Loading...
TC Ord. No. 1981-27f ORDINANCE NO. AN ORDINANCE CONCERNING THE LOCAL IMPROVEMENT DISTRICT KNOWN AND IDENTIFIED AS THE "TOWN OF AVON, COLORADO, TOWN CENTER MALL IMPROVEMENT DISTRICT;" DESIGNATED BY THE SHORT TITLE "MALL DISTRICT BOND ORDINANCE;" RATIFYING ACTION HERE- TOFORE TAKEN; DECLARING THE NECESSITY OF THE MALL AND PARK IMPROVEMENTS; PROVIDING FOR THE COLLECTION OF SPECIAL ASSESSMENTS TO BE LEVIED TO DEFRAY THE COST OF THE MALL AND PARK IMPROVE- MENTS; PROVIDING FOR THE ISSUANCE OF SPECIAL ASSESSMENT BONDS; PRESCRIBING DETAILS IN CONNEC- TION WITH SAID ASSESSMENTS, BONDS, AND DISTRICT, INCLUDING THE MANNER OF ADDITIONALLY SECURING AND EFFECTING THE PAYMENT OF SAID BONDS; PROVID- ING THE FORM OF THE BONDS AND COUPONS; PRESCRIB- ING DUTIES OF 'CERTAIN TOWN OFFICIALS IN CONNEC- TION WITH SAID ASSESSMENTS, BONDS AND DISTRICT; AND PRESCRIBING DETAILS IN CONNECTION WITH SUCH MATTERS. WHEREAS, the Town of Avon (the "Town"), in the County of Eagle, and State of Colorado, is a municipal corporation duly orga- nized and existing under Article XX of the Constitution of the State of Colorado; and WHEREAS, the Town's Charter (the "Charter") was duly adopted at a special election held in the Town on June 13, 1978; and WHEREAS, pursuant to the Charter of the Town and to the laws of the State, the Council of the Town (the "Council"), did adopt Ordinance No. 81-24 (the "Enabling Ordinance"), read, passed and approved the 28th day of July, 1981, relating to local improvements and the financing thereof (the "Local Improvements Code"); and WHEREAS, the Council, pursuant to the Charter and the Local Improvements Code, (the "Code"), after taking all required action pursuant to the Charter and Code provisions and after holding a hear- ing pursuant thereto and pursuant to due mailed and published notice, determined to proceed with the proposed Town of Avon, Colorado, Town Center Mall Improvement District and directed Denton, Harper & Marshal Inc. of Denver, Colorado (herein the "Architects" or the "engineers") to prepare and present to the Council a revised and detailed estimate of the total cost, full and detailed plans and specifications for the proposed mall and park improvements, and a map and assessment plat showing the location of the mall and park improvements, and the tracts and parcels of property to be assessed therefor; and WHEREAS, the Council of the Town pursuant to the Charter of the Town and to the Code, created and established by Ordinance No. 81-26 designated in Section 1 thereof by the short title "Mall District Creation Ordinance" (the "Creation Ordinance"), passed, adopted and signed on August 25, 1981, within the corporate limits of the Town a local improvement district known and designated as "Town of Avon, Colorado, Town Center Mall Improvement District" (the "District") , for the purpose of making certain local mall and park improvements (the "Improvements" or the "Project"), and to assess the cost thereof to the tracts and parcels of property specially bene- fited thereby; and WHEREAS, the Council determined on August-;Lf l~981, that the lowest responsible negotiated offer for construction and instal- lation of the mall and park improvements was A"'01~'1,aea; 24A.3 , of and the Council on Augus,tl~981, accepted such negotiated construction bid, and a contract for the acquisition of the mall and park improvements was so executed; and WHEREAS, by Section 8, and Section 9 of said Ordinance No. 81-26, said Council provided in part that the method of levying assessments, the number of installments and the times in which the costs to be assessed will be payable, which were prescribed as follows: "Section 8. The amount to be assessed shall be apportioned in an assessment roll against each tract or parcel of land to be assessed, hereinabove described, and after a notice thereof and a hearing thereupon, assessments shall be levied by ordinance, which shall be a lien until paid in the several amounts assessed against each tract or parcel of land. All assessments made in pursuance of said assessment ordinance shall be due and payable without demand within thirty (30) days after the final publication of the assessment ordinance. All such assessments may, at the election of the owner, be paid in installments with interest. In case of such election to pay in installments, the assessment shall be payable in sixteen (16) substan- tially equal semi-annual installments of principal, with interest in all cases on the unpaid principal payable semi- annually at a rate to be hereafter determined by the Town Council." "Section 9. The Town Council has determined that assessments shall be levied against all of the tracts abut- ting the mall and park improvements as described above, being the property specially benefited by the mall and park improvements to be made within the District, and such assessments shall be apportioned on a frontage, i.e., a front foot basis. This method of assessment will result in each tract being assessed in proportion to the special ben- efits derived by each tract and in an amount not greater than the estimated benefit to such tract. Should any of the -7- above tracts be divided upon a sale of a part thereof or by formal subdivision, or otherwise, (either vertically or horizontally) , prior to the levy of the special assessments and the imposition of the lien therefor, the Council, at its option, may change the method of the calculation of the assessments for such subdivided parcel at the time of the adoption of the assessment ordinance. The Council may pro- vide that the Town Engineer or Architect will determine the amount to be separately assessed against each subdivided tract by determining such relative portion of the whole amount to be levied (based initially on the front foot assessment to the unsubdivided tract) as the area, either vertically or horizontally of such tract, bears to the whole area of all of such unsubdivided tract to be assessed, i•e., the assessments to such tracts subdivided after the date of the adoption of this Ordinance and before the date of the adoption of the Ordinance levying the assessments may, at the Council's option, be apportioned in proportion that the area (or square footage) of an individ- ual tract bears to the total area (or square footage) of such tract prior to the subdivision of such tract. Should any tract be divided upon a sale of a part thereof or by formal subdivision, or otherwise, after the special assess- ments thereon have been levied by the Ordinance levying the assessments, the unpaid special assessments and the lien therefor shall thereupon become divided ratably according to area (or square footage) as provided in Section 40 of the Enabling Ordinance. The current owners of the above- described parcels to be assessed have previously agreed to the initial method of the computation of the assessments on a front foot basis, have recognized that the actual compu- tation of the amount of the assessments may be changed by the Council, and have agreed to the maximum amount of assessments on their respective parcels by the execution of Affidavits of Waiver and Consent to Inclusion in the District now on file with the Town Clerk. The Town Council has determined that either method of assessment hereinabove designated (i.e., frontage, or area) is an equitable basis and that such assessments shall be in proportion to the special benefits derived to such property, sufficient to cover the portion of the total cost of the improvements to be defrayed by special assessments."; and WHEREAS, said assessments shall be payable at the office of the Town Manager of said Town; and -8- WHEREAS, the Code of the Town prescribes the method for effecting collections of said assessments, including any delinquencies which might exist; and WHEREAS, the Council has determined and does hereby deter- mine that it is necessary and for the best interests of said Town and the inhabitants thereof that, pursuant to its Charter and Code it issue and sell its local improvement, special assessment bonds for said Town Center Mall Improvement District for the payment of the costs of said mall and park improvements; and WHEREAS, said Council has determined, and does hereby determine that the payment of the interest on and the principal of said bonds shall be additionally secured to the extent permitted, in part, and in the manner authorized by, the Town's Charter; and WHEREAS, said Council by the adoption of Resolution No. _ J / 3 on August 25, 1981, determined, and does hereby determine, that it is necessary and for the best interests of said Town and the inhabitants thereof that they immediately proceed to issue and sell, at private sale, the Town's negotiable, coupon, special assessment bonds designated as "Town of Avon, Colorado, Town Center Mall Improvement District, Special Assessment Bonds, Series October 1, 1981," (herein the "bonds") in the aggregate principal amount of $910;000 for the purpose of paying, in part, the cost of making the mall and park improvements in said District; and -tr WHEREAS, by said Resolution No. ~J_13 the Council has accepted the negotiated offer of Boettcher & Company, Denver, Colorado and associates (herein "purchaser"), to purchase the special assessment bonds herein authorized for the principal amount thereof, accrued interest to the delivery date and a discount of $ , at the interest rates hereinafter set forth; and WHEREAS, all such bonds are herein authorized to be, and they shall be, issued upon estimates of the Architects retained for said District (the "engineers") and order of the Council, which esti- mates have been, and hereby are, approved by the Council. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. This ordinance shall be known as and may be cited by the short title "Mall District Bond Ordinance." Section 2. All action (not inconsistent with the provisions of this ordinance) heretofore taken by this municipality and the officers thereof, directed toward the creation of the District, the acquisition of the mall and park improvements, the determination of the specially benefited property therein, the sale and issuance of its special assessment bonds, and the levy of assessments for that -9- purpose, be, and the same hereby is, ratified, approved, and confirmed. Section 3. It is hereby redclared that the mall and park improvements will serve a public use and will promote the health, safety, and general welfare of the citizens, inhabitants and property owners in said District, and in said Town. Section 4. The Town of Avon be, and it hereby is, autho- rized, empowered and directed, and it shall be its duty, to levy, receive, collect and enforce the payment of all assessments to be made and levied for said mall and park improvements, and all install- ments thereof, all interest thereon, and all penalties accrued, in the same manner and at the same time or times as prescribed by the Code, Ordinance No. 81-26, and this ordinance, and to pay and dis- burse said payments, the installments thereof, the interest thereon, and penalties thereto, to any person or persons lawfully entitled thereto. Section 5. The Town Manager of the Town of Avon (the "Town Manager" or "Manager") be, and he hereby is, authorized, empowered and directed, and it shall be his duty, to receive and collect at the time and in the manner heretofore specified, all assessments, the installments thereof, the interest thereon, and the penalties accrued, levied to defray a portion of the total cost of the desig- nated mall and park improvements, in said District, and to pay and disburse such payments to the person or persons lawfully entitled to receive the same, in accordance with the laws of the State of Colorado, with the Charter, with the Code, and with all the ordi- nances and resolutions of said Town heretofore or to be hereafter adopted. All moneys received from such assessments shall be placed in a separate fund to be designated "Town of Avon, Colorado, Town Center Mall Improvement District, Special Assessment Bonds, Series October 1, 1981, Bond Fund" (herein the "Bond Fund"), and said moneys shall be used as soon as they are available for the purpose of paying the principal of and interest on the special assessment bonds herein- after authorized, and for no other purpose whatsoever, and as secu- rity for such payment said, fund is hereby exclusively pledged. The Town Manager shall be, and he also hereby is, authorized, empowered and directed, and it shall be his duty, (a) to receive and collect surplus local improvement district moneys, if any, pursuant to Section 15.4 of the Charter, to place all said moneys in the Town's Local Improvement District Special Surplus and Deficiency Fund (herein the "Surplus and Deficiency Fund"), and to disburse therefrom said moneys for the payment of the interest on and the principal of the Town's special or local improvement district bonds, including the bonds hereinafter authorized, to the extent necessary, if necessary; -10- and (b) to pay on the Town's behalf bonds of any of the Town's special or local improvement districts (including the bonds herein authorized), when due and interest thereon from any available moneys and to reimburse the Town by collecting the unpaid assessments due the District, whenever three-fourths of the special assessment bonds issued of such District have been paid and cancelled, and for any reason the remaining assessments are not paid in time to redeem the final bonds for such District and interest due thereon, and there is not sufficient money in the Surplus and Deficiency Fund therefor. The moneys in each of said funds, i.e., the Bond Fund, and the Surplus and Deficiency Fund, shall each constitute a trust fund and shall be deposited in a bank qualified to accept trust funds under the laws governing the acceptance of trust funds. The fees, if any, of the trustee shall be paid from moneys in the respective funds. Section 6. For the purpose of defraying the cost and expense of making said improvements, including all such proper inci- dental expenses (except to the extent other funds are available therefor), there shall be issued in the name of the Town of Avon spe- cial assessment, negotiable, coupon, local improvement bonds desig- nated "Town of Avon, Colorado, Town Center Mall Improvement District, Special Assessment Bonds, Series October 1, 1981," in the aggregate principal amount of $910,000 consisting of 182 bonds in the denom- ination of $5,000 each, numbered consecutively from 1 to 182, both inclusive, bearing date as of the girst day of October, 1981, being payable to bearer in regular numerical order on the first day of November, 1991, and bearing interest from their date until their maturity at the respective rates hereinafter designated, such inter- est being evidenced by one set of coupons payable to bearer, being payable on May 1, 1982, and semi-annually thereafter on the first days of November and May in each year. The bonds shall be numbered and shall bear interest as follows: Bond Numbers (All Inclusive) Amounts Interest Rate (Per Annum) 1 - 22 $110,000 jj,e.c % 23 - 45 115,000 1?.15$ 46 - 67 110,000 i'1.LZ % 68 - 90 115,000 I~ 5 91 - 112 110,000 12.11% 113 - 135 115,000 3,C-',$ 136 - 157 110,000 13, 158 - 182 125,000 both principal and interest being payable in lawful money of the United States of America, without deduction for exchange or collec- tion charges, at the office of the Town Manager, in Avon, Colorado, or at the United Bank of Denver, Denver, Colorad o, at the option of the holder of any bond or coupon pertaining thereto. If, upon -11- • 0 presentation of any bond at maturity, payment is not made as herein provided, interest thereon shall continue at the coupon rate per annum until the principal thereof is paid in full. Section 7. All of said bonds shall be subject to redemption prior to maturity, in regular numerical order, at the option of the Town on any interest payment date prior to maturity, at a price equal to the principal amount thereof with accrued interest to the redemp- tion date. Whenever considered advisable by the Town Manager, he may, and whenever funds may be in his hands to the credit of said Town Center Mall Improvement District, exceeding one year's interest on the unpaid principal,,he shall call in a suitable number of bonds of such District for payment. Notice of prior redemption shall be given by the Town Manager in the name of the Town of Avon by advertisement by publication of such notice at least once not less than fifteen (15) days prior to the date of redemption in some newspaper of gen- eral circulation in the Town of Avon, and a copy of such notice shall be sent by registered mail not less than fifteen (15) days prior to such date to Boettcher & Company (i.e., the original purchaser of said bonds). Such notice shall specify the number or numbers of the bonds to be so redeemed and the date fixed for redemption, and shall further state that on such date there will become and be due and pay- able upon each bond so called at the office of the Town Manager in the Town of Avon, or at the United Bank of Denver, Denver, Colorado, (both designated by title) the principal amount thereof with accrued interest to such date, and that on such redemption date interest on the bonds so called shall cease to accrue. Notice having been given in the-manner hereinbefore provided, the bond or bonds so called shall become due and payable on the date so designated, and upon pre- sentation thereof at the office of the Town Manager or at the United Bank of Denver, together with all coupons maturing subsequent to the redemption date, the Town will pay the bond or bonds so called for redemption. The holder of any bonds may at any time furnish his post office address to the Town Manager and in such case a copy of such advertisement shall be mailed by the Town Manager to the holder of the bonds called, at such address, within three days of said publication. Section 8. The bonds shall be fully negotiable and shall have all the qualities of negotiable paper, subject to the payment provisions stated herein, and the holder or holders thereof shall possess all rights enjoyed by holders of negotiable instruments under the provisions of the Uniform Commercial Code - Investment Securities. Section 9. The bonds shall be executed in the name of the Town and shall be signed by the facsimile signature of the Mayor, -12- attested by the manual signature of the Town Clerk with the facsimile of the seal of the Town affixed thereto, and countersigned by the facsimile signature of the Town Manager. The coupons attached to the bonds shall bear the facsimile signature of the officers signing-the bonds, each of which officers, by the execution of the bonds or sig- nature certificate relating thereto, shall adopt as and for his sig- nature the facsimile thereof appearing on such coupons, and when the bonds are executed, the coupons shall constitute the binding obliga- tions of the Town for such interest. Such coupons and bonds, includ- ing the certificates thereon, bearing the signatures of the officers in office at the time of the signing thereof shall be the valid and binding obligations of-the Town, notwithstanding that before the delivery thereof and payment therefor any or all of the persons whose signatures appear thereon shall have ceased to fill their respective offices. Each of the officers, at the time of the execution of a sig- nature certificate, and in the case of the Town Clerk also at the time of the execution of the bonds, may adopt as and for his own fac- simile signature the facsimile signature of his predecessor in office in the event that such facsimile signature appears upon any of the bonds, coupons or certificates pertaining thereto. Prior to the exe- cution of the required signature certificate, the Mayor, Town Clerk and Town Manager shall cause a certified copy of their signatures to be filed with the Colorado Secretary of State; provided that such filing shall not be necessary where any previous such filings may have legal application to the bonds. Section 10. Except as hereinafter stated, the bonds and the interest thereon shall be payable solely from the Bond Fund, consist- ing only of all the moneys collected (principal, interest, and penal- ties, if any) from the assessments to be levied to pay for the mall and park improvements, provided that any proceeds from the sale of the bonds remaining after the payment of all the costs and expenses of making the mall and park improvements shall be deposited in said Bond Fund and used for bond redemption. Any assessments remaining after the bonds, both principal and interest, are paid in full, shall be deposited in the Surplus and Deficiency Fund, except to the extent the Town reimburses itself pursuant to Section 12 of this ordinance. Immediately upon the collection of any assessments, the moneys there= from shall be deposited in the Bond Fund; and said fund is and will continue to be irrevocably and exclusively pledged for the payment of the principal of the and the interest on the bonds. The Town, as well as redeeming the bonds with any surplus bond proceeds and with assessments collected during the thirty days after the publication of the assessing ordinance following its final passage, shall redeem the bonds semi-annually on each appropriate bond interest payment date from the remaining assessments payable in sixteen substantially equal -13- semi-annual installments of principal, as soon as and to the extent moneys are available therefor in the Bond Fund. Section 11. The bonds herein authorized are and shall con- tinue to be additionally secured and their payment shall be supple- mented by the Surplus and Deficiency Fund, together with bonds of other special or local improvement districts, said fund consisting of moneys remaining to the credit of special or local improvement dis- tricts the bonds of which have been paid in full, both principal and interest; and whenever there is a deficiency in the Bond Fund to meet the payment of outstanding bonds herein-authorized and interest due thereon, as the same become due, the deficiency shall be paid out of the Surplus and Deficiency Fund. Section 12. Whenever three-fourths of the bonds issued of said Town of Avon, Colorado, Town Center Mall Improvement District have been paid and cancelled and for any reason the remaining assess- ments therefor are not paid in time to redeem the final bonds of said District and interest due thereon, and there is not sufficient money therefor in said Surplus and Deficiency Fund, then the Town shall pay the bonds when due and interest due thereon, as provided by Section 15.4(b) of the Charter, and shall reimburse itself by col- lecting the unpaid assessments due the District. Section 13. The bonds issued pursuant to this ordinance shall not be a debt of the Town within the meaning of the Charter provisions concerning debt limitations and elections, and the Town shall not be liable thereon, nor shall it thereby pledge its full faith and credit for their payment, nor shall the bonds be payable out of any funds other than the special assessments (including installments thereof, interest thereon and any penalties), and other funds and moneys pledged to the payment thereof, as herein authorized. Each bond issued under this ordinance shall recite in substance that the bond and the interest thereon are payable solely from the special assessments and other moneys pledged to the payment thereof. The payment of bonds is not secured by an encumbrance, mort- gage, or other pledge of property of the Town, except for such spe- cial assessments and moneys pledged for the payment of bonds. No property of the Town, subject to said exceptions, shall be liable to be forfeited or taken in payment of the bonds. Each bond issued under this ordinance shall recite in substance that it is issued under the authority of the Local Improvements Code, i.e., Ordinance No. 81-24, duly passed and adopted on July 28, 1981. Such recital shall conclu- sively impart full compliance with all of the provisions of the Local Improvements Code, and all bonds issued containing such recital shall be incontestable for any cause whatsoever after their delivery for value. -14- Section 14. The bonds, and the coupons thereto attached, shall be in substantially the following form: -15- 0 C (Form of Bond) STATE OF COLORADO UNITED STATES OF AMERICA COUNTY OF EAGLE TOWN OF AVON, COLORADO TOWN CENTER MALL IMPROVEMENT DISTRICT SPECIAL ASSESSMENT BOND SERIES OCTOBER 1, 1981 No. $5,000 The Town of Avon, in the County of Eagle and State of Colorado (herein the "Town"), a municipal corporation duly organized and existing, for value received hereby promises, out of special funds available for the purpose, as hereinafter set forth, to pay to the bearer hereof the principal sum of FIVE THOUSAND DOLLARS on November 1, 1991, with interest hereon until maturity at the rate of.:, percent ( per annum, evidenced by'one set of coupons attached hereto, all interest payable, commencing may 1, 1982, and semiannually thereafter on November 1 and May 1 in each year, both principal and interest being payable in lawful money of the United States of America, without deduction for exchange or collection charges, at the office of the Town Manager, Avon, Colorado, or at the United Bank of Denver, Denver, Colorado, at the option of the holder of this bond and of any coupon appertaining thereto, upon presenta- tion and surrender of this bond and of the annexed coupons as they severally become due. If, upon presentation at maturity, payment of this bond is not made as herein provided, interest hereon shall con- tinue at the same rate per annum until the principal hereof is paid in full. This bond is one of a series subject to prior redemption in regular numerical order by the Town of Avon, at its option on May 1, 1982 and on any interest payment date thereafter, at a price equal to the principal amount thereof with accrued interest to the date of redemption, upon not less than fifteen days' prior notice by publica- tion in a newspaper of general circulation in the Town of Avon, in the manner and upon the conditions provided in the ordinance autho- rizing the issuance of this bond. This bond is one of a series of two hundred special assess- ment, negotiable, coupon, local improvement bonds numbered consecu- tively from 1 to 182, inclusive, issued by the Town of Avon, all of which are of like denomination, date, and designation, and which are -16- in the aggregate principal amount of $910,000. Said bond series is issued in payment for public mall and park improvements made and to be made in the Town of Avon, Colorado, Town Center Mall Improvement District (herein "District"), pursuant to and in accordance with the Charter of the Town, with the Local Improvement Code, and with ordinance No. 81-26, passed and adopted on August 25, 1981, creating said District, and all laws and proceedings thereunto enabling. Pursuant to Ordinance No. authorizing this issue of bonds, passed and adopted on September 8, 1981, reference to which is made for further details, the principal of and the interest on the bonds of the series of which this is one, except as hereinafter stated, shall be payable solely from a special fund designated "Town of Avon, Colorado, Town Center Mall Improvement District, Special Assessement Bonds, Series October 1, 1981, Bond Fund," consisting only of all the moneys collected by said Town from the special assessments (principal, interest, and penalties, if any) to be levied upon the completion of said public mall and park improvements against all the assessable lots, tracts, and parcels of land in said District; provided that any proceeds from the sale of the bonds remaining after the payment of all the costs and expenses of making said public mall and park improvements shall be deposited in said Bond Fund and shall be used for bond redemption. Said Bond Fund is irrevocably and exclusively pledged for the full and prompt payment of all of said bonds as soon as and to the extent moneys therein are available therefor. The bonds, together with bonds of other special or local improvement districts in the Town, shall be additionally secured and their payment shall be supplemented by moneys in the Town's Local Improvement District Special Surplus and Deficiency Fund. Whenever there is a deficiancy in said Bond Fund to meet the payment of outstanding bonds, principal and interest, as the same become due, the deficiency shall be paid out of said Suplus and Deficiency fund. Whenever three-fourths of the bonds of the series of which this is one have been paid and cancelled and for any reason the remaining assessments therefor are not paid in time to redeem the final bonds of, said District and interest due thereon, and there is not sufficient money therefor in said Surplus and Deficiency Fund, then the Town shall pay such remaining bonds when due, and interest due thereon, and reimburse itself by collecting the unpaid assess- ments due the District. All assessments shall be a lien in the several amounts assessed against each tract or parcel of land assessed from the effective date of the assessing ordinance. Each such lien upon each tract assessed shall be subordinate and junior to any lien thereon for any general (ad valorem) taxes, whether prior in time or not; shall be prior and superior to any assessment lien thereon -17- subsequently levied by the Town or by any public body; shall be subordinate and junior to any assessment lien thereon theretofore levied by the Town or by any public body; and shall be prior and superior to all other liens, claims, mortgages, other encumbrances, and titles; and all purchasers, mortgagees, or encumbrancers of any such tract shall hold the same subject to such lien so created, whether prior in time or not. Should any tract be divided, upon sale of a part thereof or by formal subdivision, or otherwise, after a special assessment thereon has been levied and made payable in installments and before the collection of all the installments, the unpaid special assessment and lien therefor shall thereupon become divided.ratably according to area. It is hereby certified, recited and declared that the con- tract prices of said public mall and park improvements do not exceed the revised, and detailed estimate of the cost of said improvements; that said bonds are issued by the Town upon estimates of the consult- ing architect ( i•e., the engineer) retained for said District and upon order of the Council; and that the principal am ount of said bonds, does not exceed the amount authori zed by law t o be issued. It is hereby also certified, recited, and declared that the proceedings taken to date, with reference to issuing the bonds, to making such improvements, and to levying the assessments to pay therefor, have been regularly had and taken in compliance with law; that all prerequisites to issuing the bonds have been performed; and that all acts, conditions and things essential to the validity of this bond exist, have happened, and have been done in due time, form and manner as required by law. The bonds are not a debt of the Town. It is neither liable thereon, nor has it pledged its full faith and"credit for their pay- ment, nor are the bonds payable out of any funds other than special assessments and other moneys pledged to the payment thereof as herein stated. The payment of the bonds is not secured by an encumbrance, mortgage, or other pledge of property of the Town except for such special assessments and other moneys pledged for the payment of the bonds. The bonds of the series of which this bond is a part, includ- ing this bond, have been issued under the authority of the Local Improvements Code of the Town of Avon (i.e., Ordinance No. 81-24, duly passed and adopted on July 28, 1981). This, recital shall conclu- sively impart full compliance with all of the provisions of the Local Improvements Code and all bonds issued containing such recital, including this bond, shall be incontestable for any cause whatsoever after delivery for value. This bond is subject to the condition, and every holder hereof by accepting the same agrees with the obligor and every -18- subsequent holder hereof, that (a) the delivery of this bond to any transferee shall vest title in this bond and in the interest coupons attached hereto-in such transferee to the same extent for all pur- poses as would the delivery under like circumstances of any negotia- ble instrument payable to bearer; (b) the obligor and any agent of the obligor may treat the bearer of this bond as the absolute owner hereof for all purposes, and shall not be affected by any notice to the contrary; (c) the principal of and the interest on this bond shall be paid, and this bond and each of the coupons appertaining thereto are transferable, free from and without regard to any equi- ties between the obligor and the original or any intermediate holder hereof,. or any set-offs or cross-claims; and (d) the surrender to the obligor- or any agent of the obligor of this bond and each of the cou- pons shall be a good discharge to the obligor for the same. IN WITNESS WHEREOF, the Town of Avon, Colorado, has caused this bond to be signed and executed in the name of and on behalf of the Town, to be signed by the facsimile signature of its Mayor, attested and manually signed by, its Town Clerk, to bear the facsimile of the seal of the Town and to be countersigned by the facsimile sig- nature-of the Town Manager, and the annexed coupons to bear and to be attested by the facsimile signature of the said officers, and this bond to be dated as of the first day of October, 1981. Facsimile Signature Mayor Town of Avon (FACSIMILE SEAL) Attest: Manual Signature Town Clerk Town of Avon Countersigned: Facsimile_Sianature Town Manager Town of Avon -19- (COUPON FORM) Coupon No. S On the first day of November/May, 19_, the Town of Avon, in the County of Eagle and State of Colorado (unless prior to the maturity of this coupon, the bond to which this coupon is attached has been duly called for redemption), will pay to the bearer hereof upon the surrender of this coupon the amount herein stated, in lawful money of the United States of America, exclusively out of special funds and sources designated for the Town of Avon, Colorado, Town Center Mall Improvement District, Special Assessment Bonds, Series October 1, 1981, without deduction for exchange or collection charges, at the office of the Town Manager, in Avon, Colorado, or at the United Bank of Denver, Denver, Colorado, at the option of the holder hereof, being interest then due on the bond of such series bearing Bond No. TOWN OF AVON By (Facsimile Signature) Mayor (Facsimile Signature) Town Clerk (Facsimile-.Signature) Town Manager -20- Section 15. When the bonds have been duly executed and reg- istered, the Town Manager shall deliver them to the lawful purchaser thereof on receipt of the purchase price. The bond proceeds shall be accounted for by deposit into a special fund hereby created and designated as the "Town Center Mall Improvement District Construction Fund" (the "Construction Fund") and shall be applied solely to defray, in part, the cost of the mall and park improvements. In addition, on or before the delivery of the bonds to the purchaser the Town shall deposit to the Construction Fund $226,000 of moneys otherwise available therefor. Any gain from any investment and any reinvestment of any proceeds of the bonds and other moneys in the Construction Fund shall be used for'the cost of the mall and park improvements but after such costs and expenses are paid, any such gain shall be deposited promptly into the Bond Fund. In addition, $ of the proceeds of the bonds shall be de- posited into the Bond Fund as capitalized interest to defray, in part, the respective payments of the interest on the bonds until the interest on the assessments becomes available. The funds realized from the sale of the bonds shall be applied solely to defray the costs and expenses of making the mall and park improve- ments, the cost of which is to be ultimately defrayed by special assessments, but after such costs and expenses are paid, any funds remaining from the sale of the bonds shall be deposited in the Bond Fund and used for the purpose of redeeming the bonds. The Purchaser, however, shall in no manner be responsible for the application by the Town, or any of its officers, of any of the funds derived from the sale thereof. Section 16. The Town hereby covenants for the benefit of each holder of the bonds that the Town will make no use of the pro- ceeds of the bonds which will cause the bonds to be "arbitrage bonds" as defined in Section 103(c) of the Internal Revenue Code of 1954, as amended. This convenant is for the benefit of the purchaser and the holders of such bonds from time to time. Section 17. So long as any of the bonds remain outstanding, _ the Town will keep or cause to be kept true and accurate books of records and accounts showing full and true entires covering the col- lection and disposition of the special assessments as well as any delinquencies in the collection thereof, covering deposits and dis- bursements in each of the special accounts herein designated, cover- ing the redemption of the bonds, both principal and interest, and covering disbursements to defray the cost of the improvements, including, without limitation, incidental expenses; and the Town will permit an inspection and examination of all books and accounts at all reasonable times by a representative of the original purchaser of the bonds. In addition, said Town at least once a year will cause at its regular annual audit, an audit to be made relating to said books and accounts by an accountant to be employed by the Town at its own -21- expense, and a copy of said audit immediately after its completion will be furnished by the Town, without charge, to said original pur- chaser of the bonds. Section 18. The Town hereby covenants for the benefit of each holder of the bonds that except for the cost to be paid by other than special assessments, the total cost of the mall and park improvements in the District shall be apportioned, levied and assessed against such land in the District by ordinance to be hereaf- ter adopted upon the completion of the work therein. Should any tract be divided, upon sale of a part thereof or by formal subdivision, or otherwise, after a special assessment thereon has been levied and made payable in installments and before the collection of all the installments, the unpaid special assessment and lien therefor shall thereupon become divided ratably according to area. Any holder of bonds or trustee therefor shall have the right and power for the equal benefit and protection of all holders of bonds similarly situated: (1) By mandamus or by other suit, action, or proceeding at law or in equity to enforce his rights against the Town and against the Council and any of its officers, agents, and employees and to require and to compel the Town or the Council or any other officers, agents, or employees to perform and to carry out its and their duties, obligations, or other commitments under this ordinance and under its and their covenants and agree- ments with the bondholders; (2) By action or by suit in equity to require the Town and the Council to account as if they were the trustees of an express trust; (3) By action or by suit in equity to have appointed a receiver, which receiver may take possession of any accounts and may collct, receive, and apply all reve- nues or other moneys pledged for the payment of the bonds in the same manner as the Town itself might do; (4) By action or by suit in equity to enjoin any acts or things which might be unlawful or might be in viola- tion of the rights of the bondholders; and (5) To bring suit upon the bonds. No right or remedy conferred by this ordinance upon any holder of bonds or any trustee therefor is intended to be exclusive -22- of any other right or remedy, but each such right or remedy is cumulative and is in addition to every other right or remedy and may be exercised without exhausting and without regard to any other remedy conferred by this ordinance or by any other law. The failure of any bondholder so to-proceed as herein provided shall not relieve the Town, the Council, or any of its officers, agents, and employees of any liability for failure to perform or to carry out any duty, obligation, or other commitment. Section 19. The Town, with the proceeds derived from the sale of the bonds, (and the other funds deposited into the Construction Fund by the Town) shall proceed to complete the public mall and park improvements without delay and with due diligence, as provided above in this ordinance. A contract for the remaining improvements shall be let as soon as practicable after the delivery of the bonds, except to the extent theretofore let. Section 20. The officers of the Town be, and they hereby are, authorized and directed to take all action necessary or appro- priate to effectuate the provisions of this ordinance, including, without limitation: A. The printing of the bonds, including, without limi- tation, the printing on each bond of a certified true copy of bond counsel's approving opinion; B. The execution of such certificates as may be rea- sonably required by the purchaser, relating, inter alia, to the signing of the bonds, the tenure and identity of the officials of the Council and the Town, the amounts certified on the pre- liminary assessment roll, the accuracy of property descriptions, the delivery of the bonds, the assessed valuation of the taxable property in and the indebtedness of the Town, the receipt of the bond purchase price, the exemption of interest on the bonds from federal income taxation, and if it is in accordance with fact, the absence of litigation, pending or threatened, affecting the validity thereof; and C. The sale and issuance of the bonds pursuant to the provisions of this ordinance and to any instrument supplemental thereto. Section 21. This ordinance may be amended or supplemented by an ordinance or ordinances adopted by the Town Council in accor- dance 'with the Charter and Code of the Town, as amended, and without the receipt by the Town of,any additional consideration, with the written consent of the holders of seventy-five percent (75%) of the bonds authorized by this ordinance and outstanding at the time of the -23- adoption of such amendatory or supplemental ordinance, provided, however, that no such ordinance shall have the effect of permitting: (a) An extension of the maturity of any bond authorized by this ordinance; or (b) A reduction in the principal amount of any bond or the rate of interest thereon without the written consent of the holder of said bond; or (c) The creation of a lien upon or a pledge of property, revenues or funds, ranking prior to the liens or pledges created by this ordinance; or (d) A reduction of the principal amount of bonds required for consent of such amendatory or sup- plemental ordinance. Section 22. After the Series October 1, 1981 bonds have been issued this ordinance shall constitute a contract between the Town and the holder or holders of the Series October 1, 1981 bonds, and shall be and remain irrepealable and unalterable (except as pro- vided in Section 21 hereof) until the Series October 1, 1981 bonds and the interest accruing thereon shall have been fully paid, satis- fied and discharged. Section 23. All orders, bylaws, resolutions, ordinances, or parts thereof, in conflict with this ordinance are hereby repealed. This repealer shall not be construed to revive any order, bylaw, res- olution, or ordinance, or part thereof, heretofore repealed. Section 24. If any section, paragraph, clause, or other provision of this Ordinance is for any reason held to be invalid or unenforceable, the invalidity or unenforceabil.ity of such section, paragraph, clause, or other provision shall not affect the validity of the remaining provisions of this Ordinance. Section 25. Pursuant to Section 15.5 of the Charter, no action or proceeding, at law or in equity, to review any acts or pro- ceedings, or to question the validity of, or enjoin the performance of the issue or collection of any bonds, or the levy or collection of any assessments authorized by the Local Improvements Code, or for any other relief against any acts or proceedings of the Town done or had under the Local Improvements Code, shall be maintained against the Town, unless commenced within thirty (30) days after the performance of the act complained of, or the effective date of this ordinance or else be thereafter perpetually barred. -24- • • Section 26. This Ordinance shall be in full force and effect seven (7) days after its publication by posting upon its final passage. INTRODUCED, PASSED ON FIRST READING, AND ORDERED PUBLISHED THIS 25TH DAY OF AUGUST, 1981. (SEAL) Attest: Town C rk Town of Avon, Colora o Mayor Town of Avon, Colorado ADOPTED AND APPROVED THIS`tt:b day of September, 1981. Mayor Town f Avon, Colorado (SEAL) t: T~~ Clerk Town of on, Colorado -25- k - STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE'TOWN COUNCIL-OF THE, TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 8TH DAY OF SEPTEMBER, 1981 AT THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO, 81620 FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO.#81-27, 1981: AN ORDINANCE CONCERNING THE LOCAL IMPROVEMENT DISTRICT KNOWN AND IDENTIFIED AS THE "TOWN OF AVON, COLORADO, TOWN CENTER MALL IMPROVEMENT DISTRICT;" DESIGNATED BY THE SHORT TITLE "MALL DISTRICT BOND ORDDNANCE;" RATIFYING ACTION HERETOFORE TAKEN; DECLARING THE NECESSITY OF THE MALL AND PARK IMPROVEMENTS; PROVIDING FOR THE COLLECTION OF SPECIAL ASSESSMENTS TO BE LEVIED TO DEFRAY THE COST OF THE MALL AND PARK'EMPROVEMENTS; PROVIDING FOR THE ISSUANCE OF SPECIAL ASSESSMENT BONDS; PRESCRIBING DETAILS IN CONNECTION WITH SAID ASSESSMENTS, BONDS, AND DISTRICT, INCLUDING THE MANNER OF ADDITIONALLY SECURING AND EFFECTING THE PAYMENT OF SAID BONDS; PRESCRIBING THE FORM OF THE BONDS AND COUPONS; PRESCRIBING DUTIES OF CERTAIN TOWN OFFICIALS IN CONNECTION WITH SAID ASSESSMENTS, BONDS AND DISTRICT; AND PRESCRIBING DETAILS IN CONNECTION WITH SUCH MATTERS. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. This notice given and posted by order of the Town Council of the Town of Avon, Colorado. Dated this 25th day of August, 1981 POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON.ON AUGUST 25, 1981: THE NORTHEAST SIDE OF THE BENCHMARK SHOPPING CENTER, AVON POST OFFICE, THE MAIN ENTRANCE OF CITY MARKET, THE PESTER GAS STATION; AND THE MAIN LOBBY OF THE MUNICIPAL BUILDING STATE OF COLORADO ) COUNTY, OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AT 7:30 P.M. ON THE 8TH DAY OF SEPTEMBER, 1981 AT THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO, 81620 FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE N0.#81-27, 1981: AN ORDINANCE CONCERNING THE'LOCAL IMPROVEMENT DISTRICT KNOWN AND IDENTIFIED AS THE "TOWN OF AVON, COLORADO, TOWN CENTER MALL IMPROVEMENT DISTRICT;" DESIGNATED BY THE-SHORT TITLE "MALL DISTRICT BOND ORDDNANCE;" RATIFYING ACTION HERETOFORE TAKEN; DECLARING THE NECESSITY OF THE MALL AND PARK IMPROVEMENTS; PROVIDING FOR THE COLLECTION OF SPECIAL ASSESSMENTS TO BE LEVIED TO DEFRAY THE COST OF THE MALL AND PARK EMPROVEMENTS; PROVIDING FOR THE ISSUANCE OF SPECIAL ASSESSMENT BONDS; PRESCRIBING DETAILS IN CONNECTION WITH SAID ASSESSMENTS, BONDS, AND DISTRICT, INCLUDING THE MANNER OF ADDITIONALLY SECURING AND EFFECTING THE PAYMENT OF SAID BONDS; PRESCRIBING THE FORM OF THE BONDS AND COUPONS; PRESCRIBING DUTIES OF CERTAIN TOWN OFFICIALS IN CONNECTION WITH SAID ASSESSMENTS, BONDS AND DISTRICT; AND PRESCRIBING DETAILS IN CONNECTION WITH SUCH MATTERS. A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk and may be inspected during regular business hours. This notice given and posted by order of the Town Council of the Town of Avon, Colorado. Dated this 25th day of August, 1981 TOWN OF AVON Town Clerk \ POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 25, 1981: THE NORTHEAST SIDE OF THE BENCHMARK SHOPPING CENTER, AVON POST OFFICE, THE MAIN ENTRANCE OF CITY MARKET, THE PESTER GAS STATION; AND THE MAIN LOBBY OF THE MUNICIPAL BUILDING