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TC Ord. No. 1990-19® i ORDINANCE NO 90- 19 AN ORDINANCE AUTHORIZING THE ISSUANCE OF THE TOWN OF AVON, COLORADO GRANT ANTICIPATION NOTE, SERIES 1991, IN A PRINCIPAL AMOUNT NOT TO EXCEED $2,000,000; PROVIDING DETAILS CONCERNING THE NOTE, ITS FORM, SALE AND FUNDS RELATING THERETO; PROVIDING FOR THE REPAYMENT OF THE NOTE; AND PROVIDING ALL OTHER DETAILS RELATING THERETO. WHEREAS, the Town of Avon, Colorado (the "Town") is a municipal corporation duly organized and existing under the laws of the State of Colorado, particularly the provisions of Article XX of the Constitution of the State of Colorado and the Town's Home Rule Charter (the "Charter"); and WHEREAS, Section 14.1 of the Charter provides that the Town may borrow money for any municipal purpose as provided therein and issue short-term notes to evidence such indebtedness; and WHEREAS, Section 14.2 of the Charter provides: Section 14.2 Short-Term Notes. The Town, upon the affirmative vote of the majority of the entire Council in office at the time the vote is taken, is hereby authorized to borrow money without an election in anticipation of the collection of taxes or other revenues and to issue short-term notes to evidence the amount so borrowed. Any such short-term notes shall mature before the close of the fiscal year in which the money is so borrowed except as is permitted in the provision of this Charter pertaining to Emergency Appropriations. ; and WHEREAS, in coordination with the State Department of Highways, the Town has agreed to construct a railroad grade separation and a bridge on Avon Road (State Highway 70) between Interstate 70 and U.S. Highway 6 within the Town (the "Project"); and WHEREAS, the State has agreed to provide funding for the Project in the amount of $3.4 million dollars, to be paid from Highway Users Tax Fund revenues (the "Grant"); and WHEREAS, the Town has begun construction of the Project and has budgeted funds to pay its portion of the expenses of the Project as they occur; and WHEREAS, the Town has determined that it will not receive the Grant on a timely basis to pay the costs and expenses of the Project and expects to incur a cash flow deficit until such Grant is received; and WHEREAS, the Town anticipates receiving revenues from the Grant during the Current Fiscal Year (defined herein) which have not been received or credited to date; and WHEREAS, the Town is authorized pursuant to the Charter to issue short- term notes without an election in anticipation of the collection of taxes or other revenues; and -2- 0 i WHEREAS, the Council has determined, and hereby determines, that it is necessary and in the best interests of the Town that the Town issue its Note for the purpose of paying the costs and expenses of the Project; and WHEREAS, the principal amount of the Note will not exceed the amount of $2,000,000 to be received by the Town from the State in the Current Fiscal Year, as shown in the Town's current budget; and WHEREAS, the proceeds of the Note shall be applied to the payment of duly incurred costs and expenses of the Project; and WHEREAS, the Note shall be paid from the proceeds of the Grant or investment proceeds thereon, anticipated to accrue during the Town's Current Fiscal Year, from other available funds of the Town or from any unspent proceeds of the Town's Note as hereinafter provided. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Definitions. The terms defined in this section shall have the designated meanings for all purposes of this ordinance and of any amendatory or supplemental ordinance, except where the context by clear implication requires otherwise. "Bank" means FirstBank of Avon, Avon, Colorado. "Borrowing" means an advance under the Note made by the Bank to the Town pursuant to Section 5 hereof. "Council" means the Town Council of the Town. "Current Fiscal Year" means the fiscal year of the Town commencing January 1, 1991 and ending December 31, 1991. "Grant Collection Account" means the special account within the Town's General Fund created pursuant to Section 9 of this Ordinance. "Maturity Date" means December 31, 1991. "Note" means the Town's Grant Anticipation Note, Series 1991, issued pursuant to this Ordinance. "State" means the state of Colorado. Section 2. Ratification. All action (not inconsistent with the provisions of this ordinance) heretofore taken by the Council and the officers of the Town, directed toward the issuance and sale of the Note for the purposes stated in the recitals, be, and the s7me hereby are, ratified, approved and confirmed. Section 3. Note Authorization and Details. To provide funds with which to pay in a timely manner the costs and expenses incurred by the Town in the construction of the Project for the Current Fiscal Year, the Council hereby authorizes the issuance by the Town, pursuant to the Charter, of its Grant Anticipation Note, Series 1991 in an aggregate principal amount not to exceed $2,000,000. The Note shall be dated the date of its original delivery (but in no event earlier than January 1, 1991) and shall mature on the Maturity Date. The Note shall bear interest on the unpaid principal amount thereof payable on the First day of each month, beginning on the first day of the month following the initial -3- Borrowing, unless prepaid as otherwise provided herein. Interest on the Note shall accrue on the principal portion of each Borrowing, beginning on the date of such Borrowing, at the rate of 9.34% per annum. Interest shall be computed on the basis of a 360-day year consisting of twelve 30-day months. The Note shall be subject to redemption prior to maturity, in whole or in part, at a redemption price equal to the principal amount of the Note redeemed, plus accrued interest to the redemption date on any day the Bank is open for business. In the event of any redemption in part of the principal amount of the Note, such redemption shall be deemed to be a prepayment of each Borrowing made under the Note on a prorata basis, and the interest due on such redemption date shall be equal to the accrued sum of the interest due on each prorata portion of each such Borrowing deemed prepaid. If the Note shall not be paid upon presentation at or after maturity, the Note shall thereafter continue to accrue interest at the same rate per annum until the principal thereof is paid in full. All payments shall be made in lawful money of the United States of America. Section 4. Bank Acceptance. The Note shall evidence the Town's obligation to repay the loan made from time to time by the Bank to the Town. By execution of the Bank acceptance and its delivery to the Town in substantially the form attached to this Ordinance, the Bank agrees, on the terms and conditions contained in this Ordinance, to extend credit to the Town by permitting Borrowings from time to time during the period January 1, 1991 to and including December 30, 1991 in amounts not to exceed the aggregate principal amount of $2,000,000, which Borrowings shall be evidenced by the Note. The loan made by the Bank hereunder shall not be a revolving credit, and upon payment or prepayment of all or any part of the unpaid principal balance of the Note, the Town shall not be entitled to reinstatement of the loan commitment in the amount of such payment or prepayment. Section 5. Deleyation of Authority to Borrow; Terms of Borrowing. The Town Manager is hereby authorized to borrow funds in such principal amounts, not to exceed $2,000,000 under the Note, as he shall determine from time to time to be necessary to pay the costs of the Project. The Town shall give the Bank at least two business days' notice of each Borrowing hereunder, specifying the date (which shall be a business day) and aggregate principal amount of such Borrowing and the interest rate payable on the Note evidencing such Borrowing. Not later than 10:00 a.m., local time, on the date so specified, the Bank will make such funds available to the Town by crediting the proceeds of such funds to such deposit account of the T-)wn as the Town may designate from time to time. The Bank is hereby authorized and directed by the Town to endorse on the grid on the reverse side of the Note an appropriate notation evidencing the date and amount of each such Borrowing, the date and amount of each payment or prepayment of principal thereon, and the other information provided thereon; provided that neither the failure of the Bank so to endorse such grid nor any error in endorsement shall expand, limit or affect the obligations of the Town hereunder or under the Note. Section 6. Nature of Obligations. The Note shall be payable solely from the receipt of the Grant from the State received by the Town after the date of issuance of -4- ® • the Note, or from other available funds of the Town. The Note does not constitute a debt or indebtedness of the Town within the meaning of any applicable provision of the Charter or the Constitution or laws of the State of.Colorado. Section 7. Execution of Note. The Note shall be executed by the Mayor and shall be attested by the Town Clerk. Such signatures may be either manual or by facsimile. There shall be affixed on the Note an impression of the seal of the Town or a facsimile thereof. The Note bearing the manual or facsimile signatures of the officers in office at the time of the authorization thereof shall be a valid and binding obligation of the Town, notwithstanding that before the delivery thereof and payment therefor, any or all of the persons whose manual or facsimile signatures appear thereon shall have ceased to fill their respective offices. The Mayor and the Town Clerk, by the execution of a signature certificate pertaining to the Note, each may adopt as and for his or her own signature the signature of his or her predecessor in office in the event that such signature appears upon the Note or certificates pertaining thereto. Section 8. Form of Note. The Note shall be in substantially the following form (provided that any of the text may, with appropriate reference, be printed on the back of the Note) and may be printed, typewritten, or otherwise reproduced: -5- 0 i (Form of Note) UNITED STATES OF AMERICA STATE OF COLORADO COUNTY OF EAGLE TOWN OF AVON GRANT ANTICIPATION NOTE SERIES 1991 Date of Original Delivery January 1 , 1991 THE TOWN OF AVON (the "Town") in the County of Eagle and the State of Colorado (the "State"), created and existing by virtue of its Home Rule Charter and the Constitution and laws of the State, for value received hereby promises to pay, solely from the sources hereinbelow provided, to the order of First Bank of Avon (the 'Bank"), 0011 W. Beaver Creek Blvd., Avon, Colorado, the principal sum of $2,000,000, or, if less, the aggregate unpaid principal amount of all outstanding Borrowings advanced by the Bank to the Town pursuant to the below-described Ordinance, on December 31, 1991, and to pay interest, from such sources, on the unpaid principal amount hereof from time to time outstanding at said office from the date of each borrowing hereunder on the first day of each month, beginning on the first day of the month following the initial borrowing hereunder at a rate equal to 9.34% per annum calculated on the basis of a 360 day year consisting of twelve 30-day months as specified in Section 4 of the Grant Anticipation Note Ordinance (the "Ordinance") adopted on December 11, 1990 by the Town Council of the Town (the "Council") or until such principal amount and interest accrued thereon is paid in full. All payments of principal and interest shall be made in lawful money of the United States of America. This Note is subject to prepayment at any time as more fully described in the Ordinance. Terms defined in the Ordinance referred to herein are used herein as therein defined. The Bank is authorized and directed by the Town to endorse on the grid attached hereto which is part of this Note the date and amount of all Borrowings advanced by the Bank to the Town pursuant to the Ordinance, and the date and amount of any payments or prepayments of the principal hereof and the other information provided for thereon; provided that neither the failure of the Bank to so endorse on such grid or any error in endorsement shall expand, limit or affect the obligations of the Town hereunder. This Note is the Note referred to in the Ordinance, authorized and issued pursuant to Chapter XIV of the Home Rule Charter of the Town (the "Charter") for the -6- purpose of paying on a timely basis current expenses of the Project (as defined in the Ordinance). The Town has established within its General Fund a special account to be known as the "Grant Anticipation Note Principal and Interest Redemption Fund" (the "Grant Collections Account") which is segregated from all other moneys and accounts and is exclusively and irrevocably pledged to the payment of the principal of and interest on this Note. The Town has covenanted to deposit to the Grant Collections Account, until such time as the amount on deposit in the Grant Collections Account is sufficient to pay when due the principal of and interest on this Note, all Grant moneys received from the State after the date of issuance of this Note, income on amounts held to the credit of the Grant Collections Account, and proceeds of this Note to the extent not required to pay current Project expenses. This Note does not constitute a debt or indebtedness of the Town within the meaning of any provision of the Charter or the Constitution or laws of the State of Colorado. For a further description of the funds designated for the payment of the principal of and interest on this Note and the Town's obligations with respect thereto, reference is made to the Charter and the Ordinance. It is hereby certified, recited and warranted that all the requirements of law have been fully complied with by the proper officers of the Town in the issuance of this Note and that it is issued pursuant to and in strict conformity with the Charter and the Constitution and laws of the State of Colorado. IN WITNESS WHEREOF, the Town of Avon, County of Eagle, Colorado, has caused this Note to be signed and executed on behalf of the Town by the manual or facsimile signature of the Mayor of the Town and to be attested by the manual or facsimile signature of the Town Clerk, and has caused a manual or facsimile impression of the seal of the Town to be affixed hereto, all as of the Date of Original Delivery. [Manual or Facsimile Signature] Mayor (SEAL) Attest: [Manual or Facsimile Signature] Town Clerk -7- 0 BORROWINGS AND PAYMENTS OF PRINCIPAL Amount of Principal Unpaid Amount of Paid or Principal Notation Date Borrowing Prepaid Balance Made By [END OF FORM OF NOTE] -8- • • Section 9. Grant Collections Account. There is hereby established a special account within the General Fund of the Town to be designated as the "Grant Anticipation Note Principal and Interest Redemption Fund" (the "Grant Collections Account"). The Grant Collections Account shall be segregated from all other moneys or accounts and be and hereby is exclusively and irrevocably pledged to the payment of the principal of and interest on the Note. Moneys held in the Grant Collections Account are not available for the payment of other Town expenditures until the Note is paid in full, except to the extent proceeds of the Note are deposited therein such proceeds may be withdrawn to pay current Project expenses. After the delivery of the Note, the Town covenants to deposit to the credit of the Grant Collections Account, until such time as the amount on deposit in the Grant Collections Account is sufficient to pay when due the principal of and interest on the Note, the following: (i) upon receipt, all Grant moneys received from the State for payment of the expenses of the Project, (ii) income on amounts held to the credit of the Grant Collections Account, and (iii) proceeds of the Note to the extent not required to pay current Project costs and expenses. Amounts on deposit to the credit of the Grant Collections Account may be invested by the Town in any securities or obligations eligible for investment of Town funds. Such investments shall be deemed at all times to be part of the Grant Collections Account, but may from time to time be sold or otherwise converted into cash, whereupon the proceeds derived from such sale or conversion shall be credited to the Grant Collections Account. Any interest accruing on and any profit realized from such investment shall be credited to the Grant Collections Account. The Town shall verify the amount on hand in the Grant Collections Account and the place and manner of investments of said account within five days of receipt of a written request from the Bank requesting such information. Section 10. Covenants of Town. (a) The proceeds of the Note shall be deposited into the Town's General Fund and applied to the payment of the costs of the Project. (b) The Town hereby covenants for the benefit of the Bank as follows: (1) As a condition of the initial Borrowing, the Town will pay the Bank a fee of $20,000. (2) The Town shall expend the Note proceeds only to pay costs and expenses of the Project. (3) The Town shall not modify its budget or appropriation measures in effect at the time of the first Borrowing by the Town, nor engage in any funds transfers or interfund borrowing, in such a manner as to adversely affect the security of or payment for the Note. (4) The Town shall promptly take any budget or appropriation action which may be necessary to effectuate payment of the principal of and interest on the Note. (5) During the period of time when the Note is outstanding, the Town shall not issue any other indebtedness which has a final maturity prior to the end of the Current Fiscal Year and which is issued in anticipation of the Grant moneys; provided, -9- however, that the Tool may, without violating this provisiafi, issue other indebtedness in anticipation of grant moneys budgeted for the then Current Fiscal Year which is junior and subordinate in right of payment to, and which has a maturity date after the Maturity Date of the outstanding Note. (6) If the Note remains outstanding after December 31, 1991, the Town shall, in accordance with and to the extent permitted by applicable law, obtain funds from any and all other legally available sources to provide funds to retire the Note as soon as reasonably possible. Section 11. Delegation to Officers. The officers of the Town be, and they hereby are, authorized and directed to take all action necessary or appropriate to effectuate the provisions of this ordinance, including without limiting the generality of the foregoing, the original or additional printing of the Note as may be convenient, the execution of such certificates as may be required by counsel relating to the execution of the Note, the tenure and identity of the Town officials, the assessed valuation and indebtedness of the Town, and the absence of litigation, pending or threatened, if in accordance with the facts, affecting the validity thereof and the execution of ancillary documents related to the issuance of the Note. Section 12. Contract with Bank. After the Note has been issued, this ordinance shall constitute a contract between the Town and the Bank and shall be and remain irrepealable and unalterable until the Note and the interest thereon shall have been fully paid, satisfied and discharged. Section 13. Repealer. All ordinances or parts thereof inconsistent herewith are hereby repealed to the extent of such inconsistency. This repealer shall not be construed to revive any ordinance or part thereof heretofore repealed. Section 14. Severability. If any section, paragraph, clause or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this Ordinance. Section 15. Notice of Hearing. The Council will hold a public hearing on the ordinance at a meeting of the Council held at the Town Hall, within the Town, on December 11, 1990, being not earlier than seven days after first publication of the ordinance, at the hour of 7:30 p.m. Section 16. Effective Date. This Ordinance shall be in full force and effect seven (7) days after publication by posting following final passage, adoption and approval. PASSED, ADOPTED AND APPROVED ON FIRST READING ON November 27, 1990. .Y PASSED, ADOPTED AND ED ON December 11, 1990. -10- ® • The adoption of the foregoing ordinance was duly moved and seconded. The question being the adoption of the ordinance, the members of the Council voted as follows: Those Voting Yes: David Garton Alb r Reynnl dg Mike Bennett Gloria MnRnry Jim Stovall Tom. Ptarh Those Voting No: None Those Absent: None Thereupon the Mayor declared the motion carried and the ordinance adopted, and the Town Clerk was directed to publish the Ordinance by posting in full in the following four places within the Town: (1) The office of the Town Clerk (2) Coastal Mart (3) 2,.vc,ri F1_; JZ~ 0-C -L lAce (4) City Market. After consideration of other unrelated matters, the meeting was adjourned. Mayor -11- ® • STATE OF COLORADO ) COUNTY OF EAGLE ) SS. TOWN OF AVON ) I, Patricia J. Doyle, Town Clerk of the Town of Avon (the "Town"), in the County of Eagle and State of Colorado, do hereby certify that the foregoing pages numbered 1 through 11, inclusive, constitute a true, correct and complete copy of the record of the proceedings taken by the Town Council of the Town, insofar as said minutes relate to Ordinance No. 90- 19 , authorizing the Town's Grant Anticipation Note, Series 1991, which ordinance was adopted on second reading on December 11, 1990, and said copy of said ordinance as contained in said minutes is a full, true and correct copy of the original ordinance as recorded in the regular official records of the Town kept in my office; that said proceedings were duly had and taken; that said meeting was duly held upon due notification of the members of the Council; and the persons therein named were present and voted at said meeting, all as therein shown. WITNESS my hand and the seal of the Town this llthday of nP(,Pmh,, 1990. ° 3 OF . ' . -12-