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TC Ord. No. 2014-14 Participation For Street And Road ImprovementsTOWN OF AVON, COLORADO ORDINANCE NO. 14 -14 SERIES OF 2014 AN ORDINANCE AUTHORIZING THE FINANCING OF CERTAIN PUBLIC IMPROVEMENTS OF THE TOWN, AND IN CONNECTION THEREWITH AUTHORIZING THE LEASING OF CERTAIN TOWN PROPERTY AND THE EXECUTION AND DELIVERY BY THE TOWN OF A SITE LEASE FOR SUCH PROPERTY, A LEASE PURCHASE AGREEMENT, AND OTHER DOCUMENTS RELATED TO THE FINANCING, AUTHORIZING THE EXECUTION AND DELIVERY BY THE TOWN OF OTHER DOCUMENTS RELATED TO CERTAIN CERTIFICATES OF PARTICIPATION, SERIES 201411; SETTING FORTH CERTAIN PARAMETERS AND RESTRICTIONS WITH RESPECT TO THE FINANCING; AUTHORIZING OFFICIALS OF THE TOWN TO TAKE ALL ACTION NECESSARY TO CARRY OUT THE TRANSACTIONS CONTEMPLATED HEREBY; RATIFYING ACTIONS PREVIOUSLY TAKEN; AND PROVIDING OTHER MATTERS RELATED THERETO. WHEREAS, the Town of Avon, Eagle County, Colorado (the "Town ") is a duly organized and existing home rule municipality of the State of Colorado, created and operating pursuant to Article XX of the Constitution of the State of Colorado and the home rule charter of the Town (the "Charter "); and WHEREAS, pursuant to Chapter XIV of the Charter, the Town is authorized to enter into one or more leases or lease - purchase agreements for land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, the Town is authorized by Article XX, Section 6 of the Colorado Constitution, its Charter, and part 8 of Article 15 of title 31, Colorado Revised' Statutes ( "C.R.S. "), to enter into rental or leasehold agreements in order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, for the functions or operation of the Town, it is necessary that the Town finance the acquisition, construction, and equipping of various street improvements, all for Town purposes, and as authorized by law (the "Project "); and WHEREAS, the Town Council of the Town (the "Town Council ") has determined that it is in the best interests of the Town and its inhabitants to execute a lease purchase agreement to finance the Project (the "Lease "); and WHEREAS, the Town owns, in fee title, certain Sites and the premises, buildings and improvements located thereon (the "Leased Property "), as further described in the Site Lease and the Lease (hereinafter defined); and 1 WHEREAS, the Town Council has determined, and now hereby determines, that it is in the best interest of the Town and its inhabitants that the Town lease the Leased Property to UMB Bank, n.a., as trustee (the "Trustee ") under an Indenture of Trust (as hereinafter defined) pursuant to a Site Lease between the Town, as lessor, and the Trustee, as lessee (the "Site Lease "), and lease back the Trustee's interest in the Leased Property pursuant to the terms of a Lease Agreement (the "Lease ") between the Trustee, as lessor, and the Town, as lessee; and WHEREAS, pursuant to the Lease, and subject to the right of the Town to terminate the Lease and other limitations as therein provided, the Town will pay certain Base Rentals and Additional Rentals (as such terms are defined in the Lease) in consideration for the right of the Town to use the Leased Property; and ' WHEREAS, the Town's obligation under the Lease to pay Base Rentals and Additional Rentals shall be from year to year only; shall constitute currently budgeted expenditures of the Town; shall not constitute a mandatory charge or requirement in any ensuing budget year•, and shall not constitute a general obligation or other indebtedness or multiple fiscal year financial obligation of the Town within the meaning of any Charter, constitutional, statutory limitation or requirement concerning the creation of indebtedness or multiple fiscal year financial obligation, nor a mandatory payment obligation of the Town in any ensuing fiscal year beyond any fiscal year during which the Lease shall be in effect; and WHEREAS, the Trustee will enter into an Indenture of Trust (the "Indenture ") pursuant to which there is expected to be executed and delivered certain certificates of participation (the "2014B Certificates ") dated as of their date of delivery that shall evidence proportionate interests in the right to receive certain Revenues (as defined in the Lease), shall be payable solely from the sources therein provided and shall not directly or indirectly obligate the Town to make any payments beyond those appropriated for any fiscal year during which the Lease shall be in effect; and WHEREAS, it is expected that the 2014B Certificates shall be privately placed with (a) an "accredited investor," as defined in Rule 501(A)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended ( an "Institutional Accredited Investor ") or (b) a "qualified institutional buyer," as defined in Rule 144A promulgated under the Securities Act of 1933, as amended (a "Qualified Institutional Buyer ") (the "Initial Purchaser "); and WHEREAS, the net proceeds of the 2014B Certificates are expected to be used to finance the Project; and WHEREAS, Section 11 -57 -204 of the Supplemental Public Securities Act, constituting Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended (the "Supplemental Act "), provides that a public entity, including the Town, may elect in an act of issuance to apply all or any of the provisions of the Supplemental Act; and WHEREAS, there has been presented to the Town Council and are on file with the Town Clerk the following: (i) the proposed form of the Site Lease; and (ii) the proposed form of the Lease; and 2 WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Lease and the Site Lease. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Short Title. This ordinance shall be known and may be cited by the short title "2014B COP Ordinance." Section. 2. Ratification and Approval of Prior Actions. All action heretofore taken (not inconsistent with the provisions of this Ordinance) by the Town Council or the officers, agents or employees of the Town Council or the Town relating to the Site Lease, the Lease, the acquisition, construction, installation or improvement of the Project, and the execution and delivery of the 2014B Certificates is hereby ratified, approved and confirmed. Section 3. Finding of Best Interests. The Town Council hereby finds and determines, pursuant to the Constitution, the laws of the State of Colorado and the Charter, that the acquisition, construction, and installation of the Project, and the financing of the costs thereof pursuant to the terms set forth in the Site Lease and the Lease are necessary, convenient, and in furtherance of the Town's purposes and are in the best interests of the inhabitants of the Town and the Town Council hereby authorizes and approves the same. Section 4. Supplemental Act; Parameters. The-Town Council hereby elects to apply all of the Supplemental Act to the Site Lease and the Lease and in connection therewith delegates to each of the Mayor, the Town Manager or the Finance Director the authority to make any determination delegable pursuant to § 11- 57- 205(1)(a -i) of the Colorado Revised Statutes, as amended, in relation to the Site Lease and the Lease, and to execute a sale certificate (the "Sale Certificate ") setting forth such determinations, including without limitation, the term of the Site Lease, the rental amount to be paid by the Trustee pursuant to the Site Lease, the term of the Lease, and the rental amount to be paid by the Town pursuant to the Lease, subject to the following parameters and restrictions: a) the Site Lease Term shall not extend beyond December 31, 2040; b) the aggregate principal amount of the Base Rentals payable by the Town pursuant to the Lease shall not exceed $3,800,000; c) the maximum annual repayment amount of Base Rentals payable by the Town pursuant to the Lease shall not exceed $320,000; d) the maximum total repayment amount of Base Rentals payable by the Town pursuant to the Lease shall not exceed $4,800,000; e) the Lease Term shall not extend beyond December 31, 2030; and f) the maximum net effective interest rate on the interest component of the Base Rentals relating to the 2014B Certificates shall not exceed 3 .75 %. Pursuant to Section 11 -57 -205 of the Supplemental Act, the Town Council hereby delegates to each of the Mayor, the Town Manager or the Finance Director the independent authority to select the Initial Purchaser, to sign a contract for the purchase of the 2014B Certificates, or to accept a binding bid for the 2014B Certificates and to execute any agreement or agreements in connection therewith. The Town Council hereby agrees and acknowledges that the proceeds of the 2014B Certificates will be used to finance the costs of the Project and to pay other costs of issuance. Section 5. Approval of Documents. The Site Lease and the Lease, in substantially the forms presented to the Town Council and on file with the Town, are in all respects approved, authorized and confirmed, and the Mayor of the Town is hereby authorized and directed for and on behalf of the Town to execute and deliver the Site Lease and the Lease, in substantially the forms and with substantially the same contents as presented to the Town Council, provided that such documents may be completed, corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes of this ordinance. Section 6. Authorization to Execute Collateral Documents. The Town Clerk is hereby authorized and directed to attest all signatures and acts of any official of the Town in comiection with the matters authorized by this ordinance and to place the seal of the Town on any document authorized and approved by this ordinance. The Mayor and Town Clerk and other appropriate officials or employees of the Town are hereby authorized to execute and deliver for and on behalf of the Town any and all additional certificates, documents, instruments and other papers, and to perform all other acts that they deem necessary or appropriate, in order to implement and carry out the transactions and other matters authorized by this ordinance. The appropriate officers of the Town are authorized to execute on behalf of the Town agreements concerning the deposit and investment of funds in connection with the transactions contemplated by this ordinance, and are specifically authorized and directed hereby to invest such funds in Permitted Investments as are defined and provided in the Indenture. The execution of any instrument by the aforementioned officers or members of the Town-Council shall be conclusive evidence of the approval by the Town of such instrument in accordance with the terms hereof and thereof. Section 7. No General Obligation Debt. No provision of this ordinance, the Site Lease, the Lease, the Indenture, or the 2014B Certificates, shall be construed as creating or constituting a general obligation or other indebtedness or multiple fiscal year financial obligation of the Town within the meaning of any constitutional, statutory or home rule charter provision, nor a mandatory charge or requirement against the Town in any ensuing fiscal year beyond the then current fiscal year. The Town shall have no obligation to make any payment with respect to the 2014B Certificates except in connection with the payment of the Base Rentals (as defined in the Lease) and certain other payments under the Lease, which payments may be terminated by the Town in accordance with the provisions of the Lease. Neither the Lease nor the 2014B Certificates shall constitute a mandatory charge or requirement of the Town in any ensuing fiscal year beyond the then current fiscal year or constitute or give rise to a general obligation or other indebtedness or multiple fiscal year financial obligation of the Town within the meaning of any constitutional, statutory or Charter debt limitation and shall not constitute a multiple fiscal year direct or indirect debt or other financial obligation whatsoever. No-provision of the Site Lease, the Lease or the 2014B Certificates shall be construed or interpreted as creating an unlawful delegation of governmental powers nor as a donation by or a lending of the credit of the Town within the meaning of Sections 1 or 2 of Article XI of the Colorado Constitution. Neither the Lease nor the 2014B Certificates shall directly or indirectly obligate the Town to make any payments beyond those budgeted and appropriated for the Town's then current fiscal year. Section 8. Reasonableness of Rentals. The Town Council hereby determines and declares that the Base Rentals due under the Lease, in the maximum amounts authorized pursuant to Section 4 hereof, constitute the fair rental value of the Leased Property and do not exceed a reasonable amount so as to place the Town under an economic compulsion to renew the Lease or to exercise its option to purchase the Trustee's leasehold interest in the Leased Property pursuant to the Lease. The Town Council hereby determines and declares that the period during which the Town has an option to purchase the Trustee's leasehold interest in the Leased Property (i.e., the entire maximum term of the Lease) does not exceed the useful life of the Leased Property. The Town Council hereby further determines that the amount of rental payments to be received by the Town from the Trustee pursuant to the Site Lease is reasonable consideration for the leasing of the Leased Property to the Trustee for the term of the Site Lease as provided therein. Section 9. No Recourse ajZainst Officers and Agents. Pursuant to Section 11 -57 -209 of the Supplemental Act, if a member of the Town Council, or any officer or agent of the Town acts in good faith, no civil recourse shall be available against such member, officer, or agent for payment of the principal or interest on the 2014B Certificates. Such recourse shall not be available either directly or indirectly through the Town Council or the Town, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, of otherwise. By the acceptance of the 2014B Certificates and as a part of the consideration of their sale or purchase, any person purchasing or selling such certificate specifically waives any such recourse. Section 10. Repealer. All bylaws, orders, resolutions and ordinances of the Town, or parts thereof, inconsistent with this ordinance or with any of the documents hereby approved are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any bylaw, order, resolution or ordinance of the Town, or part thereof, heretofore repealed. All rules of the Town Council, if any, which might prevent the final passage and adoption of this ordinance as an emergency measure at this meeting of the Town Council be, and the same hereby are, suspended. Section 11. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the teen '`application" means and includes an application of an ordinance or any part thereof, whether 5 considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 12. Interpretation. This Ordinance shall be so interpreted and construed as to effectuate its general purpose. Section 13. Charter Controls. Pursuant to Article XX of' the State Constitution and the Charter, all State statutes that might otherwise apply in connection with the provisions of this Ordinance are hereby superseded to the extent of any inconsistencies or conflicts between the provisions of this Ordinance and the Sale Certificate authorized hereby and such statutes. Any such inconsistency or conflict is intended by the Town Council and shall be deemed made pursuant to the authority of Article XX of the State Constitution and the Charter. Section 14. Effective Date, Recording, and Authentication. This Ordinance shall be in full force and effect thirty days after final passage in accordance with Section 6.4 of the Charter. This Ordinance shall be numbered and recorded in the official records of the Town kept for that purpose, and shall be authenticated by the signatures of the Mayor and Mayor Pro - Tem and Town Clerk, and published in accordance with the Charter. Section 15. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 16. Publication. The Town Clerk is ordered to publish this Ordinance if full after adoption on first reading, and such publication shall include the day, hour and place at which Town Council shall hold a public hearing on said ordinance. The Ordinance shall be published in full after final passage pursuant to the Charter. 0 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED PUBLISHED IN FULL AND REFERRED TO PUBLIC HEARING, and setting such public hearing for October 14, 2014, at 5:30 p.m., at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on September 23, 2014. ATTEST: Debbie Hoppe, Town' C cr� TOWN OF AVON, COLORADO Rich Carroll, Mayor APPROVED AS TO FORM: Eric Heil, Attorney INTRODUCED, FINALLV APPROVED, PASSED ON SECOND READING, AND ORDERED PUBLISHED IN FULL on October 14, 2014. Ric�Carro ll, Mayor ATTEST: -4-YaL _ .. Debbie Ho - __... ppe, Clerk STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Debbie Hoppe, the Town Clerk of the Town of Avon, Colorado (the "Town "), do hereby certify: I, the duly elected, qualified, and acting Town Clerk of the Town of Avon, Colorado (the "Town'), do hereby certify that: 1. The foregoing pages are a true, correct and complete copy of an ordinance (the "Ordinance ") that was introduced, approved on first reading and ordered published in full in accordance with the Town Charter (the "Charter ") by the Town Council at a regular meeting thereof held on September 23, 2014, and was introduced, approved on second and final reading, and ordered published in full in accordance with the Charter on October 14, 2014, which Ordinance has not been revolted, rescinded or repealed and is in full force and effect on the date hereof. 2. The Ordinance was duly moved and seconded, and the Ordinance was approved on first reading, at the meeting of September 23, 2014, by an affirmative vote of a majority of the membership of the entire Town Council as follows: Councilmember Voting "Yes" Voting "No" Absent Abstaining Rich Carroll t / Jennie Fancher ✓ David Dantas Chris Evans Matt Gennett Buz Reynolds Jake Wolf �✓ 3. The Ordinance was duly moved and seconded, and the Ordinance was approved on second and final reading, at the meeting of October 14, 2014, by an affirmative vote of a majority of the membership of the entire Town Council as follows: Councilmember Voting "Yes" Voting "No" Absent Abstaining Rich Carroll Jennie Fancher David Dantas V Chris Evans (/ Matt Gennett Buz Reynolds V Jake Wolf 4. The members of the Town Council were present at such meetings and voted on the passage of such Ordinance as set forth above. 5. The Ordinance was authenticated by the signature of the Mayor, sealed with the Town seal, attested by the Town Clerk, and recorded in the minutes of the Town Council. 6. There are no bylaws, rules or regulations of the Town Council, that might prohibit the adoption of the Ordinance. 7. Notices of the meetings of September 23, 2014, and October 14, 2014, in the forms attached hereto as Exhibit A were posted at the Town Hall not less than 24 hours prior to each meeting in accordance with law. %% , 8. On September 2014, and Octobers LK2014, the Ordinance was published in full in the Vail Daily, a newspaper of general circulation in the Town, in accordance with the Charter. Affidavits of publication are attached hereto as Exhibit B. WITNESS my hand and the seal of the Town affixed this 1,41 i�"day of October, 2014. �dH t S EA L wn Clerk ` LOR09 2 EXHIBIT A (Attach Notices of Meetings of September 23, 2014 and October 14, 2014) A -1 EXHIBIT B (Affidavits of Publication)