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TC Ord. No. 1991-12s ORDINANCE NO. 91-12 AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE TOWN OF AVON, COLORADO, OF TAXABLE LOCAL ASSESSMENT REFUNDING BONDS IN THE MAXIMUM AGGREGATE PRINCIPAL AMOUNT OF $1,085,000, FOR LOCAL IMPROVEMENT DISTRICT NO. 1990-1; PRESCRIBING THE FORM OF THE BONDS; PROVIDING FOR THE PAYMENT OF THE BONDS AND THE INTEREST THEREON; AND PROVIDING OTHER DETAILS IN CONNECTION THEREWITH. WHEREAS, the Town Council (the "Council") of the Town of Avon, Colorado (the "Town"), has created Local Improvement District No. 1990-1 (the "District"), for the purpose of making certain local improvements (the "improvements"), as described in Ordinance No. 90-6, passed and adopted on July 10, 1990 (the "Creation Ordinance") and providing for payment of the costs of the improvements; and WHEREAS, the Council has heretofore issued its Taxable Local Assessment Bonds, Series 1990 (the "Prior Bonds") for the District in an amount of $1,085,000 to pay for the costs of such improvements; and WHEREAS, pursuant to Chapter XV of the Charter of the Town (the "Charter") and Section 14.7 of the Charter, the Council may issue bonds payable from assessments levied within local improvement districts without an election and without limitation as to amount; and WHEREAS, pursuant to Section 14.6 of the Charter, the Council may authorize, by ordinance, without an election, issuance of refunding bonds for the purpose of refunding and providing for the payment of the outstanding bonds of the Town as the same mature, or an advanced maturity, by means of an escrow or otherwise; and WHEREAS, the Council has determined, and hereby determines, that it is advantageous to, and in the best interest of, the Town and its citizens and inhabitants that the Prior Bonds be refunded, paid and discharged as herein provided (the "Refunding Project"), and that the refunding bonds herein authorized (the "Bonds") be issued for the purpose of defraying in part the cost of the Refunding Project; and WHEREAS, the purpose of the Refunding Project is to reduce the interest rate of the refunded bonds for the benefit of the Town and for the benefit of persons obligated to pay assessments within the District; and WHEREAS, it is the intention of the Council that after issuance of the bonds that the interest rate on the assessments will be reduced; and WHEREAS, the Council has received a proposal (the "Bond Purchase Agreement") from Coughlin & Company, Inc., Denver, Colorado (the "Underwriter"), for the I purchase of said bonds; and WHEREAS, the Council has determined that said proposal is to the best advantage of the Town, and has determined to accept said proposal; and WHEREAS, it is necessary to provide for the issuance of said bonds, the form and payment thereof, and other details in connection therewith; and WHEREAS, there has also been submitted to the Council a form of Escrow Agreement designated "Town of Avon, Colorado, Taxable Local Assessment Refunding Bonds, Series 1991 Escrow Agreement" dated as of July 1, 1991 (the "Escrow Agreement") between the Town and Affiliated Denver National Bank (the "Escrow Bank") and a form of Paying Agent and Registrar Agreement dated as of July 1, 1991 (the "Registrar Agreement") between the Town and Affiliated Denver National Bank; BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Bond Details. By virtue of and pursuant to the Constitution of the State of Colorado, the Town Charter, and Town ordinances there shall be issued the "Town of Avon, Colorado, Local Improvement District No. 1990-1, Taxable Local Assessment Refunding Bonds, Series 1991" (the "Bonds"), for the purpose of refunding a portion of the Prior Bonds. The Bonds shall be in an aggregate principal amount of $1,085,000, shall be dated as of July 1, 1991, and shall consist of 217 Bonds in the denomination of $5,000 each. The Bonds shall be numbered consecutively from 1 to 217 with such prefix or suffix as the Registrar may determine. The Bonds shall be issued only as fully registered bonds and shall be due and payable in regular numerical order on December 1, 2005, subject to prior redemption as provided in Section 11 hereof. The Bonds shall bear interest payable semiannually on each June 1 and December 1. commencing on December 1, 19911 as folln.-s: -2- Interest Rate Amount Bond Numbers (per annum) $80,000 1-16 8.75% 80,000 17-32 8.75% 75,000 33-47 8.75% 70,000 48-61 9.00% 70,000 62-75 9.00% 70,000 76-89 9.50% 70,000 90-103 9.50% 70,000 104-117 9.50% 70,000 118-131 10.00% 70,000 132-145 10.00% 75,000 146-160 10.00% 70,000 161-174 10.25% 70,000 175-188 10.25% 70,000 189-202 10.25% 75,000 203-217 10.25% Section 2. Payment of Bonds, Paving Agent and Registrar. The principal of any Bond shall be payable to the registered owner thereof as shown in the registration records kept by Affiliated Denver National Bank in Denver, Colorado, or its successor (the "Registrar"), upon maturity and presentation and surrender thereof at the office of Affiliated Denver National Bank in Denver, Colorado, or its successor (the 'Paying Agent"). If, upon presentation of any Bond at or after its maturity, payment is not made as herein provided, interest thereon shall continue at the same rate per annum until the principal thereof is paid in full. Payment of interest on any Bond shall be made to the registered owner thereof by check or draft mailed by the Paying Agent on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day), to the registered owner thereof at his address as shown on the registration records kept by the Registrar at the close of business on the fifteenth day (whether or not a business day) of the calendar month preceding the interest payment date (the "Record Date"); but any such interest not so timely paid or duly provided for shall cease to be payable to the person who is the registered owner thereof at the rlnct_ of Nivim-cc on the Record Date and shall ke payable to the person who is the registered owner thereof at the close of business on a -3- Special Record Date for the payment of any defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the Bonds not less than ten days prior to the Special Record Date by first-class mail to each such registered owner as shown on the registration records on a date selected by the Registrar, stating the date of the Special Record Date and the date fixed f or the payment of such defaulted interest. The Paying Agent may make payments of interest by such alternative means as may be mutually agreed to between the owner of any Bond and the Paying Agent. All such payments shall be made in lawful money of the United States of America without deduction for the services of the Paying Agent or the Registrar. Section 3. Form and Execution of Bonds. The Bonds shall be signed with the manual or facsimile signature of the Mayor, attested and countersigned by the manual or facsimile signature of the Town Clerk, and sealed with a manual impression or a facsimile of the seal of the Town. Should any officer whose manual or facsimile signature appears on the Bonds cease to be such officer before delivery of the Bonds to the Underwriter, such manual or facsimile signature shall nevertheless be valid and sufficient for all purposes. The Bonds shall be in substantially the following form (provided that any portion of the text of the Bonds may, with appropriate reference, be printed or otherwise reproduced on the reverse of the Bonds): -4- [Form of Bond] No. UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF EAGLE $5,000 TOWN OF AVON LOCAL IMPROVEMENT DISTRICT NO. 1990-1 TAXABLE LOCAL ASSESSMENT BOND, SERIES 1991 INTEREST RATE MATURITY DATE DATED AS OF % December 1, 2005 July 1, 1991 REGISTERED OWNER: PRINCIPAL AMOUNT: FIVE THOUSAND DOLLARS The Town of Avon, in the County of Eagle and the State of Colorado (the "Town'), for value received, hereby promises to pay solely out of the special fund hereinafter designated, but not otherwise, to the registered owner named above, or registered assigns, upon presentation and surrender hereof at the principal office of Affiliated Denver National Bank in Denver, Colorado (the "Paying Agent"), the Principal Amount specified above, on the Maturity Date specified above (subject to the right of prior redemption hereinbelow mentioned), and to pay from such sources interest on such Principal Amount (computed on the basis of a 360-day year of twelve 30-day months), from the most recent interest payment date to which interest has been paid, or, if no interest has been paid, from the Dated As Of date specified above, at the Interest Rate per annum specified above, payable semiannually on December 1 and June 1 each year, commencing on December 1, 1991, until such Principal Amount is paid. Interest on this Bond will be paid on or before each interest payment date (or, if such interest payment date is not a business day, on or before the next succeeding business day) to the registered owner hereof by check or draft of the Paying Agent mailed by the Paying Agent to such registered owner at the address appearing on the registration records kept for that purpose at the office of Affiliated Denver National Bank in Denver, Colorado (the 'Registrar"), at the close of business on the fifteenth day (whether or not a -5- business day) of the calendar month preceding the interest payment date (the 'Record Date"). Any such interest not so timely paid shall cease to be payable to the person who is the registered owner hereof at the close of business on the Record Date and shall be payable to the person who is the registered owner hereof at the close of business on a Special Record Date for the payment of any defaulted interest. Such Special Record Date shall be fixed by the Registrar whenever moneys become available for payment of the defaulted interest, and notice of the Special Record Date shall be given to the registered owners of the bonds of the series of which this is one (the "Bonds") not less than ten days prior to the Special Record Date. Alternative means of payment of interest may be used if mutually agreed to between the owner of any Bond and the Paying Agent, as provided in the ordinance authorizing the issuance of the Bonds (the 'Bond Ordinance"). The principal of and interest on this Bond are payable in lawful money of the United States of America, without deduction for the services of the Paying Agent or Registrar. If upon presentation and surrender of this Bond to the Paying Agent at or after its maturity payment of this Bond is not made as herein provided, interest hereon shall continue at the Interest Rate specified above until the Principal Amount hereof is paid in full. Whenever considered advisable by the Town Manager, he may, and whenever funds may be held to the credit of the District exceeding the amount of interest on the unpaid principal becoming due on and prior to one year next after the last interest payment date, he shall call for prior redemption at any time a suitable number of Bonds in regular numerical order. Notice of prior redemption shall be given by mailing a copy of the redemption notice, not less than thirty (30) days prior to the date fixed for redemption, to the registered owner of this Bond at the address shown on the registration records maintained by the Registrar, all as set forth in the Bond Ordinance. On the redemption date specified in the redemption notice, interest on the Bonds so called shall cease. The Bonds are being issued by the Town in the aggregate principal amount of $1,085,000 for the purpose of paying a portion of the costs of local improvements to be constructed in Local Improvement District No. 1990-1, in the Town, by virtue of and in full conformity with the Constitution of the, State, of Colorado the. Tn- ('harter and ordinances, -6- including Chapter 12.08 of the Town Code, and pursuant to the duly adopted Bond Ordinance. Except as otherwise provided herein, payment of this Bond and the interest thereon shall be made from, and as security for such payment there is pledged, a special fund designated as the "Local Improvement District No. 1990-1 Bond Fund" (the 'Bond Fund"). The Bond Fund shall contain the proceeds of the Bonds remaining after the cost of the Refunding Project (as defined in the Bond Ordinance) (including all incidental costs) has been paid in full, the Bond proceeds set aside as accrued interest, and the proceeds from special assessments levied against property within the District and specially benefited by the improvements, all as more particularly set forth in the Bond Ordinance. The assessments constitute liens on and against the assessed property in the respective amounts apportioned by the ordinance of the Town levying the assessments. Pursuant to Section 15.3 of the Town Charter in consideration of general benefits conferred on the Town at large from the construction or installation of improvements in the District, the Town has covenanted in the Bond Ordinance to levy general (ad valorem) property taxes on all taxable property in the Town, or to transfer other legally available monies of the Town to pay for the Town's share of the costs of the construction of the improvements within the District in 15 equal annual installments of principal (subject to prepayment at any time without penalty or premium) with interest payable semiannually in accordance with the schedule set forth in the Bond Ordinance; provided, however, that such levy or transfer shall not exceed 15 mills or an amount which would result from the levy of 15 mills in any one year in the aggregate for all special improvement districts heretofore or hereafter created by the Town, such tax proceeds or other monies to be deposited in a special fund designated "Local Improve3ment District No. 1990-1 Town Costs Fund," which shall be used solely for paying principal of or interest on the Bonds. The Bond Ordinance provides that whenever three-fourths of the Bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to pay the remaining Bonds, and there is not sufficient money in the special surplus and deficiency fund (as provided in the Town Charter as it presently exists), then the Town shall nav the Bonds when chip. snd r(-.imh nrcP. itcPlf h., -nllet-t;ntY the ,vinnaid assesssments due the J b Y District. The Bond Ordinance provides that, if and to the extent that the Town Charter may -7- hereafter be amended so that the special surplus and deficiency fund is not required to be applied as security for the Bonds, the special surplus and deficiency fund will not constitute security for the Bonds; and by the acceptance of this Bond any owner hereof consents to such amendment and in such event waives any security provided by the special surplus and deficiency fund. It is hereby recited, certified, and warranted that the aggregate principal of the Bonds issued, including this Bond, does not exceed the amount authorized by law; that every requirement of law relating to the creation of Local Improvement District No. 1990-1, the construction, installation and other acquisition of the improvements, the assessment of a portion of the cost thereof, and the issuance of this Bond has been fully complied with by the proper officers of the Town; and that all conditions required to exist and things required to be done precedent to and in the issuance of this Bond to render the same lawful and valid, have happened, been properly done and performed, and did exist in regular and due time, form, and manner, as required by law. This Bond does not constitute a debt or an indebtedness of the Town within the meaning of any constitutional, Town charter, or statutory limitation or provision, and shall not be considered or held to be a general obligation of the Town. The payment of this Bond and the interest thereon 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 Bonds as set forth above. The Bonds are issuable only in the form of registered bonds in the denomination of $5,000 each. The Registrar shall not be required to transfer any Bonds: (1) during a period beginning at the opening of business 15 days before the day of mailing by the Registrar of a notice of prior redemption of Bonds and ending at the close of business on the day of such mailing, or (2) with respect to a particular Bond, after the mailing of notice calling such Bond for prior redemption. Except as otherwise provided herein and in the Bond Ordinance with respect to record dates for the payment of interest, the Town, the Paying Agent and the Registrar may deem and treat the. reaktered owner of any Bond as the absc!ute C::'.^.er thereof for va vv wa "I& -8- purposes (whether or not such Bond shall be overdue) and any notice to the contrary shall not be binding upon the Town, the Paying Agent or the Registrar. This Bond is transferable by the registered owner hereof or by his duly authorized attorney, upon surrender hereof to the Registrar, accompanied by a written instrument of transfer satisfactory to the Registrar, but only in the manner, subject to the limitations, and upon payment of the charges provided in the authorizing Bond Ordinance. Upon such transfer, the Registrar shall enter the transfer of ownership in the registration records and shall authenticate and deliver in the name of the transferee or transferees a new fully registered Bond in the denomination of $5,000, of the same maturity, number, and interest rate. The Registrar may impose reasonable charges in connection with transfers of Bonds, which charges (as well as any tax or other governmental charge required to be paid with respect to such transfer) shall be paid by the registered owner requesting such transfer. This Bond shall not be valid or become obligatory for any purpose or be entitled to any security or benefit under the Bond Ordinance until the certificate of authentication hereon shall have been manually signed by the Registrar. IN TESTIMONY WHEREOF, the Town Council of the Town of Avon has caused this Bond to be signed by the manual or facsimile signature of the Mayor, attested and countersigned by the manual or facsimile signature of the Town Clerk, and sealed with the corporate seal of the Town or a facsimile thereof, all as of the 1st day of July, 1991. (MANUAL OR FACSIMILE TOWN OF AVON, COLORADO SEAL) By: (Manual or Facsimile Sip-nature) Mayor ATTESTED: (Manual or Facsimile Signature) Town Clerk -9- 0 [Form of Registrar's Certificate of Authentication] CERTIFICATE OF AUTHENTICATION This Bond is one of the Bonds of the issue described in the within-mentioned Bond Ordinance, and this Bond has been duly registered on the registration records kept by the undersigned as Registrar for such Bonds. Date of Registration and Authentication AFFILIATED DENVER NATIONAL BANK, DENVER, COLORADO as Registrar By: Authorized Signatory -10- [Form of Transfer] ASSIGNMENT FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto appoints attorney-in-fact, to transfer the within Bond on the records kept for registration thereof with full power of substitution in the premises. Dated: Signature of Registered Owner: NOTICE: The signature to this assignment must correspond with the name of the registered owner as it appears upon the face of the within Bond in every particular, without alteration or enlargement or any change whatever. Signature guaranteed: (Bank, Trust Company, or Firm) Address of transferee: Tax Identification Number(s) or Social Security Number(s) of Transferee: the within Bond and irrevocably constitutes and -11- Section 4. Authentication. No Bond shall be valid or obligatory for any purpose or be entitled to any security or benefit under this ordinance unless and until a certificate of authentication on such Bond substantially in the form hereinabove set forth shall have been duly executed by the Registrar, and such executed certificate of the Registrar upon any such Bond shall be conclusive evidence that such Bond has been authenticated and delivered under this ordinance. The Registrar's certificate of authentication on any Bond shall be deemed to have been executed by it if signed by an authorized officer or signatory of the Registrar, but it shall not be necessary that the same officer or signatory sign the certificate of authentication on all of the Bonds issued hereunder. Section 5. Delivery of Bonds. Upon the adoption of this ordinance, the Town shall execute the Bonds and deliver them to the Registrar, and the Registrar shall authenticate the Bonds and deliver them to the Underwriter, as directed by the Town. The Registrar shall initially register the Bonds in the name of the Underwriter, or in the names of such transferees as the Underwriter may designate in writing satisfactory to the Registrar, or any combination thereof as directed by the Underwriter. Section 6. Registration and Transfer of Bonds, Persons Treated as Owners. The Registrar shall maintain records for the registration of ownership of each Bond as provided in this ordinance. Bonds may be transferred upon the registration records upon surrender of such Bonds to the Registrar, accompanied by a written instrument of transfer in form satisfactory to the Registrar, duly executed by the registered owner of the Bonds to be transferred or his duly authorized attorney-in-fact or legal representative, containing written instructions as to the details of the transfer of such Bonds, along with the social security number or tax identification number and the address of such transferee. No transfer of any Bond shall be effective until entered on the registration records. In all cases of the transfer of a Bond, the Registrar shall enter the transfer of ownership in the registration records and shall authenticate and deliver in the name of the transferee or transferees a new fully registered Bond in the denomination of $5,000, of the same maturity, number, and interest rate, all in accordance with the provisions of this ordinance. The Registrar may impose reasonable charges in connection with transfers of -12- Bonds, which charges (as well as any tax or other governmental charge required to be paid with respect to such transfer) shall be paid by the registered owner requesting such transfer. The Registrar shall not be required to transfer any Bonds: (1) during a period beginning at the opening of business 15 days before the day of mailing by the Registrar of a notice of prior redemption of Bonds and ending at the close of business on the day of such mailing, or (2) with respect to a particular Bond, after the mailing of notice calling such Bond for prior redemption. New Bonds delivered upon any transfer shall be valid special obligations of the Town, evidencing the same obligation as the Bonds surrendered, shall be secured by this ordinance, and shall be entitled to all of the security and benefits hereof to the same extent as the Bonds surrendered. Except as otherwise herein provided with respect to record dates for the payment of interest, the Town, the Paying Agent and the Registrar may deem and treat the registered owner of any Bond as the absolute owner thereof for all purposes (whether or not such Bond shall be overdue), and any notice to the contrary shall not be binding upon the Town, the Paying Agent or the Registrar. Section 7. Destruction of Bonds. Whenever any outstanding Bond shall be delivered to the Registrar for cancellation pursuant to this ordinance and upon payment of the principal amount and interest represented thereby, or whenever any outstanding Bond shall be delivered to the Registrar for transfer pursuant to the provisions hereof, such Bond shall be cancelled by the Registrar and counterparts of a certificate evidencing such cancellation shall be furnished by the Registrar to the Town. Section 8. Lost Bonds. Any Bond that is lost, stolen, destroyed, or mutilated may be replaced or paid by the Registrar upon receipt of such evidence, information or indemnity relating thereto as the Registrar and the Town may reasonably require, and upon payment of all costs and expenses in connection therewith. Section 9. Disposition of Bond Proceeds. The proceeds of the Bonds shall be applied in the following manner: A. First, there shall be deposited ;n a special account here'~y created -41, the Escrow Bank and designated as the "Town of Avon, Colorado, Taxable Local Assessment -13- Refunding Bonds, Series 1991 Escrow Account" (the "Escrow Account"), such proceeds of the bonds as are necessary (together with other legally available monies of the Town deposited therein) to purchase Federal securities and to fund an initial cash balance, as required by the Escrow Agreement. B. Second, there shall be deposited in the Bond Fund created in this ordinance all accrued interest received on the sale of the bonds. C. Third, there shall be retained by the Town an amount sufficient to pay the cost of the issuance of the bonds and the Refunding Project. D. After completion of the Refunding Project or after adequate provision is therefor made, any unexpended balance of the proceeds of the bonds shall be deposited in the Bond Fund. Neither the Underwriter nor any subsequent owners of the Bonds shall be responsible for the application or disposal by the Town or any of its officers of the funds derived from the sale thereof. In the event that all of the proceeds of the Bonds are not required to pay such costs, any remaining Bond proceeds shall be deposited to the Bond Fund hereinafter created, and used for the purpose of paying the principal of and interest on the Bonds. Proceeds of the Bonds may be temporarily deposited or invested, pending such use, in deposits or investments which are lawful for the Town. Section 10. Bond Fund; Additional Security; Remedies. A. The Bonds and the interest thereon shall be payable solely (except as herein provided) from a special fund hereby established and designated as the "Local Improvement District No. 1990-1 Bond Fund" (the 'Bond Fund"). From the proceeds of the Bonds there shall be deposited to the Bond Fund the accrued interest, if any, paid as part of the purchase price of the Bonds, and such amounts shall be used solely for the purpose of paying interest on the Bonds. There shall also be deposited into the Bond Fund any proceeds of the Bonds remaining after the cost of the Refunding Project has been paid in full, and all moneys received from the assessments levied against property within the District specially benefited by the improvements. The Tnwn herehv rnvo-nantc to take nil actions necessary or appropriate for the levying and collection of the assessments and all interest and -14- 0 penalties in connection therewith, and for the enforcement of the assessment liens, in accordance with applicable Town ordinances and other applicable law, for the purpose of paying the principal of and interest on the Bonds. All moneys received from the assessments shall be deposited, immediately upon receipt by the Town, to the Bond Fund, and shall be applied to the payment of the principal of and interest on the Bonds until such principal and interest is paid in full. Moneys in the Bond Fund may be temporarily deposited or invested, pending such use, in deposits or investments which are lawful for the Town, and any income from such deposits or investments shall be retained in the Bond Fund. B. Pursuant to Section 15.3 of the Town Charter and in consideration of general benefits conferred upon the Town at large from the construction or installations of improvements in the District, the Town covenants to levy general (ad valorem) property taxes on all taxable property in the Town, or to transfer other legally available monies of the Town to pay the Town's share of the costs of the improvements. The Town shall pay its share of the costs in 15 equal annual installments of principal payable on the dates set forth below (subject to prepayment at any time without penalty or premium) with interest thereon at the rate of 12% per annum from June 1, 1991 until December 1, 1991 and at the rate of 10.50% per annum thereafter payable semiannually on June 1 and December 1, commencing December 1, 1991 as follows: Principal Pa yment Date Amount December 1, 1991 $9,331.98 December 1, 1992 $9,331.98 December 1, 1993 $9,331.98 December 1, 1994 $9,331.98 December 1, 1995 $9,331.98 December 1, 1996 $9,331.98 December 1, 1997 $9,331.98 December 1, 1998 $9,331.98 December 1, 1999 $9,331.98 December 1, 2000 $9,331.98 December 1, 2001 $9,331.98 December 1, 2002 $9,331.98 December 1; 2003 $9,331.98 December 1, 2004 $9,331.98 December 1, 2005 $9,331.98 -15- Notwithstanding the foregoing, such levy or transfer shall not exceed 15 mills or an amount which would result from the levy of 15 mills in any one year in the aggregate for all special improvement districts heretofore or hereafter created by the Town, such tax proceeds or other monies to be deposited in a special fund designated "Local Improvement District No. 1990-1 Town Costs Fund" which shall be used solely for paying principal of and interest on the Bonds. C. Whenever three-fourths of the Bonds have been paid and cancelled and for any reason the remaining assessments are not paid in time to pay the remaining Bonds, and there is not sufficient money in the special surplus and deficiency fund (as provided in the Town Charter as it presently exists), then the Town shall pay the Bonds when due and reimburse itself by collecting the unpaid assessments due the District. If and to the extent that the Town Charter may hereafter be amended so that the special surplus and deficiency fund is not required to be applied as security for the Bonds, the special surplus and deficiency fund will not constitute security for the Bonds; and by the acceptance of any Bond any owner thereof consents to such amendment and in such event waives any security provided by the special surplus and deficiency fund. D. Any registered owner of any Bond shall have the right and power for the equal benefit and protection of all registered owners similarly situated: 1. By mandamus or other suit, action, or proceeding at law or in equity to enforce his rights against the Town, the Council, or any of the officers, agents or employees of the Town, and to require and compel the Town, the Council, or any of the officers, agents, or employees of the Town to perform and carry out its or their duties, obligations, or other commitments under this ordinance and under the Town's covenants and agreements with the registered owners of the Bonds contained in this ordinance; 2. By action at law or by suit in equity to require the Town and the Council to account as if it or they were the trustees of an express trust; 3. By action at law or by suit in equity to have appointed a receiver, which receiver may take possession of any accounts and may collect, receive, and apply all -16- revenues or other moneys pledged for the payment of the Bonds in the same manner as the Town itself might do; 4. By action at law or by suit in equity to enjoin any acts or things which might be unlawful or might be in violation of the rights of the registered owners of the Bonds; and 5. To bring suit upon the Bonds. Section 11. Prior Redemption, Refunding. Whenever considered advisable by the Town Manager, he may, and whenever funds may be held to the credit of the District exceeding the amount of interest on the unpaid principal becoming due on and prior to one year next after the last interest payment date, he shall call for prior redemption at any time a suitable number of Bonds in regular numerical order. The Town Manager shall give written instructions concerning any prior redemption of Bonds to the Registrar at least 60 days prior to the redemption date. Notice of redemption shall be given by the Registrar by mailing a copy of the notice by first class mail (postage prepaid), not more than sixty (60) nor less than thirty (30) days prior to the date fixed for redemption, to the registered owner of each Bond to be redeemed at the address shown on the registration records maintained by the Registrar and by publication once in a newspaper of general circulation in the Town; provided however, that failure to give such notice by mailing to any registered owner, or any defect therein, shall not affect the validity of any proceeding for the redemption of other Bonds as to which no such failure or defect exists. The notice shall specify by number the Bonds so called (if less than all outstanding Bonds are called). The principal amount so redeemed will be payable upon presentation and surrender of the Bond at the principal office of the Paying Agent, and accrued interest to the redemption date will be paid by check or draft mailed to the registered owner (or by alternative means if so agreed by the registered owner and the Paying Agent). On the redemption date specified in the redemption notice, interest on the Bonds so called shall cease. Nothing herein shall preclude the Town from refunding all or any portion of the Bonds or from exercising its right to redeem Bonds prior to maturity in connection therewith. -17- Section 12. Defeasance. When all principal and interest in connection with the Bonds have been duly paid, all obligations hereunder shall thereby be discharged and the Bonds shall no longer be deemed to be outstanding within the meaning of this Ordinance. There shall be deemed to be such due payment of the Bonds or any portion thereof when the Town has placed in escrow and in trust with a commercial bank located within or without the State of Colorado, and exercising trust powers, an amount sufficient (including the known minimum yield from noncallable federal securities in which such amount may be initially invested) to meet all requirements of principal and interest on the Bonds or such portion thereof as the same become due to their final maturities or upon designated prior redemption dates. The federal securities shall become due at or prior to the respective times on which the proceeds thereof shall be needed, in accordance with a schedule established and agreed upon between the Town and such bank at the time of the creation of the escrow, or the federal securities shall be subject to redemption at the option of the holders thereof to assure such availability as so needed to meet such schedule. Section 13. Maintenance of Escrow Account. The Escrow Account shall be maintained by the Town in an amount at the time of the initial deposits therein and at all times subsequently at least sufficient, together with the known minimum yield to be derived from the initial investment and any temporary reinvestment of the deposits therein or any part thereof in Federal Securities, to redeem the Refunded Bonds on September 1, 1991 (the 'Redemption Date"), for the redemption price of the principal amount so redeemed plus accrued interest to the redemption date. Section 14. Withdrawals from Escrow Account. Moneys shall be withdrawn by the Escrow Bank from the Escrow Account in a sufficient amount to permit the payment without default of the principal and interest due in connection with the redemption of the Prior Bonds on the Redemption Date. Any moneys remaining in the Escrow Account after provision shall have been made for the redemption in full of the Prior Bonds shall be deposited in the Bond Fund. Section 15. Insufficiency of Escrow Account. If for any reason the amount in the Escrow Account shall at any time he insiif_fi_cient fnr the nilmose of S r--r Prtinnc 13 and 14 hereof pertaining thereto, the Town shall forthwith from the first moneys available therefor -18- 1 deposit in such account such additional moneys as shall be necessary to permit the payment in full of the principal and interest due in connection with the Prior Bonds as herein provided. Section 16. Prior Redemption of Prior Bonds. The County has elected and does hereby declare its intent to exercise its option to redeem on September 1, 1991, all of the Prior Bonds. The Town is hereby obligated so to exercise such option, which option shall be deemed to have been exercised when the published and mailed notices are duly given as herein provided in this Section and Sections 17 and 18 hereof. Concurrently with the delivery of the Bonds, the Town Manager shall give irrevocable written instructions to the Escrow Bank as paying agent for the Prior Bonds, and the Escrow Bank is authorized and directed upon receipt of such instructions to give, in the name of the Town, such notice of prior redemption and defeasance of the then outstanding Prior Bonds. Section 17. Prior Redemption Notice. The notice of prior redemption and defeasance of the Prior Bonds shall be given on not more than sixty nor less than thirty days prior to September 1, 1991, by first class mail to each registered owner of any of the Prior Bonds to be redeemed at his address as it last appears on the registration records kept by the Registrar. Section 18. Form of Notice. The notice of prior redemption and defeasance of the Prior Bonds shall be in substantially the following form: -19- (Form of Notice) NOTICE OF PRIOR REDEMPTION AND DEFEASANCE OF TOWN OF AVON, COLORADO LOCAL IMPROVEMENT DISTRICT NO. 1990-1, TAXABLE LOCAL ASSESSMENT BONDS SERIES 1990 NOTICE IS HEREBY GIVEN that the Town of Avon, Colorado (the "Town") has caused to be deposited in escrow with Affiliated Denver National Bank, in Denver, Colorado, refunding bond proceeds and other moneys which have been invested (except possibly for a small initial cash balance remaining uninvested) in bills, notes, bonds and similar securities which are direct obligations of, or the principal and interest of which securities are unconditionally guaranteed by, the United States of America, to refund, pay, and discharge the principal of and interest on all of its outstanding Local Improvement District No. 1990-1, Taxable Local Assessment Bonds, Series 1990 (together the 'Refunded Bonds"). The Refunded Bonds will be called for redemption on September 1, 1991. On such date, the principal amount thereof and accrued interest thereon to the redemption date will become due and payable at Affiliated Denver National Bank, in Denver, Colorado, and thereafter interest will cease to accrue. According to a report pertaining to such escrow of certified public accountants in , , the escrow, including the known minimum yield from such investments and any temporary reinvestments and the initial cash balance remaining uninvested, is fully sufficient at the time of the deposit and at all times subsequently, to pay the principal and interest on the Refunded Bonds on September 1, 1991. DATED at Avon, Colorado, this , 1991. TOWN OF AVON, COLORADO By AFFILIATED DENVER M A TMM A r BANK, COLORADO, as Paying Agent -20- i Section 19. Acceptance of Bond Purchase Agreement. The Council hereby reaffirms its determination to accept the Bond Purchase Agreement as submitted by the Underwriter, and to sell the Bonds to the Underwriter upon the terms, conditions, and provisions as set forth herein and in said agreement. Section 20. Approval of Official Statement. The Council hereby approves the Preliminary Official Statement dated July 10, 1991, concerning the Bonds, in the form presented at this meeting, and authorizes the preparation of a final Official Statement for delivery at or prior to the date of delivery of the Bonds. Copies of the Preliminary Official Statement and final Official Statement are hereby authorized to be distributed by the Underwriter to all interested persons in connection with the sale of the Bonds. Section 21. Ratification, Direction to Effectuate All proceedings and other actions heretofore taken or adopted by or on behalf of the Town in connection with the District, the improvements, the levy of assessments in connection therewith, or the issuance of special assessment bonds, and not inconsistent with this ordinance, are hereby ratified, approved and confirmed. The appropriate officers and agents of the Town are hereby authorized and directed to take all other actions necessary or appropriate to effectuate the provisions of this ordinance, including but not limited to the execution of a Paying Agent and Registrar Agreement, the Bond Purchase Agreement, the Escrow Agreement and such certificates and affidavits as may be reasonably required by the Underwriter or otherwise appropriate. Section 22. Severability. If any one or more sections or parts of this ordinance shall be adjudged unenforceable or invalid, such judgment shall not affect, impair, or invalidate the remaining provisions of this ordinance, it being the intention that the various provisions hereof are severable. Section 23. Repealer. All acts, orders, resolutions, ordinances, or parts thereof, that are inconsistent or in conflict herewith are hereby repealed only to the extent of such inconsistency or conflict. Section 24. Ordinance Irrepealable. After the Bonds are issued, this Ordinance shall he and remain irrenPalnhlP iintil the. Bonds and the ints-r r -et tho-r,^.^. shall have been fully paid, satisfied, and discharged. -21- Section 25. Statutes Superseded. Pursuant to Article XX of the Colorado Constitution and the Charter of the Town, all statutes of the State of Colorado which might otherwise apply in connection with the District, the improvements, the levy of assessments in connection therewith, or the issuance of special assessment bonds, and which are in conflict with the provisions of this ordinance, are hereby superseded. Section 26. Limitations on Review of Proceedi . Pursuant to Section 15.5 of the Town Charter, no action or proceeding, at law or in equity, to review any acts or proceedings or to question the validity or enjoin the performance of the issue or collection of the Bonds, or the levy or collection of assessments or for any other relief against any acts or proceedings done or had pursuant to the Town Charter relating to the District, shall be maintained unless commenced within thirty (30) days after the performance of the act or the effective date of the resolution or ordinance complained of, or else be thereafter perpetually barred. Section 27. Effective Date. The effective date of this ordinance shall be seven days after public notice following its final passage. INTRODUCED, PASSED ON FIRST READING, AND ORDERED PUBLISHED THIS 9TH DAY OF JULY, 1991. (SEAL) /s/ M yor (SE.AL) ADOPTED AND APPROVED THIS 23RD DAY JULY, 1991. 0 ob, Mayor -22- 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 9TH DAY OF JULY, 1991, AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 91-11, SERIES OF 1991: AN ORDINANCE AUTHORIZING THE ISSUANCE BY THE TOWN OF AVON, COLORADO, OF TAXABLE LOCAL ASSESSMENT REFUNDING BONDS IN THE MAXIMUM AGGREGATE PRINCIPAL AMOUNT OF $1,085,000 FOR LOCAL IMPROVEMENT DISTRICT NO. 1990-1; PRESCRIBING THE FORM OF THE BONDS; PROVIDING FOR THE PAYMENT OF THE BONDS AND THE INTEREST THEREON; AND PROVIDING OTHER DETAILS IN CONNECTION THEREWITH. 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. Following this hearing the Council may consider final passage of this Ordinance. This notice is given and published by order of the Town Council of the Town of Avon, Colorado. Dated this 26th day of June, 1991. POSTED AT THE FOLLOWING PUBLIC PLACES WIT OF AVON ON JUNE 26, 1991: THE AVON POST OFFICE IN THE MAIN LOBBY THE CITY MARKET IN THE MAIN LOBBY THE COASTAL MART, INC.; and THE AVON MUNICIPAL BUILDING IN THE MAIN L, TOWN OF AVON, COLORADO Local Improvement District No. 1990-1 Taxable Local Assessment Refunding Bonds, Series 1991 July 23, 1991 BOND PURCHASE AGREEMENT Town of Avon, Colorado P.O. Box 975 Avon, Colorado 81620 Town Council: On the basis of the representations, warranties and covenants and upon the terms and conditions contained in this Bond Purchase Agreement, Coughlin and Company, Inc. (the Underwriter) hereby offers to purchase from you $1,085,000 aggregate principal amount of the Town of Avon, Colorado, Local Improvement District No. 1990-1, Taxable Local Assessment Refunding Bonds, Series 1991 (the Bonds), to be issued by the Town of Avon, Colorado (the Issuer) under and pursuant to a Bond Ordinance (the Bond Ordinance). Section 1. Issuer's Representations Warranties and Agreements. By your acceptance hereof you hereby represent and warrant to, and agree with, the Underwriter that: (a) The Issuer is a duly organized political subdivision of the State of Colorado. The Issuer is authorized pursuant to its home rule charter (the Charter), to issue the Bonds for the purpose of constructing local improvements described in the Bond Ordinance and to assess the cost thereof against property specially benefited by such improvements. (b) The Issuer has complied with all provisions of the Charter and Town Code of the Issuer and other laws of the State of Colorado, and has full power and authority to consummate all transactions contemplated by this Agreement, the Bond Ordinance and any and all other agreements relating thereto. (c) The Issuer has duly authorized or shall prior to the issuance of the Bonds authorize all necessary action to be taken by it for (i) the issuance and sale of the Bonds vinnn tt:P t,-rmg gt-t forth herein and the Bond Ordinance and the final Official Statement relating to the sale of the Bonds (the Official Statement); the application of Bond proceeds in the manner set forth in the Bond Ordinance; (iii) the execution, delivery, receipt and due performance of this Agreement, the Bonds, the Bond Ordinance and any and all such other agreements and documents as may be required to be executed, delivered and received by you in order to carry out, give effect to and consummate the transactions contemplated hereby and by the Official Statement; and (iv) the carrying out, giving effect to and consummation of the transactions contemplated hereby and by the Bond Ordinance and the Official Statement. Executed counterparts of the Bond Ordinance will be delivered to the Underwriter by you at the Closing Time (hereinafter defined). (d) There is no action, suit, proceeding, inquiry or investigation at law or in equity or before or by any court, public board or body pending or, to the Issuer's knowledge, threatened against or affecting the Issuer, (or, to the Issuer's knowledge, any basis therefor) wherein an unfavorable decision, ruling or finding would adversely affect the transactions contemplated hereby or by the Official Statement or the validity of the Bonds, the Bond Ordinance, this Agreement or any agreement or instrument to which the Issuer is a party and which is used or contemplated for use in the consummation of the transactions contemplated hereby or by the Official Statement. (e) The execution and delivery of this Agreement, the Bonds, the Bond Ordinance and the other agreements contemplated hereby and by the Official Statement, and compliance with the provisions thereof, will not conflict with, or constitute on the part of the Issuer a breach of or a default under, any existing law, court or administrative regulation, decree or order or any agreement, indenture, mortgage, lease or other instrument to which the Issuer is subject or by which the Issuer may be bound. (f) Any certificate signed by any authorized officials of the Issuer and delivered to the Underwriter shall be deemed a representation and warranty by the Issuer to the Underwriter as to the statements made therein. Section 2. Purchase, Sale and Delivery of the Bonds. On the basis of the representations, warranties and covenants contained herein and in the Bond Ordinance, and subject to the terms and conditions herein set forth, at the Closing Time (hereinafter defined) the Underwriter agrees to purchase from the Issuer and the Issuer agrees to sell to the Underwriter the Bonds at the price of 100% of the principal amount thereof, plus accrued interest. The Bonds shall be issued under and secured, and shall bear interest, mature and be subject to redemption as provided in the Bond Ordinance. Payment for the Bonds shall be made by certified or official bank check or draft in New York Clearing House Funds or federal funds payable to the order of Affiliated Denver National Bank, in Den ~,er~ Colorado (the T -e ictrur and 13- * -n Ag r) ♦ 1 A:An A X 4 ' v a ~V JN Ua ulaY l u all e.ak at LVVV rLlt1. local time, on or about August 1, 1991 or such other place, time or date as shall be mutually agreed upon by you and the Underwriter. The date of such delivery and payment is herein -2- called the "Closing Date," and the hour and date of such delivery and payment is herein called the "Closing Time." The delivery of the Bonds shall be made in definitive form, bearing CUSIP numbers (provided neither that the printing of a wrong number on any Bond nor the failure to print a number thereon shall constitute cause to refuse delivery of any Bond) as registered bonds. The Bonds shall be available for examination and packaging by the Underwriter at least 24 hours prior to the Closing Time. Section 3. Conditions to the Underwriter's Obligations. The Underwriter's obligations hereunder shall be subject to the due performance by the Issuer of its obligations and agreements to be performed hereunder at or prior to the Closing Time and to the accuracy of and compliance with its representations and warranties contained herein, as of the date hereof and as of the Closing Time, and are also subject to the following conditions: (a) The Bonds, and the Bond Ordinance shall have been duly authorized, executed and delivered in the form heretofore approved by the Underwriter with only such changes therein as shall be mutually agreed upon by the Issuer, the Underwriter and the Paying Agent. (b) At the Closing Time, the Underwriter shall receive: (i) The opinions in form and substance satisfactory to the Underwriter, dated as of the Closing Date, of Sherman & Howard, Bond Counsel as to (A) the due authorization, execution, delivery and validity of the Bonds, (B) the exemption of the Bonds from registration requirements under federal securities law, and (C) the adequacy of information prepared in connection with the offer and sale of the Bonds; (ii) A certificate, satisfactory to the Underwriter, of the Mayor, or any other duly authorized officer of the Issuer satisfactory to the Underwriter, dated as of the Closing Date, to the effect that: (A) the Issuer has duly performed all of its obligations to be performed at or prior to the Closing Time; (B) the Issuer has authorized, by all necessary action, the execution, delivery, receipt and due performance of the Bonds, the Bond Ordinance, and any and all such other agreements and documents as may be required to be executed, delivered and received by the Issuer in order to carry out, give effect to and consummate the transactions contemplated hereby and by the Official Statement; (C) no litigation is pending, or to his knowledge threatened, to restrain or enjoin the issuance or sale of the Bonds or in any way affecting any authority for or the validity of the Bonds, the Bond Ordinance, or the existence or powers of the Issuer or its right to participate in the transaction contemplated by the Official Statement; and (D) the execution, delivery, receipt and due performance of the Bonds, the Bond Ordinance and other agreements contemplated h..ereby and by t.".e Official Statement under the circumstances contemplated thereby and the Issuer's compliance with the provisions thereof will not conflict with or constitute on -3- its part a breach of or a default under any existing law, court or administrative regulation, decree or order or any agreement, indenture, mortgage, lease or other instrument to which it is subject or by which it is or may be bound; and (iii) Such additional certificates and other documents as the Underwriter and its counsel may reasonably request to evidence performance or compliance with the provisions hereof and the transactions contemplated hereby and by the Official Statement, all such certificates and other documents to be satisfactory in form and substance to the Underwriter. Section 4. The Underwriter's Right to Cancel. The Underwriter shall have the right to cancel its obligations hereunder to purchase the Bonds (and such cancellation shall not constitute a default under this Agreement) by notifying the Issuer in writing or by telegram of its election to make such cancellation between the date hereof and the Closing Time, if at any time hereafter and prior to the Closing Time: (a) Any legislation, ordinance, rule, home rule charter provisions or regulation shall be introduced in or be enacted by the Legislature of the State of Colorado or by any governmental body, department or agency of the Issuer or the State of Colorado, or a decision by any court of competent jurisdiction within the State of Colorado shall be rendered which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds, or litigation challenging the Charter, the Bond Ordinance, the ordinance pursuant to which Local Improvement District No. 1990-1 (the District) was created or any assessing ordinance introduced or adopted in connection with the District shall be filed in any court in the State of Colorado; (b) A stop order, ruling, regulation or official statement by or on behalf of the Securities and Exchange Commission or any other governmental agency having jurisdiction of the subject matter shall be issued or made to the effect that the issuance, offering or sale of obligations of the general character of the Bonds, or the issuance, offering or sale of the Bonds, including all underlying obligations, as contemplated hereby or by the Official Statement, is in violation or would be in violation of any provision of the federal securities laws, the Securities Act of 1933, as amended and as then in effect, or the registration provisions of the Securities Exchange Act of 1934, as amended and as then in effect; (c) Legislation shall be enacted by the Congress of the United States of America, or a decision by a court of the United States of America shall be rendered, to the effect that obligations of the general character of the Bonds, or the Bonds, including all the underlying obligations, are not exempt from rexrktrntinn iintiPr nr nthpr re u;rnm,ents. of t urid- Ant F 193 o----- q.,.., he Sec..C.- - of .'2,, us amended and as then in effect, or the Securities Exchange Act of 1034, as amended and as then in effect; -4- (d) Any event shall have occurred, or information become known, which, in the Underwriter's opinion, makes untrue in any material respect any statement or information contained in the Official Statement as originally circulated, or has the effect that the Official Statement as original circulated contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading; (e) Additional material restrictions not in force as of the date hereof shall have been imposed upon trading in securities generally by any governmental authority or by any national securities exchange; (f) The New York Stock Exchange or other national securities exchange, or any governmental authority, shall impose, as to the Bonds or obligations of the general character of the Bonds, any material restrictions not now in force, or increase materially those now in force, with respect to the extension of credit by, or the charge to the net capital requirements of, underwriters; (g) A general banking moratorium shall have been established by Federal, New York or Colorado authorities; or (h) A war involving the United States shall have been declared, or any conflict involving the armed forces of the United States shall have escalated, or any other national emergency relating to the effective operation of government or the financial community shall have occurred, which, in the Underwriter's opinion, materially adversely affects the market price of the Bonds. Section 5. Use of Official Statement. The Issuer hereby ratifies and confirms the Underwriter's use of the Preliminary Official Statement, hereby ratifies and confirms that the Preliminary Official Statement is, and has been designated by the Issuer prior to delivery to the Underwriter as, the "near final official statement" within the meaning of Rule 15c2-12 of the Securities and Exchange Commission (the "Rule") and authorizes the use of, and will make available, the Official Statement for the use by the Underwriter in connection with the sale of the Bonds. Delivery of the Official Statement by the Issuer shall be deemed to be a determination that the Official Statement is the "final official statement" within the meaning of the Rule. The Issuer shall, within seven days of the date hereof, provide sufficient copies of the Official Statement for the Underwriter to provide them to potential customers on request and to comply with the rules of the Municipal Securities Rulemaking Board. Section 6. Representations, Warranties and Agreements to Survive Delivery. All of the representations, warranties, and agreements of the Issuer shall remain operative -5- and in full force and effect, regardless of any investigations made by the Underwriter on its- own behaI& and shall survive delivery of the Bonds to the Underwriter. Section 7, E ment of Exoenses. Upon delivery of the Bonds, the Issuer shall pay the Underwriter a fee of $20,000. All expenses and costs to effect the authorization, preparation, issuance, delivery and sale of the Bonds and any expenses incident to the performance of the obligations of the Issuer hereunder, shall be paid by the Issuer. Section 8. Notice. Any notice or other communication to be given to the Issuer under this Agreement may be given by mailing or delivering the same in writing to the Town of Avon, Colorado, P.O. Box 975, Avon, Colorado 81620, Attention: Mayor; and any notice or other communication to be given to the Underwriter under this Agreement may be given by delivering the same in writing to Coughlin and Company, Inc., 621 Seventeenth Street, Denver, Colorado 80202. Section 9. Aenlicable Law: NonaWgUbility. This agreement shall be governed by the laws of the State of Colorado. This agreement shall not be assigned by the Issuer. Section 10. lxecution of Counterparts. This agreement may be executed in several counterparts, each of which small be regarded as an original and all of which shall constitute one and the same document. Very truly yours, COUGHLIN AND COMPANY, INC. By Accepted as of the date first above written: -6- T04VIN OF AVON, COLORADO