URA Res. No. 2009-02Govt- v196N� K� gZ4 O U-*kolt
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RESOLUTION OF THE BOARD OF COMMISSIONERS OF
THE AVON URBAN RENEWAL AUTHORITY
AUTHORIZING, APPROVING AND DIRECTING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT
FOR A LOAN IN THE ORIGINAL PRINCIPAL AMOUNT OF
NOT TO EXCEED $7,200,000, AND CERTAIN OTHER
DOCUMENTS IN CONNECTION THEREWITH, FOR THE
PURPOSE OF REFINANCING THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF AN URBAN
RENEWAL PROJECT
WHEREAS, the Avon Urban Renewal Authority (the "Authority ") is a public
body corporate and politic, and has been duly created, organized, established and authorized by
the Town of Avon, Colorado (the "Town ") to transact business and exercise its powers as an
urban renewal authority, all under and pursuant to the Colorado Urban Renewal Law,
constituting Part I of Article 25 of Title 31, Colorado Revised Statutes, as amended (the "Act ");
and
WHEREAS, pursuant to Section 31 -25 -105 of the Act, the Authority has the
power to borrow money and to apply for and accept advances, loans, grants and contributions
from any source for any of the purposes of the Act and to give such security as may be required;
and
WHEREAS, pursuant to Section 31 -25 -109 of the Act, the Authority has the
power to issue refunding or other bonds (defined by the Act to mean any bonds, notes, interim
certificates or receipts, temporary bonds, certificates of indebtedness, debentures or other
obligations) from time to time in its discretion for the payment, retirement, renewal or extension
of any bonds previously issued by it under the Act; and
WHEREAS, the Authority is authorized to issue bonds without an election; and
WHEREAS, the Authority has previously issued its Avon Urban Renewal
Authority, Tax Increment Adjustable Rate Revenue Bonds (Town Center West Area Urban
Renewal Project) Series 2008 (the "Series 2008 Bonds") in the aggregate principal amount of
$25,000,000 (the "Prior Bonds "); and
WHEREAS, an urban renewal plan, known as the "Town Center West Area
Urban Renewal Plan" (the "Urban Renewal Plan "), was duly and regularly approved by the
Town Council of the Town for an urban renewal project under the Act; and
WHEREAS, all applicable requirements of the Act and other provisions of law
for and precedent to the adoption and approval by the Town of the Urban Renewal Plan have
been duly complied with; and
WHEREAS, the Authority has determined that it is in the best interests of the
Authority and the citizens and taxpayers of the Town that the Prior Bonds be refunded (the
"Refunding Project"); and
WHEREAS, the Authority intends to enter into a Loan Agreement with Vectra
Bank Colorado, National Association ( "Vectra ") to obtain a loan in the principal amount of not
to exceed $7,200,000 (the "Loan ") in order to finance the costs of the Refunding Project; and
WHEREAS, the proceeds derived from the Loan, after payment of the costs of
issuance properly allocable thereto, along with such other legally available moneys of the
Authority as may be necessary, shall be used to pay and cancel the Prior Bonds on the date of
funding of the Loan, as more particularly hereinafter set forth; and
WHEREAS, the Authority specifically elects to apply the provisions of Title 11,
Article 57, Part 2, C.R.S. (the "Supplemental Act ") to the Loan; and
WHEREAS, the Loan shall be a limited obligation of the Authority payable solely
from the Pledged Revenue (as defined in the Loan Agreement); and
WHEREAS, the Board desires to delegate to the Executive Director of the
Authority the power to determine the terms of the Loan consistent with the provisions of this
Resolution; and
WHEREAS, there are on file with the Secretary of the Board: (a) the proposed
form of the Loan Agreement; (b) the proposed form of the promissory note, in the form attached
to the Loan Agreement (the "Note "), to be executed by the Authority and delivered to Vectra
evidencing the Authority's obligations to pay the Loan; and (c) the proposed form of the 2009
Cooperation Agreement between the Authority and the Town (the "Cooperation Agreement ").
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF
COMMISSIONERS OF THE AVON URBAN RENEWAL AUTHORITY, COLORADO,
THAT:
Section 1. All actions (not inconsistent with the provisions of this Resolution)
heretofore taken by the Board and the officers of the Authority directed toward the Refunding
Project and the entering into of the Loan Agreement, the Note and the Cooperation Agreement
hereby are ratified, approved and confirmed.
Section 2. The forms, terms and provisions of the Loan Agreement, the Note
and the Cooperation Agreement (collectively, the "Documents ") hereby are authorized and
approved, and the Authority shall enter into the Documents in the respective forms as are on file
with the Secretary of the Board, but with such changes therein as shall be consistent with this
Resolution and as the Chairman of the Board or the Executive Director of the Authority shall
approve, the execution thereof being deemed conclusive approval of any such changes. The
Chairman of the Board is hereby authorized and directed to execute and deliver the Documents,
for and on behalf of the Authority. The Executive Director /Secretary of the Board is hereby
authorized and directed to affix the seal of the Authority to, and to attest those Documents
requiring the attestation of the Secretary.
Section 3. The officers of the Authority shall take all action which they deem
necessary or reasonably required in conformity with the Act to enter into the Documents and
refund the Prior Bonds, including the paying of incidental expenses, which are hereby authorized
2
to be paid, and for carrying out, giving effect to and consummating the transactions contemplated
by this Resolution and the Documents, including, without limitation, the execution and delivery
of any necessary or appropriate closing documents to be delivered in connection with the
execution and delivery of the Documents and the refunding of the Prior Bonds.
Section 4. Pursuant to Section 11 -57 -205, C.R.S., the Board hereby delegates
to the Executive Director of the Authority the authority to make the following determinations
with respect to the Loan, including the execution of any certificates necessary or desirable to
evidence such determinations, which determinations shall be subject to the restrictions and
parameters set forth below: (a) the rate or rates of interest on the Loan; (b) the conditions on
which and the prices at which the Loan may be redeemed before maturity; (c) the existence and
amount of any reserve funds; (d) the principal amount of the Loan; (e) the amount of principal
maturing in any particular year; and (f) the dates on which principal and interest shall be paid.
The foregoing authority shall be subject to the following restrictions and parameters: (1) the
Loan shall mature not later than twenty years from the date of issuance; (2) the principal amount
of the Loan shall not exceed $7,200,000 (3) the initial interest rate on the Loan shall be 4.25% to
be adjusted annually on June 1, 2010; (4) the interest rate shall be reset on June 1 of each year
commencing June 1, 2010, at a rate not to exceed 2% over the one year LIBOR swap rate on the
reset date; and (5) the Loan is subject to prepayment in whole or in part on any interest payment
date commencing June 1, 2010 and semi - annually thereafter at a price equal to the principal
amount so prepaid plus accrued interest thereon.
Section 5. The Loan and the Note are special obligations of the Authority
payable solely as provided in the Loan Agreement. The principal of, premium, if any, and
interest on the Loan and the Note shall not constitute an indebtedness of the Town or the State of
Colorado or any political subdivision thereof, and neither the Town, the State of Colorado nor
any political subdivision thereof shall be liable thereon, nor in any event shall the principal of,
premium, if any, and interest on the Loan and the Note, be payable out of funds or properties
other than the Pledged Revenue, as such term is defined in the Loan Agreement. Neither the
Commissioners of the Authority nor any persons executing the Loan Agreement or the Note shall
be liable personally on the Loan Agreement or the Note.
Section 6. After the Loan Agreement and the Note are entered into, this
Resolution shall be and remain irrepealable, and may not be amended except in accordance with
the Loan Agreement, until the Loan and the Note shall have been fully paid, canceled and
discharged in accordance therewith.
Section 7. The Prior Bonds shall be paid and cancelled on the date of funding
of the Loan, at a price equal to the par amount thereof plus accrued interest.
Section S. If, for any reason, the funds on hand from the Loan shall be
insufficient to make the payment of the principal of and accrued interest on the Prior Bonds, as
the same shall be due and payable as provided. in Section 7 above, the Authority shall forthwith
deposit additional legally available funds as may be required fully to meet the amount due and
payable on the Prior Bonds.
3
Section 9. The officers of the Authority are hereby authorized and directed to
take all actions necessary or appropriate to effectuate the provisions of this Resolution, including
but not limited to the execution of such certificates and affidavits as may be reasonably required
by Vectra.
Section 10. The Chairman and the Executive Director are each hereby
appointed as an Authorized Person, as defined in the Loan Agreement. Different or additional
Authorized Persons may be appointed by resolution adopted by the Board and a certificate filed
with Vectra.
Section 11. All costs and expenses incurred in connection with the Loan and
the transactions contemplated by this Resolution shall be paid either from the proceeds of the
Loan or from legally available moneys of the Authority, or from a combination thereof, and such
moneys are hereby appropriated for that purpose.
Section 12. 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 13. All bylaws, orders and resolutions, or parts thereof, inconsistent
herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be
construed as reviving any bylaw, order or resolution or part thereof.
Section 14. This Resolution shall be in full force and effect immediately upon
its passage and approval.
PASSED, ADOPTED AND APPROVED this May 26, 2009.
(SEAL)f • ��p '
do �. ,•'n Chairman of the Board of Commissio ers
Attest:
r
APPROVED AS TO LEGAL FORM:
Att ey fethe Authority
STATE OF COLORADO }
} SS.
AVON URBAN RENEWAL )
AUTHORITY )
I, Larry Brooks, the Executive Director /Secretary of the Avon Urban Renewal
Authority (the "Authority "), do hereby certify that:
1. The foregoing pages are a true and correct copy of a resolution (the
"Resolution") passed and adopted by the Board of Commissioners of the Authority (the "Board ")
at a regular meeting held on May 26, 2009,
2. The Resolution was duly moved and seconded and the Resolution was
adopted at the meeting of May 26, 2009, by an affirmative vote of a majority of the members of
the Board as follows:
Name
"Yes"
"No"
Absent
Ronald C. Wolfe
Brian Sipes
V
Richard Carroll
David Dantas
Kristi Ferraro
Amy Phillips
Buz Reynolds
3. The members of the Board were present at such meetings and voted on the
passage of such Resolution as set forth above.
4. The Resolution was approved and authenticated by the signature of the
Chair or Vice Chairman of the Board, sealed with the Authority seal, attested by the Secretary of
the Board and recorded in the minutes of the Board.
5. There are no bylaws, rules or regulations of the Board which might
prohibit the adoption of said Resolution.
6. Notice of the meeting of May 26, 2009, in the form attached hereto as
Exhibit A' was posted in at the Avon Town Hall, Avon Municipal Complex, One Lake Street, in
the Town of Avon, not less than twenty -four hours prior to the meeting in accordance with law.
I
(SEAL)
WITNESS my hand and the seal of said Authority affixed May 26, 2009.
EXHIBIT A
(Form of Notice of Meeting)
A -1
TOWN OF AvON, COLORADO
AVON WORK SESSION FOR TUESDAY, MAY 26, 2009 A N O O
MEETING BEGINS AT 2:45 PM
AVON TOWN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
MAYOR RON WOLFE
MAYOR PRO Tenn BRIAN SIPES
COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK. PATTY MCKENNY
ALL WORK SESSION MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME; PLEASE TELL THE MAYOR YOU WOULD LIKE TO SPEAK UNDER No. 2 BELOW
ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE
PLEASE VIEW AVON'S WEBSITE, HTTP:IIWWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
2:45 PM -- 3:15 PM 1. EXECUTIVE SESSION pursuant to C.R.S. §24- 6- 402(4)(b), for the purpose of
receiving legal advice from the Town Attorney on specific legal questions
concerning Water Rights and Case Number 09CW28 and pursuant to C.R.S.
§24- 6- 402(4)(b) for the purpose of receiving legal advice on specific legal
matters related the agreement and contracts for the Avon Community Heat
Recover Project, and pursuant to C.R.S. §24- 6- 402(4)(e) for the purpose of
determining negotiating positions, developing strategies and instructing
negotiators with regard to the Avon Community Heat Recovery Project
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
3:15 PM — 3:45 PM 3. COUNCIL COMMITTEE AND STAFF UPDATES
a. Open Space Advisory Committee Update (Ron Wolfe, Mayor)
b. Housing Committee Update (Ron Wolfe, Mayor) Review materials outlined by
Economic Council of Eagle County
c. ECO Update (Ron Wolfe, Mayor)
d. Village at Avon Subcommittee Update (Rich Carroll, Councilor)
e. Financial Matters (Finance Department) Memo only
3:451211111-4:161211111 4. 2009 CAPITAL IMPROVEMENT PROJECTS UPDATE (Justin Hildreth, Town Engineer)
Update on the Town of Avon Capital Improvements Projects for 2009
4:15 PM -4:45 PM S. 2009 EAGLE COUNTY PROPERTY VALUE APPRAISALS (Mark Chapin, Eagle
County Assessor, Scott Wright, Assistant Town Manager Finance) Review Eagle
County Assessor's Report for 2009; Review Avon's property tax implications as
related to the new assessment
4:45 PM 6. ADJOURNMENT
Avon Council Meeting.09.05.26
Page 1 of 5
TOWN OF AVON, COLORADO
AVON URBAN RENEWAL AUTHORITY MEETING FOR TUESDAY, MAY 26, 2009 AVON
MEETING BEGINS AT 4:45 PM
AVON TOWN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
CHAIRMAN RON WOLFE
VICE CHAIRMAN BRIAN SIPES
COMMISSIONERS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO,
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
STAFF
EXECUTIVE DIRECTOR I SECRETARY: LARRY BROOKS
TREASURER: SCOTT WRIGHT
AUTHORITY CLERK: PATTY MCKENNY
ALL URBAN RENEWAL MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON'S WEBSITE, HTTP:IIWWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
1. ROLL CALL
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
3. RESOLUTIONS ADDRESSING REFINANCE
a. Resolution No. 09 -02, Series of 2009, Resolution Of The Board Of Commissioners Of The Avon
Urban Renewal Authority Authorizing, Approving And Directing The Execution And Delivery Of
A Loan Agreement For A Loan In The Original Principal Amount Of Not To Exceed $7,200,000,
And Certain Other Documents In Connection Therewith, For The Purpose Of Refinancing The
Acquisition, Construction And Equipping Of An Urban Renewal Project (Scott Wright, Treasurer)
Loan agreement with Vectra Bank which will redeem the remaining Series 2008 bank bonds held by
Depfa Bank
b. Resolution No. 09 -03, Series of 2009, Resolution to Amend the 2009 Avon Urban Renewal
Authority Budget, (Scott Wright, Treasurer) A Resolution summarizing Expenditures and Revenues by
Fund and Amending the 2009 Budget for the Urban Renewal Authority for the Calendar Year beginning
on the First day of January, 2009 and ending on the Last day of December 2009
4. CONSENT AGENDA
a. Minutes from April 28, 2009
5. ADJOURNMENT AT 5 PM
Avon Council Meeting.09.05.26
Page 2 of 5
TOWN OF AVON, COLORADO
AVON LIQUOR LICENSING AUTHORITY MEETING FOR TUESDAY, MAY 26, 2009 MON
MEETING BEGINS AT 5 PM
AvoN TowN HALL, ONE LAKE STREET
PRESIDING OFFICIALS
CHAIRMAN RON WOLFE
VICE CHAIRMAN BRIAN SIPES
BOARD MEMBERS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY
ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS
PLEASE VIEW AVON'S WESSITE, HTTP: /IWWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
1. CALL TO ORDER ! ROLL CALL
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
i
3. PUBLIC HEARING FOR
a. Applicant Name:
Event Name:
Event Date:
Event Manager:
Event Location:
SPECIAL EVENTS PERMITS
Beaver Creek Resort Company
2009 Beaver Creek Rodeo Series
June 1 B, 25, July 2, 9, 16, 23 August 6, 13, 20, 2009; 10 am — 10 pm
Mike Moser
Traer Creek Lot 1
b. Applicant Name: Avon Business Association
Event Name: Salute to U.S.A
Event Date: July 3, 2009; 4 pm —11 pm
Event Manager: Char Quinn
Event Location: Harry A. Nottingham Park
4. RENEWAL OF LIQUOR LICENSES
a. Applicant: Benchmark Liquors, Inc, d /b /a Beaver Liquors
Address: 110 E. Beaver Creek Blvd.
Manager: David Courtney
Type of License: Retail Liquor License
5. OTHER BUSINESS
6. CONSENT AGENDA
a. Minutes from April 26, 2009
7. ADJOURNMENT AT 5:20 PM
Avon Council Meeting.09.05.26
Page 3of5
TOWN OF AVON, COLORADO UN REGULAR COUNCIL MEETING FOR TUESDAY, MAY 26, 2009 AV N
MEETING BEGINS AT 5:30 PM "
AvON Town HALL, ONE LAKE STREET
PRESIDING OFFICIALS
MAYOR RON WOLFE
MAYOR PRO TEM BRIAN Sipes
COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO
AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR.
TOWN STAFF
TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY
ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS
COMMENTS FROM THE PUBLIC ARE WELCOME DURING CITIZEN AND COMMUNITY INPUT AND PUBLIC HEARINGS
PLEASE VIEW AVON's WEBSITE, HTTP:IIWWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS
AGENDAS ARE POSTED AT AVON MUNICIPAL BUILDING AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY
THE AVON TowN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH
1. CALL TO ORDER AND ROLL CALL
2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA
3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST
4. COMMUNITY INPUT
5. CONSENT AGENDA
a. Minutes from May 12, 2009
6. RESOLUTIONS
a. Resolution No. 09 -18, Series of 2009, Resolution to Amend the 2009 Town of Avon Budget
,(Scott Wright, Assistant Town Manager Finance) Resolution addressing budget amendments pertaining
to revisions to general fund revenues and expenditures, as well as other various fund changes
b. (Resolution No. 09 -19, Series of 2009, A Resolution Concerning The Avon Urban Renewal
Authority And Its Loan Agreement With Vectra Bank Colorado; Authorizing And Directing
Actions By The Town Manager With Respect To The Preparation Of Requests To The Town
(Council For Appropriation Of Funds For The Replenishment Of Certain Funds Pertaining
(Thereto; Authorizing The 2009 Cooperation Agreement; And Other Actions Taken By The Town
In Connection Therewith (Scott Wright, Assistant Town Manager Finance) Resolution that addresses
,the Town's non - binding intent to replenish the bond reserve fund if the Authority ever needs to use the
Ireserve fund to pay for the bonds
7. RECOMMENDATIONS OF PLANNING & ZONING COMMISSION
PUBLIC HEARING ON RED HOUSING ANNEXATION PROJECT:
a. Public Hearing on Ordinance No. 09 -06, Series of 2009, Second Reading, Ordinance Annexing
'the Red House Property (Eric Heidemann, Assistant Town Manager, Matt Gennett, Planning Manager)
iThe applicant and property owner, the Vail Corporation, represented by Rick Pylman of Pylman and
(Associates, is proposing an annexation of approximately 1.131 acres of land known as the "Red House"
(site, located on the northeast corner of Avon Road and Highway 6 (Staff requests continuing until
June 9, 2009
b. Public Hearing on Ordinance No. 09 -07, Series of 2009, Second Reading, Ordinance
Approving The Planned Unit Development (PUD) Application, The Preliminary Plan for
Subdivision, and Annexation and Development Agreement for the "Red House Lots 1 and 2
(Eric Heidemann, Assistant Town Manager, Matt Gennett, Planning Manager) The applicant and property
owner, the Vail Corporation, represented by Rick Pylman of Pylman and Associates, is proposing a new
Planned Unit Development (PUD) and Preliminary Plan for Subdivision, for a development site currently
Avon Council Meeting.09.05.26
Page 4 of 5
TOWN OF AVON, COLORADO
REGULAR COUNCIL MEETING FOR TUESDAY, MAY 26, 2009 AVON
MEETING BEGINS AT 5:30 PM "
AVON TOWN HALL, ONE LAKE STREET
located in unincorporated Eagle County zoned Commercial Limited (CL) under the County's zoning
regulations. The proposal calls for fifteen (15) townhomes with associated private and public amenities
on a development site comprised of 1.131 acres. This application is being consider concurrent with an
annexation petition for the "Red House" site into the Town of Avon / Property Location: Lots 1 -2, Red
House Exemption Plat 138361 Highway 6 / Applicant: Rick Pylman, Pylman and Associates / Owner: Vail
Corporation (Staff requests continuing until June 9, 2009)
c. Public Hearing on Ordinance No. 09 -08, Series of 2009, Second Reading, Ordinance
Approving The Planned Unit Development (PUD) Application For The Buck Creek PUD, Lots 1,
2, 3, & 4, Wildwood Resort, Town Of Avon, Eagle County, Colorado , And Setting Forth Details
In Regard Thereto (Eric Heidemann, Assistant Town Manager) Proposal to allow for new land uses,
including but not limited to: fire station hub with separate administration building, 42 single - family, duplex,
or triplex units, a Montessori school with office space, and natural science school campus with employee
housing (Applicants request tabling until June 23, 2009)
8. ORDINANCES
a. Ordinance No. 09 -10, Series of 2009, First Reading, Ordinance Adopting Regulations for
Booting Vehicles on Private Property through the Amendment of Chapter 5.12 of the Avon
Municipal Code, Vehicle Impoundment (Brian Kozak, Police Chief) Proposed legislation to address
booting in private property locations
9. NEW BUSINESS
a. Stone Creek Elementary School Lease Discussion (Russell Molina, School Board President)
Request for a change and extension of the school's lease
b. Discuss Water Case No. 09CW28 (Larry Brooks, Town Manager, Justin Hildreth, Town Engineer)
Discuss the case and its implications to the Town (No Memo)
10. UNFINISHED BUSINESS
a. Heat Recovery Project Update (Rich Carroll, Councilor, Brian Sipes, Mayor Pro Tem) Update
regarding recent meeting with ERWSD staff to continue with discussions about the IGA (No Memo)
11. OTHER BUSINESS
12. TOWN MANAGER REPORT
13. TOWN ATTORNEY REPORT
14. MAYOR REPORT
15. PROPOSED FUTURE AGENDA DATES & Topics:
June 9`h: Audit Acceptance, Review Transit Survey Results, Recreation Center Day Care Proposal,
Recreation Center Maintenance Update, Three Mile Plan & IGA with Eagle County
16. ADJOURNMENT
Avon Council Meeting-09.05.26
Page 5 of 6
Memo
To: Board Chairman and Commissioners
Thru: Larry Brooks, Executive Director
From: Scott Wright, Treasurer
Date: May 21, 2009
Re: Vectra Bank Loan Resolution No. 09 -02
summary:
The Authority Board has only one action item related to the loan agreement with Vectra Bank
the proceeds for which will redeem the remaining Series 2008 bank bonds held by Depfa
Bank.
The Board will consider a resolution entering into a loan agreement with Vectra Bank to
obtain a loan of $7,200,000 in order to finance the costs of refunding $8,800,000 of Series -�-
2008 Tax Increment Adjustable Rate Revenue Bonds along with the remaining funds held in
trust for this issue.
The Bond Resolution also authorizes the execution and delivery of various other
documents, which are approved "as to form" by approval of the resolution. Those
documents include: (a) the proposed form of the Loan Agreement, (b) the proposed form
of the promissory note, and (c) the Cooperation Agreement between the Authority and
the Town.
I have also included, for reference purposes only, the Sources and Uses of Funds that sets
forth a summary of the financial transaction to take place at closing, which is set for May
28''. Dee Wisor and David Bell, will be present to explain the loan proceedings and to
answer any questions you may have.
Financial Implications:
A budget amendment has been prepared and is included on the Authority Board agenda for
adoption. The amendment reflects changes to the budget regarding the redemption of the
Series 2008 Bonds of $25 million, the issuance of a loan in the amount of $7.2 million, and the
Page 1
RESOLUTION NO. 09 -02
SERIES OF 2009
RESOLUTION OF THE BOARD OF COMMISSIONERS OF
THE AVON URBAN RENEWAL AUTHORITY
AUTHORIZING, APPROVING AND DIRECTING THE
EXECUTION AND DELIVERY OF A LOAN AGREEMENT
FOR A LOAN IN THE ORIGINAL PRINCIPAL AMOUNT OF
NOT TO EXCEED $7,200,000, AND CERTAIN OTHER
DOCUMENTS IN CONNECTION THEREWITH, FOR THE
PURPOSE OF REFINANCING THE ACQUISITION,
CONSTRUCTION AND EQUIPPING OF AN URBAN
RENEWAL PROJECT
WHEREAS, the Avon Urban Renewal Authority (the "Authority ") is a public
body corporate and politic, and has been duly created, organized, established and authorized by
the Town of Avon, Colorado (the "Town ") to transact business and exercise its powers as an
urban renewal authority, all under and pursuant to the Colorado Urban Renewal Law,
constituting Part 1 of Article 25 of Title 31, Colorado Revised Statutes, as amended (the "Act ");
and
WHEREAS, pursuant to Section 31 -25 -105 of the Act, the Authority has the
power to borrow money and to apply for and accept advances, loans, grants and contributions
from any source for any of the purposes of the Act and to give such security as may be required;
and
WHEREAS, pursuant to Section 31 -25 -109 of the Act, the Authority has the
power to issue refunding or other bonds (defined by the Act to mean any bonds, notes, interim
certificates or receipts, temporary bonds, certificates of indebtedness, debentures or other
obligations) from time to time in its discretion for the payment, retirement, renewal or extension
of any bonds previously issued by it under the Act; and
WHEREAS, the Authority is authorized to issue bonds without an election; and
WHEREAS, the Authority has previously issued its Avon Urban Renewal
Authority, Tax Increment Adjustable Rate Revenue Bonds (Town Center West Area Urban
Renewal Project) Series 2008 (the "Series 2008 Bonds ") in the aggregate principal amount of
$25,000,000 (the "Prior Bonds "); and
WHEREAS, an urban renewal plan, known as the "Town Center West Area
Urban Renewal Plan" (the "Urban Renewal Plan"), was duly and regularly approved by the
Town Council of the Town for an urban renewal project under the Act; and
WHEREAS, all applicable requirements of the Act and other provisions of law
for and precedent to the adoption and approval by the Town of the Urban Renewal Plan have
been duly complied with; and
Section 3. The officers of the Authority shall take all action which they deem
necessary or reasonably required in conformity with the Act to enter into the Documents and
refund the Prior Bonds, including the paying of incidental expenses, which are hereby authorized
to be paid, and for carrying out, giving effect to and consummating the transactions contemplated
by this Resolution and the Documents, including, without limitation, the execution and delivery
of any necessary or appropriate closing documents to be delivered in connection with the
execution and delivery of the Documents and the refunding of the Prior Bonds.
Section 4. Pursuant to Section 11 -57 -205, C.R.S., the Board hereby delegates
to the Executive Director of the Authority the authority to make the following determinations
with respect to the Loan, including the execution of any certificates necessary or desirable to
evidence such determinations, which determinations shall be subject to the restrictions and
parameters set forth below: (a) the rate or rates of interest on the Loan; (b) the conditions on
which and the prices at which the Loan may be redeemed before maturity; (c) the existence and
amount of any reserve funds; (d) the principal amount of the Loan; (e) the amount of principal
maturing in any particular year; and (f) the dates on which principal and interest shall be paid.
The foregoing authority shall be subject to the following restrictions and parameters: (1) the
Jaar Loan shall mature not later than twenty years from the date of issuance; (2) the principal amount
oan shall not exceed $7,200,000 (3) the initial interest rate on the Loan shall not exceed
o be adjusted annually on June 1, 2010; (4) the interest rate shall be reset on June 1 of
commencing June 1, 2010, at a rate not to exceed 2% over the one year LIBOR swap
rate on the reset date; and (5) the Loan is subject to prepayment in whole or in part on any
interest payment date commencing June 1, 2010 and semi - annually thereafter at a price equal to
�i the principal amount so prepaid plus accrued interest thereon.
Section 5. The Loan and the Note are special obligations of the Authority
payable solely as provided in the Loan Agreement. The principal of, premium, if any, and
interest on the Loan and the Note shall not constitute an indebtedness of the Town or the State of
Colorado or any political subdivision thereof, and neither the Town, the State of Colorado nor
any political subdivision thereof shall be liable thereon, nor in any event shall the principal of,
premium, if any, and interest on the Loan and the Note, be payable out of funds or properties
other than the Pledged Revenue, as such term is defined in the Loan Agreement. Neither the
Commissioners of the Authority nor any persons executing the Loan Agreement or the Note shall
be liable personally on the Loan Agreement or the Note.
Section 6. After the Loan Agreement and the Note are entered into, this
Resolution shall be and remain irrepealable, and may not be amended except in accordance with
the Loan Agreement, until the Loan and the Note shall have been fully paid, canceled and
discharged in accordance therewith.
Section 7. The Prior Bonds shall be paid and cancelled on the date of funding
of the Loan, at a price equal to the par amount thereof plus accrued interest.
Section 8. If, for any reason, the funds on hand from the Loan shall be
insufficient to make the payment of the principal of and accrued interest on the Prior Bonds, as
the same shall be due and payable as provided in Section 7 above, the Authority shall forthwith
3
S
APPROVED AS TO LEGAL FORM:
Attorney for the Authority
7
(SEAL)
WITNESS my hand and the seal of said Authority affixed May 26, 2009.
Executive Director /Secretary
91
Kutak Rock LLP Draft of 05121109
LOAN AGREEMENT
by and between
AVON URBAN RENEWAL AUTHORITY
as Borrower
�J
VECTRA BANK COLORADO, NATIONAL ASSOCIATION
as Lender
regarding
$7,200,000
Avon Urban Renewal Authority
Tax Increment Adjustable Rate Revenue Refunding Loan
(Town Center West Area Urban Renewal Project)
Series 2009
Dated as of May 28, 2009
4827 - 0054 - 1187.3
11
>. Section 5.15. Annual Audit and Budget ............................................... ............................... 21
Section 5.16. No Exclusion of Property ................................................ ............................... 21
Section 5.17. Amendments to Financing Documents Require Prior Lender Consent......... 21
Section 5.18. Enforcement of Cooperation Agreement ........................ ............................... 21
Section 5.19. Proper Allocation of New Construction ......................... ............................... 21
ARTICLE VI
RESERVED.................................................................................................. ............................... 21
ARTICLE VII
DEPOSITS; INVESTMENTS
Section 7.01. Investment of Funds ........................................................ ............................... 21
Section 7.02. Compliance with Tax Covenants .................................... ............................... 21
ARTICLE VIII
EVENTS OF DEFAULT AND REMEDIES
Section8.01.
Events of Default ............................................................ ...............................
22
Section 8.02.
Remedies on Occurrence of Event of Default ................ ...............................
23
Section 8.03.
Notice to Lender of Default ............................................ ...............................
24
Section 8.04.
Termination of Disbursements; Additional Lender Rights ............................
24
Section 8.05.
Delay or Omission No Waiver ........................................ ...............................
24
Section 8.06.
No Waiver of One Default to Affect Another; All Remedies
26
Section 9.07.
Cumulative...................................................................... ...............................
24
Section8.07.
Other Remedies ............................................................... ...............................
25
Section 9.09.
ARTICLE IX
27
Section9.10.
MISCELLANEOUS
27
Section 9.01.
Loan Agreement and Relationship to Other Documents ...............................
25
Section 9.02.
Successors; Assignment .................................................. ...............................
25
Section 9.03.
Indemnification ............................................................... ...............................
25
Section 9.04.
Notice of Claims against Lender; Limitation of Certain Damages ................
25
Section9.05.
Notices ............................................................................ ...............................
26
Section9.06.
Payments ......................................................................... ...............................
26
Section 9.07.
Applicable Law and Jurisdiction; Interpretation; Severability ......................
26
Section 9.08.
Copies; Entire Agreement; Modification ........................ ...............................
27
Section 9.09.
Waiver of Jury Trial ........................................................ ...............................
27
Section9.10.
Attachments .................................................................... ...............................
27
Section 9.11.
No Recourse Against Officers and Agents ..................... ...............................
27
Section 9.12.
Conclusive Recital .......................................................... ...............................
28
Section 9.13.
Limitation of Actions ...................................................... ...............................
28
Section 9.14.
Pledge of Revenues ......................................................... ...............................
28
Section 9.15.
Payment on Non - Business Days ..................................... ...............................
28
Section9.16.
Termination ..................................................................... ...............................
28
4827 - 0054- 1187.3 ii
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement') is made and entered into as of May
28, 2009 by and between the AVON URBAN RENEWAL AUTHORITY (the "Borrower "), a
public body corporate and politic duly existing under the laws of the State of Colorado, and
VECTRA BANK COLORADO, NATIONAL ASSOCIATION, a national banking
association, in its capacity as lender (the "Lender ").
RECITALS
WHEREAS, the Borrower is a public body corporate and politic and has been duly
created, organized, established and authorized by the Town of Avon, Colorado (the "Town ") to
transact business and exercise its powers as an urban renewal authority, all under and pursuant to
the Colorado Urban Renewal Law, constituting part 1 of article 25 of title 31, Colorado Revised
Statutes (the "Act ") (all capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned in Article I hereof); and
WHEREAS, pursuant to the Act, the Borrower has the power and authority to borrow
money and to apply for and accept loans to accomplish the purposes set forth in the Act, and to
give such security as may be required; and
WHEREAS, an urban renewal plan, known as the "Town Center West Area Urban
Renewal Plan" was duly adopted by the Town Council of the Town pursuant to Resolution No.
07 -27, Series of 2007, on August 14, 2007 (the "Urban Renewal Plan") for the purpose of
approving the Town Center West Area Urban Renewal Project (the "Urban Renewal Project'),
such project being an urban renewal project under the Act; and
WHEREAS, all applicable requirements of the Act and other provisions of law for and
precedent to the adoption and approval by the Town of the Urban Renewal Plan have been duly
complied with; and
WHEREAS, the Borrower has previously issued, for the purpose of paying a portion of
the costs of the Urban Renewal Project, its Tax Increment Adjustable Rate Revenue Bonds
(Town Center West Area Urban Renewal Project) Series 2008, issued in the aggregate principal
amount of $25,000,000 and presently outstanding in the aggregate principal amount of
,_$8,800,000 (the "Refunded Bonds "), pursuant to an Indenture of Trust dated as of February 15,
008, between the Borrower and UMB Bank, n.a., as trustee (the "Refunded Bonds Indenture ");
and
WHEREAS, pursuant to a Reimbursement Agreement dated as of February 15, 2008 (the
"Reimbursement Agreement") between DEPFA BANK PLC, acting through its New York
Branch (the "Bank ") and the Borrower, the Bank issued its irrevocable direct pay letter of credit
to secure payment of the Refunded Bonds; and
WHEREAS, pursuant to the Refunded Bonds Indenture and the Reimbursement
Agreement, the Refunded Bonds are presently held by the Bank as Bank Bonds bearing interest
4827 - 0054 - 1187.3
)
"Board" means the Board of Commissioners of the Borrower.
"Bond Year" means the 12 months commencing on the first day of June of any calendar
year and ending on the last day of May of the immediately succeeding calendar year.
"Borrower" means Avon Urban Renewal Authority, a public body corporate and politic
duly organized and existing as an urban renewal authority under the laws of the State of
Colorado.
"Business Day" means any day other than a Saturday, a Sunday, or any holiday on which
the Lender is closed for business.
"Cooperation Agreement" means the 2009 Cooperation Agreement (Vectra Bank
Financing) Between the Town of Avon and the Avon Urban Renewal Authority dated as of May
28, 2009.
"Closing" means the concurrent execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto and the issuance and
disbursement of the Loan and application of the proceeds thereof in accordance with Section
2.03 hereof.
"Closing Date" means the date on which the Closing occurs, estimated to be on or about
May 28, 2009.
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and
regulations promulgated thereunder.
"County " means Eagle County, Colorado.
"County Assessor" means the assessor of Eagle County, Colorado.
"C.R.S." means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
"Debt" means, without duplication, all of the following obligations of the Borrower
(other than the obligations represented by this Agreement and the Note) payable from all or any
portion of the Pledged Revenue: (a) borrowed money of any kind; (b) obligations evidenced by
bonds, debentures, notes or similar instruments; (c) obligations upon which interest charges are
customarily paid; (d) obligations under conditional sale or other title retention agreements
relating to property or assets purchased by the Borrower; (e) obligations issued or assumed as the
deferred purchase price of property or services; (f) obligations subject to annual appropriation of
amounts sufficient to pay such obligations; (g) obligations in connection with indebtedness of
others secured by (or which the holder of such indebtedness has an existing right, contingent or
otherwise, to be secured by) any lien or other encumbrance on property owned or acquired by the
Borrower, whether or not the obligations secured thereby have been assumed (only to the extent
of the fair market value of such asset if such indebtedness has not been assumed by the
Borrower); (h) obligations arising from guarantees made by the Borrower; (i) obligations
evidenced by capital leases; 0) obligations as an account party in respect of letters of credit and
4827 - 0054 - 1187.3
17
"Lender" means Vectra Bank Colorado, National Association, a national banking
association, in its capacity as lender of the Loan.
"LIBOR" means the London InterBank Offered Rate.
"Loan" means the loan made by the Lender to the Borrower in the original principal
amount of $7,200,000 as evidenced by the Note and made in accordance with the terms and
provisions of this Agreement.
"Loan Amount" means Seven Million Two Hundred Thousand and 00 /100 U.S. Dollars
($7,200,000).
"Loan Payment Fund" means the fund by that name established by the provisions of
Section 4.01 hereof to be administered by the Lender in the manner and for the purposes set forth
in Section 4.03 hereof.
"Maturity Date" means May 28, 2029.
"Net Pledged Revenue" means the moneys described in clauses (a), (b), and (d) of the
definition of Pledged Revenue set forth in this Article I.
"Note" means the Promissory Note evidencing the Loan issued in the original principal
amount of $7,200,000 from the Borrower, as maker, to the Lender, as payee, and dated as of
May 29, 2009.
"Origination Fee" means a one -time payment from the Borrower to the Lender equal to
one percent (1.00 %) of the Loan Amount due on or before the Closing Date.
"Parity Debt" means any Debt of the Borrower having a lien upon all or any portion of
the Pledged Revenue on parity with the lien thereon of the Loan.
"Payment Date" means a Principal Payment Date and /or an Interest Payment Date, as the
context requires.
"Permitted Investments" means (a) certificates of deposit in the Lender which have (i) a
fixed interest rate, a fixed payment schedule, and a substantial penalty for early withdrawal, (ii) a
yield which is not less than the yield on reasonably comparable direct obligations of the United
States, and (iii) a yield which is not less than the highest yield that is published or posted by the
issuer of the certificate to be currently available from such issuer on reasonably comparable
certificates of deposit offered to the public to comparable governmental entities and subject to
the Public Deposit Protection Act; (b) any money market account offered by the Lender which
bears interest at the published money market rate of the Lender, as applicable, and has a yield
which is at least 100 basis points less than the yield on the Loan (as set forth in the Tax
Certificate); and (c) any investment or deposit offered by the Lender which (i) is a permitted
investment for governmental entities under then - applicable Colorado law, and (ii) in the opinion
of nationally recognized bond counsel delivered to the Borrower and the Lender will not cause
the Borrower to violate the covenant in Section 5.05 hereof. If, after making a good faith effort
to do so, the Borrower determines that it is not possible to invest in the investments described in
4827 - 0054- 1187.3 5
19
"Principal Payment Date" or "Principal Payment Dates" means December 1 of each
year, commencing December 1, 2009 and continuing through December 1, 2028, and the
Maturity Date.
"Property Tax Base Amount" means the amount certified by the County Assessor as the
valuation for assessment of all taxable property within the Urban Renewal Project Area last
certified by the County Assessor prior to the adoption of the Urban Renewal Plan; provided,
however, that in the event of a general reassessment of taxable property in the Urban Renewal
Project Area, the valuation for assessment of taxable property within the Urban Renewal Project
Area shall be proportionately adjusted in accordance with such general reassessment in the
manner required by the Act. The Property Tax Base Amount for calendar year 2008 was
$53,235,090.
"Public Deposit Protection Act" means Article 10.5 of Title 11, Colorado Revised
Statutes, as amended from time to time.
"Refunded Bonds" means the Borrower's Tax Increment Adjustable Rate Revenue Bonds
(Town Center West Area Urban Renewal Project), Series 2008, issued in the aggregate principal
amount of $25,000,000 and presently outstanding in the aggregate principal amount of
$8,800,000.
"Refunded Bonds Indenture " means the Indenture of Trust dated as of February 15,
2008, between the Borrower and UMB Bank, n.a., as trustee, authorizing the issuance of the
-- Refunded Bonds and governing the provisions pursuant to which such bonds are payable.
"Replenishment Resolution" means the resolution adopted by the Town Council on May
26, 2009, expressing the Town Council's present intent to lend additional moneys to the
Borrower to maintain the Reserve Fund in an amount equal to the Reserve Requirement.
"Reserve Fund" means the fund by that name established by the provisions of Section
4.01 hereof to be administered by the Lender in the manner and for the purposes set forth in
Section 4.04 hereof.
"Reserve Requirement" means (a) for the period commencing on the Closing Date to (but
not including) the Initial Interest Reset Date, an amount equal to $[552,525] and (b) for each
Annual Period thereafter, an amount equal to the greater of (i) $[552,525] or (ii) the Senior
Maximum Annual Debt Service.
"Revenue Fund" means the fund by that name established by the provisions of Section
4.01 hereof to be administered by the Lender in the manner and for the purposes set forth herein.
"Senior Maximum Annual Debt Service " means, for any Annual Period for which it is
computed, the sum of the aggregate maximum scheduled payments of principal and interest due
on the Loan in each calendar year up to and including the calendar year in which the Maturity
Date occurs, computed at the interest rate then in effect for the pertinent Annual Period as if such
interest rate were in effect through and including the Maturity Date.
4827 - 0054 - 1187.3 7
21
above until such time as the Lender has received confirmation that the Refunded Bonds have
been paid in full and cancelled.
On the Closing Date, the Borrower shall also cause to be paid to the Lender, from the
prior funds and accounts relating to the Refunded Bonds, the amount of $ 2 $23 0 33 •W, to be
credited to the payment of the purchase price of the Refunded Bonds.
Section 2.04. Interest Rate; Default Rate; Interest Payments; Principal Payments.
(a) Interest Rate.
(i) Defined Terms. For purposes of this Section 2.04(a) (and to the
extent applicable elsewhere in this Agreement), the following capitalized terms
shall have the respective meanings assigned below:
"Interest Period" means, initially, the period commencing on the Closing
Date through and including May 31, 2010, and thereafter means the period from
June 1 of each year (commencing on June 1, 2010) through and including May 31
of the next succeeding year.
"Interest Reset Date" means June. 1 of each year, commencing on June 1,
2010, being the first day of each Interest Period.
(ii) Initial Rate of Interest. Subject to Section 2.04(b) below, for the
period commencing on the Closing Date through and including May 31, 2010, the
outstanding principal of the Loan shall bear interest at a rate of 4.25% per annum.
(iii) Index; Margin; Rate of Interest. Subject to Section 2.04(b) below,
commencing on June 1, 2010 and thereafter, the outstanding principal of the Loan
shall bear interest at a variable rate per annum equal to the sum of the Index plus
two percent (2.00 %). Such interest rate shall be effective as of the Interest Reset
Date for the applicable Interest Period. The Lender's internal records of
applicable interest rates, calculated in accordance with the provisions hereof, shall
be determinative in the absence of manifest error. All interest due and payable
under this Agreement shall be calculated on the basis of a 360 -day year and actual
number of days elapsed.
(iv) Notice of New Interest Rate. ' The Lender shall provide the
Borrower with written notice of the rate of interest then in effect not later than
five (5) Business Days following each Interest Reset Date.
(b) Default Rate. If, following the occurrence of an Event of Default
hereunder, such default has not been cured to the satisfaction of the Lender within 30
days from the occurrence thereof, interest on the outstanding principal of the Loan shall
accrue (commencing on the 31St date after the occurrence of such Event of Default) at a
rate per annum equal to the sum of the Prime Rate plus four percent (4.00 %) (the
"Default Rate "), calculated on the basis of a 360 -day year and actual number of days
4827 - 0054- 1187.3
W
Z3
execution, delivery, administration, defense and enforcement of this Agreement or any of the
other Financing Documents, including reasonable attorneys' and all other consultants' fees and
all other costs and fees (a) incurred before or after commencement of litigation or at trial, on
appeal or in any other proceeding; (b) incurred in any bankruptcy proceeding and (c) related to
any waivers or amendments with respect thereto (examples of costs and fees include but are not
limited to fees and costs for enforcing the collection of ad valorem property taxes in the amounts
required pursuant to Section 5.11 hereof or confirming the priority of the Lender's claim on the
Pledged Revenue or the funds and accounts established hereunder). The Borrower will also
reimburse the Lender for all costs of collection of the Pledged Revenue, including all reasonable
attorneys' and all other consultants' fees, before and after judgment.
ARTICLE III
CONDITIONS TO CLOSING
Section 3.01. Conditions to Loan Closing. The funding by the Lender of the Loan
pursuant to Section 2.03 hereof is conditioned upon the satisfaction of each of the following:
(a) The Financing Documents. The Financing Documents shall have been
duly executed and delivered by each of the respective parties thereto and shall not have
been modified, amended or rescinded, shall be in full force and effect on and as of the
Closing Date and executed original or certified copies of each thereof have been
delivered to the Lender; provided, however, that with respect to the Note, the Lender
shall be in receipt of the executed original.
(b) Borrower Proceedings. The Lender shall have received a certified copy
of all resolutions and proceedings taken by the Borrower authorizing the execution,
delivery and performance of this Agreement, the Note, and the other Financing
Documents to which the Borrower is a party, and the transactions contemplated
hereunder and thereunder, together with such other certifications as to the specimen
signatures of the officers of the Borrower authorized to sign this Agreement, the Note,
and the other Financing Documents to be delivered by the Borrower hereunder and as to
other matters of fact as shall reasonably be requested by the Lender.
(c) Governmental Approvals. The Lender shall have received certified copies
of all governmental approvals, if any, necessary for the Borrower to execute, deliver and
perform its obligations under this Agreement and the other Financing Documents to
which the Borrower is a parry.
(d) Representations and Warranties True; No Default. The Lender shall be
satisfied that on the Closing Date each representation and warranty on the part of the
Borrower contained in this Agreement and any other Financing Document to which the
Borrower is a party are true and correct in all material respects and no Default or Event of
Default has occurred and is continuing, and the Lender shall be entitled to receive
certificates, signed by authorized officers of the Borrower, to such effect.
4827- 0054 - 1187.3
11
Z
f (j) No Change in Law. No law, regulation, ruling or other action of the
United States, the State of Colorado or any political subdivision or authority therein or
thereof shall be in effect or shall have occurred, the effect of which would be to prevent
the Borrower from fulfilling its obligations under this Agreement.
(k) Fees and Expenses. All Lender's counsel fees and any other fees and
expenses due and payable in connection with the issuance of the Loan, the execution and
delivery of this Agreement and the other Financing Documents, and any other amounts
due and payable hereunder shall have been paid by the Borrower.
(1) Borrower Financial Information. The Borrower shall have provided the
Lender with all pertinent financial information regarding the Borrower, including,
without limitation, copies of all documents describing and evidencing any and all Debt of
the Borrower.
(m) Borrower Due Diligence. The Lender and its counsel shall have been
provided with the opportunity to review all agreements, documents, and other material
information relating to the Borrower, the Pledged Revenue, the Refunded Bonds, and the
Borrower's ability to perform its obligations under this Agreement and the other
Financing Documents to which the Borrower is a party.
(n) Approval of Financing Documents. The Lender and its counsel shall
have had sufficient time to review the Financing Documents and the substantially final
versions of such documents shall be in form and content satisfactory to the Lender and its
counsel.
(o) Other Requirements. The Lender shall be in receipt of such other
certificates, approvals, filings, opinions and documents as shall be reasonably requested
by the Lender.
(p) Other Matters. All other legal matters pertaining to the execution and
delivery of this Agreement, the Note, and the other Financing Documents, and the
issuance of the Loan shall be reasonably satisfactory to the Lender and its counsel.
(q) Debt Outstanding. The Lender shall be in receipt of the evidence
satisfactory to the Lender, including, without limitation, certifications from the Borrower
to the effect that, except for the indebtedness evidenced by the Note and this Agreement,
as of the Closing Date the Borrower has no Debt outstanding, other than the obligations
under the Cooperation Agreement.
ARTICLE IV
FUNDS AND ACCOUNTS
Section 4.01. Creation of Funds and Accounts. The following funds are hereby
created and established, each of which shall be administered by the Lender in accordance with
the provisions hereof:
4827 - 0054- 1187.3
13
27
-T invoice provided by the Lender, then the Lender shall notify the Borrower in writing of
such shortfall indicating the amount of such deficiency. If, on or before such Payment
Date, the Borrower provides funds to the Lender to make up any or all of such deficiency,
then the Lender shall accept and deposit such funds into the Loan Payment Fund for the
payment of the Debt Requirements then due.
(d) Application of Moneys in Loan Payment Fund. Moneys in the Loan
Payment Fund (including amounts transferred thereto pursuant to provisions hereof) shall
be used by the Lender solely to pay the Debt Requirements in the following order of
priority. For purposes of the following, when payment of more than one purpose is
required at any single priority level, such credits shall rank pari passu with each other.
(i) First, to the payment of interest due in connection with the Loan
pursuant to the relevant invoice provided by the Lender; and
(ii) Second, to the payment of regularly scheduled principal on the
Loan when due.
(e) Investment Earnings. All interest income from moneys credited to the
Loan Payment Fund shall remain therein.
Section 4.04. Reserve Fund.
(a) General. The Reserve Fund shall be administered by the Lender in
accordance with the terms of this Agreement. Moneys in the Reserve Fund shall be used
by the Lender, if necessary, only for the purposes set forth in this Section 4.04 and the
Reserve Fund is hereby pledged for such purposes.
(b) Transfers to Loan Payment Fund. If, on any Payment Date, the amount
then on deposit in the Loan Payment Fund is an amount which is less than the Debt
Requirements owing on such Payment Date, the Lender shall transfer from the Reserve
Fund to the Loan Payment Fund an amount which, when combined with moneys then on
deposit in the Loan Payment Fund, will be sufficient to pay such Debt Requirements
when due on the applicable Payment Date. In the event that moneys in the Reserve Fund,
together with moneys then on deposit in the Loan Payment Fund are insufficient for such
purpose, the Lender is to nonetheless transfer all moneys in the Reserve Fund to the Loan
Payment Fund for the purpose of making partial payments in the order of priority
provided in Section 4.03(d) hereof.
(c) Replenishment of Reserve. The Reserve Fund shall be replenished from
Pledged Revenue available therefor in accordance with Section 4.02 hereof and, after
application of the foregoing, from amounts, if any, paid by the Town in accordance with
the Replenishment Resolution. In no event shall replenishment of the Reserve Fund to
the Reserve Requirement be made later than 90 days following notice from the Lender to
the Town Manager pursuant to Section 4.04(h) below.
4827 - 0054 - 1187.3
15
2q
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BORROWER
While any part of the Loan is outstanding or any other obligations hereunder or under any
of the other Financing Documents are unpaid or outstanding, the Borrower continuously
warrants, covenants and agrees as follows:
Section 5.01. Accuracy of Information. All information, certificates or statements
given to the Lender by the Borrower pursuant to this Agreement and the other Financing
Documents will be true and complete when given.
Section 5.02. Organization; Litigation. The Borrower is validly existing and in good
standing under the laws of its state of organization, has all requisite power and authority and
possesses all licenses, permits and approvals necessary to conduct its business. There is no
litigation or administrative proceeding threatened or pending against the Borrower which could,
if adversely determined, have a material adverse effect on the Borrower's financial condition.
Section 5.03. Performance of Covenants, Authority. The Borrower covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Resolution, this Agreement, the Note, and all
proceedings pertaining thereto. The Borrower covenants that it is duly authorized under the
constitution and laws of the State of Colorado, including, particularly and without limitation, the
Act, to execute and deliver the Note, this Agreement, and the other Financing Documents to
which it is a party, and that all action on its part for the execution and delivery of the Note, this
Agreement, and the other Financing Documents to which it is a party have been duly and
effectively taken and will be duly taken as provided therein and herein, and that the Loan, the
Note, this Agreement, and the other Financing Documents to which the Borrower is a party are
and will be valid and enforceable obligations of the Borrower according to the terms thereof and
hereof.
Section 5.04. Use of Proceeds. Disbursements by the Lender to the Borrower hereunder
will be used exclusively by the Borrower for the purposes represented to the Lender and in
accordance with the provisions of Section 2.03 hereof.
4827 - 0054 - 1187.3 17
3(
(d) promptly upon receipt thereof, a certification of values issued by the
County Assessor containing the Final Assessed Valuation of the Urban Renewal Project
Area and the Property Tax Base Amount for that year;
(e) as soon as available, a copy of any report to the Town of any auditor of the
Town if and to the extent that such report relates to the Borrower as a component unit of
the Town and following approval thereof by the Borrower and the Town;
(f) promptly at the time or times at which such event occurs, written notice of
any events likely to have a material adverse effect on the Borrower or the Loan; and
(g) promptly upon request of the Lender, the Borrower shall furnish to the
Lender such other reports or information regarding the Pledged Revenue or the assets,
financial condition, business or operations of the Borrower (to the extent related to the
Urban Renewal Project Area) as the Lender may reasonably request, to the extent legally
permissible for the Borrower to provide.
Section 5.09. Inspection of Books and Records. The Lender shall have the right to
examine any of the books and records of the Borrower at any reasonable time and as often as the
Lender may reasonably desire provided, however, that (a) the Lender shall provide not less than
3 days prior notice to the Borrower of its intent to make such examination and (b) the Lender
shall apply the standard of reasonableness to any request made of the Borrower with respect to
such examination. Without limiting the generality of the foregoing, the Lender agrees that it
shall use commercially reasonable efforts to maintain as confidential any non - public or
proprietary information obtained by the Lender in exercising its rights under this Section 5.09.
Section 5.10. Instruments of Further Assurance. The Borrower covenants that it will
do, execute, acknowledge, and deliver or cause to be done, executed, acknowledged, and
delivered, such agreements supplemental hereto and such further acts, instruments, and transfers
as the Lender may reasonably require for the better assuring, transferring, and pledging unto the
Lender the Pledged Revenue; provided, however, that the Borrower shall not be obligated to
incur in excess of nominal expenses in complying with this covenant.
Section 5.11. Additional Debt Restrictions.
(a) No Senior Debt. The Borrower shall not incur Debt payable from or
constituting a lien upon the Pledged Revenue senior to the lien thereon of the Loan.
(b) No Parity Debt Without Lender Consent. The Borrower shall not,
without the prior written consent of the Lender, incur Debt payable from or constituting a
lien upon the Pledged Revenue on parity to the lien thereon of the Loan.
(c) Certain Tax Sharing Agreements Not Debt. The Avon
Station/Confluence IGA and any agreements entered into by the Borrower for the
purpose of effecting the provisions of clause (b) of the definition of "Pledged Property
Tax Revenues" set forth in Article I hereof shall not constitute Debt for purposes of
Section 5.11(d) below or otherwise under this Agreement.
4827 - 0054 - 1187.3
19
33
Section 5.15. Annual Audit and Budget. At least once a year in the time and manner
provided by law, the Borrower will cause audits to be performed of the records relating to the
Borrower's revenues and expenditures. In addition, at least once a year in the time and manner
provided by law, the Borrower will cause budgets to be prepared and adopted. The audits and
budgets of the Borrower may be presented as a component unit of the Town. Copies of the
budgets and the audits will be filed and recorded in the places, time, and manner provided by
law.
Section 5.16. No Exclusion of Property. The Borrower shall take no action that could
have the effect of excluding property from the Urban Renewal Project Area unless consented to
in writing by the Lender.
Section 5.17. Amendments to Financing Documents Require Prior Lender Consent.
The Borrower shall not amend or consent to any amendment to any Financing Document, or
waive any provision thereof, without the prior written consent of the Lender.
Section 5.18. Enforcement of Cooperation Agreement. The Borrower shall do all
things reasonably necessary and appropriate to enforce the Cooperation Agreement against the
Town.
Section 5.19. Proper Allocation of New Construction. The Borrower shall cooperate
with the Lender in making a good faith effort to determine that the County Assessor has correctly
allocated new construction to the reassessment of property within the Urban Renewal Project
Area.
ARTICLE VI
RESERVED
ARTICLE VII
DEPOSITS; INVESTMENTS
Section 7.01. Investment of Funds. Notwithstanding any provision contained herein,
the Lender shall invest moneys on deposit in the Loan Payment Fund and the Reserve Fund as
directed in writing by the Borrower in Permitted Investments and may rely upon such direction
as a determination that the investment described in such direction is a Permitted Investment.
Section 7.02. Compliance with Tax Covenants. Any and all interest income on
moneys held and administered by the Lender under this Agreement shall be subject to full and
complete compliance at all times with the covenants and provisions of Section 5.05 hereof.
4827 - 0054 - 1187.3 21
3S
-� composition or other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian or other similar official for itself or for any substantial part of
its property, or the Borrower shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Borrower any case, proceeding or
other action of a nature referred to in clause (i) and the same shall remain undismissed for
a period of 60 days from the date of commencement; or (iii) there shall be commenced
against the Borrower any case, proceeding or other action seeking issuance of a warrant
of attachment, execution, distraint or similar process against all or any substantial part of
its property which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal, within 60 days from the
entry thereof, or (iv) the Borrower shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii)
or (iii) above; or (v) the Borrower shall generally not, or shall be unable to, or shall admit
in writing its inability to, pay its debts as they become due;
(i) a change occurs in the financial or operating conditions of the Borrower,
that, in the Lender's reasonable judgment, will have a materially adverse impact on the
ability of the Borrower to generate revenues sufficient to satisfy the Borrower's
obligations under this Agreement or its other obligations, and the Borrower fails to cure
such condition within 45 days after receipt by the Borrower of written notice thereof from
the Lender;
0) any funds or investments on deposit in, or otherwise to the credit of, any of
the Loan Payment Fund, Reserve Fund, or Transaction Costs Fund become subject to any
writ, judgment, warrant or attachment, execution or similar process not attributable to
actions of the Lender;
(k) the Town fails to appropriate moneys to pay when due any obligation
subject to annual appropriation; or
(1) any determination, decision, or decree is made by the Commissioner or the
District Director of the Internal Revenue Service, or by any court of competent
jurisdiction, that the interest payable on the Loan is includable in the gross income for
federal income tax purposes of the Lender by virtue of the occurrence of any event,
including any change in the Constitution or laws of the United States of America or the
State of Colorado, which results in interest payable on the Loan becoming includable in
the gross income of the Lender pursuant to Section 103(b) of the Internal Revenue Code,
and the rules and regulations promulgated thereunder if and so long as such
determination, decision or decree is not being appealed or otherwise contested in good
faith by the Borrower.
Section 8.02. Remedies on Occurrence of Event of Default.
(a) Lender's Rights and Remedies. Upon the occurrence and continuance of
an Event of Default, the Lender shall have the following rights and remedies which may
be pursued:
4827 - 0054 - 1187.3
23
1? -1
-1 Section 8.07. Other Remedies. Nothing in this Article VIII is intended to restrict the
Lender's rights under any of the Financing Documents or at law, and the Lender may exercise all
such rights and remedies as and when they are available.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Borrower (and the rights and remedies of the
Lender) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Lender the most favorable rights set
forth in the conflicting documents, except that if there is a direct conflict between any preprinted
terms and specifically negotiated terms (whether included in an addendum or otherwise), the
specifically negotiated terms will control.
Section 9.02. Successors; Assignment. The rights, options, powers and remedies
granted in this Agreement and the other Financing Documents will extend to the Lender and to
its successors and permitted Lender assignees, will be binding upon the Borrower and its
successors and will be applicable hereto and to all renewals and /or extensions hereof. This Loan
Agreement shall be assignable by the Lender to any entity without the consent of the Borrower,
provided that the assignee (unless an affiliate of the Lender) shall provide an opinion of legal
counsel to the effect that the assignee is legally authorized to perform the obligations of the
Lender hereunder.
Section 9.03. Indemnification. Except for harm arising from the Lender's willful
misconduct, gross negligence or bad faith, and without waiving governmental immunity, the
Borrower, to the extent allowed by law, hereby indemnifies and agrees, to defend and hold the
Lender harmless from any and all losses, costs, damages, claims and expenses of any kind
suffered by or asserted against the Lender relating to claims by third parties as a result of, or
arising out of, the negligence or other misconduct of the Borrower, or any claim made against the
Borrower, in connection with the financing provided under the Financing Documents. To the
extent permitted by law, this indemnification and hold harmless provision will survive the
termination of the Financing Documents and the satisfaction of Borrower's obligations to the
Lender.
Section 9.04. Notice of Claims against Lender; Limitation of Certain Damages. In
order to allow the Lender to mitigate any damages to the Borrower from the Lender's alleged
breach of its duties under the Financing Documents or any other duty, if any, to the Borrower,
the Borrower agrees to give the Lender written notice no later than twenty (20) days after the
Borrower knows of any claim or defense it has against the Lender, whether in tort or contract,
relating to any action or inaction by the Lender under the Financing Documents, or the
transactions related thereto, or of any defense to payment of the Borrower's obligations for any
reason. The requirement of providing timely notice to the Lender represents the parties' agreed -
to standard of performance regarding the duty of the Lender to mitigate damages related to
claims against the Lender. Notwithstanding any claim that the Borrower may have against the
4827 - 0054 - 1187.3 25
31
-� of Colorado, except to the extent superseded by Federal law. Invalidity of any provisions of this
Agreement will not affect any other provision. THE BORROWER AND THE LENDER
HEREBY CONSENT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITUATED IN DENVER, COLORADO, AND WAIVE ANY
OBJECTIONS BASED ON FORUM NON CONVENIENS, WITH REGARD TO ANY
ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING TO THIS AGREEMENT,
THE NOTE, OR THE PLEDGED REVENUE OR ANY TRANSACTIONS ARISING
THEREFROM, OR ENFORCEMENT AND /OR INTERPRETATION OF ANY OF THE
FOREGOING. Nothing in this Agreement will affect the Lender's rights to serve process in any
manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Lender's offices, and only upon the Lender's receipt of the executed originals thereof.
Invalidity of any provision of this Agreement shall not affect the validity of any other provision.
Section 9.08. Copies; Entire Agreement; Modification. The Borrower hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE
ENFORCEABLE. NO OTHER TERMS OR PROMISES NOT CONTAINED IN THIS
WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS
AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN
AGREEMENT. THIS NOTICE SHALL ALSO BE EFFECTIVE WITH RESPECT TO
ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT BETWEEN THE
BORROWER AND THE LENDER. A MODIFICATION OF ANY OTHER CREDIT
AGREEMENT NOW IN EFFECT BETWEEN THE BORROWER AND THE
LENDER, WHICH OCCURS AFTER RECEIPT BY THE BORROWER OF THIS
NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL
OR IMPLIED MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT ARE NOT
ENFORCEABLE AND SHOULD NOT BE RELIED UPON.
Section 9.09. Waiver of Jury Trial. THE BORROWER AND THE LENDER
HEREBY JOINTLY AND SEVERALLY WAIVE, TO THE EXTENT PERMITTED BY LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
RELATING TO ANY OF THE FINANCING DOCUMENTS, THE OBLIGATIONS
THEREUNDER, ANY COLLATERAL SECURING THE OBLIGATIONS, OR ANY
TRANSACTION ARISING THEREFROM OR CONNECTED THERETO. EACH OF THE
BORROWER AND THE LENDER REPRESENTS TO THE OTHER THAT THIS WAIVER
IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
Section 9.10. Attachments. All documents attached hereto, including any appendices,
schedules, riders, and exhibits to this Agreement, are hereby expressly incorporated by reference.
Section 9.11. No Recourse Against Officers and Agents. Pursuant to Section 11-57 -
209 of the Supplemental Public Securities Act, if a member of the Board of the Borrower, or any
officer or agent of the Borrower, acts in good faith in the performance of his duties as a member,
4827 - 0054- 1187.3 27
Lf 1
IN WITNESS WHEREOF, the undersigned have executed this Loan Agreement as of the
date set forth above.
[SEAL]
Attest:
LIZ
LENDER
VECTRA BANK COLORADO, NATIONAL
ASSOCIATION, a national banking association
By
Conrad Freeman, Senior Vice President
BORROWER
AVON URBAN RENEWAL AUTHORITY
By
Chairman, Board of Commissioners
Executive Director /Secretary, Board of Commissioners
4827 - 0054- 1187.3
[Signature Page to Loan Agreement]
29
LI'l
,.-. IN WITNESS WHEREOF, an authorized representative of Avon Urban Renewal
Authority, as Maker, has executed this Promissory Note as of the day and year first above
written.
AVON URBAN RENEWAL AUTHORITY
By
Chairman, Board of Commissioners
[SEAL]
Attest:
By
Executive Director /Secretary, Board of Commissioners
4827 - 0054- 1187.3
[Signature Page to Promissory Note]
2
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EXHIBIT C
URBAN RENEWAL AREA
4827 - 0054- 1187.3
tl--i
Cooperation Agreement ") pursuant to which the Town agreed, subject to certain conditions, to
loan funds to the Authority for urban renewal purposes; and
WHEREAS, the Authority is entering into a Loan Agreement (the "Loan
Agreement ") with Vectra Bank Colorado, National Association ( "Vectra") to obtain a loan in the
principal amount of not to exceed $7,200,000 (the "Loan") in order to finance the costs of
refunding the Prior Bonds (the "Refunding Project "); and
WHEREAS, the Town Council of the Town (the "Council ") has adopted its
Resolution 09- (the "2009 Replenishment Resolution") declaring its nonbinding intent and
expectation that it will appropriate any funds requested, within the limits of available funds and
revenues, in a sufficient amount to replenish the Reserve Fund to the Reserve Requirement, for
the purpose of providing additional security for the payment of principal and interest on the Loan
as defined in the Loan Agreement; and
WHEREAS, the Town Council has determined that it is in the best interest of the
Town and the Authority has determined it is in the best interest of the Authority, that the 2008
Cooperation Agreement be superseded and replaced in its entirety with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
Town and the Authority agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement.
2. 2008 COOPERATION AGREEMENT. This Agreement hereby
supersedes and replaces in its entirety the 2008 Cooperation Agreement.
3. PLEDGED PROPERTY TAX REVENUES.
(a) The Authority shall use Pledged Property Tax Revenues for
purposes described in the Loan Agreement and for any other lawful purpose, as permitted by the
Act.
(b) To the extent lawfully possible, the Town will take no action that
would have the effect of materially reducing Pledged Property Tax Revenues.
4. LOAN. (a) If the Council appropriates funds pursuant to the
Replenishment Resolution, such funds shall be a loan from the Town to the Authority to be
repaid as provided herein.
(b) The Town may advance to the Authority amounts to be used by the
Authority for costs incurred for its staffing, consultants, design, engineering, construction, and
other expenses in connection with the Plan and the Refunding Project, including any amounts
advanced prior to the date hereof, which amounts include the $190,000 previously advanced by
the Town under the 2008 Cooperation Agreement (the "Prior Advance "). Such amounts shall be
subject to annual appropriation by the Town Council, and the Town shall not be obligated to
2
L�q
F 5. PAYMENT. (a) All amounts payable by the Authority to the Town
hereunder, including the Prior Advances, shall constitute "Permitted Subordinate Debt" for
purposes of the Loan Agreement. The Authority shall cause such amounts to be paid from and to
the extent of Pledged Revenue (as defined in the Loan Agreement) available for the payment of
Permitted Subordinate Debt in accordance with Section 5.11(c) of the Loan Agreement.
(b) Due to the benefits gained by the Town from the Urban Renewal
Project, no interest will be due on the amounts advanced or loaned to the Authority by the Town
unless the Town and the Authority agree in writing that interest shall be paid on any such loans
or advances.
6. FURTHER COOPERATION. (a) The Town shall continue to make
available such employees of the Town as may be necessary and appropriate to assist the
Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban
Renewal Law, the Plan, the Urban Renewal Project, the Loan or the Refunding Project, or any
other lawfully authorized duty or activity of the Authority.
(b) The Town agrees to assist the Authority by pursuing all
lawful procedures and remedies available to it to collect and transfer to the Authority on a timely
basis all Pledged Revenue for deposit with Vectra in accordance with the Loan Agreement. To
the extent lawfully possible, the Town will take no action that would have the effect of reducing
tax collections that constitute Pledged Revenue.
(c) The Town agrees to pay to the Authority any Pledged
Property Tax Revenues (as defined in the Loan Agreement) when, as and if received by the
Town, but which are due and owing to the Authority pursuant to the Urban Renewal Plan.
7. SUBORDINATION. The Authority's obligations pursuant to this
Agreement, including the Prior Advances, are subordinate to the Authority's obligations for the
repayment of any current or future bonded indebtedness. For purposes of this Agreement, the
term "bonded indebtedness," "bonds" and similar terms describing the possible forms of
indebtedness include all forms of indebtedness that may be incurred by the Authority, including,
but not limited to, general obligation bonds, revenue bonds, revenue anticipation notes, tax
increment notes, tax increment bonds, and all other forms of contractual indebtedness of
whatsoever nature that is in any way secured or collateralized by revenues of the Authority, and
including the Loan.
8. GENERAL PROVISIONS. (a) Dispute Resolution. If a dispute arises
between the parties relating to this Agreement, the parties agree to submit the dispute to
mediation prior to filing litigation.
(b) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Colorado and shall be subject to the
limitations, if any, that are applicable under the Charter or the ordinances of the Town.
0
s(
(i) Termination. This Agreement may not be terminated by either
parry so long as the Loan, Bonds Additional Bonds or other Obligations of the Authority are
outstanding. So long as the Authority does not have any outstanding Loans, Bonds, Additional
Bonds, or Obligations, and does not owe any amounts to the Town under this Agreement, either
party may terminate this Agreement in writing upon thirty (30) days written notice to the other
party.
0) Assignment. This Agreement shall not be assigned, in whole or in
part, by either parry without the written consent of the other and of Vectra.
(k) Waiver. No waiver of a breach of any provision of this Agreement
by either parry shall constitute a waiver of any other breach or of such provision. Failure of
either party to enforce at any time, or from time to time, any provision of this Agreement shall
not be construed as a waiver thereof. The remedies reserved in this Agreement shall be
cumulative and additional to any other remedies in law or in equity.
C
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SOURCES AND USES OF FUNDS
Town of Avon, Colorado
Tax Increment Refunding Bonds, Series 2009
Dated Date 05/28/2009
Delivery Date 05/28/2009
Sources:
Bond Proceeds:
Par Amount 7,200,000.00
Other Sources of Funds:
Existing Reserve Fund 2,156,387.00
Interest Fund 106,646.00
Project Fund 60,000.00
2,323,033.00
9,523,033.00
Uses:
Project Fund Deposits:
Remaining 2008 Bonds 8,800,000.00
Interest on Bonds Until 5 /28/09 31,350.00
8,831,350.00
Other Fund Deposits:
Debt Service Reserve Fund 552,525.00
Delivery Date Expenses:
Cost of Issuance 139,000.00
Other Uses of Funds:
Additional Proceeds 158.00
9,523,033.00
May 20, 2009 12:58 pm Prepared by Stifel Nicolaus & Co.
(Finance 6.011 SWESTCOAVON- 2009TIF) Page 1
55
BOND PRICING
Town of Avon, Colorado
Tax Increment Refunding Bonds, Series 2009
Maturity
Bond Component Date Amount Rate Yield Price
Term Bond:
12/01/2028 7,200,000 4.250% 4.250% 100.000
Net Proceeds 7,200,000.00
May 20, 2009 12:58 pm Prepared by Stifel Nicolaus & Co. (Finance 6.011 SWESTCO:AVON- 2009TIF) Page 3
S?
7,200,000
Dated Date
05/28/2009
Delivery Date
05/28/2009
First Coupon
12/01/2009
Par Amount
7,200,000.00
Original Issue Discount
Production
7,200,000.00 100.000000%
Underwriter's Discount
Purchase Price
7,200,000.00 100.000000%
Accrued Interest .
Net Proceeds 7,200,000.00
May 20, 2009 12:58 pm Prepared by Stifel Nicolaus & Co. (Finance 6.011 SWESTCO:AVON- 2009TIF) Page 3
S?
f BOND SUMMARY STATISTICS
Town of Avon, Colorado
Tax Increment Refunding Bonds, Series 2009
All -In Arbitrage
TIC TIC Yield
Par Value 7,200,000.00 7,200,000.00 7,200,000.00
• Accrued Interest
• Premium (Discount)
- Underwriter's Discount
- Cost of Issuance Expense
- 139,000.00
- Other Amounts
Target Value
7,200,000.00 7,061,000.00 7,200,000.00
Target Date
05/28/2009 05/28/2009 05/28/2009
Yield
4.249957% 4.476357% 4.249957%
May 20, 2009 12:58 pm Prepared by Stifel Nicolaus & Co.
(Finance 6.011 SWESTCO:AVON- 2009TIF) Page 5
59
Town of Avon
Line Item Detail
Function: General Government/Financial #140
Department: Finance #140
Program: Avon Urban Renewal Authority #148
Account
Commodities:
Number
Account Description
62999
Office Supplies and Materials
62000
Personnel:
61101
Regular Full -time Salaries
61201
Automobile Allowance
61301
FT Pension
61303
Wellness
61304
Employee Assistance Program
61401
FICA/Medicare
61501
Group Health and Life Insurance
61505
Long -term Disability Insurance
61507
Dental Insurance
61509
Worker's Compensation
61510
Unemployment Insurance
61000 Total Personnel
Proposed
Original Revised Difference
Actual Budget Budget Increase
2008 2009 2009 (Decrease)
17,925
Commodities:
62905
Books and Periodicals
62999
Office Supplies and Materials
62000
Total Commodities
1,000
Contract Services:
63101
Legal Services
63199
Other Professional Services
63203
Printing and Reproduction
63000
Total Contract Services
206
Other Operating Costs:
64101
Travel, Training and Conference
64201
Telephone
64301
Postage and Delivery
64901
Advertising /Legal
64000
Total Other Operating Costs
60000
Total Expenditures
Proposed
Original Revised Difference
Actual Budget Budget Increase
2008 2009 2009 (Decrease)
17,925
10,000
10,000 -
24,684
35,000
10,000 (25,000)
-
1,000
1,000
42,609
46,000
21,000 (25,000)
206
-
- -
121
100
100 -
-
500
500
327
600
600 -
$ 42,936 $
46,600 $
21,600 $ (25,000)
Section II, Page 5
So /