TC Packet 03-10-2020
_______________________________________________________________________________
MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY
IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING,
CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS.
1
AVON TOWN COUNCIL MEETING AGENDA
TUESDAY, MARCH 10, 2020
MEETING BEGINS AT 5:00 PM
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
AVON TOWN COUNCIL TUTORIAL BEGINS AT 4:00 PM
PRESENTATION: COMMUNITY SURVEY (MARKETING AND COMMUNITY RELATIONS LIZ WOOD AND TOWN MANAGER ERIC
HEIL) (40 MINUTES)
AVON TOWN COUNCIL REGULAR MEETING BEGINS AT 5:00 PM
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS
4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA
[AN INITIAL THREE (3) MINUTE LIMIT ALLOWED TO EACH PERSON WISHING TO SPEAK. SPEAKER MAY REQUEST
MORE TIME AT THE END OF THE THREE (3) MINUTES, WHICH MAY BE APPROVED BY A MAJORITY OF THE COUNCIL.]
5. BUSINESS ITEMS
5.1. PRESENTATION: RECOMMENDATIONS FROM THE SUSTAINABLE BUILDING CODE TASK FORCE (ADAM
PALMER, SUSTAINABLE COMMUNITIES DIRECTOR, EAGLE COUNTY AND KIM SCHLAEPFER, CLIMATE
ACTION COLLABORATIVE) (30 MINUTES) 5:10
5.2. WORK SESSION ON THE CORONA VIRUS (CHIEF OF POLICE GREG DALY, DEPUTY CHIEF COBY COSPER AND HR
& RISK MANAGEMENT DIRECTOR LANCE J. RICHARDS) (20 MINUTES) 5:40
5.3. FIRST READING OF ORDINANCE 20-04 REFINANCING THE TOWN’S SERIES 2010 CERTIFICATES OF
PARTICIPATION (COPS) (FINANCE MANAGER AMY GREER) (10 MINUTES) 6:00
5.4. ENGAGEMENT LETTER WITH BUTLER SNOW AS BOND COUNSEL FOR THE PROPOSED 2020 CERTIFICATES
OF PARTICIPATION BOND REFINANCING (DEE WISOR, BUTLER SNOW) (5 MINUTES) 6:10
5.5. ENGAGEMENT LETTER WITH PIPER SANDLER AS PRIVATE PLACEMENT AGENT FOR THE PROPOSED 2020
CERTIFICATES OF PARTICIPATION BOND REFINANCING (JONATHAN HEROUX, PIPER SANDLER) (5
MINUTES) 6:15
5.6. WORK SESSION: DEED RESTRICTED PURCHASE PROGRAM (CONTINUED) (TOWN ATTORNEY PAUL
WISOR & TOWN MANAGER ERIC HEIL) (40 MINUTES) 6:20
5.7. PUBLIC HEARING: SECOND READING ORDINANCE 20-03, OPTIONAL PREMISE LICENSE FOR LIQUOR
LICENSES AT EVENTS (CASE MANAGER, DANITA DEMPSEY) (15 MINUTES) 7:00
5.8. RESOLUTION 20-03 DESIGNATING NOTTINGHAM PARK AS THE VENUE FOR THE OPTIONAL PREMISES
LIQUOR LICENSE – LOCAL OPTION (CASE MANAGER, DANITA DEMPSEY) (10 MINUTES) 7:15
5.9. RESOLUTION 20-04 DESIGNATING THE EVENT MANAGER FOR THE TOWN’S OPTIONAL PREMISES LICENSE
(CASE MANAGER, DANITA DEMPSEY) (10 MINUTES) 7:25
_______________________________________________________________________________
MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG
AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY
IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING,
CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS.
2
5.10. RESOLUTION 20-05 APPROVING THE EXPENDITURE OF COMMUNITY ENHANCEMENT FUNDS (CASE
MANAGER, DANITA DEMPSEY) (10 MINUTES) 7:35
5.11. REQUEST FOR EXTENSION OF APPLICATION APPROVAL – LOT B, AVON CENTER AT BEAVER CREEK
SUBDIVISION (PLANNING DIRECTOR, MATT PIELSTICKER) (20 MINUTES) 7:45
5.12. LED SIGN CONTRACT (TOWN ENGINEER JUSTIN HILDRETH) (20 MINUTES) 8:05
5.13. NOTICE OF AWARD FOR EAGLEBEND PAVING (TOWN ENGINEER JUSTIN HILDRETH) (10 MINUTES) 8:25
5.14. NOTICE OF AWARD FOR YODER AVENUE PAVING (TOWN ENGINEER JUSTIN HILDRETH) (10 MINUTES)
8:35
5.15. RECORD OF DECISION FOR ERWSD 1041 PERMIT (PLANNING DIRECTOR, MATT PIELSTICKER) (5
MINUTES) 8:45
5.16. APPROVAL OF MINUTES FROM FEBRUARY 25, 2020 REGULAR COUNCIL MEETING (TOWN CLERK BRENDA
TORRES) (5 MINUTES) 8:50
6. WRITTEN REPORTS
6.1. UPPER EAGLE REGIONAL WATER AUTHORITY FEBRUARY 27, 2020 MEETING SUMMARY (MAYOR SMITH
HYMES)
6.2. MARCH 3RD PLANNING AND ZONING COMMISSION MEETING ABSTRACT (PLANNING DIRECTOR MATT
PIELSTICKER)
6.3. TOWN MANAGER REPORT (TOWN MANAGER ERIC HEIL)
6.4. WHITEWATER PARK REPORT (TOWN ENGINEER JUSTIN HILDRETH)
7. MAYOR & COUNCIL COMMENTS & MEETING UPDATES (10 MINUTES) 8:55
8. ADJOURN 9:0 5
___________________________________________________________________________________________________________________________________________________________________________________________
*Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of
the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide
written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments for any
action item or work session item, and may permit public comment for any other agenda item, and may limit such public comment to three minutes per
individual, which limitation may be waived or increased by a majority of the quorum present. Article VI. Public Comments, Avon Town Council
Simplified Rules of Order, Adopted by Resolution No. 17-05.
FUTURE MEETING AGENDAS:
March 24, 2020
- PRESENTATION: PROPERTY TAX INCREASE IN MAY FOR FIRE DISTRICT
- FIRST READING ORDINANCE 20-XX: PROCUREMENT CODE
- NOTICE OF AWARD FOR NOTTINGHAM PARK UTILITY
- STAFF UPDATED ON OLD TOWN HALL DEMOLITION
- EXECUTIVE SESSION: PERSONNEL REGARDING ANNUAL TOWN MANAGER PERFORMANCE REVIEW
April 28, 2020
- 4:00 P.M. TUTORIAL: FIRE HOUSE BUILDOUT
- PUBLIC HEARING: 1ST AMENDMENT TO 2020 BUDGET
- PRESENTATION: ICE SKATING ON NOTTINGHAM LAKE
- WORK SESSION: POTENTIAL FUNDING SOURCES FOR COMMUNITY HOUSING
970.748.4004 eric@avon.org
TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager
RE: Community Survey
DATE: March 6, 2020
SUMMARY: This report provides an overview of the Avon Community Survey process planned for this
spring. The Avon Community Survey was previously conducted in 2015 and 2018. The frequency is
increased to once every two years, to commence this year, and then continue in even numbered years.
Staff is requesting two Council members to participate in reviewing the draft Community Survey
questions. We can also conduct a separate community meeting for the general public and all Council
members to review and comment on draft Community Survey questions. Staff is currently working on the
draft Community Survey questions.
PREVIOUS COMMUNITY SURVEYS: The 2018 Community Survey was conducted as both a telephone
interview survey and an on-line survey and received a total of 355 responses. Only registered voters were
surveyed. The 2018 Survey asked 54 questions. Here is the link to the 2015 Community Survey Results
and 2018 Community Survey Results:
http://www.avon.org/2148/Community-Survey-Results
AVON STRATEGIC PLAN: The Avon Strategic Plan states the following under Community Engagement:
Community engagement is an essential function of local government decision making. Avon Town
Council has determined to improve and enhance community engagement practices to increase
community participation. The following specific projects and policies are proposed for
implementation in 2020 to expand and enhance Avon’s community engagement.
1. Improve Community Survey: The community survey is a valuable tool that can allow direct
participation by the greatest number of community members to identify consensus on services and
policies. Improvements to the Community Survey include (a) implementing an accessible, attractive
and accountable on-line survey format, (b) significantly expanding participation from 355 to over
2,000, (c) offering a bilingual format, (d) sending to residents, property owners, and business
owners, and (e) increasing frequency to even numbered years. The Community Survey should
include approximately one-half re-occurring questions on Town services to track trends in
community satisfaction and one-half questions on proposed or potential community programs,
policies and investments.
2020 COMMUNITY SURVEY: The 2020 Community Survey will be available to all registered voters and all
property owners (not including fractional interest property owners). The list of registered voters and
property owners will be cross-checked to eliminate duplicates so that every registered voter will receive one
Community Survey and every property owner will receive a Community Survey, but registered voters who
are also property owners will not receive more than one Community Survey. Staff will also set-up a means
for non-registered voters who can demonstrate residency to have the opportunity to complete the on-line
Community Survey. A separate Business Survey will be sent to all business owners with a current business
license and physical business address in Avon.
The on-line Community Survey will commence with a mailed notification which will provide log-in
information. The Community Survey will be conducted as an online survey and will include a designated
Page 2 of 2
log-in code to allow each respondent to only complete one survey. The Community Survey will be available
in English and Spanish with the ability to select the language of the Community Survey on the front page.
The target date to release the survey is Monday, May 4 and is planned to be open through Monday,
June 1. The Survey results will be available immediately after the close of the Survey due to the on-line
format. The Survey data will allow for filters such that the Town can filter the responses based upon
neighborhood, owner versus renter, responses by neighborhood, etc.
The Business Survey will have a different timeframe and would be issued independently to Avon
businesses.
CONFIDENTIALITY: All respondents will be confidential in a manner similar to voting where the Town can
determine that a Community Survey was completed but cannot identify the specific Community Survey
response to any individual.
CONSULTANT SUPPORT: Avon is using a hybrid approach to the Community Survey whereby a
consultant will assist with creating the on-line Community Survey along with the security measures and will
provide a data set that can be reviewed with filters. Avon Staff will assist with compiling the list of residents
and property owners, organizing the information mailer, conducting the marketing and organizing the
incentive prizes.
SURVEY QUESTIONS: The Community Survey questions will include approximately 30-35 questions
which ask basic information and opinions on Town government and services. These questions are intended
to be substantially similar to previous questions on Town government and services and are intended to be
repetitious in future years going forward to develop data that indicates trends and changes in community
opinions. Approximately 20 – 15 questions are intended to solicit opinions on pending and potential Town
projects, policies and programs. The Business Survey will ask a different and shorter set of questions
directly related to operating a business in Avon.
ACCESSIBILITY: Staff is contemplating holding “Community Survey Fairs” at the Avon Elementary School
and in the Avon Town Hall where we would make computers available for community members who need
access to a computer in order to complete the Community Survey.
MARKETING: Staff has $3,000 budgeted for marketing through the Vail Daily and through social media
pushes. Marketing efforts would commence prior to the start of the Community Survey and would continue
through the final date.
INCENTIVES: Staff has $3,000 budgeted for incentives. Staff intends to approach Avon restaurants for a
$100 gift certificates with a request to provide the gift certificate at a discount and then we would include
the restaurant name and/or logo on the Community Survey as a community sponsor. Additionally, Staff is
considering a grand prize of a Vail Epic Pass (or cash equivalent) so that there may be approximately 25
restaurant gift certificates and a grand prize.
RESPONSE GOAL: The goal is to increase the response rate from 355 to 2,000+ as stated in the
Strategic Plan.
BUDGET: The target budget is to complete the Community Survey for $20,000 and achieve 2,000
responses for an average cost of $10 per response.
Thank you, Eric
Green Building Practice Description Intent Applicability Resolution / Incentive Section1. Adopt every other building code cycle Beginning with I-Code 2021, adopt every other building code cycle - Ease of adoption- More opportunity for educationNew Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesBuilding Resolution N/A2. Adopt and enforce Solar-Ready provisions in IRC and IECCEnforce the solar-ready provisions in IECC 2015 / IRC 2015 Appendix RB/U- Renewable energy- Beneficial electrificationNew Com: NoNew Res: YesAddition Com: NoAddition Res: YesAlteration Com: NoAlteration Res: YesBuilding Resolution IECC 2015 Appendix RB / IRC Appendix U3. Apply Impact Fees based on Social Cost of Carbon:Part 1: Mechanical System SelectionPart 2: Exterior Energy OffsetPart 1: Apply the SCC impact fee to new heating (and cooling) equipment which relies on fossil fuels, to accurately reconsile the societal impact of the equipment and to encouarge a shift towards systems that are run on renewable energy and are all-electric.Part 2: Update the exterior energy offset regulations in two ways:1. Update the assumed energy use of the system to be in line with Pitkin County2. Update the fee in lieu to reflect the Social Cost of Carbon fee for carbon produced by exterior energy sources- Renewable energy- Beneficial electrificationNew Com: Yes (Part 1)New Res: Yes Addition Com: Yes (Part 1)Addition Res: YesAlteration Com: Yes (Part 1)Alteration Res: YesBuilding Resolution - Eagle County Building Resolutions Section 3.11- Town of Avon Municipal Code Title 15 Chapter 15.27- Town of Minturn Municipal Code Chapter 18 Article 6, Section 8-6-304. Install electric capacity to accommodate future electric heating and EV charging needsProvide a 200 amp All-in-one solar ready electric service panel for all new residential properties to ensure future electrification of heating systems and vehicles can be supported. Provide a minimum number of EV Capable, EV Ready, and EVSE equipped parking spaces in all new construction for commercial, residential, and multi-family developments. - Renewable energy- Beneficial electrification- Electrification of transportationNew Com: Yes (EV)New Res: YesAddition Com: NoAddition Res: YesAlteration Com: NoAlteration Res: YesBuilding Resolution IECC 2015 Section C405IRC 2015 Section R4045. Require 92% or greater efficiency on all new gas equipmentRequire any new commercial or residential building using gas appliances or heating equipment to be 90% or greater efficiency. Require any addition or alteration of over 25% of total floor area replace existing gas equipment with equipment that has an efficiency of 90% or greater. Including any mechanical equipment permits for existing buildings.- Energy Efficiency New Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesBuilding Resolution IRC 2015 Section N1103.7Replace equipment efficiencies in IECC 2015 Code for Commercial BuildingsTABLE 403.2.3; TABLE C403 2 3(5)6. Indoor water efficiencyAll new fixtures must be WaterSense Certified + requirements for Public Lav Sink and Public Metered FaucetsMeet water appliance efficiency standards- Reduce indoor water use New Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesBuilding Resolution IPC 2015 Chapter 6 Section 604[ADD IRC REFERENCE]7. Construction waste management: planning & implementationCreate a Construction Waste Management plan, divert all C&D waste that has an end market in Eagle County, and produce a final CWM plan with final project diversion rates- Divert construction waste from the landfillNew Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesBuilding Resolution ADD Appendix N
8. Area for Storage & Collection of Recyclables and Discarded GoodsProvide space in every new commercial and multi-fam building for the collection and storage of recycling, compost, and trash. Both Development Review and Building Code - you need a trash/recycle chute as well in muti-family- Increase waste diversion New Com: YesNew Res: NoAddition Com: YesAddition Res: NoAlteration Com: YesAlteration Res: NoBuilding Resolution and/or Land Use RegulationsTBD - new code section required9. Light pollution reductionMeet the following requirements for outdoor lighting fixtures: lighting controls, prescriptive/performance method for total luminares, backlight, uplight, and glare- Protect dark sky- Protect wildlifeNew Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesLand Use Regulations10. Sensitive Site SetbackProhibit development activity in the following areas:1. Previously undeveloped land having an elevation of lower than 5 ft above the elevation of the 100-yr floodplain2. Land within 75 feet of any fish and wildlife habitat conservation area3. Land within 75 feet of a wetland- Protect river health New Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesLand Use Regulations11. Adoption of NWCCOG Model Water Efficiency OrdinanceAdopt the NWCCOG Model Water Efficiency Ordinance which includes sections on Water Supply, Landscape Design, Soil Quality/Health, Irrigation System Design, Water Budgeting, Waste Water- Reduce outdoor water use- Improve soil healthNew Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesLand Use Regulations12. Reference, compliance, and enforcement of Colorado Revised Statues supporting irrigationSenate Bill 13-183 dictates that no HOA or other entity represending multiple home-owners can restrict a member of that HOA or entity from planting non-turf landscaping, xeriscaping, or any specifc landscape design- Outdoor water efficiency New Com: NoNew Res: YesAddition Com: NoAddition Res: YesAlteration Com: NoAlteration Res: YesLand Use Regulations13. Bike Racks for new commercial developmentsProvide a minimum number of covered/non-covered bike parking spaces for at least 5% of anticipated building occupants or 0.5 spaces per dwelling unit for multi-family developments- Reduce impacts of transportation- Increase bike infrastructure- Protect clearence of right-of-ways and emergency egressNew Com: YesNew Res: NoAddition Com: YesAddition Res: NoAlteration Com: YesAlteration Res: NoLand Use Regulations14. Encourage HERS Performance PathIncentivize ERI performance path for new residential construction - Energy Efficiency- Air tightness- Ease of building inspectionNew Com: NoNew Res: YesAddition Com: NoAddition Res: YesAlteration Com: NoAlteration Res: YesIncentive Program
15. Provide education and incentives to support beneficial electrificationProvide opportunities or incentives to encourage use of all-electric heating systems including new tech, utility rate options, net zero homes, etc- Renewable energy- Beneficial electrificationNew Com: YesNew Res: YesAddition Com: YesAddition Res: YesAlteration Com: YesAlteration Res: YesIncentive Program
1
Building Code
Recommendations for Local
Governments in Eagle County,
Colorado
Prepared by the Sustainable Building Code Task Force
2
The following individuals were a part of the Sustainable Building Code Task Force or were
consulted on these recommendations.
Tim Braun, R&H Mechanical
Seth Bossung, Intention Architecture
Mary Wiener, Holy Cross Energy
Deron Dircksen, Town of Eagle
Steve Novy, Green Line Architects
Rebecca Smith, Zehren Architecture
Nikki Maline, Walking Mountains Sustainability
John Widerman, Town of Minturn
Michael Rodenak, Zehren Architecture
Barry Monroe, R.A. Nelson
Megan Gilman, North 39 Energy
Kira Koppel, Eagle River Water & Sanitation District
Cat Hayes, Eagle River Water & Sanitation District
Christopher Jarecki, Town of Vail
Amanda Poindexter, Town of Basalt Consultant
Adam Palmer, Eagle County
Derek Place, Town of Avon
Charlie Davis, Town of Eagle
Jesse Masten, Eagle County Solid Waste & Recycling
Shawn Bruckman, Vail Honeywagon
Torie Jarvis, Northwest Colorado Council of Governments
Brian Pawl, Pitkin County
Jonathon Nagle, Fort Collins
Vance Gabossi, Eagle County
Mona Newton, Aspen CORE
Phi Filerman, Aspen CORE
Kristen Hartel, Green Building Certification Institute
Denyse Schrenker, CSU Extension Office
Rich Clubine, Active Energies
Bob Olson, ET Irrigation
Steve Linnenberger, ET Irrigation
Brian Bair, ET Irrigation
Kreston Rohrig, Mountain Organic Landscaping
Kelli Rohrig, Mountain Organic Landscaping
Table of Contents
Introduction & Applicability…………….……………………………………………………. 3
Building Code Resolution Recommendations..…………………………………………… 10
Land Use Regulation Recommendations…………………………………………………..32
Incentive Program Recommendations……………………….……………………………..63
Rental Housing Regulation Recommendations………………………………………….............66
3
Appendix A Definitions……………………………………………………………………………....68
Introduction
With seven townships, multiple metro districts and homeowner associations throughout Eagle
County, jurisdictional fragmentation and confusion on building code regulations for owners,
builders and regulatory agencies has been a challenge. Efforts to support consistency across
jurisdictional boundaries for building code requirements to improve safety, efficiency, and
resource conservation will remove the confusion and promote compliance with a single building
code. Within the Climate Action Plan (CAP), adopted by 25+ stakeholder and a majority of
jurisdictions in 2016, consideration of beyond-code building code requirements was identified,
along with water conservation and an update of Eagle County’s Eco-Build fees, as strategies to
meet the greenhouse gas reduction goals in the CAP. To this end, a group of building design
professionals, builders, contractors, building officials, local government and non-profit
stakeholders assembled as the Sustainable Building Code Task Force to dedicate their time
over numerous meetings and correspondence to try and answer a basic question;
What amendments to local building codes are recommended to support the achievement
of the Climate Action Plan and other sustainability goals?
Over the course of the past eight months, the Sustainable Building Code Task Force reviewed
numerous options, case studies, energy models, building codes, and cost-effectiveness
estimates to develop this recommendations document.
____________________________________________________________________________
The recommendations provided in this document aim to balance the criteria identified by the
task force, which recognize feasibility, level of disruption, and attainability as balancing factors.
Eventually, as new buildings are added to our building stock, new structures should be required
to be net zero for GHG emissions to avoid trying to walk down an up escalator while trying to
achieve already aggressive GHG emission reduction goals. Examples towards this goal can
include Zero Energy Ready Homes, Zero Energy Building, or Net Zero Building.
As a first step towards this end-goal, we are aiming for consistency throughout the
County as a priority. As we are able to move forward with the recommendations, particularly
within the energy sector of this document, we may consider recommending additional steps,
either from a regulatory and / or education and incentive standpoint moving forward. To this
end, it is recommended that the Sustainable Building Code Task Force reconvene when future
code versions are released by the International Code Council for review and in support of the
vision and criteria of the initiative as listed below.
It is an identified task that the stakeholders in the Sustainable Building Code Task Force
and building officials meet and discuss these recommendations, code updates, and other
market-based trends to consider updates and modifications to building codes and policies on a
4
bi-annual basis, understanding there are numerous co-benefits of having consistent codes,
enforcement, and requirements across the multiple jurisdictions within Eagle County.
___________________________________________________________________________
The identified Mission of the Sustainable Building Code Task Force is to:
Decarbonize the built environment in Eagle County through the use of mandatory and voluntary
sustainability criteria and energy efficiency requirements for new construction and existing
buildings in order to achieve a 30% reduction in energy use in buildings by 2030 and an overall
80% reduction in carbon emissions in the community by 2050.
The identified Vision of the Sustainable Building Code Task Force is to:
Create a system of mandatory and voluntary energy efficiency and non-energy sustainability
criteria for new construction and existing buildings that is consistent throughout Eagle County.
The Sustainable Building Code Task Force also identified the following criteria to meet
its mission, whereas recommendations should:
1. Advance energy efficiency and renewable energy through the lens of carbon reduction
2. Reflect favorable cost-effectiveness for both construction and operational costs
3. Include non-energy-related items such as IAQ, water efficiency, materials and resources
4. Support fuel switching from fossil fuels to electrification for heating and transportation
5. Incentivize innovation / above and beyond, EV charging, all electric, data
access/measurement, other educational / demonstration projects through code
6. Include education, training, and coaching
7. Not place a significant additional burden on inspection staff, costs
8. Be clear, simple to understand/administer
In order to meet the objectives and criteria, this document is broken down into the following
sections:
1. Energy Code recommendations
2. Non-energy related sustainability provisions
3. Exterior energy use regulations
4. Rental Housing recommendations
Applicability
5
The provisions in this set of recommendations apply to all new construction projects and any
alteration or addition that impacts or adds on 25% or more of the existing floor area of the
building. Applicability for residential and commercial projects are listed below in the table.
*Note all rows with green are referenced in some way in the IECC 2021 code.
Green Building
Practice
Applicability Building Code
Resolution /
Incentive
Program / Land
Use Resolution
Applicable Code
Section
1. Adopt every other
building code cycle
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Building
Resolution
N/A
2. Adopt and enforce
Solar-Ready provisions
in IRC and IECC
New Com: No
New Res: Yes
Addition Com: No
Addition Res: Yes
Alteration Com: No
Alteration Res: Yes
Building
Resolution
IECC 2015
Appendix RB /
IRC Appendix U
3. Apply Impact Fees
based on Social Cost of
Carbon:
Part 1: Mechanical
System Selection
Part 2: Exterior Energy
Offset
New Com: Yes (Part 1)
New Res: Yes
Addition Com: Yes (Part
1)
Addition Res: Yes
Alteration Com: Yes
(Part 1)
Alteration Res: Yes
Building
Resolution
- Eagle County
Building
Resolutions
Section 3.11
- Town of Avon
Municipal Code
Title 15 Chapter
15.27
- Town of Minturn
Municipal Code
Chapter 18 Article
6, Section 8-6-30
6
4. Install electric capacity
to accommodate future
electric heating and EV
charging needs
New Com: Yes (EV)
New Res: Yes
Addition Com: No
Addition Res: Yes
Alteration Com: No
Alteration Res: Yes
Building
Resolution
IECC 2015
Section C405
IRC 2015 Section
R404
5. Require 92% or
greater efficiency on all
new gas equipment
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Building
Resolution
IRC 2015 Section
N1103.7
Replace
equipment
efficiencies in
IECC 2015 Code
for Commercial
Buildings
TABLE 403.2.3;
TABLE
C403.2.3(5)
6. Indoor water efficiency New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Building
Resolution
IPC 2015 Chapter
6 Section 604
7. Construction waste
management: planning &
implementation
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Building
Resolution
TBD - new code
section required
8. Area for Storage &
Collection of Recyclables
and Discarded Goods
New Com: Yes
New Res: No
Addition Com: Yes
Addition Res: No
Alteration Com: Yes
Alteration Res: No
Building
Resolution and/or
Land Use
Regulations
TBD - new code
section required
7
9. Light pollution
reduction
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Land Use
Regulations
10. Sensitive Site
Setback
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Land Use
Regulations
11. Adoption of
NWCCOG Model Water
Efficiency Ordinance
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Land Use
Regulations
12. Reference,
compliance, and
enforcement of Colorado
Revised Statues
supporting irrigation
New Com: No
New Res: Yes
Addition Com: No
Addition Res: Yes
Alteration Com: No
Alteration Res: Yes
Land Use
Regulations
13. Bike Racks for new
commercial
developments
New Com: Yes
New Res: No
Addition Com: Yes
Addition Res: No
Alteration Com: Yes
Alteration Res: No
Land Use
Regulations
8
14. Encourage HERS
Performance Path
New Com: No
New Res: Yes
Addition Com: No
Addition Res: Yes
Alteration Com: No
Alteration Res: Yes
Incentive Program
15. Provide education
and incentives to support
beneficial electrification
New Com: Yes
New Res: Yes
Addition Com: Yes
Addition Res: Yes
Alteration Com: Yes
Alteration Res: Yes
Incentive Program
9
____________________________________________________
Building Code Resolution Recommendations
1. Title: Adopt every other building code cycle (beginning with 2021 I-Codes)
What is the requirement?
1. Each jurisdiction adopt every other code cycle starting with IECC 2021, with the
recognition that minor local amendments through building resolutions may differ.
2. Each jurisdiction building code officials review the new I-codes when released every 3
years for awareness, and through periodic meetings and/or correspondence with other
code officials, discuss if there is desire to initiate building resolution amendments
accordingly.
Why or how does this help?
This recommendation tries to find an appropriate balance to support the latest safety and
efficiency standards, potentially lower insurance premiums, and liability, while also supporting
consistency and higher levels of compliance and education for both building inspection staff and
contractors which could be challenges from adopting new code cycles every 3 years. This
approach still allows for amendments to code requirements through locally adopted building
resolutions. Having all jurisdictions on the latest codes, and enforcing the same aspects of
those codes, supports consistency, predictability, and best practices.
Code language (existing or proposed): International Code Council reviews and adopts building
code requirements and publishes all adopted codes, including training and commentaries at
https://www.iccsafe.org/
Examples, links, additional explanation: Numerous entities across Colorado and the nation
have adopted or are adopting the 2018 IECC. In Eagle County, many jurisdictions adopt every
other code cycle (every 6 years) instead of every code cycle (every 3 years) for simplicity,
training, and costs associated with code adoptions. Town of Vail has typically adopted every
code cycle and is currently on the 2018 IECC, while others are on the 2015 code.
https://www.vailgov.com/departments/community-development/recent-code-amendments
10
2021 I-codes are currently in the process of being written through ICC rulemaking process.
While 2009 and 2012 I-codes made significant changes in energy efficiency requirements, 2015
and 2018 have focused more on clarification and adjustments. For reference, some changes to
2018 vs. 2015 include
● Window U-factor drops to U-.30 (more efficient) from the previous U-.32
● Amendments to ERI performance path standards to HERS 61 (easier to meet) from
HERS 54
● High efficacy lighting (LEDs) increased the requirement to 90% from 75%
● Log home standard
● Showerhead flow rate of 2.0 gpm
● Minor insulation/air sealing specification improvements
11
2. Title: Adopt and Enforce Solar-Ready provisions currently in IRC and IECC.
What is the requirement? New detached one-and two-family dwellings, and multiple single-
family dwellings (townhouses) with not less than 600 square feet of roof area oriented between
110 degrees and 270 degrees of true north shall comply with the following:
Exceptions:
1. New residential buildings with permanently installed on-site renewable energy
systems
2. A building with a solar-ready zone is shaded for more than 70% of daylight hours
annually
1. Construction documents shall indicate the solar-ready zone.
2. The total solar-ready zone area shall not be less than 300 square feed exclude of
mandatory access or set back areas as required by the International Fire Code. New
multiple single-family dwellings (townhouses) three stories or less in height above grade
plane with a total floor area less than or equal to 2,000 square feet per dwelling shall
have a solar ready zone area of not less than 150 square feet. The solar-ready zone
shall be composed of areas not less than 5 feet in width and not less than 80 square
feed exclusive of access or set back areas as required by the International Fire Code.
3. Solar-ready zones shall be free from obstructions,including but not limited to vents,
chimneys, and roof-mounted equipment
4. The structural design loads for roof dead load and roof live load shall be clearly indicated
on the construction documents.
5. Construction documents shall indicate pathways for routing of conduit (at least ¾ inch)
or plumbing from the solar-ready zone to a junction box where an inverter will be
housed, continuing to the electrical service panel or service hot water system.
6. The main electrical service panel shall be a minimum 200 amp all-in-one solar ready
panel.
7. A permanent certificate, indicating the solar-ready zone and other requirements of this
section shall be posted near the electrical distribution panel, water heater or other
conspicuous location by the builder or registered design professional.
How does this help? While solar may not be installed as part of new construction for whatever
reason, this requires that rough-in work which would make future solar PV installation feasible
and less costly to install. The requirement only applies to structures with 600 ft2 or more south-
facing roof area and adequate solar access.
12
Code Language: IECC 2015 Appendix RB / IRC Appendix U
RB103.1/U103.1 General
New detached one- and two-family dwellings, and multiple single-family dwellings (townhouses)
with not less than 600 square feet of roof area oriented between 110 degrees and 270 degrees
of true north shall comply with Sections RB103.2 through RB103.8.
Exceptions:
1. New residential buildings with a permanently installed on-site renewable energy system.
2. A building with a solar-ready zone that is shaded for more than 70 percent of daylight
hours.
RB103.2 / U103.2 Construction document requirements for solar-ready zone.
Construction documents shall indicate the solar-ready zone.
RB103.3 / U103.3 Solar-ready zone area.
The total solar-ready zone area shall not be less than 300 square feet exclusive of mandatory
access or set back areas as required by the International Fire code. New multiple single-family
dwellings (townhouses) three stories or less in height above grade plane with a total floor area
less than or equal to 2,000 square feet per dwelling shall have a solar-ready zone area of not
less than 150 square feet. The solar-ready zone shall be composted of areas not less than 5
feet in width and not less than 80 square feet exclusive of access or set back areas as required
by the International Fire code.
RB103.4 / U103.4 Obstructions.
Solar-ready zones shall be free from obstructions, including but not limited to vents, chimneys,
and roof-mounted equipment
RB103.5 / U103.5 Roof Load Documentation.
The structural design loads for roof dead load and roof live load shall be clearly indicated on the
construction documents.
RB103.6 / U103.6 Interconnection pathway.
Construction documents shall indicate pathways for routing of conduit or plumbing from the
solar-ready zone to the electrical service panel or service hot water system.
RB103.7 / U103.7 For electric amp service, install a minimum of 200 amp service with an All in
One Solar Ready Panel for one to two family dwellings or townhouses accessible from the
13
primary breaker box. The conduit running to the solar-ready panel must be minimum 2 inch
pipe.
For electric amp service, install a minimum of 200 amp service with an All in One Solar Ready
Panel for one to two family dwellings or townhouses accessible from the primary breaker box.
The conduit running to the solar-ready panel must be minimum 2 inch pipe.
RB103.8 / U103.8 Construction documentation certificate.
A permanent certificate, indicating the solar-ready zone and other requirements of this section,
shall be posted near the electrical distribution panel, water heater or other conspicuous location
by the builder or registered design professional.
Reference or Links:
https://codes.iccsafe.org/content/IECC2015/appendix-rb-solar-ready-provisions-detached-one-
and-two-family-dwellings-multiple-single-family-dwellings-townhouses-
14
3. Title: Apply Impact Fees based on Social Cost of Carbon:
Part 1: New Mechanical Equipment
Part 2: Exterior Energy Offset Program
Part 1:
New Mechanical Equipment
What is the requirement?
Consider applying the social cost of carbon impact fee to new heating (and cooling equipment)
which relies upon fossil fuels, such as natural gas, propane, oil, or coal, to accurately reconcile
the societal impact of the equipment, and to encourage a shift in use toward systems running on
renewable energy and all-electric heating systems.
What is the Social Cost of Carbon and how does this help?
The Social Cost of Carbon (SCC) is a measure, in dollars, of the long-term damage done by a
ton of carbon dioxide (CO2) emissions in a given year. This dollar figure also represents the
value of damages avoided for a small emission reduction (i.e., the benefit of a CO2 reduction).
The SCC is meant to be a comprehensive estimate of climate change damages and includes
changes in net agricultural productivity, human health, property damages from increased flood
risk, and changes in energy system costs, such as reduced costs for heating and increased
costs for air conditioning. However, given current modeling and data limitations, it does not
include all important damages. The IPCC Fifth Assessment report observed that SCC estimates
omit various impacts that would likely increase damages. The models used to develop SCC
estimates, known as integrated assessment models, do not currently include all of the important
physical, ecological, and economic impacts of climate change recognized in the climate change
literature because of a lack of precise information on the nature of damages, and because the
science incorporated into these models naturally lags behind the most recent research.
Nonetheless, the current estimates of the SCC are a useful measure to assess the climate
impacts of CO2 emission changes.
The SCC is currently used by local, state, and federal governments to inform billions of dollars
of policy and investment decisions in the United States and abroad. In Colorado, Senate Bill
SB19-236 passed in 2019, requiring the Colorado Public Utilities Commission to use a SCC of
$46 per ton beginning in 2020 when evaluating utility resource plans.
Application of SCC into building code could provide an effective tool at capturing the societal
impacts of the proposed change to the built environment.
Code Language: Potential building resolution language:
Any new mechanical equipment installations reliant upon the combustion of propane, natural
gas, heating oil, or other fossil fuel shall offset the impact of the operation of the equipment
through renewable energy systems which meet the Colorado Renewable Portfolio Standard, or
pay a fee-in-lieu according to the Social Cost of Carbon Calculator:
15
Social Cost of Carbon Calculator
Links or Reference:
https://www.rff.org/publications/explainers/social-cost-carbon-101/
https://19january2017snapshot.epa.gov/climatechange/social-cost-carbon_.html
https://leg.colorado.gov/bills/sb19-236
https://naturalgasefficiency.org/for-residential-customers/heating_system_emissions/
https://www.eia.gov/consumption/residential/data/2015/c&e/pdf/ce6.1.pdf
Part 2:
Exterior Energy Use Regulations
Title: Renewable Energy offset requirements for exterior pools, spas, and snowmelted
hardscape areas
What is the requirement?
In 2006, Eagle County adopted the Eco-Build regulations which included exterior energy use
regulations for energy-intensive amenities such as snowmelt, spas, and pools. The regulations
required such uses to be offset by at least 50% of the energy required to operate them from
renewable energy resources generated on-site. The regulations also allowed for a fee-in-lieu
option where all fees collected are then distributed back into the community for energy efficiency
/ renewable energy incentives and grants.
Since this time, the City of Aspen and Pitkin County have made amendments to similar
provisions in their codes based on nexus studies showing higher energy use than originally
calculated. For example, the current assumption for snowmelt energy use is 34,425 BTUs / ft2
which was originally based on a nexus study aligned with Pitkin County. Their most recent
study shows snowmelt using on average 82,863 BTUs / ft2, more than double the previous (and
our current) assumption.
Also, the current fee-in-lieu amounts are based on the cost of natural gas to operate the amenity
over 10 years based on commodity prices in 2006, when the original regulations were adopted.
Rather than having a nexus based on cost of operation, perhaps a more appropriate nexus to
base, calculate the cost of an impact or the mitigation thereof might be the cost of installing
solar as an offset, which many property owners typically do to both avoid the fee and realize the
associated energy production benefits. This cost comparison should be allowed to update
automatically based on the average installed cost of solar in Holy Cross Energy service territory
on a per-kilowatt basis. This way, there is cost parity regardless if whether the property owner
would prefer to install solar directly on the home, or pay the fee-in-lieu. As is currently the case,
fees collected would go to a separate committed fund to be used to offset energy use elsewhere
in the community; currently such funds go to support rebates in the Energy Smart program
16
which has demonstrated leverage of 10 to 1 as it pertains to private investment and rebate
incentives, respectively.
To update our regulations to this new nexus study and align with Pitkin County, it is
recommended that our snowmelt energy use assumptions be changed from 34,425 BTUs / ft 2 to
82,863 BTUs / ft2.
How or why does this help?
This adjustment in BTUs provides for a more accurate comparison of average use of such
amenities in our climate. Also, it is recommended that the fee-in-lieu be amended to be based
on the average gross cost of solar as reported by Holy Cross Energy for distributed solar
installed in their service territory on an annual basis. This provides parity for cost of offsetting
the energy use on-site, where the funds collected would be dedicated to supporting energy
efficiency and renewable energy projects with a priority toward low-income households
elsewhere in Eagle County.
Applying this model to a 2200 ft2 snowmelted driveway (where 200 ft2 is currently exempt) would
yield the following:
2,000 ft2 x 82,863 BTUs / ft2 = 165,726,000 BTUs
165,726,000 / 3412 BTUs per kwh = 48,572 kwh
48,572 times 50% offset requirement = 24,286 kwh required to be offset with renewable energy
Solar = 1550 kwh per year per kw of installed panels
24,286 divided by 1550 kwh / kw solar = 15.7 kw of solar which would need to be installed.
Cost estimate of installing 15.7 kw of solar at average gross cost of $3,000 per kw = $47,100
($47,100 less 30% federal solar tax credit if applicable to the property owner = $32,970)
Fee in lieu would be based on same cost of offsetting snowmelt through solar at $3,000 per kw.
Fee = 15.7 kw times $3,000 / kw = $47,100.
This change would be an increase from the current cost estimate of offset of a 6-kw system at
$18,000 or fee in lieu of $16 / ft2 = $32,000.
2200 ft2 snowmelt example Current regulations Proposed
Solar offset $ $18,000 $47,100
Fee-in-lieu $32,000 $47,100
17
As proposed, the average installed cost of solar would be adjusted every three years based on
residential average installed cost numbers from Holy Cross Energy within their service territory.
If the cost of solar continues to go down, so would the offset cost and/or fee-in-lieu. Also, PV
system performance is determined based on www.pvwatts.com, which takes system design and
panel angle / azimuth to determine performance and associated energy use offset specific to
system geographical location. Also, proportional offsets which may not exempt a fee in its
entirety, but in part would be accepted and calculated accordingly.
Pools and hot tubs are required to have a cover and a proper location for cover storage.
Snowmelt requires R-5 insulation beneath the snowmelt tubing, controllers that only operate on
presence of moisture AND temperature conditions.
18
4. Title: Install electric capacity to accommodate future electric heating and electric
vehicle charging needs.
What is the requirement?
Provide a minimum 200 amp all-in-one solar ready electric service panel for all new residential
properties to ensure future electrification of heating systems and vehicles can be supported.
Provide a minimum number of EV Capable, EV Ready, and EVSE equipped parking spaces in
all new construction for commercial, residential, and multi-family developments.
How does this help?
As new homes are built, regardless if they are installing efficient electric heating equipment or
electric vehicle chargers, they should be incorporating adequate service and circuit board
capacity to accommodate electric heating and at-home electric vehicle charging, which could
become costly and/or prohibitive as a retrofit item. Rather than requiring net-zero homes, we
should ensure any newly built building has the capability of being a future net-zero home with
minimum retrofit costs incurred on the owner. An average Level 2 EV charger pulls between 32-
40 amps during charging and a 6-9 kW PV system will back feed approximately 40 amps into
the panel. With a solar ready panel you separate the back fed amperage from the amps pulled
for operation of electrical systems in the home, providing more amps for charging and all-
electric heating and hot water.
Installation of electrical service and rough in for conduit as part of new construction can
drastically lower the cost of installation as compared to additional electric capacity as a remodel
or retrofit. Also, encouraging incorporation of EV charging hardware and capacity to support EV
use can remove the internal combustion engine from the home, which is another source of
indoor air pollution, carbon monoxide poisoning, and flammable / explosive fuel source.
Cost Impact
A lack of pre-existing EV charging infrastructure, such as electrical panel capacity, raceways,
and pre-wiring,can make the installation of a new charging station cost-prohibitive for a potential
EV-owner or station site host. The installation of an EV charging station is made three to four
times less expensive when the infrastructure is installed during the initial construction phase as
opposed to retrofitting existing buildings to accommodate the new electrical equipment. These
additional retrofit costs typically include labor expenses for demolition, trenching and boring,
balancing the circuits, and new permitting costs.
New residential and commercial buildings are constructed to last for decades, and so it is critical
that EV charging infrastructure is incorporated at the pre-construction stage to ensure that new
buildings can accommodate the charging needs of future EV-owners.
19
The code change proposal will increase the cost of initial construction, but provide long-term
savings for EV owners and charging station hosts through the avoided retrofit costs of installing
EV charging infrastructure.
One- and two- family dwellings: The additional costs should be minimal as the current code
already requires panel capacity and conduit. They would involve the installation of one 40-
ampere, 208/240-volt dedicated branch circuit and a circuit terminating in a receptacle, junction
box, or EVSE.
Multi-family residential and commercial:
● The cost of making a parking space EV Capable during new construction is estimated at
$300 per space.
● The cost of retrofitting a parking space to be EV Capable is estimated at $2,500.
● The cost of making a parking space EV Ready during new construction is estimated at
$1,300 per space.
● The cost of retrofitting a parking space to be EV Ready is estimated at $6,300.
(Energy Solutions).
The overall impact on building costs is low. An analysis done by the California Air Resources
Board in 2018, examined the costs of adding EV Ready requirements for new multi-family
developments. It found that adding panel capacity and conduit during new construction would
add between 0.1% and 0.2% to the total building cost for 1,500 square foot units (California Air
Resources Board).
Code language:
COMMERCIAL ENERGY EFFICIENCY
SECTION C405: ELECTRICAL POWER AND LIGHTING SYSTEMS
C405.10. Electric Vehicle (EV) charging for new construction and Level 3 Alterations
The building shall be provided with electric vehicle charging in accordance with this section and
the National Electrical Code (NFPA 70). When parking spaces are added or modified without
an increase in building size or a Level 3 Alteration, only the new parking spaces are subject to
this requirement
C405.10.1. Group R occupancies. Group-R occupancies with three or more dwelling units
and/or sleeping units shall be provided with electric vehicle charging in accordance with Table
C405.10.1. Calculations for the number of spaces shall be rounded up to the nearest whole
number. All EVSE Installed, EV Ready and EV Capable Spaces are to be included in the
calculation for the number of minimum vehicle spaces required, as provided by the applicable
article of the <insert town/jurisdiction here> Zoning Code as amended below.
20
Table C405.10.1.
Number of EV
Capable Spaces
Number of EV
Ready Spaces
Number of EVSE
Installed Spaces
1 space None 1 None
2 to 9 spaces None 1 1
10 or more spaces 15% of spaces 10% of spaces 5% of spaces
C405.10.2 Group A, B, E, I, M and S-2 occupancies. Group A, B, E, I, M and open or
enclosed parking garages under S-2 occupancy shall be provided with electric vehicle charging
in accordance with Table C405.10.2. Calculations for the number of spaces shall be rounded up
to the nearest whole number. All EVSE Installed, EV Ready and EV Capable Spaces are to be
included in the calculation for the number of minimum vehicle spaces required, as provided by
the applicable article of the <insert town/jurisdiction here> Zoning Code.
Table C405.10.2.
Number of EV
Capable Spaces
Number of EV
Ready Spaces
Number of EVSE
Installed Spaces
1 space None 1 None
2 to 9 spaces None 1 1
21
10 or more spaces 15% of spaces 10% of spaces 5% of spaces
Exception: The number of electric vehicle supply equipment installed spaces may be reduced
by up to five provided that the building includes not less than one parking space equipped with
an electric vehicle fast charger and not less than one electric vehicle ready space.
C405.10.3. Identification. Construction documents shall designate all electric vehicle capable
spaces, electric vehicle ready spaces and electric vehicle supply equipment installed spaces
and indicate the locations of conduit and termination points serving them. The circuit breakers
or circuit breaker spaces reserved for the electric vehicle capable spaces, electric vehicle ready
spaces, and electric vehicle supply equipment installed spaces shall be clearly identified in the
panelboard directory. The conduit for electric vehicle capable spaces shall be clearly identified
at both the panelboard and the termination point at the parking space.
C405.10.4. Accessible parking
Where new EVSE Installed Spaces and/or new EV Ready Spaces and new accessible parking
are both provided, parking facilities shall be designed so that at least one accessible parking
space shall be EV Ready or EVSE Installed.
CHAPTER 4:
RESIDENTIAL ENERGY EFFICIENCY:
Minimum Electric Service
For electric amp service, install a minimum of 200 amp service with an All in One Solar Ready
Panel for one to two family dwellings or townhouses accessible from the primary breaker box.
The conduit running to the solar-ready panel must be minimum 2 inch pipe.
SECTION R404: ELECTRICAL POWER AND LIGHTING SYSTEMS
R404.2. Electric Vehicle (EV) charging for new construction and Level 3 Alterations
The building shall be provided with electric vehicle charging in accordance with this section and
the National Electrical Code (NFPA 70). When parking spaces are added or modified without
an increase in building size or a Level 3 Alteration, only the new parking spaces are subject to
this requirement.
R404.2.1. One- to two-family dwellings and townhouses.
22
Each dwelling unit with a dedicated attached or detached garage, shall be provided with at least
one electric vehicle ready space. The branch circuit shall be identified as “EV Ready” in the
panelboard directory, and the termination location shall be marked as “EV Ready”.
R404.2.2. Group-R occupancies. Group-R occupancies with three or more dwelling units
and/or sleeping units shall be provided with electric vehicle charging in accordance with Table
R4042.2. Calculations for the number of spaces shall be rounded up to the nearest whole
number. All EVSE Installed, EV Ready and EV Capable Spaces are to be included in the
calculation for the number of minimum vehicle spaces required, as provided by the applicable
article of the <insert town/jurisdiction here> Zoning Code.
Table R404.2.2.
Number of EV
Capable Spaces
Number of EV
Ready Spaces
Number of
EVSE Installed
Spaces
1 space None 1 None
2 to 9 spaces None 1 1
10 or more
spaces
15% of spaces 10% of spaces 5% of spaces
R404.2.3. Identification.
Construction documents shall designate all electric vehicle capable spaces, electric vehicle
ready spaces, and electric vehicle supply equipment installed spaces and indicate the locations
of conduit and termination points serving them. The circuit breakers or circuit breaker spaces
reserved for the electric vehicle capable spaces, electric vehicle ready spaces, and electric
vehicle supply equipment installed spaces shall be clearly identified in the panelboard. The
conduit for electric vehicle capable spaces shall be clearly identified at both the panelboard and
the termination point at the parking space.
R404.2.4. Accessible parking
23
Where new EVSE Installed Spaces and/or new EV Ready Spaces and new accessible parking
are both provided, parking facilities shall be designed so that at least one accessible parking
space shall be EV Ready or EVSE Installed.
Links or Reference:
● http://www.swenergy.org/cracking-the-code-on-ev-ready-building-codes
5. Title: Require 92% or greater efficiency on all new gas equipment
What is the requirement?
Require any new commercial or residential building using gas appliances or heating equipment
to be 92% or greater efficiency. Require any addition or alteration of over 25% of total floor area
replace existing gas equipment with equipment that has an efficiency of 92% or greater
Why or how does this help?
Natural Gas usage in buildings represents 23% of the emissions in Eagle County. A few towns
in Eagle County already require efficient natural gas equipment to be installed for certain
systems. This requirement ensures if any natural gas equipment will be installed in a new
construction project, alteration or addition, it must meet higher efficiency standards. There are
many models with greater than 90% efficiency, and rebates available for high efficiency
equipment which brings the equipment to a cost-parity with less efficient equipment.
Code Language:
Residential Requirement- IRC
[Add section below as amendment for IRC 2015 Section N1103.7]
Section N1103.7.1 Heating Equipment Efficiency. All Gas fired boilers and furnaces shall have a
minimum efficiency of 92 percent AFUE. A condensate riser with trap attached to the drain
system shall be installed close to heating equipment per manufacturer specifications.
Commercial Requirement - IECC
[Replace equipment efficiencies in IECC 2015 Code for Commercial Buildings]
TABLE 403.2.3(4)
WARM-AIR FURNACES AND COMBINATION WARM-AIR FURNACES/AIR-CONDITIONING
UNITS, WARM-AIR DUCT FURNACES AND UNIT HEATERS, MINIMUM EFFICIENCY
REQUIREMENTS
EQUIPMENT
TYPE
SIZE
CATEGORY
(INPUT)
SUBCATEGORY
OR RATING
CONDITION
MINIMUM
EFFICIENCY
TEST
PROCEDURE
Warm-air
furnaces, gas
fired
<225,000 Btu/h - 92% AFUE or
80% Et
DOE 10 CFR
Part 430 or ANSI
Z21.47
24
≥ 225,000 Btu/h Maximum
capacity
80% Et ANSI Z21.47
Warm-air
furnaces oil fired
<225,000 BTU/h - 92% AFUE or
80% Et
DOE 10 CFR
Part 430 or UL
727
≥ 225,000 Btu/h Maximum
capacity
81% Et UL 727
Warm-air duct
furnaces, gas
fired
All capacities Maximum
capacity
80% Et ANSI Z83.8
Warm-air unit
heaters gas fired
All capacities Maximum
capacity
80% Et ANSI Z83.8
Warm-air
heaters, oil fired
All capacities Maximum
capacity
80% Et UL 731
TABLE C403.2.3(5)
MINIMUM EFFICIENCY REQUIREMENTS: GAS- AND OIL-FIRED BOILERS
EQUIPMENT
TYPE
SUBCATEGORY
OR RATING
CONDITION
SIZE CATEGORY
(INPUT)
MINIMUM
EFFICIENCY
TEST
PROCEDURE
Boilers, hot
water
Gas-fired <300,000 Btu/h 92% AFUE 10 CFR Part
430
≥ 300,000 Btu/h
And
≤ 2,500,000 Btu/h
80% Et 10 CFR Part
431
> 2,500,000 Btu/h 82% Et
Oil-fired <300,000 Btu/h 92% AFUE 10 CFR Part
430
≥ 300,000 Btu/h
And
≤ 2,500,000 Btu/h
82% Et 10 CFR Part
431
> 2,500,000 Btu/h 84% Et
Boilers, steam Gas-fired <300,000 Btu/h 75% Et 10 CFR Part
430
25
Gas-fired -all,
except natural
draft
≥ 300,000 Btu/h
And
≤ 2,500,000 Btu/h
79% Et 10 CFR Part
431
> 2,500,000 Btu/h 79% Et
Oil-fired <300,000 Btu/h 92% AFUE 10 CFR Part
430
≥ 300,000 Btu/h
And
≤ 2,500,000 Btu/h
81% Et 10 CFR Part
431
> 2,500,000 Btu/h 81% Et
Links or Reference:
- Town of Avon Municipal Code:
https://library.municode.com/co/avon/codes/home_rule_charter_and_code?nodeId=CD_
TIT15BUCO_CH15.26INENCOCO_15.26.040SEC4BUMESY
- Town of Eagle Municipal Code:
https://library.municode.com/co/eagle/codes/code_of_ordinances?nodeId=COOR_TIT13
BUCO_CH13.04INRECO_S13.04.020AM
26
6. Title: Indoor Water Use Fixture Requirements
What is the requirement?
All new fixtures must be WaterSense Certified products or meet the WaterSense water
efficiency specifications. This includes Residential and Commercial Toilets, Urinals, Bathroom
Faucets, Showerheads, and Pre-Rinse Spray Valves.
The following maximum flow rates for public sinks and public bathroom faucets are required.
Fixture Max Flow Rate
Public Lavatory Sink 0.5 gpm
Public Metered Faucets 0.25 gal/cycle
All new appliances must meet efficiency standards listed in code language section below and
that comply with EnergyStar efficiency ratings.
Why or how does this help?
Promoting efficient use of water in residential and commercial buildings is one of the strategies
listed in the Eagle County Climate Action Plan to both conserve water and conserve energy
used for wastewater treatment. The Colorado River generates $1.4 trillion dollars in economic
benefits annually and protecting river flows is vital to our local economy in Eagle County, CO.
Reducing water use in homes and businesses, (sinks, showers, toilets, appliances) is one of the
best ways to reduce total water usage.
Code language (existing or proposed):
a. Plumbing Fixtures & Fittings: shall comply with the following requirements as listed below.
All fixtures and fittings that are eligible for a WaterSense label are required to be WaterSense
Certified. This includes Residential and Commercial Toilets, Urinals, Bathroom Faucets,
Showerheads, and Pre-Rinse Spray Valves.
I. Public Lavs: Max flow rate of 0.5 gpm
II. Public Metering self-closing faucet: max water use shall not exceed 0.25 gal per
metering cycle
B. Appliances
I. Clothes & Dishwashers shall comply with ENERGY STAR requirements
27
Examples or links:
● WaterSense EPA Products & Specifications:
https://www.epa.gov/watersense/watersense-products
● These standards are mirrored in the LEED Rating System as the maximum flush/flow
requirements for fixtures and fittings.
● They represent a mid-level of water conservation flush/flow rates as compared to an
aggressive maximum flush/flow requirement.
● CALGreen Code: Establishes max flush/flow rates that are more aggressive than the
ones presented here:
http://www.allianceforwaterefficiency.org/Background_on_Green_Building_Specification
s.aspx
● Fort Collins Municipal Code:
https://library.municode.com/co/fort_collins/codes/municipal_code?nodeId=CH5BUBUR
E_ARTVPL
● LA City Ordinance: http://clkrep.lacity.org/onlinedocs/2009/09-0510_ord_180822.pdf
7. Title: Construction Waste Management: Planning & Implementation
What is the requirement?
Part 1: Create a waste management plan that is given to the Building Official prior to the
issuance of a demo or building permit. This plan should identify the C&D materials expected to
be diverted, including the site or recycling center they will be brought to. Materials that will not
be diverted should be included in the plan with the location where those materials will be
landfilled.
Part 2: The contractor should track, to a minimum level, the tonnage of waste diverted from the
project site (by weight or volume) throughout the course of the construction project. Any
28
material that has an end market within Eagle County must be diverted from the landfill
(concrete, concrete with rebar, clean lumber, cardboard, co-mingled, scrap metal).
Part 3: Prior to the issuance of the Certificate of Occupancy, a final Construction Waste
Management plan should be submitted to the building official which denotes the final amount
(by weight or volume) of waste diverted from the project.
Non-Compliance
If a party fails to comply with the requirements of this code mandate, the parties may receive a
fine which must be paid prior to the issuance of CO. The fee can either a flat fee for non-
compliance, or be determined by the total tonnage of construction and demolition waste that is
delivered to the landfill based upon the calculated social cost of carbon and impact on the
landfill from not diverting waste.
Why or how does this help?
Construction and Demolition (C&D) waste is one of the largest annual contributors by tonnage
to the Eagle County Landfill. Much of the waste generated from construction and demolition can
be diverted out of the landfill if construction teams plan from the onset of the project to look at
diversion opportunities.
Municipal solid waste (MSW) landfills are the third-largest source of human-related methane
emissions in the United States. Methane is roughly 30 times more potent as a heat trapping gas
than carbon dioxide. Diversion of C&D waste saves an enormous amount of space in the
landfill. With our business as usual waste diversion practices, our landfill is anticipated to reach
its end of life in 100 years (this will require excavation and filling of full 730 acre site, current
planned excavation will give us 28 years). C&D Waste makes up approximately 20% of our
landfilled material each year, and C&D waste has high resale value as recycled materials,
therefore there is a huge opportunity to increase our C&D waste diverted while reducing
methane emissions and extending the life of our landfill. The Eagle County Climate Action Plan
has a goal of a 30% diversion rate by 2030 therefore emphasizing C&D diversion, which is both
heavy and large in volume, will help us achieve this goal.
Code language (existing or proposed):
A. Construction Waste Management Plan: Prior to issuance of a demo or building permit, a
pre-construction waste management plan shall be submitted to the owner & building
official. The plan must:
1. Identify the C+D waste materials expected to be diverted
2. Determine whether C+D waste materials are going to be source-separated or co-
mingled
3. Identify service providers and designate destination facilities for C+D waste
materials generated at the job site
B. Construction Waste Management Plan Implementation: Throughout construction, the
contractor should track all diverted waste by weight or volume. Any material that has an end
29
market within Eagle County must be diverted from the landfill (concrete, concrete with
rebar, clean lumber, cardboard, co-mingled, scrap metal).
C. Construction Waste Management Final Report: Prior to issuance of a certificate of occupancy
a final construction waste management report shall be submitted to the owner and building
official. The final report must include the total materials diverted from the landfill over the course
of the project (by weight or volume) represented as a percentage of the total waste generated
on the project.
D. If the project fails to comply, a fee will be collected by the AHJ. The fee will be calculated as
follows. The total tonnage of clean lumber and concrete delivered to the landfill will be entered
into the EPA WARM calculator to determine the emissions savings that could have occurred if
the material was diverted.* The total emissions reported in CO2E will be multiplied by the
average Social Cost of Carbon, $46 to determine the total fee.
* If the project does not track the total amount of clean lumber and concrete taken to the landfill,
the project will use 50% of the total tonnage brought to the landfill and apply that number to the
EPA WARM Model
Examples or links:
● Fort Collins Building Code Amendments:
https://www.fcgov.com/building/pdf/greencodes-comm.pdf
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8. Title: Area for Storage & Collection of Recyclables and Discarded Goods
What is the requirement?
Clearly mark on building plans submitted for building permit the location and size of the trash,
recycling, and compost enclosure. Provide a brief description on how the size of the enclosure
was determined. Include the following details in the description; number of building occupants or
dwelling units, the frequency of trash and recycling pick up, and the anticipated volume of waste
generated. At a minimum provide space in the enclosure for one 2-yd dumpster for trash, one 2-
yd dumpster for recycling, and two 32-gallon cart for compost.
Why or how does this help?
One of the largest barriers in implementing recycling or waste diversion programs in commercial
and multi-family developments is lack of space for recycling collection. This requirement would
ensure that space is provided in the trash enclosures for commercial and multi-family buildings
that can support both trash cans, recycling bins, and compost bins. Incorporating recycling
infrastructure early in the design process encourages successful recycling once operation of the
building begins. Well-designed and accessible waste management infrastructure that
anticipates how and where waste will be discarded helps occupants make recycling their default
behavior. Projects would be able to decide on their own if they’d also like those enclosures to
include collection space for compost, durable goods for donation, e-waste, batteries, and lamps.
This recommendation would guarantee that at every building at a minimum, includes MSW
recycling storage space and compost storage space.
The Climate Action Plan for the Eagle County Community sets a community wide goal of 30%
diversion from the landfill by 2030. By ensuring all new development (which means new waste
being created) have storage for recycling and compost we can build in the infrastructure needed
to support this waste diversion goal.
Code language (existing or proposed):
Commercial Buildings
Areas for recyclables and discarded goods shall be provided with the anticipation of collection
services. The area for recycling collection and storage must be shown with the total area of the
space dedicated to storage, indicated on the construction drawings. Space shall be provided at
a minimum to fit two 2-yd dumpsters (trash & recycling) and one 32 gallon cart (compost) for
trash, recycling, and compost.
Multi-Family Buildings (Group R Occupancies of 3 or more dwelling units)
Multi-family buildings must calculate the storage area for trash and recycling using the Eagle
County Multi-Family Calculator. One 32 gallon cart must also be provided for compost.
A short description must be provided with the construction documents which includes the total
number of building occupants and frequency of trash and recycling pickup. The space shall be
determined to be sufficient for trash and recycling storage by the building official in the Authority.
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Examples or links:
● LEED v4 Prerequisite
● City of Fort Collins Building Requirements for Multi-Family
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____________________________________________________
Land Use Regulation Recommendations
9. Title: Light Pollution Reduction
What is the requirement?
A. All outdoor lighting shall be installed in conformance with the provisions of these
requirements, applicable Electrical and Energy Codes, and applicable sections of the
Building Code. This includes but is not limited to, new lighting, replacement lighting, or
any other lighting whether attached to structures, poles, the earth, or any other location,
including lighting installed by a 3rd party.
a. Exceptions: The following are not regulated by this requirement
i. Lighting within public right-of-way or easement for the principal purpose of
illuminating streets or roads. No exemption shall apply to any lighting
within the public right of way or easement when the purpose of the
luminaire is to illuminate areas outside the public right of way or
easement, unless regulated with a street lighting ordinance.
ii. Lighting for public monuments and statuary
iii. Lighting soley for signs
iv. Repairs to existing luminaires not exceeding 25% of total installed
luminaires
v. Temporary lighting for theatrical, television, performance areas and
construction sites
vi. Underwater lighting in swimming pools and other water features
vii. Lighting that is used under emergency conditions
viii. In lighting zones 2, 3, 4, low-voltage landscape lighting controlled by an
automatic device that is set to turn the lights off at one hour after the site
is closed to the public or at a time established by the authority.
Why or how does this help?
The purpose of this recommendation is to provide regulations for outdoor lighting that will:
a. Permit the use of outdoor lighting that does not exceed the minimum levels specified
in IES recommended practices for night-time safety, utility, security, productivity,
enjoyment, and commerce.
b. Minimize adverse offsite impacts of lighting such as light trespass, and obtrusive light.
c. Curtail light pollution, reduce skyglow and improve the nighttime environment for
astronomy.
d. Help protect the natural environment from the adverse effects of night lighting from
gas or electric sources.
e. Conserve energy and resources to the greatest extent possible.
Code Language Existing or Proposed
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A. All outdoor lighting shall be installed in conformance with the provisions of these
requirements, applicable Electrical and Energy Codes, and applicable sections of the
Building Code. This includes but is not limited to, new lighting, replacement lighting, or
any other lighting whether attached to structures, poles, the earth, or any other location,
including lighting installed by a 3rd party.
a. Exceptions: The following are not regulated by this requirement
i. Lighting within public right-of-way or easement for the principal purpose of
illuminating streets or roads. No exemption shall apply to any lighting
within the public right of way or easement when the purpose of the
luminaire is to illuminate areas outside the public right of way or
easement, unless regulated with a streetlighting ordinance.
ii. Lighting for public monuments and statuary
iii. Lighting soley for signs
iv. Repairs to existing luminaires not exceeding 25% of total installed
luminaires
v. Temporary lighting for theatrical, television, performance areas and
construction sites
vi. Underwater lighting in swimming pools and other water features
vii. Lighting that is used under emergency conditions
viii. In lighting zones 2, 3, 4, low-voltage landscape lighting controlled by an
automatic device that is set to turn the lights off at one hour after the site
is closed to the public or at a time established by the authority.
General Requirements
Lighting Controls
1. Automatic Switching Requirements: Controls shall be provided that automatically
extinguish all outdoor lighting when sufficient daylight is available using a control device
or system such as a photoelectric switch, astronomic time switch or equivalent functions
from a program- mable lighting controller, building automation system or lighting energy
management system, all with battery or similar backup power or device.
a. Exceptions:
i. Automatic lighting controls are not required for the following: a. Lighting
under canopies.
ii. Lighting for tunnels, parking garages, garage entrances, and similar
conditions
2. Automatic Lighting Reduction Requirements: The Authority shall establish curfew time(s)
after which total outdoor lighting lumens shall be reduced by at least 30% or
extinguished.
a. Exceptions: Lighting reductions are not required for any of the following:
i. With the exception of landscape lighting, lighting for residential properties
including multiple residential properties not having common areas.
ii. When the outdoor lighting consists of only one luminaire.
iii. Code required lighting for steps, stairs, walkways, and building entrances.
iv. When in the opinion of the Authority, lighting levels must be maintained.
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v. Motion activated lighting.
vi. Lighting governed by special use permit in which times of operation are
specifically identified.
vii. Businesses that operate on a 24 hour basis.
For all non-residential properties, and for multiple residential properties of seven domiciles or
more and having common outdoor areas, all outdoor lighting shall comply either with Part A or
Part B of this section.
Non-Residential Requirements
Part A. Prescriptive Method
An outdoor lighting installation complies with this section if it meets the requirements of
subsections 1 and 2, below.
1. Total Site Lumen Limit:
- The total installed initial luminaire lumens of all outdoor lighting shall not exceed
the total site lumen limit. The total site lumen limit shall be determined using
either the Parking Space Method (Table A) or the Hardscape Area Method
(Table B). Only one method shall be used per permit application, and for sites
with existing lighting, existing lighting shall be included in the calculation of total
installed lumens. The total installed initial luminaire lumens is calculated as the
sum of the initial luminaire lumens for all luminaires.
Table A - Allowed Total Initial Luminaire Lumens per Site for Non-Residential Outdoor
Lighting, per parking space Method
Only applicable to properties with up to 10 parking spaces, including handicapped accessible
spaces.
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
350 lms/space 490 lms/space 630 lms/space 840 lms/space 1,050 lms/space
Table B - Allowed Total Initial Lumens per Site for Non-residential Outdoor Lighting,
Hardscape Area Method
May be used for any project. When lighting intersections of site drives and public streets or
road, a total of 600 square feet for each intersection may be added to the actual site hardscape
area to provide for intersection lighting.
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Base Allowance
0.5 lumens per 1.25 lumens per 2.5 lumens per 5.0 lumens per 7.5 lumens per
35
sf of hardscape sf of hardscape sf of hardscape sf of hardscape sf of hardscape
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Additional allowances for sales and service facilities. No more than two additional allowances
per site, Use it or Lose it.
Outdoor Sales Lot. This
allowance is lumens per
square foot of undercovered
sales lots used exclusively for
the display of vehicles or other
merchandise for sale and may
not include driveways, parking
or other non-sale areas. To sue
this allowance, luminaires must
be within 2 mounting heights of
sales lot area
0 4 lumens
per sf
8 lumens
per sf
16 lumens
per sf
16 lumens
per sf
Outdoor Sales Frontage. This
allowance is for lineal feet (LF)
of sales frontage immediately
adjacent to the principal
viewing location(s) and
unobstructed for its viewing
length. A corner sales lot may
include two adjacent sides
provided that a different
principal viewing location exists
for each side. In order to use
this allowance, luminaires must
be located between the
principal viewing location and
the frontage outdoor sales area
0 0 1,000 per
LF
1,5000
per LF
2,000 per
LF
Drive Up Windows. In order to
use this allowance, luminaires
must be within 20 feet
horizontal distance of the
center of the window.
0 2,000
lumens
per drive-
up window
4,000
lumens
per drive-
up
window
8,000
lumens
per drive-
up window
8,000
lumens per
drive-up
window
Vehicle Service Station. This
allowance is lumens per
installed fuel pump.
0 4,000
lumens
per pump
(based on
5 fc horiz)
8,000
lumens
per pump
(based on
10 fc
horiz
16,000
lumens
per pump
(based on
20 fc
horiz)
24,000
lumens per
pump
based on
20 fc horiz)
36
A. Limits to Off Site Impacts: All luminaires shall be rated and installed according to Table
C.
B. Light Shielding for Parking Lot Illumination: All parking lot lighting shall have no light
emitted above 90 degrees.
a. Exception:
i. Ornamental parking lighting shall be permitted by special permit only, and
shall meet the requirements of Table C-1 for Backlight, Table C-2 for
Uplight, and Table C-3 for Glare, without the need for external field-added
modifications.
Table C - Maximum Allowable Backlight, Uplight, and Glare (BUG) Ratings
May be used for any project. A luminaire may be used if it is rated for the lighting zone of the
site or lower in number for all ratings B, U and G. Luminaires equipped with adjustable mounting
devices permitting alteration of luminaire aiming in the field shall not be permitted.
Table C-1
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Allowed Backlight Rating*
Greater than 2 mounting heights
from property line
B1 B3 B4 B5 B4
1 to less than 2 mounting heights
from property line and ideally
oriented**
B1 B2 B3 B4 B4
0.5 to 1 mounting heights from
property line and ideally oriented**
B0 B1 B2 B3 B3
Less than 0.5 mounting height to
property line and properly
oriented**
B0 B0 B0 B1 B2
*For property lines that abut public walkways, bikeways, plazas, and parking lots, the property
line may be considered to be 5 feet beyond the actual property line for purpose of determining
compliance with this section. For property lines that abut public roadways and public transit
corridors, the property line may be considered to be the center- line of the public roadway or
public transit corridor for the purpose of determining compliance with this section. NOTE: This
adjustment is relative to Table C-1 and C-3 only and shall not be used to increase the lighting
area of the site.
** To be considered 'ideally oriented', the luminaire must be mounted with the backlight portion
of the light output oriented perpendicular and towards the property line of concern.
Table C-2 - Maximum Allowable Uplight (BUG) Ratings
37
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Allowed Uplight Rating U0 U1 U2 U3 U4
Allowed % light emission above
90 degrees for street or Area
lighting
0% 0% 0% 0% 0%
Table C-3 - Maximum Allowable Glare (BUG) Ratings
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Allowable Glare Rating G0 G1 G2 G3 G4
Any luminaire not ideally
oriented*** with 1 to less than 2
mounting heights to any
property line of concern
G0 G0 G1 G1 G2
Any luminaire not ideally
oriented*** with 0.5 to 1
mounting heights to any
property line of concern
G0 G0 G0 G1 G1
Any luminaire not ideally
oriented*** with less than 0.5
mounting heights to any
property line of concern
G0 G0 G0 G0 G1
*** Any luminaire that cannot be mounted with its backlight perpendicular to any property line
within 2X the mounting heights of the luminaire location shall meet the reduced Allowed Glare
Rating in Table C-3.
Part B. Performance Method
1. 1. Total Site Lumen Limit
a. The total installed initial luminaire lumens of all lighting systems on the site shall
not exceed the allowed total initial site lumens. The allowed total initial site
lumens shall be determined using Tables D and E. For sites with existing lighting,
existing lighting shall be included in the calculation of total installed lumens.
The total installed initial luminaire lumens of all is calculated as the sum of the initial luminaire
lumens for all luminaires.
Table D - Performance Method Allowed Total Initial Site Lumens
May be used on any project
38
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Allowed Lumens per SF 0.5 1.25 2.5 5.0 7.5
Allowed Base Lumens per
Site
0 3,500 7,000 14,000 21,000
Table E - Performance Method Additional Initial Luminaire Lumen Allowances. All of the
following are “use it or lose it” allowances
All area and distance measurements in plan view unless otherwise noted.
Lighting Application LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Additional lumens allowances for all buildings except service stations and outdoor sales
facilities. A MAXIMUM OF THREE (3) ALLOWANCES ARE PERMITTED.THESE
ALLOWANCES ARE “USE IT OR LOSE IT”
Building entrances or exits. This allowance is
per door. In order to use this allowance,
luminaires must be within 20 feet of the door.
400 1,000 2,000 4,000 6,000
Building Facades. This allowance is lumens per
unit area of building façade that are illuminated.
To use this allowance, luminaires must be aimed
at the façade and capable of illuminating it
without obstruction
0 0 8/sf 16/sf 24/sf
Sales or Non-sales Canopies. This allowance
is lumens per unit area for the total area within
the drip line of the canopy. In order to qualify for
this allowance, luminaires must be located under
the canopy.
0 3/sf 6/sf 12/sf 36/sf
Guard Stations. This allowance is lumens per
unit area of guardhouse plus 2000 sf per vehicle
lane. In order to use this allowance, luminaires
must be within 2 mounting heights of a vehicle
lane or the guardhouse.
0 6/sf 12/sf 24/sf 36/sf
Outdoor Dining. This allowance is lumens per
unit area for the total illuminated hardscape of
outdoor dining. In order to use this allowance,
luminaires must be within 2 mounting heights of
the hardscape area of outdoor dining
0 1/sf 5/sf 10/sf 15/sf
Drive Up Windows. This allowance is lumens
per window. In order to use this allowance,
luminaires must be within 20 feet of the center of
0 2,000
lumen
s per
4,000
lumen
s per
8,000
lumen
s per
8,000
lumens
per
39
the window windo
w
windo
w
windo
w
windo
w
Additional lumens allowance for service station only. Service stations may not use any other
additional allowances.
Vehicle Service Station Hardscape. This
allowance is lumens per unit area for the total
illuminated hardscape area less area of
buildings, area under canopies, area off property,
or areas obstructed by signs or structures. In
order to use this allowance, luminaires must be
illuminating the hardscape area and must not be
within a building, below a canopy, beyond
property lines, or obstructed by a sign or other
structure.
0 4/sf 8/sf 16/sf 24/sf
Vehicle Service Station Canopies. This
allowance is lumens per unit area for the total
area within the drip line of the canopy. In order to
use this allowance, luminaires must be located
under the canopy.
0 8/sf 16/sf 32/sf 32/sf
Additional lumens allowances for outdoor sales facilities only.
Outdoor sales facilities may not sue any other additional allowances. NOTICEL lighting
permitted by these allowances shall employ controls extinguishing this lighting after a curfew
time to be determined by the Authority.
Outdoor Sales Lots. This allowance is lumens
per square foot of uncovered sales lots used
exclusively for the display of vehicles or other
merchandise for sale, and may not include
driveways, parking or other non sales areas and
shall not exceed 25% of the total hardscape
area. To use this allowance, Luminaires must be
within 2 mounting heights of the sales lot area.
0 4/sf 8/sf 12/sf 18/sf
Outdoor Sales Frontage. This allowance is for
lineal feet of sales frontage immediately adjacent
to the principal viewing location(s) and
unobstructed for its viewing length. A corner
sales lot may include two adjacent sides
provided that a different principal viewing
location exists for each side. In order to use this
allowance, luminaires must be located between
the principal viewing location and the frontage
outdoor sales area.
0 0 1,000
/LF
1,500/
LF
2,000/
LF
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1. Limits to Off Site Impacts: All luminaires shall be rated and installed using either Option
A or Option B. Only one option may be used per permit application.
a. Option A: All luminaires shall be rated and installed according to Table C.
b. Option B: The entire outdoor lighting design shall be analyzed using industry
standard lighting software including interreflections in the following manner:
i. Input data shall describe the lighting system including luminaire locations,
mounting heights, aiming directions, and employing photometric data
tested in accordance with IES guidelines. Buildings or other physical
objects on the site within three object heights of the property line must be
included in the calculations.
ii. Analysis shall utilize an enclosure comprised of calculation planes with
zero reflectance values around the perimeter of the site. The top of the
enclosure shall be no less than 33 feet (10 meters) above the tallest
luminaire. Calculations shall include total lumens upon the inside surfaces
of the box top and vertical sides and maximum vertical illuminance
(footcandles and/or lux) on the sides of the enclosure.
The design complies if:
a) The total lumens on the inside surfaces of the virtual enclosure are less than 15% of the total
site lumen limit; and
b) The maximum vertical illuminance on any vertical surface is less than the allowed maximum
illuminance per Table F.
Table F - Maximum Vertical Illuminance at any point in the plane of the property line
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
0.5 FC or 0.5
LUX
0.1 FC or 1.0
LUX
0.3 FC or 3.0
LUX
0.8 FC or 8.0
LUX
1.5 FC or 15.0
LUX
Residential Requirements
A. General Requirements: For residential properties including multiple residential properties
not having common areas, all outdoor luminaires shall be fully shielded and shall not
exceed the allowed lumen output in Table G, row 2.
a. Exceptions:
i. One partly shielded or unshielded luminaire at the main entry, not
exceeding the allowed lumen output in Table G row 1.
ii. Any other partly shielded or unshielded luminaires not exceeding the
allowed lumen output in Table G row 3.
iii. Low voltage landscape lighting aimed away from adjacent properties and
not exceeding the allowed lumen output in Table G row 4.
41
iv. Shielded directional flood lighting aimed so that direct glare is not visible
from adjacent properties and not exceeding the allowed lumen output in
Table G row 5.
v. Open flame gas lamps.
vi. Lighting installed with a vacancy sensor, where the sensor extinguishes
the lights no more than 15 minutes after the area is vacated.
vii. Lighting exempt per Section III (B.).
B. Requirements for Residential Landscape Lighting
a. Shall comply with Table G.
b. Shall not be aimed onto adjacent properties.
Table G - Residential Lighting Limits
LZ-0 LZ-1 LZ-2 LZ-3 LZ-4
Row 1 Maximum Allowed
Luminaire Lumens* for Unshielded
Luminaires at one entry only
Not
Allowed
420
lumens
630
lumens
630
lumens
630
lumens
Row 2 Maximum Allowed
Luminaire Lumens* for each Fully
Shielded Luminaire
630
lumens
1,260
lumens
1,260
lumens
1,260
lumens
1,260
lumens
Row 3 Maximum Allowed
Luminaire Lumens* for each
Unshielded Luminaire excluding
main entry
Not
Allowed
315
lumens
315
lumens
315
lumens
315
lumens
Row 4 Maximum Allowed
Luminaire Lumens* for each
Landscape Lighting
Not
Allowed
Not
Allowed
1,050
lumens
2,100
lumens
2,100
lumens
Row 5 Maximum Allowed
Luminaire Lumens* for each
Shielded Directional Flood Lighting
Not
Allowed
Not
Allowed
1,260
lumens
2,100
lumens
2,100
lumens
Row 6 Maximum Allowed
Luminaire Lumens* for each Low
Voltage Landscape Lighting
Not
Allowed
Not
Allowed
525
lumens
525
lumens
525
lumens
* Luminaire lumens equals Initial Lamp Lumens for a lamp, multiplied by the number of
lamps in the luminaire
Lighting By Special Permit Only
High Intensity and Special Purpose Lighting
a. The following lighting systems are prohibited from being installed or used except by
special use permit:
42
i. Temporary lighting in which any single luminaire exceeds 20,000 initial luminaire
lumens or the total lighting load exceeds 160,000 lumens.
ii. Aerial Lasers.
iii. Searchlights.
iv. Other very intense lighting defined as having a light source exceeding 200,000
initial luminaire lumens or an intensity in any direction of more than 2,000,000
candelas.
Complex & Non-Conforming Uses
b. Upon special permit issued by the Authority, lighting not complying with the technical
requirements of this ordinance but consistent with its intent may be installed for complex
sites or uses or special uses including, but not limited to, the following applications:
i. Sports facilities, including but not limited to unconditioned rinks, open courts,
fields, and stadiums.
ii. Construction lighting.
iii. Lighting for industrial sites having special requirements, such as petrochemical
manufacturing or storage, shipping piers, etc.
iv. Parking structures.
v. Urban parks
vi. Ornamental and architectural lighting of bridges, public monuments, statuary and
public buildings.
vii. Theme and amusement parks.
viii. Correctional facilities
To obtain such a permit, applicants shall demonstrate that the proposed lighting installation:
A. Has sustained every reasonable effort to mitigate the effects of light on the environment
and surrounding properties, supported by a signed statement describing the mitigation
measures. Such statement shall be accompanied by the calculations required for the
Performance Method.
B. Employs lighting controls to reduce lighting at a Project Specific Curfew (“Curfew”) time
to be established in the Permit.
C. Complies with the Performance Method after Curfew
The Authority shall review each such application. A permit may be granted if, upon review, the
Authority believes that the proposed lighting will not create unwarranted glare, sky glow, or light
trespass.
Existing Lighting
Lighting installed prior to the effective date of this ordinance shall comply with the following.
A. Amortization: On or before (amortization date), all outdoor lighting shall comply with this
Code
B. New Uses or Structures, or Change of Use: Whenever there is a new use of a property
(zoning or variance change) or the use on the property has changed, all outdoor lighting
on the property shall be brought into compliance with these requirements before the new
or changed uses commences.
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C. Additions or Alterations:
a. Major Additions: If a major addition occurs on a property, lighting for the entire
property shall comply with the requirements of this Code. For the purposes of this
section, the following are considered to be major additions:
i. Additions of 25 percent or more in terms of additional dwelling units,
gross floor area, seating capacity, or parking spaces, either with a single
addition or with cumulative additions after the effective date of this
Ordinance.
ii. Single or cumulative additions, modification or replacement of 25 percent
or more of installed outdoor lighting luminaires existing as of the effective
date of this Ordinance.
b. Minor Modifications, Additions, or New Lighting Fixtures for Non-residential and
Multiple Dwellings
i. For non-residential and multiple dwellings, all additions, modifications, or
replacement of more than 25 percent of outdoor lighting fixtures existing
as of the effective date of this Ordinance shall require the submission of a
complete inventory and site plan detailing all existing and any proposed
new outdoor lighting.
ii. Any new lighting shall meet the requirements of this Ordinance
c. Resumption of Use after Abandonment
i. If a property with non-conforming lighting is abandoned for a period of six
months or more, then all outdoor lighting shall be brought into compliance
with this Ordinance before any further use of the property occurs.
Examples or Links
- User Guide MLO Model Ordinance: https://www.darksky.org/wp-content/uploads/bsk-
pdf-manager/16_MLO_FINAL_JUNE2011.PDF
- LEED Light Pollution Reduction Best Practices
https://www.usgbc.org/node/11963317?return=/credits
- Town of Eagle Draft Lighting Ordinance:
https://www.townofeagle.org/DocumentCenter/View/5130/MLO-Ordinance-08-17-
2012?bidId=
- https://www.accessfixtures.com/what-is-bug-rating-and-why-does-it-matter/
- https://blog.1000bulbs.com/home/how-is-a-bug-rating-calculated
- https://www.ies.org/wp-content/uploads/2017/03/TM-15-11BUGRatingsAddendum.pdf
- https://codes.iccsafe.org/content/IGCC2018/chapter-5-site-sustainability
Lighting Zones
Zone Recommended Uses or Areas Zoning Considerations
LZ-0 Lighting Zone 0 should be applied to areas in which
permanent lighting is not expected and when used, is
Recommended default zone
for wilderness areas, parks
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limited in the amount of lighting and the period of
operation. LZ-0 typically includes undeveloped areas
of open space, wilderness parks and preserves, areas
near astronomical observatories, or any other area
where the protection of a dark environment is critical.
Special review should be required for any permanent
lighting in this zone. Some rural communities may
choose to adopt LZ-0 for residential areas.
and preserves, and
undeveloped rural areas.
Includes protected wildlife
areas and corridors.
LZ-1 Lighting Zone 1 pertains to areas that desire low
ambient lighting levels. These typically include single
and two family residential communities, rural town
centers, business parks, and other commercial or
industrial/ storage areas typically with limited
nighttime activity. May also include the developed
areas in parks and other natural settings.
Recommended default zone
for rural and low density
residential areas.
Includes residential single or
two family; agricultural zone
districts; rural residential zone
districts; business parks;
open space include
preserves in developed
areas.
LZ-2 Lighting Zone 2 pertains to areas with moderate
ambient lighting levels. These typically include
multifamily residential uses, institutional residential
uses, schools, churches, hospitals, hotels/motels,
commercial and/or businesses areas with evening
activities embedded in predominately residential
areas, neighborhood serving recreational and playing
fields and/or mixed use development with a
predominance of residential uses. Can be used to
accommodate a district of outdoor sales or industry in
an area otherwise zoned LZ-1.
Recommended default zone
for light commercial business
districts and high density or
mixed use residential
districts.
Includes neighborhood
business districts; churches,
schools and neighborhood
recreation facilities; and light
industrial zoning with modest
nighttime uses or lighting
requirements.
LZ-3 Lighting Zone 3 pertains to areas with moderately
high lighting levels. These typically include
commercial corridors, high intensity suburban
commercial areas, town centers, mixed use areas,
industrial uses and shipping and rail yards with high
night time activity, high use recreational and playing
fields, regional shopping malls, car dealerships, gas
stations, and other nighttime active exterior retail
areas.
Recommended default zone
for large cities' business
district.
Includes business zone
districts; commercial mixed
use; and heavy industrial
and/or manufacturing zone
districts.
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LZ-4 Lighting zone 4 pertains to areas of very high ambient
lighting levels. LZ-4 should only be used for special
cases and is not appropriate for most cities. LZ-4 may
be used for extremely unusual installations such as
high density entertainment districts, and heavy
industrial uses.
Not a default zone. Includes
high intensity business or
industrial zone districts.
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10. Title: Sensitive Site Setback
What is the requirement?
Prohibited Development Activity: There should be no site disturbance or development of the
following:
a. Previously undeveloped land having an elevation of lower than five feet above the
elevation of the 100-year floodplain
b. Land within 75 feet of any fish and wildlife Habitat (see definitions)
c. Land within 75 feet of any wetland (see definitions)
Exception: If the site is previously developed, a 25 ft. buffer must be restored from the edge of
the areas listed above. This area must be restored with native plants from the riparian area in
question. This area must be restored with native and biodiverse plantings that support the
habitat where the setback is located, and must not require permanent irrigation after the
establishment period for the plants.
Why or how does this help?
Many of the communities in Eagle County already have setback requirements for new
construction. This requirement would standardize a setback across all communities for all flood
plains, riparian habitat zones, and/or wetlands. This standardized setback ensures that no one
community is promoting closer access to these sensitive areas than another. In addition, this
requirement would prohibit any development within the 75-foot buffer if previously undisturbed.
If the site was previously developed, a space within 25ft of the edge of the river, habitat zone, or
wetland must be restored to natural state of similar undisturbed surrounding areas using
native/appropriate plantings. Setbacks are imperative to water quality and stream health, as
they allow for storm-water runoff to infiltrate and filter prior to entering a river or stream.
Additionally, the preservation of, or restoration to, a natural riparian state encourages a healthy
aquatic habitat and biodiversity. Leaving native vegetation in place, or using it to restore a
disturbed area, creates habitat, removes the need for permanent irrigation systems and
contributes to the structural integrity of a stream bank or riparian area.
Code language (existing or proposed):
Prohibited Development Activity: There should be no site disturbance or development of the
following:
d. Previously undeveloped land having an elevation of lower than five feet above the
elevation of the 100-year floodplain
e. Land within 75 feet of any fish and wildlife habitat conservation area
f. Land within 75 feet of any wetland
Exception: If the site is previously developed, a 25 ft buffer must be restored from the edge of
the areas listed above. This area must be restored with native plants from the riparian area in
question. This area must be restored with native and biodiverse plantings that support the
habitat where the setback is located, and must not require permanent irrigation after the
establishment period for the plants.
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Examples or links:
- https://www.usgbc.org/node/2758192?return=/credits
- https://www.epa.gov/nps/urban-runoff-model-ordinances-aquatic-buffers
- ERWC recommended set back from rivers and wetlands
- https://www.vailgov.com/docs/dl_forms/Streamsetbacks_revised_2008_August14.pdf
- https://msc.fema.gov/portal/home
- https://map.eaglecounty.us/GIS_Viewer_Engineering/
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11. Title: Adoption of Northwest Colorado Council of Governments Model Water
Efficiency Ordinance
What is the requirement?
Align Water Efficient Landscape regulations with those in the Northwest Colorado Council of
Governments Model Water Efficiency Code.
Why or how does this help?
The purpose and intent of water-efficient landscape requirements is to promote a regionally and
site appropriate, sustainable, and resilient landscape. The standards outlined in this section are
intended to achieve the following objectives:
● Extend water supply and water infrastructure by enhancing efficiency.
● Protection of Eagle County’s natural landscapes and habitats through incorporation of
native plants and natural landscapes.
● Reduction in peak season water demand and per capita usage through site design
standards and the application of irrigation water budgets.
● Reduction of stormwater runoff and impervious surfaces through the integration of LID
principles.
● Reduction of wildfire risks in fire-prone zones through incorporation of defensible space
principles.
● Elimination of outdoor water waste.
● Promotion of energy efficiency within landscape design.
● Enhancement of the quality of the urban environment through promotion of well-
designed landscapes.
Code language (existing or proposed):
[NOTE THIS IS CURRENTLY IN DRAFT FORM FROM NWCOGG - THE FINAL
VERSION WILL BE INCORPORATED WHEN FINALIZED]
General Provisions
A. Purpose and Objectives
The purpose and intent of water-efficient landscape requirements is to promote a regionally and
site appropriate, sustainable, and resilient landscape. The standards outlined in this section are
intended to achieve the following objectives: <select appropriate objectives from list>
● Extend water supply and water infrastructure by enhancing efficiency.
● Protection of <jurisdiction’s> natural landscapes and habitats through incorporation of
native plants and natural landscapes.
● Reduction in peak season water demand and per capita usage through site design
standards and the application of irrigation water budgets.
● Reduction of stormwater runoff and impervious surfaces through the integration LID
principles.
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● Reduction of wildfire risks in fire-prone zones through incorporation of defensible space
principles.
● Elimination of outdoor water waste.
● Promotion of energy efficiency within landscape design.
● Enhancement of the quality of the urban environment through promotion of well-
designed landscapes.
B. Applicability
Landscaping requirements shall apply to <select and define appropriate for local context>:
1. New Development. All new nonresidential, multifamily and residential projects
<alternatively add threshold criteria: with a site disturbance area greater than 1,000
square feet or 25 percent of the lot>.
2. Existing Development. Projects that meet the following criteria:
1. Projects requiring a building permit that cumulatively increase square footage by
<insert criteria such as 50 percent or more>.
2. Projects that are a change in use from single-family/duplex to multifamily or
single-family to nonresidential use.
3. Total redevelopment of a lot.
3. All Public Facilities.
C. Exceptions
1. Exceptions. Exemptions shall apply to: <insert relevant to local context>.
a. (e.g. agricultural activities, master planned communities where different design
standards may apply, golf courses, educational institutions, public right of ways,
restoration sites, etc.)
b. (e.g. Any individual detached single-family residence or duplex on its own lot
and not part of a subdivision application.)
2. Existing Compliance. If a project can demonstrate it already meets the minimum water-
efficiency and landscape standards, a request for a determination of compliance may be
made to the <planning department> in writing. The request shall contain:
a. A description of the site, landscape and irrigation system with supporting
materials demonstrating compliance.
b. A water efficient irrigation audit performed by a certified third-party landscape
irrigation auditor.
3. Alternative Compliance. If a development can meet the objectives of this code section
through alternative or creative methods or it is impractical or impossible to comply, an
applicant may request an alternative method of compliance. While not a waiver,
alternative compliance offers options for site-specific design alternatives. The process
includes:
50
a. A pre-submittal conference with <the planning department> to discuss the
request. A written request should be submitted with accompanying rationale and site
map.
b. If approved, the application should include:
1. A description of site conditions, including topography, soils, existing vegetation,
environmental values and identification of limitations.
2. An explanation of methods and techniques in the alternative design and how they
will achieve the desired objectives.
3. The alternative landscape design plan.
D. Definitions
Definitions of technical terms used in this chapter are in the glossary of this development code
<cite section>.
Landscape Plan Requirements
A. Landscape Plan. A landscape plan that demonstrates how the project will be designed
to meet the standards for water efficient landscaping on the site shall be submitted with the
following information.
1. <submittal standard for size, format, scale, etc.>
2. The landscape plan shall include the following information:
1. Date.
2. Project name.
3. Project contacts.
4. Schematic of landscape design.
5. List of plant materials.
6. Each hyrdozone labeled by a number or letter and delineation of each hydrozone
by level of water use: very low, low, moderate, and high.
7. Soil[KS1] type, soil amendment type and soil amendment volume shall be
included in the landscape design plan. <if capacity for inspection, add written
verification of approved soil amendments type and volume is required.>
8. Explanation of how topsoil will be stockpiled and reused.
9. Mulch type and application depth.
10. Areas for recreation, edible plants, surface area of water features, etc.
11. Areas irrigated with different water sources including potable water, recycled
water and non-potable water.
12. Water features, retaining walls, walls, fences, etc.
13. Location and installation details of stormwater best management practices.
14. Rainwater harvesting technologies.
15. Landscape grading plan.
16. Irrigation system plan.
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17. Signature of licensed landscape architect or licensed/certified landscape
contractor.
18. Inspection affidavit
B. Preparation by Qualified Professional. Landscape plans shall be prepared by a
qualified landscape architect, licensed landscape contractor, certified nurseryman or other
professional determined by the director to be qualified, based on applicant’s ability to
demonstrate compliance with this Zoning Code.
C. Plan Review and Approval. The <designated staff> shall review each landscape plan
to verify its compliance with the regulations. The <staff> may authorize minor changes from
the requirements of these regulations. Landscape submittal requirements shall be met and
plans approved by the <approving body>. For new development, approval shall be prior to
final development plan and, for redevelopment, prior to the issuance of a building permit.
Landscaping Standards
A. Landscape Design. Water efficiency shall guide landscape and site planning, design,
installation and management.
1. Soil Preparation. The soil shall be prepared and amended in accordance with the
landscape plan and to comply with standards below unless the soil analysis, conducted
by a certified soil lab, demonstrates that alternate soil preparation is more suitable for
the landscape materials to be installed.
a. Soil Analysis. A soil analysis shall be conducted to determine the condition
of the soil related to texture, acidity, salts and plant nutrient availability. [Organic
Matter?]
b. Grading. Site shall be graded to comply with the grading plan.
c. Top Soil. Stripping and stockpiling of topsoil shall be required during
construction for replacement, with soil amendments, during landscape
installation.
d. Soil Amendments.
i. Soil amendments for turf, shrubs, perennials and annuals
shall be sandy loam to a depth of 6” containing at least 5 percent organic
matter by volume.
ii. Soil amendments for trees shall be:
1. Sandy loam to a depth of 36 inches containing 1-3 percent organic
matter by volume.
2. In locations with existing good soils, soil shall be turned three times
the dimension of the root ball.
e. In locations with hard or compact soil, soil shall be broken up to create
adequate drainage.
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i. Soil amendments shall be Class I and Class II compost.
[KS2]
ii. The percentage of rocks and debris by volume shall be
appropriate for the landscape materials installed.
f. <if capacity for inspection, soil inspection will occur if deemed necessary
prior to installation of plant material conducted by designated staff or
contractors.>
2. Mulch. Mulch shall be applied at a minimum depth of 4 inches with modifications as
appropriate for installed plant material. Mulch shall be renewed as needed. Mulch
material may be of organic material including, but not limited to: wood, bark nuggets, nut
shells, grass clippings, straw, compost and chopped leaves; or inorganic material
including gravel, stone, pea gravel, pebbles.
3. Plant Selection and Grouping. Plant materials shall be selected for water
efficiency, drought tolerance, use of native species and their relationship to the
<community> regional ecology as well as geological and topographical conditions of the
site in compliance with the standards below:
a. Plants shall be selected from <Appendix, Manual, or List>.
b. Plants shall be grouped together by soil suitability and by water use in
distinct hyrdozones (very low, low, moderate and high) to increase irrigation
efficiency.
c. The landscape design shall promote and preserve native species and natural
areas.
d. <Plant materials used in bioretention and retention ponds shall be adapted to
occasional submersion.>
4. Plant Quality. Plants shall be A-grade or No. 1 grade.
5. Plant Size.
Plant Type Minimum Size
Shade Tree 2-inch caliper
Evergreen 6-foot height
Ornamental Tree 1.5-inch caliper
Shrubs 5-gallon
Ornamental Grasses 1-gallon
6. Wildfire Management Constraints. In high fire-risk and fire-prone areas identified
by <cite ordinance, map or plan>, plant selection and landscape design shall integrate
fire-resistant landscaping buffers between development and naturally vegetated areas,
53
locate highest water-use hyrdozones adjacent to structures, select fire-resistant plant
species nearest structures, and thin fuel species on slopes and adjacent to structure.
When resolving conflicts between this regulation and fire safety design elements, the fire
safety requirements shall have priority. <Landscape plans may be reviewed by the
wildfire risk manager in highest fire risk zones> and/or <A site inspection by a wildfire
specialist is required prior to landscape design.>
7. Controlled or Prohibited Materials. The installation of the following invasive
species is prohibited: <list species>
8. Plant Installation. Groundcover, turf, shrubs, trees and other plant material shall be
installed as follows:
a. Trees. <not covered in the scope of this project>
b. Groundcover and Shrubs. <not covered in the scope of this project>
c. Turf. Turfgrass sod or turfgrass seed shall be cold season grasses with
no more than 25 percent Kentucky bluegrass. Recommended turf species
includes <fine fescues, wild ryegrass, blue grama and buffalo grass>. Turf shall
be limited as follows:
i. Single-family dwelling units shall not have
turf in excess of 1,000 square feet or 10 percent of the total lot area,
whichever is less.
ii. Multifamily dwelling units shall not have turf
in excess of 20 percent of the required common space.
iii. Industrial and commercial development
shall not have turf in excess of 1,000 square feet or 3 percent of the
required open space, whichever is greater.
iv. Public parks and commercial recreation
uses are exempt from turf limitations but shall limit Kentucky bluegrass to
active recreation and high traffic areas only.
9. Height limitations. Landscape materials may not interfere with the proper operation
of solar energy equipment or passive solar design on adjacent parcels.
10. Water Features. Decorative water features (e.g. ponds, fountains, pools) shall have
recirculating water systems and flow monitoring with the ability to produce high use
alarms. Where practical, landscaping and/or fencing should be used to provide shade
and wind protection, to minimize evaporation.
Water Use and Efficient Irrigation Standards
A. Landscape Water Allowance. <if a water allowance> The estimated applied water use
shall not exceed the maximum allowed water budget. Methodology for calculation is <cite
location of methodology>
1. All irrigated landscaped areas must be included in the water budget calculation.
2. The total irrigation need for all hyrdozones cannot exceed the maximum allowed water
budget of <water allowance>.
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B. Irrigation System Design. Water-efficient irrigation systems shall be planned and
designed according to the landscape plan, consistent with the most current version of
Landscape Irrigation Best Practices by the Irrigation Association of the American Society of
Irrigation Consultants, and designed for site-specific hyrdozones, topography, site
orientation, microclimates, prevailing winds and soil type.
1. Irrigation systems shall be zoned by levels of water use (hyrdozones).
2. Permanent irrigation systems (drip, bubblers, low-flow sprinkler heads or similar
systems) shall be used on all irrigated landscapes except where hand watering with
a hose equipped with a shut off valve is permitted for landscapes of <less than 1,000
square feet>.
3. Dual or multi-program controllers with separate valves and circuits shall be used
when the landscape contains more than one type of landscape treatment or for an
irrigated area over <1,000 square feet> or <for all commercial, industrial, and multi-
family residential developments.>
4. Weather-basedSmart controllers, used in conjunction withsuch as soil moisture
sensing devices and rain sensors, shall be used on projects greater than <1,000
square feet> to minimize overwatering.
5. Check valves and anti-drain valves are required for all sprinkler heads.
6. The system shall be designed to ensure that the operating pressure at each
emission device is within the manufacturer’s recommended pressure range for
optimal performance.
7. Overhead spray irrigation is prohibited for use on trees, shrubs and
groundcover. Sprinkler heads shall be a WaterSense labeled product, in compliance
with C.R.S. § 6-7.5-105, and have matched precipitation rates within each valve
zone. Sprinkler spacing shall be designed to achieve the highest possible distribution
uniformity. All sprinkler heads installed in turfgrass shall have a distribution uniformity
of 0.65 or higher.
8. Low-flow sprinkler heads with matched precipitation rates shall be used when
spray or rotor type heads are used for shrubs and groundcover.
9. Turf areas shall be sized and shaped for efficient irrigation and elimination of
water waste. Minimum pop-up height for sprinklers in turfgrass areas shall be 6
inches. Minimum turf area width shall be 10 feet.
10. Watering schedule shall comply with <community> water conservation
ordinance <cite section> or <Watering shall be scheduled between 6 p.m. and 9
a.m.>
11. Irrigation systems shall be designed to prevent water waste, overwatering and
overspray, and drainage of water onto any paved or unplanted surface.
Installation and Assurances
A. Timing of Installation. Approved landscaping and watering systems shall be installed
<and inspected> in compliance with the approved landscape plan <prior to issuance of a
certificate of occupancy> or <prior to the final building inspection>. If a landscape and
irrigation system cannot be installed prior to issuance of a certificate of occupancy for
reasons determined by the <department to be valid, a maximum 90-day deference can be
55
issued along with a temporary certificate of occupancy> or < A certificate of occupancy for a
structure or building may be issued prior to the completion of required landscape
improvements, if the completion is not possible due to seasonal or weather conditions and if
the owner or developer escrows the necessary funds with the zoning administrator for the
completion of the landscaping.>
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Water Budget Calculation Methodologies[1]
Determining a Water Allocation for Total Landscape
A water allocation, calculated in gallons/square foot/year or acre-feet/year, is used by Aspen,
Eagle River Water and Sanitation District, Colorado Springs and many others to determine the
amount of water a development will require as well as to establish a maximum amount of
water a development may use for irrigation. Water allocation amounts vary from 15
gallons/square foot/year in Colorado Springs to 7.5 gallons/square foot/season in Aspen. The
common calculation is:
Total Irrigation Water Allotment (gallons/year) = Landscaped Area (square feet) x
Allotment (gallon/square foot/year)
Determining a Landscape Area Requirement
To calculate the amount of supplemental irrigation that a landscape needs in order to remain
healthy after accounting for natural precipitation, a different calculation is done to determine
gallons of water required for the landscape for a determined period.
The most frequently utilized methodology includes a calculation that uses an estimated local
reference evapotranspiration (ETo) in inches per month to establish climate-based maximum
and conservation levels of landscape water requirements or allocations. ETo is an estimation
of the evapotranspiration from a reference surface, a hypothetical crop that resembles an
well-watered turf of uniform height, actively growing and completely shading the ground.[2] A
plant factor (PF) is used to adjust the ETo to account for the variability in water requirements
among landscape plant species.
Plant species have different water use demands and thus plant factors. Ranges for plant
factors for different plant types include:
● High PF: plants need 60-100 percent of the water needed for grass lawn (PF of 0.6 -
1.0)
57
● Moderate PF: plants need 30-60 percent of the water needed for grass lawn (PF of 0.3
- 0.6)
● Low PF: plants need 10-30 percent of the water needed for grass lawn (PF of 0.1 -
0.3)
● Very Low PF: plants need 10 percent or less of the water needed for grass lawn (PF of
less than 0.1)
The most commonly used equation is the Simplified Landscape Irrigation Demand Estimation
(SLIDE):
Gallons of Water = ETo × PF × Landscape Area × 0.62
ETo is inches of water for the time period of interest (day, week, month, year)
PF from an accepted reference source
Landscape Area is square feet of planted area
0.62 is a unit conversion factor to yield a result in gallons
Aspen, which has a high alpine climate with an average annual precipitation of 27 inches per
year identifies the hyrdozones and plant factors in its Aspen Landscape Water Allocation
Worksheet as:
Hydrozones Efficiency
Water Use Category Plant Factor Code
Cool Season Turf 0.90 VH
High 0.80 H
Medium 0.65 M
Low 0.40 L
58
Very Low 0.25 VL
Adjusting for Irrigation Efficiency
The next step to adjust the water requirement for the efficiency of the irrigation system (IE). A
properly designed irrigation system can be assigned an irrigation efficiency of 0.75 to 0.80 and
drip irrigation a factor of 0.9. The calculation adjustment is the sum from the Landscape Area
Requirement divided by IE.
Aspen uses an irrigation efficiency rating of 90 percent for drip and 75 percent for overhead
irrigation. Denver, by comparison, uses IEs of 90 percent for drip, 70 percent for rotor, and 65
percent for spray.
Aspen’s Irrigation Water Budget and Water Budget Spreadsheet
Developed for the City by Element Consulting, the Hydrozone Water Budget Spreadsheet
requires a contractor to enter information into a spreadsheet to generate a water budget to be
submitted with a landscape plan. The formula accounts for the square footage of each
hydrozone and allows a contractor to allocate plant material based on the total water
allocation of 7.5 inches/square foot/season.
Irrigation Water Budget = [(ETo x Plant Factor) - Re] x Irrigated Area / Irrigation
Efficiency x 0.623
ETo = Reference Evapotranspiration in inches/season (May - Sept.)
Re = Effective Precipitation in inches/season (May - Sept.)
Irrigated Area = Hydrozone Area in Square Feet
This methodology is applicable to all of the headwaters communities, but modifications for
climate variation requires changes to the ETo and Re and possibly plant factors. The U.S.
59
Climate website provides climate data for Colorado, including the effective precipitation
necessary for calculations. Selecting the appropriate methodology should be done in
consultation with a landscape architect, water specialist, Natural Resources Conservation
Service (NRCS) or a CSU Extension agent to align with your climate, water-saving goals,
capacity for application review.
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[1] Page 33 Calculating Water Budget https://www.gcsaa.org/uploadedfiles/Environment/Get-Started/BMPs/Green-
Industry-Best-Management-Practices-for-the-Conservation-and-Protection-of-Water-Resources-in-Colorado.pdf
[2] https://coagmet.colostate.edu/extended_etr_about.php
Metering Examples
City of Aspen Dedicated landscape water meters/submeters shall be installed
for all non-residential irrigated landscapes of 5,000 square feet
or more.
Examples or Links
https://law.justia.com/codes/colorado/2017/title-29/land-use-control-and-conservation/article-
20/part-3/
12. Title: Reference, compliance, and enforcement of Colorado Revised Statutes
supporting irrigation
What is the requirement?
No subdivision, common interest development (CID), or Homeowners Association (HOA) in
Colorado can mandate a minimum area of turf grass be installed in a landscape design plan.
Additionally, it cannot dictate that xeriscaping or other low-water landscape designs are
unacceptable per HOA/special district standards.
Why or how does this help?
Senate Bill 13-183 which is now part of the Colorado Revised Statutes dictates that no HOA,
CID, or other entity representing multiple home-owners can restrict a member of that HOA or
entity from planting non-turf landscaping, or xeriscaping, or any specific landscape design.
Additionally, it cannot regulate that a minimum amount of turf grass be required in any
61
landscaped lawn. This ensures that residents who want to be water conscious in their
landscape design are not required to install a minimum area of turf grass, or be burdened with
the irrigation cost of a water consumptive landscaping design. This aids in water conservation
efforts from outdoor water use by making such mandates unenforceable.
Code Language
Colorado Revised Statutes 37-60-126 (11) states the following:
(11) (a) Any section of a restrictive covenant or of the declaration, bylaws, or rules and
regulations of a common interest community, all as defined in section 38-33.3-103, C.R.S., that
prohibits or limits xeriscape, prohibits or limits the installation or use of drought-tolerant
vegetative landscapes, or requires cultivated vegetation to consist wholly or partially of turf
grass is hereby declared contrary to public policy and, on that basis, is unenforceable. This
paragraph (a) does not prohibit common interest communities from adopting and enforcing
design or aesthetic guidelines or rules that require drought-tolerant vegetative landscapes or
regulate the type, number, and placement of drought-tolerant plantings and hardscapes that
may be installed on the unit owner's property or property for which the unit owner is responsible.
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13. Title: Mitigation of Transportation Impacts: Bicycle Racks for new commercial
developments
What is the requirement?
Provide a minimum number of covered/non-covered bike parking spaces for at least 5% of
anticipated building occupants or 0.5 spaces per dwelling unit for multi-family developments.
Why or how does this help?
Bicycle infrastructure (i.e. bike racks) installed at commercial centers provide an option for
community members to access that commercial area on a bike versus a traditional single-
occupancy vehicle (SOV). Bike racks encourage multi-modal transportation options for the
community and provide an area to lock and store bikes when they arrive at their destinations.
Without bike racks, people who ride their bikes will lock their bikes to light posts, or stairwell
railings which pose safety hazards in those areas as bike block major public right-of-ways.
Improving bike infrastructure and installing bike racks in commercial centers was identified in
the First Last Mile Study conducted by ECO Transit as a strategy to increase bike and bus
ridership. Increasing bike infrastructure sends a message to the community that bikes are
welcome in commercial areas and creates a culture of bike-friendly neighborhoods. This in turn,
reduces the carbon emissions from our transportation sector, which represents 36% of our
community’s emission inventory (2017 Greenhouse Gas Inventory). It also protects Eagle
County residents from air pollution from tailpipe emissions which is known to have adverse
effects on human health. Biking riding also promotes healthy lifestyle. Finally, it reduces the
need for significant parking infrastructure to support SOVs and reduces traffic congestion during
peak travel times.
Code language (existing or proposed): Code Language from International Green Construction
Code (IGCC) 2018
Bike Parking
Minimum number of spaces:
1. Covered/Sheltered, long-term bike parking/storage shall be provided for at least 5% of
the full-time occupant load of each building but not less than 2 bike parking spaces.
2. Covered or non-covered, short-term bike racks for visitors shall be provided for at least
5% of buildings anticipated visitors, but not less than 2 spaces.
3. Multi-family building projects with dwelling units shall be provided with at least 0.5 bike
parking spaces per bedroom for each building but not less than 2 parking spaces
a. Exception if there is storage for bikes built into the dwelling unit.
b. Exception if the design professional can demonstrate the likelihood that building
occupants will use public transit and or walk to the building project site.
Location of Bike Parking
1. 2 or more short-term bike racks shall be located within 50 ft of and visible from the
building entrance.
63
a. All other spaces shall be inside building or parking areas shall be within 50 ft of
the building entrance being service.
2. Long-term storage can be located within or outside of building
Examples or links:
● Reference for anticipated visitors: https://www.usgbc.org/credits/new-construction-
existing-buildings-commercial-interiors-core-and-shell-schools-new-constr-3
● CALGreen Code: Bike rack requirements are included for both short-term and long-term
bike parking for commercial and multi-family residential: https://cyclesafe.com/bike-
parking-guidelines/
● Bike Parking Requirement Best Practices created by Bicycle Security Advisors:
http://bicyclesecurityadvocates.org/best-practice-guides/parking/zoning-building-codes/
● San Francisco Code since 2005: https://sfplanning.org/bicycle-parking-requirements;
https://www.sfmta.com/sites/default/files/reports-and-
documents/2018/06/1_sfmta_bicycle_parking_guidelines-updated-05-15-2018.pdf
● Seattle Bike Parking Requirements:
https://www.seattle.gov/Documents/Departments/SDOT/BikeProgram/SDOT%20Bicycle
%20Parking%20Guidelines_6.11_WORKING_DRAFT.pdf
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____________________________________________________
Incentive Program Recommendations
14. Title: Encourage/Incentivize Home Energy Rating System (HERS) performance path.
What is the requirement? Consider incentives to establish more case studies and education,
capacity of local qualified workforce, and familiarity with the HERS performance path tool.
How does this help? The current 2015 and 2018 IECC codes allow for the HERS rating as a
Energy Rating Index (ERI) performance path option. Since both the prescriptive path and
performance paths require a blower door test to measure air tightness of a building, many
jurisdictions have required a HERS rating which includes plan review, rough-in / insulation, and
final testing by a qualified third party contractor. This can help avoid instances of projects failing
blower door test requirements at final inspection stages, provide a comprehensive energy
performance report to the owner, and potentially reduce inspection workload from local building
staff. The HERS does include a cost, which may be $1500 to $2,000 above what would be
necessary for just the blower door test. HCE discontinued HERS rebates in 2019 as building
codes are more stringent. They will rebate LEDs, air source heat pumps (ASHPs), ASHP water
heaters, heat tape timers, and smart thermostats for new homes. In the new Holy Cross Energy
Store members can order LEDs, smart thermostats, and high efficiency showerheads with
instant rebate.
Code Language: Building resolution could incentivize ERI performance path which currently
exists in IRC 2015 and 2018 as part of the building resolution for new residential construction.
For example, a rebate of $1,000 could be offered as part of a HERS rating meeting certain
criteria.
References or Links:
Other communities that have adopted the HERS Index as a requirement include:
● California Energy Commission requires HERS ratings for any new construction, addition,
or window expansion anywhere in California.
● 205 communities in Massachusetts have adopted a HERS requirement of 70 or less for
new construction as part of the Massachusetts Stretch Code.
● Town of Telluride requires HERS ratings 80 or less for homes 2500 ft2 and smaller; 70
for homes over 2500 ft2 .
● Santa Fe City and County, New Mexico require HERS Index ratings of 70 or less.
● Southampton, NY requires HERS 54 or less for new homes 4500 ft2 or less; 35 or less
for homes over 4500 ft2.
● City of Austin, Texas requires HERS Index rating of 70 or less.
● Both City and County of Boulder have sliding HERS requirements based on home size.
65
15. Title: Provide education and incentives to support beneficial electrification.
What is the requirement?
Consider providing educational opportunities or incentives to encourage the use of all-electric
heating systems including new technology, utility rate options, net-zero homes, etc.
What is it and how does this help?
Beneficial electrification is the application of electricity to end-uses that would otherwise
consume fossil fuels (e.g., natural gas, propane, oil, gasoline) where doing so satisfies at least
one of following conditions, without adversely affecting the others:
● save consumers money over time;
● benefit the environment and reduce greenhouse gas emissions;
● improve product quality or consumer quality of life; or
● foster a more robust and resilient grid
● Improve indoor air quality in homes and businesses
Beneficial Electrification programs are a valuable opportunity to engage both electric utilities and
environmental groups in an effort to identify solutions that work well for the end-use consumer,
local communities and the environment.
In addition, shifting to building electrification can provide public health and safety benefits.
Eliminating natural gas from homes can prevent potential life-threatening cases of carbon
monoxide poisoning, gas leaks, fires, and explosions. The production of natural gas alone is
attributed to 4,000 deaths per trillion BTUs produced1; since 1999 there have been 6,653
accidental deaths due to carbon monoxide poisoning from combustion of natural gas in homes
and buildings2,3.
From a GHG reduction standpoint, the electric power supply mix has made significant strides in
increasing its percentage coming from renewable energy resources. Xcel Energy, which
provides electric utility services to portions of Eagle County and wholesale power supply to Holy
Cross Energy, has committed to achieving 80% carbon pollution reduction by 2030 and be
100% carbon-free by 2050; and Holy Cross Energy, which provides electric utility services to a
majority of Eagle County residents and businesses, has agreements in place to provide 70% of
its power supply mix from renewable energy by 2030. A contract with Guzman Energy may help
achieve this goal before 2030.
As the electric grid becomes decarbonized, shifting fuels for building heating from natural gas to
electricity will reduce GHG emissions and can significantly affect pollution reduction.
Code Language: NA
66
Links or Reference:
https://beneficialelectrification.com/
https://rmi.org/insight/the-economics-of-electrifying-buildings/
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____________________________________________________
Rental Housing Recommendations
Title: Rental unit energy standards
Background: In order to have a meaningful impact upon energy efficiency of the existing
housing stock, the energy efficiency of rental units must be addressed. In many cases, tenants
pay high utility bills for inefficient rental units —- often higher than the cost of their rent itself in
the winter —- which can have a detrimental impact on affordable housing, impacting those with
the least ability to afford the cost, as well as not being able to make energy improvements to the
rental unit. Also, since the landlord doesn’t pay the utilities, they have little to no incentive to
make any energy improvements, and there is no requirement for disclosure of utility costs for
potential tenants unaware of utility costs associated with units they may be considering.
What is the requirement? To regulate impacts of short-term rentals on employee housing and
community character, ensure life-safety building code compliance, and support baseline energy
efficiency standards, some jurisdictions in Colorado have adopted rental housing licensing
requirements. As it pertains to addressing the challenge of improving the energy efficiency of
rental housing where tenants pay the utilities and landlords have little if any incentive to make
energy improvements, such requirements can play a role in supporting such investments which
have a direct and significant impact on the financial viability of lower income, new and seasonal
employees in the area. To this end, it is recommended to pursue regulatory options to support
life safety and energy efficiency improvements to rental housing. Similar to SmartRegs in
Boulder, a similar program which requires basic levels of energy efficiency and life safety be
met can be an effective tool to support affordable housing and energy efficiency goals.
Questions regarding licensure authority for County and Town jurisdictions as it pertains to rental
properties should be reviewed by the authority having jurisdiction and their legal
representative(s). Many jurisdictions have licenses and regulations in place for short-term
rentals; such regulations could be expanded to include energy efficiency and life-safety
standards to protect occupants accordingly.
Code language The proposed requirement is that demonstration of basic energy efficiency
either on a HERS scale or current / recent building code compliance level would need to be
demonstrated to obtain a rental housing license. Homes which meet basic energy efficiency and
safety thresholds would not be required to make any changes; however those which did not
meet basic standards would need to bring them up to compliance.
Examples or links:
Boulder SmartRegs: https://bouldercolorado.gov/plan-develop/smartregs
68
References:
1. Forbes: Natural Gas and the New Deathprint for Energy
https://www.forbes.com/sites/jamesconca/2018/01/25/natural-gas-and-the-new-
deathprint-for-energy/#4b72b7e65e19
2. https://www.atsjournals.org/doi/full/10.1513/AnnalsATS.201604-318OC
3. https://www.scientificamerican.com/article/the-human-cost-of-energy/
69
____________________________________________________
Appendix A: Definitions
Absolute Photometry Photometric measurements (usually of a solid-state luminaire) that
directly measures the footprint of the luminaire. Reference Standard IES LM-79
Architectural Lighting Lighting designed to reveal architectural beauty, shape and/or form and
for which lighting for any other purpose is incidental.
Authority The adopting municipality, agency or other governing body.
Astronomic Time Switch An automatic lighting control device that switches outdoor lighting
relative to time of solar day with time of year correction.
Beneficial Electrification The replacement of direct fossil fuel use with electricity in a way that
reduces overall emissions and energy costs.
Backlight For an exterior luminaire, lumens emitted in the quarter sphere below horizontal and
in the opposite direction of the intended orientation of the luminaire. For luminaires with
symmetric distribution, backlight will be the same as front light.
Buffer Zone An area that serves as a conserved natural habitat where plants and animals can
thrive, which is not amended for anthropogenic use.
BUG A luminaire classification system that classifies backlight (B), uplight (U) and glare (G).
Canopy A covered, unconditioned structure with at least one side open for pedestrian and/or
vehicular access. (An unconditioned structure is one that may be open to the elements and has
no heat or air conditioning.)
Common Outdoor Areas One or more of the following: a parking lot; a parking ; a common
entrance or public space structure or covered vehicular entrance shared by all occupants of the
domiciles.
Construction and Demolition Waste (C&D Waste) means those materials resulting from the
alteration, construction, destruction, rehabilitation, or repair of any manmade physical structure
including houses, buildings, industrial or commercial facilities, and roadways.
Dwelling Unit A structure or part of a structure which includes a residential kitchen facility and
that is used as a home, residence or sleeping place by one person who maintains a household
or by two or more persons who maintain a common household.
70
Electric Vehicle (EV) A vehicle registered for on-road use, primarily powered by an electric
motor that draws current from a rechargeable storage source that is charged by being plugged
into an electrical current source.
Electric Vehicle Supply Equipment (EVSE). The electrical conductors and associated
equipment external to the electric vehicle that provide a connection between the premises wiring
and the electric vehicle to provide electric vehicle charging.
Electric Vehicle Fast Charger. Electric vehicle supply equipment with a minimum power output
of 20 kW.
Electric Vehicle Load Management System. A system designed to allocate charging capacity
among multiple electric vehicle supply equipment at a minimum of 8 amps per charger.
Electric Vehicle Capable Space. A designated parking space that is provided with conduit
sized for a 40-amp, 208/240-Volt dedicated branch circuit from a building electrical panelboard
to the parking space and with sufficient physical space in the same building electrical
panelboard to accommodate a 40-amp, dual-pole circuit breaker.
Electric Vehicle Ready Space. A parking space that is provided with one 40-amp, 208/240-
Volt dedicated branch circuit for electric vehicle supply equipment that is terminated at a
receptacle, junction box, or electric vehicle supply equipment within the parking space.
Electric vehicle supply equipment (EVSE) installed space. A parking space with electric
vehicle supply equipment capable of supplying a 40-amp dedicated branch circuit rated at
208/240 Volt from a building electrical panelboard.
Energy Star a program which provides certification to buildings and consumer products which
meet certain standards of energy efficiency.
Floodplains A flood hazard area shown on a legally adopted flood hazard map or otherwise
legally designated by the local jurisdiction or the state.
Footcandle The unit of measure expressing the quantity oflight received on a surface. One
footcandle is the illuminance produced by a candle on a surface one foot square from a distance
of one foot.
Forward Light For an exterior luminaire, lumens emitted in the quarter sphere below horizontal
and in the direction of the intended orientation of the luminaire.
Fully Shielded Luminaire A luminaire constructed and installed in such a manner that all light
emitted by the luminaire, either directly from the lamp or a diffusing element, or indirectly by
reflection or refraction from any part of the luminaire, is projected below the horizontal plane
through the luminaire's lowest light-emitting part.
71
Glare Lighting entering the eye directly from luminaires or indirectly from reflective surfaces that
causes visual discomfort or reduced visibility.
Habitat Land identified as habitat for the following:
● Species listed as threatened or endangered under the U.S. Endangered Species Act or
the state’s Endangered Species Act, or
● Species or ecological communities classified by NatureServe as GH (possibly extinct),
G1 (critically imperiled), or G2 (imperiled), or species listed as threatened or endangered
specifies under local equivalent standards that are not covered by NatureServe data.
Hardscape Permanent hardscape improvements to the site including parking lots, drives,
entrances, curbs, ramps, stairs, steps, medians, walkways and non-vegetated landscaping that
is 10 feet or less in width. Materials may include concrete, asphalt, stone, gravel, etc.
Hardscape Area The area measured in square feet of all hardscape. It is used to calculate the
Total Site Lumen Limit in both the Prescriptive Method and Performance Methods. Refer to
Hardscape definition
Hardscape Perimeter The perimeter measured in linear feet is used to calculate the Total Site
Lumen Limit in the Performance Method. Refer to Hardscape definition
Home Energy Rating System (HERS) A scoring system established by the Residential
Energy Services Network (RESNET). Based on the 2006 International Energy Conservation
Code, the HERS Reference Home is a standard new home that meets all energy requirements
and has a HERS Index of 100. A net-zero energy project will achieve a zero (0) HERS Index
rating. The lower a home’s HERS Index, the more energy-efficient it is in comparison to the
HERS Reference Home. Each point decrease on the HERS Index indicates a 1% reduction in
energy use.
IDA International Dark-Sky Association
IESNA Illuminating Engineering Society of North America
Impervious Material Sealed to severely restrict water entry and movement
Industry Standard Lighting Software Lighting software that calculates point-bypoint
illuminance that includes reflected light using either ray-tracing or radiosity methods.
Landscape Lighting Lighting of trees, shrubs, or other plant material as well as ponds and
other landscape features.
Level 3 Alteration Alterations where the work area exceeds 50 percent of the original building
area or more than 10 parking spaces are substantially modified.
72
Long-term bicycle storage bicycle parking that is easily accessible to residents and
employees and covered to protect bicycles from rain and snow
Light Trespass Light that falls beyond the property it is intended to illuminate.
Lighting Zone An overlay zoning system establishing legal limits for lighting for particular
parcels, areas, or districts in a community
Low Voltage Landscape Lighting Landscape lighting powered at less than 15 volts and
limited to luminaires having a rated initial luminaire lumen output of 525 lumens or less
Lumen The unit of measure used to quantify the amount of light produced by a lamp or emitted
from a luminaire (as distinct from “watt,” a measure of power consumption).
Luminaire The complete lighting unit (fixture), consisting of a lamp, or lamps and ballast(s)
(when applicable), together with the parts designed to distribute the light (reflector, lens,
diffuser), to position and protect the lamps, and to connect the lamps to the power supply
Luminaire Lumens For luminaires with relative photometry per IES, it is calculated as the sum
of the initial lamp lumens for all lamps within an individual luminaire, multiplied by the luminaire
efficiency. If the efficiency is not known for a residential luminaire, assume 70%. For luminaires
with absolute photometry per IES LM-79, it is the total luminaire lumens. The lumen rating of a
luminaire assumes the lamp or luminaire is new and has not depreciated in light output.
Lux The SI unit of illuminance. One lux is one lumen per square meter. 1 Lux is a unit of
incident illuminance approximately equal to 1/10 footcandle.
Mounting height The height of the photometric center of a luminaire above grade level.
Net Zero Building “Zero net site energy use” In this type of ZNE, the amount of energy
provided by on-site renewable energy sources is equal to the amount of energy used by the
building. In the United States, “zero net energy building” generally refers to this type of building.
Occupant Load The total number of persons that might occupy a building or portion thereof at
any one time
Partly shielded luminare A luminaire with opaque top and translucent or perforated sides,
designed to emit most light downward.
Photoelectric Switch A control device employing a photocell or photodiode to detect daylight
and automatically switch lights off when sufficient daylight is available.
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Relative Photometry Photometric measurements made of the lamp plus luminaire, and
adjusted to allow for light loss due to reflection or absorption within the luminaire. Reference
standard: IES LM-63.
Sales Area Uncovered area used for sales of retail goods and materials, including but not
limited to automobiles, boats, tractors and other farm equipment, building supplies, and
gardening and nursery products.
Shielded Directional Luminaire A luminaire that includes an adjustable mounting device
allowing aiming in any direction and contains a shield, louver, or baffle to reduce direct view of
the lamp.
Short-term bicycle storage non-enclosed bicycle parking typically used by visitors for a period
of two hours or less
Sod Area of grass-covered surface soil and network of roots which is irrigated and maintained
through mowing and/or trimming.
Soil Amendment Material used to supply organic matter to the soil. Soil amendments improve
soil structure, aeration, and water retention and may contain biological activity that improves
plant health and root development.
Solar-Ready Zone A section or sections of the roof or building overhand designated and
reserved for the future installation of a solar photovoltaic or solar thermal system.
Temporary Lighting Lighting installed and operated for periods not to exceed 60 days,
completely removed and not operated again for at least 30 days.
Unshielded Luminaire A luminaire capable of emitting light in any direction including
downwards.
Uplight For an exterior luminaire, flux radiated in the hemisphere at or above the horizontal
plane
Vertical Illuminance Illuminance measured or calculated in a plane perpendicular to the site
boundary or property line.
Wetlands those areas that are inundated or saturated by surface or groundwater at a frequency
and duration sufficient to support, and that under normal circumstances do support, a
prevalence of vegetation typically adapted for life in saturated soil conditions.
Zero Energy Ready Homes The U.S. Department of Energy (DOE) defines a zero energy
ready home as “a high performance home which is so energy efficient, that a renewable energy
system can offset all or most of its annual energy consumption.”
74
Zero Energy Building An energy-efficient building where, on a source energy basis, the actual
annual delivered energy is less than or equal to the on-site renewable exported energy.
Appendix 1: Calculating Occupancy & Visitors
Whenever possible, use actual or predicted occupancies.
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If occupancy cannot be accurately predicted, one of the following resources to estimate
occupancy:
a. Default occupant density from ASHRAE 62.1-2010, Table 6-1
b. Default occupant density from CEN Standard EN 15251, Table B.2
c. Default Occupancy Counts Table 1 below (Source: LEED v4 BD+C Reference Guide)
Building Code Recommendations
Town of Avon Council Meeting
March 10th, 2020
1
Agenda
●Climate Action Plan
●Building Code Task Force
●Review of Recommendations
●Discussion
●Next Steps
2
Climate Action Plan
In 2016, stakeholders came together to develop the Climate Action Plan (CAP).
The plan identified the following goals:
●25% GHG reduction by 2025
●80% GHG reduction by 2050
The CAP has been adopted by 30+ local businesses, organizations, nonprofits,
and governments to date, who created the Climate Action Collaborative to
implement the plan.
Town of Avon adopted CAP on December 13, 2016 (Resolution 2016-38)
3
GHG Inventory
4
1.4 M metric tons
CO2e
1.28 M metric tons
CO2e
GHG Inventory
5
1.4 M metric tons
CO2e
1.28 M metric tons
CO2e
70%
Renewable energy
2017 GHG Forecast
6
25%
80%
Climate Action Plan
The CAP includes the following sectors and
GHG reduction goals:
●Buildings: 25% by 2025
●Transportation: 10% by 2025
●Power Supply: 25% by 2025
●Waste Diversion: 30% diversion by 2030
●Education
7
Buildings
CAP Key Recommendations:
8
Building Code Task Force Contributors
9
Tim Braun, R&H Mechanical
Seth Bossung, Intention Architecture
Mary Wiener, Holy Cross Energy
Deron Dircksen, Town of Eagle
Steve Novy, Green Line Architects
Rebecca Smith, Zehren Architecture
Nikki Maline, Walking Mountains Sustainability
John Widerman, Town of Minturn
Michael Rodenak, Zehren Architecture
Barry Monroe, R.A. Nelson
Megan Gilman, North 39 Energy
Kira Koppel, Eagle River Water & Sanitation District
Cat Hayes, Eagle River Water & Sanitation District
Christopher Jarecki, Town of Vail
Amanda Poindexter, Town of Basalt Consultant
Adam Palmer, Eagle County
Derek Place, Town of Avon
Charlie Davis, Town of Eagle
Jesse Masten, Eagle County Solid Waste & Recycling
Shawn Bruckman, Vail Honeywagon
Torie Jarvis, Northwest Colorado Council of Governments
Brian Pawl, Pitkin County
Jonathon Nagle, Fort Collins
Vance Gabossi, Eagle County
Mona Newton, Aspen CORE
Phi Filerman, Aspen CORE
Kristen Hartel, Green Building Certification Institute
Denyse Schrenker, CSU Extension Office
Rich Clubine, Active Energies
Bob Olson, ET Irrigation
Steve Linnenberger, ET Irrigation
Brian Bair, ET Irrigation
Kreston Rohrig, Mountain Organic Landscaping
Kelli Rohrig, Mountain Organic Landscaping
Building Code Task Force Vision
Create a system of mandatory and voluntary energy
efficiency and non-energy sustainability criteria for new
construction and existing buildings which are consistent
throughout Eagle County.
10
Building Code Task Force Criteria
1.Energy efficiency and renewable energy
2.Cost-effectiveness
3.Air quality, water efficiency, materials and resources
4.Support fuel switching from fossil fuels to electricity
5.Incentivize innovation
6.Include education, training, and coaching
7.Not place a burden on inspection staff, administration
8.Be clear, simple to understand/administer
11
1.Adopt every other
building code cycle
Starting in 2021 adopt every other
building code cycle.
Why?
-Ease of adoption
-More opportunity for education
Avon Update
Avon is set to adopt the 2021 I-
Codes
Building Code Resolution
2. Adopt and enforce
Solar-Ready
provisions in IRC and
IECC
Building Code Resolution
Adopt and enforce the solar-ready
provisions in IECC 2015 / IRC 2015
Appendix RB/U
Why?
-Renewable energy
-Beneficial electrification
Avon Update
Adoption of this provision is in
process
3. Provide education
and incentives to
support beneficial
electrification
Incentive Program
Provide opportunities or incentives
to encourage use of all-electric
heating systems including new
tech, utility rate options, net zero
homes, etc.
Why?
-Renewable energy
-Beneficial electrification
4. Apply Impact Fees
Based on Social Cost
of Carbon
Part 1: new mechanical
equipment
Part 2: exterior energy offset
program
Building Code Resolution
Part 1: Apply the SCC impact fee to new
heating (and cooling) equipment which relies
on fossil fuels, to accurately reconcile the
societal impact of the equipment and to
encourage a shift towards systems which run
on renewable energy and/or electric.
Part 2: Update the exterior energy offset
regulations in two ways:
1. Update the assumed energy use of the
system to be in line with Pitkin County
2. Update the fee in lieu to reflect the Social
Cost of Carbon fee for carbon produced by
exterior energy sources
Why?
-Renewable energy
-Beneficial electrification
-Methane emission reduction
What is the Social Cost of Carbon?
The Social Cost of Carbon is an estimate of the societal monetary impact
due to a changing climate on a per metric ton of CO2 equivalent basis, and
includes impacts to human health, changes in net agricultural productivity,
property damages from increased flood / storm risk.
In 2019, the State of Colorado adopted a Social Cost of Carbon of $46 per
ton as part of consideration of utility plan review, energy supply and policy
decision making requirements. This consideration requirement is also in
place for the Colorado PUC. Note, the $46 per MTCO2e is reflective of a
conservative damages scenario.
16
How would it work?
1.The code would encourage renewable energy or electricity for plug
loads and space heating / cooling.
2.A fee in lieu for installation of natural gas heating equipment would be
charged the Social Cost of Carbon $46 / mtCO2e based on assumed
emissions over an average 20-year operational lifecycle.
3.Focus on education, incentives, and effective case studies
4.Phase-in plan and exemption / assistance for income qualified
households recommended
5.Fees proposed to be utilized by local Energy Smart program
○Every $1 in incentives leverages $10 private investment
○$84 per metric ton CO2 equivalent
○$2.9 MM in direct economic stimulus / year
○Over $1 MM / year saved by participants 17
5. Install electric
capacity to
accommodate future
electric heating and
EV charging needs
Building Code Resolution
Provide a 200 amp All-in-one solar ready
electric service panel for all new
residential properties to ensure future
electrification of heating systems and
vehicles can be supported.
Provide a minimum number of EV
Capable, EV Ready, and EVSE equipped
parking spaces in all new construction for
commercial, residential, and multi-family
developments.
Why?
-Renewable energy
-Beneficial electrification
-Electrification of Transportation
Avon Update
Adoption of this provision is in process
6. Require 92% or
greater efficiency on
all new gas equipment
Building Code Resolution
Require any new commercial or residential
building using gas appliances or heating
equipment to be 92% or greater efficiency.
Require any addition or alteration of over
25% of total floor area replace existing gas
equipment with equipment that has an
efficiency of 92% or greater. Including any
mechanical equipment permits for existing
buildings.
Why?
-Energy Efficiency
Avon Update
Adoption of this provision is in process
7. Indoor Water
Efficiency
Building Code Resolution
All new fixtures must be
WaterSense Certified +
requirements for Public Lav Sink
and Public Metered Faucets
Meet appliance standards for water
efficiency
Why?
-Reduce indoor water use
8. Construction waste
management:
planning &
implementation
Building Code Resolution
Create a Construction Waste
Management plan, divert all C&D
waste that has an end market in
Eagle County, and produce a final
CWM plan with final project
diversion rates.
Why?
-Save landfill space
-Reduce emissions from C&D
waste in landfill
-Achieve diversion rate goal
9. Area for Storage &
Collection of
Recyclables and
Discarded Goods
Building Code Resolution / Land
Use Regulation
Provide space in every new
commercial and multi-fam building
for the collection and storage of
recycling, compost, and trash.
Why?
-Plan for waste diversion in new
construction
-Increase waste diversion for multi-
family and businesses
10. Light Pollution
Reduction
Land Use Regulation
Meet the following requirements for
outdoor lighting fixtures: lighting
controls, prescriptive/performance
method for total luminares,
backlight, uplight, and glare.
Why?
-Protect dark sky
-Protect nocturnal animals
Avon Update
Avon has operated with a Dark Sky
Ordinance since 2004. This
recommendation makes those
requirements stricter and expands
them beyond light shields
11. Sensitive Site
Setback
Land Use Regulation
Prohibit development activity in the
following areas:
1. Previously undeveloped land
having an elevation of lower than 5
ft above the elevation of the 100-yr
floodplain
2. Land within 75 feet of any fish
and wildlife habitat conservation
area
3. Land within 75 feet of a wetland
Why?
-Source water protection
-Flood impact mitigation
-Habitat/fish protection
12. Adoption of
NWCCOG Model
Water Efficiency
Ordinance
Land Use Regulation
Adopt the NWCCOG Model Water
Efficiency Ordinance which includes
sections on Water Supply,
Landscape Design, Soil
Quality/Health, Irrigation System
Design, Water Budgeting, Waste
Water.
Why?
-Reduce wasteful outdoor water
use
-Improve soil health/sequestration
13. Reference,
compliance, and
enforcement of
Colorado Revised
Statutes supporting
irrigation
Land Use Regulation
Senate Bill 13-183 dictates that no
HOA or other entity representing
multiple home-owners can restrict a
member of that HOA or entity from
planting non-turf landscaping,
xeriscaping, or any specific
landscape design.
Why?
-Outdoor water efficiency
14. Bike Racks for
new commercial
developments
Land Use Regulation
Provide a minimum number of
covered/non-covered bike parking
spaces for at least 5% of
anticipated building occupants or
0.5 spaces per dwelling unit for
multi-family developments.
Why?
-Reduce impacts of transportation
-Increase bike infrastructure
-Protect clearance of right-of-ways
and emergency egress
15. Encourage HERS
Performance Path
Incentive Program
Incentivize ERI performance path
for new residential construction.
Why?
-Energy Efficiency
-Air tightness
-Ease of building inspection
2021 IECC Changes Summary
●Energy improvement:Lead by EECC and many other stakeholders an
anticipated 10% energy savings over the 2018 IECC will be realized in the
2021 IECC.
●Electric vehicle charging infrastructure:Developed by SWEEP, ASE,
EEI and NBI, the provisions allow commercial, multifamily, and possibly
single-family buildings to support current and future needs for EV charging.
●Support to electrify building:Developed by NRDC, the proposal ensures
buildings can easily switch to electricity from fossil fuels for space and water
heating.
29
2021 IECC Changes Summary
●Commercial building efficiency:Lowers energy requirements by 5%
when using the performance/software modeling path.
●More flexibility for builders to comply with the residential code: Additional
option packages will become part of the code for residential construction
and increased options for builders to reach higher efficiency. This aligns
with a section in the commercial code.
●A zero-energy appendix: Developed by Architecture 2030, AIA, NBI,
NRDC and others. The appendix will support local code adoption for a zero-
energy path.
30
2021 IECC Changes Summary, continued
●Solar-ready appendix for commercial buildings will now include storage
readiness.
●Lighting improvements: Efficiency and lighting controls will become part of
the exterior lighting requirements for multifamily exterior lighting.
●Building enclosure changes:Increased efficiencies in walls, foundations,
air leakage.
●Residential Water Heating: New compact designs with minimal distance
between hot water source and the faucets/outlets.
31
2021 IECC Changes Summary, continued
●Residential insulation requirements: Some climate zones will see more
efficiency from insulation in the building enclosure. Roof insulation --R-60
●Improved residential air sealing requirements:By clarifying and
improving the language, builders and trades will have a better opportunity to
air seal homes appropriately.
●ERI pathway:The total performance pathway for new residential buildings
will see new ERI scores, the backstop for the building enclosure efficiency is
updated.
32
Town of Avon --Next Steps
1.Feedback on recommendations
2.Education / outreach, incentives, case studies
3.Adjust exterior energy use nexus BTU/ft2
4.Direction regarding path toward electrification
5.2021 IECC Building Resolution January 2022
Eagle County -presented on Feb 21st, 2020 -well received.
Town of Vail -meeting with building code official to be scheduled in March.
Town of Minturn -interested in presentation asap.
Town of Eagle -no action
Town of Gypsum -no action
33
Thank you!
34
Page 1 of 3
970 748 4049 gdaly@avon.org
TO: Honorable Mayor Smith Hymes and Council members
FROM: Greg Daly, Chief of Police, Deputy Chief Cosper,
Lance Richards, HR & Risk Management Director
RE: Town of Avon Coronavirus COVID-19 preparation
DATE: March 2, 2020
SUMMARY: The Avon Police Department and Town of Avon has been preparing for potential Coronavirus
COVID-19 outbreak that could impact town residents and town operations. Chief Daly and Deputy Chief
Cosper have been on multiple conference calls with our partners in Eagle County, to include the first
responder agencies, health care agencies, municipal and county governmental agencies. Eagle County
Public Health is the lead agency in Eagle County regarding managing preparation , response and incident
command for any potential COVID-19 case(s) that may present in Eagle County. The immediate concerns
are the protocols for first responder response to or management of patients that are presenting with
COVID-19 like symptoms. Protocols have been put in place to manage patients either by self-quarantine or
transport to an appropriate and prepared medical care facilit ies. In addition, we are identifying those
essential job functions to ensure emergency operation of town functions , how to provide proper personal
protective equipment (PPE) and appropriate training for that job function.
BACKGROUND: Deputy Chief Cosper has created a draft Continuity of Operations Plan (COOP). It is a
twelve-page document, based off existing models of a COOP with added features to address possible
pandemic conditions. The pandemic aspect of the COOP is based on the national strategy for pandemic
response. Lance Richards, Director of HR & Risk and Deputy Chief Cosper have been working closely to
complete this document and process.
This COOP considers:
• A pandemic coordinator
• A pandemic response team
• Risk communications to internal/external stakeholders and employees
• Methods of communications internal and externa l to the town
• Essential functions the town will provide
• Orders of succession/delegation of authority in town departments
• Continuity facilities
• Continuity communication systems and technology
• Essential records management
• Human resources
• Personal Protective Equipment (PPE) supplies
• Reconstitution of normal town operations
We are working with town directors to finalize what our essential functions are for the town. The COOP is
99% completed.
The county emergency manager has created a COVID-19 response coordination team. The coordination
team meets weekly (currently via phone but in person beginning March 9 th). At a request from the County
Emergency Manager Birch Barron, Deputy Chief Cosper is the Emergency Support Function (ESF) 13
Public Safety and Security Lead for the county. ESF functions are nominated disciplinary positions in the
Page 2 of 3
970 748 4049 gdaly@avon.org
Emergency Operations Center (EOC) in the Eagle County Building (e.g. ESF 8- Health & Medical, ESF
4/10- Firefighting & HazMat). He will attend all meetings and coordinate Emergency Operations Center
staffing if needed.
This coordination team produces a weekly Eagle County Public Health Situation Report (Sit Rep) regarding
COVID-19 for emergency responders, health and public health entities . Chief Daly and Deputy Chief
receive this update and can provide input as well.
Below is the current status of response efforts in the county:
• Eagle County Public Health DOC: Elevated Activity
• State of Colorado CDPHE DOC: Level 3 Activation: Elevated Activity, IMT and Epi Response
Team Activated
• Eagle County EOC: Monitoring/Advanced Coordination.
Activated EOC partners include: ESF 8 Health & Medical, ESF 4/10 Firefighting & HazMat, ESF 13 Public
Safety & Security, ESF 7 Resource/Finance and ESF 15 Public Information, Policy Group
Contacts for information regarding the pandemic efforts are listed below:
• Emergency Management- 970-471-0640, birch.barron@eaglecounty.us
• Eagle County Public Safety Information- ecemergency.org
• The Colorado Health Emergency Line- 1-877-462-2911
• Eagle County COVID-19 outbreak information- www.eaglecounty.us/COVID19
• Global Cases of COVID-19- Global Cases COVID-19 by Johns Hopkins CSSE
In the EOC structure there is a County Leadership/Policy Group. If the council or the town manager have
questions, we can relay those to the EOC but if the pandemic escalates and affects Avon then we may
consider having a Leadership/Policy representative in the EOC in the future (i.e. Mayor or councilor
representative).
EMERGENCY TOWN STAFFING: If the COVID-19 virus were to spread into Avon, the Town Manager can
modify town operations on a staggered basis as dictated by the outbreak’s progression through out the
community or based on public health directive or orders. Town government could be shut down with the
exception of certain essential functions. Some functions could operate remotely from home with certain
exceptions like picking up mail, going to bank and check printing. We envisage that general town
government, recreation center, special events and transit will be affected up to and possibly including
temporary or protracted closures. Skeleton staff from finance and IT may be physically needed for certain
limited tasks but 99% of their work could be accomplished remotely. Engineering and community
development could work remotely except for facilities staff and building inspection staff if and as needed.
Many of these decisions would be influenced by countywide and statewide protective orders. Police, Public
Works, Fleet and limited mobility staff would work to ensure continuity of operations.
If absolutely necessary, fleet operations could temporarily reside at the Eagle County Fleet facility in
Gypsum.
Page 3 of 3
970 748 4049 gdaly@avon.org
The Recreation Center is used as an emergency shelter only in the event of a storm during an event in
Nottingham Park and would not likely be used as housing in a pandemic situation. We are discussing other
facilities throughout Eagle County as alternative critical care medical facilities if needed.
Avon transit buses are cleaned on a daily basis. Should COVID-19 be established in our community,
transit buses will be cleaned and disinfected on a more freque nt basis as necessary. Depending on virus
progression, transit operations could be modified or scaled back as necessary.
FINANCIAL CONSIDERATIONS: The financial considerations at this time are minimal. We are most
concerned with having sufficent PPE for officers, mobility and public works staff who will be on the front
line. Supplies are limited but we are taking a countywide approach to have the necessary PPE for the first
responders. However, if the COVID-19 spreads more rapidly there may be more complex financial
considerations to address to include economic impacts. Town Manager Heil did comment at last council
meeting that the general fund reserve is in place to address a situation like this but hopes that we will not
have to rely on it.
We should also consider the financial impact on the Town and Employees. A general closure of Town
operations would mean that our part-time, seasonal employees (lifeguards, program instructors, some
transit operators) would go without work or pay. Full time employees will be required to work remotely, we
may have opportunities to re-allocate manpower in some instances. For example, a closed rec center
would require little-to-no remote support, so full time employees there could be used to support other areas
of the Town.
Should it become necessary to allocate network services or hardware beyond our current situation, there
could be additional costs incurred to maintain government operations . This might include software licenses
for remote access and deployment of laptops or desktops to employee homes.
There is considerable planning and coordination in place at town, county and state level and we will adjust
appropriately as the situation evolves.
The messaging from the Center of Disease Control emphasizes one of the most basic defensive tools
against this virus is vigorously washing hands for 20 seconds or more and avoid touching mouth or face
with your hand(s).
Thank you, Chief Greg Daly, Deputy Chief Cosper and Lance J. Richards.
###
97-748-4065 ddempsey@avon.org
TO: Honorable Mayor Smith Hymes and Council members
FROM: Eric Heil, Town Manager and
Danita Dempsey, CASE Manager
RE: Special Events & Coronavirus Impacts
DATE: March 4, 2020
SUMMARY: This report provides Council an update on the current status of contractual commitments to
special event expenditures and Town’s rights to cancel events if deemed appropriate due to Coronavirus.
At this time, Staff has no plans or recommendations to cancel any events during the 2020 event season
due to the coronavirus. A variety of contracts are either signed or in negotiations at this time which is
customary for the summer event season.
BACKGROUND: The CASE Committee and Staff presented a written report to Council at the Budget
Retreat on October 30, 2019 providing recommendations for third-party event producers receiving financial
contributions from the Town. Council provided direction to move forward with the CASE Committee
recommendations for third-party and Town produced special events.
Third Party Produced Events - Through verbal, electronic communications and staff reports to Council
the Town committed $151,500 in financial contributions to third-party event producers - see Table 1 below.
No special event agreements have been executed by either the Town or third-party event producers as of
the date of this report. Staff has communicated Town’s approval of funding through adoption of the budget
and Staff is aware that producers are already making plans and commitments for these events in reliance
on Town’s funding approval, as is customary at this time of the year for pre-event planning.
The special event agreement contains language which authorizes either party to cancel an event due to (1)
material terms not being fulfilled by either party; and, (2) force majeure. The Town may cancel an event for
“Force Majeure”, which means circumstances beyond the parties’ control; however, the Town is not entitled
to receive funds back which have been distributed if the Town cancels an event for Force Majeure.
The Event Cancellation language in the special event agreement is as follows.
EVENT CANCELLATION. The Event Manager may cancel the Event if material
terms of this Agreement are not substantially fulfilled in a timely manner which is
foreseen to result in an event which may compromise public safety or which will
negatively impact the reputation of the Town of Avon, or in the event of an unforeseen
force majeure event. Should Avon deem any term or terms of this Agreement unfulfilled
CONTRIBUTIONS & DONATIONS TOTALS
Vail Valley BrewFest 32,000.00$
Dancing in the Park (Two)60,000.00$
Circus Bella 35,000.00$
Beaver Creek Rodeo 10,000.00$
Triple Bypass 4,500.00$
Man of the Cliff 10,000.00$
TOTAL CONTRIBUTIONS & DONATIONS:151,500.00$
Table 1: 2020 Third-Party Donations & Contributions
Page 2 of 3
or in material breach, Avon shall give Producer written notice and Producer shall have
five (5) business days (or such longer time as mutually agreed by the Parties) to cure such
breach. Should Producer cure, this Agreement shall continue in full force and effect. If
Producer cancels the Event, or if the Producer is not able to cure and Avon elects to
terminate the Event, then (A) Avon shall remit to Producer all deposits less any Event
related expenditure incurred by Avon; (B) all funds provided by Avon for the Event shall
be returned in full; and (C) if Avon has dedicated resources toward production and
cancellation is less than ninety (90) days prior to the first day of the Event, Producer shall
pay Avon five thousand dollars ($5,000) as liquidated damages within ten (10) days; and
all such funds shall be provided to the other Party within thirty (30) days of the
cancellation. Any funds not returned to and received by Avon shall bear interest at the
rate set forth in Avon Municipal Code Chapter 3.32 – Interest on Past Due Accounts.
Neither Party shall be liable to the other for any lost profits, lost revenues, consequential
or special damages as a result of cancellation.
Town Produced Events:
1. Salute to the USA: The Town has executed a Performance Contract for the headlining talent at the
Town’s signature event on July 3rd; Salute to the USA. This contract contains the following clause
related to cancellation:
Purchaser Cancellation of Performance: If, for any reason (including, without
limitation, a cancellation under paragraphs 11.3 herein below), Purchaser shall
remain liable to Company for the full amount of the Guarantee due hereunder.
The pyrotechnic design and production contract for Salute to the USA has not been executed and the
vendor has been noticed of the Town’s intent to execute a contract. This contract is under Town
Attorney and staff review and contains the following language related to postponement and/or
cancelation:
In the event of inclement weather or other adverse conditions, so as to cause
postponement of any of these displays, it is agreed and understood that
PURCHASER will notify SELLER regarding the postponement date, normally
the following night, or at some future date through February 24th of the following
calendar year (2021). If the PURCHASER will not re-schedule the display by
February 24th of the following calendar year, or completely cancels the display,
the PURCHASER agrees to pay to the SELLER thirty percent (30%) of the cost
of the display ($13,500.00).”
2. AvonLIVE!: The Town sent an agreement to Peak Performances, Inc. for the talent acquisition and
management, and stage production for AvonLIVE! Peak Performances, Inc. has been actively making
talent offers based off direction from the Town. The agreement has not been executed and contains the
following language related to cancelation:
EVENT CANCELLATION. The CASE Manager may cancel the Events, a
single Event, if material terms of this Agreement are not substantially fulfilled in
a timely manner which is foreseen to result in an event which may compromise
Page 3 of 3
public safety or which will negatively impact the reputation of the Town of Avon,
or in the event of an unforeseen force majeure event. Should Avon deem any
term or terms of this Agreement unfulfilled or in material breach, Avon shall give
Contractor written notice and Contractor shall have five (5) business days (or such
longer time as mutually agreed by the Parties) to cure such breach. Should
Contractor cure, this Agreement shall continue in full force and effect. If
Contractor cancels the Events, or if the Contractor is not able to cure and Avon
elects to terminate the Events, then (A) Avon shall remit to Contractor all deposits
less any Events related expenditure incurred by Avon; and (B) all funds provided
by Avon for the Events shall be returned for Events which are cancelled and all
such funds shall be provided to the other Party within thirty (30) days of the
cancellation. Any funds not returned to and received by Avon shall bear interest
at the rate set forth in Avon Municipal Code Chapter 3.32 – Interest on Past Due
Accounts. Neither Party shall be liable to the other for any lost profits, lost
revenues, consequential or special damages as a result of cancellation.
3. Egg Hunt: The Town has also made commitments to vendors for the Egg Hunt event for activations,
operations, creative services, advertising and promotional services and materials and supplies. The
total committed expense to date is approximately $12,400.
INDUSTRY PRACTICE: Industry Practice for entertainment typically does not include cancellation clauses
at the election of the venue which requirement a refund of deposits. Many events require work and
expenses to be incurred prior to the event as well as commitments to scheduling. Avon’s special events
agreement provides a portion of funding upon signing the agreement which ranges from 30% to 100%
depending upon the nature of the event and Town’s relationship with the producer.
Avon has also made verbal commitments to Dancing in the Park/Vail Valley Foundation and Colorado
Classic. Cancelling such events would negatively impact Town’s good will and reputation within music and
sporting event industries.
OPTIONS: Council can choose (1) to proceed with agreements for all events, (2) cancel events, or (3)
defer commitments to events. Option 3 may result in Avon missing or losing opportunities for certain
bookings and event scheduling.
MANAGER’S RECOMMENDATION: Most Avon events are outside, have modest crowd sizes (i.e. less
than 2,000) and involve minor contact. If Council decided to cancel events due to Coronavirus, we would
suggest Salute to the USA (due to the crowd size and close proximity of attendees) and potentially Egg
Hunt if the coronavirus emerges in Eagle County.
Thank you, Eric and Danita
(970) 748-4055 swright@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Asst. Town Manager
RE: Ordinance No. 20-04 - 2020 COP Ordinance, First Reading
DATE: March 10, 2020
SUMMARY: First reading of Ordinance No. 20-04 to refinance the Town's Series 2010 Certificates of
Participation (COPs) is scheduled for March 10, 2020. The refinancing is a private placement. Proposals
are due from financial institutions on Friday, March 6. The ordinance delegates to the Mayor, the Town
Manager, and the Finance Director the authority to select the purchaser to sign a contract to purchase the
2020 Certificates. The Certificates are initially taxable and then convert to tax exempt certificates on the
conversion date in September, 2020. The ordinance is a parameters ordinance, with the parameters stated
below:
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 $4,500,000;
c) the maximum annual repayment amount of Base Rentals payable by the Town pursuant to the
Lease shall not exceed $500,000;
d) the maximum total repayment amount of Base Rentals payable by the Town pursuant to the Lease
shall not exceed $6,000,000;
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 2020 Certificates shall not exceed 5.00%.
The 2010 Certificates were originally issued to refinance the first Fleet Maintenance Facility 1998
Certificates and to issue an additional $3 million in proceeds for the Town's 20% match of the federal grant
used to construct the Avon Regional Transit Facility. The original amount of the 2010 certificates was
$6,680.000 and interest rates ranged from 2.00% to 5.00%.
Using current interest rates, it is estimated that the refunding issue would be in the amount of $4,050,000
with an interest rate of 2.25%. The maturity date of December 1, 2030 would not change. Present value
savings is estimated at $363,555 or 8.455% of the refunded bonds.
Bond Counsel Dee Wisor and Jonathan Heroux with Piper Sandler will be present at first reading to review
the transaction with Town Council and answer any questions.
PROPOSED MOTION: "I move to approve AN ORDINANCE AUTHORIZING THE LEASING OF CERTAIN
TOWN PROPERTY AND THE EXECUTION AND DELIVERY BY THE TOWN OF A SITE LEASE, A
LEASE PURCHASE AGREEMENT, AN ESCROW AGREEMENT AND OTHER FINANCING
DOCUMENTS IN CONNECTION THEREWITH; SETTING FORTH PARAMETERS AND RESTRICTIONS
WITH RESPECT TO THE REFUNDING OF CERTAIN CERTIFICATES OF PARTICIPATION; RATIFYING
ACTION PREVIOUSLY TAKEN CONCERNING THE REFERENCED TRANSACTIONS; AND PROVIDING
OTHER MATTERS RELATING THERETO"
Thank you, Scott
Page 2 of 2
ATTACHMENTS:
Attachment A - Piper Sandler Memorandum
Attachment B - Ordinance No. 20-04
Attachment C - Site Lease Agreement
Attachment D - Lease Purchase Agreement
Attachment E - Indenture of Trust
Attachment F - Escrow Agreement
1200 17TH STREET, SUITE 1250
DENVER, CO 80202
P [303] 405-0865 TF [800] 274-4405 F [303] 405-0891
Piper Sandler & Co.
Since 1895. Member SIPC and NYSE.
March 3, 2020
Scott Wright, Deputy Town Manager
Town of Avon
100 Mikaela Way
Avon, CO 81620
RE: Series 2010 COP Refinancing Opportunity
Dear Scott:
Please find a brief summary regarding the Town’s refunding opportunity as it relates to the currently
outstanding Series 2010 COP issue, which we worked with the Town on in 2010 to finance the Town’s
fleet maintenance facility.
Originally issued in a par amount of $6,680,000, today $4,300,000 remain outstanding, with interest rates
ranging from 3.5% to 5.0%. As you are aware over the last several months we have seen a drop in
interest rates, resulting in the opportunity to refinance the outstanding COP’s at a lower rate, resulting in
lower annual debt service payments.
As you know the Series 2010 COP’s have a call date of 12/1/20. Under the existing federal tax laws, the
COP’s can be currently refunded 90 days prior to that date on a tax exempt basis. Many issuers are
pursuing a taxable converting to tax exempt refinancing to take advantage of the historically low interest
rate we are experiencing today and refinance their debt prior to a current call date. The concept is the
Town will receive a taxable rate for the next 5 months which then converts to a tax exempt rate on 9/2/20.
Both interest rates are known today, so there is no market risk once the Town selects a bank and locks
the two interest rates.
As of last week we have sent out a term sheet to over 20 different banks for their review and potential
response to refinance the COP’s at lower interest rates. We expect to receive the various responses this
Friday March 6th. At that point we will review them with the Town staff for further presentation to counsel
at the March 10th meeting. I will be in attendance at the March 10th meeting to answer any questions the
council might have regarding the process and possible transaction.
The Town is not required to select any bank’s response, but if one is deemed advantageous, the Town
can enter into an agreement and close the COP refinancing in late April.
Please let me know of any questions you might have regarding my correspondence.
Sincerely,
P. Jonathan Heroux
Managing Director
Public Finance Investment Banking
Piper Sandler & Co.
PJonathan.Heroux@psc.com
Office: 303 405-0848
Cell: 720 556-0167
ATTACHMENT A
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 1 of 8
TOWN OF AVON, COLORADO
ORDINANCE NO. 20-04
SERIES OF 2020
AN ORDINANCE AUTHORIZING THE LEASING OF CERTAIN TOWN
PROPERTY AND THE EXECUTION AND DELIVERY BY THE TOWN
OF A SITE LEASE, A LEASE PURCHASE AGREEMENT, AN ESCROW
AGREEMENT AND OTHER FINANCING DOCUMENTS IN
CONNECTION THEREWITH; SETTING FORTH PARAMETERS AND
RESTRICTIONS WITH RESPECT TO THE REFUNDING OF CERTAIN
CERTIFICATES OF PARTICIPATION; RATIFYING ACTION
PREVIOUSLY TAKEN CONCERNING THE REFERENCED
TRANSACTIONS; AND PROVIDING OTHER MATTERS RELATING
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 purpose of financing the cost of refunding certain outstanding certificates of
participation and for constructing certain public improvements of the Town (the “Prior Project”),
the Town has previously executed and delivered:
i. A Site Lease Agreement dated as of November 1, 2010 (the “2010 Site
Lease”) between the Town and UMB Bank, n.a. pursuant to which the Town
leased the Town’s Fleet Maintenance Facility (the “2010 Leased Property”)
to UMB Bank, n.a., as trustee (the “2010 Trustee”).
ii. A Lease Purchase Agreement dated as of November 1, 2010 (the “2010
Lease”), by and between the Town and the 2010 Trustee, pursuant to
which the Town leased the Leased Property back from the 2010 Trustee.
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 2 of 8
WHEREAS, pursuant to an Indenture of Trust dated as of November 1, 2010 (the “2010
Indenture”), the 2010 Trustee, executed and delivered certain Certificates of Participation, Series
2010 in the original principal amount of $6,680,000, of which $4,300,000 is currently outstanding
(the “2010 Certificates”); and
WHEREAS, the 2010 Certificates are subject to prepayment, in full or in part, on December 1,
2020 or any date thereafter, at a price equal to the principal amount so redeemed plus accrued
interest to the redemption date, without a prior redemption premium; and
WHEREAS, the Council has determined, and does hereby determine, that it is in the best interest
of the Town and its inhabitants that the Town refinance the 2010 Certificates by exercising its
purchase option as provided in the 2010 Lease to refund and defease all of the outstanding 2010
Certificates and call such 2010 Certificates for prior redemption on or after December 1, 2020 (the
“Refunding Project”); and
WHEREAS, in connection with the Refunding Project, the 2010 Leased Property will be released
from the terms and provisions of the 2010 Site Lease, the 2010 Lease and the 2010 Indenture, and
will be conveyed to the Town.
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
Refunding 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
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 an eligible
commercial bank with trust powers, as trustee (the “2020 Trustee”) under an Indenture of Trust
(as hereinafter defined) pursuant to a Site Lease between the Town, as lessor, and the 2020 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 2020 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
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 3 of 8
WHEREAS, the 2020 Trustee will enter into an Indenture of Trust (the “Indenture”) pursuant to
which there is expected to be executed and delivered certain taxable convertible to tax-exempt
certificates of participation (the “2020 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 2020 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 2020 Certificates are expected to be used to finance the
Refunding 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; (ii) the proposed form of the Lease; and
(iii) the proposed form of Escrow Agreement between the Town and the 2020 Trustee with respect
to the Refunding Project.
WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings set
forth in the Lease and the Site Lease.
WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town
Council desires to comply with the requirements of the Avon Home Rule Charter by setting a
public hearing in order to provide the public an opportunity to provide public comment on this
Ordinance and that approval of this Ordinance on first reading does not constitute a representation
that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies
this Ordinance.
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
“2020 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 Escrow
Agreement, the effecting of the Refunding Project, and the execution and delivery of the 2020
Certificates is hereby ratified, approved and confirmed.
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 4 of 8
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 Refunding 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 2020 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 $4,500,000;
c) the maximum annual repayment amount of Base Rentals payable by the
Town pursuant to the Lease shall not exceed $500,000;
d) the maximum total repayment amount of Base Rentals payable by the Town
pursuant to the Lease shall not exceed $6,000,000;
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 2020 Certificates shall not exceed 5.00%.
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 2020 Certificates,
or to accept a binding bid for the 2020 Certificates and to execute any agreement or agreements in
connection therewith.
The Town Council hereby agrees and acknowledges that the proceeds of the 2020
Certificates will be used to finance the costs of the Refunding Project and to pay other costs of
issuance.
Section 5. Approval of Documents. The Site Lease, the Lease and the Escrow Agreement,
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, the Lease and the
Escrow Agreement, in substantially the forms and with substantially the same contents as
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 5 of 8
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 connection
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 2020 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 2020 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 2020 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 2020 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 2020 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 2020 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 2020 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
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 6 of 8
Town Council hereby further determines that the amount of rental payments to be received by the
Town from the 2020 Trustee pursuant to the Site Lease is reasonable consideration for the leasing
of the Leased Property to the 2020 Trustee for the term of the Site Lease as provided therein.
Section 9. Town Representatives. The Council hereby authorizes each of the Mayor, the
Town Manager and the Finance Director to act as Town Representatives under the Lease, or such
other person or persons who may be so designated in writing from time to time by the Mayor, as
further provided in the Lease
Section 10. Exercise of Option; Direction to 2010 Trustee. In order to effect the Refunding
Project, the Council has elected and does hereby declare its intent to exercise on the behalf and in
the name of the Town its option to redeem the outstanding 2010 Certificates set forth in the Sale
Certificate on the earliest applicable redemption date. The Town hereby irrevocably instructs the
2010 Trustee to give notice of refunding and defeasance to the Owners of the 2010 Certificates as
soon as practicable after the execution and delivery of the Certificates, in accordance with the
provisions of the Indenture and the Escrow Agreement between the Trust and the 2010 Trustee, as
escrow agent.
Section 11. No Recourse against 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 2020 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, or otherwise. By the acceptance of
the 2020 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 12. 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 13. 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 term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed alone
or together with another ordinance or ordinances, or part thereof, of the Town.
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 7 of 8
Section 14. Interpretation. This Ordinance shall be so interpreted and construed as to
effectuate its general purpose.
Section 15. 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 16. 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 17. 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 18. 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.
ATTACHMENT B
Ordinance 20-04 Authorizing the Leasing of Certain Town Property
First Reading - March 10, 2020
Page 8 of 8
INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED PUBLISHED
IN FULL AND REFERRED TO PUBLIC HEARING, and setting such public hearing for
March 24, 2020, at 5:00 p.m., at the Council Chambers of the Avon Municipal Building, located
at 100 Mikaela, Avon, Colorado, on March 10, 2020.
TOWN OF AVON, COLORADO
____________________________
Sarah Smith Hymes, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Brenda Torres, Town Clerk Paul Wisor, Town Attorney
INTRODUCED, FINALLY APPROVED, PASSED ON SECOND READING, AND
ORDERED PUBLISHED IN FULL on March 24, 2020.
____________________________
Sarah Smith Hymes, Mayor
ATTEST:
__________________________
Brenda Torres, Town Clerk
ATTACHMENT B
1
STATE OF COLORADO )
)
COUNTY OF EAGLE ) SS.
)
TOWN OF AVON )
I, Brenda Torres, 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 March 10, 2020, and was introduced, approved on second and final reading, and
ordered published in full in accordance with the Charter on March 24, 2020, which Ordinance has
not been revoked, 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 March 10, 2020, by an affirmative vote of a majority
of the membership of the entire Town Council as follows:
Councilmember Voting
“Yes”
Voting “No” Absent Abstaining
Sarah Smith Hymes, Mayor
Amy Phillips, Mayor Pro-Tem
Jennie Fancher
Scott Prince
Chico Thuon
Tamra Underwood
Jake Wolf
3. The Ordinance was duly moved and seconded, and the Ordinance was
approved on second and final reading, at the meeting of March 24, 2020, by an affirmative vote of
a majority of the membership of the entire Town Council as follows:
ATTACHMENT B
2
Councilmember Voting
“Yes”
Voting “No” Absent Abstaining
Sarah Smith Hymes, Mayor
Amy Phillips, Mayor Pro-Tem
Jennie Fancher
Scott Prince
Chico Thuon
Tamra Underwood
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 March 10, 2020, and March 24, 2020, 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 March ___, 2020, and March ___, 2020, 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.
ATTACHMENT B
3
WITNESS my hand and the seal of the Town affixed this ____ day of March 2020.
[ S E A L ]
_______________________________________
Town Clerk
ATTACHMENT B
A-1
EXHIBIT A
(Attach Notices of Meetings of March 10, 2020 and March 24, 2020)
ATTACHMENT B
B-1
EXHIBIT B
(Affidavits of Publication)
51929362.v1
ATTACHMENT B
AFTER RECORDATION PLEASE RETURN TO:
Butler Snow LLP
1801 California Street, Suite 5100
Denver, Colorado 80202
Attention: Kimberley K. Crawford, Esq.
Pursuant to Section 39-13-104(1)(j), Colorado Revised
Statutes, this Site Lease Agreement is exempt from the
documentary fee.
SITE LEASE AGREEMENT
DATED AS OF APRIL [__], 2020
BETWEEN
TOWN OF AVON, COLORADO
AS LESSOR
AND
[TRUSTEE],
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE,
AS LESSEE
ATTACHMENT C
1
This SITE LEASE AGREEMENT, dated as of April [__], 2020 (this “Site Lease”), is
by and between the TOWN OF AVON, COLORADO, a home rule municipality duly organized and
validly existing under the Constitution and laws of the State of Colorado (the “Town”), as lessor,
and [TRUSTEE], a national banking association duly organized and validly existing under the
laws of the United States of America, solely in its capacity as trustee under the Indenture (the
“Trustee”), as lessee.
PREFACE
Unless the context otherwise requires, capitalized terms used herein shall have the
meanings ascribed to them herein and in the Lease Purchase Agreement, dated as of April [__],
2020 (the “Lease”), between the Trustee, as lessor, and the Town, as lessee.
RECITALS
1. 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”).
2. 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.
3. 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.
4. The Town Council has determined that it is in the best interest of the Town and its
inhabitants that the Town refund and defease certain outstanding lease/purchase obligations (the
“Refunding Project”).
5. The Council has determined that it is in the best interests of the Town and its
inhabitants to provide for the financing the Refunding Project by entering into this Site Lease and
the Lease.
6. The Town owns in fee title, the Site (the “Site”) and the premises, buildings and
improvements located thereon, (as more particularly described in Exhibit A attached hereto, the
“Leased Property”). To accomplish the Refunding Project, the Trustee will acquire a leasehold
interest in the Site by leasing the Site from the Town pursuant to this Site Lease and will lease the
Site back to the Town pursuant to the Lease.
7. The Council has determined that it is in the best interest of the Town and its
residents and inhabitants to provide for the financing of the Refunding Project by entering into
this Site Lease and the Lease, and by leasing the Refunding Project from the Trustee pursuant to
the terms of the Lease, and subleasing the Site from the Trustee pursuant to the Lease.
ATTACHMENT C
2
8. The Trustee and the Town intend that this Site Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the Trustee is
leasing the Leased Property from the Town.
9. Contemporaneously with the execution and delivery of this Site Lease and the
Lease, the Trustee will execute and deliver an Indenture of Trust (the “Indenture”) pursuant to
which there is expected to be executed and delivered certain certificates of participation (the
“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.
10. The proceeds of the Certificates will be utilized for the Refunding Project, as well
as for the payment of the costs of execution and delivery of the Certificates.
11. The Town proposes to enter into this Site Lease with the Trustee as material
consideration for the Trustee’s agreement to lease the Leased Property to the Town pursuant to
the Lease. The Trustee shall prepay in full its rental payments due under this Site Lease which
rental payments shall be used by the Town to effect the Refunding Project, all pursuant to this
Site Lease, the Lease and the Indenture.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows;
Section 1. Site Lease and Terms. The Town hereby demises and leases to the
Trustee and the Trustee hereby leases from the Town, on the terms and conditions hereinafter set
forth, the Leased Property, subject to Permitted Encumbrances as described in Exhibit B hereto.
The term of this Site Lease shall commence on the date hereof and shall end on
December 31, 2040 (the “Site Lease Termination Date”), unless such term is sooner terminated
as hereinafter provided. If, prior to the Site Lease Termination Date, the Trustee has transferred
and conveyed the Trustee’s leasehold interest in all of the Leased Property pursuant to Article 11
of the Lease as a result of the Town’s payment of (a) the applicable Purchase Option Price
thereunder; or (b) all Base Rentals and Additional Rentals, all as further provided in Section 11.2
of the Lease, then the term of this Site Lease shall end in connection with such transfer and
conveyance.
The term of any sublease of the Leased Property or any portion thereof, or any
assignment of the Trustee’s interest in this Site Lease, pursuant to Section 5 hereof, the Lease
and the Indenture, shall not extend beyond December 31, 2040. At the end of the term of this
Site Lease, all right, title and interest of the Trustee, or any sublessee or assignee, in and to the
Leased Property, shall terminate. Upon such termination, the Trustee and any sublessee or
assignee shall execute and deliver to the Town any necessary documents releasing, assigning,
transferring and conveying the Trustee’s, sublessee’s or assignee’s interests in the Leased
Property.
Section 2. Rental. The Trustee has paid to the Town and the Town hereby
acknowledges receipt from the Trustee as and for rental hereunder, paid in advance, the sum of
ATTACHMENT C
3
$[_______], as and for all rent due hereunder, and other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged. The Town hereby determines
that such amount is reasonable consideration for the leasing of the Leased Property to the Trustee
for the term of this Site Lease.
Section 3. Purpose. The Trustee shall use the Leased Property solely for the purpose
of leasing the Leased Property back to the Town pursuant to the Lease and for such purposes as
may be incidental thereto; provided, that upon the occurrence of an Event of Nonappropriation or
an Event of Lease Default and the termination of the Lease, the Town shall vacate the Leased
Property, as provided in the Lease, and the Trustee may exercise the remedies provided in this
Site Lease, the Lease and the Indenture.
Section 4. Owner in Fee. The Town represents that (a) it is the owner in fee of the
Leased Property, subject only to Permitted Encumbrances as described in Exhibit B hereto, and
(b) the Permitted Encumbrances do not and shall not interfere in any material way with the
Leased Property. The Trustee acknowledges that it is only obtaining a leasehold interest in the
Leased Property and pursuant to this Site Lease.
Section 5. Sales, Assignments and Subleases. Unless an Event of Nonappropriation
or an Event of Lease Default shall have occurred and except as may otherwise be provided in the
Lease, the Trustee may not sell or assign its rights and interests under this Site Lease or sublet all
or any portion of the Leased Property, without the written consent of the Town.
In the event that (a) the Lease is terminated for any reason and (b) this Site Lease is not
terminated, the Trustee may sublease the Leased Property or any portion thereof, or sell or assign
the Trustee’s leasehold interests in this Site Lease, pursuant to the terms of the Lease and the
Indenture, and any purchasers from or sublessees or assignees of the Trustee may sell or assign
its interests in the Leased Property, subject to the terms of this Site Lease, the Lease and the
Indenture. The Town and the Trustee (or any purchasers from or assignees or sublessees of the
Trustee) agree that, except as permitted by this Site Lease, the Lease and the Indenture and
except for Permitted Encumbrances (including purchase options under the Lease), neither the
Town, the Trustee, nor any purchasers from or sublessees or assignees of the Trustee will sell,
mortgage or encumber the Leased Property or any portion thereof during the term of this Site
Lease.
The Trustee and any other person who has the right to use the Leased Property under this
Site Lease, at its own expense, may install equipment and other personal property in or on any
portion of the Leased Property unless it is permanently affixed to the Leased Property or removal
of it would materially damage the Leased Property, in which case it will become part of the
Leased Property.
Section 6. Right of Entry. The Town reserves the right, so long as no Event of
Nonappropriation or Event of Lease Default shall have occurred, for any of its duly authorized
representatives to enter upon the Leased Property at any reasonable time to inspect the same or to
make any repairs, improvements or changes necessary for the preservation thereof.
ATTACHMENT C
4
Section 7. Termination. The Trustee agrees, upon the termination of this Site Lease,
to quit and surrender all of the Leased Property, and agrees that any permanent improvements
and structures existing upon the Leased Property at the time of the termination of this Site Lease
shall remain thereon.
Section 8. Default. In the event the Trustee shall be in default in the performance of
any obligation on its part to be performed under the terms of this Site Lease, which default
continues for 30 days following notice and demand for correction thereof to the Trustee, the
Town may exercise any and all remedies granted by law, except that no merger of this Site Lease
and of the Lease shall be deemed to occur as a result thereof and that so long as any Certificates
are Outstanding and unpaid under the Indenture, the Base Rentals due under the Lease shall
continue to be paid to the Trustee except as otherwise provided in the Lease. In addition, so long
as any of the Certificates are Outstanding, this Site Lease shall not be terminated except as
described in Section 1 hereof.
Section 9. Quiet Enjoyment and Acknowledgment of Ownership. The Trustee at
all times during the term of this Site Lease shall peaceably and quietly have, hold and enjoy the
Leased Property, subject to the provisions of the Lease and the Indenture, and the Town hereby
acknowledges that the Trustee shall have a leasehold interest in all improvements or additions to
be built on the Leased Property subject to this Site Lease, the Lease and the Indenture.
Section 10. Trustee’s Disclaimer. It is expressly understood and agreed that (a) this
Site Lease is executed by [TRUSTEE] solely in its capacity as Trustee under the Indenture, and
(b) nothing herein shall be construed as creating any liability on [TRUSTEE] other than in its
capacity as Trustee under the Indenture. All financial obligations of the Trustee under this Site
Lease, except those resulting from its willful misconduct or negligence, are limited to the Trust
Estate.
Section 11. Taxes; Maintenance; Insurance. During the Lease Term of the Lease
and in accordance with the provisions of the Lease, including Sections 8.1 and 8.3 thereof, the
Town covenants and agrees to pay any and all taxes, assessments or governmental charges due in
respect of the Leased Property and all maintenance costs and utility charges in connection with
the Leased Property. In the event that (a) the Lease is terminated for any reason, and (b) this Site
Lease is not terminated, the Trustee, or any purchaser, sublessee or assignee of the Leased
Property (including the leasehold interests of the Trustee resulting from this Site Lease) shall pay
or cause to be paid when due, all such taxes, assessments or governmental charges and shall
maintain the Leased Property in good condition and working order. Any such payments that are
to be made by the Trustee shall be made solely from (a) the proceeds of such sale, subleasing or
assignment, (b) from the Trust Estate, or (c) from other moneys furnished to the Trustee under
Section 8.02(m) of the Indenture, and in the absence of available moneys identified in the
preceding clauses (a) through (c), the Trustee shall be under no obligation to pay or cause to be
paid when due, all such taxes, assessments or governmental charges and maintain the Leased
Property in good condition and working order.
The provisions of the Lease shall govern with respect to the maintenance of insurance
hereunder during the Lease Term of the Lease. In the event that (a) the Lease is terminated for
any reason and (b) this Site Lease is not terminated, the Trustee, or any sublessee, purchaser, or
ATTACHMENT C
5
assignee of the Leased Property shall obtain and keep in force, (i) commercial general liability
insurance against claims for personal injury, death, or damage to property of others occurring on
or in the Leased Property in an amount not less than the limitations provided in the Colorado
Governmental Immunity Act (Article 10, Title 24, Colorado Revised Statutes, as heretofore or
hereafter amended), and (ii) property insurance in an amount not less than the full replacement
value of the improvements and structures constituting the Leased Property. Any such insurance
that is to be obtained by the Trustee shall be paid for solely from (a) the proceeds of such
subleasing, sale, or assignment, (b) from the Trust Estate, or (c) from other moneys furnished to
the Trustee under Section 8.02(m) of the Indenture and in the absence of available moneys
identified in the preceding clauses (a) through (c), the Trustee shall be under no obligation to
obtain or keep in force such insurance coverages. All such insurance shall name the Town as
insured and the Trustee as an additional insured or loss payee. The Town and the Trustee shall
waive any rights of subrogation with respect to the Trustee, any sublessee, purchaser, or
assignee, and the Town, and their members, directors, officers, agents, and employees, while
acting within the scope of their employment and each such insurance policy shall contain such a
waiver of subrogation by the issuer of such policy.
Nothing in the preceding paragraphs or in this Site Lease shall be interpreted or construed
to require the Trustee to sublease all or any portion of the Leased Property or sell or assign its
interests in this Site Lease or in the Leased Property, in the event that the Lease is terminated for
any reason and this Site Lease is not terminated.
Section 12. Damage, Destruction or Condemnation. The provisions of the Lease
shall govern with respect to any damage, destruction or condemnation of the Leased Property
during the Lease Term of the Lease. In the event that (a) the Lease is terminated for any reason
and (b) this Site Lease is not terminated, and either (i) the Leased Property or any portion thereof
is damaged or destroyed, in whole or in part, by fire or other casualty, or (ii) title to or use of the
Leased Property or any part thereof shall be taken under the exercise of the power of eminent
domain, the Town and the Trustee, or any sublessee, purchaser or assignee of the Leased
Property from the Trustee shall cause the Net Proceeds of any insurance claim or condemnation
award to be applied in accordance with the provisions of Article 9 of the Lease.
Section 13. Hazardous Substances. Except for customary materials necessary for
operation, cleaning and maintenance of the Leased Property, none of the Town, the Trustee or
any sublessee, purchaser or assignee of the Leased Property from the Trustee shall cause or
permit any Hazardous Substance to be brought upon, generated at, stored or kept or used in or
about the Leased Property without prior written notice to the Town and the Trustee and all
Hazardous Substances, including customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, will be used, kept and stored in a manner that
complies with all laws regulating any such Hazardous Substance so brought upon or used or kept
on or about the Leased Property, provided unless the Trustee has exercised its right to take
possession of the Leased Property after the occurrence and continuance of an Event of Lease
default, the Trustee shall have no responsibility under this Section to monitor or investigate
whether the Leased Property complies with environmental laws or its subject to any hazardous
substance. If the presence of Hazardous Substance on the Leased Property caused or permitted
by the Town, the Trustee or any sublessee, purchaser or assignee of the Leased Property from the
Trustee, as the case may be, results in contamination of the Leased Property, or if contamination
ATTACHMENT C
6
of the Leased Property by Hazardous Substance otherwise occurs for which the Town, the
Trustee or any sublessee or assignee of the Leased Property, as the case may be, is legally liable
for damage resulting therefrom, then the Town, the Trustee or any sublessee, purchaser or
assignee of the Leased Property from the Trustee, as the case may be, shall reimburse the other
party for its reasonable and necessary legal expenses to defend the parties hereto or assignees
hereof that have not caused or permitted such contamination and are not so legally liable with
respect to this Site Lease from claims for damages, penalties, fines, costs, liabilities or losses;
provided that the cost of such defense, (a) in the case of the Trustee, shall be payable solely from
the Trust Estate, or (b) in the case of the Town, shall be payable only if the cost of such defense
has been annually appropriated by the Town. This duty to reimburse legal expenses is not an
indemnification. It is expressly understood that none of the Town, the Trustee or any sublessee,
purchaser or assignee is indemnifying any other person with respect to this Site Lease. Without
limiting the foregoing, if the presence of any Hazardous Substance on the Leased Property
caused or permitted by:
(a) the Trustee after the Trustee has exercised its right to take possession of
the Leased Property after the occurrence and continuance of an Event of Lease Default,
or any sublessee, purchaser or assignee of the Leased Property from the Trustee, as the
case may be, results in any contamination of the Leased Property, the Trustee or any
sublessee, purchaser or assignee of the Leased Property from the Trustee, as the case may
be, shall provide prior written notice to the Town and the Trustee and promptly take all
actions, solely at the expense of the Trust Estate as are necessary to effect remediation of
the contamination in accordance with legal requirements; or
(b) the Town, results in any contamination of the Leased Property, the Town
shall provide prior written notice to the Trustee and promptly take all actions, solely at
the expense of the Town, which expenses shall constitute Additional Rentals, as are
necessary to effect remediation of the contamination in accordance with legal
requirements.
Section 14. Third Party Beneficiaries. It is expressly understood and agreed that the
Owners of the outstanding Certificates are third party beneficiaries to this Site Lease and
enforcement of the terms and conditions of this Site Lease, and all rights of action relating to
such enforcement, shall be strictly reserved to the Town, as Lessor and the Trustee, as Lessee,
and their respective successors and assigns, and to the Owners of the Certificates. Except as
hereinafter provided, nothing contained in this Site Lease shall give or allow any such claim or
right of action by any other or third person on this Site Lease. It is the express intention of the
Town and the Trustee that any person other than the Town, the Trustee or the Owners of the
Certificates receiving services or benefits under this Site Lease shall be deemed to be an
incidental beneficiary only.
Section 15. Partial Invalidity. If any one or more of the terms, provisions, covenants
or conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or
decree of which becomes final, none of the remaining terms, provisions, covenants and
conditions of this Site Lease shall be affected thereby, and each provision of this Site Lease shall
be valid and enforceable to the fullest extent permitted by law.
ATTACHMENT C
7
Section 16. No Merger. The Town and the Trustee intend that the legal doctrine of
merger shall have no application to this Site Lease and that neither the execution and delivery of
the Lease by the Trustee and the Town nor the exercise of any remedies under this Site Lease or
the Lease shall operate to terminate or extinguish this Site Lease or the Lease, except as
specifically provided herein and therein.
Section 17. Amendments. This Site Lease may only be amended, changed, modified
or altered as provided in the Indenture.
Section 18. Notices. All notices, statements, demands, consents, approvals,
authorizations, offers, designations, requests or other communications hereunder by either party
to the other shall be in writing and shall be sufficiently given and served upon the other party if
delivered personally or if mailed shall be made by United States registered mail, return receipt
requested, postage prepaid, at the addresses indicated in the Lease, or to such other addresses as
the respective parties may from time to time designate in writing, or in such other manner as
authorized by the Town or the Trustee, as the case may be.
Section 19. Recitals. The Recitals set forth in this Site Lease are hereby incorporated
by this reference and made a part of this Site Lease.
Section 20. Section Headings. All section headings contained herein are for
convenience of reference only and are not intended to define or limit the scope of any provision
of this Site Lease.
Section 21. Execution. This Site Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original but all together shall constitute but
one and the same Site Lease.
Section 22. Governing Law. This Site Lease shall be governed by and construed in
accordance with the law of the State of Colorado without regard to choice of law analysis.
Section 23. No Waiver of Governmental Immunity. No provision of this Site Lease
shall act or be deemed to be a waiver by the Town of the Colorado Governmental Immunity Act,
CRS 24-10-101,et seq.
Section 24. Electronic Transactions. The parties hereto agree that the transactions
described herein may be conducted and related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action, or suit in the appropriate court of law.
Section 25. Annual Appropriation. Consistent with Article X, §20 of the Colorado
Constitution, any financial obligation of the Town under this Site Lease shall be from year to
year only, shall be subject to annual appropriation, shall extend only to monies currently
appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond
the current fiscal year. To the extent that any of the Town's obligations under this Site Lease are
deemed to constitute a multiple fiscal-year financial obligation, the Town’s performance will be
conditioned upon annual appropriation by the Board, in its sole discretion.
ATTACHMENT C
8
IN WITNESS WHEREOF, the Town and the Trustee have caused this Site Lease to be
executed by their respective officers thereunto duly authorized, all as of the day and year first
above written.
TOWN OF AVON, COLORADO,
as Lessor
[TRUSTEE], solely in its capacity as Trustee
under the Indenture, as Lessee
By: By:
Sarah Smith Hymes, Mayor [AUTHORIZED PARTY], Senior
Vice President
[SEAL]
ATTEST:
____________________________________
Brenda Torres, Town Clerk
ATTACHMENT C
9
STATE OF COLORADO )
)
COUNTY OF EAGLE ) SS.
)
TOWN OF AVON )
The foregoing instrument was acknowledged before me this _____ day of April, 2020, by
Sarah Smith Hymes and Brenda Torres, as Mayor and Town Clerk, respectively, of Town of
Avon, Colorado.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
************************
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER)
The foregoing instrument was acknowledged before me this _____ day of April 2020, by
[AUTHORIZED PARTY], as Senior Vice President of [TRUSTEE], as Trustee.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
ATTACHMENT C
A-1
EXHIBIT A
DESCRIPTION OF THE LEASED PROPERTY:
ATTACHMENT C
B-1
EXHIBIT B
PERMITTED ENCUMBRANCES
“Permitted Encumbrances” means, as of any particular time: (a) liens for taxes and
assessments not then delinquent, or liens which may remain unpaid pending contest pursuant to
the provisions of the Lease; (b) this Site Lease, the Lease, the Indenture and any related fixture
filing and any liens arising or granted pursuant to the Lease or the Indenture; (c) utility, access
and other easements and rights of way, licenses, permits, party wall and other agreements,
restrictions and exceptions which the Mayor or the Town Representative certifies will not
materially interfere with or materially impair the Leased Property, including rights or privileges
in the nature of easements, licenses, permits and agreements as provided in the Lease; and (d) the
easements, covenants, restrictions, liens and encumbrances (if any) to which title to the Leased
Property was subject when leased to the Trustee pursuant to this Site Lease, as shown below and
which do not interfere in any material way with the Leased Property.
The easements, covenants, restrictions, liens and encumbrances (if any) to which title to
the Leased Property was subject when leased to the Trustee pursuant to this Site Lease are as
follows:
1. Liens for ad valorem taxes and special assessments not then delinquent, if
applicable.
2. This Site Lease.
3. The Lease.
4. All other encumbrances appearing of record on the date hereof.
51929485.v1
ATTACHMENT C
AFTER RECORDATION PLEASE RETURN TO:
Butler Snow LLP
1801 California Street, Suite 5100
Denver, Colorado 80202
Attention: Kimberley K. Crawford, Esq.
Pursuant to Section 39-13-104(1)(j), Colorado Revised Statutes, this Lease Purchase Agreement is exempt from the
documentary fee.
LEASE PURCHASE AGREEMENT
DATED AS OF APRIL [__], 2020
BETWEEN
[TRUSTEE],
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE IDENTIFIED HEREIN,
AS LESSOR
AND
TOWN OF AVON, COLORADO,
AS LESSEE
ATTACHMENT D
i
This Table of Contents is not a part of this Lease and is only for convenience of
reference.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ........................................................................................................... 4
Section 1.1 Certain Funds and Accounts. .............................................................................. 4
Section 1.2 Definitions........................................................................................................... 4
ARTICLE 2 REPRESENTATIONS AND COVENANTS; RELATIONSHIP OF TOWN AND
TRUSTEE ..................................................................................................................................... 10
Section 2.1 Representations and Covenants of the Town. ................................................... 10
Section 2.2 Representations and Covenants of the Trustee. ................................................ 11
Section 2.3 Nature of Lease. ................................................................................................ 12
Section 2.4 Town Acknowledgment of Certain Matters. .................................................... 12
Section 2.5 Relationship of Town and Trustee. ................................................................... 13
ARTICLE 3 LEASE OF THE LEASED PROPERTY ................................................................ 14
ARTICLE 4 LEASE TERM ......................................................................................................... 15
Section 4.1 Duration of Lease Term. ................................................................................... 15
Section 4.2 Termination of Lease Term. ............................................................................. 16
ARTICLE 5 ENJOYMENT OF THE LEASED PROPERTY ..................................................... 17
Section 5.1 Trustee’s Covenant of Quiet Enjoyment........................................................... 17
Section 5.2 Town’s Need for the Leased Property; Determinations as to Fair Value and Fair
Purchase Price. .................................................................................................. 17
ARTICLE 6 PAYMENTS BY THE TOWN ................................................................................ 18
Section 6.1 Payments to Constitute Currently Budgeted Expenditures of the Town. ......... 18
Section 6.2 Base Rentals, Purchase Option Price and Additional Rentals. ......................... 18
Section 6.3 Manner of Payment. .......................................................................................... 19
Section 6.4 Nonappropriation. ............................................................................................. 20
Section 6.5 Holdover Tenant. .............................................................................................. 21
Section 6.6 Prohibition of Adverse Budget or Appropriation Modifications. ..................... 22
ARTICLE 7 TITLE TO LEASED PROPERTY; LIMITATIONS ON ENCUMBRANCES ...... 23
Section 7.1 Title to the Leased Property; Title Insurance. ................................................... 23
Section 7.2 No Encumbrance, Mortgage or Pledge of the Leased Property........................ 23
ARTICLE 8 MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES ................. 24
Section 8.1 Maintenance of the Leased Property by the Town. .......................................... 24
ATTACHMENT D
ii
Section 8.2 Modification of the Leased Property; Installation of Furnishings and Machinery
of the Town. ...................................................................................................... 24
Section 8.3 Taxes, Other Governmental Charges and Utility Charges................................ 24
Section 8.4 Provisions For Liability and Property Insurance. ............................................. 25
Section 8.5 Advances. .......................................................................................................... 25
Section 8.6 Granting of Easements. ..................................................................................... 26
ARTICLE 9 DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET
PROCEEDS .................................................................................................................................. 27
Section 9.1 Damage, Destruction and Condemnation. ........................................................ 27
Section 9.2 Obligation to Repair and Replace the Leased Property. ................................... 27
Section 9.3 Insufficiency of Net Proceeds. .......................................................................... 28
Section 9.4 Cooperation of the Trustee................................................................................ 29
ARTICLE 10 DISCLAIMER OF WARRANTIES; OTHER COVENANTS ............................. 30
Section 10.1 Disclaimer of Warranties. ................................................................................. 30
Section 10.2 Further Assurances and Corrective Instruments. .............................................. 30
Section 10.3 Compliance with Requirements. ....................................................................... 30
Section 10.4 Release and Substitution of Leased Property.................................................... 30
Section 10.5 Tax Covenants. ................................................................................................. 31
Section 10.6 Covenant to Reimburse Legal Expenses. .......................................................... 32
Section 10.7 Access to the Leased Property; Rights to Inspect Books. ................................. 32
ARTICLE 11 PURCHASE OPTION ........................................................................................... 33
Section 11.1 Purchase Option. ............................................................................................... 33
Section 11.2 Conditions for Purchase Option. ....................................................................... 33
Section 11.3 Manner of Conveyance. .................................................................................... 33
ARTICLE 12 ASSIGNMENT AND SUBLEASING .................................................................. 35
Section 12.1 Assignment by the Trustee; Replacement of the Trustee. ................................ 35
Section 12.2 Assignment and Subleasing by the Town. ........................................................ 35
ARTICLE 13 EVENTS OF LEASE DEFAULT AND REMEDIES ........................................... 36
Section 13.1 Events of Lease Default Defined. ..................................................................... 36
Section 13.2 Remedies on Default. ........................................................................................ 36
Section 13.3 Limitations on Remedies. ................................................................................. 38
Section 13.4 No Remedy Exclusive....................................................................................... 38
Section 13.5 Waivers. ............................................................................................................ 38
Section 13.6 Agreement to Pay Attorneys’ Fees and Expenses. ........................................... 38
Section 13.7 Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. 38
ATTACHMENT D
iii
ARTICLE 14 MISCELLANEOUS .............................................................................................. 40
Section 14.1 Sovereign Powers of Town. .............................................................................. 40
Section 14.2 Notices. ............................................................................................................. 40
Section 14.3 Third Party Beneficiaries. ................................................................................. 40
Section 14.4 Binding Effect. .................................................................................................. 40
Section 14.5 Amendments. .................................................................................................... 40
Section 14.6 Amounts Remaining in Funds. ......................................................................... 40
Section 14.7 Triple Net Lease. ............................................................................................... 41
Section 14.8 Computation of Time. ....................................................................................... 41
Section 14.9 Payments Due on Holidays. .............................................................................. 41
Section 14.10 Severability. ...................................................................................................... 41
Section 14.11 Execution in Counterparts................................................................................. 41
Section 14.12 Applicable Law. ................................................................................................ 41
Section 14.13 The Trustee Is Independent of the Town. ......................................................... 41
Section 14.14 Governmental Immunity. .................................................................................. 42
Section 14.15 Recitals. ............................................................................................................. 42
Section 14.16 Captions. ........................................................................................................... 42
Section 14.17 Trustee’s Disclaimer. ........................................................................................ 42
Section 14.18 Electronic Transactions. .................................................................................... 42
EXHIBIT A: DESCRIPTION OF LEASED PROPERTY ....................................................... A-1
EXHIBIT B: PERMITTED ENCUMBRANCES .....................................................................B-1
EXHIBIT C: BASE RENTALS SCHEDULE ..........................................................................C-1
EXHIBIT D: FORM OF NOTICE OF LEASE RENEWAL ................................................... D-1
ATTACHMENT D
1
This LEASE PURCHASE AGREEMENT, dated as of April [__], 2020 (this “Lease”), is
by and between [TRUSTEE], Denver, Colorado, a national banking association duly organized
and validly existing under the laws of the United States of America, solely in its capacity as
trustee under the Indenture (the “Trustee”), as lessor, and the Town of Avon, Colorado, a
Colorado home rule municipality (the “Town”), as lessee.
PREFACE
All capitalized terms used herein will have the meanings ascribed to them in Article 1 of
this Lease.
RECITALS
1. 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”).
2. 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.
3. 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.
4. For the purpose of financing the cost of refunding certain outstanding certificates
of participation and for constructing certain public improvements of the Town (the “Prior
Project”), the Town has previously executed and delivered:
A. A Site Lease Agreement dated as of November 1, 2010 (the “2010 Site
Lease”) between the Town and the Trustee pursuant to which the Town
leased the Town’s Fleet Maintenance Facility (the “2010 Leased
Property”) to UMB Bank, n.a., as trustee (the “Trustee”).
B. A Lease Purchase Agreement dated as of November 1, 2010 (the “2010
Lease”), by and between the Town and the Trustee, pursuant to which the
Town leased the Leased Property back from the Trustee.
5. Pursuant to an Indenture of Trust dated as of November 1, 2010 (the “2010
Indenture”), the Trustee, executed and delivered certain Certificates of Participation, Series 2010
in the original principal amount of $6,680,000, of which $4,300,000 is currently outstanding (the
“2010 Certificates”).
6. The 2010 Certificates are subject to prepayment, in full or in part, on December 1,
2020 or any date thereafter, at a price equal to the principal amount so redeemed plus accrued
interest to the redemption date, without a prior redemption premium.
ATTACHMENT D
2
7. The Council has determined, and does hereby determine, that it is in the best
interest of the Town and its inhabitants that the Town refinance the 2010 Certificates by
exercising its purchase option as provided in the 2010 Lease to refund and defease all of the
outstanding 2010 Certificates and call such 2010 Certificates for prior redemption on or after
December 1, 2020 (the “Refunding Project”); and
8. The Council has determined that it is in the best interests of the Town and its
inhabitants to provide for the financing of the Refunding Project by entering into the Site Lease
and this Lease.
9. The Town owns, in fee title, the Site and the premises, buildings and
improvements located thereon (as more particularly described in Exhibit A attached hereto, (the
“Leased Property”). To accomplish the Refunding Project, the Trustee, solely in its capacity of
Trustee under the Indenture, will acquire a leasehold interest in the Leased Property by leasing
the Leased Property from the Town pursuant to the Site Lease and the Trustee will lease the
Leased Property back to the Town pursuant to this Lease.
10. The payment by the Town of Base Rentals and Additional Rentals hereunder in
any future Fiscal Year is subject to specific Appropriations and the renewal by the Council of
this Lease for such future Fiscal Year. The Base Rentals and Additional Rentals payable by the
Town under this Lease shall constitute current expenditures of the Town.
11. Neither this Lease nor the payment by the Town of Base Rentals or Additional
Rentals hereunder shall be deemed or construed as creating an indebtedness of the Town within
the meaning of any provision of the Colorado constitution, the Charter or the laws of the State of
Colorado concerning or limiting the creation of indebtedness by the Town, and shall not
constitute a multiple fiscal year direct or indirect debt or other financial obligation of the Town
within the meaning of Article X, Section 20(4) of the Colorado constitution or a mandatory
charge or requirement against the Town in any ensuing Fiscal Year beyond the then current
Fiscal Year. The Town’s obligation under this Lease to pay Base Rentals and Additional Rentals
(as each is defined in this Lease) 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 direct or indirect Town debt or other financial obligation of the Town within
the meaning of any constitutional, statutory or Charter 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 this Lease
shall be in effect.
12. Contemporaneously with the execution and delivery of the Site Lease and this
Lease, the Trustee will execute and deliver an Indenture of Trust (the “Indenture”) pursuant to
which there will be executed and delivered certain certificates of participation (the
“Certificates”) dated as of their date of delivery that shall evidence proportionate interests in the
right to receive certain Revenues (as defined in this 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 this Lease shall be in
effect.
ATTACHMENT D
3
13. The net proceeds of the Certificates, together with other available money of the
Town, will be applied to finance the Refunding Project and the costs of issuance related thereto.
14. The Council has determined that it is in the best interests of the Town and its
inhabitants to execute and deliver the Site Lease and this Lease to finance the Refunding Project
and to pay the costs of issuance in connection therewith.
15. The Supplemental Public Securities Act, part 2 of article 57 of title 11, Colorado
Revised Statutes (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 to an
issue of securities.
16. The Trustee and the Town intend that this Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the Town is leasing
the Leased Property from the Trustee.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the Trustee and the Town agree as follows:
ATTACHMENT D
4
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Funds and Accounts. All references herein to any funds and
accounts shall mean the funds and accounts so designated which are established under the
Indenture.
Section 1.2 Definitions. All capitalized terms used herein and not otherwise defined
shall have the meanings given to them in the Indenture, unless the context otherwise requires.
Capitalized terms used herein shall have the following meanings under this Lease:
“Additional Certificates” means Additional Certificates which may be executed and
delivered pursuant to the Indenture.
“Additional Rentals” means the payment or cost of all:
(a) (i) reasonable expenses and fees of the Trustee related to the performance
or discharge of its responsibilities under the provisions of this Lease, the Site Lease or the
Indenture, including the reasonable fees and expenses of any person or firm employed by
the Town to make rebate calculations under the provisions of Section 3.05 of the
Indenture and the expenses of the Trustee in respect of any policy of insurance or surety
bond obtained in respect of the Certificates executed and delivered with respect to this
Lease, (ii) the cost of insurance premiums and insurance deductible amounts under any
insurance policy reasonably deemed necessary by the Trustee to protect the Trustee from
any liability under this Lease, and approved by the Town Representative, which approval
shall not be unreasonably withheld, (iii) reasonable legal fees and expenses incurred by
the Trustee to defend the Trust Estate or the Trustee from and against any legal claims,
and (iv) reasonable expenses and fees of the Trustee incurred at the request of the Town
Representative;
(b) taxes, assessments, insurance premiums, utility charges, maintenance,
upkeep, repair and replacement with respect to the Leased Property and as otherwise
required under this Lease;
(c) payments into the Rebate Fund for rebate payments as provided in this
Lease; and
(d) all other charges and costs (together with all interest and penalties that
may accrue thereon in the event that the Town shall fail to pay the same, as specifically
set forth in this Lease) which the Town agrees to assume or pay as Additional Rentals
under this Lease.
Additional Rentals shall not include Base Rentals.
“Appropriation” means the action of the Council in annually making moneys available
for all payments due under this Lease, including the payment of Base Rentals and Additional
Rentals.
ATTACHMENT D
5
“Approval of Special Counsel” means an opinion of Special Counsel to the effect that the
matter proposed will not adversely affect the excludability from gross income for federal income
tax purposes of the Interest Portion of the Base Rentals paid by the Town under this Lease.
“Base Rentals” means the rental payments payable by the Town during the Lease Term,
which constitute payments payable by the Town for and in consideration of the right to possess
and use the Leased Property as set forth in Exhibit C (Base Rentals Schedule) hereto. Base
Rentals does not include Additional Rentals.
“Base Rentals Payment Dates” means the Base Rentals Payment Dates set forth in
Exhibit C (Base Rentals Schedule) hereto.
“Business Day” means any day, other than a Saturday, Sunday or legal holiday or a day
(a) on which banks located in Denver, Colorado are required or authorized by law or executive
order to close or (b) on which the Federal Reserve System is closed.
“Certificates” means the “Taxable/Convertible to Tax-Exempt Refunding Certificates of
Participation, Series 2020, Evidencing Proportionate Interests in the Base Rentals and other
Revenues under an annually renewable Lease Purchase Agreement dated as of April [__], 2020,
between [TRUSTEE], solely in its capacity as trustee under the Indenture, as lessor, and the
Town of Avon, Colorado, as lessee” dated as of their date of delivery, executed and delivered
pursuant to the Indenture.
“Charter” means the home rule charter of the Town, and any amendments or supplements
thereto.
“Conversion Date” means the date on which the Certificates bearing interest at the
Taxable Rate is reissued (for federal income tax purposes) as Certificates bearing interest at the
Tax-Exempt Rate, which date is expected to be on or after September 2, 2020.
“Conversion Opinion” means an opinion of Special Counsel upon which the Purchaser is
entitled to rely to the effect that, on and after the Conversion Date, the interest on the Certificates
reissued after such date will be excluded from the gross income of the recipients for federal and
State income tax purposes.
“Costs of Execution and Delivery” means all items of expense directly or indirectly
payable by the Trustee related to the authorization, execution and delivery of the Site Lease and
this Lease and related to the authorization, sale, execution and delivery of the Certificates, as
further defined in the Indenture.
“Council” means the Town Council of the Town or any successor to its functions.
“Counsel” means an attorney at law or law firm (who may be counsel for the Trustee)
who is satisfactory to the Town.
“CRS” means Colorado Revised Statutes.
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“Escrow Account” means a special fund and separate trust account to be established and
maintained pursuant to the Authorizing Resolution and the Escrow Agreement for the purpose of
paying the principal of and interest on the Remaining 2006 Bonds.
“Escrow Agent” means [TRUSTEE], Denver, Colorado, and any successor and assign
thereof, being a commercial bank, a member of the Federal Deposit Insurance Corporation and
having full and complete trust powers, where the Escrow Account is established and maintained.
“Escrow Agreement” means the “Refunding Escrow Agreement,” dated as of the Closing
Date, entered into by and between the Town and the Trustee, as Escrow Agent, concerning the
establishment and maintenance of the Escrow Account.
“Event(s) of Lease Default” means any event as defined in Section 13.1 of this Lease.
“Event of Nonappropriation” means the termination and non-renewal of this Lease by the
Town, determined by the Council’s failure, for any reason, to appropriate by the last day of each
Fiscal Year, (a) sufficient amounts to be used to pay Base Rentals due in the next Fiscal Year
and (b) sufficient amounts to pay such Additional Rentals as are estimated to become due in the
next Fiscal Year, as provided in Section 6.4 of this Lease. An Event of Nonappropriation may
also occur under certain circumstances described in Section 9.3(c) of this Lease. The term also
means a notice under this Lease of the Town’s intention to not renew and therefore terminate this
Lease or an event described in this Lease relating to the exercise by the Town of its right to not
appropriate amounts due as Additional Rentals in excess of the amounts for which an
Appropriation has been previously effected.
“Finance Director” means the Finance Director of the Town or his or her successor in
functions, if any.
“Fiscal Year” means the Town’s fiscal year, which begins on January 1 of each calendar
year and ends on December 31 of the same calendar year, or any other twelve month period
which the Town or other appropriate authority hereafter may establish as the Town’s fiscal year.
“Force Majeure” means, without limitation, the following: acts of God; strikes, lockouts
or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the
government of the United States of America, the State of Colorado or any of their departments,
agencies or officials or any civil or military authority; insurrection; riots; landslides; earthquakes;
fires; storms; droughts; floods; explosions; breakage or accidents to machinery, transmission
pipes or canals; or any other cause or event not within the control of the Town in its capacity as
lessee hereunder or the Trustee.
“Hazardous Substance” means and includes: (a) the terms “hazardous substance,”
“release” and “removal” which, as used herein, shall have the same meaning and definition as set
forth in paragraphs (14), (22) and (23), respectively, of Title 42 U.S.C. §9601 and in Colorado
law, provided, however, that the term “hazardous substance” as used herein shall also include
“hazardous waste” as defined in paragraph (5) of 42 U.S.C. §6903 and “petroleum” as defined in
paragraph (8) of 42 U.S.C. §6991; (b) the term “superfund” as used herein means the
Comprehensive Environmental Response, Compensation and Liability Act, as amended, being
Title 42 U.S.C. §9601 et seq., as amended, and any similar State of Colorado statute or local
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ordinance applicable to the Leased Property, including, without limitation, Colorado rules and
regulations promulgated, administered and enforced by any governmental agency or authority
pursuant thereto; and (c) the term “underground storage tank” as used herein shall have the same
meaning and definition as set forth in paragraph (1) of 42 U.S.C. §6991.
“Indenture” means the Indenture of Trust, dated as of April [__], 2020, entered into by
the Trustee, as the same may be amended or supplemented.
“Initial Purchaser” means [INITIAL PURCHASER], and its successors and assigns, as
the initial purchaser and Owner of the Certificates.
“Initial Term” means the period which commences on the date of delivery of this Lease
and terminates on December 31, 2020.
“Interest Portion” means the portion of each Base Rentals payment that represents the
payment of interest set forth in Exhibit C (Base Rentals Schedule) hereto.
“Lease” means this Lease Purchase Agreement, dated as of April [__], 2020, between the
Trustee, as lessor, and the Town, as lessee, as the same may hereafter be amended.
“Lease Balance” means the Total Aggregate Principal Portion of the Base Rentals under
this Lease set forth on Exhibit C (Base Rentals Schedule) hereto, less the aggregate amount of
Principal Portions of Base Rentals paid or prepaid by the Town pursuant to this Lease.
“Lease Remedy” or “Lease Remedies” means any or all remedial steps provided in this
Lease whenever an Event of Lease Default or an Event of Nonappropriation has happened and is
continuing, which may be exercised by the Trustee as provided in this Lease and in the
Indenture.
“Lease Term” means the Initial Term and any Renewal Terms as to which the Town may
exercise its option to renew this Lease by effecting an Appropriation of funds for the payment of
Base Rentals and Additional Rentals hereunder, as provided in and subject to the provisions of
this Lease. “Lease Term” refers to the time during which the Town is the lessee of the Leased
Property under this Lease.
“Leased Property” means the Site and the premises, buildings and improvements situated
thereon, including all fixtures attached thereto, as more particularly described in Exhibit A to the
Lease, together with any and all additions and modifications thereto and replacements thereof
permitted under Sections 8.2 and 10.4 of this Lease, including, without limitation, the easements,
rights of way, covenants and other rights set forth in the documents listed on Exhibit B attached
thereto, and any New Facility.
“Net Proceeds” means the proceeds of any performance or payment bond, or proceeds of
insurance, including self-insurance, required by this Lease or proceeds from any condemnation
award, or proceeds derived from the exercise of any Lease Remedy or otherwise following
termination of this Lease by reason of an Event of Nonappropriation or an Event of Lease
Default, allocable to the Leased Property, less (a) all related expenses (including, without
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limitation, attorney’s fees and costs) incurred in the collection of such proceeds or award; and (b)
all other related fees, expenses and payments due to the Town and the Trustee.
“New Facility” means any real property, buildings or equipment leased by the Town to
the Trustee pursuant to a future amendment to the Site Lease and leased back by the Town from
the Trustee pursuant to a future amendment to this Lease in connection with the execution and
delivery of Additional Certificates.
“Owners” means the registered owners of any Certificates.
“Permitted Encumbrances” with respect to the Leased Property, means, as of any
particular time: (a) liens for taxes and assessments not then delinquent, or liens which may
remain unpaid pending contest pursuant to the provisions of this Lease; (b) the Site Lease, this
Lease, the Indenture and any related fixture filing and any liens arising or granted pursuant to the
Site Lease, this Lease or the Indenture; (c) utility, access and other easements and rights of way,
licenses, permits, party wall and other agreements, restrictions and exceptions which the Town
Representative certifies will not materially interfere with or materially impair the Leased
Property, including rights or privileges in the nature of easements, licenses, permits and
agreements as provided in this Lease; (d) any sublease of the Leased Property that are permitted
pursuant to the terms and provisions of Section 12.2 hereof; and (e) the easements, covenants,
restrictions, liens and encumbrances (if any) to which title to the Leased Property was subject
when leased to the Trustee pursuant to the Site Lease, as shown on Exhibit B hereto and which
do not interfere in any material way with the Leased Property.
“Prepayment” means any amount paid by the Town pursuant to the provisions of this
Lease as a prepayment of the Base Rentals due hereunder.
“Principal Portion” means the portion of each Base Rentals payment that represents the
payment of principal set forth in Exhibit C (Base Rentals Schedule) hereto.
“Purchase Option Price” means the amount payable on any date, at the option of the
Town, to prepay Base Rentals, terminate the Lease Term and purchase the Trustee’s leasehold
interest in the Leased Property, as provided herein.
“Redemption Date” means the earliest date on which the 2010 Certificates may be called
for prior redemption.
“Refunding Project” means the exercise of the Town of its option to prepay the 2010
Lease and fully redeem, defease and discharge the 2010 Certificates on the Redemption Date.
“Renewal Term” means any portion of the Lease Term commencing on January 1 of any
calendar year and terminating on or before December 31 of such calendar year as provided in
Article 4 of this Lease.
“Revenues” means (a) all amounts payable by or on behalf of the Town or with respect to
the Leased Property pursuant to this Lease including, but not limited to, all Base Rentals,
Prepayments, the Purchase Option Price and Net Proceeds, but not including Additional Rentals;
(b) any portion of the proceeds of the Certificates deposited into the Base Rentals Fund created
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under the Indenture; (c) any moneys which may be derived from any insurance in respect of the
Certificates; and (d) any moneys and securities, including investment income, held by the
Trustee in the Funds and Accounts established under the Indenture (except for moneys and
securities held in the Rebate Fund or any defeasance escrow account).
“Site” means the real property owned by the Town and leased by the Town to the Trustee
under the Site Lease and subleased by the Trustee to the Town under this Lease, the legal
description of which is set forth in Exhibit A hereto, or an amendment or supplement hereto.
“Site Lease” means the Site Lease Agreement, dated as of April [__], 2020, between the
Town, as lessor, and the Trustee, as lessee, as the same may hereafter be amended.
“Special Counsel” means any counsel experienced in matters of municipal law and listed
in the list of municipal bond attorneys, as published semiannually by The Bond Buyer, or any
successor publication. So long as the Lease Term is in effect, the Town shall have the right to
select Special Counsel.
“Tax Certificate” means the Tax Compliance and No Arbitrage Certificate entered into
by the Town with respect to this Lease and the Certificates.
“Tax Code” means the Internal Revenue Code of 1986, as amended, and all regulations
and rulings promulgated thereunder.
“Taxable Rate” means [___]%.
“Tax-Exempt Rate” the rate to be borne by the Certificates after the Conversion Date,
such rate being [___]%.
“Town” means the Town of Avon, Colorado.
“Town Manager” means the Town Manager of the Town or his or her successor in
function.
“Town Representative” means the Mayor, the Town Manager or the Finance Director or
such other person at the time designated to act on behalf of the Town for the purpose of
performing any act under this Lease, the Site Lease or the Indenture by a written certificate
furnished to the Trustee containing the specimen signature of such person or persons and signed
on behalf of the Town by the Mayor.
“Trustee” means [TRUSTEE], acting in the capacity of trustee pursuant to the Indenture,
and any successor thereto appointed under the Indenture.
“2010 Certificates” means the Certificates of Participation, Series 2010 in the original
principal amount of $6,680,000, of which $4,300,000 is currently outstanding.
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ARTICLE 2
REPRESENTATIONS AND COVENANTS; RELATIONSHIP
OF TOWN AND TRUSTEE
Section 2.1 Representations and Covenants of the Town. The Town represents
and covenants to the Trustee, to the extent allowed by law and subject to renewal of this Lease
and Appropriation as set forth in Article 6 hereof, as follows:
(a) The Town is a home rule municipal corporation duly organized and
existing within the State under the Constitution and laws of the State and its Charter. The
Town is authorized to enter into this Lease, the Site Lease and the Escrow Agreement and
to carry out its obligations under this Lease, the Site Lease and the Escrow Agreement.
The Town has duly authorized and approved the execution and delivery of this Lease, the
Site Lease and all other documents related to the execution and delivery of this Lease, the
Site Lease and the Escrow Agreement.
(b) The Town owns the Leased Property and the Trustee has a leasehold
interest in the Leased Property pursuant to the Site Lease.
(c) The leasing of the Leased Property to the Trustee pursuant to the Site
Lease and the leasing or subleasing of the Leased Property from the Trustee, under the
terms and conditions provided for in this Lease, and the implementation of the Refunding
Project by the Town, are necessary, convenient and in furtherance of the Town’s
governmental purposes and are in the best interests of the citizens and inhabitants of the
Town. The Town will apply the net proceeds derived from the proceeds of the
Certificates to effectuate the Refunding Project.
(d) Neither the execution and delivery of this Lease, the Site Lease, and the
Escrow Agreement, nor the fulfillment of or compliance with the terms and conditions of
this Lease, the Site Lease and the Escrow Agreement, nor the consummation of the
transactions contemplated hereby or thereby, conflicts with or results in a breach of the
terms, conditions or provisions of any restriction or any agreement or instrument to which
the Town is now a party or by which the Town or its property is bound, or violates any
statute, regulation, rule, order of any court having jurisdiction, judgment or
administrative order applicable to the Town, or constitutes a default under any of the
foregoing, or results in the creation or imposition of any lien or encumbrance whatsoever
upon any of the property or assets of the Town, except for Permitted Encumbrances.
(e) The Town agrees that, except for non-renewal and nonappropriation as set
forth in Article 6 hereof, if the Town fails to perform any act which the Town is required
to perform under this Lease, the Trustee may, but shall not be obligated to, perform or
cause to be performed such act, and any reasonable expense incurred by the Trustee in
connection therewith shall be an obligation owing by the Town (from moneys for which
an Appropriation has been effected) to the Trustee shall be a part of Additional Rentals,
and the Trustee shall be subrogated to all of the rights of the party receiving such
payment.
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(f) There is no litigation or proceeding pending against the Town affecting
the right of the Town to execute this Lease or the Site Lease or the ability of the Town to
make the payments required hereunder or to otherwise comply with the obligations
contained herein, or which, if adversely determined, would, in the aggregate or in any
case, materially adversely affect the property, assets, financial condition or business of
the Town or materially impair the right or ability of the Town to carry on its operations
substantially as now conducted or anticipated to be conducted in the future.
(g) Except for customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, the Town shall not cause or permit any
Hazardous Substance to be brought upon, generated at, stored or kept or used in or about
the Leased Property without prior written notice to the Trustee, and all Hazardous
Substances, including, customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, will be used, kept and stored in a
manner that complies with all laws regulating any such Hazardous Substance so brought
upon or used or kept in or about the Leased Property. If the presence of any Hazardous
Substance on the Leased Property caused or permitted by the Town results in
contamination of the Leased Property, or if contamination of the Leased Property by any
Hazardous Substance otherwise occurs for which the Town is legally liable for damage
resulting therefrom, then the Town shall include as an Additional Rental any amount
necessary to reimburse the Trustee for legal expenses incurred to defend (to the extent
that an Appropriation for the necessary moneys has been effected by the Town) the
Trustee from claims for damages, penalties, fines, costs, liabilities or losses. The
reimbursement of the Trustee’s legal expenses is not an indemnification. It is expressly
understood that the Town is not indemnifying the Trustee and expenses of such defense
shall constitute Additional Rentals. Without limiting the foregoing, if the presence of any
Hazardous Substance on the Leased Property caused or permitted by the Town results in
any contamination of the Leased Property, the Town shall provide prior written notice to
the Trustee and promptly take all actions at its sole expense (which expenses shall
constitute Additional Rentals) as are necessary to effect remediation of the contamination
in accordance with legal requirements.
(h) The Town covenants and agrees to comply with any applicable covenants
and requirements of the Town set forth in the Tax Certificate.
Section 2.2 Representations and Covenants of the Trustee. The Trustee
represents and covenants as follows:
(a) The Trustee is a national banking association duly organized and existing
under the laws of the United States of America. The Trustee is authorized to enter into the Site
Lease, this Lease, the Escrow Agreement, and to execute and deliver the Indenture, and to carry
out its obligations hereunder and thereunder.
(b) So long as no Event of Indenture Default has occurred and is then
continuing or existing, except as specifically provided in the Site Lease or this Lease or as
necessary to transfer the Trust Estate to a successor Trustee, the Trustee shall not pledge or
assign the Trustee’s right, title and interest in and to (i) this Lease or the Site Lease, (ii) the Base
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Rentals, other Revenues and collateral, security interests and attendant rights and obligations
which may be derived under this Lease or the Site Lease and/or (iii) the Leased Property and any
reversion therein or any of its or the Trustee’s other rights under this Lease or the Site Lease or
assign, pledge, mortgage, encumber or grant a security interest in its or the Trustee’s right, title
and interest in, to and under this Lease or the Site Lease or the Leased Property except for
Permitted Encumbrances.
(c) Neither the execution and delivery of this Lease, the Site Lease, the
Escrow Agreement, or the Indenture by the Trustee, nor the fulfillment of or compliance with the
terms and conditions thereof and hereof, nor the consummation of the transactions contemplated
thereby or hereby conflicts with or results in a breach of the terms, conditions and provisions of
any restriction or any agreement or instrument to which the Trustee is now a party or by which
the Trustee is bound, or constitutes a default under any of the foregoing.
(d) To the Trustee’s knowledge, there is no litigation or proceeding pending
against the Trustee affecting the right of the Trustee to execute this Lease and the Site Lease or
to execute the Indenture, and perform its obligations thereunder or hereunder, except such
litigation or proceeding as has been disclosed in writing to the Town on or prior to the date the
Indenture is executed and delivered.
Section 2.3 Nature of Lease. The Town and the Trustee acknowledge and agree that
the Base Rentals and Additional Rentals hereunder shall constitute currently budgeted and
appropriated expenditures of the Town and may be paid from any legally available funds. The
Town’s obligations under this Lease shall be subject to the Town’s annual right to terminate this
Lease (as further provided herein), and shall not constitute a mandatory charge or requirement in
any ensuing Fiscal Year beyond the then current Fiscal Year. No provision of this Lease shall be
construed or interpreted as creating a general obligation, multiple fiscal year financial obligation,
or other indebtedness of the Town within the meaning of any constitutional, Charter or statutory
debt limitation. No provision of this Lease 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 Article XI, Sections 1 or 2 of the Colorado constitution. Neither
this Lease nor the execution and delivery of the Certificates shall directly or indirectly obligate
the Town to make any payments beyond those duly budgeted and appropriated for the Town’s
then current Fiscal Year. The Town shall be under no obligation whatsoever to exercise its
option to purchase the Trustee’s leasehold interest in the Leased Property. No provision of this
Lease shall be construed to pledge or to create a lien on any class or source of Town moneys, nor
shall any provision of this Lease restrict the future issuance of any Town bonds or obligations
payable from any class or source of Town moneys (provided, however, certain restrictions in the
Indenture shall apply to the issuance of Additional Certificates). In the event that this Lease is
not renewed by the Town, the sole security available to the Trustee, as lessor hereunder, shall be
the Leased Property.
Section 2.4 Town Acknowledgment of Certain Matters. The Town acknowledges
the Indenture and the execution and delivery by the Trustee of the Certificates pursuant to the
Indenture. The Town also acknowledges the Trustee’s authority to act on behalf of the Owners
of the Certificates with respect to all rights, title and interests of the Trustee in, to and under this
Lease, the Site Lease and the Leased Property. To the extent that the Town has duties,
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obligations and rights under the Indenture, the Town agrees to perform such duties and
obligations so long as this Lease is in effect, subject to appropriation and to the extent permitted
by law.
Section 2.5 Relationship of Town and Trustee. The relationship of the Town and
the Trustee under this Lease is, and shall at all times remain, solely that of lessee and lessor; and
the Town neither undertakes nor assumes any responsibility or duty to the Trustee or to any third
party with respect to the Trustee’s obligations relating to the Leased Property; and the Trustee
does not undertake or assume any responsibility or duty to the Town or to any third party with
respect to the Town’s obligations relating to the Leased Property. Notwithstanding any other
provisions of this Lease: (a) the Town and the Trustee are not, and do not intend to be construed
to be, partners, joint ventures, members, alter egos, managers, controlling persons or other
business associates or participants of any kind of either of the other, and the Town and the
Trustee do not intend to ever assume such status; and (b) the Town and the Trustee shall not be
deemed responsible for, or a participant in, any acts, omissions or decisions of either of the other.
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ARTICLE 3
LEASE OF THE LEASED PROPERTY
The Trustee demises and leases the Leased Property to the Town and the Town leases the
Leased Property from the Trustee, in accordance with the provisions of this Lease, subject only
to Permitted Encumbrances, to have and to hold for the Lease Term.
The Town and the Trustee acknowledge that the Town owns the Leased Property and the
Town has leased the Leased Property to the Trustee pursuant to the Site Lease; and the Town and
the Trustee intend that there be no merger of the Town’s interests as sublessee under this Lease
and the Town’s ownership interest in the Leased Property so as to cause the cancellation of the
Site Lease or this Lease, or an impairment of the leasehold and subleasehold interest intended to
be created by the Site Lease and this Lease.
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ARTICLE 4
LEASE TERM
Section 4.1 Duration of Lease Term. The Lease Term shall commence as of the
date hereof. The Initial Term shall terminate on December 31, 2020. This Lease may be
renewed, solely at the option of the Town, for the number of Renewal Terms represented in
Exhibit C (Base Rentals Schedule) attached hereto. The Town hereby finds that the maximum
Lease Term hereunder does not exceed the weighted average useful life of the Leased Property.
The Town further 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
Lease Term) does not exceed the useful life of the Leased Property.
The Finance Director or other officer of the Town at any time charged with the
responsibility of formulating budget proposals for the Town is hereby directed to include in the
annual budget proposals submitted to the Council, in any year in which this Lease shall be in
effect, items for all payments required for the ensuing Renewal Term under this Lease until such
time, if any, as the Town may determine to not renew and terminate this Lease. Notwithstanding
this directive regarding the formulation of budget proposals, it is the intention of the Town that
any decision to effect an Appropriation for the Base Rentals and Additional Rentals shall be
made solely by the Council in its absolute discretion and not by any other official of the Town,
as further provided in the following paragraph. During the Lease Term, the Town shall in any
event, whether or not the Lease is to be renewed, furnish the Trustee with copies of its annual
budget promptly after the budget is adopted.
Not later than December 15 of the then current Initial Term or any Renewal Term the
Town Representative shall give written notice (in substantially the form set forth in Exhibit D
attached hereto) to the Trustee and the Purchaser (for so long as the Purchaser is the Owner of
the Certificates) that either:
(a) the Town has effected or intends to effect on a timely basis an
Appropriation for the ensuing Fiscal Year which includes (1) sufficient amounts
authorized and directed to be used to pay all of the Base Rentals and (2) sufficient
amounts to pay such Additional Rentals as are estimated to become due, all as further
provided in Sections 6.2, 6.3 and 6.4 of this Lease, whereupon, this Lease shall be
renewed for the ensuing Fiscal Year; or
(b) the Town has determined, for any reason, not to renew this Lease for the
ensuing Fiscal Year.
Subject to the provisions of Section 6.4(a) hereof, the failure to give such notice shall not
constitute an Event of Lease Default, nor prevent the Town from electing not to renew this
Lease, nor result in any liability on the part of the Town. The Town’s option to renew or not to
renew this Lease shall be conclusively determined by whether or not the applicable
Appropriation has been made on or before December 31 of each Fiscal Year, all as further
provided in Article 6 of this Lease.
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The terms and conditions hereof during any Renewal Term shall be the same as the terms
and conditions hereof during the Initial Term, except that the Purchase Option Price and the Base
Rentals shall be as provided in Article 11 and Exhibit C (Base Rentals Schedule) hereof.
Section 4.2 Termination of Lease Term. The Lease Term shall terminate upon the
earliest of any of the following events:
(a) the expiration of the Initial Term or any Renewal Term during which there
occurs an Event of Nonappropriation pursuant to Section 4.1 and Article 6 of this Lease
(provided that the Lease Term will not be deemed to have been terminated if the Event of
Nonappropriation is cured as provided in Section 6.4 hereof);
(b) the occurrence of an Event of Nonappropriation under this Lease
(provided that the Lease Term will not be deemed to have been terminated if the Event of
Nonappropriation is cured as provided in Section 6.4 hereof);
(c) the conveyance of the Trustee’s leasehold interest in the Leased Property
under this Lease to the Town upon payment of the Purchase Option Price or all Base
Rentals and Additional Rentals, for which an Appropriation has been effected by the
Town for such purpose, as provided in Section 11.2(a) or (b) of this Lease; or
(d) an uncured Event of Lease Default and termination of this Lease under
Article 13 of this Lease by the Trustee.
Except for an event described in subparagraph (c) above, upon termination of this Lease, the
Town agrees to peacefully deliver possession of the Leased Property to the Trustee.
Termination of the Lease Term shall terminate all unaccrued obligations of the Town
under this Lease, and shall terminate the Town’s rights of possession under this Lease (except to
the extent of the holdover provisions of Sections 6.5 and 13.2(c)(i) hereof, and except for any
conveyance pursuant to Article 11 of this Lease). All obligations of the Town accrued prior to
such termination shall be continuing until the Trustee gives written notice to the Town that such
accrued obligations have been satisfied.
Upon termination of the Lease Term any moneys received by the Trustee in excess of the
amounts necessary to terminate and discharge the Indenture, shall be paid to the Town.
The Town shall not have the right to terminate this Lease due to a default by the Trustee
under this Lease.
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ARTICLE 5
ENJOYMENT OF THE LEASED PROPERTY
Section 5.1 Trustee’s Covenant of Quiet Enjoyment. The Trustee hereby
covenants that the Town shall, during the Lease Term, peaceably and quietly have, hold and
enjoy the Leased Property without suit, trouble or hindrance from the Trustee. The Trustee shall
not interfere with the quiet use and enjoyment of the Leased Property by the Town during the
Lease Term so long as no Event of Lease Default shall have occurred. The Trustee shall, at the
request of the Town and at the cost of the Town, cooperate fully in any legal action in which the
Town asserts against third parties its right to such possession and enjoyment, or which involves
the imposition of any taxes or other governmental charges on or in connection with the Leased
Property. In addition, the Town may at its own expense join in any legal action affecting its
possession and enjoyment of the Leased Property and shall be joined in any action affecting its
liabilities hereunder.
The provisions of this Article 5 shall be subject to the Trustee’s right to inspect the
Leased Property and the Town’s books and records with respect thereto as provided in Section
10.7 hereof.
Section 5.2 Town’s Need for the Leased Property; Determinations as to Fair
Value and Fair Purchase Price. The Town has determined and hereby determines that it has a
current need for the Leased Property. It is the present intention and expectation of the Town that
this Lease will be renewed annually until the Trustee’s leasehold interests in the Site Lease are
released and unencumbered title to the Leased Property is acquired by the Town pursuant to this
Lease; but this declaration shall not be construed as contractually obligating or otherwise binding
the Town. The Town has determined and hereby determines that the Base Rentals under this
Lease during the Lease Term for the Leased Property represent the fair value of the use of the
Leased Property and that the Purchase Option Price for the Leased Property will represent the
fair purchase price of the Trustee’s leasehold interest in the Leased Property at the time of the
exercise of the option. The Town has determined and hereby determines that the Base Rentals
do not exceed a reasonable amount so as to place the Town under an economic compulsion to
renew this Lease or to exercise its option to purchase the Trustee’s leasehold interest in the
Leased Property hereunder. In making such determinations, the Town has given consideration to
the estimated current value of the Leased Property, the uses and purposes for which the Leased
Property will be employed by the Town, the benefit to the citizens and inhabitants of the Town
by reason of the use and occupancy of the Leased Property pursuant to the terms and provisions
of this Lease, the Town’s option to purchase the Trustee’s leasehold interest in the Leased
Property and the expected eventual vesting of unencumbered title to the Leased Property in the
Town. The Town 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 Lease Term for the Leased Property) does not exceed the weighted average useful life
of the Leased Property.
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ARTICLE 6
PAYMENTS BY THE TOWN
Section 6.1 Payments to Constitute Currently Budgeted Expenditures of the
Town. The Town and the Trustee acknowledge and agree that the Base Rentals, Additional
Rentals and any other obligations hereunder shall constitute currently budgeted expenditures of
the Town, if an Appropriation has been effected for such purpose. The Town’s obligations to
pay Base Rentals, Additional Rentals and any other obligations under this Lease shall be from
year to year only (as further provided in Article 4 and Sections 6.2 and 6.4 hereof), shall extend
only to moneys for which an Appropriation has been effected by the Town, and shall not
constitute a mandatory charge, requirement or liability in any ensuing Fiscal Year beyond the
then current Fiscal Year. No provision of this Lease shall be construed or interpreted as a
delegation of governmental powers or as creating a multiple fiscal year direct or indirect debt or
other financial obligation whatsoever of the Town or a general obligation or other indebtedness
of the Town within the meaning of any constitutional, Charter provision or statutory debt
limitation, including without limitation Article X, Section 20 of the Colorado constitution. No
provision of this Lease 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 Constitution of the State. Neither this Lease nor
the Certificates shall directly or indirectly obligate the Town to make any payments beyond those
for which an Appropriation has been effected by the Town for the Town’s then current Fiscal
Year. The Town shall be under no obligation whatsoever to exercise its option to purchase the
Trustee’s leasehold interest in the Leased Property. No provision of this Lease shall be
construed to pledge or to create a lien on any class or source of Town moneys, nor shall any
provision of this Lease restrict the future issuance of any Town bonds or obligations payable
from any class or source of Town moneys (provided, however, that certain restrictions in the
Indenture shall apply to the issuance of Additional Certificates).
Section 6.2 Base Rentals, Purchase Option Price and Additional Rentals.
(a) The Town shall pay Base Rentals for which an Appropriation has been effected
by the Town, directly to the Trustee during the Initial Term and any Renewal Term, on the Base
Rentals Payment Dates and in the “Total Base Rentals” amounts set forth in Exhibit C (Base
Rentals Schedule) attached hereto and made a part hereof. For federal and State income tax
purposes, a portion of each payment of Base Rentals for the Certificates is designated and will be
paid as interest, and Exhibit C (Base Rentals Schedule) hereto sets forth the Interest Portion of
each payment of Base Rentals for the Certificates. The Town shall receive credit against its
obligation to pay Base Rentals to the extent moneys are held by the Trustee on deposit in the
Base Rentals Fund created under the Indenture and are available to pay Base Rentals. The Town
acknowledges that upon receipt by the Trustee of each payment of Base Rentals, the Trustee,
pursuant to the terms of the Indenture, is to deposit the amount of such Base Rentals in the Base
Rentals Fund.
The Base Rentals set forth in Exhibit C shall be recalculated in the event of the execution
and delivery of Additional Certificates as provided in the Indenture and shall also be recalculated
in the event of a partial redemption of the Certificates.
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(b) The Town may, on any date, pay the then applicable Purchase Option Price for
the purpose of terminating this Lease and the Site Lease in whole and purchasing the Trustee’s
leasehold interest in the Leased Property as further provided in Article 11 of this Lease. Subject
to the Approval of Special Counsel, the Town may also, at any time during the Lease Term, (1)
prepay any portion of the Base Rentals due under this Lease and (2) in connection with such
prepayment, recalculate the Base Rentals set forth in Exhibit C (Base Rentals Schedule). Any
such revised Exhibit C (Base Rentals Schedule) shall be prepared by the Town Representative
and delivered to the Trustee and the Initial Purchaser if the Initial Purchaser is at such time the
Owner of the Certificates. The Trustee may rely upon such revised Exhibit C (Base Rentals
Schedule) and has no duty to make an independent investigation in connection therewith. The
Town shall give the Trustee notice of its intention to exercise either of such options not less than
forty-five (45) days in advance of the date of exercise and shall deposit with the Trustee by not
later than the date of exercise an amount equal to the Purchase Option Price due on the date of
exercise or the applicable amount of Base Rentals to be prepaid. If the Town shall have given
notice to the Trustee of its intention to prepay Base Rentals but shall not have deposited the
amounts with the Trustee on the date specified in such notice, the Town shall continue to pay
Base Rentals which have been specifically appropriated by the Council for such purpose as if no
such notice had been given. The Trustee may waive the right to receive forty-five (45) days
advance notice and may agree to a shorter notice period in the sole determination of the Trustee.
(c) All Additional Rentals shall be paid by the Town on a timely basis directly to the
person or entity to which such Additional Rentals are owed. Additional Rentals shall include,
without limitation, the reasonable fees and expenses of the Trustee, reasonable expenses of the
Trustee in connection with the Leased Property and for the cost of taxes, insurance premiums,
utility charges, maintenance and repair costs and all other expenses expressly required to be paid
hereunder, including any Rebate Fund payments required pursuant to this Lease and the
Indenture. All of the payments required by this paragraph are subject to Appropriation by the
Town; provided, however, a failure by the Town to budget and appropriate moneys for any of the
payments required by this paragraph shall constitute an Event of Nonappropriation.
If the Town’s estimates of Additional Rentals for any Fiscal Year are not itemized in the
budget required to be furnished to the Trustee under Section 4.1 of this Lease, the Town shall
furnish an itemization of such estimated Additional Rentals to the Trustee on or before the 15th
day preceding such Fiscal Year.
Section 6.3 Manner of Payment. The Base Rentals, for which an Appropriation has
been effected by the Town, and, if paid, the Purchase Option Price, shall be paid or prepaid by
the Town to the Trustee at its corporate trust office by wire transfer of federal funds, certified
funds or other method of payment acceptable to the Trustee in lawful money of the United States
of America to the Trustee at its corporate trust office.
The obligation of the Town to pay the Base Rentals and Additional Rentals as required
under this Article 6 and other sections hereof in any Fiscal Year for which an Appropriation has
been effected by the Town for the payment thereof shall be absolute and unconditional and
payment of the Base Rentals and Additional Rentals in such Fiscal Years shall not be abated
through accident or unforeseen circumstances, or any default by the Trustee under this Lease, or
under any other agreement between the Town and the Trustee, or for any other reason including
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without limitation, any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Leased Property, commercial frustration of purpose, or failure of
the Trustee, to perform and observe any agreement, whether expressed or implied, or any duty,
liability or obligation arising out of or connected with this Lease, it being the intention of the
parties that the payments required by this Lease will be paid in full when due without any delay
or diminution whatsoever, subject only to the annually renewable nature of the Town’s
obligation hereunder as set forth in Section 6.1 hereof, and further subject to the Town’s rights
under Section 8.3 hereof. Notwithstanding any dispute between the Town and the Trustee, the
Town shall, during the Lease Term, make all payments of Base Rentals and Additional Rentals
in such Fiscal Years and shall not withhold any Base Rentals or Additional Rentals, for which an
Appropriation has been effected by the Town, pending final resolution of such dispute (except to
the extent permitted by Sections 7.2 and 8.3 hereof with respect to certain Additional Rentals),
nor shall the Town assert any right of set-off or counterclaim against its obligation to make such
payments required hereunder. No action or inaction on the part of the Trustee shall affect the
Town’s obligation to pay all Base Rentals and Additional Rentals, for which a specific
Appropriation has been effected by the Town for such purpose, in such Fiscal Years subject to
this Article (except to the extent provided by Sections 7.2 and 8.3 hereof with respect to certain
Additional Rentals).
Section 6.4 Nonappropriation. In the event that the Town gives notice that it
intends to not renew this Lease as provided by Section 4.1 hereof or the Town shall not effect an
Appropriation, on or before December 31 of each Fiscal Year, of moneys to pay all Base Rentals
and reasonably estimated Additional Rentals coming due for the next ensuing Renewal Term as
provided in Section 4.1 hereof and this Article, or in the event that the Town is proceeding under
the provisions of Section 9.3(c) hereof (when applicable), an Event of Nonappropriation shall be
deemed to have occurred; subject, however, to each of the following provisions:
(a) In the event the Trustee does not receive the written notice provided for by
Section 4.1 hereof or evidence that an Appropriation has been effected by the Town on or
before December 31 of a Fiscal Year, then the Trustee shall declare an Event of
Nonappropriation on the first Business Day of the February following such Fiscal Year or
such declaration shall be made on any earlier date on which the Trustee receives official,
specific written notice from the Town that this Lease will not be renewed. In order to
declare an Event of Nonappropriation, the Trustee shall send written notice thereof to the
Town.
(b) The Trustee shall waive any Event of Nonappropriation which is cured by
the Town, within 30 days of the receipt by the Town of notice from the Trustee as
provided in (a) above, by a duly effected Appropriation to pay all Base Rentals and
sufficient amounts to pay reasonably estimated Additional Rentals coming due for such
Renewal Term.
(c) Pursuant to the terms of the Indenture, the Trustee may waive any Event
of Nonappropriation which is cured by the Town within a reasonable time with the
procedure described in (b) above.
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In the event that during the Initial Term or any Renewal Term, any Additional Rentals
shall become due which were not included in a duly effected Appropriation and moneys are not
specifically budgeted and appropriated or otherwise made available to pay such Additional
Rentals within 60 days subsequent to the date upon which such Additional Rentals are due, an
Event of Nonappropriation shall be deemed to have occurred, upon notice by the Trustee to the
Town to such effect (subject to waiver by the Trustee as hereinbefore provided).
If an Event of Nonappropriation occurs, the Town shall not be obligated to make
payment of the Base Rentals or Additional Rentals or any other payments provided for herein
which accrue after the last day of the Initial Term or any Renewal Term during which such Event
of Nonappropriation occurs; provided, however, that, subject to the limitations of Sections 6.1
and 13.3 hereof, the Town shall continue to be liable for Base Rentals and Additional Rentals
allocable to any period during which the Town shall continue to occupy, use or retain possession
of the Leased Property.
Subject to Section 6.5 hereof, the Town shall in all events vacate or surrender possession
of the Leased Property by March 1 of the Renewal Term in respect of which an Event of
Nonappropriation has occurred.
After March 1 of the Renewal Term in respect of which an Event of Nonappropriation
has occurred, the Trustee may proceed to exercise all or any Lease Remedies.
The Town acknowledges that, upon the occurrence of an Event of Nonappropriation
(a) the Trustee shall be entitled to all moneys then being held in all funds created under the
Indenture (except the Rebate Fund, the Escrow Account and any other defeasance escrow
accounts) to be used as described therein and (b) all property, funds and rights then held or
acquired by the Trustee upon the termination of this Lease by reason of an Event of
Nonappropriation are to be held by the Trustee in accordance with the terms of the Indenture.
Section 6.5 Holdover Tenant. If the Town fails to vacate the Leased Property after
termination of this Lease, whether as a result of the occurrence of an Event of Nonappropriation
or an Event of Lease Default as provided in Section 13.2(a) hereof, with the written permission
of the Trustee it will be deemed to be a holdover tenant on a month-to-month basis, and will be
bound by all of the other terms, covenants and agreements of this Lease. Any holding over by
the Town without the written permission of the Trustee shall be at sufferance. The amount of
rent to be paid monthly during any period when the Town is deemed to be a holdover tenant will
be equal to (a) one-sixth of the Interest Portion of the Base Rentals coming due on the next
succeeding Base Rentals Payment Date plus one-twelfth of the Principal Portion of the Base
Rentals coming due on the next succeeding Base Rentals Payment Date on which a Principal
Portion of the Base Rentals would have been payable with appropriate adjustments to ensure the
full payment of such amounts on the due dates thereof in the event termination occurs during a
Renewal Term plus (b) Additional Rentals as the same shall become due.
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Section 6.6 Prohibition of Adverse Budget or Appropriation
Modifications. To the extent permitted by law, the Town shall not, during any Fiscal Year of
the Lease Term, make any budgetary transfers or other modifications to its then existing budget
and appropriation measures relating to the Leased Property or this Lease which would adversely
affect the Town’s ability to meet its obligation to pay Base Rentals and duly budgeted and
appropriated Additional Rentals hereunder.
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ARTICLE 7
TITLE TO LEASED PROPERTY;
LIMITATIONS ON ENCUMBRANCES
Section 7.1 Title to the Leased Property; Title Insurance. Title to the Leased
Property shall remain in the Town, subject to the Site Lease, this Lease, the Indenture and any
other Permitted Encumbrances. Except personal property purchased by the Town at its own
expense pursuant to Section 8.2 hereof, title to the Trustee’s leasehold interest in the Leased
Property and any and all additions and modifications thereto and replacements thereof shall be
held in the name of the Trustee, subject to this Lease, the Site Lease and the Indenture, until
liquidated, conveyed or otherwise disposed of as provided in Section 7.02 of the Indenture or
Article 11 hereof, or until termination of the Site Lease, notwithstanding (i) a termination hereof
by the Town by reason of an Event of Nonappropriation as provided in Section 6.4 hereof; (ii)
the occurrence of one or more Lease Events of Default as defined in Section 13.1 hereof; (iii) the
occurrence of any event of damage, destruction, condemnation, or construction defect, breach of
warranty or title defect, as provided in Article 9 hereof; or (iv) the violation by the Trustee of any
provision hereof.
Concurrently with the execution and delivery of this Lease, the Trustee shall be
provided with one or more commitments for one or more standard Leasehold Owner’s title
insurance policies issued to the Trustee, insuring the Trustee’s leasehold interest in the Leased
Property, subject only to Permitted Encumbrances, in an aggregate amount not less than the
aggregate principal amount of the Certificates or such lesser amount as shall be the maximum
insurable value of the Leased Property.
The Town shall have no right, title or interest in the Leased Property or any
additions and modifications thereto or replacements thereof, except as expressly set forth in this
Lease. The Trustee shall not, in any way, be construed as the owner of the Leased Property.
Section 7.2 No Encumbrance, Mortgage or Pledge of the Leased Property.
Except as may be permitted by this Lease, the Town shall not permit any mechanic’s or other
lien to be established or remain against the Leased Property; provided that, if the Town shall first
notify the Trustee of the intention of the Town to do so, the Town may in good faith contest any
mechanic’s or other lien filed or established against the Leased Property, and in such event may
permit the items so contested to remain undischarged and unsatisfied during the period of such
contest and any appeal therefrom unless the Trustee shall notify the Town that, in the opinion of
Counsel, by nonpayment of any such items the Trustee’s leasehold interest in the Leased
Property will be materially endangered, or the Leased Property or any part thereof will be subject
to loss or forfeiture, in which event the Town shall promptly pay and cause to be satisfied and
discharged all such unpaid items (provided, however, that such payment shall not constitute a
waiver of the right to continue to contest such items). The Trustee will cooperate in any such
contest. Except as may be permitted by this Lease, the Town shall not directly or indirectly
create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim
on or with respect to the Leased Property, except Permitted Encumbrances. The Town shall
promptly, at its expense, take such action as may be necessary to duly discharge any such
mortgage, pledge, lien, charge, encumbrance or claim not excepted above.
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ARTICLE 8
MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES
Section 8.1 Maintenance of the Leased Property by the Town. Subject to its right
to not appropriate and as otherwise provided in Section 9.3 hereof, the Town agrees that at all
times during the Lease Term, the Town will maintain, preserve and keep the Leased Property or
cause the Leased Property to be maintained, preserved and kept, in good repair, working order
and condition, and from time to time make or cause to be made all necessary and proper repairs,
including replacements, if necessary. The Trustee shall have no responsibility in any of these
matters or for the making of any additions, modifications or replacements to the Leased Property.
Section 8.2 Modification of the Leased Property; Installation of Furnishings and
Machinery of the Town. The Town shall have the privilege of making replacements,
substitutions, additions, modifications and improvements to the Leased Property, at its own cost
and expense, as appropriate and any such replacements, substitutions, additions, modifications
and improvements to the Leased Property shall be the property of the Town, subject to the Site
Lease, this Lease and the Indenture and shall be included under the terms of the Site Lease, this
Lease and the Indenture; provided, however, that such replacements, substitutions, additions,
modifications and improvements shall not in any way damage the Leased Property or cause the
Leased Property to be used for purposes other than lawful governmental functions of the Town
(except to the extent of subleasing permitted under Section 12.2 hereof) or cause the Town to
violate its tax covenant in Section 10.5 hereof; and provided that the Leased Property, as
improved or altered, upon completion of such replacements, substitutions, additions,
modifications and improvements, shall be of a value not less than the value of the Leased
Property immediately prior to such making of replacements, substitutions, additions,
modifications and improvements.
The Town may also, from time to time in its sole discretion and at its own expense,
install machinery, equipment and other tangible property in or on the Leased Property. All such
machinery, equipment and other tangible property shall remain the sole property of the Town in
which the Trustee shall have no interests; provided, however, that title to any such machinery,
equipment and other tangible property which becomes permanently affixed to the Leased
Property shall be included under the terms of the Site Lease, this Lease and the Indenture, that
such Leased Property would be damaged or impaired by the removal of such machinery,
equipment or other tangible property.
The Town shall have the right to make substitutions to the Leased Property upon
compliance with the provisions set forth in Section 10.4 hereof.
Section 8.3 Taxes, Other Governmental Charges and Utility Charges. In the
event that the Leased Property shall, for any reason, be deemed subject to taxation, assessments
or charges lawfully made by any governmental body, the Town shall pay the amount of all such
taxes, assessments and governmental charges then due, as Additional Rentals. With respect to
special assessments or other governmental charges which may be lawfully paid in installments
over a period of years, the Town shall be obligated to provide for Additional Rentals only for
such installments as are required to be paid during the upcoming Fiscal Year. Except for
Permitted Encumbrances, the Town shall not allow any liens for taxes, assessments or
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governmental charges to exist with respect to the Leased Property (including, without limitation,
any taxes levied upon the Leased Property which, if not paid, will become a charge on the rentals
and receipts from the Leased Property, or any interest therein, including the leasehold interests of
the Trustee), or the rentals and revenues derived therefrom or hereunder. The Town shall also
pay as Additional Rentals, as the same respectively become due, all utility and other charges and
fees and other expenses incurred in the operation, maintenance and upkeep of the Leased
Property.
The Town may, at its expense, in good faith contest any such taxes, assessments, utility
and other charges and, in the event of any such contest, may permit the taxes, assessments, utility
or other charges so contested to remain unpaid during the period of such contest and any appeal
therefrom unless the Trustee shall notify the Town that, in the opinion of Counsel, by
nonpayment of any such items the value of the Leased Property will be materially endangered or
the Leased Property will be subject to loss or forfeiture, or the Trustee will be subject to liability,
in which event such taxes, assessments, utility or other charges shall be paid forthwith (provided,
however, that such payment shall not constitute a waiver of the right to continue to contest such
taxes, assessments, utility or other charges).
Section 8.4 Provisions For Liability and Property Insurance. Upon the execution
and delivery of this Lease, the Town shall, at its own expense, cause casualty and property
insurance to be carried and maintained with respect to the Leased Property in an amount equal to
the estimated replacement cost of the Leased Property. Such insurance policy or policies may
have a deductible clause in an amount deemed reasonable by the Council. The Town may, in its
discretion, insure the Leased Property under blanket insurance policies which insure not only the
Leased Property, but other buildings as well, as long as such blanket insurance policies comply
with the requirements hereof. If the Town shall insure against similar risks by self-insurance, the
Town may, at its election provide for casualty and property damage insurance with respect to the
Leased Property, partially or wholly by means of a self-insurance fund. If the Town shall elect
to self-insure, the Town Representative shall annually furnish to the Trustee a certification of the
adequacy of the Town’s reserves. The Trustee shall be named additional insured and loss payee
on any casualty and property insurance.
Upon the execution and delivery of this Lease, the Town shall, at its own expense, cause
public liability insurance to be carried and maintained with respect to the activities to be
undertaken by and on behalf of the Town in connection with the use of the Leased Property, in
an amount not less than the limitations provided in the Colorado Governmental Immunity Act
(Article 10, Title 24, Colorado Revised Statutes, as heretofore or hereafter amended). Such
insurance may contain deductibles and exclusions deemed reasonable by the Council. The
public liability insurance required by this Section may be by blanket insurance policy or policies.
If the Town shall insure against similar risks by self-insurance, the Town, at its election may
provide for public liability insurance with respect to the Leased Property, partially or wholly by
means of a self-insurance fund. If the Town shall elect to self-insure, the Town Representative
shall annually furnish to the Trustee a certification of the adequacy of the Town’s reserves. The
Trustee shall be named as additional insured and loss payee on any public liability insurance.
Any property damage insurance policy required by this Section shall be so written or
endorsed as to make payments under such insurance policy with a value equal to or less than the
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then current deductible payable to the Town. Property damage payments under such insurance
policy in excess of the then current deductible will designate the Trustee as loss payee. All
certificates evidencing such policies shall be deposited with the Trustee. No agent or employee
of the Town shall have the power to adjust or settle any loss with respect to the Leased Property
in excess of the deductible amount, whether or not covered by insurance, without the prior
written consent of the Trustee.
Upon the initial execution and delivery of this Lease, the Town shall provide certificates
of insurance or other appropriate evidence of self-insurance, with appropriate endorsements
attached demonstrating that the Trustee has been named as an additional insured on liability
coverage, or loss payee on property coverage. A certificate of insurance from the Town or the
Town’s insurance agent will be acceptable evidence of insurance. Certificates evidencing all
insurance policies issued pursuant to this Section shall be deposited with the Trustee.
Section 8.5 Advances. If the Town fails to pay any Additional Rentals during the
Lease Term as such Additional Rentals become due, the Trustee may (but shall not be obligated
to) pay such Additional Rentals and the Town agrees to reimburse the Trustee to the extent
permitted by law and subject to Appropriation as provided under Article 6 hereof.
Section 8.6 Granting of Easements. As long as no Event of Nonappropriation or
Event of Lease Default shall have happened and be continuing, the Trustee, shall upon the
request of the Town, (a) grant or enter into easements, permits, licenses, party wall and other
agreements, rights-of-way (including the dedication of public roads) and other rights or
privileges in the nature of easements, permits, licenses, party wall and other agreements and
rights of way with respect to any property or rights included in this Lease (whether such rights
are in the nature of surface rights, sub-surface rights or air space rights), free from this Lease and
any security interest or other encumbrance created hereunder or thereunder; (b) release existing
easements, permits, licenses, party wall and other agreements, rights-of-way, and other rights
and privileges with respect to such property or rights, with or without consideration; and (c)
execute and deliver any instrument necessary or appropriate to grant, enter into or release any
such easement, permit, license, party wall or other agreement, right-of-way or other grant or
privilege upon receipt of: (i) a copy of the instrument of grant, agreement or release and (ii) a
written application signed by the Town Representative requesting such grant, agreement or
release and stating that such grant, agreement or release will not materially impair the effective
use or materially interfere with the operation of the Leased Property, and will not materially
adversely affect the security intended to be given by or under the Indenture, the Site Lease or this
Lease.
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ARTICLE 9
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE OF NET PROCEEDS
Section 9.1 Damage, Destruction and Condemnation. If, during the Lease Term,
(a) the Leased Property shall be destroyed (in whole or in part), or damaged
by fire or other casualty; or
(b) title to, or the temporary or permanent use of, the Leased Property or the
estate of the Town or the Trustee in the Leased Property is taken under the exercise of the
power of eminent domain by any governmental body or by any person, firm or entity
acting under governmental authority; or
(c) a breach of warranty or a material defect in the construction, manufacture
or design of the Leased Property becomes apparent; or
(d) title to or the use of all or a portion of the Leased Property is lost by
reason of a defect in title thereto.
then the Town shall be obligated to continue to pay Base Rentals and Additional Rentals (subject
to Article 6 hereof).
Section 9.2 Obligation to Repair and Replace the Leased Property. The Town
and the Trustee, to the extent Net Proceeds are within their respective control, shall cause such
Net Proceeds of any insurance policies, performance bonds or condemnation awards, to be
deposited in a separate trust fund. All Net Proceeds so deposited shall be applied to the prompt
repair, restoration, modification, improvement or replacement of the Leased Property by the
Town, upon receipt of requisitions by the Trustee, signed by the Town Representative stating
with respect to each payment to be made:
(a) the requisition number;
(b) the name and address of the person, firm or entity to whom payment is
due;
(c) the amount to be paid; and
(d) that each obligation mentioned therein has been properly incurred, is a
proper charge against the separate trust fund and has not been the basis of any previous
withdrawal and specifying in reasonable detail the nature of the obligation, accompanied
by a bill or a statement of account for such obligation.
The Trustee shall have no duty to review or examine the accompanying bill, invoice or
statement of account, but may conclusively rely on the properly executed disbursement request.
The Town and the Trustee shall agree to cooperate and use their best reasonable efforts subject to
the terms of the Indenture to enforce claims which may arise in connection with material defects
in the construction, manufacture or design of the Leased Property or otherwise. If there is a
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balance of any Net Proceeds allocable to the Leased Property remaining after such repair,
restoration, modification, improvement or replacement has been completed, this balance shall be
used by the Town, to:
(a) add to, modify or alter the Leased Property or add new components
thereto, or
(b) prepay the Base Rentals with a corresponding adjustment in the amount of
Base Rentals payable under Exhibit C (Base Rentals Schedule) to this Lease or
(c) accomplish a combination of (a) and (b).
Any repair, restoration, modification, improvement or replacement of the Leased
Property paid for in whole or in part out of Net Proceeds allocable to the Leased Property shall
be the property of the Town, subject to the Site Lease, this Lease and the Indenture and shall be
included as part of the Leased Property under this Lease.
Section 9.3 Insufficiency of Net Proceeds. If the Net Proceeds (plus any amounts
withheld from such Net Proceeds by reason of any deductible clause) are insufficient to pay in
full the cost of any repair, restoration, modification, improvement or replacement of the Leased
Property required under Section 9.2 of this Lease, the Town may elect to:
(a) complete the work or replace such Leased Property (or portion thereof)
with similar property of a value equal to or in excess of such portion of the Leased
Property and pay as Additional Rentals, to the extent amounts for Additional Rentals
which have been specifically appropriated by the Town are available for payment of such
cost, any cost in excess of the amount of the Net Proceeds allocable to the Leased
Property, and the Town agrees that, if by reason of any such insufficiency of the Net
Proceeds allocable to the Leased Property, the Town shall make any payments pursuant
to the provisions of this paragraph, the Town shall not be entitled to any reimbursement
therefor from the Trustee, nor shall the Town be entitled to any diminution of the Base
Rentals and Additional Rentals, for which a specific Appropriation has been effected by
the Town for such purpose, payable under Article 6 of this Lease; or
(b) apply the Net Proceeds allocable to the Leased Property to the payment of
the Purchase Option Price in accordance with Article 11 of this Lease, or an appropriate
portion thereof. In the event of an insufficiency of the Net Proceeds for such purpose, the
Town shall, subject to the limitations of Section 6.1 hereof, pay such amounts as may be
necessary to equal that portion of the Purchase Option Price which is attributable to the
Leased Property for which Net Proceeds have been received (as certified to the Trustee
by the Town); and in the event the Net Proceeds shall exceed such portion of the
Purchase Option Price, such excess shall be used as directed by the Town in the same
manner as set forth in Section 9.2 hereof; or
(c) if the Town does not timely budget and appropriate sufficient funds to
proceed under either (a) or (b) above, an Event of Nonappropriation will be deemed to
have occurred and, subject to the Town’s right to cure, the Trustee may pursue remedies
available to it following an Event of Nonappropriation.
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The above referenced election shall be made by the Town within 90 days of the
occurrence of an event specified in Section 9.1 of this Lease. It is hereby declared to be the
Town’s present intention that, if an event described in Section 9.1 hereof should occur and if the
Net Proceeds shall be insufficient to pay in full the cost of repair, restoration, modification,
improvement or replacement of the Leased Property, the Town would use its best efforts to
proceed under either paragraph (a) or paragraph (b) above; but it is also acknowledged that the
Town must operate within budgetary and other economic constraints applicable to it at the time,
which cannot be predicted with certainty; and accordingly the foregoing declaration shall not be
construed to contractually obligate or otherwise bind the Town.
Section 9.4 Cooperation of the Trustee. The Trustee shall cooperate fully with the
Town in filing any proof of loss with respect to any insurance policy or performance bond
covering the events described in Section 9.1 of this Lease and in the prosecution or defense of
any prospective or pending condemnation proceeding with respect to the Leased Property and
the enforcement of all warranties relating to the Leased Property. So long as no Event of Lease
Default or Event of Nonappropriation has occurred and is then existing, the Trustee shall not
voluntarily settle, or consent to the settlement of, any proceeding arising out of any insurance
claim performance or payment bond claim, prospective or pending condemnation proceeding
with respect to the Leased Property without the written consent of the Town.
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ARTICLE 10
DISCLAIMER OF WARRANTIES; OTHER COVENANTS
Section 10.1 Disclaimer of Warranties. THE TRUSTEE HAS NOT MADE AND
WILL NOT MAKE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR
IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR FITNESS FOR USE OF THE LEASED
PROPERTY OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO
THE LEASED PROPERTY. THE TOWN HEREBY ACKNOWLEDGES AND DECLARES
THAT THE TOWN IS SOLELY RESPONSIBLE FOR THE OPERATION OF THE LEASED
PROPERTY, AND THAT THE TRUSTEE HAS NO RESPONSIBILITY THEREFOR. For the
purpose of enabling the Town to discharge such responsibility, the Trustee constitutes and
appoints the Town as its attorney in fact for the purpose of asserting and enforcing, at the sole
cost and expense of the Town, all manufacturer’s warranties and guaranties, express or implied,
with respect to the Leased Property, as well as any claims or rights the Trustee may have in
respect of the Leased Property against any manufacturer, supplier, contractor or other person.
Except as otherwise provided in this Lease, the Trustee shall not be liable for any direct or
indirect, incidental, special, punitive or consequential damage in connection with or arising out
of this Lease or the existence, furnishing, functioning or use by the Town of any item, product or
service provided for herein except that nothing shall relieve the Trustee’s liability for any claims,
damages, liability or court awards, including costs, expenses and attorney fees, relating to or
arising from the Trustee’s actions or omissions that result from the negligence, bad faith or
intentional misconduct of the Trustee or its employees.
Section 10.2 Further Assurances and Corrective Instruments. The Trustee and the
Town agree that they will, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such amendments hereof or supplements hereto and such
further instruments as may reasonably be required for correcting any inadequate or incorrect
description of the Leased Property.
Section 10.3 Compliance with Requirements. During the Lease Term, the Town
and the Trustee shall observe and comply promptly to the extent possible with all current and
future orders of all courts having jurisdiction over the Leased Property, provided that the Town
and the Trustee may contest or appeal such orders so long as they are in compliance with such
orders during the contest or appeal period, and all current and future requirements of all
insurance companies writing policies covering the Leased Property.
Section 10.4 Release and Substitution of Leased Property. So long as no Lease
Event of Default or Event of Nonappropriation shall have occurred and is continuing the Trustee
shall release any portion of the Leased Property, and shall execute all documents necessary or
appropriate to convey or reconvey the same to the Town, free of all restrictions and
encumbrances imposed or created by the Site Lease, this Lease or the Indenture, upon receipt by
the Trustee of the following: (a) a written request of the Town Representative for such release,
describing the portion of the Leased Property to be released; (b) a certificate of the Town
Representative certifying (i) that the disposition of the portion of the Leased Property to be
released and the substitution therefor of the real property to be substituted for the portion of the
Leased Property to be released (if any) will not materially adversely affect the ability of the
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Town to operate the Leased Property or to fulfill its obligations under this Lease, (ii) that any
real property to be substituted for the portion of the Leased Property to be released will be useful
in the operation of the Leased Property, and (iii) that the fair value of any real property to be
substituted for the portion of the Leased Property to be released, as determined by the Council in
a duly adopted resolution, together with remaining Leased Property and cash to be paid by the
Town to the Trustee, if any, is at least equal to the aggregate principal amount of the Certificates
then Outstanding; (c) a certified copy of the resolution referred to in clauses (b)(iii); and
(d) supplements and amendments to this Lease, the Indenture and any other documents necessary
to subject to the lien of the Indenture any real property to be substituted for the portion of the
Leased Property to be released. The Town agrees that any cash paid to the Trustee pursuant to
the provisions of this Section shall be deposited into the Principal Account or the Interest
Account of the Base Rentals Fund, or both such accounts, as directed by the Town.
Section 10.5 Tax Covenants. The Town acknowledges that the moneys in all funds
and accounts expected to be created under the Indenture are to be invested or deposited by the
Trustee, at the written direction of the Town.
The Town covenants for the benefit of the Owners of the Certificates, on and after the
Conversion Date, that it will not take any action or omit to take any action with respect to the
Certificates, the proceeds thereof, any other funds of the Town or any facilities financed or
refinanced with the proceeds of the Certificates (except for the possible exercise of the Town’s
right to terminate this Lease as provided herein) if such action or omission (i) would cause the
interest on the Certificates to lose its exclusion from gross income for federal income tax
purposes under Section 103 of the Tax Code, or (ii) would cause interest on the Certificates to
lose its exclusion from alternative minimum taxable income as defined in Section 55(b)(2) of the
Tax Code, or (iii) would cause interest on the Certificates to lose its exclusion from Colorado
taxable income or to lose its exclusion from Colorado alternative minimum taxable income under
present Colorado law. Subject to the Town’s right to terminate this Lease as provided herein, the
foregoing covenant shall remain in full force and effect, notwithstanding the payment in full or
defeasance of the Certificates, until the date on which all obligations of the Town in fulfilling the
above covenant under the Tax Code and Colorado law have been met.
In addition, the Town covenants that its direction of investments pursuant to Article 5 of
the Indenture shall be in compliance with the procedures established by the Tax Certificate to the
extent required to comply with its covenants contained in the foregoing provisions of this
Section. The Town hereby agrees that, to the extent necessary, it will, during the Lease Term,
pay to the Trustee such sums as are required for the Trustee to pay the amounts due and owing to
the United States Treasury as rebate payments. Any such payment shall be accompanied by
directions to the Trustee to pay such amounts to the United States Treasury. Any payment of
Town moneys pursuant to the foregoing sentence shall be Additional Rentals for all purposes of
this Lease.
The Town is to execute the Tax Certificate in connection with the execution and delivery
of this Lease, which Tax Certificate shall provide further details in respect of the Town’s tax
covenants herein.
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On and after the Conversion Date, for the purpose of Section 265(b)(3)(B) of the Code,
the Town hereby designates the Certificates as qualified tax-exempt obligations.
Section 10.6 Covenant to Reimburse Legal Expenses. To the extent permitted by
law, the Town shall defend and hold harmless the Trustee against claims arising from the alleged
negligent acts or omissions of the Town’s public employees, which occurred or are alleged to
have occurred during the performance of their duties and within the scope of their employment,
unless such acts or omissions are, or are alleged to be, willful and wanton. Such claims shall be
subject to the limitations of the Colorado Governmental Immunity Act, C.R.S. 24-10-101 to 24-
10-120. The Town shall include as Additional Rentals, the reimbursement of reasonable and
necessary expenses incurred by the Trustee to defend the Trustee from and against all claims, by
or on behalf of any person, firm, corporation or other legal entity arising from the conduct or
management of the Leased Property or from any work or thing done on the Leased Property
during the Lease Term requested by the Town, or from any condition of the Leased Property
caused by the Town. This duty to reimburse the Trustee’s legal expenses is not an
indemnification and it is expressly understood that the Town is not indemnifying the Trustee
and, as previously stated, is limited to Net Proceeds and moneys, if any, in excess of such Net
Proceeds, for which an Appropriation has been effected.
Section 10.7 Access to the Leased Property; Rights to Inspect Books. The Town
agrees that the Trustee shall have the right at all reasonable times to examine and inspect the
Leased Property (subject to such regulations as may be imposed by the Town for security
purposes) and all of the Town’s books and records with respect thereto, but the Trustee has no
duty to inspect the Leased Property books or records. The Town further agrees that the Trustee
shall have such rights of access to the Leased Property as may be reasonably necessary to cause
the proper maintenance of the Leased Property in the event of failure by the Town to perform its
obligations under this Lease. The Indenture allows the Town to have the right at all reasonable
times to examine and inspect all of the Trustee’s books and records with respect to the Leased
Property and all funds and accounts held under the Indenture.
The Town and its representatives shall have the right to examine and inspect the books
and records of the Trustee relating to the Leased Property at all reasonable times from the date of
this Lease and until three years after the termination date of this Lease.
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ARTICLE 11
PURCHASE OPTION
Section 11.1 Purchase Option. The Town shall have the option to purchase the
Trustee’s leasehold interest in the Leased Property, but only if an Event of Lease Default or an
Event of Nonappropriation has not occurred and is then continuing. The Town may exercise its
option on any date by complying with one of the conditions set forth in Section 11.2.
The Town shall give the Trustee notice of its intention to exercise its option not less than
forty-five (45) days in advance of the date of exercise and shall deposit the required moneys with
the Trustee on or before the date selected to pay the Purchase Option Price. The Trustee may
waive such notice or may agree to a shorter notice period in the sole determination of the
Trustee.
If the Town shall have given notice to the Trustee of its intention to purchase the
Trustee’s leasehold interest in the Leased Property or prepay Base Rentals, but shall not have
deposited the amounts with the Trustee on the date specified in such notice, the Town shall
continue to pay Base Rentals, which have been specifically appropriated by the Town for such
purpose, as if no such notice had been given.
Section 11.2 Conditions for Purchase Option. The Trustee shall transfer and release
the Trustee’s leasehold interests in the Leased Property to the Town in the manner provided for
in Section 11.3 of this Lease; provided, however, that prior to such transfer and release, either:
(a) the Town shall have paid the then applicable Purchase Option Price which
shall equal the sum of the amount necessary to defease and discharge the Indenture as
provided therein (i.e., provision for payment of all principal and interest portions of any
and all Certificates which may have been executed and delivered pursuant to the
Indenture shall have been made in accordance with the terms of the Indenture) plus any
fees and expenses then owing to the Trustee; or
(b) the Town shall have paid all Base Rentals set forth in Exhibit C (Base
Rentals Schedule) hereto, for the entire maximum Lease Term, and all then current
Additional Rentals required to be paid hereunder.
At the Town’s option, amounts then on deposit in any fund held under the Indenture
(except the Rebate Fund, the Escrow Account, and excluding any defeasance escrow funds) may
be credited toward the Purchase Option Price.
Section 11.3 Manner of Conveyance. At the closing of the purchase or other
conveyance of all of the Trustee’s leasehold interest in the Leased Property pursuant to Section
11.2 of this Lease, the Trustee shall release and terminate the Site Lease, this Lease and the
Indenture and execute and deliver to the Town any necessary documents releasing, assigning,
transferring and conveying the Trustee’s leasehold interest in the Leased Property, as they then
exist, subject only to the following:
(a) Permitted Encumbrances, other than the Site Lease, this Lease and the
Indenture;
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(b) all liens, encumbrances and restrictions created or suffered to exist by the
Trustee as required or permitted by the Site Lease, this Lease or the Indenture or arising
as a result of any action taken or omitted to be taken by the Trustee as required or
permitted by the Site Lease, this Lease or the Indenture;
(c) any lien or encumbrance created or suffered to exist by action of the
Town; and
(d) those liens and encumbrances (if any) to which title to the Leased Property
was subject when leased to the Trustee.
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ARTICLE 12
ASSIGNMENT AND SUBLEASING
Section 12.1 Assignment by the Trustee; Replacement of the Trustee. Except as
otherwise provided in this Lease and the Indenture, this Lease may not be assigned by the
Trustee for any reason other than to a successor by operation of law or to a successor trustee
under the Indenture or with the prior written consent of the Town which consent shall not be
unreasonably withheld. The Trustee will notify the Town of any assignment to a successor by
operation of law.
If an Event of Lease Default or Event of Nonappropriation has occurred and is
continuing, the Trustee may act as herein provided, including exercising the remedies set forth in
Section 13.2, without the prior written direction of the Town.
Section 12.2 Assignment and Subleasing by the Town. This Lease may not be
assigned by the Town for any reason other than to a successor by operation of law. However, the
Leased Property may be subleased, as a whole or in part, by the Town, without the necessity of
obtaining the consent of the Trustee or any owner of the Certificates subject to each of the
following conditions:
(a) The Leased Property may be subleased, in whole or in part, only to an
agency or department of, or a political subdivision of, the State, or to another entity or
entities with Approval of Special Counsel;
(b) This Lease, and the obligations of the Town hereunder, shall, at all times
during the Lease Term remain obligations of the Town, and the Town shall maintain its
direct relationships with the Trustee, notwithstanding any sublease;
(c) The Town shall furnish or cause to be furnished to the Trustee a copy of
any sublease agreement;
(d) No sublease by the Town shall cause the Leased Property to be used for
any purpose which would cause the Town to violate its tax covenant in Section 10.5
hereof; and
(e) Any sublease of the Leased Property shall provide that it shall
automatically terminate upon a termination of this Lease.
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ARTICLE 13
EVENTS OF LEASE DEFAULT AND REMEDIES
Section 13.1 Events of Lease Default Defined. Any one of the following shall be
Events of Lease Default under this Lease:
(a) failure by the Town to pay any Base Rentals or Additional Rentals, which
have been specifically appropriated by the Town for such purpose, during the Initial
Term or any Renewal Term, within five (5) Business Days of the date on which they are
due; or
(b) subject to the provisions of Section 6.5 hereof, failure by the Town to
vacate or surrender possession of the Leased Property by March 1 of any Renewal Term
in respect of which an Event of Nonappropriation has occurred; or
(c) failure by the Town to observe and perform any covenant, condition or
agreement on its part to be observed or performed hereunder, other than as referred to in
(a) or (b), for a period of 30 days after written notice, specifying such failure and
requesting that it be remedied shall be received by the Town from the Trustee, unless the
Trustee shall agree in writing to an extension of such time prior to its expiration;
provided that if the failure stated in the notice cannot be corrected within the applicable
period, the Trustee shall not withhold its consent to an extension of such time if
corrective action can be instituted by the Town within the applicable period and
diligently pursued until the default is corrected; or
(d) failure by the Town to comply with the terms of the Site Lease.
The foregoing provisions of this Section 13.1 are subject to the following limitations:
(i) the Town shall be obligated to pay the Base Rentals and Additional
Rentals, which have been specifically appropriated by the Town for such purpose,
only during the then current Lease Term, except as otherwise expressly provided
in this Lease; and
(ii) if, by reason of Force Majeure, the Town or the Trustee shall be
unable in whole or in part to carry out any agreement on their respective parts
herein contained other than the Town’s agreement to pay the Base Rentals and
Additional Rentals due hereunder, the Town or the Trustee shall not be deemed in
default during the continuance of such inability. The Town and the Trustee each
agree, however, to remedy, as promptly as legally and reasonably possible, the
cause or causes preventing the Town or the Trustee from carrying out their
respective agreements; provided that the settlement of strikes, lockouts and other
industrial disturbances shall be entirely within the discretion of the Town.
Section 13.2 Remedies on Default. Whenever any Event of Lease Default shall have
happened and be continuing beyond any applicable cure period, the Trustee may, or shall at the
request of the owners of a majority in aggregate principal amount of the Certificates then
Outstanding and upon indemnification as to costs and expenses as provided in the Indenture,
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without any further demand or notice, take one or any combination of the following remedial
steps:
(a) terminate the Lease Term and give notice to the Town to vacate and
surrender possession of the Leased Property, which vacation and surrender the Town
agrees to complete within sixty (60) days from the date of such notice; provided, in the
event the Town does not vacate and surrender possession on the termination date, the
provisions of Section 6.5 hereof shall apply;
(b) lease or sublease the Leased Property or sell or assign any interest the
Trustee has in the Leased Property, including the Trustee’s leasehold interest in the
Leased Property;
(c) recover from the Town:
(i) the portion of Base Rentals and Additional Rentals, for which a
specific Appropriation has been effected by the Town for such
purpose, which would otherwise have been payable hereunder,
during any period in which the Town continues to occupy, use or
possess the Leased Property; and
(ii) Base Rentals and Additional Rentals, for which a specific
Appropriation has been effected by the Town for such purpose,
which would otherwise have been payable by the Town hereunder
during the remainder, after the Town vacates and surrenders
possession of the Leased Property, of the Fiscal Year in which
such Event of Lease Default occurs.
(d) take whatever action at law or in equity may appear necessary or desirable
to enforce its rights in and to the Leased Property under the Site Lease, this Lease and the
Indenture.
Upon the occurrence of an Event of Nonappropriation, the Trustee shall be entitled to
recover from the Town the amounts set forth in Section 13.2(c)(i) hereof if the Town continues
to occupy the Leased Property after December 31 of the Fiscal Year in which such Event of
Nonappropriation occurs.
The Trustee shall also be entitled, upon any Event of Lease Default, to any moneys in any
funds or accounts created under the Indenture (except the Rebate Fund, the Escrow Account or
any other defeasance escrow accounts).
Notwithstanding the foregoing provisions or any other provisions in this Lease or the
Indenture, so long as the Initial Purchaser is the sole Owner of the Certificates, the Trustee shall
not take any remedial action under this Lease or the Indenture, including without limitation this
Section 13.2, without the prior written consent and direction of the Initial Purchaser. Before
taking any such action as directed by the Original Purchaser, the Trustee shall be entitled to the
indemnification provided in Section 8.02(m) of the Indenture.
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Section 13.3 Limitations on Remedies. The remedies in connection with an Event of
Lease Default shall be limited as set forth in this Section. A judgment requiring a payment of
money may be entered against the Town by reason of an Event of Lease Default only as to the
Town’s liabilities described in paragraph (c) of Section 13.2 hereof. A judgment requiring a
payment of money may be entered against the Town by reason of an Event of Nonappropriation
only to the extent that the Town fails to vacate and surrender possession of the Leased Property
as required by Section 6.4 of this Lease, and only as to the liabilities described in paragraph (c)(i)
of Section 13.2 hereof. The remedy described in paragraph (c)(ii) of Section 13.2 of this Lease is
not available for an Event of Lease Default consisting of failure by the Town to vacate and
surrender possession of the Leased Property by March 1 following an Event of
Nonappropriation.
Section 13.4 No Remedy Exclusive. Subject to Section 13.3 hereof, no remedy
herein conferred upon or reserved to the Trustee, is intended to be exclusive, and every such
remedy shall be cumulative and shall be in addition to every other remedy given hereunder or
now or hereafter existing at law or in equity. 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 time to time and as often
as may be deemed expedient. In order to entitle the Trustee to exercise any remedy reserved in
this Article 13, it shall not be necessary to give any notice, other than such notice as may be
required in this Article 13.
Section 13.5 Waivers. The Trustee may waive any Event of Lease Default under this
Lease and its consequences. In the event that any agreement contained herein should be
breached by either party and thereafter waived by the other party, such waiver shall be limited to
the particular breach so waived and shall not be deemed to waive any other breach hereunder.
Payment of Base Rentals or Additional Rentals by the Town shall not constitute a waiver of any
breach or default by the Trustee hereunder.
Section 13.6 Agreement to Pay Attorneys’ Fees and Expenses. In the event that
either party hereto shall default under any of the provisions hereof and the nondefaulting party
shall employ attorneys or incur other expenses for the collection of Base Rentals or Additional
Rentals, or the enforcement of performance or observance of any obligation or agreement on the
part of the defaulting party herein contained, the defaulting party agrees that it shall on demand
therefor pay to the nondefaulting party, to the extent permitted by law, the reasonable fees of
such attorneys and such other reasonable expenses so incurred by the nondefaulting party.
Notwithstanding the foregoing, any such fees and expenses owed by the Town hereunder shall
constitute Additional Rentals for all purposes of this Lease and shall be subject to Appropriation.
Section 13.7 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. To the extent permitted by law, in the case of an Event of
Nonappropriation or an Event of Lease Default neither the Trustee nor the Town nor any one
claiming through or under either of them shall or will set up, claim or seek to take advantage of
any appraisement, valuation, stay, extension or redemption laws now or hereafter in force in
order to prevent or hinder the enforcement of the Indenture; and the Trustee and the Town, for
themselves and all who may at any time claim through or under either of them, each hereby
waives, to the full extent that it may lawfully do so, the benefit of all such laws.
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Notwithstanding the foregoing, it is expressly understood that the Town cannot and does not
hereby waive its right to set up, claim or seek to take advantage of its police powers or its
Colorado constitutional or statutory right of eminent domain.
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ARTICLE 14
MISCELLANEOUS
Section 14.1 Sovereign Powers of Town. Nothing in this Lease shall be construed as
diminishing, delegating, or otherwise restricting any of the sovereign powers or immunities of
the Town. Nothing in this Lease shall be construed to require the Town to occupy and operate
the Leased Property other than as lessee, or to require the Town to exercise its right to purchase
the Leased Property as provided in Article 11 hereof.
Section 14.2 Notices. All notices, certificates or other communications to be given
hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by
certified or registered mail, postage prepaid, addressed as follows:
if to the Trustee,
[ADDRESS]
if to the Town,
Town of Avon, Colorado
100 Mikaela Way
Avon, Colorado 81620
Attention: Finance Director
The Town and the Trustee may, by written notice, designate any further or different
addresses to which subsequent notices, certificates or other communications shall be sent.
Section 14.3 Third Party Beneficiaries. It is expressly understood and agreed that
the Owners of the outstanding Certificates are third party beneficiaries to this Lease and
enforcement of the terms and conditions of this Lease, and all rights of action relating to such
enforcement, shall be strictly reserved to the Town, as lessee and the Trustee, as lessor, and their
respective successors and assigns, and to the Owners of the Certificates. Except as hereinafter
provided, nothing contained in this Lease shall give or allow any such claim or right of action by
any other or third person on this Lease. It is the express intention of the Town and the Trustee
that any person other than the Town, the Trustee or the Owners of the Certificates receiving
services or benefits under this Lease shall be deemed to be an incidental beneficiary only.
Section 14.4 Binding Effect. This Lease shall inure to the benefit of and shall be
binding upon the Trustee and the Town and their respective successors and assigns, subject,
however, to the limitations contained in Article 12 of this Lease.
Section 14.5 Amendments. This Lease may only be amended, changed, modified or
altered as provided in the Indenture.
Section 14.6 Amounts Remaining in Funds. It is agreed by the parties hereto that
any amounts remaining in the Base Rentals Fund, the Costs of Execution and Delivery Fund, or
any other fund or account created under the Indenture (except the Rebate Fund, the Escrow
Account, or any other defeasance escrow account), upon termination of the Lease Term, and
after payment in full of the Certificates (or provision for payment thereof having been made in
accordance with the provisions of this Lease and the Indenture) and fees and expenses of the
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Trustee in accordance with this Lease and the Indenture, shall belong to and be paid to the Town
by the Trustee, as an overpayment of Base Rentals.
Section 14.7 Triple Net Lease. This Lease shall be deemed and construed to be a
“triple net lease” and, subject to the prior Appropriation requirements hereof, the Town shall pay
absolutely net during the Lease Term, the Base Rentals, the Additional Rentals and all expenses
of, or other payments in respect of, the Leased Property as required to be paid by the Town under
this Lease, for which a specific Appropriation has been effected by the Town for such purpose,
free of any deductions, and without abatement, deduction or setoff (other than credits against
Base Rentals expressly provided for in this Lease).
Section 14.8 Computation of Time. In computing a period of days, the first day is
excluded and the last day is included. If the last day of any period is not a Business Day, the
period is extended to include the next day which is a Business Day. If a number of months is to
be computed by counting the months from a particular day, the period ends on the same
numerical day in the concluding month as the day of the month from which the computation is
begun, unless there are not that many days in the concluding month, in which case the period
ends on the last day of that month. Notwithstanding the foregoing, Base Rentals shall be
recalculated in the event of any Prepayment of Base Rentals as provided in Section 6.2(b) hereof.
Section 14.9 Payments Due on Holidays. If the date for making any payment or the
last day for performance of any act or the exercising of any right, as provided in this Lease, shall
be a day other than a Business Day, such payment may be made or act performed or right
exercised on the next succeeding Business Day, with the same force and effect as if done on the
nominal date provided in this Lease.
Section 14.10 Severability. Except for the requirement of the Town to pay Base
Rentals for which a specific Appropriation has been effected by the Town for such purpose and
the requirement of the Trustee to provide quiet enjoyment of the Leased Property and to convey
the Trustee’s leasehold interest in the Leased Property to the Town under the conditions set forth
in Article 11 of this Lease (which, if held invalid or unenforceable by any court of competent
jurisdiction, may have the effect of invalidating or rendering unenforceable the other provisions
of this Lease), in the event that any other provision of this Lease shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 14.11 Execution in Counterparts. This Lease may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 14.12 Applicable Law. This Lease shall be governed by and construed in
accordance with the law of the State of Colorado.
Section 14.13 The Trustee Is Independent of the Town. Neither the Trustee nor any
agent or employee of the Trustee shall be or shall be deemed to be an agent or employee of the
Town. The Trustee acknowledges that the Trustee and its employees are not entitled to
unemployment insurance benefits of the Town unless the Trustee or a third party otherwise
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provides such coverage and that the Town does not pay for or otherwise provide such coverage.
The Trustee shall have no authorization, express or implied, to bind the Town to any agreements,
liability or understanding except as expressly set forth herein.
Section 14.14 Governmental Immunity. Notwithstanding any other provisions of this
Lease to the contrary, no term or condition of this Lease shall be construed or interpreted as a
waiver, express or implied, of any of the immunities, rights, benefits, protections or other
provisions of the Colorado Governmental Immunity Act, Section 24-10-101, et. seq., C.R.S., as
now or hereafter amended.
Section 14.15 Recitals. The Recitals set forth in this Lease are hereby incorporated by
this reference and made a part of this Lease.
Section 14.16 Captions. The captions or headings herein are for convenience only and
in no way define, limit or describe the scope or intent of any provisions or Sections of this Lease.
Section 14.17 Trustee’s Disclaimer. It is expressly understood and agreed that (a) the
Lease is executed by [TRUSTEE] solely in its capacity as Trustee under the Indenture, and
(b) nothing herein shall be construed as creating any liability on [TRUSTEE] other than in its
capacity as Trustee under the Indenture. All financial obligations of the Trustee under this
Lease, except those resulting from its willful misconduct or negligence, are limited to the Trust
Estate.
Section 14.18 Electronic Transactions. The parties hereto agree that the transactions
described herein may be conducted, and related documents may be stored, by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action or suit in the appropriate court of law.
ATTACHMENT D
43
IN WITNESS WHEREOF, the parties have executed this Lease Purchase Agreement as
of the day and year first above written.
TOWN OF AVON, COLORADO,
as Lessee
[TRUSTEE], solely in its capacity of Trustee
under the Indenture, as Lessor
By: ________________________________ By: ________________________________
Sarah Smith Hymes, Mayor [AUTHORIZED PARTY], Senior Vice
President
Attest:
By:_____________________________
Brenda Torres, Town Clerk
[TOWN SEAL]
ATTACHMENT D
44
STATE OF COLORADO )
) ss.
TOWN OF AVON )
)
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of April, 2020, by
Sarah Smith Hymes and Brenda Torres, as Mayor and Town Clerk, respectively, of the Town of
Avon, Colorado.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
****************
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this _____ day of April, 2020, by
[AUTHORIZED PARTY], as Senior Vice President of [TRUSTEE], as Trustee.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
ATTACHMENT D
A-1
EXHIBIT A
DESCRIPTION OF LEASED PROPERTY
ATTACHMENT D
B-1
EXHIBIT B
PERMITTED ENCUMBRANCES
“Permitted Encumbrances” as defined in Section 1.2 of this Lease and the following:
(1) Liens for ad valorem taxes and special assessments not then delinquent, if
applicable.
(2) The Site Lease.
(3) This Lease.
(4) All other encumbrances appearing of record on the date hereof.
ATTACHMENT D
C-1
EXHIBIT C
BASE RENTALS SCHEDULE
Date
Base Rentals
Principal
Component
Certificates
Base Rentals
Interest Component
Certificates Total Base Rentals
Annual
Base Rentals
06/01/2020 --
12/01/2020
06/01/2021 --
12/01/2021
06/01/2022 --
12/01/2022
06/01/2023 --
12/01/2023
06/01/2024 --
12/01/2024
06/01/2025 --
12/01/2025
06/01/2026 --
12/01/2026
06/01/2027 --
12/01/2027
06/01/2028 --
12/01/2028
06/01/2029 --
12/01/2029
06/01/2030
12/01/2030
TOTAL
Base Rental payments are due on May 15 and November 15 of each year during the Lease Term.
The Base Rentals have been calculated on the basis of a 360-day year of twelve 30-day months and any
recalculation of Base Rentals under Section 6.2(b) hereof shall be done on the same basis. If Base
Rentals are stated to be due on any date that is not a Business Day, such Base Rentals shall be due on the
next day that is a Business Day without the accrual of interest on Base Rentals between such dates.
Statement Regarding the Leased Property
The duration of the Lease, throughout the maximum Lease Term, does not exceed the weighted
average useful life of the Leased Property and, to the extent that the Leased Property constitutes items of
personal property, such items are considered paid from the first Base Rentals described above.
ATTACHMENT D
D-1
EXHIBIT D
FORM OF NOTICE OF LEASE RENEWAL
To: [TRUSTEE], as Trustee
Attention: Global Corporate Trust Services
The undersigned is the Town Representative of the Town of Avon, Colorado (the
“Town”). The Town is the lessee under that certain Lease Purchase Agreement, dated as of
April [__], 2020 (the “Lease”), between the Town and [TRUSTEE], solely in its capacity of
Trustee under the Indenture, as the lessor thereunder. I am familiar with the facts herein certified
and am authorized and qualified to certify the same. The undersigned hereby states and certifies:
(a) the Town has effected or intends to effect on a timely basis an
Appropriation for the ensuing Fiscal Year which includes (1) sufficient amounts
authorized and directed to be used to pay all the Base Rentals and (2) sufficient amounts
to pay such Additional Rentals as are estimated to become due, all as further provided in
Sections 6.2, 6.3 and 6.4 of the Lease, whereupon, the Lease shall be renewed for the
ensuing Fiscal Year;
_______________
Initial
or
(b) the Town has determined not to renew the Lease for the ensuing Fiscal
Year.
_______________
Initial
TOWN OF AVON, COLORADO
By:
Town Representative
51929511.v1
ATTACHMENT D
INDENTURE OF TRUST
DATED AS OF APRIL [__], 2020
BY
[TRUSTEE],
As Trustee
ATTACHMENT E
This Table of Contents is not a part of this Indenture and is only for convenience of reference
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS ........................................................................................................ 3
Section 1.01 Certain Funds and Accounts. .......................................................................... 3
Section 1.02 Definitions....................................................................................................... 3
ARTICLE 2 THE CERTIFICATES ........................................................................................... 9
Section 2.01 Amount of the Certificates; Nature of the Certificates. .................................. 9
Section 2.02 Forms, Denominations, Maturities and Other Terms of Certificates.............. 9
Section 2.03 Reissuance of Certificates as Tax-Exempt ................................................... 10
Section 2.04 Execution; Global Book-Entry System. ........................................................ 10
Section 2.05 Delivery of Certificates. ................................................................................ 11
Section 2.06 Mutilated, Lost, Stolen or Destroyed Certificates. ....................................... 11
Section 2.07 Registration of Certificates; Persons Treated as Owners; Transfer and
Exchange of Certificates. .............................................................................. 11
Section 2.08 Cancellation of Certificates. .......................................................................... 12
Section 2.09 Additional Certificates. ................................................................................. 12
Section 2.10 Uniform Commercial Code. .......................................................................... 14
ARTICLE 3 REVENUES AND FUNDS................................................................................... 15
Section 3.01 Segregation and Disposition of Proceeds of Certificates. ............................. 15
Section 3.02 Application of Revenues and Other Moneys. ............................................... 15
Section 3.03 Base Rentals Fund......................................................................................... 15
Section 3.04 Escrow Account. ........................................................................................... 15
Section 3.05 Rebate Fund. ................................................................................................. 16
Section 3.06 Costs of Execution and Delivery Fund. ........................................................ 17
Section 3.07 Reserved. ....................................................................................................... 17
Section 3.08 Moneys to be Held in Trust. ......................................................................... 17
Section 3.09 Nonpresentment of Certificates. ................................................................... 17
Section 3.10 Repayment to the Town from the Trustee. ................................................... 18
ARTICLE 4 REDEMPTION OF CERTIFICATES ............................................................... 19
Section 4.01 Optional Redemption. ................................................................................... 19
Section 4.02 Mandatory Sinking Fund Redemption. ......................................................... 19
Section 4.03 Extraordinary Mandatory Redemption. ........................................................ 20
Section 4.04 Partial Redemption........................................................................................ 21
Section 4.05 Notice of Redemption. .................................................................................. 21
Section 4.06 Redemption Payments. ................................................................................. 22
ARTICLE 5 INVESTMENTS ................................................................................................... 23
Section 5.01 Investment of Moneys................................................................................... 23
Section 5.02 Method of Valuation and Frequency of Valuation. ...................................... 24
ARTICLE 6 DEFEASANCE AND DISCHARGE .................................................................. 25
Section 6.01 Defeasance and Discharge. ........................................................................... 25
ARTICLE 7 EVENTS OF INDENTURE DEFAULT AND REMEDIES ............................. 27
Section 7.01 Events of Indenture Default Defined. ........................................................... 27
Section 7.02 Remedies ....................................................................................................... 27
Section 7.03 Legal Proceedings by Trustee. ...................................................................... 27
ATTACHMENT E
2
Section 7.04 Discontinuance of Proceedings by Trustee. .................................................. 28
Section 7.05 Owners of Certificates May Direct Proceedings. ......................................... 28
Section 7.06 Limitations on Actions by Owners of Certificates. ...................................... 28
Section 7.07 Trustee May Enforce Rights Without Possession of Certificates. ................ 29
Section 7.08 Remedies Not Exclusive. .............................................................................. 29
Section 7.09 Delays and Omissions Not to Impair Rights................................................. 29
Section 7.10 Application of Moneys in Event of Indenture Default. ................................ 29
ARTICLE 8 CONCERNING THE TRUSTEE ....................................................................... 30
Section 8.01 Duties of the Trustee. .................................................................................... 30
Section 8.02 Liability of Trustee; Trustee’s Use of Agents............................................... 30
Section 8.03 Representations and Covenants of Trustee. .................................................. 32
Section 8.04 Compensation. .............................................................................................. 33
Section 8.05 Notice of Default; Right to Investigate. ........................................................ 33
Section 8.06 Obligation to Act on Defaults. ...................................................................... 34
Section 8.07 Reliance on Requisition, etc. ........................................................................ 34
Section 8.08 Trustee May Own Certificates. ..................................................................... 34
Section 8.09 Construction of Ambiguous Provisions. ....................................................... 34
Section 8.10 Resignation of Trustee. ................................................................................. 35
Section 8.11 Removal of Trustee. ...................................................................................... 35
Section 8.12 Appointment of Successor Trustee. .............................................................. 35
Section 8.13 Qualification of Successor. ........................................................................... 35
Section 8.14 Instruments of Succession............................................................................. 35
Section 8.15 Merger of Trustee. ........................................................................................ 36
Section 8.16 Intervention by Trustee. ................................................................................ 36
Section 8.17 Books and Record of the Trustee; Trustee Record Keeping. ........................ 36
Section 8.18 Environmental Matters.................................................................................. 36
ARTICLE 9 SUPPLEMENTAL INDENTURES AND AMENDMENTS OF THE LEASE
AND SITE LEASE ...................................................................................................................... 37
Section 9.01 Supplemental Indentures and Amendments Not Requiring Certificate
Owners’ Consent. .......................................................................................... 37
Section 9.02 Supplemental Indentures and Amendments Requiring Certificate Owners’
Consent. ........................................................................................................ 37
Section 9.03 Amendment of the Lease and the Site Lease. ............................................... 38
ARTICLE 10 MISCELLANEOUS ........................................................................................... 40
Section 10.01 Evidence of Signature of Owners and Ownership of Certificates. ............... 40
Section 10.02 Inspection of the Leased Property. ................................................................ 40
Section 10.03 Parties Interested Herein. .............................................................................. 40
Section 10.04 Titles, Headings, Etc. .................................................................................... 41
Section 10.05 Severability. .................................................................................................. 41
Section 10.06 Governing Law. ............................................................................................ 41
Section 10.07 Execution in Counterparts............................................................................. 41
Section 10.08 Notices. ......................................................................................................... 41
Section 10.09 Successors and Assigns................................................................................. 41
Section 10.10 Consent and Notice to the Initial Purchaser. ................................................. 41
Section 10.11 Payments Due on Saturdays, Sundays and Holidays. ................................... 41
Section 10.12 Electronic Storage. ........................................................................................ 42
ATTACHMENT E
3
EXHIBIT A - FORM OF CERTIFICATE A-1
ATTACHMENT E
1
INDENTURE OF TRUST
THIS INDENTURE OF TRUST dated as of April [__], 2020 (this “Indenture”), is
executed and delivered by [TRUSTEE], a national banking association duly organized and
existing under the laws of the United States of America, solely in its capacity as trustee (the
“Trustee”) for the benefit of the Owners of the Certificates as set forth in this Indenture.
PREFACE
All capitalized terms used herein will have the meanings ascribed to them in Article 1 of
this Indenture.
RECITALS
1. This Indenture is being executed and delivered to provide for the execution,
delivery and payment of and security for the Certificates, the proceeds of which will be used to
finance the Refunding Project. The Certificates evidence undivided interests in the right to
receive Revenues under the Lease.
2. Pursuant to the Lease, and subject to the rights of the Town to not appropriate the
Base Rentals and Additional Rentals thereunder and, therefore, to not renew and to terminate the
Lease and other limitations as therein provided, the Town is to pay certain Base Rentals directly
to the Trustee, for the benefit of the Owners of the Certificates, in consideration of the Town’s
right to possess and use the Leased Property.
3. The Trustee has entered into this Indenture for and on behalf of the Owners of the
Certificates and the Trustee will hold the Revenues and the Leased Property and will exercise the
Trustee’s rights under the Site Lease and the Lease for the equal and proportionate benefit of the
Owners of the Certificates as described herein, and will disburse money received by the Trustee
in accordance with this Indenture.
4. The proceeds from the sale of the Certificates to the Owners will be disbursed by
the Trustee to implement the Refunding Project as described herein and in the Lease and for
other purposes set forth herein.
NOW, THEREFORE, THIS INDENTURE WITNESSETH, that the Trustee, in
consideration of the premises, the purchase of the Certificates by the Owners and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, in order
to secure the payment of the principal of, premium, if any, and interest on the Certificates and all
other amounts payable to the Owners with respect to the Certificates, to secure the performance
and observance of all the covenants and conditions set forth in the Certificates and this Indenture,
and to declare the terms and conditions upon and subject to which the Certificates are executed,
delivered and secured, has executed and delivered this Indenture and has granted, assigned,
pledged, bargained, sold, alienated, remised, released, conveyed, set over and confirmed, and by
these presents does grant, assign, pledge, bargain, sell, alienate, remise, release, convey, set over
ATTACHMENT E
2
and confirm, in trust upon the terms set forth herein all and singular the following described
property, franchises and income, including any title or interest therein acquired after these
presents, all and singular the following described property, franchises and income, including any
title therein acquired after these presents (collectively, the “Trust Estate”):
(a) all rights, title and interest of the Trustee in, to and under the Site Lease
and the Lease relating to the Leased Property, subject to Permitted Encumbrances (other
than the Trustee’s rights to payment of its fees and expenses under the Site Lease and the
Lease and the rights of third parties to Additional Rentals payable to them under the
Lease);
(b) all Revenues and any other receipts receivable by or on behalf of the
Trustee pursuant to the Lease, including without limitation, all Base Rentals,
Prepayments, the Purchase Option Price and Net Proceeds;
(c) all money and securities from time to time held by the Trustee under this
Indenture in the Base Rentals Fund and the Costs of Execution and Delivery Fund (but
not the Rebate Fund, the Escrow Agreement or any other defeasance escrow fund or
account), any and all other property, revenues or funds from time to time hereafter by
delivery or by writing of any kind specially granted, assigned or pledged as and for
additional security hereunder, by any person in favor of the Trustee, which shall accept
any and all such property and hold and apply the same subject to the terms hereof.
TO HAVE AND TO HOLD IN TRUST, NEVERTHELESS, the Trust Estate for the
equal and ratable benefit and security of all Owners of the Certificates, without preference,
priority or distinction as to lien or otherwise of any one Certificate over any other Certificate
upon the terms and subject to the conditions hereinafter set forth.
PROVIDED, HOWEVER, that if the principal of the Certificates, the premium, if any,
and the interest due or to become due thereon, shall be paid at the times and in the manner
mentioned in the Certificates, according to the true intent and meaning thereof, and if there are
paid to the Trustee all sums of money due or to become due to the Trustee in accordance with the
terms and provisions hereof, then, upon such final payments, this Indenture and the rights hereby
granted shall cease, terminate and be void; otherwise this Indenture shall be and remain in full
force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly declared, that all
Certificates are to be executed and delivered and all said property, rights, interests, revenues and
receipts hereby pledged are to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations, covenants, agreements, trusts, uses and purposes as hereinafter
expressed, and the Trustee has agreed and covenanted, and does hereby agree and covenant, for
the benefit of the Owners, as follows:
ATTACHMENT E
3
ARTICLE 1
DEFINITIONS
Section 1.01 Certain Funds and Accounts. All references herein to any Funds and
Accounts shall mean the Funds and Accounts so designated which are established pursuant to
Article 3 hereof.
Section 1.02 Definitions. All capitalized terms defined in Article 1 of the Lease shall
have the same meaning in this Indenture. In addition, the following capitalized terms shall have
the following meanings under this Indenture, provided, however, that in the event of any
inconsistency, any term defined below shall have the meaning ascribed to it in the Lease:
“Additional Certificates” means Additional Certificates which may be executed and
delivered pursuant to this Indenture.
“Additional Rentals” means the payment or cost of all:
(a) (i) reasonable expenses and fees of the Trustee related to the performance
or discharge of its responsibilities under the provisions of the Lease, the Site Lease or this
Indenture, including the reasonable fees and expenses of any person or firm employed by
the Town to make rebate calculations under the provisions of Section 3.05 of this
Indenture and the expenses of the Trustee in respect of any policy of insurance or surety
bond obtained in respect of the Certificates executed and delivered with respect to the
Lease, (ii) the cost of insurance premiums and insurance deductible amounts under any
insurance policy reasonably deemed necessary by the Trustee to protect the Trustee from
any liability under the Lease, and approved by the Town Representative, which approval
shall not be unreasonably withheld, (iii) reasonable legal fees and expenses incurred by
the Trustee to defend the Trust Estate or the Trustee from and against any legal claims,
and (iv) reasonable expenses and fees of the Trustee incurred at the request of the Town
Representative;
(b) taxes, assessments, insurance premiums, utility charges, maintenance,
upkeep, repair and replacement with respect to the Leased Property and as otherwise
required under the Lease;
(c) payments into the Rebate Fund for rebate payments as provided in the
Lease; and
(d) all other charges and costs (together with all interest and penalties that
may accrue thereon in the event that the Town shall fail to pay the same, as specifically
set forth in the Lease) which the Town agrees to assume or pay as Additional Rentals
under the Lease.
Additional Rentals shall not include Base Rentals.
“Approval of Special Counsel” means an opinion of Special Counsel to the effect that the
matter proposed will not adversely affect the excludability from gross income for federal income
tax purposes of the Interest Portion of the Base Rentals paid by the Town under the Lease.
ATTACHMENT E
4
“Authorized Denominations” means $5,000 or integral multiples of $5,000.
“Base Rentals” means the rental payments payable by the Town during the Lease Term,
which constitute payments payable by the Town for and in consideration of the right to possess
and use the Leased Property as set forth in Exhibit C (Base Rentals Schedule) of the Lease. Base
Rentals does not include Additional Rentals.
“Base Rentals Fund” means the fund created under Section 3.03 hereof.
“Beneficial Owners” means any person for which a DTC Participant acquires an interest
in Certificates.
“Business Day” means any day, other than a Saturday, Sunday or legal holiday or a day
(a) on which banks located in Denver, Colorado, or where the Trustee’s designated corporate
trust office is located are required or authorized by law or executive order to close or (b) on
which the Federal Reserve System is closed.
“Certificates” means the “means the “Taxable/Convertible to Tax-Exempt Refunding
Certificates of Participation, Series 2020, Evidencing Proportionate Interests in the Base Rentals
and other Revenues under an annually renewable Lease Purchase Agreement dated as of April
[__], 2020, between [TRUSTEE], solely in its capacity as trustee under the Indenture, as lessor,
and the Town of Avon, Colorado, as lessee” dated as of their date of delivery, executed and
delivered pursuant to this Indenture.
“Charter” means the home rule charter of the Town, and any amendments or
supplements thereto.
“Closing” means the date of execution and delivery of the Certificates.
“Conversion Date” means the date on which the Certificates bearing interest at the
Taxable Rate is reissued (for federal income tax purposes) as Certificates bearing interest at the
Tax-Exempt Rate, which date is expected to be on or after September 2, 2020.
“Conversion Opinion” means an opinion of Special Counsel upon which the Purchaser is
entitled to rely to the effect that, on and after the Conversion Date, the interest on the Certificates
reissued after such date will be excluded from the gross income of the recipients for federal and
State income tax purposes.
“Costs of Execution and Delivery” means all items of expense directly or indirectly
payable by the Trustee related to the authorization, execution and delivery of the Site Lease and
the Lease and related to the authorization, sale, execution and delivery of the Certificates and to
be paid from the Costs of Execution and Delivery Fund, including but not limited to, survey
costs, title insurance premiums, closing costs and other costs relating to the leasing of the Leased
Property under the Site Lease and the Lease, costs of preparation and reproduction of documents,
costs of printing the Certificates, initial fees and charges of the Trustee and Paying Agent, legal
fees and charges, including fees and expenses of Bond Counsel, and Counsel to the Trustee, fees
and disbursements of professionals, fees and charges for preparation, execution and safekeeping
of the Certificates, and any other cost, charge or fee in connection with the original sale and the
ATTACHMENT E
5
execution and delivery of the Certificates; provided, however, that Additional Rentals shall not
be Costs of Execution and Delivery of the Certificates and are to be paid by the Town as
provided in the Lease.
“Costs of Execution and Delivery Fund” means the fund created under Section 3.06
hereof.
“CRS” means Colorado Revised Statutes.
“Council” means the Town Council of the Town or any successor to its functions.
“Escrow Account” means a special fund and separate trust account to be established and
maintained pursuant to the Authorizing Resolution and the Escrow Agreement for the purpose of
paying the principal of and interest on the Remaining 2006 Bonds.
“Escrow Agent” means [TRUSTEE], Denver, Colorado, and any successor and assign
thereof, being a commercial bank, a member of the Federal Deposit Insurance Corporation and
having full and complete trust powers, where the Escrow Account is established and maintained.
“Escrow Agreement” means the “Refunding Escrow Agreement,” dated as of the Closing
Date, entered into by and between the Town and the Trustee, as Escrow Agent, concerning the
establishment and maintenance of the Escrow Account.
“Event(s) of Indenture Default” means those defaults specified in Section 7.01 of this
Indenture.
“Extraordinary Mandatory Redemption” means any redemption made pursuant to Section
4.03 hereof.
“Federal Securities” means non-callable bills, certificates of indebtedness, notes or bonds
which are direct obligations of, or the principal of and interest on which are unconditionally
guaranteed by, the United States of America.
“Finance Director” means the Finance Director of the Town or his or her successor in
functions, if any.
“Fiscal Year” means the Town’s fiscal year, which begins on January 1 of each calendar
year and ends on December 31 of the same calendar year, or any other twelve month period
which the Town or other appropriate authority hereafter may establish as the Town’s fiscal year.
“Indenture” means this Indenture of Trust dated as of April [__], 2020, entered into by
the Trustee as the same may be hereafter amended or supplemented.
“Initial Purchaser” means [INITIAL PURCHASER], and its successors and assigns, as
the initial purchaser and Owner of the Certificates.
“Interest Payment Date” means, in respect of the Certificates, each June 1 and December
1, commencing [_____].
ATTACHMENT E
6
“Lease” means the Lease Purchase Agreement dated as of April [__], 2020, between the
Trustee, as lessor, and the Town, as lessee, as the same may be amended.
“Leased Property” means the Site and the premises, buildings and improvements situated
thereon, including all fixtures attached thereto, as more particularly described in Exhibit A to the
Lease, together with any and all additions and modifications thereto and replacements thereof,
including, without limitation, the easements, rights of way, covenants and other rights set forth in
the documents listed on Exhibit B attached thereto, and any New Facility.
“Mayor” means the Mayor of the Town, or his or her successor in duties.
“New Facility” means any real property, buildings or equipment leased by the Town to
the Trustee pursuant to a future amendment to the Site Lease and leased back by the Town from
the Trustee pursuant to a future amendment to the Lease in connection with the execution and
delivery of Additional Certificates.
“Optional Redemption” means any redemption made pursuant to Section 4.01 hereof and
as provided in the form of the Certificate set forth in Exhibit A hereto.
“Optional Redemption Date” means the date of redemption of the Certificates upon
Prepayment of Base Rentals or the payment of the Purchase Option Price under the Lease.
“Outstanding” means, with respect to the Certificates, all Certificates executed and
delivered pursuant to this Indenture as of the time in question, except:
(a) All Certificates theretofore canceled or required to be canceled under Section 2.08
of this Indenture;
(b) Certificates in substitution for which other Certificates have been executed and
delivered under Section 2.06 or 2.07 of this Indenture;
(c) Certificates which have been redeemed as provided in Article 4 of this Indenture;
(d) Certificates for the payment or redemption of which provision has been made in
accordance with Article 6 of this Indenture; provided that, if such Certificates are being
redeemed, the required notice of redemption has been given or provision satisfactory to the
Trustee has been made therefor; and
(e) Certificates deemed to have been paid pursuant to Section 6.01 of this Indenture.
“Owners” means the registered owners of any Certificates.
“Paying Agent” means the Trustee or any successor or additional paying agent appointed
pursuant to this Indenture.
“Permitted Investments” means those investments the Town is authorized to enter into
under the Charter and the laws of the State of Colorado.
ATTACHMENT E
7
“Rebate Fund” means the fund created under Section 3.05 hereof.
“Redemption Date” means the earliest date on which the 2010 Certificates may be called
for prior redemption.
“Refunding Project” means the exercise of the Town of its option to prepay the 2010
Lease and fully redeem, defease and discharge the 2010 Certificates on the Redemption Date.
“Regular Record Date” means the close of business on the 15th day of the calendar month
immediately preceding the Interest Payment Date (whether or not a Business Day).
“Revenues” means (a) all amounts payable by or on behalf of the Town or with respect to
the Leased Property pursuant to the Lease including, but not limited to, all Base Rentals, the
Purchase Option Price and Net Proceeds, but not including Additional Rentals; (b) any portion of
the proceeds of the Certificates deposited into the Base Rentals Fund created under this
Indenture; and (c) any moneys and securities, including investment income, held by the Trustee
in the Funds and Accounts established under this Indenture (except for moneys and securities
held in the Rebate Fund, the Escrow Account or any other defeasance escrow account).
“Site” means the real property owned by the Town and leased by the Town to the Trustee
under the Site Lease and subleased by the Trustee to the Town under the Lease, the legal
description of which is set forth in Exhibit A to the Lease, or an amendment or supplement
thereto.
“Site Lease” means the Site Lease Agreement, dated as of April [__], 2020, between the
Town, as lessor, and the Trustee, as lessee, as the same may hereafter be amended.
“Special Counsel” means any counsel experienced in matters of municipal law and listed
in the list of municipal bond attorneys, as published semiannually by The Bond Buyer, or any
successor publication. So long as the Lease Term is in effect, the Town shall have the right to
select Special Counsel.
“Supplemental Act” means the Supplemental Public Securities Act, constituting Title 11,
Article 57, Part 2, C.R.S.
“Tax Certificate” means the Tax Compliance and No Arbitrage Certificate entered into
by the Town with respect to the Lease and the Certificates.
“Tax Code” means the Internal Revenue Code of 1986, as amended, and all regulations
and rulings promulgated thereunder.
“Taxable Rate” means [___]%.
“Tax-Exempt Rate” the rate to be borne by the Certificates after the Conversion Date,
such rate being [___]%.
“Town” means the Town of Avon, Colorado.
ATTACHMENT E
8
“Town Manager” means the Town Manager of the Town or his or her successor in
function.
“Town Representative” means the Mayor, the Town Manager, the Finance Director or
such other person at the time designated to act on behalf of the Town for the purpose of
performing any act under the Lease, the Site Lease or this Indenture by a written certificate
furnished to the Trustee containing the specimen signature of such person or persons and signed
on behalf of the Town by the Mayor or Mayor Pro Tem.
“Trust Estate” means all of the property placed in trust by the Trustee pursuant to the
Granting Clauses hereof.
“Trustee” means [TRUSTEE], solely in its capacity as Trustee under this Indenture for
the benefit of the Owners of the Certificates and any Additional Certificates, and its successors
and assigns.
“2010 Certificates” means the Certificates of Participation, Series 2010 in the original
principal amount of $6,680,000, of which $4,300,000 is currently outstanding.
ATTACHMENT E
9
ARTICLE 2
THE CERTIFICATES
Section 2.01 Amount of the Certificates; Nature of the Certificates. Except as
provided in Section 2.09 hereof, the aggregate original principal amount of Certificates that may
be executed and delivered pursuant to this Indenture shall be $[_____]. The Certificates shall
constitute proportionate interests in the Trustee’s right to receive the Base Rentals under the
Lease and other Revenues. The Certificates shall constitute a contract between the Trustee and
the Owners. In no event shall any decision by the Council not to appropriate any amounts
payable under the Lease be construed to constitute an action impairing such contract.
The Certificates shall not constitute a mandatory charge or requirement of the Town in
any ensuing Fiscal Year beyond the current Fiscal Year, and shall not constitute or give rise to a
general obligation or other indebtedness of the Town or a multiple fiscal year direct or indirect
debt or other financial obligation whatsoever of the Town, within the meaning of any
constitutional, home rule charter or statutory debt provision or limitation. No provision of the
Certificates shall be construed or interpreted as creating a 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. The execution and delivery of the Certificates shall not
directly or indirectly obligate the Town to renew the Lease from Fiscal Year to Fiscal Year or to
make any payments beyond those appropriated for the Town’s then current Fiscal Year.
Section 2.02 Forms, Denominations, Maturities and Other Terms of Certificates.
The Certificates shall be in substantially the form attached hereto as Exhibit A and all provisions
and terms of the Certificates set forth therein are incorporated in this Indenture.
The Certificates shall be executed and delivered in fully registered form in Authorized
Denominations not exceeding the aggregate principal amount stated to mature on any given date.
The Certificates shall be numbered consecutively in such manner as the Trustee shall determine;
provided that while the Certificates are held by the Initial Purchaser, there shall be one certificate
registered in the name of the Initial Purchaser or a designee.
The Certificates are executed and delivered under the authority of the Supplemental Act
and shall so recite. Pursuant to Section 11-57-210 of the Supplemental Act, such recital shall be
conclusive evidence of the validity and the regularity of the execution and delivery of the
Certificates after their delivery for value.
The Certificates shall be dated April [__], 2020, shall mature on December 1, 2030.
Prior to the Conversion Date (if any), the Certificates shall bear interest at a fixed rate
equal to [___]% per annum (the “Taxable Rate”). On and after the Conversion Date, the
Certificates shall bear interest at a fixed rate equal to [__]% per annum (the “Tax-Exempt Rate”).
The Certificates shall bear interest from their date to maturity or prior redemption at the
rates per annum set forth above, payable on each Interest Payment Date and calculated on the
basis of a 360-day year of twelve 30-day months.
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The payment of principal, premium, if any, and interest represented by the Certificates
shall be made in lawful money of the United States of America.
The Certificates shall be subject to redemption prior to maturity, all as provided in Article
4 hereof.
The principal of, premium, if any, and interest on all Certificates shall be payable to the
Initial Purchaser or Owners thereof at its address last appearing on the registration books
maintained by the Trustee.
Interest shall be paid to the Initial Purchaser or Owner of each Certificate, as shown on
the registration books kept by the Trustee, as of the close of business on the Regular Record
Date, irrespective of any transfer of ownership of Certificates subsequent to the Regular Record
Date and prior to such Interest Payment Date, or on a special record date, which shall be fixed by
the Trustee for such purpose, irrespective of any transfer of ownership of Certificates subsequent
to such special record date and prior to the date fixed by the Trustee for the payment of such
interest. Notice of the special record date and of the date fixed for the payment of such interest
shall be given by providing a copy thereof by electronic means or by first class mail postage
prepaid at least ten (10) days prior to the special record date, to the Owner of each Certificate
upon which interest will be paid, determined as of the close of business on the day preceding the
giving of such notice.
Section 2.03 Reissuance of Certificates as Tax-Exempt. The Certificates shall be
initially issued bearing interest at the Taxable Rate, which interest is included in the gross
income of the recipient for federal income tax purposes. On and after the Conversion Date, if
any, the Certificates will be reissued for Federal tax purposes as bearing interest at the Tax-
Exempt Rate, which interest is expected to be excluded from the gross income of the recipient
for federal income tax purposes. The issuance of a Conversion Opinion is a condition precedent
to the occurrence of the Conversion Date. If such condition precedent is not satisfied, there will
be no Conversion Date, the Certificates will continue to bear interest at the Taxable Rate, and the
interest thereon will be included in the gross income of the recipients thereof for federal income
tax purposes. In connection with the conversion of the interest rate on the Certificates, the Town
covenants to (a) execute and timely file an Internal Revenue Service Form 8038-G (or similar
form which may be required by law as of the Conversion Date), (b) execute a Tax Certificate and
any other documents required by Special Counsel in order to provide the Conversion Opinion,
and (c) provide the Purchaser with copies of the foregoing documents as soon as is practicable.
There is no requirement or condition that the Certificate be physically exchanged for any other
certificate in order for the Conversion Date to occur.
Section 2.04 Execution. Each Certificate shall be executed with the manual signature
of a duly authorized representative of the Trustee. It shall not be necessary that the same
authorized representative of the Trustee sign all of the Certificates executed and delivered
hereunder. In case any authorized representative of the Trustee whose signature appears on the
Certificates ceases to be such representative before delivery of the Certificates, such signature
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shall nevertheless be valid and sufficient for all purposes, the same as if such authorized
representative had remained as such authorized representative until delivery.
No Certificate shall be valid or obligatory for any purpose or entitled to any security or
benefit hereunder unless and until executed in the manner prescribed by this Section, and such
execution of any Certificate shall be conclusive evidence that such Certificate has been properly
executed and delivered hereunder.
No person other than an Initial Purchaser or any subsequent Owner shall receive a
Certificate.
Section 2.05 Delivery of Certificates. Upon the execution and delivery of this
Indenture, the Trustee is authorized to execute and deliver the Certificates to the Initial Purchaser
thereof in the aggregate principal amount set forth in Section 2.01 hereof, as provided in this
Section:
(a) Before or upon the delivery by the Trustee of any of the Certificates, there shall
be filed with the Trustee an originally executed counterpart of this Indenture, the Lease, the Site
Lease, and a title insurance commitment or commitments (with a title insurance policy to be
delivered in a timely fashion after the delivery of the Certificates) under which the Trustee’s
leasehold interests in the Leased Property are insured; and
(b) Thereupon, the Trustee shall execute and deliver the Certificates to the Initial
Purchaser, upon payment to the Trustee of the purchase price set forth in any commitment for
purchase or term sheet. Portions of such amounts so received shall be deposited in the Accounts
in the Base Rentals Fund, and the Cost of Execution and Delivery Fund, all as provided in
Article 3 hereof and in the Lease. Notwithstanding anything herein to the contrary, the Trustee is
authorized to execute and transfer or cause to be transferred to the Initial Purchaser in advance of
the date of execution and delivery of the Certificates, Certificates to effect the registration and
delivery thereof to the Owners pending and subject to the delivery of the opinion of Special
Counsel necessary to effect the delivery of the Certificates.
Section 2.06 Mutilated, Lost, Stolen or Destroyed Certificates. In the event that one
or more of the Certificates is mutilated, lost, stolen or destroyed, a new Certificate shall be
executed by the Trustee, of like date, maturity and denomination as that mutilated, lost, stolen or
destroyed; provided that the Trustee shall have received indemnity from the Initial Purchaser or
the Owner of the Certificate, as the case may be, satisfactory to it and provided further, in case of
any mutilated Certificate, that such mutilated Certificate shall first be surrendered to the Trustee,
and in the case of any lost, stolen or destroyed Certificate, that there shall be first furnished to the
Trustee evidence of such loss, theft or destruction satisfactory to the Trustee. In the event that
any such Certificate shall have matured, instead of executing and delivering a duplicate
Certificate, the Trustee may pay the same without surrender thereof. The Trustee may charge the
Initial Purchaser or the Owner of the Certificate, as the case may be, with its reasonable fees and
expenses in connection herewith.
Section 2.07 Registration of Certificates; Persons Treated as Owners; Transfer
and Exchange of Certificates. Books for the registration and for the transfer of Certificates
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shall be kept by the Trustee which is hereby appointed the registrar. Upon surrender for transfer
of any Certificate at the principal corporate trust office of the Trustee or at such other location as
it shall designate, the Trustee shall execute and deliver in the name of the transferee or
transferees a new Certificate or Certificates of the same series, of a like aggregate principal
amount and interest rate and of the same maturity.
Certificates may be exchanged at the principal corporate trust office of the Trustee or at
such other location as it shall designate for an equal aggregate principal amount of Certificates of
the same series, of the same maturity of other Authorized Denominations. The Trustee shall
execute and deliver Certificates which the Owner making the exchange is entitled to receive,
bearing numbers not contemporaneously outstanding.
All Certificates presented for transfer or exchange shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and with guaranty of
signature satisfactory to the Trustee, duly executed by the Owner or by his or her attorney duly
authorized in writing.
The Trustee shall not be required to transfer or exchange any Certificate during the period
of fifteen (15) days next preceding any Interest Payment Date nor to transfer or exchange any
Certificate after the mailing of notice calling such Certificate for redemption has been made as
herein provided, nor during the period of fifteen (15) days next preceding the mailing of such
notice of redemption.
New Certificates delivered upon any transfer or exchange shall evidence the same
obligations as the Certificates surrendered, shall be secured by this Indenture and entitled to all
of the security and benefits hereof to the same extent as the Certificates surrendered. The person
in whose name any Certificate shall be registered shall be deemed and regarded as the absolute
owner thereof for all purposes, and payment of or on account of either principal or interest on
any Certificate shall be made only to or upon the written order of the Owner thereof or his, her or
its legal representative, but such registration may be changed as hereinabove provided. All such
payments shall be valid and effectual to satisfy and discharge such Certificate to the extent of the
sum or sums paid.
The Trustee shall require the payment, by any Owner requesting exchange or transfer of
Certificates, of any reasonable transfer fees, tax, fee or other governmental charge required to be
paid with respect to such exchange or transfer.
Section 2.08 Cancellation of Certificates. Whenever any outstanding Certificates
shall be delivered to the Trustee for cancellation pursuant to this Indenture, upon payment
thereof or for or after replacement pursuant to Sections 2.05 or 2.06 hereof, such Certificates
shall be promptly canceled and destroyed by the Trustee, such Certificates shall be promptly
canceled and destroyed by the Trustee in accordance with customary practices of the Trustee and
applicable record retention requirements.
Section 2.09 Additional Certificates. So long as no Event of Indenture Default, Event
of Nonappropriation or Event of Lease Default has occurred and is continuing and the Lease
Term is in effect, one or more series of Additional Certificates may be executed and delivered
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upon the terms and conditions set forth herein. The principal of any Additional Certificates shall
mature on December 1 and the Interest Payment Dates therefor shall be the same as the Interest
Payment Dates for the Certificates; otherwise the times and amounts of payment of Additional
Certificates shall be as provided in the supplemental ordinance or indenture and amendment to
the Lease entered into in connection therewith.
Additional Certificates may be executed and delivered only upon the prior written
consent of the Initial Purchaser if at such time it is Owner of 100% of the Certificates then
Outstanding, and if it is not such Owner, then Additional Certificates may be executed and
delivered without the consent of or notice to the Owners of Outstanding Certificates, to provide
moneys to pay any one or more of the following:
(a) the costs of acquiring, constructing, improving, installing and equipping any
additional improvements or capital projects of the Town, or a New Facility, or of acquiring a Site
for any New Facility (and costs reasonably related thereto);
(b) the costs of completing the Refunding Project or making, at any time or from time
to time, such substitutions, additions, modifications and improvements for or to the Leased
Property as the Town may deem necessary or desirable, and as in accordance with the provisions
of the Lease; or
(c) for the purpose of refunding or refinancing all or any portion of Outstanding
Certificates.
In such case, the Costs of Execution and Delivery of the Additional Certificates and other costs
reasonably related to the purposes for which Additional Certificates are being executed and
delivered may be included.
Additional Certificates may be executed and delivered only upon there being furnished to
the Trustee:
(a) Originally executed counterparts of a supplemental Indenture and related and
necessary amendments to the Site Lease and the Lease (including any necessary amendment to
the Base Rentals Schedule); and
(b) A commitment or other evidence that the amount of the title insurance policy
delivered in respect of the Certificates will be increased, if necessary, to reflect the amount of the
Additional Certificates and all other Outstanding Certificates (or such lesser amount as shall be
the maximum insurable value of the real property included in the Leased Property); and
(c) A written opinion of Special Counsel to the effect that:
(i) the execution and delivery of Additional Certificates have been duly
authorized and that all conditions precedent to the delivery thereof have been fulfilled;
(ii) the excludability of interest from gross income for federal income tax
purposes on Outstanding Certificates will not be adversely affected by the execution and delivery
of the Additional Certificates being executed and delivered; and
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(iii) the sale, execution and delivery of the Additional Certificates, in and of
themselves, will not constitute an Event of Indenture Default or an Event of Lease Default nor
cause any violation of the covenants or representations herein or in the Lease; and
(d) Written directions from the underwriter or placement agent with respect of the
Additional Certificates, together with written acknowledgment of the Town, to the Trustee to
deliver the Additional Certificates to the purchaser or purchasers therein identified upon payment
to the Trustee of a specified purchase price.
Each Additional Certificate executed and delivered pursuant to this Section shall
evidence a proportionate interest in the rights to receive the Revenues under this Indenture and
shall be ratably secured with all Outstanding Certificates and in respect of all Revenues, and
shall be ranked pari passu with such Outstanding Certificates and with Additional Certificates
that may be executed and delivered in the future, if any.
Notwithstanding any provision in this Section to the contrary, so long as the Initial
Purchaser is the Owner of all Outstanding Certificates, no Additional Certificates shall be issued
without the prior written consent of the Initial Purchaser in its sole and absolute discretion.
Section 2.10 Uniform Commercial Code. Subject to the registration
provisions hereof, the Certificates shall be fully negotiable and shall have all the qualities of
negotiable paper, and the owner or owners thereof shall possess all rights enjoyed by the holders
or owners of investment securities under the provisions of the Uniform Commercial Code-
Investment Securities. The principal of and interest on the Certificates shall be paid, and the
Certificates shall be transferable, free from and without regard to any equities, set-offs or cross-
claims between or among the Town, the Trustee and the original or any intermediate owner of
any Certificates.
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ARTICLE 3
REVENUES AND FUNDS
Section 3.01 Segregation and Disposition of Proceeds of Certificates. The proceeds
of the Certificates shall be accounted for as follows:
(a) $[______] of the proceeds of the Certificates to be deposited into the Escrow
Account to be applied to the Refunding Project; and
(b) $[_______] from the proceeds of the Certificates to the Costs of Execution and
Delivery Fund to pay the Costs of Execution and Delivery of the Certificates.
Section 3.02 Application of Revenues and Other Moneys.
(a) All Base Rentals payable under the Lease and other Revenues shall be paid
directly to the Trustee. If the Trustee receives any other payments on account of the Lease, the
Trustee shall immediately deposit the same as provided below.
(b) Except for Net Proceeds to be applied pursuant to Section 9.02 of the Lease, the
Trustee shall deposit all Revenues and any other payments received in respect of the Lease,
immediately upon receipt thereof, to the Base Rentals Fund in an amount required to cause the
aggregate amount on deposit therein to equal the amount then required to make the principal and
interest payments due on the Certificates on the next Interest Payment Date. In the event that the
Trustee receives Prepayments under the Lease, the Trustee shall apply such Prepayments to the
Optional Redemption of the Certificates or portions thereof in accordance with Section 4.01
hereof.
Section 3.03 Base Rentals Fund. A special fund is hereby created and established
with the Trustee denominated the “Town of Avon, Colorado, 2020 Lease Purchase Agreement
Base Rentals Fund” which shall be used for the deposit of all Revenues, upon receipt thereof by
the Trustee, except for Net Proceeds to be applied pursuant to Section 9.02 of the Lease.
Moneys in the Base Rentals Fund shall be used solely for the payment of the principal of and
interest on the Certificates whether on an Interest Payment Date, at maturity or upon prior
redemption, except as provided in Section 3.05 hereof.
The Base Rentals Fund shall be in the custody of the Trustee. Base Rental payments are
due and payable to the Trustee on or before each May 15 and November 15 annually. The
Trustee shall withdraw sufficient funds from the Base Rentals Fund to pay the principal of and
interest on the Certificates as the same become due and payable whether on an Interest Payment
Date, at maturity or upon prior redemption, which responsibility, to the extent of the moneys
therein, the Trustee hereby accepts.
Any moneys held in the Base Rentals Fund shall be invested by the Trustee in accordance
with Article 5 hereof.
Section 3.04 Escrow Account. Pursuant to the Escrow Agreement, a special fund
has been created and established with the Trustee, as escrow agent, to be designated “Town of
Avon, Colorado, 2020 Certificates of Participation, Escrow Account” (the “Escrow Account”).
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A portion of the proceeds of the Certificates shall be deposited in the Escrow Account in
accordance with the provisions of the Escrow Agreement and shall be used to implement the
Refunding Project. Moneys held in the Escrow Account shall be invested and disbursed in
accordance with the provisions of the Escrow Agreement
Section 3.05 Rebate Fund. A special fund is hereby created and established to be held
by the Trustee, and to be designated the “Town of Avon, Colorado, 2020 Lease Purchase
Agreement, Rebate Fund” (the “Rebate Fund”). To the extent necessary to comply with the
provisions of the Tax Certificate, there shall be deposited into the Rebate Fund investment
income on moneys in any fund created hereunder (except defeasance escrows). In addition to the
deposit of investment income as provided herein, there shall be deposited into the Rebate Fund
moneys received from the Town as Additional Rentals for rebate payments pursuant to the
Lease; moneys transferred to the Rebate Fund from any other fund created hereunder pursuant to
the provisions of this Section 3.05; and all other moneys received by the Trustee when
accompanied by directions not inconsistent with the Lease or this Indenture that such moneys are
to be paid into an account of the Rebate Fund. The Town will cause (or direct the Trustee to
cause) amounts on deposit in the Rebate Fund to be forwarded to the United States Treasury at
the address and times provided in the Tax Certificate, and in the amounts calculated to ensure
that the Town’s rebate obligations are met, in accordance with the Town’s tax covenants in
Section 10.5 of the Lease. Amounts on deposit in the Rebate Fund shall not be subject to the lien
of this Indenture to the extent that such amounts are required to be paid to the United States
Treasury.
If, at any time after the Trustee receives instructions by the Town to make any
payments from the Rebate Fund, the Trustee determines that the moneys on deposit in an account
of the Rebate Fund are insufficient for the purposes thereof, and if the Trustee does not receive
Additional Rentals or cannot transfer investment income so as to make the amount on deposit in
the appropriate account in the Rebate Fund sufficient for its purpose, the Trustee may transfer
moneys to an account in the Rebate Fund from the Base Rentals Fund. Any moneys so advanced
from the Base Rentals Fund shall be included as an Additional Rental for the current Fiscal Year
pursuant to the Lease, and shall be repaid to the fund from which advanced upon payment to the
Trustee of such Additional Rentals. Upon receipt by the Trustee of an opinion of Special
Counsel to the effect that the amount in an account of the Rebate Fund is in excess of the amount
required to be therein pursuant to the provisions of the Tax Certificate, such excess shall be
transferred to the Base Rentals Fund.
The Trustee shall not be responsible for calculating rebate amounts or for the
adequacy or correctness of any rebate report. The Town may, at its own expense, retain an
independent firm of professionals in such area to calculate such rebate amounts.
Notwithstanding the foregoing, in the event that the Lease has been terminated or
the Town has failed to comply with Section 10.5 thereof so as to make the amount on deposit in
the appropriate account in Rebate Fund sufficient for its purpose, the Trustee shall make
transfers of investment income or of moneys from the Base Rentals Fund in such combination as
the Trustee shall determine to be in the best interests of the Certificate Owners.
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Section 3.06 Costs of Execution and Delivery Fund. A special fund is hereby created
and established with the Trustee and denominated the “Costs of Execution and Delivery Fund.”
Upon the delivery of the Certificates there shall be deposited into the Costs of Execution and
Delivery Fund from the proceeds of the Certificates the amounts directed by Section 3.01(c)
hereof. Payments from the Costs of Execution and Delivery Fund shall be made by the Trustee
upon receipt of a statement or a bill for the provision of Costs of Execution and Delivery of the
Certificates approved in writing by the Town Representative and (a) stating the payee, the
amount to be paid and the purpose of the payment and (b) certifying that the amount to be paid is
due and payable, has not been the subject of any previous requisition and is a proper charge
against the Costs of Execution and Delivery Fund. The Trustee may conclusively rely on
requisitions submitted in accordance with this Section 3.06 as complete authorization for the
disbursements made pursuant thereto and shall not be responsible for any representations or
certifications made therein.
Any moneys held in the Costs of Execution and Delivery Fund shall be invested by the
Trustee in accordance with Article 5 hereof.
The Trustee shall transfer all moneys remaining in the Costs of Execution and Delivery
Fund to the Town upon the final payment of all Costs of Execution and Delivery, as certified in
writing by the Town Representative. Any such remaining amounts so transferred to the Town
shall be deposited by the Town in the Base Rentals Fund or applied by the Town to pay costs of
the Refunding Project.
Section 3.07 Reserved.
Section 3.08 Moneys to be Held in Trust. The ownership of the Base Rentals Fund,
the Costs of Execution and Delivery Fund, and all accounts within such Funds and any other
fund or account created hereunder (except defeasance escrow account) shall be held in trust by
the Trustee for the benefit of the Owners of the Certificates; provided that moneys in the Rebate
Fund shall be used only for the specific purpose provided in Section 3.05 hereof, and the Escrow
Account shall be used only for implementing the Refunding Project as provided in the Escrow
Agreement.
Section 3.09 Nonpresentment of Certificates. Any moneys deposited with the
Trustee pursuant to the terms of this Indenture to be used for the payment of principal of,
premium, if any, or interest on any of the Certificates and remaining unclaimed by the Owners of
such Certificates for a period of three (3) years after the final due date of any Certificate, whether
the final date of maturity or the final redemption date, shall, if the Town shall not at the time, to
the knowledge of the Trustee, be in default with respect to any of the terms and conditions
contained in this Indenture, in the Certificates or under the Lease, be paid to the Town and such
Owners shall thereafter look only to the Town for payment and then only (a) to the extent of the
amounts so received by the Town from the Trustee without interest thereon, (b) subject to the
defense of any applicable statute of limitations and (c) subject to the Town’s Appropriation of
such payment. After payment by the Trustee of all of the foregoing, if any moneys are then
remaining under this Indenture, the Trustee shall pay such moneys to the Town as an
overpayment of Base Rentals.
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Section 3.10 Repayment to the Town from the Trustee. After payment in full of the
Certificates, the interest thereon, any premium thereon, the fees, charges and expenses of the
Trustee, any amount required to be deposited to the Rebate Fund, and all other amounts required
to be paid hereunder, any amounts remaining in the Base Rentals Fund, the Costs of Execution
and Delivery Fund, or otherwise held by the Trustee pursuant hereto (but excluding the Rebate
Fund and any defeasance escrow accounts) shall be paid to the Town upon the expiration or
sooner termination of the Lease Term as a return of an overpayment of Base Rentals. After
payment of all amounts due and owing the federal government held in the Rebate Fund, if any,
any excess amounts in the Rebate Fund shall be paid to the Town.
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ARTICLE 4
REDEMPTION OF CERTIFICATES
Section 4.01 Optional Redemption. The Certificates shall be subject to redemption
prior to maturity at the option of the Town, in whole or in part, in integral multiples of $5,000,
and if in part in such order of maturities as the Town shall determine and by lot within a
maturity, on [____], and on any interest payment date thereafter, at a redemption price equal to
the principal amount of the Certificates so redeemed plus accrued interest to the redemption date
without a prior redemption premium.
In the case of a Prepayment in part of Base Rentals under the Lease, the Trustee shall
confirm that the revised Base Rentals Schedule to be provided by the Town Representative
pursuant to Section 6.2(b) of the Lease sets forth Principal Portions and Interest Portions of Base
Rentals that are equal to the principal and interest due on the Certificates that remain
Outstanding after such Optional Redemption. For such confirmation, the Trustee may rely on a
certification of the Town Representative or other person as provided in Section 8.07 hereof.
Section 4.02 Mandatory Sinking Fund Redemption.
(a) The Certificates are subject to mandatory sinking fund redemption at a price equal
to the principal amount thereof plus accrued interest to the redemption date.
(b) Town shall deposit in the Base Rentals Fund on or before December 1, 20[__] and
on or before each December 1 thereafter through and including December 1, 20[__], a sum
which together with other moneys available in the Base Rentals Fund is sufficient to redeem
(after credit as hereinafter provided), on the following dates, the following principal amounts of
the 2020 Certificate:
December 1 of
the Year
Principal
Amount
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
___________
*Maturity.
(c) On or before the 30th day prior to each such sinking fund payment date, the
Trustee shall proceed to call the Term Certificates indicated above (or any Term Certificate or
Certificates issued to replace such Term Certificates) for redemption from the sinking fund on
the next December 1, and give notice of such call without other instruction or notice from the
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Town. The amount of each sinking fund installment may be reduced by the principal amount of
any Term Certificates of the maturity and interest rate which are subject to sinking fund
redemption on such date and which prior to such date have been redeemed (otherwise than
through the operation of the sinking fund) or otherwise canceled and not theretofore applied as a
credit against a sinking fund installment. Such reductions, if any, shall be applied in such year or
years as may be determined by the Town.
(d) Notwithstanding any provisions to the contrary contained herein, so long as the
Initial Purchaser is the sole owner of the Certificates, the Initial Purchaser shall not be required
to surrender the Certificates to the Trustee to receive payment in connection with a mandatory
sinking fund redemption, but shall be required to surrender the Certificates only on the
applicable final maturity date thereof to receive payment of the applicable final principal
payment thereof.
Section 4.03 Extraordinary Mandatory Redemption. If the Lease is terminated by
reason of the occurrence of:
(a) an Event of Nonappropriation, or
(b) an Event of Lease Default, or
(c) in the event that (1) the Leased Property is damaged or destroyed in whole or in part
by fire or other casualty, or (2) title to, or the temporary or permanent use of, the Leased
Property has been taken by eminent domain by any governmental body or (3) breach of warranty
or any material defect with respect to the Leased Property becomes apparent or (4) title to or the
use of all or any part of the Leased Property is lost by reason of a defect in title thereto, and the
Net Proceeds of any insurance, performance bond or condemnation award, or Net Proceeds
received as a consequence of defaults under contracts relating to the Leased Property, made
available by reason of such occurrences, shall be insufficient to pay in full, the cost of repairing
or replacing the Leased Property, and the Town does not appropriate sufficient funds for such
purpose or cause the Lease to be amended in order that Additional Certificates may be executed
and delivered pursuant to this Indenture for such purpose, then the Certificates shall be required
to be called for redemption. If called for redemption, as described herein, the Certificates are to
be redeemed in whole on such date or dates as the Trustee may determine, for a redemption price
equal to the principal amount thereof, plus accrued interest to the redemption date (subject to the
availability of funds described below).
If the Net Proceeds, including the Net Proceeds from the exercise of any Lease Remedy
under the Lease, otherwise received and other moneys then available under this Indenture are
insufficient to pay in full the principal of and accrued interest on all Outstanding Certificates, the
Trustee may, with the consent of the Initial Purchaser, or at the request of the Owners of a
majority in aggregate principal amount of the Certificates Outstanding, and upon indemnification
as provided in Section 8.01(d) of this Indenture, without any further demand or notice, shall,
exercise all or any combination of Lease Remedies as provided in the Lease and the Certificates
shall be redeemed by the Trustee from the Net Proceeds resulting from the exercise of such
Lease Remedies and all other moneys, if any, then on hand and being held by the Trustee for the
Owners of the Certificates.
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If the Net Proceeds resulting from the exercise of such Lease Remedies and other moneys
are insufficient to redeem the Certificates at 100% of the principal amount thereof plus interest
accrued to the redemption date, then such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys shall be allocated proportionately among the Certificates, according
to the principal amount thereof Outstanding. In the event that such Net Proceeds resulting from
the exercise of such Lease Remedies and other moneys are in excess of the amount required to
redeem the Certificates at 100% of the principal amount thereof plus interest accrued to the
redemption date, then such excess moneys shall be paid to the Town as an overpayment of the
Purchase Option Price. Prior to any distribution of the Net Proceeds resulting from the exercise
of any of such remedies, the Trustee shall be entitled to payment of its reasonable and customary
fees for all services rendered in connection with such disposition, as well as reimbursement for
all reasonable costs and expenses, including attorneys’ fees, incurred thereby, from proceeds
resulting from the exercise of such Lease Remedies and other moneys.
IF THE CERTIFICATES ARE REDEEMED PURSUANT TO THIS SECTION 4.03
FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT THEREOF
PLUS INTEREST ACCRUED TO THE REDEMPTION DATE, SUCH PARTIAL PAYMENT
SHALL BE DEEMED TO CONSTITUTE A REDEMPTION IN FULL OF THE RELATED
CERTIFICATES, AND UPON SUCH A PARTIAL PAYMENT NO OWNER OF SUCH
CERTIFICATES SHALL HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST THE
TRUSTEE OR THE TOWN.
Section 4.04 Partial Redemption. The Certificates shall be redeemed only in integral
multiples of $5,000. The Trustee shall treat any Certificate of denomination greater than $5,000
as representing that number of separate Certificates each of the denomination of $5,000 as can be
obtained by dividing the actual principal amount of such Certificate by $5,000.
Upon surrender of any Certificate for redemption in part, the Trustee shall execute and
deliver to the Owner thereof, at no expense of the Owner, a new Certificate or Certificates of
Authorized Denominations in an aggregate principal amount equal to the unredeemed portion of
the Certificates so surrendered.
Section 4.05 Notice of Redemption. Whenever Certificates are to be redeemed under
any provision of this Indenture, the Trustee shall, not less than thirty (30) and not more than sixty
(60) days prior to the redemption date (except for Extraordinary Mandatory Redemption under
Section 4.03, which notice shall be immediate), mail notice of redemption to all Owners of all
Certificates to be redeemed at their registered addresses, by first class mail, postage prepaid, or
in the event that the Certificates to be redeemed are registered in the name of the Initial
Purchaser, such notice may, in the alternative, be given by electronic means in accordance with
the requirements of the Initial Purchaser. In addition, the Trustee shall at all reasonable times
make available to the Town and any Certificate Owner, including the Initial Purchaser, if
applicable, information as to Certificates which have been redeemed or called for redemption.
Any notice of redemption shall:
(1) identify the Certificates to be redeemed;
(2) specify the redemption date and the redemption price;
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(3) in the event the redemption is occurring under Section 4.01 hereof,
state that the Town has given notice of its intent to exercise its option to purchase
or prepay Base Rentals under the Lease;
(4) state that such redemption is subject to the deposit of the funds
related to such option by the Town on or before the stated redemption date; and
(5) state that on the redemption date the Certificates called for
redemption will be payable at the principal corporate trust office of the Trustee
and that from that date interest will cease to accrue.
Any notice of redemption may contain a statement that the redemption is conditioned
upon the receipt by the Trustee of funds on or before the date fixed for redemption sufficient to
pay the redemption price of the Certificates so called for redemption, and that if such funds are
not available, such redemption shall be canceled by written notice to the owners of the
Certificates called for redemption in the same manner as the original redemption notice was
given.
Section 4.06 Redemption Payments. On or prior to the date fixed for
redemption, funds shall be deposited with the Trustee to pay the Certificates called for
redemption, together with accrued interest thereon to the redemption date, and any required
premium. Upon the giving of notice and the deposit of such funds as may be available for
redemption pursuant to this Indenture (which, in certain cases as set forth above may be less than
the full principal amount of the Outstanding Certificates and accrued interest thereon to the
redemption date), interest on the Certificates or portions thereof thus called shall no longer
accrue after the date fixed for redemption. Payments in full redemption shall be accompanied by
a written designation prepared by the Trustee stating the portions of the payment representing
principal, interest, and premium, if any.
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ARTICLE 5
INVESTMENTS
Section 5.01 Investment of Moneys.The Trustee shall be entitled to assume
that any investment, which at the time of purchase is a Permitted Investment, remains a
Permitted Investment absent a receipt of written notice or information to the contrary. All
moneys held as part of the Base Rentals Fund, the Rebate Fund, the Costs of Execution and
Delivery Fund, or any other fund or account created hereunder (other than any defeasance
escrow accounts) shall be deposited or invested and reinvested by the Trustee, at the written
direction of the Town, in Permitted Investments; provided, however, that the Trustee shall make
no deposits or investments of any fund or account created hereunder which shall interfere with or
prevent withdrawals for the purpose for which the moneys so deposited or invested were placed
in trust hereunder or for payment of the Certificates at or before maturity or interest thereon as
required hereunder. The Trustee may make any and all such deposits or investments through its
own investment department or the investment department of any bank or trust company under
common control with the Trustee. Except as otherwise provided in Sections 3.04 and 3.05
hereof, deposits or investments shall at all times be a part of the fund or account from which the
moneys used to acquire such deposits or investments shall have come, and all income and profits
on such deposits or investments shall be credited to, and losses thereon shall be charged against,
such fund or account. Any interest or other gain from any fund or account created hereunder
(except defeasance escrows) shall be deposited to the Rebate Fund to the extent required and
permitted pursuant to Section 3.05 hereof. The Trustee shall sell and reduce to cash a sufficient
amount of such deposits or investments whenever the cash balance in the Base Rentals Fund is
insufficient to pay the principal of and interest on the Certificates when due, or whenever the
cash balance in any fund or account created hereunder is insufficient to satisfy the purposes of
such fund or account.
The Trustee hereby agrees to secure and retain the documentation with respect to
investments of moneys in the funds and accounts created under this Indenture as required by and
as described in the Tax Certificate.
The Trustee may rely upon the Town’s written direction as to both the suitability and the
legality of the directed investments, and shall have no liability or responsibility for any loss or
for failure to maximize earnings resulting from any investment made in accordance with the
provisions of this Article V.
The Trustee may transfer investments from any Fund or Account to any other Fund or
Account in lieu of cash when a transfer is required or permitted by the provisions of this
Indenture.
If the Trustee is not provided written directions concerning investment of moneys held in
the Funds, the Trustee may invest in a money market fund available to the Trustee, provided
such investment matures or are subject to redemption prior to the date such funds will be needed.
Unless otherwise confirmed or directed in writing, an account statement delivered periodically
by the Trustee to the Town shall confirm that the investment transactions identified therein
accurately reflect the investment directions of the Town, unless the Town notifies the Trustee in
writing to the contrary within thirty (30) days of the date of delivery of such statement.
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The Trustee may make any and all such investments through its trust department, and it is
specifically provided herein that the Trustee may purchase or invest in shares of any investment
company provided that such investments are Permitted Investments at the time of such
investment and that such investments: (i) is registered under the Investment Company Act of
1940, as amended (including both corporations and Massachusetts business trusts, and including
companies for which the Trustee may provide advisory, administrative, custodial or other
services for compensation); (ii) invests substantially all of its assets in short term high quality
money market instruments, limited to obligations issued or guaranteed by the United States, or
repurchase agreements backed by such obligations; and (iii) maintains a constant asset value per
share.
The Trustee is specifically authorized to implement its automated cash investments
system to assure that cash on hand is invested and to charge reasonable cash management fees,
which may be deducted from income earned on investments.
Section 5.02 Method of Valuation and Frequency of Valuation. In
computing the amount in any fund or account (except defeasance escrows), Permitted
Investments shall be valued at the market price, exclusive of accrued interest. With respect to all
funds and accounts (except defeasance escrows, and except as otherwise provided in the Tax
Certificate with respect to the Rebate Fund), valuation shall occur as of December 31 of each
year.
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ARTICLE 6
DEFEASANCE AND DISCHARGE
Section 6.01 Defeasance and Discharge.
(a) When the principal or redemption price (as the case may be) of, and interest on,
all the Certificates executed and delivered hereunder have been paid or provision has been made
for payment of the same (or, in the case of redemption of the Certificates pursuant to Section
4.03 of this Indenture, if full or partial payment of the Certificates and interest thereon is made as
provided in Section 4.03 of this Indenture), together with all other sums payable hereunder
relating to the Certificates (including the fees and expenses of the Trustee), then the right, title
and interest of the Trustee in and to the Trust Estate and all covenants, agreements and other
obligations of the Town to the Trustee and to the Owners shall thereupon cease, terminate and
become void and be discharged and satisfied. In such event, the Trustee shall (1) release the Site
Lease and transfer and convey the Trustee’s leasehold interest in the Leased Property to the
Town as provided by Article 11 of the Lease, (2) release the Lease and this Indenture, (3)
execute such documents to evidence such releases as may be reasonably required by the Town,
and (4) turn over to the Town all balances then held by the Trustee in the Funds or Accounts
hereunder except for amounts held in any defeasance escrow accounts. If payment or provision
therefor is made with respect to less than all of the Certificates, the particular Certificates (or
portion thereof) for which provision for payment shall have been considered made shall be
selected by the Town.
(b) Provision for the payment of all or a portion of the Certificates shall be deemed to
have been made when the Trustee holds in the Base Rentals Fund, or there is on deposit in a
separate escrow account or trust account held by a trust bank or escrow agent, either moneys in
an amount which shall be sufficient, and/or Federal Securities, the principal of and the interest on
which when due, and without any reinvestment thereof, will provide moneys which, together
with the moneys, if any, concurrently deposited in trust, shall be sufficient to pay when due the
principal of, premium, if any, and interest due and to become due on said Certificates on and
prior to the redemption date or maturity date thereof, as the case may be. Prior to any discharge
of this Indenture pursuant to this Section or the defeasance of any Certificates pursuant to this
Section becoming effective, there shall have been delivered to the Trustee a report of an
independent firm of nationally recognized certified public accountants verifying the sufficiency
of the escrow established to pay the applicable Certificates in full on the maturity or redemption
date thereof unless fully funded with cash.
(c) Neither the Federal Securities nor the moneys deposited in the Base Rentals Fund
or separate escrow account or trust account pursuant to this Section shall be withdrawn or used
for any purpose other than, and shall be segregated and held in trust for, the payment of the
principal of, premium, if any, and interest on the Certificates or portions thereof; provided,
however, that other Federal Securities and moneys may be substituted for the Federal Securities
and moneys so deposited prior to their use for such purpose.
(d) Whenever moneys or Federal Securities shall be deposited with the Trustee or a
separate escrow agent for the payment or redemption of any Certificates more than forty-five
(45) days prior to the date that such Certificates are to mature or be redeemed, the Trustee shall
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mail a notice stating that such moneys or Federal Securities have been deposited and identifying
the Certificates for the payment of which such moneys or Federal Securities are being held, to all
Owners of Certificates for the payment of which such moneys or Federal Securities are being
held, or if such Certificates are registered in the name of the Initial Purchaser, such notice may
be sent, in the alternative, by electronic means in accordance with the regulations of the with
written instructions received by the Initial Purchaser.
(e) At such time as any Certificate shall be deemed paid as provided in (b) above,
such Certificate shall no longer be secured by or entitled to the benefits of this Indenture, the
Lease or the Site Lease, except for the purpose of exchange and transfer and any payment from
such cash or Federal Securities deposited with the Trustee.
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ARTICLE 7
EVENTS OF INDENTURE DEFAULT AND REMEDIES
Section 7.01 Events of Indenture Default Defined. Each of the following shall be an
Event of Indenture Default:
(a) Failure to pay the principal of or premium, if any, on any Certificate when the
same shall become due and payable, whether at the stated maturity thereof or upon proceedings
for redemption;
(b) Failure to pay any installment of interest on any Certificate when the same shall
become due and payable;
(c) the occurrence of an Event of Nonappropriation; or
(d) the occurrence of an Event of Lease Default.
Upon the occurrence of any Event of Indenture Default of which the Trustee is required
to take notice or receive notice pursuant to Section 8.05, the Trustee shall give notice thereof to
the Owners of the Certificates. The Trustee shall waive any Event of Nonappropriation which is
cured by the Town within thirty (30) days of the receipt of notice by the Trustee as provided by
Section 6.4(b) of the Lease, by a duly effected Appropriation to pay all Base Rentals and
sufficient amounts to pay reasonably estimated Additional Rentals coming due for such Renewal
Term. The Trustee may waive any Event of Nonappropriation which is cured by the Town
within a reasonable time with the procedure described in the preceding sentence.
Section 7.02 Remedies If any Event of Indenture Default occurs and is continuing, the
Trustee may, with the consent of the Initial Purchaser, or shall at the request of the Owners of a
majority in aggregate principal amount of the Certificates then Outstanding and upon
indemnification as provided in Section 8.01(d) hereof, without any further demand or notice,
enforce for the benefit of the Owners of the Certificates each and every right of the Trustee as the
lessee under the Site Lease and the lessor under the Lease. In exercising such rights of the
Trustee and the rights given the Trustee under this Article 7 and Article 8, the Trustee may, with
the consent of the Initial Purchaser, or shall at the request of the Owners of a majority in
aggregate principal amount of the Certificates then Outstanding and upon indemnification as
provided in Section 8.01(d) hereof, take such action as, in the judgment of the Trustee, would
best serve the interests of the Owners of the Certificates, including calling the Certificates for
redemption prior to their maturity in the manner and subject to the provisions of Article 4 hereof
and exercising the Lease Remedies provided in the Lease, provided however that such action
shall not include consequential or punitive damages against the Town.
Section 7.03 Legal Proceedings by Trustee. If any Event of Indenture Default has
occurred and is continuing, the Trustee in its discretion may, with the consent of the Initial
Purchaser, and upon the written request of the Owners of a majority in aggregate principal
amount of all Outstanding Certificates and receipt of indemnity to its satisfaction, shall, in its
capacity as Trustee hereunder:
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(a) By mandamus, or other suit, action or proceeding at law or in equity, enforce all
rights of the Owners of the Certificates, including enforcing any rights of the Trustee in respect
of the Trustee’s leasehold interests in the Leased Property including its rights as lessor under the
Lease and as lessee under the Site Lease and its rights under this Indenture and to enforce the
provisions of this Indenture and any collateral rights hereunder for the benefit of the Owners of
the Certificates; or
(b) By action or suit in equity enjoin any acts or things which may be unlawful or in
violation of the rights of the Owners of the Certificates; or
(c) Take any other action at law or in equity that may appear necessary or desirable to
enforce the rights of the Owners of the Certificates.
Notwithstanding the foregoing or any other provisions to the contrary in the Lease or this
Indenture, so long as the Initial Purchaser is the sole Owner of the Certificates, the Trustee shall
not take any remedial action under the Lease or this Indenture, including without limitation this
Section 7.03, without the prior written consent and direction of the Initial Purchaser. Before
taking any such action as directed by the Initial Purchaser, the Trustee shall be entitled to the
indemnification provided in this Indenture.
Section 7.04 Discontinuance of Proceedings by Trustee. If any proceeding
commenced by the Trustee on account of any Event of Indenture Default is discontinued or is
determined adversely to the Trustee, then the Owners of the Certificates shall be restored to their
former positions and rights hereunder as though no such proceeding had been commenced.
Section 7.05 Owners of Certificates May Direct Proceedings. The Owners of a
majority in aggregate principal amount of Outstanding Certificates shall have the right, after
furnishing indemnity satisfactory to the Trustee, to direct the method and place of conducting all
remedial proceedings by the Trustee hereunder, provided that such direction shall not be in
conflict with any rule of law or with this Indenture or unduly prejudice the rights of minority
Owners of the Certificates.
Section 7.06 Limitations on Actions by Owners of Certificates. No Owner of the
Certificates shall have any right to pursue any remedy hereunder unless:
(a) the Trustee shall have been given written notice of a default pursuant to Section
8.05, and such default becomes an Event of Indenture Default;
(b) the Owners of at least a majority in aggregate principal amount of all Outstanding
Certificates shall have requested the Trustee, in writing, to exercise the powers hereinabove
granted to or pursue such remedy in its or their name or names;
(c) the Trustee shall have been offered indemnity satisfactory to it as provided in
Section 8.01(d) hereof; and
(d) the Trustee shall have failed to comply with such request within a reasonable
time.
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Notwithstanding the foregoing provisions of this Section or any other provision of this
Indenture, the obligation of the Trustee shall be absolute and unconditional to pay hereunder, but
solely from the Revenues pledged under this Indenture, the principal of, premium, if any, and
interest on the Certificates to the respective Owners thereof on the respective due dates thereof,
and nothing herein shall affect or impair the right of action, which is absolute and unconditional,
of such Owners to enforce such payment.
Section 7.07 Trustee May Enforce Rights Without Possession of Certificates. All
rights under this Indenture and the Certificates may be enforced by the Trustee without the
possession of any Certificates or the production thereof at the trial or other proceedings relative
thereto, and any proceeding instituted by the Trustee shall be brought in its name for the ratable
benefit of the Owners of the Certificates.
Section 7.08 Remedies Not Exclusive. Subject to any express limitations contained
herein, no remedy herein conferred is intended to be exclusive of any other remedy or remedies,
and each remedy is in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute.
Section 7.09 Delays and Omissions Not to Impair Rights. No delays or omissions in
respect of exercising any right or power accruing upon any default shall impair such right or
power or be a waiver of such default, and every remedy given by this Article 7 may be exercised
from time to time and as often as may be deemed expedient.
Section 7.10 Application of Moneys in Event of Indenture Default. Any moneys
received, collected or held by the Trustee following an Indenture Event of Default and any other
moneys held as part of the Trust Estate (except for moneys held in the Rebate Fund, the Escrow
Account or any other defeasance escrow account) shall be applied in the following order:
(a) To the payment of the reasonable costs of the Trustee, including, but not limited
to, its Counsel fees, and disbursements of the Trustee, and the payment of its reasonable
compensation, including any amounts remaining unpaid;
(b) To the payment of interest then owing on the Certificates, and in case such
moneys shall be insufficient to pay the same in full, then to the payment of interest ratably,
without preference or priority of one Certificate over another or of any installment of interest
over any other installment of interest; and
(c) To the payment of principal or redemption price (as the case may be) then owing
on the Outstanding Certificates, and in case such moneys shall be insufficient to pay the same in
full, then to the payment of principal or redemption price ratably, without preference or priority
of one Certificate over another.
The surplus, if any, shall be paid to the Town.
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ARTICLE 8
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
(a) The Trustee hereby accepts the provisions of the Site Lease, the Lease and this
Indenture and accepts the trusts imposed upon it by this Indenture and agrees to perform said
trusts, but only upon and subject to the express terms and conditions set forth in the Site Lease,
the Lease and this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(b) The Trustee hereby covenants for the benefit of the Owners of the Certificates
that the Trustee will observe and comply with its obligations under the Site Lease, the Lease and
this Indenture.
(c) The Trustee shall at all times, to the extent permitted by law, defend, preserve and
protect its interest in the Leased Property and the other property or property rights included in the
Trust Estate and all the rights of the Owners under this Indenture against all claims and demands
of all persons whomsoever.
(d) The Trustee, prior to the occurrence of an Event of Indenture Default which may
have occurred, undertakes to perform such duties and only such duties as are specifically set
forth in the Lease and in this Indenture. If an Event of Indenture Default has occurred (which
has not been cured or waived), the Trustee shall exercise such of the rights and power vested in it
by the Lease and this Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in conducting such person’s
affairs in exercising any rights or remedies or performing any of its duties hereunder. Before
taking any action hereunder the Trustee may require that satisfactory indemnity be furnished to it
by the Certificate Owners for the reimbursement of all costs and expenses which it may incur
and to protect it against all liability, including, but not limited to, any liability arising directly or
indirectly under any federal, state or local statute, rule, law or resolution related to the protection
of the environment or hazardous substances, except liability which may result from its
negligence or willful misconduct, by reason of any action so taken.
Section 8.02 Liability of Trustee; Trustee’s Use of Agents.
(a) The Trustee shall be liable only for its own negligence or willful misconduct.
However, the Trustee shall not be liable for any error of judgment made in good faith, provided
the Trustee was not negligent in ascertaining the pertinent facts.
(b) The Trustee may exercise any powers under this Indenture and perform any duties
required of it through attorneys, agents, officers or employees, and shall be entitled to the advice
or opinion of Counsel concerning all matters involving the Trustee’s duties hereunder, and may
in all cases pay such reasonable compensation to all such attorneys, agents, receivers, and
employees as may reasonably be employed in connection with the trusts hereof. The Trustee
may rely and act upon the opinion or advice of Counsel engaged by the Trustee in the exercise of
reasonable care without liability for any loss or damage resulting from any action or omission
taken in good faith reliance upon that opinion or advice.
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(c) The permissive right of the Trustee to do things enumerated in this Indenture shall
not be construed as a duty and the Trustee shall not be answerable for other than its negligence or
willful misconduct, and shall not be answerable for any negligent act of its attorneys, agents or
receivers which have been selected by the Trustee with due care.
(d) The Trustee shall not be personally liable for any debts contracted or for damages
to persons or to personal property injured or damaged, or for salaries or nonfulfillment of
contracts during any period in which it may be in possession of or managing the Leased
Property.
(e) The Trustee shall not be liable for actions taken at the direction of Owners
pursuant to the provisions of Article 7.
(f) Any person hired by the Trustee to enforce Lease Remedies shall be considered
the Trustee’s agent for the purposes of this Section.
(g) The Trustee shall not be responsible for any recital herein or in the Certificates
(except in respect to the execution of the Certificates on behalf of the Trustee), or for the
recording or rerecording, filing or refiling of the Site Lease, the Lease or this Indenture or of any
supplements thereto or hereto or any financing statement (other than continuation statements) in
connection therewith, or for insuring the project, for collecting any insurance moneys, or for the
sufficiency of the security for the Certificates issued hereunder or intended to be secured hereby,
or for the value of or title to the Leased Property, and the Trustee shall not be bound to ascertain
or inquire as to the performance or observance of any covenants, conditions or agreements on the
part of the Town, except as provided herein; but the Trustee may require of the Town full
information and advice as to the performance of the covenants, conditions and agreements
aforesaid. The Trustee shall have no obligation to perform any of the duties of the Town under
the Site Lease or the Lease; and the Trustee shall not be responsible or liable for any loss
suffered in connection with any investment of funds made by it in accordance with this
Indenture.
(h) The Trustee makes no representations as to the value or condition of the Trust
Estate or any part thereof (except for funds and investments held by the Trustee), or the validity
or sufficiency of this Indenture or of the Certificates. The Trustee shall not be accountable for
the use of any Certificates executed and delivered to the Initial Purchaser hereunder. The
Trustee shall not be accountable for the use or application of any Certificates or the proceeds
thereof or of any money paid to or upon the order of the Town under any provisions of this
Indenture or the Lease.
(i) As to the existence or nonexistence of any fact or as to the sufficiency or validity
of any instrument, paper or proceeding, the Trustee shall be entitled to rely upon a certificate
signed on behalf of the Town by the Town Representative or such other person as may be
designated for such purpose by ordinance or resolution of the Council, as sufficient evidence of
the facts therein contained, and before the occurrence of a default of which the Trustee has been
notified as provided in Section 8.05 or of which by said subsection it is deemed to have been
notified, the Trustee may rely upon a similar certificate to the effect that any particular dealing,
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transaction, or action is necessary or expedient, but may at its discretion secure such further
evidence deemed necessary or advisable, but shall in no case be bound to secure the same.
(j) All moneys received by the Trustee shall, until used or applied or invested as
herein provided, be held in trust in the manner and for the purposes for which they were received
but need not be segregated from other funds except to the extent required by this Indenture or
law. The Trustee shall not be under any liability for interest on any moneys received hereunder
except that the Trustee is responsible for investing moneys in funds held hereunder in
compliance with the written investment direction of the Town.
(k) The Trustee shall not be required to give any bond or surety in respect of the
execution of the said trusts and powers or otherwise in respect of the premises.
(l) Notwithstanding anything in this Indenture contained, the Trustee shall have the
right, but shall not be required, to demand in respect of the execution and delivery of any
Certificates, the withdrawal of any cash, or any action whatsoever within the purview of this
Indenture, any showings, certificates, opinions, appraisals or other information, or corporate
action or evidence thereof, in addition to that by the terms hereof required, as a condition of such
action by the Trustee deemed desirable for the purpose of establishing the right of the Town to
the execution and delivery of any Certificates, the withdrawal of any cash, or the taking of any
other action by the Trustee.
(m) Notwithstanding any other provision hereof, the Trustee shall not be required to
advance any of its own funds in the performance of its obligations hereunder or any other
documents related to this Indenture, but may if it has received assurances from the Owners of the
Certificates or indemnity from the Owners of the Certificates satisfactory to it that it will be
repaid.
(n) The Trustee shall have no responsibility with respect to any information,
statement or recital in any offering memorandum or other disclosure material prepared or
distributed with respect to the Certificates except to the extent that such statement was provided
by the Trustee or describes the Trustee’s duties under this Indenture.
(o) The Trustee is authorized and directed to enter into the Site Lease and the Lease,
solely in its capacity as Trustee under this Indenture.
(p) At any and all reasonable times the Trustee and its duly authorized agents,
attorneys, experts, engineers, accountants and representatives shall have the right, but shall not
be required, to inspect any and all books, papers and records of the Town pertaining to the
Leased Property and the Certificates, and to take such memoranda from and in regard thereto as
may be desired.
Section 8.03 Representations and Covenants of Trustee. The Trustee represents,
warrants and covenants as follows:
(a) So long as no Event of Indenture Default has occurred and is then continuing or
existing, except as specifically provided in the Site Lease or the Lease or as necessary to transfer
the Trust Estate to a successor Trustee, the Trustee shall not pledge or assign the Trustee’s right,
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title and interest in and to (i) the Lease or the Site Lease, (ii) the Base Rentals, other Revenues
and collateral, security interests and attendant rights and obligations which may be derived under
the Lease or the Site Lease and/or (iii) the Leased Property and any reversion therein or any of
the Trustee’s other rights under the Lease or the Site Lease or assign, pledge, mortgage,
encumber or grant a security interest in the Trustee’s right, title and interest in, to and under the
Lease or the Site Lease or the Leased Property except for Permitted Encumbrances.
(b) Neither the execution and delivery of the Lease and the Site Lease or this
Indenture by the Trustee, nor the fulfillment of or compliance with the terms and conditions
thereof and hereof, nor the consummation of the transactions contemplated thereby or hereby
conflicts with or results in a breach of the terms, conditions and provisions of any restriction or
any agreement or instrument to which the Trustee is now a party or by which the Trustee is
bound, or constitutes a default under any of the foregoing.
(c) To the Trustee’s knowledge, there is no litigation or proceeding pending against
the Trustee affecting the right of the Trustee to execute the Lease and the Site Lease or to
execute this Indenture, and perform its obligations thereunder or hereunder, except such
litigation or proceeding as has been disclosed in writing to the Town and the Initial Purchaser on
or prior to the date this Indenture is executed and delivered.
(d) The Trustee covenants and agrees to comply with any applicable requirements for
the Trustee set forth in the Tax Certificate as directed in writing by the Town.
Section 8.04 Compensation. The Trustee shall be entitled to payment and
reimbursement for its reasonable fees for its ordinary services rendered hereunder (which
compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and all advances, agent and counsel fees and other ordinary expenses
for its services rendered hereunder as and when the same become due and all expenses
reasonably and necessarily made or incurred by the Trustee in connection with such services as
and when the same become due, as provided in Section 6.2 of the Lease. In the event that it
should become necessary for the Trustee to perform extraordinary services, the Trustee shall be
entitled to reasonable additional compensation therefor and to reimbursement for reasonable and
necessary extraordinary expenses in connection therewith; provided that if such extraordinary
services or extraordinary expenses are occasioned by the negligence or willful misconduct of the
Trustee it shall not be entitled to compensation or reimbursement therefore. The Trustee shall be
entitled to payment and reimbursement of the reasonable fees and charges of the Trustee as
Paying Agent and as registrar for the Certificates. Such payments to the Trustee shall be
Additional Rentals under the Lease and shall be subject to Appropriation.
Section 8.05 Notice of Default; Right to Investigate. If an Event of Indenture Default
occurs of which the Trustee is deemed to have notice pursuant to this Section, the Trustee shall,
within thirty (30) days after it receives notice thereof, give written notice by first class mail to the
Owners of the Certificates of all Events of Indenture Default known to the Trustee and send a
copy of such notice to the Town, unless such defaults have been remedied. The Trustee shall not
be required to take notice or be deemed to have notice of any default unless it has actual
knowledge thereof or has been notified in writing of such default by the Town or the Owners of
at least 25% in aggregate principal amount of the Outstanding Certificates. The Trustee may,
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however, at any time request the Town to provide full information as to the performance of any
covenant under the Lease; and, if information satisfactory to it is not forthcoming, the Trustee
may make or cause to be made an investigation into any matter related to the Site Lease, the
Lease and the Leased Property.
Section 8.06 Obligation to Act on Defaults. If any Event of Indenture Default shall
have occurred and be continuing of which the Trustee has actual knowledge or notice pursuant to
Section 8.05, the Trustee shall exercise such of the rights and remedies vested in it by this
Indenture and shall use the same degree of care in their exercise as a prudent person would
exercise or use in the circumstances in the conduct of his or her own affairs; provided, that if in
the opinion of the Trustee such action may tend to involve expense or liability, it shall not be
obligated to take such action unless it is furnished with indemnity satisfactory to it for the
reimbursement of all costs and expenses (including, without limitation, attorney’s fees and
expenses) to which it may be put and to protect it against all liability which may incur in or by
reason of such action, except liability which is adjudicated to have resulted from its negligence
or willful misconduct by reason of any action so taken.
Section 8.07 Reliance on Requisition, etc. The Trustee may conclusively rely and
shall be fully protected from acting on any written requisition, resolution, notice, telegram,
request, consent, waiver, certificate, statement, affidavit, voucher, bond, or other paper or
document which it in good faith believes to be genuine and to have been passed or signed by the
proper persons or to have been prepared and furnished pursuant to any of the provisions of this
Indenture; and the Trustee shall be under no duty to make any investigation as to any statement
contained in any such instrument, but may accept the same as conclusive evidence of the
accuracy of such statement. Any action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of any person who at the time of making such request or giving
such authority or consent is the Owner of any Certificate shall be conclusive and binding upon
all future Owners of the same Certificate and upon any Certificates delivered in place thereof.
The Trustee shall be entitled to rely upon opinions of Counsel and shall not be
responsible for any loss or damage resulting from reliance in good faith thereon, except for its
own negligence or willful misconduct.
Section 8.08 Trustee May Own Certificates. The Trustee may in good faith buy, sell,
own and hold any of the Certificates and may join in any action which any Owner may be
entitled to take with like effect as if the Trustee were not the party to this Indenture. The Trustee
may also engage in or be interested in any financial or other transaction with the Town provided
that if the Trustee determines that any such relation is in conflict with its duties under this
Indenture, it shall eliminate the conflict or resign as Trustee.
Section 8.09 Construction of Ambiguous Provisions. The Trustee may construe any
ambiguous or inconsistent provisions of this Indenture, and any such construction by the Trustee
shall be binding upon the Owners. In construing any such provision, the Trustee will be entitled
to rely upon opinions of Counsel and will not be responsible for any loss or damage resulting
from reliance in good faith thereon, except for its own negligence or willful misconduct.
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Section 8.10 Resignation of Trustee. The Trustee may resign and be discharged of the
trusts created by this Indenture by written resignation filed with the Town and the Initial
Purchaser not less than sixty (60) days before the date when it is to take effect; provided notice
of such resignation is sent by electronic means or is mailed by registered or certified mail to the
Owner of each Outstanding Certificate at the address shown on the registration books. Such
resignation shall take effect only upon the appointment of a successor Trustee. If no successor
Trustee is appointed within sixty (60) days following the date designated for the resignation of
the Trustee, the resigning Trustee may apply to a court of competent jurisdiction to appoint a
successor Trustee. The rights of the Trustee to be held harmless, to insurance proceeds, or to
other amounts due arising prior to the date of such resignation shall survive resignation.
Section 8.11 Removal of Trustee. Any Trustee hereunder may be removed at any
time, after payment of all outstanding fees and expenses of the Trustee being so removed, by the
Town and the Initial Purchaser, or by the Owners of a majority in aggregate principal amount of
the Certificates then Outstanding, upon written notice being filed with the Trustee, the Town and
the Owner of each Outstanding Certificate at the address shown on the registration books. Such
removal shall take effect only upon the appointment of a successor Trustee. The rights of the
Trustee to be held harmless, to insurance proceeds or to other amounts due arising prior to the
date of such removal shall survive removal.
Section 8.12 Appointment of Successor Trustee. If the Trustee or any successor
trustee resigns or is removed or dissolved, or if its property or business is taken under the control
of any state or federal court or administrative body, a vacancy shall forthwith exist in the office
of the Trustee, and the Town shall appoint a successor, which has been approved by the Initial
Purchaser, and shall cause a notice of such appointment to be mailed by registered or certified
mail to the Owners of all Outstanding Certificates at the address shown on the registration books.
If the Town fails to make such appointment within thirty (30) days after the date notice of
resignation is filed, the Owners of a majority in aggregate principal amount of the Certificates
then Outstanding may do so. If the Owners have failed to make such appointment within thirty
(30) days after the date notice of resignation is filed, the Trustee may petition a court of
competent jurisdiction to make such appointment.
Section 8.13 Qualification of Successor. Any successor trustee shall execute,
acknowledge and deliver to the Town an instrument accepting such appointment under this
Indenture; and thereupon such successor trustee, without any further act, deed, or conveyance,
shall become fully vested with all the estates, properties, rights, powers, trusts, duties, and
obligations of its predecessor in the trust under this Indenture, with like effect as if originally
named Trustee herein and thereupon the duties and obligations of the previous Trustee shall
cease and terminate. Upon the payment of the fees and expenses owed to the previous Trustee,
the Trustee ceasing to act under this Indenture shall pay over to the successor trustee all moneys
held by it under this Indenture; and, upon request of the successor trustee, the Trustee ceasing to
act shall execute and deliver an instrument transferring to the successor trustee all the estates,
properties, rights, powers and trusts under this Indenture of the Trustee ceasing to Act.
Section 8.14 Instruments of Succession. Any successor trustee shall execute,
acknowledge and deliver to the Town an instrument accepting such appointment under this
Indenture; and thereupon such successor trustee, without any further act, deed or conveyance,
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shall become fully vested with all the estates, properties, rights, powers, trusts, duties and
obligations of its predecessor in the trust under this Indenture, with like effect as if originally
named Trustee herein and thereupon the duties and obligations of the predecessor shall cease and
terminate. The Trustee ceasing to act under this Indenture shall, upon the payment of the fees
and expenses owed to the predecessor Trustee, pay over to the successor trustee all moneys held
by it under this Indenture; and, upon request of the successor trustee, the Trustee ceasing to act
shall execute and deliver an instrument transferring to the successor trustee all the estates,
properties, rights, powers and trusts under this Indenture of the Trustee ceasing to act.
Section 8.15 Merger of Trustee. Any corporation into which any Trustee hereunder
may be merged or with which it may be consolidated, or any corporation resulting from any sale,
merger or consolidation of its corporate trust business to which any Trustee hereunder shall be a
party, shall be the successor trustee under this Indenture, without the execution or filing of any
paper or any further act on the part of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.16 Intervention by Trustee. In any judicial proceeding to which the Trustee
or the Town is a party and which, in the opinion of the Trustee and its Counsel, has a substantial
bearing on the interests of Owners of the Certificates, the Trustee may intervene on behalf of the
Owners and shall do so if requested in writing by the Owners of at least a majority in aggregate
principal amount of Outstanding Certificates and upon being furnished satisfactory indemnity.
The rights and obligations of the Trustee under this Section are subject to the approval of a court
of competent jurisdiction.
Section 8.17 Books and Record of the Trustee; Trustee Record Keeping. The
Trustee shall keep such books and records relating to the Site Lease and the Lease and Funds and
Accounts created under this Indenture as shall be consistent with industry practice and make
such books and records available for inspection by the Town, at all reasonable times and for six
years following the discharge of this Indenture according to Article 6 hereof.
Section 8.18 Environmental Matters. The Trustee may inform any Owner of
environmental hazards that the Trustee has reason to believe exist, and the Trustee has the right
to take no further action and, in such event no fiduciary duty exists which imposes any obligation
for further action with respect to the Trust Estate or any portion thereof if the Trustee, in its
individual capacity, determines that any such action would materially and adversely subject the
Trustee to environmental or other liability for which the Trustee has not been adequately
indemnified.
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ARTICLE 9
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LEASE AND SITE LEASE
Section 9.01 Supplemental Indentures and Amendments Not Requiring Certificate
Owners’ Consent. The Trustee may, with the written consent of the Town, but without the
consent of or notice to the Owners, enter into such indentures or agreements supplemental
hereto, for any one or more or all of the following purposes:
(a) to grant additional powers or rights to the Trustee;
(b) to authorize the execution and delivery of Additional Certificates for the purposes
and under the conditions set forth in Section 2.09 hereof;
(c) in order to preserve or protect the excludability from gross income for federal
income tax purposes of the interest portion of the Base Rentals allocable to the Certificates; or
(d) for any purpose not inconsistent with the terms of this Indenture or to cure any
ambiguity, or to correct or supplement any provision contained herein which may be defective or
inconsistent with any other provisions contained herein or to make such other amendments to
this Indenture which do not materially adversely affect the interests of the Owners of the
Certificates.
So long as the Initial Purchaser is the Owner of 100% of the Certificates Outstanding, any
amendment to this Indenture shall require the prior written consent of the Initial Purchaser, such
consent shall not be unreasonably withheld.
Section 9.02 Supplemental Indentures and Amendments Requiring Certificate
Owners’ Consent.
(a) Exclusive of supplemental indentures and amendments covered by Section 9.01
hereof, the written consent of the Town and the consent of the Owners of a majority in aggregate
principal amount of the Certificates then Outstanding, shall be required for any indenture or
indentures supplemental hereto.
(b) Notwithstanding the foregoing, without the consent of the Owners of all of the
Certificates at the time Outstanding nothing herein contained shall permit, or be construed as
permitting:
(i) A change in the terms of redemption or maturity of the principal amount
of or the interest on any Outstanding Certificate, or a reduction in the principal amount of or
premium payable upon any redemption of any Outstanding Certificate or the rate of interest
thereon, without the consent of the owner of such Certificate;
(ii) The deprivation of the Owner of any Certificate then Outstanding of the
interest created by this Indenture (other than as originally permitted hereby) without the consent
of the Owner of such Certificate;
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(iii) A privilege or priority of any Certificate or Certificates over any other
Certificate or Certificates (except with respect to the possible subordination of Additional
Certificates); or
(iv) A reduction in the aggregate principal amount of the Certificates required
for consent to such supplemental indenture.
If at any time the Town shall request the Trustee to enter into a supplemental
indenture which requires the consent of the Certificate Owners as provided herein, the Trustee
shall, upon being satisfactorily indemnified with respect to expenses, cause notice of the
proposed execution of such supplemental indenture to be mailed to the Registered Owners of the
Certificates at the addresses last shown on the registration records of the Trustee. Such notice
shall briefly set forth the nature of the proposed supplemental indenture and shall state that
copies thereof are on file at the principal corporate trust office of the Trustee for inspection by all
Certificate Owners. If, within 60 days or such longer period as shall be prescribed by the Town
following the mailing of such notice, the required consents have been furnished to the Trustee as
herein provided, no Certificate Owner shall have any right to object to any of the terms and
provisions contained therein, or the operation thereof, or in any manner to question the propriety
of the execution thereof, or to enjoin or restrain the Trustee from executing the same or from
taking any action pursuant to the provisions thereof.
Section 9.03 Amendment of the Lease and the Site Lease.
(a) The Trustee and the Town shall have the right to amend the Lease and the Site
Lease without the consent of or notice to the Owners of the Certificates, for one or more of the
following purposes:
(1) to add covenants of the Trustee or the Town or to grant additional powers
or rights to the Trustee;
(2) in order to more precisely identify the Leased Property, including any
substitutions, additions or modifications to the Leased Property as the case may be, as may be
authorized under the Site Lease and the Lease;
(3) to make additions to the Leased Property, amend the schedule of Base
Rentals and make all other amendments necessary for the execution and delivery of Additional
Certificates in accordance with Section 2.09 hereof;
(4) in order to preserve or protect the excludability from gross income for
federal income tax purposes of the interest portion of the Base Rentals allocable to the
Certificates; or
(5) for any purpose not inconsistent with the terms of this Indenture or to cure
any ambiguity or to correct or supplement any provision contained therein or in any amendment
thereto which may be defective or inconsistent with any other provision contained therein or
herein or in any amendment thereto or to make such other amendments to the Lease or the Site
Lease which do not materially adversely affect the interests of the Owners of the Certificates.
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(b) If the Trustee or the Town proposes to amend the Lease or the Site Lease in such
a way as would materially adversely affect the interests of the Owners of the Certificates, the
Trustee shall notify the Owners of the Certificates of the proposed amendment and may consent
thereto only with the consent of the Owners of a majority in aggregate principal amount of the
Outstanding Certificates; provided, that the Trustee shall not, without the unanimous consent of
the Owners of all Certificates Outstanding, consent to any amendment which would (1) decrease
the amounts payable in respect of the Lease, or (2) change the Base Rentals Payment Dates or (3)
change any of the prepayment provisions of the Lease.
(c) Any provision of subsections (a) and (b) above to the contrary notwithstanding, so
long as the Initial Purchaser is the Owner of 100% of the Certificates Outstanding, any
amendment to the Lease or the Site Lease shall require the prior written consent of the Initial
Purchaser, which consent shall not be unreasonably withheld.
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ARTICLE 10
MISCELLANEOUS
Section 10.01 Evidence of Signature of Owners and Ownership of Certificates. Any
request, consent or other instrument which this Indenture may require or permit to be signed and
executed by the Owners may be in one or more instruments of similar tenor, and shall be signed
or executed by such Owners in person or by their attorneys appointed in writing. Proof of the
execution of any such instrument or of an instrument appointing any such attorney, or the
ownership of Certificates shall be sufficient (except as otherwise herein expressly provided) if
made in the following manner, but the Trustee may, nevertheless, in its discretion require further
or other proof in cases where it deems the same desirable:
(a) The fact and date of the execution by any Owner or his attorney of such
instrument may be proved by the certificate of any officer authorized to take acknowledgments
in the jurisdiction in which he purports to act that the person signing such request or other
instrument acknowledged to him the execution thereof, or by an affidavit of a witness of such
execution, duly sworn to before a notary public.
(b) The fact of the owning by any person of Certificates and the amounts and
numbers of such Certificates, and the date of the owning of the same, may be proved by a
certificate executed by any trust company, bank or bankers, wherever situated, stating that at the
date thereof the party named therein did exhibit to an officer of such trust company or bank or to
such bankers, as the property of such party, the Certificates therein mentioned, if such certificate
shall be deemed by the Trustee to be satisfactory. The Trustee may, in its discretion, require
evidence that such Certificates have been deposited with a bank, bankers or trust company before
taking any action based on such ownership. In lieu of the foregoing the Trustee may accept other
proofs of the foregoing as it shall deem appropriate.
Any request or consent of the owner of any Certificate shall be conclusive upon and shall
bind all future owners of such Certificate and of any Certificate issued upon the transfer or
exchange of such Certificate in respect of anything done or suffered to be done by the Town, the
Trustee in accordance therewith, whether or not notation of such consent or request is made upon
any such Certificate.
Section 10.02 Inspection of the Leased Property. Under the Lease, the Trustee and its
duly authorized agents (a) have the right, but not the duty, on reasonable notice to the Town, at
all reasonable times, to examine and inspect the Leased Property (subject to such regulations as
may be imposed by the Town for security purposes) and (b) are permitted, but have no
obligation, at all reasonable times, to examine the books, records, reports and other papers of the
Town with respect to the Leased Property.
Section 10.03 Parties Interested Herein. Nothing in this Indenture expressed or
implied is intended or shall be construed to confer upon, or to give to, any person other than the
Town, the Trustee and the Owners any right, remedy or claim under or by reason of this
Indenture or any covenant, condition or stipulation of this Indenture; and all the covenants,
stipulations, promises and agreements in this Indenture contained by and on behalf of the Trustee
shall be for the sole and exclusive benefit of the Town, the Trustee, and the Owners.
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Section 10.04 Titles, Headings, Etc. The titles and headings of the articles, sections and
subdivisions of this Indenture have been inserted for convenience of reference only and shall in
no way modify or restrict any of the terms or provisions of this Indenture.
Section 10.05 Severability. In the event any provision of this Indenture shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision of this Indenture.
Section 10.06 Governing Law. This Indenture shall be governed and construed in
accordance with the laws of the State of Colorado without regard to choice of law analysis.
Section 10.07 Execution in Counterparts. This Indenture 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 10.08 Notices. All notices, certificates or other communications to be given
hereunder shall be sufficiently given and shall be deemed given when delivered by personal
delivery, next day delivery service, electronic communications, or mailed by certified or
registered mail, postage prepaid, addressed as follows:
if to the Trustee,
[ADDRESS]
if to the Town,
Town of Avon, Colorado
100 Mikaela
Avon, Colorado 81620
Attention: Finance Director
The Trustee may, by written notice, designate any further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 10.09 Successors and Assigns. All the covenants, promises and agreements in
this Indenture contained by or on behalf of the Trustee shall bind and inure to the benefit of its
successors and assigns, whether so expressed or not.
Section 10.10 Consent and Notice to the Initial Purchaser. Any provision herein
requiring the specific consent of or notice to the Initial Purchaser shall be applicable so long as
the Initial Purchaser is the Owner of all of the Certificates then Outstanding. Such consent of the
Initial Purchaser as the Owner of all of the Certificates then Outstanding shall not be
unreasonably withheld. This Section 10.10 shall not be construed to deprive the Initial Purchaser
of any notice or right to consent as one of the Owners of the Certificates where the consent of or
notice to the Owners of the Certificates in general is required herein.
Section 10.11 Payments Due on Saturdays, Sundays and Holidays. If the date for
making any payment or the last day for performance of any act or the exercising of any right, as
provided in this Indenture, shall be a day other than a Business Day such payment may be made
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or act performed or right exercised on the next succeeding Business Day with the same force and
effect as if done on the nominal date provided in this Indenture.
Section 10.12 Electronic Storage. The parties hereto agree that the transaction
described herein may be conducted and related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action or suit in the appropriate court of law.
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IN WITNESS WHEREOF, the Trustee has caused this Indenture to be executed all as of
the date first above written.
[TRUSTEE], as Trustee
By:
Senior Vice President
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A-1
EXHIBIT A
FORM OF CERTIFICATE
TAXABLE/CONVERTIBLE TO TAX EXEMPT
REFUNDING CERTIFICATE OF PARTICIPATION,
SERIES 2020
Evidencing a Proportionate Interest in the
Base Rentals and other Revenues under an Annually
Renewable Lease Purchase Agreement, dated April [__], 2020, between
[TRUSTEE], as Trustee, as lessor,
and the Town of Avon, Colorado, as lessee
No. R-1 $[_____]
Interest Rate Maturity Date Dated Date CUSIP Number
[__]% Taxable
[___]% Tax
Exempt
December 1, 2030 April [__], 2020 N/A
Registered Owner: [INITIAL PURCHASER]
Principal Amount: [___________] THOUSAND DOLLARS
THIS CERTIFIES THAT the Registered Owner (specified above), or registered assigns,
as the Registered Owner (the “Owner”) of this Certificate of Participation, Series 2020 (this
“Certificate”), is the Owner of a proportionate interest in the right to receive certain designated
Revenues, including Base Rentals, under and as defined in the Lease Purchase Agreement (the
“Lease”) dated as of April [__], 2020, between [TRUSTEE], Denver, Colorado, as Trustee (the
“Trustee”), as lessor, and the Town of Avon, Colorado (the “Town”), as lessee. This Certificate
is secured as provided in the Lease and the Indenture of Trust (the “Indenture”) dated as of April
[__], 2020, by the Trustee, for the registered owners of the Taxable/Convertible to Tax-Exempt
Certificates of Participation, Series 2020 (the “Certificates”). All terms capitalized but not
defined herein shall have the meanings given to them in the Indenture.
This Certificate bears interest, matures, is payable, is subject to redemption, and is
transferable as provided in the Indenture.
Under the Site Lease, certain Leased Property described therein (the “Leased Property”)
has been leased by the Town, as lessor, to the Trustee, as lessee. Under the Lease, the Leased
Property has been leased back by the Trustee, as lessor, to the Town, as lessee, and the Town has
agreed to pay directly to the Trustee Base Rentals in consideration of the Town’s right to possess
and use the Leased Property. Certain Revenues, including Base Rentals, are required under the
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Indenture to be distributed by the Trustee for the payment of the Certificates and interest thereon.
The Lease is subject to annual appropriation, non-renewal and, in turn, termination by the Town.
This Certificate has been executed and delivered pursuant to the terms of the Indenture.
Reference is hereby made to the Site Lease, the Lease and the Indenture (copies of which are on
file in the offices of the Trustee) for a description of the terms on which the Certificates are
delivered, and the rights thereunder of the Owners of the Certificates, the rights, duties and
immunities of the Trustee and the rights and obligations of the Town under the Site Lease and
the Lease, to all of the provisions of which Site Lease, Lease and Indenture the Owner of this
Certificate, by acceptance hereof, assents and agrees.
Additional Certificates may be executed and delivered only upon the prior written
consent of the Initial Purchaser if at such time it is Owner of 100% of the Certificates then
Outstanding, and if it is not such Owner, then Additional Certificates may be executed and
delivered without the consent of or notice to the Owners of Outstanding Certificates, upon the
satisfaction of certain conditions and limitations. Such Additional Certificates, together with the
Certificates, are referred to herein as the “Certificates.” Additional Certificates will evidence
interests in rights to receive Revenues, including Base Rentals, without preference, priority or
distinction of any Certificates, including the Certificates, over any others, however, insurance
and other credit facilities may be applicable only to particular series of Certificates or portions
thereof.
To the extent and in the manner permitted by the terms of the Indenture, the provisions of
the Indenture may be amended by the Trustee with the written consent of the Owners of a
majority in aggregate principal amount of the Certificates outstanding, and may be amended
without such consent under certain circumstances described in the Indenture but in no event such
that the interests of the Owners of the Certificates are materially adversely affected, provided
that no such amendment is to impair the right of any Owner to receive in any case such Owner’s
proportionate share of any payment of Revenues in accordance with the terms of such Owner’s
Certificate.
THE OWNER OF THIS CERTIFICATE IS ENTITLED TO RECEIVE, SUBJECT TO
THE TERMS OF THE LEASE, THE PRINCIPAL AMOUNT (SPECIFIED ABOVE), ON THE
MATURITY DATE (SPECIFIED ABOVE), AND IS ENTITLED TO RECEIVE INTEREST
ON THE PRINCIPAL AMOUNT AT THE INTEREST RATE (SPECIFIED ABOVE). The
interest hereon is payable at the interest rate from the Dated Date (specified above) on [___], and
semiannually thereafter on June 1 and December 1 in each year (the “Interest Payment Dates”)
and thereafter (A) from the Execution Date (specified below), if this Certificate is executed on an
Interest Payment Date or (B) from the last preceding Interest Payment Date to which interest has
been paid in all other cases, until the Principal Amount is paid as set forth herein. Interest is to
be calculated on the basis of a 360-day year consisting of twelve 30-day months.
THIS CERTIFICATE IS PAYABLE SOLELY FROM THE BASE RENTALS
PAYABLE TO THE TRUSTEE PURSUANT TO THE LEASE AND OTHER REVENUES AS
DEFINED IN THE INDENTURE. NEITHER THE LEASE, THIS CERTIFICATE, OR THE
OBLIGATION OF THE TOWN TO PAY BASE RENTALS OR ADDITIONAL RENTALS
CONSTITUTES A GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE TOWN
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OR A MULTIPLE FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL
OBLIGATION WHATSOEVER OF THE TOWN, WITHIN THE MEANING OF ANY
CONSTITUTIONAL, HOME RULE CHARTER OR STATUTORY DEBT LIMITATION.
NEITHER THE LEASE NOR THE CERTIFICATES HAVE DIRECTLY OR INDIRECTLY
OBLIGATED THE TOWN TO MAKE ANY PAYMENTS BEYOND THOSE
APPROPRIATED FOR THE TOWN’S THEN CURRENT FISCAL YEAR.
Interest hereon is payable to the Owner, as shown on the registration books kept by the
Trustee as of the close of business on the “regular record date,” which is the 15th day of the
calendar month immediately preceding the month of the Interest Payment Date (whether or not a
Business Day) or on a “special record date” established in accordance with the Indenture. The
Trustee may treat the Owner of this Certificate appearing on the registration books maintained by
the Trustee as the absolute owner hereof for all purposes and is not to be affected by any notice
to the contrary. The Principal Amount or redemption price hereof and interest hereon are
payable in lawful money of the United States of America.
This Certificate is transferable by the Owner hereof, in person or by his attorney duly
authorized in writing, on the registration books kept at the corporate trust office of the Trustee.
Upon such transfer, a new fully registered Certificate of the same maturity, of authorized
denomination or denominations, for the same aggregate principal amount, will be executed and
delivered to the transferee in exchange for this Certificate, all upon payment of the charges and
subject to the terms and conditions set forth in the Indenture. The Trustee may deem and treat
the person in whose name this Certificate is registered as the absolute owner hereof, whether or
not this Certificate shall be overdue, for the purpose of receiving payment and for all other
purposes, and neither the Town nor the Trustee shall be affected by any notice to the contrary.
Optional Redemption. The Certificates shall be subject to redemption prior to maturity at
the option of the Town, in whole or in part, in integral multiples of $5,000, and if in part in such
order of maturities as the Town shall determine and by lot within a maturity, on June 1, 2015,
and on any interest payment date thereafter, at a redemption price equal to the principal amount
of the Certificates so redeemed plus accrued interest to the redemption date without a redemption
premium.
Mandatory Sinking Fund Redemption. The Certificates are subject to mandatory sinking
fund redemption at a price equal to the principal amount thereof plus accrued interest to the
redemption date.
Town shall deposit in the Base Rentals Fund on or before December 1, 20[__] and on or
before each December 1 thereafter through and including December 1, 20[__], a sum which
together with other moneys available in the Base Rentals Fund is sufficient to redeem (after
credit as hereinafter provided), on the following dates, the following principal amounts of the
2020 Certificate:
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December 1 of
the Year
Principal
Amount
2020
2021
2022
2023
2024
2025
2026
2027
2028
2029
2030
TOTAL $[____]
___________
*Maturity.
On or before the 30th day prior to each such sinking fund payment date, the Trustee shall
proceed to call the Term Certificates indicated above (or any Term Certificate or Certificates
issued to replace such Term Certificates) for redemption from the sinking fund on the next
December 1, and give notice of such call without other instruction or notice from the Town. The
amount of each sinking fund installment may be reduced by the principal amount of any Term
Certificates of the maturity and interest rate which are subject to sinking fund redemption on
such date and which prior to such date have been redeemed (otherwise than through the
operation of the sinking fund) or otherwise canceled and not theretofore applied as a credit
against a sinking fund installment. Such reductions, if any, shall be applied in such year or years
as may be determined by the Town.
Notwithstanding any provisions to the contrary contained herein, so long as the Initial
Purchaser is the sole owner of the Certificates, the Initial Purchaser shall not be required to
surrender the Certificates to the Trustee to receive payment in connection with a mandatory
sinking fund redemption, but shall be required to surrender the Certificates only on the
applicable final maturity date thereof to receive payment of the applicable final principal
payment thereof.
Extraordinary Mandatory Redemption. If the Lease is terminated by reason of the
occurrence of (a) an Event of Nonappropriation, or (b) an Event of Lease Default, or (c) the
Trustee, at the direction of the Town, fails to repair or replace the Leased Property if: (1) the
Leased Property is damaged or destroyed in whole or in part by fire or other casualty; (2) title to,
or the temporary or permanent use of, the Leased Property, or any portion thereof, has been
taken by eminent domain by any governmental body; (3) breach of warranty or any material
defect with respect to the Leased Property becomes apparent; or (4) title to or the use of all or
any portion of the Leased Property is lost by reason of a defect in title thereto, and the Net
ATTACHMENT E
A-5
Proceeds (as defined in the Lease) of any insurance, performance bond or condemnation award,
or Net Proceeds received as a consequence of defaults under contracts relating to the Leased
Property, made available by reason of such occurrences, are insufficient to pay in full, the cost of
repairing or replacing the Leased Property and the Town does not appropriate sufficient funds for
such purpose or cause the Lease to be amended in order that Additional Certificates may be
executed and delivered pursuant to the Indenture for such purpose, the Certificates are required
to be called for redemption. If called for redemption, as described herein, the Certificates are to
be redeemed in whole on such date or dates as the Trustee may determine, for a redemption price
equal to the principal amount thereof, plus accrued interest to the redemption date (subject to the
availability of funds as described below).
If the Net Proceeds, including the Net Proceeds from the exercise of any Lease Remedy
under the Lease, otherwise received and other moneys then available under the Indenture are
insufficient to pay in full the principal of and accrued interest on all Outstanding Certificates, the
Trustee may, or at the request of the Owners of a majority in aggregate principal amount of the
Certificates Outstanding, and upon indemnification as to costs and expenses as provided in the
Indenture, without any further demand or notice, is to exercise all or any combination of Lease
Remedies as provided in the Lease and the Certificates are to be redeemed by the Trustee from
the Net Proceeds resulting from the exercise of such Lease Remedies and all other moneys, if
any, then on hand and being held by the Trustee for the Owners of the Certificates.
If the Net Proceeds resulting from the exercise of such Lease Remedies and other moneys
are insufficient to redeem the Certificates at 100% of the principal amount thereof plus interest
accrued to the redemption date, then such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys are to be allocated proportionately among the Certificates,
according to the principal amount thereof Outstanding. In the event that such Net Proceeds
resulting from the exercise of such Lease Remedies and other moneys are in excess of the
amount required to redeem the Certificates at 100% of the principal amount thereof plus interest
accrued to the redemption date, then such excess moneys are to be paid to the Town as an
overpayment of the Purchase Option Price in respect of the Leased Property. Prior to any
distribution of the Net Proceeds resulting from the exercise of any of such remedies, the Trustee
is entitled to payment of its reasonable and customary fees for all services rendered in connection
with such disposition, as well as reimbursement for all reasonable costs and expenses, including
attorneys’ fees, incurred thereby, from proceeds resulting from the exercise of such Lease
Remedies and other moneys.
IF THE CERTIFICATES ARE REDEEMED FOR AN AMOUNT LESS THAN THE
AGGREGATE PRINCIPAL AMOUNT THEREOF PLUS INTEREST ACCRUED TO THE
REDEMPTION DATE, SUCH PARTIAL PAYMENT IS DEEMED TO CONSTITUTE A
REDEMPTION IN FULL OF THE CERTIFICATES, AND UPON SUCH A PARTIAL
PAYMENT NO OWNER OF SUCH CERTIFICATES, INCLUDING THE CERTIFICATES,
SHALL HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST THE TRUSTEE OR
THE TOWN.
Partial Redemption. If less than all of the Certificates are to be redeemed, the
Certificates are to be redeemed only in integral multiples of $5,000. The Trustee is to treat any
Certificates of denomination greater than $5,000 as representing that number of separate
ATTACHMENT E
A-6
Certificates each of the denomination of $5,000 as can be obtained by dividing the actual
principal amount of such Certificates by $5,000. Upon surrender of any Certificate for
redemption in part, the Trustee is to execute and deliver to the Owner thereof, at no expense of
the Owner, a new Certificate or Certificates of authorized denominations in an aggregate
principal amount equal to the unredeemed portion of the Certificates so surrendered.
Notice of Redemption. Whenever Certificates are to be redeemed, the Trustee is required
to, not less than thirty (30) and not more than sixty (60) days prior to the redemption date (except
for Extraordinary Mandatory Redemption notice which is required to be immediate), mail notice
of redemption to all Owners of all Certificates to be redeemed at their registered addresses, by
first class mail, postage prepaid, or in the event that the Certificates to be redeemed are registered
in the name of the Depository, such notice may, in the alternative, be given by electronic means
in accordance with the requirements of the Depository.. Any notice of redemption is to (1) be
given in the name of the Trustee, (2) identify the Certificates to be redeemed, (3) specify the
redemption date and the redemption price, (4) in the event of Optional Redemption, state that the
Town has given notice of its intent to exercise its option to purchase or prepay Base Rentals
under the Lease, (5) state that such redemption is subject to the deposit of the funds related to
such option by the Town on or before the stated redemption date and (6) state that on the
redemption date the Certificates called for redemption will be payable at the corporate trust
office of the Trustee and that from that date interest will cease to accrue. The Trustee may use
“CUSIP” numbers in notices of redemption as a convenience to Certificates Owners, provided
that any such notice is required to state that no representation is made as to the correctness of
such numbers either as printed on the Certificates or as contained in any notice of redemption
and that reliance may be placed only on the identification numbers containing the prefix
established under the Indenture.
This Certificate is executed and delivered under the authority of Part 2 of Article 57,
Title 11, Colorado Revised Statutes (the “Supplemental Act”). Pursuant to Section 11-57-210 of
the Supplemental Act, such recital shall be conclusive evidence of the validity and the regularity
of the issuance of this Certificate after its delivery for value.
This Certificate is executed with the intent that the laws of the State of Colorado shall
govern its legality, validity, enforceability and construction. The Town has determined that this
Certificate is authorized and issued under the authority of and in full conformity with the
Constitution of the State of Colorado and all other laws of the State of Colorado thereunto
enabling.
This Certificate shall not be valid or become obligatory for any purpose or be entitled to
any security or benefit under the Lease or the Indenture, until executed by the Trustee.
On or after the Conversion Date, for the purpose of Section 265(b)(3)(B) of the Internal
Revenue Code, the Town has designated the Certificates as qualified tax-exempt obligations.
The Trustee has executed this Certificate solely in its capacity as Trustee under the
Indenture and not in its individual or personal capacity. The Trustee is not liable for the
obligations evidenced by the Certificates except from amounts held by it in its capacity as
Trustee under the Indenture.
ATTACHMENT E
A-7
IT IS HEREBY CERTIFIED, RECITED AND DECLARED that all things, conditions
and acts required by the Constitution and the statutes of the State and the Indenture to exist, to
have happened and to have been performed precedent to and the execution and delivery of this
Certificate, do exist, have happened and have been performed in due time, form and manner, as
required by law.
IN WITNESS WHEREOF, this Certificate has been executed with the manual signature
of an authorized representative of the Trustee.
Execution Date: April [__], 2020
[TRUSTEE], as Trustee
By:
Senior Vice President
ATTACHMENT E
A-8
(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
______________________________________________ the within Certificate and hereby
irrevocably constitutes and appoints ____________ Attorney, to transfer the within Certificate
on the books kept for registration thereof, with full power of substitution in the premises.
Signature
Dated:
Signature Guaranteed:
Signature must be guaranteed by a member
of a Medallion Signature Program
Address of Transferee:
____________________________________
____________________________________
____________________________________
Social Security or other tax
identification number of transferee:
NOTE: The signature to this Assignment must correspond with the name as written on the face
of the within bond in every particular, without alteration or enlargement or any change
whatsoever.
(End Form of Assignment)
ATTACHMENT E
A-9
(Form of Prepayment Panel)
PREPAYMENT PANEL
The following installments of principal (or portions thereof) of this certificate have been
prepaid in accordance with the terms of the Indenture, as amended, authorizing the issuance of
this certificate.
Date of
Prepayment
Principal
Prepaid
Signature of
Authorized
Representative of DTC
(End of Form of Redemption Panel)
(End Form of Certificates)
51929580.v1
ATTACHMENT E
TOWN OF AVON, COLORADO
REFUNDING CERTIFICATES OF PARTICIPATION
SERIES 2020
ESCROW AGREEMENT
DATED as of April [__], 2020 made by and between THE TOWN OF AVON,
COLORADO (the “Town), and [ESCROW AGENT], a national banking association, as escrow
agent (the “Escrow Agent”), a bank having and exercising full and complete trust powers, duly
organized and existing under the laws of the United States, being a member of the Federal
Deposit Insurance Corporation and the Federal Reserve System.
(1) WHEREAS, there have heretofore been executed and delivered pursuant
to the terms and provisions of an Indenture of Trust, dated November 1, 2010 (the “Prior
Indenture”), executed by UMB Bank, n.a., as trustee, certain Refunding and Improvement
Certificates of Participation, Series 2010 (the “2010 Certificates”) in the original aggregate
principal amount of $6,680,000; and
(2) WHEREAS, the 2010 Certificates are currently outstanding in the
aggregate principal amount of $4,300,000, mature on December 1 in the following years in the
following aggregate principal amounts and bear interest at the following per annum interest
rates:
Years Principal Amounts Interest Rates
2020 $310,000 3.500%
2024 1,380,000 5.000
2030 2,610,000 4.500
; and
(3) WHEREAS, the 2010 Certificates maturing on and after December 1,
2020, are subject to redemption prior to maturity, in whole or in part on December 1, 2020, and
on any date thereafter, at a redemption price equal to 100% of the principal amount of the 2010
Certificates outstanding plus accrued interest to the redemption date; and
(4) WHEREAS, the Town has determined to call for prior redemption on all
of the currently outstanding 2010 Certificates maturing on and after December 1, 2020, in the
aggregate principal amount of $4,300,000 (the “Refunded Certificates”) and refund the Refunded
Certificates in whole on December 1, 2020 (the “Redemption Date”), at a price equal to the
principal amount thereof plus accrued interest thereon to the Redemption Date; and
(5) WHEREAS, [INITIAL PURCHASER] (the “Purchaser”) has agreed to
purchase the certain Taxable/Convertible to Tax-Exempt Refunding Certificates of Participation,
Series 2020 in the aggregate principal amount of $[_____] (the “Certificates”), to be issued in
part for the purpose of refinancing the Refunded Certificates by (a) paying the interest on all of
the Refunded Certificates, as such interest becomes due on and after the date of delivery of the
ATTACHMENT F
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Certificates, and by (b) paying the principal of the Refunded Certificates on their maturity date or
prior redemption on the Redemption Date, all as set forth in the certified public accountant’s
report attached as Exhibit A to this Escrow Agreement (the “Refunded Certificate
Requirements”) and to pay incidental costs thereof; and
(6) WHEREAS, the Certificates are being executed and delivered pursuant to
the provisions of an Indenture of Trust, dated as of April [__], 2020 (the “Indenture”), executed
by [TRUSTEE]., as trustee (the “2020 Trustee”); and
(7) WHEREAS, the Certificates were sold subject to the approving opinion of
the Town’s special counsel, Butler Snow LLP, Denver, Colorado; and
(8) WHEREAS, the Town, by an ordinance duly adopted by the Town on
March 24, 2020 (the “Ordinance”) and the Sale Certificate executed in accordance therewith (the
“Sale Certificate”), among other provisions:
A. Provided for the deposit in the Escrow Account (defined below) of a
portion of the net proceeds of the Certificates in an aggregate amount fully sufficient,
together with the known minimum yield from the investment of such moneys as herein
provided, to pay the Refunded Certificate Requirements, as set forth therein and herein;
B. Provided for the purchase of federal securities with such moneys credited
to the Escrow Account; and
C. Authorized the completion and execution of this Escrow Agreement.
(9) WHEREAS, copies of the Ordinance, the Sale Certificate and the
Indenture have been delivered to the Escrow Agent and the provisions therein set forth are herein
incorporated by reference as if set forth herein verbatim in full; and
(10) WHEREAS, the federal securities described in Exhibit A to this Escrow
Agreement have appropriate maturities and yields to provide funds sufficient for, together with
the initial cash, if any, the payment of the Refunded Certificate Requirements; and
(11) WHEREAS, a schedule of the payments and disbursements in the certified
public accountant’s report attached as Exhibit A to this Escrow Agreement demonstrate the
sufficiency of the deposit to the Escrow Account for such purpose; and
(12) WHEREAS, the Escrow Agent is empowered to undertake the obligations
and commitments on its part herein set forth; and
(13) WHEREAS, the undersigned officer of the Escrow Agent is duly
authorized to execute and deliver this Escrow Agreement in the Escrow Agent’s name and on its
behalf; and
(14) WHEREAS, the Town is empowered to undertake the obligations and
commitments on its part herein set forth; and
ATTACHMENT F
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(15) WHEREAS, the undersigned officers of the Town are duly authorized to
execute and deliver this Escrow Agreement in the Town’s name and on its behalf.
NOW, THEREFORE, THIS ESCROW AGREEMENT WITNESSETH:
That in consideration of the premises and the mutual agreements herein contained,
and in order to secure the payment of the Refunded Certificate Requirements as the same
become due, the parties hereto mutually undertake, promise and agree for themselves and their
respective representatives, successors and assigns, as follows:
Section 1. Creation of Escrow.
A. Simultaneously with the delivery of the Certificates, and subject to their
execution and delivery, there shall be purchased, with $[______] derived from the proceeds of
the Certificates, the Federal Securities (as defined in the 2010 Indenture) as shown in Exhibit A
to this Escrow Agreement (the “Initial Federal Securities”) and an initial cash deposit of $[__]
(the “initial deposit”) shall be credited to and accounted for in a separate trust account designated
as the “Town of Avon, Colorado, 2020 Certificates of Participation, Escrow Account” (the
“Escrow Account”). For purposes of the Prior Indenture, the Escrow Account shall be
considered to be a continuation of the Base Rental Fund created under the Prior Indenture.
Receipt of $[_____] by the Escrow Agent to be applied as provided herein is hereby
acknowledged.
B. To the extent such action is not inconsistent herewith or with the Prior
Indenture, other Federal Securities may be substituted for the Initial Federal Securities if such
Initial Federal Securities are unavailable for purchase at the time of execution and delivery of the
Certificates or other Federal Securities may be substituted for any Federal Securities held in the
Escrow Account if such substitution is required or permitted by Section 148 of the Internal
Revenue Code of 1986, as amended (the “Tax Code”), and the applicable regulations thereunder,
subject in any case to sufficiency demonstrations and yield proofs in a certified public
accountant’s report, and subject to a favorable opinion of the Town’s special counsel as to the
legality of any such substitution, and the continued exemption of interest on the Certificates from
federal income taxation (except certain alternative minimum taxes described in Certificate
counsel’s opinion), and in any event in such a manner so as not to increase the price paid for the
initial acquisition of Federal Securities for the Escrow Account. The certified public
accountant’s report must indicate that the receipts from the substitute securities are sufficient
without any need for reinvestment to fully pay the Refunded Certificate Requirements. In lieu
of, or in addition to, substituting other Federal Securities pursuant to the preceding sentence,
moneys in an amount equal to the principal of and interest on all or any portion of such Initial
Federal Securities may be credited to the Escrow Account subject to the provisions of Section 5
hereof. Any such cash shall be deemed to be part of the initial deposit. Any Federal Securities
temporarily substituted may be withdrawn from the Escrow Account when the Initial Federal
Securities are purchased and credited to the Escrow Account. Similarly, any temporary
advancement of moneys to the Escrow Account to pay designated Refunded Certificate
Requirements, because of a failure to receive promptly the principal of and interest on any
Federal Securities at their respective fixed maturity dates, or otherwise, may be repaid to the
ATTACHMENT F
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person advancing such moneys upon the receipt by the Escrow Agent of such principal and
interest payments on such Federal Securities.
C. The initial deposit, the proceeds of the Initial Federal Securities (and of
any other Federal Securities acquired as an investment or reinvestment of moneys accounted for
in the Escrow Account), and any such Federal Securities themselves (other than Federal
Securities, including the Initial Federal Securities, held as book-entries) shall be deposited with
the Escrow Agent and credited to and accounted for in the Escrow Account. The securities and
moneys accounted for therein shall be redeemed and paid out and otherwise administered by the
Escrow Agent for the benefit of the Town and the owners of the Refunded Certificates as
provided in this Escrow Agreement and the Prior Indenture.
Section 2. Purpose of Escrow.
A. The Escrow Agent shall hold the initial deposit, all Federal Securities
accounted for in the Escrow Account (other than any Federal Securities, including the Initial
Federal Securities, held as book-entries), and all moneys received from time to time as interest
on and principal of such Federal Securities (including those held as book-entries), in trust to
secure and for the payment of the Refunded Certificate Requirements, as the same become due.
B. Except as provided in paragraph B of Section 1 and in Section 8 hereof,
the Escrow Agent shall collect the principal of and interest on such Federal Securities promptly
as such principal and interest become due and shall apply all money so collected to the payment
of the Refunded Certificate Requirements as aforesaid.
Section 3. Accounting for Escrow.
A. The moneys and the Federal Securities accounted for in the Escrow
Account shall not be subject to checks drawn by the Town or otherwise subject to the order of
the Town except as otherwise provided in paragraph B of Section 1 and in Section 8 hereof.
B. UMB Bank, n.a., as Trustee for the Refunded Certificates [and as the
Escrow Agent hereunder], shall transfer directly to the Depository Trust Company (“DTC”), as
the registered owner of the Refunded Certificates, sufficient moneys to pay the Refunded
Certificate Requirements. The Escrow Agent hereby agrees to make such payment of the
Refunded Certificate Requirements to DTC. The Escrow Agent shall never be required to
advance its own funds for payment in connection with the Refunded Certificate Requirements.
C. Except as otherwise provided in paragraph B of Section 1 hereof, there
shall be no sale of any Federal Securities held hereunder, and no Federal Securities held
hereunder and callable for prior redemption at the Town’s option shall be called at any time for
prior redemption, except if necessary to avoid a default in the payment of the Refunded
Certificate Requirements.
Section 4. Maturities of Federal Securities.
A. Federal Securities shall not be callable by the issuer thereof and shall be
purchased in such manner:
ATTACHMENT F
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(1) So that such Federal Securities may be redeemed in due season at
their respective maturities to meet the Refunded Certificate Requirements as the same
become due; and
(2) So that any sale or prior redemption of such Federal Securities
shall be unnecessary.
B. There shall be no substitution of any Federal Securities except as
otherwise provided in paragraph B of Section 1 hereof.
Section 5. Reinvestments.
A. The Escrow Agent shall reinvest the cash balances listed in Exhibit A
(including Exhibit A therein) for the period designated therein in Federal Securities purchased by
the Escrow Agent in the name of the Town.
B. In addition to or, as the case may be, in lieu of the reinvestments required
by paragraph A of this Section, the Escrow Agent, at the written direction of the Town, shall
invest the initial cash, if any, and shall reinvest in Federal Securities any moneys received in
payment of the principal of and interest on any Federal Securities accounted for in the Escrow
Account, subject to the limitations of Sections 1, 4 and 6 hereof and the following limitations:
(1) Any such Federal Securities shall not be subject to redemption
prior to their respective maturities at the option of their issuer.
(2) Any such Federal Securities shall mature on or prior to the date
when the proceeds thereof must be available for the prompt payment of the Refunded
Certificate Requirements, as the same become due.
(3) Under no circumstances shall any reinvestment be made under this
Section if such reinvestment, alone or in combination with any other investment or
reinvestment, violates the applicable provisions of Section 148 of the Tax Code, and the
rules and regulations thereunder.
(4) The Escrow Agent shall make no such reinvestment unless the
Town first obtains and furnishes to the Escrow Agent a written opinion of the Town’s
Certificate counsel to the effect that such reinvestment, as described in the opinion,
complies with subparagraph B(3) of this Section.
Section 6. Sufficiency of Escrow. The moneys and Federal Securities
accounted for in the Escrow Account shall be in an amount (or have appropriate maturities and
yields to produce an amount) which at all times shall be sufficient to pay the Refunded
Certificate Requirements as they become due.
Section 7. Transfers for Refunded Certificate Requirements. The Escrow
Agent shall make such credit arrangements and transfers as will assure, to the extent of money in
the Escrow Account properly allocable to and available therefor, the timely payment of the
Refunded Certificate Requirements when due.
ATTACHMENT F
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Section 8. Termination of Escrow Account. When payment or provisions
for payment shall have been made so that all Refunded Certificate Requirements shall have been
paid in full and discharged, the Escrow Agent shall immediately pay over to the Town the
moneys, if any, then remaining in the Escrow Account and shall make forthwith a final report to
the Town. Any moneys so transferred to the Town shall be used by the Town to pay a portion of
the interest coming due on the Certificates on the first interest payment date of the Certificates.
Section 9. Fees.
A. The Escrow Agent’s total fees and costs for and in carrying out the
provisions of this Escrow Agreement have been fixed at $[___], which amount is to be paid at or
prior to the time of the execution and delivery of the Certificates directly to the Escrow Agent as
payment in full of all charges of the Escrow Agent pertaining to this Escrow Agreement for
services performed hereunder.
B. Such payment for services rendered and to be rendered by the Escrow
Agent shall not be for deposit in the Escrow Account, and the fees of and the costs incurred by
the Escrow Agent shall not be deducted from such account.
Section 10. Status Report.
A. No later than June 30, 2021, the Escrow Agent shall submit to the Town a
report covering all money which the Escrow Agent shall have received and all payments which it
shall have made or caused to be made hereunder.
B. The report shall indicate for which period and in which trust bank any
Federal Securities (other than Federal Securities held as book-entries) and any uninvested
moneys were transferred for safekeeping or any Federal Securities (other than Federal Securities
held as book-entries) pledged to secure the repayment of any uninvested moneys were placed in
pledge, as permitted by Section 12.
Section 11. Character of Deposit.
A. It is recognized that title to the Federal Securities and money accounted
for in the Escrow Account from time to time shall remain vested in the Town or in the Escrow
Agent on behalf of the Town but subject always to the prior charge and lien thereon of this
Escrow Agreement and the use thereof required to be made by the provisions of this Escrow
Agreement.
B. The Escrow Agent shall hold all such Federal Securities (except as they
may be held as book-entries) and money in the Escrow Account as a special trust fund and
account separate and wholly segregated from all other securities and funds of the Escrow Agent
or deposited therein, and shall never commingle such securities or money with other securities or
money.
ATTACHMENT F
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Section 12. Securing Deposit.
A. The Escrow Agent may cause the Federal Securities accounted for in the
Escrow Account to be registered in the name of the Escrow Agent on behalf of the Town for
payment, if they are registrable for payment, and in such event shall obtain the necessary
endorsements from the duly authorized officials of the Town as they become due.
B. The Town, in connection with any Federal Securities accounted for in the
Escrow Account and held as book-entries, shall cooperate with the Escrow Agent and shall
forthwith make arrangements with an appropriate representative of the issuer of such Federal
Securities so that the interest on and the principal of the Federal Securities shall be promptly
transmitted, as the same become due from time to time, to the Escrow Agent.
C. All uninvested money held at any time in the Escrow Account shall be
continuously secured by the deposit of Federal Securities in a principal amount and value always
not less than the total amount of uninvested money in the Escrow Account:
(1) In any branch of the Federal Reserve Bank; or
(2) In any commercial bank which:
(a) Is a state or national bank or trust company,
(b) Is a member of the Federal Deposit Insurance Corporation,
(c) Is a member of the Federal Reserve System,
(d) Has a capital and surplus of $10,000,000.00 or more,
(e) Is exercising full and complete trust powers, and
(f) May be located in the State or without the State (a “trust
bank”); or
(3) In any branch of the Federal Reserve Bank and in one or more trust
banks (or any combination thereof).
D. Such Federal Securities so held as a pledge shall be used whenever
necessary to enable the payment of the Refunded Certificate Requirements, to the extent other
moneys are not transferred or caused to be transferred for such purpose by the Escrow Agent.
E. Any Federal Securities (except as they may be held as book-entries) and
any uninvested moneys accounted for in the Escrow Account may from time to time be placed
by the Escrow Agent for safekeeping wholly or in part in any such trust bank, only if prior to any
such transfer the Town consents thereto in writing.
ATTACHMENT F
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F. Each such trust bank holding any Federal Securities accounted for in the
Escrow Account or any uninvested moneys accounted for therein shall be furnished by the
Escrow Agent with a copy of this Escrow Agreement prior to such deposit.
G. By the acceptance of such Federal Securities or such uninvested moneys
each such trust bank shall be bound in the same manner as the Escrow Agent, as herein provided.
H. The Escrow Agent, however, shall remain solely responsible to the Town:
(1) For any investment of moneys pursuant to Section 1 hereof,
(2) For transfers of moneys pursuant to Section 7 hereof,
(3) For the termination of the Escrow Account pursuant to Section 8
hereof,
(4) For the periodic status reports pursuant to Section 10 hereof, and
I. Notwithstanding the liabilities of the Escrow Agent stated in paragraph H
of this Section, the Escrow Agent may cause any one, all, or any combination of the duties stated
in paragraph H to be performed on its behalf by any trust bank.
J. If at any time the Escrow Agent fails to account for any moneys or Federal
Securities held by it or by any such trust bank in the Escrow Account, such moneys and
securities shall be and remain the property of the Town.
K. No money paid into and accounted for in the Escrow Account shall ever
be considered as a banking deposit and neither the Escrow Agent nor any such trust bank shall
have any right or title with respect thereto.
Section 13. Refunding and Defeasance Notice. In order to exercise its option
redeem the Refunded Certificates, the Town has determined to redeem the Refunded Certificates
on the Redemption Date, at a redemption price of 100% of the principal amount thereof plus
accrued interest thereon to the redemption date, without prior redemption premium. In
connection with the refunding and defeasance of the Refunded Certificates, the Escrow Agent
hereby agrees and accepts responsibility for giving the notice of refunding and defeasance of the
Refunded Certificates at the times and in the manner required by the Prior Indenture so that the
Refunded Certificates may be redeemed on the Redemption Date. A form of such notice of
redemption is set forth as Exhibit B hereto.
Section 14. Purchaser’s Responsibility. The Purchaser and owners from time
to time of the Certificates shall in no manner be responsible for the application or disposition of
the proceeds thereof or any moneys or Federal Securities accounted for in the Escrow Account.
This clause shall not relieve the Escrow Agent (if it is an owner of the Certificates), in its
capacity as Escrow Agent, from its duties under this Escrow Agreement.
ATTACHMENT F
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Section 15. Amendment.
A. The Certificates shall be executed and delivered in reliance upon this
Escrow Agreement and except as herein provided this Escrow Agreement shall be irrevocable
and not subject to amendment after any of the Certificates shall have been executed and
delivered.
B. The provisions of this Escrow Agreement may be amended, waived or
modified upon approval of the owners of all of the then outstanding Refunded Certificates. The
provisions of this Escrow Agreement also may be amended, waived or modified without the
approval of such owners, for one or more of the following purposes:
(1) to cure any ambiguity, or to cure, correct or supplement any formal
defect or omission or inconsistent provision contained in this Escrow Agreement;
(2) to pledge additional revenues, properties or collateral as security
for the Refunded Certificates; or
(3) to deposit additional moneys or Federal Securities into the Escrow
Account.
Notwithstanding any other provision hereof, no amendment, modification or
waiver shall be effective if it is materially prejudicial to the owners of the Refunded Certificates
or affects the exclusion of the interest on the Refunded Certificates or the Certificates from gross
income for federal income tax purposes, unless such amendment, waiver or modification is
approved by the owners of all of the then outstanding Refunded Certificates and the Certificates
affected thereby.
Section 16. Exculpatory Provisions.
A. The duties and responsibilities of the Escrow Agent are limited to those
expressly and specifically stated in this Escrow Agreement.
B. The Escrow Agent shall not be liable or responsible for any loss resulting
from any investment or reinvestment made pursuant to this Escrow Agreement and made in
compliance with the provisions hereof.
C. The Escrow Agent shall not be liable for any act done or step taken or
omitted by it or for any mistake of fact or law or for anything which it may do or refrain from
doing, except for its negligence or its default in the performance of any obligations imposed
upon it hereunder.
D. The Escrow Agent shall neither be under any obligation to inquire into or
be in any way responsible for the performance or nonperformance by the Town of any of its
obligations contained in this Escrow Agreement, in the Ordinance, in the Certificates, in the
Refunded Certificates, or in any proceedings taken in connection therewith (other than its
responsibilities as trustee under such instruments.
ATTACHMENT F
- 10 -
E. Nothing in this Escrow Agreement creates any obligation or liabilities on
the part of the Escrow Agent to anyone other than the Town and the owners of the Refunded
Certificates.
F. The Town acknowledges that to the extent regulations of the Comptroller
of the Currency or other applicable regulatory entity grant a right to receive brokerage
confirmations of security transactions relating to the funds held pursuant to this Agreement, the
Town waives receipt of such confirmations, to the extent permitted by law. The Escrow Agent
shall furnish a statement of security transactions on its regular monthly reports.
Section 17. Time of Essence. Time is of the essence in the performance of the
obligations from time to time imposed upon the Escrow Agent by this Escrow Agreement.
Section 18. Successors.
A. Whenever in this Escrow Agreement the Town or the Escrow Agent is
named or is referred to, such provision is deemed to include any successor of the Town or the
Escrow Agent, respectively, immediate or intermediate, whether so expressed or not.
B. All of the stipulations, obligations and agreements by or on behalf of and
other provisions for the benefit of the Town or the Escrow Agent contained in this Escrow
Agreement:
(1) Shall bind and inure to the benefit of any such successor, and
(2) Shall bind and inure to the benefit of any officer, board, authority,
agent or instrumentality to whom or to which there shall be transferred by or in
accordance with law any relevant right, power or duty of the Town or the Escrow Agent,
respectively, or of its successor.
Section 19. Severability. If any section, paragraph, clause or provision of this
Escrow Agreement shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause or provision shall not affect any of the
remaining provisions of this Escrow Agreement.
Section 20. Electronic Storage. The parties hereto agree that the transaction
described herein may be conducted and related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparties of such original documents
for all purposes, including the filing of any claim, action or suit in the appropriate court of law.
Section 21. Notices. Any notice to be given hereunder shall be delivered
personally or mailed postage prepaid, return receipt requested, to the following addresses:
If to the Town: Town of Avon, Colorado
100 Mikaela
Avon, Colorado 81620
Attention: Finance Director
ATTACHMENT F
- 11 -
If to the Escrow Agent: [ADDRESS]
or to such other address as either party may, by written notice to the other party, hereafter
specify. Any notice shall be deemed to be given upon mailing.
ATTACHMENT F
- 12 -
IN WITNESS WHEREOF, the TOWN OF AVON, COLORADO has caused this
Escrow Agreement to be executed in its name and the seal of the Town affixed and attested by
duly authorized officers thereof; and [ESCROW AGENT] has caused this Escrow Agreement to
be executed in its corporate name by a duly authorized officer thereof, all as of the day and year
first above written.
( S E A L ) TOWN OF AVON, COLORADO
ATTESTED:
__________________________________
Town Clerk
Mayor
[ESCROW AGENT],
as Escrow Agent
Vice President
ATTACHMENT F
A-1
EXHIBIT A
CPA REPORT
ATTACHMENT F
B-1
EXHIBIT B
(form of notice)
NOTICE OF DEFEASANCE AND REFUNDING
TAX-EXEMPT
CERTIFICATE OF PARTICIPATION
SERIES 2010
EVIDENCING A PROPORTIONATE INTEREST IN THE
BASE RENTALS AND OTHER REVENUES UNDER A
LEASE PURCHASE AGREEMENT, DATED AS NOVEMBER 1, 2010, BETWEEN
UMB BANK, N.A., AS TRUSTEE, AS LESSOR,
AND THE TOWN OF AVON, COLORADO, AS LESSEE
CUSIP NOS. 05402R BA0, BE2, BL6
NOTICE IS HEREBY GIVEN that the TOWN OF AVON, COLORADO (the
“Town”) has caused to be deposited in escrow with UMB Bank, n.a., Denver, Colorado (the
“Paying Agent”), refunding Certificate proceeds and other moneys which will be invested
(except for a small initial cash balance remaining uninvested) in certificates of indebtedness,
notes, bonds and similar securities which are direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United States of America to refund,
pay, redeem and discharge all of the outstanding Certificates of Participation, Series 2010,
maturing on and after December 1, 2020, in the aggregate principal amount of $4,300,000 (the
“Refunded Certificates”).
The Refunded Certificates will be called for redemption on December 1, 2020
(the “Redemption Date”) at a price equal to the principal amount thereof, plus accrued interest
thereon, without premium. On the Redemption Date, the principal of such Refunded Certificates
and accrued interest to the Redemption Date will become due and payable at the office of UMB
Bank, n.a., as trustee (the “Trustee”), and thereafter interest will cease to accrue.
According to a report of a firm of certified public accountants, licensed to practice
in Colorado, the escrow, including the known minimum yield from such investments and any
temporary reinvestments and the initial cash balance remaining uninvested, will be fully
sufficient at the time of the deposit, and at all times subsequent, to pay the principal of the
Refunded Certificates and accrued interest thereon to their respective maturity dates or the
Redemption Date, as the case may be.
In compliance with the federal law, the Paying Agent is required to withhold at
the current backup withholding rate a percentage from payments of principal to individuals who
fail to furnish valid Taxpayer Identification Numbers. A completed Form W-9 should be
presented with your certificate.
ATTACHMENT F
B-2
51929613.v1
The above-referenced CUSIP numbers were assigned to this issue by Standard &
Poor’s Corporation and are intended solely for certificate holders’ convenience. Neither the
Paying Agent, the Corporation, nor the Town shall be responsible for selection or use of the
CUSIP numbers, nor is any representation made as to their correctness on the Refunded
Certificates or as indicated in any redemption notice.
Dated April [__], 2020.
UMB BANK, N.A.,
Acting as Trustee for the Refunded
Certificates
ATTACHMENT F
(970) 748-4055 swright@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Asst. Town Manager
RE: Engagement Letter with Butler Snow as Bond Counsel
DATE: March 10, 2020
SUMMARY: A proposed engagement letter with Butler Snow as bond counsel for the proposed
refinancing of the 2010 Certificates of Participation is presented for your consideration and approval. The
estimated fee for the engagement is $25,000 and is paid at closing out of bond proceeds.
PROPOSED MOTION: "I move to approve the engagement letter with Butler Snow as bond counsel for the
proposed refinancing of the 2010 Certificates of Participation"
Thank you, Scott
ATTACHMENTS:
Attachment A - Butler Snow Engagement Letter
1801 California Street
Suite 5100
Denver, Colorado 80202
DEE P. WISOR
(720) 330-2357
Dee.Wisor@ButlerSnow.com
T (720) 330-2300
F (720) 330-2301
www.butlersnow.com
BUTLER SNOW LLP
February 15, 2020
Town of Avon
PO Box 975
Avon, CO 81620
Attn: Scott Wright, Asst. Town Manager / Finance Director
RE: Proposed Lease Purchase Agreement and Certificates of Participation
Dear Members of the Town Council:
We are pleased to confirm our engagement as bond counsel to the Town of
Avon, Colorado (the “Town”). We appreciate your confidence in us and will do our best to
continue to merit it.
In establishing our attorney-client relationship, current practice standards
dictate that we set forth in writing (and in some detail) the elements of our mutual
understanding. While some of the matters covered in this engagement letter will never be
relevant or of concern between us, we hope you will understand that as attorneys and
counselors it is our natural function to try to make communication clear and complete, and to
anticipate and resolve questions before they arise. We also believe that the performance of
our services may require your effort and cooperation. Consequently, the better we each
understand our respective roles, responsibilities and contributions, the more efficient,
effective and economical our work for you can be.
Personnel
This letter sets forth the role we propose to serve and the responsibilities we
propose to assume as bond counsel to the Town in connection with the a lease purchase
agreement financing, including the possible issuance of any related certificates of
participation (collectively, the “Obligations”). Dee Wisor and Kim Crawford will be
principally responsible for the work performed by Butler Snow LLP on your behalf. Where
appropriate, certain tasks may be performed by other attorneys or paralegals. At all times,
however, Dee will coordinate all work completed for the Town.
Scope of Employment
Bond Counsel is engaged as a recognized expert whose primary responsibility
is to render an objective legal opinion with respect to the authorization of securities like the
Obligations. As your bond counsel, we will: examine applicable law; consult with the parties
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 2
to the transaction prior to the execution of the Obligations; prepare customary authorizing and
operative documents, and closing certificates; review a certified transcript of proceedings; and
undertake such additional duties as we deem necessary to render the opinion. Subject to the
completion of proceedings to our satisfaction, we will render our opinion relating to the
validity of the Obligations, the enforceability of the security for the Obligations, and, to the
extent applicable, the exclusion of the interest on the Obligations (subject to certain
limitations which may be expressed in the opinion) from gross income for federal income tax
purposes and for Colorado income tax purposes. We understand that the Obligations are to be
privately placed with a commercial bank so no offering document or official statement is
being prepared and we are not undertaking any responsibility for disclosing information about
the Town or its financial affairs to the purchaser of the Obligations.
In delivering our opinion, we will rely upon the certified proceedings and other
certifications of public officials and other persons furnished to us without undertaking to
verify the same by independent investigation. Our opinion will be addressed to the Town and
will be executed and delivered by us in written form on the date the Obligations are
exchanged for their purchase price (the “Closing”). The opinion will be based on facts and
law existing as of their date.
Our services are limited to those contracted for explicitly herein; the Town’s
execution of this letter constitutes an acknowledgment of those limitations. Specifically, but
without implied limitation, our responsibilities do not include any representation by Butler
Snow LLP in connection with any IRS audit, SEC enforcement action or any litigation
involving the Town or the Obligations, or any other matter. Neither do we assume
responsibility for the preparation of any collateral documents (e.g., environmental impact
statements) which are to be filed with any state, federal or other regulatory agency. Nor do
our services include financial advice (including financial advice about the structure of
Obligations) or advice on the investment of funds related to the Obligations.
Representation of the Town
In performing our services, the Town will be our client and an attorney-client
relationship will exist between us. We will represent the interests of the Town rather than the
Town Council or its individual members. We will work closely with the Town Attorney and
will rely on the opinion of the Town Attorney with regard to specific matters, including
pending litigation. We assume that other parties to the transaction will retain such counsel as
they deem necessary and appropriate to represent their interests in this transaction.
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 3
Conflicts of Interest
Our firm sometimes represents, in other unrelated transactions, certain of the
financial institutions that may be involved in this transaction, such as underwriters, credit
enhancers, and banks. We do not believe that any of these representations will materially
limit or adversely affect our ability to represent the Town in connection with the Obligations,
even though such representations may be characterized as adverse under the Colorado Rules
of Professional Conduct (the “Rules”). In any event, during the term of our engagement
hereunder, we will not accept a representation of any of these parties in any matter in which
the Town is an adverse party. However, pursuant to the Rules, we do ask that you consent to
our representation of such parties in transactions that do not directly or indirectly involve the
Town. Your execution of this letter will signify the Town’s prospective consent to such
representations in matters unrelated to the Town while we are serving as bond counsel
hereunder.
Fee Arrangement
Based upon: (i) our current understanding of the terms, structure, size and
schedule of the financing, (ii) the duties we will undertake pursuant to this letter, (iii) the time
we anticipate devoting to the financing, and (iv) the responsibilities we assume, we estimate
that our fee for this engagement will be $25,000. Such fee may vary: (i) if the principal
amount of the Obligations actually issued increases significantly, (ii) if material changes in
the structure of the financing occur, or (iii) if unusual or unforeseen circumstances arise which
require a significant increase in our time or our responsibilities. If, at any time, we believe
that circumstances require an adjustment of our original fee estimate, we will consult with
you.
Our fees are usually paid at Closing out of proceeds of the Obligations. We
customarily do not submit any statement until the Closing, unless there is a substantial delay
in completing the financing. We understand and agree that our fees will be paid at Closing
out of proceeds. If the financing is not consummated, we understand and agree that we will
not be paid.
Termination of Engagement
Our fees for this engagement contemplate compensation for usual and
customary services as bond counsel as described above. Upon delivery of the opinion, our
responsibilities as bond counsel will terminate with respect to this financing, and our
representation of the Town and the attorney-client relationship created by this engagement
letter will be concluded. Specifically, but without implied limitation, we do not undertake to
provide continuing advice to the Town or to any other party to the transaction. Many post-
issuance events may affect the Obligations, the tax-exempt status of interest on the
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 4
Obligations, or liabilities of the parties to the transaction. Such subsequent events might
include a change in the project to be financed with proceeds, a failure by one of the parties to
comply with its contractual obligations (e.g., rebate requirements, continuing disclosure
requirements), an IRS audit, an SEC enforcement action, or a change in federal or state law.
Should the Town seek the advice of bond counsel on a post-closing matter or seek other,
additional legal services, we would be happy to discuss the nature and extent of our separate
engagement at that time.
Document Retention
At or within a reasonable period after Closing, we will review the file to determine
what materials should be retained as a record of our representation and those that are no
longer needed. We will provide you with a copy of the customary transcript of documents
after Closing and will return any original documents obtained from you (if a copy is not
included in the transcript). Our document retention policy is attached hereto.
Publicity Concerning This Matter.
Often matters such as this are of interest to the public. In addition, many clients desire
favorable publicity. Therefore, we may publish information on this matter (including but not
limited to our firm website) unless you instruct us not to do so. In any event, we will not
divulge any non-public information regarding this matter.
Approval
If the other foregoing terms of this engagement are acceptable to you, please so
indicate by returning a copy of this letter signed by the officer so authorized, keeping a copy
for your files.
We appreciate this opportunity to serve as your bond counsel and look forward
to a mutually satisfactory and beneficial relationship.
BUTLER SNOW LLP
By:
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 5
ACCEPTED AND APPROVED:
TOWN OF AVON, COLORADO
By: ____________________________________
Title: ___________________________________
Date: __________________________________
DPW/jw
Enclosures
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 6
EXHIBIT A
NOTICE TO CLIENTS OF BUTLER SNOW’S
RECORD RETENTION & DESTRUCTION POLICY FOR CLIENT FILES
Butler Snow maintains its client files electronically. Ordinarily, we do not keep
separate paper files. We will scan documents you or others send to us related to your matter
to our electronic file for that matter and will ordinarily retain only the electronic version while
your matter is pending. Unless you instruct us otherwise, once such documents have been
scanned to our electronic file, we will destroy all paper documents provided to us. If you
send us original documents that need to be maintained as originals while the matter is
pending, we ordinarily will scan those to our client file and return the originals to you for
safekeeping. Alternatively, you may request that we maintain such originals while the matter
is pending. If we agree to do that, we will make appropriate arrangements to maintain those
original documents while the matter is pending.
At all times, records and documents in our possession relating to your representation
are subject to Butler Snow’s Record Retention and Destruction Policy for Client Files.
Compliance with this policy is necessary to fulfill the firm’s legal and ethical duties and
obligations, and to ensure that information and data relating to you and the legal services we
provide are maintained in strict confidence at all times during and after the engagement. All
client matter files are subject to these policies and procedures.
At your request, at any time during the representation, you may access or receive
copies of any records or documents in our possession relating to the legal services being
provided to you, excluding certain firm business or accounting records. We reserve the right
to retain originals or copies of any such records of documents as needed during the course of
the representation.
Unless you instruct us otherwise, once our work on this matter is completed, we will
designate your file as a closed file on our system and will apply our document retention policy
then in effect to the materials in your closed files. At that time, we ordinarily will return to
you any original documents we have maintained in accordance with the preceding paragraph
while the matter was pending. Otherwise, we will retain the closed file materials for our
benefit and subject to our own policies and procedures concerning file retention and
destruction. Accordingly, if you desire copies of any documents (including correspondence,
e-mails, pleadings, contracts, agreements, etc.) related to this matter or generated while it was
pending, you should request such copies at the time our work on this matter is completed.
You will be notified and given the opportunity to identify and request copies of such
items you would like to have sent to you or someone else designated by you. You will have
ATTACHMENT A
Town of Avon, Colorado
February 15, 2020
Page 7
30 days from the date our notification is sent to you to advise us of any items you would like
to receive. You will be billed for the expense of assimilating, copying and transmitting such
records. We reserve the right to retain copies of any such items as we deem appropriate or
necessary for our use. Any non-public information, records or documents retained by Butler
Snow and its employees will be kept confidential in accordance with applicable rules of
professional responsibility.
Any file records and documents or other items not requested within 30 days will
become subject to the terms of Butler Snow’s Record Retention and Destruction Policy for
Client Files and will be subject to final disposition by Butler Snow at its sole discretion.
Pursuant to the terms of Butler Snow’s Record Retention and Destruction Policy for Client
Files, all unnecessary or extraneous items, records or documents may be removed from the
file and destroyed. The remainder of the file will be prepared for closing and placed in
storage or archived. It will be retained for the period of time established by the policy for
files related to this practice area, after which it will be completely destroyed. This includes all
records and documents, regardless of format.
While we will use our best efforts to maintain confidentiality and security over all file
records and documents placed in storage or archived, to the extent allowed by applicable law,
Butler Snow specifically disclaims any responsibility for claimed damages or liability arising
from damage or destruction to such records and documents, whether caused by accident;
natural disasters such as flood, fire, or wind damage; terrorist attacks; equipment failures;
breaches of Butler Snow’s network security; or the negligence of third-party providers
engaged by our firm to store and retrieve records.
ATTACHMENT A
(970) 748-4055 swright@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Asst. Town Manager
RE: Engagement Letter with Piper Sandler as Placement Agent
DATE: March 10, 2020
SUMMARY: A proposed engagement letter with Piper Sandler as placement agent for the proposed
refinancing of the 2010 Certificates of Participation is presented for your consideration and approval. The
estimated fee for the engagement is a 1% sales commission and is paid at closing out of bond proceeds.
The fee is not payable in the event a closing does not occur.
PROPOSED MOTION: "I move to approve the engagement letter with Piper Sandler as placement agent
for the proposed refinancing of the 2010 Certificates of Participation"
Thank you, Scott
ATTACHMENTS:
Attachment A - Piper Sandler Engagement Letter
1200 17TH STREET, SUITE 1250
DENVER, CO 80202-5856
P 303 405-0865 | TF 800 274-4405 | F 303 405-0891
Piper Sandler & Co. Since 1895.
Member SIPC and NYSE.
Scott Wright February 19, 2020
Assistant Town Manager
Town of Avon
100 Mikaela Way
PO Box 975
Avon, CO 81620
Re: Placement Agent Engagement Letter
Series 2020 Certificates of Participation Refunding Issue (the “Securities”)
Dear Scott,
This letter confirms the agreement (the “Agreement”) between Piper Sandler & Co. (“Piper Sandler” or “we”
or “us”) and the Town of Avon (the “Issuer” or “you”) as follows:
1. Engagement. The Issuer engages Piper Sandler to act as its exclusive representative to assist
you on a best efforts basis in placing the proposed private transaction (the “Transaction”) of the
above-referenced Securities. You acknowledge and agree that Piper Sandler’s engagement
hereunder is not an agreement by Piper Sandler or any of its affiliates to underwrite, place or
purchase the Securities or otherwise provide any financing to you. We may decline to participate
in the Transaction if we reasonably determine that the Transaction has become impractical or
undesirable. W e accept this engagement upon the terms and conditions set forth in this agreement.
As currently contemplated, the Transaction will be a placement of the Securities with gross
proceeds of approximately $4,100,000. You may in your discretion postpone, modify, abandon or
terminate the Transaction prior to closing. Sale and delivery of the Securities by the Issuer and
purchase by the purchasers will occur on the day of closing (“Closing Date”).
During the term of our engagement, we will as directed by you and as appropriate to the
Transaction, provide the following services:
(a) consult with you in planning and implementing the Transaction;
(b) assist you in reviewing any transaction materials (the “Transaction Materials”) we mutually
agree are beneficial or necessary to the consummation of the Transaction;
(c) assist you in preparing for due diligence conducted by potential investors;
(d) identify potential investors and use our reasonable commercial efforts to assist in arranging
sales of the Securities to investors;
(e) Assist you in negotiating definitive documentation.
2. Fees and Expenses.
For our services, you agree to pay us a selling commission of 1.0% of the gross proceeds received
by you on all sales of the Securities payable by wire transfer of immediately available funds at
closing. For avoidance of doubt, the fee shall not be payable in the event a closing of the
Transaction does not occur.
ATTACHMENT A
Page 2
3. Representations, Warranties and Agreements of the Issuer.
You represent and warrant to, and agree with us, that:
(a) the Securities will be sold by you in compliance with the requirements for exemptions from
registration or qualification of, and otherwise in accordance with, all federal and state
Securities laws and regulations;
(b) all financial projections that have or will be made available to Piper Sandler by you or any
of your representatives in connection with the Transaction (the “Projections”) have been
and will be prepared in good faith and will be based upon assumptions believed by you to
be reasonable (it being understood that projections by their nature are inherently uncertain
and no assurances are being given that the results reflected in the Projections will be
achieved);
(c) you will make available to us and each purchaser such documents and other information
which we and each purchaser reasonably deem (the “Transaction Materials”) appropriate
and will provide access to your officers, directors, employees, accountants, counsel and
other representatives and will provide each purchaser and us opportunities to ask
questions and receive answers from these persons; it being understood that we and each
purchaser will rely solely upon such information supplied by you and your representatives
without assuming any responsibility for independent investigation or verification thereof;
(d) you agree to be responsible for the accuracy and completeness of any Transaction
Materials to the extent of federal securities laws applicable to the Transaction. You agree
to notify us promptly of any material adverse changes, or development that may lead to
any material adverse change, in your business, properties, operations, financial condition
or prospects and concerning any statement contained in any Transaction Material, or in
any other information provided to us, which is not accurate or which is incomplete or
misleading in any material respect;
(e) On the Closing Date, you will deliver or cause to be delivered to the Placement Agent:
(1.) The Opinion of Bond Counsel to the Issuer, dated the Closing Date relating to:
(i) the validity of the Securities;
(ii) exemption from registration and qualification under federal and state securities
law; and
(iii) the tax-exempt status of the Securities, together with a reliance letter from
such counsel, dated the Closing Date and addressed to us and in a form
acceptable to us.
4. Other Matters Relating to Our Engagement. You acknowledge that you have retained us solely
to provide the services to you as set forth in this agreement. As placement agent, Piper Sandler
may provide advice concerning the structure, timing, terms, and other similar matters concerning
the Transaction. You acknowledge and agree that: (i) the primary role of Piper Sandler as a
placement agent, is to place securities to investors in an arms-length commercial transaction and
that Piper Sandler has financial and other interests that differ from your interests (ii) Piper Sandler
is not acting as a municipal advisor, financial advisor or fiduciary to you or any other person or
entity and has not assumed any advisory or fiduciary responsibility to you with respect to the
transaction contemplated herein and the discussions, undertakings and proceedings leading
thereto (irrespective of whether Piper Sandler has provided other services or is currently providing
other services to you on other matters) (iii) the only obligations Piper Sandler has to you with
respect to the transaction contemplated hereby expressly are set forth in this agreement and (iv)
ATTACHMENT A
Page 3
you have consulted your own legal, accounting, tax, financial and other advisors, as applicable, to
the extent deemed appropriate in connection with the transaction contemplated herein.
5. Disclosure. Attached to this letter are regulatory disclosures required by the Securities and
Exchange Commission and the Municipal Securities Rulemaking Board to be made by us at this
time because of this engagement. We may be required to send you additional disclosures regarding
the material financial characteristics and risks of such transaction or describing those conflicts. At
that time, we also will seek your acknowledgement of receipt of any such additional disclosures. It
is our understanding that you have the authority to bind the Issuer by contract with us, and that you
are not a party to any conflict of interest relating to the Securities. If our understanding is incorrect,
please notify the undersigned immediately.
6. Termination. You or we may terminate our engagement under this agreement, with or without
cause, upon ten days’ written notice to the other party. The fee, expense reimbursement, your
representations, warranties and agreements and miscellaneous provisions of this agreement will
survive any termination of our engagement under this agreement.
7. Section Headings. Section headings contained herein are for convenience of reference only and
are not part of this agreement.
8. Amendment. This agreement may be amended only by a written instrument executed by each of
the Parties. The terms of this agreement may be waived only by a written instrument executed by
the party waiving compliance.
9. Entire Agreement. This agreement embodies the entire agreement and understanding between
you and us and supersedes all prior agreements and understandings relating to the subject matter
of this agreement.
10. No Assignment. This agreement has been made by the Issuer and Piper Sandler, and no other
person shall acquire or have any right under or by virtue of this agreement.
11. Governing Law. This agreement, and all claims or causes of action (whether in contract or tort)
that may be based upon, arise out of or relate to this agreement or the negotiation, execution or
performance of this agreement, will be governed by and construed in accordance with the laws of
Colorado. You and we hereby waive all right to trial by jury in any action, proceeding, or
counterclaim (whether based upon contract, tort or otherwise) in connection with any dispute arising
out of this agreement or any matters contemplated by this agreement.
12. Consent to Jurisdiction; Service of Process. The parties each hereby (a) submits to the
jurisdiction of any state or federal court sitting in the City and County of Denver, State of Colorado
for the resolution of any claim or dispute with respect to or arising out of or relating to this agreement
or the relationship between the parties (b) agrees that all claims with respect to such actions or
proceedings may be heard and determined in such court, (c) waives the defense of an inconvenient
forum, (d) agrees not to commence any action or proceeding relating to this agreement other than
in a state or federal court sitting in the City and County of Colorado, State of Colorado and (e)
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Each party hereto irrevocably consents to service of process in the manner provided for notices in
Section 16. Nothing in this agreement will affect the right of any party to this agreement to serve
process in any other manner permitted by law.
ATTACHMENT A
Page 4
13. Effectiveness. This agreement shall become effective upon its execution by duly authorized
officials of all parties hereto and shall be valid and enforceable from and after the time of such
execution.
14. Severability. In the event any provision of this agreement shall be held invalid or unenforceable
by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable
any other provision hereof. You and us will endeavor in good faith negotiations to replace the invalid
or unenforceable provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid or unenforceable provisions.
15. Counterparts. This agreement may be executed in several counterparts (including counterparts
exchanged by email in PDF format), each of which shall be an original and all of which shall
constitute but one and the same instrument.
16. Notices. Any notice required or permitted to be given under this agreement shall be given in
writing and shall be effective from the date sent by registered or certified mail, by hand, facsimile
or overnight courier to the addresses set forth on the first page of this agreement with a copy sent
to the General Counsel of such Party.
17. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
Please confirm that the foregoing correctly and completely sets forth our understanding by signing and
returning to us the enclosed duplicate of this engagement agreement.
Sincerely,
________________________________
P. Jonathan Heroux
Managing Director
Public Finance Investment Banking
Piper Sandler & Co.
1200 17th Street, Suite 1250
Denver, CO 80202
303 405-0848
Pjonathan.heroux@psc.com
Acknowledgement and Approval of Engagement
and Receipt of Appendix A Disclosures
________________________________
Scott Wright, Assistant Town Manager
Town of Avon
Date: ___________________________
ATTACHMENT A
Appendix A – G-17 Disclosure
We are providing you with certain disclosures relating to the Bonds as required by the Municipal Securities
Rulemaking Board (MSRB) Rule G-17 in accordance with MSRB Notice 2012-25 (May 7, 2012)1. Under
new federal regulations, all underwriters and placement agents are now required to send the following
disclosures to you (as the Issuer of the Bonds) in order to clarify the role of a placement agent and other
matters relating to a private placement of the Bonds.
Piper Sandler intends to serve as a placement agent respecting the Bonds and not as a financial advisor
or municipal advisor to you. As part of our services as a placement agent, Piper Sandler may provide
advice concerning the structure, timing, terms, and other similar matters concerning an issue of municipal
securities that Piper Sandler is placing.
Our Role as Placement Agent:
In serving as placement agent for the Bonds, these are some important disclosures that clarify our role and
responsibilities:
(i) MSRB Rule G-17 requires us to deal fairly at all times with both municipal issuers and investors;
(ii) Our primary role in this transaction is to facilitate the sale and purchase of municipal securities
between you and one or more investors for which we will receive compensation;
(iii) Unlike a municipal advisor, we do not have a fiduciary duty to you under the federal securities
laws and are, therefore, not required by federal law to act in your best interests without regard
to our own financial or other interests;
(iv) We have a duty to arrange the purchase securities from you at a fair and reasonable price, but
must balance that duty with our duty to arrange the sale to investors at prices that are fair and
reasonable; and
(v) In the event an official statement is prepared, we will review the official statement for your
securities in accordance with, and as part of, our responsibilities to investors under the federal
securities laws, as applied to the facts and circumstances of the transaction.
Our Compensation:
As placement agent, compensation will be by a fee that was negotiated and entered into in connection with
the issuance of the Bonds. Payment or receipt of the underwriting fee, discount or placement agent fee will
be contingent on the closing of the transaction and the amount of the fee or discount may be based, in
whole or in part, on a percentage of the principal amount of the Bonds. While this form of compensation is
customary in the municipal securities market, it presents a conflict of interest since the underwriter or
placement agent may have an incentive to recommend to the Issuer a transaction that is unnecessary or
to recommend that the size of the transaction be larger than is necessary.
Risk Disclosures:
In accordance with the requirements of MSRB Rule G-17, attached as Appendix B is a description of the
material aspects of a typical fixed rate offering, including the Bonds. This letter may be later supplemented
if the material terms of the Bonds change from what is described here.
If you have any questions or concerns about these disclosures, please make those questions or concerns
known immediately to me. In addition, you should consult with your own financial, legal, accounting, tax
and other advisors, as applicable, to the extent you deem appropriate.
1 Interpretive Notice Concerning the Application of MSRB Rule G-17 to Underwriters of Municipal Securities (effective
August 2, 2012).
ATTACHMENT A
Appendix B – Risk Disclosures
The following is a general description of the financial characteristics and security structures of fixed rate
municipal bonds (“Fixed Rate Bonds”), as well as a general description of certain financial risks that you
should consider before deciding whether to issue Fixed Rate Bonds.
Financial Characteristics
Maturity and Interest. Fixed Rate Bonds are interest-bearing debt securities issued by state and
local governments, political subdivisions and agencies and authorities. Maturity dates for Fixed
Rate Bonds are fixed at the time of issuance and may include serial maturities (specified principal
amounts are payable on the same date in each year until final maturity), one or more term
maturities (specified principal amounts are payable on each term maturity date), a combination of
serial and term maturities, or bullet maturities, in which all the Bonds mature on a single maturity
date The final maturity date typically will range between 10 and 30 years from the date of issuance.
Interest on the Fixed Rate Bonds typically is paid semiannually at a stated fixed rate or rates for
each maturity date.
Redemption. Fixed Rate Bonds may be subject to optional redemption, which allows you, at your
option, to redeem some or all of the bonds on a date prior to scheduled maturity, such as in
connection with the issuance of refunding bonds to take advantage of lower interest rates. Fixed
Rate Bonds will be subject to optional redemption only after the passage of a specified period of
time, often approximately ten years from the date of issuance, and upon payment of the redemption
price set forth in the bonds, which may include a redemption premium. You will be required to send
out a notice of optional redemption to the holders of the bonds, usually not less than 30 days prior
to the redemption date. Fixed Rate Bonds with term maturity dates also may be subject to
mandatory sinking fund redemption, which requires you to redeem specified principal amounts of
the bonds annually in advance of the term maturity date. The mandatory sinking fund redemption
price is 100% of the principal amount of the bonds to be redeemed.
Other Financial Characteristics Specific to Direct Purchases of Bonds. Purchasers of bonds in a
direct purchase, private placement context sometimes ask for certain financial terms not typically
included in publically offered bonds. For example, after a stated period of time (typically ten years
or less), the purchaser may require that the interest rate on the Bonds be reset at a higher rate or
require that the entire notional amount of the Bonds become due, which may require the refinancing
of the Bonds in unfavorable market conditions. See section entitled “Refinancing Risk” below.
Financial terms could include other provisions that raise your interest rate during the term of the
bonds. For example, a margin rate clause (also known as “gross up” or “increased cost”) triggers
an automatic interest rate increase should federal corporate tax rates be reduced, allowing the
purchaser to offset the decreased value of the bonds. Other potential interest rate increases could
include a higher rate triggered by an event of default (a “default rate”), an increase in the interest
rate if there is a determination that interest on the bonds is includable in gross income for federal
income tax purposes or a higher interest rate if the instrument fails to be bank-qualified. For any of
these scenarios, the resulting interest rate may or not be capped by a maximum interest rate. If a
rate cap applies, purchasers may ask that any interest that would have accrued but for a rate cap
be deferred and paid out in later years. Another example of terms that may apply in a private
placement include acceleration clauses, which may permit the bank purchaser to request
immediate payment of outstanding principal in an event of default or otherwise force a restructuring
of the bonds to a more accelerated amortization schedule. Lenders may also seek provisions
requiring that any interest that would have accrued but for legal maximum rate restrictions to be
deferred and paid if and when the applicable rate goes below such maximum rate (commonly
known as a “clawback” or “recapture provision”).
These features could impact your liquidity, debt service coverage ratios or force you to divert funds
to pay debt service on the Bonds that were intended for other purposes. Unexpected increases in
ATTACHMENT A
Page 7
interest rates could also impact your outstanding credit rating.
Security
Payment of principal of and interest on a municipal security, including Fixed Rate Bonds, may be backed
by various types of pledges and forms of security, some of which are described below.
General Obligation Bonds
“General obligation bonds” are debt securities to which your full faith and credit is pledged to pay
principal and interest. If you have taxing power, generally you will pledge to use your ad valorem
(property) taxing power to pay principal and interest. Ad valorem taxes necessary to pay debt
service on general obligation bonds may not be subject to state constitutional property tax millage
limits (an unlimited tax general obligation bond). The term “limited” tax is used when such limits
exist.
General obligation bonds constitute a debt and, depending on applicable state law, may require
that you obtain approval by voters prior to issuance. In the event of default in required payments
of interest or principal, the holders of general obligation bonds have certain rights under state law
to compel you to impose a tax levy.
Revenue Bonds
“Revenue bonds” are debt securities that are payable only from a specific source or sources of
revenues. Revenue bonds are not a pledge of your full faith and credit and you are obligated to
pay principal and interest on your revenue bonds only from the revenue source(s) specifically
pledged to the bonds. Revenue bonds do not permit the bondholders to compel you to impose a
tax levy for payment of debt service. Pledged revenues may be derived from operation of the
financed project or system, grants or excise or other specified taxes. Generally, subject to state law
or local charter requirements, you are not required to obtain voter approval prior to issuance of
revenue bonds. If the specified source(s) of revenue become inadequate, a default in payment of
principal or interest may occur. Various types of pledges of revenue may be used to secure interest
and principal payments on revenue bonds. The nature of these pledges may differ widely based
on state law, the type of issuer, the type of revenue stream and other factors.
General Fund Obligations
“General Fund Obligations” are debt securities that are payable from an issuer’s general fund and
are not secured by a specific tax levy like a general obligation bond or a specific revenue pledge
like a revenue bond. General fund obligations come in many varieties and may be a continuing
obligation of the general fund or may be subject to annual appropriation. Often general fund
obligations are issued in the form of certificates of participation in a lease obligation of the issuer.
Financial Risk Considerations
Certain risks may arise in connection with your issuance of Fixed Rate Bonds, including some or all of the
following:
Risk of Default and Fiscal Stress
You may be in default if the funds pledged to secure your bonds are not sufficient to pay debt
service on the bonds when due. The consequences of a default may be serious for you and may
include the exercise of available remedies against you on behalf of the holders of the bonds.
Depending on state law, if the bonds are secured by a general obligation pledge, you may be
ordered by a court to raise taxes or other budgetary adjustments may be necessary to enable you
to provide sufficient funds to pay debt service on the bonds. If the bonds are revenue bonds,
subject to applicable state law and the terms of the authorizing documents, you may be required to
take steps to increase the available revenues that are pledged as security for the bonds.
Bonds payable from the general fund, particularly bonds without a defined revenue stream
identified to pay debt service, reduce your flexibility to balance the general fund. Because a fixed
debt service payment is required to be paid regardless of how your general fund is impacted by
ATTACHMENT A
Page 8
revenue losses or by increased expenses, you have less flexibility in the options available to you
in assuring a balanced budget for your general fund.
General Fund Obligations that are Project Based. Some general fund obligations are issued for
projects which are expected to generate revenues that will pay for some or all of the debt service
on the bonds. In the event the project does not generate the anticipated levels of revenues available
for debt service, or, in the extreme case, does not create any revenue available for debt service,
you may need to make payments from other available general fund revenues. This may force you
to reduce other expenditures or to make difficult decisions about how to pay your debt service
obligation while meeting other expenditure needs.
General Fund Obligations that are Subject to Annual Appropriation. Some general fund obligations
require that debt service is subject to annual appropriation by your governing body. If your
governing body decides not to appropriate payments for debt service, your credit ratings may be
negatively impacted and you may be forced to pay a higher interest rate on future debt issuance or
may be unable to access the market for future debt issuance.
For all bonds, a default may negatively impact your credit ratings and may effectively limit your
ability to publicly offer bonds or other securities at market interest rate levels. Further, if you are
unable to provide sufficient funds to remedy the default, subject to applicable state law and the
terms of the authorizing documents, it may be necessary for you to consider available alternatives
under state law, including (for some issuers) state-mandated receivership or bankruptcy. A default
also may occur if you are unable to comply with covenants or other provisions agreed to in
connection with the issuance of the bonds.
Redemption Risk
Your ability to redeem the bonds prior to maturity may be limited, depending on the terms of any
optional redemption provisions. In the event that interest rates decline, you may be unable to take
advantage of the lower interest rates to reduce debt service.
Refinancing Risk
If the financing plan contemplates refinancing some or all of the bonds at maturity (for example, if
there are term maturities, bullet maturities or if a shorter final maturity is chosen than might
otherwise be permitted under the applicable federal tax rules), market conditions, changes to the
credit of the Bonds or changes in law may limit, make more expensive or prevent the refinancing
of those bonds when required.
Reinvestment Risk
You may have proceeds of the bonds to invest prior to the time that you are able to spend those
proceeds for the authorized purpose. Depending on market conditions, you may not be able to
invest those proceeds at or near the rate of interest that you are paying on the bonds, which is
referred to as “negative arbitrage”.
Tax Compliance Risk
The issuance of tax-exempt bonds is subject to a number of requirements under the United States
Internal Revenue Code, as enforced by the Internal Revenue Service (IRS). You must take certain
steps and make certain representations prior to the issuance of tax-exempt bonds. You also must
covenant to take certain additional actions after issuance of the tax-exempt bonds. A breach of
your representations or your failure to comply with certain tax-related covenants may cause the
interest on the bonds to become taxable retroactively to the date of issuance of the bonds, which
may result in an increase in the interest rate that you pay on the bonds or the mandatory redemption
of the bonds. The IRS also may audit you or your bonds, in some cases on a random basis and in
other cases targeted to specific types of bond issues or tax concerns. If the bonds are declared
taxable, or if you are subject to audit, the market price of your bonds may be adversely affected.
Further, your ability to issue other tax-exempt bonds also may be limited.
ATTACHMENT A
970-748-4004 eheil@avon.org
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Councilmembers
FROM: Eric Heil, Town Manager; Paul Wisor, Town Attorney
RE: Avon Deed Restriction Program Work Session
DATE: February 19, 2020
SUMMARY: Housing prices in Avon continue to escalate which increases affordability challenges for persons
who desire to live in Avon. The 2018 Town of Avon Community Housing Plan identifies a deed restriction
purchase program as one method by which Avon could promote affordability and the help permanent
residents purchase a home in Avon. A deed restriction purchase program also expands the permanent pool
of housing for full-time residents. Avon has a substantial stock of multi-family housing which presents greater
opportunities for creating more Community Housing stock compared to constructing new Community Housing
projects. “Community Housing” is a term defined in the Avon Municipal Code which means housing that is
subject to a deed restriction enforceable by the T own and which limits the usage of a residence to full -time
residents.
This report outlines the background behind deed restricted purchase programs, including the Vail InDeed
program, discusses the provisions of a proposed Avon Deed Restricted Program and outlines policy
considerations for Council. Council input and direction is requested.
BACKGROUND: Since the end of the Great Recession, jobs and population have been growing much more
rapidly than housing inventory. With the Eagle County Adjusted Median Income (“AMI”) currently at $83,803,
the median price for a home in Avon of $673,000 is nearly twice as expensive as a home most Eagle County
residents can afford. Given the disparity between income levels and housing costs, full-time residents have
difficulty finding affordable housing, employers have difficulty in filling job vacancies, and many employees
choose housing in down valley communities which results greater commute times. In fact, the average
commute for Eagle County is 40 miles per day, which is twice the statewide average.
The 2017 Town of Avon Comprehensive Plan sets forth the goal of achieving a diverse range of housing
densities, styles and types, including rental and for sale, to serve all segments of the population. The 2018
Town of Avon Community Housing Plan specifically identifies a deed restriction program as a strategy to
maintain attainable market rate housing at affordable rates.
VAIL IN-DEED PROGRAM: In 2017, the Town of Vail created its own deed restriction purchase program
known as Vail InDeed (“InDeed”). Under the InDeed program, the Town of Vail pays owners a portion of a
home’s value in exchange for a deed restriction which restricts future use of the unit. In the case of the
InDeed, the deed restriction provides the home must be occupied by people who work at least an annual
average of 30 hours per week in Vail or Eagle County. As of the end of 2019, the Town had spent m ore
than $9 million to purchase 134 deed restrictions.
Under the InDeed program, a typical applicant applies to the Town for funding the purchase of a new
home. The Town of Vail will provide funding between 15% and 18% of the purchase price of the ho me to be
acquired. The average amount provided to an applicant by the Town of Vail through the InDeed program
has been $67,300. However, per Town of Vail policy, the Town of Vail may purchase a restriction for as
much as $200,000. Typically, these funds are used by the applicant for a down payment on a home, but in
some cases applicants use the money for home improvements. There are, however, no restrictions on the
use of funds once the funds are wired to the applicant at closing.
Page 2 of 5
In addition to providing funding in connection with the acquisition of a new home, a current homeowner
can apply to have their home placed into the InDeed program. If the Town of Vail determines it is in the
Town’s best interest to have the unit available only to Eagle County employees, the Town of Vail will purchase
a deed restriction under the same parameters outlined above.
Avon staff has discussed the InDeed program at length with Town of Vail staff as well as lenders,
mortgage brokers, real estate agents, appraisers, applicants and attorneys, and believes the Town of Vail
has established an excellent model for Avon to follow.
FINANCIAL CONSIDERATIONS: Avon’s Affordable Housing Fund was established to receive payments
associated with the Westin Riverfront development as well as The Ascent. Rental revenues from the Town-
owned Sherwood Meadows condominium and the Wildridge Fire Station have also been placed in the
Affordable Housing Fund. The Avon 2020 budget estimates there is approximately $999,000 available for
affordable housing purposes in the Affordable Housing Fund. Some or all of these funds could be dedicated
towards an Avon Deed Restriction Program. For context, the Town of Vail has dedicated $2.5 million in its
2020 budget to go towards deed restriction purchases through the InDeed program.
If all existing Community Housing funds were allocated towards an Avon Deed Restriction
Purchase Program, Avon could afford to purchase approximately 13-15 Deed Restrictions. An
effective Deed Restriction Purchase Program that purchased 30 deed restrictions per year with a goal
to increase the deed restricted housing stock in Avon by 300 residences in ten years would require
approximately $2 million dollars in funding per year.
PROPOSED AVON DEED RESTRICTION PROGRAM: Based off of the InDeed model, Staff has compiled
all the documentation necessary to begin an Avon Deed Restriction Program, including an Application
(Attachment A), Staff Application Evaluation (Attachment B), Deed Restriction Purchase Agreement
(Attachment C), Deed Restriction (Attachment D), Subordination Agreement (Attachment E), and Closing
Instructions (Attachment F).
The Avon Deed Restriction Program documentation provides any Eagle County Employee (the definition
of which mirrors the definition established by Council for the Real Estate Transfer Tax [“RETT”] exemption)
may apply to place their property in the deed restriction program. Businesses that own a property within Avon
and who operate in Eagle County and rent the ir property to its employees who are Eagle County Employees
are also eligible to apply.
After applying to the program, the applicant negotiates with the Town as to the value of the deed
restriction. Once a price is determined, the applicant and the Town execute a Deed Purchase Agreement
for the amount of the deed restriction as well as the deed restriction. Under the proposed form deed
restriction, there is no price appreciation cap. In addition, the owner may occupy the home or rent it to other
individuals so long as one or more Eagle County Employees occupy the residence. However, short term
rentals and use of the property as a second home is prohibited.
The property may not be sold or otherwise transferred to anyone other than an Eagle County Employee
or an Eagle County business renting to Eagle County Employees. The seller must notify the Town it intends
to sell its deed restricted unit, and the Town must confirm the proposed buyer is eligible to purchase under
the terms of the deed restriction. It is important to remember the deed restriction survives the transfer and
remains with the property forever.
Page 3 of 5
Among other things, an owner is in default under the deed restriction in the event the owner conveys the
property to an individual not eligible to own the property under the deed restriction, transferring the property
prior to obtaining the Town’s certification of the transfer, failing to rent the property in accordance with the
deed restriction or failing to make applicable mortgage payments. In the event Staff finds an owner in default
under the deed restriction, the owner has sixty-five (65) days to cure the default, and may appeal to Town
Council. The Town may pursue specific performance and other remedies at law in the event of default, and
the owner will be subject to liquidated damages of $300 for each day the owner is in violation of the deed
restriction.
In the event an owner defaults on their mortgage and the lender initiates foreclosure proceedings, the
Town may make payments on behalf of the owner to avoid foreclosure. In the event of foreclosure, the deed
restriction will remain in place, except if the property is subject to a HUD loan, in which case, pursuant to
federal rules and regulations, the deed restriction is extinguished. However, the Town will have the option to
purchase the property thirty (30) days after the issuance of the public trustee’s deed.
COUNCIL POLICY CONSIDERATIONS: The attached documents provide a basis for an Avon Deed
Restriction Program. Several policy considerations are highlighted below for Council’s discussion. The se
documents will be modified to incorporate Council’s direction.
Deed Restriction Purchase Price Parameters – As noted above, the Town of Vail has set the market for a
deed restriction at 15% to18% of a home’s value. As a practical matter, this range effectively serves as the
down payment on the home. The fact that it does not go to the 20% down payment traditionally required for
a down payment speaks to the overall expectation applicants put some money in the home.
Staff’s research indicates that the placement of a deed restriction on a property decrease the resale value on
a property anywhere from 5% to 20% due to the decreased pool of eligible buyers. This amount changes
based on the value of the home with the impact being less significant on lower priced homes. Therefore, in
establishing parameters for a purchase price, Avon needs to consider the current market rate for deed
restrictions as well as the financial realities for an applicant contemplating selling a deed restriction to Avon.
Staff recommends the Town purchase price of a deed restriction should be at 15% to 18% of the purchase
price of a home while noting not every applicant need not receive the full 18%.
Transaction Cap – The Town of Vail has capped the maximum amount at which it will purchase a deed
restriction at $200,000. Given the disparity in budgets as well as market prices, this cap appears too high for
Avon. However, a transaction cap does seem prudent. Given the current median home price of an Avon
home of $673,000, the transaction cap could be placed at $121,140, or 18% of the median home price.
Consistent with Council’s recent decision to cap of the Primary Residence Exception to the RETT at
$700,000, the transaction cap for the Avon Deed Restriction Program could be similarly capped at $126,000,
or 18% of $700,000. This cap seems appropriate as the Town of Avon Community Housing Plan emphasizes
the need to provide relief for those below Eagle County’s Adjusted Median Income as well as the “Missing
Middle.” However, the Housing Fund is not unlimited, so a cap of $75,000 would allow more people to
participate in the program. Although such cap would serve as an 18% down payment on a $416,000, well
below the median house price, such an amount is not insignificant, and at lower price points the impact of
the deed restriction on resale of a home is less significant. Staff recommends a cap of $100,950 (15% of
the median home price of $673,000).
Multiple Properties – As the Avon Deed Restricted Program is currently written, and as InDeed currently
operates, it is possible for an individual to apply for funding on multiple properties so long as those properties
Page 4 of 5
are rented to Eagle County Employees. In one respect, there is nothing wrong with this approa ch as it
ensures those properties will always house local residents. Conversely, it seems Avon would be subsidizing
an individual’s rental business, and there is no guarantee the property is rented at attainable prices. Staff
recommends limiting participation in the program to one property per individual at a time. Council
may desire to allow an Avon based business to purchase multiple residences with deed restrictions
for its employees.
Rentals – As currently written, an owner may rent their property so long as an Eagle County Employee uses
the property as their primary residence. Some have argued the deed restriction should only permit owner -
occupied units. While this may be practical initially, at some point the owners of deed restricted properties
may wish to move to different homes within the community. In a down economy, a move may be feasible
possible, but selling the property may not make economic sense. So long as the property is being rented to
an Eagle County Employee, the goal of providing local long-tern housing is likely being met. Staff
recommends permitting owners to rent deed restricted properties.
Short-Term Rentals – During the recent discussion related to the Primary Residence Exemption to the
RETT, Council noted it is common for Avon residents to short-term rent rooms within their home, which
enables the owners to more easily afford their mortgage payments. This would be prohibited under the
current documents. As with applicants applying Town funds to multiple properties, permitting short -term
rentals even where the owner occupies the home appears to create a scenario under which the Town is
subsidizing a business rather than a long-term housing solution. Staff recommends not allowing short-
term rentals under any circumstances.
Buyout Provision – Some potential owners have proposed the deed restriction extinguishes if the owner is
unable to sell the property at fair market value, or a to -be-determined percentage of fair market value, after
a period of one year. Some lenders have proposed the same approach if the lender take s possession post-
foreclosure. Such owners and lenders feel the risk in participating in the program would be reduced if such
a provision were in the deed restriction. The purpose of the deed restriction is for the Town to increase
housing option throughout the community, not make real estate a safe investment. Staff recommends
against a buyout provision.
Right of First Refusal – Under the InDeed approach, the Town of Vail has a right of first refusal if an offer
is made on a deed restricted property. This allows the Town of Vail to control the housing stock and direct
who occupies some homes. The Town of Avon does not necessarily have the financial capacity to purchase
homes. Staff recommends not having a right of first refusal provision.
Administering Applications – There are a limited number of deed restrictions the Town can purchase based
on available financial resources. Applications can be considered on a first come, first served basis or the
Town could establish a lottery. Staff does not anticipate it will receive more applications than it can
accommodate and administer. However, given the Town discontinued its employee down payment
assistance program, it has been suggested the program be limited to Town employees. Staff recommends
processing applications as they are received.
Town Employees - Town previously had an employee down payment assistance fund which was
discontinued approximately six years ago. Council may wish to consider providing a preference or set
aside of Community Housing funds to assist Town employees with purchasing a deed restri cted
residence in Avon.
Page 5 of 5
Subordination Agreement: In the event a current homeowner wishes to place a deed restriction on their
home for the purpose of acquiring additional funds for a home improvement or other reasons, the InDeed
program requires the lender who provided the mortgage on the original acquisition of the home to sign a
Subordination Agreement. This Subordination Agreement essentially acknowledges the deed restriction and
places the Town of Vail’s interests ahead of the lenders even though the lender did not provide the mortgage
with the deed restriction in mind. Larger financial institutions who sell mortgages on the secondary market
are unable to sign the Subordination Agreement at the moment; though, small institutions in Eagle County
are will to execute such agreements. Staff is working with secondary mortgage market participants to create
an alternative agreement. Staff recommends continuing to find a solution for larger financial
institutions, but proceed with the program without a solution in place.
Name: Staff recognizes “Avon Deed Restricted Program” does not have any flow or ring to it. The program
could be called “Avon In-Deed” to follow Vail’s program or could be called something else unique to Avon.
Due to the similarity to the Vail In-Deed program, recognition of the Vail In-Deed program with financial
institutions and brokers in the Vail Valley, and in the spirit of that imitation is the highest form of fla ttery, Avon
In-Deed seems like an appropriate name for Avon’s program.
REQUESTED ACTION: Staff requests direction on the policy areas highlighted above as well as an y
comments to the documentation provided.
Thank you, Eric and Paul
ATTACHMENTS:
Attachment A – Application
Attachment B – Staff Application Evaluation
Attachment C – Deed Restriction Purchase Agreement
Attachment D – Deed Restriction
Attachment E – Subordination Agreement
Attachment F – Closing Instructions: Memorandum of Acknowledgement
________________________________________________________________________
100 Mikaela Way Finance Department
Avon, Colorado 81620 970.478.4000
Application
Date: ______________________________________________
Your name: ______________________________________________
Provide name(s) as title to property will be or is held
Your current mailing address: ______________________________________________
Your e-mail: ______________________________________________
Your phone: ______________________________________________
How much money are you requesting? $_____________________________________________
Avon property address to be deed restricted: ______________________________________________
Property Type: ☐ Single Family ☐ Condo ☐ Townhouse ☐ Duplex
Number of bedrooms/bathrooms: ________________Bedrooms_______ ______Bathrooms
Number of unit parking spaces;
total property parking spaces: ______________________________________________
Do you own this property
or are you purchasing it? ☐ Own This Property ☐ Purchasing This Property
If purchasing are you under contract?
If so what is the contract or list price: ______________________________________________
Do you have a closing date or
date decision is needed? ______________________________________________
If you own the property is there a
mortgage or other liens? ______________________________________________
Is there a Home Owner’s Association? ☐ Yes, there is an HOA ☐ No, there is no HOA
Is there any pending or upcoming
special assessments (SA’s)? ☐ Pending SA ☐ Upcoming SA ☐ No SA
Is there a right of first refusal? ______________________________________________
The Town cannot place a deed restriction on property with right of first refusal
Do you intend to live in the property?
Or rent? ☐ Live in this property ☐ Rent this property
Have you notified your Lender and
Appraiser of your intent to place a
Deed Restriction on the Property?
Is there additional property information
You wish to share? (optional): ______________________________________________
Avon Deed Restriction
Program
Application
Attachment A
_______________________________________________________________________________
100 Mikaela Way Finance Department
Avon, Colorado 81620 970.478.4000
Applicant: Review Date:
Property Address:
Y / N Supports and maintains a permanent year- round resident population that grows a diverse community where a
wide range of demographics, economics, occupations and family household sizes are served.
Y / N Amplifies “missing middle” in Avon.
Y / N Demonstrated demand exists within the resident housing market for the type of residential product
(studio, flat, townhome, duplex, single family, etc.) that is to be deed restricted
Y / N Fulfills a demonstrated need within a defined segment (i. e. for rent, for sale, owner occupied, etc.) of the residential
property mark et.
Y / N The mark et value of the deed restriction is comparable in value to other existing deed restrictions within the
community as demonstrated by a licensed real estate appraiser.
Y / N Most cost effective and efficient use of the Town's limited supply of financial resources
Y / N Fair market value is paid for the deed restriction relative to current market conditions (i. e. supply &
demand)
Y / N Site Visit
Unit Condition:_________________________________________________________________________________
Current Unit Use: ______________________________________________________________________________
Neighborhood Sales Search _____________________________________________________________________
Town of Avon Offer: _______________ Applicant Counter: ________________ Agreed Amount: ________________
Avon Deed Restriction
Program
Staff Review
Attachment B
DEED RESTRICTION PURCHASE AGREEMENT
THIS DEED RESTRICTION PURCHASE AGREEMENT (the "Agreement") is entered into
this day of , 2020 (the "Effective Date") by and between the Town of
Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, Avon,
Colorado 81620 (the "Town"), and , individuals with and address of
_____________________ (collectively, “Purchaser”) (each individually, a “Party” and
collectively the “Parties”).
WHEREAS, Purchaser is purchasing the real property and the improvements situated thereon,
located at , Avon, Colorado 81620 (the “Property”);
WHEREAS, in exchange for compensation as set forth herein, Purchaser has agreed to place
certain restrictions on the use of the Property for the benefit of the Town by requiring occupancy
of the Property by at least one qualified resident, as set forth in the Deed Restriction Agreement
executed contemporaneously herewith (the "Deed Restriction"); and
WHEREAS, the Deed Restriction is of value to the Town, and the Town is willing to
compensate Purchaser for the value of the Deed Restriction.
NOW , THEREFORE, for and in consideration of the mutual promises and covenants contained
herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows:
1.Conveyance. Purchaser agrees to convey, sell, transfer and assign to the Town, and the
Town agrees to purchase from Purchaser, the Deed Restriction, on the terms and conditions of this
Agreement.
2.Purchase Price. The purchase price for the Deed Restriction shall be $ (the
"Purchase Price"), delivered to Purchaser at closing in funds which comply with all applicable
Colorado laws, which include electronic transfer funds, certified check and cashier's check, at the
Town's option.
3.Closing. The closing will occur at a mutually agreeable location, at a date agreed upon by
the Parties within 14 days of the Effective Date.
4.Notice and Consent. Purchaser certifies that Purchaser has notified every person or
entity holding a lien or other encumbrance on the Property as well as every person or entity
Purchaser reasonably believes will hold a lien or encumbrance on the Property of the proposed
purchase of the Deed Restriction by the Town, and if necessary, obtained each of their consent to
the recording of the Deed Restriction against the Property. Should Purchaser not provide
such notice or obtain such consent, and Purchaser's failure to do so causes the Deed Restriction
to become unenforceable, invalid or void for any reason, Purchaser shall reimburse the entire
Purchase Price to the Town within 30 days of receipt of written notice from the Town.
5.Purchaser's Representations and W arranties. Purchaser hereby represents and warrants that
the following statements are now, and will be as of the closing date, true and correct, to the best of
Purchaser's knowledge, and Purchaser shall give the Town prompt written notice if any of the
representations or warranties made by Purchaser in this Agreement are no longer true or correct in
Attachment C
any material manner:
a.There is no action, suit or proceeding pending, or to the best of Purchaser's
knowledge threatened, against or otherwise affecting Purchaser or the Property in any court of law
or equity, or before any governmental authority, in which an adverse decision might materially
impair Purchaser's ability to perform its obligations under this Agreement.
b.There is no pending or threatened condemnation or similar proceeding affecting the
Property.
6.Town's Remedies. In the case of any breach of this Agreement by Purchaser, the Town
may terminate this Agreement by written notice to Purchaser, and the Town shall have all remedies
available at law or equity for such breach. In addition to all other remedies, in the case of a breach
of this Agreement by Purchaser, the Town shall have the right to recover the entire Purchase
Price from Purchaser, in addition to all costs and fees, including attorney fees, incurred by the
Town.
7.Miscellaneous.
a.Entire Agreement. This Agreement contains the entire agreement of the Parties.
There are no other agreements, oral or written, and this Agreement can be amended only by written
agreement signed by the Parties.
b.Agreement Binding; Assignment. This Agreement, and the terms, covenants,
and conditions herein contained, shall inure to the benefit of and be binding upon the heirs, personal
representatives, successors, and assigns of the Parties.
c.Notice. Any notice under this Agreement shall be in writing, and shall be deemed
sufficient when directly presented or sent pre-paid, first class United States Mail to the Party
at the address set forth on the first page of this Agreement.
d.Governing Law and Venue. This Agreement shall be governed by the laws of
the State of Colorado, and any legal action concerning the provisions hereof shall be brought
in Eagle County, Colorado.
e.Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall
remain in full force and effect.
f.Third Parties. There are no intended third-party beneficiaries to this Agreement.
Attachment C
g.Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the Town not performed during the current fiscal year is
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year.
h.Governmental Immunity. The Town and its officers, attorneys and employees, are
relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary
limitations or any other rights, immunities or protections provided by the Colorado Governmental
Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its
officers, attorneys or employees.
IN W ITNESS W HEREOF, the Parties have executed this Agreement as of the
Effective Date.
TOWN OF AVON, COLORADO
ATTEST:
Eric Heil, Town Manager
Brenda Toress , Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was subscribed, sworn to and acknowledged before me this
day of , 20 , by .
Witness my hand and official seal.
Notary Public
(S E A L)
My commission expires:
Attachment C
PURCHASER
__________________________________
Name: ____________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was subscribed, sworn to and acknowledged before me this
day of , 20 , by .
Witness my hand and official seal.
Notary Public
(S E A L)
My commission expires:
Attachment C
Page 1 of 12
Town of Avon – “Avon Indeed” Deed Restriction
TOWN OF AVON - RESIDENT OCCUPIED
“AVON IN-DEED” DEED RESTRICTION
NON-PRICE CAPPED
THIS DEED RESTRICTION PURCHASE AGREEMENT (the “Deed Restriction”) is entered
into this day of , 2020 (the “Effective Date”) by and between the Town
of Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, P.O.
Box 975, Avon, Colorado 81620 (the "Town"), and , individuals with an
address of ________________________, Avon, Colorado 81657 (collectively "Declarant")
(each individually a "Party" and collectively the "Parties").
WHEREAS, Declarant is purchasing the real property and the improvements situated thereon,
located at ___________________, Avon, Colorado 81620 and more particularly described in
Exhibit A hereto (the “Property”); and
WHEREAS, in exchange for compensation as set forth in a Deed Restriction Purchase
Agreement, Owner has agreed to place certain restrictions on the use of the Property for the benefit
of the Town by requiring occupancy of the Property by at least one qualified resident, as defined
below.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained
herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows:
COVENANTS
1.Restriction and Recording. The Property is hereby burdened with the covenants and
restrictions specified in this Deed Restriction. The Town shall record this Deed Restriction against
the Property at Declarant’s expense.
2.Definitions. The following definitions shall apply to terms used in the Deed Restriction:
a.Eagle County Employee means an employee working in Eagle County who works an
average of at least thirty-two (32) hours per week for at least eight (8) months in each
calendar year or earns seventy -five percent (75%) of his or her income and earnings by
working in Eagle County; or a retired individual, sixty (60) years or older, who has
worked a minimum of five (5) years in Eagle County for an average of at least thirty-two
(32) hours per week for at least eight (8) months in each calendar year ; or a person who
derives income from self-employment whose business is situated in Eagle County; or a
person who works for an employer outside Eagle County if that person can demonstrate
that such residence is the primary residence for that person.
b.Owner means any person who acquires an ownership interest in the Property, subject to
the conditions contained herein, and may include either a Qualified Owner or Non-
Qualified Owner, as the context requires.
i.Qualified Owner means (1) a natural person who is an Eagle County Employee; or
(2) an owner of a business, business entity or organization (including for profit,
Attachment D
Page 2 of 12
Town of Avon – “Avon Indeed” Deed Restriction
non-profit, public and governmental entities) with operations located within the
boundaries of Eagle County who intends to rent or provide rent-free the Property
to an employee (or employees) who is an Eagle County Employee, and in each case
who possesses an ownership interest in the Property in compliance with the terms
and provisions of this Deed Restriction and whose qualifications to own the
Property have been certified by the Town at the time the Owner takes title to the
Property.
ii.Non-Qualified Owner means any person who does not meet the definition of
Qualified Owner including persons who originally qualified as a Qualified Owner
but whose circumstances change and who no longer meet the definition of Qualified
Owner.
c.Primary Residence means the occupation and use of a residence as the primary residence,
which shall be determined by the Town Manager by taking into account the following
circumstances: voter registration in Avon, Colorado (or signing an affidavit stating that
the applicant is not registered to vote in any other place); stated address on Colorado
driver’s license or Colorado identification card; stated address on motor vehicle
registration; ownership or use of other residences not situated in Avon, Colorado; stated
residence for income and tax purposes; and such other circumstances as well as such
processes for verification and investigation deemed appropriate by the Town Manager to
determine that the applicant is continuously occupying and using the residence as a
primary residence. Primary residence status may be maintained if unforeseen
circumstances arise that requires the resident Eagle County Employee to temporarily
leave the residence for a period not to exceed nine (9) months with the intent to return,
and the residence is leased to another Eagle County Employee(s) after receiving written
approval from the Town Manager.
d.Second Home shall mean the status of the Property when used by any person who has a
primary residence that is other than the Property.
e.Short Term Rental shall mean the rental or lease of the Property for a period of time that
is fewer than thirty (30) days.
f.Town shall include employees of the Town of Avon or subcontractors retained by the Town
who are tasked with enforcing Deed Restriction agreements.
3.Ownership and Use of the Property.
a.Notice. Prior to acquiring the Property, Declarant acknowledges Declarant is required to
notify any lender or appraiser engaged by Declarant, or otherwise assisting Declarant, in
connection with the acquisition of the Property of Declarant’s intent to enter into this Deed
Restriction and cause such Deed Restriction to be recorded against the Property.
b.Ownership. Ownership of the Property shall be limited to a Qualified Owner (who may
take title with such Qualified Owner’s spouse or civil union partner [if the Qualified Owner
is a natural person who is an Eagle County Employee] and/or with a co-signor if the co-
Attachment D
Page 3 of 12
Town of Avon – “Avon Indeed” Deed Restriction
signor is signing for the sole purpose of facilitating the financing qualifications of the
Qualified Owner and signs an affidavit that the co-signor is not a co-purchaser for
investment or resale purposes).
c.Occupancy and Use. Occupancy and use of the Property shall be limited to one or more
Eagle County Employees for occupancy and use as a Primary Residence. Permitted
occupancy and use shall include immediate family members of such Eagle County
Employee or Employees and temporary invitees who do not provide compensation for
temporary residence at the Property. Any lease of the Property by the Owner shall be to
an Eagle County Employee or Employees for use as a Primary Residence for periods of
thirty (30) days or longer. Use or lease of the Property as a Second Home or for Short
Term Rental is prohibited. Any use or lease of the Property which is not allowed or is
prohibited by this Deed Restriction shall constitute a default and shall be subject to the
enforcement provisions and remedies contained in this Deed Restriction.
d.It shall not be deemed a violation of Sections 3.a or b. above if
i.The resident Eagle County Employee becomes disabled and is no longer able to work
as determined by the Town in its sole exclusive discretion; or
ii.The resident Eagle County Employee has lost full-time employment and is actively
seeking reemployment, not to exceed ninety (90) days after loss of employment; or
iii.The Property is unoccupied and the Owner of the Property is actively seeking to sell
or lease the Property to an Eagle County Employee, provided that the period of
vacancy of the Property shall not exceed twelve (12) months.
e.Owner covenants that the Owner shall not permit any occupancy, use or lease of the
Property in violation of this Section 3.
f.Owner covenants that any lease of the Property shall include a reference that such lease
is subject to the terms and conditions of this Deed Restriction, including but not limited
to restrictions on the use and occupancy of the Property and cooperation on providing
required documentation for verification of Eagle County Employee and Primary
Residence status.
g.No later than February 1st of each year, the Owner of the Property shall submit to the
Town a certification setting forth evidence establishing that the Property’s occupancy
and use complies with this Deed Restriction on a form provided by the Town, which form
shall be sent to the address of record of the Owner according to the Eagle County
Assessor’s Office.
4.Re-Sale Controls. The Property may not be sold or otherwise transferred to any person
other than a Qualified Owner in accordance with the procedures for prior verification contained in
this Section 4.
Attachment D
Page 4 of 12
Town of Avon – “Avon Indeed” Deed Restriction
a.Owner shall deliver to the Town a written notice of intent to sell the Property which notice
shall include the name(s) of the buyer(s) and all information required to determine whether
the buyer(s) meets the definition of Qualified Owner.
b.Buyer(s) shall submit an administrative fee in the amount of TWO HUNDRED AND
FIFTY DOLLARS ($250.00) to the Town to pay for the cost of reviewing and rendering a
determination as to whether a prospective Buyer(s) meets the definition of a Qualified
Owner. The administrative fee may be increased by the Town Council over time by an
amount equal to annual increases in the Consumer Price Index for All Urban Consumers
for the Denver-Aurora-Lakewood, Colo., metropolitan area as defined by the United States
Bureau of Labor Statistics (or such other Consumer Price Index as may be adopted by the
United States Bureau of Labor Statistics for Colorado) to cover the Town’s costs associated
with processing the application.
c.Once the Town has received complete information concerning the prospective Buyers(s)
and has received the administrative fee, the Town shall review the information and make a
written determination as to whether the buyer(s) meets the definition of a Qualified Owner
within a reasonable time and not to exceed thirty (30) days.
d.The Town may require the Buyer to reimburse the Town for any additional costs that are
incurred in the review and determination of whether a buyer(s) meets the definition of a
Qualified Owner, including but not limited to legal costs, title review costs, and
investigation costs if reasonably required by the Town to complete its investigation.
e.The Owner may sell and convey the Property to the Buyer(s) that is determined in writing
by the Town to be a Qualified Owner.
5.Default by Owner. If the Town has reasonable cause to believe that the occupancy or use
of the Property is in violation of any provision of this Deed Restriction, the Town may inspect the
Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing
the Owner and occupants with at least twenty four (24) hours written notice. Notice to the
occupants may be given by posting notice on the door to the Property. This Deed Restriction shall
constitute permission to enter the Property during such times upon such notice without further
consent. A default by Owner shall include breach of the covenants set forth in this Deed
Restriction, including without limitation any of the following:
a.Transfer or conveyance of the Property to a person or entity that is not a Qualified Owner.
b.Acceptance of the Property by a person or entity that is not a Qualified Owner.
c.Transfer or conveyance of the Property to a person who is a Qualified Owner prior to
obtaining certification from the Town that such person is a Qualified Owner.
d.Any ownership, use or occupancy of the Property in violation of Section 3 above,
including, without limitation, any lease of the Property to a person or entity that is not an
Eagle County Employee.
Attachment D
Page 5 of 12
Town of Avon – “Avon Indeed” Deed Restriction
e.Failure to submit an annual certification of occupancy and use as described in Section 3.f
above.
f.Failure to make payments and comply with the terms of any deed of trust placed on the
Property.
g.Any action by the Owner to encumber the Property in a manner that conflicts with the
terms of this Deed Restriction or renders compliance with the terms of this Deed
Restriction impossible or impractical.
h.Permitting the use of the Property as a Short Term Rental or Second Home.
6.Notice and Cure. In the event a violation of this Deed Restriction is discovered, the Town
shall send a written notice of default to the Owner detailing the nature of the default and providing
sixty-five (65) days for the Owner to cure such default. Notwithstanding the foregoing or any
other term of this Deed Restriction, a default for lease or use of the Property as a Short Term Rental
or a Second Home shall be cured by the Owner immediately. The notice shall state that the Owner
may request an appeal of the violation finding in writing within ten (10) days of such notice, in
which event the Town shall administratively review the finding and, if the violation finding is
upheld, the Owner may request in writing within ten (10) days of such administrative decision a
hearing before the Avon Town Council. A decision of the Avon Town Council may only be
judicially appealed in the District Court of Eagle County pursuant to C.R.C.P. 106.
If no administrative or Town Council appeal is timely requested in writing and the violation is not
cured within sixty-five (65) days of mailing the notice of default, the Owner shall be deemed to be
in violation of this Deed Restriction. If an administrative or Town Council appeal is requested,
the decision of the Avon Town Council (or administrative decision if such decision is not timely
appealed to the Town Council) shall be final for the purpose of determining if a violation has
occurred and, if such violation is not cured within sixty-five (65) days of such final determination,
the Owner shall be deemed to be violation of this Deed Restriction. If a decision of the Avon
Town Council is judicially appealed, an order of the Court confirming the violation shall be final
for the purpose of determining if a violation has occurred and, if such violation is not cured within
sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this
Deed Restriction.
In the event of any lease to a person who is not an Eagle County Employee or use of the Property
as a Short Term Rental or Second Home, any amounts collected or receipt of other things of value
by the Owner or assigns under such leases shall be paid to the Town as a material requiremen t of
curing the notice of default.
7.Remedies. In the event of violation, non-performance, default or breach of any term of this
Deed Restriction by the Owner, Town shall have the right to enforce Owner’s obligations herein
by an action for any equitable remedy, including injunction or specific performance, as well as
pursue an action to recover damages. In addition, any amount due and owing to the Town shall
bear interest at the rate of one and one half percent (1.5%) per month (eighteen percent [18%] per
annum, compounded annually) until paid in full. The Town shall be entitled to recover any costs
related to enforcement of this Deed Restriction, including but not limited to attorney’s fees, court
Attachment D
Page 6 of 12
Town of Avon – “Avon Indeed” Deed Restriction
filing costs and county recording costs. In addition to any other remedy provided by law or equity,
the Town may attach a lien for any amount due to the Town upon the Property and enforce the lien
in the manner and according to the procedures set forth in Colorado Revised Statutes, Section 31-
20-105, and the Owner expressly waives any objection to the attachment of a lien for amounts due
to the Town. In the event of a transfer or conveyance of the Property which violates the terms of
this Deed Restrictions and constitutes a violation of this Deed Restriction, both the grantor and
grantee shall be jointly and severally liable for any damages and costs due under this Deed
Restriction.
8.Liquidated Damages. The parties acknowledge and agree that in the event of a violation of
this Deed Restriction by the Owner, the determination of actual monetary damages would be
difficult to ascertain. Therefore, the Town and Owner hereby agree that liquidated damages shall
be calculated and applied in the amount of THREE HUNDRED DOLLARS ($300.00) per day for
each day that the Owner is in violation of this Deed Restriction after having failed to timely cure
the violation of this Deed Restriction. Liquidated damages shall be in addition to the Town’s
ability to recover costs as stated in Section 7 above. Liquidated damages shall be in addition to
the Town’s right to seek equitable remedies of injunction and/or specific performance. In the event
of any lease or use of the Property as a Second Home or Short Term Rental, any amounts collected
or receipt of other things of value by the Owner or assigns under such leases shall be paid to the
Town as liquated damages as demanded by the Town (in lieu of the $300 daily liquidated
damages), including such amounts collected or received by Owner prior to receipt of a Notice of
Default and prior expiration of a sixty-five (65) day period to cure, and such amounts shall be in
addition to the right of the Town to recover costs and seek equitable remedies.
9.Release of Deed Restriction in Event of Foreclosure or Deed in Lieu.
a.An Owner shall notify the Town, in writing, of any notification received from a lender of
past due payments or defaults in payments or other obligations within five (5) days of
receipt of such notification.
b.An Owner shall immediately notify the Town, in writing, of any notice of foreclosure under
the first deed of trust or any other subordinate security interest in the Property, or when any
payment on any indebtedness encumbering the Property is required to avoid foreclosure of
the first deed of trust or other subordinate security interest in the Property.
c.Within sixty (60) days after receipt of any notice described herein, the Town may (but shall
not be obligated to) proceed to make any payment required to avoid foreclosure. Upon
making any such payment, the Town shall place a lien on the Property in the amount paid
to cure the default and avoid foreclosure, including all fees and costs resulting from such
foreclosure.
d.Notwithstanding any other provision of this Deed Restriction (but subject to Section 9.f
below), in the event of a foreclosure, acceptance of a deed-in-lieu of foreclosure, or
assignment, this Deed Restriction shall remain in full force and effect, including without
limitation Section 4 hereof, restricting Transfer of the Property.
Attachment D
Page 7 of 12
Town of Avon – “Avon Indeed” Deed Restriction
e.The Town shall have thirty (30) days after issuance of the public trustee’s deed or the
acceptance of a deed in lieu of foreclosure by the holder in which to purchase by tendering
to the holder, in cash or certified funds, an amount equal to the bid price or the redemption
price paid by the holder, interest in the amount of eight (8) percent per annum from the
date of the issuance of the public trustee’s deed or the recording of a deed in lieu of
foreclosure through the date of the Town’s purchase.
f.Notwithstanding Section 9.d above, in the event that the Property is encumbered by a
mortgage or deed of trust insured by the U.S. Department of Housing and Urban
Development (“HUD”) and representing a purchase money first priority mortgage or deed
of trust, this Deed Restriction shall automatically and permanently terminate upon
foreclosure of such mortgage or deed of trust, upon acceptance of a deed in lieu of
foreclosure of such mortgage or deed of trust, or upon assignment of such mortgage or
deed of trust to HUD.
10.Option to Purchase. In the event of default by the Owner which is not cured, or upon receipt
of a notice of foreclosure or other notice of default provided by the holder of a deed of trust , lien
or other encumbrance as provided in Section 9 above (whichever is earlier), the Town shall have
the option to purchase (“Option to Purchase”) the Property in accordance with the procedures
and terms set forth as follows:
a.The Town shall have an Option to Purchase for sixty-five (65) days (“Option Period”).
b.The Town shall have right of entry onto and into the Property during the Option Period to
inspect the Property.
c.The Town shall have the right to purchase the Property for the amount due to the holders
of any deeds of trust, liens or other encumbrances up to the maximum amount defined in
Section 5.g. above (together with interest, fees and costs expressly chargeable under deed
of trust, lien or other encumbrance instrument), which amounts shall be paid in order of
priority of the holders of such deeds of trusts, liens or other encumbrances provided that
this Deed Restriction shall remain in effect and burden the Property after acquisition by the
Town and upon re-conveyance to a subsequent Qualified Owner.
d.The Town shall have the right to assign the Town’s right to purchase the Property to any
Qualified Owner provided that this Deed Restriction shall remain in effect and burden the
Property.
e.Upon payment by Town or assigns, Owner shall convey title to the Property by a special
warranty deed in accordance with Colorado Revised Statute §38-30-115 and shall include
the words, “and warrant title against all persons claiming under me.”
f.Normal and customary closing costs shall be shared equally between the Owner and Town
or Town’s assigns. The Town or assigns shall be responsible, at its cost, for any and all
title insurance fees, document fees, and recording fees of the deed. Taxes shall be prorated
based upon taxes for the calendar year immediately preceding closing.
Attachment D
Page 8 of 12
Town of Avon – “Avon Indeed” Deed Restriction
g.If the Town or assigns do not exercise the Option to Purchase during the Option Period,
then the holder of a deed of trust shall nonetheless remain subject to this Deed Restriction
as provided in Section 9.d above, subject, however, to Section 9.f above. In the event that
Town’s Option to Purchase arises from a default by Owner and not a notice of foreclosure
or notice of default submitted by the holder of a deed of trust to the Town, then the Town
may unilaterally extend the Option Period until such time as Town, or assigns, exercise the
Option to Purchase or the Owner cures any and all defaults.
11.Tax Sale. In the event of a tax sale this Deed Restriction shall remain in full force and effect,
shall run with and burden the land, and shall constitute a condition of the subdivision and land use
approval which shall survive and sale of the Property through a tax lien sale process.
12.General Provisions.
a.Severability. If any term, provision, covenant or condition of this Deed Restriction is held
by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions of this Deed Restriction shall continue and remain in full force and effect.
b.Counting Days. If the final day of any notice, default or other event falls on a Saturday,
Sunday, legal holiday recognized by the State of Colorado or day upon which the Avon
Town Hall is closed for any reason, then the final day shall be deemed to be the next day
which is not a Saturday, Sunday, legal holiday or day that the Avon Town Hall is closed.
c.Waiver. No waiver of one or more of the terms or provisions of this Deed Restriction shall
be effective unless provided in writing. No waiver of any term or provision of this Deed
Restriction in any instance shall constitute a waiver of such provision in any other instance.
The Town Council may provide a waiver along with any conditions of the waiver with
regard to any of the terms and provisions in this Deed Restriction where unusual or
unforeseen circumstances exist and the Owner is diligently seeking to cure a default and
such waiver, with conditions if any, supports the purpose and intention of this Deed
Restriction.
d.Amendment. This Deed Restriction may only be amended in writing by the mutual
agreement of the Owner and the Town and recorded with the Clerk and Recorder’s Office
of Eagle County, Colorado.
e.Recording. The Owner shall record this Deed Restriction in the Property Records of Eagle
County, Colorado and the original executed and record documents must be returned to the
Town.
f.Assignment. The Town may assign this Deed Restriction and all rights and obligations,
without consent of the Owner, to any other public entity, non-profit corporation or other
entity which is organized and exists for the purpose to provide and promote affordable
housing for full time residents.
Attachment D
Page 9 of 12
Town of Avon – “Avon Indeed” Deed Restriction
g.No Third-Party Beneficiaries. Nothing contained in this Deed Restriction is intended to
or shall create a contractual relationship with, cause of action in favor of, or claim for relief
for, any third party.
h.Choice of Law. This Deed Restriction shall be governed and construed in accordance with
the laws of the State of Colorado. Venue for any legal action arising from this Deed
Restriction shall be in Eagle County, Colorado.
i.Successors. Except as otherwise provided herein, the provisions and covenanted contained
herein shall inure to and be binding upon the heirs, successors and assigns of the parties.
The covenants shall be a burden upon and run with the Property for the benefit of the Town
or the Town’s assigns, who may enforce the covenants and compel compliance therewith
through the initiation of judicial proceedings for, but not limited to, specific performance,
injunctive relief, reversion, eviction and damages.
j.Section Headings. Paragraph or section headings within this Deed Restriction are inserted
solely for convenience of reference and are not intended to and shall not govern, limit or
aid in the construction of any terms or provisions contained herein.
k.Gender and Number. Whenever the context so requires in this Deed Restriction, the
neuter gender shall include any or all genders and vice versa and the use of the singular
shall include the plural and vice versa.
l.Notice. Any notice, consent or approval, which is required to be given hereunder, shall be
given by either depositing in the U.S. Mail with first class postage pre-paid; mailing by
certified mail with return receipt requested; sending by overnight delivery with a nationally
recognized courier service that delivers to the physical address of the Property; or, by hand-
delivering to the intended recipient. Notices shall be provided to the Town of Avon at P.O.
Box 975, 100 Mikaela Way, Avon, CO 81620. Notices shall be provided to Owner at the
address provided by the Eagle County Assessor’s office.
[signature page follows]
Attachment D
Page 10 of 12
Town of Avon – “Avon Indeed” Deed Restriction
IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day
and the year first written above.
OWNER:
[______________________________________]
[______________________________________]
By:_________________________________
Name: ______________________________
Its: _________________________________
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was subscribed, sworn to and acknowledged before me this ___
day of ____________________, 2020, by ___________________________________, as the
owner of the real property described above.
Witness my hand and official seal. ______________________________
Notary Public
My commission expires: ________________
Attachment D
Page 11 of 12
Town of Avon – “Avon Indeed” Deed Restriction
TOWN OF AVON, CO:
By:__________________________________ Attest:______________________________
Eric Heil, Town Manager Brenda Torres, Town Clerk
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
Subscribed before me this ______ day of _______________, 2020, by Eric Heil, as Town
Manager, and Brenda Torres, as Town Clerk of the Town of Avon, a Colorado home rule
municipal corporation.
Witness my hand and official seal. ______________________________
Notary Public
My commission expires: ________________
Attachment D
Page 12 of 12
Town of Avon – “Avon Indeed” Deed Restriction
Exhibit A
[Insert Property Legal Description]
Attachment D
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (the "Agreement") is entered into this day of __
, 2020 (the "Effective Date") by and between the Town of Avon, Colorado, a Colorado home rule
municipality with an address of 100 Mikaela Way, Avon, CO 81620 (the “Town”), and ,
a financial institution with an address of _, , Colorado (“Lender”)
(each a "Party" and collectively the "Parties").
WHEREAS, the Deed Restriction Agreement dated 20 , recorded on
_______________ , 20__ under Reception No. ________________of the records of the Clerk and
Recorder of Eagle County, Colorado, as amended (the “Deed Restriction”) burdens the real property
more particularly described as );
WHEREAS, the owner of the Property has requested Lender to issue a loan secured by a deed of trust
encumbering the Property; and
WHEREAS, Lender is willing to subordinate the loan to the Deed Restriction under the terms of this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein,
the sufficiency of which is mutually acknowledged, the Parties agree as follows:
1.Subordination. Lender unconditionally subordinates its lien under the deed of trust on the Property
issued by Lender on , 20 _ (the “Deed of Trust”) to the Deed Restriction. Lender agrees
that its lien on and all other rights and interests in the title to the Property resulting from the Deed of Trust will
remain subordinate to all rights and interests in the title to the Property resulting from the Deed Restriction,
regardless of any renewal, extension or further modification of the Deed of Trust.
2.Notice. If Lender accepts a deed in lieu of foreclosure of the Deed of Trust, Lender shall give
the Town written notice within 20 days after the deed is recorded with the Clerk and Recorder of Eagle County,
Colorado.
3.Miscellaneous.
a.Modification. This Agreement may only be modified by subsequent written agreement of the
Parties.
b.Integration. This Agreement and any attached exhibits constitute the entire agreement between
the Parties, superseding all prior oral or written communications.
c.Severability. If any provision of this Agreement is determined to be void by a court of
competent jurisdiction, such determination shall not affect any other provision hereof, and all of the other
provisions shall remain in full force and effect.
d.Governing Law, Venue and Enforcement. This Agreement shall be governed by and interpreted
according to the law of the State of Colorado. Venue for any action arising under this Agreement shall be in the
appropriate court for Eagle County, Colorado. To reduce the cost of dispute resolution and to expedite the
resolution of disputes under this Agreement, the Parties hereby waive any and all right either may have to request
a jury trial in any civil action relating primarily to the enforcement of this Agreement. The Parties agree the rule
providing ambiguities in a contract are to be construed against the drafting party shall not apply to the
interpretation of this Agreement. If there is any conflict between the language of this Agreement and any exhibit
or attachment, the language of this Agreement shall govern.
Attachment E
2
e.Agreement Binding; Assignment. This Agreement, and the terms, covenants, and conditions
herein contained, shall inure to the benefit of and be binding upon the heirs, personal representatives, successors,
and assigns of the Parties.
f.Third Party Beneficiaries. Nothing contained in this Agreement is intended to or shall create a
contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any
agent, sub-consultant or sub-contractor of Contractor. Absolutely no third party beneficiaries are intended by
this Agreement. Any third-party receiving a benefit from this Agreement is an incidental and unintended
beneficiary only.
g.No Joint Venture. Notwithstanding any provision hereof, the Town shall never be a joint venture
in any private entity or activity which participates in this Agreement, and the Town shall never be liable or
responsible for any debt or obligation of any participant in this Agreement.
h.Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient
when directly presented or sent pre-paid, first class United States Mail to the Party at the address set forth on the
first page of this Agreement.
i. Recording. This Agreement shall be recorded with the Eagle County Clerk and Recorder.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
TOWN OF AVON
___________________________________________
Eric Heil, Town Manager
ATTEST:
__________________________________________
Brenda Torres, Town Clerk
Attachment E
3
LENDER:
STATE OF _____________________)
) ss.
COUNTY of ____________________)
The foregoing instrument was subscribed, sworn to, and acknowledged before me this___________
day of , 2020, by ______________________________________ as ________________of
the Lender.
My commission expires: _.
(SEAL)
Notary Public
Attachment E
________________________________________________________________________
100 Mikaela Way Finance Department
Avon, Colorado 81620 970.478.4000
Avon Deed Restriction Program
Recording Instructions, Property Purchases:
Date: ______________________________________________
Applicant Name: ______________________________________________
Applicant Phone No.: ______________________________________________
Applicant Mailing Address: ______________________________________________
Title Company: ______________________________________________
Closing Date: ______________________________________________
Escrow Acct #: ______________________________________________
Deposit Amount
from Town of Avon: ______________________________________________
Funds Wired to
Escrow: ______________________________________________
1.Town of Avon will wire Avon Deed Restriction Program funds to a designated closing escrow account in
accordance with the wiring instructions.
2.Title company shall record the attached executed documents in the order listed:
a.Deed Restriction Agreement, recorded prior to the Deed of Trust
3.Forward copies of the recorded documents to the Town of Avon Finance Department.
Email Scott Wright at swright@avon.org.
Avon Deed Restriction
Program
Closing Instructions
Attachment F
970-748-4065 ddempsey@avon.org
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Council Members
FROM: Danita Dempsey, CASE Manager; Paul Wisor, Town Attorney
RE: Ordinance 20-03 – Optional Premise Liquor License
DATE: March 2, 2020
SUMMARY: Ordinance 20-03 will allow business and the Town, as an applicant, to apply to the Local Liquor
Licensing Authority to hold events and sell alcohol at such events located at outdoor sports and recreational
facilities. As a result, the Town will no longer need to rely on a limited number of Special Event Permits
available to it each year to hold events at which alcohol is served.
BACKGROUND: First reading of Ordinance 20-03 was approved by Town Council on February 25, 2020.
PROPOSED ORDINANCE: State law provides no optional premises permit shall be issued within any
municipality unless the governing body of the municipality has adopted an ordinance allowing such license
and adopted specific standards for the issuance of optional premises licenses .
Ordinance 20-03 will allow business and the Town, as an applicant, to apply to the Local Liquor Licensing
Authority to hold events and sell alcohol at such events located at outdoor sports and recreational facilities.
It is anticipated all such events would occur at Nottingham P ark.
Among other things, an applicant must provide the Local Liquor Licensing Authority with the location of the
event, the location and use of structures for the event, an explanation for why the premises and license are
needed, steps to be taken to ensure compliance with state law, and other information required by the Local
Liquor Licensing Authority. Notably, the Local Liquor Licensing Authority may impose additional
requirements beyond those prescribed in the ordinance at their discretion.
It should be noted that while Ordinance 20-03 is mainly geared towards Town-hosted events in Nottingham
Park, it does allow for future hotels or restaurants adjacent to Nottingham Park to apply for a license as well,
as permitted by state law.
FINANCIAL CONSIDERATIONS: As noted above, an Optional Premises Liquor License could potentially
allow the Town to generate an additional $40,000 in net revenue each year. Processing such a license
through the state will cost approximately $2,500. The local license authority fee is $1,075 in the first year
and $75 for renewals which under State law we are required to pay.
RECOMMENDATION: Staff recommends approval of Ordinance 20-03 on Second Reading and waving the
local licensing authority fee in the first year and renewal years.
PROPOSED MOTION: “I move to approve Second Reading of Ordinance 20-03, thereby adopting a new
Chapter 5.08.210 to Title 5 of the Avon Municipal permitting Optional Premises Liquor Licenses and setting
a public hearing date of March 10, 2020.”
Thank you, Paul and Danita
ATTACHMENTS:
Exhibit A – Ordinance 20-03
EXHIBIT A – ADDITION OF SECTION 5.08.210 TO TITLE 5 OF THE AVON MUNICIPAL CODE
SECTION 5.08.210 – OPTIONAL PREMISES
(a) An annually renewable optional premises license for the sale or service of alcoholic beverages may be issued
by the Local Liquor Licensing Authority for the following:
(1) Any outdoor sports and recreational facility so long as such facility is located on or a djacent to a hotel and
restaurant license and such outdoor sports and recreational facility that charges a fee for the use of such
facility
(2) Any stand-alone outdoor sports and recreational facility that charges a fee for the use of such facility .
(b) There is no restriction on the minimum size of the outdoor sports and recreational facility which may be eligible
for a related optional premises license. However, the Local Liquor Licensing Authority may consider the site of
the particular outdoor sports and recreational facility in relationship to the number of optional premises
requested for the facility and may reject any optional premises application if the Local Liquor Licensing Authority
considers the related facility to be too small to require an op tional premises.
(c) There is no restriction on the number of optional premises which any one (1) licensee may have.
(d) It is unlawful for any person to sell or dispense alcoholic beverages at an outdoor sports and recreational facility
without having first obtained a valid optional premises license to do so as provided by this Article or in violation
of any provision, restriction or limitation of the license if one has been issued.
(e) Nothing contained herein shall preclude the Local Liquor Licensing Authority , in its discretion, from imposing
conditions, restrictions or limitations on any optional premises license in order to serve the health, safety and
welfare of the public. Any such conditions may be imposed when the license is initially issued prior to any
renewal of such license or when any specific event or use of the optional premises so warrants.
(f) Applications for an optional premises license shall be made to the Local Liquor Licensing Authority and shall
be reviewed by the Local Liquor Licensing Authority pur suant to the procedures set forth in Sections 5.08.080
– 5.08.150. In addition to the application requirements set out in Section 5.08.090, t he following information,
along with any information required by the state licensing authority, shall be provided by the applicant:
(1) A detailed sketch of the outdoor sports and recreational facility indicating the locations desired to be
optional premises.
(2) The proposed location of the permanent, temporary or movable structures or vehicles which are proposed
to be used for the sale or service of alcoholic beverages; and if the applicant is requesting approval of more
than one (1) optional premises, the following shall be provided:
a. An explanation of the reasons for each optional premises request.
b. An explanation of how the optional premises relate to each other from an operational standpoint.
c. An explanation of the need for each optional premises in relationship to the outdoor sports and
recreational facility and its guests and users.
d. A statement and indication by reference to the map required under Paragraph (1) above which optional
premises will be permanent and which, if any, will be temporary or only used for specific periods or
less than one (1) year.
For those optional premises that are temporary or used for specif ic periods, the dates, times and circumstances
which will govern their usage shall be indicated.
(3) Restrictions, limitations, procedures, controls and guidelines to be utilized by the licensee to ensure
compliance with the provisions of the Colorado Liquor C ode and related regulation.
(4) Such other information as reasonably may be required to satisfy the Authority that control of the optional
premises will be assured, and that the health, safety and welfare of the neighborhood and outdoor sports
and recreational facility users will not be adversely affected should the optional premises license be issued.
(5) The need for such an optional premises license.
(6) A description of the methods which will be used to identify and control the optional premises when these
are in use, including an explanation of methods for complying with provisions of the Colorado Liquor Code
prohibiting sale to minors. For example, the applicant may describe the type of signs, fencing or other
notices or barriers to be used in order to control the optional premises.
(7) A description or demonstration of the provisions that have been made for storing malt, vinous and spirituous
liquors in a secure area on or off the optional premises for future use on the optional premises.
(g) If the applicant does not own the proposed optional premises, he or she shall submit to the Local Liquor
Licensing Authority a written statement by the owner of the premises approving the application sought.
(h) If the Local Liquor Licensing Authority approves the application, the applicant shall provide the Town with
evidence that the state licensing authority has approved the location proposed to be optional premises, as
required by the Colorado Liquor Code.
(i) It is unlawful for any alcoholic beverages to be served on a licensed optional premise without the licensee
having first provided written notice to the Town and to the state licensing authority, no less than forty -eight (48)
hours prior to such service of alcoholic beverages. Such notice shall con tain specific days and hours on which
the optional premises are to be used for the sale or service of alcoholic beverages. Nothing contained herein
shall preclude written notice, submitted forty -eight (48) hours in advance, from specifying that an optional
premises may be utilized for a continuous or extended period of time. However, should any special or unusual
event be anticipated to occur during any extended period of time, no less than forty -eight (48) hours' written
notice should be given to the Chief of Police, who shall have the authority, on behalf of the Local Liquor
Licensing Authority, to impose any conditions reasonably related towards serving the health, safety and welfare
of the public.
(j) In addition to or in lieu of any enforcement actions whic h the Local Liquor Licensing Authority takes against an
adjacent hotel and restaurant license for violations of these standards or the Colorado Liquor Code and the
regulations adopted pursuant thereto, the Local Liquor Licensing Authority may decline to renew the optional
premises license for good cause shown. In addition, the Local Liquor Licensing Authority may suspend or revoke
the optional premises license in accordance with the procedures speci fied in Section 5.08.160.
Ordinance 20-03 Optional Premise Liquor License
SECOND READING – March 10, 2020
Page 1 of 4
TOWN OF AVON, COLORADO
ORDINANCE NO. 20-03
ADDING SECTION 5.08.210 TO TITLE 5 “BUSINESS TAXES, LICENSES AND
REGULATIONS,” TO THE MUNICIPAL CODE OF THE TOWN OF AVON,
COLORADO TO PERMIT OPTIONAL PREMISES LIQUOR LICENSES
WHEREAS, the Town of Avon, Colorado (“Town”) is a home rule municipality existing
pursuant to the laws of the Colorado Constitution, the Colorado Revised Statutes and the Town's
Home Rule Charter;
WHEREAS, the Town currently hosts events each year on the Town’s outdoor sports and
recreational facilities at which alcohol is served pursuant to a Special Event Permits; and
WHEREAS, the Town may only use fifteen (15) Special Event Permits per year to serve alcohol
at Town sponsored events; and
WHEREAS, the Town wishes to host more than fifteen (15) events per year on the Town’s
outdoor sports and recreational facilities at which alcohol is served; and
WHEREAS, pursuant to §44-3-310, C.R.S., the Town, through the Local Liquor Licensing
Authority, is permitted to issue an optional premises license under which an applicant may serve
alcohol on the Town’s outdoor sports and recreational facilities; and
WHEREAS, § 44-3-310 (1), C.R.S., provides no optional premises permit shall be issued within
any municipality unless the governing body of the municipality has adopted an ordinance allowing
such license and adopted specific standards for the issuance of optional premises licenses; and
WHEREAS, the Town Council of the Town of Avon wishes to allow for the issuance of
optional premises licenses in accordance with the provisions of C.R.S. 44-3-310, and set specific
standards for the issuance of such licenses; and
WHEREAS, the Town Council of the Town of Avon finds that the amendment of the Avon
Municipal Code of the Town of Avon, Colorado as set forth herein below is in the best interest of
the Town of Avon and is necessary to be consistent with the types of alcoholic beverage
licenses offered by the State of Colorado Department of Revenue.
NOW, THERFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF
AVON, COLORADO the following:
Ordinance 20-03 Optional Premise Liquor License
SECOND READING – March 10, 2020
Page 2 of 4
Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein
by reference and adopted as findings and determinations of the Town Council.
Section 2. Addition of Section 5.08.210 to Title 5 of the Avon Municipal Code. Section
5.08.210 “Optional Premises Licenses” is added to Title 5, Chapter 5.08 of the Avon Municipal
Code to read as set forth in Exhibit A: Addition of Section 5.08.210 to the Avon Municipal
Code.
Section 3. Codification Amendments. The codifier of the Town’s Municipal Code,
Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes
as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal
Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any
typographical error in the enacted regulations, provided that such correction shall not
substantively change any provision of the regulations adopted in this Ordinance. Such
corrections may include spelling, reference, citation, enumeration, and grammatical errors.
Section 4. 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 term “application” means and
includes an application of an ordinance or any part thereof, whether considered or construed
alone or together with another ordinance or ordinances, or part thereof, of the Town.
Section 5. Effective Date. This Ordinance shall take effect thirty (30) days after final
adoption in accordance with Section 6.4 of the Avon Home Rule Charter.
Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this
Ordinance is promulgated under the general police power of the Town of Avon, 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 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to
release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or
affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability
incurred, or any cause or causes of action acquired or existing which may have been incurred or
obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any
such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall
be treated and held as remaining in force for the purpose of sustaining any and all proper actions,
suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and
for the purpose of sustaining any judgment, decree or order which can or may be rendered,
Ordinance 20-03 Optional Premise Liquor License
SECOND READING – March 10, 2020
Page 3 of 4
entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or
declaring such penalty or liability or enforcing such right, and shall be treated and held as
remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and
appeals pending before any court or administrative tribunal.
Section 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance
with Chapter 1.16 of the Avon Municipal Code.
INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC
HEARING on February 25, 2020 and setting such public hearing for March 10, 2020 at the
Council Chambers of the Avon Town Hall, located at 100 Mikaela Way, Avon, Colorado.
BY: ATTEST:
____________________________ ___________________________
Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk
ADOPTED ON SECOND AND FINAL READING on March 10, 2020.
BY: ATTEST:
____________________________ ____________________________
Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk
APPROVED AS TO FORM:
____________________________
Paul Wisor, Town Attorney
970-748-4065 ddempsey@avon.org
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Council Members
FROM: Danita Dempsey, CASE Manager; Paul Wisor, Town Attorney
RE: Resolution 20-03 – Designating the Event Venue, Setting
Forth Details to Contain the Premise, and Designating Storage
for the Optional Premise Liquor License
DATE: March 4, 2020
SUMMARY: On February 25, 2020 Town Council considered Ordinance 20 -03, which authorizes provided
staff to apply to the Local Liquor Licensing Authority to hold events and sell alcohol at such events located at
outdoor sports and recreational facilities pursuant to an Optional Premises License. Assuming Ordinance
20-03 is passed on second reading, Resolution 20-03 will designate the event venue for the Optional Premise
License, identify boundaries which contain the premises and designate a storage location for alcohol that is
to be sold at events.
BACKGROUND: Subject to the adoption of Ordinance 20-03 on March 10, Colorado Department of Revenue
Liquor Enforcement rules and regulations require the Town to designate a venue of its Optional Premises
Liquor License, identify efforts to post perimeter signage aro und the venue and designate a storage area for
the alcohol to be consumed at the venue.
PROPOSED RESOLUTION: Resolution 20-03 1.) Designates Harry A. Nottingham Park as the “Optional
Premises” which is identified in Exhibit A. 2.) Requires the perimeter boundary surrounding the Event Venue
have signage stating, “No Alcohol Beyond This Point” and “No Outside Alcohol Allowed”. 3.) Designates the
basement of the Avon Performance Pavilion as the storage area for alcohol used at the licensed venue.
FINANCIAL CONSIDERATIONS: As noted previously, an Optional Premises Liquor License could
potentially allow the Town to generate an additional $40,000 in net revenue each year. Processing such a
license through the state will cost approximately $2,500. The local license authority fee is $1,075 in the first
year and $75 for renewals which is required by State law.
RECOMMENDATION: Staff recommends approval of Resolution 20-03.
PROPOSED MOTION: “I move to approve Resolution 20-03, thereby designating Harry A Nottingham Park
to be the designated event premises for the Optional Premises Liquor Lic ense – local option and details
related thereto.”
Thank you, Paul and Danita
ATTACHMENTS:
Exhibit A – Optional Premises License Boundary
Exhibit B – Resolution 20-03
Res. 20-03 – Designating Option Premises Event Venue and Storage Area
Page 1 of 3
TOWN OF AVON, COLORADO
RESOLUTION NO. 20-03
SERIES 2020
A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO, DESIGNATING THE EVENT VENUE, SETTING FORTH
DETAILS TO CONTAIN THE PREMISE, AND DESIGNATING THE
ALCOHOL STORAGE FOR THE OPTIONAL PREMISES LIQUOR
LICENSE – LOCAL OPTION FOR NOTTINGHAM PARK.
WHEREAS, in accordance with §44-3-310(1), C.R.S, “Optional premises license – local
option,” the Town Council of the Town of Avon approved Ordinance 20-03, Series of 2020
allowing optional premises licenses; and
WHEREAS, the Town Council of the Town of Avon wishes to identify its licensed premises
per Colorado Department of Revenue license application DR 8404 requirements; and
WHEREAS, the Town Council of the Town of Avon hereby acknowledges Harry A.
Nottingham Park is an “Optional Premises” pursuant to §44-3-103(33)(a)(II), C.R.S. of the Colorado
Liquor Code; and
WHEREAS, the Town Council of the Town of Avon hereby designates Harry A.
Nottingham Park and its identified boundaries as the designated venue for its optional premises liquor
license – local option; and
WHEREAS, the Town Council of the Town of Avon requires the perimeter boundary
surrounding the Nottingham Park to have conspicuous signage stating, “No Alcohol Beyond This
Point” and “No Outside Alcohol Allowed”; and
WHEREAS, pursuant to C.R.S. 44-3-310, the Town Council of the Town of Avon wishes to
designate the basement of the Avon Performance Pavilion as the storage area for alcohol used at the
licensed venue;
WHEREAS, the Avon Town Council hereby finds, determines and declares that this
Resolution will promote the health, safety and general welfare of the Avon community.
NOW, THERFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO the following:
Section 1. The Town Council of the Town of Avon hereby acknowledges Harry A. Nottingham
Park, as further described in Exhibit A hereto, to be the designated event premises for the optional
premises liquor license – local option.
Section 2. The Town Council of the Town of Avon requires “No Alcohol Beyond This Point”
and “No Outside Alcohol Allowed” signage on the perimeter boundary of the licensed premises.
Res. 20-03 – Designating Option Premises Event Venue and Storage Area
Page 2 of 3
Section 3. The Town Council of the Town of Avon hereby acknowledges the basement of the
Avon Performance Pavilion as the designated alcohol storage area.
Section 4. The effective date of this resolution shall be immediately upon adoption.
ADOPTED this 10th day of March 2020.
AVON TOWN COUNCIL
By:
__________________________________
Sarah Smith-Hymes, Mayor
Attest:
________________________________
Brenda Torres, Town Clerk
Res. 20-03 – Designating Option Premises Event Venue and Storage Area
Page 3 of 3
Exhibit A
970-748-4065 ddempsey@avon.org
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Council Members
FROM: Danita Dempsey, CASE Manager; Paul Wisor, Town Attorney
RE: Resolution 20-04 – Designating the Event Manager
for the Optional Premise Liquor License
DATE: March 4, 2020
SUMMARY: On February 25, 2020 Town Council considered Ordinance 20 -03, which authorizes staff to
apply to the Local Liquor Licensing Authority to hold events and sell alcohol at such events located at outdoor
sports and recreational facilities pursuant to an Option al Premises License. Assuming Ordinance 20-03 is
passed on second reading, Resolution 20-04 will designate the event manager(s) for the Optional Premise
License.
BACKGROUND: Subject to the adoption of Ordinance 20-03 on March 10, Colorado Department of Revenue
Liquor Enforcement rules and regulations require the Town to designate, by resolution, an event manager
for the Town of Avon’s Optional Premise Liquor License – local option.
PROPOSED RESOLUTION: Resolution 20-04 Designates Culture, Arts & Special Events Manager, Danita
Dempsey and Mikaela Liewer, Special Events Coordinator, as the Town of Avon’s Optional Premises Liquor
License – local option event managers.
FINANCIAL CONSIDERATIONS: As noted previously, an Optional Premises Liquor License could
potentially allow the Town to generate an additional $40,000 in net revenue each year. Processing such a
license through the state will cost approximately $2,500. The local license authority fee is $1,075 in the first
year and $75 for renewals which is required by State law.
RECOMMENDATION: Staff recommends approval of Resolution 20-04.
PROPOSED MOTION: “I move to approve First Reading of Resolution 20-04, designating Culture, Arts, &
Special Event Manager, Danita Dempsey and Special Event Coordinator, Mikaela Liewer as the Town of
Avon’s optional premise liquor license – local option event managers.””
Thank you, Paul and Danita
ATTACHMENTS:
Exhibit A – Resolution 20-04
Res. 20-04 – Designation of Event Manager
Page 1 of 2
TOWN OF AVON, COLORADO
RESOLUTION NO. 20-04
SERIES 2020
A RESOLUTION BY THE TOWN COUNCIL OF THE TOWN OF AVON,
COLORADO, DESIGNATING THE EVENT MANAGER FOR THE
TOWN OF AVON’S OPTIONAL PREMISES LIQUOR LICENSE –
LOCAL OPTION.
WHEREAS, §44-3-310(1), C.R.S. “Optional premises license – local option,” states that
no optional premises license, or optional premises permit shall be issued within any municipality
unless the governing body of the municipality has adopted an ordinance allowing such license and
adopted specific standards for the issuance of optional premises licenses; and,
WHEREAS, the Town Council of the Town of Avon approved Ordinance 20-03, Series
of 2020, adding Section 5.08.210 to Title 5 “Business Taxes, Licenses, and Regulations,” Chapter
5.08 “Liquor Licenses” to the Municipal Code of the Town of Avon, Colorado to allow for optional
premises liquor licenses; and
WHEREAS, the Town Council of the Town of Avon has set specific standards for the
issuance of an optional premises license for the Town’s use at the Harry A. Nottingham Park for
events at which alcohol may be served; and
WHEREAS, the Town Council of the Town of Avon deems it necessary to adhere to the
Colorado Department of Revenue Liquor Enforcement application requirement to designate an
event manager for the Town of Avon’s optional premises liquor license – local option; and
WHEREAS, the Town Council of the Town of Avon wishes to name Danita Dempsey,
Culture, Arts & Special Events Manager and Mikaela Liewer, Special Events Coordinator, as the
Town of Avon’s optional premises liquor license – local option event manager(s); and
WHEREAS, the Avon Town Council hereby finds, determines and declares that this
Resolution will promote the health, safety and general welfare of the Avon community.
NOW, THERFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO the following:
Section 1. The above and foregoing recitals are incorporated herein by reference and adopted
as findings and determinations of the Town Council.
Section 2. The Avon Town Council hereby appoints Danita Dempsey, Culture, Arts & Special
Events Manager and Mikaela Liewer, Special Events Coordinator, as the Town of Avon’s optional
premises liquor license – local option event manager(s).
Res. 20-04 – Designation of Event Manager
Page 2 of 2
ADOPTED this 10th day of March 2020.
AVON TOWN COUNCIL
By:
__________________________________
Sarah Smith-Hymes, Mayor
Attest:
________________________________
Brenda Torres, Town Clerk
979-748-4065 ddempsey@avon.org
TO: Honorable Mayor Smith Hymes and Council members
FROM: Danita Dempsey, CASE Manager
RE: Resolution 20-05, Approving the Expenditure of
Community Enhancement Funds
DATE: March 2, 2020
SUMMARY: Pursuant to the Town’s franchise agreement with Holy Cross Energy, the Town receives one
percent (1%) of the gross revenue collected from the sale of electricity from within the town’s borders. The
funds are eligible to be expended for limited purposes to include sponsorship of special community events.
Resolution 20-05 is being presented to the Town Council to formally approve the expenditure of funds from
the Community Enhancement Fund for the “Dancing in the Park” special event. The resolution is required
pursuant to the Town’s franchise agreement with Holy Cross Energy.
BACKGROUND: The Town would like to allocate funds from the Community Enhancement Fund to
support the first of two Dancing in the Park events on August 3, 2020. Dancing in the Park is produced by
the Vail Dance Festival a program of the Vail Valley Foundation (VVF). The financial support allows for a
very special curated program by renowned artist/dancer Lil’ Buck called “Lil Buck & Friends” presenting a
strong community feel under the overall direction of Artistic Director Damian Woetzel. Additionally, the
VVF’s new Electric Magic Bus will be showcased at the event allowing for an active learning opportunity in
cooperation with Holy Cross regarding vehicle electrification. The event creates a win-win combining the
Vail Dance Festival, YouthPower365 and Town of Avon.
FINANCIAL CONSIDERATIONS: The 2020 budget provides for a transfer-in from the Community
Enhancement Fund to the General Government program in the amount of $30,000 for the purpose of
supporting the Dancing in the Park special event.
RECOMMENDATION: Staff recommends the approval of Resolution No 20-05 which seeks authorization
from Holy Cross Energy to apply funds to the Dancing in the Park special event on August 3, 2020.
PROPOSED MOTION: “I move to approve Resolution 20-05, a Resolution Approving the Expenditure of funds
from the Community Enhancement Fund as required under franchise agreement with Holy Cross”.
Thank you, Danita Dempsey
ATTACHMENTS:
Exhibit A – Proposed Project Description
Exhibit B - Holy Cross Energy Community Enhancement Fund History
979-748-4065 ddempsey@avon.org
EXHIBIT A
HOLY CROSS ENERGY COMMUNITY ENHANCEMENT FUND
PROPOSED PROJECT
Dancing in the Park; Monday, August 3, 2020
In 2020, “Dancing in the Park” will celebrate its sixth year of collaboration between the Vail Dance Festival
(VDF) and the Town of Avon. Through this collaboration, the Town and VDF strive to provide the Town and
surrounding local communities an event that brings diversity to the Town’s special event programming and
adds to cultural enrichment by providing the highest levels of dance and production, free to the public.
Dancing in the Park programming and production shall be under the experienced direction of VDF Artistic
Director, Damian Woetzel in coordination dance company Artistic Directors, and VDF Director of
Operations, Martin Nieves. Dancing in the Park begins at 5:00 p.m. with performances starting at 5:30 p.m.
Performances, together with an intermission and/or any post-performance events, will conclude by 7:30
p.m. The VDF looks to add an interactive element to each evening with audience participation and/or
movement to further engage the public and patrons in attendance.
The VDF will be producing two Dancing in the Park events this summer – Monday, August 3rd featuring Lil’
Buck and Thursday and August 6th featuring BalletX. The cost to the Town for both productions is
$60,000. The Town is seeking $30,000 in support of the Lil’ Buck production on Monday, August 3 rd. The
VDF is curating a dynamic community-based program with Lil’ Buck and developing an on-site activation
with YouthPower365 and the newly acquired all electric Magic Bus. The new electric Magic Bus received
funding support through Holy Cross Electric.
The Town feels Dancing in the Park fits the Town’s brand exceptionally well, diversifies the special event
programming, offers placemaking in a creative and engaging environment, and brings awareness and
visibility to our culture, arts and events.
EXHIBIT B
COMMUNITY ENHANCEMENT FUND HISTORY
Original Revised
Calendar Amount Budget Budget Actual Ending
Year Received Budget Request Amount Amount Expenditure Balance
2001 1 4,000$ -$ -$ -$ 4,000$
2001 1 32,356 - - - 36,356
2002 1 42,824 - - - 79,180
2003 1 44,766 - - - 123,946
2004 1 50,664 - - - 174,610
2005 1 60,699 - - - 235,309
2006 64,133 - - - 299,442
Purchase of Wind Power 60,000 - -
2007 2 62,907 Energy Audit - 28,000 26,252 336,097
Whitewater Rodeo 36,000 36,000 36,000
LED Holiday Lighting 10,800 10,800 10,800
2008 74,585 Appraisal for Open Space 15,000 15,000 15,000 348,882
Fleet Maintenance Lighting 20,000 20,000 20,000
Ironkids 30,000 30,000 30,000
2009 70,136 LED Holiday Lighting 10,000 10,000 10,000 359,018
Avon Rec Center Lighting 40,000 29,000 29,000
Ironkids 20,000 20,000 20,000
Nottingham Park Pavilion 3 200,000 40,000 40,000
2010 71,067 Fishing Pier 20,000 20,000 20,000 321,085
Ironkids 10,000 10,000 10,000
World Alpine Championships 50,000 - -
2011 74,383 Undergrounding 4 100,000 - - 385,468
2012 72,862 Mall Improvement Project 5 250,000 - -
Undergrounding 4 100,000 - - 458,330
2013 84,398 Heat Recovery Expansion 6 350,000 - - 542,728
2014 78,268 Nottingham Park Restrooms 275,000 - -
Avon Mall Improvement - 608,000 608,000 12,996
2015 77,473 NA - - - 90,469
Page 1
EXHIBIT B
COMMUNITY ENHANCEMENT FUND HISTORY
2016 71,736 Undergrounding 100,000 - - 62,205
2017 78,545 Undergrounding 158,000 142,000 140,750 -
2018 83,009 Undergrounding 80,000 80,000 - 83,009
2019 80,000 Undergrounding 80,000 - - 163,009
2020 80,000 NA - - - 243,009
Notes:
6) The original proposal to extend the Town's Heat Recovery system along the length of the Mall and
connect with the Wyndham and Avon Station was re-evaluated during the process for approving the
Wyndham development on Lot 61.
1) Amounts received from 2001-2005 were accounted for in the General Fund. In 2006 a separate fund
was established for the Community Enhancement monies. A transfer from the General Fund in the
amount of $235,309 was made to establish the new Community Enhancement Fund. Because of an
oversight, the amount transferred was $2,000 more than the actual amounts received from 2001 -2005.
2) In 2007, the Town budgeted $60,000 for purchasing wind power. It was subsequently learned that
the use of Community Enhancement funds was not allowed for this purpose. Subsequently, $26,252
was used for an energy audit of the Town's facilities.
3) The Nottingham Park Pavilion project for which Community Enhancment funds were approved in the
amount of $200,000, was subsequently removed from the Town's long-range CIP program due to the
cost of the project and lack of Town funds available. A total of $40,000 in Community Enhancement
funds was used for the design cost, with the remained turned back as unused.
4) The US Hwy 6 Trail undergrounding project has been delayed due to high project costs related to the
Eagle Valley Trails projects.
5) The Mall Improvement Project was delayed due to the impending development of Lot 61.
Page 2
TOWN OF AVON
RESOLUTION 20-05
SERIES OF 2020
A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF
AVON, COLORADO, APPROVING THE EXPENDITURE OF
COMMUNITY ENHANCEMENT FUNDS FROM HOLY CROSS
ENERGY AS PROVIDED FOR IN ARTICLE 11
WHEREAS, the Town Council of the Town of Avon, Colorado, has approved Ordinance No.
2001-01, Series of 2001 which granted a franchise to Holy Cross Energy the (“Company”); and
WHEREAS, Article 11 of Ordinance No. 2001-01 provides that Holy Cross Energy will
voluntarily make monetary resources available to the Town, through the Holy Cross Community
Enhancement Fund (the “Community Enhancement Fund”) for programs designed to make a
difference in people's lives and the communities in which they reside; and
WHEREAS, Section 11.1 of Ordin a nce No. 2001 -01 limits the use for which such funds
shall be spent shall to: (1) Beautification projects; (2) Energy conservation projects; (3)
Equipment and technology upgrades for schools; (4) Scholarship funds; (5) Acquisition of
open space and/or park land and development thereof; (6) Sponsorship of special
community events; and, (7) Undergrounding of overhead electric and other utility lines.
Funds made available under this Article may be spent for other purposes only with the
express written consent o f the Company; and,
WHEREAS, Section 11.4 of Ordinance No. 2001 -01, provides that the Town Council is
required to approve the expenditure of funds from the Community Enhancement Fund by
resolution or ordinance , and such resolution or ordinance shall clearl y describe the nature
and purpose of the project for which the expenditure is made and that prior to any
expenditure, the Town shall notify the Company of its intended use of the funds. Unless the
Company objects, in writin g, prior to such expenditure, the Company shall have waived its
right to object in the future if the funds are expended for the use identified in the notice ; and,
WHEREAS, the Avon Town Council hereby finds, determines and declares that this Resolution
will promote the health, safety and general welfare of the Avon community.
NOW THEREFORE, BE IT RESOLVED, BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. The Avon Town Council approves utilizing funds from the Community
Enhancement Fund as shown in Exhibit A attached hereto. Th e Town Council believes that
the expenditure of these funds meets the intent and purpose of Article 11 of Ordinance No.
2001-01 and the projects as described in Article 11.1 hereof.
Section 2. Town staff shall forward this resolution to Holy Cross Energy to comply with
Section 11.4 of Ordinance No. 2001-01, Series of 2001.
Res 20-05 - APPROVING USE OF COMMUNITY ENHANCEMENT FUNDS – March 10, 2020
Page 2 of 2
ADOPTED this 10th day of March 2020.
AVON TOWN COUNCIL
By: __________________________________
Sarah Smith-Hymes, Mayor
Attest: ________________________________
Brenda Torres, Town Clerk
TO: Honorable Mayor Smith Hymes and Council members FROM: Matt Pielsticker, Planning Director
RE: Lot B Hotel – Design Extension Request
DATE: March 5, 2020
SUMMARY: Before Council is action on a request by a property owner to extend a Major Design and
Development Plan and Alternative Equivalent Compliance application (collectively the “Development
Approvals”) for a hotel project on Lot B. The Development Approvals are currently set to expire on June
13, 2020. A hyperlink to the Development Approvals is included as Attachment A to this report. As
documented in the written request (Attachment B), the property has been acquired by new owners and
swift progress has been made toward a feasible project.
There are no review criteria for this type of request; the Town Council may consider any pertinent factors
when considering the extension. The Avon Municipal Code allows the Council at their sole discretion to
approve multiple extensions and extensions for periods greater than one year. Based on the progress
made with the new ownership team and the direction the design modifications are headed, Staff has
evaluated this request and finds no reason to not grant and extend the Development Approvals as
requested.
TIMELINE: The public meeting and approval history for this project is as follows:
• November 1, 2016 & November 14, 2016 – PZC public hearing and recommendation.
• December 5, 2016 & December 13, 2016 – TC approval for two (2) years.
• November 13, 2018 – TC approval for one (1) additional year.
• November 12, 2019 – TC approval of six (6) month extension; June 13, 2020 expiratio.n
OPTIONS
• Approve the request, thereby approving the extension until June
• Approve a modified duration.
• Continue request to a future meeting.
• Deny the request.
RECOMMENDATION: Staff recommends approval to the one (1) year extension to the Development
Approvals.
RECOMMENDED MOTION: “I move to approve a one (1) year extension to the Development Approvals
for the Avon Hotel on Lot B, Avon Center at Beaver Creek Subdivision, now set to expire June 13, 2021.”
ATTACHMENTS
A – Development Approvals
B – Extension Request letter from Silverton Holdings, LLC, dated February 21, 2020
970-748-4045 jhildreth@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer
RE: Notice of Award – Railroad Bridge LED Signs
DATE: March 6, 2020
SUMMARY: Authorize Staff to issue Notice of Award for construction of 2 LED Signs on the Avon Road
railroad bridge to Freeman Signs for $55,183.25. The signs will be placed on the railroad bridge over Avon
Road where the existing banners are hung.
DISCUSSION: Staff obtained 3 quotes for 2 LED signs proposed to be placed on the railroad bridge over
Avon Road. These signs are recommended to replace the banners that are manually hung on the bridge
for special events in Avon and Beaver Creek. The LED signs will allow staff to wirelessly change the
messaging and improve the quality of the signage. Attachment A is a graphical representation of what the
sign will look like when installed.
A memo from David McWilliams is attached that summarizes the Planning and Zoning Commission
approval, including their concerns, and a policy statement outlining the sign usage guidelines. As part of
the Planning and Zoning Commission approval, they recommend Council to direct Staff to initiate an
amendment to the sign code as outlined in the attached memo.
Additional quotes were solicited from Schlosser Signs in the amount of $60,688 and Signdealz in the
amount of $62,607.81. Additional electrical work will be required and is estimated to cost $10,000.
Construction Schedule: The proposed work is tentatively scheduled to occur in April once the ground
defrosts and the electrical conduit can be installed.
FINANCIAL CONSIDERATIONS: $75,000 is budgeted in the Town of Avon 2020 Capital Projects Fund for
this project. The project cost estimate is shown in Table 1 below and includes a contingency.
Table 1: Railroad Bridge LED Signs
Budget in Capital Projects Fund $75,000
LED Sign Installation $55,183.23
Electrical Services $10,000
Contingency $9,816.75
Total $75,000
RECOMMENDATION: Staff requests Council authorization to award the railroad LED sign contract to
Freeman signs in the amount of $55,183.25 and initiate an amendment to the sign code as outlined in the
attached memo.
Page 2 of 2
PROPOSED MOTION: Motion to authorize issuance of Notice of Award for the railroad bridge LED sign
contract to Freeman Signs as approved in the Town of Avon 2020 Capital Projects Fund and authorize
Staff to initiate an amendment to the sign code as outlined in the attached memo.
Thank you, Justin
ATTACHMENTS
Attachment A - Graphical Representation of LED Sign
Attachment B - Planning and Zoning Summary – RR Bridge Sign Design
ART SUPERIMPOSED ON PHOTO, SHOWN AT APPROXIMATE RELATIVE SIZE
FREEMAN SIGNS IS A UL LISTED
SIGN MANUFACTURER
NEW S/F 10 MM FULL COLOR EMC SCALE: 1/2" = 1'-0"
QUANTITY: 1 EA PER SIDE (2 TOTAL), MANUFACTURE AND INSTALLA
OF 1
TOWN OF AVON 100 Mikala Way.
AVON, CO.BENZIE MBENZIE@FREEMANSIGNS.NET
19-568
12/26/2019 1
7/15/19 -CHANGED COLOR OF FACES AND CABINET
X X X X X X
& ELECTRIC
13'-6 1/2"13'-6 1/2"3'-1 1/2"4’-0” (+/-)CONCRETE V.O.7"
2"
New S/F 10mm full color Freeman Digital EMC 416x96 matrix,
2” angle iron frame attached to existing concrete over pass, painted black.
SIDE VIEW
1
1
ATTACHMENT A
Attachment B
970-748-4023
TO: Honorable Mayor Smith Hymes and Council members FROM: David McWilliams, AICP, Town Planner
RE: Rail Bridge Sign Design – PZC Summary
DATE: March 4, 2020
SUMMARY: This staff report summarizes the PZC action and discussion of two new Embedded Messaging
Center (EMC) Light Emitting Diode (LED) signs on the railroad bridge above Avon Road. As a courtesy,
Staff presented a plan to PZC on February 4, and the application was denied unanimously due to aesthetic
concerns outlined below and uncertainty of the sign operation. Staff created a policy and application process
for new signs (Attachment 1) to assuage some concerns and presented the update to PZC, who voted 3-2 in
favor of the sign placement. Now, Town Council is requested to approve the contract for the two signs
(Engineer’s Memo) and initiate a code text amendment in order to limit this sign type to government use only.
BACKGROUND: LED signs are included in the 2020 Capital Improvements Program. After a bid process,
Staff presented the Minor Sign Design applications to PZC. While government signs are exempt from review
per code, the Town desires its design review board to have buy-in for these project types.
Southern facing sign location.
Northern facing sign location.
DISCUSSION: While the PZC denial and subsequent approval speak for themselves, Staff encourages a
discussion of some of the points that led to the decisions. Concerns with these signs, as expressed by PZC
include:
Attachment B
970-748-4023 cmcwilliams@avon.org
• Appropriateness of the location in terms
of diminished scenic experience, visual
clutter, and driver distraction.
• Sign illumination providing for an
aesthetic that does not conform to the
Town’s self-image.
• Appearance of a large black rectangle
when the sign has no message.
• Current proliferation and poor usage of
digital signs already present in a narrow
corridor, including Walgreens,
roundabout 4 and 5, and Bob the Bridge
(Beaver Creek sign), pictured right.
• Potential proliferation of additional signs
by private businesses.
• Potential alternatives not explored
including a lower space where Public
Works does not need so long to install
signs and close lanes of traffic.
Overall, the 3-2 approval was made with the
understanding that PZC’s voice would be best
exercised by working with Staff and Town Council
as opposed to an outright denial of the proposal.
OTHER CONSIDERATIONS:
Installation and wiring: The conduit will come
from near the Christy Sports bus stop and run from
behind the façade of the bridge. No wiring will be
visible.
Frame: The signs have minimally visible black
frames made of anodized metal.
CODE AMENDMENT: PZC recommends wording changes to the sign code that eliminates the digital sign
type for private property owners. The Town may not want to allow the business community to change the
character of Town through their proliferation. Town Council is requested to initiate a Code Text Amendment
application. Below is draft language, with red underline indicating language to be added:
(8)Digital Displays, Electronic Message Centers, and electronic changeable copy signs. Auto-oriented
electronic messages, images, and/or changeable copy signs are permitted, for government use only,
along arterial streets, provided that they meet the following criteria:
i. Such signs shall be equipped with automatic dimmers, which shall be programmed to not
exceed three tenths (.3) footcandles over ambient light levels.
Attachment B
970-748-4023 cmcwilliams@avon.org
ii. Signs shall not cause distractions to drivers with moving images or similar effects.
iii. Such signs are subject to a Minor Sign Application and public hearing with PZC.
STAFF RECOMMENDATION: Staff recommends approving the contract per the Engineer’s report and
initiating a Code Text Amendment with the draft language.
OPTIONS: Town Council could choose to take no action on the contract or for the Code Text Amendment.
PROPOSED MOTION: “I move to initiate a Code Text Amendment to allow digital displays for government
use only.”
Thank you,
David McWilliams
ATTACHMENT:
1. Railroad Bridge Banner Application and Policy
P&Z Memo - Attachment 1
RAILROAD BRIDGE BANNER APPLICATION
Town of Avon, Colorado
100 Mikaela Way, PO Box 975, Avon, CO 81620
P: (970) 748-4065 Email: ddempsey@avon.org
G ENERAL INFORMATION AND REQUIREMENTS
LED BANNERs SHALL REPRESENT COMMUNITY EVENTS OR SHALL BE SPONSORED BY A NON-PROFIT ORGANIZATION (NPO). THIS
TOWN SERVICE IS INTENDED FOR NON-COMMERCIAL ADVERTISEMENT OF EVENTS IN AVON AND BEAVER CREEK.
LED BANNER ARE ONLY PERMITTED FOR A MAXIMUM OF TEN (10) DAYS AND A MINIMUM OF ONE (1) FULL DAY.
BANNER PLACEMENT IS BASED UPON AVAILABILITY AND AT THE DISCRETION OF THE TOWN STAFF.
APPLICATION FEE IS $150.00 FOR A WEEK AND PRORATED BASED ON THE NUMBER OF DAYS THE SIGN WILL BE DISPLAYED. THE
MINIMUM FEE IS $50 FOR REVIEW.
REQUIREMENTS:
WHITE OR OFF-WHITE COLORS ARE ONLY ALLOWED ON 20% OF THE SIGN AREA TO REDUCE GLARE
ONLY FLAT TEXT IS PERMITTED (NO 3D LETTERS)
USING ONLY ONE LETTER STYLE IN A SINGLE SIGN DESIGN IS PREFERRED
UPPER-CASE ONLY SCRIPT IS PROHIBITED
ONLY USE HIGH RESOLUTION GRAPHICS / IMAGES
USE HIGH CONTRAST COLORS LIKE DARK GREEN OR YELLOW. IF YOU NEED TO USE COMPLIMENTARY COLORS, MAKE SURE TO ADD
A CONTRASTING THIRD COLOR TO BRING DEFINITION.
EVENT INFORMATION
NAME OF EVENT: DATES FOR BANNER DISPLAY:
NAME OF BUSINESS/ORGANIZATION: NAME OF APPLICANT:
MAILING ADDRESS: PHONE / EMAIL:
SIGNATURE OF APPLICANT: DATE:
SIGN BEST PRACTICES
Simplicity, creativity and freshness are the fundamental for creating led design content
Use short, meaningful and powerful words and copy for faster comprehension
Use sans-serif fonts (i.e. verdana or tahoma)
Alternatively, bold text interfaces (ie. Arial black and impact) is effective to bring the text out of the background
Fill at least 1/4 of the screen with large text
some best color matches are: black on yellow, black on white, yellow on black, yellow on blue, white on blue, white on green and green on
white
Add border to bring focus directly to the center of the sign
Try to follow these rules:
o Less is more
o Make the letters big!
o What does the audience need to know?
o Answer these questions: who, what, when, where
o Avoid date and time confusion
o Overcrowded signs with too many visuals, texts, or words are
not permitted
STAFF APPROVALS
FESTIVALS & SPECIAL EVENTS: DATE:
COMMUNICATIONS MANAGER: DATE:
P&Z Memo - Attachment 1
Banner Policy
• Signs will be only be activated during daylight hours +1 but may operate at least until 7 pm and no
later than 9 pm
• Foot Candles emitted shall not exceed three tenths (.3) footcandles over ambient light levels. This
level may be adjusted down after dark
• Both LED panels will have the same graphic, except if emergency signs need to be different.
• The LED panels will go completely dormant between programmed signs and at night
• Only one slide is allowed per day and only stationary slides without any animations are allowed
• Emergency signs – AASHTO and CDOT (road engineering) standards will dictate the display of
signs during emergency. Orange block letters shall be used.
970-748-4045 jhildreth@avon.org
TO: Honorable Mayor Smith Hymes and Council members
FROM: Justin Hildreth, Town Engineer
RE: Notice of Award - Eaglebend Drive Asphalt Overlay Project
DATE: February 14, 2020
SUMMARY: Authorize Staff to issue Notice of Award for construction of the 2020 Street Improvements –
Eaglebend Drive Asphalt Overlay Project as approved in the Town of Avon 2020 Capital Projects Fund.
DISCUSSION: The Eaglebend Drive Asphalt Overlay Project generally consists of asphalt milling, asphalt
repair, asphalt overlay and pavement marking along Eaglebend Drive between Stonebridge Drive and the
east cul-de-sac.
Staff advertised the Eaglebend Drive Asphalt Overlay Project for (3) weeks on the Town website, local
newspapers, and on Bidnet.com. The Bid Opening was held on February 13, 2020 and three bids were
received: United Companies with a bid of $186,587, 360 Paving LLC at $181,277, and Frontier Paving, Inc.
with a bid of $199,424. Each of the submitting contractors are qualified to construct the project.
Construction Schedule: The proposed work is tentatively scheduled to begin in June and a two-week
construction period is anticipated. Contractually, the work must be completed by August 1, 2020.
FINANCIAL CONSIDERATIONS: The construction Contract for the Project will be funded from the 2020
Street Improvements Projects as approved in the Town of Avon 2020 Capital Projects Fund. The Project cost
estimate is shown in Table 1 below and includes 10 % contingency.
Table 1: 2020 Street Improvements - Eaglebend Drive Asphalt Overlay Project Cost Estimate
Available Funds Budget $300,000
Construction Cost $181,277
Geotechnical Testing Services $5,000
Contingency (10 %) $18,128
Total $204,405
RECOMMENDATION: Staff requests Council authorization to award the Eaglebend Drive Asphalt Overlay
Project Contract to the low bidder, 360 Paving, LLC, in the amount of $181,277.
PROPOSED MOTION: Motion to authorize issuance of Notice of Award for the Eaglebend Drive Asphalt
Overlay Project contract to the low bidder, 360 Paving, LLC, in the amount of $181,277. as approved in the
Town of Avon 2020 Capital Projects Fund.
Thank you, Justin
970-748-4045 jhildreth@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer
RE: Notice of Award – Yoder Avenue Asphalt Overlay Project
DATE: March 5, 2020
SUMMARY: Authorize Staff to issue Notice of Award for construction of the 2020 Street Improvements –
Yoder Avenue Asphalt Overlay Project as approved in the Town of Avon 2020 Capital Projects Fund.
DISCUSSION: The Yoder Avenue Asphalt Overlay Project generally consists of asphalt milling, concrete
curb and sidewalk replacement in select areas, replacement of concrete curb ramps to achieve ADA
compliance, asphalt repair, asphalt overlay and pavement marking along the length of the road.
Staff advertised the Yoder Avenue Asphalt Overlay Project for (3) weeks on the Town website, local
newspapers, and on Bidnet.com. The Bid Opening was held on February 27, 2020 and four bids were
received: Frontier Paving, Inc. with a bid of $207,519, Elam Construction at $228,392, United Companies
with a bid of $184,925, and 360 Paving LLC at $209,106, Each of the submitting contractors are qualified to
construct the project.
Construction Schedule: The proposed work is tentatively scheduled to begin in June and construction is
anticipated to take 2 months. Contractually, the work must be completed by September 1, 2020.
FINANCIAL CONSIDERATIONS: The construction contract for the project will be funded from the 2020 Street
Improvements Projects budgeted as approved in the Town of Avon 2020 Capital Projects Fund. The Project
cost estimate is shown in Table 1 below and includes 10 % contingency.
Table 1: 2020 Street Improvements – Yoder Avenue Asphalt Overlay Project Cost Estimate
Available Funds Budget $550,000
Construction Cost $184,925
Geotechnical Testing Services $7,000
Contingency (10 %) $18,493
Total $210,418
RECOMMENDATION: Staff requests Council authorization to award the Yoder Avenue Asphalt Overlay
Project Contract to the low bidder, United Companies, in the amount of $184,925.
PROPOSED MOTION: Motion to authorize issuance of Notice of Award for the Yoder Avenue Asphalt
Overlay Project contract to the low bidder, United Companies, in the amount of $184,925 as approved in
the Town of Avon 2020 Capital Projects Fund.
Thank you, Justin
970-748-4413 mpielsticker@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Matt Pielsticker, Planning Director
RE: Record of Decision for ERWSD 1041 Permit
DATE: March 4, 2020
SUMMARY: After conducting a public hearing at the February 25, 2020 meeting, the Town Council
approved Eagle River Water and Sanitation District’s 1041 permit application for wastewater plant
improvements. The Avon Development Code requires that the Town Council adopt written findings
documenting the decision and conditions attached to the approval. At the public hearing Staff’s
recommended findings and conditions were modified by Council’s motion and vote. The attached Findings
of Fact and Record of Decision reflects Council’s action and Staff is seeking final action.
RECOMMENDATION: Staff requests Council approval.
PROPOSED MOTION: “I move to approve the Findings of Fact and Record of Decision for Eagle River
Water and Sanitation District’s 1041 permit.”
ATTACHMENT: Findings of Fact and Record of Decision
Thank you, Matt
AVON TOWN COUNCIL
FINDINGS OF FACT AND RECORD OF DECISION
EAGLE RIVER WATER AND SANITATION APPLICATION FOR 1041 PERMIT
AVON WASTEWATER TREATEMENT PLANT IMPROVEMENTS
DATE OF PUBLIC HEARING: February 25, 2020
APPLICATION TYPE: 1041 Permit
FILE NUMBER: TEN19001
PROPERTY LOCATION: Tract N, Block 3, Benchmark at Beaver Creek
APPLICANT/OWNER: Eagle River Water and Sanitation District
_____________________________________________________________________________
This Record of Decision is made in accordance with the Avon Development Code Section
7.16.150(b):
DECISION:
Based upon these written Findings of Fact, the Council hereby APPROVES the Application.
FINDINGS:
1. The development application is complete;
2. The development application provides sufficient information to determine that the
development application complies with the relevant review criteria;
3. The development application complies with the goals and policies of the Avon
Comprehensive Plan including:
a. Goal G.1, Protect Avon’s unique natural setting and its open spaces;
b. Policy G.1.2, Maintain the Eagle River as a valued resource in accordance with
the most recent Eagle River Watershed Plan;
c. Policy G.1.4, Minimize and mitigate potential development impacts to wildlife
and watersheds;
d. Policy I.1.2, Develop community services and facilities based on demand;
e. Goal J.1, Collaborate with other agencies to implement this plan and to ensure
Avon’s needs and goals are being met;
a. J.1.1, Collaborate with county, regional, state, and federal agencies and adjacent
municipalities on cooperative planning efforts and regional issues;
b. Policy J.1.3, Refer applicable development submittals to regional agencies and
adjacent municipalities to coordinate on regional issues;
4. The demand for public services or infrastructure exceeding current capacity is mitigated
by the development application; and
5. The Guidelines and Requirements of Avon Development Code Section 7.40, 1041
Regulations, have been adhered to as documented in the Application and Staff’s February
20, 2020 report.
CONDITIONS:
1. Construction activities that produce audible noise shall be limited to the hours of 7am to
7pm Monday through Saturday, and 8am to 6pm on Sundays and Holidays;
2. Physical condition of Millie’s Lane will be documented prior to construction. If
significant deterioration of the road surface from construction related activities is
observed, the District must restore the roadway to pre-existing condition or better prior to
the permit being closed;
3. A Minor Subdivision Application is required to modify lot lines prior to building permit
issuance.
4. Prior to the completion of the project, screening alternatives, color schemes, and
architectural elements will be brought before PZC to alleviate south elevation, west
elevations, and comprehensive roof treatment.
5. A new landscape plan must be approved by PZC and installed prior to completion of the
project. The former Hahnewald Barn area shall be planted with appropriate riverine trees
to replace, at a 1:1 ratio or better, any trees removed and not replanted on the adjacent
property (Lot 9 Block 3 Benchmark at Beaver Creek) and to properly screen the Eagle
Valley Trail;
6. The fence design will be presented to Planning Staff for approval before its construction;
7. All lighting on the property shall comply with Avon’s Dark Sky Ordinance before a final
Certificate of Occupancy will be issued;
8. On or before March 1, 2021, and each year thereafter for the life of the permit, ERWSD
shall submit a written report to the Town Council, via the Director, detailing all past
activities conducted by the applicant pursuant to the Permit, including a satisfactory
showing that the Permittee is in compliance with all conditions of the Permit and
applicable regulations; and
9. The financial structure and plans for plant improvements will be implemented as
described in the application, as needed. Revenue Bond issuances proceed and close as
described. Revenue bond and other financial information will be provided to the Town
Attorney for review and comment at the applicant’s expense.
APPROVED BY MOTION on March 10, 2020.
AVON TOWN COUNCIL
By:_______________________
Sarah Smith Hymes, Mayor
Attest:________________________
Brenda Torres, Town Clerk
AVON REGULAR MEETING MINUTES
TUESDAY FEBRUARY 25, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
1. CALL TO ORDER AND ROLL CALL
Mayor Smith Hymes called the meeting to order at 5:02 p.m. A roll call was taken, and Council members
present were Amy Phillips, Tamra Underwood, Scott Prince, Jennie Fancher and Chico Thuon. Councilor Jake
Wolf was absent. Also present were Town Attorney Paul Wisor, Police Chief Greg Daly, Cultural Arts & Special
Events Manager Danita Dempsey, Executive Assistant to the Town Manager Ineke de Jong, Town Manager Eric
Heil, and Town Clerk Brenda Torres.
2. APPROVAL OF AGENDA
Video Start Time: 00:00:20 Part One
Councilor Wolf arrived at 5:03 p.m.
Councilor Prince would like to add a discussion about Corona Virus under Council comments.
Mayor Smith Hymes added agenda item 5.10 for discussion on letter to support preserving current regulations
under the National Environmental Policy Act (NEPA) and object to the White House Council on Environmental
Quality’s proposal to revise these rules.
Councilor Underwood moved to approve the revised agenda as requested. Mayor Pro Tem Phillips seconded
the motion and the motion passed on a vote of 6 to 1. Councilor Wolf voted no.
3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS
Video Start Time: 00:01:46 Part One
No conflicts of interest were disclosed.
4. PUBLIC COMMENT
Video Start Time: 00:01:56 Part One
No public comments were made.
5. BUSINESS ITEMS
5.1. PRESENTATION: STEWARDSHIP OF THE WEST AVON PRESERVE (JESSICA FOULIS, EAGLE VALLEY LAND TRUST)
Video Start Time: 00:02:21 Part One
Jessica Foulis, Executive Director of the Eagle Valley Land Trust, presented on the Stewardship of the
West Avon Preserve and she thanked Council for the support they received this year from Town of Avon
through a Community Grant.
5.2. PUBLIC HEARING ON 1041 APPLICATION FOR AVON WASTEWATER TREATMENT FACILITY IMPROVEMENTS (PLANNING
DIRECTOR MATT PIELSTICKER)
Video Start Time: 00:17:38 Part One
Siri Roman, Jeffrey Schneider and Melissa Marts with the Eagle River Water and Sanitation District
gave a presentation . They mentioned that the project has been in the works for 5 years now and
that t he upcoming water rate increases cannot be avoided because of the large capital
improvement costs to meet upcoming regulatory standards.
AVON REGULAR MEETING MINUTES
TUESDAY FEBRUARY 25, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
The district has worked on community outreach with Liftview owners who will be impacted by the
temporary construction impact and who will be involved with the design along property line and
design of landscape/trees. The Liftview HOA board is supportive of the project, mainly as it will
eliminate odor complaints.
Mayor Smith Hymes opened the public hearing and no public comments were made.
Councilor Underwood asked to amend the conditions of approval in 2 ways. First, amend condition
4 regarding "screening alternatives" and add language on comprehensive roof treatment. Second,
add condition 9, that the financial structure plans are implemented as described.
Councilor Fancher moved to approve the 1041 permit for Eagle River Water and Sanitation D istrict
with the findings and conditions as listed in the staff report with the added amendment s from
Councilor Underwood. Councilor Prince seconded the motion and the motion passed unanimously.
5.3. PRESENTATION: AFFORDABLE HOMES IN EAGLE COUNTY (GEORGE RUTHER, EAGLE COUNTY HOUSING TASK)
Video Start Time: 01:24:21 Part One
Bobby Lipnick, Co-Chair of the Eagle County Housing Task Force, presented. The task force does have
representatives from big employers onboard. Mayor Smith Hymes explained that Council is taking
steps/actions and that Council needs to get with the taskforce to inform them of recent actions. She
would like to have someone from Avon participate in the taskforce if appropriate. Staff explained that
Avon recently passed the primary residence RETT Exemption and has identified all lots that are available
for work force housing which is not many. Few developers have been interested and met with Town
Manager Eric Heil and Planning Director Matt Pielsticker directly. Avon is lacking resources in the form
of land and money. Planning Director Matt Pielsticker suggested the task force could help with the open
house/outreach for Wildwood housing that they are proposing soon.
5.4. WORK SESSION: DEED RESTRICTED PURCHASE PROGRAM (TOWN ATTORNEY PAUL WISOR & TOWN MANAGER ERIC HEIL)
Video Start Time: 00:00:10 Part Two
George Ruther, Town of Vail’s Housing Director, presented the Vail InDeed program and answered
several questions from Council. He talked about lessons learned in Vail: 1) Deed Restrictions are real
estate assets for the town 2) There are no financial risks like there are with new developments 3) Get
clear on mission/vision/values. 4) Create housing policies 5) Keep it simple and prepare for success.
Staff pointed out that Vail’s program seems a workable model to follow.
5.5. WORK SESSION WITH EAGLE VALLEY HUMANE SOCIETY ON LIQUOR SALES DURING SALUTE TO THE USA (TOWN MANAGER
ERIC HEIL)
Video Start Time: 01:16:22 Part Two
Town Manager Eric Heil presented 4 different options. He and Danita Dempsey, Cultural Arts & Special
Events Manager, expressed this will be a good challenge and they are confident that the Town can
execute the program well, and there will be other two events prior to Salute to test out the model. After
Council discussion, Councilor Prince moved to continue this item after item 5.6. Councilor Wolf
seconded the motion and the motion passed unanimously.
AVON REGULAR MEETING MINUTES
TUESDAY FEBRUARY 25, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
5.6. FIRST READING: ORDINANCE 20-03. OPTIONAL PREMISE LICENSE FOR LIQUOR LICENSES AT EVENTS (TOWN ATTORNEY
PAUL WISOR)
Video Start Time: 01:37:25 Part Two
Town Attorney Paul Wisor and Cultural Arts & Special Events Manager Danita Dempsey answered
questions from Council members. The revenues generated by Liquor Sales are intended to flow back
into the Special Events budget. Town Manager Eric Heil mentioned the cost of turning this license on
and off will be $300 total each time.
Councilor Fancher moved to approve First Reading of Ordinance 20-03, thereby adopting a new Chapter
5.08.210 to Title 5 of the Avon Municipal permitting Optional Premises Liquor Licenses and setting a
public hearing date of March 10, 2020. Councilor Wolf seconded the motion and the motion passed
unanimously.
5.5 WORK SESSION WITH EAGLE VALLEY HUMANE SOCIETY ON LIQUOR SALES DURING SALUTE TO THE USA (TOWN MANAGER
ERIC HEIL)
Video Start Time: 01:47:49 Part Two
Back to item 5.5. A poll took place among Council members. Councilor Fancher voted for option 4.
Mayor Pro Tem Phillips voted for option 2 in 2020 and then reassess. Councilor Underwood voted for
option 2 for 2020 and then go for option 4. Councilor Prince voted either option 3 or 4. Councilor Thuon
and Councilor Wolf agreed with Councilor Prince. Mayor Smith Hymes also voted for option 4.
Mayor Pro Tem Phillips wants to go on record that this is going to be one of the hardest days in the
summer to staff an event, especially as big as Salute. She said that if from a staffing perspective, we
spend too much money on staffing, we need to reevaluate. Councilor Prince expressed he would like to
volunteer him and his son to help the bars during Salute. Town Manager Eric Heil said this is going to be
a good challenge and he will be updating Council on the progress done. He invited Council members to
participate in the TIPS training to have a cameo rotation of Council members at Avon LIVE!
5.7. RESOLUTION 20-01, APPROVING FEES-IN-LIEU CALCULATION FOR THE FRACTIONAL REMAINDER OF EMPLOYEE MITIGATION
REQUIREMENTS GENERATED FROM CHAPTER 7.20.100, EMPLOYEE HOUSING MITIGATION (TOWN PLANNER DAVID
MCWILLIAMS)
Video Start Time: 02:01:29 Part Two
Planning Director Matt Pielsticker presented. Councilor Fancher moved to approve Resolution 20-01
Approving Fees-In-Lieu Calculation for the Fractional Remainder of Employee Mitigation Requirements
Generated from Chapter 7.20.100, Employee Housing Mitigation. Councilor Underwood seconded the
motion and the motion passed unanimously.
5.8. PUBLIC HEARING: SECOND READING ORDINANCE 20-02, ADOPTING A NEW CHAPTER 1.15 OF TITLE 1 OF THE AVON
MUNICIPAL CODE ESTABLISHING PERMANENT LOCATIONS FOR POSTING NOTICE OF PUBLIC MEETINGS (TOWN ATTORNEY
PAUL WISOR)
Video Start Time: 02:03:31 Part Two
Town Attorney Paul Wisor presented Ordinance 20-02. Councilor Wolf moved to approve second
reading of Ordinance 20-02 Adopting a New Chapter 1.15 of Title 1 of the Avon Municipal Code
Establishing Permanent Locations for Posting Notice of Public Meetings. Councilor Fancher seconded
the motion and the motion passed unanimously.
AVON REGULAR MEETING MINUTES
TUESDAY FEBRUARY 25, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
5.9. APPROVAL OF MINUTES FROM FEBRUARY 11, 2020 REGULAR COUNCIL MEETING (GENERAL GOVERNMENT INTERN
CHARISE BISHOP)
Video Start Time: 02:04:47 Part Two
Councilor Underwood requested to add a few words after "actively pursuing a resolution for" and add
the word "video" to start times referenced in future minutes. Councilor Underwood moved to approve
the minutes from February 11th, as amended. Mayor Pro Tem Phillips seconded the motion and the
motion passed 6 to 0. Councilor Wolf abstained from the vote as he was not present at the February
11th meeting.
5.10. ADDED ITEM: LETTER OF SUPPORT NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) REGULATIONS
Video Start Time: 02:06:18 Part Two
Councilor Fancher and Mayor Pro Tem Phillips are in fully support of this letter. Councilor Underwood
is supportive but asked to specify it is directed to the White House Council on Environmental Quality in
the address line. Councilor Wolf would like to think it over. Town Attorney Paul Wisor expressed this is
enough direction for staff to use before the March 10th due date.
6. WRITTEN REPORTS
6.1. FEBRUARY 18TH PLANNING AND ZONING COMMISSION MEETING ABSTRACT (PLANNING DIRECTOR MATT PIELSTICKER)
6.2. MONTHLY FINANCIALS REPORT (SENIOR ACCOUNTANT NELLY BURNS)
6.3. DEBT REFINANCING REQUEST FOR PROPOSALS (ASSISTANT TOWN MANAGER AND FINANCE DIRECTOR SCOTT WRIGHT)
7. MAYOR & COUNCIL C OMMENTS & MEETING UPDATES
Video Start Time: 02:10:32 Part Two
Councilor Fancher expressed she is irritated there is no control over the heat on the main level in Town Hall
and that having one person in control of the temperature is ridiculous. Getting the contractor back is essential.
Front door was locked again and propping it open all night is not very energy efficient. These are little glitches,
but they must be addressed. Staff agreed they will investigate this.
Councilor Thuon commented on the Avon Road safety. Blinky lights are necessary as crosswalks are not clearly
identified and action needs to be taken to identify these crosswalks before an incident where someone gets
run over occurs. He also commented that we live in global hub and there should be a line of direction for the
Corona Virus.
Councilor Prince commented on the Corona Virus. He said there is no reason for panic, but we are a tourist-
based economy. He would like staff to look at worst case scenario, does staff have the ability to work from
home? He suggests a quarantine training event for staff to be progressive. He would like feedback from LT on
proper planning and business continuity planning. Staff agreed they will bring a written report to Council.
Councilor Wolf asked about the dogs & cats item listed in the future agendas. Town Manager Eric Heil said it
will be removed if directed by Council. Council agreed.
AVON REGULAR MEETING MINUTES
TUESDAY FEBRUARY 25, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
Mayor Smith Hymes reminded Council about the possibility to testify remotely at CMC in Edwards. On Monday
she testified at CMC in support of HB-1162 and 1163. Both passed out of committee.
8. A DJOURN
There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular
meeting. The time was 9:13 p.m.
These minutes are only a summary of the proceedings of the meeting. They are not intended to be
comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most
accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office, and the
video of the meeting, which is available at www.highfivemedia.org.
RESPECTFULLY SUBMITTED:
Brenda Torres, Town Clerk
APPROVED:
Sarah Smith Hymes ___________________________________
Amy Phillips
Jake Wolf
Chico Thuon
Jennie Fancher
Scott Prince
Tamra Underwood
M E M O R A N D U M
TO: Board of Directors
FROM: Catherine Hayes, Board Secretary
DATE: Feb. 28, 2020
RE: Summary of Authority’s Feb. 27, 2020, Board Meeting
The following is a summary of items discussed at the Feb. 27, 2020, Authority Board Meeting:
Board members present and acting included: Chair George Gregory, Secretary Kim Bell Williams, Treasurer
Geoff Dreyer, Sarah Smith Hymes, Mick Woodworth, and Bill Simmons (alternate).
Board Member Input Director Smith Hymes reported that the Avon Town Council did not support her
request that increments less than 1 SFE (3000 square feet) be used as the basis for
calculating Avon’s tap fees. The council approved the District’s 1041 permit
Tuesday night with conditions. She also reported interested parties can now give
remote testimony on any state bills from Colorado Mountain College. She updated
on Avon’s sytrofoam ban. Secretary Williams reported the sale of 6 West to a non -
local owner.
Sustainability Update Kira Koppel reported on local efforts to engage stakeholders in climate change
action through behavior change campaigns. The most impactful initiatives identified
locally were offsetting electric use through purchase of renewable energy credits
through Holy Cross Energy’s PuRE program; carpooling; and rooftop solar
installations. She also gave an overview of composting and reminded directors that
they are welcome and encouraged to compost at home and drop off their compost
at any District facilities.
Quarterly Finance
Report
James Wilkins discussed the quarterly finance report, which included year-end
information for 2019. Water sales were below projections and below the five-year
average, likely due to wet, cold spring conditions. Tap fees were well above
projections, as developments moved more quickly than anticipated in Authority
modeling. Water service revenues were closely aligned with projections, and
expenditures were below projections. James also discussed anticipated bond
refunding for the Authority in Aug. 2020. James also noted he and Linn continued to
present to local entities regarding rate increases projected in the next five years.
Wastewater Updates Siri Roman discussed various wastewater updates. Staff responded to a recent
sanitary sewer overflow at Beaver Creek Landing. The spill was small, contained,
and did not require reporting to the state. By comparison, a June overflow at the
Dowd Junction lift station did require reporting to the state, based on size and that it
reached the river. This overflow and many other items were discussed during the
District’s recent compliance evaluation inspection. State inspectors toured the
District’s wastewater facilities and heard from various staff members regarding
operations. The inspectors were complimentary of District operations and facilities.
Capital Improvement
Projects
Siri Roman and Jeff Schneider discussed upcoming capital improvements. An open
house was recently held for Liftview residents to discuss the nutrient upgrade
project that will begin soon at the Avon Wastewater Treatment Facility. The event
was well-attended and went smoothly. Jeff Schneider discussed the Fenno
Summary of Authority’s Feb. 27, 2020, Board Meeting Page 2 of 2
Wellhouse replacement, for which needed approvals are expected soon from the
county.
Engineering Report Jason Cowles reminded directors of a developer’s application to build 12 homes at
the Cordillera Valley Club. Staff previously alerted the board of CVC’s overuse of
water. Jason noted the county does not believe the developer has the correct
entitlements to proceed with the development; until this is determined, the Authority
does not need to commit to an ability to serve.
Traer Creek Tank
Update
Jason Cowles discussed Traer Creek Tank planning. Geotechnical site analysis
confirmed the old tank site was the best place for the new tank. Staff is proceeding
with 30% tank design, with construction anticipated from 2021 – 2022. Jason said
design and bidding requirements will not allow for 2020 construction.
Communications
Update
Diane Johnson discussed the upcoming presentations to local entities regarding the
projected rate increases in the coming years. She also noted various bills that staff
and consultants are monitoring, including funding for Colorado’s Water Plan, a bill
that would have required the District to index all its real property; and a housing
authority bill to exempt developers of workforce housing from paying tap fees. Staff
continues to monitor a bill regarding augmentation of instream flows.
PFAS Monitoring Brad Zachman discussed monitoring for per- and polyfluoroalkyl substances
(PFAS), which have gained media coverage in recent years as they were found in
municipal water supplies. PFAS are commonly found in everyday items, but have
been linked most strongly to groundwater contamination near military bases where
firefighting training occurs. Brad noted staff received a grant to do additional PFAS
sampling for Authority and District supplies, even though they are not high-risk. He
will update the board when sampling has occurred.
Eagle Park Reservoir
Agreement with Eagle
County
The Board unanimously approved an agreement with Eagle County to purchase its
87+ acre feet of Eagle Park Reservoir water. The agreement specifies the water
must be used within the Authority’s service area for affordable employee or
workforce housing developments that conserve water, or projects that promote
healthy streams and rivers in the Eagle River Basin.
Pando Feeder Canal
Protest
Glenn Porzak discussed the protest letter he filed on behalf of the Authority and
District regarding the recent diligence application for the Pando Feeder Canal water
right. The referee agreed with a finding of diligence; however, Glenn is protesting an
inclusion in the diligence finding that would unduly restrict the ability to obtain an
absolute decree for a future enlargement of Eagle Park Reservoir.
AVON PLANNING AND ZONING COMMISSION
MEETING ABSTRACT
TUESDAY MARCH 3, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
1. CALL TO ORDER AND ROLL CALL
Chairperson Lindsay Hardy called the regular meeting to order at 5:01 p.m. A roll call was taken, and
Planning Commission members present were Rebecca Smith, Jared Barnes, Steve Nusbaum, and Alex
Dammeyer. Also present were Town Planner David McWilliams and Planning Director Matt Pielsticker.
2. CONFLICTS OF INTEREST
No conflicts of interest were disclosed.
3. APPROVAL OF AGENDA
The agenda was unanimously approved.
4. BUSINESS ITEMS
4.1. MAJOR DEVELOPMENT PLAN & ALTERNATIVE EQUIVALENT COMPLIANCE - 5085 WILDRIDGE ROAD EAST –
PUBLIC HEARING
File: MJR20001 &AEC20001
Applicant: Jeff Manley
Location: Lot 3 Wildridge Point Subdivision
Summary: The applicant presented a new single-family house proposal.
Public Comment: David Strandjord commented on the project.
Action: Commissioner Barnes motioned to approve the AEC with the following findings:
1. The proposed application was reviewed pursuant to §7.16.120, Alternative Equivalent
Compliance;
2. The proposed alternatives achieve the intent of §7.28.050(e) Landscaping Units, and
§7.28.090(d)(4), Roofs, to the same or better degree than the subject standard;
3. The proposed alternative achieves the goals and policies of the Avon Comprehensive Plan
to the same or better degree than the subject standard;
4. The proposed alternative results in benefits to the community that are equivalent to or
better than compliance with the subject standard; and
5. The proposed alternative imposes no greater impacts on adjacent properties than would
occur through compliance with the specific requirements of the Code.
6. The proposed alternative landscape design responds to the native hillside design better
than the landscaping standard;
7. The proposal alternative for roof height and pitch minimizes site disturbance better than
meeting the standard; and
8. The continuous grade in excess of 45% makes meeting the roof height and pitch
requirements difficult.
Commissioner Nusbaum seconded the motion and it carried unanimously 5-0.
Action: Commissioner Barnes motioned to approve the MJR application with the following
findings and conditions:
Findings:
1. The proposed application was reviewed pursuant to §7.16.080(f), Development Plan,
AVON PLANNING AND ZONING COMMISSION
MEETING ABSTRACT
TUESDAY MARCH 3, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
§7.16.090(f), Design Review. The design meets the development and design standards
established in the Avon Development Code;
2. The application is complete;
3. The application provides sufficient information to allow the PZC to determine that the
application complies with the relevant review criteria;
4. The application complies with the goals and policies of the Avon Comprehensive Plan;
5. The demand for public services or infrastructure exceeding current capacity is mitigated by
the application; and
6. The design relates the development to the character of the surrounding community.
Condition:
1. ILCs are required to confirm building height, location and footprint.
Commissioner Nusbaum seconded the motion and it carried unanimously 5-0.
4.1 SIGN PLAN – AVON ROAD RAILROAD BRIDGE – PUBLIC HEARING
File: SGN20002
Applicant: Town of Avon
Summary: Proposed LED sign on the railroad bridge.
Public Comment: None
Action: Commissioner Dammeyer motioned to approve the item with the following findings and
conditions:
Findings:
1. The application is complete;
2. The application provides sufficient information to allow the PZC to determine that the
application complies with the relevant review criteria;
3. The application was reviewed pursuant to §7.16.160(f), Sign Plan. The application meets the
sign standards established in the Avon Development Code;
4. The application complies with the goals and policies of the Avon Comprehensive Plan;
5. No extra demand for public services is made by the application;
6. The design relates the development to the character of the surrounding community;
7. The application allows individuality and promotes the expectation of attractive sign
appearance;
8. Compliance with the policies and application criteria ensure sensitive use of the signs; and
9. Current code language for digital displays does not prohibit the proliferation of digital
displays for non-governmental use.
Conditions:
1. Any sign use that is less strict than the policies and application criteria defined in
Attachment 2 requires review by PZC; and
2. Town Council should consider a code text amendment limiting the use of digital signs.
Commissioner Barnes seconded the motion and it carried 3-2 with Commissioners Smith and
AVON PLANNING AND ZONING COMMISSION
MEETING ABSTRACT
TUESDAY MARCH 3, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
Hardy voting in opposition.
4.2 APPROVAL OF CONSENT AGENDA
Commissioner Barnes motioned to approve the consent agenda. Commissioner Nusbaum seconded the
motion and it passed unanimously 5-0.
5. OTHER BUSINESS
Staff discussed updates with various planning applications.
6. ADJOURN
There being no further business before the Commission, Commissioner Barnes moved to adjourn
the meeting. The time was 7:00 p.m.
These meeting notes are only a summary of the proceedings of the meeting. They are not intended to
be comprehensive or to include each statement, person speaking or to portray with complete accuracy.
The most accurate records of the meeting are the audio of the meeting, which is housed in the Town
Clerk' s office.
RESPECTFULLY SUBMITTED:
David McWilliams, Town Planner
This item will be provided separately
(970) 748-4045 JHildreth@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer
RE: 2020 Whitewater Park Repairs
DATE: March 5, 2020
SUMMARY: In spring 2019, the Town completed repairs to the whitewater park originally constructed in 2006. The
2019 spring runoff was above average and the largest feature, Bob Sr., developed a large wave that formed an eddy
and made it difficult for some rafters to float out of. Staff subsequently engaged River Restoration, Inc. to design and
model modifications to moderate the feature during these very high flows.
PUBLIC OUTREACH: At the February 11th meeting, Council directed Staff to solicit comments from the river recreation
community regarding the proposed improvements. Staff contacted three local rafting companies: Lakota Guides, Nova
Guides and Sage Outdoor Adventures along with Alpine Quest Sports and only heard back from Sage Outdoor
Adventures. Cole Bangert, the owner of Sage Outdoor Adventures, expressed concerns regarding the repairs and the
depth of the water below the feature. Dan Woolley of River Restoration, the designer of the feature, responded stating
that he feels the feature will perform as designed and the 3D flow modeling verifies this, the email chain is included in
Attachment A.
BACKGROUND: In 2006, the Town spent $720,000 to build the Avon whitewater park and $432,000 to obtain the
appropriate water rights, for a total of $1,152,000. The whitewater park experienced changes as a result of spring runoff
events after completion. The features were updated in 2019 to make them more effective and enjoyable for kayakers
and other boaters. The 2019 Whitewater Park Repair Project consisted of maintenance activities of the three whitewater
features and included relocating and resetting approximately 550 tons of boulders within the channel.
ANALYSIS: Upon completion of the 2019 project, the Eagle River had exceptionally high flows as a result of the above
average snowpack. During the high flows, Bob Sr., the feature downstream of the Avon Road bridge, developed a
large wave and eddy that was difficult for some rafters to navigate. In response to complaints from the rafting and
kayaking community, staff requested Rivers Restoration, Inc, who designed the 2019 repairs, to design modifications
to lower the wave and remove the eddy during very high flows. The recommended improvements include removing 3
boulders from Bob Sr., lowering the height of the wave and provide for a bypass of the feature.
FINANCIAL CONSIDERATIONS: The costs to design, evaluate and construct the 2020 whitewater park
improvements are summarized below:
River Restoration, Inc. Design $15,000
S2O Design and Engineering Pier review $6,085
Diggin it’, Inc. Construction $16,650
TOTAL $37,735
These improvements will be paid for out of the whitewater park capital project fund budget and will be included in the
next budget amendment.
REQUESTED ACTION: Staff is recommending moving forward with the repairs recommended by River Restoration,
Inc.
RECOMMENDATION: I recommend that Staff move forward with the modifications recommended by River
Restoration, Inc.
Thank you, Justin Hildreth
ATTACHMENTS:
Attachment A – Email chain from Chad Bangert, Sage Outdoor Adventures, and Dan Woolley, River Restoration, Inc.
From:Dan Woolley
To:Justin Hildreth
Subject:RE: Bob"s Wave conversation follow up - Sage Outdoor Adventures
Date:Tuesday, February 25, 2020 2:51:21 PM
Justin,
Per our conversation:
We agree with Mr. Bangert that this stretch of the Eagle River is top notch and should be open to
private/commercial use throughout the entirety of the whitewater season. However, Mr. Bangert’s
opinions oversimplify the hydrodynamic processes resulting in the formation of the hydraulic jump
at the Bob Sr. wave feature and are inconsistent with the results of the numerical simulations (3D
CFD modeling), developed by RiverRestoration using the best hydraulic modeling software available
(Flow 3D). Moreover, this analysis was independently reviewed by Mr. Scott Shipley and was found
to be consistent with industry standards and if anything he expressed concern that the waves could
become too weak following the proposed alterations not that they would remain “sticky” as Mr.
Bangert suggested.
The large boulder on both side of the concrete wave block have always been part of the design since
it was first constructed in 2006. Following flooding in 2008 the river left boulder washed into the
scour hole downstream and in 2010 the river right boulder washed downstream, rendering the wave
unusable. The objective of the 2019 maintenance activities was to repair the features, by resetting
the large boulder that had washed out, to create a desirable recreational experience, similar to what
was seen in 2009 and early 2010, in order to substantiate the claimed RICD water right at the Bob
Sr. wave feature. It is our opinion that the approach proposed for 2020 presents the best “fix” for
the wave by balancing the needs of all recreational users in the reach. Our analysis shows that the
removal of the large boulder on river left of the wave block and four smaller boulders on the river
right side of the feature will result in a desirable wave for kayakers/SUP/surfers at flows above 1,400
cfs while simultaneously creating downstream navigation for commercial and recreational rafters.
Please let me know if you have any other questions or concerns.
Sincerely,
Dan Woolley
RiverRestoration
From: Dan Woolley
Sent: Tuesday, February 25, 2020 10:37 AM
To: Justin Hildreth <jhildreth@avon.org>
Subject: RE: Bob's Wave conversation follow up - Sage Outdoor Adventures
Justin,
We agree with Mr. Bangert that this stretch of the Eagle River is top notch and should be open to
private/commercial use throughout the entirety of the whitewater season. However, Mr. Bangert is
not an expert in the fields of hydraulics and river mechanics and has no credentials to support his
assertions. Mr. Bangert’s opinions oversimplify the hydrodynamic processes resulting in the
formation of the hydraulic jump at the Bob Sr. wave feature are inconsistent with published
hydraulics theory or the results of the numerical simulations (3D CFD modeling). RiverRestoration’s
hydraulic analysis was performed by Dr. Michael Scurlock using the best available hydraulic modeling
software (Flow 3D). Moreover, the approach was collaboratively developed within our office based
on the successful completion of hundreds of river projects and wave enhancements as well as our
extensive personal kayaking and rafting backgrounds. This analysis was independently reviewed by
Mr. Scott Shipley and was found to be consistent with industry standards. Moreover it was Mr.
Shipley’s concern that the waves could become too weak following the proposed alterations not that
they would remain “sticky” as Mr. Bangert’s asserts.
The Large boulder on both side of the concrete wave block have always been part of the design since
it was first constructed in 2006. Following flooding in 2010 and 2011, the boulders washed into the
scour hole downstream rendering the wave unusable. The objective of the 2019 maintenance
activities was to repair the features, by resetting the large boulder that had washed out, to create a
desirable recreational experience, similar to what was seen in 2009 and 2010, in order to
substantiate the claimed RICD water right at the Bob Sr. wave feature. It is our assertion that the
approach proposed for 2020 presents the best “fix” for the wave by balancing the needs of all
recreational users in the reach. Our analysis shows that the removal of the large boulder on river left
of the wave block and four smaller boulders on the river right side of the feature will result in a
desirable wave for kayakers/SUP/surfers at flows above 1,400 cfs while simultaneously creating
downstream navigation for commercial and recreational rafters.
Please let me know if you have any other questions or concerns.
Sincerely,
Dan Woolley
RiverRestoration
From: Justin Hildreth <jhildreth@avon.org>
Sent: Tuesday, February 25, 2020 8:51 AM
To: Dan Woolley <dan.woolley@riverrestoration.org>
Subject: FW: Bob's Wave conversation follow up - Sage Outdoor Adventures
Dan,
This is a response from a looking rafting company about the Bob Sr. feature and the proposed
changes. Can you respond to his concerns?
Thanks, Justin
From: Cole Bangert <cole@sageoutdooradventures.com>
Sent: Saturday, February 22, 2020 3:29 PM
To: Justin Hildreth <jhildreth@avon.org>
Subject: Bob's Wave conversation follow up - Sage Outdoor Adventures
Hi Justin,
Here is a summary of what we spoke about on the phone regarding Bobs Wave in Avon.
The 2 large obstructions (rock and concrete block) that are slated to be left in the middle of the
channel will continue to make a very large, sticky, intimidating feature in my opinion.
Removing some of the boulders on either side of the main obstruction will certainly help with lanes
to avoid the feature, but the feature itself will remain large and "scary" to many boaters at many
flows. When Bob's wave was just the one concrete block obstruction, the wave was already quite
large and the river left eddy was very strong upstream current. The proposal to leave the second big
rock next to the concrete block will make the hole very large still.
The shape of the rock/concrete, being very uniform, and at right angles to the current, also enhance
the retentiveness of the hydraulic feature.
The reason for much of the "stickiness" and size of the two block feature is due to the depth of the
pool immediately below the obstruction. There is a lot of flow going downstream, over the
obstruction, and into slower deeper water. There is no way to lessen the upstream pressure in that
deep water behind those two large rocks except to shallow up the riverbed.
The increase flow from the proposed removal of the side rocks will help push some water
downstream certainly, however the depth of hole and the pattern of recirculation is driven by the
depth of the river bed behind the boulders. The side flows being stronger will actually enhance
the power of the back pressure in the deep water.. The faster the current goes by the obstruction
the more energy it has to fill in behind the boulders. The speed will shrink the lateral dimension of
the "hole" feature but not the power of the recirculation.
My guess is the riverbed is over 6 feet deep below the obstruction currently. That could be
shallowed up substantially. By shallowing the river bed, the feature will turn into more of a wave
rather than a sticky hole. Shallowing the riverbed for many yards downstream would create way less
backpressure at the hydraulic. This will then produce a nice hole/wave that will not be so retentive.
That will allow for many more skill levels of boaters to utilize the feature at more varied river flows.
Lateral waves will form nicely that will converge on the area behind the rocks. This will cause a very
nice breaking wave feature verse a sticky "hole".
It will also lessen the impact to inflatable rafts. The large hydraulic that is certainly going to form
behind those boulders that are being proposed to be left in place will be very difficult for rafts to
punch through. Missing the feature will be easier than it was last year with the removal of the
boulders near the sides of the river, however, if a raft were to be unable to miss it for any number of
reasons, that feature, as proposed, will be large for inflatables still.
Also, in all reality, the "boating season" in most users minds, on the Eagle River from Kayak Crossing
to Edwards, is in flows from 800 CFS to 5000+ CFS at the Avon gauge. The only limiting factor in the
past has been the height of the Eagle Vail golf course bridge well upstream of Avon. No rapid in that
stretch limits commercial or recreational use due to its difficulty. Last year that changed with the
introduction of the new Bob's Wave. Many commercial companies and private boaters chose to cut
the run in half, and put in just below the Bob's feature. That was unfortunate as the whole "Upper
Eagle" run is one of, if not the best whitewater run in the State when its running. We would like to
see something happen at Bob's that enhances and retains the essence of the "whole stretch" and
does not create a stand alone feature that scares people away.
Our perspective comes largely from my business partner Darryl and his 44 years of commercially
running rafts on the Eagle River through Avon, and more years of competitive and recreational
kayaking around the world. His inherent ability to see river obstacles and features and predict
hydraulics is fairly impressive, I'll admit.
Let me know if you have any questions, and thanks for reaching out.
--
Cole Bangert | Owner | Director of Operations
Sage Outdoor Adventures | PO Box 460 | Wolcott, CO | 81655
Office 970.476.3700 | Mobile 719.466.7258 | Fax 970.949.1205 | Email
cole@sageoutdooradventures.com
Come share an adventure with us at SageOutdoorAdventures.com.