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TC Res. No. 1997-60TOWN OF AVON, COLORADO _ 60 RESOLUTION APPROVING THE ISSUANCE BY EAGLEBEND AFFORDABLE HOUSING CORPORATION OF MULTIFAMILY HOUSING PROJECT REVENUE REFUNDING BONDS, SERIES 1997, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $22,860,000; AUTHORIZING AN AMENDED AND RESTATED PROJECT AGREEMENT; AND AUTHORIZING INCIDENTAL ACTION. WHEREAS, EagleBend Affordable Housing Corporation (the "Corporation") has been duly organized under the provisions of the Colorado Nonprofit Corporation Act, Articles 20 through 29 of Title 7, Colorado Revised Statutes, as amended, for the purpose of acquiring interests in real property and to construct, install and operate certain improvements in the Town of Avon (the "Town"); and WHEREAS, the Corporation has previously issued its Revenue Bonds, Series 1990A in the aggregate principal amount of $6,506,240 (the "Series 1990A Bonds"), its Revenue Bonds, Series 1990B in the aggregate principal amount of $8,984,000 (the "Series 1990B Bonds"), and its Multifamily Housing Project Revenue Bonds, Series 1995C in the aggregate principal amount of $6,330,000 (the "Series 1995C Bonds") to acquire and construct real and personal property, buildings and improvements, to provide dwelling accommodations at rentals within the means of individuals or families of low or moderate income (the "Project"), to be known as the EagleBend Affordable Housing Project; and WHEREAS, in order to refund and redeem the Series 1990A, the Series 1990B and the Series 1995C Bonds (together, the "Prior Bonds"), the Corporation intends to enter into a Trust Indenture dated as of November 1, 1997 (the "Indenture") and to issue its Multifamily Housing Project Revenue Refunding Bonds, Series 1997A, in an aggregate principal amount not to exceed $21,260,000, its Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997B, in an aggregate principal amount not to exceed $1,300,000, and its Multifamily Housing Project Subordinate Revenue Refunding Bonds, Series 1997C, in an aggregate principal amount not to exceed $300,000 (collectively, the "Series 1997 Bonds"); and WHEREAS, in order to assure that responsibility for operation of the Project is vested in the Corporation, the Town and the Corporation propose to execute and deliver an Amended and Restated Project Agreement dated as of November 1, 1997 (the "Project Agreement"), under the terms of which the Corporation is responsible to operate the Project, and title to the Project shall vest in the Town upon the end of the term of the Project Agreement; and 2 \\\DE - 67496/1 - 0029240.02 WHEREAS, proposed forms of the Indenture (including the forms of the Series 1997 Bonds contained therein) and the Project Agreement have been presented before the Town Council (the "Council") at this meeting. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: 1. Approval of the Project Agreement. The terms of the proposed Project Agreement in substantially the form presented at this meeting are hereby approved. 2. Issuance of the Series 1997 Bonds. The Series 1997 Bonds and the issuance thereof by the Corporation for the purpose of refunding and redeeming the Prior Bonds are, in all respects, hereby approved. The Series 1997 Bonds shall be issued solely as fully registered bonds without coupons in the denominations as provided in the Indenture. The Series 1997 Bonds shall bear interest payable at the rates and times and will mature in the amounts and on the dates set forth in the Indenture, as finally executed. The Series 1997 Bonds shall be issued and secured as set forth in the Indenture, and the forms, terms and provisions of the Series 1997 Bonds and the provisions for their execution, authentication, payment, registration, transfer, exchange, redemption and number shall be as set forth in the Indenture. 3. Town Action. The Mayor of the Town and the Town Clerk are hereby authorized and directed to execute and deliver such documents and to take all action necessary or reasonably required by the terms of the Project Agreement to carry out, give effect to and consummate the transactions contemplated hereby and thereby, including the execution and delivery of the Project Agreement in substantially the form presented at this meeting, with such variations or revisions thereto deemed necessary by the Mayor. Execution of the Project Agreement by the Mayor shall be deemed to be final approval by the Town of the issuance of the Series 1997 Bonds and all the provisions contained in the Project Agreement. 4. No Indebtedness of the Town. No provision of this Resolution or of the Project Agreement, the Indenture, the Series 1997 Bonds or any other instrument executed in connection therewith, shall be construed as creating an obligation on the part of the Town to pay the principal of, premium, if any, or interest on the Series 1997 Bonds, nor as creating an indebtedness or financial obligation on the part of the Town within the provisions or limitations of any statutory or constitutional provision of the laws of the State of Colorado or any provision of the home rule charter of the Town. 5. Title to Project. The Town hereby determines that it will accept title to the Project, including any additions thereto, when all the Series 1997 Bonds are fully paid and discharged. 3 WDE - 67496/1 - 0029240 02 6. Severability. If any provision of this Resolution should be held invalid, the invalidity of such provision shall not affect any of the other provisions of this Resolution, the intention being that the various provision's hereof are severable. 7. Other Actions. The appropriate officers of the Town are hereby authorized to execute and deliver for and on behalf of the Town, any or all additional certificates, documents and other papers and to perform all other acts they may deem necessary or appropriate in order to implement and carry out the matters authorized in this Resolution-and in any resolution of the Corporation. 8. Effective Date; Repealer. This Resolution shall take effect immediately upon its passage, and all acts, orders, resolutions, or parts thereof, taken by the Town in -conflict with this Resolution are hereby repealed or modified to the extent of such conflict. ADOPTED AND APPROVED this 11th day of November, 1997. TOWN OF AVON, COLORADO [SEAL] 1\\DE - 67496/1 - 0029240 02 4 M-6 - 6i-,~ B IL/ ayor The motion to adopt the foregoing Resolution was duly' seconded by Council Member Benson , put to a vote and carried upon the following vote: Those voting YES: Councilor Benson, Councilor Carnes, Councilor McIlveen, and Councilor Buz Reynolds, Jr. Those not voting: Acting Mayor Albert'Reynolds,Sr. Those absent: Mayor Jack Fawcett & Mayor Protem Judy Yoder Thereupon the Mayor declared the motion had carried and the Resolution duly passed and adopted. After consideration of other business to come before the Council, the meeting was adjourned. [SEAL] Mayor \\\DE - 6749611 - 0029240 02 5 .1~ STATE OF COLORADO ) COUNTY OF EAGLE ) ss. TOWN OF AVON ) I, Patty Lambert , the duly appointed, qualified and acting Town Clerk of the Town of Avon, Colorado, do hereby certify that the foregoing pages numbered 1 through 5, inclusive, constitute a true and correct copy of the Record of Proceedings of the Town Council of Avon, Colorado, adopted at a regular meeting of the Council held at the regular meeting place thereof in Avon, Colorado, on Tuesday, the 11th day of November, 1997, commencing at the hour of 5 : 31%., as recorded in the official Record of the Proceedings of the Town kept in my office, insofar as said proceedings relate to the Resolution contained therein; 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. WITNESS my hand and sell-as*f- its 12thday of November, 1997. .4 SEAL PiR"i Town Clerk l NNI Town of Avon, Colorado 6 \ADE - 67496/1 - 0029240 02 \\\DE - 67496/1 - 0029240.02 STATE OF COLORADO ) COUNTY OF EAGLE ss. TOWN OF AVON ) The Town Council of the Town of Avon, Colorado, met in regular session at the Town Hall in Avon, Colorado, on Tuesday, the l lth day of November, 1997, at the hour of 5 :3-1p .m. The following members of the Council were present: Jim Benson Richard Carnes Bob 14cIlveen Albert J. Reynolds, Sr. Buz.Reynolds, Jr. The following members were absent: Jack Fawcett Judy Yoder The following persons were also present: Staff members, press and public. Thereupon, Council Member Reynolds, Jr. introduced and moved the adoption of the following Resolution, which was read by title, copies thereofhaving been made available to the Council'and the public prior thereto: 1 \\\DE - 67496/1 -0029240.02 EAGLEBEND AFFORDABLE HOUSING PROJECT AMENDED AND RESTATED PROJECT AGREEMENT THIS AMENDED AND RESTATED PROJECT AGREEMENT (the "Agreement") is made as of November 1, 1997, by and between EAGLEBEND AFFORDABLE HOUSING CORPORATION, a Colorado nonprofit corporation (the "Corporation") and the TOWN OF AVON, COLORADO (the "Town"). This Agreement amends and restates the EagleBend Affordable Housing Project Operations Agreement between the Corporation and the Town dated as of October 1, 1990, as amended by an,Amendment to EagleBend Affordable Housing Project Operations Agreement dated December 1, 1,990, and a Second Amendment to EagleBend Affordable Housing Project Operations Agreement dated as of December 1, 1994 (together; the "Operations Agreement"). RECITALS: A. The Corporation has been organized under the Colorado Nonprofit Corporations Act to acquire property in order to provide affordable housing facilities, for the benefit and on behalf of the Town and its inhabitants. B. The Corporation shall issue its EagleBend Affordable Housing Corporation Multifamily Housing Project Revenue Refunding Bonds, Series 1997 (the "Series 1997 Bonds") in an aggregate principal amount not to exceed $22,860,000 for the purpose of refunding and redeeming the Corporation's Revenue Bonds, Series 1990A, Revenue Bonds, Series 1990B, and Multifamily Housing Project Revenue Bonds, Series 1995C (collectively, the "Refunded Bonds"). The Refunded Bonds were issued for the purpose of acquiring -and constructing real and personal property to be operated by the Corporation and known as the "EagleBend Affordable Housing Project" (the "Project"), located on the property described in Exhibit A hereto, to provide dwelling accommodations at rentals within the means of individuals or families of low or moderate income, as determined 'by the Board of Directors of the Corporation from time to time. C. The Series 1997 Bonds shall be issued pursuant to the Trust Indenture dated as of November 1, 1997 (the "Indenture") between the Corporation and U.S. Bank National Association, d/b/a Colorado National Bank, as Trustee (the "Trustee"). The Series 1997 Bonds and any Additional Bonds issued under the Indenture are referred to hereinafter as the "Bonds." D. The Operations Agreement was recorded in the office of the Eagle County Clerk and Recorder on November 19, 1990 in Book 542 at Page 550, on April 5, 1991 in Book 551 at Page 197, and on January 10, 1995 in Book 658 at Page 941. All capitalized terms used herein, unless otherwise defined, shall have the meanings ascribed thereto in the Indenture. \\\DE - 6749611 - 0028102.05 TERMS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Town and the Corporation, on behalf of themselves and their respective successors and assigns, agree as follows: Section 1. Project Operation . The Corporation hereby covenants and agrees to operate the Project at standards required to provide decent, safe, and sanitary housing facilities at reasonable rental rates, in a sound and economical manner, as provided in the Indenture. Nothing herein or in any resolutions of the Town shall be interpreted to require the Town to undertake responsibility for operation of the Project. The Corporation shall indemnify and hold harmless the Town, its officers, agents and employees and members of its Town Council with respect to any liability or damages arising under actions or claims against the Town as a result of the operation of the Project by the Corporation. Section 2. Town Benefit. The Corporation covenants and agrees that all activities of the Corporation shall be undertaken for the benefit of the Town. Upon termination of this Agreement, the Town shall be entitled to acquire title to the Project without cost, as provided in the Indenture. Section, 3. Right to Acquire. As further provided in Section 14.02 of the Indenture, the Town is hereby granted the right to obtain, at any time, fee title and exclusive possession of property (including the Project) financed by obligations of the Corporation (including the Bonds) free from liens and encumbrances created by the Corporation related to the Bonds (but subject to other Permitted Encumbrances, as defined in the Indenture), and any additions to such property, by (1) placing into escrow an amount that will be sufficient to defease such Bonds and other obligations, (2) paying reasonable costs incident to the defeasance, and (3) complying with all other requirements of Article XIV of the Indenture. The Town, at any time before it defeases such obligations, shall not agree or otherwise be obligated to convey any interest in such property to any person (including the United States of America or its agencies or instrumentalities) for any period extending beyond or beginning after the Town defeases such obligations. In addition, the Town shall not agree or otherwise be obligated to convey a fee interest in such property to any person who was a user thereof (or a related person), before the defeasance within 90 days after the Town defeases such obligations. Section 4. Unencumbered Title. If the Town exercises its option under Section 3, the Corporation shall immediately cancel all encumbrances on such property, including all leases and management agreements (subject to certain Permitted Encumbrances as aforesaid). Any lease, management contract, or similar encumbrance on such property will be considered immediately cancelled if the lessee, management company, or other user vacates such property within a reasonable time, not to exceed 90 days, after the date the Town exercises its rights under Section 3. 2 \\\DE - 67496/1- 0028102.05 Section 5. Default Rights. Upon the occurrence of an "Event of Default" as defined in Section 10.01 of the Indenture, the Corporation shall cause the Trustee, within five days of such occurrence, to provide notice to the Town, and the Town shall have the option to cure such Event of Default within 90 days after receipt of such notice. As provided in Section 10.02 of the Indenture, amounts advanced by the Town as a result of the exercise of this option to cure monetary defaults hereunder and reasonable, direct expenses of the Town advanced to cure nonmonetary defaults hereunder shall be deemed to be Indebtedness of the Corporation to the Town. In addition to the foregoing and consistent with Article XIV of the Indenture, if pursuant to Article X of the Indenture, the Trustee declares the principal of any Bonds then outstanding to be due and payable and any foreclosure proceeding or other action is commenced under the Indenture or the Deeds of Trust, as defined in the Indenture, which could lead to the sale or other disposition of the property pledged thereunder, the Town is hereby granted an exclusive option to purchase all such property (including the Project), for the amount of the outstanding Bonds and other indebtedness of the Corporation and accrued interest to the date of default.. The Town shall have not less than 90 days from the date it is, notified by the Trustee of such action in which to both exercise the option and purchase the property. Nothing herein shall be construed to create any obligation of the Town to cure any Event of Default. Section 6. Funds in Indenture. As required under Section 14.02 of the Indenture, in the event the Town exercises its options under Section 3 or 5 hereof, the Town shall receive a credit towards its defeasance or purchase costs in the amount of any fund or account balances held under the Indenture with the exception of (1) the Excess Investment Earnings Fund, as defined in the Indenture, (2) an amount representing Operation and Maintenance Expenses, as defined in the Indenture, required by the Corporation's current operating budget through the date of defeasance or purchase, and (3) any amount needed to pay additional interest on the Bonds or expenses in connection with such defeasance under Section 14.01 of the indenture. Section 7. Title. Unencumbered fee title (subject to certain Permitted Encumbrances as aforesaid) to the Project and any additions thereto and exclusive possession and use thereof will vest in the Town without demand or further action on its part when all obligations issued under the Indenture (including the Bonds) are discharged. For purposes of this Section 7, such obligations will be discharged when (a) cash is available at the place of payment on the date that the obligations are due (whether at maturity or upon call for redemption) and (b) interest ceases to accrue on the obligations or (c) as otherwise provided in Article XIV of the Indenture. All leases, management contracts and similar encumbrances on the Project shall terminate upon discharge of said obligations. Encumbrances that do not significantly interfere with the enjoyment of such property, such as the Permitted Encumbrances, are not considered encumbrances for purposes of this Section. Section 8. Indenture Rights: Approval of Town. The Corporation hereby covenants and agrees that the provisions of the Indenture granting any rights to the Town shall not be amended or modified without the consent of the Town. By execution hereof, the Town 3 %DE - 67496/1-002910105 hereby consents to the provisions of the Indenture relating to the rights of the Town and confirms its approval of the issuance of the Series 1997 Bonds. Section 9. Tenn . This Agreement shall terminate upon the vesting of title to the Project in the Town as herein provided. Section 10. Burden on Property. This Agreement is a burden upon and runs with the property described in Ezhibit A hereto and is binding upon the Corporation and upon all persons or entities with any right, title or interest to such property or any part thereof. This Agreement may be released therefrom in the same manner as the release of property under the Deeds of Trust executed in connection with the issuance of the Bonds. Section 11. Construction. In the event of any conflict between the terms and provisions of this Agreement and the terms and provisions of the Indenture, the terms and provisions of the Indenture shall govern. IN WITNESS WHEREOF, the undersigned have hereunto set their hand as of the day and year first mentioned above. TOWN OF AVON, COLORADO By: May r EAGLEBEND AFFORDABLE HOUSING CORPORATION By: President [SEAL] [SEAL] ATTEST: Secretary 4 \\\DE - 67496/1 - 0028102.05 STATE OF COLORADO ) ) ss. CITY AND COUNTY OF DEMVER ) The foregoing instrument was acknowledged before, me this day of November, 1997 by Gerald E. Flynn, as President, on behalf of EAGLEBEND AFFORDABLE HOUSING CORPORATION; a Colorado nonprofit corporation. WITNESS my hand and official seal. My Commission expires: [SEAL] STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Notary Public The fo 3going instrument was acknowledged before me this 3 r day of November, 1997 by ~j W~tt-, as Mayor, on behalf of the TOWN OF AVON, COLORADO. WITNESS my hand and official seal. td~Ca~oa®~i01 My Commission expires: [SEAL] U1DE - 67496/1 - 0028102.05 5 Public EXHIBIT A The following real property and all buildings and improvements, and fixtures or . appurtenances, now 'or hereafter erected thereon: LOT 2 AND TRACT A, REPLAT NUMBER 1, FINAL PLAT OF EAGLEBEND SUBDIVISION, FILING NO. 4, ACCORDING TO THE PLAT RECORDED JULY 17, 1992 IN BOOK 584 AT PAGE 995, COUNTY OF EAGLE, STATE OF COLORADO. Parcel 2 LOT 1; RIVERSIDE SUBDIVISION, TOWN OF AVON, ACCORDING TO THE FINAL PLAT RECORDED SEPTEMBER 1, 1989 ON BOOK 512 AT PAGE 802, COUNTY OF EAGLE, STATE OF COLORADO. A-1 XADE - 6749611 - 0028102.05 TOWN OF AVON, COLORADO GENERAL AND NO-LITIGATION CERTIFICATE This General and No-Litigation Certificate is delivered by the Town of Avon, Colorado (the "Town") in connection with the issuance by EagleBend Affordable Housing Corporation (the "Corporation") of $22,360,000 aggregate principal amount of its Multifamily Housing Project Revenue Refunding Bonds, Series 1997 (the 'Bonds"), pursuant to the terms of a Trust Indenture dated as of November 1, 1997 (the "Indenture") between the Corporation and U.S. Bank National Association, d/b/a Colorado National Bank, as Trustee (the "Trustee"). The proceeds of the Bonds will be used to refinance the costs of a 294-unit apartment project known as the "EagleBend Apartments" and related facilities (the "Project"). All initially-capitalized terms used in this Certificate and not otherwise defined herein shall have the meanings given such terms in the Indenture. WE, THE UNDERSIGNED OFFICIALS OF THE TOWN, HEREBY CERTIFY THAT: 1. The Town is a political subdivision of the State of Colorado with full power and authority to execute and deliver the Project Agreement, to perform its obligations thereunder and to carry out the transactions contemplated thereby to be carried out by it and has taken all proceedings and obtained all approvals required in connection therewith by applicable law. 2. Attached as Exhibit A hereto is a true, correct and complete copy of a Resolution finally approved by the Town on November 11, 1997, approving the Project Agreement between the Town and the Corporation and the issuance of the Bonds by the Corporation. Said Resolution was duly adopted by a majority of the members of the Town Council of the Town in accordance with Colorado law at a duly noticed regular public meeting of the Town Council, the convening of such meeting and the adoption of such -Resolution being in accordance with all requirements of law, the Home Rule Charter of the Town and procedural rules of the Town Council. Such Resolution has not been repealed, amended or modified since its adoption and is in full force and effect on the date hereof. 3. The Town has authorized, by all necessary official action, the execution, delivery, and due performance of the Project Agreement and any and all such other agreements and documents as may be required to be executed, delivered and received by the Town in order to carry out, give effect to and consummate the transactions contemplated by the Project Agreement. The Project Agreement-was duly executed and delivered on behalf of the Town by Jack Fawcett , as Mayor and attested on behalf of the Town by Patty Lambert, as Clerk; the signatures of said officers thereon are their respective genuine signatures; and the seal thereunto affixed is the official seal of the Town. 4. To the best of the knowledge of the undersigned officers, there is no action, suit, proceeding or investigation at law or in equity, before or by any court or any federal, state or local governmental authority, or agency, pending or, to. the knowledge of the Town, threatened against the Town (a) wherein an unfavorable decision, finding or ruling would contest or adversely affect the Corporation, the Project, the enforceability of or the authority or ability of the Town to perform its obligations under the Project Agreement or the existence or powers of the Town or its governing body or officials, or (b) to contest, restrain or enjoin the issuance or sale of the Bonds, the adoption of the Town Resolution approving the Bonds, the execution and delivery of the Project Agreement or compliance by the Town with the provisions thereof 5. The Corporation has no taxing power. The Corporation does not receive any support from any Town fund, and the Town expects the Corporation to continue operating as a business on a self-supporting basis and without reliance on grants or subsidies from the Town, the State of Colorado or other local governments, whether in the form of cash, services, construction, repair or maintenance of Corporation assets, or any other thing of value. IN WITNESS WHEREOF, we hereunto set our respective signatures as such officials of the Town and have affixed the seal of the Town as of the 20th day of November, 1997. [SEAL] Attest: VTE - 67496/1- 0030346.01 2 TOWN OF AVON, COLORADO By 1&~ ayor