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TC Ord. No. 1990-05ORDINANCE NO. 90-5 AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF THE TOWN OF AVON, COLORADO, MULTIFAMILY HOUSING REVENUE BONDS (EAGLEBEND PROJECT) SERIES 1990 IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,000,000 TO FINANCE THE CONSTRUCTION OF A MULTIFAMILY RENTAL HOUSING PROJECT TO PROVIDE MORE ADEQUATE RESIDENTIAL HOUSING FACILITIES FOR LOW- AND MIDDLE-INCOME FAMILIES AND PERSONS; RATIFYING CERTAIN ACTION HERETOFORE TAKEN; AUTHORIZING THE EXECUTION AND DELIVERY BY THE TOWN OF A FINANCING AGREEMENT, INDENTURE OF TRUST, REGULATORY AGREEMENT, NET OPERATING LOSS AGREEMENT, CLOSING DOCUMENTS AND SUCH BONDS IN CONNECTION THEREWITH; APPROVING THE FORMS OF A DEED OF TRUST AND COMPLETION GUARANTY; ACKNOWLEDGING THE USE OF A PRIVATE PLACEMENT MEMORANDUM, MAKING CERTAIN DETERMINATIONS AS TO THE SUFFICIENCY OF REVENUES AND AS TO OTHER MATTERS RELATING TO SUCH BONDS; REPEALING ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH. WHEREAS, the Town of Avon, Colorado (the "Town") is a legally and regularly created, established, organized and existing municipal corporation and political subdivision under the provisions of Article XX of the Constitution of the State of Colorado and the Charter of the Town; and -3- WHEREAS, the Town is authorized by the County and Municipality Development Revenue Bond Act, constituting Article 3, Title 29, Colorado Revised Statutes (the "Act"), to finance one or more projects, including any land, building, or other improvement, and all real and personal properties, whether or not in existence, which shall be suitable for residential facilities for low- and middle-income families or persons and intended for use as the sole place of residence by the owners or intended occupants to the end that more adequate residential housing facilities for low- and middle-income families and persons may be provided, which promote the public health, welfare, safety, convenience and prosperity; and WHEREAS, the Act authorizes the Town (i) to issue its revenue bonds for the purpose of defraying the cost of financing any project and all incidental expenses incurred in connection with the issuance of such bonds, (ii) to enter into financing agreements with others for the purpose of providing revenues to pay the bonds authorized to be issued under the Act and upon such terms and conditions as the Town Council may deem advisable, and (iii) to secure the payment of the principal of, premium, if any, and interest on such bonds as provided in the Act; and WHEREAS, the Town has determined it is advisable and in its best interests to issue, sell and deliver its Town of Avon, Colorado, Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990, to in the aggregate principal amount of $5,000,000 (the 'Bonds"), to obtain moneys to provide financing to Eaglebend Partnership I, Ltd., a Colorado limited partnership (the "Owner"), for the acquisition, construction and installation of a multifamily rental housing project (the "Project") which is to be located within the Town, which is to be occupied by persons of low- and middle- income, as defined herein, and occupied partially by individuals of low or moderate income within the meaning of and for the period required by Section 142(d) of the Internal Revenue Code of 1986, as amended (the "Code"), all for the public purpose of providing more adequate residential housing facilities for low- and middle-income families and persons; and -4- i WHEREAS, in order to provide such financing, the Town will make a loan from the proceeds of the Bonds to the Owner pursuant to a Financing Agreement dated as of July 1, 1990 (the "Financing Agreement"), between the Town and the Owner, and the Owner will acquire, operate and maintain the Project in accordance with the requirements of the Act and Section 142(d) of the Code; and WHEREAS, the Bonds will be secured in part by, among other things, a Net Operating Loss Agreement dated as of July 1, 1990 (the "Net Operating Lass Agreement") among the Town, Vail Associates, Inc. ("VA") and The Colorado National Bank of Denver, as trustee (the "Trustee") and construction of the Project will be guaranteed by a Completion Guaranty dated as of July 1, 1990 (the "Completion Guaranty") executed by Eaglebend Partnership, a Colorado general partnership; and WHEREAS, there have been presented to the Town Council (i) the proposed form of Financing Agreement, including as Exhibit C thereto the proposed form of Note (the "Note") of the Owner to the Town, (ii) the proposed form of Indenture of Trust dated as of July 1, 1990 (the "Indenture") between the Town and the Trustee, (iii) the proposed form of Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing dated as of July 1, 1990 (the "Deed of Trust") from the Owner to the Trustee, (iv) the proposed form of Regulatory Agreement dated as of July 1, 1990 (the "Regulatory Agreement") among the Town, the Owner and the Trustee, (v) the proposed form of the Net Operating Loss Agreement and (vi) the proposed form of Completion Guaranty. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. All action (not inconsistent with the provisions of this ordinance) heretofore taken by the Town Council and the officers of the Town directed toward the -5- financing of the Project and the issuance and sale of the Bonds therefor is hereby ratified, approved and confirmed. Section 2. The Town shall finance the Project by loaning the proceeds of the Bonds to the Owner in accordance with the provisions of the Financing Agreement, the Indenture and the Regulatory Agreement. Section 3. To defray the cost of financing the Project, there is hereby authorized and created an issue of revenue bonds designated 'Town of Avon, Colorado, Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990" in the aggregate principal amount of $5,000,000, issuable as fully registered bonds in the denomination of $100,000 or any integral multiple thereof. The Bonds shall be dated as of July 1, 1990, shall mature on the dates and in the amounts stated in the Indenture and shall bear interest at such rates as are set forth in the Indenture, provided no Bond shall bear interest at an interest rate exceeding 13% per annum. Any Bonds delivered upon the initial issuance and delivery thereof or at any time thereafter shall bear interest payable on each Interest Payment Date (as defined in the Indenture) from the Interest Payment Date next preceding the date thereof to which interest has been paid, except as otherwise provided in the Indenture. The Bonds shall be payable, shall be subject to redemption prior to maturity and shall be in substantially the form as provided in the Indenture. The Bonds shall be sold at a private sale at a purchase price equal to par plus accrued interest. The maximum net effective interest rate on the Bonds, taking into account the fees of United Bank of Denver, N.A., as placement agent (the "Placement Agent"), is % per annum, which rate is hereby determined to be the maximum net effective interest rate on the Bonds. Section 4. Pursuant to Section 29-3-103(10)(d) of the Act, the Town Council hereby finds and determines that for purposes of multifamily rental housing projects such as the Project, "low- and middle-income persons and families," means and includes any -6- person whose Adjusted Income (as defined in the Financing Agreement), together with the Adjusted Income of all persons who intend to reside with such person in one dwelling unit, did not, for the taxable year immediately preceding their initial occupancy of such dwelling unit, exceed an amount equal to % of the Median Gross Income for the Area (as defined in the Financing Agreement), or such greater percentage of Median Gross Income for the Area as may be established from time to time by the Town Council, in accordance with the Act, as the maximum income for "low- and middle-income persons and families" within the meaning of the Act, and that such persons and families lack the financial ability to pay rentals sufficient to induce private enterprise in the Town to build a sufficient supply of adequate, safe and sanitary dwellings without the special assistance afforded by the Act. Section 5. The following determinations and findings are hereby made in accordance with Sections 29-3-113, 29-3-114 and 29-3-120 of the Act: (a) The maximum amount necessary in each year to pay the principal of and the interest on the Bonds is as follows: -7- 0 Annual Period To and Including July 1 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Maximum Interest Principal to be for such Retired in Such Period Period E Maximum Annual Debt Service Requirement (b) The Town Council has deemed it advisable to establish for contingent use in connection with the retirement of the Bonds, among other purposes, the fund created and established pursuant to the Indenture designated as the Reserve Fund. Moneys on deposit in such fund shall be used to provide a reserve for the payment of the principal of and interest on the Bonds and a reserve for certain other payments in connection with the Bonds, as provided in the Indenture. There shall be deposited into the Reserve Fund from -8- 0 n the proceeds of the Bonds an amount equal to $ Except for such deposit of the proceeds of the Bonds into the Reserve Fund, it is not necessary for any person to pay any amount into such fund in any year for the purpose of providing a reserve for the payment of the principal of and interest on the Bonds or for other payments in connection with the Bonds. (c) The terms under which the Project is to be financed provide that the Owner shall maintain the Project and carry all proper insurance with respect thereto. (d) The revenues payable under the Financing Agreement and the Note are sufficient to pay, in addition to all other requirements of the Financing Agreement, the Note and this ordinance, all sums referred to in paragraphs (a) and (c) of this Section. (e) The revenues payable under the Financing Agreement and the Note are sufficient to pay, in addition to all other requirements of the Financing Agreement, the Note and this ordinance, all taxes payable pursuant to Section 29-3-120 of the Act. Section 6. The forms, terms and provisions of the Financing Agreement, the Note, the Indenture, the Deed of Trust, the Regulatory Agreement, the Net Operating Loss Agreement and the Completion Guaranty are hereby approved and the Town shall enter into the Financing Agreement, the Indenture, the Regulatory Agreement and the Net Operating Loss Agreement in the forms of such documents presented to the Town Council, with such changes therein, if any, as are not inconsistent herewith as determined by the Mayor, upon the advice of the Town Attorney; and the Mayor is hereby authorized and directed to execute and deliver the Financing Agreement, the Indenture, the Regulatory Agreement and the Net Operating Loss Agreement and the Town Clerk is hereby authorized and directed to affix the seal of the Town to and to attest such documents. Section 7. The form, terms and provisions of the Bonds are hereby approved and the Town shall issue the Bonds in the form set forth in the Indenture with -9- • • such changes therein as are not inconsistent herewith as determined by the Mayor, upon the advice of the Town Attorney; and the Mayor is hereby authorized and directed to execute and deliver the Bonds and the Town Clerk is hereby authorized and directed to affix the seal of the Town to the Bonds and to attest the Bonds. The signatures of the Mayor and the Town Clerk on the Bonds and the seal of the Town on the Bonds shall be affixed manually or by facsimile. Section 8. The Town hereby acknowledges the use of the Preliminary Private Placement Memorandum by the Placement Agent in connection with the offering of the Bonds (the "Preliminary Private Placement Memorandum") and hereby approves the use by the Private Placement Agent of a final Private Placement Memorandum in connection with the offering and sale of the Bonds (the 'Private Placement Memorandum"). The Town makes no representation or warranty as to, and has no responsibility for, the accuracy or completeness of the information contained in the Preliminary Private Placement Memorandum or the final Private Placement Memorandum. Section 9. The Mayor is hereby authorized and directed to execute and deliver to the Trustee the written order of the Town for the authentication and delivery of the Bonds by the Trustee, in accordance with Section 2.07 of the Indenture. Section 10. The Colorado National Bank of Denver, Denver, Colorado, is hereby appointed as Trustee, paying agent and bond registrar. Section 11. The officers of the Town shall take all action in conformity with the Act necessary or reasonably required to effectuate the issuance and delivery of the Bonds and necessary or desirable in conformity with the Act to finance the Project and to carry out, give effect to and consummate the transactions contemplated by this ordinance, the Financing Agreement, the Note, the Indenture, the Regulatory Agreement, the Net Operating Loss Agreement, the Completion Guaranty, the Deed of Trust and the Preliminary Private Placement Memorandum, including without limitation, the filing of any statements or reports -10- with the Internal Revenue Service or with the Secretary of the Treasury or his delegate necessary to maintain the exemption of interest on the Bonds from federal income taxation and the execution and delivery of any closing documents to be delivered in connection with the issuance and delivery of the Bonds. Section 12. For the purposes of Section 147(f) of the Internal Revenue Code of 1986, as amended, the Council hereby approves the Bonds and the Project. Section 13. The cost of financing the Project will be paid out of the proceeds of the Bonds and funds of the Owner and the Bonds will not be the general obligations of the Town. The Bonds, including interest thereon, shall never constitute the debt or indebtedness of the Town within the meaning of the Constitution or statutes of the State of Colorado or of the home rule charter of the Town nor shall anything contained in this ordinance or in the Bonds, the Financing Agreement, the Note, the Indenture, the Regulatory Agreement, the Net Operating Loss Agreement, the Completion Guaranty, the Deed of Trust, the Preliminary or final Private Placement Memorandum or any other instrument give rise to a pecuniary liability or a charge upon the general credit or taxing powers of the Town, nor shall the breach of any agreement contained in this ordinance or in the Bonds, the Financing Agreement, the Note, the Indenture, the Regulatory Agreement, the Net Operating Loss Agreement, the Completion Guaranty, the Deed of Trust, the Preliminary or final Private Placement Memorandum or any other instrument impose any pecuniary liability upon the Town or any charge upon its general credit or against its taxing powers, the Town having no power to pay out of its general fund, or otherwise contribute any part of the costs of financing the Project, nor power to operate the Project as a business or in any manner, nor shall the Town condemn any land or other property for the Project, nor contribute any land or other property to the Project. Nothing contained in this ordinance or the Financing Agreement, the Indenture, the Regulatory Agreement, the Net Operating Loss Agreement, Completion Guaranty, the Deed of Trust or the Preliminary or final Private Placement Memorandum shall give rise to any personal or pecuniary liability of any officer, employee or agent of the Town. -11- • E Section 14. This ordinance shall be and remain irrepealable until the Bonds and the interest thereon shall have been fully paid, cancelled and discharged. Section 15. If any section, paragraph, clause or provision of this ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this ordinance. Section 16. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith and with the documents hereby approved, are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance, or part thereof. Section 17. This ordinance, immediately on its final passage and adoption, shall be published by posting the ordinance in full in four places as required by Section 6.7 of the Town Charter. INTRODUCED, PASSED ON FIRST READING AND ORDERED PUBLISHED in full this10'.th day ofJulY,1990. Mayor Town of Avo , Colorado (SEAL) -12- FINALLY ADOPTED AND ORDERED FINALLY PUBLISHED in full this 24th day of JulY,1990. (SEAL) Attest: Town Clerk Town of Avon, Colorado Mayor Town of Avon, Colorado -13- • • It was thereupon moved by Councilmember seconded by Councilmember and that the foregoing ordinance read for the first time at this meeting, as aforesaid, be approved and passed on first reading to be published by posting in full in the four places required by Section 6.7 of the Town Charter and that a public hearing be held thereon at the special meeting of the Town Council at the Town Hall on June 26, 1990 at the hour of noon. The question being upon the adoption of such motion, the roll was called with the following results: Those Voting Yes: Mike Bennett Jerry Davis David Garton Gloria McRory Albert Buzz Reynolds Sr. Jim Stovall Those Voting No: Those Absent: members of the Town Council having voted in favor of such motion, the presiding officer thereupon declared the motion carried. Thereupon, the Council considered other business and took other action not concerning the proposed authorization of the issuance of the Town of Avon, Colorado, Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990. Thereafter, there being no further business to come before the meeting, on motion duly made, seconded and unanimously carried, the meeting was adjourned. -14- i • Mayor Town of Avon, Colorado (SEAL) Attest: Town Clerk Town of Avon, Colorado -15- • • STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Patricia Doyle, Town Clerk of the Town of Avon, (the "Town"), in the County of Eagle and State of Colorado, do hereby certify: 1. The foregoing pages numbered -1- through -15- constitute a true, correct, complete and compared copy of the record of the proceedings taken by the Town Council of the Town at a duly called regular, open, public meeting thereof held on June 12, 1990, so far as said minutes relate to an ordinance authorizing the issuance of the Town of Avon, Colorado Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990, a copy of which is therein set forth. 2. A copy of such ordinance contained in such minutes is a true, correct, complete and compared copy of the original of the ordinance adopted by the Town Council at the meeting. 3. I published the ordinance by posting the full ordinance on June 12, 1990, immediately following the meeting at the following four places pursuant to the Charter and ordinance: (a) The office of the Town Clerk (b) City Market (c) Coastal Mart, Inc. (d) Aynn Post Office -16- • • 4. The Mayor and 6 other members of the Town Council were present at such meeting, and 6 members of the Council voted on the adoption of the ordinance, as in such minutes set forth. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Town of Avon this 12 thday of June, 1990. (SEAL) -17- uwii vi PIVU11, wioraao 0 • STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) The Town Council of the Town of Avon, in Eagle County, Colorado, met in special session, in full conformity with law and the Charter, ordinances and rules of the Town, at the Town Hall, being the regular meeting place of the Council, on Friday, June 26, 1990, at the hour of _ _ noon. Upon roll call, the following were found to be present, constituting a quorum: Mayor: Mayor Pro Tem: Other Councilmembers: Allan R. Nottingham Gloria McRory Mike Bennett Jerry Davis David Garton Albert Buzz Reynolds Sr. Jim Stovall Absent: constituting all the members of the Town Council. There were also present: Town Clerk: Town Attorney: Town Manager: Patricia J. Doyle John Dunn Bill James -18- • • Thereupon, the following proceedings, among others, were had and taken: The Clerk announced that an ordinance entitled: AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF THE TOWN OF AVON, COLORADO, MULTIFAMILY HOUSING REVENUE BONDS (EAGLEBEND PROJECT) SERIES 1990 IN THE AGGREGATE PRINCIPAL AMOUNT OF $5,000,000 TO FINANCE THE CONSTRUCTION OF A MULTIFAMILY RENTAL HOUSING PROJECT TO PROVIDE MORE ADEQUATE RESIDENTIAL HOUSING FACILITIES FOR LOW- AND MIDDLE-INCOME FAMILIES AND PERSONS; RATIFYING CERTAIN ACTION HERETOFORE TAKEN; AUTHORIZING THE EXECUTION AND DELIVERY BY THE TOWN OF A FINANCING AGREEMENT, INDENTURE OF TRUST, REGULATORY AGREEMENT, NET OPERATING LOSS AGREEMENT, CLOSING DOCUMENTS AND SUCH BONDS IN CONNECTION THEREWITH; APPROVING THE FORMS OF A DEED OF TRUST AND COMPLETION GUARANTY; ACKNOWLEDGING THE USE OF A PRIVATE PLACEMENT MEMORANDUM, MAKING CERTAIN DETERMINATIONS AS TO THE SUFFICIENCY OF REVENUES AND AS TO OTHER MATTERS RELATING TO SUCH BONDS; REPEALING ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH. which ordinance was introduced and read by title for the first time on June 12, 1990, had, as ordered by the Town Council, been published by posting on June 12, 1990, and that the Clerk's certificate of posting is now on file in the office of the Town Clerk. Thereupon, the ordinance was read by title for the second time, printed copies having been furnished to Councilmembers and members of the public in attendance. A public hearing on the ordinance was then held. It was thereupon moved by Councilmember and seconded by Councilmember that the foregoing ordinance read for the -19- second time at this meeting, as aforesaid, be approved and finally adopted, to be published, by immediate posting in full this June 26, 1990, in the four places required by Section 6.7 of the Town Charter. The question being upon the adoption of such motion, the roll was called with the following results: Those Voting Yes: Mike Bennett Those Voting No: Those Absent: Jerry Davis David Garton Gloria McRory Albert Buzz Reynolds Sr. Jim Stovall members of the Town Council having voted in favor of such motion, the presiding officer thereupon declared the motion carried, and the ordinance adopted and approved. On motion unanimously adopted, it was ordered that the ordinance be numbered , be published by posting as aforesaid, and be recorded according to law. Thereupon, the Council considered other business and took other action not concerning the authorization of the issuance of the Town of Avon, Colorado, Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990. -20- i • Thereafter, there being no further business to come before the meeting, on motion duly made, seconded and unanimously carried, the meeting was adjourned. Mayor Town of Avon, Colorado (SEAL) Attest: Town Clerk Town of Avon, Colorado -21- • • STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Patricia Doyle, Town Clerk of the Town of Avon, (the '"Town"), in the County of Eagle and State of Colorado, do hereby certify: 1. The foregoing pages numbered -18- through -20- constitute a true, correct, complete and compared copy of the record of the proceedings taken by the Town Council of the Town at a duly called regular, open, public meeting thereof held on June 26, 1990, so far as said minutes relate to an ordinance authorizing the issuance of the Town of Avon, Colorado, Multifamily Housing Revenue Bonds (Eaglebend Project) Series 1990, a copy of which is set forth in the minutes of the Council meeting held on June 12, 1990. 2. A copy of such ordinance contained in such minutes is a true, correct, complete and compared copy of the original of the ordinance adopted by the Town Council at the meeting. 3. I published the ordinance by posting the full ordinance on June 12, 1990, immediately following the meeting at the following four places pursuant to the. Charter and ordinance: (a) (b) (c) (d) The office of the Town Clerk -22- 4. The Mayor and other members of the Town Council were present at such meeting, and members of the Council voted on the adoption of the ordinance, as in such minutes set forth. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Town of Avon this day of June, 1990. Town Clerk Town of Avon, Colorado (SEAL) -23- • i Li~j . c STATE OF COLORADO COUNTY OF EAGLE JAN 1 91 SS. TOWN OF AVON The Town Council of the Town of Avon, in Eagle County, Colorado, tact in regular session, in full conformity with law and the Charter, ordinances and rules of the Town, at the Town Hall, being the regular meeting place of the Council, on Tucsday, 1 Julie 26, 1990, at the hour of 7:30 p.m. Upon roll call, the following wera found to t; . present, constituting a quorum: Mayor: Mayor Pro Tem: Other Couneilmembers: Absent: lIan Nottingham -Mike Bennett constituting o-ill the members of the Town Council. There were also present: Town Clerk: Patricia J. Doyle Town Manager: William James A)ldd1Y1.,Cp d,jjl;di, Gloria McRory Jerry Davis David Garton Albert Buzz Reynolds, Jr. Jim Stovall Town Attorney: John Durin V-- Town Engineer: Norman Wood 1-1 ereupon, the following proceedings, among others, were had and taken; The Mayor announced that in connection with the Town of on, Colorado, Lfical Improvement District No. 1990-1, the Town Council Fixed 'Tt;c;sda}y, June 25, 1990, 2; 7:30 p.m., at the Town Council Chambers at the Town Hall, Avon, Colorado, as taw f: me ,ant? place upon which a hearing shall be had as to the propriety and advisahilit) u; providing utility line improvements in the proposed district; the Town Clerk announced t;ja; _ 3 written prowsts have been received. Tlrereupon the public hearing on the utility line improvements and Local Improvement District No. 1990.1 was held and anyone desiring to speak was giver, thc; opportunity to do so. 441559 B--545 P-415 01/09/91 14:20 PG 1 OF 8 REC DOC JOHNNETTE PHILLIPS EAGLE COUNTY CLERK, COLORADO 40.00 0.00 Wi6nrdW1024VM&t+ad.uW lane 22, 199: 081,