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TC Res. No. 1985-32RESOLUTION NO. 85-32 A RESOLUTION APPROVING AN INDUSTRIAL DEVELOPMENT PROJECT FOR LANDMARK HOTEL CORPORATION. , MAKING CERTAIN FINDINGS AND DETERMINATIONS, PRELIMI- NARILY APPROVING THE ISSUANCE OF UP TO $10,000,000 PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REVENUE BONDS ( HOLIDAY INN PROJECT) IN CONNECTION THEREWITH AND AUTHORIZING REPRESENTATIVES OF* THE TOWN TO TAKE ACTION INCIDENTAL THERETO. WHEREAS, the Town of Avon, in the State of Colorado (the Town) is authorized by the County, and Municipality Development Revenue Bond Act, constituting Title 29, Article 3, Colorado Revised Statutes (the Act), to acquire, own, lease, improve, and dispose of properties to the end that the Town may be able to promote industry and develop trade or other- economic activity by inducing profit or nonprofit corporations, federal governmental offices, hospitals, and agricultural, manufacturing, industrial, commercial, or business enterprises to locate, expand, or remain in the State of Colorado, to mitigate the serious threat of extensive unemployment in parts of the State, to secure and maintain a balanced and stable economy in all parts of the State, and to further the use of its agricultural products or, natural resources; and WHEREAS, representatives of Landmark Hotel Corporation , a Kansas Corporation (the Company), have met with officials of the Town and have advised the Town of the Company's interest and need in obtaining financing for a project consisting of the acquisition, construction and equipping of a hotel consisting of land, building and equipment (the Project) located or to be located in the Town; and WHEREAS, the Town has considered the Company's proposal and has 'concluded that the economic benefit to the Town will be substantial and it wishes to proceed with the financing of the Project; and WHEREAS, the action herein contemplated is not prohibited by any resolutions, ordinances or rules of the Town; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Approval of the Bonds. In order to induce the Company to complete the Project, the Town, subject to the terms and conditions of -the Memorandum -of Agreement (attached hereto as Exhibit A and by this reference' made a part hereof), shall take all steps necessary or advisable to effect the issuance of industrial development revenue ' bonds or other obligations in a maximum aggregate principal amount not exceeding -1- 11 0 $10,000,000 or such lesser- amount as shall be mutually agreed upon to finance the Project. No costs are to be borne by the Town in connection with this transaction. Section 2. Final Authorization of Details. Prior to execution of the necessary financing documents as shall be mutually- agreed upon in connection with the Project and such bonds or other ,obligations, such documents will be subject to authorization by ordinance of the Town pursuant to law and any resolutions and rules of the Town. Section 3. Reimbursement of Expenses. The Company shall reimburse the Town for any expenses borne by the Town in connection with the adoption of this Resolution, the performance by the Town of its obligations hereunder, the issuance of such industrial development revenue bonds, the preparation of any documents relating thereto and any legal or financial consultants retained in connection therewith. Section 4. Findings and Determinations. The Town Council hereby finds and declares that the Project will meet the public purposes set forth in the Act. Section 5. Nature of Obligation. ' Nothing contained in this Resolution shall constitute the debt or -indebtedness of the Town, within the meaning, of the Constitution or statutes of the State of Colorado, nor give rise to a pecuniary liability of the Town or a charge against its general credit or taxing powers. Section 6. Special Conditions. All commitments of the Town under this Resolution are subject to the following conditions: (1) the bonds which are the subject of this Resolution shall not be issued unless at least ten (10) days prior to the second reading (which shall not be later than December 16, 1985 ) of the ordinance authorizing such issuance, the Town shall have agreed with all necessary parties on mutually acceptable terms for the bonds (including any letter of credit or other credit enhancement) and the sale and delivery thereof and mutually acceptable terms and conditions of -any trust instrument in respect to the bonds and any other documents and actions referred to herein or otherwise necessary to effect the provisions of this Resolution; (2) the Town shall have received all information necessary to satisfy it regarding the desirability of the issuance of the bonds, including but not limi.ted to all information required under Resolution 'No. 81-8, all pursuant to terms acceptable to the Town; (3) the Town shall have received an unqualified approving legal opinion of bond attorneys acceptable to the Town; and (4) 'the Project shall comply with all land use regulations prior to the issuance of the bonds. If the events set forth in this section as prerequisites to the issuance of the bonds do not take place, the Company agrees that it will make payment of all expenses incurred by the Town in association with the proposed bond issue. In no event . -2- shall the Town be represented to be responsible for any expenses incurred -during-any phase of the implementation of the within Resolution or the proposed issuance of the bonds. Section 7. Assignment of Rights. The Company's rights to have the Project- financed by the Town may be assigned by the Company with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data on the proposed assignee. Furthermore, the Company may add and/or delete partner(s) with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data and other information supplied by the revised Company group. Section 8. Repealer. All orders, bylaws and resolu- tions, or parts thereof, in conflict with this resolution are hereby repealed. This repealer shall not be construed to revive any order, bylaw or resolution, or part thereof, heretofore repealed. Section 9. Severability. If any section, paragraph, clause or provision of this resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this resolution. Section 10. No Conflicts of Interest. No member of the Town Council having acted upon this Resolution in his or her official-capacity (i) has a direct or indirect interest in the Project, loan agreement, mortgage or bonds, (ii) owns any interest in the Project or the Company, (iii) is an officer or employee of the Company,,(iv) will be involved in supervising the completion of the Project on behalf of the Company, or (v) will receive any commission, bonus or remuneration for or in respect to the Project, the loan agreement, the bonds or the mortgage. Section 11. Tax Reform Act, of 1984_Alloc,ation. The Tax Reform Act of 1984 requires that the bonds contemplated by this Resolution must have an allocation of the state cap imposed by that Act. Upon receipt of such an allocation, the Town Council shall call a public hearing on the issuance of the bonds and publish notice as required. Section 12. Information Reporting Under Internal Revenue Code. The Town shall do all acts necessary to complete the information reporting requirements required by Section 103 of the Internal Revenue Code of 1954, as amended, and all regulations thereunder. - Section 13. Effective Date. This resolution shall take effect immediately upon its introduction and passage. It is,, however, the desire of the Town that the Company . diligently pursue the timely issuance of the bonds; to that end, the Town -3- may reconsider and repeal this resolution if, upon review, it is determined that the Company is not proceeding in a diligent and timely fashion. INTRODUCED, READ, APPROVED AND ADOPTED upon the affirmative vote of -5- for and -0- against present at a regular meeting of the Town Council heFd-this 10th day of September, 1985 at the Avon Municipal Building, 400'Benchmark Road, Avon, Colorado. Town of Avon State of 'Colorado Shei a R. Davis, Mayor Pro-Ter. ( S E A L ) ATTEST: Barbara R..Josep Dep ty Town Clerk -4- The question being upon the passage and.-adoption of this Resolution, the roll was called with the following result: Those voting .YES: Steve Miller Don Buick- Al Connell Clint Watkins. Sheila Davis Those voting NO: None AkARRXX Abstaining: Allan Nottingham A.J. Wells The presiding officer thereupon declared that a majority of the members of the Town Council elected and present having voted in -favor thereof, the 'said motion was carried and this Resolution duly passed and adopted. -S- STATE OF COLORADO ) ) ss. TOWN OF AVON ) I, Barbara Joseph, Deputy Town Clerk of the Town of,Avon, in the State of Colorado, do hereby certify that the foregoing pages 1- 5, inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of the Town, taken at a regular meeting of the Council, held at Avon Municipal Building, 400 Benchmark Road, Avon, Colorado, on Tuesday, "the 10th day of September, 1985, commencing at the hour of 7:30 P.M., as recorded in. the official Record of the Proceedings of the Town kept in my office, insofar as said proceedings relate to a resolution approving the issuance of Industrial Development Revenue Bonds Holiday Inn Project), in the aggregate principal amount not to exceed of $10,000,000; that said proceedings were duly had and taken; that the meeting was duly held; and that the persons were present at said meeting as therein shown. That the ,original Resolution has been duly authenticated by the signatures of the Mayor Pro-Tem and myself, Deputy Town Clerk, and sealed with the corporate seal of the Town. IN WITNESS WHEREOF, I have hereunto subscribed my, name and affixed the seal of the Town of Avon, Colorado, this l-lth day of September, 1985. ( S E A L 14 Deputy Town Clerk -6- EXHIBIT A MEMORANDUM OF AGREEMENT This Memorandum of Agreement is between the Town of Avon, Colorado, (the Town) and Landmark Hotel Corporation , a Kansas Corporation (the Company). 1. Preliminary Statement. Among the matters of mutual inducement which have resulted in the execution of this Agreement are the following: (a) The Town is a duly organized town in the State of Colorado, a body politic and corporate, authorized and empowered by 29-3-101, et seq., C.R.S. (the Act) to issue industrial development revenue bonds for the purpose of defraying the cost of acquiring, constructing, improving and ,equipping land, buildings or other improvements and all necessary and appurtenant real and personal properties, whether or not-now in existence, suitable for a business enterprise within the Town and to enter into financing arrangements with respect to such facilities, upon such terms and conditions'as the Town Council (the Council) deems advisable. (b) In order to promote sound economic- growth and employment opportunities for citizens of the State of Colorado, the Company proposes to acquire certain land and to construct and equip a hotel thereon within the Town (the Project), and pursuant to a Loan Agreement between the Town and the Company (the Loan Agreement), the Town will loan the proceeds of its industrial revenue bonds (the Bonds) to the Company for such acquisition and construction and the Company will make loan payments thereunder sufficient to pay the principal of, premium, if any and interest on the- Bonds . (c) The Town has indicated its willingness to proceed with the issuance of its bonds as provided by the Act 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 Town, pursuant to the Act, will issue the Bonds in a principal amount sufficient to pay the costs of such acquisition and completion of the Project, the funding of any necessary reserves and the expenses of issuance and sale of, the Bonds, not to exceed an aggregate principal amount not to exceed $10,000,000. -1- 0 (d) The Town considers that financing the Project and entering into the Loan Agreement with the Company with respect to the Project will promote the sound economic growth of the State of Colorado and will meet the public purposes set forth in the Act. 2. Undertakings by the Town. The Town agrees as follows: (a) The Town will issue the Bonds pursuant to the terms of the Act in a principal amount sufficient to finance the Project, the funding of any necessary reserves and the expenses incident to, the authorization, sale and issuance of the Bonds, and Bonds shall not be issued in an aggregate principal amount in excess of $10,000,000. (b) The Town will cooperate in obtaining an allocation of the state cap on private activity bonds imposed by, the Tax- Reform Act of 1984 and thereafter will hold a public hearing and adopt such proceedings and authorize (i) the execution and delivery of such documents as may be reasonably necessary or advisable for the authorization, issuance and sale of the Bonds, (ii) acquisition and completion of the Project, and (iii), the execution of the Loan Agreement with the Company and such other documents relating to the Project and the Bonds as shall be authorized by- the Act or other law and as shall be mutually satisfactory to the Town and the Company. (c) The aggregate sums to be paid by the Company under the Loan Agreement shall be sufficient to pay the principal of, redemption premium, if any, and interest on the Bonds as and when the same become due. (d) The Town will take such other acts and adopt such, further proceedings as may be reasonably required to implement the aforesaid undertakings and as it may deem appropriate in pursuance thereof. (e) The Bonds shall provide that they shall be payable solely out of the revenues derived from the payments to the Town by the Company pursuant to the provisions of the Loan Agreement, that they shall never constitute the general obligations of the Town within the meaning of any provision or limitation of the Constitution or statutes of the State and that they shall not constitute nor give rise to a pecuniary liability or a charge against the general credit or taxing powers of the Town, the State of Colorado or any political subdivision thereof. -2- 9 0 (f) In authorizing the issuance of the Bonds pursuant to this Agreement, the Town 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. The Company agrees as follows: (a) The. Company has or will enter into a contract or contracts for the acquisition of the land and the construction and completion of the Project. (b) Prior to the delivery of the Bonds, the Company will enter into the Loan Agreement with the Town under the terms of which the Company will obligate itself to complete the acquisition and completion of the Project and, to the extent not payable out of proceeds of the Bonds, to pay to the Town sums sufficient in the aggregate to pay 'or reimburse the Town for expenses incurred by it in connection with the authorization, issuance and sale of the Bonds and to make loan payments sufficient to pay the principal of, premium, if any, and interest on the Bonds as and when the same shall become due and payable, all fees and expenses of any trustee for the benefit of the owners 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, such Loan Agreement to contain such other provisions as may be required by law and as shall be mutually acceptable to the Town and Company. (c) The Company will deposit with the Town on the date, of- the signing of this Agreement TEN THOUSAND DOLLARS ($10,,000.00) as a good faith deposit on which the Town may draw to pay any expenses it incurs with respect to the authorization issuance or sale of the Bonds. In the event such deposit, or future deposits, becomes exhausted, the Company shall deposit an additional FIVE THOUSAND DOLLARS ($5,000.00) at the Town's request. (d) The Company will take such further action and adopt such-further proceedings as may be required to implement its aforesaid undertakings or as it may deem appropriate in pursuance thereof. (e) The Town -and Company mutually agree that -the Company shall find a purchaser or underwriter of the Bonds; provided, that the Town shall not incur any liability for the -3- 9 0 payment of the fees and expenses of any legal advisor, fiscal advisor or underwriter except that the same may be paid out of the proceeds of the sale of the Bonds. IN WITNESS WHEREOF, the parties have entered into this Agreement by their duly authorized officers on this day of September, 1985. ATTEST: TOWN OF AVON, COLORADO ( S E•A L ) Deputy own C1 rk ( Mayor Pro=Tem ATTEST: ( S E A L ) Secretary President -4- ERICK D. STOWE LICENSED IN COLORADO 9 WYOMINO DAVID P. HERSKOVITS LICENSED IN COLORADO 9 ARIZONA ALAN D. LAFF LICENSED IN COLORADO STEPHEN R. DEMING LICENSED W COLORADO a MARYLAND LAFF STOWE & HERSKOVITS PROFESSIONAL CORPORATION ATTORNEYS AT LAW THE CHANCERY. SUITE ' 1000 1120 LINCOLN STREET DENVER, COLORADO 80203-2112 TELEPHONE (303) 830-2800 TELECOPIER 830-8233 September 12, 1985 Colorado Department of Local Affairs State of Colorado 1313 Sherman Street, Room 520 Denver, Colorado 80203 Attention: Pat Ratliff, Director IN ASSOCIATION WITH LAW OFFICES OF TIMOTHY J. SABO. P. C. LOS ANGELES. CALIFORNIA (818) 704.0195 Re:' Town of Avon, Colorado Industrial Development Revenue Obligations (Holiday Inn Project) Ladies and Gentlemen: Pursuant to the provisions of Section 5, Paragraph A, Subparagraph 1 of Executive Order No. D0062 84 'and in compliance With the provisions of C.R.S. 24-32-1408, we submit the following preliminary opinion relating to the proposed issuance of indus- trial development revenue obligations by _the Town of Avon, Colorado for. Landmark Hotel Corporation, a Kansas corporation.- it is. our preliminary-opinion based upon the facts and informa-' tion presented to us to date that the proposed obligations constitute "private-activity bonds" as that term is defined in IRC.Section 103(n). If such bonds are to be issued, they must receive an allocation of the limitation of principal amount of private- activity bonds to be issued in the State of Colorado imposed by the IRC Section 103(n). This preliminary opinion accompanies the Town's Application to' Request, Authority to Issue Private Activity Bonds in Colorado wherein the Town has indicated a ,request in the amount of $10,000,000. If I may be of any assistance, please do not hesitate to write or call. Respectfully submitted, LAFE-- E, HERSKOVITS, P.C. Erick D. Stowe EDS/f as 0 APPLICATION TO REQUEST AUTHORIAO ISSUE PRIVATE ACTIVITY BONDS IN COLORADO 1. Town of Avon, Colorado ssuing Authority Name P. 0. Box 975,.Avon, Colorado 81620 Address William D. James (303) 949-42sn Local Government Officer Coordinator Telephone Number 2.. Erick D. Stowe (10-1),81Q-?Rnn Name o on Counsel Telephone Number 1120 Lincoln Street, Suite 1000, Denver,-Colorado 80203-21 2 Address 3. Ho_lida Inn Project Project for Which- Allocation is Requested Avon Colorado Location or Address i applicable), or Purpose o Project 4. 9/10/85 Date of Adoption o Inducement Resolution or Similar Action ; please attach a copy to this form. 5. $10,000,000 Amount of Authority Requested 6. Does the Issuing Authority intend to carry forward the allocation, applied for here,past the current calendar year? No 7. Has a preliminary opinion by the Issuing Authority's bond counsel, in accordance with 24-32-1408, Colorado Revised.Statutes, been included with this application? Yes I understand that applications-which are incomplete will not be processed for allocations of authority to issue Private Activity Bonds; and To the best of my knowledge, the foregoing information is true and correct. (Signed) _ n estion above Officer tiste Town Manager Title 9/12/85 Date STATE OF COLORADO ) ss. TOWN OF AVON ) A regular meeting of the Town Council of the Town of Avon-, Colorado, was held at 7:30 P.M., on Tuesday, September-10, 1985, at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado, in accordance with the rules and regulations of the Town'. Upon roll call the following were_present, constituting a quorum: Council Members: Allan R. Nottingham, Mayor A.J. Wells Don Buick Al Connell Steve Miller Sheila Davis- Clint Watkins The following Council Members were absent: None Also present: .Town Manager: Town Clerk: Town Attorney: William D. James Barbara R. Joseph, Deputy John Dunn The following were also present: . Thereupon, Council Member Nottingham, introduced a resolution which was read IXO=xfca XX (by title only) * and is as follows: *Strike inapplicable wording. September. 6, -1985 - Mr. William D. James - Town Manager = P. 0. Box 975 Avon, CO 81620 Dear Bill: Enclosed is the Resolution with Addendum for the Landmark project. Hope to see you again soon. Sincerely, JPD:ddd 0 DETHMAN encls. • STATE OF COLORADO ) ss. TOWN OF AVON ) A regular meeting of the Town Council of the Town of Avon, Colorado, was held-at 7:30 P.M., on Tuesday, September 10, 1985, at the Avon Municipal 'Building, 400 Benchmark Road, Avon, Colorado, in accordance with the rules and regulations of the Town. Upon roll call the following were present, constituting a quorum: Council Members: Allan R. Nottingham, Mayor A.J. Wells Don Buick Al Connell Steve Miller Sheila bavis Clint Watkins The following Council Members were absent: Also present: Town Manager: Town Clerk: Town Attorney: William D. James Barbara R. Joseph, Deputy John Dunn The following were also present: Thereupon, Council Member Nottingham introduced a resolution which was read %X XJtKXX; (by, title only)* and is as follows: None *Strike inapplicable wording. • . 0 RESOLUTION NO. 85-32 A RESOLUTION APPROVING AN INDUSTRIAL DEVELOPMENT PROJECT FOR LANDMARK HOTEL CORPORATION , MAKING CERTAIN •FINDINGS AND DETERMINATIONS, PRELIMI- NARILY APPROVING _THE ISSUANCE OF UP TO $10,000,000 PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REVENUE' BONDS ( HOLIDAY INN PROJECT) IN CONNECTION THEREWITH AND AUTHORIZING REPRESENTATIVES OF THE TOWN TO TAKE ACTION INCIDENTAL THERETO. WHEREAS, the Town of Avon, in the State of Colorado (the Town) is authorized by the County and Municipality Development Revenue Bond Act, constituting Title 29, Article 3, Colorado Revised Statutes (the Act), to acquire, own, lease, improve, and dispose of properties to the end that the Town may be able to promote industry and develop trade or other, economic activity by inducing profit or nonprofit corporations, federal governmental offices, hospitals, and agricultural, manufacturing, industrial, commercial, or business enterprises to locate, expand, or remain in the State of Colorado, to mitigate the serious threat , of extensive unemployment in parts of the State, to secure and maintain a balanced and stable economy in all parts of the State, and to further the use of its agricultural products or natural resources; and WHEREAS, representatives of Landmark Hotel Corporation , a Kansas Corporation (the Company), have met with officials of the Town and have advised,the Town of the Company's interest and need in obtaining financing for a project consisting of the acquisition, construction and equipping of a hotel consisting of land, building and equipment (the Project) located or to be located in the Town; and WHEREAS, the Town has considered the Company's proposal and has concluded that the economic benefit to the Town will be substantial and it wishes to proceed with the financing of the Project; and WHEREAS, the action herein contemplated is not prohibited by any resolutions, ordinances or rules of the Town; NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Approval of the Bonds. In order to induce the Company to complete the Project, the Town, subject to the terms and conditions of the Memorandum of Agreement (attached hereto as Exhibit A and by this reference made a part hereof), shall take all steps, necessary or advisable to effect the issuance of industrial development revenue bonds or other obligations in a maximum aggregate principal amount not exceeding -1- • $10,000,000 or such,. lesser amount as shall be mutually agreed upon to finance the Project. No costs are to be borne by the Town in connection with this transaction. Section 2. Final Authorization of Details. Prior to execution of the necessary financing documents as shall be mutually agreed upon in connection with the Project and such bonds or, other obligations, such documents will be subject to authorization by ordinance of the Town pursuant to law and any resolutions and rules of the Town. Section 3. Reimbursement of Expenses. The Company shall reimburse the Town for any expenses borne by the Town in connection with the adoption of this Resolution, the performance by the Town of its obligations hereunder, the issuance of such industrial development revenue bonds, the preparation of any documents relating thereto and any legal or financial consultants retained in connection therewith. Section 4. Findings and Determinations. The Town Council hereby finds and.declares that the Project will meet the public purposes set forth in the Act. Section 5. Nature of obligation. Nothing contained in this Resolution shall constitute the debt or indebtedness of the Town within the meaning of the Constitution or statutes of the state of Colorado, nor give rise to a pecuniary liability of the Town or a charge against its general credit or taxing powers. Section 6. Special Conditions. All commitments of the Town, under this Resolution are subject to the following conditions: (1) the bonds which are the subject of this Resolution shall not be issued unless at least ten (10) days prior to the second reading (which shall not be later than December 16, 19851 of the ordinance authorizing such issuance, the Town shall have agreed with all necessary parties on mutually acceptable terms for the bonds (including'any letter of credit or other credit enhancement) and the sale and delivery thereof and mutually acceptable terms and conditions of any trust instrument in respect to the bonds and any other documents and actions referred to herein or otherwise necessary to effect the provisions of this Resolution; (2) the Town shall have received all information necessary to satisfy it regarding the desirability, of the issuance of the bonds, including but not limited to all information required under Resolution No. 81-8, all pursuant to terms acceptable to the Town; (3) the Town shall have received an unqualified approving legal opinion of bond attorneys acceptable to the Town; and (4) the Project shall comply with all land use regulations prior to the issuance of the bonds. If the events set forth in this section as prerequisites to the issuance of the bonds do not take place, the Company agrees that it will make payment of all expenses incurred by the Town, in association with the proposed bond issue. In no event -2- .,m~rlsmwwuw..^rwaaa->..'.^•_:,.'•_. - _ .":~_.:Y~:..'!i'~t2".v,T-~".-.•..c-n-.+.A .~rz.-Rr.-._-r ..x++ys-!~:.s _ _ shall the Town be represented to be responsible for any expenses incurred during any phase of the implementation of the within Resolution or the proposed issuance of the bonds. Section 7. Assignment of Rights. The Company's rights to have the Project financed by the Town may be assigned by the Company with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data on the proposed assignee. Furthermore, the Company may add and/or delete partner(s) with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data and other information supplied by the revised Company group. Section 8. Repealer. All orders, bylaws and resolu- tions, or parts thereof, in conflict with this resolution are hereby repealed. This repealer shall not be construed to revive any order, bylaw or resolution, or part thereof, heretofore repealed. Section 9. Severability. If any section, paragraph, clause or provision of this resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall not affect any of the remaining provisions of this resolution. Section 10. No Conflicts of Interest. No member of the Town Council having acted upon t is Reso ution in his or her official capacity (i) has a direct or indirect interest in the Project, loan agreement, mortgage or bonds, (ii) owns any interest in the Project or the Company, (.iii) is an officer or employee of the Company, (iv) will be involved in supervising-the completion of the Project on behalf of the Company, or (v) will receive any commission, bonus or remuneration for or in respect to the Project, the loan agreement, the bonds or the mortgage. Section 11. Tax Reform Act of 1984 Allocation. The Tax Reform Act of 1984 requires that the bonds contemplated by this Resolution must have an allocation of the state cap imposed by that Act. Upon receipt of such an allocation, the Town Council shall call a public hearing on the issuance of the bonds and publish notice as required. Section 12. Information Reporting Under Internal Revenue Code. The Town shall do all acts necessary to complete the information reporting requirements required by Section 103 of the Internal Revenue Code of 1954, as amended, and all regulations thereunder. Section 13. Effective Date. This resolution shall take effect immediately upon its introduction and passage. It is, however, the desire of the Town that the Company diligently pursue the timely issuance of the bonds; to that end, the Town -3- may reconsider and repeal this resolution if, upon review, it is determined that the Company is not proceeding in a diligent and timely fashion. INTRODUCED, READ, APPROVED AND ADOPTED upon the affirmative vote *of _-5- for and -0- against present.at a regular meeting of the Td ii - Council he this 10th day of September, 1985 at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Town of Avon State of Colorado Shei a R. Davis, Mayor Pro-Tem ( S 'E A ,L ) ATTEST: ,I ~ ^ r Barbara R. Josep Dep y~Town Clerk -4- The question being upon the passage and adoption of this Resolution, the roll was called with the following result: Those-voting YES: Steve Miller Don. _ ui c _ Al Connell Clint Watkins Sheila Davis Those voting NO: None AkNNNkR Abstaining: Allan Nottingham A.J. Wells The presiding officer thereupon declared that a majority of the members of the Town Council elected and present having voted in favor thereof, the said motion was carried and this Resolution duly passed and adopted. -5- • STATE OF COLORADO TOWN OF AVON • ss. I, Barbara Joseph, Deputy Town Clerk of the Town of Avon, in the State of Colorado, do hereby certify that the foregoing pages 1- 5, inclusive,.,constitute a true and correct copy of the Record of Proceedings of the Town Council of the Town, taken at a regular meeting of the Council, held at Avon Municipal Building, 400 Benchmark Road, Avon, Colorado, on Tuesday, the 10th. day of September, 1985, commencing at the hour of 7:30 P.M., as recorded in the official Record of the Proceedings of the Town kept in My office, insofar as said proceedings relate to a resolution approving the issuance of Industrial Development Revenue Bonds ( Holiday Inn - Project), in the aggregate principal amount not to exceed of $10,000,000; that said proceedings were duly had and taken; that the meeting was duly held; and that the persons were present at said meeting as therein shown. That the original Resolution has been duly authenticated by the signatures of the Mayor Pro-Tem and myself, Deputy Town Clerk, and sealed with the corporate seal of the Town. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal-of the Town of Avon, Colorado, this 11th day of September, 1985. ( S E A L ) Deputy Town Clerk -6- 9 EXHIBIT A MEMORANDUM OF AGREEMENT This Memorandum- of Agreement is between the Town of Avon, Colorado, (the Town) and Landmark Hotel Corporation , a Kansas Corporation (the Company). .1. Preliminary Statement. Among the matters of mutual inducement-which have resulted in the execution of this Agreement are the following: (a) The town is a duly organized town in the State of Colorado, a body politic and corporate, authorized and empowered by 29-3-101, et seq., C.R.S. (the Act) to issue .industrial development revenue bonds for the purpose of defraying the cost of acquiring, constructing, improving and equipping land, buildings or other improvements and all necessary and appurtenant real and personal properties, whether or not now in existence, suitable for a business enterprise within the Town and to enter into financing arrangements with respect to such facilities, upon such terms and conditions as the Town Council (the Council) deems advisable. (b) In order to promote sound economic growth and employment opportunities for citizens of the State of Colorado, the Company proposes to acquire certain land and to construct and equip a hotel thereon within the Town (the Project), and pursuant to a Loan Agreement between the Town and, the Company (the Loan Agreement), the Town will loan the proceeds of its industrial revenue bonds (the Bonds) to the Company for such acquisition and construction and the Company will make loan payments thereunder sufficient to pay the principal of, premium, if any and interest on the Bonds. (c) The Town has indicated its willingness to proceed with the issuance of its bonds as provided by the Act 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 Town, pursuant to the Act, will issue the Bonds in a principal amount sufficient to pay the costs of such acquisition and completion of the Project, the funding of any necessary reserves and the expenses of issuance and sale of the Bonds, not to exceed an aggregate principal 'amount not to exceed $10,000,000. -1- 0 0 (d) The Town considers that financing the Project and entering into the Loan Agreement with the Company with respect to the Project will promote the sound economic growth of. the State of Colorado and will meet the public purposes set forth in ,the Act. 2. Undertakings by the Town. The Town agrees as follows: (a) The Town will issue the Bonds pursuant to the terms of the Act in a principal amount sufficient to finance the Project, the funding of any necessary reserves and the expenses incident to the authorization, sale and issuance of the Bonds, and Bonds shall not be issued in an aggregate principal amount in excess of $10,000,000. (b) The Town will cooperate in obtaining an allocation of', the state cap on private activity bonds imposed by the Tax Reform Act of 1984 and thereafter will hold a public hearing and adopt such proceedings and authorize (i) the execution and delivery of such documents as may be reasonably necessary or advisable for the authorization, issuance and sale of the Bonds, (ii) acquisition and completion of the Project, and (iii) the execution 'of the Loan Agreement with the Company and such other documents relating to the Project and the Bonds as shall be authorized by the Act or other law and as shall be mutually satisfactory to the Town and the Company. (c) The aggregate sums to be paid by the Company under the Loan Agreement shall be sufficient to pay the principal of, redemption premium, if any, and interest on the Bonds as`and when the same become due. (d) The Town will take such other acts and adopt such further proceedings as may be reasonably required to implement the aforesaid undertakings and as it may deem appropriate in pursuance thereof. (e) The Bonds shall provide that they shall be payable solely out of the revenues derived from the payments to the Town by the Company pursuant to the provisions of the Loan Agreement, that they shall never constitute the general obligations of the Town within the meaning of any provision or limitation of the Constitution or statutes of the -State and that they shall not constitute- nor give rise to a pecuniary liability or a charge against the general credit or taxing powers of the Town, the State of Colorado or any political subdivision thereof. -2- (f) In authorizing the issuance of the Bonds pursuant to this Agreement, the Town 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. The Company agrees as follows: (a) The Company has or will enter into a contract or contracts for the acquisition of the land and the construction and completion of the Project. (b) Prior to the delivery of the Bonds, the Company will enter into the Loan Agreement with the Town under the terms of which the Company will obligate itself to complete the acquisition and completion of the Project and, to the extent not payable out of proceeds of the Bonds, to pay to the Town sums sufficient in the aggregate to pay or reimburse the Town for expenses incurred by it in connection with the authorization, issuance and sale of the Bonds and to make loan payments sufficient to pay the principal of, premium, if any, and interest on the Bonds as and when the same shall become due and payable, all fees and expenses of any trustee for the benefit of the owners of the Bonds incurred under any trust indenture, all utility charges, taxes, assessments, casualty and liability insurance premiums, and any other expense's or charges relating to the ownership, use, operation, maintenance, occupancy and upkeep of the' Project, such Loan Agreement to contain such other provisions as may be required by law and as shall be mutually acceptable to the Town and Company. (c) The Company will deposit with the Town on the date of the signing of this Agreement TEN THOUSAND DOLLARS ($10,000.00) as a good faith deposit on which the Town may draw to pay any expenses it incurs with respect to the authorization issuance or sale of the Bonds. In the event such deposit, or future deposits, becomes exhausted, the Company shall deposit an additional FIVE THOUSAND DOLLARS ($5,000.00) at' the Town's request. (d) The Company will take such further action and adopt such further proceedings as may be required to implement its aforesaid undertakings or as it may deem appropriate in pursuance thereof. (e) The Town and Company mutually agree that the Company shall find a purchaser or underwriter of the Bonds; provided, that the Town shall not incur any liability for the -3- r 4 payment of the fees and expenses of any legal advisor, 'fiscal advisor or underwriter except that the same may be paid out of the proceeds of the sale of-the Bonds. IN WITNESS WHEREOF, the parties have entered into this Agreement by their duly authorized officers on this day of September, 1985. AT-TEST: TOWN OF AVON, COLORADO - ( S E-A L ) Deputy own rk Mayor Pro=Tem ATTEST: ( S E A L ) Secretary President -4- Town of Avon P. O. Box 975, Avon, CO 81620 (303) 9494280 September 17, 1985 Mr. Gary Keller Landmark Hotel Corporation 3802 S. Topeka/Suite 800 Topeka, Kansas 66609 Dear Mr. Keller: 0 Enclosed are two signed originals of Resolution 485-32, passed by the Avon Town Council on September 10, 1985, approving an Industrial Development Project for the Landmark Hotel Corporation. Please have both originals executed by the Landmark Hotel Corporation where indicated, retain one for your files, and return the other to the Town of Avon with your check in the amount of $10,000.00. Should you have any questions, please feel free to contact me at your convenience. Sincerely, TOWN OF AVON William D awes, Town Man ger WDJ/brj RESOLUTION NO. 85-32 SERIES OF 1985 RESOLUTION SETTING FORTH THE TOWN OF AVON'S INTENT TO ISSUE INDUS- TRIAL DEVELOPMENT REVENUE BONDS TO FINANCE THE LANDMARK HOTEL CORPORATION PROJECT. WHEREAS, representatives of Landmark Hotel Corporation (the "Corporation"), have met with officials of the Town of Avon, Colorado (the "Town"), and have advised the Town of the Corpora- tion's interest in having the Town issue a series of industrial development revenue bonds pursuant to the Colorado County and Municipality Development Revenue Bond Act constituting Article 3, Title 29, Colorado Revised Statutes (the "Act"), to finance the acquisition, construction, and equipping of a hotel consisting of land, buildings, and equipment (the "Project"), to be owned by the Corporation; and WHEREAS, the Town Council has considered the Corpora- tion's request and has concluded that the application is complete and that issuance of such bonds for such purpose will promote trade and produce substantial economic benefit for the Town and desires to indicate its intent to proceed with the financing of the Project. NOW, THEREFORE, BE IT RESOLVED, by the Town Council of the Town of Avon, Colorado, that: SECTION 1. In order to assist and to induce the Corpora- tion to locate the Project within the boundaries of the Town, on the site described in Exhibit A, it is the Town Council's intent to take all necessary or advisable steps to effect the issuance of industrial development revenue bonds in the maximum aggregate prin- cipal amount of $10,000,000 or such lesser amount as shall be de- termined and agreed upon by the Corporation and the Town to finance the Project. SECTION 2. The Town shall be reimbursed for any expenses borne by the Town in connection with the adoption of this Resolu- tion, the performance by the Town of its obligations hereunder, the issuance of such industrial development revenue bonds, the prepara- tion of any documents relating thereto and any legal or financial consultants retained in connection therewith. • • SECTION 3. Prior to the execution of any financing agreement, mortgage or indenture of trust, bond purchase agreement, or any other necessary documents and agreements in connection with such bonds, such documents and/or agreements shall be subject to authorization by ordinance of the Town pursuant to law. SECTION 4. Contemporaneously with the delivery of the bonds, the Corporation will enter into a financing agreement with the Town under the terms of which it will be obligated to complete the acquisition, construction, and installation of the Project, to use the proceeds of the bonds to pay only the costs of acquiring, constructing and installing the Project, including payment of interest on the bonds during the construction period of the Project (not to exceed three years), the funding of any necessary reserves and the payment of the expenses incidental to the issuance and sale of the bonds, and to pay all reasonable expenses of the Town in con- nection with the bonds. The financing agreement shall contain such other provisions as may be required by law, and such other provisions as shall be mutually acceptable to the Town and the Corporation. SECTION 5. All commitments of the Town under this Resolu- tion are subject to the following conditions: 1. The bonds which are the subject of this Resolution shall not be issued until and unless on or before 12 months from the date of adoption of this Resolution the Town shall have agreed with all necessary parties on mutually acceptable terms for the bonds and the sale and delivery thereof and mutually acceptable terms and conditions of any trust instrument in respect to the bonds and any other documents and actions referred to herein or otherwise necessary to effect the provisions of this Resolu- tion; 2. The Town shall have received all information necessary to satis- fy it regarding the desirability of the issuance of the bonds, including but not limited to all information required under Resolution No. 81-8, all pursuant to terms acceptable to the Town; 3. The Town shall have received an unqualified approving legal opinion of bond attorneys acceptable to the Town; and 4. The Project shall comply with all land use regulations prior to the issuance of the bonds. If the events set forth in this section as prerequisites to the issuance of the bonds do not take place, the Corporation agrees that it will make payment of all expenses incurred by the Town in association with the proposed bond issue. In no event shall the Town be represented to be responsible for any expenses incurred during any phase of the implementation of the within Resolution or the proposed issuance of the bonds. 2 SECTION 6. Any affirmative effort on the part.of the Corporation toward issuance of the bonds authorized hereunder sub- sequent to the adoption of this Resolution by the Town shall con- stitute acceptance by-the Corporation of the conditionsherein' imposed upon the agreement of the Town established by this Resolution. SECTION 7. The Corporation's rights to have the Project financed by the Town may be assigned by the.Corporation with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data on the proposed assignee. Furthermore, the Corporation may add and/or delete part- ner(s) with the consent of the Town, which consent shall be based upon the review and acceptance by the Town of financial data and other information supplied by the revised Corporation group. - SECTION 8. All orders, bylaws, and resolutions, or parts thereof, in conflict with this Resolution are hereby repealed. This repealer shall not be construed to revive any order, bylaw, or resolution, or part thereof, heretofore repealed. SECTION 9. If any section, paragraph, clause, or provi- sion of this Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such sec- tion, paragraph, clause, or provision shall not affect any of the remaining provisions of this resolution. SECTION 10. This Resolution shall take effect immedi- ately upon its introduction and passage. It is, however, the de- sire of the Town that the Corporation diligently pursue the timely issuance of the bonds; to that end, the Town may reconsider and re- peal this Resolution if, upon review, it is determined that the Corporation is not proceeding in a diligent and timely fashion. INTRODUCED, READ AND ADOPTED ON September 10, 1985, by a vote of for and against, at a regular meeting of the Town Council at 7:30 p.m. at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. TOWN OF AVON ATTEST: Patricia J. Doyle, Town Clerk BY Allan R. Nottingham, Mayor 3 0 EXHIBIT A Lot 1, Wildwood Resort, a Resubdivision of Lots 5, 52A, and 52B, Block 1, Benchmark at Beaver Creek Subdivision, Town of Avon, County of Eagle, State of Colorado, as shown on Plat recorded in Eagle County in Book 411 on Page 961.