HomeMy WebLinkAboutPACKET Town Board 2013-04-23The Mission of the Town of Estes Park is to plan and provide reliable,
high-value services for our citizens, visitors, and employees. We take
great pride ensuring and enhancing the quality of life in our community
by being good stewards of public resources and natural setting.
BOARD OF TRUSTEES - TOWN OF ESTES PARK
Tuesday, April 23, 2013
7:00 p.m.
AGENDA
PLEDGE OF ALLEGIANCE.
(Any person desiring to participate, please join the Board in the Pledge of Allegiance).
PROCLAMATION. “25TH ANNIVERSARY DUCK RACE DAY.”
PROCLAMATION. EMERGENCY PREPAREDNESS.
PUBLIC COMMENT. (Please state your name and address).
TOWN BOARD COMMENTS / LIAISON REPORTS.
TOWN ADMINISTRATOR REPORT.
1. CONSENT AGENDA:
1. Town Board Study Session Minutes dated April 9, 2013 and Town Board Minutes
dated April 9, 2013.
2. Bills.
3. Committee Minutes:
A. Public Safety, Utilities and Public Works, April 11, 2013.
1. Intergovernmental Agreement with Larimer County Department of Human
Services - Hub Juvenile Assessment Center.
2. Installation of Flower Sculpture at Peacock Park.
4. Estes Valley Planning Commission Minutes dated March 19, 2013
(acknowledgement only).
5. Resolution #06-13, Schedule public hearing of May 14, 2013, for a New Tavern
Liquor License Application filed by M&S, Inc. dba Rudy’s at Estes, 165 Virginia
Drive.
6. Intent to Annex Resolution #07-13 – Fall River Additions 12, 13, 14, 15, 16, 17, 18
& 19, Public Hearing scheduled May 28, 2013.
7. Appointment of Daniel C. Muffly as independent hearing officer – personnel matter.
Prepared 04/15/13
* Revised:
NOTE: The Town Board reserves the right to consider other appropriate items not available at the time the agenda was
prepared.
2. REPORT ITEMS:
1. AMERICA IN BLOOM. Municipal Worker Kelly.
3. LIQUOR ITEMS:
1. NEW LIQUOR LICENSE - CARL SCOTT DBA COFFEE ON THE ROCKS, 510
MORAINE AVENUE, TAVERN LIQUOR LICENSE. Town Clerk Williamson.
4. PLANNING COMMISSION ITEMS. Items reviewed by Planning Commission or staff for
Town Board Final Action.
1. CONSENT ITEMS:
A. SUPPLEMENTAL CONDOMINIUM MAP #2, Stone Bridge Estates
Condominiums, 1167 Fish Creek Road, Stone Bridge Estates, LLC &
Hanson Holdings, LLC/Applicants.
2. ACTION ITEMS:
Mayor – Open Public Hearing
Staff Report
Public Testimony
Mayor – Close Public Hearing
Motion to Approve/Deny.
A. SPECIAL REVIEW 2013-02, ELKHORN TUBING HILL, All Elkhorn Addition
(Less Elkhorn Plaza Lodges, less a portion of a metes & bounds parcel); 600
W. Elkhorn Avenue; CMS Planning/Applicant.
5. ACTION ITEMS:
1. BOARD OF APPEALS APPOINTMENTS. Director Chilcott.
2. PURCHASE OF MINI-EXCAVATOR. Director Bergsten.
3. MORAINE AVENUE (HWY 36) PEDESTRIAN IMPROVEMENTS – CONTRACT
APPROVAL. Director Zurn.
4. ORDINANCE #06-13 APPROVING CERTIFICATES OF PARTICIPATION. Finance
Officer McFarland.
5. INTERGOVERNMENTAL AGREEMENT WITH USA PRO CYCLING CHALLENGE
BIKE RACE. Director Winslow.
6. EXTENSION OF ESTES PARK HOUSING AUTHORITY LOAN. Finance Officer
McFarland & EPHA Director Kurelja.
7. FOSH AGREEMENT - DETERMINATION OF FEASIBLITY. Attorney White.
6. ADJOURN.
Town of Estes Park, Larimer County, Colorado, April 9, 2013
Minutes of a Study Session meeting of the TOWN BOARD of the Town
of Estes Park, Larimer County, Colorado. Meeting held at Town Hall in
Rooms 202/203 in said Town of Estes Park on the 9th day of April,
2013.
Board: Mayor Pinkham, Mayor Pro Tem Blackhurst, Trustees Elrod,
Ericson, Koenig, Norris and Phipps
Attending: Mayor Pro Tem Blackhurst, Trustees Elrod, Ericson, Koenig,
Norris and Phipps
Also Attending: Town Administrator Lancaster, Town Attorney White and
Town Clerk Williamson
Absent: Mayor Pinkham and Assistant Town Administrator
Richardson
Mayor Pro Tem Blackhurst called the meeting to order at 4:30 p.m.
FUTURE AGENDA ITEMS
The Board requested the April 23, 2013 agenda include the discussion on the feasibility
of a performing art theater as outlined in the FOSH agreement. If the Board determines
it is not feasible, the Town would be required to distribute the funds per the FOSH
agreement.
Mayor Pro Tem Blackhurst requested staff limit the number of special meetings and
perhaps reconsider the order of study session items instead of holding additional
meetings. Town Administrator Lancaster stated staff would limit meetings to study
sessions prior to Town Board meetings and limit the number of special meetings.
TOWN BOARD MEETING PROCEDURES/TOOL BOX.
Limiting speaker time
The Board discussed the need to manage the meetings by addressing speakers that
stray off topic; however the Board decided not to limit public comment. Sign in sheets
would be used for items in which large public turnout is anticipated.
Trustee Koenig joined the meeting at 5:03 p.m.
Board Committee Appointment Process
The Board discussed the process and stated the importance in interviewing applicants
to determine skills and interest not outlined in the application. Staff would develop a
written appointment process for the Board to consider.
EMPLOYEE RETIREMENT PLANS
Administrative Services was requested to review the retirement benefits for all Police
personnel because an inequity was perceived. Through the review it was determined
the percentages paid by the Town to individual PERA and ICMA accounts has not been
consistent. With the downturn in the economy beginning in 2005, PERA began to have
financial issues which had significant effects on its structure and contributions from
2006 – 2010. During this timeframe ICMA contributions by the Town were not updated
to keep pace with the changes to PERA, therefore, by 2011 there was a 4.5% difference
in the contribution for PERA covered employees versus ICMA employees. In 2011,
Administration took a step towards closing the gap on these inequities by approving a
change to the ICMA contributions: Management from 10% to 13.7% and Police from
Town Board Study Session – April 9, 2013 – Page 2
9.2% to 11.10%. Staff would recommend the Town contribute the same amount to
each employee’s retirement plan moving forward. PERA employer contribution rates
are set by PERA and may not be modified by the employer, therefore, it is
recommended the Town adopt a policy to contribute to all employee retirement plans at
the rate established by PERA. Staff would also recommend the Town retroactively
contribute to the Police employee ICMA retirement plans at the 13.7% rate starting
January 2011.
The Board requested staff review the tax implications with providing retroactive
payments outside of tax years that have already closed; any retro pay should address
all individuals working for the Town as of January 1, 2011 including individuals that have
left employment with the Town, identify the total cost to the Town and how would it be
funded, and the Board supports the equal retirement contribution for all employees.
Municipal Code Updates and Leak Policy
Director Bergsten stated the Water department has been in the process of reviewing
business operations and revising the Municipal Code to address irrelevant language
regarding the Tabor Act, separate connections required to allow flexibility of service line
design on Townhomes, adding a section to allow the Water department to shut service
off to clarify the department’s authority to operate the customer’s service valve, and
clarify the need for the customer to provide access to the water meter. Staff seeks input
from the Board on the discontinuance, termination and abandonment of service. The
current code language allows water service to be revoked and allows water service
charges to be collected through a lien on the property, insuring the recovery of
delinquent charges.
Board comments have been summarized: questioned why the discontinued service
would be at the owner’s expense; the tap should run with the land and not the property
owner as it adds value to the land; and a policy on when and how the Town places liens
on a property should be developed.
Water Leak Adjustment Policy
The Town’s current practice has been to provide bill adjustments to customers who
experience a water leak at 100%. Staff would recommend reviewing this practice to
consider fairness, financial responsibility, conservation responsible maintenance and
administrative simplicity. There are no standard for leak policies from utility to utility. A
standard policy would provide staff with a mechanism that ensures equality for all rate
payers. Staff would suggest a policy that is easily understood, simple to compute,
provides enough detail to avoid being arbitrary and capricious, provide room for
interpretation on a case-by-case basis, avoid procedural details, and be fair to both the
leak applicant and the other rate payers. A 2011 Master’s Thesis by Rick Selin
surveyed 112 utilities around the country and developed recommendations on how to
address water leak policies including eligibility, adjustment period, adjustment
frequency, adjustment credit cap and adjustment credit calculation. Recommendations
included requiring a receipt for a repair, proof the insurance company would not cover
the utility bill, adjustments within 6 months of the leak discovery date, subsequent
consumption returns to normal levels, leak consumption must be a minimum of three
times higher than the class average, bulk water accounts would be excluded,
adjustment period would be limited to two billing periods, one adjustment every 60
months, no cap on credit cap, and leak payments could be based on three options 1)
raw material costs/incremental costs, 2) split the leak 50/50 or 3) 100% leak credit.
Trustee comments included: the need to change current practices of bleeding over 3
million gallons of water per year before addressing a new policy; the amount forgiven
over the past 10 years is minimal and not an undue burden per rate payer; the policy
should address leaks rather than the negligence of water left on; CML offers a leak
insurance policy that the Water department could make customers aware of, there
should be proof provided of a repair in order to forgive the bill; and the bill should be
forgiven minus the class average.
Town Board Study Session – April 9, 2013 – Page 3
The revised policy would be forwarded to the Public Safety, Utilities and Public Works
Committee for review and then forward to the Town Board for adoption.
There being no further business, Mayor Pro Tem Blackhurst adjourned the meeting at
6:40 p.m.
Jackie Williamson, Town Clerk
Town of Estes Park, Larimer County, Colorado, April 9, 2013
Minutes of a Regular meeting of the Board of Trustees of the Town of
Estes Park, Larimer County, Colorado. Meeting held in the Town Hall in
said Town of Estes Park on the 9th day of April, 2013. Meeting called to
order by Mayor Pro Tem Blackhurst.
Present: Eric Blackhurst, Mayor Pro Tem
Trustees Mark Elrod
John Ericson
Wendy Koenig
Ron Norris
John Phipps
Also Present: Frank Lancaster, Town Administrator
Greg White, Town Attorney
Jackie Williamson, Town Clerk
Absent: William C. Pinkham, Mayor
Lowell Richardson, Assistant Town Administrator
Mayor Pro Tem Blackhurst called the meeting to order at 7:00 p.m. and all desiring to
do so, recited the Pledge of Allegiance.
PROCLAMATIONS.
Mayor Pro Tem Blackhurst presented the following Proclamations – Month of the Young
Child, Parkinson’s Disease Awareness Month and Estes Cares About Bears Month.
The Bear Education Task Force unveiled a banner “Estes Cares About Bears! Stash
Your Trash – Keep Bears Wild”, which would be displayed at the 34/36 intersection.
The group’s mission is ultimately to create a better environment for bears and other
wildlife, to preserve watchable wildlife in the Estes Valley, and to promote public safety.
The group has developed programs for organizations such as restaurants, HOAs, clubs,
etc., developed a website, utility bill stuffers and dumpster stickers. The group along
with Bears Are Us has developed a positive recognition and reinforcement program for
businesses that have taken the bear-responsible business pledge and display a window
decal in their business. The Board thanked all involved in the effort and stated this
process has been a model example of how the community can come together to
address an issue.
PUBLIC COMMENTS.
Robert Burger/Glen Haven citizen stated traffic through downtown could be curtailed
significantly with proper signage directing visitors to Rocky Mountain National Park
through the Fall River entrance rather than the Beaver Meadow entrance, which
requires visitors to maneuver through downtown.
Peter & Ellen Reinertsen/Owners of Misty Mountain Lodge at 232 E. Riverside Drive,
requested the Town Board reconsider the one-way couplet downtown for the Federal
Lands Access Program grant. Either project, one-way or two way reroute of the
highway, would have significant impact to their business, however, the two way is
preferred by CDOT and would garner more support by those reviewing the grant. The
one-way would have significant negative effects on the remaining property values.
TOWN BOARD COMMENTS / LIAISON REPORTS.
Trustee Norris stated Visit Estes Park discussed its role in economic development and
reached the conclusion it should have a seat at the table; however, it should not lead
the effort. During a recent Economic Development Council of Colorado meeting the
conference leaders confirmed the approach of the Economic Development Task Force,
Board of Trustees – April 9, 2013 – Page 2
stressed the importance of diversifying the community’s economic base, and good jobs
bring a higher quality of life to the community.
Mayor Pro Tem Blackhurst stated the Housing Authority would hold its monthly meeting
Wednesday, April 17, 2013 in Room 203 at 8:30 a.m. because a quorum was not
available on April 10, 2013. The Public Safety, Utilities and Public Works Committee
would meet on Thursday, April 11, 2013 in the Board Room at 8:00 a.m.
TOWN ADMINISTRATOR REPORT.
None.
1. CONSENT AGENDA:
1. Town Board Study Session Minutes dated March 26, 2013, and Town Board
Minutes dated March 26, 2013.
2. Bills.
3. Committee Minutes:
a. Community Development / Community Services, March 21, 2013.
1. Portable Bleacher, Kay Park Recreation - $41,385.65 – budgeted.
4. Resolution #04-13, Surprise Sidewalk Sale – May 4 – 5, 2013.
5. Resolution #05-13, Schedule public hearing of April 23, 2013, for a New
Tavern Liquor License Application filed by Carl Scott dba Coffee On the
Rocks, 510 Moraine Avenue.
It was moved and seconded (Koenig/Norris) to approve the Consent Agenda, and it
passed unanimously with Mayor absent.
2. REPORTS AND DISCUSSION ITEMS:
1. ROCKY MOUNTAIN NATIONAL PARK UPDATE.
Superintendent Baker provided an update on Park activities: Steering
committee formed to help develop the Centennial celebration events for the
Park in 2015; visitation up in 2012 in spite of the fires; sequestration has
required the Park to reduce its operating budget by 5%, thereby decreasing the
number of seasonal personnel hired, not opening the Moraine Visitor Center in
2013 and closing the Glacier campground for the entire season; a brochure on
the Fern Lake fire was mailed to all 80517 addresses; the fire has not been
officially claimed out, however the last smoke was seen in January; elk culling
has not occurred for the last two winters as the numbers have been within
acceptable levels; the Lily Lake dam was repaired during the fall of 2012 with
revegetation underway and the trail reopened; Bear Lake road reconstruction
would be finished this year with paving to be completed by the end of July at
the latest; and a multi-use trail study has been underway to study alternatives
and align/connect to the systems completed or underway by the Town and the
Estes Valley Recreation and Parks District.
3. ACTION ITEMS:
1. GOVERNING POLICIES – STAFF LIMITATIONS.
The Town Board has been working on adopting the Policy Governance model
of governance for the Town. The section presented would address staff
limitations, which articulates the limitations and requirements of staff,
particularly the Town Administrator, as it relates to the governance of the Town.
It was moved and seconded (Norris/Phipps) to approve Police Governance
– Staff Limitations, and the motion passed unanimously with Mayor Pinkham
absent.
Board of Trustees – April 9, 2013 – Page 3
2. CLASSIFICATION & COMPENSATION STUDY CONTRACT.
Director Williamson commented the Board approved funding for a Classification
and Compensation study for 2013. The last study was completed in
1999/2000. The study would updated the current Compensation plan utilizing
accepted practices in the management and design of classification and
compensation systems, and address changes in the Town’s operations and
staffing over the last 13 years. An RFP was completed in February with six
proposals received ranging from $18,750 to $50,000. The range in cost was
associated on the low end with Town staff being required to complete a majority
of the work and on the high end due to staffing costs. A review team consisting
of a representative from each department provided a review and evaluation of
the proposals. The team unanimously recommends ESM Consulting due to
their local presence and understanding of Colorado and municipalities.
Reference checks also indicated a strong knowledge of local government,
mindful of budgetary limitations of municipalities and strong communication
skills. It was moved and seconded (Norris/Phipps) to approve a contract
with ESM Consulting Services for a Classification and Compensation
study, and it passed unanimously with Mayor Pinkham absent.
3. 2013 SHUTTLE CONTRACT WITH MCDONALD TRANSIT.
Director Winslow stated the Shuttle Committee and staff are proposing a five
year contract with McDonald Transit Associates Inc. to provide shuttle services
to ensure seamless operation of services and provide cost control from year-to-
year. The contract would be subject to annual appropriations and the
negotiation of costs by March 31st of each calendar year. For 2013, McDonald
Transit would lease three vehicles at a cost not to exceed $3,400 per vehicle
per month from Davey Coach and maintain and insure a Town owned trolley.
The Town would pay for the installation and removal of the GPS tracking
equipment and exterior lettering/logos as appropriate. The hourly service rate
for 2013 would be $50.45 which would include routine maintenance, shuttle
drivers, insurance, and fuel costs up to $2.50 a gallon for five full-service
schedules and charters for a total cost of $321,935.40. Staff has reviewed the
option of adding bike racks and has concerns related to the possible safety and
damage it may cause to the rentals. Staff has had difficulties procuring a gas
trolley as there is a limited supply. If a trolley has not been identified prior to
the shuttle season an additional bus would be rented. After further discussion,
it was moved and seconded (Koenig/Ericson) to approve the agreement
with McDonald Transit Associates Inc., to provide shuttle services for the
Town of Estes Park, as specified in the agreement, and it passed
unanimously with Mayor Pinkham absent.
4. PARK THEATER SETTLEMENT AGREEMENT.
On December 19, 2012, a Town front-end loader removing snow from Moraine
Avenue slide into the southwest corner of the Park Theater building causing
damage to the building. As the front-end loader is not considered a “motor
vehicle” under the provisions of the Colorado Governmental Immunity Act, the
Town’s insurance provider denied the claim. The Town retained Thorp
Associates PC and Westover Construction to investigate and determine the
extent of the damage and a cost to repair the building. The Full and Final
Release and Settlement Agreement negotiated with the owner of the Park
Theater building, Park Theater Mall LLC, provides the Town agrees to repair
the building as stated in the report, retain a certified structural engineer to
determine whether there are any structural damages to the building due to the
accident, and the building owner agrees to a full and final release of any and all
liabilities of the Town for the damage with the completion of the repairs.
The Board requested staff provide a report on how the repairs would be funded
and what items may be deferred to cover the costs. Mayor Pro Tem Blackhurst
also requested the Board further discuss the need to reestablish the
Catastrophic Loss fund to cover items such as this in the future.
Board of Trustees – April 9, 2013 – Page 4
After further discussion, it was moved and seconded (Koenig/Phipps) to
approve the Full and Final Release and Settlement Agreement between
the Town of Estes Park and the Park Theater Mall LLC as presented, and it
passed unanimously with Mayor Pinkham absent.
Whereupon Mayor Pro Tem Blackhurst adjourned the meeting at 9:00 p.m.
Eric Blackhurst, Mayor Pro Tem
Jackie Williamson, Town Clerk
Town of Estes Park, Larimer County, Colorado, April 11, 2013
Minutes of a Regular Meeting of the PUBLIC SAFETY/UTILITIES/PUBLIC
WORKS COMMITTEE of the Town of Estes Park, Larimer County,
Colorado. Meeting held in the Town Hall in said Town of Estes Park on
the 11th day of April, 2013.
Committee: Chair Blackhurst, Trustees Koenig and Phipps
Attending: Chair Blackhurst, Trustees Koenig and Phipps
Also Attending: Town Administrator Lancaster, Commander Rose, Dir.
Bergsten, Dir. Zurn, Supt. Fraundorf, and Deputy Town Clerk
Deats
Absent: Chief Kufeld and Assistant Town Administrator Richardson
Chair Blackhurst called the meeting to order at 8:00 a.m.
PUBLIC COMMENT.
None.
PUBLIC SAFETY.
INTERGOVERNMENTAL AGREEMENT WITH LARIMER COUNTY DEPARTMENT
OF HUMAN SERVICES – HUB JUVENILE ASSESSMENT CENTER.
When the Police Department refers a juvenile for services or takes a juvenile into
custody for a serious violent felony or misdemeanor crime, the individual must be
processed through the Larimer County Human Services Department Juvenile
Assessment Center, commonly known as The Hub. A screening process is performed
by Hub staff and a disposition is reached related to services to be provided to the
juvenile or, in some cases, the juvenile is placed in a detention center. When placed
into a detention facility certain costs are affixed to the juvenile arrestee, such as
transportation to the detention facility, and transportation to and from juvenile court. It is
the desire of the Estes Park Police Department to continue a relationship with The Hub
by renewing an intergovernmental agreement (IGA) for a five-year term. The
agreement will automatically renew each year until December 31, 2017, unless modified
or terminated by either party. Fees for services provided by The Hub are based on prior
agency history as it relates to juvenile cases. Estimated costs for 2013 are $1771, and
are budgeted in account #101-2100-421-22-98. The Committee recommends
approval of a five-year IGA with the Larimer County Department of Human
Services – Hub Juvenile Assessment Center at an estimated cost of $1771 for
2013 budgeted in account #101-2100-421-22-98 to the April 23rd Town Board
meeting consent agenda.
REPORTS.
Reports provided for informational purposes and made a part of the proceedings.
1. Verbal Updates –
o Parking Permits – Commander Rose reported that approximately 50
parking permits are issued annual for downtown residential overnight
parking.
UTILITIES.
PURCHASE MINI-EXCAVATOR FOR WATER.
The Water Department currently utilizes a 15-year old backhoe that has reached the
end of its useful life. Replacement of the backhoe was fully funded in 2012, however
the monies to purchase new equipment were not allocated in the 2013 vehicle
Public Safety/Utilities/Public Works Committee – April 11, 2013 – Page 2
replacement budget. Dir. Bergsten said it was the department’s intention to include the
backhoe replacement in the 2013 budget, but due to changes in staff, it was not.
Staff has identified the need to replace the backhoe and is requesting approval to
purchase a smaller, mini-excavator that will allow crews to be less intrusive when
working near traffic and private property. Bids for the equipment were solicited with the
following results:
Wagner Equipment “Caterpillar” – Windsor, Colorado
Model #308ECR SB $79,056
Colorado Machinery “John Deere” – Fort Collins, Colorado
Model #85D $79,402
Power Motive “Komatsu” – Denver, Colorado
No Bid
Staff recommends the purchase of a mini-excavator from Wagner Equipment at a cost
of $79,056. Approval of this purchase will require appropriating additional funds during
the supplemental appropriation in December. Chair Blackhurst expressed reluctance to
approve the purchase outside of the 2013 budget which causes monies to be shifted or
taken from other areas of the budget, and asked if this type of equipment could be
shared between Town departments. Dir. Bergsten said that sharing of equipment does
occur between departments. The Committee recommends approval of the
purchase of a mini-excavator (Caterpillar 308ECR SB) from Wagner Equipment at
a cost of $79,056, from the Vehicle Replacement Fund #635-700-435-34-42,
unbudgeted, as a consent item on the April 23, 2013, Town Board agenda.
REPORTS.
Reports provided for informational purposes and made a part of the proceedings.
1. Payport Update – Testing of the Payport system which will allow the Town to
take credit and debit card payments for various Town fees and services is
underway. Staff has been training on the system and developing business
processes for the credit card payments. The availability of this service will be
made available to the public soon and advertised through newspaper articles and
email notifications.
2. IT Staffing – Staff has entered into discussions with local vendors regarding
options for providing overall IT support to the Town. Initial topics of discussion
include providing historical information about Town operations, information about
the software and hardware used by the Town, and areas of responsibility. Staff
is researching a model in which the Town would employ one IT staff person, with
a vendor providing on-site personnel several days per week. Support could
potentially be provided remotely, referred to Town IT staff, or provided by the
vendor’s on-site employee. This model would eliminate two full-time Town IT
employees. A formal Request for Proposals (RFP) will be issued to get a sense
of what costs would be incurred by the Town for this type of service. Chair
Blackhurst said he will be interested to see the cost analysis, stating he is
skeptical that the Town can get the same level of service from an outside vendor
that it gets from Town employees who know the system. Trustee Koenig
suggested utilizing students in internship-type programs to assist with IT tasks.
3. Verbal Updates –
o Water Department RFP – An RFP is being issued for on-call general
engineering services to pre-approve companies to work with the Town
based on cost and experience.
PUBLIC WORKS.
INSTALLATION OF FLOWER SCULPTURE AT PEACOCK PARK.
In 2012, the Estes Valley Sunrise Rotary donated a 10’ tall bronze columbine sculpture
to the Town of Estes Park. Staff considered several locations for the placement of the
Public Safety/Utilities/Public Works Committee – April 11, 2013 – Page 3
sculpture and is proposing that it be installed in Peacock Park. A post and bronze
plaque recognizing the Estes Valley Sunrise Rotary’s donation will also be installed.
Weather permitting, the installation will take place within the next several weeks. Dir.
Zurn noted that the sculpture will be entered into the maintenance program currently in
place for the Town’s bronze sculptures. Trustee Phipps asked why the Town does not
have a policy regarding accepting donations of this type. Dir. Zurn said staff is working
on a policy, however even with a policy, due to the various types of public art, it is likely
these proposals will be brought to the Board for consideration. Chair Blackhurst noted
that the Town receives requests for the donation of other items including memorial
plaques, benches, and trees and said a policy should address a process for considering
all types of donations. Town Administrator Lancaster said donations should fit the
character of the community and said staff is researching policies of neighboring
communities. The Committee recommends approval of the installation of the
flower sculpture at Peacock Park to the consent agenda for the April 23, 2013,
Town Board meeting.
Trustee Koenig suggested that staff consider repairing and refurbishing the Buell Porter
Christmas decorations during the summer prior to them being displayed again during
the holidays. She said that Lynda Vogel has guidelines and materials available for the
historic renovation of these pieces.
REPORTS.
Reports provided for informational purposes and made a part of the proceedings.
1. America in Bloom – Municipal Worker Keri Kelly provided the Committee with
information about the America in Bloom program. For the first time, Estes Park will
be participating in this non-profit, nationwide program that began in 2001 to
promote beautification through education and community involvement while utilizing
flowers, plants, and trees. Locally known as Estes Park in Bloom, the project is a
community-wide effort involving businesses, residents, and Town government and
is a great way to celebrate pride in the community. A team of expert judges will be
in Estes Park on July 11th and 12th to evaluate the local displays based on six
criteria: floral displays, urban forestry, landscaped areas, heritage preservation,
environmental efforts, and the overall impression/cleanliness of the community. A
detailed, written evaluation will be provided to the Estes in Bloom committee
following the judges’ visit. The Committee requested that Municipal Worker Kelly
provide information on the program to the Board of Trustees at the April 23rd Town
Board meeting.
There being no further business, Chair Blackhurst adjourned the meeting at 8:54 a.m.
Cynthia Deats, Deputy Town Clerk
Page 1
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Wes Kufeld, Chief of Police
Date: April 23, 2013
RE: Intergovernmental Agreement with Larimer County Department of Human
Services - HUB Juvenile Assessment Center
Background:
Anytime the police department refers a juvenile for services or takes a juvenile into
custody for a serious violent felony or misdemeanor crime, they must be processed
through the Larimer County Human Services Department Juvenile Assessment Center,
more commonly known as the HUB. The juvenile goes through a screening process
performed by staff members of the Larimer County HUB. Once the screening process
is completed a disposition is reached concerning the juvenile, services are rendered or
in some cases the juvenile is placed in a juvenile detention facility. Once a juvenile is
placed into a detention facility, certain costs are affixed to a juvenile arrestee. One of
the costs most commonly associated with these types of juvenile cases is the
transportation to the detention facility itself and also to and from juvenile court. When a
law enforcement agency uses the Larimer County HUB to provide services for a
juvenile, a service fee is affixed to the agency requesting those services. The fee is
based on prior agency history as it relates to Juvenile cases.
The last HUB agreement was in effect for 5 years, this is a renewal of that agreement.
Budget:
Based upon the estimated costs provided by the Larimer County Human Services
Department the costs for 2013 are $1,771 which is budgeted in 101-2100-421.22-98.
Future costs will be determined based on HUB usage and therefore continued to be
budgeted accordingly.
Staff Recommendation:
Staff recommends approval of the IGA.
POLICE DEPARTMENT Memo
1
2013 INTERGOVERNMENTAL AGREEMENT
CONCERNING LARIMER COUNTY JUVENILE ASSESSMENT CENTER AKA THE
HUB AND JUVENILE TRANSPORT SERVICES
This agreement is made between the Board of County Commissioners of Larimer County,
Colorado (County) and the City of Fort Collins (Fort Collins), City of Loveland (Loveland), the
Town of Estes Park (Estes), the Town of Berthoud (Berthoud), the Colorado State University
Police Department (CSU), the Colorado State Patrol and the Larimer County Sheriff’s Office
(Sheriff) referred to collectively hereafter as “Law Enforcement”.
I. RECITALS
1. The County owns certain property located at 2555 Midpoint Drive, Suite F, Fort Collins,
Colorado, which property is currently used and known as “The Hub”.
2. The County has expended funds and will continue to expend funds for ongoing
operational costs (including personnel) and maintenance of The Hub.
3. Staff of Larimer County Department of Human Services are located in The Hub,
including dedicated Hub staff (intake specialists, social caseworker, office assistants and
a Hub manager).
4. The purpose of The Hub is:
To function as a coordinated multi-agency program which contributes to the safety of
youth, families, and the community through rapid, thorough assessment; early
intervention; and improved access to appropriate services.
The Hub is designed to screen service needs of families with children and youth aged birth to 18
who are in need of services due to:
• Abuse and neglect
• Delinquency
• High risk behaviors that are non-detainable or beyond the control of parent(s)
• Parent – child conflict
• Drug and alcohol abuse
• Runaway youth
Services include:
• Detention screening and related services such as fingerprinting and detention screen
photos
• EHM hookups 24/7
• EHM monitoring during afterhours, on weekends, and over holidays
• Adult protection screening
• Comprehensive assessment of at-risk children and youth
• On-site services may include individual and family counseling and multi-disciplinary
staffing
• Referral to appropriate agency and community services
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5. Juveniles brought to The Hub by Law Enforcement, including juveniles from the
unincorporated areas of Larimer County, receive screening services through The Hub,
which services benefit Law Enforcement and promote the welfare and safety of the
citizens in their jurisdictions.
6. In exchange for services received by Law Enforcement through The Hub, the parties have
agreed that it is appropriate and fair that Law Enforcement contribute to the County’s
cost for operation and maintenance of The Hub and for the cost of their share of juvenile
transports.
7. Part 2 of Article 1 of Title 29, C.R.S., authorizes local government to cooperate and
contract with one another to provide any function, service or facility lawfully authorized
to each, including sharing of costs.
8. The parties desire to cooperate and contract with one another concerning the operating
and maintenance of The Hub and transportation of at-risk juveniles and juveniles in
custody of Law Enforcement, and the sharing of the costs for the same, as set forth in this
Agreement.
II. TERMS
In consideration of the mutual covenants, promises and obligations contained herein, the
parties agree as follows:
9. County Operation of The Hub
The County agrees to operate The Hub for the purposes set forth in Paragraph 4, above, at
2555 Midpoint Drive, Suite F, Fort Collins, Colorado, during the term of this Agreement.
The Hub will be open and available for Law Enforcement to bring juveniles in custody,
alleged juvenile offenders, or at-risk youth in need of services. The Hub will be open to Law
Enforcement and staffed by qualified intake specialists twenty-four hours per day, seven days
a week, throughout each calendar year. In the event of severe inclement weather or other
emergency, the County may not be able to provide services; if a decision is made that Hub
staff cannot provide any services or must restrict services, Hub staff will notify Law
Enforcement.
10. Operating Costs
A. For each calendar year, each Law Enforcement entity shall pay its contribution to the
Larimer County Department of Human Services in one lump sum on or before June 30th
each year for The Hub estimated operating expenses for that year. The County will bill
Law Enforcement no later than March 31 each year. The respective contribution of the
costs for each Law Enforcement entity shall be determined based upon the prior calendar
year’s referral data. The contribution will equal The Hub’s estimated operating expenses
for the current year multiplied by the number of referrals each Law Enforcement entity
made to The Hub divided by the total number of participating Law Enforcement referrals
The Hub received.
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B. The operating costs of The Hub that shall be shared on a pro-rata basis by Law
Enforcement shall include, but are not limited to, such expenses as office supplies; food
supplies (for the children and youth); staff background checks and notary; stand-by
security; staff travel and training; equipment; charges for space, utilities, repair and
maintenance, including alterations, and janitorial; telephone and Internet, copier and
printing, postage, and computer. No costs for any Hub personnel shall be considered part
of The Hub operating costs for the purposes of this agreement.
C. The County shall provide to Law Enforcement an estimated budget for The Hub
operating costs no later than June 30 of each year for the following calendar year. That
budget will be finalized in February of the following year based on actual costs for the
prior year and estimated costs for the new calendar year. The final budget shall be
provided to Law Enforcement within 15 days of its completion along with an invoice, but
in any case, no later than February 28.
D. In the event that a Law Enforcement entity questions or disputes the amount of their
contribution or the appropriateness of the expenses budgeted, that party shall notify the
County in writing within ten days of receipt of the budget information. Upon receipt of
the questions or dispute, the County shall either provide a correct contribution amount
within 30 days or schedule a meeting with the party within 15 days to discuss and resolve
the questions or dispute.
E. Due to requests by Law Enforcement for their budget planning purposes to have fixed
operating costs for any specific calendar year, the parties agree that no adjustment will be
made to the amounts due once Law Enforcement has been billed.
11. Transport Services
Juveniles screened by The Hub at the request of Law Enforcement who require secure
detention shall be transported to a detention or secure facility by Larimer County Department
of Community Corrections (“Community Corrections”) personnel. Juveniles may also be
transported to other facilities to receive services, such as Poudre Valley Hospital or Mountain
Crest, when determined by HUB staff to be in the best interest of the juvenile. In the event of
severe inclement weather or other emergency, the County may not be able to provide
transportation services; if a decision is made that Community Corrections staff cannot
provide transportation services, Hub staff will notify all Law Enforcement agencies. If
Community Corrections personnel provide transport, the Law Enforcement entity that
requested the screening shall pay to Larimer County Community Corrections a transport fee
for each trip; said rate to be assessed in the manner set forth in paragraph 12 below.
Juveniles will also be transported by Community Corrections personnel from detention
facilities to their first and subsequent court appearances. The Law Enforcement entity shall
not be liable for damage or injury resulting from or associated with the transportation of any
such juvenile or welfare or treatment of any such juveniles during the course of said
transportation; provided, however, that Community Corrections shall not be liable for
damage or injury resulting from the negligent acts or omissions of any person or entity other
than Community Corrections. Any such transportation services shall be provided in
accordance with all applicable laws. One trip is generally defined as a one-way transport. A
transport is transportation provided for one juvenile either to detention or to another
designated location.
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12. Transport Fees
Transport fees will be assessed based on each eligible trip provided for a juvenile. The fees to
be charged for each trip will depend on the costs incurred by Community Corrections.
Community Corrections agrees to notify each Law Enforcement entity of the number of
juveniles transported each month on their behalf. The cost per trip (i.e. the rate structure for
transports) will initially be set as indicated on the transport fee schedule listed below and will
be effective for transports made starting January 1, 2013. Community Corrections will bill
each Law Enforcement entity monthly for transports made during the preceding month and
will include the dates of transports, destinations, and juveniles’ names (and birth-dates where
possible). Each year no later than June 30, the County will communicate in writing to Law
Enforcement the transportation rates that will be effective for the next calendar year, which
transportation rates will be based on Community Corrections actual costs of the current year
and the projected costs of the next year.
Standard Transport Fee Schedule for Calendar Year 2013.
Law Enforcement Entity Emergency Transport 1st Court Return
Fort Collins PS, Loveland PD,
Berthoud PD
$464 Included
Colo. State Patrol, Estes PD,
Colo. State Univ.
$464 unless LE does
transport
$126 if LE performs the
emergency transport,
otherwise included
Fees are based on each juvenile transported. Special rates apply for emergency transports of
more than one juvenile in the same vehicle at the same time for the same Law Enforcement
agency: $338 for 1st juvenile, $100 for each additional juvenile and $126 for each 1st court
return; for example for 2 juveniles transported at the same time for the same Law
Enforcement agency the total fee would be $690 instead of $928.
13. Effective Date
This Agreement will be effective January 1, 2013 and shall continue for one (1) year until
December 31, 2013, unless terminated as provided for in paragraph 14 or 20, or amended as
provided for in paragraph 22. This agreement automatically renews each year until
December 31, 2017 unless modified by the parties in writing or earlier terminated pursuant to
Paragraph 14.
14. Termination
Any party may terminate their participation in this agreement for any reason by providing
written notice to all other parties at least sixty (60) days prior to January 1st of each year.
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15. Records
The County shall keep for a period of no less than three (3) years records sufficient to
accurately document operating costs for The Hub, payments received from Law
Enforcement, total number of youth served, number of youth served on behalf of each party,
number of youth transported on behalf of each party, date of transport and return, and place
to which transported. The County shall allow any of the parties to inspect and/or copy such
records upon reasonable notice.
16. Notices
All notices should be sent to the parties and addresses below:
To Larimer County: To Larimer County:
The Hub – CYF Division Community Corrections
Angela Mead Joseph Ferrando
2555 Midpoint Drive, Suite F 2255 Midpoint Drive
Fort Collins, CO 80525 Fort Collins, CO 80525
To Fort Collins: To Fort Collins:
City Manager- Darin Atteberry Chief of Police John Hutto
P.O. Box 580 P.O. Box 580
Fort Collins, CO 80522-0580 Fort Collins, CO 80522-0580
To Loveland: To Loveland:
City Manager-Bill Cahill Chief of Police Luke Hecker
500 East Third Street Suite 300 810 E 10th St, Suite 100
Loveland, CO 80537 Loveland, CO 80537
To Berthoud:
Chief of Police-Chief Glenn Johnson
328 Massachusetts Avenue
P.O. Box 1229
Berthoud, CO 80513
To Larimer County Sheriff:
Sheriff Justin Smith
2501 Midpoint Drive
Fort Collins, CO 80525
To Estes Park:
Chief Wes Kufeld
170 McGregor Ave
P.O. Box 1287
Town of Estes Park Police Department
Estes Park, CO 80517
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To Colorado State University:
Chief Wendy Rich-Goldschmidt
Colorado State University Police Department
Fort Collins, CO 80525-6023
To Colorado State Patrol:
Captain Rob Marone
Colorado State Patrol
3832 S. I-25
Fort Collins, CO 80525
17. Default
If a party fails or refused to perform according to the terms of this Agreement, such party
may be declared in default. In the event that a party is declared to be in default and given
written notice, such defaulting party shall be allowed a period of ten days after the written
notice within which to cure said default. In the event the default remains uncorrected, the
party declaring default may seek damages or avail itself of any other remedy at law or equity.
18. Assignment/No Third Party Beneficiaries
No party shall assign, transfer or otherwise convey any of its interest, rights or obligations in
this Agreement without the written consent of the other parties. This agreement is made for
the sole and exclusive benefit of the parties hereto and shall not be construed to be an
agreement for the benefit of any third party or parties and no third party shall have a right of
action hereunder for any cause whatsoever.
19. Governing Law and Governmental Immunity
This Agreement shall be governed by, and construed in accordance with the laws of the State
of Colorado. No term or condition in this agreement shall be deemed a waiver of any
provision of the Colorado Governmental Immunity Act for any party.
20. Annual Appropriation
The parties acknowledge that the operation of The Hub by the County and the obligation of
Law Enforcement to contribute to operating costs and pay transport fees are subject to each
party’s annual budgeting and appropriation of funds to operate The Hub and provide or pay
for transport. The County may discontinue such services and terminate this Agreement if it
does not have sufficient funds. If the Law Enforcement parties do not budget and appropriate
sufficient funds to contribute to operating costs and transport fees, this Agreement will
terminate as to that entity. Upon such termination, the County shall be paid for services
rendered to such entity prior to the date of termination, and shall have no obligation to further
provide services to that entity’s youth.
7
21. Severability
All portions of this Agreement are severable. If one or more portions of this Agreement are
found to be unlawful, against public policy or unenforceable, the remaining portions of this
Agreement shall be unaffected and remain in full force and effect.
22. Amendment
This Agreement may be amended upon agreement of the parties, provided such amendment
is in writing and signed by all parties or the parties to which the amendment applies.
23. Entire Agreement
This Agreement states the entire agreement of the parties and all prior oral or written
representations or agreements between the parties are merged into and superseded by the
express terms of this Agreement.
The rest of this page is left blank on purpose.
8
24. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
For Larimer County
By:
Approved as to Form: Linda Hoffmann, County Manager
Date:
Senior County Attorney
By: ___________________________
Ginny Riley, Director
Department of Human Services
Date: __________________________
By: ____________________________
Joe Ferrando, Director
Community Corrections
Date: __________________________
9
25. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
The City of Fort Collins, Colorado
A Municipal Corporation
Approved as to Form:
By:
Darin Atteberry, City Manager
City Attorney’s Office
Date:
10
26. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
The City of Loveland, Colorado
A Municipal Corporation
Approved as to Form:
By:
William Cahill, City Manager
City Attorney’s Office
Date:
11
27. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
The Town of Estes Park
Approved as to Form:
By:
Date:
12
28. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
Colorado State University, Colorado
Approved as to Form:
By:
Colorado State University Official
Date:
13
29. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
Larimer County Sheriff, Colorado
By:
Date:
14
30. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
Colorado State Patrol
Approved as to Form:
By:
Colorado State Patrol Official
Date:
15
31. Counterpart Signatures
The parties agree that counterpart signatures (each party will have a separate signature page)
of this Agreement shall be acceptable and that execution of the Agreement in the same form
by each and every party shall be deemed to constitute full and final execution of the
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by the
parties’ duly authorized representatives as set forth below.
The Town of Berthoud, Colorado
By:
Date:
16
COLORADO STATE UNIVERSITY ADDENDUM TO
2013 INTERGOVERNEMENTAL AGREEMENT
CONCERNING LARIMER COUNTY JUVENILE ASSESSMENT CENTER AKA THE HUB
AND JUVENILE TRANSPORT SERVICES
THIS ADDENDUM concerning the above-titled Intergovernmental Agreement (“the
Agreement”) is entered into by and between the Parties named in the Agreement, effective as of
the date that Colorado State University Police Department, acting by its authorized
representatives, executes the Agreement.
1. Payment pursuant to this contract shall be made as earned, in whole or in part, from available
state funds in an amount not to exceed the amount of funds available for each fiscal year this
contract is in effect. The funds that are available for each fiscal year may be used to pay
multiple contractors for the services that are described in this contract. The liability of the
State, at any time, for such payments shall be limited to the unexpended amount remaining of
such funds.
2. The Colorado Special Provisions are required to be incorporated into and made a part of
every fiscal contract of the State of Colorado and its agencies and institutions of higher
education, and are hereby so incorporated as set forth below. In the event of any conflict
between anything contained in the Agreement, and anything contained in the Special
Provisions, the Special Provisions shall always control the fiscal obligations of Colorado
State University.
SPECIAL PROVISIONS
The Special Provisions apply to all contracts except where noted in italics.
1. CONTROLLER’S APPROVAL. CRS §24-30-202(1). This contract shall not be valid until
it has been approved by the Colorado State Controller or designee.
2. FUND AVAILABILITY. CRS §24-30-202(5.5). Financial obligations of the State payable
after the current fiscal year are contingent upon funds for that purpose being appropriated,
budgeted, and otherwise made available.
3. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed
or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits,
protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24-10-
101 et seq., or the Federal Tort Claims Act, 28 U.S.C. §§1346(b) and 2671 et seq., as
applicable now or hereafter amended.
4. INDEPENDENT CONTRACTOR. 4 CCR 801-1. Contractor shall perform its duties
hereunder as an independent contractor and not as an employee. Neither Contractor nor any
agent or employee of Contractor shall be deemed to be an agent or employee of the State.
Contractor and its employees and agents are not entitled to unemployment insurance benefits
through the State and the State shall not pay for or otherwise provide such coverage for
Contractor or any of its agents or employees. Unemployment insurance benefits will be
available to Contractor and its employees and agents only if such coverage is made available
by Contractor or a third party. Contractor shall pay when due all applicable employment
taxes and income taxes and local head taxes incurred pursuant to this contract.
RECORD OF PROCEEDINGS
Regular Meeting of the Estes Valley Planning Commission
March 19, 2013 ‐ 1:30 p.m.
Board Room, Estes Park Town Hall
Commission: Chair John Tucker, Commissioners Doug Klink, Betty Hull, Joe Wise, Kathy
Bowers, Nancy Hills, Steve Murphree
Attending: Chair Tucker, Commissioners Klink, Hull, Wise, Bowers, and Murphree
Also Attending: Director Chilcott, Planner Shirk, Code Compliance Officer/Planner Kleisler, Town
Attorney White, and Recording Secretary Thompson
Absent: Commissioner Hills, Town Board Liaison Elrod
The following minutes reflect the order of the agenda and not necessarily the chronological sequence.
Chair Tucker called the meeting to order at 1:30 p.m. There were approximately 20 people in
attendance.
1. PUBLIC COMMENT
Greg Rosener, representative from the Estes Valley Economic Development Task Force, gave a
brief overview of the history and goals of the task force. He stated there were no plans to change
the economic base of the Estes Valley (tourism and retirement community), but they would be
addressing retention of existing businesses and business recruitment. He stated the recruitment
would probably not include big box retail businesses.
2. CONSENT AGENDA
A. Approval of minutes, January 15, 2013 Planning Commission meeting.
It was moved and seconded (Hull/Bowers) to approve the consent agenda as presented and the
motion passed unanimously.
3. SPECIAL REVIEW 2013‐01, Open Air Adventure Park, Lot 4, Prospect Village Subdivision, 470
Prospect Village Drive
Senior Planner Shirk reviewed the staff report, stating Planning Commission would be the
recommending body for this application, with the Town Board making the final decision. The
proposed Open Air Adventure Park would be located on the northwest corner of Riverside Drive
and Prospect Village Drive (adjacent to and south of the Estes Park Brewery). The property owner,
Sherri Rodgers, has leased the property to Tim Kreutzer to develop an outdoor challenge course,
similar to a high‐ropes course. The course would consist of a series of raised platforms connected
by various ropes challenges. A small office building, 18‐space paved parking lot, sidewalks
(perimeter and internal), and landscaping would complete the project. The property is zoned CO–
Commercial Outlying, and is undersized for this zone district. Planner Shirk stated there are minor
groundwater issues on the lot, and this type of proposed use would not be affected by those
issues. He stated the applicant requested a modification to the Estes Valley Development Code
(EVDC) parking lot standards due to the lot size. The 18‐space parking area will be as far away as
possible from Riverside Drive, but the standard of 150 feet from the intersection could not be met
because the property is only 90‐feet deep. The Public Works Department expressed concern
about the design of the parking area, stating vehicles may have difficulty leaving the parking lot
without backing into a public right‐of‐way. An additional request for modification from the EVDC
involved placing the front door of the office building towards the parking lot instead of the
required orientation to the front property line. The applicant would install sidewalk and landscape
buffer along Riverside Drive, as well as internal sidewalks on the property. The applicant has
indicated there would be a maximum of 50 people on site at any given time. Hours of operation
would not be earlier than 9:00 a.m. or later than 6:30 p.m. The planned absence of exterior
lighting would limit the operation to daylight hours. Planner Shirk stated neighbors were initially
concerned about nighttime lighting. One neighbor commented this development would have less
noise impact than the nearby go‐cart track. Planner Shirk shared another concern expressed by
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 2
March 19, 2013
the Public Works Department involving stormwater flow. It has been determined the issue would
be addressed at the construction stage.
Staff recommends approval with the following findings and conditions:
Staff Findings
1. With the exception of the requested minor modifications (building entrance location,
driveway spacing), the development plan complies with applicable standards set forth in the
EVDC (§3.8.D).
2. The development plan is consistent with the policies, goals and objectives of the
Comprehensive Plan (§3.8.D).
3. The application for the proposed special review use mitigates, to the maximum extent
feasible, potential adverse impacts on nearby land use, public facilities and services, and the
environment (§3.5B). For example, business hours would end in the early evening, which
means there would be no exterior lighting.
4. The requested modifications advance the goals and purposes of the EVDC and either results in
less visual impact or more effective environmental or open space preservation, or relieves
practical difficulties in developing a site (§3.7.A.2.b). For example, the lot is not big enough to
allow for compliance with the 150‐foot driveway spacing requirement and the property could
not be developed without a modification to this waiver.
5. This is a Planning Commission recommendation to the Town Board of the Town of Estes Park.
6. In accordance with §3.2.D.2, ‘a revised application shall be a condition precedent to placing
the application on the Board’s agenda.’ The required revisions are due within thirty days of
Planning Commission recommendation.
Suggested Conditions of Approval
1. Compliance with affected agency memos:
a. Estes Valley Fire Protection District memo dated February 12, 2013
b. Water Department (Jeff Boles) memo dated February 21, 2013
c. Public Works (Kevin Ash) email dated February 22, 2013 (Note: the recommendation of
denial has been retracted based on revised plans submitted March 13, 2013)
d. Planning Division (Dave Shirk) Development Code Analysis dated March 14, 2013
2. Submittal of a revised development plan addressing the following:
a. Correct the Planning Commissioner Chair signature block (John Tucker is Chair)
b. Remove concrete sidewalk cross section, trail cross‐section, detention cross‐section, cross
pan cross‐section, sign details, and curb/gutter details. These items were necessary during
initial review, but now should be removed from the development plan and shown on the
construction plans.
c. Sidewalk widths must be eight (8) feet wide, and all sidewalks are to be hard‐surfaced.
d. Parking lot design shall be modified to ensure vehicles to not have to back into public
right‐of‐way.
Public Comment
Tim Kreutzer/applicant explained the proposed adventure park would be an individual,
recreational ropes course experience. The twelve poles would be 30 feet high, with platforms for
guests to rest between maneuvers. The area would contain 40 different elements for guests to
attempt, with varying degrees of difficulty. Mr. Kreutzer stated noise was not typically an issue at
this type of facility, and he was excited to bring something new to Estes Park. Customers would
be limited to those eight years of age and older, and those less than five feet tall would need a
taller individual to assist with clipping on to the ropes. Access will be locked off when the business
is closed.
David Bangs/project manager with Van Horn Engineering stated he completed the site work,
design, layout, stormwater design, and traffic study. Any questions pertaining to those areas
should be directed to him. He thanked staff for their cooperation in getting through the
application process quickly. He is still working on revising the parking area to allow a turnaround
area.
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 3
March 19, 2013
Staff and Commission Discussion
None.
It was moved and seconded (Wise/Murphree) to recommend Approval to the Town Board for
Special Review 2013‐01, Open Air Adventure Park, with the findings and conditions
recommended by staff, and the motion passed unanimously with one absent.
4. SPECIAL REVIEW 2013‐02, Elkhorn Tubing Hill, All of Elkhorn Addition (Less Elkhorn Plaza
Lodges, less a portion of a metes & bounds parcel)
Planner Shirk reviewed the staff report. He stated the Planning Commission would be the
recommending body, with the Town Board making the final decision on the application. The
property owner is Zahourek Conservatory, and the applicant is Frank Theis with CMS Planning.
Planner Shirk stated the request was to construct a year‐round tubing hill using an artificial
surface and hard‐bottomed tubes designed to slide on that surface. The applicant has stated the
operation would only be open during daylight hours. Planner Shirk explained the location of the
tubing hill would be west of the Elkhorn Lodge, nestled between the lodge and a proposed
smaller horse corral than what currently exists. A surface lift, AKA Magic Carpet, would take
customers to the top of the hill. This lift would be slightly elevated from grade.
Planner Shirk explained the Elkhorn Lodge was developed prior to any zoning regulations being in
place. The lot is non‐conforming to many development standards. Examples include but are not
limited to: unpaved parking, development in river setback, horses without permits, unpermitted
livestock such as pigs, roosters and donkeys, exterior lighting, and ADA accessibility. Additionally,
the property is out of compliance with the Estes Park Municipal Code prohibition of keeping of
waste materials. Examples include multiple piles of horse manure and areas of concentrated
waste accumulation, such as near the top of the proposed tubing hill. This development plan
could be a phase toward compliance with the current Estes Valley Development Code. Staff found
if the following issues were successfully addressed, the proposed use and development would be
a move toward overall conformity and would comply with Section 6.4.D of the Estes Valley
Development Code (EVDC): 1) The horse corral east of the horse barn was removed from the
floodplain, and the area successfully revegetated, 2) The number of horses and area of the horse
corral was reduced, 3) Waste accumulation and junk vehicles removed, and 4) Incremental move
toward animal‐resistant trash enclosures.
Planner Shirk stated the applicant has requested waivers to the following EVDC standards: 1)
Section 7.5 Landscaping, with the pertinent issues being district buffer screening for the
residential properties to the west and northwest of this commercially zoned property. A
determine needs to be made as to whether the existing landscaping and topography is adequate
to provide the required screening; 2) Section 7.11 Off‐Street Parking and Loading Standards,
specifically paving requirements and curbing around the perimeter of the parking lot; and 3)
Appendix D.III.B.9 regarding paving of parking lots and paving/curbing of driveways serving more
than eight parking spaces. Planner Shirk stated the Statement of Intent did not mention a waiver
to the paving of pedestrian walkways. Sidewalks from the parking area to the tubing hill were not
shown on the submitted site plan, and are listed below as a condition of approval.
Planner Shirk stated the application was routed to affected agencies and adjacent property
owners. The Public Works Department commented on drainage, requesting additional
information as to the direction of drainage at the bottom of the site. They deferred their traffic
concerns to the Colorado Department of Transportation, who controls West Elkhorn Avenue.
Director Chilcott stated the Elkhorn Lodge property is unique, and staff has worked with the
applicant to make some improvements to the proposed site, while not requiring extensive
improvements to the remainder of the property. It has been a balancing act and a joint effort
between the applicant and the various affected agencies. Planner Shirk stated the Larimer
County Health Department would need to verify the allowance of port‐o‐lets.
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 4
March 19, 2013
Staff Findings
The development does not comply with applicable standards set forth in the EVDC (§3.8.D). Areas
of non‐compliance are outlined in the Findings of Compliance with EVDC memo dated February
22, 2013. This includes adequate public facilities such as drainage and pedestrian access.
1. The development plan is consistent with the policies, goals and objectives of the
Comprehensive Plan (§3.8.D).
2. The application for the proposed special review use mitigates, to the maximum extent
feasible, potential adverse impacts on nearby land use, public facilities and services, and the
environment (§3.5.B). For example, business hours would end in the early evening.
3. It is incumbent upon the applicant to demonstrate the requested modifications advance the
goals and purposes of the EVDC and either results in less visual impact or more effective
environmental or open space preservation, or relieves practical difficulties in developing a site
(§3.7.A.2.b).
4. The tubing hill is a change to the existing nonconforming use. If the conditions recommended
by staff regarding (1) river restoration, (2) reduction in number of horses to no more than
twenty, (3) removal of trash and debris, and (4) move toward animal‐resistant trash
enclosures are met, the change of use would comply with §6.4 Change of Use.
5. This is a Planning Commission recommendation to the Town Board of Trustees of the Town of
Estes Park.
6. In accordance with §3.2.D.2, ‘a revised application shall be a condition precedent to placing
the application on the Board’s agenda.’ The required revisions are due within thirty (30) days
of Planning Commission recommendation.
Suggested Conditions of Approval
1. Prior to final approval of the Special Review Use, Applicant shall:
a. Demonstrate compliance with §7.08 Livestock of the Estes Park Municipal Code (per Town
Board finding, up to twenty horses allowed).
b. Demonstrate compliance with the Larimer County Health code regarding port‐o‐lets.
c. Demonstrate compliance with CDOT requirements. This may require a new access permit.
2. Compliance with affected agency memos:
a. Estes Valley Fire Protection District memo, February 12, 2013.
b. Water Department (Jeff Boles) memo, February 21, 2013.
3. Submittal of a revised development plan addressing the following:
a. Restoration of the floodplain.
b. Outline area of horse operations and number of horses (not to exceed twenty).
c. Areas of trash accumulation to be removed, with note to be completed prior to operation
of tubing hill.
d. Animal‐resistant trash enclosures: outline where existing trash collection is, what areas
will be converted to animal‐resistant enclosures (and how), and what trash collection will
remain unchanged.
e. Compliance with the Estes Valley Development Code, including but not limited to §7.12.F
‘Drainage’, §7.12.H ‘Transportation’, and sections regarding pedestrian access, including
ADA access.
Planner Shirk stated staff was recommending approval. Staff recognizes the property is distressed,
and clean‐up of the property would be a condition of approval. A time frame for compliance would
be necessary to ensure the clean‐up occurs in a timely manner.
Commissioner Hull suggested requiring a Development Agreement between the Town, the property
owner, and the Lessee concerning clean‐up of the property. Town Attorney White stated, depending
on the complexity of the compliance issues, a Development Agreement may be a good idea.
Public Comment
Frank Theis/applicant and property owner representative briefly reviewed the past history of
proposed improvement to the Elkhorn Lodge property. He stated the owners were willing to pursue
the year‐round tubing hill, knowing funds would need to be allocated to cleaning up the property.
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 5
March 19, 2013
Mr. Theis stated the existing bath house has adequate restroom facilities for the proposed tubing hill,
and the horse operation may have a port‐o‐let. He stated the horse operation was a completely
separate business from the tubing hill, in terms of management. If a Development Agreement was
drawn up, he would like to review the draft version prior to any parties entering into the agreement.
Todd Jirsa/partner in the tubing hill operations stated a “magic carpet” lift would be installed to
transfer customers and inflatable tubes up the hill. Storage of the tubes was planned for the ticketing
building. He addressed concerns about noise, stating the closest house was 425 feet away. He stated
the existing trees and a rock ridge would create a natural sound barrier, and distance between the
proposed tubing hill and the neighbors would reduce the noise level. He stated the plan included
purchasing 70 tubes for customer use. Mr. Jirsa stated it would take two full months to get the
property in proper condition for installation of the tubing hill, and six to seven weeks for the delivery
of the equipment once it was ordered. Mr. Theis would coordinate the clean‐up effort, while Mr. Jirsa
would manage the tubing hill. It was understood the area would need to be cleaned prior to the
installation of the equipment.
John Spahnle/adjacent property owner stated the property in its existing state was blighted. He was
concerned about the public safety of the area, handicap accessibility (federal regulations, not the
development code), and a would suggest a health department inspection (the Planning Commission
cannot direct this inspection).
Marie Steinbrecher/adjacent property owner stated the proposed tubing hill would be two hundred
feet from her bedroom window. She was opposed to the project and the noise it would create. She
stated the property could be developed with the support of the neighbors, with a different use.
Winnie Spahnle/adjacent property owner was concerned about irrigation of the proposed vegetation
and a possible decrease in property values in the surrounding neighborhood. She stated the proposed
tubing hill was not an appropriate activity for the historic property. She was opposed to the project.
Edward O’Farrell/adjacent property owner was opposed to the project. He stated noise was a current
issue, which would get worse if the project was approved. He was also concerned about the condition
of the ticketing building.
Bonnie Watson/adjacent property owner was concerned about the potential noise and existing
blight. Director Chilcott pointed out that there are zoning code compliance issues; however, the Town
has not adopted the Property Maintenance Code for existing buildings, and some of the
nonconforming issues are legal. Ms. Watson was also concerned about an adequate number of
restrooms.
Aileen Allbritten/adjacent property owner was concerned about the quality of life in the
neighborhood, as well as fire danger and the detrimental impact to wildlife in the area.
Curt Gleaves/town resident agreed the property was blighted. He stated the applicant has the
potential to bring some value to the property that might assist with obtaining historical preservation.
Mr. Gleaves visited the tubing hill at Keystone and did not think noise was an issue.
Staff and Commission Discussion
Comments from the Commissioners included, but were not limited to: Noise may be an issue,
landscaping and buffering would be essential; opposed to landscaping and buffering waivers; parking
needs to be configured and graveled. Planner Shirk stated the daytime decibel levels from the
property line are 60 db, while the nighttime levels are 55 db. There was discussion as to whether or
not the noise from the tubing hill operation would comply with the local noise ordinance.
Planner Shirk stated the horses on the property were an allowed use, as was the proposed tubing hill.
Both would fall under the ‘commercial outdoor entertainment’ section of the EVDC. Although both
uses are allowed, the proposed tubing hill is considered a change of use. Therefore, the Planning
Commission needs to determine if the reduction of the horse use and change of use to the tubing hill
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 6
March 19, 2013
is phasing towards bringing the property into compliance with the EVDC. The Special Review process
requires the use mitigates, to the maximum extent feasible, potential adverse impacts on nearby land
uses, public facilities and services, and the environment. For example, a noise study could be
requested to determine potential noise levels; more information concerning landscaping could be
requested, etc. The Special Review use has some subjectivity that could be considered prior to
approval or denial.
Commissioner Wise stated he was not prepared to make a decision without more information
concerning the potential noise from the operation. He supported improvement of the property, but
not at the expense of the adjacent property owners. He suggested requesting a noise study. Lonnie
Sheldon/Van Horn Engineering stated an option for the applicant would be setting up a noise
measuring device near the tubing hill in Frisco to determine the decibel level for their tubing hill.
Director Chilcott stated the submittal of a noise study could be listed as a condition of approval.
Discussion occurred among staff and the Commissioners concerning a continuance of the application.
Mr. Theis stated he would support a continuance. Comments included, but were not limited to; 1) A
continuance would allow time for staff and Town Attorney White to draft a development agreement,
which should address the drainage issue at the bottom of the property; 2) Allow time for a noise
study to be conducted and submitted. If the decibel level at the property line is in excess of what is
allowed by code, then the applicant would need to present a proposal to abate the noise. 3)
Anticipated comments from CDOT would be received before the next meeting, and 4) Time is of the
essence, as the summer season is quickly approaching. Mr. Jirsa was opposed to a continuance, and
also to the request for a noise study. Town Attorney White stated there was no requirement for the
applicant to agree with a continuance.
It was moved and seconded (Klink/Murphree) to recommend approval to the Town Board
with the findings and conditions recommended by staff, including additional conditions to submit a
drainage plan to the Public Works Department for review and approval, and a time frame plan for
compliance to be documented with a development agreement with the Town of Estes Park. The
development agreement shall be recorded prior to site work on the project.
The motion failed (3‐2‐1) with Commissioners Klink and Murphree voting in favor, Commissioners
Bowers, Hull, and Tucker voting against, Commissioner Wise abstaining, and one absent (Hills).
5. REPORTS
1. Pre‐Applications
Planner Shirk reported staff is expecting an application to redevelop the former Telemark
property with the Mountain River Townhomes. The Stanley Park Stall Barns and Multi‐
Purpose Event Center construction plans have been submitted and the building permit is
being finalized.
2. Planner Shirk reported there have been no variance requests submitted.
3. Planner Shirk reported the Town Board approved the Solitude and Stanley Avenue
Condominium Supplemental Maps. The Town Board denied the rezoning request for the Witt
Subdivision. Director Chilcott reported the Trustees commented they take the Planning
Commission’s recommendations very seriously, and would be hard‐pressed to overturn a
Planning Commission recommendation.
4. Attorney White reported the Town Board granted an option to EPIC to exercise the purchase
of a portion of the Town’s Riverside Parking Lot. For the project to move forward, there are a
series of contingencies that would need to take place, including a Special Review of the entire
project to be heard by the Planning Commission.
5. Planner Shirk reported the Board of County Commissioners approved the Kenwood Industrial
Park, and the applicant is close to completing construction plans. The County Commissioners
approved the Sign Code waiver for a new ranch‐style sign at the entrance to the YMCA.
6. Director Chilcott reported there will be two meetings facilitated by Lyn Pollard on Enhancing
Code Compliance Services. The meetings will be held March 28th and April 2nd. There will also
be an educational forum on April 17th titled “Public Participation in Development Review.”
RECORD OF PROCEEDINGS
Estes Valley Planning Commission 7
March 19, 2013
7. Director Chilcott reported the recent census data indicating the median age in the Estes Valley
is increasing significantly. She complimented Partners for Commerce for their document “The
Path Forward”, and hopes to be able to use some of the information in the update of the
Estes Valley Comprehensive Plan.
There being no further business, Chair Tucker adjourned the meeting at 4:25 p.m.
___________________________________
John Tucker, Chair
___________________________________
Karen Thompson, Recording Secretary
RESOLUTION #06-13
BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES
PARK, COLORADO:
That the filing date of the application for a New TAVERN Liquor License, filed by
M & S, Inc., dba RUDY’S AT ESTES, 165 Virginia Drive, Estes Park, Colorado, is April 4,
2013.
It is hereby ordered that a public hearing on said application shall be held in the Board
Room of the Municipal Building, 170 MacGregor Avenue, on Tuesday, May 14, 2013, at 7:00
P.M., and that the neighborhood boundaries for the purpose of said application and hearing
shall be the area included within a radius of 2.9 miles, as measured from the center of the
applicant's property.
DATED this 23rd day of April, 2013.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
RESOLUTION NO. 07-13
BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES
PARK, COLORADO:
That the Board of Trustees of the Town of Estes Park, Colorado, in accordance
with Section 31-12-107, C.R.S., hereby states its intention to annex the area described
herein. The Board of Trustees finds and determines that the Petition filed with the Town
Clerk requesting annexation of the area described herein is in substantial compliance with
Section 31-12-107(1)(g), C.R.S. The Board of Trustees further finds and determines that
the Petition is signed by persons comprising one hundred percent (100%) of the
landowners in the area proposed to be annexed and owning one hundred percent (100%)
of the area, excluding public streets and alleys, and any land owned by the annexing
municipality. Such area, if annexed, will be known as “FALL RIVER ADDITION 12, 13,
14, 15, 16, 17 18 AND 19” to the Town of Estes Park, Colorado. Such area is described
as follows:
LEGAL DESCRIPTION FOR FALL RIVER TWELFTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE POINT OF COMMENCEMENT, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH 00°37'00" EAST A DISTANCE
OF 260.0 FEET TO A #5 REBAR WITH A 1.5" ALUMINUM CAP MARKED LS 29415
ON THE SOUTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD AS DESCRIBED
IN BOOK 914 AT PAGE 213 DATED 6/26/1951, SAID POINT BEING THE TRUE
POINT OF BEGINNING; THENCE NORTH 0°37'00" EAST 60.95 FEET TO A POINT
ON THE NORTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD; THENCE
SOUTH 79°18'00" EAST 172.47 FEET ALONG SAID NORTHERLY RIGHT OF WAY;
THENCE SOUTH 80°20'47" WEST 172.51 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINS 5,172.19 SQUARE FEET (0.12 ACRES) MORE OR LESS,
AND IS SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF
RECORD, COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER THIRTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE POINT OF COMMENCEMENT, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH 00°37'00" EAST A DISTANCE
OF 260.0 FEET TO A #5 REBAR WITH A 1.5" ALUMINUM CAP MARKED LS 29415
ON THE SOUTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD AS DESCRIBED
IN BOOK 914 AT PAGE 213 DATED 6/26/1951, SAID POINT BEING THE TRUE
POINT OF BEGINNING; THENCE NORTH 80°20'47" EAST 172.51 FEET TO A POINT
ON THE NORTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD; THENCE
SOUTH 79°18'00" EAST 310.32 FEET ALONG SAID NORTHERLY RIGHT OF WAY;
THENCE NORTH 86°32'37" WEST 475.91 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINS 9,309.65 SQUARE FEET (0.21 ACRES) MORE OR LESS,
AND IS SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF
RECORD, COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER FOURTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS: COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE
NORTHWEST CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF
SECTION 16, T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL
PARK, SAID POINT BEING THE POINT OF COMMENCEMENT, WITH ALL
BEARINGS RELATIVE TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4
ASSUMED AS BEARING SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A
2.5" BRASS CAPPED PIPE MARKING THE SOUTHWEST CORNER OF THE SAID
SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH
00°37'00" EAST A DISTANCE OF 260.0 FEET TO A #5 REBAR WITH A 1.5"
ALUMINUM CAP MARKED LS 29415 ON THE SOUTHERLY RIGHT OF WAY OF
FISH HATCHERY ROAD AS DESCRIBED IN BOOK 914 AT PAGE 213 DATED
6/26/1951, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH
86°32'37" EAST 475.91 FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY
OF FISH HATCHERY ROAD; THENCE SOUTH 79°18'00" EAST 103.70 FEET ALONG
SAID RIGHT OF WAY; THENCE NORTH 80°55'00" EAST 309.19 FEET ALONG SAID
RIGHT OF WAY; THENCE SOUTH 79°10'47" WEST 460.25 FEET TO A POINT ON
THE SOUTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD; THENCE NORTH
81°02'00" WEST 273.82 FEET ALONG SAID RIGHT OF WAY; THENCE NORTH
79°18'00" WEST 576.66 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINS 43,139.80 SQUARE FEET (0.99 ACRES) MORE OR LESS,
AND IS SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF
RECORD, COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER FIFTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, AND A PORTION OF
THE NORTHEAST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 16, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE POINT OF COMMENCEMENT, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH 00°37'00" EAST A DISTANCE
OF 260.0 FEET TO A #5 REBAR WITH A 1.5" ALUMINUM CAP MARKED LS 29415
ON THE SOUTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD AS DESCRIBED
IN BOOK 914 AT PAGE 213 DATED 6/26/1951; THENCE SOUTH 79°18'00" EAST
576.66 FEET ALONG SAID RIGHT OF WAY; THENCE SOUTH 81°02'00" EAST
273.82 FEET TO A POINT ON SAID SOUTHERLY RIGHT OF WAY. SAID POINT
BEING THE TRUE POINT OF BEGINNING; THENCE NORTH 79°10'47" EAST 460.25
FEET TO A POINT ON THE NORTHERLY RIGHT OF WAY OF FISH HATCHERY
ROAD; THENCE NORTH 88°22'00" EAST 548.63 FEET ALONG SAID RIGHT OF
WAY; THENCE SOUTH 01°35'20" EAST 60 FEET TO A POINT ON THE SOUTHERLY
RIGHT OF WAY OF FISH HATCHERY ROAD; THENCE SOUTH 88°22'00" WEST
544.67 FEET ALONG SAID RIGHT OF WAY; THENCE SOUTH 80°55'00" WEST
314.81 FEET ALONG SAID RIGHT OF WAY; THENCE NORTH 81°02'07" WEST
148.63 FEET TO THE POINT OF BEGINNING.
SAID TRACT CONTAINS 53,821.41 SQUARE FEET (1.24 ACRES) MORE OR LESS,
AND IS SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF
RECORD, COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER SIXTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4
AND THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16, T5N, R73W
OF THE 6TH PRIME MERIDIAN, COUNTY OF LARIMER, STATE OF COLORADO,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE TRUE POINT OF BEGINNING, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH 00°37'00" EAST A DISTANCE
OF 260.0 FEET TO A #5 REBAR WITH A 1.5" ALUMINUM CAP MARKED LS 29415
ON THE SOUTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD AS DESCRIBED
IN BOOK 914 AT PAGE 213 DATED 6/26/1951; THENCE SOUTH 79°18'00" EAST
576.66 FEET ALONG SAID RIGHT OF WAY; THENCE SOUTH 81°02'00" EAST
273.82 FEET TO A POINT ON SAID SOUTHERLY RIGHT OF WAY; THENCE SOUTH
00°09'41" WEST 102.78' LEAVING SAID RIGHT OF WAY TO A #5 REBAR WITH 1.5"
ALUMINUM CAP MARKED LS 29415 ON THE NORTHERLY SECTION LINE
SEPARATING THE NORTHWEST 1/4 OF THE SOUTHEAST 1/4 AND THE SOUTH
WEST 1/4 OF THE SOUTHEAST 1/4 OF SAID SECTION 16; THENCE NORTH
89°29'27" EAST 457.24 FEET TO A 2.5" BRASS CAP ON A 1" PIPE MARKING THE
NORTHWEST CORNER OF SOUTHWEST 1/4 OF SOUTHEAST 1/4 OF SAID
SECTION 16; THENCE SOUTH 00°58'53" WEST 10' FEET TO A POINT ON THE
EASTERLY SECTION LINE OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF
SAID SECTION 16; THENCE SOUTH 89°29'27" WEST 1296.89 FEET TO A POINT
ON THE EASTERN SECTION LINE OF SAID SOUTHWEST 1/4; THENCE NORTH
00°37'00" EAST 10 FEET TO THE TRUE POINT OF BEGINNING.
SAID TRACT CONTAINS 162,760.27 SF (3.74 ACRES) MORE OR LESS, AND IS
SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF RECORD,
COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER SEVENTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE SOUTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE POINT OF COMMENCEMENT, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE SOUTH 00°37'00" WEST A DISTANCE
OF 10 FEET TO A POINT ON THE WESTERLY SECTION LINE OF SAID
SOUTHWEST 1/4, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE
NORTH 89°29'27" EAST 1296.89 FEET TO A 2.5" BRASS CAP ON A 1" PIPE
MARKING THE NORTHEAST CORNER OF SAID SOUTHWEST 1/4 OF THE SOUTH
EAST 1/4; THENCE SOUTH 00°58'53" WEST 1283.57' FEET TO A 2.5" BRASS CAP
ON A 1" PIPE MARKING THE SOUTHWEST CORNER OF SAID SOUTHWEST 1/4 OF
THE SOUTHEAST 1/4; THENCE NORTH 89°57'36" WEST 1288.94 FEET TO A 2.5"
BRASS CAP ON A 1" PIPE MARKING THE SOUTHWEST CORNER OF SAID
SOUTHWEST 1/4 OF THE SOUTHEAST 1/4; THENCE N 00°37'00" EAST 1271.04
FEET TO THE TRUE POINT OF BEGINNING.
SAID TRACT CONTAINS 1,651,108.80 SF (37.9 ACRES) MORE OR LESS, AND IS
SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF RECORD,
COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER EIGHTEENTH ANNEXATION:
A TRACT OF LAND LOCATED IN THE NORTHWEST 1/4 OF THE SOUTHWEST 1/4
OF SECTION 16, T5N, R73W OF THE 6TH PRIME MERIDIAN, COUNTY OF
LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
COMMENCING AT A 2.5" BRASS CAP ON A 1" PIPE MARKING THE NORTHWEST
CORNER OF THE SOUTHWEST 1/4 OF THE SOUTHEAST 1/4 OF SECTION 16,
T5N, R73W AND DATED 1926 BY ROCKY MOUNTAIN NATIONAL PARK, SAID
POINT BEING THE POINT OF COMMENCEMENT, WITH ALL BEARINGS RELATIVE
TO THE WESTERLY LINE OF SAID SOUTHWEST 1/4 ASSUMED AS BEARING
SOUTH 00°37'00" WEST A DISTANCE OF 1281.04 TO A 2.5" BRASS CAPPED PIPE
MARKING THE SOUTHWEST CORNER OF THE SAID SOUTHWEST 1/4 OF THE
SOUTHEAST 1/4 OF SECTION 16; THENCE NORTH 00°37'00" EAST A DISTANCE
OF 320.94 FEET ALONG SAID WESTERLY SECTION LINE TO A POINT ON THE
NORTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD AS DESCRIBED IN
BOOK 914 AT PAGE 213 DATED 6/26/1951, SAID POINT BEING THE TRUE POINT
OF BEGINNING; THENCE NORTH 00°37'00" EAST 31.25 FEET ALONG SAID
WESTERLY SECTION LINE TO A 1.5" ALUMINUM CAP ON A #5 REBAR MARKED
LS 29415; THENCE SOUTH 85°43'00" EAST 288.43' FEET #4 REBAR WITH YELLOW
PLASTIC CAP MARKED LS 26974; THENCE SOUTH 35°29'00" WEST 69.40 FEET
TO A POINT ON THE NORTHERLY RIGHT OF WAY OF FISH HATCHERY ROAD;
THENCE NORTH 79°18'00" WEST 252.12 FEET TO THE TRUE POINT OF
BEGINNING.
SAID TRACT CONTAINS 12,440.28 SF SF (8.6 ACRES) MORE OR LESS, AND IS
SUBJECT TO ALL RECORDED EASEMENTS AND RIGHTS OF WAY OF RECORD,
COUNTY OF LARIMER, STATE OF COLORADO.
LEGAL DESCRIPTION FOR FALL RIVER NINETEENTH ANNEXATION:
RIVERS EDGE CONDOMINIUMS, LOCATED IN THE SOUTHEAST 1/4 OF SECTION
16, TOWNSHIP 5 NORTH, RANGE 73 WEST, 6PM, LARIMER COUNTY, COLORADO,
RECORDED AT RECEPTION NO. 2006-0030654 DATED 4/26/2006 IN THE RECORDS
OF THE LARIMER COUNTY CLERK AND RECORDER.
SAID TRACT CONTAINS 3.505 ACRES MORE OR LESS, AND IS SUBJECT TO ALL
RECORDED EASEMENTS AND RIGHTS OF WAY OF RECORD, COUNTY OF
LARIMER, STATE OF COLORADO.
IT IS FURTHER RESOLVED, that in accordance with Section 31-12-108, C.R.S.,
the Town Board Public Hearing shall be held Tuesday, May 28, 2013 at 7:00 p.m., in
the Municipal Building, located at 170 MacGregor Ave., Estes Park, Colorado, for the
purpose of determining if the proposed annexation complies with the applicable provisions
of Sections 31-12-104 and 31-12-105, C.R.S.
IT IS FURTHER RESOLVED, that the Town Clerk shall give the notice of the
hearing as provided in Section 31-12-108(2), C.R.S.
DATED this day of , 2013.
TOWN OF ESTES PARK
Mayor
ATTEST:
Town Clerk
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Jackie Williamson, Director
Date: April 19, 2013
RE: Appointment of Daniel C. Muffly as Independent Hearing Officer –
Personnel Matter
Background:
Recently, the Town took a disciplinary action against an employee. The employee
appealed the disciplinary action to the Town Administrator, who upheld the decision.
Section O – Appeals Process of the Town’s Personnel Policy Manual provides that the
employee then has the right to appeal the Town Administrator’s decision to an
independent hearing officer appointed by the Town Board. The employee exercised
this right pursuant to the Personnel Policy Manual.
Accompanying this Memo is a biography from Daniel C. Muffly, an attorney in Fort
Collins. Mr. Muffly’s area of expertise is in the areas of employee law, civil rights,
business law, and litigation. Mr. Muffly has served as an independent hearing officer for
the Town on three previous occasions. Attorney White recommends the appointment of
Mr. Muffly as an independent hearing officer for this appeal.
Budget:
Mr. Muffly charges an hourly fee of $210.00 plus expenses, if any. It is anticipate the
cost would not exceed $2,000 depending on the length of the hearing, issues raised,
and preparation time for the hearing.
Staff Recommendation:
Staff recommends the appointment of Daniel Muffly as the independent hearing officer
for this personnel matter.
Sample Motion:
I move to approve/deny the appointment of Daniel Muffly as the independent hearing
officer for this personnel matter.
Administrative Services Memo
Page 2
PUBLIC WORKS Report
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Scott Zurn, PE, CFM, Public Works Director
Keri Kelly, Parks Division
Date: April 23, 2013
RE: America In Bloom
Background:
For the first time, Estes Park will participate in the America in Bloom program, and
community members and businesses are invited to become involved at the ground
level. America in Bloom is a non-profit, nationwide program promoting beautification
through education and community involvement, while utilizing flowers, plants, trees, and
other lifestyle enhancements. Locally known as Estes Park in Bloom, the project is a
community-wide effort involving businesses, residents and Town government.
America in Bloom is the only organization of its kind offering an award program with on-
site, one-on one mentoring and coaching by a team of expert judges. The team will be
in Estes Park July 11 and 12 and will provide the local committee with a detailed, written
evaluation following its visit. The evaluation is based upon six criteria: floral displays,
urban forestry, landscaped areas, heritage preservation, environmental efforts, and the
overall impression/cleanliness of the community. Since America in Bloom was founded
in 2001, nearly 200 cities in 40 states have participated. Our local Estes Park in Bloom
steering committee has started preparing for the judges arrival and are excited to
spread the word throughout the community.
Page 1
TOWN CLERK Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Jackie Williamson, Town Clerk
Date: April 23, 2013
RE: Liquor Licensing: New Tavern Liquor License Application for Carl Scott
dba Coffee On The Rocks, 510 Moraine Avenue
Background:
An application for a new Tavern Liquor license was filed with the Town Clerk’s office on
March 22, 2013, by Carl Scott dba Coffee On The Rocks. This application was sent to
the Liquor Division for a concurrent review in order to have the license approved by the
State at the same time as the Town. This will enable the establishment to begin the
sale of alcohol as soon as possible.
All necessary paperwork and fees were submitted and the applicant has fulfilled the
T.I.P.S. training requirement. Please see the attached hearing procedure for more
information.
Budget:
None.
Staff Recommendation:
None.
Sample Motion:
Finding.
The Board of Trustees finds that the reasonable requirements of the neighborhood
are/are not met by the present liquor outlets in the neighborhood and that the desires of
the adult inhabitants are/are not for the granting of this liquor license.
Motion.
I move to approve/deny the new Tavern Liquor License for Coffee On The Rocks.
1
July 2002
PROCEDURE FOR HEARING ON APPLICATION
NEW LIQUOR LICENSE
1. MAYOR.
The next order of business will be the public hearing on the application of Carl Scott
dba COFFEE ON THE ROCKS for a New Tavern Liquor License located at 510
Moraine Avenue.
At this hearing, the Board of Trustees shall consider the facts and evidence
determined as a result of its investigation, as well as any other facts, the reasonable
requirements of the neighborhood for the type of license for which application has
been made, the desires of the adult inhabitants, the number, type and availability of
liquor outlets located in or near the neighborhood under consideration, and any other
pertinent matters affecting the qualifications of the applicant for the conduct of the type
of business proposed.
OPEN PUBLIC HEARING
2. TOWN CLERK. Will present the application and confirm the following:
The application was filed March 22, 2013.
At a meeting of the Board of Trustees on April 9, 2013, the public hearing was
set for 7:00 p.m. on Tuesday, April 23, 2013.
The neighborhood boundaries for the purpose of this application and hearing
were established to be 2.98 miles.
The Town has received all necessary fees and hearing costs.
The applicant is filing as an Individual.
The property is zoned CO – Outlying Commercial which allows this
type of business as a permitted use.
The notice of hearing was published on April 12, 2013 .
The premises was posted on April 10, 2013 .
2
There is a police report with regard to the investigation of the applicant.
Status of T.I.P.S. Training:
Unscheduled ____ Scheduled X Completed
There is a map indicating all liquor outlets presently in the Town of Estes Park
available upon request.
3. APPLICANT.
The applicants will be allowed to state their case and present any evidence they
wish to support the application.
4. OPPONENTS.
The opponents will be given an opportunity to state their case and present any
evidence in opposition to the application.
The applicant will be allowed a rebuttal limited to the evidence presented by the
opponents. No new evidence may be submitted.
5. MAYOR.
Ask the Town Clerk whether any communications have been received in regard
to the application and, if so, to read all communication.
Indicate that all evidence presented will be accepted as part of the record.
Ask the Board of Trustees if there are any questions of any person speaking at
any time during the course of this hearing.
Declare the public hearing closed.
6. SUGGESTED MOTION:
Finding. The Board of Trustees finds that the reasonable requirements of the
neighborhood are/are not met by the present liquor outlets in the neighborhood and
that the desires of the adult inhabitants are/are not for the granting of this liquor
license.
Motion. Based upon the above findings, I move that this license be granted/denied.
Page 1
COMMUNITY DEVELOPMENT Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Dave Shirk, Planner
Date: April 23 2013
RE: SUPPLEMENTAL CONDOMINIUM MAP #2, Stone Bridge Estates
Condominiums, 1167 Fish Creek Road, Stone Bridge Estates LLC &
Hanson Holdings, LLC /Applicants
Background: The applicant has
submitted a supplemental condominium
map application for Stone Bridge Estates
Condominiums.
The property is located on at 1167 Fish
Creek Road and is zoned RM Multi-Family
Residential.
The development approval provided for a
total of fourteen units. To date, three of
the units have been built and
condominiumized; this unit represents the
fourth to be condominiumized, leaving an additional ten units to be built.
Budget: N/A
Staff Recommendation: Planning Division Staff recommends approval.
Sample Motion: I move for the approval/denial of Stone Bridge Estates
Condominiums Supplemental Map #2 application.
Community Development Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Alison Chilcott, Director
Dave Shirk, Planner
Date: April 23, 2013
RE: SPECIAL REVIEW 2013-02, ELKHORN TUBING HILL, All Elkhorn
Addition (Less Elkhorn Plaza Lodges, less a portion of a metes and
bounds parcel); 600 W. Elkhorn Avenue; CMS Planning/Applicant
Background: This is a request to develop a Commercial Recreation or Entertainment
Establishment, Outdoor (year-round tubing hill). This new use requires Special Review
approval. Special Review uses require Planning Commission review and
recommendation and Town Board review and approval.
The tubing hill would include use of an existing structure for a ticketing office, a ‘magic
carpet’ surface lift similar to those used for ski areas, and the tubing runs. The runs
would be an artificial surface and use hard-bottomed ‘tubes’ designed to slide on the
plastic surface. The tubes would be stored in the existing horse barn near the bottom of
the hill. According to the Statement of Intent, the tubing operation would be a ‘daylight
only operation.’
Nonconforming Use. The Elkhorn Lodge property is zoned CO Commercial Outlying.
The existing accommodations and horse stables uses are classified nonconforming by
the terms of Chapter 6 Nonconforming Uses, Structures and Lots of the Estes Valley
Development Code (EVDC).
Staff has not performed a complete analysis of the degree of nonconformity, but
examples include: accommodations/outdoor entertainment uses, unpaved parking,
development in river setback, exterior lighting, refuse disposal and ADA access.
Section 6.3.C provides for the continuation of nonconforming uses and structures, but
‘nonconforming uses shall not be altered or extended’ except as outlined in Chapter 6.
Section 6.4.D of the EVDC allows for nonconforming uses to move toward compliance
in phases. Staff finds that if the issues listed below are successfully addressed, the
proposed use and development would be a move toward overall conformity and would
comply with Section 6.4.D.
1. The horse corral east of the horse barn is removed from the floodplain, and that
area successfully revegetated.
2. The number of horses and area of horse corral is reduced.
3. Waste accumulation and junk vehicles removed.
4. Incremental move toward animal-resistant trash enclosures.
In addition to the nonconformities to development code standards, the property does not
comply with the Municipal Code. Examples include keeping of waste materials, horses
without permits, and unpermitted livestock such as pigs, roosters and donkeys.
Waivers. The applicant requests waivers to the following development code standards:
1. §7.5 Landscaping
2. §7.11 Off-Street Parking and Loading Standards (typically requires paving of lot
and access aisle, lot striping, curb/gutter, ADA access)
3. Appendix D.III.B.9 regarding paving of parking lots and paving/curbing of
driveways serving more than eight parking spaces.
Staff Recommendation to the Planning Commission. Community Development staff
recommended approval to the Planning Commission with the following findings and
conditions:
Staff recommended findings:
1. The development does not comply with applicable standards set forth in the
EVDC (§3.8.D). Areas of non-compliance are outlined in the Findings of
Compliance with EVDC memo dated February 22, 2013. This includes
adequate public facilities such as drainage and pedestrian access.
2. The development plan is consistent with the policies, goals and objectives of
the Comprehensive Plan (§3.8.D).
3. The application for the proposed special review use mitigates, to the
maximum extent feasible, potential adverse impacts on nearby land use,
public facilities and services, and the environment (§3.5.B). For example,
business hours would end in the early evening
4. It is incumbent upon the applicant to demonstrate the requested modifications
advance the goals and purposes of the EVDC and either results in less visual
impact or more effective environmental or open space preservation, or
relieves practical difficulties in developing a site (§3.7.A.2.b).
5. The tubing hill is a change to the existing nonconforming use. If the
conditions recommended by staff regarding (1) river restoration, (2) reduction
in number of horses to no more than twenty, (3) removal of trash and debris,
and (4) move toward animal-resistant trash enclosures are met, the change of
use would comply with §6.4 Change of Use.
6. This is a Planning Commission recommendation the Town Board of the Town
of Estes Park.
7. In accordance with Section 3.2.D.2, ‘a revised application shall be a condition
precedent to placing the application on the Board’s agenda.’ The required
revisions are due within thirty days of Planning Commission recommendation.
Staff recommended conditions:
1. Prior to final approval of the Special Review Use, Applicant shall:
a. Demonstrate compliance with Section 7.08 Livestock of the Estes Park
Municipal Code (per Town Board finding, up to twenty horses allowed).
b. Demonstrate compliance with the Larimer County Health code regarding
port-o-lets.
c. Demonstrate compliance with CDOT requirements. This may require a
new access permit.
2. Compliance with affected agency memos:
a. Estes Valley Fire Protection District February 12 2013 memo
b. Water Department (Jeff Boles) memo dated 2/21/13
3. Submittal of a revised development plan addressing the following:
a. Restoration of the floodplain.
b. Outline area of horse operations and number of horses not to exceed
twenty.
c. Areas of trash accumulation to be removed, with note to be completed
prior to operation tubing hill.
d. Animal-resistant trash enclosures: outline where existing trash collection
is, what areas will be converted to animal-resistant enclosures (and how),
and what trash collection will remain unchanged.
e. Compliance with the Estes Valley Development Code, including but not
limited to Sections 7.12.F ‘drainage’, 7.12.H ‘transportation’ and sections
regarding pedestrian access, including ADA access.
Budget: N/A
Planning Commission Recommendation: Per Section 2.1.B of the development
code, the Planning Commission is the recommending body for Special Review Uses.
This means the Planning Commission recommendation is the formal recommendation
to the Town Board.
On Tuesday March 19 2013 the Estes Valley Planning Commission held a public
hearing to discuss the proposed Special Review 2013-02 ‘Elkhorn Tubing Hill.’ The
Planning Commission voted 3-2 to recommend DENIAL, with one abstention and one
absent.
As required by development code section 3.2.E.1, evidence from the Planning
Commission meeting is attached for Board consideration:
1. Minutes;
2. Statement of Intent;
3. Staff report;
4. Staff findings/code analysis;
5. Affected agency comments;
6. Neighborhood comments;
7. Traffic analysis;
8. Drainage report;
9. Noise impact statement; and,
10. Wildlife analysis.
Sample Motions:
A. I move for the denial of Special Review application 2013-02 ‘Elkhorn Tubing Hill’
finding that the application does not comply with the Estes Valley Development
Code.
B. I move for the approval of Special Review application 2013-02 ‘Elkhorn Tubing
Hill’ finding that if the application is revised per staff recommend conditions, the
application will comply with the Estes Valley Development Code.
Page 1
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Alison Chilcott, Community Development Director
Date: April 23, 2013
RE: Board of Appeals Appointments
Background:
Consisting of design professionals and contractors, the Board of Appeals hears and
decides appeals of decisions made by the Chief Building Official. The Board will also
meet as needed in order to advise the Town Board on matters relating to construction
codes, and to facilitate amendments and adoption of construction codes as directed by
the Town Board.
The Estes Park Board of Appeals consists of five volunteer members who serve
staggered five-year terms. All members are appointed by the Board of Trustees of the
Town of Estes Park. In 2011, with the adoption of the 2009 International Building Codes
and local amendments, the Board was changed from a three- to a five-member board,
with two alternate members. This also established the technical qualifications for
members. All positions are open.
Staff posted the positions in the Estes Park Trail-Gazette and received eight
applications. An interview team consisting of Trustee Blackhurst, Trustee Phipps, Public
Works Director Scott Zurn, and Utilities Superintendant Alan Fraundorf interviewed the
seven applicants (one applicant withdrew prior to the interviews). The team
recommends appointing the following applicants to the Board of Appeals. Each these
applicants has extensive construction industry experience and is a long-time community
member.
Joe Calvin for a five-year term expiring May 1, 2018. Joe Calvin is a principal and
project architect with Thorp Associates. At Thorp Associates, Joe Calvin is the team
member primarily responsible for code analysis and is very familiar with the
International Codes. He recently served on the Creative Sign Design Review Board.
Don Darling for a four-year term expiring May 1, 2017. Don Darling has owned and
operates Darling Enterprises, a local custom home building company for 10+ years,
building numerous homes throughout the Estes Valley. For over 10 years, Don Darling
sponsors the Annual Thanksgiving Community Gathering and Feast.
Community Development Memo
Page 2
Brad Klein for a three-year term expiring May 1, 2016. Brad Klein owns and
operates Advantage Mechanical. He has extensive experience construction experience
and is skilled in the design and installation of residential and commercial heating
systems. Brad has also volunteered extensively with local youth sports program.
Tony Schiaffo for a two-year term expiring May 1, 2015. Tony Schiaffo owns ARSI
Mechanical. He is a Colorado licensed plumber and is skilled plumbing and mechanical
contractor. He was also active in community meetings leading to the adoption of the
2009 I-Codes with local amendments.
John Spooner for a one-year term expiring May 1, 2014. John Spooner is a licensed
professional engineer with over 40 years of professional experience in engineering. He
has extensive experience in storm drainage and hydraulics. He works for Van Horn
Engineering and Surveying and has extensive local design experience, including
structural analysis of approximately 450 residential homes in the Estes Park area.
After the Board is seated board, next steps will include board training, creating a Board
of Appeals webpage (as recommended in the 2009 Zucker Systems Operational and
Organizational Review), drafting bylaws, revising the Board of Appeals local
amendment to remove the two alternate positions.
Budget:
N/A
Interview Team Recommendation:
The team recommends the appointments described above.
Sample Motion:
I move to appoint (or not appoint) the following to the Estes Park Board of Appeals
▪ Joe Calvin for a five-year term expiring May 1, 2018
▪ Don Darling for a four-year term expiring May 1, 2017
▪ Brad Klein for a three-year term expiring May 1, 2016.
▪ Tony Schiaffo for a two-year term expiring May 1, 2015.
▪ John Spooner for a one-year term expiring May 1, 2014.
Memo
UTILITIES DEPARTMENT
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Utilities Director Bergsten
Water Superintendent Boles
Date: April 23, 2013
RE: Purchase of Mini-Excavator
Background:
The Water Department’s 15-year-old backhoe has reached its useful life. The Fleet and
Water Departments have identified the need to replace this equipment. The
transmission and joints are wearing out creating a safety concern over the control of the
equipment. Sufficient funds ($131,717) have been escrowed for the replacement of this
equipment.
The Department’s needs are better served by the purchase of a mini-excavator, skid
steer loader and trailer. The skid steer loader and trailer together are estimated to cost
$50,000, the purchase of which will be considered later this year in the fall.
Skid Steer
Loader
Mini-Excavator
Trailer
Replacing the backhoe with the mini-excavator and a skid steer loader will allow the
crews to work more efficiently.
Departments do share equipment. The purchase of this excavator and skid steer has
been reviewed and approved by the Community Services and Public Works
Departments. This new excavator will be strong enough and have a long enough reach
to be capable of digging the six-foot deep trenches for water mains. The Utilities
Department would use the smaller units when working on private property to help limit
damage to vegetation. The Town also shares resources with Estes Park Sanitation
which currently owns a full-size excavator.
Three vendors delivered excavators for us to demo. Our crew evaluated them over a
two-month period and formed a consensus on the Caterpillar. Bids were requested from
each vendor. The quotes shown below include a trade-in value for our backhoe of
approximately $24,000, which has already been applied in the quoted prices.
Wagner Equipment “Caterpillar”
Windsor, Colorado
Model: 308ECR SB
$79,056 (recommended)
Colorado Machinery “John Deere”
Fort Collins, Colorado
Model: 85D
$79,402
Power Motive, “Komatsu”
Denver, Colorado
NO BID
Truck and backhoe must be side by
side encroaching into an additional
lane.
Work must stop to move
the backhoe and its
outriggers.
Without outriggers, excavator
moves along quickly with the
trench cut.
Excavator rotates allowing truck
to be placed in the same lane.
Budget:
$131,717 is escrowed in account number 635-700-435.34-42 for this replacement. This
is an unbudgeted purchase. If approved, the funding increase will be included in the
annual Supplemental Budget Appropriation Resolution brought forward each December.
Staff Recommendation:
Staff recommends the purchase of the Caterpillar 308ECR SB mini-excavator.
Sample Motion:
I move for the approval/denial to purchase the Caterpillar mini-excavator from Wagner
Equipment for the quoted price of $79,056.
PUBLIC WORKS Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Scott Zurn, PE, Public Works Director
Kevin Ash, PE, Public Works Civil Engineer
Date: April 23, 2013
RE: Moraine Avenue (Hwy 36) Pedestrian Improvements–Contractor Selection
Background:
McDowell Engineering has finalized design plans for the Moraine Avenue (Hwy 36)
Improvements. The scope of work for the project includes engineered sidewalk, curb
and gutter, handrail and drainage improvements along Moraine Avenue at Elkhorn
Avenue south to Crags Drive. During the design phase, 7 improvement areas along the
project boundary were determined. Open House meetings were conducted to inform
the public, take comments and adjust the project scope accordingly. Included with this
memo is an exhibit that was presented to the public and helps define the project.
Design for the Moraine Avenue (Hwy 36) Pedestrian Improvements Project has now
met approval from both the Town of Estes Park Public Works Department and the
Colorado Department of Transportation. On March 21st, 2013, CDOT gave their
concurrence for the project to go out to bid for construction. The project was publicly
advertised for bid on March 28th, 2013. After the required 21 days of advertisement, the
following firms submitted bids:
Firm Name City Bid Amount ($)
Mountain Constructors, Inc. Platteville, CO $299,877.30
Technology Constructors Inc. Arvada, CO $312,920.04
Northstar Concrete, Inc. Loveland, CO $307,283.75
Mountain Constructors, Inc. from Platteville, CO has submitted the low bid. For this
project, Mountain Constructors is proposing to use local firms: Cornerstone Concrete
for the sidewalk areas and Van Horn Engineering for the Survey work. Other
subcontractors in the proposal that have done work in Estes include Coulson
Excavating, Kolbe Striping, Northern Colorado Traffic Control and Sturgeon Electric.
Staff is currently evaluating the bids and will present its findings at the April 23rd Town
Board Meeting.
Schedule:
This project has been projected as a 4-6 week construction timeline by both our
consultant engineer and our contractor. Pending approval from the Town Board on
April 23rd, a Notice of Award will be issued to the contractor on April 24th. A Notice to
Proceed with construction will be issued with an April 29th start date. Construction
should be complete the end of May to early June.
Budget:
Pending Town Board approval and CDOT concurrence of the submitted bid, a contract
will be executed with Mountain Constructors, Inc. in the amount of $299,877.30.
This project is financed with CDOT roadside enhancement funding and is considered a
CDOT Local Agency project.
$236,000 Colorado Department of Transportation Grant Amounts
$-26,400 CDOT financial commitments through design
$209,600 CDOT remaining funds for project
$90,277.30 STIP commitment for project construction budget
Recommendation:
I recommend award of the Moraine Avenue (Hwy 36) Pedestrian Improvement Project
construction contract to Mountain Constructors, Inc. with a not-to-exceed fee of
$299,877.30.
TOWN OF ESTES PARK
CONTRACT AGREEMENT
THIS AGREEMENT is effective as of the 23rd day of April, 2013 by and between the Town of
Estes Park (TOEP), a body corporate and political, P.O. Box 1200, Estes Park, Larimer County,
Colorado, 80517, (hereinafter called OWNER) and Mountain Constructors, Inc. (hereinafter called
CONTRACTOR).
OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as
follows:
Article 1. WORK
CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The
Work is generally described as follows:
Construction Plans and Specifications have been prepared for the following Local Agency Project:
Moraine Avenue (Hwy 36) Pedestrian Improvements, STE M405-012, 17080
The improvements will consist of the installation of concrete curb, gutter and sidewalk, asphalt patching
and pedestrian railing at various locations along the west side of Moraine Avenue between Elkhorn
Avenue and Crags Drive, within the Town of Estes Park.
Article 2. PROJECT MANAGER
The Project Manager shall be determined by the TOEP Public Works Department, and who is
hereinafter called PROJECT MANAGER and who is to act as OWNER's representative, assume all
duties and responsibilities and have the rights and authority assigned to PROJECT MANAGER in the
Contract Documents in connection with completion of the Work in accordance with the Contract
Documents.
Article 3. CONTRACT TIMES
The OWNER must issue initial acceptance by May 31, 2013, and final acceptance by June 14, 2013,
and be ready for final payment in accordance with the General Conditions subject to applicable laws
regarding final payment.
Construction Agreement
7 Pages
1
Construction Agreement
7 Pages
2
Article 4. CONTRACTOR PRICE
OWNER shall pay the CONTRACTOR for completion of the Work in accordance with the Contract
Documents an amount in current funds equal to the sum of the amounts determined pursuant to the unit
prices times the quantities of work actually completed. Unit prices are those shown in the submitted
Proposal. Quantities of work actually completed will be determined by the PROJECT MANAGER.
Article 5. PAYMENT PROCEDURES
CONTRACTOR shall submit Applications for Payment in accordance with the General Conditions.
Applications for Payment will be processed by the PROJECT MANAGER as provided in the General
Conditions.
5.1 Progress Payments; Retainage. OWNER shall make progress payments per the Town’s Annual
Vendor Payment Schedule on account of the Contract Price on the basis of CONTRACTOR's
applications for Payment as recommended by PROJECT MANAGER, as provided by the
General Conditions during construction as provided in paragraphs 5.1.1 and 5.2 below.
5.1.1 Prior to Substantial Completion, progress payments will be made in an amount equal to the
percentage indicated below, but, in each case, less the aggregate of payments previously made
and less such amounts as PROJECT MANAGER shall determine, or OWNER may withhold, in
accordance with the General Conditions.
a. Ninety-five percent (95%) of Work completed (with the balance being retainage).
b. Ninety-five percent (95%) with the balance being retainage of materials and equipment
not incorporated in the Work (but delivered, suitably stored and accompanied by
documentation satisfactory to OWNER as provided in the General Conditions).
5.2 Final Payment. Upon final completion and acceptance of the Work in accordance with the
General Conditions, OWNER will publically advertise the Project Completion for two weeks.
Should no liens be officially posted the Owner shall pay the remainder of the Contract Price as
recommended by PROJECT MANAGER as provided in the General Conditions.
Article 6. INTEREST
Following settlement of any claims posted again this Contract; final payment will be made in
accordance with the Town’s Annual Vendor Payment Schedule. All moneys not paid when due as
provided in paragraph 27 of the General Conditions shall bear interest at the rate of 10% per annum
compounded monthly.
Construction Agreement
7 Pages
3
Article 7. CONTRACTOR'S REPRESENTATIONS
In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following
representations:
7.1 CONTRACTOR has examined and carefully studied the Contract Documents (including any
Addenda(s)) and the other related data identified in the Bidding Documents including "technical
data".
7.2 CONTRACTOR has reviewed the site, and become familiar with, and is satisfied as to the
general, local, and site conditions that may affect cost, progress, performance or furnishing the
Work.
7.3 CONTRACTOR acknowledges he knows, understands, and accepts all plans, specifications, and
design intent of the Work.
7.4 CONTRACTOR acknowledges he has met with the Project Manager and has been in
correspondence with the Project Manager and has sought and received clarification of all issues
concerning construction and design.
7.5 CONTRACTOR assumes full responsibility and obligation for high quality workmanship and
timely completion of this project as illustrated by the plans, drawings, and specifications.
7.6 CONTRACTOR understands that he may make on-site layout and grading and construction
modifications to achieve the desired intent. Such modifications/grading changes and layout cost
are already included in the Contract Documents.
7.7 CONTRACTOR understands and acknowledges that this Agreement is a performance based
Agreement, either based on: 1) unit prices 2) maximum lump sum amount: totaling
$ 299,877.30 that shall not be exceeded or increased, except for contract changes
allowed, agreed, and approved in writing.
7.8 CONTRACTOR will work cooperatively with the PROJECT MANAGER to mutually achieve a
final product acceptable to OWNER.
7.9 CONTRACTOR shall indemnify, save and hold harmless the OWNER from all damages, claims,
and judgments whatsoever (including costs, legal fees, and expenses incurred by the OWNER
related to such damages or claims) to the OWNER or claimed by third parties against the OWNER,
arising directly or indirectly out of CONTRACTOR'S negligent performance of any of the
requirements, provisions, or services furnished under this Agreement.
7.10 CONTRACTOR has obtained and carefully studied (or assumes responsibility for obtaining and
carefully studying) all examinations, investigations, explorations, tests, reports and studies which
pertain to the subsurface or physical conditions at or contiguous to the site or otherwise may
affect the cost, progress, performance or furnishing of the Work as CONTRACTOR considers
necessary for the performance of furnishing the Work at the Contract Price, within the Contract
Construction Agreement
7 Pages
4
Time and in accordance with the other terms and conditions of the Contract Documents,
including specifically the provisions of Paragraph 9 of the General Conditions; and no
additional examinations, investigations, explorations, tests, reports, studies or similar
information or data are or will be required by the CONTRACTOR for such purposes.
7.11 CONTRACTOR has reviewed and checked all information and data shown or indicated on the
Contract Documents with respect to existing underground facilities at or contiguous to the site
and assumes responsibility for the accurate location of said underground facilities. No additional
examinations, investigations, explorations, tests, reports, studies or similar information or data in
respect of said underground facilities are or will be required by CONTRACTOR in order to
perform and furnish the Work at the Contract Price, within the Contract Time and in accordance
with the other terms and conditions of the Contract Documents, including specifically the
provisions of the General Conditions.
7.12 CONTRACTOR has correlated the results of all such observations, examinations, investigations,
tests, reports, and data with the terms and conditions of the Contract Documents.
7.13 CONTRACTOR has given PROJECT MANAGER written notice of all conflicts, errors, or
discrepancies that he has discovered in the Contract Documents and the written resolution
thereof by PROJECT MANAGER is acceptable to CONTRACTOR.
Article 8. CONTRACT DOCUMENTS
The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR
concerning the Work, consisting of the following:
8.1 This Agreement
8.2 Exhibits to this Agreement.
8.3 Notice of Award
8.4 Notice to Proceed.
8.5 Information for Bidders.
8.6 Special Conditions.
8.7 General Conditions.
8.8 Drawings bearing the title: Moraine Avenue (Hwy 36) Pedestrian Improvements,
STE M405-012,17080
8.9 Addenda (s).
8.10 Contractor’s Bid. (Bid Proposal, Bid sheet & Appendix)
8.11 Bid Bond
8.12 Performance & Payment Bond
8.13 Drawing or Plans (including CDOT and Larimer County documents as referenced)
8.14 Technical Specifications and Details.
8.15 Documentation submitted by CONTRACTOR prior to Notice of Award.
8.16 Change Orders (post approval signatures)
8.17 Insurance Certificate, Business License, Tax Certification.
8.18 The following which may be delivered or issued after the Effective Date of the Agreement and
are not attached hereto:
Construction Agreement
7 Pages
5
All Written Amendments and other documents amending, modifying, or supplementing
the Contract Documents pursuant to the General Conditions.
The documents composing the Contract Documents are attached to this Agreement and made part hereof
(except as expressly noted otherwise above).
Contractors are required to comply with applicable federal, state, and local safety and health laws,
regulations and ordinances.
There are no Contract Documents other than those listed above. The Contract Documents may only be
amended, modified, or supplemented as provided in the General Conditions.
In case of conflicting provisions, requirements or discrepancies the order of application of the Contract
Documents is as follows:
1. Change Orders for clarification of drawings
2. This Agreement
3. Addenda
4. Drawings
5. Special Conditions
9 General Conditions
Article 9. MISCELLANEOUS
9.1 Reference to the General Conditions shall include modification thereto by any Supplementary
Conditions issued.
9.2 No assignments by a party hereto of any rights under or interests in the Contract Documents will
be binding on another party hereto without the written consent of the party sought to be bound;
and, specifically but without limitation, moneys that may become due and moneys that are due
may not be assigned without such consent (except to the extent that the effect of this restriction
may be limited by law), and unless specifically stated to the contrary in any written consent to an
assignment no assignment will release or discharge the assignor from any duty or responsibility
under the Contract Documents.
9.3 Except for the intended beneficiaries of any "Labor and Material Payment Bond" executed in
conjunction with this Agreement, nothing in this Agreement shall be construed to give any rights
or benefits by virtue of this Agreement to anyone other than OWNER and CONTRACTOR, and
all duties and responsibilities undertaken pursuant to this Agreement will be for the sale and
exclusive benefit of OWNER and CONTRACTOR and not for the benefit of any other party.
9.4 OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal
representatives to the other party hereto, its partners, successors, assigns and legal
representatives in respect to all covenants, agreements and obligations contained in the Contract
Documents.
Construction Agreement
7 Pages
6
9.5 In the event of default of any of the provisions of this Agreement by either party which shall
require the party not in default to commence legal actions against the defaulting party, the
defaulting party shall be liable to the non-defaulting party for the non-defaulting party's
reasonable attorney fees and costs, including fees of experts, incurred because of the default.
Additionally, CONTRACTOR shall indemnify the OWNER for legal expenses and costs
incurred by the OWNER by reason of claims filed by suppliers, subcontractors or other parties,
against the Retainage held by the OWNER where the OWNER has paid such sums to the
CONTRACTOR.
9.6 The OWNER has allocated sufficient funds to pay the contract price. PO#_________________.
9.7 Any provisions or part of the Contract Documents held to be void or unenforceable under any
Law or Regulations shall be deemed stricken, and all remaining provisions shall continue to be
valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents
shall be reformed to replace such stricken provision or part thereof with a valid and enforceable
provision that comes as close as possible to expressing the intention of the stricken provision.
9.8 The Contractor certifies that the Contractor shall comply with the provisions of CRS 8-17.5-101,
et seq. The Contractor shall not knowingly employ or contract with an illegal alien to perform
work under this contract or enter into a contract with a subcontractor that knowingly employs or
contracts with an illegal alien to perform work under this contract. The Contractor represents,
warrants, and agrees that:
· it (i) has verified that it does not employ any illegal aliens, through participation in the Basic
Pilot Employment Verification Program administered by the Social Security Administration
and the Department of Homeland Security,
· or (ii) otherwise will comply with the requirements of CRS 8-17.5-102(2)(b)(I). The
Contractor shall comply with all reasonable requests made in the course of an investigation
by the Colorado Department of Labor and Employment. If the Contractor fails to comply
with any requirement of this provision or CRS 8-17.5-101, et seq., the Town may terminate
this contract for breach of contract, and the Contractor shall be liable for actual and
consequential damages to the Town.
If the Contractor obtains actual knowledge that a subcontractor performing work under this
contract knowingly employs or contracts with an illegal alien, the Contractor shall:(a.) Notify the
subcontractor and the Town within three days that the Contractor has actual knowledge that the
subcontractor is employing or contracting with an illegal alien; and (b.) terminate the subcontract
with the subcontractor if within three days of receiving the notice required pursuant to sub-
paragraph (a) above, the subcontractor does not stop employing or contracting with the illegal
alien, unless the subcontractor provides information to establish that the subcontractor has not
knowingly employed or contracted with an illegal alien.
Construction Agreement
7 Pages
7
IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate.
One counterpart each has been delivered to OWNER, CONTRACTOR, and PROJECT MANAGER. All
portions of the Contract Documents have been signed, initialed or identified by OWNER and
CONTRACTOR or identified by PROJECT MANAGER on their behalf.
This Agreement will be effective as provided on the first page hereof.
TOWN OF ESTES PARK
By: ______________________________ By: __________________________
William C. Pinkham
Title: ____________________________ Title: ________________________
(If CONTRACTOR is a corporation
attach evidence of authority to sign.)
Attest: __________________________ Attest: ______________________
Address for giving notices: Address for giving notices:
170 MacGregor Avenue
P. O. Box 1200
Estes Park, Colorado 80517
970-577-3586
Town of Estes Park
Public Works Department
NOTICE OF AWARD
TO: Mountain Constructors, Inc.
Attn: Joe Kuntz, Vice President
622 Main Street
Platteville, CO 80651
Re: Moraine Avenue (Hwy 36) Pedestrian Improvements, STE M405-012, 17080
Date: April 23, 2013
Contract Administrator:
The Town of Estes Park, Colorado, hereinafter called “OWNER”, has considered the Bid
Proposals submitted for this Project.
You are hereby notified that your Price Quote for Moraine Avenue (Hwy 36) Pedestrian
Improvements, STE M405-012, 17080 has been accepted for the items and prices stated in the
amount of $299,877.30.
You are required to execute the Contract Agreement and furnish the necessary Insurance
Certificates within seven (7) days from the date of this Notice. (prior to work)
You are required to return an acknowledged copy of this Notice of Award and enclosures to the
Owner.
ATTEST: TOWN OF ESTES PARK, COLORADO
By:___________________________ By:_______________________________________
Title:___________________________ Title:_____________________________________
Receipt of above Notice of Award accompanied with two (2) copies of the Contact Agreement is
hereby acknowledged.
This____________day of______________________, 2013
Bidder:_____________________________________
Address:_____________________________________
____________________________________________
corporate seal
FINANCE Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Steve McFarland, Finance Officer
Date: April 23, 2013
RE: Ordinance #06-13 Approving Certificates of Participation
Background:
At its special meeting on February 7, 2013, the Town Board approved the construction
of the Multi-Purpose Event Center (MPEC) and Stall Barn including on-site
improvements and directed Staff to assemble a financing package using cash and
Certificates of Participation. Staff has worked with the Town’s Financial Consultant, Jim
Manire, to review and negotiate a Certificate of Participation financing package to
provide approximately $6,100,000 of the funding for the MPEC and Stall Barn project.
The Town received 7 responses to the RFP issued on March 15, 2013, requesting
entrance into a (approximately) $6,100,000 lease purchase obligation for financing the
MPEC and Stall Barn project. Branch Banking and Trust (BB&T), a bank
headquartered in North Carolina, offered both the lowest interest rate (2.43%) and the
best Call option (callable after December 1, 2020, without penalty). Annual payments
are in the ~$515,000-$520,000 range, the final payment coming due December 2027.
UMB Bank will act as the Trustee.
Financial (Jim Manire) and legal counsel (Rick Buddin, Greg White) have been working
with BB&T (Taylor Vick) and their legal counsel (Colorado-based Sherman & Howard,
LLC) to provide appropriate documents for this financing.
If approved, Ordinance No. 06-13 will be effective 30 days after signature of the Mayor
and publication. In order to meet the financing timetable presented at the March 12,
2013, Study Session, approval of Ordinance No. 06-13 is requested at this time. Due to
the holiday schedule (Memorial Day), this allows the Town to secure financing on or
around May 28th, which will be within the approved timetable of May 31st to enter into an
agreement with the Contractor.
Approval of Ordinance No. 06-13 approves and authorizes execution of the following
documents:
1. The leasing of the Leased Property (Town Hall and a portion of the Municipal
Parking Lot) to UMB Bank (the Trustee) by execution of the Site Lease.
2. The subleasing of the Leased Property from the Trustee back to the Town by the
execution of the Lease Purchase Agreement.
3. Acknowledgement of the execution and delivery by the Trustee of the Indenture
of Trust and the approval of $6,125,000 as the maximum principal amount of the
Certificates that may be executed and delivered under the indenture.
Please see the attached flow chart for a synopsis of the financing process. Please also
note that the attached documents are the latest drafts; any changes from the date of
this memo until the Tuesday April 23rd Board meeting will be discussed at the Board
meeting.
The documents attached to this memo include:
1. Flow Chart of Proposed Financing
2. Ordinance # 06-13, authorizing Site Lease and Lease Purchase Agreement
3. Draft Site Lease
4. Draft Lease Purchase Agreement
5. Indenture of Trust
Budget:
The first payment of approximately $75,000 due on December 1, 2013 pursuant to the
Lease Purchase Agreement will be paid from the Community Reinvestment Fund in the
2013 Budget. Future payments will be budgeted in each individual year’s budget.
Please note that the required payments under the Lease Purchase Agreement are from
year to year only, and shall constitute only each individual year budgeted expenditures
of the Town and are not a general obligation indebtedness or multiple fiscal year direct
or indirect debt of the Town.
No budget adjustments are necessary at this meeting. Prior to contracting with Dohn
Construction to construct the MPEC and Stall Barn, the 2013 Budget (Community
Reinvestment Fund) will have to be amended to reflect the above activity. Staff will
bring the amendment to the 1st Board meeting in May.
Staff Recommendation:
Staff and financial/legal counsel recommend the adoption of Ordinance 06-13.
Sample Motion:
I move for the adoption of Ordinance 06-13.
FLOW CHART OF PROPOSED FINANCING FOR MULTIPURPOSE EVENT CENTER AND STALL BARN
April 23, 2012
SITE LEASE
LEASE PURCHASE AGREEMENT (SUB LEASE)
CERTIFICATES OF PARTICIPATION (COPs)
The Site Lease is an agreement in which the Town (lessor) leases Town Hall to UMB Bank (Trustee,
lessee) in exchange for $6,100,000 in prepaid rent, which the Town will use to construct the
multipurpose event center and stall barn and to pay the costs of the transaction.
In the Lease Purchase Agreement (Sub Lease), UMB Bank (sublessor) leases Town Hall back to the
Town (sublessee) for semi‐annual rental payments to be made through 2027. The payments will be
based on a coupon (interest) rate of 2.43%. Total annual payments will range from $515,000‐
$520,000, depending upon the year. UMB’s leasehold interest in Town Hall can be refinanced (or
purchased) with no penalty beginning in 2020. The Site Lease terminates on the earlier of when the
Lease Purchase Agreement is paid in full, or in 2042.
Once the above agreements are in place, UMB will place the two leases in trust and issue Certificates
of Participation (COPs). Branch Bank and Trust (BB&T) will be the sole purchaser of the issued COPs.
BB&T is purchasing the revenue flow represented by the rent payable by the Town under the Lease
Purchase Agreement. BB&T will pay ~$6.1 million for the COPs and in return will be paid ~$7.3
million over the life of the Agreement. The Town does not directly issue the COPs, but obviously the
Town and its collateral (Town Hall) are the centerpieces of this transaction.
ORDINANCE NO. 06-13
AN ORDINANCE AUTHORIZING THE FINANCING OF THE
CONSTRUCTION OF A MULTI-PURPOSE EVENTS CENTER AND NEW
STALL BARNS AT THE STANLEY PARK FAIRGROUNDS COMPLEX BY
LEASING THE TOWN HALL AND A PORTION OF THE ADJACENT
PARKING AREA TO UMB BANK, n.a., AS TRUSTEE, PURSUANT TO A
SITE LEASE AND SUBLEASING SUCH REAL PROPERTY BACK FROM
UMB BANK, n.a., AS TRUSTEE, PURSUANT TO A LEASE PURCHASE
AGREEMENT.
WHEREAS, the Town of Estes Park, Colorado (the “Town”) is a statutory town and
political subdivision duly organized and existing pursuant to the laws of the State of Colorado
(the “State”); and
WHEREAS, the Board of Trustees of the Town (the “Board”) is authorized, pursuant to
Section 31-15-713(1)(c), Colorado Revised Statutes, to lease any real estate, together with any
facilities thereon, owned by the Town when deemed by the Board to be in the best interest of the
Town; and
WHEREAS, the Board is authorized, pursuant to Section 31-15-101(1)(d), Colorado
Revised Statutes, to acquire, hold and lease property, both real and personal; and
WHEREAS, the Town has an immediate need for a multi-purpose events center and new
stall barns at the Stanley Park Fairgrounds complex (the “Project”); and
WHEREAS, the Town has a fee simple absolute interest in the land and building located
at 170 MacGregor Avenue and being used as the Town Hall, together with a portion of the
adjacent parking area (collectively, the “Town Hall”); and
WHEREAS, in order to provide funds for the construction of the Project, the Board has
determined that it is in the best interest of the Town that the Town Hall (the “Leased Property”)
be leased to UMB Bank, n.a., as Trustee (the “Trustee”), and that the Leased Property be
subleased by the Trustee back to the Town; and
WHEREAS, in order to carry out such transactions, the Town desires to (a) enter into that
certain Site Lease (the “Site Lease”), between the Town, as lessor, and the Trustee, as lessee,
whereby the Town will lease the Leased Property to the Trustee, and (b) enter into that certain
annually renewable Lease Purchase Agreement (the “Lease”), between the Trustee, as sublessor,
and the Town, as sublessee, whereby the Trustee will sublease the Leased Property back to the
Town; and
WHEREAS, the obligation of the Town to pay Base Rentals and Additional Rentals (both
as defined in the Lease) shall be from year to year only, shall constitute currently budgeted
expenditures of the Town, shall not constitute a mandatory charge or requirement against the
Town in any ensuing budget year beyond any budget year during which the Lease is in effect,
and shall not constitute a general obligation indebtedness or multiple fiscal year direct or indirect
2
debt or other financial obligation whatsoever of the Town within the meaning of any
constitutional or statutory limitation or requirement concerning the creation of indebtedness, nor
a mandatory payment obligation of the Town in any ensuing fiscal year beyond any fiscal year
during which the Lease shall be in effect; and
WHEREAS, there have been presented to the Board at this meeting copies of the
proposed forms of the Lease and the Site Lease; and
WHEREAS, pursuant to Section 18-8-308, Section 24-18-109, and Section 24-18-110,
Colorado Revised Statutes, no member of the Board has any substantial financial interest in the
subject of this Ordinance, or any personal or private interest, whether or not financial, in the
subject of this Ordinance; and
WHEREAS, the Board has engaged BLX Group of Denver, Colorado, as financial
advisor to the Town (the “Financial Advisor”) to assist the Town in structuring the financing of
the Project; and
WHEREAS, the Finance Director of the Town received responses from bidders
proposing to purchase proportionate undivided interests in the right of the Trustee to receive
payments of Base Rentals under the Lease in order to finance the Project, and the Finance
Director of the Town and the Financial Advisor have reviewed such bids and determined that the
best bid was submitted by Branch Banking and Trust Company (“BB&T”); and
WHEREAS, the Trustee shall execute an Indenture of Trust pursuant to which there shall
be executed and delivered to BB&T one or more Certificates of Participation, Series 2013 (the
“Certificates”), which represent proportionate undivided interests in the right to receive the Base
Rentals paid by the Town under the Lease; and
WHEREAS, the Board desires to authorize, approve and direct the execution of the
agreements and instruments described above to be executed by the Town and the transactions
evidenced thereby.
BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES
PARK, COLORADO:
Section 1. All actions heretofore taken (not inconsistent with the provisions of this
Ordinance) by the Board or the officers, employees and agents of the Board or the Town,
directed toward the construction of the Project and the execution and delivery of the Lease and
the Site Lease, are hereby ratified, approved and confirmed.
Section 2. The Board hereby finds and determines, pursuant to the Constitution and laws
of the State of Colorado, that (a) the leasing of the Leased Property to the Trustee under the
terms and provisions set forth in the Site Lease, and (b) the subleasing of the Leased Property
from the Trustee to the Town under the terms and provisions set forth in the Lease, are
necessary, convenient and in furtherance of the governmental purposes of the Town and are in
the best interest of the Town; and the Board hereby authorizes, approves and directs the
accomplishment of the foregoing under the terms and provisions of the Lease and the Site Lease.
3
Section 3. The Lease, in substantially the form and with substantially the content
presented to this meeting of the Board, is in all respects approved, authorized and confirmed, and
the Mayor or, in the absence thereof, the Mayor Pro Tem of the Town is authorized and directed
to execute the Lease in substantially the form and with substantially the same content as the form
thereof presented to this meeting of the Board, for and on behalf of the Town, but with such
changes therein as shall be consistent with this Ordinance and as the Town Attorney and the
Mayor or Mayor Pro Tem shall approve, the execution thereof being deemed conclusive of the
approval of any such changes. The Board hereby approves the amount of $7,600,000 as the
maximum total amount of Base Rentals and the amount of $540,000 as the maximum annual
amount of Base Rentals to be paid for the leasing of the Leased Property by the Town from the
Trustee under the terms and conditions of the Lease. The number of Renewal Terms (as defined
in the Lease) of the Lease shall not exceed fifteen. The Board hereby delegates to the Town
Administrator or the Finance Director of the Town the authority to determine the final amount of
Base Rentals to be paid on each Base Rental Payment Date (as defined in the Lease) and the final
number of Renewal Terms of the Lease, all of which shall be subject to the parameters and
restrictions contained in this Ordinance.
Section 4. The Site Lease, in substantially the form and with substantially the content
presented to this meeting of the Board, is in all respects approved, authorized and confirmed, and
the Mayor or, in the absence thereof, the Mayor Pro Tem of the Town is authorized and directed
to execute the Site Lease in substantially the form and with substantially the same content as the
form thereof presented to this meeting of the Board, for and on behalf of the Town, but with such
changes therein as shall be consistent with this Ordinance and as the Town Attorney and the
Mayor or Mayor Pro Tem shall approve, the execution thereof being deemed conclusive of the
approval of any such changes.
Section 5. The Mayor, the Mayor Pro Tem and other officials of the Board or the Town
are hereby authorized to execute and deliver for and on behalf of the Town any other agreements
and all other related certificates, documents and other papers associated with or necessitated by
the lease and lease-back of the Leased Property, or necessary or advisable for the use of and
access to the Leased Property or certain Town-owned parking lots near the Leased Property, by
the Trustee.
Section 6. The Board hereby acknowledges the execution and delivery by the Trustee of
the Indenture of Trust (the “Indenture”), in substantially the form and with substantially the same
content as the form thereof presented to this meeting of the Board, and approves the amount of
$6,100,000 as the maximum principal amount of the Certificates that may be executed and
delivered thereunder.
Section 7. The Board hereby acknowledges and consents to the placement in trust by the
Trustee, pursuant to the Indenture, of all rights, title and interest of the Trustee in, to and under
the Site Lease and the Lease.
Section 8. The Town Clerk or the Deputy Town Clerk is hereby authorized and directed
to attest, as necessary, all signatures and acts of any official of the Board or the Town in
connection with the matters authorized by this Ordinance, and to place the seal of the Town on
the Lease and the Site Lease authorized and approved by this Ordinance and all other additional
4
certificates, documents and other papers associated with the transactions and other matters
authorized by this Ordinance. The Mayor or, in the absence thereof, the Mayor Pro Tem of the
Town, the Town Administrator and the Finance Director of the Town and all other officials,
employees and agents of the Board or the Town are hereby authorized to execute and deliver for
and on behalf of the Town any and all additional certificates, documents and other papers,
including, but not limited to any agreement concerning the deposit and investment of funds in
connection with the transactions contemplated by this Ordinance, and to perform all other acts
that they may deem necessary or appropriate in order to implement and carry out the transactions
and other matters authorized or contemplated by this Ordinance.
Section 9. No provision of this Ordinance, the Lease or the Site Lease or any other
agreement, or other additional certificates, documents and other papers associated with the
transactions authorized by this Ordinance shall be construed as creating or constituting a general
obligation indebtedness or a multiple fiscal year direct or indirect debt or other financial
obligation whatsoever of the Town nor a mandatory payment obligation of the Town in any
ensuing fiscal year beyond any fiscal year during which the Lease shall be in effect. The Town
shall have no obligation to make any payment under the Indenture or with respect to the
Certificates except in connection with the payment of the Base Rentals (as defined in the Lease)
and certain other payments under the Lease, which payments may be terminated by the Town in
accordance with the provisions of the Lease.
Section 10. The Board hereby determines and declares that the Base Rentals represent
the fair value of the use of the Leased Property, and that the Purchase Option Price (as defined in
the Lease) represents the fair purchase price of the Leased Property. The Board hereby
determines and declares that the annual Base Rentals do not exceed a reasonable amount so as to
place the Town under an economic or practical compulsion to appropriate moneys to make
payments under the Lease or to exercise its option to purchase the Leased Property pursuant to
the Lease. In making such determinations, the Board has given consideration to the current
value of the Leased Property, the cost of acquiring, constructing or equipping property similar to
the Leased Property, the uses and purposes for which the Leased Property is being and will be
employed by the Town, the benefit to the citizens and residents of the Town by reason of the use
and occupancy of the Leased Property by the Town pursuant to the terms and provisions of the
Lease, the option of the Town to purchase the Leased Property, and the expected eventual
vesting of full title to the Leased Property in the Town. The Board hereby determines and
declares that the leasing of the Leased Property pursuant to the Lease will result in facilities of
comparable quality for use by the Town and meeting the same requirements and standards as
would be necessary if the Town acquired the Leased Property other than pursuant to the Lease.
The Board hereby determines and declares that the duration of the Lease, including all optional
Renewal Terms, authorized under this Ordinance, does not exceed the weighted average useful
life of the Leased Property.
Section 11. The Board hereby determines and declares that, in the event the Site Lease
shall remain in effect after the termination of the Lease related thereto and authorized under this
Ordinance, the rentals received or to be received by the Town under the Site Lease represent the
fair rental value of the property leased by the Town to the Trustee under the Site Lease, and that
such rentals do not place the Town under an economic or practical compulsion to renew the
Lease related thereto or to exercise its option to purchase the Leased Property.
5
Section 12. The Board hereby elects to apply all of the provisions of the Supplemental
Public Securities Act, part 2 of article 57 of title 11, Colorado Revised Statutes, to the
transactions authorized by this Ordinance.
Section 13. If any section, paragraph, clause or provision of this Ordinance (other than
provisions as to the payment of Base Rentals by the Town during the Lease Term and provisions
for conveyance of the Leased Property to the Town under the conditions provided in the Lease)
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 Ordinance.
Section 14. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent
with this Ordinance or with any of the documents hereby approved, are hereby repealed only to
the extent of such inconsistency. This repealer shall not be construed as reviving any bylaw,
order, resolution or ordinance, or part thereof.
Section 15. This Ordinance, immediately upon its passage, shall be recorded in the
Town book of Ordinances kept for that purpose, and shall be authenticated by the signatures of
the Mayor and of the Town Clerk.
Section 16. Following its adoption, this Ordinance shall take effect and be in force on
the date that is 30 days after its publication.
INTRODUCED, READ BY TITLE, APPROVED AND ADOPTED on the 23rd day
April, 2013.
TOWN OF ESTES PARK, COLORADO
[SEAL]
By
Mayor
Attest:
By
Town Clerk
I hereby certify that the above Ordinance was introduced and read at the meeting of the
Board of Trustees on the _______ day of ___________, 2013, and published in a newspaper of
general circulation in the Town of Estes Park, Colorado, on the ____ day of ____________,
2013.
_____________________________
Town Clerk
4820-3534-6963.1
SITE LEASE
by and between
TOWN OF ESTES PARK, COLORADO,
as Lessor,
and
UMB BANK, n.a.
in its capacity as Trustee under an Indenture of Trust dated the date hereof,
as Lessee
Dated May __, 2013
4820-3534-6963.1
THIS SITE LEASE dated May __, 2013 (this “Site Lease”), by and between the TOWN
OF ESTES PARK, COLORADO, as lessor (the “Town”), and UMB BANK, n.a., in its
capacity as trustee under an Indenture of Trust dated the date hereof, and its successors and
assigns, as lessee (the “Trustee”).
W I T N E S S E T H:
WHEREAS, the Town is a statutory town and political subdivision of the State of
Colorado (the “State”) duly organized and validly existing under the laws of the State; and
WHEREAS, the Board of Trustees of the Town (the “Board”) is authorized, pursuant to
Section 31-15-713(1)(c), Colorado Revised Statutes, to lease any real estate, together with any
facilities thereon, owned by the Town when deemed by the Board to be in the best interest of the
Town; and
WHEREAS, the Board is authorized, pursuant to Section 31-15-101(1)(d), Colorado
Revised Statutes, to acquire, hold and lease property, both real and personal; and
WHEREAS, the Town has an immediate need for a multi-purpose events center and new
stall barns at the Stanley Park Fairgrounds complex (the “Project”); and
WHEREAS, the Town owns (a) the land that is legally described in Exhibit A attached
hereto (the “Site”); and (b) the building located on the Site and located at 170 MacGregor
Avenue and being used as the Town Hall (the “Building”); and
WHEREAS, in order to provide moneys for the construction of the Project, the Board has
determined that it is in the best interest of the Town to lease the Site and the Building to the
Trustee pursuant to this Site Lease and to lease the Site and the Building (collectively defined as
the “Leased Property” under the hereinafter defined Lease) back from the Trustee pursuant to
that certain Lease Purchase Agreement (the “Lease”) between the Trustee, as sublessor, and the
Town, as sublessee; and
WHEREAS, the Trustee (a) is a national banking association duly organized and existing
under the laws of the United States of America, (b) is duly qualified to do business in the State,
(c) is executing and delivering and will perform its obligations under this Site Lease as trustee
under the Indenture of Trust dated the date hereof by the Trustee (the “Indenture”) pursuant to
which there will be executed and delivered Certificates of Participation, Series 2013 (the
“Certificates”), in the aggregate principal amount of $__________, evidencing proportionate
interests in the right to receive Base Rentals and certain other Revenues (each as defined in the
Lease) derived under the Lease and (d) in its capacity as Trustee, (i) will lease the Leased
Property hereunder and (ii) is authorized, under its articles of association, action of its board of
directors and applicable law, to lease the Leased Property and to execute, deliver and perform its
obligations under this Site Lease; and
WHEREAS, the Town desires to lease the Leased Property to the Trustee and the Trustee
desires to lease the Leased Property from the Town pursuant to this Site Lease; and
2
4820-3534-6963.1
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows;
Section 1. Definitions. Unless the context otherwise requires, capitalized terms used
herein shall have the meanings ascribed to them herein and in the Lease or the Indenture.
Section 2. Representations, Covenants and Warranties by Trustee. The Trustee
represents, covenants and warrants that:
(a) The Trustee (i) is a national banking association duly organized, validly
existing and in good standing under the laws of the United States of America, (ii) is duly
qualified to do business in the State and (iii) is authorized, under its articles of association
and bylaws, action of its board of directors and applicable law, to own and manage its
properties, to conduct its affairs in the State, to lease the Leased Property from the Town
and to execute, deliver and perform its obligations hereunder.
(b) The lease of the Leased Property from the Town pursuant to this Site
Lease is in the best interests of the Owners of the Certificates.
(c) The execution, delivery and performance of this Site Lease by the Trustee
has been duly authorized by the Trustee.
(d) This Site Lease is enforceable against the Trustee in accordance with its
terms, limited only by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally, by equitable principles, whether
considered at law or in equity, by the exercise by the State of Colorado and its
governmental bodies of the police power inherent in the sovereignty of the State of
Colorado and by the exercise by the United States of America of the powers delegated to
it by the Constitution of the United States of America.
(e) The execution, delivery and performance of the terms of this Site Lease by
the Trustee does not and will not conflict with or result in a breach of the terms,
conditions or provisions of any restriction or any agreement or instrument to which the
Trustee is now a party or by which the Trustee is bound, or constitute a default under any
of the foregoing or, except as specifically provided in this Site Lease, the Lease or the
Indenture, result in the creation or imposition of a lien or encumbrance whatsoever upon
any of the property or assets of the Trustee.
(f) There is no litigation or proceeding pending or threatened against the
Trustee or any other Person affecting the right of the Trustee to execute, deliver or
perform its obligations under this Site Lease.
Section 3. Representations, Covenants and Warranties by Town. The Town
represents, covenants and warrants that:
(a) The Town is authorized under Section 31-15-713(1)(c), Colorado Revised
Statutes, as amended, and all other applicable law to lease the Leased Property to the
Trustee and to execute, deliver and perform its obligations under this Site Lease.
3
4820-3534-6963.1
(b) The lease of the Leased Property to the Trustee pursuant to this Site Lease
serves a public purpose and is in the best interests of the Town and its residents.
(c) The execution, delivery and performance of this Site Lease by the Town
has been duly authorized by the Town.
(d) This Site Lease is enforceable against the Town in accordance with its
terms, limited only by bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally, by equitable principles, whether
considered at law or in equity, by the exercise by the State of Colorado and its
governmental bodies of the police power inherent in the sovereignty of the State of
Colorado and by the exercise by the United States of America of the powers delegated to
it by the Constitution of the United States of America.
(e) The execution, delivery and performance of the terms of this Site Lease by
the Town does not and will not conflict with or result in a breach of the terms, conditions
or provisions of any restriction or any agreement or instrument to which the Town is now
a party or by which the Town is bound, or constitute a default under any of the foregoing
or, except as specifically provided in this Site Lease or the Lease, result in the creation or
imposition of a lien or encumbrance whatsoever upon any of the property or assets of the
Town.
(f) There is no litigation or proceeding pending or threatened against the
Town or any other Person affecting the right of the Town to execute, deliver or perform
the obligations of the Town under this Site Lease.
(g) No provision of the Certificates, the Indenture, the Lease or this Site Lease
shall be construed or interpreted (a) to directly or indirectly obligate the Town to make
any payment in any Fiscal Year in excess of amounts appropriated for such Fiscal Year;
(b) as creating a debt or multiple fiscal year direct or indirect debt or other financial
obligation whatsoever of the Town within the meaning of Article XI, Section 6 or Article
X, Section 20 of the Colorado Constitution or any other constitutional or statutory
limitation or provision; (c) as a delegation of governmental powers by the Town; (d) as a
loan or pledge of the credit or faith of the Town or as creating any responsibility by the
Town for any debt or liability of any person, company or corporation within the meaning
of Article XI, Section 1 of the Colorado Constitution; or (e) as a donation or grant by the
Town to, or in aid of, any person, company or corporation within the meaning of Article
XI, Section 2 of the Colorado Constitution.
Section 4. Lease and Terms. The Town hereby leases to the Trustee and the Trustee
hereby leases from the Town, on the terms and conditions hereinafter set forth, the real property
consisting of the sites or parcels (the “Site”) described in Exhibit A attached hereto and made a
part hereof, and the building, improvements and facilities presently located thereon (the
“Building”) described in Exhibit B attached hereto and made a part hereof, subject to Permitted
Encumbrances (as defined in the Lease).
4
4820-3534-6963.1
The term of this Site Lease shall commence on the date hereof and shall end on
December 1, 2037 (the “Site Lease Termination Date”), unless such term is sooner terminated as
hereinafter provided. If, prior to the Site Lease Termination Date, the interest of the Trustee in
the Leased Property has been conveyed to the Town pursuant to the Lease and the Lease has
been discharged, then the term of this Site Lease shall end on the date of such conveyance.
Section 5. Rent and Payment. The Town acknowledges, as rent and payment
hereunder, that the Trustee has paid or will pay in full, the lump-sum of Six Million
______________________ Dollars ($6,___,000) to the Town, for the lease of the Leased
Property, and the receipt of other good and valuable consideration.
Section 6. Purpose. The Trustee shall use the Leased Property solely for the purpose of
subletting the same to the Town pursuant to the Lease and for such purposes as may be
incidental thereto; provided, that upon the occurrence of an Event of Nonappropriation or an
Event of Default under the Lease, the Town shall vacate the Leased Property as provided in the
Lease, and the Trustee may exercise the remedies provided in the Lease and may use or sublet
the Leased Property for any lawful purpose.
Section 7. Owner in Fee. The Town covenants that it is the owner in fee of the Leased
Property, subject only to Permitted Encumbrances (as defined in the Lease).
Section 8. Assignments and Subleases.
(a) Unless an Event of Nonappropriation or an Event of Default under the
Lease shall have occurred and except as may otherwise be provided in the Lease, the
Trustee may not assign its rights under this Site Lease or sublet the Leased Property
without the written consent of the Town.
(b) In the event that (i) the Lease is terminated for any reason and (ii) this Site
Lease is not terminated, the Trustee may sublease the Leased Property or any portion
thereof, or sell or assign its interest in this Site Lease. Except as provided in this Site
Lease, the Town and the Trustee agree that, except as may otherwise be provided in the
Lease, neither the Town nor the Trustee or any sublessee or assignee of the Trustee will
sell, mortgage or encumber the Leased Property or any portion thereof during the term of
this Site Lease.
Section 9. Right of Entry. The Town reserves the right, so long as no Event of
Nonappropriation or Event of Default shall have occurred under the Lease, for any of its duly
authorized representatives to enter upon the Leased Property at any reasonable time to inspect
the same or to make any repairs, improvements or changes necessary for the preservation
thereof.
Section 10. Termination. The Trustee agrees, upon the termination of this Site Lease,
to quit and surrender the Leased Property to the Town, in the same order and condition as the
same were at the time of commencement of the term hereunder, reasonable wear and tear
excepted, and agrees that any fixtures, permanent improvements and structures existing upon the
Leased Property at the time of the termination of this Site Lease shall remain thereon and all
legal interests of the Trustee thereto shall vest in the Town. The Trustee and any sublessee or
5
4820-3534-6963.1
assignee shall execute and deliver, upon request by the Town, any instrument of transfer,
conveyance or release necessary or appropriate to confirm the vesting of such legal interests in
the Town.
Section 11. Default. In the event the Trustee shall be in default in the performance of
any obligation on its part to be performed under the terms of this Site Lease, which default
continues for 30 days following notice and demand for correction thereof to the Trustee, the
Town may exercise any and all remedies granted by law, except that no merger of this Site Lease
and of the Lease shall be deemed to occur as a result thereof and that so long as any of the
Certificates are outstanding and unpaid in accordance with the terms thereof, the Base Rentals
payable to the Trustee under the Lease shall continue to be paid to the Trustee, except as
provided in the Lease. In addition, so long as any of the Certificates are outstanding, this Site
Lease shall not be terminated except as described in Section 4 hereof.
Section 12. Quiet Enjoyment and Acknowledgment of Ownership. The Trustee at all
times during the term of this Site Lease shall peaceably and quietly have, hold and enjoy the
Leased Property, subject to the provisions of the Lease, and the Town hereby acknowledges that
the Trustee shall have a leasehold interest in the Leased Property and all improvements or
additions thereto, subject to the Lease.
Section 13. Waiver of Personal Liability. All liabilities under this Site Lease on the
part of the Trustee are solely liabilities of the Trustee, and the Town hereby releases each and
every, member, director, employee and officer of the Trustee of and from any personal or
individual liability under this Site Lease. No member, director, employee or officer of the
Trustee shall at any time or under any circumstances be individually or personally liable under
this Site Lease for anything done or omitted to be done by the Trustee hereunder.
Section 14. Taxes; Maintenance; Insurance.
(a) During the Lease Term of the Lease and in accordance with the provisions
of the Lease, the Town covenants and agrees to perform its obligations under the Lease
with respect to the payment of any and all assessments of any kind or character and all
taxes levied or assessed upon the Leased Property, and all maintenance costs, insurance
premiums and costs and utility charges in connection with the Leased Property, subject to
the terms of the Lease.
(b) In the event that (i) the Lease is terminated for any reason, (ii) this Site
Lease is not terminated and (iii) the Trustee subleases all or any portion of the Leased
Property or sells or assigns its interest in this Site Lease, the Trustee or any sublessee or
assignee of the Leased Property shall pay or cause to be paid when due, but in the case of
the Trustee solely from the proceeds of such leasing or sale, all taxes and assessments
imposed thereon and maintain the Leased Property in good condition.
(c) The provisions of the Lease shall govern with respect to the maintenance
of insurance hereunder during the Lease Term of the Lease. In the event that (a) the
Lease is terminated for any reason and (b) this Site Lease is not terminated and (c) the
Trustee subleases all or any portion of the Leased Property or sells or assigns its interest
6
4820-3534-6963.1
in this Site Lease, the Trustee or any sublessee or assignee of the Leased Property shall
obtain and keep in force, but in the case of the Trustee solely from the proceeds of such
subleasing or sale, (i) comprehensive general public liability insurance against claims for
personal injury, death or damage to property of others occurring on or in the Leased
Property in an amount not less than $600,000 and (ii) property insurance in an amount
not less than the full replacement value of the Building. All such insurance shall name
the Trustee, any sublessee or assignee and the Town as insureds. The Trustee and the
Town shall waive any rights of subrogation with respect to the Trustee, any lessee or
assignee, and the Town, and the members of their governing bodies, directors, officers,
agents and employees, while acting within the scope of their employment and each such
insurance policy shall contain such a waiver of subrogation by the issuer of such policy.
Section 15. Damage, Destruction or Condemnation. The provisions of the Lease shall
govern with respect to any damage, destruction or condemnation of the Leased Property during
the Lease Term of the Lease. In the event that (a) the Lease is terminated for any reason and (b)
this Site Lease is not terminated, and either (i) the Leased Property or any portion thereof is
damaged or destroyed, in whole or in part, by fire or other casualty, or (ii) title to or use of the
Leased Property or any part thereof shall be taken under the exercise of the power of eminent
domain, or (iii) title to or the use of all or any portion of the Leased Property shall be lost by
reason of a defect in the title thereto, the Town and the Trustee or any sublessee or assignee of
the Trustee shall cause the Net Proceeds of any insurance claim or condemnation award to be
applied to the prompt replacement, repair and restoration of the Site, the Building and any other
improvements and structures built on the Site or any portion thereof. Any Net Proceeds
remaining after such work has been completed will be paid to the Trustee or any sublessee or
assignee of the Trustee. If the Net Proceeds are insufficient to pay the full cost of the
replacement, repair and restoration, the Trustee or any sublessee or assignee shall complete the
work and pay any cost in excess of the Net Proceeds (provided, however, that the Trustee is
obligated to pay any such cost in excess of Net Proceeds only to the extent of any moneys
available therefor in any of the Funds or Accounts created under the Indenture).
The Town agrees that, to the extent permitted by law, in the event it brings an eminent
domain or condemnation proceeding with respect to the Site or the Building or any part thereof,
the appraised value of the condemned property shall be not less than (a) if the Certificates are
then subject to redemption under the Indenture, the redemption price of the Certificates or (b) if
the Certificates are not then subject to redemption, the amount necessary to pay the principal of
and interest on the Certificates to the first date on which the Certificates are subject to
redemption under the Indenture and to redeem the Certificates on such date.
Section 16. Reserved.
Section 17. Partial Invalidity. If any one or more of the terms, provisions, covenants or
conditions of this Site Lease shall to any extent be declared invalid, unenforceable, void or
voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or
decree of which becomes final, none of the remaining terms, provisions, covenants and
conditions of this Site Lease shall be affected thereby, and each provision of this Site Lease shall
be valid and enforceable to the fullest extent permitted by law.
7
4820-3534-6963.1
Section 18. Compliance with Requirements of Law. To the best knowledge of the
Town: (i) the Leased Property has at all times been operated in substantial compliance with all
Requirements of Law; (ii) all permits required by Requirements of Law in respect of the Leased
Property have been obtained and are in full force and effect and the Town is in substantial
compliance with the material terms and conditions of such permits; (iii) there is no pending
litigation, investigation, administrative or other proceeding of any kind before or by any
governmental authority or other Person relating to, or alleging, any violation of any
Requirements of Law in connection with the Leased Property and there are no grounds on which
any such litigation, investigation or proceedings might be commenced; and (iv) the Leased
Property is not subject to any judgment, injunction, writ, order or agreement respecting any
Requirements of Law.
Section 19. No Merger. The Town and the Trustee intend that the legal doctrine of
merger shall have no application to this Site Lease and that neither the execution and delivery of
the Lease by the Trustee and the Town nor the exercise of any remedies under this Site Lease or
the Lease shall operate to terminate or extinguish this Site Lease or the Lease, except as
specifically provided herein and therein.
Section 20. Binding Effect. This Site Lease shall inure to the benefit of and shall be
binding upon the Trustee and the Town and their respective successors and assigns.
Section 21. Trustee and Town Representatives. Whenever under the provisions
hereof the approval of the Trustee or the Town is required, or the Town or the Trustee is required
to take some action at the request of the other, unless otherwise provided, such approval or such
request shall be given for the Trustee by an Authorized Officer of the Trustee and for the Town
by an Authorized Officer of the Town, and the Trustee and the Town shall be authorized to act
on any such approval or request.
Section 22. Notices. All notices, statements, demands, consents, approvals,
authorizations, offers, designations, requests or other communications hereunder by either party
to the other shall be in writing and shall be sufficiently given and served upon the other party if
delivered personally or if mailed by United States registered mail, return receipt requested,
postage prepaid, at the addresses indicated in the Lease, or to such other addresses as the
respective parties may from time to time designate in writing.
Section 23. Amendments, Changes and Modifications. Except as otherwise provided
herein or in the Indenture, this Site Lease may only be amended, changed, modified or altered as
provided in the Indenture, and by the execution of a subsequent document in the same manner as
this Site Lease is executed.
Section 24. Events Occurring on Days that are not Business Days. If the date for
making any payment or the last day for performance of any act or the exercising of any right
under this Site Lease is a day that is not a Business Day, such payment may be made, such act
may be performed or such right may be exercised on the next succeeding Business Day, with the
same force and effect as if done on the nominal date provided in this Site Lease.
8
4820-3534-6963.1
Section 25. Applicable Law. The laws of the State of Colorado shall be applied in the
interpretation, execution and enforcement of this Site Lease, without regard to conflict of laws
principles.
Section 26. Section Headings. All section headings contained herein are for
convenience of reference only and are not intended to define or limit the scope of any provision
of this Site Lease.
Section 27. Execution. This Site Lease may be executed in any number of counterparts,
each of which shall be deemed to be an original but all together shall constitute but one and the
same Site Lease.
[remainder of page intentionally left blank]
9
4820-3534-6963.1
IN WITNESS WHEREOF, the Town and the Trustee have caused this Site Lease to be
executed by their respective officers thereunto duly authorized all as of the day and year first
above written.
TOWN OF ESTES PARK, COLORADO
[SEAL]
By
Mayor
Attest:
By
Town Clerk
UMB BANK, n.a., as Trustee
By
Name
[Signature Page to Site Lease]
10
4820-3534-6963.1
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this ___ day of May, 2013, by
William C. Pinkham, as Mayor, and by Jackie Williamson, as Town Clerk, of the Town of Estes
Park, Colorado.
WITNESS my hand and official seal.
Notary Public
[SEAL]
My Commission Expires:
11
4820-3534-6963.1
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of May, 2013 by
__________________________, as Vice President of UMB Bank, n.a..
WITNESS my hand and official seal.
Notary Public
[SEAL]
My Commission Expires:
4820-3534-6963.1
EXHIBIT A
DESCRIPTION OF THE SITE
4820-3534-6963.1
EXHIBIT B
DESCRIPTION OF THE BUILDING
The Town Hall, a steel framed two-story building containing approximately 30,500
square feet located at 170 MacGregor Avenue, Estes Park, Colorado.
Description of Equipment
All fixtures and machinery located in the Building, including but not limited to all
lighting, heating, plumbing, ventilating and air conditioning fixtures, inside telephone wiring and
connecting blocks/jacks, plants, mirrors, floor coverings, intercom systems, built-in kitchen
appliances, sprinkler systems and controls and smoke/fire detectors.
4820-3534-6963.1
EXHIBIT C
PERMITTED ENCUMBRANCES
4850-2929-4355.1
LEASE PURCHASE AGREEMENT
by and between
UMB BANK, n.a.,
in its capacity as Trustee under an Indenture of Trust dated the date hereof,
as Sublessor
and
TOWN OF ESTES PARK, COLORADO,
as Sublessee
Dated May __, 2013
TABLE OF CONTENTS
Page
4850-2929-4355.1
ARTICLE I
DEFINITIONS ............................................................................................................................... 2
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.01. Representations, Covenants and Warranties by Trustee .................................. 6
Section 2.02. Representations, Covenants and Warranties by Town .................................... 7
ARTICLE III
DEMISING CLAUSE; ENJOYMENT OF LEASED PROPERTY
Section 3.01. Demising Clause .............................................................................................. 9
Section 3.02. Enjoyment of Leased Property......................................................................... 9
ARTICLE IV
LEASE TERM; TERMINATION OF LEASE
Section 4.01. Duration of Lease Term; Town’s Annual Right to Renew Lease ................. 10
Section 4.02. Termination of Lease Term ........................................................................... 11
ARTICLE V
RESERVED ................................................................................................................................. 12
ARTICLE VI
BASE RENTALS AND ADDITIONAL RENTALS; EVENT OF NONAPPROPRIATION
Section 6.01. Payment of Base Rentals; Purchase Option Price .......................................... 12
Section 6.02. Payment of Additional Rentals ...................................................................... 13
Section 6.03. Manner of Payment; Unconditional Obligations ........................................... 13
Section 6.04. Nonappropriation ........................................................................................... 14
Section 6.05. Limitations on Obligations of Town .............................................................. 15
ARTICLE VII
OPERATION AND MAINTENANCE OF LEASED PROPERTY
Section 7.01. Taxes, Utilities and Insurance ........................................................................ 15
Section 7.02. Maintenance and Operation of Leased Property ............................................ 17
ARTICLE VIII
OWNERSHIP, ENCUMBRANCES, MODIFICATIONS OR ADDITIONS TO LEASED
PROPERTY; DAMAGE OR CONDEMNATION OF LEASED PROPERTY
Section 8.01. Ownership of Leased Property....................................................................... 17
Section 8.02. Limitations on Disposition of and Encumbrances on Leased Property ......... 18
Section 8.03. Granting of Easements ................................................................................... 18
Section 8.04. Assignment and Subleasing by Town ............................................................ 19
Section 8.05. Title Insurance ............................................................................................... 19
Section 8.06. Modification of Leased Property ................................................................... 19
ii
4850-2929-4355.1
Section 8.07. Installation, Replacement and Substitution of Equipment ............................. 20
Section 8.08. Damage to, Condemnation of, Material Defect in or Loss of Title to Leased
Property .......................................................................................................... 21
ARTICLE IX
TOWN’S PURCHASE OPTION
Section 9.01. Town’s Purchase Option ................................................................................ 22
Section 9.02. Exercise of Town’s Purchase Option ............................................................. 23
Section 9.03. Conveyance of Leased Property to Town at End of Scheduled Lease Term . 23
ARTICLE X
GENERAL COVENANTS
Section 10.01. Further Assurances and Corrective Instruments ............................................ 23
Section 10.02. Compliance with Requirements of Law ........................................................ 24
Section 10.03. Participation in Legal Actions ....................................................................... 25
Section 10.04. Covenant to Comply with Internal Revenue Code ........................................ 25
Section 10.05. Reimbursement .............................................................................................. 26
Section 10.06. Payment of Fees and Expenses of the Trustee ............................................... 27
Section 10.07. Payments to Rebate Fund ............................................................................... 27
Section 10.08. Authorization of Permitted Investments with Term in Excess of Five Years 27
Section 10.09. Compliance with Requirements ..................................................................... 27
Section 10.10. Immunity and Indemnification ...................................................................... 27
Section 10.11. Access To Leased Property ............................................................................ 28
ARTICLE XI
LIMITS ON OBLIGATIONS OF TRUSTEE
Section 11.01. Disclaimer of Warranties ............................................................................... 28
Section 11.02. Financial Obligations of Trustee Limited to Available Funds ....................... 28
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.01. Events of Default Defined ............................................................................. 28
Section 12.02. Remedies on Default ...................................................................................... 29
Section 12.03. Limitations on Remedies ............................................................................... 30
Section 12.04. No Remedy Exclusive.................................................................................... 31
Section 12.05. Waivers .......................................................................................................... 31
Section 12.06. Reserved ......................................................................................................... 31
Section 12.07. Agreement to Pay Attorneys’ Fees and Expenses ......................................... 31
Section 12.08. Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws31
ARTICLE XIII
TRANSFERS OF INTERESTS IN LEASE OR LEASED PROPERTY
Section 13.01. Trustee’s Rights, Title and Interest in Trust for Benefit of Owners; Successor
Trustee; Assignment by Trustee .................................................................... 32
Section 13.02. Transfer of Town’s Interest in Lease and Leased Property Prohibited ......... 32
iii
4850-2929-4355.1
ARTICLE XIV
MISCELLANEOUS
Section 14.01. Binding Effect ................................................................................................ 32
Section 14.02. Acknowledgement of Indenture ..................................................................... 32
Section 14.03. Trustee and Town Representatives ................................................................ 33
Section 14.04. Manner of Giving Notices ............................................................................. 33
Section 14.05. No Individual Liability .................................................................................. 33
Section 14.06. Amendments, Changes and Modifications .................................................... 33
Section 14.07. Events Occurring on Days that are not Business Days .................................. 33
Section 14.08. Severability .................................................................................................... 33
Section 14.09. Captions ......................................................................................................... 33
Section 14.10. Applicable Law .............................................................................................. 34
Section 14.11. Execution in Counterparts .............................................................................. 34
Section 14.12. Amounts Remaining in Funds ....................................................................... 34
Section 14.13. Net Lease ....................................................................................................... 34
Section 14.14. No Merger ...................................................................................................... 34
EXHIBIT A DESCRIPTION OF THE LEASED PROPERTY
EXHIBIT B BASE RENTALS PAYMENT SCHEDULE
EXHIBIT C PERMITTED ENCUMBRANCES
4850-2929-4355.1
LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT (this “Lease”) is dated May __, 2013 and
is entered into by and between UMB BANK, n.a., a national banking association duly organized
and validly existing under the laws of the United States of America, in its capacity as trustee
under the Indenture (defined herein) (the “Trustee”) as sublessor, and the TOWN OF ESTES
PARK, COLORADO (the “Town”), as sublessee.
W I T N E S S E T H :
WHEREAS, the Town is a statutory town and political subdivision of the State of
Colorado (the “State”) duly organized and validly existing under the laws of the State; and
WHEREAS, the Board of Trustees of the Town (the “Board”) is authorized, pursuant to
Section 31-15-713(1)(c), Colorado Revised Statutes, to lease any real estate, together with any
facilities thereon, owned by the Town when deemed by the Board to be in the best interest of the
Town; and
WHEREAS, the Board is authorized, pursuant to Section 31-15-101(1)(d), Colorado
Revised Statutes, to acquire, hold and lease property, both real and personal; and
WHEREAS, the Town has an immediate need for a multi-purpose events center and new
stall barns at the Stanley Park Fairgrounds complex (the “Project”); and
WHEREAS, the Town owns (a) the land that is legally described in Exhibit A attached
hereto (the “Site”); and (b) the building located on the Site and located at 170 MacGregor
Avenue and being used as the Town Hall (the “Building”); and
WHEREAS, in order to provide moneys for the construction of the Project, the Board has
determined that it is in the best interest of the Town to lease the Site and the Building to the
Trustee pursuant to the Site Lease dated May __, 2013 (the “Site Lease”), between the Town, as
lessor, and the Trustee, as lessee, and to lease the Site and the Building (collectively defined as
the “Leased Property”) back from the Trustee pursuant to this Lease; and
WHEREAS, the obligation of the Town to pay Base Rentals and Additional Rentals (both
as hereinafter defined) hereunder shall be from year to year only, shall constitute currently
budgeted expenditures of the Town, shall not constitute a mandatory charge or requirement in
any ensuing budget year, and shall not constitute a general obligation or a multiple fiscal year
direct or indirect debt or other financial obligation whatsoever of the Town within the meaning
of any constitutional or statutory limitation or requirement concerning the creation of
indebtedness, nor a mandatory payment obligation of the Town in any ensuing fiscal year
beyond any fiscal year during which this Lease shall be in effect; and
WHEREAS, the execution, performance and delivery of this Lease and the Site Lease
have been authorized, approved and directed by the Board by an ordinance finally passed and
adopted by the Board; and
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WHEREAS, the Trustee (a) is a national banking association that is duly organized,
validly existing and in good standing under the laws of the United States of America and
authorized to exercise trust powers, (b) is duly qualified to do business in the State, (c) is the
lessee of the Leased Property pursuant to the Site Lease and (d) is authorized, under its articles of
association and bylaws, action of its board of directors and applicable law, to act as trustee under
the Indenture of Trust dated May __, 2013, executed by the Trustee (the “Indenture”), to lease
the Leased Property from the Town, to sublease the Leased Property to the Town and to execute,
deliver and perform its obligations under this Lease; and
WHEREAS, the Trustee has determined that the sublease of the Leased Property to the
Town pursuant to this Lease is in the best interests of the Owners (as defined herein) of the
Certificates (as defined herein) to be executed and delivered pursuant to the Indenture; and
WHEREAS, the Trustee desires to sublease the Leased Property to the Town and the
Town desires to sublease the Leased Property from the Trustee pursuant to this Lease; and
WHEREAS, the execution, delivery and performance of this Lease by the Trustee has
been duly authorized by the Trustee and, upon the execution and delivery of this Lease by the
Trustee and the Town, this Lease will be enforceable against the Trustee in accordance with its
terms, limited only by bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally, by equitable principles, whether considered at law or in
equity, by the exercise by the State of Colorado and its governmental bodies of the police power
inherent in the sovereignty of the State of Colorado and by the exercise by the United States of
America of the powers delegated to it by the Constitution of the United States of America; and
WHEREAS, the execution, delivery and performance of this Lease by the Town has been
duly authorized by the Town and, upon the execution and delivery of this Lease by the Town and
the Trustee, this Lease will be enforceable against the Town in accordance with its terms, limited
only by bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights generally, by equitable principles, whether considered at law or in equity, by the
exercise by the State of Colorado and its governmental bodies of the police power inherent in the
sovereignty of the State of Colorado and by the exercise by the United States of America of the
powers delegated to it by the Constitution of the United States of America.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants and
the representations, covenants and warranties herein contained, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
The following capitalized terms shall have the following meanings in this Lease:
“Additional Rentals” means the costs and expenses incurred by the Town in performing
its obligations under this Lease with respect to the Leased Property, this Lease, the Site Lease
and any matter related thereto; the costs and expenses incurred by the Town in paying the
reasonable fees and expenses of the Trustee pursuant to Sections 10.03 and10.06 hereof; taxes,
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insurance premiums, utility charges, maintenance, upkeep, repair, improvement and replacement
in respect of the Leased Property; all amounts paid by the Town to the Trustee to fund the
Rebate Fund pursuant to Section 10.07 hereof; all other costs and expenses incurred by the Town
in connection with the foregoing; and all other charges and costs (together with all interest and
penalties that may accrue thereon) in the event that the Town shall fail to pay the same, as
specifically set forth herein which the Town assumes or agrees to pay as Additional Rentals
hereunder with respect to the Leased Property. Additional Rentals do not include the Base
Rentals or the Purchase Option Price.
“Authorized Officer” means (a) in the case of the Town, the Mayor, the Mayor Pro Tem,
the Town Administrator, the Assistant Town Administrator, the Finance Director, or any other
person authorized by ordinance or resolution of the Board to perform any act or execute any
document; and (b) in the case of the Trustee, any person authorized to perform any act or sign
any document by or pursuant to the bylaws or any resolution of the governing body of the
Trustee.
“Base Rentals” means the payments payable by the Town during the Lease Term
pursuant to Section 6.01 hereof and as set forth in Exhibit B, for and in consideration of the right
to use the Leased Property during the Lease Term.
“Base Rental Payment Dates” means June 1 and December 1 of each Fiscal Year.
“Board” means the Board of Trustees of the Town.
“Building” means the building located on the Site, as described in Exhibit A to this
Lease.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banks
in New York, New York or Denver, Colorado are authorized by law to remain closed.
“Certificates” is defined in the Indenture.
“Certificate Fund” is defined in the Indenture.
“Code” means the Internal Revenue Code of 1986, as amended, and the Treasury
regulations promulgated thereunder.
“Equipment” means the items of equipment, machinery and other personal property
included in the Leased Property, if any, described in Exhibit A hereto, as such items of
equipment, machinery and other personal property are replaced or substituted for pursuant to
Sections 8.06, 8.07 or 8.08 of this Lease, and less any items of equipment, machinery or other
personal property released from this Lease.
“Event of Default” means an event of default described in Section 12.01 hereof.
“Event of Nonappropriation” means an event described in Section 6.04 hereof.
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“Fiscal Year” means the fiscal year of the Town, which begins on January 1 and ends on
December 31 of each year.
“Force Majeure” means any event that is not within the control of the Town, including,
without limitation, 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 of America or of
the State or any of their departments, agencies or officials or any civil or military authority;
insurrection; riots; landslides; earthquakes; fires; storms; droughts; floods; explosions; or
breakage or accidents affecting machinery, transmission pipes or canals.
“Indenture” means the Indenture of Trust dated the date hereof providing for the
execution and delivery of the Certificates, and any amendment or supplement thereto.
“Independent Counsel” is defined in the Indenture.
“Initial Term” means the portion of the Lease Term that ends on December 31, 2013.
“Lease” means this Lease Purchase Agreement and any amendment or supplement
hereto.
“Lease Remedies” means any or all of the remedial steps provided in Section 12.02 of
this Lease whenever an Event of Default hereunder has happened and is continuing.
“Lease Term” means the time during which the Town is the sublessee of the Leased
Property under this Lease, including the Initial Term and all Renewal Terms as provided in and
subject to Article IV and Article VI of this Lease; certain provisions of this Lease survive the
termination of the Lease Term, as provided in Section 4.02 of this Lease.
“Leased Property” means the Trustee’s interest in, collectively, the Site, the Building and
the Equipment, described in Exhibit A attached hereto.
“Net Proceeds” means (a) the gross proceeds received from any event referred to in
Section 8.07(b) hereof or Section 8.08(a) hereof, minus (b) all expenses incurred in the collection
of such gross proceeds or award and all other fees, expenses and payments due to the Trustee.
The trade in of Equipment pursuant to Section 8.07(b)(ii) hereof shall be deemed to have
generated gross proceeds for purposes of this definition in an amount equal to the credit received
upon such trade in.
“Outstanding” is defined in the Indenture.
“Owners” is defined in the Indenture.
“Permitted Encumbrances” means, as of any particular time, (a) liens for taxes and
assessments not then delinquent, or liens which may remain unpaid pursuant to Section 8.02(b)
hereof; (b) this Lease, the Indenture and the Site Lease; (c) utility, access and other easements,
licenses, rights of way, rights and privileges, restrictions and exceptions which an Authorized
Officer of the Town certifies will not materially adversely affect the value, or interfere with or
impair the effective use or operation, of the Leased Property, including easements granted
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pursuant to Section 8.03 hereof; (d) any financing statements filed with respect to the Trustee’s
interest in the Leased Property, this Lease or the Site Lease; (e) any encumbrance represented by
financing statements filed to perfect purchase money security interests in any portion of or all of
the Leased Property; (f) any claim filed pursuant to C.R.S. § 38-26-107; (g) any applicable
zoning requirements; (h) existing leases, easements, covenants, restrictions, liens and
encumbrances (if any) to which title to the Leased Property was subject when a leasehold interest
therein was conveyed to the Trustee pursuant to the Site Lease, as shown on Exhibit C hereto and
which do not interfere in any material way with the use of the Leased Property; and (i) such
minor defects, irregularities, encumbrances and clouds on title as normally exist with respect to
property of the general character of the Leased Property and as do not, in the opinion of the
Trustee, materially impair title to the Leased Property.
“Person” means any natural person, firm, corporation, partnership, limited liability
company, state, political subdivision of any state, other public body or other organization or
association.
“Project” means the acquisition, construction, renovation and equipping of a multi-
purpose events center and new stall barns at the Stanley Park Fairgrounds complex.
“Purchase Option Price” means the amount that the Town must pay to purchase the
interest of the Trustee in the Leased Property pursuant to Section 9.01 hereof.
“Rebate Fund” is defined in the Indenture.
“Renewal Term” means the twelve-month period, commencing on January 1 of each year
and ending on December 31 of such year, for which the Town renews the Lease Term.
“Requirement of Law” means any federal, state or local statute, ordinance, rule or
regulation, any judicial or administrative order (whether or not on consent), request or judgment,
any common law doctrine or theory, any provision or condition of any permit or any other
binding determination of any governmental authority relating to the ownership or operation of
property, including but not limited to any of the foregoing relating to zoning, environmental,
health or safety issues.
“Revenues” means (a) all amounts payable by or on behalf of the Town with respect to
the Leased Property pursuant to this Lease including, but not limited to, all Base Rentals, the
Purchase Option Price and Net Proceeds, but not including Additional Rentals payable
hereunder; (b) any portion of the proceeds of the Certificates deposited with the Trustee in the
Certificate Fund or the Project Account; (c) any earnings on moneys on deposit in the Certificate
Fund and the Project Account; (d) all other revenues derived from this Lease, excluding
Additional Rentals; and (e) any other moneys to which the Trustee may be entitled for the benefit
of the Owners of the Certificates.
“Scheduled Lease Term” means the period from the commencement of the Initial Term
through the date described in Section 4.01 hereof.
“Site” means the real estate or interests in real estate, the legal description of which is set
forth in Exhibit A to this Lease.
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“Site Lease” means the Site Lease dated the date hereof between the Town, as lessor, and
the Trustee, in its capacity as trustee under the Indenture, as lessee, pursuant to which the Leased
Property is being leased by the Town to the Trustee, and any amendment or supplement thereto.
“State” means the State of Colorado.
“Town” means the Town of Estes Park, Colorado, and any successor thereto.
“Trust Estate” is defined in the Indenture.
“Trustee” means UMB Bank, n.a., or any successor thereto, in its capacity as Trustee
under the Indenture, or any successor trustee under the Indenture. Pursuant to Section 13.01
hereof, any successor trustee under the Indenture will automatically succeed to the interest of the
previous trustee in the Leased Property and the previous trustee’s rights, title, interest and
obligations in, to and under this Lease.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.01. Representations, Covenants and Warranties by Trustee. The Trustee
represents, covenants and warrants that:
(a) The Trustee (i) is a national banking association that is duly organized,
validly existing and in good standing under the laws of the United States of America and
authorized to exercise trust powers, (ii) is duly qualified to do business in the State, (iii) is
the lessee of the Leased Property pursuant to the Site Lease and (iv) is authorized, under
its articles of association and bylaws, action of its board of directors and applicable law,
to act as trustee under the Indenture, to lease the Leased Property from the Town, to
sublease the Leased Property to the Town and to execute, deliver and perform its
obligations under this Lease.
(b) The sublease of the Leased Property to the Town pursuant to this Lease is
in the best interests of the Owners of the Certificates.
(c) The execution, delivery and performance of this Lease by the Trustee has
been duly authorized by the Trustee.
(d) This Lease is enforceable against the Trustee in accordance with its terms,
limited only by bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally, by equitable principles, whether considered at
law or in equity, by the exercise by the State and its governmental bodies of the police
power inherent in the sovereignty of the State and by the exercise by the United States of
America of the powers delegated to it by the Constitution of the United States of
America.
(e) The execution, delivery and performance of the terms of this Lease by the
Trustee does not and will not conflict with or result in a breach of the terms, conditions or
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provisions of any restriction or any agreement or instrument to which the Trustee is now
a party or by which the Trustee is bound, or constitute a default under any of the
foregoing or, except as specifically provided in this Lease, the Site Lease or the
Indenture, result in the creation or imposition of a lien or encumbrance whatsoever upon
any of the property or assets of the Trustee.
(f) There is no litigation or proceeding pending or threatened against the
Trustee or any other Person affecting the right of the Trustee to execute, deliver or
perform its obligations under this Lease.
(g) The Trustee acknowledges and recognizes that this Lease will be
terminated upon the occurrence of an Event of Nonappropriation, and that a failure by the
Town to appropriate funds in a manner that results in an Event of Nonappropriation is
solely within the discretion of the Board.
Section 2.02. Representations, Covenants and Warranties by Town. The Town
represents, covenants and warrants that:
(a) The Town is a political subdivision of the State duly organized and validly
existing under the laws of the State.
(b) The Town is authorized, under Section 31-15-101(1)(d), C.R.S., to
sublease the Leased Property from the Trustee and to execute, deliver and perform its
obligations under this Lease.
(c) The sublease of the Leased Property from the Trustee pursuant to this
Lease serves a public purpose and is in the best interests of the Town and its residents.
(d) The execution, delivery and performance of this Lease by the Town has
been duly authorized by the Board.
(e) This Lease is enforceable against the Town in accordance with its terms,
limited only by bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally, by equitable principles, whether considered at
law or in equity, by the exercise by the State and its governmental bodies of the police
power inherent in the sovereignty of the State and by the exercise by the United States of
America of the powers delegated to it by the Constitution of the United States of
America.
(f) The execution, delivery and performance of the terms of this Lease by the
Town does not and will not conflict with or result in a breach of the terms, conditions or
provisions of any restriction or any agreement or instrument to which the Town is now a
party or by which the Town is bound, or constitute a default under any of the foregoing
or, except as specifically provided in this Lease or the Site Lease, result in the creation or
imposition of a lien or encumbrance whatsoever upon any of the property or assets of the
Town.
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(g) There is no litigation or proceeding pending or threatened against the
Town or any other Person affecting the right of the Town to execute, deliver or perform
its obligations under this Lease.
(h) The Town will recognize economic and other benefits by the subleasing of
the Leased Property pursuant to this Lease; the Leased Property is property that is
necessary and essential to the Town’s purpose and operations; the Town expects that the
Leased Property will adequately serve the needs for which it is being leased throughout
the Scheduled Lease Term.
(i) The Base Rentals payable in each Fiscal Year during the Lease Term are
not more than the fair value of the use of the Leased Property during such Fiscal Year.
The Base Rentals and Additional Rentals payable in each Fiscal Year during the Lease
Term do not exceed a reasonable amount so as to place the Town under an economic
compulsion (i) to continue this Lease beyond any Fiscal Year, (ii) not to exercise its right
to terminate this Lease at any time through an Event of Nonappropriation or (iii) to
exercise any of its options to purchase the Leased Property hereunder The Purchase
Option Price is the Town’s best estimate of the fair purchase price of the Leased Property
at the time of exercise of the Town’s option to purchase the Leased Property by paying
the Purchase Option Price. The Scheduled Lease Term does not exceed the weighted
average useful life of the Leased Property. In making the representations, covenants and
warranties set forth above in this subsection, the Town has given due consideration to the
Leased Property, the purposes for which the Leased Property will be used by the Town,
the benefits to the Town from the use of the Leased Property, the Town’s options to
purchase the Leased Property hereunder and the terms of this Lease governing the use of,
and the Town’s options to purchase, the Leased Property.
(j) The Town presently intends and expects to continue this Lease annually
until full title to the Leased Property is acquired by the Town pursuant to this Lease; but
this representation does not obligate or otherwise bind the Town.
(k) The Town is not aware of any current violation of any Requirement of
Law relating to the Leased Property.
(l) The Town has appropriated sufficient moneys in its General Fund to pay
the Base Rentals payable in the current Fiscal Year and the Additional Rentals estimated
to be payable in the current Fiscal Year and, upon commencement of the Lease Term,
such moneys will be encumbered to pay such Base Rentals and Additional Rentals.
(m) The acquisition of a leasehold interest in the Leased Property under the
terms and conditions provided for in this Lease, is necessary, convenient, and in
furtherance of the Town’s governmental and proprietary purposes and functions, and no
portion of the Leased Property will be used directly or indirectly in any trade or business
carried on by any person other than a governmental unit of the State except with the prior
approval of bond counsel.
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(n) To the best knowledge of the Town, after due inquiry, (i) no dangerous,
toxic or hazardous pollutants, contaminants, chemicals, waste, materials or substances, as
defined in or governed by the provisions of any federal, state or local law, statute, code,
ordinance, regulation, requirement or rule relating thereto (collectively, “Environmental
Regulations”), and also including urea-formaldehyde, polychlorinated biphenyls,
asbestos, asbestos containing materials, nuclear fuel or waste, radioactive materials,
explosives, carcinogens and petroleum products, or any other waste, material, substance,
pollutant or contaminant which would subject the owner of the Site to any damages,
penalties or liabilities under any applicable Environmental Regulation (collectively,
“Hazardous Substances”) are now or have been stored, located, generated, produced,
processed, treated, transported, incorporated, discharged, emitted, released, deposited or
disposed of in, upon, under, over or from the Site in violation of any Environmental
Regulation; (ii) no threat exists of a discharge, release or emission of a Hazardous
Substance upon or from the Site into the environment; (iii) the Site has not been used as
or for a mine, landfill, a dump or other disposal facility, industrial or manufacturing
facility, or a gasoline service station; (iv) no underground storage tank is located at the
Site or, if previously located at the Site, has been removed therefrom; (v) no violation of
any Environmental Regulation now exists relating to the Site, no notice of any such
violation or any alleged violation thereof has been issued or given by any governmental
entity or agency, and there is not now any investigation or report involving the Site by
any governmental entity or agency which in any way relates to Hazardous Substances;
(vi) no person, party or private or governmental agency or entity has given any notice of
or asserted any claim, cause of action, penalty, cost or demand for payment or
compensation, whether or not involving any injury or threatened injury to human health,
the environment or natural resources, resulting or allegedly resulting from any activity or
event described in (i) above; (vii) there are not now any actions, suits, proceedings or
damage settlements relating in any way to Hazardous Substances, in, upon, under, over or
from the Site; (viii) the Site is not listed in the United States Environmental Protection
Agency’s National Priorities List of Hazardous Waste Sites or any other list of Hazardous
Substance sites maintained by any federal, state or local governmental agency; and (ix)
the Site is not subject to any lien or claim for lien or threat of a lien in favor of any
governmental entity or agency as a result of any release or threatened release of any
Hazardous Substance.
ARTICLE III
DEMISING CLAUSE; ENJOYMENT OF LEASED PROPERTY
Section 3.01. Demising Clause. The Trustee demises and leases the Leased Property to
the Town, and the Town leases the Leased Property from the Trustee, in accordance with the
terms of this Lease, subject only to Permitted Encumbrances, to have and to hold for the Lease
Term.
Section 3.02. Enjoyment of Leased Property. The Trustee covenants that, during the
Lease Term and so long as no Event of Default shall have occurred, the Town shall peaceably
and quietly have, hold and enjoy the Leased Property without suit, trouble or hindrance from the
Trustee, except as expressly required or permitted by this Lease. The Trustee shall, at the
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request of the Town and at the cost of the Town, join and cooperate fully in any legal action in
which the Town asserts its right to such possession and enjoyment, or which involves the
imposition of any taxes or other governmental charges on or in connection with the Leased
Property. In addition, the Town may at its own expense join in any legal action affecting its
possession and enjoyment of the Leased Property and shall be joined in any action affecting its
liabilities hereunder.
The provisions of this Article III shall be subject to the Trustee’s right to inspect the
Leased Property. The Town also hereby consents to the inspection by the Trustee of all books,
accounts and records maintained by the Town with respect to the Leased Property and this Lease.
ARTICLE IV
LEASE TERM; TERMINATION OF LEASE
Section 4.01. Duration of Lease Term; Town’s Annual Right to Renew Lease. The
Lease Term shall commence as of May __, 2013 and continue through the last day of the current
Fiscal Year of the Town (the “Initial Term”). SUBJECT TO THE PROVISIONS OF SECTION
4.02 HEREOF, the Lease Term may be renewed at the end of the Initial Term and at the end of
each Renewal Term thereafter for a term of twelve months coinciding with the next succeeding
Fiscal Year of the Town (a “Renewal Term”), except that the Renewal Term beginning on
January 1, 2027 shall terminate on December 1, 2027. The Town shall have the right to annually
renew the Lease Term unless (a) the Town gives written notice to the Trustee not less than 90
days prior to the end of the Initial Term or the then current Renewal Term of the Town’s
intention not to renew this Lease at the end of the Initial Term or the then current Renewal Term,
or (b) an Event of Nonappropriation shall have occurred with respect to a Renewal Term
occurring after the Initial Term or any then current Renewal Term. The terms and conditions
during any Renewal Term shall be the same as the terms and conditions during the Initial Term,
except for the amount of Base Rentals and Additional Rentals to be paid during such Renewal
Term. The Lease Term, including the Initial Term and all Renewal Terms, does not exceed the
weighted average useful life of the Leased Property. If this Lease involves both real property
and other property, the cost of such real property is amortized over a period not exceeding its
weighted average useful life, and the cost of such other property is separately amortized over a
period not exceeding its weighted average useful life. The combined amortization of such costs
is set forth in Exhibit B, attached hereto and made a part hereof.
Except as otherwise provided in Section 4.02 hereof, the exercise of the Town’s annual
option to renew this Lease shall be conclusively determined by whether or not the Board has, on
or before the last day of each Fiscal Year, duly enacted an appropriation ordinance or resolution
for the ensuing Fiscal Year which includes (i) by specific line item reference sufficient amounts
authorized and directed to be used to pay all the Base Rentals and (ii) sufficient amounts to pay
such Additional Rentals as are estimated to become due, all as further provided in Section 6.04
of this Lease. The officer of the Town at any time charged with the responsibility of formulating
budget proposals is hereby directed to include in the annual budget proposals submitted to the
Board, items for all payments required under this Lease for the ensuing Fiscal Year, until such
time (if any) as the Town’s Board may determine not to renew this Lease; it being the intention
of the Board that any decision to renew or not to renew this Lease shall be made solely by the
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Board and not by any other official of the Town. Said officer shall also include in said budget
proposal the total amount to be expended by the Town during the ensuing Fiscal Year for
payment obligations under all lease-purchase agreements involving real property, including this
Lease; the total maximum payment liability of the Town under all lease-purchase agreements
involving real property, including this Lease, over the entire terms of such agreements, including
all optional renewal terms; the total amount to be expended by the Town during the ensuing
Fiscal Year for payment obligations under all lease-purchase agreements other than those
involving real property, including this Lease (if applicable); and the total maximum payment
liability of the Town under all lease-purchase agreements other than those involving real
property, including this Lease (if applicable), over the entire term of such agreements, including
all optional renewal terms. Each budget required by law to be filed with the State Department of
Local Affairs, Division of Local Government, shall include a supplemental schedule that
contains the foregoing information. The Town shall in any event, promptly furnish the Trustee
with copies of its annual budget within seven days after the budget is adopted, but not later than
the fourth day after the end of such Fiscal Year, provided that telephonic notice is provided by
the Town to the Trustee of the adoption of the budget not later than the end of the first Business
Day of the next succeeding Fiscal Year. If such budget and appropriation are not adopted, the
Trustee shall notify the Town in writing as further provided in Section 6.04 hereof.
Section 4.02. Termination of Lease Term. The Lease Term shall terminate upon the
earliest of any of the following events:
(a) the last day of any Fiscal Year during which there has occurred an Event
of Nonappropriation pursuant to Section 4.01 and Article VI of this Lease (provided that
the Lease Term will be deemed to have been renewed and, therefore, not terminated if the
Event of Nonappropriation is cured as provided in Section 6.04 hereof);
(b) the conveyance of all of the Leased Property to the Town upon payment of
the Purchase Option Price or all Base Rentals and Additional Rentals as provided in
Article IX of this Lease, and discharge of the Indenture as it relates to this Lease; or
(c) an Event of Default and termination of this Lease by the Trustee under
Article XII of this Lease.
An election not to renew the Lease Term shall terminate all unaccrued obligations of the
Town under this Lease, and shall terminate the Town’s rights of possession under this Lease at
the end of the last day of the Fiscal Year for which this Lease shall be in effect (except to the
extent of the holdover provisions of Section 12.02(d)(i) hereof, and except for any conveyance
pursuant to Article IX of this Lease); but all other provisions of this Lease, including all
obligations of the Town accrued prior to such termination and all obligations of the Trustee with
respect to the Owners and the receipt and disbursement of funds and all rights and remedies of
the Trustee specifically provided herein, shall be continuing until the Indenture is discharged
with respect to this Lease. Except for an event described in subparagraph (b) above, upon
termination of this Lease, the Town agrees to peaceful delivery of the Leased Property to the
Trustee or its assigns at such reasonable location specified by the Trustee.
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ARTICLE V
RESERVED
ARTICLE VI
BASE RENTALS AND ADDITIONAL RENTALS; EVENT OF NONAPPROPRIATION
Section 6.01. Payment of Base Rentals; Purchase Option Price.
(a) The Town shall pay Base Rentals directly to the Trustee during the Lease
Term in immediately available funds in the “Total Base Rentals” amounts and on the
Base Rental Payment Dates set forth in Exhibit B hereto, as it may be modified from time
to time; provided, however, that there shall be credited against the amount of Base
Rentals payable on any Base Rental Payment Date the amount on deposit in the
Certificate Fund representing (i) accrued interest from the sale of Certificates,
(ii) earnings from the investment of moneys in the Certificate Fund, (iii) moneys
transferred as provided in the Indenture and (iv) moneys delivered to the Trustee by the
Trustee, the Town or any other Person that are accompanied by instructions to apply the
same to the payment of Base Rentals or to deposit the same in the Certificate Fund.
Thirty days prior to each Base Rental Payment Date, the Trustee shall notify the Town as
to the exact amount that will be credited against the Base Rentals due on such date. If
further amounts that are to be credited against Base Rentals accrue during such 30 day
period, such amount shall be carried over to be applied as a reduction of the Base Rentals
payable on the next succeeding Base Rental Payment Date.
(b) A portion of each payment of Base Rentals is paid as, and represents the
payment of, interest, and Exhibit B hereto, as from time to time amended and
supplemented, sets forth the interest component of each payment of Base Rentals. Upon
receipt by the Trustee of each payment of Base Rentals, the Trustee shall apply the
amount of each Base Rentals payment in the following manner and order:
(i) FIRST, the amount of such payment of Base Rentals designated
and paid as interest under Exhibit B, as from time to time amended or
supplemented, plus the amount of any past due interest on the Certificates, shall
be deposited in the Interest Account of the Certificate Fund; and
(ii) SECOND, the remaining portion of such payment of Base Rentals
shall be deposited in the Principal Account of the Certificate Fund.
(c) The Town may, at any time during the Lease Term, pay the then
applicable Purchase Option Price related to the Leased Property for the purpose of
terminating this Lease and purchasing the Leased Property shown on Exhibit A, as
further provided in Article IX of this Lease. Certificates will be redeemed on the first
date on which the Certificates may be redeemed following the payment of such Purchase
Option Price. The Town shall give the Trustee notice of its intention to exercise its
option not less than 45 days in advance of the date of exercise and shall deposit with the
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Trustee on or prior to the date of redemption an amount equal to the Purchase Option
Price.
Base Rentals set forth in Exhibit B to this Lease shall be recalculated in the event of any
partial redemption of the Certificates prior to their respective principal payment dates, in order
that such Base Rentals shall be paid in such amounts and at such times as will provide sufficient
moneys to pay principal and interest on the Certificates which remain Outstanding.
Section 6.02. Payment of Additional Rentals. The Town shall, subject only to
Sections 7.01(b) and 8.02(b) hereof and the other Sections of this Article, pay Additional Rentals
directly to the Persons to which they are owed (which, in the case of payments required to be
made to fund the Rebate Fund pursuant to the Indenture, is the Trustee) in immediately available
funds in the amounts and on the dates on which they are due.
If the Town’s estimates of Additional Rentals for any Fiscal Year are not itemized in the
budget required to be furnished to the Trustee under Section 4.01 of this Lease, the Town shall
furnish an itemization of such estimated Additional Rentals to the Trustee on or before the last
day of such Fiscal Year.
Section 6.03. Manner of Payment; Unconditional Obligations. The Base Rentals and,
if paid, the Purchase Option Price, shall be paid by the Town by certified funds or other method
of payment acceptable to the Trustee in lawful money of the United States of America to the
Trustee at its Operations Center for deposit in accordance with the provisions of the Indenture.
The obligation of the Town to pay the Base Rentals and Additional Rentals, during the Initial
Term and each Renewal Term, shall be absolute and unconditional, payable from all legally
available sources, and payment of the Base Rentals and Additional Rentals shall not be abated
through accident or unforeseen circumstances, or any default by the Trustee under this Lease, or
under any other agreement between the Town and the Trustee, or for any other reason, including
without limitation, any acts or circumstances that may constitute failure of consideration,
destruction of or damage to the Leased Property, commercial frustration of purpose, or failure of
the Trustee to perform and observe any agreement, whether express or implied, or any duty,
liability or obligation arising out of or connected with this Lease, it being the intention of the
parties that the payments required by this Lease will be paid in full when due without any delay
or diminution whatsoever, SUBJECT ONLY TO THE SPECIAL AND LIMITED NATURE OF
THE TOWN’S OBLIGATION TO MAKE PAYMENTS HEREUNDER AS SET FORTH IN
SECTION 4.01 ABOVE, and further subject to the Town’s rights under Section 7.01 hereof.
Notwithstanding any dispute between the Town and the Trustee, the Town shall, during the
Initial Term and all Renewal Terms, make all payments of Base Rentals and Additional Rentals
when due and shall not withhold any Base Rentals or Additional Rentals pending final resolution
of such dispute (except to the extent permitted by Section 7.01 hereof with respect to certain
Additional Rentals), nor shall the Town assert any right of set-off or counterclaim against its
obligation to make such payments required hereunder. No action or inaction on the part of the
Trustee shall affect the Town’s obligation to pay all Base Rentals and Additional Rentals (except
to the extent provided by Section 7.01 hereof with respect to certain Additional Rentals) during
the Lease Term.
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Section 6.04. Nonappropriation. In the event that the Board shall not specifically
budget and appropriate, on or before the last day of each Fiscal Year, moneys to pay all Base
Rentals and the reasonably estimated Additional Rentals coming due for the next ensuing Fiscal
Year as provided in Section 4.01 hereof and this Article, an Event of Nonappropriation shall be
deemed to have occurred, subject, however, to each of the following provisions:
(a) The Trustee shall declare an Event of Nonappropriation on any earlier date
on which the Trustee receives specific written notice from the Town that this Lease will
be terminated.
(b) Absent such notice from the Town, the Trustee shall give written notice to
the Town of any Event of Nonappropriation, on or before the fifth day of the next
following Fiscal Year; but any failure of the Trustee to give such written notice shall not
prevent the Trustee from declaring an Event of Nonappropriation or from taking any
remedial action which would otherwise be available to the Trustee.
(c) The Trustee shall waive any Event of Nonappropriation which is cured by
the Town within a reasonable time if, in the Trustee’s judgment, such waiver is in the
best interest of the Owners of the Certificates.
(d) The Trustee shall waive any Event of Nonappropriation which is cured by
the Town, within ten days of the giving of notice by the Trustee as provided in (b) above,
by inclusion in a duly enacted appropriation ordinance or resolution, (i) by specific line
item, amounts authorized and directed to be used to pay all Base Rentals and (ii)
sufficient amounts to pay reasonably estimated Additional Rentals, coming due for such
Fiscal Year.
In the event that during any Fiscal Year, any Additional Rentals shall become due which
were not included in a duly enacted appropriation resolution then, in the event that moneys are
not specifically budgeted and appropriated to pay such Additional Rentals within 45 days
subsequent to the date upon which such Additional Rentals are due, an Event of
Nonappropriation shall be deemed to have occurred, upon notice by the Trustee to the Town to
such effect (subject to waiver by the Trustee as hereinbefore provided).
Notwithstanding any provision to the contrary herein, if an Event of Nonappropriation
occurs, the Town’s rights of possession of the Leased Property under this Lease shall terminate
at the end of the last day of the Fiscal Year for which this Lease shall be in effect, and the Town
shall not be obligated to make payment of the Base Rentals, Additional Rentals or any other
payments provided for herein which accrue after the end of the last day of the Fiscal Year for
which this Lease shall be in effect; provided, however, that, subject to the limitations of Sections
6.05 and 12.03 hereof, the Town shall continue to be liable for Base Rentals and Additional
Rentals allocable to any period during which the Town shall continue to occupy, use or retain
possession of the Leased Property, beginning with the first day of the Fiscal Year in respect of
which the Event of Nonappropriation occurs. The Town shall in all events vacate or surrender
possession of the Leased Property by the 20th Business Day of the Fiscal Year in respect of
which an Event of Nonappropriation has occurred.
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The Trustee shall, upon the occurrence of an Event of Nonappropriation, be entitled to all
moneys then on hand and being held in the accounts within all funds created under the Indenture
for the benefit of the Owners. After the 20th Business Day of the Fiscal Year in respect of which
an Event of Nonappropriation has occurred, the Trustee shall proceed to exercise all or any Lease
Remedies. All property, funds and rights acquired by the Trustee upon the termination of this
Lease by reason of an Event of Nonappropriation as provided herein, less any moneys due and
owing to the Trustee, shall be held by the Trustee for the benefit of the Owners of the
Certificates as set forth in the Indenture.
Section 6.05. Limitations on Obligations of Town. The Town and the Trustee
acknowledge and agree that the Base Rentals and Additional Rentals hereunder during the Initial
Term and all of the Renewal Terms, if any, shall be paid from then currently budgeted
expenditures of the Town, using any legally available funds of the Town. The Town’s
obligations to pay Base Rentals, Additional Rentals and any other payments provided for under
this Lease during the Initial Term and all of the Renewal Terms, if any, shall be subject to the
Town’s annual right to renew this Lease (as further provided in Article IV and Sections 6.01 and
6.04 hereof), and shall not constitute a mandatory charge, requirement or liability in any ensuing
Fiscal Year beyond the then current Fiscal Year. No provision of this Lease shall be construed
or interpreted as a delegation of governmental powers or as creating indebtedness or a multiple
fiscal year direct or indirect debt or other financial obligation whatsoever of the Town within the
meaning of any constitutional or statutory debt limitation, including without limitation, Article
XI, Sections 1, 2 and 6, and Article X, Section 20, of the Colorado Constitution. Neither this
Lease nor the execution and delivery of the Certificates shall directly or indirectly obligate the
Town to make any payments of Base Rentals or Additional Rentals beyond the funds legally
available to the Town for its then current Fiscal Year. The Town shall be under no obligation
whatsoever to exercise its option to purchase the Leased Property. No provision of this Lease
shall be construed to pledge or to create a lien on any class or source of Town moneys, nor shall
any provision of this Lease restrict the future issuance of any bonds or obligations of the Town
payable from any class or source of moneys of the Town.
ARTICLE VII
OPERATION AND MAINTENANCE OF LEASED PROPERTY
Section 7.01. Taxes, Utilities and Insurance.
(a) The Town shall pay, as Additional Rentals, all of the following expenses
with respect to the Leased Property:
(i) all taxes, assessments and other charges lawfully made by any
governmental body, provided that any such taxes, assessments or other
governmental charges that may lawfully be paid in installments may be paid in
installments as such installments are due;
(ii) all gas, water, steam, electricity, heat, power and other utility
charges incurred in connection with the Leased Property;
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(iii) casualty and property damage insurance with respect to the Leased
Property in an amount equal to the greater of: (A) the principal amount of all
Certificates Outstanding or (B) the full replacement cost of the Building and the
Equipment; and
(iv) public liability insurance with respect to the activities to be
undertaken by the Town in connection with the Leased Property and this Lease:
(A) to the extent such activities result in injuries for which immunity is available
under Section 24-10-114, C.R.S. or any successor statute, in an amount not less
than the amounts for which the Town may be liable to third parties thereunder and
(B) for all other activities, in an amount not less than $1,000,000 per occurrence.
(b) Except for Permitted Encumbrances, the Town shall not allow any liens
for taxes, assessments, other governmental charges or utility charges to exist with respect
to any portion of the Leased Property. If the Town shall first notify the Trustee of the
intention of the Town to do so, the Town may, however, in good faith and at its expense
contest any such tax, assessment, other governmental charge or utility charge and, in the
event of any such contest, may permit the tax, assessment, other governmental charge or
utility charge so contested to remain unpaid during the period of such contest and any
appeal therefrom, unless the Trustee shall notify the Town that, in the opinion of
Independent Counsel, whose fees and expenses shall be paid by the Town, by
nonpayment of any such item the interest of the Trustee in the Leased Property will be
materially interfered with or endangered or the Leased Property or any portion thereof
will be subject to loss or forfeiture or the Trustee will be subject to liability, in which
event such tax, assessment, other governmental charge or utility charge shall be paid
forthwith; provided, however, that such payment shall not constitute a waiver of the right
to continue to contest such tax, assessment, other governmental charge or utility charge.
At the request of the Town, the Trustee will cooperate fully with the Town in any such
contest.
(c) The insurance policies provided pursuant to subsection (a) of this Section
shall meet the following conditions: (i) any insurance policy may have a deductible
clause in an amount deemed reasonable by the Town; (ii) each insurance policy shall be
provided by an insurer rated “A” or better by A.M. Best Company or by S&P; (iii) each
insurance policy shall be so written or endorsed as to make losses, if any, payable to the
Town and the Trustee, as their respective interests may appear; (iv) each insurance policy
shall contain a provision to the effect that the insurance company shall not cancel the
policy or modify it materially and adversely to the interest of the Town or the Trustee
without first giving written notice thereof to the Town and the Trustee at least 60 days in
advance of such cancellation or modification; (v) each insurance policy, or each
certificate evidencing such policy, shall be deposited with the Trustee; (vi) full payment
of insurance proceeds under any insurance policy up to the dollar limit required by this
Section in connection with damage to the Leased Property shall, under no circumstance,
be contingent on the degree of damage sustained at other property owned or leased by the
Town; and (vii) each insurance policy shall explicitly waive any co-insurance penalty.
All insurance policies issued pursuant to this Section shall be deposited annually with the
Trustee. In the event that the Town has received a notice of cancellation or modification
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under (iv) above, the Town shall furnish to the Trustee a new insurance policy or
certificate evidencing such policy replacing the cancelled or modified policy and
effective on or before the effective date of such cancellation or modification.
(d) The Town may, in its discretion, provide any of the insurance required by
subsection (a) of this Section under blanket insurance policies which insure not only the
risks required to be insured hereunder but also other similar risks.
(e) The Town may, in its discretion, provide all or any portion of the
insurance required by subsection (a) of this Section by self-insurance, provided that the
following conditions are met: (i) the self-insurance program is approved by an
independent insurance consultant referred to in subsection (f) of this Section; (ii) the self-
insurance program is maintained on an actuarially sound basis; (iii) the self-insurance
fund must be held in a separate trust fund by an independent trustee and (iv) if the self-
insurance program is discontinued, the actuarial soundness of the claim reserve fund shall
be maintained.
(f) The Town shall cause an insurance consultant, which may be the person
providing the insurance, to annually review the coverage of the policies of insurance or
self-insurance maintained pursuant to this Section and to make recommendations thereon,
and shall comply with such recommendations.
Section 7.02. Maintenance and Operation of Leased Property. The Town agrees that
at all times during the Lease Term the Town shall maintain, preserve and keep the Leased
Property, or cause the Leased Property to be maintained, preserved and kept, in good repair,
working order and condition, subject to normal wear and tear, shall operate the Leased Property,
or cause the Leased Property to be operated, in an efficient manner and at a reasonable cost, and
shall make or cause to be made all necessary and proper repairs, except as otherwise provided in
Sections 8.06, 8.07 and 8.08 hereof. The Trustee shall have no responsibility for such
maintenance or repair or for making any additions, modifications or replacements to the Leased
Property.
ARTICLE VIII
OWNERSHIP, ENCUMBRANCES, MODIFICATIONS OR ADDITIONS TO LEASED
PROPERTY; DAMAGE OR CONDEMNATION OF LEASED PROPERTY
Section 8.01. Ownership of Leased Property. At all times during the Lease Term, title
to the Leased Property shall remain in the Town, subject to the Site Lease, this Lease, the
Indenture and any other Permitted Encumbrances. Except for personal property purchased by
the Town at its own expense pursuant to Section 8.07 of this Lease, a leasehold interest in the
Leased Property and any and all additions and modifications thereto and replacements thereof
shall be held in the name of the Trustee, subject to the Site Lease, this Lease and the Indenture,
until the Trustee has exercised Lease Remedies or until such Leased Property is conveyed as
provided in Article IX of this Lease, notwithstanding (a) a termination of this Lease by the Town
by reason of an Event of Nonappropriation as provided in Section 6.04 of this Lease; (b) the
occurrence of one or more Events of Default as defined in Section 12.01 of this Lease; (c) the
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occurrence of any event of damage, destruction, condemnation, or, construction, manufacturing
or design defect or title defect, as provided in Section 8.08 of this Lease; or (d) the violation by
the Trustee of any provision of this Lease.
The Town shall have no right, title or interest in the Leased Property or any additions and
modifications thereto or replacements thereof, except as expressly set forth in this Lease or the
Site Lease.
Section 8.02. Limitations on Disposition of and Encumbrances on Leased Property.
(a) Except as otherwise permitted in this Article or Article IX or XII hereof
and except for Permitted Encumbrances, (i) neither the Trustee nor the Town shall sell,
assign, transfer or convey any portion of or any interest in the Leased Property or directly
or indirectly create, incur or assume or suffer to exist any mortgage, pledge, lien
(including a mechanic’s lien), charge, encumbrance or claim on or with respect to the
Leased Property, and (ii) the Town shall promptly take such action as may be necessary
to duly discharge any such mortgage, pledge, lien, charge, encumbrance or claim.
(b) Notwithstanding subsection (a) of this Section, if the Town shall first
notify the Trustee of the intention of the Town to do so, the Town may in good faith
contest any such mortgage, pledge, lien (including a mechanic’s lien), charge,
encumbrance or claim on or with respect to the Leased Property, and in the event of any
such contest, may permit the item so contested to remain undischarged and unsatisfied
during the period of such contest and any appeal therefrom, unless the Trustee shall
notify the Town that, in the opinion of Independent Counsel, whose fees shall be paid by
the Town, by failing to discharge or satisfy such item the interest of the Trustee in the
Leased Property will be materially interfered with or endangered, or the Leased Property
or any part thereof will be subject to loss or forfeiture, in which event such item shall be
satisfied and discharged forthwith; provided, however, that such satisfaction and
discharge shall not constitute a waiver by the Town of the right to continue to contest
such item. At the request of the Town, the Trustee will cooperate fully with the Town in
any such contest.
Section 8.03. Granting of Easements. As long as no Event of Nonappropriation or
Event of Default shall have happened and be continuing, the Trustee shall, at the request of the
Town:
(a) consent to the grant of easements, licenses, rights of way (including the
dedication of public highways) and other rights or privileges in the nature of easements
with respect to the real property included in this Lease and the Indenture, free from this
Lease and the Indenture and any security interest or other encumbrance created
hereunder, or under the Indenture or the Site Lease;
(b) Consent to the release of existing easements, licenses, rights of way and
other rights and privileges with respect to the Leased Property, free from this Lease, the
Site Lease and the Indenture and any security interest or other encumbrance created
hereunder or thereunder, with or without consideration; and
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(c) execute and deliver any instrument necessary or appropriate to confirm
and grant or release any easement, license, right of way or other grant or privilege under
subsection (a) or (b) of this Section, upon receipt of: (i) a copy of the instrument of grant
or release; and (ii) a written application signed by an Authorized Officer of the Town
requesting such instrument and stating that such grant or release will not materially
adversely affect the value, or interfere with the effective use or operation, of the Leased
Property.
Section 8.04. Assignment and Subleasing by Town. This Lease may not be assigned
by the Town for any reason other than to a successor by operation of law. The Town may,
subject to Section 10.04 hereof, (a) permit groups or individuals to use all or any portion of the
Leased Property pursuant to the Town’s policies for community use of Town facilities and (b)
sublease or grant the right to use or otherwise permit other Persons to use all or any portion of
the Leased Property for other purposes, provided that the following conditions are satisfied for
any sublease, grant or use pursuant to clause (b):
(i) this Lease, and the obligations of the Town hereunder, shall remain
obligations of the Town, and the Town shall maintain its direct relationship with
the Trustee, notwithstanding any such sublease, grant or use;
(ii) if the sublease, grant or use is either (A) with respect to all the
Leased Property or (B) makes it impossible or impractical for the Town to use any
substantial portion of the Leased Property for any substantial period of time, the
Trustee shall consent to such sublease, grant or use, which consent shall not be
unreasonably withheld; and
(iii) the Town shall furnish or cause to be furnished to the Trustee a
copy of any agreement for such sublease, grant or use.
Section 8.05. Title Insurance. Concurrently with the transfer of a leasehold interest in
the Leased Property to the Trustee, the Trustee shall be provided with a ALTA Leasehold Title
Insurance Policy, or a commitment therefor, issued to the Trustee in an amount equal to
aggregate principal amount of the Certificates, insuring the Trustee’s leasehold interest in the
Site and the Building, subject only to Permitted Encumbrances.
Section 8.06. Modification of Leased Property. The Town, at its own expense, may
remodel, or make additions, modifications or improvements to, the Leased Property and the same
shall be leased to the Trustee, subject to this Lease and the Indenture, and shall be included under
the terms of this Lease, the Site Lease and the Indenture, provided that (a) such remodeling,
additions, modifications or improvements (i) shall not in any way damage the Leased Property as
it existed prior thereto or cause the Leased Property to be used for purposes other than lawful
governmental functions of the Town (except to the extent of subleasing permitted under Section
8.04 hereof), and (ii) shall become part of the Leased Property; (b) the value of the Leased
Property after such remodeling, additions, modifications or improvements shall be of a value not
less than the value of the Leased Property immediately prior thereto; and (c) the Leased Property,
after such remodeling, additions, modifications or improvements, shall continue to be used as
provided in, and shall otherwise be subject to the terms of, this Lease
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Section 8.07. Installation, Replacement and Substitution of Equipment.
(a) The Town may, from time to time in its sole discretion and at its own
expense, install machinery, equipment, and other tangible property in or on any Leased
Property. All such machinery, equipment, and other tangible personal property shall
remain the sole property of the Town in which neither the Trustee nor the Owners of the
Certificates shall have any interests; provided, however, that a leasehold interest in any
such machinery, equipment, and other tangible personal property which becomes
permanently affixed to any Leased Property shall be in the Trustee, subject to this Lease
and the Indenture, and shall be included under the terms of this Lease, the Site Lease and
the Indenture, in the event the Trustee shall reasonably determine that such Leased
Property would be materially damaged or impaired by the removal of such machinery,
equipment, or other tangible personal property.
(b) The Town shall have no obligation to renew, repair or replace any
inadequate, obsolete, worn out, unsuitable, undesirable or unnecessary Equipment. In
any instance where the Town determines that any Equipment included in the Leased
Property has become inadequate, obsolete, worn out, unsuitable, undesirable or
unnecessary, the Town may (acting for the Trustee) sell, trade in, exchange or otherwise
dispose of such Equipment (as a whole or in part) without any responsibility or
accountability to the Trustee therefor; provided, however, that the Town shall either:
(i) substitute and install (by direct payment of the costs thereof or by
designating equipment, machinery or personal property not theretofore included
as part of the Leased Property) other equipment, machinery or personal property
having (A) equal or greater value and utility (but not necessarily having the same
function) in the operation of the Leased Property and (B) a useful life of not less
than the remaining useful life of the item of Equipment for which it is substituted;
or
(ii) not make any such substitution and installation, provided that
(A) if the item of Equipment is sold to anyone other than the Town, the Town
shall pay to the Trustee for deposit in the Principal Account of the Certificate
Fund the Net Proceeds from such sale, (B) if the item of Equipment is traded in
for other equipment, machinery or personal property that is not to be included in
the Leased Property, the Town shall pay to the Trustee for deposit in the Principal
Account of the Certificate Fund the Net Proceeds of the credit received by it in
such trade in and (C) if the item of Equipment is sold or disposed of to the Town,
the Town shall pay to the Trustee for deposit in the Principal Account of the
Certificate Fund an amount equal to the original purchase price thereof less
depreciation at rates calculated in accordance with generally accepted accounting
principles.
(c) The Town shall promptly report in writing to the Trustee each substitution,
sale, trade in, exchange or other disposition that must meet one of the conditions set forth
in clause (i) or (ii) of subsection (b) of this Section and will pay amounts due to the
Trustee thereunder promptly following any sale or disposition pursuant to clause (ii) of
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subsection (b) of this Section. All equipment or personal property substituted for
Equipment pursuant to this Section shall be free of all liens and encumbrances that are
not Permitted Encumbrances and shall become a part of the Leased Property, and the
Town shall execute and deliver to the Trustee a bill of sale transferring title to the
substituted equipment, machinery or personal property to the Trustee.
(d) The Town will not remove, or permit the removal of, any of the
Equipment except in accordance with this Section, Section 8.06 or 8.08 or Article IX
hereof. The Trustee shall cooperate with the Town in implementing the Town’s rights to
dispose of Equipment pursuant to this Section and will execute any and all conveyances,
releases or other documents necessary or appropriate in connection therewith.
(e) The disposal of any portion of the Equipment pursuant to this Section shall
not entitle the Town to any postponement, abatement or diminution of the Base Rentals
or Additional Rentals required to be paid hereunder.
Section 8.08. Damage to, Condemnation of, Material Defect in or Loss of Title to
Leased Property.
(a) If, during the Lease Term (i) the Leased Property (or any portion thereof)
is destroyed or damaged by fire or other casualty, (ii) title to, or the temporary or
permanent use of, the Leased Property (or any portion thereof) or the estate of the Town
or the Trustee in the Leased Property (or any portion thereof), is taken under the exercise
of the power of eminent domain by any governmental body or by any Person acting
under governmental authority, (iii) a breach of warranty or any material defect with
respect to the Leased Property (or any portion thereof) becomes apparent or (iv) title to or
the use of the Leased Property (or any portion thereof) is lost by reason of a defect in the
title thereto, then, the Net Proceeds of any insurance, performance bond or condemnation
award or the Net Proceeds received as a consequence of any default or breach of
warranty under any contract relating to the Leased Property shall be deposited into a
special trust fund held by the Trustee.
(b) If the costs of the repair, restoration, modification, improvement or
replacement of the Leased Property following an event described in subsection (a) of this
Section are equal to or less than the Net Proceeds available, such Net Proceeds shall be
used promptly to repair, restore, modify, improve or replace the Leased Property (or
portion thereof) and any excess shall be deposited into the Principal Account of the
Certificate Fund, or, in the event that the Net Proceeds exceed the Purchase Option Price,
the Net Proceeds shall be used to pay the Purchase Option Price and any excess shall be
delivered to the Town.
(c) If the costs of the repair, restoration, modification, improvement or
replacement of the Leased Property following an event described in subsection (a) of this
Section are more than the amount of Net Proceeds available, then:
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(i) The Town may elect either:
(A) to use the Net Proceeds promptly to repair, restore, modify,
improve or replace the Leased Property (or portion thereof) with property
of a value equal to or in excess of the value of the Leased Property (or
applicable portion thereof), and pay (subject to Article VI hereof) as
Additional Rentals the costs thereof in excess of the amount of the Net
Proceeds or
(B) to apply the Net Proceeds to the payment of the Purchase
Option Price and, in the event of an insufficiency of the Net Proceeds for
such purpose, the Town shall, subject to Article VI hereof, appropriate and
pay such amount as may be necessary to equal the Purchase Option Price.
(ii) If, within 90 days of the occurrence of the event described in
subsection (a) of this Section, the Town has not elected to proceed under either
(b) or (c) above and budgeted and appropriated sufficient funds to proceed under
(c), an Event of Nonappropriation shall be deemed to have occurred and, subject
to the Town’s right to cure, the Trustee may pursue remedies available to it
following an Event of Nonappropriation.
(d) The Town shall not voluntarily settle, or consent to the settlement of, any
proceeding arising out of any insurance claim, performance or payment bond claim,
prospective or pending condemnation proceeding, or any action relating to default or
breach of warranty under any contract relating to the Leased Property without the written
consent of the Trustee.
(e) No event described in subsection (a) of this Section shall affect the
obligation of the Town to pay Base Rentals or Additional Rentals hereunder, regardless
of whether the Leased Property is repaired, modified, improved or replaced in full or in
part, subject, however, to Article VI hereof.
(f) Any repair, restoration, modification, improvement, or replacement paid
for in whole or in part out of such Net Proceeds shall be the property of the Town, subject
to this Lease, the Site Lease and the Indenture and shall be included as part of the Leased
Property under this Lease, the Site Lease and the Indenture.
ARTICLE IX
TOWN’S PURCHASE OPTION
Section 9.01. Town’s Purchase Option. The Town is hereby granted the option to
purchase the Leased Property and terminate this Lease by paying to the Trustee an amount (the
“Purchase Option Price”) which, together with other amounts then on deposit in the Certificate
Fund and the Project Account that are available for such purpose, is sufficient (a) to pay all the
Outstanding Certificates at maturity, to redeem all the Outstanding Certificates in accordance
with the redemption provisions of the Indenture or to defease all the Outstanding Certificates in
accordance with the defeasance provisions of the Indenture and (b) to pay all Additional Rentals
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payable through the date of conveyance of the Leased Property to the Town or its designee
pursuant to this Article, including, but not limited to, all fees and expenses of the Trustee relating
to the conveyance of the Leased Property and the payment, redemption or defeasance of the
Certificates.
Section 9.02. Exercise of Town’s Purchase Option.
(a) The Town may exercise its option to purchase the Leased Property
pursuant to Section 9.01 hereof by (i) giving written notice to the Trustee prior to the end
of the Scheduled Lease Term (A) stating that the Town intends to purchase the Leased
Property pursuant to Section 9.01 hereof, (B) identifying the source of funds it will use to
pay the Purchase Option Price and (C) specifying a closing date for such purpose which
is at least 45 days after the delivery of such notice and (ii) paying the Purchase Option
Price to the Trustee in immediately available funds on the closing date. If the Town shall
have given notice to the Trustee of its intention to purchase the Leased Property, but shall
not have deposited the amounts with the Trustee on the date specified in such notice, the
Town shall continue to pay Base Rentals as if no such notice had been given.
(b) At the closing of any purchase of the Leased Property pursuant to this
Section, the Trustee shall execute and deliver to the Town or its designee all necessary
documents assigning, transferring and conveying to the Town or its designee the same
interest in the Leased Property that was conveyed to the Trustee, subject only to the
following: (i) Permitted Encumbrances, other than this Lease, the Site Lease and the
Indenture; (ii) all liens, encumbrances and restrictions created or suffered to exist by the
Trustee as required or permitted by this Lease or the Site Lease or arising as a result of
any action taken or omitted to be taken by the Trustee as required or permitted by this
Lease or the Site Lease; (iii) any lien or encumbrance created or suffered to exist by
action of the Town; and (iv) those liens and encumbrances (if any) to which the Leased
Property was subject when acquired by the Trustee.
Section 9.03. Conveyance of Leased Property to Town at End of Scheduled Lease
Term. If all Base Rentals scheduled to be paid through the end of the Scheduled Lease Term
and all Additional Rentals payable through the date of conveyance of the Leased Property to the
Town pursuant to this Section shall have been paid, the Leased Property shall be assigned,
transferred and conveyed to the Town or its designee at the end of the Scheduled Lease Term in
the manner described in Section 9.02(b) hereof without any additional payment by the Town.
ARTICLE X
GENERAL COVENANTS
Section 10.01. Further Assurances and Corrective Instruments. So long as this
Lease is in full force and effect and no Event of Nonappropriation or Event of Default shall have
occurred, the Trustee and the Town shall have full power to carry out the acts and agreements
provided herein and the Trustee and the Town shall from time to time, execute, acknowledge and
deliver or cause to be executed, acknowledged and delivered such supplements hereto and such
further instruments as may reasonably be required for correcting any inadequate or incorrect
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description of the Leased Property leased or intended to be leased hereunder, or for otherwise
carrying out the intention of or facilitating the performance of this Lease.
Section 10.02. Compliance with Requirements of Law. The Trustee and the Town
shall comply with all Requirements of Law in performing their respective obligations with
respect to the Leased Property hereunder. Without limiting the generality of the preceding
sentence, the Town, in particular, shall use the Leased Property in a manner such that (a) the
Leased Property at all times is operated in compliance with all Requirements of Law; (b) all
permits required by Requirements of Law in respect of the Town’s use of the Leased Property
are obtained, maintained in full force and effect and complied with; (c) there shall be no
hazardous substance, pollutant or contaminant (as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act, as amended, 42 U.S.C. § 9601, et
seq., any applicable state law or regulations promulgated under either), solid or hazardous waste
(as defined in the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et
seq., any applicable state law or regulations promulgated under either), special waste, petroleum
or petroleum derived substance, radioactive material or waste, polychlorinated biphenyls,
asbestos or any constituent of any of the foregoing located on, in or under the Leased Property in
violation of any Requirements of Law; (d) there shall be no disposal of any of the items referred
to in clause (c) on, from, into or out of the Leased Property in violation of any Requirements of
Law; and (e) there shall be no spillage, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leeching, dumping, disposing, depositing or dispersing of any of
the items referred to in clause (c) into the indoor or outdoor environment from, into or out of the
Leased Property, including but not limited to the movement of any such items through or in the
air, soil, surface water, ground water from, into or out of the Leased Property or the
abandonment or discard of barrels, containers or other open or closed receptacles containing any
such items from, into or out of the Leased Property in violation of any Requirements of Law.
The Town shall not store, locate, generate, produce, process, treat, transport, incorporate,
discharge, emit, release, deposit or dispose of any Hazardous Substance in, upon, under, over or
from the Leased Property in violation of any Environmental Regulation, shall not permit any
Hazardous Substance to be stored, located, generated, produced, processed, treated, transported,
incorporated, discharged, emitted, released, deposited, disposed of or to escape therein,
thereupon, thereunder, thereover or therefrom in violation of any Environmental Regulation,
shall cause all Hazardous Substances to be properly removed therefrom and properly disposed of
in accordance with all applicable Environmental Regulations, shall not install or permit to be
installed any underground storage tank therein or thereunder in violation of any Environmental
Regulation and shall comply with all other Environmental Regulations which are applicable to
the Leased Property.
Subject to the limitations of Article IV hereof, in the event any Hazardous Substance is
found upon, under, over or from the Leased Property in violation of any Environmental
Regulation or if any lien or claim for lien in favor of any governmental entity or agency as a
result of any release of any Hazardous Substance is threatened, the Town, at its sole cost and
expense, shall, within ten days of such finding, deliver written notice thereof to the Trustee and
shall promptly remove such Hazardous Substances and prevent the imposition of any liens
against the Leased Property for the cleanup of any Hazardous Materials. Such removal shall be
conducted and completed in compliance with all applicable federal, state and local laws,
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regulations, rules, ordinances and policies in accordance with the orders and directives of all
federal, state and local governmental authorities.
Subject to the limitations of Article IV hereof and to the fullest extent permitted by law,
the Town further agrees to reimburse the Trustee for any and all claims, demands, judgments,
penalties, liabilities, costs, damages and expenses, including court costs and attorneys’ fees
directly or indirectly incurred by the Trustee in any action against or involving the Trustee,
resulting from any breach of the foregoing covenants or the covenant in Section 2.02(n) hereof,
or from the discovery of any Hazardous Substance, in, upon, under or over, or emanating from,
the Leased Property.
The representations and warranties in Section 2.02(n) hereof and the covenants of this
Section 10.02 shall be deemed to be for the benefit of the Trustee and any successors and assigns
of the Trustee.
Section 10.03. Participation in Legal Actions.
(a) At the request of and at the cost of the Town (payable as an Additional
Rental hereunder), the Trustee shall join and cooperate fully in any legal action in which
the Town asserts its right to the enjoyment of the Leased Property; that involves the
imposition of any charges, costs or other obligations or liabilities on or with respect to the
Leased Property or the Town’s enjoyment of the Leased Property for which the Town is
responsible hereunder; or that involves the imposition of any charges, costs or other
obligations with respect to the Town’s execution, delivery and performance of its
obligations hereunder.
(b) At the request of the Trustee and upon a determination by the Town that
such action is in the best interests of the Town, the Town shall, at the cost of the Town
(payable as an Additional Rental hereunder), join and cooperate fully in any legal action
in which the Trustee asserts its ownership of or interest in the Leased Property; that
involves the imposition of any charges, costs or other obligations on or with respect to the
Leased Property for which the Trustee is responsible hereunder; or that involves the
imposition of any charges, costs or other obligations with respect to the execution and
delivery of this Lease by the Trustee or the performance of its obligations hereunder.
Section 10.04. Covenant to Comply with Internal Revenue Code. The Town
acknowledges that moneys in funds and accounts created under the Indenture will be invested or
deposited by the Trustee at the direction of the Town. The Town certifies and covenants that it
will not knowingly direct or otherwise cause the investment or use of any moneys in any fund or
account in connection with the Certificates (including any moneys reasonably expected to be
used to pay the Certificates or interest thereon, whether or not held by the Trustee pursuant to the
Indenture and regardless of whether any such moneys were derived from the proceeds of the
Certificates or from any other source), in a manner which will cause the Certificates to be
classified as “arbitrage bonds” within the meaning of the Code.
The Town further covenants that it will perform all acts within its power which are or
may be necessary to insure that the interest portion of the Base Rentals will at all times remain
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excludable from gross income for purposes of federal income taxation under the Code and the
regulations promulgated thereunder, as presently enacted and construed or as hereafter amended.
In particular, but without limitation, the Town further covenants to comply with the
following restrictions of the Code, unless the Town receives an opinion of nationally recognized
bond counsel substantially to the effect that noncompliance with such requirements will not
adversely affect the exclusion from gross income for purposes of federal income taxation of
interest on the Certificates.
(a) The Leased Property, the Project and gross proceeds of the Certificates,
shall not be used in a manner which will cause the Certificates to be considered “private
activity bonds” within the meaning of the Code.
(b) The Certificates are not and shall not become directly or indirectly
“federally guaranteed.” A Certificate will be considered to be “federally guaranteed” if
the payment of principal or interest with respect to such Certificate is guaranteed (in
whole or in part) by the United States of America (or any agency or instrumentality
thereof) or if 5% or more of the proceeds of the Certificates are used in making loans the
payment of principal or interest with respect to which is guaranteed (in whole or in part)
by the United States of America (or any agency or instrumentality thereof) or if invested
(directly or indirectly) in federally insured deposits or accounts.
(c) The Town shall timely file Internal Revenue Form 8038-G pursuant to
Section 149(e) of the Code.
Section 10.05. Reimbursement. To the extent proceeds of the Certificates are used to
reimburse the Town for Costs of the Project incurred by or on behalf of the Town prior to the
date the Certificates are issued (which costs are referred to in this subsection as the “reimbursed
costs”):
(a) at the time the reimbursed costs were incurred by the Town, the Town
intended to seek reimbursement for such costs from the proceeds of the Certificates or
another financing source;
(b) the reimbursed costs either (i) were incurred no more than 60 days prior
to the date of a reimbursement resolution by the Town or (ii) were for “preliminary
expenditures,” which include architectural, engineering, surveying, soil testing or
reimbursement of bond issuance and similar costs that were incurred prior to
commencement of acquisition, construction or rehabilitation of the Project in an amount
not in excess of 20% of the aggregate issue price of the Certificates;
(c) the reimbursed costs are for items that would have to be capitalized for
federal income tax purposes (determined without regard to any election to treat such costs
in another manner) if the Town was subject to federal income taxation;
(d) none of the amounts paid to the Town to reimburse it for the reimbursed
costs is reasonably expected to be used to pay any amounts payable by the Town under
the Indenture; and
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(e) all of the amounts paid to the Trustee for payment of the reimbursed costs
will actually be expended by the Trustee within 12 months after the date the Certificates
are issued.
Section 10.06. Payment of Fees and Expenses of the Trustee. The Town shall pay the
reasonable fees and expenses of the Trustee as Additional Rentals (subject to any agreement with
the Trustee limiting the amount of such fees and expenses) in connection with the Leased
Property, this Lease, the Site Lease, the Indenture, the Certificates or any matter related thereto,
including, but not limited to, costs of defending any claim or action brought against the Trustee
or its directors or officers relating to the foregoing, excepting, however, any liability for any
action constituting willful or wanton misconduct.
Section 10.07. Payments to Rebate Fund. The Town shall pay to the Trustee as
Additional Rentals all amounts required to be deposited into the Rebate Fund as and when
required by the Indenture.
Section 10.08. Authorization of Permitted Investments with Term in Excess of Five
Years. By authorizing the execution and delivery of this Lease, the Board specifically
authorizes the investment of moneys held by the Trustee in Permitted Investments (as defined in
the Indenture) where the period from the date of purchase thereof to the maturity date is in
excess of five years, except as provided in Section 5.01 of the Indenture.
Section 10.09. Compliance with Requirements. During the Lease Term, the Town and
the Trustee shall observe and comply promptly to the extent possible with all current and future
orders of all courts having jurisdiction over the Leased Property or any portion thereof, provided
that the Town or the Trustee may contest or appeal such orders so long as they are in compliance
with such orders during the contest or appeal period, and all current and future requirements of
all insurance companies writing policies covering the Leased Property or any portion thereof.
Section 10.10. Immunity and Indemnification. The Trustee and its directors,
members, officers, employees and agents shall be protected in its or their actions taken in
reliance upon any paper or documents believed by it or them to be genuine and consistent with
their rights or powers under this Lease, and it or they may conclusively rely upon the advice of
counsel and may (but need not) require further evidence of any fact or matter before taking any
action.
Subject to the limitations of Article IV hereof and to the fullest extent permitted by law,
the Town shall indemnify the Trustee and any of its directors, members, officers, employees or
agents and save them harmless against any liability resulting from acts or omissions of the Town.
The Town shall also indemnify the Trustee and its directors, members, officers, employees or
agents against all claims arising from: (a) the conduct, management, operation or use of, or from
any work or thing done on, the Leased Property during the Lease Term; (b) any condition of the
Leased Property; and (c) any act of negligence of the Town or of any of its agents, contractors or
employees or any violation of law by the Town or breach of any covenant or warranty by the
Town hereunder. The Town shall indemnify and save the Trustee and its directors, members,
officers, employees and agents harmless from any such claim arising as aforesaid or in
connection with any action or proceeding brought thereon and, upon notice from the Trustee or
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any of its directors, members, officers, employees or agents, shall defend the Trustee and any of
its directors, members, officers, employees or agents in any such action or proceeding.
Section 10.11. Access To Leased Property. The Town agrees that the Trustee, and any
authorized representative of the Trustee, shall have the right at all reasonable times to examine
and inspect the Leased Property and all of the Town’s books and records with respect thereto.
The Town further agrees that the Trustee, and any such representative shall have such rights of
access to the Leased Property as may be reasonably necessary to cause the proper maintenance
of the Leased Property in the event of failure by the Town to perform its obligations under this
Lease.
ARTICLE XI
LIMITS ON OBLIGATIONS OF TRUSTEE
Section 11.01. Disclaimer of Warranties. THE TRUSTEE MAKES NO
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE
VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR FITNESS FOR USE OF THE LEASED PROPERTY OR ANY
OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE LEASED
PROPERTY OR ANY PORTION THEREOF. In no event shall the Trustee be liable for any
direct or indirect, incidental, special or consequential damage in connection with or arising out of
this Lease or the existence, furnishing, functioning or use by the Town of any item, product or
service provided for herein.
Section 11.02. Financial Obligations of Trustee Limited to Available Funds.
Notwithstanding any other provision hereof, all financial obligations of the Trustee under this
Lease, except those resulting from its negligence or willful misconduct, are limited to the Trust
Estate.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.01. Events of Default Defined.
(a) Any one of the following shall constitute an “Event of Default” under this
Lease:
(i) failure by the Town to pay any Base Rentals due during the Lease
Term to the Trustee within five days following such Base Rental Payment Date;
(ii) failure by the Town to pay any Additional Rental during the Lease
Term within five days after the same becomes due;
(iii) failure by the Town to vacate the Leased Property by the 20th
Business Day of the Fiscal Year in respect of which an Event of Nonappropriation
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under Section 4.02 hereof has occurred or within 90 days following an Event of
Nonappropriation under Section 8.08 hereof has occurred;
(iv) any sublease, assignment, encumbrance, conveyance or other
transfer of the interest of the Town in all or any portion of the Lease or the Leased
Property in violation of Section 13.02(a) hereof;
(v) failure by the Town to observe and perform any covenant,
condition or agreement on its part to be observed or performed, other than as
referred to in clause (i), (ii), (iii) or (iv) above, for a period of 30 days after
written notice, specifying such failure and requesting that it be remedied shall be
given to the Town by the Trustee, unless the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided, however, that if the failure
stated in the notice cannot be corrected within the applicable period, the Trustee
shall not withhold its consent to an extension of such time if corrective action
shall be instituted within the applicable period and diligently pursued until the
default is corrected; or
(vi) the Town files a petition or application seeking reorganization or
protection under federal bankruptcy law or for other debtor relief under the laws
of the State or a receiver is appointed for all or any material portion of the Town’s
assets or revenues or the Town is the subject of such a petition or application
which is not contested by the Town or otherwise dismissed, vacated, discharged
or stayed within 60 days.
(b) The provisions of subsection (a) of this Section are subject to the
following limitations:
(i) the Town shall be obligated to pay Base Rentals and Additional
Rentals only during the Initial Term or current Renewal Term, except as
otherwise expressly provided in this Lease; and
(ii) if, by reason of Force Majeure, the Town shall be unable in whole
or in part to carry out any agreement on its part herein contained, other than its
obligation to pay Base Rentals or Additional Rentals hereunder, the Town shall
not be deemed in default during the continuance of such inability; provided,
however, that the Town shall, as promptly as legally and reasonably possible,
remedy the cause or causes preventing the Town from carrying out such
agreement, except that the settlement of strikes, lockouts and other industrial
disturbances shall be entirely within the discretion of the Town.
Section 12.02. Remedies on Default. Whenever any Event of Default referred to in
Section 12.01 of this Lease shall have happened and be continuing, the Trustee shall take one or
any combination of the following remedial steps:
(a) terminate the Lease Term and give notice to the Town to immediately
vacate and surrender possession of the Leased Property within 20 Business Days of such
notice;
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(b) foreclose through the courts on or otherwise repossess its interest in the
Leased Property in any lawful manner and exercise all the rights and remedies of a
secured party under the Uniform Commercial Code with respect to the Equipment and
otherwise repossess, liquidate or otherwise dispose of the Equipment in any lawful
manner; provided, however, that the Trustee may not recover from the Town any
deficiency which may exist following the liquidation of the Equipment in excess of the
amounts payable under subparagraph (d) of this Section 12.02;
(c) sell or assign its interest in or sublease all or any portion of the Leased
Property;
(d) recover from the Town:
(i) the portion of Base Rentals and Additional Rentals, which would
otherwise have been payable hereunder during any period in which the Town
continues to occupy, use or possess the Leased Property;
(ii) Base Rentals for the then current Fiscal Year in which such Event
of Default occurs that have been appropriated by the Board, regardless of when
the Town vacates the Leased Property and delivers the Equipment to the Trustee;
and
(iii) Additional Rentals for the then current Fiscal Year in which such
Event of Default occurs that have been appropriated by the Board, but only to the
extent such Additional Rentals are payable prior to the date, or are attributable to
the use of the Leased Property prior to the date, the Town vacates the Leased
Property and delivers the Equipment to the Trustee;
(e) enforce any provision of this Lease by equitable remedy, including, but
not limited to, enforcement of the restrictions on assignment, encumbrance, conveyance,
transfer or succession under Article XIII hereof by specific performance, writ of
mandamus or other injunctive relief; and
(f) take whatever action at law or in equity may appear necessary or desirable
to enforce its rights in and to the Leased Property under this Lease, subject, however, to
the limitations on the obligations of the Town set forth in Sections 6.05 and 12.03 hereof
and the limitations on the obligations of the Trustee set forth in Article X hereof.
Section 12.03. Limitations on Remedies. A judgment requiring a payment of money
may be entered against the Town by reason of an Event of Default only as to the Town’s
liabilities described in Section 12.02(d) hereof. A judgment requiring a payment of money may
be entered against the Town by reason of an Event of Nonappropriation only to the extent that
the Town fails to vacate and surrender possession of the Leased Property as required by
Section 6.04 of this Lease, and only to the extent provided in Section 12.02(d)(i) hereof. The
remedy described in Section 12.02(d)(ii) and (iii) of this Lease is not available for an Event of
Default consisting of failure by the Town to vacate and surrender possession of the Leased
Property within 20 Business Days following notice of an Event of Nonappropriation.
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Section 12.04. No Remedy Exclusive. Subject to Section 12.03 hereof, no remedy
herein conferred upon or reserved to the Trustee is intended to be exclusive, and every such
remedy shall be cumulative and shall be in addition to every other remedy given hereunder or
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 and power may be exercised from time to time and as often
as may be deemed expedient. In order to entitle the Trustee to exercise any remedy reserved in
this Article, it shall not be necessary to give any notice, other than such notice as may be
required in this Article.
Section 12.05. Waivers.
(a) The Trustee may waive any Event of Default under this Lease and its
consequences as the Trustee deems to be in the best interest of the Owners of the
Certificates. In the event that any agreement contained herein should be breached by
either party and thereafter waived by the other party, such waiver shall be limited to the
particular breach so waived and shall not be deemed to waive any other breach
hereunder.
(b) In the event the Trustee waives any Event of Default described in Section
12.01(a)(i) hereof, any subsequent payment by the Town of Base Rentals then due and
owing shall be paid to the Trustee to be applied in accordance with the terms of the
Indenture.
Section 12.06. Reserved.
Section 12.07. Agreement to Pay Attorneys’ Fees and Expenses. To the extent
permitted by law and subject to the provisions of Article IV hereof, in the event that either party
hereto shall default under any of the provisions hereof and the nondefaulting party shall employ
attorneys or incur other expenses for the collection of Base Rentals and Additional Rentals, or
the enforcement of performance or observance of any obligation or agreement on the part of the
defaulting party herein contained, the defaulting party agrees that it shall on demand therefor pay
to the nondefaulting party the fees of such attorneys and such other expenses so incurred by the
nondefaulting party, to the extent that such attorneys’ fees and expenses may be determined to be
reasonable by a court of competent jurisdiction.
Section 12.08. Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws. The Trustee and the Town agree, to the extent permitted by law, that in the
case of an Event of Nonappropriation or an Event of Default neither the Trustee nor the Town
nor any one claiming through or under any of them shall or will set up, claim or seek to take
advantage of any appraisement, valuation, stay, extension or redemption laws now or hereafter in
force in order to prevent or hinder the enforcement of the Indenture; and the Trustee and the
Town, for themselves and all who may at any time claim through or under either of them, each
hereby waives, to the full extent that it may lawfully do so, the benefit of all such laws.
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ARTICLE XIII
TRANSFERS OF INTERESTS IN LEASE OR LEASED PROPERTY
Section 13.01. Trustee’s Rights, Title and Interest in Trust for Benefit of Owners;
Successor Trustee; Assignment by Trustee. The Trustee shall place its interest in the Leased
Property and its rights, title and interest in, to and under this Lease (other than the Trustee’s
rights to payment of its fees and expenses and the rights of third parties to Additional Rentals
payable to them) in trust for the benefit of the Owners pursuant to the Indenture. Any successor
trustee under the Indenture shall automatically succeed to the previous trustee’s interest in the
Leased Property and the previous trustee’s rights, title, interest and obligations in, to and under
this Lease. The Trustee shall not, except as provided in this Section or as otherwise provided
elsewhere in this Lease or in the Indenture, assign, convey or otherwise transfer to any Person
any of the Trustee’s interest in the Leased Property or the Trustee’s rights, title or interest in, to
or under this Lease.
Section 13.02. Transfer of Town’s Interest in Lease and Leased Property
Prohibited.
(a) Except as otherwise permitted by Section 8.04 hereof with respect to
subleases, grants or uses of the Leased Property or subsection (b) of this Section with
respect to transfers of the Leased Property following termination of this Lease or as
otherwise required by law, the Town shall not sublease, assign, encumber, convey or
otherwise transfer all or any portion of its interest in this Lease or the Leased Property to
any Person, whether now in existence or organized hereafter.
(b) Notwithstanding subsection (a) of this Section, the Town may transfer its
interest in the Leased Property after, and only after, this Lease has terminated and the
Leased Property has been conveyed to the Town or its designee pursuant to Article IX
hereof following the payment of the Purchase Option Price or all Base Rentals scheduled
to be paid through the end of the Scheduled Lease Term, together with all other amounts
required to be paid as a condition of such conveyance pursuant to Article IX hereof, and
the payment or defeasance of all the Certificates in accordance with the Indenture.
ARTICLE XIV
MISCELLANEOUS
Section 14.01. Binding Effect. This Lease shall inure to the benefit of and shall be
binding upon the Trustee and the Town and their respective successors and assigns, subject,
however, to the limitations set forth in Article XIII hereof. This Lease and the covenants set
forth herein are expressly intended to be covenants, conditions and restrictions running with the
Leased Property and the leasehold estate in the Leased Property under this Lease.
Section 14.02. Acknowledgement of Indenture. The Town has received a copy of, and
acknowledges the terms of, the Indenture.
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Section 14.03. Trustee and Town Representatives. Whenever under the provisions
hereof the approval of the Trustee or the Town is required, or the Town or the Trustee is required
to take some action at the request of the other, unless otherwise provided, such approval or such
request shall be given for the Trustee by the Authorized Officer of the Trustee and for the Town
by the Authorized Officer of the Town and the Town and the Trustee shall be authorized to act
on any such approval or request.
Section 14.04. Manner of Giving Notices. All notices, certificates or other
communications hereunder shall be in writing and shall be deemed given when mailed by
certified or registered mail, postage prepaid, addressed as follows: if to the Town, to Town of
Estes Park, 170 MacGregor Avenue, Post Office Box 1200, Estes Park, Colorado 80517,
Attention: Town Administrator; and if to the Trustee, to UMB Bank, n.a., 1670 Broadway,
Denver, Colorado 80202, Attention: Corporate Trust Department. The Town and the Trustee
may, by written notice, designate any further or different addresses to which subsequent notices,
certificates or other communications shall be sent.
Section 14.05. No Individual Liability. All covenants, stipulations, promises,
agreements and obligations of the Town or the Trustee, as the case may be, contained herein
shall be deemed to be the covenants, stipulations, promises, agreements and obligations of the
Town or the Trustee, as the case may be, and not of any member, director, officer, employee,
servant or other agent of the Town or the Trustee in his or her individual capacity, and no
recourse shall be had on account of any such covenant, stipulation, promise, agreement or
obligation, or for any claim based thereon or hereunder, against any member, director, officer,
employee, servant or other agent of the Town or the Trustee or any natural person executing this
Lease or any related document or instrument.
Section 14.06. Amendments, Changes and Modifications. Except as otherwise
provided herein or in the Indenture, this Lease may only be effectively amended, changed,
modified or altered as provided in the Indenture, and by the execution of a subsequent document
in the same manner as this Lease is executed.
Section 14.07. Events Occurring on Days that are not Business Days. If the date for
making any payment or the last day for performance of any act or the exercising of any right
under this Lease is a day that is not a Business Day, such payment may be made, such act may be
performed or such right may be exercised on the next succeeding Business Day, with the same
force and effect as if done on the nominal date provided in this Lease.
Section 14.08. Severability. In the event that any provision of this Lease, other than the
obligation of the Town to pay Base Rentals or Additional Rentals and the Purchase Option Price
hereunder and the obligation of the Trustee to provide quiet enjoyment of the Leased Property
and to convey the Leased Property to the Town pursuant to Article IX hereof, shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof.
Section 14.09. Captions. The captions or headings herein are for convenience only and
in no way define, limit or describe the scope or intent of any provisions or sections of this Lease.
34
4850-2929-4355.1
Section 14.10. Applicable Law. The laws of the State shall be applied in the
interpretation, execution and enforcement of this Lease, without regard to conflict of laws
principles.
Section 14.11. Execution in Counterparts. This Lease 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.
Section 14.12. Amounts Remaining in Funds. It is agreed by the parties hereto that
any amounts remaining in any of the funds or accounts created under the Indenture, upon
termination of the Lease Term, and after payment in full of the Certificates (or provision for
payment thereof having been made in accordance with the provisions of this Lease and the
Indenture) and the fees and expenses of the Trustee in accordance with this Lease and the
Indenture, shall belong to and be paid to the Town by the Trustee as an overpayment of Base
Rentals.
Section 14.13. Net Lease. This Lease shall be deemed and construed to be a “net lease,”
and the Town shall pay absolutely net during the Lease Term, the Base Rentals, Additional
Rentals and all other payments required hereunder, free of any deductions, and without
abatement, deduction or setoff (other than credits against Base Rentals expressly provided for in
this Lease).
Section 14.14. No Merger. The Trustee and the Town intend that the legal doctrine of
merger shall have no application to this Lease and that neither the execution and delivery of the
Site Lease by the Town and the Trustee nor the exercise of any remedies under the Site Lease or
this Lease shall operate to terminate or extinguish the Site Lease or this Lease, except as
specifically provided therein and herein.
[remainder of page intentionally left blank]
35
4850-2929-4355.1
IN WITNESS WHEREOF, the Trustee and the Town have executed this Lease as of the
date first above written.
UMB BANK, n.a., in its capacity as Trustee
under the Indenture
By
Authorized Signatory
TOWN OF ESTES PARK, COLORADO, as
Town and Sublessee
[SEAL]
By
Mayor
Attest:
By
Town Clerk
[Signature Page to Lease Purchase Agreement]
36
4850-2929-4355.1
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this ____ day of May, 2013, by
_______________________ as an authorized signatory of UMB Bank, n.a.
WITNESS MY HAND AND OFFICIAL SEAL, the day and year above written.
[NOTARIAL SEAL]
Notary
My commission expires:
37
4850-2929-4355.1
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The foregoing instrument was acknowledged before me this ____ day of May, 2013, by
William C. Pinkham, as Mayor, and by Jackie Williamson, as Town Clerk, of the Town of Estes
Park, Colorado.
WITNESS MY HAND AND OFFICIAL SEAL, the day and year above written.
[NOTARIAL SEAL]
Notary
My commission expires:
4850-2929-4355.1
EXHIBIT A
DESCRIPTION OF THE LEASED PROPERTY
Description of Site:
Description of Building:
The Town Hall, a steel-framed, two story office building containing approximately
30,500 square feet, located at 170 MacGregor Avenue, Estes Park, Colorado.
Description of Equipment:
All fixtures and machinery located in the Building, including but not limited to all
lighting, heating, plumbing, ventilating and air conditioning fixtures, inside telephone wiring and
connecting blocks/jacks, built-in mirrors, floor coverings, intercom systems, built-in kitchen
appliances, sprinkler systems and controls and smoke/fire detectors.
4850-2929-4355.1
EXHIBIT B
BASE RENTALS PAYMENT SCHEDULE
Base Rentals
Payment Date
Base Rentals
Principal Component
Base Rentals
Interest Component
Total
Base Rentals
12/01/13 $ 0 $ $
06/01/14 0
12/01/14 370,000
06/01/15 0
12/01/15 380,000
06/01/16 0
12/01/16 390,000
06/01/17 0
12/01/17 395,000
06/01/18 0
12/01/18 405,000
06/01/19 0
12/01/19 415,000
06/01/20 0
12/01/20 425,000
06/01/21 0
12/01/21 435,000
06/01/22 0
12/01/22 450,000
06/01/23 0
12/01/23 460,000
06/01/24 0
12/01/24 470,000
06/01/25 0
12/01/25 480,000
06/01/26 0
12/01/26 495,000
06/01/27 0
12/01/27 505,000
Total $6,075,000 $ $
4850-2929-4355.1
EXHIBIT C
PERMITTED ENCUMBRANCES
4818-1560-6803.1
INDENTURE OF TRUST
by
UMB BANK, n.a.,
as Trustee
authorizing
$6,_________
Certificates of Participation, Series 2013
evidencing proportionate interests in rights to receive
certain Revenues pursuant to the Lease Purchase
Agreement between the Trustee, as sublessor,
and the Town of Estes Park, Colorado, as sublessee
Dated May __, 2013
4818-1560-6803.1
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS ............................................................................................................................... 3
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND ISSUANCE OF CERTIFICATES
Section 2.01. Authorized Amount of Certificates .................................................................. 9
Section 2.02. Execution and Delivery of Certificates ............................................................ 9
Section 2.03. Certificate Details .......................................................................................... 10
Section 2.04. Limited Obligations ....................................................................................... 11
Section 2.05. Execution and Authentication of Certificates ................................................ 12
Section 2.06. Delivery of Certificates .................................................................................. 12
Section 2.07. Mutilated, Lost, Stolen or Destroyed Certificates ......................................... 12
Section 2.08. Registration of Certificates; Persons Treated as Registered Owners; Transfer
and Exchange of Certificates ......................................................................... 12
Section 2.09. Cancellation of Certificates............................................................................ 13
Section 2.10. Execution and Delivery of Additional Certificates ........................................ 13
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Certificate Fund ............................................................................................. 15
Section 3.02. Reserved ......................................................................................................... 16
Section 3.03. Acquisition Fund ............................................................................................ 16
Section 3.04. Rebate Fund ................................................................................................... 17
Section 3.05. Nonpresentment of Certificates ..................................................................... 18
Section 3.06. Reports to Town ............................................................................................. 18
Section 3.07. Moneys to be Held in Trust ........................................................................... 18
Section 3.08. Repayment to the Town from the Trustee ..................................................... 18
ARTICLE IV
REDEMPTION OF CERTIFICATES
Section 4.01. Redemption Dates and Prices ........................................................................ 19
Section 4.02. Redemption Upon Termination of the Lease Term by Reason of Certain
Events ............................................................................................................. 19
Section 4.03. Mandatory Sinking Fund Redemption ........................................................... 20
Section 4.04. Notice of Redemption .................................................................................... 22
Section 4.05. Redemption Payments ................................................................................... 22
Section 4.06. Cancellation ................................................................................................... 22
Section 4.07. Delivery of New Certificates Upon Partial Redemption of Certificates ........ 22
ARTICLE V
INVESTMENTS
Section 5.01. Investment of Moneys.................................................................................... 23
Section 5.02. Tax Certification ............................................................................................ 23
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4818-1560-6803.1
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.01. Representations, Covenants and Warranties Regarding Execution, Delivery
and Performance of Indenture ........................................................................ 24
Section 6.02. Duties of the Trustee ...................................................................................... 25
Section 6.03. Maintenance of Existence; Performance of Obligations ............................... 27
Section 6.04. Tax Covenant ................................................................................................. 27
Section 6.05. Sale or Encumbrance of Leased Property ...................................................... 27
Section 6.06. Rights of Trustee under Lease and Site Lease ............................................... 27
Section 6.07. Defense of Trust Estate .................................................................................. 28
Section 6.08. Compensation of Trustee ............................................................................... 28
Section 6.09. Resignation or Replacement of Trustee ......................................................... 28
Section 6.10. Conversion, Consolidation or Merger of Trustee .......................................... 29
Section 6.11. Intervention by Trustee .................................................................................. 30
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. Remedies of Trustee Upon the Occurrence of an Event of Default or Event of
Nonappropriation ........................................................................................... 30
Section 7.02. Remedies of Trustee Upon Event of Default by the Town under the Site Lease
........................................................................................................................ 30
Section 7.03. Failure to Perform by Trustee ........................................................................ 30
Section 7.04. Remedies of Owners Upon a Failure to Perform ........................................... 31
Section 7.05. Limitations Upon Rights and Remedies of Owners ...................................... 31
Section 7.06. Majority of Owners May Control Proceedings .............................................. 31
Section 7.07. Trustee to File Proofs of Claim in Receivership, Etc .................................... 31
Section 7.08. Trustee May Enforce Remedies Without Certificates ................................... 32
Section 7.09. No Remedy Exclusive.................................................................................... 32
Section 7.10. Waivers .......................................................................................................... 32
Section 7.11. Delay or Omission No Waiver ....................................................................... 32
Section 7.12. No Waiver of Default to Affect Another ....................................................... 32
Section 7.13. Position of Parties Restored Upon Discontinuance of Proceedings .............. 33
Section 7.14. Purchase of Leased Property by Owners; Application of Certificates Toward
Purchase Price ................................................................................................ 33
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Not Requiring Consent of Owners ........................ 33
Section 8.02. Supplemental Indentures Requiring Consent of Owners ............................... 34
Section 8.03. Execution of Supplemental Indenture ............................................................ 35
Section 8.04. Amendments, etc. of the Lease or Site Lease Not Requiring Consent of
Owners ........................................................................................................... 35
Section 8.05. Amendments, etc., of the Lease or the Site Lease Requiring Consent of
Owners ........................................................................................................... 36
iii
4818-1560-6803.1
ARTICLE IX
DISCHARGE OF INDENTURE ................................................................................................. 36
ARTICLE X
MISCELLANEOUS
Section 10.01. Further Assurances and Corrective Instruments ............................................ 37
Section 10.02. Financial Obligations of Trustee Limited to Trust Estate .............................. 37
Section 10.03. Evidence of Signature of Owners and Ownership of Certificates ................. 37
Section 10.04. Parties Interested Herein ................................................................................ 38
Section 10.05. Trustee Representative ................................................................................... 38
Section 10.06. Titles, Headings, Etc ...................................................................................... 38
Section 10.07. Manner of Giving Notices ............................................................................. 38
Section 10.08. No Individual Liability .................................................................................. 38
Section 10.09. Events Occurring on Days that are not Business Days .................................. 39
Section 10.10. Severability .................................................................................................... 39
Section 10.11. Captions ......................................................................................................... 39
Section 10.12. Applicable Law .............................................................................................. 39
APPENDIX A FORM OF CERTIFICATE
APPENDIX B DESCRIPTION OF THE LEASED PROPERTY
APPENDIX C FORM OF INVESTMENT LETTER
4818-1560-6803.1
THIS INDENTURE OF TRUST (this “Indenture”) is dated May __, 2013, and is
entered into by UMB BANK, n.a., a national banking association duly organized and validly
existing under the laws of the United States of America and authorized to exercise trust powers
of the character herein set forth, as trustee (the “Trustee”) for the benefit of the Owners (defined
herein) of the Certificates (defined herein).
RECITALS :
WHEREAS, the Town of Estes Park, Colorado (the “Town”) has an immediate need for a
multi-purpose events center and new stall barns at the Stanley Park Fairgrounds complex (the
“Project”); and
WHEREAS, the Town owns (a) the land that is legally described in Exhibit B attached
hereto (the “Site”); and (b) the building constructed on the Site and located at 170 MacGregor
Avenue and being used as the Town Hall (the “Building”); and
WHEREAS, in order to provide moneys for the construction of the Project, the Town has
entered into that certain Lease Purchase Agreement of even date herewith (the “Lease”) with the
Trustee whereby the Town has subleased, from the Trustee, the Site and the Building
(collectively, the “Leased Property”) more particularly described in Exhibit B attached hereto;
and
WHEREAS, pursuant to that certain Site Lease of even date herewith (the “Site Lease”)
between the Town and the Trustee, the Leased Property will be leased by the Town to the
Trustee, and the Leased Property is to be subleased to the Town by the Trustee under the Lease,
subject only to Permitted Encumbrances (as defined in the Lease); and
WHEREAS, pursuant to the Lease, and subject to the right of the Town to terminate the
Lease and other limitations as therein provided, the Town will pay certain Base Rentals and
Additional Rentals (as such terms are defined in the Lease) to the Trustee in consideration for the
right of the Town to use the Leased Property; and
WHEREAS, pursuant to this Indenture, the right of the Trustee to receive the Base
Rentals, and rights to receive certain other payments as provided in the Lease (with certain
exceptions as provided herein and in the Lease) will be placed in trust by the Trustee for the
benefit of the Owners (defined herein) of the Certificates (defined herein); and
WHEREAS, the Trustee (a) is a national banking association that is duly organized,
validly existing and in good standing under the laws of the United States of America and
authorized to exercise trust powers of the character herein set forth, (b) is duly qualified to do
business in the State of Colorado (the “State”), (c) is the lessee of the Leased Property pursuant
to the Site Lease and (d) is authorized, under its articles of association, action of its board of
directors and applicable law, to lease the Leased Property from the Town, to sublease the Leased
Property to the Town, to place in trust the Trust Estate (defined herein) and to execute, deliver
and perform its obligations under this Indenture; and
2
4818-1560-6803.1
WHEREAS, in order to allow the Town to finance the construction of the Project, the
Trustee will execute and deliver Certificates of Participation, Series 2013, in the aggregate
principal amount of $6,_______ (the “Certificates”) pursuant to this Indenture; and
WHEREAS, the Certificates evidence proportionate undivided interests in the right to
receive Revenues (defined herein), shall be payable solely from the Trust Estate (defined herein)
and no provision of the Certificates, this Indenture, the Lease or the Site Lease shall be construed
or interpreted (i) to directly or indirectly obligate the Town to make any payment in any Fiscal
Year beyond a Fiscal Year for which the Lease is in effect; (ii) as creating a debt or multiple
fiscal year direct or indirect debt or other financial obligation whatsoever of the Town within the
meaning of Article X, Section 6 or Article X, Section 20 of the Colorado Constitution or any
other constitutional or statutory limitation or provision; (iii) as a delegation of governmental
powers by the Town; (iv) as a loan or pledge of the credit or faith of the Town or as creating any
responsibility by the Town for any debt or liability of any person, company or corporation within
the meaning of Article XI, Section 1 of the Colorado Constitution; or (v) as a donation or grant
by the Town to, or in aid of, any person, company or corporation within the meaning of Article
XI, Section 2 of the Colorado Constitution; and
WHEREAS, the execution and performance of this Indenture by the Trustee has been
duly authorized by the Trustee and, upon the execution of this Indenture by the Trustee, this
Indenture will be enforceable against the Trustee in accordance with its terms, limited only by
bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting creditors’
rights generally, by equitable principles, whether considered at law or in equity, by the exercise
by the State and its governmental bodies of the police power inherent in the sovereignty of the
State and by the exercise by the United States of America of the powers delegated to it by the
Constitution of the United States of America; and
WHEREAS, the Trustee has entered into this Indenture for and on behalf of the Owners
(defined herein), and will, except as otherwise specifically provided herein, hold its rights
hereunder, including its rights with respect to the Trust Estate (defined herein), for the equal and
proportionate benefit of the Owners (defined herein), and will disburse moneys received by it in
accordance with this Indenture; and
WHEREAS, all things necessary to make the Certificates, when executed and delivered
by the Trustee as in this Indenture provided, legal, valid and binding assignments of
proportionate interests in the right to receive Revenues, as herein provided, and to constitute this
Indenture a legal, valid and binding instrument for the security of the Certificates, in accordance
with its terms, have been done and performed;
NOW, THEREFORE, the Trustee declares for the benefit of the Owners of the
Certificates as follows:
DESCRIPTION OF TRUST ESTATE
That the Trustee shall hold in trust, upon the terms herein set forth for the equal and
proportionate benefit, security and protection of all Owners, without privilege, priority or
distinction as to the lien or otherwise of any of the Certificates over any other of the Certificates,
3
4818-1560-6803.1
all and singular the following described property, franchises and income, including any title
therein acquired after these presents (the “Trust Estate”):
(a) the Leased Property (defined herein) and all buildings, additions and real
property improvements now or hereafter located thereon and the tenements,
hereditaments, appurtenances, rights, privileges and immunities thereto belonging or
appertaining, subject to the terms of the Lease and the Site Lease including, but not
limited to, the terms of the Lease permitting the existence of Permitted Encumbrances (as
defined in the Lease);
(b) all rights, title and interest of the Trustee in, to and under the Lease and
the Site Lease (other than the Trustee’s rights to payment of its fees and expenses under
the Lease and the rights of third parties to Additional Rentals payable to them under the
Lease);
(c) all Base Rentals (defined in the Lease);
(d) all Additional Rentals (defined in the Lease) that are payable to the
Trustee for the benefit of the Owners;
(e) the Purchase Option Price (defined in the Lease), if paid;
(f) all Net Proceeds (defined in the Lease); and
(g) all money and securities from time to time held by the Trustee under this
Indenture in the Certificate Fund, and the Project Account;
PROVIDED, HOWEVER, that if the principal of the Certificates and the premium, if
any, and the interest due or to become due thereon, shall be paid at the times and in the manner
provided in the Certificates in accordance with the terms and provisions thereof, and if there are
paid to the Trustee all sums of money due or to become due to the Trustee in accordance with the
terms and provisions hereof, then, upon such final payment, this Indenture and the rights hereby
granted shall cease, determine and be void; otherwise this Indenture is to be and remain in full
force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly declared, that all
Certificates executed and delivered and secured hereunder are to be executed and delivered and
all said property, rights, interests, revenues and receipts hereby pledged, assigned and mortgaged
are to be dealt with and disposed of under, upon and subject to the terms, conditions, stipulations,
covenants, agreements, trusts, uses and purposes as hereinafter expressed, and the Trustee has
agreed and covenanted, and does hereby agree and covenant, for the benefit of the Owners, as
follows:
ARTICLE I
DEFINITIONS
The following capitalized terms shall have the following meanings in this Indenture:
4
4818-1560-6803.1
“Acquisition Fund” means the special fund created by Section 3.03 hereof.
“Additional Certificates” means any certificates of participation executed and delivered
after the execution and delivery of the Certificates pursuant to Section 2.10 hereof.
“Additional Rentals” is defined in the Lease.
“Authorized Officer” is defined in the Lease.
“Base Rentals” is defined in the Lease.
“Bond Counsel” means (a) as of the date of execution and delivery of the Certificates,
Kutak Rock LLP, and (b) as of any other date, Kutak Rock LLP or such other attorneys selected
by the Trustee with nationally recognized expertise in the issuance of municipal securities, the
interest on which is excludable from gross income for federal income tax purposes.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banks
in New York, New York or Denver, Colorado are authorized by law to remain closed.
“Certificate Fund” means the special fund created by Section 3.01 hereof.
“Certificates” means the Certificates of Participation, Series 2013, in the aggregate
principal amount of $6,_______ which have been executed and delivered pursuant to this
Indenture.
“Code” means the Internal Revenue Code of 1986, as amended, and Treasury regulations
promulgated thereunder.
“Completion Date” means no later than _________________.
“Costs” or “Costs of the Project” means all costs and expenses to be incurred, and the
reimbursement to the Town for all costs and expenses heretofore incurred, by the Town prior to
the Completion Date (except as otherwise provided below), including, without limitation:
(a) the rental payment by the Trustee for, and other costs incurred in
connection with the leasing of, the Leased Property pursuant to the Site Lease and
obtaining, or confirming, the Trustee’s interest therein;
(b) obligations incurred or assumed for acquisition of, and for labor, materials
and equipment in connection with the Project;
(c) the cost of performance and payment bonds and of insurance of all kinds
(including, without limitation, title and liability insurance) that may be necessary or
appropriate in connection with the Project;
(d) the costs of engineering, architectural and other professional and technical
services, including obligations incurred or assumed for preliminary design and
5
4818-1560-6803.1
development work, test borings, surveys, estimates, plans and specifications in
connection with the Project;
(e) administrative costs related to the Project incurred by the Town prior to
the Completion Date, including supervision of the construction, acquisition, renovation
and installation as well as the performance by the Town of all of the other duties required
by or consequent upon the Project, including, without limitation, costs of preparing and
securing all project documents, architectural, engineering and other professional and
technical fees, legal fees and expenses, appraisal fees, independent inspection fees,
auditing fees and advertising expenses in connection with the Project;
(f) all costs which shall be required to be paid under the terms of any Project
Contract;
(g) all costs which are considered to be a part of the costs of the Project in
accordance with generally accepted accounting principles;
(h) interest on the Certificates issued to finance the Project through the
Completion Date, to the extent the moneys in the Certificate Fund are not sufficient to
pay such interest;
(i) the actual costs incurred by the Trustee in acquiring any property or
making any improvements for which moneys are deposited with the Trustee pursuant to
Section 3.03(b) hereof; and
(j) any and all other costs necessary to effect the Project or to acquire or
improve any Leased Property to the extent the same are permitted by the laws of the State
and will not adversely affect the exclusion from gross income for federal income tax
purposes of interest on the Certificates.
“Costs of Issuance” means administrative costs of executing and delivering of the
Certificates, including any fees and expenses of the Trustee, any fees and expenses of any
underwriter or financial advisor in connection with the execution and delivery of the Certificates,
legal fees and expenses, costs incurred in obtaining ratings from rating agencies, costs of
immediately available funds, costs of publication, printing and engraving, accountants’ fees and
recording and filing fees.
“Costs of Issuance Account” means the account of the Acquisition Fund created by and
designated as such in Section 3.03(a) hereof.
“Defeasance Securities” means Permitted Investments which are:
(a) cash;
(b) U.S. Treasury Certificates, Notes and Bonds, including State and Local
Government Series (“SLGs”);
6
4818-1560-6803.1
(c) direct obligations of the U.S. Treasury which have been stripped by the
U.S. Treasury itself;
(d) Resolution Funding Corp. (REFCORP) strips: only the interest component
of REFCORP strips which have been stripped by request to the Federal Reserve Bank of
New York in book entry form;
(e) pre-refunded municipal bonds rated “Aaa” by Moody's and “AAA” by
S&P; provided that if the issue is only rated by S&P (i.e., there is no Moody's rating),
then the pre-refunded bonds must have been pre-refunded with cash, direct U.S. or U.S.
guaranteed obligations, or AAA-rated pre-refunded municipal bonds;
(f) obligations issued by the following agencies which are backed by the full
faith and credit of the U.S.:
(i) U.S. Export-Import Bank (Eximbank) direct obligations or fully
guaranteed certificates of beneficial ownership;
(ii) Farmers Home Administration (FmHA);
(iii) Federal Financing Bank;
(iv) General Services Administration Participation Certificates;
(v) U.S. Maritime Administration Guaranteed Title XI financing;
(vi) U.S. Department of Housing and Urban Development (HUD):
(A) Project Notes;
(B) Local Authority Bonds;
(C) New Communities Debentures—U.S. government
guaranteed debentures; and
(D) U.S. Public Housing Notes and Bonds—U.S. government
guaranteed public housing notes and bonds.
“Equipment” is defined in the Lease.
“Event of Default” means an event described in Section 12.01 of the Lease.
“Event of Nonappropriation” means an event described in Section 6.04 of the Lease.
“Failure to Perform” is defined in Section 7.03 hereof.
“Fiscal Year” means the fiscal year of the Town, which begins on January 1 and ends on
December 31 of each year.
7
4818-1560-6803.1
“Indenture” means this Indenture of Trust and any amendment or supplement hereto.
“Independent Counsel” means an attorney duly admitted to the practice of law before the
highest court in the State and who is not an employee of the Town or the Trustee.
“Initial Purchaser” means Branch Banking and Trust Company.
“Interest Payment Date” means June 1 and December 1 of each year, beginning on
December 1, 2013, with respect to the Certificates.
“Investment Instructions” means (a) the Investment Instructions delivered to the Trustee
upon the original delivery of the Certificates and (b) any subsequent Investment Instructions,
amending or superseding such Investment Instructions, accompanied by an opinion of Bond
Counsel addressed to the Town and the Trustee, substantially to the effect that such amendments
or modifications of the original Investment Instructions will not cause the interest paid or to be
paid on the Certificates to be or become includible in gross income for purpose of federal or
State of Colorado income taxation.
“Lease” means the Lease Purchase Agreement dated the date hereof between the Trustee,
as sublessor, and the Town, as sublessee, and any amendment or supplement thereto.
“Lease Term” is defined in the Lease.
“Leased Property” is defined in the Lease.
“Moody’s” means Moody’s Investors Service and its successors and assigns.
“Net Proceeds” is defined in the Lease.
“Operations Center” means the principal operations office of the Trustee.
“Opinion of Counsel” means a written opinion of legal counsel, who may be counsel to
the Trustee.
“Outstanding” means all Certificates which have been executed and delivered, except:
(a) Certificates canceled or which shall have been surrendered to the Trustee
for cancellation;
(b) Certificates in lieu of which other Certificates have been executed under
Section 2.07 or 2.08 hereof;
(c) Certificates which have been redeemed as provided in Article IV hereof
(including Certificates redeemed on payment of an amount less than the outstanding
principal thereof and accrued interest thereon to the redemption date as provided in
Section 4.01 hereof);
(d) Certificates which are due and for which the Trustee holds funds for the
benefit of the Owner thereof pursuant to Section 3.07 hereof; and
8
4818-1560-6803.1
(e) Certificates which are otherwise deemed discharged pursuant to Article IX
hereof.
“Owner” of a Certificate means the registered owner of any Certificate as shown in the
registration records of the Trustee.
“Permitted Encumbrances” is defined in the Lease.
“Permitted Investments” means any investment which is a lawful investment permitted
for the investment of funds of the Town by the laws of the State and by any ordinance, resolution
or policy of the Town.
“Person” means any natural person, firm, corporation, partnership, limited liability
company, state, political subdivision of any state, other public body or other organization or
association.
“Project” means the acquisition, construction, renovation and equipping of a multi-
purpose events center and new stall barns at the Stanley Park Fairgrounds complex.
“Project Account” means the account of the Acquisition Fund created by and designated
as such in Section 3.03(a) hereof.
“Project Contract” means, with respect to the Project, contracts for services or materials
for the construction, acquisition or installation of the Project, including, but not limited to,
contracts for construction, engineering and architectural services.
“Purchase Option Price” is defined in the Lease.
“Rebate Fund” means the special fund created by Section 3.04 hereof.
“Record Date” means, with respect to each Interest Payment Date, the fifteenth day of the
month (whether or not a Business Day) immediately preceding the month in which such Interest
Payment Date occurs.
“Requirement of Law” means any federal, state or local statute, ordinance, rule or
regulation, any judicial or administrative order (whether or not on consent), request or judgment,
any common law doctrine or theory, any provision or condition of any permit required to be
obtained or maintained, or any other binding determination of any governmental authority
relating to the ownership or operation of property, including but not limited to any of the
foregoing relating to zoning, environmental, health or safety matters.
“Revenues” is defined in the Lease.
“S&P” means Standard & Poor’s Public Finance Ratings, and its successors and assigns.
“Site Lease” is defined in the Lease.
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“Special Record Date” means a special date fixed to determine the names and addresses
of Owners of Certificates for purposes of paying defaulted interest in accordance with Section
2.02 hereof.
“State” means the state of Colorado.
“Supplemental Indenture” means any indenture supplementing or amending this
Indenture that is adopted pursuant to Article VIII hereof.
“Town” is defined in the Lease.
“Trust Estate” means the property placed in trust by the Trustee pursuant to the
Description of the Trust Estate in the preambles to this Indenture. The Trust Estate does not
include the Rebate Fund or any escrow accounts established pursuant to Section 9.01 hereof.
“Trustee” is defined in the Lease.
ARTICLE II
AUTHORIZATION, TERMS, EXECUTION AND ISSUANCE OF CERTIFICATES
Section 2.01. Authorized Amount of Certificates. No Certificates may be executed
and delivered hereunder except in accordance with this Article. The aggregate principal amount
of Certificates that may be executed and delivered hereunder shall be $6,_______ except as
provided in Section 2.10 of this Indenture.
Section 2.02. Execution and Delivery of Certificates.
(a) The Certificates shall be executed, sold and delivered hereunder, for the
purpose of paying the Costs of the Project.
(b) The Certificates shall be issuable only as fully registered Certificates in
the denominations of $25,000 and in integral multiples of $5,000 if in excess of $25,000
(provided that no Certificate may be in a denomination which exceeds the principal
coming due on any maturity date and no individual Certificate may be issued for more
than one maturity). The Certificates shall be numbered in such manner as shall be
determined by the Trustee.
(c) The principal of (other than principal due on each mandatory sinking fund
redemption date prior to maturity) and premium, if any, and the final installment of
interest on any Certificate shall be payable to the Owner thereof as shown on the
registration records of the Trustee upon maturity or prior redemption thereof (other than
principal due on each mandatory sinking fund redemption date prior to maturity) and
upon presentation and surrender at the Operations Center of the Trustee. Payment of
interest (other than the final installment of interest) on each Certificate shall be made by
check or draft of the Trustee mailed, on each Interest Payment Date, to the Owner thereof
at the address of such Owner as it last appears on the registration records of the Trustee at
the close of business on the Record Date. Principal due on any Certificate on a
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mandatory sinking fund redemption date (other than on final maturity) shall be payable
by check or draft of the Trustee mailed on the mandatory sinking fund redemption date to
the Owner thereof at the address of such Owner as it last appears on the registration
records of the Trustee at the close of business on the Record Date. Any such interest, or
principal due on a mandatory sinking fund redemption date, not so timely paid (other
than the final installment of interest) shall cease to be payable to the person who is the
Owner thereof at the close of business on the Record Date and shall be payable to the
person who is the Owner thereof at the close of business on a Special Record Date for the
payment of such defaulted interest or principal. Such Special Record Date shall be fixed
by the Trustee whenever moneys become available for payment of the defaulted interest
or principal, and notice of the Special Record Date shall be given by the Trustee to the
Owners of the Certificates, not less than 10 days prior to the Special Record Date, by
first-class mail to each such Owner as shown on the Trustee’s registration records on a
date selected by the Trustee, stating the date of the Special Record Date and the date
fixed for the payment of such defaulted interest or principal. Alternative means of
payment of interest (other than the final installment of interest), and of the principal due
on a mandatory sinking fund redemption date (other than on final maturity) may be used
if mutually agreed to in writing between the Owner of any Certificate and the Trustee.
All payments shall be made in lawful money of the United States of America without
deduction for the services of the Trustee.
Section 2.03. Certificate Details.
(a) The Certificates evidence undivided proportionate interests in the right to
receive certain Revenues under the Lease. The Certificates shall be dated May __, 2013,
shall mature on the date and in the amount set forth below and shall bear interest from
their original dated date to maturity or prior redemption at the rate per annum set forth
below, payable on each Interest Payment Date; except that Certificates which are reissued
upon transfer, exchange or other replacement shall bear interest at the rate per annum
shown below from the most recent Interest Payment Date to which interest has been paid
or duly provided for, or if no interest has been paid, from the original dated date of the
Certificates. Interest on the Certificates shall be calculated on the basis of a year of 360
days, consisting of twelve 30-day months.
The Certificates shall be executed and delivered in the aggregate principal amount
of $6,_______, shall mature on December 1, 2027, subject to mandatory sinking fund
redemption prior to maturity as set forth in Section 4.03 hereof, and shall bear interest at
the rate per annum of ____%.
(b) The Certificates shall be in substantially the form set forth in Appendix A
hereto, with such changes thereto, not inconsistent herewith, as may be necessary or
desirable and approved by the official of the Trustee executing the same (whose manual
or facsimile signature thereon shall constitute conclusive evidence of such approval). All
covenants, statements, representations and agreements contained in the Certificates are
hereby approved and adopted as the covenants, statements, representations and
agreements of the Trustee. Although attached as an appendix for the convenience of the
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reader, Appendix A is an integral part of this Indenture and is incorporated herein as if set
forth in full in the body of this Indenture.
(c) Notwithstanding any other provision hereof, the Certificates initially shall
be delivered only in physical, typewritten form registered in the name of the Initial
Purchaser or beneficial owner thereof.
Section 2.04. Limited Obligations. Each Certificate shall evidence an undivided
proportionate interest in the right to receive Revenues and shall be payable solely from the Trust
Estate. No provision of the Certificates, this Indenture, the Lease or the Site Lease shall be
construed or interpreted (a) to directly or indirectly obligate the Town to make any payment in
any Fiscal Year in excess of amounts appropriated for such Fiscal Year; (b) as creating a debt or
multiple fiscal year direct or indirect debt or other financial obligation whatsoever of the Town
within the meaning of Article XI, Section 6 or Article X, Section 20 of the Colorado Constitution
or any other constitutional or statutory limitation or provision; (c) as a delegation of
governmental powers by the Town; (d) as a loan or pledge of the credit or faith of the Town or as
creating any responsibility by the Town for any debt or liability of any person, company or
corporation within the meaning of Article XI, Section 1 of the Colorado Constitution; or (e) as a
donation or grant by the Town to, or in aid of, any person, company or corporation within the
meaning of Article XI, Section 2 of the Colorado Constitution.
NEITHER THE LEASE NOR THE CERTIFICATES CONSTITUTES A GENERAL
OBLIGATION INDEBTEDNESS OR A MULTIPLE-FISCAL YEAR DIRECT OR INDIRECT
DEBT OR OTHER FINANCIAL OBLIGATION WHATSOEVER OF THE TOWN WITHIN
THE MEANING OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION.
NEITHER THE LEASE, THE INDENTURE NOR THE CERTIFICATES HAVE DIRECTLY
OR INDIRECTLY OBLIGATED THE TOWN TO MAKE ANY PAYMENTS BEYOND
THOSE APPROPRIATED FOR ANY FISCAL YEAR IN WHICH THE LEASE SHALL BE
IN EFFECT. EXCEPT TO THE EXTENT PAYABLE FROM THE PROCEEDS OF THE
SALE OF THE CERTIFICATES AND INCOME FROM THE INVESTMENT THEREOF,
FROM NET PROCEEDS OF CERTAIN INSURANCE POLICIES AND CONDEMNATION
AWARDS, FROM NET PROCEEDS OF THE SUBLEASING OF OR A LIQUIDATION OF
THE TRUSTEE’S INTEREST IN THE LEASED PROPERTY OR FROM OTHER AMOUNTS
MADE AVAILABLE UNDER THE INDENTURE, THE CERTIFICATES WILL BE
PAYABLE DURING THE LEASE TERM SOLELY FROM BASE RENTALS TO BE PAID
BY THE TOWN UNDER THE LEASE. ALL PAYMENT OBLIGATIONS OF THE TOWN
UNDER THE LEASE, INCLUDING, WITHOUT LIMITATION, THE OBLIGATION OF THE
TOWN TO PAY BASE RENTALS, ARE FROM YEAR TO YEAR ONLY AND DO NOT
CONSTITUTE A MANDATORY PAYMENT OBLIGATION OF THE TOWN IN ANY
FISCAL YEAR BEYOND A FISCAL YEAR IN WHICH THE LEASE SHALL BE IN
EFFECT. THE LEASE IS SUBJECT TO ANNUAL RENEWAL AT THE OPTION OF THE
TOWN AND WILL BE TERMINATED UPON THE OCCURRENCE OF AN EVENT OF
NONAPPROPRIATION OR EVENT OF DEFAULT. IN SUCH EVENT, ALL PAYMENTS
FROM THE TOWN UNDER THE LEASE WILL TERMINATE, AND THE CERTIFICATES
AND THE INTEREST THEREON WILL BE PAYABLE FROM CERTAIN MONEYS, IF
ANY, HELD BY THE TRUSTEE UNDER THE INDENTURE, AND ANY MONEYS MADE
AVAILABLE BY ACTION OF THE TRUSTEE REGARDING THE LEASED PROPERTY.
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Section 2.05. Execution and Authentication of Certificates. The manual signature of
a duly authorized signatory of the Trustee shall appear on each Certificate. Any Certificate shall
be deemed to have been executed by a duly authorized signatory of the Trustee if signed by the
Trustee, but it shall not be necessary that the same signatory sign all of the Certificates issued
hereunder. If any signatory of the Trustee whose signature appears on a Certificate shall cease to
be such official before delivery of the Certificates, such signature shall nevertheless be valid and
sufficient for all purposes, the same as if he or she had remained a duly authorized signatory of
the Trustee until delivery.
Section 2.06. Delivery of Certificates. Upon the execution and delivery of this
Indenture, the Trustee shall execute and deliver the Certificates to the Initial Purchaser thereof,
as hereinafter in this Section provided:
(a) Prior to the delivery by the Trustee of any of the Certificates, there shall
have been filed with the Trustee (i) an originally executed copy of this Indenture, (ii) an
executed copy of the ordinance of the Board of Trustees of the Town approving the Site
Lease and the Lease, (iii) executed copies of the Lease and the Site Lease, and (iv) the
title insurance policy or commitment required by Section 8.05 of the Lease.
(b) Thereupon, the Trustee shall deliver such Certificates to the Initial
Purchaser thereof, upon payment to the Trustee of the agreed purchase price, which sum
shall be applied as follows: (i) the amount required to be deposited into the Costs of
Issuance Account shall be deposited into the Costs of Issuance Account; (ii) the amount
of $6,000,000 shall be deposited into the Project Account of the Acquisition Fund and
paid to the Town as the lump-sum rental payment due for the acquisition by the Trustee
of a leasehold interest in the Leased Property pursuant to the Site Lease.
Section 2.07. Mutilated, Lost, Stolen or Destroyed Certificates. In the event that any
Certificate is mutilated, lost, stolen or destroyed, a new Certificate may be executed and
delivered by the Trustee, of like date, maturity and denomination as that mutilated, lost, stolen or
destroyed; provided that the Trustee shall have received indemnity from the registered owner of
the Certificate satisfactory to it and provided further, in case of any mutilated Certificate, that
such mutilated Certificate shall first be surrendered to the Trustee, and in the case of any lost,
stolen or destroyed Certificate, that there shall be first furnished to the Trustee evidence of such
loss, theft or destruction satisfactory to the Trustee. In the event that any such Certificate shall
have matured, instead of executing and delivering a duplicate Certificate, the Trustee may pay
the same without surrender thereof. The Trustee may charge the registered owner of the
Certificate with its reasonable fees and expenses for this service.
Section 2.08. Registration of Certificates; Persons Treated as Registered Owners;
Transfer and Exchange of Certificates. Books for the registration and for the transfer of
Certificates shall be kept by the Trustee, which is hereby appointed the registrar. Upon surrender
for transfer of a Certificate at the Operations Center of the Trustee, the Trustee shall execute and
deliver in the name of the transferee or transferees a new fully registered Certificate or
Certificates of a like aggregate principal amount and of the same maturity. A Certificate may be
transferred only upon receipt by the Trustee from the proposed transferee of an Investment Letter
substantially in the form of Appendix C to this Indenture.
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Certificates may be exchanged at the Operations Center of the Trustee for an equal
aggregate principal amount of Certificates of the same maturity and of other authorized
denominations. The Trustee shall execute and deliver Certificates which the registered owner
making the exchange is entitled to receive, bearing numbers not contemporaneously
Outstanding.
All Certificates presented for transfer or exchange shall be accompanied by a written
instrument or instruments of transfer or authorization for exchange, in form and with guaranty of
signature satisfactory to the Trustee, duly executed by the registered owner or by his or her
attorney duly authorized in writing.
The Trustee shall not be required to transfer the Certificates during the period beginning
on a Record Date and ending on the next Interest Payment Date of the Certificates nor to transfer
or exchange any Certificate after the mailing of notice calling such Certificate or any portion
thereof for redemption has been given as herein provided, nor during the period of 15 days next
preceding the giving of such notice of redemption.
New Certificates delivered upon any transfer or exchange shall evidence the same
obligations as the Certificates surrendered, shall be secured by this Indenture and entitled to all
of the security and benefits hereof to the same extent as the Certificates surrendered. As to any
Certificate, the person in whose name the same shall be registered shall be deemed and regarded
as the absolute owner thereof for all purposes, and payment of the principal of, premium, if any,
and interest on the Certificate shall be made only to or upon the written order of the registered
owner thereof or his or her legal representative, but such registration may be changed as
hereinabove provided. All such payments shall be valid and effectual to satisfy and discharge
such Certificate to the extent of the sum or sums paid.
The Trustee shall require the payment, by any Certificate Owner requesting transfer or
exchange of Certificates, of any tax, Trustee’s fee, fee or other governmental charge required to
be paid with respect to such transfer or exchange.
Section 2.09. Cancellation of Certificates. Whenever any Outstanding Certificate shall
be delivered to the Trustee for cancellation pursuant to this Indenture, upon payment thereof or
for or after replacement pursuant to Section 2.07 or 2.08 of this Indenture, such Certificate shall
be promptly canceled and cremated or otherwise destroyed by the Trustee, in accordance with
the customary practices of the Trustee and applicable retention laws.
Section 2.10. Execution and Delivery of Additional Certificates. So long as the Lease
Term shall remain in effect and no Event of Nonappropriation or Event of Default shall have
occurred, one or more issues of Additional Certificates (the “Additional Certificates”) may be
executed and delivered upon the terms and conditions provided herein.
Additional Certificates may be executed and delivered to provide funds for any one or
more of the following: (i) refunding all or any portion of the Outstanding Certificates and/or
Additional Certificates; (ii) at any time or from time to time, making such modifications and
improvements in, on or to the Leased Property as the Town may deem necessary or desirable;
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and (iii) paying costs incurred in connection with the execution and delivery of the Additional
Certificates, any deposit to a reserve fund that is required and capitalized interest, if any.
Additional Certificates may be issued only upon there being filed with the Trustee:
(a) Originally executed counterparts of a Supplemental Indenture and an
amendment to the Lease adopted in accordance with the requirements of Article VIII
hereof, including requirements regarding approval of the Certificate Owners, if
applicable, expressly providing that, for all the purposes hereof, the Leased Property
shall, in the case of (ii) above, include any property, buildings or equipment being
financed by the Additional Certificates and further providing for an increase in the Base
Rentals required to be paid to the Trustee under Appendix B to the Lease in such amount
as shall be necessary to pay (assuming that no Event of Nonappropriation or Event of
Default shall occur), the principal of and interest on the Certificates and any Additional
Certificates theretofore executed and delivered and Outstanding as well as the Additional
Certificates proposed to be executed and delivered.
(b) A written opinion or opinions of Bond Counsel, mutually acceptable to the
Town and the Trustee, to the effect that the amendment to the Lease and the execution
and delivery of the Additional Certificates have been duly authorized, that the
amendment to the Lease is valid and enforceable against the Town, that the exclusion
from federal income taxation of the interest on the Certificates and any Additional
Certificates theretofore executed and delivered with the expectation that the interest
thereon will not be includible in federal income taxation will not be adversely affected by
the execution and delivery of the Additional Certificates proposed to be executed and
delivered, and that the execution and delivery of the Additional Certificates will not
constitute a default under the Lease or this Indenture nor cause any violation of the
covenants, agreements or representations in the Lease or this Indenture.
(c) Evidence that the amount of the title insurance policy or policies required
by Section 8.05 of the Lease has been increased, if necessary, to reflect the amount of the
Certificates and Additional Certificates theretofore executed and delivered plus the
Additional Certificates, (or such lesser amount as shall be the maximum insurable value
of the Leased Property that is to be insured by such policy or policies).
(d) A written order to the Trustee by the Town to deliver the Additional
Certificates to the purchaser or purchasers therein identified upon payment to the Trustee
of a specified sum, plus accrued interest, if any.
Additional Certificates shall, in all cases, bear interest at fixed interest rates and, except
for Additional Certificates that are executed and delivered for the purpose of refunding all of the
Outstanding Certificates and Additional Certificates and for paying the costs, establishing a
reserve fund and funding capitalized interest, if any, in connection with such refunding, shall
mature, including mandatory sinking fund redemption dates, if any, on December 1 of each year,
shall pay interest on June 1 and December 1 of each year and shall not be subject to redemption
earlier than the Certificates. Each of the Additional Certificates executed and delivered pursuant
to this Section 2.10 shall evidence an assignment of a proportionate interest in rights to receive
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Revenues under the Lease, as amended, proportionately and ratably secured with the Certificates
originally executed and delivered and all other issues of Additional Certificates, if any, executed
and delivered pursuant to this Section 2.10, without preference, priority or distinction of any
Certificates or Additional Certificates over any other.
No Additional Certificates may be executed and delivered without the prior written
consent of the Certificate Owners of a majority in aggregate principal amount of the Outstanding
Certificates and Additional Certificates, if any, previously executed and delivered, except for a
refunding of all of the Outstanding Certificates and Additional Certificates previously executed
and delivered.
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Certificate Fund.
(a) Creation of the Certificate Fund. A special fund is hereby created and
established by the Trustee to be designated the Certificates of Participation Fund (the
“Certificate Fund”), which shall be used to pay the principal of, premium, if any, and
interest on the Certificates. Within the Certificate Fund there are hereby created and
established an Interest Account and a Principal Account which shall be used as set forth
in subsection (d) of this Section.
(b) Payments into the Interest Account of the Certificate Fund. There shall
be deposited into the Interest Account of the Certificate Fund (i) all accrued interest
received at the time of the execution and delivery of the Certificates; (ii) that portion of
each payment of Base Rentals made by the Town which is designated and paid as the
interest component thereof under Appendix B to the Lease; (iii) any moneys transferred
to the Interest Account of the Certificate Fund from the Project Account pursuant to
Section 3.03(d) hereof; and (iv) all other moneys received by the Trustee under this
Indenture accompanied by directions that such moneys are to be deposited into the
Interest Account of the Certificate Fund.
(c) Payments into the Principal Account of the Certificate Fund. There
shall be deposited into the Principal Account of the Certificate Fund (i) that portion of
each payment of Base Rentals made by the Town which is designated and paid as the
principal component thereof under Appendix B to the Lease; (ii) any moneys transferred
to the Principal Account of the Certificate Fund from the Project Account pursuant to
Section 3.03(d) hereof; and (iii) all other moneys received by the Trustee under this
Indenture accompanied by directions that such moneys are to be deposited into the
Principal Account of the Certificate Fund.
(d) Use of Moneys in the Certificate Fund. Moneys in the Interest Account
of the Certificate Fund shall be used solely for the payment of interest on the Certificates
and moneys in the Principal Account of the Certificate Fund shall be used solely for the
payment of the principal of and premium, if any due on the Certificates; provided that
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(i) in the event that there are any remaining moneys upon payment of the interest due on
the Certificates, such moneys may be used for the payment of principal of and premium,
if any, due on the Certificates; (ii) moneys representing accrued interest received at the
time of the execution and delivery of the Certificates shall be used solely to pay the first
interest due on the Certificates; (iii) the Purchase Option Price and any other moneys
transferred to the Certificate Fund with specific instructions that such moneys be used to
pay the redemption price of Certificates shall be used solely to pay the redemption price
of Certificates; and (iv) moneys transferred from the Project Account following the
Completion Date of the Project shall be used to pay the principal of the Certificates;
provided, further, that all moneys in the Certificate Fund shall be available to pay the
redemption price of Certificates in connection with a redemption of all the Certificates
and to pay the principal of, premium, if any, and interest on the Certificates following an
Event of Default or Event of Nonappropriation.
Section 3.02. Reserved.
Section 3.03. Acquisition Fund.
(a) Creation of the Acquisition Fund. A special fund is hereby created and
established by the Trustee to be designated the Acquisition Fund (the “Acquisition
Fund”), and, within such fund, the Costs of Issuance Account and the Project Account.
The Trustee may establish such additional accounts within the Acquisition Fund or such
subaccounts within any of the existing or any future accounts of the Acquisition Fund as
may be necessary or desirable.
(b) Deposits into the Acquisition Fund. There shall be deposited into the
Costs of Issuance Account proceeds of the sale of Certificates or other legally available
moneys in the amount of $_________ in connection with the execution and delivery of
the Certificates.
(c) Use of Moneys in the Costs of Issuance Account. Moneys held in the
Costs of Issuance Account shall be used to pay Costs of Issuance as directed by the
Town. The Trustee shall transfer to the Project Account any amounts held in the Costs of
Issuance Account that are not required to pay Costs of Issuance.
(d) Use of Moneys in the Project Account. Moneys held in the Project
Account shall be disbursed to the Town (i) upon the execution and delivery by the Town
of the Site Lease and the Lease for the lump-sum payment of the rent due to the Town by
the Trustee for a leasehold interest in the Leased Property pursuant to the terms of the
Site Lease and shall be used by the Town to pay Costs of the Project, and (ii) at any later
date prior to the Completion Date, upon direction of the Town, in the event moneys are
transferred to the Project Account pursuant to subparagraph (c) of this Section; provided,
however, that no such disbursement shall be made unless and until a title insurance policy
in respect of such property, or a binding commitment therefor, is provided to the Trustee
as set forth in Section 8.05 of the Lease. If an Event of Default or Event of
Nonappropriation shall have occurred, the Trustee, as it deems appropriate in the best
interests of the Owners, shall either disburse moneys held in the Project Account as
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provided in the preceding sentence or apply such moneys as provided in Article VII
hereof. After the Completion Date, any moneys remaining in the Project Account and
any earnings thereon, minus any amount estimated by an Authorized Officer of the Town
to be necessary to pay Costs of the Project, shall be transferred by the Trustee (i) to the
Principal Account of the Certificate Fund or (ii) with the consent of the Town to make
improvements or additions to the Leased Property or for the acquisition of additional
property that will be leased to the Town, or any combination thereof, as the Town may
determine and direct.
Section 3.04. Rebate Fund.
(a) Creation of the Rebate Fund. A special fund is hereby created and
established by the Trustee to be designated the Rebate Fund (the “Rebate Fund”).
(b) Deposits into the Rebate Fund. There shall be deposited into the Rebate
Fund (i) all amounts paid by the Town pursuant to subsection (e) of this Section; and
(ii) all other moneys delivered to the Trustee that are accompanied by instructions to
deposit the same into the Rebate Fund.
(c) Use of Moneys in the Rebate Fund. Not later than 60 days after
December 1, 2017, and every five years thereafter, the Trustee shall pay to the United
States of America 90% of the amount required to be on deposit in the Rebate Fund as of
such payment date. No later than 60 days after the final retirement of the Certificates, the
Trustee shall pay to the United States of America 100% of the amount required to be on
deposit in the Rebate Fund which shall remain in effect for such period of time as is
necessary for such final payment to be made. Each payment required to be paid to the
United States of America pursuant to this Section shall be filed with the Internal Revenue
Service Center, Ogden Submission Processing Center, Ogden, Utah 84201. Each
payment shall be accompanied by a copy of the Internal Revenue Form 8038-T and a
statement summarizing the determination of the amount to be paid to the United States of
America. The Trustee reserves the right, in all events, to pursue such remedies and
procedures as are available to it in order to assert any claim of overpayment of any
rebated amounts.
(d) Administration of Rebate Fund. The Trustee shall make or cause to be
made all requisite rebate calculations so as to provide the information required to transfer
moneys to the Rebate Fund pursuant to subsection (b) of this Section. The Trustee shall
make deposits to and disbursements from the Rebate Fund in accordance with the
Investment Instructions (the “Investment Instructions”) and the Tax Compliance
Certificate (the “Tax Compliance Certificate”) executed by the Town in connection with
the execution and delivery of the Certificates or any similar certificate or instrument
delivered by the Town in connection with the execution and delivery of any Additional
Certificates. The Trustee shall invest the Rebate Fund pursuant to said Investment
Instructions and shall deposit income from said investments immediately upon receipt
thereof in the Rebate Fund, all as set forth in the Investment Instructions. The Investment
Instructions may be superseded or amended by new Investment Instructions drafted by,
and accompanied by an opinion of, Bond Counsel addressed to the Trustee to the effect
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that the use of said new Investment Instructions will not cause the interest on the
Certificates to be includible in the gross income of the recipients thereof for purposes of
federal income taxation. The Trustee may employ, at its expense, a designated agent to
calculate the amount of deposits to and disbursements from the Rebate Fund. If a
withdrawal from the Rebate Fund is permitted as a result of the computation described in
the Investment Instructions, the amount withdrawn shall be deposited in the Certificate
Fund. Record of the determinations required by this Section and the Investment
Instructions must be retained by the Trustee until six years after the final retirement of the
Certificates.
(e) Payments by the Town. The Town has agreed in Section 6.02 of the
Lease that, if, for any reason, the amount on deposit in the Rebate Fund is less than the
amount required to be paid to the United States of America on any date, the Town will
pay to the Trustee the amount required to make such payment on such date.
Section 3.05. Nonpresentment of Certificates. In the event any Certificate shall not be
presented for payment when due, if funds sufficient to pay such Certificate shall have been made
available to the Trustee for the benefit of the Owner thereof, it shall be the duty of the Trustee to
hold such funds for the period of five years without liability for interest thereon, for the benefit
of the Owner of such Certificate, who shall be restricted exclusively to such funds for any claim
of whatever nature on his part under this Indenture or on or with respect to such Certificate.
Funds so deposited with the Trustee which remain unclaimed five years after the date
payment thereof becomes due, whether at maturity or upon redemption, shall, if, to the
knowledge of the Trustee, there has been no Event of Nonappropriation or Event of Default, be
paid to the Town, and the registered Owners of the Certificates for which the deposit was made
shall thereafter be limited to a claim against the Town.
Section 3.06. Reports to Town. Not less than once each calendar year, the Trustee shall
provide the Town with an accounting for all receipts to and disbursements from the Funds or
Accounts created hereunder.
Section 3.07. Moneys to be Held in Trust. The Certificate Fund, the Acquisition Fund,
and, except for the Rebate Fund, any other fund or account created hereunder shall be held by the
Trustee, for the benefit of the Owners as specified in the Indenture, subject to the terms of this
Indenture, the Lease and the Site Lease. The Rebate Fund shall be held by the Trustee for the
purpose of making payments to the United States of America pursuant to Section 3.04(c) hereof.
Any escrow account established pursuant to Section 9.01 hereof shall be held for the benefit of
the Owners of the Certificates to be paid therefrom as provided in the applicable escrow
agreement.
Section 3.08. Repayment to the Town from the Trustee. After payment in full of the
principal of, premium, if any, and interest on the Certificates, all rebate payments due to the
United States of America, the fees and expenses of the Trustee and all other amounts required to
be paid hereunder, any remaining amounts held by the Trustee pursuant hereto shall be paid to
the Town.
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ARTICLE IV
REDEMPTION OF CERTIFICATES
Section 4.01. Redemption Dates and Prices. The Certificates are subject to
redemption as set forth below:
(a) The Certificates shall be callable for redemption prior to maturity, at the
option of the Town, in whole or in part, and if in part by lot in such manner as the Trustee
shall determine, on December 1, 2020 and on any date thereafter, at the redemption price
(expressed as a percentage of principal amount) of 100%, plus accrued interest to the
redemption date.
(b) The Certificates shall be called for redemption, in whole, at a redemption
price (expressed as a percentage of principal amount) of 100%, plus accrued interest to
the redemption date, on any Interest Payment Date in the event of the exercise by the
Town of its option to purchase the Leased Property, as provided in the Lease, upon
payment of the then-applicable Purchase Option Price from moneys of the Town not
borrowed by the Town or derived from any installment purchase or lease purchase
financing by the Town.
(c) The Certificates shall also be called for redemption as set forth in
Section 4.02 of this Indenture.
Section 4.02. Redemption Upon Termination of the Lease Term by Reason of
Certain Events. The Certificates are callable for redemption, in whole, at any time upon the
occurrence of an Event of Nonappropriation or an Event of Default, upon the direction of a
majority in aggregate principal amount of the Owners of the Certificates then Outstanding. If the
Certificates are to be redeemed by reason of any such event, the Owners shall have no right to
payment from the Town or the Trustee, in redemption of their Certificates or otherwise, except
as expressly set forth in this Section 4.02.
Upon the occurrence of an Event of Nonappropriation or an Event of Default, the Trustee
shall immediately give notice of such occurrence to the Owners and shall exercise all available
remedies, subject to the provisions of Article VII of this Indenture, to obtain payment of the
Certificates.
If the Lease is terminated by reason of the occurrence of an Event of Nonappropriation or
an Event of Default, the Trustee shall immediately notify the Owners of the Certificates of such
termination and whether moneys available under this Indenture are sufficient to provide for the
payment in full of all Outstanding Certificates and the interest thereon when due. If moneys on
hand, including any Net Proceeds and other moneys then available under the Indenture, are
insufficient to provide for the payment in full of all Outstanding Certificates and the interest
thereon when due, the Trustee shall notify the registered owners of the Certificates of the
availability of redemption under this Section 4.02 and, upon direction of the Owners of a
majority in aggregate principal amount of the Certificates then Outstanding, and upon
indemnification as to costs and expenses as provided in this Indenture, shall, without any further
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demand or notice, exercise all or any combination of Lease Remedies as provided in the Lease,
and the Outstanding Certificates shall be redeemed by the Trustee from the Net Proceeds
resulting from the exercise of such Lease Remedies and all other moneys, if any, then on hand
and being held by the Trustee for the Owners of the Outstanding Certificates. If the Net
Proceeds resulting from the exercise of such Lease Remedies and other moneys, including
moneys then available under the Indenture, shall be insufficient to redeem the Outstanding
Certificates at a redemption price (expressed as a percentage of principal amount) of 100% plus
interest accrued to the redemption date, then, on the redemption date, such Net Proceeds
resulting from the exercise of such Lease Remedies and other moneys, including moneys then
available under the Indenture, shall be allocated proportionately among the Certificates,
according to the principal amount thereof Outstanding. In the event that such Net Proceeds
resulting from the exercise of such Lease Remedies and other moneys are in excess of the
amount required to redeem the Outstanding Certificates at a redemption price (expressed as a
percentage of principal amount) of 100% plus interest accrued to the redemption date, then such
excess moneys shall be paid to the Town. Prior to any distribution of the Net Proceeds resulting
from the exercise of any of such remedies in redemption of the Certificates pursuant to this
Section 4.02, the Trustee shall be entitled to payment of its reasonable and customary fees for all
services rendered in connection with such disposition, as well as reimbursement for all
reasonable costs and expenses, including attorneys’ fees, incurred thereby, from proceeds
resulting from the exercise of such Lease Remedies and other moneys. If the Outstanding
Certificates are to be redeemed for an amount less than the aggregate principal amount thereof
plus interest accrued to the redemption date, such partial payment shall be deemed to constitute a
redemption in full of the Outstanding Certificates, and upon such a partial payment no Owner of
such Outstanding Certificates shall have any further claim for payment against the Trustee or the
Town.
Section 4.03. Mandatory Sinking Fund Redemption. The Certificates are subject to
mandatory sinking fund redemption, prior to maturity, in part, by lot in such manner as the
Trustee shall determine, at a price (expressed as a percentage of principal amount) of 100%, plus
accrued interest to the date of redemption, on the following dates and in the following amounts:
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Sinking Fund
Redemption Date
(December 1) Principal Amount
2014 $370,000
2015 380,000
2016 390,000
2017 395,000
2018 405,000
2019 415,000
2020 425,000
2021 435,000
2022 450,000
2023 460,000
2024 470,000
2025 480,000
2026 495,000
2027 * 505,000
____________________
* Final Maturity
On or before the 45th day prior to each such mandatory sinking fund redemption date, the
Trustee shall proceed to select the Certificates for redemption from such sinking fund on the next
December 1, and thereafter give notice of such call. At its option, to be exercised on or before
the 60th day next preceding any such mandatory sinking fund redemption date, the Town may
(A) deliver to the Trustee for cancellation Certificates in any aggregate principal amount desired,
that are subject to mandatory sinking fund redemption on the next mandatory sinking fund
redemption date, and (B) receive a credit in respect of its mandatory sinking fund redemption
obligation for any such Certificates so delivered and which, prior to said delivery, have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled by the
Trustee and not theretofore applied as a credit against any mandatory sinking fund redemption
obligation. Each Certificate, so delivered shall be credited by the Trustee at the principal amount
thereof on the obligation of the Town on the next occurring mandatory sinking fund redemption
date, and, to the extent of any excess, to the next annual mandatory sinking fund redemption date
or dates, and the principal amount of Certificates to be redeemed by operation of such sinking
fund on such date or dates shall be accordingly reduced.
In the event that the Certificates are called for optional redemption in part, the principal
amount so redeemed shall be immediately credited against the obligation to call the Certificates
for mandatory sinking fund redemption in the same proportion (rounding to the nearest $5,000)
as the principal amount of Certificates that are required to be called for mandatory sinking fund
redemption on each mandatory sinking fund redemption date bears to the principal amount of
Certificates that are Outstanding prior to such optional redemption.
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Section 4.04. Notice of Redemption.
(a) Notice of the call for any redemption, identifying the Certificates or
portions thereof to be redeemed and specifying the terms of such redemption, shall be
given by the Trustee, upon being satisfactory indemnified as to expenses, by mailing a
copy of the redemption notice by United States registered or certified mail, at least 30
days and not more than 60 days prior to the date fixed for redemption, to the Owner of
each Certificate to be redeemed at the address shown on the registration books; provided,
however, that failure to give such notice by mailing, or any defect therein, shall not affect
the validity of any proceedings of any Certificates as to which no such failure has
occurred.
(b) Any notice mailed as provided in this Section shall be conclusively
presumed to have been duly given, whether or not the Owner receives the notice.
(c) If at the time of mailing of notice of redemption there shall not have been
deposited with the Trustee moneys sufficient to redeem all the Certificates called for
redemption, which moneys are or will be available for redemption of such Certificates,
such notice will state that it is conditional upon the deposit of the redemption moneys
with the Trustee not later than the opening of business on the redemption date, and such
notice shall be of no effect unless such moneys are so deposited.
Section 4.05. Redemption Payments.
(a) On or prior to the date fixed for redemption, the Trustee shall apply funds
to the payment of the Certificates called for redemption, together with accrued interest
thereon to the redemption date, and any required premium. Upon the giving of notice
and the deposit of such funds as may be available for redemption pursuant to this
Indenture (which, in the case of redemption pursuant to Section 4.02 hereof, may be less
than the full principal amount of the Outstanding Certificates and accrued interest thereon
to the redemption date), interest on the Certificates or portions thereof thus called for
redemption shall no longer accrue after the date fixed for redemption.
(b) The Trustee shall pay to the Owners of Certificates so redeemed, the
amounts due on their respective Certificates, at the Operations Center of the Trustee upon
presentation and surrender of the Certificates.
Section 4.06. Cancellation. All Certificates which have been redeemed shall not be
reissued but shall be canceled by the Trustee in accordance with Section 2.09 hereof.
Section 4.07. Delivery of New Certificates Upon Partial Redemption of Certificates.
Upon surrender and cancellation of a Certificate for redemption in part only, a new Certificate or
Certificates of the same maturity and of authorized denomination in an aggregate principal
amount equal to the unredeemed portion thereof, shall be executed on behalf of and delivered by
the Trustee. The expenses of such execution, delivery and exchange shall be paid by the Town
as Additional Rentals under the Lease.
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ARTICLE V
INVESTMENTS
Section 5.01. Investment of Moneys. All moneys held as part of the Certificate Fund,
the Acquisition Fund or any other Fund, Account or Subaccount created hereunder shall, subject
to Sections 5.02 and 6.04 hereof, be deposited or invested and reinvested by the Trustee, at the
written direction of the Town, in Permitted Investments; provided, however, that the Trustee
shall make no deposits or investments of any moneys in any Fund or Account created hereunder
which shall interfere with or prevent withdrawals for payment of Costs of the Project or for
payment of the Certificates. All investments and reinvestment of any amounts pursuant to this
Indenture or the Lease shall be made in accordance with the provisions of this Indenture; and all
investments and reinvestment of any amounts deemed to be, for purposes of the Code, proceeds
of the Certificates, shall be in accordance with the requirements of the Tax Compliance
Certificate executed by the Town in connection with the execution and delivery of such
Certificates, unless the Trustee shall receive an opinion of Bond Counsel to the effect that an
alternate investment or reinvestment shall not adversely affect the excludability from federal
income taxation of interest on the Certificates, in which case such investment or reinvestment
may be made in accordance with such opinion. Any and all such deposits or investments shall be
held by or under the control of the Trustee. If the Trustee is not provided written direction
concerning investment of moneys held by it, the Trustee may invest such moneys in a money
market mutual fund available to the Trustee, provided such investment matures or is subject to
redemption prior to the date such moneys will be needed.
The Trustee may make any and all such deposits or investments through its own
investment department or the investment department of any Trustee or trust company under
common control with the Trustee. Income from deposits or investments of moneys held in the
Rebate Fund shall be deposited as provided in Section 3.04 hereof and income from deposits or
investments of moneys held in any escrow account established pursuant to Article IX hereof
shall be deposited as provided in the escrow agreement governing such escrow account.
Otherwise, except as otherwise provided by Article III hereof, deposits or investments shall at all
times be a part of the Fund, Account or Subaccount from which the moneys used to acquire such
deposits or investments shall have come, and all income and profits on such deposits or
investments shall be credited to, and losses thereon shall be charged against, such Fund, Account
or Subaccount. The Trustee shall sell and reduce to cash a sufficient amount of such deposits or
investments in the respective funds whenever the cash balance in any Fund or Account created
hereunder is insufficient to satisfy the purposes of such Fund or Account. In computing the
amount in any Fund or Account created hereunder for any purpose hereunder, investments shall
be marked to market on a semiannual basis no fewer than 15 days prior to each Interest Payment
Date at the fair market value thereof, exclusive of accrued interest. Where market prices for
obligations held hereunder are not readily available, the market price for such obligations may be
determined in such manner as the Trustee deems reasonable.
Section 5.02. Tax Certification. The Trustee certifies and covenants to and for the
benefit of the Owners that so long as any of the Certificates remain Outstanding, moneys in any
Fund or Account held by the Trustee under this Indenture, whether or not such moneys were
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derived from the proceeds of the sale of the Certificates or from any other source, will not be
knowingly deposited or invested in a manner which will a violation of Section 6.04 hereof.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.01. Representations, Covenants and Warranties Regarding Execution,
Delivery and Performance of Indenture. The Trustee represents, covenants and warrants that:
(a) the Trustee (i) is a national banking association that is duly organized,
validly existing and in good standing under the laws of the United States of America and
authorized to exercise trust powers of the character herein set forth, (ii) is duly qualified
to do business in the State, (iii) is the lessee of the Leased Property pursuant to the Site
Lease and (iv) is authorized, under its articles of association, action of its board of
directors and applicable law, to lease the Leased Property from the Town, to sublease the
Leased Property to the Town, to place in trust the Trust Estate and to execute, deliver and
perform its obligations under this Indenture;
(b) the Trustee, as sublessor, and the Town, as sublessee, have entered into the
Lease pursuant to which the Trustee has subleased the Leased Property to the Town and
the Town has agreed to pay Base Rentals and Additional Rentals, subject, in each case, to
the terms of the Lease;
(c) the Trustee may in the future enter into other leases or agreements similar
or dissimilar to the Lease under which the Trustee will be entitled to receive revenues;
(d) in order to pay the Costs of the Project the Trustee will execute and deliver
the Certificates pursuant to this Indenture;
(e) the Certificates shall evidence undivided interests in the right to receive
Revenues, shall be payable solely from the Trust Estate and no provision of the
Certificates, this Indenture, the Lease or the Site Lease shall be construed or interpreted
(i) to directly or indirectly obligate the Town to make any payment in any Fiscal Year in
excess of amounts appropriated for such Fiscal Year; (ii) as creating a debt or multiple
fiscal year direct or indirect debt or other financial obligation whatsoever of the Town
within the meaning of Article XI, Section 6 or Article X, Section 20 of the Colorado
Constitution or any other constitutional or statutory limitation or provision; (iii) as a
delegation of governmental powers by the Town; (iv) as a loan or pledge of the credit or
faith of the Town or as creating any responsibility by the Town for any debt or liability of
any person, company or corporation within the meaning of Article XI, Section 1 of the
Colorado Constitution; or (v) as a donation or grant by the Town to, or in aid of, any
person, company or corporation within the meaning of Article XI, Section 2 of the
Colorado Constitution.;
(f) the execution and performance of this Indenture by the Trustee has been
duly authorized by the Trustee and, upon the execution of this Indenture by the Trustee,
this Indenture will be enforceable against the Trustee in accordance with its terms,
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limited only by bankruptcy, insolvency, reorganization, moratorium and other similar
laws affecting creditors’ rights generally, by equitable principles, whether considered at
law or in equity, by the exercise by the State and its governmental bodies of the police
power inherent in the sovereignty of the State and by the exercise by the United States of
America of the powers delegated to it by the Constitution of the United States of
America;
(g) the Trustee has entered into this Indenture for and on behalf of the Owners
and will, except as otherwise specifically provided herein, hold its rights hereunder,
including its rights with respect to the Trust Estate, for the equal and proportionate
benefit of the Owners, and will disburse moneys received by it in accordance with this
Indenture; and
(h) all things necessary to make the Certificates, when executed and delivered
by the Trustee as in this Indenture provided, legal, valid and binding obligations of the
Trustee enforceable against the Trustee in accordance with terms thereof, and to
constitute this Indenture a legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with their terms, have been done and performed.
Section 6.02. Duties of the Trustee. The Trustee hereby accepts the trusts imposed
upon it by this Indenture and agrees to perform said trusts, but only upon and subject to the
following express terms and conditions, and no implied covenants or obligations shall be read
into this Indenture against the Trustee:
(a) The Trustee, prior to the occurrence of an Event of Default or Event of
Nonappropriation and after the curing of all Events of Default which may have occurred,
undertakes to perform such duties and only such duties as are specifically assigned to it in
the Lease and this Indenture. In case an Event of Default or Event of Nonappropriation
has occurred (which has not been cured or waived), the Trustee shall exercise such of the
rights and powers vested in it by the Lease and this Indenture, and use the same degree of
care and skill in their exercise as a reasonable and prudent person would exercise or use
under the circumstances in the conduct of the affairs of another.
(b) The Trustee may execute any of the trusts or powers hereof and perform
any of its duties by or through attorneys, agents, receivers or employees but shall be
answerable for the conduct of the same in accordance with the standard specified above,
and shall be entitled to act upon an Opinion of Counsel concerning all matters of trust
hereof and the duties hereunder, and may in all cases pay such reasonable compensation
to all such attorneys, agents, receivers and employees as may reasonably be employed in
connection with the trusts hereof. The Trustee may act upon an Opinion of Counsel and
shall not be responsible for any loss or damage resulting from any action or nonaction
taken by or omitted to be taken in good faith in reliance upon such Opinion of Counsel.
(c) The Trustee shall not be responsible for any recital herein or in the
Certificates (except in respect of the execution of the Certificates by the Trustee), for the
sufficiency of the security for the Certificates issued hereunder or intended to be secured
hereby, or for the value of or title to the Leased Property.
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(d) The Trustee shall not be accountable for the use of any Certificates
delivered to the Initial Purchaser hereunder. The Trustee may become the Owner of
Certificates with the same rights which it would have if not Trustee.
(e) The Trustee shall be protected in acting upon any notice, request, consent,
certificate, order, affidavit, letter, telegram or other paper or document reasonably
believed by it to be genuine and correct and to have been signed or sent by the proper
person or persons. Any action taken by the Trustee pursuant to this Indenture upon the
request or authority or consent of any person who at the time of making such request or
giving such authority or consent is the Owner of any Certificate shall be conclusive and
binding upon any Certificates issued in place thereof.
(f) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be answerable for
other than its negligence or willful misconduct.
(g) The Trustee shall not be required to take notice or be deemed to have
notice of any Event of Default or Event of Nonappropriation except failure by the Town
to cause to be made any of the payments to the Trustee required to be made thereunder,
unless (i) an officer in the Trustee’s trust department has actual knowledge of such Event
of Default or Event of Nonappropriation or (ii) the Trustee has been notified in writing of
such Event of Default or Event of Nonappropriation by the Town or by the Owners of at
least 10% in aggregate principal amount of Certificates then Outstanding.
(h) All moneys received by the Trustee shall, until used or applied or invested
as herein provided, be held in trust in the manner and for the purposes for which they
were received but need not be segregated from other funds except to the extent required
by this Indenture or law.
(i) The Trustee shall not be required to give any bond or surety in respect of
the execution of the said trusts and powers or otherwise in respect of the premises.
(j) Notwithstanding anything in this Indenture to the contrary, the Trustee
shall have the right, but shall not be required, to demand in respect of the delivery of any
Certificates, the withdrawal of any cash, or any action whatsoever within the purview of
this Indenture, any showings, certificates, opinions, appraisals or other information, or
corporate action or evidence thereof, in addition to that by the terms hereof required, as a
condition of such action by the Trustee.
(k) The Trustee shall be entitled to indemnification from available amounts in
the Trust Estate or from the Owners for its costs and expenses prior to taking any action
following the occurrence of an Event of Default or Event of Nonappropriation, which
indemnification shall be funded prior to the payment of principal of and interest on the
Certificates.
(l) The Trustee shall not be required to advance any of its own funds in the
performance of its obligations hereunder unless it has received assurances satisfactory to
it that it will be repaid.
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Section 6.03. Maintenance of Existence; Performance of Obligations.
(a) The Trustee shall at all times maintain its existence and will use its best
efforts to maintain, preserve and renew all the rights and powers provided to it under its
articles of association and bylaws, action of its board of directors and applicable law;
provided, however, that this covenant shall not prevent the assumption, by operation of
law or otherwise, by any Person of the rights and obligations of the Trustee hereunder,
but only if and to the extent such assumption does not materially impair the rights of the
Owners of any Outstanding Certificates or the Town.
(b) The Trustee shall do and perform or cause to be done and performed all
acts and things required to be done or performed in its capacity as Trustee under the
provisions of this Indenture, the Lease, any other instrument or other arrangement to
which it is a party that benefits the Owners of any Outstanding Certificates and that
complies with any Requirement of Law.
Section 6.04. Tax Covenant. The Trustee shall not take any action or omit to take any
action with respect to the Certificates, the proceeds of the Certificates, the Trust Estate or any
other funds or property and it will not permit any other Person to take any action or omit to take
any action with respect thereto if such action or omission would cause interest on any of the
Certificates to be included in gross income for federal income tax purposes or to be an item of
tax preference for purposes of the federal alternative minimum tax imposed on individuals and
corporations (except, with respect to corporations, as such interest is required to be taken into
account in determining “adjusted net book earnings” for the purpose of computing the alternative
minimum tax imposed on such corporations). In furtherance of this covenant, the Trustee agrees
to comply with the procedures set forth in the Tax Compliance Certificate delivered by the Town
in connection with the issuance of the Certificates and the provisions of any similar certificate or
instrument delivered by the Town in connection with the execution and delivery of any
Additional Certificates. The covenants set forth in this Section shall remain in full force and
effect notwithstanding the payment in full or defeasance of the Certificates until the date on
which all obligations of the Trustee in fulfilling such covenants have been met. The covenants
set forth in this Section shall not, however, apply to any series of Certificates if, at the time of
execution and delivery, the interest on such series of Certificates is intended to be subject to
federal income tax.
Section 6.05. Sale or Encumbrance of Leased Property. As long as there are any
Outstanding Certificates, and except as otherwise permitted by this Indenture and except as the
Lease otherwise specifically requires, the Trustee shall not sell or otherwise dispose of any of the
Leased Property unless it determines that such sale or other disposal will not materially adversely
affect the rights of the Owners of the Certificate.
Section 6.06. Rights of Trustee under Lease and Site Lease. The Trustee hereby
covenants for the benefit of the Owners that the Trustee will observe and comply with its
obligations under the Lease, including but not limited to the provisions of Article IX of the Lease
regarding the conveyance of the Leased Property, and that all the representations made by the
Trustee in the Lease and the Site Lease are true. Wherever in the Lease or the Site Lease it is
stated that the Trustee shall be notified or wherever the Lease or the Site Lease gives the Trustee
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some right or privilege, such part of the Lease or the Site Lease shall be as if it were set forth in
full in this Indenture.
Section 6.07. Defense of Trust Estate. The Trustee shall at all times, to the extent
permitted by law, defend, preserve and protect its interest in the Leased Property and the other
property or property rights included in the Trust Estate and all the rights of the Owners under this
Indenture against all claims and demands of all Persons whomsoever.
Section 6.08. Compensation of Trustee. During the Lease Term, the Trustee shall be
entitled to compensation in accordance with Section 10.06 of the Lease. In no event shall the
Trustee be obligated to advance its own funds in order to take any action in its capacity as
Trustee hereunder. The rights of the Trustee to payments pursuant to this Section shall be
superior to the rights of the Owners with respect to the Trust Estate.
Section 6.09. Resignation or Replacement of Trustee.
(a) The present or any future Trustee may resign by giving written notice to
the Owners of a majority in principal amount of the Certificates and the Town not less
than 60 days before such resignation is to take effect. Such resignation shall take effect
only upon the appointment of a successor qualified as provided in subsection (d) of this
Section; provided, however, that if no successor is appointed within 60 days following
the date designated in the notice for the Trustee’s resignation to take effect, the resigning
Trustee may petition a court of competent jurisdiction for the appointment of a successor.
(b) The present or any future Trustee may be removed at any time (i) by the
Owners of a majority in aggregate principal amount of the Certificates Outstanding for
any reason upon delivery to the Trustee of an instrument or concurrent instruments
signed by such Owners or their attorneys in fact duly appointed; (ii) by the Town for any
reason upon delivery to the Trustee of an instrument signed by an Authorized Officer of
the Town and accompanied by a resolution of the Board seeking such removal, provided
that the Town shall not be entitled to remove the Trustee pursuant to this clause if an
Event of Default has occurred or is continuing or if any Event of Nonappropriation has
occurred; or (iii) by any Owner, upon delivery to the Trustee of an instrument signed by
such Owner or his or her attorney in fact duly appointed following a determination by a
court of competent jurisdiction that the Trustee is not duly performing its obligations
hereunder or that such removal is in the best interests of the Owners.
(c) In case the present or any future Trustee shall at any time resign or be
removed or otherwise become incapable of acting, a successor may be appointed by the
Owners of a majority in aggregate principal amount of the Certificates Outstanding by an
instrument or concurrent instruments signed by such Owners, or their attorneys in fact
duly appointed; provided that the Town, by an instrument signed by an Authorized
Officer of the Town, may appoint a successor until a new successor shall be appointed by
the Owners as herein authorized. The Town, upon making such appointment, shall
forthwith give notice thereof to each Owner, which notice may be given concurrently
with the notice of resignation given by any resigning Trustee. Any successor so
appointed by the Town shall immediately and without further act be superseded by a
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successor appointed in the manner above provided by the Owners of a majority in
aggregate principal amount of the Certificates Outstanding.
(d) Every successor shall be a commercial bank with trust powers in good
standing, located in or incorporated under the laws of the State, duly authorized to
exercise trust powers and subject to examination by federal or state authority, qualified to
act hereunder, having a capital and surplus of not less than $50,000,000. Any successor
trustee shall execute, acknowledge and deliver to the present or then trustee an instrument
accepting appointment as successor trustee hereunder and as successor to the then current
trustee in its capacity as lessee under the Site Lease and sublessor under the Lease, and
thereupon such successor shall, without any further act, deed or conveyance, (i) become
vested with all the previous rights, title and interest in and to, and shall become
responsible for the previous obligations with respect to, the Leased Property and the Trust
Estate and (ii) become vested with the previous rights, title and interest in, to and under,
and shall become responsible for the trustee’s obligations under this Indenture, the Lease
and the Site Lease, with like effect as if originally named as Trustee herein and therein.
The previous trustee shall execute and deliver to the successor trustee (A) such transfer
documents as are necessary to transfer the Trustee’s interest in the Leased Property to the
successor trustee, (B) an instrument in which the previous trustee resigns as trustee
hereunder, as lessee under the Site Lease and as sublessor under the Lease and (C) at the
request of the successor trustee, one or more instruments conveying and transferring to
such successor, upon the trusts herein expressed, all the estates, properties, rights, powers
and trusts of the previous trustee in the Leased Property, the Trust Estate, this Indenture,
the Lease and the Site Lease in a manner sufficient, in the reasonable judgment of the
successor trustee, to duly assign, transfer and deliver to the successor all properties and
moneys held by the previous trustee in accordance with the laws of the State. Should any
other instrument in writing from the previous trustee be required by any successor for
more fully and certainly vesting in and confirming to it the rights, title and interest to be
transferred pursuant to this Section, the previous trustee shall, at the reasonable discretion
and at the request of the successor trustee, make, execute, acknowledge and deliver the
same to or at the direction of the successor trustee.
(e) The instruments evidencing the resignation or removal of the Trustee and
the appointment of a successor hereunder, together with all other instruments provided
for in this Section shall be filed and/or recorded by the successor trustee in each
recording office, if any, where this Indenture, the Lease and the Site Lease shall have
been filed and/or recorded.
Section 6.10. Conversion, Consolidation or Merger of Trustee. Any commercial
bank with trust powers into which the Trustee or its successor may be converted or merged, or
with which it may be consolidated, or to which it may sell or transfer its corporate trust business
as a whole shall be the successor of the Trustee under this Indenture with the same rights,
powers, duties and obligations and subject to the same restrictions, limitations and liabilities as
its predecessor, all without the execution or filing of any papers or any further act on the part of
any of the parties hereto or thereto, anything herein or therein to the contrary notwithstanding. In
case any of the Certificates to be executed and delivered hereunder shall have been executed, but
not delivered, any successor Trustee may adopt the signature of any predecessor Trustee, and
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deliver the same as executed; and, in case any of such Certificates shall not have been executed,
any successor Trustee may execute such Certificates in the name of such successor Trustee.
Section 6.11. Intervention by Trustee. In any judicial proceeding to which the Town is
a party and which in the opinion of the Trustee and its counsel has a substantial bearing on the
interests of the Owners, the Trustee may intervene on behalf of Owners and shall do so if
requested in writing by the Owners of at least 10% in aggregate principal amount of Certificates
Outstanding.
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01. Remedies of Trustee Upon the Occurrence of an Event of Default or
Event of Nonappropriation. Upon the occurrence of an Event of Default or Event of
Nonappropriation:
(a) the Trustee shall be entitled to apply any moneys in any of the Funds or
Accounts created hereunder (except the Rebate Fund and any escrow accounts
established pursuant to Article IX hereof) to the payment of the principal of, premium, if
any, and interest on the Certificates when due;
(b) the Trustee may, and at the request of the Owners of a majority in
aggregate principal amount of the Certificates then Outstanding shall, without any further
demand or notice, exercise any of the remedies available to it under the Lease; and
(c) take any other action at law or in equity that may appear necessary or
desirable to enforce the rights of such Owners.
Section 7.02. Remedies of Trustee Upon Event of Default by the Town under the
Site Lease. Upon an event of default by the Town under the Site Lease, the Trustee may, and at
the request of the Owners of a majority in aggregate principal amount of the Certificates then
Outstanding shall, without further demand or notice, take any action at law or in equity that may
appear necessary or desirable to enforce the rights of the Trustee and the Owners.
Section 7.03. Failure to Perform by Trustee. Any of the following shall constitute a
Failure to Perform:
(a) default in the payment of the principal of, premium, if any, and interest on
any Certificate when due to the extent such failure is not directly caused by an Event of
Default or an Event of Nonappropriation;
(b) failure of the Trustee to enforce and diligently pursue any remedy
available under Section 7.01 or 7.02 hereof; and
(c) failure by the Trustee to comply with any other provision of this Indenture
within 30 days after receiving notice of noncompliance.
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Section 7.04. Remedies of Owners Upon a Failure to Perform. Subject to the other
provisions of this Article, upon the occurrence of any Failure to Perform, the Owner of any
Certificate may:
(a) commence proceedings in any court of competent jurisdiction to enforce
the provisions of this Indenture against the Trustee;
(b) subject to Section 6.10 hereof, cause the Trustee to be removed and
replaced by a successor trustee; and
(c) take any other action at law or in equity that may appear necessary or
desirable to enforce the rights of such Owner.
Section 7.05. Limitations Upon Rights and Remedies of Owners. No Owner shall
have any right to institute any suit, action or proceeding in equity or at law for the enforcement
of the Lease or the Site Lease, unless an Event of Default or Event of Nonappropriation, event of
default by the Town under the Site Lease has occurred of which the Trustee has been notified as
provided in Section 6.02(g) hereof, or of which by Section 6.02(g) hereof it is deemed to have
notice, and the Owners of not less than a majority in aggregate principal amount of Certificates
then Outstanding shall have made written request to the Trustee and shall have offered
reasonable opportunity either to proceed to exercise the powers hereinbefore granted or to
institute such action, suit or proceedings in its own name, such Owners shall have offered to the
Trustee indemnity as provided in Section 6.02(k) hereof, and the Trustee shall thereafter fail or
refuse to exercise the powers hereinbefore granted, or to institute such action, suit or proceeding
in its own name. No one or more Owners shall have any right in any manner whatsoever to
affect, disturb or prejudice the lien of this Indenture by any action or to enforce any right
hereunder except in the manner herein provided and all proceedings at law or in equity shall be
instituted, had and maintained in the manner herein provided and for the equal benefit of the
Owners of all Certificates then Outstanding. Except as provided in Section 4.02 hereof, nothing
contained in this Indenture shall, however, affect or impair the right of any Owner to enforce the
payment of the principal of, premium, if any, and interest on any Certificate at and after the
maturity thereof.
Section 7.06. Majority of Owners May Control Proceedings. Anything in this
Indenture to the contrary notwithstanding, the Owners of a majority in aggregate principal
amount of the Certificates then Outstanding shall have the right, at any time, to the extent
permitted by law, by an instrument or instruments in writing executed and delivered to the
Trustee, to direct the time, method and place of conducting all proceedings to be taken in
connection with the enforcement of the terms and conditions of the Lease, the Site Lease or this
Indenture, or for the appointment of a receiver, and any other proceedings hereunder; provided
that such direction shall not be otherwise than in accordance with the provisions hereof.
Section 7.07. Trustee to File Proofs of Claim in Receivership, Etc. In the case of any
receivership, insolvency, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceedings affecting the Town or the Leased Property, the Trustee shall, to the
extent permitted by law, be entitled to file such proofs of claim and other documents as may be
necessary or advisable in order to have claims of the Trustee and of the Owners allowed in such
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proceedings for the entire amount due and payable on the Certificates under this Indenture, at the
date of the institution of such proceedings and for any additional amounts which may become
due and payable by it after such date, without prejudice, however, to the right of any Owner to
file a claim in its own behalf.
Section 7.08. Trustee May Enforce Remedies Without Certificates. The Trustee may
enforce its rights and remedies under the Lease, the Site Lease and this Indenture without the
possession of any of the Certificates or the production thereof in any trial or proceedings relative
thereto; and any suit or proceeding instituted by the Trustee shall be brought in its name as
Trustee, without the necessity of joining as plaintiffs or defendants any Owners of the
Certificates, and any recovery of judgment shall be for the ratable benefit of the Owners, subject
to the provisions hereof.
Section 7.09. No Remedy Exclusive. No right or remedy available under this Article or
otherwise is intended to be exclusive of any other right or remedy, but each and every such right
or remedy shall be cumulative and in addition to any other remedy given hereunder or now or
hereafter existing at law or in equity or by statute.
Section 7.10. Waivers. The Trustee may in its discretion waive any Event of Default,
Event of Nonappropriation or event of default by the Town under the Site Lease and its
consequences, and notwithstanding anything else to the contrary contained in this Indenture shall
do so upon the written request of the Owners of a majority in aggregate principal amount of all
the Certificates then Outstanding; provided, however, that an Event of Nonappropriation shall
not be waived without the consent of the Owners of 100% of the Certificates then Outstanding as
to which the Event of Nonappropriation exists, unless prior to such waiver or rescission, all
arrears of interest and all arrears of payments of principal and premium, if any, then due, as the
case may be (including interest on all overdue installments at the highest rate due on the
Certificates), and all expenses of the Trustee in connection with such Event of Nonappropriation
shall have been paid or provided for. In case of any such waiver, or in case any proceedings
taken by the Trustee on account of any such Event of Default, Event of Nonappropriation or
event of default by the Town under the Site Lease shall have been discontinued or abandoned or
determined adversely to the Trustee, then and in every such case the Trustee, the Owners and the
Town shall be restored to their former positions and rights hereunder respectively, but no such
waiver or rescission shall extend to any subsequent or other Event of Default, Event of
Nonappropriation or event of default by the Town under the Site Lease or impair any right
consequent thereon.
Section 7.11. Delay or Omission No Waiver. No delay or omission of the Trustee or of
any Owner to exercise any right or power accruing upon any Event of Default, Event or
Nonappropriation, event of default by the Town under the Site Lease or Failure to Perform shall
exhaust or impair any such right or power or shall be construed to be a waiver of any such Event
of Default, Event of Nonappropriation, event of default by the Town under the Site Lease or
Failure to Perform, or acquiescence therein; and every power and remedy given by this Indenture
may be exercised from time to time and as often as may be deemed expedient.
Section 7.12. No Waiver of Default to Affect Another. No waiver of any Event of
Default, Event of Nonappropriation, event of default by the Town under the Site Lease or Failure
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to Perform by the Trustee or the Owners shall extend to or affect any subsequent or any other
then existing Event of Default, Event of Nonappropriation, event of default by the Town under
the Site Lease or Failure to Perform or shall impair any rights or remedies consequent thereon.
Section 7.13. Position of Parties Restored Upon Discontinuance of Proceedings. In
case the Trustee or the Owners shall have proceeded to enforce any right under the Lease, the
Site Lease or this Indenture and such proceedings shall have been discontinued or abandoned for
any reason, or shall have been determined adversely to the Person or Persons enforcing the same,
then and in every such case the Town, the Trustee and the Owners shall be restored to their
former positions and rights hereunder with respect to the Trust Estate, and all rights, remedies
and powers of the Trustee and the Owners shall continue as if no such proceedings had been
taken.
Section 7.14. Purchase of Leased Property by Owners; Application of Certificates
Toward Purchase Price. Upon the occurrence of an Event of Default or Event of
Nonappropriation and the sale or lease of its interest in the Leased Property by the Trustee
pursuant to the Lease, any Owners may bid for and purchase such interest in or lease the Leased
Property; and, upon compliance with the terms of sale or lease, may hold, retain and possess and
dispose of such property in his, her, its or their own absolute right without further accountability;
and any purchaser or lessee at any such sale may, if permitted by law, after allowing for payment
of the costs and expenses of the sale, compensation and other charges, in paying purchase or rent
money, turn in Certificates then Outstanding in lieu of cash. Upon the happening of any such
sale or lease, the Trustee may take any further lawful action with respect to the Leased Property
which it shall deem to be in the best interest of the Owners, including but not limited to the
enforcement of all rights and remedies set forth in the Lease, the Site Lease and this Indenture
and the taking of all other courses of action permitted herein or therein.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Not Requiring Consent of Owners. The
Trustee may, without the consent of, or notice to, the Owners, execute and deliver a
Supplemental Indenture for any one or more or all of the following purposes:
(a) to add to the covenants and agreements of the Trustee contained in this
Indenture other covenants and agreements to be thereafter observed by the Trustee;
(b) to cure any ambiguity, or to cure, correct or supplement any defect or
omission or inconsistent provision contained in this Indenture, or to make any provisions
with respect to matters arising under this Indenture or for any other purpose if such
provisions are necessary or desirable and do not materially adversely affect the interests
of the Owners;
(c) to subject to this Indenture additional revenues, properties or collateral
(including release and substitution of property permitted under the Lease);
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(d) to set forth the terms and conditions and other matters in connection with
the execution and delivery of Additional Certificates to refund all of the Outstanding
Certificates and Additional Certificates previously executed and delivered, pursuant to
Section 2.10 hereof;
(e) to effect any change in connection with the preservation of the
excludability from gross income for federal income tax purposes interest on the
Certificates; or
(f) to effect any other changes in this Indenture which, in the opinion of Bond
Counsel, do not materially adversely affect the rights of the Owners.
Section 8.02. Supplemental Indentures Requiring Consent of Owners.
(a) Exclusive of Supplemental Indentures under Section 8.01 hereof, the
written consent of the Owners of not less than a majority in aggregate principal amount
of the Certificates Outstanding shall be required for the execution and delivery by the
Trustee of any Supplemental Indenture; provided, however, that without the consent of
the Owners of all the Certificates Outstanding nothing herein contained shall permit, or
be construed as permitting:
(i) a change in the terms of redemption or maturity of the principal
amount of or the interest on any Outstanding Certificate, or a reduction in the
principal amount of or premium payable upon any redemption of any Outstanding
Certificate or the rate of interest thereon, without the consent of the Owner of
such Certificate;
(ii) the deprivation as to the Owner of any Certificate Outstanding of
the lien created by this Indenture (other than as originally permitted hereby);
(iii) a privilege or priority of any Certificate or Certificates over any
other Certificate or Certificates, except as permitted herein; or
(iv) a reduction in the percentage of the aggregate principal amount of
the Certificates required for consent to any Supplemental Indenture.
(b) If at any time the Trustee shall propose to execute and deliver any
Supplemental Indenture for any of the purposes of this Section, the Trustee shall cause
notice of the proposed execution and delivery of such Supplemental Indenture to be
mailed to the Owners of the Certificates at the addresses last shown on the registration
records of the Trustee. Such notice shall briefly set forth the nature of the proposed
Supplemental Indenture and shall state that copies thereof are on file at the Operations
Center of the Trustee for inspection by all Owners. If, within 60 days or such longer
period as shall be prescribed by the Trustee following the mailing of such notice, the
Owners of not less than a majority, or, with respect to the matters specified in paragraphs
(i) through (iv) of subsection (a) of this Section, 100%, in aggregate principal amount of
the Certificates Outstanding at the time of the execution of any such Supplemental
Indenture shall have consented to and approved the execution thereof as herein provided,
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no Owner shall have any right to object to any of the terms and provisions contained
therein, or the operation thereof, or to enjoin or restrain the Trustee from executing the
same or from taking any action pursuant to the provisions thereof.
Section 8.03. Execution of Supplemental Indenture. Any Supplemental Indenture
executed and delivered in accordance with the provisions of this Article shall thereafter form a
part of this Indenture; and all the terms and conditions contained in any such Supplemental
Indenture shall be deemed to be part of this Indenture for any and all purposes. In case of the
execution and delivery of any Supplemental Indenture, express reference may be made thereto in
the text of the Certificates issued thereafter, if any, if deemed necessary or desirable by the
Trustee.
Section 8.04. Amendments, etc. of the Lease or Site Lease Not Requiring Consent of
Owners. The Trustee may, without the consent of or notice to the Owners, amend, change or
modify the Lease or the Site Lease as may be required:
(a) by the provisions of the Lease, the Site Lease or this Indenture;
(b) for the purpose of curing any ambiguity or formal defect or omission in
the Lease or the Site Lease;
(c) in order more precisely to identify the Leased Property or to add additional
or substituted improvements or properties acquired in accordance with the Lease;
(d) in order to provide for the acquisition, construction or installation of
additional property under the Lease;
(e) in connection with the execution and delivery of Additional Certificates to
refund all of the Outstanding Certificates and Additional Certificates previously executed
and delivered;
(f) in connection with any Supplemental Indenture permitted by this Article;
(g) to effect any change in connection with the preservation of the
excludability from gross income for federal income tax purposes of interest on the
Certificates;
(h) to effect any change that (i) does not reduce the revenues available to the
Trustee from the Lease below the amount required to make all the payments and transfers
required by Article III hereof, (ii) does not reduce the value of the Leased Property and
(iii) does not adversely affect the excludability from gross income for federal income tax
purposes of interest on the Certificates;
(i) to effect any change to the Leased Property permitted by, and in
accordance with the terms of, the Lease; or
(j) to effect any other change in the Lease or the Site Lease which, in the
opinion of Bond Counsel, does not materially adversely affect the rights of the Owners.
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Section 8.05. Amendments, etc., of the Lease or the Site Lease Requiring Consent of
Owners. Except for the amendments, changes or modifications permitted by Section 8.04
hereof, the Trustee shall not consent to any other amendment, change or modification of the
Lease or the Site Lease without notice to and the written approval or consent of the Owners of
not less than a majority in aggregate principal amount of the Certificates Outstanding given and
procured as provided in Section 8.02 hereof. If at any time the Town shall request the consent of
the Trustee to any such proposed amendment, change or modification of the Lease or the Site
Lease, the Trustee shall, upon receipt of amounts necessary to pay expenses, cause notice of such
proposed amendment, change or modification to be given in the same manner as provided in
Section 8.02 hereof. Such notice shall briefly set forth the nature of such proposed amendment,
change or modification and shall state that copies of the instrument embodying the same are on
file at the Operations Center of the Trustee for inspection by all Owners.
ARTICLE IX
DISCHARGE OF INDENTURE.
(a) If, when the Certificates secured hereby shall become due and payable in
accordance with their terms or otherwise as provided in this Indenture, the whole amount
of the principal of, premium, if any, and interest due and payable upon all of the
Certificates shall be paid (or, in the case of redemption of the Certificates pursuant to
Section 4.02 of this Indenture, if full or partial payment of the Certificates and interest
thereon is made), or provision shall have been made for the payment of the same,
together with all rebate payments due to the United States of America, the fees and
expenses of the Trustee and all other amounts payable hereunder shall have been paid in
full, then the right, title and interest of the Trustee in and to the Trust Estate and all
covenants, agreements and other obligations of the Trustee to the Owners shall thereupon
cease, terminate and become void and be discharged and satisfied. In such event, the
Trustee shall transfer and convey to (or to the order of) the Town all property then held in
trust by the Trustee pursuant to this Indenture, and the Trustee shall execute such
documents as may be reasonably required by the Town and shall turn over to (or to the
order of) the Town any surplus in any fund, account or subaccount created under this
Indenture, except the Rebate Fund and any escrow accounts theretofore established
pursuant to this Section.
(b) All of the Outstanding Certificates shall prior to the maturity or
redemption date thereof be deemed to have been paid (“defeased”) within the meaning
and with the effect expressed in subsection (a) of this Section if (i) in case such
Certificates are to be redeemed on any date prior to their maturity, the Town shall have
given to the Trustee in form satisfactory to the Trustee irrevocable instructions to give on
a date in accordance with the provisions of Section 4.04 hereof or the Trustee shall have
given notice of redemption of such Certificates on said redemption date, such notice to be
given on a date and otherwise in accordance with the provisions of Section 4.04 hereof,
and (ii) there shall have been deposited in trust either moneys in an amount which shall
be sufficient, or Defeasance Securities which shall not contain provisions permitting the
redemption thereof at the option of the issuer, the principal of and the interest on which
when due, and without any reinvestment thereof, will provide moneys which, together
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with the moneys, if any, deposited with or held in trust at the same time, shall be
sufficient to pay when due the principal of, premium, if any, and interest due and to
become due on said Certificates on and prior to the redemption date or maturity date
thereof, as the case may be. Neither the Defeasance Securities nor moneys deposited in
trust pursuant to this Section or principal or interest payments on any such Defeasance
Securities shall be withdrawn or used for any purpose other than, and shall be held in
trust for, the payment of the principal of, premium, if any, and interest on said
Certificates; provided any cash received from such principal or interest payments on such
Defeasance Securities deposited in trust, if not then needed for such purpose, shall, to the
extent practicable, be reinvested in Defeasance Securities of the type described in clause
(ii) of this subsection maturing at the times and in amounts sufficient to pay when due the
principal of, premium, if any, and interest to become due on said Certificates on or prior
to such redemption date or maturity date thereof, as the case may be. At such time as any
Certificates shall be deemed paid as aforesaid, such Certificates shall no longer be
secured by or entitled to the benefits of this Indenture, except for the purpose of exchange
and transfer and any payment from such moneys or Defeasance Securities deposited in
trust.
(c) In the event that there is a defeasance of only part of the Certificates of
any maturity, the Trustee may institute a system to preserve the identity of the individual
Certificates or portions thereof so defeased, regardless of changes in Certificate numbers
attributable to transfers and exchanges of Certificates.
ARTICLE X
MISCELLANEOUS
Section 10.01. Further Assurances and Corrective Instruments. So long as this
Indenture is in full force and effect, the Trustee shall have full power to carry out the acts and
agreements provided herein and will from time to time, execute, acknowledge and deliver or
cause to be executed, acknowledged and delivered such supplements hereto and such further
instruments as may reasonably be required for correcting any inadequate or incorrect description
of the Trust Estate, or for otherwise carrying out the intention of or facilitating the performance
of this Indenture.
Section 10.02. Financial Obligations of Trustee Limited to Trust Estate.
Notwithstanding any other provision hereof, all financial obligations of the Trustee under this
Indenture, except those resulting from its negligence or willful misconduct, are limited to the
Trust Estate.
Section 10.03. Evidence of Signature of Owners and Ownership of Certificates.
(a) Any request, consent or other instrument which this Indenture may require
or permit to be signed and executed by the Owners may be in one or more instruments of
similar tenor, and shall be signed or executed by such Owners in person or by their
attorneys appointed in writing, proof of the execution of any such instrument or of an
instrument appointing any such attorney, or the ownership of Certificates shall be
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sufficient (except as otherwise herein expressly provided) if made in the following
manner, but the Trustee may, nevertheless, in its discretion require further or other proof
in cases where it deems the same desirable:
(i) the fact and date of the execution by any Owner or his attorney of
such instrument may be proved by the certificate of any officer authorized to take
acknowledgments in the jurisdiction in which he purports to act that the person
signing such request or other instrument acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution, duly sworn to before a
notary public; and
(ii) the fact of the ownership by any person of Certificates and the
amounts and numbers of such Certificates, and the date of the ownership of the
same, may be proved by the registration records of the Trustee.
(b) Any request or consent of the Owner of any Certificate shall bind all
transferees of such Certificate in respect of anything done or suffered to be done by the
Trustee or the Trustee in accordance therewith.
Section 10.04. Parties Interested Herein. Nothing in this Indenture expressed or
implied is intended or shall be construed to confer upon, or to give to, any person other than the
Trustee, the Owners of the Certificates, and the Town, any right, remedy or claim under or by
reason of this Indenture or any covenant, condition or stipulation hereof; and all the covenants,
stipulations, promises and agreements in this Indenture contained by and on behalf of the Trustee
shall be for the sole and exclusive benefit of the Owners, the Town and their respective
successors and assigns.
Section 10.05. Trustee Representative. Whenever under the provisions hereof the
approval of the Trustee is required or the Trustee is required to take some action at the request of
the Town or the Owners, unless otherwise provided, such approval or such request shall be given
for the Trustee by an Authorized Officer of the Trustee, and the Town and the Owners shall be
authorized to act on any such approval or request.
Section 10.06. Titles, Headings, Etc. The titles and headings of the articles, sections
and subdivisions of this Indenture have been inserted for convenience of reference only and shall
in no way modify or restrict any of the terms or provisions hereof.
Section 10.07. Manner of Giving Notices. All notices, certificates or other
communications hereunder shall be in writing and shall be deemed given when mailed by
certified or registered mail, postage prepaid, addressed as follows: if to the Town, to Town of
Estes Park, 170 MacGregor Avenue, P.O. Box 1200, Estes Park, Colorado 80517, Attention:
Town Administrator; if to the Trustee, to UMB Bank, n.a., 1670 Broadway, Denver, Colorado
80202, Attention: Trust Department. The Town and the Trustee may, by written notice,
designate any further or different addresses to which subsequent notices, certificates or other
communications shall be sent.
Section 10.08. No Individual Liability. All covenants, stipulations, promises,
agreements and obligations of the Trustee, as the case may be, contained herein shall be deemed
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to be the covenants, stipulations, promises, agreements and obligations of the Trustee and not of
any member, director, officer, employee, servant or other agent of the Trustee in his or her
individual capacity, and no recourse shall be had on account of any such covenant, stipulation,
promise, agreement or obligation, or for any claim based thereon or hereunder, against any
member, director, officer, employee, servant or other agent of the Trustee or any natural person
executing this Indenture or any related document or instrument.
Section 10.09. Events Occurring on Days that are not Business Days. If the date for
making any payment or the last day for performance of any act or the exercising of any right
under this Indenture is a day that is not a Business Day, such payment may be made, such act
may be performed or such right may be exercised on the next succeeding Business Day, with the
same force and effect as if done on the nominal date provided in this Indenture.
Section 10.10. Severability. In the event that any provision of this Indenture, other than
the placing of the Trust Estate in trust, shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render unenforceable any other
provision hereof.
Section 10.11. Captions. The captions or headings herein are for convenience only and
in no way define, limit or describe the scope or intent of any provisions or sections of this
Indenture.
Section 10.12. Applicable Law. The laws of the State shall be applied in the
interpretation, execution and enforcement of this Indenture, without regard to conflict of laws
principles.
[Remainder of This Page Left Intentionally Blank]
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IN WITNESS WHEREOF, the Trustee has executed this Indenture as of the date first
above written.
UMB BANK, n.a., as Trustee
By
Authorized Signatory
[Signature Page to Indenture of Trust]
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4818-1560-6803.1
STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this _____ day of May, 2013, by
___________________ as an authorized signatory of UMB Bank, n.a.
WITNESS MY HAND AND OFFICIAL SEAL, the day and year above written.
[SEAL]
Notary Public
My commission expires:
4818-1560-6803.1
APPENDIX A
FORM OF CERTIFICATE
THIS CERTIFICATE IS SUBJECT TO CERTAIN RESTRICTIONS REGARDING
TRANSFER AND ASSIGNMENT AS PROVIDED IN THE HEREINAFTER DEFINED
INDENTURE. A TRANSFEREE IS REQUIRED TO EXECUTE AN INVESTMENT
LETTER, THE FORM OF WHICH MAY BE OBTAINED FROM THE TRUSTEE, AND
TRANSFER OF THIS CERTIFICATE MAY NOT BE MADE UNLESS THE
TRANSFEREE COMPLIES WITH THE PROVISIONS OF THE INDENTURE
REQUIRING SUCH TRANSFEREE TO EXECUTE AN INVESTMENT LETTER
SUBSTANTIALLY IN THE FORM ATTACHED AS APPENDIX C TO THE
INDENTURE.
THE STATED PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY HAVE BEEN
REDUCED PURSUANT TO MANDATORY SINKING FUND REDEMPTIONS AS
PROVIDED IN THE HEREINAFTER DEFINED INDENTURE. CONSEQUENTLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CERTIFICATE AT ANY TIME
MAY BE LESS THAN THE PRINCIPAL AMOUNT SHOWN ON THE FACE HEREOF.
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS CERTIFICATE MAY BE
ASCERTAINED BY CONTACTING THE TRUSTEE.
CERTIFICATE OF PARTICIPATION
SERIES 2013
Evidencing a Proportionate Interest in rights to
receive certain Revenues pursuant to the
Lease Purchase Agreement between
UMB BANK, n.a., as trustee and sublessor, and
the TOWN OF ESTES PARK, COLORADO as sublessee
No. R-___ $__________
Interest Rate Maturity Date Original Issue Date
2.43% December 1, 2027 May __, 2013
REGISTERED OWNER: ________________.
PRINCIPAL AMOUNT: DOLLARS
THIS CERTIFIES THAT the Registered Owner (named above) or registered assigns, has
a proportionate undivided interest in rights to receive certain revenues, as described below,
pursuant to an annually renewable Lease Purchase Agreement dated May __, 2013 (as amended
or supplemented from time to time, the “Lease”) between UMB Bank, n.a. (which Bank,
together with any successors thereto appointed under the Indenture, defined below, is referred to
as the “Trustee”), as sublessor, and the Town of Estes Park, Colorado (the “Town”) as sublessee.
The proportionate interest of the Registered Owner of this Certificate is secured as provided in
A-2
4818-1560-6803.1
the Indenture of Trust dated May __, 2013 (as amended or supplemented from time to time, the
“Indenture”) by the Trustee, pursuant to which certain rights of the Trustee as sublessor under
the Lease and certain rights of the Trustee in the property subleased to the Town pursuant to the
Lease (as described in the Lease, the “Leased Property”) have been placed in trust for the benefit
of the registered owners (the “Owners”) of the Certificates of Participation, Series 2013,
executed and delivered in the original aggregate principal amount of $6,_______ (the
“Certificates”), evidencing proportionate undivided interests in the right to receive revenues
under the Lease, and any Additional Certificates (as defined in the Indenture) hereafter issued
under the Indenture. Capitalized terms used but not defined herein have the meaning assigned to
them in the Lease and the Indenture.
The Owner of this Certificate is entitled to receive, solely out of and to the extent
available from the sources hereinafter identified, the Principal Amount (stated above) on the
Maturity Date (stated above) (or earlier as hereinafter provided) and interest thereon at the
Interest Rate (stated above), payable on June 1 and December 1 in each year, commencing on
December 1, 2013. Principal of (other than principal due on each mandatory sinking fund
redemption date prior to maturity) and the final installment of interest on this Certificate are
payable to the Owner hereof in lawful money of the United States of America upon maturity or
prior redemption (except mandatory sinking fund redemption) hereof and upon presentation and
surrender hereof at the Operations Center of the Trustee in _______________. Interest on this
Certificate (except the final installment of such interest) and principal due on any mandatory
sinking fund redemption date (other than on final maturity) is payable by check or draft of the
Trustee to be mailed on each interest payment date (or, if such payment date is not a Business
Day, on the next succeeding Business Day without additional interest) to the person in whose
name this Certificate is registered in the registration records of the Trustee, and at the address
appearing thereon, all in the manner provided in the Indenture. Alternative means of payment of
interest may be used if mutually agreed to in writing between the Owner of this Certificate and
the Trustee, as provided in the Indenture.
No provision of the Certificates, the Indenture, the Lease, the Site Lease dated May __,
2013 between the Town, as lessor, and the Trustee, as lessee, shall be construed or interpreted (a)
to directly or indirectly obligate the Town to make any payment in any Fiscal Year in excess of
amounts appropriated for such Fiscal Year; (b) as creating a debt or multiple fiscal year direct or
indirect debt or other financial obligation whatsoever of the Town within the meaning of Article
XI, Section 6 or Article X, Section 20 of the Colorado Constitution or any other constitutional or
statutory limitation or provision; (c) as a delegation of governmental powers by the Town; (d) as
a loan or pledge of the credit or faith of the Town or as creating any responsibility by the Town
for any debt or liability of any person, company or corporation within the meaning of Article XI,
Section 1 of the Colorado Constitution; or (e) as a donation or grant by the Town to, or in aid of,
any person, company or corporation within the meaning of Article XI, Section 2 of the Colorado
Constitution.
Under the Lease, the Leased Property has been subleased by the Trustee to the Town; and
the Town has agreed, subject to the terms of the Lease, to pay directly to the Trustee rental
payments (the “Base Rentals”) in consideration for its right to use the Leased Property, which
Base Rentals are required by the Indenture to be used by the Trustee to pay the Certificates and
interest thereon. In addition to the Base Rentals, the Town has agreed, subject to the terms of the
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4818-1560-6803.1
Lease, to make certain other payments (the “Additional Rentals”), including the costs of all
taxes; insurance premiums; reasonable expenses and fees of the Trustee; utility charges; costs of
maintenance, upkeep, repair, restoration, modification, improvement and replacement; payments
to the Rebate Fund; and all other charges and costs expressly required to be paid by the Town
under the Lease with respect to the Leased Property, the Certificates, the Lease, the Site Lease,
the Indenture or any matter related thereto.
The Lease is subject to annual renewal at the option of the Town as provided in the
Lease. The obligation of the Town to pay Base Rentals and Additional Rentals under the Lease
will terminate in the event that the Town fails, for any reason, to appropriate by December 31 of
each Fiscal Year sufficient amounts authorized and directed to be used to pay all Base Rentals
scheduled to be paid in the next ensuing Fiscal Year and all Additional Rentals estimated to be
payable in the next ensuing Fiscal Year (as provided in the Lease), and will also terminate upon
the occurrence of certain other events as described in the Lease (any such event is referred to
herein as an “Event of Nonappropriation”). If the Lease is terminated by the Town by reason of
an Event of Nonappropriation or is terminated by reason of an Event of Default, the principal
amount of this Certificate and interest hereon will be payable from such moneys, if any, as may
be available for such purpose, including any moneys received by the Trustee from the subleasing
of or a liquidation of the Trustee’s interest in the Leased Property. The Trustee may waive an
Event of Nonappropriation or an Event of Default under certain circumstances as provided in the
Lease and the Indenture.
Under certain circumstances, this Certificate and the interest hereon may also be payable
from the Net Proceeds (as defined in the Lease) of title or casualty insurance policies or
condemnation awards. The Lease may also be terminated in the event that the Town shall
exercise its option to purchase the Leased Property by making payment of the Purchase Option
Price (as defined in the Lease). In the event that the Town shall pay the Purchase Option Price,
the proceeds thereof are required to be used to pay the Certificates and interest thereon.
The Certificates are subject to redemption as follows:
(a) The Certificates shall be callable for redemption prior to maturity, at the
option of the Town, in whole or in part, and if in part by lot in such manner as the Trustee
shall determine, on December 1, 2020 and on any date thereafter at the redemption price
(expressed as a percentage of principal amount) of 100%, plus accrued interest to the
redemption date.
(b) The Certificates shall be called for redemption, in whole, at a redemption
price (expressed as a percentage of principal amount) of 100%, plus accrued interest to
the redemption date, on any interest payment date in the event of the exercise by the
Town of its option to purchase the Leased Property, as provided in the Lease, upon
payment of the then applicable Purchase Option Price from moneys of the Town not
borrowed by the Town or derived from any installment purchase or lease purchase
financing by the Town.
(c) The Certificates shall also be called for redemption at any time as set forth
below upon the occurrence of an Event of Nonappropriation or an Event of Default.
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If the Lease is terminated by reason of the occurrence of an Event of Nonappropriation of
an Event of Default, the Trustee is required under the Indenture to immediately notify the
registered owners of the Certificates of such termination and whether moneys available under the
Indenture are sufficient to provide for the payment in full of all Outstanding Certificates and the
interest thereon when due. If moneys on hand, including any Net Proceeds (as defined under the
Indenture) and other moneys then available under the Indenture, are insufficient to provide for
the payment in full of all Outstanding Certificates and the interest thereon when due, the Trustee
shall notify the registered owners of the Certificates of the availability of redemption under
Section 4.02 of the Indenture and, upon direction of the registered owners of a majority in
aggregate principal amount of the Certificates then Outstanding, and upon indemnification as to
costs and expenses as provided in the Indenture, is required to, without any further demand or
notice, exercise all or any combination of Lease Remedies as provided in the Lease, and the
Outstanding Certificates are to be redeemed by the Trustee from the Net Proceeds resulting from
the exercise of such Lease Remedies and all other moneys, if any, then on hand and being held
by the Trustee for the registered owners of the Outstanding Certificates. If the Net Proceeds
resulting from the exercise of such Lease Remedies and other moneys then available under the
Indenture are insufficient to redeem the Outstanding Certificates at the redemption price
(expressed as a percentage of principal amount) of 100% plus interest accrued to the redemption
date, then, on the redemption date, such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys, including moneys then available under the Indenture, are to be
allocated proportionately among the Certificates, according to the principal amount thereof
Outstanding. In the event that such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys are in excess of the amount required to redeem the Outstanding
Certificates at the redemption price (expressed as a percentage of principal amount) of 100%
plus interest accrued to the redemption date, then such excess moneys are to be paid to the Town.
Prior to any distribution of the Net Proceeds resulting from the exercise of any of such remedies,
the Trustee is entitled to payment of its reasonable and customary fees for all services rendered
in connection with such disposition, as well as reimbursement for all reasonable costs and
expenses, including attorneys’ fees, incurred thereby, from proceeds resulting from the exercise
of such Lease Remedies and other moneys. IF THE OUTSTANDING CERTIFICATES ARE
REDEEMED FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT
THEREOF PLUS INTEREST ACCRUED TO THE REDEMPTION DATE, SUCH PARTIAL
PAYMENT SHALL BE DEEMED TO CONSTITUTE A REDEMPTION IN FULL OF THE
OUTSTANDING CERTIFICATES, AND UPON SUCH A PARTIAL PAYMENT NO
REGISTERED OWNER OF SUCH OUTSTANDING CERTIFICATES SHALL HAVE ANY
FURTHER CLAIM FOR PAYMENT AGAINST THE TRUSTEE OR THE TOWN.
Mandatory Sinking Fund Redemption. The Certificates are subject to mandatory
sinking fund redemption, prior to maturity, in part, by lot in such manner as the Trustee shall
determine, at a price (expressed as a percentage of principal amount) of 100%, plus accrued
interest to the date of redemption, on the following dates and in the following amounts:
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4818-1560-6803.1
Sinking Fund
Redemption Date
(December 1) Principal Amount
2014 $370,000
2015 380,000
2016 390,000
2017 395,000
2018 405,000
2019 415,000
2020 425,000
2021 435,000
2022 450,000
2023 460,000
2024 470,000
2025 480,000
2026 495,000
2027 * 505,000
____________________
* Final Maturity
On or before the 45th day prior to each such mandatory sinking fund redemption date, the
Trustee shall proceed to select the Certificates for redemption from such sinking fund on the next
December 1, and thereafter give notice of such call. At its option, to be exercised on or before
the 60th day next preceding any such mandatory sinking fund redemption date, the Town may
(A) deliver to the Trustee for cancellation Certificates in any aggregate principal amount desired,
that are subject to mandatory sinking fund redemption on the next mandatory sinking fund
redemption date, and (B) receive a credit in respect of its mandatory sinking fund redemption
obligation for any such Certificates so delivered and which, prior to said delivery, have been
redeemed (otherwise than through the operation of the sinking fund) and cancelled by the
Trustee and not theretofore applied as a credit against any mandatory sinking fund redemption
obligation. Each Certificate, so delivered shall be credited by the Trustee at the principal amount
thereof on the obligation of the Town on the next occurring mandatory sinking fund redemption
date, and, to the extent of any excess, to the next annual mandatory sinking fund redemption date
or dates, and the principal amount of Certificates to be redeemed by operation of such sinking
fund on such date or dates shall be accordingly reduced.
In the event that the Certificates are called for optional redemption in part, the principal
amount so redeemed shall be immediately credited against the obligation to call the Certificates
for mandatory sinking fund redemption in the same proportion (rounding to the nearest $5,000)
as the principal amount of Certificates that are required to be called for mandatory sinking fund
redemption on each mandatory sinking fund redemption date bears to the principal amount of
Certificates that are Outstanding prior to such optional redemption.
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4818-1560-6803.1
Notice of the call for any redemption, identifying the Certificates or portions thereof to be
redeemed and specifying the terms of such redemption, shall be given by the Trustee by mailing
a copy of the redemption notice by United States registered or certified mail, at least 30 days and
not more than 60 days prior to the date fixed for redemption, and to the Owner of each
Certificate to be redeemed at the address shown on the registration books; provided, however,
that failure to give such notice by mailing, or any defect therein, shall not affect the validity of
any proceedings of any Certificates as to which no such failure has occurred.
Any notice mailed as provided in the immediately preceding paragraph shall be
conclusively presumed to have been duly given, whether or not the Owner receives the notice.
If at the time of mailing of notice of redemption there shall not have been deposited with
the Trustee moneys sufficient to redeem all the Certificates called for redemption, which moneys
are or will be available for redemption of Certificates, such notice will state that it is conditional
upon the deposit of the redemption moneys with the Trustee not later than the opening of
business on the redemption date, and such notice shall be of no effect unless such moneys are so
deposited.
The Trustee shall pay to the Owners of Certificates so redeemed, the amounts due on
their respective Certificates, at the Operations Center of the Trustee upon presentation and
surrender of the Certificates.
The Certificates are issuable only as fully registered Certificates in denominations of
$25,000 and in integral multiples of $5,000 if in excess of $25,000. Certificates may be
exchanged for an equal aggregate principal amount of fully registered Certificates of the same
maturity of other authorized denominations, but only in the manner, subject to the limitations and
conditions, and upon payment of the charges provided in the Indenture.
This Certificate is transferable by the Owner hereof in person or by his attorney duly
authorized in writing on the registration records kept at the Operations Center of the Trustee
upon surrender of this Certificate together with a duly executed written instrument of transfer
satisfactory to the Trustee and upon receipt by the Trustee, from the proposed transferee, of an
Investment Letter substantially in the form of Appendix C to the Indenture. Upon such transfer,
a new fully registered Certificate or Certificates of the same maturity, of authorized
denomination or denominations, for the same aggregate principal amount, will be issued to the
transferee in exchange herefor, all upon payment of any reasonable charges and any taxes,
transfer fees or other governmental charges required to be paid with respect to such exchange or
transfer, and subject to the terms and conditions set forth in the Indenture. The Trustee may
deem and treat the person in whose name this Certificate is registered as the absolute owner
hereof, for the purpose of receiving payment and for all other purposes.
The Trustee will not be required to transfer or exchange the Certificates during the period
beginning on a Record Date (as defined in the Indenture) and ending on the next Interest
Payment Date of the Certificates nor to transfer or exchange any Certificate after the mailing of
notice calling such Certificate or any portion thereof for redemption has been given, nor during
the period of 15 days next preceding the giving of such notice of redemption.
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The Indenture permits amendments thereto and to the Lease, upon the agreement of the
Town and the Trustee and with the approval of the Owners of not less than a majority or, in
certain instances, 100% in aggregate principal amount of the Certificates at the time Outstanding,
as defined in the Indenture. The Indenture also contains provisions permitting the Town and the
Trustee to enter into amendments to the Indenture and the Lease without the consent of the
Owners of the Certificates for certain purposes, including, without limitation, the issuance of
Additional Certificates to refund all of the Outstanding Certificates and Additional Certificates
previously executed and delivered. The Indenture requires the written consent of the Trustee to
any amendment of the Indenture or the Lease which modifies the rights, duties or immunities of
the Trustee.
The Indenture permits the execution and delivery of Additional Certificates from time to
time under certain terms and conditions, and if issued, such Additional Certificates will be
proportionately and ratably secured under and entitled to the protection given by the Indenture
with the Certificates. Reference is hereby made to the Indenture for a description of the rights,
duties and obligations of the Town, the Trustee and the Owners, the terms upon which
Additional Certificates may be executed and delivered, the terms upon which the Certificates and
any Additional Certificates are secured, the terms and conditions upon which the Certificates will
be deemed to be paid at or prior to maturity or redemption of the Certificates upon the making of
provision for the full or partial payment thereof, and the rights of the Owners upon the
occurrence of an Event of Default or an Event of Nonappropriation. THE INDENTURE
CONSTITUTES THE CONTRACT BETWEEN THE REGISTERED OWNER OF THIS
CERTIFICATE AND THE TRUSTEE. THIS CERTIFICATE IS ONLY EVIDENCE OF
SUCH CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECTS TO THE TERMS OF
THE INDENTURE, WHICH SUPERSEDES ANY INCONSISTENT STATEMENT IN THIS
CERTIFICATE.
This Certificate is issued with the intent that the laws of the State of Colorado shall
govern its legality, validity, enforceability and construction.
This Certificate shall not be valid or become obligatory for any purpose or be entitled to
any security or benefit under the Lease or the Indenture, unless it shall have been manually
signed on behalf of the Trustee.
IN WITNESS WHEREOF, this Certificate has been executed with the manual signature
of an authorized signatory of the Trustee as of the date specified above.
UMB BANK, n.a., as Trustee
By
Authorized Signatory
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4818-1560-6803.1
ASSIGNMENT
(The Trustee may require the payment, by the Owner of any Certificate requesting
transfer, of any reasonable charges, as well as any taxes, transfer fees or other governmental
charges required to be paid with respect to such transfer.)
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
_________________________ the within Certificate and all rights thereunder, and hereby
irrevocably constitutes and appoints _________________________ attorney to transfer the
within Certificate on the records kept for registration thereof, with full power of substitution in
the premises.
Dated:
Address of transferee:
Social Security or other tax
identification number of transferee:
NOTE: The signature to this Assignment must correspond with the name as written on the face
of the within Certificate in every particular, without alteration or enlargement or any change
whatsoever.
[End of Form of Certificate]
4818-1560-6803.1
APPENDIX B
DESCRIPTION OF THE LEASED PROPERTY
Description of Site:
Description of Building:
The Town Hall, a steel-framed, two story office building containing approximately
30,500 square feet, located at 170 MacGregor Avenue, Estes Park, Colorado.
Description of Equipment:
All fixtures and machinery located in the Building, including but not limited to all
lighting, heating, plumbing, ventilating and air conditioning fixtures, inside telephone wiring and
connecting blocks/jacks, plants, built-in mirrors, floor coverings, intercom systems, built-in
kitchen appliances, sprinkler systems and controls and smoke/fire detectors.
4818-1560-6803.1
APPENDIX C
FORM OF INVESTMENT LETTER
Town of Estes Park
170 MacGregor Avenue
P.O. Box 1200
Estes Park, Colorado 80517
UMB Bank, n.a.
1670 Broadway
Denver, Colorado 80202
BLX Group
1400 16th Street, Suite 400
Denver, Colorado 80202
Certificates of Participation, Series 2013
evidencing proportionate interests in rights to
receive certain Revenues pursuant to the
Lease Purchase Agreement between
UMB Bank, n.a., as trustee and sublessor, and
the Town of Estes Park, Colorado, as sublessee
Ladies and Gentlemen:
In connection with the purchase by the undersigned ____________________ (the
“Purchaser”) of $__________ aggregate principal amount of the above-captioned Certificates of
Participation (the “Certificates”), the Purchaser hereby makes the following representations,
acknowledgments and agreements:
1. The Purchaser certifies that it is either a “qualified institutional investor” within
the meaning of Rule 144A promulgated by the Securities and Exchange Commission under the
Securities Act of 1933, as amended, or a bank, registered investment company or other
“accredited investor,” as such term is defined in Regulation D promulgated by the Securities and
Exchange Commission under the Securities Act of l933, as amended, and is duly and validly
authorized to purchase the Certificates and the Certificates are a lawful investment for the
Purchaser.
2. The Purchaser acknowledges that the Certificates have not been, and are not
intended to be, registered under the Securities Act of l933, as amended (the “Act”), or registered
or otherwise qualified under the securities laws of any state or other jurisdiction, and that no
credit rating has been sought or obtained with respect to the Certificates.
3. In connection with the purchase of the Certificates, the Purchaser has been
furnished with all financial and other information that it has deemed necessary to enable it to
make an informed decision concerning an investment in the Certificates. Without limiting the
generality of the foregoing, the Purchaser acknowledges that the Certificates do not constitute a
general obligation or a multiple-fiscal year direct or indirect debt or other financial obligation of
the Town of Estes Park, Colorado (the “Town”) within the meaning of any constitutional or
statutory debt limitation, that the Certificates are payable solely from base rentals to be paid by
the Town under the Lease Purchase Agreement dated May __, 2013 (the “Lease”), between the
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4818-1560-6803.1
Town, as sublessee, and UMB Bank, n.a., as trustee and sublessor (the “Trustee”), that all
payment obligations of the Town under the Lease, including, without limitation, the obligation of
the Town to pay base rentals, are from year to year only and do not constitute a mandatory
payment obligation of the Town in any fiscal year beyond a fiscal year in which the Lease shall
be in effect, that the Lease is subject to annual renewal at the option of the Town and will be
terminated upon the occurrence of an Event of Nonappropriation or Event of Default (as defined
in the Lease), that in such event, all payments from the Town under the Lease will terminate and
the Certificates and the interest thereon will be payable from moneys, if any, held by the Trustee
under the Indenture of Trust dated May __, 2013 (the “Indenture”), executed by the Trustee, and
any amounts made available by actions of the Trustee regarding the Leased Property (as defined
in the Indenture), and that the Trustee has no obligation to make any payments on the
Certificates.
4. The Purchaser acknowledges that it assumes responsibility for making such
investigation as the Purchaser deems necessary in connection with its decision to purchase the
Certificates, that it has had an opportunity to make inquiry, or to seek information, from the
Town with respect to the Certificates and that is inquiries or requests for information have been
addressed to its satisfaction.
5. The Purchaser is sufficiently knowledgeable and experienced in financial and
business matters including, but not limited to, the purchase and ownership of tax-exempt
obligations, to be able to evaluate the risks and merits of the investment represented by the
purchase of the Certificates and is able to bear the economic risk of investment in the
Certificates.
6. The Purchaser is purchasing the Certificates solely for its own account and not on
behalf of others, and solely for investment and not with a view to reselling or otherwise
distributing all or any part of the Certificates; provided, however, that the Purchaser reserves the
right to dispose of the Certificates in its sole discretion, subject to the terms of the Indenture and
the Certificates. The Purchaser understands that it may not sell, transfer or otherwise dispose of
the Certificates, other than to its affiliates, without registration or qualification under the Act or
without qualifying for an exemption therefrom. Should the Purchaser ever elect to sell the
Certificates or any portion thereof, other than to its affiliates, it will take full responsibility for
any registration, qualification, and disclosure with respect to the Certificates.
7. The Purchaser acknowledges that the Trustee and BLX Group do not, and will not
in the future, have the obligation to monitor the financial condition of the Town or monitor
payment of the Certificates or compliance with the various documents relating to the Certificates.
8. All representations of the Purchaser contained herein shall survive the sale and
delivery of the Certificates to the Purchaser.
[PURCHASER]
By
Name
Title
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4818-1560-6803.1
MULTIPURPOSE EVENT CENTER (MPEC) –STALL BARN FINANCINGSldiOffiSteve McFarland –Finance Officer
MPEC–STALLBARNFINANCINGMPEC STALL BARN FINANCING SITE LEASEUMB BANK (TRUSTEE)TOWN OF ESTES PARK(TRUSTEE)Town Hall will be leased to UMB Bank for ~$6.1m in prepaid rentTownwilluseproceedstoconstructMPECandStallBarnrent. Town will use proceeds to construct MPEC and Stall Barn.
MPEC–STALLBARNFINANCINGMPEC STALL BARN FINANCING LEASE PURCHASE AGREEMENT (sub‐lease)UMB BANK (TRUSTEE)TOWN OF ESTES PARK(TRUSTEE)UMB leases Town Hall back to Town. Town makes semi‐annualrental payments @ 2.43% (~$515,000‐520,000/yr) until 2027. Canbfi d/ idffithltbiii2020Sitlberefinanced/paidoffwithno penaltybeginningin2020.Siteleaseterminates on earlier of when Lease‐Purchase is paid off, or 2042.
MPEC–STALLBARNFINANCINGMPEC –STALL BARN FINANCING INDENTURE OF TRUST/CERTIFICATES OF PARTICIPATION (COPs)UMB BANK (TRUSTEE)TOWN OF ESTES PARKUMBwillthenissueCOPsBB&TwillUMBwillthenissueCOPs.BB&Twillbe the sole purchaser. BB&T ispurchasing the revenue flowrepresented by the rent payable bythe Town under the Lease PurchaseAgreement. The COPs is between thebanks, but the Town and its collateralarethecenterpiecesoftheBRANCH BANK& TRUST (BB&T)arethecenterpiecesofthetransaction.
MPEC–STALLBARNFINANCINGMPEC STALL BARN FINANCING ORDINANCETHE REQUESTED ORDINANCE AUTHORIZES THE FINANCING OFTHECONSTRUCTIONOFTHEMPECANDSTALLBARNATTHECONSTRUCTIONOFTHEMPECANDSTALLBARNATSTANLEY PARK FAIRGROUNDS BY (1) LEASING TOWN HALL ANDA PORTION OF THE ADJACENT PARKING AREA TO UMB BANKTHROUGH A SITE LEASE, AND THEN (2) SUBLEASING TOWNHALL BACK TO THE TOWN FROM UMB PURSUANT TO A LEASEPURCHASE AGREEMENT. THE ORDINANCE ALSOACKNOWLEDGES THE INDENTURE OF TRUST (COPs) BETWEENUMB BANK AND BB&T, NOT TO EXCEED A PRINCIPAL AMOUNTOF$6125000OF$6,125,000.
To: Honorable Mayor Pinkham
Town Board of Trustees
Town Administrator Lancaster
From: Bo Winslow, Events and Fairgrounds Manager
Date: April 23, 2013
RE: Approval of IGA for USA Pro Challenge Event
Background:
For quite some time staff has been working with Larimer County, Loveland, Fort Collins
and Windsor on submitting a bid to have a stage of the USA Pro Challenge come
through Northern Colorado. As you are aware, the bid was awarded to the area and
now the real work begins.
Staff has been working on a race route and after an exhaustive review, they have made
the below outlined proposal. This is only a proposed route and will be pending review
and approval from race officials in late April.
Recommended Route Overview:
• The race will begin in Loveland and head toward Windsor where it will then go
west on Hwy 34 from Loveland to Drake. At Drake the race would turn on County
Rd 43 and head through Glenhaven.
• Subsequently, the race will then climb the switchbacks, where officials will
identify a winner of the hill climb, and continue west on Devils Gulch Road to
Wonderview Ave.
• The route will then turn east (left) and head to the 34/36 intersection where it will
turn west and travel up and along Elkhorn Avenue. (Elkhorn Ave. is a scheduled
sprint built into the race)
• The next direction will be a left on Moraine Avenue and progress out to Mary’s
Lake Road, followed by a continuance onto Highway 7. From there, the race will
retreat down Highway 7 (north) to Highway 36, then to the 34/36 intersection
where the race will take its final turn on to Highway 34 and head east out of town.
Staff is requesting approval of needed road closures at this time. These closures would
be based on the route approved by race officials. Length of closures would be kept to
the minimum to conduct race and ancillary events.
Community Services Memo
Staff will present to the Community Development/Community Services Committee
monthly updates that will allow Town Board and the community to have the most
accurate and current information.
In order for all of these organizations to work together, receive and distribute monies
and also be able to negotiate and sign agreements, a Public Entity was created through
the attached. IGA is an Enterprise within the meaning of Article X, 20 of the Constitution
of the State of Colorado.
This entity will be known as the Northern Colorado Pro Challenge Local Organizing
Committee, (LOC) and will be responsible for planning, promoting, and conducting the
event. The LOC shall be governed by an Executive Committee (EC). The EC shall
consist of nine members, one from each Town/County agency and four other members
chosen by the five Town/County agencies.
It is understood that the budget is continuing to evolve; the most recent budget is
attached. It is the goal of the Local Organizing Committee to manage the event on a
zero based budget. As such, the Executive Committee shall have budget meetings
respectively on May 15, June 15, and July 15. These meetings will allow for the budget
to be refined and adjusted to maintain goal achievement. If at any point during these
checkpoints the budget is not accomplishing the goal, then expenses shall be revisited
and in-kind services being provided by each participating entity may be increased.
All financial transactions and record keeping shall be conducted in manners approved
by normal governmental accounting practices and the LOC shall cause an audit to be
conducted by an independent CPA licensed to practice in the State of Colorado.
Attorney White as well as all the attorneys from the other entities have reviewed the IGA
and are comfortable with the agreement as presented.
Budget:
The funds for this event are not budgeted and would need to come out of fund balance,
where there is money available. Staff is requesting $15,000 in cash for the event as
well as Town Departments contributing in-kind services.
Staff Recommendation:
Staff recommends approval of the IGA and appointment of Town Representative.
Recommended Motions:
I recommend approval/denial of the IGA as presented, including necessary road
closures and naming of Director Winslow as Town Representative for the LOC.
NOCO Cycling 2013 Budget
as of 04/09/13
Submitted for IGA
Roll up Operations Technical Media/PR/Marketing Volunteers Sponsorship VIP/Hospitality Education Ancillary Events/Festivals
Revenue
City if Ft. Collins 50,000$
City of Loveland 50,000$
Fort Collins CVB 20,000$
Town of Estes Park 15,000$
Town of Windsor 8,000$
Sponsorship Cash 275,000$
Ancillary Events 50,750$ 50,750$
Subtotal 468,750$ -$ -$ -$ -$ -$ -$ -$ 50,750$
In Kind City of Loveland 50,000$
In Kind City of Ft Collins 50,000$
Total 568,750$ -$ -$ -$ -$ -$ -$ -$ 50,750$
Expense
Ancillary Events 17,150$ 17,150$
Finish Festival 73,900$ 73,900$
Misc Operating 1,000$ 1,000$
Start Festival 23,850$ 23,850$
Toilets 2,500$ 2,500$
VIP Breakfast 19,500$ 19,500$
Vip Tent and catering -$
Equipment Rental 13,000$ 13,000$
Waste Management -$
Outreach 3,000$ -$ 3,000$
Marketing/PR 36,750$ 36,750$
Media Lunch -$
Media Workspace -$ -$
Press Conference Area -$ -$
Advanced Hotels 5,000$ 5,000$
Box Lunches 9,000$ 9,000$
Media Breakfast -$ -$
Professional Wait Staff -$ -$
Race Hotel - Night Of 67,500$ 67,500$
Race Hotel -Night before 27,000$ 27,000$
Race Hotels 10,500$ 10,500$
Start Crew Breakfast 560$ 560$
Team Breakfast 7,500$ 7,500$
Team Dinner 10,000$ 10,000$
Team Dinner Per Diem 7,500$ 7,500$
EMT/EMS 20,000$ 20,000$
Parking 450$ 450$
Permits 500$ 500$
Law Enforcement 110,000$ 110,000$
Public Works 50,000$ 50,000$
Volunteers 10,000$ 10,000$
Spaces Required 200$ 200$
Internet Connectivity /Cable 1,000$ 1,000$
Merchandise -$
Monument 20,000$ 20,000$
Security 7,500$ 7,500$
Sustainability -$ -$
Subtotal 554,860$ 144,560$ 192,150$ 36,750$ 10,000$ -$ 32,500$ 3,000$ 135,900$
Trade 1,500$ -$ -$ -$ -$ -$ -$ -$ 1,500$
Total 556,360$ 144,560$ 192,150$ 36,750$ 10,000$ -$ 32,500$ 3,000$ 137,400$
Net Surplus/Deficit 12,390$
1
AGREEMENT FOR THE ESTABLISHMENT OF THE NORTHERN COLORADO
PRO CHALLENGE LOCAL ORGANIZING COMMITTEE
THIS INTERGOVERNMENTAL AGREEMENT is made and entered into this
____________________among the following public entities which shall collectively be referred
to as the “Parties”, or individually as a “Contracting Party”: County of Larimer, Town of Estes
Park, the City of Fort Collins, the City of Loveland, the Town of Windsor.
WITNESSETH:
WHEREAS, the Colorado Constitution, Article XIV, Section §18 and §29-1-201, C.R.S.,
et seq. provide for and encourage political subdivisions of the State of Colorado to make the
most efficient and effective use of their powers and responsibilities by cooperating and
contracting with each other; and
WHEREAS, §29-1-203, C.R.S., as amended, authorizes any political subdivisions or
agency of the State of Colorado to cooperate or contract with one another to provide any
function, service, or facility lawfully authorized to each of the cooperating or contracting entities,
including the sharing of costs, imposition of taxes, or incurring of debt; and
WHEREAS, §29-1-203(4) permits the establishment of a separate governmental entity by
agreement; and,
WHEREAS, the Parties agree that it is in the best interests of the Parties and their citizens
to promote and conduct the August 24, 2013, Loveland-Fort Collins Stage of the USA Pro
Cycling Challenge (The Event) to be conducted by Classic Bicycle Racing, LLC (CBR); and,
WHEREAS, the Parties desire to enter into this Intergovernmental Agreement for the
purposes of establishing a separate Public Entity (Public Entity) to promote and conduct The
Event and to define the purpose of such Entity and to state the manner in which each of the
Parties hereto will participate; and,
WHEREAS, the Parties intend that the Public Entity shall fall within the definition of a
“public entity” under the Colorado Governmental Immunity Act, §24-10-101, C.R.S; and,
WHEREAS, the Parties intend that those individuals providing services to the Public
Entity, either as employees or volunteers are Public Employees within the scope of §24-10-103
C.R.S.; and,
WHEREAS, the Parties intend that the Public Entity created by this agreement is an
Enterprise within the meaning of Article X, §20 of the Constitution of the State of Colorado; and,
WHEREAS, the Parties intend that the Public Entity is not subject to the revenue and
spending limitations imposed by Article X, §20(2)(d) of the Colorado Constitution; and,
2
WHEREAS, the Parties intend that the Public Entity and its activities all be in
furtherance of a public purpose;
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter
contained, the Parties agree as follows:
I. PREAMBLE
The Parties agree that the recitals set forth above are true and correct and those recitals
are hereby incorporated in the body of this Agreement as operative provisions.
II. ESTABLISHMENT OF THE NORTHERN COLORADO PRO CHALLENGE LOCAL
ORGANIZING COMMITTEE
1. The Parties hereby establish the Public Entity to be known as the Northern Colorado Pro
Challenge Local Organizing Committee (“LOC”) which shall be responsible for planning
funding, promoting, and conducting The Event.
2. The LOC is hereby created as a Colorado public entity established pursuant to §29-1-203,
C.R.S. et seq. and pursuant to the Colorado Governmental Immunity Act, §24-10-101, C.R.S., et
seq.
3. The LOC is an independent legal entity, separate and distinct from the Parties, but subject
to their ownership and control.
III. ESTABLISHMENT OF THE LOC BOARD
1. Governing Board. The LOC shall be governed by an Executive Committee (EC) which
shall have the power to perform all acts necessary, whether express or implied, to fulfill the
purpose, and to provide the functions, services and facilities, for which the LOC was created.
2. Composition of the Executive Committee. The EC shall consist of nine (9) members.
The members of the EC shall be appointed as follows:
a. One member shall be appointed by each of the parties for a total of five (5)
members.
b. The five members so appointed shall appoint four (4) additional members
using whatever process and criteria the five members deem advisable keeping
in mind the fundraising, public relations, and technical expertise needed to put
on the Event.
c. Members shall serve until this agreement terminates.
d. Vacancies to the EC shall be filled either by the parties or members making
the original appointment.
e. Members shall serve without compensation.
3. Voting and Quorum. Each member of the EC shall have one (1) vote. A quorum of the
EC shall consist of five members. No official action may be taken by the EC on any matter
3
unless a quorum is present. The affirmative vote of a majority of the EC members present at the
time of the vote shall be required for the EC to take action. The EC may meet, vote and act
through electronic means. The EC is subject to the Colorado Open Meetings Law.
4. Bylaws. The EC may either adopt bylaws or it may adopt an organizing resolution or
rules establishing officers and detailing all matters in connection therewith, including the
election, duties and terms of officers and the filling of any officer vacancies, the establishment
and responsibilities of committees, scheduling of meetings, and standing operating and fiscal
procedures, as it deems necessary, provided the bylaws or rules are in compliance with Articles I
and II of Title 29, C.R.S., as amended, and this Agreement.
IV. POWERS OF THE LOC
1. Plenary Powers. Except as otherwise limited by this Agreement, the LOC, in its own
name and as provided herein, shall have and may exercise all powers lawfully authorized to any
of the Parties and may exercise such powers pursuant to §29-1-203, this Agreement, as amended,
including all incidental, implied, expressed or such other powers as necessary to execute the
purposes of this Agreement. These powers include the authority to receive and expend funds
from any source, to apportion costs and obligations to the Parties as stated herein or as may from
time to time be agreed to, and to enter into contracts. The LOC shall act through the EC, officers
and agents as authorized by this Agreement, the bylaws or other resolution of the EC. The LOC
shall not have the power to levy taxes on its own behalf or on behalf of any Contracting Party or
to bind any Party to a debt or obligation without the specific consent of the Party, nor shall the
LOC have the power of eminent domain.
2. Enumerated Powers. The LOC is authorized to undertake all actions reasonably
necessary to planning, funding, promoting, and conducting the Event, and to carry out the intent
and purpose of this Agreement, including but not limited to:
a. Negotiate, enter into and perform contracts, agreements and other
obligations with the USA Pro Cycling Challenge for the purpose of promoting and
conducting The Event.
b. Collect, hold, and spend funds from any source including donations,
sponsorships, advertising, product sales, fees, ancillary events, and other spectator
charges.
c. Acquire, hold, lease (as lessor or lessee), sell, or otherwise dispose of any
legal or equitable interest in personal property in connection with The Event.
d. Enter into, make and perform contracts and agreements with other
governmental, non-profit, and private entities which are reasonably necessary to stage
The Event.
e. Employ individuals, engage in employee borrowing arrangements, and
contract with others as the EC deems necessary for the promotion and staging The Event
or to otherwise perform the obligations of agreements related to The Event.
4
f. Conduct the business and affairs of the LOC.
g. Incur debts, liabilities or obligations to the extent and in the manner
permitted by law. However, the LOC shall not incur debt in excess of Twenty-Five
Thousand Dollars ($25,000.00) without agreement of the Parties.
h. Sue and to be sued in its own name.
i. Receive contributions, gifts, bequests, grants, cash, equipment or services
from the Parties or any other public or private individual or entity for the furtherance of
the intent and purpose of this Agreement, and the LOC’s performance of its obligations
under this Agreement.
j. Undertake any other actions or services that the LOC believes are
reasonably necessary for the exercise of its powers and the performance of its obligations
under this Agreement.
V. RULES AND REGULATIONS
The EC may promulgate and adopt rules, regulations, policies and procedures which the
EC deems necessary to carry out the intent and purposes of this Agreement, and to exercise the
LOC’s powers and perform the LOC’s obligations. After their initial adoption, the rules,
regulations, policies and procedures may be modified or amended, provided any such
modification or amendment: (a) is approved by a majority vote of the EC; (b) is consistent with
the purpose and intent of this Agreement; (c) is not in conflict with any of the provisions of this
Agreement; and (d) is in compliance with any and all applicable state and federal laws.
VI. FINANCIAL COMMITMENT OF THE PARTIES
1. Funding. The Parties agree to provide initial funding, which funds may be in cash
transfers or in-kind services to the LOC as follows:
The City of Fort Collins: Fifty-thousand dollars ($50,000.00) plus $50,000 in-kind.
The City of Loveland: Fifty-thousand dollars ($50,000.00) plus $50,000 in-kind.
The Town of Windsor: Ten-thousand dollars ($10,000.00).
The Town of Estes Park: Fifteen-thousand dollars ($15,000).
Larimer County: In-kind only.
2. Future Funding. It is understood that the LOC’s budget is continuing to evolve. It is
the goal of the EC to manage the event on a zero-based budget, where no profit is gained and
expenses do not exceed revenue. To provide accountability, the EC shall meet on May 15, June
15, and July 15 to review the budget. If on these dates the LOC’s budget is not accomplishing
this goal, then the LOC will take the following actions:
a. Refine the budget by reducing expenses or seek additional private funding so
the goal may be attained; and
5
b. Offset expenses by increasing the in-kind services being provided by the
Parties.
In the event that these actions are not sufficient to provide adequate funding for the LOC’s
necessary expenses, each of the Parties agrees to return to their respected governing bodies to
request supplemental funding.
VII. USE OF FUNDS – CONTRIBUTIONS
The LOC shall use the funds generated in connection with contributions, sponsorships,
advertising revenue, ticket sales and any revenue from any source solely for the purpose of
promoting and conducting The Event and LOC operations including any expense obligated to
CBR.
VIII. BOOKS AND RECORDS
The LOC shall provide for the keeping of accurate and correct books of account showing
in detail the revenue and expenses in connection with The Event. The LOC’s books of account
shall correctly show any and all revenues, costs, or charges paid to or to be paid by each of the
Parties, and all funds received by, and all funds expended by the LOC. The LOC’s books and
records shall be open to inspection during normal business hours upon reasonable notice by the
Parties. The books and records of the LOC shall also be made available to the public in
accordance with the provisions of §24-72-201, C.R.S., et seq. (the “Open Records Act”).
The LOC shall cause an audit to be conducted by an independent Certified Public
Accountant licensed to practice in the State of Colorado. The LOC shall comply with the
provisions of §29-1-601, C.R.S. et seq., The Local Government Audit Law, as may be amended
from time to time. The LOC shall comply with all federal and state financial reporting
requirements.
IX. REPORTS TO PARTIES
On a monthly basis, the LOC shall submit a comprehensive financial report to the Parties
summarizing the, revenue, expenses, obligations and other activities of the LOC starting the end
of the month following approval of this Agreement.
X. ASSETS OF THE LOC
1. Assets. Any assets purchased or received by the LOC subsequent to the formation of the
LOC shall be owned by the LOC for the mutual benefit of the Parties. Assets purchased with
funds of the LOC and one or more Parties shall be owned jointly in proportion to the amounts
contributed.
2. Asset Inventory Schedules. The LOC shall maintain an asset inventory list for any and
all real and personal property acquired by the LOC.
6
XI. OTHER REPRESENTATIONS AND OBLIGATIONS OF THE PARTIES
1. The Parties have read and understand the agreements, obligations, and undertakings of
the LOC with respect to CBR. The Parties agree to use their best efforts and to
participate in good faith for the LOC to comply with such agreements, obligations and
undertakings.
2. The Parties understand and agree that individual agreements, obligations and
undertakings of each of them for its portion of the Event will be required. The parties
shall use their best efforts and to participate in good faith for themselves individually and
for the LOC to comply with those agreements, obligations and undertakings.
3. The Parties understand and agree that the CBR will issue an Event Handbook that
contains additional obligations and conditions for promoting and staging the Event. The
parties agree to use their best efforts and to participate in good faith for the LOC and the
Parties to comply with the terms and conditions of the Handbook.
4. The Parties waive all claims for indemnification and damages against each other for any
claims arising out of the performance of this agreement or the performance of any
agreement or undertaking with CBR.
XII. DEFAULT OF PERFORMANCE
1. In the event any Contracting Party fails to perform any of its covenants and undertakings
under this Agreement, the LOC may terminate this Agreement as to such Contracting Party. The
LOC shall cause written notice of the LOC’s intention to terminate said Agreement as to such
Contracting Party to be given to that party’s governing body identifying the matter in default.
Upon failure to cure any such default within thirty (30) days after such notice is given, the
membership in the LOC of the defaulting party shall thereupon terminate and said Contracting
Party shall thereafter have no voting rights as a member of the LOC, nor be entitled to
representation on the EC, and said Contracting Party may thereafter be denied service by the
LOC. Furthermore, any Contracting Party whose participation is terminated under the provisions
of this article of the Agreement shall forfeit all right, title and interest in and to any property of or
within the LOC to which it may otherwise be entitled upon the dissolution of the LOC. Subject
to Section XI (4), this article is not intended to limit the right of the LOC or any Contracting
Party under this Agreement to pursue any and all other remedies it may have for breach of this
Agreement.
2. In the event of litigation between any of the Parties hereto concerning this Agreement (or
between the LOC and any Contracting Party), the prevailing party may recover its costs and
reasonable attorney fees incurred therein.
7
XIII. DURATION OF AGREEMENT
This Agreement shall be in effect from the time it is fully executed and shall continue
December 31, 2013. At that time the Agreement shall terminate, the entity created by this
agreement shall dissolve and financial affairs of the LOC shall be wound up.
XIV. WITHDRAWAL AND DISSOLUTION
1. Individual Party’s Withdrawal. No Contracting Party may withdraw from this LOC.
2. Dissolution of LOC. Upon the termination of this Agreement pursuant to Section XIII
above, the LOC Board and the Parties shall take such actions necessary to finalize and conclude
the LOC’s operations and effect the orderly dissolution of the LOC.
3. Distribution of Assets. All contributions of real and personal property, all net cash
proceeds received by the LOC and existing on December 31, 2013, and all assets of the LOC
shall be distributed on a proportional basis in accordance with the original contributions of the
parties under Section VI, taking into consideration supplemental and additional contributions if
any have been made. No consideration shall be given for in-kind services provided to the LOC
for purposes of this distribution. The EC shall be responsible for inventorying the revenues,
property and assets of the LOC, making distributions to the Parties and concluding the affairs of
the LOC. A Contracting Party which has made a contribution toward a jointly owned asset (as
defined in Section X) would be entitled to retain ownership of the asset upon termination;
however, the Contracting Party must account to the LOC for the amount of the LOC’s
contribution toward purchase of the asset upon distribution of the other assets of the LOC.
XV. LIABILITY OF THE BOARD OF DIRECTORS,
OFFICERS AND EMPLOYEES OF THE LOC
As a public entity, the LOC and its directors, officers and employees shall be immune
from civil liability in accordance with, and the extent provided by §24-10-101,C.R.S., et seq. (the
Governmental Immunity Act) and any other applicable law. In addition, and pursuant to the
Governmental Immunity Act, the LOC will defend, indemnify, and hold harmless all officers,
directors, and employees for claims arising from activities within the scope of their duties of
such individuals. The LOC may purchase insurance for this purpose.
XVI. AMENDMENTS
This Agreement may be amended upon the affirmative vote of three Parties.
XVII. SEVERABILITY
In the event any provision of this Agreement is determined to be illegal or invalid for any
reason, all other provisions of this Agreement shall remain in full force and effect unless and
until otherwise determined. The illegality of any provision of this Agreement shall in no way
affect the legality and enforceability of any other provision of this Agreement.
8
XVIII. SUCCESSORS AND THIRD PARTIES
This Agreement shall be binding upon and shall inure to the benefit of the successors of
the Parties. This Agreement is not intended to, and does not, inure to the benefit any individual
or entity who is not a Party.
XIX. ASSIGNMENT AND DELEGATION
No Contracting Party shall assign any of the rights nor delegate any of the duties created
by this Agreement without the written approval of three quarters (3/4) of the other Parties to this
Agreement, and any assignment without said approval is void.
XX. INTERPRETATION
a. This document represents the entire agreement of the parties and is deemed
prepared by all of the parties.
b. Performance of this agreement is subject to the Constitution and laws of the State
of Colorado and the charters of the municipal parties. Venue for any judicial action under this
Agreement shall be in Larimer County District Court.
IN WITNESS WHEREOF, the Parties hereto have caused their representatives to affix their
respective signatures hereto, as of the day and year hereinafter set forth.
COUNTY OF LARIMER,
STATE OF COLORADO
By
ATTEST:
Date:
CITY OF FORT COLLINS,
COLORADO
CITY OF LOVELAND, COLORADO
By
ATTEST:
Date:
By
ATTEST:
Date:
9
TOWN OF WINDSOR, COLORADO
By
ATTEST:
TOWN OF ESTES PARK, COLORADO
By
ATTEST:
Date:
Date:
Page 1
FINANCE Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Steve McFarland – Finance Officer
Date: April 23, 2013
RE: Extension of Estes Park Housing Authority Loan
Background:
The Town of Estes Park (Town) and the Estes Park Housing Authority (EPHA) entered
into a 2-year agreement on June 1, 2006, whereas the Town loaned the EPHA
$2,700,000 for the purpose of acquisition and resale of low-income housing. At
inception, the interest rate was 3.38% (interest rate of Colo Trust MMF) + 0.25% basis
points. The interest rate has reset annually.
Extensions have been granted in 2008, 2010 and again in 2011.
The remaining balance of the loan (as of the date of this memo) is approximately
$313,000. The current extension expires May 31, 2013. EPHA has requested an
additional extension, for a period of two years (June 1, 2013 – May 31, 2015). The
interest rate for the next fiscal period (June 1, 2013 – May 31, 2014) will be
approximately (depends upon interest rate as of June 1, 2013) 0.14% + the 0.25% basis
point, for a total of 0.39%.
The EPHA traditionally makes principal payments on the loan when units are sold.
Recently the EPHA has begun making $2,000/month principal payments regardless of
unit sales. The EPHA has been very timely with their interest payments throughout the
life of the loan.
Budget:
The General Fund portion of the loan was repaid in June 2008. However, by absorbing
the Catastrophic Loss Fund (CLF) as of December 31, 2010, the General Fund also
inherited the CLF’s portion of the EPHA Loan. The General, L&P, and Water Funds are
due varying percentages of the remaining ~$313,000 (General ~ $133,000, L&P ~
$104,000, Water ~$76,000). Required ratios in the Enterprise (L&P, Water) funds are
not affected by the proposed extension of the loan.
Page 2
FINANCE Memo
Staff Recommendation:
Staff recommends extension of the EPHA loan for a period of two years.
Sample Motion:
I move to approve/deny extending the Estes Park Housing Authority Loan for a period of
two years.
Town Attorney Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Lancaster
From: Gregory A. White, Town Attorney
Date: April 18, 2013
RE: FOSH Agreement – Determination of Feasibility
Background:
Pursuant to an Agreement dated May 14, 2002 between Friends of Stanley Hall (FOSH)
and the Town of Estes Park (the “Town”), FOSH transferred to the Town $475,435.34.
The Agreement was amended on May 9, 2006 (the “FOSH Agreements”). The current
amount of the FOSH funds held by the Town is approximately $458,215.
Pursuant to a Memorandum of Understanding between the Town and the Supporters of
the Performing Arts, Inc. (SOPA), the Town agreed to use the FOSH funds for
construction of the Performing Arts Facility (the “Theater”) located on the Stanley Park
Fairgrounds property owned by the Town. On April 26, 2011, the Town Board extended
the FOSH Agreements to determine feasibility of the SOPA Theater project to May 9,
2012, and extend all other dates in the FOSH Agreements by one year. In March,
2012, SOPA terminated the MOU with the Town effective April 12, 2012.
Town Staff has developed an application process for Estes Valley Non-Profit
Organizations whose non-profit purpose involves the performing arts to apply for
donation of the FOSH funds. However, the Town Board has never made a
determination pursuant to Section 3.c of the FOSH Agreement and Paragraph 3.c of the
Amendment to Agreement “that a facility is not feasible”. The FOSH Agreement refers
for use of the FOSH funds as follows:
“As partial funding for the design and construction of a facility for the presentation
of performing arts. Said facility may be a part of or combined with other uses in a
multi-task purpose facility. Said facility may be either an indoor or partially
enclosed facility. The Town may be the sole owner or lessee of the facility and/or
the Town may partner with another entity for the design, construction and
operation of the facility.”
Page 2
Prior to moving forward with the application process for donation of the FOSH funds, the
Town Board needs to make a determination that “a facility is not feasible”. There are no
other references within the FOSH Agreements as to how a determination of non-
feasibility is to be made by the Town Board.
Section 4 of the Amendment to Agreement provides that all the funds shall be disposed
of by the Town within eight years of May 9, 2006. This date was extended by the
Board’s action on April 26, 2011, for an additional year. Accordingly, the last potential
date of distribution of all the FOSH funds will be May 9, 2015.
Accompanying this Memo is a Memo dated April 22, 2011 which provides further
background information to the Town Board.
Budget:
There are no implications to the Town Budget as the Town is holding the FOSH funds in
a fiduciary capacity pursuant to the terms of the FOSH Agreements.
Staff Recommendation:
The Town Staff has no recommendation for this action as this is a policy decision of the
Town Board.
Sample Motion:
I move that that pursuant to the applicable provisions of the FOSH Agreements a facility
is not feasible and direct Staff to begin the application process.
or
I move that pursuant to the applicable provisions of the FOSH Agreements a facility is
feasible as (identify facility and feasibility).
Town Attorney Memo
To: Honorable Mayor Pinkham
Board of Trustees
Town Administrator Halburnt
From: Gregory A. White, Town Attorney
Date: April 22, 2011
RE: Friends of Stanley Hall Agreement – Town Board Options
I have been requested by the Town Board to provide a legal opinion with regard to the
Town Board’s options with regard to provisions of the Amendment to the Agreement
between the Friends of Stanley Hall, Inc. (FOSH) and the Town of Estes Park (the
“Town”) dated May 9, 2006, relating to the decision required to be made by the Town
Board on or before May 9, 2011.
BACKGROUND
In January of 1994, the Town of Estes Park entered into three development agreements
with the owners of property known as the Stanley Historic District. One of the
development agreements was between Stanley Hotels Limited (the “Stanley Hotel”) and
the Town. Section 6.01 of that Development Agreement provided that the Stanley Hotel
would lease Stanley Hall to the Town for ten years subject to certain conditions, one of
which was “the Town will use Stanley Hall as a performing arts center…” Shortly
thereafter, the ownership of the Stanley Hotel filed bankruptcy. In 1995, New Stanley
Associates acquired the Stanley Hotel property as part of the liquidation of the
bankruptcy estate. Also, in 1995, the Town, EPURA and New Stanley Associates
determined that it was necessary to make emergency repairs to Stanley Hall in order to
allow Stanley Hall to be used as a performing arts facility.
The Town received a grant from the Colorado Historical Society for the renovation of
Stanley Hall as a performing arts facility. As part of that process, an Advisory
Committee was formed to advise the three entities with regard to the renovation of
Stanley Hall. It became apparent to the entities and the Advisory Committee that more
funding was necessary for the renovation of Stanley Hall than was available through the
three entities including the Colorado Historical Society grant monies. A non -profit
corporation was formed for the purpose of raising funds for the renovation of Stanley
Hall known as Friends of Stanley Hall (FOSH).
Page 2
New Stanley Associates subsequently determined that it was no longer interested in
partnering with the Town, EPURA, and FOSH in the renovation of Stanley Hall and
unilaterally took over the renovation. In 2002, FOSH had at its disposal the sum of
approximately $475,000 that had been raised for the renovation of Stanley Hall for a
performing arts facility. The Town and FOSH entered into an Agreement dated May 14,
2002, which provided that FOSH transfer to the Town the sum of $475,434.34. The
Town agreed to accept those funds from FOSH and maintain those funds in a
segregated account.
Paragraph 3 of the Agreement provided that the Town use the funds “as partial funding
for the design and construction of a facility for the preservation of the performing arts”.
The Town had four years from the date of the Agreement to determine whether or not
the facility was feasible with the decision being within the sole discretion o f the Town. If
the facility was feasible, the Town would then have a total of seven years from the date
of the Agreement to design and substantially complete construction of said facility and
use the FOSH funds for the facility.
In the event the Town determined, within the original four year period, that the facility
was not feasible, the Town then had two separate options as provided for in the
Agreement. A copy of the FOSH Agreement is attached as Exhibit A.
In 2006, FOSH and the Town entered into the Amendment to the Agreement (the
Amended FOSH Agreement). The Amended FOSH Agreement amended paragraphs 3
and 4 of the FOSH Agreement by extending the decision dates in the original
Agreement for an additional five years. The Amended FOSH Agreement is attached as
Exhibit B.
In June, 2006, a Goal Team of the Town Board reported back to the Town Board
regarding the feasibility of building and operating a Performing Arts Theater at Stanley
Park. Memo of June 10, 2006 attached hereto as Exhibit C. Subs equent to June of
2006, a non-profit corporation was formed specifically to raise funds for and operate a
performing arts facility at Stanley Park known as the “Supporters of Performing Arts,
Inc.” (SOPA). Following discussion between SOPA and the Town Board, the parties
entered into a Memorandum of Understanding dated January 28, 2008 outlining the
responsibilities and understandings between the parties regarding the location,
construction, operation of the proposed Performing Arts Facility to be located on a
portion of the Stanley Park Fairgrounds. As part of that Memorandum of
Understanding, in Paragraph C.3, the Town agreed to use the then current balance of
the funds in the Theater Fund (FOSH Monies) for construction of the Theater subject to
the terms and conditions of the Memorandum of Understanding. A copy of the
Memorandum of Understanding is attached hereto as Exhibit D.
On April 28, 2009, SOPA and the Town amended the Memorandum of Understanding.
Paragraph C.3 of the Amended Memorandum of Understanding remained the same. A
copy of this Amended Memorandum of Understanding is attached as Exhibit E.
Page 3
Some time after the execution of the Amended FOSH Agreement of May 9, 2006,
FOSH dissolved as a non-profit corporation in accordance with the applicable provisions
of the Colorado Statutes.
TOWN BOARD OPTIONS
According to the terms and conditions of the FOSH Agreement and Amended FOSH
Agreement, the Town Board has until May 9, 2011 to determine whether or not a facility
for the preservation of the performing arts is feasible and, if the Town Board determines
such feasibility, the Town shall have until May 9, 2014 to design and substantially
complete construction of said facility and use the FOSH funds for said facility. The
Amended FOSH Agreement also provides that “all the funds shall be disposed of by the
Town pursuant to this Agreement within eight (8) years of the date of this Agreement
(May 9, 2014).
In the event the Town determines on or before May 9, 2011 that a facility is not feasible,
the Town shall then have the following options:
Donate the funds to any non-profit organization whose primary focus is within the
Estes Valley and whose non-profit purpose involves the performing arts, or if the
Town determines in its sole discretion that there is no appropriate organization
within the Estes Valley which provides support for the performing arts, the Town
may donate the funds to such an organization located within the Northern
Colorado area.
Due to the fact that FOSH has been dissolved, there is no party with which the Town
can negotiate a further amendment to the FOSH Agreement and Amended FOSH
Agreement.
It is my opinion that the Town Board has the following options:
1. Make a determination that the Stanley Park Performing Arts Facility as designed
by SOPA is feasible; and based upon that determination, the Town shall have an
additional three years to participate with SOPA in the design and substantial
completion of said facility and use the FOSH funds for said facility. As part of thi s
determination, the Town Board may want to further modify or amend the current
Memorandum of Understanding with SOPA to reflect appropriate terms and
conditions with regard to this determination.
2. It is my opinion the Town Board has the option of extending the time periods in
the Amended FOSH Agreement to allow for additional time in which to make the
determination of feasibility.
Due to the fact that FOSH is no longer a legal entity and there is no legal successor in
interest to FOSH, it is my opinion that the Town does not incur any substantial legal
liability in extending the deadline in Section C of the Amended FOSH Agreement. The
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only possible affected parties would be those entities within the Estes Valley whose
purpose involves the performing arts or like organizations within the Northern Colorado
area. Since it is within the sole discretion of the Town Board as to which entity or
entities would be entitled to distribution of the Amended FOSH funds under Paragraph
3.c, it is my opinion that individual entities would not have legal recourse against the
Town for the extension of the deadline in the Amended FOSH Agreement. In rendering
this opinion, I have consulted with numerous attorneys in the Northern Colorado area
who have experience with regard to foundations and non-profit corporations. None of
these attorneys have been able to provide any legal reason why this option is not legally
available to the Town. Also, I have consulted with the Colorado Attorney General’s
Office who has informed me that the Colorado Attorney General’s Office does not have
jurisdiction over this matter pursuant to the applicable provisions of the Colorado
Statutes.
Section 7-134-105(2) C.R.S. provides that a 501(c)(3) non-profit corporation (FOSH)
may distribute, as part of its dissolution, its assets to a local government for a public
purpose. It is my opinion that FOSH met the terms and conditions of this provision of
the State Statute by distributing its assets to the Town pursuant to the terms and
conditions of the FOSH Agreements. There was no provision in the FOSH Agreements
for return of the FOSH funds to FOSH nor any successor entity. It is my opinion that
extension of the deadline in the Amended FOSH Agreement by the Town Board to allow
sufficient time to determine the feasibility of the Performing Arts Theater at Stanley Park
is consistent with the public purpose of the transfer of the FOSH funds to the Town.
The Town Board may make its decision with regard to the above options by motion.