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TC Res. No. 2011-13 Authorizing the execution and delivery of a master equipment lease purchase agreement and separate lease scheduleTOWN OF AVON, COLORADO RESOLUTION 11 -13 SERIES OF 2011 A RESOLUTION OF THE TOWN COUNCIL OF TOWN OF AVON, AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER EQUIPMENT LEASE - PURCHASE AGREEMENT AND SEPARATE LEASE SCHEDULE WITH RESPECT TO THE ACQUISITION, PURCHASE, FINANCING AND LEASING OF CERTAIN EQUIPMENT FOR THE PUBLIC BENEFIT; AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING THE TAKING OF ALL OTHER —�'— --" - - - ACTIONS— NECESSARY —TO--THE— CONSUKNtATION -- OF - "THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION. WHEREAS, Town of Avon (the "Lessee"), a body politic and corporate duly organized and existing as a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado, is authorized by the laws of the State of Colorado to purchase, acquire and lease personal property for the benefit of the Lessee and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, the Lessee desires to purchase, acquire and lease certain equipment constituting personal property necessary for the Lessee to perform essential governmental functions; and WHEREAS, in order to acquire such equipment, the Lessee proposes to enter into that certain Master Tax- Exempt Lease/Purchase Agreement (the "Agreement") and separate Lease Schedules and Escrow Agreements from time to time as provided in the Agreement with U.S BANCORP EQUIPMENT FINANCE, INC. (the "Lessor "), the forms of which have been presented to the governing body of the Lessee at this meeting; and WHEREAS, the governing body of the Lessee deems it for the benefit of the Lessee and for the efficient and effective administration thereof to enter into the Agreement and the separate Lease Schedules and Escrow Agreements as provided in the Agreement for the purchase, acquisition and leasing of the equipment therein described on the terns and conditions therein provided. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section LAPProval of Documents. The form, terms and provisions of the Agreement and the separate Lease Schedules and Escrow Agreement as provided in the Agreement are hereby approved in substantially the form presented at this meeting, with such insertions, omissions and changes as shall be approved by the Mayor of the Lessee or other members of the governing Resolution I l- Master Equipment Lease- Purchase Agreement US Bank MVH 8.15.11 Page 1 of 3 body of the Lessee executing the same, the execution of such documents being conclusive evidence of such approval; and the Mayor of the Lessee is hereby authorized and directed to execute, and the Town Clerk of the Lessee is hereby authorized and directed to attest and countersign, the Agreement and each Lease Schedule and Escrow Agreement and any related Exhibits attached thereto and to deliver the Agreement and each Lease Schedule and Escrow Agreement (including such Exhibits) to the respective parties thereto, and the Town Clerk of the Lessee is hereby authorized to affix the seal of the Lessee to such documents. Section 2.Other Actions Authorized. The officers and employees of the Lessee shall take all action necessary or reasonably required by the parties to the Agreement and each Lease Schedule and Escrow Agreement to cant' out, give effect to and consummate the transactions contemplated thereby (including the execution and delivery of the Acceptance Certificate contemplated in tile 2VI—reement -an -any t Cate -an agreement, —eac spect -to - -- separate Lease Schedules, as provided in the Agreement) and to take all action necessary in conformity therewith, including, without limitation, the execution and delivery of any closing and other documents required to be delivered in connection with the Agreement and each Lease Schedule. Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, any Lease Schedule, nor any other instrument shall be construed with respect to the Lessee as incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing power, nor shall the breach of any agreement contained in this Resolution, the Agreement, any Lease Schedule, or any other instrument or document executed in connection therewith impose any pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing power, except to the extent that the Rental Payments payable under each Lease are special limited obligations of the Lessee as provided in such Lease. Section 4. Appointment of Authorized Lessee Representatives. The Town Manager and Assistant Town Manager of the Lessee are each hereby designated to act as authorized representatives of the Lessee for purposes of the Agreement and each Lease Schedule until such time as the governing body of the Lessee shall designate any other or different authorized representative for purposes of the Agreement and each Lease Schedule. Section 5. Section 265(b)(3) Designation. Lessee hereby designates the Agreement as a "qualified tax- exempt obligation" for the purposes and within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. Section 6. 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 8. Effective Date. This Resolution shall be effective immediately upon its approval and adoption. Resolution 11- Master Equipment Lease - Purchase Agreement US Bank MVH 8.15.11 Page 2 of 3 ACCEPTED, APPROVED AND ADOPTED August; A 2011. AVON TOWN COUNCIL -,OWN 0,S By: S Rich Carroll, Mayor [Seal] 4 T . Attest: ado, - Pa,ti; tM Kenny; To Resolution 11- Master Equipment Lease- Purchase Agreement US Bank MVH 8.15.11 Page 3 of 3 W DOCUMENT CHECKLIST PLEASE PROVIDE TWO (2) EXECUTED ORIGINALS OF THE MASTER TAX - EXEMPT LEASE PURCHASE AGREEMENT AND THREE (3) EXECUTED ORIGINALS OF THE ESCROW AGREEMENT ➢ Master Tax - Exempt Lease Purchase Agreement – This document must be executed in the presence of a witness /attestor. The attesting witness does not have to be a notary, just present at the time of execution. ➢ Addendum to Master Tax - Exempt Lease Purchase Agreement –This document must be executed in the presence of a witness /attestor. The attesting witness does not have to be a notary, just present at the time of execution. ➢ Property Schedule No. 01 - This document must be executed in the presence of a witness /attestor. The attegtt -wt ae ve-to-bea net�ry; just present'at-tfiCime of execution. " –�- -W- ➢ Property Description and Payment Schedule – Exhibit 1– This document must be executed. ➢ Lessee's Counsel's Opinion – Exhibit 2. This exhibit will need to be executed by your attorney, dated and placed on their letterhead. Your attorney will likely want to review the agreement prior to executing this opinion. ➢ Lessee's Certificate – Exhibit 3. 1) Please fill in the person's title who will be executing the certificate in the first paragraph (note: the person who signs this exhibit can not be the same person as the executing official(s) for all other documents); 2) Please fill in the date that the governing body met in Line l; 3) In the middle set of boxes, please print the name of the executing official(s) in the far left box, print their title(s) in the middle box and have the executing official(s) sign the line in the far right hand box; 4) Include in your return package a copy of the board minutes or resolution for our files; and 5) The exhibit should be executed by someone other than the executing official(s) named in the center box. 5- Payment of Proceeds Instructions – Exhibit 4. This is for the vendor payment information. if more than one vendor is being paid please make copies of this exhibit and fill out as many as are needed. You will not need to fill this out until you have a Disbursement Request from the Escrow Account. ➢ Acceptance Certificate – Exhibit 5. The date that all equipment is delivered, installed and accepted is the date that should be placed on the "DATE" line. If moneys are being deposited into escrow this exhibit should be held and returned with the final disbursement from the escrow account. ➢ Bank Qualification and Arbitrage Rebate – Exhibit 6 – This document will need to be executed. ➢ Insurance Authorization and Verification – To be filled out by the Lessee and sent to your insurance carrier. A valid insurance certificate, or self - insurance letter if the Lessee self insures, is required prior to funding. ➢ Vehicle Titling Memo - This document will need to be executed and the original titles should show USBEF as I" lien holder. The originals will have to be sent to USBEF to hold until lease is paid in full. Form 8038 -G or GC – Blank form and instructions provided to Lessee. Please consult your local legal/bond counsel to fill out. ➢ Escrow Agreement – This document must be executed on the following pages: • Page 5 – Signature Page • Exhibit 1– Investment Direction Letter • The remaining pages are left un- executed until a disbursement from the escrow account is requested Master Tax - Exempt Lease/Purchase Agreement Between: U.S. Bancorp Equipment Finance. Inc. (the "Lessor ") 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 And: Town of Avon (the "Lessee ") PO Box 975 Avon, CO 81620 Attention: Scott Wright Telephone: 970 - 748 -4055 Dated: Aut7ust 26, 2011 - -- -- — -- - - -- -- - — — - --- -- -- -- -ARTICLE DEFINITIONS The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Agreement" means this Master Tax - Exempt Lease/Purchase Agreement, including all exhibits and schedules attached hereto. "Code" is defined in Section 3.01(f). "Commencement Date" is the date when the tern of a Property Schedule and Lessee's obligation to pay rent thereunder commences, which date shall be set forth in such Property Schedule. "Event of Default" is defined in Section 13.01. "Lease Payments" means the Lease Payments payable by Lessee under Article VI of this Agreement and each Property Schedule, as set forth in each Property Schedule. Lease Payment Dates" means the Lease Payment dates for the Lease Payments as set forth in each Property Schedule. "Lease Term" means, with respect to a Property Schedule, the Original Term and all Renewal Terms. The Lease Term for each Property Schedule executed hereunder shall be set forth in such Property Schedule, as provided in Section 4.02. "Lessee" means the entity identified as such in the first paragraph hereof, and its permitted successors and assigns. "Lessor" means the entity identified as such in the first paragraph hereof, and its successors and assigns. "Nonappropriation Event" is defined in Section 6.06. "Original Term" means, with respect to a Property Schedule, the period from the Commencement Date until the end ofthe budget year of Lessee in effect at the Commencement Date. "Property" means, collectively, the property lease/purchased pursuant to this Agreement, and with respect to each Property Schedule, the property described in such Property Schedule, and all replacements, repairs, restorations, modifications and improvements thereofor thereto made pursuant to Section 8.01 or Article 1X. "Property Schedule" means a Property Schedule in the form attached hereto for Property Schedule I. Subsequent Property Schedules pursuant to this Agreement shall be numbered consecutively, beginning with Property Schedule 2. "Purchase Price" means the amount that Lessee tray, in its discretion, pay to Lessor to purchase the Property under a Property Schedule, as provided in Section 11.01 and as set forth in the Property Schedule. "Renewal Terms" means the renewal terms of a Property Schedule, each having a duration of one year and a term coextensive with Lessee's budget year, "State" means the state where Lessee is located. "Vendor" means the manufacturer or contractor of the Property as well as the agents or dealers of the manufacturer or contractor from whom Lessor or Lessee purchased or is purchasing all or any portion of the Property. ARTICLE 11 2.01 Property Schedules Separate Financings. Each Property Schedule executed and delivered under this Agreement shall be a separate financing, distinct fiotn other Property Schedules. Without limiting the foregoing, upon the occurrence of an Event of Default or a Nonappropriation Event with respect to a Property Schedule, Lessor shall have the rights and remedies specified herein with respect to the Property financed and the Lease Payments payable under such Property Schedule, and except as expressly provided in Section 12.02 below, Lessor shall have no rights or remedies with respect to Property financed or Lease Payments payable under any other Property Schedules unless an Event of Defoult or Nonappropriation Event has also occurred under such other Property Schedules. ARTICLE III 3.01 Covenants of Lessee As of the Commencement Date for each Property Schedule executed and delivered hereunder, Lessee shall be deemed to represent, covenant and warrant for the benefit of Lessor as follows: (a) Lessee is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority to enter into this Agreement and the Property Schedule and the transactions contemplated thereby and to perform all of its obligations thereunder. (b) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. To the extent Lessee should merge with another entity under the laws of the State, Lessee agrees that as a condition to such merger it will require that the remaining or resulting entity shall be assigned Lessee's rights and shall assume Lessee's obligations hereunder. (c) Lessee has been duly authorized to execute and deliver this Agreement and the Property Schedule by proper action by its governing body, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Property Schedule, and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the Property Schedule and the acquisition by Lessee of tho Property thereunder, On or before the Commencement Date for the Property Schedule, Lessee shall cause to be delivered an opinion of counsel in substantially the form attached to the form of the Property Schedule as Exhibit 2. DWT 8732378v4 0085238- 000001 (d) During the Lease Tenn for the Property Schedule, the Property thereunder will perform and will be used by Lessee only for the purpose of performing essential governmental uses and public functions within the permissible scope of Lessee's authority. (e) Lessee will provide Lessor with current financial statements, budgets and proof of appropriation for the ensuing budget year and other financial information relating to the ability of Lessee to continue this Agreement and the Property Schedule in such form and containing such information as may be requested by Lessor. (f) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code "), including Sections 103 and 148 thereof, and the regula. tions of the Treasury Department thereunder, from time to time proposed or in effect, in order to maintain the excludability from gross income for federal income tax purposes of the interest component of Lease Payments under the Property Schedule and will not use or permit the use of the Property in such a manner as to cause a Property Schedule to be a "private activity bond" under Section 141(a) of the Code. Lessee covenants and agrees that it will use the proceeds of the Property Schedule as soon as practicable and with all reasonable dispatch for the purpose for which the Property Schedule has been entered into, and that no part of the proceeds of the Property Schedule shall be invested in any securities, obligations or other investments except for the temporary period pending such use nor used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of the Agreement, would have caused any portion of the Property Schedule to be or become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in effect at the time of such use and applicable to obligations issued on the date of issuance of the Property Schedule. (g) The execution, delivery and performance of this Agreement and the Property Schedule and compliance with the provisions hereof and thereof by Lessee does not conflict with or result in a violation or breach or constitute a default under, any resolution, bond, agreement, indenture, mortgage, note, lease or other instrument to which Lessee is a party or by which it is bound by any law or any rule, regulation, order or decree of any court, governmental agency or body having jurisdiction over Lessee or any of its activities or properties resulting in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any property or assets of Lessee or to which it is subject. (h) Lessee's exact legal name is asset forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior notice to Lessor. - -- !R tTl— CLElV 4.01 lease of Property. On the Commencement Date of each Property Schedule executed hereunder, Lessor will be deemed to demise, lease and let to Lessee, and Lessee will be deemed to rent, lease and hire from Lessor, the Property described in such Property Schedule, in accordance with this Agreement and such Property Schedule, for the Lease Term set forth in such Property Schedule. 4.01 Lease Term. The term of each Property Schedule shall commence on the Commencement Date set forth therein and shall terminate upon payment of the final Lease Payment set forth in such Property Schedule and the exercise of the Purchase Option described in Section 11.0 1, unless terminated sooner pursuant to this Agreement or the Property Schedule. 4.03 Delivery, Installation and Acceptance of Property. Lessee shall order the Property, shall cause the Property to be delivered and installed at the locations specified in the applicable Property Schedule and shall pay all taxes, delivery costs and installation costs, if any, in connection therewith. To the extent funds are deposited under an escrow agreement or trust agreement for the acquisition of the Property, such funds shall be disbursed as provided therein. When the Property described in such Property Schedule is delivered, installed and accepted as to Lessee's specifications, Lessee shall immediately accept the Property and evidence said acceptance by executing and delivering to Lessor the Acceptance Certificate substantially in the form attached to the Property Schedule. ARTICLE V 5.01 Eniovment of Property. Lessee shall during the Lease Tenn peaceably and quietly have, hold and enjoy the Property, without suit, trouble or hindrance from Lessor, except as expressly set forth in this Agreement. Lessor shall not interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the subject Property Schedule. 5.02 Location: Inspection The Property will be initially located or based at the location specified in the applicable Property Schedule. Lessor shall have the right at all reasonable times during business hours to enter into and upon the property of Lessee for the purpose of inspecting the Property. ARTICLE VI 6.01 Lease Payments to Constitute a Current Expense of Lessee Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional, statutory or charter limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the faith and credit or taxing power of Lessee. Upon the appropriation of Lease Payments for a fiscal year, the Lease Payments for said fiscal year, and only the Lease Payments for said current fiscal year, shall be a binding obligation of Lessee; provided that such obligation shall not include a pledge of the taxing power of Lessee. 6.02 Payment of Lease Payments Lessee shall promptly pay Lease Payments under each Property Schedule, exclusively from legally available funds, in lawful money ofthe United States of America, to Lessor in such amounts and on such dates as described in the applicable Property Schedule, at Lessors address set forth on the first page of this Agreement, unless Lessor instructs Lessee otherwise. Lessee shall pay Lessor a charge on any delinquent Lease Payments under a Property Schedule in an amount sufficient to cover all additional costs and expenses incurred by Lessor from such delinquent Lease Payment. In addition, Lessee shall pay a late charge of five cents per dollar or the highest amount permitted by applicable law, whichever is lower, on all delinquent Lease Payments and interest on said delinquent amounts from the date such amounts were due until paid at the rate of 12% per annum or the maximum amount permitted by law, whichever is less.. 6.03 Interest Component A portion of each Lease Payment due under each Property Schedule is paid as, and represents payment of, interest, and each Property Schedule hereunder shall set forth the interest component (or method of computation thereof) of each Lease Payment thereunder during the Lease Term. 6.04 Lease Payments to be Unconditional SUBJECT TO SECTION 6.06, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY SCHEDULES AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR AS PROVIDED IN SECTION 10.02. 6.05 Continuation of Lease by Lessee. Lessee intends to continue all Property Schedules entered into pursuant to this Agreement and to pay the Lease Payments thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to make all Lease Payments during the term of all Property Schedules can be obtained. Lessee agrees that its staff will provide during the budgeting process for each budget year to the governing body of Lessee notification of any Lease Payments due under the Property Schedules during the following budget year. Notwithstanding this covenant, if Lessee fails to appropriate the Lease Payments for a Property Schedule pursuant to Section 6.06, such Property Schedule shall terminate at the end of the then current Original Term or Renewal Term. Although Lessee has made this covenant, in the event that it fails to provide such notice, no remedy is provided and Lessee shall not be liable for any damages for its failure to so comply. 6.06 Nonappropriation. If during the then current Original Tenn or Renewal Term, sufficient funds are not appropriated to make Lease Payments required under a Property Schedule for the following fiscal year, Lessee shall be deemed to not have renewed such Property Schedule for the following fiscal year and the Property Schedule shall terminate at the end of the then current Original Term or Renewal Term and Lessee shall not be obligated to make Lease Payments under said Property Schedule beyond the then current fiscal year for which funds have been appropriated. Upon the occurrence of such nonappropriation (a "Nonapproptiation Event ") Lessee shall, no later than the end of the fiscal year for which Lease Payments have been appropriated, deliver possession of the Property under said Property Schedule to Lessor. If Lessee fails to deliver possession of the Property to Lessor upon termination of said Property Schedule by reason of a Nonappropriation Event, the termination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion of Lease Payments thereafter coming due that is attributable to the number of days after the termination during which the Lessee fails to deliver possession and for any other loss suffered by Lessor as a result of Lessee's failure to deliver possession as required. In addition, Lessor may, by written instructions to any escrow agent who is holding proceeds of the Property Schedule, instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to Lessee's obligations under the Property Schedule and this Agreement. Lessee shall notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such notice shall not operate to extend the Lease Term or result in any liability to Lessee. DWT 8732378v4 0085238- 000001 6.07 Defeasance of Lease Payments Lessee may at any time irrevocably deposit in escrow with a defcasance escrow agent for the purpose of paying all of the principal component and interest component accruing under a Property Schedule, a sum of cash and non - callable securities consisting of direct obligations of, or obligations the principal of an interest on which are unconditionally guaranteed by, the United States of America or any agency or instrumentality thereof, in such aggregate amount, bearing interest at such rates and maturing on such dates as shall be required to provide funds sufficient for this purpose. Upon such defeasance, all right, title and interest of Lessor in the Property under said Property Schedule shall terminate. Lessee shall cause such investment to comply with the requirements of federal tax law so that the exclusion from gross income of the interest component of Lease Payments on said Property Schedule is not adversely affected. ARTICLE VII 7.01 Title to the Property. Upon acceptance of the Property by Lessee and unless otherwise required by the laws of the State, title to the Property shall vest in Lessee, subject to Lessor's interests under the applicable Property Schedule and this Agreement. 7.02 Personal Property, The Property is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwith- standing that the Property or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Property from any party having an interest in any such real estate or building. 7.03 Security Interest To the extent permitted by law and to secure the performance of all of Lessee's obligations under this Agreement with respect to a Property Schedule, including without limitation all Property Schedules now existing are hereafter executed, Lessee grants to Lessor, for the benefit of Lessor and its successors and assigns, a security interest constituting a first lien on Lessee's interest in all of the Property under the Property Schedule, whether now owned or hereafter acquired, all additions, attachments, alterations and accessions to the Property, all substitutions and replacements for the Property, and on any proceeds of any of the foregoing, including insurance proceeds. Lessee shall execute any additional documents, including financing statements, affidavits, notices and similar instruments, in form and substance satisfactory to Lessor, which Lessor deems necessary or appropriate to establish, maintain and perfect a security interest in the Property in favor of Lessor and its successors and assigns. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest. ARTICLE VIII 8.01 Maintenance of Property by Lessee Lessee shall keep and maintain the Property in good condition and working order and in compliance with the manufacturer's specifications, shall use, operate and maintain the Property in conformity with all laws and regulations concerning the Property's ownership, possession, use and maintenance, and shall keep the Property free and clear of all liens and claims, other than those created by this Agreement. Lessee shall have sole responsibility to maintain and repair the Property. Should Lessee fnil to maintain, preserve and keep the Property in good repair and working order and in accordance with manufacturer's specifications, and if requested by Lessor, Lessee will enter into maintenance contracts for the Property in form approved by Lessor and with approved providers. 8.02 Liens. Taxes, Other Governmental Charles and Utility Charees. Lessee shall keep the Property free of all levies, liens and encumbrances, except for the interest of Lessor under this Agreement. The parties to this Agreement contemplate that the Property will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Property will be exempt from all property taxes. The Lease Payments payable by Lessee under this Agreement and the Property Schedules hereunder have been established to reflect the savings resulting from this exemption from taxation. Lessee will take such actions necessary under applicable law to obtain said exemption. Nevertheless, if the use, possession or acquisition of the Property is determined to be subject to taxation or later becomes subject to such taxes, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to the Property. Lessee shall pay all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Property. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during the then current fiscal year of the Lease Term for such Property. 8.03 Insuranc . At its own expense, Lessee shall maintain (a) casualty insurance insuring the Property against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount equal to at least the outstanding principal component of Lease Payments, and (b) liability insurance that protects Lessor from liability in all events in an amount reasonably acceptable to Lessor, and (c) workers compensation insurance covering all employees working on, in, near or about the Property; provided that Lessee may self -insure against all such risks. All insurance proceeds from casualty losses shall be payable as hereinafter provided in this Agreement. All such insurance shall be with insurers that are authorized to issue such insurance in the State All such liability insurance shall name Lessor as an additional insured. All such casualty insurance shall contain a provision making any losses payable to Lessor and Lessee as their respective interests may appear. All such insurance shall contain a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such cancellation or modification. Such changes shall not become effective without Lesso's prior written consent. Lessee shall furnish to Lessor, on or before the Commencement Date for each Property Schedule, and thereafter at Lessor's request, certificates evidencing such coverage, or, if Lessee self- insures, a written description of its self - insurance program together with a certification from Lessee's risk manager or insurance agent or consultant to the effect that Lessee's self - insurance program provides adequate coverage against the risks listed above. 8.04 Advanc es In the event Lessee shall fail to either maintain the insurance required by this Agreement or keep the Property in good repair and working order, Lessor may, but shall be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof or maintain and repair the Property and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the Lease Term for the applicable Property Schedule and shall be due and payable on the next Lease Payment Date and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the date such amounts are advanced until paid at the rate of 12% per annum or the maximum amount permitted by low, whichever is less. 9.01 Damate or Destruction. If (a) the Property under a Property Schedule or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty, or (b) title to, or the temporary use of, the Property under a Property Schedule or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, Lessor and Lessee will cause the Net Proceeds (as hereinafter defined) of arty insurance claim, condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Property, unless Lessee shall have exercised its right to defense the Property Schedule as provided herein, or unless Lessee shall have exercised its option to purchase Lessors interest in the Property if the Property Schedule so provides. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article IX, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof. 9.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01, Lessee shall (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds and, if Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Section 6.02, or (b) defense the Property Schedule pursuant to Section 6.07, or (c) exercise its option to purchase Lessors interest in the Property pursuant to the optional purchase provisions of the Property Schedule, if any. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after such defeasance or purchase may be retained by Lessee. DWT 8732378v4 0085238 - 000001 ARTICLE X 10.01 Disclaimer of Warranties. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; IT BEING UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY, WHICHEVER 1S LATER, AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. Lessee acknowledges that it has made (or will make) the selection of the Property from the Vendor based on its own judgment and expressly disclaims any reliance upon any statements or representations made by Lessor. Lessee understands and agrees that (a) neither the Vendor nor any sales representative or other agent of Vendor, is (i) an agent of Lessor, or (ii) authorized to make or alter any term or condition of this Agreement, and (b) no such waiver or alteration shall vary the terms of this Agreement unless expressly set forth herein. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, the Property Schedules, or the existence, furnishing, functioning or use of any item, product or service provided for in this Agreement or the Property Schedules. 10.02 Vendor's Warranties. Lessor hereby irrevocably assigns to Lessee all rights that Lessor may have to assert from time to time whatever claims and rights (including without limitation warranties) related to the Property against the Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the Property, and not against Lessor, nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties of the Vendor of the Property. 10.03 Use of the Property. Lessee will not install, use, operate or maintain the Property improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement and the applicable Property Schedule. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Property. In addition, Lessee agrees to comply in all respects with all laws of the jurisdiction in which its operations involving any item of Property may extend and any legislative, executive, administrative or judicial body exercising any power or jurisdiction over the items of the Property; provided that Lessee may contest in good faith the validity or application of any such law or rule in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Property or its interest or rights under this Agreement. Lessee shall promptly notify Lessor in writing of any pending or threatened investigation, inquiry, claim or action by any governmental authority which could adversely affect this Agreement, any 10.04 Modifications. Subject to the provisions of this Section, Lessee shall have the right, at its own expense, to make alterations, additions, modifirations or improvements to the Property. All such alterations, additions, modifications and improvements shall thereafter comprise part of the Property and shall be subject to the provisions of this Agreement. Such alterations, additions, modifications and improvements shall not in any way damage the Property, substantially alter its nature or cause it to be used for purposes other than those authorized under the provisions of state and federal law; and the Property, on completion of any alterations, additions, modifications or improvements made pursuant to this Section, shall be of a value which is equal to or greater than the value of the Property immediately prior to the making of such alterations, additions, modifications and improvements. Lessee shall, at its own expense, make such alterations, additions, modifications and improvements to the Property as may be required from time to time by applicable law or by any governmental authority. ARTICLE XI 11.01 Option to Purchase Lessee shall have the option to purchase Lessors entire interest in all of the Property subject to a Property Schedule and to terminate any restrictions herein on the Property under such Property Schedule on the last day of the Lease Term for a Property Schedule, if the Property Schedule is still in effect on such day, upon payment in full of the Lease Payments due thereunder plus payment of One( I) Dollar to Lessor. Lessee shall give written notice to Lessor of its intent to purchase Lessor's interest in the Property at least sixty (60) days prior to the last day of the Lease Term for applicable Property Schedule. Upon exercise of the purchase option asset forth in this Section 11.01 and payment of the purchase price under the applicable Property Schedule, and performance by Lessee of all other terms, conditions and provisions hereof, Lessor shall deliver to Lessee all such documents and instruments as Lessee may reasonably require to evidence the transfer, without warranty by or recourse to Lessor, of all of Lessor's right, title and interest in and to the Property subject to such Property Schedule to Lessee. 11.02 Option to Prepay. Lessee shall have the option to prepay in whole the Lease Payments due under a Property Schedule, but only if the Property Schedule so provides, and on the terms set forth in the Property Schedule. ARTICLE Xll 12.01 Assignment by Lessor. Lessor's right, title and interest in, to and under each Property Schedule and the Property under such Property Schedule may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor without the necessity of obtaining the consent of Lessee; provided that any assignment shall not be effective until Lessee has received written notice, signed by the assignor, of the name, address and tax identification number of the assignee. Lessee shall retain all such notices as a register of al l assignees and shall make all payments to the assignee or assignees designated in such register. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements that may be reasonably requested by Lessor or any assignee to protect its interests in this Agreement and the Property Schedules. 12.02 Property Schedues Separate Financings. Assignees of the Lessors rights in one Property Schedule shall have no rights in any other Property Schedule unless such rights have been separately assigned.. 12.03 Assignment and Subleasing by Lessee. NONE OF LESSEE'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THIS AGREEMENT AND IN THE PROPERTY MAY BE ASSIGNED, SUBLEASED OR ENCUMBERED BY LESSEE FOR ANY REASON, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. 12.04 Release and Indemnification Covenants. To the extent permitted by applicable law, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and against any and all liability, obligation, loss, claim and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith, including, without limitation, counsel fees and expenses, penalties and interest (collectively, "Losses") arising out of or resulting from the entering into this Agreement, any Property Schedules hereunder, the ownership of any item of the Property, the loss of federal tax exemption of the interest on any of the Property Schedules, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Property or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Property resulting in damage to property or injury to or death to any person; provided, however, that Lessee shall not be required to indemnify Lessor for Losses arising out of or resulting from Lessor's own willful or negligent conduct, or for Losses arising out of or resulting from Lessor preparation of disclosure material relating to certificates of participation in this Agreement and any Property Schedule (other than disclosure material provided to Lessor by Lessee). The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement, or the applicable Property Schedule, or the termination of the Lease Term for such Property Schedule for any reason. ARTICLE X111 13.01 Events of Default Defined. Any of the following shall constitute an "Event of Default" under a Property Schedule: (a) Failure by Lessee to pay any Lease Payment under the Property Schedule or other payment required to be paid with respect thereto at the time specified therein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed with respect to the Property Schedule, other than as referred to in subparagraph (a) above, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to the Property Schedule or its execution, delivery or performance shall prove to have been false, incorrect, misleading or breached in any material respect on the date when made; (d) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or DWT 8732378v4 0085238 - 000001 (e) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days. The foregoing provisions of Section 13.01 are subject to the following limitation: if by reason of force maieure Lessee is unable in whole or in part to perform its agreements under this Agreement and the Property Schedule (other than the obligations on the part of Lessee contained in Article VI hereof) Lessee shall not be in default during the continuance of such inability. The term "force maieuro" as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the government of the United States or of the State or any of their departments, agencies or officials, or any civil or military authority; insurrections, riots, landslides, earthquakes, fires, storms, droughts, floods, explosions, breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee. A Nonappropriation Event is not an Event of Default. 13.02 Remedies on Default. Whenever any Event of Default exists with respect to a Property Schedule. Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) Without tenninating the Property Schedule, and by written notice to Lessee, Lessor may declare all Lease Payments and other amounts payable by Lessee thereunder to the end of the then - current budget year of Lessee to be due, including without limitation delinquent Lease Payments under the Property Schedule from prior budget years, and such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law, whichever is less; (b) Lessor may terminate the Property Schedule, may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or require Lessee, at Lessee's expense, to promptly return any or all of the Property to the possession of Lessor at such place within the United States as Lessor shall specify, and Lessor may thereafter dispose of the Property in accordance with Article 9 of the Uniform Commercial Code in effect in the State; provided, however, that any proceeds from the disposition of the property in excess of the sum required to (i) pay off any outstanding principal component of Lease Payments, (ii) pay any other amounts then due under the Property Schedule, and (iii) pay Lessor's costs and expenses associated with the disposition of the Property (including attorneys fees), shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee except with respect to unpaid costs and expenses incurred by Lessor in connection with the disposition of the Property; _ r_ (c) By written notice to any escrow agent who is holding proceeds of the Property Schedule, Lessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to payment of Lessees obligations under the Property Schedule; (d) Lessor may take any action, at law or in equity, that is permitted by applicable law and that may appear necessary or desirable to enforce or to protect any of its rights under the Property Schedule and this Agreement. Notwithstanding the foregoing, if the proceeds are insufficient to pay items (i) to (iii) in Section 13.02(b) in whole, Lessee shall remain obligated after application of proceeds to items (i) and (ii), to pay in whole the amounts for item (iii). 13.03 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article. 13.04 Costs and Attorney Fees. Upon the occurrence of an Event of Default by Lessee in the performance of any term of this Agreement, Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due hereunder, all of Lessor's costs of collection, including reasonable attorney fees, whether or not suitor action is filed thereon. Any such costs shall be immediately due and payable upon written notice and demand given to Lessee, shall be secured by this Agreement until paid and shall bear interest at the rate of 12 %per annum or the maximum amount permitted bylaw, whichever is less. In the event suitor action is instituted to enforce any of the terms of this Agreement, the prevailing parry shall be entitled to recover from the other party such sum as the coun may adjudge reasonable as attorneys' fees at trial or on appeal of such suitor action or in any bankruptcy proceeding, in addition to all other sums provided by law. ARTICLE XIV 14.01 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either parry hereto shall designate in writing to the other for notices to such parry), to any assignee at its address as it appears on the registration books maintained by Lessee. 14.02 Arbitrate Certificates. Unless a separate Arbitrage Certificate is delivered on the Commencement Date, Lessee shall be deemed to make the following representations and covenants as of the Commencement Date for each Property Schedule: (a) The estimated total costs, including taxes, freight, installation, cost of issuance, of the Property under the Property Schedule will not be less than the total principal amount of the Lease Payments. (b) The Property under the Property Schedule has been ordered or is expected to be ordered within six months after the Commencement Date and the Property is expected to be delivered and installed and the Vendor fully paid, within eighteen months from the Commencement Date. Lessee will pursue the completion of the Property and the expenditure of the net proceeds of the Property Schedule with due diligence. (c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the Lease Payments under the Property Schedule, or (ii) that may be used solely to prevent a default in the payment of the Lease Payments under the Property Schedule. (d) The Property under the Property Schedule has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last maturity of the Lease Payments under the Property Schedule. (e) There are no other obligations of Lessee which (i) are being sold within 15 days of the Commencement Date of the Property Schedule; (ii) are being sold pursuant to the same plan of financing as the Property Schedule; and (iii) are expected to be paid from substantially the same source of funds. (f) The officer or official who has executed the Property Schedule on Lessee's behalf is familiar with Lessee's expectations regarding the use and expenditure of the proceeds of the Property Schedule. To the best of Lessee's knowledge, information and belief, the facts and estimates set forth in herein are accurate and the expectations of Lessee set forth herein are reasonable. 14.03 Further Assurances. Lessee agrees to execute such other and further documents, including, without limitation, confirmatory financing statements, continuation statements, certificates of title and the like, and to take all such action as may be necessary or appropriate, from time to time, in the reasonable opinion of Lessor, to perfect, confirm, establish, reestablish, continue, or complete the interests of Lessor in this Agreement and the Property Schedules, to consummate the transactions contemplated hereby and thereby, and to carry out the purposes and intentions of this Agreement and the Property Schedules. 14.04 Bindint Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. 14.05 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 14.06 Waiver of Jury Trials. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, ton or otherwise) arising out of or relating to this Agreement or the actions of Lessor or Lessee in the negotiation, administration, performance or enforcement hereof. 14.07 Amendments. Chances and Modifications. This Agreement may be amended in writing by Lessor and Lessee to the extent the amendment or modification does not apply to outstanding Property Schedules at the time of such amendment or modification. The consent of all assignees shall be required to any amendment or modification before such amendment or modification shall be applicable to any outstanding Property Schedule. 14.08 Execution in Counterparts This Agreement and the Property Schedules hereunder may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. DWT 8732378v4 0085238 - 000001 14.09 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State. 14.10 S,aptions. The captions or headings in this Agreement are for convenience only and in noway define, limit or describe the scope or intent of any provisions or sections of this Agreement, written. IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above Lessor: U.S. Bancorp Equipment Finance, Inc. Name: Title: OF A�O :S EA L= DWT 8732378x4 0085238 - 000001 Lessee: Town of Avon Name: Cke.ea LC rTile - Attest Name. all C n t o n Title: aM ADDENDUM (COLORADO) Master Tax - Exempt Lease/Purchase Agreement THIS ADDENDUM, which is entered into as of August 26, 2011 between U.S. Bank Equipment Finance, Inc. ( "Lessor ") and Town of Avon ( "Lessee "), is intended to modify and supplement the Master Tax - Exempt Lease/Purchase Agreement between Lessor and Lessee of even date herewith (the "Master Agreement"). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Master Agreement. Notwithstanding anything to the contrary set forth in the Master Agreement, title to the Property subject to each Property Schedule shall remain in Lessor during the Lease Term for such Property Schedule, subject to lessee's rights under the Master Agreement. IN WITNESS WHEREOF, Lessor and Lessee have caused this Addendum to be executed in their names by their duly authorized representatives as of the date first above written. DWT 16556357v1 0085238 - 000005 Property Schedule N O1 Master Tax- Exempt Lease/Purchase Agreement This Property Schedule No. 01 is entered into as of the Commencement Date set forth below, pursuant to that certain Master Tax- Exempt Lease/Purchase Agreement (the "Master Agreement"), dated as of August 26. 2011, between I I.S. Bancorp Equipment Finance. Inc,. and Tox +n of Aeon. 1. Interpretation. The terms and conditions of the Master Agreement are incorporated herein by reference as if fully set forth herein. Reference is made to the Master Agreement for all representations, covenants and warranties made by Lessee in the execution of this Property Schedule, unless specifically set forth herein. In the event of a conflict between the provisions of the Master Agreement and the provisions of this Property Schedule, the provisions of this Property Schedule shall control. All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement. 2. Commencement Date. The Commencement Date for this Property Schedule is August 26, 2011. 3— �ronertv-DescnoUOn -an ent c - e Pi7operty su ect-to -t rs- c u e-is escrt m x r rt I hem-to-.--tessee---sEH-TF-n—of'- remove such property from the locations set forth therein without giving prior written notice to Lessor. The Lease Payment Schedule for this Property Schedule is set forth in Exhibit 1. 4. O inion. The Opinion of Lessee's Counsel is attached as Exhibit 2. 5, Lessee's Certificate. The Lessee's Certificate is attached as Exhibit 3. 6. Proceeds. Lessor shall disburse the proceeds of this Property Schedule in accordance with the instructions attached hereto as Exhibit 4. 7. Acceptance Certificate. The form of Acceptance Certificate is attached as Exhibit 5. 8. Additional Purchase Option Provisions. In addition to the Purchase Option provisions set forth in the Master Agreement, Lease Payments payable under this Property Schedule shall be subject to prepayment in whole at any time by payment of the applicable Termination Amount set forth in Exhibit 1 (Payment Schedule) and payment of all accrued and unpaid interest through the date of prepayment. 9. Bank Oualifrcation and Arbitraee Rebate. Attached as Exhibit 6. 10. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule if the fully executed, original Master Agreement (including this Property Schedule and all ancillary documents) is not received by Lessor at its place of business by September 2. 2011. IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to be executed in their names by their duly authorized representatives as of the Commencement Date above. DWT 8732378v4 0085238 - 000001 XHIBIT 1 Property Description and Payment Schedul Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon. THE PROPERTY 1S AS FOLLOWS: The Property as more fully described in Exhibit A incorporated herein by reference and attached hereto. It includes all replacements, parts, repairs, additions, accessions and accessories incorporated therein or affixed or attached thereto and any and all proceeds of the foregoing, including, without limitation, insurance recoveries. PROPERTY-LOCA-nON PO "B-ox -975; Avon-CO- 81620 —" - - — — - - - - - -- - - USE: Vehicles - This use is essential to the proper, efficient and economic functioning of Lessee or to the services that Lessee provides; and Lessee has immediate need for and expects to make immediate use of substantially all of the Property, which need is not temporary or expected to diminish in the foreseeable future. Lease Payment Schedule If the Due Dates are not defined in this Lease Payment Schedule, they shall be defined as the NA day of each NA period of this Lease Payment Schedule commencing with the Acceptance Date. Total Principal Amount: $563,811.00 Lessee: Town of Aeon B: Name:1Ch Title: r l W DWT 8732378v4 0085238- 000001 Beginning Prepayment Pav # Date Balance Payment Principal Interest Balance 1 26- Feb -2012 563,811.00 45,210.00 36,295.55 8,914.45 543,340.91 2 26-Aug -2012 527,515.45 45,210.00 36,869.42 8,340.58 505,365.41 3 26- Feb -2013 490,646.03 45,210.00 37,452.37 7,757.63 466,789.47 4 26-Aug -2013 453,193.66 45,210.00 38,044.53 7,165.47 427,603.60 5 26- Feb -2014 415,149.13 45,210.00 38,646.05 6,563.95 387,798.17 6 26- Aug -2014 376,503.08 45,210.00 39,257.09 5,952.91 347,363.37 7 26- Feb -2015 337,245.99 45,210.00 39,877.78 5,332.22 306,289.25 8 26- Aug -2015 297,368.21 45,210.00 40,508.29 4,701.71 264,565.71 9 26- Feb -2016 256,859.91 45,210.00 41,148.77 4,061.23 222,182.47 10 26- Aug -2016 215,711.14 45,210.00 41,799.38 3,410.62 179,129.11 11 26- Feb -2017 173,911.76 45,210.00 42,460.27 2,749.73 135,395.03 12 26-Aug -2017 131,451.49 45,210.00 43,131.61 2,078.39 90,969.47 13 26- Feb -2018 88,319.88 45,210.00 43,813.57 1,396.43 45,841.50 14 26- Aug - 2018 44,506.31 45,210.00 44,506.31 703.69 0.00 Lessee: Town of Aeon B: Name:1Ch Title: r l W DWT 8732378v4 0085238- 000001 XMBIT 2 essee's Counsel's O inio [To be provided on letterhead of Lessee's counsel.] [Address to Lessor and Lessee] R. Property c e u e o. Olio Master 'lax- xempfl:ease/Purchase greement etween U.SBancorp Equipment Finance, Inc. and Town of Avon. Ladies and Gentlemen: We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the Master Tax- Exempt Lease/Purchase Agreement, dated as of August 26, 2011 (the "Master Agreement "), between Town of Avon, as lessee, and U.S. Bancorp Equipment Finance, Inc. as lessor ( "Lessor"), and the execution of Property Schedule No. 01 (the "Property Schedule ") pursuant to the Master Agreement. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion. All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement and Property Schedule. As to questions of fact material to our opinion, we have relied upon the representations of Lessee in the Master Agreement and the Property Schedule and in the certified proceedings and other certifications of public officials furnished to us without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion that, under existing law: 1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) the police power. 2. Lessee has all requisite power and authority to enter into the Master Agreement and the Property Schedule and to perform its obligations thereunder. 3. The execution, delivery and performance of the Master Agreement and the Property Schedule by Lessee has been duly authorized by all necessary action on the part of Lessee. 4. All proceedings of Lessee and its governing body relating to the authorization and approval of the Master Agreement and the Property Schedule, the execution thereof and the transactions contemplated thereby have been conducted in accordance with all applicable open meeting laws and all other applicable state and federal laws. 5. Lessee has acquired or has arranged for the acquisition of the Property subject to the Property Schedule, and has entered into the Master Agreement and the Property Schedule, in compliance with all applicable public bidding laws. 6. Lessee has obtained all consents and approvals of other governmental authorities or agencies which may be required for the execution, delivery and performance by Lessee of the Master Agreement and the Property Schedule. 7. The Master Agreement and the Property Schedule have been duly executed and delivered by Lessee and constitute legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the enforcement thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting remedies or creditors' rights generally, and to the exercise of judicial discretion in appropriate cases. DWT 8732378v4 0085238 -000001 8. As of the date hereof, based on such inquiry and investigation as we have deemed sufficient, no litigation is pending, (or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the Property Schedule. This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an opinion with respect to the Property Schedule. Very truly yours, By: Dated: DWT 8732378v4 0085238- 000001 XHIBIT 3 essee's Certificat Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon. The undersigned, being the duly elected, qualified and actingXQUW n C, le rr� pf, the Town of Avon ( "Lessee ") do hereby certify, as of August 26, 2011, as follows: 1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or ordinance duly enacted, in accordance with all requirements of law, approve and authorize t e exdbution and delivery of the above - ref —r—i Prnnerty CchP�lulP lthe ';?wpert) CchPrinl _ ;) aaw t6 _ e,(EU�h -Agree. . qqt ( ', a Qas�je- - -- ---- _r_- -rte -.--�- _... -- -- - - -- .._ - - --- -- ------ Agreement") by the following named representative of Lessee, to wit: NAME OF EXECUTING OFFICIAL TITLE OF EXECUTING OFFICIAL SIGNATURE OF EXECUT OFF L And/ Or 2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time the office set forth above. 3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted in accordance with the charter of the Lessee, if any, and the laws of the State. 4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with respect to this Property Schedule or any other Property Schedules under the Master Agreement. 5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body of Lessee. 6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule and to meet its other obligations for the current budget year and such funds have not been expended for other purposes. 7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or i the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authori ' 0fe of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of o e Ry rcret er Agreement and the Property Schedule. I-own n - von By. r emu - Title: LORADO SIGNER T NOT BET IF AS THE EXECUTING O FICIA S SHOWN ABOVE, DWT 8732378v4 0085238- 000001 i is Oank Qualification And Arbitrage Rebat U.S. Bancorp Equipment Finance. Inc. 13010 SW 68th Parkway. Suite 100 Portland, OR 97223 Re: Property Schedule No. 01 to Master Tax- Exempt LeaselPurchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon Bank Oualified Tax - Exempt Obligation under Section 265 Lessee hereby designates this Property Schedule as a "qualified tax- exempt obligation" as defined in Section 265(b)(3)(B) of the Code. Lessee reasonably anticipates issuing tax- exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds and including all tax- exempt obligations of subordinate entities of the Lessee) during the calendar year in which the Commencement Date of this Property Schedule falls, in an amount not exceeding $10,000,000. Arbitrage Rebate Eighteen Month Exception: Pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of this Property Schedule will be expended for the governmental purposes for which this Property Schedule was entered into, as follows: at least 15% within six months after the Commencement Date, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the Commencement Date. If Lessee is unable to comply with Section 1.148 -7(d) of the Treasury Regulations, Lessee shall compute rebatable arbitrage on this Agreement and pay rebatable arbitrage to the United States at least once every five years, and within 60 days after payment of the final Lease Payment due under this Agreement. Lessee: Town of Avon OF AVON .•Pp� Name: lC co Title: t laq DWT 8732378x4 0085238- 000001 Language for UCC Financing Statements Schedule l SECURED PARTY: l'.S. Bancorp Equipment Finance. Inc. DEBTOR: Town of Avon This financing statement covers all of Debtor's right, title and interest, whether now owned or hereafter acquired, in and to the equipment leased to Debtor under Property Schedule No. 01 dated August 26, 2011 to that certain Master Tax- Exempt Lease Purchase Agreement dated as of August 26, 2011, in each case between Debtor, as Lessee, and Secured Party, as Lessor, together with all accessions, substitutions and replacements thereto and therefore, and proceeds (cash and non - cash), including, without limitation, insurance proceeds, thereof, including without limiting, all equipment described on Exhibit A attached hereto and made a part hereof. Debtor has no right to dispose of the equipment. DWT 8732378x4 0085238 - 000001 INSURANCE AUTHORIZATION AND VERIFICATION Date: �_ ( Property Schedule No: 01 To: Town of Avon (the "Lessee ") From: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ") PO Box 975 13010 SW 68th Parkway, Suite 100 Avon, CO 81620 Portland, OR 97223 Attn: Regina Eckendorf TO THE LESSEE: In connection with the above - referenced Property Schedule, Lessor requires proof in the form of this document, executed by both Lessee* and Lessee's agent, that Lessee's insurable interest in the financed property (the "Property ") meets Lessor's requirements as follows, with coverage including, but not limited to, fire, extended coverage, vandalism, and theft: Lessor, AND ITS SUCCESSORS AND ASSIGNS, shall be covered as both ADDITIONAL INSURED and LENDER'S LOSS PAYEE with regard to all equipment financed or leased by policy holder through or from Lessor. All such insurance shall contain a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such cancellation or modification. Lessee must t airy GENEWAZ LTABILTI Y'(and %or, for vehiles, urC— om bile Liibility) in the amount'of no ess than $'1;OD -0 -,6 .00 (one million dollars). Lessee must carry PROPERTY Insurance (or, for vehicles, Physical Damage Insurance) in an amount no less than the 'Insurable Value' $563,811.00, with deductibles no more than $10,000.00. *Lessee: Please execute this form and return with your document package. Lessor will fax this form to your insurance agency for endorsement. In lieu of agent endorsement, Lessee's agency may submit insurance certificates demonstrating compliance with all requirements. If fully executed form (or Lessee- executed form plus certificates) is not provided within 15 days, we have the right to purchase such insurance at your expense. Should you have any questions, please contact Regina Eckendorf at (303) 585 -4025. By signing, Lessee authorizes the Agent named below: 1) to complete and return this form as indicated; and 2) to endorse the policy and subsequent renewals to reflect the required coverage as outlined above. Agency /Agent: Address: Phone/Fax: E -Mail Tow By: Nan Tith TO THE AGENT: In lieu of providing a certificate, please execute this form in the space below and promptly fax it to Lessor at Thisfully endorsed form shall serve as proof that Lessee's insurance meets the above requirements. Agent hereby verifies that the above requirements have been met in regard to the Property listed below. Print Name Of Agency: X By: X (Agent's Signature) Print Name: X Insurable Value: $ [amount offinancing/ Date: X ATTACHED: PROPERTY DESCRIPTION FOR PROPERTY SCHEDULE NO.: 01 DWT 8732378v4 0085238 -000001 TITLING ADDENDUM Addendum to the Master Tax - Exempt Lease/Purchase Agreement dated August 26, 2011, between the Town of Avon as Lessee and U.S.Bancorp Equipment Finance Inc as Lessor. 1. Lessor and Lessee hereby agree to amend the above referenced Agreement to add additional terms and conditions as set forth below: Lessee agrees that it will provide to Lessor the original title documentation to the Equipment. Lessee shall provide such title documentation to Lessor within 15 days of Lessee's receipt of such title documentation from the appropriate titling authority. Lessee's failure to provide Lessor with title documentation to the Equipment in a timely fashion shall be deemed a condition of Default as defined in the default paragraph herein ciihiect t remQdiec avai�ie_tp- LeSgp(�i[sliant to the remedies paragraph. You further agree to pay a month to month unobtained titling fee if we have not received the correct transferred title in our office. 2. Location: Lessor agrees that in regard to the location of the equipment, Lessee must be responsible for maintaining records showing the location of each piece of Leased equipment. Lessee will report this location to Lessor upon written request by Lessor. Failure to do so shall constitute a breach of the Agreement, which default shall be governed by the terms and conditions specified in the default and/or remedies paragraph of the Agreement. 3. Lessee will complete the physical titling of the vehicle as required by the state of Lessee's residence and guarantee US Bancorp Equipment Finance Inc. that US Bancorp Equipment Finance Inc. will receive the original title to the leased vehicle in a timely manner. Lessee agrees to indemnify US Bancorp Equipment Finance Inc. from any damage or loss it incurs, including legal fees, due to its failure to complete its agreement herein. THE APPLICATION FOR TITLE MUST INCLUDE US BANCORP EQUIPMENT FINANCE INC., 13010 SW 68`h Parkway, Suite 100, Portland, OR 97223 AS 1ST LIEN - HOLDER. By signing this Addendum, Lessee acknowledges the above changes to the Agreement and authorizes Lessor to make such changes. In all other respects the terms and conditions of the Agreement remain in full force and effect. U.S. Bancorp Equipment Finance. Inc. Town of Avon Lessor Lessee X Signature Signature 223tial?, Title Title _..._ — 1; i t Date Date 0313 Foy 8038�� Information Return for Tax - Exempt Governmental Obligations ► Under Internal Revenue Code section 149(e) OMB No. 1545 -0720 (Rev. May 2010) ► See separate instructions. Department of the Treasury Caution: If the issue price is under $100,000, use Form 8038 -GC. Internal Revenue Senrloe LEM Reporting Autihordy I If Amended Return, check here ► LJ 1 Issuer's name 2 2 I Issuer's employer Identification number (ON) Town of Avon, Colorado 8 84 0771088 3 Number and street (or P.O. box if mail is not delivered to street address) R Room/suite 4 4 R Report number (For IRS Use Only) PO Box 975 1 13 5 City, town, or post office, state, and ZIP code 6 6 D Date of Issue Avon, CO 81620 0 08/23/2011 7 Name of issue 8 8 C CUSIP number Master Tax-Exempt Lease /Purchase Agreement N None 9 Name and tide of officer of the issuer or other person whom the IRS may call for more information 1 10 T Telephone number of officer or other persor Scott Wright ( ( 970 ) 748.4055 UITIM Tvee of Issue tenter the issue price) See instructions and attach schedule Education--:--T - - ----- -- - . - . 12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . 12 13 Transportation . . . . . . . . . . . . . . . . . . . . . . . . . 13 14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 15 Environment (including sewage bonds) . . . . . . . . . . . . . . . . . . 15 16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 17 Utilities . . . . . . . . . . 17 18 Other. Describe Do- m Mun14ai Equlpent (Snowplow, Transit Bus) 18 563,8�1-00 19 If obligations are TANS or RANs, check only box 19a . . . . . . . . . . . . ► ❑ If obligations are BANS, check only box 19b . . . . . . . . . . . . . . . ► ❑ 20 If obligations are in the form of a lease or installment sale, check box . . . . . . . ► m I Descri tion of Obligations. Complete for the entire issue for which this form is bein q filed. (a) Final maturity date (b) Issue price (c) Stated redemption (d) Weighted (e) Yleld price at maturity average maturity 21 08/26/2018 $ 563,811.00 1 $ NA 7 years 3.16 % Uses of Proceeds of Bond Issue fincludina underwriters' discount] 22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . 22 23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . 23 24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 25 Proceeds used for credit enhancement . . . . . . . . . . . 25 26 Proceeds allocated to reasonably required reserve or replacement fund . . 26 27 Proceeds used to currently refund prior issues . . . . . . . . . 27 28 Proceeds used to advance refund prior issues . . . . . . . . . 28 29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . 29 30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30 Descri tion of Refunded Bonds (Complete this part on for refunding bonds. 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years 33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ► 34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY) For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010) 22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . 22 23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . 23 24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 25 Proceeds used for credit enhancement . . . . . . . . . . . 25 26 Proceeds allocated to reasonably required reserve or replacement fund . . 26 27 Proceeds used to currently refund prior issues . . . . . . . . . 27 28 Proceeds used to advance refund prior issues . . . . . . . . . 28 29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . 29 30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30 Descri tion of Refunded Bonds (Complete this part on for refunding bonds. 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years 33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ► 34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY) For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010) 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years 33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ► 34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY) For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010) Form 8038 -G (Rev. 5 -2010) Page 2 Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 35 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . . 36a b Enter the final maturity date of the GIC ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units . . . . . . . . . . . . . . . . . . . . . . . . . 37a b If this issue is a loan made from the proceeds of another tax- exempt issue, check box ► ❑ and enter the name of the issuer ► and the date of the issue ► 38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(111) (small issuer exception), check box . . . . ► ❑ 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . . . ► ❑ 40 If the issuer has identified a hedge, check box . . . . . . . . . . . . . . . . . . . . . . . . ► ❑ Under pen tties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge Signature and , th are true, correct, and complete. rther declare that I consent to the IRS's disclosure of the issuer's return information, as necessary to cess thi return, to the person that A hay@ a onzed above. — Consent ' Y aZ �O ' Scott Wright, Asst. Town Manager Signature of issuer's authorized rep r tative Date I Type or print name and title Paid Preparer's Date Check If Preparer's SSN or "N Preparer's signature Firm's name (or self -emplo ed ❑ Use Only yours If sett- employed),' EIN address. and ZIP code Phone no. ( ) Form 8038-6 (Rev. 5 -2010) ESCROW AGREEMENT THIS ESCROW AGREEMENT ( "Escrow Agreement") is made as of August 26, 2011 by and among U.S. Bancorp Equipment Finance, Inc. ("Lessor"), Town of Avon ( "Lessee ") and U.S. BANK NATIONAL ASSOCIATION, as escrow agent ( "Escrow Agent "). Lessor and Lessee have heretofore entered into that certain Master Tax - Exempt Lease Purchase Agreement dated as of August 26, 2011 (the "Master Agreement') and a Schedule No. 01 thereto dated August 26, 2011 (the "Schedule " and, together with the terms and conditions of the Agreement incorporated therein, the "Agreement "). The Schedule contemplates that certain personal property described therein (the "Equipment") is to be acquired from the Lessee, the Equipment is to be financed by Lessor to Lessee pursuant to the terms of the Agreement. The Master Agreement further contemplates that Lessor will deposit an amount equal to the anticipated aggregate acquisition cost of the Equipment (the "Purchase Price"), being $563,811.00, with Escrow Agent to be held in escrow and applied on the express terms set forth herein. Such deposit, together with all interest and other additions received with respect thereto (hereinafter the "Escrow Fund") is to be applied to pay the Vendor its invoice cost (a portion of which may, if required, be paid prior to final acceptance of the Equipment by Lessee); and, if applicable, to reimburse Lessee for progress payments already made by it to the Vendor of the Equipment. The parties desire to set forth the terms on which the Escrow Fund is to be created and to establish the rights and responsibilities of the parties hereto. Now, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. (a) Escrow Agent hereby agrees to serve as escrow agent upon the terms and conditions set forth herein. (b) The moneys and investments held in the Escrow Fund are irrevocably held in trust for the benefit of Lessee and Lessor, and such moneys, together with any income or interest earned thereon, shall be expended only as provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either Lessee or Lessor. Lessor, Lessee and Escrow Agent intend that the Escrow Fund constitute an escrow account in which Lessee has no legal or equitable right, title or interest until satisfaction in full of all conditions contained herein for the disbursement of funds by the Escrow Agent therefrom. However, if the parties' intention that Lessee shall have no legal or equitable right, title or interest until all conditions for disbursement are satisfied in full is not respected in any legal proceeding, the parties hereto intend that Lessor have a security interest in the Escrow Fund, and such security interest is hereby granted by Lessee to secure payment of all sums due to Lessor under the Master Agreement. For such purpose, Escrow Agent hereby agrees to act as agent for Lessor in connection with the perfection of such security DWT 17415530vl0085238- 000005 interest and agrees to note, or cause to be noted, on all books and records relating to the Escrow Fund, the Lessor's interest therein. 2. On such day as is determined to the mutual satisfaction of the parties (the "Closing Date"), Lessor shall deposit with Escrow Agent cash in the amount of the Purchase Price, to be held in escrow by Escrow Agent on the express terms and conditions set forth herein. On the Closing Date, Escrow Agent agrees to accept the deposit of the Purchase Price by Lessor, and further agrees to hold the amount so deposited together with all interest and other additions received with respect thereto, as the Escrow Fund hereunder, in escrow on the express terms and conditions set forth herein. 3. Escrow Agent shall at all times segregate the Escrow Fund into an account maintained for that express purpose, which shall be clearly identified on the books and records of Escrow Agent as being held in its capacity as Escrow Agent. Securities and other negotiable instruments comprising the Escrow Fund from time to time shall be held or registered in the name of Escrow Agent (or its nominee). The Escrow Fund shall not, to the extent permitted by applicable law, be subject to levy or attachment or lien by or for the benefit of any creditor of any of the parties hereto (except with respect to the security interest therein held by Lessor). 4. The cash comprising the Escrow Fund from time to time shall be invested and reinvested by Escrow Agent in one or more investments as directed by Lessee in Exhibit 1. Lessee represents and warrants to Escrow Agent and Lessor that the investments selected by Lessee for investment of the Escrow Fund are permitted investments for Lessee under all applicable laws. Escrow Agent will use due diligence to collect amounts payable under a check or other instrument for the payment of money comprising the Escrow Fund and shall promptly notify Lessee and Lessor in the event of dishonor of payment under any such check or other instruments. Interest or other amounts earned and received by Escrow Agent with respect to the Escrow Fund shall be deposited in and comprise a part of the Escrow Fund. Escrow Agent shall maintain accounting records sufficient to permit calculation of the income on investments and interest earned on deposit of amounts held in the Escrow Fund. 5. Upon request by Lessee and Lessor, Escrow Agent shall send monthly statements of account to Lessee and Lessor, which statements shall set forth all withdrawals from and interest earnings on the Escrow Fund as well as the. investments in which the Escrow Fund is invested. 6. Escrow Agent shall take the following actions with respect to the Escrow Fund: (a) Upon Escrow Agent's acceptance of the deposit of the Purchase Price, an amount equal to Escrow Agent's set -up fee, as set forth on Exhibit 2 hereto, shall be disbursed from the Escrow Fund to Escrow Agent in payment of such fee. (b) From time to time, Escrow Agent shall pay costs of the Equipment upon receipt of duly executed Requisition Request form attached as Exhibit 3 hereto (each, a "Requisition"), subject to Lessor's prior written approval of each such Requisition. The -2- DWT 17415530vl 0085238- 000005 final Requisition shall be accompanied by a duly executed Certificate of Acceptance form attached as Exhibit 4 hereto. (c) Upon receipt by Escrow Agent of written notice from Lessor that an Event of Default or an Event of Nonappropriation (if provided for under the Master Agreement) has occurred under the Agreement, all funds then on deposit in the Escrow Fund shall be paid to Lessor for application in accordance with the Master Agreement, and this Escrow Agreement shall terminate. (d) Upon receipt by Escrow Agent of written notice from Lessor that the purchase price of the Equipment has been paid in full, Escrow Agent shall pay the funds then no dennsit in the Fsrrnw Fund to T.essor to he applied first to the next T Pace Payment due under the Master Agreement, and second, to prepayment of the principal component of Lease Payments in inverse order of maturity without premium. To the extent the Agreement is not subject to prepayment, Lessor consents to such prepayment to the extent of such prepayment amount from the Escrow Fund. Upon disbursement of all amounts in the Escrow Fund, this Escrow Agreement shall terminate. (e) This Escrow Agreement shall terminate eighteen (18) months from the date of this Escrow Agreement. It may, however, be extended by mutual consent of Lessee and Lessor in writing to Escrow Agent. All funds on deposit in the Escrow Fund at the time of termination under this paragraph shall be transferred to Lessor and shall be applied first to the next Lease Payment due under the Master Agreement, and second to prepayment of the principal component of Lease Payments in inverse order of maturity without premium. To the extent the Master Agreement is not subject to prepayment, Lessor consents to such prepayment to the extent of such prepayment amount from the Escrow Fund. 7. The fees and expenses, including any legal fees, of Escrow Agent incurred in connection herewith shall be the responsibility of Lessee. The basic fees and expenses of Escrow Agent shall be as set forth on Exhibit 2 and Escrow Agent is hereby authorized to deduct such fees and expenses from the Escrow Fund as and when the same are incurred without any further authorization from Lessee or Lessor. Escrow Agent may employ legal counsel and other experts as it deems necessary for advice in connection with its obligations hereunder. Escrow Agent waives any claim against Lessor with respect to compensation hereunder. 8. Escrow Agent shall have no liability for acting upon any written instruction presented by Lessor in connection with this Escrow Agreement, which Escrow Agent in good faith believes to be genuine. Furthermore, Escrow Agent shall not be liable for any act or omission in connection with this Escrow Agreement except for its own negligence, willful misconduct or bad faith. Escrow Agent shall not be liable for any loss or diminution in value of the Escrow Fund as a result of the investments made by Escrow Agent. 9. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice to Lessor and Lessee. Lessor may at any time remove Escrow Agent as Escrow Agent under this -3- DWT 17415530v1 0085238- 000005 Escrow Agreement upon written notice. Such removal or resignation shall be effective on the date set forth in the applicable notice. Upon the effective date of resignation or removal, Escrow Agent will transfer the Escrow Fund to the successor Escrow Agent selected by Lessor. 10. Lessee hereby represents, covenants and warrants that pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of the Agreement will be expended for the governmental purposes for which the Agreement was entered into, as follows: at least 15% within six months after the Commencement Date, such date being the date of deposit of funds into the Escrow Fund, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the Commencement Date. If Lessee is unable to comply with Section 1.148- 1l7(d)of the Treasury Regulations, 'Lessee ,shall, at its sole expense ♦ and l cost, compute 1rP�7*O ^1P 2r- bitr2gr !g }17P egrgerngnt :and \l TP1+9 *able O� ';t' P to the 11nita l Riatos at once every five years, and within 60 days after payment of the final rental or Lease Payment due under the Agreement. 11. In the event of any disagreement between the undersigned or any of them, and/or any other person, resulting in adverse claims and demands being made in connection with or for any moneys involved herein or affected hereby, Escrow Agent shall be entitled at its option to refuse to comply with any such claim or demand, so long as such disagreement shall continue, and in so refusing Escrow Agent may refrain from making any delivery or other disposition of any moneys involved herein or affected hereby and in so doing Escrow Agent shall not be or become liable to the undersigned or any of them or to any person or party for its failure or refusal to comply with such conflicting or adverse demands, and Escrow Agent shall be entitled to continue so to refrain and refuse so to act until: (a) the rights of the adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the moneys involved herein or affected hereby; or (b) all differences shall have been adjusted by Master Agreement and Escrow Agent shall have been notified thereof in writing signed by all of the persons interested. 12. All notices (excluding billings and communications in the ordinary course of business) hereunder shall be in writing, and shall be sufficiently given and served upon the other party if delivered (a) personally, (b) by United States registered or certified mail, return receipt requested, postage prepaid, (c) by an overnight delivery by a service such as Federal Express or Express Mail from which written confirmation of overnight delivery is available, or (d) by facsimile with a confirmation copy by regular United States mail, postage prepaid, addressed to the other party at its respective address stated below the signature of such party or at such other address as such party shall from time to time designate in writing to the other party, and shall be effective from the date of mailing. 13. This Escrow Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. No rights or obligations of Escrow -4- DWT 17415530vl 0085238- 000005 Agent under this Escrow Agreement may be assigned without the prior written consent of Lessor. 14. This Escrow Agreement shall be governed by and construed in accordance with the laws in the state of the Escrow Agent's location. This Escrow Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof, and no waiver, consent, modification or change of terms hereof shall bind any party unless in writing signed by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly executed as of the day and year first above set forth. U.S. Bancorp Equipment Finance, Inc., as Lessor By Name: Title: Address: 13010 SW 68th Parkway, Suite 100 Portland OR 97223 Town of Avon as Le By Name: Title: v Address: PO Box 975 Avon, CO 8 A ►S E A L U.S. BANK NATIONAL ASSOCIA as Escrow Agent By Name: Title: Address: U.S. Bank National Association 950 17°i Street, 12" Floor Denver, CO 80202 -5- DWT 17415530v10085238- 000005 U.S. Bank National Association 950 17' Street, 12" Floor Denver, CO 80202 indicated: EXHIBIT 1 INVESTMENT DIRECTION LETTER Re: Escrow Agreement dated as of August 26 2011, U.S. Bancorp Equipment Finance, Inc. as Lessor, Town of Avon as Lessee, and U.S. Bank National Association, as Escrow Agent Pursuant to the above - referenced Escrow Agreement, $563, 11 8.00 will be deposited in escrow with you on or about August 26, 2011. Such funds shall be invested in one or more of the following qualified investments in the amounts U.S. Bank Money Market Account Agent is hereby directed to deposit and invest funds in the U.S. Bank Money Market Savings Account. Depositors acknowledge that the U. S. Bank Money Market account is a U. S. Bank National Association ( "U.S. Bank ") interest - bearing money market deposit account designed to meet the needs of U.S. Bank's Corporate Trust Services Escrow Group and other Corporate Trust customers of U.S. Bank. Selection of this investment includes authorization to place funds on deposit with U.S. Bank. U. S. Bank uses the daily balance method to calculate interest on this account (actual /365 or 366). This method applies a daily periodic rate to the principal balance in the account each day. Interest is accrued daily and credited monthly to the account. Interest rates currently offered on the accounts are determined at U. S. Bank's discretion and may be tiered by customer deposit amount. The owner of the accounts is U. S. Bank as Agent for its trust customers. U.S. Bank's trust department performs all account deposits and withdrawals. Each customer's deposit is insured by the Federal Deposit Insurance Corporation as determined under FDIC Regulations, up to applicable FDIC limits. Any and all interest earned on the Assets after the deposit shall be added to the Assets and shall become a part thereof. Agent shall thereafter hold, maintain and utilize the Assets pursuant to the terms and conditions of this Agreement. Depositors shall provide Agent with a W -9 or original W -8 IRS tax form prior to the disbursement of interest and Agent will file the appropriate 1099 or other required forms pursuant to Federal and Texas laws. A statement of citizenship will be provided if requested by Agent. Agent shall not be responsible for maximizing the yield on the Assets. Agent shall not be liable for losses, penalties or charges incurred upon any sale or purchase of any such investment. Very truly yours, By: Town Name Title: DWT 17415530vl 0085238- 000005 EXHIBIT 2 ESCROW AGENT FEES AND EXPENSES SET -UP FEES $0.00 payable from the Escrow Fund upon acceptance of escrow deposit. EXPENSES Any and all out -of- pocket expenses incurred by Escrow Agent will be the responsibility DWT 17415530v1 0085238- 000005 August 24, 2011 U.S. Bancorp Equipment Finance, Inc. 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 ERIC J. HEIL, ESQ., A.I.C.P., OWNER MERElMH VAN HORN, ESQ..ASSOCIATE RE: Property Schedule No.1 to Master Tax - Exempt lease /Purchase Agreement between U.S. Bancorp Equipment Finance, Inc. and Town of Avon Ladies and Gentlemen: We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the Master Tax - Exempt Lease /Purchase Agreement, dated as of August 23, 2011 (the "Master Agreement "), between the Town of Avon as lessee, and U.S. Bancorp Equipment Finance, Inc. as lessor ( "Lessor "), and the execution of Property Schedule No 1 (the "Property Schedule ") pursuant to the Master Agreement. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion. All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement and Property Schedule. As to questions of fact material to our opinion, we have relied upon the representations of Lessee in the Master Agreement and the Property Schedule and in the certified proceedings and other certifications of public officials furnished to us without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion that, under existing law: 1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a substantial amount of one or more of the following — sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) the police power. Lessee has all requisite power and authority to enter Into the Master Agreement and the Property Schedule and to perform its obligations thereunder. 3. The execution, delivery and performance of the Master Agreement and the Property Schedule by Lessee has been duly authorized by all necessary action on the part of Lessee. HEIL LAW & PLANNING, LLC OFFICE: 303.975.6120 2696 Sound COLORADO BLvD., SUITE SSO FAX: 720.836.3337 DENVER, CO 80222 E -MAIL: ERIC@HEILLAW.COM U.S. Bancorp Equipment Finance, Inc. Master Tax - Exempt Lease/Purchase Agreement August 24, 2011 Pagd 2 of 2 ' 4. All proceedings of Lessee and its governing body relating to the authorization and approval of the Master Agreement and the Property Schedule, the execution thereof and the transactions contemplated thereby have been conducted in accordance with all applicable open meeting laws and all other applicable state and federal laws. 5. Lessee has acquired or has arranged for the acquisition of the Property subject to the Property Schedule, and has entered Into the Master Agreement and the Property Schedule, in compliance with all applicable public bidding laws. 6. Lessee has o tained all consents an`d- approvais of other goverrimehtal vttles or -� agencies which may be required for the execution, delivery and performance by Lessee of the Master Agreement and the Property Schedule. 7. The Master Agreement and the Property Schedule have been duly executed and delivered by Lessee and constitute legal, valid and binding obligations of lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the enforcement thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting remedies or creditors' rights generally, and to the exercise of judicial discretion in appropriate cases. 8. As of the date hereof, based on such inquiry and Investigation as we have deemed sufficient, no litigation is pending, (or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of, any proceedings, authorizing• the execution of the Master Agreement and thePropefty Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement.anci the Property Schedule. This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an opinion with respect to the Property Schedule. E Si rely, s Eric J. il, Esq., A.I.C.P. Avon Town Attorney Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Initials -egal -E c-14ei ,- -own Attorney — - - From: Scott Wright, Asst. Town Manager — Finance Date: August 18, 2011 Re: Resolution No. 11 -13 Master Tax- Exempt Lease/Purchase Agreement Summary: This resolution adopts a Master Tax- Exempt Lease/Purchase Agreement with U.S. Bancorp Equipment Finance, Inc. Discussion: Capital lease purchases are a capital financing tool that lessen the burden of an initial purchase of capital equipment and spreads the cost out over the estimated useful life of the asset. This lease purchase agreement finances the purchase of a replacement Plow Truck and a 30 ft. Gillig transit bus. These capital items and the lease financing were previously approved in the 2011 budget. Financial Implications: The amount of the lease is $563,811 to be amortized over a term of seven (7) years with semi- annual payments at an interest rate of 3.16 %. Recommendation: Staff recommends that the Town Council approve the resolution discussed above as presented. Town Manager Comments: Page 1 Attachments: A — Resolution No. 11 -13 B — Master Tax- Exempt Lease/Purchase Agreement and Exhibits • Page 2 a • • Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal: Eric Heil, Town Attorney From: Scott Wright, Asst. Town Manager — Finance Date: August 18, 2011 Initials Re: Resolution No. 11 -13 Master Tax- Exempt Lease/Purchase Agreement Summary: This resolution adopts a Master Tax- Exempt Lease/Purchase Agreement with U.S. Bancorp Equipment Finance, Inc. Discussion: Capital lease purchases are a capital financing tool that lessen the burden of an initial purchase of capital equipment and spreads the cost out over the estimated useful life of the asset. This lease purchase agreement finances the purchase of a replacement Plow Truck and a 30 ft. Gillig transit bus. These capital items and the lease financing were previously approved in the 2011 budget. Financial Implications: The amount of the lease is $563,811 to be amortized over a term of seven (7) years with semi- annual payments at an interest rate of 3.16 %. Recommendation: Staff recommends that the Town Council approve the resolution discussed above as presented. Town Manager Comments: Page 1 Attachments: A — Resolution No. 11 -13 B — Master Tax - Exempt Lease /Purchase Agreement and Exhibits • Page 2 CJ r2 • TOWN OF AVON, COLORADO RESOLUTION 11 -13 SERIES OF 2011 A RESOLUTION OF THE TOWN COUNCIL OF TOWN OF AVON, AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER EQUIPMENT LEASE- PURCHASE AGREEMENT AND SEPARATE LEASE SCHEDULE WITH RESPECT TO THE ACQUISITION, PURCHASE, FINANCING AND LEASING OF CERTAIN EQUIPMENT FOR THE PUBLIC BENEFIT; AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING THE TAKING OF ALL OTHER ACTIONS NECESSARY TO THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION. WHEREAS, Town of Avon (the "Lessee"), a body politic and corporate duly organized and existing as a home rule authority municipal corporation and body politic organized under the laws of the State of Colorado, is authorized by the laws of the State of Colorado to purchase, acquire and lease personal property for the benefit of the Lessee and its inhabitants and to enter into contracts with respect thereto; and WHEREAS, the Lessee desires to purchase, acquire and lease certain equipment • constituting personal property necessary for the Lessee to perform essential governmental functions; and WHEREAS, in order to acquire such equipment, the Lessee proposes to enter into that certain Master Tax - Exempt Lease /Purchase Agreement (the "Agreement") and separate Lease Schedules and Escrow Agreements from time to time as provided in the Agreement with U.S BANCORP EQUIPMENT FINANCE, INC. (the "Lessor"), the forms of which have been presented to the governing body of the Lessee at this meeting; and WHEREAS, the governing body of the Lessee deems it for the benefit of the Lessee and for the efficient and effective administration thereof to enter into the Agreement and the separate Lease Schedules and Escrow Agreements as provided in the Agreement for the purchase, acquisition and leasing of the equipment therein described on the terms and conditions therein provided. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1.Approval of Documents. The form, terms and provisions of the Agreement and the separate Lease Schedules and Escrow Agreement as provided in the Agreement are hereby approved in substantially the form presented at this meeting, with such insertions, omissions and changes as shall be approved by the Mayor of the Lessee or other members of the governing • Resolution 11- Master Equipment Lease - Purchase Agreement US Bank MVH 8.15.11 Page 1 of 3 body of the Lessee executing the same, the execution of such documents being conclusive evidence of such approval; and the Mayor of the Lessee is hereby authorized and directed to • execute, and the Town Clerk of the Lessee is hereby authorized and directed to attest and countersign, the Agreement and each Lease Schedule and Escrow Agreement and any related Exhibits attached thereto and to deliver the Agreement and each Lease Schedule and Escrow Agreement (including such Exhibits) to the respective parties thereto, and the Town Clerk of the Lessee is hereby authorized to affix the seal of the Lessee to such documents. Section 2.Other Actions Authorized. The officers and employees of the Lessee shall take all action necessary or reasonably required by the parties to the Agreement and each Lease Schedule and Escrow Agreement to carry out, give effect to and consummate the transactions contemplated thereby (including the execution and delivery of the Acceptance Certificate contemplated in the Agreement and any tax certificate and agreement, each with respect to separate Lease Schedules, as provided in the Agreement) and to take all action necessary in conformity therewith, including, without limitation, the execution and delivery of any closing and other documents required to be delivered in connection with the Agreement and each Lease Schedule. Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, any Lease Schedule, nor any other instrument shall be construed with respect to the Lessee as incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing power, nor shall the breach of any agreement contained in this Resolution, the Agreement, any Lease Schedule, or any other instrument or document executed in connection therewith impose • any pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing power, except to the extent that the Rental Payments payable under each Lease are special limited obligations of the Lessee as provided in such Lease. Section 4. Appointment of Authorized Lessee Representatives. The Town Manager and Assistant Town Manager of the Lessee are each hereby designated to act as authorized representatives of the Lessee for purposes of the Agreement and each Lease Schedule until such time as the governing body of the Lessee shall designate any other or different authorized representative for purposes of the Agreement and each Lease Schedule. Section 5. Section 265(b)(3) Designation. Lessee hereby designates the Agreement as a "qualified tax - exempt obligation" for the purposes and within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as amended. Section 6. 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 8. Effective Date. This Resolution shall be effective immediately upon its approval and adoption. • Resolution 11- Master Equipment Lease - Purchase Agreement US Bank MVH 8.15.11 Page 2 of 3 • ACCEPTED, APPROVED AND ADOPTED August _, 2011. AVON TOWN COUNCIL [Seal] Attest: r� Patty McKenny, Town Clerk IIn Rich Carroll, Mayor • Resolution 11- Master Equipment Lease - Purchase Agreement US Bank g MVH 8.15.11 Page 3 of 3 4 Master Tax - Exempt Lease /Purchase Agreement Between: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ") • 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 And: Town of Avon (the "Lessee ") PO Box 975 Avon, CO 81620 Attention: Scott Wright Telephone: 970 - 748 -4055 Dated: August 26, 2011 ARTICLE 1 DEFINITIONS The following terns will have the meanings indicated below unless the context clearly requires otherwise: "Agreement" means this Master Tax - Exempt Lease /Purchase Agreement, including all exhibits and schedules attached hereto. "Code" is defined in Section 3.01(f). "Commencement Date" is the date when the term of a Property Schedule and Lessee's obligation to pay rent thereunder commences, which date shall be set forth in such Property Schedule. "Event of Default" is defined in Section 13.01. "Lease Payments" means the Lease Payments payable by Lessee under Article VI of this Agreement and each Property Schedule, as set forth in each Property Schedule. Lease Payment Dates" means the Lease Payment dates for the Lease Payments as set forth in each Property Schedule. "Lease Term" means, with respect to a Property Schedule, the Original Tenn and all Renewal Terns. The Lease Tenn for each Property Schedule executed hereunder shall be set forth in such Property Schedule, as provided in Section 4.02. "Lessee" means the entity identified as such in the first paragraph hereof, and its permitted successors and assigns. • "Lessor" means the entity identified as such in the first paragraph hereof, and its successors and assigns. "Nona 1) propriation Event" is defined in Section 6.06. "Original Term" means, with respect to a Property Schedule, the period from the Commencement Date until the end of the budget year of Lessee in effect at the Commencement Date. "Property" means, collectively, the property lease /purchased pursuant to this Agreement, and with respect to each Property Schedule, the property described in such Property Schedule, and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article IX. "Property Schedule" means a Property Schedule in the form attached hereto for Property Schedule I. Subsequent Property Schedules pursuant to this Agreement shall be numbered consecutively, beginning with Property Schedule 2. "Purchase Price" means the amount that Lessee may, in its discretion, pay to Lessor to purchase the Property under a Property Schedule, as provided in Section 11.01 and as set forth in the Property Schedule. "Renewal Terms" means the renewal terns o£a Property Schedule, each having a duration of one year and a tern coextensive with Lessee's budget year. "State" means the state where Lessee is located. "Vendor" means the manufacturer or contractor of the Property as well as the agents or dealers of the manufacturer or contractor from whom Lessor or Lessee purchased or is purchasing all or any portion of the Property. ARTICLE 11 2.01 Property Schedules Separate Financines. Each Property Schedule executed and delivered under this Agreement shall be a separate financing, distinct from other Property Schedules. Without limiting the foregoing, upon the occurrence of an Event of Default or a Nonappropriation Event with respect to a Property Schedule, Lessor shall have the rights and remedies specified herein with respect to the Property financed and the Lease Payments payable under such Property Schedule, and except as expressly provided in Section 12.02 below, Lessor shall have no rights or remedies with respect to Property financed or Lease Payments payable under any other Property Schedules unless an Event of Default or Nonappropriation Event has also occurred under such other Property Schedules. ARTICLE 111 3.01 Covenants of Lessee. As of the Commencement Date for each Property Schedule executed and delivered hereunder, Lessee shall be deemed to represent, covenant and warrant for the benefit of Lessor as follows: (a) Lessee is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority to enter into this Agreement and the Property Schedule and the transactions contemplated thereby and to perform all of its obligations thereunder. (b) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. To the extent Lessee should merge with another entity under the laws of the State, Lessee agrees that as a condition to such merger it will require that the remaining or resulting entity shall be assigned Lessee's rights and shall assume Lessee's obligations hereunder. (c) Lessee has been duly authorized to execute and deliver this Agreement and the Property Schedule by proper action by its governing body, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Property Schedule, and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the Property Schedule and the acquisition by Lessee of the Property thereunder. On or before the Commencement Date for the Property Schedule, Lessee shall cause to be delivered an opinion of counsel in substantially the fonn attached to the fonn of the Property Schedule as Exhibit 2. DWT 8732378v4 0085238- 000001 / b (d) During the Lease Tenn for the Property Schedule, the Property thereunder will perform and will be used by Lessee only for the purpose of performing essential governmental uses and public functions within the permissible scope of Lessee's authority. (e) Lessee will provide Lessor with current financial statements, budgets and proof of appropriation for the ensuing budget year and other financial information relating to the • ability of Lessee to continue this Agreement and the Property Schedule in such form and containing such information as may be requested by Lessor. (f) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code "), including Sections 103 and 148 thereof, and the regula- tions of the Treasury Department thereunder, from time to time proposed or in effect, in order to maintain the excludability from gross income for federal income tax purposes of the interest component of Lease Payments under the Property Schedule and will not use or permit the use of the Property in such a manner its to cause a Property Schedule to be a "private activity bond" under Section 141(a) of the Code. Lessee covenants and agrees that it will use the proceeds of the Property Schedule as soon as practicable and with all reasonable dispatch for the purpose for which the Property Schedule has been entered into, and that no part of the proceeds of the Property Schedule shall be invested in any securities, obligations or other investments except for the temporary period pending such use nor used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of the Agreement, would have caused any portion of the Property Schedule to be or become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in effect at the time of such use and applicable to obligations issued on the date of issuance of the Property Schedule. (g) The execution, delivery and performance of this Agreement and the Property Schedule and compliance with the provisions hereof and thereof by Lessee does not conflict with or result in a violation or breach or constitute a default under, any resolution, bond, agreement, indenture, mortgage, note, lease or other instrument to which Lessee is a party or by which it is bound by any law or any rule, regulation, order or decree of any court, governmental agency or body having jurisdiction over Lessee or any of its activities or properties resulting in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any property or assets of Lessee or to which it is subject. (h) Lessee's exact legal name is as set forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior notice to Lessor. ARTICLE IV 4.01 Lease of Property. On the Commencement Date of each Property Schedule executed hereunder, Lessor will be deemed to demise, lease and let to Lessee, and Lessee will be deemed to rent, lease and hire from Lessor, the Property described in such Property Schedule, in accordance with this Agreement and such Property Schedule, for the Lease Tent set forth in such Property Schedule. 4.02 Lease Term. The tern of each Property Schedule shall commence on the Commencement Date set forth therein and shall terminate upon payment of the final Lease Payment set forth in such Property Schedule and the exercise of the Purchase Option described in Section 11.01, unless terminated sooner pursuant to this Agreement or the Property Schedule. 4.03 Delivery, Installation and Acceptance of Pronerry. Lessee shall order the Property, shall cause the Property to be delivered and installed at the locations specified in the applicable Property Schedule and shall pay all taxes, delivery costs and installation costs, if any, in connection therewith. To the extent funds are deposited under an escrow ngreentent or trust agreement for the acquisition of the Property, such funds shall be disbursed as provided therein. When the Property described in such Property Schedule is delivered, installed and accepted as to Lessee's specifications, Lessee shall immediately accept the Property and evidence said acceptance by executing and delivering to Lessor the Acceptance Certificate substantinlly in the form attached to the Property Schedule. ARTICLE V 5.01 Eniovment of Property. Lessee shall during the Lease Tenn peaceably and quietly have, hold and enjoy the Property, without suit, trouble or hindrance from Lessor, except as expressly set forth in this Agreement. Lessor shall not interfere with such quiet use and enjoyment during the Lease Tenn so long as Lessee is not in default under the subject Property •Schedule. 5.02 Location; Inspection. The Property will be initially located or based at the location specified in the applicable Property Schedule. Lessor shall have the right at all rensonnble times during business hours to enter into and upon the property of Lessee for the purpose of inspecting the Property. ARTICLE VI 6.01 Lease Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional, statutory or charter linlitntion of- requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the faith and credit or taxing power of Lessee. Upon the appropriation of Lease Payments for a fiscal year, the Lease Payments for said fiscal year, and only the Lease Payments for said current fiscal year, shall be a binding obligation of Lessee; provided that such obligation shall not include a pledge of the taxing power of Lessee. 6.02 Payment of Lease Payments. Lessee shall promptly pay Lease Payments under each Property Schedule, exclusively from legally available finds, in lawful money of the United States of America, to Lessor in such amounts and on such dates as described in the applicable Property Schedule, at Lessor's address set forth on the first page of this Agreement, unless Lessor instructs Lessee otherwise. Lessee shall pay Lessor a charge on any delinquent Lease Payments under a Property Schedule in an amount sufficient to coverall additional costs and expenses incurred by Lessor from such delinquent Lease Payment. In addition, Lessee shall pay a late charge of five cents per dollar or the highest amount pennited by applicable law, whichever is lower, on all delinquent Lease Payments and interest on said delinquent amounts from the date such amounts were due until paid at the rate of 12 %per annum or the maximum amount permitted by law, whichever is less.. 6.03 Interest Component. A portion of each Lease Payment due under each Property Schedule is paid as, and represents payment of, interest, and each Property Schedule hereunder shall set forth the interest component (or method of computation thereof) o£each Lease Payment thereunder during the Lease Tenn. 6.04 Lease Payments to be Unconditional. SUBJECT TO SECTION 6.06, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY SCHEDULES AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR AS PROVIDED IN SECTION 10.02. 6.05 Continuation of Lease by Lessee. Lessee intends to continue all Property Schedules entered into pursuant to this Agreement and to pay the Lease Payments thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to make all Lease Payments during the tern of all Property Schedules can be obtained. Lessee agrees that its staff will provide during the budgeting process for each budget year to the governing body of Lessee notification of any Lease Payments due under the Property Schedules during the following budget year. Notwithstanding this covenant, if Lessee fails to appropriate the Lease Payments for a Property Schedule pursuant to Section 6.06, such Property Schedule shall tenninate at the end of the then current Original Tenn or Renewal Tenn. Although Lessee has made this covenant, in the event that it fails to provide such notice, no remedy is provided and Lessee shall not be liable for any damages for its failure to so comply. 6.06 Nonappropriation. If during the then current Original Tenn or Renewal Tenn, sufficient funds are not appropriated to make Lease Payments required under a Property Schedule for the following fiscal year, Lessee shall be deemed to not have renewed such Property Schedule for the following fiscal year and the Property Schedule shall terminate at the end of the then current Original Tenn or Renewal Tenn and Lessee shall not be obligated to make Lease Payments under said Property Schedule beyond the then current fiscal year for which funds have been appropriated. Upon the occurrence of such nonappropriation (a "Nonappropriation Event ") Lessee shall, no later than the end of the fiscal year for which Lease Payments hnve been appropriated, deliver possession of the Property under said Property Schedule to Lessor. If Lessee fails to deliver possession of the Property to Lessor upon tennination of said Property Schedule by reason of a Nonappropriation Event, the tennination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion •of Lease Payments thereafler coming due that is attributable to the number of days after the tennination during which the Lessee fails to deliver possession and for any other loss suffered by Lessor as a result of Lessee's failure to deliver possession as required. In addition, Lessor may, by written instructions to any escrow agent who is holding proceeds of the Property Schedule, instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to Lessee's obligations under the Property Schedule and this Agreement. Lessee shall notify Lessor in writing within seven (7) days afler the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such notice shall not operate to extend the Lease Tenn or result in any liability to Lessee. DWT 8732378v4 0085238- 000001 7 f 6.07 Defeasance of Lease Payments. Lessee may at any time irrevocably deposit in escrow with a defeasance escrow agent for the purpose of paying all of the principal component and interest component accruing under a Property Schedule, a sum of cash and non- callable securities consisting of direct obligations of, or obligations the principal of an interest on which are unconditionally guaranteed by, the United States of America or any agency or instrumentality thereof, in such aggregate amount, bearing interest at such rates and maturing on such dates as shall be required to provide funds sufficient for this purpose. Upon such defeasance, all right, title and interest of Lessor in the Property under said Property Schedule shall terminate.• Lessee shall cause such investment to comply with the requirements of federal tax law so that the exclusion from gross income of the interest component of Lease Payments on said Property Schedule is not adversely affected. ARTICLE VII 7.01 Title to the Property. Upon acceptance of the Property by Lessee and unless otherwise required by the laws of the State, title to the Property shall vest in Lessee, subject to Lessor's interests under the applicable Property Schedule and this Agreement. 7.02 Personal Property. The Property is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwith- standing that the Property or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Property from any patty having an interest in any such real estate or building. 7.03 Securitv Interest. To the extent permitted by law and to secure the performance of all of Lessee's obligations under this Agreement with respect to a Property Schedule, including without limitation all Property Schedules now existing are hereafter executed, Lessee grants to Lessor, for the benefit of Lessor and its successors and assigns, a security interest constituting a first lien on Lessee's interest in all of the Property under the Property Schedule, whether now owned or hereafter acquired, all additions, attachments, alterations and accessions to the Property, all substitutions and replacements for the Property, and on any proceeds of any of the foregoing, including insurance proceeds. Lessee shall execute any additional documents, including financing statements, affidavits, notices and similar instruments, in form and substance satisfactory to Lessor, which Lessor deems necessary or appropriate to establish, maintain and perfect a security interest in the Property in favor of Lessor and its successors and assigns. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary or appropriate to establish, maintain and perfect such security interest. ARTICLE VIII 8.01 Maintenance of Property by Lessee. Lessee shall keep and maintain the Property in good condition and working order and in compliance with the manufacturers specifications, shall use, operate and maintain the Property in conformity with all laws and regulations concerning the Property's ownership, possession, use and maintenance, and shall keep the Property free and clear of all liens and claims, other than those created by this Agreement. Lessee shall have sole responsibility to maintain and repair the Property. Should Lessee fail to maintain, preserve and keep the Property in good repair and working order and in accordance with manufacturer's specifications, and if requested by Lessor, Lessee will enter into maintenance contracts for the Property in form approved by Lessor and with approved providers. 8.02 Liens, Taxes, Other Governmental Charees and Utility Charges. Lessee shall keep the Property free of all levies, liens and encumbrances, except for the interest of Lessor under this Agreement. The parties to this Agreement contemplate that the Property will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Property will be exempt from all property taxes. The Lease Payments payable by Lessee under this Agreement and the Property Schedules hereunder have been established to reflect the savings resulting from this exemption from taxation. Lessee will take such actions necessary under applicable law to obtain said exemption. Nevertheless, if the use, possession or acquisition of the Property is determined to be subject to taxation or later becomes subject to such taxes, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to the Property. Lessee shall pay all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the Property. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during the then current fiscal year of the Lease Tenn for such Property. 8.03 Insurance. At its own expense, Lessee shall maintain (a) casualty insurance insuring the Property against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount equal to at least the outstanding principal component of Lease Payments, and (b) liability insurance that protects Lessor from liability in all events in an amount reasonably acceptable to Lessor, and (c) worker's compensation insurance covering all employees working on, in, near or about the Property; provided that Lessee may self - insure against all such risks. All insurance proceeds from casualty losses shall be payable as hereinafter • provided in this Agreement. All such insurance shall be with insurers that are authorized to issue such insurance in the State. All such liability insurance shall name Lessor as an additional insured. All such casualty insurance shall contain a provision snaking any losses payable to Lessor and Lessee as their respective interests may appear. All such insurance shall contain a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such cancellation or modification. Such changes shall not become effective without Lessors prior written consent. Lessee shall furnish to Lessor, on or before the Commencement Date for each Property Schedule, and thereafter at Lessors request, certificates evidencing such coverage, or, if Lessee self - insures, a written description of its self - insurance program together with a certification from Lessee's risk manager or insurance agent or consultant to the effect that Lessee's self - insurance program provides adequate coverage against the risks listed above. 8.04 Advances. In the event Lessee shall fail to either maintain the insurance required by this Agreement or keep the Property in good repair and working order, Lessor spay, but shall be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof or maintain and repair the Property and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the Lease Tenn for the applicable Property Schedule and shall be due and payable on the next Lease Payment Date and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the date such amounts are advanced until paid at the rate of 12% per annum or the maximum amount permitted by law, whichever is less. ARTICLE IX 9.01 Damage or Destruction. If (a) the Property under a Property Schedule or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty, or (b) title to, or the temporary use of, the Property under a Property Schedule or any part thereof shall betaken under the exercise or threat of the power of eminent domain by any governmental body or by any person, firm or corporation acting pursuant to governmental authority, Lessor and Lessee will cause the Net Proceeds (as hereinafter defined) of any insurance claim, condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Property, unless Lessee shall have exercised its right to defease the Property Schedule as provided herein, or unless Lessee shall have exercised its option to purchase Lessor's interest in the Property if the Property Schedule so provides. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article IX, the tern "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof. 9.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01, Lessee shall (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds and, if Lessee shall snake any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable tinder Section 6.02, or (b) defease the Property Schedule pursuant to Section 6.07, or (c) exercise its option to purchase Lessor's interest in the Property pursuant to the optional purchase provisions of the Property Schedule, if any. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after such defeasance or purchase may be retained by Lessee. • DWT 8732378v4 0085238 - 000001 k V ARTICLE X 10.01 Disclaimer of Warranties. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY •MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; 11' BEING UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY, WHICHEVER IS LATER, AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. Lessee acknowledges that it has made (or will snake) the selection of the Property from the Vendor based on its own judgment and expressly disclaims any reliance upon any statements or representations made by Lessor. Lessee understands and agrees that (a) neither the Vendor nor any sales representative or other agent of Vendor, is (i) an agent of Lessor, or (ii) authorized to make or alter any tern or condition of this Agreement, and (b) no such waiver or alteration shall vary the terns of this Agreement unless expressly set forth herein. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, the Property Schedules, or the existence, fumishing, functioning or use of any item, product or service provided for in this Agreement or the Property Schedules. 10.02 Vendor's Warranties. Lessor hereby irrevocably assigns to Lessee all rights that Lessor may have to assert from time to time whatever claims and rights (including without limitation warranties) related to the Property against the Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the Property, and not against Lessor, nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such warranties of the Vendor of the Property. 10.03 Use of the Property. Lessee will not install, use, operate or maintain the Property improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by this Agreement and the applicable Property Schedule. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Property. In addition, Lessee agrees to comply in all respects with all laws of the jurisdiction in which its operations involving any item of Property may extend and any legislative, executive, administrative or judicial body exercising any power orjurisdiction over the items of the Property; provided that Lessee may contest in good faith the validity or application of arty such law or rule in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Property or its interest or rights under this Agreement. Lessee shnll promptly notify Lessor in writing of any pending or threatened investigation, inquiry, claim or action by any governmental authority which could adversely affect this Agreement, tiny Property Schedule or the Property thereunder. 10.04 Modifications. Subject to the provisions of this Section, Lessee shall have the right, at its own expense, to make alterations, additions, modifications or improvements to the Property. All such alterations, additions, modifications and improvements shall thereafter comprise part of the Property and shall be subject to the provisions of this Agreement. Such alterations, additions, modifications and improvements shall not in any way damage the Property, substantially alter its nature or cause it to be used for purposes other than those authorized under the provisions of state and federal law; and the Property, on completion of any alterations, additions, modifications or improvements made pursuant to this Section, shall be of a value which is equal to or greater than the value of the Property immediately prior to the making of such alterations, additions, modifications and improvements. Lessee shall, at its own expense, make such alterations, additions, modifications and improvements to the Property as may be required from time to time by applicable law or by any governmental authority. ARTICLE XI 11.01 Ontion to Purchase. Lessee shall have the option to purchase Lessor's entire interest in all of the Property subject to a Property Schedule and to terminate any restrictions herein on the Property under such Property Schedule on the last day of the Lease Tenn for a Property Schedule, if the Property Schedule is still in effect on such day, upon payment in full of the Lease Payments due thereunder plus payment of One ( I ) Dollar to Lessor. Lessee shall give written notice to Lessor of its intent to purchase Lessor's interest in the Property at least sixty (60) days prior to the last day of the Lease Tenn for applicable Property Schedule. Upon exercise of the purchase option as set forth in this Section 1 1.01 and payment of the purchase price under the applicable Property Schedule, and performance by Lessee of all other terns, conditions and provisions hereof, Lessor shall deliver to Lessee all such documents and instruments as Lessee may reasonably require to evidence the transfer, without warranty by or recourse to Lessor, of all of Lessor's right, title and interest in and to the Property subject to such Property Schedule to Lessee. in11.02 Ontion to Prepay. Lessee shall have the option to prepay in whole the Lease Payments due tinder a Property Schedule, but only if the Property Schedule so provides, and on the terns set forth in the Property Schedule. ARTICLE X11 12.01 Assignment by Lessor. Lessor's right, title and interest in, to and under each Property Schedule and the Property under such Property Schedule may be assigned and reassigned in whole or in part to one or more assignees or subassignees by Lessor without the necessity of obtaining the consent of Lessee; provided that any assignment shall not be effective until Lessee has received written notice, signed by the assignor, of the name, address and tax identification number of the assignee. Lessee shall retain all such notices as a register of all assignees and shall make all payments to the assignee or assignees designated in such register. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or financing statements that may be reasonably requested by Lessor or any assignee to protect its interests in this Agreement and the Property Schedules. 12.02 Property Schedules Separate Financings. Assignees of the Lessors rights in one Property Schedule shall have no rights in any other Property Schedule unless such rights have been separately assigned.. 12.03 Assienment and Subleasing by Lessee. NONE OF LESSEE'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THIS AGREEMENT AND IN THE PROPERTY MAY BE ASSIGNED, SUBLEASED OR ENCUMBERED BY LESSEE FOR ANY REASON, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR. 12.04 Release and Indemnification Covenants. To the extent permitted by applicable law, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and against any and all liability, obligation, loss, claim and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith, including, without limitation, counsel fees and expenses, penalties and interest (collectively, "Losses ") arising out of or resulting from the entering into this Agreement, any Property Schedules hereunder, the ownership of any item of the Property, the loss of federal tax exemption of the interest on any of the Property Schedules, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or return of any item of the Property or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Property resulting in damage to property or injury to or death to any person; provided, however, that Lessee shall not be required to indemnify Lessor for Losses arising out of or resulting from Lessors own willful or negligent conduct, or for Losses arising out of or resulting from Lessor preparation of disclosure material relating to certificates of participation in this Agreement and any Property Schedule (other than disclosure material provided to Lessor by Lessee). The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations under this Agreement, or the applicable Property Schedule, or the termination of the Lease Tenn for such Property Schedule for any reason. DWT 8732378v4 0085238- 000001 ARTICLE XIII 13.01 Events of Default Defined. Any of the following shall constitute an "Event of Default" under a Property Schedule: (a) Failure by Lessee to pay any Lease Payment under the Property Schedule or other payment required to be paid with respect thereto at the time specified therein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed with respect to the Property Schedule, other than as referred to in subparagraph (a) above, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to the Property Schedule or its execution, delivery or performance shall prove to have been false, incorrect, misleading or breached in any material respect on the date when made; (d) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be • unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or DWT 8732378v4 0085238- 000001 (e) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 60 consecutive days. The foregoing provisions of Section 13.01 are subject to the following limitation: if by reason of force maieure Lessee is unable in whole or in part to perform its agreements under this Agreement and the Property Schedule (other than the obligations on the part of Lessee contained in Article VI hereof) Lessee shall not be in default during the continuance of such inability. The tern "force maieure„ as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the govertunent of the United States or of the State or any of their departments, agencies or officials, or any civil or military authority; insurrections, riots, landslides, earthquakes, fires, storms, droughts, floods, explosions, breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee. A Nonappropriation Event is not an Event of Default. 13.02 Remedies on Default. Whenever any Event of Default exists with respect to a Property Schedule, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) Without tenninating the Property Schedule, and by written notice to Lessee, Lessor may declare all Lease Payments and other amounts payable by Lessee thereunder to the end of the then - current budget year of Lessee to be due, including without limitation delinquent Lease Payments under the Property Schedule from prior budget years, and such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law, whichever is less; (b) Lessor may terminate the Property Schedule, may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or require Lessee, at Lessee's expense, to promptly return any or all of the Property to the possession of Lessor at such place within the United States as Lessor shall specify, and Lessor may thereafter dispose of the Property in accordance with Article 9 of the Uniform Commercial Code in effect in the State; provided, however, that any proceeds from the disposition of the property in excess of the sum required to (i) pay off any outstanding principal component of Lease Payments, (ii) pay any other amounts then due under the Property Schedule, and (iii) pay Lessors costs and expenses associated with the disposition of the Property (including attorneys fees), shall be paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee except with respect to unpaid costs and expenses incurred by Lessor in connection with the disposition of the Property; (c) By written notice to any escrow agent who is holding proceeds of the Property Schedule, Lessor may instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to payment of Lessee's obligations under the Property Schedule; (d) Lessor may take any action, at law or in equity, that is permitted by applicable law and that may appear necessary or desirable to enforce or to protect any of its rights under the Property Schedule and this Agreement. Notwithstanding the foregoing, if the proceeds are insufficient to pay items (i) to (iii) in Section 13.02(6) in whole, Lessee shall remain obligated after application of proceeds to items (i) and (ii), to pay in whole the amounts for item (iii). 13.03 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article. 13.04 Costs and Attorney Fees. Upon the occurrence of an Event of Default by Lessee in the performance of any tern of this Agreement, Lessee agrees to pay to Lessor or reimburse Lessor for, in addition to all other amounts due hereunder, all of Lessors costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Any such costs shall be immediately due and payable upon written notice and demand given to Lessee, shall be secured by this Agreement until paid and shall bear interest at the rate of 12% per annum or the maximum amount permitted by law, whichever is less. In the event suit or action is instituted to enforce any of the terns of this Agreement, the prevailing parry shall be entitled to recover from the other party such Burn as the court may adjudge reasonable as attorneys' fees at trial or on appeal of such suit or action or in any bankruptcy proceeding, in addition to all other sums provided by law. • ARTICLE XIV 14.01 Notices. All notices, certificates or other cormnunications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage prepaid, to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party), to any assignee at its address as it appears on the registration books maintained by Lessee. 14.02 Arbitrage Certificates. Unless a separate Arbitrage Certificate is delivered on the Commencement Date, Lessee shall be deemed to make the following representations and covenants as of the Commencement Date for each Property Schedule: (a) The estimated total costs, including taxes, freight, installation, cost of issuance, of the Property under the Property Schedule will not be less than the total principal amount of the Lease Payments. (b) The Property under the Property Schedule has been ordered or is expected to be ordered within six months after the Commencement Date and the Property is expected to be delivered and installed, and the Vendor fully paid, within eighteen months from the Commencement Date. Lessee will pursue the completion of the Property and the expenditure of the net proceeds of the Property Schedule with due diligence. (c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the Lease Payments under the Property Schedule, or (ii) that may be used solely to prevent a default in the payment of the Lease Payments under the Property Schedule. (d) The Property under the Property Schedule has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last maturity of the Lease Payments under the Property Schedule. (e) There are no other obligations of Lessee which (i) are being sold within 15 days of the Commencement Date of the Property Schedule; (ii) are being sold pursuant to the same plan of financing as the Property Schedule; and (iii) are expected to be paid from substantially the same source of funds. (f) The officer or official who has executed the Property Schedule on Lessee's behalf is familiar with Lessee's expectations regarding the use and expenditure of the proceeds of the Property Schedule. To the best of Lessee's knowledge, information and belief, the facts and estimates set forth in herein are accurate and the expectations of Lessee set forth herein are reasonable. 14.03 Further Assurances. Lessee agrees to execute such other and further documents, including, without limitation, confirmatory financing statements, continuation statements, certificates of title and the like, and to take all such action as may be necessary or appropriate, from time to time, in the reasonable opinion of Lessor, to perfect, confirm, establish, reestablish, continue, or complete the interests of Lessor in this Agreement and the Property Schedules, to consummate the transactions contemplated hereby and thereby, and to carry out the purposes and intentions of this Agreement and the Property Schedules. 14.04 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. 14.05 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. 14.06 Waiver of Jury Trials. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) arising out of or relating to this Agreement or the actions of Lessor or Lessee in the negotiation, administration, performance or enforcement hereof. 14.07 Amendments, Changes and Modifications. This Agreement may be amended in writing by Lessor and Lessee to the extent the amendment or modification does not apply to • outstanding Property Schedules at the time of such amendment or modification. The consent of all assignees shall be required to any amendment or modification before such amendment or modification shall be applicable to any outstanding Property Schedule. 14.08 Execution in Counterparts. This Agreement and the Property Schedules hereunder may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. DWT 8732378v4 0085238- 000001 I� 14.09 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State. 14.10 Cantions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this • Agreement. • • written. IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above Lessor: U.S. Bancorp Equipment Finance, Inc. B: Name: Title: DWT 8732378v4 0085238- 000001 Lessee: Town of Avon Name: Title: Attest: By: Name: Title: ADDENDUM (COLORADO) Master Tax - Exempt Lease/Purchase Agreement THIS ADDENDUM, which is entered into as of August 26, 2011 between U.S. Bank Equipment Finance, Inc. ( "Lessor ") and Town of Avon ( "Lessee "), is intended to modify and supplement the Master Tax- Exempt Lease /Purchase Agreement between Lessor and Lessee of even date herewith (the "Master Agreement "). Capitalized terms not otherwise defined herein shall have the meanings set forth in the Master Agreement. Notwithstanding anything to the contrary set forth in the Master Agreement, title to the Property subject to each Property Schedule shall remain in Lessor during the Lease Term for such Property Schedule, subject to lessee's rights under the Master Agreement. IN WITNESS WHEREOF, Lessor and Lessee have caused this Addendum to be executed in their names by their duly authorized representatives as of the date first above written. Lessor: U.S. Bank Equipment Finance, Inc. Name: Title: DWT 16556357vl 0085238- 000005 Lessee: Town of Avon Name: Title: Attest: By Name: Title: • U • Oroperty Schedule No. O1 • Master Tax - Exempt Lease /Purchase Agreement This Property Schedule No. 01 is entered into as of the Commencement Date set forth below, pursuant to that certain Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement "), dated as of August 26, 2011, between U.S. Bancorp Equipment Finance, Inc.. and Town of Avon. 1. Interpretation. The terms and conditions of the Master Agreement are incorporated herein by reference as if fully set forth herein. Reference is made to the Master Agreement for all representations, covenants and warranties made by Lessee in the execution of this Property Schedule, unless specifically set forth herein. In the event of a conflict between the provisions of the Master Agreement and the provisions of this Property Schedule, the provisions of this Property Schedule shall control. All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement. 2. Commencement Date. The Commencement Date for this Property Schedule is August 26, 2011. 3. Property Description and Payment Schedule. The Property subject to this Property Schedule is described in Exhibit I hereto. Lessee shall not remove such property from the locations set forth therein without giving prior written notice to Lessor. The Lease Payment Schedule for this Property Schedule is set forth in Exhibit 1. 4. Opinion. The Opinion of Lessee's Counsel is attached as Exhibit 2. 5. Lessee's Certificate. The Lessee's Certificate is attached as Exhibit 3. 6. Proceeds. Lessor shall disburse the proceeds of this Property Schedule in accordance with the instructions attached hereto as Exhibit 4. 7. Acceptance Certificate. The form of Acceptance Certificate is attached as Exhibit 5. 8. Additional Purchase Option Provisions. In addition to the Purchase Option provisions set forth in the Master Agreement, Lease Payments payable under this Property Schedule shall be subject to prepayment in whole at any time by payment of the applicable Termination Amount set forth in Exhibit I (Payment Schedule) and payment of all accrued and unpaid interest through the date of prepayment. • 9. Bank Qualification and Arbitrage Rebate. Attached as Exhibit 6. 10. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule if the fully executed, original Master Agreement (including this Property Schedule and all ancillary documents) is not received by Lessor at its place of business by September 2. 2011. IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to be executed in their names by their duly authorized representatives as of the Commencement Date above. Lessor: U.S. Bancorp Equipment Finance, Inc. Name: Title: Lessee: Town of Avon B: Name: Title: Attest: B Name: Title: DWT 8732378v4 0085238- 000001 I3 XHIBIT 1 Property Description and Payment Schedule • Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon. THE PROPERTY IS AS FOLLOWS: The Property as more fully described in Exhibit A incorporated herein by reference and attached hereto. It includes all replacements, parts, repairs, additions, accessions and accessories incorporated therein or affixed or attached thereto and any and all proceeds of the foregoing, including, without limitation, insurance recoveries. PROPERTY LOCATION: PO Box 975; Avon, CO 81620 USE: Vehicles - This use is essential to the proper, efficient and economic functioning of Lessee or to the services that Lessee provides; and Lessee has immediate need for and expects to make immediate use of substantially all of the Property, which need is not temporary or expected to diminish in the foreseeable future. Lease Payment Schedule If the Due Dates are not defined in this Lease Payment Schedule, they shall be defined as the NA day of each NA period of this Lease Payment Schedule commencing with the Acceptance Date. Total Principal Amount: $563,811.00 Lessee: Town of Avon Name: Title: DWT 8732378v4 0085238- 000001 • 14 Beginning Prepayment Pay # Date Balance Payment Principal Interest Balance • 1 26- Feb -2012 563,811.00 45,210.00 36,295.55 8,914.45 543,340.91 2 26- Aug -2012 527,515.45 45,210.00 36,869.42 8,340.58 505,365.41 3 26- Feb -2013 490,646.03 45,210.00 37,452.37 7,757.63 466,789.47 4 26- Aug -2013 453,193.66 45,210.00 38,044.53 7,165.47 427,603.60 5 26- Feb -2014 415,149.13 45,210.00 38,646.05 6,563.95 387,798.17 6 26- Aug -2014 376,503.08 45,210.00 39,257.09 5,952.91 347,363.37 7 26- Feb -2015 337,245.99 45,210.00 39,877.78 5,332.22 306,289.25 8 26- Aug -2015 297,368.21 45,210.00 40,508.29 4,701.71 264,565.71 9 26- Feb -2016 256,859.91 45,210.00 41,148.77 4,061.23 222,182.47 10 26- Aug -2016 215,711.14 45,210.00 41,799.38 3,410.62 179,129.11 11 26- Feb -2017 173,911.76 45,210.00 42,460.27 2,749.73 135,395.03 12 26- Aug -2017 131,451.49 45,210.00 43,131.61 2,078.39 90,969.47 13 26- Feb -2018 88,319.88 45,210.00 43,813.57 1,396.43 45,841.50 14 26- Aug -2018 44, 506.31 45, 210.00 44, 506.31 703.69 0.00 Lessee: Town of Avon Name: Title: DWT 8732378v4 0085238- 000001 • 14 XMBIT 2 Lessees Counsel's O info [To be provided on letterhead of Lessee's counsel.] [Address to Lessor and Lessee] RE: Property Schedule No. 01 to Master Tax- Exempt Lease /Purchase Agreement between U.S. Bancorp Equipment Finance, Inc. and Town of Avon. Ladies and Gentlemen: We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the Master Tax - Exempt Lease /Purchase Agreement, dated as of August 26, 2011 (the "Master Agreement "), between Town of Avon, as lessee, and U.S. Bancorp Equipment Finance, Inc. as lessor ( "Lessor "), and the execution of Property Schedule No. 01 (the "Property Schedule ") pursuant to the Master Agreement. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion. All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement and Property Schedule. As to questions of fact material to our opinion, we have relied upon the representations of Lessee in the Master Agreement and the Property Schedule and in the certified proceedings and other certifications of public officials furnished to us without undertaking to verify the same by independent investigation. Based upon the foregoing, we are of the opinion that, under existing law: 1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) the police power. 2. Lessee has all requisite power and authority to enter into the Master Agreement and the Property Schedule and to perform its obligations thereunder. 3. The execution, delivery and performance of the Master Agreement and the Property Schedule by Lessee has been duly authorized by all necessary action on the part of Lessee. 4. All proceedings of Lessee and its governing body relating to the authorization and approval of the Master Agreement and the Property Schedule, the execution thereof and the transactions contemplated thereby have been conducted in accordance with all applicable open meeting laws and all other applicable state and federal laws. 5. Lessee has acquired or has arranged for the acquisition of the Property subject to the Property Schedule, and has entered into the Master Agreement and the Property Schedule, in compliance with all applicable public bidding laws. 6. Lessee has obtained all consents and approvals of other governmental authorities or agencies which may be required for the execution, delivery and performance by Lessee of the Master Agreement and the Property Schedule. 7. The Master Agreement and the Property Schedule have been duly executed and delivered by Lessee and constitute legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the enforcement thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting remedies or creditors' rights generally, and to the exercise of judicial discretion in appropriate cases. DWT 8732378v4 0085238- 000001 1 C5� 8. As of the date hereof, based on such inquiry and investigation as we have deemed sufficient, no litigation is pending, (or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master • Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the Property Schedule. This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an opinion with respect to the Property Schedule. Very truly yours, as Dated: • • DWT 8732378v4 0085238- 000001 • XMBIT 3 cssee s Certificate Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon. The undersigned, being the duly elected, qualified and acting hereby certify, as of August 26, 2011, as follows: the Town of Avon ( "Lessee ") do 1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or ordinance duly enacted, in accordance with all requirements of law, approve and authorize the execution and delivery of the above - referenced Property Schedule (the "Property Schedule ") and the Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement') by the following named representative of Lessee, to wit: NAME OF EXECUTING OFFICIAL TITLE OF EXECUTING OFFICIAL SIGNATURE OF EXECUTING OFFICIAL And/ Or 2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time the office set forth above. 3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted in accordance with the charter of the Lessee, if any, and the laws of the State. 4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with respect to this Property Schedule or any other Property Schedules under the Master Agreement. 5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body of Lessee. 6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule and to meet its other obligations for the current budget year and such funds have not been expended for other purposes. 7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the Property Schedule. DWT 8732378x4 0085238- 000001 Town of Avon By: Title: SIGNER MUST NOT BE THE SAME AS THE EXECUTING OFFICIALS SHOWN ABOVE. 11 XHIBIT 4 Payment of Proceeds Instructions • U.S. Bancorp Equipment Finance, Inc. 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 Re: Property Schedule No. 01 (the "Property Schedule ") to Master Tax - Exempt Lease /Purchase Agreement between U.S. Bancorp Equipment Finance, Inc. ( "Lessor ") and Town of Avon ( "Lessee "). Ladies and Gentlemen: The undersigned, an Authorized Representative of the Lessee hereby requests and authorizes Lessor to disburse the net proceeds of the Property Schedule as follows: Name of Payee: By check By wire transfer If by check, Payee's address: If by wire transfer, instructions as follows: • Pay to Bank Name: Bank Address: Bank Phone #: For Account of: Account No.: ABA No.: Town of Avon By: _ Name: Title: DWT 8732378v4 0085238- 000001 XHIBIT 5 [Acceptance i CCrt f CAtC U.S. Bancorp Equipment Finance, Inc. 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement between U.S. Bancorp Equipment Finance, Inc. and Town of Avon Ladies and Gentlemen: In accordance with the above - referenced Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement "), the undersigned ( "Lessee ") hereby certifies and represents to, and agrees with, U.S. Bancorp Equipment Finance, Inc. ( "Lessor "), as follows: (1) The Property, as such terms are defined in the above - referenced Property Schedule, has been acquired, made, delivered, installed and accepted on the date indicated below. (2) Lessee has conducted such inspection and /or testing of the Property as it deems necessary and appropriate and hereby acknowledges that it accepts the Property for all purposes. (3) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default or • a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof. • Date Town of Avon as Lessee By: _ Name: Title: DWT 8732378v4 0085238- 000001 /9 ATTACHED EXHIBIT A -- PROPERTY DESCRIPTION Peterbilt Plow Truck Model 355 Wt Related EquigMent GiAg Madel G29El9jN2 30ft Low ElMr Traaggu s • U DWT 8732378v4 0085238- 000001 �O XHIBIT 6 • ank Qualification And Arbitrage Rebate U.S. Bancorp Equipment Finance, Inc. 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and Town of Avon Bank Oualified Tax - Exempt Obligation under Section 265 Lessee hereby designates this Property Schedule as a "qualified tax- exempt obligation" as defined in Section 265(b)(3)(B) of the Code. Lessee reasonably anticipates issuing tax - exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds and including all tax- exempt obligations of subordinate entities of the Lessee) during the calendar year in which the Commencement Date of this Property Schedule falls, in an amount not exceeding $10,000,000. Arbitrajje Rebate Eighteen Month Exception: Pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of this Property Schedule will be expended for the •governmental purposes for which this Property Schedule was entered into, as follows: at least 15% within six months after the Commencement Date, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the Commencement Date. If Lessee is unable to comply with Section 1.148 -7(d) of the Treasury Regulations, Lessee shall compute rebatable arbitrage on this Agreement and pay rebatable arbitrage to the United States at least once every five years, and within 60 days after payment of the final Lease Payment due under this Agreement. • DWT 8732378v4 0085238- 000001 Lessee: Town of Avon B: Name: Title: " Lanmu for UCC Financing Statements Schedule 1 SECURED PARTY: U.S. Bancorp Equipment Finance, Inc. DEBTOR: Town of Avon This financing statement covers all of Debtor's right, title and interest, whether now owned or hereafter acquired, in and to the equipment leased to Debtor under Property Schedule No. 01 dated August 26, 2011 to that certain Master Tax - Exempt Lease Purchase Agreement dated as of August 26, 2011, in each case between Debtor, as Lessee, and Secured Party, as Lessor, together with all accessions, substitutions and replacements thereto and therefore, and proceeds (cash and non - cash), including, without limitation, insurance proceeds, thereof, including without limiting, all equipment described on Exhibit A attached hereto and made a part hereof. Debtor has no right to dispose of the equipment. DWT 8732378v4 0085238- 000001 C7 U • 2 Z_ INSURANCE AUTHORIZATION AND VERIFICATION Date: Property Schedule No: 01 isTo: Town of Avon (the "Lessee ") From: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ") PO Box 975 13010 SW 68th Parkway, Suite 100 Avon, CO 81620 Portland, OR 97223 Attn: Regina Eckendorf TO THE LESSEE: In connection with the above - referenced Property Schedule, Lessor requires proof in the form of this document, executed by both Lessee* and Lessee's agent, that Lessee's insurable interest in the financed property (the "Property") meets Lessor's requirements as follows, with coverage including, but not limited to, fire, extended coverage, vandalism, and theft: Lessor, AND ITS SUCCESSORS AND ASSIGNS, shall be covered as both ADDITIONAL INSURED and LENDER'S LOSS PAYEE with regard to all equipment financed or leased by policy holder through or from Lessor. All such insurance shall contain a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such cancellation or modification. Lessee must carry GENERAL LIABILITY (and /or, for vehicles, Automobile Liability) in the amount of no less than $1,000,000.00 (one million dollars). Lessee must carry PROPERTY Insurance (or, for vehicles, Physical Damage Insurance) in an amount no less than the 'Insurable Value' $563,811.00, with deductibles no more than $10,000.00. *Lessee: Please execute this form and return with your document package. Lessor will fax this form to your insurance agency for endorsement. In lieu of agent endorsement, Lessee's agency may submit insurance certificates demonstrating compliance with all requirements. If fully executed form (or Lessee - executed form plus certificates) is not provided within 15 days, we have the right to purchase such insurance at your expense. Should you have any questions, please contact Regina Eckendorf at (303) 585 -4025. By signing, Lessee authorizes the Agent named below: 1) to complete and return this form as indicated; and 2) to endorse the policy and subsequent renewals to reflect the required coverage as outlined above. •Agency /Agent: Address: • Phone /Fax: E -Mail Town of Avon By: Name: Title: TO TH E AGENT: In lieu of providing a certificate, please execute this form in the space below and promptly fax it to Lessor at . This fully endorsed form shall serve as proof that Lessee's insurance meets the above requirements. Agent hereby verifies that the above requirements have been met in regard to the Property listed below. Print Name Of Agency: X By: X (Agent's Signature) Print Name: X Date: Insurable Value: $ [amountoffrnancing] ATTACHED: PROPERTY DESCRIPTION FOR PROPERTY SCHEDULE NO.: 01 DWT 8732378v4 0085238- 000001 (-- TITLING ADDENDUM Addendum to the Master Tax - Exempt Lease /Purchase Agreement dated August 26, 2011, between the Town of Avon as Lessee and U.S.Bancorp Equipment Finance Inc as Lessor. 1. Lessor and Lessee hereby agree to amend the above referenced Agreement to add additional terms and conditions as set forth below: Lessee agrees that it will provide to Lessor the original title documentation to the Equipment. Lessee shall provide such title documentation to Lessor within 15 days of Lessee's receipt of such title documentation from the appropriate titling authority. Lessee's failure to provide Lessor with title documentation to the Equipment in a timely fashion shall be deemed a condition of Default as defined in the default paragraph herein subject to remedies available to Lessor pursuant to the remedies paragraph. You further agree to pay a month to month unobtained titling fee if we have not received the correct transferred title in our office. 2. Location: Lessor agrees that in regard to the location of the equipment, Lessee must be responsible for maintaining records showing the location of each piece of Leased equipment. Lessee will report this location to Lessor upon written request by Lessor. Failure to do so shall constitute a breach of the Agreement, which default shall be governed by the terms and conditions specified in the default and /or remedies paragraph of the Agreement. 3. Lessee will complete the physical titling of the vehicle as required by the state of Lessee's residence and guarantee US Bancorp Equipment Finance Inc. that US Bancorp Equipment Finance Inc. will receive the original title to the leased vehicle in a timely manner. Lessee agrees to indemnify US Bancorp Equipment Finance Inc. from any damage or loss it incurs, including legal fees, due to its failure to • complete its agreement herein. THE APPLICATION FOR TITLE MUST INCLUDE US BANCORP EQUIPMENT FINANCE INC., 13010 SW 681" Parkway, Suite 100, Portland, OR 97223 AS 1ST LIEN - HOLDER. By signing this Addendum, Lessee acknowledges the above changes to the Agreement and authorizes Lessor to make such changes. In all other respects the terms and conditions of the Agreement remain in full force and effect. U.S. Bancorp Equipment Finance, Inc. Town of Avon Lessor Lessee Signature Title Date 0313 X Signature Title Date • • • • 8038�� Information Return for Tax - Exempt Governmental Obligations Form ► Under Internal Revenue Code section 149(e) OMB No. 1545 -0720 (Rev. May 2010) ► See separate instructions. Department of the Treasury Caution: If the issue rice is under $100,000, use Form 8038 -GC. Internal Revenue Service p JjWM Keporting Autnority If Amended Return, check here ► ❑ 1 Issuer's name 2 Issuer's employer identification number (EIN) Town of Avon $ 84 0771088 3 Number and street (or P.O. box if mail is not delivered to street address) Room /suite 4 Report number (For IRS Use Only) PO Box 975 15 13F 5 City, town, or post office, state, and ZIP code 6 Date of issue Avon, CO 81620 17 7 Name of issue 8 CUSIP number Master Tax - Exempt Lease /Purchase Agreement 9 Name and title of officer of the issuer or other person whom the IRS may call for more information 10 Telephone number of officer or other person ( ) jigM Iy a OT Issue (enter the issue price) see instructions and attach schedule 11 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Transportation . . . . . . . . . . . . . . . . . . . . . . . . . 14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . 15 Environment (including sewage bonds) . . . . . . . . . . . . . . . . . 16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Other. Describe ► 19 If obligations are TANS or RANs, check only box 19a . . . . . ► ❑ If obligations are BANS, check only box 19b . . . . . . . . . . . . . . . ► ❑ 20 If obligations are in the form of a lease or installment sale, check box . . . . . . . ► ❑ 11 (d) Weighted average maturity (e) Yield 12 $ $ 13 % 14 15 16 17 18 90T'M Descrintion of Obligations_ Cmmnlptp fnr the pntirp icclip fnr which this fnrm ie hainn filari (a) Final maturity date (b) Issue price (c) Stated redemption price at maturity (d) Weighted average maturity (e) Yield 21 $ $ years % uses OT Irroceeas OT tsona issue incivaing underwriters' discount 22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . 22 23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . . 23 24 Proceeds used for bond issuance costs (including underwriters' discount) . 24 25 Proceeds used for credit enhancement . . . . . . . . . . . 25 26 Proceeds allocated to reasonably required reserve or replacement fund . 26 27 Proceeds used to currently refund prior issues . . . . . . . . 27 28 Proceeds used to advance refund prior issues . . . . . . . . 28 29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . 29 30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30 MON—Description of Refunded Bonds (Complete this part only for refunding bonds. 31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► years 32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years 33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ► 34 Enter the date(s) the refunded bonds were issued ► (MM /DD/YYYY) For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038 -G (Rev. 5 -2010) In Form 8038 -G (Rev. 5 -2010) Page 2 Miscellaneous 35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . 35 • 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . . 36a b Enter the final maturity date of the GIC IN- 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units . . . . . . . . . . . . . . . . . . . . . . . . . 37a b If this issue is a loan made from the proceeds of another tax - exempt issue, check box ► ❑ and enter the name of the issuer ► and the date of the issue ► 38 If the issuer has designated the issue under section 265(b)(3)(13)(i)(III) (small issuer exception), check box . . . . ► ❑ 39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . . . ► ❑ 40 If the issuer has identified a hedge, check box , , , , , , , , , , , , , , , , , , , , , , , , ► ❑ Signature and Consent Paid Use Only Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure of the issuer's return information, as necessary to process this return, to the person that I have authorized above. ' Signature of issuer's authorized representative Date Preparers' Date signature Firm's name (or , yours if self - employed), ' Type or print name and title Preparer's SSN or PTIN Check if self- emploved ❑ Form 8038-G (Rev. 5 -2010) • • C�� • • Instructions for Form Department of the Treasury 8038 -G Ira Internal Revenue Service (Rev. May 2010) Information Return for Tax - Exempt Governmental Obligations Section references are to the Internal Revenue Code unless otherwise noted. General Instructions Purpose of Form Form 8038 -G is used by issuers of tax - exempt governmental obligations to provide the IRS with the information required by section 149(e) and to monitor the requirements of sections 141 through 150. Who Must File IF the issue price THEN, for tax - exempt (line 21, column (b)) governmental is... obligations issued after December 31, 1986, issuers must file... $100,000 or more A separate Form 8038 -G for each issue Less than $100,000 Form 8038 -GC, Information Return for Small Tax - Exempt Governmental Bond Issues, Leases, and Installment Sales When To File File Form 8038 -G on or before the 15th day of the 2nd calendar month after the close of the calendar quarter in which the bond is issued. Form 8038 -G may not be filed before the issue date and must be completed based on the facts as of the issue date. Late filing. An issuer may be granted an extension of time to file Form 8038 -G under Section 3 of Rev. Proc. 2002 -48, 2002 -37 I.R.B. 531, if it is determined that the failure to file on time is not due to willful neglect. Enter at the top of the form "Request for Relief under Section 3 of Rev. Proc. 2002 -48" and attach a letter explaining why Form 8038 -G was not submitted to the IRS on time. Also indicate whether the bond issue in question is under examination by the IRS. Do not submit copies of the trust indenture or other bond documents. See Where To File below. Where To File File Form 8038 -G, and any attachments, with the Department of the Treasury, Internal Revenue Service Center, Ogden, UT 84201. Private delivery services. You can use certain private delivery services designated by the IRS to meet the "timely mailing as timely filing /paying" rule for tax returns and payments. These private delivery services include only the following: • DHL Express (DHL): DHL Same Day Service. • Federal Express (FedEx): FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2Day, FedEx International Priority, and FedEx International First. • United Parcel Service (UPS): UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express. The private delivery service can tell you how to get written proof of the mailing date. Other Forms That May Be Required For rebating arbitrage (or paying a penalty in lieu of arbitrage rebate) to the Federal government, use Form 8038 -T, Arbitrage Rebate, Yield Reduction and Penalty in Lieu of Arbitrage Rebate. For private activity bonds, use Form 8038, Information Return for Tax - Exempt Private Activity Bond Issues. For build America bonds (Direct Pay), build America bonds (Tax Credit) and recovery zone economic development bonds, complete Form 8038 -B, Information Return for Build America Bonds and Recovery Zone Economic Development Bonds. For qualified forestry conservation bonds, new clean renewable energy bonds, qualified energy conservation bonds, qualified zone academy bonds, qualified school construction bonds, clean renewable energy bonds, Midwestern tax credit bonds, and all other qualified tax credit bonds (except build America bonds), file Form 8038 -TC, Information Return for Tax Credit Bonds and Specified Tax Credit Bonds. Rounding to Whole Dollars You may show amounts on this return as whole dollars. To do so, drop amounts less than 50 cents and increase amounts from 50 cents through 99 cents to the next higher dollar. Questions on Filing Form 8038 -G For specific questions on how to file Form 8038 -G send an email to the IRS at TaxExemptBondQuestions@irs.gov and put "Form 8038 -G Question" in the subject line. In the email include a Cat. No. 63774D description of your question, a return email address, the name of a contact person, and a telephone number. Definitions Tax - exempt obligation. This is any obligation, including a bond, installment purchase agreement, or financial lease, on which the interest is excluded from income under section 103. Tax - exempt governmental obligation. A tax - exempt obligation that is not a private activity bond (see below) is a tax - exempt governmental obligation. This includes a bond issued by a qualified volunteer fire department under section 150(e). Private activity bond. This includes an obligation issued as part of an issue in which: • More than 10% of the proceeds are to be used for any private activity business use, and • More than 10% of the payment of principal or interest of the issue is either (a) secured by an interest in property to be used for a private business use (or payments for such property) or (b) to be derived from payments for property (or borrowed money) used for a private business use. It also includes a bond, the proceeds of which (a) are to be used to make or finance loans (other than loans described in section 141(c)(2)) to persons other than governmental units and (b) exceeds the lesser of 5% of the proceeds or $5 million. Issue price. The issue price of obligations is generally determined under Regulations section 1.148 -1(b). Thus, when issued for cash, the issue price is the first price at which a substantial amount of the obligations are sold to the public. To determine the issue price of an obligation issued for property, see sections 1273 and 1274 and the related regulations. Issue. Generally, obligations are treated as part of the same issue only if they are issued by the same issuer, on the same date, and as part of a single transaction, or a series of related transactions. However, obligations issued during the same calendar year (a) under a loan agreement under which amounts are to be advanced periodically (a "draw -down loan ") or (b) with a term not exceeding 270 days, may be treated as part of the same issue if the obligations are equally and ratably secured under a single indenture or loan agreement and are "1—/ issued under a common financing arrangement (for example, under the same official statement periodically updated to reflect changing factual circumstances). Also, for obligations issued under a draw -down loan that meets the requirements of the preceding sentence, obligations issued during different calendar years may be treated as part of the same issue if all of the amounts to be advanced under the draw -down loan are reasonably expected to be advanced within 3 years of the date of issue of the first obligation. Likewise, obligations (other than private activity bonds) issued under a single agreement that is in the form of a lease or installment sale may be treated as part of the same issue if all of the property covered by that agreement is reasonably expected to be delivered within 3 years of the date of issue of the first obligation. Arbitrage rebate. Generally, interest on a state or local bond is not tax - exempt unless the issuer of the bond rebates to the United States arbitrage profits earned from investing proceeds of the bond in higher yielding nonpurpose investments. See section 148(f). Construction issue. This is an issue of tax - exempt bonds that meets both of the following conditions: 1. At least 75% of the available construction proceeds are to be used for construction expenditures with respect to property to be owned by a governmental unit or a 501(c)(3) organization, and 2. All the bonds that are part of the issue are qualified 501(c)(3) bonds, bonds that are not private activity bonds, or private activity bonds issued to finance property to be owned by a governmental unit or a 501(c)(3) organization. In lieu of rebating any arbitrage that may be owed to the United States, the issuer of a construction issue may make an irrevocable election to pay a penalty. The penalty is equal to 11/2% of the amount of construction proceeds that do not meet certain spending requirements. See section 148(f)(4)(C) and the Instructions for Form 8038 -T. Specific Instructions Part I— Reporting Authority Amended return. An issuer may file an amended return to change or add to the information reported on a previously filed return for the same date of issue. If you are filing to correct errors or change a previously filed return, check the Amended Return box in the heading of the form. The amended return must provide all the information reported on the original return, in addition to the new or corrected information. Attach an explanation of the reason for the amended return and write across the top, "Amended Return Explanation." Line 1. The issuer's name is the name of the entity issuing the obligations, not the name of the entity receiving the benefit of the financing. For a lease or installment sale, the issuer is the lessee or the purchaser. Line 2. An issuer that does not have an employer identification number (EIN) should apply for one on Form SS -4, Application for Employer Identification Number. This form may be obtained at Social Security Administration offices or by calling 1- 800 - TAX -FORM (1- 800 - 829 - 3676). You can also get this form on the IRS website at www.irs.gov. You may receive an EIN by telephone by following the instructions for Form SS -4. Line 4. This line is for IRS use only. Do not make any entries in this box. Line 6. The date of issue is generally the date on which the issuer physically exchanges the bonds that are part of the issue for the underwriter's (or other purchaser's) funds. For a lease or installment sale, enter the date interest starts to accrue. Line 7. If there is no name of the issue, please provide other identification of the issue. Line 8. Enter the CUSIP (Committee of Uniform Securities Identification Procedure) number of the bond with the latest maturity. If the issue does not have a CUSIP number, write "None." Lines 9 and 10. Enter the name, title, and telephone number of the officer of the issuer whom the IRS may call for more information. If the issuer wishes to designate a person other than an officer of the issuer (including a legal representative or paid preparer) whom the IRS may call for more information with respect to this return, enter the name, title, and telephone number of such person here. Note. By authorizing a person other than an authorized officer of the issuer to communicate with the IRS and whom the IRS may call for more information with respect to this return, the issuer authorizes the IRS to communicate directly with the individual listed in line 9 and consents to the disclosure of the issuer's return information to that individual, as necessary, in order to process this return. Part II —Type of Issue ®Elections referred to in Part 11 are made on the original bond documents, not on this form. Identify the type of obligations issued by entering the corresponding issue price (see Issue price under Definitions on page 1). Attach a schedule listing names and EINs of organizations that are to use proceeds of these obligations if different from those of the issuer, include a brief summary of the use and indicate whether or not such user is a governmental or nongovernmental entity. -2- Line 18. Check the box on this line only if lines 11 through 17 do not apply. Enter a description of the issue in the space provided. Line 19. If the obligations are short-term tax anticipation notes or warrants (TANs) or short-term revenue anticipation notes or warrants (RANs), check box 19a. If the obligations are short-term bond anticipation notes (BANs), issued with the expectation that they will be refunded with the proceeds of long -term bonds at some future date, check box 19b. Do not check both boxes. Line 20. Check this box if property other than cash is exchanged for the obligation, for example, acquiring a police car, a fire truck, or telephone equipment through a series of monthly payments. (This type of obligation is sometimes referred to as a ,'municipal lease. ") Also check this box if real property is directly acquired in exchange for an obligation to make periodic payments of interest and principal. Do not check this box if the proceeds of the obligation are received in the form of cash, even if the term "lease" is used in the title of the issue. Part III — Description of Obligations Line 21. For column (a), the final maturity date is the last date the issuer must redeem the entire issue. For column (b), see Issue price under Definitions on page 1. For column (c), the stated redemption price at maturity of the entire issue is the sum of the stated redemption prices at maturity of each bond issued as part of the issue. For a lease or installment sale, write "N /A" in column (c). For column (d), the weighted average maturity is the sum of the products of the issue price of each maturity and the number of years to maturity (determined separately for each maturity and by taking into account mandatory redemptions), divided by the issue price of the entire issue (from line 21, column (b)). For a lease or installment sale, enter instead the total number of years the lease or installment sale will be outstanding. For column (e), the yield, as defined in section 148(h), is the discount rate that, when used to compute the present value of all payments of principal and interest to be paid on the obligation, produces an amount equal to the purchase price, including accrued interest. See Regulations section 1.148 -4 for specific rules to compute the yield on an issue. If the issue is a variable rate issue, write "VR" as the yield of the issue. For other than variable rate issues, carry the yield out to four decimal places (for example, 5.3125 %). If the issue is a lease or installment sale, enter the effective rate of interest being paid. .7 • • • • Part IV —Uses of Proceeds of Bond Issue For a lease or installment sale, write "N /A" in the space to the right of the title for Part IV. Line 22. Enter the amount of proceeds that will be used to pay interest from the date the bonds are dated to the date of issue. Line 24. Enter the amount of the proceeds that will be used to pay bond issuance costs, including fees for trustees and bond counsel. If no bond proceeds will be used to pay bond issuance costs, enter zero. Do not leave this line blank. Line 25. Enter the amount of the proceeds that will be used to pay fees for credit enhancement that are taken into account in determining the yield on the issue for purposes of section 148(h) (for example, bond insurance premiums and certain fees for letters of credit). Line 26. Enter the amount of proceeds that will be allocated to such a fund. Line 27. Enter the amount of the proceeds that will be used to pay principal, interest, or call premium on any other issue of bonds within 90 days of the date of issue. Line 28. Enter the amount of the proceeds that will be used to pay principal, interest, or call premium on any other issue of bonds after 90 days of the date of issue, including proceeds that will be used to fund an escrow account for this purpose. Part V— Description of Refunded Bonds Complete this part only if the bonds are to be used to refund a prior issue of tax - exempt bonds. For a lease or installment sale, write "N /A" in the space to the right of the title for Part V. Lines 31 and 32. The remaining weighted average maturity is determined without regard to the refunding. The weighted average maturity is determined in the same manner as on line 21, column (d). Line 34. If more than a single issue of bonds will be refunded, enter the date of issue of each issue. Enter the date in an MM /DD/YYYY format. Part VI— Miscellaneous Line 35. An allocation of volume cap is required if the nonqualified amount with respect to the issue exceeds $15 million but does not exceed the amount which would cause the issue to be private activity bonds. Line 36. If any portion of the gross proceeds of the issue are or will be invested in a guaranteed investment contract (GIC), as defined in Regulations section 1.148 -1(b), enter the amount of the gross proceeds so invested, as well as the final maturity date of the GIC. Line 37a. Enter the amount of this issue used to fund a loan to another governmental unit, the interest of which is tax - exempt. Line 39. Check this box if the issue is a construction issue and an irrevocable election to pay a penalty in lieu of arbitrage rebate has been made on or before the date the bonds were issued. The penalty is payable with a Form 8038 -T for each 6 -month period after the date the bonds are issued. Do not make any payment of penalty in lieu of arbitrage rebate with this form. See Rev. Proc. 92 -22, 1992 -1 C.B. 736 for rules regarding the "election document." Line 40. Check this box if the issuer identified a hedge on its books and records in accordance with Regulations sections 1.148- 4(h)(2)(viii) and 1.148- 4(h)(5). These regulations permit an issuer of tax - exempt bonds to identify a hedge for it to be included in yield calculations for computing arbitrage. Signature and Consent An authorized officer of the issuer must sign Form 8038 -G and any applicable certification. Also print the name and title of the person signing Form 8038 -G. The authorized representative of the issuer signing this form must have the authority to consent to the disclosure of the issuer's return information, as necessary to process this return, to the person(s) that have been designated in Form 8038 -G. Note. If authority is granted in line 9 for the IRS to communicate with a person other than an officer of the issuer, by signing this form, the issuer's authorized representative consents to the disclosure of the issuer's return information, as necessary to process this return, to such person. Paid Preparer If an authorized officer of the issuer filled in this return, the paid preparer's space should remain blank. Anyone who prepares the return but does not charge -3- the organization should not sign the return. Certain others who prepare the return should not sign. For example, a regular, full -time employee of the issuer, such as a clerk, secretary, etc., should not sign. Generally, anyone who is paid to prepare a return must sign it and fill in the other blanks in the Paid Preparer's Use Only area of the return. The paid preparer must: • Sign the return in the space provided for the preparer's signature, • Enter the preparer information, and • Give a copy of the return to the issuer. Privacy Act and Paperwork Reduction Act Notice. We ask for the information on this form to carry out the Internal Revenue laws of the United States. You are required to give us the information. We need it to ensure that you are complying with these laws. Section 6109 requires paid preparers to provide their identifying number. You are not required to provide the information requested on a form that is subject to the Paperwork Reduction Act unless the form displays a valid OMB control number. Books or records relating to a form or its instructions must be retained as long as their contents may become material in the administration of any Internal Revenue law. Generally, tax returns and return information are confidential, as required by section 6103. The time needed to complete and file this form varies depending on individual circumstances. The estimated average time is: Learning about the law or 2 hr., 41 min. the form ............. Preparing, copying, 3 hr., 3 min. assembling, and sending the form to the IRS ...... If you have comments concerning the accuracy of these time estimates or suggestions for making this form simpler, we would be happy to hear from you. You can write to the Internal Revenue Service, Tax Products Coordinating Committee, SE:W:CAR:M:P:T:T:SP, 1111 Constitution Ave. NW, IR -6526, Washington, DC 20224. Do not send the form to this office. Instead, see Where To File on page 1. �i� ESCROW AGREEMENT • THIS ESCROW AGREEMENT ( "Escrow Agreement") is made as of August 26, 2011 by and among U.S. Bancorp Equipment Finance, Inc. ("Lessor"), Town of Avon ("Lessee") and U.S. BANK NATIONAL ASSOCIATION, as escrow agent ( "Escrow Agent"). Lessor and Lessee have heretofore entered into that certain Master Tax - Exempt Lease Purchase Agreement dated as of August 26, 2011 (the "Master Agreement ") and a Schedule No. 01 thereto dated August 26, 2011 (the "Schedule" and, together with the terms and conditions of the Agreement incorporated therein, the "Agreement "). The Schedule contemplates that certain personal property described therein (the "Equipment ") is to be acquired from the vendor(s) or manufacturer(s) thereof (the "Vendor "). After acceptance of the Equipment by Lessee, the Equipment is to be financed by Lessor to Lessee pursuant to the terms of the Agreement. The Master Agreement further contemplates that Lessor will deposit an amount equal to the anticipated aggregate acquisition cost of the Equipment (the "Purchase Price"), being $563,811.00, with Escrow Agent to be held in escrow and applied on the express terms set forth herein. Such deposit, together with all interest and other additions received with respect thereto (hereinafter the "Escrow Fund") is to be applied to pay the Vendor its invoice cost (a portion of which may, if required, be paid prior to final acceptance of the Equipment by Lessee); and, if applicable, to reimburse Lessee for progress payments already made by it to the Vendor of the Equipment. • The parties desire to set forth the terms on which the Escrow Fund is to be created and to establish the rights and responsibilities of the parties hereto. Now, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) in hand paid, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. (a) Escrow Agent hereby agrees to serve as escrow agent upon the terms and conditions set forth herein. (b) The moneys and investments held in the Escrow Fund are irrevocably held in trust for the benefit of Lessee and Lessor, and such moneys, together with any income or interest earned thereon, shall be expended only as provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either Lessee or Lessor. Lessor, Lessee and Escrow Agent intend that the Escrow Fund constitute an escrow account in which Lessee has no legal or equitable right, title or interest until satisfaction in full of all conditions contained herein for the disbursement of funds by the Escrow Agent therefrom. However, if the parties' intention that Lessee shall have no legal or equitable right, title or interest until all conditions for disbursement are satisfied in full is not respected in any legal proceeding, the parties hereto intend that Lessor have a security interest in the Escrow Fund, and such security interest is hereby granted by Lessee to secure payment of all sums due to Lessor under the Master Agreement. For such purpose, Escrow Agent hereby agrees to act as agent for Lessor in connection with the perfection of such security DWT 17415530v1 0085238- 000005 • 30 • interest and agrees to note, or cause to be noted, on all books and records relating to the Escrow Fund, the Lessor's interest therein. 2. On such day as is determined to the mutual satisfaction of the parties (the "Closing Date"), Lessor shall deposit with Escrow Agent cash in the amount of the Purchase Price, to be held in escrow by Escrow Agent on the express terms and conditions set forth herein. On the Closing Date, Escrow Agent agrees to accept the deposit of the Purchase Price by Lessor, and further agrees to hold the amount so deposited together with all interest and other additions received with respect thereto, as the Escrow Fund hereunder, in escrow on the express terms and conditions set forth herein. 3. Escrow Agent shall at all times segregate the Escrow Fund into an account maintained for that express purpose, which shall be clearly identified on the books and records of Escrow Agent as being held in its capacity as Escrow Agent. Securities and other negotiable instruments comprising the Escrow Fund from time to time shall be held or registered in the name of Escrow Agent (or its nominee). The Escrow Fund shall not, to the extent permitted by applicable law, be subject to levy or attachment or lien by or for the benefit of any creditor of any of the parties hereto (except with respect to the security interest therein held by Lessor). 4. The cash comprising the Escrow Fund from time to time shall be invested and reinvested by Escrow Agent in one or more investments as directed by Lessee in Exhibit 1. Lessee represents and warrants to Escrow Agent and Lessor that the investments selected by • Lessee for investment of the Escrow Fund are permitted investments for Lessee under all applicable laws. Escrow Agent will use due diligence to collect amounts payable under a check or other instrument for the payment of money comprising the Escrow Fund and shall promptly notify Lessee and Lessor in the event of dishonor of payment under any such check or other instruments. Interest or other amounts earned and received by Escrow Agent with respect to the Escrow Fund shall be deposited in and comprise a part of the Escrow Fund. Escrow Agent shall maintain accounting records sufficient to permit calculation of the income on investments and interest earned on deposit of amounts held in the Escrow Fund. C, 5. Upon request by Lessee and Lessor, Escrow Agent shall send monthly statements of account to Lessee and Lessor, which statements shall set forth all withdrawals from and interest earnings on the Escrow Fund as well as the investments in which the Escrow Fund is invested. 6. Escrow Agent shall take the following actions with respect to the Escrow Fund: (a) Upon Escrow Agent's acceptance of the deposit of the Purchase Price, an amount equal to Escrow Agent's set -up fee, as set forth on Exhibit 2 hereto, shall be disbursed from the Escrow Fund to Escrow Agent in payment of such fee. (b) From time to time, Escrow Agent shall pay costs of the Equipment upon receipt of duly executed Requisition Request form attached as Exhibit 3 hereto (each, a "Requisition"), subject to Lessor's prior written approval of each such Requisition. The DWT 17415530v1 0085238- 000005 -2- 31 final Requisition shall be accompanied by a duly executed Certificate of Acceptance form • attached as Exhibit 4 hereto. (c) Upon receipt by Escrow Agent of written notice from Lessor that an Event of Default or an Event of Nonappropriation (if provided for under the Master Agreement) has occurred under the Agreement, all funds then on deposit in the Escrow Fund shall be paid to Lessor for application in accordance with the Master Agreement, and this Escrow Agreement shall terminate. (d) Upon receipt by Escrow Agent of written notice from Lessor that the purchase price of the Equipment has been paid in full, Escrow Agent shall pay the funds then on deposit in the Escrow Fund to Lessor to be applied first to the next Lease Payment due under the Master Agreement, and second, to prepayment of the principal component of Lease Payments in inverse order of maturity without premium. To the extent the Agreement is not subject to prepayment, Lessor consents to such prepayment to the extent of such prepayment amount from the Escrow Fund. Upon disbursement of all amounts in the Escrow Fund, this Escrow Agreement shall terminate. (e) This Escrow Agreement shall terminate eighteen (18) months from the date of this Escrow Agreement. It may, however, be extended by mutual consent of Lessee and Lessor in writing to Escrow Agent. All funds on deposit in the Escrow Fund at the time of termination under this paragraph shall be transferred to Lessor and shall be applied first to the next Lease Payment due under the Master Agreement, and second to prepayment of the principal component of Lease Payments in inverse order of maturity • without premium. To the extent the Master Agreement is not subject to prepayment, Lessor consents to such prepayment to the extent of such prepayment amount from the Escrow Fund. 7. The fees and expenses, including any legal fees, of Escrow Agent incurred in connection herewith shall be the responsibility of Lessee. The basic fees and expenses of Escrow Agent shall be as set forth on Exhibit 2 and Escrow Agent is hereby authorized to deduct such fees and expenses from the Escrow Fund as and when the same are incurred without any further authorization from Lessee or Lessor. Escrow Agent may employ legal counsel and other experts as it deems necessary for advice in connection with its obligations hereunder. Escrow Agent waives any claim against Lessor with respect to compensation hereunder. 8. Escrow Agent shall have no liability for acting upon any written instruction presented by Lessor in connection with this Escrow Agreement, which Escrow Agent in good faith believes to be genuine. Furthermore, Escrow Agent shall not be liable for any act or omission in connection with this Escrow Agreement except for its own negligence, willful misconduct or bad faith. Escrow Agent shall not be liable for any loss or diminution in value of the Escrow Fund as a result of the investments made by Escrow Agent. 9. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice to Lessor and Lessee. Lessor may at any time remove Escrow Agent as Escrow Agent under this -3- DWT 17415530vl0085238- 000005 • .R2 • Escrow Agreement upon written notice. Such removal or resignation shall be effective on the date set forth in the applicable notice. Upon the effective date of resignation or removal, Escrow Agent will transfer the Escrow Fund to the successor Escrow Agent selected by Lessor. 10. Lessee hereby represents, covenants and warrants that pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of the Agreement will be expended for the governmental purposes for which the Agreement was entered into, as follows: at least 15% within six months after the Commencement Date, such date being the date of deposit of funds into the Escrow Fund, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the Commencement Date. If Lessee is unable to comply with Section 1.148 -7(d) of the Treasury Regulations, Lessee shall, at its sole expense and cost, compute rebatable arbitrage on the Agreement and pay rebatable arbitrage to the United States at least once every five years, and within 60 days after payment of the final rental or Lease Payment due under the Agreement. 11. In the event of any disagreement between the undersigned or any of them, and /or any other person, resulting in adverse claims and demands being made in connection with or for any moneys involved herein or affected hereby, Escrow Agent shall be entitled at its option to refuse to comply with any such claim or demand, so long as such disagreement shall continue, and in so refusing Escrow Agent may refrain from making any delivery or other disposition of any moneys involved herein or affected hereby and in so doing Escrow Agent shall not be or become liable to the undersigned or any of them or to any person or party for its failure or refusal • to comply with such conflicting or adverse demands, and Escrow Agent shall be entitled to continue so to refrain and refuse so to act until: • (a) the rights of the adverse claimants have been finally adjudicated in a court assuming and having jurisdiction of the parties and the moneys involved herein or affected hereby; or (b) all differences shall have been adjusted by Master Agreement and Escrow Agent shall have been notified thereof in writing signed by all of the persons interested. 12. All notices (excluding billings and communications in the ordinary course of business) hereunder shall be in writing, and shall be sufficiently given and served upon the other party if delivered (a) personally, (b) by United States registered or certified mail, return receipt requested, postage prepaid, (c) by an overnight delivery by a service such as Federal Express or Express Mail from which written confirmation of overnight delivery is available, or (d) by facsimile with a confirmation copy by regular United States mail, postage prepaid, addressed to the other party at its respective address stated below the signature of such party or at such other address as such party shall from time to time designate in writing to the other party, and shall be effective from the date of mailing. 13. This Escrow Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns. No rights or obligations of Escrow DWT 17415530v1 0085238- 000005 -4- W Agent under this Escrow Agreement may be assigned without the prior written consent of • Lessor. 14. This Escrow Agreement shall be governed by and construed in accordance with the laws in the state of the Escrow Agent's location. This Escrow Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof, and no waiver, consent, modification or change of terms hereof shall bind any party unless in writing signed by all parties. IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly executed as of the day and year first above set forth. DWT 17415530vl0085238- 000005 U.S. Bancorp Equipment Finance, Inc., as Lessor By Name: Title: Address: 13010 SW 68` Parkway, Suite 100 Portland OR 97223 Town of Avon as Lessee • By Name: Title: Address: PO Box 975 Avon, CO 81620 U.S. BANK NATIONAL ASSOCIATION, as Escrow Agent By Name: Title: Address: U.S. Bank National Association 950 17`h Street, 12`h Floor Denver, CO 80202 _5_ • • EXHIBIT 1 INVESTMENT DIRECTION LETTER U.S. Bank National Association 950 17`h Street, 12`h Floor Denver, CO 80202 Re: Escrow Agreement dated as of August 26, 2011, U.S. Bancorp Equipment Finance, Inc. as Lessor, Town of Avon as Lessee, and U.S. Bank National Association, as Escrow Agent Ladies and Gentlemen: Pursuant to the above - referenced Escrow Agreement, $563.11 8.00 will be deposited in escrow with you on or about August 26, 2011. Such funds shall be invested in one or more of the following qualified investments in the amounts indicated: U.S. Bank Money Market Account Agent is hereby directed to deposit and invest funds in the U.S. Bank Money Market Savings Account. Depositors acknowledge that the U. S. Bank Money Market account is a U. S. Bank National Association ( "U.S. Bank ") interest - bearing money market deposit account designed to meet the needs of U.S. Bank's Corporate Trust Services Escrow Group and other Corporate Trust customers of U.S. Bank. Selection of this investment includes authorization to place funds on deposit with U.S. Bank. U. S. Bank uses the daily balance method to calculate interest on this account (actual /365 or 366). This method applies a daily periodic • rate to the principal balance in the account each day. Interest is accrued daily and credited monthly to the account. Interest rates currently offered on the accounts are determined at U. S. Bank's discretion and may be tiered by customer deposit amount. The owner of the accounts is U. S. Bank as Agent for its trust customers. U.S. Bank's trust department performs all account deposits and withdrawals. Each customer's deposit is insured by the Federal Deposit Insurance Corporation as determined under FDIC Regulations, up to applicable FDIC limits. Any and all interest earned on the Assets after the deposit shall be added to the Assets and shall become a part thereof. Agent shall thereafter hold, maintain and utilize the Assets pursuant to the terms and conditions of this Agreement. Depositors shall provide Agent with a W -9 or original W -8 IRS tax form prior to the disbursement of interest and Agent will file the appropriate 1099 or other required forms pursuant to Federal and Texas laws. A statement of citizenship will be provided if requested by Agent. Agent shall not be responsible for maximizing the yield on the Assets. Agent shall not be liable for losses, penalties or charges incurred upon any sale or purchase of any such investment. DWT 17415530v10085238- 000005 Very truly yours, By: Town of Avon Name: Title: 3 S EXHIBIT 2 ESCROW AGENT FEES AND EXPENSES SET -UP FEES $0.00 payable from the Escrow Fund upon acceptance of escrow deposit. EXPENSES Any and all out -of- pocket expenses incurred by Escrow Agent will be the responsibility of Lessee and paid from the Escrow Fund. DWT 17415530v10085238- 000005 • • • EXHIBIT 3 • REQUISITION REQUEST The Escrow Agent is hereby requested to pay from the Escrow Fund established and maintained under that certain Escrow Agreement dated as of August 26, 2011 (the "Escrow Agreement") by and among U.S. Bancorp Equipment Finance, Inc. (the "Lessor"), Town of Avon (the "Lessee"), and U.S. Bank National Association (the "Escrow Agent "), the amount set forth below to the named payee(s). The amount shown is due and payable under a purchase order or contract (or has been paid by and not previously reimbursed to Lessee) with respect to equipment being financed under that certain Master Tax - Exempt Lease Purchase Agreement dated as of August 26, 2011 (the "Master Agreement") and Schedule 01 thereto dated August 26, 2011 (the "Schedule" and, together with the terms and conditions of the Master Agreement incorporated therein, the "Master Agreement "), by and between the Lessor and the Lessee, and has not formed the basis of any prior requisition request. PAYEE AMOUNT Total requisition amount $ • The undersigned, as Lessee under the Master Agreement, hereby certifies: 1. The items of the Equipment being acquired with the proceeds of this disbursement have been delivered and installed at the location(s) contemplated by the Master Agreement. The Lessee has conducted such inspection and /or testing of the Equipment being acquired with the proceeds of this disbursement as it deems necessary and appropriate, and such Equipment has been accepted by Lessee. 2. The costs of the Equipment to be paid from the proceeds of this disbursement have been properly incurred, are a proper charge against the Escrow Fund and have not been the basis of any previous disbursement. 3. No part of the disbursement requested hereby will be used to pay for materials not yet incorporated into the Equipment or for services not yet performed in connection therewith. 4. The Equipment is covered by insurance in the types and amounts required by the Agreement. 5. No Event of Default or Event of Nonappropriation (if applicable), as each such term is defined in the Master Agreement, and no event which with the giving of notice or lapse of time, or both, would become such an Event of Default or Event of Nonappropriation has occurred and is continuing on the date hereof. DWT 17415530vl 0085238- 000005 S7 6. If Lessee paid an invoice prior to the commencement date of the Master Agreement, and is requesting reimbursement for such payment, Lessee has satisfied the requirements for reimbursement • set forth in Treas. Reg. § 1.150 -2. Request Date: Town of Avon as Lessee By Name: _ Title: Date: U.S. Bancorp Equipment Finance, Inc. as Lessor Title: Date: WE DWT 17415530vl 0085238- 000005 • • • U.S. Bank Equipment Finance, Inc. 13010 SW 68th Parkway, Suite 100 Portland, OR 97223 • Exhibit 4 Re: Property Schedule No. 01 to Master Tax- Exempt Lease Purchase Agreement between U.S. Bank Equipment Finance, Inc. and Town of Avon Ladies and Gentlemen: In accordance with the above - referenced Master Tax - Exempt Lease Purchase Agreement (the "Master Agreement "), the undersigned ( "Lessee ") hereby certifies and represents to, and agrees with, U.S. Bank Equipment Finance, Inc. ( "Lessor "), as follows: (1) The Property, as such terms are defined in the above - referenced Property Schedule, has been acquired, made, delivered, installed and accepted on the date indicated below. (2) Lessee has conducted such inspection and /or testing of the Property as it deems necessary and appropriate and hereby acknowledges that it accepts the Property for all purposes. (3) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default or an Event of Nonappropriation (as such term is defined in the Agreement) exists at the date hereof. Date: Town of Avon as Lessee DWT 17415530vl0085238- 000005 3y