TC Res. No. 1997-60TOWN OF AVON, COLORADO
_ 60
RESOLUTION APPROVING THE ISSUANCE BY
EAGLEBEND AFFORDABLE HOUSING CORPORATION OF
MULTIFAMILY HOUSING PROJECT REVENUE
REFUNDING BONDS, SERIES 1997, IN AN AGGREGATE
PRINCIPAL AMOUNT NOT TO EXCEED $22,860,000;
AUTHORIZING AN AMENDED AND RESTATED PROJECT
AGREEMENT; AND AUTHORIZING INCIDENTAL ACTION.
WHEREAS, EagleBend Affordable Housing Corporation (the "Corporation") has
been duly organized under the provisions of the Colorado Nonprofit Corporation Act, Articles 20
through 29 of Title 7, Colorado Revised Statutes, as amended, for the purpose of acquiring
interests in real property and to construct, install and operate certain improvements in the Town
of Avon (the "Town"); and
WHEREAS, the Corporation has previously issued its Revenue Bonds, Series
1990A in the aggregate principal amount of $6,506,240 (the "Series 1990A Bonds"), its Revenue
Bonds, Series 1990B in the aggregate principal amount of $8,984,000 (the "Series 1990B
Bonds"), and its Multifamily Housing Project Revenue Bonds, Series 1995C in the aggregate
principal amount of $6,330,000 (the "Series 1995C Bonds") to acquire and construct real and
personal property, buildings and improvements, to provide dwelling accommodations at rentals
within the means of individuals or families of low or moderate income (the "Project"), to be
known as the EagleBend Affordable Housing Project; and
WHEREAS, in order to refund and redeem the Series 1990A, the Series 1990B
and the Series 1995C Bonds (together, the "Prior Bonds"), the Corporation intends to enter into a
Trust Indenture dated as of November 1, 1997 (the "Indenture") and to issue its Multifamily
Housing Project Revenue Refunding Bonds, Series 1997A, in an aggregate principal amount not
to exceed $21,260,000, its Multifamily Housing Project Subordinate Revenue Refunding Bonds,
Series 1997B, in an aggregate principal amount not to exceed $1,300,000, and its Multifamily
Housing Project Subordinate Revenue Refunding Bonds, Series 1997C, in an aggregate principal
amount not to exceed $300,000 (collectively, the "Series 1997 Bonds"); and
WHEREAS, in order to assure that responsibility for operation of the Project is
vested in the Corporation, the Town and the Corporation propose to execute and deliver an
Amended and Restated Project Agreement dated as of November 1, 1997 (the "Project
Agreement"), under the terms of which the Corporation is responsible to operate the Project, and
title to the Project shall vest in the Town upon the end of the term of the Project Agreement; and
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WHEREAS, proposed forms of the Indenture (including the forms of the Series
1997 Bonds contained therein) and the Project Agreement have been presented before the Town
Council (the "Council") at this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO, AS FOLLOWS:
1. Approval of the Project Agreement. The terms of the proposed Project
Agreement in substantially the form presented at this meeting are hereby approved.
2. Issuance of the Series 1997 Bonds. The Series 1997 Bonds and the
issuance thereof by the Corporation for the purpose of refunding and redeeming the Prior Bonds
are, in all respects, hereby approved. The Series 1997 Bonds shall be issued solely as fully
registered bonds without coupons in the denominations as provided in the Indenture. The Series
1997 Bonds shall bear interest payable at the rates and times and will mature in the amounts and
on the dates set forth in the Indenture, as finally executed.
The Series 1997 Bonds shall be issued and secured as set forth in the Indenture,
and the forms, terms and provisions of the Series 1997 Bonds and the provisions for their
execution, authentication, payment, registration, transfer, exchange, redemption and number
shall be as set forth in the Indenture.
3. Town Action. The Mayor of the Town and the Town Clerk are hereby
authorized and directed to execute and deliver such documents and to take all action necessary or
reasonably required by the terms of the Project Agreement to carry out, give effect to and
consummate the transactions contemplated hereby and thereby, including the execution and
delivery of the Project Agreement in substantially the form presented at this meeting, with such
variations or revisions thereto deemed necessary by the Mayor. Execution of the Project
Agreement by the Mayor shall be deemed to be final approval by the Town of the issuance of the
Series 1997 Bonds and all the provisions contained in the Project Agreement.
4. No Indebtedness of the Town. No provision of this Resolution or of
the Project Agreement, the Indenture, the Series 1997 Bonds or any other instrument
executed in connection therewith, shall be construed as creating an obligation on the part
of the Town to pay the principal of, premium, if any, or interest on the Series 1997 Bonds,
nor as creating an indebtedness or financial obligation on the part of the Town within the
provisions or limitations of any statutory or constitutional provision of the laws of the State
of Colorado or any provision of the home rule charter of the Town.
5. Title to Project. The Town hereby determines that it will accept title to the
Project, including any additions thereto, when all the Series 1997 Bonds are fully paid and
discharged.
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6. Severability. If any provision of this Resolution should be held invalid,
the invalidity of such provision shall not affect any of the other provisions of this Resolution, the
intention being that the various provision's hereof are severable.
7. Other Actions. The appropriate officers of the Town are hereby
authorized to execute and deliver for and on behalf of the Town, any or all additional certificates,
documents and other papers and to perform all other acts they may deem necessary or
appropriate in order to implement and carry out the matters authorized in this Resolution-and in
any resolution of the Corporation.
8. Effective Date; Repealer. This Resolution shall take effect immediately
upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in -conflict
with this Resolution are hereby repealed or modified to the extent of such conflict.
ADOPTED AND APPROVED this 11th day of November, 1997.
TOWN OF AVON, COLORADO
[SEAL]
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B
IL/
ayor
The motion to adopt the foregoing Resolution was duly' seconded by Council
Member Benson , put to a vote and carried upon the following vote:
Those voting YES:
Councilor Benson, Councilor Carnes, Councilor McIlveen,
and Councilor Buz Reynolds, Jr.
Those not voting: Acting Mayor Albert'Reynolds,Sr.
Those absent:
Mayor Jack Fawcett & Mayor Protem Judy Yoder
Thereupon the Mayor declared the motion had carried and the Resolution duly
passed and adopted. After consideration of other business to come before the Council, the
meeting was adjourned.
[SEAL]
Mayor
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.1~
STATE OF COLORADO )
COUNTY OF EAGLE ) ss.
TOWN OF AVON )
I, Patty Lambert , the duly appointed, qualified and acting Town Clerk of
the Town of Avon, Colorado, do hereby certify that the foregoing pages numbered 1 through 5,
inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of
Avon, Colorado, adopted at a regular meeting of the Council held at the regular meeting place
thereof in Avon, Colorado, on Tuesday, the 11th day of November, 1997, commencing at the
hour of 5 : 31%., as recorded in the official Record of the Proceedings of the Town kept in my
office, insofar as said proceedings relate to the Resolution contained therein; that said
proceedings were duly had and taken; that the meeting was duly held; and that the persons were
present at said meeting as therein shown.
WITNESS my hand and sell-as*f- its 12thday of November, 1997.
.4
SEAL
PiR"i
Town Clerk l NNI
Town of Avon, Colorado
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STATE OF COLORADO )
COUNTY OF EAGLE ss.
TOWN OF AVON )
The Town Council of the Town of Avon, Colorado, met in regular session at the
Town Hall in Avon, Colorado, on Tuesday, the l lth day of November, 1997, at the hour of
5 :3-1p .m.
The following members of the Council were present:
Jim Benson
Richard Carnes
Bob 14cIlveen
Albert J. Reynolds, Sr.
Buz.Reynolds, Jr.
The following members were absent:
Jack Fawcett
Judy Yoder
The following persons were also present:
Staff members, press and public.
Thereupon, Council Member Reynolds, Jr. introduced and moved the
adoption of the following Resolution, which was read by title, copies thereofhaving been made
available to the Council'and the public prior thereto:
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EAGLEBEND AFFORDABLE HOUSING PROJECT
AMENDED AND RESTATED PROJECT AGREEMENT
THIS AMENDED AND RESTATED PROJECT AGREEMENT (the
"Agreement") is made as of November 1, 1997, by and between EAGLEBEND AFFORDABLE
HOUSING CORPORATION, a Colorado nonprofit corporation (the "Corporation") and the
TOWN OF AVON, COLORADO (the "Town"). This Agreement amends and restates the
EagleBend Affordable Housing Project Operations Agreement between the Corporation and the
Town dated as of October 1, 1990, as amended by an,Amendment to EagleBend Affordable
Housing Project Operations Agreement dated December 1, 1,990, and a Second Amendment to
EagleBend Affordable Housing Project Operations Agreement dated as of December 1, 1994
(together; the "Operations Agreement").
RECITALS:
A. The Corporation has been organized under the Colorado Nonprofit
Corporations Act to acquire property in order to provide affordable housing facilities, for the
benefit and on behalf of the Town and its inhabitants.
B. The Corporation shall issue its EagleBend Affordable Housing
Corporation Multifamily Housing Project Revenue Refunding Bonds, Series 1997 (the "Series
1997 Bonds") in an aggregate principal amount not to exceed $22,860,000 for the purpose of
refunding and redeeming the Corporation's Revenue Bonds, Series 1990A, Revenue Bonds,
Series 1990B, and Multifamily Housing Project Revenue Bonds, Series 1995C (collectively, the
"Refunded Bonds"). The Refunded Bonds were issued for the purpose of acquiring -and
constructing real and personal property to be operated by the Corporation and known as the
"EagleBend Affordable Housing Project" (the "Project"), located on the property described in
Exhibit A hereto, to provide dwelling accommodations at rentals within the means of individuals
or families of low or moderate income, as determined 'by the Board of Directors of the
Corporation from time to time.
C. The Series 1997 Bonds shall be issued pursuant to the Trust Indenture
dated as of November 1, 1997 (the "Indenture") between the Corporation and U.S. Bank
National Association, d/b/a Colorado National Bank, as Trustee (the "Trustee"). The Series
1997 Bonds and any Additional Bonds issued under the Indenture are referred to hereinafter as
the "Bonds."
D. The Operations Agreement was recorded in the office of the Eagle County
Clerk and Recorder on November 19, 1990 in Book 542 at Page 550, on April 5, 1991 in Book
551 at Page 197, and on January 10, 1995 in Book 658 at Page 941.
All capitalized terms used herein, unless otherwise defined, shall have the
meanings ascribed thereto in the Indenture.
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TERMS
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Town and the Corporation, on behalf of themselves and their
respective successors and assigns, agree as follows:
Section 1. Project Operation . The Corporation hereby covenants and agrees
to operate the Project at standards required to provide decent, safe, and sanitary housing facilities
at reasonable rental rates, in a sound and economical manner, as provided in the Indenture.
Nothing herein or in any resolutions of the Town shall be interpreted to require the Town to
undertake responsibility for operation of the Project. The Corporation shall indemnify and hold
harmless the Town, its officers, agents and employees and members of its Town Council with
respect to any liability or damages arising under actions or claims against the Town as a result of
the operation of the Project by the Corporation.
Section 2. Town Benefit. The Corporation covenants and agrees that all
activities of the Corporation shall be undertaken for the benefit of the Town. Upon termination
of this Agreement, the Town shall be entitled to acquire title to the Project without cost, as
provided in the Indenture.
Section, 3. Right to Acquire. As further provided in Section 14.02 of the
Indenture, the Town is hereby granted the right to obtain, at any time, fee title and exclusive
possession of property (including the Project) financed by obligations of the Corporation
(including the Bonds) free from liens and encumbrances created by the Corporation related to the
Bonds (but subject to other Permitted Encumbrances, as defined in the Indenture), and any
additions to such property, by (1) placing into escrow an amount that will be sufficient to defease
such Bonds and other obligations, (2) paying reasonable costs incident to the defeasance, and
(3) complying with all other requirements of Article XIV of the Indenture. The Town, at any
time before it defeases such obligations, shall not agree or otherwise be obligated to convey any
interest in such property to any person (including the United States of America or its agencies or
instrumentalities) for any period extending beyond or beginning after the Town defeases such
obligations. In addition, the Town shall not agree or otherwise be obligated to convey a fee
interest in such property to any person who was a user thereof (or a related person), before the
defeasance within 90 days after the Town defeases such obligations.
Section 4. Unencumbered Title. If the Town exercises its option under
Section 3, the Corporation shall immediately cancel all encumbrances on such property,
including all leases and management agreements (subject to certain Permitted Encumbrances as
aforesaid). Any lease, management contract, or similar encumbrance on such property will be
considered immediately cancelled if the lessee, management company, or other user vacates such
property within a reasonable time, not to exceed 90 days, after the date the Town exercises its
rights under Section 3.
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Section 5. Default Rights. Upon the occurrence of an "Event of Default" as
defined in Section 10.01 of the Indenture, the Corporation shall cause the Trustee, within five
days of such occurrence, to provide notice to the Town, and the Town shall have the option to
cure such Event of Default within 90 days after receipt of such notice. As provided in
Section 10.02 of the Indenture, amounts advanced by the Town as a result of the exercise of this
option to cure monetary defaults hereunder and reasonable, direct expenses of the Town
advanced to cure nonmonetary defaults hereunder shall be deemed to be Indebtedness of the
Corporation to the Town.
In addition to the foregoing and consistent with Article XIV of the Indenture, if
pursuant to Article X of the Indenture, the Trustee declares the principal of any Bonds then
outstanding to be due and payable and any foreclosure proceeding or other action is commenced
under the Indenture or the Deeds of Trust, as defined in the Indenture, which could lead to the
sale or other disposition of the property pledged thereunder, the Town is hereby granted an
exclusive option to purchase all such property (including the Project), for the amount of the
outstanding Bonds and other indebtedness of the Corporation and accrued interest to the date of
default.. The Town shall have not less than 90 days from the date it is, notified by the Trustee of
such action in which to both exercise the option and purchase the property. Nothing herein shall
be construed to create any obligation of the Town to cure any Event of Default.
Section 6. Funds in Indenture. As required under Section 14.02 of the
Indenture, in the event the Town exercises its options under Section 3 or 5 hereof, the Town shall
receive a credit towards its defeasance or purchase costs in the amount of any fund or account
balances held under the Indenture with the exception of (1) the Excess Investment Earnings
Fund, as defined in the Indenture, (2) an amount representing Operation and Maintenance
Expenses, as defined in the Indenture, required by the Corporation's current operating budget
through the date of defeasance or purchase, and (3) any amount needed to pay additional interest
on the Bonds or expenses in connection with such defeasance under Section 14.01 of the
indenture.
Section 7. Title. Unencumbered fee title (subject to certain Permitted
Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession
and use thereof will vest in the Town without demand or further action on its part when all
obligations issued under the Indenture (including the Bonds) are discharged. For purposes of this
Section 7, such obligations will be discharged when (a) cash is available at the place of payment
on the date that the obligations are due (whether at maturity or upon call for redemption) and
(b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the
Indenture. All leases, management contracts and similar encumbrances on the Project shall
terminate upon discharge of said obligations. Encumbrances that do not significantly interfere
with the enjoyment of such property, such as the Permitted Encumbrances, are not considered
encumbrances for purposes of this Section.
Section 8. Indenture Rights: Approval of Town. The Corporation hereby
covenants and agrees that the provisions of the Indenture granting any rights to the Town shall
not be amended or modified without the consent of the Town. By execution hereof, the Town
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hereby consents to the provisions of the Indenture relating to the rights of the Town and confirms
its approval of the issuance of the Series 1997 Bonds.
Section 9. Tenn . This Agreement shall terminate upon the vesting of title to
the Project in the Town as herein provided.
Section 10. Burden on Property. This Agreement is a burden upon and runs
with the property described in Ezhibit A hereto and is binding upon the Corporation and upon
all persons or entities with any right, title or interest to such property or any part thereof. This
Agreement may be released therefrom in the same manner as the release of property under the
Deeds of Trust executed in connection with the issuance of the Bonds.
Section 11. Construction. In the event of any conflict between the terms and
provisions of this Agreement and the terms and provisions of the Indenture, the terms and
provisions of the Indenture shall govern.
IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the
day and year first mentioned above.
TOWN OF AVON, COLORADO
By:
May r
EAGLEBEND AFFORDABLE HOUSING
CORPORATION
By:
President
[SEAL]
[SEAL]
ATTEST:
Secretary
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STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DEMVER )
The foregoing instrument was acknowledged before, me this day of
November, 1997 by Gerald E. Flynn, as President, on behalf of EAGLEBEND AFFORDABLE
HOUSING CORPORATION; a Colorado nonprofit corporation.
WITNESS my hand and official seal.
My Commission expires:
[SEAL]
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
Notary Public
The fo 3going instrument was acknowledged before me this 3 r day of
November, 1997 by ~j W~tt-, as Mayor, on behalf of the TOWN OF AVON,
COLORADO.
WITNESS my hand and official seal.
td~Ca~oa®~i01
My Commission expires:
[SEAL]
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Public
EXHIBIT A
The following real property and all buildings and improvements, and fixtures or .
appurtenances, now 'or hereafter erected thereon:
LOT 2 AND TRACT A, REPLAT NUMBER 1, FINAL PLAT OF
EAGLEBEND SUBDIVISION, FILING NO. 4, ACCORDING TO
THE PLAT RECORDED JULY 17, 1992 IN BOOK 584 AT
PAGE 995, COUNTY OF EAGLE, STATE OF COLORADO.
Parcel 2
LOT 1; RIVERSIDE SUBDIVISION, TOWN OF AVON,
ACCORDING TO THE FINAL PLAT RECORDED
SEPTEMBER 1, 1989 ON BOOK 512 AT PAGE 802, COUNTY
OF EAGLE, STATE OF COLORADO.
A-1
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TOWN OF AVON, COLORADO
GENERAL AND NO-LITIGATION CERTIFICATE
This General and No-Litigation Certificate is delivered by the Town of Avon,
Colorado (the "Town") in connection with the issuance by EagleBend Affordable Housing
Corporation (the "Corporation") of $22,360,000 aggregate principal amount of its Multifamily
Housing Project Revenue Refunding Bonds, Series 1997 (the 'Bonds"), pursuant to the terms of
a Trust Indenture dated as of November 1, 1997 (the "Indenture") between the Corporation and
U.S. Bank National Association, d/b/a Colorado National Bank, as Trustee (the "Trustee"). The
proceeds of the Bonds will be used to refinance the costs of a 294-unit apartment project known
as the "EagleBend Apartments" and related facilities (the "Project").
All initially-capitalized terms used in this Certificate and not otherwise defined
herein shall have the meanings given such terms in the Indenture.
WE, THE UNDERSIGNED OFFICIALS OF THE TOWN, HEREBY CERTIFY
THAT:
1. The Town is a political subdivision of the State of Colorado with full
power and authority to execute and deliver the Project Agreement, to perform its obligations
thereunder and to carry out the transactions contemplated thereby to be carried out by it and has
taken all proceedings and obtained all approvals required in connection therewith by applicable
law.
2. Attached as Exhibit A hereto is a true, correct and complete copy of a
Resolution finally approved by the Town on November 11, 1997, approving the Project
Agreement between the Town and the Corporation and the issuance of the Bonds by the
Corporation. Said Resolution was duly adopted by a majority of the members of the Town
Council of the Town in accordance with Colorado law at a duly noticed regular public meeting of
the Town Council, the convening of such meeting and the adoption of such -Resolution being in
accordance with all requirements of law, the Home Rule Charter of the Town and procedural
rules of the Town Council. Such Resolution has not been repealed, amended or modified since
its adoption and is in full force and effect on the date hereof.
3. The Town has authorized, by all necessary official action, the execution,
delivery, and due performance of the Project Agreement and any and all such other agreements
and documents as may be required to be executed, delivered and received by the Town in order
to carry out, give effect to and consummate the transactions contemplated by the Project
Agreement. The Project Agreement-was duly executed and delivered on behalf of the Town by
Jack Fawcett , as Mayor and attested on behalf of the Town by Patty Lambert, as
Clerk; the signatures of said officers thereon are their respective genuine signatures; and the seal
thereunto affixed is the official seal of the Town.
4. To the best of the knowledge of the undersigned officers, there is no
action, suit, proceeding or investigation at law or in equity, before or by any court or any federal,
state or local governmental authority, or agency, pending or, to. the knowledge of the Town,
threatened against the Town (a) wherein an unfavorable decision, finding or ruling would contest
or adversely affect the Corporation, the Project, the enforceability of or the authority or ability of
the Town to perform its obligations under the Project Agreement or the existence or powers of
the Town or its governing body or officials, or (b) to contest, restrain or enjoin the issuance or
sale of the Bonds, the adoption of the Town Resolution approving the Bonds, the execution and
delivery of the Project Agreement or compliance by the Town with the provisions thereof
5. The Corporation has no taxing power. The Corporation does not receive
any support from any Town fund, and the Town expects the Corporation to continue operating as
a business on a self-supporting basis and without reliance on grants or subsidies from the Town,
the State of Colorado or other local governments, whether in the form of cash, services,
construction, repair or maintenance of Corporation assets, or any other thing of value.
IN WITNESS WHEREOF, we hereunto set our respective signatures as such
officials of the Town and have affixed the seal of the Town as of the 20th day of November,
1997.
[SEAL]
Attest:
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TOWN OF AVON, COLORADO
By 1&~
ayor