linear fluorescent - 32 W max. Lights on See
H.I.D. - 70 W max. until one below
Incandescent - 100 W max. hour after
Compact fluorescent - 42 W max. closing or
Commercial General Linear fluorescent - 32 W max. servicing
H.I.D. - 70 W max.
Compact fluorescent - 42 W max.
Central Business District Linear fluorescent - 32 W max.
H.I.D. - 70 W max.
Industrial Fa ade Lighting is prohibited in Industrial areas
Notes (Mounting of Fagade Lighting):
• In all facade lighting, the source will be fully shielded from pedestrians and motorists.
• Sources should not be visible from inside the lighted building or from surrounding buildings.
• Uplighting must be shielded and/or fall completely on the facade.
• Downlighting of facade elements is preferred.
11 Chapter 4.07
4.07.005
SIGN LIGHTING
Maximum
Sign Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Sign Lighting is prohibited in Rural or Standard Residential areas
Residential Multi-Family Sion Lighting is prohibited in Residential Multi-Family areas
Residential Medium Density Sign Lighting is prohibited in Residential Medium Density areas
Public Area Compact fluorescent - (2)42 W max. Sign lights on
Linear fluorescent - (2)32 W max. dusk to dawn
Incandescent - 100 W max.
Compact fluorescent - (2)42 W max.
Commercial Limited Linear fluorescent - (2)32 W max.
H.I.D. - 70 W max.
Incandescent - 150 W max. See
Compact fluorescent - (2)42 W max. Sign lights on notes below
Commercial General Linear fluorescent - (2)32 W max. until one hour
H.I.D. - 70 W max. after closing
Incandescent - 150 W max.
Compact fluorescent - (2)42 W max.
Central Business District* Linear fluorescent - (2)32 W max.
Incandescent - 100 W max.
Compact fluorescent - (2)42 W max. Sign lights
Industrial Linear fluorescent - (2)32 W max. on until
H.I.D. - 70 W max. one hour
Incandescent - 150 W max. after closing
* Cabinet signs are prohibited in Central Business Districts.
General Notes:
• The word "sign" refers to any objet attached to or apart from a structure intended to convey
advertising, image, or identification. Note that the National Electric Code (Section 305-3) allows for
temporary lighting installations for up to 90 days.
• Each proprietor is limited to one illuminated sign per establishment.
• In all sign lighting, the source will be fully shielded from pedestrians and motorists.
• Sources should not be visible from inside the associated building or from surrounding buildings.
Externally Lighted Signs:
• Downlighting of signs is preferred.
• Uplighting must be shielded and/or fall completely on the sign.
Internally Lighted Signs:
• Cabinet signs, or signs with interior lighting, are to have fluorescent lamps and will not exceed 130
watts.
• The use of sources other than fluorescent for cabinet signs is subject to the approval of the Town of
Eagle.
12 Chapter 4.07
4.07.005
ROADWAY LIGHTING
Roadway Lighting Allowable Lamp Types & Maximum Maximum
Allowable Wattages Controls Mounting
Height
Residential* Compact fluorescent - (2)42 W max.
H.I.D. 100 W max. 20 feet
Residential Multi-Family* Compact fluorescent - 42 W max.
H.I.D. 100 W max. 20 feet
Residential Medium Density* Compact fluorescent - (2)42 W max. Lights on
H.I.D. 100 W max. dusk to 20 feet
Public Area Compact fluorescent - (2)42 W max. dawn
H.I.D. 175 W max. 25 feet
Compact fluorescent - (2)42 W max.
Commercial Limited** H.I.D. 175 W max. 30 feet
Compact fluorescent - (2)42 W max.
Commercial General** H.I.D. 175 W max. 30 feet
Compact fluorescent - (3)42 W max.
Central Business District** H.I.D. 175 W max. 30 feet
Compact fluorescent - (3)42 W max.
Industrial H.I.D. 175 W max. 30 feet
* House-side shields should be used in all residential areas (to prevent roadway lighting from trespassing
onto residential property).
* * Mounting height may be extended to 40 feet for special cases such as large commercial developments
only upon the Town of Eagle's approval.
Amended 1/13/00
13 Chapter 4.07
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Ruth Borne - Community Development Director
Tambi Katieb - Community Developme
Date October 10, 2003
Re: Comprehensive Plan Update Draft Request For Proposals (RFP)
Summary
Staff is submitting a draft Request for Proposals (RFP) for update to the Town
Comprehensive Plan to Council for review prior to release.
This draft was reviewed and unanimously endorsed by the Planning & Zoning Commission
at their October 7, 2003 meeting. We will also review and discuss this RFP and the update
to the Comprehensive Plan in detail at your joint work session with the Planning & Zoning
Commission on October 28, 2003.
Staff anticipates release of the RFP in late October to allow sufficient time before the
holiday season to get the selection process well underway.
Town Manager Comments:
Attachments:
• Comprehensive Plan Draft RFP
Memo to Town Council, October 14, 2003 Page 1 of 1
Re: Comprehensive Plan RFP Draft review
REQUEST FOR PROPOSALS
PROJECT: Town of Avon Comprehensive Plan Update
CLIENT: Town of Avon
c/o Tambi Katieb, Town Planner
P.O. Box 975
400 Benchmark Road
Avon, CO 81620
DATE: October XX, 2003
PART ONE: INFORMATION FOR PROPOSERS
1.01 SUBMISSION OF PROPOSAL
Proposals will be received at the Community Development Office of the Town of Avon
Attn: Tambi Katieb, Town Planner
PO Box 975
400 Benchmark Road
Avon, CO 81620
By 5:00 PM, MST, November 14, 2003
Proposals must be sealed and labeled "Proposals - Town of Avon Comprehensive Plan". Ten
copies of the proposal are required. A pre-proposal meeting is mandatory.'
Any proposal not received at the Community Development Office prior to the time set in this
request shall be disqualified.
1.02 OPENING OF PROPOSALS AND SELECTION
Town may require selected proposers considered for award to make oral presentation to the
Avon Town Council. The successful consultant will produce an updated Comprehensive Plan
that the Town will adopt as a master plan document through a public hearincr process. The final
deliverable to the Town will be a Comprehensive Plan which contains the minimum
components as identified in Part 1.10 of this Request.
1.03 REJECTION OF PROPOSALS
The Town reserves the right to reject any and all proposals. It also reserves the right to waive
any informalities in connection with the proposals.
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc
1.04 ACCEPTANCE OF PROPOSAL/PROPOSED TIMETABLE
Within ninety(90) days after the final submission date for proposals, the Town will act upon
them. The successful consultant will be requested to enter into negotiations to produce a
contract for services. This Request for Proposal will be attached and incorporated into the
contract. The Town reserves the right to terminate negotiations in the event it deems progress
toward a contract and timely completion of work to be insufficient. Criteria for selection will
include, but not necessarily be limited to, costs for services, the consultants approach or
proposed method to complete the work, education and experience of all professional personnel
assigned to the project, previous experience with similar projects, ability to perform work on
schedule and within budget, and geographic proximity (or ability to serve this project from
proposers office/service location).
Tentative Proposal and Project Timetable
RFP Advertisement Date October XX,
Required Pre-Proposal Mtng. - Council Chambers October XX,
Proposals Due by 5:00 PM November 14,
Council Awards Contract for Services January 13, 2C
Design Meetings with Town Staff January - Apr.
Public Meeting (Workshop) March 10, 20C
1't Draft Comprehensive Plan March 16, 20C
Planning & Zoning Commission Review (4 mtngs.) March & Apri
Planning & Zoning Commission Draft Review April 6, 2004
Town Council Draft Review April 27, 2004
Final Plan Review - P&Z Adoption May 18, 2004
Final Plan Review - Town Council Adoption May 25, 2004
1.05 INCURRING COST STATEMENT
The Town is not liable for costs incurred by bidders prior to the award of the contract, or at any
time after the award of the contract for any costs related to the preparation or response
requirements of the RFP.
1.06 PAYMENT
Payment will be made as set out in Part Two, on the basis of invoices submitted to the Town.
Payment shall be only for work satisfactorily completed.
1.07 CONTRACT DOCUMENTS
Contract shall consist of the contract instrument as negotiated and this request for proposal.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doe 2
1.08 LIMITATIONS ON CONTRACT TYPE
The Town will not accept proposals for the purchase of service based upon a cost plus
percentage of cost formula. Lump sums and cost plus fixed fee not to exceed, are allowed.
This rule will not be waived.
1.09 INFORMATION TO BE SUBMITTED
Failure to submit any required data item may be cause for rejection. Consultants may submit
such other data as they deem appropriate, however, voluminous or overly elaborate proposals
are discouraged.
PROPOSAL INFORMATION SHALL INCLUDE:
A. ORGANIZATION DESCRIPTION
Provide a short resume of the organization. Include types of similar services/products
performed/provided the firm.
B. REFERENCES
Provide a list of relevant municipal references and phone numbers that may be
contacted regarding firm performance related to the preparation and completion of
Comprehensive Plans (and the key components required herein for this proposal).
C. PROJECT HISTORY
Provide a description of experience your firm has had with projects similar to the one
described herein. Include contact person name and phone number, other than members
of your firm that can be contacted regarding this project.
D. ORGANIZATION PROFILE
Provide a personnel summary of those individuals you would expect to be assisting
during this project, and the percentage of project for which each will be responsible.
engineers).
E. STATEMENT OF WORK AND PRODUCT
An outline delineating the specific tasks to be performed indicating what will be done,
in what sequence, and by whom. The statement of work should include a schedule
which indicates how long each task will require, and when client meetings will be held.
Provide a clear statement of the final product.
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
F. LIST OF SERVICE COSTS
The firms shall provide a current rate schedule for all those elements that will be
involved in this project. These rates shall remain in effect for the duration of this
project. Refer to Section 3.03 for specific work elements being requested.
The cost proposal must be sealed and separately labeled from the rest of the proposal,
and include costs on completion of the project, including professional fees,
subconsultants, reimbursable and all other costs incidental to the project.
1.10 STANDARDS AND EVALUATION FACTORS FOR AWARD
A contract will be awarded only to responsible prospective consultant. In order to qualify, a
consultant must meet the following standards as they relate to this request
for proposal.
Have an established record of performance in:
Economic, Social, and Environmental Quality Ini
,creation assessment shall be included in this rep(
Cost of Coimntuiity Service/Contingent Valuatio
-hniques for public agencies.
Build out
and
approach and proposed cost instill the highest confidence level.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 4
The Town intends to negotiate a contract with the consultant whose firm, qualifications,
PART TWO: GENERAL INFORMATION
h H.
2.01 SCOPE OF WORK
-ials, expertise, tools, supplies, bonds, insurance, licenses and permits, and performing all
necessary to accomplish work items concerning the design and completion of a
rehensive master plan, unless specifically excluded as agreed upon by contract
2.02 DUTIES OF CONSULTANTS
Consultants shall diligently undertake and perform all work required by the contract.
Consultant agrees to devote the number of persons and level of effort necessary to perform and
complete the work in a timely manner. All work done will be performed to the highest
professional standards and will reflect the thoroughness, attention to detail, and application of
knowledge expected of professional consultants in the field.
2.03 OBTAINING DATA
L timely manner. Town shall make any data in its possession that is relevant to Consultant's
-vity, available to Consultant upon request. Requests shall specify the type of information
.glut, and the period for which the data is required; however, the Consultant may not require
wm to seek reports from other agencies or to prepare original research. It shall be the
nsultant's duty to discover and obtain data, research and reports prepared by public or privat
rces other than Tolmn from the custodian. Town does not vouch for the accuracy of any dat;
er than its own. Data furnished by Town shall be considered accurate only for the purpose
which it was originally gathered. Consultant shall be solely responsible for any conclusion,,
2.04 CHANGES
Town reserves the right to order changes in the work within the general scope of the project.
The project manager or his designee shall order changes in writing. In the event Consultant
encounters circumstances which it believes warrants a change in the price, quality, quantity or
method of performing work, it shall notify the project manager of the circumstances in writing.
No change in work shall be undertaken until authorized in writing by the Town. Either party
shall be entitled to an equitable adjustment in the contract price for changed work. It shall be
Consultant's sole responsibility to notify the project manager in advance, in writing, of any
work that it considers to be changed or extra. Failure to do so, and to provide and to receive
approval before processing, shall waive any claim for additional payment.
2.05 PAYMENTS
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
Consultant shall invoice Town monthly for all work done. Invoices shall itemize the work
accomplished during the payment period by hours of classification and subcontractor charges to
date of invoice. Approved invoices are paid within thirty days of presentation.
2.06 TERMINATION FOR CONVENIENCE
The Town shall have the right to terminate this contract for convenience at any time prior to
completion. Written notice of such termination shall be mailed to Consultant at its address on
file with the Town. Termination shall be effective ten (10) days from the date notice is mailed.
Upon receipt of notice of termination, Consultant shall immediately stop work and terminate all
subcontracts. Upon either termination for convenience or curtailment, Consultant shall be
entitled to receive an amount equal to the cost of work performed to date, including the cost of
terminated subcontracts provided that in no case shall the amount allowed exceed the maximum
contract price plus authorized change orders.
2.07 TERMINATION FOR DEFAULT
Upon failure of the Consultant to make satisfactory progress or failure to abide by the terms of
the contract, or to obtain, furnish or keep in force any required permit, license, bond, or
insurance, the Town shall have the right to terminate the contract for default. Written notice
of termination shall be mailed to the Consultant at its address upon the records of the agency.
Notice shall be effective when mailed. Upon receipt of notice, Consultant shall immediately
stop work and relinquish all project files to the Town. The Town may thereafter pursue the
work or hire another consultant to do so and charge the excess cost thereof to Consultant.
2.08 DISPUTES
In the event a dispute arises concerning any matter under the contract, the party wishing
resolution of the dispute shall submit a request in writing to the Town Manager. The Town
shall consider the request and respond in writing within ten (10) days giving findings and the
reasons for them. Any person dissatisfied with the findings of the Town Manager may appeal
to the Avon Town Council in writing within ten (10) days. Failure to do so waives any
objection. The Town Council shall consider any matter appealed at a hearing within thirty (30)
days. The decision of the Town shall be final upon matters of fact unless clearly erroneous or
procured by fraud.
2.09 ASSIGNMENT OF CONTRACT
Consultant shall not assign this contract or any moneys to become due hereunder, without prior
written approval of the Town of Avon.
2.10 SUBCONTRACTORS
Specialty subcontractors or subconsultants may be used to perform such work as is customary
in Consultant's profession; however, reports required shall be presented by the Consultant who
shall be liable for any faulty data, errors or omissions contained therein.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
2.11 CONSULTANT'S REPRESENTATIVE
Consultant shall designate a member of its staff who is knowledgeable concerning this project
and who has authority to act for the Consultant upon all matters pertaining to this agreement.
Consultant's representative or his designee shall be available by telephone to the Town during
normal business hours (8:00 AM to 5:00 PM, Monday through Friday) for the duration of the
work set forth in this proposal.
2.12 INSURANCE
A. In addition to such other insurance that may be required under this contract, the
Consultant shall provide adequate Workmen's Compensation Insurance for all
employees employed under this contract on this project who may come within the
protection of workmen's compensation law; and shall provide, where practicable,
employer's general liability insurance for the benefit of his employees not protected by
such compensation laws, and proof of such insurance shall be given to the Town.
B. The Consultant will be charged with the responsibility for proper and adequate
workman's compensation coverage for all his subcontract operations and in the event
Consultant's insurance does not cover each and every subcontractor, certificates
of insurance issued on policies by companies that may be acceptable to the Town
covering each and every subcontractor shall be filed with the Town prior to the
commencement of such subcontract operations.
C. Public Liability & Property Damage Insurance:
The Consultant shall take out and maintain during the life of this contract such Public
Liability and Property Damage Insurance as shall protect him and any subcontractor
performing work covered by this contract, from claims for damages for personal
damages, which may arise from operations under this contract, whether such operations
be by himself or by any subcontractor, or by anyone directly or indirectly employed by
either of them.
Insurance shall be in the minimum amounts required by the State of Colorado and local
applicable authority.
2.13 EEO PROVISIONS
The Consultant shall comply with all applicable provisions of the Regulations of the U.S.
Department of Commerce (Part 8 of Subtitle 15 of the Code of Federal Regulations) issued
pursuant to the Civil Rights Act of 1964, in regard to nondiscrimination in employment because
of race, religion, color, sex, handicap, or national origin. The Consultant shall comply with
applicable Federal, State and Local laws, rules and regulations concerning Equal Employment
Opportunity.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
2.14 TIME OF COMPLETION OF WORK AND EXTENSION OF TIME LIMIT
The work to be done under this contract shall be completed in its entirety on or before the date
specified, provided however, that the owner may in its discretion extend the time for the
completion of the work without invalidating any of the provisions herein contained and without
releasing any surety.
Extension of time as provided above will be considered by the Town only upon receipt of
written request from the Consultant.
2.15 DUTIES AND OBLIGATIONS OF CONSULTANT
The Consultant shall:
A. Make payment promptly, as due, to all persons supplying to such Consultant,
labor or material for the prosecution of the work provided for in the contract.
B. Not permit any lien or claim to be filed or prosecuted against the Town on account of
any labor or materials furnished.
C. Pay to the Department of Revenue all sums withheld from employees pursuant to
local/state statutes.
2.16 PAYMENT OF CLAIMS BY THE TOWN
If the Consultant fails, neglects, or refuses to make prompt payment of any claim of labor or
services furnished to the Consultant or subcontractor by any person in connection with the
contract as such claim became due, the Town may pay such claim to the person furnishing the
labor or services, and charge the amount of the payment against funds due, or to become due
the Consultant, by reason of this contract.
2.17 COMPENSATION WHEN CONTRACT TERMINATED FOR CONVENIENCE
In the event of termination of a contract for convenience of the Town, provisions shall be made
for the payment of compensation to the contractor. In addition to a reasonable amount of
compensation for preparatory work and for all costs and expenses arising out of termination, the
amount to be paid to the Consultant:
A. Shall be determined on the basis of the contract price in the case of any full-completed
separate item or portion of the work for which there is a separate or unit contract price;
and
B. May, with respect to any other work, be a percent of the contract price equal to the
percentage of the work completed.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc
C. Shall be based upon the approved schedule of values.
2.18 MAXIMUM HOURS OF LABOR - HOLIDAYS - EXCEPTIONS
The Consultant agrees that no person shall be required or permitted to labor more than eight
hours in any one day, or 40 hours per week, without compensation in accordance with
applicable State and Federal laws and/or regulations and Consultant's established and published
compensation policies.
2.19 INSPECTION OF PAYROLL RECORDS
The Consultant agrees that:
A. The Town, or any of its duly authorized representatives, shall have access to any books,
documents, papers, and records of the contractor which are directly pertinent to this
specific contract, for the purpose of making audit, examinations, excerpts, and
transcriptions. All required records must be appropriately maintained by the
consultant/vendor for three years after final payment, and all other pending matters are
closed.
2.20 COSTS AND FEES
In the event that any suit or action is commenced or arises from this agreement, each party shall
bear its own costs and fees including attorney fees regardless of the outcome. This provision
shall apply to the original action and any appeals.
2.21 STANDARDS OF CONDUCT
No member, officer, or employees of the Town, or its designees or agents, nor member of the
governing body of agency, and no other public official of agency who exercises any functions
or responsibilities with respect to this contract during his/her tenure, or for one year thereafter,
shall have any interest, direct or indirect, in work to be performed in connection with this
contract. All contractors shall incorporate, or cause to be incorporated in all subcontracts, a
provision prohibiting such interest.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
PART THREE: THE WORK STATEMENT
3.01 NEEDS ASSESSMENT
graphic changes have taken place in Avon. In particular, the Town annexed the Village
property and vested it with development rights that will increase the Town in size
ztically over the next 10 to 20 years. Additionally, the Town completed construction of
Road and Beaver Creek Blvd. traffic and pedestrian improvements, adopted a `Town
!r Plan' to guide redevelopment in a limited portion of Town, and began construction on
the Town of Avon has developed, the goals and policies of the existing Comprehensive Plan
,e been unable to articulate a defined vision for such a rapidly developing community.
ditionally, the recent economic recession has required the Town to reconsider how land use
isions affect the local economy and the continuous provision of public services. One of the
nary focal points of this comprehensive plan update will be an economic component that
iitifies constraints and opportunities related to development and redevelopment, as well as a
n that complement the wide array of public services provided by the Town and create
ween levels of public service and continued land development. There is also no discs
potential public/private collaborations or consolidation of public services to secure thf
3.02 GOALS
rich contains specific goals and policies related to the Capital Improvement Program of
,wn and future development and redevelopment proposals. The Comprehensive Plan w
o create a framework of `quality of life' indicators specifically tailored to the Town, as
provide an analysis and forecast of economic opportunities and constraints as they relat
continued provision of quality public services in an expanding resort conununity. Spe<
als are itemized in the Scope of Services (as listed below).
3.03 SCOPE OF SERVICES
Responses to this Request for Proposals shall be based upon the following Scope of Services:
Provision of all design services including, but not limited to land p
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 10
B. Provision of all additional surveying, GISICAD and mapping work as required 1
establish any additional information to provide the level of accuracy required for comp]
D. Coordination and facilitation of all required meetings with Town staff, public;
& Zoning Commission, and the Town Council. The minimum. number of meetings is
this proposal, however, additional meetings may be required by Town staff as necess,
understand and appropriately address all phases of the project.
Incorporation of all public and Town review continents received at all meetings as part
the draft document and part of the record of the project. The project will also reference and
.hide recommendations of the Town Center Plan, Design Review Guidelines, and any current
F. Provision of detailed and easily calculable community `quality of life' (Q.0.,
indicators, as proposed and agreed to by Town staff and both elected and appointed
Indices are expected to draw from economic, public service, recreation opportunitie
enviroiunental, and social contexts and be available as a separate document at final
adoption.
G. Provision of a build-out analysis which is included in the Comprehensive Plan
document and available as a separate `executive summary' that includes pertinent goals and
policies from the plan.
H. Evaluation of the economic setting of the Town, in context to existing land use, future
development and redevelopment opportunities, and the existing zoning constraints and
opportunities available to the Town. The evaluation and specific recommendations will focus
on balancing land uses to provide a diverse local economy that sustains the provision of
increased public services as the population of the Town increases over the next 10 to 20 years
The overarching purpose of this component is to provide a competitive advantage to Avon
merchants and ensure that basic public services are provided at a reasonable level independen
of the economic health of the resort function that Avon currently provides. The
recommendations will be made in concert with and not conflict with the proposed Q.O.L.
indicators as agreed to by the consultant and the Town.
3.04 RESPONSE REQUESTED BY TOWN
The consultant's role is viewed in distinct phases.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 11
Lecutive summary and components as required by the ToNA
i.ses as outlined above with the fee and scope of services for
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCornpPlan2003.doc
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 12
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Ruth Borne, Director of Community Development
Date October 10, 2003
Re: Second Reading of Ordinance 03-10, An Ordinance Approving Formal PUD
Amendment No. 1 for the Village (at Avon) Development Plan and PUD
Guide, Town of Avon, Eagle County, Colorado
Summary
Based upon the lengthy and complicated process of the Formal Amendment for the Village
at Avon PUD, we have prepared a spreadsheet that is attached hereto and outlines the
evolution of the planning areas (zoning) and related densities on the PUD Development
Plan since it's original approval in 1998.
The chronology of the approvals for the zoning annexations, zoning and subdivisions for the
Village at Avon are as follows:
1998 .Town approves the Village at Avon Annexation in two separate petitions
(Ordinance 98-14 & Ordinance 98-15 / September 23, 1998)
.Town approves the Planned Unit Development and Development Standards
(Ordinance 98-16 / PUD guide dated October 13, 1998)
.Town approves the Annexation and Development Agreement
(Ordinance 98-17 / Agreement dated October 13, 1998)
2001 .Town approves PUD Administrative Amendment #1
(Realign Planning Areas K & L, move Planning Area G / Date May 21, 2001)
.Town approves Preliminary Subdivision Plan for Filing 1
(Resolution 01-09 / Dated June 12, 2001)
.Town Annexes McGrady Acres Subdivision Lots 1, 2, and 3
(Ordinance 01-14 / Dated October 23, 2001)
.Town approves Annexation, Development & Subdivision Agreement for McGrady
Acres (Ordinance 01-15 / Dated October 23, 2001)
.Town approves First Amendment to Annexation and Development Agreement
(Ordinance 01-16 / Dated November 13, 2001)
.Town approves Final Plat and Subdivision Improvements Agreement for Filing 1
(Resolution 01-33 / Dated November 13, 2001)
.Town approves Preliminary Plat for Filing 2
(Resolution 01-34 / Dated November 13, 2001)
Memo to Town Council, October 14, 2003 Page 1 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
2002 .Town approves PUD Administrative Amendment #2
(Adjust building setback for Planning Area K, Wal-Mart / Dated February 13, 2002)
.Town approves Final Plat and Subdivision Improvements Agreement, Filing 2
(Resolution 02-20 / Dated April 23, 2002)
.Town approves PUD Administrative Amendment #3
(Specify deed restriction priority for Filing 2- Buffalo Ridge / Dated May 15, 2002)
.Town approves PUD Administrative Amendment #4
(Revise Design Standards for Swift Gulch Road and Trail / Dated May 15, 2002)
.Town annexes Post Boulevard
(Ordinance 02-09 / Dated July 9, 2002)
2003 .Town receives and reviews Formal PUD Amendment #1
(Revise Planning Areas N, RMF-1, M, and G, add Area Q / Dated April 3, 2003)
The formal amendment process began on April 3, 2003 when the original application was
submitted, which consisted of the following proposed modifications to the PUD
Development Plan:
• Creating an additional 5.0 acres of Regional Commercial immediately adjacent to
the new interstate exchange.
• Relocating the school site to Tract M and increasing the planning area for the school
site by almost 2.0 acres.
• Reducing the Community Park from 29.0 acres to 25.0 acres.
• Designating a Fire District Regional Facility as required by the Annexation and
Development Agreement.
• Increasing Planning Area RMF-1 from 146 residential dwelling units to 240
residential dwelling units. The size of this parcel was proposed as increasing from
24.2 acres to 33.1 acres.
• Providing a mix of 289 dwelling units on Tract M of which 163 affordable housing units
are proposed.
Agency Referrals were sent out on May 30, 2003 with a June 20, 2003 response deadline.
A work-session with Planning & Zoning Commission was held on May 20, 2003 to review
the application as submitted. Staff requested more time to review the application as well as
allowing the referral agents sufficient time to comment; however, preliminary staff
recommendations were:
To increase the Regional Commercial acreage of Planning Area Q, to create a more
efficient commercial development area.
To delete the potential for residential development on Planning Area Q, as it is not
an appropriate use immediately adjacent to the new 1-70 Interchange.
To require a m inimum d edicated a creage o n P lanning A rea M of 10 a cres f or a
school site, and require a minimum of two access points to Planning Area M to
accommodate a reasonable means of egress for both vehicular and pedestrian
access to the school site.
Memo to Town Council, October 14, 2003 Page 2 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
¦ To consider moving the school site to the southeast corner of RMF-1 to minimize the
costs of providing access to such remote site (Planning Area M/RMF-4) and
effectuate a more appropriate location for an elementary school based upon current
growth.
The Amendment was tabled to June 3, 2003.
Community Development and Engineering staff met with Karen Strakbein, Assistant
Superintendent for Eagle County School District on June 12, 2003 to review the alternative
school sites. In response, the letter dated June 16, 2003 was generated which supports
the location of the school site on RMF-4 (Tract M) in the event the United States Forest
Service access is obtained.
After two additional hearings with Planning and Zoning Commission on June 3rd and June
17th, a final public hearing was held on August 5, 2003 wherein Planning & Zoning
Commission unanimously recommended approval of the Formal PUD Amendment that
consisted of:
• Creating an additional 19.1 acres of Regional Commercial immediately adjacent to
the new interstate exchange, increase allowable building height to 45 feet, and allow
residential uses associated with community service facilities (i.e. Fire District site) as
a use by right.
• Relocating the school site to Tract M (RMF-4) and increasing the planning area for
the school site by almost 2.0 acres.
• Reducing the Community Park 17.4 acres in size. The original application proposed
25 acres, and the proposed `useable' park space was reduced from an existing 19.1
acres to 11.8 acres.
• Designating a Fire District Regional Facility as required by the Annexation and
Development Agreement at 1.0 acre in size on Planning Area Q.
• Increasing Planning Area RMF-1 from 146 residential dwelling units to a proposed
density of 307 residential dwelling units. The size of the site was also reduced from
the original application to 30.7 acres.
• Providing a mix of 310 dwelling units on Tract M (RMF-4). The types of units were
not specified.
The eleven (11) specific conditions of the Planning & Zoning Resolution 03-14
recommending approval of the Village (at Avon) PUD Amendment were as follows:
1. Submit a revised Village at Avon PUD Guide, which addresses the development
standards for Planning Area Q, and RMF-4 prior to the approval of PUD Ordinance.
2. At such time as development is proposed for Planning Area Q, RMF-1 and/or RMF-
4, the subdivision process will require adequate funds with the Town to secure
public improvements, including but not limited to roads, bike paths, sidewalks, and
utilities.
Memo to Town Council, October 14, 2003 Page 3 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
3. Prior to the issuance of any more development approvals north of 1-70, the Swift
Gulch Road extension as set forth in the First Amendment to the Annexation and
Development Agreement, Section 2(o), which requires the Swift Gulch Road
improvements be completed at the time of the Interstate-70 Improvements. This
includes the extension of Swift Gulch Road from Buffalo Ridge (Filing 2) to pass
through Post Boulevard, terminating at Planning Area RMF-1 prior to any
development set forth in this PUD.
4. Submit a revised Planned Unit Development Plan prior to the approval of the PUD
Ordinance that revises the proposed Planning Areas as follows:
• Clarify development standards for RMF-4, which limits the amount of deed-
restricted for-rent employee housing provided on this site.
• Revise development standards for Planning Area Q to require a Special
Review use for the inclusion of automobile fueling stations and carwashes.
5. Submit a detailed plan for the Community Park (Planning Area N) for review in
conjunction with subdivision plans for Area RMF-1. Submit a detailed Park Plan for
RMF-1 and RMF-4, in conjunction with subdivision plan submittal that accounts for the
useable park space removed by this amendment. The park improvements will be a part
of the Subdivision Improvement Agreements.
6. Submit a road and pedestrian alignment that is designed to accommodate the
potential for a continuous connection between RMF-1 and RMF-4 though the United
States Forest Service parcel at such time a s s ubdivision p tans a re s ubmitted f or
RMF-1. The proposed alignment will provide sufficient detail for review to meet
public road standards as required by the Town, be secured by the Town through the
Subdivision Improvements agreement for RMF-1, and be in place prior to the
construction of Planning Area G (school site dedication).
7. A continuous ECO trails bike path connection from Swift Gulch Road to RMF-1,
RMF-4, Q, N and G must be provided. This path will be secured through the
Subdivision Improvements Agreement, and will meet minimum trail standards as
specified by the Town of Avon.
8. Public Transit services will be required to serve RMF-4 as a result of the density and
school site proposed and determined by the Town during the subdivision process.
9. Establish the VAA Wildlife Trust Fund prior to the issuance of the first building permit
associated with residential development north of 1-70 as required in the Wildlife
Mitigation Plan, Exhibit D, of the Village at Avon PUD Guide.
10. This PUD Amendment approval is contingent upon concurrent approval of the
Subdivision Sketch Plan for all affected planning areas (RMF-1, RMF-4, Q, N, G).
11. Except as otherwise modified by this permit approval, all material representations
made by the applicant or applicant representative(s) in this application and in public
hearing(s) shall be adhered to and considered binding conditions of approval.
Memo to Town Council, October 14, 2003 Page 4 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
On August 12, 2003 the first reading of Ordinance 03-10 was held at the Avon Elementary
School. The application was tabled because of the following reasons:
¦ Resolution by the Town Attorney of the whether the additional density on Planning
Area M (RMF-4) was originally vested in 1998.
¦ Confirmation of available water rights for the uses proposed on RMF-4.
¦ The lack of planning for the Village core commercial area, and the proposed
increased densities on RMF-1 and Planning Area Q.
¦ Clarification of detail and support from the existing Town Comprehensive Plan.
The First Reading was heard again on August 26 and September 9, 2003. Council
approved the First Reading on September 9, 2003. In response to the tabling of First
Reading, Traer Creek modified the PUD Development Plan again to address concerns
discussed at the hearings, which included the following:
¦ Reduce the number of accessory units on RMF-1 from 70 to 25 maximum.
¦ Converted 3.6 acres of Planning Area Q back to Community Park designation.
¦ Continue working with the Eagle County School District to confirm that RMF-4 was a
suitable location for the school site.
Today, the application includes the following proposals:
¦ Relocating the school back to RMF-1, and requiring a formal amendment to move
this school site to RMF-4 as originally proposed.
¦ Planning Area N - Community Park of 19.5 acres.
¦ Planning Area Q proposed as Regional Commercial zoning for a total of 15.6 acres.
¦ RMF-4 being proposed as additional density not to exceed a total of 310 dwelling
units.
The following diagram clarifies the process required of Traer Creek should they choose to
propose
the scnool aeaication site in the Tuture:
School Site - 7.3 Acres Required Dedication
(formerly known as Planning Area G)
RMF-1
7.3 Acres conveyed to the Town through Subdivision
process prior to any development commencing
School District requests Access is obtained
dedication and issues from the USFS
bonds for school site
Formal PUD
Amendment
Town releases school
site on RMF-1 and retains
9.0 acre school site
School District requests
dedication and issues
bonds for the school site
Memo to Town Council, October 14, 2003 Page 5 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
Recommendation:
Based upon the input received at the Eagle County School District meeting held on October
8, 2003 and the inability to complete the Memorandum of Understanding with Traer Creek
LLC, staff is recommending tabling of the application.
Proposed Motion:
This is a motion to table the application for the Village (at Avon) Formal Amendment No. 1,
Ordinance 03-10.
Town Manager Comm nts
yl?
Attachments:
• Village at Avon Planning Area Chronology
• Letter dated June 16, 2003 from K. Strakbein
• Ordinance 03-10
Memo to Town Council, October 14, 2003 Page 6 of 6
Ordinance 03-10, VAA Formal PUD Amendment No. 1
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•
EAGLE COUNTY SCHOOL DISTRICT RE 501
P.O. BOX 740 • EAGLE. COLORADO 81631 • (970) 328-6321 EXT. 23 • FAX (970) 328-1024
June 16, 2003
Town of Avon Community Development Department
PO Box 975
Avon, CO 81620
RE: The Village at Avon PUD Amendment Z-PU2003-2
Ladies and Gentlemen,
0
•
The Town of Avon Planning & Zoning Commission is hearing the PUD amendment: for The
Village at Avon. The PUD amendment does not change the school land dedication requirement
and the developer-identified 9-acre, parcel in Tract M meets the dedication requirements. The
site will most likely be developed as an elementary school and the developer has insured that our
current elementary footprint will fit on the site.
Additionally, with the identification of all school sites, the school district requests that utilities be
delivered to the school site property line and that the property have both a primary and secondary
access for emergencies. Utilities include water, sewer, natural gas, telephone/data, cable and
non-potable water if being used in the immediate development. The school district supports the
primary access that is directly north of the interstate/river as this is the most direct route to the
site. The proposed roadway that winds down the mountain from the north would be seen as the
secondary access.
Thank you for contacting the school district regarding this PUD amendment. I can be reached at
328-2747 if you have any questions.
Sincerely,
Karen Strakbein
Director of Finance
TOWN OF AVON
ORDINANCE NO. 03-10
SERIES OF 2003
AN ORDINANCE APPROVING FORMAL PUD AMENDMENT
NO. I TO THE VILLAGE (at Avon) PUD DEVELOPMENT PLAN
AND PUD GUIDE, TOWN OF AVON, EAGLE COUNTY,
COLORADO
WHEREAS, Traer Creek LLC has applied for a Formal PUD Amendment to The
Village (at Avon) Development Plan and PUD Guide to Planning Areas G, M, N, Q, RMF-1,
RMF-4, and Open Space 5 and Open Space 13 (hereinafter referred to as Formal PUD
Amendment No. 1) as more specifically described in the application dated May 30, 2003 and
subsequent revisions;
WHEREAS, the proper posting, publication and public notices for the hearings before
the Planning & Zoning Commission of the Town of Avon were provided as required by law; and
WHEREAS, the Planning & Zoning Commission of the Town of Avon held a public
hearing on June 17, 2003, at which time the applicant and the public were given an opportunity
to express their opinions and present certain information and reports regarding the proposed
Formal PUD Amendment No. 1; and
WHEREAS, following such public hearing, the Planning & Zoning Commission
forwarded its recommendations on the proposed Formal PUD Amendment No.1 to the Town
Council of the Town of Avon; and
WHEREAS, after notices provided by law, this Council held a public hearing on the
26th day of August, 2003 and September 23, 2003, at which time the public was given an
opportunity to express their opinions regarding the proposed Formal PUD Amendment No. 1; and
WHEREAS, based upon the evidence, testimony, and exhibits, and a study of the
Comprehensive Plan of the Town of Avon, Town Council of the Town of Avon finds as follows:
F:\Counci1\Ordinanccs\2003\Ord 03-10 VAA PUD Amend - Oct. 14.doc
1. The hearings before the Planning & Zoning Commission and the Town Council
were both extensive and complete and that all pertinent facts, matters and issues
were submitted at those hearings.
2. That the amendment is compatible with the Village (at Avon) PUD Guide and
original application premise and the policies as specified by the Town of Avon
Comprehensive Plan.
3. That the development standards for The Village (at Avon) PUD comply with each
of the Town of Avon's PUD design criteria and this proposed development is
consistent with the public interest.
4. That adequate facilities will be available to serve development for the type and
scope proposed for each respective planning area upon completion of the
subdivision process for the area encompassing Formal PUD Amendment No. 1.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO, THAT:
The Formal PUD Amendment No. 1 for The Village (at Avon) PUD is approved for Planning
Areas RMF-1, RMF-4, N (Community Park), Q(Regional/Commercial) and Open Space 5 and
13, Town of Avon, Eagle County, Colorado with the following conditions:
1. The additional density on RMF-4 formerly known as a part of Planning Area M consists
of a maximum of 310 dwelling units limited to RMF-4 only and is in addition to the
2,400 dwelling units currently approved in The Village (at Avon) PUD Guide, Section D
and the Annexation and Development Agreement recorded November 25, 1998.
2. As part of the final subdivision process, an approved subdivision improvements
agreement and provisions for adequate collateral for public improvements consisting of,
but not limited to roads, bike paths, sidewalks, and utilities shall be completed prior to
any development for each respective planning area: Planning Area Q, RMF-1 and/or
RMF-4.
3. A final court decree of adjudicated water rights for the adequate quantity and use along
with all related agreements, leases and contracts shall be approved and fully executed for
the provision of water to RMF-4 as a prerequisite of final plat approval.
F:\Counci1\Ordinances\2003\Ord 03-10 VAA PUD Amend - Oct. 14.doc
4. The Annexation and Development Agreement, Section 2(o), requires the Swift Gulch
Road extension be completed at the time of the Interstate-70 Improvements. The Swift
Gulch Road extension shall be collateralized as part of a final subdivision plat prior to
commencement of any development or grading north of I-70.
5. Submit a detailed plan for the Community Park (Planning Area N) for review in
conjunction with subdivision plans for Planning Area RMF-l. Submit a detailed Park
Plan for RMF-1 and RMF-4 in conjunction with a final subdivision plat that accounts for
the 3.4 acres of useable park space removed by this amendment. The park improvements
will be incorporated into the Subdivision Improvement Agreements.
6. Submit a road and pedestrian alignment that is designed to accommodate the potential for
a continuous connection between RMF-1 and RMF-4 across the United States Forest
Service parcel at such time as subdivision plans are submitted for RMF-1. In the event
approval for the proposed alignment is obtained from the Forest Service, then a public
road as depicted on The Village (at Avon) PUD Development Plan Formal Amendment
No.1 will be required to be collateralized and constructed in accordance with a
Subdivision Improvements Agreement prior to the construction of any development on
RMF-4.
7. A continuous ECO trails bike path connection from Swift Gulch Road through RMF-1,
RMF-4, Q, and N must be provided. This path will be secured through the Subdivision
Improvements Agreement, and will meet minimum trail standards as specified by the
Town of Avon. Additionally, the trail must be indicated on the Preliminary Subdivision
Plan submittal.
8. Public Transit services will be required to serve RMF-4 as a result of the impact of the
additional density and potential relocation of the school site to a more remote location.
Prior to issuance of any building permit for either RMF-4, an agreement establishing the
level of service and funding must be executed between the Town and Traer Creek LLC.
9. The School Site must be dedicated by Traer Creek LLC to the Town in accordance with
the Annexation and Development Agreement, Section 4.3(f) and all terms and conditions
as provided by the Memorandum of Understanding ("MOU") dated , 2003 by
F:\Counci1\Ordinances\2003\Ord 03-10 VAA PUD Amend - Oct. 14.doc
and between the Town of Avon, Traer Creek LLC, and Eagle County School District RE-
50J. A copy of the fully executed MOA is attached and incorporated herein.
10. The designated School Site in RMF-1 shall be dedicated by Traer Creek LLC to the
Town at the time of recording of Final Subdivision Plat for the area including RMF-1. In
the event the Forest Services access is obtained and other terms and conditions as
provided by the MOU are complied with, the Town will release its claims to the School
Site in RMF-1 upon recordation of Final Subdivision Plat for the area including RMF-4
and corresponding dedication for the Alternate School Site by Traer Creek LLC to the
Town.
11. The final design site plan for Planning Area Q shall require review and approval by the
Planning & Zoning Commission for any automobile stations and/or carwashes.
12. Establish the VAA Wildlife Trust Fund prior to the issuance of the first building permit
associated with residential development north of I-70 as required in the Wildfire
Mitigation Plan, Exhibit D, of the Village at Avon PUD Guide.
13. This PUD Amendment approval is contingent upon concurrent approval of the
Subdivision Sketch Plan for all affected planning areas (Planning Areas RMF-1, RMF-4,
Q, and N).
14. The 1.0-acre fire site will be provided on the Community Park (Planning Area N).
15. Accessory units on RMF-1 will be a permitted use in the PUD Guide and counted as a
residential dwelling unit.
16. Except as otherwise modified by this permit approval, all material representations made
by the applicant or applicant representative(s) in this application and in public hearing(s)
shall be adhered to and considered binding conditions of approval.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED
POSTED, this _ day of , 2003, and a public hearing shall be held at the
regular meeting of the Town Council of the Town of Avon, Colorado, on the day of,
2003, at 5:30 P.M. in the Municipal Building of the Town of Avon,
Colorado.
F:\Council\Ordinances\2003\Ord 03-10 VAA PUD Amend - Oct. 14.doc
Town of Avon, Colorado
Town Council
Mayor
ATTEST:
Town Clerk
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED
POSTED the day of , 2003.
Town of Avon, Colorado
Town Council
Mayor
ATTEST:
Town Clerk
F:\Counci1\Ordinances\2003\Ord 03-10 VAA PUD Amend - Oct. 14.doc
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The Village (at Avon) PUD Development Plan
Formal PUD Amendment Number One
Ordinance 03-10 Town of Avon, Colorado
RMF-3
16.3 ac
OS-B
_ I- _... Lot 1 1
OS-5 Mete
OS4
t
184.5
I
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' 101,9
9 ac ? ? ? ? I
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\ 3.6 ac
A
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: OS -7
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?? A " ? 20.5 ac
- A B ` --- O
S-137
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0S 8
_ r ?' i- M5 145.2 ac
E 78 ac
•
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A
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73 u'/
_
_
_ Pr edfQ.
EMD LIMITED LLABaXrY COMPANY
e r K RMF-1 ,
____
___ ..__ maTRAERCxEERL?
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ac
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Prepae
dby.
NOTES:
1. Lot Isint-dedfause ahomeowna
Proposed Access ROW
- /
\/ ZEHREN
AND ASSOCIATES, INC.
fsdlitimanciresidentialcaretslserunit. No
additional rmcicalialuse shall be allowed an
Lot 1 "• ..` L
' -?
RMF-4 Z E N R E N n'
.,,_. ? s`
s
. r\ ??? 0g \ ,v
DS RMF-= Alternate
1 P
2 There arena Itsr®nbered2, 3,4 and 5m \
v
O
y',r School".
1 1
9
0 NORTH
this plan.
OS-12 .
ac
3. •Total residential deasitypermitted within the -?
.- CERTIFICATE OF LANDOWNER REQUEST
sake P.U.D. shall h2,4Wads (excluding 02ac .: .:
.. ,..
thos U-,d in Area RMF-4). Total --10
'Ahwav). C) _-_ Rnow
immhytheselraseres niYTPAERCREEKLLC and EMDOhBTED1IABILTTYC01nPAN
Commercial demityperrm[red within die entire
5.481 m
3.
Imdledbabi}itycorrgnnin, do haebymgtest appowl of PU? Dexlapmrnt Plan Amendment Number bs i.
P.U.D shall be 650,000 square feet.
r?Z-
4. PawanttoSectian 17.14.050 of the Avon OWNER: OWNER
fi5mripal Code:
tt,up
Nn
avested
nt
Approval
d EMD LIMITED LIABILITY COMPANY TRAER CREEK LLC,
mto
PaB°anteuto
}val¢ty
right,
Article
68
of
Title
a Colorado lbroted liability company Colorado tithed liability c
ompanY
ZI, C. R. S., as amended
5. Thiasyrnhel; 53 try', LAVA CORPORATION by,
aCalaad.-parim, as Manager
indicates a&alding Envelope Location. Name: Magus Lindroln
by: Tkle: Mauga
LAND USE
RBSIdEnhel
ACRES %OFSTE ALLOWED MAX
DENSITY DUTACRE
RCS1dCI1f1aI
ACRES %OF-9rM
MAX ALLOWED
DENSITY--DUTACRE
20 Residential lSingle Family
Last-96 910.1 50.64 lprirmry/I secondary
residence per lot AfBaA 'illageCenter 33.0 1.84 25dtu'acre
RMF-1 ResidentiallMuld-Family 30.7 1.74 6 du/acre AreaBi Cultural/Recreational 2.4 0.14 10 dahacre
}iMP.2 Residential/Mull-Family 43.6 2.44 12 du/acre AreaC Ice Skating/Events Center 1.7 0.1% 4 du/acre
RMF•3 Residential/Multi-Family 16.3 0.9% 6 da/acre AD `+ lageResidential 205 1.1% B du/acre
RMF4 Residential/ Multi-Family
47.7
2.7%
310 totddt AfeaE Village Residential 5.5 0.34 18 d7acTe
'A,.. F Village Residential 9.5 0.5% 18 da/acre
Subtotal 1048.5 58.6SO
AreaH Neighborhood Center 3.2 0.2% 15 du/acre
Parks and Open Space
® Area I lit iehborhoodCenter 5.7 0.34 15 dufacre
Area N - Camonulity Park 19.5 1.1%
Area J' Regional Commercial
8.4
0.54
15 dulaae
Natural Open Space
gara0cu-l2 473.4 26.44
-AreaK Regional Commercial
29.9
1.74
15da/aae
P1,1,d
P arwfAP e 15.7 0.9%
' Area L Regional Commercial
4.0
0.24
15 duleae
Subtotal 508.7 28.44
'A RegonalCommacial 15.6 0.94 15 du/acre
Road R. 0. W. 93.4 5.24 Subtotal 139.4 7.8%
Subtotal 93.4 5.24 PROJECT TOTALS- 1789.9 100.0% 2,710 Maximum Units
Name: Magnus Lindholm
Tile: President
ADMINISTRATIVE AMENDMENTS:
SfATSOP COLORADO)
No.I PUD Development Plan Administrative Amendment No.1 to The Village (at Avon) P.U.D. Development Platt/ )SS:
COUNTYOFEAGLE )
Sketch Plan dated October 9, 1998 as shown on document recorded July 31, 2001 as Reception No. 763439 The foregoingmouttentwnadmewledgedhefaemeths_drydAFril2003,byMagnusLitithoin
i
as Manager, of Tmer C rekLIZ, a Coln ado l
mited liability emegmm y, and by 3lagras Lindholm. as President of
No.2 PUD Guide Administrative Amendment No. 2 to recorded January 19,2002 as Reception No. 786234 LAVA Corporation, a Cdaad.emporadon, as Manager of EMD Litmus LiabiltyCanpmy, aColardo limited
No.3 PUID Guide Administrative Amendment No. 3 to recorded May 15, 2002 as Reception No. 795806 L'b'litycornpry'
Witness ray hand and official seal. Mycamnusimexryn:
No.4 PUD Guide Administrative Amendment No. 4 to recorded May 15, 2002 as Reception No. 795805
P.U.D. DEVELOPMENT PLANS:
No.l TheVillage (atAvon) PUDDevelopment Plan, Town arAvonOrdinance No.98.14.Recorded November25,1998
as Reception No. 677740
Notary Podic
APPROVAL
This Amendment to The Village (at Avon) P. U. D. Development PIaJSketch Plan dated October 9,1998
(the Original Plan) (i) is approved as aFort al.Amerdmem in accordance with The Village (a Avon) PUD
Guide, Section H.2 and the Town of Avon Manicipal Code, Title 17 Chapter 17.201 10-K this
day of September 2003 for filing with the Clerk and Recorder of the County of Eagle, and (ii) amends and
mpl- the Original Plan in is entirety a shown he=-.
TOWN OF AVON
DEPARTMENT OF COMMUNITY DEVELOPMENT
By: Designated Representative
"r' T 0 9 2003
Ruth O. Borne, Director
Community Development Department
STATE OF COLORADO} ) 55 ?-Ommunltt/ Dev0lopment
:
COUNTY OF EAGLE )
The foregoinginctrument was acknowledged before me this _ day of October 2003, by Ruth O.
Bome, Director of Community Development, Town of Avon, Engle Cmmry, Colorado.
Witness my hand and official seal, Mycammissionupires
Notary Public
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Norman Wood, Town Engineer`
Date: October 9, 2003
Re: The Village (at Avon) Sketch Plan Approval -Resolution No. 03-39, Series of
2003
Summary: Traer Creek RP LLC has submitted an application for Subdivision
Sketch Plan approval in conjunction with an application for a formal PUD Amendment to The
Village (at Avon) Development Plan and PUD Guide to Planning Areas G, M, N, Q, RMF-1,
RMF-4, OS-5 and OS-13. A revised Sketch Plan was submitted October 7, 2003 that
corresponds with a Revised PUD Plan submitted September 30, 2003. The revised Sketch
Plan and supporting documentation have been reviewed for compliance and compatibility
with the proposed PUD Amendment, prior agreements and Town of Avon Subdivision
Regulations. Based upon this review we recommend approval of Resolution No. 03-39, A
Resolution Approving Subdivision Sketch Plan for The Village (at Avon) Filing 3, A
Resubdivision of Portions of Sections 7, 8 and 9, Township 5 South, Range 81 West of the 6t"
Principal Meridian, Town of Avon, Eagle County, Colorado, concurrently with approval of
Ordinance No. 03-10, an Ordinance approving Formal PUD Amendment No. 1.
The attached Draft of Resolution No. 03-39 has been modified to require a roundabout at the
intersection of Post Boulevard and Swift Gulch Road, and to correspond with the revised PUD
and Sketch Plan.
Discussion: Documentation submitted with the Sketch Plan Application
includes an Engineering Geologic Reconnaissance of Tract M and Upper Access Road by
Golder Associates, Inc., a traffic study by LSC Transportation Consultants, Inc. and letters
from E agle R iver W ater & S anitation D istrict a nd Excel Energy indicating their ability to
provide water, sewer and natural gas service to Tract M.
1AEngineering\Avon Village\1.0 Gene]al\PUD Amendments\Res 03-39 Memo-2.Doc
The Golder Engineering Geologic Reconnaissance identifies some potential hazard areas
along the proposed access road to Planning Area RMF-4, and within the Planning Area. The
report also states, "The required mitigation can be implemented using conventional civil,
geotechnical, and hydrologic engineering practices."
The LS C traffic study i ncludes t rip g eneration f or in aximum a nticipated d evelopment a nd
evaluates impacts on proposed roadway design. We believe the study reflects potential traffic
expected to be generated by the proposed zoning and the impacts on the street network. We
generally concur with recommendations in the report with the exceptions that are based upon a
Level of Service (LOS) of D as being satisfactory. The Town of Avon has established LOS C
as a minimum satisfactory LOS. We believe the following conditions included in Resolution
03-39 will improve the projected LOS to C or better in all areas.
1. Post Boulevard / Road D / Swift Gulch Road / Road 1 Intersection shall be
constructed as a roundabout to maintain Level of Service C per Town of Avon
Standards.
2. Swift Gulch Road
a. Minimum distance from Post Boulevard intersection to entrances and
minimum distance between entrances shall be 300 feet.
b. Left turn lanes shall have a minimum width of 12 feet.
c. Left turn lanes shall extend to the westerly boundary of Tract Q.
Road 1 (Swift Gulch Road East)
a. Minimum distance from Post Boulevard intersection to entrances and
minimum distance between entrances shall be 300 feet.
b. Left turn lanes shall have a minimum width of 12 feet.
c. Left turn lanes shall extend to the easterly boundary of R IF-1.
The letter from Eagle River Water & Sanitation District indicates an ability to serve Tract M
with the understanding it is within the scope of the original PUD and 2400 Units. The
proposed Formal PUD Amendment No. 1 allows up to 310 residential units in Planning Area
RMF-4 that are in addition to the 2400 Units in the original PUD. Resolution No. 03-39
includes the following condition:
Submit documentation for additional water rights dedication, adjudication and
approved related agreements with Upper Eagle Regional Water Authority and the
Town of Avon for residential units and irrigated areas in RMF-4 (Tract M).
We believe this will assure that adequate water rights will be provided for the potential
development on Tract M (Planning Area RMF-4)
0 Page 2
Recommendation: Approve, deny or table Resolution No. 03-39, A
Resolution Approving Subdivision Sketch Plan for The Village (at Avon) Filing 3, A
Resubdivision of Portions of Sections 7, 8 and 9, Township 5 South, Range 81 West of the 6"'
Principal Meridian, Town of Avon, Eagle County, Colorado, c oncurrently with approval,
denial or tabling of Ordinance No. 03-10, an Ordinance approving Formal PUD Amendment
No. 1.
Alternatives: The Sketch Plan has been submitted in conjunction with
proposed Formal PUD Amendment No. 1 and should be approved concurrently with
Ordinance 03-10, An Ordinance Approving Formal PUD Amendment No.1 for The Village
(at Avon) Development Plan and PUD Guide, Town of Avon, Eagle County Colorado. If
Ordinance 03-10 is tabled or denied on Second Reading, Resolution No. 03-39 should also be
tabled or denied accordingly.
Proposed Motion: I move to table Resolution No. 03-39 and Ordinance
03-10, An Ordinance Approving Formal PUD Amendment No.l for The Village (at Avon)
Development Plan and PUD Guide, Town of Avon, Eagle County, Colorado.
Town Manager Comments:
0 Page 3
NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, that the Town hereby finds and determines that the
Subdivision Sketch Plan for The Village (at Avon) Filing 3, A Resubdivision of Portions
of Sections 7, 8 and 9, Township 5 South, Range 81 West of the 6th Principal Meridian in
the Town of Avon, Eagle County, Colorado is in general compliance with applicable
agreements and subdivision regulations of the Town of Avon, based upon compliance
with certain conditions, and is hereby approved and the applicant is authorized to proceed
with development of a Preliminary Plan subject to the following guidelines and
conditions:
A. Swift Gulch Road Design shall include:
1. 10 foot wide separated and paved pedestrian/bike path.
2. Design to Collector Road Standards.
3. Minimum distance from Post Boulevard intersection to entrances and
minimum distance between entrances shall be 300 feet.
4. Left turn lanes shall have a minimum width of 12 feet.
5. Left turn lanes shall extend to the westerly boundary of Tract Q.
6. Realign road with minimum curve radius of 300 feet and to be more
compatible with topography between OS-13 and Tract N.
7. Increase length of transition between two and three lane sections.
B. Road 1 (Swift Gulch Road East)
1. Design to Collector Road Standards.
2. Minimum distance from Post Boulevard intersection to entrances and
minimum distance between entrances shall be 300 feet.
3. Left turn lanes shall have a minimum width of 12 feet.
4. Left turn lanes shall extend to the easterly boundary of RMF-1.
5. Increase length of transition between two and three lane sections.
C. Road D (Post Boulevard North)
1. Post Boulevard / Road D / Swift Gulch Road / Road 1 Intersection shall be
constructed as a roundabout to maintain Level of Service C per Town of
Avon Standards.
2. Design shall include full implementation of mitigation of geologic hazards
as identified and recommended in "Engineering Geologic Reconnaissance
of Tract M and Upper Access Road, the Village at Avon," dated May 9,
2003, by Golder Associates, Inc.
3. Design to Collector Road Standards unless application for Variance from
Subdivision Regulations is approved with or prior to Preliminary Plan
submittal, to allow variation from collector road standards for alignment
and grade and to decrease shoulder width from 6 feet to 4 feet.
IAEngineering\Avon Village\1.0 General\PUD Amendments\Sketch Plan Res 03-39 1st Amend.Doc
D. Road 2 (RMF-4)
1. Extend right-of-way westerly to US Forest Service property boundary
2. Design to Collector Road Standards from Road D intersection westerly to
US Forest Service property boundary
3. Design to Collector Road Standards from Road D intersection easterly to
cul-de-sac unless application for variance from Subdivision Regulations is
approved, with or prior to Preliminary Plan submittal, to allow cul-de-sac
length greater than 1000 feet and serving more than 20 residential units.
4. Include pedestrian / bike path to extend from western boundary of RMF-4
to eastern boundary of RMF-4.
E. Planning Area RMF-4 (Tract M)
1. Submit documentation for additional water rights dedication, adjudication
and approved related agreements with Upper Eagle Regional Water
Authority and the Town of Avon for residential units and irrigated areas in
RMF-4 (Tract M).
2. Identify geologic hazard areas and proposed mitigation measures with
Preliminary Plan submittal.
F. General
1. Revise title of Subdivision to, "The Village (at Avon) Filing 3.
ADOPTED THIS DAY OF SEPTEMBER 2003.
TOWN COUNCIL
TOWN OF AVON, COLORADO
Albert D. Reynolds, Mayor
ATTEST:
Patty McKenny, Town Clerk
1:\Engineering\Avon Village\1.0 General\PUD Amendments\Sketch Plan Res 03-39 1st Amend.Doc
VON
C O L O R A D O
TomofAm
P.O. BCOC975
900 Bic Road
Awn, Cdaado81620
970-798-4005
Office of the Town Manager
To: Honorable Mayor and Town Council
Fr: Larry Brooks, Town Manager
Dt: October 9, 2003
Re: Refunding Revenue Bonds for Kayak Crossing
In 1998 the Town of Avon sponsored conduit debt for the affordable housing project known
as Kayak Crossing. This debt does not create a financial obligation of the Town, but rather
the sponsorship of this issue allows the Housing Corporation preferred financial
consideration in the market.
The attached funding resolution will allow the Housing Corporation to issue project refunding
revenue bonds to replace the 1998 issue referenced above. This refunding issue is
requested on the same conduit basis as the 1998 issue and allows the Housing Corporation
the opportunity to take advantage of current market conditions for the benefit of the project.
The Town's bond council on this issue is Calvin Hanson, who will be at the meeting to
answer any of the council's questions. We also anticipate that the applicant's council from
the firm Hogan and Hartson will be present to explain their position. Pending the final
approval from Calvin Hanson regarding the Amended and Restated Trust Indenture, it is
recommended that the Town approve the refunding resolution.
TOWN OF AVON, COLORADO
RESOLUTION NO. 03-40
SERIES OF 2003
RESOLUTION APPROVING THE ISSUANCE BY
EAGLEBEND DOWD AFFORDABLE HOUSING
CORPORATION OF MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BONDS, SERIES 2003, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$9,800,000; AND AUTHORIZING INCIDENTAL ACTION.
WHEREAS, EagleBend Dowd Affordable Housing Corporation (the
"Corporation") has been duly organized under the provisions of Colorado law governing
nonprofit corporations, for the purpose of acquiring interests in real property and to construct,
install and operate certain improvements in or near the Town of Avon (the "Town"); and
WHEREAS, the Corporation has previously entered into a Trust Indenture dated
as of July 1, 1998 (the "1998 Indenture") and has issued its Multifamily Housing Project
Revenue Bonds, Series 1998A in an aggregate principal amount of $9,500,000 (the "Series
1998A Bonds"), its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998B in
an aggregate principal amount of $600,000 (the "Subordinate Series 1998B Bonds"), and its
Multifamily Housing Project Subordinate Revenue Bonds, Series 1998C in an aggregate
principal amount of $1,000,000 (the "Subordinate Series 1998C Bonds" and, together with the
Series 1998A Bonds and the Subordinate Series 1998B Bonds, the "Series 1998 Bonds") to
acquire and construct real and personal property, buildings and improvements, to provide
dwelling accommodations at rentals within the means of individuals or families of low or
moderate income (the "Project"), known as "Kayak Crossing" on a site of approximately 4.73
acres in unincorporated Eagle County, Colorado, near the Town; and
WHEREAS, in order to assure that responsibility for operation of the Project is
vested in the Corporation, the Town and the Corporation have previously executed and delivered
a Project Agreement dated as of July 1, 1998 (the "Project Agreement"), under the terms of
which the Corporation is responsible to operate the Project, and title to the Project shall vest in
the Town upon the end of the term of the Project Agreement; and
WHEREAS, the Corporation now desires to provide for a partial refinancing of the
Project and refunding of the Series 1998A Bonds and, in order to provide funds therefor, the
Corporation intends to amend and restate the 1998 Indenture by entering into an Amended and
Restated Trust Indenture dated as of October 1, 2003 (the "2003 Indenture) with U.S. Bank
National Association, as Trustee, and intends to issue pursuant to such 2003 Indenture its
Multifamily Housing Project Refunding Revenue Bonds, Series 2003A, in an aggregate principal
amount not to exceed $9,800,000 (collectively, the "Series 2003 Bonds"); and
WHEREAS, a proposed form of the 2003 Indenture (including the forms of the
Series 2003 Bonds contained therein) has been presented before the Town Council (the
"Council") at this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, AS FOLLOWS:
1. Approval of Modifications to and Amendment of 1998 Indenture. In
accordance with the terms of the Project Agreement, the Town hereby approves and consents to
the amendment and modification of the 1998 Indenture as provided in the 2003 Indenture.
2. Issuance of the Series 2003 Bonds. The Series 2003 Bonds and the
issuance thereof by the Corporation for the purpose of refinancing a portion of the Project by
refunding the Series 1998A Bonds are, in all respects, hereby approved. The Series 2003 Bonds
shall be issued solely as fully registered bonds without coupons in the denominations as provided
in the 2003 Indenture. The Series 2003 Bonds shall bear interest payable at the rates and times
and will mature in the amounts and on the dates set forth in the 2003 Indenture, as finally
executed.
The Series 2003 Bonds shall be issued and secured as set forth in the 2003
Indenture, and the forms, terms and provisions of the Series 2003 Bonds and the provisions for
their execution, authentication, payment, registration, transfer, exchange, redemption and number
shall be as set forth in the 2003 Indenture.
The Town hereby designates the Series 2003 Bonds as "qualified tax-exempt
obligations" pursuant to Section 265(b) (3) of the Internal Revenue Code of 1986, as
amended, and represents that the reasonably anticipated amount of tax-exempt obligations (other
than private activity bonds) which will be issued by the Town during the calendar
year 2003, including obligations issued by subordinate entities of the Town and by entities
issuing obligations on behalf of the Town, does not exceed $10,000,000.
3. Town Action. The Mayor of the Town and the Town Clerk are hereby
authorized and directed to execute and deliver such documents and to take all action necessary or
reasonably required to carry out, give effect to and consummate the transactions contemplated
hereby and thereby.
4. No Indebtedness of the Town. No provision of this Resolution or of
the Project Agreement, the 2003 Indenture, the Series 2003 Bonds or any other instrument
executed in connection therewith, shall be construed as creating an obligation on the part
of the Town to pay the principal of, premium, if any, or interest on the Series 2003 Bonds,
nor as creating an indebtedness or financial obligation on the part of the Town within the
provisions or limitations of any statutory or constitutional provision of the laws of the State
of Colorado or any provision of the home rule charter of the Town.
5. Title to Project. The Town hereby determines that it will accept title to the
Project, including any additions thereto, when all the Bonds (as defined in the 2003 Indenture)
are fully paid and discharged.
6. Severability. If any provision of this Resolution should be held invalid,
the invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provisions hereof are severable.
7. Other Actions. The appropriate officers of the Town are hereby authorized
to execute and deliver for and on behalf of the Town, any or all additional certificates, documents
and other papers and to perform all other acts they may deem necessary or appropriate in order to
implement and carry out the matters authorized in this Resolution and in any resolution of the
Corporation.
8. Effective Date; Repealer. This Resolution shall take effect immediately
upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in conflict
with this Resolution are hereby repealed or modified to the extent of such conflict.
ADOPTED AND APPROVED this 14th day of October, 2003.
TOWN OF AVON, COLORADO
[SEAL]
By:
Mayor
Attest:
Town Clerk
The motion to adopt the foregoing Resolution was duly seconded by Council
Member , put to a vote and carried upon the following vote:
Those voting YES:
Those voting NO:
Those absent:
Thereupon the Mayor declared the motion had carried and the Resolution duly
passed and adopted. After consideration of other business to come before the Council, the
meeting was adjourned.
[SEAL]
Mayor
Attest:
Town Clerk
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
I, , the duly appointed, qualified and acting Town Clerk of
the Town of Avon, Colorado, do hereby certify that the foregoing pages numbered 1 through ,
inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of
Avon, Colorado, adopted at a special meeting of the Council held at the regular meeting place
thereof in Avon, Colorado, on Tuesday, the 14th day of October, 2003, commencing at the hour
of - in., as recorded in the official Record of the Proceedings of the Town kept in my
office, insofar as said proceedings relate to the Resolution contained therein; that said
proceedings were duly had and taken; that the meeting was duly held; and that the persons were
present at said meeting as therein shown.
WITNESS my hand and seal as of this day of , 2003.
[SEAL]
Town Clerk
Town of Avon, Colorado
CERTIFIED RECORD OF PROCEEDINGS
OF THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO
APPROVING THE ISSUANCE OF
MULTIFAMILY HOUSING PROJECT REFUNDING REVENUE BONDS,
SERIES 2003
BY THE EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in special session at the
Town Hall in Avon, Colorado, on Tuesday, the 14th day of October, 2003, at the hour of
m.
The following members of the Council were present:
The following members were absent:
The following persons were also present:
Thereupon, Council Member introduced and moved the
adoption of the following Resolution, which was read by title, copies thereof having been made
available to the Council and the public prior thereto:
VON
C O L O R A D O
Tom of Awn
P.O. Bcoc 975
4W Bffxhnwk Road
Awn, Colaacb8162D
970-74811005
Office of the Town Manager
To: Honorable Mayor and Town Council
Fr: Larry Brooks, Town Manager
Dt: October 9, 2003
Re: Refunding Revenue Bonds for Kayak Crossing
In 1998 the Town of Avon sponsored conduit debt for the affordable housing project known
as Kayak Crossing. This debt does not create a financial obligation of the Town, but rather
the sponsorship of this issue allows the Housing Corporation preferred financial
consideration in the market.
The attached funding resolution will allow the Housing Corporation to issue project refunding
revenue bonds to replace the 1998 issue referenced above. This refunding issue is
requested on the same conduit basis as the 1998 issue and allows the Housing Corporation
the opportunity to take advantage of current market conditions for the benefit of the project.
The Town's bond council on this issue is Calvin Hanson, who will be at the meeting to
answer any of the council's questions. We also anticipate that the applicant's council from
the firm Hogan and Hartson will be present to explain their position. Pending the final
approval from Calvin Hanson regarding the Amended and Restated Trust Indenture, it is
recommended that the Town approve the refunding resolution.
TOWN OF AVON, COLORADO
RESOLUTION NO. 03-40
SERIES OF 2003
RESOLUTION APPROVING THE ISSUANCE BY
EAGLEBEND DOWD AFFORDABLE HOUSING
CORPORATION OF MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BONDS, SERIES 2003, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$9,800,000; AND AUTHORIZING INCIDENTAL ACTION.
WHEREAS, EagleBend Dowd Affordable Housing Corporation (the
"Corporation") has been duly organized under the provisions of Colorado law governing
nonprofit corporations, for the purpose of acquiring interests in real property and to construct,
install and operate certain improvements in or near the Town of Avon (the "Town"); and
WHEREAS, the Corporation has previously entered into a Trust Indenture dated
as of July 1, 1998 (the "1998 Indenture") and has issued its Multifamily Housing Project
Revenue Bonds, Series 1998A in an aggregate principal amount of $9,500,000 (the "Series
1998A Bonds"), its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998B in
an aggregate principal amount of $600,000 (the "Subordinate Series 1998B Bonds"), and its
Multifamily Housing Project Subordinate Revenue Bonds, Series 1998C in an aggregate
principal amount of $1,000,000 (the "Subordinate Series 1998C Bonds" and, together with the
Series 1998A Bonds and the Subordinate Series 1998B Bonds, the "Series 1998 Bonds") to
acquire and construct real and personal property, buildings and improvements, to provide
dwelling accommodations at rentals within the means of individuals or families of low or
moderate income (the "Project"), known as "Kayak Crossing" on a site of approximately 4.73
acres in unincorporated Eagle County, Colorado, near the Town; and
WHEREAS, in order to assure that responsibility for operation of the Project is
vested in the Corporation, the Town and the Corporation have previously executed and delivered
a Project Agreement dated as of July 1, 1998 (the "Project Agreement"), under the terms of
which the Corporation is responsible to operate the Project, and title to the Project shall vest in
the Town upon the end of the term of the Project Agreement; and
WHEREAS, the Corporation now desires to provide for a partial refinancing of the
Project and refunding of the Series 1998A Bonds and, in order to provide funds therefor, the
Corporation intends to amend and restate the 1998 Indenture by entering into an Amended and
Restated Trust Indenture dated as of October 1, 2003 (the "2003 Indenture) with U.S. Bank
National Association, as Trustee, and intends to issue pursuant to such 2003 Indenture its
Multifamily Housing Project Refunding Revenue Bonds, Series 2003A, in an aggregate principal
amount not to exceed $9,800,000 (collectively, the "Series 2003 Bonds"); and
WHEREAS, a proposed form of the 2003 Indenture (including the forms of the
Series 2003 Bonds contained therein) has been presented before the Town Council (the
"Council") at this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, AS FOLLOWS:
1. Approval of Modifications to and Amendment of 1998 Indenture. In
accordance with the terms of the Project Agreement, the Town hereby approves and consents to
the amendment and modification of the 1998 Indenture as provided in the 2003 Indenture.
2. Issuance of the Series 2003 Bonds. The Series 2003 Bonds and the
issuance thereof by the Corporation for the purpose of refinancing a portion of the Project by
refunding the Series 1998A Bonds are, in all respects, hereby approved. The Series 2003 Bonds
shall be issued solely as fully registered bonds without coupons in the denominations as provided
in the 2003 Indenture. The Series 2003 Bonds shall bear interest payable at the rates and times
and will mature in the amounts and on the dates set forth in the 2003 Indenture, as finally
executed.
The Series 2003 Bonds shall be issued and secured as set forth in the 2003
Indenture, and the forms, terms and provisions of the Series 2003 Bonds and the provisions for
their execution, authentication, payment, registration, transfer, exchange, redemption and number
shall be as set forth in the 2003 Indenture.
The Town hereby designates the Series 2003 Bonds as "qualified tax-exempt
obligations" pursuant to Section 265(b) (3) of the Internal Revenue Code of 1986, as
amended, and represents that the reasonably anticipated amount of tax-exempt obligations (other
than private activity bonds) which will be issued by the Town during the calendar
year 2003, including obligations issued by subordinate entities of the Town and by entities
issuing obligations on behalf of the Town, does not exceed $10,000,000.
3. Town Action. The Mayor of the Town and the Town Clerk are hereby
authorized and directed to execute and deliver such documents and to take all action necessary or
reasonably required to carry out, give effect to and consummate the transactions contemplated
hereby and thereby.
4. No Indebtedness of the Town. No provision of this Resolution or of
the Project Agreement, the 2003 Indenture, the Series 2003 Bonds or any other instrument
executed in connection therewith, shall be construed as creating an obligation on the part
of the Town to pay the principal of, premium, if any, or interest on the Series 2003 Bonds,
nor as creating an indebtedness or financial obligation on the part of the Town within the
provisions or limitations of any statutory or constitutional provision of the laws of the State
of Colorado or any provision of the home rule charter of the Town.
5. Title to Project. The Town hereby determines that it will accept title to the
Project, including any additions thereto, when all the Bonds (as defined in the 2003 Indenture)
are fully paid and discharged.
6. Severability. If any provision of this Resolution should be held invalid,
the invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provisions hereof are severable.
7. Other Actions. The appropriate officers of the Town are hereby authorized
to execute and deliver for and on behalf of the Town, any or all additional certificates, documents
and other papers and to perform all other acts they may deem necessary or appropriate in order to
implement and carry out the matters authorized in this Resolution and in any resolution of the
Corporation.
8. Effective Date; Repealer. This Resolution shall take effect immediately
upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in conflict
with this Resolution are hereby repealed or modified to the extent of such conflict.
ADOPTED AND APPROVED this 14th day of October, 2003.
TOWN OF AVON, COLORADO
[SEAL]
By:
Mayor
Attest:
Town Clerk
The motion to adopt the foregoing Resolution was duly seconded by Council
Member , put to a vote and carried upon the following vote:
Those voting YES:
Those voting NO:
Those absent:
Thereupon the Mayor declared the motion had carried and the Resolution duly
passed and adopted. After consideration of other business to come before the Council, the
meeting was adjourned.
[SEAL]
Mayor
Attest:
Town Clerk
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
I, , the duly appointed, qualified and acting Town Clerk of
the Town of Avon, Colorado, do hereby certify that the foregoing pages numbered 1 through _,
inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of
Avon, Colorado, adopted at a special meeting of the Council held at the regular meeting place
thereof in Avon, Colorado, on Tuesday, the 14th day of October, 2003, commencing at the hour
of _.m., as recorded in the official Record of the Proceedings of the Town kept in my
office, insofar as said proceedings relate to the Resolution contained therein; that said
proceedings were duly had and taken; that the meeting was duly held; and that the persons were
present at said meeting as therein shown.
WITNESS my hand and seal as of this day of , 2003.
[SEAL]
Town Clerk
Town of Avon, Colorado
CERTIFIED RECORD OF PROCEEDINGS
OF THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO
APPROVING THE ISSUANCE OF
MULTIFAMILY HOUSING PROJECT REFUNDING REVENUE BONDS,
SERIES 2003
BY THE EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in special session at the
Town Hall in Avon, Colorado, on Tuesday, the 14th day of October, 2003, at the hour of
m.
The following members of the Council were present:
The following members were absent:
The following persons were also present:
Thereupon, Council Member introduced and moved the
adoption of the following Resolution, which was read by title, copies thereof having been made
available to the Council and the public prior thereto:
Memo
To: Honorable Mayor and Town Council
From: Patty McKenny, Town Clerk
CC: Larry Brooks, Dept. Heads, John Dunn
Date: October 9, 2003
Re: NWCCOG Information
Summary:
Brian asked me to forward the following materials from NWCCOG:
? Minutes of NWCCOG meeting on 9/25/03
? Memo from Gary Severson regarding "Direction for 2004"
? Information on the U.S. Census Numbers for our region
Northwest Colorado Council of Governments
Council Meeting Synopsis and Update
Meeting held in Grand Lake on Thursday, September 25"'
This is a summary of the COG meeting in Grand Lake.
1. Municipal and Host County Updates:
Grandby:
• Activity has calmed after massive annexations although there are several more
on the horizon - Horn Ranch, etc.
• Horn Ranch is a large (2,000 acre) annexation consisting of very low-density
homes combined with massive retailing. There is a new grocery store (king
Soopers?) going in opposite the entry to Sol Vista (formerly known as Silver
Creek)
• Sales tax is up 5% total for the year
• The town is optimistic although unsure of the impacts this new development
will cause and, therefore, if these impacts have been mitigated.
Grand Lake:
• Sales Tax is up 3% total for the year
• There is some speculation this is due to greener summer, proximity to Denver
and lack of fires.
• Grand Lake has switched away from Mag Chloride for dust control (I didn't
get the name of the product they switched to, but could contact them if anyone
wishes to know).
• They are getting their first bank in town in many years.
• They are trying to fund a clinic in town, maybe part time.
• The pre-school closed its doors and left the town, but the church is looking for
a way to step in and help.
• Beetle kill has come to Grand Lake. Mostly on private land so education has
become a major priority for the town.
Hot Sulphur Sprius:
• Phase I of their river bank stabilization and fishery project is nearly complete.
Phase II is far more extensive and will actually move the river channel away
from a bridge it now threatens.
• They are funding a replacement of their sewer treatment plant with outside
fund help. Next year they look to upgrade their water treatment plan to
provide 20 hours of storage. They currently have only 3 hours of storage.
NWCCOG Council Meeting Report
September 25, 2003
They have undertaken a study of alternative dust control products (alternate to
mag cl.). They are experimenting with a product called soil-sement that
seems promising (and may have some application use at the Village at
Avon?). This product actually binds the soil particles together to make a very
hard and durable surface without making it slimy like mag chloride. Also
does not run off into the water table, but can be regarded if necessary and
doesn't change the appearance of the road (important to HSS to keep rural
look). The company website is www.midwestind.com
Kremmlin g:
• Sales tax are down 9.2%
• Are installing 46 new decorative street lights
• Looking at upgrading and relocating the hospital, but undecided what to do
with the existing structure.
Winter Park:
• Intrawest is in town redeveloping the base of the ski area. Town is trying to
understand the impacts and get ahead of the developer by updating the master
plan.
• They have not been shown the entire extent of the project and so are not sure
of all of the issues. Intrawest has a draft of changes they would like to the
PUD.
• They had a busy summer and fall with many building permits issues since
Intrawest was announced as winner of redevelopment. Many projects are now
back in play after lying dormant.
• The town divorced from ASW on an affordable (attainable) housing project in
town. The town wanted affordable single family and duplex units and ASW
was only proposing duplex and 4-plex. Back to square one. (ASW is same
partner in the Avon open space land swap with VA).
II Directors Report and Other News-
The Executive Committee has directed NWCCOG to organize a session on Initiative
32 (repeal a portion of the Gallagher amendment) that will occur at the meeting in
Frisco on October 23rd
Sub-Alpine Fir Decline (different for the pine beetle problem) has been identified (not
clear by whom) as the biggest threat to the natural resources of Colorado. Tom Stone
is evidently on a committee investigating this.
A summary of other current initiatives is attached. The COG is looking to fund a
regional GIS service center and has invested over $140,000 in grant dollars
developing this capability. It is my opinion that the Town of Avon should investigate
how this could support our own GIS initiative.
Page 2 of 3
NWCCOG Council Meeting Report
September 25, 2003
III NWCCOG applied and was awarded a grant from the Governors office on Smart
Growth to study the effects of 2„d homes on the Rural Resort Region. Vail served as
the applicant because non-profits can not apply for grants, but 5 counties (including
Eagle) joined in the study.
The results of this study are fascinating and very enlightening. Many of the
assumptions we all probably have are born out, but some are not and some of the
statistics are surprising. The preliminary findings and the power point presentation
are available on the NWCCOG website (http://www.nwc.cog.co.us/)
I have attached a copy of the survey that was distributed along with a lot of back up
informative pieces about the impact (both good and bad) of second homes and studies
showing how this trend is increasing. Second homes in Avon, Beaver Creek, Vail,
Cordillera, etc. have a growing impact on our regional economy. This report begins
to shed light quantitatively on what those impacts are. This is another piece in the
puzzle, which, along with our cost to deliver services study, will help us understand
the cost and benefits of government.
Please visit the website to learn more. If enough people are interested in this topic,
we can ask that GOG give us a presentation on this information.
Please let me know if there are any topics you wish further information or
clarification on and/or if there is a topic of discussion you wish me to bring up with
the COG.
Paize 3 of 3
Nor ik rado
COUNCIL OF GOVERNMENTS
To: NWCCOG Executive Committee, Council & RRR Directors
From: Gary Severson
Date: 09/17/03
CC: NWCCOG Staff
Re: Direction for 2004
The annual NWCCOG Strategic Planning Retreat was conducted on August 28, 2003 at the Mountain Chalet
in Aspen. The agenda and objectives for the meeting are attached. In attendance were:
• Patti Clapper, NWCCOG Chair, Pitkin County
• Bob Anderson, NWCCOG Vice-chair and RRR Director, Grand County
• Bill Wallace, NWCCOG Executive Committee and RRR Director, Summit County
• Tom Stone, NWCCOG Executive Committee, RRR Director, and QQ Executive Committee, Eagle
County
• Jeff Shroll, NWCCOG Executive Committee, Town of Gypsum
• Ted Wang, NWCCOG Executive Committee and QQ Executive Committee, Town of Granby
• Dick Cleveland, NWCCOG Executive Committee, Town of Vail
• Dirk Ramsey, NWCCOG Executive Committee, Town of Walden
• Mick Ireland, RRR Director, Pitkin County
• Chet Gaede, RRR Chair, City of Leadville
• Gary Severson, NWCCOG
• Linda Venturoni, NWCCOG
• Liz Finn, NWCCOG
• Steve Getz, NWCCOG
• Jean Brilev, NWCCOG
• Rick Payne, NWCCOG
Guests
• Helen Klanderud, Mayor, City of Aspen
• Torre, Council member, City of Aspen
Following the NWCCOG business meeting, the Fourth Annual Strategic Planning Meeting began. Gary
Severson stated that the objective for the session was to establish direction for NWCCOG for the next year by
considering four sources of information:
1. Review of all N WCCOG programs.
2. Review of all NWCCOG initiatives
3. Review and evaluation of 2003 direction
4. Review of 2003 NWCCOG Member Needs Survey
Following the reviews the NWCCOG Executive Committee gave the following direction for 2004:
Associate Memberships in NWCCOG
- 6 -
Situation: From time-to-time NWCCOG receives inquiries from non-Region 12 jurisdictions
regarding membership in NWCCOG. In the past the following jurisdictions have requested
information: Town of Carbondale, Lake County, Park County, Clear Creek County, and the
City of Leadville.
Question: Should NWCCOG develop and offer Associate Memberships in NWCCOG? What
would NWCCOG associate membership give the jurisdictions since many of them have or
are receiving NWCCOG services? How do we protect value in NWCCOG membership among
region 12 jurisdictions? Is Rural Resort Region the vehicle to involve non-region 12
jurisdictions?
Direction: Survey membership and interested non-members and develop proposal for
consideration by Council. Contact the Town of Blue River about re joining NWCCOG. Bill
Wallace will accompany.
Regional GIS Service Center
Situation: NWCCOG has invested over $140,000 in grants dollars developing regional GIS capability. A
feasibility study commissioned by NWCCOG indicates that a regional GIS Service Center managed by
NWCCOG could be sustainable. The 2003 NWCCOG Member Needs Survey indicates there is sufficient
interest among members to receive services. A business plan for a Regional Service Center has been
developed. The grants are nearly completed and for Regional GIS to continue, the program must become
economically sustainable.
uestion: Should NWCCOG continue the development of Regional GIS Service Center?
Direction: Present the GIS proposal to the NWCCOG jurisdictions during the month of September to
determine level of commitment. Based on the response of the member jurisdictions, present a proposal at the
September 25, 2003 NWCCOG Council Meeting for action. If there is sufficient commitment from member
jurisdictions, the NWCCOG Executive Committee will be requested to release $9,000 from the unreserved
fund to subsidize the start-up of the service.
Large Diameter Wood Grinder
Situation: NWCCOG has been actively involved in wildfire mitigation efforts within the region. A grant has
been awarded to conduct a feasibility study regarding the conversion of public building HVAC systems from
fossil fuels to bio fuels. In addition, NWCCOG applied for a grant to develop a business plan for cost sharing
the acquisition, operations and maintenance of wood processing equipment to manage the wood residues
resulting from forest thinning projects.
Question: IfNWCCOG is successful in being awarded the g-rant to develop a business plan, should a steering
committee made up of representatives of member jurisdiction?
Direction: IfNWCCOG is awarded the grant a steering committee should assembled. In addition, the
business plan should be tied to forest health projects in insect infested stands as well as wildfire mitigation
efforts. The William's Fork drainage in Grand County and the Vail Valley in Eagle County need special
consideration.
Legislative Involvement in Biomass Utilization
Situation: In the 2003 Legislative Session a bill was introduced that would require electrical generators in
Colorado to begin burning biomass as fuel in increasing amounts over the next decades. NWCCOG
supported the concept of the bill as a way of developing markets for woody residues from wildfire mitigation
- 7 -
and forest health projects. NWCCOG did not support the definition of biomass, but was working with the
bill's sponsors to modify the defmition. The bill passed the House but died in the Senate.
Question: Should NWCCOG work with legislators to introduce a bill in 2004 that would provide economic
incentives for the utilization of biomass energy?
Direction: NWCCOG should explore the possibility of having a biomass energy bill introduced, but if
introduced should rely on its elected officials on the Council to provide support.
NWCCOG Involvement in Transportation Planning
Situation: NWCCOG is one of the few regional councils not actively involved in transportation planning.
NWCCOG is currently conducting meetings with elected officials in jurisdictions on the Western Slope of
less than 5,000 population. CDOT has expressed curiosity as to why NWCCOG is not actively involved and
the 2003 NWCCOG member needs survey indicates that transportation is one of the top three needs of
jurisdictions.
uestion: Should NWCCOG become more involved in transportation planning and if so, in what ways
should the involvement occur?
Direction: NWCCOG should play a more active role, but staff should not be involved with attending
numerous CDOT meetings, nor should NWCCOG be in a position of advocating for one member over
another for scarce transportation dollars. NWCCOG should be a clearinghouse for information concerning
CDOT planning processes and should make certain that elected officials of all of the member jurisdictions are
aware of important events in those processes. NWCCOG should remain actively involved in the I-70
Programmatic EIS, seeking accountability from CDOT on the utilization ofNWCCOG demographic data.
TABOR and Gallagher
Situation: The combination of TABOR and the Gallagher Amendment produce hardships on local
governments spending and revenue generation. Amendment 32 is a measure on the 2003 Colorado general
election ballot. Amendment 32 if passed would increase the current percentage from 7.96% of assessed
residential values to 8% and would repeal the process for reducing the percentage in the future. Amendment
32 is aimed at the Gallagher Amendment. The ballot measure has been termed a "sleeper" because not too
many people, including elected officials are aware of it.
uestion: Should NWCCOG become involved in TABOR, Gallagher, or Amendment 32?
Direction: NWCCOG should not take the initiative on statewide issues. That is a role filled better by
statewide organizations such as CIVIL and CCI. However, information exchange among member jurisdictions
on issues is an important role for NWCCOG. NWCCOG should host an information session on Amendment
32 in October prior to the November 2003 general election. NWCCOG may want to work in conjunction
with CIVIL and/or CCI.
NWCCOG Weatherization Program
Situation: The Colorado Low-income Energy Assistance Program (LEAP) may require that Weatherization
agencies, including NWCCOG respond to emergency service calls received by the state LEAP office. In the
past these call have been forwarded to private sector contractors for response. However, LEAP would like to
begin utilizing Weatherization agencies for this purpose.
uestion: Should NWCCOG agree to the arrangement with Colorado LEAP and run the risk of competing
with private sector contractors?
8-
Direction: NWCCOG Weatherization should agree to the new arrangement with Colorado LEAP, being
sensitive to private contractors and sub-contracting with them to the extent possible to perform the work.
However, if the private sector is not a possibility then NWCCOG should respond to the service call.
Conclusion
The NWCCOG Executive Committee is pleased with the performance of staff in addressing the overall
mission of NWCCOG as expressed in New Direction 2000 and the specific direction given for 2003. The
ability of NWCCOG to perform at increasingly higher levels is a direct result of a highly professional
motivated staff and the development of "depth" within the organization that eliminates the vulnerable position
of being dependent on any one individual. It is also the direct result of an Executive Committee and a
Council that provides vision and adequate direction without micromanaging the organization or individual
programs.
The one concern expressed by the Executive Committee is the increasing workload on staff. A priority of the
Executive Director in 2004 will be to closely monitor staff workloads, striving to increase productivity and
quality without risking overload, burnout and attrition.
- g -
1???rado
COUNCIL OF GOVERNMENT
P.O. Box 2308 - 249 Warren Ave. • Silverhorne. CO 80498 • 970-468-0295 • Fax: 970-468-1208 • www.nwc.ccg.co.us
September 16, 2003
The U. S. Census Bureau
MEMBER Count Question Resolution Program
JURISDICTIONS Decennial Management Division, Room 2002/SFC-2
4700 Silver Hill Road, Stop 7100
EAGLE COUNTY
Avon Washington, D. C. 20233-7100
Basalt
Eagle Dear CQR Program Manager:
Gypsum
Mlntu`n Enclosed is our challenge to the 2000 census results for 154 blocks in the four counties of
Red Cliff
Vail
Eagle, Grand, Pitkin and Summit in Colorado. The challenge is the result of a large
GRAND COUNTY amount of work conducted by several of our staff and of the assessors' offices and others
Fraser of our member counties. Some of the work was funded by a grant provided by the
Granby Colorado Department of Local Affairs (DOLA). Technical assistance was provided by the
Grand Lake
l
i
S
h
S
H Colorado Demography Section (CDS) within DOLA and by Ken Ellwanger of the U. S
p
ur
pr
ngs
ot
u
Kremmling .
Bureau of the Census, on loan to CDS to help in this review of census results.
Winter Park
JACKSON COUNTY _ The attached findings are the result of an extensive process in which the 2000 census
Walden housing unit counts were compared with the countys' assessor records. Where there was
PMUN COUNTY
A a discrepancy of over 30 units, the blocks were selected for review and possible
spen
SUMMrT COUNTY
challenge. A listing of the housing units in the block was then prepared from the assessor
Breckenridge files and verified and, if necessary, modified from a field survey.
Dillon
Fri5CC The work included several months of reconciling TIGER file blocks, i.e., block faces, with
Montezuma
ontezuma local, more accurate positioning of these lines. It also included a review of all addresses
M
Silverthorne
the assessors' data bases to insure that they could be related to census geography. The
field review and listing also took several months because there were a number of the very
large blocks spanning several miles of mountainous terrain and because there were a
large number of units -- hundreds -- in many of the blocks.
The member governments of our region have felt that fcr the last four decades the
populations cf their jurisdictions have been significantly undercounted. For the last
census, the Denver Regional Office of the U. S. Bureau of the Census committed itself to
doing a better job, and, actually, we believe the 2000 census was more accurate than the
those of the previous three decades. Even so, our people were aware of staff and
administrative problems related to the census and were uncertain about many of the
resulting counts.
The major finding of our work is that census staff - in both the address listing process
and in the enumeration process itself - treated large sets of townhouses or condominiums
as hotels or group quarters. Because these structures were treated this way, the units
and the occasional households there-in were never listed and counted, respectively. This
failure to include these people has important consequences for political representation by
_22-
the counties and within the counties, federal and state fund allocations, and adequate
planning. Failure to include housing units alone affects planning and emergency service
allocations related to second homes.
Other findings of missed housing units and related populations are not as large but,
nonetheless, significant in a number of cases. Several major sections of mobile home
parks were missed where there were high occupancy rates and large numbers of persons
per household. In addition, other smaller groups of units were overlooked by the process
or because of the nature of the situation. Keep in mind that we have limited our work and
challenge to only those blocks where we found the census error to be more than 30 units.
We trust that you will give this challenge the most serious consideration as the numbers of
missed units are very large. Obviously, correcting them is more important to our funding
and planning efforts during this coming decade. Further, we hope that your addressing
and correcting these problems may some day lead to a reasonably successful censuses
in future decades.
Thank you for your consideration.
Sinc el ,
a Sev rson
ecutive Director
23-
`STATE OF COLORADO
DEPARTMENT OF LOCAL AFFAIRS
1313 Sherman Street, Suite 521
Denver, Colorado 80203
Phone: (303) 866-2771
FAX: (303) 866-4819
TDD: (303) 866-5300
September 8, 2003
The U. S. Census Bureau
Count Question Resolution Program
Decennial Management Division, Room 2002/SFC-2
4700 Silver Hill Road, Stop 7100
Washington, D. C. 20233-7100
Dear CQR Program Manager:
1876
Bill Owens
Governor
Michael L. Beasley
Executive Director
I am writing this letter in support of the Northwest Colorado Council of Government's
(NWCCOG) request for a Count Question Resolution of over 150 blocks in four counties of their
region. I believe this request deserves the most serious consideration because of the size and
number of possible errors, because of a sense by local officials of serious error in three previous
censuses in these counties, and because the Census Bureau itself has been very aware of difficulties
in these areas, but, as this work shows, they have yet to be overcome all of them.
The work of the NWCCOG focused on the number of missed housing units in the 2000 Census.
Their work essentially involved comparing the 2000 Census count of housing units with those
listed by the county assessors. After comparing the listed numbers in the two data bases, they then
followed up this analysis with a field survey of those blocks with a difference of 30 units or more.
Ken Ellwanger of the U. S. Bureau of the Census, as well as myself, participated in much of the
field work. Ken was on leave from the Bureau and on assignment to our office to review such
challenges.
Limiting the review, in most cases, to just those blocks with a prospective undercount of 30
housing units or more, the NWCCOG found 1 54 blocks with this large an error or more. Twenty
blocks were undercounted by over 100 units. In the 1 54 blocks, nearly 8,600 housing were missed
in the census! As most of these were second homes, they estimate only 2,000 people were missed,
but this is not an insignificant number either. More importantly, however, the missed housing
units have major implications for planning and emergency management funding allocations in
these counties. Finally, they reflect fundamental problems in the infrastructure - the TIGER file
and the Master Address File (the mapping of housing units) -- that was used to conduct the census
in these counties.
24-
Many have said that the best census work in the nation was done in our state. Our staff, having
monitored many of these operations, believe this is true both because we had wonderful coopera-
tion and responsiveness from the Denver Regional Office in the conduct of the 2000 census and
because we know that they worked hard and overcame many problems in our hard-to-enumerate
areas. These four resort counties were flagged early by them as problem areas and, I know, special
efforts were made to overcome the difficulties; yet obviously a number of them remained.
There are several major problems for conducting a census in these areas. First, the terrain poses
great difficulties for mapping and for just getting around. The streets of subdivisions curve over
hills and mountains making it, among over things, impossible to know or sense where block
boundaries begin or end. (This is, in contrast, to our Eastern Plains, where all roads follow
township and section lines.) Second, mapping and developing administrative records of housing
units has been very expensive and difficult for these rural governments. It is only until recently that
they themselves have developed the information base that could have been helpful to the census.
In many areas, roads are not properly or uniquely named and the addresses of housing units or
parcels are incomplete. Third, much of the population - especially, ski and resort-related workers
- vacation or change residents in late April and May when census follow-up operations occur.
However, by far, the greatest difficulty in these areas has been finding local people available for
hire to assist in the conduct of census operations. Efforts are made to recruit people within the
counties, and when they are not fully successful then later efforts are made to bring in workers
from outside the county. These outside workers do the job required but lack local knowledge and
are more expensive, requiring transportation and/or overnight stay. My guess is that because the
resident population numbers are relatively low here that census priorities understandably go with
vrhere there are people that need to be counted rather than second homes that have low occupancy
rates. These second homes -- townhouses and condominiums -- are quite numerous, making the
address listing quite tedious, and performing these operations may require special training, e.g., to
distinguish between what is a hotel and hence, a group quarter, and what is a resident and what is a
second-home occupant.
Overcoming these problems, therefore, has not been and will not be easy. However, I feel that the
NWCCOGs work in reviewing the census has provided a very significant understanding of the
problems and set the stage for substantive and targeted improvements in future census operations -
including the American Community Survey - in these areas. I trust. therefore, that the Bureau will
give this CQR its most serious attention and will work with the NWCCOG and their local
communities in resolving these problems.
Sincerely.
lieu Westkott. Director
Colorado Demography Section
- 2 5 -
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Ruth Borne - Community Development Director
Tambi Katieb - Community Development
Date October 10, 2003
Re: Lighting Ordinance Discussion
Summary
In response to the recent discussion regarding more restrictive lighting controls in the Town,
staff is making the following recommendations as to how to proceed with this issue prior to
adoption of any new regulations.
Staff will conduct initial research into a variety of regulatory controls that may more
effectively mitigate and/or avoid any potential light pollution within the Town. Examples of
these measures may include:
¦ Requiring a lighting plan based on the type of development being proposed. The
content of this plan would be regulated based on the intensity of the development
(i.e. single family home vs. commercial development).
¦ Requiring all businesses to turn off unessential light fixtures until one hour prior to
operating hours and one hour after operating hours.
¦ Limiting residential light sources based on lot size (i.e. only so many fixtures based
on the total square footage of the lot).
¦ Phasing out of all non-conforming light fixtures (non-shielded fixtures) within a fixed
time period.
¦ Creating a maximum total lumen (lighting output) per square foot (or acre) by
different `lighting zones'. Zones could be segregated by land use (residential and
commercial zones) so different lighting needs could be adequately addressed.
While there are many good examples of effective lighting control regulations from different
municipalities and advocacy organizations (i.e. Aspen, Flagstaff, Dark Sky, etc.), the
effectiveness of any program is based on the ability to adequately implement, monitor and
enforce the controls.
Memo to Town Council, October 14, 2003 Page 1 of 2
Re: Lighting Ordinance Discussion
Staff is recommending that this discussion take place at the Planning & Zoning Commission
in order to facilitate public input inherent in their process. Recommendations and review of
existing community restrictions will be reviewed at several Planning & Zoning Commission
meetings.
The Commission will draft a set of recommendations, based on Council direction and input,
and forward these recommendations to Council for adoption as a new Lighting Ordinance.
In order to kick off this process, we have scheduled a joint meeting of the Planning and
Zoning Commission and Council for October 28 to discuss the concerns regarding lighting
control in the Town of Avon.
Additionally, staff recommends that any proposed lighting regulations b e a dopted i n t he
form of an ordinance, which may then be applied to all Town properties and residents
(including the Village at Avon).
Councilor Sipes has requested that we include the attachment in order to provide some
context to the upcoming process.
Town Manager Comments:
I
Attachments:
Town of Eagle Lighting Standards
Memo to Town Council, October 14, 2003 Page 2 of 2
Re: Lighting Ordinance Discussion
4.07.005 LIGHTING STANDARDS
A. Objectives
The objectives of this Section are as follows:
1. Provide quality, context-sensitive lighting for the Town of Eagle
mountain environment; and
2. Sustain a pristine nighttime sky by controlling glare, light trespass and
light pollution; and
3. To provide for zero tolerance of light pollution and light trespass beyond
property lines within and into residential areas; and
4. To minimize light pollution and light trespass beyond property lines
within and into commercial and industrial areas; and
5. To require proper shielding to eliminate glare at normal viewing angles
from all high brightness sources; and
6. In facade, sign and retail applications, use lighting to create visual
hierarchy, which facilitates circulation and way finding.
B. Applicability
Except as provided herein, the provisions of this Section shall apply to
all subdivisions, planned unit developments, development permits, sign
permits, and building permits finally approved on or after the effective
date of this Section.
All lighting fixtures, devices, equipment, lamp sources and wattage,
fixture locations, and shielding installed after the effective date of this
Section shall comply with the requirements and standards of this Section.
All lighting fixtures, devices, equipment, lamp sources and wattage,
fixture locations, and shielding presently in use and existing as of the
effective date of this Section, and not in confonnance with the
requirements and standards of this Section, shall be considered a legal
non-conforming use and may continue in existence subject to the
provisions of the following subsection.
C. Abatement of Legal Non-Conforming Uses
All lighting fixtures, devices, equipment, lamp sources and wattage, fixture
locations and shielding not in conformance with the requirements and standards of
this Section, and existing and in use as of the effective date of this Section, shall
be subject to the following, notwithstanding any other provision of this Title to the
contrary:
Chapter 4.07
4.07.005
A legal non-conforming lighting use shall not be changed to any other
use excepit a lighting use conforming with the requirements and standards
of this Section.
Whenever a legal non-conforming lighting uses has been discontinued
for a continuous ;period of one (1) year or longer, all lighting fixtures,
devices, equipment, lamp sources and wattage, as well as fixture
locations and shielding shall be in conformance with the requirements of
this Section.
3. All lighting fixtures, devices, equipment, lamp sources and
wattage, as well as fixture locations and shielding presently existing and
in use as of the effective date of this Section, and not in conformance
with the requirements and standards of this Section, shall be brought into
conformance with such requirements and standards no later than January
1, 2007.
4. The Board of Trustees, in its sole discretion, may institute a
mandatory program for the elimination of legal non-conforming lighting
fixtures, devices, equipment, lamp sources and wattage, as well as fixture
locations and shielding, prior to the date set forth above by providing
payments to property owners in accordance with adopted amortization
schedules for the conversion of legal non-conforming lighting to lighting
conforming with the requirements and standards of this Section.
D. Submittal Requirements
A lighting plan shall accompany all applications for development and
preliminary subdivision plans and shall be submitted separately from other
drawing information. The lighting plans and/or specifications shall show: the
type of lighting equipment, the lamp source and wattage, fixture locations,
mounting heights, shielding and all mounting details. Manufacturer catalog
and/or specification materials with scaled drawings or photographs are also
required for all lighting equipment. In addition, calculations shall be provided
which show point-by-point horizontal illuminance at ground level for all
commercial or industrial projects. Calculations for other project types shall be
provided at the Town of Eagle's request.
E. Prohibitions
1. All mercury vapor sources are outdated and are therefore prohibited.
Existing fixtures should be modified to accommodate more current
technologies such as metal halide orfluorescent lamp sources.
2. Any search light or laser light used for the purpose of advertising, or as a
beacon, is prohibited.
3. Blinking, tracing, or flashing lights are prohibited.
4. High Intensity Discharge (HID) floodlighting is prohibited.
Chapter 4.07
4.07.005
5. Fixtures with high brightness lamps and poor visual cutoff are prohibited.
6. Bollards or low-mounted luminaries (less than 12 feet above ground) are not
to exceed 35 watts.
7. Exterior neon sources such that the source can be directly viewed are
prohibited. Backlighted applications may be acceptable, and must conform
to the same restrictions as cabinet signs.
F. Exemptions
1. All lighting used for the purpose of aviation is exempted.
2. All temporary lighting used to identify hazards or roadway construction
(operating less than four months) is exempted.
3. All traffic signal lighting is exempted.
4. Low voltage, ornamental landscape lighting which meets Yard Lighting and
Lamp Shielding requirements is allowed.
5. Low-brightness, seasonal holiday lighting is allowed. Note that the National
Electric Code (Section 305-3) allows for temporary lighting installations for
up to 90 days.
6. High intensity discharge floodlighting may be used for sports lighting
applications (see Lamp Shielding Chart for restrictions).
7. Lighting for the purpose of security must meet the criteria of each application
category but may be exempted from specific control requirements.
G. GiOSSARY
_Cutoff Angle (of fixture) - The angle measured upward from the
vertical at which the bare source is completely blocked from view.
Discomfort Glare - Glare producing discomfort. It does not necessarily
interfere with visual performance or visibility.
Footcandle - The basic unit of illuminance (the amount of light falling
on a surface).
Full-Cutoff Fixture - A fixture that allows no emission of light above
horizontal.
Full Shielding - Refers to internal and/or external shields and louvers
provided to prevent brightness from lamps, reflectors, refractors and
lenses from causing glare at normal viewing angles.
Chapter 4.07
4.07.005
Glare - The sensation of annoyance, discomfort, or loss in visual
performance and visibility due to bright or uncontrolled light sources.
IESNA - Illuminating Engineering Society of North America, an
organization that establishes standards for the lighting industry.
Illuminance - A measure of the amount of light incident on a surface,
expressed in footcandles.
Light Trespass - Any form of artificial illumination emanating from a
light fixture or illuminated sign that penetrates another property.
Luminance - The apparent brightness of a light fixture or lamp as viewed
from a specific direction. The luminance of a fixture can vary as the
viewing angle varies.
Motion Sensor Device - A device that will sense motion electronically and
switch on security lighting for a brief duration.
Non-Cutoff Fixture - A fixture that includes no optics to prevent light
emission above horizontal.
Nuisance Glare - Glare that causes complaints.
Semi-Cutoff Fixture - A fixture that emits some light above horizontal, but
less than a non-cutoff fixture.
Timing Device - A switching device, a part of which is a clock, set to the
prevailing time, that will control the period of operation for outdoor
lighting fixtures and signs.
Chapter 4.07
4.07.005
LAMP SHIELDING AND SPECIAL APPLICATION CHARTS
Lamp Shielding Chart
Refer to this chart for shielding instructions for all exterior lighting applications.
Lam Wattage Incandescent Fluorescent H.I.D.
Less than 35 None None N/A
36-75 None None Low
76-100 Low Low Medium
101-150 Medium Medium Medium
151-250 Medium
251-500 Full
501-1000 Full
1001+ Full
Legend:
None • No Shielding (IESNA non-cutoff)
Low Low Shielding (IESNA semi-cutof
Medium o Medium Shielding (IESNA full-cutoff)
Full . Full Shielding (lamp shielded from view outside of property)
Full • Prohibited (see "Exemptions")
1. Requires a semi-cutoff fixture that emits sunlight above horizontal, but less than a
non-cutoff fixture. *
2. Requires a full cutoff fixture that allows no emission of light above horizontal.
3. Requires a fixture containing internal and/or external shields and louvers to provide
brightness from lamps, reflectors, refractors and lenses from causing glare at normal
viewing an les.
Commercial Light Level Criteria
Maximum initial illuminance values in these areas must not exceed the range specified by the
table. Values are taken from the IESNA's recommended illuminance values. Lower wattages
and mounting heights be implemented whenever possible.
Area/Criteria Fast Food / Gas Station / Automotive General Walkways &
Convenience Hotel Canopy Outdoor Retail Commercial Parkways
Maximum
Initial 1.5-3.0 20 - 30 20 - 30 1.5-3.0 0.2-1.0
Horizontal
Illuminance
(fc) Value at
Ground Level
Note: Lighting for Residential and Industrial areas is covered under specific application
categories in the ordinance.
Chapter 4.07
4.07.005
PARKING AREA LIGHTING
Maximum
Parking Area Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Lighting Parkin Lots are prohibited in Rural or Standard Residential areas.
Compact fluorescent - 42 W max.
Residential Multi-Family H.I.D. - 70 W max. 15 feet
Incandescent - 100 W max. Lights on dusk to
Compact fluorescent - 42 W max. dawn.
Residential Medium H.I.D. - 70 W max. 15 feet
Density Incandescent - 100 W max.
Compact fluorescent - (2)42 W max. Lights on dusk to
Public Area H.I.D. - 175 W max. dawn. 15 feet
Compact fluorescent - (2)42 W max.
Commercial Limited H.I.D. - 175 W max. Lights on until one 25 feet
Compact fluorescent - (2)42 W max. hour after closing or
Commercial General H.I.D. - 175 W max. servicing. 25 feet
Compact fluorescent - (2)42 W max.
Central Business District H.I.D. - 100 W max. 30 feet
Compact fluorescent - (2)42 W max. Lights on until one
Industrial H.I.D. - 175 W max. hour after closing 30 feet
Notes:
• Dusk-to-dawn operation is allowed for 24-hour business operations.
• Mounting height may be increased for medium and fully shielded fixtures upon the Town of
Eagle's approval.
The following table lists recommended minimum maintained average illuminance values and
maximum acceptable uniformity ratios.
General Parking & Pedestrian Areas Non-pedestrian Driveways
Parking Lot Activity Level (Vehicle Entries & Exits)
Footcandles Unifon-nity Ratio Footcandles Uniformity Ratio
(Av .:Min.) (Av .:Min.
High:
• Large shopping Malls 0.9 4:1 2 3:1
• High-volume fast food
Medium:
• Smaller shopping centers
• Office complexes
• Hotels & motels 0.6 4:1 1 3:1
• Hospitals
• Community events
• Condominiums
• Fast food
Low: (for security lighting)
• Neighborhood markets 0.2 4:1 0.5 4:1
• Industrial facilities
• School or churches
Chapter 4.07
4.07.005
YARD LIGHTING
Yard Lighting Acceptable Lamp Types & Maximum Controls Maximum
Allowable Wattages Mounting
Height
Residential Compact fluorescent - 32 W max.
Incandescent - 75 W max. 20 feet
Compact fluorescent - 32 W max. Lights on dusk
Residential Multi-Family Incandescent - 75 W max. to 11:00 PM. 15 feet
Compact fluorescent - 32 W max.
Residential Medium Density Incandescent - 75 W max. 15 feet
Compact fluorescent - (2)42 W max. Lights on dusk
Public .Area Metal halide - 70 W max. to dawn. 25 feet
Compact fluorescent - (2)42 W max.
Commercial Limited Metal halide - 70 W max. Lights on until 25 feet
Compact fluorescent - (2)42 W max. one hour after
Commercial General Metal halide - 70 W max. closing or 20 feet
Compact fluorescent - (2)42 W max. servicing.
Central Business District Metal halide - 100 W max. 25 feet
Industrial Compact fluorescent - (2)42 W max. Lights on dusk
H.I.D. - 175 W max. to 11:00 PM. 30 feet
Notes:
The use of motion detectors and timers is encouraged to control specific fixtures for security
and egress applications.
The use of porch lights and egress lighting is encouraged. Dusk-to-dawn operation is
allowed for these applications. Note that these fixtures must still meet the intent of the Lamp
Shielding Chart.
10 Chapter 4.07
4.07.005
FACADE LIGHTING
Maximum
Facade Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Fa ade Lighting is prohibited in Rural or Standard Residential areas.
Residential Multi-Family Fa ade Lighting is prohibited in Residential Multi-Familyareas.
Residential Medium Density Fa ade Lighting is prohibited in Residential Medium Density areas.
Compact fluorescent - 42 W max. Lights on
Public Area Linear fluorescent - 32 W max. dusk to
H.I.D. - 70 W max. dawn
Incandescent - 100 W max.
Compact fluorescent - 42 W max.
Commercial Limited Linear fluorescent - 32 W max. Lights on See
H.I.D. - 70 W max. until one below
Incandescent - 100 W max. hour after
Compact fluorescent - 42 W max. closing or
Commercial General Linear fluorescent - 32 W max. servicing
H.I.D. - 70 W max.
Compact fluorescent - 42 W max.
Central Business District Linear fluorescent - 32 W max.
H.I.D. - 70 W max.
Industrial Facade Lighting is prohibited in Industrial areas
Notes (Mounting of FaVade Lighting):
• In all facade lighting, the source wiH be fully shielded from pedestrians and motorists.
• Sources should not be visible from inside the lighted building or from surrounding buildings.
• Uplighting must be shielded and/or fall completely on the fagade.
• Downlighting of fagade elements is preferred.
I 1 Chapter 4.07
4.07.005
SIGN LIGHTING
Maximum
Sign Lighting Acceptable Lamp Types & Maximum Controls Mounting
Allowable Wattages Height
Residential Sion Lighting is prohibited in Rural or Standard Residential areas
Residential Multi-Tamil Sign Lighting is prohibited in Residential Multi-Family areas
Residential Medium Density Sign Lighting is prohibited in Residential Medium Density areas
Public Area Compact fluorescent - (2)42 W max. Sign lights on
Linear fluorescent - (2)32 W max. dusk to dawn
Incandescent - 100 W max.
Compact fluorescent - (2)42 W max.
Commercial Limited Linear fluorescent - (2)32 W max.
H.I.D. - 70 W max.
Incandescent - 150 W max. See
Compact fluorescent - (2)42 W max. Sign lights on notes below
Commercial General Linear fluorescent - (2)32 W max. until one hour
H.I.D. - 70 W max. after closing
Incandescent - 150 W max.
Compact fluorescent - (2)42 W max.
Central Business District* Linear fluorescent - (2)32 W max.
Incandescent - 100 W inax.
Compact fluorescent - (2)42 W max. Sign lights
Industrial Linear fluorescent - (2)32 W max. on until
H_I.D. - 70 W max. one hour
Incandescent - 150 W max. after closing
* Cabinet signs are prohibited in Central Business Districts.
General Notes:
• The word "sign" refers to any objet attached to or apart from a structure intended to convey
advertising, image, or identification. Note that the National Electric Code (Section 305-3) allows for
temporary lighting installations for up to 90 days.
• Each proprietor is limited to one illuminated sign per establishment.
• In all sign lighting, the source will be fully shielded from pedestrians and motorists.
• Sources should not be visible from inside the associated building or from surrounding buildings.
Externally Lighted Signs:
• Doxvnliglhting of signs is preferred.
• Uplighting must be shielded and/or fall completely on the sign.
Internally Lighted Signs:
• Cabinet signs, or signs with interior lighting, are to have fluorescent lamps and will not exceed 130
watts.
• The use of sources other than fluorescent for cabinet signs is subject to the approval of the Town of
Eagle.
12 Chapter 4.07
4.07.005
ROADWAY LIGHTING
Roadway Lighting Allowable Lamp Types & Maximum Maximum
Allowable Wattages Controls Mounting
Height
Residential* Compact fluorescent - (2)42 W max.
H.I.D. 100 W max. 20 feet
Residential Multi-Family* Compact fluorescent - 42 W max.
H.I.D. 100 W max. 20 feet
Residential Medium Density* Compact fluorescent - (2)42 W max. Lights on
H.I.D. 100 W max. dusk to 20 feet
Public Area Compact fluorescent - (2)42 W max. dawn
H.I.D. 175 W max. 25 feet
Compact fluorescent - (2)42 W max.
Commercial Limited** H.I.D. 175 W max. 30 feet
Compact fluorescent - (2)42 W max.
Commercial General** H.I.D. 175 W max. 30 feet
Compact fluorescent - (3)42 W max.
Central Business District** H.I.D. 175 W max. 30 feet
Compact fluorescent - (3)42 W max.
Industrial H.I.D. 175 W max. 30 feet
* House-side shields should be used in all residential areas (to prevent roadway lighting from trespassing
onto residential property).
** Mounting height may be extended to 40 feet for special cases such as large commercial developments
only upon the Town of Eagle's approval.
Amended 1/13/00
13 Chapter 4.07
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Ruth Borne - Community Development Director
Tambi Katieb - Community Developme
r
Date October 10, 2003
Re: Comprehensive Plan Update Draft Request For Proposals (RFP)
Summary
Staff is submitting a draft Request for Proposals (RFP) for update to the Town
Comprehensive Plan to Council for review prior to release.
This draft was reviewed and unanimously endorsed by the Planning & Zoning Commission
at their October 7, 2003 meeting.. We will also review and discuss this RFP and the update
to the Comprehensive Plan in detail at your joint work session with the Planning & Zoning
Commission on October 28, 2003.
Staff anticipates release of the RFP in late October to allow sufficient time before the
holiday season to get the selection process well underway.
Town Manager Comments:
Attachments:
• Comprehensive Plan Draft RFP
Memo to Town Council, October 14, 2003 Page 1 of 1
Re: Comprehensive Plan RFP Draft review
REQUEST FOR PROPOSALS
PROJECT: Town of Avon Comprehensive Plan Update
DATE: October XX, 2003
CLIENT: Town of Avon
c/o Tambi Katieb, Town Planner
P.O. Box 975
400 Benchmark Road
Avon, CO 81620
PART ONE: INFORMATION FOR PROPOSERS
1.01 SUBMISSION OF PROPOSAL
Proposals will be received at the Community Development Office of the Town of Avon
Attn: Tambi Katieb, Town Planner
PO Box 975
400 Benchmark Road
Avon, CO 81620
By 5:00 PM, MST, November 14, 2003
Any proposal not received at the Community Development Office prior to the time set in this
request shall be disqualified.
1.02 OPENING OF PROPOSALS AND SELECTION
oposals will be opened and evaluated by the Town after the final date set for receipt. T
iwn may require selected proposers considered for award to make oral presentation to t]
/on Town Council. The successful consultant will produce an updated Comprehensive
it the Town will adopt as a master plan document through a public hearing process. TT,
liverable to the Town will be a Comprehensive Plan which contains the minimum
1.03 REJECTION OF PROPOSALS
The Town reserves the right to reject any and all proposals. It also reserves the right to waive
any informalities in connection with the proposals.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc 1
1.04 ACCEPTANCE OF PROPOSAL/PROPOSED TIMETABLE
Within ninety(90) days after the final submission date for proposals, the Town will act upon
them. The successful consultant will be requested to enter into negotiations to produce a
contract for services. This Request for Proposalwill be attached and incorporated into the
contract. The Town reserves the right to terminate negotiations in the event it deems progress
toward a contract and timely completion of work to be insufficient. Criteria for selection will
include, but not necessarily be limited to, costs for services, the consultants approach or
proposed method to complete the work, education and experience of all professional personnel
assigned to the project, previous experience with similar projects, ability to perform work on
schedule and within budget, and geographic proximity (or ability to serve this project from
proposers office/service location).
Tentative Proposal and Project Timetable
RFP Advertisement Date October XX, 2,
Required Pre-Proposal Mtng. - Council Chambers October XX, 2
Proposals Due by 5:00 PM November 14,
Council Awards Contract for Services January 13, 201
Design Meetings with Town Staff January - Apri.
Public Meeting (Workshop) March 10, 200,
1st Draft Comprehensive Plan March 16,200,
Planning & Zoning Commission Review (4 mtngs.) March & April.
Planning & Zoning Commission Draft Review April 6, 2004
Town Council Draft Review April 27, 2004
Final Plan Review - P&Z Adoption May 18, 2004
Final Plan Review - Town Council Adoption May 25, 2004
1.05 INCURRING COST STATEMENT
The Town is not liable for costs incurred by bidders prior to the award of the contract, or at any
time after the award of the contract for any costs related to the preparation or response
requirements of the RFP.
1.06 PAYMENT
Payment will be made as set out in Part Two, on the basis of invoices submitted to the Town.
Payment shall be only for work satisfactorily completed.
1.07 CONTRACT DOCUMENTS
Contract shall consist of the contract instrument as negotiated and this request for proposal.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 2
1.08 LIMITATIONS ON CONTRACT TYPE
The Town will not accept proposals for the purchase of service based upon a cost plus
percentage of cost formula. Lump sums and cost plus fixed fee not to exceed, are allowed.
This rule will not be waived.
1.09 INFORMATION TO BE SUBMITTED
Failure to submit any required data item may be cause for rejection. Consultants may submit
such other data as they deem appropriate, however, voluminous or overly elaborate proposals
are discouraged.
PROPOSAL INFORMATION SHALL INCLUDE:
A. ORGANIZATION DESCRIPTION
Provide a short resume of the organization. Include types of similar services/products
performed/provided the firm.
B. REFERENCES
Provide a list of relevant municipal references and phone numbers that may be
contacted regarding firm performance related to the preparation and completion of
Comprehensive Plans (and the key components required herein for this proposal).
C. PROJECT HISTORY
Provide a description of experience your firm has had with projects similar to the one
described herein. Include contact person name and phone number, other than members
of your firm that can be contacted regarding this project.
D. ORGANIZATION PROFILE
Provide a personnel summary of those individuals you would expect to be assisting
during this project, and the percentage of project for which each will be responsible.
E. STATEMENT OF WORK AND PRODUCT
An outline delineating the specific tasks to be performed indicating what will be done,
in what sequence, and by whom. The statement of work should include a schedule
which indicates how long each task will require, and when client meetings will be held.
Provide a clear statement of the final product.
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc
F. LIST OF SERVICE COSTS
The firms shall provide a current rate schedule for all those elements that will be
involved in this project. These rates shall remain in effect for the duration of this
project. Refer to Section 3.03 for specific work elements being requested.
The cost proposal must be sealed and separately labeled from the rest of the proposal,
and include costs on completion of the project, including professional fees,
subconsultants, reimbursable and all other costs incidental to the project.
1.10, STANDARDS AND EVALUATION FACTORS FOR AWARD
A contract will be awarded only to responsible prospective consultant. In order to qualify, a
consultant must meet the following standards as they relate to this request
for proposal.
Have an established record of performance in:
ing and Zoning Commission and the Town Coun4
B. Design and Cost Estimating in the following areas:
Analyses of Land Use & Public Budgeting (Constraints and Opportunities))
Economic, Social, and Enviromnental Quality Index Constructs. A review c
,creation assessment shall be included in this report.
Cost of Community Service/Contingent Valuation Surveying, and Economi,
-hniques for public agencies.
3uild out Analysis.
comprehensive / Long Range Plan production with specific implementation
D. Be o
The Town intends to negotiate a contract with the consultant whose firm, qualifications,
approach and proposed cost instill the highest confidence level.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc 4
PART TWO: GENERAL INFORMATION
2.01 SCOPE OF WORK
The work to be performed under this contract consists of the furnishing of all labor, equipme
materials, expertise, tools, supplies, bonds, insurance, licenses and permits, and perforning
tasks necessary to accomplish work items concerning the design and completion of a
2.02 DUTIES OF CONSULTANTS
Consultants shall diligently undertake and perform all work required by the contract.
Consultant agrees to devote the number of persons and level of effort necessary to perform and
complete the work in a timely manner. All work done will be performed to the highest
professional standards and will reflect the thoroughness, attention to detail, and application of
knowledge expected of professional consultants in the field.
2.03 OBTAINING DATA
hall be the Consultant's sole responsibility to obtain all data necessary to complete the work
i timely manner. Town shall make any data in its possession that is relevant to Consultant's
ivity, available to Consultant upon request. Requests shall specify the type of information
fight, and the period for which the data is required; however, the Consultant may not require
wn to seek reports from other agencies or to prepare original research. It shall be the
nsultant's duty to discover and obtain data, research and reports prepared by public or privat
irces other than Town from the custodian. Town does not vouch for the accuracy of any dat,
er than its own. Data fwnished by Town shall be considered accurate only for the purpose
which it was originally gathered. Consultant shall be solely responsible for any conclusions
2.04 CHANGES
Town reserves the right to order changes in the work within the general scope of the project.
The project manager or his designee shall order changes in writing. In the event Consultant
encounters circumstances which it believes warrants a change in the price, quality, quantity or
method of performing work, it shall notify the project manager of the circumstances in writing.
No change in work shall be undertaken until authorized in writing by the Town. Either party
shall be entitled to an equitable adjustment in the contract price for changed work. It shall be
Consultant's sole responsibility to notify the project manager in advance, in writing, of any
work that it considers to be changed or extra. Failure to do so, and to provide and to receive
approval before processing, shall waive any claim for additional payment.
2.05 PAYMENTS
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
Consultant shall invoice Town monthly for all work done. Invoices shall itemize the work
accomplished during the payment period by hours of classification and subcontractor charges to
date of invoice. Approved invoices are paid within thirty days of presentation.
2.06 TERMINATION FOR CONVENIENCE
The Town shall have the right to terminate this contract for convenience at any time prior to
completion. Written notice of such termination shall be mailed to Consultant at its address on
file with the Town. Termination shall be effective ten (10) days from the date notice is mailed.
Upon receipt of notice of termination, Consultant shall immediately stop work and terminate all
subcontracts. Upon either termination for convenience or curtailment, Consultant shall be
entitled to receive an amount equal to the cost of work performed to date, including the cost of
terminated subcontracts provided that in no case shall the amount allowed exceed the maximum
contract price plus authorized change orders.
2.07 TERMINATION FOR DEFAULT
Upon failure of the Consultant to make satisfactory progress or failure to abide by the terms of
the contract, or to obtain, furnish or keep in force any required permit, license, bond, or
insurance, the Town shall have the right to terminate the contract for default. Written notice
of termination shall be mailed to the Consultant at its address upon the records of the agency.
Notice shall be effective when mailed. Upon receipt of notice, Consultant shall immediately
stop work and relinquish all project files to the Town. The Town may thereafter pursue the
work or hire another consultant to do so and charge the excess cost thereof to Consultant.
2.08 DISPUTES
In the event a dispute arises concerning any matter under the contract, the party wishing
resolution of the dispute shall submit a request in writing to the Town Manager. The Town
shall consider the request and respond in writing within ten (10) days giving findings and the
reasons for them. Any person dissatisfied with the findings of the Town Manager may appeal
to the Avon Town Council in writing within ten (10) days. Failure to do so waives any
objection. The Town Council shall consider any matter appealed at a hearing within thirty (30)
days. The decision of the Town shall be final upon matters of fact unless clearly erroneous or
procured by fraud.
2.09 ASSIGNMENT OF CONTRACT
Consultant shall not assign this contract or any moneys to become due hereunder, without prior
written approval of the Town of Avon.
2.10 SUBCONTRACTORS
Specialty subcontractors or subconsultants may be used to perform such work as is customary
in Consultant's profession; however, reports required shall be presented by the Consultant who
shall be liable for any faulty data, errors or omissions contained therein.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompP1an2003.doc
2.11 CONSULTANT'S REPRESENTATIVE
N..
Consultant shall designate a member of its staff who is knowledgeable concerning this project
and who has authority to act for the Consultant upon all matters pertaining to this agreement.
Consultant's representative or his designee shall be available by telephone to the Town during
normal business hours (8:00 AM to 5:00 PM, Monday through Friday) for the duration of the
work set forth in this proposal.
2.12 INSURANCE
A. In addition to such other insurance that may be required under this contract, the
Consultant shall provide adequate Workmen's Compensation Insurance for all
employees employed under this contract on this project who may come within the
protection of workmen's compensation law; and shall provide, where practicable,
employer's general liability insurance for the benefit of his employees not protected by
such compensation laws, and proof of such insurance shall be given to the Town.
B. The Consultant will be charged with the responsibility for proper and adequate
workman's compensation coverage for all his subcontract operations and in the event
Consultant's insurance does not cover each and every subcontractor, certificates
of insurance issued on policies by companies that may be acceptable to the Town
covering each and every subcontractor shall be filed with the Town prior to the
commencement of such subcontract operations.
C. Public Liability & Property Damage Insurance:
The Consultant shall take out and maintain -during the life of this contract such Public
Liability and Property Damage Insurance as shall protect him and any subcontractor
performing work covered by this contract, from claims for damages for personal
damages, which may arise from operations under this contract, whether such operations
be by himself or by any subcontractor, or by anyone directly or indirectly employed by
either of them.
Insurance shall be in the minimum amounts required by the State of Colorado and local
applicable authority.
2.13 EEO PROVISIONS
The Consultant shall comply with all applicable provisions of the Regulations of the U.S.
Department of Commerce (Part 8 of Subtitle 15 of the Code of Federal Regulations) issued
pursuant to the Civil Rights Act of 1964, in regard to nondiscrimination in employment because
of race, religion, color, sex, handicap, or national origin. The Consultant shall comply with
applicable Federal, State and Local laws, rules and regulations concerning Equal Employment
Opportunity.
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
2.14 TIME OF COMPLETION OF WORK AND EXTENSION OF TIME LIMIT
The work to be done under this contract shall be completed in its entirety on or before the date
specified, provided however, that the owner may in its discretion extend the time for the
completion of the work without invalidating any of the provisions herein contained and without
releasing any surety.
Extension of time as provided above will be considered by the Town only upon receipt of
written request from the Consultant.
2.15 DUTIES AND OBLIGATIONS OF CONSULTANT
The Consultant shall:
A. Make payment promptly, as due, to all persons supplying to such Consultant,
labor or material for the prosecution of the work provided for in the contract.
B. Not permit any lien or claim to be filed or prosecuted against the Town on account of
any labor or materials furnished.
C. Pay to the Department of Revenue all sums withheld from employees pursuant to
local/state statutes.
2.16 PAYMENT OF CLAIMS BY THE TOWN
If the Consultant fails, neglects, or refuses to make prompt payment of any claim of labor or
services furnished to the Consultant or subcontractor by any person in connection with.the
contract as such claim became due, the Town may pay such claim to the person furnishing the
labor or services, and charge the amount of the payment against funds due, or to become due
the Consultant, by reason of this contract.
2.17 COMPENSATION WHEN CONTRACT TERMINATED FOR CONVENIENCE
In the event of termination of a contract for convenience of the Town, provisions shall be made
for the payment of compensation to the contractor. In addition to a reasonable amount of
compensation for preparatory work and for all costs and expenses arising out of termination, the
amount to be paid to the Consultant:
A. Shall be determined on the basis of the contract price in the case of any full-completed
separate item or portion of the work for which there is a separate or unit contract price;
and
B. May, with respect to any other work, be a percent of the contract price equal to the
percentage of the work completed.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
C. Shall be based upon the approved schedule of values.
2.18 MAXIMUM HOURS OF LABOR - HOLIDAYS - EXCEPTIONS
The Consultant agrees that no person shall be required or permitted to labor more than eight
hours in any one day, or 40 hours per week, without compensation in accordance with
applicable State and Federal laws and/or regulations and Consultant's established and published
compensation policies.
2.19 INSPECTION OF PAYROLL RECORDS
The Consultant agrees that:
A. The Town, or any of its duly authorized representatives, shall have access to any books,
documents, papers, and records of the contractor which are directly pertinent to this
specific contract, for the purpose of making audit, examinations, excerpts, and
transcriptions. All required records must be appropriately maintained by the
consultant/vendor for three years after final payment, and all other pending matters are
closed.
2.20 COSTS AND FEES
In the event that any suit or action is commenced or arises from this agreement, each party shall
bear its own costs and fees including attorney fees regardless of the outcome. This provision
shall apply to the original action and any appeals.
2.21 STANDARDS OF CONDUCT
No member, officer, or employees of the Town, or its designees or agents, nor member of the
governing body of agency, and no other public official of agency who exercises any functions
or responsibilities with respect to this contract during his/her tenure, or for one year thereafter,
shall have any interest, direct or indirect, in work to be performed in connection with this
contract. All contractors shall incorporate, or cause to be incorporated in all subcontracts, a
provision prohibiting such interest.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc
PART THREE: THE WORK STATEMENT
3.01 NEEDS ASSESSMENT .,.,
graphic changes have taken place in Avon. In particular, the Town annexed the )
property and vested it with development rights that will increase the Town in siz
itically over the next 10 to 20 years. Additionally, the Town completed construct
Road and Beaver Creek Blvd. traffic and pedestrian improvements, adopted a `T
r Plan' to guide redevelopment in a limited portion of Town, and began construct
As the Town of Avon has developed, the goals and policies of the existing Comprehensive Plan
have been unable to articulate a defined vision for such a rapidly developing community.
Additionally, the recent economic recession has required the Town to reconsider how land use
decisions affect the local economy and the continuous provision of public services. One of the
primary focal points of this comprehensive plan update will be an economic component that
identifies constraints and opportunities related to development and redevelopment, as well as a
build out analysis of the Town.
irrently there are no tangible economic goals and policies identified in the Comprehensive
in that complement the wide array of public services provided by the Town and create nexus
tween levels of public service and continued land development. There is also no discussion
potential public/private collaborations or consolidation of public services to secure the futur
3.02 GOALS
rich contains specific goals and policies related to the Capital Improvement Program of f
wn and future development and redevelopment proposals. The Comprehensive Plan wil
o create a framework of `quality of life' indicators specifically tailored to the Town, as v
provide an analysis and forecast of economic opportunities and constraints as they relate
s continued provision of quality public services in an expanding resort community. Speci
3.03 SCOPE OF SERVICES
Responses to this Request for Proposals shall be based upon the following Scope of Services:
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 10
Coordination and facilitation of all required meetings with Town staff, public, Plannin
Zoning Commission, and the Town Council. The minimum ntunber of meetings is listed in
s proposal, however, additional meetings may be required by Town staff as necessary to
E. Incorporation of all public and Town review comments received at all meetings aC
of the draft document and part of the record of the project. The project will also reference
include recommendations of the Town Center Plan, Design Review Guidelines, and any c
development that is not detailed in the existing Comprehensive Plan.
.cators, as proposed and agreed to by Town staff and both elected and appointed offici;
ices are expected to draw from economic, public service, recreation opportunities,
Provision of a build-out analysis which is included in the Comprehensive
xment and available as a separate `executive summary' that includes pertinen
lopment and redevelopment opportunities, and the existing zoning constraints and
)rtunities available to the Town. The evaluation and specific recommendations will fo
alancing land uses to provide a diverse local economy that sustains the provision of
rased public services as the population of the Town increases over the next 10 to 20 y(
overarching purpose of this component is to provide a competitive advantage to Avor.
,hants and ensure that basic public services are provided at a reasonable level indepen
e economic health of the resort function that Avon currently provides. The
emendations will be made in concert with and not conflict with the proposed Q.O.L.
3.04 RESPONSE REQUESTED BY TOWN
The consultant's role is viewed in distinct phases.
lesignated interest groups and, b) initial data collection such as mapping, dwelling ur
analyses, development plans, and existing master plans and regulations.
F:\Regulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 11
B. Provision of all additional surveying, GIS/CAD and mapping work as required to.
establish any additional information to provide the level of accuracy required for complet
final plan and associated documents.
- Development of a draft plan and the required components of the plan (Build ou
Q.D.L. Indicator report, Economic report). This will be a comprehensive plan tI
be
se IV - Presentation and production of the final approved Comprehensive Plan and separ
;utive summary and components as required by the Town.
Proposal should address the phases as outlined above with the fee and scope of services
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraf1CompPlan2003.doc
FARegulations & Procedures\Comp Plan\2003 Comp Plan Update\RFPDraftCompPlan2003.doc 12
TOWN OF AVON, COLORADO
RESOLUTION NO. 03-
SERIES OF 2003
RESOLUTION APPROVING THE ISSUANCE BY
EAGLEBEND DOWD AFFORDABLE HOUSING
CORPORATION OF MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BONDS, SERIES 2003, IN AN
AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED
$9,800,000; AUTHORIZING AN AGREEMENT R LATED
TO INDEMNIFICATION AND ANY OTHER N 'FSSARX
AMENDMENTS TO A PROJECT AGREEMENT; AND
AUTHORIZING INCIDENTAL ACTION.
WHEREAS, EagleBend Dowd Affordable Housing Corporation (the
"Corporation") has been duly organized under the provisions of Colorado law governing
nonprofit corporations, for the purpose of acquiring interests in real property and to construct,
install and operate certain improvements in or near the Town of Avon (the "Town"); and
WHEREAS, the Corporation has previously entered into a Trust Indenture dated as
of July 1, 1998 (the "1998 Indenture") and has issued its Multifamily Housing Project Revenue
Bonds, Series 1998A in an aggregate principal amount of $9,500,000 (the "Series 1998A Bonds"),
its Multifamily Housing Project Subordinate Revenue Bonds, Series 1998B in an aggregate
principal amount of $600,000 (the "Subordinate Series 1998B Bonds"), and its Multifamily
Housing Project Subordinate Revenue Bonds, Series 1998C in an aggregate principal amount of
$1,000,000 (the "Subordinate Series 1998C Bonds" and, together with the Series 1998A Bonds
and the Subordinate Series 1998B Bonds, the "Series 1998 Bonds") to acquire and construct real
and personal property, buildings and improvements, to provide dwelling accommodations at
rentals within the means of individuals or families of low or moderate income (the "Project"),
known as "Kayak Crossing" on a site of approximately 4.73 acres in unincorporated Eagle
County, Colorado, near the Town; and
WHEREAS, in order to assure that responsibility for operation of the Project is
vested in the Corporation, the Town and the Corporation have previously executed and delivered a
Project Agreement dated as of July 1, 1998 (the "Project Agreement"), under the terms of which
the Corporation is responsible to operate the Project, and title to the Project shall vest in the Town
upon the end of the term of the Project Agreement; and
WHEREAS, the Corporation now desires to provide for a partial refinancing of the
Project and refunding of the Series 1998A Bonds and, in order to provide funds therefor, the
Corporation intends to amend and restate the 1998 Indenture by entering into an Amended and
Restated Trust Indenture dated as of October 1, 2003 (the "2003 Indenture) with U.S. Bank
2
\\\DE - 68464/1 - 0038618.01
1 € F.-__}"d4'06.3u.__}n0BSG-vf-`,?SaF-'?'93;9.ti3Q. _ 19QSF'?12
National Association, as Trustee, and intends to issue pursuant to such 2003 Indenture its
Multifamily Housing Project Refunding Revenue Bonds, Series 2003A, in an aggregate principal
amount not to exceed $9,800,000 (collectively, the "Series 2003 Bonds"); and
WHEREAS, a proposed form of the 2003 Indenture (including the forms of the
Series 2003 Bonds contained therein) has been presented before the Town Council (the "Council")
at this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO, AS FOLLOWS:
1. Approval of Modifications to and Amendment of 1998 Indenture. In
accordance with the terms of the Project Agreement, the Town hereby approves and consents to the
amendment and modification of the 1998 Indenture as provided in the 2003 Indenture.
2. Issuance of the Series 2003 Bonds. The Series 2003 Bonds and the issuance
thereof by the Corporation for the purpose of refinancing a portion of the Project by refunding the
Series 1998A Bonds are, in all respects, hereby approved. The Series 2003 Bonds shall be issued
solely as fully registered bonds without coupons in the denominations as provided in the 2003
Indenture. The Series 2003 Bonds shall bear interest payable at the rates and times and will mature
in the amounts and on the dates set forth in the 2003 Indenture, as finally executed.
The Series 2003 Bonds shall be issued and secured as set forth in the 2003
Indenture, and the forms, terms and provisions of the Series 2003 Bonds and the provisions for
their execution, authentication, payment, registration, transfer, exchange, redemption and number
shall be as set forth in the 2003 Indenture.
The Town hereby designates the Series 2003 Bonds as "qualified tax-exempt
obligations" pursuant to Section 265(b) (3) of the Internal Revenue Code of 1986, as amended, and
represents that the reasonably anticipated amount of tax-exempt obligations (other than private
activity bonds) which will be issued by the Town during the calendar year 2003, including
obligations issued by subordinate entities of the Town and by entities issuing obligations on behalf
of the Town, does not exceed $10,000,000.
_ 3 Ate royal of Aggreeinen Rp9 rdin s Indemnificatic}n and Aar
Necessary. Amendments to Project Agreement The Town hereby approves: (i) an
amendment to the Project Agrgem.-ent or such other agyreem n 5 i sfa ga, to the Tom an
its counsel. for the purposes of providing that the Corporation will protect efend, hold
harmless and in l mnif - the To«°n for any l ss li° iliti ?s or,,ani` cTe settlements,
penalties, interest and expense which may be suffered or incurred by the Town in connection
n
:i h its approval of the 2003 Indenture an issuance by the Cornoratjonf2f the 2003 Bonds°
and (ii) any amendment to the Project. Agreement deemed necessary by the Town's counsel
in c_> nneetion iyk h...t1ie issuance of the Series 2 03 Br?ncl_s
3
";[3#?: - i#.?#ii.'PF+3u - ?ESt+b{ _j f `:'•; "r ?.l "i.41:OG3D -_i 9088G_r2-
Town Action. The Mayor of the Town and the Town Clerk are hereby
authorized and directed to execute and deliver such documents, including any agreement
relating to indemnification or any amendment to the Project Agreement to the extent
approved above, and to take all action necessary or reasonably required to carry out, give effect to
and consummate the transactions contemplated hereby and thereby.
445. No Indebtedness of the Town. No provision of this Resolution or of the
Project Agreement, the 2003 Indenture, the Series 2003 Bonds or any other instrument
executed in connection therewith, shall be construed as creating an obligation on the part of
the Town to pay the principal of, premium, if any, or interest on the Series 2003 Bonds, nor
as creating an indebtedness or financial obligation on the part of the Town within the
provisions or limitations of any statutory or constitutional provision of the laws of the State
of Colorado or any provision of the home rule charter of the Town.
5--6? Title to Pro - ject. The Town hereby determines that it will accept title to the
Project, including any additions thereto, when all the Bonds (as defined in the 2003 Indenture) are
fully paid and discharged.
6,7 Severability. If any provision of this Resolution should be held invalid, the
invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provisions hereof are severable.
?$. Other Actions. The appropriate officers of the Town are hereby authorized
to execute and deliver for and on behalf of the Town, any or all additional certificates, documents
and other papers and to perform all other acts they may deem necessary or appropriate in order to
implement and carry out the matters authorized in this Resolution and in any resolution of the
Corporation.
--& Effective Date; Repealer. This Resolution shall take effect immediately
upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in conflict
with this Resolution are hereby repealed or modified to the extent of such conflict.
4
W -DE-7004;06341 --008hf -v€ \,A) -_?.1.7.04[0630.,1,9„0H6 V2_
ADOPTED AND APPROVED this 14th day of October, 2003.
TOWN OF AVON, COLORADO
[SEAL]
By:
Mayor
Attest:
Town Clerk
i '.DE-71704/ 63u- { 90,Mfr-v E-'::? DC -.71-, 0410630 -.1.!0886-}2..
.... ......
The motion to adopt the foregoing Resolution was duly seconded by Council
Member , put to a vote and carried upon the following vote:
Those voting YES:
Those voting NO:
Those absent:
Thereupon the Mayor declared the motion had carried and the Resolution duly
passed and adopted. After consideration of other business to come before the Council, the meeting
was adjourned.
[SEAL]
Mayor
Attest:
Town Clerk
_ RI
6
71704!tl630-i9088fe-v-F `:' QF 7.1"01.030.-_l?03&G s2_
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
I, , the duly appointed, qualified and acting Town Clerk of
the Town of Avon, Colorado, do hereby certify that the foregoing pages numbered 1 through ,
inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of
Avon, Colorado, adopted at a special meeting of the Council held at the regular meeting place
thereof in Avon, Colorado, on Tuesday, the 14th day of October, 2003, commencing at the hour of
_.m., as recorded in the official Record of the Proceedings of the Town kept in my office,
insofar as said proceedings relate to the Resolution contained therein; that said proceedings were
duly had and taken; that the meeting was duly held; and that the persons were present at said
meeting as therein shown.
WITNESS my hand and seal as of this day of , 2003.
[SEAL]
Town Clerk
Town of Avon, Colorado
7
1F31 -7.1^04,'06.30- 00"f, 'L-04.003(1.-...120884..'2..
CERTIFIED RECORD OF PROCEEDINGS
OF THE TOWN COUNCIL
OF THE TOWN OF AVON. COLORADO
APPROVING THE ISSUANCE OF
MULTIFAMILY HOUSING PROJECT REFUNDING REVENUE BONDS
SERIES 2003
BY THE EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
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}E34S-71- 04; f?631F- 4 POSSE e ! `:'i n1 - 7,117-04 .OU30 -.126,&R6 Q
DRAFT: 10/06/03
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in special session at the
Town Hall in Avon, Colorado, on Tuesday, the 14th day of October, 2003, at the hour of
m.
The following members of the Council were present:
The following members were absent:
The following persons were also present:
Thereupon, Council Member introduced and moved the adoption
of the following Resolution, which was read by title, copies thereof having been made available to
the Council and the public prior thereto:
€++'-- %+"0+;'Ooa--!9088(] [?:?Dr + 0;1?os30 +9o8SL xz._
p2a: ?
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
to
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
TRUST INDENTURE
Dated as of October 1, 2003
Securing
EagleBend Dowd Affordable Housing Corporation
Multifamily Housing Project Revenue Bonds,
Series 1998B-C and 2003A
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND REPRESENTATIONS OF THE
CORPORATION .................................................................................................................... 21
Section 1.01. Definitions ......................................................................................... 21
Section 1.02. Representations of the Corporation ................................................... 30
ARTICLE 11 THE BONDS ................................................................................................. 32
Section 2.01. Amounts and Terms - Series 2003A Bonds and Other Series .......... 32
Section 2.02. Interest Accrual .................................................................................. 33
Section 2.03. Bond Registrar and Bond Register .................................................... 33
Section 2.04. Registration, Transfer and Exchange ................................................ 34
Section 2.05. Execution ........................................................................................... 35
Section 2.06. Authentication .................................................................................... 35
Section 2.07. Payment of Principal and Interest; Interest Rights Preserved ........... 35
Section 2.08. Persons Deemed Owners ................................................................... 36
Section 2.09. Mutilated, Destroyed, Lost or Stolen Bonds ..................................... 36
Section 2.10. Temporary Bonds .............................................................................. 37
Section 2.11. Cancellation and Destruction of Surrendered Bonds ........................ 37
ARTICLE III ISSUE OF BONDS ........................................................................................37
Section 3.01. Issue of Bonds ....................................................................................37
Section 3.02. Issue of Additional Bonds .................................................................37
Section 3.03. Disposition of Proceeds of Bonds; Other Deposits ...........................39
Section 3.04. Subordinate Obligations Permitted ...................................................39
Section 3.05. Superior Bonds Prohibited ................................................................39
ARTICLE IV PLEDGE OF TRUST ESTATE, REVENUES AND FUNDS ....................39
Section 4.01. Pledge of Trust Estate ........................................................................39
Section 4.02. Establishment of Funds .....................................................................40
Section 4.03. Bond Fund ..........................................................................................40
Section 4.04. Excess Investment Earnings Fund .....................................................43
Section 4.05. Property Insurance and Award Fund .................................................43
Section 4.06. Revenue Fund; Surplus Account .......................................................47
Section 4.07. Purchase of Bonds .............................................................................48
ARTICLE V COVENANTS AND AGREEMENT OF THE CORPORATION ..............49
Section 5.01. Performance of Covenants ................................................................49
- i -
Page
Section 5.02.
Section 5.03.
Section 5.04.
Payments
Section 5.05.
Section 5.06.
Section 5.07.
Section 5.09.
Section 5.10.
Section 5.11.
Section 5.12.
Section 5.13.
Section 5.14.
Section 5.15.
Section 5.16.
Section 5.17.
Corporate Existence; Compliance with Laws ................................... 49
Further Assurances ............................................................................ 49
Payment of Principal, Interest and Premium; Other Required
49
Conditions Precedent ......................................................................... 50
Financing Statements ......................................................................... 50
Construction, Equipping and Operation of the Project ..................... 51
Taxes and Other Governmental Charges and Utility Charges .......... 52
Maintenance and Management of the Project ................................... 52
Liens ................................................................................................... 52
No Liability of Corporation's Officers, Etc ....................................... 53
Removal of Project Equipment ......................................................... 53
Installation of the Corporation's Equipment ..................................... 54
Tax Covenants ................................................................................... 55
Additional Projects ............................................................................ 56
Change of Ownership ........................................................................ 56
ARTICLE VI DAMAGE, DESTRUCTION AND NO CONDEMNATION .....................56
Section 6.01. Corporation to Repair, Replace, Rebuild or Restore ........................ 56
Section 6.02.. Cooperation of the Trustee ................................................................57
ARTICLE VII CORPORATION'S OPTIONS ......................................................................57
Section 7.01. Easements and Release of Real Property ..........................................57
Section 7.02. Prepayment of Payments ...................................................................58
Section 7.03. Satisfaction of Payments ...................................................................58
Section 7.04. Termination Upon Retirement of Bonds ...........................................58
ARTICLE VIII SECURITY FOR AND INVESTMENT OR DEPOSIT OF FUNDS .........58
Section 8.01. Deposits and Security Therefor .........................................................58
Section 8.02. Investment or Deposit of Funds ........................................................59
ARTICLE IX REDEMPTION OF BONDS .........................................................................60
Section 9.01. Bonds Subject to Redemption; Selection of Bonds to be
Called for Redemption ...............................................................................................60
Section 9.02. Notice of Redemption ........................................................................60
Section 9.03. Payment of Redemption Price ...........................................................61
Section 9.04. Bonds Redeemed in Part ...................................................................61
Section 9.05. Bond Redemption Fund for Refunding Issues ..................................61
ARTICLE X EVENTS OF DEFAULT AND REMEDIES ................................................62
Section 10.01. Events of Default Defined .................................................................62
A-ii
Page
Section 10.02. Acceleration and Annulment Thereof ............................................... 64
Section 10.03. Legal Proceedings by Trustee ............................................................ 65
Section 10.04. Discontinuance of Proceedings by Trustee ....................................... 65
Section 10.05. Bondholders May Direct Proceedings ............................................... 65
Section 10.06. Limitations on Actions by Bondholders ............................................ 65
Section 10.07. Trustee May Enforce Rights Without Possession of Bonds ............. 66
Section 10.08. Delays and Omissions Not to Impair Rights ..................................... 66
Section 10.09. Application of Moneys in Event of Default ...................................... 67
Section 10.10. Trustee and Bondholders Entitled to All Remedies;
Remedies Not Exclusive ............................................................................................ 69
Section 10.11. Trustee's Right to Receiver ................................................................ 69
Section 10.12. Bankruptcy Proceedings .................................................................... 69
Section 10.13. Indemnity ........................................................................................... 70
Section 10.14. Certain Additional Provisions With Respect to Bondholder
Remedies, Receipt of Notice and Other Matters ........................................................ 70
ARTICLE XI THE TRUSTEE .............................................................................................70
Section 11.01. Acceptance of Trust ...........................................................................70
Section 11.02. No Responsibility for Recitals, etc ....................................................71
Section 11.03. Trustee May Act Through Agents; Answerable Only for
Willful,
Section 11.04.
Section 11.05.
Section 11.06.
Section 11.07.
Section 11.08.
Section 11.09.
Section 11.10.
Section 11.11.
Section 11.12.
Section 11.13.
Section 11.14.
Section 11.15.
Section 11.16.
Section 11.17.
Section 11.18.
ARTICLE XII
BONDS
Section 12.01
ARTICLE XIII
Misconduct or Negligence ..........................................................
Compensation and Indemnity .........................................
Notice of Default; Right to Investigate ..........................
Obligation to Act on Defaults .........................................
Provision of Monthly Fund Statements ..........................
Reliance on Requisition, Counsel, etc ............................
Trustee June Own Bonds ................................................
Construction of Ambiguous Provisions .........................
Resignation of Trustee ....................................................
Removal of Trustee ........................................................
Appointment of Successor Trustee ................................
Qualification of Successor ..............................................
Instruments of Succession ..............................................
Merger of Trustee ...........................................................
Appointment of Co-Trustee ............................................
Intervention by Trustee ...................................................
ACTS OF BONDHOLDERS: EVIDENCE OF OWNERSHIP OF
74
Acts of Bondholders; Evidence of Ownership
AMENDMENTS AND SUPPLEMENTS
......................75
.........................75
A-iii
Page
Section 13.01. Amendments and Supplements Without Bondholders'
Consent 75
Section 13.02. Amendments With Bondholders' Consent ........................................76
Section 13.03. Amendment of Operating Deficit Agreement ...................................76
Section 13.04. Trustee Authorized to Join in Amendments and
Supplements; Reliance on Counsel ............................................................................76
ARTICLE XIV DEFEASANCE ..............................................................................................76
Section 14.01. Defeasance .........................................................................................76
Section 14.02. Town's Rights ....................................................................................77
ARTICLE XV. MISC
Section 15.01.
Section 15.02.
Section 15.03.
Section 15.04.
Section 15.05.
Section 15.06.
Section 15.07.
Section 15.08.
Section 15.09.
Section 15.10.
Section 15.11.
Section 15.12.
ELLANEOUS PROVISIONS ...............................................................
No Personal Recourse ...............................................................
Deposit of Funds for Payment of Bonds ..................................
No Rights Conferred on Others ................................................
Illegal, etc. Provisions Disregarded ..........................................
Substitute Notice .......................................................................
Notices to Trustee and Corporation .........................................
Successors and Assigns ............................................................
Headings for Convenience Only ..............................................
Counterparts ..............................................................................
Information Under Commercial Code .....................................
Payments Due On Saturdays, Sundays and Holidays ..............
Applicable Law .........................................................................
.......79
.......79
.......79
.......79
.......79
.......80
.......80
.......80
.......80
.......80
.......80
.......80
....... 81
A-iv
AMENDED AND RESTATED TRUST INDENTURE dated as of October 1, 2003 (the
"Indenture"), between EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
(the "Corporation"), a nonprofit corporation organized under the laws of the State of Colorado,
and U.S. BANK NATIONAL ASSOCIATION, as Trustee (the "Trustee"), a national banking
association.
RECITALS:
A. The Corporation has been duly organized pursuant to the provisions of the
Colorado Nonprofit Corporation Act, articles 20 through 29 of title 7, Colorado Revised Statutes, as
amended (the "Act"), and is authorized to acquire interests in real property in furtherance of the
interests of the Town of Avon, Colorado (the "Town") and its inhabitants; and
B. The Corporation is authorized to borrow money and issue bonds and other
obligations, and to secure such obligations by mortgage or pledge of all or any part of its property
interests and income; and
C. The Corporation has previously acquired and constructed real and personal
property, buildings and improvements in close proximity to the Town, including all other work in
connection therewith, to provide 50 dwelling accommodations at rentals within the means of
individuals or families of low or moderate income (the "Project"), as determined by the Board of
Directors of the Corporation (the 'Board"); and
D. To provide the funds needed to acquire and construct the Project, on July 14,
1998, the Corporation issued $9,000,000 aggregate principal amount of its Multifamily Housing
Project Revenue Bonds, Series 1998A (the "Series 1998A Bonds"), and, on a basis subordinate
thereto, $600,000 aggregate principal amount of its Multifamily Housing Project Subordinate
Revenue Bonds, Series 1998B (the "Series 1998B Subordinate Bonds"), and, on a basis
subordinate thereto, $1,000,000 aggregate principal amount of its Multifamily Housing Project
Subordinate Revenue Bonds, Series 1998C (the "Series 1998C Subordinate Bonds") (the Series
1998A Bonds, the Series 1998B Subordinate Bonds, and the Series 1998C Subordinate Bonds are
sometimes collectively referred to herein as the "Series 1998A-C Bonds"), such Bonds issued
pursuant to a Trust Indenture dated as of July 1, 1998 (the "1998 Indenture") between the
Corporation and U.S. Bank National Association, as Trustee; and
E. This Amended and Restated Master of Indenture of Trust constitutes a
"Supplemental Indenture" for purposes of Article XIII of the 1998 Indenture; (b) the Authority
desires to amend and restate the 1998 Indenture according to the terms of this Amended and
Restated Indenture of Trust; and (c) the Trustee and the Bondholders have agreed and consented
to such amendments to the extent necessary in accordance with the 1998 Indenture.
F. The Corporation desires to provide for the refinancing of the Project and
refunding of the Series 1998A Bonds and, in order to provide funds therefor, the Corporation has
duly authorized the issuance and sale of $9,520,000 aggregate principal amount of its Multifamily
Housing Project Refunding Revenue Bonds, Series 2003A (the "Series 2003A Bonds" and together
1
with the Series 1998B Subordinate Bonds, the Series 1998C Subordinate Bonds, and any
Additional Bonds issued pursuant to this Indenture, the 'Bonds"); and
G. It is anticipated that proceeds of the Series 2003A Bonds will be applied to
the refunding of the Series 1998A Bonds.
H. In connection with the issuance of the Series 1998 Bonds, the Corporation
has previously entered into a Project Agreement (the "Project Agreement") dated as of July 1,
1998 with the Town; and
1. The Bonds to be issued hereunder are issued solely on behalf of the Town,
and pursuant to the Project Agreement, the Corporation has provided that upon discharge of the
Bonds, unencumbered fee title to the Project will vest solely in the Town; and
J. The Board has determined that the Project is located within eight miles of,
and has a substantial connection with, the Town and will provide safe and sanitary dwelling
accommodations at rentals within the means of individuals or families of low or moderate income;
and
K. The Series 2003A Bonds are to be in substantially the following forms (with
such alterations and variations in the arrangement of paragraphs and the text to be contained on the
face and reverse of each Bond, as may be necessary to comply with industry standards or
requirements for preparation of definitive Bonds):
[FORM OF BOND]
THIS BOND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, AND HAS NOT BEEN REGISTERED OR OTHERWISE QUALIFIED FOR SALE
UNDER THE "BLUE SKY" LAWS AND REGULATIONS OF ANY STATE AND WILL AS OF
THE DATE OF ISSUE CARRY NO RATING FROM ANY RATING SERVICE.
THIS BOND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT IN MINIMUM DENOMINATIONS OF $100,000 TO TRANSFEREES WHO HAVE
PROVIDED TO THE CORPORATION AND THE TRUSTEE A COMPLETED CERTIFICATE
OF QUALIFIED INVESTOR IN THE FORM ATTACHED TO THIS BOND (WITH SUCH
CHANGES AS MAY BE REQUIRED BY BOND COUNSEL TO REFLECT CHANGES IN
APPLICABLE LAW, AND AS APPROVED BY THE CORPORATION) DULY EXECUTED
BY THE TRANSFEREE.
No. AR-
UNITED STATES OF AMERICA
EAGLE COUNTY
STATE OF COLORADO
2
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION
MULTIFAMILY HOUSING PROJECT
REFUNDING REVENUE BOND
SERIES 2003A
Per Annum
Interest Rate
Maturi Date
Original Date
% January 1, October , 2003
Registered Owner:
Principal Sum:
DOLLARS
EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION (the
"Corporation"), a nonprofit corporation organized under the laws of the State of Colorado, for
value received, hereby promises to pay to the Registered Owner (specified above), or registered
assigns, the Principal Sum (specified above) on the Maturity Date (specified above), unless this
Bond shall have been duly called for previous redemption in whole or in part and payment of the
redemption price shall have been duly made or provided for, upon surrender hereof, and to pay to
the person in whose name this Bond is registered at the close of business on the regular record date
for such interest, which shall be the fifteenth day of May or November next preceding an interest
payment date (the "Regular Record Date"), by check or draft mailed to such person at his address
as it appears on the registration books of the Corporation maintained by the Trustee, interest on said
principal sum at the per annum Interest Rate (specified above); provided that at the written request
of any owner of this Bond received by the Trustee at least one business day prior to the Regular
Record Date, interest hereon shall be payable in immediately available funds by wire transfer within
the United States. Interest in respect of this Bond shall accrue from the interest payment date next
preceding the date of authentication to which interest shall have been paid, (i) unless such date of
authentication is an interest payment date to which interest shall have been paid, in which case,
from such authentication date, or (ii) unless authenticated after a Record Date and prior to an
interest payment date with respect to such Record Date, in which case from such interest payment
date, or (iii) unless this Bond is authenticated prior to the first interest payment date in which case
interest in respect of this Bond shall accrue from its Original Date shown above. Payments of
interest hereunder shall be payable semi-annually on June 1 and December 1 in each year,
commencing June 1, 2004, at the per annum Interest Rate (specified above), until payment of said
principal sum and (to the extent payment of such interest shall be legally enforceable and only as
provided below and in the Indenture) on any overdue installment of interest.
Any interest not punctually paid shall forthwith cease to be payable to the registered
owner on such Regular Record Date, and may be paid to the person in whose name this Bond is
registered at the close of business on a special record date for the payment of such defaulted interest
3
to be fixed by the Trustee, notice whereof being given by first class postage prepaid mail to
registered Bondholders not more than 15 nor less than 10 days prior to such special record date, or
may be paid at any time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Bonds may be listed and upon such notice as may be required by
such exchange, all as more fully provided in the Indenture. The foregoing is subject to the
limitation that so long as any of the Series 2003A Bonds (as defined below) or additional bonds,
secured on a parity therewith are outstanding or unpaid, or any amounts are owed to the Town or
the owner(s) of any Subordinate Bonds as a result of the exercise of its option to cure any default
under the Indenture, a failure to make a payment of principal of or interest on any Subordinate
Bonds (as defined below) or additional bonds secured on a parity therewith shall not alone be
considered an Event of Default under the Indenture and no such Special Record Date shall be
established, but such Subordinate Bonds and such additional bonds, shall continue to bear interest
at the rate specified therefor, without interest on accrued but unpaid interest (except as otherwise
provided in the Indenture). In addition, no payments will be made under the Indenture to owners of
Subordinate Bonds until payments then due with respect to the Series 2003A Bonds and additional
bonds secured on a parity therewith, and additional required deposits to funds and accounts
described in the Indenture, have been made.
Interest is computed on the basis of a 360-day year of twelve 30-day months. The
principal and any premium due in connection with the redemption of this Bond shall be payable at
the principal corporate trust office of U.S. Bank National Association (the "Trustee") currently
located at U.S. Bank Trust National Association in St. Paul, Minnesota. Principal, premium, if any,
and interest shall be paid in any coin or currency of the United States of America which, at the time
of payment, is legal tender for the payment of public and private debts.
The Bonds are issued under and secured by an Amended and Restated Trust
Indenture dated as of October 1, 2003 (the "Indenture") between the Corporation and the Trustee,
which amended and restated a Trust Indenture dated as of July 1, 1998 (the "1998 Indenture"), in
order to refinance certain costs of a project consisting of land and a 50-unit multifamily residential
rental apartment project (the "Project") in Eagle County, Colorado, near the Town of Avon,
Colorado (the "Town") by refunding certain obligations previously issued by the Corporation. One
duly authorized series of Bonds are being issued by the Corporation under the Indenture consisting
of $9,520,000 principal amount of EagleBend Dowd Affordable Housing Corporation Multifamily
Housing Project Refunding Revenue Bonds, Series 2003A (the "Series 2003A Bonds"). The
Corporation has previously issued under the 1998 Indenture, on a basis subordinate to the Series
2003A Bonds, $600,000 aggregate principal amount of its Multifamily Housing Project
Subordinate Revenue Bonds, Series 1998B (the "Series 1998B Subordinate Bonds"), and, on a
basis subordinate thereto, $1,000,000 aggregate principal amount of its Multifamily Housing
Project Subordinate Revenue Bonds, Series 1998C (the "Series 1998C Subordinate Bonds" and,
together with the Series 1998B Subordinate Revenue Bonds, the "Subordinate Bonds") (the Series
2003A Bonds and the Subordinate Bonds are collectively referred to hereinafter as the 'Bonds").
THIS BOND SHALL NOT BE A DEBT OR INDEBTEDNESS OF THE
TOWN OF AVON, THE STATE OF COLORADO OR ANY POLITICAL SUBDIVISION
THEREOF WITHIN THE MEANING OF ANY PROVISION OR LIMITATION OF THE
4
CONSTITUTION OR STATUTES OF THE STATE OF COLORADO, AND SHALL
NEVER CONSTITUTE NOR GIVE RISE TO A PECUNIARY LIABILITY OF THE
TOWN, THE STATE OR ANY POLITICAL SUBDIVISION THEREOF OR A CHARGE
AGAINST THEIR GENERAL CREDIT OR TAXING POWERS. THE CORPORATION
HAS NO TAXING POWER.
If the Corporation deposits or causes to be deposited with the Trustee funds
sufficient to pay the principal or redemption price of any Bonds becoming due at maturity, by call
for redemption, or otherwise, together with the premium, if any, and interest accrued to the due
date, interest on such Bonds will cease to accrue on the due date, and thereafter the owners will be
restricted to the funds so deposited as provided in the Indenture.
If an Event of Default as defined in the Indenture occurs, the principal of all Bonds
issued under the Indenture may be declared due and payable upon the conditions and in the manner
and with the effect provided previously herein and in the Indenture.
No recourse shall be had for the payment of the principal or redemption price
of, or premium, if any, or interest on, this Bond, or for any claim based hereon or on the
Indenture, against any member, officer, agent or employee, past, present or future, of the
Corporation, the Town or of any successor body, as such, either directly or through the
Corporation, the Town or any such successor body, under any constitutional provision,
statute or rule of law, or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise.
THIS BOND IS SUBJECT TO REDEMPTION PRIOR TO MATURITY AS
FURTHER DESCRIBED HEREIN.
The Subordinate Bonds and any additional bonds secured on a parity therewith or
subordinate thereto are in all respects junior and subordinate to the Series 2003A Bonds and any
additional bonds secured on a parity therewith, and except as otherwise provided in the Indenture,
all Bonds of a series issued under the Indenture are in all respects equally and ratably secured
thereby.
The Bonds and any additional bonds are issued under and are secured by and
entitled to the protection of the Indenture, to which reference is made for a description of the
respective priorities and security pledged for payment of the Bonds of each series; the respective
rights of the owners of the Bonds of each series; the rights and obligations of the Corporation; the
rights, duties and obligations of the Trustee; the provisions relating to amendments to and
modifications of the Indenture; and the terms and conditions upon which additional bonds or other
indebtedness may be issued thereunder. Such additional bonds or other indebtedness may be issued
by the Corporation to finance additional facilities under the Indenture and to refund all or any part
of the Bonds. The owner of this Bond shall have no right to enforce the provisions of the
Indenture, or institute action to enforce the covenants thereof or rights or remedies
thereunder, except as provided in the Indenture.
5
A security interest and lien on the Project refinanced by the proceeds of the Series
2003A Bonds has been created and granted by the Corporation in favor of the Trustee for the
benefit of the owner or owners of this Bond and of the series of which it forms a part pursuant to a
First Deed of Trust, Security Agreement, Financing Statement, and Assignment of Rents and
Revenues dated as of October 1, 2003 from the Corporation to the Public Trustee of Eagle County,
Colorado for the benefit of the Trustee (the "Deed of Trust"). This Bond is an obligation of the
Corporation secured by (a) a pledge of the Funds and Net Revenues (as defined in and with the
exceptions provided in the Indenture) and, with the exceptions and priorities provided in the
Indenture, all trust accounts created under the Indenture, and (b) the lien and security interest on the
Project, in each case subject to the provisions of the Indenture and the respective Deeds of Trust.
Optional Redemption in Whole or in Part. Bonds of this series are subject to
redemption prior to maturity at the option of the Corporation, in whole or in part and if in part by
lot, on any date, upon one Business Day's notice, such redemptions to be made at the redemption
price of 100% of the principal amount thereof, plus interest accrued to the redemption date, plus the
premium, if any, due in accordance with the terms of the Supplemental Agreement.
Sinking Fund Redemption. Bonds of this series are also subject to mandatory
sinking fund redemption prior to maturity, in part by lot, on the dates and in the principal amounts
specified below at a price equal to 100% of the principal amount of each Bond so redeemed, plus
interest accrued to the redemption date:
June 1 of the December 1 of Sinking Fund Redemption
Year the Year Amount
[To be completed in accordance with
Section 4.04 of the Indenture.]
At the option of the Corporation, the principal amount of Series 2003A Bonds required to be
redeemed pursuant to mandatory sinking fund payments may be reduced, in inverse chronological
order, by the principal amount of such Bonds which shall have been delivered to the Trustee for
cancellation or which shall have been retired (otherwise than through the operation of the sinking
fund payments).
Extraordinary Mandatory Redemption in Whole or in Part. Bonds of this
series are subject to mandatory redemption prior to maturity in whole or in part and if in part by lot,
on any date at a redemption price equal to 100% of the principal amount thereof, plus interest
6
accrued to the redemption date, if one or more of the following events shall have occurred in
accordance with Section 4.05 of the Indenture:
(a) any damage or destruction to the Project;
(b) any condemnation or taking of the Project.
Any redemption under the preceding paragraphs shall be made as provided in the
Indenture upon not more than 30 days' nor less than 15 days' notice to the Bondholder. Notice of
the call for any such redemption, identifying the Bonds to be redeemed, will be given by mailing
copies of such notice to the registered owners of Bonds to be redeemed at their addresses as they
appear on the registry books maintained by the Trustee. All Bonds so called for redemption will
cease to bear interest on the specified redemption date provided funds for their redemption price
and any accrued interest payable on the redemption date are on deposit at the principal place of
payment at that time. Notice of optional redemption may be conditioned upon the deposit of
moneys with the Trustee before the date fixed for redemption and such notice shall be of no effect
unless such moneys are so deposited and provided further that in the event moneys sufficient for the
redemption are not on deposit five business days prior to the scheduled redemption date, then the
redemption shall be canceled and on such date of cancellation notice shall be mailed to the holders
of such Bonds to be redeemed, by overnight mail, notifying them that the redemption has been
canceled.
Any moneys deposited and held by the Trustee for the benefit of claimants, if any,
for three years after the date on which payment therefor became due shall be repaid to the
Corporation, unless there is a dispute as to the payment thereof, and thereupon and thereafter no
claimant shall have any rights to or in respect of such moneys.
This Bond is transferable by the registered owner hereof or his duly authorized
attorney only in minimum denominations of $100,000 to transferees who have delivered to the
Trustee and the Corporation a duly executed certificate of qualified investor in the form attached
hereto, or as otherwise provided in the Indenture at the principal corporate trust office of the
Trustee, upon surrender of this Bond, accompanied by a duly executed instrument of transfer in
form and with guaranty of signature satisfactory to the Trustee, subject to such reasonable
regulations as the Corporation or the Trustee may prescribe, and upon payment of any taxes or other
governmental charges incident to such transfer. Upon any such transfer a new registered Bond of
the same maturity and in the same aggregate principal amount will be issued to the transferee. The
person in whose name this Bond is registered shall be deemed the owner hereof for all purposes,
and the Corporation and the Trustee shall not be affected by any notice to the contrary. The
Registered Owner agrees that it will duly note on the Schedule hereto all payments of principal or
interest made hereon on that it will not transfer or otherwise dispose of this Bond unless and until
all such notations have been duly made.
In any case where the date of maturity of interest on or principal of the Bonds or the
date fixed for redemption of any Bonds shall be a Saturday or Sunday or a legal holiday or a day on
which banking institutions in the city of payment are authorized by law to close, then payment of
7
interest or principal or redemption price need not be made on such date but may be made on the
next succeeding business day with the same force and effect as if made on the date of maturity or
the date fixed for redemption.
This Bond is not valid unless the Trustee's Certificate of Authentication endorsed
hereon is duly executed.
IN WITNESS WHEREOF, the Corporation has caused this Bond to be executed
in its name by the manual or facsimile signature of its President or any Vice-President and its
corporate seal or a facsimile thereof to be affixed, imprinted, lithographed or reproduced hereon and
attested to by the manual or facsimile signature of its Secretary.
EAGLEBEND DOWD AFFORDABLE
HOUSING CORPORATION
[SEAL]
By:
President
Attest:
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Date of Authentication
This Bond is one of the Bonds, of the Series designated herein, described in the
within-mentioned Indenture. Printed hereon or annexed hereto is the complete text of the opinion
of bond counsel, Hogan & Hartson L.L.P., a signed copy of which, dated the date of original
issuance of such Bonds, is on file with the undersigned.
U.S. BANK NATIONAL ASSOCIATION,
Trustee
By
Authorized Representative
ABBREVIATIONS
The following abbreviations, when used in the Inscription on the face of this Bond,
shall be construed as though they were written out in full according to applicable laws or
regulations.
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants
in common
UNIFORM GIFT
MIN ACT - Custodian
(Cust) (Minor)
under Uniform Gifts to Minors Act
(State)
Additional abbreviations may also be used though not in the above list.
9
[FORM OF ASSIGNMENT]
For value received, the undersigned hereby sells, assigns and transfers unto
the within Bond of EagleBend Dowd Affordable Housing Corporation and all
rights thereunder, and hereby irrevocably constitutes and appoints
attorney to transfer the said Bond on the Bond Register, with full power of
substitution in the premises.
Dated:
Signature Guaranteed:*
NOTICE: The Assignor's signature to this assignment must correspond with the
name as it appears upon the face of the within Bond in every particular without alteration or any
change whatever.
* Signature guaranty must be made by a guarantor institution participating in the Securities
Transfer Agents Medallion (STAMP) Program.
10
[SCHEDULE]
Date of Redemption I Amount of Redemption I Principal Amount
Payment Payment Outstanding
11
[FORM OF CERTIFICATE OF QUALIFIED INVESTOR]
Eaglebend Dowd Affordable Housing Corporation
U.S. Bank National Association, as Trustee
RE: Eaglebend Dowd Affordable Housing Corporation Multifamily Housing Project
Refunding Revenue Bonds, Series 2003A
Please be advised that the undersigned (the "Purchaser") is purchasing the captioned
Bonds (the "Bonds"). In the event that the undersigned transfers such Bonds, the undersigned
shall comply with all provisions of the Indenture of Trust dated as of October 1, 2003 (the
"Indenture") between the Eaglebend Dowd Affordable Housing Corporation (the "Corporation"),
and U.S. Bank National Association, as Trustee (the "Trustee") as described in the Bonds. In
connection with the purchase by the Purchaser of the captioned Bonds, relating to the Bonds, the
Purchaser hereby certifies as follows:
1. The undersigned acknowledges that it is one of the following:
(i) a bank as defined in Section 3(a)(2) of the Securities Act of 1933 (the
"Securities Act"), or savings and loan association or other institution as defined in Section
3(a)(5)(A) of the Securities Act, whether acting in its individual or fiduciary capacity;
broker or dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934
(the "Exchange Act"); insurance company as defined in Section 2(13) of the Securities
Act; insurance company as registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of that Act; Small Business
Investment Company licensed by the U.S. Small Business Administration under Section
301(c) or (d) of the Small Business Investment Act of 1958; plan established and
maintained by a state, its political subdivision, or any agency or instrumentality of a state
or its political subdivision, for the benefit of its employees, if such plan has total assets in
excess of $5,000,000; employee benefit plan within the meaning of the Employee
Retirement Income Security Act of 1974 if the investment decision is made by a plan
fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and
loan association, insurance company, or registered investment adviser, or if the employee
benefit plan has total assets in excess of $5,000,000 or, if a self directed plan, with
investment decisions made solely by persons that are accredited investors; or
(ii) a private business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940 (the "Investment Advisers Act"); or
(iii) an organization described in Section 501(c)(3) of the Internal Revenue
Code with total assets in excess of $5,000,000; or
(iv) one or more of the following, as indicated, that it is acting for its own
account or the accounts of other Qualified Institutional Buyers and that it in the aggregate
owns and/or invests on a discretionary basis at least $100 million in securities:
12
(a) an insurance company, as defined in Section 2(13)
of the Securities Act;
(b) an investment company registered under the
Investment Company Act of 1940, as amended, or
any business development company as defined in
Section 2(a)(48) of that Act;
(c) a Small Business Investment Company licensed by
the U.S. Small Business Administration under
Section 301(c) or (d) of the Small Business
Investment Act of 1958;
(d) a plan established and maintained by a state, its
political subdivision or any agency or
instrumentality of a state or its political
subdivisions, for the benefit of its employees;
(e) an employee benefit plan within the meaning of
Title I of the Employee Retirement Income Security
Act of 1974;
(f) a trust fund whose trustee is a bank or trust
company and whose participants are exclusively
plans of the types identified in Paragraph (d) or (e)
above, and not a trust fund that includes as
participants individual retirement accounts or H.R.
10 plans;
(g) a business development company as defined in
Section 202(a)(22) of the Investment Advisers Act;
(h) an organization described in Section 501(c)(3) of
the Internal Revenue Code, a corporation (other
than a bank as defined in Section 3(a)(2) of the
Securities Act or a savings and loan association or
other institution referenced in Section 3(a)(5)(A) of
the Securities Act or a foreign bank or savings and
loan association or equivalent institution),
partnership or Massachusetts or similar business
trust; or
(i) an investment adviser registered under the
Investment Advisers Act; or
13
(j) a dealer registered pursuant to Section 15 of the
Exchange Act, acting for its own account or the
accounts of other qualified institutional buyers, that
in the aggregate owns and invests on a discretionary
basis at least $10 million of securities of issuers that
are not affiliated with the dealer, provided that
securities constituting the whole or a part of an
unsold allotment to or subscription by a dealer as a
participant in a public offering shall not be deemed
to be owned by such dealer; or
(v) a dealer registered pursuant to Section 15 of the Exchange Act acting in a
riskless principal transaction on behalf of a qualified institutional buyer; or
(vi) an investment company registered under the Investment Company Act,
acting for its own account or for the accounts of other qualified institutional buyers, that
is part of a family of investment companies which own in the aggregate at least $100
million in securities of issuers, other than issuers that are affiliated with the investment
company or are part of such family of investment companies. "Family of investment
companies" means any two or more investment companies registered under the
Investment Company Act, except for a unit investment trust whose assets consist solely
of shares of one or more registered investment companies, that have the same investment
adviser (or, in the case of unit investment trusts, the same depositor), provided that, for
purposes of this section:
(a) each series of a series company (as defined in Rule
18f-2 under the Investment Company Act) shall be
deemed to be a separate investment company; and
(b) investment companies shall be deemed to have the
same adviser (or depositor) if their advisers (or
depositors) are majority-owned subsidiaries of the
same parent, or if one investment company's adviser
(or depositor) is a majority-owned subsidiary of the
other investment company's adviser (or depositor);
or
(vii) an entity, all of the equity owners of which are qualified institutional
buyers, acting for its own account or the accounts of other qualified institutional buyers;
or
(viii) a bank as defined in Section 3(a)(2) of the Securities Act, any savings and
loan association or other institution as referenced in Section 3(a)(5)(A) of the Securities
Act, or any foreign bank or savings and loan association or equivalent institution, acting
14
for its own account or the accounts of other qualified institutional buyers, that in the
aggregate owns and invests on a discretionary basis at least $100 million in securities of
issuers that are not affiliated with it and that has an audited net worth of at least $25
million as demonstrated in its latest annual financial statements, as of a date not more
than 16 months preceding the date of sale under Rule 144A promulgated under the
Securities Act in the case of a U.S. bank or savings and loan association, and not more
than 18 months preceding such date of sale for a foreign bank or savings and loan
association or equivalent institution; or
(ix) any entity that is acquiring the Bonds for the purpose of facilitating
investment therein by "qualified institutional buyers" as defined under Rule 144A
promulgated under the Securities Act of 1933.
2. The Purchaser understands that it will not receive from the EagleBend Dowd
Affordable Housing Corporation (the "Corporation"), the Town of Avon, Colorado (the "Town"),
Hogan & Hartson L.L.P. as Bond Counsel ("Bond Counsel"), their governing bodies, their
members or any of their officers, employees, partners or agents any information with respect to
the use of the proceeds of the Bonds and the Project, the Improvement Project (both as defined in
the Indenture), the Bonds, the provisions for payment thereof, the security therefor or the
sufficiency of such provisions for payment thereof and security therefor, except information that
is contained in the Indenture, in the Deed of Trust (as defined in the Indenture) and in the other
documentation and items to be executed or delivered in connection with the issuance of the
Bonds.
Copies of each of the documents referred to in the previous paragraph (the "Transaction
Documents") above have been provided to the Purchaser by Corporation or its counsel and
reviewed by the Purchaser prior to its purchase of Bonds (together the "Document Information").
In addition, information, data, financial statements and other matters which have been
specifically requested by the Purchaser from the Corporation (or other sources at the direction of
the Corporation) have been provided to the Purchaser and reviewed by the Purchaser prior to its
purchase of Bonds (the "Additional Information").
3. Neither the Corporation, the Town, their governing bodies, nor any of their
officers, employees, partners or agents or Bond Counsel will have any responsibility to the
Purchaser for the accuracy or completeness of information obtained by the Purchaser from any
source regarding the Project, the Corporation, or its assets, businesses, circumstances, financial
condition and properties, or, regarding the Bonds, the provisions for payment thereof or the
sufficiency of any security therefor (including, but not limited to, payment and security
information with respect to the Bonds), and, in each case, including, without limitation, any
information specifically provided by any of such parties contained in the Document Information.
The Purchaser acknowledges that, as between the Purchaser and such parties: (a) the Purchaser
has assumed responsibility for requesting and obtaining such information and making such
review as the Purchaser has deemed necessary or desirable in connection with its decision to
purchase Bonds, and (b) the Document Information and the Additional Information constitute all
the information and, with the investigation made by the Purchaser (including specifically its
15
investigation of the Corporation and the Project) prior to its purchase of Bonds, all the review
that the Purchaser has deemed necessary or desirable in connection with its purchase of Bonds.
4. The Purchaser has been offered copies of or full access to each of the Transaction
Documents and all documents relating to the terms and conditions of the offering and the
issuance of the Bonds (including, but not limited to, payment and security information with
respect to the Bonds), and all records, reports, financial statements and other information
concerning the Corporation and the Project and pertinent to the source of payment and security
for the Bonds which, as a reasonable investor, the Purchaser has requested and to which, as a
reasonable investor, the Purchaser would attach significance in making investment decisions.
Further, the Purchaser has been afforded the opportunity to ask such questions of representatives
of the Corporation as the Purchaser has deemed necessary in making its investment decisions,
including, but not limited to, the circumstances under which the Bonds may be redeemed, in
whole or in part, prior to their maturity, credit and reinvestment risks associated with redemption
and the credit risks associated with the sources of payments made on, or with respect to, the
Bonds and the limited remedies available to the Purchaser in the event of a default, and has based
its decision to invest in the Bonds solely (i) on its own investigation, including, without
limitation, its review of such documents, records, reports, financial statements and other
information concerning the Corporation, the Project and, to the extent deemed necessary,
discussions with representatives of the Corporation and (ii) in reliance upon the Document
Information and the Additional Information. The Purchaser is familiar with the condition,
financial and otherwise, of the Corporation, the Project, and the Corporation have made available
to the Purchaser the opportunity to request and obtain additional information to verify the
accuracy of the information supplied and to evaluate the merits and risks of an investment in the
Bonds.
5. The Purchaser can bear the economic risk of the purchase of Bonds and has such
knowledge and experience in business and financial matters, including the analysis of a
participation in the purchase of similar investments, as to be capable of evaluating the merits and
risks of the investment represented by the purchase of Bonds and is aware of the intended use of
the proceeds and the risks involved therein.
6. The Bonds purchased by the Purchaser have been purchased for the account of the
Purchaser for investment and not with a present view to the distribution, transfer or resale
thereof. The Purchaser intends to hold such Bonds for its own account and for an indefinite
period of time and does not intend to dispose of all or any portion of such Bonds and understands
that transfer of such Bonds is restricted pursuant to the terms of the Indenture.
7. The Purchaser is duly and legally authorized to purchase obligations such as the
Bonds and the Bonds are a lawful investment for it under all applicable laws.
8. The Purchaser has not relied and will not rely on any action taken by the
Corporation, including, but not limited to, issuance of the Bonds, as evidence that the Bonds or
the Project financed with the proceeds of the Bonds complies with the provisions of any
legislation.
16
9. The Purchaser has carefully read the Document Information and the Additional
Information in its entirety and understands the risks described therein and understands and
acknowledges that there may exist other risks with respect to the Bonds that are not described
therein and understands, and agrees to undertake, any action and costs identified in the Indenture
to be taken and incurred by the Purchaser.
10. The Purchaser acknowledges that no credit rating has been sought or obtained
with respect to the Bonds and acknowledges that the Bonds are a speculative investment and that
there is a high degree of risk in such investment.
11. The Purchaser acknowledges and represents that no trading market now exists for
the Bonds. Further, the Purchaser understands that transfer of the Bonds is restricted pursuant to
the terms thereof and of the Indenture and other sections of this Investor Letter, including, but not
limited to, the requirement that each purchaser or transferee of the Bonds sign an investor letter
substantially identical to this letter and otherwise in form satisfactory to the Corporation and
Bond Counsel prior to the date on which any such sale or transfer is to be completed.
Accordingly, the Purchaser understands that it may need to bear the risks of this investment for
an indefinite time since any sale or transfer prior to the maturity of the Bonds may not be
possible or may be at a price below that which the Purchaser is paying for the Bonds.
12. The Purchaser is sufficiently knowledgeable and experienced in financial and
business matters, including the purchase and ownership of municipal and other tax-exempt
obligations, to be able to evaluate the risks and merits of the investment represented by the
purchase of the Bonds, and is aware of the intended use of the proceeds of the Bonds and the
risks involved therein.
13. The Purchaser understands that (a) the Bonds are not secured by any obligation or
pledge of any moneys received or to be received from taxation or from the State of Colorado or
any political subdivision or taxing authority thereof, and that the Bonds do not represent or
constitute a general obligation, debt, bonded indebtedness or pecuniary obligation of the
Corporation, the Town, the State of Colorado or any political subdivision thereof, and that no
right will exist to have taxes levied by the Town, the State of Colorado or any political
subdivision thereof for the payment of principal of or interest on the Bonds, (b) the Corporation
has no taxing power and (c) the Bonds are special, limited obligations of the Corporation,
payable solely out of and secured by income and revenues related to the Project, as described in
the Indenture, and secured by the Deeds of Trust.
14. The Purchaser will not offer, sell or otherwise dispose of the Bonds, except (i) in
full good-faith compliance with all applicable state and federal securities laws (including, but not
limited to, any offer, sale, transfer, exchange or disposition to an affiliate, fund, trust, pool or
other legal entity with capacity to acquire comparable investment securities) (each a
"Transferee"), (ii) with full and accurate disclosure of all material facts to the prospective
Transferee(s), (iii) either under effective federal and state registration statements (which the
Corporation shall not in any way be obligated to provide) or pursuant to exemptions from such
17
registrations, (iv) in whole, and not in part and (v) to Transferee who agrees to sign an investor
letter substantially identical to this letter and otherwise in form satisfactory to the Corporation
and Bond Counsel.
15. The Purchaser has been informed by the Corporation and agrees that stop transfer
notations may be made on the Bonds or any other documents evidencing ownership of the Bonds
to the effect that the Bonds have not been registered under the Securities Act of 1933 or the
applicable state "blue sky" laws and that the Bonds may not be disposed of unless they are
registered thereunder or are resold or otherwise disposed of pursuant to an exemption from such
registration.
16. It is understood that the Purchaser has undertaken to verify the accuracy,
completeness and truth of any statements made or omitted to be made concerning any of the
material facts relating to this transaction, including information regarding the business and
financial condition of the Corporation and the Project, and including, but not limited to, the
circumstances under which the Bonds may be redeemed prior to their maturity, in whole or in
part, and any credit and reinvestment risks associated with redemption, and the credit risks
associated with the sources of payments made on, or with respect to, the Bonds and the limited
remedies available to the Purchaser in the event of a default. The Purchaser has conducted its
own investigation to the extent it deems necessary. The Purchaser has been offered an
opportunity to have made available to it any and all such information it might request from the
Corporation. On this basis, it is agreed by acknowledgment of this Investor Letter that the
Purchaser hereto is relying solely on the Corporation, and is not relying on any party or person,
including the Town and its governing body, nor any of its officers, employees or agents, or Bond
Counsel, to undertake the furnishing or verification of information relating to this transaction or
to evaluate the merits of the investment in the Bonds.
17. The Purchaser agrees that any government approvals of the Bonds do not
constitute a review or approval by any elected official or the Town or the State of Colorado of the
credit of the Corporation, nor any guaranty by an elected official or the Town or the State of
Colorado of repayment of the Bonds.
All confirmations, affirmations, statements and provisions of the Purchaser in this
Investor Letter are made solely and exclusively for the benefit of the Corporation and Bond
Counsel in connection with its purchase of the Bonds. In no event shall any other party be
entitled to rely in any way upon any such confirmation, affirmation, statement or provision.
The foregoing representation shall survive the execution and delivery to the Purchaser of
the Bonds and the instruments and documents contemplated thereby.
By:
18
Title:
Address for Notices and payment of principal and interest:
Attention:
Tax ID number:
[END OF BOND FORM]
19
L. The Corporation has executed and delivered a First Deed of Trust, Security
Agreement, Financing Statement, and Assignment of Rents and Revenues dated as of October 1,
2003, to secure the Series 2003A Bonds, and has previously executed and delivered a Second Deed
of Trust, Security Agreement, Financing Statement, and Assignment of Rents and Leases dated as
of July 1, 1998 and a Third Deed of Trust, Security Agreement, Financing Statement, and
Assignment of Rents and Leases dated as of July 1, 1998, to secure the Series 1998B Subordinate
Bonds and the Series 1998C Subordinate Bonds, respectively (collectively, the "Deeds of Trust")
to the Public Trustee for Eagle County, Colorado which create liens on the Project for the benefit of
the owners of the Bonds.
M. The execution and delivery of the Bonds and of this Indenture have been
authorized by the Board of Directors of the Corporation and all things necessary to make the Bonds,
when executed by the Corporation and authenticated by the Trustee, valid and binding obligations
of the Corporation and to make this Indenture and the Deeds of Trust valid and binding obligations
of the Corporation have been done.
N. In connection with the issuance of the Series 2003A Bonds, the Corporation
has executed and delivered a Refunding Agreement dated as of October 1, 2003 (the "Refunding
Agreement") with the Trustee, pursuant to which Refunding Agreement the Trustee is to hold
proceeds of the Series 2003A Bonds in trust on behalf of holders of the Series 1998A Bonds and
apply the same to the redemption of the Series 1998A Bonds on January 1, 2005, and the holders of
the Series 1998A Bonds have consented to such redemption at a redemption price equal to 103%.
0. In connection with its purchase of the Series 2003A Bonds, U.S. Bank
National Association is entering into a Supplemental Agreement dated October 22, 2003 (the
"Supplemental Agreement") with the Corporation.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, the Corporation
and the Trustee have executed this Amended and Restated Master Indenture of Trust to amend
and restate the 1998 Indenture in full, and in furtherance thereof, to provide for the payment of
principal or redemption price (as the case may be) in respect of all Bonds issued and outstanding
under this Indenture, together with premium, if any, and interest thereon, the rights of the
Bondholders and the performance of the covenants contained in said Bonds and herein, the
Corporation does hereby sell, assign, transfer, set over and pledge unto, grant and confirm a security
interest in, U.S. BANK NATIONAL ASSOCIATION, Trustee, its successors in trust and its
assigns forever, all and singular the following described property, franchises and income
(collectively, the "Trust Estate"):
Granting Clause First. All Funds and accounts created under this Indenture except
the Excess Investment Earnings Fund; provided that the Senior Bond Account of the Bond Fund
shall be available for the payment only of the Series 2003A Bonds and Additional Bonds secured
on a parity therewith; and provided that the funds held in such Funds and accounts are to be used
only for the purposes and in accordance with the instructions and provisions set forth in this
Indenture.
20
Granting Clause Second. All right, title and interest of the Corporation in the Net
Revenues, as hereinafter defined.
Granting Clause Third. Any and all other interests in real and personal property
of every name and nature granted to the Trustee within the Deeds of Trust and from time to time
hereafter by delivery or by writing of any kind specifically mortgaged, pledged or hypothecated as
and for additional security hereunder by the Corporation or by anyone in its behalf or with its
written consent in favor of the Trustee, which is hereby authorized to receive any and all such
property at any and all times and to hold and apply the same subject to the terms hereof.
Granting Clause Fourth. All right, title and interest of the Corporation in the
Project Agreement and the other Project Documents as defined herein.
TO HAVE AND TO HOLD in trust, nevertheless, for the equal and ratable benefit
and security of all present and future owners of the Bonds issued and to be issued under this
Indenture, without preference, priority or distinction as to lien and in payment or otherwise (except
that the Series 1998B Subordinate Bonds and any Additional Bonds secured on a parity therewith
shall in all respects be junior and subordinate to the Series 2003A Bonds and any Additional Bonds
secured on a parity therewith, and the Series 1998C Subordinate Bonds and any Additional Bonds
secured on a parity therewith shall in all respects be junior and subordinate to the Series 2003A
Bonds, the Series 1998B Subordinate Bonds, and any Additional Bonds secured on a parity
therewithand except as otherwise expressly provided herein), of any one Bond over any other Bond
upon the terms and subject to the conditions hereinafter set forth.
ARTICLE I
DEFINITIONS AND REPRESENTATIONS OF THE CORPORATION
Section 1.01. Definitions. In this Indenture and any indenture supplemental hereto
(except as otherwise expressly provided or unless the context otherwise requires) the singular
includes the plural, the masculine includes the feminine, and the following terms shall have the
meanings specified in the foregoing recitals:
Board
Bonds
Corporation
Project Agreement
Refunding Agreement
Series 2003A Bonds
Series 2003A Bonds
Series 1998B Subordinate Bonds
Series 1998C Subordinate Bonds
Town
Trust Estate
In addition, the following terms shall have the meanings specified in this Article,
unless the context otherwise requires:
"Accountant" means an independent certified public accountant or firm of such
accountants duly licensed to practice and practicing as such under the laws of any state of the
United States or of the District of Columbia.
21
"Affiliate" means any Person controlling, controlled by, or under common control
with, the Corporation or having a majority of the members of its governing body in common with
the governing body of the Corporation. One Person shall be deemed to control another if it owns
more than 50% of the outstanding voting stock of or other equity interests in the other, or it has the
power to elect more than 50% of the governing body of the other; and such control may be
exercised by one Person over another directly, indirectly through control over a third parry, or
jointly with one or more controlled third parties.
"Additional Bonds" means Additional Bonds issued and secured under this
Indenture as provided in Section 3.02 hereof. Additional Bonds does not include Indebtedness
owing to the Town or the owner(s) of Subordinate Bonds resulting from the exercise by the Town
or the owner(s) of Subordinate Bonds of their rights provided in Section 10.02 hereof.
"Approved Depository" shall mean FirstBank of Avon and its successors
appointed by the Trustee.
"Authorized Newspaper" means The Bond Buyer, or its successor, and if The
Bond Buyer or its successor is no longer in business, then a newspaper of general circulation in the
Borough of Manhattan, City of New York.
"Beneficial Owner" means any person who, through any contract, arrangement or
otherwise, has or shares investment power with respect to any of the Series 2003A-B Bonds,
which includes the power to dispose, or direct the disposition, of any of the Series 2003A-B
Bonds, and who has filed his or her name and address with the Trustee for purposes of receiving
certain notices hereunder.
"Bondholder" or "holder of Bonds" or "owner of Bonds" means the registered
owner of any Bond and, with respect to the Series 2003A Bonds, any Beneficial Owner.
"Bondholder Representative" means the person or persons who are designated by
a Majority Interest of the Series 2003A Bonds to act on behalf of the Bondholders as provided in
Section 4.02 of this Indenture. U.S. Bank national Association shall be the initial Bondholder
Representative.
'Bond Counsel' means counsel of national recognition in the field of tax-exempt
obligations and public finance reasonably acceptable to the Trustee, and the Corporation.
hereof.
"Bond Fund" means the trust account of that name created pursuant to Section 4.02
"Bond Register" and "Bond Registrar," in respect of a particular Series of Bonds,
have the respective meanings specified in Section 2.03 hereof.
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"Bond Year" means the period commencing the day after the principal payment
date of each calendar year and ending on the principal payment date during the next calendar year,
provided that the first such Bond Year as to any series shall commence on the date of the issuance
of the Bonds of such series.
"Business Day" means a day which is not (a) a Saturday, Sunday or legal holiday on
which banking institutions in (i) the State, or (ii) the State of New York are authorized or required
by law to close or (b) a day on which the New York Stock Exchange is closed.
"Closing Date" means the date on which there is an exchange of the Bonds for the
proceeds representing the purchase price of the Bonds.
"Code" means the Internal Revenue Code of 1986, or its successor provisions as
amended at the time in question and the regulations promulgated thereunder.
"Corporation Representative" means the president of the Corporation or other
person designated to act on behalf of the Corporation, as evidenced by a written certificate
furnished to the Trustee containing the specimen signature of such person and signed for the
Corporation by any two of its officers.
"Debt Service" as to a series of Bonds means the scheduled amount of interest and
amortization of principal payable on Outstanding Bonds of such series during the period of
computation, including any mandatory sinking fund redemption.
['Debt Service Coverage Ratio" means the ratio of Net Operating Income to
Debt Service for the 2003A Bonds.]
"Deeds of Trust" means collectively, the First Deed of Trust, Security Agreement,
Financing Statement, and Assignment of Rents and Revenues dated as of October 1, 2003, the
Second Deed of Trust, Security Agreement, Financing Statement, and Assignment of Rents and
Leases dated July 1, 1998, and the Third Deed of Trust, Security Agreement, Financing Statement,
and Assignment of Rents and Leases dated July 1, 1998; each from the Corporation to the Public
Trustee for Eagle County, Colorado, for the benefit of the Trustee, securing the payments on the
Bonds, each as supplemented or amended to the date in question.
"Event of Default" means any of the events described in Section 10.01 hereof.
"Excess Investment Earnings" is as defined in Section 148 of the Code.
"Excess Investment Earnings Fund" means the trust account of that name created
by Section 4.02 of this Indenture.
"Fiscal Year" means each calendar year.
23
"Full Insurable Value" shall mean, for purposes of Section 4.05(c)(9) hereof, the
actual replacement value exclusive of architectural permits and similar one-time costs and costs of
excavation, foundations and footings], against loss or damage by fire, commotion, vandalism,
malicious mischief, aircraft, vehicles, boiler explosion, smoke and all other risks normally covered
by such insurance.
"Funds" means the Bond Fund, the Revenue Fund, and the Excess Investment
Earnings Fund, and the accounts, if any, established therein.
"Indebtedness" means with respect to liabilities of the Corporation, (a) all liabilities
for borrowed money; (b) all direct or indirect guaranties of the debt of any other Person; (c) the
present value of all payments due under any lease or under any other arrangement for retention of
title (discounted in accordance with generally accepted accounting principles) if such lease or other
arrangement is in substance (i) a financing lease (including any lease under which the Corporation
has or will have an option to purchase the property subject thereto at a nominal amount or an
amount less than a reasonable estimate of the fair market value of such property at the date of such
purchase or the term of which approximates or exceeds the estimated useful life of the property
subject thereto), (ii) an arrangement for the retention of title for security purposes, or (iii) an
installment purchase; and (d) the unpaid amount of any obligation of the Corporation to public
authorities for deferred tap or capacity fees.
"Indenture" means this Trust Indenture as amended or supplemented at the time in
question.
"Independent" means, with respect to any Person, one which is not and does not
have a partner, director, officer, member or substantial stockholder (each, a "controlling Person")
who is a member of the board of the Corporation or Affiliate, or an officer or employee of the
Corporation or Affiliate. A Person which is or has a controlling Person who is an officer or
member of the board of the Corporation or Affiliate (but not an employee of either) may
nevertheless be deemed Independent, if notice thereof is given to the holders of the Bonds and the
Majority Interest approve such appointment.
"Independent Engineer" means an Independent engineer or architect or
engineering or architectural firm selected by the Corporation and qualified to practice the profession
of engineering or architecture under the laws of the State and who or which is not a full-time
employee of the Corporation.
"Insurance Consultant" means an Independent insurance consultant or agency
selected by the Corporation and acceptable to the Trustee, who is licensed as such under the laws of
the State and who or which is not a full-time employee of the Corporation.
"Interest Payment Date," in respect of a particular series of Bonds, means the
stated maturity date of an installment of interest on the Bonds of such series.
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"Majority Interest" means (i) during the period of time any Series 2003A Bonds or
any Additional Bonds secured on a parity therewith are Outstanding, the Bondholders of at least
51% in aggregate principal amount of Series 2003A Bonds and Outstanding Additional Bonds
secured on a parity therewith; and (ii) during the period of time no Series 2003A Bonds or
Additional Bonds secured on a parity therewith are Outstanding, the Bondholders of at least 51% in
aggregate principal amount of the remaining Outstanding Bonds and the Town or certain owners of
Subordinate Bonds if the Town or such owners of Subordinate Bonds have advanced any moneys
pursuant to its rights to cure under Section 10.02 hereof.
"Management Consultant" means any Independent nationally or regionally
recognized individual or firm selected by the Corporation possessing significant management
consulting experience with respect to housing.
"Monthly Payments" as to a series of Bonds means monthly payments to be made
from time to time by the Corporation pursuant to the Indenture in an amount equal to the sum of
(i) the quotient obtained by dividing the amount of principal of such Bonds due and payable on the
next succeeding payment date for principal (whether at their stated maturities or by mandatory
sinking fund redemption) by six, and (ii) the quotients obtained by dividing the interest on such
Bonds due and payable on the next succeeding Interest Payment Date by six; [except with respect to
the initial monthly payments to be made hereunder with respect to principal and interest payable on
the Series 2003A Bonds on June 1, 2004, which shall be in an amount equal to the quotient
obtained by dividing the interest or principal on such Bonds due and payable on the next succeeding
Interest Payment Date by eight, and except for the monthly payments in respect of principal of the
Series 2003A Bonds for the year ending December 1, 2018, which shall be in the amount of
$ , or such lesser principal amount as shall remain outstanding on such date].
"Mortgaged Property" means any property upon which a lien or security interest is
granted to the Trustee pursuant to the Deeds of Trust or this Indenture.
"Net Loss Proceeds" means with respect to any insurance payment or
condemnation award or sale to a potentially taking governmental authority under threat of
condemnation, the amount remaining therefrom after payment of all expenses (including attorneys'
fees and any extraordinary fee or expense of the Trustee) incurred in the collection thereof.
"Net Operating Income" means, for any period, the total aggregate income
generated by the Project, including interest earned on replacement and operating reserves held in
accordance with the Supplemental Agreement, before interest expense, taxes, depreciation or
amortization, determined in conformity with GAAP and excluding operating expenses and any
other reserves required by the Supplemental Agreement, less any amounts expended from such
replacement and operating reserves.
"Net Revenues" means (a) Project Revenues, less (b) Operation and Maintenance
Expenses; for purposes of determining the Net Revenues to be transferred by the Corporation each
month pursuant to Section 4.06 hereof, Operation and Maintenance Expenses for such month shall
25
be calculated based upon the monthly budgeted amount in the Operating Budget, plus any
Operating and Maintenance Expenses then due and owing in excess of such budgeted amount.
"Operating Budget" means the Corporation's budget for Project Revenues and
Operation and Maintenance Expenses filed annually and any amendments thereto, all in accordance
with Section 5.16 hereof.
"Operation and Maintenance Expenses" means such reasonable and necessary
current expenses of the Corporation, paid or accrued, for operation, maintenance and repair of the
Project as may be determined by the Corporation, and the term may include, except as limited by
contract or otherwise limited by law, without limiting the generality of the foregoing:
(1) legal and overhead expenses of the Corporation directly related and
reasonably allocable to the administration of the Project;
(2) fidelity bond and insurance premiums appertaining to the Project or
a reasonably allocable share of a premium of any blanket bond or policy pertaining to the
Project;
(3) fees for contractual services, management and professional services,
salaries, administrative expenses, and costs of labor appertaining to the Project;
(4) the costs incurred in the collection of all or any part of the Project
Revenues;
(5) any costs of utility services furnished to the Project; and
(6) payments of taxes, payments in lieu of taxes, assessments imposed
by any governmental unit or public corporation, or any monthly deposits to an escrow
established for any such purposes.
"Operation and Maintenance Expenses" does not include:
(a) any allowance for depreciation;
(b) any costs of Project renewals or replacements, major repairs,
reconstruction, improvements, extensions, or betterments if of the type funded with reserves
held in accordance with the Supplemental Agreement;
(c) any accumulation of reserves for capital replacements;
(d) any reserves for operation, maintenance, or repair of the Project;
(e) any allowance for the redemption of the Bonds, or the payment of
any interest thereon;
26
(f) any liabilities incurred in the acquisition or improvement of any
properties comprising the Project or any combination thereof; and
(g) any other type of legal liability not based on contract.
"Opinion of Counsel" means a written opinion of Independent legal counsel, who
may be counsel to the Corporation or the Trustee.
"Outstanding" in connection with Bonds (or a series of Bonds) means, as of the
time in question, all Bonds (or all Bonds of such series) authenticated and delivered under the
Indenture, except:
A. Bonds for the payment or redemption of which the necessary amount
shall have been or shall concurrently be deposited with the Trustee or for which provision
for the payment of which shall have been made in accordance with Article XIV hereof;
provided that, if such Bonds are being redeemed prior to maturity, the required notice of
redemption shall have been given or provisions satisfactory to the Trustee shall have been
made therefor;
B. Bonds in substitution for which other Bonds have been authenticated
and delivered pursuant to Article II hereof; and
C. For purposes of any consent or other action to be taken by the
owners of a majority or a specified percentage of Bonds hereunder, Bonds held by or for the
account of the Corporation, the Corporation or any Person controlling, controlled by or
under common control with any of them.
"Paying Agent" means, in respect of a particular series of Bonds, the Person or
Persons authorized by the Corporation to pay the principal of (and premium, if any, on), or interest
on, such Bonds on behalf of the Corporation.
"Payments" means the Monthly Payments and the additional payments payable by
the Corporation hereunder pursuant to Section 5.04 hereof.
"Permitted Encumbrances" means this Indenture, the Project Agreement, and the
Deeds of Trust, and as of any particular time,
(1) liens for taxes and special assessments not then delinquent, or
delinquent but being contested by the Corporation in good faith in accordance with this
Indenture and upon which execution is stayed;
(2) utility, access and other easements and rights-of-way, restrictions and
exceptions that an Independent Engineer and a Management Consultant certify in writing
27
will not interfere with or impair the operation of the Project (or, if it is not being operated,
the operation for which it was designed or last modified) or the Net Revenues;
(3) any mechanic's, laborer's, materialman's, supplier's, or vendor's, lien
or right in respect thereof if payment is not yet due under the contract in question, or if the
lien or right is being contested by the Corporation in good faith in accordance with this
Indenture and upon which execution is stayed;
(4) such minor defects, irregularities, encumbrances, easements, rights-
of-way and clouds on title as normally exist with respect to properties similar in character to
the Project as shown on Exhibit B to the Deeds of Trust or which do not, in the written
Opinion of Counsel or of an Independent Engineer, individually or in the aggregate,
materially interfere with or impair Net Revenues or the operation of the Project (or, if it is
not being operated, the operation for which it was designed or last modified) the property
affected by the Indenture for the purpose for which it was acquired or is held by the
Corporation;
(5) easements, restrictions and encumbrances shown by the Deeds of
Trust; and
(6) applicable building and zoning laws, ordinances and state and
federal regulations.
"Person" or "Persons" means an individual, firm, corporation, partnership,
company, association, joint stock company, trust, body politic or any other unincorporated
organization or any trustee, receiver, assignee, or other similar representative thereof.
"Plans" means the general plans and specifications for the construction or the
restoration of the Project, as applicable, as approved by the Corporation, and filed in the offices of
the Trustee, together with such modifications thereof and additions thereto as are reasonably
determined by the Corporation to be necessary or desirable for the completion or the restoration of
the Project, as the case may be, as contemplated by this Indenture, and as are approved by the
Bondholder Representative, and filed with the Trustee.
"Project" means (i) the Project Site, (ii) the Project Equipment, (iii) a 50-unit
multifamily rental housing facility located on the Project Site and (iv) any additions or alterations
thereto which are permitted herein.
"Project Documents" means, for purposes of this Indenture, the Project Agreement,
and the Property Management Agreement dated as of July 1, 2003 between the Corporation and the
Project Manager, as the same may be amended from time to time.
"Project Equipment" means those items of furniture, machinery, equipment or
other personal property acquired and installed in connection with the Project or which are acquired,
financed or re-financed in whole or in part with proceeds from the sale of the Bonds and any item
28
of machinery, furniture, equipment or other personal property acquired and installed in substitution
or replacement for any of the foregoing, less such furniture, machinery, equipment or other personal
property as may be released from this Indenture pursuant to this Indenture or taken by exercise of
the power of eminent domain as provided in this Indenture, as such items may at any time exist, but
not including any items of furniture, machinery, equipment or other personal property hereafter
acquired and installed by the Corporation under the provisions of Section 5.19 of this Indenture.
"Project Manager" means Corum Real Estate Group, Inc., a Colorado
corporation, and its successors appointed by the Corporation; provided that the Corporation may
appoint more than one Person to serve as Project Manager at any one time.
"Project Revenues" means (a) all revenues, income, receipts and money actually
received in any period (other than proceeds of borrowing and interest earned thereon if and to the
extent such interest is required to be excluded by the terms of the borrowing), if any, from rates,
fees, tolls, rentals and charges or any combination thereof for the services or privileges furnished
by, with or from the use of the Project; (b) Net Loss Proceeds; (c) all rights (including proceeds)
from accounts, general intangibles, contract rights and instruments (all as defined in Article 9 of the
Colorado Uniform Commercial Code), choses in action, goodwill, leases, licenses, software
programs, accounting and bookkeeping records related to the Project; and (d) all income or other
gain, if any, from any investment of Net Revenues and from balances in the Funds and Accounts
established under this Indenture; provided that Project Revenues shall not include any security
deposits required to be held for the benefit of any Project tenants until such time as such amounts
may be lawfully applied by the Corporation to the payment of costs in connection with the Project.
"Project Site" means the real estate, located in Eagle County, Colorado and more
particularly described in Exhibit A attached hereto.
"Property Insurance and Award Fund" means the trust account of that name
created pursuant to Section 4.02 of this Indenture.
"Qualified Renter" means a natural person or persons meeting certain
qualifications established by the Corporation from time to time, needing to occupy dwelling
accommodations in the Project at such rentals within such persons' financial reach that enable such
persons to live in safe and sanitary or uncongested dwelling accommodations and otherwise
consistent with the public purposes of the Housing Authorities Law, CRS §§ 29-4-201 et seq.,
executing a rental agreement with the Corporation obligating such natural person or persons to
occupy a dwelling accommodation included in the Project as their sole place of residence and under
which such natural person or persons represent that he or she shall not sublease all or any part of
such dwelling accommodation or engage in any other business activity on or in such dwelling
accommodation; provided that by resolution of the Corporation, units in the Project may be rented
to other than natural persons, including employers in the vicinity of the Town, under such terms and
conditions as are substantially equivalent to those in leases to natural persons who are members of
the general public, in which the corporate or other entity covenants to sublet such unit or units only
29
to natural persons who meet the current qualifications established by the Corporation, all subject to
the provisions of Section 5.14 hereof.
"Regular Record Date" means, in respect of a particular series of Bonds, the
fifteenth day (whether or not a Business Day) of the calendar month next preceding each Interest
Payment Date.
"Related Affiliate" has the meaning given in Section 2.04 hereof.
this Indenture.
"Revenue Fund" means the trust account of that name created by Section 4.02 of
"Special Record Date" means, in respect of a particular series of Bonds, such date
as may be fixed for the payment of defaulted interest in accordance with Section 2.07 of this
Indenture.
"State" means the State of Colorado.
"Subordinate Bonds" means the Series 1998B Subordinate Bonds, the Series
1998C Subordinate Bonds and any Additional Bonds issued and secured on a parity with either of
such series of Bonds.
"Surplus Account" means the trust account of that name in the Revenue Fund
created under Section 4.02 of this Indenture.
"Term" means the duration of this Indenture, which is from the execution and
delivery hereof to the date the Corporation has satisfied all of its obligations under this Indenture,
unless sooner terminated in accordance with the provisions hereof.
"Town" means the Town of Avon, Eagle County, Colorado.
"Trustee" means U.S. Bank National Association, and its successor for the time
being in the trust hereunder and any Co-Trustee appointed in accordance with Section 11.16 of this
Indenture.
The words "hereof," "herein," "hereto," "hereby" and "hereunder" (except in the
form of Bond) refer to the entire Indenture.
Every "request," "order," "demand," "application," "appointment," "notice,"
"statement," "certificate," "consent" or similar action hereunder by the Corporation shall, unless the
form thereof is specifically provided, be in writing signed by the Corporation Representative.
Section 1.02. Representations of the Corporation. The Corporation makes the
following representations as the basis for its undertakings herein contained:
30
(a) The Corporation is a nonprofit corporation duly organized and
existing under the laws of the State, is authorized pursuant to its articles of incorporation
and bylaws to issue the Bonds and to enter into the transactions contemplated by this
Indenture, the Project Agreement, and the Deeds of Trust and to carry out its obligations
hereunder and thereunder, and has duly authorized, executed and delivered this Indenture,
the Deeds of Trust and the Other Project Documents.
(b) The Corporation will utilize the proceeds of the Bonds to provide for
the financing or refinancing of the Project, for the purpose of providing dwelling
accommodations at rentals within the means of persons of low or moderate income. The
proceeds of the Series 2003A Bonds will be used for the current refunding of the Series
1998A Bonds.
(c) Neither the execution and delivery of the Bonds, this Indenture, the
Project Agreement, the Deeds of Trust, or the other Project Documents, the consummation
of the transactions contemplated hereby or thereby, nor the fulfillment of or compliance
with the terms and conditions of the Bonds, this Indenture, the Project Agreement, the
Deeds of Trust, or the other Project Documents, conflict with or result in a breach of any of
the terms, conditions or provisions of any restriction or any agreement or instrument to
which the Corporation is now a party or by which it is bound or constitute a default under
any of the foregoing or result in the creation or imposition of any prohibited lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of the
Corporation under the terms of any instrument or agreement.
(d) The Corporation will, prior to commencement of construction, hold
fee simple title to the Project free and clear, subject only to Permitted Encumbrances, and
such title shall be in and remain in the Corporation, except as permitted by Section 14.02
hereof. The Corporation further covenants that it has the right to grant and convey its
interest in the Trust Estate, that such interest is unencumbered, and that it will warrant and
defend generally the title to such interest against all claims and demands, subject to
Permitted Encumbrances.
(e) The Corporation shall not operate the Project in a manner which
would impair the exclusion of the interest on the Bonds or any original issue discount
properly allocable to any owner thereof, from the gross income of the owners thereof for
federal income tax purposes. The Corporation intends to continue to utilize the Project as
dwelling accommodations at rentals within the means of persons of low or moderate
income in accordance with Section 5.14 hereof.
(f) There is no action, suit or proceeding at law or in equity or by or
before any governmental instrumentality or other agency now pending, or, to the best
knowledge of the Corporation, threatened against or affecting the Corporation, or any of its
properties or rights, which, if adversely determined, would affect the validity or
enforceability of the Bonds, this Indenture, the Project Agreement, the Deeds of Trust, or
the other Project Documents, or the Corporation's performance of its obligations hereunder
31
or thereunder, or would materially and adversely impair its right to carry on business
substantially as now conducted or as now contemplated to be conducted, or would
materially and adversely affect its financial condition, assets, properties or operations, and
the Corporation is not in default with respect to any order or decree of any court or any
order, regulation or decree of any federal, state, municipal or other governmental agency,
which default would materially and adversely affect its operation or its properties or the
completion of the construction and equipping of the Project. The Corporation is not in
default in the performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which it is a party.
(g) The operation and design of the Project in the manner presently
contemplated and as described herein will not conflict with any applicable zoning, water or
air pollution or other ordinance, order, law or regulation relating to zoning, building, safety
or environmental quality, which conflict would materially and adversely affect its operation
or the completion of its construction and equipping.
(h) The Corporation has obtained, or will obtain on or before the date
required therefor, all necessary certificates, approvals, permits and authorizations with
respect to the construction and operation of the Project from applicable local, state, and
federal governmental agencies.
ARTICLE II
THE BONDS
Section 2.01. Amounts and Terms - Series 2003A Bonds and Other Series.
Except as provided in Section 2.10 hereof, the Series 2003A Bonds shall be limited to $9,520,000
in aggregate principal amount, and shall contain substantially the terms recited in the form of Bond
above. Other series of Bonds ranking as to source of payment equally and ratably with the Series
2003A Bonds may be issued pursuant to Section 3.02 hereof in such aggregate principal amounts
and may contain such terms and be in such form, not contrary to the Indenture, as may be
determined by the Corporation and expressed in such Bonds.
The Bonds do not constitute a debt or indebtedness of the State or of any political
subdivision thereof, including the Town. The Bonds are obligations of the Corporation, payable
from all sources and revenue of the Corporation secured by (a) a pledge of the Funds and Project
Revenues (as defined in and with the exceptions and priorities provided in this Indenture) and, with
the exceptions and priorities provided in this Indenture, all trust accounts created under this
Indenture, and (b) the lien and security interest on the Project, in each case subject to the provisions
of the respective Deeds of Trust. The Corporation may cause a copy of the text of the opinion of
recognized bond counsel to be printed on or annexed to any of its Bonds, and, upon deposit with the
Trustee of an executed counterpart of such opinion, the Trustee shall certify to the correctness of the
copy appearing on the Bonds by manual or facsimile signature.
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The Series 2003A-B Bonds shall be issuable in fully registered form and in
minimum denominations of $100,000, subject to the further provisions regarding transfer set forth
in Section 2.04 hereof. No Bond shall be issued in any denomination larger than the aggregate
principal amount maturing on the maturity date of such Bond, and no Bond shall be made payable
on more than one maturity date.
The Bonds may bear such other endorsement or legend not unsatisfactory to the
Trustee as may be required to conform to usage or law with respect thereto.
The Series 2003A Bonds shall mature on December 1, 2018 in the aggregate
principal amount of $9,520,000 and shall bear interest at the per annum interest rate of 4.89% to
maturity, unless redeemed prior thereto.
Section 2.02. Interest Accrual. The Bonds of a series shall be dated their date of
authentication and shall bear interest from the Interest Payment Date in respect of that series to
which interest has been paid next preceding the date of authentication, (i) unless the date of
authentication is an Interest Payment Date to which interest has been paid, in which case Bonds
shall be dated and bear interest from the date of authentication, or (ii) unless authenticated after a
Record Date, in which case from such Interest Payment Date or (iii) unless the Bonds are
authenticated prior to the first Interest Payment Date for the Bonds of such series, in which case
such Bonds shall bear interest from the Original Date of such series as shown on the form of the
Bond or as otherwise provided in the supplemental indenture establishing such series. Interest
accrued and unpaid on any Subordinate Bond on the applicable due date shall not bear interest
unless the principal on the Bonds shall have been declared due and payable in which case unpaid
interest shall accrue interest as provided in Section 10.09(b).
Section 2.03. Bond Registrar and Bond Register. The Bonds of a series shall be
registered upon original issuance and upon subsequent transfer or exchange as provided in this
Indenture. Any supplemental indenture may contain such additional provisions regarding the
registration, transfer and exchange of Bonds of a series as are not inconsistent with this Indenture.
The Corporation shall designate, in respect of each series of Bonds, a person to act
as "Bond Registrar" for such series, provided that the Bond Registrar appointed for any series of
Bonds shall be either the Trustee or a person which would meet the requirements for qualification
as a Trustee imposed by Section 11.13 hereof. The Corporation hereby appoints the Trustee its
Bond Registrar in respect of the Bonds. Any other person undertaking to act as Bond Registrar in
respect of a series of Bonds shall first execute a written agreement, in form satisfactory to the
Trustee, to perform the duties of a Bond Registrar under this Indenture, which agreement shall be
filed with the Trustee.
The Bond Registrar in respect of each series of Bonds shall act as registrar and
transfer agent for such series. The Corporation shall cause to be kept at an office of the Bond
Registrar for a series of Bonds a register (herein sometimes referred to as the "Bond Register") in
which, subject to such reasonable regulations as it or the Bond Registrar may prescribe, the
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Corporation shall provide for the registration of the Bonds of such series and for the registration of
transfers of such Bonds. The Corporation shall cause the Bond Registrar to designate, by a written
notification to the Trustee, a specific office location (which may be changed from time to time,
upon similar notification) at which the Bond Register is kept. The principal corporate trust office of
the Trustee, currently located at U.S. Bank Trust National Association in Saint Paul, Minnesota,
shall be deemed to be such office in respect of any series of Bonds for which the Trustee is acting
as Bond Registrar.
Each Bond Registrar shall, in any case where it is not also the Trustee, forthwith
following each Regular Record Date in respect of the related series of Bonds and at any other time
as reasonably requested by the Trustee, certify and furnish to the Trustee, and to any Paying Agent
for such series as the Trustee shall specify, the names, addresses, and holdings of Bondholders and
any other relevant information reflected in the Bond Register, and the Trustee and any such Paying
Agent shall for all purposes be fully entitled to rely upon the information so furnished to it and shall
have no liability or responsibility in connection with the preparation thereof.
Section 2.04. Registration, Transfer and Exchange. Upon their execution and
authentication and prior to their delivery, the Bonds shall be registered for the purpose of payment
of principal and interest by the Bond Registrar. To the extent that typewritten Bonds, rather than
printed Bonds, are to be delivered, such modifications to the form of Bond as may be necessary or
desirable in such case are hereby authorized and approved. There shall be no substantive change to
the terms and conditions set forth in the form of Bond, except as otherwise authorized by this
Indenture or any amendment thereto.
As provided in Section 2.03 hereof, the Corporation shall cause a Bond Register for
each series of Bonds to be kept at the designated office of the Bond Registrar for such series. Upon
surrender for transfer of any Bond at such office, the Corporation shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees, one or more new fully
registered Bonds of the same series of authorized denomination for the aggregate principal amount
which the registered owner is entitled to receive.
At the option of the owner, the Series 2003A Bonds may be exchanged for other
Bonds of such series of any authorized denomination, of a like aggregate principal amount, upon
surrender of the Bonds to be exchanged at any such office or agency. Whenever any Series 2003A
Bonds are so surrendered for exchange, the Corporation shall execute, and the Trustee shall
authenticate and deliver, the Bonds which the Bondholder making the exchange is entitled to
receive.
All Bonds presented for transfer or exchange, redemption or payment (if so required
by the Corporation, the Bond Registrar or the Trustee), shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and with guaranty of
signature satisfactory to the Trustee, duly executed by the owner or by his attorney duly authorized
in writing.
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No service charge shall be made for any exchange or transfer of Bonds, but the
Corporation may require payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto.
Neither the Corporation nor any Bond Registrar on behalf of the Corporation shall
be required (i) to issue, transfer or exchange any Bond during a period beginning at the opening of
business 15 days before the day of mailing of a notice of redemption of Bonds selected for
redemption and ending at the close of business on the day of such mailing, or (ii) to transfer or
exchange any Bond so selected for redemption in whole or in part.
New Bonds delivered upon any transfer or exchange shall be valid obligations of the
Corporation, evidencing the same debt as the Bonds surrendered, shall be secured by this Indenture
and entitled to all of the security and benefits hereof to the same extent as the Bonds surrendered.
By their acceptance of the Bonds, each Bondholder acknowledges that the Bonds
are not being registered under the Securities Act of 1933, as amended, and are not being registered
or otherwise qualified for sale under the "Blue Sky" laws and regulations of any State and that as of
the date of original issuance thereof, they will carry no rating from any rating service. The Series
2003A Bondholders also acknowledge that their Bonds may be sold, transferred or otherwise
disposed of only in minimum denominations of $100,000 to transferees who have delivered to the
Trustee and the Corporation a duly executed certificate of qualified investor in the form attached to
the form of the Bonds herein. The Trustee shall require and rely upon a certificate or opinions of
counsel from the Series 2003A Bondholder to evidence or confirm compliance with such
restrictions. Copies of any such certificates or opinions shall be delivered promptly to the
Corporation. The Series 2003A Bonds shall not be eligible for deposit with any securities
depository.
Section 2.05. Execution. The Bonds shall be executed by the manual or facsimile
signature of the President or any Vice President of the Corporation, and the corporate seal of the
Corporation or facsimile thereof shall be affixed, imprinted, lithographed or reproduced thereon and
shall be attested by the manual or facsimile signature of the Secretary of the Corporation.
Bonds executed as above provided may be issued and shall, upon request of the
Corporation, be authenticated by the Trustee, notwithstanding that any officer of the Corporation
signing such Bonds shall have ceased to hold office at the time of issuance or authentication or shall
not have held office at the date of the Bond.
Section 2.06. Authentication. No Bond shall be valid for any purpose until the
certificate of authentication shall have been duly executed by the Trustee, and such authentication
shall be conclusive proof that such Bond has been duly authenticated and delivered under this
Indenture and that the owner thereof is entitled to the benefit of the trust hereby created.
Section 2.07. Payment of Principal and Interest; Interest Rights Preserved.
The principal and redemption price of any Bond shall be payable as provided in the form of Bonds
hereinbefore recited.
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Subject to the foregoing provisions of this Section 2.07, each Bond delivered under
this Indenture upon transfer of or exchange for or in lieu of any other Bond shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other Bond.
Section 2.08. Persons Deemed Owners. The Corporation, the Trustee, any
Paying Agent and the Bond Registrar may deem and treat the person in whose name any Bond is
registered as the absolute owner thereof (whether or not such Bond shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by anyone other than the
Corporation, the Trustee, the Paying Agent or the Bond Registrar) for the purpose of receiving
payment of or on account of the principal of (and premium, if any, on), and (subject to Section 2.07
hereof) interest on, such Bond, and for all other purposes, and neither the Corporation, the Trustee,
the Paying Agent nor the Bond Registrar shall be affected by any notice to the contrary. All such
payments so made to any such registered owner, or upon his order, shall be valid and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon
any such Bond.
Section 2.09. Mutilated, Destroyed, Lost or Stolen Bonds. If any Bond shall
become mutilated, the Corporation shall execute, and the Trustee shall thereupon authenticate and
deliver, a new Bond of like tenor and denomination in exchange and substitution for the Bond so
mutilated, but only upon surrender to the Trustee of such mutilated Bond for cancellation, subject to
the Trustee and the Corporation being furnished such reasonable indemnity as either of them may
require therefor. If any Bond shall be reported lost, stolen or destroyed, evidence as to the
ownership and the loss, theft or destruction thereof shall be submitted to the Trustee; and if such
evidence shall be satisfactory to it and such indemnity satisfactory to the Trustee and the
Corporation shall be given, the Corporation shall execute, and thereupon the Trustee shall
authenticate and deliver, a new Bond of like series, tenor and denomination as the original Bond,
but carrying such additional marking as will enable the Trustee to identify such Bond as a
replacement Bond. The cost of providing any substitute Bond under the provisions of this Section
shall be borne by the Bondholder for whose benefit such substitute Bond is provided. If any such
mutilated, lost, stolen or destroyed Bond shall have matured or be about to mature, the Trustee shall
pay to the owner the principal amount of such Bond upon the maturity thereof and the compliance
with the aforesaid conditions by such owner, without the issuance of a substitute Bond therefor.
Every substituted Bond issued pursuant to this Section 2.09 shall constitute an
additional contractual obligation of the Corporation, whether or not the Bond alleged to have been
destroyed, lost or stolen shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Bonds duly issued
hereunder.
All Bonds shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Bonds, and shall preclude any and all other rights or remedies, notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or investment or other securities without their surrender.
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Section 2.10. Temporary Bonds. Pending preparation of definitive Bonds of any
series, or by agreement with the purchasers of all Bonds of any series, the Corporation may issue
and, upon its request, the Trustee shall authenticate in lieu of definitive Bonds one or more
temporary printed or typewritten Bonds in authorized denominations of substantially the tenor
recited above. Upon request of the Corporation, the Trustee shall authenticate definitive Bonds in
exchange for and upon surrender of an equal principal amount of temporary Bonds. Until so
exchanged, temporary Bonds shall have the same rights, remedies and security hereunder as
definitive Bonds.
Section 2.11. Cancellation and Destruction of Surrendered Bonds. Bonds
surrendered for payment, redemption, transfer or exchange, and Bonds purchased from any moneys
held by the Trustee hereunder or surrendered to the Trustee by the Corporation, shall be canceled
and destroyed by the Trustee. The Trustee shall deliver to the Corporation a certificate of
destruction identifying all Bonds so destroyed.
ARTICLE III
ISSUE OF BONDS
Section 3.01. Issue of Bonds. The Corporation may issue the Series 2003A-B
Bonds following the execution of this Indenture; and the Trustee shall, at the Corporation's request,
authenticate such Bonds and deliver them as specified in the request.
Section 3.02. Issue of Additional Bonds. To (i) acquire, construct, improve or
equip completion of or improvements or additions to the Project, or (ii) refund any series of Bonds,
or (iii) pay for any combination of such purposes after the delivery of the Bonds, the Corporation
and the Trustee may from time to time, upon the conditions stated in this Section 3.02 and with the
consent of the Town, agree upon and approve the issuance and delivery of Additional Bonds,
secured by this Indenture from the revenues and property pledged and appropriated hereunder, but
bearing such date or dates and interest rate or rates and with such redemption dates and premiums
as may be agreed upon, but only upon satisfaction of all of the following conditions:
(1) Certified Resolution. A resolution duly adopted by the Corporation,
certified by the President or other Corporation Representative, approving and authorizing
the issuance of the Additional Bonds and the execution and delivery of the amendment or
supplement to the Indenture.
(2) Bondholder Consent. Evidence that a Majority Interest has
consented to the issuance of such Additional Bonds; provided that such consent shall not be
required if the Additional Bonds are being issued to refund any series of Bonds and such
refunding will result in a net present value savings to the Corporation.
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(3) Supplemental Bond Indenture. Originally executed counterparts of
an indenture supplemental hereto, designating the new series to be created and prescribing
expressly or by reference to the Bonds of such series:
(a) the principal amount of the Bonds of such series;
(b) the text of the Bonds of such series;
(c) the maturity dates thereof,
(d) the rate or rates of interest and the date from which, and the
date or dates on which, interest is payable;
(e) provisions as to redemption;
(f) any additional security to be provided for the Bonds;
(g) any other provisions necessary to describe and define such
series within the provisions and limitations of this Indenture; and
(h) any other provisions and agreements in respect thereof
provided, or not prohibited, by the Indenture.
(4) Amendments to Deeds of Trust and Project Agreement. Originally
executed counterparts of amendments or supplements to the Deeds of Trust and the Project
Agreement providing for the securing of such Additional Bonds, as necessary.
(5) Accountant's Certificate. A certificate of an Accountant setting
forth, for the last audited Fiscal Year or for any period of 12 consecutive calendar months
out of the 18 calendar months next preceding the delivery of such series of Bonds, as
determined by the Accountant, a Debt Service Coverage Ratio greater than 120%.
(6) Opinion of Bond Counsel. An opinion or opinions of Bond Counsel
acceptable to the Trustee that:
(a) all instruments furnished the Trustee conform to the
requirements of this Indenture and constitute sufficient authority hereunder for the
Trustee to authenticate and deliver the Additional Bonds then applied for;
(b) all laws and requirements with respect to the form and
execution by the Corporation of the supplemental indenture, and the execution and
delivery by the Corporation of the Additional Bonds then applied for, have been
complied with;
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(c) the Corporation has corporate power to issue such Additional
Bonds and has taken all necessary action for the purpose;
(d) the Additional Bonds then applied for, when issued, will be
secured by the lien of this Indenture;
(e) any exclusion from gross income for federal income tax
purposes of the interest on the Outstanding Bonds and any other tax-exempt
Additional Bonds Outstanding will not be impaired by the issuance of the
Additional Bonds then applied for; and
(f) the supplements or amendments to the Deeds of Trust are
valid and binding in accordance with their terms.
Section 3.03. Disposition of Proceeds of Bonds; Other Deposits. Proceeds of
the Series 2003A Bonds are to be transferred to the 1998 Trustee to be held and applied in
accordance with the Refunding Agreement and the 1998 Indenture. The disposition of the proceeds
of any series of Additional Bonds issued pursuant to Section 3.02 hereof shall be as provided in the
supplemental indenture establishing such series.
Section 3.04. Subordinate Obligations Permitted. Nothing in this Indenture
prevents the Corporation from issuing subordinate bonds with the consent of the Town and, if any
Series 2003A Bonds or Additional Bonds secured on a parity therewith are outstanding, of a
Majority Interest, or from incurring other contract obligations having a lien on the Surplus Account
subordinate to the lien thereon of the Bonds, subject to the rights of the Town under the Project
Agreement; provided that any lien on the Surplus Account created in connection with such bonds or
other obligations shall terminate upon the occurrence of an Event of Default hereunder. Any such
subordinate obligations may be authorized by resolution or by any other instrument of the
Corporation.
Section 3.05. Superior Bonds Prohibited. Nothing herein permits the
Corporation to issue bonds or incur other contract obligations having a lien on the Project or on Net
Revenues superior to the lien thereon of the Bonds, and any such superior obligations are hereby
prohibited.
ARTICLE IV
PLEDGE OF TRUST ESTATE; REVENUES AND FUNDS
Section 4.01. Pledge of Trust Estate. Subject only to the rights of the
Corporation to apply amounts under the provisions of this Article IV, a pledge of the Trust Estate to
the extent provided herein is hereby made, and the same is pledged to secure the payment of the
principal of, premium, if any, and interest on the Bonds and Indebtedness to the Town. The pledge
hereby made shall be valid and binding from and after the time of the delivery of the first Bond
authenticated and delivered under this Indenture. The security so pledged and then or thereafter
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received by the Corporation shall immediately be subject to the lien of such pledge and the
obligation to perform the contractual provisions hereby made shall have priority over any or all
other obligations and liabilities of the Corporation with regard to the Trust Estate, to the extent
provided herein, and the lien of such pledge shall be valid and binding as against all parties having
claims of any kind in tort, contract or otherwise against the Corporation irrespective of whether
such parties have notice thereof.
Section 4.02. Establishment of Funds. The Corporation hereby establishes and
creates the following funds and accounts, which shall be special trust accounts held by the Trustee:
(a) Bond Fund and therein the Series A Bond Account, the Series B
Bond Account and the Series C Bond Account and within each such Account a Redemption
Subaccount and Sinking Fund Subaccount.
(b) Excess Investment Earnings Fund.
(c) Property Insurance and Award Fund.
(e) Revenue Fund and therein the Surplus Account.
Section 4.03. Bond Fund. The Trustee shall deposit in the Bond Fund each of the
payments required by Section 5.04 hereof, and any moneys paid to the Trustee under this Indenture
for credit or transfer to the Bond Fund. Moneys in the Series A Bond Account of the Bond Fund
shall be applied to pay the principal of and interest on the Series 2003A Bonds and Additional
Bonds secured on a parity therewith when due. Subject to the last sentence of this Section 4.03,
moneys in the Series B Bond Account of the Bond Fund shall be applied to pay the unpaid principal
of and interest on the Series 1998B Subordinate Bonds and Additional Bonds secured on a parity
therewith when due including, at the direction of the Corporation, to pay the optional redemption
price of the Series 1998B Subordinate Bonds and Additional Bonds secured on a parity therewith,
and moneys in the Series C Bond Account of the Bond Fund shall be applied to pay the unpaid
principal of and interest on the Series 1998C Subordinate Bonds and Additional Bonds secured on a
parity therewith when due including, at the direction of the Corporation, to pay the optional
redemption price of the Series 1998C Subordinate Bonds and Additional Bonds secured on a parity
therewith.
When Bonds of a Series are redeemed or purchased, the amount, if any, in the
applicable account of the Bond Fund representing interest thereon shall be applied to the payment
of accrued interest in connection with such redemption or purchase. Whenever the amount in an
account of the Bond Fund is sufficient to redeem all of the Outstanding Bonds of the applicable
Series and to pay interest accrued to the redemption date, the Corporation will cause the Trustee to
redeem all such Bonds on the applicable redemption date specified by the Corporation. Any
amounts remaining in the Bond Fund after payment in full of the principal or redemption price,
premium, if any, and interest on the Bonds (or provision for payment thereof) and the fees, charges
and expenses of the Corporation, the Trustee and any paying agents, shall be paid to the
Corporation.
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Moneys delivered to the Trustee in contemplation of optional or mandatory
redemption or maturity of the Bonds of a Series shall be deposited in the related Redemption
Subaccount and shall be used by the Trustee to redeem or pay the principal of such Bonds
(including any redemption premium thereon) in accordance with the provisions hereof.
The Trustee shall use the Sinking Fund Subaccount to purchase or redeem Bonds of
the applicable Series as required hereunder.
The Trustee shall deposit the following amounts in respect of principal of the
Series 2003A Bonds from Net Revenues, at the times and for the benefit of such Bonds, in the
applicable Sinking Fund Subaccount and apply such amounts to the redemption by lot as provided
in the form of Bonds hereinbefore recited on June 1 and December 1 in each of the years set forth
below of the Series 2003A Bonds at par, plus accrued interest:
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June 1 of
the Series 2003A Principal
Year Amount to be Redeemed
2004 $0
2005 50,000
2006 60,000
2007 60,000
2008 65,000
2009 70,000
2010 80,000
2011 85,000
2012 90,000
2013 95,000
2014 105,000
2015 115,000
2016 125,000
2017 135,000
2018 140,000
* Stated Maturity
December
1 of the Series 2003A Principal
Year Amount to be Redeemed
2004 $45,000
2005 55,000
2006 60,000
2007 65,000
2008 70,000
2009 75,000
2010 80,000
2011 85,000
2012 95,000
2013 100,000
2014 110,000
2015 120,000
2016 130,000
2017 135,000
2018* 7,020,000
The Trustee shall also establish such sinking funds for any series of additional
Bonds as may be directed in the supplemental indenture establishing such series. The Trustee shall
use the sinking fund for each series to purchase or redeem Bonds of such series. The Corporation
may deliver Bonds purchased by it as a credit against future sinking fund payments in inverse
chronological order; provided that such Bonds so delivered by the Corporation shall be of the same
series and maturity in respect of which the sinking fund payment is to be made and shall be
delivered no less than 45 days before the sinking fund redemption date. Bonds so delivered shall be
credited at the sinking fund redemption price set forth in the form of Bonds. If at any time all the
Bonds of any series shall have been purchased, redeemed or paid, the Trustee shall make no further
transfers to the sinking fund for such series and shall treat any balance then in such fund as Project
Revenues in the Bond Fund.
If any series of Bonds is to be paid or redeemed in full, any balance in any sinking
fund for such series may, at the option of the Corporation, to be exercised at the request of the
Corporation, be applied in whole or in part to the payment or redemption of such series or
transferred to the Bond Fund.
Revenues and investments thereof shall, until applied as provided in this Indenture,
be held by the Trustee for the benefit of the owners of all outstanding Bonds, except that any
portion of the Revenues in the Bond Fund or any sinking fund representing principal or redemption
price of, and premium, if any, and interest on, any matured Bonds, or any Bonds previously called
for redemption in accordance with Article IX of this Indenture, shall be held for the benefit of the
owners of such Bonds only.
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Three Business Days prior to each Interest Payment Date, the Trustee shall
determine whether there are sufficient moneys credited to the Bond Fund to pay the principal or
redemption price of, and interest due on the Bonds on such Interest Payment Date. If the Trustee
determines that there is a deficiency in the Bond Fund with respect to payments of principal or
redemption price of, or interest on the Series 2003A Bonds and Additional Bonds secured on a
parity therewith, the Trustee shall give written notice thereof within one Business Day of such
determination to the Corporation, the Town and to all owners of the Series 2003A Bonds and
Additional Bonds secured on a parity therewith and any Bondholder who has requested receipt of
such notices of a deficiency. In the event that on the payment date, such deficiency still exists, the
Trustee shall withdraw funds to the extent necessary, to pay the principal of and interest on the
Series 2003A Bonds and Additional Bonds secured on a parity therewith from the following funds
and accounts in the following order of priority: (1) Surplus Account to the extent of any available
balance therein, (2) Series B Bond Account of the Bond Fund and (3) Series C Bond Account of the
Bond Fund Use of any of such funds or accounts to satisfy such deficiency shall cure an Event of
Default under Section 10.01(A) or (B) hereof. Payment of principal of and interest on the
Subordinate Bonds shall not be made until such deficiency is paid.
Section 4.04. Excess Investment Earnings Fund. Within 60 days after each
installment calculation date and not later than 60 days after the redemption of the last Bond, the
Corporation shall compute the Excess Investment Earnings for the year just completed and shall,
subject to Section 4.06 hereof, transfer from the Revenue Fund to the Excess Investment Earnings
Fund an amount equal to the amount so computed. If the amount so computed is a negative
number, said amount may be withdrawn from the Excess Investment Earnings Fund and deposited
in the Revenue Fund. All amounts in the Excess Investment Earnings Fund, including income
earned from the investment of such amounts, shall be held by the Trustee free and clear of the liens
described in this Indenture. At the written direction of the Corporation Representative, the Trustee
shall pay over to the United States of America, not later than 60 days after the fifth anniversary of
the date of issuance of the Bonds, an amount equal to 90% of the net aggregate amount transferred
to or earned in the Excess Investment Earnings Fund during such period and not theretofore paid to
the United States of America and, not later than 60 days after the redemption of the last Bond,
100% of the aggregate amount in the Excess Investment Earnings Fund. Notwithstanding the
provisions of this Section 4.04, the Trustee shall at all times maintain and administer the Excess
Investment Earnings Fund in conformity with all applicable federal statutes and regulations as the
same may be amended from time to time.
Section 4.05. Property Insurance and Award Fund.
(a) The Trustee shall deposit all Net Loss Proceeds of a condemnation
award, sale under threat of condemnation or insurance claim receivable by it under Section 6.01
hereof or any amounts received from the Corporation that are intended for the restoration of the
Project in the Property Insurance and Award Fund, and shall use and withdraw money in this Fund
only for the purposes and upon the conditions stated in this Section 4.05; provided, however, that
the proceeds of business interruption insurance shall be deposited in the Revenue Fund.
43
(b) If all or a portion of the Project is damaged or destroyed or taken by
condemnation or exercise of the power of eminent domain or sale to a potentially taking
governmental authority under threat thereof and the Corporation, with the consent of a Majority
Interest, directs the Trustee to call for redemption all or a portion of the then Outstanding Series
2003A Bonds, the Trustee shall, as soon as possible, cause a notice of redemption of so much of the
Outstanding Series 2003A Bonds as are to be redeemed to be given in accordance with the
provisions of Section 9.02 hereof. In the event that such redemption is to occur, and upon receipt of
an opinion of Bond Counsel stating that all steps have been taken as required by this Indenture for
the exercise of such option, the redemption of Bonds and the satisfaction and discharge of this
Indenture, together with duplicate originals of all documents on which such opinion of Bond
Counsel is based, the Trustee shall transfer the Net Loss Proceeds then held in the Property
Insurance and Award Fund to the Bond Fund and use and apply the Net Loss Proceeds, and, if all
Outstanding Series 2003A Bonds are to be redeemed, all other funds in its hands not required for
compensation and reimbursement of the Trustee, to the redemption and payment of Bonds and
interest accrued thereon.
(c) If all or a portion of the Project is damaged or destroyed or taken by
condemnation or exercise of the power of eminent domain or sale to a potentially taking
governmental authority under threat thereof and the Corporation, with the consent of a Majority
Interest, elects to restore the Project, the Trustee shall make disbursement from the Property
Insurance and Award Fund upon receipt by the Trustee of the following items:
(1) Plans (if applicable) or purchase orders for Project
Equipment for restoration of the Project;
(2) fully executed copies of the construction contracts
("Construction Contracts") for the furnishing of the necessary work and materials required
for restoration in accordance with such Plans;
(3) an opinion of Counsel satisfactory to the Trustee that any
improvement to be acquired or constructed with the proceeds of such condemnation award
or insurance claim will, upon the acquisition or construction thereof, be subject to the lien
of the Deeds of Trust;
(4) a detailed estimate of the cost of construction of the
restoration, indicating the gross costs, including all hard and soft costs, of the entire Project,
including, without limitation, all equipment to be acquired, showing that the moneys in the
Property Insurance and Award Fund, together with the Corporation's estimate of the
investment earnings to be deposited therein are sufficient to pay all costs of completing and
restoring the Project certified by the Corporation Representative to the best of his or her
knowledge and belief, upon due inquiry, to be correct;
(5) a certificate of an Independent Engineer stating that (i) repair
of the Project is practicable and (ii) the labor and materials to be provided for pursuant to
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Construction Contracts delivered to the Trustee pursuant to Section 4.05(c)(2) hereof will
collectively be sufficient to complete the Project in accordance with the Plans and the
Project budget;
(6) a copy of the budget for the repair, replacement, rebuilding,
completion and restoration of the Project, showing that the moneys in the Property
Insurance and Award Fund and the Construction Fund, together with the Corporation's
estimate of the investment earnings to be deposited therein, are sufficient to pay all costs of
repair, replacement, rebuilding, restoring and completing the Project accompanied by a
certificate of an Independent Engineer stating that the budget is adequate to provide for
repair, replacement, rebuilding, completion and restoration of the Project;
(7) a copy of the construction schedule for the completion and
restoration of the Project accompanied by a certificate of an Independent Engineer stating
that such schedule is adequate to provide for repair, replacement, rebuilding, completion
and restoration of the Project;
(8) all government permits required to undertake completion and
restoration of the Project;
(9) a certificate satisfactorily evidencing builders' all-risk
insurance in an amount not less than the lesser of the total authorized principal amount of
the Bonds or the Full Insurable Value of the improvements to the Project;
(10) a certificate satisfactorily evidencing worker's compensation
insurance in an amount required by the Worker's Compensation Act now or hereafter
enacted in the State;
(11) a certificate satisfactorily evidencing comprehensive general
liability insurance, in amounts not less than $1,000,000 per occurrence and $2,000,000
aggregate, with excess liability coverage of not less than $5,000,000;
(12) a certificate satisfactorily evidencing automobile liability
insurance with a combined single limit amount of not less than $1,000,000;
(13) certificates satisfactorily evidencing owner's protective
liability insurance on the Project for the Corporation, in amounts not less than $1,000,000
per occurrence and $2,000,000 aggregate;
(14) 100% payment and performance Bonds in connection with
completion and restoration of the Project from a bonding company naming the Corporation
and the Trustee as obligees and otherwise reasonably acceptable to the Trustee;
(15) collateral assignments of all plans, specifications, contracts
and agreements described in this subsection (c); and
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(16) for each draw out of the Property Insurance and Award Fund
(which shall occur not more than monthly), a requisition certificate in the form attached as
Exhibit B hereto and incorporated herein by reference, executed by a Bondholder
Representative.
If the Corporation chooses not to use the Net Loss Proceeds received under this
Section 4.05(c) to reconstruct the Project within 180 days of the receipt thereof or if the
Corporation is unable to provide the items provided for in this Section 4.05(c), the Corporation
shall direct the Trustee to call for redemption a portion of the then Outstanding Series 2003A
Bonds, and the Trustee shall, as soon as possible, cause a notice of redemption of so much of the
Outstanding Series 2003A Bonds as are to be redeemed to be given in accordance with the
provisions of Section 9.02 hereof.
(d) After receiving such documents required by Subsection (c) of this
Section 4.05, the Trustee shall pay costs of restoration to the Corporation or other persons entitled
thereto, as established by Corporation Representative's certificates and other documentation in form
similar to that required under Section 5.10 hereof, provided that no costs of restoration as so
certified shall be paid until receipt by the Trustee of an opinion of Counsel stating that all filings
and other steps necessary to perfect the mortgage lien and security interests created hereby and by
the Deeds of Trust in all property, real, personal or mixed, which constitutes part of the Project as a
result of such restoration, as against third party creditors of or purchasers for value from the
Corporation, have been completed, and that the lien of the Deeds of Trust is subject to no liens and
encumbrances except Permitted Encumbrances. In the event that the restoration of the Project to
substantially the condition existing before a taking by eminent domain or sale to a potentially taking
governmental authority under threat thereof would require the acquisition of real property or rights
or interests in real property additional to or in substitution for any part or all of that described in
Exhibit A hereto, the cost thereof may be added to the cost of restoration to be reimbursed to the
Corporation under the provisions of this Section 4.05 only if there are filed with the Trustee the
following, each in form and substance satisfactory to the Trustee, (1) evidence of the acquisition of
such real property or an interest therein, (2) evidence of the Corporation's approval of such
acquisition, (3) an amendment to the Deeds of Trust subjecting such additional or substituted real
property and rights or interests therein to the lien of this Indenture and the Deeds of Trust, (4) a
policy of title insurance in relation to such additional or substituted real property and rights or
interests therein insuring the Deeds of Trust to be a first mortgage lien on fee simple title to such
additional or substituted real property, free and clear of all liens and encumbrances except
Permitted Encumbrances, said policy to be in substantially the form of the title policy originally
delivered to the Trustee in connection with the issuance of the Bonds and to contain appropriate
endorsements and additions to coverage included with said earlier title policy and (5) a Phase I
environmental survey showing the property is free of environmental contamination. Any additional
real property or rights or interests therein so acquired shall be and become part of the Trust Estate as
fully as though originally set forth and described in the Deeds of Trust.
(e) Any Net Loss Proceeds not applied to the redemption of Bonds or
restoration of the Project or deposited in the Revenue Fund shall be remitted to the Town.
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Section 4.06. Revenue Fund; Surplus Account. Except as otherwise provided
herein, all Net Revenues following receipt thereof from time to time by the Corporation, shall be
deposited on the 15th of each month to the Revenue Fund with the Trustee or with an Approved
Depository. On the 25th day of each month, the Trustee shall withdraw amounts from the Revenue
Fund to make the deposits hereinafter described.
(a) The Revenue Fund shall be administered and the moneys on deposit
therein shall be deposited and applied monthly in the following order of priority:
(1) First, to the Senior Bond Account of the Bond Fund, until
the amount therein shall equal the Monthly Payments on the Series 2003A Bonds and any
Additional Bonds secured on a parity therewith which have become due through and
including the current calendar month;
(2) Second, if the amounts in the Property Insurance and Award
Fund, together with any investment earnings to be deposited therein, are or are estimated by
the Project budget to be, insufficient to complete the restoration of the Project, subject to
approval of Majority Interest, any remaining moneys up to the amount necessary or
estimated to be necessary to complete such construction or restoration;
(3) Third, to the Excess Investment Earnings Fund, in an
amount equal to any deposits required to be made therein;
(4) Fourth, to the Corporation for the purpose of funding all of
the reserves and any other payments required under the Supplemental Agreement;
(5) Fifth, to the Town or any owner(s) of Subordinate Bonds to
discharge any Indebtedness owing under Section 10.02 hereof,
(6) Sixth, to the Bond Fund, to be applied or deposited monthly
to the payment of accrued and unpaid interest on the Series 1998B Subordinate Bonds and
any Additional Bonds secured on a parity therewith;
(7) Seventh, to the Bond Fund, to be applied or deposited
monthly to the payment of accrued and unpaid interest on the Series 1998C Subordinate
Bonds and any Additional Bonds secured on a parity therewith;
(8) Eighth, all remaining balances shall be transferred to the
Surplus Account, to be applied in the manner set forth in Section 4.06(b) hereof.
(b) On any date, amounts held in the Surplus Account shall be
transferred to and applied, as needed to cure deficiencies in the following funds, in the following
order of priority: Series A Bond Account of the Bond Fund, the Excess Investment Earnings Fund,
Series B Bond Account of the Bond Fund and Series C Bond Account of the Bond Fund. Moneys
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on deposit in the Surplus Account shall also be used to the extent necessary to make up any
deficiencies in the Bond Fund as provided in Section 4.04 hereof. The Corporation may direct the
Trustee to transfer moneys from the Bond Fund to the Series B Account or Series C Account of the
Bond Fund to optionally redeem Subordinate Bonds in the Corporation's sole discretion, subject to
accordance with the optional redemption provisions of such Subordinate Bonds. In addition, upon
certification to the Trustee by the Corporation Representative that no Event of Default exists
hereunder and no amount is then required to be transferred as described in the immediately
preceding sentence, the Corporation may withdraw funds from the Surplus Account at any time for
any other lawful purpose, and may assign and pledge to others all future balances in the Surplus
Account. Any such assignment or pledge shall not be considered as Indebtedness under this
Indenture and shall be terminated upon the occurrence of an Event of Default hereunder. To the
extent that funds are available from time to time in the Surplus Account, the Corporation agrees to
consider using such funds to make payments to EagleBend Affordable Housing Corporation
pursuant to a Note of the Corporation dated October _, 2003.
Section 4.07. Purchase of Bonds. Pursuant to written request from a Corporation
Representative, and upon deposit by the Corporation in the Bond Fund pursuant to Section 4.03
hereof of a sum, in excess of Payments and other payments then and theretofore required to be so
deposited, sufficient to purchase one or more Outstanding Bonds at a price not exceeding the
amount specified by the Corporation in such request, which shall include accrued interest to the
date of purchase, the Trustee shall endeavor to purchase so many of the Outstanding Bonds as the
sum deposited will permit. For this purpose the Corporation may specify the maximum purchase
price to be paid for the Bonds and the method of purchase, which may include a call for tenders.
The Trustee shall be entitled to be compensated or indemnified by the Corporation for its expenses
before proceeding hereunder. All Bonds purchased by the Trustee pursuant to this Section 4.07
shall be canceled as soon as received. The Corporation's rights under this Section 4.07 may only be
exercised subject to the following conditions: (a) purchases may be made at a price of no more than
par plus accrued interest and only from amounts on deposit in the Surplus Account; (b) such
purchase may not be made to the extent that there is any deficiency in any fund under the Indenture
or any Operating and Maintenance Expenses then due and payable are unpaid; (c) such purchase
may not be of any Series 1998B Subordinate Bonds or any Additional Bonds secured on a parity
with any of the foregoing so long as there are any Outstanding Series 2003A Bonds or Additional
Bonds secured on a parity therewith; (d) such purchase may not be of any Series 1998C
Subordinate Bonds or any Additional Bonds secured on a parity with any of the foregoing so long
as there are any Outstanding Series 2003A Bonds, Series 1998B Subordinate Bonds or Additional
Bonds secured on a parity therewith; (e) any offer to purchase any Bonds must be made in writing
to all owners of Bonds of the Series which are ultimately purchased, and any Bonds secured on a
parity therewith at least 30 Business Days prior to the purchase; and (e) no Bond which has
previously been called for redemption shall be purchased pursuant to this Section 4.07. Upon any
such purchase, the sinking fund schedule for the Bonds purchased shall be credited in inverse
chronological order.
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ARTICLE V
COVENANTS AND AGREEMENTS OF THE CORPORATION
Section 5.01. Performance of Covenants. The Corporation covenants that it will
timely and faithfully perform at all times any and all covenants, undertakings, stipulations and
provisions contained in this Indenture, the Supplemental Agreement, and the Deeds of Trust, in any
and every Bond and in all proceedings of the Corporation pertaining thereto. The Corporation
covenants, represents, warrants and agrees that it is duly authorized under the Constitution and laws
of the State, to issue the Bonds and to execute this Indenture and the Deeds of Trust, to pledge the
property described herein and in the Deeds of Trust and pledged hereby or thereby and to pledge the
Trust Estate in the manner and to the extent herein and therein set forth, that all actions on its part
required for the issuance of the Bonds and the execution and delivery of this Indenture and the
Deeds of Trust have been duly and effectively taken or will be duly taken as provided herein, and
that this Indenture and the Deeds of Trust are valid and enforceable instruments of the Corporation
and that the Bonds in the hands of the owners thereof are and will be valid and enforceable
obligations of the Corporation according to the terms thereof.
Section 5.02. Corporate Existence; Compliance with Laws. The Corporation
shall maintain its existence, shall use its best efforts to maintain and renew all its rights, powers,
privileges and franchises; and shall comply with all valid and applicable laws, acts, rules,
regulations, permits, orders, requirements and directions or any legislative, executive,
administrative or judicial body.
Section 5.03. Further Assurances. Except to the extent otherwise provided in
this Indenture, the Corporation shall not enter into any contract or take any action by which the
rights of the Trustee or the Bondholders may be impaired and shall, from time to time, execute and
deliver such further instruments and take such further action as may be required to carry out the
purposes of this Indenture.
Section 5.04. Payment of Principal, Interest and Premium; Other Required
Payments. The Corporation will promptly pay or cause to be paid the principal of, premium, if
any, and interest on all Bonds issued hereunder according to the terms hereof. The Corporation
hereby covenants to provide for the payment of principal of and interest on the Series 2003A Bonds
and Additional Bonds secured on a parity therewith by making Monthly Payments on the 25th day
of each calendar month to and including the month prior to the date that all such unpaid principal of
the Bonds shall be paid in full. Monthly Payments shall be credited to the extent moneys are
already on deposit in the applicable account of the Bond Fund for such payment.
The Corporation shall appoint one or more Paying Agents for such purpose, each
such agent to be a national banking association, a bank and trust company or a trust company. The
Corporation hereby appoints the Trustee to act as sole Paying Agent, and designates the principal
corporate trust office of the Trustee as the place of payment, such appointment and designation to
remain in effect until notice of change is filed with the Trustee.
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The Corporation agrees to pay the following amounts to the following persons as the
following under this Indenture:
(a) to the Trustee, in advance, all reasonable fees of the Trustee for
services rendered under this Indenture and all reasonable fees and charges of paying agents,
registrars, Bond Counsel, accountants, engineers and others incurred on request of the
Trustee in the performance of services under this Indenture for which the Trustee and such
other persons are entitled to payment or reimbursement, provided that the Corporation may,
without creating a default hereunder, contest in good faith the reasonableness of any such
services, fees or expenses other than the Trustee's fees for services rendered pursuant to the
express provisions of the Indenture;
(b) to the appropriate party the fees and expenses of any rebate analyst
selected by the Corporation or the Trustee, as and when the same becomes due, upon
submission of a statement thereon; and
(c) to the Trustee all amounts to be deposited to the Excess Investment
Earnings Fund, as and when the same become due as determined pursuant to the Indenture,
to the extent there are no other amounts available to make such deposits, and to cause the
Trustee to apply such funds in compliance with the terms of the Indenture.
In the event the Corporation should fail to make any of the payments required by
this Section, the item or installment in default shall continue as an obligation of the Corporation
until the amount in default shall have been fully paid, and the Corporation agrees to pay the same.
Nothing in the Bonds or in this Indenture shall be considered or construed as pledging any funds or
assets of the Corporation other than those pledged hereby or creating any liability of the
Corporation's members, employees or other agents.
Section 5.05. Conditions Precedent. Upon the date of issuance of any of the
Bonds, the Corporation hereby covenants that all conditions, acts and things required by the laws
of the State or by this Indenture to exist, to have happened or to have been performed precedent to
or in the issuance of the Bonds shall exist, have happened and have been performed.
Section 5.06. Financing Statements. The Corporation shall from time to time
cause this Indenture and the Deeds of Trust or financing statements relating thereto (including,
without limitation, continuation statements) to be filed, in such manner and at such places as may
be required by law fully to protect the security of the owners of the Bonds and the right, title and
interest of the Trustee in and to the trust estate or any part thereof. From time to time, as reasonably
requested by the Trustee, the Corporation shall furnish to the Trustee an opinion of Counsel setting
forth what, if any, actions by the Corporation or Trustee should be taken to preserve such security.
The Corporation shall execute or cause to be executed any and all further instruments as may be
required by law or as shall reasonably be requested by the Trustee for such protection of the
interests of the Trustee and the Bondholders, and shall furnish satisfactory evidence to the Trustee
of filing and refiling of such instruments and of every additional instrument which shall be
necessary to preserve the lien of this Indenture and the Deeds of Trust upon the trust estate or any
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part thereof until the principal of and premium, if any, and interest on the Bonds issued hereunder
shall have been paid. The Trustee shall execute or join in the execution of any such further or
additional instrument and file or join in the filing thereof at such time or times and in such place or
places as it may be advised by an opinion of Counsel will preserve the lien of this Indenture upon
the trust estate or any part thereof until the aforesaid principal shall have been paid.
Section 5.07. Construction, Equipping and Operation of the Project.
The Corporation shall:
(a) cause the Project to be acquired and constructed substantially in
accordance with all applicable building code and zoning requirements and substantially in
accordance with the Plans;
(b) maintain and operate the Project in accordance with all governmental
regulations and other restrictions applicable to the Project and at standards required to
provide decent and safe housing facilities at reasonable rental rates, in a sound and
economical manner;
(c) provide all improvements, access roads, utilities, and other items
required in the Corporation's reasonable judgment to keep the Project fully operable for the
purposes specified herein;
(d) cause to be acquired and properly installed in the Project such items
of furniture, machinery and equipment and other items of personal property as may be
necessary and desirable in the Corporation's reasonable judgment for operation of the
Project;
(e) cause insurance relating to the Project to be procured and maintained
in accordance with Section 5.15 hereof,
(f) cause to be paid when due or provide for the payment of all fees,
costs and expenses incurred in connection with the acquisition, construction, equipping,
operation and maintenance of the Project;
(g) ask, demand, sue for, levy, recover and receive all those sums of
money, debts and other demands whatsoever which may be due, owing and payable under
the terms of any lease, contract, order, receipt, writing and instruction in connection with the
acquisition, construction, equipping, operation and maintenance of the Project, and enforce
the provisions of any lease, contract, agreement, obligation, bond or other performance
security with respect thereto; and
(h) establish and enforce rules and regulations governing the operation,
care, repair, maintenance, management, control, occupancy, use and services of the Project.
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Section 5.08. Taxes and Other Governmental Charges and Utility Charges.
The Corporation will make, or will cause to be made, promptly all payments due so long as the
Bonds are Outstanding on taxes and special assessments lawfully levied upon or with respect to the
Project, other charges lawfully made by any governmental body for public improvements that may
be or become secured by a lien on the Project, and utility and other charges incurred in the
operation, maintenance, use, occupancy and upkeep of the Project, including but not limited to
taxes or governmental charges on any property of the Corporation brought in or upon the Project,
sales and other excise taxes on products thereof, and any taxes levied upon or with respect to
income or profits from the Project which, if not paid, would become a lien upon the Mortgaged
Property. With respect to special assessments or other governmental charges that may lawfully be
paid in installments over a period of years, with or without interest, the Corporation shall be
obligated to pay only such installments and interest as are required to be paid so long as the Bonds
are outstanding. The Corporation may in good faith contest any such taxes, assessments and other
charges and, in the event of such contest, may permit the items so contested to remain unpaid
during the period of the contest and any appeal therefrom, provided that the Corporation shall first
furnish to the Trustee, an opinion of Counsel, addressed to the Trustee, that nonpayment of any
such items will not materially endanger the lien of the Indenture as to any part of the Project and
will not subject the Project or any part thereof to loss or forfeiture. In the event the Corporation
becomes obligated to pay property taxes levied upon or with respect to the Project, the Trustee shall
establish a property tax escrow account within the Operating Fund and the Corporation shall be
obligated to make monthly deposits in an amount equal to the quotient obtained by dividing the
amount of such annual property taxes by 12 in such property tax escrow account as expenses
payable pursuant to Section 4.08(a)(2).
Section 5.09. Maintenance and Management of the Project. So long as the
Bonds are outstanding, the Corporation will keep the Project and all parts thereof in good repair and
good operating condition, making all repairs thereto and renewals and replacements thereof
necessary for this purpose, so that the Project will remain suitable and efficient for use as a facility
of the character described in and contemplated by this Indenture, or, with the consent of the
Majority Interest, such other uses as are not inconsistent with this Indenture. In furtherance of such
covenant, the Corporation has contracted with the Project Manager to manage the Project pursuant
to the Project Management Agreement dated as of July 1, 1998. The Corporation shall keep the
Project under competent and professional management at all times so long as the Bonds are
Outstanding and may appoint, re-appoint, terminate or replace the Project Manager without the
consent of any Bondholders; provided, that the Corporation shall promptly notify the Trustee and
Bondholders of any such appointment, termination or replacement.
Section 5.10. Liens. Except for Permitted Encumbrances, the Corporation will
not permit any mechanics' or other liens to remain outstanding against the Project, including, but
not limited to, liens for labor or materials furnished in connection with completion of the Project, or
any improvements, repairs, renewals or replacements; provided, that if the Corporation shall first
(a) furnish to the Trustee an Opinion of Counsel, addressed to the Trustee and the owners of all
Outstanding Bonds, that nonpayment of any such items will not materially endanger the lien of the
Indenture as to any part of the Project and will not subject the Project or any part thereof to loss or
forfeiture, or (b) obtain a surety bond which shall be sufficient in all respects under applicable law
52
to require the lien claimant to discharge his lien against the Project, or (c) obtain title insurance
providing coverage with respect to any such lien, the Corporation may in good faith contest any
mechanics' or other liens filed or established and in such event may permit the items contested to
remain undischarged and/or unsatisfied during the period of such contest and any appeal there from.
Section 5.11. No Liability of Corporation's Officers, Etc. Notwithstanding
anything to the contrary set forth herein, or any other agreement or instrument relating to the Bonds
or the Project, neither the Corporation's officers, directors, employees or agents, nor their heirs,
successors or assigns, shall have any liability, personal or otherwise, for payment or performance of
the covenants or obligations set forth in this Indenture or in any other agreement or instrument
securing the indebtedness and obligations created hereunder.
Section 5.12. Removal of Project Equipment. The Corporation will not remove
or permit the removal of any Project Equipment from the Project Site except in accordance with the
following provisions:
(a) In any instance where the Corporation in its sound discretion
determines that any item of Project Equipment has become inadequate, obsolete, worn out,
unsuitable, undesirable or unnecessary for the operation of the Project, the Corporation may,
at its own expense, remove and dispose of such item of Project Equipment. In the event the
value of such Project Equipment is in excess of $25,000, except as provided in subsection
(b) hereof, the Corporation shall substitute and install other items of machinery, equipment
or other personal property, not necessarily having the same function, provided that such
removal and substitution shall not impair the operating utility of the Project. Subject to the
provisions of Section 5.19, all substituted items shall be installed free of all liens and
encumbrances, other than Permitted Encumbrances, and shall become a part of the Project
as Project Equipment. The Corporation will cooperate with the Trustee and will pay all
costs, including counsel's fees, incurred in subjecting to the lien and security interest of this
Indenture all items so substituted, and the Trustee will cooperate with the Corporation at the
Corporation's expense in securing, if necessary, release of the property for which the
substitution is made under the Deeds of Trust and in providing such bills of sale or other
documents as may be required to facilitate the removal and substitution.
(b) Upon removal of items of Project Equipment of the type described in
subsection (a) above, and provided the operating utility of the Project is not impaired, the
Corporation may decide not to make any substitution and installation of other items of
machinery, equipment or other personal property, provided that (unless the lien of the
Indenture has been discharged under Article XIV thereof), (1) in the case of the sale of any
such Project Equipment, the Corporation shall deposit the sale proceeds in the Redemption
Account, and (2) in the case of a trade-in of any such Project Equipment for items not to be
utilized as a part of the Project, the Corporation shall account for the credit received by it in
the trade-in by depositing an equivalent amount in the Redemption Account. The Trustee
will cooperate with the Corporation at the Corporation's expense in securing a release of the
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property to be removed if required under this Indenture and in securing such bills of sale or
other documents as may be required to facilitate the removal and disposition.
(c) The Corporation shall promptly report to the Trustee by Corporation
Representative's certificate the removal of any Project Equipment pursuant to subsections
(a) or (b) above, and amounts required to be accounted for by the Corporation, if any, shall
promptly be paid to the Trustee for deposit in the Redemption Account after any
substitution, sale, trade-in or other disposition; provided that no certificate need be given or
payment made for the removal and disposition of any item or items of Project Equipment
having a market value of less than $5,000 provided that the market value for any such
uncertificated dispositions shall not exceed $10,000 in any Fiscal Year. When required
pursuant to this subsection (c), the certificate submitted shall specify the items of the Project
Equipment removed, the items of property substituted therefor, if any, and the amount, if
any, required to be paid to the Trustee pursuant to the provisions of this Section 5.18.
Where such certificate indicates that substitute items of property have been acquired and
installed, the certificate shall be accompanied by (i) the financing statement with respect to
such substitute items of property and (ii) a certificate of the Corporation Representative
stating that all steps requisite to perfection of the security interests of the Trustee in and to
such substitute items of Corporation property under this Indenture have been duly taken.
The Corporation will execute all instruments advisable in the opinion of Counsel for
perfection of the respective security interests as aforesaid.
(d) Any amounts paid by the Corporation to the Trustee for deposit in
the Redemption Account pursuant to the provisions of this Section 5.18 shall be deposited
by the Trustee in the Redemption Account and shall be used on the next succeeding Interest
Payment Date on which Series 2003A Bonds mature or are subject to mandatory sinking
fund redemption toward the payment of the principal of the Series 2003A Bonds and
payable, or subject to mandatory sinking fund redemption, on such Interest Payment Date.
Section 5.13. Installation of the Corporation's Equipment. Nothing in this
Indenture shall prevent the Corporation, after delivery of this Indenture, from purchasing items to
be installed pursuant to this Section 5.19 under a conditional sale or lease-purchase contract, or
subject to a vendor's lien or security agreement, as security for the unpaid portion of the purchase
price thereof, provided that no such lien or security interest shall attach to any part of the Project.
(a) The Corporation agrees to protect, defend, hold harmless and indemnify the
Trustee, the Town, and each owner of Bonds, for, from, against and in respect of any and all claims,
losses, liabilities, damages (whether special, consequential or otherwise), settlements, penalties,
interest and expenses (including any professional fees and expenses) which may be suffered or
incurred by any of them relating to, arising out of or resulting from or by reason of any and all
present or future liabilities or obligations under any current federal, state or local law (including
common law), and regulations, orders and decrees relating to pollution control, environmental
protection, health, welfare, public safety, personal injury, property damage or any other type of
claim relating to the Project, with respect to: (i) the handling, storage, use, transportation or
disposal of any hazardous substance by the Corporation in or from the Project; (ii) the handling,
54
storage, use, transportation or disposal (whether or not known to the Corporation) of any hazardous
substance, which hazardous substance was a product, byproduct or otherwise resulted from
operations conducted on the Project; or (iii) any intentional or unintentional emission, discharge or
release (whether or not known to the Corporation) of any hazardous substance into or upon the air,
surface water, ground water or land or any manufacturing, processing, distribution, use, treatment,
disposal, transport or handling of such hazardous substance.
Section 5.14. Tax Covenants. The Corporation covenants with the owners of the
Bonds that, notwithstanding any other provision of this Indenture or any other instrument, it will
make no investment or other use of the proceeds of the Bonds which would cause the Bonds to be
arbitrage proceeds of the Bonds under Section 148 of the Code, and the regulations thereunder, and
it further covenants that it will comply with the requirements of such Section and regulations. The
foregoing covenants shall extend throughout the term of the Bonds, to all funds created under this
Indenture and all moneys on deposit to the credit of any such fund, and to any other amounts which
are Bond proceeds for purposes of Section 148 of the Code, and the regulations thereunder.
The financing, acquisition, construction, and installation of the Project under the
terms and conditions provided for in this Indenture are necessary, convenient, in furtherance of and
will at all times be used in connection with the Corporation's governmental purposes and functions
and is in the best interests of the citizens of the Town, no portion of the Project will be used directly
or indirectly in any trade or business carried on by any person other than a governmental unit of the
State of Colorado and no portion of the proceeds of the Bonds will be loaned directly or indirectly
to any nongovernmental person.
Each apartment unit included in the Project shall be leased only to Qualified
Renters. The Corporation shall require that each Qualified Renter shall execute a rental agreement
in respect of a rental of a dwelling accommodation representing his or her status as a "Qualified
Renter" hereunder and representing that he or she shall not rent all or any part of such dwelling
accommodation or engage in any other business activity on or in such apartment unit. To the extent
necessary to assure continuing exemption from federal income tax of interest on the Bonds, the
Corporation shall take all actions to comply with legislation which requires setting aside units or
rentals to individuals or families of low or moderate income within the meaning of the Code.
The Corporation will not sell, lease or assign its interest in the Project (except
pursuant to the Deeds of Trust) or enter into any management agreement for the Project or permit
any other person to use the Project if such management agreement or use would cause the Bonds to
become "private activity bonds" under Section 141(a) of the Code. The Corporation will not take
any action which would cause the interest on the Series 2003A-13 Bonds to be included in gross
income for federal income tax purposes.
Nothing in this Section 5.14 shall prevent the Corporation from issuing taxable
Bonds, the interest on which is not intended to be excluded from gross income for purposes of
federal income tax.
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Section 5.15. Additional Proiects. The Corporation agrees that it shall incur no
Indebtedness whether or not related to the Project (except to the Town and owners of Subordinate
Bonds under Section 10.02 as herein provided), or expand or materially alter the Project or acquire
or construct additional facilities not a part of the Project, without the consent of the Majority
Interest or as otherwise specifically herein provided.
Section 5.16. Change of Ownership. The Corporation agrees that it will not
consent to any change in ownership of the Project without the consent of owners of a Majority
Interest and the Town and an opinion of Bond Counsel to the effect that such change in ownership
will not adversely affect the exclusion of interest on the Bonds from gross income for federal
income tax purposes.
ARTICLE VI
DAMAGE, DESTRUCTION AND NO CONDEMNATION
Section 6.01. Corporation to Repair, Replace, Rebuild or Restore. (a) If all or
any part of the Project is taken by eminent domain or under the threat thereof, or destroyed or
damaged, the Corporation and the Trustee shall follow the procedures set forth in Section 4.05
hereof.
(b) The Corporation shall not, by reason of the payment of any costs of
repair, rebuilding, replacement or restoration, be entitled to any reimbursement from the
Trustee or any abatement or diminution of the Payments or other sums payable by the
Corporation hereunder. Any balance of Net Loss Proceeds remaining after payment of all
costs of any repair, rebuilding replacement or restoration shall be paid into the Revenue
Fund.
(c) All buildings, improvements and equipment acquired in the repair,
rebuilding, replacement or restoration of the Project, together with any interests in real
property necessary for such restoration, shall be deemed a part of the Project and available
for use and occupancy by the Corporation without the payment of any amounts other than
those provided in Article IV hereof, to the same extent as if they had been specifically
described in this Indenture; provided that no real property, interest in real property,
buildings, improvements or equipment shall be acquired subject to any lien or
encumbrance, other than Permitted Encumbrances.
(d) The Net Loss Proceeds of any (1) insurance or portion thereof
attributable to damage or destruction separately incurred by property of the Corporation not
constituting part of the Project, or (2) condemnation award or portion thereof separately
awarded for damages to or taking of the property of the Corporation not constituting part of
the Project shall be and remain at all times the property of the Corporation not constituting
part of the Project.
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Section 6.02. Cooperation of the Trustee. The Trustee will cooperate fully with
the Corporation, at the Corporation's expense, in filing any proof of loss with respect to any
insurance policy covering casualties referred to in Section 6.01 and Section 4.05 hereof, in the
handling and conduct of any litigation arising with respect thereto, and in the handling and conduct
of any prospective or pending condemnation proceedings affecting the Project or any part thereof,
and will, to the extent it may lawfully do so, permit the Corporation to litigate in any such litigation
or proceeding in the name and on behalf of the Trustee. Provided that no Event of Default has
occurred and is continuing hereunder, the Trustee will not voluntarily settle or consent to the
settlement of any proceeding arising out of any insurance claim, or any prospective or pending
condemnation proceeding, with respect to the Project or any part thereof without the prior written
consent of the Corporation.
ARTICLE VII
CORPORATION'S OPTIONS
Section 7.01. Easements and Release of Real Property. The Corporation may
with the consent of a Majority Interest (a) convey an easement affecting, or fee title to, any part of
the Project Site to a corporate utility or public body, and the same shall be released from the lien of
this Indenture or (b) direct that the Trustee subordinate the lien of this Indenture thereto, upon
written certification by an Independent Engineer that the conveyance will not impair the usefulness
of the Project for the purposes contemplated in this Indenture or the Net Revenues. No such
conveyance or subordination shall result in any abatement of Payments or other sums payable by
the Corporation under this Indenture. The Corporation shall notify the Bondholders of the Series
2003A Bonds of any such conveyance or subordination. No such conveyance or subordination
shall become effective until the following items are filed with the Trustee and the Trustee has
executed the instrument described in paragraph (iv) below:
(i) a copy of the conveyance or subordination document executed or to
be executed by the Corporation or the Trustee;
(ii) a plat or survey of the Project Site, prepared and certified by a
professional land surveyor, showing the real property to be conveyed or subjected to the
easement as described in the conveyance, and the location in relation thereto of all
buildings, structures and permanently installed equipment on the land, and all other
easements, roads, tracks and utility installations;
(iii) the certificate of the Independent Engineer referred to above; and
(iv) any instrument to be executed by the Trustee, and a copy thereof for the
files of the Trustee, releasing the land from the lien of this Indenture and the Deeds of Trust
or establishing the easement as a Permitted Encumbrance under the Indenture, as the case
may be.
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Section 7.02. Prepayment of Payments. So long as all amounts which have
become due pursuant to Section 5.04 hereof have been paid and the Corporation is not in default
hereunder, and so long as any Bonds to be redeemed with proceeds of the prepayment described in
this Section 7.02 are subject to redemption, the Corporation, with the consent of a Majority Interest,
may pay in advance all or part of the amounts to become due pursuant to Section 5.04 if not less
than 45 days prior to such prepayment the Corporation (i) gives the Trustee notice of its intent to
prepay, (ii) deposits with the Trustee an amount sufficient (as determined by a report of a certified
public accountant) to provide the redemption price of the Bonds to be prepaid on the date
established, in accordance with this Indenture, for redemption, and (iii) directs the Trustee to
redeem the Bonds. Such prepayment may result in a prepayment penalty being imposed upon the
Corporation in accordance with the terms and conditions of the Supplemental Agreement.
Section 7.03. Satisfaction of Payments. If at any time the Corporation deposits
with the Trustee for deposit to the Bond Fund an amount of cash as described in Section 7.02 of this
Indenture which, taking into account any balance which may then be on hand in the Bond Fund, is
sufficient to pay all of the then Outstanding Bonds in accordance with Section XIV of the
Indenture, and to pay such interest thereon as is required, and to pay all fees and charges of the
Trustee which are due or to become due on or before the date on which the last of the Bonds to be
so discharged may be redeemed, under circumstances not otherwise resulting in termination of this
Indenture, and if the Corporation is not at the time otherwise in default hereunder, subject to the
rights of the Town under the Project Agreement and the requirements of Section 14.02 hereof, the
Corporation shall be entitled to use and occupy the Project from the date on which such aggregate
funds are in the hands of the Trustee until the Bonds are no longer outstanding or its earlier
termination under the provisions hereof, without the further payment of Payments but otherwise on
the terms and conditions herein set forth, provided, however, that the Corporation shall not be
relieved of its obligations under Sections 9.02, 9.03, 5.04(c), and 4.06 hereof.
Section 7.04. Termination Upon Retirement of Bonds. At any time when no
Bonds remain Outstanding, or if the conditions specified in Section 7.03 hereof for the satisfaction
of Payments then exist, and arrangements satisfactory to the Trustee have been made for the
discharge of all other accrued liabilities under this Indenture, this Indenture shall terminate,
provided, however, that the Corporation shall not be relieved of its obligations under Sections
5.04(c) and 4.06 hereof.
ARTICLE VIII
SECURITY FOR AND INVESTMENT OR DEPOSIT OF FUNDS
Section 8.01. Deposits and Security Therefor. All moneys received by the
Trustee under this Indenture shall, except as hereinafter provided, be deposited as trust funds with
the Trustee, until or unless invested or deposited as provided in Section 8.02. All deposits with the
Trustee (whether original deposits under this Section or deposits or re-deposits in time accounts
under Section 8.02) shall be secured by obligations described in Section 8.02(i), (ii) or (iii) hereof
or by the Federal Deposit Insurance Corporation.
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Section 8.02. Investment or Deposit of Funds. The Trustee shall, at the request
and written direction of the Corporation so long as there is no Event of Default under Section 10.01
hereof, invest moneys held in any Fund or Account established under this Indenture exclusively in
the types of obligations described in this Section, or deposit such moneys in time accounts
(including accounts evidenced by time certificates of deposit), which may be maintained with the
commercial department of the Trustee or with its affiliate, secured as provided in Section 8.01
above and under the terms permitted by applicable law; provided that all investments shall mature,
or be subject to redemption by the owner at not less than the principal amount thereof or the cost of
acquisition, whichever is lower -- and all deposits in time accounts shall be subject to withdrawal --
not later than the date when the amounts will foreseeably be needed for purposes of this Indenture.
The .investments permitted under this Section shall include: (i) obligations issued or the timely
payment of principal and interest on which is fully guaranteed by the United States of America;
(ii) obligations issued or the timely payment of principal and interest on which is fully guaranteed
by any person controlled or supervised by and acting as an instrumentality of the United States of
America pursuant to authority granted by the Congress of the United States; (iii) obligations issued
or guaranteed by any state of the United States or the District of Columbia rated within the highest
rating category by Standard & Poor's Corporation and Moody's Investors Service, Inc.; (iv)
commercial or finance company paper receiving the highest rating of Standard & Poor's
Corporation and Moody's Investors Service, Inc.; (v) bankers' acceptances drawn on and accepted
by commercial banks having combined capital and surplus of not less than $50,000,000;
(vi) repurchase agreements fully secured by obligations of the type specified in (i) and (ii) above;
(vii) certificates of deposit issued by commercial banks having combined capital and surplus of not
less than $50,000,000; (viii) money market mutual funds invested primarily in (i), (ii) or (iii), above
and rated in one of the two highest rating categories by Standard & Poor's Corporation and Moody's
Investors Service, Inc.; (ix) investment agreements issued by financial institutions having an
unsecured credit rating in one of the top two rating categories by Moody's Investors Service, Inc. or
Standard & Poor's Corporation and providing for collateralization or replacement in order to
maintain such rating in the event that the credit rating of the issuer of such agreement is withdrawn
or reduced below such categories; and (x) any other investments approved by the Majority Interest.
All repurchase agreements shall be with (a) a registered broker/dealer that is a Primary Dealer or is
subject to the Securities Investors' Protection Corporation jurisdiction, or (b) any bank which is a
member of the Federal Deposit Insurance Corporation and which has combined capital, surplus and
undivided profits of not less than $50,000,000, provided: (1) the securities are held by the Trustee
or a third parry acting solely as agent for the Trustee which is (a) a Federal Reserve bank, or (b) a
bank which is a member of the Federal Deposit Insurance Corporation and which has combined
capital, surplus and undivided profits of not less than $25,000,000; (2) a perfected first security
interest under the Uniform Commercial Code, or book entry procedures prescribe at
31 C.F.R. 306.1 et seq. or 31 C.F.R. 350.00 et seq. in such securities is created for the benefit of the
Trustee; (3) the percentage of the fair market value of the securities in relation to the amount of the
repurchase obligation, including principal and interest, is equal to at least: (a) 105%, if the financial
institution has an uninsured, unsecured and unguaranteed obligation rated in one of the top two
rating categories by either Moody's Investors Service, Inc. or Standard & Poor's Corporation, or (b)
116%, if the financial institution does not carry the ratings specified in (a) above, with the
additional requirements that the repurchase agreement will have a term to maturity of thirty days or
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less, and the Trustee will value the collateral securities no less frequently than weekly and will
liquidate the collateral securities if any deficiency in the required collateral percentage is not
restored within two business days of such valuation.
Interest and income received upon investment of moneys in the following funds and
accounts shall be deposited in the Revenue Fund: the Excess Investment Earnings Fund and the
Surplus Account. Interest and income received upon investment of moneys in the Senior Bonde
Account and the Subordinate Bond Account of the Bond Fund shall be deposited in the Senior
Bond Account of the Bond Fund. Otherwise, the interest and income received upon such
investments of any Fund or Account and any profit or loss resulting from the sale of any investment
shall be added or charged to such Fund or Account. The Corporation shall restore to the
appropriate Fund or Account all amounts necessary to cover all losses resulting from the sale of any
investments.
Any investment acquired with proceeds of the Bonds, including investment in a
guaranteed investment contract, should be acquired at fair market value within the meaning of
Treas. Reg. § 1.148-5(d)(6).
ARTICLE IX
REDEMPTION OF BONDS
Section 9.01. Bonds Subiect to Redemption; Selection of Bonds to be Called
for Redemption. The Bonds are subject to redemption prior to maturity as provided in the form of
Bonds hereinbefore recited. Unless otherwise provided in respect of a series of Bonds, if less than
all the Bonds of a series or of a maturity are to be redeemed, the particular Bonds of such series or
maturity to be called for redemption shall be selected by lot by the Trustee in any manner deemed
fair and reasonable by the Trustee and in the case of optional or extraordinary mandatory
redemptions, in such order of maturities as shall be specified by the Corporation Representative so
as to best maintain level annual debt service on the Series 2003A Bonds, Subordinate Bonds and
any Additional Bonds issued on a parity therewith, not including the final payment of principal.
For all purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Bonds shall relate, in the case of any Bond redeemed or to
be redeemed only in part, to the portion of the principal of such Bond which has been or is to be
redeemed.
Section 9.02. Notice of Redemption. One Business Day's notice to Owners shall
be required in connection with either optional redemptions or mandatory redemptions of the
Subordinate Bonds and optional redemptions of the Series 2003A Bonds and Additional Bonds
secured on a parity therewith. When required to redeem Bonds under any other provision of this
Indenture, the Trustee shall cause notice of the redemption to be given by first-class mail, postage
prepaid, mailed to all registered owners of Bonds to be redeemed at their registered address not
more than 30 days nor less than 15 days prior to the redemption date. In addition, the Trustee shall
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send a copy of such notice by registered or certified mail or overnight delivery service, return
receipt requested, postage prepaid, to each registered securities depository and nationally
recognized information service that disseminates redemption information, sent at least two
Business Days in advance of the mailing of notice to Bondholders. In addition the Trustee shall at
all reasonable times make available to any interested party complete information as to Bonds which
have been redeemed or called for redemption. Any such notice shall be given in the name of the
Corporation, shall identify the Bonds to be redeemed (and, in the case of partial redemption of any
Bonds, the respective principal amounts thereof to be redeemed), shall specify the redemption date
and the redemption price, shall state that on the redemption date the Bonds called for redemption
will be payable at the principal corporate trust office of the Trustee that from that date interest will
cease to accrue. Failure to mail any notice or defect in the mailed notice or in the mailing thereof in
respect of any Bond shall not affect the validity of the redemption of any other Bond.
If at the time of mailing of notice of an optional redemption there shall not have
been deposited with the Trustee moneys sufficient to redeem all the Bonds called for redemption,
such notice may state that it is conditional, that is, subject to the deposit of the redemption moneys
with the Trustee not later than the opening of business five Business Days prior to the scheduled
redemption date, and such notice shall be of no effect unless such moneys are so deposited. In the
event sufficient moneys are not on deposit on the required date, then the redemption shall be
canceled and on such cancellation date notice shall be mailed to the holders of such Bonds, to be
redeemed in the manner provided in the form of Bonds hereinbefore recited.
Section 9.03. Payment of Redemption Price. If (a) unconditional notice of
redemption has been duly provided or duly waived by the owners of all Bonds called for
redemption or (b) conditional notice of redemption has been so given or waived and the redemption
moneys have been duly deposited with the Trustee, then in either case the Bonds called for
redemption shall be payable on the redemption date at the applicable redemption price. Payment of
the redemption price together with the premium, if any, and accrued interest shall be made by the
Trustee to or upon the order of the owners of the Bonds called for redemption upon surrender of
such Bonds. The redemption price and premium, if any, in respect of Bonds, the expenses of giving
notice and any other expenses of redemption (except accrued interest), shall be paid out of the Fund
from which redemption is to be made or from other moneys which the Corporation makes available
for such purpose. Accrued interest shall be paid out of the Bond Fund.
Section 9.04. Bonds Redeemed in Part. Any Bond which is to be redeemed only
in part shall be surrendered at a place stated for the surrender of Bonds called for redemption in the
notice provided for in Section 9.02 (with due endorsement by, or a written instrument of transfer in
form satisfactory to the Trustee duly executed by, the owner thereof or his attorney duly authorized
in writing) and the Corporation shall execute and the Trustee shall authenticate and deliver to the
owner of such Bond without service charge, a new Bond or Bonds, of any authorized denomination
as requested by such owner in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Bond so surrendered.
Section 9.05. Bond Redemption Fund for Refunding Issues. Whenever the
Corporation issues Bonds hereunder for refunding purposes, the Corporation may, by supplemental
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indenture authorizing the Bonds, direct the Trustee to establish a separate bond redemption fund
and to deposit therein the proceeds of the refunding Bonds. The supplemental indenture shall
specify the investment and application of amounts so deposited including, without limitation, the
transfer thereof to any other fiscal agent or trustee of the Corporation and the time and conditions
for such transfer.
ARTICLE X
EVENTS OF DEFAULT AND REMEDIES
Section 10.01. Events of Default Defined. Subject to the limitation that
nonpayment of (i) principal of or premium, if any, or interest on any Subordinate Bond or (ii) any
amounts owing to the Town pursuant to the exercise of its rights under Section 10.02 or Section
14.02 hereof or under the Project Agreement shall not constitute alone an Event of Default while
any Series 2003A Bonds or Additional Bonds secured on a parity therewith are Outstanding or
remain unpaid, each of the following shall be an "Event of Default" hereunder:
A. If payment of the principal or redemption price of, or any premium
on, any Bond is not made when it becomes due and payable at maturity or upon call for
redemption; or
B. If the required payment is not made into any sinking fund established
pursuant to this Indenture when the same is due and payable; or
C. If the payment of any installment of interest on any Bond is not made
when it becomes due and payable; or
D. If a failure to maintain a Debt Service Coverage Ratio of 100%
occurs; or
E. If (i) any Monthly Payment required under the first paragraph of
Section 5.04 hereof with respect to principal of or interest on any Series 2003A Bond or any
Additional Bond secured on a parity therewith is not made when such Monthly Payment is
due, (ii) any monthly payment required to be made to the Replacement Reserve Fund
pursuant to Section 4.08(a) hereof, or (iii) payment of any premium with respect to
insurance required under Section 5.11 hereof, is not made when such payment is due; or
F. If a default shall be made in the due and punctual observance or
performance of any covenant, contract or other provision in the Bonds, the Deeds of Trust,
or this Indenture contained (other than as referred to in A, B, C, or D of this Section) and
such default shall continue for a period of 30 days after written notice specifying such
default and requiring the same to be remedied shall have been given to the Corporation by
the Trustee; or
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G. If an "Event of Default" as defined in the Deeds of Trust occurs; or
H. If an "Event of Default" as defined in the Supplemental Agreement
occurs; or
1. If the Corporation shall
(i) admit in writing its inability to pay its debts generally
as they become due; or
(ii) file a petition in bankruptcy to be adjudicated a
voluntary bankrupt or file a similar petition under any insolvency act,
or approve or consent to any such petition filed against it; or
(iii) make an assignment for the benefit of its creditors; or
(iv) consent to the appointment of a receiver of itself or of
the whole or any substantial part of its property; or
(v) on a petition in bankruptcy filed against it, be
adjudicated a bankrupt or if a court of competent jurisdiction shall
enter an order or decree appointing a receiver or trustee of the
Corporation or of the whole or substantially all of its property, and
such adjudication, order or decree shall not be vacated or set aside or
stayed within 30 days from the date of the entry thereof.
Any Event of Default described in Sections 10.01(F), (G) or (H) hereof may be
waived by the Trustee with the consent of the Majority Interest if the Corporation is proceeding
with all due diligence to cure such default and the Corporation is not otherwise in default
hereunder. Any other Event of Default hereunder shall be waived by the Trustee only upon
direction of the Majority Interest.
Except for (i) a default under A, B, C, D, or E of this Section 10.01, or (ii) the
failure of the Corporation to file any financial statements, documents or certificates specifically
required to be filed with the Trustee pursuant to the provisions of this Indenture or the Deeds of
Trust, or (iii) any other event of which the "responsible trust officer" has "actual knowledge" and
which event, with the giving of notice or lapse of time or both, would constitute an Event of Default
under this Indenture, the Trustee shall not be deemed to have notice of any default or event unless
specifically notified in writing of such event by the Corporation, or the owners of at least 25% in
aggregate outstanding principal amount of the Series 2003A Bonds and any Additional Bonds
secured on a parity therewith. The Trustee shall immediately give notice to the Town and the
owners of the Series 2003A Bonds of the occurrence of any default or event of which it has, or is
deemed to have, notice pursuant to the foregoing provisions. As used above, the term "responsible
trust officer" means the trust officer of the Trustee assigned to supervise this Indenture, and
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"actual knowledge" means the actual fact or statement of knowing, without any duty to make any
investigation with regard thereto.
Section 10.02. Acceleration and Annulment Thereof. Subject to Section 10.06, if
any Event of Default occurs, the Trustee shall, subject to the rights of the Town set forth in this
Section 10.02, upon request of the Majority Interest, by notice in writing to the Corporation declare
the principal of all Bonds then Outstanding to be immediately due and payable; and upon such
declaration the said principal, together with premium, if any, and interest accrued thereon, shall
become due and payable immediately at the place of payment provided therein, anything in the
Indenture or in said Bonds to the contrary notwithstanding; provided that, the principal of all Bonds
shall be deemed to be due and payable without declaration or further notice immediately upon the
occurrence of an Event of Default specified in Section 10.01(1) hereof.
If, after the principal of the Series 2003A Bonds and Additional Bonds issued on a
parity therewith has been so declared to be due and payable, all arrears of interest upon such Bonds
(and interest on overdue installments of interest at the rate borne by such Bonds) are paid or caused
to be paid by the Corporation, and the Corporation also performs or causes to be performed all
other things relating to such Bonds in respect to which it may have been in default hereunder and
pays or causes to be paid any amounts that may have previously been paid by the Town to cure such
default with interest thereon at the highest rate then borne by the Bonds and the reasonable charges
of the Trustee, the Town and the Bondholders, including reasonable attorney's fees, then, and in
every such case, the Majority Interest, by notice to the Corporation and to the Trustee, may annul
such declaration and its consequences and such annulment shall be binding upon the Trustee and
upon all owners of Bonds issued hereunder; but no such annulment shall extend to or affect any
subsequent default or impair any right or remedy consequent thereon.
Notwithstanding the foregoing, upon the occurrence of an Event of Default, the
Trustee shall within five days of such occurrence, provide notice to the Town and the owners of the
Subordinate Bonds, and the Town (and if the Town fails to act, the owners of the Subordinate
Bonds) shall have the option, to cure such Event of Default within 90 days after receipt of notice;
provided that Bonds may still be declared due and payable as provided in this Indenture prior to the
expiration of such 90-day period, but such declaration shall be immediately annulled in the event
the Town or any owner of Subordinate Bonds cures the Event of Default within the 90-day period.
Amounts advanced by the Town or any owner of Subordinate Bonds as a result of the exercise of
this option to cure monetary defaults hereunder and reasonable, direct expenses of the Town and
the owners of the Subordinate Bonds advanced to cure non-monetary defaults hereunder shall be
deemed to be Indebtedness of the Corporation to the Town or any owner of Subordinate Bonds,
subordinate to the Series 2003A Bonds and Additional Bonds issued on a parity therewith but
entitled to payment from the Revenue Fund on a basis superior to the Subordinate Bonds pursuant
to Section 4.06 hereof. Such Indebtedness shall not be secured by the Deeds of Trust and, so long
as the Series 2003A Bonds or any Additional Bonds secured on a parity therewith are outstanding,
the Town or any owner of Subordinate Bonds shall not sue for unpaid amounts on such
Indebtedness without the written consent of the Majority Interest. Nothing herein shall be
construed to create any obligation of the Town or any owner of Subordinate Bonds to cure any
Event of Default.
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Section 10.03. Legal Proceedings by Trustee. If any Event of Default has
occurred and is continuing, the Trustee in its discretion may, and upon the written request of the
Majority Interest and receipt of indemnity to its satisfaction, shall, in its own name, or in
combination with the Corporation:
A. By suit, action or proceeding at law or in equity, enforce all rights
of the Bondholders, including the right to require collection of the amounts payable under
the Bonds and to require the carrying out of any other provisions of this Indenture and the
Deeds of Trust for the benefit of the Bondholders;
B. Bring suit upon the Bonds;
C. By action or suit in equity enjoin any acts or things which may be
unlawful or in violation of the rights of the Bondholders; and
D. Cause the Corporation to retain, at the Corporation's expense, a
Management Consultant to review the Project for the purpose of recommending
improvements thereto.
Section 10.04. Discontinuance of Proceedings by Trustee. If any proceeding
taken by the Trustee on account of any Event of Default is discontinued or is determined adversely
to the Trustee, the Corporation, the Trustee and the Bondholders shall be restored to their former
positions and rights hereunder as though no such proceeding had been taken, but subject to the
limitations of any such adverse determination.
Section 10.05. Bondholders May Direct Proceedings. The Majority Interest shall
have the right, by an instrument or concurrent instruments in writing delivered to the Trustee, to
direct the method and place of conducting all remedial proceedings to be taken by the Trustee
hereunder provided that such directions shall not be otherwise than in accordance with the law or
the provisions of this Indenture. Without limitation of the foregoing, any such remedial proceeding
may include forbearance or non-action on the part of the Trustee, the acceptance by the Trustee, as
beneficiary under the Deeds of Trust, of a deed in lieu of foreclosure, the sale of the property
covered by the Deeds of Trust free of the lien thereof for an amount less than the amounts due with
respect to the Bonds and the waiver of claims or the granting of a covenant not to sue.
Section 10.06. Limitations on Actions by Bondholders. No Bondholders shall
have any right to pursue any remedy hereunder unless:
(a) the Trustee shall have been given written notice of an Event of
Default,
(b) the owners of at least 25% in principal amount of the Series 2003A
Bonds and any Additional Bonds on a parity therewith Outstanding (at least 25% in
principal amount of the Series 1998B Subordinate Bonds and Series 1998C Subordinate
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Bonds and all Additional Bonds secured on a parity with both Series of Bonds) respecting
which there has been an Event of Default shall have requested the Trustee, in writing, to
exercise the powers hereinabove granted or to pursue such remedy in its or their name or
names,
(c) the Trustee shall have been offered indemnity satisfactory to it
against costs, expenses and liabilities such satisfaction in all respects subject to
Section 10.13 hereof, and
(d) the Trustee shall have failed to comply with such request within a
reasonable time;
provided, however, that nothing herein shall preclude the owner of any Series 2003A Bond with
respect to which an Event of Default under Section 10.01 A, B or C has occurred and is continuing
from bringing an action at law to enforce the right of payment on such Bond, provided, that the
right of any individual Bondholder to receive principal or interest on its Bond may be amended
pursuant to Section 13.02 hereof.
Notwithstanding the foregoing or any other provision of this Indenture, the Owners
of a Majority Interest shall have the right to take any and all actions to enforce this Indenture and
the Deeds of Trust in their own name or, upon providing reasonable indemnity for costs or
liabilities arising therefrom, in the name of the Trustee. In the event that such Majority Interest
owners elect to take such action, they shall notify the Trustee in writing of their election and any
costs incurred in connection with the taking of such action shall be treated as costs of the Trustee
and shall be subject to the same repayment, lien and security rights.
No owner of any Subordinate Bonds shall have any right to institute any judicial or
other action or remedial proceeding (including, without limitation, bankruptcy or insolvency
proceedings) against the Corporation or against the Project or any of the Corporation's other rights,
interests, assets or properties, to collect any moneys due, to enforce payment on its Bond or to
accelerate payment on its Bond so long as the Series 2003A Bonds remain Outstanding without the
written consent of a Majority Interest. Any action commenced by an owner of any Subordinate
Bonds shall terminate upon annulment of the acceleration of the Series 2003A Bonds.
Section 10.07. Trustee May Enforce Rights Without Possession of Bonds. All
rights under the Indenture and the Bonds may be enforced by the Trustee without the possession of
any Bonds or the production thereof at the trial or other proceedings relative thereto, and any
proceedings instituted by the Trustee shall be brought in its name for the ratable benefit of the
owners of the Bonds, subject to the priorities and limitations set forth in this Indenture.
Section 10.08. Delays and Omissions Not to Impair Rights. No delay or
omission in respect of exercising any right or power accruing upon any Event of Default shall
impair such right or power or be a waiver of such Event of Default and every remedy given by this
Article may be exercised from time to time and as often as may be deemed expedient.
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Section 10.09. Application of Moneys in Event of Default. Upon the occurrence
of any Event of Default, the Trustee shall not disburse any moneys from any fund or account
established hereunder without the written consent of the Majority Interest. All moneys received by
the Trustee pursuant to any right given or action taken under the provisions of this Article X or the
Deeds of Trust shall be deposited in the Bond Fund and, after payment of the cost and expenses of
the proceedings resulting in the collection of such moneys and of the expenses, liabilities, and
advances incurred, or made by the Trustee or owners of the Series 2003A Bonds or any Additional
Bonds secured on a parity therewith, including reasonable attorneys fees, and all other current
outstanding fees and expenses of the Trustee, such moneys shall be applied in the order set forth
below:
(a) Unless the principal on all Bonds shall have become or been
declared due and payable, all such moneys shall be applied:
First: To the payment of all installments of interest then due on the Series 2003A
Bonds and Additional Bonds secured on a parity therewith, with interest on such overdue interest at
the rate per annum borne by such Bonds and, if the amount available shall not be sufficient to pay
in full any particular installment together with such interest, then to the ratable payment of the
amounts due on such installment;
Second: To the payment of the unpaid principal of any of the Series 2003A Bonds
and Additional Bonds secured on a parity therewith which shall have become due (other than
Bonds called for redemption for the payment of which moneys are held pursuant to the provisions
of the Indenture), with interest on such Series 2003A Bonds at the rate per annum borne by such
Bonds from the respective dates upon which they become due and, if the amounts available shall
not be sufficient to pay in full Series 2003A Bonds due on any particular date, together with such
interest, then to the ratable payment of the amounts due on such date;
Third: To the payment to the Town of Indebtedness to the Town under
Section 10.02 hereof,
Fourth: To the ratable payment of Indebtedness owing to any owners of
Subordinate Bonds under Section 10.02 hereof,
Fifth: To the payment of all installments of interest then due on the Series 1998B
Subordinate Bonds and Additional Bonds secured on a parity therewith with interest or such
overdue interest at a rate of interest borne thereby, and, if the amount available shall not be
sufficient to pay in full any particular installment together with such interest, then to the ratable
payment of the amounts due on such installment;
Sixth: To the payment of the unpaid principal of any of the Series 1998B
Subordinate Bonds and Additional Bonds secured on a parity therewith called for redemption for
the payment of which moneys are then held pursuant to the provisions of the Indenture, with
interest on such Series 1998B Subordinate Bonds from the respective dates upon which they
became due and, if the amount available shall not be sufficient to pay in full Series 1998B
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Subordinate Bonds due on any particular date, together with such interest, then to the ratable
payment of the amounts due on such date;
Seventh: To the payment of all installments of interest then due on the Series
1998C Subordinate Bonds and Additional Bonds secured on a parity therewith with interest or such
overdue interest at a rate of interest borne thereby, and, if the amount available shall not be
sufficient to pay in full any particular installment together with such interest, then to the ratable
payment of the amounts due on such installment;
Eighth: To the payment of the unpaid principal of any of the Series 1998C
Subordinate Bonds and Additional Bonds secured on a parity therewith called for redemption for
the payment of which moneys are then held pursuant to the provisions of the Indenture, with
interest on such Series 1998C Subordinate Bonds from the respective dates upon which they
became due and, if the amount available shall not be sufficient to pay in full Series 1998C
Subordinate Bonds due on any particular date, together with such interest, then to the ratable
payment of the amounts due on such date;
(b) If the principal of all the Bonds shall have become or been declared
due and payable, all such moneys shall be applied (i) first, to the payment of the principal,
premium, if any, and interest then due and unpaid upon the Series 2003A Bonds and any
Additional Bonds secured on a parity therewith with interest on such overdue amounts at
the rate of 9% per annum, without preference or priority as between principal, premium or
interest on such Series 2003A Bonds, ratably according to the amounts due respectively for
principal, premium and interest to the Persons entitled thereto, (ii) second, to payments of
Indebtedness due to the Town (with interest thereon at the highest rate then borne by the
Bonds) or to any owner of Subordinate Bonds arising under Section 10.02 hereof, and
(iii) third, to the payment of the principal, premium, if any, and interest then due and unpaid
upon the Series 1998B Subordinate Bonds and Additional Bonds secured on a parity
therewith with interest on such overdue amounts at the rate of interest borne thereby,
without preference or priority as between principal, premium or interest on such
installments of interest or Bonds, ratably according to the amounts due respectively for
principal, premium and interest to the Persons entitled thereto; (iv) fourth, to the payment of
the principal, premium, if any, and interest then due and unpaid upon the Series 1998C
Subordinate Bonds and Additional Bonds secured on a parity therewith with interest on
such overdue amounts at the rate of interest borne thereby, without preference or priority as
between principal, premium or interest on such installments of interest or Bonds, ratably
according to the amounts due respectively for principal, premium and interest to the Persons
entitled thereto.
(c) If the principal on all Bonds shall have been declared due and
payable, and if such declaration shall thereafter have been rescinded under this Article then,
subject to paragraph (b) of this Section in the event that the principal of all the Bonds shall
later become or be declared due and payable, the moneys shall be applied in accordance
with paragraph (a) of this Section.
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Any payment or distribution of assets of the Corporation of any kind or character,
whether in cash, instruments, securities or other property, by set-off or otherwise, to which any
Holder of a Subordinate Bond would be entitled but for the provisions hereof, shall be paid by the
Corporation or by any receiver, trustee in bankruptcy, liquidating trustee, agency or other person
making such payment or distribution, directly to the Trustee for payment to the Holders of the
Series 2003A Bonds and Additional Bonds issued on a parity therewith, to the extent necessary to
pay all amounts then due and payable on such Series 2003A and Additional Bonds in full, in cash,
before any payment or distribution is made in respect of the Subordinate Bonds. In the event that
any payment or distribution of assets of the Corporation of any kind or character, whether in cash,
instruments, securities or other property, shall be received by the Holder of a Subordinate Bond in
respect of the Subordinate Bonds from any source, directly or indirectly, such payment or
distribution shall be held in trust for the benefit of, and shall be immediately paid over and
delivered to, the Trustee for payment to the Holders of the Series 2003A Bonds and Additional
Bonds issued on a parity therewith, to the extent necessary to pay all amounts then due and payable
to such Holders of the Series 2003A and such Additional Bonds.
Whenever moneys are to be applied pursuant to this Section, the Trustee shall fix
the date (which shall be the earliest practical date, in the sole discretion of the Trustee, for which
the requisite notice can be given) upon which such application is to be made and upon such date
interest on the amounts of principal to be paid on such dates shall cease to accrue. The Trustee
shall give such notice as it may deem appropriate of the deposit with it of any such moneys and of
the fixing of any such date.
Section 10.10. Trustee and Bondholders Entitled to All Remedies; Remedies
Not Exclusive. It is the purpose of this Article to provide to the Trustee and the Bondholders all
rights and remedies as may be lawfully granted under State law; but should any remedy herein
granted be held unlawful, the Trustee and the Bondholders shall nevertheless be entitled to every
remedy permitted under State law. It is further intended that, insofar as lawfully possible, the
provisions of this Article shall apply to and be binding upon any trustee or receiver appointed under
State law.
No remedy herein conferred is intended to be exclusive of any other remedy or
remedies, and each remedy is in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute.
Section 10.11. Trustee's Right to Receiver. The Trustee shall be entitled as of
right to the appointment of a receiver for the Project ex paiyte and without notice; and the Trustee,
the Bondholders and any receiver so appointed shall have such rights and powers and be subject to
such limitations and restrictions as may be contained in or permitted by State law.
Section 10.12. Bankruptcy Proceedings. The Trustee is hereby authorized and
directed, on behalf of the owners of the Bonds, to file a proof or proofs of claim in any bankruptcy,
receivership or other insolvency proceeding involving the Corporation. With respect to any matter
in any such proceeding which requires the vote of any claimant, the Trustee is hereby authorized
and directed to vote on behalf and in the name of the owners of all Bonds outstanding hereunder in
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the manner designated by the Majority Interest. In order to enable the Trustee to enforce the rights
hereunder of the Series 2003A Bonds and Additional Bonds issued on a parity therewith in any
such action or proceeding, the Trustee is irrevocably authorized and empowered to make and
present for and on behalf of the Holders of Subordinate Bonds such proofs of claims against the
Corporation on account of the Subordinate Bonds or other motions or pleadings as the Trustee may
deem expedient or proper and to vote and take such other actions, in the name of any Bondholder or
otherwise, as the Trustee may deem necessary or advisable. The Holders of the Subordinate Bonds
further agree not to object to, interfere with or oppose any efforts by the Trustee to obtain relief
from the automatic stay under Section 362 of the United States Bankruptcy Code or any of Trustee's
other bankruptcy-related actions.
Section 10.13. Indemnity. Wherever in this Indenture provision is made for
indemnity by the owners of the Series 2003A Bonds, if the owner of the Series 2003A Bonds
providing such indemnity has an aggregate net worth or net asset value of at least $50,000,000, as
set forth in its most recent audited financial statements or as otherwise satisfactorily demonstrated
to the Trustee, the Trustee may not require any indemnity bond or other security for such indemnity.
In any case where more than one owner of the Series 2003A Bonds is providing indemnity, such
indemnity shall be several and not joint and, as to each Owner, such indemnity obligation shall not
exceed its percentage interest of Outstanding Bonds. If provided indemnity, the Trustee shall utilize
counsel or other advisors designated by a Majority Interest of the indemnifying owners of the Series
2003A Bonds to whom the Trustee has no reasonable objection and in the event the Trustee
requires independent counsel, a budget, acceptable to the Trustee, shall be established at or about
the time of the default for the purpose of paying the costs and expenses thereof and the Trustee shall
have the right for reimbursement against the Trust Estate or the indemnifying owners of the Series
2003A Bonds up to the budgeted amount for such costs and expenses. The fees, costs and expenses
of the Trustee arising from any reasonable disagreement with the indemnifying owners of the Series
2003A Bonds shall not be subject to such budget cap.
Section 10.14. Certain Additional Provisions With Respect to Bondholder
Remedies, Receipt of Notice and Other Matters. In the event that a Bond is registered to a
nominee or a securities depository holding such Bond on behalf of a beneficial owner, for purposes
of consents to amendments, receipt of reports and notices and other actions hereunder, and the
direction of election of remedies and proceedings (including, without limitation, acceleration and
waiver of acceleration), the beneficial owner of such Bond upon provision of reasonable evidence
of its status as beneficial owner shall be deemed to be the holder hereunder and shall have the right
to give or receive the aforementioned consents, directions, reports and notices hereunder.
ARTICLE XI
THE TRUSTEE
Section 11.01. Acceptance of Trust. The Trustee accepts and agrees to execute the
trusts hereby created, but only upon the additional terms set forth in this Article, to all of which the
parties hereto and the Bondholders are bound.
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Section 11.02. No Responsibility for Recitals, etc. The recitals, statements and
representations in the Indenture or in the Bonds, save only the Trustee's Certificate upon the Bonds,
have been made by the Corporation and not by the Trustee; and the Trustee shall be under no
responsibility for the correctness thereof.
The Trustee shall not be responsible for the validity or adequacy of this Indenture or
the Bonds or for the validity, priority, recording or re-recording, filing or re-filing of any financing
statements, amendments thereto or continuation statements, except as otherwise provided in
Section 5.06 hereof, provided that the Trustee shall be responsible for filing continuation statements
for the security interests granted under this Indenture and the Deeds of Trust, or for insuring the
Project or collecting any insurance moneys, or for the Corporation's use of the proceeds from the
Bonds or any money paid to the Corporation or upon the Corporation's direction under any
provision hereof, or for the use or application of any money received by any Paying Agent other
than the Trustee, or for the validity of the execution by the Corporation of this Indenture or of any
supplements thereto or instruments of further assurance, or for the sufficiency of the security for the
Bonds issued hereunder or intended to be secured hereby, or for the value or title of the Project or
as to the maintenance of the security hereof; except that in the event the Trustee enters into
possession of a part or all of the Project pursuant to any provision of this Indenture it shall use due
diligence in preserving such property.
Section 11.03. Trustee May Act Through Agents; Answerable Only for Willful
Misconduct or Negligence. The Trustee may exercise any powers hereunder and perform any
duties required of it through attorneys, agents, officers or employees, and shall be entitled to advice
of Counsel concerning all questions hereunder. The Trustee shall not be answerable for the
exercise of any discretion or power under this Indenture nor for anything whatever in connection
with the trust hereunder, except only its own willful misconduct or negligence or that of its agents,
officers and employees.
Section 11.04. Compensation and Indemnity. The Corporation shall pay the
Trustee reasonable compensation for its services hereunder, and also all its reasonable expenses and
disbursements. The Corporation agrees to indemnify the Trustee against any claims arising out of
the exercise and performance of its powers and duties hereunder in good faith and without
negligence.
Section 11.05. Notice of Default; Right to InvestigateSection 11.05. Notice
of Default; Right to Investigate. The Trustee shall, within five days after the occurrence thereof,
give written notice by first-class mail to owners of Bonds, the Town and the Underwriter of all
defaults known to the Trustee and send a copy of such notice to the Corporation, unless such
defaults have been remedied (the term "defaults" for purposes of this Section is defined to include
the events specified in Section 10.01 hereof, not including any notice or periods of grace provided
for therein). The Trustee may, however, at any time require of the Corporation full information as
to the performance of any covenant hereunder; and, if information satisfactory to it is not
forthcoming, the Trustee may make or cause to be made an investigation into the affairs of the
Corporation related to this Indenture and the properties covered hereby.
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Section 11.06. Obligation to Act on DefaultsSection 11.06. Obligation to Act on
Defaults. If any Event of Default shall have occurred and be continuing, the Trustee, as directed by
the owners of the Majority Interest, shall exercise such of the rights and remedies vested in it by this
Indenture and shall use the same degree of care in their exercise as a prudent man would exercise or
use in the circumstances in the conduct of his own affairs; provided, that if in the opinion of the
Trustee such action may tend to involve expense or liability, it shall not be obligated to take such
action unless it is furnished with indemnity reasonably satisfactory to it.
Section 11.07. Provision of Monthly Fund Statements. Section 11.07.
Provision of Monthly Fund Statements. The Trustee shall, upon written request of an
owner of Bonds, provide written monthly fund statements by the 15th day of each month depicting
the balances as of the end of the preceding month in each fund and account established under this
Indenture.
Section 11.08. Reliance on Requisition, Counsel, etc.Section 11.08.
Reliance on Requisition, Counsel, etc. The Trustee may act on any requisition, resolution,
notice, telegram, request, consent, waiver, certificate, statement, affidavit, voucher, bond, or other
paper or document which it in good faith believes to be genuine and to have been passed or signed
by the proper persons or to have been prepared and furnished pursuant to any of the provisions of
the Indenture; and the Trustee shall be under no duty to make any investigation as to any statement
contained in any such instrument, but may accept the same as conclusive evidence of the accuracy
of such statement.
The Trustee will be entitled to rely upon opinions of Counsel and will not be
responsible for any loss or damage resulting from reliance in good faith thereon, except for its own
negligence or willful misconduct.
Section 11.09. Trustee May Own BondsSection 11.09. Trustee June Own
Bonds. The Trustee may in good faith buy, sell, own and hold any of the Bonds and may join in
any action which any Bondholders may be entitled to take with like effect as if the Trustee were not
a party to the Indenture. The Trustee may also engage in or be interested in any financial or other
transaction with the Corporation or the Corporation, provided that if the Trustee determines that any
such relation is in conflict with its duties under this Indenture, it shall eliminate the conflict or
resign as Trustee.
Section 11.10. Construction of Ambiguous Provisions Section 11.10.
Construction of Ambiguous Provisions. The Trustee may construe any ambiguous or
inconsistent provisions of this Indenture, and any such construction by the Trustee shall be binding
upon the Bondholders. In construing any such provision, the Trustee will be entitled to rely upon
opinions of Counsel and will not be responsible for any loss or damage resulting from reliance in
good faith thereon except for its own negligence or willful misconduct.
Section 11.11. Resignation of TrusteeSection 11.11. Resignation of
Trustee. The Trustee may resign and be discharged of the trusts created by this Indenture by written
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resignation filed with the Corporation not less than 60 days before the date when it is to take effect,
with copies of such notice to the owners of the Series 2003A Bonds and Additional Bonds secured
on a parity therewith; and Additional Bonds secured on a parity therewith provided notice of such
resignation is mailed by registered or certified mail to all Bondholders not less than three weeks
prior to the date when the resignation is scheduled to take effect. Such resignation shall take effect
only upon the appointment of a successor trustee.
Section 11.12. Removal of TrusteeSection 11.12. Removal of Trustee. Any
Trustee hereunder may be removed at any time by an instrument appointing a successor to the
Trustee so removed, executed by the Majority Interest and filed with the Trustee and the
Corporation.
Section 11.13. Appointment of Successor TrusteeSection 11.13. Appointment
of Successor Trustee. If the Trustee or any successor trustee resigns or is removed (other than
pursuant to Section 11.12 hereof) or dissolved, or if its property or business is taken under the
control of any state or federal court or administrative body, a vacancy shall forthwith exist in the
office of the Trustee, and the Corporation (so long as there is no Event of Default hereunder) shall
appoint a successor who shall be acceptable to the Majority Interest and shall mail notice of such
appointment by registered or certified mail to all Bondholders. If the Corporation fails to make such
appointment within 30 days after the date notice of resignation is filed, if there is an Event of
Default hereunder, or if the Trustee is removed pursuant to Section 11.12 hereof, the Majority
Interest may appoint a successor Trustee.
Section 11.14. Qualification of SuccessorSection 11.14. Qualification of
Successor. A successor trustee shall be a national bank with trust powers or a bank and trust
company or a trust company organized under the laws of one of the States of the United States, in
each case having capital and surplus of at least $50,000,000, if there be one able and willing to
accept the trust on reasonable and customary terms.
Section 11.15. Instruments of SuccessionSection 11.15. Instruments of
Succession. Any successor trustee shall execute, acknowledge and deliver to the Corporation an
instrument accepting such appointment hereunder; and thereupon such successor trustee, without
any further act, deed or conveyance, shall become fully vested with all the estates, properties, rights,
powers, trusts, duties and obligations of its predecessor in the trust hereunder, with like effect as if
originally named Trustee herein. The Trustee ceasing to act hereunder shall pay over to the
successor trustee all moneys held by it hereunder; and, upon request of the successor trustee, the
Trustee ceasing to act and the Corporation shall execute and deliver an instrument transferring to
the successor trustee all the estates, properties, rights, powers and trusts hereunder of the Trustee
ceasing to act. The Corporation shall be provided with a copy of each instrument mentioned herein.
Section 11.16. Merger of TrusteeSection 11.16. Merger of Trustee. Any
corporation into which any Trustee hereunder may be merged or with which it may be consolidated,
or any corporation resulting from any merger or consolidation to which any Trustee hereunder shall
be a party, shall be the successor trustee under this Indenture, without the execution or filing of any
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paper or any further act on the part of the parties hereto, anything herein to the contrary
notwithstanding.
Section 11.17. Appointment of Co-TrusteeSection 11.17. Appointment of
Co-Trustee. It is the purpose of this Indenture that there shall be no violation of any law of any
jurisdiction (including particularly the laws of the State of Colorado) denying or restricting the right
of banking corporations or associations to transact business as Trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture, and in particular in case of the
enforcement of any such document in default, or in case the Trustee deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the powers, rights or remedies
herein granted to the Trustee or hold title to the properties, in trust, as herein granted, or take any
other action which may be desirable or necessary in connection therewith, it may be necessary that
the Trustee appoint an additional individual or institution as a separate or Co-Trustee. The
following provisions of this Section are adopted to these ends.
The Trustee may appoint an additional individual or institution as a separate or
Co-Trustee, in which event such and every remedy, power, right, claim, demand, cause of action,
indemnity, estate, title, interest and lien expressed or intended by this Indenture to be exercised by
or vested in or conveyed to the Trustee with respect thereto shall be exercisable by and vest in such
separate or Co-Trustee but only to the extent necessary to enable such separate or Co-Trustee to
exercise such powers, rights and remedies, and every covenant and obligation necessary to the
exercise thereof by such separate or Co-Trustee shall run to and be enforceable by either of them.
Should any deed, conveyance or instrument in writing from the Corporation be
required by the separate or Co-Trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations,
any and all such deeds, conveyances and instruments in writing shall, on request, be executed,
acknowledged and delivered by the Corporation. In case any separate or Co-Trustee, or a successor
to either, shall die, become incapable of acting, resign or be removed, all the estates, properties,
rights, powers, trusts, duties and obligations of such separate or Co-Trustee, so far as permitted by
law, shall vest in and be exercisable by the Trustee until the appointment of a new Trustee or
successor to such separate or Co-Trustee.
Section 11.18. Intervention by TrusteeSection 11.18. Intervention by
Trustee. In any judicial proceeding to which the Corporation is a party and which in the opinion of
the Trustee and its Counsel has a substantial bearing on the interests of owners of the Bonds, the
Trustee may intervene on behalf of Bondholders and shall do so if requested in writing by the
owners of at last 25% in principal amount of Bonds then Outstanding and furnished indemnity.
The rights and obligations of the Trustee under this Section are subject to the approval of a court of
competent jurisdiction.
ARTICLE XII
ACTS OF BONDHOLDERS: EVIDENCE OF OWNERSHIP OF BONDS
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Section 12.01. Acts of Bondholders; Evidence of OwnershipSection 12.01.
Acts of Bondholders; Evidence of Ownership. Any action to be taken by Bondholders may
be evidenced by one or more concurrent written instruments of similar tenor signed or executed by
such Bondholders in person or by agent appointed in writing. The fact and date of the execution by
any person of any such instrument may be proved by acknowledgment before a notary public or
other officer empowered to take acknowledgments of deeds or by an affidavit of a witness to such
execution. Where such execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the
authority of the person executing the same, may also be proved in any other manner which the
Trustee deems sufficient. The ownership of Bonds shall be proved by the Bond Register. Any
action by the owner of any Bond shall bind all future owners of the same Bond in respect of
anything done or suffered by the Corporation or the Trustee in pursuance thereof.
ARTICLE XIII
AMENDMENTS AND SUPPLEMENTS
Section 13.01. Amendments and Supplements Without Bondholders'
ConsentSection 13.01. Amendments and Supplements Without Bondholders' Consent. This
Indenture may be amended or supplemented at any time and from time to time, without notice to or
the consent of the Bondholders by a supplemental indenture authorized by a Certified Resolution
filed with the Trustee, and consented to by the Corporation, for one or more of the following
purposes:
A. to set forth any or all of the matters in connection with the issuance
of Additional Bonds required by Section 3.02 hereof;
B. to add additional covenants of the Corporation or to surrender any
right or power herein conferred upon the Corporation;
C. to cure any ambiguity or to cure, correct or supplement any defective
provision of this Indenture in such manner as shall not be inconsistent with this Indenture
and shall not impair the security hereof or adversely affect the Bondholders;
D. to issue the Bonds of any series in coupon form or in form
acceptable to any securities depository, subject in each case to the receipt by the Trustee of
an opinion of Bond Counsel to the effect that any such changes will not adversely affect the
exemption of interest on the Bonds from federal income tax; and
E. to amend or supplement the provisions of this Indenture in a manner
that would not materially and adversely affect the existing owners of Bonds or the security
afforded by this Indenture.
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Section 13.02. Amendments With Bondholders' ConsentSection 13.02.
Amendments With Bondholders' Consent. Other than amendments permitted under
Section 13.01 hereof and amendments with respect to this Article XIII, this Indenture may be
amended from time to time only with the prior written consent of the Corporation, by a
supplemental indenture approved by the owners of 66 2/3% in principal amount of the Series
2003A Bonds and Additional Bonds issued on a parity therewith, including the modification of
(1) the principal, premium, if any, or interest payable upon any Series of Bonds or the Town
Indebtedness or (2) the dates of maturity or redemption provisions of any Series of Bonds, provided
that no amendment shall be made which adversely affects the Town or any Series of Outstanding
Bonds without the consent of the Town, if affected, or the owners of at least 66 2/3% in principal
amount of the Outstanding Bonds of such Series so affected. This Indenture may be amended with
respect to this Article XIII only with the unanimous consent of all owners of Bonds then
Outstanding, the Town and the Corporation.
Section 13.03. Amendment of Project AgreementSection 13.03. Amendment of
Operating Deficit Agreement . The Project Agreement may be supplemented and amended as
necessary to facilitate the issuance from time to time of the Bonds, to reflect the redemption of the
Bonds, and as otherwise required or requested by the Corporation from time to time.
Section 13.04. Trustee Authorized to Join in Amendments and Supplements;
Reliance on CounselSection 13.04. Trustee Authorized to Join in Amendments and
Supplements, Reliance on Counsel. The Trustee is authorized to join with the Corporation in the
execution and delivery of any supplemental indenture or amendment permitted by this Article XIII
and in so doing shall be fully protected by an opinion of Counsel that such supplemental indenture
or amendment is so permitted and has been duly authorized by the Corporation and that all things
necessary to make it a valid and binding agreement have been done.
ARTICLE XIV.
DEFEASANCE
Section 14.01. DefeasanceSection 14.01. Defeasance. When the principal or
redemption price (as the case may be) of, and premium, if any, and interest on, all Bonds issued
hereunder, and all other amounts due under this Indenture have been paid, or provision has been
made for payment of the same, together with all other sums payable hereunder by the Corporation,
the Trustee's right, title and interest in this Indenture and the moneys payable hereunder shall
thereupon cease and the Trustee, on demand of the Corporation, shall release this Indenture in
respect thereto and shall execute such documents to evidence such release as may be reasonably
required by the Corporation and shall turn over to the Corporation or its assigns all balances then
held by it hereunder not required for the payment of the Bonds and such other sums. If such
payment or provision therefor has been made with respect to all the Bonds of any one series, the
interest of the Trustee shall cease in respect of such series, and the Trustee shall take similar action
for the release of this Indenture.
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Without limiting the generality of the foregoing, provision for the payment of Bonds
shall be deemed to have been made (a) upon the delivery to the Trustee of (i) cash in an amount
sufficient to make all payments specified above, or (ii) non-callable direct obligations of the United
States of America, maturing on or before the date or dates when the payments specified above shall
become due, the principal amount of which and the interest thereon, when due, is or will be, in the
aggregate, sufficient without reinvestment to make all such payments, or (iii) any combination of
cash and such obligations; (b) any Bonds to be redeemed prior to maturity shall have been duly
called for redemption or irrevocable instructions to call such Bonds for redemption shall have been
given to the Trustee; (c) the Corporation, at its expense, obtains from Standard & Poor's
Corporation and Moody's Investors Service, Inc. ratings of "AAA" and "Aaa", respectively for the
Bonds and (d) an opinion of Bond Counsel acceptable to the Trustee that any exclusion from gross
income for federal income tax purposes of the interest on the Outstanding Bonds and any other tax-
exempt Additional Bonds Outstanding will not be impaired by the defeasance. The Trustee shall
also receive a report from an Accountant verifying to the Trustee's satisfaction that the cash and
government obligations delivered will be sufficient to provide for the payment of the Bonds as
aforesaid. Neither the obligations nor moneys deposited with the Trustee pursuant to this Section
shall be withdrawn or used for any purpose other than, and shall be segregated and held in trust for,
the payment of the principal or redemption price of, and premium, if any, and interest, on the
Bonds. In the event that such moneys or obligations are to be applied to the payment of principal or
redemption price of any Bonds more than 60 days following the deposit thereof with the Trustee,
the Trustee shall publish once in an Authorized Newspaper, and send by registered mail to each
owner of Bonds, a notice stating that such moneys or obligations have been deposited and
identifying the Bonds for the payment of which such moneys or obligations are being held.
Section 14.02. Town's Rights.Section 14.02. Town's Rights.
(a) The Corporation covenants and agrees that all activities of the
Corporation shall be undertaken for the benefit of the Town. Upon termination of this Indenture,
the Town shall be entitled to acquire title to the Project without cost.
(b) In furtherance of the Project Agreement, the Town is hereby granted
the right to obtain, at any time, fee title and exclusive possession of property (including the Project)
financed by obligations of the Corporation (including the Bonds) free from liens and encumbrances
created by the Corporation related to the Bonds (but subject to other Permitted Encumbrances), and
any additions to such property by (1) placing into escrow an amount that will be sufficient to
defease such Bonds and other obligations, and (2) paying reasonable costs incident to the
defeasance, each as provided in Section 14.01 hereof. The Town, at any time before it defeases
such obligations, shall not agree or otherwise be obligated to convey any interest in such property to
any person (including the United States of America or its agencies or instrumentalities) for any
period extending beyond or beginning after the Town defeases such obligations. In addition, the
Town shall not agree or otherwise be obligated to convey a fee interest in such property to any
person who was a user thereof, (or a related person) before the defeasance within 90 days after the
Town defeases such obligations.
77
(c) If the Town exercises its option under subsection (b) hereof, the
Corporation shall immediately cancel all encumbrances on such property, including all leases and
management agreements (subject to Permitted Encumbrances as aforesaid). Any lease,
management contract, or similar encumbrance on such property will be considered immediately
canceled if the lessee, management company, or other user vacates such property within a
reasonable time, not to exceed 90 days, after the date the Town exercises its rights under Section (b)
above.
(d) In addition to the foregoing, if pursuant to Article X hereof, the
Trustee declares the principal of any Bonds then Outstanding to be due and payable and any
foreclosure proceeding or other action is commenced under this Indenture or the Deeds of Trust
which could lead to the sale or other disposition of the property pledged thereunder, the Town is
hereby granted an exclusive option to purchase all such property (including the Project) for the
amount of the outstanding indebtedness of the Corporation and accrued interest to the date of
default. The Trustee shall provide notice to the Town of the commencement of any such action
within 10 days of the occurrence thereof. The Town shall have 90 days from the date it is notified
by the Trustee of such action in which to both exercise the option (which shall be exercised by
giving written notice of such exercise to the Trustee and the Corporation) and purchase the
property. The Trustee or any Bondholders responsible for commencing such foreclosure
proceeding or other action shall be required to take any action necessary, including submission of
requests for continuance of foreclosure to the Public Trustee of Eagle County, Colorado, in order to
ensure that the foreclosure sale does not occur prior to the expiration of the 90 day period referred
to herein. Other than the foregoing requirement, the provisions of this Section 14.02 are not
intended and shall not be interpreted so as to limit the Bondholders' rights to pursue their remedies
hereunder and under the Deeds of Trust.
(e) In the event the Town exercises its options under subsection (b) or
(d) hereof, the Town shall receive a credit towards its defeasance or purchase costs in the amount of
any fund or account balances held under this Indenture with the exception of (1) the Excess
Investment Earnings Fund, and (2) any amount needed to pay additional interest on the Bonds or
expenses in connection with such defeasance under Section 14.01 of this Indenture.
(f) Unencumbered fee title (subject to certain Permitted Encumbrances
as aforesaid) to the Project and any additions thereto and exclusive possession and use thereof will
vest in the Town without demand or further action on its part when all obligations issued under the
Indenture (including the Bonds) are discharged. Unless the Bonds are earlier defeased pursuant to
Section 14.01 hereof and subsection (b) of this Section 14.02, for purposes of this subsection (f),
such obligations will be discharged when (1) cash is available at the place of payment on the date
that the obligations are due (whether at maturity or upon call for redemption) and (2) interest ceases
to accrue on the obligations. All leases, management contracts and similar encumbrances on the
Project shall terminate upon discharge of said obligations. Encumbrances that do not significantly
interfere with the enjoyment of such property, such as most easements granted to utility companies,
are not considered encumbrances for purposes of this Section.
78
ARTICLE XV.
MISCELLANEOUS PROVISIONS
Section 15.01. No Personal RecourseSection 15.01. No Personal Recourse. No
recourse shall be had for any claim based on the Indenture or the Bonds, including but not limited
to the payment of the principal or redemption price of, or premium, if any, or interest on, the Bonds,
against any member, officer, agent or employee, past, present or future, of the Corporation or of any
successor body, as such, either directly or through the Corporation or any such successor body,
under any constitutional provision, statute or rule of law or by the enforcement of any assessment or
penalty or by any legal or equitable proceeding or otherwise.
Section 15.02. Deposit of Funds for Payment of BondsSection 15.02.
Deposit of Funds for Payment of Bonds. If there are on deposit with the Trustee funds
(including proceeds of government obligations as provided in Section 14.01) sufficient to pay the
principal or redemption price of any Bonds becoming due, either at maturity or by call for
redemption or otherwise, together with the premium, if any, and all interest accruing thereon to the
due date, all interest on such Bonds shall cease to accrue on the due date and all liability of the
Corporation with respect to such Bonds shall likewise cease, except as hereinafter provided.
Thereafter the owners of such Bonds shall be restricted exclusively to the funds so deposited for
any claim of whatsoever nature with respect to such Bonds and the Trustee shall hold such funds in
trust for such owners.
Moneys (including proceeds of government obligations as provided in
Section 14.01) so deposited with the Trustee which remain unclaimed five years after the date
payment thereof becomes due shall, if the Corporation is not at the time, to the knowledge of the
Trustee, in default with respect to any covenant in the Indenture or the Bonds, be paid to the
Corporation, unless there is a dispute as to the payment thereof, upon receipt by the Trustee of
indemnity satisfactory to it, and the owners of the Bonds for which the deposit was made shall
thereafter be limited to a claim against the Corporation; provided, however, that the Trustee, before
making payment to the Corporation, may send notice by registered mail to each owner of Bonds
who hasn't claimed such moneys at such owner's last known address, stating that the moneys
remaining unclaimed will be returned to the Corporation after a specified date.
Section 15.03. No Rights Conferred on OthersSection 15.03. No Rights
Conferred on Others. Nothing herein contained shall confer any right upon any person other than
the parties hereto, the owners of the Bonds and the Town.
Section 15.04. Illegal, etc. Provisions DisregardedSection 15.04. Illegal, etc.
Provisions Disregarded. In case any provision in this Indenture or the Bonds shall for any reason be
held invalid, illegal or unenforceable in any respect, this Indenture shall be construed as if such
provision had never been contained herein.
79
Section 15.05. Substitute NoticeSection 15.05. Substitute Notice. If for any
reason it shall be impossible to make publication of any notice required hereby in an Authorized
Newspaper, then such publication in lieu thereof as shall be made with the approval of the Trustee
shall constitute a sufficient publication of such notice.
Section 15.06. Notices to Trustee and CorporationSection 15.06. Notices to
Trustee and Corporation. Any notice to or demand upon the Trustee may be served, presented or
made at its corporate trust office at U.S. Bank National Association, 950 17th Street, Denver,
Colorado 80202, Attention: Corporate Trust Department. Any notice to or demand upon the
Corporation shall be deemed to have been sufficiently given or served by the Trustee for all
purposes by being sent by registered United States mail to EagleBend Dowd Affordable Housing
Corporation, c/o Corum Real Estate Group, Inc., as Project Manager, P.O. Box 2090, Edwards,
Colorado 81632, Attention: Project Manager, or such other address as may be filed in writing by the
Corporation with the Trustee.
Section 15.07. Successors and AssignsSection 15.07. Successors and
Assigns. All the covenants, promises and agreements in this Indenture contained by or on behalf of
the Corporation, or by or on behalf of the Trustee, shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed or not.
Section 15.08. Headings for Convenience OnlySection 15.08. Headings for
Convenience Only. The descriptive headings in this Indenture are inserted for convenience only
and shall not control or affect the meaning or construction of any of the provisions hereof.
Section 15.09. Counterparts Section 15.09. Counterparts. This Indenture may be
executed in any number of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same instrument.
Section 15.10. Information Under Commercial CodeSection 15.10.
Information Under Commercial Code. The following information is stated in order to
facilitate filings under the Uniform Commercial Code:
The secured party is U.S. Bank National Association, Trustee. Its address
from which information concerning the security interest may be obtained is 950 17th Street,
Denver, Colorado 80202, Attention: Corporate Trust Department. The debtor is EagleBend
Dowd Affordable Housing Corporation. Its mailing address is P.O. Box 2090, Edwards,
Colorado 81632.
Section 15.11. Payments Due On Saturdays, Sundays and
HolidaysSection 15.11. Payments Due On Saturdays, Sundays and Holidays. In any case
where the date of maturity of interest on or principal of the Bonds or the date fixed for redemption
of any bonds shall be a Saturday or Sunday or a legal holiday or a day on which banking institutions
in the city of payment are authorized by law to close, then payment of interest, premium, if any, or
principal or redemption price need not be made on such date but may be made on the next
succeeding business day with the same force and effect as if made on the date of maturity or the
80
date fixed for redemption, and no interest on such payment shall accrue for the period after such
date.
Section 15.12. Applicable LawSection 15.12. Applicable Law. This
Indenture shall be governed by and construed in accordance with the laws of the State of Colorado.
81
IN WITNESS WHEREOF, intending to be legally bound, EAGLEBEND
DOWD AFFORDABLE HOUSING CORPORATION, has caused this Indenture to be executed
by its President and its corporate seal to be hereunto affixed and attested by its Secretary, U.S.
BANK NATIONAL ASSOCIATION, as Trustee, has caused this Indenture to be executed by one
of its Vice-Presidents, Assistant Vice-Presidents or Trust Officers and its seal to be hereunto affixed
and attested by one of its duly authorized officers, all as of the day and year first above written.
Attest: By:
Secretary
[SEAL]
EAGLEBEND DOWD AFFORDABLE
HOUSING CORPORATION
[SEAL]
Attest:
Assistant Secretary
President
U.S. BANK NATIONAL ASSOCIATION,
Trustee
By:
82
Vice President/Trust Officer
DRAFT: 10/9/03
STATE OF COLORADO )
) ss:
CITY AND COUNTY OF DENVER)
On this, the day of October, 2003, before me, the undersigned notary public,
personally appeared Gerald E. Flynn and Jeffery M. Spanel, who acknowledged themselves to be
President and Secretary of EAGLEBEND DOWD AFFORDABLE HOUSING CORPORATION,
that, as such officials, being authorized to do so, executed the foregoing instrument for the purposes
therein contained by signing and attesting the name of said Corporation as such officials.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
[NOTARIAL SEAL]
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
On this, the day of October, 2003, before me, the undersigned notary public,
personally appeared who acknowledged himself to be a Vice President of
U.S. BANK NATIONAL ASSOCIATION, and that he, as such officer, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing the name of said
Bank by himself as such officer.
I hereby certify that I am not a director or officer of the above named Bank.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
My commission expires:
Notary Public
[NOTARIAL SEAL]
EXHIBIT A
Description of Proiect Site
The following real property and all buildings and improvements, and fixtures or
appurtenances, now or hereafter erected thereon:
Parcel 1:
Tract A: A tract of land in the East half of Section 16, Township 5 South, Range 81 West of the
6th Principal Meridian, County of Eagle, State of Colorado, more fully described as follows:
commencing at the Southeast corner of Section 16; thence North 34 degrees 08 minutes 01 seconds
West, 2348.72 feet to the Point of Beginning, said point being on the Easterly line of the Denver
and Rio Grande Western Railroad; thence Northwesterly 629.55 feet on the arc of a curve to the
left, with a radius of 1495.71 feet and a central angle of 24 degrees 06 minutes 57 seconds (being
subtended by a chord that bears North 37 degrees 59 minutes 19 seconds West, a distance of 624.91
feet); thence North 84 degrees 16 minutes 04 seconds East, 321.88 feet; thence South 82 degrees 32
minutes 46 seconds East, 150.39 feet; thence South 47 degrees 39 minutes 16 seconds East, 122.44
feet; thence South 33 degrees 00 minutes 19 seconds East, 242.45 feet; thence South 24 degrees 53
minutes 35 seconds East, 163.93 feet; thence South 68 degrees 33 minutes 19 seconds West, 145.00
feet; thence South 40 degrees 42 minutes 45 seconds West, 32.20 feet; thence North 51 degrees 05
minutes 45 seconds West, 240.00 feet; thence South 08 degrees 54 minutes 15 seconds West, 65.00
feet; thence South 16 degrees 05 minutes 45 seconds East, 65.00 feet; thence South 67 degrees 24
minutes 15 seconds West, 45.00 feet to the Point of Beginning, County of Eagle, State of Colorado.
Parcel 2:
Parcel 1, Access Parcels, Cliffside Village Condominiums, according to the Plat recorded
August 26, 1992 in Book 587 at Page 778, County of Eagle, State of Colorado.
Parcel 3:
Parcel 2, Access Parcels, Cliffside Village Condominiums, according to the Plat recorded
August 26, 1992 in Book 587 at Page 778, County of Eagle, State of Colorado.
A-1
DRAFT: 10/9/03
EXHIBIT B
Form of Requisition Certificate
MEMORANDUM
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Jeff Layman, Chief of Police
Date: October 1, 2003
Re: IGA-Eagle County Inter-Jurisdictional Emergency Operations Plan
Summary: 24-32-2107 (CRS) requires that municipalities be served by an Emergency
Response Plan to protect their citizens. The Eagle County Emergency Manager has
developed the Eagle County Inter-Jurisdictional Emergency Operations Plan (IEOP).
IEOPs are flexible documents meant to guide emergency officials in managing and
coordinating the overall preparedness, response and recovery activities before, during and
after everyday emergency incidents and "disaster" events that affect our citizens.
Municipalities can develop their own plans or be served by a multi-agency plan. This
agreement simply acknowledges procedures which would most likely be followed now
should a major emergency occur in Avon.
It should be noted that the Avon Police Department is active in the Eagle County
Emergency Medical Service/Public Safety Council, an alliance of all emergency
responders in Eagle County. This forms the basis for close cooperation between all of us
who provide emergency services.
Background: 24-32-2107 (CRS) requires that municipalities be served by an
Emergency Response Plan to protect their citizens. Signing the IGA fulfills the
requirements of this statute. The statute also requires the establishment of a Designated
Emergency Response Authority (DERA). In 2001, the Avon Town Council designated
the Fire Chief of the Eagle River Fire Protection Department as the DERA for the town.
Town Attorney John Dunn and Public Works Director Bob Reed have reviewed this
agreement.
Discussion: The agreement provides for the sharing of in-kind resources by each
jurisdiction to another at a cost to be incurred by the sharing jurisdiction. The initiating
jurisdiction agrees to seek any reimbursement from state or federal resources that may be
available and to distribute it to other jurisdictions on a pro rata basis.
Recommendation: We recommend entering into an Intergovernmental Agreement with
Eagle County effectively adopting their IEOP.
Alternatives: Develop our own EOP which would probably bear a striking resemblance
to Eagle County's planning document.
Town Manager Comments:
---1 J
INTERGOVERNMENTAL AGREEMENT
BETWEEN
EAGLE COUNTY
AND
POLITICAL SUBDIVISIONS
AND SPECIAL DISTRICTS
WITHIN
EAGLE COUNTY
This Intergovernmental Agreement (IGA) entered into this day of ,
2003, by and between Eagle County, hereinafter referred to as "County" and the
Political Subdivisions and Special Districts listed below, for the operation and
maintenance of an Eagle County Interjurisdictional Emergency Operations Plan and
supporting Annexes, hereinafter referred to as the IEOP.
WHEREAS, IGAs to provide functions or services, including the sharing of costs of
such services or functions, by political subdivisions of the State of Colorado are
specifically
authorized by Section 29-1-203 C.R.S. (1986) and other section of the C.R.S.; and
WHEREAS, it is in the best interests of each of the jurisdictions to have access to
emergency resources to supplement their own during an emergency; and
WHEREAS, to receive the resources cited above, it is cost effective for each of the
jurisdictions to make available during an emergency, its own resources to other
affected
jurisdictions; and
WHEREAS, establishment of a current and maintained IEOP will serve a public
purpose
and will promote the safety, security, and general welfare of the inhabitants of all the
political
subdivisions; and
WHEREAS, emergency incidents may arise in one or more of the political
subdivisions'
jurisdiction(s), resulting in greater demands than the personnel and equipment of that
political
subdivision can handle; and
WHEREAS, the Political Subdivisions recognize that the County will need support
and
assistance in the maintenance and operation of the IEOP.
NOW THEREFORE, IT IS MUTALLY AGREED by and between each of the
signatory Political Subdivisions and entities as follows:
1. This IGA is promulgated under the provisions of, Title 24, Article 32, Part 21,
known and
cited as the "COLORADO DISASTER EMERGENCY ACT OF 1992."
a. The statute shall control in case of conflict between this agreement and the statute.
Each and every term, provision, or condition herein is subject to and shall be
construed in accordance with the provisions of Colorado law, the Charters of the
various jurisdictions, and the ordinances and regulations enacted pursuant thereto;
b. It is understood and agreed by the jurisdictions hereto that if any part, term or
provision of this Agreement is by the courts held to be illegal or in conflict with any
law of the State of Colorado, or of the United States of America, the validity of the
remaining portions or provisions shall not be affected, and the rights and obligations
of the jurisdictions shall be construed and enforced as if the Agreement did not
contain the particular part, term, or provision held to be invalid.
2. The Political Subdivisions do hereby agree to expend their best commitment and
efforts for
maintenance of the IEOP and operational support as stated within IEOP. It is expected
that special districts and other public and private entities, which regularly provide
services and/or resources during incidents, will participate in the IEOP.
3. This IGA shall remain in effect from year to year as needed to ensure maintenance
of the
IEOP.
4. This Agreement provides for the joint exercise by the jurisdictions of the function or
service provided herein, but does not establish a separate legal entity to do so, nor
does it
constitute any jurisdiction as an agent of any other jurisdiction for any purpose
whatsoever.
This Agreement shall provide only for sharing of in-kind resources by the
jurisdictions.
5. For and in consideration of the promises of each participating jurisdiction, each
agrees
with the others that in the event there are emergency incident(s) in the territory served
by one
jurisdiction which are beyond the capabilities of that jurisdiction, each other
jurisdiction, subject to the limitations herein set forth, will assist the other, by causing
and permitting its resources to be used in responding to such emergency incident(s) in
the other jurisdiction. The need for such assistance shall be determined by the
jurisdiction requesting assistance, subject however, to the following limitations:
a. Any of the signatory jurisdictions shall be excused from making their resources
available, or continuing to make their resources available, to any of the other
jurisdictions, in the event of the need of the resources of such jurisdiction within the
territorial area of such
jurisdiction or any other jurisdiction, or their prior use at any other place. Such
decision of
availability shall be made by the jurisdiction requested to give mutual aid, and such
decision
shall be conclusive and in the providing jurisdictions sole discretion.
6. Each jurisdiction shall, at all times, be responsible for its own costs incurred in the
performance of this Agreement, and shall not receive any reimbursement from any
other
jurisdiction, except for third party reimbursement under Paragraph 8, and except as
may be
negotiated and agreed to separately, in writing, by both the requesting and receiving
jurisdictions.
7. Each jurisdiction waives all claims and causes of action against all of the other
jurisdictions for compensation, damage, personal injury or death occurring as a
consequence,
direct or indirect, of the performance of this agreement, to the extent permitted by,
and without
waiving any protections or other provisions of, the Colorado Governmental Immunity
Act.
8. Each jurisdiction agrees that it will reasonably pursue any legal reimbursement
possible,
pursuant to state or federal laws, for incidents occurring within its jurisdiction, on
behalf of all
assisting jurisdictions. Upon payment by the responsible entity, and after subtracting
the
reasonable costs of pursuing and collecting the reimbursement, the receiving
jurisdiction will
distribute the received funds in a fair and equitable manner to assisting jurisdictions,
based upon a pro rata share of their documented expenses for the involved incident.
This is not is lieu of application for compensation provided in C.R.S. 30-10-513.
9. Nothing contained in this Agreement, and no performance under this Agreement
by
personnel of the jurisdictions hereto, shall in any respect alter or modify the status of
officers,
agents, or employees of the respective jurisdictions for purposes of worker's
compensation or
their benefits or entitlements, pension, levels or types of training, internal discipline,
certification, or rank procedures, methods, or categories, or for any purpose, or
condition or
requirement of employment. Worker's Compensation Coverage shall be as structured
in C.R.S.
29-5-109, if the request meets the requirements of C.R.S. 29-5-103 through 107; the
providing
jurisdiction shall remain responsible for processing any worker's compensation claims
filed by
its own resources.
10. It is expressly understood and agreed that enforcement of the terms and conditions
of the
Agreement, and all rights of action relating to such enforcement, shall be strictly
reserved to the named jurisdictions hereto, and nothing contained in this Agreement
shall give or allow any such claim or right of action by any other or third person on
such Agreement. It is the express
intention of the named jurisdictions that any person receiving services or benefits
under this
Agreement, other than the named jurisdictions, shall be deemed to be an incidental
beneficiary
only.
11. Amendments to this Agreement may be made only upon consent of 2/3 of all then
current signatory jurisdictions. Such consent shall become effective upon its receipt in
writing at the depository cited below in Article 14. The only exception is that standing
authorization is given to the Eagle County's emergency management unit to make
minor revisions to this document and supporting Annexes affecting current
information, grammar, terminology, and general updating.
12. Any jurisdiction hereto may terminate its participation in this Agreement, with or
without
cause, upon thirty (30) days prior written notice to the signature depository provided
below.
This Agreement shall survive the termination by any individual signatory and
continue in
force and effective as to all remaining signatories.
13. This IGA shall be executed by each Political Subdivisions and entity on a separate
signature page. Original signature pages will be held by the Eagle County Emergency
Management Unit (EMU) or its successor agency, at its offices at 0885 East Chambers
Avenue, Eagle, Colorado, 81631. Copies of signature pages shall be provided and
certified by EMU to each Political Subdivision and entity, and such copies shall have
the full force and effect as if they were originals. EMU shall provide timely notice to
all Political Subdivisions and entities of all additions to and withdrawals of Political
Subdivisions and/or entities, as well as timely notice of the effective date of any
amendment to this Agreement.
IN WITNESS WHEREOF, the Political Subdivision hereto have executed this
Intergovernmental Agreement as indicated below:
Avon Town Mayor DATE
Basalt Town Mayor DATE
Eagle Town Mayor DATE
Gypsum Town Mayor DATE
Minturn Town Mayor DATE
Red Cliff Town Mayor DATE
Vail Town Mayor DATE
Eagle County Sheriff DATE
Eagle County Director of Emergency Management DATE
Eagle County Board of County Commissioners Chairperson DATE
Basalt and Rural Fire Protection District Board DATE
Eagle River Fire Protection District Board DATE
Greater Eagle Fire Protection District Board DATE
Gypsum Fire Protection District Board DATE
Eagle County Ambulance District Board DATE
Western Eagle County Ambulance District Board DATE
MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL
HELD SEPTEMBER 23, 2003
A regular meeting of the Town of Avon, Colorado was held at 400 Benchmark Road, Avon,
Colorado in the Council Chambers.
Mayor Pro Tern Mac McDevitt called the meeting to order at 5:30 PM. A roll call was taken with
Councilors Michael Brown, Debbie Buckley, Peter Buckley, Brian Sipes, and Ron Wolfe. Mayor
Reynolds was absent. Also present were Town Manager Larry Brooks, Town Attorney John
Dunn, Town Clerk Patty McKenny, Town Engineer Norm Wood, Recreation Director Meryl
Jacobs, Public Works Director Bob Reed, Finance Director Scott Wright, Police Chief Jeff
Layman, Community Development Director Ruth Borne, as well as members of the press and
public.
Citizen Input
Eagle County commissioner Tom Stone was present to address the Council with regard to a
number of items & issues, i.e. success of big box stores, future capital projects for Avon,
countywide recreation discussions, and Referendum A.
Ordinances
The Town Council considered on second reading Ordinance No. 03-10, an Ordinance approving
the Formal PUD Amendment No. 1 to the Village (at Avon) PUD Development Plan and PUD
Guide, Town of Avon, Eagle County, Colorado. Councilor Sipes stepped down at this time
noting a conflict of interest on the project.
Community Development Director Ruth Borne presented the Ordinance and application once
again. She highlighted some of the changes that had been made to the application in recent
weeks and noted that are still staff concerns with regard to the proposal of a gas station as well
as the access to the newly proposed school site. She recommended tabling the ordinances
again until some problems are resolved. Possible action to take was reviewed.
Shane Bohart was present to outline some of the revisions made to the application highlighted
as follows:
? 3.6 acre parcel known as Q West converted back to park designation
? Continue working on Memo of Understanding ("MOU") with School District to outline
school district site location
? no accessory units
? water rights have been identified
? landscaping requirements were revised
? density back to 6 du / acre
? working with forest service on access to school site
He noted the 2 outstanding issues remaining include the gas station proposal & the "material
representation" excerpt in the ordinance. He indicated that they were agreeable to the idea of
"tabling" the action until future date and until some issues have been resolved with school
district.
Tom Braun, representing the Eagle County School District, was asked to summarize the
position of the members of the Eagle School Board. He confirmed that the parties are working
on a Memo of Understanding and that the school district is in fact working on a concept for this
proposal. School District Attorney is currently drafting this "MOU". In summary, the District is
supporting the proposed school site location, with primary access through the forest service
land. But the District has indicated that it is not comfortable with the northern route as the
primary access. The secondary site remains as RMF-1, which was in the original approved
plan.
Mayor Pro Tern McDevitt opened the public hearing and the following public was heard:
? Tamera Underwood, resident
? Amy Phillips, resident
? Walter Dandy, resident
? Kathleen Walsh, resident
? Kristi Ferraro, resident
? Carol Kruger, resident
? Ron Neville, resident & P&Z Commission member
? Bob Trueblood, resident & P&Z Commission member
There were some questions regarding the park at the end of the cul-de-sac in EagleBend.
8ohart provided an update stating that he knows the park was supposed to be completed, it had
not, but plans have been developed. There was also some discussion about whether or not any
referral agencies had been contacted with regard to the proposal. Community Development
Director Ruth Borne noted that contact had been made with a number of agencies throughout
the public process with notices. The public hearing was closed.
Council commented on the project once again. In general, there were concerns about the
following:
? Completing the park as soon as possible at the cul-de-sac location.
? Required approved access to school site & so that there is a confirmed agreed upon
location for the school site.
? Possible include accessory units / explore whether or not the units can qualify as
"affordable" & meet certain criteria for financing as such.
After concluding Council discussion, Councilor D. Buckley moved to table Ordinance No. 03-10
an Ordinance approving the Formal PUD Amendment No. 1 to the Village (at Avon) PUD
Development Plan and PUD Guide, Town of Avon, Eagle County, Colorado. Councilor P.
Buckley seconded the motion. Mayor Pro Tern McDevitt asked for any discussion on the
motion. Town Attorney noted that there was not a limit to how much time could pass while the
Ordinance has been tabled. Some further discussion took place regarding strategy if the School
District does not agree to the proposal.
Councilor Wolfe then asked for Council feedback regarding the proposed commercial
development along the interchange. Comments included the following:
? Preferred to know "specifics" of the commercial to be included / would like to see a
master plan
? Concerned about traffic impacts from the commercial development
? Concerned about future requests for entitlements
Councilor D. Buckley amended the motion to include the next time for consideration on the
October 14, 2003 meeting. The motion passed unanimously.
Resolutions
Town Engineer Norm Wood presented Resolution No. 03-39, Series of 2003, A Resolution
approving Subdivision Sketch Plan for the Village (At Avon) Filing 3, A Resubdivision of Portions
of Sections 7, 8, and 9, Township 5 South, Range 81 West of the 6th Principal Meridian, Town of
Avon, Eagle County, Colorado. He noted that the application for the Subdivision Sketch Plan
Regular Council Meeting Page 2 of 3
September 23, 2003
was submitted in conjunction with the formal PUD Amendment to the Village (at Avon)
Development Plan & PUD Guide to Planning Areas G, M, N, Q, RMF-1, RMF-4, OS-5 and OS-
13. Staff noted that the plan has been reviewed for compliance & compatibility with the
proposed PUD amendment and prior agreements & Avon's subdivision regulations and
everything is in order. Wood commented on the traffic study and the conditions proposed due
to the impacts of the study to keep a Level of Service at Level C instead of Level D. (See memo
included in the packet for the conditions). He also commented on the letter submitted by Eagle
River Water & Sanitation District indicating their ability to provide adequate water to Tract M.
After his presentation, it was requested that the only option that exist at Swift Gulch & Post Blvd.
would be a round-a-bout (& not a traffic signal). Councilor D. Buckley moved to table Resolution
No. 03-39 until the meeting on October 14, 2003. Councilor Wolfe seconded the motion and it
passed unanimously.
Councilor Sipes joined the podium at this time. Town Attorney John Dunn presented Resolution
No. 03-38, Series of 2003, A Resolution expressing Opposition to Referendum A in the
November 4, 2003 Election. Councilor Wolfe moved to approve Resolution No. 03-38;
Councilor D. Buckley seconded the motion. Some discussion occurred between the Town
Council and Eagle County Commissioner Tom Stone regarding language of the proposed
referendum, i.e. mitigation issue. Mayor McDevitt asked for a vote & the motion carried with a 4
to 1 vote (Brown, D. Buckley, Sipes, Wolfe - aye; P. Buckley - nay).
Consent Agenda
Mayor Pro Tern McDevitt asked for a motion on the Consent Agenda items. Councilor D.
Buckley moved to approve the consent agenda. Councilor Sipes seconded the motion and it
passed unanimously.
a. Approval of the September 9, 2003 Regular Council Meeting Minutes
There being no further business to come before the Council, the meeting adjourned at 8:20 PM.
RESPECTFULLY SUBMITTED:
Patty McKenny, Town Clerk
APPROVED:
Michael Brown
Debbie Buckley
Peter Buckley
Mac McDevitt
Buz Reynolds
Brian Sipes
Ron Wolfe
Regular Council Meeting
September 23, 2003
Page 3 of 3
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
From: Bob Reed, Director of Public Works and Transit
Date: October 6, 2003
Re: Service Agreement Renewal - Vail Associates Inc.
Summary:
Attached you will find 3 signed copies of the service agreement between Vail Associates Inc.
and the Town of Avon. This agreement provides routine and preventative maintenance of the
Beaver Creek Resort Company buses by the Town of Avon. Also attached is their vehicle
equipment list and frequency schedule for maintenance (Exhibit A).
Recommendations:
Staff recommends approval of the agreement between Vail Associates Inc. and the Town of
Avon.
Town Manager Comments:
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I:Wdministration\Admin\Council Memos\Council Memo Service Agreement VA.Doc
SERVICE AGREEMENT
-f
This agreement is made and entered into this day of &:?100,r , 2003 by and between Vail Associates Inc., a
Colorado corporation whose address is P.O. Box 7, Vail Colorado, 81658 (hereafter know as "VAI") and the Town of Avon
whose address is P.O. Box 1726, 500 Swift Gulch Road, Avon, Colorado, 81620 (hereafter designated as "Contractor').
RECITAL
In consideration of the obligation of VAI to pay the Contractor as herein provided and in consideration of the other terms
and conditions hereof, the parties agree as follows:
Contractor Services: Contractor will, during the term of this Agreement, provide:
(a) Routine maintenance and preventive maintenance ("Routine Maintenance") of the Beaver Creek
Resort Company buses, which are operated by VAI. Service will be performed on approximately 32
buses or other vehicles, although the number of vehicles and equipment serviced may be increased
or decreased in VAT's sole discretion; provided, the combined number of vehicles and equipment
shall not exceed 75 without the approval of Contractor. Routine Maintenance will be performed at
least every 3,000 miles or 250 hours of use. Routine Maintenance shall consist of those services
outlined in Exhibit A attached hereto.
(b) Repair and replacement work as requested by VAI ("Repair and Replacement"). No payment for any
Repair and Replacement shall be due unless VAI has approved of such charges. Services may be
commenced with verbal approval by VAI of a written estimate submitted by Contractor. Repair and
Replacement includes, without limitation, transmissions repairs, engine repairs, rear end repairs and
any other work or repairs exceeding $2,000.00. VAI acknowledges that subcontractors will perform
certain repair work. Contractor shall be responsible for assuring that all such subcontracted work will
be performed promptly and in accordance with the terms and conditions of this Agreement.
(collectively the "Services")
2. Facilities: Contractor represents that its facilities are in good repair and adequately equipped and
that it has a sufficient staff to perform all work in a timely manner. All Routine Maintenance shall be
completed within 24 hours of any vehicle being brought to Contractor's facility.
3. Compensation: In consideration of Contractor's services during the term of this Agreement, VAI will
pay Contractor the shop rate of $80.00 per hour for Routine Maintenance and Repair and
Replacement. Materials and sublet work shall be charged at cost plus ten percent. Invoice shall be
issued by the 10`n of each month for services performed the previous month. Payment shall be
remitted within ten (10) days of receipt of invoice. Contractor's Fueling Facilities may be used by VAI.
The cost of Unleaded Gasoline and Diesel Fuel will be at the Contractor's cost plus ten cents per
gallon.
4. Terms and Termination: This Agreement will be effective as of October 1, 2003 and will terminate
on September 30, 2004 unless either party fails to substantially perform the duties and obligations in
accordance herewith. In such an event, the other party may terminate this Agreement upon seven
(7) days written notice to that party, unless that party cures the breach within the seven (7) day
remedy period. Either party may terminate this Agreement without cause upon 30 Days written
notice.
5. Relationships and Taxes: The relationship between the parties is that of independent contracting
parties, and nothing herein shall be deemed or construed by the parties hereto or by any third party
as creating a relationship of principal and agent or partnership, or of a joint venture between the
parties. Contractor shall be solely responsible for any tax, withholding or contribution levied by the
Federal Social Security Act. Contractor is not entitled to unemployment compensation or other
employment related benefits, which are otherwise made available by VAI to its employees.
Contractor shall provide VAI an original of its Form W-9 (Request for Taxpayer Identification Number
of Certification).
6. Warranty: Contractor shall perform all Services in a prompt, efficient and workmanlike manner. .
Contractor shall promptly correct any defective work. This warranty shall be in lieu of all other
warranties, express or implied. Contractor's sole liability hereunder, whether in tort or in contract, is
expressly limited to the warranty provided for herein.
7. Assignment: Contractor's duties hereunder requires particular expertise and skills, and may not be
assigned to any third party without the expressed written consent of VAI, and any attempt to do so
shall render this Agreement null and void and no effect as respects the assignee (s) and shall
constitute an event of default by Contractor.
8. Waiver: Failure to insist upon strict compliance with any terms, covenants, and/ or conditions hereof
shall not be deemed a waiver of such term, covenant, or condition, nor shall any waiver or
relinquishment of any right or power hereunder at any time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
9. Benefit: The terms, provisions, and covenants contained in this Agreement shall apply to, inure to
the benefit of and be binding upon the parties hereto and their respective heirs, successors in
interest, and legal representatives except as otherwise herein expressly provided.
10. Situs and Severability: The laws of the State of Colorado shall govern the interpretation, validity,
performance and enforcement of this Agreement. If any provision of this Agreement shall be held to
be invalid or unenforceable, the validity and enforceability of the remaining provisions of this
Agreement shall not be affected thereby.
11. Modification: This Agreement contains the entire agreement between the parties, and no
agreement shall be effective to change, modify, or terminate in whole or in part unless such
agreement is in writing and duly signed by the party against whom enforcement of such change,
modification, or termination is sought.
EXECUTED this S? day of CY-?O` , 2003.
Vail Associates Inc.
A Colorad7Cor r ation
By: L
EXECUTED this day of , 2003.
TOWN OF AVON
By:
EXHIBIT A
WORK FREQUENCY _ _ RATE
"A" PM 3,000 miles or $80.00 hr.
Preventive Maintenance 250 hours Plus parts &
Inspection
sublet
"Annual" every 12months $80.00 hr.
Preventive Maintenance Plus parts
Inspection sublet
NOTE: Included as a part of Exhibit A is the vehicle listing applicable to this agreement as of
September 1, 2003.
AVON BEAVER CREEK EQUIPMENT LIST BY DEPARTMENT Page 1
Program FMG210 DEPARTMENT: 09 - DIAL-A-RIDE Date 09/24/03
Release 5.z Time 08:34
--DATE-- LICENSE- ---DEPR--- --MAINT--- -YTD-- --MILES HRS-- M
EQUIP # YR ---MAKE--- --MODEL--- CLASS ---SERIAL NUMBER---- -ACQRD-- -NUMBER- ---COST--- --VALUE--- ---LTD---- -MILES BEG-FY CURRNT T
100D O1 FORD E450 TERRATRANS PPL 1FDXE45S7YHB82726 10/31/00 TEMP 83000.00 0.00 27880.54 17850 37980 55830 M
lo1D O1 FORD E450 TERRATRANS PPL 1FDXE45S7YHB82727 10/31/00 TEMP 83000.00 0.00 18690.60 13845 45368 59213 M
102D Ol FORD E450 TERRATRANS PPL 1FDXE45SOYHES2728 10/31/00 TEMP 83000.00 0.00 12518.37 16268 33654 49922 M
103D O1 FORD E450 TERRATRANS PPL 1FDXE45S2YHB82729 10/31/00 TEMP 83000.00 0.00 23265.46 14231 42666 56897 M
1041) O1 FORD E450 TERRATRANS PPL 1FDXE45S9YHB82730 10/31/00 TEMP 83000.00 0.00 20312.37 16838 39541 56379 M
105D O1 FORD E450 TERRATRANS PPL 1FDXE45S7YHB82731 10/31/00 TEMP 83000.00 0.00 22143.51 12591 40444 53035 M
106D O1 FORD E450 TERRATRANS PPL 1FDXE45S2YHB82732 10/31/00 TEMP 83000.00 0.00 20932.48 13557 39480 53037 M
107D O1 FORD E450 TERRATRANS PPL 1FDXE45S4YHB82733 10/31/00 TEMP 83000.00 0.00 17459.45 11103 39160 50263 M
108D O1 FORD E450 TERRATRANS PPL 1FDXE45S6YHB82734 10/31/00 TEMP 83000.00 0.00 22907.85 12270 41655 53925 M
109D O1 FORD E450 TERRATRANS PPL 1FDXE45S8YHB82735 10/31/00 TEMP 83000.00 0.00 20734.39 13883 35483 49366 M
110D O1 FORD E450 TERRATRANS PPL IFDXE45SXYHB82736 10/31/00 TEMP 83000.00 0.00 24775.38 38807 44010 82817 M
111D O1 FORD E450 TERRATRANS PPL 1FDXE45S1YHB82737 10/31/00 TEMP 83000.00 0.00 34615.57 33413 37795 71208 M
112D O1 CHEV 1500 SUBURBAN L4U 3GNFK16T71G127988 11/08/00 807-CMZ 40000.00 0.00 8355.89 1103 45436 46539 M
113D O1 CHEV 1500 SUBURBAN L4U 3GNFK16TBIG128664 11/08/00 TEMP 40000.00 0.00 6058.04 3912 37500 41412 M
290D 02 FORD E-450 TERRATRANS PPL 1FDXE45S71HB47190 11/13/01 998-EEP 83000.00 0.00 7004.55 18009 24377 42386 M
291D 02 FORD E-450 TERRATRANS PPL 1FDXE45S9114B47191 11/13/01 997-EEP 83000.00 0.00 8181.41 15752 21487 37239 M
292D 0
I2 FORD E450 TERRA TRAM PPL IFDXE45SOIHB47192 12/10/01 TEMP 100000.00 0.00 9124.57 16580 17586 34166 M
293D J
02 FORD E-450 PPL 1FDXE45S21HB47193 12/01/01 N/A 100000.00 0.00 5473.94 17147 19729 36876 M
294D 02 CHEV 1500 SUBURBAN L4U 1GNFK16Z32J160166 11/20/01 TEMP 40000.00 0.00 3127.84 3360 18970 22330 M
295D 02 FORD E350 VANTERRA PPL 1FDSE35L82HA24397 12/30/01 TEMP 83000.00 0.00 9650.88 20970 26276 47246 M
296D 02 FORD E350 VANTERRA PPL 1FDSE35L82HA24397 12/30/01 105-ENY 83000.00 0.00 14092.50 27798 33642 61440 M
297D 02 FORD E350 VANTERRA PPL 1FDSE35L62HA24396 01/04/02 TEMP 83000.00 0.00 13225.35 22176 27741 49917 M
314D 93 CHEV 5-10 PU L4P IGCCT19ZXP8196195 06/25/03 4346-YN 5000.00 0.00 1408.24 12274 25000 37274 M
356D 03 FORD VANTERRA PPL 1FDSE35L73HA18656 01/01/03 TEMP 83000.00 0.00 4126.68 .23446 4306 27752 M
3571) 03 FORD E350 VANTERRA PPL 1FDSE35L93HA18657 01/09/03 TEMP 83000.00 0.00 3614.91 23054 1628 24682 M
358D 03 FORD E350 VANTERRA PPL 1FDSE35L03HA18658 12/24/02 TEMP 83000.00 0.00 3785.24 21838 1628 23466 M
359D 03 FORD E450 TERRATRANS PPL 1FDXE45S93HA18659 12/03/02 TEMP 83000.00 0.00 9110.57 21675 2173 23848 M
392D 03 FORD E450 TERRATRANS PPL 1FDXE45S32HB44692 12/03/02 TEMP 83000.00 0.00 5874.73 18609 3179 21788 M
889 98 FORD E450 TERRATRANS PPL 1FDXE40S2WHB99096 11/01/98 EMG2865 72000.00 0.00 8719.19 6858 26737 33595 M
989 99 FORD E450 TERRATRANS PPL 1FDXE40SXXHC19225 O1/O1/00 EMH1453 83000.00 0.00 28014.23 26200 45930 72130 M
996 99 CHEV SUB L4U 3GNFK16R3XG173279 10/19/98 EMG1536 33000.00 0.00 16469.70 0 69154 69154 M
* DEPT TOTALS:
ITEMS ?I
COST $2,339,000
DEPRECIATED VALUE $0
MAINTENANCE (LTD) $481,943
MTHLY CHG + INSUR. AMT $0
MILES DRIVEN (YTD) 515417
HOURS DRIVEN (YTD) / ITEMS 0 / 0
OTHER METER USED (YTD) / ITEMS 0 / 0