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TC Res. No. 1994-11RESOLUTION NO. 94-11 A RESOLUTION DESIGNATED PROVIDING FOR THE AWARD OF THE TOWN OF AVON, COLORADO, SALES TAX REVENUE BONDS, SERIES 1994 TO COUGHLIN, & CO., INC.; PROVIDING FOR THE INTEREST RATES FOR EACH MATURITY OF THE BONDS; APPROVING THE PURCHASE AGREEMENT AND PRELIMINARY OFFICIAL STATEMENT IN CONNECTION THEREWITH; AND PROVIDING THE EFFECTIVE DATE HEREOF. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Definitions. All terms used in this Resolution shall have the same meaning as in Ordinance No. 94-7, Series 1994 (the "Bond Ordinance") unless otherwise defined herein. Section 2. Accen=e of Purchase Proposal. The Bond Purchase Contract submitted by the Purchaser for the purchase of the Bonds is hereby approved in substantially, the form submitted at this meeting. The Mayor and Town Clerk are hereby authorized and directed to execute and_ deliver the Bond Purchase Contract in substantially the form presented at this meeting. Section 3. Bond Details. The Bonds shall be issued in the aggregate amount of $3,900,000. The Bonds shall mature serially on September 15 of the designated years, in the designated amounts of principal and at the designated interest rates as follows: Year Amount Interest Maturing Maturing 1994 $ 60,000 3.750% 1995 120,000 4.250 1996 125,000 4.700 1997 130,000 5.000 1998 135,000 5.200 1999 140,000 5.400 2000 145,000 5.600 2001 150,000 5.800 2002 160,000 5.900 2003 165,000 6.000 2004 175,000 .6.150 2005 185,000 6.300 2006 195,000 6.450 2007 205,000 6.600 2008 215,000 6.700 2009 230,000 6.750 2010 245,000 6.800 2014 1,120,000 7.000 Section 4. Preliminary Official Statement The Preliminary Official Statement dated March 10, 1994 is hereby approved and the officers of the Town are authorized and directed to participate in the preparation of, and to execute and deliver, a final official statement for the 1994 Bonds. The execution of the final official statement by the Mayor shall be conclusively deemed to evidence the Town's approval of the form and contents thereof. Section 5. Bank Qualification. The Town hereby designates the Bonds as qualified tax-exempt obligations for purposes of Section 265(b)(3)(B) of the Internal Revenue Code of 1986, as amended. The Town, including its subordinate entities, does not expect to issue more than $10,000,000 of tax-exempt obligations during calendar year 1994. Section 6. Implied Repealer. All resolutions, bylaws and orders, or parts thereof, inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any resolution, bylaw or order, or part hereof heretofore repealed. Section 7. 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 ' -2- unenforceability of such section, paragraph, clause or provision shall not affect any, of the remaining provisions of this Resolution. Section 8. Effective-Date. This Resolution shall become effective upon adoption. Aayo [SEAL] Attest: To Clerk -3- TOWN OF AVON EAGLE COUNTY, COLORADO SALES TAX REVENUE BONDS SERIES 1994 BOND PURCHASE AGREEMENT April 26, 1994 Town Council Town of Avon, Colorado 400 Benchmark Road Avon, Colorado 81620 Ladies and Gentlemen: The Town of Avon, Eagle County, Colorado (the "Town") proposes to issue $3,900,000 aggregate principal amount of the Town of Avon, Colorado, Sales Tax Revenue Bonds, Series 1994 (the "Bonds") pursuant to an ordinance adopted by the Town Council of the Town (the "Council") on February 22, 1994 (the "Bond Ordinance"). This Bond Purchase Agreement (the "Agreement") states the terms and conditions upon which the Town will sell and Coughlin & Co. Inc. (the "Purchaser"), will purchase all of the Bonds from the Town and supersedes any prior agreement between the Town and the Purchaser with respect to the Bonds. If this Agreement is accepted by the Town, the Purchaser intends to make a distribution of the Bonds by offering the Bonds for sale to investors and other securities dealers at such prices as the Purchaser in its sole discretion shall determine from time to time; provided however that, prior to the delivery of the Bonds, the Purchaser shall notify the Town in writing of the initial offering prices of the Bonds to the public (excluding bond houses, brokers, or similar persons acting in the capacity of underwriters or wholesalers) at which prices a substantial amount of each maturity of the Bonds was sold. The Town has previously caused to be prepared a Preliminary Official Statement concerning the Bonds, dated as of March 10, 1994, which was final as of its date (the "Preliminary Official Statement") for purposes of allowing the Purchaser to comply with Rule 1 Sc2-12 of the Securities Exchange Commission (the "Rule"), except for the information specifically permitted to be omitted by the Rule. The Town authorizes and ratifies the distribution of the Preliminary Official Statement to any potential customers (as defined in the Rule) until the Final Official Statement (defined below) is available. A Final Official Statement to be dated as of the date of its delivery to the Purchaser (the "Final Official Statement") is hereby approved in substantially the form of the Preliminary Official Statement with such changes as may be approved by the Town Manager whose execution shall be conclusive evidence of such approval. The Final Official Statement, together with any and all supplements and amendments which may be approved by the Town and the Purchaser, is referred to herein as the "Official Statement." The Town authorizes and approves the use of the Official Statement in connection with the offering of the Bonds. The Town will make available to the Purchaser from the financial printer 100 copies of the Final Official Statement within seven business days of the date this Agreement is approved by the Council. The Purchaser hereby acknowledges that 100 copies of the Final Official Statement are sufficient for purposes of allowing it to comply with the Rule. Additional copies of the Final Official Statement may be obtained from the financial printer at the expense of the Purchaser. The expense of preparing and printing the Preliminary Official Statement, the Official Statement and any attorneys' fees will be an expense of the authorization, sale and delivery of the Bonds. Capitalized terms under this Agreement and not otherwise defined herein shall have the same meanings given to the terms of the Bond Ordinance. ARTICLE I The Bonds shall mature and bear interest as described in Exhibit A, attached hereto and incorporated hereunder by reference. The terms of the Bonds shall be as described more fully in the Bond Ordinance. ARTICLE II Section 2.1. 5~dc. Upon the terms and subject to the conditions stated in this Agreement, the Town agrees to issue and sell to the Purchaser, and the Purchaser agrees to purchase from the Town, at the Closing (as defined below), all but not less than all of the Bonds maturing, bearing interest, and subject to redemption as provided in the Bond Ordinance at a purchase price of $3,872,700, consisting of par of the Bonds, less a discount of $27,300, plus accrued interest to the Closing Date (as hereinafter defined). Section 2.2. Closing. In this Agreement, the term "Closing" means the consummation of the issuance and sale of the Bonds by the Town and the purchase of the Bonds by the Purchaser. The Closing is currently scheduled to occur at the offices of Sherman & Howard L.L.C. at 9:00 am. on May 4, 1994 (the "Closing Date"), and may occur at such different place or time as may be agreed in writing by the Town and the Purchaser. At the Closing, the Town will cause the Registrar to authenticate and deliver the Bonds in definitive form to The Depository Trust -2- Company for the account of the Purchaser against receipt by the Town of the full amount of the purchase price. ARTICLE III The obligations of the Town to sell and the Purchaser to purchase the Bonds shall be subject to the satisfaction of each of the following conditions: Section 3.1. Legal Opinions. As of the Closing, the Town and the Purchaser shall receive (a) the approving opinion of Sherman & Howard LLC, Denver, Colorado, as Bond Counsel ("Bond Counsel"), dated the day of Closing, as to the validity of the Bonds and the exclusion of interest thereon from gross income and alternative minimum taxable income, subject only to such qualifications and exceptions as, in the Purchaser's judgment, will not materially adversely affect the market value of the Bonds, and (b) the opinion of Sherman & Howard LLC, Denver, Colorado, as Special Counsel, as to the Official Statement in a form satisfactory to the Town. Section 3.2. Bond Ordinance and Other Instruments. As of the Closing, the Bond Ordinance, the Agreement, the Registrar Agreement between the Town and Colorado National Bank, Denver, Colorado (the "Registrar Agreement") and any other instruments and agreements contemplated thereby shall be in full force and effect and shall not have been modified or changed except as may have been agreed to in writing by the Purchaser. Section 3.3. No Litigation. As of the Closing, there shall not have been entered or issued by any court, administrative agency, or other governmental body of any jurisdiction, and there shall not have been commenced or threatened any proceeding in any court, administrative, or other governmental body of any jurisdiction which could reasonably be expected to lead to the entry or issuance of any judgment, order, decree, injunction, or other adjudication having the purpose or effect, actual or threatened, of prohibiting the issuance, sale or delivery of the Bonds by the Town, the distribution of the Bonds by the Purchaser, or the performance by the Town of any of its obligations as provided in the Bonds, the Bond Ordinance, the Preliminary Official Statement, the Official Statement, the Registrar Agreement, or this Agreement. Section 3.4. Certificates of the Town. As of the Closing, the Town shall deliver to the Purchaser a certificate signed by duly authorized officials of the Town relating to due organization, absence of litigation and due authorization and delivery of the Bonds, the Bond Ordinance and this Agreement in a form satisfactory to the Purchaser. In addition, as of the Closing, the Town shall deliver to the Purchaser, in form and substance satisfactory to the Purchaser, a certificate executed by one or more officers of the Town, to the effect that the Official Statement, as then amended or supplemented, to the best of their knowledge, neither contains an untrue statement of any material fact nor omits to state any material fact necessary to make the statements -3- made in the Official Statement, in light of the circumstances in which they are made, not misleading. Section 3.5. Financial Information. Commencing in the fiscal year after the Closing, the Town will furnish to the Purchaser, upon request, annually through December 31, 2013 the following information: (a) the Town's annual budget and (b) the Town's audited annual financial statements. Section 3.6. Other Documents. As of the Closing, the Town and the Purchaser shall receive, in form and substance satisfactory to the Town and the Purchaser, (a) the Official Statement executed on behalf of the Town by the Town Manager at the time and in the manner specified in this Agreement, (b) an executed copy of the Bond Ordinance, (c) an executed copy of the Registrar Agreement, and (d) such additional certificates or other documents as the Town or the Purchaser may reasonably require to provide evidence of the satisfaction of all the conditions stated in this Article or elsewhere in this Agreement upon the obligations of the Town and the Purchaser. ARTICLE IV Expenses will be incurred to make arrangements for the sale of the Bonds before their delivery and receipt of proceeds by the Town. Unless the obligation of the Purchaser to purchase the Bonds is terminated pursuant to Article V, expenses incurred in connection with the authorization, sale and delivery of the Bonds will be borne by the Town, including: Fees of Bond Counsel; Fees of Special Counsel; Fees of Accountants; Printing of the Preliminary Official Statement, the Official Statement and the Bonds; Registrar and Paying Agent Fees; CUSIP registration fees; and Any travel outside the State of Colorado. The payment of these expenses will be included as an itemized cost of the issuance of the Bonds and will be paid out of the proceeds of the sale of the Bonds or other legally available funds of the Town. All other out-of-pocket expenses will be borne by the Purchaser. If the obligation of the Purchaser is terminated pursuant to Article V, such termination shall occur without either party incurring any liability to the other party. The Town shall have no liability with respect to the payment of expenses as provided in this Agreement if the Purchaser's obligation is so terminated except for payment of rating agency fees and expenses of printing of the Preliminary Official Statement, the Official Statement and the Bonds. -4- ARTICLE V Termination Section 5.1. The Purchaser shall have the right to terminate its obligation to purchase the Bonds by giving notice to the Town if any of the following conditions is not fulfilled: (a) At the Closing, (i) the Bond Ordinance, the Official Statement, the Registrar Agreement and this Agreement shall be in full force and effect, and shall not have been amended, modified or supplemented since the date hereof except as may have been agreed to in writing by the Purchaser, and (ii) the Town shall perform or have performed all of its obligations required to be performed prior to or simultaneously with the Closing, under or specified in the Bond Ordinance and this Agreement; (b) The Bonds shall have been duly authorized, executed and authenticated in accordance with the provisions of the Bond Ordinance; and (c) At the Closing Date, there shall have been taken by the Town in connection with the issuance of the Bonds and with the transactions contemplated thereby and by this Agreement, all such actions as, in the opinion of Bond Counsel shall be necessary and appropriate to the rendering of Bond Counsel's unqualified opinion. Section 5.2. The Purchaser shall have the right to terminate its obligation to purchase the Bonds at or before Closing, by giving notice to the Town if between the date hereof and the Closing, the market price or marketability of the Bonds, at the initial offering prices set forth in the Bond Ordinance, shall have been materially adversely affected in the judgment of the Purchaser (evidenced by a written notice to the Town terminating the obligation of the Purchaser to accept delivery of and pay for the Bonds), by reason of any of the following: (a) legislation enacted by, proposed, or introduced in Congress or recommended for passage by the President of the United States, or a statement of a member of Congress, or a decision rendered by a court established under Article III of the Constitution of the United States or by the Tax Court of the United States, or an order, ruling, regulation or official statement (final, temporary or proposed) issued or made by or on behalf of the Treasury Department of the United States or the Internal Revenue Service, with the purpose or effect, directly or indirectly, of imposing federal income taxation upon such interest as would be received by the holders of the Bonds or similar securities; (b) legislation enacted by, proposed, or introduced in Congress or recommended for passage by the President of the United States, or a statement of a member of Congress, or a decision rendered by a court established under Article III of the Constitution of the United States, or an order, ruling, regulation or official statement (final, temporary or proposed) issued or made by or on behalf of the Securities and Exchange Commission, or any other -5- governmental agency having jurisdiction of the subject matter, to the effect that obligations of the general character of the Bonds are not exempt from registration or qualification under, or other requirements of, the Securities Act of 1933, "the Securities and Exchange Act of 1934, or the Trust Indenture Act of 1939, all as amended, or that the issuance, offering or sale of the Bonds or obligations of the general character of the Bonds, including any or all underlying arrangements, as contemplated hereby or by the Official Statement, otherwise is or would be in violation of the federal securities laws as amended and then in effect; (c) the declaration of war by the United States or the occurrence of any other national emergency or calamity having an adverse effect on the effective operation of the government of or the financial community in the United States; (d) the declaration of a general banking moratorium by federal, New York, or Colorado authorities, or the general suspension of trading on any national securities exchange; (e) the imposition by the New York Stock Exchange or other national securities exchange, or any governmental authority, of any material restrictions not now in force with respect to the Bonds or obligations of the general character of the Bonds or securities generally, or the material increase of any such restrictions now in force, including without limitation those relating to the extension of credit by, or to the net capital requirements of, the Purchaser; or (f) any event occurring, or information becoming known, which, in the reasonable judgment of the Purchaser, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under v.hich they were made, not misleading. ARTICLE VI Acceptance of Agreement The submission to the Town of this Agreement, executed in duplicate by the Purchaser, constitutes an offer of the Purchaser to purchase the Bonds upon the terms and conditions stated in this Agreement. The offer by the Purchaser must be accepted by the Town no later than midnight, April 26, 1994, by adopting a resolution approving the execution of this Agreement by the Mayor of the Town. If not delivered in person, this Agreement after execution by the Town may be delivered to the Purchaser by first-class mail, provided that the Purchaser is advised by telephone or facsimile communication immediately after the mailing. This Agreement shall not be binding on either party until acceptance shall have been made by the Town in the manner stated in this paragraph. -6- It is our pleasure to present this offer to purchase the Bonds from the Town. Respectfully submitted, COUGHLIN & CO. INC. By Title: After due consideration, this Bond Purchase Agreement is hereby accepted by the Town this April 26, 1994. TOWN OF AVON, COLORADO (SEAL) Attest: h Town Clerk -7- EXHIBIT A Maturity Principal Interest Date Amount Rate Price 1994 $ 60,000 3.75% 100% 1995 120,000 4.25 100% 1996 125,000 4.70 100% 1997 130,000 5.00 100% 1998 135,000 5.20 100% 1999 140,000 5.40 100% 2000 145,000 5.60 100% 2001 150,000 5.80 100% 2002 160,000 5.90 100% 2003 165,000 6.00 100% 2004 175,000 6.15 100% 2005 185,000 6.30 100% 2006 195,000 6.45 100% 2007 205,000 6.60 100% 2008 215,000 6.70 100% 2009 230,000 6.75 100% 2010 245,000 6.80 100% 2014 1,120,000 7.00 100% A-1