Aug 2, 2016 - Winter Park

Transcription

WINTER PARK TOWN COUNCIL MEETING
Winter Park Town Hall - 50 Vasquez Road
Tuesday, August 2, 2016 - 5:30 p.m.
AGENDA
1.
Meeting Call To Order
a.
Pledge of Allegiance
b.
Roll Call of Council Members
2.
Town Hall Meeting
3.
Consent Agenda
a.
Approval of July 19, 2016 Meeting Minutes
4.
Action Items
a.
Special Event Permit – Hideaway Hundred
b.
Commercial Enhancement Grant – Vasquez Center
c.
Facilities Master Plan
d.
Broadband Feasibility Study
e.
Request for Funds – Plow Truck
f.
Construction and Sale Contract with Winter Park Development Co, LLC for the
Construction and Purchase of Thirty Eight (38) Housing Units
g.
Construction and Sale Contract with Winter Park Development Co, LLC for the
Construction and Purchase of a Parking Structure
h.
Maintenance Agreement with Winter Park Development Co, LLC for Maintenance of
Facilities to be Located at Sitzmark South
i.
Parking Garage Agreement with Winter Park Development Co, LLC for the Parking
Structure to be Located at Sitzmark South
j.
Site Lease Agreement Between the Town of Winter Park, Colorado, as Lessor and UMB
Bank, N.A. as Lessee
k.
Lease Purchase Agreement Between UMB Bank, N.A. as Lessor and the Town of Winter
Park, Colorado, as Lessee
l.
Ordinance 499 – An Ordinance of the Winter Park Town Council Authorizing the Financing
of Certain Public Improvements of the Town, and in Connection Therewith Authorizing
the Leasing of Certain Town Property and the Execution and Delivery by the Town of a
Site Lease, a Lease Purchase Agreement, and other Documents and Matters Relating to
Certain Parameters and Restrictions with Respect to the Financing; Authorizing Officials
of the Town to Take all Action Necessary to Carry Out the Transactions Contemplated
Hereby; Ratifying Actions Previously Taken; and Providing for Other Matters Related
Thereto, First Reading
5.
Town Manager's Report
6.
Mayor's Report
7.
Town Council Items for Discussion
Town of Winter Park Mission Statement - To Actively Develop as a Quality
Resort Community which Reflects the Beauty of Our Natural Surroundings
MINUTES
DATE:
Tuesday, July 19, 2016
MEETING:
Winter Park Town Council
PLACE:
Town Hall Council Chambers
PRESENT:
Mayor Jimmy Lahrman, Mayor Pro Tem Nick Kutrumbos, Councilors Jim Myers,
Chuck Banks, Barbara Atwater, Chris Seemann and Mike Periolat and Town
Manager Drew Nelson
OTHERS
PRESENT:
Finance Director Bill Wengert, Community Development Director James
Shockey, Police Chief Glen Trainor
Mayor Jimmy Lahrman called the meeting to order at 1:00 p.m.
Mayor Lahrman led those present in reciting the Pledge of Allegiance.
2.
Town Hall Meeting
Winter Park Resident Judy Hardardt stated that she is strongly against the proposed Serene
Wellness retail marijuana establishment at the Valley Hi location that will be considered by the
County Commissioners on August 9, 2016.
3.
3.a.
Consent Agenda
Approval of May 3, 2016 Meeting Minutes
Councilor Barbara Atwater moved and Councilor Chris Seemann seconded the motion approving
the Consent Agenda. Motion Carried: 7-0.
4.
4.a.
Action Items
Special Event Permit – Winter Park Craft Fair
Town Manager Drew Nelson stated that the Winter Park Craft Fair would take place on August
13th and 14th, 201g. Mr. Nelson stated that Staff had reviewed the application and recommended
approval.
Councilor Mike Periolat moved and Councilor Jim Myers seconded the motion approving the
Special Event Permit for the Winter Park Craft Fair. Motion Carried: 7-0
4.b.
Special Event Permit – Winter Park Pub Live Music
Town Manager Drew Nelson stated that the applicant wished to have live music throughout the
summer not to go past 1:00am. Mr. Nelson stated that Staff had reviewed the application and
recommended approval.
Councilor Chris Seemann moved and Councilor Mike Periolat seconded the motion to approve the
Special Event Permit for Winter Park Pub Live Music. Motion Carried: 7-0
Winter Park Town Council, July 19, 2016 Minutes
Page 1
4.c.
Commercial Enhancement Grant – Randi’s
Community Development Director James Shockey stated that the applicant wishes to construct a
patio and extend their outdoor seating area and is requesting a grant of $40,000. Mr. Shockey stated
that the Planning Commission and Staff had reviewed the request and recommended approval with
the conditions that the applicant finish the proposed fireplace on all sides and improved the
appearance of the fence in front of Wells Fargo.
Councilor Jim Myers moved and Councilor Chris Seemann seconded the motion to approve the
Commercial Enhancement Grant for Randi’s. Motion Carried: 7-0
4.d.
Withdrawal of Commercial Enhancement Grant – Kings Crossing Center
Community Development Director James Shockey stated that Kings Crossing Center is for sale
and will not be completing the project that the grant would be used toward.
Mayor Pro Tem Nick Kutrumbos moved and Councilor Jim Myers seconded the motion approving
the withdrawal of the Commercial Enhancement Grant from Kings Crossing Center. Motion
Carried: 7-0
4.e.
Final Plat Renewal – Serenity Trail
Community Development Director James Shockey reviewed the Final Plat Renewal and stated that
Staff recommended approval of the six month extension. Mr. Shockey stated that Mr. Ron Merrell
was present to answer any questions.
Councilor Mike Periolat moved and Councilor Chris Seemann seconded the motion to approve the
Final Plat Renewal for Serenity Trail. Motion Carried: 7-0
4.f.
Final Plat Renewal – Winter Park Station
Community Development Director James Shockey reviewed the Final Plat Extension and stated
that it is the 12th extension requested by the applicant. Mr. Shockey stated that Staff recommended
approval of the six month extension.
Councilor Mike Periolat moved and Councilor Barbara Atwater seconded the motion approving
the Final Plat Renewal for Winter Park Station. Motion Carried: 7-0
4.g.
Hideaway Park Stage Contract and Guaranteed Maximum Price – Big Valley Construction
Town Manager Drew Nelson reviewed the contract and stated that the drop dead date for the project
would be June 17, 2017. Mr. Nelson stated that the guaranteed maximum price for the project
would be $3,338,314.00 and stated that Staff had reviewed the contract and the guaranteed
maximum price and recommended approval.
Councilor Jim Myers moved and Mayor Pro Tem Nick Kutrumbos seconded the motion approving
the Hideaway Park Stage Contract and Guaranteed Maximum Price. Motion Carried: 7-0
4.h.
Transit Marketing Firm Selection
Town Manager Drew Nelson stated that the Council had seen three proposals earlier in the day
from companies wishing to provide Transit Marketing Services to the Town. Mr. Nelson stated that
all three were good companies.
Councilor Mike Periolat moved and Councilor Chris Seemann seconded the motion to select Studio
Six as the Town’s Transit Marketing Firm. Motion Carried: 6-1
5.
Progress Reports
Page 2
5.a.
Fraser Valley Recreation – Scott Ledin
Mr. Scott Ledin stated that it has been a very busy year for the Rec District. Mr. Ledin stated that
they anticipated their Master Plan would be finished by the end of the year. Mr. Ledin thanked the
Council for their help with transit, and stated that there were 60+ baseball games over the weekend.
Mr. Ledin stated that the new playground has been very busy and that the Rec District had received
a Starburst Award for the project.
5.b.
Grand County Water & Sanitation District #1 – Bruce Hutchins
Not Present.
5.c.
Winter Park Water & Sanitation District – Mike Wageck
Not Present.
5.d.
Winter Park Resort – Gary DeFrange
Winter Park Resort President Gary DeFrange stated that it had been a very busy season at the Resort
and that there are plans to remodel the Mary Jane base area for next ski season. Mr. DeFrange stated
that the Resort is cutting small trees in order to open trails earlier in the season. Mr. DeFrange stated
that the train platform project would be completed for this season.
5.e.
Hideaway Junction – Mike Periolat
Mr. Mike Periolat stated that an applicant would be chosen for the available Hideaway Junction
home in the next couple weeks.
5.f.
Transit Advisory Committee – Chuck Banks
Transit Advisory Committee Member Chuck Banks stated that the TAC discussed the Towns of
Winter Park and Fraser working out an Intergovernmental Agreement as soon as possible. Town
Manager Drew Nelson reviewed the purchasing process for new buses and stated that the Town is
about 16-18 months out from receiving the new buses.
5.g.
Chamber of Commerce – Catherine Ross
Chamber of Commerce Director Catherine Ross stated that the Chamber would have a booth at the
upcoming Divide Festival, and that Epic would be offering a bike check for festivalgoers. Mrs.
Ross stated that the Alpine Art Affair would be taking place over the weekend, and that Colorado
Freeride Festival and SolShine would take place on the following weekends.
6.
6.a.
Town Manager’s Report
Letter of Objection – Serene Wellness V LLC
Town Manager Drew Nelson stated that a Public Hearing would be held for the proposed Serene
Wellness retail marijuana establishment located at Valley Hi on August 9, 2016 at 1:30pm at the
County. Mr. Nelson stated that Staff had drafted a letter for the Council to sign and submit to the
County Commissioners expressing a strong objection to the application. Winter Park Resort
President Gary DeFrange stated that the Resort was of the same opinion.
6.b.
Issues with Dogs at Hideaway Park Special Events
Mr. Nelson stated that there had been multiple issues related to dogs at Hideaway Park events
recently. After some discussion, Mayor Lahrman directed Staff to come back with some more
information, suggestions and feedback from Animal Control.
6.c.
Fire Restrictions and Ban of Fireworks – Grand County Board of Commissioners
Page 3
Mr. Nelson stated that when the County bans fires and fireworks, the ban is automatically applied
to all Towns in the County. Mr. Nelson stated that the Town had the option to opt out, but would
remain under the County Fire Restrictions for the time being.
7.
Mayor’s Report
Mayor Lahrman stated that he had recently met with Mayor Hancock, who is very excited for the
planned rail connection. Mr. Lahrman stated that the City of Denver had donated $100,000 toward
the platform project at Winter Park Resort.
8.
Town Council Items for Discussion
Nothing to Report.
Councilor Barbara Atwater moved and Councilor Chris Seemann seconded the motion to go into Executive
Session in accordance with C.R.S. Title 24, Section 6, Subsection 402-4(a).
8.
8.a.
Executive Session
To Discuss Real and Personal Property in conformance with C.R.S. Title 24, Section 6,
Subsection 402-4(a) Regarding the Purchase, Acquisition, Lease, Transfer, or Sale of
Property Interests Related to Sitzmark South
Upon conclusion of the discussion, the motion was made by Councilor Jim Myers and seconded by
Councilor Barbara Atwater and unanimously carried to return to Regular Session. Those in attendance at
that time were: Mayor Jimmy Lahrman, Mayor Pro Tem Nick Kutrumbos, Councilors Jim Myers, Barbara
Atwater, Chuck Banks, Chris Seemann, and Mike Periolat, Town Manager Drew Nelson, Finance Director
Bill Wengert, and Community Development Director James Shockey.
There being no further business to discuss, upon a motion regularly adopted, the meeting was adjourned at
4:00 p.m.
The next scheduled meeting of the Town Council will be Tuesday, August 2, 2016 at 5:30 p.m.
Taryn M. Martin, Town Clerk
Page 4
MEMORANDUM
To:
From:
Date:
Re:
Town Council
Gerry Vernon
07/29/2016
Facilities Master Plan Bid Award
BACKGROUND
As the Town of Winter Park continues to expand services to its citizens, the need for a long-term facilities
plan is critical in the achievement of the organization’s mission and vision. This plan is known as a Facilities
Master Plan and it most generally contains two components – the first being an in-depth analysis of existing
facilities, and the second is the development of an achievable and affordable financial plan to repurpose,
rehabilitate, or build new facilities to meet the existing and future demands for services.
Staff conducted a Request for Proposals (RFP) process to obtain the necessary planning services to
develop a comprehensive facilities master plan for town-owned and leased facilities. The objective of the
RFP was to select a firm or consultant to guide the Town in the development of a plan that will serve as a
framework for infrastructure and capital improvement planning.
ANALYSIS
Proposals were received from the following eight firms:
Design Edge - Denver, CO
F&D International – Boulder, CO
Jorgensen Facilities Services – Westminster, CO
Makers Architecture – Seattle, WA
Page, Sutherland, Page, Inc. - Denver, CO
Stan Clauson and Associates, Inc. (SCA) – Aspen, CO
SGM – Glenwood Springs, CO
The Abo Group – Lakewood, CO
A Selection Committee comprised of Drew Nelson, Bill Wengert, Russ Chameroy and Gerry Vernon
reviewed and rated each proposal on a point system. Points were tabulated and the three top scoring firms
were ranked. In order, those firms were SGM, F&D International, and SCA. Utilizing the standard, request
for qualifications process for professional services, the Committee interviewed, detailed the scope of work
and negotiated a cost for the master plan with the highest ranking firm.
That firm was SGM based out of Glenwood Springs, Colorado. As you can see in their proposal, SGM put
together a team that included experts in transportation, public works, and other governmental structures.
In case SGM is not awarded the work, Staff will negotiate with the next highest ranking firm.
For the scope of services requested in the RFP, SGM estimated a base fee of $77,257.00. SGM also
proposed some additional services that would provide additional benefit given our priorities. Instead of
trying to guess which ones are the most beneficial, staff suggests adding a 15% contingency to the base
fee to provide flexibility for additional work as building conditions are assessed. This would make the not
to exceed amount at $88,850.00. An estimated cost of $70,000.00 was budgeted for the 2016 master
plan.
RECOMMENDATION
Staff recommends the Town Council approve the selection of SGM to conduct the Facilities Master Plan
and authorize the Mayor to enter into a professional services agreement for an amount not to exceed
$88,850.00 by adopting the following resolution:
I move to accept the proposal received by SGM for the development of a Facilities Master Plan in the
amount of $88,850.00 and authorize the Mayor to enter into a Professional Services Agreement for the
development of a Master Facilities Plan for the Town of Winter Park.
Alternative Motion
In the event the Town Council wishes to deny award of the proposal to GSM, staff recommends the Town
Council make the following motion:
I move to deny the award of the Facilities Master Plan to GSM, Glenwood Springs for the following findings
of fact:
_________
Res po ns e
to
R eq u est
for
Proposal
F ac i l iti es M ast e r P l a n n i n g S e rv i c es
June 24, 2016
Town of Winter Park
Facilities Master Planning Services
Table of Contents
Tab 1 - Letter of Interest......................................................................................................................... 1
Tab 2 - Project Approach to Master Plan ............................................................................................... 1
Tab 3 - Planning Team Key Personnel................................................................................................... 7
Tab 4 – Schedule ................................................................................................................................. 10
Tab 5 – Relevant Experience & References......................................................................................... 11
Tab 6 – Fee Structure .......................................................................................................................... 13
Appendix
Resumes
1
Tab
L etter
of
I ntere st
Town of Winter Park
June 24, 2016
Delivery via email [email protected]
Gerry Vernon, Capital Projects & Parks Manager
Town of Winter Park
50 Vasquez Road
Winter Park, CO 80482
RE:
FACILITIES MASTER PLANNING SERVICES
Dear Mr. Gerry Vernon:
Thank you for the opportunity to propose our services for the Facilities Master Planning Services RFP.
SGM and the team we have assembled specialize in assisting our municipal clients in planning,
designing, engineering, and optimizing their facilities. We have put together a proposal that
demonstrates how we will work in partnership with you to provide a thoughtful, useful, and a truly
strategic Facilities Master Plan.
You will find that we have assembled a team of specifically-selected experts with subject matter
expertise in areas most important to the Town of Winter Park (Town). This team brings the following
expertise:
Facilities. Transit, public works, municipal, parking, and more – we bring expertise in all
aspects of facility assessment, design & engineering, including expertise specific to the Town’s
unique needs. This will translate into appropriate solutions for Winter Park’s high mountain
resort challenges.
Master Planning. The best master plans are dynamic, facilitate the decision-making process,
and continue to grow with the organization. Our ideas are innovative yet practical, our analysis
is thoughtful and thorough, and our deliverables are detailed and interactive.
Municipal. The public process, public access, and an unrelenting need to deliver a high level of
service sometimes 24/7/365 requires patience, an understanding of true lifecycle design, and a
continued dedication to seeing the project through to completion. We bring a solid and
longstanding reputation in Western Colorado for serving municipalities in all aspects of planning,
engineering, and infrastructure management.
Organizational Background and Overview
Firm Profiles
SGM was founded in 1986. For 30 years, SGM employees have lived, worked, and
raised families in Western Colorado communities we have helped build. As a result,
SGM’s services are delivered with unparalleled authenticity and pride with attention to
details. The resulting success of our clients has supported SGM’s growth to over 90
employees – the largest full-service engineering, surveying, and consulting firm based in
Western Colorado. This success has been made possible by SGM’s commitment to
quality service and long-term client relationships. In addition to our Glenwood Springs
office, we also have offices in Grand Junction, Gunnison, Durango, Aspen, Salida, and
Meeker to provide hands-on, rapid response service to our clients. As we’ve grown, so has
our expertise – SGM has specialists in the following technical and engineering fields all
under the SGM roof:
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Town of Winter Park
Municipal Public Works, Roads, Streets, Trails, Highways and
Bridges
Civil Engineering
Municipal Stormwater and Drainage
Municipal Water Supply, Treatment, Conveyance and Storage
Floodplain Management
Municipal Asset Management
Wastewater Treatment and Conveyance
Facility and Energy Management
Structural Design
Mechanical, Electrical & Plumbing Engineering and
Commissioning
Land Surveying and GIS Mapping
Construction Inspection and Administration
Hunt Walker is a retired Public Works Director from the Town of Snowmass Village with over 32
years of experience. In his tenure, Hunt was not only responsible for managing the Public Works
department, but he developed a new Public Works/Transit Facility, managed transit operations
for the Town, and has consulted with SGM on similar master planning projects.
Munn Architecture (MA) is a Grand County-based full-service professional architectural firm that
opened in 2007 and has a current staff of seven. With a proven track record of working directly
with local municipalities, developers, nonprofits, recreation districts, and landowners, they deliver
focused architectural projects tailored to each of their client’s needs and vision. MA believes architectural
programming, space operations analysis and design are interdependent processes.
RNL is an international architecture, interiors, landscape, and planning firm with more than 130
professionals in offices located in Denver and around the world. RNL has extensive experience in
the planning and design of transit centers and stations and has worked on over a dozen in Aspen
and Breckenridge, Jackson, Park City, Green Bay, Billings, and Los Angeles. RNL provides
comprehensive services, including space needs analysis, development of space standards, operational
and functional analyses of space needs, facilities and site master planning, as well as cost estimating and
budget planning.
Walker Restoration Consultants was founded by Walker Parking Consultants,
the recognized leader in parking consulting, to more effectively provide
consulting and engineering services. It helps its clients extend the service life of
their built assets by using a broad array of state-of-the-art restoration and preservation strategies.
Through my diverse experiences with municipalities throughout Western Colorado, I am keenly aware of
the need to plan for the future and optimize the organization. As the current Acting Mayor in Carbondale, a
former employee for the City of Aspen, and a consultant who has worked with over 40 Western Slope
municipalities on facilities, I also understand the challenges of growth in Western Colorado and the impacts
to municipalities. For these reasons, I am very excited to have the opportunity to be involved in this project
and present to you our proposal. I look forward to hearing from you soon so we can move this project
forward. Should you have any questions, please contact me directly at: 970.384.9065 or via email at:
[email protected]. Thank you for your time.
Sincerely,
SGM
Dan Richardson, CEM, LEED AP
Project Manager & Principal-in-Charge
2
Tab
P roject A pproach
to M aster P lan
Town of Winter Park
Project Approach to Master Plan
Our team’s understanding of the Town and Project
We understand the Town of Winter Park (Town) to be a year-round
mountain destination resort in the heart of the mountains. As such it
has seen over 50% population growth since 2000, and expects
continued growth in the coming years. In addition, the Town has
begun assuming operations of a year-round public transportation
system that will require a new Transit Facility. As it looks out ten
years, the Town would like to proactively plan for this growth so
that it can optimize its facility infrastructure that makes it all work.
Below is an abbreviated list of elements that we feel will be
important to consider throughout the project or are otherwise
noteworthy.
•
Improving public transit services is a ‘2016 Organizational Goal & Priority’ and the
Town has recently hired a Transit Manager. In May of 2015, the Town approved a
Memorandum of Understanding (MOU) with Winter Park Resort to transition the
existing private transit service to a public, year-round
service.
•
Currently First Transit operates the system out of the
Winter Park Resort Facility, located just north of the Old
Town area. The current facility is a cement block
structure on approximately 3-acres and is roughly 3,500
sf. It includes the operations center with three small
offices and maintenance shop with two service bays, a
bus wash bay and a small parts room. Buses are stored outside, which compromises operations,
and in general the current facility is undersized and ill
equipped.
•
A new Transit Facility has been planned for
maintenance and operations. The future site is still to
be determined and Grand County is interested in colocating. Ideally the new facility will have 5-8 acres of
land and at least 9,000 sf. The Master Plan should
provide thorough analysis and design guidance to
facilitate the where, when, what, how big, etc.
decisions.
•
The Public Works facility is reportedly undersized, beyond its useful life and not in an ideal location.
Possible co-location with CDOT is being considered. The Master Plan should address how to
optimize facilities and therefore operations in the short-term, while providing specific guidance on
an optimal facility over the long-tem.
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Town of Winter Park
•
We understand the Town Hall parking garage was built in
1984 and restored in 2008. The Master Plan should identify
ways to optimize this structure for the long-term.
•
Winter Park’s Town Hall is named after Nick Teverbaugh,
who was mayor of Winter Park for 26 years, from 1982 2008. A town hall roof replacement of $80,000 was budgeted
in 2012, followed by talks of a reconfiguration of the town hall
design in 2015 - 2016 in order to house the police department. A
small reconfiguration took place in 2016 to accommodate new staff
members.
•
The Town’s Police Department operates in a shopping center which is
reported to work reasonably well, with the exception of moving
detainees. The Master Plan should confirm if the current location is
viable for the ten year planning period, and if so what modifications
are needed. If not, what parameters should be considered for an
alternative location.
•
The Chamber Building has seen many uses including a
newspaper office, dental office and even served as the Town’s
water and sewer building. The building had an addition and
remodel completed in 1995 and another minor remodel in 2015,
which included much needed HVAC repairs. The building is
reported to have structural deficiencies and space configuration
constraints. Because the Chamber views this location as very
good, the Master Plan should identify how to optimize the
existing space for the ten-year planning horizon.
•
The Town of Winter Park received accolades from the Great Outdoors Colorado 2014 Starburst
Award for Excellence in Use of Lottery Funds on the recent Wolf Park Enhancement Project. The
town used funds to implement the recommendations of the Wolf Park Recreation Plan created in
2010. A grant was submitted to GOCO with a town cash match. A pavilion, gazebo, restrooms,
playground, trails, and ball courts make this park a wonderful quality-of-life amenity in Winter Park.
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Town of Winter Park
•
The Hideaway Park is both a park and events space. It has a
new permanent, year-round stage designed and ready to be
funded. Called a “gem” in the heart of Winter Park, Hideaway
Park in downtown Winter Park along Highway 40 has been a
successful and ongoing improvement project for the town. The
park’s amphitheater is a grassy hillside that can host up to
5,000 people during concerts held in the park nearly every
weekend in the summertime. The new stage was part of the
original vision for the park, which the town manager referred to
as the “final capstone on the park’s development.” The
amphitheater becomes a free winter sledding hill during
the cold months. A climbing wall, skate park restroom
facilities, picnic pavilion, and playground round out this
wonderful downtown attraction.
To proactively solve these challenges, the Town is pursuing a
Facilities Master Plan.
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Town of Winter Park
Project Approach
We understand the objective of this project is to guide the
Town in the development of a Facilities Master Plan
process that can serve as a framework for future
infrastructure and capital improvement planning. Therefore
the three core strategies that we have developed to guide
our project approach are as follows:
•
•
•
Conduct thoughtful and thorough interviews with
staff, gather complete information, and perform
careful facility inventories and condition
assessments so that a robust facilities profile can
be created to inform the master plan and the
subsequent recommendations. The data will be
gathered in a spreadsheet for future integration into
a GIS-based ‘story map’.
Perform comprehensive analysis that carefully
considers innovative space standards including
office sharing and integration, space and
environmental efficiency, and occupant health and
wellness. Integrate ‘innovation’ analysis with a
space needs analysis that incorporates staff input,
comparisons with similar facilities from other towns,
and comparisons with industry standards.
Develop thoughtful, effective yet practical
recommendations that allow the Town to
effectively plan and prioritize future capital
improvement projects. The recommendations will
reflect the goals identified in our team’s meeting
with the Town’s leadership team and will include
site and facility conceptual design alternatives,
preliminary cost estimates, and an implementation
schedule. The final plan is envisioned to include a
GIS-based ‘story map’ that includes all relevant
information, can be easily accessed from the web
(if desired) and truly function as a “living document”.
2015 City of Victor ‘Story Map’ Example
This story map contains two parts: a scroll bar
section on the left, and the corresponding
presentation panel on the right. As you scroll
through the ‘story’, the right panel will automatically
adjust to display a new photo, map, or video.
Overview Section
In this picture, the left scroll bar contains some overview
information of the town, buildings, and purpose of the map. An
overview picture of the town can be shown on the large
presentation area to the right.
Buildings Section
In this picture, all historical buildings are listed by picture on the
left. Maps of each of the buildings are displayed on the right
panel. Each building picture is linked to a point on the map;
clicking on the building picture will automatically zoom to the
building of interest and pull up a pop-up with details of that
building.
Building Detail
Phase 1
Objectives as outlined in the RFP:
•
Document current facilities inventory and existing
condition
•
Develop space standards as baseline for planning
and future planning updates
•
Conduct a Space Needs Analysis
This can contain any information the client would like to display,
for example a picture, map, video, PDF documents, etc... For the
City of Victor, we have shown the current building name, the
historical building name, and a PDF of the building inspection
report. Clicking on the building image in the pop-up will also pull
up a larger image of the building.
For more information, please contact: Becky
Parham, City of Victor’s Main St. Program Manager,
719.494.9789, [email protected]
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Town of Winter Park
Tasks proposed by the SGM team: The SGM Team will…
1. Request all applicable information on facilities such as: drawings, recently completed and planned
facility projects, etc.; population growth projections; current and future service levels and staffing
needs; historic facility O&M costs; and potential development site information for town facilities,
prior to the Leadership Team kick-off meeting.
2. Facilitate a Leadership Team kick-off meeting to provide an overview of the master planning
process and guide the Town through a mission, vision and goal setting process. This meeting will
include an agenda sent out in advance to aid in productive dialogue, structured facilitation, and
follow up notes to support common agreement.
3. Conduct staff interviews and facility tours with applicable departments to inquire about what’s
working, what’s not, and why. SGM will then inquire about future wants and needs and how they
should be prioritized.
4. Conduct condition assessments for all facilities. Assessments can include durability (including roof
and building envelope); structural integrity; mechanical, electrical and plumbing integrity and
capacity for growth; ADA accessibility; and/or any combination as directed by the Town. In addition
to condition ratings and/or projected service life, assessments can also include repair and
replacement budget and schedules; equipment nameplate cataloging; GPS of critical components,
GIS mapping, and any other aspect requested.
5. Research and develop applicable space standards as defined in the RFP. We will explore
innovative space standards including office sharing and integration of services, space and
environmental efficiency, and occupant health and wellness.
6. Create a facility profile from the above tasks and review findings with Town staff to confirm
accuracy. This information will form the Basis of Analysis.
7. Conduct a Space Needs Analysis that includes developed space standards and incorporates staff
input on future growth, comparisons with similar facilities from other towns and the decades of
combined hands-on experience of SGM’s Team with respect to other facilities and industry
standards. The analysis will include a Gap Analysis that clearly identifies and quantifies existing
surplus and space needs in the future.
Phase 2
Objectives as outlined in the RFP:
•
•
Develop Options Analysis
Strategic Facilities Master Plan Recommendations
Tasks proposed by the SGM team: The SGM Team will…
1. Develop an Options Analysis designed to facilitate the decision-making process for the facilities
and/or sites prioritized by the Leadership Team. This analysis will include a full description of the
proposed alternatives and related projects; a cost/benefit analysis including a pros and cons matrix;
and recommendations for space utilization.
2. Facilitate a second Leadership Team meeting to present the facility profiles, Space Needs Analysis,
and the Options Analysis. The purpose of this meeting is to receive direction to guide the concept
plans for the 10-year capital plan.
3. Develop concept plans, based on previous tasks and Leadership Team input, for each expansion,
renovation and/or new facility project. Concept plans will be produced in either 2D or 3D depending
p|5
Town of Winter Park
on what the project warrants. Concept plans will include estimates of probable cost and a
recommended schedule for project development.
4. Facilitate a third Leadership Team meeting to present the concept plans, cost estimates and
schedule.
Additional Options – Facilities-specific Asset Management Services
•
GIS intelligent mapping – full implementation or assisting/coaching staff. Can integrate basic
•
maintenance schedules into GIS mapping for streamlined maintenance and tracking.
Repair & Replacement Schedule/Budget – asset-specific recommendations and cost estimates
•
•
for repair, replacement, and annual O&M.
Capital Improvement Plan – developing, reviewing, updating, implementing.
Financial Analysis – Financial Feasibility Study, Revenue and Expense Analysis, Lifecycle Cost
•
Analysis, Multi-year Budgets, etc.
Operations & Maintenance (O&M) Plan – including facilities, utility systems and more.
•
•
Commissioning – including HVAC and electrical systems.
Decision support assistance – additional analysis, graphics, presentations or communication.
p|6
3
Tab
P lann i ng T eam
K ey P ersonnel
Town of Winter Park
Planning Team Key Personnel
Team Personnel and Technical Expertise
As stated above, SGM has assembled a team of highly experienced professionals that are uniquely
qualified to successfully deliver this project. Below is a summary of credentials and qualifications. Brief
biosketches are presented below with full resumes located in the Appendix.
Project Manager – Primary Point of Contact
Education: BS Environmental Design in Architecture; University of Colorado
Years of Experience: 22
Years of Experience with SGM: 10
Prof. License: N/A
Telephone: 970.384.9065
Location: Glenwood Springs office
Dan Richardson, CEM serves as SGM’s Senior Consultant and Consulting Services Sector
Leader which includes municipal engineering, GIS, asset management,
mechanical/electrical/plumbing engineering (MEP), and client service management. Dan has over 22 years
of experience focused on asset management, sustainability, and energy and project management in
Western Colorado. His extensive facility experience includes consulting, design, budgeting, assessment
and efficient building technologies. Dan is SGM’s lead asset/facility management consultant. His project
experience includes consulting for over 40 local governmental agencies and many private sector clients on
various elements of asset and facility management. Dan has also consulted for the Colorado Energy Office
(CEO) on general clean energy projects and served as the Owner’s Rep for RFTA on a CNG Facility
Upgrade project at its primary bus maintenance facility. In addition to his consulting experience, Dan is
currently Acting Mayor for the Town of Carbondale. He was also elected to the Glenwood Springs City
p|7
Town of Winter Park
Council, was appointed Chairman of the Roaring Fork Transportation Authority (RFTA) Board of Directors
and served on the Glenwood Springs Chamber Resort Association (GSCRA), and has served in several
other board roles.
Public Works Consultant
Hunt Walker
Education: University of Denver - BA Mass Communications
Prof. License: N/A
Telephone: 970.274.8043
Location: Glenwood Springs office
Hunt Walker will serve as the Public Works Consultant. As the former Public Works and
Transportation Director for the Town of Snowmass Village, Hunt brings over 33 years of
experience to this project. In this role he directed the oversight of an 18-person department, and
administered and managed the Road Mill Levy Fund and the Town’s Capital Improvement Program. While
with the Town of Snowmass Village, he assisted in the development of a new Public Works Facility and
had oversight of the Town’s transit system. Hunt also assisted the division supervisors in the development
of their spring and summer work plan and schedule. While in this position he also performed the annual
assessment of the Town’s street network.
Principal Architect
J. Scott Munn, AIA
Education: BA Architecture and Urban Planning; University of Washington
Years of Experience with Munn: 9
Prof. License: AIA
Telephone: 970.887.9366
Location: Granby office
Scott Munn, AIA is a Colorado native with ties to Grand County extending longer than 60
years. A graduate of architecture from the University of Washington, Scott achieved greatness
in 1994 as World Champion in rowing competing in Tampere, Finland, preceded by a fourth place in the
1992 Olympics in Barcelona, Spain. He now channels his passion for water in the sport of competitive
sailing. Munn’s architectural career launched in Vail and continued to Grand County in 2000. As founder of
Munn Architecture, LLC, in 2007, he has brought together a team of talented individuals who share his
unique perspective for innovative architecture and how it relates to the mountain vernacular of historic
ranches and pioneer settlements.
Project Architect
Reed M. Good, AIA, NCARB, LEED AP BD+C
Education: BA Art and Design; Iowa State University
Years of Experience with Munn: <1
Prof. License: AIA, NCARB
Telephone: 970.887.9366
Location: Granby office
As a recent transplant from Denver, Reed M. Good joined Munn Architecture in February
2016 and brings extensive experience working with a variety of civic, administration offices,
commercial, retail, restaurant and residential projects from around the country. Reed brings 10-plus years
p|8
Town of Winter Park
of project experience in a variety of markets including civic, administration offices, commercial, retail,
restaurants, and residential. A valuable design and BIM production resource, Reed strives to explore the
creative opportunities of each project and develops client-responsive solutions which seek to harmonize
context, sustainability and artistic expression.
Transit Architect
Merlin Maley, AIA, LEED AP BD+C
Education: MA Architecture and Landscape Architecture; University of Colorado
Years of Experience with RNL: 12
Prof. License: AIA
Telephone: 303.295.1717
Location: Denver office
Merlin Maley, AIA, LEED AP BD+C is RNL’s Western Region Transit Director and an
Associate. For the past 11 years, Merlin has dedicated his career to the transportation and
public sector industry, working on numerous maintenance and operations facilities, multi-modal stations
and facility master plans across the United States. Merlin is a Leadership APTA class of 2013 graduate.
Over the course of his 19 year career, Merlin has experience in the field of architecture, landscape design
and green construction, serving as a project coordinator, project architect, project manager, project
principal, designer and sustainability champion on many projects. His bus administration, maintenance and
operations project for Transpo in South Bend, Indiana achieved LEED Platinum certification by the Green
Building Certification Institute. This was the first transit maintenance and operations facility in the country to
achieve LEED’s highest level of certification. Sustainable cities that are built around great transit systems
are his passion.
Project Manager - Restoration
Ray Charbonneau
Education: Business Administration; State University of
New York at Oswego
Years of Experience with Walker Restoration
Consultants: 16
Prof. License: N/A
Telephone: 303.694.6622
Location: Greenwood Village office
Ray Charbonneau is a Project Manager in Walker’s Denver office. In 2000 Ray joined Walker in with over
20 years of construction industry experience. His background in the restoration industry encompasses 20
years of Project Management and 25 years in the concrete and waterproofing industry as a Project
Manager and Superintendent. His experience in construction is varied from construction of new commercial
buildings to restoration of parking structures, plaza decks and professional sport stadiums. Ray has
extensive field experience with expansion joints, concrete overlays, traffic coatings, hot and cold
waterproofing systems, post tensioning, paver systems, concrete repair materials, and has held installer
certificates from numerous product manufactures for their systems. He is formally trained in project
management and construction scheduling. Ray’s responsibilities as Project Manager included project
budgeting, scheduling, development of construction documents, and construction administration.
p|9
4
Tab
S chedule
Town of Winter Park
Schedule
The following is a preliminary schedule starting after the Notice to Proceed. While it is very difficult to
project specific availability of each team member at this point, estimated availability is provided below in an
effort to demonstrate our capacity to complete the project. Our team also includes additional available
technical resources, comprised of our team’s collective full engineering and architectural consulting
including: architects, planners, design engineers, field engineers, CAD draft persons, GIS technicians,
surveyors, and support staff.
Weekly Timeline
#
1.1
1.2
1.3
1.4
1.5
1.6
1.7
2.1
2.2
2.3
2.4
Task description
Phase 1
Preliminary research
Kick-off meeting
Staff interviews
Condition assessments
Space standards
Facility profile
Space Needs Analysis
Phase 2
Options Analysis
Progress meeting
Concept plans
Final presentation
Projected availability
Dan Richardson
Scott Munn
Merlin Maley
Reed Good
Ray Charbonneau
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Approximately 40% availability through the project
p | 10
5
Tab
R elevant E xperi ence
& R eferences
Town of Winter Park
Relevant Experience & References
Relevant Projects (last 3 years)
Client
Summit County
Scott Vargo, Assistant
County Manager
970.453.3404
[email protected]
Town of Silverthorne
Bill Linfield, Public Works Director
970.262.7341
[email protected]
Summit County
Scott Vargo, Assistant
County Manager
970.453.3404
[email protected]
Ouray County
Connie Hunt, County Administrator
970.325.7263
[email protected]
Town of Fraser
Jeff Durbin, Town
Manager
970.726.5491 x 202
[email protected]
Town of Winter Park
Reference no longer available
Town of Jackson
Larry Pardee, Public
Works Director
307.734.3568
[email protected]
Project Description
Developed a master plan for selected County departments and
functions within the Summit County Commons Campus. This master
plan is the result of the interactive, collaborative process that followed
between key Summit County representatives, RNL Design,
Maintenance Design Group and Martin/Martin. The first phase of the
project was programming, which involved defining space needs for
County functions. In the second phase, these space needs
requirements were used to develop the conceptual facilities master
plan. A more detailed programming analysis and master plan was
generated for the Light Industrial Campus, and a higher level analysis
and plan was developed for the County Services Campus, Medical
Campus, and other parcels.
Successfully completed a Long Range Strategic Plan for Public Works,
which included a Facilities Master Plan for Public Works Facilities.
Project included comparative analysis of proposed and existing Public
Works site and facility. SGM teamed with Hunt Walker
on this project.
RNL/MDG with Adolfson and Peterson were retained as the
Design/Bid/Build team for the new Summit County Fleet Maintenance,
Wash Building and Fueling Island additions to the County’s existing
industrial site. The site houses the Summit Stage, CDOT, Search and
Rescue, and County Vehicle Maintenance Operations. The new design
incorporated sustainable site and building design strategies to increase
operational efficiency and reduce long term operating costs.
Nearing completion on the Ouray County Master Plan for its Ridgway
site. Project involves master planning the current Road & Bridge site to
accommodate a new EMS facility, a new County Administration facility,
upgraded Road & Bridge facility and operations area, and potential
additional uses. Master Plan includes programming, conceptual design
of facilities, roads, and utilities. Master Plan will be in
GIS. SGM teamed with Hunt Walker on this project.
Served as Project Architect and provided space & operations
programming for the Town of Fraser’s 20,000 sf Public Works Facility.
Design and parking consulting, and eventual restoration services for the
Winter Park Transit Center and Parking Garage originally built in 1984.
Hunt Walker project. Reference no longer available.
RNL, along with partners Maintenance Design Group and Jorgensen
Associates, LLC designed a new bus operations and maintenance
facility for Southern Teton Area Rapid Transit (START). The new facility
is expected to be LEED Silver certified and will provide administrative
offices, interior bus storage for the fleet of 36 buses, a nine-bay fleet
maintenance facility, in-line fueling and drive-thru bus wash at the entry
to the bus storage area, seven units of employee housing.
p | 11
Town of Winter Park
Town of Snowmass Village
Anne Martens, PW Director
970.922.2310
[email protected]
Condition Assessment and comprehensive analysis of existing municipal
facilities, including Public Works Shop. Analysis included building
condition, remaining useful life, recommended improvements and cost
estimates. Developed a Repair and Replacement Budget/Schedule that
included a cataloging of all assets; comments and costs for repair,
replacement and maintenance and a 20 year budget broken down by
each applicable Town fund. SGM teamed with Hunt
Walker on this project.
Town of Mancos
Heather Alvarez, Town Clerk
970.533.7725
[email protected]
Capital Improvement Plan for all town infrastructure, including asset
inventory, condition assessment, repair and replacement budget and
schedule, narrative report and GIS mapping of facilities, parks, water,
sewer, stormwater, and streets.
Town of Granby
Wally Baird, Town Administrator
970.887.2501
[email protected]
Doug Bellatty, Water/WW Super.
970.531.9246
[email protected]
SGM has served as the Town of Granby’s Engineer of Record since
1986, for which we have also provided utility master
plans and many other services.
p | 12
6
Tab
F ee S tructure
Town of Winter Park
Fee Structure
The following fee structure is provided as requested in the RFP. Please note that additional support staff
will be used as needed.
Fee Structure
Team Member
Project Manager
Hunt Walker
Public Works Consultant
Scott Munn, AIA
Principal Architect
Reed Good, AIA, NCARB, LEED AP BD+C
Project Architect
Merlin Maley, AIA, LEED AP BD+C
Transit Architect
Ray Charbonneau
Project Manager - Restoration
Project Phase
Hourly Rate
$143
105
127
116
210
210
Estimated hours
Phase 1
255
Phase 2
315
Please Note: we anticipate a blended hourly
billing rate of $120.
Certificate of Insurance
Please also consider this statement as affirmation that the Town’s standard insurance requirements as
defined in the standard professional services contract will be met by SGM and all subconsultants.
p | 13
Appendix
R esumes
General Background
Dan is SGM’s Senior Consultant and Consulting Services Sector Leader which includes
municipal engineering, GIS, asset management, mechanical/electrical/ plumbing
engineering (MEP), and client service management. He has over 20 years of experience
focused on asset management, sustainability, and energy and project management in
Western Colorado.
Senior Consultant
Consulting Services Sector
Leader
Education
Bachelor of Environmental
Design in Architecture,
University of Colorado
Boulder, 1994
Professional Affiliations
Certified Energy Manager
Association of Energy
Engineers
American Public Works
Association
Leadership in Energy and
Environmental Design
Accredited Professional
(LEED AP)
In addition to his consulting experience, Dan is currently Acting Mayor for the Town of
Carbondale and serves on the Community Office for Resource Efficiency (CORE) Board
of Directors. He was elected to the Glenwood Springs City Council, appointed Chairman
of the Roaring Fork Transportation Authority (RFTA) Board of Directors and Chairman of
the City of Glenwood’s Geothermal Task Force; he has served on the Glenwood Springs
Chamber Resort Association (GSCRA), the Clean Energy Economy for the Region
(CLEER) Board of Directors, and has served as President and Treasurer of the Board of
Trustees for the Waldorf School on the Roaring Fork in Carbondale.
Dan’s public speaking engagements include lead trainer for the EPA’s energy
management training for water and wastewater utilities, Energy Management Training
for CEO, a keynote address for Gunnison County’s 2008 Energy Summit, Solar 2006,
Colorado Municipal League’s 2006 and 2007 annual conferences, Urban Land Institute’s
2007 Governor’s Retreat, Colorado Association of Ski Towns, and various presentations
across Colorado, Utah, Idaho, Minnesota, and Massachusetts. In 2010, Dan was selected
by Colorado Biz magazine as one of Colorado’s ‘Top 25 Influential Young Professionals.’
Summary of Experience
Asset Management. Dan’s project experience includes consulting for local
governments and private sector clients on various elements of asset management.
Project responsibilities include assessing clients’ needs and goals and developing the
specific asset management approach. Specific tasks include project management,
facility assessment, data analysis, modeling, and communication.
High Performance Facilities and Systems. Project experience includes design,
assessment, project management, project development and general consulting on
many commercial/municipal/residential facilities and infrastructure systems in Western
Colorado. As a consultant to CEO’s Energy Performance Contracting Program, Dan
has consulted on many municipal/county projects around the State of Colorado. His
experience also includes project feasibility, management, and/or development of
alternative energy systems including alternative fueled fleets, solar, hydro, geothermal,
and biomass.
Public Policy & Programs. Dan’s most recent project experience includes training
water and wastewater utilities from around the state on energy management on behalf
of the EPA. Dan developed and managed for CEO the Main Street Efficiency Initiative,
a $1M state-wide program to assist small businesses implement energy efficiency
and facility upgrade projects, as a consultant to Trident Energy Services. As part of
this contract, Dan consulted with and/or provided training on all aspects of energy
management around the state. Dan co-authored one of the first mandatory ‘green
building’ programs in the country for the City of Aspen and Pitkin County. He has
consulted with over twenty municipalities on energy/climate action plans and has written
plans for the City of Aspen, and the Towns of Vail, Avon, Frisco and provided peer review
for the City of Glenwood Springs and the Town of Carbondale. He created the ‘Energy
Tracker’ tool specifically for municipalities. Dan’s diverse experience from the field to the
board room has allowed him to create comprehensive strategies that assist clients in
implementing effective and appropriate policy.
glenwood springs | aspen | salida | durango | gunnison | grand junction | meeker
Representative Project Experience
Asset Management:
Asset Management:
• Hunter Longhouse HOA (2015)
• Aspen Ski Co. Housing & Restaurants (2014, 2008)
• Pagosa Lakes Recreation Center (2013)
• Town of Snowmass Village Facilities (2012)
• CMC Central Operations (2011, building purchase evaluation)
• The Old Salida Hospital, Town Of Salida (2008)
Municipal Infrastructure Assessments:
• Silverthorne Public Works Strategic Plan (2016)
• Ouray County Master Plan (2016)
• Town of Mancos Capital Improvement Plan (2016)
• Red Cliff Capital Improvement Plan (2016)
• Ouray County Road & Bridge Audit (2015)
• Roaring Fork Water & Sanitation District (2014)
Facilities & Systems
Energy Management
• Aspen Skiing Company (2008 - present)
• Energy Management, Town of Snowmass Village (2008 - present)
• Eagle River Water & San District Water/energy modeling (2014)
• Energy Star Certification Project Management, JCPenney (2009)
LEED® consulting:
• Ridgway Fire Station (2014)
• Carbondale Library (2012, no certification),
• Glenwood Springs WWTF (2009, no certification)
Project Management:
• Electric Systems Facility, Design PM, City of GS (2014)
• CNG Facilities Project Development Manager, RFTA (2012)
• Distribution & Collections Facility Project Dev. for ERWSD (2011)
• Water Conservation Plan for City of Rifle (2008)
Alternative Fuel Analysis:
• Town of Vail (2014)
• City of Steamboat Springs (2014)
• Roaring Fork Transportation Authority (2010)
Alternative Energy Systems:
• Renewable Energy Analysis, Roaring Fork Transportation Authority (2010)
• Geothermal RFP for City of Glenwood Springs Ped. Bridge (2010)
• Garfield NECI Renewable Energy Analysis, Land + Shelter (2009)
• Solar PPA And Project Development, Town of New Castle (2009)
• Solar & Hydro Analysis, Town of Snowmass Village (2009)
• Solar, Wind And Hydro Analysis, City of Glenwood Springs (2008)
• Renewable Energy Analysis, Knapp Ranch (2011)
• Renewable Energy Analysis, Welles-Barr Residence (2011)
• Geothermal Analysis, CDOT Glenwood Springs (2008)
• Biomass Pre-Screening, Sunlight Mountain Resort (2009)
Representative Project Experience
Public Policy & Programs:
Energy Management Training for Water & Wastewater Utilities, EPA (2011)
CEO Main Street Efficiency Initiative, Trident Energy Services (2010)
CEO Energy Performance Contracting, Trident Energy Services (2010)
Greening BRT, Roaring Fork Transportation Authority (2010)
Municipal Action Plans & Policies:
•
•
•
•
•
Clean Tracks Energy Plan, Town of Frisco (2008)
Energy Action Plan, Town of Vail (2008)
Climate Action Plan, Town of Avon (2008)
Canary Action Plan, City of Aspen (as City employee, 2007)
Efficient Building Program, City of Aspen/Pitkin County (2004)
R.Hunt Walker
150 Village Lane, Carbondale, CO 81623 * Tel (970) 812-8171 * Cell (970) 274-8043
[email protected]
______________________________________________________________________
PROFILE
Municipal Department Head with 32 years of experience in developing and managing operational and
capital budgets for Public Works and Recreation Departments. Have the experience and knowledge to
manage large construction projects. Able to professionally present projects and reports to Town Councils,
Town staff, and community groups.
EXPERIENCE
Public Works Director, Town of Snowmass Village, Snowmass Village, CO 1981-2013
• Reviewed and prepared the annual operating budget.
• Administered and managed the Road Mill Levy Fund and the Town’s Capital Improvement Program.
• Assisted Division Supervisors in developing their spring and summer work plan and schedule.
• Performed the annual assessment of the Town’s street network, and helped the Town Engineer develop
the Town’s Bid schedule for it’s asphalt overlay program.
• Reviewed and administered Right of Way Permits.
• Reviewed development plans and submitted comments to the Planning Dept.
Transportation Director, Town of Snowmass Village, Snowmass Village, CO 1979-1981
• Developed the initial routes and schedules for the Town of Snowmass Village’s first bus system called
the Town Shuttle.
• Was responsible for hiring and managing supervisors, bus drivers, and support personnel for the
Department.
Owner/ Operator, Blazing Paddles, Snowmass Village, CO 1976-1980
• Operated rafting trips on the Colorado, Arkansas, and Roaring Fork Rivers.
• Schedule trips, conducted boatman training, and oversaw the business side of the operation.
Recreation Director, Snowmass Resort Association, Snowmass V, CO 1973-1976
• Developed the programs for children’s activities, swimming, hiking, skiing, and softball.
• Made reservations for a variety of winter activities including snowcat tours and the sleigh-ride BBQ.
• Conducted ski races and other on mountain events for groups such as Airline Associations.
EDUCATION
• University of Denver, Denver, CO 1970 - BA Mass Communications
AFFILIATIONS
• Member American Public Works Association
• Secretary Colorado Chapter of APWA
• Board member of West Slope Chapter of Colorado Chapter of APWA
REFERENCES
• Available upon request.
Resumes
J. Scott Munn
Munn Architecture LLC
315 East Agate Ave
Granby, CO 80446
PO Box 21
Granby, CO 80446
Education
1984‐1988, Graduate of Redwood H.S., Marin County Ca.
1988‐1995, B.A. Architectural Studies, College of Architecture and Urban
Planning, University of Washington, Seattle Washington
Awards & Accomplishments
Phone: 970‐887‐9366
Fax: 970‐887‐0383
E‐mail:
[email protected]
1992 US Olympic Rowing Team
1995 World Rowing Champion
Grand County Parade of Homes 2005‐Judges Choice Best Single Family
Residence
Cover Story “Unique Homes” in 2006 Grand County Blueprint magazine
Feature Article, “Green Aesthetics” 2008 Grand County Living Magazine
Positions Held
2007‐Present
Principal Architect – Munn Architecture LLC, Granby Colorado
2001‐2007
Associate Architect‐James K. Pool Architects, Granby Colorado
1997‐2001
Intern Architect‐Fritzlen Pierce Architects, Vail Colorado
Relevant Experience
Granby Design Committee Board Member
Granby Chamber Member
Grand Lake Area Historic Society Board Member
Grand Lake Design Review Committee Member
Grand Lake Master Plan Committee Member Grand
County Master Plan Advisory Board Member Grand
County Historic Preservation Board Member
REED M. GOOD
AIA, NCARB, LEED AP BD+C
8147 South Downing Street, Centennial CO, 80122
[email protected] 515.450.7416
EDUCATION: Bachelor of Architecture (BArch) - Professional Degree Program
Minor: Digital Media Studies - Rapid Prototype Design
College of Design - Iowa State University - Ames, IA 2008
Bachelor of Art and Design
College of Design - Iowa State University - Ames, IA 2008
Continuing Education:
Building Enclosure Council (BEC) Monthly Series - AIA - Denver CO 2013-Present
AIA + Arch 2030 - Sustainable Design Series (40 CU) - AIA - Denver, CO 2011
LEED Green Associate Prep Series - Fentress Architects - Denver, CO 2011
Revit Essentials Training Series - Initial.AEC - Denver, CO 2009
Semester Study Abroad - College of Design - Iowa State University - Rome, Italy 2007
Mike Lin Rendering Workshops - Austin, TX 2003 & Ames, IA 2005
EXPERIENCE:
[Project Architect] Roth Sheppard Architects - Denver, CO - Aug 2012 to Present
Firm Involvement (in addition to project responsibilities): Served as RSA Office BIM Manager & In-house IT Liaison,
[Converted RSA from CAD to a Revit Production System,
Developed the Revit Project Template & Production Standards / QAQC Protocols,
[Setup the Revit Server Project System & Administered FTP Site / Project Access,
Researched / Evaluated Software Systems and Managed Computer Upgrades,
[Integrated a Project Email Account System & Backup Server / Cloud Systems,
Established New RSA Revit Projects and Converted Preliminary Cad to BIM,
[Managed Weekly RSA Staffing Meetings & Tracked Project Milestones,
Supervised RSA Office Continuing Education Selections,
[Participated in Office Charrettes & Led Internal Design Presentations,
Reviewed Potential New-Hire Resumes & Conducted Interviews
[Intern Architect III] Fentress Architects - Denver, CO - June 2008-Aug 2012
Firm Involvement (in addition to project responsibilities): [Sustainability Newsletter Research & Writer, Sustainable Design Film Series (host: 2010-2012), [Building Enclosure Strategies Research - AIA+Arch 2030 Series, Passive Design Strategies Research, Market Sector Trend Research, [Technical Presenter: Software Best Practices & Production Strategies,
FA Revit Standards and Steering Committee, 3D Design Technologies Committee Professional Development:
[Advanced Revit Training, FA Mentor Program, Leadership Book Series,
Creativity & Leadership Training Seminars, FA Intern Development Group,
[USGBC & Governor’s Energy Office Webinar Training
[Architectural Intern]
[Project Designer]
[Architectural Renderer]
[Architectural Intern]
[Carpentry Apprentice]
SFS Architecture - Kansas City, MO - June-Nov 2007
Gilleney House - Boone, IA - Sept-Dec 2006
West Glen Development - West Des Moines, IA - Aug 2005-May 2006
Simonson & Associates Architects - Des Moines, IA - Dec 2004-Aug 2005
Crider Concrete & Construction - St. Louis, MO - Seasonally 2000-2006
RMG - Resume - 1 / 4
REED M. GOOD
SOFTWARE: Revit Architecture 2015 [7 yrs], AutoCad 2015 [10+ yrs], SketchUp 2015 [10+ yrs],
[FastTrack Schedule 10 [2 yrs], PlanGrid [2 yrs], Punch 10.01 [2 yrs],
SU Podium [3 yrs], 3D Max 2011 [3 yrs], Rhino [3 yrs], Cinema 4D [3 yrs],
[Photoshop [10+ yrs], In-Design [10+ yrs], Illustrator [4 yrs], Bluebeam Revu [4 yrs],
Acrobat [10+ yrs], PowerPoint [10+ yrs], Microsoft Office [15+ yrs]
STRENGTHS: Design Process Innovation, Problem Solving & Sustainable Solutions,
[Verbal / Visual Communication, BIM Project Implementation & Management,
Independent and Collaborative Project Team Approaches,
[Contract Document Production, Coordination & Construction Administration,
Prefab Product Systems, Materiality Research and Detail Integration
Skilled with Design Workflow, Visualization, Technical and Freehand Drawing, [Digital & Physical Modeling, Photography, Research and Documentation,
Rapid Prototype Strategies utilizing Laser Cutters, 3D Printers & Vacuum Forms
ACCOLADES: Vision Award (Intern of the Year) - Fentress Architects, Denver, CO 2011
Urban Housing Design Scholarship - BWBR Architects, St. Paul, MN 2006
Dean’s List - College of Design (ISU) 2002-2008, National Dean’s List 2005
Golden Key International Honor Society - ISU, Ames, IA 2008
AFFILIATIONS:
[Member] National Council of Architectural Registration Boards (NCARB) - 2008-Present
IDP Training Unit Requirements - completed 2011
Architect Registration Exams - completed March 2013
Architect License - Colorado #403143 (April 2013-Present)
NCARB Reciprocity Credential - #207033 (May 2013 -Present)
[Member] American Institute of Architects - Denver, CO 2009-Present
American Institute of Architecture Students (AIAS) - Ames, IA 2003-2006
Associate AIA Member - Denver, CO 2009-2013
COTE Volunteer & Emerging Professionals Series Participant
AIA Member - Denver, CO 2013-Present
Building Enclosure Council (BEC) Seminar Participant
[Member] U.S. Green Building Council (USGBC) - Denver, CO 2010-Present
LEED Green Associate 2010, LEED AP - Building Design & Construction 2011
[Volunteer] Habitat for Humanity - Metro Denver Chapter - Denver, CO 2009-Present
University of Northern Iowa & Iowa State University Chapters 2002-2005;
Collegiate Challenge - Blitz Build (1-week construction series)
- Southern Pines, NC 2003 & Fort Worth, TX 2004
[Member]
[Member]
[Volunteer]
[Volunteer]
[Member / Volunteer]
[Volunteer]
[Volunteer]
Rocky Mountain Building Information Society (RoMBIS) - Denver, CO 2012-Present
American Homebrewers Association - Denver, CO 2015-Present
University of Colorado Denver - Dept of Architecture - Portfolio Review - Denver, CO 2014
CASA for Children – Toy Drive - Denver, CO 2013-2015
Denver Revit Users Group - Denver, CO 2009
CANstruction - Salvation Army - Des Moines, IA 2006 & Denver, CO 2009
Rebuilding Together - St. Louis, MO 2006
REED M. GOOD
ROTH SHEPPARD ARCHITECTS Aug 2012 - Present
[Denver, Colorado]
Denver Art Museum DAM Administration Offices (Denver, CO) 2012-2014
50,000 sf, Revit 2012 Project Architect / Designer: SD, DD, CD, CA
Awards: Merit Award - Built Architecture 2014, AIA Colorado
Merit Award - Distinguished Building 2014, AIA Western Mountain Region
#10 on Denver Post’s Annual Ranking - Denver’s 10 Biggest Cultural Moments in 2014
Best New Building Award - Westword’s Best of Denver 2015
Denver Performing Arts Center DPCA Ballroom Remodel (Denver, CO) 2012
13,100 sf, Autocad 2013 Project Architect / Designer: Site Documentation & Production Setup, DD
Evans / High Plains Library District Riverside Library and Cultural Center (Evans, CO) 2013
31,400 sf, Revit Server 2013 Project Architect / Designer: DD, CD
Lotus Concepts, LLC ViewHouse 2.0 Restaurant Remodel & Addition (Centennial, CO) 2013-2014
20,600 sf, Revit 2013 Project Architect / Designer: DD, CD, CA
MillerCoors, LLC Blue Moon Brewery and Taproom (Denver, CO) 2015
26,900 sf, Revit 2015 Project Architect / Designer: Existing Site Documentation / Production Setup, DD
Royal Canadian Mounted Police RCMP Police Services Building & Forensic Science Lab (Kelowna, BC) 2015
48,8000 sf, Revit 2015 Project Architect / Designer: DD, CD
Colorado Bureau of Investigation CBI Forensic Science Lab Facility (Pueblo, CO) 2014-2016
20,000 sf, Revit 2013 Project Architect / Designer: SD, DD, CD, CA
LEED Silver Colorado Bureau of Investigation CBI Forensic Science Lab Facility - Remodel & Addition (Arvada, CO) 2015-2016
28,000 sf, Revit 2013 Project Manager / Designer: SD, DD, CD, CA
FENTRESS ARCHITECTS June 2008 - Aug 2012
[Denver, Colorado]
Charleston Co Aviation Authority Charleston International Airport Modernization (Charleston, SC) 2012
365,000 sf, Revit Server 2013 Job Captain / BIM Manager: SD, DD
John Madden Company Johns Manville International Headquarters - unbuilt (Greenwood Village, CO) 2011-2012
322,000 sf, Revit 2012 BIM Manager / Designer: SD, DD
Alaska Airlines LAX - Terminal 6 Renovation & Terminal 3 Relocation (Los Angeles, CA) 2011
218,000 sf, Revit 2011 Designer / Production: CD
LEED Gold
Los Angeles World Airports LAX - Tom Bradley International Terminal Modernization (Los Angeles, CA) 2008-2011
1,200,000 sf, Revit 2011 BIM Manager / Designer: SD, DD, CD, CA
LEED Gold Awards: Presidential Award - Building Team of the Year 2013, AIA Los Angeles
REED M. GOOD
SFS ARCHITECTURE June 2007 - Nov 2007
[Kansas City, Missouri]
Archdiocese of KC Holy Spirit Catholic Church Renovation (Overland Park, KS) 2007
14,000 sf, Autocad 2007 Designer / Production: Existing Site Documentation, CD, As-builts
Archdiocese of KC Saint Matthew Apostle Parish Renovation (Kansas City, MO) 2007
10,000 sf, Autocad 2007 Marketing: Visualization & Award Submissions
Clayview Country Club Clubhouse, Aquatic Center & Tennis Facility (Kansas City, MO) 2007
6,000 sf, Autocad 2007 Designer / Production : Visualization, Site Analysis, SD, DD
UMB Financial Corp UMB Branch Bank Renovation & Addition (Kansas City, MO) 2007
3,000 sf, Autocad 2007 Designer / Production: Concept Design, SD, DD
Xenotech Labs Xenotech Laboratory Upgrade (Kansas City, MO) 2007
4,000 sf, Autocad 2007 Designer / Production: SD, DD
INDEPENDENT DESIGN Sept 2006 - Dec 2006
[Ames, Iowa]
William Gilleney Gilleney House (Boone, IA) 2006
3,300 sf, Autocad 2005 Designer / Production: Visualization, Site Analysis, SD, DD, CD
SIMONSON & ASSOCIATES
ARCHITECTS Dec 2004 - Aug 2005
[Des Moines, Iowa]
West Glen Town Center West Glen - Avenue of the Arts (West Des Moines, IA) 2004-2005
52,000 sf, Autocad 2004 Designer / Production: Visualization, Site Analysis, SD, DD, CD, CA
PROJECT SAMPLES:
[DAM Offices - Roth Sheppard]
[ViewHouse 2.0 - Roth Sheppard]
[LAX Airport - Fentress]
[Collegiate Sketches]
Merlin Maley, AI A, NCARB, LEED AP BD+C
A S S O C I AT E P R I N C I PA L / W E S T E R N R E G I O N T R A N S I T
EDUCAT I ON
Master of Architecture,
University of Colorado, 2003
Master of Landscape Architecture,
Bachelor of Environmental Design
REGI ST R AT I ON S
Registered Architect: Colorado, Indiana,
Missouri, Texas, Utah, Wisconsin and
Wyoming,
LEED Accredited Professional,
Building Design + Construction
National Council of
Architectural Registration
Boards (NCARB)
AF FI LI AT I O NS
American Public Transit Association
(APTA) APWA Colorado Chapter
National Center for Intermodal
Transportation
Denver Chamber of Commerce
Southwest Transit Association, Board
Member
Merlin Maley is RNL’s Western Region Transit Director and an Associate
in the firm. For the past 11 years, Merlin has dedicated his career to the
transportation and public sector industry, working on numerous maintenance and
operations facilities, multi-modal stations and facility master plans across the
United States. Merlin is a Leadership APTA class of 2013 graduate. Over the
course of his 19 year career, Merlin has experience in the field of architecture,
landscape design and green construction, serving as a project coordinator, project
architect, project manager, project principal, designer and sustainability champion
on many projects. His bus administration, maintenance and operations project for
Transpo in South Bend, Indiana achieved LEED Platinum certification by the Green
Building Certification Institute. This was the first transit maintenance and
operations facility in the country to achieve LEED’s highest level of certification.
Additionally, Merlin’s projects have won numerous design awards from the
American Institute of Architects and other professional services within the AEC
industry. Professionally, Merlin is active in the American Association of Public
Transportation (APTA), the Southwest Transit Association (SWTA), and the
Colorado Association of Transit Agencies (CASTA). Sustainable cities that are built
around great transit systems are his passion. The following projects are
representative of Merlin’s experience since joining RNL in January 2004.
TRANSPORTATION/PUBLIC WORKS FACILITIES
Summit County Fleet Maintenance Facility–Frisco, Colorado–Project Manager/
Architect and Sustainability Champion/Construction Administration
Summit County Facilities Master Plan–Frisco, Colorado–Project Principal
START Master Planning, Programming and Concept Design–Jackson, Wyoming–
Project Manager/Lead Architect /Construction Administration
UTA Central Bus Operations, Maintenance and Administration Facility–Salt Lake
City, Utah–Planner/Project Manager
Green Building Certification Institute
American Institute of Architects
Colorado Association of Transit Agencies
(CASTA)
Association of Corporate Growth (ACG)
Downtown Denver Partnership
P R O F ES SI ON AL ACT I VI T I ES
APTA Bus & Paratransit Planning
Committee 2014–Present
SWTA Conference Planning Committee,
2015–Present
RNL Leadership University, 2015
APTA State Affairs Committee Member,
2014–Present
Emil “Lucky” Reznick Adminisitration, Maintenance and Operations Facility
(TRANSPO)–South Bend, Indiana–Project Manager/Sustainability Champion/
Construction Administration
Eagle P3 Design Competition Commuter Rail Maintenance Facility–Denver,
Colorado–Project Manager
Greeley Evans Transit Center–Greeley, Colorado–Project Principal
Torrance Transit Center–Torrance, California–Architect
Harrisonburg Fleet Maintenance & Operations Facility–Harrisonburg, Virginia–Team
Architect
RTD Commuter Rail Maintenance Facility (CRMF) Design Competition– Project
Architect and Sustainability Champion
Leadership APTA Graduate, 2013
VVTA Transit Administration, Operations and Maintenance Facility–
Hesperia, California–Project Coordinator, Landscape Designer
IMPACT Leadership Program, 2012
RTC Transit Sunset Maintenance Facility–Las Vegas, Nevada–Project
APTA Policy & Planning Committee,
2010–Present
Coordinator Springfield CS Utilities Concept Study–Springfield, Missouri–
ACG Leadership 20 Graduate, 2010
Designer Sacramento RT Concept Study–Sacramento, California–Designer
AIA Denver COTE Committee Chair,
2010
Merlin Maley, AI A, NCARB, LEED AP BD+C
A S S O C I AT E P R I N C I PA L / W E S T E R N R E G I O N T R A N S I T
First Transit Planning Study–Denver, Colorado–Project
Madison Metro Transit Facility–Madison, Wisconsin - Project Coordinator
City of Loveland Service Center Expansion–Loveland, Colorado–Project Manager
Citizen’s Academy, Graduate, 2009
AIA Denver Committee on the
Environment (COTE), Outreach
Committee Chair,
2005-08
AIA Denver COTE Steering Committee
Member, 2005-2011
Cleworth Architectural Legacy
(CAL) Project–2006
Town of Parker Public Works Facility–Parker, Colorado–Project Manager Colorado
Springs Downtown Transit Center Study–Project Principal
City of Greenwood Village Public Works Master Plan–Greenwood Village,
Colorado– Planner/Designer
Denver Public Works Central Platte Campus–Denver, Colorado–Team Architect
Louisville City Services Facility–Louisville, Colorado–Project Manager
Rebuilding Denver, 2005-2006
City of Longmont Service Center Expansion–Longmont, Colorado–Project
Manager
AIA Denver Habitat for Humanity
Sustainable Housing Design Competition
Committee Member, 2011-2012
City of Greenwood Village Public Works Master Plan–Greenwood Village,
Colorado– Project Manager
U.S. Green Building Council, Member
Local Focus Committee for GreenBuild
2006 Conference, Denver, Colorado
Aurora Transmission and Distribution Programming Study–Aurora, Colorado–
Project Principal
Broomfield Parks and Public Works Master Plan–Broomfield, Colorado–Project
Principal
AW ARDS AND HONORS
APWA Colorado Chapter Project of
the Year, Medium Sized Structures,
Parker Public Works, 2015
CIVIC/GOVERNMENT
AIA Northern Indiana, Merit Award,
Emil ‘Lucky’ Reznik Administration,
Maintenance & Operations Facility, 2011
National Guard Field Maintenance Shop #3–Grand Junction,
Colorado– Project Coordinator
40 Under 40, Mass Transit Magazine
AIA Western Mountain Region Merit
Award, RTD Commuter Rail Maintenance
Facility (Unbuilt), 2010
AIA Colorado Merit Award, RTD
Commuter Rail Maintenance Facility
(Unbuilt), 2010
Institute of Forensic Psychiatry–Pueblo, Colorado–Project Manager/Construction
Administration
Commerce City Civic and Justice Center–Commerce City, Colorado–
Project Team Member
COMMERCIAL/MIXED USE
AIA Denver Merit Award, RTD Commuter
Rail Maintenance Facility (Unbuilt
Category), 2010
Spire Mixed-Use Residential High-Rise–Denver, Colorado–Project Team Member
AIA Denver COTE James Sandler Award,
2010
One Steamboat Place–Steamboat Springs, Colorado–Project Team Member/
Sustainability Champion
Best Conceptual Design–Canine
Companions/AIA Denver Dog House
Competition–2006
People’s Choice Award–AIA Denver–
Hedgerow Townhomes–2007
AIA Denver Committee On the
Environment Service Award–2007
PUBLI C AT I ONS
“The Power (and Necessity) of
Sustainable Public Transit Design”
Passenger Transport, September 2015
“Imagery: A Visual Journal,” YAF
Connection, March 2012
Gateway Mixed-Use, High-Rise Project–Phoenix, Arizona–Project Team Member
Prospect Place–Denver, Colorado–Project Team Member
Shams Abu Dhabi Master Plan–Abu Dhabi, United Arab Emirates–
Project Team Member
Abu Shuum Room Parcel 2–Abu Dhabi, United Arab Emirates–Project
Team Member
Ray Charbonneau
Project Manager
EDUCATION:
State University of New York at
Oswego
Business Administration
AFFILIATIONS:
International Concrete Repair
Institute
Post Tensioning Institute Certified
PROJECT SPOTLIGHT
Ray Charbonneau is a Project Manager in Walker’s Denver office. Ray joined
Walker in May of 2000 with over 20 years of construction industry experience.
His background in the restoration industry encompasses 20 years of Project
Management and 25 years in the concrete and waterproofing industry as a
Project Manager and Project Superintendent. His experience in construction is
varied from construction of new commercial buildings to restoration of parking
structures, plaza decks and professional sport stadiums.
Ray has extensive field experience with expansion joints, concrete overlays, traffic
coatings, hot and cold waterproofing systems, post tensioning, paver systems,
concrete repair materials and has held installer certificates from numerous
product manufactures for their systems.
He is formally trained in project management and construction scheduling. His
responsibilities as Project Manager included project budgeting, scheduling,
development of construction documents, and construction administration.
REPRESENTATIVE PROJECTS:
City of Lakewood Civic Center Plaza
Lakewood, Colorado
Walker was hired to evaluate and
report on the current condition of
the parking structures, attached
pedestrian bridges, concrete drive area
adjacent to the police administrative
building, stairs, south and east
patios, and retaining walls along the
Allison Parkway associated with the
parking structures. The evaluation
provided recommendations for
restoration repairs and/or preventive
maintenance, prioritization of repairs/
preventive maintenance, and assists
in planning for future repair and
preventive maintenance budget cycles.
Town of Winter Park - Parking Structure
Restoration
Winter Park, CO
Project Manager
Construction administration/
observations, repair documents, and
condition appraisal
City of Lakewood Civic Center Plaza
Lakewood, CO
Project Manager
Plaza restoration, maintenance repair
and conditional appraisal
Denver Place Plaza
Denver, CO
Construction administration, asset
management program, repair
documents, and plaza restoration
The Residences at Trolley Park Plaza
Aurora, CO
Plaza restoration and conditional
appraisal
MCI Plaza
Englewood, CO
Construction documents and
administration, small concrete repair and
urethane coating application
Denver International Airport
Denver, CO
Multi-Year
Restoration Construction Documents
Multi-Year Construction Administration
City of Santa Rosa
Santa Rosa, CA
Multi Deck Condition Assessment
Construction Documents
Dodger’s Stadium
Los Angeles, CA
Condition Assessment/Construction
Documents, Bowl Seating Restoration
We provide innovative, practical solutions to make our clients successful
while ensuring the health, safety and welfare of our neighbors.
We develop and maintain lasting client relationships and are
committed to our local communities.
GLENWOOD SPRINGS
118 West 6th Street, STE 200
Glenwood Springs, CO 81601
970.945.1004
970.945.5948 fax
MEMORANDUM
To:
From:
Date:
Re:
Town Council
Gerry Vernon
07/29/2016
Broadband Feasibility Study Bid Award
BACKGROUND
In October, 2015 the Town Councils from Winter Park and Fraser adopted the Fraser Valley Strategic
Economic Development Plan. This plan identified five goals as priorities for economic development in the
Fraser Valley. The second ranked priority of the five was to: Increase and expand access to broadband
services throughout the Fraser Valley. Following that initiative, the Town of Fraser developed a request for
proposals for a broadband feasibility study. They received two proposals and subsequently invited Winter
Park staff to evaluate the responses and participate in the study. The Council budgeted $65,000 in 2016
towards this effort.
ANALYSIS
Proposals were received from the following two firms:
Connected Nation, Bowling Green, KY
Vantage Point, Mitchell, SD
A Selection Committee comprised of Drew Nelson, Jeff Durbin and Gerry Vernon reviewed and discussed
each proposal. Ultimately, it was determined that Vantage Point provided the best proposal as they are a
full service broadband agency that provides, existing conditions assessment, network engineering, and
broadband consultation. Additionally, they have a branch office in Superior, Colorado and have proposed
the project manager, Lori Sherwood to be from that office.
Staff met with Ms. Sherwood to detail the proposal to ensure that it incorporated both towns into the study,
refine the scope of work and to finalize costs. Vantage Point revised their original proposal and offered to
conduct the feasibility study for an overall cost of $59,050.00. They have also proposed an optional speed
test for businesses for an additional $3,000.00 base fee plus $200.00 per module. We are not interested
in this optional speed test at this time. The Town of Fraser is proposing to split the cost of the feasibility
study so the cost to Winter Park will be $29,525.00.
As an aside, Mountain Park Electric, Inc. is also moving forward with a feasibility study for their service
area. Staff has met with Tom Sifers, General Manager, several times to discuss a possible future
partnership. We will continue to keep each other apprised as we move forward as everyone sees the
potential benefits of a collaborative broadband effort.
RECOMMENDATION
Staff recommends the Town Council approve the selection of Vantage Point to conduct the Broadband
Feasibility Study and authorize the Mayor to enter into a professional services agreement for an amount
not to exceed $29,525.00 by adopting the following resolution:
I move to accept the proposal received by Vantage Point for the development of a Broadband Feasibility
Study in the amount of $29,525.00 and authorize the Mayor to enter into a Professional Services Agreement
for the development of a Broadband Feasibility Study for the Town of Winter Park, and further instruct staff
to prepare a resolution to this effect.
Alternative Motion
In the event the Town Council wishes to deny award of the proposal to Vantage Point, staff recommends
the Town Council make the following motion:
I move to deny the award of the Broadband Feasibility Study to Vantage Point for the following findings of
fact:
Town of Winter Park
Public Works Department
Memo
To:
Town Council
From: Russ Chameroy, Public Works Director
Date: July 22, 2016
The Public Works Department is requesting an additional $15,000 to complete the build of our
new lead snow plow truck. The process of getting the truck to suit our needs and get us as close
to budget have brought us to a total purchase price of around $215,000 up from the budgeted
amount of $199,900.
We have done comparative pricing from three vendors to fulfill our Town Purchasing Policy.
The process of getting this specialized piece of equipment on the road will take about 9 months,
3 months to get the bids in place, 3 months to build the truck and 3 months to up fit all of the
snow and ice equipment to the truck. We hope to see this truck sometime around the first of the
year.
I will bring paperwork and build sheets with me to the 8/2/2016 meeting should you have any
questions about this purchase.
Thanks.
MEMORANDUM
To:
From:
Date:
Re:
Town Council
Drew Nelson, Town Manager
August 2, 2016
Construction and Sale Contracts, Maintenance Agreement, and Parking Garage Agreement –
Sitzmark South
BACKGROUND
In pursuit of completion of the legal documentation regarding the purchase of housing units and a parking
garage at the Sitzmark South site, Town staff and the Town Attorney have been negotiating terms with the
Winter Park Development Co, LLC. These negotiations have been in line with the Council’s direction as
well as in compliance with the Letters of Intent that the Town Council signed for these purchases in March
of 2016. Attached are four documents for the Town Council’s separate consideration: Construction and
Sale Contract for thirty eight (38) housing units, Construction and Sale Contract for a parking structure,
Maintenance Agreement for maintenance of facilities on the Sitzmark South site, and a Parking Garage
Agreement for use of the parking structure to be constructed on the Sitzmark South site.
ANALYSIS
Town staff and the Town Attorney have been developing these agreements over the past four months to
effect the Town Council’s vision for the first phase of the Sitzmark South site. Below are a few notes about
each agreement:
Housing Units:
 The Contract is slightly different than the March Letter of Intent due to the reduction of units from
forty two (42) to thirty eight (38). The cost breakdown is $230 per square foot for habitable space
and $55 per square foot for storage space and balconies. These costs are well in line with other
attainable housing units in other mountain resort communities.
 The Contract includes a clause that does not allow the Town to sell the units for a period of six
years following closing to avoid insurance costs associated with Colorado’s construction defects
law. The Town’s bond counsel, financial advisors, and Centennial Bank have no issue with this
restriction.
 The Contract includes a clause that should the delivery of the units be delayed beyond November
1, 2017, the Town is not obligated to close on the units between that time and June 1, 2018. This
is intended to avoid a long lease-up period that would cause cash flow issues for the Town upon
issuance of debt for the units.
Parking Structure:
 The Contract is in line with the March Letter of Intent. The purchase price of $4,500,000 is the
same as that LOI.
 The Contract includes a clause that does not obligate the Town to complete the purchase if the
developer cannot secure a lease with a market tenant. This is important in the event that the
parking garage is constructed but no tenant exists, as revenues from the market tenant are planned
to be used to offset debt payments for the structure.
Maintenance Agreement:
 The Maintenance Agreement was developed to limit the Town’s exposure to master declarations
and/or covenants for the property that could inhibit the Town’s actions in the future. For example,
a declaration would subject the Town to a master HOA that would dictate HOA dues or legal
actions, causing increased costs for the Town in a development that is intended to be affordable.
In addition, that master HOA could choose to increase HOA dues on the attainable units should
they be sold off individually, further reducing the affordability for potential buyers.
Parking Garage Agreement:
 The intent of the Parking Garage Agreement was to provide the market tenant surety of use for the
operations of their business. The Agreement contemplates times of use, availability of parking,
and maintenance obligations. The Town’s Bond Counsel still needs to review this document for
purposes of evaluating the private use components of the Agreement, which could have a
significant impact on the interest rate that the Town can receive. Approval by bond counsel has
been added as a condition of approval.
RECOMMENDATION
Town staff recommends approval of the Construction and Sale Contract for thirty eight (38) housing units,
Construction and Sale Contract for a parking structure, Maintenance Agreement for maintenance of
facilities on the Sitzmark South site, and a Parking Garage Agreement for use of the parking structure to
be constructed on the Sitzmark South site, to be enacted via four separate motions by the Winter Park
Town Council:
Construction and Sale Contract – Housing Units
I move to approve the Construction and Sale Contract for thirty eight (38) housing units between the Town
of Winter Park and the Winter Park Development Co, LLC, with the following findings of fact and conditions:



The Construction and Sale Contract is necessary to secure attainable housing units in the Town of
Winter Park, as identified in the Town’s 2015 Housing Needs Assessment; and
The Town Council desires to provide quality attainable housing for the community; and
The approval of the Construction and Sale Contract is conditional upon final approval of the Town
Attorney and Bond Counsel.
And I further move to instruct Town staff to prepare a resolution to this effect for signature by the Mayor.
Alternative Motion
In the event the Town Council wishes to deny the Construction and Sale Contract, staff recommends the
Town Council make the following motion:
I move to deny the Construction and Sale Contract for thirty eight (38) housing units between the Town of
Winter Park and the Winter Park Development Co, LLC, due to the following findings of fact:

______________________________
Construction and Sale Contract – Parking Garage
I move to approve the Construction and Sale Contract for a parking garage between the Town of Winter
Park and the Winter Park Development Co, LLC, with the following findings of fact and conditions:



The Construction and Sale Contract is necessary to purchase a public parking facility to assist in
the development of the Sitzmark South site; and
The Town Council desires to provide quality infrastructure and facilities for the benefit of its citizens
and guests; and
The approval of the Construction and Sale Contract is conditional upon final approval of the Town
Attorney and Bond Counsel.
Alternative Motion
In the event the Town Council wishes to deny the Construction and Sale Contract for the parking garage,
staff recommends the Town Council make the following motion:
I move to deny the Construction and Sale Contract for a parking garage between the Town of Winter Park
and the Winter Park Development Co, LLC, due to the following findings of fact:

______________________________
Maintenance Agreement
I move to approve the Maintenance Agreement between the Town of Winter Park and the Winter Park
Development Co, LLC, with the following findings of fact and conditions:



The Maintenance Agreement is necessary for the orderly maintenance of the Sitzmark South site;
and
and guests; and
The approval of the Maintenance Agreement is conditional upon final approval of the Town Attorney
and Bond Counsel.
Alternative Motion
In the event the Town Council wishes to deny the Maintenance Agreement, staff recommends the Town
I move to deny the Maintenance Agreement between the Town of Winter Park and the Winter Park
Development Co, LLC, due to the following findings of fact:

______________________________
Parking Garage Agreement
I move to approve the Parking Garage Agreement between the Town of Winter Park and the Winter Park
Development Co, LLC, with the following findings of fact and conditions:



The Parking Garage Agreement is necessary for the orderly operation of the Sitzmark South site;
and
and guests; and
The approval of the Maintenance Agreement is conditional upon final approval of the Town Attorney
and Bond Counsel.
Alternative Motion
In the event the Town Council wishes to deny the Parking Garage Agreement, staff recommends the Town
I move to deny the Parking Garage Agreement between the Town of Winter Park and the Winter Park
Development Co, LLC, due to the following findings of fact:

______________________________
CONSTRUCTION AND SALE CONTRACT
THIS CONSTRUCTION AND SALE CONTRACT (the "Contract") is made and entered
into this _____ day of August, 2016 (the "Effective Date"), between Winter Park Development Co
LLC, a Colorado limited liability company with an address of 1500 Wynkoop Street, Suite 200,
Denver, CO 80202 ("Seller"), and the Town of Winter Park, a Colorado home rule municipality with
a mailing address of 50 Vasquez Road, Winter Park, Colorado 80482 (the "Town") (each individually
a "Party" and collectively the "Parties").
1.
SALE, PURCHASE AND TITLE.
A.
Seller agrees to sell and the Town agrees to purchase the real property and
improvements to be constructed thereon (the "Property") described below on the terms and
conditions set forth in this Contract:
Two separate buildings containing 38 dwelling units to be constructed on a portion of
the land owned by Seller located in the Town of Winter Park, Colorado, as shown on
Exhibit A attached hereto and incorporated herein by this reference. The legal
description of the Property will be determined upon approval of a subdivision plat
separating the Property from the adjacent land owned by Seller.
Each individual dwelling unit is referred to herein as an "Attainable Housing Unit" and each building
containing one or more of the Attainable Housing Units is referred to herein individually as a
"Building". The two buildings are collectively referred to herein as the "Buildings". The Property
has a current address of 78415 U.S. Highway 40, Winter Park, Colorado. The subdivision plat
separating the Property from the adjacent land owned by Seller (the "Subdivision Plat") will include
sufficient land area to accommodate the Buildings plus not less than 23 surface parking spaces
(including any parking spaces to be located beneath one of the Buildings), and sufficient land area to
install landscaping in accordance with the applicable requirements of the ordinances of the Town.
The land to be included in the Subdivision Plat that will comprise the Property is shown on Exhibit
A.
B.
In addition, Seller agrees to construct within Building E shown on Exhibit A 38
storage spaces, each of which will be approximately 42 square feet in ground area (the "Storage
Spaces").
C.
The Town will take title to the Property in its own name or in the name of a permitted
assignee of this Contract.
2.
EARNEST MONEY DEPOSIT. Seller acknowledges receipt from the Town of the sum of
$250,000 (the "Deposit"). The Deposit shall be held by Land Title Guarantee Company, Winter Park
office (the "Title Company") in an interest-bearing account as an earnest money deposit for the
purchase of the Property. The Deposit shall be non-refundable except as specifically provided in this
Contract.
3.
PURCHASE PRICE. The purchase price for the Property shall be $9,192,375.
1
4.
CONSTRUCTION.
A.
General. The Buildings shall be constructed in accordance with plans approved by
the Town (the "Approved Plans"). The Purchase Price shall include completion of construction of
the Buildings and Attainable Housing Units in accordance with the Approved Plans and landscaping
that complies with the applicable requirements of the ordinances of the Town. Issuance of a final
Certificate of Occupancy by the Town shall be conclusive evidence of completion of construction in
accordance with the requirements of this Contract.
B.
Title. The Town shall have no right, title or interest in or to the Property and no right
to possession of the Property or occupancy of the Property until delivery of the deed conveying the
Property to the Town, except the right to purchase the Property.
C.
Inspection. The Town or the Town's representative may inspect the Property at any
reasonable time. The Town shall not instruct construction workers or interfere with construction
workers. The Town shall make a final "walk-through" inspection of the Buildings with Seller not
more than seven days and not less than three days prior to Closing. Immediately after the final
inspection, the Town shall deliver to Seller a "punch list" identifying any alleged defects in the
Buildings. Seller shall use its best efforts to correct all items on the "punch list" before Closing, except
for those items that the Town agrees may be corrected after Closing or that cannot reasonably be
completed prior to Closing but do not interfere with the Town's ability to use the Buildings for their
intended purpose. If any punch list or warranty work is to be performed after Closing, the Town shall
provide Seller and its contractors reasonable access to the Buildings from 7:00 a.m. to 6:00 p.m.,
Monday through Friday, until such work is completed.
D.
Town Work. The Town may not have any construction work performed on the
Property prior to Closing by any person without the written approval of Seller.
E.
Construction Issues. The Town acknowledges and recognizes that inasmuch as the
Town is purchasing the Property during a period of construction and the Property may be completed
prior to the completion of other properties, streets and common areas on the adjacent land owned by
Seller, there may be certain inconveniences until such construction is completed.
F.
Landscaping. Seller acknowledges that the Purchase Price specifically includes the
design and installation of landscaping on the Property. Seller shall provide all labor and materials to
complete the landscape installation in conformance with the applicable requirements of the
ordinances of the Town and the Approved Plans. Any landscaping beyond the applicable
requirements of the ordinances of the Town, requested by the Town, may be installed at the Town's
expense.
G.
Deadline. Seller agrees to use its best efforts to complete all construction required by
this Contract on or before November 1, 2017, subject to extensions for Force Majeure, unless an
extension is mutually agreed upon by the Parties in writing. Failure of Seller to complete construction
on or before November 1, 2017 shall not be a default hereunder as long as Seller has used its best
efforts to complete construction by such date, subject to extensions for Force Majeure. Should
construction not be completed on or before November 1, 2017, without an agreed-upon extension,
Seller agrees that the Town may defer Closing on the Property to a date selected by the Town, but no
2
later than June 1, 2018. Regardless of the foregoing, if Seller fails to complete construction required
by this Contract on or before two years after the Effective Date, the Town may terminate this Contract
and the Deposit shall be returned to the Town, with any accrued interest.
5.
TITLE MATTERS.
A.
Seller shall furnish to the Town, at Seller's expense, a current commitment for owner's
title insurance policy in an amount equal to the Purchase Price within 30 days of the Effective Date.
The Town shall have the opportunity to inspect the title commitment before Closing. The Town shall
provide Seller notice of objection to title within seven days of receiving the title commitment. If the
Town objects to title for any reason, Seller may elect to either cure such objection or terminate this
Contract within 30 days after receipt of the Town's notice of objection to title. If Seller elects to
terminate this Contract, the Earnest Money shall be returned to the Town, with any accrued interest,
and this Contract shall be null and void and of no further force or effect. If Seller elects to cure the
title objection, the title policy issued to the Town after Closing shall not include the title objection
which Seller agreed to cure. If Seller does not receive the Town's notice of objection to title
commitment on or before seven days after the Town's receipt of the title commitment, the Town shall
be deemed to have accepted the condition of title as disclosed by the title documents as satisfactory.
B.
Seller will cause the Title Company to provide an updated title commitment to the
Town at least ten days prior to Closing, with the Purchase Price reflected in the updated title
commitment to be based on measurements of the Attainable Housing Units. If the updated title
commitment discloses any title exceptions not shown on the original title commitment and such new
title exceptions materially interfere with the Town's ability to use the Property for its intended purpose,
the Town may terminate this Contract by providing a written notice of termination to Seller within
three business days after receipt of the updated title commitment. If the Town does not deliver such
notice of termination to Seller within such time period, the Town shall be deemed to have accepted
all title exceptions shown on the updated title commitment.
C.
The Parties intend to enter into a Maintenance Agreement for the Property setting
forth maintenance requirements for all improvements and landscaping to be located on the
Property (the "Maintenance Agreement"). The executed Maintenance Agreement will be
binding on the Town and all subsequent occupants and owners of the Property or any portion
thereof and will constitute covenants running with the land and equitable servitudes encumbering
the Property. The Maintenance Agreement will include provisions providing that Town has sole
responsibility for maintenance, repair and replacement of the Attainable Housing Units, the
Buildings, and related improvements on the Property (including areas such as sidewalks and bike
paths and snow storage areas). The approved Maintenance Agreement will be a permitted
exception to title at Closing.
6.
CLOSING COSTS, INSURANCE, TAXES.
A.
The Town shall pay the cost of recording and documentary fees in connection with
recording the deed, one-half of the Title Company's closing fee, the premium for any endorsements
to the Title Policy, the premium for its lender's title policy (if applicable), and its own attorney fees.
Seller shall pay one-half of the Title Company's closing fee, real estate taxes and assessments for all
years prior to the year of Closing, the premium for a standard Owner's Title Policy, and its own
3
attorney fees. Real estate taxes and assessments for the year of Closing, based on the then most recent
levy and then most recent assessment, shall be prorated as of the Closing Date. All prorations shall
be final.
B.
All sums due hereunder at Closing shall be payable in good funds at Closing as
required by Colorado law.
C.
At Closing, Seller shall deliver a special warranty deed to the Town conveying the
Property free and clear of all liens, encumbrances, and restrictions, except those described as
exceptions to title in the title commitment and the Maintenance Agreement.
D.
At Closing, the Town shall pay to Seller, by wire transfer or by certified funds, the
unpaid balance of the Purchase Price, the Closing costs, and all other sums payable to Seller
hereunder.
E.
Possession of the Property described herein shall be delivered to the Town at the time
of Closing. The Property shall not be occupied by the Town prior to Closing, nor shall any personal
property of the Town be stored therein prior to the Closing.
F.
The Town understands that all utilities to the Property shall be changed from Seller's
name and all such utility charges after the date of Closing shall be the Town's sole expense.
7.
COMMISSION/BROKER. The Town and Seller represent and warrant to each other that
they have not engaged a real estate broker or finder in connection with this transaction. The Town
and Seller agree to defend and hold each other harmless from claims by any broker or finder
inconsistent with this representation and warranty.
8.
CLOSING.
A.
Except as otherwise provided herein, the date of Closing shall be five business days
following completion of construction of the Buildings, as evidenced by issuance of a final certificate
of occupancy for the Buildings.
B.
Seller shall convey the Property to the Town by special warranty deed subject to taxes
for the fiscal year and subject to reservations, restrictions and conditions, if any, rights-of-way and
easements existing on the Property.
C.
9.
The Parties shall mutually agree on the time and place of Closing.
DEFAULT.
A.
Should the Town fail to timely perform any obligation of the Town herein, Seller may
terminate this Contract and retain the Earnest Money Deposit as liquidated damages. The Town and
Seller agree and acknowledge that the actual amount of Seller's damages will be difficult to ascertain,
and the total Earnest Money Deposit represents the Town's and Seller's best estimate of the amount
of such damages, and said sums constitute reasonable liquidated damages and are not a penalty.
4
B.
Should Seller fail to timely perform any obligation of Seller herein, including failure
to close for any reason after all conditions to Closing have been satisfied, the Town may give Seller
notice of default and if Seller fails to cure such default within 30 days after receipt of such notice, the
Town may terminate this Contract and obtain a refund of the Earnest Money Deposit, with accrued
interest. In the alternative, the Town shall be entitled to specific performance of this Contract.
10.
WARRANTY. All of the following Paragraphs A through C shall survive Closing and
conveyance of the Property to the Town.
A.
Limited Warranty. Seller does not make any warranty as to any item that is a
"consumer product" as defined in the Magnuson-Moss Warranty Act (15 U.S.C. § 2301). As to each
"consumer product", the only warranties made are those, if any, of the manufacturer and such warrants
that are applicable only to items provided by Seller as standard equipment in the property. Seller
agrees to provide to the Town the limited warranty to be provided by the contractor that will construct
the Buildings, the form of which shall be subject to the Town's approval. The Town acknowledges
and agrees that the limited warranty will be the only warranty provided to the Town by Seller, other
than those expressly set forth in this Contract or in the Special Warranty Deed. Manufacturers of
consumer products and appliances (furnace, water heater, dishwasher, etc.) included with the Property
may provide the Town with separate limited warranties for their products. Except as provided herein,
Seller shall have no responsibility for warranty, service or repair of consumer products.
B.
Non-Habitable Spaces. The Storage Spaces are not designed or constructed as
habitable space. The Town and Seller agree that there is no express warranty or representation made
by Seller as to the habitability of non-habitable spaces.
11.
RESTRICTION ON SALE OF ATTAINABLE HOUSING UNITS. The Town is purchasing
the Buildings containing the Attainable Housing Units to provide affordable housing options to
residents of Winter Park and Grand County. The Town has advised Seller that the Town may elect
to sell the Buildings or individual Attainable Housing Units in the future. However, the Town agrees
that it will not sell any of the individual Attainable Housing Units for a period of six years after
Closing. This restriction on sale shall not result in a deed restriction in the deed transferring the
Buildings to the Town, but instead, shall be a contractual obligation of the Town pursuant to this
Agreement, and enforceable as such. Further, this restriction on sale shall not include any sale of a
Building or Buildings necessary for the Town's financing of the project.
12.
MISCELLANEOUS.
A.
Entire Agreement. This Contract supersedes any and all prior agreements between
the Town and Seller. There are no collateral understandings, representations or agreements other than
those contained herein or expressly agreed to in writing signed by both the Town and Seller. No
employee or agent of Seller of the Town has any authority to modify the terms hereof or to make any
agreements, representations or promises which might postpone, limit, modify, amend or extinguish
the terms of this Contract. No amendment to this Contract shall be effective unless made in writing
and executed by the Town and Seller.
B.
Risk of Loss. Prior to Closing, the risk of loss shall be borne by Seller. In case of
partial or total destruction of the Property, the date of completion may be extended by Seller;
5
provided, however, if completion is delayed beyond two years after the Effective Date of this
Contract, then at the option of either the Town or Seller, this Contract may be terminated by written
notice to the other Party, and upon such termination, all monies paid hereunder to Seller shall be
refunded to the Town with any accrued interest, and both Parties shall be released from any further
obligation hereunder.
C.
Contract.
Time is of the Essence. Time is of the essence in the performance of the terms of this
D.
Assignment. The Town may assign this Contract to the Winter Park Affordable
Housing Corporation or an entity that the Town is required to form in connection with its financing
for the purchase of the Attainable Housing Unit Building and Storage Spaces without first obtaining
the consent of Seller; provided, however, that the Town shall provide Seller a copy of any assignment.
E.
Notices. All notices to Seller or the Town may be served personally or by ordinary
mail at the address of Seller or the Town shown in the first paragraph of this Contract. If served by
ordinary mail, notices shall be deemed served three days after deposit in the mail.
F.
Severability. If any provision of this Contract is ruled invalid or illegal, such ruling
shall have no effect on the remaining provisions which shall be considered legally binding and given
full force and effect.
G.
Survival. The terms and conditions of this Contract shall survive the Closing and shall
not be merged or extinguished by delivery of the deed to the Property.
H.
Seller's Assignment. Seller may assign this Contract to a lending institution in
connection with financing the construction of the Property and the Town agrees to purchase the
Property if the construction is completed in full compliance with the terms of this Contract regardless
of the party who actually completes the construction. Seller shall promptly notify the Town of any
such assignment, in writing.
I.
Liens. The Town shall do nothing which might cause mechanic's liens to be filed
against the Property prior to the Town receiving possession of the Property.
J.
Signatures. Signatures by the Parties delivered via facsimile or email transmission
shall be deemed original signatures for all purposes. This Contract may be signed in counterparts,
each of which shall be deemed to be part of one and the same instrument.
K.
Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the Town not performed during the current fiscal year is
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. To the
extent that any of the Town's obligations under this Contract are deemed to constitute a multi-year
fiscal obligation, the Town's performance will be conditioned upon annual appropriation by the
Town Council, in its sole discretion.
6
L.
Governing Law and Venue. This Contract shall be governed by the laws of the
State of Colorado, and any legal action concerning the provisions hereof shall be brought in Grand
County, Colorado.
M.
No Joint Venture. Notwithstanding any provision hereof, the Town shall never be
a joint venture in any private entity or activity which participates in this Contract, and the Town
shall never be liable or responsible for any debt or obligation of any private entity.
N.
Governmental Immunity. The Town and its officers, attorneys and employees are
relying on, and do not waive or intend to waive by any provision of this Contract, the monetary
limitations or any other rights, immunities, and protections provided by the Colorado
Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to
the Town and its officers, attorneys or employees.
O.
Rights and Remedies. The rights and remedies of the Parties under this Contract
are in addition to any other rights and remedies provided by law. The expiration of this Contract
shall in no way limit the Parties' legal or equitable remedies, or the period in which such remedies
may be asserted for work negligently or defectively performed.
P.
Force Majeure. As used herein, the term "Force Majeure" means any event that
delays, hinders or prevents Seller from continuing construction of the Buildings or site improvements
by reason of strikes, lockouts, labor troubles, inability to procure material, failure of power,
governmental prohibitions or inaction, riots, insurrection, war, unusually harsh winter weather
conditions, or other reason of a like nature not the fault of the Seller or not within the reasonable
control of Seller; provided that the inability to obtain financing or lack of money shall not constitute
Force Majeure.
IN WITNESS WHEREOF, Seller and Town have executed this Contract as of the Effective
Date.
TOWN OF WINTER PARK,
COLORADO
____________________________________
Jimmy Lahrman, Mayor
ATTEST:
__________________________________
Taryn Martin, Town Clerk
7
Seller:
Winter Park Development Co LLC, a
Colorado limited liability company
By:
_________________________________
Name: _________________________________
Title: _________________________________
Date: _________________________________
STATE OF COLORADO
COUNTY OF
)
) ss.
)
The foregoing instrument was subscribed, sworn to and acknowledged before me this ___
day of ________________, 2016, by _______________________ as ______________________
of Winter Park Development Co LLC.
My commission expires:
(S E A L)
____________________________________
Notary Public
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EXHIBIT A
SITE PLAN
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CONSTRUCTION AND SALE CONTRACT
(Parking Structure)
THIS CONSTRUCTION AND SALE CONTRACT (the "Contract") is made and entered
into this _____ day of August, 2016 (the "Effective Date"), between Winter Park Development Co
LLC, a Colorado limited liability company with an address of 1500 Wynkoop Street, Suite 200,
Denver, CO 80202 ("Seller"), and the Town of Winter Park, a Colorado home rule municipality with
a mailing address of 50 Vasquez Road, Winter Park, Colorado 80482 (the "Town") (each
individually a "Party” and collectively the "Parties").
1.
SALE, PURCHASE AND TITLE.
A.
Seller agrees to sell and the Town agrees to purchase the real property and
improvements to be constructed thereon (the "Property") described below on the terms and
conditions as set forth in this Contract:
A parking structure with approximately 144 parking spaces to be constructed on a
portion of the land owned by Seller located in the Town of Winter Park, Colorado, as
shown on Exhibit A attached hereto and incorporated herein by this reference. The
legal description of the Property will be determined upon approval of a subdivision
plat separating the Property from the adjacent land owned by Seller,
With a current project address of 78415 U.S. Highway 40, Winter Park, Colorado, together with all
improvements constructed or to be constructed thereon (the "Parking Structure")..
B.
The Town will take title to the Property in its own name or in the name of a permitted
assignee of this Contract.
C.
The Town will have no obligation to purchase the Property unless and until the Seller
and its tenant have executed a lease for a grocery market within the development of which the
Property is a part.
2.
EARNEST MONEY DEPOSIT. Seller acknowledges receipt from the Town of the sum of
$100,000 (the "Deposit"). The Deposit shall be held by Land Title Guarantee Company, Winter Park
office (the "Title Company") in an interest-bearing account as an earnest money deposit for the
purchase of the Property. The Deposit shall be non-refundable except as specifically provided in this
Contract.
3.
PURCHASE PRICE. The purchase price for the Property shall be $4,500,000. The
Purchase Price shall be paid to Seller by Purchaser at Closing in immediately available funds.
4.
CONSTRUCTION.
A.
General. The Parking Structure shall be constructed in accordance with plans
approved by the Town (the "Approved Plans"). The Purchase Price shall include completion of
construction of the Parking Structure in accordance with the Approved Plans and landscaping that
complies with the applicable requirements of the ordinances of the Town. Issuance of a final
{00533877:3}
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Certificate of Occupancy by the Town shall be conclusive evidence of completion of construction in
accordance with the requirements of this Contract.
C.
Title. The Town shall have no right, title or interest in or to the Property and no right
to possession of the Property or occupancy of the Property until delivery of the deed to the Town,
except the right to purchase the Property.
D.
Inspection. The Town or the Town's representative may inspect the Property at any
reasonable time. The Town shall not instruct construction workers or interfere with construction
workers. The Town shall make a final "walk-through" inspection of the Parking Structure with Seller
not more than seven days and not less than three days prior to Closing. Immediately after the final
inspection, the Town shall deliver to Seller a "punch list" identifying any alleged defects in the
Parking Structure. Seller shall use is best efforts to correct any items on the "punch list" before
Closing. If any punch list or warranty work is to be performed after Closing, the Town shall provide
Seller and its contractors reasonable access to the Property at all times until such work is completed.
E.
Town Work. The Town may not have any construction work performed on the
Property prior to Closing by any person without the written approval of Seller.
F.
Construction Issues. The Town acknowledges and recognizes that inasmuch as the
Town is purchasing the Property during a period of construction and the Property may be completed
prior to the completion of other Properties, streets and common areas on the adjacent land owned by
Seller, there may be certain inconveniences until such construction is completed.
G.
Deadline. Seller agrees to use its best efforts to complete all construction required by
this Contract on or before November 1, 2017, subject to extensions for Force Majeure, unless an
extension is mutually agreed upon by the Parties in writing. Failure of Seller to complete construction
on or before November 1, 2017, shall not be a default hereunder as long as Seller has used its best
efforts to complete construction by such date, subject to extensions for Force Majeure. Regardless of
the foregoing, if Seller fails to complete construction required by this Contract on or before two years
after the Effective Date, the Town may terminate this Contract and the Deposit shall be returned to
the Town, with any accrued interest.
5.
TITLE MATTERS.
A.
Seller shall furnish to the Town, at Seller's expense, a current commitment for owner’s
title insurance policy in an amount equal to the estimated Purchase Price within 30 days of the
effective date of this Contract. The Town shall have the opportunity to inspect the title commitment
before Closing. The Town shall provide Seller notice of objection to title within seven days of
receiving the title commitment. If the Town objects to title for any reason, Seller may elect to either
cure such objection or terminate this Contract within 30 days after receipt of the Town's notice of
objection to title. If Seller elects to terminate this Contract, the Earnest Money shall be returned to
the Town, with interest, and this Contract shall be null and void and of no further force or effect. If
Seller elects to cure the title objection, the title policy issued to the Town after Closing shall not
include the title objection which Seller agreed to cure. If Seller does not receive the Town's notice of
objection to title commitment on or before seven days after the Town's receipt of the title commitment,
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the Town shall be deemed to have accepted the condition of title as disclosed by the title documents
as satisfactory.
B.
Seller will cause the Title Company to provide an updated title commitment to the
Town at least ten days prior to Closing, with the Purchase Price reflected in the updated title
commitment to be based on measurements of the Parking Structure. If the updated title commitment
discloses any title exceptions not shown on the original title commitment and such new title
exceptions materially interfere with the Town's ability to use the Property for its intended purpose,
the Town may terminate this Contract by providing a written notice of termination to Seller within
three business days after receipt of the updated title commitment. If the Town does not deliver such
notice of termination to Seller within such time period, the Town shall be deemed to have accepted
all title exceptions shown on the updated title commitment.
C.
The Parties intend to enter into a maintenance agreement for the Property setting
forth maintenance requirements for all improvements to be located on the Property (the
"Maintenance Agreement"). The executed Maintenance Agreement will be binding on the Town
and all subsequent occupants and owners of the Property or any portion thereof and will constitute
covenants running with the land and equitable servitudes encumbering the Property. The
Maintenance Agreement will include provisions providing that Town has sole responsibility for
maintenance, repair and replacement of the Parking Structure and related improvements on the
Property (including areas such as sidewalks and bike paths and snow storage areas). The executed
Maintenance Agreement will be a permitted exception to title at Closing.
D.
At Closing, Seller and the Town will enter into a parking agreement (the "Parking
Agreement") which will govern the use of the Parking Structure.
6.
CLOSING COSTS, INSURANCE, TAXES.
A.
The Town shall pay the cost of recording and documentary fees in connection with
recording the deed, one-half of the Title Company’s closing fee, the premium for any endorsements
to the Title Policy, the premium for its lender’s title policy (if applicable), and its own attorneys fees.
Seller will pay one-half of the Title Company’s closing fee, real estate taxes and assessments for all
years prior to the year of Closing, and the premium for a standard Owner's Title Policy and its own
attorney fees. Real estate taxes and assessments for the year of Closing, based on the then most recent
levy and then most recent assessment, shall be prorated as of the Closing Date, All prorations shall be
final.
B.
All sums due hereunder at Closing shall be payable in good funds at Closing as
required by Colorado law.
C.
At Closing, Seller shall deliver a special warranty deed to the Town conveying the
Property free and clear of all liens, encumbrances, and restrictions, except those described as
exceptions to title in the title commitment and the approved Maintenance Agreement.
D.
At Closing, the Town shall pay to Seller, by wire transfer or by certified funds, the
unpaid balance of the Purchase Price, the Closing costs, and all other sums payable to Seller
hereunder.
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E.
At Closing, Seller and the Town will execute the approved Parking Agreement.
F.
Possession of the Property described herein shall be delivered to the Town at the time
of Closing. The Property shall not be occupied by the Town prior to Closing, nor shall any personal
property of the Town be stored therein prior to the Closing.
G.
The Town understands that all utilities to the Property shall be changed from Seller's
name, and all such utility charges after the date of Closing shall be the Town's sole expense.
7.
COMMISSION/BROKER. The Town and Seller represent and warrant to each other that
they have not engaged a real estate broker or finder in connection with this transaction. The Town
and Seller agree to defend and hold each other harmless from claims by any broker or finder
inconsistent with this representation and warranty.
8.
CLOSING.
A.
Except as otherwise provided herein, the date of closing shall be five business days
following completion of construction of the Parking Structure, as evidenced by issuance of a final
certificate of occupancy for the Parking Structure.
B.
Seller will convey the Property to Buyer by special warranty deed subject to taxes for
the fiscal year and subject to reservations, restrictions and conditions, if any, rights-of-way and
easements existing on the Property and the Maintenance Agreement.
C.
9.
The Parties shall mutually agree upon the time and place of Closing.
DEFAULT.
A.
Should the Town fail to timely perform any obligation of the Town herein, Seller may
terminate this Contract and retain the Earnest Money Deposit as liquidated damages. The Town and
Seller agree and acknowledge that the actual amount of Seller's damages will be difficult to ascertain,
and the total Earnest Money Deposit represents the Town's and Seller's best estimate of the amount
of such damages, and said sums constitute reasonable liquidated damages and are not a penalty.
B.
Should Seller fail to timely perform any obligation of Seller herein, including failure
to close for any reason after all conditions to Closing have been satisfied, the Town may give Seller
notice of default and if Seller fails to cure such default within 30 days after receipt of such notice, the
Town may terminate this Contract and obtain a refund of the Earnest Money Deposit, with accrued
interest. In the alternative, the Town shall be entitled to seek specific performance of this Contract.
10.
WARRANTY. The following shall survive Closing and conveyance of the Property to the
Town. Seller agrees to provide to the Town the limited warranty to be provided by the contractor that
will construct the Parking Structure, the form of which shall be subject to the Town’s approval. The
Town acknowledges and agrees that the Limited Warranty will be the only warranty provided to the
Town by Seller, other than those expressly set forth in this Contract or in the Special Warranty Deed.
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11.
MISCELLANEOUS.
A.
Entire Agreement. This Contract supersedes any and all prior agreements between
the Town and Seller. There are no collateral understandings, representations or agreements other
than those contained herein or expressly agreed to in writing signed by both the Town and Seller. No
employee or agent of Seller has any authority to modify the terms hereof or to make any agreements,
representations or promises which might postpone, limit, modify, amend or extinguish the terms of
this Contract. No amendment to this Contract shall be effective unless made in writing and executed
by the Town and Seller.
B.
Risk of Loss. Prior to Closing, the risk of loss shall be borne by Seller. In case of
partial or total destruction of the Property, the date of completion may be extended by the Seller;
provided, however, if completion is delayed beyond twenty-four (24) months after the Effective Date
of this Contract, then at the option of either the Town or Seller, this Contract may be terminated by
written notice to the other party, and upon such termination, all monies paid hereunder to Seller shall
be refunded to the Town with any accrued interest, and both Parties shall be released from any further
obligation hereunder.
C.
Contract.
Time is of the Essence. Time is of the essence in the performance of the terms of this
D.
Assignment. The Town may assign this Contract to the Winter Park Affordable
Housing Corporation or an entity that the Town is required to form in connection with its financing
for the purchase of the Parking Structure without first obtaining the consent of Seller; provided,
however, that the Town shall provide Seller a copy of any assignment.
E.
Notices. All notices to Seller or the Town may be served personally or by ordinary
mail at the address of Seller or the Town as shown in the first paragraph of this Contract. If served
by ordinary mail, notices shall be deemed served three days after deposit in the mail.
F.
Severability. If any provision of this Contract is ruled invalid or illegal, such ruling
shall have no effect on the remaining provisions which shall be considered legally binding and given
full force and effect.
G.
Survival. The terms and conditions of this Contract shall survive Closing and shall
not be merged or extinguished by delivery of the deed to the Property.
H.
Seller’s Assignment. Seller may assign this Contract to a lending institution in
connection with financing the construction of the Property and the Town agrees to purchase the
Property if the construction is completed in compliance with the terms of this Contract regardless of
the party who actually completes the construction. Seller shall promptly notify the Town of any such
assignment, in writing.
I.
Liens. the Town shall do nothing which might cause mechanic’s liens to be filed
against the Property prior to the Town receiving possession of the Property.
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J.
Signatures. Signatures by the Parties delivered via facsimile or email transmission
shall be deemed original signatures for all purposes. This Contract may be signed in counterparts,
each of which shall be deemed to be part of one and the same instrument.
K.
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. To the
extent that any of the Town's obligations under this Contract are deemed to constitute a multi-year
fiscal obligation, the Town's performance will be conditioned upon annual appropriation by the
Town Council, in its sole discretion.
L.
Governing Law and Venue. This Contract shall be governed by the laws of the
County, Colorado.
M.
a joint venture in any private entity or activity which participates in this Contract, and the Town
N.
relying on, and do not waive or intend to waive by any provision of this Contract, the monetary
O.
Rights and Remedies. The rights and remedies of the Parties under this Contract
are in addition to any other rights and remedies provided by law. The expiration of this Contract
shall in no way limit the Parties' legal or equitable remedies, or the period in which such remedies
may be asserted for work negligently or defectively performed.
P.
Force Majeure. As used herein, the term "Force Majeure" means any event that
delays, hinders or prevents Seller from construction of the Parking Structure by reason of strikes,
lockouts, labor troubles, inability to procure material, failure of power, governmental prohibitions or
inaction, riots, insurrection, war, unusually harsh winter weather conditions, or other reason of a like
nature not the fault of the Seller or not within the reasonable control of Seller; provided that the
inability to obtain financing or lack of money shall not constitute Force Majeure.
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IN WITNESS WHEREOF, Seller and the Town have executed this Contract as of the
Effective Date.
COLORADO
____________________________________
ATTEST:
__________________________________
Seller:
Winter Park Development Co LLC, a
By:______________________________________
Name: __________________________________
Title: ___________________________________
Date: ____________________________________
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MAINTENANCE AGREEMENT
THIS MAINTENANCE AGREEMENT (the “Agreement”) is made as of this ___ day of
____________, 2017 (the "Effective Date"), by and between WINTER PARK DEVELOPMENT
CO LLC, a Colorado limited liability company (“WPDC LLC”) and the Town of Winter Park, a
Colorado home rule municipality (the “Town”) (each individually a "Party" and collectively the
"Parties").
RECITALS:
A.
WPDC LLC has sold to the Town certain real property located in the Town of
Winter Park, more particularly described on Exhibit A, attached hereto and incorporated herein
by this reference (the “Town Parcel”) and depicted on the Site Plan for Sitzmark South attached
hereto as Exhibit B and incorporated herein by this reference (the “Site Plan”). The overall
development depicted on the Site Plan is sometimes referred to herein as “Sitzmark South”.
B.
WPDC LLC and the Town desire to provide for the operation and maintenance of
the improvements located within the Sitzmark South development.
C.
The Town Parcel is an integral part of Sitzmark South which includes other parcels
as depicted on the Site Plan (the “Adjacent Parcels”) currently owned by WPDC LLC. The
obligations set forth herein are intended for the benefit of the owners and occupants of the
Adjacent Parcels as well as the Town Parcel and are intended to be binding upon the Town,
WPDC LLC, the Town Parcel, the Adjacent Parcels and future owners of the Town Parcel and
the Adjacent Parcels.
NOW, THEREFORE, to establish a plan for the operation and maintenance of the Sitzmark
South development, the Parties hereby agree as follows:
ARTICLE I - DEFINITIONS
Definitions. The following terms shall be defined as follows when used herein:
(a)
"Force Majeure" means an act of God, fire, abnormal weather, explosion,
riot, war, labor disputes, governmental restrictions (other than those adopted by the Town),
terrorism, legal challenge, or any other cause beyond the Town’s reasonable control.
(b)
“Owner” means the record holder of the fee simple interest in the Town
Parcel or an Adjacent Parcel.
ARTICLE II - MAINTENANCE
Section 2.01 Maintenance of Town Parcel. The Town shall be responsible for
maintenance of the Town Parcel for as long as the Town owns all or any portion thereof. The
Town shall keep all improvements located on the Town Parcel in good order, condition, and repair,
clean and free of rubbish and other hazards to persons using such improvements, and in compliance
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with all laws, rules and regulations, orders, and ordinances of governmental agencies having
jurisdiction over the Town Parcel. Maintenance will include, without limitation, the following:
(a)
Maintenance, repair, and resurfacing of the paved surfaces in a level,
smooth, and evenly-covered condition with the type of surfacing material originally
installed on such, or such substitute as will in all respects be equal to it in quality, use,
appearance, and durability, and restriping, when necessary;
(b)
Removal of all snow, papers, debris, filth, and refuse and washing or
thoroughly sweeping Town Parcel as reasonably required to keep the Town Parcel in a
clean and orderly condition;
(c)
Maintenance, repair, and replacement within the Town Parcel of such
appropriate parking area entrances, exits, and directional signs, markers, and lines in
compliance with applicable law;
(d)
Operation, maintenance, repair, and replacement of artificial lighting
facilities, including re-lamping when needed;
(e)
Repainting of striping, markers, lines, directional signs, and restricted area
designations as necessary to maintain same in a first-class condition;
(f)
Maintenance, repair, and replacement of landscaping necessary to maintain
it in first-class condition, including automatic sprinkler systems, water lines, shrubs, and
trees (for example, trees and shrubbery will be properly pruned or otherwise controlled to
prevent any condition of overgrowth);
(g)
Keeping the Town Parcel free from any obstructions not required for their
intended use;
(h)
Payment of all electrical, water, storm sewer, and other utility charges or
fees for services furnished to the Town Parcel;
(i)
Maintenance, repair, and replacement, when necessary, of all retaining
walls, including without limitation all fences, walls, or barricades; and
(j)
Maintenance, repair, and replacement, when necessary, of all storm drains,
sewers, and other utility lines and facilities not dedicated to the public or conveyed to any
public or private utility which are necessary for the operation of the buildings and
improvements located on the Town Parcel.
Section 2.02 Maintenance of Adjacent Parcels. The Owners of the Adjacent Parcels shall
be responsible for maintenance of the Adjacent Parcels. Such Owners shall keep all improvements
located on the Adjacent Parcels in good order, condition, and repair, clean and free of rubbish and
other hazards to persons using such improvements, and in compliance with all laws, rules and
regulations, orders, and ordinances of governmental agencies having jurisdiction over the Adjacent
Parcels. Maintenance will include, without limitation, the following:
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(a)
Maintenance, repair, and resurfacing of the paved surfaces in a level,
smooth, and evenly-covered condition with the type of surfacing material originally
installed on such, or such substitute as will in all respects be equal to it in quality, use,
appearance, and durability, and restriping, when necessary;
(b)
Removal of all snow, papers, debris, filth, and refuse, and washing or
thoroughly sweeping the Adjacent Parcels as reasonably required to keep the Adjacent
Parcels in a clean and orderly condition;
(c)
Maintenance, repair, and replacement within the Adjacent Parcels of such
appropriate parking area entrances, exits, and directional signs, markers, and lines in
compliance with applicable law;
(d)
Operation, maintenance, repair, and replacement of artificial lighting
facilities, including re-lamping when needed;
(e)
Repainting of striping, markers, lines, directional signs, and restricted area
designations as necessary to maintain same in a first-class condition;
(f)
Maintenance, repair, and replacement of landscaping necessary to maintain
it in first-class condition, including automatic sprinkler systems, water lines, shrubs, and
trees (for example, trees and shrubbery will be properly pruned or otherwise controlled to
prevent any condition of overgrowth);
(g)
Keeping the Adjacent Parcels free from any obstructions not required for
their intended use;
(h)
Payment of all electrical, water, storm sewer, and other utility charges or
fees for services furnished to the Adjacent Parcels;
(i)
Maintenance, repair, and replacement, when necessary, of all retaining
walls, including without limitation all fences, walls and barricades; and
(j)
Maintenance, repair, and replacement, when necessary, of all storm drains,
sewers, and other utility lines and facilities not dedicated to the public or conveyed to any
public or private utility which are necessary for the operation of the buildings and
improvements located on the Adjacent Parcels.
Section 2.03 Purpose. The obligations of the Parties under this Agreement include
maintenance, replacement, and reconstruction work as required to preserve the utility of the Town
Parcel and the Adjacent Parcels and all improvements located thereon at the same level and
condition as at the time of completion of the original construction and installation by WPDC LLC.
Section 2.04
Failure to Maintain.
(a)
If the Town fails to provide maintenance services in compliance with the standards
and requirements set forth in this Agreement, WPDC LLC may give written notice to the Town
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describing the maintenance that has not been performed in accordance with the standards and
requirements of this Agreement. Notwithstanding the foregoing, if the Town’s failure to maintain
interferes with the use of any roads, sidewalks, parking structures, or other improvements that are
subject to easements for the benefit of the Adjacent Parcels set forth in the Subdivision Plat, after
written notice to the Town, WPDC LLC may perform such work . If the Town fails to correct
such non-compliance within thirty (30) days after the date of such notice or fails to reimburse
WPDC LLC for the cost of work performed pursuant to the preceding sentence with respect to
improvements subject to the easements set forth in the Subdivision Plat, WPDC LLC may bring
an action for injunctive relief to enforce the provisions of this Agreement which the Town failed
to perform and/or to receive a money judgment for the amount owed by the Town.
(b)
If an Owner of an Adjacent Parcel fails to provide maintenance in compliance with
the standards and requirements set forth in this Agreement, the Town may give written notice to
such Owner describing the maintenance that has not been performed in accordance with the
standards and requirements of this Agreement. If such Owner fails to correct such noncompliance within thirty (30) days after the date of such notice, the Town may bring an action for
injunctive relief to enforce the provisions of this Agreement which such Owner failed to perform
and/or to receive a money judgment for the amount owed to the Town.
ARTICLE III - LIGHTING
It is agreed that the artificial lighting for the Sitzmark South development shall remain on
in compliance with all applicable laws, rules and regulations, orders, and ordinances of
governmental agencies having jurisdiction over the Sitzmark South development.
ARTICLE IV - EFFECT OF SALE BY OWNER
In the event an Owner sells all of its interest in the Town Parcel or an Adjacent Parcel, such
Owner shall thereupon be released and discharged from any and all obligations as an Owner arising
under this Agreement after the sale and conveyance of title, but shall remain liable for all
obligations arising under this Agreement prior to the sale and conveyance of title. The new Owner
(including without limitation any Owner who acquires its interest by foreclosure, trustee’s sale, or
otherwise) shall be liable for all obligations arising under this Agreement from and after the date
of sale and conveyance of title. If an Owner sells its interest in only a portion of the Town Parcel
or an Adjacent Parcel, such Owner shall remain liable for all obligations set forth herein.
ARTICLE V - ESTOPPEL CERTIFICATE
Section 5.01 Estoppel. Each Owner of some or all of the Town Parcel or an Adjacent
Parcel shall, within ten (10) days following written request of an Owner, issue to such other Owner
an estoppel certificate stating at a minimum:
(a)
Whether it knows of any default by the requesting Owner under this
Agreement, and if there are known defaults, specifying the nature thereof;
(b)
Whether to its knowledge this Agreement has been assigned, modified or
amended in any way (and if it has, then stating the nature thereof); and
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(c)
That to its knowledge the Agreement as of that date is in full force and effect
Section 5.02 Costs. If any Owner requests and receives from the Town or any other Owner
more than two (2) such estoppel certificates during any period of twelve (12) successive months,
then the requesting Owner shall reimburse the Town or such other Owner upon demand for the
reasonable costs and expenses incurred in connection with each additional certificate provided by
the Town or the requested Owner.
Section 5.03 Waiver. An estoppel certificate shall constitute and give rise to a waiver
and estoppel of any claim or defense by the party furnishing it to the extent such claim or defense
is based upon facts contrary to those asserted in the certificate which were known to the furnishing
party. However, furnishing an estoppel certificate shall not subject the party furnishing it to any
liability whatsoever (except by preclusion of a defense), notwithstanding the negligent or
otherwise inadvertent failure of such party to disclose correct or relevant information.
ARTICLE VI - GENERAL PROVISIONS
Section 6.01 Binding Effect. This Agreement shall bind and inure to the benefit of any
person acquiring the Town Parcel or any Adjacent Parcel, or any portion thereof or any interest
therein, whether by operation of law or otherwise.
Section 6.02 Term. This Agreement shall have a term of sixty-five (65) years from the
Effective Date, unless earlier terminated as provided herein. This Agreement shall automatically
terminate if the buildings and parking structure existing on the Town Parcel as of the Effective
Date are all removed or destroyed.
Section 6.03 No Invalidity of Mortage Lien. Notwithstanding any of the provisions of
this Agreement, a breach of any of the conditions or covenants contained herein shall not defeat,
affect, or render invalid the lien of any mortgage or deed of trust made in good faith and for value,
but such conditions and covenants shall be binding and effective against any Owner whose title
thereto is acquired by foreclosure, trustee’s sale, or otherwise.
Section 6.04 Covenant Running With the Land. Each term, condition, and covenant of
this Agreement shall be appurtenant to and for the benefit of the Town Parcel and the Adjacent
Parcels. Each term, condition, and covenant respecting the Town Parcel shall be an equitiable
servitude and burden thereon for the benefit of the Adjacent Parcels and each part thereof, and
shall run with the land. Each term, condition and covenant respecting the Adjacent Parcels shall
be an equitable servitude and burden thereon for the benefit of the Town Parcel and each part
thereof, and shall run with the land.
Section 6.05 Notice.
All notices, statements, demands, approvals, or other
communications to be given under or pursuant to this Agreement shall be in writing, addressed to
the Town, WPDC LLC or any Owner at their last known address, and will be delivered in person,
or by certified or registered mail, postage prepaid, return receipt requested, or by overnight
delivery, or by email with a receipt at the recipient’s office verified. The notice will be deemed to
have been given upon receipt.
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Section 6.06 Invalidity of Provision. If any term or provision of this Agreement or the
application of it to any person or circumstance shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term or provision to persons or
circumstances, other than those as to which it is invalid or unenforceable,shall not be affected
thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the
extent permitted by law.
Section 6.07 Captions and Headings. The captions and headings in this Agreement are
for reference only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions, or agreements contained herein.
Section 6.08 Modification and Amendment. This Agreement may only be modified or
terminated, in whole or in part, by written instrument duly executed and acknowledged by the
Parties, and duly recorded in the office of the clerk and recorder of Grand County, Colorado.
Section 6.09 Gender; Singular and Plural. In construing the provisions of this Agreement
and whenever the context so requires, the use of a gender shall include all other genders, the use
of the singular shall include the plural, and the use of the plural shall include the singular.
Section 6.10 Recordation. This Agreement shall be recorded in the office of the Clerk
and Recorder of Grand County, Colorado.
Section 6.11 Subject to Annual Appropriation. Consistent with Article X, § 20 of the
Colorado Constitution, any financial obligation of the Town not performed during the current
fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated,
and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal
year. To the extent that any of the Town's obligations under this Agreement are deemed to
constitute a multi-year fiscal obligation, the Town's performance will be conditioned upon annual
appropriation by the Town Council, in its sole discretion.
Section 6.12 Governing Law and Venue. This Agreement shall be governed by the laws
of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in
Grand County, Colorado.
Section 6.13 No Joint Venture. Notwithstanding any provision hereof, the Town shall
never be a joint venture in any private entity or activity which participates in this Agreement, and
the Town shall never be liable or responsible for any debt or obligation of any private entity.
Section 6.14 Governmental Immunity. The Town and its officers, attorneys and
employees are relying on, and do not waive or intend to waive by any provision of this Agreement,
the monetary limitations or any other rights, immunities, and protections provided by the Colorado
Section 6.15 Entire Agreement. This Agreement supersedes any and all prior agreements
between the Parties. There are no collateral understandings, representations or agreements other
than those contained herein.
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Section 6.16 Force Majeure. When a Party is required to complete or perform any act
under this Agreement by a date certain, if completion or performance cannot be completed in a
timely manner due to Force Majeure, the time for completion shall be extended for a reasonable
period of time.
[signatures on following pages]
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IN WITNESS WHEREOF, the Parties have executed this Maintenance Agreement as of
the Effective Date.
WINTER PARK DEVELOPMENT CO LLC,
a Colorado limited liability
By:__
Name: _______________________
Title: Manager
STATE OF COLORADO
COUNTY OF
)
)ss.
)
The foregoing instrument as acknowledged before me this _____ day of _____________,
2017 by ___________, as manager of Winter Park Development Co LLC, a Colorado limited
liability company.
WITNESS my hand and official seal.
_____________________________
Notary Public
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COLORADO
____________________________________
ATTEST:
__________________________________
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EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT B
SITE PLAN
(to be attached)
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PARKING GARAGE AGREEMENT
(Sitzmark South)
THIS PARKING GARAGE AGREEMENT (Sitzmark South) (the "Agreement"), is made and
entered into this ___ day of ________________, 2017 (the "Effective Date"), by and among
Winter Park Development Co LLC, a Colorado limited liability company (“WPDC"), and the Town
of Winter Park, a Colorado home rule municipality (the "Town") (each individually a "Party" and
collectively, the "Parties").
WHEREAS, WPDC has constructed and conveyed to the Town a two-level parking
structure providing parking for 144 vehicles located adjacent to the Sitzmark South commercial
development (“Sitzmark South”) generally as shown on Exhibit A attached hereto and
incorporated herein by this reference (the “Parking Garage”); and
WHEREAS, WPDC and the Town desire to provide to WPDC, for its use and the use of its
employees, invitees, licensees, customers and tenants, the irrevocable and nonexclusive right to
use 78 unallocated and undesignated parking spaces free and without charge in the Parking
Garage; and
WHEREAS, in recognition of the significant sales tax revenues to be generated by the
commercial businesses to be located in Sitzmark South in the future, the Town has determined
that a parking garage agreement with WPDC, as the holder of fee title to the Sitzmark South
commercial development, will further the health, safety and welfare of the Town and its
residents.
NOW, THEREFORE, in consideration of the mutual covenants contained in this
Agreement, and for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1.
Parking Rights. The Town hereby grants to WPDC the irrevocable and non-exclusive right
to use seventy eight (78) unallocated and undesignated parking spaces in the Parking Garage,
free and without charge at all times, in accordance with this Agreement. The Town agrees that
seventy-eight (78) parking spaces will be subject to a time limit of two hours at all times (the
“Time Limited Parking Spaces”). The Town agrees to enforce such time limit in the same manner
as the Town enforces parking restrictions throughout the Town. Sixty-seven (67) Time Limited
Parking Spaces are located on the top level of the Parking Garage and eleven (11) Time Limited
Parking Spaces are located on the lower level of the Parking Garage. The remaining spaces in
the lower level of the Parking Garage may be reserved for use by the residents of the Townowned residential buildings located east of the Parking Garage (the “Residential Parking
Spaces”). Such parking spaces may be used by WPDC and its employees, invitees, licensees,
customers and tenants, in common with others entitled to use the same, subject to the foregoing
time restrictions related to the Time Limited Parking Spaces and user restrictions related to the
Residential Parking Spaces. Pedestrians shall be able to travel to and from their vehicles in the
Parking Garage. The rights granted herein shall not be an encumbrance on the Parking Garage
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1
or any other property owned by the Town, but shall be binding on any successor owner of the
Parking Garage.
2.
Term and Termination.
a.
Initial Term. Subject to the Town's right to terminate as described below, the
initial term of this Agreement shall be twenty five (25) years from the Effective Date (the "Initial
Term").
b.
Renewal Term. WPDC may renew this Agreement for one additional term of
twenty five (25) years (the "Renewal Term") by providing the Town written notice exercising its
option to renew at least 90 days prior to expiration of the Initial Term.
3.
Replacement Obligation. If, during the Initial Term or the Renewal Term, the Town is
unable to provide free access to and parking for seventy eight (78) vehicles in the Parking Garage
as required by this Agreement for more than five (5) consecutive days, the Town, at the Town's
expense, shall provide WPDC with seventy eight (78) replacement parking spaces, in one or more
locations within a radius of one thousand three hundred twenty (1,320) feet of Sitzmark South,
for the remainder of the Initial Term or Renewal Term or until the spaces in the Parking Garage
become available again. The replacement obligation in this Section shall expire upon the
expiration of the Initial Term or the Renewal Term, whichever is in effect at the time such
replacement obligation arises.
4.
Operation.
a.
Maintenance. During the Initial Term and the Renewal Term, if any, the Town
shall be responsible for all costs of maintenance, repair and improvement of the Parking Garage
and access to the Parking Garage. Maintenance shall include grounds care, security,
snowplowing, trash removal and insurance.
b.
Hours. The Town shall allow parking in the Parking Garage from 6:00 a.m. until
2:00 a.m. the following day, 365 days per year; provided that the Town may close the Parking
Garage or any portion thereof for maintenance and repair for up to seven (7) days each year. The
Town shall use its best efforts to schedule any closing during the off-season. Except in an
emergency, the Town shall provide WPDC with at least thirty (30) days prior written notice of the
scheduled closing dates.
c.
Fee. Commencing on December 31, 2017 and each December 31 st thereafter,
WPDC shall pay the Town an annual maintenance fee. On December 31, 2015, the fee shall be
$4,400, and the fee shall increase by $100 each year that this Agreement remains in effect.
5.
Parking Requirements. If the proposed uses of office, retail and/or restaurant in Sitzmark
South as identified on Exhibit B attached hereto and incorporated herein by this reference (the
“Sitzmark South Uses”) do not change to any other uses which would require more parking
spaces pursuant to the Winter Park Municipal Code and the total square footage of any proposed
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use does not change by more than 20%, the Town shall not increase the parking requirements
for Sitzmark South during the Initial Term or the Renewal Term. Notwithstanding the foregoing,
upon a physical change in Sitzmark South, or a change in proposed Sitzmark South Uses, that
increases the square footage of the Sitzmark South Uses, the Town reserves the right to require
additional parking spaces in accordance with the Winter Park Municipal Code.
6.
Miscellaneous.
a.
Governing Law and Venue. This Agreement shall be governed by the laws of the
County, Colorado.
b.
No Waiver. Delays in enforcement or the waiver of any one or more defaults or
breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms
or obligation of this Agreement.
c.
Integration. This Agreement constitutes the entire agreement between the
Parties, superseding all prior oral or written communications.
d.
Third Parties. There are no intended third-party beneficiaries to this Agreement
except the current and future commercial tenants in Sitzmark South who are intended thirdparty beneficiaries of this Agreement.
e.
Notice. Any notice under this Agreement shall be in writing, and shall be deemed
sufficient when directly presented or sent pre-paid, first class United States Mail to the party at
the address set forth on the signature page of this Agreement. Either Party may change its
address for notices by providing written notice of such change to the other Party at the then
current notice address of such Party.
f.
Severability. If any provision of this Agreement is found by a court of competent
jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall
remain in full force and effect.
g.
the Parties.
Modification. This Agreement may only be modified upon written agreement of
h.
Assignment. Neither this Agreement nor any of the rights or obligations of the
Parties hereto, shall be assigned by either Party without the written consent of the other;
provided, however upon the sale or other transfer of ownership of an undivided interest in any
portion of Sitzmark South from time to time, to any persons or entities, the purchasers or
transferees of such an interest shall be deemed to be the successor to WPDC for purposes of this
Agreement only if designated as the transferee of WPDC in an instrument executed by WPDC and
such transferee that is provided to the Town. Upon delivery of such instrument to the Town, all
the rights and obligations of WPDC under this Agreement shall be deemed assigned to and
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assumed by such purchaser or transferee, as appropriate, effective as of the effective date of
such sale or other transfer of ownership, and such sale or other transfer of ownership, and such
assignment and assumption shall not require the Town’s consent thereto, but such assignment
and assumption shall require written notice to the Town.
i.
relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary
j.
Rights and Remedies. The rights and remedies of the Town and WPDC under this
Agreement are in addition to any other rights and remedies provided by law. The expiration of
this Agreement shall in no way limit the Town's or WPDC’s legal or equitable remedies, or the
period in which such remedies may be asserted.
k.
subject to annual appropriation, shall extend only to monies currently appropriated and shall not
constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year.
l.
Binding Effect. This Agreement shall be binding upon the Parties and their officers,
employees, agents, successors and assigns.
m.
a joint venture in any private entity or activity which participates in this Agreement, and the Town
WHEREFORE, the Parties have executed this Parking Agreement (Sitzmark South) as of
the Effective Date.
TOWN OF WINTER PARK, COLORADO
____________________________________
ATTEST:
__________________________________
Address:
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50 Vasquez Road
Winter Park, Colorado 80482
4
Signature Page for Parking Agreement (Sitzmark South)
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5
WINTER PARK DEVELOPMENT CO LLC, a
By:
___________________________________
Byron Besse, Jr., Manager
Address: 1500 Wynkoop Street, Suite 200
Denver, Co 80202
STATE OF COLORADO
COUNTY OF
)
) ss.
)
The foregoing instrument was subscribed, sworn to and acknowledged before me this ___
day of ________________, 2017, by Byron Besse, Jr. as the Manager of Winter Park Development
Co LLC, a Colorado limited liability company, on behalf of the company.
(S E A L)
____________________________________
Notary Public
Signature Page for Parking Agreement (Sitzmark South)
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EXHIBIT A
SITE PLAN
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EXHIBIT B
PROPOSED COMMERCIAL USES AT SITZMARK SOUTH
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MEMORANDUM
To:
From:
Date:
Re:
Town Council
Drew Nelson, Town Manager
August 2, 2016
Site Lease Agreement, Lease Purchase Agreement, and Ordinance 499 – for Construction of the
Hideaway Park Stage
BACKGROUND
In conjunction with the approved Guaranteed Maximum Price and contract with Big Valley Construction for
the construction of the Hideaway Park Stage, the Town of Winter Park is looking to finance the
approximately $3.4M funding for stage construction via a Certificate of Participation. The Town has been
working with Centennial Bank and Trust to secure this funding, and a step in the process is approval of a
Site Lease Agreement, a Lease Purchase Agreement, and Ordinance 499 (all attached).
ANALYSIS
These agreements do three things: 1) lease the Hideaway Park Stage property to UMB Bank, acting as
Trustee of funds received from the sale of the Certificates of Participation; 2) lease the Hideaway Park
Stage property back from UMB Bank in exchange for payments (i.e. Lease-Purchase) that pay down the
Certificates of Participation; and 3) authorize the Mayor, the Town Manager, and the Finance Director to
execute these documents and others related to the term sheet prepared by Centennial Bank and Trust to
secure the funding and identify the payback schedule.
The form of these agreements and Ordinance was prepared by Butler Snow, acting as bond counsel to the
Town of Winter Park. These agreements and Ordinance have been reviewed and approved for your
consideration by the Town Attorney as well.
RECOMMENDATION
Town staff recommends approval of the Site Lease Agreement, the Lease Purchase Agreement, and
Ordinance 499 to be enacted via three separate motions by the Winter Park Town Council:
Site Lease Agreement
I move to approve the Site Lease Agreement between the Town of Winter Park, as Lessor, and UMB Bank,
N.A., as Lessee with the following findings of fact:


The Site Lease Agreement is necessary to secure funding for construction of the Hideaway Park
Stage; and
and guests.
Alternative Motion
In the event the Town Council wishes to deny the Site Lease Agreement, staff recommends the Town
I move to deny the Site Lease Agreement between the Town of Winter Park, as Lessor, and UMB Bank,
N.A, as Lessee due to the following findings of fact:

______________________________
Lease Purchase Agreement
I move to approve the Lease Purchase Agreement between UMB Bank, N.A., as Lessor, and the Town of
Winter Park, Colorado, as Lessee with the following findings of fact:


The Lease Purchase Agreement is necessary to secure funding for construction of the Hideaway
Park Stage; and
and guests.
Alternative Motion
In the event the Town Council wishes to deny the Lease Purchase Agreement, staff recommends the Town
I move to deny the Lease Purchase Agreement between UMB Bank, N.A., as Lessor, and the Town of
Winter Park, Colorado, as Lessee due to the following findings of fact:

______________________________
Ordinance 499
I move to approve Ordinance 499, Series of 2016, on first reading, and order publishing in full as prescribed
in the Winter Park Municipal Code, with a second reading and public hearing scheduled for Tuesday,
August 16th, at 8:00 a.m.
Alternative Motion
In the event the Town Council wishes to deny Ordinance 499, staff recommends the Town Council make
the following motion:
I move to deny Ordinance 499, Series of 2016, due to the following findings of fact:

______________________________
AFTER RECORDATION PLEASE RETURN TO:
Butler Snow LLP
1801 California Street, Suite 5100
Denver, Colorado 80202
Attention: Sarah P. Tasker, Esq.
Pursuant to Section 39-13-104(1)(j), Colorado Revised Statutes, this Site and Improvement Lease is exempt from
the documentary fee.
SITE LEASE AGREEMENT
DATED AS OF AUGUST __, 2016
BETWEEN
AS LESSOR
AND
UMB BANK, N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE,
AS LESSEE
This SITE LEASE AGREEMENT, dated as of August __, 2016 (this “Site Lease”), is
by and between the TOWN OF WINTER PARK, COLORADO, a home rule municipality duly
organized and validly existing under the Constitution and laws of the State of Colorado (the
“Town”), as lessor, and UMB BANK, N.A., Denver, Colorado, a national banking association duly
organized and validly existing under the laws of the United States of America, solely in its
capacity as trustee under the Indenture (the “Trustee”), as lessee.
PREFACE
Unless the context otherwise requires, capitalized terms used herein shall have the
meanings ascribed to them herein and in the Lease Purchase Agreement, dated as of August __,
2016 (the “Lease”), between the Trustee, as lessor, and the Town, as lessee.
RECITALS
1.
The Town is a duly organized and existing home rule municipality of the State of
Colorado, created and operating pursuant to Article XX of the Constitution of the State of
Colorado and the home rule charter of the Town (the “Charter”).
2.
Pursuant to Section 1.4 of the Charter, the Town may acquire property for any
purpose deemed by the Town Council of the Town (the “Council”) to be in the Town’s best
interest by purchase, gift, lease or condemnation and may sell, lease, mortgage, hold, manage
and control such property as the Council may determine.
3.
Pursuant to Section 10.10 of the Charter, the Council may enter into leasepurchase agreements and installment-purchase agreements as a means of acquiring any real or
personal property.
4.
Pursuant to Section 13.3 of the Charter, the Council may sell, exchange or dispose
of permanent public buildings or real property by ordinance and may mortgage or encumber
permanent public buildings or real property by ordinance.
5.
Pursuant to Section 13.4 of the Charter, the Council may enter into a lease or
lease-option for such time as Council shall determine, for real or personal property to or from
any person, firm or corporation, public or private, governmental or otherwise by ordinance or
resolution.
6.
The Town is authorized by Article XX, Section 6 of the Colorado Constitution
and Part 8 of Article 15 of Title 31, Colorado Revised Statutes (“C.R.S.”), to enter into rental or
leasehold agreements in order to provide necessary land, buildings, equipment and other property
for governmental or proprietary purposes.
7.
The Council has determined that it is in the best interest of the Town to finance
the acquisition, construction and installation of a new stage in Hideaway Park (the “Project”).
8.
The Council has determined that it is in the best interests of the Town to provide
for the financing the Project by entering into this Site Lease and the Lease.
1
9.
(the “Site”).
The Project will be located on certain real property owned in fee title by the Town
10.
To finance the acquisition, construction and installation of the Project, (a) the
Town will lease the Site to the Trustee pursuant to this Site Lease, (b) the Project will be
constructed on the Site with the net proceeds of the Certificates (hereinafter defined), (c) the
Project will initially be owned by the Trustee, solely in its capacity as Trustee under the
Indenture; and (d) the Trustee will sublease the Site and lease the buildings and premises located
thereon, including the Project (collectively, the “Leased Property”) to the Town pursuant to the
Lease.
11.
The Trustee and the Town intend that this Site Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the Trustee is
leasing the Site from the Town.
12.
Contemporaneously with the execution and delivery of this Site Lease and the
Lease, the Trustee will execute and deliver an Indenture of Trust (the “Indenture”) pursuant to
which there is expected to be executed and delivered certain certificates of participation (the
“Certificates”) dated as of their date of delivery that shall evidence proportionate interests in the
right to receive certain Revenues (as defined in the Lease), shall be payable solely from the
sources therein provided and shall not directly or indirectly obligate the Town to make any
payments beyond those appropriated for any fiscal year during which the Lease shall be in effect.
13.
The net proceeds of the Certificates will be used to finance the costs of
acquisition, construction and installation of the Project, as well as for the payment of the costs of
issuance related thereto.
14.
The Town proposes to enter into this Site Lease with the Trustee as material
consideration for the Trustee’s agreement to lease the Leased Property to the Town pursuant to
the Lease. The Trustee shall prepay in full its rental payments due under this Site Lease which
rental payments shall be used by the Town to finance the Project and the costs of issuance, all
pursuant to this Site Lease, the Lease and the Indenture.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows;
Section 1.
Site Lease and Terms. The Town hereby demises and leases to the
Trustee and the Trustee hereby leases from the Town, on the terms and conditions hereinafter set
forth, the Site, subject to Permitted Encumbrances as described in Exhibit B hereto.
The term of this Site Lease shall commence on the date hereof and shall end on
December 31, 2036 (the “Site Lease Termination Date”), unless such term is sooner terminated
as hereinafter provided. If, prior to the Site Lease Termination Date, the Trustee has transferred
and conveyed the Trustee’s interest in all of the Leased Property pursuant to Article 12 of the
Lease as a result of the Town’s payment of (a) the applicable Purchase Option Price thereunder;
or (b) all Base Rentals and Additional Rentals, all as further provided in Section 12.2 of the
Lease, then the term of this Site Lease shall end in connection with such transfer and
conveyance.
2
The term of any sublease of the Leased Property or any portion thereof, or any
assignment of the Trustee’s interest in this Site Lease, pursuant to Section 5 hereof, the Lease
and the Indenture, shall not extend beyond December 31, 20__. At the end of the term of this
Site Lease, all right, title and interest of the Trustee, or any sublessee or assignee, in and to the
Leased Property, shall terminate. Upon such termination, the Trustee and any sublessee or
assignee shall execute and deliver to the Town any necessary documents releasing, assigning,
transferring and conveying the Trustee’s, sublessee’s or assignee’s respective interests in the
Leased Property.
Section 2.
Rental. The Town acknowledges that the following constitutes full and
adequate consideration for conveyance of the leasehold interest in the Site conveyed to the
Trustee pursuant to this Site Lease: (1) the Trustee has paid to the Town and the Town hereby
acknowledges receipt from the Trustee the sum of $10.00 and (2) there has been deposited to the
Construction Fund $_____ in order to finance the Project, which will be leased to the Town
Town pursuant to the Lease. The Project has an estimated useful life of __ years, which exceeds
the maximum term of this Site Lease.
Section 3.
Purpose. The Trustee shall use the Site solely for the purpose of leasing
the Leased Property back 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 Lease Default and the termination of the Lease, the Town shall vacate the Leased
Property, as provided in the Lease, and the Trustee may exercise the remedies provided in this
Site Lease, the Lease and the Indenture.
Section 4.
Owner in Fee. The Town represents that (a) it is the owner in fee of the
Site, subject only to Permitted Encumbrances as described in Exhibit B hereto, and (b) the
Permitted Encumbrances do not and shall not interfere in any material way with the Site. The
Trustee acknowledges that it is obtaining a leasehold interest in the Site pursuant to this Site
Lease. The Town and the Trustee acknowledge that the Trustee, solely in its capacity as Trustee
under the Indenture, will initially own the Project that will be constructed on the Site, subject to
the terms and provisions of this Site Lease and the Lease.
Section 5.
Sales, Assignments and Subleases. Unless an Event of Nonappropriation
or an Event of Lease Default shall have occurred and be continuing, and except as may otherwise
be provided in the Lease, the Trustee may not sell or assign its rights and interests under this Site
Lease or sublet all or any portion of the Leased Property, without the prior written consent of the
Town.
In the event that (a) the Lease is terminated for any reason and (b) this Site Lease is not
terminated, the Trustee may sublease the Leased Property or any portion thereof, or sell or assign
the Trustee’s leasehold interests in this Site Lease, pursuant to the terms of the Lease and the
Indenture, and any purchasers from or sublessees or assignees of the Trustee may sell or assign
its respective interests in the Leased Property, subject to the terms of this Site Lease, the Lease
and the Indenture. The Town and the Trustee (or any purchasers from or assignees or sublessees
of the Trustee) agree that, except as permitted by this Site Lease, the Lease and the Indenture and
except for Permitted Encumbrances (including purchase options under the Lease), neither the
Town, the Trustee, nor any purchasers from or sublessees or assignees of the Trustee will sell,
3
mortgage or encumber the Leased Property or any portion thereof during the term of this Site
Lease.
The Trustee and any other person who has the right to use the Leased Property under this
Site Lease, at its own expense, may install equipment and other personal property in or on any
portion of the Leased Property unless it is permanently affixed to the Leased Property or removal
of it would materially damage the Leased Property, in which case it will become part of the
Leased Property.
Section 6.
Right of Entry. The Town reserves the right, so long as no Event of
Nonappropriation or Event of Lease Default shall have occurred and is continuing, 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 7.
Termination. The Trustee agrees, upon the termination of this Site Lease,
to quit and surrender all of the Leased Property, and agrees that any permanent improvements
and structures existing upon the Leased Property at the time of the termination of this Site Lease
shall remain thereon.
Section 8.
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 Certificates
are Outstanding and unpaid under the Indenture, the Base Rentals due under the Lease shall
continue to be paid to the Trustee except as otherwise 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 1 hereof.
Section 9.
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 Indenture, and the Town hereby
acknowledges that the Trustee shall have a leasehold interest in all improvements or additions to
be built on the Leased Property subject to this Site Lease, the Lease and the Indenture.
Section 10. Trustee’s Disclaimer. It is expressly understood and agreed that (a) this
Site Lease is executed by UMB Bank, n.a. solely in its capacity as Trustee under the Indenture,
and (b) nothing herein shall be construed as creating any liability on UMB Bank, n.a. other than
in its capacity as Trustee under the Indenture. All financial obligations of the Trustee under this
Site Lease, except those resulting from its willful misconduct or negligence, are limited to the
Trust Estate.
Section 11. Taxes; Maintenance; Insurance. During the Lease Term of the Lease
and in accordance with the provisions of the Lease, including Sections 9.1 and 9.3 thereof, the
Town covenants and agrees to pay any and all taxes, assessments or governmental charges due in
respect of the Leased Property and all maintenance costs and utility charges in connection with
4
the Leased Property. In the event that (a) the Lease is terminated for any reason, (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 interests in this Site Lease, the Trustee, or any purchaser, sublessee or
assignee of the Leased Property (including the leasehold interests of the Trustee resulting from
this Site Lease) shall pay or cause to be paid when due, all such taxes, assessments or
governmental charges and maintain the Leased Property in good condition and working order.
Any such payments that are to be made by the Trustee shall be made solely from (a) the proceeds
of such sale, subleasing or assignment, (b) from the Trust Estate, or (c) from other moneys
furnished to the Trustee under Section 8.02(m) of the Indenture, and in the absence of available
moneys identified in the preceding clauses (a) through (c), the Trustee shall be under no
obligation to pay or cause to be paid when due, all such taxes, assessments or governmental
charges and maintain the Leased Property in good condition and working order.
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, (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 in this Site Lease, the Trustee, or any
sublessee, purchaser or assignee of the Leased Property shall obtain and keep in force, (i)
commercial general 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 $_______
and (ii) property insurance in an amount not less than the full replacement value of the Leased
Property. Any such insurance that is to be obtained by the Trustee shall be paid for solely from
(a) the proceeds of such subleasing, sale or assignment, (b) from the Trust Estate, or (c) from
moneys furnished to the Trustee under Section 8.02(m) of the Indenture and in the absence of
available moneys identified in the preceding clauses (a) through (c), the Trustee shall be under
no obligation to obtain or keep in force such insurance coverages. All such insurance shall name
the Trustee, any sublessee, purchaser or assignee and the Town as insured and the Trustee as loss
payee. The Town and the Trustee shall waive any rights of subrogation with respect to the
Trustee, any sublessee, purchaser or assignee, and the Town, and their members, 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.
Nothing in the preceding paragraphs or in this Site Lease shall be interpreted or construed
to require the Trustee to sublease all or any portion of the Leased Property or sell or assign its
interests in this Site Lease, in the event that the Lease is terminated for any reason and this Site
Lease is not terminated.
Section 12. 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, the Town and the Trustee, or any sublessee, purchaser or assignee of the Leased
Property from the Trustee shall cause the Net Proceeds of any insurance claim or condemnation
award to be applied in accordance with the provisions of Article 10 of the Lease.
5
Section 13. Hazardous Substances. Except for customary materials necessary for
operation, cleaning and maintenance of the Leased Property, none of the Town, the Trustee or
any sublessee, purchaser or assignee of the Leased Property from the Trustee shall cause or
permit any Hazardous Substance to be brought upon, generated at, stored or kept or used in or
about the Leased Property without prior written notice to the Town and the Trustee and all
Hazardous Substances, including customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, will be used, kept and stored in a manner that
complies with all laws regulating any such Hazardous Substance so brought upon or used or kept
on or about the Leased Property, provided unless the Trustee has exercised its right to take
possession of the Leased Property after the occurrence and continuance of an Event of Lease
Default, the Trustee shall have no responsibility under this Section to monitor or investigate
whether the Lease Property complies with environmental laws or is subject to any Hazardous
Substance. If the presence of Hazardous Substance on the Leased Property caused or permitted
by the Town, the Trustee or any sublessee, purchaser or assignee of the Leased Property from the
Trustee, as the case may be, results in contamination of the Leased Property, or if contamination
of the Leased Property by Hazardous Substance otherwise occurs for which the Town, the
Trustee or any sublessee or assignee of the Leased Property, as the case may be, is legally liable
for damage resulting therefrom, then the Town, the Trustee or any sublessee, purchaser or
assignee of the Leased Property from the Trustee, as the case may be, shall reimburse the other
party for its reasonable and necessary legal expenses to defend the parties hereto or assignees
hereof that have not caused or permitted such contamination and are not so legally liable with
respect to this Site Lease from claims for damages, penalties, fines, costs, liabilities or losses;
provided that the cost of such defense, (a) in the case of the Trustee, shall be payable solely from
the Trust Estate, or (b) in the case of the Town, shall be payable only if the cost of such defense
has been annually appropriated by the Town. This duty to reimburse legal expenses is not an
indemnification. It is expressly understood that none of the Town, the Trustee or any sublessee,
purchaser or assignee is indemnifying any other person with respect to this Site Lease. Without
limiting the foregoing, if the presence of any Hazardous Substance on the Leased Property
caused or permitted by:
(a)
the Trustee after the Trustee has exercised its right to take possession of
the Leased Property after the occurrence and continuance of an Event of Lease Default,
or any sublessee, purchaser or assignee of the Leased Property from the Trustee, as the
case may be, results in any contamination of the Leased Property, the Trustee or any
sublessee, purchaser or assignee of the Leased Property from the Trustee, as the case may
be, shall provide prior written notice to the Town and the Trustee and promptly take all
actions, solely at the expense of the Trust Estate as are necessary to effect remediation of
the contamination in accordance with legal requirements; or
(b)
the Town, results in any contamination of the Leased Property, the Town
shall provide prior written notice to the Trustee and promptly take all actions, solely at
the expense of the Town, which expenses shall constitute Additional Rentals, as are
necessary to effect remediation of the contamination in accordance with legal
requirements.
Section 14. Third Party Beneficiaries. It is expressly understood and agreed that the
Owners of the outstanding Certificates are third party beneficiaries to this Site Lease and
6
enforcement of the terms and conditions of this Site Lease, and all rights of action relating to
such enforcement, shall be strictly reserved to the Town, as Lessor, and the Trustee, as Lessee,
and their respective successors and assigns, and to the Owners of the Certificates. Except as
hereinafter provided, nothing contained in this Site Lease shall give or allow any such claim or
right of action by any other or third person on this Site Lease. It is the express intention of the
Town and the Trustee that any person other than the Town, the Trustee or the Owners of the
Certificates receiving services or benefits under this Site Lease shall be deemed to be an
incidental beneficiary only.
Section 15. Amendments. This Site Lease may only be amended, changed, modified
or altered with the prior written consent of the Town and the Trustee and in accordance with the
provisions of the Indenture. So long as Centennial Bank & Trust, or its successors (the “Initial
Purchaser”) is the registered Owner of all outstanding Certificates, this Site Lease may not be
materially amended, changed, modified or altered without the prior written consent of the Initial
Purchaser, which consent shall not be unreasonably withheld.
Section 16. Right of Initial Purchaser to Direct Remedies. Notwithstanding any
provisions to the contrary contained herein, so long as the Initial Purchaser is the registered
Owner of all outstanding Certificates, the Initial Purchaser shall have the right to direct all
remedies taken by the Trustee hereunder. Before taking any such action as directed by the Initial
Purchaser, the Trustee shall be entitled to the indemnification provided in the Indenture.
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.
Section 18. 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 19. 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 shall be made 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, or in such other manner as
authorized by the Town or the Trustee, as the case may be.
Section 20. Recitals. The Recitals set forth in this Site Lease are hereby incorporated
by this reference and made a part of this Site Lease.
7
Section 21. 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 22. 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.
Section 23. Governing Law. This Site Lease shall be governed by and construed in
accordance with the law of the State of Colorado without regard to choice of law analysis.
Section 24. No Waiver of Governmental Immunity. No provision of this Site Lease
shall act or be deemed to be a waiver by the Town of the Colorado Governmental Immunity Act,
CRS 24-10-101,et seq.
Section 25. Electronic Transactions. The parties hereto agree that the transactions
described herein may be conducted and related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action or suit in the appropriate court of law.
Section 26. Annual Appropriation. Consistent with Article X, §20 of the Colorado
Constitution, any financial obligation of the Town under this Site Lease shall be from year to
year only, shall be subject to annual appropriation, shall extend only to monies currently
appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond
the current fiscal year. To the extent that any of the Town's obligations under this Site Lease are
deemed to constitute a multiple fiscal-year financial obligation, the Town’s performance will be
conditioned upon annual appropriation by the Council, in its sole discretion.
8
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 WINTER PARK, COLORADO,
as Lessor
UMB BANK, N.A., solely in its capacity as
Trustee under the Indenture, as Lessee
By:
By:
Leigh Lutz, Senior Vice President
[SEAL]
ATTEST:
____________________________________
9
STATE OF COLORADO
COUNTY OF GRAND
)
)
) SS.
)
TOWN OF WINTER PARK
)
The foregoing instrument was acknowledged before me this ___ day of ___________,
2016, by Jimmy Lahrman and Taryn Martin, as Mayor and Town Clerk, respectively, of the
Town of Winter Park, Colorado.
(SEAL)
____________________________________
Notary Public
************************
)
) ss.
CITY AND COUNTY OF DENVER)
STATE OF COLORADO
The foregoing instrument was acknowledged before me this _____ day of ___________,
2016, by Leigh Lutz, as Senior Vice President of UMB Bank, n.a., as Trustee.
(SEAL)
____________________________________
Notary Public
10
EXHIBIT A
LEGAL DESCRIPTION OF THE SITE
The legal description of the Site is set forth below:
Tract B, Riverwalk at Winter Park, according to the Plat thereof filed March 17, 2000, at
Reception No. 2000-002589.
A-1
EXHIBIT B
PERMITTED ENCUMBRANCES
“Permitted Encumbrances” means, as of any particular time: (a) liens for taxes and
assessments not then delinquent, or liens which may remain unpaid pending contest pursuant to
the provisions of the Lease; (b) this Site Lease, the Lease, the Indenture and any related fixture
filing and any liens arising or granted pursuant to the Lease or the Indenture; (c) utility, access
and other easements and rights of way, licenses, permits, party wall and other agreements,
restrictions and exceptions which the Mayor or the Town Representative certifies will not
materially interfere with or materially impair the Leased Property, including rights or privileges
in the nature of easements, licenses, permits and agreements as provided in the Lease; and (d) the
easements, covenants, restrictions, liens and encumbrances (if any) to which title to the Leased
Property was subject when leased to the Trustee pursuant to this Site Lease, as shown below and
which do not interfere in any material way with the Leased Property.
The easements, covenants, restrictions, liens and encumbrances (if any) to which title to
the Leased Property was subject when leased to the Trustee pursuant to this Site Lease are as
follows:
1.
Liens for ad valorem taxes and special assessments not then delinquent, if
applicable.
2.
This Site Lease.
3.
The Lease.
4.
All other encumbrances appearing of record on the date hereof.
B-1
AFTER RECORDATION PLEASE RETURN TO:
Butler Snow LLP
1801 California Street, Suite 5100
Denver, Colorado 80202
Attention: Sarah P. Tasker, Esq.
Pursuant to Section 39-13-104(1)(j), Colorado Revised Statutes, this Lease Purchase Agreement
is exempt from the documentary fee
LEASE PURCHASE AGREEMENT
DATED AS OF AUGUST __, 2016
BETWEEN
UMB BANK, N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE IDENTIFIED HEREIN,
AS LESSOR
AND
AS LESSEE
This Table of Contents is not a part of this Lease and is only for convenience of
reference.
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS ........................................................................................................... 3
Section 1.1
Section 1.2
Certain Funds and Accounts. .............................................................................. 3
Definitions........................................................................................................... 3
ARTICLE 2 REPRESENTATIONS AND COVENANTS.......................................................... 11
Section 2.1
Section 2.2
Section 2.3
Section 2.4
Section 2.5
Representations and Covenants of the Town. ................................................... 11
Representations and Covenants of the Trustee. ................................................ 12
Nature of Lease. ................................................................................................ 13
Town Acknowledgment of Certain Matters. .................................................... 13
Relationship of Town and Trustee. ................................................................... 14
ARTICLE 3 LEASE OF THE LEASED PROPERTY ................................................................ 15
ARTICLE 4 LEASE TERM ......................................................................................................... 16
Section 4.1
Section 4.2
Duration of Lease Term. ................................................................................... 16
Termination of Lease Term. ............................................................................. 17
ARTICLE 5 ENJOYMENT OF THE LEASED PROPERTY ..................................................... 18
Section 5.1
Section 5.2
Trustee’s Covenant of Quiet Enjoyment........................................................... 18
Town’s Need for the Leased Property; Determinations as to Fair Value and Fair
Purchase Price. .................................................................................................. 18
ARTICLE 6 PAYMENTS BY THE TOWN ................................................................................ 19
Section 6.1
Section 6.2
Section 6.3
Section 6.4
Section 6.5
Section 6.6
Payments to Constitute Currently Budgeted Expenditures of the Town. ......... 19
Base Rentals, Purchase Option Price and Additional Rentals. ......................... 19
Manner of Payment. .......................................................................................... 20
Nonappropriation. ............................................................................................. 21
Holdover Tenant. .............................................................................................. 22
Prohibition of Adverse Budget or Appropriation Modifications. ..................... 22
ARTICLE 7 LEASING OF THE SITE; ACQUISITION, CONSTRUCTION AND
IMPROVEMENT OF THE PROJECT ........................................................................................ 23
Section 7.1
Section 7.2
Section 7.3
Section 7.4
Leasing of the Site; Acquisition, Construction and Improvement of the Project.
........................................................................................................................... 23
Disbursements for Costs of the Project. ............................................................ 24
Completion of Construction. ............................................................................. 24
Title Insurance. ................................................................................................. 25
i
Section 7.5
Section 7.6
Section 7.7
Section 7.8
Section 7.9
Section 7.10
Section 7.11
Section 7.12
Section 7.13
Section 7.14
Section 7.15
Project Contracts. .............................................................................................. 25
Project Documents. ........................................................................................... 26
Defaults Under Project Contracts. .................................................................... 26
Performance and Payment Bonds. .................................................................... 26
Professional Errors and Omissions Liability Insurance. ................................... 26
Contractor’s Commercial General Liability Insurance. .................................... 27
Design Consultant’s General Liability Insurance. ............................................ 27
Contractor’s Automobile Liability Insurance. .................................................. 27
Builder’s Risk Insurance. .................................................................................. 27
Design Consultant’s and Contractor’s Worker’s Compensation Insurance. .... 27
Proceeds of Certain Insurance Policies and Performance Bonds. .................... 28
ARTICLE 8 TITLE TO LEASED PROPERTY; LIMITATIONS ON ENCUMBRANCES ...... 29
Section 8.1
Section 8.2
Title to the Leased Property. ............................................................................. 29
No Encumbrance, Mortgage or Pledge of the Leased Property........................ 29
ARTICLE 9 MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES ................. 30
Section 9.1
Section 9.2
Section 9.3
Section 9.4
Section 9.5
Section 9.6
Maintenance of the Leased Property by the Town. .......................................... 30
Modification of the Project; Installation of Furnishings and Machinery of the
Town. ................................................................................................................ 30
Taxes, Other Governmental Charges and Utility Charges................................ 30
Provisions For Liability and Property Insurance. ............................................. 31
Advances. .......................................................................................................... 32
Granting of Easements. ..................................................................................... 32
ARTICLE 10 DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET
PROCEEDS .................................................................................................................................. 33
Section 10.1
Section 10.2
Section 10.3
Section 10.4
Damage, Destruction and Condemnation. ........................................................ 33
Obligation to Repair and Replace the Leased Property. ................................... 33
Insufficiency of Net Proceeds. .......................................................................... 34
Cooperation of the Trustee................................................................................ 35
ARTICLE 11 DISCLAIMER OF WARRANTIES; OTHER COVENANTS ............................. 36
Section 11.1
Section 11.2
Section 11.3
Section 11.4
Section 11.5
Section 11.6
Section 11.7
Disclaimer of Warranties. ................................................................................. 36
Further Assurances and Corrective Instruments. .............................................. 36
Compliance with Requirements. ....................................................................... 36
Release and Substitution of Leased Property.................................................... 36
Covenant to Reimburse Legal Expenses........................................................... 37
Access to the Leased Property; Rights to Inspect Books. ................................. 37
Financial Statements. ........................................................................................ 38
ARTICLE 12 PURCHASE OPTION ........................................................................................... 39
Section 12.1
Purchase Option. ............................................................................................... 39
ii
Section 12.2
Section 12.3
Conditions for Purchase Option. ....................................................................... 39
Manner of Conveyance. .................................................................................... 39
ARTICLE 13 ASSIGNMENT AND SUBLEASING .................................................................. 41
Section 13.1
Section 13.2
Assignment by the Trustee; Replacement of the Trustee. ................................ 41
Assignment and Subleasing by the Town. ........................................................ 41
ARTICLE 14 EVENTS OF LEASE DEFAULT AND REMEDIES ........................................... 42
Section 14.1
Section 14.2
Section 14.3
Section 14.4
Section 14.5
Section 14.6
Section 14.7
Events of Lease Default Defined. ..................................................................... 42
Remedies on Default. ........................................................................................ 42
Limitations on Remedies. ................................................................................. 43
No Remedy Exclusive....................................................................................... 44
Waivers. ............................................................................................................ 44
Agreement to Pay Attorneys’ Fees and Expenses. ........................................... 44
Waiver of Appraisement, Valuation, Stay, Extension and Redemption Laws. 44
ARTICLE 15 MISCELLANEOUS .............................................................................................. 45
Section 15.1
Section 15.2
Section 15.3
Section 15.4
Section 15.5
Section 15.6
Section 15.7
Section 15.8
Section 15.9
Section 15.10
Section 15.11
Section 15.12
Section 15.13
Section 15.14
Section 15.15
Section 15.16
Section 15.17
Section 15.18
Sovereign Powers of Town. .............................................................................. 45
Notices. ............................................................................................................. 45
Third Party Beneficiaries. ................................................................................. 45
Binding Effect. .................................................................................................. 45
Amendments. .................................................................................................... 45
Amounts Remaining in Funds. ......................................................................... 46
Triple Net Lease. ............................................................................................... 46
Computation of Time. ....................................................................................... 46
Payments Due on Holidays. .............................................................................. 46
Severability. ...................................................................................................... 46
Execution in Counterparts................................................................................. 47
Applicable Law. ................................................................................................ 47
The Trustee Is Independent of the Town. ......................................................... 47
Governmental Immunity. .................................................................................. 47
Recitals. ............................................................................................................. 47
Captions. ........................................................................................................... 47
Trustee’s Disclaimer. ........................................................................................ 47
Electronic Transactions. .................................................................................... 47
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
EXHIBIT D:
EXHIBIT E:
EXHIBIT F:
DESCRIPTION OF LEASED PROPERTY ....................................................... A-1
PERMITTED ENCUMBRANCES .....................................................................B-1
BASE RENTALS SCHEDULE ..........................................................................C-1
FORM OF NOTICE OF LEASE RENEWAL ................................................... D-1
FORM OF REQUISITION……………………………………………………..E-1
CERTIFICATE OF COMPLETION…………………………………………...F-1
iii
This LEASE PURCHASE AGREEMENT, dated as of August __, 2016 (this “Lease”), is
by and between UMB Bank, n.a., Denver, Colorado, a national banking association duly
organized and validly existing under the laws of the United States of America, solely in its
capacity as trustee under the Indenture (the “Trustee”), as lessor, and the Town of Winter Park,
Colorado, a Colorado home rule municipality (the “Town”), as lessee.
PREFACE
All capitalized terms used herein will have the meanings ascribed to them in Article 1 of
this Lease.
RECITALS
1.
The Town is a duly organized and existing home rule municipality of the State of
Colorado, created and operating pursuant to Article XX of the Constitution of the State of
Colorado and the home rule charter of the Town (the “Charter”).
2.
Pursuant to Section 1.4 of the Charter, the Town may acquire property for any
purpose deemed by the Town Council of the Town (the “Council”) to be in the Town’s best
interest by purchase, gift, lease or condemnation and may sell, lease, mortgage, hold, manage
and control such property as the Council may determine.
3.
Pursuant to Section 10.10 of the Charter, the Council may enter into leasepurchase agreements and installment-purchase agreements as a means of acquiring any real or
personal property.
4.
Pursuant to Section 13.3 of the Charter, the Council may sell, exchange or dispose
of permanent public buildings or real property by ordinance and may mortgage or encumber
permanent public buildings or real property by ordinance.
5.
Pursuant to Section 13.4 of the Charter, the Council may enter into a lease or
lease-option for such time as Council shall determine, for real or personal property to or from
any person, firm or corporation, public or private, governmental or otherwise by ordinance or
resolution.
6.
The Town is authorized by Article XX, Section 6 of the Colorado Constitution
and Part 8 of Article 15 of Title 31, Colorado Revised Statutes (“C.R.S.”), to enter into rental or
leasehold agreements in order to provide necessary land, buildings, equipment and other property
for governmental or proprietary purposes.
7.
The Council has determined that it is in the best interest of the Town to finance
the acquisition, construction and installation of a new stage in Hideaway Park (the “Project”).
8.
The Council has determined that it is in the best interests of the Town to provide
for the financing the Project by entering into the Site Lease and this Lease.
9.
(the “Site”).
The Project will be located on certain real property owned in fee title by the Town
1
10.
To finance the acquisition, construction and installation of the Project, (a) the
Town will lease the Site to the Trustee pursuant to the Site Lease, (b) the Project will be
constructed on the Site with the net proceeds of the Certificates (hereinafter defined), (c) the
Project will initially be owned by the Trustee; and (d) the Trustee will sublease the Site and lease
the buildings and premises located thereon, including the Project (as more particularly described
in Exhibit A attached hereto, the “Leased Property”) to the Town pursuant to this Lease.
11.
The payment by the Town of Base Rentals and Additional Rentals hereunder in
any future Fiscal Year is subject to specific Appropriations and the renewal by the Council of
this Lease for such future Fiscal Year. The Base Rentals and Additional Rentals payable by the
Town under this Lease shall constitute current expenditures of the Town.
12.
Neither this Lease nor the payment by the Town of Base Rentals or Additional
Rentals hereunder shall be deemed or construed as creating an indebtedness of the Town within
the meaning of any provision of the Colorado constitution, the Charter or the laws of the State of
Colorado concerning or limiting the creation of indebtedness by the Town, and shall not
constitute a multiple fiscal year direct or indirect debt or other financial obligation of the Town
within the meaning of Article X, Section 20(4) of the Colorado constitution or a mandatory
charge or requirement against the Town in any ensuing Fiscal Year beyond the then current
Fiscal Year. The obligation of the Town to pay Base Rentals and Additional Rentals 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, 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. In the event that this Lease is not renewed, the sole
security available to the Trustee, as lessor hereunder, shall be the Leased Property.
13.
The Trustee is executing this Lease solely in its capacity as trustee under the
Indenture, and subject to the terms, conditions and protections provided for herein.
14.
The Trustee and the Town intend that this Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the Town is leasing
the Leased Property from the Trustee.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the Trustee and the Town agree as follows:
2
ARTICLE 1
DEFINITIONS
Section 1.1 Certain Funds and Accounts. All references herein to any funds and
accounts shall mean the funds and accounts so designated which are established under the
Indenture.
Section 1.2 Definitions. All capitalized terms used herein and not otherwise defined
shall have the meanings given to them in the Indenture, unless the context otherwise requires.
Capitalized terms used herein shall have the following meanings under this Lease:
“Additional Certificates” means Additional Certificates which may be executed and
delivered pursuant to the Indenture.
“Additional Rentals” means the payment or cost of all:
(a)
(i) reasonable expenses and fees of the Trustee related to the performance
or discharge of its responsibilities under the provisions of this Lease, the Site Lease or the
Indenture, including the expenses of the Trustee in respect of any policy of insurance
obtained in respect of the Certificates executed and delivered with respect to this Lease,
(ii) the cost of insurance premiums and insurance deductible amounts under any
insurance policy reasonably deemed necessary by the Trustee to protect the Trustee from
any liability under this Lease, approved by the Town Representative, which approval
shall not be unreasonably withheld, (iii) reasonable legal fees and expenses incurred by
the Trustee to defend the Trust Estate or the Trustee from and against any legal claims,
and (iv) reasonable expenses and fees of the Trustee incurred at the request of the Town
Representative;
(b)
taxes, assessments, insurance premiums, utility charges, maintenance,
upkeep, repair and replacement with respect to the Leased Property and as otherwise
required under this Lease; and
(c)
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 in this Lease) which the Town agrees to assume or pay as Additional Rentals
under this Lease.
Additional Rentals shall not include Base Rentals.
“Appropriation” means the action of the Council in annually making moneys available
for all payments due under this Lease, including the payment of Base Rentals and Additional
Rentals.
“Base Rentals” means the rental payments payable by the Town during the Lease Term,
which constitute payments payable by the Town for and in consideration of the right to possess
and use the Leased Property as set forth in Exhibit C (Base Rentals Schedule) hereto. Base
Rentals does not include Additional Rentals.
3
“Base Rentals Payment Dates” means the Base Rentals Payment Dates set forth in
Exhibit C (Base Rentals Schedule) hereto.
“Business Day” means any day, other than a Saturday, Sunday or legal holiday or a day
(a) on which banks located in Denver, Colorado are required or authorized by law or executive
order to close or (b) on which the Federal Reserve System is closed.
“Certificate of Completion” means the Certificate of Completion in substantially the form
attached hereto as Exhibit F to be delivered by the Town Representative to the Trustee pursuant
to Section 7.3 hereof.
“Certificates” means the “Taxable Certificates of Participation, Series 2016, Evidencing
Proportionate Interests in the Base Rentals and other Revenues under an annually renewable
Lease Purchase Agreement dated as of August __, 2016, between UMB Bank, n.a., solely in its
capacity as trustee under the Indenture, as lessor, and the Town of Winter Park, Colorado, as
lessee” dated as of their date of delivery, executed and delivered pursuant to the Indenture.
Interest on the Certificates is includable in gross income for federal and Colorado income tax
purposes.
“Charter” means the home rule charter of the Town, and any amendments or supplements
thereto.
“Completion Date” means the earlier of (a) _______ __, 201__, or such later date
established by the Town with the consent of the Initial Purchaser, or (b) any date on which the
Certificate of Completion is delivered by the Town Representative to the Trustee pursuant to
Section 7.3 of this Lease.
“Construction Fund” means the Construction Fund created under the Indenture.
“Costs of Execution and Delivery” means all items of expense directly or indirectly
payable by the Trustee related to the authorization, execution and delivery of the Site Lease and
this Lease and related to the authorization, sale, execution and delivery of the Certificates, as
further defined in the Indenture.
“Costs of the Project” means all costs and expenses incurred in connection with the
acquisition, construction and installation of the Project, including without limitation:
(a)
any costs paid or incurred for the acquisition of any real estate acquired as
part of the Leased Property;
(b)
obligations paid, incurred or assumed for labor, materials, and equipment
in connection with the construction, acquisition, installation and improvement of the Project;
(c)
the cost of performance and payment bonds and of insurance of all kinds
(including, without limitation, title insurance) that may be necessary or appropriate in connection
with the Project;
4
(d)
the costs of engineering, architectural and other professional and technical
services including obligations incurred or assumed for preliminary design and development
work, test borings, soils tests, surveys, environmental review, estimates and plans and
specifications;
(e)
administrative costs incurred in connection with the leasing of the Leased
Property and the construction of the Project incurred prior to the Completion Date, including
supervision of the construction, acquisition and installation as well as the performance of all of
the other duties required by or consequent upon the construction, acquisition and installation of
the Project, including, without limitation, costs of preparing and securing all Project Documents,
architectural, engineering and other professional and technical fees, building permit fees, water
tap fees, sanitary sewer and wastewater fees, legal fees and expenses, appraisal fees, independent
inspection fees, auditing fees and advertising expenses in connection with the Project;
(f)
costs incurred in connection with the Certificates, including the initial
compensation and expenses of the Trustee, legal fees and expenses, and accounting fees;
(g)
all costs which are required to be paid under the terms of any Project
(h)
any costs associated with the leasing of the Site pursuant to the Site Lease;
Contract;
(i)
costs related to the preparation of the Site for construction of the Project,
including, but not limited to, the costs of demolition and cleanup of any existing improvements
on the Site and costs associated with the provision of sewer, water, gas, electricity and other
infrastructure improvements and services to the Site;
(j)
all other costs which are considered to be a part of the costs of the Project
in accordance with generally accepted accounting principles; and
(l)
any and all other costs necessary to effect the Trustee’s leasing of the
Leased Property and the implementation and completion of the Project to the extent the same are
permitted by the laws of the State of Colorado.
“Council” means the Town Council of the Town or any successor to its functions.
“Counsel” means an attorney at law or law firm (who may be counsel for the Trustee).
“CRS” means Colorado Revised Statutes.
“Event(s) of Lease Default” means any event as defined in Section 14.1 of this Lease.
“Event of Nonappropriation” means the termination and non-renewal of this Lease by the
Town, determined by the Council’s failure, for any reason, to appropriate by the last day of each
Fiscal Year, (a) sufficient amounts to be used to pay Base Rentals due in the next Fiscal Year
and (b) sufficient amounts to pay such Additional Rentals as are estimated to become due in the
next Fiscal Year, as provided in Section 6.4 of this Lease. An Event of Nonappropriation may
also occur under certain circumstances described in Section 9.3(c) of this Lease. The term also
5
means a notice under this Lease of the Town’s intention to not renew and therefore terminate this
Lease or an event described in this Lease relating to the exercise by the Town of its right to not
appropriate amounts due as Additional Rentals in excess of the amounts for which an
Appropriation has been previously effected.
“Finance Director” means the Finance Director of the Town or his or her successor in
functions, if any.
“Fiscal Year” means the Town’s fiscal year, which begins on January 1 of each calendar
year and ends on December 31 of the same calendar year, or any other twelve month period
which the Town or other appropriate authority hereafter may establish as the Town’s fiscal year.
“Force Majeure” means, without limitation, the following: acts of God; strikes, lockouts
or other industrial disturbances; acts of public enemies; orders or restraints of any kind of the
government of the United States of America, the State of Colorado or any of their departments,
agencies or officials or any civil or military authority; insurrection; riots; landslides; earthquakes;
fires; storms; droughts; floods; explosions; breakage or accidents to machinery, transmission
pipes or canals; or any other cause or event not within the control of the Town in its capacity as
lessee hereunder or the Trustee.
“Hazardous Substance” means and includes: (a) the terms “hazardous substance,”
“release” and “removal” which, as used herein, shall have the same meaning and definition as set
forth in paragraphs (14), (22) and (23), respectively, of Title 42 U.S.C. §9601 and in Colorado
law, provided, however, that the term “hazardous substance” as used herein shall also include
“hazardous waste” as defined in paragraph (5) of 42 U.S.C. §6903 and “petroleum” as defined in
paragraph (8) of 42 U.S.C. §6991; (b) the term “superfund” as used herein means the
Comprehensive Environmental Response, Compensation and Liability Act, as amended, being
Title 42 U.S.C. §9601 et seq., as amended, and any similar State of Colorado statute or local
ordinance applicable to the Leased Property, including, without limitation, Colorado rules and
regulations promulgated, administered and enforced by any governmental agency or authority
pursuant thereto; and (c) the term “underground storage tank” as used herein shall have the same
meaning and definition as set forth in paragraph (1) of 42 U.S.C. §6991.
“Indenture” means the Indenture of Trust, dated as of August __, 2016, entered into by
the Trustee, as the same may be amended or supplemented.
“Initial Purchaser” means Centennial Bank & Trust, and its successors, as the initial
purchaser of all the Certificates. All references to Initial Purchaser hereunder shall be applicable
for so long as, and only to the extent that, the Initial Purchaser is the sole owner of all
Outstanding Certificates. All references herein to Initial Purchaser shall be of no force and effect
in the event that the Initial Purchaser is not the sole Owner of all Outstanding Certificates.
“Initial Term” means the period which commences on the date of delivery of this Lease
and terminates on December 31, 2016.
“Interest Portion” means the portion of each Base Rentals payment that represents the
payment of interest set forth in Exhibit C (Base Rentals Schedule) hereto.
6
“Lease” means this Lease Purchase Agreement, dated as of August __, 2016, between the
Trustee, as lessor, and the Town, as lessee, as the same may hereafter be amended.
“Lease Remedy” or “Lease Remedies” means any or all remedial steps provided in this
Lease whenever an Event of Lease Default or an Event of Nonappropriation has happened and is
continuing, which may be exercised by the Trustee as provided in this Lease and in the
Indenture.
“Lease Term” means the Initial Term and any Renewal Terms as to which the Town may
exercise its option to renew this Lease by effecting an Appropriation of funds for the payment of
Base Rentals and Additional Rentals hereunder, as provided in and subject to the provisions of
this Lease. “Lease Term” refers to the time during which the Town is the lessee of the Leased
Property under this Lease.
“Leased Property” means the Site and the premises, buildings and improvements situated
thereon, including the Project, and including all fixtures attached thereto, as more particularly
described in Exhibit A to this Lease, together with any and all additions and modifications
thereto and replacements thereof, including, without limitation, the easements, rights of way,
covenants and other rights set forth in the documents listed on Exhibit B attached thereto.
“Net Proceeds” means the proceeds of any performance or payment bond, or proceeds of
insurance, including self-insurance, required by this Lease or proceeds from any condemnation
award, or any proceeds resulting from default or breaches of warranty under any Project
Contract, or proceeds derived from the exercise of any Lease Remedy or otherwise following
termination of this Lease by reason of an Event of Nonappropriation or an Event of Lease
Default, allocable to the Leased Property, less (a) all related expenses (including, without
limitation, attorney’s fees and costs) incurred in the collection of such proceeds or award; and (b)
all other related fees, expenses and payments due to the Town and the Trustee.
“Owners” means the registered owners of any Certificates. The Initial Purchaser shall be
the initial registered owner of the Certificates.
“Permitted Encumbrances” with respect to the Leased Property, means, as of any
particular time: (a) liens for taxes and assessments not then delinquent, or liens which may
remain unpaid pending contest pursuant to the provisions of this Lease; (b) the Site Lease, this
Lease, the Indenture and any related fixture filing and any liens arising or granted pursuant to the
Site Lease, this Lease or the Indenture; (c) utility, access and other easements and rights of way,
licenses, permits, party wall and other agreements, restrictions and exceptions which the Town
Representative certifies will not materially interfere with or materially impair the Leased
Property, including rights or privileges in the nature of easements, licenses, permits and
agreements as provided in this Lease or other Project Contracts; (d) any sublease of the Leased
Property that are permitted pursuant to the terms and provisions of Section 13.2 hereof; and (e)
the easements, covenants, restrictions, liens and encumbrances (if any) to which title to the
Leased Property was subject when leased to the Trustee pursuant to the Site Lease, as shown on
Exhibit B hereto and which the Town Representative certifies do not and will not interfere in
any material way with the intended use of the Leased Property.
7
“Prepayment” means any amount paid by the Town pursuant to the provisions of this
Lease as a prepayment of the Base Rentals due hereunder.
“Principal Portion” means the portion of each Base Rentals payment that represents the
payment of principal set forth in Exhibit C (Base Rentals Schedule) hereto.
“Project” means the acquisition, construction and installation of a new stage on the Site,
which is located at Hideaway Park in the Town, which is being financed with the net proceeds of
the Certificates.
“Project Contract” means any contract entered into before the Completion Date by the
Town regarding the design, acquisition, construction, improvement or installation of any portion
of the Project, including, without limitation, the design contracts between the Town and the
design consultants, the construction contracts between the Town and the contractors, and any
other contracts between the Town and anyone performing work or providing services in
connection with the implementation and completion of the Project.
“Project Documents” means the following: (a) plans, drawings and specifications for the
Project, when and as they are approved by the Town, including change orders, if any; (b) any
necessary permits for the Project, including any building permits and certificates of occupancy;
(c) the Project Contracts; (d) policies of title insurance, insurance policies required under the
Project Contracts, including general liability, property damage and automobile, workers’
compensation and builders’ risk insurance policies in respect of the general contractor for
construction of the Project and, on and after the Completion Date of the Project, insurance
policies required under Article 7 of this Lease, including commercial general liability and public
liability, property and worker’s compensation insurance policies, or certificates of insurance for
any of such policies thereof, as required by this Lease; (e) contractor’s performance and payment
bonds with respect to the Project; and (f) any and all other documents executed by or furnished
to the Town or the Trustee in connection with the Project.
“Purchase Option Price” means the amount payable on any date, at the option of the
Town, to prepay Base Rentals, terminate the Lease Term and purchase the Trustee’s leasehold
interest in the Site and the Trustees ownership interest in the Project, which shall equal the
remaining Principal Portion of Base Rentals on the purchase date, plus accrued interest to the
purchase date. In the event that the Purchase Option Price is payable, in whole or in part, from
moneys borrowed by the Town or from the proceeds of any other financing by the Town, the
Purchase Option Price shall also include a prepayment premium as follows:
(a)
5% of the remaining Principal Portion of Base Rentals if the purchase date
is prior to one year of the date of execution and delivery of the Certificates;
(b)
is on or after one year from the date of execution and delivery of the Certificates
and prior to two years after the date of execution and delivery of the Certificates;
(c)
is on or after two years from the date of execution and delivery of the Certificates
and prior to three years after the date of execution and delivery of the Certificates;
8
(d)
is on or after three years from the date of execution and delivery of the
Certificates and prior to four years after the date of execution and delivery of the
Certificates;
(e)
is on or after four year from the date of execution and delivery of the Certificates
and prior to five years after the date of execution and delivery of the Certificates;
and
(f)
Without premium if the purchase date is on or after five years after the
date of execution and delivery of the Certificates.
“Renewal Term” means any portion of the Lease Term commencing on January 1 of any
calendar year and terminating on or before December 31 of such calendar year as provided in
Article 4 of this Lease.
“Requisition” means the process by which the Town Representative will request the
reimbursement to the Town or the payment to others of qualifying Costs of the Project, such
Requisition to be initiated by the submission to the Trustee of a form substantially as set forth in
Exhibit E hereto.
“Revenues” means (a) all amounts payable by or on behalf of the Town or with respect to
the Leased Property pursuant to this Lease including, but not limited to, all Base Rentals,
Prepayments, the Purchase Option Price and Net Proceeds, but not including Additional Rentals;
(b) any portion of the proceeds of the Certificates deposited into the Base Rentals Fund or the
Construction Fund created under the Indenture; and (c) any moneys and securities, including
investment income, held by the Trustee in the Funds and Accounts established under the
Indenture (except for moneys and securities held in any defeasance escrow account).
“Site” means the real property owned by the Town and leased by the Town to the Trustee
under the Site Lease and subleased by the Trustee to the Town under this Lease, the legal
description of which is set forth in Exhibit A hereto, or an amendment or supplement hereto.
“Site Lease” means the Site Lease, dated as of August __, 2016, between the Town, as
lessor, and the Trustee, as lessee, as the same may hereafter be amended.
“Special Counsel” means any counsel experienced in matters of municipal law and listed
in the list of municipal bond attorneys, as published semiannually by The Bond Buyer, or any
successor publication. So long as the Lease Term is in effect, the Town shall have the right to
select Special Counsel.
“Town” means the Town of Winter Park, Colorado.
“Town Manager” means the Town Manager of the Town or his or her successor in
function.
9
“Town Representative” means the Mayor, the Town Manager or the Finance Director or
such other person at the time designated to act on behalf of the Town for the purpose of
performing any act under this Lease, the Site Lease or the Indenture by a written certificate
furnished to the Trustee containing the specimen signature of such person or persons and signed
on behalf of the Town by the Mayor.
“Trustee” means UMB Bank, n.a., acting solely in the capacity of trustee pursuant to the
Indenture, and any successor thereto appointed under the Indenture.
10
ARTICLE 2
REPRESENTATIONS AND COVENANTS
Section 2.1 Representations and Covenants of the Town. The Town represents and
covenants to the Trustee, to the extent permitted by law and subject to renewal of this Lease and
Appropriation as set forth in Article 6 hereof, as follows:
(a)
The Town is a home rule municipal corporation duly organized and
existing within the State under the Constitution and laws of the State and its Charter. The
Town is authorized to enter into this Lease and the Site Lease and to carry out its
obligations under this Lease and the Site Lease. The Town has duly authorized and
approved the execution and delivery of this Lease, the Site Lease and all other documents
related to the execution and delivery of this Lease and the Site Lease.
(b)
The Town owns the Site and the Trustee has a leasehold interest in the Site
pursuant to the Site Lease. The Town acknowledges that the Trustee, solely in its
capacity as trustee under the Indenture, will own the Project to be constructed on the Site
with the net proceeds of the Certificates, subject to the terms and provisions of the Site
Lease, this Lease and the Indenture.
(c)
The leasing of the Site to the Trustee pursuant to the Site Lease and the
leasing or subleasing of the Leased Property from the Trustee, under the terms and
conditions provided for in this Lease, and the implementation of the Project by the Town,
are necessary, convenient and in furtherance of the Town’s governmental purposes and
are in the best interests of the citizens and inhabitants of the Town. The Town will apply
the net proceeds derived from the proceeds of the Certificates to finance the acquisition,
construction and installation of the Project, and to pay the Cost of Execution and
Delivery.
(d)
To the best of the Town’s knowledge, neither the execution and delivery
of this Lease and the Site Lease, nor the fulfillment of or compliance with the terms and
conditions of this Lease and the Site Lease, nor the consummation of the transactions
contemplated hereby or thereby, conflicts with or results 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 or its property is bound, or violates any
statute, regulation, rule, order of any court having jurisdiction, judgment or
administrative order applicable to the Town, or constitutes a default under any of the
foregoing, or results in the creation or imposition of any lien or encumbrance whatsoever
upon any of the property or assets of the Town, except for Permitted Encumbrances.
(e)
The Town agrees that, except for non-renewal and nonappropriation as set
forth in Article 6 hereof, if the Town fails to perform any act which the Town is required
to perform under this Lease, the Trustee may, but shall not be obligated to, perform or
cause to be performed such act, and any reasonable expense incurred by the Trustee in
connection therewith shall be an obligation owing by the Town (from moneys for which
an Appropriation has been effected) to the Trustee shall be a part of Additional Rentals,
11
and the Trustee shall be subrogated to all of the rights of the party receiving such
payment.
(f)
There is no litigation or proceeding pending against the Town affecting
the right of the Town to execute this Lease or the Site Lease or the ability of the Town to
make the payments required hereunder, or to finance, acquire, construct or install the
Project, or to otherwise comply with the obligations contained herein, or which, if
adversely determined, would, in the aggregate or in any case, materially adversely affect
the property, assets, financial condition or business of the Town or materially impair the
right or ability of the Town to carry on its operations substantially as now conducted or
anticipated to be conducted in the future.
(g)
Except for customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, the Town shall not cause or permit any
Hazardous Substance to be brought upon, generated at, stored or kept or used in or about
the Leased Property without prior written notice to the Trustee, and all Hazardous
Substances, including, customary materials necessary for construction, operation,
cleaning and maintenance of the Leased Property, will be used, kept and stored in a
manner that complies with all laws regulating any such Hazardous Substance so brought
upon or used or kept in or about the Leased Property. If the presence of any Hazardous
Substance on the Leased Property caused or permitted by the Town results in
contamination of the Leased Property, or if contamination of the Leased Property by any
Hazardous Substance otherwise occurs for which the Town is legally liable for damage
resulting therefrom, then the Town shall include as an Additional Rental any amount
necessary to reimburse the Trustee for legal expenses incurred to defend (to the extent
that an Appropriation for the necessary moneys has been effected by the Town) the
Trustee from claims for damages, penalties, fines, costs, liabilities or losses. The
reimbursement of the Trustee’s legal expenses is not an indemnification. It is expressly
understood that the Town is not indemnifying the Trustee and expenses of such defense
shall constitute Additional Rentals. Without limiting the foregoing, if the presence of any
Hazardous Substance on the Leased Property caused or permitted by the Town results in
any contamination of the Leased Property, the Town shall provide prior written notice to
the Trustee and promptly take all actions at its sole expense (which expenses shall
constitute Additional Rentals) as are necessary to effect remediation of the contamination
in accordance with legal requirements.
Section 2.2 Representations and Covenants of the Trustee. The Trustee represents
and covenants as follows:
(a)
So long as no Event of Indenture Default has occurred and is then
continuing or existing, except as specifically provided in the Site Lease or this Lease or as
necessary to transfer the Trust Estate to a successor Trustee, the Trustee shall not pledge or
assign the Trustee’s right, title and interest in and to (i) this Lease or the Site Lease, (ii) the Base
Rentals, other Revenues and collateral, security interests and attendant rights and obligations
which may be derived under this Lease or the Site Lease and/or (iii) the Leased Property and any
reversion therein or any of its or the Trustee’s other rights under this Lease or the Site Lease or
assign, pledge, mortgage, encumber or grant a security interest in its or the Trustee’s right, title
12
and interest in, to and under this Lease or the Site Lease or the Leased Property except for
Permitted Encumbrances.
(b)
Neither the execution and delivery of this Lease and the Site Lease or the
Indenture by the Trustee, nor the fulfillment of or compliance with the terms and conditions
thereof and hereof, nor the consummation of the transactions contemplated thereby or hereby
conflicts with or results in a breach of the terms, conditions and 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 constitutes a default under any of the foregoing.
(c)
To the Trustee’s knowledge, there is no litigation or proceeding pending
against the Trustee affecting the right of the Trustee to execute this Lease and the Site Lease or
to execute the Indenture, and perform its obligations thereunder or hereunder, except such
litigation or proceeding as has been disclosed in writing to the Town on or prior to the date the
Indenture is executed and delivered.
(d)
The Trustee acknowledges and agrees that so long as the Initial Purchaser
is the sole Owner of all the Outstanding Certificates, the Initial Purchaser shall have the right to
direct the remedies to be taken by the Trustee hereunder and under the Site Lease and the
Indenture. Before taking any such action as directed by the Initial Purchaser, the Trustee shall be
entitled to the indemnification provided in the Indenture. The Trustee agrees that, so long as the
Initial Purchaser is the sole Owner of all Outstanding Certificates, the Trustee shall promptly
provide written notice of the occurrence of any Event of Indenture Default to the Initial
Purchaser.
Section 2.3 Nature of Lease. The Town and the Trustee acknowledge and agree that
the Base Rentals and Additional Rentals hereunder shall constitute currently budgeted and
appropriated expenditures of the Town and may be paid from any legally available funds. The
Town’s obligations under this Lease shall be subject to the Town’s annual right to terminate this
Lease (as further provided herein), and shall not constitute a mandatory charge or requirement in
any ensuing Fiscal Year beyond the then current Fiscal Year. No provision of this Lease shall be
construed or interpreted as creating a general obligation, multiple fiscal year financial obligation,
or other indebtedness of the Town within the meaning of any constitutional, Charter or statutory
debt limitation. No provision of this Lease shall be construed or interpreted as creating an
unlawful delegation of governmental powers nor as a donation by or a lending of the credit of the
Town within the meaning of Article XI, Sections 1 or 2 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 beyond those duly budgeted and appropriated for the Town’s
then current Fiscal Year. The Town shall be under no obligation whatsoever to exercise its
option to purchase the Trustee’s leasehold interest in 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 Town bonds or obligations
payable from any class or source of Town moneys (provided, however, certain restrictions in the
Indenture shall apply to the issuance of Additional Certificates). In the event that this Lease is
not renewed by the Town, the sole security available to the Trustee, as lessor hereunder, shall be
the Leased Property.
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Section 2.4 Town Acknowledgment of Certain Matters. The Town acknowledges
the Indenture and the execution and delivery by the Trustee of the Certificates pursuant to the
Indenture. The Town also acknowledges the Trustee’s authority to act on behalf of the Owners
of the Certificates with respect to all rights, title and interests of the Trustee in, to and under this
Lease, the Site Lease and the Leased Property.
Section 2.5 Relationship of Town and Trustee. The relationship of the Town and the
Trustee under this Lease is, and shall at all times remain, solely that of lessee and lessor; and the
Town neither undertakes nor assumes any responsibility or duty to the Trustee or to any third
party with respect to the Trustee’s obligations relating to the Leased Property; and the Trustee
does not undertake or assume any responsibility or duty to the Town or to any third party with
respect to the Town’s obligations relating to the Leased Property. Notwithstanding any other
provisions of this Lease: (a) the Town and the Trustee are not, and do not intend to be construed
to be, partners, joint ventures, members, alter egos, managers, controlling persons or other
business associates or participants of any kind of either of the other, and the Town and the
Trustee do not intend to ever assume such status; and (b) the Town and the Trustee shall not be
deemed responsible for, or a participant in, any acts, omissions or decisions of either of the other.
14
ARTICLE 3
LEASE OF THE LEASED PROPERTY
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 provisions of this Lease, subject only
to Permitted Encumbrances, to have and to hold for the Lease Term.
The Town and the Trustee acknowledge that the Town owns the Site and the Town has
leased the Site to the Trustee pursuant to the Site Lease; and the Town and the Trustee intend
that there be no merger of the Town’s interests as sublessee under this Lease and the Town’s
ownership interest in the Site so as to cause the cancellation of the Site Lease or this Lease, or an
impairment of the leasehold and subleasehold interest intended to be created by the Site Lease
and this Lease.
15
ARTICLE 4
LEASE TERM
Section 4.1 Duration of Lease Term. The Lease Term shall commence as of the date
hereof. The Initial Term shall terminate on December 31, 2016. This Lease may be renewed,
solely at the option of the Town, for 15 Renewal Terms, provided, however, that the Lease Term
shall terminate no later than December 31, 2031, except that the Renewal Term beginning on
January 1, 2031 shall terminate upon the Town’s payment of the final Base Rental payment as
set forth in Exhibit C. The Town hereby finds that the maximum Lease Term hereunder does
not exceed the weighted average useful life of the Leased Property. The Town further
determines and declares that the period during which the Town has an option to purchase the
Trustee’s leasehold interest in the Leased Property (i.e. the entire maximum Lease Term) does
not exceed the useful life of the Leased Property.
The Finance Director or other officer of the Town at any time charged with the
responsibility of formulating budget proposals for the Town is hereby directed to include in the
annual budget proposals submitted to the Council, in any year in which this Lease shall be in
effect, items for all payments required for the ensuing Renewal Term under this Lease until such
time, if any, as the Town may determine to not renew and terminate this Lease. Notwithstanding
this directive regarding the formulation of budget proposals, it is the intention of the Town that
any decision to effect an Appropriation for the Base Rentals and Additional Rentals shall be
made solely by the Council in its absolute discretion and not by any other official of the Town,
as further provided in the following paragraph. During the Lease Term, the Town shall in any
event, whether or not the Lease is to be renewed, furnish the Trustee with copies of its annual
budget promptly after the budget is adopted.
Not later than December 15 of the then current Initial Term or any Renewal Term the
Town Representative shall give written notice (in substantially the form set forth in Exhibit D
attached hereto) to the Trustee that either:
(a)
the Town has effected or intends to effect on a timely basis an
Appropriation for the ensuing Fiscal Year which includes (1) sufficient amounts
authorized and directed to be used to pay all of the Base Rentals and (2) sufficient
amounts to pay such Additional Rentals as are estimated to become due, all as further
provided in Sections 6.2, 6.3 and 6.4 of this Lease, whereupon, this Lease shall be
renewed for the ensuing Fiscal Year; or
(b)
the Town has determined, for any reason, not to renew this Lease for the
ensuing Fiscal Year.
Subject to the provisions of Section 6.4(a) hereof, the failure to give such notice shall not
constitute an Event of Lease Default, nor prevent the Town from electing not to renew this
Lease, nor result in any liability on the part of the Town. The Town’s option to renew or not to
renew this Lease shall be conclusively determined by whether or not the applicable
Appropriation has been made on or before December 31 of each Fiscal Year, all as further
provided in Article 6 of this Lease.
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The terms and conditions hereof during any Renewal Term shall be the same as the terms
and conditions hereof during the Initial Term, except that the Purchase Option Price and the Base
Rentals shall be as provided in Article 12 and Exhibit C (Base Rentals Schedule) hereof.
Section 4.2 Termination of Lease Term. The Lease Term shall terminate upon the
earliest of any of the following events:
(a)
the expiration of the Initial Term or any Renewal Term during which there
occurs an Event of Nonappropriation pursuant to Section 4.1 and Article 6 of this Lease
(provided that the Lease Term will not be deemed to have been terminated if the Event of
Nonappropriation is cured as provided in Section 6.4 hereof);
(b)
the occurrence of an Event of Nonappropriation under this Lease
(provided that the Lease Term will not be deemed to have been terminated if the Event of
Nonappropriation is cured as provided in Section 6.4 hereof);
(c)
the conveyance of the Trustee’s leasehold interest in the Leased Property
under this Lease to the Town upon payment of the Purchase Option Price or all Base
Rentals and Additional Rentals, for which an Appropriation has been effected by the
Town for such purpose, as provided in Section 12.2(a) or (b) of this Lease; or
(d)
an uncured Event of Lease Default and termination of this Lease under
Article 14 of this Lease by the Trustee.
Except for an event described in subparagraph (c) above, upon termination of this Lease, the
Town agrees to peacefully deliver possession of the Leased Property to the Trustee.
Termination of 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 (except to
the extent of the holdover provisions of Sections 6.5 and 14.2(c)(i) hereof, and except for any
conveyance pursuant to Article 12 of this Lease). All obligations of the Town accrued prior to
such termination shall be continuing until the Trustee gives written notice to the Town that such
accrued obligations have been satisfied.
Upon termination of the Lease Term any moneys received by the Trustee in excess of the
amounts necessary to terminate and discharge the Indenture, shall be paid to the Town.
The Town shall not have the right to terminate this Lease due to a default by the Trustee
under this Lease.
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ARTICLE 5
ENJOYMENT OF THE LEASED PROPERTY
Section 5.1 Trustee’s Covenant of Quiet Enjoyment. The Trustee hereby covenants
that the Town shall, during the Lease Term, peaceably and quietly have, hold and enjoy the
Leased Property without suit, trouble or hindrance from the Trustee. The Trustee shall not
interfere with the quiet use and enjoyment of the Leased Property by the Town during the Lease
Term so long as no Event of Lease Default shall have occurred. The Trustee shall, at the request
of the Town and at the cost of the Town, cooperate fully in any legal action in which the Town
asserts against third parties 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 5 shall be subject to the Trustee’s right to inspect the
Leased Property and the Town’s books and records with respect thereto as provided in Section
11.7 hereof.
Section 5.2 Town’s Need for the Leased Property; Determinations as to Fair Value
and Fair Purchase Price. The Town has determined and hereby determines that it has a current
need for the Leased Property. It is the present intention and expectation of the Town that this
Lease will be renewed annually until the Trustee’s interests in the Site Lease are released and
unencumbered title to the Leased Property is acquired by the Town pursuant to this Lease; but
this declaration shall not be construed as contractually obligating or otherwise binding the Town.
The Town has determined and hereby determines that the Base Rentals under this Lease during
the Lease Term for the Leased Property represent the fair value of the use of the Leased Property
and that the Purchase Option Price for the Leased Property will represent the fair purchase price
of the Trustee’s interest in the Leased Property at the time of the exercise of the option. The
Town has determined and hereby determines that the Base Rentals do not exceed a reasonable
amount so as to place the Town under an economic compulsion to renew this Lease or to
exercise its option to purchase the Trustee’s interest in the Leased Property hereunder. In
making such determinations, the Town has given consideration to the estimated current value of
the Leased Property, the uses and purposes for which the Leased Property will be employed by
the Town, the benefit to the citizens and inhabitants of the Town by reason of the use and
occupancy of the Leased Property pursuant to the terms and provisions of this Lease, the Town’s
option to purchase the Trustee’s interest in the Leased Property and the expected eventual
vesting of unencumbered title to the Leased Property in the Town. The Town hereby determines
and declares that the period during which the Town has an option to purchase the Trustee’s
interest in the Leased Property (i.e., the entire maximum Lease Term for the Leased Property)
does not exceed the weighted average useful life of the Leased Property.
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ARTICLE 6
PAYMENTS BY THE TOWN
Section 6.1 Payments to Constitute Currently Budgeted Expenditures of the Town.
The Town and the Trustee acknowledge and agree that the Base Rentals, Additional Rentals and
any other obligations hereunder shall constitute currently budgeted expenditures of the Town, if
an Appropriation has been effected for such purpose. The Town’s obligations to pay Base
Rentals, Additional Rentals and any other obligations under this Lease shall be from year to year
only (as further provided in Article 4 and Sections 6.2 and 6.4 hereof), shall extend only to
moneys for which an Appropriation has been effected by the Town, 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 a multiple fiscal year direct or indirect debt or other financial
obligation whatsoever of the Town or a general obligation or other indebtedness of the Town
within the meaning of any constitutional, Charter provision or statutory debt limitation, including
without limitation Article X, Section 20 of the Colorado constitution. No provision of this Lease
shall be construed or interpreted as creating an unlawful delegation of governmental powers nor
as a donation by or a lending of the credit of the Town within the meaning of Sections 1 or 2 of
Article XI of the Constitution of the State. Neither this Lease nor the Certificates shall directly
or indirectly obligate the Town to make any payments beyond those for which an Appropriation
has been effected by the Town for the Town’s then current Fiscal Year. The Town shall be
under no obligation whatsoever to exercise its option to purchase the Trustee’s leasehold interest
in 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 Town bonds or obligations payable from any class or source of Town moneys
(provided, however, that certain restrictions in the Indenture shall apply to the issuance of
Additional Certificates).
Section 6.2
Base Rentals, Purchase Option Price and Additional Rentals.
(a)
The Town shall pay Base Rentals for which an Appropriation has been effected
by the Town, directly to the Trustee during the Initial Term and any Renewal Term, on the Base
Rentals Payment Dates and in the “Total Base Rentals” amounts set forth in Exhibit C (Base
Rentals Schedule) attached hereto and made a part hereof. For federal and State income tax
purposes, a portion of each payment of Base Rentals for the Certificates is designated and will be
paid as interest, and Exhibit C (Base Rentals Schedule) hereto sets forth the Interest Portion of
each payment of Base Rentals for the Certificates. The Town shall receive credit against its
obligation to pay Base Rentals to the extent moneys are held by the Trustee on deposit in the
Base Rentals Fund created under the Indenture and are available to pay Base Rentals. The Town
acknowledges that upon receipt by the Trustee of each payment of Base Rentals, the Trustee,
pursuant to the terms of the Indenture, is to deposit the amount of such Base Rentals in the Base
Rentals Fund.
The Base Rentals set forth in Exhibit C shall be recalculated in the event of the execution
and delivery of Additional Certificates as provided in the Indenture and shall also be recalculated
in the event of a partial redemption of the Certificates.
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(b)
The Town may, on any date, pay the then applicable Purchase Option Price for
the purpose of terminating this Lease and the Site Lease in whole and purchasing the Trustee’s
leasehold interest in the Leased Property as further provided in Article 12 of this Lease. The
Town shall give the Trustee notice of its intention to exercise either of such options not less than
forty-five (45) days in advance of the date of exercise and shall deposit with the Trustee by not
later than the date of exercise an amount equal to the Purchase Option Price due on the date of
exercise or the applicable amount of Base Rentals to be prepaid. If the Town shall have given
notice to the Trustee of its intention to prepay Base Rentals 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 which have been specifically appropriated by the Council for such purpose as if no
such notice had been given. The Trustee may waive the right to receive forty-five (45) days
advance notice and may agree to a shorter notice period in the sole determination of the Trustee.
(c)
All Additional Rentals shall be paid by the Town on a timely basis directly to the
person or entity to which such Additional Rentals are owed. Additional Rentals shall include,
without limitation, the reasonable fees and expenses of the Trustee, reasonable expenses of the
Trustee in connection with the Leased Property and for the cost of taxes, insurance premiums,
utility charges, maintenance and repair costs and all other expenses expressly required to be paid
hereunder. All of the payments required by this paragraph are subject to Appropriation by the
Town; provided, however, a failure by the Town to budget and appropriate moneys for any of the
payments required by this paragraph shall constitute an Event of Nonappropriation.
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 4.1 of this Lease, the Town shall
furnish an itemization of such estimated Additional Rentals to the Trustee on or before the 15th
day preceding such Fiscal Year.
Section 6.3 Manner of Payment. The Base Rentals, for which an Appropriation has
been effected by the Town, and, if paid, the Purchase Option Price, shall be paid or prepaid by
the Town to the Trustee at its corporate trust office by wire transfer of federal funds, 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 corporate trust office.
The obligation of the Town to pay the Base Rentals and Additional Rentals as required
under this Article 6 and other sections hereof in any Fiscal Year for which an Appropriation has
been effected by the Town for the payment thereof shall be absolute and unconditional and
payment of the Base Rentals and Additional Rentals in such Fiscal Years 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 expressed 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 annually renewable nature of the Town’s
obligation hereunder as set forth in Section 6.1 hereof, and further subject to the Town’s rights
under Section 10.3 hereof. Notwithstanding any dispute between the Town and the Trustee, the
20
Town shall, during the Lease Term, make all payments of Base Rentals and Additional Rentals
in such Fiscal Years and shall not withhold any Base Rentals or Additional Rentals, for which an
Appropriation has been effected by the Town, pending final resolution of such dispute (except to
the extent permitted by Sections 8.2 and 9.3 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, for which a specific
Appropriation has been effected by the Town for such purpose, in such Fiscal Years subject to
this Article (except to the extent provided by Sections 8.2 and 9.3 hereof with respect to certain
Additional Rentals).
Section 6.4 Nonappropriation. In the event that the Town gives notice that it intends
to not renew this Lease as provided by Section 4.1 hereof or the Town shall not effect an
Appropriation, on or before December 31 of each Fiscal Year, of moneys to pay all Base Rentals
and reasonably estimated Additional Rentals coming due for the next ensuing Renewal Term as
provided in Section 4.1 hereof and this Article, or in the event that the Town is proceeding under
the provisions of Section 10.3(c) hereof (when applicable), an Event of Nonappropriation shall
be deemed to have occurred; subject, however, to each of the following provisions:
(a)
In the event the Trustee does not receive the written notice provided for by
Section 4.1 hereof or evidence that an Appropriation has been effected by the Town on or
before December 31 of a Fiscal Year, then the Trustee shall declare an Event of
Nonappropriation on the first Business Day of the February following such Fiscal Year or
such declaration shall be made on any earlier date on which the Trustee receives official,
specific written notice from the Town that this Lease will not be renewed. In order to
declare an Event of Nonappropriation, the Trustee shall send written notice thereof to the
Town.
(b)
The Trustee shall waive any Event of Nonappropriation which is cured by
the Town, within 30 days of the receipt by the Town of notice from the Trustee as
provided in (a) above, by a duly effected Appropriation to pay all Base Rentals and
sufficient amounts to pay reasonably estimated Additional Rentals coming due for such
Renewal Term.
(c)
Pursuant to the terms of the Indenture, the Trustee may waive any Event
of Nonappropriation which is cured by the Town within a reasonable time with the
procedure described in (b) above.
In the event that during the Initial Term or any Renewal Term, any Additional Rentals shall
become due which were not included in a duly effected Appropriation and moneys are not
specifically budgeted and appropriated or otherwise made available to pay such Additional
Rentals within 60 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).
If an Event of Nonappropriation occurs, the Town shall not be obligated to make
payment of the Base Rentals or Additional Rentals or any other payments provided for herein
21
which accrue after the last day of the Initial Term or any Renewal Term during which such Event
of Nonappropriation occurs; provided, however, that, subject to the limitations of Sections 6.1
and 14.3 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.
Subject to Section 6.5 hereof, the Town shall in all events vacate or surrender possession
of the Leased Property by March 1 of the Renewal Term in respect of which an Event of
Nonappropriation has occurred.
After March 1 of the Renewal Term in respect of which an Event of Nonappropriation
has occurred, the Trustee may proceed to exercise all or any Lease Remedies.
The Town acknowledges that, upon the occurrence of an Event of Nonappropriation
(a) the Trustee shall be entitled to all moneys then being held in all funds created under the
Indenture (except any defeasance escrow accounts) to be used as described therein and (b) all
property, funds and rights then held or acquired by the Trustee upon the termination of this Lease
by reason of an Event of Nonappropriation are to be held by the Trustee in accordance with the
terms of the Indenture.
Notwithstanding anything herein to the contrary, so long as the Initial Purchaser is the
sole owner of the Outstanding Certificates, upon the occurrence of an Event of Nonappropriation
or Event of Default as described herein or in the Indenture, the Trustee shall provide written
notice thereof to the Initial Purchaser and shall proceed in accordance with any written
instructions received by the Initial Purchaser. Before taking any such action as directed by the
Initial Purchaser, the Trustee shall be entitled to the indemnification provided in the Indenture.
Section 6.5 Holdover Tenant. If the Town fails to vacate the Leased Property after
termination of this Lease, whether as a result of the occurrence of an Event of Nonappropriation
or an Event of Lease Default as provided in Section 14.2(a) hereof, with the written permission
of the Trustee it will be deemed to be a holdover tenant on a month-to-month basis, and will be
bound by all of the other terms, covenants and agreements of this Lease. Any holding over by
the Town without the written permission of the Trustee shall be at sufferance. The amount of
rent to be paid monthly during any period when the Town is deemed to be a holdover tenant will
be equal to (a) one-third of the Interest Portion of the Base Rentals coming due on the next
succeeding Base Rentals Payment Date plus one-twelfth of the Principal Portion of the Base
Rentals coming due on the next succeeding Base Rentals Payment Date on which a Principal
Portion of the Base Rentals would have been payable with appropriate adjustments to ensure the
full payment of such amounts on the due dates thereof in the event termination occurs during a
Renewal Term plus (b) Additional Rentals as the same shall become due.
Section 6.6 Prohibition
of
Adverse
Budget
or
Appropriation
Modifications. To the extent permitted by law, the Town shall not, during any Fiscal Year of
the Lease Term, make any budgetary transfers or other modifications to its then existing budget
and appropriation measures relating to the Leased Property or this Lease which would adversely
affect the Town’s ability to meet its obligation to pay Base Rentals and duly budgeted and
appropriated Additional Rentals hereunder.
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ARTICLE 7
LEASING OF THE SITE; ACQUISITION, CONSTRUCTION AND
IMPROVEMENT OF THE PROJECT
Section 7.1 Leasing of the Site; Acquisition, Construction and Improvement of
the Project. As further provided in Section 8.1 hereof, fee simple title to the Site shall be held
by the Town and title to the Project shall be held by the Trustee. Pursuant to the Site Lease, the
Town shall lease the Site to the Trustee. Pursuant to this Lease, the Town will lease back the
Site and lease the Project from the Trustee.
The Town hereby agrees that it will make all contracts, orders, receipts, writings and
instructions, including all Project Contracts, with any other persons, firms or corporations and in
general do all things that may be necessary, requisite or proper for the acquisition, construction,
installation and completion of the Project. The Town agrees to comply with all applicable
federal, State of Colorado and local law in connection with the making of contracts for the
Project. The administration of the Project is to comply with all policies and procedures and all
standard contractual and procedural documents required by the Town, except that pursuant to
Section 7.5 upon termination of this Lease due to the occurrence of an Event of
Nonappropriation or an Event of Lease Default, all Project Contracts shall be fully and freely
assignable to the Trustee. Notwithstanding anything to the contrary contained in this Lease or
the Indenture, all Project Documents shall be made and approved by the Town. The Town
hereby further agrees:
(a)
The Town shall cause the Project to be completed as herein provided; and
(b)
The Town agrees to complete the Project with all reasonable dispatch, and
to use its best efforts to have the Project completed by the Completion Date or as soon
thereafter as may be practicable.
So long as this Lease is in full force and effect and no Event of Nonappropriation or
Event of Lease Default shall have occurred, the Town shall have full power to carry out the acts
and agreements provided in this Section 7.1, and such power shall not be terminated or restricted
by act of the Trustee, except as provided in this Section 7.1.
The Town agrees to implement and complete the Project pursuant to this Article 7,
through the application of moneys to be disbursed by the Trustee from the Construction Fund
(created under the Indenture) pursuant to the Indenture. If, for any reason, the Project is not
completed by the Completion Date, there shall be no resulting liability on the part of the Town or
the Trustee or an Event of Lease Default hereunder, and there shall be no diminution in or
postponement of the Base Rentals and Additional Rentals required to be paid by the Town and
for which an Appropriation has been effected by the Town during the Lease Term. However, in
the event that the Trustee does not receive a Certificate of Completion in respect of the Project,
as required in Section 7.3 of this Lease, by the Completion Date, and unless the Town opts to
complete the Project and submits a reasonable schedule of completion to the Trustee, the Trustee
shall, upon thirty (30) days written notice to the Town, be authorized, but not required, to
complete the remainder of the Project from any moneys remaining in the Construction Fund for
23
the Project. The Trustee shall exercise its option to complete the remainder of the Project only
with the prior written consent of the Initial Purchaser.
Section 7.2 Disbursements for Costs of the Project. So long as no Event of
Nonappropriation or Event of Lease Default has occurred, the Trustee shall disburse the moneys
in the Construction Fund created under the Indenture to pay the Costs of the Project. Such
disbursements from the Construction Fund shall be made upon receipt by the Trustee of a
Requisition signed by the Town Representative, in substantially the form set forth in Exhibit E
hereto, specifying in reasonable detail the nature of the obligation. The Trustee shall have no
duty to review or examine the accompanying bill, invoice or statement of account, but may
conclusively rely on the properly executed disbursement request.
If an Event of Nonappropriation or an Event of Lease Default shall occur after the
execution and delivery of this Lease, but prior to the Completion Date, any moneys held in funds
and accounts created under the Indenture (other than moneys on deposit in any defeasance
escrow funds) may be utilized by the Trustee to complete, repair or modify the Project, or may
be disbursed for the payment of Certificates executed and delivered pursuant to the Indenture or
other charges as the Trustee may deem appropriate in accordance with the standards concerning
the Trustee contained in the Indenture; provided, however, that the Initial Purchaser shall have
the right to direct the actions to be taken by the Trustee hereunder and under the Site Lease and
the Indenture. Before taking any such action as directed by the Initial Purchaser, the Trustee
shall be entitled to the indemnification provided in the Indenture.
Under the Indenture, the Trustee is authorized and directed to issue its checks or drafts or
transmit wire payments for each disbursement to pay Costs of the Project provided for herein.
The Town hereby consents to such disbursements by the Trustee. The Trustee shall keep and
maintain adequate records pertaining to the Construction Fund established under the Indenture
and all disbursements therefrom in accordance with the Requisitions. After the Project has been
completed and the Certificate of Completion has been filed with the Trustee as provided in
Section 7.3 of this Lease, and after any amounts remaining on deposit in the Construction Fund
have been applied in accordance with Section 7.3 hereof, the Trustee shall provide account
statements to the Town.
Section 7.3 Completion of Construction. Upon the substantial completion of the
Project, the Town Representative shall execute and deliver to the Trustee a Certificate of
Completion in substantially the form of Exhibit F hereto.
In the event that, after the delivery of the Certificate of Completion, there remains in the
Construction Fund created under the Indenture any unreserved balance, such balance shall be
used by the Trustee, as directed in writing by the Town, to:
(a)
add to, modify or alter the Project or add new components thereto, or
(b)
direct the Trustee in writing to transfer the remaining balance to the Base
Rentals Fund created under the Indenture for a credit against the Base Rentals as the
same shall become due , or
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(c)
effect a combination of the foregoing.
Section 7.4 Title Insurance. The Trustee shall be provided with a Leasehold Owner’s
title insurance policy insuring the Trustee’s leasehold interest in the Site pursuant to the Site
Lease, subject only to Permitted Encumbrances, in an amount not less than the original aggregate
principal amount of the Certificates or such lesser amount as shall be the maximum insurable
value of the Leased Property. Such policy, or a binding commitment therefor, shall be provided
to the Trustee concurrently with the issuance of each series of Certificates.
Section 7.5 Project Contracts. The Town represents that, in the opinion of the Town,
based upon an examination of property, estimated design, construction, acquisition and
installation costs and the configuration of the Project, the Project can, to the best of the Town’s
present knowledge, be constructed, acquired and installed for a total cost within the amount of
funds to be available in the Construction Fund created under the Indenture, including anticipated
investment income. In the event of cost overruns resulting in the Costs of the Project exceeding
the amount available in the Construction Fund created under the Indenture, all in connection with
the leasing of the Site and the implementation and completion of the Project, upon written
consent of the Town, either (a) the Town shall make such modifications to the plans and
specifications for the Project as will permit the Project to be financed from the amounts available
therefor under the Indenture or (b) the Town shall deposit additional funds received from
appropriations by the Town, or the Trustee may deposit additional funds received from the
proceeds of Additional Certificates in the Construction Fund created under the Indenture,
sufficient to complete the Project. If the Town pays any portion of the Costs of the Project
pursuant to this Section, it shall not be entitled to any reimbursement therefor from the Trustee or
any owner of Certificates, nor shall it be entitled to any diminution in or postponement of the
Base Rentals and the Additional Rentals payable under this Lease.
Upon the occurrence of an Event of Nonappropriation or an Event of Lease Default, the
Trustee as lessee of the Leased Property under the Site Lease, may complete the Project, utilizing
any moneys available therefor (except for any moneys on deposit in any defeasance escrow
funds) provided, however, that the Initial Purchaser shall have the right to direct the actions to be
taken by the Trustee hereunder and under the Site Lease and the Indenture. All Project Contracts
shall provide that, upon a termination of the Lease Term by reason of the occurrence of an Event
of Nonappropriation or an Event of Lease Default or upon the Trustee’s assuming control over
completion of the Project as provided in Section 7.1 of this Lease, and upon written notice by the
Trustee to the party or parties to the Project Contracts that any of such events has occurred:
(a) such contracts shall be fully and freely assignable to the Trustee, without the consent of any
other person and the Trustee may choose to assume or not assume such contracts; and (b) if the
Trustee does so assume such contracts, the other party or parties thereto shall perform the
agreements contained therein for the Trustee. All Project Contracts shall also provide that, upon
an Event of Nonappropriation or an Event of Lease Default and upon written notice from the
Trustee, the Trustee may, in its sole discretion, terminate some or all of such Project Contracts;
and the other party or parties thereto shall then be entitled to payment only from amounts
available therefor under the Indenture and only for work done prior to such termination. Upon
the occurrence of an Event of Nonappropriation or an Event of Lease Default or upon the
Trustee’s assuming control over the implementation and completion of the Project as provided in
Section 7.1 hereof, and upon receipt of a written request from the Trustee, the Town shall assign
25
all of its right, title and interest in and to any or all Project Contracts to the Trustee and shall
deliver all such Project Documents held by it to the Trustee.
Section 7.6 Project Documents. The Town Representative shall furnish, but the
Trustee shall have no duty to review, to the Trustee, copies of the Project Documents, as soon
after the commencement of the Lease Term as such Project Documents shall become available to
the Town and from time to time thereafter. Neither the Project Documents nor any change or
amendment thereto shall (a) cause the Project to be used for any purpose prohibited hereby or by
the constitution or laws of the State; (b) result in a material reduction in the value of the Project
(except as provided in Section 7.5 hereof); or (c) adversely affect the ability of the Town to meet
its obligations hereunder.
Section 7.7 Defaults Under Project Contracts. In the event of any material default
by a design consultant or construction contractor under any of the Project Contracts, or in the
event of a material breach of warranty with respect to any materials, workmanship or
performance, the Town shall promptly proceed, either separately or in conjunction with others, to
pursue diligently its remedies against such design consultant or contractor and/or against each
surety of any bond securing the performance of such Project Contracts. The Net Proceeds of any
amounts recovered by way of damages, liquidated damages, refunds, adjustments, or otherwise
in connection with the foregoing, remaining after deduction of expenses incurred in such
recovery (including without limitation, attorneys’ fees and costs) shall be paid to the Trustee for
deposit to the Construction Fund created under the Indenture if prior to the Completion Date, or
if after the Completion Date, to the Trustee for deposit in a separate trust fund in accordance with
Section 10.2 of this Lease.
Section 7.8 Performance and Payment Bonds. Each contractor entering into a
Project Contract for the construction of the Project shall be required to furnish a performance and
payment bond in a form acceptable to the Town, copies of which shall be provided to the Town
and the Trustee. Such bonds shall be made payable to the Town and the Trustee as co-obligees,
subject to the provisions of the Indenture, shall be executed by a corporate surety licensed to
transact business in the State and acceptable to the Town, and shall be in an amount equal to the
contract price for such contractor’s Project Contract. If, at any time during the construction of
the Project, the surety on such bond shall be disqualified from doing business within the State, or
shall otherwise become incapable of performing its obligations under such bond, an alternate
surety acceptable to the Town shall be selected. In the event of any change order resulting in the
performance of additional work in connection with the Project, the amounts of such bonds
pertaining thereto shall be increased to include the cost of such additional work or materials or
fixtures to be incorporated in the Project.
Section 7.9 Professional Errors and Omissions Liability Insurance. The Town
shall require in its contracts with the design consultants for the Project that they obtain and
maintain professional liability insurance for damages for claims by reasons of any negligent act,
error or omission committed or alleged to have been committed by them or anyone for whom
they are liable, in an amount of not less than $2,000,000 per claim and $2,000,000 aggregate.
Professional liability insurance coverage may be structured to provide coverage on a “claimsmade” basis; provided, however, the professional liability insurance coverage shall remain in
effect for the period set out in C.R.S. §13-80-104. Deductibles for such insurance shall be paid
26
by the design consultants. The limits of this insurance shall not be reduced unless approved by
the Town and the Trustee in writing.
Section 7.10 Contractor’s Commercial General Liability Insurance.
Each
contractor entering into a Project Contract for the construction of any portion of the Project shall
be required to procure and maintain Commercial General Liability Insurance during the duration
of such contractor’s Project Contract in the amount of at least $2,000,000 each occurrence and
$4,000,000 general aggregate. The policies shall be applicable to all premises and operations.
Such policies shall include the Town and the Trustee as additional named insureds and shall
include a provision prohibiting cancellation or termination without thirty (30) days prior written
notice to the Town and the Trustee. A certificate of insurance in a form acceptable to the Town
shall be provided to the Town and the Trustee with respect to each contractor. Such insurance
shall provide protection from all claims for bodily injury, including death, property damage,
contractual liability and completed operations.
Section 7.11 Design Consultant’s General Liability Insurance.
Each design
consultant entering into a Project Contract for the design of any portion of the Project shall be
required to procure and maintain Commercial General Liability Insurance during the duration of
such design consultant’s Project Contract in the amount of at least $1,000,000 each occurrence,
and $2,000,000 general aggregate. The policies shall be applicable to all premises and
operations. Such policies shall include the Town and the Trustee as additional named insureds
and shall include a provision prohibiting cancellation or termination without thirty (30) days
prior written notice to the Town and the Trustee. A certificate of insurance in a form acceptable
to the Town shall be provided to the Town and Trustee with respect to each design consultant.
Such insurance shall provide protection from all claims for bodily injury, including death,
property damage, contractual liability and completed operations.
Section 7.12 Contractor’s Automobile Liability Insurance. Each contractor entering
into a Project Contract for the construction of any portion of the Project shall be required to
procure and maintain automobile liability insurance with minimum combined single limits for
bodily injury and property damage of not less than $2,000,000 for any one occurrence, with
respect to each of the contractor’s owned, hired or non-owned vehicles assigned to or used in
performance of its work.
Section 7.13 Builder’s Risk Insurance. Each contractor entering into a Project
Contract for the construction of any portion of the Project shall be required to provide Builder’s
Risk Insurance with minimum limits of not less than the insurable value of its work to be
performed under its Project Contract. A certificate of insurance shall be provided to the Trustee
and the Town within seven Business Days of the effective date of the policies. The policies shall
be written on an “all risk” basis and shall name the Town and the Trustee as insureds. The
policies shall contain a waiver of subrogation by the issuer of such policies with respect to the
Town and the Trustee, and their respective officers, agents and employees while acting within
the scope of their employment.
Section 7.14 Design Consultant’s and Contractor’s Worker’s Compensation
Insurance. Each design consultant and contractor entering into a Project Contract shall be
required to procure and maintain, at its own cost and expense, worker’s compensation insurance
27
during the term of its Project Contract covering its employees working thereunder, in the
minimum amounts required by law. Such insurance, if issued by a private carrier, shall contain a
provision that such coverage shall not be canceled without thirty (30) days’ prior written notice
to the Town and the Trustee. A certificate issued by the state compensation insurance fund
evidencing such coverage shall be provided to the Town or, if such insurance is provided by a
private carrier, a completed certificate of insurance, in a form acceptable to the Town, shall be
provided to the Town with respect to each design consultant and contractor.
Section 7.15 Proceeds of Certain Insurance Policies and Performance Bonds. The
Net Proceeds of any performance or payment bond or insurance policy required by Sections 7.8
through 7.13 and any Net Proceeds received as a consequence of default under a Project Contract
as provided by Section 7.7 of this Lease, shall be deposited into the Construction Fund if
received prior to the Completion Date and, if received after the Completion Date, remitted to the
Trustee for deposit in a separate trust fund in accordance with Section 10.2 of this Lease.
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ARTICLE 8
TITLE TO LEASED PROPERTY;
LIMITATIONS ON ENCUMBRANCES
Section 8.1 Title to the Leased Property. At all times during the Lease Term, title to
the Site shall remain in the Town, subject to the Site Lease, this Lease, the Indenture and any
other Permitted Encumbrances. Except personal property purchased by the Town at its own
expense pursuant to Section 9.2 of this Lease, the Project, and any and all additions and
modifications to or replacements of any portion of the Project shall be held in the name of the
Trustee, subject to this Lease and Permitted Encumbrances, until conveyed as provided in
Section 7.02 of the Indenture or Article XII of this Lease, notwithstanding (i) the occurrence of
an Event of Nonappropriation as provided in Section 6.4 of this Lease or one or more Events of
Default as defined in Section 14.1 of this Lease; (ii) the occurrence of any event of damage,
destruction, condemnation or construction defect or title defect, as provided in Article X of this
Lease; (iii) termination of the right of the Town to direct the acquisition, construction and
installation of the Project pursuant to the last sentence of Section 7.1 of this Lease; or (iv) the
violation by the Trustee (or by the Trustee as assignee of the Lessor pursuant to the Indenture) of
any provision of this Lease.
The Town shall have no right, title or interest in the Project, or any additions and
modifications to or replacements of any portion thereto, except as expressly set forth in this
Lease.
Section 8.2 No Encumbrance, Mortgage or Pledge of the Leased Property. Except
as may be permitted by this Lease, the Town shall not permit any mechanic’s or other lien to be
established or remain against the Leased Property; provided that, 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
mechanic’s or other lien filed or established against the Leased Property, and in such event may
permit the items 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
Counsel, by nonpayment of any such items the Trustee’s interest in the Leased Property will be
materially endangered, or the Leased Property or any part thereof will be subject to loss or
forfeiture, in which event the Town shall promptly pay and cause to be satisfied and discharged
all such unpaid items (provided, however, that such payment shall not constitute a waiver of the
right to continue to contest such items). The Trustee will cooperate in any such contest. Except
as may be permitted by this Lease, the Town shall not directly or indirectly create, incur, assume
or suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to
the Leased Property, except Permitted Encumbrances. The Town shall promptly, at its expense,
take such action as may be necessary to duly discharge any such mortgage, pledge, lien, charge,
encumbrance or claim not excepted above.
29
ARTICLE 9
MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES
Section 9.1 Maintenance of the Leased Property by the Town. Subject to its right to
not appropriate and as otherwise provided in Section 9.3 hereof, the Town agrees that at all times
during the Lease Term, the Town will 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, and from time to time make or cause to be made all necessary and proper repairs,
including replacements, if necessary. The Trustee shall have no responsibility in any of these
matters or for the making of any additions, modifications or replacements to the Leased Property.
Section 9.2 Modification of the Project; Installation of Furnishings and Machinery
of the Town. The Town shall have the privilege of making additions, modifications and
improvements to the Project, at its own cost and expense, as appropriate and any such additions,
modifications and improvements to the Project shall owned by the Trustee and shall be Leased
Property hereunder, subject to the Site Lease, this Lease and the Indenture and shall be included
under the terms of this Lease and the Indenture; provided, however, that such additions,
modifications and improvements shall not in any way damage the Leased Property 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 13.2 hereof); and provided that the
Leased Property, as improved or altered, upon completion of such additions, modifications and
improvements, shall be of a value not less than the value of the Leased Property immediately
prior to such making of additions, modifications and improvements.
The Town may also, from time to time in its sole discretion and at its own expense,
install machinery, equipment and other tangible property in or on the Leased Property. All such
machinery, equipment and other tangible property shall remain the sole property of the Town in
which the Trustee shall have no interests; provided, however, that title to any such machinery,
equipment and other tangible property which becomes permanently affixed to the Leased
Property shall be included under the terms of the Site Lease, this Lease and the Indenture, to the
extent that such Leased Property would be damaged or impaired by the removal of such
machinery, equipment or other tangible property.
The Town shall have the right to make substitutions to the Leased Property upon
compliance with the provisions set forth in Section 11.4 hereof.
Section 9.3 Taxes, Other Governmental Charges and Utility Charges. In the event
that the Leased Property shall, for any reason, be deemed subject to taxation, assessments or
charges lawfully made by any governmental body, the Town shall pay the amount of all such
taxes, assessments and governmental charges then due, as Additional Rentals. With respect to
special assessments or other governmental charges which may be lawfully paid in installments
over a period of years, the Town shall be obligated to provide for Additional Rentals only for
such installments as are required to be paid during the upcoming Fiscal Year. Except for
Permitted Encumbrances, the Town shall not allow any liens for taxes, assessments or
governmental charges to exist with respect to the Leased Property (including, without limitation,
any taxes levied upon the Leased Property which, if not paid, will become a charge on the rentals
and receipts from the Leased Property, or any interest therein, including the interests of the
30
Trustee), or the rentals and revenues derived therefrom or hereunder. The Town shall also pay as
Additional Rentals, as the same respectively become due, all utility and other charges and fees
and other expenses incurred in the operation, maintenance and upkeep of the Leased Property.
The Town may, at its expense, in good faith contest any such taxes, assessments, utility
and other charges and, in the event of any such contest, may permit the taxes, assessments, utility
or other charges 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 Counsel, by
nonpayment of any such items the value of the Leased Property will be materially endangered or
the Leased Property will be subject to loss or forfeiture, or the Trustee will be subject to liability,
in which event such taxes, assessments, utility or other charges shall be paid forthwith (provided,
however, that such payment shall not constitute a waiver of the right to continue to contest such
taxes, assessments, utility or other charges).
Section 9.4 Provisions For Liability and Property Insurance. Upon the execution
and delivery of this Lease, the Town shall, at its own expense, cause casualty and property
insurance to be carried and maintained with respect to the Leased Property in an amount equal to
the estimated replacement cost of the Leased Property. Such insurance policy or policies may
have a deductible clause in an amount deemed reasonable by the Council. The Town may, in its
discretion, insure the Leased Property under blanket insurance policies which insure not only the
Leased Property, but other buildings as well, as long as such blanket insurance policies comply
with the requirements hereof. If the Town shall insure against similar risks by self-insurance, the
Town may, at its election provide for casualty and property damage insurance with respect to the
Leased Property, partially or wholly by means of a self-insurance fund. If the Town shall elect
to self-insure, the Town Representative shall annually furnish to the Trustee a certification of the
adequacy of the Town’s reserves. The Trustee shall be named additional insured and loss payee
on any casualty and property insurance.
Upon the execution and delivery of this Lease, the Town shall, at its own expense, cause
public liability insurance to be carried and maintained with respect to the activities to be
undertaken by and on behalf of the Town in connection with the use of the Leased Property, in
an amount not less than the limitations provided in the Colorado Governmental Immunity Act
(Article 10, Title 24, Colorado Revised Statutes, as heretofore or hereafter amended). Such
insurance may contain deductibles and exclusions deemed reasonable by the Council. The
public liability insurance required by this Section may be by blanket insurance policy or policies.
If the Town shall insure against similar risks by self-insurance, the Town, at its election may
provide for public liability insurance with respect to the Leased Property, partially or wholly by
means of a self-insurance fund. If the Town shall elect to self-insure, the Town Representative
shall annually furnish to the Trustee a certification of the adequacy of the Town’s reserves. The
Trustee shall be named as additional insured and loss payee on any public liability insurance.
Any casualty and property damage insurance policy required by this Section shall be so
written or endorsed as to make payments under such insurance policy payable to the Town and
the Trustee. Each insurance policy provided for in this Section shall contain a provision to the
effect that the insurance company shall not cancel the policy without first giving written notice
thereof to the Town at least 30 days in advance of such cancellation.
31
Upon the initial execution and delivery of this Lease, the Town shall provide the Trustee
with evidence that the insurance required pursuant to this Section 8.4 is in effect. A certification
by the Town Representative that such insurance is in effect shall be sufficient evidence of
insurance. A certificate of insurance from the Town or the Town’s insurance agent will also be
acceptable evidence of insurance. On or about October 1 in each year the Town shall provide
annual certification that the insurance required pursuant to this Section 9.4 is in effect.
Section 9.5 Advances. If the Town fails to pay any Additional Rentals during the
Lease Term as such Additional Rentals become due, the Trustee may (but shall not be obligated
to) pay such Additional Rentals and the Town agrees to reimburse the Trustee to the extent
permitted by law and subject to Appropriation as provided under Article 6 hereof.
Section 9.6 Granting of Easements. As long as no Event of Nonappropriation or
Event of Lease Default shall have happened and be continuing, the Trustee, shall upon the
request of the Town, (a) grant or enter into easements, permits, licenses, party wall and other
agreements, rights-of-way (including the dedication of public roads) and other rights or
privileges in the nature of easements, permits, licenses, party wall and other agreements and
rights of way with respect to any property or rights included in this Lease (whether such rights
are in the nature of surface rights, sub-surface rights or air space rights), free from this Lease and
any security interest or other encumbrance created hereunder or thereunder; (b) release existing
easements, permits, licenses, party wall and other agreements, rights-of-way, and other rights
and privileges with respect to such property or rights, with or without consideration; and (c)
execute and deliver any instrument necessary or appropriate to grant, enter into or release any
such easement, permit, license, party wall or other agreement, right-of-way or other grant or
privilege upon receipt of: (i) a copy of the instrument of grant, agreement or release and (ii) a
written application signed by the Town Representative requesting such grant, agreement or
release and stating that such grant, agreement or release will not materially impair the effective
use or materially interfere with the operation of the Leased Property, and will not materially
adversely affect the security intended to be given by or under the Indenture, the Site Lease or this
Lease.
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ARTICLE 10
DAMAGE, DESTRUCTION AND CONDEMNATION;
USE OF NET PROCEEDS
Section 10.1 Damage, Destruction and Condemnation. If, during the Lease Term,
(a)
the Leased Property shall be destroyed (in whole or in part), or damaged
by fire or other casualty; or
(b)
title to, or the temporary or permanent use of, the Leased Property or the
estate of the Town or the Trustee in the Leased Property is taken under the exercise of the
power of eminent domain by any governmental body or by any person, firm or entity
acting under governmental authority; or
(c)
a breach of warranty or a material defect in the construction, manufacture
or design of the Leased Property becomes apparent; or
(d)
title to or the use of all or a portion of the Leased Property is lost by
reason of a defect in title thereto.
then the Town shall be obligated to continue to pay Base Rentals and Additional Rentals (subject
to Article 6 hereof).
Section 10.2 Obligation to Repair and Replace the Leased Property. The Town and
the Trustee, to the extent Net Proceeds are within their respective control, shall cause such Net
Proceeds of any insurance policies, performance bonds or condemnation awards to be deposited
in a separate trust fund. All Net Proceeds so deposited shall be applied to the prompt repair,
restoration, modification, improvement or replacement of the Leased Property by the Town,
upon receipt of requisitions by the Trustee signed by the Town Representative stating with
respect to each payment to be made:
(a)
the requisition number;
(b)
the name and address of the person, firm or entity to whom payment is
(c)
the amount to be paid; and
due;
(d)
that each obligation mentioned therein has been properly incurred, is a
proper charge against the separate trust fund and has not been the basis of any previous
withdrawal and specifying in reasonable detail the nature of the obligation, accompanied
by a bill or a statement of account for such obligation.
The Trustee shall have no duty to review or examine the accompanying bill, invoice or
statement of account, but may conclusively rely on the properly executed disbursement request.
The Town and the Trustee shall agree to cooperate and use their best reasonable efforts subject to
the terms of the Indenture to enforce claims which may arise in connection with material defects
in the construction, manufacture or design of the Leased Property or otherwise. If there is a
33
balance of any Net Proceeds allocable to the Leased Property remaining after such repair,
restoration, modification, improvement or replacement has been completed, this balance shall be
used by the Town, to:
(a)
thereto, or
add to, modify or alter the Leased Property or add new components
(b)
prepay the Base Rentals with a corresponding adjustment in the amount of
Base Rentals payable under Exhibit C (Base Rentals Schedule) to this Lease or
(c)
accomplish a combination of (a) and (b).
Any repair, restoration, modification, improvement or replacement of the Leased
Property paid for in whole or in part out of Net Proceeds allocable to the Leased Property shall
be subject to the Site Lease, this Lease and the Indenture and shall be included as part of the
Leased Property under this Lease.
Section 10.3 Insufficiency of Net Proceeds. If the Net Proceeds (plus any amounts
withheld from such Net Proceeds by reason of any deductible clause) are insufficient to pay in
full the cost of any repair, restoration, modification, improvement or replacement of the Leased
Property required under Section 10.2 of this Lease, the Town may elect to:
(a)
complete the work or replace such Leased Property (or portion thereof)
with similar property of a value equal to or in excess of such portion of the Leased
Property and pay as Additional Rentals, to the extent amounts for Additional Rentals
which have been specifically appropriated by the Town are available for payment of such
cost, any cost in excess of the amount of the Net Proceeds allocable to the Leased
Property, and the Town agrees that, if by reason of any such insufficiency of the Net
Proceeds allocable to the Leased Property, the Town shall make any payments pursuant
to the provisions of this paragraph, the Town shall not be entitled to any reimbursement
therefor from the Trustee, nor shall the Town be entitled to any diminution of the Base
Rentals and Additional Rentals, for which a specific Appropriation has been effected by
the Town for such purpose, payable under Article 6 of this Lease; or
(b)
apply the Net Proceeds allocable to the Leased Property to the payment of
the Purchase Option Price in accordance with Article 12 of this Lease, or an appropriate
portion thereof. In the event of an insufficiency of the Net Proceeds for such purpose, the
Town shall, subject to the limitations of Section 6.1 hereof, pay such amounts as may be
necessary to equal that portion of the Purchase Option Price which is attributable to the
Leased Property for which Net Proceeds have been received (as certified to the Trustee
by the Town); and in the event the Net Proceeds shall exceed such portion of the
Purchase Option Price, such excess shall be used as directed by the Town in the same
manner as set forth in Section 10.2 hereof; or
(c)
if the Town does not timely budget and appropriate sufficient funds to
proceed under either (a) or (b) above, an Event of Nonappropriation will 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.
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The above referenced election shall be made by the Town within 90 days of the
occurrence of an event specified in Section 10.1 of this Lease. It is hereby declared to be the
Town’s present intention that, if an event described in Section 10.1 hereof should occur and if
the Net Proceeds shall be insufficient to pay in full the cost of repair, restoration, modification,
improvement or replacement of the Leased Property, the Town would use its best efforts to
proceed under either paragraph (a) or paragraph (b) above; but it is also acknowledged that the
Town must operate within budgetary and other economic constraints applicable to it at the time,
which cannot be predicted with certainty; and accordingly the foregoing declaration shall not be
construed to contractually obligate or otherwise bind the Town.
Section 10.4 Cooperation of the Trustee. The Trustee shall cooperate fully with the
Town in filing any proof of loss with respect to any insurance policy or performance bond
covering the events described in Section 10.1 of this Lease and in the prosecution or defense of
any prospective or pending condemnation proceeding with respect to the Leased Property and
the enforcement of all warranties relating to the Leased Property. So long as no Event of Lease
Default or Event of Nonappropriation has occurred and is then existing, the Trustee 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
with respect to the Leased Property without the written consent of the Town.
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ARTICLE 11
DISCLAIMER OF WARRANTIES; OTHER COVENANTS
Section 11.1 Disclaimer of Warranties. THE TRUSTEE HAS NOT MADE AND
WILL NOT MAKE ANY 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. THE TOWN HEREBY ACKNOWLEDGES AND DECLARES
THAT THE TOWN IS SOLELY RESPONSIBLE FOR THE MAINTENANCE AND
OPERATION OF THE LEASED PROPERTY, AND THAT THE TRUSTEE HAS NO
RESPONSIBILITY THEREFOR. For the purpose of enabling the Town to discharge such
responsibility, the Trustee constitutes and appoints the Town as its attorney in fact for the
purpose of asserting and enforcing, at the sole cost and expense of the Town, all manufacturer’s
warranties and guaranties, express or implied, with respect to the Leased Property, as well as any
claims or rights the Trustee may have in respect of the Leased Property against any
manufacturer, supplier, contractor or other person. Except as otherwise provided in this Lease,
the Trustee shall not be liable for any direct or indirect, incidental, special, punitive 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 except that
nothing shall relieve the Trustee’s liability for any claims, damages, liability or court awards,
including costs, expenses and attorney fees, relating to or arising from the Trustee’s actions or
omissions that result from the negligence, bad faith or intentional misconduct of the Trustee or
its employees.
Section 11.2 Further Assurances and Corrective Instruments. The Trustee and the
Town agree that they will, from time to time, execute, acknowledge and deliver, or cause to be
executed, acknowledged and delivered, such amendments hereof or supplements hereto and such
further instruments as may reasonably be required for correcting any inadequate or incorrect
description of the Leased Property.
Section 11.3 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, provided that the Town and 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.
Section 11.4 Release and Substitution of Leased Property. So long as no Event of
Default or Event of Nonappropriation shall have occurred and be continuing, the Town shall be
entitled to substitute any improved or unimproved real estate (collectively, the “Replacement
Property”), for any Leased Property then subject to the Site Lease, this Lease and the Indenture,
upon receipt by the Trustee of a written request of the Town Representative requesting such
release and substitution, provided that:
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(a)
such Replacement Property shall have an equal or greater value and utility
(but not necessarily the same function) to the Town as the Leased Property proposed to
be released, as determined by a certificate from the Town to that effect;
(b)
the fair market value of Replacement Property shall be not less than the
fair market value of the Leased Property proposed to be released from this Lease and the
Indenture, or, in the alternative, the fair market value of the Leased Property remaining
after the proposed release shall be at least equal to the aggregate principal amount of the
Outstanding Certificates. The fair market value of any improved or unimproved real
property shall be determined by an M.A.I. appraisal report prepared by an independent
real estate appraiser and submitted by the Town to the Trustee;
(c)
the Initial Purchaser has consented to the substitution of the Replacement
Property; and
(d)
the execution and delivery of such supplements and amendments to the
Site Lease, as applicable, this Lease and the Indenture and any other documents
necessary to subject any Replacement Property to be substituted for the portion of the
Leased Property to be released to the lien of the Indenture.
The Trustee shall cooperate with the Town in implementing the Town’s rights to release
and substitute property pursuant to this Section 11.4 and shall execute any and all conveyances,
releases or other documents necessary or appropriate in connection therewith. The Town agrees
that any cash paid to the Trustee pursuant to the provisions of this Section 11.4 shall be used to
redeem or defease Outstanding Certificates.
Section 11.5 Covenant to Reimburse Legal Expenses. To the extent permitted by law
and subject to Appropriation by the Council, the Town shall defend and hold harmless the
Trustee against claims arising from the alleged negligent acts or omissions of the Town’s public
employees, which occurred or are alleged to have occurred during the performance of their
duties and within the scope of their employment, unless such acts or omissions are, or are alleged
to be, willful and wanton. Such claims shall be subject to the limitations of the Colorado
Governmental Immunity Act, C.R.S. 24-10-101 to 24-10-120. The Town shall include as
Additional Rentals, the reimbursement of reasonable and necessary expenses incurred by the
Trustee to defend the Trustee from and against all claims, by or on behalf of any person, firm,
corporation or other legal entity arising from the conduct or management of the Leased Property
or from any work or thing done on the Leased Property during the Lease Term requested by the
Town, or from any condition of the Leased Property caused by the Town. This duty to
reimburse the Trustee’s legal expenses is not an indemnification and it is expressly understood
that the Town is not indemnifying the Trustee and, as previously stated, is limited to Net
Proceeds and moneys, if any, in excess of such Net Proceeds, for which an Appropriation has
been effected.
Section 11.6 Access to the Leased Property; Rights to Inspect Books. The Town
agrees that the Trustee shall have the right at all reasonable times to examine and inspect the
Leased Property (subject to such regulations as may be imposed by the Town for security
purposes) and all of the Town’s books and records with respect thereto, but the Trustee has no
37
duty to inspect the Leased Property books or records. The Town further agrees that the Trustee
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. The Indenture allows the Town to have the right at all reasonable
times to examine and inspect all of the Trustee’s books and records with respect to the Leased
Property and all funds and accounts held under the Indenture.
The Town and its representatives shall have the right to examine and inspect the books
and records of the Trustee relating to the Leased Property at all reasonable times from the date of
this Lease and until three years after the termination date of this Lease.
Section 11.7 Financial Statements. Each year during the term of this Lease, the Town
hereby agrees to deliver to the Initial Purchaser a copy of: (i) annual audited financial statements
within one hundred eighty (180) days of the Town’s fiscal year-end; (ii) the annual budget for
such Fiscal Year, as approved by the Council, within ten (10) days of such approval, but in any
case prior to the commencement of each Fiscal Year; and (iii) any other financial information the
Initial Purchaser requests from time to time, within a reasonable period of time after such
request.
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ARTICLE 12
PURCHASE OPTION
Section 12.1 Purchase Option. The Town shall have the option to purchase the
Trustee’s interest in the Leased Property, but only if an Event of Lease Default or an Event of
Nonappropriation has not occurred and is then continuing. The Town may exercise its option on
any date by complying with one of the conditions set forth in Section 12.2.
The Town shall give the Trustee notice of its intention to exercise its option not less than
forty-five (45) days in advance of the date of exercise and shall deposit the required moneys with
the Trustee on or before the date selected to pay the Purchase Option Price. The Trustee may
waive such notice or may agree to a shorter notice period in the sole determination of the
Trustee.
If the Town shall have given notice to the Trustee of its intention to purchase the
Trustee’s interest in 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, which
have been specifically appropriated by the Town for such purpose, as if no such notice had been
given.
Section 12.2 Conditions for Purchase Option. The Trustee shall transfer and release
the Trustee’s leasehold interest in the Site and convey and transfer the Trustee’s ownership
interest in the Project to the Town in the manner provided for in Section 12.3 of this Lease;
provided, however, that prior to such transfer, conveyance and release, either:
(a)
the Town shall have paid the then applicable Purchase Option Price, plus
any fees and expenses then owing to the Trustee and any other Additional Rentals
required to be paid hereunder; or
(b)
the Town shall have paid all Base Rentals set forth in Exhibit C (Base
Rentals Schedule) hereto, for the entire maximum Lease Term, and all then current
Additional Rentals required to be paid hereunder.
At the Town’s option, amounts then on deposit in any fund held under the Indenture
(except any defeasance escrow funds) may be credited toward the Purchase Option Price.
Section 12.3 Manner of Conveyance. At the closing of the purchase or other
conveyance of all of the Trustee’s interest in the Leased Property pursuant to Section 12.2 of this
Lease, the Trustee shall release and terminate the Site Lease, this Lease and the Indenture and
execute and deliver to the Town any necessary documents releasing, assigning, transferring and
conveying the Trustee’s interest in the Leased Property, as they then exist, subject only to the
following:
(a)
Indenture;
Permitted Encumbrances, other than the Site Lease, this Lease and the
(b)
all liens, encumbrances and restrictions created or suffered to exist by the
Trustee as required or permitted by the Site Lease, this Lease or the Indenture or arising
39
as a result of any action taken or omitted to be taken by the Trustee as required or
permitted by the Site Lease, this Lease or the Indenture;
(c)
Town; and
any lien or encumbrance created or suffered to exist by action of the
(d)
those liens and encumbrances (if any) to which title to the Leased Property
was subject when leased to the Trustee.
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ARTICLE 13
ASSIGNMENT AND SUBLEASING
Section 13.1 Assignment by the Trustee; Replacement of the Trustee. Except as
otherwise provided in this Lease and the Indenture, this Lease may not be assigned by the
Trustee for any reason other than to a successor by operation of law or to a successor trustee
under the Indenture or with the prior written consent of the Town which consent shall not be
unreasonably withheld. The Trustee will notify the Town of any assignment to a successor by
operation of law.
If an Event of Lease Default or Event of Nonappropriation has occurred and is
continuing, the Trustee may act as herein provided, including exercising the remedies set forth in
Section 14.2, without the prior written direction of the Town.
Section 13.2 Assignment and Subleasing by the Town. This Lease may not be
assigned by the Town for any reason other than to a successor by operation of law. However, the
Leased Property may be subleased, as a whole or in part, by the Town, without the necessity of
obtaining the consent of the Trustee or any owner of the Certificates subject to each of the
following conditions:
(a)
This Lease, and the obligations of the Town hereunder, shall, at all times
during the Lease Term remain obligations of the Town, and the Town shall maintain its
direct relationships with the Trustee, notwithstanding any sublease;
(b)
The Town shall furnish or cause to be furnished to the Trustee a copy of
any sublease agreement; and
(c)
Any sublease of the Leased Property shall provide that it shall
automatically terminate upon a termination of this Lease.
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ARTICLE 14
EVENTS OF LEASE DEFAULT AND REMEDIES
Section 14.1 Events of Lease Default Defined. Any one of the following shall be
Events of Lease Default under this Lease:
(a)
failure by the Town to pay any Base Rentals or Additional Rentals, which have
been specifically appropriated by the Town for such purpose, during the Initial Term or any
Renewal Term, within five (5) Business Days of the date on which they are due; or
(b)
subject to the provisions of Section 6.5 hereof, failure by the Town to vacate or
surrender possession of the Leased Property by March 1 of any Renewal Term in respect of
which an Event of Nonappropriation has occurred; or
(c)
failure by the Town to observe and perform any covenant, condition or agreement
on its part to be observed or performed hereunder, other than as referred to in (a) or (b), for a
period of 30 days after written notice, specifying such failure and requesting that it be remedied
shall be received by the Town from the Trustee, unless the Trustee shall agree in writing to an
extension of such time prior to its expiration; provided that if the failure stated in the notice
cannot be corrected within the applicable period, the Trustee shall not withhold its consent to an
extension of such time if corrective action can be instituted by the Town within the applicable
period and diligently pursued until the default is corrected; or
(d)
failure by the Town to comply with the terms of the Site Lease.
The foregoing provisions of this Section 14.1 are subject to the following limitations:
(i)
the Town shall be obligated to pay the Base Rentals and Additional
Rentals, which have been specifically appropriated by the Town for such purpose, only
during the then current Lease Term, except as otherwise expressly provided in this Lease;
and
(ii)
if, by reason of Force Majeure, the Town or the Trustee shall be unable in
whole or in part to carry out any agreement on their respective parts herein contained
other than the Town’s agreement to pay the Base Rentals and Additional Rentals due
hereunder, the Town or the Trustee shall not be deemed in default during the continuance
of such inability. The Town and the Trustee each agree, however, to remedy, as
promptly as legally and reasonably possible, the cause or causes preventing the Town or
the Trustee from carrying out their respective agreements; provided that the settlement of
strikes, lockouts and other industrial disturbances shall be entirely within the discretion of
the Town.
Section 14.2 Remedies on Default. Whenever any Event of Lease Default shall have
happened and be continuing beyond any applicable cure period, the Trustee may, or shall at the
request 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 the Indenture,
without any further demand or notice, take one or any combination of the following remedial
steps:
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(a)
terminate the Lease Term and give notice to the Town to vacate and surrender
possession of the Leased Property, which vacation and surrender the Town agrees to complete
within sixty (60) days from the date of such notice; provided, in the event the Town does not
vacate and surrender possession on the termination date, the provisions of Section 6.5 hereof
shall apply;
(b)
lease or sublease the Leased Property or sell or assign any interest the Trustee has
in the Leased Property, including the Trustee’s leasehold interest in the Site and the Trustee’s
ownership interest in the Project;
(c)
recover from the Town:
(i)
the portion of Base Rentals and Additional Rentals, for which a specific
Appropriation has been effected by the Town for such purpose, which
would otherwise have been payable hereunder, during any period in which
the Town continues to occupy, use or possess the Leased Property; and
(ii)
Base Rentals and Additional Rentals, for which a specific Appropriation
has been effected by the Town for such purpose, which would otherwise
have been payable by the Town hereunder during the remainder, after the
Town vacates and surrenders possession of the Leased Property, of the
Fiscal Year in which such Event of Lease Default occurs.
(d)
take whatever action at law or in equity may appear necessary or desirable to
enforce its rights in and to the Leased Property under the Site Lease, this Lease and the
Indenture.
Upon the occurrence of an Event of Nonappropriation, the Trustee shall be entitled to
recover from the Town the amounts set forth in Section 14.2(c)(i) hereof if the Town continues
to occupy the Leased Property after December 31 of the Fiscal Year in which such Event of
Nonappropriation occurs.
The Trustee shall also be entitled, upon any Event of Lease Default, to any moneys in any
funds or accounts created under the Indenture (except any defeasance escrow accounts).
Notwithstanding the foregoing provisions or any other provisions in the Site Lease, this
Lease or the Indenture, the Trustee shall not take any remedial action under the Site Lease, this
Lease or the Indenture, including without limitation this Section 14.2, without the prior written
consent and direction of the Initial Purchaser. Before taking any such action as directed by the
Initial Purchaser, the Trustee shall be entitled to the indemnification provided in the Indenture.
Section 14.3 Limitations on Remedies. The remedies in connection with an Event of
Lease Default shall be limited as set forth in this Section. A judgment requiring a payment of
money may be entered against the Town by reason of an Event of Lease Default only as to the
Town’s liabilities described in paragraph (c) of Section 14.2 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 6.4 of this Lease, and only as to the liabilities described in paragraph (c)(i)
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of Section 14.2 hereof. The remedy described in paragraph (c)(ii) of Section 14.2 of this Lease is
not available for an Event of Lease Default consisting of failure by the Town to vacate and
surrender possession of the Leased Property by March 1 following an Event of
Nonappropriation.
Section 14.4 No Remedy Exclusive. Subject to Section 14.3 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 14, it shall not be necessary to give any notice, other than such notice as may be required
in this Article 14.
Section 14.5 Waivers. With the consent of the Initial Purchaser, the Trustee may waive
any Event of Lease Default under this Lease and its consequences. 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. Payment of Base Rentals or Additional Rentals by
the Town shall not constitute a waiver of any breach or default by the Trustee hereunder.
Section 14.6 Agreement to Pay Attorneys’ Fees and Expenses. 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 or 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, to the extent permitted by law, the reasonable fees of
such attorneys and such other reasonable expenses so incurred by the nondefaulting party.
Notwithstanding the foregoing, any such fees and expenses owed by the Town hereunder shall
constitute Additional Rentals for all purposes of this Lease and shall be subject to Appropriation.
Section 14.7 Waiver of Appraisement, Valuation, Stay, Extension and Redemption
Laws. To the extent permitted by law, in the case of an Event of Nonappropriation or an Event of
Lease Default neither the Trustee nor the Town nor any one claiming through or under either 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. Notwithstanding the foregoing, it is expressly
understood that the Town cannot and does not hereby waive its right to set up, claim or seek to
take advantage of its police powers or its Colorado constitutional or statutory right of eminent
domain.
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ARTICLE 15
MISCELLANEOUS
Section 15.1 Sovereign Powers of Town. Nothing in this Lease shall be construed as
diminishing, delegating, or otherwise restricting any of the sovereign powers or immunities of
the Town. Nothing in this Lease shall be construed to require the Town to occupy and operate
the Leased Property other than as lessee, or to require the Town to exercise its right to purchase
the Leased Property as provided in Article 12 hereof.
Section 15.2 Notices. All notices, certificates or other communications to be given
hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by
certified or registered mail, postage prepaid, addressed as follows:
if to the Trustee,
UMB Bank, n.a.
1670 Broadway
Denver, CO 80202
Attention: Corporate Trust and Escrow Services
if to the Town,
Town of Winter Park, Colorado
50 Vasquez Road
P.O. Box 3327
Winter Park, Colorado 80482
Attention: Finance Director
The Town and the Trustee may, by written notice, designate any further or different
means of communication or addresses to which subsequent notices, certificates or other
communications shall be sent.
Notices to be given to the Initial Purchaser or other Owners of the Certificates shall be
sufficiently given and shall be deemed given when delivered or mailed by certified or registered
mail, postage prepaid, addressed to the addresses show in the registration books maintained by
the Trustee. The Initial Purchaser may also provide the Trustee and the Town with an alternative
means of communication, including electronic mail.
Section 15.3 Third Party Beneficiaries. It is expressly understood and agreed that the
Owners of the outstanding Certificates are third party beneficiaries to this Lease and enforcement
of the terms and conditions of this Lease, and all rights of action relating to such enforcement,
shall be strictly reserved to the Town, as lessee and the Trustee, as lessor, and their respective
successors and assigns, and to the Owners of the Certificates. Except as hereinafter provided,
nothing contained in this Lease shall give or allow any such claim or right of action by any other
or third person on this Lease. It is the express intention of the Town and the Trustee that any
person other than the Town, the Trustee, or the Owners of the Certificates receiving services or
benefits under this Lease shall be deemed to be an incidental beneficiary only.
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Section 15.4 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 contained in Article 13 of this Lease.
Section 15.5 Amendments. This Lease may only be amended, changed, modified or
altered with the prior written consent of the Town and the Trustee and in accordance with the
provisions of the Indenture. So long as the Initial Purchaser is the registered Owner of all
outstanding Certificates, this Lease may not be materially amended, changed, modified or altered
without the prior written consent of the Initial Purchaser, which consent shall not be
unreasonably withheld.
Section 15.6 Amounts Remaining in Funds. It is agreed by the parties hereto that any
amounts remaining in the Base Rentals Fund, the Construction Fund, the Costs of Execution and
Delivery Fund, or any other fund or account created under the Indenture (except any defeasance
escrow account), 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 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 15.7 Triple Net Lease. This Lease shall be deemed and construed to be a
“triple net lease” and, subject to the prior Appropriation requirements hereof, the Town shall pay
absolutely net during the Lease Term, the Base Rentals, the Additional Rentals and all expenses
of, or other payments in respect of, the Leased Property as required to be paid by the Town under
this Lease, for which a specific Appropriation has been effected by the Town for such purpose,
free of any deductions, and without abatement, deduction or setoff (other than credits against
Base Rentals expressly provided for in this Lease).
Section 15.8 Computation of Time. In computing a period of days, the first day is
excluded and the last day is included. If the last day of any period is not a Business Day, the
period is extended to include the next day which is a Business Day. If a number of months is to
be computed by counting the months from a particular day, the period ends on the same
numerical day in the concluding month as the day of the month from which the computation is
begun, unless there are not that many days in the concluding month, in which case the period
ends on the last day of that month.
Section 15.9 Payments Due on Holidays. If the date for making any payment or the
last day for performance of any act or the exercising of any right, as provided in this Lease, shall
be a day other than a Business Day, such payment may be made or act performed or right
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 15.10 Severability. Except for the requirement of the Town to pay Base Rentals
for which a specific Appropriation has been effected by the Town for such purpose and the
requirement of the Trustee to provide quiet enjoyment of the Leased Property and to convey the
Trustee’s interest in the Leased Property to the Town under the conditions set forth in Article 12
of this Lease (which, if held invalid or unenforceable by any court of competent jurisdiction,
46
may have the effect of invalidating or rendering unenforceable the other provisions of this
Lease), in the event that any other provision of this Lease 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 15.11 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 15.12 Applicable Law. This Lease shall be governed by and construed in
accordance with the law of the State of Colorado.
Section 15.13 The Trustee Is Independent of the Town. Neither the Trustee nor any
agent or employee of the Trustee shall be or shall be deemed to be an agent or employee of the
Town. The Trustee acknowledges that the Trustee and its employees are not entitled to
unemployment insurance benefits of the Town unless the Trustee or a third party otherwise
provides such coverage and that the Town does not pay for or otherwise provide such coverage.
The Trustee shall have no authorization, express or implied, to bind the Town to any agreements,
liability or understanding except as expressly set forth herein.
Section 15.14 Governmental Immunity. Notwithstanding any other provisions of this
Lease to the contrary, no term or condition of this Lease 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, Section 24-10-101, et. seq., C.R.S., as
now or hereafter amended.
Section 15.15 Recitals. The Recitals set forth in this Lease are hereby incorporated by
this reference and made a part of this Lease.
Section 15.16 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.
Section 15.17 Trustee’s Disclaimer. It is expressly understood and agreed that (a) the
Lease is executed by UMB Bank, n.a. solely in its capacity as Trustee under the Indenture, and
(b) nothing herein shall be construed as creating any liability on UMB Bank, n.a. other than in its
capacity as Trustee under the Indenture. All financial obligations of the Trustee under this
Lease, except those resulting from its willful misconduct or negligence, are limited to the Trust
Estate.
Section 15.18 Electronic Transactions. The parties hereto agree that the transactions
described herein may be conducted and related documents may be stored by electronic means.
Copies, telecopies, facsimiles, electronic files and other reproductions of original executed
documents shall be deemed to be authentic and valid counterparts of such original documents for
all purposes, including the filing of any claim, action or suit in the appropriate court of law.
47
IN WITNESS WHEREOF, the parties have executed this Lease Purchase Agreement as
of the day and year first above written.
as Lessee
UMB BANK, N.A., solely in its capacity of
Trustee under the Indenture, as Lessor
By: ________________________________
By: ________________________________
Leigh Lutz, Senior Vice President
Attest:
By:_____________________________
[TOWN SEAL]
48
STATE OF COLORADO
TOWN OF WINTER PARK
COUNTY OF GRAND
)
) ss.
)
)
)
The foregoing instrument was acknowledged before me this ____ day of _______, 2016,
by Jimmy Lahrman and Taryn Martin, as Mayor and Town Clerk, respectively, of the Town of
Winter Park, Colorado.
(SEAL)
____________________________________
Notary Public
****************
STATE OF COLORADO
)
CITY AND COUNTY OF DENVER
)
)
ss.
The foregoing instrument was acknowledged before me this ____ day of ______, 2016,
by Leigh Lutz, as Senior Vice President of UMB Bank, n.a., as Trustee.
(SEAL)
____________________________________
Notary Public
49
EXHIBIT A
DESCRIPTION OF LEASED PROPERTY
The Leased Property consists of the Site and the premises, buildings and improvements
located thereon as set forth below, as amended from time to time.
Site:
Tract B, Riverwalk at Winter Park, according to the Plat thereof filed March 17, 2000, at
Reception No. 2000-002589.
Description of Project:
[describe]
A-1
EXHIBIT B
PERMITTED ENCUMBRANCES
“Permitted Encumbrances” as defined in Section 1.2 of this Lease and the following:
(1)
Liens for ad valorem taxes and special assessments not then delinquent, if
applicable.
(2)
The Site Lease.
(3)
This Lease.
(4)
All other encumbrances appearing of record on the date hereof.
B-1
EXHIBIT C
BASE RENTALS SCHEDULE (1)
Date
Base Rentals
Principal
Component
Base Rentals
Interest
Component
Total Base
Rentals
Annual Base
Rentals
TOTAL
________________
Base Rental payments are due on [February 15, May 15, August 15 and November 15] of
each year during the Lease Term. The Base Rentals have been calculated on the basis of a 360day year of twelve 30-day months. If Base Rentals are stated to be due on any date that is not a
Business Day, such Base Rentals shall be due on the next day that is a Business Day without the
accrual of interest on Base Rentals between such dates.
C-1
Statement Regarding the Leased Property
The duration of the Lease, throughout the maximum Lease Term, does not exceed the
weighted average useful life of the Leased Property.
C-2
EXHIBIT D
FORM OF NOTICE OF LEASE RENEWAL
To:
UMB Bank, n.a., as Trustee
The undersigned is the Town Representative of the Town of Winter Park, Colorado (the
“Town”). The Town is the lessee under that certain Lease Purchase Agreement, dated as of
August __, 2016 (the “Lease”), between the Town and UMB Bank, n.a., solely in its capacity of
Trustee under the Indenture, as the lessor thereunder. I am familiar with the facts herein certified
and am authorized and qualified to certify the same. The undersigned hereby states and certifies:
(a)
the Town has effected or intends to effect on a timely basis an
Appropriation for the ensuing Fiscal Year which includes (1) sufficient amounts
authorized and directed to be used to pay all the Base Rentals and (2) sufficient amounts
to pay such Additional Rentals as are estimated to become due, all as further provided in
Sections 6.2, 6.3 and 6.4 of the Lease, whereupon, the Lease shall be renewed for the
ensuing Fiscal Year;
_______________
Initial
or
(b)
the Town has determined not to renew the Lease for the ensuing Fiscal
Year.
_______________
Initial
By:
Town Representative
Date:____________________________________________
D-1
EXHIBIT E
FORM OF REQUISITION
REQUISITION NO. ______
To:
Facsimile number: ______________
The undersigned Town Representative (the “Town Representative”) of and for the Town
of Winter Park, Colorado (the “Town”), as the lessee’s representative under the Lease Purchase
Agreement, dated as of August __, 2016 (the “Lease”), between UMB Bank, n.a., as trustee, as
lessor, and the Town, as lessee, hereby requisitions the following sum from the Construction
Fund established under the Indenture of Trust, dated as of August __, 2016 (the “Indenture”),
entered into by UMB Bank, n.a., as Trustee, and in connection with such request, certifies as
follows:
Amount: $________________
Name and Address of Payee:
Describe Nature of Obligation:
The Town Representative further certifies that:
(a)
the obligation described above has been properly incurred, is a proper
charge against the Construction Fund and has not been the basis of any previous
withdrawal or requisition;
(b)
all conditions required by the Lease and the Indenture to be met prior to
the disbursement of the above amount have been satisfied;
(c)
the disbursement requested is due and payable and will be used for the
“Costs of the Project” permitted under the Lease and the Indenture;
(d)
the Town is not in breach of any of the agreements contained in the Lease;
and
(e)
continuing.
No Event of Default or Event of Nonappropriation has occurred and is
E-1
By:
Town Representative
E-2
EXHIBIT F
CERTIFICATE OF COMPLETION
To:
The undersigned hereby states and certifies that:
1.
I am the Town Representative (the “Town Representative”) of and for the Town
of Winter Park, Colorado (the “Town”), acting as the lessee’s representative under the Lease
Purchase Agreement, dated as of August __, 2016 (the “Lease”), between UMB Bank, n.a., as
trustee, as lessor, and the Town, as lessee. I am familiar with the facts herein certified and am
authorized and qualified to certify the same.
2.
The Project described in the Lease is substantially complete and all Costs of the
Project as described therein have been paid except for the following amounts to be set aside by
the Trustee to pay remaining Costs of the Project: $__________. This Certificate shall constitute
the Certificate of Completion for the purposes of the Lease and the definition of “Certificate of
Completion” therein.
3.
Notwithstanding the foregoing, this Certificate shall not prejudice any rights
against third parties which exist at the date hereof or which may subsequently come into being.
4.
In accordance with Section 7.3 of the Lease and Section 3.04 of the Indenture, the
Town hereby directs the Trustee to apply any balance remaining in the Construction Fund as
follows: ______________________________________________________________________.
By:
Town Representative
31933258v3
F-1
TOWN OF WINTER PARK
ORDINANCE NO. 499
SERIES OF 2016
AN ORDINANCE OF THE WINTER PARK TOWN COUNCIL AUTHORIZING THE
FINANCING OF CERTAIN PUBLIC IMPROVEMENTS OF THE TOWN, AND IN
CONNECTION THEREWITH AUTHORIZING THE LEASING OF CERTAIN TOWN
PROPERTY AND THE EXECUTION AND DELIVERY BY THE TOWN OF A SITE LEASE,
A LEASE PURCHASE AGREEMENT, AND OTHER DOCUMENTS AND MATTERS
RELATING TO CERTAIN CERTIFICATES OF PARTICIPATION, SERIES 2016; SETTING
FORTH CERTAIN PARAMETERS AND RESTRICTIONS WITH RESPECT TO THE
FINANCING; AUTHORIZING OFFICIALS OF THE TOWN TO TAKE ALL ACTION
NECESSARY TO CARRY OUT THE TRANSACTIONS CONTEMPLATED HEREBY;
RATIFYING ACTIONS PREVIOUSLY TAKEN; AND PROVIDING FOR OTHER MATTERS
RELATED THERETO
WHEREAS, the Town of Winter Park, Colorado (the “Town”) is a duly organized and
existing home rule municipality of the State of Colorado, created and operating pursuant to Article
XX of the Constitution of the State of Colorado and the home rule charter of the Town (the
“Charter”);
WHEREAS, pursuant to Section 1.4 of the Charter, the Town may acquire property for any
purpose deemed by the Town Council of the Town (the “Council”) to be in the Town’s best interest
by purchase, gift, lease or condemnation and may sell, lease, mortgage, hold, manage and control such
property as the Council may determine;
WHEREAS, pursuant to Section 10.10 of the Charter, the Council may enter into leasepurchase agreements and installment-purchase agreements as a means of acquiring any real or personal
property;
WHEREAS, pursuant to Section 13.3 of the Charter, the Council may sell, exchange or
dispose of permanent public buildings or real property by ordinance and may mortgage or encumber
permanent public buildings or real property by ordinance;
WHEREAS, pursuant to Section 13.4 of the Charter, the Council may enter into a lease or
lease-option for such time as Council shall determine, for real or personal property to or from any
person, firm or corporation, public or private, governmental or otherwise by ordinance or resolution;
WHEREAS, the Town is authorized by Article XX, Section 6 of the Colorado Constitution,
and part 8 of Article 15 of title 31, Colorado Revised Statutes (“C.R.S.”), to enter into rental or
leasehold agreements in order to provide necessary land, buildings, equipment and other property for
governmental or proprietary purposes;
WHEREAS, the Council has determined and hereby determines that it is in the best interest
of the Town to finance the acquisition, construction and installation of a new stage in Hideaway Park
(the “Project”);
1
WHEREAS, the Project will be located on certain real property owned in fee title by the Town
(the “Site”); and
WHEREAS, the Council has determined, and now hereby determines, that in order to finance
the Project, it is in the best interest of the Town and its inhabitants that (a) the Town enter into a Site
Lease (the “Site Lease”) with UMB Bank, n.a., as trustee (the “Trustee”) under the Indenture
(hereinafter defined) pursuant to which the Town will lease the Site to the Trustee; (b) the Project will
be constructed on the Site with the net proceeds of the Certificates (hereinafter defined); (c) the Project
will initially be owned by the Trustee; and (d) the Trustee will sublease the Site and lease the Project
to the Town, with an option to purchase, pursuant to the terms of a Lease Purchase Agreement (the
“Lease”) between the Trustee, as lessor, and the Town, as lessee;
WHEREAS, the Site and the buildings and improvements located thereon, including the
Project, will constitute the Leased Property under the Lease, as further defined therein;
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) in consideration for the right of the Town to use the
Leased Property;
WHEREAS, the Town’s obligation under the Lease to pay Base Rentals and Additional
Rentals 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 other indebtedness or multiple fiscal year financial obligation of the
Town within the meaning of any constitutional, charter, statutory limitation or requirement
concerning the creation of indebtedness or multiple fiscal year financial obligation, 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;
WHEREAS, the Trustee will enter into an Indenture of Trust (the “Indenture”) pursuant to
which there is expected to be executed and delivered certain certificates of participation (the
“Certificates”) dated as of their date of delivery that shall evidence proportionate interests in the right
to receive certain Revenues (as defined in the Lease), shall be payable solely from the sources therein
provided and shall not directly or indirectly obligate the Town to make any payments beyond those
appropriated for any fiscal year during which the Lease shall be in effect;
WHEREAS, the net proceeds of the Certificates will finance the acquisition, construction and
installation of the Project and pay the costs of issuance in connection therewith;
WHEREAS, it is expected that the Certificates will be privately placed with (a) an “accredited
investor,” as defined in Rule 501(A)(1),(2),(3) or (7) of Regulation D promulgated under the Securities
Act of 1933, as amended, or (b) a “qualified institutional buyer,” as defined in Rule 144A promulgated
under the Securities Act of 1933, as amended (the “Purchaser”) as hereafter determined by the Town;
WHEREAS, Section 11-57-204 of the Supplemental Public Securities Act, constituting
Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended (the “Supplemental Act”), provides
that a public entity, including the Town, may elect in an act of issuance to apply all or any of the
provisions of the Supplemental Act;
2
WHEREAS, there has been presented to the Council and are on file at the Town offices the
following: (i) the proposed form of the Site Lease; and (ii) the proposed form of the Lease; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have the meanings
set forth in the Lease.
NOW, THEREFORE, BE IT ORDAINED by the Town Council of the Town of Winter
Park, Colorado:
Section 1.
Recitals Incorporated. The foregoing recitals are incorporated herein by
reference and adopted as findings and determinations of the Council.
Section 2.
Ratification and Approval of Prior Actions. All action heretofore taken (not
inconsistent with the provisions of this Ordinance) by the Council or the officers, agents or employees
of the Council or the Town relating to the Site Lease, the Lease, the acquisition, construction,
installation or improvement of the Project, and the sale, execution and delivery of the Certificates is
hereby ratified, approved and confirmed.
Section 3.
Finding of Best Interests. The Council hereby finds and determines, pursuant
to the Constitution, the laws of the State of Colorado and the Charter, that the acquisition,
construction, and installation of the Project, and the financing of the costs thereof, including the costs
of issuance incurred in connection therewith, pursuant to the terms set forth in the Site Lease and the
Lease are necessary, convenient, and in furtherance of the Town’s public purposes and are in the best
interests of the Town and the Council hereby authorizes and approves the same.
Section 4.
Supplemental Act; Parameters. The Council hereby elects to apply all of the
provisions of the Supplemental Act to the Site Lease and the Lease and in connection therewith
delegates to each of the Mayor, the Town Manager or the Finance Director the independent authority
to make any determination delegable pursuant to § 11-57-205(1)(a-i) of the Colorado Revised Statutes,
as amended, in relation to the Site Lease and the Lease, and to execute a sale certificate (the “Sale
Certificate”) setting forth such determinations, including without limitation, the term of the Site Lease,
the rental amount to be paid by the Trustee pursuant to the Site Lease, the term of the Lease, and the
rental amount to be paid by the Town pursuant to the Lease, subject to the following parameters and
restrictions:
a.
the term of the Site Lease shall not extend beyond December 31, 2036;
b.
the aggregate principal amount of the Base Rentals payable by the Town
pursuant to the Lease shall not exceed $4,000,000;
c.
the Lease Term shall not extend beyond December 31, 2031;
d.
the maximum annual repayment cost of the Base Rentals under the Lease shall
not exceed $385,000, and the total repayment cost shall not exceed $5,450,000;
e.
the maximum net effective interest rate on the interest component of the Base
Rentals relating to the Certificates shall not exceed 4.50%; and
3
f.
the purchase price of the Certificates shall not be less than 100% of the
principal amount of the Certificates.
Pursuant to §11-57-205 of the Supplemental Act, the Council hereby delegates to each of the
Mayor, the Town Manager or the Finance Director the independent authority to select the Purchaser,
to sign a contract for the purchase of the Certificates or to accept a binding bid for the Certificates
and to execute any agreement or agreements in connection therewith.
The delegation set forth in this Section 4 shall be effective for one year following the date
hereof.
The Council hereby agrees and acknowledges that the net proceeds of the Certificates will be
used to finance the costs of the Project and to pay other costs of issuance. The Council hereby further
agrees and acknowledges that the Project, together with the Site, will constitute the Leased Property
under the Site Lease and the Lease.
Section 5.
Approval of Documents. The Site Lease and the Lease, in substantially the
forms presented to the Council and on file with the Town, are in all respects approved, authorized
and confirmed, and the Mayor or Mayor Pro Tem of the Town is hereby authorized and directed for
and on behalf of the Town to execute and deliver the Site Lease and the Lease, in substantially the
forms and with substantially the same contents as presented to the Council, provided that such
documents may be completed, corrected or revised as deemed necessary by the parties thereto in order
to carry out the purposes of this Ordinance.
Section 6.
Authorization to Execute Collateral Documents. The Town Clerk is hereby
authorized and directed to attest all signatures and acts of any official of the Town in connection with
the matters authorized by this Ordinance and to place the seal of the Town on any document
authorized and approved by this Ordinance. The Mayor, the Town Clerk, the Town Manager, the
Finance Director and other employees and officials of the Town are hereby authorized and directed
to execute and deliver for and on behalf of the Town any and all additional certificates, documents
and other papers, 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 by this Ordinance. The
approval hereby given to the various documents referred to above includes an approval of such
additional details therein as may be necessary and appropriate for their completion, deletions
therefrom and additions thereto as may be approved by the Town Manager or the Finance Director
prior to the execution of the documents. The execution of any instrument by the appropriate officers
of the Town herein authorized shall be conclusive evidence of the approval by the Town of such
instrument in accordance with the terms hereof.
Section 7.
No General Obligation Debt. No provision of this Ordinance, the Site Lease,
the Lease, the Indenture, or the Certificates shall be construed as creating or constituting a general
obligation or other indebtedness or multiple fiscal year financial obligation of the Town within the
meaning of any constitutional, statutory or Charter provision, nor a mandatory charge or requirement
against the Town in any ensuing fiscal year beyond the then current fiscal year. The Town shall have
no obligation to make any payment 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.
Neither the Lease nor the Certificates shall constitute a mandatory charge or requirement of the Town
4
in any ensuing fiscal year beyond the then current fiscal year or constitute or give rise to a general
obligation or other indebtedness or multiple fiscal year financial obligation of the Town within the
meaning of any constitutional, statutory or Charter debt limitation and shall not constitute a multiple
fiscal year direct or indirect debt or other financial obligation whatsoever. No provision of the Site
Lease, the Lease or the Certificates shall be construed or interpreted as creating an unlawful delegation
of governmental powers nor as a donation by or a lending of the credit of the Town within the
meaning of Sections 1 or 2 of Article XI of the Colorado Constitution. Neither the Lease nor the
Certificates shall directly or indirectly obligate the Town to make any payments beyond those budgeted
and appropriated for the Town’s then current fiscal year.
Section 8.
Reasonableness of Rentals. The Council hereby determines and declares that
the Base Rentals due under the Lease, in the maximum amounts authorized pursuant to Section 4
hereof, constitute the fair rental value of the Leased Property and do not exceed a reasonable amount
so as to place the Town under an economic compulsion to renew the Lease or to exercise its option
to purchase the Trustee’s interest in the Leased Property pursuant to the Lease. The Council hereby
determines and declares that the period during which the Town has an option to purchase the
Trustee’s interest in the Leased Property (i.e., the entire maximum term of the Lease) does not exceed
the useful life of the Leased Property. The Council hereby further determines that the amount of
rental payments to be received by the Town from the Trustee pursuant to the Site Lease is reasonable
consideration for the leasing of the Leased Property to the Trustee for the term of the Site Lease as
provided therein.
Section 9.
No Recourse against Officers and Agents. Pursuant to § 11-57-209 of the
Supplemental Act, if a member of the Council, or any officer or agent of the Town acts in good faith,
no civil recourse shall be available against such member, officer, or agent for payment of the principal,
interest or prior redemption premiums on the Certificates. Such recourse shall not be available either
directly or indirectly through the Council or the Town, or otherwise, whether by virtue of any
constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of the
Certificates and as a part of the consideration of their sale or purchase, any person purchasing or
selling such Certificate specifically waives any such recourse.
Section 10.
Repealer. All bylaws, orders, resolutions and ordinances, or parts thereof,
inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall
not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, heretofore
repealed.
Section 11.
Severability. If any section, subsection, paragraph, clause or other provision
of this Ordinance for any reason is held to be invalid or unenforceable, the invalidity or
unenforceability of such section, subsection, paragraph, clause or other provision shall not affect any
of the remaining provisions of this Ordinance, the intent being that the same are severable.
Section 12.
Charter Controls. Pursuant to Article XX of the State Constitution and the
Charter, all State statutes that might otherwise apply in connection with the provisions of this
Ordinance are hereby superseded to the extent of any inconsistencies or conflicts between the
provisions of this Ordinance and the Sale Certificate authorized hereby and such statutes. Any such
inconsistency or conflict is intended by the Council and shall be deemed made pursuant to the
authority of Article XX of the State Constitution and the Charter.
5
Section 13.
Effective Date, Recording, and Authentication. This Ordinance shall take
effect five (5) days after publication following final passage. This Ordinance shall be numbered and
recorded in the official records of the Town kept for that purpose, and shall be authenticated by the
signatures of the Mayor or Mayor Pro-Tem and the Town Clerk.
INTRODUCED, APPROVED ON FIRST READING AND ORDERED PUBLISHED
IN FULL this 2nd day of August, 2016. A public hearing shall be held at the regular meeting of the
Winter Park Town Council on the 16th day of August, 2016, at ______ a.m./p.m., or as soon thereafter
as possible, at the Winter Park Town Hall.
TOWN OF WINTER PARK
____________________________
ATTEST:
___________________________
READ, ADOPTED, AND ORDERED PUBLISHED on second and final reading by a vote
of ____ to _____ on the 16th day of August, 2016.
TOWN OF WINTER PARK
____________________________
ATTEST:
___________________________
6
STATE OF COLORADO
COUNTY OF GRAND
TOWN OF WINTER PARK
)
)
) SS.
)
)
I, Taryn Martin, the Town Clerk of the Town of Winter Park, Colorado (the “Town”), do
hereby certify:
(1)
The foregoing pages are a true, correct and complete copy of an ordinance (the
“Ordinance”) that was introduced, approved on first reading and ordered published in accordance
with the Town Charter (the “Charter”) by the Town Council at a regular meeting thereof held on
August 2, 2016, and was introduced, approved on second and final reading without amendment, and
ordered published by title in accordance with the Charter, on August 16, 2016, which Ordinance has
not been revoked, rescinded or repealed and is in full force and effect on the date hereof.
(2)
The Ordinance was duly moved and seconded, and the Ordinance was approved on
first reading, at the meeting of August 2, 2016, by an affirmative vote of a majority of the membership
of the entire Town Council as follows:
Councilmember
Barbara Atwater
Chuck Banks
Nick Kutrumbos
Jim Myers
Mike Periolat
Chris Seemann
Voting “Yes”
Voting “No”
Absent
Abstaining
(3)
The Ordinance was duly moved and seconded, and the Ordinance was
approved on second and final reading, without amendment, at the meeting of August 16, 2016, by an
affirmative vote of a majority of the membership of the entire Town Council as follows:
Councilmember
Barbara Atwater
Chuck Banks
Nick Kutrumbos
Jim Myers
Mike Periolat
Chris Seemann
Voting “Yes”
Voting “No”
Absent
Abstaining
(4)
The members of the Town Council were present at such meetings and voted on the
passage of such Ordinance as set forth above.
1
(5)
The Ordinance was authenticated by the signature of the Mayor, sealed with the Town
seal, attested by the Town Clerk, and recorded in the official records of the Town as required by the
Charter.
(6)
Notices of the meetings of August 2, 2016, and August 16, 2016, in the forms attached
hereto as Exhibit A were posted at the Town Hall not less than 24 hours prior to each meeting in
accordance with law.
(7)
On ________, 2016, and ________, 2016, the Ordinance was published in the
_____________, a newspaper of general circulation in the Town, in accordance with the Charter.
Affidavits of publication are attached hereto as Exhibit B.
WITNESS my hand the _____ day of __________,2016.
_______________________________________
2
EXHIBIT A
(Attach Notices of Meetings of August 2, 2016 and August 16, 2016)
A-1
EXHIBIT B
(Affidavits of Publication)
B-1

Aug 2, 2016 - Winter Park

Transcription

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