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TC Ord. No. 1994-08 Authorizing execution of certain equipment lease agreementCOLORADO; ORDINANCE NO. 94 - 8 TOWN OF AVON SERIES OF 1994 AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON Section 1. That certain Equipment Lease Agreement, together with Exhibits, is attached hereto as Addendum I, and the terms of this agreement are hereby approved and hereby authorized. Section 2. The Mayor and Town Clerk are hereby authorized and directed to execute said Equipment Lease Agreement. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 22ndday of February , 1994, 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 8th day of March , 1994, at 7:30 pm in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO Albert J. R no Mayor TTEST: Pa ty Neyh rt, wn Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 8th day of ATTEST: Patty Ne art Town Clerk APPROVED AS TO FORM: Jo Dunn, Town Attorney March . 1994. TOWN OF AVON, COLORADO d' A Albert J. R ldg , —mayor 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 7:30 P.M. ON THE 8TH DAY OF MARCH, 1994, AT THE TOWN MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 94 -8, SERIES OF 1994: AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT 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 this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 23rd day of February, 1994. TOWN OF AVON, COLORADO BY. Patty Neyha t Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON FEBRUARY 23, 1994; AVON POST OFFICE IN THE MAIN LOBBY CITY MARKET IN THE MAIN LOBBY COASTAL MART, INC.; AND AVON MUNICIPAL BUILDING IN THE MAIN LOBBY EQUIPMENT LEASE AGREEMENT This equipment Lease (the "Lease ") dated as of April 8, 1994, by and between Zions First National Bank ( "Lessor ") and between the Town of Avon, Colorado ( "Lessee "), a body corporate and politic existing under the laws of the State of Colorado; NOW THEREFORE, for and in consideration of the mutual promises, covenants and agreements hereinafter set forth, the parties hereto agree as follows: ARTICLE I LEASE OF EQUIPMENT Section 1.1 Agreement to Lease. Lessor hereby demises, leases and lets to Lessee and Lessee rents, leases and hires from Lessor, the Equipment to have and to hold for the term of this Lease. Section 1.2 Title. During the term of this Lease, title to the Equipment will be in the name of Lessor. Upon termination of this Lease as provided in Sections 3.3(b) or 3.3(d), title to the Equipment will transfer automatically to Lessee without the need for any further action on the part of Lessor, Lessee or any other person, provided that if any action is so required, Lessor by this Lease appoints Lessee its irrevocable attorney in fact to take any action to so transfer title to the Equipment to Lessee. Lessor at all times will have access to the Equipment for the purpose of inspection, alteration and repair. Section 1.3 Security. To secure the payment of all of Lessee's obligations to Lessor under this Lease, Lessee grants to Lessor a security interest in the Equipment and in all additions, attachments, accessions and substitutions to or for the Equipment. the security interest granted herein includes proceeds. Lessee agrees to execute such additional documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems necessary or advisable to establish and maintain its security interest in the Equipment. Lessor understands and agrees that the security interest granted in this Section shall be subject and subordinate to presently existing security interest and /or purchase money security interest in miscellaneous equipment which may be installed in accordance with the provisions of Section 9.3. ARTICLE II DEFINITIONS The terms defined in this Article II shall, for purposes of this Lease, have the meaning herein specified unless the context clearly otherwise requires: "Commencement Date" shall mean the date when the term of this Lease begins and Lessee's obligation to pay rent accrues, as set forth in Section 3.1. "Equipment" shall mean the property which Lessor is leasing to Lessee referred to in Section 1.1 and more fully described in Exhibit A. "Lessee" shall mean the Town of Avon, Colorado. "Lessor" shall mean Zions First National Bank, its successors and assigns. "Option Purchase Price" shall mean the amount which Lessee must pay Lessor to purchase the Equipment, as determined by Article V. "Original Term" shall mean the period from the Commencement Date until the end of the fiscal year of Lessee in effect at the Commencement Date, as set forth in Section 3.2. "Renewal Terms" shall mean all of the additional periods of one year (coextensive with Lessee's fiscal year) for which this Lease shall be effective in the absence of a termination of the Lease as provided in Article III. "Rental Payments" means the rental payments payable by Lessee pursuant to the provisions of this Lease during the Term hereof. "Term" or "Term of this Lease" shall mean the period provided for in this Lease under Section 3.2. "Vendor" shall mean the manufacturer of the Equipment and the manufacturer's agent or dealer from whom Lessor purchased or is purchasing the Equipment. ARTICLE III LEASE TERM Section 3.1 Commencement. The Term of this Lease shall commence as of: 0 the date this Lease is executed. 0 days after the receipt, installation and operation of the Equipment, and its acceptance by Lessee as indicated by an acceptance certificate signed by Lessee. O the date the Vendor receives full payment for the Equipment from Lessor. 0 April 8, 1994 Such date will be referred to as the Commencement Date. Section 3.2 Duration of Lease: Non - appropriation. This Lease will continue until April 1, 1999, unless this Lease is terminated as hereinafter provided. The parties understand that it is the intent of Lessee that as long as Lessee has sufficient appropriated funds to make the Rental Payments hereunder, Lessee will keep this Lease in effect through all Renewal Terms and make all payments required herein or Lessee will exercise its option under Article V to purchase the Equipment, subject to Lessee's right to terminate as herein provided. Lessee reasonably believes that it will have a need for the Equipment for the -2- duration of the Original Term and all Renewal Terms. If Lessee does not appropriate funds to continue the leasing of the Equipment for any ensuing Renewal Term, this Lease will terminate upon the expiration of the Original or Renewal Term then in effect and Lessee shall notify Lessor of such termination at least ten (10) days prior to the expiration of the Original or Renewal Term then in effect; provided, however, that a failure to give such written notice shall not constitute an event of default, result in any liability on the part of the Lessee or otherwise affect the termination of this Lease as set forth hereinabove. Section 3.3 Termination. This Lease will terminate upon the earliest of any of the following events: (a) the expiration of the Original Term or any Renewal Term of this Lease and the failure of Lessee to appropriate funds to continue the leasing of the Equipment for the ensuing Renewal Term; (b) the exercise by Lessee of any option to purchase granted in this Lease by which Lessee purchases all of the Equipment; (c) a default by Lessee and Lessor's election to terminate this Lease under Article VII herein; or (d) the expiration of the Term of this Lease. Section 3.4 Return of Equipment Upon Termination. Upon termination of this Lease pursuant to Sections 3.3(a) or 3.3(c), Lessee shall return the Equipment to Lessor in the condition, repair, appearance and working order required in Section 9.2 hereof in the following manner as may be specified by Lessor: (a) By delivering the Equipment to Lessor at Lessee's principal place of business; or (b) By loading the Equipment at Lessee's cost and expense, on board such carrier as Lessor shall specify and shipping the same, freight prepaid, to the destination designated by Lessor. Lessee shall obtain all governmental authorizations to permit return of the Equipment to Lessor and Lessee shall pay to Lessor such sum as may be necessary to cover replacement of all broken or missing parts. Section 3.5 Non - Substitution. To the extent permitted by law, Lessee agrees that, following nonappropriation of funds hereunder, Lessee will not purchase, lease or rent equipment performing function similar to those performed through the use of the Equipment, or to obtain from any source the service or information which the Equipment was to perform or provide for the balance of all renewal terms available hereunder. - 3 - ARTICLE IV RENTAL PAYMENTS Section 4.1 Amount. Lessee will pay Lessor as rent for the use of the Equipment during the Original Term and any Renewal Terms on the dates and in the amounts set forth in Exhibit C attached hereto. All Rental Payments shall be paid, exclusively from legally available funds, in lawful money of the United States of America to Lessor or to such other person or entity or at such other place, as Lessor may from time to time designate by written notice to Lessee. Section 4.2 Portion of Rental Payments Attributable to Interest. The portion of each Rental Payment which is paid as and is representative of interest is set forth in Exhibit C attached hereto. Section 4.3 No Right to Withhold. Notwithstanding any dispute between Lessee, Lessor, Vendor or any other party, Lessee will make all Rental Payments when due, without withholding any portion of such rent, pending final resolution of such dispute by mutual agreement between the parties thereto or by a court of competent jurisdiction. Section 4.4 Rental Payments to Constitute a Current Obligation of the Lessee. The Lessee and the lessor acknowledge and agree that the obligation of the Lessee to pay Rental Payments hereunder constitutes a current obligation of the Lessee payable exclusively from current and legally available funds and shall not in any way be construed to be an indebtedness of the Lessee within the meaning of any provision of any constitutional or statutory limitation or requirement applicable to the Lessee concerning the creation of indebtedness. The Lessee has not hereby pledged the credit of the Lessee to the payment of the Rental Payments, or the interest thereon, nor shall this Lease obligate the Lessee to apply money from the Rental Payments or any interest thereon. ARTICLE V PURCHASE OF EQUIPMENT Section 5.1 Option Purchase Price. Lessee may purchase the Equipment from Lessor at any time at a price equal to the Option Purchase Price as set forth in Exhibit C. Section 5.2 Manner of Exercise of Option. To exercise the option, Lessee must deliver to Lessor written notice specifying the date on which the Equipment is to be purchased (the "Closing Date "), which notice must be delivered to Lessor at least thirty (30) days prior to the Closing Date specified therein. At the closing, Lessor will deliver to Lessee a bill of sale transferring the Equipment to Lessee free and clear of any lien or encumbrance created by or arising through Lessor, but without warranties, and will deliver all warranties and guarantees of vendors of the Equipment. -4- Section 5.3 Conditions of Exercise of Option. Lessee may purchase the Equipment pursuant to the option granted by this Lease only if Lessee has made all Rent Payments when due (or has remedied any defaults in the payment of rent, in accordance with the provisions of this Lease) and if all other representations, covenants, warranties and obligations of Lessee under this Lease have been satisfied (or all breaches of the same have been waived by Lessor in writing). Section 5.4 Termination Purchase. Upon the expiration of the Term of the Lease and provided that the conditions of Section 5.3 have been satisfied, Lessee shall be deemed to have purchased the Equipment (without the payment of additional sums) and shall be vested with all rights and title to the Equipment. Lessor agrees that upon the occurrence of the events as provided in this Section, it shall deliver to Lessee the documents specified in Section 5.2. ARTICLE VI REPRESENTATIONS, COVENANTS AND WARRANTIES OF LESSEE AND LESSOR Section 6.1 Representations, Covenants and Warranties of Lessee. Lessee represents, covenants and warrants as follows: (a) Lessee is a body corporate and politic, duly organized and existing under the Constitution and laws of the State of Colorado. (b) Lessee is authorized by the Constitution and laws of the State of Colorado to enter into this Lease and to effect all of the Lessee's obligations hereunder. The governing body of Lessee has executed the ordinance attached as Exhibit B to this Lease which specifically authorizes Lessee to execute and deliver this Lease. (c) All procedures and requirements, including any legal bidding requirements, have been met by Lessee prior to the execution of this Lease in order to insure the enforceability of this Lease and all rent and other payment obligations will be paid out of funds legally available for such purpose. (d) The letter attached to this Lease as Exhibit D is a true opinion of Lessee's counsel. (e) Lessee will use and service the Equipment in accordance with Vendor's instructions and in such a manner as to preserved all warranties and guarantees with respect to the Equipment. (f) During the term of this Lease, the Equipment will be used by Lessee only for the purpose of performing one or more governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority. (g) The representations, covenants, warranties and obligations set forth in this Article are in addition to and are not intended to limit any other representations, covenants, warranties and obligations set forth in this Lease. - 5 - (h) The Equipment shall be used solely by Lessee and shall not be subject to any direct or indirect private business use. (i) This Lease does not constitute either (1) a private activity bond, as defined in Section 141 of the Internal Revenue Code of 1986, as amended (the "1986 Code ") nor (ii) an arbitrage bond, as defined in Section 148 of the 1986 Code. 0) The obligations of Lessee under this Lease are not federally guaranteed within the meaning of Section 149(b) of the 1986 Code. (k) This Lease is being executed for the purpose of acquiring the Equipment and is not being issued to refund or refinance any outstanding obligation of Lessee. (1) In compliance with Section 149(e) of the 1986 Code relating to information reporting, Lessee has caused or will cause to be filed with the Internal Revenue Service, IRS form 8038 -G or 8038 -GC, as appropriate. (m) Lessee will comply with all arbitrage rebate provisions of the 1986 Code, or will be exempt from the obligation to rebate amounts thereunder. Section 6.2 Representations. Covenants and Warranties of Lessor. Lessor represents, covenants and warrants as follows: (a) During the term of this Lease, Lessor will provide Lessee with quiet use and enjoyment of the Equipment, without suit, trouble or hindrance from Lessor, except upon default by Lessee as set forth in this Lease. (b) Lessee has selected the Equipment and desires to lease the Equipment for use in the performance of its governmental or proprietary functions. Lessor, at Lessee's request, has ordered or shall order the Equipment and shall lease the same to Lessee as herein provided, Lessor's only role being the facilitation of the financing of the Equipment for the Lessee. Lessor will not be liable for specific performance or for damages if the supplier or manufacturer of the Equipment for any reason fails to fill, or delays in filling, the order for the Equipment. Lessee acknowledges that Lessor is not a manufacturer of or a dealer in the Equipment (or similar equipment) and does not inspect the Equipment prior to delivery to Lessee. Lessee agrees to accept the Equipment and authorizes Lessor to add the serial number of the Equipment to Exhibit A. Lessor shall have no obligation to install, erect, test, inspect or service the Equipment. FOR PURPOSE OF THIS LEASE AND OF ANY PURCHASE OF THE EQUIPMENT EFFECTED UNDER THIS LEASE, LESSOR EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO THE CONDITION, QUALITY, DURABILITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT IN ANY RESPECT, AND ANY OTHER REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED. LESSOR WILL NOT BE LIABLE TO LESSEE FOR ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY ANY INADEQUACY, DEFICIENCY OR DEFECT IN THE EQUIPMENT OR BY ANY USE OF THE EQUIPMENT, WHATSOEVER. Lessor assigns to Lessee, without recourse, for the Term of this Lease all manufacturer warranties and guarantees, express or implied, pertinent to the Equipment, and Lessor directs Lessee to obtain the customary services furnished in connection with such guarantees and warranties at Lessee's expense, subject to Lessee's obligation to reassign to Lessor all such warranties and guarantees upon Lessor's repossession of the Equipment. (c) Lessor has not caused to be created any lien or encumbrance on the Property except the security interest provided in Section 1.3 of this Lease. ARTICLE VII EVENTS OF DEFAULT AND REMEDIES Section 7.1 Events of Default Defined. The following shall be "events of default" under this Lease and the terms, "event of default" and "default" shall mean, whenever they are used in this Lease, any one or more of the following events: (a) Failure by Lessee to pay any Rental Payment or other payment required to be paid hereunder at the time specified herein; and (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in Section 7.1(a), for a period of 30 days after written notice, specifying such failure and requesting that it be remedied as given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected. The foregoing provisions of this Section 7.1 are subject to (i) the provisions of Section 3.2 hereof with respect to non - appropriation; and (ii) if by reason of force majeure Lessee is unable in whole or in part to carry out its agreement on its part herein contained, other than the obligations on the part of Lessee contained in Article IV hereof, Lessee shall not be deemed in default during the continuance of such inability. The term "force majeure" as used herein, shall mean, without limitation, the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States of America or of the state wherein Lessee is located or any of their departments, agencies or officials, or any civil or military authority; insurrections; riots, landslides; earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to machinery, transmission pies or canals; or any other cause or event not reasonably within control of Lessee. Section 7.2 Remedies on Default. Whenever any event of default referred to in Section 7.1 hereof shall have happened and be continuing, Lessor shall have the right, at its sole option without any further demand or notice to take one or any combination of the following remedial steps: -7- (a) With or without terminating this Lease, retake possession of the Equipment and sell, lease or sublease the Equipment for the account of the Lessee, holding Lessee liable for the difference between (i) the rents and other amounts payable by Lessee hereunder to the end of the then current Renewal Term and (ii) the purchase price, rent or other amounts paid by a purchaser, lessee or sublessee of the Equipment pursuant to such sale, lease or sublease; and (b) Take whatever action at law or in equity may appear necessary or desirable to enforce its rights as the owner of the Equipment. Section 7.3 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article VII it shall not be necessary to give any notice, other than such notice as may be required in this Article VII. Section 7.4 Waiver of Certain Damages. With respect to all of the remedies of Section 7.2 above, Lessee expressly waives any damages occasioned by Lessor's repossession of the Equipment. ARTICLE VIII PAYMENT OF TAXES, FEES, PERMITS AND UTILITY SERVICES Section 8.1 Interpretation. This Lease for all purposes will be treated as a net lease. Section 8.2 Taxes and Fees. Lessee agrees to pay and to indemnify and hold Lessor harmless from, all license, sales, use, personal property and other taxes and fees, together with any penalties, fines and interest on such taxes and fees imposed or, levied with respect to the Equipment and the ownership, delivery, lease, possession, use, operation, sale and other disposition of the Equipment, and upon the rental or earnings arising from any such disposition, except any federal or state income taxes payable by Lessor on such rental or earnings. Lessee may in good faith and by appropriate proceedings contest any such taxes and fees so long as such proceedings do not involve any danger of sale, forfeiture or loss of the Equipment or of any interest in the Equipment. Section 8.3 Permits. Lessee will provide all permits and licenses necessary for the installation, operation and use of the Equipment. Lessee will comply with all laws, rules, regulations and ordinances applicable to the installation, use, possession and operation of the Equipment. If compliance with any law, rule, regulation, ordinance, permit or license requires changes or additions to be made to the Equipment, such changes or additions will be made by Lessee at its own expense. Section 8.4 Utilities. Lessee will pay all charges for gas, water, steam, electricity, light, heat or power, telephone or other utilities furnished to or used in connection with the Equipment (including charges for installation of such services) during the term of this Lease. There will be no abatement of rent on account of the interruption of any such services. ARTICLE IX USE, REPAIRS, ALTERATIONS AND LIENS Section 9.1 Use. Lessee will not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Lease. Lessee agrees that the Equipment is and, at all times, will remain personal property not withstanding that the Equipment or any part of the Equipment may now or hereafter become affixed in any manner to real property or to any building or permanent structure. Section 9.2 Repairs. Lessee, at its own cost, will service, repair and maintain the Equipment so as to keep the Equipment in as good condition, repair, appearance and working order as when delivered to and accepted by Lessee under this Lease, ordinary wear and tear excepted. At its own cost, Lessee will replace any and all parts and devices which may from time to time become worn out, lost, stolen, destroyed, damaged beyond repair or rendered unfit for use for any reason whatsoever. All such replacement parts, mechanisms and devices will be free and clear of all liens, encumbrances and rights of others, and immediately will become a part of the Equipment and will be covered by this Lease (for all purposes including the obligation of Lessee to retransfer title to Lessor under Section 1.2 herein) to the same extent as the Equipment originally covered by this Lease. Section 9.3 Alterations. Lessee may install such miscellaneous equipment as may be necessary for use of the Equipment for its intended purposes so long as either (a) the installation of such equipment does not alter the function or manner of operation of the Equipment, or (b) Lessee, upon termination of this Lease, restores the Equipment to its function and manner of operation prior to the installation of such equipment. Subject to the obligations described above, Lessee may remove such equipment upon termination of this Lease, if the removal of such equipment will not substantially damage the Equipment. Without the prior written consent of Lessor, Lessee will not make any other alterations, changes, modifications, additions or improvements to the Equipment except those needed to comply with Lessee's obligations to change, add to or repair the Equipment as set forth in Section 9.2 and 10.3 herein. Any alterations, changes, modifications, additions and improvements made to the Equipment, other than miscellaneous equipment installed as set forth above, immediately will become a part of the Equipment and will be covered by this Lease (for all purposes, including the obligation of Lessee to retransfer title to Lessor under Section 1.2 herein) to the same extent as the Equipment originally covered by this Lease. Section 9.4 Liens. Except with respect to the security interest provided in Section 1.3 hereof, Lessee will not directly or indirectly create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to the Equipment or any interest in the Equipment. Lessee promptly, and at its own expense, will take such action as may be necessary to duly discharge any mortgage, pledge, lien, charge, encumbrance or claim not excepted above, if the same arises at any time. ARTICLE X INDEMNIFICATION, INSURANCE AND DAMAGE TO OR DESTRUCTION OF THE EQUIPMENT Section 10.1 Indemnification. Subject to the limitations provided by the Colorado Governmental Immunity Act, Lessee assumes liability for and agrees to indemnify Lessor from and against any and all liability (including attorney's fees) of any nature imposed upon, incurred by, or asserted against Lessor which in any way relates to or arises out of ownership, delivery, lease, possession, use, operation, condition, sale or other disposition of the Equipment. Notwithstanding anything contained in this Section to the contrary, Lessor shall not be indemnified for or relieved of, any liability which may be incurred from Lessor's breach of this Agreement. Section 10.2 Insurance. Lessee, at its cost, will cause casualty insurance, public liability insurance and property damage insurance to be carried and maintained on the Equipment, with all such coverages to be in such amounts sufficient to cover the value of the Equipment at the commencement of this Lease (as determined by the purchase price paid by Lessor for the Equipment), and to be in such forms, to cover such risks and with such insurers as are acceptable to Lessor. As policies of insurance are obtained, Lessee will cause Lessor to be the named insured on such policies as its interest under this Lease may appear. Insurance proceeds from insurance policies as relating to casualty and property damage losses will be payable to Lessor to the extent of the sum of the Option Purchase Price of the Equipment at the time of its damage or destruction and all amounts due and owing hereunder. Lessee will deliver to Lessor the policies or evidences of insurance satisfactory to Lessor, if any, together with receipts for the initial premiums before the Equipment is delivered to Lessee. Renewal policies, if any, together with receipts showing payment of the applicable premiums will be delivered to Lessor at least thirty (30) days before termination of the policies being renewed. By endorsement upon the policy or by independent instrument furnished to Lessor, such insurer will agree that it will give Lessor at least thirty (30) days' written notice prior to cancellation or alteration of the policy. Lessee will carry workmen's compensation insurance covering all employees working on, in or about the Equipment and will require any other person or entity working on, in or about the Equipment to carry such coverage and will furnish to Lessor certificates evidencing such coverages throughout the Term of this Lease. Section 10.3 Damage to or Destruction of Equipment. If all or any part of the Equipment is lost, stolen, destroyed or damaged, Lessee will give Lessor prompt notice of such event and will repair or replace the same at Lessee's cost within thirty (30) days after such event, and any replaced Equipment will be substituted in this Lease by appropriate endorsement. All insurance proceeds received by Lessor under the policies required under Section 10.2 with respect to the Equipment lost, stolen, destroyed or damaged will be paid to Lessee if the Equipment is repaired or replaced by Lessee as required by this Section. If Lessee fails or refuses to make the required repairs or replacement, such proceeds will be paid to Lessor to the extent of the then remaining portion of the Rental Payments to become due during the Term of this Lease less that portion of such Rental Payments attributable to interest, which will not then have accrued. No loss, theft, destruction or damage to the Equipment will impose any obligation on Lessor under this Lease, and this Lease will continue in full force and effect regardless of such liabilities, whether or not covered by insurance, for loss, theft, destruction or damage to the Equipment and for injuries or deaths of persons and damage to property however arising, whether such injury or death be with respect to agents or employees of Lessee or of third parties, and whether such damage to property be to Lessee's property or to the property of others. -10- ARTICLE XI MISCELLANEOUS Section 11.1 Assignment and Sublease by Lessee. Lessee may not assign, transfer, pledge or encumber this Lease or any portion of the Equipment (or any interest in this Lease or the Equipment), or sublet the Equipment, without the prior written consent of Lessor. Consent to any of the foregoing acts shall not constitute a consent to any subsequent like act by Lessee or any other person. Lessee agrees that Lessor may impose on the Equipment such plates or other means of identification as necessary to indicate that the Equipment is subject to this Lease and the restrictions set forth in this Section. Section 11.2 Assignment by Lessor. The parties hereto agree that all rights of Lessor hereunder may be assigned, transferred or otherwise disposed of, either in whole or in part upon notice to Lessee. Lessee shall maintain registration books for this Lease and shall be obligated to make the payments required hereby, including principal and interest payments, solely to the registered owner or owners hereof. Section 11.3 Lessor's Right to Perform for Lessee. If Lessee fails to make any payment or fails to satisfy any representations, covenant, warranty or obligation, Lessor may (but need not) make such payment or satisfy such representation, covenant, warranty or obligation, and the amount of such payment and any expenses incurred by Lessor, as the case may be, together with interest thereon as herein provided, will be deemed to be additional rent payable by Lessee on Lessor's demand. Section 11.4 Addresses. All notices to be given under this Lease will be made in writing and mailed or delivered by registered or certified, return receipt requested, (a) if to Lessee, at 400 Benchmark Road, Avon, CO 81620. (b) if to Lessor, at do Corporate Trust Department, Zions First National Bank, 1 South Main, Third Floor„ Salt Lake City, Utah 84110, until either Lessee or Lessor gives written notice to the other specifying a different address. Section 11.5 Manner of Payment. All payments by Lessee will be made in cash, by certified or cashier's check, or by other manner acceptable to Lessor. Section 11.6 Non - waiver. No breach by Lessee in the satisfaction of any representation, covenant, warranty or obligation may be waived except by the written consent of Lessor, and any such waiver will not operate as a waiver of any subsequent breach. Forbearance or indulgence by Lessor in any regard whatsoever shall not constitute a waiver of the covenant or obligation and until complete performance by Lessee of said covenant or obligation Lessor shall be entitled to invoke any remedy available to it under this Lease despite said forbearance or indulgence. No collection of rent shall operate as a waiver of any default. Section 11.7 Severance Clause. Any provision in this Lease which is prohibited by Law will be treated as if it never were a part of this Lease, and the validity of the remaining terms of this Lease will be unaffected. - 11 - Section 11.8 Entire Agreement: Addendum. This Lease and the attached Exhibits constitute the entire agreement between Lessor and Lessee and supersedes any prior agreement between Lessor and Lessee with respect to the Equipment, except as is set forth in an Addendum, if any, which is made a part of this Lease and which is signed by Lessor and Lessee. Section 11.9 Amendments. This Lease may be amended only by a written document signed by Lessor and lessee. Section 11.10 Inurement. Subject to the restrictions in Section 11.1 above, this Lease is binding upon and inures to the benefit of Lessor and Lessee and their respective successors and assigns. Section 11.11 Governing Law. This Lease is governed by the laws of the State of Colorado. Section 11.12 Headings. Headings used in this Lease are for convenience of reference only and the interpretation of this Lease will be governed by the text only. Section 11.13 Offset. Rental Payments or other sums payable by Lessee pursuant to this Lease shall not be subject to set -off, deduction, counterclaim or abatement and Lessee shall not be entitled to any credit against such Rental Payments or other sums for any reason whatsoever, including, but not limited to, any damage or destruction of the Equipment or any restriction or interference with Lessee's use of the Equipment. Section 11.14 Interest. If Lessee fails to pay any Rental Payment or other amount due hereunder within 10 days after the due date thereof, Lessee shall pay to Lessor interest on such delinquent payment from the due date until paid at the rate of thirteen percent (13 %) per annum. Section 11.15 Nature of this Agreement. Lessor and Lessee agree that it is their intention that, for federal income tax purposes, the interest of Lessor in the Equipment is as a secured party and the interest of Lessee is as a debtor with the aggregate principal amount of the Rental Payments constituting the purchase price of the Equipment, and that Lessor neither has, nor will have, any equity in the Equipment. Section 11.16 Set -Up Fee. As additional consideration for the rights herein granted to Lessee, Lessee agrees to pay Lessor a commencement or set -up fee of Two Hundred Fifty Dollars ($250.00) on the date this Lease is executed. Section 11.17 Designation of Issue for Tax Purposes. In accordance with Section 265 of the 1986 Code, Lessee hereby designates this Lease as an issue qualifying for the exception for certain qualified tax- exempt obligations to the rule denying banks and other financial institutions 100% of the deduction for interest expenses which is allocable to tax- exempt interest. Lessee reasonably anticipates that the total amount of qualified tax- exempt obligations [other than private activity bonds, as defined in Section 141 of the 1986 Code (a qualified 501(c)(3) bond, as defined in Section 145 of the 1986 Code, not being treated as a private activity bond for this purpose)] which will be issued by Lessee and by any aggregated issuer (an issuer and all subordinate issuers being treated as a single issuer) during the current calendar year will not exceed $10,000,000. The total amount of obligations designated by the issuer and all aggregated issuers for the current calendar year does not exceed $10,000,000. - 12 - ATTEST: EXECUTED this 9th DAY OF March , 1994. LESSOR: (SEAL) By: Title Title LES E: (SEAL) By: Albe t J. Wynolds T: Town C le r Title -13- Mayor Title EXHIBIT A Description of Equipment Quantity Item Serial Number See Attached Bid Specification Forms. A -1 TO: HONORABLE MAYOR REYNOLDS AND TOWN COUNCIL FROM: WILLIAM D. JAMES, TOWN MANAGER DATE: FEBRUARY 16, 1994 RE: CAPITAL PURCHASES FOR TRANSIT AND PUBLIC WORKS As a result of getting quotations for lease purchasing the equipment listed below, I have prepared a comparison chart for your review. David Bell will be providing us with this information the first of next week in order for us to do a first reading of an ordinance February 22. EQUIPMENT SUMMARY The amount over budget for the purchase of the equipment will be made up by the difference in the lease payments. The lease payments are less because we budgeted an interest rate of 7% instead of 5.5 %. Budgeted Actual Annual Lease Annual Budget 194 Bid Payments Payment Loader 120,000 122,070 29,005 28,056.36 Oshkosh 186,450 182,243 45,060 42,084.60 Bus 192,000 194,627 46,407 44,635.20 People Mover 55,000 55,360 19,224 12,753.00 $553,450 $554,300 $139,696 $127,529.16 The amount over budget for the purchase of the equipment will be made up by the difference in the lease payments. The lease payments are less because we budgeted an interest rate of 7% instead of 5.5 %. EXHIBIT B ORDINANCE OF GOVERNING BODY Please attach Ordinance #94-8. COLORADO; ORDINANCE NO. 94 - 8 TOWN OF AVON SERIES OF 1994 AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON Section 1. That certain Equipment Lease Agreement, together with Exhibits, is attached hereto as Addendum I, and the terms of this agreement are hereby approved and hereby authorized. Section 2. The Mayor and Town Clerk are hereby authorized and directed to execute said Equipment Lease Agreement. INTRODUCED, PASSED ON FIRST READING, APPROVED AND ORDERED POSTED, this 22ndday of February , 1994, 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 8th day of March 1994, at 7:30 pm in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO Albert J. R no Mayor CT TTEST: —jj - —"4 kA Pa ty Neyh rt, wn Clerk INTRODUCED, PASSED ON SECOND READING, APPROVED AND ORDERED POSTED this 8th day of March , 1994. TOWN OF AVON, COLORADO Albert ATTEST: Patty Ney art own Clerk APPROVED AS TO FORM: ohl Dunn, own Attorney STATE OF Colorado ) : ss. COUNTY OF Eagle ) I, Patty Neyhart , hereby certify that I am the duly qualified and acting Town Jerk of the Town of Avon, Colorado (the "Lessee "); I further certify that the above and foregoing instrument constitutes a true and correct copy of the minutes of a Regular meeting of the Governing Body (the "Board ") of the Lessee including an Ordinance adopted at said meeting held on February 22 and March 8 , as said minutes and the Ordinance is officially of record in my possession, and that a copy of said Ordinance was deposited in my office on February 22 , 19944 . IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of said Lessee thisl4tlday of March , (SEAL) MM 1994 . Town Clerk Title MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD FEBRUARY 22, 1994 - 7:30 P.M. The regular meeting of the Avon Town Council of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Albert J. Reynolds at 7:34PM. A roll call was taken with Councilors Jack Fawcett, John Hazard, Tom Hines, Celeste C. Nottingham, Jim Roof and Judy Yoder present. Also present were Town Manager Bill James, Town Attorney John Dunn, Director of Community Development Steve Amsbaugh, Town Engineer Norm Wood, Superintendent of Recreation Meryl Jacobs, Director of Municipal Services Larry Brooks, Transportation Director Harry Taylor, Fire Chief Charlie Moore, Police Chief Art Dalton, Lieutenant Gary Thomas, Town Clerk Patty Neyhart, as well as members of the press and public. First item Added to the Agenda under Citizen Input was a Funding Request, from Kent Meyers of Vail Associates, for American Airlines summer flights. Mr. Kent Meyers informed of the American Airlines proposal for summer flights. Flights will be scheduled June 16 to August 7; 52 days; one daily flight. The plane, a 757, 188 passenger aircraft, will overnight; arriving in Eagle in the afternoon and departing the following morning, due to installation of lights and atmospheric temperatures. Eagle County Airport will get Stapleton's lights in the fall of 1994. Vail Associates proposes to guarantee summer flights into the Eagle County Airport. American Airlines established a cap of $630,000 making a partnership between American Airlines and Vail Associates. 52 flights X 188 = 9,776 seats totally available at a 69.7% load factor; a little over 6,800 seats to break even. There were 740 seats sold June 16 - August 7, 1993 to passengers utilizing Vail /Beaver Creek Reservations. That represents 2% of the total volume within the community. That would mean there would be 37,000 out of state visitors who could potentially use these flights. The potential impact, of Free Independent Travel (FIT) individuals, not groups, is 20,000. 33% is needed from the FIT individuals. In the winter FIT individuals represent 21 %. Groups and local traffic are anticipated to increase the percentage. Marketing programs will be in place in Dallas, Houston, San Antonio, New York, Miami, Nashville, etc. American Airlines' cap is $630,00, plus hard dollars for marketing makes the total program $700,000. Mr. Meyers is asking the community to make pledges; 10% of pledge dollars become hard. The remaining 90% is soft, based on the performance of the aircraft. We may loose it all. Mr. Meyers has received pledges for approximately $350,000 to date. Mr. Meyer added that United expressed interest in flying out of Denver, after the American Airlines proposal was published. Mr. Meyers stated that once the $500,000- $550,000 range is reached Vail Associates will tell American Airlines to load the flights in the computer and begin selling. This could happen as soon as next Tuesday. Final payment to American Airlines would be sometime in September and Vail Associates would be responsible for that payment. The hard dollars are gone; American Airlines will work on the break even and get all the upside. If we fall short they get all the downside to a point; the cap of $630,000. The following is transcribed out of sequence of the actual meeting, to accommodate a continuous flow of the action taken. Ms. Kate Collins of the Avon /Beaver Creek Resort Association (ABCRA) expressed support for the proposal. Ms. Collins stated that ABCRA has pledged $10,000 from voluntary sponsorships of the members. Mr. Kent Meyers encouraged Council to take action by pledging $40,000. Councilor Yoder motioned that the Town of Avon participate at the level of $40,000 for this program. Councilor Hazard seconded the motion and the motion carried unanimously. Next item Added to the Agenda under Citizen Input was an Invitation to attend an informational meeting, from Celeste C. Nottingham, for a Charter School. Councilor Nottingham stepped down from her Council seat and took the Citizen Input microphone. Councilor Nottingham invited all to an informational and organizational meeting of the Charter School opportunity. The meeting will be held at Gracious Savior Lutheran Church at 7:OOpm. The application of approval, for a Charter School, must be submitted to the local school district. This application is scheduled to be presented within a matter of days. The Charter School is proposed to meet the needs that have been identified for 6 -8 grades. Next item Added to the Agenda under Citizen Input was an Update on the Eagle County Open Space Committee, from Rich Howard. Mr. Rich Howard informed that although they have had several meetings, there is not a lot to report. The Committee is moving slowly and educating themselves. The deadline for any recommendation to the County Commissioners is set for August, as a ballot initiative may appear in November. Mr. Howard noted that his specific duties are to review zoning and planning. Second Reading of Ordinance No. 94 -1, Series of 1994, AN ORDINANCE AMENDING TITLE 16 OF THE MUNICIPAL CODE OF THE TOWN OF AVON AS IT RELATES TO ANNEXATIONS AND REQUIRING DEDICATION OF LAND FOR SCHOOL PURPOSES Mayor Reynolds announced this is a public hearing. Mr. Steve Amsbaugh stated this matter is before Council on second reading. There were no changes to the purposed school land dedication ordinance as a result of the first reading. Staff recommends approval of this Ordinance. Councilor Nottingham motioned approval of Ordinance No. 94 -1, Series of 1994 on second reading. Councilor Hines seconded the motion. The motion carried unanimously. Second Reading of Ordinance No. 94 -6, Series of 1994, AN ORDINANCE AMENDING CHAPTER 9.16 OF THE MUNICIPAL CODE OF THE TOWN OF AVON RELATING TO HARASSMENT Mayor Reynolds announced this is a public hearing. 2 Town Attorney John Dunn stated this matter is before Council on second reading; there were no changes from the time of first reading. Attorney Dunn reminded he was asked to discuss in more detail section 6 relating to the "inconvenient hours" and "offensively course language ". In reviewing a particular case, the court found those not acceptable in terms of free speech or Amendment 1. Councilor Roof 1994 on second and the motion motioned adoption of reading. Councilor carried unanimously. Ordinance No. 94 -6, Series of Fawcett seconded the motion Second Reading of Ordinance No. 94 -7, Series of 1994, AN ORDINANCE AUTHORIZING THE ISSUANCE OF TOWN OF AVON, COLORADO, SALES TAX REVENUE BONDS, SERIES 1994; PROVIDING THE FORM, TERMS AND CONDITIONS OF THE BONDS, THE MANNER AND TERMS OF ISSUANCE, THE MANNER OF EXECUTION, THE METHOD OF PAYMENT AND THE SECURITY THEREFOR; PLEDGING SALES TAX REVENUES OF THE TOWN FOR THE PAYMENT OF THE BONDS; PROVIDING CERTAIN COVENANTS AND OTHER DETAILS AND MAKING OTHER PROVISIONS CONCERNING THE BONDS AND THE SALES TAX REVENUES; RATIFYING ACTION PREVIOUSLY TAKEN AND APPERTAINING THERETO; AND REPEALING ALL ORDINANCES IN CONFLICT HEREWITH Mayor Reynolds announced this is a public hearing. Mr. James stated this Ordinance will allow us to issue $3.9 million in bonds to help pay for the new recreation center. This Ordinance will allow Council, on March 22nd, to set the interest rate and enter into a bond purchase agreement with Coughlin & Company. Mr. David Bell, from Coughlin & Company, informed that he will print and mail the preliminary official statements around March 8th, with Council's approval. Mr. Bell anticipates being in the bond market and securing interest rates, as close to March 22nd as possible. On March 22nd Council may approve or deny the rates. Closing would be the last part of March. Councilor Nottingham questioned the sinking fund redemption. Mr. Bell stated when we go out and sell bonds in the bond market, we have maturities that show up every year that you pay along with interest semi - annually. With a sinking fund, we have combined more maturities in the long end into one that pays principal every year and years previous to that. It will look like you have maturities in your 17 through 20 years with the same interest rate. What that does for us is we can then go out and locate trust funds, pension funds, who can buy bonds in blocks of a million, but maybe can't buy blocks of 250,000 and be competitive in their interest rate. We can say OK, you have a block of a million bonds which are going to begin retiring principal in year 17, 18, and 19, just like a serial maturity is, but it is a block for their portfolio purposes; it is a large block of bonds. Mr. Bell stated it is to our benefit. Mr. James added that on March 18th, A & P will receive bids at 2:OOPM in the afternoon. Because of the late arrival of these bids, the interest rate will be blank in the Resolution, in Council packets. The interest rate will be available at the Council meeting of March 22nd. We will also have a bond purchase agreement, from Coughlin & Company guaranteeing the purchase of the bonds and establishing their fees. Mr. Bell stated in terms of cost issuance, it is his opinion we are at $60,000 including his fee, Sherman & Howard's fee, bank fees, paying agent, printing cost, etc. In terms of reserve funds, he is comfortable with a six month debt service reserve fund at approximately $164,000 instead of 12 months. All of the difference goes into the construction fund. Mr. Bell noted that they have essentially made us almost $200,000 more money to spend. 3 Councilor Hines motioned approval of of 1994 on second reading. Councilor The motion carried unanimously. Ordinance No. 94 -7, Series Yoder seconded the motion. First Reading of Ordinance No. 94 -8, Series of 1994, AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT Mr. James informed that Staff obtained quotes to lease - purchase capital equipment for a loader, an OshKosh, a bus, and a people mover. Total budget was $553,450; bids came in at $554,300 and the annual lease payments will be $139,696. The amount over budget for the purchase of the equipment will be made up by the difference in the lease payments. The lease payments are less because an interest rate of 7t was budgeted, instead of the 5.5°x. The lowest bidder at 5.43°x, Koch required additional language in regards to Amendment 1. Mr. Dee Wisor, bond counsel of Sherman and Howard, advised against this additional language. Based upon that recommendation, Staff recommends Coughlin & Company at 5.5t Councilor Fawcett motioned adoption of Ordinance No. 94 -8, Series of 1994 on first reading. Councilor Roof seconded the motion. The motion carried unanimously. Resolution No. 94 -6, Series of 1994, A RESOLUTION TO AMEND THE 1994 BUDGET. Mr. James reminded that Council, at a previous meeting, authorized a $50,000 contribution towards marketing and $6,000 for the preliminary design work for Lot 16. This Resolution amends the 1994 budget to cover those expenses. Councilor Fawcett motioned to approval Resolution No. 94 -6, Series of 1994. Councilor Yoder seconded the motion and the motion carried unanimously. Resolution No. 94 -7, Series of 1994, A RESOLUTION APPROVING THE FINAL PLAT FOR THE RESUBDIVISION OF LOTS 18 AND 19, BLOCK 1, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, EAGLE COUNTY, COLORADO Mr. Amsbaugh stated this final plat is to vacate the common lot line between Lots 18 and 19, Block 1, Benchmark at Beaver Creek in order to create one buildable lot. Lots 18 and 19 are located on the west side of Metcalf Road and are approximately 2.6 acres in combined size. This lot line vacation will allow construction of a warehouse /office building. Staff recommends approval of Resolution No. 94 -7. Councilor Hines motioned to adopt Resolution No. 94 -7, Series of 1994. Councilor Hazard seconded the motion and the motion carried unanimously. Next Item on the Agenda under New Business was the Easements for Benchmark Road Relocation. Mr. James informed two easements are needed for the construction of our recreation center, along Benchmark Road. The first one is a roadway easement and will allow a more reasonable curve radius on the relocated Benchmark Road. The second is a construction easement, which is a temporary construction easement, that will allow us to use Lot C for the construction of the parking lot. 4 Mr. Jen Wright, owner of Lot C, has been very cooperative. Staff requested Council to authorize acquisition of these easements. Mr. Larry Brooks verbally detailed the area of the easements. Councilor Nottingham motioned to authorize acquisition of the Roadway Easement and Temporary Construction Easement on Lot C, Avon Center at Beaver Creek for the purpose of relocating Benchmark Road and construction of the parking lot in conjunction with the Recreation Center. Councilor Roof seconded the motion and the motion carried unanimously. Next Item on the Agenda under New Business was the Avon Town Square Project. Mr. James informed that the Town has received a request from A.T.S. Joint Venture, the developer of the Avon Town Square project, requesting that the Town consider reimbursing the developer for the cost of the landscape and streetscape improvements from his property line on Benchmark Road to the public right of way that goes out to Avon Road. He has estimated the cost of these improvements to be approximately $6,000. Mr. James noted the improvements along Avon Road were all on the public right of way; the Town of Avon did pay for all those improvements. As property develops, those improvements have been paid for by the developers. As a general guideline, the developer is required to complete the streetscape improvements. The Town of Avon paid for all the improvements down Avon Road. The improvements that went in front of the Christie Lodge were paid for by the Christie Lodge. The improvements that went in front of First Bank were paid for by First Bank. The Town also asked the Post Office to pay for the improvements. The property in question is 56' and runs from the edge of his property out to Avon Road. The streetlight is estimated at $1,200, plus $600 for installation. The electrical meter is estimated at $1,500; the Town pays for all the streetlights, the developer installs them and the Town pays for electrical service for the streetlights. For the Town to be able to read the service separately it will cost $1,500 for the developer to install the meter. Mr. Wood stated the other option, of the $1,500, is for the Town to set another transformer that is estimated to cost a minimum of $2,500, plus you still have service to run from that. Mr. Wood stated additional power is not available and an additional power source is needed to install a total of 9 more lights. Discussion followed with too many people talking at one time, making this portion of the tape difficult to transcribe. Mr. James noted Staff is comfortable paying for one streetlight, including installation; the rest of it is the developer's responsible. The developer needs to tie into public sidewalks and take care of electrical service that will be servicing all streetlights. The Town is going to pay for all the on -going maintenance, the replacement, and on -going electrical use. Councilor Hines motioned to authorize the Town to expend $1,800 for one Town of Avon streetlight. Councilor Nottingham seconded the motion and the motion carried unanimously. Next Added to the Agenda under Other Business was the Promotion of Lieutenant Gary Thomas to Chief of Police. Mr. James announced that Lieutenant Gary Thomas has been promoted to Police Chief effective May 1, 1994. Lieutenant Thomas gave a brief acceptance speech. 5 Next item Added to the Agenda under Other Business was First Tracks Video, video production for the Recreation Center. Councilor Fawcett motioned to go ahead and put it out to bid and discuss at a later date. Councilor Nottingham seconded the motion. The motion carried with Councilor Hines opposing. The Financial Matters were next presented to Council. Councilor Hines motioned to receive items #1 through #6 and approve items #7 through #8. The motion was seconded by Councilor Yoder and carried unanimously. Councilor Roof questioned Eagle County Animal Control Services. Council's consensus was to discuss this further at a later date. Mr. James suggested to discuss this in April, allowing time for Staff to review the impacts to the Town, in terms of the Town providing these services. Next presented to Council were the Council Meeting Minutes. Councilor Hines motioned approval of the February 8, 1994 Regular Council Meeting Minutes as presented. Councilor Yoder seconded the motion and the motion carried unanimously. There being no further business to come before Council, Mayor Reynolds called for a motion to adjourn. Councilor Hines moved to adjourn. The motion was seconded by Councilor Fawcett. The meeting was adjourned by Mayor Reynolds at 9:30PM RESPECTFULLY SUBMITTED: Patty Ney ar town Clerk 11 MINUTES OF THE REGULAR MEETING OF THE TOWN COUNCIL HELD MARCH 8, 1994 - 7:30 P.M. The regular meeting of the Avon Town Council of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Albert J. Reynolds at 7:30PM. A roll call was taken with Councilors Jack Fawcett, John Hazard, Tom Hines, Celeste C. Nottingham, Jim Roof and Judy Yoder present. Also present were Town Manager Bill James, Town Attorney John Dunn, Director of Community Development Steve Amsbaugh, Superintendent of Recreation Meryl Jacobs, Director of Municipal Services Larry Brooks, Transportation Director Harry Taylor, Police Chief Art Dalton, Lieutenant Gary Thomas, Town Clerk Patty Neyhart, as well as members of the press and public. Second Reading of Ordinance No. 94 -8, Series of 1994, AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT Mayor Reynolds announced this is a public hearing. Mr. Bill James stated this Ordinance allows the Town to lease - purchase equipment that has been approved by Council in the 1994 budget. That equipment is a loader with a bid price of $122,070, an OshKosh snowplow at $182,243, a bus at $194,627, and a people mover at $55,360, for a total of $554,300. The budget was $553,450. The difference was made up because interest was budgeted at 711 and actual is 5.5 %. Councilor Hines motioned adoption of Ordinance No. 94 -8, Series of 1994 on second reading. Councilor Hazard seconded the motion. The motion carried unanimously. First Reading of Ordinance No. 94 -9, Series of 1994, AN ORDINANCE AMENDING CHAPTER 2.16 OF THE MUNICIPAL CODE OF THE TOWN OF AVON AS IT RELATES TO QUALIFICATION FOR MEMBERSHIP ON THE PLANNING & ZONING COMMISSION Town Attorney John Dunn stated the purpose of this Ordinance which is before Council on first reading is to amend the Ordinance with reference to the membership of the Planning & Zoning Commission to provide that all members of that Commission will be qualified electors of the Town. Qualified electors is consistent with membership on the Council. Discussions focused on definitions of "qualified elector ", "resident ", and "registered elector ". Council's consensus was to adopt the wording "registered elector" to eliminate any confusion. Councilor Hines motioned to approved Ordinance No. 94 -9, Series of 1994 on first reading with the following amendments: under Section 1, 2.16, Article D, change the word "qualified" to "registered" and under 2.16.040 Vacancies, where it says "qualified elector" change that to "registered elector ". Councilor Yoder seconded the motion. The motion carried unanimously. First Reading of Ordinance No. 94 -10, Series of 1994, AN ORDINANCE PROVIDING FOR THE REZONING OF LOT 3, BLOCK 3, BENCHMARK AT BEAVER CREEK SUBDIVISION FROM RESIDENTIAL HIGH DENSITY COMMERCIAL TO PLANNED UNIT DEVELOPMENT AND ESTABLISHING A DEVELOPMENT PLAN AND DEVELOPMENT STANDARDS RELATED THERETO Mr. Steve Amsbaugh informed this is a public hearing, before the Council, on first reading. Also, a public hearing was held before the Planning & Zoning Commission (P & Z) on February 15, 1994. The P & Z Resolution No. 94 -1 recommends Council approve the request for the rezoning of Lot 3, Block 3, Benchmark at Beaver Creek from residential high density commercial to planned unit development. A vicinity map was displayed, which showed that the proposed development will be surrounded by the Sunridge Condominium development. The current zoning for the property is residential high density commercial which allows a variety of residential uses and commercial uses including hotels, lodges, bed and breakfast, multi - family dwellings, and support retail up to 200 of the total project. The rezoning to PUD would allow the applicant to construct an approximately 15,000 square foot leasable two story retail office building and associated parking consistent with the following project elements. The proposed uses of the building would be retail stores, professional offices, personal service shops, and restaurants. Also proposed for the PUD development standards, the maximum building height would be 48', the minimum building setback would be in the front yard 25' and 10' in the rear, with three caveats. Those caveats being; parking shall be allowed to encroach 20' into the required front yard setback, roof overhangs shall be allowed to encroach 5' into the required rear setback, and the trash enclosure shall be allowed in the rear setback as indicated on the conceptual plan. In addition, maximum site coverage is proposed at 30% of the lot and minimum landscape area to be 20% of the development. Parking would be provided in accordance with the Town Zoning Code. The proposed PUD would provide development which is consistent with or less than current RHDC development standards. Site Access would be from W. Beaver Creek Blvd., across from the entrance to the Sunridge Condominiums. In addition, the intersection of W. Beaver Creek Blvd. and Highway 6/24 has been identified for secondary intersection improvements in the Town's comprehensive plan. The applicant has agreed to participate in the cost for such improvements. The surrounding land uses is currently zoned residential high density on three sides. Immediately to the south is Highway 6/24 and then the Beaver Creek PUD. The application is consistent with the PUD design criteria. And, P & Z and Staff feel the application is consistent with the rezoning criteria set forth in the zoning code. Therefore, Staff recommends the Council approve the rezoning of Lot 3, Block 3, Benchmark at Beaver Creek from RHDC to PUD with the following findings and conditions. Findings = 1.) Rezoning is justified due to the changed character of the area; 2.) Rezoning is consistent with the Town of Avon Comprehensive Plant; 3.) Proposed use is compatible with and complimentary to the surrounding area and uses. Conditions = 1.) PUD Plan and PUD Guidelines as described (including allowed uses, site access, parking and development standards) be incorporated into and binding upon the PUD zone district designation for Lot 3, Block 3, Benchmark at Beaver Creek; 2.) If the Town determines that future street and intersection improvements are necessary in this location, the applicant agrees to participate in the cost for such improvements. One comment letter was received on this, application form the Sunridge II Homeowners Association. Basically, that letter requested the Design Review Board provide modifications on the north elevation, the elevation on the Sunridge side, and add landscaping to break up the long facade. And, they would like their landscaping integrated with the new development. The applicant is agreeable to Sunridge II Homeowners Association's requests. Questions and answers followed Mr. Amsbaugh presentation. 2 Councilor Fawcett felt that item B in Section 6; "applicant agrees to participate in the cost for future street and intersection improvements" needs to be more specific. Councilor Fawcett questioned how this will be determined; what amount will they participate. Councilor Fawcett suggested tying this amount down; either 500 or full cost, or whatever. Mr. Amsbaugh stated currently there is no amount. Other developers have been asked to provide that incremental amount for the length of their property. Mr. Amsbaugh added one way it is usually left is that it is a fair share involvement; their portion is that amount of their frontage. Councilor Roof questioned sidewalks and pedestrian traffic. Mr. Amsbaugh noted there is alot of foot traffic in the area. There is a problem tying down a streetscape program in this area due to the fact there is drainage going on there and we do not have curbs and gutters; this is actually working fairly well. In order to have a design for this property that would go no where; it wouldn't quite make it to the bridge; we need to have a composite intersection design that would be attacked from a broader scope. This is actually the last property to be developed at this intersection. The drainage, it is felt, would be disrupted by putting in curbs, gutters, and sidewalks in at this time. Councilor Roof added there is alot of foot traffic and we do need to consider this along W. Beaver Creek Blvd. Mr. Frank Navarro, with Elk Meadow, Inc., and Mr. Rick Pylman, representing the development partnership, Elk Meadow, Inc., were present. Mr. Navarro noted the model is a massing model and more detail has taken place. The Sunridge side has changed from the input of the P & Z and the Sunridge Homeowners. The roof has changed and windows have been added. Landscaping has been improved on the Sunridge side. Councilor Hines questioned what type of commercial businesses will be available and the traffic study. Certain types of businesses will create more traffic than others. Mr. Pylman stated Alpine Engineering did the study. The trip generation study used was the basic ITE engineering manual listing the standard trip generation rates by types of business and by square footage. The tenant mix now will change over a period of time. Mr. Navarro stated the upstairs will be professional offices, with the downstairs proposed as a bakery, real estate office, and a restaurant. The mix thus far seems to be working well in terms of phasing and staging. In working with Community Development the ruling was made; it didn't matter what tenants we had. The upstairs would be full with office people and the downstairs would be retail. Mr. Pylman stated a meeting was held with the Community Development Department and the Homeowners Association. They agreed to change some aspen trees to spruce and plant more spruce trees between and integrate landscaping with Sunridge. Councilor Hines questioned the applicant on his feelings of the fair -share participation on the streetscape improvements. Mr. Navarro stated they are in agreement to participate. They would rather not put something in today that does not really tie into anything. They would be responsible for improvements as far as proportion of what their property is. Councilor Yoder stated that is fine as long as they remain owners of the building. Councilor Yoder questioned what and how to deal with the new owners. Councilor Yoder felt this needs to be more close - ended. Mr. Pylman stated from an urban design standpoint it does not work to build part of the curb now and part of it next year. It really all needs to happen at once. Right now, we do not know what the costs are so there is no way to tie down a dollar amount. Councilor Nottingham suggested a simple, inexpensive, and functional walkway. Mr. Navarro stated it may be possible to put in an asphalt strip; drainage was a concern with the curb, gutter, and sidewalk. Mr. Pylman suggested extending a temporary sidewalk and added that the driveway has been realigned to be directly across the street from Sunridge's. Mr. James mentioned the second condition needs to be considered as to formulas and possible special improvement districts. Discussion centered around participation in a special improvement district. Mr. John Haak, resident of Sunridge Condominiums and boardmember of the Homeowners Association, has a very positive feeling that the applicant will be very cooperative. Mr. Haak stated all concerns were being dealt with such as the design of the structure itself, plus the plantings and type of trees. Mr. Haak added they would like to continue this working relationship. Mr. Amsbaugh suggested we could work with the applicant to come up with a formula on the second condition or we could strike the condition because they are obligated to participate in a special improvement district. Mr. James stated that unless we are asking them for specific improvements, it would be best to leave that condition out. Mr. Navarro noted that they are agreeable to participate. To address the issue of sidewalks, Mr. Amsbaugh suggested to add a condition; the inclusion of temporary sidewalks to access the property. Councilor Hines motioned to approve Ordinance No. 94 -10, Series of 1994 on first reading with the following findings and conditions, under findings, 1.) the rezoning is justified due to the changing character of the area; 2.) the rezoning is consistent with the Town of Avon Comprehensive Plan; 3.) the proposed use is compatible and complimentary to the surrounding area and uses. And, the conditions, 1.) the PUD plan and PUD guidelines, including allowed uses, site access, parking and development standards, be incorporated into and binding upon the PUD zone district designation for Lot 3, Block 3, Benchmark at Beaver Creek Subdivision and substitution for 2.) that the applicant provide adequate pedestrian access to the property. Councilor Roof seconded the motion. The motion carried with Councilor Yoder abstaining. Resolution No. 94 -8, Series of 1994, A RESOLUTION AMENDING THE 1994 BUDGET. Mr. James stated this Resolution confirms some actions that Council has taken in regards to the 1994 budget over the last couple of meetings. The first amends the marketing budget of $40,000, which will be used to bring summer flights into the Eagle Airport. Secondly, the public works fund budget, traffic and transportation improvements, is amended by $1,800 for a streetlight over by Benchmark Road. And lastly, the current estimate for the recreation center is another $325,000 due to increase in square footage. That increase in square footage is approximately 10,000. Councilor Nottingham motioned to approval Resolution No. 94 -8, Series of 1994. Councilor Yoder seconded the motion and the motion carried unanimously. 4 Approximately $76,000 has been set aside for improvements to Lot 16 and Mr. James asked if Council would rather spend that money on streetscape lighting for the recreation center. Councilor Hines questioned 50' centers. Mr. James stated that the 50' -1001, Staff will have to get back to Council on that. Councilor Yoder motioned that the money that we had previously allocated for Lot 16, approximately $76,000 be changed and be used for as C.C. says those little green lights. Councilor Roof seconded the motion and the motion carried unanimously. Resolution No. 94 -9, Series of 1994, A RESOLUTION APPROVING THE FINAL PLAT AMENDMENT NO. 6 FOR THE RESUBDIVISION OF TRACT B, BLOCK 1, AMENDMENT NO. 5, EAGLEBEND SUBDIVISION FILING NO. 2, TOWN OF AVON, EAGLE COUNTY, COLORADO Mr. Amsbaugh stated this Resolution would grant approval for a final plat of the further subdivision of Tract B in the Eaglebend Subdivision. The plat consists of three single family lots and a reduction in the overall size of Tract B. This further implements Eaglebend by creating lots 14, 15, and 16, and then the remainder is Tract B. The applicant is currently nearing completion of the residential units on these lots. Staff has reviewed the final plat application and recommends approval of this Resolution. Councilor Yoder motioned to adopt Resolution No. 94 -9, Series of 1994. Councilor Hazard seconded the motion and the motion carried unanimously. Resolution No. 94 -10, Series of 1994, A RESOLUTION APPROVING THE FINAL PLAT AMENDMENT NO. 7 FOR THE RESUBDIVISION OF TRACT B, BLOCK 1, AMENDMENT NO. 6, EAGLEBEND SUBDIVISION FILING NO. 2, TOWN OF AVON, EAGLE COUNTY, COLORADO Mr. Amsbaugh stated this is further implementation of the Eaglebend Subdivision. In this case, created lots are 17, 18, and 19, with the remainder being Tract B. Staff has reviewed the final plat application and recommends approval of this Resolution. Councilor Hines motioned to adopt Resolution No. 94 -10, Series of 1994. Councilor Roof seconded the motion and the motion carried unanimously. Next Item on the Agenda under New Business was the 1994 Chip & Seal Work. Mr. Larry Brooks stated that bids were sent out for chip and seal resurfacing in Wildridge for this spring. We received the low bid from GMCO in the amount of $36,672. The budget is $33,000. Since the bid is quantity driven, Mr. Brooks recommended awarding the bid to GMCO for up to $33,000. Work will be done around the end of June and will take approximately 1 and 1/2 days. Councilor Nottingham motioned to approve the bid for the 1994 chip and seal work to GMCO up to the amount budgeted of $33,000. Councilor Roof seconded the motion and the motion carried unanimously. 5 Next Item on the Agenda under New Business was to Award the Bid for the Public Works Annex. Mayor Reynolds stepped down and directed Mayor Protem Nottingham to chair the meeting due to potential conflict of interest. Mayor Reynolds left the Council chambers. Mr. Brooks reminded that last year the bid came in substantially over budget. As a result of that bid process, we redesigned the facility and rebid the project. Two companies responded to that bid; Reynolds Corporation and Guida Builders, Inc. The bids were $220,329 by Reynolds Corporation and Guida Builders submitted a bid of $244,840. After review of those bids, Staff's recommendation is to award the bid to the Reynolds Corporation. Councilor Hazard asked how we could accept a bid that is not a firm bid. The Reynolds Corporation's bid states this is a rough breakdown and this contractor reserved the right to change amounts in the category to offset increase or decrease in the area if needed. Mr. Brooks stated the bottom line is still $220,329 and we will hold the contractor to that amount. Councilor Hines questioned amount of square footage. Mr. Brooks responded the square footage is 2,250. Councilor Hines noted it is approximately $100 per square foot. Councilor Roof questioned previous bid amounts. Mr. Brooks stated that was in the $360,000 range. The biggest difference in design is that the previous facility was a subterranean structure. Councilor Fawcett questioned if Mountain Star has seen the new design. Mr. Brooks stated Mountain Star is comfortable with the design. Mr. James stated Mr. Jen Wright has agreed to pay 5011 of the amount that is over budget. Mr. Wright had no comments regarding the contractor. Mayor Protem Nottingham questioned road cut permit and building permit fees. Mr. James stated those fees will be waived as this is a Town project. Mayor Protem Nottingham asked when this project will be done. Mr. Brooks stated per the contract, finish date is August 15, 1994. Councilor Roof motioned to accept the bid from Reynolds Corporation for the public works annex and agree to share the additional $64,329 over the original estimate with Mountain Star, the 50/50 share. Councilor Hazard seconded the motion and the motion carried unanimously. Mr. Grant Riva, attorney for John Guida of Guida Builders, Inc., requested to come before Council. Mr. Riva asked the Town to require that strict compliance be applied to the requirements of the contract documents and also of the requirements set forth by Colorado laws as far as the time frame as to when this contract needs to be executed and the requirements as far as the bonding conditions. Mr. Riva added that if for some reason the Reynolds Corporation is not able to comply with those provisions as required by the contract documents or as required by law, that the award to Reynolds Corporation be set aside. And, since our corporation is ready and able to perform for the price stated, Guida Builders be awarded the contract. Councilor Hines thought $100 per square foot is high and there is a $24,000 difference between the two bids. Councilor Hines requested an explanation of the extra $24,000. Mr. Mike Guida, owner of Guida Builders, Inc., did not know why the bids were so different. Mr. Guida noted he has a 1216 mark up on his bid and added that is as low as he wants to go. 0 Councilor Fawcett asked Mr. Riva to be more specific on his concerns. Mr. Riva stated there is a 10 day period in which the Reynolds Corporation will be required to comply with some contingencies; the main one being they provide a completed contract, actually three copies of the completed contract, within ten days of the notice of award and within the provisions of the completed contract would be the bond provisions, performance bond and payment bond provisions. Councilor Fawcett questioned ten day period and is there a formal notice from the Town. Mr. Riva stated there is an actual formal notice that the Town fills out a notice of award. Councilor Fawcett noted the ten day period starts when they receive notice; could be twenty days from now whatever date the Town puts on the notice. Mayor Protem Nottingham stated the Town has a financial partner, Mountain Star, for this project. Mr. Riva questioned as far as the agreement with Mr. Jen Wright, was this something that was an agreement in principal that they would pick up 5016 over the contract price or was there a specific number presented to them when they agreed. Mr. James stated that after bids were in he called Mr. Wright and gave him an analysis of where we were at. Mountain Star agreed, under a subdivision improvement agreement with the Town, to contribute $175,000 towards building the annex. Mr. James added up all the other costs that were associated with the low bid, plus the design, soils, and engineering. That added up to approximately $64,000 over the original estimate and Mr. Wright was agreeable to splitting that overage with the Town. Mayor Protem Nottingham asked that we make sure Mr. Rivals concerns are followed. Mr. Brooks stated it is his job to make sure the contract is conformed to; it is in writing. When we give the notice of award, .there are ten days for the contractor to comply with the remainder, before we can give a notice to proceed. We have done this with every other contract and that is what we fully expect to do this time. Mr. Riva stated, if the person who has been awarded the contract is not able to perform, we would like to have the chance to perform. Mayor Protem Nottingham noted their concerns have been heard and thanked them for coming. Mr. Guida added that he is not here to accuse Mr. Brooks or Mr. James of not doing their jobs. Mr. Guida attended the bid opening. And, at that time Mr. Guida had bonding and the other bidder did not have bonding. Mayor Reynolds entered the Council Chambers where upon he returned to chair the meeting. First item Added to the Agenda under Other Business was an update on the American Ski Classic. Councilor Hazard stated the Ski Classic starts this Friday and continues until Sunday, March 20th. Councilor Hazard announced that credentials will be delivered to the Town and distributed schedules of the events. Councilor Hazard reminded that this is a very important event as the Town of Vail is still trying to get the 1999 World Championships. Next item Added to the Agenda.under Other Business was an update on the Violent Youth Crime seminar held in Denver and attended by Councilor Nottingham. 7 Councilor Nottingham informed she attended a seminar in Denver addressing violent youth crime in Colorado through community involvement. Governor Romer spoke the first day and Janet Reno spoke on the third day. Preventative action focused on family structure and rebuilding spirituality. The Financial Matters were next presented to Council. Councilor Roof motioned to receive items #1 through #6 and approve items #7 through #8. The motion was seconded by Councilor Hines and carried unanimously. Next presented to Council were the Council Meeting Minutes. Councilor Nottingham motioned approval of the February 22, 1994 Regular Council Meeting Minutes as presented. Councilor Fawcett seconded the motion and the motion carried unanimously. There being no further business to come before Council, Mayor Reynolds called for a motion to adjourn. Councilor Hines moved to adjourn. The motion was seconded by Councilor Yoder. The meeting was adjourned by Mayor Reynolds at 9:37PM RESPECTFULLY SUBMITTED: Patty Ne hart, Town Clerk STATE OF Colorado ) : ss. COUNTY OF Eagle ) I'Patty Neyhart , the duly qualified Town Clerk Colorado (the "Lessee ") do hereby certify that public notice of the _ of the Town of Avon, March 8 - - .19 94 meeting of the Town Council of Avon (the "Governing Body ") of the Town of Avon, Colorado (the "Lessee ") was given, specifying the date, time and place of the Regular meetings of the Governing Body scheduled to be held during the year, by causing a Notice of Meeting for the Governing Body to be posted as required by the laws of the State of Colorado; IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of said Town of Avon this tiny of March 19 94 Town C er Title (SEAL) mm 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 7:30 P.M. ON THE 8TH DAY OF MARCH, 1994, AT THE TOWN MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 94 -8, SERIES OF 1994: AN ORDINANCE AUTHORIZING EXECUTION OF CERTAIN EQUIPMENT LEASE AGREEMENT 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 this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 23rd day of February, 1994. TOWN OF AVON, COLORADO BY: Patty Neyha t Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON FEBRUARY 23, 1994; AVON POST OFFICE IN THE MAIN LOBBY CITY MARKET IN THE MAIN LOBBY COASTAL MART, INC.; AND AVON MUNICIPAL BUILDING IN THE MAIN LOBBY EXHIBIT C PAYMENT SCHEDULE Lessee: Town of Avon, Colorado 400 Benchmark Road Avon, CO 81620 Date of Lease: April 8, 1994 Date of Closing: April 8, 1994 Principal Amount Due: $554,300 The Lease Payment Schedule attached hereto is an integral part of this Exhibit C. In' ials of Lessee Signatory C -1 (1) Interest has been computed at the rate of 5.50 % per annum. Interest shall accrue from the Commencement Date. (2) Rental payments shall be due on the 1st of each month, commencing May 1. 1994 . The following payments shall be due on the 1st day of each succeeding month, and shall be in an amount equal to the sum of the Payment Amount Attributable to Principal and the Payment Amount Attributable to Interest for the applicable month. (3) The Option Purchase Price, on any given date of calculation, is equal to the Principal Outstanding on the Rental Payment Date immediately preceding the date of calculation (unless such calculation date is a Rental Payment Date, in which case, the Principal Outstanding as of such date) plus accrued interest from such Rental Payment Date at the rate set forth in (1) above. Initialt of Lessee Signatory C -2 Town of Awn, CO Equlpnwnt Leman Ver. 1.1 14•Fb94 LEASE DATA Or101nal Amount: 0041300 Loam Bata: 5.80% Flat Payment Data: OOMW Amoreatlon Ps (Alaumad): 60 Payment Amount: 10.057.77 D"a In Yew (360 or 36M 360 Tow tntaraat Pald 60,965 Pmt Due 9"Innlnp Momtmly En61n0 Data 9alanoa Payment P1lnolpal Itnbrert Iwanow 06/01/04 _ 664,300.00 10,567.77 &047.23 2,540.a4 546.25277 Oe/01/94 64&262." 10,557.77 8.064.11 25o3.e6 83&956.60 07/09/94 535,166.56 1007.77 8.121,16 2,466.61 5306047.50 06/01/04 5x,047.50 1%567.77 &15x39 2,429.38 621,659.11 OW01/04 521,659.11 1%357.77 6,195.75 2,391.00 513,063.33 10101104 313.1193.33 1%867.77 &233.34 2,354.43 505,469.90 11101/94 003,469.90 10.387.77 01271.05 2,318.59 497,150.91 12/01/94 407,158.91 1o,557.77 5,30888 2,27x.78 466,679.92 01 /01/06 466,879.92 10,587.77 8,647.07 2.24870 460.63285 OQ/01/96 46%832.e6 10,557." 83x5.33 2,2OM" 4744141.52 03/01/9e 472.147.52 10,30717 &42170 2.164.01 483,723,75 04/01/95 483,723.75 10,587.77 6.44237 2,12x40 43&281.30 03/01196 465,281.30 10,357.77 8.501.14 2,055.01 443,750.23 0801/98 440,700.23 10,3,7.77 6,540.12 2.047.55 433.220.11 a7/O1/9a 438,220.11 10,507.77 8,579.20 2,008.31 429,x40.88 05 /01/95 4a. "a66 10,587." 4,616.63 1,960.19 421.022.27 89/01/63 421,072.27 18667.77 &555.06 1,926.60 412.364.19 10/01106 414,364.19 10.387.77 6,607.77 1,590.00 403.666.42 11/01/03 403,650.42 10,557.77 0.737.63 1,830.14 304,925.79 12.01/98 394,9x6.79 10,367." s,777.es 11610.09 385,131.11 01/011" 366,151,11 10,587.77 8,817.91 1,7x855 377,333.20 02/01/96 377,3,3.20 10,307.77 8,656.33 1,72x44 33&474,67 03/011" 36&474.87 10,687.77 &595.03 1,666.84 359,375.94 04101/96 359,37x94 10,567.77 5,939.71 1.645.00 350,636.23 tm101/0e 360,636.23 10,557.77 e,9e0,60 1,807.06 341,633.54 05101/94 54/,558.64 1007.77 91021.35 1,666.02 332,63&89 07 /01/90 332,633.69 1%657.77 9,059.20 1,324.57 328,370.49 06/01/05 320.570.49 10,567.77 9,104.74 1,48x.02 314,46x70 0x/01/06 314,40x73 10407." 0,146.47 1,441.30 303,319.26 10/01/95 306,319.0 10.367.77 2,186.39 1,300.36 20&100.60 11101/96 296.130.50 10,667.77 9,230.30 1,35727 26&000.30 12/01/90 200,900.39 10,587." 0627251 1,314.96 2".027.36 01 /01/97 2",027.50 10.867.77 0,318.31 1,272.44 29,312.27 OW01/W 258,31227 10,367.77 0,358.01 1,220.74 250,93426 03101/97 258,954.20 101567.77 0,400.90 1,19x57 249,553.35 04101/97 249.530.30 10,557.77 0,44&08 1.14&79 240,109.35 06101/97 240.100.38 1%867." 9,407.27 1118830 230,892.91 O6 01/97 230,622.11 10,067.77 963,70.75 1,067.02 2!:1.001.36 07/01197 221,091.36 1007.77 0.674.43 1.013.34 211,315.93 Oe101/97 211,51593 10,6x7.77 0.516.34 960.45 201,505.61 00101/07 201,69xa1 10.667.77 9,6412.40 920.37 100.295.21 10/0097 192,236.21 1%587." 91703.59 "1.05 162,629.52 11 /01197 152,32x32 10,6x7.77 0,751.16 63x30 172,"5.34 12/01/97 172,775134 1%337." 0,703.67 791.00 162,96147 01 /01/06 102,95247 10.667.77 MO." 747.00 153,141.70 02/01/96 133.141.70 1%507." %4x6.37 701.00 143,915.83 03001/98 143,23x83 1%567.77 9,031.16 566.60 133,324.63 04/01/06 133,324.65 10.507.77 9.978,70 611.07 123,341.96 06/01/08 123,347.96 10,547." 10,02143 66x34 913.325.62 0801/94 113,32&62 10.687." 10.066.35 31x41 103457.15 07/01/06 103,457.16 10,647.7 10,114.31 473.20 9.!,11166 001/99 90,142.65 10,567." 18980.87 426.90 82,981.79 0809092 89,981.76 90.567.77 10,207.44 300.33 72,"4,34 10101/96 72,774.34 10,537,77 10,211.22 =a5 52,120.12 11/01%98 4320.12 10,567." 10301.22 280.55 52,21x90 12101/98 32.218.90 10,30717 90,546.43 23x34 41,670.47 01/01/99 41,87x47 10,567.77 10,305.30 191.91 31,474.61 057/01/90 31,474.91 10.667." 10,443.51 144.26 21,031.10 03/01/99 21.031.10 10,887.77 10.491.36 05.39 10.509.72 04101/99 10,630.72 1%587.7 10,539.40 48.31 0.20 £0'd '00 2 N11H0(l00 TT179 ?52 £0£ T£:5T t766T -bT -FO EXHIBIT D LAW OFFICES DUNN, ABPLANALP & CHRISTENSEN, P.C. A PROFESSIONAL CORPORATION JOHN W. DUNN VAIL NATIONAL BANK BUILDING ARTHUR A. ABPLANALP, JR. ALLEN C. CHRISTENSEN SUITE 300 DIANE L. HERMAN 108 SOUTH FRONTAGE ROAD WEST ROHN K. ROBBINS VAIL, COLORADO 81657 SPECIAL COUNSEL: JERRY W. HANNAH March 9, 1994 Coughlin & Co. 621 17th Street Denver CO 80202 Gentlemen: TELEPHONE: (303) 476 -0300 TELECOPIER: (303) 476 -4765 As counsel for the Town of Avon, I have examined duly executed originals of Equipment Lease Agreement (the "Lease ") dated March 8, 1994, between the Town of Avon, 400 Benchmark Road, Avon, Colorado 81620 ( "Lessee ") and Zions First National Bank, c/o Corporate Trust Department, Zions First National Bank, One South Main, Third Floor, Salt Lake City, Utah 84110 ( "Lessor "), and the proceedings taken by Lessee to authorize and execute the Lease. Based upon such examination as I have deemed necessary or appropriate, I am of the opinion that: 1. Lessee is a body corporate and politic, legally existing under the laws of the State of Colorado. 2. The Lease has been duly authorized, executed and delivered by Lessee. 3. The Lease is a legal, valid and binding obligation of Lessee, enforceable in accordance with its terms except as limited by the state and federal laws affecting remedies and by bankruptcy, reorganization or other laws of general application affecting the enforcement of creditor's rights generally. Yours very truly, DUNN, ABPLANALP +I Xxw�. Jghn W. Dunn kem & CHRISTENSEN,P.C. EXHIBIT E NO ARBITRAGE CERTIFICATE This Certificate is issued in connection with the Equipment Lease /Purchase Agreement dated as of April 8, 1994, by and between the Town of Avon, Avon, CO, a political subdivision of and duly created and existing under the laws of the State of Colorado (the "Lessee ") and Zions First National Bank, with its principal office, domicile and post office address located in Salt Lake City, Utah, (the "Lessor "). 1. General 1.1 This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the financing of certain equipment by Lessee as described in the Equipment Lease /Purchase Agreement dated as of April 8, 1994, between Lessor and Lessee and all related documents executed pursuant thereto (the "Financing Documents "). 1.2 The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with the responsibility of reviewing and executing the Financing Documents. 1.3 To the best of the undersigned's knowledge, information and belief, the expectations contained in this Certificate are reasonable. 1.4 Lessee has not been notified of any listing or proposed listing of it by the Internal Revenue Service as an issue whose certifications as to arbitrage may not be relied upon. 2. Purpose of the Financing Documents The Financing Documents are being entered into for the purpose of providing certain funds for financing the cost of acquiring, equipping and installing certain equipment which is essential to the governmental functions of Lessee (the "Equipment "), which Equipment is or is to be more specifically described in one or more Certificates executed pursuant to the Equipment Lease /Purchase Agreement. Such funds will be deposited in escrow by Lessor pending acquisition of the Equipment. Such funds shall not be used directly, or indirectly to replace funds used by Lessee to acquire investments which produce a yield materially higher than the yield to Lessor under the Financing Documents. 3. Source and Disbursement of Funds As indicated by Lessor, the amount realized by the sale of the Financing Documents is $554,300, which amount shall be applied to the purchase price of the Equipment. The total purchase price of the Equipment will be deposited by Lessor in an escrow fund that will be used to make purchase price payments to the vendor(s) or manufacturer(s) of the E -1 4. 5. Equipment, and the remainder (if any) provided by Lessee. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the Equipment. Temporary Period /Rebate 4.1 The Equipment will be delivered at various times through October 1, 1994. It is anticipated that all Equipment will be delivered and accepted, and all funds provided by Lessor including investment income expended, prior to October 1, 1994. In the event such funds are not so expended, Lessee covenants to comply with all arbitrage rebate requirements under the Internal Revenue Code of 1986, as amended. 4.2 The total purchase price of the Equipment is not required to be paid to the vendor(s) or manufacturer(s) thereof until the Equipment has been accepted by Lessee. Escrow Account The Financing Documents provide that the .$554,300 to be deposited with an escrow agent is anticipated to be used for acquisition of the Equipment. Further, it is anticipated that these monies shall be invested until payments to the vendor(s) or manufacturer(s) of the Equipment are due. Lessee will ensure that such investment will not result in Lessee's obligations under the Financing Documents being treated as an "arbitrage bond" or a "federally guaranteed bond" within the meaning of Section 148(a) or Section 149(b) of the Internal Revenue Code of 1986, as amended, respectively. Any monies which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be disbursed on or promptly after the date that Lessee accepts the Equipment. Date: April 8, 1994 E -2 i i I Title EXHIBIT F DELIVERY AND ACCEPTANCE CERTIFICATE RE: Equipment Lease Purchase Agreement (the "Lease ") Dated April 8, 1994 Lessee: Town of Avon, Colorado Lessor: Zions First National Bank While not all of the property described in the above Lease has been delivered to us, we hereby request funding for the Lease so that partial payments can be made to the Property vendor(s) and Property deliveries and /or installations completed. We hereby accept the Property pursuant to the Lease, agree to have the Lease commence and acknowledge that all the terms of the Lease notwithstanding, if the funding proceeds, and proceeds of such funding are not completely disbursed by October 1 , 1994, a date within six - months of the execution of the Lease, the Lease may become subject to the investment and rebate provisions of the IRS Code Section 148 and we will comply with all reporting and, if applicable, rebate requirements thereto. F -1