TC Packet 03-26-2020_______________________________________________________________________________
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
THURSDAY, MARCH 26, 2020
MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE)
!! SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AND TOWN HALL CLOSURE
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. RESOLUTION 20-08 ADOPTING AN ELECTRONIC PARTICIPATION POLICY FOR TOWN MEETINGS DURING A
LOCAL DISASTER EMERGENCY (TOWN ATTORNEY PAUL WISOR) (5 MINUTES) 5:10
5.2. UPDATE AND DISCUSSION ON COVID-19 (TOWN MANAGER ERIC HEIL) (30 MINUTES) 5:15
5.3. RESOLUTION 20-06 EXTENDING THE TOWN OF AVON EMERGENCY DECLARATION OF MARCH 19, 2020
(TOWN ATTORNEY PAUL WISOR) (10 MINUTES) 5:45
5.4. PRESENTATION: PROPERTY TAX INCREASE IN MAY FOR FIRE DISTRICT (KARL BAUER, FIRE CHIEF) (20
MINUTES) 5:55
5.5. PUBLIC HEARING SECOND READING OF ORDINANCE 20-04 REFINANCING THE TOWN’S SERIES 2010
CERTIFICATES OF PARTICIPATION (COPS) (FINANCE DIRECTOR SCOTT WRIGHT) (10 MINUTES) 6:15
5.6. RESOLUTION NO. 20-07 CONCERNING THE AVON URBAN RENEWAL AUTHORITY AND ITS TAX INCREMENT
REVENUE REFUNDING LOAN (FINANCE DIRECTOR SCOTT WRIGHT) (10 MINUTES) 6:25
5.7. RESOLUTION 20-09 DEFERRAL OF SALES TAX PAYMENTS AND RETURNS (TOWN ATTORNEY PAUL
WISOR) (20 MINUTES) 6:35
5.8. 2020 COUNCIL MEETING SCHEDULE: DISCUSSION OF ADDITIONAL COUNCIL MEETINGS (TOWN MANAGER
ERIC HEIL) (10 MINUTES) 6:5 5
5.9. APPROVAL OF MINUTES FROM MARCH 10, 2020 REGULAR COUNCIL MEETING (INTERN CHARISE BISHOP)
(5 MINUTES) 7:05
RECESS TO ALLOW AVON TOWN COUNCIL TO CONVENE AS THE AVON URBAN RENEWAL AUTHORITY BOARD 7:10
RECONVENE AVON TOWN COUNCIL MEETING 7:30
6. WRITTEN REPORTS
6.1. MONTHLY FINANCIALS REPORT (SENIOR ACCOUNTANT NELLY BURNS)
_______________________________________________________________________________
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
6.2. PHOTO MONUMENTS FOR AVON’S HISTORY (PLANNING DIRECTOR MATT PIELSTICKER)
7. MAYOR & COUNCIL COMMENTS & MEETING UPDATES (10 MINUTES) 7:30
8. EXECUTIVE S ESSION (30 MINUTES) 7:40
8.1. EXECUTIVE SESSION PURSUANT TO C.R.S. §24-6-402(4)(B) AND (E) FOR PURPOSES OF SEEKING
L EGAL A DVICE FROM THE T OWN ATTORNEY AND DETERMINING POSITIONS RELATIVE TO MATTERS
THAT M AY BE SUBJECT TO N EGOTIATIONS C ONCERNING THE OLD FIREHOUSE.
9. ADJOURN 8:1 0
___________________________________________________________________________________________________________________________________________________________________________________________
*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:
(NOTE: Future Meeting Agendas will adjust based on COVID-19 impacts to schedules and priorities)
April 28, 2020
- PUBLIC HEARING: 1ST AMENDMENT TO 2020 BUDGET
- STRATEGIC PLAN QUARTERLY UPDATE
- STAFF UPDATE ON OLD TOWN HALL DEMOLITION
- NOTICE OF AWARD FOR NOTTINGHAM PARK UTILITY
- PRESENTATION: ICE SKATING ON NOTTINGHAM LAKE
- WORK SESSION: PEDESTRIAN CROSSINGS & INTERSECTIONS
- WORK SESSION: DEED RESTRICTED HOUSING PROGRAM
- WORK SESSION: POTENTIAL FUNDING SOURCES FOR COMMUNITY HOUSING
- INTERVIEW OF PLANNING AND ZONING COMMISSION CANDIDATES
May 12, 2020
- INTERVIEWS OF CULTURAL, ARTS, AND SPECIAL EVENTS COMMITTEE CANDIDATES AND APPOINTMENT OF 3
MEMBERS
- AVON PD SWEARING IN AND BADGE PINNING OF OFFICER ANDRES “ANDY” SANDOVAL
- AVON PD ANNUAL PRESENTATION
- AVON PD AWARDS PRESENTATION
- AVON PD FLEET REPORT FOR DISCUSSION
- WILDRIDGE SUBDIVISION WILDLAND FIRE MITIGATION AND EMERGENCY PREPAREDNESS WORK SESSION
_______________________________________________________________________________
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 URBAN RENEWAL AUTHORITY MEETING AGENDA
THURSDAY, MARCH 26, 2020
!! SETUP AS A VIRTUAL MEETING VIA ZOOM DUE TO COVID-19 AND TOWN HALL CLOSURE
AVON URBAN RENEWAL AUTHORITY MEETING BEGINS AT APPX 7:10 PM OR AS SOON THEREAFTER AS POSSIBLE
1. CALL TO ORDER AND ROLL CALL
2. APPROVAL OF AGENDA
3. PUBLIC COMMENT
4. BUSINESS ITEMS
4.1. RESOLUTION 20-03 ADOPTING AN ELECTRONIC PARTICIPATION POLICY FOR TOWN MEETINGS DURING A
LOCAL DISASTER EMERGENCY (TOWN ATTORNEY PAUL WISOR)
4.2. RESOLUTION 20-01 DESIGNATING LOCATIONS FOR POSTING THE NOTICES OF PUBLIC MEETINGS
4.3. ENGAGEMENT LETTER WITH BUTLER SNOW AS BOND COUNSEL FOR THE PURPOSE OF REFINANCING THE
AUTHORITY’S OUTSTANDING 2013 BONDS (TREASURER SCOTT WRIGHT)
4.4. ENGAGEMENT LETTER WITH PIPER SANDLER AS PRIVATE PLACEMENT AGENT FOR THE PURPOSE OF
REFINANCING THE AUTHORITY’S OUTSTANDING 2013 BONDS (TREASURER SCOTT WRIGHT)
4.5. PUBLIC HEARING: RESOLUTION 20-02 APPROVING AND DIRECTING THE EXECUTION OF A LOAN AGREEMENT
FOR THE PURPOSE OF REFINANCING THE AUTHORITY’S TAX INCREMENT REVENUE BONDS, SERIES 2013
(TREASURER SCOTT WRIGHT)
4.6. APPROVAL OF DECEMBER 10, 2019 URA MEETING MINUTES (AUTHORITY CLERK BRENDA TORRES)
5. ADJOURN
*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 prese nt. Article VI.
Public Comments, Avon Town Council Simplified Rules of Order, Adopted by Resolution No. 17-05.
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Councilmembers FROM: Paul Wisor, Town Attorney
RE: Resolution 20-08 – Electronic Participation Policy During
Local Emergency Disaster
DATE: March 20, 2020
SUMMARY: In response to the spread of the COVID-19 virus throughout the community, the Town Manager
issued a Declaration of Local Disaster Emergency on March 19, 2020. Given this local emergency disaster
in particular prevents in-person meetings, it is necessary to adopt procedures by which Town Council and
other commissions and committees may meet electronically in order to assure Avon government continues
to function.
BACKGROUND In 2015, the Town adopted a remote attendance policy, which enables Councilmembers to
attend meetings remotely and vote on resolution and ordinance. It is under this policy Council is attending
Council meetings remotely. However, the policy adopted in 2015 does not allow remote participation with
respect to quasi-judicial hearings or executive sessions.
The purpose of this Electronic Participation Policy (“Policy”) is to specify the circumstances and means under
which the Avon Town Council and other commissions and committees shall conduct regular and special
meetings by telephone or other electronic means of participation, such as video-conferencing that is clear,
uninterrupted and allows two way communication for the participating members. The Policy applies when a
Declaration of Local Disaster Emergency.
Electronic participation is permitted where 1) a local disaster emergency has been declared; 2) a meeting in-
person is not prudent; 3) all members of the governing body and one staff member can communicate; 4)
members of the public can hear the proceedings; 5) votes are conducted by roll call; 6) minutes are taken
and recorded; notice of the fact the meeting is being conducted electronically is provided to the public.
The Policy also permits a Council to enter into executive session, provided the session is recorded
electronically in accordance with state statutes. The policy also applies to quasi-judicial hearings, but only if
the applicant agrees in writing to proceed under the electronic meeting format.
PROPOSED RESOLUTION: Resolution 20-08 adopts the Electronic Participation Policy.
FINANCIAL CONSIDERATIONS: The cost to the Town is a minimal subscription to an online video
conferencing service.
RECOMMENDATION: Staff recommends approval of Resolution 20-08.
PROPOSED MOTION: “I move to approve Resolution 20-08, thereby extending thereby adopting an
Electronic Participation Policy During Local Emergency Disaster.”
Thank you, Paul
ATTACHMENTS:
Exhibit A – Resolution 20-08
Resolution 20-08 Electronic Participation Policy During a Local Disaster Emergency
March 24, 2020
Page 1 of 1
RESOLUTION NO. 20-08
ADOPTING AN ELECTRONIC PARTICIPATION POLICY FOR TOWN
MEETINGS DURING A LOCAL DISASTER EMERGENCY
WHEREAS, Section 5.1 of the Avon Charter states, “The Council shall determine the rules
of procedure governing meetings.” and
WHEREAS, the Avon Town Council adopted Avon Town Council Policy Regarding Remote
Telephone/Video Meeting Attendance on February 24, 2015; and
WHEREAS, the Town of Avon issued and Declaration of Local Disaster Emergency on
March 19, 2020 in response to the spread of the COVID-19 virus; and
WHEREAS, the spread of the COVID-19 virus requires individuals to practice self-distancing
and otherwise limiting social interaction such that in-person attendance at Town Council meetings
by Councilmembers, commission and committee members, staff and members of the public is
rendered impracticable; and
WHEREAS, conducting Town business during the current local disaster emergency requires
attendance be accomplished through electronic participation; and
WHEREAS, the Avon Town Council desires to adopt and Electronic Participation Policy for
Town Meetings During a Local Disaster Emergency (the “Policy”); and
WHEREAS, the Avon Town Council finds that adoption of the policy will promote meeting
efficiency as well as promote the understanding and transparency of Council meeting procedures
for the general public and protect the health, safety and wellness of the Avon community.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Electronic Participation Policy for Town Meetings During a Local Disaster
Emergency attached hereto as Exhibit A are hereby adopted.
ADOPTED MARCH 24, 2020 by the AVON TOWN COUNCIL
By:_______________________________ Attest:___________________________
Sarah Smith-Hymes, Mayor Brenda Torress, Town Clerk
EXHIBIT A
ELECTRONIC PARTICIPATION POLICY
AT TOWN OF AVON MEETINGS DURING A LOCAL DISASTER EMERGENCY
I. Purpose.
The purpose of this Electronic Participation Policy (“Policy”) is to specify the
circumstances and means under which the Avon Town Council (“Town Council”) shall conduct
regular and special meetings by telephone or other electronic means of participation, such as video-
conferencing that is clear, uninterrupted and allows two way communication for the participating
members ("Electronic Participation"). Electronic Participation has inherent limitations because
Electronic Participation effectively precludes a member of the Town Council from
contemporaneously observing documentary information presented during meetings; from fully
evaluating a speaker's non-verbal language in assessing veracity or credibility; and from observing
non-verbal explanations during a speaker's presentation or testimony. The Town Council finds that
these limitations, inherent in Electronic Participation, may produce inefficiencies in meetings,
increase the expense of meetings, and alter the decision-making process. As such, the Town
Council shall only utilize the policies contained herein upon the adoption by the Town Council of
a resolution declaring, or the Town Manager declaring, a local disaster emergency pursuant to §24-
33.5-709, C.R.S.
II. Statement of General Policy.
The Town Council may conduct a regular or special meeting of the Town Council by
electronic means only in accordance with this Policy.
A. Emergency Situations.
In the event a quorum is unable to meet at the day, hour, and place fixed by the
rules and procedures of the Town Council because meeting in-person is not practical or
prudent due to an local disaster emergency affecting the Town, meetings may be conducted
by telephone, electronically, or by other means of communication so as to provide
maximum practical notice. Meetings may be held by telephone, electronically, or by other
means of communication if all of the following conditions are met:
1. A local disaster emergency has been declared pursuant to §24-33.5-
709, C.R.S.; and
2. The Town Manager or the Town Council determines that meeting
in person is not practical or prudent, because of matters related to the declaration
of local disaster emergency affecting the Town; and
3. All members of the Town Council, and at least one Town staff
member can hear one another or otherwise communicate with one another and can
hear or read all discussion and testimony in a manner designed to provide maximum
notice and participation; and
4. Members of the public can hear the Town Council’s proceedings
and are afforded opportunities to participate in public comment; and
5. All votes are conducted by roll call; and
6. Minutes of the meeting are taken and promptly recorded, and such
records are open to public inspection; and
7. To the extent possible, full and timely notice is given to the public
setting forth the time of the meeting, the fact that some members of the Town
Council may participate by telephone, and the right of the public to monitor the
meeting from another location.
III. Arranging for Electronic Participation.
A. The Town Manager shall contact Council members at least twenty-four hours in
advance of a regular or schedule meeting to provide notice of a meeting conducted under this
policy.
B. The Town shall initiate the Electronic Participation not more than ten (10) minutes
prior to the scheduled time of the meeting. Upon disconnection during a meeting, the Town Clerk
shall make at least three attempts to re-initiate the connection.
IV. Effect of Electronic Participation.
A. Quasi-Judicial Matters.
In the event that a pending application is scheduled for a public hearing that is
quasi-judicial in nature at a meeting at which this policy is in effect, the Town shall advise
the applicant of such circumstances and present the applicant with options for proceeding
with the application. The applicant shall authorize the Town, in writing, to proceed with
one of the following options.
1. Conduct the public hearing under this policy with accommodations
made for electronic public participation; or
2. Suspend any and all review and decisions deadlines until such time
that the local disaster emergency is lifted and the Town Council schedules a regular
meeting at which a quorum will be physically present.
B. Executive Sessions.
In the event that the Town Council holds an executive session pursuant to §24-6-
402, C.R.S., participants shall be authorized to attend via Electronic Participation. Any
executive session conducted under this policy shall be recorded electronically as provided
for by statute.
V. Applicability of Policy.
This Policy shall apply to all regular and special meetings (including work sessions) of the
Town Council, Planning Commission, and all other Town of Avon boards or committees
established by the Avon Town Council.
VI. Reasonable Accommodations.
The Town shall provide reasonable accommodation and shall waive or modify provisions
of this Policy to provide handicapped members of the Town Council or any other Board or
Commission full and equal access to applicable meetings.
970-748-4004 eric@avon.org
TO: Honorable Mayor Smith Hymes and Council
FROM: Eric Heil, Town Manager
RE: Update and Discussion on COVID-19
DATE: March 25, 2020
MATERIALS WILL BE PRESENTED AT THE MEETING
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Councilmembers
FROM: Paul Wisor, Town Attorney
RE: Resolution 20-06 Declaration of Local Disaster Emergency
DATE: March 19, 2020
SUMMARY: In response to the spread of the COVID-19 virus throughout the community, the Town Manager
issued a Declaration of Local Disaster Emergency on March 19, 2020. Resolution 20 -06 extends the
declaration until such time Town Council determines COVID-19 no longer poses an imminent threat to the
community.
BACKGROUND: Section 8.1 of the Town of Avon Home Rule Charter designates the Town Manager as the
chief executive officer of the Town. Section 24-33.5-709(1), C.R.S., authorizes the chief executive officer of
the Town to declare a local disaster emergency. The rapid s pread of COVID-19 throughout our community
has already had devastating effects, including a reduction in certain Town operations, the closure of
businesses, and a limitation on the gathering of people. As such, the Town Manager issued a Declaration of
Local Disaster Emergency on March 19, 2020. Pursuant to state law, the Town Manager’s declaration is
only effective for seven days unless extended by Town Council. Resolution 20 -06 extends the declaration
until such time as Town Council determines COVID-19 no longer poses an imminent threat to our community.
The State of Colorado has already declared a state of emergency, and Eagle County has issued its own
Declaration of Local Disaster Emergency. These two actions provide the State and Eagle County with ce rtain
powers with respect to law enforcement and other regulatory matters. The primary purpose of the Town’s
declaration is to avail itself to emergency funds available through Eagle County, the State of Colorado and
the United States federal government.
Financial assistance packages are still being developed by the State of Colorado and federal government,
so it is unclear if a declaration of emergency will be required to access funding. However, such a declarations
has been required in the past. For example, FEMA has typically required such a declaration before FEMA
dollars can be accessed by local governments. Upon issuance of the Town Manager’s declaration, the Town
began tracking all COVID-19 related expenditures for purposes of potential reimbursement.
PROPOSED RESOLUTION: Resolution 20-06 extends the Town Manager’s Declaration of Local Disaster
Emergency dated March 19, 2020.
FINANCIAL CONSIDERATIONS: As noted previously, adopting Resolution 20 -06 may provide the Town
access to certain funding sources. Adopting of Resolution 20-06, however, does not obligate the Town to
expend any funds.
RECOMMENDATION: Staff recommends approval of Resolution 20-06.
PROPOSED MOTION: “I move to approve Resolution 20-06, thereby extending thereby extending the
Declaration of Local Disaster Emergency.”
Thank you, Paul
ATTACHMENTS:
Exhibit A – Resolution 20-06
Res 20-06 Declaration of Local Emergency
Page 1 of 4
TOWN OF AVON
RESOLUTION 20-06
EXTENDING THE TOWN OF AVON EMERGENCY DECLARATION OF
MARCH 19, 2020
WHEREAS, COVID-19 is a highly contagious virus that has spread throughout the United
States, including the Town of Avon, Colorado (the “Town”); and
WHEREAS, COVID-19 may cause serious illness and death, especially with respect to
elderly persons or those with underlying health conditions; and
WHEREAS, on January 30, 2020, the World Health Organization declared the worldwide
outbreak of COVID-19 a “public health emergency of international concern”; and
WHEREAS, on January 31, 2020, the United States Department of Health and Human
Services declared COVID-19 a public health emergency; and
WHEREAS, on March 6, 2020, Eagle County declared a local disaster; and
WHEREAS, on March 10, 2020, in response to the spread of COVID-19, Governor Polis
declared a state of emergency; and
WHEREAS, the Colorado Department of Public Health and Environment and Eagle
County Department of Public Health and Environment have issued orders to prohibit gatherings
of 10 persons or more, ordered restaurants, bars and gyms closed for 30 days, ordered the closure
of Vail and Beaver Creek ski areas, which orders collectively and individually will have direct
impact on the Avon economy and the economic well-being of Avon businesses; and
WHEREAS, pursuant to the Colorado Disaster Emergency Act, the Town has identified a
local disaster currently present in the Town in connection with the occurrence or imminent threat
of widespread or severe damage, injury or loss of life or property resulting from COVID-19
requiring emergency action to avert danger or damage and to protect public health; and
WHEREAS, the cost and magnitude of responding to and recovery from the impact of
COVID-19 is far in excess of the Town’s available resources; and
WHEREAS, it would be appropriate and in the interests of the public health and safety,
and would further protect property, for the Town to take immediate actions for public safety, health
and welfare; and
Res 20-06 Declaration of Local Emergency
Page 2 of 4
WHEREAS, pursuant to §24-33.5-709(1), C.R.S., the Town Manager, as chief executive
officer of the Town, pursuant to Section 8.1 of the Town’s Home Rule Charter, declared a local
disaster emergency on March 19, 2020, attached hereto as Exhibit A; and
WHEREAS, pursuant to § 24-33.5-709 (1), C.R.S., the declaration shall not be continued
or renewed for a period in excess of seven days except with the consent of the Town Council; and
WHEREAS, the Town Council finds that it is appropriate and in the interests of the public
health, safety, and welfare and would further protect property, for the Town Council to ratify the
actions of the Town Manager and to extend the declaration until such time as the Town Council
terminates such declaration.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. The Town Council hereby confirms, determines, and declares that the spread of
COVID-19 virus through Avon, Colorado, poses an imminent threat of widespread or severe
damage, injury or loss of life or property requiring emergency action to avert danger or damage.
Section 2. The effect of this declaration of disaster shall be to continue the response and recovery
aspects of any and all applicable local and interjurisdictional disaster emergency plans and to
authorize the furnishing of aid and assistance under such plans, including, but not limited to aid
and assistance requested or required to support Eagle County, Colorado, and to avail the Town to
any financial assistance available from Eagle County, the State of Colorado or the United States
federal government.
Section 3. The Town Manager is directed and authorized to continue coordination with internal
and external partners and to direct Town staff as appropriate and necessary to address the local
disaster emergency.
Section 4. That the Town Council directs the Town Manager to implement steps for long term
continuity of government services.
Section 5. That the Town Council hereby ratifies and adopts the actions of the Town Manager and
hereby extends the Declaration of Local Disaster Emergency until such time as the Town Council
terminates such declaration.
Section 6. That the Town Clerk is directed to ensure this resolution and declaration is promptly
filed with the Eagle County Clerk and Recorder, the Colorado Office of Emergency Management
and the Eagle County Emergency Manager.
Res 20-06 Declaration of Local Emergency
Page 3 of 4
ADOPTED this 24th day of March 2020.
AVON TOWN COUNCIL
By:
_______________________________
Sarah Smith-Hymes, Mayor
Attest:
________________________________
Brenda Torres, Town Clerk
Res 20-06 Declaration of Local Emergency
Page 4 of 4
EXHIBIT A
DECLARATION OF LOCAL
DISASTER EMERGENCY
March 18, 2020
WHEREAS, COVID-19 is a highly contagious virus that has spread throughout the United States,
including the Town of Avon, Colorado (“Town”); and
WHEREAS, COVID-19 may cause serious illness and death, especially with respect to elderly
persons or those with underlying health conditions; and
WHEREAS, on January 30, 2020, the World Health Organization declared the worldwide
outbreak of COVID-19 a “public health emergency of international concern”; and
WHEREAS, on January 31, 2020, the United States Department of Health and Human Services
declared COVID-19 a public health emergency; and
WHEREAS, on March 6, 2020, Eagle County declared a local disaster; and
WHEREAS, on March 10, 2020, in response to the spread of COVID-19, Governor Polis declared
a state of emergency; and
WHEREAS, the State Department of Health and Eagle County Health have issued orders to
prohibit gatherings of 10 persons or more, ordered restaurants, bars and gyms closed for 30 days,
ordered the closure of Vail and Beaver Creek ski areas, which orders collectively and individually
will have direct impact on the Town of Avon economy and the economic well-being of Avon
businesses; and
WHEREAS, pursuant to the Colorado Disaster Emergency Act, the Town has identified a local
disaster currently present in the Town in connection with the occurrence or imminent threat of
widespread or severe damage, injury or loss of life or property resulting from COVID-19 requiring
emergency action to avert danger or damage and to protect public health; and
WHEREAS, the cost and magnitude of responding to and recovery from the impact of COVID-
19 is far in excess of the Town’s available resources; and
WHEREAS, it would be appropriate and in the interests of the public health and safety, and would
further protect property, for the Town to take immediate actions for public safety, health and
welfare; and
WHEREAS, pursuant to §24-33.5-709(1), C.R.S., the Town Manager, as chief executive officer
of the Town, pursuant to Section 8.1 of the Town’s Home Rule Charter, is authorized to declare a
local disaster emergency.
NOW, THEREFORE, THE TOWN MANAGER OF THE TOWN
OF AVON HEREBY DECLARES THE FOLLOWING:
Section 1. There is a local disaster emergency in the Town of Avon, Colorado arising from the
spread of COVID-19 which has resulted in the occurrence or imminent threat of widespread or
severe damage, injury or loss of life or property requiring emergency action to avert danger or
damage.
Section 2. The effect of this declaration of disaster shall be to activate the response and recovery
aspects of any and all applicable local and interjurisdictional disaster emergency plans and to seek
and authorize the furnishing of aid and assistance under such plans.
Section 3. Town of Avon residents, businesses and visitors are encouraged to remain informed,
follow the U.S. Center for Disease Control guidance for mitigation strategies for communities with
local COVID-19 transmission.
Section 4. This declaration shall be effective upon the date and time given below and shall remain
in effect for a period not to exceed seven (7) days thereafter except by or with the consent of a
majority of the members of the Town Council. Two copies will be filed promptly with the Eagle
County Emergency Manager, the Colorado Office of Emergency Management, the Eagle County
Clerk and Recorder and the Town Clerk.
Dated: March 18, 2020, Time: 5:00 pm
THE TOWN OF AVON
____________________________________
Eric Heil, Town Manager
Yes for Eagle River Fire
•Ballot Question A
–Asking Voters to Approve 1.8 mills for Fire Equipment and
Maintenance Fund
–Equates to $12.37 annually per $100,000 of home value
•Money may only be used for:
Yes for Eagle River Fire
Providing and maintaining
equipment for public health and
safety
Emergency response to incidents
like wildfires, water rescues, mass
causality incidents
Maintaining a state of readiness by
ensuring proper operation and
durability of fire and emergency
equipment
•Why?
–Increase in emergencies: 10 percent over the past
5 years to an average of 7 emergency calls per day.
–Population growth: Eagle County’s population
estimated to reach almost 70,000 in the next 15
years.
–Aging population: District’s population is expected
to get older, requiring more services
Yes for Eagle River Fire
•Ballot Question A
–The District needs to be prepared for any
challenge and able to fully participate in our
County’s responses to emergencies, including
wildfires, floods and health crises.
Yes for Eagle River Fire
TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Asst. Town Manager
RE: Ordinance No. 20-04 - 2020 COP Ordinance, Second Reading
DATE: March 24, 2020
SUMMARY: Second reading of Ordinance No. 20-04 to refinance the Town's Series 2010 Certificates of
Participation (COPs) is scheduled for March 24, 2020. First reading of the ordinance passed on March 10.
The refinancing is a private placement. On March 11, the Town accepted a Term Sheet proposal from
JPMorgan Chase Bank and entered into a Rate Lock Letter Agreement with the Bank that sets the interest
rate for the refinancing at an annual fixed rate of 1.23%. The ordinance delegates to the Mayor, the Town
Manager, and the Finance Director the authority to execute the closing documents on behalf of the Town.
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 COPs were issued to refinance the original Fleet Maintenance Facility 1998 COPs 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 the locked-in rate of 1.23%, it is estimated that the refunding issue will be approximately $3,987,000.
The maturity date of December 1, 2030 will not change. Present value savings is estimated at $636,000 or
15.7% of the refunded bonds.
Bond Counsel Dee Wisor and Jonathan Heroux with Piper Sandler will be available to call-in to the meeting
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
ATTACHMENTS:
Attachment A - Ordinance No. 20-04
Attachment B - Site Lease Agreement
Attachment C - Lease Purchase Agreement
Attachment D - Indenture of Trust
Attachment E - Escrow Agreement
Attachment F - Term Sheet
Attachment G - Rate Lock Letter Agreement
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.
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
ATTACHMENT A
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
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 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
ATTACHMENT A
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.
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
ATTACHMENT A
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
presented to the Town Council, provided that such documents may be completed, corrected or
ATTACHMENT A
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 Town Council hereby further determines that the amount of rental
ATTACHMENT A
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 A
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 A
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 5:30 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 A
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 A
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 A
WITNESS my hand and the seal of the Town affixed this ____ day of March 2020.
[ S E A L ]
_______________________________________
Town Clerk
ATTACHMENT A
EXHIBIT A
(Attach Notices of Meetings of March 10, 2020 and March 24, 2020)
ATTACHMENT A
EXHIBIT B
(Affidavits of Publication)
51929362.v1
ATTACHMENT A
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 SEPTEMBER 2, 2020
BETWEEN
TOWN OF AVON, COLORADO
AS LESSOR
AND
UMB BANK, N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE,
AS LESSEE
ATTACHMENT B
This SITE LEASE AGREEMENT, dated as of September 2, 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 UMB BANK, N.A., 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 September
2, 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 B
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 B
$3,987,000, 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 B
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 UMB Bank, n.a. solely in its capacity as Trustee under the Indenture,
and (b) nothing herein shall be construed as creating any liability on UMB Bank, n.a. 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 B
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 B
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 B
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 B
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
UMB Bank, n.a., solely in its capacity as
Trustee under the Indenture, as Lessee
By: By:
Sarah Smith Hymes, Mayor Leigh Lutz, Senior Vice President
[SEAL]
ATTEST:
____________________________________
Brenda Torres, Town Clerk
ATTACHMENT B
STATE OF COLORADO )
)
COUNTY OF EAGLE ) SS.
)
TOWN OF AVON )
The foregoing instrument was acknowledged before me this _____ day of September,
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 September
2020, by Leigh Lutz, as Senior Vice President of UMB Bank, n.a., as Trustee.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
ATTACHMENT B
EXHIBIT A
DESCRIPTION OF THE LEASED PROPERTY:
ATTACHMENT B
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.v2
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 Lease Purchase Agreement is exempt from the
documentary fee.
LEASE PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 2, 2020
BETWEEN
UMB BANK, N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE IDENTIFIED HEREIN,
AS LESSOR
AND
TOWN OF AVON, COLORADO,
AS LESSEE
ATTACHMENT C
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 C
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. ........................................................................................ 37
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 C
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. .................................................................................................. 41
Section 14.5 Amendments. .................................................................................................... 41
Section 14.6 Amounts Remaining in Funds. ......................................................................... 41
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................................................................................. 42
Section 14.12 Applicable Law. ................................................................................................ 42
Section 14.13 The Trustee Is Independent of the Town. ......................................................... 42
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 C
This LEASE PURCHASE AGREEMENT, dated as of September 2, 2020 (this “Lease”),
is by and between UMB Bank, n.a., 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 C
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 C
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 C
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 C
“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, or where the Trustee’s corporate 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 “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 September 2, 2020, between UMB Bank, n.a.,
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.
“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.
“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 UMB Bank, n.a., 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.
ATTACHMENT C
“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
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 September 2, 2020, entered into by
the Trustee, as the same may be amended or supplemented.
ATTACHMENT C
“Initial Purchaser” means JPMorgan Chase Bank, N.A., 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 September 2, 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, less (a) all related expenses (including, without 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.
ATTACHMENT C
“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
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.
ATTACHMENT C
“Site Lease” means the Site Lease Agreement, dated as of September 2, 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.
“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 UMB Bank, n.a., 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.
ATTACHMENT C
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.
ATTACHMENT C
(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
ATTACHMENT C
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,
ATTACHMENT C
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.
ATTACHMENT C
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.
ATTACHMENT C
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 Initial Purchaser (for so long as the Initial 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.
ATTACHMENT C
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.
ATTACHMENT C
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, except as
expressly required or permitted by this Lease. 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.
ATTACHMENT C
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.
ATTACHMENT C
(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
ATTACHMENT C
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; provided that
the Trustee’s failure to declare an Event of Nonappropriation on such date shall not be
construed as a waiver of the event of Nonappropriation or the consequences of an Event
of Nonappropriation under this Lease. 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.
ATTACHMENT C
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.
ATTACHMENT C
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.
ATTACHMENT C
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.
ATTACHMENT C
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
ATTACHMENT C
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
ATTACHMENT C
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.
ATTACHMENT C
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 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 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, and the Town agrees that, if
by reason of any such insufficiency of the Net Proceeds, 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 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.
ATTACHMENT C
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.
ATTACHMENT C
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, 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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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
and subject to Appropriation by the Council, 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.
ATTACHMENT C
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;
ATTACHMENT C
(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.
ATTACHMENT C
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 and the Initial Purchaser (if the
Initial Purchaser is the Owner of 100% of the Outstanding Certificates) which consent shall not
be unreasonably withheld. The Trustee will notify the Town of any assignment to a successor by
operation of law. Any assignment in contravention hereof shall be void.
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.
ATTACHMENT C
ARTICLE 13
EVENTS OF LEASE DEFAULT AND REMEDIES
Section 13.1 Events of Lease Default Defined. Any one of the following shall be an
Event 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 after 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 following an Event of
Nonappropriation under Section 9.3 hereof; 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; or
(e) the Town files a petition or application seeking reorganization under
federal bankruptcy law or other debtor relief under the laws of the State or a receiver is
appointed for all or a material portion of the Town’s assets or revenues.
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.
ATTACHMENT C
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,
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
ATTACHMENT C
Section 13.2, 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 Section 8.02(m) of the Indenture.
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
ATTACHMENT C
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.
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.
ATTACHMENT C
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 by personal
delivery, next day delivery services, electronic communication, or mailed by certified or
registered mail, postage prepaid, addressed as follows:
if to the Trustee,
UMB Bank, n.a.
Corporate Trust & Escrow Services
1670 Broadway
Denver, Colorado 80202
if to the Town,
Town of Avon, Colorado
100 Mikaela Way
Avon, Colorado 81620
Attention: Finance Director
if to the Initial Purchaser,
JPMorgan Chase Bank, N.A.
1301 Canyon Blvd.
Boulder, Colorado 80302-5254
Attention: Amy S. Smith
The Town, the Initial Purchaser and the Trustee may, by written notice, designate any
further or different means of communication or 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.
ATTACHMENT C
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 with the prior written consent of the Town and the Trustee and the prior written consent
of the Initial Purchaser so long as the Initial Purchaser is the Owner of 100% of the Outstanding
Certificates, and in accordance with the provisions of 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
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
ATTACHMENT C
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
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 UMB Bank, n.a. solely in its capacity as Trustee under the Indenture, and
(b) nothing herein shall be construed as creating any liability on UMB Bank, n.a. 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.
Section 14.19 Financial Reporting. Unless otherwise available electronically on a
public website, the Town shall provide the Initial Purchaser with audited annual financial
statements, prepared by an independent certified public accountant, with 270 days of the close of
its Fiscal Year. Additionally, the Town shall provide the Initial Purchaser with a copy of its
ATTACHMENT C
annual budget, as adopted, within 30 days of adoption. The Town shall also provide the Initial
Purchaser with such other documents and information as may be required from time to time.
ATTACHMENT C
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
UMB Bank, n.a., solely in its capacity of
Trustee under the Indenture, as Lessor
By: ________________________________ By: ________________________________
Sarah Smith Hymes, Mayor Leigh Lutz, Senior Vice President
Attest:
By:_____________________________
Brenda Torres, Town Clerk
[TOWN SEAL]
ATTACHMENT C
STATE OF COLORADO )
) ss.
TOWN OF AVON )
)
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this _____ day of September,
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 September,
2020, by Leigh Lutz, as Senior Vice President of UMB Bank, n.a., as Trustee.
WITNESS my hand and official seal.
(SEAL) ____________________________________
Notary Public
My commission expires:
ATTACHMENT C
EXHIBIT A
DESCRIPTION OF LEASED PROPERTY
ATTACHMENT C
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 C
EXHIBIT C
BASE RENTALS SCHEDULE
Date
Base Rentals
Principal
Component
Certificates
Base Rentals
Interest Component
Certificates Total Base Rentals
Annual
Base Rentals
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 C
EXHIBIT D
FORM OF NOTICE OF LEASE RENEWAL
To: UMB Bank, n.a., 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
September 2, 2020 (the “Lease”), between the Town and UMB Bank, n.a., 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
ATTACHMENT C
INDENTURE OF TRUST
DATED AS OF SEPTEMBER 2, 2020
BY
UMB BANK, N.A.,
As Trustee
ATTACHMENT D
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 Execution. ..................................................................................................... 11
Section 2.04 Delivery of Certificates. ................................................................................ 11
Section 2.05 Mutilated, Lost, Stolen or Destroyed Certificates. ....................................... 11
Section 2.06 Registration of Certificates; Persons Treated as Owners; Transfer and
Exchange of Certificates. .............................................................................. 12
Section 2.07 Cancellation of Certificates. .......................................................................... 12
Section 2.08 Additional Certificates. ................................................................................. 13
Section 2.09 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. ........................................................ 19
Section 4.04 Notice of Redemption. .................................................................................. 20
Section 4.05 Redemption Payments. ................................................................................. 21
ARTICLE 5 INVESTMENTS ................................................................................................... 22
Section 5.01 Investment of Moneys................................................................................... 22
Section 5.02 Method of Valuation and Frequency of Valuation. ...................................... 23
ARTICLE 6 DEFEASANCE AND DISCHARGE .................................................................. 24
Section 6.01 Defeasance and Discharge. ........................................................................... 24
ARTICLE 7 EVENTS OF INDENTURE DEFAULT AND REMEDIES ............................. 26
Section 7.01 Events of Indenture Default Defined. ........................................................... 26
Section 7.02 Remedies ....................................................................................................... 26
Section 7.03 Legal Proceedings by Trustee. ...................................................................... 26
Section 7.04 Discontinuance of Proceedings by Trustee. .................................................. 27
Section 7.05 Owners of Certificates May Direct Proceedings. ......................................... 27
ATTACHMENT D
Section 7.06 Limitations on Actions by Owners of Certificates. ...................................... 27
Section 7.07 Trustee May Enforce Rights Without Possession of Certificates. ................ 28
Section 7.08 Remedies Not Exclusive. .............................................................................. 28
Section 7.09 Delays and Omissions Not to Impair Rights................................................. 28
Section 7.10 Application of Moneys in Event of Indenture Default. ................................ 28
ARTICLE 8 CONCERNING THE TRUSTEE ....................................................................... 29
Section 8.01 Duties of the Trustee. .................................................................................... 29
Section 8.02 Liability of Trustee; Trustee’s Use of Agents............................................... 29
Section 8.03 Representations and Covenants of Trustee. .................................................. 31
Section 8.04 Compensation. .............................................................................................. 32
Section 8.05 Notice of Default; Right to Investigate. ........................................................ 32
Section 8.06 Obligation to Act on Defaults. ...................................................................... 33
Section 8.07 Reliance on Requisition, etc. ........................................................................ 33
Section 8.08 Trustee May Own Certificates. ..................................................................... 33
Section 8.09 Construction of Ambiguous Provisions. ....................................................... 33
Section 8.10 Resignation of Trustee. ................................................................................. 34
Section 8.11 Removal of Trustee. ...................................................................................... 34
Section 8.12 Appointment of Successor Trustee. .............................................................. 34
Section 8.13 Qualification of Successor. ........................................................................... 34
Section 8.14 Instruments of Succession............................................................................. 34
Section 8.15 Merger of Trustee. ........................................................................................ 35
Section 8.16 Intervention by Trustee. ................................................................................ 35
Section 8.17 Books and Record of the Trustee; Trustee Record Keeping. ........................ 35
Section 8.18 Environmental Matters.................................................................................. 35
ARTICLE 9 SUPPLEMENTAL INDENTURES AND AMENDMENTS OF THE LEASE
AND SITE LEASE ...................................................................................................................... 36
Section 9.01 Supplemental Indentures and Amendments Not Requiring Certificate
Owners’ Consent. .......................................................................................... 36
Section 9.02 Supplemental Indentures and Amendments Requiring Certificate Owners’
Consent. ........................................................................................................ 36
Section 9.03 Amendment of the Lease and the Site Lease. ............................................... 37
ARTICLE 10 MISCELLANEOUS ........................................................................................... 39
Section 10.01 Evidence of Signature of Owners and Ownership of Certificates. ............... 39
Section 10.02 Inspection of the Leased Property. ................................................................ 39
Section 10.03 Parties Interested Herein. .............................................................................. 39
Section 10.04 Titles, Headings, Etc. .................................................................................... 40
Section 10.05 Severability. .................................................................................................. 40
Section 10.06 Governing Law. ............................................................................................ 40
Section 10.07 Execution in Counterparts............................................................................. 40
Section 10.08 Notices. ......................................................................................................... 40
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. ........................................................................................ 41
EXHIBIT A - FORM OF CERTIFICATE A-1
ATTACHMENT D
INDENTURE OF TRUST
THIS INDENTURE OF TRUST dated as of September 2, 2020 (this “Indenture”), is
executed and delivered by UMB BANK, N.A., 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 D
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 D
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 D
“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 “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 September 2, 2020, between UMB
Bank, n.a., 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.
“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
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.
ATTACHMENT D
“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 UMB Bank, n.a., 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 September 2, 2020, entered into by
the Trustee as the same may be hereafter amended or supplemented.
“Initial Purchaser” means JPMorgan Chase Bank, N.A., 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 December 1, 2020.
“Lease” means the Lease Purchase Agreement dated as of September 2, 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,
ATTACHMENT D
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 2.07
of this Indenture;
(b) Certificates in substitution for which other Certificates have been executed and
delivered under Section 2.05 or 2.06 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.
“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.
ATTACHMENT D
“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 September 2, 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.
“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, 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.
ATTACHMENT D
“Trustee” means UMB Bank, n.a., 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 D
ARTICLE 2
THE CERTIFICATES
Section 2.01 Amount of the Certificates; Nature of the Certificates. Except as
provided in Section 2.08 hereof, the aggregate original principal amount of Certificates that may
be executed and delivered pursuant to this Indenture shall be $3,987,000. 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 September 2, 2020, shall mature on December 1, 2030,
and the principal amount thereof shall be payable in annual installments as shown below, bearing
interest at a rate of 1.230% per annum.
ATTACHMENT D
Principal Payment
Date
(December 1)
Principal
Amount
2020 $367,000
2021 342,000
2022 346,000
2023 353,000
2024 355,000
2025 356,000
2026 363,000
2027 369,000
2028 374,000
2029 380,000
2030 382,000
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.
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.
Notwithstanding any provisions to the contrary contained herein, so long as the Initial
Purchaser is the sole Owner of all Outstanding Certificates, the Initial Purchaser shall not be
required to surrender such Certificates to the Trustee to receive payment in connection with
principal installments, but shall be required to surrender the Certificates only on the final
ATTACHMENT D
Maturity Date or redemption date, if any, to receive payment of the final principal payment
hereof.
Section 2.03 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
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 2.04 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 2.05 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
ATTACHMENT D
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 2.06 Registration of Certificates; Persons Treated as Owners; Transfer
and Exchange of Certificates. Books for the registration and for the transfer of Certificates
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 2.07 Cancellation of Certificates. Whenever any outstanding Certificates
shall be delivered to the Trustee for cancellation pursuant to this Indenture, upon payment
ATTACHMENT D
thereof or for or after replacement pursuant to Sections 2.04 or 2.05 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 2.08 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
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
ATTACHMENT D
(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
(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.
Additional Certificates may be issued without a reserve fund or with a different reserve
fund requirement than the Certificates.
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 2.09 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.
ATTACHMENT D
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) $3,889,950 of the proceeds of the Certificates (along with $508,700 currently on
deposit in the Reserve Fund for the Refunded Bonds) to be deposited into the Escrow Account to
be applied to the Refunding Project; and
(b) $97,050 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
ATTACHMENT D
Avon, Colorado, 2020 Certificates of Participation, Escrow Account” (the “Escrow Account”).
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.
ATTACHMENT D
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.
ATTACHMENT D
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.
ATTACHMENT D
ARTICLE 4
REDEMPTION OF CERTIFICATES
Section 4.01 Optional Redemption. The Certificates are not subject to redemption
prior to maturity at the option of the Town.
Section 4.02 Mandatory Sinking Fund Redemption. The Certificates are not subject
to mandatory sinking fund redemption
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.
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
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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.
Notwithstanding the foregoing or any other provisions to the contrary in the Lease or this
Indenture, if the Net Proceeds resulting from the exercise of such Lease Remedies are
insufficient to redeem the Certificates at 100% of the principal amount thereof plus interest
accrued to the redemption date, 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 fees,
costs, and expenses as provided in this Indenture, shall, determine that the Certificates shall not
be subject to extraordinary mandatory redemption under this Section 4.03, in which event the
Trustee will not apply any Net Proceeds or other available moneys to the redemption of any
Certificates prior to their respective maturity dates. In such event, the Trustee shall (a) allocate
such Net Proceeds (together with any other available moneys held under this Indenture),
proportionately among all Outstanding Certificates, and (b) apply such allocation of Net
Proceeds to the payment of the principal of and interest on the Certificates on the regularly
scheduled maturity and Interest Payment Dates of the Certificates.
Section 4.04 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 4.05 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.
ATTACHMENT D
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.
ATTACHMENT D
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
ATTACHMENT D
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.
ATTACHMENT D
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.
ATTACHMENT D
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,
ATTACHMENT D
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.
ATTACHMENT D
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 2.08 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 2.08 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.
ATTACHMENT D
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,
UMB Bank, n.a.
Corporate Trust and Escrow Services
1670 Broadway
Denver, Colorado 80202
if to the Town,
Town of Avon, Colorado
100 Mikaela
Avon, Colorado 81620
Attention: Finance Director
if to the Initial Purchaser,
JPMorgan Chase Bank, N.A.
1301 Canyon Blvd.
Boulder, CO 80302-5254
Attention: Amy S. Smith
The Town, the Initial Purchaser and the Trustee may, by written notice, designate any
further or different means of communication or addresses to which subsequent notices,
certificates or other communications shall be sent.
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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
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.
UMB Bank, n.a., as Trustee
By:
Senior Vice President
ATTACHMENT D
EXHIBIT A
FORM OF CERTIFICATE
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 September 2, 2020, between
UMB Bank, n.a., as Trustee, as lessor,
and the Town of Avon, Colorado, as lessee
No. R-1 $3,987,000
Interest Rate Maturity Date Dated Date CUSIP Number
1.230% December 1, 2030 September 2, 2020 N/A
Registered Owner: JPMORGAN CHASE BANK, N.A.
Principal Amount: THREE MILLION NINE HUNDRED EIGHTY SEVEN THOUSAND
DOLLARS
THIS CERTIFIES THAT the Registered Owner (specified above), or registered assigns,
as the Registered Owner (the “Owner”) of this Refunding 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 September 2, 2020, between UMB Bank, n.a., 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 September 2, 2020, by the Trustee, for the registered owners of the
Refunding 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
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.
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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 December
1, 2020, 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
OR A MULTIPLE FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL
OBLIGATION WHATSOEVER OF THE TOWN, WITHIN THE MEANING OF ANY
ATTACHMENT D
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.
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), PAYABLE IN ANNUAL INSTALLMENTS OF
PRINCIPAL IN THE AMOUNTS AND ON THE DATES SPECIFIED BELOW AND IS
ENTITLED TO RECEIVE INTEREST ON THE PRINCIPAL AMOUNT AT THE INTEREST
RATE (SPECIFIED ABOVE).
Principal Payment
Date
(December 1)
Principal
Amount
2020 $367,000
2021 342,000
2022 346,000
2023 353,000
2024 355,000
2025 356,000
2026 363,000
2027 369,000
2028 374,000
2029 380,000
2030 382,000
TOTAL $3,987,000
___________
*Maturity.
Notwithstanding any provisions to the contrary contained in the Indenture, so long as
the Initial Purchaser is the sole Owner of all Outstanding Certificates, the Initial Purchaser
shall not be required to surrender such Certificates to the Trustee to receive payment in
connection with principal installments, but shall be required to surrender the Certificates only
on the final Maturity Date or redemption date, if any, to receive payment of the final principal
payment hereof.
This Certificate is issued 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 issued with the intent that the laws of the State of Colorado shall
govern its legality, validity, enforceability and construction. 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.
ATTACHMENT D
This Certificate shall not be valid or become obligatory for any purpose or be entitled to
any security or benefit under the Site Lease, the Lease or the Indenture, until executed by the
Trustee.
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.
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: September 2, 2020
UMB Bank, n.a., as Trustee
By:
Senior Vice President
ATTACHMENT D
(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 D
(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)
ATTACHMENT D
TOWN OF AVON, COLORADO
REFUNDING CERTIFICATES OF PARTICIPATION
SERIES 2020
ESCROW AGREEMENT
DATED as of September 2, 2020 made by and between THE TOWN OF AVON,
COLORADO (the “Town), and UMB Bank, n.a., 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, JPMorgan Chase Bank, N.A. (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 $3,987,000 (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 E
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 September 2, 2020 (the “Indenture”),
executed by UMB Bank, n.a., 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 E
(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 $4,398,650 derived from the proceeds of
the Certificates and other available funds of the Town, 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 $4,398,650 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 E
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 E
(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 E
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 E
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 E
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 E
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 E
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 Way
Avon, Colorado 81620
Attention: Finance Director
ATTACHMENT E
If to the Escrow Agent: UMB Bank, n.a.
1670 Broadway
Denver, CO 80202
Attention: Corporate Trust and Escrow Services
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.
Section 22. Jurisdiction and Venue. This Agreement is governed by the
internal laws of the State of Colorado. The parties consent to the exclusive jurisdiction of any
court of the State of Colorado located in Eagle County for the purpose of any suit, action or other
proceeding arising under this Agreement, and the parties hereby irrevocably agree that all claims
in respect of any such suit, action or proceeding may be heard and determined by such court.
Section 23. Exercise of Option. The Town Council of the Town has elected
in the Ordinance to exercise on the behalf and in the name of the Town its option to redeem the
Refunded Certificates on the Redemption Date. The Town hereby authorizes and directs the
UMB Bank, n.a., as trustee for such Refunded Certificates, to give notice of refunding,
defeasance and redemption of the Refunded Certificates to the registered owners of the Refunded
Certificates in accordance with the provisions of the Ordinance authorizing the issuance of the
Refunded Certificates and the Sale Certificate relating to the Certificates dated as of Marach 24,
2020.
Section 24. Form of Notice. The notice so to be given shall be in substantially
the form as set forth in Exhibit B.
ATTACHMENT E
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 UMB Bank, n.a. 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
UMB Bank, n.a.,
as Escrow Agent
Vice President
ATTACHMENT E
EXHIBIT A
CPA REPORT
ATTACHMENT E
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 E
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 ___________, 2020.
UMB BANK, N.A.,
Acting as Trustee for the Refunded
Certificates
ATTACHMENT E
ATTACHMENT F
ATTACHMENT F
ATTACHMENT F
ATTACHMENT F
ATTACHMENT F
ATTACHMENT G
ATTACHMENT G
ATTACHMENT G
(970) 748-4055 swright@avon.org
TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Asst. Town Manager
RE: Resolution No. 20-07 Moral Obligation
DATE: March 24, 2020
SUMMARY: This resolution creates a moral, but not legal, obligation on behalf of the Town, to
fund any deficiencies of pledged revenues for the Avon Urban Renewal Tax Increment Revenue
Refunding Note, Series 2020.
The resolution states that it is the intention and expectation of the Town Council to appropriate
such funds necessary to fund any deficiencies in the bond account, within the limits of available
funds and revenues. This declaration of intent is not be binding upon the Town Council or any
future Town Council in any future fiscal year. The Town Council may determine in its sole
discretion, but shall never be required, to make the appropriations so requested. The 2020
Cooperation Agreement is similar to the agreement approved for the 2017 URA bonds, which
will continue to be in effect.
PROPOSED MOTION: "I move to approve Resolution No. 20-07, A RESOLUTION CONCERNING
THE AVON URBAN RENEWAL AUTHORITY AND ITS TAX INCREMENT REVENUE
REFUNDING NOTE, SERIES 2020; AUTHORIZING AND DIRECTING ACTIONS BY THE
TOWN MANAGER WITH RESPECT TO THE PREPARATION OF REQUESTS TO THE
TOWN COUNCIL FOR APPROPRIATION OF MONEYS TO FUND ANY DEFICIENCIES
IN THE BOND ACCOUNT PLEDGED TO THE PAYMENT OF SUCH BONDS;
AUTHORIZING THE 2020 COOPERATION AGREEMENT; AND OTHER ACTIONS
TAKEN BY THE TOWN IN CONNECTION THEREWITH."
Thank you, Scott
ATTACHMENTS:
Attachment A - Resolution No. 20-07
Attachment B - 2020 Cooperation Agreement
1
TOWN OF AVON
RESOLUTION NO. 20-07
A RESOLUTION CONCERNING THE AVON URBAN
RENEWAL AUTHORITY AND ITS TAX INCREMENT
REVENUE REFUNDING NOTE, SERIES 2020;
AUTHORIZING AND DIRECTING ACTIONS BY THE
TOWN MANAGER WITH RESPECT TO THE
PREPARATION OF REQUESTS TO THE TOWN
COUNCIL FOR APPROPRIATION OF MONEYS TO FUND
ANY DEFICIENCIES IN THE BOND ACCOUNT PLEDGED
TO THE PAYMENT OF SUCH BONDS; AUTHORIZING
THE 2020 COOPERATION AGREEMENT; AND OTHER
ACTIONS TAKEN BY THE TOWN IN CONNECTION
THEREWITH.
WHEREAS, the Town Council (the “Town Council”) of the Town of Avon,
Colorado (the “Town”), by Resolution No. 07-20, adopted June 26, 2007, created the Avon
Urban Renewal Authority of the Town (the “Authority”); and
WHEREAS, pursuant to Resolution No. 07-27, adopted on August 14, 2007, and
as amended pursuant to Resolution No. 15-21, Series of 2015, on November 10, 2015, the Town
approved the Town Center West Area Urban Renewal Plan, as amended (the “Plan”) pursuant to
the Colorado Urban Renewal Law (the “URA Law”); and
WHEREAS, the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2013 in the original aggregate principal amount of $6,825,000, and presently
outstanding in the aggregate principal amount of $4,560,000 (the “2013 Bonds”), for the purpose
of financing the acquisition, construction and equipping of the Urban Renewal Project and
refinancing a loan be and between the Authority and Vectra Bank dated May 28, 2009; and
WHEREAS, in connection with the issuance of the 2013 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2013 Cooperation
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, pursuant to Resolution No. 16-04, Series of 2016 of the Authority,
the (“2017 Bond Resolution”), the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2017, in the original aggregate principal amount of $3,000,000 (the “2017 Bonds”)
for the purpose of financing the acquisition, construction and equipping of the project described
in the 2017 Bond Resolution and the Plan; and
WHEREAS, in connection with the issuance of the 2017 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2017 Cooperation
ATTACHMENT A
2
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, the Authority intends to issue, pursuant to a certain Loan Agreement
(the “2020 Loan Agreement”), its Tax Increment Revenue Refunding Note, Series 2020, with a
lender hereafter determined by the Authority (the “Lender”) to obtain a loan in the principal
amount of not to exceed $4,700,000 (the “Loan”) in order to finance the costs of refunding the
2013 Bonds (the “Refunding Project”); and
WHEREAS, all capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the 2020 Loan Agreement; and
WHEREAS, pursuant to a 2020 Cooperation Agreement (the “2020 Cooperation
Agreement”) between the Town and the Authority, the Town will agree, subject to conditions
specified in the 2020 Cooperation Agreement, to loan funds to the Authority for the Refunding
Project and deposit to certain funds in accordance with the Loan Agreement; and
WHEREAS, the Town Council has determined that it is in the best interest of the
Town and the Authority has determined it is in the best interest of the Authority, that the 2017
Cooperation Agreement remain in full force and effect, and that this 2020 Cooperation
Agreement shall be an additional cooperation agreement among the Town and the Authority,
which agreement shall supersede and replace in its entirety the 2013 Cooperation Agreement;
and
WHEREAS, pursuant to the 2020 Cooperation Agreement between the Town and
the Authority, the Town may agree, subject to conditions specified in the 2020 Cooperation
Agreement, to loan funds to the Authority for the Project; and
WHEREAS, the Loan Agreement requires that the Pledged Property Tax
Revenues be deposited in the Revenue Fund and that moneys on deposit in the Revenue Fund be
transferred each month to the Loan Payment Fund in the amounts set forth therein to pay the next
installment of interest and principal on the outstanding Note in accordance with the Loan
Agreement; and
WHEREAS, the Loan Agreement contemplates that if, in any month, there are
insufficient moneys on deposit in the Revenue Fund to make the payments into the Loan
Payment Fund in the amounts required by the Loan Agreement, or if the Executive Director
anticipates that there will be a deficiency in moneys on deposit in the Revenue Fund to make any
such deposit in any given month, then the Executive Director shall immediately notify the Town
Manager of any such insufficiency, and the Town Manager shall notify the Town Council of any
such insufficiency in the Revenue Fund and request an appropriation or supplemental
appropriation in an amount sufficient to make up any such insufficiency; and
WHEREAS, the Town Council wishes to make a non-binding statement of its
present intent to appropriate funds in an amount sufficient to make deposits to the Loan Payment
Fund in an amount equal to any such deficiency in the Revenue Fund and to authorize and direct
ATTACHMENT A
3
the Town Manager to take certain actions for the purpose of causing requests for such
appropriations to be presented to the Town Council for consideration; and
WHEREAS, the form of the 2020 Cooperation Agreement is on file with the
Town Clerk.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. Appropriations to the Loan Payment Fund. In each year the Note
is outstanding, and as provided in the Loan Agreement, if, in any month, there are insufficient
moneys on deposit in the Revenue Fund to make the transfers into the Loan Payment Fund in the
amounts required by the Loan Agreement, or if the Executive Director anticipates that there will
be a deficiency in moneys on deposit in the Revenue Fund to make any such transfers in any
given month, then the Executive Director is required to immediately notify the Town Manager of
any such insufficiency. Upon the receipt of any such notice from the Executive Director, the
Town Manager shall prepare and submit to the Town Council a request for an appropriation of
an amount equal to any such insufficiency, to be deposited in the Loan Payment Account. It is
the present intention and expectation of the Town Council to appropriate such funds as
requested, within the limits of available funds and revenues, but this declaration of intent shall
not be binding upon the Town Council or any future Town Council in any future fiscal year. The
Town Council may determine in its sole discretion, but shall never be required, to make the
appropriations so requested. All sums appropriated by the Town Council for such purpose shall
be deposited by or on behalf of the Authority into the Bond Account. Nothing provided in this
Section 1 shall create or constitute a debt, liability or multiple fiscal year financial obligation of
the Town.
Section 2. Repayment of Amounts Appropriated. In the event that the Town
Council appropriates funds as contemplated by Section 1 hereof, any amounts actually advanced
shall be treated as a loan from the Town to the Authority under the 2020 Cooperation Agreement
and shall be repaid by the Authority from and to the extent of Pledged Revenues available for the
payment of subordinate obligations in accordance with the Loan Agreement.
Section 3. Limitation to Note. Unless otherwise expressly provided by a
subsequent resolution of the Town Council, the provisions of this Resolution shall apply only to
the funding of the Loan Payment Account originally established in connection with the Note and
shall not apply to any other additional obligations.
ATTACHMENT A
4
Section 4. Approval and Authorization of the 2020 Cooperation Agreement.
The form of the 2020 Cooperation Agreement is hereby approved. The Town shall enter into
and perform its obligations under the 2020 Cooperation Agreement, in substantially the form of
such document as is on file with the Town Clerk, provided that such document may be
completed, corrected or revised as deemed necessary by the parties thereto in order to carry out
the purposes of this Resolution, the execution thereof being deemed conclusive approval of any
such changes by the Town. The Mayor or Town Manager is hereby authorized and directed to
execute the 2020 Cooperation Agreement on behalf of the Town, and the Town Clerk is hereby
authorized to attest to the 2020 Cooperation Agreement.
Section 5. General Repealer. All prior resolutions, or parts thereof,
inconsistent herewith are hereby repealed to the extent of such inconsistency.
Section 6. Effectiveness. This Resolution shall take effect immediately upon
its passage.
PASSED AND ADOPTED March 24, 2020.
TOWN OF AVON, COLORADO
____________________________
Sarah Smith Hymes, Mayor
ATTEST: APPROVED AS TO FORM:
____________________________ ____________________________
Brenda Torres, Town Clerk Paul Wisor, Town Attorney
ATTACHMENT A
A-1
STATE OF COLORADO )
) SS.
TOWN OF AVON )
I, Brenda Torres, the Town Clerk of the Town of Avon, Colorado, do hereby
certify that:
1. The foregoing pages are a true and correct copy of a resolution (the
“Resolution”) passed and adopted by the Town Council (the “Council”) at a regular meeting held
on March 24, 2020.
2. The Resolution was duly moved and seconded and the Resolution was
adopted at the meeting of March 24, 2020, by an affirmative vote of a majority of the members
of the 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 Nottingham-Underwood
Jake Wolf
3. The members of the Council were present at such meetings and voted on
the passage of such Resolution as set forth above.
4. The Resolution was approved and authenticated by the signature of the
Mayor of the Town, sealed with the Town seal, attested by the Town Clerk and recorded in the
minutes of the Council.
5. There are no bylaws, rules or regulations of the Council which might
prohibit the adoption of said Resolution.
6. Notice of the meeting of March 24, 2020, in the form attached hereto as
Exhibit A, was posted at the Avon Town Hall, 100 Mikaela Way; Avon Recreation Center, 90
Lake Street; Avon Public Library, 200 Benchmark Road; Avon Elementary School, 850 W
Beaver Creek Boulevard and the Town’s website, not less than twenty-four (24) hours prior to
the meeting in accordance with law.
ATTACHMENT A
A-2
WITNESS my hand and the seal of the Town affixed March 24, 2020.
____________________________________
Town Clerk
(SEAL)
ATTACHMENT A
A-3
Exhibit A
(Form of Notice of Meeting)
ATTACHMENT A
2020 COOPERATION AGREEMENT
BETWEEN THE TOWN OF AVON AND
THE AVON URBAN RENEWAL AUTHORITY
THIS 2020 COOPERATION AGREEMENT (this “Agreement”), dated as of
June 1, 2020, is made and entered into between the TOWN OF AVON, COLORADO (the
“Town”) and the AVON URBAN RENEWAL AUTHORITY (the “Authority”).
WHEREAS, the Town is a Colorado home rule municipality with all the powers
and authority granted pursuant to Article XX of the Colorado Constitution and its Town Charter;
and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the
powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised
Statutes (“C.R.S.”) (the “Urban Renewal Law”); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article 1, Part 2, C.R.S., the Town and the Authority are authorized to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each
governmental entity; and
WHEREAS, the Town has heretofore approved the Avon Urban Renewal
Authority Town Center West Area Urban Renewal Plan, as amended (the “Plan”) and the urban
renewal project described therein (the “Urban Renewal Project”); and
WHEREAS, the Urban Renewal Project has been undertaken for the public
purpose of enhancing employment opportunities, eliminating existing conditions of blight, and
improving the tax base of the Town; and
WHEREAS, pursuant to Section 31-25-112, C.R.S., the Town is specifically
authorized to do all things necessary to aid and cooperate with the Authority in connection with
the planning or undertaking of any urban renewal plans, projects, programs, works, operations or
activities of the Authority, to enter into agreements with the Authority respecting such actions to
be taken by the Town, and appropriating funds and making such expenditures of its funds to aid
and cooperate with the Authority in undertaking the Urban Renewal Project and carrying out the
Plan; and
WHEREAS, the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2013 in the original aggregate principal amount of $6,825,000, and presently
outstanding in the aggregate principal amount of $4,560,000 (the “2013 Bonds”), for the purpose
of financing the acquisition, construction and equipping of the Urban Renewal Project and
refinancing a loan by and between the Authority and Vectra Bank dated May 28, 2009 (the
“2009 Loan”); and
ATTACHMENT B
2
WHEREAS, in connection with the issuance of the 2013 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2013 Cooperation
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, pursuant to Resolution No. 16-04, Series of 2016 of the Authority,
the (“2017 Bond Resolution”), the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2017, in the original aggregate principal amount of $3,000,000 (the “2017 Bonds”)
for the purpose of financing the acquisition, construction and equipping of the project described
in the 2017 Bond Resolution and the Plan; and
WHEREAS, in connection with the issuance of the 2017 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2017 Cooperation
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, the Authority is entering into a Loan Agreement (the “Loan
Agreement”) with [LENDER] (the “Lender”) to obtain a loan in the principal amount of not to
exceed $4,200,000 (the “Loan”) in order to finance the costs of refunding the 2013 Bonds (the
“Refunding Project”); and
WHEREAS, the Town Council of the Town (the “Council”) has adopted its
Resolution [____], Series 2020 (the “2020 Moral Obligation Resolution”) declaring its
nonbinding intent and expectation that, in each year the Note is outstanding, it will lend
additional moneys to the Authority, within the limits of available funds and revenues, by making
payments into the Loan Payment Fund to the extent there are insufficient Pledged Revenues to
make such deposits when due; and
WHEREAS, the Town Council has determined that it is in the best interest of the
Town and the Authority has determined it is in the best interest of the Authority, that the 2017
Cooperation Agreement remain in full force and effect, and that this Agreement shall be an
additional cooperation agreement among the Town and the Authority, which agreement shall
supersede and replace in its entirety the 2013 Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
Town and the Authority agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement.
2. 2013 COOPERATION AGREEMENT/ 2017 COOPERATION
AGREEMENT. This Agreement hereby supersedes and replaces in its entirety the 2013
Cooperation Agreement. The 2017 Cooperation Agreement is hereby ratified, approved and
confirmed and shall remain in full force and effect. The terms of this Agreement shall be in
addition to all the terms and provisions of the 2017 Cooperation Agreement.
ATTACHMENT B
3
3. PLEDGED PROPERTY TAX REVENUES.
(a) The Authority shall use Pledged Property Tax Revenues for
purposes described in the Loan Agreement and for any other lawful purpose, as permitted by the
Act.
(b) To the extent lawfully possible, the Town will take no action that
would have the effect of materially reducing Pledged Property Tax Revenues.
4. LOAN. (a) If the Council appropriates funds pursuant to the 2020 Moral
Obligation Resolution, such funds shall be a loan from the Town to the Authority to be repaid as
provided herein.
(b) The Town may advance to the Authority amounts to be used by the
Authority for costs incurred for its staffing, consultants, design, engineering, construction, and
other expenses in connection with the Plan and the Refunding Project, including any amounts
advanced prior to the date hereof (the “Prior Advance”). Such amounts shall be subject to
annual appropriation by the Town Council, and the Town shall not be obligated to advance any
money to the Authority pursuant to the terms hereof. If amounts are appropriated by the Town
Council, such amounts may be paid directly to the Authority by the Town or, at the request of the
Authority, paid to third-parties by the Town on behalf of the Authority. Each amount advanced
shall constitute a loan to the Authority in an amount equal to such advance, to be repaid as
provided herein.
(c) The Town hereby authorizes the Authority to utilize the services of
certain Town employees as determined by the Town to assist the Authority in work related to the
Plan and the Refunding Project. The Authority shall, upon request of the Town, reimburse the
Town for the applicable percentage of each such employees’ wages or salary and benefits, as set
forth in writing by the Town. The use of such employees by the Authority and the proportionate
cost of their services shall be deemed an advance by the Town and the obligation to pay for such
services is hereby designated a loan from the Town to the Authority to be repaid as provided
herein. The Town may, in its discretion, choose not to seek reimbursement of such costs in order
to assist the Authority with the implementation of the Plan.
(d) The Town shall retain the right to establish the employees’ wages
or salary and benefits, and the right to discharge, reassign, or hire employees to perform the
services required by the Authority. Except for the percentage of time devoted to the Authority
activities which shall be under the direction or control of the Executive Director of the Authority,
the Town retains the right to direct and control the employees. The Town, as the employer, has
the responsibility for payment of salary or wages to the employee, and for reporting,
withholding, and paying any applicable taxes with respect to the employees’ wages or salary and
payment of Town sponsored employee benefit plans and payment of unemployment
compensation insurance as may be required. The Town also retains the right to provide for the
welfare and benefit of employees through such programs as professional training. The Authority
shall not have any responsibility for the payment or reporting of remuneration paid to the Town’s
ATTACHMENT B
4
employees, all of such responsibilities being the obligation of the Town. The Town intends to
retain the right to maintain the employment relationship between the Town and its employees on
a long term, and not a temporary basis.
(e) In the event of any employment related issues with employees
assigned to work with the Authority, the Executive Director of the Authority shall report such
concerns or issues promptly to the Town Manager, who shall be responsible for addressing such
concerns.
(f) Any advances or loans made pursuant to this Agreement, including
the Prior Advances, shall be reimbursed to the Town to the extent there are Pledged Revenues
available for such purposes pursuant to the Loan Agreement. To the extent that such advances
and/or loans are not paid, the Town may, by resolution, forgive all or any portion of such
advances and/or loans at any time.
(g) Any other amounts advanced or loaned to the Authority by the
Town or payments made or debts incurred by the Town on behalf of the Authority relating to the
Plan, the Urban Renewal Project, the Loan or the Refunding Project may be designated a loan
from the Town to the Authority to be repaid as provided herein.
5. PAYMENT. (a) All amounts payable by the Authority to the Town
hereunder, including the Prior Advances, shall constitute “Permitted Subordinate Debt” for
purposes of the Loan Agreement. The Authority shall cause such amounts to be paid from and to
the extent of Pledged Revenue available for the payment of Permitted Subordinate Debt in
accordance with Section 5.11(d) of the Loan Agreement. All amounts payable by the Authority
to the Town hereunder shall be on a parity basis with all amounts payable by the Authority to the
Town under the 2017 Cooperation Agreement.
(b) Due to the benefits gained by the Town from the Urban Renewal
Project, no interest will be due on the amounts advanced or loaned to the Authority by the Town
unless the Town and the Authority agree in writing that interest shall be paid on any such loans
or advances.
6. FURTHER COOPERATION. (a) The Town shall continue to make
available such employees of the Town as may be necessary and appropriate to assist the
Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban
Renewal Law, the Plan, the Urban Renewal Project, the Loan or the Refunding Project, or any
other lawfully authorized duty or activity of the Authority.
(b) The Town agrees to assist the Authority by pursuing all
lawful procedures and remedies available to it to collect and transfer to the Authority on a timely
basis all Pledged Revenue for deposit with the Lender in accordance with the Loan Agreement.
To the extent lawfully possible, the Town will take no action that would have the effect of
reducing tax collections that constitute Pledged Revenue.
ATTACHMENT B
5
(c) The Town agrees to pay to the Authority any Pledged
Property Tax Revenues when, as and if received by the Town, but which are due and owing to
the Authority pursuant to the Urban Renewal Plan.
7. SUBORDINATION. The Authority’s obligations pursuant to this
Agreement, including the Prior Advances, are subordinate to the Authority’s obligations for the
repayment of any current or future bonded indebtedness. For purposes of this Agreement, the
term “bonded indebtedness,” “bonds” and similar terms describing the possible forms of
indebtedness include all forms of indebtedness that may be incurred by the Authority, including,
but not limited to, general obligation bonds, revenue bonds, revenue anticipation notes, tax
increment notes, tax increment bonds, and all other forms of contractual indebtedness of
whatsoever nature that is in any way secured or collateralized by revenues of the Authority, and
including the Loan.
8. GENERAL PROVISIONS. (a) Dispute Resolution. If a dispute arises
between the parties relating to this Agreement, the parties agree to submit the dispute to
mediation prior to filing litigation.
(b) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado and shall be subject to the
limitations, if any, that are applicable under the Charter or the ordinances of the Town.
(c) Separate Entities. Nothing in this Agreement shall be interpreted
in any manner as constituting the Town or its officials, representatives, consultants or employees
as the agents of the Authority, nor as constituting the Authority or its officials, representatives,
consultants or employees as agents of the Town. Each entity shall remain a separate legal entity
pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts,
obligations or liabilities of the other.
(d) Third Parties. Neither the Town nor the Authority shall be
obligated or liable under the terms of this Agreement to any person or entity not a party hereto,
other than the Lender.
(e) Modifications. No modification or change of any provision in this
Agreement shall be made, or construed to have been made, unless such modification is mutually
agreed to in writing by both parties with the prior written consent of the Lender and incorporated
as a written amendment to this Agreement. Memoranda of understanding and correspondence
shall not be construed as amendments to the Agreement.
(f) Entire Agreement. This Agreement shall represent the entire
agreement between the parties with respect to the subject matter hereof and shall supersede all
prior negotiations, representations or agreements, either written or oral, between the parties
relating to the subject matter of this Agreement and shall be independent of and have no effect
upon any other contracts.
ATTACHMENT B
6
(g) Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
(h) Notices. All notices and other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by first class mail,
postage prepaid, addressed as follows:
If to the Town:
Town of Avon, Colorado
100 Mikaela Way
P.O. Box 975
Avon, Colorado, 81620
Attention: Town Manager
If to the Authority:
Avon Urban Renewal Authority
100 Mikaela Way
P.O. Box 975
Avon, Colorado, 81620
Attention: Executive Director
The Town or the Authority may, by notice given hereunder, designate any further
or different addresses to which subsequent notices or other communications shall be sent.
(i) Termination. This Agreement may not be terminated by either
party so long as the Loan or other Additional Obligations of the Authority are outstanding. So
long as the Authority does not have any outstanding Loans or Additional Obligations, and does
not owe any amounts to the Town under this Agreement, either party may terminate this
Agreement in writing upon thirty (30) days written notice to the other party.
(j) Assignment. This Agreement shall not be assigned, in whole or in
part, by either party without the written consent of the other and of the Lender.
(k) Waiver. No waiver of a breach of any provision of this Agreement
by either party shall constitute a waiver of any other breach or of such provision. Failure of
either party to enforce at any time, or from time to time, any provision of this Agreement shall
not be construed as a waiver thereof. The remedies reserved in this Agreement shall be
cumulative and additional to any other remedies in law or in equity.
ATTACHMENT B
7
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
AVON URBAN RENEWAL TOWN OF AVON, COLORADO
AUTHORITY
By: By:
Sarah Smith Hymes, Chairman Eric Heil, Town Manager
ATTEST: ATTEST:
Eric Heil, Executive Director/Secretary Brenda Torres, Town Clerk
APPROVED AS TO LEGAL FORM APPROVED AS TO LEGAL FORM
By: By:
Paul Wisor, Authority Attorney Paul Wisor, Town Attorney
ATTACHMENT B
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Mayor Smith Hymes and Councilmembers
FROM: Paul Wisor, Town Attorney
RE: Resolution 20-09 – Sales Tax
DATE: March 23, 2020
SUMMARY: Pursuant to Section 3.08 of the Avon Municipal Code (the “AMC”), vendors in Avon are required
to collect and remit the Town’s 4.0% sales tax to the Town. Resolution 20 -09 would defer the payment of
sales taxes by vendors to the Town. Please note this memorandum is subject to update as staff is still
compiling data.
BACKGROUND In response to the spread of the COVID-19 virus throughout the community, the Town
Manager issued a Declaration of Local Disaster Emergency on March 19, 2020. Though a series of o ther
orders issued by Eagle County and the Governor via the Colorado Department of Public Health and
Environment, most Avon businesses are either closed or forced to operate at a significantly reduced capacity.
Pursuant to Chapter 3.08 of the AMC, vendors in Avon are required to collect and remit the Town’s 4.0%
sales tax to the Town. In addition, Chapter 3.08 of the AMC governs the Town’s sales tax levy, collection,
and enforcement procedures. Section 3.08.290 grants the Town Finance Director, with the approval of the
Town Manager, the authority to, among other things, prescribe reasonable rules and regulations for the
making of sales tax returns, collection of sales taxes, and for the proper administration and enforcement of
Chapter 3.08 of the Code. As such, the Finance Director may defer sales tax returns and payments to the
Town.
Resolution 20-09 would direct the Finance Director and the Town Manager to defer payment of any sales tax
collected in March and April until June 20, 2020. Sales tax payments for May will also be due on this date.
Deferral of sales tax payments to the Town will allow vendors to retain rev enue to continue to make payroll,
pay rent and address other expenses while businesses are hibernating.
As drafted, Resolution 20-09 is drafted to provide relief for businesses with a square footage of less than
11,000 in an effort to target such relief at Avon’s small businesses. Below is a list of the vendors with square
footage above 11,000 who will still be required to remit as required under the AMC:
Walmart – 187,000 sq. ft.
Home Depot – 135,000 sq. ft.
City Market – 56,000 sq. ft.
Sun & Ski – 33,000 sq. ft.
Office Depot – 20,000 sq. ft.
Pier 1 – 12,000 sq. ft.
Walgreens – 11.400 sq. ft.
These numbers do not include Westin, Sheraton Mountain Vista, Christie Lodge, Riverfront Villas. Given the
above, Council should consider whether the 11,000 square footage threshold is appropriate.
Deferral of sales tax payments is a drastic step, and there are some drawbacks to this approach. The sales
tax dollars to be provided to the Town are, in fact, tax dollars belonging to the Town and the taxpayers. These
dollars are not the vendors’ to spend. The Town is, in effect, providing an interest free loan to the vendors.
In addition, some vendors may see this gesture as hollow as many vendors will not benefit from a deferral
Page 2 of 2
on sales taxes they are unable to collect. Finally, in the event some vendors are forced to close before June
the Town will not be able to collect sales tax owed to the Town.
PROPOSED RESOLUTION: Resolution 20-09 directs the Town Financing Director and Town Manager to
defer sales tax return and sales tax payment deadlines for retailers who maintain a physical location in Avon
that is less than 11,000 square feet in size.
FINANCIAL CONSIDERATIONS: Based on last year’s actual collections, Restaurants and Bars,
Accommodations, and Sporting Goods Retail/Rental made up 47.9% of the Town’s March sales tax. Losing
all of those businesses from March 14-31 is a pro-rata total of $297,434, which is 26.30% of the March sales
tax total, but only 3.3% of last year’s annual total. The Town now has approximately 1,300 sales tax
licensees, so while it seems (and is) a huge loss to our local economy, the Town still has a very good,
diversified sales tax base for a resort town. In addition, April and May are typically the Town’s lowest sales
tax months. Over the past 5 years on average, April is 42% ($260,798) of March collections and May is 40%
($248,379) of March collections. Of course, the second half of March as well as April and much of May will
be significantly lower this year.
RECOMMENDATION: Staff recommends approval of Resolution 20-09.
PROPOSED MOTION: “I move to approve Resolution 20-09, thereby directing the Town Financing Director
and Town Manager to defer sales tax return and sales tax payment deadlines for retailers who maintain a
physical location in Avon that is less than 11,000 square feet in size.”
Thank you, Paul
ATTACHMENTS:
Exhibit A – Resolution 20-09
Resolution 20-09 Extending Sales Tax Deadlines
March 24, 2020
Page 1
RESOLUTION NO. 20-09
EXTENDING SALES TAX DEADLINES FOR CERTAIN SMALL
BUSINESSES WITHIN THE TOWN
WHEREAS, in response to the spread of the COVID-19 virus, and in line with state public
health orders, the Eagle County Department of Public Health and Environment issued an
emergency order on March 19, 2020 (the “Order”), limiting social, recreational, and business
events to 10 people or less unless exempted by the Order; and
WHEREAS, the Order is applicable and enforceable within the Town of Avon (“Town”); and
WHEREAS, as a result of the Order, many restaurants, bars, retailers, and other small
businesses within the Town cannot operate or will have limited operations until the Order is lifted;
and
WHEREAS, the Order will impact the generation of revenue by affected businesses and,
relatedly, sales tax owed to the Town; and
WHEREAS, Town Council finds the Order will have a disproportionate impact on small
business within Avon, which impact may threaten the viability of such businesses; and
WHEREAS, on March 19, 2020, the Town issued a Local Disaster Emergency related to the
spread of the COVID-19 virus; and
WHEREAS, Chapter 3.08 of the Town of Avon Municipal Code (“Code”) governs the levy
and enforcement of sales tax within the Town; and
WHEREAS, Section 3.08.290 of the Code grants the Town Finance Director, with the
approval of the Town Manager, the authority to, among other things, prescribe reasonable rules
and regulations in conformity with Chapter 3.08 of the Code for the making of sales tax returns,
for the ascertainment, assessment and collection of the sales taxes, and for the proper
administration and enforcement of Chapter 3.08; and
WHEREAS, in light of the emergency created by the spread of the COVID-19 virus and
economic impacts of the Order on small businesses within the Town, the Town Finance Director
and Town Manager desire to temporarily extend sales tax return and sales tax payment deadlines;
and
WHEREAS, upon review of the changes proposed by the Finance Director and Town
Manager, the Avon Town Council desires to approve the same as provided herein.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON as follows:
Resolution 20-09 Extending Sales Tax Deadlines
March 24, 2020
Page 2
1. Recitals. The foregoing recitals are incorporated herein as findings of the Avon
Town Council.
2. Deadline Extension. The deadline to remit Avon sales tax collected from customers
for the months of March and April, 2020, is hereby extended to June 20, 2020.
3. Sales Tax Returns to be Filed. Sales tax returns shall continue to be required to
be filed under Avon Municipal Code Section 3.08.080 by the twentieth day of each calendar
month for the sales activities of the preceding calendar month.
4. Scope of Resolution. The extensions provided for in Section 2 of this Resolution
shall apply to retailers who maintain a physical location within Town limits that is less than 11,000
square feet in size. Notwithstanding the forgoing, the extension provided for in Section 2 of this
Resolution shall not apply to retailers providing lodging services as defined in Section 3.08.010 of
the Code.
5. Finance Director Retain Discretion and Authority. The Finance Director has, and
shall continue to retain, full discretion to waive penalties and interest; establish procedures for
implementing Resolution 20-09; and address other sales tax payment or other matters as they may
arise.
6. Sales Tax Only. The deferral address in this Resolution 20-09 shall only apply to
the Town’s sales tax, and shall not be applied to the Town’s utility tax, accommodations tax, real
estate transfer tax, cigarette excise tax or any other tax or fee imposed by the Town.
7. Effective Date. This Resolution shall take effect immediately upon passage by
Town Council. Per Section 3.08.290 of the Code, the extensions provided for herein may be further
extended by the Finance Director upon approval from the Town Manager.
ADOPTED MARCH 24, 2020 by the AVON TOWN COUNCIL
By:_______________________________ Attest:___________________________
Sarah Smith-Hymes, Mayor Brenda Torres, Town Clerk
970.748.4004 eric@avon.org
TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager
RE: Additional Council Meetings
DATE: March 25, 2020
SUMMARY: I would like to discuss scheduling additional Council meetings. The COVID-19 pandemic has
raised many new issues concerning public health, impact to local businesses, impacts to Town’s budget,
impact to Town’s operations, and special needs of the Avon community. All Council member have clearly
expressed concern and interest as well as suggestions for how the Avon Town government can best serve
the Avon community at this time. It would the most efficient and productive to conduct additional meetings,
work sessions and opportunities for community input.
We understand that HighFive can broadcast meetings on the regular Town Council meeting nights and on
Thursdays. All additional meetings would be scheduled as webinar meetings.
Suggested meeting times are as follows:
Thursday, April 2, 2020 at 5:00 pm – Scheduled as a Finance Committee meeting. All Council can be
invited.
Thursday, April 9, 2020 at 5:00 pm
Tuesday, April 14, 2020 at 5:00 pm
Thursday, April 23, 2020 at 5:00 pm
Tuesday, April 28, 2020 at 5:00 pm
Additional meetings in May can be considered in mid-April.
Potential topics include:
• Opportunity for General Public Input and Q&A
• Discussion of Community Services and Community Needs
• Review of Town Budget
• Review of Federal and State Resources
• Review of Resources for Avon Businesses
• Need and Methods for Community Survey or Input
• Preliminary Discussion of Avon Economic Recovery
• Long-term Outlook for COVID-19 Impacts
Thank you, Eric
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 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 4:01 p.m. A roll call was taken, and Council members
present were Amy Phillips, Tamra Underwood, and Jennie Fancher. Council members Jake Wolf, Chico Thuon,
and Scott Prince were absent. Also present were Town Attorney Paul Wisor, Police Chief Greg Daly, Cultural
Arts & Special Events Manager Danita Dempsey, Planning Director Matt Pielsticker, Building Official Derek
Place, HR & Risk Management Director Lance J. Richards, Finance Manager Amy Greer, Executive Assistant to
the Town Manager Ineke de Jong, Town Manager Eric Heil, General Government Intern Charise Bishop, and
Town Clerk Brenda Torres.
PRESENTATION: COMMUNITY SURVEY
Video Start Time: 00:00:00 Part One
Communications and Marketing Manager Liz Wood and Town Manager Eric Heil outlined their plans for the
community survey to Council. This year there will be three surveys: one for residents, one for businesses, and
another for Wildridge residents. Staff would also be providing weekly incentives to increase survey
participation. Council wanted to make sure that all residents are given the opportunity to contribute to the
survey and there was outreach to the renter population. The intention is to have two Councilmembers assist
with the survey, but they would like a public meeting to discuss survey questions.
Councilor Thuon arrived at 4:30 p.m. and Councilor Prince arrived at 4:45 p.m.
2. APPROVAL OF AGENDA
Video Start Time: 00:27:38 Part One
Councilor Underwood would like Agenda Items 5.4 and 5.5 moved before 5.3, the First Reading of Ordinance
20-04, Refinancing the Town’s Series 2010 Certificates of Participation (COPs).
3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS
Video Start Time: 00:28:44 Part One
No conflicts of interest were disclosed.
4. PUBLIC COMMENT
Video Start Time: 00:28:51 Part One
Michael Cacioppo was wondering about the status of plans to bring a convention center to Avon. Town
Manager Eric Heil said that he plans to issue Request for Proposals soon, and maybe hiring someone within the
next 30 days to facilitate this process.
Peter Warren, resident of Wildridge, was here to express his disappointment in Council about the planned
Wildridge community housing project. He was upset there has yet to be any outreach to the community and
was concerned that the quiet title process violates Wildwood covenants protecting open space.
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)
Video Start Time: 00:35:10 Part One
Adam Palmer, the Sustainable Communities Director for Eagle County, and Climate Action Collaborative
Project Manager, Kim Schlaepfer, presented to Council their recommendations for updating the building
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
code in Avon to be more sustainable and align with Eagle County’s climate action goals. Some of these
recommendations included making EV charging connections mandatory for new buildings, making
water fixtures more efficient, providing an area for the storage of both trash and recyclables, and
construction waste management planning.
Michael Cacioppo made a public comment wondering about electric heat breathability, the
recommended charge of $46 per metric ton of CO2 to developers who choose not to comply with these
standards, how much money has been spent on the Climate Action Collaborative so far, why code has
to be updated so often and the costs associated with those changes, and if people will be allowed to
park in Handicap spots to charge their Electric Vehicles, even if they are not disabled.
Councilor Wolf arrived at 5:24 p.m.
5.2. WORK SESSION ON THE CORONA VIRUS (CHIEF OF POLICE GREG DALY AND HR & RISK MANAGEMENT DIRECTOR LANCE J.
RICHARDS)
Video Start Time: 01:13:40 Part One
Police Chief Greg Daly presented to Council the latest information he had on COVID-19 and its impact
on the community. Currently, Eagle County is providing direction to the municipalities regarding this
pandemic. The situation is changing daily, and he is on a conference call every morning at 9:00 a.m. to
receive the latest updates. Because of HIPAA laws, there is limited actual information that the state or
the county can share with local officials.
The Police Department has formulated a plan on how to deal with infected individuals, should that
occasion arise. They are currently doing their best to obtain personal protective equipment or PPE, but
it has been a challenge because this equipment is in short supply. Eva Wilson, the Mobility Director, has
directed her team to disinfect the public buses daily.
John Curutchet, the Recreation Department Director, has increased hand sanitizer stations and said that
people are using more disinfectant wipes than usual. Chief Daly reminded people to not show up at the
Emergency Department if they are experiencing symptoms, but instead call their primary care provider.
Town Manager Eric Heil said staff plans to continue planning for the events season, as many of these
events take a lot of preparation to be successful. Moving forward, the plan is to include the ability to
reschedule in Town contracts, in the event the need to cancel occurs. Councilor Fancher said the public
can go to ECemergency.org for the most current information and Councilor Wolf said it is all our
responsibility to do our best not to spread the disease.
Michael Cacioppo commented that some hospitals in the region are doing a better job than others to
contain any suspected cases of COVID-19. He also said that local stores are out of face masks. He also
said this is not a joke and everyone needs to be smart about this.
5.3. ENGAGEMENT LETTER WITH BUTLER SNOW AS BOND COUNSEL FOR THE PROPOSED 2020 CERTIFICATES OF PARTICIPATION
BOND REFINANCING (DEE WISOR, BUTLER SNOW)
Video Start Time: 01:47:16 Part One
No comments were made. Councilor Fancher moved to approve the engagement letter with Butler Snow.
Mayor Pro Tem Phillips seconded the motion. The motion passed unanimously by a vote of 7-0.
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
5.4. ENGAGEMENT LETTER WITH PIPER SANDLER AS PRIVATE PLACEMENT AGENT FOR THE PROPOSED 2020 CERTIFICATES OF
PARTICIPATION BOND REFINANCING (JONATHAN HEROUX, PIPER SANDLER)
Video Start Time: 01:48:30 Part One
Councilor Underwood amended some of the language in Section 6 of Attachment A. Councilor Fancher
moved to approve the engagement letter with the changes requested by Councilor Underwood. Mayor
Pro Tem Phillips seconded the motion. The motion passed unanimously by a vote of 7-0.
5.5. FIRST READING OF ORDINANCE 20-04 REFINANCING THE TOWN’S SERIES 2010 CERTIFICATES OF PROPOSAL (COPS)
(FINANCE MANAGER AMY GREER)
Video Start Time: 01:51:26 Part One
Finance Manager Amy Greer summarized the Ordinance for Council. Because of the Corona Virus, the
market is at an all time low. Jonathan Heroux and Dee Wisor explained to Council they could lock in the
rates now, before Second Reading, which would result in a $633,000 savings for the Town. If for some
reason, the Ordinance did not pass on the Second Reading, then there would be a Breakage Fee. Council
directed Staff to move forward with locking in the current rate without having to return to Council for
direction, providing the rates do not fall below $512,000 savings. Councilor Prince moved to approve
the First Reading of Ordinance 20-04, with additional direction for staff to lock in rates and Mayor Pro
Tem Phillips seconded the motion. The motion passed unanimously by a vote of 7-0.
5.6. WORK SESSION: DEED RESTRICTED PURCHASE PROGRAM (CONTINUED) (TOWN ATTORNEY PAUL WISOR)
Video Start Time: 00:00:00 Part Two
Town Attorney Paul Wisor and Town Manager Eric Heil consulted Council about the progress made
toward creating the Avon In-Deed Program. Councilor Underwood does not believe it is necessary to
have a down payment assistance program financed and managed by Avon when there is already one
for Eagle County residents. Councilor Prince thinks that offering 15-18% of the assessed value of homes
is too high. He also would like to not use all the money in the housing fund in case another opportunity
arises, such as a public-private partnership to build affordable housing. Councilor Thuon echoed the
concerns of Council that there are limited funds available for this program and other employee housing
initiatives. Town Manager Eric Heil said there would be a work session on how to generate revenue in
the future. Many Council members agreed that this program should only be available to new purchasers
and not for existing homeowners. Councilor Wolf thinks that crafting policy is difficult and bound to be
imperfect. He thinks that there could be circumstances where renting short-term could be warranted
and that should be considered when drafting this plan. Mayor Smith-Hymes believes it is important to
stipulate that this deed-restriction is reserved for Eagle County employees. Both Mayor Pro Tem Phillips
and Councilor Fancher believe there should be a cap on the amount offered.
5.7. PUBLIC HEARING: SECOND READING ORDINANCE 20-03, OPTIONAL PREMISE LICENSE FOR LIQUOR LICENSE- LOCAL
OPTION (CASE MANAGER, DANITA DEMPSEY)
Video Start Time: 00:49:15 Part Two
No comments were made. Councilor Fancher moved to approve Ordinance 20-03 and Mayor Pro Tem
Phillips seconded the motion. The motion passed unanimously by a vote of 5-0. Councilors Underwood
and Prince were absent for the vote.
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
5.8. RESOLUTION 20-03, DESIGNATING NOTTINGHAM PARK AS THE VENUE FOR THE OPTIONAL PREMISES LIQUOR LICENSE-
LOCAL OPTION (CASE MANAGER, DANITA DEMPSEY)
Video Start Time: 00:51:50 Part Two
CASE Manager Danita Dempsey explained that for this Optional Premises Liquor License, there must be
a designated location for storage and containment of alcohol. This Resolution would designate that
place as Nottingham Park. Councilor Wolf moved to approve the Resolution and Councilor Fancher
seconded the motion. The motion passed unanimously by a vote of 6-0. Councilor Prince was absent for
the vote.
5.9. RESOLUTION 20-04 DESIGNATING THE EVENT MANAGER FOR THE TOWN’S OPTIONAL PREMISES LICENSE (CASE
M ANAGER, D ANITA D EMPSEY )
Video Start Time: 00:53:15 Part Two
CASE Manager Danita Dempsey explained to the Council that this Resolution was designating, both her
and Special Events Coordinator Mikaela Liewer, the event managers responsible for alcohol sales and
the operation of the Optional Premises Liquor License. Councilor Wolf moved to approve the Resolution
and Councilor Underwood seconded the motion. The motion passed unanimously by a vote of 7-0.
5.10. RESOLUTION 20-05 APPROVING THE EXPENDITURE OF COMMUNITY ENHANCEMENT FUNDS (CASE MANAGER DANITA
DEMPSEY)
Video Start Time: 00:55:40 Part Two
Councilor Underwood commented she would like to use these funds in the future for undergrounding
the power lines near Old Town Hall. Town Manager Eric Heil confirmed that these are funds the
Town receives every year, so that is a project that could be completed in 2021. Councilor Wolf moved
to approve Resolution 20-05 and Mayor Pro Tem Phillips seconded the motion. The motion passed
unanimously by a vote of 7-0.
5.11. REQUEST FOR EXTENSION OF APPLICATION APPROVAL- LOT B, AVON CENTER AT BEAVER CREEK SUBDIVISION (PLANNING
DIRECTOR, MATT PIELSTICKER)
Video Start Time: 01:02:22 Part Two
Planning Director Matt Pielsticker introduced the new owners and development team for Lot B. They
explained they needed more time to make sure they planned the best project possible. Councilor
Fancher moved to approve extension and Councilor Underwood seconded the motion. The motion
passed unanimously by a vote of 7-0.
5.12. LED SIGN CONTRACT (TOWN ENGINEER JUSTIN HILDRETH)
Video Start Time: 01:23:17 Part Two
Town Manager Justin Hildreth and Planning Director Matt Pielsticker presented the LED Sign concept to
Council. They also presented the Planning and Zoning Commission’s opinions to Council. Overall, the
Planning and Zoning Commission did not support the idea of LED Signs. Councilor Prince felt with the
current economic uncertainty, it is not the time to spend $75,000 on signs. He feels like it is an
unnecessary expense. Councilors Wolf and Fancher agreed it would be wise to be cautious about
spending money. Councilor Prince moved to table the LED Sign Contract and Councilor Underwood
seconded the motion. The motion passed by a vote of 5-2.
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
5.13. NOTICE OF AWARD FOR EAGLEBEND PAVING (TOWN ENGINEER JUSTIN HILDRETH)
Video Start Time: 01:41:25 Part Two
Councilor Fancher mentioned how some people are parking on the north side of Eaglebend. Town
Engineer Justin Hildreth offered to put “No Parking” signs if that is something Council would be
interested in. Councilor Prince was wondering about the condition of the road. Town Engineer Hildreth
confirmed the road was cracking and had a lot of potholes. Councilor Underwood moved to approve
the award for paving Eaglebend and Mayor Pro Tem Phillips seconded the motion. The motion passed
unanimously by a vote of 7-0.
5.14. NOTICE OF AWARD FOR YODER AVENUE PAVING (TOWN ENGINEER JUSTIN HILDRETH)
Video Start Time: 01:48:45 Part Two
Councilor Fancher noticed that this award came significantly under budget. Town Engineer Justin
Hildreth stated that was because originally the plan was to also include Fawcett Road. They had decided
they could wait a few more years to address Fawcett Road. Councilor Prince was wonderin g if it was
possible to wait another year on the repair and Town Engineer Justin Hildreth said they could patch up
a lot of potholes, but it really needed to be repaved. Councilor Fancher moved to approve the award
for the paving of Yoder Avenue and Mayor Pro Tem Phillips seconded the motion. The motion passed
by a vote of 6-0.
5.15. RECORD OF DECISION FOR ERWSD 1041 PERMIT (PLANNING DIRECTOR, MATT PIELSTICKER)
Video Start Time: 01:51:50 Part Two
Councilor Underwood requested to amend some of the language in section six and nine. Councilor
Fancher moved to approve the record of decision with additions suggested by Councilor Underwood
and Mayor Pro Tem Phillips seconded the motion. The motion passed unanimously by a vote of 7-0.
5.16. APPROVAL OF MINUTES FROM FEBRUARY 25, 2020 REGULAR COUNCIL MEETING (TOWN CLERK BRENDA TORRES)
Video Start Time: 01:54:30 Part Two
Councilor Fancher moved to approve the minutes from February 25, 2020 and Mayor Pro Tem Phillips
seconded the motion. The motion passed by a vote of 6-1.
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 C OMMENTS & MEETING UPDATES
Video Start Time: 01:55:02 Part Two
Councilor Fancher explained that while she heard Peter Warren’s concerns, she did not think that Council was
trying to do anything underhanded. Council had just begun the process of investigating housing on that plot
of land. This spurred a lot of discussion about having a meeting for Wildridge residents. Town Manager Eric
Heil said Council could hold a work session about this on March 24th.
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
Councilor Underwood stated that the Town does not have authority to enforce the Wildwood covenants and
the residents should form an HOA to do so. She also said that if there is a Wildridge meeting, it should be
conducted in Council Chambers because there already is audio-video equipment.
Mayor Pro Tem Phillips thinks we should have a plan solidified for the Wildwood project before we hold a
meeting because then Council and Staff seem unprepared. She also agrees a neighborhood meeting should
be filmed.
Councilor Thuon asked about the municipal code regarding pedestrian safety. He would like to know what the
Town could do to make it safer to cross the road throughout town. He also mentioned there was a green RV
parked across from the post office all weekend and would like to ask that person to park in the Old Town Hall
parking lot. He mentioned the paint wearing off of the curbs and wondered if rumble strips could be a solution.
He also wondered it we could reinstall the stop sign on Old Trail Road.
Councilor Prince commented that the Town needed to be more conservative about spending while COVID-19
is creating uncertain economic conditions. He also did not think people would be enthusiastic about
completing the survey at this time.
Councilor Wolf reiterated that COVID-19 was very serious and many events are being cancelled all over the
country because of it. He urged everyone to follow medical advice and take responsibility to not spread the
virus.
Mayor Smith Hymes attended a Water Law in a Nutshell workshop and highly encourages anyone to attend
in the future if they can.
8. A DJOURN
There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular
meeting. The time was 9:20 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.
AVON REGULAR MEETING MINUTES
TUESDAY MARCH 10, 2020
AVON TOWN HALL, 100 MIKAELA WAY, AVON, CO
RESPECTFULLY SUBMITTED:
Charise Bishop, General Government
Intern
APPROVED:
Sarah Smith Hymes ___________________________________
Amy Phillips
Jake Wolf
Chico Thuon
Jennie Fancher
Scott Prince
Tamra Underwood
970-300-4373 pwisor@garfieldhecht.com
TO: Honorable Chairperson Smith Hymes and URA Commissioners FROM: Paul Wisor, Authority Attorney
RE: Resolution 20-03 – Electronic Participation Policy During
Local Emergency Disaster
DATE: March 20, 2020
SUMMARY: In response to the spread of the COVID-19 virus throughout the community, the Avon Town
Manager issued a Declaration of Local Disaster Emergency on March 19, 2020. Given this local emergency
disaster in particular prevents in-person meetings, it is necessary to adopt procedures by which the Avon
Urban Renewal Authority (the “Authority”) may meet electronically in order to assure the Authority continues
to function.
BACKGROUND: Under Colorado statute, the Authority can meet electronically to conduct meetings.
However, it is a best practice to specifically adopt an electronic meeting policy. The purpose of this Electronic
Participation Policy (“Policy”) is to specify the circumstances and means under which the Authority shall
conduct regular and special meetings by telephone or other electronic means of participation, such as video-
conferencing that is clear, uninterrupted and allows two way communication for the participating members.
Electronic participation is permitted where 1) a local disaster emergency has been declared; 2) a meeting in-
person is not prudent; 3) all members of the Authority and one staff member can communicate; 4) members
of the public can hear the proceedings; 5) votes are conducted by roll call; 6) minutes are taken and recorded;
notice of the fact the meeting is being conducted electronically is provided to the public.
The Policy also permits the Authority to enter into executive session, provided the session is recorded
electronically in accordance with state statutes.
PROPOSED RESOLUTION: Resolution 20-03 adopts the Electronic Participation Policy.
FINANCIAL CONSIDERATIONS: The cost to the Authority is a minimal subscription to an online video
conferencing service.
RECOMMENDATION: Staff recommends approval of Resolution 20-03.
PROPOSED MOTION: “I move to approve Resolution 20-03, thereby extending thereby adopting an
Electronic Participation Policy During Local Emergency Disaster.”
Thank you, Paul
ATTACHMENTS:
Exhibit A – Resolution 20-03
Resolution 20-03 Electronic Participation Policy During a Local Disaster Emergency
March 24, 2020
Page 1 of 1
AVON URBAN RENEWAL AUTHORITY
TOWN OF AVON, COLORADO
RESOLUTION NO 20-03
ADOPTING AND ELECTRONIC PARTICIPATION POLICY FOR
AUTHORITY MEETINGS DURING A LOCAL DISASTER
EMERGENCY
WHEREAS, the Avon Urban Renewal Authority (the “Authority”) is a public body corporate
and politic, and has been duly created, organized, established and authorized by the Town of Avon,
Colorado (the “Town”) to transact business and exercise its powers as an urban renewal authority,
all under and pursuant to the Colorado Urban Renewal Law, constituting Part 1 of Article 25 of
Title 31, Colorado Revised Statutes, as amended (the “Act”); and
WHEREAS, the Authority is a “local public body” as defined under Colorado Open Meetings
Law, and therefore the Authority’s meetings must be open to the public and its meetings may not
be conducted in secret; and
WHEREAS, the Town of Avon issued and Declaration of Local Disaster Emergency on
March 19, 2020 in response to the spread of the COVID-19 virus; and
WHEREAS, the spread of the COVID-19 virus requires individuals to practice self-distancing
and otherwise limiting social interaction such that in-person attendance at Authority meetings by
Authority members, staff and members of the public is rendered impracticable; and
WHEREAS, in order to continue to conduct Authority business during the current local
disaster emergency requires attendance be accomplished through electronic participation; and
WHEREAS, the Authority desires to adopt and Electronic Participation Policy for Authority
Meetings During a Local Disaster Emergency (the “Policy”); and
WHEREAS, the Authority finds that adoption of the policy will promote meeting efficiency
as well as promote the understanding and transparency of Council meeting procedures for the
general public and protect the health, safety and wellness of the Avon community.
NOW, THEREFORE BE IT RESOLVED BY THE AVON URBAN RENEWAL
AUTHORITY, that the Electronic Participation Policy for Authority Meetings During a Local
Disaster Emergency attached hereto as Exhibit A are hereby adopted.
ADOPTED MARCH 24, 2020 by the AVON URBAN RENEWAL AUTHORITY
By:_______________________________ Attest:___________________________
Sarah Smith-Hymes, Chairman Eric Heil, Executive Director
EXHIBIT A
ELECTRONIC PARTICIPATION POLICY
AT AVON URBAN RENEWAL AUTHORITY MEETINGS DURING A LOCAL
DISASTER EMERGENCY
I. Purpose.
The purpose of this Electronic Participation Policy (“Policy”) is to specify the
circumstances and means under which the Avon Urban Renewal Authority (“Authority”) shall
conduct regular and special meetings by telephone or other electronic means of participation, such
as video-conferencing that is clear, uninterrupted and allows two way communication for the
participating members ("Electronic Participation"). Electronic Participation has inherent
limitations because Electronic Participation effectively precludes a member of the Authority from
contemporaneously observing documentary information presented during meetings; from fully
evaluating a speaker's non-verbal language in assessing veracity or credibility; and from observing
non-verbal explanations during a speaker's presentation or testimony. The Authority finds that
these limitations, inherent in Electronic Participation, may produce inefficiencies in meetings,
increase the expense of meetings, and alter the decision-making process. As such, the Authority
shall only utilize the policies contained herein upon the adoption by the Town of Avon of a
resolution declaring, or the Avon Town Manager declaring, a local disaster emergency pursuant
to §24-33.5-709, C.R.S.
II. Statement of General Policy.
The Authority may conduct a regular or special meeting of the Authority by electronic
means only in accordance with this Policy.
A. Emergency Situations.
In the event a quorum is unable to meet at the day, hour, and place fixed by the
rules and procedures of the Authority because meeting in-person is not practical or prudent
due to an local disaster emergency affecting the Town, meetings may be conducted by
telephone, electronically, or by other means of communication so as to provide maximum
practical notice. Meetings may be held by telephone, electronically, or by other means of
communication if all of the following conditions are met:
1. A local disaster emergency has been declared pursuant to §24-33.5-
709, C.R.S.; and
2. The Avon Town Manager or the Avon Town Council determines
that meeting in person is not practical or prudent, because of matters related to the
declaration of local disaster emergency affecting the Town; and
3. All members of the Authority, and at least one Town staff member
can hear one another or otherwise communicate with one another and can hear or
read all discussion and testimony in a manner designed to provide maximum notice
and participation; and
4. Members of the public can hear the Authority’s proceedings and are
afforded opportunities to participate in public comment; and
5. All votes are conducted by roll call; and
6. Minutes of the meeting are taken and promptly recorded, and such
records are open to public inspection; and
7. To the extent possible, full and timely notice is given to the public
setting forth the time of the meeting, the fact that some members of the Authority
may participate by telephone, and the right of the public to monitor the meeting
from another location.
III. Arranging for Electronic Participation.
A. The Town Manager shall contact Council members at least twenty-four hours in
advance of a regular or schedule meeting to provide notice of a meeting conducted under this
policy.
B. The Town shall initiate the Electronic Participation not more than ten (10) minutes
prior to the scheduled time of the meeting. Upon disconnection during a meeting, the Town Clerk
shall make at least three attempts to re-initiate the connection.
IV. Executive Sessions.
In the event that the Authority holds an executive session pursuant to §24-6-402, C.R.S.,
participants shall be authorized to attend via Electronic Participation. Any executive session
conducted under this policy shall be recorded electronically as provided for by statute.
V. Applicability of Policy.
This Policy shall apply to all regular and special meetings (including work sessions) of the
Authority.
VI. Reasonable Accommodations.
The Authority shall provide reasonable accommodation and shall waive or modify
provisions of this Policy to provide handicapped members of the Avon community full and equal
access to applicable meetings.
(970) 748-4055 swright@avon.org
TO: Honorable Chairperson Sarah Smith Hymes and URA Commissioners
FROM: Scott Wright, Authority Treasurer
RE: Resolution No. 20-01 Designating Posting Locations
DATE: March 24, 2020
SUMMARY: C.R.S. Section 24-6-402(2)(c) requires that the Authority’s posting places must be designated at the
first regular meeting of the calendar year as part of Colorado’s “Open Meetings Law”. Resolution 20-01 is presented to
satisfy this requirement whereby it identifies four public locations used for posting notices of the Avon Urban Renewal
Authority’s public meetings in addition to the Town of Avon’s website.
PROPOSED MOTION: " I move to approve Resolution 19-01, A RESOLUTION DESIGNATING LOCATIONS
FOR POSTING THE NOTICES OF PUBLIC MEETINGS."
Thank you, Scott
ATTACHMENTS:
Attachment A - Resolution No. 20-01
AVON URBAN RENEWAL AUTHORITY
RESOLUTION 20-01
A RESOLUTION TO DESIGNATE A PUBLIC PLACE WITHIN THE BOUNDARIES
OF THE AUTHORITY WHERE NOTICES OF MEETINGS OF THE AUTHORITY’S
BOARD OF COMMISSIONERS SHALL BE POSTED
WHEREAS, the Avon Urban Renewal Authority (the “Authority”) is a duly organized
body corporate and politic under and by virtue of the laws of the State of Colorado including the
Urban Renewal Law, constituting Part 1 of Article 25 of Title 31, Colorado Revised Statutes
(“C.R.S.”); and
WHEREAS, the Board of Commissioners of the Authority (the “Board”) is required by
Section 24-6-402(2)(c), C.R.S., to designate the public place or places for posting notice of its
meetings annually at the Board’s first regular meeting of each calendar year; and
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COMMISSIONERS OF
THE AVON URBAN RENEWAL AUTHORITY:
Notice of meetings of the Board required pursuant to Section 24-6-401, et seq., C.R.S.
shall be posted within the boundaries of the Authority at least 24 hours prior to each meeting at
the following locations:
Avon Town Hall, 100 Mikaela Way
Avon Recreation Center, 90 Lake Street
Avon Public Library, 200 Benchmark Road
Avon Elementary School, 850 W Beaver Creek Boulevard
Town of Avon Website - www.avon.org
ADOPTED this 24th day of March, 2020.
AVON URBAN RENEWAL AUTHORITY
(SEAL)
Sarah Smith Hymes, Chairman
ATTEST:
Eric Heil, Executive Director
CERTIFIED BY:
Brenda Torres, Authority Clerk
ATTACHMENT A
(970) 748-4055 swright@avon.org
TO: Honorable Chairperson Sarah Smith Hymes and URA Commissioners FROM: Scott Wright, Auhtority Treasurer
RE: Engagement Letter with Butler Snow as Bond Counsel
DATE: March 24, 2020
SUMMARY: A proposed engagement letter with Butler Snow as bond counsel for the proposed
refinancing of the 2013 Avon Urban Renewal Authority Tax Increment Revenue Bonds (2013 URA Bonds)
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 2013 URA Bonds"
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
March 12, 2020
Avon Urban Renewal Authority
PO Box 975
Avon, CO 81620
Attn: Scott Wright
RE: Proposed Refinancing of 2013 Bonds
Dear Members of the Board of Commissioners:
We are pleased to confirm our engagement as bond counsel to the Avon Urban
Renewal Authority (the “Authority”). 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 Authority in connection with a loan agreement and
related promissory note (collectively, the “Obligations”) for the purpose of refinancing the
Authority’s outstanding 2013 bonds. 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 Authority.
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 or
financial obligations like the Obligations. As your bond counsel, we will: examine
applicable law; consult with the parties to the transaction prior to the execution of the
ATTACHMENT A
Avon Urban Renewal Authority
March 12, 2020
Page 2
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 Authority 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 Authority
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
Authority’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 Authority 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 Authority
In performing our services, the Authority will be our client and an attorney-
client relationship will exist between us. We will represent the interests of the Authority
rather than the Authority Board or its individual members. We will work closely with the
Authority Attorney and will rely on the opinion of the Authority 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
Avon Urban Renewal Authority
March 12, 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 Authority 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 Authority 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 Authority. Your execution of this letter will signify the Authority’s
prospective consent to such representations in matters unrelated to the Authority 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 Authority 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 Authority 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
Avon Urban Renewal Authority
March 12, 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 Authority 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
Avon Urban Renewal Authority
March 12, 2020
Page 5
ACCEPTED AND APPROVED:
AVON URBAN RENEWAL AUTHORITY
By: ____________________________________
Title: ___________________________________
Date: __________________________________
DPW/jw
Enclosures
ATTACHMENT A
Avon Urban Renewal Authority
March 12, 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
Avon Urban Renewal Authority
March 12, 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 Chairperson Sarah Smith Hymes and URA Commissioners FROM: Scott Wright, Authority Treasurer
RE: Engagement Letter with Piper Sandler as Placement Agent
DATE: March 24, 2020
SUMMARY: A proposed engagement letter with Piper Sandler as placement agent for the proposed
refinancing of the 2013 Avon Urban Renewal Authority Tax Increment Revenue Bonds (2013 Bonds) 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 2013 Avon Urban Renewal Authority Tax Increment Revenue Bonds "
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.
Eric Heil, Executive Director March 16, 2020
Board of Commissioners of the
Avon Urban Renewal Authority
100 Mikaela Way
PO Box 975
Avon, CO 81620
Re: Placement Agent Engagement Letter
Avon Urban Renewal Authority, Tax Increment Revenue Refunding Loan, Series 2020 (the
“Securities”)
Dear Eric,
This letter confirms the agreement (the “Agreement”) between Piper Sandler & Co. (“Piper Sandler” or
“we” or “us”) and the Avon Urban Renewal Authority (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. We 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.
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
Page 3
respect to the transaction contemplated hereby expressly are set forth in this agreement and (iv)
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; provided, however, we shall not
be entitled to the fee or any expense reimbursement if 1) we terminate without cause or 2) you
terminate with cause. If either party determines that the other has breached this Agreement, the
non-breaching party will notify the party in breach of that fact in writing, and the party in breach will
be afforded five (5) business days to cure the breach.
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 Denver, 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.
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
Eric Heil, Executive Director
Board of Commissioners of the
Avon Urban Renewal Authority
Date: ___________________________
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)0F
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).
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
Page 2
increases in 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
Page 3
debt service payment is required to be paid regardless of how your general fund is impacted by
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
Page 4
adversely affected. Further, your ability to issue other tax-exempt bonds also may be limited.
(970) 748-4055 swright@avon.org
TO: Honorable Chairperson Sarah Smith Hymes and URA Commissioners FROM: Scott Wright, Authority Treasurer
RE: Resolution No. 20-02, 2013 URA Bond Refinancing
DATE: March 24, 2020
SUMMARY:
Avon URA Resolution No. 20-XX, authorizes the Avon Urban Renewal Authority and its officers to enter
into a loan agreement for the purpose of refinancing the Authority’s Series 2013 Tax Increment Revenue
Bonds (2013 Bonds). The refinancing is expected to be a private placement loan. Proposals are due from
financial institutions by March 30 with closing on April 22.
The resolution establishes certain parameters and restrictions stated below:
1. the Loan shall mature not later than December 1, 2028;
2. the principal amount of the Loan shall not exceed $4,700,000;
3. the initial interest rate on the Loan shall not exceed 3.00%;
4. the maximum annual repayment amount shall not exceed $600,000 and the total repayment cost
shall not exceed $5,400,000; and,
5. the Loan is (i) not subject to prepayment prior to maturity at the option of the Town or (ii) subject to
prepayment prior to maturity at a price equal to the principal amount so prepaid plus accrued interest
to the redemption date, with a prepayment premium not to exceed 1% at such time as provided in
the Sale Certificate.
The 2013 Bonds were originally issued to refinance outstanding obligations of the Authority and to finance
a portion of the Avon Mall improvements. The original amount of the 2013 bonds was $6,825,000 with an
interest rate of 3.52%.
Using an assumed interest rate of 1.5% given the current market, it is estimated that the refunding issue
would be approximately $4,504,000. The maturity date of December 1, 2028 would not change. Present
value savings is estimated at $265,000 or 5.8% of the refunded bonds.
Bond Counsel Dee Wisor and Jonathan Heroux with Piper Sandler will be available by phone to review the
transaction with the Board and answer any questions.
PROPOSED MOTION: "I move to approve RESOLUTION NO. 20-02, a RESOLUTION OF THE BOARD
OF COMMISSIONERS OF THE AVON URBAN RENEWAL AUTHORITY APPROVING AND DIRECTING
THE EXECUTION AND DELIVERY OF A LOAN AGREEMENT FOR A LOAN FOR THE PURPOSE OF
REFINANCING THE AUTHORITY’S TAX INCREMENT REVENUE BOND, SERIES 2013 AND
APPROVING ACTIONS AND DOCUMENTS IN CONNECTION THEREWITH.”
Thank you, Scott
ATTACHMENTS:
Page 2 of 2
Attachment A – Resolution No. 20-02
Attachment B – Loan Agreement
Attachment C – 2020 Cooperation Agreement
Attachment D – Term sheet
Attachment E – Timetable
AVON URBAN RENEWAL AUTHORITY
TOWN OF AVON, COLORADO
RESOLUTION NO 20-02
APPROVING AND DIRECTING THE EXECUTION AND
DELIVERY OF A LOAN AGREEMENT FOR A LOAN FOR
THE PURPOSE OF REFINANCING THE AUTHORITY’S TAX
INCREMENT REVENUE BOND, SERIES 2013 AND
APPROVING ACTIONS AND DOCUMENTS
WHEREAS, the Avon Urban Renewal Authority (the “Authority”) is a public
body corporate and politic, and has been duly created, organized, established and authorized by
the Town of Avon, Colorado (the “Town”) to transact business and exercise its powers as an
urban renewal authority, all under and pursuant to the Colorado Urban Renewal Law,
constituting Part 1 of Article 25 of Title 31, Colorado Revised Statutes, as amended (the “Act”);
and
WHEREAS, pursuant to Section 31-25-105 of the Act, the Authority has the
power to borrow money and to apply for and accept advances, loans, grants and contributions
from any source for any of the purposes of the Act and to give such security as may be required;
and
WHEREAS, pursuant to Section 31-25-109 of the Act, the Authority has the
power to issue refunding or other bonds (defined by the Act to mean any bonds, notes, interim
certificates or receipts, temporary bonds, certificates of indebtedness, debentures or other
obligations) from time to time in its discretion for the payment, retirement, renewal or extension
of any bonds previously issued by it under the Act; and
WHEREAS, the Authority is authorized to issue bonds without an election; and
WHEREAS, the Authority has previously issued its Avon Urban Renewal
Authority, Tax Increment Revenue Bonds, Series 2013 in the aggregate principal amount of
$6,825,000, which Series 2013 Bonds are currently outstanding in the aggregate principal
amount of $4,560,000 (the “2013 Bonds”); and
WHEREAS, the Authority has previously issued its Avon Urban Renewal
Authority, Tax Increment Revenue Bonds, Series 2017 in the aggregate principal amount of
$3,000,000, which Series 2017 Bonds are currently outstanding in the aggregate principal
amount of $2,493,285.53 (the “2017 Bonds”); and
WHEREAS, an urban renewal plan, known as the “Town Center West Area
Urban Renewal Plan” (the “Urban Renewal Plan”), was duly and regularly approved by the
Town Council of the Town for an urban renewal project under the Act; and
ATTACHMENT A
2
WHEREAS, all applicable requirements of the Act and other provisions of law
for and precedent to the adoption and approval by the Town of the Urban Renewal Plan have
been duly complied with; and
WHEREAS, the Authority has determined that it is in the best interests of the
Authority and the citizens and taxpayers of the Town that the 2013 Bonds be refunded (the
“Refunding Project”); and
WHEREAS, the Authority intends to enter into a Loan Agreement with a private
purchaser hereafter determined by the Authority and so named in the Sale Certificate (the
“Lender”) to obtain a loan in the principal amount of not to exceed $4,700,000 (the “Loan”) in
order to finance the costs of the Refunding Project; and
WHEREAS, the proceeds derived from the Loan, after payment of the costs of
issuance properly allocable thereto, along with such other legally available moneys of the
Authority as may be necessary, shall be used to pay and cancel the 2013 Bonds on the date of
funding of the Loan, as more particularly hereinafter set forth; and
WHEREAS, the Authority specifically elects to apply all of the provisions of
Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Act”) to the Loan; and
WHEREAS, the Loan shall be a limited obligation of the Authority payable solely
from the Pledged Revenue (as defined in the Loan Agreement); and
WHEREAS, the Board desires to delegate to the Executive Director of the
Authority the power to determine the terms of the Loan consistent with the provisions of this
Resolution; and
WHEREAS, there are on file with the Secretary of the Board: (a) the proposed
form of the Loan Agreement; (b) the proposed form of the promissory note, in the form attached
to the Loan Agreement (the “Note”), to be executed by the Authority and delivered to the Lender
evidencing the Authority’s obligations to pay the Loan; and (c) the proposed form of the 2020
Cooperation Agreement between the Authority and the Town (the “Cooperation Agreement”).
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
COMMISSIONERS OF THE AVON URBAN RENEWAL AUTHORITY, COLORADO,
THAT:
Section 1. All actions (not inconsistent with the provisions of this Resolution)
heretofore taken by the Board and the officers of the Authority directed toward the Refunding
Project and the entering into of the Loan Agreement, the Note and the Cooperation Agreement
hereby are ratified, approved and confirmed.
Section 2. The forms, terms and provisions of the Loan Agreement, the Note
and the Cooperation Agreement (collectively, the “Financing Documents”) hereby are authorized
and approved, and the Authority shall enter into the Financing Documents in the respective
forms as are on file with the Secretary of the Board, but with such changes therein as shall be
consistent with this Resolution and as the Chairman of the Board or the Executive Director of the
ATTACHMENT A
3
Authority shall approve, the execution thereof being deemed conclusive approval of any such
changes. The Chairman of the Board is hereby authorized and directed to execute and deliver
the Financing Documents, for and on behalf of the Authority. The Executive Director/Secretary
of the Board is hereby authorized and directed to affix the seal of the Authority to, and to attest
those Financing Documents requiring the attestation of the Secretary.
Section 3. The officers of the Authority shall take all action which they deem
necessary or reasonably required in conformity with the Act to enter into the Financing
Documents and refund the 2013 Bonds, including the paying of incidental expenses, which are
hereby authorized to be paid, and for carrying out, giving effect to and consummating the
transactions contemplated by this Resolution and the Financing Documents, including, without
limitation, the execution and delivery of any necessary or appropriate closing documents to be
delivered in connection with the execution and delivery of the Financing Documents and the
refunding of the 2013 Bonds.
Section 4. Pursuant to Section 11-57-205, C.R.S., the Board hereby delegates
to the Executive Director of the Authority the authority to make the following determinations
with respect to the Loan, including the execution of any certificates necessary or desirable to
evidence such determinations, which determinations shall be subject to the restrictions and
parameters set forth below:
(a) the rate or rates of interest on the Loan;
(b) the conditions on which and the prices at which the Loan may be
redeemed before maturity;
(c) the existence and amount of any reserve funds;
(d) the principal amount of the Loan;
(e) the amount of principal maturing in any particular year; and
(f) the dates on which principal and interest shall be paid.
The foregoing authority shall be subject to the following restrictions and
parameters:
(1) the Loan shall mature not later than December 1, 2028;
(2) the principal amount of the Loan shall not exceed $4,700,000
(3) the initial interest rate on the Loan shall not exceed 3.00%;
(4) the maximum annual repayment amount shall not exceed $600,000 and
the total repayment cost shall not exceed $5,400,000; and
(5) the Loan is (i) not subject to prepayment prior to maturity at the option of
the Town or (ii) subject to prepayment prior to maturity at a price equal to the principal amount
ATTACHMENT A
4
so prepaid plus accrued interest to the redemption date, with a prepayment premium not to
exceed 1% at such time as provided in the Sale Certificate.
Section 5. The Loan and the Note are special obligations of the Authority
payable solely as provided in the Loan Agreement, and are issued on a parity with the 2017
Bonds. The principal of, premium, if any, and interest on the Loan and the Note shall not
constitute an indebtedness of the Town or the State of Colorado or any political subdivision
thereof, and neither the Town, the State of Colorado nor any political subdivision thereof shall be
liable thereon, nor in any event shall the principal of, premium, if any, and interest on the Loan
and the Note, be payable out of funds or properties other than the Pledged Revenue, as such term
is defined in the Loan Agreement. Neither the Commissioners of the Authority nor any persons
executing the Loan Agreement or the Note shall be liable personally on the Loan Agreement or
the Note.
Section 6. After the Loan Agreement and the Note are entered into, this
Resolution shall be and remain irrepealable, and may not be amended except in accordance with
the Loan Agreement, until the Loan and the Note shall have been fully paid, canceled and
discharged in accordance therewith.
Section 7. The 2013 Bonds shall be paid and cancelled on the date of funding
of the Loan, at a price equal to the par amount thereof plus accrued interest, plus a redemption
premium of 1%.
Section 8. If, for any reason, the funds on hand from the Loan shall be
insufficient to make the payment of the principal of and accrued interest on the 2013 Bonds, as
the same shall be due and payable as provided in Section 7 above, the Authority shall forthwith
deposit additional legally available funds as may be required fully to meet the amount due and
payable on the 2013 Bonds.
Section 9. The officers of the Authority are hereby authorized and directed to
take all actions necessary or appropriate to effectuate the provisions of this Resolution, including
but not limited to the execution of such certificates and affidavits as may be reasonably required
by the Lender.
Section 10. The Chairman and the Executive Director are each hereby
appointed as an Authorized Person, as defined in the Loan Agreement. Different or additional
Authorized Persons may be appointed by resolution adopted by the Board and a certificate filed
with the Lender.
Section 11. All costs and expenses incurred in connection with the Loan and
the transactions contemplated by this Resolution shall be paid either from the proceeds of the
Loan or from legally available moneys of the Authority, or from a combination thereof, and such
moneys are hereby appropriated for that purpose.
Section 12. If any section, paragraph, clause or provision of this Resolution
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 Resolution.
ATTACHMENT A
5
Section 13. All bylaws, orders and resolutions, or parts thereof, inconsistent
herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be
construed as reviving any bylaw, order or resolution or part thereof.
Section 14. This Resolution shall be in full force and effect immediately upon
its passage and approval.
PASSED, ADOPTED AND APPROVED this March 24, 2020.
(SEAL)
_____________________________________________
Sarah Smith Hymes
Chairman of the Board of Commissioners
Attest:
___________________________________
Eric Heil, Executive Director
APPROVED AS TO LEGAL FORM:
_______________________________
Paul Wisor, Attorney for the Authority
ATTACHMENT A
6
STATE OF COLORADO )
) SS.
AVON URBAN RENEWAL )
AUTHORITY )
I, Eric Heil, the Executive Director/Secretary of the Avon Urban Renewal
Authority (the “Authority”), do hereby certify that:
1. The foregoing pages are a true and correct copy of a resolution (the
“Resolution”) passed and adopted by the Board of Commissioners of the Authority (the “Board”)
at a regular meeting held on March 24, 2020.
2. The Resolution was duly moved and seconded and the Resolution was
adopted at the meeting of March 24, 2020, by an affirmative vote of a majority of the members
of the Board as follows:
Name “Yes” “No” Absent
Sarah Smith Hymes
Amy Phillips
Jennie Fancher
Scott Prince
Chico Thuon
Tamra Nottingham-Underwood
Jake Wolf
3. The members of the Board were present at such meetings and voted on the
passage of such Resolution as set forth above.
4. The Resolution was approved and authenticated by the signature of the
Chair or Vice Chairman of the Board, sealed with the Authority seal, attested by the Secretary of
the Board and recorded in the minutes of the Board.
5. There are no bylaws, rules or regulations of the Board which might
prohibit the adoption of said Resolution.
6. Notice of the meeting of March 24, 2020, in the form attached hereto as
Exhibit A, was posted at the Avon Town Hall, 100 Mikaela Way; Avon Recreation Center, 90
Lake Street; Avon Public Library, 200 Benchmark Road; Avon Elementary School, 850 W
Beaver Creek Boulevard and the Town’s website, not less than twenty-four (24) hours prior to
the meeting in accordance with law.
ATTACHMENT A
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WITNESS my hand and the seal of said Authority affixed March 24, 2020.
(SEAL)
Executive Director/Secretary
ATTACHMENT A
A-1
EXHIBIT A
(Form of Notice of Meeting)
ATTACHMENT A
LOAN AGREEMENT
by and between
AVON URBAN RENEWAL AUTHORITY
as Borrower
and
[LENDER]
as Lender
regarding
$[4,700,000]
Avon Urban Renewal Authority
Tax Increment Revenue Refunding Loan
Series 2020
Dated as of June 1, 2020
ATTACHMENT B
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS ........................................................................................................ 2
ARTICLE II LOAN TERMS, FEES, APPLICATION OF PROCEEDS ............................... 7
Section 2.01. Agreement to Make Loan .................................................................................. 7
Section 2.02. Loan Origination Fee ......................................................................................... 7
Section 2.03. Application of Loan Proceeds and Other Available Funds ............................ 7
Section 2.04. Interest Rate; Default Rate; Interest Payments; Principal Payments. .......... 7
Section 2.05. Loan Prepayment ............................................................................................... 8
Section 2.06. Expenses and Attorneys’ Fees ........................................................................... 8
Section 2.07. Lien on Pledged Revenues; Special Obligations .............................................. 8
ARTICLE III CONDITIONS TO CLOSING ............................................................................ 9
Section 3.01. Conditions to Loan Closing ............................................................................... 9
ARTICLE IV FUNDS AND ACCOUNTS ............................................................................... 11
Section 4.01. Creation of Funds and Accounts ..................................................................... 11
Section 4.02. Revenue Fund.. ................................................................................................. 12
Section 4.03. Loan Payment Fund ......................................................................................... 12
Section 4.04. Transaction Costs Fund ................................................................................... 13
Section 4.05. Lender To Direct Funds and Accounts: Accounting .................................... 13
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS OF
BORROWER .............................................................................................................................. 14
Section 5.01. Accuracy of Information.................................................................................. 14
Section 5.02. Organization; Litigation .................................................................................. 14
Section 5.03. Performance of Covenants, Authority ............................................................ 14
Section 5.04. Use of Proceeds ................................................................................................. 14
Section 5.05. Tax Covenants .................................................................................................. 14
Section 5.06. Other Liabilities ................................................................................................ 15
Section 5.07. Financial Statements ........................................................................................ 15
Section 5.08. Reporting Requirements .................................................................................. 15
Section 5.09. Inspection of Books and Records .................................................................... 16
Section 5.10. Instruments of Further Assurance ................................................................. 16
Section 5.11. Additional Obligation Restrictions. ................................................................ 16
Section 5.12. Continued Existence ......................................................................................... 17
Section 5.13. Restructuring .................................................................................................... 17
Section 5.14. Operation and Management ............................................................................ 17
Section 5.15. Annual Audit and Budget ................................................................................ 17
ATTACHMENT B
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Section 5.16. No Exclusion of Property ................................................................................. 17
Section 5.17. Amendments to Financing Documents Require Prior Lender Consent ..... 18
Section 5.18. Enforcement of Cooperation Agreement ....................................................... 18
Section 5.19. Proper Allocation of New Construction ......................................................... 18
ARTICLE VI REPRESENTATIONS OF THE LENDER ..................................................... 18
Section 6.01. Accredited Investor .......................................................................................... 18
Section 6.02. Financial Institution or Institutional Investor ............................................... 18
ARTICLE VII DEPOSITS; INVESTMENTS ......................................................................... 18
Section 7.01. Investment of Funds ......................................................................................... 18
Section 7.02. Compliance with Tax Covenants .................................................................... 18
ARTICLE VIII EVENTS OF DEFAULT AND REMEDIES ................................................ 18
Section 8.01. Events of Default .............................................................................................. 18
Section 8.02. Remedies on Occurrence of Event of Default. ............................................... 19
Section 8.03. Notice to Lender of Default ............................................................................. 20
Section 8.04. Delay or Omission No Waiver ......................................................................... 20
Section 8.05. No Waiver of One Default to Affect Another; All Remedies Cumulative .. 20
Section 8.06. Other Remedies ................................................................................................ 20
ARTICLE IX MISCELLANEOUS ........................................................................................... 20
Section 9.01. Loan Agreement and Relationship to Other Documents .............................. 20
Section 9.02. Successors; Assignment ................................................................................... 21
Section 9.03. Notice of Claims against Lender; Limitation of Certain Damages.............. 21
Section 9.04. Notices ................................................................................................................ 21
Section 9.05. Payments ........................................................................................................... 21
Section 9.06. Applicable Law and Jurisdiction; Interpretation; Severability................... 22
Section 9.07. Copies; Entire Agreement; Modification ....................................................... 22
Section 9.08. Attachments ...................................................................................................... 22
Section 9.09. No Recourse Against Officers and Agents ..................................................... 22
Section 9.10. Conclusive Recital ............................................................................................ 23
Section 9.11. Limitation of Actions........................................................................................ 23
Section 9.12. Pledge of Revenues ........................................................................................... 23
Section 9.13. Payment on Non-Business Days ...................................................................... 23
Section 9.14. No Registration; No Securities Depository; No CUSIP ................................ 23
Section 9.15. Sovereign Immunity ......................................................................................... 23
Section 9.16. Termination ...................................................................................................... 24
Exhibit A - Form of Note
Exhibit B - Principal Repayment Schedule
ATTACHMENT B
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of June 1,
2020 by and between the AVON URBAN RENEWAL AUTHORITY (the “Borrower”), a
public body corporate and politic duly existing under the laws of the State of Colorado, and
[LENDER], a national banking association, in its capacity as lender (the “Lender”).
RECITALS
WHEREAS, the Borrower is a public body corporate and politic and has been duly
created, organized, established and authorized by the Town of Avon, Colorado (the “Town”) to
transact business and exercise its powers as an urban renewal authority, all under and pursuant to
the Colorado Urban Renewal Law, constituting part 1 of article 25 of title 31, Colorado Revised
Statutes (the “Act”) (all capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned in Article I hereof); and
WHEREAS, pursuant to the Act, the Borrower has the power and authority to borrow
money and to apply for and accept loans to accomplish the purposes set forth in the Act, and to
give such security as may be required; and
WHEREAS, an urban renewal plan, known as the “Town Center West Area Urban
Renewal Plan” was duly adopted by the Town Council of the Town pursuant to Resolution No.
07-27, Series of 2007, on August 14, 2007, and as amended pursuant to Resolution No. 15-21,
Series of 2015, on November 10, 2015 (the “Urban Renewal Plan”) for the purpose of approving
the Town Center West Area Urban Renewal Project (the “Urban Renewal Project”), such project
being an urban renewal project under the Act; and
WHEREAS, all applicable requirements of the Act and other provisions of law for and
precedent to the adoption and approval by the Town of the Urban Renewal Plan have been duly
complied with; and
WHEREAS, the Borrower has previously issued, for the purpose of paying a portion of
the costs of the Urban Renewal Project and refunding an existing loan, its Tax Increment
Revenue Bonds, Series 2013, issued in the aggregate principal amount of $6,825,000 and
presently outstanding in the aggregate principal amount of $4,560,000 (the “Refunded Bonds”),
pursuant to a resolution of the Authority dated as of November 12, 2013 (the “Refunded Bond
Resolution”); and
WHEREAS, the Authority has previously issued its Tax Increment Revenue Bonds,
Series 2017 in the aggregate principal amount of $3,000,000, which are currently outstanding in
the aggregate principal amount of $2,493,285.53 (the “2017 Bonds”); and
WHEREAS, the 2013 Bonds and the 2017 Bonds are payable from and have a lien on the
Pledged Property Tax Revenues; and
WHEREAS, the Borrower has determined that it is in the best interest of the Borrower
and the citizens and taxpayers of the Town to refund the Refunded Bonds and, for such purpose,
to incur indebtedness in the form of a loan; and
ATTACHMENT B
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WHEREAS, the Borrower has made a request to the Lender to provide financing for the
refunding of the Refunded Bonds by making available to the Borrower a loan in the original
principal amount of $[4,700,000] (the “Loan”); and
WHEREAS, the Lender is willing to enter into this Agreement and to make the Loan to
the Borrower pursuant to the terms and conditions contained herein; and
WHEREAS, the Borrower’s authority to execute and deliver the Note (as defined in
Article I hereof) and this Agreement and perform its obligations thereunder and hereunder is
authorized pursuant to the Authorizing Resolution (as more particularly defined in Article I
hereof); the Act; the provisions of Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Public
Securities Act”); and all other laws thereunto enabling; and
WHEREAS, the Loan shall constitute a special revenue obligation of the Borrower
payable from and secured by the Pledged Revenue, subject to the limitations set forth herein; and
WHEREAS, pursuant to the resolution authorizing the 2017 Bonds (the “2017 Bond
Resolution”), subject to certain conditions set forth in the 2017 Bond Resolution, the Authority
may issue Additional Bonds payable from and constituting a lien upon the Pledged Revenues (as
defined in the 2017 Bond Resolution) on a parity with the lien of the 2017 Bonds; and
WHEREAS, the Authority has determined that the conditions precedent to the issuance
of Additional Bonds as set forth in the 2017 Bond Resolution have been met; and
WHEREAS, the Authority has determined that the Note will be issued with a lien on the
Pledged Property Tax Revenues that is on a parity with the lien thereon of the outstanding 2017
Bonds.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
“Accredited Investor” means any Person who or which is an “accredited investor”, as
that term is defined under sections 3(b) and (4)(2) of the federal “Securities Act of 1933” by
regulation adopted thereunder by the Securities and Exchange Commission.
“Act” means Title 31, Article 25, Part 1, C.R.S., as amended.
“Additional Obligations” means the one or more series of bonds or other securities or
obligations authorized to be issued by the Authority and having a lien on the Pledged Revenues
on a parity with the lien of the Note.
“Agreement” means this Loan Agreement, as amended or supplemented from time to
time in the accordance with the provisions hereof.
ATTACHMENT B
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“Authorized Person” means the Chairman of the Board or the Executive Director of the
Borrower or any designee thereof, and also means any other individual authorized by the Board
to act as an Authorized Person hereunder, provided that the Borrower has provided specimen
signatures for such Authorized Person(s) to the Lender.
“Authorizing Resolution” means the resolution adopted by the Board on March 24, 2020,
authorizing the Borrower to incur the indebtedness of the Loan and execute and deliver the Note,
this Agreement, and the other Financing Documents to which the Borrower is a party.
“Avon Station/Confluence IGA” means the Intergovernmental Agreement Between Avon
Urban Renewal Authority, Confluence Metropolitan District, and Avon Station Metropolitan
District Concerning Incremental Taxes dated as of October 9, 2007.
“Board” means the Board of Commissioners of the Borrower.
“Borrower” means Avon Urban Renewal Authority, a public body corporate and politic
duly organized and existing as an urban renewal authority under the laws of the State of
Colorado.
“Business Day” means any day other than a Saturday, a Sunday, or any holiday on which
the Lender is closed for business.
“Chairman” means the Chairman of the Board.
“Cooperation Agreement” means the 2020 Cooperation Agreement between the Town of
Avon and the Avon Urban Renewal Authority dated as of June 1, 2020.
“Closing” means the concurrent execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto and the issuance and
disbursement of the Loan and application of the proceeds thereof in accordance with Section
2.03 hereof.
“Closing Date” means the date on which the Closing occurs, estimated to be on or about
June 1, 2020.
“Code” means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
“County” means Eagle County, Colorado.
“County Assessor” means the assessor of Eagle County, Colorado.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt Requirements” means, with respect to any Payment Date, an amount equal to the
sum of the following with respect to any such date: (a) the principal due on the Loan and (b) the
interest due on the Loan.
ATTACHMENT B
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“Default” means an event, act or occurrence which, with the giving of notice or the lapse
of time (or both), would become an Event of Default.
“Event of Default” has the meaning set forth in Section 8.01 hereof.
“Executive Director” means the Executive Director of the Authority.
“Final Assessed Valuation” means the final certified assessed valuation of all taxable
property within the Urban Renewal Project Area, as calculated and recorded by the County
Assessor on or about December 10 of each year, or on such other date as may be established by
law for the annual final certification of assessed valuation.
“Financing Documents” means this Agreement, the Note, the Authorizing Resolution, the
Urban Renewal Plan, the Moral Obligation Resolution and the Cooperation Agreement, all in
form and substance satisfactory to the Lender.
“Fiscal Year” means the 12 months commencing on the first day of January of any
calendar year and ending on the last day of December of the same calendar year, or any other
twelve-month period which the Borrower or other appropriate authority hereafter may establish
as the Borrower’s fiscal year.
“Interest Payment Date” means June 1 and December 1 of each year, commencing
December 1, 2020 and continuing through and including the Maturity Date.
“Lender” means [LENDER], a national banking association, in its capacity as lender of
the Loan.
“Loan” means the loan made by the Lender to the Borrower in the original principal
amount of $[4,700,000] as evidenced by the Note and made in accordance with the terms and
provisions of this Agreement.
“Loan Amount” means Four Million Seven Hundred Thousand and 00/100 U.S. Dollars
($[4,700,000]).
“Loan Payment Fund” means the fund by that name established by the provisions of
Section 4.01 hereof to be administered by the Lender in the manner and for the purposes set forth
in Section 4.03 hereof.
“Maturity Date” means December 1, 2028.
“Moral Obligation Resolution” means the resolution adopted by the Town Council
expressing its present intent, in each year the Note is outstanding, to lend additional moneys to
the Authority by making payments into the Loan Payment Account to the extent there are
insufficient Pledged Revenues to make such deposits when due.
“Net Pledged Revenue” means the moneys described in clauses (a), (b), and (d) of the
definition of Pledged Revenue set forth in this Article I.
ATTACHMENT B
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“Note” means the Promissory Note evidencing the Loan issued in the original principal
amount of $[4,700,000] from the Borrower, as maker, to the Lender, as payee, and dated as of
June 1, 2020.
“Parity Obligations” means the 2017 Bonds and Additional Obligations hereafter issued.
“Payment Date” means a Principal Payment Date and/or an Interest Payment Date, as the
context requires.
“Permitted Investments” means any investment or deposit permissible for the City under
then applicable law.
“Permitted Subordinate Debt” means (a) the Borrower’s obligations under the
Cooperation Agreement and the 2017 Cooperation Agreement and (b) Debt issued pursuant to
the provisions of Section 5.11(d) hereof.
“Pledged Property Tax Revenues” means, for each Fiscal Year, that portion of the ad
valorem property taxes produced by the levies at the rates fixed each year by or for the governing
bodies of the various taxing jurisdictions within or overlapping the Urban Renewal Project Area
upon that portion of the valuation for assessment of all taxable property within the Urban
Renewal Project Area which is in excess of the Property Tax Base Amount, provided, however,
that such amount shall be reduced by any lawful collection fee charged by the County and further
provided, that the following shall be specifically excluded from the foregoing:
(a) tax increment revenues required to be remitted by the Borrower to the
Confluence Metropolitan District pursuant to the Avon Station/Confluence IGA; and
(b) if authorized and approved by the Authority, ad valorem property taxes
produced by a mill levy of any special district formed after May 28, 2009, pursuant to Title 32,
Article 1, Colorado Revised Statutes, which mill levy is in addition to, and not a replacement for,
property taxes levied by taxing entities in existence as of May 28, 2009.
“Pledged Revenue” means:
(a) Pledged Property Tax Revenues;
(b) all amounts appropriated to the Borrower by the Town in accordance with
the Moral Obligation Resolution;
(c) all amounts held in the funds and accounts established and maintained
hereunder together with investment earnings thereon, including, without limitation, the
Loan Payment Fund; and
(d) all other legally available moneys which the Borrower determines, in its
sole discretion, to deposit in the Loan Payment Fund.
ATTACHMENT B
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“Principal Payment Date” or “Principal Payment Dates” means December 1 of each
year, commencing December 1, 2020 and continuing through December 1, 2028 (the Maturity
Date).
“Property Tax Base Amount” means the amount certified by the County Assessor as the
valuation for assessment of all taxable property within the Urban Renewal Project Area last
certified by the County Assessor prior to the adoption of the Urban Renewal Plan; provided,
however, that in the event of a general reassessment of taxable property in the Urban Renewal
Project Area, the valuation for assessment of taxable property within the Urban Renewal Project
Area shall be proportionately adjusted in accordance with such general reassessment in the
manner required by the Act.
“Refunded Bonds” means the Borrower’s Tax Increment Revenue Bonds, Series 2013,
issued in the aggregate principal amount of $6,825,000 and presently outstanding in the
aggregate principal amount of $4,560,000.
“Refunded Bond Resolution” means the resolution of the Authority adopted on November
12, 2013, authorizing the issuance of the Refunded Bonds and governing the provisions pursuant
to which such bonds are payable.
“Special Counsel” means (a) as of the Closing Date, Butler Snow LLP, and (b) as of any
other date, Butler Snow LLP, or such other attorneys selected by the Borrower with nationally
recognized expertise in the issuance of tax-exempt debt.
“Supplemental Public Securities Act” means Title 11, Article 57, C.R.S.
“Tax Certificate” means the tax compliance certificate to be signed by the Borrower, in a
form acceptable to Special Counsel, relating to the requirements of Sections 103 and 141-150 of
the Code.
“Town” means the Town of Avon, Colorado.
“Transaction Costs Fund” means the fund by that name established by the provisions of
Section 4.01 hereof to be administered by the Lender in the manner and for the purposes set forth
in Section 4.05 hereof.
“2017 Bond Resolution” means Resolution No. 16-04, Series of 2016 of the Authority, of
the Authority, which authorized the issuance and delivery of the 2017 Bonds.
“2017 Bonds” means the Authority’s Tax Increment Revenue Bonds, Series 2017, issued
in the aggregate original principal amount of $3,000,000, as authorized by the 2017 Bond
Resolution.
“2017 Cooperation Agreement” means the 2017 Cooperation Agreement between the
Town and the Authority.
“Urban Renewal Plan” means the Urban Renewal Plan known as the “Town Center West
Area Urban Renewal Plan” duly adopted by the Town Council of the Town pursuant to
ATTACHMENT B
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Resolution No. 07-27, Series of 2007, on August 14, 2007, and as amended pursuant to
Resolution No. 15-21, Series of 2015, on November 10, 2015, for the purpose of approving the
Town Center West Area Urban Renewal Project.
“Urban Renewal Project Area” means the area legally described in Section 1.2.1 of the
Urban Renewal Plan.
ARTICLE II
LOAN TERMS, FEES, APPLICATION OF PROCEEDS
Section 2.01. Agreement to Make Loan. The Lender hereby agrees to make a loan to
the Borrower in the original aggregate principal amount of $[4,700,000] (as previously defined,
the “Loan Amount”) subject to the terms and conditions of this Agreement. The Loan shall be
evidenced by the Note, the form of which is set forth in Exhibit A attached hereto.
Section 2.02. Loan Origination Fee. Upon the closing of the Loan, the Borrower shall
pay to the Lender the Origination Fee in the amount of $[_____], which shall be withheld by the
Lender from the proceeds of the Loan.
Section 2.03. Application of Loan Proceeds and Other Available Funds. On the
Closing Date, the Lender will disburse the proceeds of the Loan less the Origination Fee (the
“Net Loan Proceeds”), together with $[_______] (representing moneys from prior funds and
accounts relating to the Refunded Bonds), as follows:
(a) $[_______] shall be paid by the Lender to UMB Bank, n.a., as paying
agent for the Refunded Bonds, for payment of the purchase price of the Refunded Bonds
on the Closing Date; and
(b) $[_______] will be deposited in the Transaction Costs Fund.
Notwithstanding the foregoing and any other provision contained herein, the Lender shall
not be obligated to disburse any amounts other than the amounts described in subparagraph (b)
above until such time as the Lender has received confirmation that the Refunded Bonds have
been paid in full and cancelled.
Section 2.04. Interest Rate; Default Rate; Interest Payments; Principal Payments.
(a) Interest Rate. Commencing on the Closing Date through and including
the Maturity Date, the Loan Balance shall bear interest at a fixed rate equal to ______%
per annum (the “Fixed Interest Rate”). Interest on the Loan shall be calculated on the
basis of a 360-day year of twelve 30-day months.
(b) Interest Payments. Interest payments on the Loan shall be due and
payable semi-annually on each Interest Payment Date, commencing December 1, 2020.
ATTACHMENT B
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(c) Principal Payments. Principal payments on the Loan shall be due and
payable on each Principal Payment Date, commencing December 1, 2020, in the amounts
set forth below:
Payment
Date
Principal
Amount Due
12/1/2020
12/1/2021
12/1/2022
12/1/2023
12/1/2024
12/1/2025
12/1/2026
12/1/2027
12/1/2028*
*Maturity Date.
(d) All principal, interest and other payments to be made hereunder by or on
behalf of the Authority to the Lender shall be made, and shall not be considered made until
received, in lawful money of the United States of America in immediately available funds.
Section 2.05. Loan Prepayment. The Loan may be prepaid in whole or in part on any
date [REDEMPTION PROVISIONS] upon 30 days prior notice to the Lender at a price equal to
the principal amount of the Loan so prepaid plus accrued interest thereon to the date of
prepayment, without penalty.
Section 2.06. Expenses and Attorneys’ Fees. In the event that a claim by the Lender is
brought against the Borrower and the Lender prevails in such claim, the Borrower will reimburse
the Lender for all reasonable attorneys’ and all other consultants’ fees and all other costs, fees
and out-of-pocket disbursements incurred by the Lender in connection with the preparation,
execution, delivery, administration, defense and enforcement of this Agreement or any of the
other Financing Documents, including reasonable attorneys’ and all other consultants’ fees and
all other costs and fees (a) incurred before or after commencement of litigation or at trial, on
appeal or in any other proceeding; (b) incurred in any bankruptcy proceeding and (c) related to
any waivers or amendments with respect thereto (examples of costs and fees include but are not
limited to fees and costs for enforcing the collection of ad valorem property taxes in the amounts
required pursuant to Section 5.11 hereof or confirming the priority of the Lender’s claim on the
Pledged Revenue or the funds and accounts established hereunder). The Borrower will also
reimburse the Lender for all costs of collection of the Pledged Revenue, including all reasonable
attorneys’ and all other consultants’ fees, before and after judgment.
Section 2.07. Lien on Pledged Revenues; Special Obligations. The Pledged Revenues
are hereby irrevocably pledged to the punctual payment of the debt service requirements of the
Note. The Note shall be payable from and shall constitute an irrevocable first lien (but not
ATTACHMENT B
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necessarily an exclusive first lien), on the Pledged Revenues. Except as hereinafter provided, the
Note, the Parity Obligations and any Additional Obligations are equitably and ratably secured by
a pledge of and lien on the Pledged Revenues and shall not be entitled to any priority one over
the other in the application of the Pledged Revenues regardless of the time or times of the
issuance of the Note, the Parity Obligations and any such Additional Obligations, it being the
intention of the Board that there shall be no priority among the Note, the Parity Obligations, and
any Additional Obligations.
ARTICLE III
CONDITIONS TO CLOSING
Section 3.01. Conditions to Loan Closing. The funding by the Lender of the Loan
pursuant to Section 2.03 hereof is conditioned upon the satisfaction of each of the following:
(a) The Financing Documents. The Financing Documents shall have been
duly executed and delivered by each of the respective parties thereto and shall not have
been modified, amended or rescinded, shall be in full force and effect on and as of the
Closing Date and executed original or certified copies of each thereof have been
delivered to the Lender; provided, however, that with respect to the Note, the Lender
shall be in receipt of the executed original.
(b) Borrower Proceedings. The Lender shall have received a certified copy
of all resolutions and proceedings taken by the Borrower authorizing the execution,
delivery and performance of this Agreement, the Note, and the other Financing
Documents to which the Borrower is a party, and the transactions contemplated
hereunder and thereunder, together with such other certifications as to the specimen
signatures of the officers of the Borrower authorized to sign this Agreement, the Note,
and the other Financing Documents to be delivered by the Borrower hereunder and as to
other matters of fact as shall reasonably be requested by the Lender.
(c) Governmental Approvals. The Lender shall have received certified copies
of all governmental approvals, if any, necessary for the Borrower to execute, deliver and
perform its obligations under this Agreement and the other Financing Documents to
which the Borrower is a party.
(d) Representations and Warranties True; No Default. The Lender shall be
satisfied that on the Closing Date each representation and warranty on the part of the
Borrower contained in this Agreement and any other Financing Document to which the
Borrower is a party are true and correct in all material respects and no Default or Event of
Default has occurred and is continuing, and the Lender shall be entitled to receive
certificates, signed by authorized officers of the Borrower, to such effect.
(e) Borrower’s Certificate. The Lender shall have received a certificate
signed by an authorized officer of the Borrower, dated the Closing Date, to the same
effect as provided in the foregoing Subsections 3.01(a), (b), (c) and (d). Such certificate
ATTACHMENT B
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shall cover such other matters incidental to the transactions contemplated by this
Agreement or any other Financing Document as the Lender may reasonably request.
(f) Special Counsel’s Legal Opinions. The Lender shall have received a
letter from Special Counsel to the effect that the Lender may rely upon an opinion of
Special Counsel addressed to the Borrower as if such opinion were addressed to the
Lender; such opinion being dated the Closing Date and stating that the obligations of the
Borrower under this Agreement constitute a special revenue obligation of the Borrower,
that such obligation is binding and enforceable against the Borrower in accordance with
the terms of this Agreement; and which opinion shall address the tax exemption of the
interest on the Loan for state and federal purposes. The opinion addressed to the
Borrower and the reliance letter addressed to the Lender shall be in form and substance
satisfactory to the Lender and its counsel.
(g) Opinion of Counsel to the Borrower. The Lender shall have received an
opinion of counsel to the Borrower dated the Closing Date and addressed to the Lender,
with respect to such matters as the Lender may require, in form and substance
satisfactory to the Lender and its counsel, including opinions as to the validity of the
Borrower’s organization and existence; to the effect that all other governmental
approvals, if any, necessary for the Borrower to execute, deliver and perform its
obligations under this Agreement and the other Financing Documents to which the
Borrower is a party have been duly obtained; that the Authorizing Resolution has been
duly and properly adopted; and that this Agreement and the other Financing Documents
to which the Borrower is a party have been duly authorized and delivered by the
Borrower.
(h) Opinion of Counsel to Town. The Lender shall have received an opinion
from counsel to the Town, dated the Closing Date and addressed to the Lender, with
respect to such matters as the Lender may require, including, without limitation, opinions
to the effect that the Moral Obligation Resolution and the Urban Renewal Plan have been
duly and properly adopted by the Town Council of the Town, have not been rescinded,
revoked, or amended since such adoption and each remain in full force and effect; that
the Cooperation Agreement has been duly authorized and delivered by the Town and
constitutes a valid and binding obligation of the Town enforceable in accordance with its
terms; and otherwise in form and substance satisfactory to the Lender and its counsel.
(i) Other Certificates and Opinions. The Lender shall have received
certificates of authorized representatives of all parties to the Financing Documents with
respect to such matters as the Lender may require, or opinions of counsel as the Lender
may require, all in form and substance satisfactory to the Lender and its counsel.
(j) No Change in Law. No law, regulation, ruling or other action of the
United States, the State of Colorado or any political subdivision or authority therein or
thereof shall be in effect or shall have occurred, the effect of which would be to prevent
the Borrower from fulfilling its obligations under this Agreement.
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(k) Fees and Expenses. All Lender’s counsel fees and any other fees and
expenses due and payable in connection with the issuance of the Loan, the execution and
delivery of this Agreement and the other Financing Documents, and any other amounts
due and payable hereunder shall have been paid by the Borrower.
(l) Borrower Financial Information. The Borrower shall have provided the
Lender with all pertinent financial information regarding the Borrower.
(m) Borrower Due Diligence. The Lender and its counsel shall have been
provided with the opportunity to review all agreements, documents, and other material
information relating to the Borrower, the Pledged Revenue, the Refunded Bonds, and the
Borrower’s ability to perform its obligations under this Agreement and the other
Financing Documents to which the Borrower is a party.
(n) Approval of Financing Documents. The Lender and its counsel shall
have had sufficient time to review the Financing Documents and the substantially final
versions of such documents shall be in form and content satisfactory to the Lender and its
counsel.
(o) Other Requirements. The Lender shall be in receipt of such other
certificates, approvals, filings, opinions and documents as shall be reasonably requested
by the Lender.
(p) Other Legal Matters. All other legal matters pertaining to the execution
and delivery of this Agreement, the Note, and the other Financing Documents, and the
issuance of the Loan shall be reasonably satisfactory to the Lender and its counsel.
ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. Creation of Funds and Accounts. The following funds are hereby
created and established, each of which shall be administered by the Lender in accordance with
the provisions hereof:
(a) Revenue Fund;
(b) the Loan Payment Fund; and
(c) the Transaction Costs Fund.
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Section 4.02. Revenue Fund. Pursuant to the 2017 Bond Resolution, there was
continued a special fund of the Authority known as the “Avon Urban Renewal Authority
Revenue Fund.” So long as the Note or any 2017 Bonds shall be outstanding, either as to
principal or interest, all Pledged Property Tax Revenues shall be immediately credited to the
Revenue Fund and all moneys on deposit in the Revenue Fund shall be applied as described
below.
Section 4.03. Loan Payment Fund. First, from moneys on deposit in the Revenue Fund
and concurrently on a pari passu basis with any payments required to be made to the bond
account created by the 2017 Bond Resolution and any bond accounts created in connection with
any Additional Obligations, there shall be credited to a special account held by the Authority,
which is hereby created and designated as the “Avon Urban Renewal Authority, Tax Increment
Revenue Bonds, Series 2020 Loan Payment Fund” (the “Loan Payment Fund”), the following
amounts:
(i) Interest Payments. No later than the fifteenth day of each month,
commencing in the first month following the date of delivery of the Note, an amount in equal
monthly installments necessary, together with any other moneys from time to time available
therefor from whatever source, to pay the next installment of interest on the Note coming due at
the next interest payment date, and no later than the fifteenth day of each month thereafter,
commencing in the month in which an interest payment date occurs, one-sixth of the amount
necessary, together with any other moneys from time to time available therefor and on deposit
therein from whatever source, to pay the next installment of interest on the Note then
outstanding.
(ii) Principal Payments. No later than the fifteenth day of each
month, commencing in the first month following the date of delivery of the Note, an amount in
equal monthly installments necessary, together with any other moneys from time to time
available therefor from whatever source, to pay the next installment of principal of the Note
coming due at maturity, and no later than the fifteenth day of each month thereafter,
commencing in the month in which a principal payment date occurs, one-sixth of the amount
necessary, together with any other moneys from time to time available therefor and on deposit
therein from whatever source, to pay the next installment of principal of the Note coming due at
maturity.
If prior to any interest payment date or principal payment date there has been
accumulated in the Loan Payment Fund the entire amount necessary to pay the next maturing
installment of interest or principal, or both, the payment required in subsection (1) or (2)
(whichever is applicable) of this subsection, may be appropriately reduced; but the required
monthly amounts shall again be so credited to such account commencing on such interest
payment date or principal payment date.
A similar bond account shall be created for any series of Additional Obligations and
payments into such account shall be made contemporaneously with and have the same priority as
payments into the Loan Payment Fund created hereunder.
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The moneys in the Loan Payment Fund shall be used only to pay the principal of, prior
redemption premium if any, and interest on the Note as the same becomes due, and shall not be
applied to the payment of Parity Bonds or Additional Bonds.
(iii) Town Payments. If, in any month, there are insufficient moneys
on deposit in the Revenue Fund to make the payments into the Loan Payment Fund in the
amounts set forth above, or if the Executive Director anticipates that there will be a deficiency in
moneys on deposit in the Revenue Fund to make any such deposit in any given month, then the
Executive Director shall immediately notify the Town Manager of any such insufficiency.
Pursuant to the Moral Obligation Resolution, upon the receipt of any such notice, the Town
Manager shall notify the Town Council of any such insufficiency in the Revenue Fund and
request an appropriation or supplemental appropriation in an amount sufficient to make up any
such insufficiency. Pursuant to the Moral Obligation Resolution, the Town Council has agreed
to consider, but is not obligated to, deposit to the Loan Payment Fund an amount sufficient to
cover any such insufficiency. Until the Town credits an amount to the Loan Payment Fund in an
amount sufficient to fully fund the Loan Payment Fund as set forth above, the Authority shall
continue to transfer moneys on deposit in the Revenue Fund to the Loan Payment Fund to the
extent available, including any amounts necessary to make up any insufficiencies in preceding
months. While the Town Council has agreed to consider funding the Loan Payment Fund in the
event that there are insufficient moneys on deposit in the Revenue Fund to make the required
deposits thereto, the Town Council’s decision not to fund any such insufficiency shall not
constitute an Event of Default hereunder.
(iv) Investment Earnings. All interest income from moneys credited
to the Loan Payment Fund shall remain therein.
Section 4.04. Transaction Costs Fund. The Transaction Costs Fund shall be
maintained by the Lender in accordance with the terms of this Section 4.05. All moneys on
deposit in the Transaction Costs Fund shall be applied by the Lender, as directed by the
Borrower, to the payment of the costs incurred in connection with the transactions contemplated
by the Financing Documents in accordance with invoices provided to the Lender and as detailed
in a closing memorandum prepared by Piper Sandler & Co., as approved by the Borrower. Any
amounts remaining in the Transaction Costs Fund sixty (60) days after the Closing Date
(including investment earnings thereon) shall be transferred by the Lender to the Loan Payment
Fund. At such time as no amounts remain in the Transaction Costs Fund, such fund shall
terminate.
Section 4.05. Lender To Direct Funds and Accounts: Accounting. Subject to Article
VII hereof, the Borrower hereby grants to the Lender the right and the authority to direct all
activity with respect to all funds and accounts created pursuant to this Agreement, including
those funds and accounts created pursuant to this Article IV, provided that any such Lender
direction shall be in accordance with the terms of this Agreement. Subject to Article VII hereof,
the Borrower shall not have any right, power, or authority to direct any activity within any funds
created pursuant to this Agreement, including those funds and accounts created pursuant to this
Article IV, except that the Borrower may make any deposits into such funds as may be required
by this Agreement. Lender shall keep and maintain accounting records in such manner that the
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Pledged Revenue received and amounts deposited to each fund and account held hereunder may
at all times be readily and accurately determined.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
While any part of the Loan is outstanding or any other obligations hereunder or under any
of the other Financing Documents are unpaid or outstanding, the Borrower continuously
warrants, covenants and agrees as follows:
Section 5.01. Accuracy of Information. All information, certificates or statements
given to the Lender by the Borrower pursuant to this Agreement and the other Financing
Documents will be true and complete when given.
Section 5.02. Organization; Litigation. The Borrower is validly existing and in good
standing under the laws of its state of organization, has all requisite power and authority and
possesses all licenses, permits and approvals necessary to conduct its business. There is no
litigation or administrative proceeding threatened or pending against the Borrower which could,
if adversely determined, have a material adverse effect on the Borrower’s financial condition.
Section 5.03. Performance of Covenants, Authority. The Borrower covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Resolution, this Agreement, the Note, and all
proceedings pertaining thereto. The Borrower covenants that it is duly authorized under the
constitution and laws of the State of Colorado, including, particularly and without limitation, the
Act, to execute and deliver the Note, this Agreement, and the other Financing Documents to
which it is a party, and that all action on its part for the execution and delivery of the Note, this
Agreement, and the other Financing Documents to which it is a party have been duly and
effectively taken and will be duly taken as provided therein and herein, and that the Loan, the
Note, this Agreement, and the other Financing Documents to which the Borrower is a party are
and will be valid and enforceable obligations of the Borrower according to the terms thereof and
hereof.
Section 5.04. Use of Proceeds. Disbursements by the Lender to the Borrower hereunder
will be used exclusively by the Borrower for the purposes represented to the Lender and in
accordance with the provisions of Section 2.03 hereof.
Section 5.05. Tax Covenants. The Borrower covenants for the benefit of the Lender
that it will not take any action or omit to take any action with respect to the Loan, the proceeds
thereof, or any other funds of the Borrower or any facilities financed or refinanced with the
proceeds of the Loan if such action or omission (a) would cause the interest on the Loan to lose
its exclusion from gross income for federal income tax purposes under Section 103 of the Tax
Code or (b) would cause interest on the Loan to lose its exclusion from Colorado taxable income
under present Colorado law. The foregoing covenants shall remain in full force and effect
notwithstanding the payment in full or defeasance of the Loan until the date on which all
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obligations of the Borrower in fulfilling the above covenants under the Tax Code and Colorado
law have been met.
Section 5.06. Other Liabilities. The Borrower will pay and discharge, when due, all of
its liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.07. Financial Statements. The financial statements and other information
previously provided to the Lender by the Borrower or provided to the Lender by the Borrower in
the future are or will be complete and accurate and prepared in accordance with generally
accepted accounting principles generally applicable to urban renewal authorities. There has been
no material adverse change in the Borrower’ financial condition since such information was
provided by the Borrower to the Lender. The Borrower will (a) maintain accounting records in
accordance with generally recognized and accepted principles of accounting generally applicable
to urban renewal authorities consistently applied throughout the accounting periods involved;
(b) provide the Lender with such information concerning the business affairs and financial
condition of the Borrower as the Lender may reasonably request, provided that such information
relates to the Pledged Revenue or the Urban Renewal Project Area; and (c) without request,
provide the Lender with the information set forth in Section 5.08 below. The Borrower shall
notify the Lender promptly of all litigation or administrative proceedings, threatened or pending,
against the Borrower which would, if adversely determined, in Borrower’s reasonable opinion,
have a material adverse effect on the Borrower’s financial condition arising after the date hereof.
Section 5.08. Reporting Requirements. The Borrower will provide the following to
the Lender at the times and in the manner provided below:
(a) as soon as available, but not later than 210 days following each Fiscal
Year, a copy of the Town’s comprehensive annual financial report which shall include
audited financial statements of the Town and of the Borrower as a component unit of the
Town;
(b) as soon as available, but in no event later than December 31 of each year,
the annual budget of the Borrower for the immediately succeeding Fiscal Year and, as
soon as available, a copy of any proposed amendments thereto; and
(c) promptly upon receipt thereof, a certification of values issued by the
County Assessor containing the certified preliminary assessed valuation of the Urban
Renewal Project Area and the Property Tax Base Amount for that year;
(d) promptly upon receipt thereof, a certification of values issued by the
County Assessor containing the Final Assessed Valuation of the Urban Renewal Project
Area and the Property Tax Base Amount for that year;
(e) as soon as available, a copy of any report to the Town of any auditor of the
Town if and to the extent that such report relates to the Borrower as a component unit of
the Town and following approval thereof by the Borrower and the Town;
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(f) promptly at the time or times at which such event occurs, written notice of
any events likely to have a material adverse effect on the Borrower or the Loan; and
(g) promptly upon request of the Lender, the Borrower shall furnish to the
Lender such other reports or information regarding the Pledged Revenue or the assets,
financial condition, business or operations of the Borrower (to the extent related to the
Urban Renewal Project Area) as the Lender may reasonably request, to the extent legally
permissible for the Borrower to provide.
Section 5.09. Inspection of Books and Records. The Lender shall have the right to
examine any of the books and records of the Borrower at any reasonable time and as often as the
Lender may reasonably desire provided, however, that (a) the Lender shall provide not less than
3 days prior notice to the Borrower of its intent to make such examination and (b) the Lender
shall apply the standard of reasonableness to any request made of the Borrower with respect to
such examination. Without limiting the generality of the foregoing, the Lender agrees that it
shall use commercially reasonable efforts to maintain as confidential any non-public or
proprietary information obtained by the Lender in exercising its rights under this Section 5.09.
Section 5.10. Instruments of Further Assurance. The Borrower covenants that it will
do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged, and
delivered, such agreements supplemental hereto and such further acts, instruments, and transfers
as the Lender may reasonably require for the better assuring, transferring, and pledging unto the
Lender the Pledged Revenue; provided, however, that the Borrower shall not be obligated to
incur in excess of nominal expenses in complying with this covenant.
Section 5.11. Additional Obligation Restrictions.
(a) No Senior Obligations. The Borrower shall not incur any additional
obligations payable from or constituting a lien upon the Pledged Revenue senior to the
lien thereon of the Loan.
(b) No Additional Obligations Without Lender Consent. The Borrower shall
not, without the prior written consent of the Lender, incur Additional Obligations payable
from or constituting a lien upon the Pledged Revenue on parity to the lien thereon of the
Loan.
(c) Certain Tax Sharing Agreements Not Debt. The Avon
Station/Confluence IGA and any agreements entered into by the Borrower for the
purpose of effecting the provisions of clause (b) of the definition of “Pledged Property
Tax Revenues” set forth in Article I hereof shall not constitute debt for purposes of
Section 5.11(d) below or otherwise under this Agreement.
(d) Permitted Subordinate Obligations. The Borrower may incur additional
obligations secured by a lien on the Net Pledged Revenue fully subordinate to the lien
thereon of the Loan (“Permitted Subordinate Debt”), provided that:
(i) such obligations shall be limited to the Borrower’s obligations
under the Cooperation Agreement and/or tax increment sharing agreements
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entered into by the Borrower for the purpose of financing the development or
redevelopment of projects within the Urban Renewal Project Area;
(ii) all agreements and other instruments pursuant to which Permitted
Subordinate Debt is incurred shall contain language to the effect that such
obligation is fully subordinate to the Loan;
(iii) payments on such obligations shall be made not more than once
annually and only on a date in each year after the date on which all payments due
in that year on the Loan have been made or the amount necessary to make such
payments has been accumulated and is on deposit in the Loan Payment Fund;
(iv) such obligations shall not be subject to acceleration;
(v) at the time of issuing or incurring such obligations, no Event of
Default shall have occurred and be continuing under this Agreement; and
(vi) prior to the issuance or incurrence of the Permitted Subordinate
Debt then proposed, the Borrower shall provide Lender with notice of the
proposed issuance thereof, which notice shall include a statement to the effect that
such obligations will be incurred in accordance with the provisions of this Section
5.11(d).
Section 5.12. Continued Existence. The Borrower will maintain its existence and shall
not merge or otherwise alter its corporate structure in any manner or to any extent as might
reduce the security provided for the payment of the Loan.
Section 5.13. Restructuring. In the event the Pledged Revenue is insufficient or is
anticipated to be insufficient to pay the principal of, prepayment penalty, if any, and interest on
the Loan when due, the Borrower shall use its best efforts to refinance, refund, or otherwise
restructure the Loan so as to avoid such a default.
Section 5.14. Operation and Management. The Borrower will continue to operate in
accordance with all applicable laws, rules, regulations, and intergovernmental agreements, and
keep and maintain separate accounts of the receipts and expenses thereof in such manner that the
Pledged Revenue may at all times be readily and accurately determined.
Section 5.15. Annual Audit and Budget. At least once a year in the time and manner
provided by law, the Borrower will cause audits to be performed of the records relating to the
Borrower’s revenues and expenditures. In addition, at least once a year in the time and manner
provided by law, the Borrower will cause budgets to be prepared and adopted. The audits and
budgets of the Borrower may be presented as a component unit of the Town. Copies of the
budgets and the audits will be filed and recorded in the places, time, and manner provided by
law.
Section 5.16. No Exclusion of Property. The Borrower shall take no action that could
have the effect of excluding property from the Urban Renewal Project Area unless consented to
in writing by the Lender.
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Section 5.17. Amendments to Financing Documents Require Prior Lender Consent.
The Borrower shall not amend or consent to any amendment to any Financing Document, or
waive any provision thereof, without the prior written consent of the Lender.
Section 5.18. Enforcement of Cooperation Agreement. The Borrower shall do all
things reasonably necessary and appropriate to enforce the Cooperation Agreement against the
Town.
Section 5.19. Proper Allocation of New Construction. The Borrower shall cooperate
with the Lender in making a good faith effort to determine that the County Assessor has correctly
allocated new construction to the reassessment of property within the Urban Renewal Project
Area.
ARTICLE VI
REPRESENTATIONS OF THE LENDER
Section 6.01. Accredited Investor. The Lender is an organization that qualifies as an
“accredited investor,” as defined in § 11-59-110(1)(g) C.R.S.
Section 6.02. Financial Institution or Institutional Investor. The Lender is an
organization that qualifies as a “financial institution or institutional investor” as defined in §32-
1-103(6.5), C.R.S..
ARTICLE VII
DEPOSITS; INVESTMENTS
Section 7.01. Investment of Funds. Notwithstanding any provision contained herein,
the Lender shall invest moneys on deposit in the Loan Payment Fund as directed in writing by
the Borrower in Permitted Investments and may rely upon such direction as a determination that
the investment described in such direction is a Permitted Investment.
Section 7.02. Compliance with Tax Covenants. Any and all interest income on
moneys held and administered by the Lender under this Agreement shall be subject to full and
complete compliance at all times with the covenants and provisions of Section 5.05 hereof.
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event
of Default under this Agreement (whatever the reason for such event or condition and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
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decree, rule, regulation, or order of any court or any administrative or governmental body), and
there shall be no default or Event of Default hereunder except as provided in this Section 8.01.
(a) The Borrower fails to pay the interest on the Loan when due pursuant to
this Agreement;
(b) The Borrower fails to pay the principal on the Loan when due pursuant to
this Agreement;
(c) The Borrower fails to deposit the Net Pledged Revenue as required herein
or fails to transfer the Net Pledged Revenue to the Lender as required herein;
(d) The Borrower defaults in the performance or observance of any other of
the covenants, agreements, or conditions on the part of the Borrower in this Agreement or
the Note and fails to remedy the same to the satisfaction of the Lender within 45 days
after the occurrence thereof;
(e) The Borrower fails to replenish the Loan Payment Fund as required in
Section 4.03 hereof;
(f) the Borrower shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered with respect
to it or seeking to adjudicate it insolvent or a bankrupt or seeking reorganization,
arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief
with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian
or other similar official for itself or for any substantial part of its property, or the
Authority shall make a general assignment for the benefit of its creditors;
Section 8.02. Remedies on Occurrence of Event of Default.
(a) Lender’s Rights and Remedies. Upon the occurrence and continuance of
an Event of Default, the Lender shall have the following rights and remedies which may
be pursued:
(i) Receivership. Upon the filing of a bill in equity or other
commencement of judicial proceedings to enforce the rights of the Lender
hereunder, the Lender shall be entitled as a matter of right to the appointment of a
receiver or receivers of the Pledged Revenue, and of the revenues, income,
product, and profits thereof pending such proceedings, subject however, to
constitutional limitations inherent in the sovereignty of the Borrower; but
notwithstanding the appointment of any receiver or other custodian, the Lender
shall be entitled to the possession and control of any cash, securities, or other
instruments constituting Pledged Revenue at the time held by, or payable or
deliverable under the provisions of this Loan Agreement to, the Lender.
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(ii) Suit for Judgment. The Lender may proceed to protect and enforce
its rights under this Loan Agreement and any provision of law by such suit,
action, or special proceedings as the Lender shall deem appropriate.
(iii) Mandamus or Other Suit. The Lender may proceed by mandamus
or any other suit, action, or proceeding at law or in equity, to enforce its rights
hereunder.
(b) Judgment. No recovery of any judgment by the Lender shall in any
manner or to any extent affect the lien of this Loan Agreement on the Pledged Revenue
or any rights, powers, or remedies of the Lender hereunder, but such lien, rights, powers,
and remedies of the Lender shall continue unimpaired as before.
(c) No Acceleration. Notwithstanding anything herein to the contrary,
acceleration of the Loan shall not be an available remedy for an Event of Default.
Section 8.03. Notice to Lender of Default. Notwithstanding any cure period described
above, the Borrower will immediately notify the Lender in writing when it obtains knowledge of
the occurrence of any Default or Event of Default.
Section 8.04. Delay or Omission No Waiver. No delay or omission of the Lender to
exercise any right or power accruing upon any default shall exhaust or impair any such right or
power or shall be construed to be a waiver of any such default, or acquiescence therein; and
every power and remedy given by this Agreement may be exercised from time to time and as
often as may be deemed expedient.
Section 8.05. No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any
subsequent or any other then existing Event of Default or shall impair any rights or remedies
consequent thereon. All rights and remedies of the Lender provided herein shall be cumulative
and the exercise of any such right or remedy shall not affect or impair the exercise of any other
right or remedy.
Section 8.06. Other Remedies. Nothing in this Article VIII is intended to restrict the
Lender’s rights under any of the Financing Documents or at law, and the Lender may exercise all
such rights and remedies as and when they are available.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Borrower (and the rights and remedies of the
Lender) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Lender the most favorable rights set
forth in the conflicting documents, except that if there is a direct conflict between any preprinted
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terms and specifically negotiated terms (whether included in an addendum or otherwise), the
specifically negotiated terms will control.
Section 9.02. Successors; Assignment. The rights, options, powers and remedies
granted in this Agreement and the other Financing Documents will extend to the Lender and to
its successors and permitted Lender assignees, will be binding upon the Borrower and its
successors and will be applicable hereto and to all renewals and/or extensions hereof. This Loan
Agreement shall be assignable by the Lender to any entity without the consent of the Borrower,
provided that the assignee (unless an affiliate of the Lender) shall provide an opinion of legal
counsel to the effect that the assignee is legally authorized to perform the obligations of the
Lender hereunder.
Section 9.03. Notice of Claims against Lender; Limitation of Certain Damages. In
order to allow the Lender to mitigate any damages to the Borrower from the Lender’s alleged
breach of its duties under the Financing Documents or any other duty, if any, to the Borrower,
the Borrower agrees to give the Lender written notice no later than twenty (20) days after the
Borrower knows of any claim or defense it has against the Lender, whether in tort or contract,
relating to any action or inaction by the Lender under the Financing Documents, or the
transactions related thereto, or of any defense to payment of the Borrower’s obligations for any
reason. The requirement of providing timely notice to the Lender represents the parties’ agreed-
to standard of performance regarding the duty of the Lender to mitigate damages related to
claims against the Lender. Notwithstanding any claim that the Borrower may have against the
Lender, and regardless of any notice the Borrower may have given the Lender, the Lender will
not be liable to the Borrower for consequential and/or special damages arising therefrom, except
those damages arising from the Lender’s willful misconduct, gross negligence or bad faith.
Failure by the Borrower to give notice to the Lender shall not waive any claims of the Borrower
but such failure shall relieve the Lender of any duty to mitigate damages prior to receiving
notice.
Section 9.04. Notices. Notice of any record shall be deemed delivered when the record
has been (a) deposited in the United States Mail, postage pre-paid; (b) received by overnight
delivery service; (c) received by telex; (d) received by telecopy; (e) received by electronic mail
through the internet; or (f) when personally delivered at the following addresses:
If to the Borrower: Avon Urban Renewal Authority
c/o Town Manager, Town of Avon
100 Mikaela Way
P.O. Box 975
Avon, Colorado 81620
Telephone: (970) 748-4000
e-mail: eheil@avon.org
If to the Lender: [LENDER]
Section 9.05. Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Lender to principal, interest and other
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amounts due under the Note and this Agreement in any order which the Lender elects, subject to
the provisions of this Agreement.
Section 9.06. Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement will be governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by Federal law. Invalidity of any provisions of this
Agreement will not affect any other provision. THE BORROWER AND THE LENDER
HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITUATED IN DENVER, COLORADO, AND WAIVE ANY
OBJECTIONS BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY
ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT,
THE NOTE, OR THE PLEDGED REVENUE OR ANY TRANSACTIONS ARISING
THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE
FOREGOING. Nothing in this Agreement will affect the Lender’s rights to serve process in any
manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Lender’s offices, and only upon the Lender’s receipt of the executed originals thereof.
Invalidity of any provision of this Agreement shall not affect the validity of any other provision.
Section 9.07. Copies; Entire Agreement; Modification. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE
ENFORCEABLE. NO OTHER TERMS OR PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS
AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO
ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN THE
BORROWER AND THE LENDER. A MODIFICATION OF ANY OTHER CREDIT
AGREEMENT NOW IN EFFECT BETWEEN THE BORROWER AND THE
LENDER, WHICH OCCURS AFTER RECEIPT BY THE BORROWER OF THIS
NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL
OR IMPLIED MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT ARE NOT
ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
Section 9.08. Attachments. All documents attached hereto, including any appendices,
schedules, riders, and exhibits to this Agreement, are hereby expressly incorporated by reference.
Section 9.09. No Recourse Against Officers and Agents. Pursuant to Section 11-57-
209 of the Supplemental Public Securities Act, if a member of the Board of the Borrower, or any
officer or agent of the Borrower, acts in good faith in the performance of his duties as a member,
officer, or agent of the Board or the Borrower and in no other capacity, no civil recourse shall be
available against such member, officer or agent for payment of the principal of and interest on
the Loan. Such recourse shall not be available either directly or indirectly through the Board of
the Borrower, or otherwise, whether by virtue of any constitution, statute, rule of law,
ATTACHMENT B
23
enforcement of penalty, or otherwise. By the acceptance of the delivery of the Note evidencing
the Loan and as a part of the consideration for such transfer, the Lender and any person
purchasing or accepting the transfer of the obligations representing the Loan specifically waives
any such recourse.
Section 9.10. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, the Note and this Agreement are entered into pursuant to certain
provisions of the Supplemental Public Securities Act. Such recital shall be conclusive evidence
of the validity and the regularity of the issuance of the Note and this Agreement after delivery for
value.
Section 9.11. Limitation of Actions. Pursuant to Section 11-57-212 of the
Supplemental Public Securities Act, no legal or equitable action brought with respect to any
legislative acts or proceedings in connection with the authorization or issuance of the Note or
this Agreement shall be commenced more than 30 days after the authorization of the Note and
this Agreement.
Section 9.12. Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of revenues to secure or pay the Loan provided herein and therein shall be
governed by Section 11-57-208 of the Supplemental Public Securities Act, this Agreement, the
Note, and the Authorizing Resolution. The amounts pledged to the payment of the Loan shall
immediately be subject to the lien of such pledge without any physical delivery, filing, or further
act. The lien of such pledge shall have a first priority. The lien of such pledge shall be valid,
binding, and enforceable as against all persons having claims of any kind in tort, contract, or
otherwise against the Borrower irrespective of whether such persons have notice of such liens.
Section 9.13. Payment on Non-Business Days. Except as provided herein, whenever
any payment hereunder shall be stated to be due on a day which is not a Business Day, such
payment may be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of the amount due.
Section 9.14. No Registration; No Securities Depository; No CUSIP. The City and
the Lender hereby agree as follows: (i) the Notes are not being registered under the Securities
Act of 1933; (ii) the Notes are not being registered or otherwise qualified for sale under the
“Blue Sky” laws and regulations of any state; (iii) the Lender will hold the Notes as two (2)
separate debt instruments; (iv) no CUSIP number will be obtained for the Notes; (v) no official
statement or other offering document has been or will be prepared in connection with the private
placement of the Loan with the Lender; (iv) the Loan will not close through the Depository Trust
Company or any other securities depository and the Notes will not be in book entry form; (v) the
Loan are not listed on any stock or other securities exchange; and (vi) the Loan shall not be
assigned a rating by any rating agency.
Section 9.15. Sovereign Immunity. Notwithstanding any other provisions of this
Agreement to the contrary, no term or condition of this Agreement or any other Financing
Document 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, Title 24, Article 10, C.R.S., as now or hereafter amended.
ATTACHMENT B
24
Section 9.16. Termination. This Agreement shall terminate at such time as no amounts
are due and owing to the Lender hereunder or under any of the other Financing Documents.
[The remainder of this page intentionally left blank]
ATTACHMENT B
25
IN WITNESS WHEREOF, the undersigned have executed this Loan Agreement as of the
date set forth above.
LENDER
[LENDER], a national banking association
By Authorized Officer
BORROWER
AVON URBAN RENEWAL AUTHORITY
By Chairman, Board of Commissioners
[SEAL]
Attest:
By
Executive Director/Secretary, Board of Commissioners
[Signature Page to Loan Agreement]
ATTACHMENT B
EXHIBIT A
FORM OF NOTE
This Note may only be transferred to: (i) an affiliate of the Lender; (ii) a
“Bank” as defined in Section 3(a)(2) of the Securities Act of 1933 as amended (the “Securities
Act”); (iii) an “Accredited Investor” as defined in Regulation D under the Securities Act; or
(iv) a “Qualified Institutional Buyer” as defined in Rule 144A under the Securities Act.
UNITED STATES OF AMERICA
STATE OF COLORADO
AVON URBAN RENEWAL AUTHORITY
PROMISSORY NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
$[______]
US $[4,700,000] June 1, 2020
FOR VALUE RECEIVED, AVON URBAN RENEWAL AUTHORITY, a public body
corporate and politic duly organized and existing as an urban renewal authority under the laws of
the State of Colorado (hereinafter referred to as “Maker”), promises to pay to the order of
[LENDER], a national banking association, its successors and assigns (hereinafter referred to as
“Payee”), at the office of Payee or its agent, designee, or assignee, or such place as Payee or its
agent, designee, or assignee may from time to time designate in writing, the principal sum of
FOUR MILLION SEVEN THOUSAND AND 00/100 DOLLARS (US $[4,700,000].00)
pursuant to the terms of the Loan Agreement dated of even date herewith (the “Loan
Agreement”) by and between Maker and Payee, in lawful money of the United States of
America. Unless and until otherwise designated in writing by Payee to Maker, all payments
hereunder shall be made to Payee in accordance with the Loan Agreement.
Amounts received by Payee under this Promissory Note (this “Note”) shall be applied in
the manner provided by the Loan Agreement. This Note shall bear interest, be payable, mature
and be enforceable pursuant to the terms and provisions of the Loan Agreement. All capitalized
terms used and not otherwise defined herein shall have the respective meanings ascribed in the
Loan Agreement.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by Federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to certain provisions of the Supplemental Public Securities Act, being Title
11, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be conclusive
evidence of the validity and the regularity of the issuance of this Note after delivery for value.
ATTACHMENT B
A-2
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY
BY AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE
NO ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO
THE SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of Avon Urban Renewal
Authority, as Maker, has executed this Promissory Note as of the day and year first above
written.
AVON URBAN RENEWAL AUTHORITY
By Chairman, Board of Commissioners
[SEAL]
Attest:
By
Executive Director/Secretary, Board of Commissioners
[Signature Page to Promissory Note]
ATTACHMENT B
EXHIBIT B
PRINCIPAL REPAYMENT SCHEDULE
Year
Principal
Payment Due
12/01/2020
12/01/2021
12/01/2022
12/01/2023
12/01/2024
12/01/2025
12/01/2026
12/01/2027
12/01/2028
ATTACHMENT B
2020 COOPERATION AGREEMENT
BETWEEN THE TOWN OF AVON AND
THE AVON URBAN RENEWAL AUTHORITY
THIS 2020 COOPERATION AGREEMENT (this “Agreement”), dated as of
June 1, 2020, is made and entered into between the TOWN OF AVON, COLORADO (the
“Town”) and the AVON URBAN RENEWAL AUTHORITY (the “Authority”).
WHEREAS, the Town is a Colorado home rule municipality with all the powers
and authority granted pursuant to Article XX of the Colorado Constitution and its Town Charter;
and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the
powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised
Statutes (“C.R.S.”) (the “Urban Renewal Law”); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article 1, Part 2, C.R.S., the Town and the Authority are authorized to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each
governmental entity; and
WHEREAS, the Town has heretofore approved the Avon Urban Renewal
Authority Town Center West Area Urban Renewal Plan, as amended (the “Plan”) and the urban
renewal project described therein (the “Urban Renewal Project”); and
WHEREAS, the Urban Renewal Project has been undertaken for the public
purpose of enhancing employment opportunities, eliminating existing conditions of blight, and
improving the tax base of the Town; and
WHEREAS, pursuant to Section 31-25-112, C.R.S., the Town is specifically
authorized to do all things necessary to aid and cooperate with the Authority in connection with
the planning or undertaking of any urban renewal plans, projects, programs, works, operations or
activities of the Authority, to enter into agreements with the Authority respecting such actions to
be taken by the Town, and appropriating funds and making such expenditures of its funds to aid
and cooperate with the Authority in undertaking the Urban Renewal Project and carrying out the
Plan; and
WHEREAS, the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2013 in the original aggregate principal amount of $6,825,000, and presently
outstanding in the aggregate principal amount of $4,560,000 (the “2013 Bonds”), for the purpose
of financing the acquisition, construction and equipping of the Urban Renewal Project and
refinancing a loan by and between the Authority and Vectra Bank dated May 28, 2009 (the
“2009 Loan”); and
ATTACHMENT C
2
WHEREAS, in connection with the issuance of the 2013 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2013 Cooperation
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, pursuant to Resolution No. 16-04, Series of 2016 of the Authority,
the (“2017 Bond Resolution”), the Authority has previously issued its Tax Increment Revenue
Bonds, Series 2017, in the original aggregate principal amount of $3,000,000 (the “2017 Bonds”)
for the purpose of financing the acquisition, construction and equipping of the project described
in the 2017 Bond Resolution and the Plan; and
WHEREAS, in connection with the issuance of the 2017 Bonds, the Town and the
Authority executed and delivered a Cooperation Agreement (the “2017 Cooperation
Agreement”) pursuant to which the Town agreed, subject to certain conditions, to loan funds to
the Authority for urban renewal purposes; and
WHEREAS, the Authority is entering into a Loan Agreement (the “Loan
Agreement”) with [LENDER] (the “Lender”) to obtain a loan in the principal amount of not to
exceed $4,200,000 (the “Loan”) in order to finance the costs of refunding the 2013 Bonds (the
“Refunding Project”); and
WHEREAS, the Town Council of the Town (the “Council”) has adopted its
Resolution [____], Series 2020 (the “2020 Moral Obligation Resolution”) declaring its
nonbinding intent and expectation that, in each year the Note is outstanding, it will lend
additional moneys to the Authority, within the limits of available funds and revenues, by making
payments into the Loan Payment Fund to the extent there are insufficient Pledged Revenues to
make such deposits when due; and
WHEREAS, the Town Council has determined that it is in the best interest of the
Town and the Authority has determined it is in the best interest of the Authority, that the 2017
Cooperation Agreement remain in full force and effect, and that this Agreement shall be an
additional cooperation agreement among the Town and the Authority, which agreement shall
supersede and replace in its entirety the 2013 Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
Town and the Authority agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement.
2. 2013 COOPERATION AGREEMENT/ 2017 COOPERATION
AGREEMENT. This Agreement hereby supersedes and replaces in its entirety the 2013
Cooperation Agreement. The 2017 Cooperation Agreement is hereby ratified, approved and
confirmed and shall remain in full force and effect. The terms of this Agreement shall be in
addition to all the terms and provisions of the 2017 Cooperation Agreement.
ATTACHMENT C
3
3. PLEDGED PROPERTY TAX REVENUES.
(a) The Authority shall use Pledged Property Tax Revenues for
purposes described in the Loan Agreement and for any other lawful purpose, as permitted by the
Act.
(b) To the extent lawfully possible, the Town will take no action that
would have the effect of materially reducing Pledged Property Tax Revenues.
4. LOAN. (a) If the Council appropriates funds pursuant to the 2020 Moral
Obligation Resolution, such funds shall be a loan from the Town to the Authority to be repaid as
provided herein.
(b) The Town may advance to the Authority amounts to be used by the
Authority for costs incurred for its staffing, consultants, design, engineering, construction, and
other expenses in connection with the Plan and the Refunding Project, including any amounts
advanced prior to the date hereof (the “Prior Advance”). Such amounts shall be subject to
annual appropriation by the Town Council, and the Town shall not be obligated to advance any
money to the Authority pursuant to the terms hereof. If amounts are appropriated by the Town
Council, such amounts may be paid directly to the Authority by the Town or, at the request of the
Authority, paid to third-parties by the Town on behalf of the Authority. Each amount advanced
shall constitute a loan to the Authority in an amount equal to such advance, to be repaid as
provided herein.
(c) The Town hereby authorizes the Authority to utilize the services of
certain Town employees as determined by the Town to assist the Authority in work related to the
Plan and the Refunding Project. The Authority shall, upon request of the Town, reimburse the
Town for the applicable percentage of each such employees’ wages or salary and benefits, as set
forth in writing by the Town. The use of such employees by the Authority and the proportionate
cost of their services shall be deemed an advance by the Town and the obligation to pay for such
services is hereby designated a loan from the Town to the Authority to be repaid as provided
herein. The Town may, in its discretion, choose not to seek reimbursement of such costs in order
to assist the Authority with the implementation of the Plan.
(d) The Town shall retain the right to establish the employees’ wages
or salary and benefits, and the right to discharge, reassign, or hire employees to perform the
services required by the Authority. Except for the percentage of time devoted to the Authority
activities which shall be under the direction or control of the Executive Director of the Authority,
the Town retains the right to direct and control the employees. The Town, as the employer, has
the responsibility for payment of salary or wages to the employee, and for reporting,
withholding, and paying any applicable taxes with respect to the employees’ wages or salary and
payment of Town sponsored employee benefit plans and payment of unemployment
compensation insurance as may be required. The Town also retains the right to provide for the
welfare and benefit of employees through such programs as professional training. The Authority
shall not have any responsibility for the payment or reporting of remuneration paid to the Town’s
ATTACHMENT C
4
employees, all of such responsibilities being the obligation of the Town. The Town intends to
retain the right to maintain the employment relationship between the Town and its employees on
a long term, and not a temporary basis.
(e) In the event of any employment related issues with employees
assigned to work with the Authority, the Executive Director of the Authority shall report such
concerns or issues promptly to the Town Manager, who shall be responsible for addressing such
concerns.
(f) Any advances or loans made pursuant to this Agreement, including
the Prior Advances, shall be reimbursed to the Town to the extent there are Pledged Revenues
available for such purposes pursuant to the Loan Agreement. To the extent that such advances
and/or loans are not paid, the Town may, by resolution, forgive all or any portion of such
advances and/or loans at any time.
(g) Any other amounts advanced or loaned to the Authority by the
Town or payments made or debts incurred by the Town on behalf of the Authority relating to the
Plan, the Urban Renewal Project, the Loan or the Refunding Project may be designated a loan
from the Town to the Authority to be repaid as provided herein.
5. PAYMENT. (a) All amounts payable by the Authority to the Town
hereunder, including the Prior Advances, shall constitute “Permitted Subordinate Debt” for
purposes of the Loan Agreement. The Authority shall cause such amounts to be paid from and to
the extent of Pledged Revenue available for the payment of Permitted Subordinate Debt in
accordance with Section 5.11(d) of the Loan Agreement. All amounts payable by the Authority
to the Town hereunder shall be on a parity basis with all amounts payable by the Authority to the
Town under the 2017 Cooperation Agreement.
(b) Due to the benefits gained by the Town from the Urban Renewal
Project, no interest will be due on the amounts advanced or loaned to the Authority by the Town
unless the Town and the Authority agree in writing that interest shall be paid on any such loans
or advances.
6. FURTHER COOPERATION. (a) The Town shall continue to make
available such employees of the Town as may be necessary and appropriate to assist the
Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban
Renewal Law, the Plan, the Urban Renewal Project, the Loan or the Refunding Project, or any
other lawfully authorized duty or activity of the Authority.
(b) The Town agrees to assist the Authority by pursuing all
lawful procedures and remedies available to it to collect and transfer to the Authority on a timely
basis all Pledged Revenue for deposit with the Lender in accordance with the Loan Agreement.
To the extent lawfully possible, the Town will take no action that would have the effect of
reducing tax collections that constitute Pledged Revenue.
ATTACHMENT C
5
(c) The Town agrees to pay to the Authority any Pledged
Property Tax Revenues when, as and if received by the Town, but which are due and owing to
the Authority pursuant to the Urban Renewal Plan.
7. SUBORDINATION. The Authority’s obligations pursuant to this
Agreement, including the Prior Advances, are subordinate to the Authority’s obligations for the
repayment of any current or future bonded indebtedness. For purposes of this Agreement, the
term “bonded indebtedness,” “bonds” and similar terms describing the possible forms of
indebtedness include all forms of indebtedness that may be incurred by the Authority, including,
but not limited to, general obligation bonds, revenue bonds, revenue anticipation notes, tax
increment notes, tax increment bonds, and all other forms of contractual indebtedness of
whatsoever nature that is in any way secured or collateralized by revenues of the Authority, and
including the Loan.
8. GENERAL PROVISIONS. (a) Dispute Resolution. If a dispute arises
between the parties relating to this Agreement, the parties agree to submit the dispute to
mediation prior to filing litigation.
(b) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado and shall be subject to the
limitations, if any, that are applicable under the Charter or the ordinances of the Town.
(c) Separate Entities. Nothing in this Agreement shall be interpreted
in any manner as constituting the Town or its officials, representatives, consultants or employees
as the agents of the Authority, nor as constituting the Authority or its officials, representatives,
consultants or employees as agents of the Town. Each entity shall remain a separate legal entity
pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts,
obligations or liabilities of the other.
(d) Third Parties. Neither the Town nor the Authority shall be
obligated or liable under the terms of this Agreement to any person or entity not a party hereto,
other than the Lender.
(e) Modifications. No modification or change of any provision in this
Agreement shall be made, or construed to have been made, unless such modification is mutually
agreed to in writing by both parties with the prior written consent of the Lender and incorporated
as a written amendment to this Agreement. Memoranda of understanding and correspondence
shall not be construed as amendments to the Agreement.
(f) Entire Agreement. This Agreement shall represent the entire
agreement between the parties with respect to the subject matter hereof and shall supersede all
prior negotiations, representations or agreements, either written or oral, between the parties
relating to the subject matter of this Agreement and shall be independent of and have no effect
upon any other contracts.
ATTACHMENT C
6
(g) Severability. If any provision of this Agreement is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
(h) Notices. All notices and other communications hereunder shall be
sufficiently given and shall be deemed given when delivered or mailed by first class mail,
postage prepaid, addressed as follows:
If to the Town:
Town of Avon, Colorado
100 Mikaela Way
P.O. Box 975
Avon, Colorado, 81620
Attention: Town Manager
If to the Authority:
Avon Urban Renewal Authority
100 Mikaela Way
P.O. Box 975
Avon, Colorado, 81620
Attention: Executive Director
The Town or the Authority may, by notice given hereunder, designate any further
or different addresses to which subsequent notices or other communications shall be sent.
(i) Termination. This Agreement may not be terminated by either
party so long as the Loan or other Additional Obligations of the Authority are outstanding. So
long as the Authority does not have any outstanding Loans or Additional Obligations, and does
not owe any amounts to the Town under this Agreement, either party may terminate this
Agreement in writing upon thirty (30) days written notice to the other party.
(j) Assignment. This Agreement shall not be assigned, in whole or in
part, by either party without the written consent of the other and of the Lender.
(k) Waiver. No waiver of a breach of any provision of this Agreement
by either party shall constitute a waiver of any other breach or of such provision. Failure of
either party to enforce at any time, or from time to time, any provision of this Agreement shall
not be construed as a waiver thereof. The remedies reserved in this Agreement shall be
cumulative and additional to any other remedies in law or in equity.
ATTACHMENT C
7
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
AVON URBAN RENEWAL TOWN OF AVON, COLORADO
AUTHORITY
By: By:
Sarah Smith Hymes, Chairman Eric Heil, Town Manager
ATTEST: ATTEST:
Eric Heil, Executive Director/Secretary Brenda Torres, Town Clerk
APPROVED AS TO LEGAL FORM APPROVED AS TO LEGAL FORM
By: By:
Paul Wisor, Authority Attorney Paul Wisor, Town Attorney
ATTACHMENT C
Avon Urban Renewal Authority, Colorado
Tax Increment Revenue Refunding Loan
Series 2020
Preliminary Placement Summary
Proposals Due: 2:00PM MT, Friday, March 30, 2020
Term Sheet
Avon Urban Renewal Authority, Colorado
ATTACHMENT D
PREPARED FOR THE TOWN OF AVON PIPER SANDLER
Private Placement Refunding
Borrower Avon Urban Renewal Authority (the “URA”)
Financing Vehicle Tax Increment Revenue Refunding Loan
Amount Approximately $4,100,000
Use of Proceeds 1. Proceeds of the financing will be used to refund the outstanding
Series 2013 TIF Bonds and;
2. To pay certain costs of issuance related to the placement.
Purpose The proceeds of the financing will be used to refund the outstanding Series
2013.
Expected Closing April 22, 2020
Principal
Payments Annually beginning December 1, 2020 through December 1, 2028
Interest
Payments Semiannually on June 1 and December 1, December 1, 2020
Call Feature We would like to see rates structured with each the following options:
1. Prepayment at any time with no prepayment penalty
2. Prepayment on 12/1/2025 with no prepayment penalty
Rate Lock Please provide information regarding the ability to lock rates prior to
closing. Please provide terms of any rate lock agreements required to
lock rates.
Tax Status Bank Qualified Tax-Exempt
Additional
Obligations
Additional Obligation Restrictions.
(a) No Senior Obligations. The Borrower shall not incur any
additional obligations payable from or constituting a lien upon the Pledged
Revenue senior to the lien thereon of the Loan.
(b) No Additional Obligations Without Lender Consent.
The Borrower shall not, without the prior written consent of the Lender,
incur Additional Obligations payable from or constituting a lien upon the
Pledged Revenue on parity to the lien thereon of the Loan.
(c) Certain Tax Sharing Agreements Not Debt. The Avon
Station/Confluence IGA and any agreements entered into by the Borrower.
(d) Permitted Subordinate Obligations. The Borrower may
incur additional obligations secured by a lien on the Net Pledged Revenue
fully subordinate to the lien thereon of the Loan, provided that:
(i) such obligations shall be limited to the Borrower’s
obligations under the Cooperation Agreement and/or tax increment
sharing agreements entered into by the Borrower for the purpose of
financing the development or redevelopment of projects within the
Urban Renewal Project Area;
(ii) all agreements and other instruments pursuant to
which Permitted Subordinate Debt is incurred shall contain language
to the effect that such obligation is fully subordinate to the Loan;
ATTACHMENT D
PREPARED FOR THE TOWN OF AVON PIPER SANDLER
(iii) payments on such obligations shall be made not more
than once annually and only on a date in each year after the date on
which all payments due in that year on the Loan have been made or
the amount necessary to make such payments has been
accumulated and is on deposit in the Loan Payment Fund;
(iv) such obligations shall not be subject to acceleration;
(v) at the time of issuing or incurring such obligations, no
Event of Default shall have occurred and be continuing under this
Agreement; and
(vi) prior to the issuance or incurrence of the Permitted
Subordinate Debt then proposed, the Borrower shall provide Lender
with notice of the proposed issuance thereof.
The Town The Town is located in Eagle County (the “County”) on Interstate Highway
70. It is located 8 miles west of the Town of Vail and the Vail Ski Resort,
114 miles west of Denver, and 23 miles east of the Town of Eagle. The
Town encompasses approximately eight and one-quarter square miles of
land. In addition to the Town’s role as a center of commercial and retail
development for the area, the Town serves as a support base for the Vail,
Beaver Creek and Arrowhead resorts, with a number of various types of
accommodations for visitors to the area. The Town also is a major
residential community within the County.
The URA The Avon Urban Renewal Authority (the “Authority”) is a public
body corporate and politic, and has been duly created, organized,
established and authorized by the Town of Avon, Colorado (the “Town”)
to transact business and exercise its powers as an urban renewal
authority, all under and pursuant to the Colorado Urban Renewal Law,
constituting Part 1 of Article 25 of Title 31, Colorado Revised Statutes, as
amended (the “Act”); and
WHEREAS, the Authority has previously issued its Avon Urban
Renewal Authority, Tax Increment Revenue Bonds, Series 2013 in the
aggregate principal amount of $6,825,000, which Series 2013 Bonds are
currently outstanding in the aggregate principal amount of $4,560,000
(the “2013 Bonds”); and
WHEREAS, the Authority has previously issued its Avon Urban
Renewal Authority, Tax Increment Revenue Bonds, Series 2017 in the
aggregate principal amount of $3,000,000, which Series 2017 Bonds are
currently outstanding in the aggregate principal amount of $2,493,285.53
(the “2017 Bonds”); and
WHEREAS, an urban renewal plan, known as the “Town Center
West Area Urban Renewal Plan” (the “Urban Renewal Plan”), was duly
and regularly approved by the Town Council of the Town for an urban
renewal project under the Act
Security/Sources
of payment
“Pledged Property Tax Revenues” means, for each Fiscal Year, that
portion of the ad valorem property taxes produced by the levies at the rates
fixed each year by or for the governing bodies of the various taxing
jurisdictions within or overlapping the Urban Renewal Project Area upon
that portion of the valuation for assessment of all taxable property within
the Urban Renewal Project Area which is in excess of the Property Tax
ATTACHMENT D
PREPARED FOR THE TOWN OF AVON PIPER SANDLER
Base Amount, provided, however, that such amount shall be reduced by
any lawful collection fee charged by the County and further provided, that
the following shall be specifically excluded from the foregoing:
(a) tax increment revenues required to be remitted by the
Borrower to the Confluence Metropolitan District pursuant to the Avon
Station/Confluence IGA; and
(b) if authorized and approved by the Authority, ad valorem
property taxes produced by a mill levy of any special district formed after
May 28, 2009, pursuant to Title 32, Article 1, Colorado Revised Statutes,
which mill levy is in addition to, and not a replacement for, property taxes
levied by taxing entities in existence as of May 28, 2009.
“Pledged Revenue” means:
(a) Pledged Property Tax Revenues;
(b) all amounts appropriated to the Borrower by the Town in
accordance with the Moral Obligation Resolution;
(c) all amounts held in the funds and accounts established and
maintained hereunder together with investment earnings thereon,
including, without limitation, the Loan Payment Fund; and
(d) all other legally available moneys which the Borrower
determines, in its sole discretion, to deposit in the Loan Payment Fund.
Estimated
Amortization Series 2020
12/1/2020 $435,000
12/1/2021 430,000
12/1/2022 440,000
12/1/2023 445,000
12/1/2024 450,000
12/1/2025 460,000
12/1/2026 465,000
12/1/2027 470,000
12/1/2028 480,000
Legal Opinion Butler Snow LLP
Placement Agent Piper Sandler & Co
Documentation Legal documents will be drafted by the law firm of Butler Snow LLP, which
has been retained by the URA for this transaction. Butler Snow LLP will
render an opinion in customary form with respect to the validity of the tax-
exempt treatment of the loan. All legally required documents will be
available for review and comment by the Lender prior to the final action by
the Town.
Lenders will be required to sign an investor letter and tax certificate.
Additional
Information
Fiscal year-end 2018 audited financials and the 2020 budget are attached
for your reference.
(https://emma.msrb.org/EP1037288-EP803645-EP1205169.pdf)
ATTACHMENT D
PREPARED FOR THE TOWN OF AVON PIPER SANDLER
(https://www.avon.org/DocumentCenter/View/20017/2020-Adopted-
Budget)
Town’s other outstanding debt as of 12/31/2018 : $13,910,000
Issue Size
Series 2010 COP $4,555,000
Series 2014B COP $3,800,000
Series 2016 COP (partnership with
Eagle River Fire Protection District)
$5,555,000
URA’s other outstanding debt as of 12/31/2018 : $7,053,285.53
Issue Size
Series 2013 Tax Increment Revenue $4,560,000.00
Series 2017 Tax Increment Revenue $2,493,285.53
Request for
Proposal
All responses should include a fixed rate through the final maturity
of 12/1/2028 for the 2020 URA Loan. Responses should include basic
information about the responding entity along with its experience with
direct placements in the municipal bond market. Also include any
expenses that will be required to be paid by the Town, such as upfront fees
and Lender’s counsel.
Provide a rate as of March XX, 2020. Indicate how long a rate may be
locked without incurring additional costs or premium. Also, indicate the
additional cost in basis points to lock the rate one month prior to closing.
Responses are due 3/XX/20 by 2:00 PM Mountain Time. Electronic copies
are to be submitted to P. Jonathan Heroux and Marc Ragan at the email
addresses listed below.
All questions should be submitted to Jonathan Heroux, Matt Morrell, and
Marc Ragan.
P. Jonathan Heroux
Piper Sandler & Co.
Managing Director
pjonathan.heroux@psc.com
(303) 405-0848
Marc T. Ragan
Piper Sandler & Co.
Vice President
marc.ragan@psc.com
(303) 405-0845
Matt Morrell
Piper Sandler & Co.
Managing Director
matt.morrell@psc.com
ATTACHMENT D
PREPARED FOR THE TOWN OF AVON PIPER SANDLER
(612) 303-6642
ATTACHMENT D
*Preliminary; subject to change.
$4,540,000*
AVON URBAN RENEWAL AUTHORITY, COLORADO
TAX INCREMENT REVENUE REFUNDING BONDS, SERIES 2020
(As of March 13, 2020)
MARCH 2020 APRIL 2020
S M T W T F S S M T W T F S
1 2 3 4 5 6 7 1 2 3 4
8 9 10 11 12 13 14 5 6 7 8 9 10 11
15 16 17 18 19 20 21 12 13 14 15 16 17 18
22 23 24 25 26 27 28 19 20 21 22 23 24 25
29 30 31 26 27 28 29 30
Date Event Responsible
Parties
3/12/20 Engage Bond Counsel A/PA/BC
3/16/20 • Circulate draft RFP to financing group for comment
• Draft of legal documents sent to working group
PA
BC
3/23/20 Finalize & Send out RFP A/PA
3/24/20 1st Reading Authorizing Resolution ALL
3/30/20 Proposals Due A/PA
4/1/20 Review, negotiate, select & notify others A/PA
4/8/20 Revised legal documents sent to working group BC/PA
4/17/20 Documentation Finalized ALL
4/21/20 Pre-closing ALL
4/22/20 Close on 2020 TIF Loan ALL
Financing Team:
A Issuer Avon Urban Renewal Authority
P Purchaser TBD
PC Purchaser’s Counsel TBD
PA Placement Agent Piper Sandler
BC Bond Counsel Butler Snow
T Trustee TBD
ATTACHMENT E
TOWN OF AVON, COLORADO
MINUTES FOR THE URBAN RENEWAL AUTHORITY MEETING FOR DECEMBER 10, 2019
AVON TOWN HALL, 100 MIKAELA WAY
1.CALL TO ORDER & ROLL C ALL
Chairwoman Smith Hymes called the meeting to order at 6:07 p.m. A roll call was taken, and Authority
members present were Jennie Fancher, Scott Prince, Jake Wolf, Amy Phillips, Chico Thuon and Tamra
Underwood. Also present were Treasurer Scott Wright, Town Manager Eric Heil, Police Chief Greg Daly, Town
Attorney Paul Wisor, Executive Assistant to the Town Manager Ineke de Jong, and Authority Clerk Brenda
Torres.
2.APPROVAL OF AGENDA
Video Start time: 01:03:34
Authority member Underwood moved to approve to agenda as presented. Authority member Prince
seconded the motion and the motion passed unanimously.
3.PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA
Video Start time: 01:03:51
No comments were made.
4.BUSINESS ITEMS
Video Start time: 01:04:00
4.1. RESOLUTION 19-02, AMENDING THE 2019 URA BUDGET
4.2. RESOLUTION 19-03, ADOPTING THE 2020 URA BUDGET
Treasurer Scott Wright presented Resolution 19-02 and Resolution 19-03 and mentioned to the Authority
members that both Resolutions may be adopted together. Chairwoman Smith Hymes opened the Public
Hearing and no public comments were made. Authority member Prince moved to approve Resolution 19-
02 Amending the 2019 URA Budget and Resolution 19-03 Adopting the 2020 URA Budget. Vice
Chairwoman Phillips seconded the motion and the motion passed unanimously by Authority members
present.
4.3. APPROVAL OF FEBRUARY 12, 2019 URA MEETING MINUTES
Authority member Wolf moved to approve the minutes from February 12, 2019 URA meeting.
Authority member Fancher seconded the motion and the motion passed unanimously.
5.ADJOURNMENT
There being no further business to come before the Authority, Chairwoman Smith Hymes moved to adjourn
the meeting. The time was 6:10 p.m.
TOWN OF AVON, COLORADO
MINUTES FOR THE URBAN RENEWAL AUTHORITY MEETING FOR DECEMBER 10, 2019
AVON TOWN HALL, 100 MIKAELA WAY
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, Authority Clerk
APPROVED:
Sarah Smith Hymes ___________________________________
Amy Phillips
Jake Wolf
Chico Thuon
Jennie Fancher
Scott Prince
Tamra Underwood
FISCAL YEAR 2020
FINANCIAL REPORT
March 24, 2020
______________________________________________________________________________________
1. Financial Report Cover Memo
2. Sales and Accommodations Tax Reports – January
3. Accommodations Tax Report – January
4. Cigarette & Tobacco Tax – January
5. Real Estate Transfer Tax Report and Monthly Detail – January
6. Recreation Center Admissions – January
7. Recreation Center Program Fees - January
8. General Fund Year-To-Date Expenditures - January
9. Fleet Maintenance Fund Year-To Date Expenditures - January
10. Mobility Fund Year-To Date Expenditures - January
TOWN COUNCIL REPORT
To: Honorable Mayor Sarah Smith Hymes and Avon Town Council
From: Nelly Burns and Joel McCracken, Senior Accountants
Meeting Date: March 24, 2020
Agenda
Topic: Fiscal Year 2020 Financial Report – January data
SUMMARY
Revenues
SALES TAX
Sales tax revenue for the month of January totaled $841,459.85, a 2.72% increase from the previous
year and a 1.07% negative variance over the cumulative monthly budgets, which is based on the
average of the relative monthly percentages of taxes collected over a 5-year period.
Monthly sales tax collections by industry compared to one year ago have increased $4,267 for
Home/Garden, $18,543 for Sporting Goods Retail-Rental, and $6,794 for Miscellaneous Retail, and
$18,101 for Other. Monthly sales tax collections have decreased ($3,150) for Grocery-Specialty-
Health, ($1,419) for Liquor Stores, ($10,483) for Accommodations, ($10,305) for Restaurants-Bars,
and ($67) for Service-Related businesses.
Year-to-date sales tax revenues through January have increased 2.72% over the previous year,
which is $22,280.52 over the previous year and $9,097.89 under the original budget estimates.
-
50,000.00
100,000.00
150,000.00
200,000.00
250,000.00
Sales Tax Comparison by Industry
Jan-20 Jan-19
New and Renewed
Business, Contractor & Sales Tax Licenses Issued in January
Business License - Fixed Location 23
Business License - Home Occupation 9
Business License - Short Term Accommodation 30
Business License – Special Event 0
Business License - Vendor 79
Contractor License 12
Liquor License 0
Sales Tax License 40
Grand Total 193
ACCOMMODATIONS TAX
Accommodations tax revenue for month of January totaled $188,669.38, a 4.65% decrease from the
previous year and a 7.36% negative variance from the cumulative monthly budgets, which is based on
the average of the relative monthly percentages of taxes collected over a 5 -year period.
Monthly accommodations tax collections increased $541.65 for time shares. However, tax collections
decreased ($9,661.71) for hotels and ($89.78) for vacation rentals compared to January 2019.
-
20,000.00
40,000.00
60,000.00
80,000.00
100,000.00
120,000.00
140,000.00
Time Shares Hotels Vacation Rentals
Accommodation Tax by Type
Jan-19 Jan-20
CIGARETTE AND TOBACCO TAX (Now reported monthly)
Tobacco Tax (40% rate) revenue for the month of January totaled $17,252.91 an 214.43% increase from
the previous year.
Cigarette Tax revenue for month of January totaled $12,926.46, an increase of 94.38% increase from the
previous year.
REAL ESTATE TRANSFER TAX
Real estate transfer tax collections for the month of January totaled $179,460, an increase of 147.46%
from the previous year and a positive variance of 124.02% over the cumulative monthly budgets,
which is based on average of the relative monthly percentages of taxes collected over a 5-year period.
Real Estate Transfer Tax (RETT) Transactions January
RETT Transactions which paid 2% tax 8
RETT Exemptions for Primary Residence 2
RETT Exemptions for Full Exemption 5
Deed Restricted & Tax Exempt 1
Grand Total 16
RECREATION CENTER ADMISSIONS
-
2,000.00
4,000.00
6,000.00
8,000.00
10,000.00
12,000.00
14,000.00
16,000.00
18,000.00
20,000.00
Tobacco Tax
40% Rate
Tobacco Tax
Per Pack Fee
Tobacco Tax
Interest
Tobacco Tax
Penalty
Number of
Packs Sold*
Tobacco Tax Revenues 2019 v 2020 January
Jan-19 Jan-20
January admission fees totaled $79,231.98 an 8.56% increase from the previous year. This is a 4.81%
positive variance compared to the monthly budget, which is based on average of the relative monthly
percentages of taxes collected over a 5-year period.
RECREATION CENTER PROGRAM FEES
January program fees totaled $27,872.08 which is a 6.81% increase from the previous year. This is a
7.33% positive variance compared to the monthly budget, which is based on average of the relative
monthly percentages of taxes collected over a 5-year period.
$-
$20,000
$40,000
$60,000
$80,000
$100,000
2016 2017 2018 2019 2020
Recreation Center Admissions January
$-
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
$35,000
2016 2017 2018 2019 2020
Recreation Center Program Fees January 2020
Expenditures
General Fund expenditures through January 2020 total 8.24% of the total adopted budget. These
expenditures include insurance premiums, computer services, events, community grants, equipment
replacement, contract services, janitorial and legal services.
Fleet expenditures through January 2020 total 9.92% of the total budget. These costs include
expenditures of stock parts, fleet maintenance, debt service interest, and insurance premiums.
Mobility funds are January 2020 total 4.29% of the total budget. These expenditures include costs of
diesel, fleet maintenance, equipment replacement, capital lease payments, and insurance premiums .
TOWN OF AVON
ACCOMMODATIONS TAX
2020 Actual vs. Budget
Budget YTD Collections Budget % change % change
2015 2016 2017 2018 2019 2020 2020 Variance 2019 to budget
January 164,361.04$ 168,424.63$ 190,207.82$ 181,588.99$ 197,879.22$ 203,657$ 188,669.38$ (14,987.38)$ -4.65%-7.36%
February 175,056.31 185,370.53 194,804.88 186,147.24 203,190.38 213,159
March 183,650.29 217,387.54 201,008.55 206,783.36 246,969.61 238,260
April 34,825.13 60,916.55 38,340.02 33,275.27 31,824.90 44,949
May 28,002.56 37,357.48 39,961.98 42,618.10 47,259.21 44,050
June 53,397.46 73,591.08 83,723.31 94,803.78 92,411.81 89,800
July 86,301.22 107,595.18 119,300.76 119,458.02 131,645.50 127,345
August 75,107.71 87,674.05 100,628.23 98,193.15 110,203.30 106,472
September 60,417.74 68,139.11 81,837.60 85,257.82 89,362.90 86,886
October 38,706.72 45,738.23 48,223.10 53,236.86 45,781.00 52,284
November 34,328.47 37,570.50 46,397.08 47,934.88 70,385.29 53,397
December 198,421.26 200,114.56 189,505.28 185,008.67 219,964.12 224,092
Total 1,132,575.91$ 1,289,879.44$ 1,333,938.61$ 1,334,306.14$ 1,486,877.24$ 1,484,349.00$ 188,669.38$ (14,987.38)$ -4.65%-7.36%
0.88 0.97 1.00 0.90 1.00
Actual Collections
$150,000
$155,000
$160,000
$165,000
$170,000
$175,000
$180,000
$185,000
$190,000
$195,000
$200,000
$205,000
2016 2017 2018 2019 2020
Accommodations Tax Collections for January
TOWN OF AVON
REAL ESTATE TRANSFER TAX
2020 Actual vs. Budget
Budget YTD Collections $ Change % of Change % change
2015 2016 2017 2018 2019 2020 2020 2019 2019 to budget
January 48,640.40$ 64,422.00$ 107,390.00$ 264,063.20$ 72,520.00$ 80,110.48$ 179,460.00$ 106,940.00$ 147.46%124.02%
February 85,479.08 200,850.86 270,815.26 269,578.51 298,730.16 161,857.96
March 168,744.22 265,061.65 254,737.53 344,556.74 180,819.76 174,580.77
April 125,266.30 159,046.06 249,938.93 122,312.21 312,899.53 139,424.03
May 237,971.08 184,987.10 377,490.82 351,236.93 278,241.63 205,646.07
June 294,434.84 307,127.24 703,419.85 343,140.71 237,143.93 271,130.98
July 396,838.68 259,977.94 219,208.74 272,420.41 86,755.74 177,641.40
August 152,380.93 186,483.40 592,467.49 343,249.80 400,027.60 240,835.14
September 291,223.61 321,957.68 423,013.80 311,022.50 604,158.92 280,638.63
October 172,855.22 641,688.59 497,642.58 330,671.24 359,782.63 288,011.16
November 169,328.38 315,109.37 425,402.80 211,818.76 570,245.09 243,322.46
December 225,862.90 588,514.66 227,918.50 196,105.45 1,597,177.98 407,800.92
Total 2,369,025.64$ 3,495,226.55$ 4,349,446.30$ 3,360,176.46$ 4,998,502.97$ 2,671,000$ 179,460.00$ 106,940.00$ 147.46%124.02%
Budget 2,671,000.00
Variance, Favorable (Unfavorable)(2,491,540.00)$
Actual Collections
$0
$50,000
$100,000
$150,000
$200,000
$250,000
$300,000
2016 2017 2018 2019 2020
Year
Real Estate Transfer Tax for January
TOWN OF AVON
SALES TAX
2020 Actual vs. Budget
Budget YTD Collections Budget % of change % change
2015 2016 2017 2018 2019 2020 2020 Variance from 2019 from Budget
January 765,195.68$ 743,689.78$ 792,562.03$ 825,816.08$ 819,179.33$ 850,557.74 841,459.85$ (9,097.89)$ 2.72%-1.07%
February 788,999.06 774,754.00 798,923.33 785,412.03 809,165.90 852,887.87
March 875,499.53 945,795.71 918,657.55 1,014,399.70 1,130,669.61 1,052,845.17
April 403,560.42 438,198.18 425,727.85 394,986.15 424,685.32 449,835.05
May 353,840.11 404,872.55 394,689.30 418,628.58 422,685.32 429,911.46
June 570,424.51 693,675.00 650,794.65 757,498.52 725,840.03 732,404.65
July 601,516.82 690,342.23 682,024.81 696,374.00 755,668.37 738,373.30
August 572,647.57 593,398.26 618,515.44 639,569.12 670,351.82 666,938.78
September 595,235.68 667,949.51 690,883.92 680,720.64 841,688.74 749,268.59
October 423,701.53 451,303.71 458,645.68 490,977.90 445,742.30 489,322.10
November 438,315.55 445,336.04 435,975.05 456,409.92 514,924.82 493,759.82
December 1,159,160.45 1,247,832.82 1,183,666.21 1,264,626.23 1,460,062.64 1,361,116.47
Total 7,548,096.91$ 8,097,147.79$ 8,051,065.82$ 8,425,418.87$ 9,020,664.20$ 8,867,221$ 841,459.85$ (9,097.89)$ 2.72%-1.07%
Actual Collections
$680,000
$700,000
$720,000
$740,000
$760,000
$780,000
$800,000
$820,000
$840,000
$860,000
2016 2017 2018 2019 2020
Year
Sales Tax Collections for January 2020
TOWN OF AVON
RECREATION CENTER ADMISSION FEES
2020 Actual vs. Budget
Budget YTD Collections Budget % of change % change
2015 2016 2017 2018 2019 2020 2020 Variance from 2019 from Budget
January 62,607.00$ 64,723.00$ 74,674.00$ 88,582.09$ 72,981.86$ 75,597.73$ 79,231.98$ 3,634.25$ 8.56%4.81%
February 63,838.00 68,506.00 86,342.00 75,952.60 64,868.20 74,753.28
March 77,902.00 81,664.00 76,023.00 79,071.20 78,824.90 81,818.49
April 61,760.00 55,452.00 67,398.00 61,817.56 53,085.20 62,278.55
May 43,119.00 50,067.40 54,337.00 50,252.60 63,563.00 54,340.97
June 55,052.00 58,430.50 58,044.00 62,135.02 68,601.20 62,850.36
July 61,472.00 66,399.80 65,873.60 72,441.40 88,528.43 73,756.96
August 63,233.00 66,388.60 76,558.30 73,573.10 70,491.40 72,827.33
September 36,846.00 44,719.00 49,017.70 49,315.70 55,598.60 48,967.57
October 75,818.00 61,167.00 51,833.00 59,692.77 58,055.60 63,745.23
November 29,570.00 71,384.00 72,114.00 126,981.80 51,281.50 73,053.33
December 77,672.00 112,201.00 169,092.78 186,927.10 276,537.00 171,010.21
Total 708,889.00$ 801,102.30$ 901,307.38$ 986,742.94$ 1,002,416.89$ 915,000$ 79,231.98$ 3,634.25$ 8.56%4.81%
.
Actual Collections
$-
$10,000
$20,000
$30,000
$40,000
$50,000
$60,000
$70,000
$80,000
$90,000
$100,000
2016 2017 2018 2019 2020
Recreation Center Admissions January
TOWN OF AVON
RECREATION CENTER PROGRAM FEES
2020 Actual vs. Budget
Budget YTD Collections Budget % of change % change
2015 2016 2017 2018 2019 2020 2020 Variance from 2018 from Budget
January 23,252.13$ 17,133.04$ 28,815.64$ 32,368.50$ 26,095.68$ 25,967.40$ 27,872.08$ 1,904.68$ 6.81%7.33%
February 20,734.70 22,435.59 28,915.58 35,279.57 23,197.74 26,556.90
March 15,184.33 19,132.72 29,016.16 28,669.46 27,280.96 24,262.61
April 18,360.00 18,538.66 26,397.13 45,827.30 31,132.63 28,528.39
May 22,175.69 39,447.85 44,605.22 37,300.42 31,335.76 35,568.00
June 31,443.66 33,369.05 45,885.37 37,231.17 34,568.93 37,120.62
July 29,162.29 44,969.88 46,745.40 49,968.33 43,607.82 43,620.46
August 31,055.94 46,025.52 52,318.40 64,320.46 52,610.60 50,104.37
September 18,209.25 36,240.11 30,853.05 41,463.74 34,704.93 32,843.65
October 20,380.77 22,068.60 26,881.06 26,782.63 22,588.68 24,144.25
November 20,095.40 30,866.78 25,906.72 24,952.65 20,749.47 24,931.27
December 21,918.03 30,294.89 37,309.30 26,328.09 25,937.72 28,840.07
Total 271,972$ 360,523$ 423,649$ 450,492$ 373,811$ 382,488$ 27,872.08$ 1,904.68$ 6.81%7.33%
Actual Collections
$-
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
$35,000
2016 2017 2018 2019 2020
Recreation Center Program Fees January 2020
Dept./Div.2020 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
Public Works:
434 Fleet Maintenance 1,905,281$ 41,636$ 147,313$ 1,716,333$ 9.92%
Total Operating Expenditures 1,905,281 41,636 147,313 1,716,333 9.92%
TOTAL EXPENDITURES 1,905,281$ 41,636$ 147,313$ 1,716,333$ 9.92%
Expenditure Summary
Fleet Maintenance Enterprise Fund
January 2020 Expenditures to Date
Dept./Div.2020 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
General Government:
111 Mayor and Town Council 270,662$ 1,000$ 55,909$ 213,753$ 21.03%
112 Boards and Commissions 19,649 - 783 18,866 3.99%
113 Town Attorney 155,000 - - 155,000 0.00%
115 Town Clerk 134,843 1,200 12,854 120,789 10.42%
121 Municipal Court 148,478 24,938 4,876 118,664 20.08%
131 Town Manager 579,654 - 28,189 551,465 4.86%
133 Community Relations 268,766 - 22,646 246,120 8.43%
134 Economic Development 140,250 - 12,500 - 8.91%
136 Special Events 798,042 930 17,343 - 2.29%
137 Community Grants 92,000 - 57,280 - 62.26%
Total General Government 2,607,344 28,068 212,379 2,366,897 9.22%
Human Resources Department:
132 Human Resources 566,168 8,815 38,683 518,670 8.39%
Finance & IT Department:
141 Finance 993,978 1,831 63,472 928,675 6.57%
143 Information Systems 441,785 64,784 22,426 354,575 19.74%
149 Nondepartmental 615,557 177,300 21,057 417,200 32.22%
Total Finance & IT 2,051,320 243,915 106,956 1,700,450 17.10%
Total General Gov't Departments 5,224,832 280,798 358,018 4,586,017 12.23%
Community Development:
212 Planning 314,587 - 20,851 293,736 6.63%
213 Building Inspection 185,515 930 12,595 171,990 7.29%
Total Community Development 500,102 930 33,446 465,726 6.87%
Police Department:
311 Administration 889,491 11,022 58,341 820,128 7.80%
312 Patrol 3,100,349 72,575 166,253 2,861,521 7.70%
313 Investigations 331,071 499 22,388 308,184 6.91%
Total Police 4,320,911 84,096 246,983 3,989,832 7.66%
Public Works:
412 Engineering 273,385 2,300 19,522 251,563 7.98%
413 Roads and Bridges 2,633,092 78,805 211,824 2,342,463 11.04%
415 Parks 639,740 16,764 3,428 619,548 3.16%
418 Buildings & Facilities 1,277,853 57,768 49,079 1,171,006 8.36%
Total Public Works 4,824,070 155,637 283,853 4,384,580 9.11%
Recreation Department:
514 Administration 269,711 3,519 19,050 247,142 8.37%
515 Adult Programs 50,032 - 2,522 47,510 5.04%
516 Aquatics 662,235 31,062 45,984 585,189 11.63%
518 Fitness 138,324 - 6,393 131,931 4.62%
519 Guest Services 361,889 3,947 24,300 333,642 7.81%
521 Youth Programs 213,422 869 10,653 201,900 5.40%
523 Community Swim Program 185,243 2,790 9,568 172,885 6.67%
Total Recreation 1,880,856 42,187 118,469 1,720,200 8.54%
Contingency - -
Operating Transfers 2,725,000 - 1,870,000
1,870,000
TOTAL OPERATING EXPENDITURES 19,475,771$ 563,647$ 1,040,769$ 17,016,355$ 8.24%
Department Expenditure Summaries
General Fund
January 2020 Expenditures to Date
Dept./Div.2020 Encumbrances Year To Date Available
Number Description Budget Outstanding Expenditures Balance YTD/Budget
EXPENDITURES
431 Transit Administration 277,931$ 23,982$ 15,967$ 237,982$ 14.37%
432 Transit Operations 3,144,688 - 104,424 3,040,265 3.32%
436 Wash Bay 179,309 9,500 10,052 159,757 10.90%
437 Programs 379,838 - 6,974 372,864 1.84%
Total Operating Expenditures 3,981,766 33,482 137,417 3,810,867 4.29%
TOTAL EXPENDITURES 3,981,766$ 33,482$ 137,417$ 3,810,867$ 4.29%
Expenditure Summary
Mobility Enterprise Fund
January 2020 Expenditures to Date
970-748-4413 mpielsticker@avon.org
TO: Honorable Mayor Smith Hymes and Council members
FROM: Matt Pielsticker, Planning Director
RE: Photo Monuments of Avon’s History
DATE: March 19, 2020
SUMMARY: Work progresses on one of the Town Core “activation” elements identified in the Strategic
Plan. The adopted 2020 Strategic Plan includes the following directive “Install Photo Monuments- Design
and install photo monuments around Avon’s commercial core to memorialize Avon’s history. Submit design,
estimated costs and proposed locations to Town Council for public review prior to construction.”
The Town and the Eagle Valley Library District both have a deep catalog of historical photographs taken in
Avon. Based on the budget and the current estimate to produce and install each sign, we intend to move
forward with eight (8) signs in 2020. Written content will be developed to accompany each sign – like the
Nottingham Power Plant placard pictured on Page 2.
On the following pages is a summary of the intended subject matter, locations, example photographs, and
photographs of the physical locations where possible. The information and descriptions in this report are
not intended to be a complete summary of sign content; final details of sign design, content, and pricing will
come back to the Town Council when ready.
BUDGET: The Capital Improvements Budget includes $30,000 for Pedestrian Mall and Town Core
activation, with musical instruments and photo monuments. Layout, fabrication, and installation are
currently estimated at $1,000 - $1,500 per sign depending on location. Staff is working to lower costs and
achieve efficiencies with a larger sign order.
Photo Monument Sign Locations in Town Core
Page 2 of 10
NOTTINGHAM POWER PLANT (EXISTING MONUMENT EXAMPLE FOR SIZE & DESIGN CONTEXT)
The Nottingham Power Plant monument was installed in 2018 to honor the history of the restored waterwheel project
on the banks of the Eagle River, behind Canyon Run Condominiums. This sign was a custom install, and uses the
Eagle River Valley trail hand/guardrail. Written content was developed by the Avon Historic Preservation Advisory
(HPAC) Committee.
Nottingham Power Plant Sign on Eagle Valley Trail
Page 3 of 10
LOCATION 1: AVON AMUSEMENT ASSOCIATION & ORIGINAL BRIDGE
The “Gyp-Bluff” rises proud behind and above the Avon Amusement Association’s (AAA) location at the Town’s
southern terminus. The AAA was a community center located at a busy crossroads near the current location of the
Basecamp Condominiums.
Avon Amusement Association Original Bridge over Eagle River
Approximate Location of Photo Monument
Page 4 of 10
LOCATION 2: UTE NATIVE AMERICANS
The early Eagle River Valley, including the area that was to become Avon, was first inhabited by the Utes. These
great Native American horsemen spent winters in the mild climate to the west and returned to, in their language, “the
shining mountains”, each summer to hunt mule deer, elk and the great buffalo. The intention is to incorporate this
sign into the 2020 landscaping improvements project at Nottingham Park’s western entrance.
Southern Ute Archives
Page 5 of 10
LOCATION 3: HARRY A. NOTTINGHAM IN PARK
The namesake for Avon’s crown jewel Harry A. Nottingham Park will be honored near the parks western entrance.
When the park was dedicated a sign previously stood in the general area between the Lake Street bus stop and the
park restroom building.
Approximate Location of Photo Monument
Page 6 of 10
LOCATION 4: METCALF CABIN AT NOTTINGHAM PARK
The Metcalf Cabin on is an early 20th century remnant of the Avon community and its agricultural heritage. It
originated from the farmstead established between 1900 and 1910 and is Avon’s oldest remaining structure. A
refurbishment of the structure is planned for 2020 and as part of that project an interpretive sign will be created.
Metcalf Cabin
Page 7 of 10
LOCATION 5: NOTTINGHAM RANCH AT BUCK CREEK
The Nottingham Ranch was developed by George Clyde Nottingham, a member of Avon’s most prominent pioneer
family. Clyde was born in Guthrie, Iowa in 1875 to William and Nancy Angeline Nottingham. When he was four
years old, the family migrated west to the Colorado mining camps of Red Cliff and Gilman in the upper Eagle River
country. They eventually settled downriver in the area now occupied by Avon. There they acquired land and built a
growing ranching and farming enterprise that came to include several farmsteads and many hundreds of acres.
The intent is to have a sign on the Nottingham Road bike path, near “Norman” the bridge over Buck Creek.
Nottingham Ranch near Buck Creek
Page 8 of 10
LOCATION 6: LETTUCE SHED LANE
In the 1920’s head lettuce was the crop of choice in Avon and neighboring Beaver Creek and Bachelor Gulch. Box
cars stood at the Avon Depot, loaded with ice from the Minturn ice house (the ice had been cut the preceding winter
at Pando up near Tennessee Pass) and readied for freshly cut lettuce heads delivered in crates by farmers and their
ranch hands including wives. These refrigerated rail cars shipped Avon crops as far as the east coast providing fresh
lettuce weeks after the nation's standard lettuce harvest was gone.
This photo monument would stand at the intersection of Lettuce Shed Lane and the Main Street Pedestrian Mall.
Stanley Fruit Sign Lettuce Sheds near Depot
Page 9 of 10
LOCATION 7: HAHNEWALD BARN
Over the decades between 1910 and 1972, it was integral to ranching operations that were conducted by three
successive families, the Hahnewalds (1910-1915), the Kroellings (1915-1948), and the Nottinghams (1948-1972).
During this long period, the building was used to shelter livestock and store hay. The barn served as a storage facility
associated with the adjacent Avon Wastewater Treatment Plant until 2019 when it was dismantled.
This sign would be located on the Eagle Valley Trail near the southwest corner of the ERWSD property.
1960s Photo of Barn Interior
Page 10 of 10
LOCATION 8: DENVER RIO GRAND RAILROAD
For the pioneers of the Eagle River valley, rail service was especially needed to ship livestock, agricultural
products, and loads of timber harvested from the area’s mountainsides. Residents of the valley from Avon
to the west were left dependent upon their wagon road and unable to ship larger quantities of agricultural
products, livestock and timber to market. However, they didn’t have to wait very long for the situation to
change. Between the fall of 1881 and spring of 1882, the D&RG completed a preliminary survey of a route
from Rock Creek down the Eagle River to the Colorado River and then on to Glenwood Springs and Aspen.
Four years later, in late 1886, the final route of what was termed the Eagle River Extension was surveyed
and mapped. Because numerous ranchers and farmers already held title to the land along the route, the
railroad had to negotiate with each owner to create a right-of-way. The entire route, more than 58 miles
from Rock Creek to Glenwood Springs, was completed and opened for traffic on 6 October 1887.
This sign would be located at the Avon Station pedestrian railroad crossing.
Early photo of Denver Rio Grand Railroad in Avon
Approximate location of DRGR Sign near Avon Station