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TC Ord. No. 1982-28T - 1 0 i AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENTS BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. TOWN OF AVON ORDINANCE No. -1',,1332-23 SERIES OF 1982 Those certain Equipment Lease Agreements, together with their Exhibits A, B, and C, copies of which agreements are attached hereto as Addenda I, II and III, and the terms of each are hereby approved, and the acquisition of the municipal properties described therein are hereby authorized. Section 2. The Mayor and Town Clerk are hereby authorized and directed to execute each of said Equipment Lease Agreements. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, THIS 23rd day of ?1o4,iei ber , 1982 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 21st day of Dece:nbe-,. , 1982 at 12:00 noonin the Municipal Building of the Town of Avon, Colorado. Allan R. Nottingham ayor INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED THIS 21st- DAY OF Dece°,ber , 1982. ""V~ TE Allan R. N ttingh , mayor Patricia J. ITclyle, Town /Clerk TOWN OF AVON ORDINANCE No. #82-27 SERIES OF 1982 AN ORDINANCE RELATING TO REVENUE AND AMEND- ING THE MUNICIPAL CODE OF THE TOWN OF AVON TO ESTABLISH A SALES TAX RATE OF 4%, TO PROVIDE PROCEDURES FOR SALES TAX COLLECTION AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: Section 1. Amendment. Chapter 3.08 of Title 3 of the Municipal Code of the Town of Avon is repealed and re- enacted to provide as follows: 3.08.010 Definitions. When used in this chapter, the following words and phrases shall have the following meanings unless from the context it clearly appears that different meaning is indicated: (a) "Director of Finance" or "Director" means the person duly appointed to that office by the Town Manager. The term shall include any designee of the.Director. (b) ",Sale" or "Sale and Purchase" means a sale or exchange of any type, including a sale for cash, an install- ment or credit sale, an exchange and any other transaction, whereby the title or possession of tangible personal proper- ty, as that term is herein defined, is,assigned or transfer- red, conditionally or otherwise, for a consideration of any nature. (c) "Retail Sale" means and includes every sale, as herein defined, made within the boundaries of the Town, except a sale to a purchaser, other than to the consumer or user of the property sold, who intends to re-sell or to lease the same to the user or consumer. sale. (d) "Retailer" means any person making a retail (e) "Taxpayer" means either the person obligated to pay the tax levied by this Chapter, or the person ob- ligated to collect and account for the same to the Director of Finance. (f) "Religious, charitable or eleemosynary institution" means any institution which is a charitable institution exempt from income taxation under the Internal Revenue Act of the United States. (g) "Tax" means either the amount required to be paid by a taxpayer upon the sale, purchase or use of an item of tangible personal property or the aggregate amount of monies collected by a retailer upon which such retailer is obligated to account to the Director of Finance. j I (h) "Tangible personal -property" means corporeal personal property of all types. The term shall not, however, include newspapers, as defined by Section 24-70-102, C.R.S. 1973. (i) "Purchase price" means the price to the consumer, exclusive of any direct tax imposed by the federal government, by the State of Colorado,. or by this chapter. In the case of all retail sales involving the exchange of property, the purchase price of the property received in the exchange shall-be'the total value of:'any property exchanged therefor, which is'to be held for resale, or for lease, by the other party. Cj) "Gross taxable sales" means the total amount received in money, credits, property, or other considera- tion, valued in money for the total>sales at retail made by the retailer within the Town during any reporting period. 3.08.020 Taxable Items. There shall be collected and paid as a tax the amounts stated in Subsection 3.08.030 upon the following: (a) On the purchase price paid or charged upon all retail sales and purchases of tangible personal property within the boundaries of the Town of Avon. (b) 'Upon the amount paid :fors, all meals, including cover charges, if any, furnished int-any restaurant, eating house, hotel drug store, club, resort, or "such place at which meals or food are sold to the public. 3.08.030 Sales Tax Levy. (a) There is hereby imposed upon all sales of all items specified in Section 3.08.020 within the boundaries of the Town of Avon a tax equal to four per cent of-gross receipts derived from sales of tangible personal property and services pursuant to,this chapter. (b) In addition to the tax levied by subsection (a) hereof, there is also hereby. levied a tax, based upon rental fee, price or other consideration paid or received therefor, upon the rental or lease of any room, rooms or mobile homes for lodging purposes in any hotel, motel, lodge, resort, club, rooming house, apartment building or other establishment, making such rooms available to the public, where the period of lodging for which such rental fee, price of other consideration is paid or received shall be less than thirty (30) days. The tax hereby levied shall be based upon the same schedule as is set forth in Sub- section (a) hereof and the person, partnership, corporation or other entity making such rooms,available-shall, for all purposes of'this chapter, be deemed to-be-a "retailer" as defined in Section 3.08.010. (c) The retailer shall add'the tax-imposed hereto to the sale or charge of the item sold, showing such tax a separate and distinct item, shall constitute-a part of such debt from the purchaser to the shall be recoverable at law in debts. and,a-when added, such tax price or chargge, shall be retailer until paid, and the same manner as other as a 3.08.040 Exem t Items. The-sale of the following classes of tang ble~personal property are exempt from the tax imposed by Section 3.08.030. 2 - x~ ~J j I (a) Motor vehicles, trailers, and semi-trailers, registered outside of the Town of Avon. (b) Sales of tangible personal property where both the following conditions exist: (1) The sales are to parties who are residents of, or doing business in, the State of Colorado but outside the Town of Avon; and (2) the articles purchased are to be delivered to the purchaser outside the Town by common carrier or by the con- veyance of the seller or by mail. (c) Sale of fuel used for the operation of internal combustion engines. (d) Sales of medicine, medical supplies, orthope- dic braces and appliances, dental appliances, hearing aids, crutches, wheel chairs, eye glasses, or other mechanical contrivances when purchased with a licensed practitioner's written prescription. (e) Sales of goods manufactured within the Town and sold directly by the manufacturer to a common carrier operating in interstate commerce as the ultimate consumer thereof. (f) Sales of electrical energy, gas or telephone, telegraph and cable television services and the sale or furnishing of steam or other heat. 3.08.050 Exempt Taxpayers. Sales to the follow- ing classes of taxpayers shall be exempt from the tax imposed by this Chapter: (a) Sales to the United States Government; to the State of Colorado, its departments or institutions, and to the political subdivisions thereof,-in their governmental capacity only; in all sales to the Town; providing, however, that. no commercial, industrial, or other banking institution, organized or chartered by the United States Government, any agency or department thereof, or by the State of Colorado, shall be considered a governmental institution for the purpose of this exemption. (b) Sales to religious, charitable, and eleemosynary institutions, in the conduct of their regular religious, charitable, and eleemosynary functions and activities. (c) Nothing herein contained shall be deemed to exempt from the tax levied by this chapter sales of building material or supplies to be used by a contractor for the construction of an improvement for any of the institutions or agencies enumerated in Subsections (a) or (b) above. 3.08.060 Burden of Providing Exemptions Disputes. The burden of proof that any retailer is exempt from'collecting'a,.tax upon any goods sold and paying same to the Director of Finance, or from making return for the same, shall be on the retailer under such reasonable requirements of proof as the Director may prescribe. Should a dispute arise between any purchaser and seller as to whether or not any retail sale is exempt from taxation hereunder, neverthe- less, the seller shall collect and the purchaser shall pay such tax; and the seller shall thereupon issue to the purchaser a receipt, or certificate, on forms prescribed by - 3 - the Director, showing the names of the seller and purchaser, the items purchased, the date, price, amount of tax paid, and a brief statement of the claim of exemption. The purchaser thereafter may apply to the Director for a refund of such taxes, and it shall then be the duty of the Director to determine the question of exemption. In any case where the Town refunds any taxes, it may collect from the retailer the amount of taxes retained by him as a fee which is attributable to the transaction. 3.08.070 Unlawful to Advertise Absorption of Tax. It shall be unlawful for any retailer- to'advertise, to hold out or to state to the public or to any consumer, directly or indirectly, that the tax or any part'thereof imposed by this chapter will be assumed or absorbed by the retailer, or that it will not be added to the selling price of the property sold; or if added, that any part thereof will be refunded. 3.08.080 License for Retailer. It shall be unlawful for any person to engage in the business of making retail sales, as the same is defined herein, without first having obtained a license therefor, which license shall be granted and issued by the Director of Finance, and shall be in force and effect until suspended or revoked. 3.08.090 When License Not Required. No license shall be required for any person engaged exclusively in the business of selling commodities which are exempt from taxation under this chapter. 3.08.10 Itinerant Vendors. Any retailer who does not intend to be actively engaged in selling for a period greater than three (3) consecutive months, shall, prior to obtaining said license, deposit with the Director of Fi- nance, a cash or surety bond in,the amount of'Sixty Dollars ($60.00) for the benefit of the Town, in such form as may be approved by the said Director of Finance, which bond shall be conditioned upon and authority for the payment of the retail sales taxes due or to become due. Such retailers shall make reports of the amount of taxes collected, shall pay the same to the Town of Avon upon such forms and at such items as the Director of Finance may require. A failure to make such report or to pay any tax due at the time specified shall cause an immediate suspension to the license and the forfeiture of the bond posted. 3.08.11 Duty to Keep Books and Records. It shall be the duty of every person required by 'the provisions of Section 3.08.08 to obtain a sales tax license,, to keep and preserve suitable records of all sales made by him, and such other books or accounts as may be necessary to determine the amount of tax for the collection of which he is liable hereunder. It shall be the duty of every such person to keep and preserve for a period of three (3) years all invoices of goods and merchandise purchased for resale, and all such books, invoices and other records shall be open for examination at any time by the Director of Finance or his duly authorized agents. 3.08.12 Sales Tax Return. (a) Every person, partnership or corporation required to obtain a sales tax license pursuant to the provisions of'Section 3.08.08 shall file a sales tax return, upon forms approved by the Director of Finance, 'not less than once every thirty (30) days for the preceding calendar month; providing, however, that, if the accounting methods regularly employed by the licensed - 4 - retailer in the transaction of his business, or other conditions, are such that reports of sales made on a calen- dar monthly basis will impose unnecessary hardship, the Director may, upon request of said retailer, accept reports at such intervals as will, in his opinion, better suit the convenience of the taxpayer, and will not jeopardize the collection of the tax; and provided further, that a retailer doing business in two (2) or more places or locations may file one (1) return covering all such business activities in the Town. (b) The returns so filed shall contain such information as may enable the Director to accurately deter- mine the amount of tax collected by the person, partnership or corporation filing the return, but, in all cases, shall contain the following information: (1) The amount of gross taxable sales made for which the return is filed; (2) The total sales price of all property returned by the purchaser as a result of a return of goods sold by the retailer, provided, the original sale was a taxable transaction; (3) The total fair market value of any property received by the retailer as a result of an exchange of property; provided the property so received is held by the retailer to be sold or leased to a user or consumer in the regular course of his business; (4) The total amount of retail sales which are exempt from the tax imposed by Section 3.08.03 by reason of the provisions of sections 3.08.04 and 3.08.05; (5) The total amount of sales made on credit, the obligation for which is not secured by a conditional sales contract, chattel mortgage or other security instrument entitling the retailer to repossess the item sold, which are found to be worthless and which may be deducted as bad 'debts on the retailer's federal income tax return. (c) The return shall be accompanied by an amount equal to the sales tax required to be collected by the retailer but which in no case, shall be less than the amount actually collected, nor less than four per cent (4%) of the figure derived by subtracting from the gross taxable sales, as reflected on the return, the total sales described in Subsections (b) (2) , - (3) , - (4) and - (5) , above as reflected on the return; provided, however, the retailer may deduct from the total tax due an amount equal to one and six-tenths per cent 1.6%) of the sales,:tax required to be collected, which may be retained by the retailer as a fee for collecting said tax. -(d) All other person, partnerships and corpo- rationsosball pay to the Director-the amount of any tax due under the provisions of Section 3.08.03 not less than fifteen (15) days after the date that said tax becomes due. 3.08.13 Examinations of Returns-Refunds-- Deficiencies.- As. soon as practicable after any sales tax return is 1 ed, the Director of Finance shall examine it, and if it then appears that the correct amount of tax to be - 5 - remitted is 'greater or less than that shown in the return, the tax shall be recomputed. If the amount paid exceeds that which is due, the excess shall be refunded or credited against any subsequent remittance from the same taxpayer. If the amount paid is less than the amount due, the difference together with interest thereon at the rate of one and,one-half per cent (1h%) per month from the time the return was due, shall be paid by the vendor within fifteen (15) days, after written notice and demand to him from the Director. 3.08.14 Penalty, Disregard 'for Rules. If any part of the deficiency is due to negligence or intentional disregard of authorized rules and regulations with knowledge thereof, but without intent to defraud, there shall be added ten per cent (10%) of the total amount of the deficiency; and in such case, interest shall be collected at the rate of one and-one-half per cent (1h$) per month on the amount of the deficiency from the time the return was due, from the person required to file the return, which interest and addition shall become due and payable within fifteen (15) days after written notice and demand by the Director of Finance. 3.08.15 Penalty; Fraud. If any part of the deficiency is due to fraud with the intent to evade the tax, then there shall be added fifty per cent (50%) of the total amount of the deficiency, and in.such case the whole amount of the tax unpaid, including the additions, shall become due and payable fifteen (15) days after written notice and demand by the Director of Finance and an additional one and one-half per cent (1h$) per month on said amounts shall be added from the date the return was due until paid. 3.08'.16 Service charge; Returned Checks. If a check in payment of any sales or-use tax is returned unpaid, a processing charge of Five Dollars ($5.00) will be added to any amount due and owing. 3.08.17 Investigation of Retailer's Books. For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any taxpayer, the Director of Finance may hold investiga- tions and hearings concerning any matters covered by this section, and may examine any relevant books, papers, re- cords, or memoranda of any such person, requiring the attendance of such taxpayer, or any officer or employee of such taxpayer, or of any person having knowledge of such sales, and taking such testimony and proof as may be neces- sary to properly ascertain any tax liability. The Director shall have power to administer oaths to any person in the course of such investigations or hearings. 3.08.18 Dearing, Subpoenas and Witngss Fees. All subpoenas issued under the terms of this chapter may be served by any person eighteen (18) years of age or older. The fees of witnesses for attendance and trial.shall be the same as the fees of witnesses before the District Court, such fees to be paid when the witness is excused from further attendance. When the witness is'subpoenaed at the instance of the Director of Finance, such fees shall be paid in the same manner as other expenses under the terms of this chapter, and when a witness is subpoenaed at the instance of any party to any such proceeding, the Director may require - 6 - J J that the cost of service of the subpoena and the,fee of the witness be borne by the party at whose instance the witness is summoned. In such case, the Director, in his discretion, may require a deposit to cover the cost of such service and witness fee. A subpoena issued as aforesaid shall be served in the same manner as a subpoena issued out of a court of record. 3.08.19 Judge Compels Attendance. Any judge of the District Court of the Fifth Judicial District of the State of Colorado, either in term time or vacation, upon the application of the Director of Finance, may compel the attendance of witnesses,-the production of books, papers, records or memoranda, and the giving of testimony before the Director of Finance or any of his duly authorized agents, by an attachment for contempt, or otherwise, in the same manner as production of evidence may be compelled before said Court. 3.08.20 Sales Tax Information Confidential. (a) Except in accordance with judicial order, or as otherwise herein provided, the Town shall not divulge any information gained from any return filed or as a result of any investigation or hearing held pursuant to the provisions of this section. (b) Nothing contained in this subsection shall be construed to prohibit: (1) The delivery to a person, or to his duly authorized representative, of a copy of any return filed in connection with his tax; (2) The publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof; (3) The inspection by the Town Attorney, or any other legal representative of the Town, of the return or other information relating to any taxpayer who may become involved in litigation with the Town in which the said information may become material. (c) Reports and returns shall be preserved for three (3) years and, thereafter until the Director, of Finance, with the approval of the Town Manager, shall order them destroyed. 3.08.21 Estimated Taxes and Assessment Thereof. (a) If any person neglects or refuses to make a.return for, or payment of any of the taxes levied by this-chapter when the same become due, the Director of Finance shall, at some date subsequent to fifteen (15) days after the date for the making of' such return or the payment of such taxes, give written notice to the person responsible for making said return or paying said taxes or the lack of the filing of such return or payment of said taxes, which notice shall notify the taxpayer, or other person responsible for the return of the tax, that the same must be paid within fifteen (15) days from the date of the receipt of said notice. (b) If the return is not filed, or the taxes are not paid, within fifteen (15) days after receipt of said notice, the Director may make an estimate, based upon such information as may be available to him, of the amount of - 7 - taxes due for the period or periods for which taxpayer is delinquent and shall add thereto a penalty in an amount equal to ten per cent (10%) of said estimated tax, together with interest on said estimated tax at the rate of one and one-half per cent (1h%) per month from the due date thereof, and may assess said amount against the delinquent taxpayer by giving said taxpayer written notice thereof, which notice shall require the taxpayer either to pay the amount assessed by the Director of Finance or to petition him for a correction of said estimate within a period of ten (10) days thereafter. Any such petition for correction shall be in writing and any facts or figures in support thereof shall be submitted upon the oath of the taxpayer. The Director shall consider the matters submitted by the taxpayer and shall make a decision as to the proper amount of taxes, penalty and interest due, which decision shall be final and binding. 3.08.22 Un aid Tax A Prior Lien. (a) The taxes imposed by Section 3.08.03 shall be a first and prior lien upon the goods and business fixtures owned or used by any retailer required by the provisions of Section 3.08.12 to submit a return and make payment of the taxes collected, except the stock of goods held for sale in the ordinary course of business, until said taxes are paid in full. (b) The lien created 'by (a) above shall be construed to be liens and encumbrances upon the specific items of personal property therein enumerated, and shall take precedence over all other liens, encumbrances or claims of whatsoever nature and shall immediately attach to such items without the necessity of the filing of any notice of lien thereof. 3.08.23 Sale of Stock or Quitting Business. (a) Any retailer who shall sell out 'his business or stock of goods or who shall quit business, shall be required to prepare and file a sales tax return as provided in this chapter within fifteen (15) days subsequent to the date of the completion of said sale, or the quitting of business and the purchaser thereof, if any, shall be required to withhold sufficient of the purchase money to cover the amount of said tax due and unpaid, until such time as the said retailer shall produce a receipt from the Director of Finance showing that all such taxes have been paid-and that no further taxes are due. (b) If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided, and the tax shall be due 'and unpaid after the fifteen (15) day period allowed, such purchaser shall be personally liable for the payment of the taxes unpaid by the former owner and the liens created by Section 3.08.22 shall immediately attach to the personal property so purchased; provided, however, that the retailer so selling or quitting business shall not be relieved in any manner of his liabil- ity for payment of any of said taxes due. 3.08.24 Enforcement 'of Taxes and Foreclosure of Liens. (a) If any taxes, penalty or interest imposed by Eh- chapter and shown due by returns filed by the taxpayer, or as shown by assessment duly made as provided herein, are not paid within fifteen (15) days after the same are due, the Director of Finance shall issue a warrant under his official seal directed to any duly authorized revenue collector, or to the sheriff of any county in this state commanding him to levy upon, seize and sell sufficient personal property of the tax debtor which is subject to the - 8 - J liens created by Section 3.08.22,found within his county for the payment of the amount due, together with interest, penalties and costs. (b) Simultaneously with the issuance of said warrant, the Director shall issue a'notice of tax lien, setting forth the name of the taxpayer, the amount of the tax, penalties, interest and costs, the date of the accrual thereof and that the Town claims a first and prior lien therefor on the tangible personal property of the taxpayer subject to said liens. (c) Such notice shall be on forms prepared by the Director, shall be verified by him and shall be filed in the office of the Clerk and Recorder of any county in this state in which the taxpayer owns tangible personal property subject to said liens. (d) Upon the filing of said notice of lien, the effective date of said lien shall relate back to the date of the first transaction for which any tax is due. 3.08.25 Refunds--Procedure. (a) A refund shall be made.or credit allowed for any tax paid under protest by any purchaser. who has or claims to have an exemption as in this chapter provided. Such refund shall be made by the Director of Finance after compliance with the following conditions precedent: (1) Application. Applications for refund must be made within ninety ~(90) days after the purchase or use of goods on which the exemption is claimed and must be supported by the affidavit of the purchaser, accompanied by the original paid invoice or sales receipt and a certificate issued by the seller, together with such further informa- tion as may be requested by-'the Director. (2) Decisions. Upon,receipt of such application and accompanying information the Director shall examine the same with all due speed and shall give notice to the applicant by an order in writing of his decision thereon. (3) Hearing. An aggrieved applicant may, within ten (10) days after such decision is mailed to him, petition the Director,-for a hearing on the claim, in which case the Director shall, upon due notice to the applicant, hold a hearing upon such application, taking such information or evidence as may, be material, and shall thereafter render his final decision upon such application, which decision shall be final. (b) Any person claiming to have paid a tax for the purchase or use of tangible personal property in excess of the rates established by this chapter may apply for a refund of said excess in the manner prescribed above. 3.08.26 Refund Not Assignable. The right of any person to arefund under this chapter shall not be assign- able, and application for refund must be made by the same person who purchased or used the goods and who paid the tax thereon, as shown by the invoice of the sale thereof or other appropriate document. - 9 - C 3.08.27 Notices Sent By Mail. All notices required to be given to the retailer or vendor under the provisions of this chapter shall be in writing and, if mailed, to him at his last known address shall be sufficient for the purpose of this chapter. 3.08.28 License and Tax in Addition to All Other ~'Taxes. The license and tax imposed by this chapter shall be a'in-addition to all other licenses and taxes imposed by law, except as herein otherwise provided. xr" . 3:08.29 Administration. The administration of P,la11' the provisions of this chapter is hereby vested in the Director of Finance, who may, with the approval of the Town Manager, prescribe forms and reasonable rules and regu- lations in conformity with this chapter fob, the making of ;returns, for the ascertainment, assessment and collection of the taxes imposed hereunder, and for the proper adminis- %tration and,enforcement hereof, a copy of which forms, rules ~'i 'd regulations shall•b4~! made available to the public. 3.08.30 Unlawful Acts. It shall be unlawful for any person to fail to perform any affirmative duty required by this Chapter or to willfully make, prepare or submit a tax return or other document containing any false statement, or to willfully make a false statement in any investigation or hearing, which may affect the tax liability of any person. Section 2. Penalties. Any person, firm or corporation violating any of the provisions of this Ordinance shall be deemed guilty of a violation of this Ordinance and any such person, firm or corporation shall be deemed guilty of a separate offense for each and every day or portion thereof during which any violation is committed, continued or permitted, and upon conviction of any such violation, such person, firm or corporation shall be punished by a fine of not more than $500.00 or by imprisonment for not more than 90 days, or by both such fine and imprisonment. Section 3. Severability. If any part or parts hereof are for any reason held to be invalid, such shall not affect the remaining portions of this Ordinance. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, THIS 12th day of November , 1982 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 23rd day of November , 1982 at 7:30 P.M. in the Municipal Building of the Town of Avon, - 10 - S{, ' Colorado. is J. oyle, s4r, - Allan R. ottingh Mayor ~'-,INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED `;POSTED THIS 23rd DAY OF November ► 1982. ATTE Allan R. N ttingham,. ayor y, Patricia J. Moyle, a" I i ADDENDUM I EQUIPMENT LEASE AGREEMENT The Lease is,made this day of 19 between Colorado National Leasing, Inc., a Colorado corporation ("Lessor"), and the Town of Avon ("Lessee"). In consideration of the mutual covenants and promises herein set forth, the parties agree as follows: 1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases and hires from Lessor, the property, machinery and equipment ("Equipment") described in the Equipment Description (Exhibit. A attached hereto and made a part hereof). 2. TERM. This Lease shall commence on the date hereof and unless sooner terminated as provided herein, shall expire 3 . year(s) from the date of first delivery of any item of the Equipment. 3. RENT. Rent for the Equipment shall be in the amount set forth in the Equipment Lease Schedule (Exhibit B attached hereto and made a part hereof). Lessee shall pay Lessor such rent in the amounts and at the times set forth on Exhibit B at the office of Lessor in Golden, Colorado, or to such other person and/or at such other place as Lessor may from time to time designate in writing. 4. USE. Lessee shall use the Equipment in a careful and proper manner and shall comply with all applicable governmental laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. If at any time during the term hereof Lessor supplies Lessee with labels, plates or other markings, stating that the Equipment is owned by Lessor, Lessee shall affix the same to a prominent place on the Equipment. 5. LESSEE'S INSPECTION; WARRANTY DISCLAIMER. (a) Lessee shall inspect the Equipment within forty-eight (48) hours after receipt thereof. Unless Lessee within such period of time gives written notice to Lessor, specifying any defect in or other proper objection to the Equipment, Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that Lessee has fully inspected and acknowledged that the Equipment is in good condition and repair, and that Lessee is satisfied with and has accepted the Equipment in such good condition and repair. At or prior to expiration of such inspection period, Lessee shall execute and deliver to Lessor the Certificate of Acceptance. Exhibit C attached hereto and made a part hereof). (b) Lessor hereby assigns to Lessee for and during the term of this Lease all manufacturer's warranties and guarantees, express or implied, with respect to the Equipment, to the extent such warranties and guarantees are assignable. Lessee acknowledges that it selected each item of Equipment based on its own analysis and investigation from vendors chosen by Lessee and further acknowledges that Lessor made no representations or warranties in connection with the Equipment.or vendors. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN, CONDITION OR WORKMANSHIP AND THE ENFORCEABILITY OF ANY WARRANTY OR GUARANTEE OF THE MANUFACTURER OF THE EQUIPMENT. -1- 6. LESSOR'S INSPECTION. Lessor shall at any and all times during business hours have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. 7. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall not`make any alterations, additions or improvements to the Equipment. 8. REPAIRS. Lessee, at its own cost and expense, shall keep the Equipment in good repair and condition and shall bear all expenses of the maintenance and operation of the Equipment. 9. INSURANCE; LOSS AND DAMAGE; AGREED OPTION PRICE. Lessee shall keep the Equipment insured against all risks of loss or damage by fire and such other risks as are covered by endorsement commonly known as supplemental or extended coverage for the greater of,the fair market value thereof or the "Agreed Option Price" set forth in Exhibit B attached hereto with respect to the Equipment. Lessee shall also carry public liability and property damage insurance covering the Equipment in amounts not less than $200,000 in respect of bodily injury or death to any person, not less than $500,000 in respect of any one accident, and not less than $100,000 in respect of property damage. All such liability insurance shall insure both Lessor and Lessee and all such property damage insurance shall name Lessor as loss payee as its interest may appear. Lessee may effect such coverages under its blanket policies. No loss or damage to the Equipment or any part thereof shall impair any obligation of the Lessee under this Lease which shall continue in full force and effect. In the event of loss or damage of any kind whatever to any item of Equipment, the proceeds of such insurance shall be applied to any item of Equipment: (a) To place the same in good repair, condition and working order, or replace the same with like Equipment in good repair, condition and working order; or (b) If, in the reasonable judgment of Lessor, the Equipment is determined to be lost, stolen, destroyed or damaged beyond repair, Lessee shall pay'Lessor therefor in cash, to the extent the insurance proceeds paid to Lessor may be insufficient, the Agreed Option Price set forth in Exhibit B determined as of the date of the last full rental ,payment made by Lessee, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Upon such payment this Lease shall terminate with respect to the Equipment so paid for and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS," WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 10. SURRENDER. Except as provided in paragraph 20 hereof, upon the expiration or earlier termination of this Lease, Lessee shall (unless Lessee has purchased the Equipment pursuant to paragraphs 9 or 19 hereof) return the same to Lessor in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof excepted, by delivering, at Lessee's sole cost and expense, possession of the Equipment to Lessor at such place as Lessor may designate. 11. TAXES AND LIENS. (a) Lessee agrees to pay and to indemnify and hold -2- 0 9 Lessor harmless from all license, sales, use, personal property or other taxes together with any penalties, fines or interest thereon imposed or levied with respect to the Equipment or the ownership, delivery, lease, possession, use, operation, sale or the disposition thereof, or upon the rentals or earnings arising therefrom. (b) Lessee shall not directly or indirectly create, incur, assume or suffer to exist any security interest, lien or encumbrance on or with respect to any item of Equipment or any interest therein. Lessee shall promptly, at its expense, take such action as may be necessary to discharge any such security interest, lien or encumbrance as and when the same shall arise. 12. LESSOR'S PAYMENT. In case of the failure of the Lessee to procure or maintain insurance on the Equipment, pay taxes on or with respect to the Equipment or maintain the Equipment free and clear of any security interests, liens and encumbrances, as herein specified, Lessor shall have the right, but not be obligated, to effect such insurance, to pay such taxes and discharge such security interest, liens and encumbrances and the cost thereof shall be-repayable to Lessor with the next installment of rent. 13. DEFAULT. If the Lessee shall fail to pay the rent due and payable under Exhibit B attched hereto within ten (10) days after the same is due and payable, or if the Lessee shall fail to observe, keep or perform any other provision of this Lease for a period of ten (10) days after receipt of written notice thereof, Lessor shall have the right to exercise any one or more of the following remedies: (a) To terminate this Lease and to sue for and recover all rents and other payments then accrued and unpaid hereunder and all rents and other payments which will accrue during the then current fiscal year of Lessee. (b) To retain all rentals and to take possession of any or all items or Equipment, without further demand or notice and without any court order or other process of law, and either to remove the same or to lease the same'to others. 14. TERMINATION FOR NON-APPROPRIATION. Notwithstanding anything herein to the contrary, if Lessee does not appropriate funds for any fiscal year of Lessee during the term hereof sufficient to pay the amounts due hereunder in such fiscal year and Lessee has exhausted all funds legally available for payments due under this Lease, Lessee may, by written notice given to Lessor no later than ten (10) days after adoption of the budget for such fiscal year, thereupon terminate this Lease. Upon such termination, Lessee shall return the Equipment to Lessor in accordance with paragraph 10 hereof and pay all rents and other payments due to Lessor for periods prior to the date the Equipment is so returned to Lessor. 15. ASSIGNMENT. Without the prior written consent of Lessor, Lessee shall neither assign, transfer., pledge or hypothecate this Lease, the Equipment or any part thereof, or any interest therein, nor sublet any item of Equipment. It is understood that Lessor contemplates assigning this Lease or interests in the Equipment and that Lessor's assignee may also assign the same. All rights of Lessor hereunder may be"assigned, transferred, or otherwise disposed of, either in whole or in part, without notice to Lessee; provided, however that no assignment of this Lease or any interest therein shall be made except subject to the rights granted to the Lessee by virtue of this Lease; and provided further that no assignee of Lessor shall be -3- obligated to perform any duty, covenant or condition required to be performed by Lessor under the terms of this Lease. 16. PERSONAL PROPERTY. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment may be affixed or attached to, or ' imbedded in, or permanently resting upon, real property or any building thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. 17. INDEMNITY; LIMITS OF LIABILITY. Lessee hereby assumes liability for and agrees to indemnify and hold Lessor harmless from and against any and all debts, liabilities, obligations, claims and expenses, including court costs and attorney's fees, incurred by or asserted against Lessor in connection with, arising out of or incident to the ownership, delivery, lease, possession, use, operation, condition, sale or other disposition of any item of Equipment. Lessor is not responsible for any repairs or service to the Equipment or any defects therein. Lessor shall not be liable for any consequential, incidental or special damages of any character as a result of or arising out of the lease of the Equipment, or any item thereof, including loss of profits, property damage or lost production, whether suffered by Lessee or any other person. 18. INTEREST. Should Lessee fail to pay any part of the rent herein reserved or any other sum required by Lessee to be paid to Lessor, within 10 days after the due date thereof, Lessee shall pay to the Lessor interest on such delinquent payment from the due date until paid at the rate of 18% per annum 19. OPTION. Provided Lessee is not in default in the performance of its obligations hereunder, Lessee shall have the option, at any time after to purchase the Equipment for an amount -equal to the Agreed Option Price thereof set forth in Exhibit B at the date of the last full rental payment, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Such option to purchase the Equipment shall be exercised by the payment of the Agreed Option Price plus interest as herein provided to Lessor at Lessor's office in Golden, Colorado. If Lessee exercises the option to purchase the Equipment, title thereto shall thereupon become vested in Lessee and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER 20. EXPIRATION. If Lessee shall comply with all provisions of this Lease on its part to be kept and performed, then upon the expiration of this Lease, all right, title and interest of Lessor in the Equipment subject to this Lease shall vest in and become the property of Lessee, and Lessor sale transferring such Equipment to Lessee, "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 21. TAX EXEMPTION. The "Rent", "Interest", "Agreed Option Price" and other computations set forth in this Lease and exhibits attached hereto have been fixed and computed upon the assumption that the amount designated as "Interest" will be exempt from federal income taxation and (if so noted on Exhibit B) state income_ taxation in the hands of the Lessor and its assignees. If it is determined that such -4- "Interest" payments are not so exempt, then the items of "Rent", "Interest", "Agreed Option Price" and related computations payable by the Lessee to Lessor hereunder shall be adjusted so as to provide Lessor with the amount of such items as shall equal, on an after tax basis, the amount thereof set forth in this Lease and Exhibits attached hereto. The method and timing of the payment of such adjustment shall be as mutually agreed upon promptly following notice to Lessee of the need for such adjustment. 22. FINANCIAL STATEMENTS. Lessee shall furnish to Lessor, within sixty (60) days after the end of each fiscal quarter of Lessee, financial statements of Lessee which shall include a balance sheet and statement of revenue and expense of Lessee for the quarter and the year to date and such other information and reports as Lessor shall reasonably request. All such financial statements shall be certified to be true and correct by the appropriate officer of Lessee. 23. CLAIMS. Lessor hereby appoints and constitutes Lessee as its agent and attorney-in-fact during the term of this Lease to assert and enforce, at the sole cost and expense of the Lessee, whatever claims and rights the Lessor may have as owner of the Equipment against any vendors, manufacturers, suppliers or contractors in respect thereof. 24. NON-WAIVER. No waiver of any of the Lessee's, obligations under this Lease shall be deemed to take place unless such waiver has been made in writing and signed by the Lessor. Failure to exercise any remedy which Lessor may have under this Lease or any other acquiescence by the Lessor in any default by the Lessee shall not constitute a waiver of any obligation of Lessee hereunder, including the obligation as to which Lessee is in default. 25. CONCURRENT REMEDIES. No right or remedy conferred upon or reserved to the Lessor in this Lease is exclusive of any other right or remedy provided or permitted herein by law or equity; but each shall be cumulative of any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith, or from time to time. 26. MODIFICATION. This Lease constitutes the entire agreement between Lessor and Lessee and shall not be amended, altered or modified except in a writing signed by the parties hereto. 27. NOTICES. All notices required or permitted hereunder shall be sufficient if delivered personally or mailed to the parties at the address hereafter set forth or at such other address as either party may designate in writing from time to time. Any such notice shall be effective 48 hours after it has been deposited in the United States mail, duly addressed and with postage prepaid. 28. GOVERNING LAW. This Lease and other instruments or documents executed by the parties hereto, and the rights and duties of the parties hereto, shall be construed and enforced in accordance with the laws of the State of Colorado. 29. TIME. Time is of the essence of this Lease and each and all of its provisions. 30. SEVERABILITY. If any provision in this Lease or the application of such provision to any person or -5- 0 0 IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year first above written. LESSOR: COLORADO NATIONAL LEASING, INC. By Bldg. 51, Suite 150 14142 Denver West Pkwy. Golden, CO 80401 LESSEE: By ATTACHMENTS: Resolution No. of the -c Equipment Description (Exhibit A) .,Equipment Lease Schedule (Exhibit B) -%Certificate of Acceptance (Exhibit C) -AOpinion of Counsel -6- CERTIFICATE OF ACCEPTANCE The undersigned hereby certifies that it has received, inspected, approved and hereby accepts delivery of the following equipment upon the terms and conditions set forth herein and in that Equipment Lease Agreement dated between the undersigned and Colorado National Leasing, Inc., a Colorado corporation: 1. Description of-Equipment 1 - JT4RN48SOD0060744 new 1983 Toyota 4 W.D. pickup SR-5 w/camper shell 2. Cost: The cost of the equipment is $ 10,500.00 The undersigned further certified that the foregoing equipment is in good order and condition, and con- forms to the specifications applicable thereto. The execution of this Certificate will in no way relieve or decrease the responsibility of the manufacturer of the equipment for any warranties it has made with respect to the same. The undersigned hereby requests Colorado National Leasing, Inc. to process payment in the amount of $10,500.00 to the vendor. Dated: Y TOWN OF AVON By Y. Lessee AT-TEST: EQUIPMENT LEASE SCHEDULE A. EQUIPMENT LEASED: 1 - JT4RN48SOD0060744 new 1983 Toyota 4 W.D. Pickup SR-5 W/camper shell B. TERM: Unless sooner terminated as set forth in the Lease, the term of this Lease respecting-each item of equipment listed on this schedule on shall commence on and shall expire on C. RENT: As rent for said equipment, Lessee shall pay 1 Lessor the sum of $12.384.00 , payable in installments as follows: 36 monthly .payments of $344 00 commencing on , which said installments of rental include interest at a rate of 11.75 per annum on the Agreed Option Price. D. LOCATION: The above described equipment shall be located at Town of Avon, Avon, Colorado and shall not be removed therefrom without the prior written consent of Lessor. APPROVED AND AGREED TO THIS DAY OF 19 as a schedule to that certain Lease dated the day of ,f 19 r COLORADO NATIONAL LEASING, INC. By LESSOR TOWN OF AVON BY LESSEE 0 LF.ASF R P8202 FXHTRTT R F.OUIPMFNT LFASF SC14FDULF i PAYMENT NO. TAL BALANCE 1 2 4 5 6 7 8 9' 10 11 12 13 - .14- 15 16 17 1P 19 2n 21 22 23. 24, 25 26 27 28 29 30 31 ?2 33 34 35 36 FF.NT PA YM ENT 3114.00 344.00 344.00 344.00 344.00 ?44.00 ?44.00 344.00 344.00 344.00 3411.00 344.00 344.00 344. no 3n4.no X44.00 ?44.no 344. no 344.00 344,00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344.00 344. 00 344.00 3411.00 DFShNATF.D RFDUCTTON OF TNTEREST PRINCIPAL 101 . P4 99.01 96.. 1P 03.35 90.52 9-. 6q 84.-96 P2. 014 7q. 21 76.,3 71.99 70.72 67.P9 65. (r, 62.2 59.41 96,C~P 53.75 50.02 4P.09 45.26 lip. It? ?9.60 ?6.77 33 95 31.12 28.29 25.46 22..6? 19. Po 16.97 14.14 11.32 P. 49 5.66 2.£3 PALANCF. OF AGRFF.D PFTNCIPAI. OPTION PRICE 1o,5nn.no 10,P67.9n 242.16 10,?57.P4 10,605.117 244.04 1n,n12.P5 10,341.17 247.P2 0,765.03 10,0711.54 ?50.65 0,514.38 9,P05.7'~ 253.LR 9,260.90 9,531:.59 256.31 9, 004, 9q 9,261.1P 259.14 P,745.46 814-95.49 261.06 8.118 3.50 8,707.93 26:4.7q P , 21 R. 70 P , 42.7.2P 267.62 7,991-OP P,144.76 27n. 11r; 7,6-90.63 7,P59.07 273.2P 7,407.35 7,572.-99 276.11 7,1?1.24 7,?-93.54 27P.94 6,852.31 6,091.91 291.77 6,570.54 6,69P.01 2P11.59 6,235.95 6,401.P2 2P7.42 5,9QP.~2 6,103.36 200.25 5,70P.27 5,P02.63 293.0,P 5,415.10 5,4on,6.1 295.91 5,110.2-9 5,194.72 29P.74 1.,P2n.94 4,PP6.76 ?01.57 11,51P.97 4,-)76.91 3n4. 4o 4,214.48 4,204.74 707.?3 3,907.35 3.950.?9 310,05 x,507,?0 ?12.PF 2P11.111 76 315.71 2,06-9.70 2,993.5? 31P.54 2,650.16 J,670.03 721.37 ;),32P.79 2,344.211 ?24.20 2, 004.99 2,016.1p ?27.03 1,677.57 1,6P~.84 329.-99 1,347.71 1,?53.23 332.6P 1,n15.o3 1,n1P.34 335.51 679.51 6P1.17 33P.34 ?41.17 3111.7? ?41.17 -.00 -.00 0 ADDENDUM II The Lease is made this day 19 between Colorado National Leasing, corporation ("Lessor"), and the Town EQUIPMENT LEASE AGREEMENT of Inc., of Avon a Colorado ("Lessee"). In consideration of the mutual covenants and promises herein set forth, the parties agree as follows: 1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases and hires from Lessor, the property, machinery and equipment ("Equipment") described in the Equipment Description (Exhibit A attached hereto and made a part hereof). 2. TERM. This Lease shall commence on the date hereof and unless sooner,-,terminated as provided herein, shall expire 5 year\(s) from the date of first delivery of any .item of the Equipment. 3. RENT. Rent for the Equipment shall be in the amount set forth in the Equipment Lease Schedule (Exhibit B attached hereto andrmade a part hereof). Lessee shall pay Lessor such rent in the amounts and at the times set forth on Exhibit B at the office of Lessor in Golden, Colorado, or to such other person and/or at such other place as Lessor may from time to time designate in writing. 4. USE. Lessee shall use the Equipment in a careful and proper manner and shall comply with all applicable governmental laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. If at any time during the term hereof Lessor supplies Lessee with labels, plates or other markings, stating that the Equipment is owned by Lessor, Lessee shall affix the same to a prominent place on the Equipment. 5. LESSEE'S INSPECTION; WARRANTY DISCLAIMER. (a) Lessee shall inspect the Equipment within forty-eight (48) hours after receipt thereof. Unless Lessee within such period of time gives written notice to Lessor, specifying any defect in or other proper objection to the Equipment, Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that Lessee has fully inspected and acknowledged that the Equipment is in good condition and repair, and that Lessee is satisfied with and has accepted the Equipment in such good condition and repair. At or prior to expiration of such inspection period, Lessee shall execute and deliver to Lessor the Certificate of Acceptance. Exhibit C attached hereto and made a part hereof). (b) Lessor hereby assigns to Lessee for and during the term of this Lease all manufacturer's warranties and guarantees, express or implied, with respect to the Equipment, to the extent such warranties and guarantees are assignable. Lessee acknowledges that it selected each item of Equipment based on its own analysis and investigation from vendors chosen by Lessee and further acknowledges that Lessor made no representations or warranties in connection with the Equipment or vendors. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE MERCHANTABILITY OF THE-EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN, CONDITION OR WORKMANSHIP AND THE ENFORCEABILITY OF ANY WARRANTY OR GUARANTEE OF THE MANUFACTURER OF THE EQUIPMEN'T'. -1- • 9 6. LESSOR'S INSPECTION. Lessor shall at any and all times during business hours have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. 7. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall not make any alterations, additions or improvements to the Equipment. 8. REPAIRS. Lessee, at its own cost and expense, shall keep the Equipment in good repair and condition and shall bear all expenses of the maintenance and operation of the Equipment. 9. INSURANCE; LOSS AND DAMAGE; AGREED OPTION PRICE. Lessee shall keep the Equipment insured against all risks of loss or damage by fire and such other risks as are covered by endorsement commonly known as supplemental or extended coverage for the greater of the fair market value thereof or the "Agreed Option Price" set forth in Exhibit B attached hereto with respect to the Equipment. Lessee shall also carry public liability and property damage insurance covering the Equipment in amounts not less than $200,000 in respect of bodily injury or death to any person, not less than $500,000 in respect of any one accident, and not less than $100,000 in respect of property damage. All such liability insurance shall insure both Lessor and Lessee and all such property damage insurance shall name Lessor as loss payee as its interest may appear. Lessee may effect such coverages under its blanket policies. No loss or damage to the Equipment or any part thereof shall impair any obligation of the Lessee under this Lease which shall continue in full force and effect. In the event of loss or damage of any kind whatever to any item of Equipment, the proceeds of such insurance shall be applied to any item of Equipment: (a) To place the same in good repair, condition and working order, or replace the same with like Equipment in good repair, condition and working order; or (b) If, in the reasonable judgment of Lessor, the Equipment is determined to be lost, stolen, destroyed or damaged beyond repair, Lessee shall pay Lessor therefor in cash, to the extent the insurance proceeds paid to Lessor may be insufficient, the Agreed Option Price set forth in Exhibit B determined as of the date of the last full rental payment made by Lessee, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Upon such payment this Lease shall terminate with respect to the Equipment so paid for and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS," WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 10. SURRENDER. Except as provided in paragraph 20 hereof, upon the expiration or earlier termination of this Lease, Lessee shall (unless Lessee has purchased the Equipment pursuant to paragraphs 9 or 19 hereof) return the same to Lessor in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof excepted, by delivering, at Lessee's sole cost and expense, possession of the Equipment to Lessor at such place as Lessor may designate. 11. TAXES AND LIENS. (a) Lessee agrees to pay and to indemnify and hold -2- • 0 Lessor harmless from all license, sales, use, personal property or other taxes together with any penalties, fines or interest thereon imposed or levied with respect to the Equipment or the ownership, delivery, lease, possession, use, operation, sale or the disposition thereof, or upon the rentals or earnings arising therefrom. (b) Lessee shall not directly or indirectly create, incur, assume or suffer to exist any security interest, lien or encumbrance on or with respect to any item of Equipment or any interest therein. Lessee shall promptly, at its expense, take such action as may be necessary to discharge any such security interest, lien or encumbrance as and when the same shall arise. 12. LESSOR'S PAYMENT. In case of the failure of the Lessee to procure or maintain insurance on the Equipment, pay taxes on or with respect to the Equipment or maintain the Equipment free and clear of any security interests, liens and encumbrances, as herein specified, Lessor shall have the right, but not be obligated, to effect such insurance, to pay such taxes and discharge such security interest, liens and encumbrances and the cost thereof shall be repayable to Lessor with the next installment of rent. 13. DEFAULT. If the Lessee shall fail to pay the rent due and payable under Exhibit B attched hereto within ten (10) days after the same is due and payable, or if the Lessee shall fail to observe, keep or perform any other provision of this Lease for a period of ten (10) days after receipt of written notice thereof, Lessor shall have the right to exercise any one or more of the following remedies: (a) To terminate this Lease and to sue for and recover all rents and other payments then accrued and unpaid hereunder and all rents and other payments which will accrue during the then current fiscal year of Lessee. (b) To retain all rentals and to take possession of any or all items or Equipment, without further demand or notice and without any court order or other process of law, and either to remove the same or to lease the same-to others. 14. TERMINATION FOR NON-APPROPRIATION. Notwithstanding anything herein to the contrary, if Lessee does not appropriate funds for any fiscal year of Lessee during the term hereof sufficient to pay the amounts due hereunder in such fiscal year and Lessee has exhausted all funds legally available for payments due under this Lease, Lessee may, by written notice given to Lessor no later than ten (10) days after adoption of the budget for such fiscal year, thereupon terminate this Lease. Upon such termination, Lessee shall return the Equipment to Lessor in accordance with paragraph 10 hereof and pay all rents and other payments due to Lessor for periods prior to the date the Equipment is so returned to Lessor. 15. ASSIGNMENT. Without the prior written consent of Lessor, Lessee shall neither assign, transfer, pledge or hypothecate this Lease, the Equipment or any part thereof, or any interest therein, nor sublet any item of Equipment. It is understood that Lessor contemplates assigning this Lease or interests in the Equipment and that Lessor's assignee may also assign the same. All rights of Lessor hereunder may be assigned, transferred, or otherwise disposed of, either in whole or in part, without notice to Lessee; provided, however that no assignment of this Lease or any interest therein shall be made except subject to the rights granted to the Lessee by virtue of this Lease; and provided further that no assignee of Lessor shall be -3- • 0 obligated to perform any duty, covenant or condition required to be performed by Lessor under the terms of this Lease. 16. PERSONAL PROPERTY. The Equipment is, and shall at all times be-and remain, personal property notwithstanding that the Equipment may be affixed or attached to, or imbedded in, or permanently resting upon, real property or any building thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. 17. INDEMNITY; LIMITS OF LIABILITY. Lessee hereby assumes liability for and agrees to indemnify and hold Lessor harmless from and against any and all debts, liabilities, obligations, claims and expenses, including court costs and attorney's fees, incurred by or asserted against Lessor in connection with, arising out of or incident to the ownership, delivery, lease, possession, use, operation, condition, sale or other disposition of any item of Equipment. Lessor is not responsible for any repairs or service to the Equipment or any defects therein. Lessor shall not be liable for any consequential, incidental or special damages of any character as a result of or arising out of the lease of the Equipment, or any item thereof, including loss of profits, property damage or lost production, whether suffered by Lessee or any other person. 18. INTEREST. Should Lessee fail to pay any part of the rent herein reserved or any other sum required by Lessee to be paid to Lessor, within 10 days after the due date thereof, Lessee shall pay to the Lessor interest on such delinquent payment from the due date until paid at the rate of 18% per annum 19. OPTION. Provided Lessee is not in default in the performance of its obligations hereunder, Lessee shall have the option, at any time after February 28, 1983 to purchase the Equipment for an amount equal to the Agreed Option Price thereof set forth in Exhibit B at the date of the last full rental payment, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Such option to purchase the Equipment shall be exercised by the payment of the Agreed Option Price plus interest as herein provided to Lessor at Lessor's office in Golden, Colorado. If Lessee exercises the option to purchase the Equipment, title thereto shall thereupon become vested in Lessee and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 20. EXPIRATION. If Lessee shall comply with all provisions of this Lease on its part to be kept and performed, then upon the expiration of this Lease, all right, title and interest of Lessor in the Equipment subject to this Lease shall vest in and become the property of Lessee, and Lessor sale transferring such Equipment to Lessee, "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 21. TAX EXEMPTION. The "Rent", "Interest", "Agreed Option Price" and other computations set forth in this Lease and exhibits attached hereto have been fixed and computed upon the assumption that the amount designated as "Interest" will be exempt from federal income taxation and (if so noted on Exhibit B) state income taxation in the hands of the Lessor and its assignees. If it is determined that such -4- • i "Interest" payments are not so exempt, then the items of "Rent", "Interest", "Agreed Option Price" and related computations payable by the Lessee to Lessor hereunder shall be adjusted so as\to provide Lessor with the amount of such items as shall equal, on an after tax basis, the amount thereof set forth in this Lease and Exhibits attached hereto. The method and timing of the payment of such adjustment shall be as mutually agreed upon promptly following notice to, Lessee of the need for such adjustment. 22. FINANCIAL STATEMENTS. Lessee shall furnish to Lessor, within sixty (60) days after the end of each fiscal quarter of Lessee, financial statements of Lessee which shall include a balance sheet and statement of revenue and expense of Lessee for the quarter and the year to date and such other information and reports as Lessor shall reasonably request. All such financial statements shall be certified to be true and correct by the appropriate officer of Lessee. 23. CLAIMS. Lessor hereby appoints and constitutes Lessee as its agent and attorney-in-fact during the term of this Lease to assert and enforce, at the sole cost and expense of the Lessee, whatever claims and rights the Lessor may have as owner of the Equipment against any vendors, manufacturers, suppliers or contractors in respect thereof. 24. NON-WAIVER. No waiver of any of the Lessee's obligations under this Lease shall be deemed to take place unless such waiver has been made in writing and signed by the Lessor. Failure to exercise any remedy which Lessor may have under this Lease or any other acquiescence by the Lessor in any default by the Lessee shall not constitute a waiver of any obligation of Lessee hereunder, including the obligation as to which Lessee is in default. 25. CONCURRENT REMEDIES. No right or remedy conferred upon or reserved to the Lessor in this Lease is exclusive of any other right or remedy provided or permitted herein by law or equity; but each shall be cumulative of any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith, or from time to time. 26. MODIFICATION. This Lease constitutes the entire agreement between Lessor and Lessee and shall not be amended, altered or modified except in a writing signed by the parties hereto. 27. NOTICES. All notices required or permitted hereunder shall be sufficient if delivered personally or mailed to the parties at the address hereafter set forth or at such other address as either party may designate in writing from time to time. Any such notice shall be effective 48 hours after it has been deposited in the United States mail, duly addressed and with postage prepaid. 28. GOVERNING LAW. This Lease and other instruments or documents executed by the parties hereto, and the rights and duties of the parties hereto, shall be construed and enforced in accordance with the laws of the State of Colorado. 29. TIME. Time is of the essence of this Lease and each and all of its provisions. 30. SEVERABILITY. If any provision in this Lease or the application of such provision to any person or circumstance shall be invalid, illegal or unenforceable, the -5- • 0 remainder of this Lease or the application of such provision to persons or circumstances other than those to which it is invalid, illegal or unenforceable shall not be affected thereby. IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year first above written. LESSOR: COLORADO NATIONAL LEASING, INC. By Bldg. 51, Suite 150 14142 Denver West Pkwy. Golden, CO 80401 LESSEE: TOWN OF AVON By tt ATTACHMENTS: Resolution No.4 of they 1Equipment Description (Exhibit A) NEquipment Lease Schedule (Exhibit B) Certificate of Acceptance (Exhibit C) .Opinion of Counsel -6- CERTIFICATE OF ACCEPTANCE The undersigned hereby certifies that it has received, inspected, approved and hereby accepts delivery of the following equipment upon the terms and conditions set forth herein and in that Equipment Lease Agreement dated between the undersigned and Colorado National Leasing, Inc., a Colorado corporation: 1. Description of Equipment 1 - New P2327 Oshkosh (snowplow) 2. `Cost: The cost of the equipment is $121,088.12 . The undersigned further certified that the foregoing equipment is in good order and condition, and con- forms to the specifications applicable thereto. The execution of this Certificate will in no way relieve or decrease the responsibility of the manufacturer of the equipment for any warranties it has made with respect to the same. The undersigned hereby requests Colorado National Leasing, Inc. to process payment in the amount of $121,088.12 to the vendor. Dated: TOWN OF AVON By A Lessee ATTEST: ~ a EQUIPMENT LEASE SCHEDULE A. EQUIPMENT LEASED: 1 - New P2327 Oshkosh (snowplow) B. TERM: Unless sooner terminated as set forth in the Lease, the term of this Lease respecting each item of equipment listed on this schedule on shall commence on and shall expire on C. RENT: As rent for said equipment, Lessee shall pay Lessor the sum of 159,180.00 , payable in installments as follows: 60 monthly payments of $2,653.00 commencing on , which said installments of rental include interest at a rate of 11.75 per annum on the Agreed Option Price. D. LOCATION: The above described equipment shall be located at Town of Avon, Avon, Colorado and shall not be removed therefrom without the prior written consent of Lessor. APPROVED AND AGREED TO THIS DAY OF as a schedul~\to that certain Lease dated the of 19 COLORADO NATIONAL LEASING, INC. t By, LESSOR TOWN OF AVON 19 day By LESSEE LFAFF. # P8?O1 PAYMENT RFNT NO. PAYMFNT F.XHIPTT P FC?UTPVFNT LFASF OCf'FPIILF. PUTGNATEP REDUCTION OF TNTF.RFST PRTPICTPAL. PALANCF CF AGRFF.P PRTNCTPAL OPTTO%l PRICF IAL PALANCE 121,OPP.12 125,??6.20 1 2,65?.on 1,24P.Q1 1,4ol1.n4 119,6PL,.n,~ 12?,783.16 2 2,6.5').00 1,22P.10 1,L24.Qn 118,259.17 12?,221.(,2 3 2,653.00 1,207.?P 1,1146.7? 116,817.42 120,641.5P 4 2,F53.OO 1,1P6.47 1,466.53 115,246.88 114,043.05 5 2,653.00 1,165.69 1,1IP7.35 112,859.54 117,426.01 6 2,653.00 1,144.84 1,5n8.16 112.291.?8 115.700.47 7 2,653.00 1,1?4.n2 1,52P.9P llo,8?2.40, 114,186,44 8 2,653.oo 1,10?.?1 1,x49.70 109,272.61 112,463.00 9 2,653.00 1,CP2.?O 1,570.61 107,"02.00 11n,772.87 10 2,653.00 1,061.58 1,-,91.42 106,11n.9P 109,063.34 11 2,65'2.00 1,040.76 1,612.24 10L,49P.?4 107,775.?n 12 2,653.00 1,019.95 1,61?.05 102,P65.2P 105,5PP.77 13 2,653.00 994.13 1,693.P7 101,211.41 103,82?.74 14 2,653.00 478.?? 1,674.68 09,576.7? 102,040.21 15 2,653.00 957.50 1,6Q5.50 97,841.2? loo,2?P.1P 16 2,653.00 976.69 1,716.31 96,12L.92 QR,417.65 17 2,653.00 Q19.P7 1,7?7.1? 44,?P7.79 06,r-74.F2 1P 2,E53.00 805.06 1,757.Q4 92,62Q.44 94,721.09 19 2,653.00 P74.211 1,778.76 90,PF1.oP Q2,P45.06 20 2,653.nO 85?.L? 1,7Q9.58 89,051.1 90,950.54 21 2,653.00 832.61 1,82o.QC) P7,231.12 F0,077.51 22 2,653.00 ¢11.34 1,8111.?1 85,'89.01 P7,105.Q4 27 2,653.00 790.08 1,F62.02 87,5?7.P9 85,15-,.06 211 2,65?.00 770.16 1,P82.P4 81,645.05 83,1F7.L4 25 2,653.Oo 740.35 1,903.65 7Q,741.40 81,200.41 26 2,693.00 72P.57 1,924.47 77,816.94 79,194.F9 27 2,653.00 707.72 1,445.2P 75,P71.65 77,170,.87 2P 2,653.00 686.90 1,966.10 73,905.56 75,128.39 29 2,653.on 666.C9 1,Q46.01 71,918.64 73,067.?-~ 30 2,653.00 645.27 2,007.73 69,910.92 70,QR7.PO 31 2,653.00 F24.46 2,028.54 67,P82.?7 6P,P89.79 32 2,653.00 603.64 2,049.?6 65,83?.O1 66,773.27 33 2,653.00 582.P3 2,070.17 63,762.84 64,638.2; 34 2,653.00 562.01 2,090.94 F1,671.P5 62,484.7? 35 2,653.00 541.20 2,111.PO 54,560.05 6n,?12.71 36 2,653.00 520.38 2,132.62 57,427.4 58,1?2.20 37 2,653.00 499.57 2,15?.L3 55,274.00 55,913.16 38 2,653.00 478.75 2,174.?5 53,099.75 53,685.67 39 2,653.00 457.94 2,195.06 50,404.68 51,438.65 40 2,653.00 437.12 2,215.88 48,688.80 49,175.14 41 2,653.00 416.30 2,236.70 46,452.11 46,P92.12 42 2,653.00 395.49 2,257.51 44,194.59 44,590.61 43 2,653.00 374.67 2,278.33 41,916.27 42,270.60 44 2,653.00 353.P6 2,249.14 39,617.13 39,932.09 45 2,653.00 33.04 2,319.96 37,297.17 37,575.OF 46 2,653.00 112.23 2,340.77 34,956.40 35,199.57 47 2,653.00 291.41 2,361.59 32.594.81 32,405.56 48 2,653.00 270.60 2,382.40 30,212.41 30,393.05 49 2,653.00 249.78 2,403.22 27,PO9.19 27,962.04 50 2,653.00 228.97 2,424.03 25,385.16 25,512.54 51 2,653.00 208.15 2,444.P5 22,940.31 23,044.5? 52 2,653.00 187.34 2,465.66 20,474.65 20,558.02 53 2,653.00 166.52 2,486.48 17,9P8.17 18,053.02 54 2,653.00 145.71 2,507.29 15,480.88 15,529.51 55 2,653.00 124.P9 2,528.11 12,952.77 12,987.51 56 2,653.00 104.08 2,548.92 10,407.85 10,427.01 57 2,653.00 P~.26 2,56q.'t11 It,~1t11,11 It 11111p1,(lll 58 2,653.00 62.45 2,590.55 5,243.55 5,250.50 59 2,653.00 L1.63 2,611.?7 2,632.18 2,634.90 Nompro ADDENDUM III EQUIPMENT LEASE AGREEMENT 'The Lease is made this day of 19 between Colorado National Leasing, Inc., a Colorado corporation ("Lessor") , and the Town of Avon ("Lessee"). In consideration of the mutual covenants and promises herein set forth, the parties agree as follows: 1. LEASE. Lessor hereby leases to Lessee, and Lessee hereby leases and hires from Lessor, the property, machinery and equipment ("Equipment") described in the Equipment Description (Exhibit A attached hereto and made a part hereof). 2. TERM. This Lease shall commence on the date hereof and unless sooner terminated as provided herein, shall expire 3 year(s) from the date of first delivery of any item or the Equipment. 3. RENT. Rent for the Equipment shall be in the amount set forth in the Equipment Lease Schedule (Exhibit B attached hereto and made a part hereof). Lessee shall pay Lessor such rent in the amounts and at the times set forth on Exhibit B at the office of Lessor in Golden, Colorado, or to such other person and/or at such other place as Lessor may from time to time designate in writing. 4. USE. Lessee shall use the Equipment in a careful and proper manner and shall comply with all applicable governmental laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. If at any time during the term hereof Lessor supplies Lessee with labels, plates or other markings, stating that the Equipment is owned by Lessor, Lessee shall affix the same to a prominent place on the Equipment. 5. LESSEE'S INSPECTION; WARRANTY DISCLAIMER. (a) Lessee shall inspect the Equipment within forty-eight (48) hours after receipt thereof. Unless Lessee within such period of time gives written notice to Lessor, specifying any defect in or other proper objection to the Equipment, Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that Lessee has fully inspected and acknowledged that the Equipment is in good condition and repair, and that Lessee is satisfied with and has accepted the Equipment in such good condition and repair. At or prior to expiration of such inspection period, Lessee shall execute and deliver to Lessor the Certificate of Acceptance. Exhibit C attached hereto and made a part hereof). (b) Lessor hereby assigns to Lessee for and during the term of this Lease all manufacturer's warranties and guarantees, express or implied, with respect to the Equipment, to the extent such warranties and guarantees are assignable. Lessee acknowledges that it selected each item of Equipment based on its own analysis and investigation from vendors chosen by Lessee and further acknowledges that Lessor made no representations or warranties in connection with the Equipment or vendors. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE EQUIPMENT AND EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN, CONDITION OR WORKMANSHIP AND THE ENFORCEABILITY OF ANY WARRANTY OR GUARANTEE OF THE MANUFACTURER OF THE EQUIPMENT. -1- mmopwpo 6. LESSOR'S INSPECTION. Lessor shall at any and all times during business hours have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. 7. ALTERATIONS. Without the prior written consent of Lessor, Lessee shall not make any alterations, additions or improvements to the Equipment. 8. REPAIRS. Lessee, at its own cost and expense, shall keep the Equipment in good repair and condition and shall bear all expenses of the maintenance and operation of the Equipment. ' 9. INSURANCE; LOSS AND DAMAGE,; AGREED OPTION PRICE. Lessee shall keep the Equipment insured against all risks of loss or damage by fire and such other risks as are covered by endorsement commonly known as supplemental or extended coverage for the greater of the fair market value thereof or the "Agreed Option Price" set forth in Exhibit B attached hereto with respect to the Equipment. Lessee shall also carry public liability and property damage insurance covering the Equipment in amounts not less than $200,000 in respect of bodily injury or death to any person, not less than $500,000 in respect of any one accident, and not less than $100,000 in respect of property damage. All such liability insurance shall insure both Lessor and Lessee and all such property damage insurance shall name Lessor as loss payee as its interest may appear. Lessee may effect such coverages under its blanket policies. No loss or damage to the Equipment or any part thereof shall impair any obligation of the Lessee under this Lease which shall continue in full force and effect. In the event of loss or damage of any kind whatever to any item of Equipment, the proceeds of such insurance shall be applied to any item of Equipment: (a) To place the same in good repair, condition and working order, or replace the same with like Equipment in good repair, condition and working order; or (b) If, in the reasonable judgment of Lessor, the Equipment is determined,to be lost, stolen, destroyed or damaged beyond repair, Lessee shall pay Lessor therefor in cash, to the extent the insurance proceeds paid to Lessor may be insufficient, the Agreed Option Price set forth in Exhibit B determined as of the date of the last full rental payment made by Lessee, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Upon such payment this Lease shall terminate with respect to the Equipment so paid for and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS," WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 10. SURRENDER. Except as provided in paragraph 20 hereof, upon the expiration or earlier termination of this Lease, Lessee shall (unless Lessee has purchased the Equipment pursuant to paragraphs 9 or 19 hereof) return the same to Lessor in good repair, condition and working order,- ordinary wear and tear resulting from proper use thereof excepted, by delivering, at Lessee's sole cost and expense, possession of the Equipment to Lessor at such place as Lessor may designate. 11. 'T'AXES AND LIENS. (a) Lessee agrees to pay and to indemnify and hold -2- Lessor harmless from all license, sales, use, personal property or other taxes together with any penalties, fines or interest thereon imposed or levied with respect to the Equipment or the ownership, delivery, lease, possession, use, operation, sale or the disposition thereof, or upon the rentals or earnings arising therefrom. (b) Lessee shall not directly or indirectly create, incur, assume or suffer to exist any security interest, lien or encumbrance on or with respect to any item of Equipment or any interest therein. Lessee shall promptly, at its expense, take such action as may be necessary to discharge any such security interest, lien or encumbrance as and when the same shall arise. 12. LESSOR'S PAYMENT. In case of the failure of the Lessee to procure or maintain insurance on the Equipment, pay taxes on or with respect to the Equipment or maintain the Equipment free and clear of any security interests, liens and encumbrances, as herein specified, Lessor shall have the right, but not be obligated, to effect such insurance, to pay such taxes and discharge such security interest, liens and encumbrances and the cost thereof shall be repayable to Lessor with the next installment of rent. 13. DEFAULT. If the Lessee shall fail to pay the rent due and payable under Exhibit B attched hereto within ten (10) days after the same is due and payable, or if the Lessee shall fail to observe, keep or perform any other provision of this Lease for a period of ten (10) days after receipt of written notice thereof, Lessor shall have the right to exercise any one or more of the following remedies: (a) To terminate this Lease and to sue for and recover all rents and other payments then accrued and unpaid hereunder and all rents and other payments which will accrue during the then current fiscal year of Lessee. (b) To retain all rentals and to take possession of any or all items or Equipment, without further demand or notice and without any court order or other process of law, and either to remove the same or to lease the same to others. 14. 'T'ERMINATION FOR NON-APPROPRIATION. Notwithstanding anything herein to the contrary, if Lessee does not appropriate funds for any fiscal year of Lessee during the term hereof sufficient to pay the amounts due hereunder in such fiscal year and Lessee has exhausted all funds legally available for payments due under this Lease, Lessee may, by written notice given to Lessor no later than ten (10) days after adoption of the budget for such fiscal year, thereupon terminate this Lease. Upon such termination, Lessee shall return the Equipment to Lessor in accordance with paragraph 10 hereof and pay all rents and other payments due to Lessor for periods prior to the date the Equipment is so returned to Lessor. 15. ASSIGNMENT. Without the prior written consent of Lessor, Lessee shall neither assign, transfer, pledge or hypothecate this Lease, the Equipment or any part thereof, or any interest therein, nor sublet any item of Equipment. It is understood that Lessor contemplates assigning this Lease or interests in the Equipment and that Lessor's assignee may also assign the same. All rights of Lessor hereunder may be assigned, transferred, or otherwise disposed of, either in whole or in part, without notice to Lessee; provided, however that no assignment of this Lease or any interest therein shall be made except subject to the rights granted to the Lessee by virtue of this Lease; and provided further that no assignee of Lessor shall be -3- qWFF1P* obligated to perform any duty, covenant or condition required to be performed by Lessor under the terms of this Lease. 16. PERSONAL PROPERTY. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment may be affixed or attached to, or imbedded in, or permanently resting upon, real property or" any building thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise. 17. INDEMNITY; LIMITS OF LIABILITY. Lessee hereby assumes liability for and agrees to indemnify and hold Lessor harmless from and against any and all debts, liabilities, obligations, claims and expenses, including court costs and attorney's fees, incurred by or asserted against Lessor in connection with, arising out of or incident to the ownership, delivery, lease, possession, use, operation, condition, sale or other disposition of any item of Equipment. Lessor is not responsible for any repairs or service to the Equipment or any defects therein. Lessor shall not be liable for any consequential, incidental or special damages of any character as a result of or arising out of the lease of the Equipment, or any item thereof, including loss of profits, property damage or lost production, whether suffered by Lessee or any other person. 18. INTEREST. Should Lessee fail to pay any part of the rent herein reserved or any other sum required by Lessee to be paid to Lessor, within 10 days after the due date thereof, Lessee shall pay to the Lessor interest on such delinquent payment from the due date until paid at the rate of 18% per annum 19. OPTION. Provided Lessee is not in.default in the performance of its obligations hereunder, Lessee shall have the option, at any time after February 28, 1983 to purchase the Equipment for an amount equal to the Agreed Option Price thereof set forth in Exhibit B at the date of the last full rental payment, plus interest on such Agreed Option Price at the rate set forth in Exhibit B from the date of the last full rental payment until the date of payment for the Equipment. Such option to purchase the Equipment shall be exercised by the payment of the Agreed Option Price plus interest as herein provided to Lessor at Lessor's office in Golden, Colorado. If Lessee exercises the option to purchase the Equipment, title thereto shall thereupon become vested in Lessee and Lessor will thereupon execute and deliver to Lessee a bill of sale transferring such Equipment to Lessee "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 20. EXPIRATION. If Lessee shall comply with all provisions of this Lease on its part to be kept and performed, then upon the expiration of this Lease, all right, title and interest of Lessor in the Equipment subject to this Lease shall vest in and become the property of Lessee, and Lessor sale transferring such Equipment to Lessee, "AS-IS-WHERE-IS", WITHOUT WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER. 21. TAX EXEMPTION. The "Rent", "Interest", "Agreed Option Price" and other.computations set forth in this Lease and exhibits attached hereto have been fixed and computed upon the assumption that the amount designated as "Interest" will be exempt from federal income taxation and (if so noted on Exhibit B) state income taxation in the hands of the Lessor and its assignees. If it is determined that such -4- "Interest" payments are not so exempt, then the items of "Rent", "Interest", "Agreed Option Price" and related computations payable by the Lessee to Lessor hereunder shall be adjusted so as to provide Lessor with the amount of such items as shall equal, on an after tax basis, the amount thereof set forth in this Lease and Exhibits attached hereto. The method and timing of the payment of such adjustment shall be as mutually agreed upon promptly following notice to Lessee of the need for such adjustment. 22. FINANCIAL STATEMENTS. Lessee shall furnish to Lessor, within sixty (60) days after the end of each fiscal quarter of Lessee, financial statements of Lessee which shall include a balance sheet and statement of revenue and expense of Lessee for the quarter and the year to date and such other information and reports as Lessor shall reasonably request. All such financial statements shall be certified to be true and correct by the appropriate officer of Lessee. 23. CLAIMS. Lessor hereby appoints and constitutes Lessee as its agent and attorney-in-fact during the term of this Lease to assert and enforce, at the sole cost and expense of the Lessee, whatever claims and rights the Lessor may have as owner of the Equipment against any vendors, manufacturers, suppliers or contractors in respect thereof. 24. NON-WAIVER. No waiver of any of the Lessee's obligations under this Lease shall be deemed to take place unless such waiver has been made in writing and signed by. the Lessor. Failure to exercise any remedy which Lessor may have under this Lease or any other acquiescence by the Lessor in any default by the Lessee shall not constitute a waiver of any obligation of Lessee hereunder, including the obligation as to which Lessee is in default. 25. CONCURRENT REMEDIES. No right or remedy conferred upon or reserved to the Lessor in this Lease is exclusive of any other right or remedy provided or permitted herein by law or equity; but each shall be cumulative of any other right or remedy given hereunder, or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith, or from time to time. 26. MODIFICATION. This agreement between Lessor and amended, altered or modified the parties hereto. Lease constitutes the entire Lessee and shall not be except in a writing signed by 27. NOTICES. All notices required or permitted hereunder shall be sufficient if delivered personally or mailed to the parties at the address hereafter set forth or at such other address as either party may designate in writing from time to time. Any such notice shall be effective 48 hours after it has been deposited in the United States mail, duly addressed and with postage prepaid. 28. GOVERNING LAW. This Lease and other instruments or documents executed by the parties hereto, and the rights and duties of the parties hereto, shall be construed and enforced in accordance with the laws of the State of Colorado. 29. TIME. Time is of the essence of this Lease and each and all of its provisions. 30. SEVERABILITY. If any provision in this Lease or the application of such provision to any person or -5- IN WITNESS WHEREOF, the parties hereto have executed this Lease the day and year first above written. LESSOR: COLORADO NATIONAL LEASING, INC. By Bldg. 51, Suite 150 14142 Denver West Pkwy. Golden, CO 80401 LESSEE: By T ATTACHMENTS: Resolution No. of the j Equipment Description (Exhibit A) ,(Equipment Lease Schedule (Exhibit B) (Certificate of Acceptance (Exhibit C) i0pinion of Counsel -6- oil CERTIFICATE OF ACCEPTANCE The undersigned hereby certifies that it has received, inspected, approved and hereby accepts delivery of the following equipment upon the terms and conditions set forth herein and in-that Equipment Lease Agreement dated between the undersigned and Colorado National Leasing, Inc., a Colorado corporation: 1. Description of Equipment r 3 -,-198-3 E1Darado Falcon-Buses - 2. Cost: The cost of the equipment is $,-89,325 The undersigned further certified that the foregoing equipment is in good order and condition, and con- forms to the specifications applicable thereto. The execution of this Certificate will in no way relieve or decrease the responsibility of the manufacturer of the equipment for any warranties it has made with respect to the same. The undersigned hereby requests Colorado National Leasing, Inc. to process, payment in the amount of $ 89,325 to the vendor. Dated: TOWN OF AVON By Lessee ATTEST: W- NP ! 0 • EQUIPMENT LEASE SCHEDULE A. EQUIPMENT LEASED: 3 - ElDorado Falcon Buses: _ B. TERM: Unless sooner terminated as set forth in the Lease, the term of this Lease respecting each item of equipment listed on this schedule on shall commence on and shall expire on C. RENT: As rent for said equipment, Lessee shall pay Lessor the sum of 105c378.49 , payable in installments as follows: 36 monthly installments of $2,927.18 commencing on , which said installments of rental include interest at a rate of 11.7.5 per annum on the Agreed Option Price. D. LOCATION: The above described equipment shall be located at Town of Avon, Avon, Colorado and shall not be removed therefrom without the prior written consent of Lessor. APPROVED AND AGREED TO THIS DAY OF 19 as a schedule to that certain Lease dated the x day of , 19' COLORADO NATIONAL LEASING, INC. By LESSOR TOWN OF AVON By~ LESSEE PAYMENT NO. NITIAL BALANCE 2 3 4 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 E RENT PAYMENT EXHIBIT B EQUIPMENT LEASE SCHEDULE DESIGNATED REDUCTION OF INTEREST PRINCIPAL LEASE # 88203 BALANCE OF AGREED PRINCIPAL OPTION PRICE 89,325.00 92,898.00 2,927.18 867.76 2,059.42 87,265.58 90,645.44 2,927.18 843.65 2,083.53 85,182.05 88,374.14 2,927.18 819.55 2,107.63 83,074.41 86,084.10 2,927.18 795.44 2,131.74 80,942.68 83,775.33 2,927.18 771.34 2,155.84 78,786.84 81,447.81 2,927.18 747.23 2,179.95 76,606.89 79,101.55 2,927.18 723.13 2,204.05 74,402.84 76,736.56 2,927.18 699.03 2,228.15 72,174.68 74,352.82 2,927.18 674.92 2,252.26 69,922.43 71,950.34 2,927.18 650.82 2,276.36 67,646.06 69,529.13 2,927.18 626.71 2,300.47 65,345.59 67,089.18 2,927.18 602.61 2,324.57 63,021.02 64,630.48 2,927.18 578.50 2,348.68 60,672.35 62,153.05 2,927.18 554.40 2,372.78 58,299.57 59,656.88 2,927.18 530.30 2,396.88 55,902.68 57,141.96 2,927.18 506.19 2,420.99 53,481.69 54,608.31 2,927.18 482.09 2,445.09 51,036.60 52,,055.92 2,927.18 457.98 2,469.20 48,567.40 49,484.79 2,927.18 433.88 2,443.30 46,074.10 46,894.92 2,927.18 409.77 2,517.41 43,556.69 44,286.31 2,927.18 385.67 2,541.51 41,015.18 41,658.96 2,427.18 361.56 2,565.62 38,449.57 39,012.88 2,927.18 337.46 2,589.72 35,859.85 36,348.05 2,927.18 313.36 2,613.82 33,246.02 33,664.48 2,927.18 289.25 2,637.93 30,608.09 30,962.18 2,927.18 265.15 2,662.03 27,946.06 28,241.13 2,927.18 241.04 2,686.14 25,259.93 25,501.34 2,927.18 216.94 2,710.24 22,549.68 22,742.82 2,927.18 192.83 2,734.35 19,815.34 19,965.56 2,927.18 168.73 2.758.45 17,056.89 17,169.55 2,927.18 144.63 2,782.55 14,274.34 14,354.81 2,927.18 120.52 2,806.66 11,467.68 11,521.33 2,927.18 96.42 2,830.76 8,636.91 8,669.10 2,927.18 72.31 2,854.87 5,782.05 5,798.14 2,927.18 48.21 2,878.97 2,903.08 2,908.44 2,927.18 24.10 2,903.08 .00 .00 f SAMPLE OPINION OF COOEL Colorado National Leasing, Inc. 14142 Denver West Parkway Bldg. 51, Suite 150 Golden, Colorado 80401 e Re: Equipment Lease Agreement Gentlemen: We have acted as counsel to in connection with the execution and delivery of an Equipment Lease Agreement, including the Equipment Lease Schedules, Exhibits and Certificates attached thereto, dated , 198, between Colorado National Leasing, Inc., a Colorado cor- poration, and , pursuant to which has agreed to lease the equipment referred to in the Equipment Lease Agreement on the terms therein contained. In rendering this opinion, we have examined copies of the Equipment Lease Agreement, and the Equipment Lease Schedules as well as such other documents, records, certificates and legal matters as we have deemed relevant and necessary as a basis for our opinion hereinafter set forth. Based on the foregoing, it is our opinion that: 1. has all requisite power and authority to lease the property which is the subject of the Equipment Lease Agreement and has all requisite power and authority to enter into such Equipment Lease Agreement, each Equipment Lease Schedule and the Certificate of Acceptance attached thereto. 2. The Equipment Lease Agreement and each Equipment Lease Schedule has been duly authorized, executed and delivered by and constitute the legal, valid and binding obligations of , enforceable against terms. in accordance with their respective 3. The execution, delivery and performance by of the Equipment Lease Agreement, each Equipment Lease Schedule and the Certificate of Acceptance will not violate or contravene any provision of the existing Colorado or federal law or any order of any court or governmental agency having jurisdiction, the Charter, or any mortgage, indenture, security agreement or other instrument to which is a party or by which it, or any of its pro- perty, is bound. Very truly yours, PLEDGE AGREEMENT THIS AGREEMENT is entered into this 21st day of December , 198 2 between the TOWN OF AVON ("the Town") and ARROYO COMPANY ("Contributor"). WHEREAS, provision of bus service to and from the Beaver Creek Ski Area is essential to the welfare of the Town of Avon; and WHEREAS, Contributor and other condominium owners associations have offered to contribute $2.00 per occupied room per night to the Town to induce the Town to provide free bus service; and WHEREAS, the Town will enter into a lease agreement for the purpose of acquisition of three twenty-five passenger busses to provide such bus service; NOW, THEREFORE, IT IS AGREED as follows: 1. Contributor pledges to contribute to the Town of Avon an amount equal to $2.00 per occupied room, per night, as an inducement to the Town to provide free,bus service, provided, the amount of Contributor's contribution shall be the minimum total amount of $14,000.00. 2. Town agrees to acquire and maintain three twenty-five passenger busses for the purpose of providing free bus service from points within the Town of Avon to the Beaver Creek Ski Area. Timing, routing, hours of service and points of pickup shall be at the discretion of the Town after consultion with Contributor. 3. It is understood that Contributor's contribution in paragraph 1 above shall be a minimum one and shall not decrease because of any additional contributions. 4. Any excess of cost of providing bus service over contributions shall be paid by the Town to the extent of one-eighth of the Town's sales tax revenues for 1983, or $80,000.00, which ever sum is greater. In the event the contributions of Contributor and other condominium associations, together with sales tax revenues, are insufficient to pay the cost of acquisition of the busses, Contributor shall reimburse the Town an additional sum in the amount of the cost of acquisition of one bus but not to exceed the amount of the deficiency. "Cost of acquisition," for the purpose of this Agreement means lease payments payable by the Town. 5. This Agreement and~he obligation of the Town shall continue in effect from l~I.ec_ , , 1982, until December 31, 1983, unless sooner terminated upon ten days written noltice. ATTEEN T: TOWN OF AVON r~ B Town Clerk Mayor ATTEST: ontrizutor a, . e //.v By Secretary PLEDGE AGREEMENT THIS AGREEMENT is entered into this 21st day of December 1982 between the TOWN OF AVON ("the Town") and WESTERN STATES MANAGEMENT COMPANY ("Contributor"). WHEREAS, provision of bus service to and from the Beaver Creek Ski Area is essential to the welfare of the Town of Avon; and WHEREAS, Contributor and other condominium owners associations have offered to contribute $2.00 per occupied room per night to the Town to induce the Town to provide,.. free bus service; and WHEREAS, the Town will enter into a lease agreement for the purpose of acquisition of three twenty-five passenger busses to provide such bus service; NOW, THEREFORE, IT IS AGREED as follows: 1. Contributor pledges to contribute to the Town of Avon an amount equal to $2.00 per occupied room, per night, as an inducement to the Town to provide free bus service, provided, the amount of Contributor's contribution shall be the minimum total amount of $22,000.00. 2. Town agrees to acquire and maintain three twenty-five passenger busses for the purpose of providing free bus service from points within the Town of Avon to the Beaver Creek Ski Area. Timing, routing, hours of service and points of pickup shall be at the discretion of the Town after consultion with Contributor. 3. It is understood that Contributor's contribution in paragraph 1 above shall be a minimum one and shall not decrease because of any additional contributions. 4. Any excess of cost of providing bus service over contributions shall be paid by the Town to the extent of one-eighth of the Town's sales tax revenues for 1983 or $80,000.00, whichever sum is greater. In the event the contributions of Contributor and other condominium associations, together with sales tax revenues, are insufficient to pay the cost of acquisition of the busses, Contributor shall reimburse the Town an additional sum in the amount of the cost of acquisition of one bus but not to exceed the amount of the deficiency. "Cost of acquisition," for the purpose of this Agreement means lease payments payable by the Town. 5. This Agreement an the obligation of the Town shall continue in effect from A:J_ac- / , 1982, until December 31, 1983, unless sooner terminated upon ten days written notice. -TTE~T v Town Clerk ATTE T: J,e~ et ry TOWN OF AVON B ~ Mayo w i STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING-BEFORE THE-TOWN COUNCIL OF THE TOWN OF'-AVON, COLORADO, AT 12:00 NOON ON THE 21ST DAY OF DECEMBER, 1982 AT THE MUNICIPAL-BUILDING, 400 BENCHMARK ROAD, AVON, COLORADO FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE 90.#82-28, SERIES OF 1982: AN ORDINANCE AUTHORIZING EXECUTION OF--CERTAIN EQUIPMENT LEASE AGREEMENTS A copy of said Ordinance is attached hereto and is also on file at the office of the Town Clerk-and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of the Ordinance. This notice given and passed by order of the Town Council of the Town of Avon; Colorado. Dated this 14th day of December, 1982. TOWN OF AVON, COLO atricia J. porle, Town (lie POSTED-AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON THE 14TH OF DECEMBER, 1982: THE MAIN ENTRANCE OF THE POST OFFICE, THE MAIN ENTRANCE TO CITY MARKET, THE PESTER GAS STATION; AND THE MAIN LOBBY OF THE MUNICIPAL BUILDING Li • I co