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TC Res. No. 1985-35RESOLUTION NO. 85-35 A RESOLUTION APPROVING AN INDUSTRIAL DEVELOPMENT PROJECT FOR AVON REGENCY SUITES PARTNERS , MAKING CERTAIN FINDINGS AND DETERMINATIONS, PRELIMI- NARILY APPROVING THE ISSUANCE OF UP TO $10,000,000 PRINCIPAL AMOUNT OF INDUSTRIAL DEVELOPMENT REVENUE BONDS ( AVON REGENCY SUITES 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 Avon Recgency-Suites Partners , a Colorado Partnership (the Company), have met with officials of t e 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, 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 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- • 0- 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 -withthe 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 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- 0 E 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 affirma- tive vote of for and against present at a regular meeting of the Town Council held t- 22nd day of October, 1985, at the Avon Municipal Building, 400 Benchmark Road, Avon, Colorado. Town of Avon State of Colorado ( S E A L ) ATTEST: Patricia J. Doyle, Town Clerk 10 Sheila R. Davis, Mayor Pro-Te -4- 0 • The question being upon the passage and adoption of this Resolution, the roll was called with the following results: Those voting YES: Those voting NO: Abstaining: Absent: 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. r~ I, Patricia J. Doyle, 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 day of 1985, commencing at the hour of 7:30 p.m., as recorded in the official Record of Proceedings of the Town kept in my office, insofar as said proceedings relate to a resolution approving the issuance of Industrial Development Revenue Bonds ( Avon Regency Suites 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, 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 day of , 1985. ( S E A L ) -6- Patricia J. Doyle, Town Cler CJ • EXHIBIT A MEMORANDUM OF AGREEMENT This Memorandum of Agreement is between the Town of Avon, Colorado, (the_ Town) and Avon Regency.Suites Partners , a Colorado 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- i 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- • . 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- ~ - ~ 5 i 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 , 1985. ATTEST: ( S E A L ) TOWN OF AVON, COLORADO Patricia J. Doyle, Town Cler Sheila R. Davis, Mayor Pro-Tem. ATTEST: ( S E A L ) Secretary President -4-