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TC Res. No. 1980-09RESOLUTION NO. 80- 9 A RESOLUTION PROVIDING FOR THE ISSUANCE OF TOWN OF AVON, COLORADO, INDUSTRIAL DEVELOPMENT REVENUE BONDS (CITY MARKET, INC. PROJECT), SERIES 1980, FOR THE PURPOSE OF PROVIDING BUSINESS AND COMMERCIAL FACILITIES AND AUTHORIZING THE PREPARATION OF DOCUMENTS AND INSTRUMENTS RELATING THERETO. WHEREAS, the Town of Avon, Eagle County, Colorado (the Municipality), acting through its Town Council (the Council), is authorized by the provisions of part 1 of article 3 of title 29, Colorado Revised Statutes 1973, as amended (the Act), to finance, acquire, own, lease, improve and dispose of properties to the end that commercial and business enterprises will locate in the Municipality, and the Municipality is further authorized thereby to issue revenue bonds for the purpose of defraying the costs of financing, acquiring, improving and equipping such facilities; and WHEREAS, City Market, Inc., a Colorado corporation (the Company), proposes-to acquire, construct, improve, equip and operate a new supermarket facility and,certain other related facilities (the Project), located within the Municipality; and WHEREAS; the Company has represented to the Municipality that the Project will be designed to qualify as a "project" within the meaning of the Act; and WHEREAS, the Company has requested the Municipality to issue and sell its revenue bonds pursuant to the provisions of the Act (the Bonds) for the purpose of financing the Project; and -3- WHEREAS, the Municipality considers that the financing of the Project will induce the Company to locate the Project in the Municipality, thereby locating its commercial and business enterprise in the Municipality and securing and maintaining a balanced and stable economy in the Municipality, will promote the public health, welfare and safety of the Municipality and its citizens and that the project will provide increased employment opportunities within the municipality; and WHEREAS, prior to the issuance of the Bonds the Municipality will consider and approve by ordinance the final details'of the Bonds and will authorize and approve, subject to the conditions of this Resolution, all acts and the execution of all documents and instruments necessary or desirable in connection with the issuance thereof; and WHEREAS, no public official of the Town who has exercised or will exercise any discretionary function on behalf of the Town with respect to the financing of the Project, has a personal financial interest in or will personally and financially benefit from the financing of the Project or has other conflicts of interest relating to the financing of the Project. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, THAT: Section 1. The Council hereby finds, intends and declares that this Resolution shall constitute its official binding commitment to issue the Bonds, subject to the terms hereof and thereof, and that the adoption o-f this Resolution is and constitutes the taking of affirmative official action by the Municipality, acting by and through the Council, toward the issuance of the Bonds. -4- r Section 2. In order to insure, the completion of the Project and the public benefit which is expected from the operation thereof, the Municipality, subject to the terms and conditions of the Memorandum of Agreement between the Municipality and the Company attached hereto as Exhibit A (the Memorandum of Agreement) and by this reference madea part hereof, will from time to time issue the Bonds pursuant to the provisions of the Act in a principal amount necessary to pay the cost of financing the Project, together with the costs incident to the authorization, issuance and sale of the Bonds, which Bonds will not exceed in aggregate principal amount the sum of $4,000,'000. Section 3. The Bonds shall bear such interest rates, be in such denominations, bear such dates, mature at such dates, be in such form, carry such registration privileges, be executed in such manner, be payable at such place and be subject to,,.such terms of redemption consistent with the Act as shall be authorized and approved by subsequent ordinance of the Council adopted prior to the issuance of the Bonds. Section 4.- Any mortgage, trust indenture, deed of trust, lease, sublease, installment purchase agreement, loan agreement, security agreement, rental a security device, or connection with the Agreements) and any Bonds shall also be the Bonds. greement, option to purchase, or other agreement or any combination thereof, entered into in financing of the Project (the Financing other documents relating to the Project and the authorized and approved prior to the issuance of Section 5. The proceeds of the Bonds will be used to finance the Project. The major components of the 'Proj ect are described in a -5- schedule attached hereto as Exhibit B and by this reference made a part hereof. Section 6. The Municipality will enter into mutually agreeable Financing Agreements with the Company with respect to the Project as more fully described in the Memorandum of Agreement. Section 7. The form of the Memorandum of Agreement is hereby approved, and the Mayor and the Town Clerk are hereby authorized and directed to execute the Memorandum of Agreement on behalf of the Municipality. Section 8. The entire cost of financing the Project will be paid- from the proceeds of the sale of the Bonds or from other Company funds. The Bonds will not be general obligations of the Municipality. Neither shall the the Bonds, including interest thereon, constitute the debt or indebtedness of the Municipality within the meaning of any limitation of the Constitution or statutes of the State of Colorado nor give rise to a pecuniary liability of the Municipality or, a,charge against.its general credit or taxing powers. The Bonds shall be payable solely from and secured by a pledge of the revenues derived from and payable pursuant to the Financing Agreements. Section 9. Nothing contained in this Resolution or the Memorandum of Agreement shall constitute a debt or indebtedness of the Municipality within the meaning of the Constitution or statutes of the State of Colorado nor give rise to a pecuniary liability of the -6- Municipality or a charge against its general credit or taxing powers. ADOPTED AND APPROVED this-'day of 1980. ( TOWN ) { SEAL ) ATTEST: Town Clerk--- TOWN OF -VON r By - -7 -7- The motion was seconded by Council Member A.J. Wells and the question being upon the passage and adoption of this Resolution, the roll was called with the following result: Council Members voting YES: Bill Doyle Steve Erickson Hugh Price -Carol Richards A.J. Wells Council Members voting NO: The Mayor thereupon declared that a majority of the members of the Town Council present having voted in favor thereof, the motion was carried and the Resolution was duly passed and adopted. After the consideration of other business to come before the Town Council the meeting was adjourned. ( TOWN ) ( SEAL ) -8- Exhibit A MEMORANDUM OF AGREEMENT This Memorandum of Agreement is between the Town of Avon, Colorado (the Town), and City Market, Inc., a Colorado corporation (the Company). 1. Preliminary Statement. Among the matters of mutual inducement which have resulted in the execution of this Memorandum of Agreement are the following: (a) The Municipality is authorized and empowered by part 1 of article 3 of title 29, Colorado Revised Statutes 1973, as amended (the Act), to finance, acquire, own, lease, improve and dispose of properties to the end that commercial and business enterprises will locate, expand or remain in the Municipality, to issue revenue bonds for the purpose of defraying the costs of financing, acquiring, improving and equipping such facilities, and to enter into agreements with respect to the financing of such facilities upon such terms and conditions as the Town Council of the Municipality (the Council) deems advisable. (b) In order to provide such facilities, the Company proposes to acquire, construct, improve, equip and operate, by means permitted by the Act, a new commercial and business facility consisting of a supermarket facility and certain other related facilities (the Project). -9- (c) The Municipality has indicated its willingness to proceed with the issuance of revenue bonds as provided by the Act (the Bonds) to finance the Project and.has advised the "Company that, subject to due compliance with all requirements of law and the obtaining of all necessary consents and approvals and to the happening of all acts, conditions, and things required precedent to such financing, the Municipality will issue the Bonds pursuant to the Act in a principal amount sufficient to pay the costs of financing the Project, together with the costs and expenses of issuance and sale of the Bonds, which Bonds will not exceed in aggregate principal amount the sum'of $4,000,000. (d) The Municipality considers that the financing of the Project and the entering into of agreements relating to the Project, such as a mortgage, trust indenture, deed of trust, lease, sublease, installment purchase agreement, loan agreement, security agreement, rental agreement, option to purchase or other necessary documents (the Financing Agreements) with the Company with respect to the Project will induce the Company to :locate the Project in the Municipality, thereby locating its commercial and business enterprise in the Municipality and securing and maintaining a balanced and stable economy in the Municipality, will promote the public health, welfare and safety of the Municipality and its citizens and that the Project will provide increased employment opportunities within the Municipality. -10- • 2. Undertakings by the Municipality. Subject to the foregoing Paragraph 1, the Municipality agrees as follows: (a) It will from time to time issue or cause to be authorized the issuance of the Bonds pursuant to the terms of the Act in a principal amount sufficient to pay the cost of financing the Project, together with costs incident to the authorization, sale and issuance of the Bonds, which Bonds will not exceed in aggregate principal amount the sum of $4,000,000. (b) It will adopt or cause to be adopted such proceedings and authorize the execution and delivery of such documents as reasonably may be necessary or advisable for the authorization, issuance and sale of the Bonds, the financing of the Project, and the-execution of the Financing Agreements with the Company and other documents relating to the Project and the Bonds as shall be authorized by the Act or other law and mutually satisfactory to the Municipality and the Company. (c) The aggregate sums to be paid by the Company under the Financing Agreements shall be required to be sufficient to pay the principal of, interest on, and any premiums due in connection with the redemption of the Bonds as and when the same shall become due. (d) It will take or 'cause to be taken such other acts and adopt such further proceedings as reasonably may be required to implement the aforesaid undertakings. -11- 1 • • (e) The Bonds shall provide that they shall be payable solely from the revenues derived from the operation of the Project pursuant to the provisions of the Financing Agreements, that they shall never constitute the debt or indebtedness of the Municipality within the meaning of any provision or limitation of the Constitution or statutes of the State of Colorado and that they shall not give rise to a pecuniary liability of the Municipality nor a charge against its general credit or taxing powers. (f) In authorizing the issuance of the Bonds pursuant'to this Agreement, the Municipality will make no warranty, either expressed or implied, that the proceeds of the Bonds will be sufficient to pay all costs of the Project'. 3. Undertakings on the Part of the Company. Subject to the foregoing Paragraph 1, the Company agrees as follows: (a) The Company will develop and operate the Project by means permitted by the Act. (b) Prior to the delivery of the Bonds the Company will enter into the Financing Agreements with the Municipality under the terms of which the Company will obligate itself to pay to the Municipality, whether from the proceeds of the Bonds or otherwise, sums sufficient in the aggregate to pay or reimburse the Municipality for expenses incurred by it in connection with the authorization, issuance and sale of the Bonds and the payment of the principal of, interest on, and premiums due in connection with the redemption of the Bonds as and when the same shall become due -12- and payable; all fees and expenses of any trustee for the benefit of the holders of the Bonds incurred under any trust indenture; all utility charges, taxes, assessments, casualty and liability insurance premiums; and any other expenses or charges relating to the ownership, use, operation, maintenance, occupancy and upkeep of the Project. The Financing Agreements shall contain such other provisions.as may be required by law and such other provisions as shall be mutually acceptable to the Municipality and the Company. (c) It will take such further action and adopt such further proceedings as may be required to implement the aforesaid undertakings: 4. General Provisions. (a) All commitments of the Municipality under Paragraph,2 hereof and of the Company under Paragraph 3 hereof are subject to the condition that on or before one year from the date of this agreement (or such other date as shall be mutually satisfactory to the Municipality and the Company) the Municipality and the.Company shall have agreed to mutually acceptable terms for'the Bonds and of the issuance, sale and delivery thereof, and mutually acceptable terms and conditions of any Financing Agreements and: other documents referred to in Paragraph 3 and the proceedings referred to in Paragraphs 2 and 3 hereof. (b) Prior to the issuance of the Bonds, there shall be a reasonable showing to the Municipality that the Company is capable of carrying out their financial obligations under the Financing Agreements. -13- (c) If the events set forth in (a) of this paragraph do not take place within the time set forth or any extension thereof and the Bonds are not issued and sold within such time, the Company agrees that it will reimburse the Municipality for all reasonable and necessary direct out-of-pocket expenses, which the Municipality may incur arising from the execution of this Memorandum of Agreement and the performance of the Municipality's obligations hereunder, and this agreement shall thereupon terminate. IN WITNESS WHEREOF, the parties have entered into this agreement by their duly authorized officers this /_j~-'daY of 1980. ( TOWN ) ( SEAL ) TOWN OF AVON, COLORADO By U M r - CITY MARKET, INC. (CORPORATE) ( SEAL ) ATTEST: It s Secretary By m, LL4 It s Vice President -14- ..t, Exhibit B The major components of the proposed Project are presently contemplated to be as follows: Approximately square feet of land one one-story building with 40,00n square feet of floor space to be used as a supermarket facility. The cost of financing the Project is presently estimated to be $4,000,000. -15- STATE OF COLORADO ) ss. COUNTY OF EAGLE ) TOWN OF AVON ) I, Patricia J. Doyle,-Town Clerk of the Town of Avon, Colorado (the Town), do hereby certify that the foregoing pages, numbered 1 to 15, inclusive,-constitute a full, true and correct copy of the record of proceedings of the Town Council (the Council) of the Town , taken at a regular meeting thereof, held at the Town Hall, Avon, Colorado,'the regular meeting place thereof, on Tuesday, the 13th day of May, 1980, insofar as said minutes relate to Resolution No. 80- 9 1, a copy of which is therein set forth; that said copy of Resolution No.,80- 9 is a-full, true and correct copy of the original of said resolution as adopted by the Council at said meeting; that the original of said resolution has been duly executed and approved by the Mayor and - myself, as Town Clerk, sealed with the seal of the Town, and recorded in the official records of the Town kept in my office. I further certify that 6 members of the Council, constituting a quorum thereof, were present at the meeting and that the members thereof voted for the passage and adoption of Resolution No. 80- 9 as in the minutes set forth. IN WITNESS WHEREOF, I have hereunto set my hand and the seal of the Town this `ay of May, 1980. ( TOWN ) ( SEAL ) wn Cl e r -16-