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TC Ord. No. 1991-13ORDINANCE NO. 91-13 SERIES OF 1991 AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That certain Equipment Lease Agreement, together with Exhibits, is attached hereto as Addendum I, and the terms of this agreement are hereby approved and hereby authorized. Section 2. The Mayor and Town Clerk are hereby authorized and directed to execute said Equipment Lease Agreement. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 23rd day of July, 1991, and a public hearing on this ordinance shall be held at the regular meeting of the Town council of the Town of Avon, Colorado, on the 13th day of August, 1991, at 7:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, ORADO L Jerr Davi , Mayor EST: Patty Ney rt, eputy Town Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 13th day of August, 1991. (ALu'.L~~ Jerry Davis Mayor A ST: Patty Neyha t, D puty Town clerk MASTER MUHICIPAL LEASE AND OPTION AGREUCa4T Lessor: Municipal Services Group, Inc. 165 South Union Blvd. Union Tower, Suite 160 Denver, Colorado 80228 Lessee: Town of Avon P.O. Box 975 Avon, Colorado 81620 Agreement No. 673 This Master Municipal Lease and Option Agreement (the "Agreement) entered into between Municipal Services Group, Inc.. (together with any assignee thereof collectively referred to herein as the 'Lessor), and Town of Avon ('lessee"), a Municipality duly organized and existing under the laws of the State of Colorado ("State"); WITNESSETIt WHEREAS, the Lessee desires to finance the Equipment pursuant to the terms of this Agreement; and WHEREAS Lessor desires to lease certain Equipment (referred to collectively as the "Equipment" or "Unit(s) of Equipmerin to Lessee, and Lessee desires to lease the Equipment from Lessor, subject to the terms and conditions of and for the purposes set forth in this Master Lease Agreement; and WHEREAS, the Lessor, simultaneously with the execution and delivery of this Agreement, may enter into an escrow agreement (the 'Escrow Agreement") with an escrow agentwhereby the lessor, or its Assignee, if any, shall deposit monies sufficient to acquire the Equipment to be leased hereunder; and WHEREAS, lessee is authorized under the Constitution and laws of the State to enter into this Agreement for the purposes set forth herein; NOW, THEREFORE, for and in consideration of the premises hereinafter contained, the parties hereby agree as follows: ARTICLE 1 COVENANTS OF LESSEE Lessee represents, covenants and warrants, for the benefit of lessor and its assignees, as follows: (a) Lessee is a public body, corporate and politic, duly organized and existing under the Constitution and laws of the State. (b) lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. (c) lessee is authorized under the Constitution and laws of the State to enter into this Agreement, all Individual Payment Schedules (as defined below) and the transarrion contemplated hereby, and to perform all of its obligations hereunder. (d) lessee has been duly authorized to execute and deliver this Agreement and each of the Individual Payment Schedules under the terms and provisions of the ordinance or resolution of its governing body, attached hereto as Exhibit A, and by other appropriate official approval, and further represents and warrants that all requirements have been met, and procedures have occurred in order to insure the enforceability of this Agreement, and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the Equipment hereunder. Lessee shall cause to be executed an opinion of its counsel substantially in the form attached hereto as Exhibit B. (e) During the term of this Agreement, the Equipment will be used by Lessee only for the purpose of performing one or more governmental or proprietary functions of Lessee consistent with the permissible scope of lessee's authority and will not be used in a trade or business of any person or entity other than the Lessee. (f) Each lease of specific Equipment or Unit(s) of Equipment hereunder shall be evidenced by an Individual Payment Schedule executed by lessor and Lessee describing specific personal property, and setting forth provisions relating to the rem, the term of lease, disposition of Equipment upon Elie expiration of the lease term and other details with respect to it. The lease for each Unit of Equipment shall become effective on the Accrual Daze, as defined below, and the Individual Payment Schedule for the Unit or Unit(s) of Equipment shall specify such date as the effective date of the lease (the "Accrual Date). The original rem (the "Original Term) of each Individual Payment Schedule shall commence on the Accrual Daze as indicated therein and shall terminate the last day of Lessee's then current fiscal year. The term of the lease will be automatically renewed at the end of the Original Term or any renewal term (the "Renewal Term) for an additional one (1) year, unless the governing body of the Lessee furls to appropriate sufficient funds for the making of rental payments for the nest occurring Renewal Term as provided in Section 4 of this Agreement The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term except that the rental payments shall be as provided in the specific exhibit attached to the applicable Individual Payment Schedule. (g) During the period this Agreement is in force, Lessee will annually provide, if requested by lessor, current financial statements, budgets, proof of appropriation for the ensuing fiscal year and such other financial information relating to the ability of Lessee to continue this Agreement as may be reasonably requested by Lessor or its Assignee. (h) Each Unit of Equipment acquired under this Agreement will have a useful life in the hands of the Iessee that is substantially in excess of the Original Term and all Renewal Terms specifically relating to it All Equipment subject to this Agreement is, and during the period this Agreement is in force shall remain personal property. 0) This Agteeraer* applies to all items of personal property acquired, or to be acquired, by Lessee as evidenced by the execution of Individual Payment Schedules from time to time as may be required to fulfill Lessee's equipment needs. ARTICLE 2 DEFINITIONS The following terms will have meanings indicated below unless the context clearly requires otherwise: 'Accrual Date' is the date when the term of the Individual Payment Schedule begins and Lessee's obligation to pay rem accrues. The lease for each Unit of Equipment shall become effective on the Accrual Date, which shall be the Dated Date specified in Exhibit(s) E hereto. 'Acquisition Cost(s)' means the total cost of acquiring, including any delivery charges, and preparing the Equipment for the Lessee's use. "Adjusted Base Interest Fare' means the Luse Interest Rate as adjusted and as described in the Individual Payment Schedules. 'Base Late-rest Rate' means the interest rate quoted to Lessee at the inception of this Agreement as set forth in the respective individual payment Schedules attached hereto. 'Certificate of Acceptance' means the c ''mate of Acceptance attached hereto as Exhibit F relating to the applicable Unit(s) of Equipment whereby Lessee acknowledges receipt of the applicable Unit of Equipment in good condition. Copyright 1990 Municipal Services Group, Inc. Individual Payment Schedule(s)' meatus the schec ihich identify specific Units of Equipment, the Accrual Dates of the lea terms thereof (which are treated as separate leases) which may become a part of this Agreement from time to time. Each individual Payment Schedule(s) shall consist of at least, substantially the ....ms attached hereto as Exhibit(s) A, Exhibit(s) B, Exhibit(s) C, Exhibit(s) D, Exhibit(s) E, and Exhibit(s) F, including an original invoice and any other documents needed to perfect a security interest in the Equipment by the Lessor. 'lease Term' means collectively the Original Term and all Renewal Terms provided for in this Agreement. 'Purchase Price' means the amount which lessee may, in its discretion, pay to lessor in order to purchase the Equipment, as sex forth in Exhibit(s) E herein or as set forth in any applicable Individual Payment Schedule. 'Rental Payments' mean the rental payments payable by Lessee for each Unit of Equipment pursuant to the provisions of this Agreement and any applicable Individual Payment Schedule during the lease Term, payable in consideration of the right of lessee to use the Equipment during the lease Term. Rental Payments shall be payable by Lessee to the Lessor or its assignee in the amounts and at the times during the Lease Terra, as set forth in the Individual Payment Schedules made a part of this Agreement Vendor" means (i) the manufacturer/contractor of the Equipment as well as the agents or dealers of the manufacturer from whom Lessor purchased or is purchasing the Equipment or (if) shall mean, lessor, if so designated as herein above. ARTICLE 3 DFp09T OF MONIES; ACQUISITION AND LEASE OF EQUIPItffNT Section 3.01. Deposit of Monies. Transfers Upon Acceptance. In the event an Escrow Agreement is entered into pursuant to this Agreement, lessor shall cause to be deposited in the Acquisition Fund created under such Escrow Agreement and held by the Escrow Agem, ponies sufficient to acquire Elie Equip meot to be leased hereunder. Upon the expiration of three years from the Accrual Date, unless notified earlier by the lessor and lessee, the Escrow Agent shall apply any monies in the Acquisition Fund representing the contract price to have been paid to the Vendor(s) for any portion of the Equipment and related equipment for which the lessee has not executed a Certificate of Acceptance to the reduction of the Unpaid Principal Balance by paying such conies directly to the Lessor. The remaining Rental Payments shall be amended to reflect such prepayment of principal. The Lessor and lessee shall execute the Revised Individual Payment Schedule to acknowledge surrh change. Section 3.02. Lesser is Agent - Amuisition of the Equipment. Lessor hereby appoints the Lessee as its agent solely for the purpose of acquiring the Equipment and Lessee hereby accepts such appointment. Lessee and Lessor will do all things necessary to effect the acquisition of the Equipment free and clear of any encumbrances and subject the same to the security interests contemplated hereunder. Lessor agrees to acquire the Equipment pursuant to the lessee's specifications. Failure by the Vendors to perform shall not affect Iessee's obligation to make Rental Payments under this Agreement. Lessee agrees that the Equipment will be acquired in accordance with the terms, conditions and specifications therefor and on file with the lessor. Upon completion of acquisition of the Equipment satisfactory to the Lessee and after authorization by the Lessor, but in any event not Later than thirty (30) days following completion of such acquisition, lessee shall deliver to the Escrow Agent an executed Certificate of Acceptance Section 3.03. Payment of Acquisition Costs. Payment to the Vendor(s) of the Acquisition Cost(s) of acquiring the Equipment shall be made from the monies deposited with the Escrow Agent, as provided in Section 3.01, which shall be disbursed for that purpose in accordance with and upon compliance with Article 2 of the Escrow Agreement. ARTICLE 4 LEASE TERM . Section 4.01. Lease of Equipment. Lessor hereby demises, leases and lea to Lessee, and Lessee rents, leases and hires from lessor, the Equipment in accordance with the provisions of this Agreement, to have and to hold for Elie Tease Term. Section 4.02. Commencement of Lease Term The Original Term of any individual Payment Schedule shall commence on the Accrual Date and shall terminate the last day of lessee's then current fiscal year. The Lease Term will be automatically renewed at the end of the Original Term or any Renewal Term for an additional one year, unless the Lessee gives written notice to lessor not less than ninety (90) days prior to the end of the Original Term or Renewal Term then in effect, or such other notice as may be provided in Article 6 hereof, of lessee's intention to terminate this Agreement at the end of the Original Term or Renewal Term upon payment of the then applicable Purchase Price pursuant to Auricles 9 or Article 11, as the case may be. The terms and conditions during any Renewal Term shall be the same as the terms and conditions during the Original Term, except that the Reptal Payments shall be as provided in the applicable Individual Payment Schedule. Section 4.03. Termination of (ease Term The Lease Term as it pertains to any Individual Payment Schedule well terminate upon the earliest of any of the following events: (a) the expiration of the Original Term or any Renewal Term of the applicable Individual Payment Schedule and the non-renewal of such Individual Payment Schedule in the event of non-appropriation of funds pursuant to Section 6.06 hereof; (b) the eserdse by lessee of the option to purchase the Equipment granted under the provisions of Articles 9 or 11 hereof, (c) a default by lessee and lessor's election to terminate, this Agreement under Article 13; or (d) the payment by Lessee of all Rental Payments, late payment charges, past due finance charges, monies due to release Liens of any kind whatsoever, or other coxes and utilities authorized or required to be paid by Lessee hereunder or under any Individual Payment Schedule. This Agreement will automatically terminate in whole upon the last day of the last Renewal Term with respect to any Individual Payment Schedule(s) outstanding plus any other outstanding charges as set forth herein ARTICLE 5 EN10Yh NT OF EQUIPhIENT lessor hereby covenants to provide lessee during the tease Term with quiet use and enjoyment of the Equipment and Lessee shall during the Lease Term, peaceably and quietly have hold and enjoy the Equipment, without suit, trouble or hindrance from Lessor, except as expressly set forth in this Agreement Lessor shall have the right at all reasonable times during business hours to emer into and upon the property of Lessee for the purpose of inspecting the Equipment. ARIICIE 6 RENTAL PAYhUNNIS Section 6.01. Rental Pavments Constitute a Current Expense of Lessee. Lessor and lessee understand and intend that the obligation of Lessee to pay Rental Payments hereunder and each Individual Payment Schedule shall continue a current expense of lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or set limitations or requirements concerning the creation of indebtedness by lessee, or shall anything contained herein constitute a pledge of the general tax revenues, funds or monies of Lessee. Rental Pal shall be in consideration of lessee's use of the Equipment during the year in which such payments are due. Section 6.02. Pavmem of Rental Pavmems. Lessee shall pay Rental Payments, exclusively from legally available monies from its general fund and such other funds as may be designai by the Lessee in lawful money of the United Scares of America to Lessor or, in the event of assignment by Lessor, to its Assignee, in the amounts and no later than the dates set forth in the applicA Individual Payment Schedule(s). Lessee further agrees to forward Rental Payments to the lessor or its Assignee at least ten (10) days prior to the due date thereof, as set forth in each Applicable Individu Payment Schedule. In the event the Lessor or its Assignee does not receive Rental Payments within such period of time, then and in such event, a Twenty-five dollar ($25.00) late charge will be assess plus finance charges based on a percentage of the outstanding principal balance, equal to the lesser of eighteen percent (18%) per annum or the highest interest rate legally allowable under the laws the State. Section 6.03. Intent and Principal Components. A portion of each Rental Payment payable hereunder is paid as, and represents payment of, interest, and the balance of the Rental Payr payable hereunder is paid as, and represents payment of, principal. Exhibit(s) E hereto and each Individual Payment Schedule sea forth the interest component and the principal component of each Rt Payment during the Original Term and all Renewal Terms of the respective Individual Payment Schedules. Section 6.04. Rental Payments to be Unconditional. The obligations of Lessee to make payment of the Rental Payments required under this Article 6 and other sections of this Agreen and to perform and observe the covenants and agreements contained herein, shall be absolute and unconditional in all events, except as expressly provided under this Agreement. Notwithstanding dispute between Lessee and lessor. any Vendor or any other person, Lessee shall make all Rental Payments when due and skull not withhold any Rental Payments pending final resolution of such disT nor shall Lessee assert any right of set-off or counterclaim against its obligation to make such payments required under this Agreement Lessee's obligation to make Rental Payments during the Orfl Term or any Renewal Term shall not be abated through accident or unforeseen circumstances. Section 6.05. Continuation of Lease ' c by lessee. Lessee intends, subject to the provisions of Section 6.0f ',w, to continue the lease of the Equipment and all Units thereof through the Original Term and all of the Renewal Terms of adividual Payment Schedule and to snake the Rental Payments as the s tall become due hereunder and under each Individual Payment Schedule. Lessee reasonably believes that legally available fu. -..t an amount sufficient to make all Rental Payments during the Origineu ..-,m and each of the Renewal Terms for the Individual Payment Schedules can be obtained. Lessee further intends to do all things lawfully within its power to obtain and maintain funds from which the Rental Payments may be made, including making provision for such payments to the extent necessary in each biennial or annual budge submitted and adopted in accordance with applicable provisions of the laws of the State, to have such portion of the budget approved, and to exhaust all available reviews and appeals in the event such portion of the budget is. not approved. Section 6.06. Non-appropriation. In the event sufficient funds shall not be appropriated for the Rental Payments required to be paid in the next occurring Renewal Term, and if Lessee has no funds legally available for Reuel Payments from other sources, then Lessee may terminate this Agreement in whole only by terminating any or all of the Individual Payment Schedules at the end of the then current Original Term or Renewal Term of the respective Individual Payment Schedules, and lessee shall not be obligated to snake payment of the Rental Payments provided for in this Agreement or the Individual Payment Schedules beyond the then current Original or Renewal Term. lessee agrees to deliver notice to lessor of such termination at least ninety (90) days prior to the end of the then current Original or Renewal Term. If this Agreement is terminated under the provisions of this Section 6.06, lessee agrees peaceably to deliver the Unit or Units of Equipment subject to the Individual Payment Schedule or Schedules so terminated to the lessor at the location or locations specified by Lessor. TO THE EXTENT IAWTUI, Lessee agrees that if funds are appropriated to make Rental Payments for a succeeding fiscal year, it will not terminate this Agreement or airy Individual Payment Schedule during such fiscal year, and that if this Agreement or any Individual Payment Schedule is terminated pursuant to this provision by non-appropriation prior to the [Waking of all Rental Payments due hereunder, Lessee will not replace the Equipment with the same or similar property or retain others to provide the same or similar services until after the date on which Elie next occurring Renewal Term of the applicable Individual Payment Schedule or Schedules would have ended. In the event of Non-appropriation, lessor shall have the right to recover the interest which shall have accrued on the principal balance outstanding as of the preceding Rental Payment due date, as set forth in the specific exhibit attached to the applicable Individual Payment Schedule. ARTICLE 7 TTIIE TO EQUtPltaNI- SECURITY 24TERFSr Section 7.01. Title to the Equipment. During the term of this Agreement, title to the Equipment and any and all additions, repairs, replacements or modifications shall vest in Lessee, subject to the rights of lessor hereunder. Following an event of default as set forth in section 13.01 or non appropriation as set forth in section 6.06, or upon other termination of this lease for any reason other than lessee's rights under Section 4.03, (b), title to the Equipment shall immediately vest in lessor, and lessee will reasonably surrender possession of the Equipment to lessor. Section 7.02. Security Interest. To secure the payment of all of lessee's obligations under this Agreement, lessee grants to lessor a security interest constituting a first lien on the Equipment and on all additions, attachments, accessions and substitutions thereto, and on any proceeds therefrom. Lessee agrees to execute such additional documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest, and upon assignment, the security interest of any Assignees of Lessor, in the Equipment Lessor may request that Lessee affix labels to the Equipment showing Lessor's interest in it during the tetra that the Agreement is in effect ARTICLE 8 MAUTIBNAWM; MODIFICATION; TAXES; INSURANCE AND OTHER CHARGES Section 8.01. Maintenance of Equipment by Lessee, lessee agrees that at all titres during the Lease Term, at Lessee's own cost and expense, to cause maintenance to be performed in such a way so as to make all necessary and proper repairs, replacements and renewals of such component parts as may from time to time be required and to maintain, preserve and keep the Equipment in good repair, working order and condition. To the extent of the provisions of this Agreement and except as may otherwise be agreed to, neither the Lessor nor any of its Assignees shall have responsibility in any of these [natters, or for the making of improvements or additions to the Equipment. Section 8.02. Taxes. Other Governmental Charges and Utility Charges. The patties to this Agreement contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Equipment will be exempt from all taxes presently assessed and levied with respect to personal property. In the event that the use, possession or acquisition of the Equipment is found to be subject to caution in any form (except for income taxes of Lessor), Lessee will pay during the lease Tam, as the same respectively come due, all taxes and governmental [barges of any kind whatsoever that may at any time be lawfully assessed or levied against or with respect to the Equipment and any equipment or other property acquired by Lessee in substitution for, as a renewal or replacement of, or a modification, improvement or addition to the Equipment; provided that, with respect to any governmental charges that may Lawfully be paid in ittallments over a period of years, Lessee shall cause to be paid only such installments as have accrued during the time this Agreement is in effect Section 8.03. Provisions Regarding Insurance. At its own expense Lessee shall cause casualty, public liability and property damage insurance to be carried and maintained, or shall demonstrate to the satisfaction of lessor that adequate self-insurance is provided based upon actuarial sound insurance criteria as are consistent with generally accepted insurance industry standards with respect to the Equipment' sufficient to protect the Full Insurable Value (as that term is hereinafter defined) of the Equipment and to protect Lessor from liability in all events. All insurance proceeds from casualty losses shall be payable as hereinafter provided in this Agreement. Lessee shall furnish to lessor Certificates evidencing such coverage throughout the Lease Term and far each Individual Payment Schedule. Lessee shall notify Lessor within five (5) business days of any event of damage to or destruction of the Equipment The term "Full Insurable Value" as used herein shall mean the full replacement value of the Equipment. Any insurance policy pursuant to this Section 8.03 shall be so written or endorsed as to make losses, if any, payable to lessee and lessor as their respective interests may appear. The Net Proceeds (as defined in Section 9.01) of the insurance required in this Section 8.03 shall be applied as provided in Article 9 hereof. Each insurance policy provided for in this Section 8.03 shall contain a provision to the effect that the insurance company shall not cancel the policy or modify it materially and adversely to the intent of Lessor without fast giving written notice thereof to lessor at least 30 days in advance of such cancellation. Section 8.04. Advances. In the event lessee shall fail to maintain the full insurance coverage required by this Agreement or shall fail to keep the Equipment in good repair and operating condition. Lessor may (but shall be under no obligation to) purchase the required policies of insurance and pay the premiums on the same or may cause to be made such repairs or replacements as are necessary and provide for payment thereof, and all amounts so advanced therefor by lessor shall become additional rent for the then current Original Term or Renewal Term for the applicable Individual Payment Schedule or Schedules, which amounts, together with interest thereon at the rate of 18% per annum, Lessee agrees to pay. Section 8.05. Tax Covenants. The lessee will not make or direct any use of the proceeds of the obligation provided herein or any other funds of the lessee which will cause such obligation to be an "arbitrage bond' within the meaning of Section 148 of the Code, to be 'federally guaranteed" within the meaning of Section 149 of the Code, or to be a "private activity bond' within the meaning of Section 141 (a) of the Code. To that end, so long as any Rental Payments are unpaid, the lessee, with respect to such proceeds and such other funds, will comply with all requirements of such Code sections and all regulations of the United States Deparmtent of the Treasury issued thereunder to the extent that such requirements are, at the time, applicable and in effect Furthermore, to the extent applicable pursuant to Section 148 (f) of the Code, Lessee covenants to complete or cause to be completed all reporting requirements and rebate all positive arbitrage to the United States of America Lessee covenants that the Equipment will be used only for the purpose of performing one or more governmental or proprietary functions of lessee, and the Equipment will not be used in a trade or business of airy person or entity other than the Lessee on a basis different from the general public. The Lessee will not use or permit the use of the Equipment by any person for a "private business use" within the meaning of Section 141 (b) of the Code in such manner or to such extent as would result in the inclusion of interest received hereunder in gross income for federal income tax purposes under Section 103 of the Code. The Lessor and the Lessee shall at all rimes do and perform all acts and things permitted by law which are necessary or desirable in order to assure that the interest component of the Rental Payments will not be included in the gross income of the Lessor for federal income tax purposes. ARTICLE 9 DAMAGE, DB.MUCTION AND CONDEMNATION: USE OF NET PROCEEDS Section 9.01. Damage. Destruction and Condemnation Unless Lessee shall have exercised its option to purchase the Equipment or any Unit thereof by making payment of the Purchase Price as provided herein or in the applicable Individual Payment Schedule, if prior to the termination of the lease Term (a) the Equipment or any Unit or any portion thereof is destroyed (in whole or in part) or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any Unit or any pact thereof shall be taken under the exercise of the power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority, Lessee and lessor will cause the Net Proceeds (as defined below) of any insurance claim or condemnation awarded to be applied to the prompt repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article 9, the term' Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award after deducting all expenses (including attorneys' fees) incurred in the collection of such claim or award Section 9.02. Insufficiency of Net Proceeds. Subject to the Lessee's right to terminate this Agreement or any Individual Payment Schedule under Section 6.06 hereof, if the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01 hereof, Lessee shall either (a) complete the repair or replacement of damaged property and pay any costs in excess of the amount of Net Proceeds or (b) pay to the Lessor the amount of the applicable Purchase Price, applying Net Proceeds to such payment. ARTICLE io DLSCIAGffR OF WARRANTIES; VENDORS WARRAN77FS; USE OF THE EQUUWENT Section 10.01. Disclaimer of Warranties. AS BETWEEN LESSOR AND LESSEE, DELIVERY OF EQUIPMENT TO LESSEE AND EXECUTION BY LESSEE OF AN INDIVIDUAL PAYMENT SCHEDULE WITH RESPECT THERETO SHALL CONSTITUTE LESSEE'S ACKNOWLEDGEMENT THAT THE EQUIPMENT IS IN GOOD ORDER AND CONDITION AND IS OF THE MANUFACTURE, DESIGN AND CAPACITY SELECTED BY THE LESSEE, THAT THE LESSEE IS SATISFIED THAT THE SAME IS SUITABLE FOR ITS PURPOSE, AND THAT FOR PURPOSES OF THIS AGREEMENT LESSORS ASSIGNEES MARE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED WITH RESPECT TO EQUIPMENT, INCLUDING WITHOUT LIMITATION, ITS VALUE, DESIGN, CAPACITY, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS INTENDED FOR USE OF THE EQUIPMENT, OR WARRANTY WITH RESPECT THERETO AND LESSOR AND ITS ASSIGNEES HEREBY DISCLAIM ALL SUCH REPRESENTATIONS AND WARRANTIES. THIS SECTION IS INTENDED TO APPLY BETWEEN THE LESSOR AND LESSEE ONLY TO THE MENT OF THE FINANCING CONTEMPLATED HEREIN AND IN NO EVENT IS INTENDED TO AFFECT THE WARRANTIES OR REPRESENTATIONS CONTAINED IN OR INCLUDED WITHIN ANY CONTRACT ENTERED INTO FOR THE ACQUISITION OF THE EQUIPMENT EITHER WITH THE LESSOR, OR ANY OTHER VENDOR. NOTWITHSTANDING THE FOREGOING, IN THE EVENT LESSOR IS A VENDOR, LESSEE SHALL BE ENTITLED TO ALL APPLICABLE VENDOR WARRANTIES AS TO THE EQUIPMENT, PROVIDED THAT SUCH RIGHTS SHALL PERTAIN SOLELY TO LESSOR AS VENDOR, AND NOT TO ANY SUCCESSORS OR ASSIGNS OF LESSOR UNDER THIS LEASE In no event shall an Assignee, if any, of Lessor be liable for any incidema! indirect, special or consequential damage in connection with or arising out of this Agreement or the existence, furnishing, functioning or lessee's use of any item or products or services provided for in this Agreement. Section 10.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent and arEorney-in-fact during the lease Term, so long as Lessee shall not be in default hereunder, to assert from time to time whatever claims and rights, including warranties of the Equipment, which Lessor may have against the Vendor of the Equipmem. lessee's sole remedy for the breach of such warranty, indemnificati on or represemation shall be against the Vendor of the Equipment, and not against an Assignee, if any, of Lessor, nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and timely Payments hereunder. lessee expressly acknowledges that an Assignee, if any, of lessor makes, and has made, no representation or warranties whatsoever as to the existence or availability of such warranties of the Vendor of the Equipment. Section 10.03. Use of the Equipment. Lessee will not use, operate or maintain the Equipment or cause the Equipment to be used, operated or maintained improperly, carelessly, in violation of any applicable law or in a manner cona-d y to that contemplated by this Agreement. Lessee shall provide or cause to be provided all permi s and licenses, if any, necessary for the operation of the Equipment; Provided, however, that Lessee may comm in good faith the validity or application of any such law or rule in any reasonable manner which does not, in the opinion of Lessor, adversely affect the estate of Lessor in and to any of the items of the Equipment or its interest or rights under this Agreement. Lessee shall notify Lessor within five (5) business days if there are any claims or lawsuits arising in connection with the Equipm®t or use thereof. ARTICLE 11 OPTION TO PURCHASE The lessee is hereby granted the option to prepay all or a portion of its obligations under this Agreement and purchase the Equipment or any Unit thereof for the Purchase Price set forth in Exhibit(s) E hereto or on any applicable Individual Payment Schedule(s). At the request of lessee, lessor's security interest in the Equipment will be terminated and this Agreement shall terminate: (a) at the end of the lease Term, upon payment in full of Rental Payments due hereunder, plus all past doe charges, if any; or (b) at any time during the Original Term or any Renewal Term, upon payment by lessee of the then applicable Purchase Price as set forth in the applicable Individual Payment Schedule, plus all past due charges, if any; or (c) if the Lease Term is terminated pursuant to Article 9 of this Agreement, in the event of total damage, destruction or condemnation of the Equipment or any Unit thereof and, if Lessee is not on such date in defauk under this Agreement, upon payment of the then applicable Purchase Price to lessor plus all past due charges, if any, subject to the Lessee's right to terminate this Agreement or any Individual Payment Schedule under Section 6.06 hereof. In the event the Lessee purchases less than all of the Equipment, the related Individual Payment Schedule(s) shall be amended to reflect such prepayment of principal and the remaining Rental Payments shall be adjusted accordingly. Further, the Lessor and Lessee agree to execute such revised Individual Payment Schedule(s). ARTICLE 12 ASSn0AE.NT, SUBLEASING, LNDUANIFICATION MORTGAGING AND SELLING Section 12.01. Assi¢nmenr by Lessor. This Agreement, and the Lassoes right to receive payments hereunder, may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor at any time subsequent to this execution, without the necessity of obtaining the consent of Lessee; provided, however, chat no such assignment or reassignment shall be effective unless and until (i) Lessee shall have received notice of the assignment or reassignment disclosing the name and address of the assignee or subassignee, and (ii) in the event that such assignment or reassignment is made to a bank or trust company as trustee for hollers of certificates or other evidence representing interest in this Agreement, or rights to receive amounts hereunder, such bank or trust company agrees to maintain, or cause to be maimained on behalf of and as agent for Lessee, a book-envy system by which a record of the names and addresses of such holden as of any particular time is kept and agrees, upon request of lessee, to furnish such information to Lessee. Upon receipt of notice of assignment, Lessee agrees to reflect in a book entry the Assignee designated in such notice of assignment, and to make all payments to the Assignee designated in the notice of assignment, notwithstanding any claim, defense, setoff or counterclaim whatsoever (whether arising from a breach of this Agreement or otherwise) that lessee may from time to time have against Lessor, or the Assignee. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements which may be reasonably requested by lessor or its Assignee to protect their interests in the Equipment and in this Agreement Section 12.02. No Sale. Assignment or Subleasine by Lessee. This Agreement and the interest of Lessee in the Equipment may not be sold, assigned or encumbered by Lessee without the prior written consent of Lessor, which consent may be withheld in the total discretion of the Lessor taking into account, among other things, the treatment for federal income tax purposes of the interest component of Rental Payments. Section 12.03. Release and Indemnification Covenants. To the extent permitted by the laws and Constitution of the State, Lessee shall protect, hold harmless and indemnify Lessor from and against any and all liability, obligations, Losses, claims and damages whatsoever, regardless of cause thereof, and expenses in connection therewith, including, without limitation, counsel fees and expenses, penalties and interest arising out of or as the result of the entering into of thisAgreement, the ownership of any item of purchase, delivery, rejection, storage or return of any item of the Equipment or any accident in connection with the operation, use, condition, possession, storage or rerun of any item of the Equipment resulting in damage to property or injury to or death to any person. The indemnification arising under this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the termination of the lease Tetra for any reason Lessee agrees not to withhold or abate any portion of the payments required pursuant to this Agreement by reason of any defects, malfunctions, breakdowns or infirmities of the Equipment ARTICLE 13 EVENTS OF DEFAULT AND RF2®lFS Section 13.01. Events of Default Defined. The following shall be "events of default under this Agreement and the terms "event of default' and "default' shall mean, whenever they are used in this Agreement, any one or more of the following events: (a) Failure by lessee to pay any Rental Payment or other payment requited to be paid hereunder at the time specified herein; and (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Section 13.01 (a), for a period of 30 days after written notice, specifying such failure and requesting that it be remedied as given to Lessee by Lessor, unless lessor shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, lessor will not unreasonably withhold its consent to an extension of such time if corrective action deemed appropriate by lessor in its sole discretion, is instituted by Iessee within the applicable period and diligently pursued until the default is corrected The foregoing provisions of this Section 13.01 are subject to (L) the provisions of Section 6.01; and (if) if by reason of force maieure Lessee is unable in whole or in part to carry out its agreement on its part herein contained, other than the obligations on the part of Lessee contained in Article 6 and Section 8.03 hereof, Lessee shall not be deemed in default during the continuance of such inability. The term "force majeure" as used herein shall mean, without limitaton, the following: acts of God, spikes, lockouts or other industrial disturbances; acts of public enemies, orders or restraints of any kind of the government of the United States of America or of the state wherein Lessee is located or any of their departments, agencies or officials, or any civil or military authority; insurrections; riots; landslides; earthquakes; fines; storms; droughts; floods; or explosions. Section 13.02. Remedies on Default Whenever any event of default referred to in Section 13.01 hereof shall have happened and be continuing, lessor shall have the right, at its sole option without further demand or notice, to take one or any combination of the following remedial steps: (a) With or without termithe - this Agreement, (I) enter upon the location and retake possession of the' - '~ment and sell, lease or sublease the Equipment for the account of lessee, holding lessee liable for the rents and other amou table by lessee hereunder to the end of the Original Term or the the mt Renewal Term; or (its require lessee to assemble, pack, return and pay.the costs of returning the Equipment, within t. W) days, to a location specified by the Lessor, and (b) Take whatever action at law or in equity may appear necessary or desirable to enforce its rights as the Lessor of the Equipment Section 13.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. Any repossession or subsequent sale or lease by lessor of any item or Unit of Equipment shall not bar an action against Lessee for a deficiency, and the bringing of any action against or the entry of judgment against lessee shad apt bar Lessor's right in repossess any or all Units of Equipment No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from rime to time and as often as may be deemed expedient ARTICLE 14 MISCELLANEOUS Section 14.01. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered marl, postage prepaid, to the parries at their respective places of business. Section 14.02. Binding Effect This Agreement shall inure to the benefit of and shall be binding upon lessor and Lessee and their respective successor[ and assigns. Section 14.03. Severability. In the event any provision of this Agreement shall be held iirvalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 14.04. Amendments. The terms of this Agreement shall not be waived, altered, modified, supplemented or a+,+e,+aed in any manner whatsoever except by written instrument signed by the lessor and the lessee, nor shall any such amendment that affects the rights of lessor's Assignee be effective without such Assignee's consent Section 14.05. Execution in Counterparts. This Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 14.06. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. Section 14.07. Captions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement Section 14.08. Entire Agreement. This Agreement constitutes the entire agreement between Lessor and Lessee No waiver, consent modification or change of terms of this Agreement shall bind either parry unless in writing signed by both parries, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given There are no undetatandmgs, agreements, representations or warranties, express or implied, not specified herein regarding this Agreement or the Equipment leased hereunder. Any terms and conditions of any purchase order or other document (with the exception of Supplements) submitted by Lessee in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement will not be binding on Lessor and will not apply to this Agreement Lessee by the signature below of its authorized representative acknowledges that it has read this Agreement understands it, and agrees to be bound by its terms and conditions. IN WITNESS WHEREOF, Lessor has executed this Agreement in its corporate name with its corporate seal hereunto affixed and arrested by its duly authorized officers, and lessee has caused this Agreement to be executed in its corporate name with its corporate seal hereunto affixed and attested by its dirty authorized officers. This document is dated as of the Accrual Date, whether or not executed as of such date. LESSEE: Town of Avon est: aL- By: ) Title: I out n (J(~.1 k- Attest: By: Title: By: Title: ~Gll Y1 Ir1r/i~' l~ Date: 1 1411 1 FCCnn• M,+nirinal Carv:rec t- By: Title Date: ~Q~ INDIVIDUAL PAYMEMP SCHEDULE , TO MASTER MUNICIPAL LEASE AND OPTION AGREEMENT NUMBER 673 Entered into July 1, 1991, (the 'Dated Date') by and between the Lessor and the Lessee This Individual Payment Schedule consists of: Exhibit A Resolution of Governing Body Exhibit B Opinion of Lessee's Counsel Exhibit C Certificate as to Arbitrage Exhibit D Equipment Description Exhibit E Schedule of Payments Exhibit F Acceptance Certificate Supplements: Insurance Requirements 8038-G IRS Filing Bank Eligibility Certificate Small Issuer Exemption Certificate LAW OFFICES COSGRIFF, DUNN & ABPLANALP A PARTNERSHIP INCLUDING A PROFESSIONAL CORPORATION PETER COSGRIFF JOHN W. DUNN ARTHUR A. ABPLANALP, JR. TIMOTHY H. BERRY ALLEN C. CHRISTENSEN LAWRENCE P. HARTLAUS VAIL NATIONAL BANK BUILDING SUITE 300 108 SOUTH FRONTAGE ROAD WEST VAIL,COLORADO 81657 IN LEADVILLE: COSGRIFF, DUNN & BERRY P. O. BOX II LEADVILLE, COLORADO 60461 (719) 466-1666 TELERHONE: (303) 476-7552 TELECOPIER: (303) 476-4765 August 14, 1991 Municipal Services Group, Inc. 165 S. Union Boulevard Suite 160 Denver, Colorado 80228 Gentlemen: With respect to that certain Master Municipal Lease and Option Agreement ("the Agreement), dated by and between Municipal Services Group, Inc. ("Lessor") and Town of Avon ("Lessee") I am of the opinion that (i) the Lessee is a state or political subdivision thereof within the meaning of Section 103 of the Internal Revenue Code of 1986, as amended; (ii) the execution, delivery and performance by the Lessee of the Lease has been duly authorized by all necessary action on the part of the Lessee; (iii) the agreement is a legal, valid and binding obligation of Lessee, enforceable in accordance with its terms. In the event the Lessors obtain a judgment against Lessee in money damages, as a result of an event of default under the Agreement, Lessee will be obligated to pay such judgment; (iv) the signatures of the officers of the Lessee which appear on the Agreement are true and genuine; I know said officers and know them to hold the offices set forth below their names; and (v) the Equipment leased pursuant to the Agreement constitutes personal property under applicable law and when subjected to use by Lessee will not be construed as a fixture. Yours very truly, COSGRIFF, DUNN & ABPLANALP John W. Dunn Attorney for the Town of Avon JWD:kem THE PROFESSIONAL CORPORATION IS DUNN & ABPLANALP. P.C. IN VAIL. Agreement No. 673 EXHIBIT C CERTIFICATE AS TO ARBtrRAGE I, the undersigned officer of Town of Avon (the "Lessee") being the person duly charged, with others, with responsibility of issuing the Lessee's obligation in the form of that certain agreement entitled "Municipal Lease and Option Agreement" (the "Agreement") numbered 673, and issued said date HEREBY CERTIFY that 1. The Agreement was issued by the Lessee under and pursuant to existing law to finance the acquisition of the certain Equipment described therein. 2. Pursuant to the Agreement, the Lessee is entitled to receive said Equipment in consideration for the obligation of the Lessee under the Agreement. Said Equipment will be used in furtherance of the public purposes of the Lessee. The Lessee does not intend to sell said Equipment or said Agreement or to otherwise dispsose of said Equipment during the term of the Agreement. The Lessee will not receive any monies, funds, or other "proceeds" as a result of the Agreement. 3. The Lessee expects to make payments under the Agreement from its general funds on the basis of annual appropriations in amounts equal to the required payments under the Agreement. The remaining general funds of the Lessee are not reasonably expected to be used to make such payments and no other monies are pledged to the Agreement or reasonably expected to be used to pay principal and interest on the Agreement. 4. The Lessee has not received notice that its Certificate may not be relied upon with respect to its own issues nor has it been advised that any adverse action by the Commissioner of Internal Revenue is contemplated. 5. The Lessee certifies that the Properly (as defined in the Agreement) is or will be owned and operated by the Lessee and will not be used in the trade or business of any person on a basis different from the general public. To the best of my knowledge, information and belief the expectations herein expressed are reasonable and there are no facts, estimates or circumstances other than those expressed herein that would materially affect the expectations herein expressed. IN WITNESS WHEREOF, I have hereunto set my hand this W 'A day of 19 . Town of Avon By: Title: (U-:; C By: 'ry Title: C ~1 1 C f iii EKH 31T D DESCRIPTION OF EQUIPMENT The Equipment which is the subject of the attached Master Municipal Lease and Option Agreement is as follows: One Johnston Street Sweeper Together with all additions, accessions and replacements thereto. Lessee hereby certifies that the description of the Equipment set forth above constitutes an accurate description of the "Equipment", as defined in the attached Master Municipal Lease and Option Agreement applicable Individual Payment Schedule. LESSEE: Town of Avon By Tide: n,t3CC--J- Date: ( Location of Equipment 4CC 6o-) hJtpct#x-Vcd fk1n) LC' S-6 (cZZ` EXHIBIT E SCHEDULE OF PAYMENTS DATED DATE: AUG 1, 1991 TOWN OF AVON PAGE 1 OF 2 PMT PAYMENT PAYMENT PRINCIPAL INTEREST PURCHASE PRINCIPAL # DATE AMOUNT PORTION PORTION PRICE BALANCE 92,830.00 1 1 - Sep-91 1,879.59 1,265.36 614.23 93,597.33 91,564.64 2 1 - Oct-91 1,879.59 1,273.74 605.85 92,263.72 90,290.89 3 1 - Nov-91 1,879,59 1,282.17 597.42 90,922.33 89,008.72 4 1 - Dec-91 1,879.59 1,290.65 588.94 89,573.12 87,718.07 5 1 - Jan-92 1,879.59 1,299.19 580.40 88,216.04 86,418.87 6 1 - Feb-92 1.879.59 1,307.79 571.80 86,851.04 85,111.08 7 1 - Mar-92 1,879.59 1,316.44 563.15 85,478.07 83,794.64 8 1 - Apr-92 1,879.59 1,325.15 554.44 84,097.10 82,469.48 3 1 - May-92 1,879.59 1,333.92 545.67 82,708.08 81,135.56 10 1 - Jun-92 1,879.59 1,342.74 536.85 81,310.95 79,792.82 11 1 - Jul-92 1,879.59 1,351.63 527.96 79,905.67 78,441.18 12 1 - Aug-92 1,879.59 1,360.57 519.02 78,492.19 77,080.61 13 1 - Sep-92 1,879,59 1,369.57 510.02 77,070.47 75,711.04 14 1 - Oct-92 11879.59 1,378.64 500.95 75,640.45 74,332.40 15 1 - Nov-92 1,879.59 1,387.76 491.83 74,202.10 72,944.63 16 1 - Dec-92 1,879.59 1,396.94 492.65 72,755.35 71,547.69 17 1 - .Ian-93 1,879.59 1,406.18 473.41 71,300.16 70,141.51 18 1 - Feb-93 1,879.59 1,415.49 464.10 69,836.49 68,726.01 19 1 - Mar-93 1,879.59 1,424.85 454.74 68,364.27 67,301.16 20 1 - Apr-93 1,879.59 1,434.28 445.31 66,883.47 65,866.88 21 1 - May-93 1,879.59 1,443.77 435.82 65,394.03 64,423.10 2 1 - Jun-93 1,879.59 1,453.32 426.27 63,895.90 62,969.78 3 1 - Jul-93 1,879.59 1,462.94 416.65 62,389.04 61,506.84 24 1 - Aug-93 1,879.59 1,472.62 406.97 60,873.38 60,034.21 25 1 - Sep-93 1,879.59 1,482.36 397.23 59,348.88 58,551.85 26 1 - Oct-93 1,879.59 1,492.17 387.42 57,815.49 57,059.68 27 1 - Nov-93 1,879.59 1,502.05 377.54 56,273.15 55,557.62 28 1 - Dec-93 1.879.59 1,511.98 367.61 54,721.82 54,045.64 29 1 - Jan-94 1,879,59 1,521.99 357.60 53,161.44 52,523.65 30 1 - Feb-94 1,879.59 1,532.06 347.53 51,591.95 50,991.58 31 1 - Mar-94 1,879.59 1,542.20 337.39 50,013.31 49,449.38 1 - Apr-94 1,879.59 1,552.40 327.19 48,425.46 47,896.98 1 - May-94 1,879.59 1,562.67 316.92 46,828.35 46,334.30 34 1 - Jun-94 1,879.59 1,573.01 306.58 45,221.92 44,761.29 35 1 - Jul-94 1,879.59 1,583.42 296.17 43,606.12 43,177.87 36 1 - Aug-94 1.879.59 1,593.90 285.69 41,980.90 41,583.97 37 1 - Sep-94 1,879.59 1,604.44 275.15 40,346.20 39,979.52 38 1 - Oct-94 1,879.59 1,615.06 264.53 38,701.96 38,364.46 39 1 - Nov-94 1,879.59 1,625.75 253.84 37,048.12 36,738.71 40 1 - Dec-94 1,879.59 1,636.50 243.09 35,384.64 35,102.20 41 1 - Jan-95 1,879.59 1,647.33 232.26 33,711.46 33,454.87 42 1 - Feb-95 1,879.59 1,658.23 221.36 32,028.52 31,796.64 4:3 1 - Mar-95 1,879.59 1,669.20 210.39 30,335.76 30,127.43 44 1 - Apr-95 1,879.59 1,680.25 199.34 28,633.12 28,447.18 45 1 - May-95 1,879.59 1,691.36 188.23 26,920.56 26,755.82 4A 1 - Jun-95 1,879.59 1,702.56 177.03 25,198.00 25,053.25 4' 1 - Jul-95 1,879.59 1,713.82 165.77 23,465.40 23,339.43 48 1 - Aug-95 1,879.59 1,725.16 154.43 21,722.68 21,614.27 49 1 - Sep-95 1,879.59 1,736.58 143.01 19,969.81 19,877.68 50 1 - Oct-95 1,879.59 1,748.07 131.52 18,206.70 18,129.61 Si 1 - Nov-95 1,879.59 1,759.63 119.96 16,433.32 16,369.98 52 1 - Dec-95 1,879.59 1,771.28 108.31 14,649.58 14,598.69 53 1 - Jan-96 1,879.59 1,783.00 96.59 12,855.45 12,815.69 54 1 - Feb-96 1,879.59 1,794.79 84.80 11,050.84 11,020.90 55 1 - Mar-96 1,879.59 1,806.67 72.92 9,235.71 9,214.22 56 1 - Apr-96 1,879.59 1,818.62 60.97 7,410.00 7,395.60 57 1 - May-96 1,879.59 1,830.66 48.93 5,573.63 5,564.94 58 1 - Jun-96 1,879.59 1,842.77 ?6.82 3,726.55 3,722.16 59 1 - Jul-96 1,879.59 1,854.96 24.63 1,868.69 1,867.20 E.0 - 1 - Aug-96 1,879.59 1,867.20 12.39 0.00 (0.00) TOTAL 112,775.59 32,8'0.00 19,845.59 LESSEE: TOWN OF AVON BY: TITLE: T ~ 1 Y1<~i1 /7 EXHIBIT E Base Interest Rate: 7.94% U.S. Treasury Note Yield: 7.95% U.S. Treasury Note Index Percent: 99.87% Adjusted Base Interest Rate: Dated Date: August 1, 1991 Page _2_ of _2_ The Base Interest Rate can remain in effect only during the thirty (30) day period following the Dated Date of this Individual Payment Schedule provided the U.S. Treasury Note Yield does not increase significantly. In the event such thirty (30) day period expires or U.S. Treasury Note Yields increase significantly during that 30 day period, and all documents have not been returned in a form acceptable to the Lessor, then the Lessor reserves the right to adjust and determine a new Base Interest Rate (the "Adjusted Base Interest Rate"). The Adjusted Base Interest Rate shall be determined on the business day immediately preceding the receipt of the documents by the Lessor, by multiplying the U.S. Treasury Note Yield by the U.S. Treasury Note Index Percent. Such Adjusted Base Interest Rate shall be the applicable interest rate for the principal balance of the Equipment which is the subject of this Individual Payment Schedule and the Lessor and the lessee shall execute a revised Exhibit E to this Individual Payment Schedule to acknowledge such change. lessee: Town of Avon By: Title: Y Agreement No. 673 EXHHJ1T F ACCEPTANCE CERTIFICATE . The undersigned, as Lessee under the Master Municipal Lease and Option Agreement (the "Agreement') numbered 673, with Municipal Services Group, Inc. ("lessor"), acknowledges receipt in good condition of the Equipment described in the Agreement or in the applicable Individual Payment Schedule attached thereto this 9jh day of _~2,Rf q and certifies that Lessor has fully and satisfactorily performed all of its covenants and obligations required under the Agreement. Lessee confirms that it will commence payments in accordance with Article 6 of the Agreement or the provisions of the applicable Individual Payment Schedule. The undersigned officer of the Lessee hereby reaffirms in all respects the Certificate as to Arbitrage attached as Exhibit C to the Agreement, and represents that, to the best of his or her knowledge, information and belief, the expectations therein expressed were reasonable as of the Accrual Date on which they were trade, and are reasonable as of this date, and that there were, and are as of this date, no facts, estimates or circumstances other than those expressed therein that would materially affect the expectations expressed therein. LESSEE: Tow~n of Avon By: Titl A Agreement No. 673 INSURANCE COVERAGE REQUIRE1VI N S TO: MUNICIPAL SERVICES GROUP, INC. 165 S. Union Boulevard, Suite 160 Lakewood, Colorado 80228 FROM: Town of Avon P.O. Box 975 Avon, Colorado 81620 SUBJECT: INSURANCE COVERAGE REQUIREMENTS 1. In accordance with Section 8.03 of the Master Municipal Lease and Option Agreement No. 673, dated as of $ I ; f j i 19_, (the "Agreement"), we have instructed the insurance agent named below (please fill in name, address and telephone number) Or 7r,4,-r9(t't' :t-( n :~2tn r ir~,~~qC r,Cy (C W-15A) q 5C S. C hr r( to issue: a. All Risk Physical Damage Insurance on the leased Equipment of Unit thereof (as defined in the Agreement) evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming IA=or "and/or its assigns" Loss Payee b. Public Liability Insurance evidence by a Certificate of Insurance naming "Lessor and/or its assigns" as an Additional Insured. Minimum Coverage Required: $400,000.00 per person $400,000.00 aggregate bodily injury liability $150,000.00 property damage liability OR 2. Pursuant to Section 8.03 of the Agreement, we are self-insured for all risk, physical damage, and public liability and will provide proof of such self-insurance in letter form together with a copy of the statute authorizing this form of insurance. ~3. Proof of insurance coverage will be-provided to Lessor prior to the time that the Equipment or Unit thereof is delivered to us. Iessee:~` By: Tide: ~ ('•~_~~I'; ! 1~'/'P 7`/'`~~' 1~ J vii BANK ELIGIBIITIY CERTIFICATE THIS BANK ELIGIBILITY CERTIFICATE is entered into this 3 t F~ day of } 1991 and executed by Town of Avon, as lessee, supplementing and adding to Lease and Option Agreement No. 673. J WITNESSETH: WHEREAS, the Lessor and the Lessee have entered into a Municipal Lease and Option Agreement No. 673; and WHEREAS, the Lessee desires to supplement the Agreement; NOW THEREFORE, in consideration of the premises hereinafter contained, the Lessee hereby certifies that: The Lessee has not issued or effected the issuance of, and reasonably anticipates that it shall not issue or effect the issuance of more than Ten Million Dollars ($10,000,000.00) of tax-exempt obligations during the 1991 calendar year, and hereby designates the lease of the Equipment to which this certificate pertains as a "qualified tax-exempt obligation," as defined by Section 265 (b) (3) of the Internal Revenue Code of 1986, as amended. In witness whereof, the Lessee has caused this Supplement to the Agreement to be executed by its respective officers thereunto duly authorized, all as of the date and year first above written. Town of Avon . By: Name: i l 1 Title: viii SMALL ISSUER EXEMPTION CERTIFICATE THIS SMALL ISSUER EXEMPTION CERTIFICATE is entered into this day of 0'1 u] 1991 and executed by Town of Avon as lessee, supplementing and adding to Lease and Option Agreement No. 673. WITNESSETH: WHEREAS, the Lessor and the Lessee have entered into a Municipal Lease and Option Agreement No. 673; and WHEREAS, the Lessee desires to supplement the Agreement; NOW THEREFORE, in consideration of the premises hereinafter contained, the parties hereto agree to supplement the Agreement as follows: The lessee has not issued or effected the issuance of, and reasonably anticipates that it shall not issue or effect the issuance of, more than Five Million Dollars ($5,000,000.00) of tax-exempt bonds (other than private activity bonds) (such terms being within the meaning of Section 148 (f) (4) (C) of the Intemal Revenue Code of 1986, as amended), during the 1991 calendar year. In witness whereof, the Irssee has caused this Supplement to the Agreement to be executed by its respective officers thereunto duly authorized, all as of the date and year first above written. Town of Avon By: Name: ( u i I I I ) ag:- ~[Q tagl P Title: ~OIJ?f~ IN (1I117-L J ix Form 8038-GC Consolidated Information Return. forSmalLTax-Exempt ilernmental Bond Issues, Leases ; . Installment Sales 0M8 No. 1545-0720 (Rev. October 1989) 1► Under Section 149(a) 0- For calendar year ending 19 Expires 05/31/92 Department of the Treasury Internal Revenue Service (Use Form 8038-G if the issue price of the issue is $100,000 or more.) Reporting Authority Check box if Amended Return ► LI 1 Issuer's name 12 Issuer's employer identification number Town of Avon -7 7 1-. Y- 3 Numoerand street P.O. Box 975 4 City or town, state, and ZIP code Description of Obl ons 5 Total issue price of all small tax-exempt governmental obligations issued during the calendar year. . 6 Check the box that most nearly approximates the weighted average maturity of the obligations: a © Less than 5 years b ❑ From 5 to 10 years c ❑ More than 10 years 7 Check the box that most nearly approximates the weighted average interest rate on the obligations: a ❑ Less than 5% b N From 5% to 10% c ❑ More than 10% 8 Total issue price of the obligations reported online 5 that are: 5 a Obligations issued in the form of a lease or installment sale . . . . . . . . . . . . . . . [ 8a b Obligations designated by the issuer under section 265(b)(3)(8)(1)(III) . . . . . . . LS c Obligations issued to refund prior issues . . . . . . . . . . . . . . . . 8c d Loans made from the proceeds of another tax-exempt obligation . . 18d Please Sign Here $93,802100 93 , 8021 00 $93,802100 Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. / Signature of ~klI II 1'0.m I_: Ta-rne-5 ' 70 L,) n m cLIlc~G~~.►~ Type or pint name and title General Instructions (Section references are to the Intemal Revenue Code unless otherwise noted.) Paperwork Reduction Act Notice We ask for this information to carry out the Internal Revenue laws of the United States.. We need it to ensure that you are complying with these laws. You are required to give us this information. The time needed to complete and file this form varies depending on individual circumstances. The estimated average time is: Recordkeeping . . . . 3 hrs., 21 min. Learning about the law or the form . . . . .1 hr., 34 min. Preparing the form. . . 2 hrs.. 37 min. Copying, assembling, and sending the form to IRS . . . .16 min. If you have comments concerning the accuracy of this time estimate or suggestions for making this form more simple, we would be happy to hear from you. You can write to either the Internal Revenue Service, Washington, DC 20224, Attention: IRS Reports Clearance Officer, T:FP, or the Office of Management and Budget, Paperwork Reduction Project (1545-0720), Washington, DC 20503. Item You Should Note A governmental unit is required to file this form for all small tax-exempt govemmental obligations on which it pays interest. These obligations include bonds, leases and installment sales. Purpose of Form Form 8038-GC is to be used by issuers of tax-exempt governmental obligations to provide IRS with the information required by section 149(e) and to monitor the requirements of sections 141 through 150. Who Must File Each issuer must file Form 8038-GC for all tax-exempt governmental bonds, leases and installment sales issued during the calender year, with an issue price of less than $100,000. Form 8038-G is filed to report each issue of governmental obligations with issue prices of $100.000 or more. When To File File Form 8038-GC on or before February 15th after the close of the calendar year in which the issue is issued. Form 8038-GC must be completed based on the facts as of the close of the calendar year. Late filing.-A Form 8038-GC filed after the due date may be granted an extension of time to file under section 3 of Rev. Proc. 88-10, 1988-1 C. S. 635, if it is determined that the failure to file in a timely manner is not due to willful neglect. A late Form Farm 8038-GC (Rev. 10.89) Form 8038-GC (Rev. 10.89) -r 8038-GC should be sent to: Ir al Revenue Service, Philadelphia service Center, Statistics of Income Unit. P:DA: Unit F-S01, Philadelphia, PA 19255, Stop T335. Type or print at the top of the form, "This Statement Is Submitted in Accordance with Rev. Proc. 88-10." Attach to the Form 8038-G01 a letter briefly setting forth the reasons why Form 8038-GC was not submitted to the iRS on time, and also indicating whether the obligation in question is under examination by the IRS. Do not submit copies of any bond documents, leases or installment sale documents. Where To File File Form 8038-GC with the Internal Revenue Service Center. Philaceiphia, PA 19255. Definitions • A tax-exempt obligation is not limited to the formal issuance of bonds. It also includes installment purchase agreements and financial leases. • A tax-exempt governmental obligation is a tax-exempt obligation that is not a private activity bond. • A private activity bond is generally an_ obligation issued as part of an issue of which: (1) More than 10% of the proceeds are to be used for any private business use; and (2) More than 10% of the payment of principal or interest of the issue is either secured by an interest in property to be - used for a private business use (or payments in respect of such property), or is to be derived from payments in respect of property (or borrowed money) used for a private business use. An obligation is also considered a private activity bond if the amount of the proceeds to be used to make or finance loans (other than loans described in section 141(c)(2)) to certain persons exceeds the lesser of 5% of the proceeds, or $5,000.000. Private activity bonds should be reported on Form 8038, Information Return for Tax-Exempt Private Activity Bond Issues. • Issue -Generally, separate obligations should not be treated as part of the same issue if the obligations are not issued by the "-'Paste e- same issuer, on the same date, an pursuant to a single transaction (or series of related transactions). With respect to draw-down loans, all amounts reasonably expected to be advanced within 3 years of the date of the first draw may be treated as part of the same issue if the draws are equally and ratably secured by the same loan agreement and are pursuant to a common financing arrangement. All obligations that are issued pursuant to a single finance lease or installment purchase agreement may be treated as part of the same issue if all of the property covered by that agreement is reasonably expected to be delivered within 3 years of the date of issue of the first obligation. Specific Instructions Part I.-Reporting Authority Amended Return.-If you are filing an amended Form 8038-GC, check the amended return box and complete Part I and only those parts of Form 8038-GC you are amending by entering the correct_ information. Do not file an amended orm 8038-GC to amend estimated amounts you previously reported once the actual amounts are determined. (See the Part II instruction, below.) Line 1.-The issuer's name is the name of the entity issuing the obligations, not the name of the entity receiving the benefit of the financing. In the case of a lease or installment sale, the issuer is the lessee or purchaser. Line 2-Issuer's employer identification number (EIN).-If the issuer does not have an employer identification number, enter "none" and attach a completed Form SS-4, Application for Employer Identification Number, to Form 8038-GC. If, however, the issuer has previously applied for such a number, attach a statement giving the date of the application and the office where it was submitted. Part II.-Description of Obligations This part may be completed based on information readily available to the issuer at the close of the calendar year, supplemented by estimates made in good faith. All entries may be based on good faith approximations. Line 5.-Enter the total issue price of all small tax-exempt governmental obligations issued during the calendar year. Small govemmental obligations means those with an issue price of less than $100,000. If the obligations are reoffered to the public by an intermediary, the issue price is the reoffering price (excluding accrued interest). The issue price of an obligation means the principal amount due on the obligation and does not include interest paid or to be paid. Therefore line 5 should include only the principal amount due on obligations sold during the calendar year. For example, only the purchase price of an asset acquired pursuant to a lease should be included on Line 5 and only in the year such lease is entered into. A lease or installment sale is treated as issued on the date interest starts to accrue. Line b.-The weighted average maturity is the average maturity on the obligations. With respect to bonds, each bond should be weighted to its par value. For a lease or installment sale, enter the total number of years the lease or installment sale will be outstanding. Line 7.- The weighted average interest rate is the average interest rate on the obligations. Each bond should be weighted in proportion to its par value and its length of maturity. Line 8.-Enter the total issue price of the obligations reported on line 5 that are described an lines 8a, 8b, 8c, and 8d. More than one line may apply to a particular obligation. For example, obligations issued to refund prior issues which were designated by the issuer under section 265(b)(3)(B)(i)(III) should be reported on line 8b and line 8c. Signature Form 8038-GC must be signed by an authorized representative of the issuer. Also print the name and title of the person signing the Form 8038-GC. -U.S. Go-mint Printing Office, 1989-261-131100020 Form 8038-GC (Rev. October 1989) Department of the Treasury Internal Revenue Service Reportin 1 Issuer's name Town of Avon Consolidated Information Return for Small Tax-Exempt vernmental Bond Issues, Leases, 'Installment Sales 0M8 No. 1545-0720 ► Under Section 149(e) ► For calendar year ending 19 Expires 05/31/92 (Use Form 8038-G if the issue price of the issue is $100,000 or more.) Authority Check box if Amended Return ► 1 2 issuer's empioyer identification number 3 Number and street P.O. Box 975 4 City or town, state, and ZIP code Descri In of Obligations 5 Total issue price of all small tax-exempt governmental obligations issued during the calendar year . . . 6 Check the box that most nearlyy approximates the weighted average maturity of the obligations: a Less than 5 years b ❑ From 5 to 10 years c ❑ More than 10 years 7 Check the box that most nearly approximates the weighted average interest rate on the obligations: a ❑ Less than 5% b From 5% to 10% c ❑ More than 10% 8 Total issue price of the obligations reported online 5 that are: 5 a Obligations issued in the form of a lease or installment sale . . . . . . ~8a b Obligations designated by the issuer under section 265(b)(3)(8)(1)(III) . . . . . 8b c Obligations issued to refund prior issues . . . . . . . . . . . . . . . . . . . 1 8c d Loans made from the proceeds of another tax-exempt obligation 8d Please Sign Here 93 , 8021 00 $93,802100 $93,802100 Under penalties of perjury. I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. Signature of officer ~l(I (iQ rr1 U. JU.rytQi Type or print name and title General Instructions If you have comments concerning the Who Must File (Section references are to the /ntemal accuracy of this time estimate or suggestions for making this form more Each issuer must file Form 8038-GC for all Revenue Code unless otherwise noted.) we would be happy to hear from simple be tax-exempt governmental bonds. leases and Paperwork Reduction Act Notice , you. You can write either the Internal I nternal installment sales issued during the calender with an issue price of less than year We ask for this information to carry out the Revenue Service, Washington, DC 210224, Attention: IRS Reports Clearance Officer, , $100 .000. Form 8038 G is filed to report Internal Revenue laws of the United States.. T:FP; or the Office of Management and each issue of governmental obligations with issue prices of $100 000 or more. We need it to ensure that you are complying Budget, Paperwork Reduction Project , with these laws. You are required to give us (1545-0720), Washington, OC 20503. When To File this information. The time needed to complete and file this Item You Should Note File Form 8038-GC on or before February form varies depending on individual A governmental unit is required to file this 15th after the close of the calendar year in circumstances. The estimated average time form for all small tax-exempt governmental which the issue is issued. Form 8038-GC is: obligations on which it pays interest. These must be completed based on the facts as of obligations include bonds, leases and the close of the calendar year. Recordkeeping . . . . 3 hrs.. 21 min. installment sales. Late filing.-A Form 8038-GC filed after Learning about the Purpose of Form the due date may be granted an extension law or the form . . . . .1 hr.. 34 min. Form 8038-GC is to be used by issuers of of time to file under section 3 of Rev. Proc. . Preparing the form . . . 2 hrs.. 37 min, tax-exempt governmental obligations to 88.10, 1988-1 C.B. 635. if it is determined file in a timely manner is that the e Copying, assembling' and sending the form to IRS 16 min. provide IRS with the information required by section 149(e) and to monitor the d willful not due to o will neglect. A late Form requirements of sections 141 through 150. Form 8038-GC (Rev. 10.89) SS' . Form 8038-GC (Rev. 1.0.89) Page 2 8038-GC should be sent to: Internal Revenue Service, Philadelphia Service Center, Statistics of Income Unit. P:DA: Unit F-SO1, Philadelpnia, PA 19255, Stop X335. Type or print at the top of the form, "This Statement Is Submitted in Accordance with Rev. Proc. 88-10." Attach to the Form 8038-GC a letter briefly setting forth the reasons why Form 8038-GC was not submitted to the IRS on time, and also indicating whether the obligation in question is under examination by the IRS. Do not submit copies of any bond documents, leases or installment sale documents. Where To File File Form 8038-GC with the Internal Revenue Service Center. Philadelphia, PA 19255. Definitions • A tax-exempt obligation is not limited to the formal issuance of bonds. It also includes installment purchase agreements and financial leases. e A tax-exempt governmental obligation is a tax-exempt obligation that is not a private activity bond. • A private activity bond is generally an obligation issued as part of an issue of which: (1) More than 10% of the proceeds are to be used for any private business use; and (2) More than 10% of the payment of principal or interest of the issue is either secured by an interest in property to be used for a private business use (or payments in respect of such property), or is to be derived from payments in respect of property (or borrowed money) used for a. private business use. An obligation is also considered a private activity bond if the amount of the proceeds to be used to make or finance loans (other than loans described in section 141(c)(2)) to certain persons exceeds the lesser of 5% of the proceeds, or $5,000,000. Private activity bonds should be reported on Form 8038, Information Return for Tax-Exempt Private Activity Bond Issues. • Issue -Generally, separate obligations should not be treatea as part of the same issue if the obligations are not issued by the same issuer, on the same date, and pursuant to a single transaction (or series of related transactions). With respect to draw-down loans, all amounts reasonably expected to be advanced within 3 years of the date of the first draw may be treated as part of the same issue if the draws are equally and ratably secured by the same loan agreement and are pursuant to a common financing arrangement. All obligations that are issued pursuant to a single finance lease or installment purchase agreement may be treated as part of the same issue if ail of the property covered by that agreement is reasonably expected to be delivered within 3 years of the date of issue of the first obligation. Specific Instructions Part I.-Reporting Authority Amended Return.-If you are filing an amended Form 8038-GC, check the amended return box and complete Part I and only those parts of Form 8038-GC you are amending by entering the correct information. Do not file an amended Form 8038-GC to amend estimated amounts you previously reported once the actual amounts are determined. (See the Part 11 instruction, below.) Line 1.-The issuer's name is the name of the entity issuing the obligations, not the name of the entity receiving the benefit of the financing. In the case of a lease or installment sale, the issuer is the lessee or purchaser. Line 2-Issuer's employer identification number (EIN).-If the issuer does not have an employer identification number, enter "none" and attach a completed Form SS-4, Application for Employer Identification Number, to Form 8038-GC. If, however, the issuer has previously applied for such a number, attach a statement givingthe date of the application and the office where it was submitted. Part I1.-Description of Obligations This part may be completed based on information readily available to the issuer at the close of the calendar year, supplemented by estimates made in good faith. All entries may be based on good faith approximations. Line 5.-Enter the total issue price of all small tax-exempt governmental obligations issued during the calendar year. Small governmental obligations means those with an issue price of less than $100,000. If the obligations are reoffered to the public by an intermediary, the issue price is the reoffering price (excluding accrued interest). T he issue price of an obligation means the principal amount due on the obligation and does not include interest paid or to be paid. Therefore line 5 should include only the principal amount due on obligations sold during the calendar year. For example, only the purchase price of an asset acquired pursuant to a lease should be included on Line 5 and only in the year such lease is entered into. A lease or installment sale is treated as issued on the date interest starts to accrue. Line b.-The weighted average maturity is the average maturity on the obligations. With respect to bonds, each bond should be weighted to its par value. For a lease or installment sale, enter the total number of years the lease or installment sale will be outstanding. Line 7.- The weighted average interest rate is the average interest rate on the obligations. Each bond should be weighted in proportion to its par value and its length of maturity. Line 8.-Enter the total issue price of the obligations reported on line 5 that are described on lines 8a, 8b, 8c, and 8d. More than one line may apply to a particular obligation. For example, obligations issued to refund prior issues which were designated by the issuer under section 265(b)(3)(8)(i)(III) should be reported on line 8b and line 8c. Signature Form 8038-GC must be signed by an authorized representative of the issuer. Also print the name and title of the person signing the Form 8038-GC. o U.S. Government Printing Officer :989-261-151/00020 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 13TH DAY OF AUGUST, 1991, AT THE TOWN HALL FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 91-13, SERIES OF 1991: AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT 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 24th day of July, 1991. BY Patricia Doyle Town Cle POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 24, 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 LOBBY