TC Council Packet 01-23-2001Town Council Meetings
Roll Call Check Sheet
Date: 1/23/01
Michael Brown
Debbie Buckley
Peter Buckley
Rick Cuny
Mac McDevitt
Buz Reynolds
Judy Yoder , V1 2
Roll calls are called at start of meeting and for Ordinances. Do not call Mayor except for
meeting roll call or to break a tie vote.
Seating arrangements from west to east: Brown, P. Buckley, Cuny, Yoder, McDevitt, D.
Buckley, Reynolds
Staff Present:
Bill Efting
Larry Brooks
Burt Levin
Kris Nash
Jacquie Halburnt
Scott Wright
Jeff Layman
Charlie Moore
Norm Wood
Meryl Jacobs
./ Bob Reed
Harry Taylor
Mike Matzko
Other Staff:
STATE OF COLORADO )
COUNTY OF EAGLE )
TOWN OF AVON )
SS
NOTICE IS HEREBY GIVEN THAT A WORK SESSION OF THE TOWN COUNCIL
OF THE TOWN OF AVON, COLORADO, WILL BE HELD JANUARY 23, 2001, AT
3:00 PM IN THE MUNICIPAL BUILDING, 400 BENCHMARK ROAD, AVON,
COLORADO FOR THE PURPOSE OF DISCUSSING AND CONSIDERING THE
FOLLOWING:
3:00 PM - 3:15 PM
3:15 PM - 4:15 PM
4:15 PM - 4:45 PM
4:45 PM - 5:00 PM
5:00 PM - 5:15 PM
1.) Legal Matters (Executive Session)
2.) Town Center Plan
3.) Wildridge Shuttle
4.) Staff Updates
5.) Community Development Update
Consent Agenda Questions
Council Committee Updates------- - --- --
AND SUCH OTHER BUSINESS AS MAY COME BEFORE THE COUNCIL
THIS MEETING IS OPEN TO THE PUBLIC
TOWN OF AVON, COLORADO
BY:
Kristen Nash
Town Clerk
POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON
ON JANUARY 19,2001:
AVON MUNICIPAL BUILDING IN THE MAIN LOBBY
AVON BEAVER CREEK TRANSIT BUS STOP AT AVON CENTER
AVON RECREATION CENTER
CITY MARKET IN THE MAIN LOBBY
AV I
C 0 L 0 R
Ce: O
Subject:
Wednesday, December 27, 2000 1:02 PM
Council - Everyone
Bill Efting; Kris Nash; Larry Brooks; Scott Wright
Barbara Andrews - Dickens Faire
I am attaching several attachments for Council's review, as follows:
1. Draft Complaint against Barbara Andrews Events, Inc.
2. Confidential Memo of Advice concerning the viability of the suit and sundry
other matters.
3. Copy of the minutes and transcript of the discussions which Andrews had with
the Council on Oct. 24 and 31. (Thank you Kris for the quick turnaround of the
transcripts.)
As stated in the Confidential Memo, Council can discuss whether the Town will
sue during an executive session. However, formal action on the question of
whether to sue or not must be taken during a meeting open to the public (such as
bymotion or resolution).
C
MEMORANDUM re
draft complaint....
L
Barbara Andrews Work
Session 0...
Complaint.doc 00-10-31 Work
Session.doc
C E?q
worksession Barbara Andrews
00-10.24.doc Council Meetin...
(If a council member wants a hard copy of these docs in their mail box please
ask.)
Avon Municipal Court
Post Office Box 975
400 Benchmark Road
Avon, Colorado 81620
970-748-4001
970-949-9139 Fax
970-845-7708 TTY
CONFIDENTIAL MEMORANDUM
ATTORNEY WORK PRODUCT
FROM: Burt Levin
TO: Hon. Mayor and Council
CC: Bill Efting, Larry Brooks, Scott Wright
RE: Barbara Andrews - Dickens Faire
DATE: December 27, 2000
Based on my review of the discussions between Council and Barbara Andrews which
took place on October 24 and 31, I have drafted a two count Complaint against Barbara
Andrews Events, Inc., which seeks a judgment in the amount of $20,000.
Count I alleges that a contract was created: in consideration of the Town's $20,000
sponsorship Andrews's company obliged itself to produce the event and provide the
Town with the benefits of sponsorship outlined in the promotional literature (which
basically amounts to designation as a sponsor).
Count II alleges that the court should impose a constructive trust over $20,000 in the
hands of Andrews's company in favor of the Town, on the ground that otherwise her
company would be unjustly enriched at the expense of the Town.
The Council must now decide as a body whether it wants suit to be filed against
Andrews's company.
A few observations are in order. Winning this suit is a long shot. The transcript of the
discussions between Barbara Andrews and the Council reveal council members stating:
"Personally, I'd like to see if there's some way we could donate some money"; "I would
like to give some money too for the same reason"; and "Well, it looks like you've got a
donation, we just don't know how much." These words are likely to compel a
conclusion to a judge that Avon made a gift to Barbara Andrews Events, Inc.
However, Barbara did make statements to the effect that the event would be produced;
that she had Beaver Creeks permission; and that proceeds would go to charity. On that
basis, I believe there is a good faith basis to make the claims made in the draft Complaint.
As you are no doubt aware, no lawyer can file a lawsuit unless there is a good faith basis
for the claims made.
So, I would ask that you review the transcript of the discussions Barbara had with the
Council. Evaluate whether as a body the money was given as a gift or pursuant to
contract; or whether the Town would be unjustly deprived of the money if it is not
returned. Then, as a body, decide whether you want me to file the suit.
As I indicated previously, even if the Town wins a lawsuit against Barbara's company,
we can only collect on the judgment if there is money available to satisfy the judgment.
That is getting ahead of ourselves now, but there is a realistic chance that we could win a
judgment we can never collect.
Which brings me to the last point. At present I do not have any reason to sue her
individually. Her literature and invoice were in the corporate name. Although there may
be a basis to attempt to pierce the corporate veil based on information which could come
to light in discovery if a suit were filed, there is not sufficient evidence at hand now to
include Barbara Andrews as a defendant in her individual capacity.
I would suggest this matter be taken up by the Council at the next work session, Jan. 9th
It can be discussed in executive session under the heading of "Determining positions
relative to matters that may be the subject of negotiation; developing strategy for
negotiation; and instructing negotiators. C.R.S. § 24-6-402(4)(e). I will be out of the
office on vacation Jan. 9th, otherwise another basis for going into executive session to
discuss this matter would have been "Conferences with an attorney for the local public
body for the purposes of receiving legal advice on specific legal questions." Id. § 24-6-
402(4)(b). Or, if you prefer, we can discuss the matter during the Jan. 23rd meeting,
which I will be present for.
A copy of the transcript of the discussions which were had with the Council is being
emailed to you with a copy of the draft Complaint.
2
DISTRICT COURT, COUNTY OF EAGLE, COLORADO
Case No.
COMPLAINT
TOWN OF AVON
P.O. Box 975
Avon, CO 81620
Plaintiff
V.
BARBARA ANDREWS EVENTS, INC.
P.O. Box 1554
Avon, CO 81620
Defendant
Town of Avon, Plaintiff, by its attorney, Burton H. Levin, files this
Complaint against Barbara Andrews Events, Inc., Defendant, and states as follows:
1. Plaintiff is a Colorado home rule municipal corporation located within
Eagle County, Colorado.
2. Defendant is a corporation doing business in Eagle County, Colorado.
3. On October 24, 2000, Defendant, through its authorized agent Barbara
Andrews (hereinafter "Andrews"), approached the Town of Avon Council and
requested Plaintiff be a funding sponsor for the First Annual Beaver Creek Charles
Dickens Holiday Faire 2000.
4. On October 24, 2000, Andrews, who is the Chief Executive Officer of
Defendant, represented to Plaintiff that Defendant had been given permission by
the Beaver Creek Resort Company to produce on December 21 St' 22"d, and 23",
2000, a holiday production within the Beaver Creek Resort.
5. On October 24, 2000, Andrews, on behalf of Defendant, further
represented to Plaintiff that the holiday event would consist, in the words of
Defendant's promotional literature, of the following: "The entire Beaver Creek
Plaza will be transformed into Dickension & Victorian England; circa 1800's with
specific emphasis on 1880-1906. Authentic to the period will be: All Sets and
props, Vendor & Food Booths, Food & Beverage Menus (with 20th Century `Poetic
License'), Decor, Character Actors, Costumes and Entertainment."
6. On October 24, 2000, Andrews, on behalf of Defendant, further
represented to Plaintiff, that all proceeds from the holiday event would be given by
Defendant to literacy programs in Eagle County or other similar charitable causes.
7. On October 24, 2000, Plaintiff invited Defendant to return on October 31,
2000, to discuss the matter of the holiday production during a work session of
Plaintiff's Town Council.
8. On October 31, 2000, Andrews, on behalf of Defendant, appeared before
the Avon Town Council and requested Plaintiff to agree to become a sponsor for
the holiday production.
9. Specifically, on October 31, 2000, Andrews, on behalf of Defendant,
presented Plaintiff with promotional literature concerning the holiday production,
which stated that in consideration of sponsorship of the production in the amount
of $20,000 Plaintiff would receive, among other things, the following:
* designation as one of the Official Product Sponsors of the holiday
production;
* designation as a sponsor in local, Aspen and Denver newspapers and
magazines;
* designation as a sponsor in radio and TV promotions;
* designation as a sponsor in all event programs;
* designation as a sponsor in all event banners;
* designation as a sponsor during an award ceremony to be televised
and radio broadcast;
* meal tickets;
* the possibility of lodging facilities during the holiday production;
* the possibility of a promotional extension program to be developed
and implemented as mutually agreed upon by Plaintiff and
Defendant.
10. On October 31, 2000, Plaintiff agreed to contract with Defendant as
solicited by Defendant, with the terms of the contract to be as stated above:
Plaintiff would sponsor the holiday production to the extent of $20,000, and, in
consideration of such sponsorship, Plaintiff would receive from Defendant the
sponsorship privileges and benefits stated above in paragraph 9 hereof in
connection with the holiday production to be staged by Defendant on December
21St through 23`d, 2000.
11. The terms of the contract between Plaintiff and Defendant are stated,
among other places, in the above referred to promotional literature which
Defendant presented to Plaintiff, a copy of which is incorporated herein and
attached hereto as Exhibit 1.
12. On or about November 1, 2000, pursuant to the contract between the
parties, Defendant presented Plaintiff with a "Bronze Sponsorship Invoice" in the
amount of $20,000. (A copy of said invoice is incorporated herein and attached
hereto as Exhibit 2.)
13. On or about November 3, 2000, Plaintiff delivered to Defendant a check
in the amount of $20,000 (as evidenced by Exhibit 3 attached hereto and
incorporated herein).
14. Defendant negotiated Plaintiff's $20,000 check.
15. Defendant never obtained permission from Beaver Creek Resort
Company to produce the Dickens Holiday Faire, and no such fair was produced at
any time in 2000 (nor has an event as described by Defendant been produced as of
the date hereof).
16. Plaintiff has made a demand that Defendant restore to it $20,000, and
Defendant has refused such demand.
COUNT I - BREACH OF CONTRACT
17. Paragraphs 1 - 16 hereof are incorporated by reference.
18. In accepting Plaintiff's sponsorship money in the amount of $20,000,
and subsequently failing to produce the holiday production, including failing to
provide to Plaintiff the contracted for benefits of sponsorship, Defendant breached
its contract with Plaintiff.
WHEREFORE, Plaintiff demands that a judgment be entered in its favor
against Defendant in the amount of $20,000.
COUNT II - CONSTRUCTIVE TRUST
19. Paragraphs 1 - 18 hereof are incorporated by reference.
20. Plaintiff was induced to present Defendant with a check in the amount
of $20,000 based on the following representations to Plaintiff by Defendant:
* that Beaver Creek Resort Company had in fact given it permission
to stage the holiday production in Beaver Creek December 21 - 23,
2000;
* that Defendant would in fact produce the event;
* that Plaintiff would in fact receive the benefits of sponsorship as
stated in Defendant's promotional literature;
*that proceeds from the production would in fact be given to
charitable literacy projects in Eagle County, Colorado.
21. In view of Defendant's failure to produce the holiday event, including
its failure to provide proceeds of the event to charity, Defendant would be unjustly
enriched if allowed to retain the $20,000 which Plaintiff provided to Defendant
based on Defendant's unfulfilled representations and promises.
22. In order to prevent an unjust enrichment of Defendant, a constructive
trust, in the amount of $20,000, should be imposed against Defendant in favor of
Plaintiff.
4
WHEREFORE, Plaintiff demands that a constructive trust, in the amount of
$20,000, be imposed against Defendant in favor of Plaintiff.
Respectfully submitted.
Burton H. Levin # 027056
Town Attorney
P.O. Box 975
Avon, CO 81620
970-748-4087
Memo
Date: January 16, 2001
To: Honorable Mayor and Town Council
Thru: Bill Efting, Town Manager
From: Michael Matzko, Director of Community Development
Re: Town Center Plan Overview
Introduction
This memo is to follow up on our discussion during the November 28, 2000 work session
regarding the Town Center planning process. During that work session Council and Staff
briefly discussed the planning process undertaken last year by the Town Center property
owners, which resulted in a preliminary Town Center Plan prepared by RNL on March 6,
2000. Staff recommended that if Council wishes to develop a formal Town Center Plan
(at the Town's expense), it would involve public participation and likely require the
services of planning, design and other consultants.
The Town Council then directed Staff to prepare a general overview of the process, costs
and timeline to formally prepare and adopt a Town Center Plan. The overview includes
the following elements:
• Purpose of a Town Center Plan
• Process for Creating a Plan
• Timeline
• Costs
Discussion
The 1996 Avon Comprehensive Plan defines the Town Center as the area bounded on the
east by Avon Road, on the north by I-70, on the west by Benchmark Road and on the
south by the railroad right-of-way.
In 1998 the Town Center was effectively extended south of the railroad with the approval
of urban development standards for the Confluence site. The Comprehensive Plan has not
been updated to reflect this, however.
Purpose of a Town Center Plan
The Comprehensive Plan is the fundamental policy document adopted by Town Council.
Its purpose is to provide overall direction regarding land use, property development (both
public and private), economic development, and the Town's interaction with the
community. The Comprehensive Plan includes significant direction (goals and policies)
regarding the desired character and functioning of the Town Center.
A Town Center Plan is an effective way to translate the Comprehensive Plan's general
direction into a much more specific working document that clearly articulates the
community's vision. Through a combination of text and graphics, this document would
serve as a framework to communicate to property owners, investors, business owners and
others the Town's expectations for development. The practical benefit of such a
document is arguably greater now than ever, given the imminent need to tie together the
costly and complex elements of transportation, hot beds, pedestrian access, and building a
critical mass of retail and commercial in the Town Center.
The Plan, along with revised zoning and subdivision regulations, would form the basis
for evaluating development applications and public infrastructure. It would help leverage
private and public development with the efficiencies of coordinated infrastructure,
transportation, communication and architectural design.
The ultimate purpose of having a Town Center Plan is to guide development so as help to
create an economically vital and sustainable Town Center.
Process for Creating a Plan
Creating and implementing a Town Center Plan will involve the joint efforts of Council,
P&Z, staff, business and property owners and the public. Likely it will also involve one
or more consultants to help coordinate the process, facilitate meetings, perform various
analyses and produce draft and final versions of the Plan. Since the Plan would be
adopted as a formal Town policy document, its creation would be funded by the Town.
The general steps in creating a plan are as follows:
Consultant Selection
• Prepare and issue a Request for Proposals (RFP) for consulting services.
• Interview short list and select a consultant.
Town Center Plan Preparation
• Assess the Town Center as it is today: existing and approved development projects;
infrastructure (such as roads, pedestrian facilities, utilities, transit, and parking); and
existing regulations (such as design, zoning and subdivision).
• Establish goals and objectives for the plan, which is a statement of what the plan is to
include and accomplish, rather than what the end product will say about a given topic.
This could also include implementation goals and milestones.
• Gather public and stakeholder input through on-site workshops, information displays,
public meetings, mailings, surveys, etc.
• Prepare draft(s) and final version of the Plan for review and comment by Council,
P&Z, staff and the public.
Adoption
• Adopt the Plan.
• Update regulations such as zoning, subdivision and/or design guidelines.
• Update Capital Improvements Program to incorporate public improvements.
Timeline
A draft plan could be completed between August 1 and September 15, 2001, with the
final version completed and adopted between August 30 and October 1, 2001.
Regulation updates may take an additional 30 to 60 days.
The Capital Improvements Program update would occur as part of the normal budget
cycle.
Costs
An initial estimate of consulting fees for preparing a Town Center Plan is approximately
$70,000, which would include definition of public and private actions necessary to
implement the Plan.
Updating the Town's existing regulations to implement the plan could be incorporated in
a much-needed general update of our regulations, and therefore should result in little or
no additional cost.
Implementation
Following adoption of the Plan, the Town would engage in the engineering design phase
of infrastructure improvements. This phase would require additional time and funding to
complete, and is not included in this proposal.
Physical implementation of the Town Center Plan would occur over a period of years and
involve both public and private expenditures.
Public Improvements would be constructed according to the Public Improvements Plan,
and assigned priority through the Capital Improvements Program.
Combined improvements, such as a public parking structure, in-town transit system
(including a Cable Liner) may be financed through existing or new Metropolitan
District(s).
Conclusion
The opportunities for developing a vibrant, economically sustainable Town Center have
never been greater. The public and private investments contemplated in the Town Center
during the next few years are enormous. A Town Center Plan or its equivalent is a way to
effectively leverage those investments and help maintain Avon's growth as the heart of
the valley.
Memo
To: The Honorable Mayor and Town Council
From: Harry N. Taylor, Director of Transportation
Thru: Bill Efting, Town Manager
Date: January 18, 2001
Re: Wildridge Shuttle Service Review
Summary:
The purpose of this report is to provide current and historic cost information regarding
the operation of the Wildridge Shuttle.
Discussion:
Attached are three exhibits reporting the historic operational data on all Avon routes, the
historic data on the Wildridge Shuttle, a start-up cost summary and a cost summary for a
trial operating period of the Wildridge Shuttle.
Town Manager Comments:
iJ.. /
encl.
Town of Avon
Department of Transportation
Avon Route Summary
18-Jan-01
Route Skier Town Hurd Lane Wildridge
Shuttle Shuttle Shuttle Shuttle
Operating Period (Winter) (Year) (Year) (Winter)
(Only) (Round) (Round) (Only)
(From 1998) (From 1999)
Year Operating Total
-- $ per Hr.
1995 $34.25
Ridership 149,011 50,972 0 1,055 245,450
Serv. Hr. 5,279 3,271 0 979 13,274
TotalOp.$ $180,806 $112,032 $0 $33,531 $454,635
$/Passenger $1.85 $1.21 $2.20 $0.00 $31.78 $1.85
1996 $35.82
Ridership 162,340 57,961 6,009 1,264 271,189
Serv. Hr. 5,886 3,294 750 936 14,076
TotalOp.$ $210,837 $117,991 $26,865 $33,528 $504,202
$/Passenger $1.86 $1.30 $2.04 $4.47 $26.52 $1.86
1997 $40.09
Ridership 162,513 66,656 30,290 1,281 294,171
Serv. Hr. 5,558 2,755 2,660 950 14,500
TotalOp.$ $222,820 $110,448 $106,639 $38,086 $581,305
$/Passenger $1.98 $1.37 $1.66 $3.52 $29.73 $1.98
1998 $42.31
Ridership 160,788 118,683 34,497 1,897 348,635
Serv. Hr. 5,534 7,030 2,781 820 18,140
TotalOp.$ $234,144 $297,439 $117,664 $34,694 $767,503
$/Passenger $2.20 $1.46 $2.51 $3.41 $18.29 $2.20
1999 $43.12
Ridership 140,347 166,152 76,905 0 396,725
Serv. Hr. 5,421 6,756 6,585 0 19,853
Total Op.$ $233,754 $291,319 $283,945 $0 $856,061
$/Passenger $2.16 $1.67 $1.75 $3.69 $0.00 $2.16
2000 $45.96
Ridership 164,297 222,247 107,683 0 506,861
Serv. Hr. 5,895 6,879 6,612 0 21,591
TotalOp.$ $270,934 $316,159 $303,888 $0 $992,322
$/Passenger $1.96 $1.65 $1.42 $2.82 $0.00 $1.96
The Total Operating Cost Per Hour does not include $7.00 per hour Replacement Cost.
Wildridge Shuttle
1998 Winter Operations
Assumptions:
Operating hours: Peak: 6:00 am to 9:00 am
1 vehicle operating 6 hours per day
Winter season - 145 days
System type: Dial-A-Ride
Operating Cost per Hr
Operating Cost:
Service Hours:
Ridership:
Cost per passenger
4:00 pm to 7:00 pm
$42.31 --
$34,694 - - -
820
1,897
$18.29
Wildridge Shuttle
2001 Start-up Cost Summary
Assumptions:
2 vehicles operating for combined 26 hrs per day
Winter season - 145 days
System type: Route Deviation
Operating hours: Peak: 2 vehicles
Off-Peak: 1 vehicle
Operating Cost per Hr. $45.96
Operating Cost: $173,269
Service Hours: 3,770
Equipment Cost:
2 ADA Vans $71,650
Total Start-up Cost $244,919
6:00 am to 9:30 am
4:00 pm to 7:30 pm
9:30 am to 4:00 pm
7:30 pm to 1:00 am
Wildridge Shuttle
2001 Trial Period
Cost Summary
Assumptions:
2 vehicles (People Movers) operating 26 hrs per day
Summer season - 153 days (June - October)
System type: Route deviation
Operating hours: Peak 2 vehicles
Operating Cost per Hr
Trial Period:
Operating Cost
Service Hours:
Off-Peak 1 vehicle
$45.96
1 st month $35,849
2 months $72,893
3 months $109,936
4 months $145,785
5 months $182,829
1 st month 780
2 months 1,586
3 months 2,392
4 months 3,172
5 months 3,978
6:00 am to 9:30 am
4:00 pm to 7:30 pm
9:30 am to 4:00 pm
7:30 pm to 1:00 am
Equipment Cost: - $0 - , we will use existing vehicles for trial period.
The Trial Period Cost can be determined from the Operating Cost section
above depending on the length of the Trial Period; for example a two month
trial period will cost $72,893.
•
NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Avon
Metropolitan District, Eagle County, Colorado (the "District") will be held at the Avon Town Hall, 400
Benchmark Road, Avon, Colorado, on January 23, 2001, at 5:20 p.m., for the purpose of making a final
determination to issue general obligation bonds of the District, adopting a bond resolution, and for the
transaction of such other business as may come before said meeting.
AVON METROPOLITAN DISTRICT
MEETING AGENDA
January 23, 2001 - 5:20 PM
1. Call to Order / Roll Call
2. Resolutions
a.) A Resolution of Avon Metropolitan District Authorizing the Issuance and Sale of the
District's General Obligation Refunding Bonds, Series 2001 and Supplemental "B"
U C,/ Onterest Registered Coupons; Approving a Registrar Agreement, An Escrow Agreement,
A Letter of Representations, and a Preliminary Official Statement in Connection
Therewith; Authorizing the Refunding Project; Providing Details Concerning the Bonds
1 and Funds Appertaining Thereto; Ratifying Acts Previously Taken Concerning Said
?y Bonds; Repealing All Resolutions in Conflict Herewith; and Providing Other Matters
Relating Thereto
3. Unfinished Business
4. New Business
5. Other Business
6. Adjournment
SOURCES AND USES OF FUNDS
Avon Metropolitan District
General Obligation Refunding Bonds, Series 2001
Dated Date - 02/01/2001
Delivery Date - 02/06/2001
Sources:
Bond Proceeds:
Par Amount of Bonds
"B" Interest Proceeds
Accrued Interest
Net Premium
$3,705,000.00
241,969.80
2,078.61
8,906.35
Total Sources
Uses:
Refunding Escrow Deposits:
Cash Deposit
Open Market Purchases
Other Fund Deposits:
Accrued Interest
Delivery Date Expenses:
Cost of Issuance
Underwriter's Discount
Bond Insurance
Total Uses
$3,957,954.76
$ 632.50
3,849,829.34
$3,850,461.84
$ 2,078.61
$ 45,865.07
33,549.24
26,000.00
$ 105,414.31
$3,957,954.76
Jan 23, 2001 9:01 a.m. Prepared by Hanifen, Imhoff Page 1
BOND DEBT SERVICE
Avon Metropolitan District
General Obligation Refunding Bonds, Series 2001
Period
Ending
Principal
Coupon
Interest Compounded
Interest
Debt Service Annual
Debt Service
02/06/2001
05/01/2001 183,483.00 3.500% 37,415.00 1,517.00 222,415.00
11/01/2001 258,486.80 ** 74,830.00 1,513.20 334,830.00 557,245.00
05/01/2002 160,000.00 4.000% 70,830.00 230,830.00
11/01/2002 170,000.00 4.000% 67,630.00 237,630.00 468,460.00
05/01/2003 170,000.00 4.000% 64,230.00 234,230.00
11/01/2003 175,000.00 4.000% 60,830.00 235,830.00 470,060.00
05/01/2004 180,000.00 4.000% 57,330.00 237,330.00
11/01/2004 180,000.00 4.000% 53,730.00 233,730.00 471,060.00
05/01/2005 185,000.00 4.000% 50,130.00 235,130.00
11/01/2005 185,000.00 4.000% 46,430.00 231,430.00 466,560.00
05/01/2006 190,000.00 4.000% 42,730.00 232,730.00
11/01/2006 195,000.00 4.000% 38,930.00 233,930.00 466,660.00
05/01/2007 200,000.00 4.000% 35,030.00 235,030.00
11/01/2007 200,000.00 4.000% 31,030.00 231,030.00 466,060.00
05/01/2008 210,000.00 4.000% 27,030.00 237,030.00
11/01/2008 210,000.00 4.000% 22,830.00 232,830.00 469,860.00
05/01/2009 220,000.00 4.125% 18,630.00 238,630.00
11/01/2009 220,000.00 4.125% 14,092.50 234,092.50 472,722.50
05/01/2010 225,000.00 4.200% 9,555.00 234,555.00
11/01/2010 230,000.00 4.200% 4,830.00 234,830.00 469,385.00
3,946,969.80 828,072.50 3,030.20 4,778,072.50 4,778,072.50
Jan 23, 2001 9:01 am Prepared by Hanifen, Imhoff (Finance 4.313 SwestcoAVONMET-2000,2001) Page 2
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PRIOR BOND DEBT SERVICE
Avon Metropolitan District
General Obligation Refunding Bonds, Series 2001
Period
Ending
Principal
Coupon
Interest
Debt Service Annual
Debt Service
02/06/2001
05/01/2001 120,000 8.300% 153,757.50 273,757.50
11/01/2001 130,000 8.300% 148,777.50 278,777.50 552,535.00
05/01/2002 130,000 8.300% 143,382.50 273,382.50
11/01/2002 140,000 8.300% 137,987.50 277,987.50 551,370.00
05/01/2003 145,000 8.300% 132,177.50 277,177.50
11/01/2003 150,000 8.300% 126,160.00 276,160.00 553,337.50
05/01/2004 155,000 8.300% 119,935.00 274,935.00
11/01/2004 165,000 8.300% 113,502.50 278,502.50 553,437.50
05/01/2005 170,000 8.300% 106,655.00 276,655.00
11/01/2005 175,000 8.300% 99,600.00 274,600.00 551,255.00
05/01/2006 185,000 8.300% 92,337.50 277,337.50
11/01/2006 190,000 8.300% 84,660.00 274,660.00 551,997.50
05/01/2007 200,000 8.300% 76,775.00 276,775.00
11/01/2007 210,000 8.300% 68,475.00 278,475.00 555,250.00
05/01/2008 215,000 8.300% 59,760.00 274,760.00
11/01/2008 225,000 8.300% 50,837.50 275,837.50 550,597.50
05/01/2009 235,000 8.300% 41,500.00 276,500.00
11/01/2009 245,000 8.300% 31,747.50 276,747.50 553,247.50
05/01/2010 255,000 8.300% 21,580.00 276,580.00
11/01/2010 265,000 8.300% 10,997.50 275,997.50 552,577.50
3,705,000 1,820,605.00 5,525,605.00 5,525,605.00
Jan 23, 2001 9:01 am Prepared by Hanifen, Imboff (Finance 4.313 SwestcoAVONMET-2000,2001) Page 8
SAVINGS
Avon Metropolitan District
General Obligation Refunding Bonds, Series 2001
Present Value
Prior Refunding Refunding Refunding Annual to 02/06/2001
Date Debt Service Debt Service Receipts Net Cash Flow Savings Savings @ 4.1578577%
02/06/2001 2,078.61 -2,078.61 2,078.61 2,078.61
05/01/2001 273,757.50 222,415.00 222,415.00 51,342.50 50,846.05
11/01/2001 278,777.50 334,830.00 334,830.00 -56,052.50 -2,631.39 -54,379.98
05/01/2002 273,382.50 230,830.00 230,830.00 42,552.50 40,442.04
11/0112002 277,987.50 237,630.00 237,630.00 40,357.50 82,910.00 37,574.75
05/01/2003 277,177.50 234,230.00 234,230.00 42,947.50 39,171.81
11/01/2003 276,160.00 235,830.00 235,830.00 40,330.00 83,277.50 36,035.28
05/01/2004 274,935.00 237,330.00 237,330.00 37,605.00 32,916.16
11/01/2004 278,502.50 233,730.00 233,730.00 44,772.50 82,377.50 38,391.83
05/01/2005 276,655.00 235,130.00 235,130.00 41,525.00 34,881.97
11/01/2005 274,600.00 231,430.00 231,430.00 43,170.00 84,695.00 35,525.26
05/01/2006 277,337.50 232,730.00 232,730.00 44,607.50 35,960.61
11/01/2006 274,660.00 233,930.00 233,930.00 40,730.00 85,337.50 32,166.03
05/01/2007 276,775.00 235,030.00 235,030.00 41,745.00 32,296.20
11/01/2007 278,475.00 231,030.00 231,030.00 47,445.00 89,190.00 35,958.48
05/01/2008 274,760.00 237,030.00 237,030.00 37,730.00 28,013.12
11/01/2008 275,837.50 232,830.00 232,830.00 43,007.50 80,737.50 31,281.16
05/01/2009 276,500.00 238,630.00 238,630.00 37,870.00 26,983.47
11/01/2009 276,747.50 234,092.50 234,092.50 42,655.00 80,525.00 29,773.94
05/01/2010 276,580.00 234,555.00 234,555.00 42,025.00 28,736.77
11/01/2010 275,997.50 234,830.00 234,830.00 41,167.50 83,192.50 27,577.11
5,525,605.00 4,778,072.50 2,078.61 4,775,993.89 749,611.11 749,611.11 602,230.65
Saving s Summary
PV of savings from cash flow 602,230.65
Plus: Refunding funds on hand 865.07
Net PV Savings 603,095.72
Jan 23, 2001 9:01 am Prepared by Hanifen, Imhoff (Finance 4.313 SwestcoAVONMET-2000,2001) Page 5
SUMMARY OF REFUNDING RESULTS
Avon Metropolitan District
General Obligation Refunding Bonds, Series 2001
Dated Date 02/01/2001
Delivery Date 02/06/2001
Arbitrage yield 4.157858%
Escrow yield 4.946611%
Bond Par Amount 3,946,969.80
True Interest Cost 4.199812%
Average Life 5.169
Par amount of refunded bonds 3,705,000.00
Average coupon of refunded bonds 8.300000%
Average life of refunded bonds 5.656
PV of prior debt to 02/06/2001 @ 4.157858% 4,532,106.80
Net PV Savings 603,095.72
Percentage savings of refunded bonds 16.277887%
Percentage savings of refunding bonds 15.279968%
Jan 23, 2001 9:01 am Prepared by Hanifen, Imhoff (Finance 4.313 SwestcoAVONMET-2000,2001) Page 6
NOTICE OF SPECIAL MEETING
TO THE BOARD OF DIRECTORS
OF THE AVON METROPOLITAN DISTRICT
COUNTY OF EAGLE, STATE OF COLORADO
NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of
the Avon Metropolitan District, Eagle County, Colorado (the "District") will be held at the Avon
Town Hall, 400 Benchmark Road, Avon, Colorado, on January 23, 2001, at 5:15 p.m., for the
purpose of making a final determination to issue general obligation bonds of the District,
adopting a bond resolution, and for the transaction of such other business as may come before
said meeting.
Chairman of the Board and President
Avon Metropolitan District
ACKNOWLEDGMENT OF NOTICE AND
CONSENT TO SPECIAL MEETING
We, the undersigned members of the Board of Directors of the District, do hereby
acknowledge receipt of the foregoing notice of the special meeting of January 23, 2001, and we
hereby waive any and all irregularities, if any, in such notice and in the manner of service thereof
upon us, and consent and agree to the holding of such meeting at the time and place specified in
said notice, and to the transaction of any and all business which may come before such meeting.
Board of Directors, Avon Metropolitan
District
RESOLUTION
A RESOLUTION OF AVON METROPOLITAN DISTRICT
AUTHORIZING THE ISSUANCE AND SALE OF THE
DISTRICT'S GENERAL OBLIGATION REFUNDING BONDS,
SERIES 2001 AND SUPPLEMENTAL "B" INTEREST
REGISTERED COUPONS, APPROVING A REGISTRAR
AGREEMENT, AN ESCROW AGREEMENT, A LETTER OF
REPRESENTATIONS, AND A PRELIMINARY OFFICIAL
STATEMENT IN CONNECTION THEREWITH; AUTHORIZING
THE REFUNDING PROJECT; PROVIDING DETAILS
CONCERNING THE BONDS AND FUNDS APPERTAINING
THERETO; RATIFYING ACTS PREVIOUSLY TAKEN
CONCERNING SAID BONDS; REPEALING ALL
RESOLUTIONS IN CONFLICT HEREWITH; AND PROVIDING
OTHER MATTERS RELATING THERETO.
NOW, THEREFORE, BE IT RE SOLVED BY THE BOARD OF DIRECTORS OF
AVON METROPOLITAN DISTRICT:
Section 1. Definitions. The terms defined in this section shall have the
designated meanings for all purposes of this Resolution and of any amendatory or supplemental
resolution, except where the context by clear implication requires otherwise.
A. Act means Article 1 of Title 32, Colorado Revised Statutes.
B. Beneficial Owner means any person for which a Participant acquires an
interest in the Bonds or Registered Coupons.
C. Board means the Board of Directors of the District.
D. Bond Insurer means MBIA Insurance Corporation or its successors.
E. Bond Insurance Policy means the Financial Guaranty insurance policy issued
by the Bond Insurer guaranteeing the payment of principal and interest on the Bonds.
F. Bonds means the Avon Metropolitan District General Obligation Refunding
Bonds, Series 2001, in the aggregate principal amount approved by the President or the Treasurer
in the Sale Certificate, issued pursuant to this Resolution.
-2-
G. Business Day means a day on which banks located in the city in which the
Principal Office of the Paying Agent is located are not required or authorized to be closed and on
which the New York Stock Exchange is not closed.
H. Code means the Internal Revenue Code of 1986, as amended to the date of
delivery of the Bonds and Registered Coupons.
1. Continuing Disclosure Certificate means the Continuing Disclosure Certificate
executed by the District and dated the date of issuance and delivery of the Bonds and Registered
Coupons, as it may be amended from time to time in accordance with the terms hereof.
J. County means Eagle County, Colorado.
K. County Board means the Board of County Commissioners of the County.
L. C.R.S. means the Colorado Revised Statutes, as amended and supplemented
as of the date hereof.
M. Depository means any securities depository as the District may provide and
appoint, in accordance with the guidelines of the Securities and Exchange Commission, which shall
act as securities depository for the Bonds and Registered Coupons.
N. District means Avon Metropolitan District, a quasi-municipal corporation and
political subdivision of the State, and its successors.
0. District Court means the District Court of the County.
P. DTC means The Depository Trust Company, New York, New York, and its
successors and assigns.
Q. Escrow Agreement means the Escrow Agreement dated as of February 1,
2001 between the District and the Escrow Bank.
R. Escrow Bank means The Bank of Cherry Creek, N.A., in Denver, Colorado.
S. Federal Securities means only direct obligations of, or obligations the
principal of and interest on which are unconditionally guaranteed by, the United States (or ownership
interests in any of the foregoing) and which are not callable prior to their scheduled maturities by
the issuer thereof (or an ownership interest in any of the foregoing).
T. Insurance Pang Agent means State Street Bank and Trust Company, N.A.,
in New York, New York, or its successors under the Bond Insurance Policy.
-3-
U. Letter of Revresentations means the letter of representations from the District
to DTC to induce DTC to accept the Bonds and Registered Coupons as eligible for deposit at DTC.
V. Official Statement means the final Official Statement with respect to the
Bonds and Registered Coupons.
W. Outstandinja means, as of any date of calculation, all Bonds and Registered
Coupons theretofore executed, issued and delivered by the District except:
(i) Bonds or Registered Coupons theretofore canceled by the District,
Paying Agent, or Registrar or surrendered to the District or Registrar for cancellation;
(ii) Bonds or Registered Coupons in lieu of, or in substitution for, which
other Bonds or Registered Coupons shall have been executed, issued and delivered by the
District and authenticated by the Registrar unless proof satisfactory to the Registrar is
presented that any such Bonds or Registered Coupons are duly held by the lawful Registered
Owners thereof; or
(iii) Bonds or Registered Coupons deemed to have been paid within the
meaning of Section 19 hereof.
X. Owner or Registered Owner means any person who is the registered owner
of any Bond or Registered Coupon as shown on the registration books kept by the Registrar.
Y. Participants mean any broker-dealer, bank, or other financial institution from
time to time for which DTC or other Depository holds the Bonds or Registered Coupons.
Z. Paying Agent means The Bank of Cherry Creek, N.A., in Denver, Colorado,
or its successors and assigns, acting as paying agent for the Bonds and Registered Coupons.
AA. Preliminary Official Statement means the Preliminary Official Statement with
respect to the Bonds and Registered Coupons dated January 10, 2000.
BB. President means the President of the District.
CC. Principal Office means the principal office of the Registrar or Paying Agent,
as the case may be, as designated in writing to the District. The Principal Office of The Bank of
Cherry Creek, N.A., is currently 3033 East First Avenue, in Denver, Colorado.
DD. Purchase Contract means the Bond Purchase Agreement between the District
and the Underwriter, executed by the President or the Treasurer.
-4-
EE. Record Date means the close of business on the fifteenth day (whether or not
a business day) of the calendar month immediately preceding such interest payment date.
FF. Redemption Date means May 1, 2001.
GG. Refunded Bond Requirements means the principal amount of the Refunded
Bonds to be redeemed, a premium of 1 % of the principal amount so redeemed, and accrued interest
to the Redemption Date.
HH. Refunded Bonds means the Avon Metropolitan District General Obligation
Refunding and Improvement Bonds, Series 1990, in the original principal amount of $5,135,000.
II. Refunding Act means the Public Securities Refunding Act, constituting
Article 56 of Title 11, C.R.S.
JJ. Refunding Project means: a) the payment of the Refunded Bond
Requirements on the Redemption Date; and b) the payment of the costs of issuing the Bonds and
Registered Coupons.
KK. Registered Coupon means a coupon designated "Supplemental "B" Interest
Registered Coupon" which is in fully registered form evidencing supplemental interest on the Bond
or Bonds to which it is related and which, at the time of initial delivery of the Bonds to the
Underwriter, shall accompany the Bond or Bonds so delivered.
LL. Re ig_strar means The Bank of Cherry Creek, N.A., in Denver, Colorado, or
its successors and assigns, acting as registrar for the Bonds and Registered Coupons.
MM. Registrar Agreement means the Registrar and Paying Agent Agreement, dated
as of February 1, 2001, between the District and the Registrar.
NN. Sale Certificate means a certificate executed by the President or the Treasurer
dated on or before the date of delivery of the Bonds and Registered Coupons, setting forth the "A"
and "B" rates of interest on the Bonds, the price at which the Bonds and Registered Coupons will
be sold, the total principal amount of the Bonds, and the amount of principal maturing on each date,
subject to the parameters and restrictions contained in this Resolution.
00. Secretary means the Secretary of the District.
-5-
PP. Special Record Date means a special date fixed to determine the names and
addresses of Registered Owners for purposes of paying interest on a special interest payment date
for the payment of defaulted interest.
QQ. State means the State of Colorado.
RR. Supplemental Act means the Supplemental Public Securities Act, constituting
Title 11, Article 57, Part 2, C.R.S.
SS. Term Bonds means Bonds that are payable on or before their specified
maturing dates from sinking fund payments established for that purpose and calculated to retire such
Bonds on or before their specified maturity dates.
TT. Town means the Town of Avon, Colorado.
UU. Town Council means the Town Council of the Town.
VV. Treasurer means the Treasurer of the District or his or her successors.
WW. Underwriter means Hanifen, Imhoff Division of Stifel, Nicolaus & Company,
Incorporated, Denver, Colorado.
Section 2. Recitals.
A. The District is a quasi-municipal corporation and political subdivision of the
State duly organized and existing as a metropolitan district pursuant to the provisions of the Act.
B. The members ofthe Board have been duly elected or appointed and qualified.
C. Pursuant to an order and decree of the District Court dated June 12, 1998, the
District was dissolved and its existence and purposes were limited to securing payment in full of the
principal and interest of its outstanding bonded indebtedness.
D. Pursuant to an order of the District Court which amended the decree
dissolving the District, the District is authorized to accomplish the Refunding Project, subject to the
following parameters and restrictions: (i) the maturity date for the Bonds shall not be later than
November 1, 2010; and (ii) the interest rate of the Bonds shall not exceed 7% per annum.
E. The District has heretofore issued the Refunded Bonds, currently outstanding
in the aggregate principal amount of $3,705,000 bearing interest at the rate of 8.30% per annum and
maturing on November 1, 2010.
-6-
F. The Refunded Bonds are subject to redemption prior to maturity, at the option
of the District, on November 1, 2000 and on any interest payment date thereafter at redemption price
equal to the principal amount redeemed, plus a premium of I% of the principal amount redeemed
and accrued interest thereon to the redemption date.
G. The District is not delinquent in the payment of any of the principal of and
interest on the Refunded Bonds.
H. The Board has determined and does hereby determine that the interests of the
District require the refunding; paying and discharging of the Refunded Bond Requirements.
I. The Board hereby determines to use the proceeds ofthe Bonds and Registered
Coupons to effect the Refunding Project.
J. Pursuant to Section 11-56-104 ofthe Refunding Act, the Bonds may be issued
to refund the Refunded Bonds for the purposes of reducing the total principal and interest payable
on the Refund Bonds and effecting other economies.
K. The Board has determined and does hereby determine that the Refunding
Project will reduce the total principal and interest costs of the Refunded Bonds and effect other
economies.
L. Pursuant to Article X, Section 20 of the State Constitution, the Bonds and
Registered Coupons may be issued without an election if they are issued at a lower interest rate than
the Refunded Bonds.
M. There have been presented to the Board the proposed forms of the following
documents: (i) the Registrar Agreement; (ii) the Escrow Agreement; (iii) the Letter of
Representations; (iv) the Preliminary Official Statement; and (v) the Continuing Disclosure
Certificate.
Section 3. Ratification. All actions not inconsistent with the provisions of this
Resolution heretofore taken by the Board and the officers of the District directed toward effecting
the Refunding Project and the sale and issuance of the Bonds and Registered Coupons for such
purposes be, and the same is hereby ratified, approved and confirmed.
Section 4. Authorization of Bonds and Registered Coupons; Delegation. In
accordance with the Constitution and laws of the State and the provisions of this Resolution, and for
-7-
the purpose of defraying the cost of the Refunding Project, the District hereby authorizes to be
issued, its "Avon Metropolitan District General Obligation Refunding Bonds, Series 2001," in the
principal amount approved by the President or the Treasurer in the Sale Certificate, subject to the
parameters and restrictions contained in this Resolution.
Section 11-57-204 of the Supplemental Act provides that a public entity, including
the District, may elect in an act of issuance to apply all or any of the provisions of the Supplemental
Act. The Board hereby elects to apply all of the Supplemental Act to the Bonds and the Registered
Coupons.
Section 5. Bond Details.
A. The Bonds shall be issued in fully registered form (i.e., registered as to
payment of both principal and interest) initially registered in the name of Cede & Co. as nominee
for DTC, as Depository for the Bonds. The Bonds shall be issued in denominations of $5,000 or any
integral multiple thereof (provided that no Bond may be in a denomination which exceeds the
principal coming due on any maturity date and no individual bond will be issued for more than one
maturity). The Bonds shall be dated as of February 1, 2001. The Bonds and Registered Coupons
shall be numbered in the manner determined by the Registrar.
The Bonds shall mature, bear "A" and "B" interest from their dated date to maturity,
and be sold, as provided in the Sale Certificate; provided that: i) the final maturity of the Bonds shall
not be later than November 1, 2010; ii) the interest rate on the Bonds (including both "A" and "B"
interest) shall not exceed 7%; iii) the aggregate principal amount of the Bonds shall not exceed
$3,705,000; and iv) the purchase price of the Bonds shall not be less than 98%. Interest on the
Bonds shall be calculated on the basis of a 360-day year of twelve 30-day months, payable
semiannually on each May 1 and November 1, commencing May 1, 2001.
B. The principal of any Bond and the interest evidenced by any Registered
Coupon shall be payable to the Registered Owner thereof as shown on the registration books kept
by the Registrar upon maturity or prior redemption of the Bonds thereof or upon the due date of the
Registered Coupons and upon presentation and surrender at the Principal Office. If any Bond shall
not be paid upon such presentation and surrender at maturity, it shall continue to draw interest at the
rate borne by said Bond until the principal thereof is paid in full. Payment of interest (excluding
-8-
interest represented by Registered Coupons) on any Bond shall be made to the Registered Owner
thereof by check or draft mailed by the Paying Agent on or before each interest payment date (or,
if such interest payment date is not a business day, on or before the next succeeding business day),
to the Registered Owner thereof at his or her address as it last appears on the registration books kept
by the Registrar on the Record Date; but any such interest not so timely paid or duly provided for
shall cease to be payable to the person who is the Registered Owner thereof on the Record Date and
shall be payable to the person who is the Registered Owner thereof at the close of business on a
Special Record Date for the payment of any such defaulted interest. Such Special Record Date and
the date fixed for payment of such defaulted interest shall be fixed by the Registrar whenever
moneys become available for payment of the defaulted interest, and notice of the Special Record
Date shall be given to the Registered Owners not less than ten days prior to the Special Record Date
by first-class mail to each such Registered Owner as shown on the Registrar's registration books on
a date selected by the Registrar, stating the date of the Special Record Date and the date fixed for
the payment of such defaulted interest. The Paying Agent may make payments of interest on any
Bond (excluding interest represented by the Registered Coupons) by such alternative means as may
be mutually agreed to between the Registered Owner of such Bond and the Paying Agent (provided,
however, that the District shall not be required to make funds available to the Paying Agent prior to
the dates specified in the Registrar Agreement). All such payments shall be made in lawful money
of the United States of America, without deduction for services of the Registrar or Paying Agent.
Section 6. Registered Coupons. At the time of initial delivery of the Bonds to
the Underwriter, the Bonds shall be accompanied by Registered Coupons evidencing additional
interest on the Bonds. The Registered Coupons shall be in fully registered form (i.e., registered as
to payment of the supplemental interest) provided that no Registered Coupon shall be issued for
more than one due date. The Registered Coupons shall be dated as of the date of delivery of the
Bonds. The Registered Coupons shall be numbered in such manner as the Registrar shall determine.
Each Registered Coupon shall entitle the registered owner thereof to receive payment of a portion
of the interest payable with respect to the Bonds as described in Section 5 hereof. The Registered
Coupons may be owned, transferred and presented for payment separately from the Bonds.
References in this resolution to the Bonds shall be deemed to include the Registered Coupons where
-9-
the context so requires. Except as specifically provided herein or in the Registered Coupons, no
provision of this resolution relating to the Bonds shall be deemed to affect the rights of the owners
of Registered Coupons to receive payments as provided in Section 5 hereof.
Section 7. Prior Redemption.
A. The Bonds will not be subject to redemption prior to maturity at the option
of the District.
B. The Term Bonds, if any, shall be subject to mandatory sinking fund
redemption at the times, in the amounts and at the prices provided in the Sale Certificate.
On or before the thirtieth day prior to each such sinking fund payment date, the
Registrar shall proceed to call the Term Bonds (or any Term Bond or Term Bonds issued to replace
such Term Bonds) for redemption from the sinking fund on the next November 1, and give notice
of such call without other instruction or notice from the District.
At its option, to be exercised on or before the sixtieth day next preceding each such
sinking fund redemption date, the District may (a) deliver to the Registrar for cancellation Term
Bonds subject to mandatory sinking fund redemption on such date in an aggregate principal amount
desired or (b) receive a credit in respect of its sinking fund redemption obligation for any Term
Bonds of the maturity subject to mandatory sinking fund redemption on such date, which prior to
said date have been redeemed (otherwise than through the operation of the sinking fund) and
canceled by the Registrar and not theretofore applied as a credit against any sinking fund redemption
obligation. Each Term Bond so delivered or previously redeemed will be credited by the Registrar
at the principal amount thereof on the obligation of the District on such sinking fund redemption date
and the principal amount of Term Bonds to be redeemed by operation of such sinking fund on such
date will be accordingly reduced. The District will on or before the sixtieth day next preceding each
sinking fund redemption date furnish the Registrar with its certificate indicating whether or not and
to what extent the provisions of (a) and (b) of the preceding sentence are to be availed with respect
to such sinking fund payment. Failure of the District to deliver such certificate shall not affect the
Registrar's duty to give notice of sinking fund redemption as provided in this paragraph B.
-10-
C. In the case of Bonds of a denomination larger than $5,000, a portion of such
Bond ($5,000 or any integral multiple thereof) may be redeemed, in which case the Registrar shall,
without charge to the Owner of such Bond, authenticate and issue a replacement Bond or Bonds for
the unredeemed portion thereof.
D. Notice of mandatory sinking fund redemption by the District shall be given
by the Paying Agent in the name of the District by sending a copy of such notice by first-class,
postage prepaid mail, not more than 60 days and not less than 30 days prior to the redemption date
to the Underwriter and to each Registered Owner of any Bond all or a portion of which is called for
redemption at his address as it last appears on the registration books kept by the Registrar. Failure
to give such notice by mailing to the Registered Owner of any Bond or to the Underwriter, or any
defect therein, shall not affect the validity of the proceedings for the redemption of any Bonds.
All official notices of redemption shall be dated and shall state:
(1) CUSIP numbers of Bonds to be redeemed;
(2) the redemption date;
(3) the redemption price;
(4) if less than all Outstanding Bonds are to be redeemed, the
identification of the Bonds (and, in the case of partial redemption, the respective principal amounts
and interest rate) to be redeemed;
(5) that on the redemption date the redemption price will become due and
payable upon each such Bond or portion thereof called for redemption, and that interest thereon shall
cease to accrue from and after said date; and
(6) the place where such Bonds are to be surrendered for payment of the
redemption price, which place of payment shall be the Principal Office or such other office as shall
be designated by the Paying Agent.
Prior to any redemption date, the District shall deposit with the Paying Agent an
amount of money sufficient to pay the redemption price of all the Bonds or portions of Bonds which
are to be redeemed on that date.
Official notice of redemption having been given as aforesaid, the Bonds or portions
of Bonds so to be redeemed shall, on the redemption date, become due and payable at the redemption
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price therein specified, and from and after such date (unless the District shall default in the payment
of the redemption price) such Bonds or portions of Bonds shall cease to bear interest. Upon
surrender of such Bonds for redemption in accordance with said notice, such Bonds shall be paid by
the Paying Agent at the redemption price. Installments of interest due on or prior to the redemption
date shall be payable as herein provided for payment of interest. Upon surrender for partial
redemption of any Bond, there shall be prepared for the Registered Owner a new Bond or Bonds of
the same maturity and interest rate in the amount of the unpaid principal. All Bonds which have
been redeemed shall be canceled and destroyed by the Registrar and shall not be reissued.
In addition to the foregoing notice, further notice may be given by the Paying Agent
in order to comply with the requirements of any registered securities depository holding the Bonds
but no defect in said further notice nor any failure to give all or any portion of such further notice
shall in any manner defeat the effectiveness of a call for redemption if notice thereof is given as
above prescribed.
Notwithstanding the provisions of this section, any notice of redemption may contain
a statement that the redemption is conditioned upon the receipt by the Paying Agent of funds on or
before the date fixed for redemption sufficient to pay the redemption price of the bonds 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 bonds called for redemption in the same manner as the original
redemption notice was mailed.
Section 8. Execution and Authentication. The Bonds shall be executed in the
name of and on behalf of the District and signed by the manual or facsimile signature of the
President, sealed with a manual or facsimile impression of the seal of the District and attested by the
manual or facsimile signature of the Secretary. The Registered Coupons accompanying the Bonds
shall be executed in the name of and on behalf of the District by the manual or facsimile signatures
of the President and Secretary and sealed with a manual or facsimile impression of the seal of the
District. The Bonds and Registered Coupons bearing the manual or facsimile signatures of the
officers in office at the time of the signing thereof shall be the valid and binding obligations of the
District (subject to the requirement of authentication by the Registrar as hereinafter provided)
notwithstanding that before the delivery of the Bonds or the Registered Coupons, or before the
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issuance of the Bonds or the Registered Coupons upon transfer or exchange, any or all of the persons
whose facsimile signatures appear on the Bonds or the Registered Coupons shall have ceased to fill
their respective offices. The President and Secretary may, by the execution of a signature certificate
pertaining to the Bonds or the Registered Coupons, adopt as and for their respective signatures the
facsimiles thereof appearing on the Bonds or the Registered Coupons. At the time of the execution
of the signature certificate, the President and Secretary may each adopt as and for his or her facsimile
signature the facsimile signature of his or her predecessor in office in the event that such facsimile
signature appears upon any of the Bonds or the Registered Coupons.
No Bond or Registered Coupon shall be valid or obligatory for any purpose unless
the certificate of authentication, substantially in the form hereinafter provided, has been duly
manually executed by the Registrar. The Registrar's certificate of authentication shall be deemed
to have been duly executed by it if manually signed by an authorized officer or representative of the
Registrar, but it shall not be necessary that the same officer or representative sign the certificate of
authentication on all of the Bonds or the Registered Coupons issued hereunder. By authenticating
any of the Bonds or Registered Coupons initially delivered pursuant to this resolution, the Registrar
shall be deemed to have assented to the provisions of this Resolution.
Section 9. Registration Transfer and Exchange of Bonds and Registered
Coupons.
A. Subject to Section 10 hereof, books for the registration and transfer of the
Bonds and Registered Coupons shall be kept by the Registrar. Upon the surrender for transfer of any
Bond or Registered Coupon at the Registrar, duly endorsed for transfer or accompanied by an
assignment duly executed by the Registered Owner or his attorney duly authorized in writing, the
Registrar shall authenticate and deliver in the name of the transferee or transferees a new Bond or
Bonds of a like aggregate principal amount and of the same maturity or a new Registered Coupon
or Registered Coupons of a like aggregate amount and of the same due date, as the case may be,
bearing a number or numbers not previously assigned. Bonds may be exchanged at the Registrar
for an equal aggregate principal amount of Bonds of the same maturity of other authorized
denominations. Registered Coupons may be exchanged at the Principal Office for an equal
aggregate amount of Registered Coupons as provided in Section 6 hereof and of the same due date.
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The Registrar shall authenticate and deliver a Bond or Bonds or Registered Coupon or Registered
Coupons which the Registered Owner making the exchange is entitled to receive, bearing a number
or numbers not previously assigned. The Registrar may impose reasonable charges in connection
with exchanges or transfers of Bonds or Registered Coupons, which charges (as well as any tax or
other governmental charge required to be paid with respect to such transfer) shall be paid by the
Owner of any Bond or Registered Coupon requesting such exchange or transfer.
B. The Registrar shall not be required (1) to transfer or exchange all or a portion
of any Bond subject to prior redemption during the period beginning at the opening of business 15
days next preceding the mailing of notice calling any Bonds for prior redemption as herein provided
or (2) to transfer or exchange all or a portion of a Bond after the mailing of notice calling such Bond
or portion thereof for prior redemption, except for the unredeemed portion of Bonds being redeemed
in part.
C. The person in whose name any Bond or Registered Coupon shall be
registered, on the registration books kept by the Registrar, shall be deemed and regarded as the
absolute owner thereof for the purpose of making payment thereof and for all other purposes except
as may otherwise be provided with respect to payment of interest to the Owners of the Bonds as is
provided in Section 5 hereof, and payment of or on account of either principal or interest on any
Bond or Registered Coupon shall be made only to or upon the written order of the Registered Owner
thereof or his legal representative, but such registration may be changed upon transfer of such Bond
or Registered Coupon in the manner and subject to the conditions and limitations provide herein.
All such payments shall be valid and effectual to discharge the liability upon such Bond or
Registered Coupon to the extent of the sum or sums so paid.
D. If any Bond or Registered Coupon shall be lost, stolen, destroyed or mutilated,
the Registrar shall, upon receipt of such evidence, information or indemnity relating thereto as it may
reasonably require, authenticate and deliver a replacement Bond or Bonds of a like aggregate
principal amount and of the same maturity, or a replacement Registered Coupon or Registered
Coupons, bearing a number or numbers not previously assigned. If such lost, stolen, destroyed or
mutilated Bond or Registered Coupon shall have matured or is about to become due and payable,
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the Registrar may direct the Paying Agent to pay such Bond or Registered Coupon in lieu of
replacement.
E. The officers of the District are authorized to deliver to the Registrar fully
executed but unauthenticated Bonds and Registered Coupons in such quantities as may be
convenient to be held in custody by the Registrar pending use as herein provided.
F. Whenever any Bond or Registered Coupon shall be surrendered to the Paying
Agent upon payment thereof, or to the Registrar for transfer, exchange or replacement as provided
herein, such Bond or Registered Coupon shall be promptly cancelled by the Paying Agent or
Registrar, and counterparts of a certificate of such cancellation shall be furnished by the Paying
Agent or Registrar to the District.
Section 10. Book Entry.
A. Notwithstanding any contrary provision ofthis resolution, the Bonds initially
shall be evidenced by one Bond for each maturity in denominations equal to the aggregate principal
amount of the Bonds of such maturity and the Registered Coupons initially shall be evidenced by
one Registered Coupon for each payment date for which a Registered Coupon comes due. Such
initially delivered Bonds and Registered Coupons shall be registered in the name of "Cede & Co."
as nominee for DTC, the Depository for the Bonds and Registered Coupons. The Bonds and
Registered Coupon may not thereafter be transferred or exchanged except:
(1 j to any successor of DTC or its nominee, which successor must be both
a "clearing corporation" as defined in Section 4-8-102(5), C.R.S. and a qualified and registered
"clearing agency" under Section 17A of the Securities Exchange Act of 1934, as amended; or
(2) upon the resignation of DTC or a successor or new depository under
clause (1) or this clause (2) of this paragraph A, or a determination by the Board that DTC or such
successor or new Depository is no longer able to carry out its functions, and the designation by the
Board of another Depository acceptable to the Board and to the Depository then holding the Bonds
and Registered Coupons, which new Depository must be both a "clearing corporation" as defined
in Section 4-8-102(5), C.R.S. and a qualified and registered "clearing agency" under Section 17A
of the Securities Exchange Act of 1934, as amended, to carry out the functions of DTC or such
successor new depository; or
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(3) upon the resignation of DTC or a successor or new Depository under
clause (1) or clause (2) of this paragraph A, or a determination of the Board that DTC or such
successor or Depository is no longer able to carry out its functions, and the failure by the Board, after
reasonable investigation, to locate another Depository under clause (2) to carry out such Depository
functions.
B. In the case of a transfer to a successor of DTC or its nominee as referred to
in clause (1) of paragraph A hereof, upon receipt of the outstanding Bonds or Registered Coupons
by the Registrar together with written instructions for transfer satisfactory to the Registrar, a new
Bond for each maturity of the Bonds then outstanding and a new Registered Coupon for each
payment date of the Registered Coupons then Outstanding shall be issued to such successor or new
Depository, as the case may be, or its nominee, as is specified in such written transfer instructions.
In the case of a resignation or determination under clause (3) of paragraph A hereof and the failure
after reasonable investigation to locate another qualified Depository for the Bonds and Registered
Coupons as provided in clause (3) of paragraph A hereof, and upon receipt of the outstanding Bonds
and Registered Coupons by the Registrar, together with written instructions for transfer satisfactory
to the Registrar, new Bonds shall be issued in denominations of $5,000 or any integral multiple
thereof and Registered Coupons shall be issued in authorized amounts, registered in the names of
such persons, and in such authorized denominations as are requested in such written transfer
instructions; however, the Registrar shall not be required to deliver such new Bonds or Registered
Coupons within a period of less than 60 days from the date of receipt of such written transfer
instructions.
C. The Board and the Registrar shall be entitled to treat the Registered Owner
of any Bond or Registered Coupon as the absolute owner thereof for all purposes hereof and any
applicable laws, notwithstanding any notice to the contrary received by any or all of them and the
Board and the Registrar shall have no responsibility for transmitting payments or notices to the
Beneficial Owners of the Bonds and Registered Coupons held by DTC or any successor or new
Depository named pursuant to paragraph A hereof.
D. The Board and the Registrar shall endeavor to cooperate with DTC or any
successor or new Depository named pursuant to clause (1) or (2) of paragraph A hereof in
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effectuating payment of the principal amount of the Bonds upon maturity or prior redemption by
arranging for payment in such a manner that funds representing such payments are available to the
Depository on the date they are due.
E. Upon any partial redemption of any maturity of the Bonds, Cede & Co. (or
its successor) in its discretion may request the District to issue and authenticate a new Bond or shall
make an appropriate notation on the Bond indicating the date and amount of prepayment, except in
the case of final maturity, in which case the Bond must be presented to the Registrar prior to
payment. The records of the Paying Agent shall govern in the case of any dispute as to the amount
of any partial prepayment made to Cede & Co. (or its successor).
Section 11. Negotiability. Subject to the registration provisions hereof, the Bonds
and Registered Coupons hereby authorized shall be fully negotiable and shall have all the qualities
of negotiable paper, and the holder or holders thereof shall possess all rights enjoyed by the holders
of negotiable instruments under the provisions of the Uniform Commercial Code. The Bonds and
Registered Coupons shall constitute the general obligations of the District and the full faith and
credit of the District shall be, and hereby is, pledged to the payment thereof.
Section 12. Form of Bonds, Registered Coupons, Certificates, and Registration
Panel. The Bonds, Registered Coupons, the Registrar's certificate of authentication, the form of
assignment, and the form of prepayment panel shall be in substantially the following forms:
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(Form of Bond)
Unless this certificate is presented by an authorized representative of The Depository
Trust Company, a New York corporation ("DTC"), to the District or its agent for
registration of transfer, exchange, or payment, and any certificate issued is registered
in the name of Cede & Co. or in such other name as is requested by an authorized
representative of DTC (and any payment is made to Cede & Co. or to such other
entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede &
Co., has an interest herein.
UNITED STATES OF AMERICA
STATE OF COLORADO
COUNTY OF EAGLE
AVON METROPOLITAN DISTRICT
GENERAL OBLIGATION REFUNDING BONDS
SERIES 2001
No. R-
INTEREST RATE
REGISTERED OWNER:
PRINCIPAL AMOUNT:
MATURITY DATE
November 1,
DOLLARS
On the faith, credit and behalf of Avon Metropolitan District (the "District"), in Eagle
County, in the State of Colorado, the Board of Directors of the District (the "Board") hereby
acknowledges the District indebted and promises to pay to the Registered Owner specified above,
or registered assigns, the Principal Amount specified above, on the Maturity Date specified above,
DATED AS OF CUSIP
February 1, 2001
-18-
interest thereon payable on May 1 and November 1 in each year commencing on May 1, 2001, at
the Interest Rate per annum specified above, until the principal sum is paid or payment has been
provided therefor. This Bond will bear interest payable to the Registered Owner at the Interest Rate
specified above from the most recent interest payment date to which interest has been paid or
provided for, or, if no interest has been paid, from the date of this Bond. This Bond is one of an
authorized series issued pursuant to a resolution of the Board adopted on January 23, 2001 (the
"Bond Resolution"). This Bond bears interest, matures, is payable, is subject to redemption and is
transferable as provided in the Bond Resolution and a Sale Certificate executed by the President or
the Treasurer of the District prior to the delivery of the Bonds. To the extent not defined herein,
terms used in this Bond shall have the same meanings as set forth in the Bond Resolution.
At the time of delivery of the Bonds, the Bonds shall be accompanied by Registered
Coupons evidencing additional interest on the Bonds. Each Registered Coupon shall entitle the
registered owner thereof to receive payment of a portion of interest payable with respect to the
Bonds, as more fully described in the Bond Resolution.
The principal of and premium, if any, on the Bonds shall be payable at the Principal
Office, upon presentation and surrender of such Bonds. Except as otherwise provided in the Bond
Resolution, payment of interest on the Bonds shall be paid by check mailed on the interest payment
date to the person appearing on the registration records of the District as the Registered Owner
thereof on the Record Date to the address of such owner as it appears on the registration records of
the District.
Reference is made to the Bond Resolution and to all resolutions supplemental thereto,
with respect to the nature and extent of the security for the Bonds, rights, duties and obligations of
the District, the rights of the owners of the Bonds, the rights, duties and obligations of the Paying
Agent and Registrar, the circumstances under which any Bond is no longer Outstanding, the ability
to amend the Bond Resolution, and to all the provisions of which the owner hereof by the acceptance
of this Bond assents.
The Bonds of the series of which this is one are issued by the District, upon its behalf
and upon the credit thereof, for the purpose of defraying wholly or in part the costs of the Refunding
Project, all under the authority of and in full conformity with the Constitution and laws of the State
-19-
of Colorado and pursuant to the Bond Resolution of the Board duly adopted and made a law of the
District prior to the issuance of this bond. The Bonds are also issued pursuant to portions of Title
11, Article 57, Part 2, C.R.S. (the "Supplemental Act"). Pursuant to Section 11-57-210 of the
Supplemental Act, this recital shall be conclusive evidence of the validity and the regularity of the
issuance of the Bonds after their delivery for value.
FOR PURPOSES OF SECTION 265(b)(3)(B) OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THE DISTRICT HAS DESIGNATED THIS BOND AS A
QUALIFIED TAX-EXEMPT OBLIGATION.
It is hereby certified, recited and warranted that all the requirements of law have been
complied with by the proper officers of the District in the issuance of this Bond; that the total
indebtedness of the District, including that of this bond, does not exceed any limit of indebtedness
prescribed by the Constitution or laws of the State of Colorado; and that provision has been made
for the levy and collection of annual taxes sufficient to pay the interest on and the principal of this
bond when the same become due.
The full faith and credit of the District are hereby irrevocably pledged for the punctual
payment of the principal of and the interest on this bond.
This bond shall not be valid or obligatory for any purpose until the Registrar shall
have manually signed the certificate of authentication herein.
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IN WITNESS WHEREOF, the Board of Directors of Avon Metropolitan District,
Eagle County, Colorado, has caused this bond to be signed and executed on behalf of the District
by the manual or facsimile signature of its President and to be subscribed and attested with the
manual or facsimile signature of its Secretary with a manual or facsimile impression of the seal of
the District affixed hereto, as of the date specified above.
(Manual or Facsimile Si nature)
President, Board of Directors
Avon Metropolitan District
Eagle County, Colorado
(MANUAL OR FACSIMILE SEAL)
Attest:
(Manual or Facsimile Signature)
Secretary, Board of Directors
Avon Metropolitan District
Eagle County, Colorado
(End of Bond)
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STATEMENT OF INSURANCE
MBIA Insurance Corporation (the "Insurer") has issued a policy containing the
following provisions, such policy being on file at The Bank of Cherry Creek, N.A., in Denver,
Colorado.
The Insurer, in consideration of the payment of the premium and subject to the terms
of this policy, hereby unconditionally and irrevocably guarantees to any owner, as hereinafter
defined, of the following described obligations, the full and complete payment required to be made
by or on behalf of the District to The Bank of Cherry Creek, N.A. or its successor (the "Paying
Agent") of an amount equal to (i) the principal of (either at the stated maturity or by any
advancement of maturity pursuant to a mandatory sinking fund payment) and interest on, the
Obligations (as that term is defined below) as such payments shall become due but shall not be so
paid (except that in the event of any acceleration of the due date of such principal by reason of
mandatory or optional redemption or acceleration resulting from default or otherwise, other than any
advancement of maturity pursuant to a mandatory sinking fund payment, the payments guaranteed
hereby shall be made in such amounts and at such times as such payments of principal would have
been due had there not been any such acceleration); and (ii) the reimbursement of any such payment
which is subsequently recovered from any owner pursuant to a final judgment by a court of
competent jurisdiction that such payment constitutes an avoidable preference to such owner within
the meaning of any applicable bankruptcy law. The amounts referred to in clauses (i) and (ii) of the
preceding sentence shall be referred to herein collectively as the "Insured Amounts." "Obligations"
shall mean:
$3,705,000
Avon Metropolitan District
Eagle County, Colorado
General Obligation Refunding Bonds
Series 2001
and
$250,000 Maturity Amount
Supplement "B" Interest Coupons
Upon receipt of telephonic or telegraphic notice, such notice subsequently confirmed
in writing by registered or certified mail, or upon receipt of written notice by registered or certified
mail, by the Insurer from the Paying Agent or any owner of an Obligation the payment of any
Insured Amount for which is then due, that such required payment has not been made, the Insurer
on the due date of such payment or within one business day after receipt of notice of such
nonpayment, whichever is later, will make a deposit of funds, in an account with State Street Bank
and Trust Company, N.A., in New York, New York, or its successor, sufficient for the payment of
any such Insured Amounts which are then due. Upon presentment and surrender of such Obligations
or presentment of such other proof of ownership of the Obligations, together with any appropriate
instruments of assignment to evidence the assignment of the Insured Amounts due on the
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Obligations as are paid by the Insurer, and appropriate instruments to effect the appointment of the
Insurer as agent for such owners of the Obligations in any legal proceeding related to payment of
Insured Amounts, such instruments being in a form satisfactory to State Street Bank and Trust
Company, N.A., State Street Bank and Trust Company, N.A. shall disburse to such owners or the
Paying Agent payment of the Insured Amounts due on such Obligations, less any amount held by
the Paying Agent for the payment of such Insured Amounts and legally available therefor. This
policy does not insure against loss of any prepayment premium which may at any time be payable
with respect to any Obligation.
As used herein, the term "owner" shall mean the registered owner of any Obligation
as indicated in the records maintained by the Paying Agent, the District, or any designee of the
District for such purpose. The term owner shall not include the District or any party whose
agreement with the District constitutes the underlying security for the Obligations.
Any service of process on the Insurer may be made to the Insurer at its offices located
at 113 King Street, Armonk, New York 10504.
This policy is non-cancelable for any reason. The premium on this policy is not
refundable for any reason including the payment prior to maturity of the Obligations.
MBIA INSURANCE CORPORATION
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(Form of Registrar's Certificate of Authentication)
Date of authentication and registration:
This is one of the Bonds described in the within-mentioned resolution, and this
bond has been duly registered on the registration books kept by the undersigned as Registrar for
such Bonds.
THE BANK OF CHERRY CREEK, N.A.,
Denver, Colorado, as Registrar
By.
Authorized Officer or Employee
(End of Form of Registrar's Certificate of Authentication)
-24-
(Form of Assignment)
For value received, the undersigned hereby sells, assigns and transfer unto
the within bond and hereby irrevocably constitutes and appoints
attorney, to transfer the same on the books of the Registrar, with
full power of substitution in the premises.
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.
EXCHANGE OR TRANSFER FEES MAY BE CHARGED
(End of Form of Assignment)
-25-
(Form of Prepayment Panel)
The following installments of principal (or portion thereof) of this bond have been
prepaid in accordance with the terms of the resolution authorizing the issuance of this bond.
Signature of
Date of Principal Authorized
Prepayment Prepaid Representative of the Depository
(End of Form of Prepayment Panel)
-26-
(Form of Registered Coupon)
United States of America
State of Colorado
County of Eagle
Avon Metropolitan District
General Obligation Refunding Bond
Series 2001
Supplemental "B" Interest Registered Coupon
REGISTERED COUPON NO.:
RELATED PRINCIPAL AMOUNT OF BONDS:
"B" INTEREST RATE:
INTEREST PAYABLE:
INTEREST PAYMENT DATE:
INTEREST START DATE:
REGISTERED OWNER: CEDE & CO.
CUSIP NO.:
On the Interest Payment Date specified above, Avon Metropolitan District (the
"District"), Eagle County, State of Colorado, hereby promises to pay to the Registered Owner
specified above, or registered assigns, in lawful money of the United States of America, the Interest
Payable shown above, being partial interest on the Related Principal Amount of Bonds referred to
above at the "B" Interest Rate per annum identified above for the period from the Interest Start Date
specified above to the Interest Payment Date specified above. Such payment will be made to the
registered owner hereof upon presentation and surrender of this Supplemental "B" Interest
Registered Coupon at the principal operations office of The Bank of Cherry Creek, N.A., Denver,
Colorado, or its successor, as Paying Agent, all in accordance with the resolution authorizing the
issuance of the Bonds and Registered Coupons adopted by the Board of Directors of the District on
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January 23, 2001 (the "Bond Resolution"), and the provisions of the Bond Resolution are hereby
incorporated herein by reference.
This Supplemental "B" Interest Registered Coupon is issued by the District, upon its
behalf and upon the credit thereof, for the purpose of defraying wholly or in part the costs of the
Refunding Project (as defined in the Bond Resolution), all under the authority of and in full
conformity with the Constitution and laws of the State of Colorado and pursuant to the Bond
Resolution of the Board duly adopted and made a law of the District prior to the issuance of this
bond. This Supplemental "B" Interest Registered Coupon is also issued pursuant to portions of Title
11, Article 57, Part 2, C.R.S. (the "Supplemental Act"). Pursuant to Section 11-57-210 of the
Supplemental Act, this recital shall be conclusive evidence of the validity and the regularity of the
issuance of this Supplemental "B" Interest Registered Coupon after its delivery for value.
This Supplemental "B" Interest Registered Coupon may be transferred, exchanged,
and reissued at the principal operations office of The Bank of Cherry Creek, N.A., Denver, Colorado,
or its successor as Registrar.
This Supplemental "B" Interest Registered Coupon shall not be valid or obligatory
for any purpose until the Registrar shall have manually signed the certificate of authentication
hereon.
(Manual or Facsimile Sip-nature)
President, Board of Directors
Avon Metropolitan District
Eagle County, Colorado
(MANUAL OR FACSIMILE SEAL)
(End of Form of Registered Coupon)
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(Form of Registrar's Certificate of Authentication
for Supplemental "B" Interest Registered Coupon)
Date of authentication and registration:
This is one of the Supplemental "B" Interest Registered Coupons described in the
within-mentioned Resolution, and this Supplemental "B" Interest Registered Coupon has been duly
registered on the registration books kept by the undersigned as Registrar for such Supplemental "B"
Interest Registered Coupons.
THE BANK OF CHERRY CREEK
as Registrar
By:
Authorized Officer or Employee
(End of Form of Registrar's Certificate of Authentication)
-29-
(Form of Assignment for Supplemental "B" Interest Registered Coupon)
For value received, the undersigned hereby sells, assigns and transfers unto
the within Supplemental "B" Interest Registered Coupon and does hereby
irrevocably constitute and appoint
attorney, to transfer the within
Supplemental "B" Interest Registered Coupon on the books kept for registration of the within
Supplemental "B" Interest Registered Coupon, with full power of substitution in the premises.
Dated:
Signature Guaranteed:
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 Supplemental "B" Interest Registered Coupon in every particular, without alteration or
enlargement or any change whatsoever.
EXCHANGE OR TRANSFER FEES MAY BE CHARGED
(End of Form of Assignment for Supplemental "B" Interest Registered Coupon)
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Section 13. Delivery of Bonds and Registered Coupons. When the Bonds and
Registered Coupons have been duly executed and authenticated, they will be delivered to the
Underwriter on receipt of the agreed purchase price. The Registrar shall initially register the Bonds
and Registered Coupons in the name of the Cede & Co. as nominee of DTC, or in the names of such
transferees as the Underwriter may designate by a writing or writings satisfactory to the Registrar,
or any combination thereof as directed by the Underwriter. The funds realized from the sale of the
Bonds and Registered Coupons shall be applied solely to defray the costs of the Refunding Project,
and for no other purposes whatsoever. The Underwriter shall in no manner be responsible for the
application or disposal by the District, or any of its officers, of any of the funds derived from the sale
of the Bonds and Registered Coupons.
Section 14. Disposition of Bond and Registered Coupon Proceeds, District Moneys.
The net proceeds of the sale of the Bonds and Registered Coupons shall be applied in the following
manner:
A. First, there shall be deposited in the General Obligation Refunding Bonds,
Series 2001 Bond Fund (the "Bond Fund") hereby created and maintained by the District the accrued
interest on the Bonds from their date to the date of their initial delivery, which will be used to pay a
portion of the interest on the Bonds.
B. Second, an amount shall be credited to a special and separate account hereby
created, to be held by the Escrow Bank and designated the Series 2001 Refunding Escrow Account
(the "Escrow Account") which amount, together with other District funds available for such purpose,
will be sufficient to establish any initial cash balance remaining uninvested and to buy Federal
Securities to effect the Refunding Project.
C. Third, the balance of the proceeds shall be applied by the District solely for the
payment of all issuance expenses, or after adequate provision therefor is made, any unexpended
proceeds shall be deposited in the Bond Fund.
Section 15. Payment of Principal and Interest -- Tax Lew.
A. The interest and principal, if any, falling due on the Bonds prior to the time
when sufficient proceeds of a levy therefor are available shall be paid out of the general revenues of
the District or other moneys available therefor. For the purpose of reimbursing any such general
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revenues so used for principal and interest and to meet the principal and interest payments accruing
thereafter, as the same shall become due, there shall be levied by the County Board, on all taxable
property in the District, in addition to all other taxes, direct annual taxes unlimited as to rate and in
an amount sufficient to pay principal and interest on the Bonds when due, promptly as the same
respectively become due. The taxes, when collected, shall be deposited into the Bond Fund, to be
applied solely for the payment of the interest on, principal of and premium, if any, on the Bonds, until
the Bonds shall be fully paid, satisfied and discharged; provided, however, that nothing herein
contained shall be so construed as to prevent the District from applying any other funds or revenues
that may be in the treasury of the District and available for that purpose, to the payment of the interest
on or principal and premium, if any, of said Bonds, as the same respectively accrue and mature, and
upon the application of any other such funds or revenues as aforesaid, the mill levy or levies herein
provided may thereupon, to that extent, be diminished.
Said direct annual taxes levied to pay said principal and interest shall be in addition
to any and all other taxes levied to effect the purposes of the County or the District. No statutory or
constitutional provision enacted after the issuance of the Bonds and Registered Coupons shall in any
manner be construed as limiting or impairing the obligation of the District to levy ad valorem taxes
on property within the District, without limitation of rate and in an amount sufficient to pay the
principal of and interest on the Bonds when due. Any changes in the boundaries of the District
subsequent to the delivery of the Bonds shall be effected in such a manner as to fully preserve and
protect the rights of the Owners of the Bonds.
It shall be the duty of the Board annually at the time and in the manner provided by
law for levying other taxes, if such action shall be necessary to effectuate the provisions of this
resolution, to ratify and carry out the provisions hereof with reference to the levy and collection of
taxes; and the Board shall require the officers of the District to levy, extend and collect such taxes on
property within the District, in the manner provided by law for the purpose of creating a fund for the
payment of the principal of the Bonds and the interest accruing thereon. Such taxes, when collected,
shall be kept for and applied only to the payment of the interest and principal of the Bonds as
hereinbefore specified.
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B. The foregoing provisions are hereby declared to be the certificate of the Board
to the County Board, showing the aggregate amount of taxes to be levied for the purposes aforesaid
by the County Board from time to time, as required by law, and for the purpose of paying the
principal and premium, if any, of the Bonds and the interest thereon as the same shall hereafter mature
and accrue.
Section 16. Covenants with Registered Owners.
A. The District covenants for the benefit of the Owners that it will not take any
action or omit to take any action with respect to the Bonds and Registered Coupons, the proceeds
thereof, any other funds of the District or any facilities refinanced with the proceeds of the Bonds and
Registered Coupons if such action of omission (i) would cause the interest on the Bonds, including
original issue discount on the Registered Coupons, to lose its exclusion from gross income for federal
income tax purposes under Section 103 of the Code, or (ii) would cause interest on the Bonds,
including original issue discount on the Registered Coupons, to lose its exclusion from alternative
minimum taxable income as defined in Section 55(b)(2) of the Code except to the extent such interest
is required to be included in the adjusted current earnings adjustment applicable to corporations under
Section 56 of the Code in calculating corporate alternative minimum taxable income, or (iii) would
cause interest on the Bonds, including original issue discount on the Registered Coupons, to lose its
exclusion from Colorado taxable income and Colorado alternative minimum taxable income under
present state law. The foregoing covenant shall remain in full force and effect notwithstanding the
payment in full or defeasance of the Bonds until the date on which all obligations of the District in
fulfilling the above covenant under the Code have been met.
B. The District hereby determines that neither the District nor any entity
subordinate thereto reasonably anticipates issuing more than $10,000,000 face amount of tax-exempt
governmental bonds (including bonds issued on behalf of a 501(c)(3) organization, but not other
private activity bonds) or any other similar obligations during calendar year 2001, which obligations
are taken into account in determining if the District can designate the Bonds as a qualified tax-exempt
obligation as provided in the following sentence. For the purpose of Section 265(b)(3)(B) of the
Code, the District hereby designates the Bonds as qualified tax-exempt obligations.
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C. The District hereby covenants for the benefit of each Owner that it will prepare
or cause to be prepared a budget and an audit report and will annually file or cause to be filed with
the appropriate State agency a certified copy of the adopted budget and audit report of the District all
in accordance with State law. The District hereby covenants that it will provide a copy of its adopted
budget and audit report to the Underwriter. The District hereby covenants for the benefit of each
Owner that it will prepare or cause to be prepared any annual report required pursuant to Section 32-
1-207(3)(C), C.R.S., (or any successor provision of law) or to provide any information required to
be submitted pursuant to Section 32-1-104(2), C.R.S., (or any successor provision of law) and to file
or cause to be filed such annual report or information at the place or location required by law all in
accordance with State law.
D. The District covenants that it will not take any action or fail to take any action
which action or failure to act would release any property which is included within the boundaries of
the District at any time from liability for the payment of direct annual taxes levied by the District for
the payment of the principal or interest on the Bonds.
E. The District covenants that it shall not take any action or that it shall not fail
to take any action which action or failure to act would result in a material impairment of the rights
of the Owners or the security for the Bonds and Registered Coupons and that it will diligently, in
good faith, and with best efforts seek to prevent, to the fullest extent permitted by law the taking of
such action.
F. The District also covenants for the benefit of the Owners from time to time that
it will comply with and carry out all of the provisions of the Continuing Disclosure Certificate. Any
Owner or, so long as the Bonds and Registered Coupons are registered in the name of the Depository,
any Beneficial Owner, may take such actions as may be necessary and appropriate, including seeking
mandate or specific performance by court order, to cause the District to comply with its obligation
under this subsection; provided that the District shall incur no pecuniary liability for failure to comply
with this subsection.
Section 17. Payments under the Bond Insurance Policy.
A. In the event that, on the second Business Day, and again on the Business Day,
prior to any payment date on the Bonds, the Paying Agent has not received sufficient moneys to pay
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all principal of and interest on the Bonds then due, the Paying Agent shall immediately notify the
Bond Insurer or its designee on the same Business Day by telephone or telegraph, confirmed in
writing by registered or certified mail, of the amount of the deficiency.
B. If the deficiency is made up in whole or in part prior to or on the payment date,
the Paying Agent shall so notify the Bond Insurer or its designee.
C. In addition, ifthe Paying Agent has notice that any Registered Owner has been
required to disgorge payments of principal or interest on the Bonds to a trustee in bankruptcy or
creditors or others pursuant to a final judgment by a court of competent jurisdiction that such payment
constitutes an avoidable preference to such Registered Owner within the meaning of any applicable
bankruptcy laws, then the Paying Agent shall notify the Bond Insurer or its designee of such fact by
telephone or telegraph, confirmed in writing by registered or certified mail.
D. The Paying Agent is hereby irrevocably designated, appointed, directed and
authorized to act as attorney-in-fact for the Registered Owners registered as follows:
i) If and to the extent there is a deficiency in amounts required to pay
interest on the Bonds, the Paying Agent shall (a) execute and deliver to the Insurance Paying Agent,
in form satisfactory to the Insurance Paying Agent, an instrument appointing the Bond Insurer as
agent for such Registered Owners in any legal proceeding related to the payment of such interest and
an assignment to the Bond Insurer of the claims for interest to which such deficiency relates and
which are paid by the Bond Insurer, (b) receive as designee of the respective Registered Owners (and
not as Paying Agent) in accordance with the tenor of the Policy payment from the Insurance Paying
Agent with respect to the claims for interest so assigned, and (c) disburse the same to such respective
Registered Owners; and
ii) If and to the extent of a deficiency in amounts required to pay principal
of the Bonds, the Paying Agent shall (a) execute and deliver to the Insurance Paying Agent in form
satisfactory to the Insurance Paying Agent an instrument appointing the Bond Insurer as agent for
such Registered Owner in any legal proceeding relating to the payment of such principal and an
assignment to the Bond Insurer of any of the Bonds surrendered to the Insurance Paying Agent of so
much of the principal amount thereof as has not previously been paid or for which moneys are not
held by the Paying Agent and available for such payment (but such assignment shall be delivered only
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if payment from the Insurance Paying Agent is received), (b) receive as designee of the respective
Registered Owners (and not as Paying Agent) in accordance with the tenor of the Policy payment
therefor from the Insurance Paying Agent, and (c) disburse the same to such Registered Owners.
E. Payments with respect to claims for interest on and principal of Bonds
disbursed by the Paying Agent from proceeds of the Bond Insurance Policy shall not be considered
to discharge the obligation of the District with respect to such Bonds, and the Bond Insurer shall
become the owner of such unpaid Bonds and claims for the interest in accordance with the tenor of
the assignment made to it under the provisions of this subsection or otherwise.
F. Irrespective of whether any such assignment is executed and delivered, the
District and the Paying Agent hereby agree for the benefit of Bond Insurer that,
i) to the extent the Bond Insurer makes payments, directly or indirectly
(as by paying through the Paying Agent), on account of principal of or interest on the Bonds, the
Bond Insurer will be subrogated to the rights of such Registered Owners to receive the amount of
such principal and interest from the District, with interest thereon as provided and solely from the
sources stated in this resolution and the Bonds; and
ii) they will accordingly pay to the Bond Insurer the amount of such
principal and interest (including principal and interest recovered under subparagraph (ii) of the first
paragraph of the Bond Insurance Policy, which principal and interest shall be deemed past due and
not to have been paid), with interest thereon as provided in this resolution and the Bonds, but only
from the sources and in the manner provided herein for the payment of principal of and interest on
the Bonds to Registered Owners, and will otherwise treat the Bond Insurer as the owner of such rights
to the amount of such principal and interest.
G. In connection with the issuance of additional bonds, the District shall deliver
to the Bond Insurer a copy of the disclosure document, if any, circulated with respect to such
additional bonds.
H. Copies of any amendments made to the documents executed in connection with
the issuance of the Bonds which are consented to by the Bond Insurer shall be sent to Standard &
Poor's Corporation.
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I. The Bond Insurer shall receive notice of the resignation or removal of the
Paying Agent and the appointment of a successor thereto.
J. The Bond Insurer shall receive copies of all notices required to be delivered
to Owners and, on an annual basis, copies of the District's audited financial statements and annual
budget.
K. Any notice that is required to be given to a Owner or to the Paying Agent
pursuant to this resolution shall also be provided to the Bond Insurer. All notices required to be given
to the Bond Insurer under this resolution shall be in writing and shall be sent by registered or certified
mail addressed to MBIA Insurance Corporation, 113 King Street, Armonk, New York 10504,
Attention: Surveillance.
Section 18. Investment of Funds. Any moneys in any fund or account, other than
the Escrow Account, maybe deposited, invested or reinvested in any manner permitted bylaw. Such
deposits or investments shall either be subject to redemption at any time at face value by the holder
thereof at the option of such holder, or shall mature at such time or times as shall most nearly coincide
with the expected need for moneys from the fund in question.
Section 19. Defeasance. When the principal and interest due in connection with
any Bond have been duly paid, all obligations hereunder with respect to such Bond shall be
discharged, and such Bond, shall no longer be deemed to be Outstanding for any purpose of this
Resolution. Payment of such Bond or any portion thereof shall be deemed made when the District
has placed in escrow with a commercial bank exercising trust powers, an amount sufficient (including
the known minimum yield from Federal Securities in which such amount may be wholly or in part
initially invested) to meet all requirements of principal of and interest on such Bond as the same
become due to maturity. The Federal Securities shall become due or be callable at the option of the
owner at or prior to the respective times on which the proceeds thereof shall be needed, in accordance
with a schedule agreed upon between the District and such bank at the time of creation of the escrow.
In the event that there is a defeasance of only part of the Bonds, the Registrar shall,
if requested by the District, institute a system to preserve the identity of the individual Bonds, or
portions thereof so deceased, regardless of changes in numbers attributable to transfers and
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exchanges; and the Registrar shall be entitled to reasonable compensation and reimbursement of
expenses from the District in connection with such system.
Section 20. Escrow Account; Use of Proceeds. There is hereby established the
Escrow Account, which shall be established and maintained at the Escrow Bank. A portion of the
proceeds of the Bonds and Registered Coupons and other available District moneys shall be deposited
by the District in the Escrow Account.
The Escrow Bank is hereby authorized and directed to use moneys credited to the
Escrow Account to provide for the payment of the acquired obligations to be held in the Escrow
Account and to fund the Escrow Account with the necessary beginning cash, if any, as required in
accordance with the escrow sufficiency computations verified by a certified public accountant.
Section 21. Maintenance of Escrow Account. The Escrow Account shall be
maintained in an amount, at the time of those initial deposits therein and at all times subsequently at
least sufficient, together with the known minimum yield to be derived from the initial investment and
any temporary reinvestment of the deposits therein or any part thereof in Federal Securities to pay the
Refunded Bond Requirements.
Section 22. Use of Escrow Account. Moneys shall be withdrawn by the Escrow
Bank from the Escrow Account in sufficient amounts and at such times to permit the payment without
default of the Refunded Bond Requirements. Any moneys remaining in the Escrow Account after
provision shall have been made for the payment or redemption in full of the Refunded Bonds shall
be applied to any lawful purpose of the District as the Board may hereafter determine
Section 23. Exercise of Option. The Board has elected and does hereby declare its
intent to exercise on the behalf and in the name of the District its option to redeem on the Redemption
Date the Refunded Bonds maturing on November 1, 2010. The District hereby authorizes and directs
the registrar for the Refunded Bonds to give notice of refunding, defeasance and redemption of the
Refunded Bonds to the registered owners of the Refunded Bonds, in the name and on behalf of the
District, forthwith upon the issuance of the Bonds and Registered Coupons and again not more than
60 days nor less than 30 days prior to the Redemption Date. The notice shall be given in accordance
with the provisions of resolution authorizing the issuance of the Refunded Bonds.
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Section 24. Form of Notice. The notice so to be given shall be in substantially the
following form:
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(Form of Notice)
NOTICE OF REFUNDING, DEFEASANCE AND REDEMPTION
AVON METROPOLITAN DISTRICT
IN THE COUNTY OF EAGLE
AND STATE OF COLORADO
CUSIP NO.
NOTICE IS HEREBY GIVEN that Avon Metropolitan District, in the County ofEagle
and State of Colorado (the "District") has caused to be deposited in escrow with The Bank of Cherry
Creek, N.A., in Denver, Colorado, refunding bond proceeds and other moneys which have been
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 and
interest of which are unconditionally guaranteed by, the United States *of America to refund, pay,
redeem and discharge portions of the principal and interest in connection with its outstanding General
Obligation Refunding and Improvement Bonds, Series 1990 (the " 1990 Bonds") as more particularly
described below.
The 1990 Bonds maturing on November 1, 2010 will be called for redemption on
May 1, 2001 (the "Redemption Date"). On the Redemption Date, the principal of such 1990 Bonds,
a premium of 1.0%, and accrued interest to the date of redemption will become due and payable at
the paying agent, Bank One, N.A., in Denver, Colorado (the "Paying Agent"), 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, is fully sufficient at the time of the
deposit and at all times subsequently, to pay the principal of all of the 1990 Bonds maturing on
November 1, 2010, a premium of 1.0% , and accrued interest to the Redemption Date.
In compliance with the Comprehensive National Energy Policy Act of 1992
(H.R. 776), and the Interest and Dividend Compliance Act of 1983, the Paying Agent is required to
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withhold 31% from payments of principal to individuals who fail to furnish valid Taxpayer
Identification Numbers. A completed Form W-9 should be presented with your bond.
The above-referenced CUSIP numbers were assigned to these issues by Standard &
Poor's Corporation and are intended solely for bondholders' convenience. Neither the Paying Agent
nor the District shall be responsible for selection or use of the CUSIP numbers, nor is any
representation made as to their correctness on the 1990 Bonds or as indicated in any redemption
notice.
Dated
BANK ONE, N.A.,
Registrar
By:_
Title:
(End of Form of Notice)
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Section 25. Direction to Take Authorizing Action. The President, Secretary, and
the officers of the District be, and they hereby are, authorized and directed to take all action necessary
or appropriate to effectuate the provisions of this Resolution including without limiting the generality
of the foregoing, the original or additional printing of the Bonds and Registered Coupons in such
quantities as may be convenient, qualification of the Bonds and Registered Coupons for registration
with a securities depository, the execution of such certificates as may reasonably be required by the
Underwriter, including without limitation certificates relating to the execution of the Bonds and
Registered Coupons, the tenure and identity of the District officials, the assessed valuation and
indebtedness of the District, the rate of taxes levied against taxable property within the District, the
delivery of the Bonds and Registered Coupons, the expectations of the District with respect to the
investment of the proceeds of the Bonds and Registered Coupons, the receipt of the purchase price
and the absence of litigation, pending or threatened, if in accordance with the facts, affecting the
validity thereof.
The President or the Treasurer is hereby authorized and directed to execute and deliver
the Sale Certificate and to determine and approve the final determinations contained therein for the
Bonds and Registered Coupons.
Section 26. Successor Registrar or Paying Agent. The Registrar or Paying Agent
may resign at any time on 30 days' prior written notice to the District. The District may reasonably
determine that said Registrar or Paying Agent has been incapable of fulfilling its duties and may
remove said Registrar or Paying Agent upon 30 days' prior written notice to the Registrar and/or
Paying Agent, as the case may be. No resignation or removal of the Registrar or Paying Agent shall
take effect until a successor has been appointed; provided, that if no successor is appointed by the end
of 90 days, the Paying Agent or Registrar may petition a court of competent jurisdiction to appoint
a successor. If the Registrar or Paying Agent initially appointed shall resign, or if the District shall
remove said Registrar or Paying Agent, the District may, upon notice mailed to each Registered
Owner of any Bond, at the address last shown on the registration books, appoint a successor Registrar
or Paying Agent, or both. Every such successor Registrar or Paying Agent shall be a bank or trust
company located in and in good standing in the United States and having a shareowners' equity (e.g.,
capital stock, surplus and undivided profits), however denominated, not less than $10,000,000 or shall
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be an officer of the District. It shall not be required that the same institution serve as both Registrar
and Paying Agent hereunder, but the District shall have the right to have the same institution serve
as both Registrar and Paying Agent hereunder.
Any company or national banking association into which the Registrar or Paying
Agent may be merged or converted or with which it may be consolidated or any company or national
banking association resulting from any merger, conversion or consolidation to which it shall be a
party or any company or national banking association to which the Registrar or Paying Agent may
sell or transfer all or substantially all of its corporate trust business, provided such company shall be
eligible, shall be the successor to such Registrar or Paying Agent without the execution or filing of
any paper or further act, anything herein to the contrary notwithstanding.
Section 27. Approvals, Authorizations, and Amendments. The forms of the
Registrar Agreement, the Escrow Agreement, the Letter of Representations, and the Continuing
Disclosure Certificate are hereby approved. The District shall enter into and perform its obligations
under the Registrar Agreement, the Escrow Agreement, the Letter of Representations, Continuing
Disclosure Certificate and the Purchase Contract in the forms of each of such documents presented
at this meeting with only such changes therein as are not inconsistent herewith or, with respect to the
Purchase Contract, with such changes as may be approved by the President or the Treasurer and
subject to the parameters and restrictions contained in the Resolution; and the President is hereby
authorized and directed to execute the Registrar Agreement, the Escrow Agreement, the Letter of
Representations, and the Continuing Disclosure Certificate. The President or the Treasurer is hereby
authorized and directed to execute the Purchase Contract. The Secretary is hereby authorized to
execute and to affix the seal of the District to the Registrar Agreement, the Escrow Agreement and
the Purchase Contract, and the President and Secretary are further authorized to execute and
authenticate such other documents, instruments or certificates as are deemed necessary or desirable
by bond counsel in order to issue and secure the Bonds and Registered Coupons. Such documents
are to be executed in substantially the forms hereinabove approved, provided that such documents
may be completed, corrected or revised as deemed necessary by the parties thereto in order to carry
out the purposes of this Resolution. Copies of all of the documents shall be delivered, filed and
recorded as provided therein.
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The proper officers of the District are hereby authorized and directed to prepare and
furnish to bond counsel certified copies of all proceedings and records of the District relating to the
Bonds and Registered Coupons and such other affidavits and certificates as may be required to show
the facts relating to the authorization and issuance thereof as such facts appear from the books and
records in such officers' custody and control or as otherwise known to them.
The approval hereby given to the various documents referred to above includes an
approval of such additional details therein as may be necessary and appropriate for their completion,
deletions therefrom and additions thereto as may be approved by bond counsel prior to the execution
of the documents. The execution of any instrument by the appropriate officers of the District herein
authorized shall be conclusive evidence of the approval by the District of such instrument in
accordance with the terms hereof.
Section 28. Official Statement. The distribution and use of the Preliminary Official
Statement by the Underwriter is in all respects hereby ratified, approved and confirmed. The
President is authorized and directed to approve, on behalf of the District, a final Official Statement
for use in connection with the offering and sale of the Bonds and Registered Coupons. The execution
of a final Official Statement by the President shall be conclusively deemed to evidence the approval
of the form and contents thereof by the District.
Section 29. Contract with Bondholders. After any of the Bonds and Registered
Coupons have been issued, this Resolution shall constitute a contract between the District and the
holder or holders of the Bonds and Registered Coupons and shall be and remain irrepealable until the
Bonds and the interest thereon shall have been fully paid, satisfied and discharged.
A. The District may, without the consent of or notice to the Owners, adopt one
or more resolutions supplemental hereto, which supplemental resolutions shall thereafter form a part
hereof, for any one or more of the following purposes:
(i) To cure any ambiguity, or to cure, correct or supplement any formal
defect or omission or inconsistent provision contained in this Resolution, to make any provision
necessary or desirable due to a change in law, to make any provisions with respect to matters arising
under this Resolution, or to make any provisions for any other purpose if, in each case, such
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provisions are necessary or desirable and do not adversely affect the interests of the Registered
Owners;
(ii) To pledge additional revenues, properties or collateral as security for
the Bonds;
(iii) To grant or confer upon the Registrar for the benefit of the Registered
Owners any additional rights, remedies, powers or authorities that may lawfully be granted to or
conferred upon the Registered Owners; or
(iv) To qualify this Resolution under the Trust Indenture Act of 1939.
B. Except for amendatory or supplemental resolutions adopted pursuant to
paragraph A hereof, the Owners of not less than two-thirds (2/3) in aggregate principal amount of the
Bonds then Outstanding shall have the right, from time to time, to consent to and approve the
adoption by the District of such resolutions amendatory or supplemental hereto as shall be deemed
necessary or desirable by the District for the purpose of modifying, altering, amending, adding to, or
rescinding, in any particular, any of the terms or provisions contained in this Resolution; provided
however, that without the consent of the Owners of all the Bonds affected thereby, nothing herein
contained shall permit, or be construed as permitting:
(i) a change in the terms of the maturity of any Bond, in the principal
amount of any Bond or the rate of interest thereon, or in the terms of prior redemption of any Bond;
(ii) an impairment of the right of the Owners to institute suit for the
enforcement of any payment of the principal of or interest on the Bonds when due;
(iii) a privilege or priority of any Bond or any interest payment over any
other Bond or interest payment; or
(iv) a reduction in the percentage in principal amount of the Bonds the
consent of whose Owners is required for any such amendatory or supplemental resolution.
If at any time the District shall desire to adopt an amendatory or supplemental
resolution for any of the purposes of this paragraph B, the District shall cause notice of the proposed
adoption of such amendatory or supplemental resolution to be given by mailing such notice by
certified or registered first-class mail to the Underwriter and to each Owner at the address shown on
the registration books of the Registrar, at least thirty days prior to the proposed date of adoption of
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any such amendatory or supplemental resolution. Such notice shall briefly set forth the nature of the
proposed amendatory or supplemental resolution and shall state that copies thereof are on file at the
offices of the District or some other suitable location for inspection by all Owners. If, within sixty
days or such longer period as shall be prescribed by the District following the giving of such notice,
the Owners of not less than the required percentage in aggregate principal amount of the Bonds then
outstanding at the time of the execution of any such amendatory or supplemental resolution shall have
consented to and approved the execution thereof as herein provided, no 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 adoption and effectiveness thereof, or to enjoin or restrain the
District from adopting the same or from taking any action pursuant to the provisions thereof.
Section 30. Pledge of Revenues. The creation, perfection, enforcement, and priority
of the pledge of revenues to secure or pay the Bonds and Registered Coupons as provided herein
shall be governed by Section 11-57-208 of the Supplemental Act and this Resolution. The revenues
pledged for the payment of the Bonds and Registered Coupons, as received by or otherwise credited
to the District, shall immediately be subject to the lien of such pledge without any physical delivery,
filing, or further act. The lien of such pledge on the revenues pledged for payment of the Bonds and
Registered Coupons and the obligation to perform the contractual provisions made herein shall have
priority over any or all other obligations and liabilities of the District. 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 District irrespective of whether such persons have notice of such liens.
Section 31. No Recourse against Officers and Agents. Pursuant to Section 11-57-
209 of the Supplemental Act, if a member of the Board, or any officer or agent of the District acts in
good faith, no civil recourse shall be available against such member, officer, or agent for payment of
the principal, interest or prior redemption premiums on the Bonds. Such recourse shall not be
available either directly or indirectly through the Board or the District, or otherwise, whether by virtue
of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of
the Bonds or Registered Coupons and as a part of the consideration of their sale or purchase, any
person purchasing or selling such Bond specifically waives any such recourse.
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Section 32. Conclusive Recital. Pursuant to Section 11-57-210 ofthe Supplemental
Act, the Bonds shall contain a recital that they are issued pursuant to certain provisions of the
Supplemental Act. Such recital shall be conclusive evidence of the validity and the regularity of the
issuance of the Bonds after their delivery for value.
Section 33. Severability. 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.
Section 34. Repealer. All acts and resolutions in conflict with this Resolution are
hereby rescinded, annulled and repealed. This repealer shall not be construed to revive any act or
resolution, or part thereof, heretofore repealed.
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ADOPTED AND APPROVED this January 23, 2001.
Chairman of the Board
and President
(SEAL)
Attest:
Secretary
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STATE OF COLORADO )
COUNTY OF EAGLE ) SS.
AVON METROPOLITAN )
DISTRICT )
I, , the Secretary of Avon Metropolitan District, Eagle County,
Colorado (the "District"), do hereby certify:
1. The foregoing pages are a true and correct copy of a resolution (the
"Resolution") passed and adopted by the Board of Directors (the "Board") of the District at a regular
meeting held on January 23, 2001.
2. The Resolution was duly moved and seconded and the Resolution was adopted
at the meeting of January 23, 2001, by an affirmative vote of a majority of the members of the Board
as follows:
Those Voting Aye:
Those Voting Nay:
Those Absent:
Those Abstaining:
3. The members of the Board were present at such meeting and voted on the
passage of such Resolution as set forth above.
4. The Resolution was approved and authenticated by the signature of the
Chairman of the Board and President, sealed with the District seal, attested by the Secretary 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.
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6. Notice of the meeting of January 23, 2001, in the form attached hereto as
Exhibit A was posted in at least three places within the limits of the District, and, in addition, such
notice was posted in the office of the Eagle County Clerk and Recorder not less than three days prior
to the meeting in accordance with law.
WITNESS my hand and the seal of said District affixed this day of January,
2001.
Secretary
(SEAL)
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EXHIBIT A
(Notice of Meeting)
H:\CLIENIISSHAVER\001044006 Avon Metro\bond resolution versi¢q 6.wpd
1/16/01 10:28 am J 1
TOWN OF AVON
REGULAR COUNCIL MEETING AGENDA
January 23, 2001 - 5:30 PM
1. Call to Order / Roll Call I- 3
2. Citizen Input
3. Ordinances
a.) First Reading of Ordinance No. 01-01, Series of 2001, An Ordinance of the Town of
Avon, Eagle County, Colorado Granting a Franchise to Holy Cross Energy, Its
Successors and Assigns, to Locate, Build, Install, Construct, Acquire, Purchase, Extend,
Maintain, Repair and Operate Into, Within and Through the Town of Avon, All
l ' ?? ?? Necessary and Convenient Facilities for the Purchase, Generation, Transmission and
Distribution of Electrical Energy, and to Furnish, Sell and Distribute Said Electrical
?- Energy to the Residents of the Town for Light, Heat, Power and Other Purposes by
Means of Conduits, Cables, Poles and Wires Strung Thereon, or Otherwise On, Over,
Under, Along, Across and Through All Streets and Other Public Ways in Said Town of
Avon, Colorado, and Fixing the Terms and Conditions Thereof
4. Resolutions
5. Unfinished Business
6. New Business
7. Town Manager Report'G- 'I)C?
8. Town Attorney Report
9. Mayor Report
10. Other Business
1-'l &- i/V sol L"-,-h ?V C) i - ('-' -
11. Consent Agenda
a.) Approval of the January 9, 2001 Council Meeting Minutes
b.) Financial Matters
c.) Fire District Maintenance Agreement
d.) Holy Cross Energy - Tract G Easement
e.) Lot C - Tract G Easement
f.) Resolution No. 01-05, Series of 2001, A Resolution Approving an Order of the Town
Manager
12. Adjournment
i A
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TOWN OF AVON
ORDINANCE NO. o l
(SERIES OF 2001)
AN ORDINANCE OF THE TOWN OF AVON, EAGLE COUNTY,
COLORADO GRANTING A FRANCHISE TO HOLY CROSS ENERGY, ITS
SUCCESSORS AND ASSIGNS, TO LOCATE, BUILD, INSTALL,
CONSTRUCT, ACQUIRE, PURCHASE, EXTEND, MAINTAIN, REPAIR AND
OPERATE INTO, WITHIN AND THROUGH THE TOWN OF AVON, ALL
NECESSARY AND CONVENIENT FACILITIES FOR THE PURCHASE,
GENERATION, TRANSMISSION AND DISTRIBUTION OF ELECTRICAL
ENERGY, AND TO FURNISH, SELL AND DISTRIBUTE SAID ELECTRICAL
ENERGY TO THE RESIDENTS OF THE TOWN FOR LIGHT, HEAT, POWER
AND OTHER PURPOSES BY MEANS OF CONDUITS, CABLES, POLES AND
WIRES STRUNG THEREON, OR OTHERWISE ON, OVER, UNDER, ALONG,
ACROSS AND THROUGH ALL STREETS AND OTHER PUBLIC WAYS IN
SAID TOWN OF AVON, COLORADO, AND FIXING THE TERMS AND
CONDITIONS THEREOF.
NOW THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF
THE TOWN OF AVON, COLORADO:
M:\Word\Franchise Documents\Avon\Current Draft 12.5.00.doc
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ARTICLE 1
SHORT TITLE
1.1 This Ordinance shall be known and may be cited as the "Holy Cross Energy Franchise
Ordinance."
ARTICLE 2
DEFINITIONS
For the purpose of this Ordinance, the following terms shall have the meaning given herein:
2.1 "Town" is the Town of Avon, Eagle County, Colorado, the municipal corporation as is
now constituted or as the same may be enlarged or expanded from time to time through
annexation.
2.2 "Company" refers to Holy Cross Energy, a Colorado corporation, its successors and
assigns.
2.3 "Council" refers to the legislative body of the Town, known as the Town Council of the
Town of Avon, Colorado.
2.4 "Facilities" refers to all overhead and underground electric facilities, buildings, and
structures necessary to provide electricity into, within and through the Town including,
but not limited to, such essential apparatus, appliances, plants, systems, substations,
works, transmission and distribution lines and structures, anchors, cabinets, cables,
conduits, guy posts and guy wires, meters, microwave and communication facilities,
overhead and underground lines, pedestals, poles, regulators, sectionalizers, switchgears,
transformers, various pad mounted and pole mounted equipment, vaults, wires, and all
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other related electrical equipment required for the distribution, generation, maintenance,
operation, purchase, and transmission of electrical energy.
2.5 "Public Easements" refers to easements created and available for use by any public utility
for its facilities.
2.6 "Private Easements" refers to easements created and available only for use by the
Company for its Facilities, or by the Company and other selected users or utilities.
2.7 "Residents" refers to and includes all persons, businesses, industry, governmental
agencies, and any other entity whatsoever, presently maintaining a residence, business,
farm, ranch or other enterprise located within, in whole or in part, the boundaries of the
Town.
2.8 "Revenues", unless otherwise specified, refers to and are the gross amounts of money that
the Company receives from its customers within the Town from the sale of electrical
energy for any particular period of time.
2.9 "Streets and Other Public Ways" refers to streets, alleys, viaducts, bridges, roads, lanes
and other public ways in the Town, subject to limitations stated herein.
ARTICLE 3
GRANT OF FRANCHISE
3.1 Grant of Right to Serve. Subject to the conditions, terms and provisions contained in this
Franchise, the Town hereby grants to the Company a non-exclusive right, privilege and
authority to locate, build, install, construct, acquire, purchase, extend, maintain, repair
and operate into, within and through all of the Town boundaries all necessary and
convenient Facilities for the purchase, generation, transmission, and distribution of
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electrical energy. Such grant is made together with the non-exclusive right and privilege
to furnish, sell, and distribute said electrical energy to the Residents for light, heat, power
and other purposes.
3.2 Scope of Grant. Such grant includes the right and the obligation to furnish electrical
energy using the Company's Facilities, either overhead, underground, or otherwise, on,
over, under, along, across and through any and all Streets and Other Public Ways, and on,
over, under, along, across and through any extension, connection with, or continuation of,
the same and/or on, over, under, along, across and through any and all such new Streets
and Other Public Ways as may be hereafter laid out, opened, located, or constructed
within the boundaries of the Town. The Company is further granted the right, privilege
and authority to excavate in, occupy and use any and all Streets and Other Public Ways
and Public Easements. Any such excavation, occupation and use must be in accordance
with Town standards and regulations, and will be undertaken under the supervision of the
properly constituted authority of the Town for the purpose of bringing electrical energy
into, within and through the Town and supplying electrical energy to the Residents.
3.3 Service to Town Facilities. The Town hereby grants to the Company the right, privilege,
and authority to provide street and security lighting to the Town, and to serve all Town
owned or operated structures, plants, equipment, or Town apparatus and facilities,
including the right, privilege, and authority to furnish, sell, and distribute electrical
energy necessary for such.
3.4 Underground Policy of the Town. Except for maintenance, operation, relocation, repair,
and upgrade of the Company's existing overhead Facilities, the Company shall at all
times recognize the Town's preference, policies, and customary practice that distribution
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power lines be located underground. Transformers, switchgear, and other similar
equipment associated with underground construction, must, by necessity, be located
above ground. The Company's adherence to such policies shall at all times be subject to
Article 12 - Undergrounding.
3.5 Duration of Franchise. This Ordinance shall be in full force and effect from and after its
passage as by law required and the terms, conditions and covenants hereof shall remain in
full force and effect for a period of twenty (20) years from and after such enactment.
ARTICLE 4
SPECIFIC ELEMENTS OF GRANT
4.1 Recreational Areas. The Company shall not have the right to locate, build, or construct
Facilities under, across, or through public parks or recreational areas, open space or other
Town owned property located within the Town except as expressly set forth in this
Franchise or with prior written approval granted by the Town's Council. This Ordinance
shall never be construed to limit the Company's rights of eminent domain as provided by
law.
4.2 Trees and Shrubs. The Company shall have the right to control the growth of trees and
shrubs as may be reasonably necessary to protect its Facilities. The Company may use
machinery or other lawful methods to control such growth, but shall not use chemicals for
-such purpose.-Annually; on a date mutually agreed to by both parties, representatives of
each party shall meet and/or consult to discuss problems related to the means and
methods of controlling such growth. Prior to cutting down or removing any tree, the
Company shall consult with a representative of the Town for the purpose of determining
5
whether such cutting or removal is the only reasonable and cost effective means of
protecting the Company's Facilities.
4.3 Location of Company's Facilities. Wherever reasonable and practicable, the Company
will endeavor to install its Facilities within Public Easements. The Company shall locate
its Facilities within the Town so as to cause minimum interference with any of the
Town's facilities or property, including without limitation water lines, sewer lines, storm
drains, and the proper use of Streets and Other Public Ways, and so as to cause minimum
interference with the rights or reasonable convenience of property owners whose property
adjoins any of the said Streets and Other Public Ways.
4.4 Restoration of Public and Private Improvements. Should it become necessary for the
Company, in exercising its rights and performing its duties hereunder, to interfere with
any sidewalk, graveled or paved street, road, alley, water line, sewer line, storm drain, or
any other public or private improvement, the Company shall at its own expense and in a
quality workmanlike manner, repair or cause to be repaired and restored to its original
condition such sidewalk, graveled or paved street, road, alley, water line, sewer line,
storm drain, or other public or private improvement after the installation of its Facilities,
provided, however, that upon failure of the Company to do such required repairs within a
reasonable time and in a workmanlike manner, the Town may perform the required work
and charge the Company for all reasonable costs thereof.
4.5 Use of Facilities. The Company shall have the right to make such use of its Facilities and
other property owned by Company, for uses other than the uses contemplated in the
Franchise Ordinance, as it deems proper so long as such other uses do not interfere with
its ability to supply electrical energy.
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4.6 Changed Conditions - Overhead. If at any time it shall be necessary to change the
position of any overhead electrical Facilities of the Company to permit the Town to lay,
make or change street grades, pavements, sewer mains, water mains, storm drains, or
other Town works, such changes shall be made by the Company at its own expense, after
reasonable notice from the Town. This provision shall not apply to any changes that
result from-new development within the Town. The costs associated with changing
overhead electric facilities to accommodate such new development shall be borne by the
developer, the Town or some other party, but not the Company.
4.7 Compliance with Town Requirements. The Company shall comply with all Town
requirements regarding curb and pavement cuts, excavating, digging and related
construction, maintenance and operational activities except as otherwise provided for in
this Franchise Ordinance.
4.8 Town Review of Construction and Design. Prior to construction of any significant
Facilities within the Town, if requested by the Town, the Company shall furnish to the
Town the plans for such proposed construction. In addition, the Company shall assess and
report on the impact of its proposed construction on the Town environment. Such plans
and reports may be reviewed by the Town to ascertain, inter alia, (1) that all applicable
laws including building and zoning codes and air and water pollution regulations are
complied with; (2) that aesthetic and good planning principles have been given due
-consideration; and (3) that adverse impact on the environment has been minimized.
4.9 Capital Improvement Projects. The Company and the Town shall inform one another of
any capital improvement projects anticipated within the Town that may impact the
facilities or operations of either party. The party proposing such capital improvements
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shall inform the other party of the nature of such improvements within a reasonable time
after plans for such improvements have been substantially formulated. Each party shall
cooperate in the timely exchange of all necessary information, design data, drawings, and
reports to properly assess and evaluate the potential impacts of said improvements.
4.10 Maintenance of Facilities. The Company shall install, maintain, repair, replace, and
upgrade its Facilities to ensure both the adequacy of, and quality of, electric service to all
Residents. All excavation and construction work done by or under the authority of the
Company shall be done in a timely and expeditious manner which minimizes the
inconvenience to the Town and all Residents.
4.11 Town Not Required to Advance Funds. Upon receipt from the Town of an authorization
to proceed, and a promise to pay for construction, the Company shall extend its Facilities
to the Town for municipal uses therein or for any municipal facility outside the
--- - boundaries of the Town and within the Company's certificated territory, without
requiring the Town to advance funds prior to construction.
4.12 Scheduled Interruptions. The Company shall, whenever possible, give notice, either oral
or written, to the Town and its affected Residents, of planned service interruptions of
significant duration.
4.13 Cooperation with Other Utilities. When undertaking a project of undergrounding, the
Town and the Company shall work with other utilities or companies to attempt to have all
lines undergrounded as part of the same project. The Company shall not be required to
pay the costs of any other utility in connection with work under this section.
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ARTICLE 5
RATES, REGULATIONS, UNIFORMITY OF SERVICE, AND UPGRADES
5.1 Furnishing Electrical Energy. The Company shall furnish electrical energy within the
boundaries of the Town, and to the Residents thereof at the Company's applicable and
effective rates and under the terms and conditions set forth in the Rate Schedules,
Standards for Service, Rules and Regulations, and Service Connection and Extension
Policies, adopted by and on file with the Company, subject only to regulations thereof as
is provided by law. The Company shall not, as to rates, charges, service, facilities, rules,
regulations or in any other respect, make or grant any preference or advantage to any
Resident, provided that nothing in this grant shall be taken to prohibit the establishment
from time to time of a graduated scale of charges and classified rate schedules to which
any customer coming within an established classification would be entitled.
5.2 Facility Upgrades. The Company will, from time to time, during the term of this
Franchise make such improvements, enlargements and extensions of its Facilities
incorporating, when reasonable and practical, technological advances within the industry
as the business of the Company and the growth of the Town justify, in accordance with
its Standards for Service, Rules and Regulations, and Service Connection and Extension
Policies for electric service concurrently in effect and on file with the Company, subject
only to regulations thereof as is provided by law.
5.3 Reliable Supply of Electricity. The Company shall take all reasonable and necessary
steps to provide an adequate supply of electricity to its customers at the lowest reasonable
cost consistent with long-term reliable supplies. If the supply of electricity to its
customers should be interrupted, the Company shall take all necessary and reasonable
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actions to restore such supply within the shortest practicable time. In the event the
Company's electric system, or any part thereof, is partially or wholly destroyed or
incapacitated, the Company shall use due diligence to restore its system to satisfactory
service within the shortest practicable time.
5.4 Maps and Regulations. The Company shall submit copies of its Standards for Service,
Service Connection and Extension Policies, Rules and Regulations, and maps of its
Facilities within the Town boundaries to the Town Clerk. All changes in such maps,
Standards for Service, Rules and Regulations, and policies, shall be submitted to the
Town as the same may from time to time occur.
5.5 Subdivision Review. The Company shall analyze any subdivision plats or planned unit
development plans submitted to it by the Town and respond to any request by the Town
for information regarding the adequacy of its Facilities necessary to serve such proposed
plat or plan and answer any other questions posed to the Company by the Town regarding
said plat or plan as are within the knowledge of the Company. The Company shall
respond to said requests or questions within reasonable time limits set by the Town's
Subdivision Regulations.
5.6 Interrelationship of Laws, Rates, Regulations and Ordinances. The Company shall
comply with all County, State or Federal laws, and rules and regulations related to the
subject matter hereof. The Company also agrees to abide by all ordinances and
resolutions of the Town, unless and except to the extent that this Franchise Ordinance
shall relieve the Company of the obligation to comply with the terms and conditions of
such other ordinances or any other provisions hereof. The Company, from time to time,
may promulgate such rules, regulations, terms and conditions governing the conduct of
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its business, including the use of electrical energy and the payment therefor, and the
interference with, or alteration of, any of the Company's property upon the premises of its
customers as shall be necessary to provide a safe, continuous and uninterrupted service to
each and all of such customers and the proper measurement thereof and payment therefor.
Any such rules, regulations, terms and conditions must not be inconsistent with this
Franchise Ordinance, but no ordinance of the Town may regulate the Company's rates or
charges for the furnishing of electrical energy, or shall lessen the safety of providing such
energy to its customers, nor shall any such ordinance alter the manner in which service is
extended to such customers.
ARTICLE 6
USE OF COMPANY FACILITIES
6.1 Use of Poles by Torn. The Town shall have the right, without cost, to jointly use all
poles and suitable overhead structures within the Town for the purpose of stringing wires
thereon for any reasonable Town authorized use; which use shall not include the
distribution or transmission of electricity; provided, however, that the Company shall
assume no liability, nor shall it be put to any additional expense, in connection therewith,
and said use shall not interfere in any unreasonable manner with the Company's use of
same, or the use thereof by the Company's permittees, licensees, or other existing users
of such Facilities. The Company agrees to permit Town licensees, permittees and
franchisees, except those holding an electric utility franchise or license from the Town, to
use its Facilities upon reasonable terms and conditions to be contractually agreed upon
with the Company, in writing.
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6.2 Joint Use of Trenches. If the Company installs new electric underground conduit or
opens a trench or replaces such conduit, the Company shall provide adequate advance
notice to permit additional installation of similar facilities in the same trench by the
Town, or installation of other types of municipal facilities, subject to applicable rules and
regulations. If the Town elects to use the trench it will so notify the Company. The
Town shall provide the materials at no expense to the Company. The Town shall
reimburse to the Company only those monies paid by the Company to an independent
contractor for labor costs to install Town furnished materials by such independent
contractor. The Company shall include copies of invoices from the independent
contractor to substantiate the Company's request for reimbursement. If the installation of
Town furnished materials is performed solely by the Company's employees, there will be
no labor charge to the Town. Such action by the Town shall not unnecessarily interfere
with the Company's Facilities or delay the accomplishment of the project. The Town
shall be responsible for ensuring that required vertical and horizontal separations between
its facilities and that of the Company's is strictly maintained. The Town and Company
shall jointly hold each other harmless from any liability or damage resulting from their
respective facilities being installed in a joint trench.
ARTICLE 7
INDEMNIFICATION AND POLICE POWER
7.1 Town Held Harmless. The Company shall indemnify, defend and save the Town, its
officers and employees, harmless from and against all liability or damage and all claims
or demands whatsoever in nature arising out of the operations of the Company within the
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Town pursuant to this Franchise, and the securing of, and the exercise by the Company
of, the Franchise rights granted in this ordinance and shall pay all reasonable expenses
arising therefrom. The Town shall .provide prompt written notice to the Company of the
pendency of any claim or action against the Town arising out of the exercise by the
Company of its Franchise rights. The Company will be permitted, at its own expense, to
appear and defend or to assist in defense of such claim. Notwithstanding any provision
hereof to the contrary, the Company shall not be obligated to indemnify, defend or hold
the Town harmless to the extent of any claim, demand, or lien arising out of, or in
connection with, any negligent act or failure to act by the Town or any of its officers,
employees, or agents unless the Company shall become obligated to indemnify, defend or
hold the Town harmless by virtue of the comparative negligence laws of Colorado.
7.2 Police Power Reserved. The right is hereby reserved to the Town to adopt from time to
time, in addition to the provisions herein contained, such ordinances as may be deemed
necessary in the exercise of its police power, provided that such regulations shall be
reasonable and not destructive of the rights herein granted, and not in conflict with the
laws of the State of Colorado, or with orders of other authorities having jurisdiction in the
premises.
ARTICLE 8
FRANCHISE FEE -- - -_--
8.1 Franchise Fee. In consideration for the grant of this Franchise, the Company shall pay to
the Town a sum equal to three percent (3%) of its gross Revenues collected from the sale
of electricity within the boundaries of the Town. Electric Revenues received from service
13
to the Town facilities will not be assessed a 3% fee under this section nor will the Town
be paid the 3% fee from such Revenues collected from Town facilities. To the extent
required by law, the three percent (3%) shall be surcharged to the Residents. This
surcharge is in addition to any charges specified in the Company's tariffs and any
applicable taxes.
8.2 Change of Franchise Fee - Town Initiated. The Town expressly reserves the right to
notify the Company of its desire to revise the Franchise Fee to a different percentage of
revenue prior to October 1 of the even numbered years during the term of this franchise,
which revised Franchise Fee shall become effective on the next succeeding January 1,
following notification. Provided, however, that the maximum amount of the Franchise
Fee shall be five percent (5%) of the Revenues collected within the boundaries of the
Town. Notification to the consumer shall be given by the Town no less than thirty (30)
-days- prior -to-January 1, the -effective--date-of the scheduled increase.-- All expenses
associated with notification shall be paid entirely by the Town.
8.3 Payment. Payment of the Franchise Fee shall be made by the Company to the Town on
or before thirty (30) days after the end of each quarter of each calendar year for the
preceding three (3) month period, but shall be adjusted for the portions of the calendar
quarters at the beginning and at the end of this Franchise. All payments shall be made to
the Town Clerk.
8.4 Revenue Audit. For the purpose of ascertaining or auditing the correct amount to be paid
under the provisions of this Article, the Company shall file with the Town Manager, or
such other official as shall be designated by the Town from time to time, a statement, in
such reasonable form as the Town may require, showing the total gross receipts received
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by the Company from the sale of electricity to Residents within the boundaries of the
Town for the preceding three (3) month period. The Town Manager or any official
appointed by the Council shall have access to the books of said Company for the purpose
of confirming the gross Revenues received from operations within the Town.
8.5 Correction of Underpayment/Overpay. Should either the Company or Town
discover either an underpayment or overpayment of the Franchise Fee, the party making
such discovery shall inform the other party within a reasonable time. If the error is
substantiated as an underpayment, the Company shall make payment of the deficiency
within thirty (30) days of the date the error was substantiated. If the error is substantiated
as an overpayment, a credit equal to the overpayment will be applied to the next
Franchise payment due the Town.
8.6 Occupation Tax Alternative. In the event the said Franchise Fee levied herein should be
declared invalid and/or shall be set aside by a Court of competent jurisdiction, then, and
in such event, and in lieu thereof, the Town may thereafter levy an occupation tax upon
the Company, not to exceed in any one calendar year five percent (5%) of the gross
Revenues collected from the sale of electricity within the boundaries of the Town for that
calendar year. Such occupation tax shall be adjusted for any Franchise Fees previously
paid to the Town in such calendar year. In the event the Town shall enact such an
occupation tax, in lieu of the Franchise Fee, all of the remaining terms, conditions and
provisions of this Ordinance-shall remain in full force and effect for the period stated
herein. Such occupation tax ordinance or enactment shall be designed to meet all legal
requirements to ensure that it is not construed as an income tax.
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8.7 Franchise Fee Payment in Lieu of Other Fees. The Franchise Fee paid by the Company is
accepted by the Town in lieu of any occupation tax, license tax, permit charge, inspection
fee, contractors license fees, or similar tax on the privilege of doing business or in
connection with the physical operation thereof, but does not exempt the Company from
any lawful taxation upon its property or any other tax not related to the Franchise or the
physical operation thereof and does not exempt the Company from payment of head taxes
or other fees or taxes assessed generally upon business.
8.8 Payment of Expenses Incurred by Town in Relation to Ordinance. At the Town's option,
the Company shall pay in advance or reimburse the Town for expenses incurred in
publication of notices and ordinances and for photocopying of documents arising out of
the negotiations or process of obtaining this franchise.
8.9 Termination of Franchise. If this Franchise is terminated by either the Company or the
--Town for whatever reason, or is-declared null and void, all Franchise Fees or occupation
taxes levied herein shall be suspended as of the date the Franchise is legally terminated.
Final payment of any Franchise Fee or occupation tax owed and due the Town shall be
made on or before thirty (30) days after the date the Franchise is legally terminated.
ARTICLE 9
REPORTS
9.1 Reports. The Company shall submit reasonable and necessary reports containing, or
based upon, information readily obtainable from the Company's books and records as the
Town may request with respect to the operations of the Company under this Franchise,
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and shall, if requested, provide the Town with a list of real property within the Town
which is owned by the Company.
9.2 Copies of Tariffs. Upon request, the Company shall furnish the Town with copies of any
tariffs currently in use.
ARTICLE 10
ADMINISTRATION
10.1 Amendments. At any time during the term of this Franchise, the Town through its
Council, or the Company, may propose amendments to this Franchise by giving thirty
(30) days written notice to the other party of the proposed amendment(s) desired, and
both parties thereafter, through their designated representatives, shall within a reasonable
time, negotiate in good faith in an effort to agree upon a mutually satisfactory
amendment(s). No amendment(s) to this Franchise shall be effective until mutually
agreed upon in writing by the Town and the Company and until all public notice
requirements pursuant to Colorado statutes, and ordinance requirements of the Town,
have been met. This section shall not apply to Franchise Fee changes under Article 8.
10.2 Revocation of Privileges by Condemnation. In the event, at any time during the term of
this Franchise, the Town shall condemn any of the Facilities of the Company within the
boundaries of the Town, and thereby revoke all or any part of the privilege and authority
herein granted to the Company to serve the Residents, then and in such event the Town
shall pay to the Company just compensation as provided by the laws of the State of
Colorado for such rights and facilities by reason of such condemnation.
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10.3 Compliance Impaired. Both the Company and the Town recognize there may be
circumstances whereby compliance with the provisions of this Franchise is impossible or
is delayed because of circumstances beyond the Company's or Town's control. In those
instances, the Company or Town shall use its best efforts to comply in a timely manner
and to the extent possible.
10.4 Company's Failure to Perform. It is agreed that in case of the failure of the Company to
perform and carry out any of the stipulations, terms, conditions, and agreements herein
set forth in any substantial particular, wherein such failure is within the Company's
control and with respect to which redress is not otherwise herein provided, the Town,
acting through its Council, may, after hearing, determine such substantial failure; and,
thereupon, after notice given the Company of such failure, the Company may have a
reasonable time, not less than ninety (90) days, unless otherwise agreed by the parties, in
which to remedy the conditions respecting which such notice shall have been given.
After the expiration of such time and the failure to correct such conditions, the Council
shall determine whether any or all rights and privileges granted the Company under this
ordinance shall be forfeited and may declare this Franchise null and void.
10.5 Ownership of Facilities. All Facilities used or placed by the Company, either within or
outside the boundaries of the Town shall be and remain the property of the Company.
10.6 Transfer of Rights. The Company shall not transfer or assign any rights under this
Franchise to a third party, excepting only corporate reorganizations of the Company not
including a third party, unless the Town shall approve in writing such transfer or
assignment. Approval of the transfer or assignment shall not be unreasonably withheld.
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10.7 Removal of Facilities. Upon the expiration of this Franchise, if thereafter the Company
Facilities shall not be used for electric, telephone, or cable TV purposes for a period of
twelve (12) successive months, the Town shall have the option of having the Company
remove such Facilities or claim such Facilities as its own. If the Town should require the
Company to remove its Facilities such removal shall only apply to those Facilities that
are above ground and have a visual impact on the surrounding area. If the Town elects to
have the Company remove the Facilities, it shall give written notice to the Company
within thirty (30) days after expiration of the twelve (12) month period above described
directing it to remove such Facilities, and the Company shall remove the same no later
than ninety (90) days after the date of such notice, unless the Company and the Town
agree to a longer period within which removal shall occur. Any Facilities, either
underground or overhead, remaining after the twelve (12) month, thirty (30) day, and
ninety (90) day periods above described, that have not been expressly claimed by the
Town or removed by the Company, shall be deemed to have been abandoned. Any cost
incurred by the Town in removing abandoned Facilities, and any liability associated with
Facilities abandoned by the Company shall be the liability of the Company. For any
Facilities claimed by the Town, any liability associated with such Facilities shall become
the liability of the Town.
10.8 Non-renewal of Franchise; Alternative Electric Service. If this Franchise is not renewed,
or if it is declared null and void, or the Company terminates any service provided for
herein for any reason, and the Town has not provided for alternative electric service to the
Residents, the Company shall not remove its Facilities and shall be obligated to continue
19
I .. .
electric service to the Residents until alternative electric service is provided. The
Company will not withhold any temporary services necessary to protect the public.
ARTICLE 11
COMMUNITY ENHANCEMENT FUND
11.1 Purpose. The Company is committed to programs designed to make a difference in
people's lives and the communities in which they reside. The Company will voluntarily
make monetary resources available to the Town for such programs and/or activities.
Programs for which such funds shall be spent shall be limited to: (1) Beautification
projects; (2) Energy conservation projects; (3) Equipment and technology upgrades for
schools; (4) Scholarship funds; (5) Acquisition of open space and/or park land and
development thereof; (6) Sponsorship of special community events; (7) Undergrounding
of overhead electric and other utility lines. Funds made available under this Article may
be spent for other purposes only with the express written consent of the Company. This
program has been initiated solely by the Company; the Town has not made the program a
requirement for this Franchise. Funding for this program is not a cost of doing business
but is a voluntary contribution by the Company.
11.2 Payments to the Fund. After enactment of this Ordinance, the Company will establish an
initial fund amount of $2,000.00. The Company shall then make annual payments to the
fund equal to one percent (1%) of its prior year's gross Revenues, prorated for the
portions of the months at the beginning and end of the term of this Franchise, collected
from the sale of electricity within the boundaries of the Town, or $2,000.00, whichever
amount is greater. Said payments shall be made into the fund no later than February 15`h
20
of the year subsequent to the year in which the gross Revenues are received by the
Company.
11.3 The Fund. The Fund established by the Company shall be maintained in a bank account
in the name of the Town, but shall be maintained separately from all other funds and
accounts held by the Town.
11.4 Payments from the Fund. All payments from the fund shall be for projects described in
Section 11.1 hereof. Prior to any such expenditure, authorization to withdraw from the
fund shall be given by resolution or ordinance duly enacted by the Council, and such
resolution or ordinance shall clearly describe the nature and purpose of the project for
which the expenditure is made. Prior to any expenditure, the Town shall notify the
Company of its intended use of the funds. Unless the Company objects, in writing, prior
to such expenditure, the Company shall have waived its right to object in the future if the
funds are expended for the use identified in the notice.
11.5 Audits. The Town may audit the Company's books related to gross Revenues collected
within the Town at any reasonable time and with reasonable prior notice. The Company
may audit the fund account, expenditures from the fund, and resolutions and ordinances
authorizing such expenditures at any reasonable time and with reasonable prior notice.
11.6 Forfeiture of Enhancement Funds. The Company shall have the express right to
temporarily suspend or terminate in full its annual contributions to the Enhancement
-Fund-if it-is determined that-funds allocated and paid-to the Town are being, or have been,
misappropriated, administered with bias or discrimination, or for other inappropriate
actions.
21
I .1 1
11.7 Advances of Funds. The Company shall consider advances of funds, subject to the
provisions of this Section, for all such projects that specifically involve undergrounding
of overhead lines or projects acceptable to the Company which are related to the
Company's existing Facilities. The Town shall make all reasonable attempts to plan and
budget use of the Fund without advancement of future Funds. However, if the Town
requests and the Company and the Town agree that it is in the mutual interest of both, the
Company shall anticipate Fund amounts to be available for up to three (3) years in
advance. Both parties shall enter into a special agreement concerning the advanced
Funds. Any amounts advanced shall be credited against amounts to be expended in
succeeding years until such advances are eliminated.
ARTICLE 12
- ?- t - -- - - - - ----UNDERGROUNDING
12.1 At Consumer's Request. If a customer within the Town should request that new facilities
be installed underground, or for the conversion of existing overhead facilities to
underground facilities, or if Town ordinances or resolutions require a customer or
customers to install facilities underground, the Company shall proceed in accordance with
its Line Extension Policy, Advice Letter Number 8, dated July 30, 1976 (herein "Line
Extension Policy") and in accordance with its Policy Statement, Conversion From
Overhead to Underground Facilities, June 15, 1988 (herein "Underground Conversion
Policy"), as each may from time to time be amended.
12.2 Town Requested Undergrounding. - -Except for the Company's- contributions to the
Community Enhancement Fund, which may be used by the Town to pay for the
22
1% • e )
undergrounding of the Company's Facilities, any request, requirement imposed by
resolution or ordinance, or other communication from the Town to the Company, asking,
or requiring the Company to underground new facilities or existing overhead facilities, or
move, remove, or replace existing underground facilities, shall be responded to in
accordance with the provisions of the Company's Line Extension Policy, Underground
-Conversion Policy, or other customary practice in use by the Company. The Town
acknowledges receipt of a copy of both policies.
12.3 Relocation of Underground Facilities. Nothing hereinabove shall be construed to
obligate the Company to pay for the removal and relocation of its Facilities where such is
at the request or demand of a person, or a public or private entity under circumstances
which require the party requesting or demanding such to pay for the relocation under
other provisions hereof, or under the provisions of the Company's Line Extension Policy,
Underground Conversion Policy, or other customary practice in use by the Company.
12.4 Governmental Mandates. This Franchise or the Town Municipal Code, as either may be
amended from time to time, shall not prohibit or limit the Company's right to enforce its
collection of the increased costs of new underground construction, or conversion, in
accordance with the provisions of the Company's Line Extension Policy, Underground
Conversion Policy, customary practices of the Company, or state law. Anything in this
Franchise, or in the Municipal Code, that would be a contributing factor to the ultimate
effect of-causing the Company to convert overhead electric lines or Facilities to
underground lines or Facilities, or which would result in new construction of lines or
Facilities being placed underground, when such could have been constructed overhead,
shall be deemed to be a mandatory requirement of the Town.
23
r?
ARTICLE 13
MISCELLANEOUS
13.1 Changes in Utility Regulation. In the event new legislation materially affects the terms
and conditions of this Franchise Ordinance, the parties agree to renegotiate the affected
terms and conditions in good faith. The parties hereto acknowledge that regulatory and
legislative changes in the electric utility, gas utility and other energy industries are
currently being discussed nationwide and statewide; that some changes in utility industry
sectors have already been implemented; and that other changes may be made in the
future, during the term of this Franchise. One likely scenario is the implementation of
open access to electric customers, and other energy customers, making such customers
available to all utilities, thus eliminating or limiting territorial protections. Under this
scenario one utility may contract to sell a type of energy to a customer, while another
---utility transports the energy to--the customer for a fee-charged to-the-other utility or the
customer.
The parties agree, that insofar as future changes in the utility laws will allow, the
Company shall always retain the right to bill customers for electric utility transportation
services and electric energy sales within the Town if it is the provider of either the
electric energy product or the transportation of such product. The parties agree that this
will provide the most efficient and convenient electric utility service to the Residents and
provide assurance to the Town of franchise fee collection for each component charged for
the sale and delivery of electric energy products within the boundaries of the Town.
24
K, I \ l-
13.2
13.3
For the Town: For the Companv:
Judy Yoder, Mayor Holy Cross Energy
Town of Avon Attention: General Manager
P. O. Box 975 P.O. Drawer 2150
400 Benchmark Road 3799 Highway 82
Avon, CO 81620 Glenwood Springs, CO 81602
13.4 Severability. Should any one or more provisions of this Franchise be determined to be
Successors and Assigns. The rights, privileges, franchises and obligations granted and
contained in this Ordinance shall inure to the benefit of and be binding upon the
Company, its successors and assigns.
Representatives. Both parties shall designate from time to time in writing representatives
to act as franchise agents for the Company and the Town. Such will be the persons to
whom notices shall be sent regarding any action to be taken under this Ordinance. Notice
shall be in writing and forwarded by certified mail or hand delivery to the persons and
addresses as hereinafter stated, unless the persons and addresses are changed at the
written request of either party. Until any such change shall hereafter be made, notices
shall be sent to the Town Mayor and to the Company's General Manager. Currently the
addresses for each are as follows:
illegal or unenforceable, all other provisions nevertheless shall remain effective;
provided, however, the parties shall forthwith enter into good faith negotiations and
proceed with due diligence to draft provisions that will achieve the original intent of
stricken provisions.
13.5 Entire Agreement. This Franchise constitutes the entire agreement of the parties. There
have been no representations made other than those contained in this Franchise.
25
L. I ! M
ARTICLE 14
APPROVAL
14.1 Town Approval. This grant of Franchise shall not become effective until approved by the
Town in accordance with its ordinances and the statutes of the State of Colorado.
14.2 Company Approval. The Company shall file with the Town Clerk its written acceptance
of this Franchise and of all its terms and provisions within fifteen (15) business days after
the final adoption of this Franchise by the Town. The acceptance shall be in the form and
content approved by the Town Attorney. If the Company shall fail to timely file its
written acceptance as herein provided, this Franchise shall become null and void.
14.3 Public Health, Safety and Welfare. The Council hereby finds, determines and declares
that this Ordinance is necessary and proper for the health, safety and welfare of the Town
and the Residents thereof.
INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED,
this day of , 2001, and a public hearing on this
Ordinance shall be held at the regular meeting of the Town Council of the Town of Avon,
Colorado on the day of 2001, at 5:30 p.m., in the
Municipal Building of the Town of Avon, Colorado.
Judy Yoder, Mayor
Attest:
Kris Nash, Town Clerk
26
INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED,
this day of , 2001.
Judy Yoder, Mayor
Attest:
Kris Nash, Town Clerk
APPROVED AS TO FORM:
Burt Levin, Town Attorney
27
MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL
HELD JANUARY 9, 2001
A regular meeting of the Town of Avon, Colorado was held in the Municipal Building,
400 Benchmark Road, Avon, Colorado in the Council Chambers.
The meeting was called to order by Mayor Judy Yoder at 5:30 PM. A roll call was taken
with Councilors Mike Brown, Debbie Buckley, Peter Buckley, Mac McDevitt and Mayor
Protem Buz Reynolds present. Councilor Rick Cuny was absent. Also present were
Town Manager Bill Efting, Assistant Town Manager Larry Brooks, Town Clerk Kris
Nash, Human Resources Director Jacquie Halburnt, Finance Director Scott Wright,
Police Chief Jeff Layman, Town Engineer Norm Wood, Public Works employee Gary
Padilla, Transportation Director Harry Taylor as well as members of the public.
Second Reading of Ordinance No. 00-14, Series of 2000, An Ordinance Amending
Chapter 8.31 of the Avon Municipal Code Relating to Odor Pollution.
Mayor Yoder stated this is a public hearing.
Mr. Jim Collins, general counsel for the Eagle River Water and Sanitation District
approached the Council. Mr. Collins stated they have been trying to work with Avon to
control the odor issues. He felt that good progress has been made. He stated, for the
record, that the Water District would like the Council not to pass this ordinance, but
would like to have an ordinance that does more for the town and for the subject of odor
control.
Mr. Collins referred to a Phase I Report of an Evaluation of the Design and Operation of
Odor Control Systems at the Avon and Edwards Wastewater Treatment Plants. (a copy of
the report in part is attached to these minutes). He stated that the consultant reviewed the
old ordinance and the proposed ordinance and made three points. 1.) The definition of
odor nuisance and verification of odor complaints are considered to be essential elements
of a reasonable odor ordinance that should be maintained as the Town now has some
standards. 2.) Most other similar ordinance, in the consultants opinion, nationwide
require more than three complaints over a longer period of time than did the older
ordinance. The old ordinance pushed the envelope but did provide for. 3.) Eliminating
the criteria as proposed is unreasonable and inconsistent with accepted practices. Finally,
in the judgement of the consultant, amending the ordinance represents a step backwards
in the development of a fair and equitable odor control ordinance for the Town.
Mr. Collins concluded by saying whatever the Council decides tonight, the Water District
will work with the Town to remove the odors from Avon.
Councilor McDevitt stated it is his hope that the Town never has to bring this ordinance
up. He stated that ordinances are not the way to stop the odor pollution. Even if the
Town won every case it really wouldn't help us. He stated it is not the ordinance, it is
getting rid of the odor. That is the key issue. This is simply a means of bringing it to the
public's attention. He stated that, hopefully, we are moving in the right direction and
won't have to worry about odors any longer.
Councilor Peter Buckley stated that he would like to reinforce Councilman McDevitt's
opinion. He stated that this was a campaign issue for him when he got elected. He said
that people came to him and considered the odor a problem, and that they still consider it
an ongoing problem. Mr. Buckley added that the Council does not have any direct
control over the Water District, but through the ordinances they can make it more forcible
for the Town. He stated that they would like to get the odor problem solved permanently
Councilor Brown agreed as well. He stated that he lives in Sunridge Phase I and it is a
serious lifestyle issue when the odor occurs. Something must be done.
Mayor Yoder stated that this ordinance has been done in response to the constituents, not
to try to beat up the District.
There being no further comments, Mayor Yoder closed the public hearing.
Councilor Debbie Buckley motioned approval of Ordinance No. 00-14, Series of 2000 on
second reading. Councilor McDevitt seconded the motion.
Mayor Yoder asked for a roll call.
The motion carried unanimously.
Town Manager Report:
Town Manager Efting stated that there will be no work session next Tuesday.
Consent Agenda:
a.) Approval of the December 12, 2000 Council Meeting Minutes
b.) Resolution No. 01-01, Series of 2001, A Resolution Approving the Final
Plat, A Resubdivision of Lot 22, Block 3, Wildridge, Town of Avon,
Eagle County, Colorado
-- - c.) - Resolution No.-01=-02-Series--of 2001 For a Resolution- Declaring the
Intent of the Town of Avon, Colorado to Issue Multifamily Housing
Revenue Bonds to Provide Financing of a Multifamily Residential Facility
for Low and Middle Income Persons and Families; Prescribing Certain
Terms and Conditions of Such Bonds, and Containing Other Provisions
Relating to the Proposed Issuance of Such Bonds
Regular Council Meeting
January 9, 2001
d.) Resolution No. 01-03, Series of 2001, A Resolution Approving the Final
Plat, A Resubdivision of Lot 62, Block 4, Wildridge, Town of Avon,
Eagle County, Colorado
e.) Intergovernmental Agreement for 800 MHz Wide Area Smartzone
Trunking Radio Services
£) Eaglebend Drive Streetscape Improvements Design Services Agreement
g.) Pentamation Software Mitigation Agreement
h.) ASCAP Licensing Agreement
i.) CASTA and Colorado Transit Coalition Agreement
Mayor Protem Reynolds motioned approval of the Consent Agenda. Councilor Debbie
Buckley seconded the motion. The motion carried unanimously.
There being no further business to come before the Council, Councilor Debbie Buckley
motioned to adjourn the meeting. Councilor B own seconded the motion. The motion
carried unanimously and the meeting adjourn at 5:35 PM.
RESPECTFULLY SUBMITTED:
ash, Town
APPROVED:
Michael Brown
Debbie Buckley
Peter Buckley
Rick Curly
Mac McDevitt
Buz Reynolds
Judy Yoder
Regular Council Meeting
January 9, 2001
PHASE I REPORT
EVALUATION OF THE DESIGN AND OPERATION
OF ODOR CONTROL SYSTEMS
AT THE
AVON AND EDWARDS
WASTEWATER TREATMENT PLANTS
Prepared for:
EAGLE RIVER WATER AND SANITATION DISTRICT
846 Forest Road
Vail, CO 81657
Prepared by:
BOWKER & ASSOCIATES, INC.
CONSULTING ENGINEERS
477 Congress Street, Suite 1004
Portland, ME 04101
December, 2000
eceived Time-Jan, 5.- 5:21P
.
• Allowable exposure levels for workers can be over 10,000 times the concentration that
can be detected by the human nose.
` • Objectionable odors can cause symptoms such as nausea, headaches, itchy eyes, .etc,
However, these symptoms' disappear when the odor is gone.
• Although residual ozone would be expected to be removed in downstream wet scrubbers,
M no data are available on whether or not ozone is present in the exhausts from the chemical
scrubbers.
AVON ODOR CONTROL ORDINAIVCE
• --The -Avon -ordinance existing as of December 15, 2000 is well constructed and contains
most of the elements considered to be important for a good odor regulation. The one
exception is the lack of any provision for the odor generator to appeal the notice of
' violation.
• The ordinance provides for. the Town to notify the potential odor generator of a possible
violation, but no time frame is specified. The District has maintained that it had not been
notified of odor complaints soon enough for them to take appropriate action or to
adequately assess operating conditions at the time of the complaint More recently, the
Town has improved its communications with the District.
' •. The original ordinance prior to its amendment in July, 2000 had an exception for
conducting maintenance or repair of odor control equipment as long as the Town
received prior notification. This was a reasonable provision in the judgment of Bowker
' & Associates.
• The use of an ambient odor concentration for which an exceedence constitutes a violation
is fairly common in odor regulations and in not unreasonable. However, 5 D/T cannot be
' measured with a Scentometer. Further, there is no specification of the number and
frequency of measurements by the inspector to document the ambient odor concentration.
• The complaint violation criteria of three complaints in a six-hour period ' is overly
restrictive when compared to complaint criteria in other ordinances (e.g., 10 validated
complaints in 9 months).
' . The Avon ordinance states that "an odor shall be deemed to interfere with reasonable and
comfortable use and enjoyment of property if it is detectable by a trained observer
(emphasis added) and which meets or exceeds any of the following. limits-.-" Based on
' review of police reports, the trained observer designated by the Town of Avon did not
consistently . verify the. odor complaints or document the odor levels using the
Scentometer that he was trained to use.
' • The current Avon ordinance essentially states that any odor release that results in odor
complaints constitutes a violation punishable by a $1,000 fine or 90 days in jail. In the
- judgment of.Bowker_&-.ssociates,-this is not-reasonable and does not recognize the
realities of operating and maintaining a complex wastewater treatment facility that has
significant public benefit in protecting public health and improving water quality.
• A second amendment of the odor ordinance proposed in December, 2000 removes any
definition of an odor nuisance and eliminates the requirement for verification of odor
complaints by the Town of Avon. These are essential elements of an odor control
ordinance that should be maintained.
v
Received Time Jan, 5. 5:21PM
• definitions
• identification of jurisdiction
• complaint verification
• standards and limits
• description of notice of violation
?. • penalties
•
- remedies,
• al peal process
• exclusions
• limitations
Complaint verification is one of the more important elements of a good odor regulation.
Virtually all regulations reviewed by Bowker & Associates, Inc. included this provision.
,A. goad odor regulation attempts to define a nuisance. In general, the regulations provide some
degree of acceptance of odor. That is, the public is -expected to accept some odor, noise, or air
pollution that is deemed non-harmful to the normal population. and which does not unreasonably
interfere with their enjoyment of life and property. The occurrence of occasional odor does not
necessarily constitute a nuisance.
. 72 Avon Odor Ordinance
The original Avon ordinance is based on two violation criteria:
• ambient odor - 5 dilutions to threshold as measured by Barneby-Cheney Scentometer
• complaints - 3 or more calls within a six-hour period
The use of an odor "concentration" such as 5 dilutions to threshold(DM is not uncommon in
odor regulations. Five dilutions to threshold means that the odor must be diluted five times
before it is no longer detectable. Unfortunately, the Scentometer can only measure ranges of
odor concentration. These ranges are as follows:
Received Time Jan. 5, 5:21PM 28
<2 D/T
2-7 D/T
&A 5 D/T
16-31 D/T
32-170 D/T
1 171-350 D/T
Thus,-the Scentometer cannot measure 5-D/T. Some states that specify use of the Scentom.eter
use 7 D/T as the violation threshold. The Scentometer is regarded by many as an unreliable tool
for measuring odor. It is difficult to use and the results are dependent on the sensitivity of the
user. Most regulations define the number of observations made by the inspector and the time
frame of the observations, e_g. "three samples or observations in one hour period separated by 15
minutes each." The Avon ordinance does not address number of observations.
The complaint criteria in the Avon odor ordinance is "3 or more calls from individuals
representing separate properties within the Town within a six-hour period related to a single odor
description-" A single odor episode apparently constitutes a violation. The ordinance does
indicate that "The Town shall investigate all complaints to verify the source of the odor nuisance
and take appropriate corrective action."
Most complaint criteria specify a certain number of complaints, but over a much longer time
period. For example, the Minnesota drat odor rule states "at least 10 independent complaints...
and the total number of complaints include at least 5 different households (or places of
business)... all of the independent complaints were made within a 90 day period ...at least 5 of
the' independent complaints were confirmed (verified) through an inspection by a representative
or agent..." The Bay Area Management District in California uses the criteria of "10 validated
complaints within a 90-day period to trigger the ordinance." The violation criteria of. 3
complaints in a 6-hour period appears overly restrictive in that it essentially defines a nuisance as
one odor event of unspecified duration.
I Received Time Jan. 5. 5:21PM 29
I the ordinance it contains most of the essential elements In terms of the structure of th previously
I discussed. The original 1997 ordinance had an "exceptions" clause that allowed for some odor
release caused by 1) unanticipated upset conditions or equipment breakdown provided that the
1 Town be verbally notified followed by a written plan to correct it, and 2) start-up, shut-down,
1 cleaning or testing of machinery provided the Town be notified in writing 48 hours in advance
and that the Town approve the repair or maintenance activity in writing. These exceptions were
removed from the ordinance in June, 2000.
The June, 2000 amendment also requires the person responsible for the odors to take immediate
action to correct the problem, verbally notify the Town Manager within 8 hours as to why the
violation occurred, and submit a written statement to the Town within 3 days detailing the reason
for the violation and a plan to ensure that the problem will not recur.
One element present in many regulations but missing in the Avon ordinance is the provision for
appeal by the odor generator. In the Avon ordinance, the decision on whether or not a nuisance
' condition has occurred and the source of that nuisance is left up to the odor inspector designated'
by the Town of Avon. However, the only documentation of odors appears to be in police logs,
and in the cases reviewed by Bowker & Associates, odors were not verified or measured by the
Town's trained odor inspector.
In December, 2000 the Avon Town Council passed the first reading of an amendment to the odor
ordinance that 1) eliminated any definition of what constitutes an odor nuisance (odor
concentration by Scentometer, number of complaints in a specified tune internal), and
2) removed the requirement that odor complaints be verified by the Town of Avon. The
proposed amendment was a direct result of the Town losing a case that it brought against the
Sanitation District because the Court ruled that the Town failed to satisfy certain requirements of
the ordinance. If implemented, this latest amendment will remove two elements that are
considered essential to a good odor control ordinance. In the judgment of Bowker & Associates,
this represents a major step backwards in the development of a fair and equitable odor control
ordinance for the Town of Avon.
I Received Time Jan, 5. 5:21 PM 30
I
Based on review of the Avon ordinance, the available literature on odor regulation, and selected
' examples of other odor ordinances, the following summarizes the conclusions, of Bowker &
Associates:
' the Avon ordinance existing as of December 15, 2000 is well constructed and
contains most of the elements considered to be important for a good odor regulation.
' The one exception is the lack of any provision. for the odor generator to appeal the
notice of violation.
' the ordinance provides for the Town to notify the potential odor generator of a
possible violation, but no time frame is specified. The District had maintained that it
r had not been notified of odor complaints or the presence of odors soon enough for
them to take appropriate action or to adequately assess operating conditions at the
' time of the complaint. More recently, the Town has improved its communication
with the District when odors are detected.
' • the original ordinance had an exception for conducting maintenance or repair of odor
control equipment as long as the Town received prior notification. This was a
reasonable provision in the judgment of Bowker & Associates.
• the use of an ambient odor concentration for which an exceedenee constitutes a
violation is fairly common in odor regulations and in not unreasonable. However, 5
DlT• cannot be -measured with, a Scentorneter. Further, there is no specification of the
number and frequency of measurements by the inspector to document the ambient
' odor concentration.
• the complaint violation criteria of three complaints in a six-hour period is overly
' restrictive when compared to complaint criteria in other ordinances (e.g.,10 validated
complaints in 9 months).
' the Avon ordinance states that "an odor shall be deemed to interfere with reasonable
and comfortable use and enjoyment of property if it is detectable by a trained
observer (emphasis added) and which meets or exceeds any of the following
- - limits..." Based on review of police reports, the-trained-observer designated by the
----- - - -Town-of Avon did not consistently-verify the- odor complaints or document the odor
levels using the Scentometer that he was trained to use.
¦
Received Time Jan, 5• 5:21PM 31
• the current Avon ordinance essentially states that any odor release that results in odor
complaints constitutes a violation punishable by a $I,000 fine or 90 days in jail. In
the judgment of Bowker & Associates, this is not reasonable and does not recognize
M the realities of operating and maintaining a complex wastewater treatment facility that
has significant public benefit in protecting public health and improving water quality.
• A second amendment of the odor ordinance proposed in December, 2000 . that
removes any definition of an odor nuisance and eliminates the requirement for
_' -- _ vcdfcation-of-odor??znplaints_by-the Town o& A)tomi.s-an-inappxQpiiate modification
of the existing ordinance.
• The removal of both the definition of odor nuisance and the requirement to verify
odor complaints eliminates two crucial elements of a good odor control ordinance. In
the judgment of Bowker & Associates, this represents a step backward in the
development of a fair and equitable ordinance_
Received Time Jan, 5, 5:21PM 32
FINANCIAL MATTERS
January 23, 2001
1. Detail - Building Activity Report
2. Detail-Real Estate Transfer Taxes
3. Detail-Sales Tax Update
4. Detail-Accomodations Tax Update
Town of Avon 970-748-4030
P.O.Box 975
Avon, Co. 81620
748-4094 For Inspection Request
Permit Tally Printed:l/12/01
For: November, 2000 Pagel of 1
Permit Purpose: Commercial
Public:
# of Bldgs: # of Units:
Private: 1
# of Bldgs: # of Units:
Permit Purpose: Expand SF Residential
Construction Value: $.00
Permit Charges: $.00
Construction Value: $40,000.00
Permit Charges: $1,269.80
Public: Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 1 Construction Value: $7,850.00
# of Bldgs: 1 # of Units: 1 Permit Charges: $315.85
Permit Purpose: Repair/Remodel Comm/Indust
Public: Bldg. Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 1 Construction Value: $100,000.00
# of Bldgs: 1 # of Units: 2 Permit Charges: - $2,062.94
Permit Purpose: Repair/Remodel SF Residential
Public: Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 1 Construction Value: $50,000.00
# of Bldgs: 1 # of Units: 1 Permit Charges: $1,158.75
Totals:
Public: Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 4 Construction Value: $197,850.00
# of Bldgs:3 # of Units: 4 Permit Charges: $4,807.34
Town of Avon 970-748-4030
P.O.Box 975
Avon, Co. 81620
748-4094 For Inspection Request
Permit Tally Printed:1/12/01
For: December, 2000 Pagel of 1
Permit Purpose:
Public: Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 2 Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Permit Purpose: Commercial
Public: Construction Value: $.00
# of Bldgs: # of Units: Permit Charges: $.00
Private: 2 Construction Value: $69,014.62
# of Bldgs: # of Units: Permit Charges: $1,928.22
Totals:
Public:
# of Bldgs:
Private: 4
# of Bldgs:
Construction Value: $.00
# of Units: Permit Charges: $.00
Construction Value: $69,014.62
# of Units: Permit Charges: $1,928.22
Town of Avon
Real Estate Transfer Tax Transactions
Calendar Year 2000
Purchaser
Name
Property Amount of RETT
Received
$1,445,444.47
Abbott Lot 24 Blk 4 WR 7,125.00
Tarantino The Seasons #420 $1,040.00
Eagle County Title Falcon Pointe Timeshares $25,481.60
P.O.C. Realty Inc Christie Lodge Timeshares 932.80
P.O.C. Realty Inc Christie Lodge Timeshares 1,034.30
Keith Falcon Pointe Timeshares 90.00
Siebert/Ryden Lot 98 Bilk 1 WR 4,020.00
Seigel Nightstar #F1 7,528.00
Oleson Twin Bears Townhomes #B 4,240.00
Krokowski Rockin Horse Ridge #132 9,100.00
Weweeoui Holdings Avon Town Square #207 3,120.00
Land Title Guarantee Falcon Pointe Timeshares 609.90
First American Heritage Canyon Run Garage 900.00
Schwartz Lot 64 Blk 4 WR 13,400.00
Andrews Sunridge #D 3,850.00
Thompson Ridgepoint Condo #163 11,380.00
Helmering Avon Town Square #210 1,840.00
Ferraro Lot 18 Blk 1 BMBC 10,150.00
Huffstetler The Seasons #404 3,500.00
Williams The Seasons #320 4,500.00
P.O.C. Realty Christie Lodge Timeshares 1,410.20
P.O.C. Realty Christie Lodge Timeshares 752.80
1
Town of Avon
Real Estate Transfer Tax Transactions
Calendar Year 2000
Purchaser
Name
Property Amount of RETT
Received
P.O.C. Realty Christie Lodge Timeshares 772.70
Weller Brookside #301 7,450.00
Holguin Benchmark Condo #B20 1,600.00
Monroe Avon Center #501 5,500.00
Coleman Avon Crossing #4103 640.00
Raydon Avon Crossing #4206 853.25
Welge/Gifford Gasshowk Townhomes #4 1,300.00
Galvin Mountain Star Lot 31 22,500.00
Barris Stonebriar Townhomes #4 2,800.00
Land Title Guarantee Falcon Pointe Timeshares 260.00
Adams Avon Lake Villas #19 4,700.00
Land Title Guarantee Falcon Pointe Timeshares 226.90
Wester Lot 2 Blk 1 WR 7,790.00
Pinnell Balas Townhouse Condo #F $1,120.00
Kokes and Company Partnership Square Commercial Condo #202 $3,400.00
Total through November $1,622,361.92
2
Town of Avon
Real Estate Transfer Tax Transactions
Calendar Year 2000
Purchaser Amount of RETT
Name Property Received
$1,622,361.92
LaVenture Metcalf Commercial Park #205 8,146.80
Taylor Trust Rockin Horse Ridge #A3 $8,940.00
Bradway Family Limited Partn ership Benchmark Condo #C16 $1,820.00
Brausch Lot 37E Blk 1 4,320.00
Stephens Avon Town Square #222 2,140.00
Vinsand Lot 37 Blk 4 1/2 Interest 3,780.00
Rice Falcon Pointe #108 120.00
Three R Ventures LLC Lot 69 Mountain Star 25,000.00
Weybrauch Greenbrier #C22 1,599.58
Daniel Avon Lake Villas #P4 4,200.00
Thul Holdings LLC Centennial Center Condo #C101 19,800.00
Cooper Lot 4 Blk 5 WR 5,530.00
Rewold Beaver Bench #1322 130.00
Jeppson Lot 56 Blk 3 WR 9,800.00
Joly Avon Crossing #4308 4,380.00
Litt Gasshawk #8 1,400.00
Sandberg Eagle Ridge Lot 79 Blk 1 WR 2,840.00
Triebnig Lot 52 Blk 2 WR 10,600.00
Brooke/Nelson Buck Creek #102 1,980.00
Davis Lot 12 Blk 2 WR 3,740.00
Carroll Lot 41 Blk 1 WR 7,050.00
Total through December $1,749,678.30
1
TOWN OF AVON
SALES TAX BY MONTH
1996 95'-96'% 1997 96'-97'% 1998 97'-98'% 1999
Change Change Change
January 332,198.39 6.07% 377,597.32 13.67% 379,424.41 0.48% 384,939.69
February 327,012.10 10.25% 362,516.58 10.86% 378,112.00 4.30% 397,323.16
March 407,980.62 9.10% 468,675.51 14.88% 460,191.56 -1.81% 474,933.06
April 252,927.51 11.46% 265,356.48 4.91% 310,197.72 16.90% 302,864.19
May 222,069.74 10.58% 241,012.56 8.53% 249,079.90 3.35% 265,405.35
June 298,113.41 11.31% 313,116.79 5.03% 337,562.03 7.81% 395,755.68
July 335,119.67 17.15% 353,101.99 5.37% 370,086.73 4.81% 395,954.38
August 324,451.49 13.80% 338,134.48 4.22% 363,110.96 7.39% 366,648.94
September 302,523.86 12.68% 319,410.91 5.58% 333,508.38 4.41% 364,432.54
October 266,050.77 19.56% 263,685.99 _-0.89% 305,035.11 15.68% 295,541.62
November 285,178.12 9.28% 339,200.41 18.94%- 335,073.59 -1.22% 320,335.28
December 509,177.82 14.39% 533,904.08 4.86% 550,077.22 3.03% 564,813.35
YTD Total 3,862,803.50 12.04% 4,175,713.10 8.10% 4,371,459.61 4.69% 4,528,947.24
981-991% 2000 991-001% Total5-Yr
Change Change % Increase
1.45% 359,721.88 -6.55% 14.86%
5.08% 397,291.59 -0.01% 33.94%
3.20% 457,053.94 -3.76% 22.22%
-2.36% 337,087.43 11.30% 48.55%
6.55% 286,191.36 7.83% 42.52%
17.24% 398,869.89 0.79% 48.93%
6.99% 415,978.51 5.06% 45.42%
0.97% 400,447.52 9.22% 40.46%
9.27% 375,400.90 3.01% 39.83%
-3.11% 320,796.00 8.55% 44.16%
4.40% 329,170.99 2.76% 26.14%
2.68% - -100.00% -100.00%
3.60% 4,078,010.01 2.87% 18.29%
YTD Through November Collections 1996-2000
4,500,000.00 - ? ' -'-- -- T?-- - -
4,000,000.00 ? ,/ .. , ;•' s? ,r
3,500,000.00 ?
3,000,000.00
2,500,000.00 ? 5
?
2,000,000.00 - ? - ---- aj
f?'
1,500,000.00 r
1,000,000.00
500,000.00 ors' ;
1996 1997 1998 1999 2000
Year
TOWN OF AVON
ACCOMMODATIONS TAX BY MONTH
1996 95'-96'% 1997 96'-97% 1998 97'-98% 1999 981-99% 2000 991-001% Total 5-Yr
Change Change Change Change Change % Increase
January 37,787.01 -6.65% 39,958.27 5.75% 39,357.21 -1.50% 41,102.99 4.44% 24,753.92 -39.78% -38.85
February 42,386.61 10.86% 45,305.47 6.89% 42,769.24 -5.60% 36,985.03 -13.52% 32,158.10 -13.05% -15.89%
March 55,882.23 5.26% 63,054.38 12.83% 51,035.34 -19.06% 42,018.24 -17.67% 42,385.82 0.87% -20.16%
April 11,890.97 8.18% 11,850.40 -0.34% 13,556.94 14.40% 11,609.15 -14.37% 10,166.11 -12.43% -7.51%
May 6,703.77 23.14% 8,759.53 30.67% 5,762.93 -34.21% 6,117.50 6.15% 5,712.27 -6.62% 4.93%
June 12,633.34 -1.61% 13,982.39 10.68% 12,609.03 -9.82% 14,958.28 18.63% 15,610.67 4.36% 21.58%
July 19,949.49 18.21% 21,298.64 6.76% 20,845.64 -2.13% 21,120.57 1.32% 21,769.19 3.07% 28.99%
August 20,391.40 32.67% 22,365.12 9.68% 22,875.39 2.28% 16,452.89 -28.08% 17,093.13 3.89% 11.21%
September 13,093.39 -2.35% 11,173.41 -14.66% 11,262.18 0.79% 10,300.61 -8.54% 12,810.60 24.37% -4.46%
October 10,832.98 13.95% 8,819.05 -18.59% 8,315.76 -5.71% 7,258.18 -12.72% 9,139.51 25.92% -3.86%
November 12,824.84 -12.55% 12,112.05 -5.56% 10,813.22 -10.72% 7,889.97 -27.03% 10,233.40 29.70% -30.22%
December 33,623.20 6.25% 40,000.05 18.97% 32,602.89 -18.49% 25,606.29 -21.46% - -100.00% -100.00%
YTD Total 277,999.23 5.88% 298,678.76 7.44% 271,805.77 -9.00% 241,419.70 -11.18% 201,832.72 -6.48% -23.13%
YTD Through November Collections 1996-2000
300
000.00
, -- --- -- -
250,000.00
.cy.
200,000.00
r.
150,000.00
100,000.00 '. '
50,000.00
''F .. ?.:.4.r..2a:.?..d...k?Y.r;'i'..ka.,..?._...._ .. _,, v....-se_.._..::...?:. y,...?_:.c.7.•'IG::TShYY?I?:?tJ?u.. xrt.-:...:. ? r.??,... ... :, ..?
1996 1997 1998 1999 2000
Year
Monthly Collections for November 1996-2000
14,000.00
12,000.00
10,000.00
8,000.00
6,000.00
4,000.00
2,000.00
1996 1997 1998 1999 2000
Memo
To: The Honorable Mayor and Town Council
From: Harry N. Taylor, Director of Transportation
Thru: Bill Efting, Town Manager
Date: January 18, 2001
Re: Service Agreement with the Eagle River Fire Protection District
Summary:
The Eagle River Fire Protection District has requested the Town of Avon to continue
performing Repair and Maintenance services on all Eagle River Fire Protection District
vehicles. The Town of Avon Fleet Maintenance Division at the Swift Gulch Maintenance
Facility will perform this work. The repair "shop rate" will be $80.00 per hour for the
term of the Service Agreement.
Discussion:
This agreement is a continuation of the repair and maintenance services provided to the
Avon Fire Department since the early nineties. Following the transition from Avon Fire
Department to the Eagle River Fire Protection District, an IGA for the repair and
maintenance services became necessary.
Recommendation:
The recommendation is to approve the request by the Eagle River Fire Protection District
to provide Repair and Maintenance services under a Service Agreement for a one-year
period.
Town Manager Comments:
encl.
January 4, 2001
MEMORANDUM
To: Harry Taylor, Transportation Director
Town of Avon
Fm: Charles Moore, Fire Chief
Eagle River Fire Protection District
Re: Fleet Maintenance Agreement
Harry, the Board of Directors has approved the fleet maintenance
agreement. I am transmitting 2-signed originals.
Please return one original once the Town has approved them. Thank
you.
SERVICE AGREEMENT
This agreement is made and entered into this day of , 2000 by and between
Eagle River Fire Protection District, whose address is P.O. Box 7980, Avon, Colorado, 81620
(hereafter know as "ERFPD") and the Town of Avon whose address is P.O. Box 1726, 500 Swift
Gulch Road, Avon, Colorado, 81620 (hereafter designated as "Contractor").
RECITAL
In consideration of the obligation of ERFPD to pay the Contractor as herein provided and in
consideration of the other terms and conditions hereof, the parties agree as follows:
Contractor Services: Contractor will, during the term of this Agreement, provide:
(a) Routine maintenance and preventive maintenance ("Routine Maintenance") of
the Eagle River Fire Protection District vehicles and equipment which are
operated by ERFPD. Service will be performed on approximately 17 vehicles or
other vehicles, although the number of vehicles serviced may be increased or
decreased in ERFPD's sole discretion. Routine Maintenance will be performed
at lease every 3,000 miles or 250 hours of use. Routine Maintenance shall
consist of those services outlined in Exhibit A attached hereto.
(b) "Repair and Replacement" work as requested by ERFPD. No payment for any
repair or replacement work shall be due unless ERFPD has approved of such
charges. Services may be commenced with verbal approval by ERFPD or a
written estimate submitted by Contractor. Repair and Replacement work
consists of the following types of work, including without limitation, transmissions
repairs, engine repairs, rear end repairs and any work or repairs exceeding
$2,000.00. ERFPD acknowledges that subcontractors will perform certain repair
work. Contractor shall be responsible for assuring that all such subcontracted
work will be performed promptly and in accordance with the terms and conditions
of this Agreement.
(c) Contractor's Fueling Facilities may be used by ERFPD. The cost of Unleaded
Gasoline and Diesel Fuel will be charged at the Contractor's cost plus ten cents
per gallon.
(collectively the "Services")
2. Facilities: Contractor represents that it's facilities are in good repair and
adequately equipped and that it has a sufficient staff to perform all work in a
timely manner. All Routine Maintenance shall be completed within 24 hours of
any vehicle being brought to Contractor's facility.
3. Compensation: In consideration of Contractor's services during the term of this
Agreement, ERFPD will pay Contractor $80.00 per hour. for Routine Maintenance
and Repair and Replacement work. Materials and sublet work shall be charged
at cost plus ten percent. Invoice shall be issued by the 10th of each month for
services performed the previous month. Payment shall be remitted within ten
(10) days of receipt of invoice.
4. Terms and Termination: This Agreement will be effective as of January 1, 2001
and will terminate on December 31, 2001 unless Contractor fails to substantially
perform the duties and obligations in accordance herewith. In such an event,
ERFPD may terminate this Agreement upon seven (7) days written notice to the
Contractor, unless Contractor cures the breach within the Seven (7) day remedy
period. Either party may terminate this Agreement without cause upon 30 Days
written notice.
5. Relationships and Taxes: The relationship between the parties is that of
independent contracting parties, and nothing herein shall be deemed or
construed by the parties hereto or by any third party as creating a relationship of
principal and agent or partnership, or of a joint venture between the parties.
Contractor shall be solely responsible for any tax, withholding or contribution
levied by the Federal Social Security Act. Contractor is not entitled to
unemployment compensation or other employment related benefits, which are
otherwise made available by ERFPD to its employees. Contractor shall provide
ERFPD an original of its Form W-9 (Request for Taxpayer Identification Number
of Certification).
6. Warranty: Contractor shall perform all Services in a prompt, efficient and
workmanlike manner. Contractor shall promptly correct any defective work.
_7. -Assignment: Contractor's duties hereunder requires particular expertise and
skills, and may not be assigned to any third party without the expressed written
consent of ERFPD, and any attempt to do so shall render this Agreement null
and void and no effect as respects the assignee (s) and shall constitute an event
of default by Contractor.
8. Waiver: Failure to insist upon strict compliance with any terms, covenants, and/
or conditions hereof shall not be deemed a waiver of such term, covenant, or
condition, nor shall any waiver or relinquishment of any right or power hereunder
at any time or more times be deemed a waiver or relinquishment of such right or
power at any other time or times.
9. Benefit: The terms, provisions, and covenants contained in this Agreement shall
apply to, inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors in interest, and legal representatives except as
otherwise herein expressly provided.
10. Situs and Severability: The laws of the State of Colorado shall govern the
interpretation, validity, performance and enforcement of this Agreement. If any
provision of this Agreement shall be held to be invalid or unenforceable, the
validity and enforceability of the remaining provisions of this Agreement shall not
be affected thereby. -
11. Modification: This Agreement contains the entire agreement between the
parties, and no agreement shall be effective to change, modify, or terminate in
whole or in part unless such agreement is in writing and duly signed by the party
against whom enforcement of such change, modification, or. termination is
sought.
EXECUTED this day of , 2000.
-EAGL ER- FIRE-P-ROTECT-I DISTRICT
By:
B'
EXECUTED this day of , 2000.
TOWN OF AVON
By:
By:
EXHIBIT A
"A" PM 3,000 miles or
Preventive Maintenance 250 hours
Inspection
$80.00 hr.
Plus parts &
sublet
"Annual" every 12months $80.00 hr.
Preventive Maintenance Plus parts &
Inspection sublet
NOTE: Included, as a part of Exhibit A is the vehicle listing applicable to this agreement as of
January 1, 2001.
Memo
To: Honorable Mayor and Town Council
Thru: Bill Efting, Town Manager
From: Norm Wood, Town Engineer -
Date: January 2, 2001
Re: Mountain Vista Resort Subdivision
Holy Cross Energy - Underground Right-of-Way Easement
Summary: Holy Cross Energy has submitted a request for approval of
the attached Underground Right-of-Way Easement on a portion of Tract G, Benchmark at
Beaver Creek, Town of Avon, Eagle County, Colorado. The requested easement is
located adjacent to the westerly line of Lot C, Avon Center and in the current location of
Benchmark Road. The easement will be used to accommodate the electrical service line
and transformers for the Mountain Vista Resort Subdivision Development. This easement
has been requested because the location is on Town owned Tract G rather than in a
dedicated public street right-of-way.
A corresponding easement is proposed to be granted to Mountain Vista Resort Subdivision
to accommodate the installation and maintenance of design features required to mitigate
the encroachment of their electrical service and transformers on Tract G.
Approval of this easement is recommended, contingent upon concurrent approval and
recording of a corresponding, satisfactory easement agreement with the owners of
Mountain Vista Resort Subdivision to accommodate installation and maintenance of design
features required to mitigate the encroachment of electrical service and transformers on
Tract G.
Financial Implications: None
\\PW\SHARED\Engneamg\Sub&vision\Ekndumrk At BC\Ld C, Avon C®ta\Holy Cross Esnirt Mem1.Doc
Recommendations: Approve attached Holy Cross Energy, Underground
Right-of-Way Easement on a portion of Tract G, Block 2, Benchmark at Beaver Creek,
Amendment No. 4, Town of Avon, Eagle County, Colorado, contingent upon approval of
a corresponding easement agreement with the owners of Mountain Vista Resort
Subdivision to accommodate the installation and maintenance of design features required to
mitigate the encroachment of electrical service-and transformers on Tract G.
Town Manager Comments:
?X`
\TWVSHARED\Engineemg\Subdivision\Bmchmark At BCUA C, Avon Caita\Holy Cross Esmnt Meml.Doc 2
HOLY CROSS ENERGY
UNDERGROUND RIGHT-OF-WAY EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
TOWN OF AVON, a municipal corporation
(hereinafter called "Grantor"), for a good and valuable consideration, the receipt whereof is hereby acknowledged, does
hereby grant unto Holy Cross Energy, a Colorado corporation whose post office address is P. O. Drawer 2150,
Glenwood Springs, Colorado (hereinafter called "Grantee") and to its successors and assigns, the right of ingress and
egress across lands of Grantor, situate in the County of Eagle, State of Colorado, described as follows:
A parcel of land located in Section 12, Township 5 South, Range 82 West of the 61 Principal Meridian referred
to as Tract "G", Benchmark at Beaver Creek Subdivision in the Warranty Deed in Book 302 at Page 324 and as
more fully described on the Plat in Book 274 at Page 701, both recorded In the Eagle County Courthouse,
Eagle, Colorado.
And, to construct, reconstruct, repair, change, enlarge, re-phase, operate, and maintain an underground electric
transmission or distribution line, or both, with the underground vaults, conduit, fixtures and equipment used or
useable in connection therewith, together with associated equipment required above ground, within the above
mentioned lands, upon an easement described as follows:
A portion of Tract G, Block 2, Benchmark at Beaver Creek, Amendment No.4, Town of Avon, Eagle County,
Colorado, as depicted on the attached EXHIBIT *1 and more specifically described as follows:
Beginning at the Northeast corner of Tract G, Block 2, Benchmark at Beaver Creek, Amendment No. 4,
Thence 502°30'12"E along the East Line of said Tract G a distance of 186.00 feet,
Thence departing said East Line of Tract G, S87°29'48"W a distance of 2.50 feet,
Thence N02°30' 12"W a distance of 184.66 feet,
Thence N59°20'02"E a distance of 2.84 feet to the True Point of Beginning. Containing 463 square feet, more
or less.
Together with the right to remove any and all trees, brush, vegetation and obstructions within said easement and the
right to pile spoils outside said easement during construction and maintenance, when such is reasonably necessary for
the implementation and use of the rights hereinabove granted. In areas where vegetation is disturbed by the above
described use of the easement, the ground surface shall be seeded using a standard native mix by Grantee. Grantor
agrees that landscaping or other surface improvements added on said easement after the date of execution hereof will
be minimized and that Grantee will not be responsible for damage to said additional landscaping or surface
improvements caused by exercise of Its rights granted by this easement
Grantor agrees that all facilities Installed by Grantee on the above described lands, shall remain the property of
Grantee, and shall be removable at the option of Grantee.
Grantor covenants that it is the owner of the above described lands and that the said lands are free and clear of
encumbrances and liens of whatsoever character, except those held by the following:
TO HAVE AND TO HOLD, said right-of-way and easement, together with all and singular, the rights and privileges
appertaining thereto, unto Grantee, Its successors and assigns, forever.
IN WITNESS WHEREOF, Grantor has caused these presents to be duly executed on this may of
20
TOWN OF AVON, a municipal corporation
Judy Yoder, Mayor
STATE OF 1
) ss.
COUNTY OF 1
The foregoing instrument was acknowledged before me this day of
20 _ by JUDY YODER as Mayor of the Town of Avon, a municipal corporation.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
W/0*00-17132:50-67:AVON VISTA HIGHLANDS 30 UGA 2-13-00
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EXHIBIT
1
Memo
To: Honorable Mayor and Town Council
Thru: Bill Efting, Town Manager
Fro m:--- - --Norm wwood, TownEngineer Date: January 18, 2001
Re: Mountain Vista Resort Subdivision
Landscape Mitigation Easement for Electrical Service
summary: Points of Colorado, Inc., has requested an easement on Tract
G to install and maintain additional landscapelstreetscape features to help minimize the
visual impacts of the surface mounted transformers installed by Holy Cross Energy. The
attached Encroachment Easement is located on a portion of Tract G, Benchmark at Beaver
Creek, Town of Avon, Eagle County, Colorado, adjacent to the westerly line of Lot C, __
Avon Center and in the current location of Benchmark Road. The easement is 2.5 feet wide
and approximately 185 feet long. The easement will be used to install a low decorative wall
and landscaping adjacent to the Benchmark Road sidewalk to help mitigate visual impacts
of the electrical service and accommodate future maintenance activities associated with the
installation. This easement has been requested because of the location of the electrical
service lines and facilities.
A corresponding easement is proposed to be granted to Holy Cross Energy to allow
encroachment on Tract G to accommodate the installation and maintenance of the
electrical service and transformers for the Mountain Vista Resort Subdivision
Development.
Approval of this easement is recommended contingent upon concurrent approval and
recording of a corresponding easement to Holy Cross Energy to allow the encroachment of
electrical service and transformers on Tract G.
Financial Implications: None
11PW\SHARED\Engin=mg\Subdivision\Bcndunark At BOLot C, Avon CmWeMtn Vista Emint Manl.Doc
Recommendations: Approve attached Points of Colorado, Inc.,
Encroachment Easement on a portion of Tract G, Block 2, Benchmark at Beaver Creek,
Amendment No. 4, Town of Avon, Eagle County, Colorado, contingent upon approval of
a corresponding easement to Holy Cross Energy to accommodatethe encroachment of
electrical service and transformers on Tract G.
Town Manager Comments:
r
F
\\PW\SHARED\Engineering\Subdivision\Bendunadc At BOLA C, Avon Ca?ter%ft VtAa Esowt Meml.Doc 2
POINTS OF COLORADO, INC.
ENCROACHMENT EASEMENT
KNOW ALL MEN BY THESE PRESENTS, that the undersigned, TOWN OF AVON,
a municipal corporation (hereinafter called "Grantor"), for a good and valuable
consideration, the receipt whereof is hereby acknowledged, does hereby grant unto Points
of Colorado, Inc., a Colorado Corporation whose address is 101 University Boulevard,
Suite 405, Denver, Colorado (hereinafter called "Grantee") and to its successors and
assigns, the right of ingress and egress across lands of Grantor, situated in the County of
Eagle, State of Colorado, described as follows:
A parcel of land located in Section 12, Township 5 South, Range 82 West of the
6fl' Principal Meridian referred to as Tract "G", Benchmark at Beaver Creek,
Subdivision in the Warranty Deed in Book 302 at Page 324 and as more fully
described on the Plat in Book 274 at Page 701, both recorded in the Eagle County
Courthouse, Eagle, Colorado.
And to construct, reconstruct, repair and maintain landscape and streetscape features in
general conformance to those depicted on attached Exhibit #2, within the above
mentioned lands, upon a non-exclusive easement described as follows:
A portion of Tract G, Block 2, Benchmark at Beaver Creek, Amendment No. 4,
Town of Avon, Eagle County, Colorado, as depicted on the attached EXHIBIT #1
and more specifically described as follows:
Beginning at the Northeast corner of Tract G, Block 2, Benchmark at Beaver
Creek, Amendment No. 4, Thence S02°30'12"E along the East Line of said Tract
G a distance of 186.00 feet, Thence departing said East Line of Tract G,
S87°29'48"W a distance of 2.50 feet, Thence N02°30' 12"W a distance of 184.66
feet, Thence, N59°20'02"E a distance of 2.84 feet to the True Point of Beginning.
Containing 463 square feet, more or less.
Together with the right of remove any and all trees, brush, vegetation and obstructions
within said easement and the right to pile spoils outside said easement during
construction and maintenance, when such is reasonably necessary for the implementation
and use of the rights hereinabove granted. In areas disturbed by the above described use
of the easement, the disturbed area shall be restored to a condition equivalent to that
existing prior to the disturbance by Grantee, unless otherwise approved in writing by
Grantor.
1\P WtSHARED\Engineermg\SubdivisionlBauhmark At BOLA C, Avon CenterTneroachmal Esn¢.Doc i of 3
Grantee agrees that it will be solely responsible for landscape maintenance and upkeep of
said easement. Grantee indemnifies and holds harmless Grantor, its agents and
employees from and against claims, damages, losses and expenses, including but not
limited to attorney's fees, arising out of or resulting from performance of any work by
Grantee, its agents, or from damage caused by utility equipment installed and maintained
by Grantee or Holy Cross Energy within said easement.
Grantor covenants that it is the owner of the above described lands and that the said lands
are free and clear of encumbrances and liens of whatsoever character, except those held
by the following:
TO HAVE AND TO HOLD, said encroachment easement, together with all and singular,
the rights and privileges appertaining thereto, unto Grantee, it's successors and assigns,
forever.
Grantor:
TOWN OF AVON, a municipal corporation
Judy Yoder, Mayor
STATE OF
COUNTY OF
The foregoing instrument was acknowledged before me this day of ,
2001 by JUDY YODER as Mayor of the Town of Avon, a municipal corporation.
WITNESS my hand and official seal.
My commission expires:
Notary Public
Address:
\\PW\SHARED\Fn&ecring\Subdivision\Bendmark At SC\Lot C, Avon Cmtcr Encmchment Esmt.Doc 2 of 3
Grantee:
POINTS OF COLORADO, INC. a Colorado
corporation
JAMES A. MCKIGHT, Senior Vice-President
STATE OF
COUNTY OF )
The foregoing instrument was acknowledged before me this day of ,
2001 by JAMES A. MCKNIGHT, Senior Vice-President of Points of Colorado, Inc. a
Colorado corporation.
WITNESS my hand and official seal.
My commission expires:
Address:
Notary Public
\\PW\SHARED\Engineering\Subdivision\Bendmnrk At BC\Lot C, Avon CenterTneroadimentanif-Doc 3 of 3
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Burt Levin
From: Burt Levin
'?nt: Thursday, January 18, 2001 11:21 AM
o: Bill Efting; Meryl Jacobs; Jeff Layman
Cc: Council - Everyone
Subject: Loitering in the rec center
Loitering in the rec center has become a problem. Meryl wants to post a sign prohibiting loitering.
This can be done.
In order for the police to be authorized to enforce the ban on loitering § 9.04.130 of the Code must be
satisfied. That section allows the town manager to issue orders limiting activities or conduct within
public buildings, including-an -order -prohibiting-loiteri-ng-at-the-rec-center, which order shall "be
effective only upon resolution of the town council." Furthermore, no conviction may be obtained for a
violation of § 9.04.130 "unless notice of such limitations or prohibitions is prominently posted at all
public entrances to such building...."
Therefore, I have prepared the attached order of the town manager and resolution of the town
council to prohibit loitering in the rec center. Upon approval of the resolution a "no loitering" sign will
be posted on the door of the rec center, and the police will then have authority to enforce the ban.
The police and the rec staff will note that "No conviction may be obtained under this section [§
9.04.130] unless such notice is actually first given by the officer or agency, including any agent
thereof, or by any law enforcement officer having jurisdiction or authority to enforce this section." I
take that to mean that any person loitering in the rec center must be advised, by a rec staff member
-)r a police officer, to stop loitering or leave the building, before the police are authorized to charge
the person with a violation of § 9.04.130.
(The charge in such a case should be "§ 9.04.130 Unlawful conduct on public property.")
-µ
loitering order.doc loiterig res.doc
The resolution will appear on the council's February 13th agenda.
RESOLUTION NO. 05
SERIES OF 2001
A RESOLUTION APPROVING AN ORDER OF THE TOWN MANAGER
WHEREAS § 9.04.130 of the Avon Code provides that orders of the town manager in
the exercise of his authority to control, manage, and supervise town owned buildings are
effective only upon resolution of the town council, and
WHEREAS the town manager has issued an order prohibiting loitering within the
Avon Recreation Center, 0325 Benchmark Road, Avon, Colorado.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. The town council hereby approves the attached January , 2001, order of
the town manager prohibiting loitering within the Avon Recreation Center.
ADOPTED this - day of 92001.
TOWN OF AVON, COLORADO
Judy Yoder, Mayor
ATTEST:
Kris Nash, Town Clerk
APPROVED AS TO FORM:
Burt Levin, Town Attorney
ORDER
Pursuant to my authority under § 9.04.130 of the Avon Code, and in the interest of
prohibiting conduct within the Avon Recreation Center, 0325 Benchmark Road,
Avon, Colorado, which may be reasonably expected to substantially interfere with
the use and enjoyment of said Recreation Center, or which may constitute a
general nuisance, I HEREBY ORDER, this ja: 'day of January, 2001, that loitering
in said Recreation Center is prohibited.
X/Z/
BILL EF G
AVON TOWN MANAGER
RESOLUTION NO. 04
SERIES OF 2001
A RESOLUTION AUTHORIZING THE FILING OF A LAWSUIT AGAINST BARBARA
ANDREWS EVENTS, INC.
WHEREAS, the Town Council desires a lawsuit to be filed in the name of the Town
of Avon against Barbara Andrews Events, Inc., to recover $20,000 wrongfully withheld from
the Town.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE
TOWN OF AVON, COLORADO:
Section 1. The Town Council hereby authorizes the filing of a lawsuit against
Barbara Andrews Events, Inc.
ADOPTED this - day of , 2001.
TOWN OF AVON, COLORADO
Judy Yoder, Mayor
ATTEST:
Kris Nash, Town Clerk