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HomeMy WebLinkAboutR21-046 Eagle Valley Trail DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521 F9
Commissioner McQueeney moved adoption of the following Resolution:
EAGLE COUNTY, COLORADO
RESOLUTION NO. 2021-046
AUTHORIZING AND APPROVING A SITE AND
IMPROVEMENT LEASE, LEASE PURCHASE AGREEMENT,
CERTIFICATE PURCHASE AGREEMENT, CONTINUING
DISCLOSURE AGREEMENT, TAX CERTIFICATE, OFFICIAL
STATEMENT, AND RELATED DOCUMENTS AND
TRANSACTIONS IN CONNECTION WITH THE EXECUTION
AND DELIVERY BY UMB BANK, N.A. OF THE
HEREINAFTER DESCRIBED CERTIFICATES OF
PARTICIPATION, SERIES 2021; AUTHORIZING
INCIDENTAL ACTION; RATIFYING ACTION PREVIOUSLY
TAKEN; REPEALING PRIOR INCONSISTENT ACTIONS;
AND PROVIDING FOR OTHER MATTERS RELATING
THERETO.
WHEREAS, the County, pursuant to the constitution and laws of the State of Colorado
(the "State"), is a duly organized and validly existing political subdivision of the State, with the
authority, pursuant to Section 30-11-101(1)(c), Colorado Revised Statutes, as amended
("C.R.S.") to sell, convey, or exchange any real or personal property owned by the County and
make such order respecting the same as may be deemed conducive to the interests of the
inhabitants; and to lease any real or personal property, either as lessor or lessee,together with any
facilities thereon, when deemed by the Board of County Commissioners of the County (the
"Board") to be in the best interests of the County and its inhabitants, and pursuant to Section 30-
11-104.1, C.R.S., it is authorized to enter into lease purchase agreements for the purpose of
financing real property and personal property, including a public trail, used or to be used for
governmental purposes; and
WHEREAS, the County desires to construct and improve approximately 12 miles of
paved public trail for biking and pedestrian uses from Eagle-Vail to Dotsero (the"Trail"),which
Trail, when completed, will connect to the existing Eagle Valley Trail that spans the County from
Vail Pass to Glenwood Canyon, and which will provide recreation opportunities for the County
residents and visitors; and
WHEREAS, the Board has determined and does hereby determine that it is in the best
interest of the County and its inhabitants and in furtherance of the County's governmental
functions and operations to finance a portion of the costs of the acquisition, construction and
improvement of the Trail, including the acquisition of the real property in connection therewith
(the "Project")and that the provision of the recreation opportunities for which the Project will be
used is a valid governmental purpose; and
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WHEREAS, the County intends to own the Project while the hereinafter defined 2021
Certificates are outstanding; and
WHEREAS, the County owns, in fee title, the Site and the building and certain
improvements located thereon in the Town of Eagle, Colorado (collectively, the Site and
improvements thereon are referred to herein as the "Leased Property"), which consist of(a) the
Health and Human Services Building (containing approximately 14,000 square feet) located at
551 Broadway Street, which is used for public health and human service functions, together with
approximately 0.72 acres of land under and adjacent to the Health and Human Services Building
and 30 surface parking spaces serving the Health and Human Services Building; and (b) the
Eagle County Building (containing approximately 27,494 square feet), located at 500 Broadway
Street, used for the Board meetings, various County administration offices, such as the offices for
the County Clerk and Recorder, County Treasurer and Public Trustee, and County Assessor, the
community development, planning, and engineering departments, and all internal service
departments of the County, together with approximately 2.165 acres of land under and adjacent
to the Eagle County Building and 55 surface parking spaces serving the Eagle County Building,
all as more particularly described in Exhibit A to the Lease (as defined herein);and
WHEREAS, the Board has determined, and now hereby determines, that in order to
finance the construction of the Project, it is in the best interest of the County and its inhabitants
that the County lease the Leased Property to UMB Bank, n.a., solely in its capacity as trustee
under the hereinafter defined Indenture (the "Trustee"), pursuant to a Site and Improvement
Lease between the County, as lessor, and the Trustee, as lessee(the"Site Lease"), and lease back
the Trustee's interest in the Leased Property pursuant to the terms of a Lease Purchase
Agreement between the Trustee, as lessor, and the County, as lessee (the"Lease"); and
WHEREAS, pursuant to the Lease, and subject to the right of the County to terminate the
Lease and other limitations as therein provided, the County will pay certain Base Rentals and
Additional Rentals (as such terms are defined in the Lease) in consideration for the right of the
County to use the Leased Property; and
WHEREAS,the County's obligation under the Lease to pay Base Rentals and Additional
Rentals shall be from year to year only; shall constitute currently budgeted and appropriated
expenditures of the County; shall not constitute a mandatory charge or requirement in any
ensuing budget year; shall not constitute an indebtedness of the County within the meaning of
any provision of the Colorado constitution or the laws of the State of Colorado concerning or
limiting the creation of indebtedness by the County; shall not constitute a multiple fiscal year
direct or indirect debt or other financial obligation of the County within the meaning of
Article X, Section 20(4) of the Colorado constitution; and shall not constitute a mandatory
payment obligation of the County in any ensuing fiscal year beyond any fiscal year during which
the Lease shall be in effect; and
WHEREAS, the Lease further provides that the County at its option may renew the
Lease for successive annual terms beyond the initial term according to a schedule set forth in the
•
Lease, or may terminate the Lease in accordance with its terms; and
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WHEREAS, in order to generate moneys to finance the Project and to pay the costs of
execution and delivery of the hereinafter defined 2021 Certificates, the Trustee will enter into an
Indenture of Trust to be dated as of or prior to the date of execution and delivery of the
hereinafter defined 2021 Certificates (the "Indenture"), pursuant to which there are expected to
be executed and delivered the Certificates of Participation, Series 2021 (the "2021 Certificates")
that shall (i) evidence proportionate interests in the right to receive certain payments under the
Lease, (ii) be payable solely from the sources therein provided, and (iii) not directly or indirectly
obligate the County to make any payments beyond those appropriated for any fiscal year during
which the Lease shall be in effect; and
WHEREAS, RBC Capital Markets, LLC (the "Underwriter") has offered to purchase
the 2021 Certificates in a negotiated sale and the Board hereby determines that it is in the best
interest of the County that the 2021 Certificates are sold to the Underwriter and, in connection
therewith, to enter into a Certificate Purchase Agreement with the Trustee and the Underwriter to
be dated prior to the date of the execution and delivery of the 2021 Certificates (the "Certificate
Purchase Agreement"); and
WHEREAS, in order to assist the Underwriter with complying with 17 CFR § 240.15c2-
12 (the "Rule") promulgated by the U.S. Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended, the Board hereby determines that it is in the best
interests of the County to enter into a Continuing Disclosure Agreement with Digital Assurance
Certification, LLC, as dissemination agent, with respect to the 2021 Certificates
(the"Continuing Disclosure Agreement"); and
WHEREAS, there have been presented to the Board the proposed forms of(a) the Site
Lease; (b) the Lease; (c) the Certificate Purchase Agreement; (d) the Continuing Disclosure
Agreement; and (e)the Indenture; and
WHEREAS, there has been presented to the Board a copy of the Preliminary Official
Statement(the"Preliminary Official Statement") relating to the 2021 Certificates; and
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF COUNTY
COMMISSIONERS OF EAGLE COUNTY, COLORADO,AS FOLLOWS:
Section 1. Definitions. Unless the context indicates otherwise, as used herein,
capitalized terms shall have the meanings ascribed by the preambles hereto and the Indenture,the
Lease, or the Site Lease, and the following capitalized terms shall have the respective meanings
set forth below:
"2021 Certificates" means the County's Certificates of Participation, Series 2021, dated
their date of delivery.
"Code"means the Internal Revenue Code of 1986, as amended and in effect as of the date
of execution and delivery of the 2021 Certificates.
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"Continuing Disclosure Agreement" means the Continuing Disclosure Agreement to be
dated as of the date of execution and delivery of the 2021 Certificates, by and between the
County and Digital Assurance Certification, LLC, as dissemination agent.
"County Documents" means, collectively, this Resolution; the Lease; the Site Lease; the
Certificate Purchase Agreement; and the Continuing Disclosure Agreement.
"Official Statement" means the final Official Statement relating to the offer and sale of
the 2021 Certificates.
"Preliminary Official Statement" means the Preliminary Official Statement, relating to
the offer and sale of the 2021 Certificates.
"Project" means a portion of the costs of the acquisition, construction and improvement
of the Trail, including the acquisition of the real property in connection therewith.
"Resolution" means this Resolution which authorizes the execution and delivery of the
2021 Certificates.
"Sale Delegate"means any member of the Board and the County Chief Financial Officer.
"Supplemental Act" means the "Supplemental Public Securities Act," being Title 11,
Article 57, Part 2, C.R.S.
"Tax Certificate" means the Tax Certificate of the County governing issues relating to the
2021 Certificates under the Code.
"Underwriter" means RBC Capital Markets, LLC, Denver, Colorado, the original
purchaser of the 2021 Certificates.
Section 2. Approval of the County Documents and Related Documents. The County
Documents are incorporated herein by reference and are hereby approved. The County shall
enter into and perform its obligations under the County Documents in the form of such
documents presented at or prior to this meeting, with such changes as are made pursuant to this
Section 2 and are not inconsistent herewith. The Chair of the Board (the "Chair") or in his
absence, any of the Commissioners of the Board, and the County Clerk and Recorder of the
County (the "Clerk") or in her absence, any deputies, are hereby authorized and directed to
execute and attest the County Documents and to affix the seal of the County thereto, and the
Chair, the Clerk, and other appropriate officers of the County are further authorized to execute
and authenticate such other documents, instruments, or certificates, including,without limitation,
the Tax Certificate, as are deemed necessary or desirable in order to secure, sell, deliver and
administer the 2021 Certificates, to lease to the Trustee and lease back from the Trustee the
Leased Property, and to accomplish the financing of the Project (to the extent of proceeds
available therefor), including to authorize the payment of net proceeds of the 2021 Certificates
after payment of the Underwriter's discount in accordance with the Certificate Purchase
Agreement, and for costs of related to the execution and delivery of the 2021 Certificates, in
addition to the other uses contemplated by the Indenture. The County Documents and such other
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documents are to be executed in substantially the form presented at or prior to this meeting of the
Board, provided that such documents may be completed, corrected, or revised as deemed
necessary and approved by the officer of the County executing the same in order to carry out the
purposes of this Resolution, subject to the limitations of Section 3 hereof, such approval to be
evidenced by their execution thereof. To the extent any County Document has been executed
prior to the date hereof, said execution is hereby ratified and affirmed. Copies of all of the
County Documents shall be delivered, filed, and recorded as provided therein.
Upon execution of the County Documents, the covenants, agreements, recitals, and
representations of the County therein shall be effective with the same force and effect as if
specifically set forth herein, and such covenants, agreements, recitals, and representations are
hereby adopted and incorporated herein by reference.
The appropriate officers of the County are hereby authorized and directed to prepare and
furnish to any interested person certified copies of all proceedings and records of the County
relating to the 2021 Certificates and such other affidavits and certificates as may be required to
show the facts relating to the authorization and execution and delivery thereof.
The execution of any instrument by the Chair or other appropriate Commissioner in
connection with the sale, delivery or administration of the 2021 Certificates not inconsistent
herewith shall be conclusive evidence of the approval by the County of such instrument in
accordance with the terms thereof and hereof. The County also hereby acknowledges the
execution and delivery of the Indenture and the 2021 Certificates by the Trustee.
Section 3. Delegation and Parameters.
(a) Pursuant to Section 11-57-205, C.R.S., the Board hereby delegates to any
member of the Board and the County Chief Financial Officer the authority to determine
and set forth in the Certificate Purchase Agreement, the Lease, and the Site Lease and to
execute a sale certificate (the "Sale Certificate") setting forth such determinations, as
applicable: (i)the matters set forth in subsection (b) of this Section, subject to the
applicable parameters set forth in subsection (c) of this Section; and (ii) any other matters
that, in the judgment of the Sale Delegate, are necessary or convenient to be set forth in
the Certificate Purchase Agreement, the Lease, and the Site Lease, as applicable, and are
not inconsistent with the Supplemental Act or the parameters set forth in subsection (c)of
this Section. The Board hereby authorizes and directs the Sale Delegate to execute the
Certificate Purchase Agreement, in accordance with such determinations. Upon the
execution of the Certificate Purchase Agreement, the Lease, and the Site Lease, the
matters set forth in the Certificate Purchase Agreement, the Lease, and the Site Lease, as
applicable, shall be incorporated into this Resolution with the same force and effect as if
they had been set forth herein when this Resolution was adopted.
(b) The Certificate Purchase Agreement, the Lease, and the Site Lease, as
applicable, shall set forth the following matters and other matters permitted to be set forth
therein, including any determination delegable pursuant to Section 11-57-205(1)(a-i),
C.R.S., in relation to the Lease and the Site Lease, including without limitation, the term
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of the Site Lease, the Lease Term (as defined in the Lease) and the Base Rentals to be
paid by the County pursuant to the Lease, pursuant to subsection (a) of this Section, but
each such matter must fall within the applicable parameters set forth in subsection (c) of
this Section:
(c) The authority delegated to the Sale Delegate by this Section shall be
subject to the following parameters:
(i) the Site Lease term shall not extend beyond December 31, 2051;
(ii) the aggregate amount of the principal component of the Base
Rentals relating to the 2021 Certificates shall not exceed $22,000,000;
(iii) the Lease Term shall end no later than December 31, 2041;
(iv) the Lease shall be subject to prepayment at the option of the
County no later than December 1, 2032, without prepayment penalty;
(v) the purchase price of the 2021 Certificates shall not be less than
99% of the aggregate amount of the principal component of the Base Rentals
under the Lease;
(vi) the maximum annual (fiscal year) amount of the Base Rentals
(principal and interest components) relating to the 2021 Certificates shall not
exceed$1,750,000; and
(vii) the maximum interest rate on the interest component of the Base
Rentals relating to the 2021 Certificates shall not exceed 5.00%.
Section 4. Permitted Amendments to Resolution. Except as otherwise provided
herein, after the 2021 Certificates are executed and delivered, the County may amend this
Resolution in the same manner, and subject to the same terms and conditions, as apply to an
amendment or supplement to the Lease and Site Lease, as provided in the Lease and the Site
Lease.
Section 5. Appointment of County Representatives. Each of the Chair, the County
Manager, and the County Chief Financial Officer is hereby appointed as a County
Representative, as defined in the Lease. A different County Representative may be appointed by
resolution adopted by the Board and a certificate filed with the Trustee.
Section 6. Tax Covenants. All or any portion of the 2021 Certificate proceeds may be
temporarily invested or reinvested, pending such use, in securities or obligations which are both
lawful investments and which are Permitted Investments (as defined in the Indenture). It is
hereby covenanted and agreed by the County that it will not make, or permit to be made, any use
of the original proceeds of the 2021 Certificates, or of any moneys treated as proceeds of the
2021 Certificates within the meaning of the Code and applicable regulations, rulings, and
decisions, or take, permit to be taken, or fail to take any action, which would adversely affect the
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exclusion from gross income of the interest portion of payments made by the County under the
Lease and received by Owners of the Series 2021 Certificates (the "Certificate Interest
Portion")under Section 103 of the Code and applicable regulations, rulings, and decisions.
Section 7. Official Statement. The Preliminary Official Statement and its use and
distribution by the Underwriter in connection with the sale of the 2021 Certificates is hereby
ratified and approved. The Board hereby confirms that the Preliminary Official Statement has
been deemed final as of its date for purposes of the Rule. The Board hereby authorizes the
preparation and distribution of a supplement to the Preliminary Official Statement if deemed
necessary by the Underwriter in connection with its marketing of the 2021 Certificates. The
Board hereby authorizes the preparation and distribution of a final Official Statement. The
Official Statement shall contain such corrections and additional or updated information so that it
will not contain any untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements made therein, in light of the circumstances under which they
were made, not misleading. The Chair or in his absence, any of the Commissioners of the Board,
is hereby authorized to execute copies of the Official Statement on behalf of the County.
Section 8. Incidental Action. The Chair or in his absence, any of the Commissioners of
the Board, Clerk, County Chief Financial Officer and County Manager are hereby authorized and
directed to execute and deliver such other documents and to take such other action as may be
necessary or appropriate in order to effectuate the delivery of the aforesaid County Documents
and the performance of the County's obligations thereunder; the County's financing of the
Project; the leasing to the Trustee and leasing back from the Trustee the Leased Property; the
execution and delivery by the Trustee of the 2021 Certificates and the Indenture; and the delivery
of the Preliminary Official Statement and the Official Statement.
Section 9. No Debt or Multiple Fiscal Year Obligation of the County. The Base
Rentals, Additional Rentals and any other obligations under the Lease shall constitute
currently budgeted and appropriated expenditures of the County. The County's
obligations under the Lease shall be subject to the County's annual right to renew the
Lease and rights to terminate the Lease as provided therein, and shall not constitute a
mandatory charge, requirement or liability in any ensuing Fiscal Year beyond the then
current Fiscal Year. No provision of the Site Lease, the Lease, the Indenture, or the 2021
Certificates 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 County or a general obligation or other indebtedness of the County
within the meaning of any constitutional or statutory debt limitation, including without
limitation Article X, Section 20 of the Colorado Constitution. The County shall have no
obligation to make any payment with respect to the 2021 Certificates except in connection
with the payment of the Base Rentals and certain other payments under the Lease, which
payments may be terminated by the County in accordance with the provisions of the Lease.
No provision of the Site Lease, the Lease or the 2021 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 County within the meaning of Sections 1 or 2 of Article
XI of the Colorado Constitution. Neither the Lease, the Indenture, nor the 2021
Certificates shall directly or indirectly obligate the County to make any payments beyond
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those specifically included in the County's budget and appropriated for the then current
Fiscal Year. The County shall be under no obligation whatsoever to exercise its option to
purchase the Trustee's leasehold interest in the Leased Property. No provision of the Lease
shall be construed to pledge or to create a lien on any class or source of moneys of the
County, nor shall any provision of the Lease restrict the future issuance of any County
bonds or obligations payable from any class or source of County moneys.
Section 10. Determinations as to Fair Market Value and Fair Market Purchase
Price. The Board hereby determines and declares that the Base Rentals due under the Lease, in
the maximum amounts authorized pursuant to Section 2 hereof, constitute the fair rental value of
the use of the Leased Property and do not exceed a reasonable amount so as to place the County
under an economic compulsion to renew the Lease or to exercise its option to purchase the
Trustee's leasehold interest in the Leased Property pursuant to the Lease. The Board hereby
further determines that the Purchase Option Price for the Leased Property will represent the fair
purchase price of the Trustee's leasehold interest in the Leased Property at the time of the
exercise of the option. The Board declares that the period during which the County has an option
to purchase the Trustee's leasehold interest in the Leased Property (i.e., the maximum Lease
Term) does not exceed the weighted average useful life of the Leased Property.
Section 11. No Recourse Against Officers and Agents. Pursuant to Section 11-57-209,
C.R.S., if a member of the Board, or any officer or agent of the County acts in good faith, no civil
recourse shall be available against such member, officer, or agent for payment of the principal,
interest or prepayment premiums on the 2021 Certificates. Such recourse shall not be available
either directly or indirectly through the Board or the County, or otherwise, whether by virtue of
any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of
the 2021 Certificates and as a part of the consideration of their sale or purchase, any person
purchasing or selling such 2021 Certificate specifically waives any such recourse.
Section 12. Conclusive Recital.The Board hereby elects to apply all of the provisions of
the Supplemental Act to the Lease and the Site Lease; provided, however, that such election shall
not operate to modify or limit the rights conferred on the County, the members of the Board and
the officers of the County by any other provisions of State law. Pursuant to Section 11-57-21,
C.R.S., the 2021 Certificates shall contain a recital that they are executed and delivered pursuant
to the Supplemental Act. Such recital shall be conclusive evidence of the validity and the
regularity of the execution and delivery of the 2021 Certificates after their delivery for value.
Section 13. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with the
authorization or execution and delivery of the 2021 Certificates shall be commenced more than
30 days after the authorization of such securities.
Section 14. Ratification and Approval of Prior Actions. All actions heretofore taken
by the consultants to or officers of the County and the members of the Board, not inconsistent
with the provisions of this Resolution, relating to the authorization, sale, delivery and
administration of the 2021 Certificates, the financing of the Project, the leasing to the Trustee
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and leasing back from the Trustee the Leased Property, or the execution of any documents in
connection with the 2021 Certificates, are hereby ratified, approved, and confirmed.
Section 15. Resolution Irrepealable. This Resolution is, and shall constitute, a
legislative measure of the County and shall be and remain irrepealable during the term of the
Lease as it may be renewed at the option of the County as provided therein.
Section 16. Repealer. All orders, bylaws, arncl resolutions of the County, or parts
thereof, inconsistent or in conflict with this Resolution, are hereby repealed to the extent only of
such inconsistency or conflict.
Section 17. Severability. If any section, paragraph, clause, or provision of this
Resolution shall for any reason be held to be invalid or unenforceable, the invalidity or
unenforceability of such section, paragraph, clause, or provision shall not affect any of the
remaining provisions of this Resolution,the intent being that the same are severable.
Section 18. Effective Date. This Resolution shall take effect immediately upon its
adoption and approval.
Section 19. Electronic Execution. In the event the Chair, any of the Commissioners of
the Board, the Clerk, the County Chief Financial Officer, the County Manager or other
appropriate officer of the County that is authorized or directed to execute any agreement,
document, certificate, instrument or other paper in accordance with this Resolution (collectively,
the "Authorized Documents") is not able to be physically present to manually sign any such
Authorized Document, such individual or individuals are hereby authorized to execute the
Authorized Documents electronically via facsimile or email signature. Any electronic signature
so affixed to any Authorized Document shall carry the full legal force and effect of any original,
handwritten signature. This provision is made pursuant to Article 71.3 of Title 24, C.R.S., also
known as the Uniform Electronic Transactions Act.
[End of Resolution]
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MOVED, READ AND ADOPTED, by the Board of County Commissioners of the County of
Eagle, State of Colorado, at its regular meeting held the 20th day of July, 2021.
o�EpGteeO% OUNTY OF EAGLE, STATE OF COLORADO
I and Through its BOARD OF COUNTY
MMISSIONERS
ept of
Q �,DocuuSigned by:
ATTEST: • y
�DocuSigned/Q by:
�y�y a SME782L1Z18EB473.air
JDlocuSii+g(nled bly::il
Clerk to the Board o1l Fe�n' %Y ° C " "" `C-?‘41-e-''
Commissioners Je izA,MuQueetley, Commissioner
Absent
Kathy Chandler-Henry,Commissioner
Commissioner Scherr seconded adoption of the foregoing Resolution. The roll having
been called,the vote was as follows:
Aye
Commissioner McQueeney
Commissioner Scherr Aye
Commissioner Chandler-Henry Absent
This Resolution passed by 2/0 vote of the Board of County Commissioners of the County of
Eagle, State of Colorado.
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CERTIFICATE PURCHASE AGREEMENT
CERTIFICATES OF PARTICIPATION, SERIES 2021
Evidencing Proportionate Interests in the Base Rentals and other Revenues under an Annually
Renewable Lease Purchase Agreement between UMB BANK,N.A.,solely in its capacity as
trustee under the Indenture,as lessor,and EAGLE COUNTY,COLORADO,as lessee
,2021
Eagle County,Colorado
P.O. Box 850
500 Broadway
Eagle,Colorado 81631-0850
UMB Bank,n.a.
1670 Broadway
Denver,Colorado 80202
s ladies and,Gentlemen:
i
On the basis of the representations, warranties, covenants and descriptions contained in this
Ceitificate Purchase Agreement and the appendices hereto (this "Agreement"), and upon the terms and
conditions contained in this Agreement,RBC Capital Markets,LLC(the"Underwriter"),acting on its own
behalf and not acting as fiduciary or agent for you,the hereinafter defined Trustee,or the hereinafter defined
County, hereby agrees to purchase $ aggregate principal amount of Certificates of
Participation, Series 2021 (the "Certificates"), evidencing proportionate interests in the base rentals and
other revenues under a Lease Purchase Agreement, dated as of , 2021 (the"Lease"),between
UMB Bank,n.a.,solely in its capacity as trustee(the"Trustee"),as lessor,and Eagle County,Colorado,as
lessee(the"County"). The Certificates are to be executed and delivered under and pursuant to an Indenture
of Trust,dated as of ,2021 (the"Indenture"),executed and delivered by the Trustee.
Proceeds from the sale of the Certificates will be used to finance a portion of the costs of
constructing, improving and equipping of approximately 12 miles of the public Eagle Valley Trail,
including the acquisition of the real property in connection therewith. In addition,a portion of proceeds of
the Certificates will be used to pay the costs of executing and delivering the Certificates.
The Certificates will be executed and delivered under and secured as provided in the Indenture,and
will be subject to redemption and will contain other terms as set forth in the Indenture and the hereinafter
defined Official Statement. The Certificates will have the maturities, interest rates, optional redemption,
[mandatory sinking fund redemption,] and extraordinary mandatory redemption provisions as set forth in
Appendix A to this Agreement.
All capitalized terms used but not defined herein shall have the meanings defined in the Lease and
the Indenture,unless the context clearly indicates otherwise.
Section 1. Purchase and Sale of the Certificates. Subject to the terms and conditions and
in reliance upon the representations, warranties and agreements set forth herein, the Underwriter hereby
agrees to purchase from the Trustee, and the Trustee hereby agrees to sell and deliver to the Underwriter,
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STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
I, Regina O'Brien, County Clerk and Recorder of Eagle County, Colorado, do
hereby certify that the attached copy of Resolution No. 2021-oyt,, is a true and correct copy; that
said Resolution was passed by the Board of County Commissioners of Eagle County, Colorado,
at its regular meeting held at 500 Broadway, Eagle County, Colorado, the regular meeting place
thereof, on Tuesday, the 20th day of July, 2021; that a true copy of said Resolution has been
authenticated by the signatures of the Chair of the Board of County Commissioners of Eagle
County and myself as County Clerk and Recorder thereof, sealed with the seal of the County, and
numbered and recorded in a book kept for that purpose in my office; that the foregoing pages
constitute a true and correct copy of the record of the proceedings of said Board at its aforesaid
meeting, insofar as said proceedings relate to said Resolution; that said proceedings were duly
had and taken, that the meeting was duly held; and that the persons were present at said meeting
as therein shown.
IN WITNESS WHEREOF, I have hereunto set my hand and the seal
County, Colorado this 20th day of July, 2021. y ° �o4,1
CO(OR AO°
(SEAL)
ounty Clerk and Recorder
Eagle County, Colorado
DMWEST#41661574 v2
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•
all, but not less than all, of the Certificates. Inasmuch as this purchase and sale represents a negotiated
transaction,the County acknowledges that: (i)the transaction contemplated by this Agreement is an arm's
length,commercial transaction between the County and the Underwriter in which the Underwriter is acting
solely as a principal and is not acting as a municipal advisor, financial advisor or fiduciary to the County;
(ii)the Underwriter has not assumed any advisory or fiduciary responsibility to the County with respect to
the transaction contemplated hereby and the discussions, undertakings and procedures leading thereto
(irrespective of whether the Underwriter has provided other services or is currently providing other services
to the County on other matters); (iii)the Underwriter is acting solely in its capacity as Underwriter for its
own accounts, (iv)the only obligations the Underwriter has to the County with respect to the transaction
contemplated hereby expressly are set forth in this Agreement; and(v)the County has consulted its own
legal, accounting,tax,financial and other advisors, as applicable,to the extent it has deemed appropriate.
The Underwriter has been duly authorized to execute this Agreement and to act hereunder. The Certificates
shall be as described in, and shall be executed and delivered and secured under and pursuant to the
Indenture, under the conditions set forth herein and the proceeds from the sale of the Certificates to the
Underwriter shall be deposited as provided in the Indenture.
The purchase price for the Certificates shall be $ which amount includes the par
amount of the Certificates of $ , [plus][less] [net] original issue [premium][discount] of
$ ,and less an underwriting discount of$
Section 2. Public Offering and Establishment of Issue Price.
(a) The Underwriter agrees to make a bona fide public offering of all of the Certificates
at a price not to exceed the public offering price set forth on the cover of the Official Statement and
may subsequently change such offering price without any requirement of prior notice. The
Underwriter may offer and sell Certificates to certain dealers (including dealers depositing
Certificates into investment trusts) and others at prices lower than the public offering price stated
on the cover of the Official Statement.
(b) The Underwriter agrees to assist the County in establishing the issue price of the
Certificates and shall execute and deliver to the County at Closing (as defined below) an "issue
price" or similar certificate, together with the supporting pricing wires or equivalent
communications,substantially in the form attached hereto as Appendix D,with such modifications
as may be appropriate or necessary,in the reasonable judgment of the Underwriter,the County and
Special Counsel(as defined below),to accurately reflect, as applicable,the sales price or prices or
the initial offering price or prices to the public of the Certificates.
(c) [Except as otherwise set forth in Appendix A attached hereto,] the County will
treat the first price at which 10% of each maturity of the Certificates (the "10%test"), identified
under the column"10%Test Used" in Appendix A, is sold to the public as the issue price of that
maturity. At or promptly after the execution of this Purchase Contract,the Underwriter shall report
to the County the price or prices at which it has sold to the public each maturity of Certificates. If
at that time the 10%test has not been satisfied as to any maturity of the Certificates,the Underwriter
agrees to promptly report to the County the prices at which it sells the unsold Certificates of that
maturity to the public. That reporting obligation shall continue, whether or not the Closing Date
(as defined below) has occurred, until either (i) the Underwriter has sold all Certificates of that
maturity or(ii)the 10%test has been satisfied as to the Certificates of that maturity,provided that,
the Underwriter's reporting obligation after the Closing Date may be at reasonable periodic
intervals or otherwise upon request of the County or Special Counsel. For purposes of this section,
if Certificates mature on the same date but have different interest rates, each separate CUSIP
number within that maturity will be treated as a separate maturity of the Certificates.
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(d) [The Underwriter confirms that it has offered the Certificates to the public on or
before the date of this Purchase Contract at the offering price or prices(the"initial offering price"),
or at the corresponding yield or yields,set forth in Appendix A attached hereto,except as otherwise
set forth therein. Appendix A also sets forth,identified under the column"Hold the Offering Price
Rule Used,"as of the date of this Purchase Contract,the maturities, if any, of the Certificates for
which the 10%test has not been satisfied and for which the County and the Underwriter agree that
the restrictions set forth in the next sentence shall apply, which will allow the County to treat the
initial offering price to the public of each such maturity as of the sale date as the issue price of that
maturity(the "hold-the-offering-price rule"). So long as the hold-the-offering-price rule remains
applicable to any maturity of the Certificates, the Underwriter will neither offer nor sell unsold
Certificates of that maturity to any person at a price that is higher than the initial offering price to
the public during the period starting on the sale date and ending on the earlier of the following.
(i) the close of the fifth(5th)business day after the sale date;or
(ii) the date on which the Underwriter has sold at least 10% of that maturity
of the Certificates to the public at a price that is no higher than the initial offering price to
the public.
The Underwriter will advise the County promptly after the close of the fifth(5th)business
day after the sale date whether it has sold 10%of that maturity of the Certificates to the public at a
price that is no higher than the initial offering price to the public.]
(e) The Underwriter confirms that:
(i) any selling group agreement and any third-party distribution agreement
relating to the initial sale of the Certificates to the public,together with the related pricing
wires, contains or will contain language obligating each dealer who is a member of the
selling group and each broker-dealer that is a party to such third-party distribution
agreement,as applicable:
(A) (i) to report the prices at which it sells to the public the unsold
Certificates of each maturity allocated to it, whether or not the Closing Date has
occurred,until either all Certificates of that maturity allocated to it have been sold
or it is notified by the Underwriter that the 10%test has been satisfied as to the
Certificates of that maturity, provided that, the reporting obligation after the
Closing Date may be at reasonable periodic intervals or otherwise upon request of
the Underwriter, and (ii) to comply with the hold-the-offering-price rule, if
applicable, if and for so long as directed by the Underwriter,
(B) to promptly notify the Underwriter of any sales of Certificates
that, to its knowledge, are made to a purchaser who is a related party to an
underwriter participating in the initial sale of the Certificates to the public (each
such term being used as defined below),and
(C) to acknowledge that, unless otherwise advised by the dealer or
broker-dealer,the Underwriter shall assume that each order submitted by the dealer
or broker-dealer is a sale to the public.
(ii) any selling group agreement relating to the initial sale of the Certificates
to the public, together with the related pricing wires, contains or will contain language
obligating each dealer that is a party to a third-party distribution agreement to be employed
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in connection with the initial sale of the Certificates to the public to require each broker-
dealer that is a party to such third-party distribution agreement to(A)report the prices at
which it sells to the public the unsold Certificates of each maturity allocated to it,whether
or not the Closing Date has occurred, until either all Certificates of that maturity allocated
to it have been sold or it is notified by the Underwriter or the dealer that the 10%test has
been satisfied as to the Certificates of that maturity,provided that,the reporting obligation
after the Closing Date may be at reasonable periodic intervals or otherwise upon request of
the Underwriter or the dealer, and (B) comply with the hold-the-offering-price rule, if
applicable, if and for so long as directed by the Underwriter or the dealer and as set forth
in the related pricing wires.
(f) The County acknowledges that, in making the representations set forth in this
section,the Underwriter will rely on(i)in the event a selling group has been created in connection
with the initial sale of the Certificates to the public,the agreement of each dealer who is a member
of the selling group to comply with the requirements for establishing issue price of the Certificates,
including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if
applicable to the Certificates,as set forth in a selling group agreement and the related pricing wires,
and(ii)in the event that a third-party distribution agreement was employed in connection with the
initial sale of the Certificates to the public, the agreement of each broker-dealer that is a party to
such agreement to comply with the requirements for establishing issue price of the Certificates,
including, but not limited to, its agreement to comply with the hold-the-offering-price rule, if
applicable to the Certificates, as set forth in the third-party distribution agreement and the related
pricing wires. The County further acknowledges that the Underwriter shall not be liable for the
failure of any dealer who is a member of a selling group, or of any broker-dealer that is a party to
a third-party distribution agreement,to comply with its corresponding agreement to comply with
the requirements for establishing issue price of the Certificates, including, but not limited to, its
agreement to comply with the hold-the-offering-price rule,if applicable to the Certificates.
(g) The Underwriter acknowledges that sales of any Certificates to any person that is
a related party to an underwriter participating in the initial sale of the Certificates to the public
(each such term being used as defined below) shall not constitute sales to the public for purposes
of this section. Further,for purposes of this section:
(i) "public"means any person other than an underwriter or a related party;
(ii) "underwriter" means (A) any person that agrees pursuant to a written
contract with the County(or with the lead underwriter to form an underwriting syndicate)
to participate in the initial sale of the Certificates to the public and (B) any person that
agrees pursuant to a written contract directly or indirectly with a person described in clause
(A)to participate in the initial sale of the Certificates to the public(including a member of
a selling group or a party to a third-party distribution agreement participating in the initial
sale of the Certificates to the public);
(iii) a purchaser of any of the Certificates is a"related party"to an underwriter
if the underwriter and the purchaser are subject,directly or indirectly,to(i)more than 50%
common ownership of the voting power or the total value of their stock,if both entities are
corporations (including direct ownership by one corporation of another), (ii) more than
50% common ownership of their capital interests or profits interests, if both entities are
partnerships(including direct ownership by one partnership of another),or(iii)more than
50% common ownership of the value of the outstanding stock of the corporation or the
capital interests or profit interests of the partnership, as applicable, if one entity is a
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corporation and the other entity is a partnership (including direct ownership of the
applicable stock or interests by one entity of the other)[;and
(iv) "sale date" means the date of execution of this Purchase Contract by the
County and the Underwriter].
Section 3. The Official Statement.
(a) Attached hereto as Appendix B a copy of the Preliminary Official Statement dated
, 2021 (the "Preliminary Official Statement"), including the cover page and
Appendices thereto, relating to the Certificates. Such copy of the Preliminary Official Statement,
as amended to reflect the changes marked or otherwise indicated on Appendix B hereto, is
hereinafter called the"Official Statement."
(b) The Preliminary Official Statement has been prepared for use by the Underwriter
in connection with the public offering, sale and distribution of the Certificates. The Preliminary
Official Statement has been deemed final by the County as of its date,except for the omission of
such information which is dependent upon the final pricing of the Certificates for completion, all
as permitted to be excluded by Section(b)(1)of Rule 15c2-12 under the Securities Exchange Act
of 1934,as amended(the"Rule").
(c) The County hereby authorizes the Official Statement and the information therein
contained to be used by the Underwriter in connection with the public offering and the sale of the
Certificates. The County has consented to the use by the Underwriter prior to the date hereof of
the Preliminary Official Statement in connection with the public offering of the Certificates. The
County shall provide, or cause to be provided, to the Underwriter as soon as practicable after the
date of the County's acknowledgment of this Agreement(but, in any event, not later than within
seven business days after the date of the County's acknowledgment of this Agreement and in
sufficient time to accompany any confirmation that requests payment from any customer) copies
of the Official Statement which is complete as of the date of its delivery to the Underwriter in such
quantity as the Underwriter shall request in order for the Underwriter to comply with Section(b)(4)
of the Rule and the rules of the Municipal Securities Rulemaking Board.
(d) If,after the date of this Agreement to and including the date the Underwriter is no
longer required to provide an Official Statement to potential customers who request the same
pursuant to the Rule(25 days from the"end of the underwriting period"(which shall be the date of
the Closing unless the Underwriter shall in writing advise the County prior to such date that it has
unsold Certificates in its inventory, in which case the end of the underwriting period shall be the
date on which the Underwriter no longer has unsold Certificates in its inventory)), the County
becomes aware of any fact or event which might or would cause the Official Statement, as then
supplemented or amended, to contain any untrue statement of a material fact or to omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading,or if it is necessary to amend or supplement the Official Statement to comply with law,
the County will notify the Underwriter(and for the purposes of this clause provide the Underwriter
with such information as it may from time to time request),and if,in the opinion of the Underwriter,
such fact or event requires preparation and publication of a supplement or amendment to the
Official Statement,the County will forthwith prepare and furnish,at the County's own expense(in
a form and manner approved by the Underwriter), a reasonable number of copies of either
amendments or supplements to the Official Statement so that the statements in the Official
Statement as so amended and supplemented will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading or so that the Official Statement will comply with law. If such notification
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shall be subsequent to the Closing, the County shall furnish such legal opinions, certificates,
instruments and other documents as the Underwriter may deem necessary to evidence the truth and
accuracy of such supplement or amendment to the Official Statement.
(e) The Underwriter hereby agrees to file the Official Statement with the Municipal
Securities Rulemaking Board. Unless otherwise notified in writing by the Underwriter,the County
can assume that the "end of the underwriting period" for purposes of the Rule is the date of the
Closing.
Section 4. Representations, Warranties and Agreements of the Trustee. By its
acceptance hereof,the Trustee hereby represents,and warrants to,and agrees with,the Underwriter and the
County that:
(a) The Trustee is a national banking association that is duly organized, existing and
in good standing under the laws of the United States of America,is qualified to do business in the
State of Colorado and is authorized to exercise all of its corporate powers, rights and privileges,
and has all necessary power to acquire a leasehold interest in the Leased Property and enter into
the Lease, this Agreement, the Indenture and the Site and Improvement Lease, dated as of
, 2021, (the "Site Lease"), between the County, as lessor, and the Trustee, as lessee.
The Trustee is possessed of full power to lease,own and hold real property and to lease and sublease
the same as lessee from and sublessor to the County, and has duly authorized and approved the
execution and delivery of the Site Lease,the Lease,this Agreement and the Indenture. The Trustee
has duly authorized or will duly authorize,prior to the Closing,as hereinafter defined,the execution
and delivery by the Trustee of the Indenture,the Site Lease,the Lease and this Agreement.
(b) The Trustee has taken or will have taken, prior to the Closing, as hereinafter
defined,all necessary action for the execution and delivery and due performance by the Trustee of
this Agreement, the Site Lease, the Lease and the Indenture, and the Trustee agrees to deliver
executed counterparts of this Agreement, the Indenture, the Site Lease and the Lease to the
Underwriter at the Closing,as hereinafter defined.
(c) There is no action, suit, proceeding or, to the best knowledge of the Trustee any
inquiry or investigation,at law or in equity or before or by any court,public board or body,pending
or,to the best knowledge of the Trustee,threatened against or affecting the Trustee(or to the best
knowledge of the Trustee, any basis therefor), wherein an unfavorable decision,ruling or finding
would adversely affect the transactions contemplated hereby or by the Lease,the Site Lease, this
Agreement or the Indenture, or the validity of the Lease, this Agreement, the Indenture, the Site
Lease or any other agreement or instrument to which the Trustee is a party and which is used in the
consummation of the transactions contemplated hereby or by the Site Lease, the Lease or the
Indenture.
(d) The execution and delivery of this Agreement, the Indenture, the Lease, the Site
Lease and the other agreements contemplated hereby, and compliance with the provisions thereof
and hereof,do not conflict with or constitute on the part of the Trustee a default of or breach under
any existing law, court or administrative regulation, decree or order or any agreement, indenture,
mortgage,lease or other instrument to which the Trustee is subject or by which the Trustee is bound.
(e) The Trustee will cooperate with the County and Special Counsel, as hereinafter
defined, in the preparation of the Site Lease, the Lease and the Indenture, and the execution and
delivery of the Certificates.
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(f) Any certificate signed by any of the authorized officers of the Trustee and
delivered to the Underwriter shall be deemed a representation and warranty by the Trustee to the
Underwriter as to the statements made therein.
(g) The representations and warranties of the Trustee contained herein shall be true,
complete and correct on the date hereof and on and as of the date of the Closing as if made on the
date of Closing.
Section 5. Representations and Warranties of the County. On or prior to the date hereof,
the Underwriter and the Trustee received representations and warranties from the County in substantially
the form provided in Appendix C of this Agreement.
Section 6. Closing. Payment of the purchase price of the Certificates shall be made by wire
funds transfer, in immediately available funds,at the offices of Ballard Spahr LLP("Special Counsel"), at
9:00 a.m.,Denver Time,on ,2021,or such other place,time or date as shall be mutually agreed
upon by the County, the Trustee and the Underwriter. The date of such delivery and payment is herein
called the "Closing Date," and the hour and date of such delivery and payment is herein called the
"Closing." The delivery of the Certificates shall be made in definitive or temporary form,bearing CUSIP
numbers(provided that neither the printing of a wrong CUSIP number on any Certificate nor the failure to
print a CUSIP number thereon shall constitute cause to refuse delivery of any Certificate), all as provided
in the Indenture at Closing.
Section 7. Closing Conditions. The Underwriter has entered into this Agreement in reliance
upon the representations, warranties and agreements of the Trustee and the County contained herein, and
in reliance upon the representations, warranties and agreements to be contained in the documents and
instruments to be delivered at the Closing and upon the performance by the County and the Trustee of their
respective obligations hereunder,both as of the date hereof and as of the date of the Closing. Accordingly,
the Underwriter's obligation under this Agreement to purchase, to accept delivery of and to pay for the
Certificates shall be conditioned upon the performance by the County and the Trustee of their respective
obligations to be performed hereunder and under such documents and instruments at or prior to the Closing,
and shall also be subject to the following additional conditions, including the delivery by the County and
the Trustee of such documents as are enumerated herein, in form and substance reasonably satisfactory to
the Underwriter:
(a) The representations and warranties of the County contained in Appendix C shall
be true,complete and correct on the date hereof and on and as of the date of the Closing,as if made
on the date of the Closing;
(b) The County shall have performed and complied with all agreements and conditions
required by this Agreement to be performed or complied with by it prior to or at the Closing;
(c) At the time of the Closing, (i) the Site Lease, the Lease, this Agreement, the
Official Statement, and the Continuing Disclosure Agreement relating to the Certificates (the
"Disclosure Agreement"),(collectively,the"County Documents")and the Certificates shall be in
full force and effect in the form heretofore approved by the Underwriter and shall not have been
amended,modified or supplemented,and the Official Statement shall not have been supplemented
or amended, except in any such case as may have been agreed to by the Underwriter; and(ii)all
actions of the County and the Trustee required to be taken by the County and the Trustee shall be
performed in order for Special Counsel and other counsel to deliver their respective opinions
referred to hereafter;
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(d) At or prior to the Closing, the Lease and the Site Lease shall have been duly
executed and delivered by the County and the Trustee, and the Trustee shall have duly executed
and delivered the Certificates;
(e) At the time of the Closing, there shall not have occurred any change or any
development involving a prospective change in the condition, financial or otherwise, or in the
revenues or operations of the County, from that set forth in the Official Statement that in the
judgment of the Underwriter, is material and adverse and that makes it, in the judgment of the
Underwriter,impracticable to market the Certificates on the terms and in the manner contemplated
in the Official Statement;
(f) The County shall not have failed to pay principal or interest when due on any of
its outstanding obligations for borrowed money;
(g) All steps to be taken and all instruments and other documents to be executed, and
all other legal matters in connection with the transactions contemplated by this Agreement shall be
reasonably satisfactory in legal form and effect to the Underwriter;
(h) At or prior to the Closing, the Underwriter shall have received copies of each of
the following:
(i) The Official Statement, and each supplement or amendment thereto, if
any,executed on behalf of the County by the Chair of the Board of County Commissioners
of the County, or such other official as may have been agreed to by the Underwriter, and
the reports and audits referred to or appearing in the Official Statement;
(ii) The Indenture with such supplements as may have been agreed to by the
Underwriter;
(iii) The Disclosure Agreement satisfying requirements of section(b)(5)(i) of
the Rule;
(iv) The approving opinion of Special Counsel (the "Approving Opinion"),
addressed to the County in substantially the form attached the Official Statement as
Appendix E;
(v) A reliance letter addressed to the Underwriter to the effect that the
Underwriter may rely on the Approving Opinion to the same extent as if such opinion were
addressed to it;
(vi) A supplemental opinion of Special Counsel in the form and substance
satisfactory to the Underwriter, addressed to the Underwriter, to the effect that under
existing law,so long as the County's obligations under the Lease have not been terminated,
the Certificates are not subject to the registration requirements of the Securities Act of
1933,as amended,and so long as the County's obligations under the Lease have not been
terminated, the Indenture is not required to be qualified under the Trust Indenture Act of
1939,as amended;
(vii) A letter from Special Counsel, in form and substance satisfactory to the
Underwriter, with a reliance letter addressed to the Underwriter, dated as of the date of
Closing and addressed to the County, stating, in substance, that nothing came to the
attention of the attorneys at Ballard Spahr LLP rendering legal services in connection with
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such firm's representation of the County that the Preliminary Official Statement, as of its
date and the date hereof,and the Official Statement,as of its date and the date of Closing,
(except for any financial statements, demographic, economic, engineering, financial,
technical or statistical data; any information concerning The Depository Trust Company
provided by The Depository Trust Company contained in the Preliminary Official
Statement or Official Statement, as applicable; any statements of expectations of the
County or others; any maps; any statement of trends, forecasts, estimates, projections,
assumptions, or any expressions of opinion, including without limitation any appendices
to the Preliminary Official Statement or the Official Statement, as applicable; any
information in the italicized first paragraph on the cover page of the Preliminary Official
Statement or the Official Statement,as applicable,or under the sections of the Preliminary
Official Statement or the Official Statement, as applicable, entitled"INTRODUCTION—
Tax Status," "TAX MATTERS," "MISCELLANEOUS — Independent Auditor" and
"MISCELLANEOUS — Underwriting"; and the omission from the Preliminary Official
Statement of such information as is permitted pursuant to Rule 15c2-12 of the Securities
Exchange Act of 1934,as amended,as to which no view is expressed)contained or contains
any untrue statement of a material fact or omitted or omits to state any material fact
necessary in order to make the statements made in the Preliminary Official Statement and
the Official Statement, as applicable, in light of the circumstances under which they were
made,not misleading;
(viii) A certificate of the County signed by duly authorized officials of the
County relating to (A) the representations of the County contained herein are true and
correct in all material respects and as of the date of Closing as if made on the date of
Closing;(B)the due organization of the County,(C)the absence of any material litigation
against the County, (D)the due approval of the County Resolution and due authorization,
execution, and delivery of the Site Lease, the Lease, this Agreement and the Disclosure
Agreement by the County,and(E)all approvals,consents and orders of any governmental
entity,authority,board,agency or commission having jurisdiction which would constitute
conditions precedent to the performance of the County of its obligations under this
Agreement, the Site Lease, the Lease and the Disclosure Agreement and which can be
reasonably obtained at the Closing have been obtained;together with a certificate executed
by one or more officers of the County, to the effect that the Official Statement, as then
amended or supplemented, to the best of their knowledge, neither contains an untrue
statement of any material fact nor omits to state any material fact necessary to make the
statements made in the Official Statement, in light of the circumstances in which they are
made,not misleading;
(ix) A certificate of the Trustee,dated the date of the Closing and executed by
an authorized officer of the Trustee,certifying that all of the representations and warranties
of the Trustee herein and in the Indenture, Lease, and Site Lease are true and accurate on
and as of the Closing;
(x) Evidence of the title insurance commitment required by Section 2.04(a)of
the Indenture and Section 7.03 of Lease;
(xi) Evidence of the insurance required by Section 8.05 of the Lease;
(xii) Evidence satisfactory to the Underwriter that the Certificates have been
rated" "by and that such rating is in effect as of the date of Closing; and
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(xiii) Such additional legal opinions, certificates, instruments and other
documents as the Underwriter may reasonably request to evidence the truth and accuracy,
as of the date hereof and as of the date of the Closing,of the County's representations and
warranties contained in Appendix C and of the statements and information contained in the
Official Statement and the due performance or satisfaction by the County on or prior to the
date of the Closing of all the respective agreements then to be performed and conditions
then to be satisfied by the County.
All of the opinions,letters,certificates,instruments and other documents mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof if,
but only if,they are in form and substance satisfactory to the Underwriter.
If the County and the Trustee shall be unable to satisfy the conditions to the obligations of
the Underwriter to purchase,to accept delivery of and to pay for the Certificates contained in this
Agreement, or if the obligations of the Underwriter to purchase, to accept delivery of and to pay
for the Certificates shall be terminated for any reason permitted by this Agreement,this Agreement
shall terminate and none of the Underwriter,the County, or the Trustee shall be under any further
obligation hereunder,except that the obligations of the County set forth in Sections 5 and 11 hereof
and in Appendix C shall continue in full force and effect.
Section 8. Termination. The Underwriter shall have the right to cancel its obligation to
purchase the Certificates if,between the date hereof and the Closing,the market price or marketability of
the Certificates shall be materially adversely affected, in the reasonable judgment of the Underwriter, by
any of the following:
(a) legislation shall be enacted by or introduced in the Congress of the United States
or recommended to the Congress for passage by the President of the United States,or the Treasury
Department of the United States or the Internal Revenue Service or any member of the Congress
or favorably reported for passage to either House of the Congress by any committee of such House
to which such legislation has been referred for consideration, a decision by a court of the United
States or of the State or the United States Tax Court shall be rendered,or an order,ruling,regulation
(final,temporary or proposed),press release, statement or other form of notice by or on behalf of
the Treasury Department of the United States,the Internal Revenue Service or other governmental
agency shall be made or proposed,the effect of any or all of which would be to impose,directly or
indirectly, federal income taxation or State income taxation upon interest received on obligations
of the general character of the Certificates or, with respect to State taxation, of the interest on the
Certificates as described in the Official Statement, or other action or events shall have transpired
which may have the purpose or effect, directly or indirectly, of changing the federal income tax
consequences or State income tax consequences of any of the transactions contemplated herein;
(b) legislation introduced in or enacted (or resolution passed) by the Congress or an
order, decree, or injunction issued by any court of competent jurisdiction, or an order, ruling,
regulation(final,temporary,or proposed),press release or other form of notice issued or made by
or on behalf of the Securities and Exchange Commission,or any other governmental agency having
jurisdiction of the subject matter, to the effect that obligations of the general character of the
Certificates, including any or all underlying arrangements,are not exempt from registration under
or other requirements of the 1933 Act,or that the Indenture is not exempt from qualification under
or other requirements of the Trust Indenture Act,or that the issuance,offering,or sale of obligations
of the general character of the Certificates, including any or all underlying arrangements, as
contemplated hereby or by the Official Statement or otherwise, is or would be in violation of the
federal securities law as amended and then in effect;
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(c) any state blue sky or securities commission or other governmental agency or body
shall have withheld registration, exemption or clearance of the offering of the Certificates as
described herein,or issued a stop order or similar ruling relating thereto;
(d) a general suspension of trading in securities on the New York Stock Exchange or
the American Stock Exchange,the establishment of minimum prices on either such exchange,the
establishment of material restrictions (not in force as of the date hereof) upon trading securities
generally by any governmental authority or any national securities exchange, a general banking
moratorium declared by federal, State of New York,or State officials authorized to do so;
(e) the New York Stock Exchange or other national securities exchange or any
governmental authority, shall impose, as to the Certificates or as to obligations of the general
character of the Certificates,any material restrictions not now in force,or increase materially those
now in force,with respect to the extension of credit by,or the charge to the net capital requirements
of,the Underwriter;
(f) any amendment to the federal or state Constitution or action by any federal or state
court, legislative body, regulatory body, or other authority materially adversely affecting the tax
status of the County, its property, income securities (or interest thereon), or the validity or
enforceability of the levy of taxes to pay the principal of and interest on the Certificates;
(g) any event occurring, or information becoming known which, in the judgment of
the Underwriter, makes untrue in any material respect any statement or information contained in
the Official Statement, or has the effect that the Official Statement contains any untrue statement
of material fact or omits to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were made, not
misleading;
(h) there shall have occurred since the date of this Agreement any materially adverse
change in the affairs or financial condition of the County, except for changes which the Official
Statement discloses are expected to occur;
(i) the United States shall have become engaged in hostilities which have resulted in
a declaration of war or a national emergency or there shall have occurred any other outbreak or
escalation of hostilities or a national or international calamity or crisis,financial or otherwise;
(j) any fact or event shall exist or have existed that, in the Underwriter's judgment,
requires or has required an amendment of or supplement to the Official Statement;
(k) there shall have occurred or any notice shall have been given of any intended
review, downgrading, suspension, withdrawal, or negative change in credit watch status by any
national rating service to any of the County's obligations;
(1) the purchase of and payment for the Certificates by the Underwriter, or the resale
of the Certificates by the Underwriter, on the terms and conditions herein provided shall be
prohibited by any applicable law,governmental authority,board,agency or commission;and
(m) any legislation, ordinance,rule or regulation shall be introduced in or be enacted
by any governmental body, department or agency in the State or a decision by any court of
competent jurisdiction within the State shall be rendered which, in the Underwriter's reasonable
opinion,materially adversely affects the market price of the Certificates.
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Section 9. Expenses. All expenses incident to the execution and delivery of the Certificates
shall be paid from proceeds of the Certificates. Such expenses shall include,but shall not be limited to(a)
the cost of preparing, printing or otherwise reproducing and distributing the Certificates, the County
Documents, the Preliminary Official Statement and the Official Statement with any amendment or
supplement thereto; (b) the cost of preparing and executing the definitive Certificates; (c) the fees and
expenses of Special Counsel, general counsel to the County, independent auditors and any other experts
and consultants retained in connection with the execution and delivery of the Certificates; (d) the initial
fees and expenses of the Trustee; (e) fees charged by investment rating agencies for the rating of the
Certificates,and all other expenses incurred by the Underwriter in connection with their purchase,offering
and distribution of the Certificates;and(f)fees of obtaining insurance for the payment of the principal and
interest due with respect to the Certificates,if any. All out-of-pocket expenses of the Underwriter,including
travel and other expenses, shall be paid by the Underwriter.
Section 10. Notices. Any notice or other communication to be given to the County under this
Agreement may be given by delivering the same in writing to Eagle County,Colorado,P.O.Box 850, 500
Broadway, Eagle, Colorado 81631-0850, Attention: Chief Financial Officer, any notice or other
communication to be given to the Trustee under this Agreement may be given delivering the same in writing
to UMB Bank, n.a., 1670 Broadway, Denver, Colorado 80202, Attention: Corporate Trust and Escrow
Services and any notice or other communication to be given to the Underwriter under this Agreement may
be given by delivering the same in writing to RBC Capital Markets, LLC, 1801 California Street, Suite
3850 Denver,Colorado 80202,Attention:Dan O'Connell.
Section 11. Parties in Interest. This Agreement as heretofore specified shall constitute the
entire agreement between us and is made solely for the benefit of the County, the Trustee and the
Underwriter(including successors or assigns of the Underwriter)and no other person shall acquire or have
any right hereunder or by virtue hereof. This Agreement may not be assigned by the Trustee or the County.
All of the County's representations,warranties and agreements contained in Appendix C to this Agreement
shall remain operative and in full force and effect,regardless of(i)any investigations made by or on behalf
of the Underwriter; (ii) delivery of and payment for the Certificates pursuant to this Agreement; and (iii)
any termination of this Agreement.
Section 12. Effectiveness. This Agreement shall become effective upon the execution hereof
by the Trustee and acknowledgment hereof by the County and shall be valid and enforceable at the time of
such acceptance and acknowledgment.
Section 13. Choice of Law. This Agreement shall be governed by and construed in
accordance with the law of the State of Colorado.
Section 14. Severability. If any provision of this Agreement shall be held or deemed to be or
shall, in fact, be invalid, inoperative or unenforceable as applied in any particular case in any jurisdiction
or jurisdictions, or in all jurisdictions because it conflicts with any provisions of any Constitution, statute,
rule of public policy, or any other reason, such circumstances shall not have the effect of rendering the
provision in question invalid, inoperative or unenforceable in any other case or circumstance, or of
rendering any other provision or provisions of this Agreement invalid,inoperative or unenforceable to any
extent whatever.
Section 15. Business Day. For purposes of this Agreement,"business day"means any day on
which the New York Stock Exchange is open for trading.
Section 16. Section Headings. Section headings have been inserted in this Agreement as a
matter of convenience of reference only, and it is agreed that such section headings are not a part of this
Agreement and will not be used in the interpretation of any provisions of this Agreement.
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Section 17. Counterparts. This Agreement may be executed in several counterparts each of
which shall be regarded as an original (with the same effect as if the signatures thereto and hereto were
upon the same document)and all of which shall constitute one and the same document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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If you agree with the foregoing,please sign the enclosed counterpart of this Agreement and return
it to the Underwriter. This Agreement shall become a binding agreement between you and the Underwriter
when at least the counterpart of this Agreement shall have been signed by or on behalf of each of the parties
hereto.
•
Respectfully submitted,
RBC CAPITAL MARKETS,LLC
By:
Authorized Officer
Accepted ,2021 at a.m./p.m. MDT
UMB BANK,N.A.
acting solely in its capacity as
Trustee under the Indenture
By:
Authorized Officer
Accepted ,2021 at a.m./p.m.MDT
ACKNOWLEDGED THIS ,2021 AT
EAGLE COUNTY, COLORADO
By:
Chief Financial Officer
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•
APPENDIX A
MATURITY SCHEDULE,INTEREST RATES
AND REDEMPTION PROVISIONS
Hold the
Maturing Principal Interest Initial Offering
(December 1) Amount Rate Offering Price 10%Test Used Price Used
[t Term Certificates]
[° Priced to first optional redemption date of December 1,20 at par.]
Optional Redemption. The Certificates maturing on and after December 1, 20_are to be subject
to redemption prior to their respective maturity dates at the option of the County, in whole or in part, in
integral multiples of$5,000,and if in part in such order of maturities as the County is to determine and by
lot within a maturity, on December 1,20 and on any date thereafter, at a redemption price equal to the
principal amount of the Certificates so redeemed plus accrued interest to the redemption date without a
premium.
Mandatory Sinking Fund Redemption. [TO BE DETERMINED]
Extraordinary Mandatory Redemption. If the Lease is terminated by reason of the occurrence of
(a) an Event of Nonappropriation, (b) an Event of Lease Default, or (c) in the event that (i)the Leased
Property is damaged or destroyed in whole or in part by fire or other casualty,or(ii)title to,or the temporary
or permanent use of,the Leased Property has been taken by eminent domain by any governmental body,or
(iii) breach of warranty or any material defect with respect to the Leased Property becomes apparent, or
(iv)title to or the use of all or the Leased Property is lost by reason of a defect in title thereto,and the Net
Proceeds of any insurance, performance bond or condemnation award, or Net Proceeds received as a
consequence of defaults under contracts relating to the Leased Property,made available by reason of such
occurrences,are to be insufficient to pay in full,the cost of repairing or replacing the Leased Property,and
the County does not appropriate sufficient funds for such purpose or cause the Lease to be amended in order
that Additional Certificates may be executed and delivered pursuant to the Indenture for such purpose,the
Certificates are required to be called for redemption. If called for redemption,as described in the Indenture,
the Certificates are to be redeemed in whole on such date or dates as the Trustee may determine, for a
redemption price equal to the principal amount thereof,plus accrued interest to the redemption date(subject
to the availability of funds as described below).
If the Net Proceeds, including the Net Proceeds from the exercise of any Lease Remedy under the
Lease, otherwise received and other moneys then available under the Indenture are insufficient to pay in
full the principal of and accrued interest on all Outstanding Certificates,the Trustee may,or at the request
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of the Owners of a majority in aggregate principal amount of the Certificates Outstanding, and upon
indemnification as provided in the Indenture, without any further demand or notice, is to, exercise all or
any combination of Lease Remedies as provided in the Lease and the Certificates are to be redeemed by
the Trustee from the Net Proceeds resulting from the exercise of such Lease Remedies and all other moneys,
if any,then on hand and being held by the Trustee for the Owners of the Certificates.
If the Net Proceeds resulting from the exercise of such Lease Remedies and other moneys are
insufficient to redeem the Certificates at 100%of the principal amount thereof plus interest accrued to the
redemption date, then such Net Proceeds resulting from the exercise of such Lease Remedies and other
moneys are to be allocated proportionately among the Certificates, according to the principal amount
thereof Outstanding. In the event that such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys are in excess of the amount required to redeem the Certificates at 100%of the
principal amount thereof plus interest accrued to the redemption date, then such excess moneys are to be
paid to the County as an overpayment of the Purchase Option Price. Prior to any distribution of the Net
Proceeds resulting from the exercise of any of such remedies,the Trustee is to be entitled to payment of its
reasonable and customary fees for all services rendered in connection with such disposition, as well as
reimbursement for all reasonable costs and expenses, including attorneys' fees, incurred thereby, from
proceeds resulting from the exercise of such Lease Remedies and other moneys.
IF THE CERTIFICATES ARE REDEEMED PURSUANT TO THIS SECTION OF THE
INDENTURE FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT
THEREOF PLUS INTEREST ACCRUED TO THE REDEMPTION DATE, SUCH PARTIAL
PAYMENT IS TO BE DEEMED TO CONSTITUTE A REDEMPTION IN FULL OF THE RELATED
CERTIFICATES, AND UPON SUCH A PARTIAL PAYMENT NO OWNER OF SUCH
CERTIFICATES IS TO HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST THE TRUSTEE
OR THE COUNTY.
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APPENDIX B
[Attach Preliminary Official Statement]
•
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APPENDIX C
Eagle County, Colorado (the "County") hereby represents and warrants to and agrees with RBC
Capital Markets,LLC(the"Underwriter")and UMB Bank,n.a. (the"Trustee")as follows:
(a) Capitalized terms used in this Appendix shall have the meanings ascribed to such terms
elsewhere in this Agreement.
(b) The County is a duly organized and existing County,validly existing as such under and by
virtue of the Constitution and laws of the State and has, and at the date of the Closing will have,full legal
right,power and authority(i)to enter into this Agreement,the Indenture,the Site Lease,the Lease,and the
Disclosure Agreement, (ii) to adopt the County Resolution (as defined below), and (iii) to carry out and
consummate the transactions contemplated by this Agreement,the County Resolution,the Site Lease,the
Lease,and the Official Statement;
(c) The County has complied,and will at the Closing be in compliance,in all material respects
insofar as related to the transactions contemplated hereby and by the Official Statement, with the County
Resolution,the Site Lease,the Lease,and the Constitution and laws of the State;
(d) By official action prior to or concurrently with the acceptance hereof,the Board of County
Commissioners of the County has duly adopted the resolution (the "County Resolution") authorizing the
execution and delivery of the Site Lease, the Lease, the Disclosure Agreement, and this Agreement, has
duly authorized and approved the distribution of the Preliminary Official Statement, has duly authorized
and approved the execution and delivery of, and the performance by the County of the obligations on its
part contained in,the County Resolution,the Indenture,the Site Lease,the Lease,the Disclosure Agreement
and this Agreement, and assuming due authorization, execution and delivery by the other parties thereto,
all such instruments constitute valid and binding obligations of the County enforceable in accordance with
their respective terms, and the Board of County Commissioners of the County has duly authorized and
approved the consummation by it of all other transactions contemplated by this Agreement,the Disclosure
Agreement,the Indenture,the Site Lease,the Lease and the Official Statement;
(e) The County is not in breach of or default in any material respect under any applicable
constitutional provision,law or administrative regulation of the State or the United States or any applicable
judgment or decree or any loan agreement,indenture,bond,note,ordinance,agreement or other instrument
to which the County is a party or to which the County is or any of its property or assets are otherwise
subject, and no event has occurred and is continuing which constitutes or with the passage of time or the
giving of notice, or both, would constitute a default or event of default by the County under any of the
foregoing,which,to the best of the County's knowledge,may have a material adverse impact on the County,
the Certificates,the County Resolution,the Official Statement,the Site Lease,the Lease or this Agreement
or the obligations of the County with respect thereto;
(f) To the best of the County's knowledge,the execution and delivery of,and compliance with
the provisions of,the Site Lease,the Lease,the Disclosure Agreement and this Agreement and the adoption
of the County Resolution will not conflict or constitute a breach of or default under any constitutional
provision, law,regulation,judgment, decree, order, agreement,bond,note,resolution, ordinance, or other
instrument to which the County is a party or is otherwise subject;
(g) Except as may be required under the securities laws of any state, all approvals, consents
and orders of any governmental authority, board, agency or commission having jurisdiction which would
constitute a condition precedent to the performance by the County of its obligations under this Agreement,
the Site Lease,and the Lease have been obtained or will be obtained prior to the Closing;
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(h) The Preliminary Official Statement,as of its date was,and the final Official Statement,as
of its date,and if supplemented or amended pursuant to this Agreement, as of the date of such supplement
or amendment, did not or will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements and information contained
therein,in light of the circumstances under which made,not misleading;
(i) No legal proceedings are pending or, to the best of the County's knowledge, threatened:
(i)contesting or affecting the validity or authority for the execution and delivery of the Certificates,the Site
Lease, the Lease, or this Agreement, or seeking to restrain or enjoin the execution and delivery of the
Certificates; (ii) seeking to prohibit, restrain or enjoin the issuance, delivery or sale of the Certificates;
(iii)contesting the completeness or accuracy of the Official Statement;or(iv)contesting the power of the
officials of the County or their authority with respect to the County Resolution,the Disclosure Agreement,
the Site Lease,the Lease,the Official Statement or this Agreement;
(j) The County will furnish such information, execute such instruments and take such other
action in cooperation with the Underwriter as the Underwriter may reasonably request to qualify the
Certificates for offer and sale under the Blue Sky or other securities laws and regulations of such states and
other jurisdictions of the United States as the Underwriter may designate; provided, however, that the
County shall not be required to register as a dealer or broker in any state or jurisdiction or to subject itself
to service of process in any jurisdiction in which the County is not now subject to such service;
(k) The County will not take or omit to take any action; which action or omission will in any
way cause the proceeds from the sale of the Certificates to be applied in a manner contrary to that provided
for in the County Resolution and the Indenture;
(1) Any certificate signed by an authorized officer of the County and delivered to the
Underwriter shall be deemed a representation and warranty to the Underwriter as to the statement made
therein;and
(m) Except as disclosed in the Official Statement,the County has not failed in the last five years
to materially comply with any prior undertaking entered into pursuant to Rule 15c2-12.
Dated ,2021
EAGLE COUNTY,COLORADO
By:
Chief Financial Officer
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APPENDIX D
CERTIFICATES OF PARTICIPATION, SERIES 2021
Evidencing Proportionate Interests in the Base Rentals and other Revenues under an Annually
Renewable Lease Purchase Agreement between UMB BANK,N.A., solely in its capacity as
trustee under the Indenture,as lessor,and EAGLE COUNTY,COLORADO,as lessee
FORM OF ISSUE PRICE CERTIFICATE
The undersigned, on behalf of RBC Capital Markets, LLC ("RBC") hereby certifies as set forth
below with respect to the sale and issuance of the above-captioned certificates(the"Certificates").
1. Sale of the[Certificates/General Rule Maturities]. As of the date of this certificate, for
each Maturity of the [Certificates/General Rule Maturities], the first price at which at least 10% of such
Maturity of the Certificates was sold to the Public is the respective price listed in Schedule A.
2. [Initial Offering Price of the Hold-the-Offering-Price Maturities.
(a) RBC offered the Hold-the-Offering-Price Maturities to the Public for purchase at
the respective initial offering prices listed in Schedule A(the"Initial Offering Prices")on or before
the Sale Date. A copy of the pricing wire or equivalent communication for the Certificates is
attached to this certificate as Schedule B.
(b) As set forth in the Certificate Purchase Agreement, dated , 2021, by
and among RBC,UMB Bank,n.a.,acting solely in its capacity as Trustee under the Indenture,and
the Issuer, RBC has agreed in writing that, (i) for each Maturity of the Hold-the-Offering-Price
Maturities, it would neither offer nor sell any of the Certificates of such Maturity to any person at
a price that is higher than the Initial Offering Price for such Maturity during the Holding Period for
such Maturity (the "hold-the-offering-price rule"), and (ii) any selling group agreement shall
contain the agreement of each dealer who is a member of the selling group, and any retail
distribution agreement shall contain the agreement of each broker-dealer who is a party to the retail
distribution agreement, to comply with the hold-the-offering-price rule. Pursuant to such
agreement, no Underwriter(as defined below) has offered or sold any Maturity of the Hold-the-
Offering-Price Maturities at a price that is higher than the respective Initial Offering Price for that
Maturity of the Certificates during the Holding Period.]
3. Defined Terms.
(a) [General Rule Maturities means those Maturities of the Certificates listed in
Schedule A hereto as the"General Rule Maturities."]
(b) [Hold-the-Offering-Price Maturities means those Maturities of the Certificates
listed in Schedule A hereto as the"Hold-the-Offering-Price Maturities."
(c) Holding Period means, with respect to a Hold-the-Offering-Price Maturity, the
period starting on the Sale Date and ending on the earlier of(i)the close of the fifth business day
after the Sale Date( , 2021), or(ii)the date on which RBC has sold at least 10% of
such Hold-the-Offering-Price Maturity to the Public at prices that are no higher than the Initial
Offering Price for such Hold-the-Offering-Price Maturity.]
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(d) Issuer means Eagle County,Colorado.
(e) Maturity means Certificates with the same credit and payment terms. Certificates
with different maturity dates,or Certificates with the same maturity date but different stated interest
rates,are treated as separate maturities.
(f) Public means any person (including an individual, trust, estate, partnership,
association, company, or corporation) other than an Underwriter or a related party to an
Underwriter. The term"related party"for purposes of this certificate generally means any two or
more persons who have greater than 50 percent common ownership,directly or indirectly.
(g) [Sale Date means the first day on which there is a binding contract in writing for
the sale of a Maturity of the Certificates. The Sale Date of the Certificates is ,2021.
(h) Underwriter means (i) any person that agrees pursuant to a written contract with
the Issuer (or with the lead underwriter to form an underwriting syndicate) to participate in the
initial sale of the Certificates to the Public, and (ii) any person that agrees pursuant to a written
contract directly or indirectly with a person described in clause(i)of this paragraph to participate
in the initial sale of the Certificates to the Public(including a member of a selling group or a party
to a retail distribution agreement participating in the initial sale of the Certificates to the Public).]
The representations set forth in this certificate are limited to factual matters only. Nothing in this
certificate represents RBC's interpretation of any laws, including specifically Sections 103 and 148 of the
Internal Revenue Code of 1986, as amended, and the Treasury Regulations thereunder. The undersigned
understands that the foregoing information will be relied upon by the Issuer with respect to certain of the
representations set forth in the tax certificate and with respect to compliance with the federal income tax
rules affecting the Certificates,and by Ballard Spahr LLP in connection with rendering its opinion that the
interest on the Certificates is excluded from gross income for federal income tax purposes,the preparation
of the Internal Revenue Service Form 8038-G, and other federal income tax advice that it may give to the
Issuer from time to time relating to the Certificates.
RBC CAPITAL MARKETS,LLC
By:
Name:
Dated: ,2021
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SCHEDULE A
SALE PRICES OF THE GENERAL MATURITIES
[AND INITIAL OFFERING PRICES OF THE
HOLD-THE-OFFERING-PRICE MATURITIES]
(Attached)
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[SCHEDULE B
PRICING WIRE OR EQUIVALENT COMMUNICATION
(Attached)]
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Ballard Draft: 7/06/2021
CONTINUING DISCLOSURE AGREEMENT
THIS CONTINUING DISCLOSURE AGREEMENT (the "Disclosure Agreement")
is executed and delivered by EAGLE COUNTY, COLORADO (the "County") and DIGITAL
ASSURANCE CERTIFICATION, LLC, in its capacity as dissemination agent (the
"Dissemination Agent") in connection with the execution and delivery of the Eagle County,
Colorado Certificates of Participation, Series 2021 (the "Certificates"). The Certificates
evidence proportionate interests in the base rentals and certain other revenues pursuant to an
annually renewable Lease Purchase Agreement dated as of August 1, 2021, between UMB Bank,
n.a. (the "Trustee"), solely in its capacity as trustee under the hereinafter defined Indenture, as
lessor, and the County, as lessee. The Certificates are being executed and delivered pursuant to
an Indenture of Trust dated as of August 1, 2021 (the "Indenture") delivered by the Trustee.
Proceeds of the Certificates will be used to provide funds to (i) finance a portion of the costs of
the acquisition, construction and improvement of approximately 12 miles of paved public trail,
including the acquisition of the real property in connection therewith, and (ii)to pay certain costs
of executing and delivering the Certificates.
In consideration of the purchase of the Certificates by the Participating Underwriter (as
defined below), the County and the Dissemination Agent covenant and agree as follows:
Section 1. Purpose of the Disclosure Agreement. This Disclosure Agreement is
being executed and delivered by the County and the Dissemination Agent for the benefit of the
holders and beneficial owners of the Certificates and in order to assist the Participating
Underwriter in complying with the Rule (as each such term is defined below).
Section 2. Definitions. In addition to the definitions set forth in the Indenture or in
the hereinafter defined Official Statement, which apply to any capitalized terms used in this
Disclosure Agreement unless otherwise defined in this Section, the following capitalized terms
shall have the following meanings:
"Annual Report" shall mean any Annual Report provided by the County pursuant to, and
as described in, Sections 3 and 4 of this Disclosure Agreement.
"Dissemination Agent" shall mean, initially, Digital Assurance Certification, LLC, or any
successor Dissemination Agent designated in writing by the County and which has filed with the
County a written acceptance of such designation.
"Financial Obligation"means a(i) debt obligation; (ii) derivative instrument entered into
in connection with, or pledged as security or a source of payment for, an existing or planned debt
obligation; or (iii) guarantee of (i) or (ii). The term Financial Obligation shall not include
municipal securities as to which a final official statement has been provided to the MSRB
consistent with the Rule.
"Listed Events" shall mean any of the events listed in Section 5 of this Disclosure
Agreement.
"MSRB" shall mean the Municipal Securities Rulemaking Board, or any other entity
designated or authorized by the United States Securities and Exchange Commission to receive
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reports pursuant to the Rule. Unless otherwise designated by the MSRB or the Securities and
Exchange Commission, filings with the MSRB are to be made through the Electronic Municipal
Market Access (EMMA) system of the MSRB available on the Internet at http://emma.msrb.org.
"Official Statement" shall mean the Official Statement of the County dated
1, 2021 and relating to the Certificates.
"Participating Underwriter" shall mean the original underwriter(s) of the Certificates
required to comply with the Rule in connection with an offering of the Certificates.
"Rule" shall mean Rule 15c2-12(b)(5) adopted by the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as the same may be amended from time
to time.
Section 3. Provision of Annual Reports.
(a) The County shall, or shall cause the Dissemination Agent to, not later than
210 days after the end of each fiscal year of the County (presently December 31) commencing
with the fiscal year ending December 31, 2021, provide to the MSRB in electronic format an
Annual Report which is consistent with the requirements of Section 4 of this Disclosure
Agreement. Not later than fifteen (15) business days prior to said date, the County shall provide
the Annual Report to the Dissemination Agent. The Annual Report may be submitted as a single
document or as separate documents comprising a package, and may cross-reference other
information as provided in Section 4 of this Disclosure Agreement; provided that the audited
financial statements of the County may be submitted separately from the balance of the Annual
Report.
(b) If by ten (10) Business Days prior to the date specified in subsection (a)
for providing the Annual Report to the MSRB, the Dissemination Agent has not received a copy
of the County's Annual Report,the Dissemination Agent shall contact the County to determine if
the County is in compliance with subsection(a).
(c) If the Dissemination Agent is unable to verify that the Annual Report has
been provided to the MSRB by the date required in subsection (a), the Dissemination Agent
shall, in a timely manner, send a notice of failure to file the Annual Report to the MSRB in an
electronic format.
(d) The Dissemination Agent shall determine each year prior to the date for
providing the Annual Report the website address to which the MSRB directs the Annual Report
to be submitted.
Section 4. Content of Annual Reports.
(a) The County's Annual Report shall contain or incorporate by reference the
following:
(i) A copy of the County's annual financial statements prepared in
accordance with generally accepted accounting principles audited by a firm of certified
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public accountants. If the County's audited annual financial statements are not available
by the time specified in 3(a) above, unaudited financial statements will be provided as
part of the Annual Report and audited financial statements will be provided when and if
available.
(ii) An update of the information of the type contained in the Official
Statement in substantially the scope and form contained in the tables under the headings
captioned, "COUNTY FINANCIAL INFORMATION—Historical Property Tax Data,"
"—Sales Taxes,"and"—Budget and Appropriation Procedure."
(b) Any or all of the items listed above may be incorporated by reference from
other documents, including official statements of debt issues with respect to which the County is
an "obligated person" (as defined by the Rule), or the County's audited financial statements, in
each case only if such other documents have been submitted to the public on the Internet website
of the MSRB or the Securities and Exchange Commission. If the document incorporated by
reference is a final official statement, it must be available from the MSRB. The County shall
clearly identify each such document incorporated by reference.
Section 5. Reporting of Significant Events.
(a) At any time the Certificates are outstanding, in a timely manner not in
excess of ten (10) business days after the occurrence of a Listed Event, the County shall provide
or cause to be provided to the MSRB notice of any of the following Listed Events:
(i) Principal and interest payment delinquencies;
(ii) Non-payment related defaults, if material;
(iii) Unscheduled draws on debt service reserves reflecting financial
difficulties;
(iv) Unscheduled draws on credit enhancements reflecting financial
difficulties;
(v) Substitution of credit or liquidity providers, or their failure to
perform;
(vi) Adverse tax opinions,the issuance by the Internal Revenue Service
of proposed or final determinations of taxability, Notices of Proposed Issue (IRS Form
5701-TEB)or other material notices or determinations with respect to the tax status of the
Certificates, or other material events affecting the tax status of the Certificates;
(vii) Modifications to rights of holders of the Certificates, if material;
(viii) Bond calls, if material, and tender offers;
(ix) Defeasances;
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(x) Release, substitution, or sale of property securing repayment of the
Certificates, if material;
(xi) Rating changes;
(xii) Bankruptcy, insolvency, receivership or similar proceedings of the
County1;
(xiii) The consummation of a merger, consolidation, or acquisition
• involving the County or the sale of all or substantially all of the assets of the County,
other than in the ordinary course of business, the entry into a definitive agreement to
undertake such an action or the termination of a definitive agreement relating to any such
actions, other than pursuant to its terms, if material;
(xiv) Appointment of a successor or additional trustee or the change of
name of a trustee, if material;
(xv) Incurrence of a Financial Obligation of the County, if material, or
agreement to covenants, events of default, remedies, priority rights, or other similar terms
of a financial obligation of the County, any of which affect holders of Certificates, if
material; and
(xvi) Default, event of acceleration, termination event, modification of
terms, or other similar events under the terms of a Financial Obligation of the County,
any of which reflect financial difficulties.
Section 6. Termination of Reporting Obligation. The County's obligations under
this Disclosure Agreement shall terminate upon the earlier of: (i) the date of legal defeasance,
prior redemption or payment in full of all of the Certificates; (ii)the date that the County shall no
longer constitute an"obligated person"within the meaning of the Rule; or(iii)the date on which
those portions of the Rule which require this Disclosure Agreement are held to be invalid by a
court of competent jurisdiction in a non-appealable action, have been repealed retroactively or
otherwise do not apply to the Certificates.
Section 7. Dissemination Agent. The County hereby appoints Digital Assurance
Certification, LLC as a Dissemination Agent hereunder. The County may discharge Digital
Assurance Certification, LLC as a Dissemination Agent hereunder with or without appointing a
successor Dissemination Agent.
Section 8. Amendment, Waiver. Notwithstanding any other provision of this
Disclosure Agreement, the County may amend this Disclosure Agreement, and any provision of
' For the purposes of the event identified in paragraph (5)(a)(xii) hereof, the event is considered to occur when any of the
following occur: (i)the appointment of a receiver, fiscal agent or similar officer for the County in a proceeding under the U.S.
Bankruptcy Code or in any other proceeding under state or federal law in which a court or governmental authority has assumed
jurisdiction over substantially all of the assets or business of the County,or if such jurisdiction has been assumed by leaving the
existing governing body and officials or officers in possession but subject to the supervision and orders of a court or
governmental authority,or(ii)the entry of an order confirming a plan of reorganization,arrangement or liquidation by a court or
governmental authority having supervision or jurisdiction over substantially all of the assets or business of the County.
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this Disclosure Agreement may be waived, (i) if such amendment or waiver is consented to by
the owners of no less than a majority in aggregate principal amount of the Certificates obtained
in the manner prescribed by the Indenture, (ii) if such amendment or waiver is otherwise required
by the Rule or permitted by the Rule without consent of owners of the Certificates or (iii)
without the consent of the holders or beneficial owner of the Certificates, if such amendment or
waiver is supported by an opinion of counsel expert in federal securities laws to the effect that
such amendment or waiver does not, in and of itself, cause this Disclosure Agreement to violate
the Rule, but taking into account any subsequent change in or official interpretation of the Rule.
The County will provide notice of such amendment or waiver to the MSRB.
Section 9. Additional Information. Nothing in this Disclosure Agreement shall be
deemed to prevent the County from disseminating any other information, using the means of
dissemination set forth in this Disclosure Agreement or any other means of communication, or
including any other information in any Annual Report in addition to that which is required by
this Disclosure Agreement. If the County chooses to disseminate any information or include any
information in any Annual Report in addition to that which is specifically required by this
Disclosure Agreement, the County shall have no obligation under this Disclosure Agreement to
update such information or include it in any future Annual Report.
Section 10. Default. In the event of a failure of the County to comply with any
provision of this Disclosure Agreement, any owner of the Certificates may take such actions as
may be necessary and appropriate, including seeking mandamus or specific performance by
court order, to cause the County to comply with its obligations under this Disclosure Agreement.
A default under this Disclosure Agreement shall not be deemed an event of default under the
Indenture, and the sole remedy under this Disclosure Agreement shall be an action to compel
performance.
Section 11. Duties, Immunities and Liabilities of Dissemination Agent. The
Dissemination Agent shall have no responsibility with respect to the content of any disclosures
or notice pursuant to the terms hereof. The Dissemination Agent shall have no responsibility for
the County's failure to report to the Dissemination Agent a Listed Event or a duty to determine
the materiality thereof. The Dissemination Agent may conclusively rely upon certifications of
the County at all times. The Dissemination Agent may resign as dissemination agent hereunder
at any time upon 30 days prior written notice to the County. The Dissemination Agent shall have
no duty or obligation to review or verify any information contained in the Annual Report or any
other information, disclosures or notices provided to it by the County and shall not be deemed to
be acting in any fiduciary capacity for the County, the owners of the Certificates, or any other
party.
Section 12. Filing. The filing of Annual Report, notices of Listed Events or any other
notice required by this Disclosure Agreement shall be effected by sending the filing or notice to
the MSRB, in such designated electronic format, accompanied by such identifying information,
as shall have been prescribed by the MSRB and which shall be in effect on the date of filing of
such information.
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Section 14. Beneficiaries. This Disclosure Agreement shall inure solely to the benefit
of the County, the Dissemination Agent, the Participating Underwriter and the owners from time
to time of the Certificates, and shall create no rights in any other person or entity.
[Signatures on following page]
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Date: [ ], 2021.
EAGLE COUNTY, COLORADO
By:
Commissioner, Board of County
Commissioners
[ SEAL]
Attest:
County Clerk and Recorder
DIGITAL ASSURANCE
CERTIFICATION, LLC
By:
, [Senior Vice
President]
[Signature Page to Continuing Disclosure Agreement
DocuSign Envelope ID:BA6E6929-FFFC-405D-9CA6-07D7256521F9
Ballard Spahr Draft: 07/15/2021
INDENTURE OF TRUST
DATED AS OF AUGUST 1,2021
BY
UMB BANK,N.A.,
AS TRUSTEE
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Table of Contents
Page
ARTICLE I DEFINITIONS 2
Section 1.01 Certain Funds and Accounts 2
Section 1.02 Definitions 3
ARTICLE II THE CERTIFICATES 6
Section 2.01 Amount of the Certificates;Nature of the Certificates 6
Section 2.02 Forms, Denominations, Maturities and Other Terms of Certificates 7
Section 2.03 Execution; Global Book-Entry System 8
Section 2.04 Delivery of the Certificates 10
Section 2.05 Mutilated, Lost, Stolen or Destroyed Certificates 10
Section 2.06 Registration of Certificates; Persons Treated as Owners; Transfer
and Exchange of Certificates 11
Section 2.07 Cancellation of Certificates 11
Section 2.08 Additional Certificates 12
Section 2.09 Uniform Commercial Code;Negotiability 13
ARTICLE III REVENUES AND FUNDS 13
Section 3.01 Segregation and Disposition of Proceeds of the Certificates 13
Section 3.02 Application of Revenues and Other Moneys 14
Section 3.03 Base Rentals Fund 14
Section 3.04 Reserved 14
Section 3.05 Rebate Fund 14
Section 3.06 Costs of Execution and Delivery Fund 15
Section 3.07 Moneys to be Held in Trust 16
Section 3.08 Nonpresentment of Certificates 16
Section 3.09 Repayment to the County from the Trustee 16
ARTICLE IV REDEMPTION OF CERTIFICATES 16
Section 4.01 Optional Redemption 16
Section 4.02 Mandatory Sinking Fund Redemption 17
Section 4.03 Extraordinary Mandatory Redemption 17
Section 4.04 Partial Redemption 19
Section 4.05 Notice of Redemption 19
Section 4.06 Redemption Payments 20
ARTICLE V INVESTMENTS 21
Section 5.01 Investment of Moneys 21
Section 5.02 Method of Valuation and Frequency of Valuation 22
ARTICLE VI DEFEASANCE AND DISCHARGE 22
Section 6.01 Defeasance and Discharge 22
ARTICLE VII EVENTS OF INDENTURE DEFAULT AND REMEDIES 24
Section 7.01 Events of Indenture Default 24
Section 7.02 Remedies 24
Section 7.03 Legal Proceedings by Trustee 24
Section 7.04 Discontinuance of Proceedings by Trustee 25
Section 7.05 Owners of Certificates May Direct Proceedings 25
Section 7.06 Limitations on Actions by Owners of Certificates 25
Section 7.07 Trustee May Enforce Rights Without Possession of Certificates 26
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Section 7.08 Remedies Not Exclusive 26
Section 7.09 Delays and Omissions Not to Impair Rights;No Waiver of One
Default to Affect Another 26
Section 7.10 Application of Moneys in Event of Indenture Default 26
ARTICLE VIII CONCERNING THE TRUSTEE 27
Section 8.01 Duties of the Trustee 27
Section 8.02 Liability of Trustee; Trustee's Use of Agents 27
Section 8.03 Representations and Covenants of Trustee 29
Section 8.04 Compensation 30
Section 8.05 Notice of Default; Right to Investigate 30
Section 8.06 Obligation to Act on Defaults 31
Section 8.07 Reliance on Requisition, etc. 31
Section 8.08 Trustee May Own Certificates 31
Section 8.09 Construction of Ambiguous Provisions 31
Section 8.10 Resignation of Trustee 32
Section 8.11 Removal of Trustee 32
Section 8.12 Appointment of Successor Trustee 32
Section 8.13 Qualification of Successor 32
Section 8.14 Instruments of Succession 32
Section 8.15 Merger of Trustee 33
Section 8.16 Intervention by Trustee 33
Section 8.17 Books and Record of the Trustee; Trustee Record Keeping 33
Section 8.18 Environmental Matters 33
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS OF THE
LEASE AND SITE LEASE 34
Section 9.01 Supplemental Indentures and Amendments Not Requiring
Certificate Owners' Consent 34
Section 9.02 Supplemental Indentures and Amendments Requiring Certificate
Owners' Consent 34
Section 9.03 Amendment of the Lease and the Site Lease 35
Section 9.04 Notice to Rating Agencies 36
Section 9.05 Opinions 36
ARTICLE X MISCELLANEOUS 36
Section 10.01 Evidence of Signature of Owners and Ownership of Certificates 36
Section 10.02 Inspection of the Leased Property 37
Section 10.03 Parties Interested Herein 37
Section 10.04 Titles, Headings, Etc 37
Section 10.05 Severability 37
Section 10.06 Governing Law 37
Section 10.07 Execution in Counterparts 37
Section 10.08 Notices 37
Section 10.09 Successors and Assigns 38
Section 10.10 Payments Due on a Day other than a Business Day 38
Section 10.11 No Personal Recourse 38
Section 10.12 Election Under Supplemental Public Securities Act 38
Section 10.13 Undertaking to Provide Ongoing Disclosure 38
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Section 10.14 Electronic Transactions 39
EXHIBIT A FORM OF CERTIFICATE
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THIS INDENTURE OF TRUST dated as of August 1, 2021 (this "Indenture"), is
executed and delivered by UMB BANK,N.A., a national banking association duly organized and
existing under the laws of the United States of America, solely in its capacity as trustee
(the"Trustee") for the benefit of the Owners of the Certificates as set forth in this Indenture.
RECITALS
WHEREAS, this Indenture is being executed and delivered to provide for the execution,
delivery and payment of and security for the Certificates,the net proceeds of which,together with
other available funds of the County, will be used to finance the Project; and
WHEREAS,the Certificates evidence undivided interests in the right to receive Revenues
under the Lease; and
WHEREAS, pursuant to the Lease, and subject to the rights of the County to not
appropriate the Base Rentals and Additional Rentals thereunder and, therefore, to not renew and
to terminate the Lease and other limitations as therein provided,the County is to pay certain Base
Rentals directly to the Trustee, for the benefit of the Owners of the Certificates, in consideration
of the County's right to possess and use the Leased Property.
WHEREAS, the Trustee has entered into this Indenture for and on behalf of the Owners
of the Certificates and the Trustee will hold the Revenues and the Leased Property and will exercise
the Trustee's rights under the Site Lease and the Lease for the equal and proportionate benefit of
the Owners of the Certificates as described herein,and will disburse money received by the Trustee
in accordance with this Indenture.
WHEREAS,the proceeds from the sale of the Certificates to the Owners will be disbursed
by the Trustee to implement the Project as described herein and in the Lease and for other purposes
set forth herein.
NOW,THEREFORE,THIS INDENTURE WITNESSETH:
GRANTING CLAUSES
The Trustee, in consideration of the premises, the purchase of the Certificates by the
Owners and other good and valuable consideration,the receipt and sufficiency of which are hereby
acknowledged, in order to secure the payment of the principal of, premium, if any, and interest on
the Certificates and all other amounts payable to the Owners with respect to the Certificates, to
secure the performance and observance of all the covenants and conditions set forth in the
Certificates and this Indenture, and to declare the terms and conditions upon and subject to which
the Certificates are executed,delivered and secured,has executed and delivered this Indenture and
has granted, assigned, pledged, bargained, sold, alienated, remised, released, conveyed, set over
and confirmed, and by these presents does grant, assign, pledge, bargain, sell, alienate, remise,
release, convey, set over and confirm, in trust upon the terms set forth herein all and singular the
following described property, franchises and income, including any title or interest therein
acquired after these presents, all and singular the following described property, franchises and
income,including any title therein acquired after these presents(collectively,the"Trust Estate"):
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GRANTING CLAUSE FIRST:
All rights, title and interest of the Trustee in, to and under the Site Lease and the Lease
relating to the Leased Property,subject to Permitted Encumbrances(other than the Trustee's rights
to payment of its fees and expenses under the Site Lease and the Lease and the rights of third
parties to Additional Rentals payable to them under the Lease); and
GRANTING CLAUSE SECOND:
All Revenues and any other receipts receivable by or on behalf of the Trustee pursuant to
the Lease, including without limitation, all Base Rentals, Prepayments,the Purchase Option Price
and Net Proceeds; and
GRANTING CLAUSE THIRD:
All money and securities from time to time held by the Trustee under this Indenture in the
Base Rentals Fund, and the Costs of Execution and Delivery Fund(but not the Rebate Fund), any
and all other property, revenues or funds from time to time hereafter by delivery or by writing of
any kind specially granted, assigned or pledged as and for additional security hereunder, by any
Person in favor of the Trustee, which shall accept any and all such property and hold and apply
the same subject to the terms hereof.
TO HAVE AND TO HOLD IN TRUST, NEVERTHELESS, the Trust Estate for the
equal and ratable benefit and security of all Owners of the Certificates,without preference,priority
or distinction as to lien or otherwise of any one Certificate over any other Certificate upon the
terms and subject to the conditions hereinafter set forth.
PROVIDED, HOWEVER, that if the principal of the Certificates, the premium, if any,
and the interest due or to become due thereon, shall be paid at the times and in the manner
mentioned in the Certificates, according to the true intent and meaning thereof, and if there are
paid to the Trustee all sums of money due or to become due to the Trustee in accordance with the
terms and provisions hereof, then, upon such final payments,this Indenture and the rights hereby
granted shall cease, terminate and be void; otherwise this Indenture shall be and remain in full
force and effect.
THIS INDENTURE FURTHER WITNESSETH and it is expressly declared, that all
Certificates are to be executed and delivered and all said property, rights, interests, revenues and
receipts hereby pledged are to be dealt with and disposed of under, upon and subject to the terms,
conditions, stipulations,covenants,agreements,trusts,uses and purposes as hereinafter expressed,
and the Trustee has agreed and covenanted,and does hereby agree and covenant, for the benefit of
the Owners, as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Certain Funds and Accounts. All references herein to any Funds and
Accounts shall mean the Funds and Accounts so designated which are established pursuant to
Article III hereof.
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Section 1.02 Definitions. All capitalized terms defined in Article I of the Lease shall
have the same meaning in this Indenture. In addition, the following capitalized terms shall have
the following meanings under this Indenture:
"Additional Certificates" means additional certificates of participation which may be
executed and delivered pursuant to Section 2.08 of this Indenture.
"Authorized Denominations"means $5,000 or integral multiples thereof.
"Base Rentals"as defined in the Lease, means the rental payments payable by the County
during the Lease Term,which constitute payments payable by the County for and in consideration
of the right to possess and use the Leased Property as set forth in Exhibit C to the Lease. Base
Rentals do not include Additional Rentals.
"Base Rentals Fund" means the fund created under Section 3.03 hereof.
"Beneficial Owners"means any person for which a DTC Participant acquires an interest in
Certificates.
"Business Day as defined in the Lease, 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 remain closed or(b) on which the Federal Reserve System is closed.
"Cede & Co."means DTC's nominee or any new nominee of DTC.
"Certificate Purchase Agreement" means the Certificate Purchase Agreement dated
July[27], 2021, by and among the County, the Underwriter, and the Trustee relating to the
Certificates.
"Certificates" means the "Certificates of Participation, Series 2021, Evidencing
Proportionate Interests in the Base Rentals and other Revenues under an annually renewable Lease
Purchase Agreement dated as of August 1, 2021, by and between UMB Bank, n.a., solely in its
capacity as trustee under the Indenture, as lessor, and Eagle County, Colorado,as lessee"dated as
of their date of delivery, executed, and delivered pursuant to this Indenture.
"Closing"means the date of execution and delivery of the Certificates.
"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 the Lease
and related to the authorization,sale,execution and delivery of the Certificates and to be paid from
the Costs of Execution and Delivery Fund, including but not limited to,title insurance premiums,
closing costs and other costs relating to the leasing of the Leased Property under the Site Lease
and the Lease, costs of preparation and reproduction of documents, costs of printing the
Certificates and the Preliminary and final Official Statements prepared in connection with the
offering of the Certificates, costs of Rating Agencies and costs to provide information required by
Rating Agencies for the rating or proposed rating of Certificates, initial fees and charges of the
Trustee and Paying Agent, legal fees and charges, including fees and expenses of Special Counsel,
counsel to the Underwriter, and counsel to the Trustee, if any, fees and disbursements of
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professionals and the Underwriter, fees and charges for preparation, execution and safekeeping of
the Certificates, premiums for insurance on the Certificates, and any other cost, charge or fee in
connection with the original sale and the execution and delivery of the Certificates; provided,
however, that Additional Rentals shall not be Costs of Execution and Delivery of the Certificates
and are to be paid by the County as provided in the Lease.
"Costs of Execution and Delivery Fund"means the fund created under Section 3.06 hereof.
"C.R.S."means Colorado Revised Statutes, as amended.
"Depository" means any securities depository as the Trustee may provide and appoint
pursuant to Section 2.03 hereof, in accordance with then current guidelines of the Securities and
Exchange Commission,which shall act as securities depository for the Certificates.
"DTC" means the Depository Trust Company, New York, New York, and its successors
and assigns.
"DTC Participant(s)" means any broker-dealer, bank or other financial institution from
time to time for which DTC holds Certificates as Depository.
"Event(s) of Indenture Default" means those defaults specified in Section 7.01 of this
• Indenture.
"Extraordinary Mandatory Redemption" means any redemption made pursuant to
Section 4.03 hereof.
"Federal Securities"means non-callable bills, certificates of indebtedness, notes or bonds
which are direct obligations of, or the principal of and interest on which are unconditionally
guaranteed by,the United States of America.
"Fiscal Year" as defined in the Lease, means the County's fiscal year, which begins on
January 1 of any calendar year and ends on December 31 of the same year, and which is also the
County's budget year within the meaning of Section 30-11-104.1, C.R.S., or any other period of
up to 12 months that is designated by statute or otherwise as the fiscal year for the County.
"Indenture" means this Indenture of Trust dated as of August 1, 2021, executed and
delivered by the Trustee, as the same may be hereafter amended or supplemented.
"Interest Payment Date"means, in respect of the Certificates,each June 1 and December 1,
commencing December 1, 2021.
"Lease"means the Lease Purchase Agreement dated as of August 1,2021,by and between
the Trustee, as lessor, and the County, as lessee, as the same may be amended.
"Optional Redemption"means any redemption made pursuant to Section 4.01 hereof
"Optional Redemption Date" means the date of redemption of Certificates upon the
Prepayment of Base Rentals or the payment of the Purchase Option Price under the Lease.
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"Outstanding" means, with respect to the Certificates, all Certificates executed and
delivered pursuant to this Indenture as of the time in question, except:
(a) All Certificates theretofore canceled or required to be canceled under
Section 2.07 of this Indenture;
(b) Certificates in substitution for which other Certificates have been executed
and delivered under Section 2.05 or 2.06 of this Indenture;
(c) Certificates which have been redeemed as provided in Article IV of this
Indenture;
(d) Certificates for the payment or redemption of which provision has been
made in accordance with Article VI of this Indenture;provided that,if such Certificates are
being redeemed,the required notice of redemption has been given or provision satisfactory
to the Trustee has been made therefor; and
(e) Certificates deemed to have been paid pursuant to Section 6.01 of this
Indenture.
"Owners"means the registered owners of any Certificates.
"Paying Agent" means the Trustee or any successor or additional paying agent appointed
pursuant to this Indenture.
"Permitted Investments" means those investments the County is authorized to enter into
under the laws of the State of Colorado.
"Rating Agency" or "Rating Agencies" means Moody's Investors Service, Inc. or other
nationally recognized securities rating agency or agencies as may be directed by the County in
writing to the Trustee.
"Rebate Fund"means the fund created under Section 3.05 hereof.
"Regular Record Date" in respect of the Certificates means the 15th day of the calendar
month immediately preceding the Interest Payment Date (or the Business Day immediately
preceding such 15th day, if such 15th day is not a Business Day).
"Revenues" means (a) all amounts payable by or on behalf of the County or with respect
to the Leased Property pursuant to the 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 created
under this Indenture; (c) any moneys which may be derived from any insurance in respect of the
Certificates; and (d)any moneys and securities, including investment income, held by the Trustee
in the Funds and Accounts established under this Indenture(except for moneys and securities held
in the Rebate Fund).
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"Site Lease"means the Site and Improvement Lease dated as of the date of this Indenture,
between the County, 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 County shall have the right to
select Special Counsel.
"Supplemental Act" means the Supplemental Public Securities Act, constituting Title 11,
Article 57, Part 2, C.R.S.
"Trust Estate" means all of the property placed in trust by the Trustee pursuant to the
Granting Clauses hereof
"Trustee" means UMB Bank, n.a., in its capacity as Trustee under this Indenture for the
benefit of the Owners of the Certificates and any Additional Certificates, and its successors and
assigns.
"Underwriter"means with respect to the Certificates, RBC Capital Markets, LLC.
ARTICLE II
THE CERTIFICATES
Section 2.01 Amount of the Certificates; Nature of the Certificates.
(a) Except as provided in Section 2.08 hereof, the aggregate original principal
amount of Certificates that may be executed and delivered pursuant to this Indenture shall
be $[PAR]. The Certificates shall constitute proportionate interests in the Trustee's right
to receive the Base Rentals under the Lease and other Revenues. The Certificates shall
constitute a contract between the Trustee and the Owners. In no event shall any decision
by the Board not to appropriate any amounts payable under the Lease be construed to
constitute an action impairing such contract.
(b) The Certificates shall not constitute a mandatory charge or requirement of
the County in any ensuing Fiscal Year beyond the current Fiscal Year, and shall not
constitute or give rise to a general obligation or other indebtedness of the County or a
multiple fiscal year direct or indirect debt or other financial obligation whatsoever of the
County, within the meaning of any constitutional or statutory debt provision or limitation.
No provision of the Certificates shall be construed or interpreted as creating a delegation
of governmental powers nor as a donation by or a lending of the credit of the County within
the meaning of Sections 1 or 2 of Article XI of the Colorado Constitution. The execution
and delivery of the Certificates shall not directly or indirectly obligate the County to renew
the Lease from Fiscal Year to Fiscal Year or to make any payments beyond those
appropriated for the County's then current Fiscal Year.
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Section 2.02 Forms,Denominations,Maturities and Other Terms of Certificates
(a) The Certificates shall be in substantially the form attached hereto as
Exhibit A and all provisions and terms of the Certificates set forth therein are incorporated
in this Indenture. The Certificates shall be issued, sold, and delivered hereunder for the
purpose of providing funds for the Project and paying the Costs of Execution and Delivery.
(b) The Certificates shall be executed and delivered in fully registered form in
Authorized Denominations not exceeding the aggregate principal amount stated to mature
on any given date. The Certificates shall be numbered consecutively in such manner as the
Trustee shall determine; provided that while the Certificates are held by a Depository, one
Certificate shall be executed and delivered for each maturity bearing interest at the same
interest rate of the Outstanding Certificates.
(c) The Certificates are executed and delivered under the authority of the
Supplemental Act and shall so recite. Pursuant to Section 11-57-210, C.R.S., such recital
shall be conclusive evidence of the validity and the regularity of the execution and delivery
of the Certificates after their delivery for value.
(d) The Certificates shall be dated August [ 1, 2021. The Certificates shall
mature on the dates and in the amounts, with interest thereon at the rates, set forth below:
Maturity Principal Interest
(December 1) Amount Rate
20 $
20
20
20
20
20
20
20
20
20
(e) The Certificates shall bear interest from their date to maturity or prior
redemption at the rates per annum set forth above, payable on each Interest Payment Date
and calculated on the basis of a 360-day year of twelve 30-day months.
(0 The payment of principal, premium, if any, and interest represented by the
Certificates shall be made in lawful money of the United States of America.
(g) The Certificates shall be subject to redemption prior to maturity, all as
provided in Article IV hereof.
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(h) Except for any Certificates for which DTC is acting as Depository or for an
Owner of$1,000,000 or more in aggregate principal amount of Certificates, the principal
of, premium, if any, and interest on all Certificates shall be payable to the Owner thereof
at its address last appearing on the registration books maintained by the Trustee. In the
case of any Certificates for which DTC is acting as Depository,the principal of, premium,
if any, and interest on such Certificates shall be payable as directed in writing by the
Depository. In the case of an Owner of$1,000,000 or more in aggregate principal amount
of Certificates, the principal of, premium, if any, and interest on such Certificates shall be
payable by wire transfer of funds to a bank account designated by the Certificate Owner in
written instructions to the Trustee.
(i) Interest shall be paid to the Owner of each Certificate, as shown on the
registration books kept by the Trustee, as of the close of business on the Regular Record
Date, irrespective of any transfer of ownership of Certificates subsequent to the Regular
Record Date and prior to such Interest Payment Date, or on a special record date, which
shall be fixed by the Trustee for such purpose, irrespective of any transfer of ownership of
Certificates subsequent to such special record date and prior to the date fixed by the Trustee
for the payment of such interest. Notice of the special record date and of the date fixed for
the payment of such interest shall be given by providing a copy thereof by electronic means
or by first-class mail postage prepaid at least ten days prior to the special record date, to
the Owner of each Certificate upon which interest will be paid, determined as of the close
of business on the day preceding the giving of such notice.
Section 2.03 Execution; Global Book-Entry System.
(a) Each Certificate shall be executed with the manual signature of a duly
authorized representative of the Trustee. It shall not be necessary that the same authorized
representative of the Trustee sign all of the Certificates executed and delivered hereunder.
In case any authorized representative of the Trustee whose signature appears on the
Certificates ceases to be such representative before delivery of the Certificates, such
signature shall nevertheless be valid and sufficient for all purposes, the same as if such
authorized representative had remained as such authorized representative until delivery.
(b) No Certificate shall be valid or obligatory for any purpose or entitled to any
security or benefit hereunder unless and until executed in the manner prescribed by this
Section, and such execution of any Certificate shall be conclusive evidence that such
Certificate has been properly executed and delivered hereunder.
(c) DTC may act as Depository for any Certificates. The Certificates for which
DTC is acting as Depository shall be initially executed and delivered as set forth herein
with a separate fully registered certificate (in printed or type-written form) for each of the
maturities bearing interest at the same interest rate of the Certificates. Upon initial
execution and delivery, the ownership of any Certificates for which DTC is acting as
Depository shall be registered in the registration books kept by the Trustee, in the name of
Cede&Co.,as the nominee of DTC or such other nominee as DTC shall appoint in writing.
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(d) The Trustee is hereby authorized to take any and all actions as may be
necessary and not inconsistent with this Indenture in order to qualify any Certificates for
the Depository's book-entry system, including the execution of the Depository's form of
Representation Letter.
(e) With respect to any Certificates which shall or may be registered in the
registration books kept by the Trustee in the name of Cede&Co.,as nominee of DTC,the
Trustee shall not have any responsibility or obligation to any DTC Participants or to any
Beneficial Owners. Without limiting the immediately preceding sentence,the Trustee shall
not have any responsibility or obligation with respect to (a)the accuracy of the records of
DTC, Cede & Co. or any DTC Participant with respect to any ownership interest in the
Certificates, (b) the delivery to any DTC Participant, any Beneficial Owner or any other
person, other than DTC, of any notice with respect to the Certificates, including any notice
of redemption, or (c) the payment to any DTC Participant, any Beneficial Owner or any
other person,other than DTC, of any amount with respect to the principal of and premium,
if any, or interest on the Certificates; except that so long as any Certificate is registered in
the name of Cede&Co., as nominee of DTC,any Beneficial Owner of$1,000,000 or more
in aggregate principal amount of Certificates who has filed a written request to receive
notices, containing such Beneficial Owner's name and address, with the Trustee shall be
provided with all notices relating to such Certificates by the Trustee.
(f) Except as set forth above,the Trustee may treat as and deem DTC to be the
absolute Owner of each Certificate for which DTC is acting as Depository for all purposes,
including payment of the principal of and premium and interest on such Certificate, giving
notices of redemption and registering transfers with respect to such Certificates. The
Trustee shall pay all principal of and interest on the Certificates only to or upon the order
of the Owners as shown on the registration books kept by the Trustee or their respective
attorneys duly authorized in writing and all such payments shall be valid and effective to
fully satisfy and discharge the obligations with respect to the principal of and interest on
the Certificates to the extent of the sum or sums so paid.
(g) No person other than an Owner, as shown on the registration books kept by
the Trustee, shall receive a Certificate.Upon delivery by DTC to the Beneficial Owner and
the Trustee, a written notice to the effect that DTC has determined to substitute a new
nominee in place of Cede & Co., and subject to the transfer provisions in Section 2.06
hereof,references to"Cede&Co."in this Section shall refer to such new nominee of DTC.
(h) DTC may determine to discontinue providing its services with respect to
any Certificates at any time after giving written notice to the Trustee and discharging its
responsibilities with respect thereto under applicable law. The Trustee, upon the written
direction of the County,may terminate the services of DTC with respect to any Certificates
if it determines that DTC is unable to discharge its responsibilities with respect to such
Certificates or that continuation of the system of book-entry transfers through DTC is not
in the best interests of the Beneficial Owners, and the Trustee shall provide notice of such
termination to the Trustee.
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(i) Upon the termination of the services of DTC as provided in the previous
paragraph, and if no substitute Depository willing to undertake the functions of DTC in
respect of the Certificates can be found which, in the opinion of the County is willing and
able to undertake such functions upon reasonable or customary terms, or if the County
determines that it is in the best interests of the Beneficial Owners of the Certificates that
they be able to obtain certificated Certificates,the Certificates shall no longer be restricted
to being registered in the registration books of the Trustee in the name of Cede & Co., as
nominee of DTC, but may be registered in whatever name or names the Owners shall
designate at that time, in accordance with Section 2.06. To the extent that the Beneficial
Owners are designated as the transferee by the Owners, in accordance with Section 2.06,
the Certificates will be delivered to the Beneficial Owners.
Section 2.04 Delivery of the Certificates. Upon the execution and delivery of this
Indenture,the Trustee is authorized to execute and deliver the Certificates either to DTC or to the
purchasers thereof in the aggregate principal amounts set forth in Section 2.01 hereof, as provided
in this Section:
(a) Before or upon the delivery by the Trustee of any of the Certificates, there
shall be filed with the Trustee an originally executed counterpart of this Indenture, the
Lease,the Site Lease, and a title insurance commitment(with a title insurance policy to be
delivered in a timely fashion after the delivery of the Certificates) under which the
Trustee's leasehold interest in the Leased Property are insured; and
(b) Thereupon,the Trustee shall execute and deliver the Certificates to DTC or
the purchasers thereof, upon payment to the Trustee of the purchase price set forth in the
Certificate Purchase Agreement. Notwithstanding anything herein to the contrary, the
Trustee is authorized to execute and transfer or cause to be transferred to DTC in advance
of the date of execution and delivery of the Certificates, Certificates to effect the
registration and delivery thereof to the Owners pending and subject to the delivery of the
opinion of Special Counsel necessary to effect the delivery of the Certificates.
Section 2.05 Mutilated, Lost, Stolen or Destroyed Certificates. In the event the
Certificates are in the hands of DTC or Owners and one or more of the Certificates is mutilated,
lost, stolen or destroyed, a new Certificate of the same series shall be executed by the Trustee, of
like date, maturity and denomination as that mutilated, lost, stolen or destroyed; provided that the
Trustee shall have received indemnity from DTC or the Owner of the Certificate, as the case may
be, satisfactory to it and provided further, in case of any mutilated Certificate,that such mutilated
Certificate shall first be surrendered to the Trustee, and in the case of any lost, stolen or destroyed
Certificate, that there shall be first furnished to the Trustee evidence of such loss, theft or
destruction satisfactory to the Trustee. In the event that any such Certificate shall have matured,
instead of executing and delivering a duplicate Certificate, the Trustee may pay the same without
surrender thereof. The Trustee may charge DTC or the Owner of the Certificate, as the case may
be, with its reasonable fees and expenses in connection herewith.
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Section 2.06 Registration of Certificates; Persons Treated as Owners; Transfer and
Exchange of Certificates.
(a) Books for the registration and for the transfer of Certificates shall be kept
by the Trustee which is hereby appointed the registrar. Upon surrender for transfer of any
Certificate at the principal corporate trust office of the Trustee or at such other location as
it shall designate, the Trustee shall execute and deliver in the name of the transferee or
transferees a new Certificate or Certificates of the same series,of a like aggregate principal
amount and interest rate and of the same maturity.
(b) Certificates may be exchanged at the principal corporate trust office of the
Trustee or at such other location as it shall designate for an equal aggregate principal
amount of Certificates of the same series, of the same maturity of other Authorized
Denominations. The Trustee shall execute and deliver Certificates which the Owner
making the exchange is entitled to receive, bearing numbers not contemporaneously
outstanding.
(c) All Certificates presented for transfer or exchange shall be accompanied by
a written instrument or instruments of transfer or authorization for exchange, in form and
with guaranty of signature satisfactory to the Trustee, duly executed by the Owner or by
his or her attorney duly authorized in writing.
(d) The Trustee shall not be required to transfer or exchange any Certificate
during the period of fifteen days next preceding any Interest Payment Date nor to transfer
or exchange any Certificate after the providing of notice calling such Certificate for
redemption has been made as herein provided, nor during the period of fifteen days next
preceding the providing of such notice of redemption.
(e) New Certificates delivered upon any transfer or exchange shall evidence the
same obligations as the Certificates surrendered, shall be secured by this Indenture and
entitled to all of the security and benefits hereof to the same extent as the Certificates
surrendered. The person in whose name any Certificate shall be registered shall be deemed
and regarded as the absolute Owner thereof for all purposes, and payment of or on account
of either principal or interest on any Certificate shall be made only to or upon the written
order of the Owner thereof or his, her or its legal representative, but such registration may
be changed as hereinabove provided. All such payments shall be valid and effectual to
satisfy and discharge such Certificate to the extent of the sum or sums paid.
(0 The Trustee shall require the payment, by any Owner requesting exchange
or transfer of Certificates, of any reasonable transfer fees, tax, fee or other governmental
charge required to be paid with respect to such exchange or transfer.
Section 2.07 Cancellation of Certificates. Whenever any outstanding Certificates shall
be delivered to the Trustee for cancellation pursuant to this Indenture,upon payment thereof or for
or after replacement pursuant to Sections 2.05 or 2.06 hereof, such Certificates shall be promptly
canceled and destroyed by the Trustee in accordance with customary practices of the Trustee and
applicable record retention requirements.
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Section 2.08 Additional Certificates.
(a) So long as no Event of Indenture Default, Event of Nonappropriation or
Event of Lease Default has occurred and is continuing and the Lease Term is in effect,one
or more series of Additional Certificates may be executed and delivered upon the terms
and conditions set forth herein. The principal of any Additional Certificates shall mature
on December 1 and interest payment dates therefore shall be the same as the interest
payment dates for the Certificates; otherwise the times and amounts of payment of
Additional Certificates shall be as provided in the supplemental resolution or indenture and
amendment to the Lease entered into in connection therewith.
(b) Additional Certificates may be executed and delivered without the consent
of or notice to the Owners of Outstanding Certificates, to provide moneys to pay any one
or more of the following:
(i) the costs of making, at any time or from time to time, such
substitutions, additions, modifications, and improvements for or to the Leased
Property as the County may deem necessary or desirable,and as in accordance with
the provisions of the Lease; or
(ii) for the purpose of refunding or refinancing all or any portion of
Outstanding Certificates.
In such case, the Costs of Execution and Delivery of the Additional
Certificates, the amount, if any, to be deposited to a separate reserve fund for such
Additional Certificates, and other costs reasonably related to the purposes for which
Additional Certificates are being executed and delivered may be included.
(c) Additional Certificates may be executed and delivered only upon there
being furnished to the Trustee:
(i) Originally executed counterparts of a supplemental Indenture and
related and necessary amendments to the Site Lease and the Lease (including any
necessary amendment to the Base Rentals Schedule); and
(ii) A commitment or other evidence that the amount of the title
insurance policy delivered in respect of the Certificates will be increased, if
necessary, to reflect the amount of the Additional Certificates and all other
Outstanding Certificates(or such lesser amount as shall be the maximum insurable
value of the real property included in the Leased Property); and
(iii) A written opinion of Special Counsel to the effect that:
(A) the execution and delivery of Additional Certificates have
been duly authorized and that all conditions precedent to the delivery
thereof have been fulfilled;
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(B) the excludability of interest from gross income for federal
income tax purposes on the Outstanding Certificates will not be adversely
affected by the execution and delivery of the Additional Certificates being
executed and delivered; and
(C) the sale, execution and delivery of the Additional
Certificates, in and of themselves, will not constitute an Event of Indenture
Default or an Event of Lease Default nor cause any violation of the
covenants or representations herein, in the Site Lease or in the Lease; and
(iv) Written directions from the underwriter or placement agent with
respect of the Additional Certificates,together with written acknowledgment of the
County, to the Trustee to deliver the Additional Certificates to the purchaser or
purchasers therein identified upon payment to the Trustee of a specified purchase
price.
(d) Each Additional Certificate executed and delivered pursuant to this Section
shall evidence a proportionate interest in the rights to receive the Revenues under this
Indenture and shall be ratably secured with all Outstanding Certificates and in respect of
all Revenues, and shall be ranked pari passu with such Outstanding Certificates and with
Additional Certificates that may be executed and delivered in the future, if any.
Section 2.09 Uniform Commercial Code; Negotiability. Subject to the registration
provisions hereof, the Certificates shall be fully negotiable and shall have all the qualities of
negotiable paper, and the Owner or Owners thereof shall possess all rights enjoyed by the holders
or owners of investment securities under the provisions of the Uniform Commercial Code-
Investment Securities. The principal of and interest on the Certificates shall be paid, and the
Certificates shall be transferable, free from and without regard to any equities, set-offs or cross-
claims between or among the County, the Trustee and the original or any intermediate Owner of
any Certificates.
ARTICLE III
REVENUES AND FUNDS
Section 3.01 Segregation and Disposition of Proceeds of the Certificates. The
proceeds of the Certificates (net of Underwriter's discount of$ ) shall be accounted
for as follows:
(a) $ shall be remitted to the County and applied to the costs of the
Project in accordance with this Indenture and the Tax Certificate; and
(b) $ shall be deposited in the Costs of Execution and Delivery
Fund and applied to the Costs of Execution and Delivery of the Lease,the Site Lease, and
the Certificates.
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Section 3.02 Application of Revenues and Other Moneys.
(a) All Base Rentals payable under the Lease and other Revenues shall be paid
directly to the Trustee. If the Trustee receives any other payments on account of the Lease,
the Trustee shall immediately deposit the same as provided below.
(b) Except as otherwise provided in the Lease, the Trustee shall deposit all
Revenues and any other payments received in respect of the Lease, immediately upon
receipt thereof, to the Base Rentals Fund in an amount required to cause the aggregate
amount on deposit therein to equal the amount then required to make the principal and
interest payments due on the Certificates on the next Interest Payment Date. In the event
that the Trustee receives Prepayments under the Lease, the Trustee shall apply such
Prepayments to the Optional Redemption of the Certificates or portions thereof in
accordance with Section 4.01 hereof.
Section 3.03 Base Rentals Fund.
(a) A special fund is hereby created and established with the Trustee
denominated as the "Eagle County, Colorado, Base Rentals Fund" (the "Base Rentals
Fund") which shall be used for the deposit of all Revenues, upon receipt thereof by the
Trustee,except as otherwise provided in the Lease. Moneys in the Base Rentals Fund shall
be used solely for the payment of the principal of and interest on the Certificates whether
on an Interest Payment Date, at maturity or upon prior redemption, except as provided in
Section 3.05 hereof.
(b) The Base Rentals Fund shall be in the custody of the Trustee. Base Rental
payments are due and payable to the Trustee on or before each May 15 and November 15
annually. The Trustee shall withdraw sufficient funds from the Base Rentals Fund to pay
the principal of and interest on the Certificates as the same become due and payable
whether on an Interest Payment Date, at maturity or upon prior redemption, which
responsibility,to the extent of the moneys therein, the Trustee hereby accepts.
(c) Any moneys held in the Base Rentals Fund shall be invested by the Trustee
in accordance with Article V hereof
Section 3.04 Reserved.
Section 3.05 Rebate Fund.
(a) A special fund is hereby created and established to be held by the Trustee,
and to be designated the "Eagle County, Colorado, Rebate Fund" (the "Rebate Fund").
To the extent necessary to comply with the provisions of the Tax Certificate,there shall be
deposited in the Rebate Fund investment income on moneys in any fund created hereunder
(except defeasance escrows). In addition to the deposit of investment income as provided
herein, there shall be deposited into the appropriate account in the Rebate Fund moneys
received from the County as Additional Rentals for rebate payments pursuant to the Lease;
moneys transferred to an account in the Rebate Fund from any other fund created hereunder
pursuant to the provisions of this Section 3.05;and all other moneys received by the Trustee
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when accompanied by directions not inconsistent with the Lease or this Indenture that such
moneys are to be paid into an account of the Rebate Fund. The County will cause(or direct
the Trustee to cause) amounts on deposit in the appropriate account in the Rebate Fund to
be forwarded to the United States Treasury at the address and times provided in the Tax
Certificate,and in the amounts calculated to ensure that the County's rebate obligations are
met, in accordance with the County's tax covenants in Section 10.04 of the Lease.
Amounts on deposit in the Rebate Fund shall not be subject to the lien of this Indenture to
the extent that such amounts are required to be paid to the United States Treasury.
(b) If, at any time after the Trustee receives instructions by the County to make
any payments from the Rebate Fund,the Trustee determines that the moneys on deposit in
an account of the Rebate Fund are insufficient for the purposes thereof, and if the Trustee
does not receive Additional Rentals or cannot transfer investment income so as to make
the amount on deposit in the appropriate account in the Rebate Fund sufficient for its
purpose,the Trustee may transfer moneys to an account in the Rebate Fund from the Base
Rentals Fund. Any moneys so advanced shall be included in the County's estimates of
Additional Rentals for the ensuing Fiscal Year pursuant to the Lease and shall be repaid to
the fund from which advanced upon payment to the Trustee of such Additional Rentals.
Upon receipt by the Trustee of an opinion of nationally recognized bond counsel to the
effect that the amount in an account of the Rebate Fund is in excess of the amount required
to be therein pursuant to the provisions of the Tax Certificate, such excess shall be
transferred to the Base Rentals Fund.
(c) The Trustee shall not be responsible for calculating rebate amounts or for
the adequacy or correctness of any rebate report. The County may, at its own expense,
retain an independent firm of professionals in such area to calculate such rebate amounts.
(d) Notwithstanding the foregoing, in the event that the Lease has been
terminated or the County has failed to comply with Section 10.04 thereof so as to make the
amount on deposit in the appropriate account in Rebate Fund sufficient for its purpose,the
Trustee shall make transfers of investment income or of moneys from the above-described
funds in such combination as the Trustee shall determine to be in the best interests of the
Certificate Owners.
Section 3.06 Costs of Execution and Delivery Fund.
(a) A special fund is hereby created and established with the Trustee and
denominated the "Costs of Execution and Delivery Fund." Upon the delivery of the
Certificates there shall be deposited into the Costs of Execution and Delivery Fund from
the proceeds of the Certificates the amount directed by Section 3.01(b) hereof. Payments
from the Costs of Execution and Delivery Fund shall be made by the Trustee at the direction
of the County in accordance with the closing memorandum prepared by the Underwriter,
which summarizes the approved costs of execution and delivery of the Certificates. .
(b) Any moneys held in the Costs of Execution and Delivery Fund shall be
invested by the Trustee in accordance with Article V hereof.
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(c) Upon the final payment of all Costs of Execution and Delivery, as certified
in writing by the County Representative, the Trustee shall transfer all moneys remaining
in the Costs of Execution and Delivery Fund to the County to be used to pay costs of the
Project, or shall credit such moneys to the Base Rentals Fund, as directed in writing by the
County Representative. Any amounts remaining in the Costs of Execution and Delivery
Fund ninety(90)days after the execution and delivery of the Certificates shall be credited
to the Base Rentals Fund or used to pay costs of the Project, as directed in writing by the
County Representative.
Section 3.07 Moneys to be Held in Trust. The ownership of the Base Rentals Fund,the
Costs of Execution and Delivery Fund, and all accounts within such funds and any other fund or
account created hereunder shall be held in trust by the Trustee for the benefit of the Owners of the
Certificates; provided that moneys in the Rebate Fund shall be used only for the specific purpose
provided in Section 3.05 hereof.
Section 3.08 Nonpresentment of Certificates. Any moneys deposited with the Trustee
pursuant to the terms of this Indenture to be used for the payment of principal of,premium, if any,
or interest on any of the Certificates and remaining unclaimed by the Owners of such Certificates
for a period of three years after the final due date of any Certificate(during which three year period
such moneys shall not be required to be invested by the Trustee),whether the final date of maturity
or the final redemption date, shall, upon the written request of the County, and if the County shall
not at the time,to the knowledge of the Trustee, be in default with respect to any of the terms and
conditions contained in this Indenture, in the Certificates,or under the Lease,be paid to the County
and such Owners shall thereafter look only to the County for payment and then only (a) to the
extent of the amounts so received by the County from the Trustee without interest thereon, (b)
subject to the defense of any applicable statute of limitations, and (c) subject to the County's
Appropriation of such payment. After payment by the Trustee of all of the foregoing, if any
moneys are then remaining under this Indenture,the Trustee shall pay such moneys to the County
as an overpayment of Base Rentals.
Section 3.09 Repayment to the County from the Trustee. After payment in full of the
Certificates, the interest thereon, any premium thereon, the fees, charges, and expenses of the
Trustee, any amount required to be deposited to the Rebate Fund, and all other amounts required
to be paid hereunder,any amounts remaining in the Base Rentals Fund,and the Costs of Execution
and Delivery Fund, or otherwise held by the Trustee pursuant hereto (but excluding the Rebate
Fund) shall be paid to the County upon the expiration or sooner termination of the Lease Term as
a return of an overpayment of Base Rentals. After payment of all amounts due and owing the
federal government held in the Rebate Fund, if any, any excess amounts in the Rebate Fund shall
be paid to the County.
ARTICLE IV
REDEMPTION OF CERTIFICATES
Section 4.01 Optional Redemption. The Certificates maturing on or prior to
December 1, 20[ 1 shall not be subject to optional redemption prior to their respective maturity
dates. The Certificates maturing on and after December 1, 20[ 1 shall be subject to redemption
prior to their respective maturity dates at the option of the County, in whole or in part, in integral
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multiples of$5,000, and if in part in such order of maturities as the County shall determine and by
lot within a maturity, on December 1, 20[ 1, and on any date thereafter, at a redemption price
equal to the principal amount of the Certificates so redeemed plus accrued interest to the
redemption date without a premium.
In the case of a prepayment in part of Base Rentals under the Lease, the Trustee shall
confirm that the revised Base Rentals Schedule to be provided by the County Representative
pursuant to Section 6.02(b)of the Lease sets forth Principal Portions and Interest Portions of Base
Rentals that are equal to the principal and interest due on the Certificates that remain Outstanding
after such Optional Redemption. For such confirmation,the Trustee may rely on a certification of
the County Representative or other person as provided in Section 8.07.
Section 4.02 Mandatory Sinking Fund Redemption.
(a) The Certificates maturing on December 1, 20[ 1 (hereinafter referred to
as"Term Certificates")are subject to mandatory sinking fund redemption at a price equal
to the principal amount thereof plus accrued interest thereon to the redemption date. Such
Certificates are to be selected by lot in such manner as the County shall determine(giving
proportionate weight to Certificates in denominations larger than$5,000).
(b) As and for a sinking fund for the redemption of the Term Certificates
maturing on December 1, 20[ 1, the County shall deposit in the Base Rentals Fund
moneys which are sufficient to redeem (after any credit as hereinafter provided) the
following principal amount of the Term Certificates maturing on December 1, 20[ 1:
Redemption Date
(December 1) Principal Amount
20 $
The remaining $ of the Term Certificates maturing on December 1,
20[ 1 shall be paid upon presentation and surrender at maturity.
(c) . On or before the 30th day prior to each such sinking fund payment date,the
Trustee shall proceed to call the Term Certificates indicated above(or any Term Certificate
or Certificates issued to replace such Term Certificates) for redemption from the sinking
fund on the next December 1 and give notice of such call without other instruction or notice
from the County. The amount of each sinking fund installment may be reduced by the
principal amount of any Term Certificates of the maturity and interest rate which are
subject to sinking fund redemption on such date and which prior to such date have been
redeemed(otherwise than through the operation of the sinking fund)or otherwise canceled
and not theretofore applied as a credit against a sinking fund installment. Such reductions,
if any, shall be applied in such year or years as may be determined by the County.
Section 4.03 Extraordinary Mandatory Redemption.
(a) If the Lease is terminated by reason of the occurrence of:
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(i) an Event of Nonappropriation, or
(ii) an Event of Lease Default, or
(iii) in the event that(A)the Leased Property is damaged or destroyed in
whole or in part by fire or other casualty, or (B) title to, or the temporary or
permanent use of, the Leased Property has been taken by eminent domain by any
governmental body, or (C) breach of warranty or any material defect with respect
to the Leased Property becomes apparent,or(D)title to or the use of all or any part
of the Leased Property is lost by reason of a defect in title thereto, and the Net
Proceeds of any insurance, performance bond, or condemnation award, or Net
Proceeds received as a consequence of defaults under contracts relating to the
Leased Property, made available by reason of such occurrences, shall be
insufficient to pay in full, the cost of repairing or replacing the Leased Property,
and the County does not appropriate sufficient funds for such purpose or cause the
Lease to be amended in order that Additional Certificates may be executed and
delivered pursuant to this Indenture for such purpose, the Certificates are required
to be called for redemption, except as hereinafter provided. If called for
redemption, as described herein, the Certificates are to be redeemed in whole on
such date or dates as the Trustee may determine, for a redemption price equal to the
principal amount thereof, plus accrued interest to the redemption date (subject to
the availability of funds as described below).
(b) If the Net Proceeds, including the Net Proceeds from the exercise of any
Lease Remedy under the Lease,otherwise received and other moneys then available under
this Indenture are insufficient to pay in full the principal of and accrued interest on all
Outstanding Certificates,the Trustee may, or at the request of the Owners of a majority in
aggregate principal amount of the Certificates Outstanding, and upon indemnification as
to fees, costs, and expenses as provided in this Indenture, without any further demand or
notice, shall exercise all or any combination of Lease Remedies as provided in the Lease
and the Certificates shall be redeemed by the Trustee from the Net Proceeds resulting from
the exercise of such Lease Remedies and all other moneys, if any,then on hand and being
held by the Trustee for the Owners of the Certificates.
(c) If the Net Proceeds resulting from the exercise of such Lease Remedies and
other moneys are insufficient to redeem the Certificates at 100% of the principal amount
thereof plus interest accrued to the redemption date,then such Net Proceeds resulting from
the exercise of such Lease Remedies and other moneys shall be allocated proportionately
among the Certificates,according to the principal amount thereof Outstanding. In the event
that such Net Proceeds resulting from the exercise of such Lease Remedies and other
moneys are in excess of the amount required to redeem the Certificates at 100% of the
principal amount thereof plus interest accrued to the redemption date, then such excess
moneys shall be paid to the County as an overpayment of the Purchase Option Price. Prior
to any distribution of the Net Proceeds resulting from the exercise of any of such remedies,
the Trustee shall be entitled to payment of its reasonable and customary fees for all services
rendered in connection with such disposition, as well as reimbursement for all reasonable
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costs and expenses, including attorneys' fees, incurred thereby, from proceeds resulting
from the exercise of such Lease Remedies and other moneys.
(d) IF THE CERTIFICATES ARE REDEEMED PURSUANT TO THIS
SECTION FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL
AMOUNT THEREOF PLUS INTEREST ACCRUED TO THE REDEMPTION DATE,
SUCH PARTIAL PAYMENT SHALL BE DEEMED TO CONSTITUTE A
REDEMPTION IN FULL OF THE RELATED CERTIFICATES, AND UPON SUCH A
PARTIAL PAYMENT NO OWNER OF SUCH CERTIFICATES, INCLUDING THE
CERTIFICATES, SHALL HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST
THE TRUSTEE OR THE COUNTY.
(e) Notwithstanding the foregoing or any other provisions to the contrary in the
Lease or this Indenture, if the Net Proceeds resulting from the exercise of such Lease
Remedies are insufficient to redeem the Certificates at 100% of the principal amount
thereof plus interest accrued to the redemption date, the Trustee may, or at the request of
the Owners of a majority in aggregate principal amount of the Certificates Outstanding,
and upon indemnification as to fees, costs, and expenses as provided in this Indenture,
shall, determine that the Certificates shall not be subject to extraordinary mandatory
redemption under this Section, in which event the Trustee will not apply any Net Proceeds
or other available moneys to the redemption of any Certificates prior to their respective
maturity dates. In such event, the Trustee shall (i) allocate such Net Proceeds (together
with any other available moneys held under this Indenture), proportionately among all
Outstanding Certificates, and (ii) apply such allocation of Net Proceeds to the payment of
the principal of and interest on the Certificates on the regularly scheduled maturity and
Interest Payment Dates of the Certificates.
Section 4.04 Partial Redemption.
(a) The Certificates shall be redeemed only in integral multiples of$5,000. The
Trustee shall treat any Certificate of denomination greater than$5,000 as representing that
number of separate Certificates each of the denomination of$5,000 as can be obtained by
dividing the actual principal amount of such Certificate by$5,000.
(b) Upon surrender of any Certificate for redemption in part, the Trustee shall
execute and deliver to the Owner thereof, at no expense of the Owner, a new Certificate or
Certificates of Authorized Denominations in an aggregate principal amount equal to the
unredeemed portion of the Certificates so surrendered.
Section 4.05 Notice of Redemption.
(a) Whenever Certificates are to be redeemed under any provision of this
Indenture, the Trustee shall, not less than thirty and not more than sixty days prior to the
redemption date (except for Extraordinary Mandatory Redemption under Section 4.03,
which notice shall be immediate), send notice of redemption to all Owners of all
Certificates to be redeemed by electronic means or by mail at their registered addresses,by
first class mail, postage prepaid, or in the event that the Certificates to be redeemed are
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registered in the name of the Depository, such notice may, in the alternative, be given by
electronic means in accordance with the requirements of the Depository. In addition, the
Trustee shall at all reasonable times make available to the County and any Certificate
Owner, including the Depository, if applicable, information as to Certificates which have
been redeemed or called for redemption. Any notice of redemption shall:
(i) identify the Certificates to be redeemed;
(ii) specify the redemption date and the redemption price;
(iii) in the event the redemption is occurring under Section 4.01 hereof,
state that the County has given notice of its intent to exercise its option to purchase
or prepay Base Rentals under the Lease;
(iv) state that such redemption is subject to the deposit of the funds
related to such option by the County on or before the stated redemption date; and
(v) state that on the redemption date the Certificates called for
redemption will be payable at the principal corporate trust office of the Trustee and
that from that date interest will cease to accrue.
(b) The Trustee may use "CUSIP" numbers in notices of redemption as a
convenience to Certificate Owners, provided that any such notice shall state that no
representation is made as to the correctness of such numbers either as printed on the
Certificates or as contained in any notice of redemption and that reliance may be placed
only on the identification numbers containing the prefix established pursuant to this
Indenture.
(c) Any notice of redemption may contain a statement that the redemption is
conditioned upon the receipt by the Trustee of funds on or before the date fixed for
redemption sufficient to pay the redemption price of the Certificates so called for
redemption, and that if such funds are not available, such redemption shall be canceled by
written notice to the Owners of the Certificates called for redemption in the same manner
as the original redemption notice was given.
Section 4.06 Redemption Payments. On or prior to the date fixed for redemption,funds
shall be deposited with the Trustee to pay the Certificates called for redemption, together with
accrued interest thereon to the redemption date, and any required premium. Upon the giving of
notice and the deposit of such funds as may be available for redemption pursuant to this Indenture
(which, in certain cases as set forth above may be less than the full principal amount of the
Outstanding Certificates and accrued interest thereon to the redemption date), interest on the
Certificates or portions thereof thus called shall no longer accrue after the date fixed for
redemption. Payments in full redemption shall be accompanied by a written designation prepared
by the Trustee stating the portions of the payment representing principal, interest, and premium, if
any.
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ARTICLE V
INVESTMENTS
Section 5.01 Investment of Moneys.
(a) The Trustee shall be entitled to assume that any investment, which at the
time of purchase is a Permitted Investment,remains a Permitted Investment absent a receipt
of written notice or information to the contrary. All moneys held as part of the Base Rentals
Fund, the Rebate Fund, the Costs of Execution and Delivery Fund, or any other fund or
account created hereunder(other than any defeasance escrow accounts) shall be deposited
or invested and reinvested by the Trustee, at the written direction of the County, in
Permitted Investments; provided, however, that the Trustee shall make no deposits or
investments of any fund or account created hereunder which shall interfere with or prevent
withdrawals for the purpose for which the moneys so deposited or invested were placed in
trust hereunder or for payment of the Certificates at or before maturity or interest thereon
as required hereunder. The Trustee may make any and all such deposits or investments
through its own investment department or that of its affiliates or subsidiaries and may
charge its ordinary and customary fees for such trades including cash sweep account fees.
Except as otherwise provided in Section 3.05 hereof, deposits or investments shall at all
times be a part of the fund or account from which the moneys used to acquire such deposits
or investments shall have come,and all income and profits on such deposits or investments
shall be credited to,and losses thereon shall be charged against, such fund or account. Any
interest or other gain from any fund or account created hereunder (except defeasance
escrows) shall be deposited to the Rebate Fund to the extent required and permitted
pursuant to Section 3.05 hereof. The Trustee shall sell and reduce to cash a sufficient
amount of such deposits or investments whenever the cash balance in the Base Rentals
Fund is insufficient to pay the principal of and interest on the Certificates when due, or
whenever the cash balance in any fund or account created hereunder is insufficient to
satisfy the purposes of such fund or account.
(b) If the Trustee is not provided with written directions concerning investment
of moneys held in the Funds and Account, the Trustee may invest in any money market
mutual fund that is a Permitted Investment, provided they mature or are subject to
redemption prior to the date such funds will be needed. Unless otherwise confirmed or
directed in writing, an account statement delivered periodically by the Trustee to the
County shall confirm that the investment transactions identified therein accurately reflect
the investment directions of the County, unless the County notifies the Trustee in writing
to the contrary within 30 days of the date of such statement. The Trustee is specifically
authorized to purchase or invest in shares of any investment company that(i) is registered
under the Investment Company Act of 1940, as amended (including both corporations and
Massachusetts business trusts,and including companies for which the Trustee may provide
advisory, administrative, custodial, or other services for compensation), (ii) invests
substantially all of its assets in short-term high-quality money-market instruments, limited
to obligations issued or guaranteed by the United States,and(iii)maintains a constant asset
value per share. The Trustee is specifically authorized to implement its automated cash
investments system to assure that cash on hand is invested and to charge reasonable cash
management fees,which may be deducted from income earned on investments.
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(c) The Trustee hereby agrees to secure and retain the documentation with
respect to investments of moneys in the funds and accounts created under this Indenture as
required by and as described in the Tax Certificate.
(d) The Trustee shall have no liability or responsibility for any loss or for failure
to maximize earnings resulting from any investment made in accordance with the
provisions of this Article V.
(e) The Trustee may transfer investments from any Fund or Account to any
other Fund or Account in lieu of cash when a transfer is required or permitted by the
provisions of this Indenture.
Section 5.02 Method of Valuation and Frequency of Valuation. In computing the
amount in any fund or account(except defeasance escrows),Permitted Investments shall be valued
at the market price, exclusive of accrued interest. With respect to all funds and accounts (except
defeasance escrows, and except as otherwise provided in the Tax Certificate with respect to the
Rebate Fund), valuation shall occur as of December 31 of each year. The County, at the written
request of the Trustee, shall calculate the value of investments in all funds and accounts held
pursuant to this Indenture.
ARTICLE VI
DEFEASANCE AND DISCHARGE
Section 6.01 Defeasance and Discharge.
(a) When the principal or redemption price(as the case may be)of,and interest
on, all the Certificates executed and delivered hereunder have been paid or provision has
been made for payment of the same (or, in the case of redemption of the Certificates
pursuant to Section 4.03 of this Indenture, if full or partial payment of the Certificates and
interest thereon is made as provided in Section 4.03 of this Indenture), and all other sums
payable hereunder relating to the Certificates,then the right,title,and interest of the Trustee
in and to the Trust Estate and all covenants, agreements, and other obligations of the
Trustee to the Owners shall thereupon cease,terminate,and become void and be discharged
and satisfied. In such event, the Trustee shall (i) release the Site Lease and transfer and
convey the Trustee's leasehold interest in the Leased Property to the County as provided
by Article XI of the Lease, (ii) release the Lease and this Indenture, (iii) execute such
documents to evidence such releases as may be reasonably required by the County, and
(iv)turn over to the County all balances then held by the Trustee in the Funds or Accounts
hereunder except for amounts held in the Rebate Fund or in any defeasance escrow
accounts. If payment or provision therefor is made with respect to less than all of the
Certificates,the particular Certificates(or portion thereof)for which provision for payment
shall have been considered made shall be selected by the County.
(b) Provision for the payment of all or a portion of the Certificates shall be
deemed to have been made when the Trustee holds in the Base Rentals Fund, or there is on
deposit in a separate escrow account or trust account held by a trust bank or escrow agent,
either moneys in an amount which shall be sufficient, and/or Federal Securities, the
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principal of and the interest on which when due,and without any reinvestment thereof,will
provide moneys which, together with the moneys, if any, concurrently deposited in trust,
shall be sufficient to pay when due the principal of, premium, if any, and interest due and
to become due on said Certificates on and prior to the redemption date or maturity date
thereof,as the case may be. Prior to any discharge of this Indenture pursuant to this Section
or the defeasance of any Certificates pursuant to this Section becoming effective, there
shall have been delivered to the Trustee a report of an independent firm of nationally
recognized certified public accountants verifying the sufficiency of the escrow established
to pay the applicable Certificates in full on the maturity or redemption date thereof unless
fully funded with cash.
(c) Neither the Federal Securities nor the moneys deposited in the Base Rentals
Fund or separate escrow account or trust account pursuant to this Section shall be
withdrawn or used for any purpose other than,and shall be segregated and held in trust for,
the payment of the principal of,premium, if any,and interest on the Certificates or portions
thereof; provided, however, that other Federal Securities and moneys may be substituted
for the Federal Securities and moneys so deposited prior to their use for such purpose.
(d) Whenever moneys or Federal Securities shall be deposited with the Trustee
or a separate escrow agent for the payment or redemption of any Certificates more than 45
days prior to the date that such Certificates are to mature or be redeemed,the Trustee shall
mail a notice stating that such moneys or Federal Securities have been deposited and
identifying the Certificates for the payment of which such moneys or Federal Securities are
being held,to all Owners of Certificates for the payment of which such moneys or Federal
Securities are being held, or if such Certificates are registered in the name of the
Depository, such notice may be sent, in the alternative, by electronic means in accordance
with the regulations of the Depository.
(e) To accomplish defeasance of all of the Certificates under this Indenture,
there shall be delivered to the Trustee (i) a report of an independent firm of nationally
recognized certified public accountants ("Accountant") verifying the sufficiency of the
escrow established to pay the Certificates in full on the maturity or redemption date
("Verification Report"),(ii)an escrow deposit agreement,and(iii)a certificate of discharge
of the Trustee with respect to the Certificates.
(f) At such time as any Certificate shall be deemed paid as provided in (b)
above, such Certificate shall no longer be secured by or entitled to the benefits of this
Indenture,the Lease,or the Site Lease,except for the purpose of exchange and transfer and
any payment from such cash or Federal Securities deposited with the Trustee.
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ARTICLE VII
EVENTS OF INDENTURE DEFAULT AND REMEDIES
Section 7.01 Events of Indenture Default. Each of the following shall be an Event of
Indenture Default:
(a) Failure to pay the principal of or premium, if any, on any Certificate when
the same shall become due and payable, whether at the stated maturity thereof or upon
proceedings for redemption;
(b) Failure to pay any installment of interest on any Certificate when the same
shall become due and payable;
(c) the occurrence of an Event of Nonappropriation; or
(d) the occurrence of an Event of Lease Default.
Upon the occurrence of any Event of Indenture Default, of which the Trustee is required
to take notice by Section 8.05 hereof, or if notice of an Event of Indenture Default is given as
provided in Section 8.05, the Trustee shall give notice thereof to the Owners of the Certificates,
unless such Event of Indenture Default has been cured or waived. The Trustee shall waive any
Event of Nonappropriation which is cured by the County within 30 days of the receipt of notice
by the Trustee as provided by Section 4.03 of the Lease, 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. The Trustee may waive any Event of Nonappropriation which is
cured by the County within a reasonable time with the procedure described in the preceding
sentence.
Section 7.02 Remedies. If any Event of Indenture Default occurs and is continuing,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 this Indenture, including reasonable attorney fees and expenses,without any further demand or
notice,enforce for the benefit of the Owners of the Certificates each and every right of the Trustee
as the lessee under the Site Lease and the lessor under the Lease. In exercising such rights of the
Trustee and the rights given the Trustee under this Article VII and Article VIII, 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 this Indenture,
take such action as, in the judgment of the Trustee with the advice of counsel, would best serve
the interests of the Owners of the Certificates, including calling the Certificates for redemption
prior to their maturity in the manner and subject to the provisions of Section 4.05 hereof and
exercising the Lease Remedies provided in the Lease; provided, however, that such action shall
not include consequential or punitive damages against the County.
Section 7.03 Legal Proceedings by Trustee. If any Event of Indenture Default has
occurred and is continuing, the Trustee in its discretion may, and upon the written request of the
Owners of a majority in aggregate principal amount of all Outstanding Certificates and receipt of
indemnity to its satisfaction, shall, in its capacity of Trustee hereunder:
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(a) By mandamus, or other suit, action or proceeding at law or in equity,
enforce all rights of the Owners of the Certificates, including enforcing any rights of the
Trustee in respect of the Trustee's leasehold interests in the Leased Property including its
rights as lessor under the Lease and as lessee under the Site Lease and its rights under this
Indenture and to enforce the provisions of this Indenture and any collateral rights hereunder
for the benefit of the Owners of the Certificates; or
(b) By action or suit in equity enjoin any acts or things which may be unlawful
or in violation of the rights of the Owners of Certificates; or
(c) Take any other action at law or in equity that may appear necessary or
desirable to enforce the rights of the Owners of Certificates.
Section 7.04 Discontinuance of Proceedings by Trustee. If any proceeding
commenced by the Trustee on account of any Event of Indenture Default is discontinued or is
determined adversely to the Trustee, then the Trustee and the Owners of Certificates shall be
restored to their former positions and rights hereunder as though no such proceeding had been
commenced.
Section 7.05 Owners of Certificates May Direct Proceedings. The Owners of a
majority in aggregate principal amount of Outstanding Certificates shall have the right, after
furnishing indemnity satisfactory to the Trustee, to direct the method and place of conducting all
remedial proceedings by the Trustee hereunder,provided that such direction shall not be in conflict
with any rule of law or with this Indenture or unduly prejudice the rights of minority Owners of
Certificates.
Section 7.06 Limitations on Actions by Owners of Certificates. No Owner of
Certificates shall have any right to pursue any remedy hereunder unless:
(a) the Trustee shall have been given written notice of an Event of Indenture
Default;
(b) the Owners of at least a majority in aggregate principal amount of all
Outstanding Certificates shall have requested the Trustee,in writing,to exercise the powers
hereinabove granted to or pursue such remedy in its or their name or names;
(c) the Trustee shall have been offered indemnity satisfactory to it against fees,
costs, expenses and liabilities, including reasonable attorney fees and expenses; and
(d) the Trustee shall have failed to comply with such request within a
reasonable time.
Notwithstanding the foregoing provisions of this Section or any other provision of this
Indenture, the obligation of the Trustee shall be absolute and unconditional to pay hereunder, but
solely from the Revenues pledged under this Indenture, the principal of, premium, if any, and
interest on the Certificates to the respective Owners thereof on the respective due dates thereof,
and nothing herein shall affect or impair the right of action, which is absolute and unconditional,
of such Owners to enforce such payment.
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Section 7.07 Trustee May Enforce Rights Without Possession of Certificates. All
rights under this Indenture and the Certificates may be enforced by the Trustee without the
possession of any Certificates or the production thereof at the trial or other proceedings relative
thereto, and any proceeding instituted by the Trustee shall be brought in its name for the ratable
benefit of the Owners of the Certificates.
Section 7.08 Remedies Not Exclusive. Subject to any express limitations contained
herein, no remedy herein conferred is intended to be exclusive of any other remedy or remedies,
and each remedy is in addition to every other remedy given hereunder or now or hereafter existing
at law or in equity or by statute.
Section 7.09 Delays and Omissions Not to Impair Rights; No Waiver of One Default
to Affect Another.
(a) No delays or omissions in respect of exercising any right or power accruing
upon any default shall impair such right or power or be a waiver of such default, and every
remedy given by this Article VII may be exercised from time to time and as often as may
be deemed expedient.
(b) No waiver of any default hereunder, whether by the Trustee or the Owners
of the Certificates, shall extend to or affect any subsequent or any other then existing
default or shall impair any rights or remedies consequent thereon.
Section 7.10 Application of Moneys in Event of Indenture Default. Any moneys
received, collected, or held by the Trustee following an Event of Indenture Default and any other
moneys held as part of the Trust Estate (except for moneys held in the Rebate Fund or any other
defeasance escrow account) shall be applied in the following order:
(a) To the payment of the reasonable costs and expenses of the proceedings
resulting in the collection of such moneys and of all the fees, costs, expenses, liabilities
and advances incurred or made by the Trustee, including, but not limited to, its counsel
fees and expenses, and disbursements of the Trustee, and the payment of its reasonable
compensation and any advances, including any amounts remaining unpaid;
(b) To the payment of interest then owing on the Certificates, and in case such
moneys shall be insufficient to pay the same in full,then to the payment of interest ratably,
without preference or priority of one Certificate over another or of any installment of
interest over any other installment of interest;
(c) To the payment of principal or redemption price (as the case may be) then
owing on the Certificates, and in case such moneys shall be insufficient to pay the same in
full, then to the payment of principal or redemption price ratably, without preference or
priority of one Certificate over another; and
(d) The surplus, if any, shall be paid to the County.
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ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01 Duties of the Trustee.
(a) The Trustee hereby accepts the provisions of the Site Lease, the Lease and
this Indenture and accepts the trusts imposed upon it by this Indenture and agrees to
perform said trusts, but only upon and subject to the express terms and conditions set forth
in the Site Lease, the Lease and this Indenture, and no implied covenants or obligations
shall be read into this Indenture, the Lease, or the Site Lease against the Trustee.
(b) The Trustee hereby covenants for the benefit of the Owners of the
Certificates that the Trustee will observe and comply with its obligations under the Site
Lease,the Lease and this Indenture.
(c) The Trustee shall at all times, to the extent permitted by law, defend,
preserve and protect its interest in the Leased Property and the other property or property
rights included in the Trust Estate and all the rights of the Owners under this Indenture
against all claims and demands of all Persons whomsoever.
(d) Before taking any action hereunder or under the Lease or the Site Lease,the
Trustee may require that satisfactory indemnity be furnished to it for the reimbursement of
all costs and expenses (including reasonable attorney's fees and expenses) which it may
incur and to protect it against all liability, including,but not limited to,any liability arising
directly or indirectly under any federal, state or local statute,rule, law or resolution related
to the protection of the environment or hazardous substances, except liability which is
adjudicated to have resulted from its negligence or willful default, by reason of any action
so taken.
Section 8.02 Liability of Trustee; Trustee's Use of Agents.
(a) The Trustee may exercise any powers under this Indenture and perform any
duties required of it through attorneys, agents, officers, receivers or employees, and shall
be entitled to the advice or opinion of counsel concerning all matters involving the
Trustee's duties hereunder. The Trustee may act upon the opinion or advice of any attorney
engaged by the Trustee in the exercise of reasonable care without liability for any loss or
damage resulting from any action or omission taken in good faith reliance upon that
opinion or advice.
(b) The permissive right of the Trustee to do things enumerated in this
Indenture shall not be construed as a duty and the Trustee shall not be answerable for other
than its negligence or willful misconduct and shall not be answerable for any negligent act
of its attorneys,agents,or receivers which have been selected by the Trustee with due care.
(c) The Trustee shall not be personally liable for any debts contracted or for
damages to persons or to personal property injured or damaged, or for salaries or
nonfulfillment of contracts during any period in which it may be in possession of or
managing the Leased Property.
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•
(d) The Trustee shall not be liable for actions taken at the direction of Owners
pursuant to the provisions of Article VII.
(e) Any person hired by the Trustee to enforce Lease Remedies shall be
considered the Trustee's agent for the purposes of this Section.
(f) The Trustee shall not be responsible for any recital herein or in the
Certificates(except in respect to the execution of the Certificates on behalf of the Trustee),
or for the recording or rerecording, filing or refiling of the Site Lease, the Lease or this
Indenture or of any supplements thereto or hereto or instruments of further assurance or
any financing statements (other than continuation statements) in connection therewith, or
for insuring the Leased Property,or collecting any insurance moneys,or for the sufficiency
of the security for the Certificates executed and delivered hereunder or intended to be
secured hereby, or for the value of or title to the Leased Property, and the Trustee shall not
be bound to ascertain or inquire as to the performance or observance of any covenants,
conditions or agreements on the part of the County, except as provided herein; but the
Trustee may require of the County full information and advice as to the performance of
the covenants, conditions and agreements aforesaid. The Trustee shall have no obligation
to perform any of the duties of the County under the Site Lease or the Lease;and the Trustee
shall not be responsible or liable for any loss suffered in connection with any investment
of funds made by it in accordance with this Indenture.
(g) The Trustee makes no representations as to the value or condition of the
Trust Estate or any part thereof, or as to the validity or sufficiency of this Indenture or of
the Certificates. The Trustee shall not be accountable for the use or application of any
Certificates or the proceeds thereof or of any money paid to or upon the order of the County
under any provision of this Indenture, the Lease or the Site Lease. The Trustee shall not
be accountable for the use of any proceeds of any Certificates authenticated and delivered
to the Underwriter hereunder.
(h) As to the existence or nonexistence of any fact or as to the sufficiency or
validity of any instrument, paper, or proceeding or whenever in the administration of this
Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee shall be entitled to
conclusively rely and be protected in acting or refraining from acting upon any resolution,
certificate, statement, opinion, report, or other paper or document signed on behalf of the
County by the County Representative or such other person as may be designated for such
purpose by resolution of the Board, as sufficient evidence of the facts therein contained,
but may at its discretion secure such further evidence deemed necessary or advisable, but
shall in no case be bound to secure the same.
(i) All moneys received by the Trustee shall, until used or applied or invested
as herein provided,be held in trust in the manner and for the purposes for which they were
received but need not be segregated from other funds except to the extent required by this
Indenture or law. The Trustee shall not be under any liability for interest on any moneys
received hereunder except that the Trustee is responsible for investing moneys in funds
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held hereunder in compliance with the provisions of the Tax Certificate, and complying
with the written investment direction of the County.
(j) The Trustee shall not be required to give any bond or surety in respect of
the execution of the said trusts and powers or otherwise in respect of the premises.
(k) Notwithstanding anything in this Indenture contained, the Trustee shall
have the right,but shall not be required,to demand in respect of the execution and delivery
of any Certificates, the withdrawal of any cash, or any action whatsoever within the
purview of this Indenture, any showings, certificates, opinions, appraisals or other
information,or corporate action or evidence thereof, in addition to that by the terms hereof
required, as a condition of such action by the Trustee deemed desirable for the purpose of
establishing the right of the County to the execution and delivery of any Certificates, the
withdrawal of any cash, or the taking of any other action by the Trustee.
(l) Notwithstanding any other provision hereof, the Trustee shall not be
required to advance any of its own funds in the performance of its obligations hereunder
or any other documents related to this Indenture unless it has received assurances from the
Owners of the Certificates or indemnity from the Owners of the Certificates satisfactory to
it that it will be repaid. The Trustee shall not be required to give any bond or surety in
respect to the execution of its trusts and powers hereunder.
(m) The Trustee shall have no responsibility with respect to any information,
statement or recital in any official statement, offering memorandum or other disclosure
material prepared or distributed with respect to the Certificates except to the extent that
such statement was provided by the Trustee or describes the Trustee's duties under this
Indenture.
(n) The Trustee is authorized and directed to enter into the Site Lease and the
Lease, solely in its capacity as Trustee under this Indenture.
(o) The Trustee shall not be required to take notice or be deemed to have notice
of any default hereunder except failure to be made of any of the payments to the Trustee
required to be made hereby, unless the Trustee shall be specifically notified in writing of
such default by the County or by the Owners of at least 25%in aggregate principal amount
of Certificates then Outstanding. All notices or other instruments required by this
Indenture to be delivered to the Trustee must, in order to be effective, be delivered at the
principal corporate trust office of the Trustee, and in the absence of such notice so
delivered,the Trustee may conclusively assume there is no default except as aforesaid.
Section 8.03 Representations and Covenants of Trustee. The Trustee represents,
warrants 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 the 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)the Lease or the Site Lease, (ii)
the Base Rentals, other Revenues and collateral, security interests and attendant rights and
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obligations which may be derived under the Lease or the Site Lease and/or(iii)the Leased
Property and any reversion therein or any of the Trustee's other rights under the Lease or
the Site Lease or assign, pledge, mortgage, encumber or grant a security interest in the
Trustee's right,title and interest in, to and under the Lease or the Site Lease or the Leased
Property except for Permitted Encumbrances.
(b) Neither the execution and delivery of the Lease and the Site Lease or this
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 the Lease and the Site Lease
or to execute this Indenture, and perform its obligations thereunder or hereunder, except
such litigation or proceeding as has been disclosed in writing to the County on or prior to
the date this Indenture is executed and delivered.
(d) The Trustee covenants and agrees to comply with any applicable
requirements for the Trustee set forth in the Tax Certificate as directed by the County.
Section 8.04 Compensation. The Trustee shall be entitled to payment and
reimbursement for its reasonable fees and expenses for its ordinary services rendered hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) and all advances, agent and counsel fees and expenses for its
services rendered hereunder as and when the same become due and all expenses reasonably and
necessarily made or incurred by the Trustee in connection with such services as and when the same
become due,as provided in Section 6.04 of the Lease. In the event that it should become necessary
for the Trustee to perform extraordinary services, the Trustee shall be entitled to reasonable
additional compensation therefor and to reimbursement for reasonable and necessary extraordinary
expenses in connection therewith; provided that if such extraordinary services or extraordinary
expenses are occasioned by the negligence or willful misconduct of the Trustee it shall not be
entitled to compensation or reimbursement therefor. The Trustee shall be entitled to payment and
reimbursement of the reasonable fees and charges of the Trustee as paying agent and as registrar
for the Certificates, as provided in Section 6.04 of the Lease.
Section 8.05 Notice of Default; Right to Investigate. The Trustee shall, within thirty
days after it receives notice thereof, give written notice by first class mail to the Owners of the
Certificates of all Events of Indenture Default known to the Trustee, or in the event that the
Certificates to be redeemed are registered in the name of the Depository, such notice may, in the
alternative, be given by electronic means in accordance with the requirements of the Depository,
and send a copy of such notice to the County, unless such defaults have been remedied. The
Trustee shall not be deemed to have notice of any Event of Indenture Default unless it has actual
knowledge thereof or has been notified in writing of such Event of Indenture Default by the County
or the Owners of at least 25% in aggregate principal amount of the Outstanding Certificates. The
Trustee may, however, at any time request the County to provide full information as to the
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performance of any covenant under the Lease; and, if information satisfactory to it is not
forthcoming, the Trustee may make or cause to be made an investigation into any matter related
to the Site Lease, the Lease, and the Leased Property.
Section 8.06 Obligation to Act on Defaults. If any Event of Indenture Default shall
have occurred and be continuing of which the Trustee has actual knowledge or notice,the Trustee
shall exercise such of the rights and remedies vested in it by this Indenture and shall use the same
degree of care in their exercise as a prudent person would exercise or use in the circumstances in
the conduct of his or her own affairs in exercising any rights or remedies or performing any of its
duties hereunder; provided, that if in the opinion of the Trustee such action may tend to involve
extraordinary expense or liability, it shall not be obligated to take such action unless it is furnished
with indemnity satisfactory to it.
Section 8.07 Reliance on Requisition,etc.
(a) The Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any written requisition, resolution, notice, telegram, request,
consent,waiver,certificate,statement,affidavit,voucher,bond,or other paper or document
which it in good faith believes to be genuine and to have been passed or signed by the
proper persons or to have been prepared and furnished pursuant to any of the provisions of
this Indenture; and the Trustee shall be under no duty to make any investigation as to any
statement contained in any such instrument, but may accept the same as conclusive
evidence of the accuracy of such statement.The Trustee may rely conclusively on any such
certificate or other document and shall not be required to make any independent
investigation in connection therewith.
(b) The Trustee shall be entitled to conclusively rely upon advice or opinions
of Counsel and shall not be responsible for any loss or damage resulting from reliance in
good faith thereon, except for its own negligence or willful misconduct.
(c) Any action taken by the Trustee pursuant to this Indenture upon the request
or authority or consent of any person who, at the time of making such request or giving
such authority or consent is the Owner of any Certificate, shall be conclusive and binding
upon all future Owners of the same Certificate and upon Certificates delivered in exchange
therefor or upon transfer or in substitution thereof.
Section 8.08 Trustee May Own Certificates. The Trustee, in its individual or any other
capacity, may in good faith buy, sell, own and hold any of the Certificates and may join in any
action which any Owner may be entitled to take with like effect as if the Trustee were not the party
to this Indenture. The Trustee may also engage in or be interested in any financial or other
transaction with the County provided that if the Trustee determines that any such relation is in
conflict with its duties under this Indenture, it shall eliminate the conflict or resign as Trustee.
Section 8.09 Construction of Ambiguous Provisions. The Trustee may construe any
ambiguous or inconsistent provisions of this Indenture, and any such construction by the Trustee
shall be binding upon the Owners. In construing any such provision, the Trustee will be entitled
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to rely upon opinions of Counsel and will not be responsible for any loss or damage resulting from
reliance in good faith thereon, except for its own negligence or misconduct.
Section 8.10 Resignation of Trustee. The Trustee may resign and be discharged of the
trusts created by this Indenture by written resignation filed with the County not less than sixty days
before the date when it is to take effect;provided notice of such resignation is mailed by registered
or certified mail to the Owner of each Outstanding Certificate at the address shown on the
registration books. Such resignation shall take effect only upon the appointment of a successor
Trustee. If no successor Trustee is appointed within sixty days following the date designated for
the resignation of the Trustee, the resigning Trustee may petition to a court of competent
jurisdiction to appoint a successor Trustee. The rights of the Trustee to be held harmless, to
insurance proceeds, or to other amounts due arising prior to the date of such resignation shall
survive resignation.
Section 8.11 Removal of Trustee. Any Trustee hereunder may be removed at any time,
after payment of all outstanding fees and expenses of the Trustee being so removed, by the County
or by the Owners of a majority in aggregate principal amount of the Certificates then Outstanding,
upon written notice being filed with the Trustee, the County and the Owner of each Outstanding
Certificate at the address shown on the registration books. Such removal shall take effect only
upon the appointment of a successor Trustee. The rights of the Trustee to be held harmless, to
insurance proceeds or to other amounts due arising prior to the date of such removal shall survive
removal.
Section 8.12 Appointment of Successor Trustee. If the Trustee or any successor trustee
resigns or is removed or dissolved, or if its property or business is taken under the control of any
State or federal court or administrative body, a vacancy shall forthwith exist in the office of the
Trustee, and the County shall appoint a successor and shall cause a notice of such appointment to
be mailed by registered or certified mail to the Owners of all Outstanding Certificates at the address
shown on the registration books. If the County fails to make such appointment within thirty days
after the date notice of resignation is filed,the Owners of a majority in aggregate principal amount
of the Certificates then Outstanding may do so. If the Owners have failed to make such
appointment within sixty days after the date notice of resignation is filed,the Trustee may petition
a court of competent jurisdiction to make such appointment.
Section 8.13 Qualification of Successor. Any successor trustee shall be a national or
State bank with trust powers or a bank and trust company or a trust company, in each case having
capital and surplus of at least $50,000,000, if there be one able and willing to accept the trust on
reasonable and customary terms.
Section 8.14 Instruments of Succession. Any successor trustee shall execute,
acknowledge and deliver to the County an instrument accepting such appointment under this
Indenture;and thereupon such successor trustee,without any further act,deed or conveyance, shall
become fully vested with all the estates, properties, rights, powers, trusts, duties and obligations
of its predecessor in the trust under this Indenture, with like effect as if originally named Trustee
herein and thereupon the duties and obligations of the Trustee ceasing to act shall cease and
terminate. The Trustee ceasing to act under this Indenture shall pay over to the successor trustee
all moneys held by it under this Indenture; and, upon request of the successor trustee,the Trustee
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ceasing to act shall, upon the payment of the fees and expenses owed to the Trustee ceasing to act,
execute and deliver an instrument transferring to the successor trustee all the estates, properties,
rights, powers and trusts under this Indenture of the Trustee ceasing to act.
Section 8.15 Merger of Trustee. Any corporation into which any Trustee hereunder
may be merged or with which it may be consolidated, or any corporation resulting from any sale,
merger or consolidation of its corporate trust business to which any Trustee hereunder shall be a
party, shall be the successor trustee under this Indenture, without the execution or filing of any
paper or any further act on the part of the parties hereto, anything herein to the contrary
notwithstanding.
Section 8.16 Intervention by Trustee. In any judicial proceeding to which the Trustee
or the County is a party and which in the opinion of the Trustee and its counsel has a substantial
bearing on the interests of Owners of the Certificates, the Trustee may intervene on behalf of the
Owners and shall do so if requested in writing by the Owners of at least 25%in aggregate principal
amount of Outstanding Certificates and furnished indemnity. The rights and obligations of the
Trustee under this Section are subject to the approval of a court of competent jurisdiction.
Section 8.17 Books and Record of the Trustee;Trustee Record Keeping. The Trustee
shall keep such books and records relating to the Site Lease and the Lease and Funds and Accounts
created under this Indenture as shall be consistent with industry practice and make such books and
records available for inspection by the County, at all reasonable times and for six years following
the discharge of this Indenture according to Article VI hereof.
Section 8.18 Environmental Matters. Any real property or interest in real property
constituting any portion of the Trust Estate shall be subject to the following provisions:
(a) The Trustee's responsibilities for any interest in real property constituting
any portion of the Trust Estate, prior to an Event of Indenture Default, shall be performed
as Trustee on behalf of the Owners of the Certificates without any duty to monitor or
investigate whether the real property constituting any portion of the Trust Estate complies
with environmental laws or is subject to any Hazardous Substance.The Trustee may inform
any Owner of the Certificates of environmental hazards that the Trustee has reason to
believe exist, and the Trustee has the right to take no further action and in such event no
fiduciary duty exists which imposes any obligation for further action with respect to the
Trust Estate.
(b) Following an Event of Indenture Default, if the Trustee determines that the
release, threatened release, use, generation, treatment, storage, or disposal of any
Hazardous Substance on, under or about real property constituting any portion of the Trust
Estate gives rise to any liability or potential liability under any federal, State, local or
common law, or devalues or threatens to devalue such real property, the Trustee may but
has no obligation to take whatever action is deemed necessary by the Trustee to address
the threatened or actual releases of Hazardous Substances, or to bring about or maintain
such real property's compliance with federal, State, or local environmental laws and
regulations.
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ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS OF THE LEASE AND SITE LEASE
Section 9.01 Supplemental Indentures and Amendments Not Requiring Certificate
Owners' Consent. The Trustee may, with the written consent of the County but without the
consent of or notice to the Owners, enter into such indentures or agreements supplemental hereto,
for any one or more or all of the following purposes:
(a) to grant additional powers or rights to the Trustee;
(b) to make any amendments necessary or desirable to obtain or maintain a
rating from any Rating Agency rating the Certificates;
(c) to authorize the execution and delivery of Additional Certificates for the
purposes and under the conditions set forth in Section 2.08 hereof;
(d) in order to preserve or protect the excludability from gross income for
federal income tax purposes of the interest portion of the Base Rentals allocable to the
Certificates; or
(e) for any purpose not inconsistent with the terms of this Indenture or to cure
any ambiguity, or to correct or supplement any provision contained herein which may be
defective or inconsistent with any other provisions contained herein or to make such other
amendments to this Indenture which do not materially adversely affect the interests of the
Owners of the Certificates.
Section 9.02 Supplemental Indentures and Amendments Requiring Certificate
Owners' Consent.
(a) Exclusive of supplemental indentures and amendments covered by
Section 9.01 hereof,the written consent of the County and the consent of the Owners of a
majority in aggregate principal amount of the Certificates then Outstanding, shall be
required for any indenture or indentures supplemental hereto.
(b) Notwithstanding the foregoing,without the consent of the Owners of all the
Certificates at the time Outstanding nothing herein contained shall permit, or be construed
as permitting:
(i) A change in the terms of redemption or maturity of the principal
amount of or the interest on any Outstanding Certificate, or a reduction in the
principal amount of or premium payable upon any redemption of any Outstanding
Certificate or the rate of interest thereon;
(ii) The deprivation of the Owner of any Certificate then Outstanding of
the lien created by this Indenture (other than as originally permitted hereby);
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(iii) A privilege or priority of any Certificate or Certificates over any
other Certificate or Certificates (except with respect to the possible subordination
of Additional Certificates); or
(iv) A reduction in the aggregate principal amount of the Certificates
required for consent to such supplemental indenture.
(c) If at any time the County shall request the Trustee to enter into a
supplemental indenture which requires the consent of the Certificate Owners as provided
herein, the Trustee shall, upon being satisfactorily indemnified with respect to expenses,
cause notice of the proposed execution of such supplemental indenture to be mailed to the
registered owners of the Certificates at the addresses last shown on the registration records
of the Trustee. Such notice shall briefly set forth the nature of the proposed supplemental
indenture and shall state that copies thereof are on file at the principal corporate trust office
of the Trustee for inspection by all Certificate Owners. If, within 60 days or such longer
period as shall be prescribed by the County following the provision of such notice, the
required consents have been furnished to the Trustee as herein provided, no Certificate
Owner shall have any right to object to any of the terms and provisions contained therein,
or the operation thereof,or in any manner to question the propriety of the execution thereof,
or to enjoin or restrain the Trustee from executing the same or from taking any action
pursuant to the provisions thereof.
Section 9.03 Amendment of the Lease and the Site Lease.
(a) The Trustee and the County shall have the right to amend the Lease and the
Site Lease, without the consent of or notice to the Owners of the Certificates, for one or
more of the following purposes:
(i) to add covenants of the Trustee or the County or to grant additional
powers or rights to the Trustee;
(ii) to make any amendments necessary or desirable to obtain or
maintain a rating from any Rating Agency of the Certificates;
(iii) in order to more precisely identify the Leased Property, including
any substitutions,additions or modifications to the Leased Property as the case may
be, as may be authorized under the Site Lease and the Lease;
(iv) to make additions to the Leased Property, amend the schedule of
Base Rentals and make all other amendments necessary for the execution and
delivery of Additional Certificates in accordance with Section 2.08 hereof;
(v) in order to preserve or protect the excludability from gross income
for federal income tax purposes of the interest portion of the Base Rentals allocable
to the Certificates; or
(vi) for any purpose not inconsistent with the terms of this Indenture or
to cure any ambiguity or to correct or supplement any provision contained therein
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or in any amendment thereto which may be defective or inconsistent with any other
provision contained therein or herein or in any amendment thereto or to make such
other amendments to the Lease or the Site Lease which, in the reasonable judgment
of the County, do not materially adversely affect the interests of the Owners of the
Certificates.
(b) If the Trustee or the County proposes to amend the Lease or the Site Lease
in such a way as would materially adversely affect the interests of the Owners of the
Certificates, the Trustee shall notify the Owners of the Certificates of the proposed
amendment and may consent thereto only with the consent of the Owners of a majority in
aggregate principal amount of the Outstanding Certificates;provided,that the Trustee shall
not, without the unanimous consent of the Owners of all Outstanding Certificates, consent
to any amendment which would (i) decrease the amounts payable in respect of the Lease,
(ii) change the Base Rentals Payment Dates, or (iii) change any of the prepayment
provisions of the Lease.
Section 9.04 Notice to Rating Agencies. The Trustee shall mail a notice of any
amendment or supplement to this Indenture,the Lease or the Site Lease to any Rating Agency then
rating the Certificates.
Section 9.05 Opinions. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an opinion of counsel as conclusive evidence that any proposed
supplemental indenture or amendment complies with the provisions of this Indenture, and, if
applicable, the Lease and/or the Site Lease. The Trustee shall not be obligated to consent to any
supplemental indenture or amendment or amendment of the Lease or the Site Lease which, in the
judgment of the Trustee, is prejudiced to the rights of the Trustee.
ARTICLE X
MISCELLANEOUS
Section 10.01 Evidence of Signature of Owners and Ownership of Certificates. Any
request, consent or other instrument which this Indenture may require or permit to be signed and
executed by the Owners may be in one or more instruments of similar tenor, and shall be signed
or executed by such Owners in person or by their attorneys appointed in writing. Proof of the
execution of any such instrument or of an instrument appointing any such attorney, or the
ownership of Certificates shall be sufficient (except as otherwise herein expressly provided) if
made in the following manner, but the Trustee may, nevertheless, in its discretion require further
or other proof in cases where it deems the same desirable:
(a) The fact and date of the execution by any Owner or his attorney of such
instrument may be proved by the certificate of any officer authorized to take
acknowledgments in the jurisdiction in which he purports to act that the person signing
such request or other instrument acknowledged to him the execution thereof, or by an
affidavit of a witness of such execution, duly sworn to before a notary public.
(b) The fact of the owning by any person of Certificates and the amounts and
numbers of such Certificates, and the date of the owning of the same, may be proved by a
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certificate executed by any trust company, bank or bankers,wherever situated, stating that
at the date thereof the party named therein did exhibit to an officer of such trust company
or bank or to such bankers,as the property of such party,the Certificates therein mentioned.
The Trustee may, in its discretion, require evidence that such Certificates have been
deposited with a bank, bankers or trust company before taking any action based on such
ownership. In lieu of the foregoing the Trustee may accept other proofs of the foregoing
as it shall deem appropriate.
Any request or consent of the Owner of any Certificate shall be conclusive upon and shall
bind all future Owners of such Certificate and of any Certificate executed and delivered upon the
transfer or exchange of such Certificate in respect of anything done or suffered to be done by the
County,the Trustee in accordance therewith,whether or not notation of such consent or request is
made upon any such Certificate.
Section 10.02 Inspection of the Leased Property. Under the Lease, the Trustee and its
duly authorized agents (a) have the right, but not the duty, on reasonable notice to the County, at
all reasonable times, to examine and inspect the Leased Property (subject to such regulations as
may be imposed by the County for security purposes)and(b)are permitted,but have no obligation,
at all reasonable times,to examine the books,records, reports and other papers of the County with
respect to the Leased Property and the Certificates.
Section 10.03 Parties Interested Herein. Nothing in this Indenture expressed or implied
is intended or shall be construed to confer upon, or to give to, any person other than the County,
the Trustee, and the Owners, any right, remedy or claim under or by reason of this Indenture or
any covenant, condition or stipulation of this Indenture; and all the covenants, stipulations,
promises and agreements in this Indenture contained by and on behalf of the Trustee shall be for
the sole and exclusive benefit of the County, the Trustee, and the Owners.
Section 10.04 Titles,Headings,Etc. The titles and headings of the articles, sections and
subdivisions of this Indenture have been inserted for convenience of reference only and shall in no
way modify or restrict any of the terms or provisions of this Indenture.
Section 10.05 Severability. In the event any provision of this Indenture shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision of this Indenture.
Section 10.06 Governing Law. This Indenture shall be governed and construed in
accordance with the laws of the State of Colorado without regard to choice of law analysis.
Section 10.07 Execution in Counterparts. This Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall constitute but one and the
same instrument.
Section 10.08 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:
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if to the County: Eagle County
500 Broadway, P.O. Box 850
Eagle, Colorado 81631
Attention: Chief Financial Officer
if to the Trustee: UMB Bank, n.a.
1670 Broadway
Denver, Colorado 80202
Attention: Corporate Trust and Escrow Services
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.
Section 10.09 Successors and Assigns. All the covenants, promises and agreements in
this Indenture contained by or on behalf of the Trustee shall bind and inure to the benefit of its
successors and assigns, whether so expressed or not.
Section 10.10 Payments Due on a Day other than a Business Day. If the date for
making any payment or the last day for performance of any act or the exercise of any right, as
provided in this Indenture, 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 Indenture.
Section 10.11 No Personal Recourse. No recourse shall be had for any claim based on
the Lease, this Indenture, or the Certificates, including but not limited to the payment of the
principal or redemption price of or premium, if any, or interest on, the Certificates, against any
commissioner,director,member,officer,agent,or employee,past,present,or future,of the County
or any successor body to either,as such,either directly or through the County or any such successor
body, under any constitutional provision, statute, or rule of law or by the enforcement of any
assessment or penalty or by any legal or equitable proceeding or otherwise.
Section 10.12 Election Under Supplemental Public Securities Act. The County has
elected to have all provisions of the Supplemental Act apply to the execution and delivery of the
Certificates to the full extent permitted thereby; provided, however, that such election shall not
operate to modify or limit the rights conferred on the County by any other provisions of State law.
Section 10.13 Undertaking to Provide Ongoing Disclosure. The County has
covenanted in Section 10.05 of the Lease to comply with the terms of the Continuing Disclosure
Agreement. Notwithstanding any other provision of this Indenture, failure by the County to
comply with the Continuing Disclosure Agreement shall not be considered an Event of Indenture
Default and the rights and remedies provided by this Indenture upon the occurrence of an Event of
Indenture Default shall not apply to any such failure. The Continuing Disclosure Agreement shall
be enforceable only by specific performance by any Owner of the applicable Certificate as further
described therein. The Trustee shall have no power or duty to enforce the obligations of the County
under the Continuing Disclosure Agreement.
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Section 10.14 Electronic Transactions. The parties hereto agree that the transaction
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.
Without limiting the foregoing, the Trustee determined that in the event that any individual or
individuals who are authorized to execute or consent to this Indenture on behalf of the Trustee are
not able to be physically present to manually sign this Trustee or any supplement or consent
relating thereto, that such individual or individuals are hereby authorized to execute the same
electronically via facsimile or email signature. The determination by the Trustee to use electronic
signatures is made pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform
Electronic Transactions Act. Any electronic signature so affixed to this Indenture or any
supplement or consent relating thereto shall carry the full legal force and effect of any original,
handwritten signature.
[Signature on following page]
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IN WITNESS WHEREOF,the Trustee has caused this Indenture to be executed all as of
the date first above written.
UMB BANK,N.A., as Trustee
By:
Authorized Representative
[Signature Page to Indenture of Trust]
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EXHIBIT A
FORM OF CERTIFICATES
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York Authority ("DTC"), to the Trustee for registration of transfer, exchange,
or payment, and any certificate executed and delivered is registered in the name of Cede&Co. or
in such other name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized representative of
DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede&Co., has an interest herein.
CERTIFICATE OF PARTICIPATION,
SERIES 2021
Evidencing a Proportionate Interest in the
Base Rentals and other Revenues under an Annually
Renewable Lease Purchase Agreement,dated August 1,2021, between
UMB Bank, n.a.,as Trustee, as lessor,and Eagle County, Colorado,as lessee
No. R- $
Interest Rate Maturity Date Dated Date CUSIP Number
December 1, 20_ August [ 1, 2021
Registered Owner: CEDE&CO.
Tax Identification Number: 13-2555119
Principal Amount: DOLLARS
THIS CERTIFIES THAT the Registered Owner (specified above), or registered assigns,
as the Registered Owner (the "Owner") of this Certificate of Participation (the "Certificate"), is
the Owner of a proportionate interest in the right to receive certain designated Revenues, including
Base Rentals, under and as defined in the Lease Purchase Agreement (the "Lease") dated as of
August 1,2021, between UMB Bank, n.a., as Trustee(the"Trustee"), as lessor,and Eagle County
(the "County"), as lessee, and the Indenture of Trust (the "Indenture") dated as of August 1,
2021, by the Trustee. This Certificate is secured as provided in the Lease and the Indenture for
the registered owners of the Certificates of Participation, Series 2021 (the "Certificates"). All
terms capitalized but not defined herein shall have the meanings given to them in the Indenture.
This Certificate bears interest, matures, is payable, is subject to redemption, and is
transferable as provided in the Indenture.
Under the Site Lease, certain Leased Property described therein (the "Leased Property")
has been leased by the County, as lessor, to the Trustee, as lessee. Under the Lease, the Leased
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Property has been leased back by the Trustee, as lessor, to the County, as lessee, and the County
has agreed to pay directly to the Trustee Base Rentals in consideration of the County's right to
possess and use the Leased Property. Certain Revenues, including Base Rentals, are required
under the Indenture to be distributed by the Trustee for the payment of the Certificates and interest
thereon. The Lease is subject to annual appropriation, non-renewal and, in turn, termination by
the County.
This Certificate has been executed and delivered pursuant to the terms of the Indenture.
Reference is hereby made to the Site Lease, the Lease, and the Indenture (copies of which are on
file in the offices of the Trustee) for a description of the terms on which the Certificates are
delivered, and the rights thereunder of the Owners of the Certificates, the rights, duties, and
immunities of the Trustee and the rights and obligations of the County under the Site Lease and
the Lease, to all of the provisions of which Site Lease, Lease, and Indenture the Owner of this
Certificate, by acceptance hereof, assents and agrees.
Additional Certificates may be executed and delivered pursuant to the Indenture without
consent of or notice to the owners of the Certificates and upon the satisfaction of certain conditions
and limitations. Such Additional Certificates,together with the Certificates, are referred to herein
as the"Certificates." Additional Certificates will evidence interests in rights to receive Revenues,
including Base Rentals, without preference, priority, or distinction of any Certificates, including
the Certificates, over any others, however, insurance and other credit facilities may be applicable
only to particular series of Certificates or portions thereof.
To the extent and in the manner permitted by the terms of the Indenture, the provisions of
the Indenture may be amended by the Trustee with the written consent of the Owners of a majority
in aggregate principal amount of the Certificates outstanding, and may be amended without such
consent under certain circumstances described in the Indenture but in no event such that the
interests of the Owners of the Certificates are materially adversely affected,provided that no such
amendment is to impair the right of any Owner to receive in any case such Owner's proportionate
share of any payment of Revenues in accordance with the terms of such Owner's Certificate.
THE OWNER OF THIS CERTIFICATE IS ENTITLED TO RECEIVE, SUBJECT TO
THE TERMS OF THE LEASE, THE PRINCIPAL AMOUNT (SPECIFIED ABOVE), ON THE
MATURITY DATE(SPECIFIED ABOVE),AND IS ENTITLED TO RECEIVE INTEREST ON
THE PRINCIPAL AMOUNT AT THE INTEREST RATE (SPECIFIED ABOVE). The interest
hereon is payable at the interest rate from the Dated Date(specified above) on December 1, 2021,
and semiannually thereafter on December 1 and June 1 in each year (the "Interest Payment
Dates") and thereafter (A) from the Execution Date (specified below), if this Certificate is
executed on an Interest Payment Date or (B) from the last preceding Interest Payment Date to
which interest has been paid in all other cases,until the Principal Amount is paid as set forth herein.
Interest is to be calculated on the basis of a 360-day year consisting of twelve 30-day months.
THIS CERTIFICATE IS PAYABLE SOLELY FROM THE BASE RENTALS
PAYABLE TO THE TRUSTEE PURSUANT TO THE LEASE AND OTHER REVENUES AS
DEFINED IN THE INDENTURE. NEITHER THE LEASE, THIS CERTIFICATE, THE
CERTIFICATES, INCLUDING THE CERTIFICATES, OR THE OBLIGATION OF THE
COUNTY TO PAY BASE RENTALS OR ADDITIONAL RENTALS CONSTITUTES A
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GENERAL OBLIGATION OR OTHER INDEBTEDNESS OF THE COUNTY OR A
MULTIPLE FISCAL YEAR DIRECT OR INDIRECT DEBT OR OTHER FINANCIAL
OBLIGATION WHATSOEVER OF THE COUNTY, WITHIN THE MEANING OF ANY
CONSTITUTIONAL OR STATUTORY DEBT LIMITATION. NEITHER THE LEASE NOR
THE CERTIFICATES HAVE DIRECTLY OR INDIRECTLY OBLIGATED THE COUNTY TO
MAKE ANY PAYMENTS BEYOND THOSE APPROPRIATED FOR THE COUNTY'S THEN
CURRENT FISCAL YEAR.
This Certificate is executed and delivered under the authority of Article 57, Title 11, Part
2, C.R.S. (the"Supplemental Act"). Pursuant to Section 11-57-210, C.R.S., such recital shall be
conclusive evidence of the validity and the regularity of the execution and delivery of this
Certificate after its delivery for value.
This Certificate is executed and delivered with the intent that the laws of the State of
Colorado shall govern its legality, validity, enforceability and construction. The County has
determined that this Certificate is authorized and executed and delivered under the authority of
and in full conformity with the Constitution of the State of Colorado and all other laws of the State
of Colorado thereunto enabling.
This Certificate shall not be valid or become obligatory for any purpose or be entitled to
any security or benefit under the Lease or the Indenture, until executed by the Trustee.
The Trustee has executed this Certificate solely in its capacity as Trustee under the
Indenture and not in its individual or personal capacity. The Trustee is not liable for the obligations
evidenced by the Certificates except from amounts held by it in its capacity as Trustee under the
Indenture.
IT IS HEREBY CERTIFIED,RECITED AND DECLARED that all things,conditions and
acts required by the Constitution and the statutes of the State and the Indenture to exist, to have
happened and to have been performed precedent to and the execution and delivery of this
Certificate, do exist, have happened and have been performed in due time, form and manner, as
required by law.
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IN WITNESS WHEREOF,this Certificate has been executed with the manual signature of
an authorized representative of the Trustee.
Execution Date: August [ 1, 2021
UMB BANK,N.A., as Trustee
By:
Authorized Signatory
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(Form of Assignment)
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
the within Certificate and hereby
irrevocably constitutes and appoints Attorney,to transfer the within Certificate on
the books kept for registration thereof, with full power of substitution in the premises.
Signature
Dated:
Signature Guaranteed:
Signature must be guaranteed by a member
of a Medallion Signature Program
Address of Transferee:
Social Security or other tax
identification number of transferee:
NOTE: The signature to this Assignment must correspond with the name as written on the face
of the within bond in every particular,without alteration or enlargement or any change whatsoever.
(End Form of Assignment)
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(Form of Prepayment Panel)
PREPAYMENT PANEL
The following installments of principal (or portions thereof) of this Certificate have been
prepaid in accordance with the terms of the Indenture authorizing the execution and delivery of
this Certificate.
Signature of
Date of Principal Authorized
Prepayment Prepaid Representative of DTC
(End of Form of Redemption Panel)
(End Form of Certificates)
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Ballard Spahr Draft: 7/15/2021
AFTER RECORDATION PLEASE RETURN TO:
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Attention: Anastasia Khokhryakova, 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 1,2021
between
UMB BANK,N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE IDENTIFIED
HEREIN,
AS LESSOR
and
EAGLE COUNTY, COLORADO,
AS LESSEE
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Table of Contents
Page
ARTICLE I DEFINITIONS 3
Section 1.01 Certain Funds and Accounts 3
Section 1.02 Definitions 3
ARTICLE II REPRESENTATIONS AND COVENANTS 8
Section 2.01 Representations and Covenants of the County 8
Section 2.02 Representations and Covenants of the Trustee 10
Section 2.03 Nature of Lease. 11
Section 2.04 County Acknowledgment of Certain Matters 11
Section 2.05 Relationship of County and Trustee 11
Section 2.06 Security 12
ARTICLE III LEASE OF THE LEASED PROPERTY 12
Section 3.01 Demising of Leased Property 12
Section 3.02 No Merger 12
Section 3.03 Trustee's Covenant of Quiet Enjoyment 12
ARTICLE IV LEASE TERM 13
Section 4.01 Duration of Lease Term 13
Section 4.02 Budget 13
Section 4.03 Notice 13
Section 4.04 Termination of Lease Term 14
ARTICLE V THE LEASED PROPERTY 15
Section 5.01 County's Need for the Leased Property 15
Section 5.02 Determinations as to Fair Value and Fair Purchase Price 15
ARTICLE VI PAYMENTS BY THE COUNTY 15
Section 6.01 Payments to Constitute Currently Budgeted Expenditures of the
County 15
Section 6.02 Base Rentals 16
Section 6.03 Purchase Option Price 16
Section 6.04 Additional Rentals 17
Section 6.05 Manner of Payment 17
Section 6.06 County's Obligation 17
Section 6.07 Nonappropriation 18
Section 6.08 Holdover Tenant 19
Section 6.09 Prohibition of Adverse Budget or Appropriation Modifications 19
ARTICLE VII SITE LEASE; TITLE TO LEASED PROPERTY; LIMITATIONS ON
ENCUMBRANCES 20
Section 7.01 Site Lease 20
Section 7.02 Title to the Leased Property 20
Section 7.03 Title Insurance 20
Section 7.04 No Encumbrance, Mortgage or Pledge of the Leased Property 20
ARTICLE VIII MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES 21
Section 8.01 Maintenance of the Leased Property by the County 21
Section 8.02 Modification of the Leased Property 21
Section 8.03 Installation of Furnishings and Machinery of the County 21
Section 8.04 Taxes, Other Governmental Charges and Utility Charges 21
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Section 8.05 Provisions For Liability and Property Damage Insurance 22
Section 8.06 Advances 23
Section 8.07 Granting of Easements 23
Section 8.08 Release and Substitution of Leased Property 23
ARTICLE IX DAMAGE, DESTRUCTION AND CONDEMNATION; USE OF NET
PROCEEDS 24
Section 9.01 Damage, Destruction and Condemnation 24
Section 9.02 Obligation to Repair and Replace the Leased Property 25
Section 9.03 Insufficiency of Net Proceeds 26
Section 9.04 Cooperation of the Trustee 27
ARTICLE X DISCLAIMER OF WARRANTIES; OTHER COVENANTS 27
Section 10.01 Disclaimer of Warranties 27
Section 10.02 Further Assurances and Corrective Instruments 27
Section 10.03 Compliance with Requirements 28
Section 10.04 Tax Covenants 28
Section 10.05 Undertaking to Provide Ongoing Disclosure 29
Section 10.06 Covenant to Reimburse Legal Expenses and Immunity 29
Section 10.07 Access to the Leased Property; Right to Inspect Books 30
Section 10.08 County's Obligations under the Indenture; Acknowledgment of the
Certificates 30
ARTICLE XI PURCHASE OPTION 30
Section 11.01 Purchase Option 30
Section 11.02 Conditions for Purchase Option 31
Section 11.03 Manner of Conveyance Upon Purchase Option 31
Section 11.04 Conveyance at the End of Maximum Lease Term 32
Section 11.05 Release of Portions of Leased Property 32
ARTICLE XII ASSIGNMENT AND SUBLEASING 33
Section 12.01 Assignment by the Trustee; Replacement of the Trustee 33
Section 12.02 Assignment and Subleasing by the County 33
ARTICLE XIII EVENTS OF LEASE DEFAULT AND REMEDIES 34
Section 13.01 Events of Lease Default Defined 34
Section 13.02 Remedies on Default 35
Section 13.03 Limitations on Remedies 35
Section 13.04No Remedy Exclusive 36
Section 13.05 Waivers 36
Section 13.06 Agreement to Pay Attorneys' Fees and Expenses 36
Section 13.07 Financial Obligations of Trustee Limited to Available Funds 36
Section 13.08 Waiver of Appraisement, Valuation, Stay, Extension and
Redemption Laws 36
ARTICLE XIV MISCELLANEOUS 37
Section 14.01 Sovereign Powers of County 37
Section 14.02Notices 37
Section 14.03 Third Party Beneficiaries 37
Section 14.04 Binding Effect 37
Section 14.05 Amendments 37
Section 14.06 Amounts Remaining in Funds 38
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Section 14.07 Triple Net Lease 38
Section 14.08 Computation of Time 38
Section 14.09 Payments Due on Days other than Business Days 38
Section 14.10 Severability 38
Section 14.11 Execution in Counterparts 38
Section 14.12 Applicable Law 39
Section 14.13 Governmental Immunity 39
Section 14.14No Individual Liability 39
Section 14.15 Recitals 39
Section 14.16 Captions 39
Section 14.17 Trustee's Disclaimer 39
Section 14.18 Electronic Transactions 39
EXHIBIT A DESCRIPTION OF LEASED PROPERTY
EXHIBIT B PERMITTED ENCUMBRANCES
EXHIBIT C BASE RENTALS SCHEDULE
EXHIBIT D FORM OF NOTICE OF LEASE RENEWAL
EXHIBIT E RELEASE AND AMORTIZATION SCHEDULE
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This LEASE PURCHASE AGREEMENT, dated as of August 1,2021 (this"Lease"), is
by and between UMB Bank, n.a., a national banking association duly organized and validly
existing under the laws of the United States, solely in its capacity as trustee under the Indenture
(the "Trustee"), as lessor, and Eagle County, Colorado, a political subdivision duly organized
and existing under the Constitution and laws of the State of Colorado (the"County"), as lessee.
RECITALS
WHEREAS, the County, pursuant to the constitution and laws of the State of Colorado
(the "State"), is a duly organized and validly existing political subdivision of the State, with the
authority,pursuant to Section 30-11-101(1)(c),Colorado Revised Statutes,as amended("C.R.S.")
to sell, convey, or exchange any real or personal property owned by the County and make such
order respecting the same as may be deemed conducive to the interests of the inhabitants; and to
lease any real or personal property, either as lessor or lessee, together with any facilities thereon,
when deemed by the Board of County Commissioners of the County (the "Board") to be in the
best interests of the County and its inhabitants, and pursuant to Section 30-11-104.1, C.R.S., is
authorized to enter into lease purchase agreements for the purpose of financing real property and
personal property, including a public trail, used or to be used for governmental purposes; and
WHEREAS,the County desires to construct and improve approximately 12 miles of paved
public trail for biking and pedestrian uses from Eagle-Vail to Dotsero (the "Trail"), which Trail,
when completed, will connect to the existing Eagle Valley Trail that spans the County from Vail
Pass to Glenwood Canyon, and which will provide recreation opportunities for the County
residents and visitors; and
WHEREAS, the Board has determined and does hereby determine that it is in the best
interest of the County and its inhabitants and in furtherance of the County's governmental
functions and operations to finance a portion of the costs of the acquisition, construction and
improvement of the Trail, including the acquisition of the real property in connection therewith
(the"Project")and that the provision of the recreation opportunities for which the Project will be
used is a valid governmental purpose; and
WHEREAS, the Board has determined that it is in the best interest of the County and its
inhabitants to provide for the financing of the Project by entering into a Site and Improvement
Lease with the Trustee, acting solely in its capacity of trustee (the "Site Lease") and this Lease;
and
WHEREAS, in order to generate moneys to finance all of the costs of construction of the
Project, the Trustee will, simultaneously herewith, enter into an Indenture of Trust dated as of
August 1,2021 (as amended or supplemented from time to time,the"Indenture")by UMB Bank,
n.a., as trustee (the "Trustee"), $[PAR] of Certificates of Participation, Series 2021 (the
"Certificates")evidencing a proportionate interest in rights to receive certain payments under this
Lease; and
WHEREAS, the County owns, in fee title, the Site (as defined herein) and the building
and certain improvements located thereon (collectively, as more particularly defined herein, the
"Leased Property") comprised of (a) the Health and Human Services Building (containing
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approximately 14,000 square feet), located at 551 Broadway Street, and 30 surface parking spaces
serving the Health and Human Services Building; and (b)the Eagle County Building(containing
approximately 27,494 square feet), located at 500 Broadway Street,and 55 surface parking spaces
serving the Eagle County Building,all as more particularly described in Exhibit A attached hereto;
and
WHEREAS, to effectuate the Project, the Trustee will acquire a leasehold interest in the
Leased Property by leasing the Leased Property from the County pursuant to the Site Lease and
will lease the Leased Property back to the County pursuant to this Lease; and
WHEREAS, contemporaneously with the execution and delivery of the Site Lease and
this Lease, the Trustee will execute and deliver an Indenture of Trust dated as of the date hereof
(the "Indenture") pursuant to which there will be executed and delivered the Certificates (as
defined herein); and
WHEREAS, the Certificates will be dated as of their date of delivery, will evidence
proportionate interests in the right to receive certain Revenues(as defined herein), will be payable
solely from the sources therein provided, and shall not directly or indirectly obligate the County
to make any payments beyond those appropriated for any fiscal year during which this Lease shall
be in effect; and
WHEREAS, the net proceeds of the Certificates, together with other available money of
the County, will be used to finance the Project; and
WHEREAS,the payment by the County of Base Rentals and Additional Rentals hereunder
in any future Fiscal Year is subject to specific Appropriations and the renewal by the Board of this
Lease for such future Fiscal Year; and
WHEREAS, neither this Lease nor the payment by the County of Base Rentals or
Additional Rentals hereunder shall be deemed or construed as creating an indebtedness of the
County within the meaning of any provision of the Colorado constitution or the laws of the State
of Colorado concerning or limiting the creation of indebtedness by the County, and shall not
constitute a multiple fiscal year direct or indirect debt or other financial obligation of the County
within the meaning of Article X, Section 20(4)of the Colorado constitution or a mandatory charge
or requirement against the County in any ensuing Fiscal Year beyond the then current Fiscal Year;
and
WHEREAS, the obligation of the County to pay Base Rentals and Additional Rentals
hereunder shall be from year to year only, shall constitute currently budgeted expenditures of the
County, shall not constitute a mandatory charge or requirement in any ensuing budget year, nor a
mandatory payment obligation of the County in any ensuing Fiscal Year beyond any Fiscal Year
during which this Lease shall be in effect; and
WHEREAS, 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; and has
determined that the lease of the Leased Property to the County pursuant to this Lease is in the best
interests of the Trustee; and
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WHEREAS, the County has determined that the lease of the Leased Property from the
Trustee pursuant to this Lease serves a public purpose and is in the best interest of the County and
its residents; and
WHEREAS,the Trustee desires to lease the Leased Property to the County and the County
desires to lease the Leased Property from the Trustee pursuant to this Lease; and
WHEREAS, the Trustee and the County intend that this Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the County 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 County agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 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 1.02 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) 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 (i)the reasonable fees and expenses of any person or firm employed
by the County to make rebate calculations under the provisions of Section 3.05 of the
Indenture and the expenses of the Trustee in respect of any policy of insurance or surety
bond 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,and approved by the County 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 County
Representative;
(b) taxes, assessments, insurance premiums, utility charges, maintenance,
upkeep, repair and replacement with respect to the Leased Property or as otherwise
required under this Lease;
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(c) any Rebate Fund payments required pursuant to this Lease and the
Indenture; and
(d) all other charges and costs(together with all interest and penalties that may
accrue thereon in the event that the County shall fail to pay the same, as specifically set
forth in this Lease)which the County agrees to assume or pay as Additional Rentals under
this Lease.
Additional Rentals shall not include Base Rentals.
"Appropriation" means the action of the Board 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 County during the Lease Term,
which constitute payments payable by the County for and in consideration of the right to possess
and use the Leased Property as set forth in Exhibit C hereto. Base Rentals do not include
Additional Rentals.
"Base Rentals Payment Dates" means the Base Rentals Payment Dates set forth in
Exhibit C hereto.
"Board"means the Board of County Commissioners of the County or any successor to its
functions.
"Budget"means the annual budget of the County as finally adopted by the Board.
"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 remain closed or(b) on which the Federal Reserve System is closed.
"Certificates" means the "Certificates of Participation, Series 2021, Evidencing
Proportionate Interests in the Base Rentals and other Revenues under an annually renewable Lease
Purchase Agreement dated as of August 1, 2021, by and between UMB Bank, n.a., solely in its
capacity as trustee under the Indenture, as lessor, and Eagle County, Colorado, as lessee"dated as
of their date of delivery, executed, and delivered pursuant to the Indenture.
"Continuing Disclosure Agreement" means the agreement by that name executed by the
County and Digital Assurance Certification, LLC dated as of the date of execution and delivery of
the Certificates which constitutes an undertaking pursuant to Rule 15c2-12 promulgated by the
U.S. Securities and Exchange Commission under the 1934 Exchange Act.
"Costs of Execution and Delivery Fund"has the meaning assigned thereto in the Indenture.
"Counsel"means an attorney at law or law firm(who may be counsel for the Trustee)who
is satisfactory to the County.
"County"means Eagle County, Colorado.
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"County Representative" means the Chair of the Board, the County Manager, the County
Chief Financial Officer, their respective successors in functions, or such other person at the time
designated to act on behalf of the County 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 County by the Chair or
any other member of the Board.
"C.R.S."means Colorado Revised Statutes, as amended.
"Event of Indenture Default"has the meaning assigned thereto in the Indenture.
"Event(s) of Lease Default"means any event as defined in Section 13.01 hereof.
"Event of Nonappropriation"means the termination and non-renewal of this Lease by the
County, determined by the Board'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 6.04 hereof An Event of Nonappropriation may also occur
under certain circumstances described in Section 9.03(a) hereof. The term also means a notice
under this Lease of the County's intention to not renew and therefore terminate this Lease or an
event described in this Lease relating to the exercise by the County of its right to not appropriate
amounts due as Additional Rentals in excess of the amounts for which an Appropriation has been
previously effected.
"Fiscal Year" means the County's fiscal year, which begins on January 1 of any calendar
year and ends on December 31 of the same year, and which is also the County's budget year within
the meaning of Section 30-11-104.1, C.R.S., or any other period of up to 12 months that is
designated by statute or otherwise as the fiscal year for the County.
"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, 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 County 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 State 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 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
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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 1, 2021, entered into by the
Trustee, as the same may be amended or supplemented.
"Initial Term"means the period commencing on the date of execution and delivery of the
Certificates and terminating on December 31, 2021.
"Interest Portion" means the portion of each Base Rentals payment that represents the
payment of interest set forth in Exhibit C hereto.
"Lease"means this Lease Purchase Agreement,dated as of August 1,2021,by and between
the Trustee, as lessor, and the County, as lessee, as the same may be amended or supplemented.
"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 County 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 County is the lessee of the Leased
Property under this Lease.
"Leased Property"means the Site and the premises, buildings, and improvements situated
thereon, 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,and
any New Facility.
"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 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 County and the Trustee.
"New Facility" means any real property, buildings, or equipment leased by the County to
the Trustee pursuant to a future amendment to the Site Lease and leased back by the County from
the Trustee pursuant to a future amendment to this Lease in connection with the execution and
delivery of Additional Certificates.
"Outstanding"has the meaning assigned to it in the Indenture.
"Owners"means the registered owners of any Certificates.
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"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,party
permits, party wall and other agreements, restrictions and exceptions which the County
Representative certifies will not materially interfere with or materially impair the Leased Property
or the use thereof, including rights or privileges in the nature of easements, licenses, permits and
agreements as provided in this Lease; (d) any sublease of the Leased Property that is permitted
pursuant to the terms and provisions of Section 12.02 hereof (e) any applicable zoning
requirements; and (f) 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 more particularly described in Exhibit B hereto, and which the County Representative
has certified do not and will not interfere in any material way with the use of the Leased Property.
"Prepayment" means any amount paid by the County 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 hereto.
"Project"has the meaning assigned thereto in the Recitals hereof.
"Purchase Option Price" means the amount payable on any date, at the option of the
County, to prepay Base Rentals, terminate the Lease Term, and purchase the Trustee's leasehold
interest in the Leased Property, as provided herein.
"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 the same year,as provided in Article IV
hereof.
"Revenues" means (a) all amounts payable by or on behalf of the County 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 created
under the Indenture; (c) any moneys which may be derived from any insurance in respect of the
Certificates;and(d)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 the Rebate Fund or any defeasance escrow account).
"Site" means, collectively, the real property, with all its appurtenances, owned by the
County and leased by the County to the Trustee under the Site Lease and subleased by the Trustee
to the County under this Lease,the description of which is set forth in Exhibit A to this Lease, or
an amendment or supplement thereto.
"Site Lease" means the Site and Improvement Lease dated as of the date of this Lease,
between the County,as lessor, and the Trustee,as lessee,as the same may hereafter be amended.
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"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 County shall have the right to
select Special Counsel.
"Tax Certificate"means the Tax Certificate entered into by the County with respect to this
Lease and the Certificates.
"Tax Code" means the Internal Revenue Code of 1986, as amended, and all regulations
and rulings promulgated thereunder
"Trustee" means UMB Bank, n.a., acting in the capacity of trustee pursuant to the
Indenture, and any successor thereto appointed under the Indenture.
ARTICLE II
REPRESENTATIONS AND COVENANTS
Section 2.01 Representations and Covenants of the County. The County represents
and covenants to the Trustee,to the extent allowed by law and subject to renewal of this Lease and
Appropriation as set forth in Article VI hereof, as follows:
(a) The County is a legally and duly created and validly existing political
subdivision of the State, organized and operating under the laws of the State. The County
is authorized to enter into this Lease, the Site Lease, and other documents related to this
transaction and to carry out its obligations hereunder and thereunder. The County has duly
authorized and approved the execution and delivery of this Lease,the Site Lease,and other
documents related to this Lease.
(b) The County is a fee title owner of the Leased Property.
(c) The leasing of the Leased Property 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 financing of the Project, are necessary,
convenient and in furtherance of the County's governmental purposes, serve a public
purpose, and are in the best interests of the County and its inhabitants. The County will
apply the net proceeds of the Certificates, together with other available moneys of the
County,to finance the Project.
(d) 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 County is now a party or by which the County or its
property is bound, or violates any statute, regulation, rule, order of any court having
, jurisdiction, judgment or administrative order applicable to the County, or constitutes a
default under any of the foregoing, or results in the creation or imposition of any lien or
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encumbrance whatsoever upon any of the property or assets of the County, except for
Permitted Encumbrances.
(e) The County agrees that,except for non-renewal and nonappropriation as set
forth in Article VI and Section 9.03(a)hereof, if the County fails to perform any act which
the County 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 County
(from moneys for which an Appropriation has been effected)to the Trustee, shall be a part
of Additional Rentals, 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 County affecting
the right of the County to execute this Lease or the Site Lease or the ability of the County
to make the payments required hereunder 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
County or materially impair the right or ability of the County to carry on its operations
substantially as now conducted or anticipated to be conducted in the future.
(g) During the Lease Term,the Project and the Leased Property will at all times
be used by the County for governmental purposes (except to the extent that subleasing of
the Leased Property by the County is permitted by Section 12.02 hereof).
(h) The Leased Property is necessary and essential to the purposes and
operations of the County.
(i) The County covenants and agrees to comply with any applicable covenants
and requirements of the County set forth in the Tax Certificate and the Indenture.
(j) Except for customary materials necessary for construction, operation,
cleaning, and maintenance of the Leased Property, the County 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 County results in contamination of the
Leased Property, or if contamination of the Leased Property by any Hazardous Substance
otherwise occurs for which the County is legally liable for damage resulting therefrom,
then the County 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 County) 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 County is not
indemnifying the Trustee and expenses of such defense shall constitute Additional Rentals.
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Without limiting the foregoing, if the presence of any Hazardous Substance on the Leased
Property caused or permitted by the County results in any contamination of the Leased
Property,the County 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 2.02 Representations and Covenants of the Trustee. The Trustee represents
and covenants as follows:
(a) The Trustee is a national banking association, duly organized, and validly
existing under the laws of the United States, duly qualified with full power and authority
to conduct business in the State and to carry out the transactions described in the Site Lease,
this Lease, and the Indenture.
(b) The Trustee has duly authorized by proper action its execution, delivery
observance, and performance of the Site Lease, this Lease, and the Indenture.
(c) Neither the execution and delivery of this Lease, the Site Lease, and the
Indenture,nor the fulfillment of or compliance with the terms and conditions of this Lease,
the Site Lease, and the Indenture, 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 Trustee is now a party or by
which the Trustee or its property is bound, or violates any statute, regulation,rule, order of
any court having jurisdiction,judgment or administrative order applicable to the Trustee,
or constitutes a default under any of the foregoing, or contravenes the Trustee's charter
documents.
(d) The Trustee acknowledges and recognizes that this Lease will be terminated
in the event that funds are not specifically budgeted and appropriated by the Board to pay
the Base Rentals during the next occurring Fiscal Year and that the acts of budgeting and
appropriating funds are legislative acts and, as such, are solely within the discretion of the
Board.
(e) 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 and interest in, to and under this Lease or the Site Lease
or the Leased Property except for Permitted Encumbrances.
(f) 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
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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.
(g) 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, the Site Lease,
or the Indenture,and perform its obligations thereunder or hereunder,except such litigation
or proceeding as has been disclosed in writing to the County on or prior to the date the
Indenture is executed and delivered.
Section 2.03 Nature of Lease. The County and the Trustee acknowledge and agree that
the Base Rentals and Additional Rentals hereunder shall constitute currently budgeted and
appropriated expenditures of the County and may be paid from any legally available funds. The
County's obligations under this Lease shall be subject to the County'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 County within the meaning of any constitutional, 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 County within the meaning of Article XI, Sections 1 or 2 of the State Constitution. Neither
this Lease nor the execution and delivery of the Certificates shall directly or indirectly obligate the
County to make any payments beyond those duly budgeted and appropriated for the County's then
current Fiscal Year. The County shall be under no obligation whatsoever to exercise its option to
purchase the Trustee's 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 County moneys, nor shall any
provision of this Lease restrict the future issuance of any County bonds or obligations payable
from any class or source of County moneys (provided, however, certain restrictions in the
Indenture shall apply to the execution and delivery of Additional Certificates).
Section 2.04 County Acknowledgment of Certain Matters. The County
acknowledges the Indenture and the execution and delivery by the Trustee of the Certificates
pursuant to the Indenture. The County 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. To the extent the County has duties,
obligations, and rights under the Indenture, the County agrees to perform such duties and
obligations, and that it may exercise such rights so long as this Lease is in effect, subject to
appropriation and to the extent permitted by law.Relationship of County and Trustee. The
relationship of the County and the Trustee under this Lease is, and shall at all times remain, solely
that of lessee and lessor;and the County 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 assumes any responsibility or duty to the County
or to any third party with respect to the County's obligations relating to the Leased Property.
Notwithstanding any other provisions of this Lease: (a) the County 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,
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and the County and the Trustee do not intend to ever assume such status; and (b) the County and
the Trustee shall not be deemed responsible for,or a participant in,any acts,omissions or decisions
of either of the other.
Section 2.06 Security. In the event that this Lease is not renewed by the County,the sole
security available to the Trustee, as lessor hereunder, shall be the Leased Property and funds held
in the Trust Estate, if any.
ARTICLE III
LEASE OF THE LEASED PROPERTY
Section 3.01 Demising of Leased Property. The Trustee demises and leases the Leased
Property to the County and the County 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.
Section 3.02 No Merger.The County and the Trustee acknowledge that the County owns
the Leased Property and the County has leased the Leased Property to the Trustee pursuant to the
Site Lease; and the County and the Trustee intend that there be no merger of the County's interests
as sublessee under this Lease and the County's ownership interest in the Leased Property 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.
Section 3.03 Trustee's Covenant of Quiet Enjoyment.
(a) The Trustee hereby covenants that the County shall,during the Lease Term,
peaceably and quietly have, hold and enjoy the Leased Property without suit, trouble or
hindrance from the Trustee, except as expressly required or permitted by this Lease. The
Trustee shall not interfere with the quiet use and enjoyment of the Leased Property by the
County during the Lease Term so long as no Event of Lease Default shall have occurred.
The Trustee shall, at the request of the County and at the cost of the County, join and
cooperate fully in any legal action in which the County 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
County 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.
(b) The provisions of this Section shall be subject to the Trustee's right to
inspect the Leased Property and the County's books and records with respect thereto as
provided in Section 10.07 and Section 10.08 hereof.
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ARTICLE IV
LEASE TERM
Section 4.01 Duration of Lease Term.
(a) The Lease Term shall commence as of the date hereof. The Initial Term
shall terminate on December 31, 2021. This Lease may be renewed, solely at the option
of the County, for successive [number of years] Renewal Terms; provided, however, that
the Lease Term shall terminate no later than December 31, 20[ ].
(b) 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 XI and Exhibit C hereof.
(c) The County hereby finds and determines that the maximum Lease Term
hereunder does not exceed the weighted average useful life of the Leased Property.
Section 4.02 Budget. The County Budget Officer or other officer of the County at any
time charged with the responsibility of formulating budget proposals for the County is hereby
directed to include in the annual budget proposals submitted to the Board, 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 County may determine to not renew and to terminate this
Lease. Notwithstanding this directive regarding the formulation of budget proposals, it is the
intention of the County that any decision to effect an Appropriation for the Base Rentals and
Additional Rentals shall be made solely by the Board in its absolute discretion and not by any other
official of the County, as further provided in the following paragraph. During the Lease Term,the
County shall in any event, whether or not this Lease is to be renewed, furnish the Trustee with
copies of its annual budget promptly after the budget is adopted.
Section 4.03 Notice.
(a) Not later than December 31 of the then current Initial Term or any Renewal
Term the County Representative shall give written notice (in substantially the form set
forth in Exhibit D attached hereto)to the Trustee that either:
(i) the County 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 6.02,6.03 and 6.04 hereof,whereupon,this Lease shall
be renewed for the ensuing Fiscal Year; or
(ii) the County has determined, for any reason, not to renew this Lease
for the ensuing Fiscal Year.
(b) Subject to the provisions of Section 6.07(a) hereof,the failure to give such
notice shall not constitute an Event of Lease Default,nor prevent the County from electing
not to renew this Lease,nor result in any liability on the part of the County. The County's
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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 VI hereof
Section 4.04 Termination of Lease Term.
(a) The Lease Term shall terminate upon the earliest of any of the following
events:
(i) the expiration of the Initial Term or any Renewal Term during which
there occurs an Event of Nonappropriation pursuant to Section 4.03 and Article VI
hereof(provided that the Lease Term will not be deemed to have been terminated
if the Event of Nonappropriation is cured as provided in Section 6.07 hereof);
(ii) the occurrence of an Event of Nonappropriation pursuant to
Section 4.03 (provided that the Lease Term will not be deemed to have been
terminated if the Event of Nonappropriation is cured as provided in Section 6.07
hereof);
(iii) the conveyance of the Trustee's leasehold interest in the Leased
Property under this Lease to the County upon payment of the Purchase Option Price
or all Base Rentals and Additional Rentals, for which an Appropriation has been
effected by the County for such purpose, as provided in Section 11.02 hereof; or
(iv) an uncured Event of Lease Default and termination of this Lease
under Article XIII hereof by the Trustee.
(b) Except for an event described in subparagraph(iii) above,upon termination
of this Lease,the County agrees to peacefully deliver possession of the Leased Property to
the Trustee.
(c) Termination of the Lease Term shall terminate all unaccrued obligations of
the County under this Lease, and shall terminate the County's rights of possession under
this Lease(except to the extent of the holdover provisions of Sections 6.08 and 13.02(c)(i)
hereof, and except for any conveyance pursuant to Article XI hereof). All obligations of
the County accrued prior to such termination shall be continuing until the Trustee gives
written notice to the County that such accrued obligations have been satisfied.
(d) 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 County.
(e) The County shall not have the right to terminate this Lease due to a default
by the Trustee under this Lease.
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ARTICLE V
THE LEASED PROPERTY
Section 5.01 County's Need for the Leased Property. The County has determined and
hereby determines that it has a current need for the Leased Property. It is the present intention and
expectation of the County 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
County pursuant to this Lease; but this declaration shall not be construed as contractually
obligating or otherwise binding the County.
Section 5.02 Determinations as to Fair Value and Fair Purchase Price. The County
has determined and hereby determines that the Base Rentals under this Lease during the Lease
Term for the rental of 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 leasehold interest in the Leased Property at the time of the exercise of the option.
The County has determined and hereby determines that the Base Rentals do not exceed a
reasonable amount so as to place the County under an economic compulsion to renew this Lease
or to exercise its option to purchase the Trustee's leasehold interest in the Leased Property
hereunder. In making such determinations, the County has given consideration to the estimated
current value of the Leased Property, the uses and purposes for which the Leased Property is
currently being utilized by the County,the benefit to the citizens and inhabitants of the County by
reason of the use and occupancy of the Leased Property pursuant to the terms and provisions of
this Lease,the County's option to purchase the Trustee's leasehold interest in the Leased Property, .
and the expected eventual vesting of unencumbered title to the Leased Property in the County.
The County hereby determines and declares that the maximum Lease Term does not exceed the
weighted average useful life of the Leased Property.
ARTICLE VI
PAYMENTS BY THE COUNTY
Section 6.01 Payments to Constitute Currently Budgeted Expenditures of the
County. The County and the Trustee acknowledge and agree that the Base Rentals, Additional
Rentals and any other obligations hereunder shall constitute currently budgeted expenditures of
the County, if an Appropriation has been effected for such purpose. The County'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 IV and Sections 6.02 and 6.04 hereof),shall extend
only to moneys for which an Appropriation has been effected by the County, 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 County or a general obligation or other indebtedness of the
County within the meaning of any constitutional, 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 County 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 County to make any payments beyond those for which an Appropriation has
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been effected by the Board for the County's then current Fiscal Year. The County 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 County moneys(other than moneys for which an Appropriation has been effected
by the Board for the County's then current Fiscal Year), nor shall any provision of this Lease
restrict the future issuance of any County bonds or obligations payable from any class or source
of County moneys (provided, however, that certain restrictions in the Indenture shall apply to the
execution and delivery of Additional Certificates).
Section 6.02 Base Rentals.
(a) The County shall pay Base Rentals for which an Appropriation has been
effected by the County, 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 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 hereto sets forth the Interest Portion of each
payment of Base Rentals for the Certificates. The County 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 County 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.
(b) 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. The
Trustee may conclusively rely upon such revised Exhibit C and has no duty to make any
independent investigation in connection therewith.
Section 6.03 Purchase Option Price. The County 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 XI hereof. The County may also, at any time during the Lease Term, (1) prepay any
portion of the Base Rentals due under this Lease and (2) in connection with such prepayment,
recalculate the Base Rentals set forth in Exhibit C. Any such revised Exhibit C shall be prepared
by the County Representative and delivered to the Trustee. The County shall give the Trustee
notice of its intention to exercise either of such options not less than 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 County 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 County shall continue to pay Base Rentals which have been specifically appropriated
by the Board for such purpose as if no such notice had been given. The Trustee may waive the
right to receive 45 days advance notice and may agree to a shorter notice period.
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Section 6.04 Additional Rentals.
(a) All Additional Rentals shall be paid by the County 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, including any Rebate Fund payments required
pursuant to this Lease and the Indenture. All of the payments required by this paragraph
are subject to Appropriation by the County; provided,however, a failure by the County to
budget and appropriate moneys for any of the payments required by this paragraph shall
constitute an Event of Nonappropriation.
(b) If the County's estimates of Additional Rentals for any Fiscal Year are not
itemized in the budget required to be furnished to the Trustee under Section 4.02 hereof,
the County shall furnish an itemization of such estimated Additional Rentals to the Trustee
on or before the December 31 preceding such Fiscal Year.
Section 6.05 Manner of Payment. The Base Rentals, for which an Appropriation has
been effected by the County, and, if paid, the Purchase Option Price, shall be paid or prepaid by
the County to the Trustee at its designated 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.
Section 6.06 County's Obligation.The obligation of the County to pay the Base Rentals
and Additional Rentals as required under this Article VI and other sections hereof in any Fiscal
Year for which an Appropriation has been effected by the County 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 County 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
County's obligation hereunder as set forth in Section 6.1 hereof,and further subject to the County's
rights under Section 9.3 hereof.. Notwithstanding any dispute between the County and the Trustee,
the County 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 County, pending final resolution of such dispute
(except to the extent permitted by Sections 7.03 and 8.04 hereof with respect to certain Additional
Rentals), nor shall the County 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 County's obligation to pay all Base Rentals and Additional Rentals, for which a specific
Appropriation has been effected by the County for such purpose, in such Fiscal Years subject to
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this Article(except to the extent provided by Sections 7.03 and 8.04 hereof with respect to certain
Additional Rentals).
Section 6.07 Nonappropriation.
(a) In the event that the County gives notice that it intends to not renew this
Lease as provided by Section 4.03 hereof or the County 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 4.02 hereof and this Article, or in the event that the County is
proceeding under the provisions of Section 9.03(a) hereof(when applicable), an Event of
Nonappropriation shall be deemed to have occurred; subject, however, to each of the
following provisions:
(i) In the event the Trustee does not receive the written notice provided
for by Section 4.03 hereof or evidence that an Appropriation has been effected by
the County on or before December 31 of a Fiscal Year, then the Trustee shall
declare an Event of Nonappropriation on or before the January 15 of the following
Fiscal Year or such declaration shall be made on any earlier date on which the
Trustee receives official, specific written notice from the County that this Lease
will not be renewed; provided that the Trustee's failure to declare an Event of
Nonappropriation on such date shall not be construed as a waiver of the Event of
Nonappropriation or the consequences of an Event of Nonappropriation under this
Lease. In order to declare an Event of Nonappropriation, the Trustee shall send
written notice thereof to the County.
(ii) The Trustee shall waive any Event of Nonappropriation that is cured
by the County within 30 days of the receipt by the County of notice from the Trustee
as provided in (i) 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.
(iii) Pursuant to the terms of the Indenture, the Trustee may waive any
Event of Nonappropriation which is cured by the County within a reasonable time
with the procedure described in(ii) above.
(b) 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 90 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 County to such effect (subject to waiver
by the Trustee as provided in Section 6.07(a)(ii) above).
(c) If an Event of Nonappropriation occurs, the County shall not be obligated
to make payment of the Base Rentals or Additional Rentals or any other payments provided
for herein which accrue after the last day of the Initial Term or any Renewal Term during
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which such Event of Nonappropriation occurs; provided, however, that, subject to the
limitations of Sections 6.01 and 13.03 hereof, the County shall continue to be liable for
Base Rentals and Additional Rentals allocable to any period during which the County shall
continue to occupy, use or retain possession of the Leased Property.
(d) Subject to any waiver by the Trustee as provided in Section 6.07(a)(ii)
above,the County 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.
(e) 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.
(f) The County acknowledges that, upon the occurrence of an Event of
Nonappropriation(i)the Trustee shall be entitled to all moneys then being held in all funds
created under the Indenture(except the Rebate Fund and any defeasance escrow accounts)
to be used as described therein and(ii) 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.
Section 6.08 Holdover Tenant. If the County 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 13.02(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
County without the written permission of the Trustee shall be at sufferance. The amount of rent
to be paid monthly during any period when the County is deemed to be a holdover tenant will be
equal to(a)one-sixth 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 6.09 Prohibition of Adverse Budget or Appropriation Modifications. To the
extent permitted by law, the County 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 County's
ability to meet its obligation to pay Base Rentals and duly budgeted and appropriated Additional
Rentals hereunder.
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ARTICLE VII
SITE LEASE; TITLE TO LEASED PROPERTY; LIMITATIONS ON
ENCUMBRANCES
Section 7.01 Site Lease. At the time of the execution and delivery of this Lease, the
County shall have leased to the Trustee, and the Trustee shall have leased from the County, the
Leased Property pursuant to the Site Lease. As further provided in Section 6.02 hereof,a leasehold
interest in the Leased Property shall be held by the Trustee, subject to this Lease.
Section 7.02 Title to the Leased Property. At all times during the Lease Term, title to
the Leased Property shall remain in the County, subject to the Site Lease,this Lease,the Indenture
and any other Permitted Encumbrances,notwithstanding any provisions to the contrary in the Site
Lease, this Lease or the Indenture. Except personal property purchased by the County at its own
expense pursuant to Section 8.02 hereof, a leasehold estate in the Leased Property and any and all
additions and modifications thereto and replacements thereof shall be held in the name of the
Trustee, subject to this Lease, the Site Lease and the Indenture, until liquidated, conveyed or
otherwise disposed of as provided in Section 7.02 of the Indenture or Article XI hereof, or until
termination of the Site Lease,notwithstanding(i)the occurrence of an Event of Nonappropriation;
(ii) the occurrence of one or more Events of Lease Default; (iii) the occurrence of any event of
damage, destruction, condemnation, or construction, manufacturing, or design defect, breach of
warranty or title defect,; or (iv)the violation by the Trustee of any provision of this Lease or the
Site Lease. The Trustee shall not, in any way, be construed as the owner of the Leased Property.
Section 7.03 Title Insurance. Concurrently with the execution and delivery of this
Lease, the Trustee shall be provided with one or more commitments for one or more standard
Leasehold Owner's title insurance policies issued to the Trustee, insuring the Trustee's leasehold
interest in the Leased Property, subject only to Permitted Encumbrances, in an aggregate amount
not less than the aggregate principal amount of the Certificates, or such lesser amount as shall be
the maximum insurable value of the Leased Property.
Section 7.04 No Encumbrance,Mortgage or Pledge of the Leased Property. Except
as may be permitted by this Lease, the County shall not permit any mechanic's or other lien to be
established or remain against the Leased Property; provided that, if the County shall first notify
the Trustee of the intention of the County to do so, the County 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 County that, in the opinion of
Counsel, by nonpayment of any such items the Trustee's leasehold 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 County 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 County 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 County 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.
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ARTICLE VIII
MAINTENANCE; TAXES; INSURANCE AND OTHER CHARGES
Section 8.01 Maintenance of the Leased Property by the County. Subject to its right
to not appropriate and as otherwise provided in Section 9.03 hereof, the County agrees that at all
times during the Lease Term,the County 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 8.02 Modification of the Leased Property.
(a) The County shall have the privilege of making additions,modifications and
improvements to the Leased Property, at its own cost and expense, as appropriate and any
such additions, modifications and improvements to the Leased Property shall be the
property of the County, subject to the Site Lease,this Lease and the Indenture and shall be
included under the terms of the Site Lease, 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 County (except to the extent of subleasing
permitted under Section 12.02 hereof) or cause the County to violate its tax covenant in
Section 10.04 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.
(b) The County shall have the right to make substitutions to the Leased Property
upon compliance with the provisions set forth in Section 8.08 hereof.
Section 8.03 Installation of Furnishings and Machinery of the County. The County
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 County 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, in the event that the
Trustee shall reasonably determine that the Leased Property would be materially damaged or
impaired by the removal of such machinery, equipment, or other tangible property.
Section 8.04 Taxes,Other Governmental Charges and Utility Charges.
(a) 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
County 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 County shall
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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 County
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 leasehold interests of the
Trustee), or the rentals and revenues derived therefrom or hereunder. The County 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.
(b) The County 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 County 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 8.05 Provisions For Liability and Property Damage Insurance.
(a) Upon the execution and delivery of this Lease and until the Lease Term is
terminated pursuant to Section 4.02 hereof, the County shall, at its own expense, cause
casualty and property damage insurance to be carried and maintained with respect to the
Leased Property in an amount at least equal to the estimated replacement cost of the Leased
Property. Such insurance policy or policies may have a deductible not to exceed$150,000.
The County may, in its discretion, insure the Leased Property under blanket insurance
policies which insure not only the Leased Property, but other buildings and equipment as
well, as long as such blanket insurance policies comply with the requirements hereof. If
the County shall insure against similar risks by self-insurance, the County 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 as provided by applicable
law or through the Colorado Counties Casualty and Property Pool("CAPP"). If the County
shall elect to self-insure or insure through CAPP,the County Representative shall annually
furnish to the Trustee a certification of the adequacy of the County's reserves.
(b) Upon the execution and delivery of this Lease and until the Lease Term is
terminated pursuant to Section 4.02 hereof, the County 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 County in connection with the use of the Leased
Property,in an amount not less than the limitations provided in the Colorado Governmental
Immunity Act (Section 24-10-101, et. seq., C.R.S. as now or hereafter amended). Such
insurance may contain deductibles and exclusions deemed reasonable by the Board. The
public liability insurance required by this Section may be by blanket insurance policy or
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policies. If the County shall insure against similar risks by self-insurance, the County, 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 as provided by applicable law or
through CAPP. If the County shall elect to self-insure, the County Representative shall
annually furnish to the Trustee a certification of the adequacy of the County's reserves.
(c) 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 County and the Trustee, as their respective interests may appear. All insurance
policies issued pursuant to this Section, or certificates evidencing such policies, shall be
deposited with the Trustee. No employee of the County shall have the power to adjust or
settle any loss with respect to the Leased Property that reduces the value of the Leased
Property in excess of$110,000, whether or not covered by insurance, without the prior
written consent of the Trustee.
Section 8.06 Advances. If the County 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 County agrees to reimburse the Trustee to the extent
permitted by law and subject to Appropriation as provided under Article VI hereof.
Section 8.07 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
County, (a) grant or enter into easements, permits, licenses, party walls, and other agreements,
rights-of-way(including the dedication of public roads)and other rights or privileges in the nature
of easements, permits, licenses, 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 the Indenture and any security
interest or other encumbrance created hereunder or thereunder; (b) release existing easements,
permits, licenses,party walls,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
County 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.
Section 8.08 Release and Substitution of Leased Property. So long as no Event of
Lease Default or Event of Nonappropriation shall have occurred and be continuing, the County
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 County Representative
requesting such release and substitution, provided that:
(a) such Replacement Property shall have an equal or greater value and utility
(but not necessarily the same function) to the County as the Leased Property proposed to
be released, as determined by a certificate from the County to that effect;
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(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. Appraisals of the fair market value of the portion of the Leased
Property to be released and the Replacement Property, respectively, shall be prepared by
an independent real estate appraiser who is member of the American Institute of Real Estate
Appraisers (MAI) and submitted by the County to the Trustee;
(c) an opinion of Special Counsel is delivered to the County and the Trustee to
the effect that such substitution is permitted by this Lease and will not cause the County to
violate its covenant set forth in Section 10.04 hereof;
(d) the substituted property is at least as essential to the County as the property
for which it was substituted;
(e) a title insurance policy,an amendment,or supplement to a previously issued
title insurance policy or a commitment to issue such a policy, amendment, or supplement
is delivered to the Trustee and the County that would allow the County to comply with the
requirements set forth in Section 7.02 hereof;
(f) the useful life of the Replacement Property extends to or beyond the final
maturity of the Certificates as determined by a certificate from the County to that effect;
and
(g) 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 County in implementing the County's rights to release
and substitute property pursuant to this Section 8.08 and shall execute any and all conveyances,
releases,or other documents necessary or appropriate in connection therewith. The County agrees
that any cash paid to the Trustee pursuant to the provisions of this Section 8.08 shall be used to
redeem or defease Outstanding Certificates.
ARTICLE IX
DAMAGE,DESTRUCTION AND CONDEMNATION; USE OF NET PROCEEDS
Section 9.01 Damage,Destruction and Condemnation. The County shall be obligated
to continue to pay Base Rentals and Additional Rentals(subject to Article VI hereof)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 any
portion thereof, or the estate or any interest of the County or the Trustee in the Leased
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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.
Section 9.02 Obligation to Repair and Replace the Leased Property.
(a) The County 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 held by the Trustee.
All Net Proceeds so deposited shall be applied to the prompt repair, restoration,
modification, improvement or replacement of the Leased Property by the County, upon
receipt by the Trustee of requisitions signed by the County Representative stating with
respect to each payment to be made:
(I) the requisition number;
(ii) the name and address of the person, firm or entity to whom payment
is due;
(iii) the amount to be paid; and
(iv) 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.
(b) The County and the Trustee 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 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 County,to:
(I) add to, modify or alter the Leased Property or add new components
thereto, or
(ii) prepay the Base Rentals with a corresponding adjustment in the
amount of Base Rentals payable under Exhibit C to this Lease or
(iii) accomplish a combination of(i)and(ii).
(c) The Trustee may rely conclusively on any such certificate and shall not be
required to make any independent investigation in connection therewith. The execution of
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any requisition certificate by the County shall constitute, unto the Trustee, an irrevocable
determination that all conditions precedent to the payments requested have been
completed.
(d) 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 the property of the County, subject to the Site Lease, this Lease and the
Indenture and shall be included as part of the Leased Property under this Lease.
Section 9.03 Insufficiency of Net Proceeds.
(a) If the Net Proceeds are insufficient to pay in full the cost of any repair,
restoration, modification, improvement or replacement of the Leased Property required
under Section 9.02 hereof, the County may elect to:
(i) complete the work or, with the written consent of the Trustee,
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 County 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
County agrees that, if by reason of any such insufficiency of the Net Proceeds
allocable to the Leased Property, the County shall make any payments pursuant to
the provisions of this paragraph, the County shall not be entitled to any
reimbursement therefor from the Trustee, nor shall the County be entitled to any
diminution of the Base Rentals and Additional Rentals, for which a specific
Appropriation has been effected by the County for such purpose, payable under
Article VI hereof; or
(ii) apply the Net Proceeds allocable to the Leased Property to the
payment of the Purchase Option Price in accordance with Article XI hereof. In the
event of an insufficiency of the Net Proceeds for such purpose, the County shall,
subject to the limitations of Section 6.01 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 County); 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
County in the same manner as set forth in Section 9.02 hereof; or
(iii) if the County does not timely budget and appropriate sufficient
funds to proceed under either (i) or (ii) above, an Event of Nonappropriation will
be deemed to have occurred and, subject to the County's right to cure, the Trustee
may pursue remedies available to it following an Event of Nonappropriation.
(b) The above referenced election shall be made by the County within 90 days
of the occurrence of an event specified in Section 9.01 hereof It is hereby declared to be
the County's present intention that, if an event described in Section 9.01 hereof should
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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 County
would use its best efforts to proceed under either paragraph(a)or paragraph(b)above;but
it is also acknowledged that the County 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 County.
Section 9.04 Cooperation of the Trustee. The Trustee shall cooperate fully with the
County, at the expense of the County, in filing any proof of loss with respect to any insurance
policy or performance bond covering the events described in Section 9.01 hereof 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,or prospective or pending condemnation
proceeding with respect to the Leased Property without the written consent of the County.
ARTICLE X
DISCLAIMER OF WARRANTIES; OTHER COVENANTS
Section 10.01 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 COUNTY HEREBY ACKNOWLEDGES AND DECLARES THAT THE
COUNTY 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 County to discharge such responsibility,the Trustee
constitutes and appoints the County as its attorney in fact for the purpose of asserting and
enforcing, at the sole cost and expense of the County, all contractor's and 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 or consequential damage in connection
with or arising out of this Lease or the existence, furnishing, functioning or use by the County 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 resulted from the
negligence, bad faith or intentional misconduct of the Trustee.
Section 10.02 Further Assurances and Corrective Instruments. The Trustee and the
County 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.
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Section 10.03 Compliance with Requirements. During the Lease Term,the County and
the Trustee shall observe and comply promptly to the extent possible with all applicable law
governing the Leased Property, and all current and future requirements of all insurance companies
writing policies covering the Leased Property.
Section 10.04 Tax Covenants.
(a) The County acknowledges that the moneys in all funds and accounts
expected to be created under the Indenture are to be invested or deposited by the Trustee,
at the written direction of the County.
(b) The County covenants for the benefit of the Owners of the Certificates that
it will not take any action or omit to take any action with respect to the Certificates, the
proceeds thereof, any other funds of the County or any facilities financed or refinanced
with the proceeds of the Certificates (except for the possible exercise of the County's right
to terminate this Lease as provided herein) if such action or omission (i) would cause the
interest portion of payments made by the County under this Lease and received by the
Owners of the Certificates (the "Certificate Interest Portion") to lose its exclusion from
gross income for federal income tax purposes under Section 103 of the Tax Code, or (ii)
would cause the Certificate Interest Portion to lose its exclusion from alternative minimum
taxable income as defined in Section 55(b)(2) of the Tax Code, or (iii) would cause the
Certificate Interest Portion to lose its exclusion from State taxable income or to lose its
exclusion from State alternative minimum taxable income under present State law. Subject
to the County's right to terminate this Lease as provided herein, the foregoing covenant
shall remain in full force and effect, notwithstanding the payment in full or defeasance of
the Certificates,until the date on which all obligations of the County in fulfilling the above
covenant under the Tax Code and Colorado law have been met.
(c) In addition,the County covenants that its direction of investments pursuant
to Article V of the Indenture shall be in compliance with the procedures established by the
Tax Certificate to the extent required to comply with its covenants contained in the
foregoing provisions of this Section. The County hereby agrees that, to the extent
necessary, it will, during the Lease Term,pay to the Trustee such sums as are required for
the Trustee to pay the amounts due and owing to the United States Treasury as rebate
payments. Any such payment shall be accompanied by directions to the Trustee to pay
such amounts to the United States Treasury. Any payment of County moneys pursuant to
the foregoing sentence shall be Additional Rentals for all purposes of this Lease.
(d) A County Representative is authorized to execute the Tax Certificate in
connection with the execution and delivery of this Lease, which Tax Certificate shall
provide further details in respect of the County's tax covenants herein. The County
covenants that it will comply with the provisions of the Tax Certificate, which is
incorporated herein as if fully set forth herein. These covenants shall survive payment in
full or defeasance of the Certificates.
(e) The County shall not, directly or indirectly, use or permit the use of
proceeds of the Certificates or any portion thereof,by any person other than a governmental
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unit(as such term is used in Section 141 of the Tax Code), in such manner or to such extent
as would result in the loss of exclusion from gross income for federal income tax purposes
of the Certificate Interest Portion. The County shall not take any action, or fail to take any
action, if such action or failure to take action would cause the Certificates to be "private
activity bonds" within the meaning of Section 141 of the Tax Code, and in furtherance
thereof, shall not make any use of the proceeds of the Certificates or any of the property
financed or refinanced with proceeds of the Certificates, or any portion thereof, or any
other funds of the County, that would cause the Certificates to be"private activity bonds"
within the meaning of Section 141 of the Tax Code.To that end,so long as any Certificates
are outstanding, the County, with respect to such proceeds and property and such other
funds, will comply with applicable requirements of the Tax Code and all regulations of the
United States Department of Treasury issued thereunder and under Section 103 of the
Internal Revenue Code of 1954, as amended (the "1954 Code"), to the extent such
requirements are, at the time, applicable and in effect. The County shall establish
reasonable procedures necessary to ensure continued compliance with Section 141 of the
Tax Code (or, if applicable, the 1954 Code) and the continued qualification of the
Certificates as "governmental bonds."
Section 10.05 Undertaking to Provide Ongoing Disclosure. The County covenants for
the benefit of the Owners of the Certificates to comply with the terms of the Continuing Disclosure
Agreement, provided that a failure of the County to do so shall not constitute an Event of Lease
Default. The Trustee shall have no power or duty to enforce this Section. Unless otherwise
required by law,no Certificate owner shall be entitled to damages for the County's non-compliance
with its obligations under this Section.
Section 10.06 Covenant to Reimburse Legal Expenses and Immunity. In the exercise
of the powers of the Trustee by its directors, members, officers, employees and agents under this
Lease and the Indenture, including(without limiting the foregoing)the application of moneys and
the investment of funds,the Trustee shall not be accountable to the County for any action taken or
omitted with respect to this Lease by it or its directors, members, officers, employees and agents
reasonably believed by it or them to be authorized or within the discretion or rights or powers
conferred under this Lease. The Trustee and its directors,members,officers,employees and agents
shall be protected in its or their actions taken in reliance upon any paper or documents believed by
it or them to be genuine and consistent with their rights or powers under this Lease, and it or they
may conclusively rely upon the opinion or advice of Counsel and may(but need not)require further
evidence of any fact or matter before taking any action. No recourse shall be had by the County
for any claims based on the Site Lease, the Indenture or this Lease against any director, member,
officer, employee or agent of the Trustee alleging personal liability on the part of such person.
To the extent permitted by law and subject to Appropriation by the Board,the County shall
defend and hold harmless the Trustee against claims arising from the alleged negligent acts or
omissions of the County's public employees, which occurred or are alleged to have occurred
during the performance of their duties and within the scope of their employment. Such claims
shall be subject to the limitations of the Colorado Governmental Immunity Act, (Section 24-10-
101,et.seq.,C.R.S.as now or hereafter amended).The County shall include as Additional Rentals,
the reimbursement of reasonable and necessary expenses incurred by the Trustee to defend them
from and against all claims, by or on behalf of any person, firm, corporation or other legal entity
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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 County, or from any condition of
the Leased Property caused by the County. This duty to reimburse the legal expenses is not an
indemnification and it is expressly understood that the County 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.
Subject to the limitations of Section 6.01 hereof and subject to Appropriation by the Board,
to the extent permitted by law, the County further agrees to reimburse the Trustee for any and all
claims, demands,judgments, penalties, liabilities, costs, damages and expenses, including court
costs and attorneys' fees directly or indirectly incurred by the Trustee in any action against or
involving the Trustee, resulting from any breach of the environmental covenants in Section 9.10
or from the discovery of any Hazardous Substance, in, upon, under or over, or emanating from,
the Leased Property.
Section 10.07 Access to the Leased Property; Right to Inspect Books. The County
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 County for security
purposes) and all of the County's books and records with respect thereto, and to take such
memoranda from and in regard thereto as may be desired, but the Trustee has no duty to inspect
the Leased Property books or records. The County 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 County to perform its obligations
under this Lease. The Indenture allows the County 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 County 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 10.08 County's Obligations under the Indenture; Acknowledgment of the
Certificates. Subject to appropriation and to the extent permitted by law, the County covenants
and agrees to comply with any applicable covenants, provisions and obligations set forth in the
Indenture. The County acknowledges and consents to the execution and delivery and sale of the
Certificates pursuant to the Indenture and the forms of the Certificates contained in the Indenture.
ARTICLE XI
PURCHASE OPTION
Section 11.01 Purchase Option.
(a) The County shall have the option to purchase the Trustee's leasehold
interest in the Leased Property at any time, but only if an Event of Lease Default or an
Event of Nonappropriation has not occurred and is then continuing. The County may
exercise its option on any date by paying to the Trustee the Purchase Option Price and
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complying with other requirements of this Section and one of the condition set forth in
Section 11.02 hereof.
(b) The County shall give the Trustee notice of its intention to exercise its
option not less than 45 days in advance of the date of exercise and shall deposit 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.
(c) If the County shall have given notice to the Trustee of its intention to
purchase the Trustee's leasehold interest in the Leased Property or prepay Base Rentals,
but shall not have deposited the amounts with the Trustee on the date specified in such
notice, the County shall continue to pay Base Rentals, which have been specifically
appropriated by the County for such purpose, as if no such notice had been given.
Section 11.02 Conditions for Purchase Option.
(a) The Trustee shall transfer and release the Trustee's leasehold interests in the
Leased Property to the County in the manner provided for in Section 11.03 hereof;
provided, however,that prior to such transfer and release, either:
(i) the County shall have paid the then applicable Purchase Option
Price which shall equal the sum of the amount necessary to defease and discharge
the Indenture as provided therein (i.e., provision for payment of all principal and
interest portions of any and all Certificates which may have been executed and
delivered pursuant to the Indenture shall have been made in accordance with the
terms of the Indenture) plus any fees and expenses then owing to the Trustee,
subject to compliance with all conditions to the defeasance of the Certificates under
the Indenture; or
(ii) the County shall have paid all Base Rentals set forth in Exhibit C
hereof,for the entire maximum Lease Term,and all then current Additional Rentals
required to be paid pursuant to this Lease.
(b) At the County's option,amounts then on deposit in any fund held under the
Indenture (except the Rebate Fund and excluding any defeasance escrow funds) may be
credited toward the Purchase Option Price.
Section 11.03 Manner of Conveyance Upon Purchase Option. At the closing of the
purchase or other conveyance of all of the Trustee's leasehold interest in the Leased Property
pursuant to Section 11.02 hereof,the Trustee shall release and terminate the Site Lease,this Lease
and the Indenture and execute and deliver to the County any necessary documents releasing,
assigning, transferring and conveying the Trustee's leasehold interest in the Leased Property, as
they then exist, subject only to the following:
(a) Permitted Encumbrances, other than the Site Lease, this Lease and the
Indenture;
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(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 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) any lien or encumbrance created or suffered to exist by action of the County;
and
(d) those liens and encumbrances (if any)to which title to the Leased Property
was subject when leased to the Trustee.
Section 11.04 Conveyance at the End of Maximum Lease Term. If all Base Rentals
scheduled to be paid through the entire maximum Lease Term (as set forth in Exhibit C), all
Additional Rentals payable through the date of conveyance of the Leased Property to the County
pursuant to this Article have been paid, all of the Certificates have been paid in full in accordance
with the Indenture and all other amounts payable pursuant to the Indenture and this Lease have
been paid, the Leased Property that remains subject to this Lease shall be assigned, transferred,
and conveyed to the County at the end of the entire Lease Term in the manner described in
Section 11.03 hereof without any additional payment by the County.Release of Portions of
Leased Property. When the principal component of Base Rentals paid by the County, plus the
principal amount of any Certificates redeemed through optional redemption, or the total principal
amount of Certificates paid or deemed to be paid pursuant to Article VI of the Indenture, equals
the amount set forth in Exhibit E hereto, the cost of the corresponding portion of the Leased
Property set forth in Exhibit E (or of any property substituted for such portion of the Leased
Property pursuant to any provision of this Lease) shall be deemed to have been fully amortized
and the Trustee shall execute and deliver to the County all documents necessary to release such
portion of the Leased Property from the provisions of the Site Lease and this Lease(or any property
substituted for such portion of the Leased Property pursuant to any provision of this Lease) and
the lien thereon granted to the Trustee pursuant to the Indenture. Notwithstanding the foregoing,
the Eagle County Building Property,as described in Exhibit A hereto(or any property substituted
for such portion of the Leased Property pursuant to any provision of this Lease) shall not be
released from the provision of the Site Lease, this Lease and the Indenture before the Health and
Human Services Building Property(as described in Exhibit A hereto)is released and the fair value
of the remaining Leased Property must be at least equal to 100%of the aggregate principal amount
of the Certificates then Outstanding, as certified in writing to the Trustee by the County
Representative. Upon such release of a portion of the Leased Property, the Trustee shall execute
and deliver to the County all documents necessary or appropriate to convey the Trustee's leasehold
interest in such portion of the Leased Property to the County, free of all restrictions and
encumbrances imposed or created by this Lease, the Site Lease or the Indenture, in substantially
the manner provided in Section 12.3 hereof. After such release and conveyance, the property so
released and conveyed shall no longer be a part of the Leased Property for any purpose of this
Lease, the Site Lease or the Indenture. The Trustee shall fully cooperate with the County in
executing,delivering and recording,at the County's expense,such documents as may be necessary
to effectuate the provisions of this Section.
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ARTICLE XII
ASSIGNMENT AND SUBLEASING
Section 12.01 Assignment by the Trustee; Replacement of the Trustee.
(a) 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
County which consent shall not be unreasonably withheld. The Trustee will notify the
County of any assignment to a successor by operation of law.
(b) 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 13.02, without the prior written direction of the County.
Section 12.02 Assignment and Subleasing by the County. This Lease may not be
assigned by the County 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 County, without the necessity
of obtaining the consent of the Trustee or any owner of the Certificates subject to each of the
following conditions:
(a) The Leased Property may be subleased, in whole or in part, only to an
agency or department of, or a political subdivision of, the State, or to another entity or
entities if, in the opinion of Special Counsel, such sublease will not adversely affect the
excludability from gross income for federal income tax purposes of the Interest Portion of
the Base Rentals paid by the County under this Lease and attributable to the Certificates;
(b) This Lease, and the obligations of the County hereunder, shall, at all times
during the Lease Term remain obligations of the County,and the County shall maintain its
direct relationships with the Trustee, notwithstanding any sublease;
(c) The County shall furnish or cause to be furnished to the Trustee a copy of
any sublease agreement;
(d) No sublease by the County shall cause the Leased Property to be used for
any purpose which would cause the County to violate its tax covenant in Section 10.04
hereof;
(e) Any sublease of the Leased Property shall provide that it is subject to the
terms and conditions of this Lease and that, except as hereinafter provided, it shall
automatically terminate upon a termination of this Lease; provided, however, that upon a
termination of this Lease due to an Event of Default or an Event of Nonappropriation, the
Trustee may keep any such sublease in full force and effect as a direct lease by the Trustee
to the sublessee; and
(f) The County collaterally assigns any subleases of the Leased Property to the
Trustee subject to the terms of such subleases and upon the occurrence of an Event of Lease
Default or Nonappropriation the Trustee,upon notification to the sublessees, shall have the
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right to demand, collect and receive from the sublessees rents due or to become due and to
otherwise exercise all rights of the County under any sublease and such subleases shall be
subject to the terms of the Site Lease.
ARTICLE XIII
EVENTS OF LEASE DEFAULT AND REMEDIES
Section 13.01 Events of Lease Default Defined.
(a) Any one of the following shall be Events of Lease Default under this Lease:
(i) failure by the County to pay any Base Rentals or Additional Rentals,
which have been specifically appropriated by the County for such purpose, during
the Initial Term or any Renewal Term,within 15 days of the date on which they are
due; or
(ii) subject to the provisions of Section 6.08 hereof, failure by the
County 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
(iii) failure by the County to observe and perform any covenant,
condition or agreement on its part to be observed or performed hereunder, other
than as referred to in (i) or (ii) (other than a failure to comply with Section 11.06
hereof), for a period of 30 days after written notice, specifying such failure and
requesting that it be remedied shall be received by the County 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, in the Trustee's reasonable judgment, corrective action can be
instituted by the County within the applicable period and diligently pursued until
the default is corrected; or
(iv) failure by the County to comply with the terms of the Site Lease.
(b) The foregoing provisions of this Section are subject to the following
limitations:
(i) the County shall be obligated to pay the Base Rentals and Additional
Rentals,which have been specifically appropriated by the County 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 County shall be unable in whole
or in part to carry out any agreement herein contained other than the County's
agreement to pay the Base Rentals and Additional Rentals due hereunder, the
County shall not be deemed in default during the continuance of such inability. The
County agrees,however,to remedy,as promptly as legally and reasonably possible,
the cause or causes preventing the County from carrying out its agreements;
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provided that the settlement of strikes, lockouts and other industrial disturbances
shall be entirely within the discretion of the County.
Section 13.02 Remedies on Default. Whenever any Event of Lease Default shall have
happened and be continuing beyond any applicable cure period, the Trustee may (subject to its
rights and protections under the Indenture), 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:
(a) terminate the Lease Term and give notice to the County to vacate and
surrender possession of the Leased Property, which vacation and surrender the County
agrees to complete within 90 days from the date of such notice; provided, in the event the
County does not vacate and surrender possession on the termination date,the provisions of
Section 6.08 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 Leased
Property;
(c) recover from the County:
(i) the portion of Base Rentals and Additional Rentals, for which a
specific Appropriation has been effected by the County for such purpose, which
would otherwise have been payable hereunder, during any period in which the
County 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 County for such purpose, which would
otherwise have been payable by the County hereunder during the remainder, after
the County 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.
(e) Upon the occurrence of an Event of Nonappropriation, the Trustee shall be
entitled to recover from the County the amounts set forth in Section 13.02(c)(i) hereof if
the County continues to occupy the Leased Property after December 31 of the Fiscal Year
in which such Event of Nonappropriation occurs.
(f) 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 the Rebate Fund or
any defeasance escrow accounts).
Section 13.03 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
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money may be entered against the County by reason of an Event of Lease Default only as to the
County's liabilities described in paragraph (c) of Section 13.02 hereof. A judgment requiring a
payment of money may be entered against the County by reason of an Event of Nonappropriation
only to the extent that the County fails to vacate and surrender possession of the Leased Property
as required by Section 6.07 hereof, and only as to the liabilities described in Section 13.02(c)(i)
hereof. The remedy described in Section 13.02(c)(i) of this Lease is not available for an Event of
Lease Default consisting of failure by the County to vacate and surrender possession of the Leased
Property by March 1 following an Event of Nonappropriation.
Section 13.04 No Remedy Exclusive. Subject to Section 13.03, no remedy herein
conferred upon or reserved to the Trustee, is intended to be exclusive, and every such remedy shall
be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity. No delay or omission to exercise any right or power accruing upon
any default shall impair any such right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as often as may be deemed
expedient. In order to entitle the Trustee to exercise any remedy reserved in this Article, it shall
not be necessary to give any notice, other than such notice as may be required in this Article.
Section 13.05 Waivers. Subject to the terms of the Indenture,the Trustee may waive any
Event of Lease Default under this Lease and its consequences, as the Trustee deems to be in the
best interest of the Certificate owners. 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 County shall not constitute a waiver of any
breach or default by the Trustee hereunder.
Section 13.06 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 County hereunder shall constitute Additional
Rentals for all purposes of this Lease and shall be subject to Appropriation.
Section 13.07 Financial Obligations of Trustee Limited to Available Funds.
Notwithstanding any other provision of this Lease, all financial obligations of the Trustee under
this Lease,except those resulting from its negligence or willful misconduct,are limited to the Trust
Estate.
Section 13.08 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 County 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 County, for themselves and all who may at any time claim through or under
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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 County cannot and
does not hereby waive its right to set up,claim or seek to take advantage of its police powers or its
State constitutional or statutory right of eminent domain.
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Sovereign Powers of County. Nothing in this Lease shall be construed as
diminishing,delegating, or otherwise restricting any of the sovereign powers or immunities of the
County. Nothing in this Lease shall be construed to require the County to occupy and operate the
Leased Property other than as lessee, or to require the County to exercise its right to purchase the
Leased Property as provided in Article XI hereof.
Section 14.02 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 County: Eagle County
500 Broadway, P.O. Box 850
Eagle, Colorado 81631
Attention: County Chief Financial Officer
if to the Trustee: UMB Bank, n.a.
1670 Broadway
Denver, Colorado 80202
Attention: Corporate Trust and Escrow Services
The County 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.
Section 14.03 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 County, 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 County and the Trustee that any
person other than the County, the Trustee, or the Owners of the Certificates receiving services or
benefits under this Lease shall be deemed to be an incidental beneficiary only.
Section 14.04 Binding Effect. This Lease shall inure to the benefit of and shall be binding
upon the Trustee and the County and their respective successors and assigns, subject, however, to
the limitations contained in Article XII hereof.
Section 14.05 Amendments. This Lease may only be amended, changed, modified or
altered as provided in the Indenture.
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Section 14.06 Amounts Remaining in Funds. It is agreed by the parties hereto that any
amounts remaining in the Base Rentals Fund, the Costs of Execution and Delivery Fund, or any
other fund or account created under the Indenture (except the Rebate Fund or 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 County by the Trustee,as an overpayment of Base
Rentals.
Section 14.07 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 County 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 County under
this Lease, for which a specific Appropriation has been effected by the County 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 14.08 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. Notwithstanding the foregoing,Base Rentals shall be recalculated in the event
of any prepayment of Base Rentals as provided in Section 6.02(b) hereof.
Section 14.09 Payments Due on Days other than Business Days. 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 14.10 Severability. Except for the requirement of the County to pay Base Rentals
for which a specific Appropriation has been effected by the County for such purpose and the
requirement of the Trustee to provide quiet enjoyment of the Leased Property and to convey the
Trustee's leasehold interest in the Leased Property to the County under the conditions set forth in
Article XI hereof(which, if held invalid or unenforceable by any court of competent jurisdiction,
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 14.11 Execution in Counterparts. This Lease may be simultaneously executed
in several counterparts, each of which shall be an original and all of which shall constitute but one
and the same instrument.
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Section 14.12 Applicable Law. This 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 14.13 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 14.14 No Individual Liability. All covenants, stipulations, promises,
agreements, and obligations of the County, as the case may be, combined herein shall be deemed
to be the covenants, stipulations, promises, agreements, and obligations of the County, as the case
may be, and not of any member, director, officer, employee, servant, or other agent of the County
in his or her individual capacity, and no recourse shall be had on account of any such covenant,
stipulation, promise, agreement, or obligation (including, without limitation, any obligations
relating to payment of principal of, premium, if any, or interest on the Certificates), or for any
claim based thereon or hereunder,against any commissioner,member,director,officer,employee,
servant, or other agent of the County or any natural person executing this Lease, the Indenture, or
the Site Lease,the Certificates, or any related document or instrument.
Section 14.15 Recitals. The Recitals set forth in this Lease are hereby incorporated by
this reference and made a part of this Lease.
Section 14.16 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 14.17 Trustee's Disclaimer. It is expressly understood and agreed that (a) this
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 14.18 Electronic Transactions. The parties hereto agree that the transaction
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.
Without limiting the foregoing,the parties agree that in the event that any individual or individuals
who are authorized to execute or consent to this Lease on behalf of the County or the Trustee are
not able to be physically present to manually sign this Lease or any supplement or consent relating
thereto,that such individual or individuals are hereby authorized to execute the same electronically
via facsimile or email signature. This agreement by the parties to use electronic signatures is made
pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform Electronic Transactions
Act. Any electronic signature so affixed to this Lease or any supplement or consent relating thereto
shall carry the full legal force and effect of any original,handwritten signature.
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IN WITNESS WHEREOF, the Trustee and a Commissioner of the Board of County
Commissioners of the County has executed this Lease Purchase Agreement for and on behalf of
the County and the Deputy County Clerk and Recorder has attested such signature and affixed the
seal of the County hereto. All of the above are effective as of date first above written.
UMB BANK,N.A., solely in its capacity as
Trustee under the Indenture, as Lessor
By:
Authorized Signatory
EAGLE COUNTY, COLORADO,
as Lessee
By:
Commissioner, Board of County
Commissioners
[SEAL]
ATTESTED:
By:
County Clerk and Recorder
[Signature page to Lease Purchase Agreement]
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STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this [ ]day of August,2021,by
Patricia M. Peters, as Vice President of UMB Bank, n.a., as Trustee.
WITNESS my hand and official seal.
(SEAL)
Notary Public
[Signature page to Lease Purchase Agreement]
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STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this [ ] day of August,2021,by
[ ],as Commissioner of the Board of County Commissioners,and by[ ],
County Clerk and Recorder.
WITNESS my hand and official seal.
(SEAL)
Notary Public
[Signature page to Lease Purchase Agreement]
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EXHIBIT A
DESCRIPTION OF SITE AND LEASED PROPERTY'
Description of Site:
The areas marked in yellow and pink on the map below collectively represent the land(the
"Site") leased by Eagle County, Colorado to UMB Bank, N.A., solely in its capacity as Trustee
under the Indenture of Trust dated as of August 1, 2021 pursuant to that certain Site and
Improvement Lease dated as of August 1, 2021.
Legend:
Yellow Highlight:Health and Human Services
Building Property
J/ '_t / / r,'_ !— Pink Hi.hli.ht:Ea.le Coun Buildin Pro<e '
a ,
4 ' G
K
r
� s roc \ ,.`, •LI
o
/ ';.-
LPN i
/ / . illiiiit. . , - l
aliallall
.emu
L. gi.
11
` ..:..
' Map Attribution: Google.Map data: Landsat/Copernicus. Image date: July 14, 2021.
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Address of Site:
551 Broadway Street,Town of Eagle, Colorado and 500 Broadway Street, Town of Eagle,
Colorado
Description of the Leased Property:
The Leased Property consist of the following two portions:
1. The Health and Human Services Building Property:
The area shown in yellow on the map above consisting of approximately 0.71 acres on
which the Health and Human Services Building and 30 surface parking spaces serving the
Health and Human Services Building are located. The Health and Human Services
Building contains approximately 14,000 square feet and is presently used for public health
and human service functions.
2. The Eagle County Building Property:
The area shown in pink on the map above consisting of approximately 2.165 acres on which
the Eagle County Building and 55 surface parking spaces serving the Eagle County
Building are located. The Eagle County Building contains approximately 27,494 square
feet and presently serves as the main County administrative building with a large
auditorium used for the Board meetings and other public meetings, and which also houses
the offices for the County Clerk and Recorder, County Treasurer and Public Trustee, and
County Assessor, the community development, planning, and engineering departments,
and all internal service departments of the County.
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EXHIBIT B
PERMITTED ENCUMBRANCES
"Permitted Encumbrances"as defined in Section 1.02 of the Lease and also includes the
following: [copy Exhibit B of the final title commitment]
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EXHIBIT C
BASE RENTALS SCHEDULE
Annual
Base Rentals Base Rentals Total Base (fiscal year)
Date Principal Portion Interest Portion Rentals Base Rentals
12/01/20 $ $ $ $
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
06/01/20
12/01/20
TOTAL $ $ $ $
The Interest Portion of the Base Rental are due on June 1 and December 1 of each year
during the Lease Term. The Interest Portion of the Base Rentals has been calculated on the basis
of a 360-day year of twelve 30-day months and any recalculation of Base Rentals under
Section 6.02(b) of the Lease shall be done on the same basis. 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.
Statement Regarding the Leased Property
The duration of the Lease, throughout the Scheduled Lease Term, does not exceed the
weighted average useful life of the Leased Property and, to the extent that the Leased Property
constitutes items of personal property, such items are considered paid from the first Base Rentals
described above.
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EXHIBIT D
FORM OF NOTICE OF LEASE RENEWAL
To: UMB Bank, n.a., as Trustee
Attention: Corporate Trust and Escrow Services
The undersigned is the County Representative of Eagle County, Colorado(the"County").
The County is the lessee under that certain Lease Purchase Agreement,dated as of August 1, 2021
(the "Lease"), between the County 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 County has effected or intends to effect on a timely basis an
Appropriation for the ensuing Fiscal Year which includes(i)sufficient amounts authorized
and directed to be used to pay all the Base Rentals and (ii) sufficient amounts to pay such
Additional Rentals as are estimated to become due,all as further provided in Sections 6.02,
6.03 and 6.04 of the Lease, whereupon, the Lease shall be renewed for the ensuing Fiscal
Year;
Initial
OR
(b) the County has determined not to renew the Lease for the ensuing Fiscal
Year.
Initial
EAGLE COUNTY,COLORADO
By:
County Representative
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EXHIBIT E
RELEASE AND AMORTIZATION SCHEDULE
TOTAL AMOUNTS OF BASE
RENTALS PRINCIPAL
PAYMENTS AND
OPTIONAL PRIOR
REDEMPTIONS WHICH
MUST BE MADE OR OF
CERTIFICATES WHICH
MUST BE PAID OR PORTION OF THE LEASED PROPERTY
DEFEASED, TO RELEASE TO BE RELEASED
(1)
$` Health and Human Services Building
Property(as described in Exhibit A to this
Lease
$ Eagle County Building Property(as
described in Exhibit A to this Lease)
$ All the Leased Property
(1) Pursuant to Section 11.05 of this Lease, when the principal component of Base
Rentals paid by the County, plus the principal amount of Certificates redeemed through
optional redemption,or the total principal amount of Certificates paid or deemed to be paid,
totals the amount set forth in this column,the corresponding portion of the Leased Property
will be deemed amortized and shall be released from the lien of the Site Lease, this Lease
and the Indenture.Notwithstanding the foregoing,the Eagle County Building Property(or
any property substituted for such portion of the Leased Property pursuant to any provision
of this Lease) shall not be released from the provision of the Site Lease,this Lease and the
Indenture before the Health and Human Services Building Property is released and the fair
value of the remaining Leased Property must be at least equal to 100% of the aggregate
principal amount of the Certificates then Outstanding, as certified writing by the County
Representative.
E-1
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Ballard Spahr Draft: 7/15/2021
AFTER RECORDATION PLEASE RETURN TO:
Ballard Spahr LLP
1225 17th Street, Suite 2300
Denver, CO 80202
Attention: Anastasia Khokhryakova, Esq.
Pursuant to Section 39-13-104(1)(j), C.R.S.,this Site Lease is exempt from the documentary fee.
SITE AND IMPROVEMENT LEASE
DATED AS OF AUGUST 1,2021
BETWEEN
EAGLE COUNTY, COLORADO,
AS LESSOR
AND
UMB BANK,N.A.,
SOLELY IN ITS CAPACITY AS TRUSTEE UNDER THE INDENTURE,
AS LESSEE
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This SITE AND IMPROVEMENT LEASE (this "Site Lease"), dated as of August 1,
2021, is by and between the EAGLE COUNTY, COLORADO, a political subdivision duly
organized and existing under the Constitution and laws of the State of Colorado (the "County"),
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, solely in its capacity as trustee
under the Indenture(the"Trustee"), as lessee.
RECITALS
WHEREAS, the County, pursuant to the constitution and laws of the State of Colorado
(the "State"), is a duly organized and validly existing political subdivision of the State, with the
authority, pursuant to Section 30-11-101(1)(c), Colorado Revised Statutes, as amended
("C.R.S."), to lease any real property, together with any facilities thereon, when deemed by the
Board of County Commissioners (the "Board") to be in the best interests of the County and its
inhabitants; and
WHEREAS,the County desires to construct and improve approximately 12 miles of paved
public trail for biking and pedestrian uses from Eagle-Vail to Dotsero (the "Trail"), which Trail,
when completed, will connect to the existing Eagle Valley Trail that spans the County from Vail
Pass to Glenwood Canyon, and which will provide recreation opportunities for the County
residents and visitors; and
WHEREAS, the Board has determined and does hereby determine that it is in the best
interest of the County and its inhabitants and in furtherance of the County's governmental
functions and operations to finance a portion of the costs of the acquisition, construction and
improvement of the Trail, including the acquisition of the real property in connection therewith
(the"Project") and that the provision of the recreation opportunities for which the Project will be
used is a valid governmental purpose; and
WHEREAS, the Board has determined that it is in the best interest of the County and its
inhabitants to provide for the financing of the Project by entering into this Site Lease and the Lease
(as defined herein); and
WHEREAS, the County owns, in fee title, the Site (as defined in the Lease) and the
building and certain improvements located thereon (collectively, as more particularly defined in
the Lease, the "Leased Property"), comprised of(a) the Health and Human Services Building
(containing approximately 14,000 square feet) located at 551 Broadway Street, which is used for
public health and human service functions, together with approximately 0.72 acres of land under
and adjacent to the Health and Human Services Building and 30 surface parking spaces serving
the Health and Human Services Building; and (b) the Eagle County Building (containing
approximately 27,494 square feet), located at 500 Broadway Street, used for the Board meetings,
various County administration offices, such as the offices for the County Clerk and Recorder,
County Treasurer and Public Trustee, and County Assessor, the community development,
planning, and engineering departments, and all internal service departments of the County,
together with approximately 2.165 acres of land under and adjacent to the Eagle County Building
and 55 surface parking spaces serving the Eagle County Building, , all as more particularly
described in Exhibit A attached hereto; and
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WHEREAS, to effectuate the Project, the Trustee will acquire a leasehold interest in the
Leased Property by leasing the Leased Property from the County pursuant to this Site Lease and
will lease the Leased Property back to the County pursuant to the Lease; and
WHEREAS, contemporaneously with the execution and delivery of this Site Lease and
the Lease, the Trustee will execute and deliver an Indenture of Trust dated as of the date hereof
(the "Indenture") pursuant to which there will be executed and delivered the Certificates (as
defined in the Lease); and
WHEREAS, the Certificates will be dated as of their date of delivery, will evidence
proportionate interests in the right to receive certain Revenues (as defined in the Lease), will be
payable solely from the sources therein provided, and shall not directly or indirectly obligate the
County to make any payments beyond those appropriated for any fiscal year during which the
Lease shall be in effect; and
WHEREAS, the net proceeds of the Certificates, together with other available money of
the County, will be used to finance the Project; and
WHEREAS, the Trustee and the County intend that this Site Lease set forth their entire
understanding and agreement regarding the terms and conditions upon which the Trustee is leasing
the Leased Property from the County; and
WHEREAS,the County 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 County pursuant to
the Lease and execute and deliver the Certificates; and
WHEREAS, the Trustee shall prepay in full its rental payments due under this Site Lease
which rental payments shall be used by the County to effectuate the Project, all pursuant to this
Site Lease,the Lease and the Indenture; and
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained,the parties hereto agree as follows;
Section 1. Definitions. Capitalized terms used and not defined in this Site Lease shall
have the meanings ascribed to them in the Lease Purchase Agreement, dated as of August 1,2021
(the "Lease"), between the Trustee, as lessor, and the County, as lessee.
Section 2. Site Lease and Terms. The County hereby demises and leases to the
Trustee and the Trustee hereby leases from the County,on the terms and conditions hereinafter set
forth, the Leased Property, 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, 20( 1 (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 leasehold interests in all of the Leased Property pursuant
to Article XI of the Lease as a result of the County's payment of(a)the applicable Purchase Option
Price thereunder; or(b) all Base Rentals and Additional Rentals, all as further provided in Article
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XI of the Lease, then the term of this Site Lease shall end in connection with such transfer and
conveyance.
In the event that the Lease is terminated and this Site Lease remains in effect, and the
Trustee exercises its remedies pursuant to this Site Lease and the Indenture, then the term of this
Site Lease shall end when the remaining outstanding principal amount of the Certificates, plus
accrued interest thereon, have been paid or provision has been made for such payment, provided
that in the event that the payment of such Certificates has been made from a sale or assignment of
the Trustee's leasehold interest herein, then this Site Lease shall remain in effect in accordance
with the terms and provisions of any such sublease or assignment. Notwithstanding the foregoing
or any provision to the contrary contained herein or in the Indenture, 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 the Site
Lease Termination Date.
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 County any necessary
documents releasing, assigning, transferring and conveying the Trustee's, sublessee's or
assignees' respective interests in the Leased Property.
Section 3. Rental. The Trustee has paid to the County and the County hereby
acknowledges receipt from the Trustee as and for rental hereunder, paid in advance, the sum of
$ , as and for all rent due hereunder, and other good and valuable consideration, the
receipt and the sufficiency of which are hereby acknowledged. The County hereby determines
that such amount is reasonable consideration for the leasing of the Leased Property to the Trustee
for the term of this Site Lease.
Section 4. Purpose. The Trustee shall use the Leased Property solely for the purpose
of leasing the Leased Property back to the County 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 County 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 5. Owner in Fee. The County represents that (a) it is the owner in fee of the
Leased Property, 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 Leased
Property.
Section 6. Sales,Assignments and Subleases. Unless an Event of Nonappropriation
or an Event of Lease Default has occurred and is continuing, and except as may otherwise be
provided in the Lease,the Trustee may not 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 written consent of the
County.
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In the event that the Lease is terminated for any reason and this Site Lease remains in effect,
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 Indenture and the Lease 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
County 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 County, the Trustee, nor
any purchasers from or sublessees or assignees of the Trustee will sell, 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 machinery, equipment, and other tangible property in
or on any portion of the Leased Property. All such machinery, equipment, and other tangible
property shall remain the sole property of the Trustee or such other person; provided, however,
that title to any such machinery, equipment, and other tangible property shall become part of the
Leased Property and be included under the terms of this Site Lease to the extent that(a)any such
machinery,equipment,or other tangible property is permanently affixed to the Leased Property or
(b)the removal of such machinery,equipment, or other tangible property would damage or impair
the Leased Property.
Section 7. Right of Entry, Inspection, Access. To the extent that the Lease is
terminated and this Site Lease is still in effect, the County reserves the right 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 8. Easement; Provision of Utilities.
(a) If any part of the Leased Property, including without limitation walls,
porches, decks, overhanging sunshades, and driveways encroaches or shall hereafter
encroach upon any real property owned by the County and not leased to the Trustee under
this Site Lease (the "Encroached-Upon Property"), subject to the provisions of this
Section, the County hereby grants to the Trustee, and to its agents, employees, licensees,
and business invitees, but only for the term of this Site Lease with respect to the Leased
Property,an easement for the non-exclusive right to use the Encroached-Upon Property for
the purpose of such encroaching portion of the Leased Property and maintenance of same.
(b) The County agrees to provide the Leased Property with all gas, water,
steam, electricity, heat, power, and other utilities provided by the County to the Leased
Property on the date hereof on a continuous basis except for periods of repair. The County
shall be entitled to reimbursement for its actual and reasonable costs incurred in providing
such utilities, determined in a fair and reasonable manner based on the use of such utilities
by the Leased Property or portions thereof, the operational, maintenance, and repair costs
of such utilities elements and any costs to acquire or relocate any easements or lines relating
to or used in connection with the operation of such utilities elements and any costs to
acquire or relocate any easements or lines relating to or used in connection with the
operation of such utilities.
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Section 9. 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 10. 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 (unless
the County consents in writing to an extension of such time period), the County 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, and the Base Rentals and Additional Rentals due under the Lease shall
continue to be paid to the Trustee except as otherwise provided in the Lease. The liability of the
Trustee under this Site Lease shall be limited as provided in Section 12 herein. In addition,so long
as any of the Certificates are Outstanding, this Site Lease shall not be terminated except as
described in Section 2 hereof.
Section 11. 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 this Site Lease, the Lease and the Indenture.
Section 12. 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 and other sources identified in Section 13 with respect to payment of insurance.
Section 13. Taxes;Maintenance; Insurance. During the Lease Term of the Lease and
in accordance with the provisions of the Lease, including Sections 9.01 and 9.02 thereof, the
County 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
the Leased Property. In the event that the Lease is terminated for any reason and this Site Lease
is not terminated, 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(i)the proceeds of such sale, subleasing or assignment, (ii)from
the Trust Estate, or(iii) 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 (i) through
(iii), 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 the Lease is terminated for any
reason and this Site Lease is not terminated, the Trustee, or any sublessee, purchaser or assignee
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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 the limitations provided in the Colorado Governmental
Immunity Act (Article 10, Title 24, C.R.S., as hereafter amended) and (ii) property insurance in
an amount not less than the full replacement value of the improvements and structure constituting
Leased Property. Any such insurance that is to be obtained by the Trustee shall be paid for 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 obtain or keep in force such insurance coverages. All such insurance shall name
the Trustee, any sublessee, purchaser or assignee and the County as insured. The Trustee shall
also be named as loss payee. The County and the Trustee shall waive any rights of subrogation
with respect to the Trustee, any sublessee, purchaser or assignee, and the County, 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.
Section 14. 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
are 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 County 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 IX of the Lease as if such provisions were
fully set forth herein.
Section 15. Hazardous Substances. Except for customary materials necessary for the
operation, cleaning and maintenance of the Leased Property, none of the County, 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 County and the Trustee and all Hazardous
Substances, including,customary materials necessary for the 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, provided that, 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 Leased
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 County, 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 County, 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 County, 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
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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 County, shall be payable only if the cost of such defense has been annually
appropriated by the County. This duty to reimburse legal expenses is not an indemnification. It
is expressly understood that none of the County, 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 is 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 County 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 County,results in any contamination of the Leased Property,the County
shall provide prior written notice to the Trustee and promptly take all actions, solely at the
expense of the County, which expenses shall constitute Additional Rentals, as are
necessary to effect remediation of the contamination in accordance with legal
requirements.
Section 16. Third Party Beneficiaries. 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 expressly understood and agreed that the Owners of the
outstanding Certificates are third party beneficiaries to this Site Lease and 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 County, as Lessor, and the Trustee, as Lessee, and their respective
successors and assigns, and to the Owners of the Certificates. It is the express intention of the
County and the Trustee that any person other than the County, 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 17. Amendments. This Lease may only be amended, changed, modified, or
altered with the prior written consent of the County and the Trustee and in accordance with the
provisions of the Indenture.
Section 18. 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.
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Section 19. No Merger. The County 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 County nor the exercise of any remedies under this Site Lease or
the Lease shall operate to terminate or extinguish this Site Lease or the Lease,except as specifically
provided herein and therein.
Section 20. 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 County or the Trustee, as the case may be.
Section 21. Recitals. The Recitals set forth in this Site Lease are hereby incorporated
by this reference and made a part of this Site Lease.
Section 22. 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 23. 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 24. 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 25. No Waiver of Governmental Immunity. No provision of this Site Lease
shall act or be deemed to be a waiver by the County of the Colorado Governmental Immunity Act,
CRS 24-10-101,et seq.
Section 26. Annual Appropriation. Consistent with Article X, §20 of the Colorado
Constitution, any financial obligation of the County 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 County's obligations under this Site Lease are
deemed to constitute a multiple fiscal-year financial obligation,the County's performance will be
conditioned upon annual appropriation by the Board, in its sole discretion.
Section 27. Electronic Transactions. The parties hereto agree that the transaction
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.
Without limiting the foregoing,the parties agree that in the event that any individual or individuals
who are authorized to execute or consent to this Site Lease on behalf of the County or the Trustee
are not able to be physically present to manually sign this Site Lease or any supplement or consent
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relating thereto, that such individual or individuals are hereby authorized to execute the same
electronically via facsimile or email signature. This agreement by the parties to use electronic
signatures is made pursuant to Article 71.3 of Title 24, C.R.S., also known as the Uniform
Electronic Transactions Act. Any electronic signature so affixed to this Site Lease or any
supplement or consent relating thereto shall carry the full legal force and effect of any original,
handwritten signature.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the Trustee and a Commissioner of the Board of County
Commissioners of the County has executed this Site Lease for and on behalf of the County and the
Deputy County Clerk and Recorder has attested such signature and affixed the seal of the County
hereto. All of the above are effective as of date first above written.
EAGLE COUNTY, COLORADO,
as Lessor
By:
Commissioner,Board of County
Commissioners
[SEAL]
ATTESTED:
By:
County Clerk and Recorder
UMB BANK,N.A., solely in its capacity as
Trustee under the Indenture, as Lessee
By:
Authorized Signatory
[Signature Page to Site Lease]
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a
STATE OF COLORADO )
) ss.
COUNTY OF EAGLE )
The foregoing instrument was acknowledged before me this [ ]day of August,2021,by
[ 1, as Commissioner of the Board of County Commissioners, and by
[ ],County Clerk and Recorder.
WITNESS my hand and official seal.
(SEAL)
Notary Public
[Signature Page to Site Lease]
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STATE OF COLORADO )
) ss.
CITY AND COUNTY OF DENVER )
The foregoing instrument was acknowledged before me this [ ]day of August,2021,by
Patricia M. Peters, as Vice President of UMB Bank, n.a., as Trustee.
WITNESS my hand and official seal.
(SEAL)
Notary Public
[Signature Page to Site Lease]
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EXHIBIT A
DEPICTION OF LEASED PROPERTY I
The areas marked in yellow and pink on the map below collectively represent the land(the
"Site") leased by Eagle County, Colorado to UMB Bank, N.A., solely in its capacity as Trustee
under the Indenture of Trust dated as of August 1, 2021 pursuant to that certain Site and
Improvement Lease dated as of August 1, 2021.
The map also depicts improvements on the Site, which, together with the Site, constitute
the Leased Property. The improvements consist of, as labeled below: (a) the Health and Human
Services Building and 30 surface parking spaces serving the Health and Human Services Building;
and (b) the Eagle County Building and 55 surface parking spaces serving the Eagle County
Building.
Legend:
Yellow Highlight:Health and Human Services
.+ ^ ti` '.Building Property
- '�. (� )t- Pink Hi• Ii•ht:Ea•leConn Buildin,Pro•e
/ •
M ✓y': -i,
- . t
eau 7i>z#r^
11-16 i i
�� �� fir.; L.t
Ietki + f M
r i ate« "
Ca Z,
uu. to ..
I .
�` iT
I Map Attribution: Google. Map data: Landsat/Copernicus. Image date: July 14, 2021.
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EXHIBIT B
PERMITTED ENCUMBRANCES
"Permitted Encumbrances"has the meaning assigned thereto in Section 1.02 of the Lease
and also include the following: [copy from the final title commitment]
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PRELIMINARY OFFICIAL STATEMENT DATED ,2021
0
NEW ISSUE Rating:Moody's: "1 j"
a • BOOK-ENTRY-ONLY See"RATING"herein
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U U
o'n In the opinion of Ballard Spahr LLP,bond counsel to the County,the interest portion of payments made by the County under the Lease and
received by Owners of the Certificates(the "Certificate Interest Portion')is excludable from gross income for federal income tax purposes,assuming
continuing compliance with the requirements of the federal tax laws. The Certificate Interest Portion is not an item of tax preference for purposes of
o the individual alternative minimum tax. To the extent that the Certificate Interest Portion is excludable from gross income for federal income tax
purposes,the Certificate Interest Portion is also excludable from gross income for State of Colorado income tax purposes and from the calculation of
R State of Colorado alternative minimum taxable income.See "TAX MATTERS"herein.
o 2
S18,525,000"
' N CERTIFICATES OF PARTICIPATION,SERIES 2021
Evidencing Proportionate.Interests in the Base Rentals and other Revenues under an Annually Renewable Lease Purchase
o a Agreement between UMB BANK,N.A.,solely in its capacity as trustee under the Indenture,as lessor,and
EAGLE COUNTY EAGLE COUNTY,COLORADO,as lessee
.0 Dated: Date of Delivery Due: December 1,as shown on inside front cover
The Certificates of Participation, Series 2021 (the"Certificates"),evidence proportionate interests in the base rentals and certain other
revenues pursuant to an annually renewable Lease Purchase Agreement dated as of August 1,2021(the"Lease"),between UMB Bank,n.a.,solely in
oE- its capacity as trustee under the Indenture(defined below)(the"Trustee"),as lessor, and Eagle County, Colorado(the"County"),as lessee. The
oCertificates are being executed and delivered pursuant to an Indenture of Trust dated as of August,2021(the"Indenture")delivered by the Trustee.
The Certificates are being executed and delivered as fully registered certificates in denominations of$5,000 and integral multiples thereof
.a When delivered,the Certificates will be registered in the name of Cede&Co.,as nominee of The Depository Trust Company,New York("DTC").
DTC initially will act as securities depository for the Certificates,and individual purchases will be made in book-entry form only. Purchasers of the
o Certificates will not receive physical delivery of certificates,all as more fully described herein. Upon receipt of principal and interest,DTC is required
s Q to remit such principal and interest to DTC participants for subsequent disbursement to the beneficial owners of the Certificates,as more fully described
herein. Principal of,premium, if any,and interest on the Certificates will be payable to DTC,or its nominee,as owner of the Certificates,by the
Trustee. Interest on the Certificates is payable on June 1 and December 1 of each year,commencing December 1,2021,as more fully described herein.
vPrincipal of the Certificates is payable on the dates,and interest is payable at the rates,shown on the maturity schedule set forth herein.
A The maturity schedule for the Certificates appears on the inside front cover page of this Official Statement.
_ a
oThe Certificates are subject to optional,mandatory sinking fund,and extraordinary mandatory redemption prior to maturity,as more fully
described herein.
The Certificates are being executed and delivered to (a) finance a portion of the costs of constructing, improving and equipping of
o approximately 12 miles of the Eagle Valley Trail,including the acquisition of real property and(b)pay costs relating to the execution and delivery of
the Certificates.
.o The Certificates are payable(except as otherwise described herein)solely from annually budgeted and appropriated Base Rentals or from
the Purchase Option Price,if any,to be paid by the County under the Lease,as more fully described herein. All payment obligations of the County
ounder the Lease,including the County's obligation to make Base Rental payments,are subject to the annual budgeting and appropriation by
° the County of moneys of the County for such payments. The Lease provides that upon annual budgeting and appropriation,the County's
obligation to make Base Rental and Additional Rental payments due in the Fiscal Year for which moneys have been budgeted and appropriated
owill be absolute and unconditional. The Lease is subject to annual renewal by the County and will be terminated following an Event of
Nonappropriation as described herein. Upon termination of the County's obligations under the Lease,the Certificates will be payable only
7,7;.__ from moneys,if any,held by the Trustee under the Indenture and any amounts resulting from the Trustee's exercise of remedies under the
'.o Site Lease,the Lease and the Indenture. No provision of the Lease or the Certificates shall be construed or interpreted as creating a debt or
b multiple Fiscal Year direct or indirect debt or other financial obligation whatsoever of the County within the meaning of any constitutional or
statutory limitation or requirement. None of the Lease,the Indenture,or the Certificates has directly or indirectly obligated the County to
y make any payments beyond those budgeted and appropriated for the County's then-current Fiscal Year.
.c This cover page contains certain information for quick reference only and is not a summary of the issue.Prospective investors should
v read this entire Official Statement in order to make an informed investment decision and should give particular attention to the section entitled
o.t "CERTAIN RISK FACTORS."
o The Certificates are offered when, as, and if delivered under the terms of the Indenture and accepted by the Underwriter,subject to the
wapproving opinion of Ballard Spahr LLP,Denver,Colorado,as special counsel to the County,and certain other conditions. Ballard Spahr LLP has also
,, o acted as disclosure counsel to the County in connection with the preparation of this Official Statement.The County Attorney will pass upon certain
legal matters for the County.Butler Snow LLP,Denver,Colorado,has acted as counsel to the Underwriter.It is expected that the Certificates will be
i:, executed and available for delivery through the facilities of DTC on or about August 11,2021*.
� R
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, RBC CAPITAL MARKETS
The date of this Official Statement is ,2021.
O
o
9
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ti
*Preliminary;subject to change.
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MATURITY SCHEDULE*
Serial Maturities
Maturity Principal Interest
(December 1) Amount Rate Yield CUSIP©,t
2022 $ 625,000
2023 645,000
2024 675,000
2025 700,000
2026 730,000
2027 755,000
2028 790,000
2029 820,000
2030 850,000
2031 885,000
2032 920,000
2033 960,000
2034 995,000
2035 1,035,000
2036 1,075,000
2037 1,120,000
2038 1,165,000
2039 1,210,000
2040 1,260,000
2041 1,310,000
*Preliminary;subject to change.
©CUSIP®is a registered trademark of the American Bankers Association.CUSIP Global Services(CGS)is managed on behalf
of the American Bankers Association by S&P Global Market Intelligence.Copyright©2021 CUSIP Global Services.All rights
reserved.CUSIP®data herein is provided by CUSIP Global Services.This data is not intended to create a database and does not
serve in any way as a substitute for the CUSIP Global Services.
None of the County, the Trustee, or the Underwriter assumes any responsibility for the accuracy of such number. CUSIP®
numbers are provided for convenience of reference only.
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521F9
EAGLE COUNTY,COLORADO
Board of County Commissioners
Matt Scherr,Chair
Jeanne McQueeney,Commissioner
Kathy Chandler-Henry, Commissioner
Other Elected Officials
Regina O'Brien,Clerk and Recorder
Teak J. Simonton,Treasurer and Public Trustee
Mark Chapin,Assessor
County Administration
Jeff Shroll,County Manager
Bryan R. Treu,County Attorney
Jill Klosterman,Chief Financial Officer
Tanya Allen,ECO Transit Director
Kevin Sharkey,ECO Trails Manager
Special Counsel and Disclosure Counsel
Ballard Spahr LLP
Denver,Colorado
Underwriter
RBC Capital Markets,LLC
Denver,Colorado
Underwriter's Counsel
Butler Snow LLP
Denver,Colorado
Trustee
UMB Bank,n.a.
Denver,Colorado
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521 F9
USE OF INFORMATION IN THIS OFFICIAL STATEMENT
This Official Statement,which includes the cover page,the inside cover pages and the appendices,does not
constitute an offer to sell or the solicitation of an offer to buy any of the Certificates in any jurisdiction in which it is
unlawful to make such offer,solicitation,or sale. No dealer,salesperson,or other person has been authorized to give
any information or to make any representations other than those contained in this Official Statement in connection
with the offering of the Certificates,and if given or made,such information or representations must not be relied upon
as having been authorized by the County or the Underwriter.The County maintains an internet website;however,the
information presented there is not a part of this Official Statement and should not be relied upon in making an
investment decision with respect to the Certificates.
The information set forth in this Official Statement has been obtained from the County and from other sources
referenced throughout this Official Statement,which the County believes to be reliable but does not guarantee as to
accuracy or completeness. This Official Statement contains, in part, estimates and matters of opinion which are not
intended as statements of fact, and no representation or warranty is made as to the correctness of such estimates and
opinions,or that they will be realized.
In accordance with its responsibilities under federal securities laws, the Underwriter has reviewed the
information in this Official Statement but does not guarantee its accuracy or completeness.
The information, estimates, and expressions of opinion contained in this Official Statement are subject to
change without notice,and neither the delivery of this Official Statement nor any sale of the Certificates shall,under
any circumstances, create any implication that there has been no change in the affairs of the County, or in the
information,estimates,or opinions set forth herein,since the date of this Official Statement.
This Official Statement has been prepared only in connection with the original offering of the Certificates
and may not be reproduced or used in whole or in part for any other purpose.
The Certificates have not been registered with the Securities and Exchange Commission due to certain
exemptions contained in the Securities Act of 1933, as amended. In making an investment decision, investors must
rely on their own examination of the County,the Certificates and the terms of the offering,including the merits and
risks involved. The Certificates have not been recommended by any federal or state securities commission or
regulatory authority,and the foregoing authorities have neither reviewed nor confirmed the accuracy of this document.
THE PRICES AT WHICH THE CERTIFICATES ARE OFFERED TO THE PUBLIC BY THE
UNDERWRITER(AND THE YIELDS RESULTING THEREFROM)MAY VARY FROM THE INITIAL PUBLIC
OFFERING PRICES OR YIELDS APPEARING ON THE INSIDE COVER PAGE HEREOF. IN ADDITION,THE
UNDERWRITER MAY ALLOW CONCESSIONS OR DISCOUNTS FROM SUCH INITIAL PUBLIC OFFERING
PRICES TO DEALERS AND OTHERS. IN ORDER TO FACILITATE DISTRIBUTION OF THE
CERTIFICATES,THE UNDERWRITER MAY ENGAGE IN TRANSACTIONS INTENDED TO STABILIZE THE
PRICE OF THE CERTIFICATES AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH STABILIZING,IF COMMENCED,MAY BE DISCONTINUED AT ANY TIME.
FORWARD-LOOKING STATEMENTS
This Official Statement contains statements relating to future results that are"forward—looking statements"
as defined in the Private Securities Litigation Reform Act of 1995. When used in this Official Statement,the words
"estimate,""forecast,""anticipate,""intend,""expect,""plan,""projected"and similar expressions identify forward-
looking statements. Any forward-looking statement is subject to risks and uncertainties that could cause actual results
to differ materially from those contemplated in such forward-looking statements.Inevitably,some assumptions used
to develop the forward-looking statement will not be realized and unanticipated events and circumstances will occur.
Therefore,it can be expected that there will be differences between forward-looking statements and actual results,and
those differences may be material. For a discussion of certain of such risks and possible variations in results, see
"CERTAIN RISK FACTORS."
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521 F9
TABLE OF CONTENTS
Page Page
INTRODUCTION I Base Rentals Schedule 33
The County 1 THE COUNTY 33
Purpose of the Certificates 2 Generally 33
Authority for Issuance 2 History ... 34
The Certificates;Prior Redemption 2 Economy 34
Sources of Payment for the Certificates 2 County Government .......35
Additional Certificates 5 Pension Matters 36
Book-Entry-Only Registration 6 Insurance..... 36
Exchange and Transfer.... .. 6 Intergovernmental Agreements 37
Tax Status .... 6 Capital Improvement Plan 37
Professionals Involved in the Offering 6 Services Provided by the County. 38
Continuing Disclosure Agreement......... ..... 7 Services Available to County Residents 38
Financial Statements 7 ' COUNTY FINANCIAL INFORMATION..... 39
Offering and Delivery of the Certificates 7 Assessed Valuation and Property Taxes 39
Additional Information 7 Historical Property Tax Data .43
CERTAIN RISK FACTORS .8 Sales Taxes 45
No Assurance of Secondary Market 8 Specific Ownership Taxes 50
Nonappropnation 8 Impact Fees 50
Effect of a Termination of the Lease Term 9 Accounting Policies and Financial Statements 50
Sources of Base Rentals and Additional Rentals are Limited Budget and Appropriation Procedure 54
to Specifically Appropriated Funds 10 Administration's Summary of Material Trends ..........58
Factors that May Cause Insufficiency of Expected Sources of Constitutional Amendment Limiting Taxes and Spending 59
Payment of Base Rentals and Additional Rentals 11 DEBT STRUCTURE 59
Factors that Could Impact Value of Property if Lease is Required Elections 60
Terminated .. .. . 12 General Obligation Debt ..... 60
No Reserve Fund 13 Revenue and Other Financial Obligations 61
Limited Duration of Site Lease 13 LEGAL MATTERS 62
Enforceability of Remedies;Liquidation Delays 14 Sovereign Immunity 62
Effect of Termination on Exemption from Taxation and on Legal Representation 63
Exemption from Registration 14 Pending and Threatened Litigation Involving the County ... ....63
Condemnation Risk 14 Indenture to Constitute Contract 63
Casualty Risk 15 TAX MATTERS 63
Insurance Risk 15 RATING 66
Trustee's Limited Obligation 15 MISCELLANEOUS ..66
COVID-19 Risks 16 Registration of Certificates 66
Legal Constraints on County Operations;Future Changes in Interest of Certain Persons Named in this Official Statement 66
Law 17 Undertaking To Provide Ongoing Disclosure.... 66
Changes in Federal and State Tax Law 17 Independent Auditor 67
THE CERTIFICATES 18 Underwriting 67
Description 18 Additional Information 68
Authorized Denominations............ .... ...18 Official Statement Certification 69
Payment of Principal and Interest 18
Redemption ...18 APPENDIX A—AUDITED FINANCIAL STATEMENTS FOR THE
Certain Indenture Provisions . ... 21 COUNTY FOR THE FISCAL YEAR ENDED DECEMBER 31,2020
SECURITY AND SOURCES OF PAYMENT 29 APPENDIX B—FORMS OF THE SITE LEASE,THE LEASE,AND THE
General..... 29 INDENTURE
The Leased Property 29 APPENDIX C—FORM OF CONTINUING DISCLOSURE AGREEMENT
Sources of Available Revenue to Pay Base Rentals 30 APPENDIX D—ECONOMIC AND DEMOGRAPHIC INFORMATION
Rights of County to Terminate the Lease Annually 30 APPENDIX E—FORM OF SPECIAL COUNSEL OPINION
Remedies in Event of Termination of the Lease 30 APPENDIX F—BOOK-ENTRY-ONLY SYSTEM
USE OF PROCEEDS AND BASE RENTALS SCHEDULE 31
The Project 31
•
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INDEX OF TABLES
Table Page
TABLE I Base Rental Schedule Certificates 32
TABLE II History of County's Assessed Valuation 42
TABLE III Historical County Mill Levies and Property Tax Collections 43
TABLE IV 2020 Largest Property Taxpayers in the County 43
TABLE V 2020 Assessed and"Actual"Valuation of Classes of Property in the County 44
TABLE VI County 1%Sales Tax Collections-Accrual Basis 2016-2020 46
TABLE VII Monthly Comparison of County 1%Sales Tax Collections 46
TABLE VIII County 0.5%Transportation Sales Tax Collections-Accrual Basis 2016-2020 47
TABLE IX Monthly Comparison of County 0.5%Transportation Sales Tax Collections 47
TABLE X 2020 Actual County 1.0% Sales Tax Collections by Industry
Type 48
TABLE XI 2020 Actual County 0.5% Transportation Sales Tax Collections by Industry
Type 48
TABLE XII Specific Ownership Taxes Collected by County 49
TABLE XIII Statement of Revenues and Expenditures and Fund Balances—General Fund 50
TABLE XIV Statement of Revenues and Expenditures and Fund Balances—Capital
Improvements 51
TABLE XV Statement of Revenues and Expenditures and Fund Balances—ECO Trails 52
TABLE XVI General Fund Budget Summary and Comparison 54
TABLE XVII Capital Improvements Fund Budget Summary and Comparison 55
TABLE XVIII ECO Trails Fund Budget Summary and Comparison 56
TABLE XIX Estimated Overlapping General Obligation Debt 59
TABLE XX Outstanding Obligations as of December 31,2020 60
iv
m.
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521F9
MAP OF EAGLE COUNTY,COLORADO
To Steamboat
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Red Cliff To Denver
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1 To Leadville
V
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521 F9
OFFICIAL STATEMENT
$18,525,000*
CERTIFICATES OF PARTICIPATION,SERIES 2021
Evidencing Proportionate Interests in the Base Rentals and other Revenues under an Annually
Renewable Lease Purchase Agreement between UMB BANK,N.A.,solely in its capacity as trustee
under the Indenture,as lessor,and EAGLE COUNTY,COLORADO,as lessee
INTRODUCTION
This Official Statement, including its cover page, inside cover pages and appendices, provides
information in connection with the execution,delivery and sale of$18,525,000*aggregate principal amount
of Certificates of Participation, Series 2021 (the "Certificates"), evidencing proportionate interest in the
base rentals and certain other revenues under a Lease Purchase Agreement dated as of August 1,2021 (the
"Lease"),between UMB Bank,n.a.,solely in its capacity of trustee under the hereinafter defined Indenture
(the"Trustee"), as lessor,and Eagle County,Colorado(the"County"),as lessee. The Certificates will be
executed and delivered pursuant to an Indenture of Trust dated as of August 1, 2021 (the "Indenture")
delivered by the Trustee.
Pursuant to the Lease,the County has leased from the Trustee certain Leased Property (as further
defined in the Lease, the "Leased Property"), including certain real property owned by the County and
leased to the Trustee pursuant to a Site and Improvement Lease, dated as of August 1, 2021 (the "Site
Lease"), between the County, as lessor,and the Trustee,as lessee. Capitalized terms used herein and not
otherwise defined have the meanings given thereto in the Lease and the Indenture. See"FORMS OF THE
LEASE,THE SITE LEASE,AND THE INDENTURE—Certain Definitions"in APPENDIX B—FORMS
OF THE SITE LEASE,THE LEASE,AND THE INDENTURE hereto.
The offering of the Certificates is made only by way of this Official Statement, which supersedes
any other information or materials used in connection with the offer or sale of the Certificates. The
following introductory material is only a brief description of and is qualified by the more complete
information contained throughout this Official Statement.A full review should be made of the entire Official
Statement and the documents summarized or described herein,particularly the section entitled "CERTAIN
RISK FACTORS." Detachment or other use of this "INTRODUCTION" without the entire Official
Statement, including the cover page, the inside cover page and the appendices, is unauthorized.
The County
The County is a political subdivision of the State of Colorado (the "State"). The County, which
includes the resort communities of Vail.(Vail ski area) and Avon (Beaver Creek ski area), is located
approximately 100 miles west of Denver, Colorado in the Rocky Mountains. The County encompasses
approximately 1,694 square miles and spans from the summit of Vail Pass west to Glenwood Canyon, and
from the Town of Basalt north to the community of McCoy. Approximately 80%of the land in the County
is publicly owned and is controlled primarily by the U.S. Forest Service and the U.S. Bureau of Land
Management. According to the State Demography Office,the County had an estimated full-time population
of 55,000 in 2019. However, due to the resort communities within the County and its status as a tourism
destination,the peak seasonal population is higher.
*Preliminary;subject to change.
DocuSign Envelope ID:BA6E6929-FFFC-4D5D-9CA6-07D7256521F9
The governing body of the County,the Board of County Commissioners(the"Board"),exercises
the constitutional and statutory powers granted to the County. See"THE COUNTY."
Purpose of the Certificates
Proceeds from the sale of the Certificates will be used to finance a portion of the costs of
constructing, improving and equipping of approximately 12 miles of the public Eagle Valley Trail,
including the acquisition of the real property in connection therewith(the"Project"). In addition,a portion
of proceeds of the Certificates will be used to pay the costs of executing and delivering the Certificates.
See"SECURITY AND SOURCES OF PAYMENT."
The entire Eagle Valley Trail is a regional public trail system for biking and pedestrian uses from
Vail Pass to Glenwood Canyon.From 1998 to 2019,51 of the 63 total planned trail miles were constructed.
The final approximately 12 miles of the Eagle Valley Trail (i.e., the Project) will be constructed in four
segments: Eagle-Vail to/from Dowd Junction, Dowd Junction to/from Minturn, Horn Ranch to/from
Edwards,and Dotsero to/from the Gypsum Duck Ponds. ECO Trails, which oversees the construction and
maintenance of the Eagle Valley Trail,was formed in 1996 and is part of the County government.
Authority for Issuance
The Certificates are being executed and delivered pursuant to the Indenture and under authority
granted by the laws of the State, including particularly Article XIV of the State Constitution; Title 30,
Article 11;and Title 11,Article 57,Part 2 of Colorado Revised Statutes,as amended.
The Certificates; Prior Redemption
The Certificates are executed and delivered in the authorized denominations of$5,000 and integral
multiples thereof. The Certificates will be dated as of their delivery date and will bear interest from such
date to maturity,payable semiannually on June 1 and December 1 of each year,commencing December 1,
2021, at the rates shown on the inside cover page of this Official Statement. Principal on the Certificates
is payable on December 1 in the years and in the amounts shown on the cover page of this Official
Statement. See"THE CERTIFICATES."
The Certificates initially will be registered in the name of Cede & Co., as nominee for The
Depository Trust Company,New York,New York("DTC"), which is acting as the securities depository
for the Certificates. Purchases of the Certificates are to be made in book-entry form only. Purchasers will
not receive certificates representing their beneficial ownership interest in the Certificates. See"APPENDIX
F—BOOK-ENTRY-ONLY SYSTEM."
The Certificates are subject to optional redemption prior to maturity at the option of the County
and are also subject to mandatory sinking fund redemption as described in "THE CERTIFICATES—
Redemption." The Certificates are also subject to extraordinary mandatory redemption upon the occurrence
of an Event of Nonappropriation or an Event of Lease Default, as described in"THE CERTIFICATES—
Redemption."
Sources of Payment for the Certificates
General The Certificates and the interest thereon are payable solely from certain Revenues
received by the Trustee pursuant to the Lease and Indenture,which include: (a)all amounts payable by or
on behalf of the County or with respect to the Leased Property pursuant to the Lease including, but not
limited to, all Base Rentals,Prepayments,the Purchase Option Price, and Net Proceeds,but not including
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Additional Rentals; (b) any portion of the proceeds of the Certificates and any Additional Certificates
delivered pursuant to the Indenture deposited into the Base Rentals Fund created under the Indenture; (c)
any moneys which may be derived from any insurance in respect of the Certificates and any Additional
Certificates delivered pursuant to the Indenture; and (d) 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 the Rebate Fund or any defeasance escrow account). See "SECURITY AND
SOURCES OF PAYMENT."
Under the Indenture, the Trustee, for the benefit of the Owners of the Certificates, is to receive
Base Rentals payable by the County under the Lease. The amount and timing of the Base Rentals are
designed to provide sufficient money to the Trustee to pay the principal of and interest on the Certificates
when due. The Trustee is to deposit to the Base Rentals Fund created under the Indenture all amounts
payable by or on behalf of the County or with respect to the Leased Property pursuant to the Lease,including
all Base Rentals,Prepayments,the Purchase Option Price,and Net Proceeds.
The Lease provides that upon annual appropriation, the County's obligation to pay Base Rentals
and Additional Rentals to the extent and for the Fiscal Year so budgeted and appropriated,will be absolute
and unconditional, and may not be abated through accident or unforeseen circumstances, nor may the
County under the Lease assert any right of set-off or counterclaim against its obligation to make such annual
payments.
None of the Lease, the Site Lease, the Certificates or any interest thereon constitutes a debt
or multiple Fiscal Year direct or indirect debt or other financial obligation whatsoever of the County
within the meaning of any constitutional or statutory limitation or requirement. None of the
Certificates,the Indenture,the Lease,or the Site Lease directly or indirectly obligates the County to
make any payment of any amounts in excess of amounts budgeted and appropriated for any Fiscal
Year.
Sources of Payment of Base Rentals. Amounts due under the Lease are payable from all general
revenues of the County and no particular revenues of the County are pledged to the payment of Base
Rentals. The County currently intends to budget, appropriate, and pay the Base Rentals (and Additional
Rentals, if any) allocable to the Certificates from legally available funds in the ECO Trails Fund and the
Capital Improvements Fund.Notwithstanding the foregoing, Base Rentals and Additional Rentals may be
budgeted, appropriated, and paid from any of the County's available funds in the future, including legally
available funds in the General Fund.However,no revenues of the County,including revenues derived from
the sources described below, are specifically pledged to pay the Base Rentals. See "COUNTY
FINANCIAL INFORMATION" for more information regarding the County's funds and for information
regarding the portion of the 0.5%sales tax revenues of the County,which comprise the source of funding
for the ECO Trails Fund,the portion of the 1%sales tax revenues of the County,which comprise a source
of funding for the Capital Improvements Fund, and trail impact fees that the County is considering
imposing,which would comprise a source of funding for the ECO Trails Fund. See also"APPENDIX A—
AUDITED FINANCIAL STATEMENTS FOR THE COUNTY FOR THE FISCAL YEAR ENDED
DECEMBER 31,2020."
Lease Termination;Annual Appropriation. The Lease constitutes a one-year lease of the Leased
Property,which is annually renewable for additional one-year terms as described in the Lease.The County
must take action annually to renew the Lease term for another year. If the County fails to take such action,
the Lease automatically will be terminated. The County's decision to terminate its obligations under the
Lease will be determined by the failure of the Board to specifically budget and appropriate moneys to pay
all Base Rentals and reasonably estimated Additional Rentals for the ensuing Fiscal Year. The County
Budget Officer or other officer of the County at any time charged with the responsibility of formulating
3
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budget proposals for the County is directed in the Lease to include in the annual budget proposals submitted
to the Board, in any year in which the Lease is in effect, items for all payments required for the ensuing
Renewal Term under the Lease until such time, if any, as the County determines to not renew and to
terminate the Lease. Notwithstanding the foregoing, it is the intention of the County that any decision to
appropriate the Base Rentals and Additional Rentals is to be made solely by the Board in its absolute
discretion and not by any other official of the County.
If prior to the beginning of any Fiscal Year of the County,the County fails to budget and appropriate
sufficient funds for the Base Rentals and such Additional Rentals as are estimated to become due as
described in the Lease,the County will be considered to have exercised its option not to renew the Lease,
and the Lease will terminate(subject to certain waiver and cure provisions thereof). Upon termination of
the County's obligations under the Lease,the Trustee may proceed to exercise certain remedies under the
Lease and the Indenture, including the lease or sublease of the Leased Property,the sale or assignment of
any interest the Trustee has in the Leased Property, such as the Trustee's leasehold interest, or any
combination thereof See "SECURITY AND SOURCES OF PAYMENT—Remedies in Event of
Termination of the Lease"and Section 13.02 of the form of the Lease included in APPENDIX B—FORMS
OF THE SITE LEASE, THE LEASE, AND THE INDENTURE hereto. The net proceeds of such
dispositions will be applied toward the payment of the Certificates. There can be no assurance that such
proceeds will be sufficient to pay all principal and interest due on the Certificates. See"CERTAIN RISK
FACTORS—Nonappropriation."
Site Lease; Termination of the Site Lease.The County and the Trustee will enter into a Site Lease
prior to the execution and delivery of the Certificates(the"Site Lease"),pursuant to which the County will
lease to the Trustee the Leased Property. Pursuant to the Lease,the County will lease the Leased Property
back from the Trustee, as further described herein.At the end of the term of the Site Lease, all right,title,
and interest of the Trustee, or any sublessee or assignee in and to the Leased Property will vest in the
County.
The Site Lease is to terminate on the earliest to occur of the following: (a)the termination of the
Lease Term as provided in the Lease due to the payment of the Purchase Option Price by the County, or
upon payment by the County of all Base Rentals and Additional Rentals for the entire Lease Term; (b)
discharge of the Indenture after payment of the Certificates; or (c) December 31, 2051*. The Leased
Property will no longer be subject to the provisions of the Site Lease,the Lease,or the Indenture upon the
termination of the Site Lease.See"CERTAIN RISK FACTORS—Limited Duration of Site Lease"and the
Site Lease included in APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE, AND THE
INDENTURE.
Leased Property. The Leased Property is comprised of the following property located in the Town
of Eagle,Colorado(the"Town"):(a)the"Health and Human Services Building Property"consisting of
the Health and Human Services Building (approximately 14,000 square feet), located at 551 Broadway
Street,presently used for public health and human service functions,together with approximately 0.72 acres
of land under and adjacent to the Health and Human Services Building and 30 surface parking spaces
serving the Health and Human Services Building; and (b) the "Eagle County Building Property"
consisting of the Eagle County Building (approximately 27,494 square feet), located at 500 Broadway
Street, which is presently used as the main County administrative building with a large auditorium for the
Board meetings and other public meetings, and which also houses the offices for County Clerk and
Recorder, County Treasurer and Public Trustee, and County Assessor, the community development,
planning, and engineering departments, and all internal service departments of the County, together with
*Preliminary;subject to change.
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approximately 2.165 acres of land under and adjacent to the Eagle County Building and 55 surface parking
spaces serving the Eagle County Building. See "SECURITY AND SOURCES OF PAYMENT—The
Leased Property"for more information.
Release of Portion of Leased Property. Pursuant to the Lease, the County may release the
individual properties comprising the Leased Property in the order shown in the following table when the
principal component of Base Rentals paid by the County, plus the principal amount of any Certificates
redeemed through optional redemption, or the total principal amount of Certificates paid or deemed to be
paid pursuant to the Indenture equals the amounts shown in the release schedule shown below.
Leased Property to be Released: Total Certificate Principal Paid*
Health and Human Services Building Property $5,558,000
Eagle County Building Property $12,967,000
When each component of the Leased Property (included associated land and surface parking as
reflected in the Lease and the Site Lease)is deemed to have been fully amortized,the Trustee will execute
and deliver to the County all documents necessary to convey and transfer the applicable portion of the
Trustee's leasehold interest in the Leased Property(or any property substituted for that portion of the Leased
Property pursuant to the Lease)to the County.Notwithstanding the foregoing,the Eagle County Building
Property(or any property substituted for such portion of the Leased Property pursuant to any provision of
the Lease) shall not be released from the provision of the Site Lease and the Lease before the Health and
Human Services Building Property is released and the fair value of the remaining Leased Property must be
at least equal to 100% of the aggregate principal amount of the Certificates then Outstanding, as certified
in writing to the Trustee by the County Representative. After such release and conveyance,the applicable
portion of the Leased Property will no longer be a part of the Leased Property for any purpose of the Lease
or the Indenture. See Section 11.05 of the Lease in APPENDIX B—FORMS OF THE SITE LEASE,THE
LEASE,AND THE INDENTURE.
Substitution of Leased Property. So long as no Event of Default or Event of Nonappropriation has
occurred and is continuing,the County is entitled to substitute any improved or unimproved real estate in
place of the Leased Property after satisfying the conditions set forth in the Lease. See Section 8.08 of the
form of the Lease included in APPENDIX B—FORMS OF THE SITE LEASE,THE LEASE,AND THE
INDENTURE.
Purchase Option Price. The County will have the option to purchase the Trustee's leasehold
interest in the Leased Property at any time pursuant to the Lease and terminate the Site Lease and the Lease
by paying the Purchase Option Price,which is equal to the amount necessary to pay all principal and interest
due on all outstanding Certificates and any other amounts necessary to defease and discharge the Indenture,
as provided in the Lease. See Section 6.03 of the form of the Lease included in APPENDIX B—FORMS
OF THE SITE LEASE, THE LEASE, AND THE INDENTURE. The Trustee is required to use the
Purchase Option Price to pay the principal, interest, and premium on the Certificates. See "THE
CERTIFICATES—Redemption."
Additional Certificates
The Indenture permits the execution and delivery of Additional Certificates for the purpose of
refunding all or a portion of the Certificates without notice to or approval of the owners of the outstanding
*Preliminary;subject to change.
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Certificates under the circumstances described in"THE CERTIFICATES—Certain Indenture Provisions—
Additional Certificates."
Book-Entry-Only Registration
The Certificates will be issued in fully registered form and will be registered initially in the name
of"Cede & Co." as nominee for DTC, a securities depository. Beneficial ownership interests in the
Certificates may be acquired through brokers and dealers who are, or who act through, participants in the
DTC system(the"Participants") in principal denominations of$5,000 or any integral multiples thereof
Such beneficial ownership interests will be recorded on the records of the Participants. Persons for whom
Participants acquire interests in the Certificates (the `Beneficial Owners") will not receive certificates
evidencing their interests in the Certificates so long as DTC or a successor securities depository acts as the
securities depository with respect to the Certificates. So long as DTC or its nominee is the registered owner
of the Certificates, payments of principal and interest on the Certificates, as well as notices and other
communications made by or on behalf of the County pursuant to the Indenture,will be made to DTC or its
nominee only. Disbursement of such payments,notices,and other communications by DTC to Participants,
and by Participants to the Beneficial Owners, is the responsibility of DTC and the Participants pursuant to
rules and procedures established by such entities. See "APPENDIX F—BOOK-ENTRY-ONLY
SYSTEM" for a discussion of the operating procedures of the DTC system with respect to payments,
registration,transfers,notices,and other matters.
Except as otherwise provided herein, the term "Owner" refers to the registered owner of any
Certificate, as shown by the registration books maintained by the Trustee as registrar. As used herein,
"Consent Party" means the Owner of a Certificate or, if such Certificate is held in the name of Cede &
Co., the Participant (as determined by a list provided by DTC) with respect to such Certificate, or if so
designated in writing by a Participant,the Beneficial Owner of such Certificate.
Exchange and Transfer
While the Certificates remain in book-entry only form,transfer of ownership by Beneficial Owners
may be made as described under the caption"APPENDIX F—BOOK-ENTRY-ONLY SYSTEM."
Tax Status
In the opinion of Ballard Spahr LLP,bond counsel to the County,the interest portion of payments
made by the County under the Lease and received by Owners of the Certificates(the"Certificate Interest
Portion") is excludable from gross income for federal income tax purposes, assuming continuing
compliance with the requirements of the federal tax laws. The Certificate Interest Portion is not an item of
tax preference for purposes of the individual alternative minimum tax. To the extent that the Certificate
Interest Portion is excludable from gross income for federal income tax purposes, the Certificate Interest
Portion is also excludable from gross income for State of Colorado income tax purposes and from the
calculation of State of Colorado alternative minimum taxable income. See"TAX MATTERS"herein.
Professionals Involved in the Offering
Ballard Spahr LLP, Denver, Colorado, has acted as special counsel to the County in connection
with the execution and delivery of the Certificates and as disclosure counsel in connection with the
preparation of this Official Statement. Certain legal matters will be passed upon for the County by the
County Attorney. UMB Bank,n.a.,Denver,Colorado,is serving as Trustee. The County's basic financial
statements, included in this Official Statement as Appendix A, have been audited by McMahan and
Associates,L.L.C.,Avon,Colorado,independent certified public accountants.RBC Capital Markets,LLC,
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Denver,Colorado is acting as the Underwriter for the Certificates(the"Underwriter").Butler Snow LLP,
Denver,Colorado has acted as counsel to the Underwriter.
Continuing Disclosure Agreement •
At the time of the execution and delivery of the Certificates, the County and Digital Assurance
Certification, LLC ("DAC"), as dissemination agent (the "Dissemination Agent") will enter into a
continuing disclosure agreement(the"Continuing Disclosure Agreement"). The Continuing Disclosure
Agreement will be entered into for the benefit of the beneficial owners of the Certificates,and the County
has covenanted in the Lease to comply with its terms. However,any failure by the County to comply with
the Continuing Disclosure Agreement will not constitute an Event of Lease Default. The Continuing
Disclosure Agreement will provide that so long as the Certificates remain outstanding, the County will
provide the following information to the Dissemination Agent for delivery to the Municipal Securities
Rulemaking Board for filing on its Electronic Municipal Market Access("EMMA")system: (a)annually,
certain financial information and operating data related to the County; and(b) notice of the occurrence of
certain enumerated events. The form of the Continuing Disclosure Agreement is attached hereto as
APPENDIX C—FORM OF CONTINUING DISCLOSURE AGREEMENT." For a discussion of the
County's compliance with its prior continuing disclosure obligations, see "MISCELLANEOUS—
Undertaking to Provide Continuing Disclosure."
Financial Statements
In accordance with Title 29,Article 1,Part 6,C.R.S.,an annual audit is required to be made of the
County's financial statements at the end of the fiscal year unless an exemption from audit has been granted
by the State Auditor's Office. Appended hereto are the audited basic financial statements of the County
for the fiscal year ended December 31, 2020, being the most recent audited financial statements available
for the County.
Offering and Delivery of the Certificates
The Certificates are offered when,as and if executed and delivered, subject to the approving legal
opinion of Special Counsel, the form of which is set forth in "APPENDIX E—FORM OF SPECIAL
COUNSEL OPINION,"and the satisfaction of certain other conditions. It is anticipated that the Certificates
will be executed and available for delivery through DTC on or about August 11, 2021*, against payment
therefor.
Additional Information
ALL OF THE SUMMARIES OF THE STATUTES, LEASES, RESOLUTIONS, INDENTURE,
OPINIONS, CONTRACTS, AND AGREEMENTS DESCRIBED IN THIS OFFICIAL STATEMENT
ARE SUBJECT TO THE ACTUAL PROVISIONS OF SUCH DOCUMENTS. The summaries do not
purport to be complete statements of such provisions and reference is made to such documents, copies of
which are either publicly available or available upon request and the payment of a reasonable copying,
mailing,and handling charge from, as applicable:
*Preliminary;subject to change.
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Eagle County,Colorado RBC Capital Markets,LLC
PO Box 850 1801 California Street, Suite 3850
500 Broadway Denver,Colorado 80202
Eagle,Colorado 8 1 63 1-0850 Telephone: (303)595-1222
Telephone: (970)328-3511 Attention: Dan O'Connell
Attention: Finance Director
CERTAIN RISK FACTORS
INVESTMENT IN THE CERTIFICATES INVOLVES RISK. PROSPECTIVE INVESTORS IN
THE CERTIFICATES SHOULD READ THIS ENTIRE OFFICIAL STATEMENT AND CAREFULLY
CONSIDER ALL POSSIBLE FACTORS WHICH MAY AFFECT THEIR INVESTMENT DECISION.
THE RISK FACTORS DESCRIBED IN THIS SECTION SET FORTH MANY OF THE POTENTIAL
RISKS OF AN INVESTMENT IN THE CERTIFICATES THAT SHOULD BE CONSIDERED PRIOR
TO PURCHASING THE CERTIFICATES, BUT DOES NOT PROVIDE AN EXHAUSTIVE LIST OF
SUCH FACTORS. FURTHERMORE, ADDITIONAL RISK FACTORS NOT PRESENTLY KNOWN,
OR CURRENTLY BELIEVED TO BE IMMATERIAL, MAY ALSO MATERIALLY AND
ADVERSELY AFFECT,AMONG OTHER THINGS, SECURITY FOR THE CERTIFICATES. THERE
CAN BE NO ASSURANCE THAT OTHER RISKS OR CONSIDERATIONS NOT DISCUSSED
HEREIN ARE OR WILL NOT BECOME MATERIAL IN THE FUTURE.
Each prospective investor is urged to consult with its own legal, tax, and financial advisors to
determine whether an investment in the Certificates is appropriate in light of its individual legal,tax, and
financial situation.
Each prospective investor in the Certificates is encouraged to read this Official Statement in its
entirety and to give particular attention to the factors described below which could affect the payment of
rentals under the Lease and could affect the market price of the Certificates to an extent that cannot be
determined at this time.
No Assurance of Secondary Market
No assurance can be given concerning the future existence of a secondary market for the
Certificates and prospective purchasers of the Certificates should,therefore, be prepared, if necessary,to
hold the Certificates to maturity or prior redemption. Even if a secondary market exists,as any marketable
securities,there can be no assurance as to the price for which the Certificates may be sold. Such price may
be lower than that paid by the initial purchaser of the Certificates.
Nonappropriation
Prospective purchasers of the Certificates should look to the ability of the County to pay Base
Rentals pursuant to the Lease; such Base Rentals will provide funds for payment of principal and interest
on the Certificates. The County is not obligated to pay Base Rentals or Additional Rentals under the Lease
unless funds are budgeted and appropriated for such rentals by the County each year. If,by December 31
of each year, the County does not specifically budget and appropriate amounts sufficient to pay all Base
Rentals due in the next Fiscal Year,and to pay such Additional Rentals as are estimated to become due in
the next Fiscal Year, an"Event of Nonappropriation"occurs. If an Event of Nonappropriation occurs,the
County will not be obligated to make payment of the Base Rentals or Additional Rentals which accrue after
the last day of the Initial Term or any Renewal Term during which such Event of Nonappropriation occurs.
See Section 6.07 of the form of the Lease included in"APPENDIX B—FORMS OF THE SITE LEASE,
THE LEASE,AND THE INDENTURE." The Trustee may waive an Event of Nonappropriation which is
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cured by the County within a reasonable time. It is expected that such a waiver would be made only under
extraordinary circumstances, such as a delay in the approval of the County's Budget. See Section 6.07 of
the form of the Lease included in"APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE, AND
THE INDENTURE—The Lease."
Various political,legal and economic factors could lead to the failure by the County to budget and
appropriate sufficient funds to make the required payments under the Lease, and prospective investors
should carefully consider any factors which may influence the budgetary process. The budgeting of funds
may be affected by the County's continuing need for the Leased Property and by various factors affecting
the County and its need for the Leased Property. There is no assurance that the County will budget and
appropriate sufficient funds to pay Base Rentals and Additional Rentals each year, and the County has no
obligation to do so. In addition,the ability of the County to maintain adequate revenues for its operations
and obligations in general (including obligations associated with the Lease) is dependent upon several
factors outside the County's control, such as the general economy, the assessed value of property in the
County(which may be affected by numerous factors, including without limitation, increasing foreclosures
and general market downturns), tax collections, and federal and state funding. In addition, restrictions
imposed under the State Constitution on the County's revenues and spending apply to the collection and
expenditure of revenues to pay Base Rentals and Additional Rentals, and may impact the ability to
appropriate sufficient funds to pay Base Rentals and Additional Rentals each year.It is impossible to predict
changes to national, State or local economic conditions or predict whether or how existing or future
economic conditions will affect the County's finances in general or the Board's decision each year to
appropriate funds to pay Base Rends and Additional Rentals. See "SECURITY AND SOURCES OF
PAYMENT"and"COUNTY FINANCIAL INFORMATION."
The obligation of the County to pay Base Rentals and Additional Rentals is limited to those County
funds that are specifically budgeted and appropriated by the County for such purpose. The County Budget
Officer or other officer of the County at any time charged with the responsibility of formulating budget
proposals for the County is directed in the Lease to include in the annual budget proposals submitted to the
Board,in any year in which the Lease is in effect,items for all payments required for the ensuing Renewal
Term under the Lease until such time, if any, as the County determines to not renew and to terminate the
Lease. Notwithstanding the foregoing, the Lease provides that it is the intention of the County that any
decision to appropriate the Base Rentals and Additional Rentals is to be made solely by the Board in its
absolute discretion and not by any other official of the County. See Section 4.02 of the form of the Lease
included in APPENDIX B—FORMS OF THE SITE LEASE,THE LEASE,AND THE INDENTURE.
Effect of a Termination of the Lease Term
In the event of termination of the County's obligations under the Lease upon the occurrence of an
Event of Nonappropriation or an Event of Lease Default,the County is required to vacate and surrender the
Leased Property by March 1 of any Renewal Term in respect of which an Event of Nonappropriation or an
Event of Lease Default has occurred. If an Event of Lease Default shall have occurred and remain uncured,
the Trustee may take any of the following actions: (a) terminate the Lease Term and give notice to the
County to vacate and surrender possession of the Leased Property which vacation and surrender the County
agrees under the Lease to complete within 90 days from the date of such notice (in the event the County
does not vacate and surrender possession on the termination date,the "holdover tenant"provisions of the
Lease 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 Leased Property pursuant to the
Site Lease;(c)recover from the County(i)the portion of Base Rentals and Additional Rentals,for which a
specific Appropriation has been effected by the County for such purpose,which would otherwise have been
payable under the Lease, during any period in which the County continues to occupy, use or possess the
Leased Property;and(ii)Base Rentals and Additional Rentals,for which a specific Appropriation has been
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effected by the County for such purpose, which would otherwise have been payable by the County under
the Lease during the remainder,after the County vacates and surrenders possession of the Leased Property,
of the Fiscal Year in which such Event of Lease Default occurs; or (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,the Lease and the Indenture.
The Lease places certain limitations on the availability of money damages against the County as a
remedy. For example,the Lease provides that a judgment requiring a payment of money may be entered
against the County by reason of an Event of Nonappropriation only to the extent the County fails to vacate
the Leased Property as required by the Lease and only as to certain liabilities as described in the Lease. All
property, funds and rights acquired by the Trustee upon the termination of the Lease, along with other
moneys then held by the Trustee under the Indenture(with certain exceptions as provided in the Lease and
the Indenture),are required to be used to redeem the outstanding Certificates, if and to the extent any such
moneys are realized. See Article XIII of the form of the Lease included in"APPENDIX B—FORMS OF
THE SITE LEASE,THE LEASE,AND THE INDENTURE"and"THE CERTIFICATES—Redemption."
The Leased Property is intended to be used by the County for governmental purposes. Because of
such use,a potential purchaser of the Certificates should not assume that the amount of money received by
the Trustee upon the exercise of its rights under the Site Lease, the Lease and the Indenture after a
termination of the Lease Term will be sufficient to pay the aggregate principal amount of the Certificates
then outstanding plus accrued interest thereon. In addition,the Site Lease may terminate before the Trustee
is able to fully recover the amount sufficient to pay the Certificates in full.This may be due to the inability
to recover certain of the costs incurred in connection with the execution and delivery of the Certificates.
Present or future zoning requirements, environmental requirements, or other land use regulations
may also restrict use of the Leased Property. See "SECURITY AND SOURCES OF PAYMENT—The
Leased Property"and the Site Lease included in"APPENDIX B—FORMS OF THE SITE LEASE, THE
LEASE,AND THE INDENTURE." No arrangements have been made for an alternate lessee or sublessee
of the Leased Property should the County terminate the Lease. Upon termination of the Lease,there is no
assurance of any payment of the Certificates or interest on the Certificates by the County or the Trustee.
IF THE CERTIFICATES ARE REDEEMED SUBSEQUENT TO A TERMINATION OF THE
LEASE TERM FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT
THEREOF AND ACCRUED INTEREST THEREON, SUCH PARTIAL PAYMENT WILL BE
DEEMED TO CONSTITUTE A REDEMPTION IN FULL OF THE CERTIFICATES PURSUANT TO
THE INDENTURE; AND UPON SUCH A PARTIAL PAYMENT, NO OWNER OF ANY
CERTIFICATE WILL HAVE ANY FURTHER CLAIMS FOR PAYMENT UPON THE TRUSTEE OR
THE COUNTY.
Sources of Base Rentals and Additional Rentals are Limited to Specifically Appropriated Funds
The obligation of the County to pay Base Rentals and Additional Rentals is limited to those County
funds that are specifically budgeted and appropriated annually by the Board for such purpose. The Lease
directs the officer of the County charged at any time with the responsibility of formulating budget proposals
with respect to the Leased Property to include,in the annual budget proposals submitted to the Board,items
for all payments required under the Lease for the ensuing Fiscal Year,until such time(if any)as the County
determines not to renew and terminate the Lease. The County may not terminate the Lease with respect to
less than all of the Leased Property.
The Lease provides that it is the intention of the County that any decision to effect an Appropriation
for the Base Rentals and Additional Rentals shall be made solely by the Board in its absolute discretion and not
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by any other official of the County. See Article IV of the form of the Lease included in"APPENDIX B—
FORMS OF THE SITE LEASE, THE LEASE, AND THE INDENTURE." No provisions of the Lease,
the Certificates,or the Site Lease shall be construed or interpreted as creating a debt or multiple fiscal
year direct or indirect debt or other financial obligation whatsoever of the County within the meaning
of any constitutional or statutory limitation or requirement. None of the Lease,the Indenture,the Site
Lease,or the Certificates have directly or indirectly obligated the County to make any payments beyond
those budgeted and appropriated for the County's then current Fiscal Year.
Factors that May Cause Insufficiency of Expected Sources of Payment of Base Rentals and
Additional Rentals
Economic and Other Factors Beyond the Control of the County. Although the County is not
obligated to pay Base Rentals and Additional Rentals from any particular revenue source, it is the current
expectation of the Board that Base Rentals and Additional Rentals will be paid (to the extent funds are
appropriated therefor each year)from amounts in the ECO Trails Fund, Capital Improvements Fund and,
if needed,from the General Fund. See"COUNTY FINANCIAL INFORMATION."
The major sources of available amounts in the ECO Trails Fund and the Capital Improvements
Fund are expected to be revenues from portions of the sales taxes dedicated to such funds and trail impact
fees that the County is considering imposing,which would comprise a source of funding for the ECO Trails
Fund. Each of these revenue sources is subject to fluctuation, and may be impacted by adverse changes in
national and local economic and financial conditions generally,reductions in the rates of employment and
economic growth in the County,the State and the region,a decrease in rates of population growth and rates
of residential and commercial development in the County,the State and the region,annual snowfall/weather
and various other factors.
Collections of sales tax revenues are subject to fluctuations in consumer spending. Such
fluctuations cause sales tax revenues to increase along with the increasing prices brought about by inflation,
but also cause collections to be vulnerable to adverse economic conditions and reduced spending.
Consequently,the rate of sales tax collections can be expected to correspond generally to economic cycles.
The County has no control over general economic cycles and is unable to predict what general economic
factors or cycles will occur while the Certificates remain outstanding. The County was subject to various
public health orders related to COVID-19 in 2020 through mid-2021 that temporarily required non-essential
businesses to close and that limited occupancy for businesses. The County is no longer subject to any
public health orders related to COVID-19 and there are no restrictions on occupancy. See"—COVID-19
Risks."
Reliance on Tourism and Ski Industry. The County is reliant upon tourism, including the ski
industry and associated real estate development,for generation of a large portion of its sales tax and property
tax revenues. Consequently,the County is vulnerable to factors which could cause the level of visitors to
decrease,including lack of snow,increases in the prices of lift tickets, decreases in accessibility to the Vail
and Beaver Creek ski areas(including reductions in flights,increases in the cost of air travel,and increases
in the price of gasoline or other factors making automobile travel more expensive), economic downturns,
unwillingness or inability of people to travel by air for any reason, and the ability of the ski industry to
remain solvent. In addition, summer tourism could be impacted by, among other things, wildfires and a
decrease in the County's water supply as a result of drought and climate change. The County has worked
to proactively address these environmental and social risks; however, no assurance is provided that the
foregoing or other factors will not affect the County's tourist activity or general spending.
In addition, other circumstances (over which the County has no control) may adversely affect
tourist activity or general spending.Such circumstances may include,among others,unwillingness to travel
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to the County due to terrorist attacks or other hostile acts occurring in the United States or other parts of the
world, a decrease in rates of population growth in the County, the State and the region and various other
factors.
The resort,tourism, hospitality and ski industries have recently been significantly and disparately
impacted by the business closures and restrictions resulting from public health orders during the global
pandemic. Both the Vail and Beaver Creek ski areas opened for on-mountain ski access for the 2020/2021
season and were able to remain open for the entire 2020/2021 season. The County is no longer subject to
any public health orders related to COVID-19 and there are no restrictions on occupancy. See"—COVID-
19 Risks."
Tax Increment Areas. There are currently urban renewal areas within the County. If additional
urban renewal areas are created and tax increment financing(property tax)is authorized for use within such
areas, increases in the amount of property tax revenue available to the County within such areas may be
limited in the future.
Existing Financial Obligations. The County incurred financial obligations and has entered into
two lease purchase agreements in connection with certificates of participation, the proceeds of which
financed various projects in the County. The County has been making appropriations for such lease
payments from the Capital Improvement Fund. Although the County has been making the payments from
the Capital Improvement Fund, no particular revenues of the County are pledged to the payment of these
existing obligations. The County may determine to make appropriations to make lease payments for the
existing obligations from the same sources of revenue that it currently intends to make appropriations from
for the Certificates, namely the ECO Trails Fund and the Capital Improvement Fund. See "DEBT
STRUCTURE—Revenue and Other Financial Obligations"for a description of the County's revenue and
other financial obligations.
Factors that Could Impact Value of Property if Lease is Terminated
General. The County will retain fee simple title to the Leased Property and the Trustee will have
a leasehold interest in the Leased Property pursuant to the Site Lease. Upon termination of the Lease while
any Certificates are still outstanding,the Trustee will have the right to use and possess the Leased Property
but only during the remaining term of the Site Lease. However, a potential purchaser of the Certificates
should not assume that it will be possible for the Trustee to sublease the Leased Property or otherwise sell
or dispose of its leasehold interest in the Leased Property, or any portion thereof, for an amount equal to
the aggregate principal amount of the Certificates then outstanding plus accrued interest thereon or that
such subleasing or disposal can be accomplished in time to pay any installment of principal or interest on
the Certificates when due or prior to December 31,2051*,the termination date of the Site Lease.
Valuation. No current appraisal valuation of the Leased Property is available. For insurance
purposes,the County has assigned the value of$5,819,311 to Health and Human Services Building and a
value of$14,492,254 to Eagle County Building. However,the Trustee is not able to sell the Leased Property
upon the occurrence of an Event of Lease Default or an Event of Nonappropriation and the insured value
of the buildings is not indicative of amounts the Trustee may receive in exercising its remedies under the
Lease and the Indenture. There is no assurance that it will be possible for the Trustee to sublease the Leased
Property or otherwise sell or dispose of its leasehold interest in the Leased Property,or any portion thereof,
*
Preliminary;subject to change.
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for an amount equal to the aggregate principal amount of the Certificates then outstanding plus accrued
interest thereon. See"SECURITY AND SOURCES OF PAYMENT—The Leased Property."
Ability of Trustee to Perform its Obligations under the Site Lease. Under the Site Lease, in the
event that the Lease is terminated for any reason and the Site Lease is not terminated,the Trustee, or any
purchaser, sublessee or assignee of the Leased Property (including the leasehold interests of the Trustee
resulting from the Site Lease)are required 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 and shall
obtain and keep in force(a)commercial general liability insurance against claims for persona injury,death,
or damage to property of others occurring on or in the Leased Property in an amount not less than
$2,000,000 and (b) property insurance in an amount not less than the full replacement value of the
improvements and structure constituting Leased Property. However,the Trustee's resources to pay for such
obligations is limited to (i) the proceeds of any sale, subleasing or assignment of the Leased Property,
(ii)the Trust Estate, or(iii)other moneys furnished to the Trustee under the Indenture and in the absence
of available moneys identified in the preceding clauses (i) through (iii), the Trustee will be under no
obligation to obtain or keep in force such insurance coverages. There is no assurance that if the Lease is
terminated,the Trustee will have sufficient resources to perform its obligations under the Site Lease.
Zoning and Other Use Restrictions. The approximately 2.9-acre area upon which the Leased
Property is located is currently zoned in accordance with the Eagle Municipal Code as a"Public Area."A
public area district is intended to provide for any use owned and/or operated by a public entity. It is possible
that such zoning or future zoning changes could limit the alternate uses of the Leased Property absent a
zoning change. No assurance is provided that such zoning would not restrict the Trustee's ability to sell or
dispose of its leasehold interest in the Leased Property or sublease the Leased Property.
Encumbrances. The Leased Property is subject to various encumbrances, which are Permitted
Encumbrances for purposes of the Site Lease and the Lease. See Exhibit B to the Lease of the form of the
Lease included in "APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE, AND THE
INDENTURE"for a list of Permitted Encumbrances.The ability of third parties to exercise their rights under
the Permitted Encumbrances may make the Leased Property less attractive if the Trustee tries to sell or dispose
of its leasehold interest or sublease the Leased Property.
No Reserve Fund
No reserve fund has been established to secure payment on the Certificates.
Limited Duration of Site Lease
The term of the Site Lease is ten (10) years longer than the term of the Certificates. Upon
termination of the Lease for any reason (including the occurrence of an Event of Nonappropriation), the
Trustee may assign its interest in the Site Lease and may foreclose through the courts on, or sell, lease,
sublease or otherwise liquidate or dispose of,its interest in the Leased Property. The net proceeds received
from those activities are to be applied to pay the Certificates. However,due to the limited term of the Site
Lease,the Trustee may find it difficult or impossible to locate third parties that are interested in accepting
an assignment of the Trustee's rights in the Leased Property. Further, the limited term of the Site Lease
may make it difficult or impossible for the Trustee to collect revenues over the remaining term of the Site
Lease in an amount sufficient to pay the Certificates in full.
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Enforceability of Remedies; Liquidation Delays
Under the Indenture and the Lease, the Trustee has the right to take possession of and dispose of
the Trustee's leasehold interest in the Leased Property upon a termination of the Lease while any
Certificates are still Outstanding. However, the enforceability of the Lease is subject to applicable
bankruptcy laws, equitable principles affecting the enforcement of creditors' rights generally and liens
securing such rights, and the police powers of the County. Because of the use of the Leased Property by
the County for the public welfare,a court in any action brought to enforce the remedy of the Trustee to take
possession of the Leased Property may delay such possession for an indefinite period, even though the
County may have terminated the Lease or be in default thereunder. The right of the Trustee to obtain
possession of the Leased Property and to sell, lease, or sublease portions of the Leased Property could be
delayed until appropriate alternative space is obtained by the County. As long as the Trustee is unable to
take possession of the Leased Property or any other projects or property which may subsequently be
approved in connection with the execution and delivery of Additional Certificates, it will be unable to
sublease or otherwise dispose of its leasehold interests in the Leased Property as permitted under the Lease
and the Indenture or to redeem or pay the Certificates except from funds otherwise available to the Trustee
under the Indenture. See"SECURITY AND SOURCES OF PAYMENT."
Effect of Termination on Exemption from Taxation and on Exemption from Registration
Special Counsel has specifically disclaimed any opinion as to the effect that termination of the
Lease may have upon the treatment for federal or State income tax purposes of amounts received by the
registered owners of the Certificates. There is no assurance that any amounts representing interest received
by the registered owners of the Certificates after termination of the Lease as a consequence of an Event of
Nonappropriation or an Event of Default will be excludable from gross income under federal or State laws.
In view of past private letter rulings by the United States Department of Treasury,registered owners of the
Certificates should not assume that payments allocable to interest received from the Certificates would be
excludable from gross income for federal or State income tax purposes.
Special Counsel also has disclaimed any opinion as to the transferability of the Certificates under
the federal securities laws after a termination of the Lease,and,upon such termination,there is no assurance
that registered owners of the Certificates would be able to transfer their interests without compliance with
federal securities laws.
Condemnation Risk
In the mid-1990's, the City of Sheridan, Colorado ("Sheridan") exercised its eminent domain
powers to acquire property it previously had leased under an annually terminable lease purchase agreement.
By condemnation, Sheridan sought to acquire the property at a fraction of the remaining lease payments
(which would be paid to owners of certificates of participation in Sheridan's lease). Sheridan's
condemnation suit was successful; however, Sheridan was unable to pay the court-determined amount
representing the value of the property and eventually vacated the building in favor of the trustee. Sheridan
eventually reached a settlement with the trustee and reacquired possession of the administration building
from the trustee. Pursuant to this settlement, certificate holders reportedly received less than half of the
amounts due them under the certificates. The County considers the occurrence of a situation such as the
one described above to be unlikely because,unlike Sheridan,the County's tax base is not heavily dependent
upon a single taxpayer;however,there is no assurance that the Leased Property(or portions thereof)would
not be condemned in the future.
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Casualty Risk
If all, substantially all or any portion of the Leased Property is damaged or destroyed by any
casualty,there is no assurance that casualty insurance proceeds and other available moneys of the County
will be sufficient either to repair or replace the damaged or destroyed property or to pay the Certificates,if
the Certificates are called for mandatory redemption as a result of such casualty. See "THE
CERTIFICATES—Redemption." Delays in the receipt of casualty insurance proceeds pertaining to the
Leased Property or delays in the repair,restoration or replacement of such property damaged or destroyed
could have an adverse effect upon the ability of the County to make timely rental payments under the Lease.
Insurance Risk
During the term of the Lease,the Lease requires that the County provide casualty, public liability
and property damage insurance for the Leased Property in an amount at least equal to the estimated
replacement value of the Leased Property. Such insurance policy or policies may have a deductible not to
exceed $150,000. The County has secured property and casualty coverage through its broker Arthur J.
Gallagher Risk Management Services,Inc.and with insurance carriers approved to operate in Colorado by
the State Insurance Commissioner that covers its existing property as described in "THE COUNTY—
Insurance";however,such policies are subject to annual renewal. The County may provide such insurance
through commercial policies or,in its discretion,through a qualified self-insurance pool. For a description
of the insurance requirements related to the Leased Property(including requirements related to a qualified
self-insurance pool), see Section 8.05 of the form of the Lease included in"APPENDIX B—FORMS OF
THE SITE LEASE,THE LEASE,AND THE INDENTURE."
There is no assurance that, in the event the Lease is terminated as a result of damage to or
destruction of the Leased Property, moneys made available by reason of any such occurrence will be
sufficient to redeem the Certificates at a price equal to the principal amount thereof outstanding plus accrued
interest to the redemption date. See"THE CERTIFICATES—Redemption."
Trustee's Limited Obligation
The Trustee has no assets or revenues available for payment of the Certificates other than its right
to use proceeds of the Certificates under the Indenture, its rights to Base Rentals and Additional Rentals
under the Lease and its other rights and interests under the Indenture and the Lease.
Under the Site Lease,in the event that(a)the Lease is terminated for any reason,(b)the Site Lease
is not terminated, and(c)the Trustee subleases all or an portion of the Leased Property or sells or assigns
its interest in the Site Lease, the Trustee, or any purchaser, sublessee or assignee of the Leased Property
(including the leasehold interests of the Trustee resulting from the Site Lease)are required 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 and shall obtain and keep in force (i) commercial general liability
insurance against claims for persona injury, death, or damage to property of others occurring on or in the
Leased Property in an amount not less than $2,000,000 and(ii) property insurance in an amount not less
than the full replacement value of the Leased Property. However,the Trustee's resources to pay for such
obligations is limited to (A) the proceeds of any sale, subleasing or assignment of the Leased Property,
(B)the Trust Estate, or (C) other moneys furnished to the Trustee under the Indenture. There is no
assurance that if the Lease is terminated,the Trustee will have sufficient resources to perform its obligations
under the Site Lease.
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COVID-19 Risks
The spread of the coronavirus disease 2019 ("COVID-19") is currently altering the behavior of
businesses and individuals in a manner that has had,and is continuing to have,significant effects on global,
national, and local economies, including the economy of the State and its local governments, as more
particularly described below in "—Economic Impact of COVID-19." State and local governments,
including the State, have announced orders, recommendations and other measures intended to minimize
interpersonal contact and slow the spread of COVID-19. As of April 16,2021,the State has evolved into
more limited COVID-19 restrictions,allowing counties to implement regulations at a local level while still
maintaining some limited requirements across the State. While COVID-19 vaccines are currently being
administered in Colorado,it is unclear how long widespread vaccination will take and to what degree and
in what timeframe the achievement of widespread vaccination may mitigate the economic impacts of the
COVID-19 pandemic.
Property Tax Deferrals and Potential Future Orders and Legislation Affecting Property Taxes.
On March 20,2020,the Governor of the State issued Executive Order D 2020-012,which authorized county
treasurers in the State to suspend or waive delinquent interest through April 30,2020 that may accrue as a
result of delinquent tax payments. In addition, the General Assembly passed HB20-1421 ("HB 1421"),
which went into effect on June 14,2020 and permitted counties to temporarily reduce or waive the interest
rate for late payments or entirely suspend the accrual of interest for any specified period of time between
June 15, 2020 and October 1, 2020. Both Executive Order D 2020-012 and HB 1421 have expired.
However,they are indicative of actions that may be taken in the future by the Governor and/or the Colorado
Legislature which could impact property tax collections within the State. In the event that the Governor of
the State issues additional executive orders, or legislation is passed which authorizes or directs county
treasurers to further extend payment deadlines,waive interest or forgive liability for property taxes or take
other actions relating to the collection of property taxes,there can be no assurance that such actions would
not have an adverse effect on the amount or timing of the County's property tax revenue.
Sales Tax. State and local governments, including the State, have announced orders,
recommendations and other measures intended to minimize interpersonal contact and slow the spread of
COVID-19, including"stay at home orders" and orders limiting capacity at various businesses. Although
many small businesses faced financial hardships, sales tax collections in the County for 2020 were 4.6%
($1.4 million)greater than 2019 collections,largely due to increases in collections from the County's sales
tax on marijuana and tobacco products.There are currently no capacity restrictions in place in the County
with respect to businesses.
County Response to COVID-19. The County acted swiftly in its response to the COVID-19
pandemic. The first case of COVID-19 was reported in the County on March 6, 2020 and the County
released its first public health order on March 12,2020. Local public health orders were revised more than
15 times to help slow the spread of COVID-19,protect capacity at healthcare facilities,and limit the social
and economic impacts. Throughout the COVID-19 pandemic, local residents and visitors alike sought
outdoor recreation in and around the County,which insulated the County from the most negative economic
impacts for the local community. Although many small businesses faced financial hardships, sales tax
collections in the County were 4.6%($1.4 million)greater than 2019 collections, largely due to increases
in collections from the County's sales tax on marijuana and tobacco products,and property taxes increased
by 9.3%($2.4 million). The County received over$9 million in COVID-19 related grant funds that were
used primarily for the General Fund, public health, human services and transportation operations. The
vaccination push within the County was also successful with just under 80% of the eligible residents
receiving at least one vaccine dose and 75% being fully vaccinated as of July 1, 2021, according to the
Colorado Department of Public Health&Environment.This high rate of vaccination has stabilized disease
rates at low levels allowing all local public health orders to be rescinded on May 19, 2021. Currently,the
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County is not subject to any public health orders related to COVID-19 and there are no restrictions on
occupancy or gathering sizes.
Economic Impact of COVID-19. The changes in behavior of businesses and individuals in
response to the spread of COVID-19,as well as mandates and recommendations by national,State and local
governments to minimize interpersonal contact and slow the spread of COVID-19 has had, and is
continuing to have, significant effects on global, national, and local economies, including the economy of
the State and its local governments. Such effects include, but are not limited to, an increase in
unemployment and unemployment insurance claims, a decline in consumer spending and a decline in
certain business activities.
Although the County has not experienced a decrease of its sales tax and property tax revenues as a
result of COVID-19, it is not possible to predict the duration or extent of the COVID-19 pandemic, the
implementation,duration or expansion of executive orders,public health orders,regulations and legislation
and related business closings, and the resulting future economic impacts. There can be no assurance that
the spread of COVID-19 and the implementation of restrictions on a local,State and national level will not
materially impact the local, State and national economies, nor can there be any assurance that such
economic impacts will not have a material adverse impact on the funds anticipated to be used for payment
of the Base Rentals and Additional Rentals or the timing of the receipt thereof.
Legal Constraints on County Operations; Future Changes in Law
Various State laws and constitutional provisions govern operations of the County;the imposition
and collection of ad valorem property taxes, sales taxes and other revenue; and impose limitations on
revenues and spending of the State and local governments,including the County. There can be no assurance
that there will not be changes in interpretation of,or additions to,the applicable laws and provisions which
would have a material adverse effect, directly or indirectly, on the affairs of the County. Such changes
could include,but are not limited to,future restrictions on real estate development and growth in the County
and State law changes in the items that are subject to sales taxes or exemptions therefrom.
Changes in Federal and State Tax Law
From time to time, there are Presidential proposals, proposals of various federal committees, and
legislative proposals in the Congress and in the states that, if enacted,could alter or amend the federal and
state tax matters referred to herein or adversely affect the marketability or market value of the Certificates
or otherwise prevent holders of the Certificates from realizing the full benefit of the tax exemption of the
Certificate Interest Portion. Further, such proposals may impact the marketability or market value of the
Certificates simply by being proposed. It cannot be predicted whether or in what form any such proposal
might be enacted or whether if enacted it would apply to bonds issued. In addition, regulatory actions are
from time to time announced or proposed and litigation is threatened or commenced which,if implemented
or concluded in a particular manner,could adversely affect the market value,marketability or tax status of
the Certificates. It cannot be predicted whether any such regulatory action will be implemented, how any
particular litigation or judicial action will be resolved, or whether the Certificates would be impacted
thereby.
Purchasers of the Certificates should consult their tax advisors regarding any pending or proposed
legislation,regulatory initiatives or litigation.
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THE CERTIFICATES
Description
The Certificates will be issued in the principal amount,will be dated,and will mature as indicated
on the inside cover page of this Official Statement.For a complete statement of the details and conditions
of the Certificates,reference is made to the Indenture,a copy of which is included in APPENDIX B hereto.
Authorized Denominations
The Certificates are being issued in "Authorized Denominations," defined in the Indenture as
$5,000 or integral multiples thereof.
Payment of Principal and Interest
The Certificates will bear interest at the rates set forth on the inside cover hereof(computed on the
basis of a 360-day year of twelve 30-day months) payable semiannually on each June 1 and December 1
(each an"Interest Payment Date"),commencing December 1,2021.
Except for any Certificates for which DTC is acting as Depository or for an Owner of$1,000,000
or more in aggregate principal amount of Certificates,the principal of,premium,if any,and interest on all
Certificates is to be payable to the Owner thereof at its address last appearing on the registration,books
maintained by the Trustee. In the case of any Certificates for which DTC is acting as Depository, the
principal of,premium,if any,and interest on such Certificates is to be payable as directed in writing by the
Depository. In the case of an Owner of$1,000,000 or more in aggregate principal amount of Certificates,
the principal of,premium,if any,and interest on such Certificates is to be payable by wire transfer of funds
to a bank account designated by the Certificate Owner in written instructions to the Trustee.
Interest is to be paid to the Owner of each Certificate, as shown on the registration books kept by
the Trustee,as of the close of business on the Regular Record Date,irrespective of any transfer of ownership
of Certificates subsequent to the Regular Record Date and prior to such Interest Payment Date, or on a
special record date, which is to be fixed by the Trustee for such purpose, irrespective of any transfer of
ownership of Certificates subsequent to such special record date and prior to the date fixed by the Trustee
for the payment of such interest. Notice of the special record date and of the date fixed for the payment of
such interest shall be given by providing a copy thereof by electronic means or by first-class mail postage
prepaid at least ten days prior to the special record date,to the Owner of each Certificate upon which interest
will be paid,determined as of the close of business on the day preceding the giving of such notice.
Payments for the principal of and interest on the Certificates will be made as described in
"APPENDIX F—BOOK-ENTRY-ONLY SYSTEM."
Redemption
Optional Redemption. The Certificates maturing on or prior to December 1,20[ 1 are not to be
subject to optional redemption prior to their respective maturity dates. The Certificates maturing on and
after December 1,20_are to be subject to redemption prior to their respective maturity dates at the option
of the County, in whole or in part,in integral multiples of$5,000,and if in part in such order of maturities
as the County is to determine and by lot within a maturity,on December 1,20 and on any date thereafter,
at a redemption price equal to the principal amount of the Certificates so redeemed plus accrued interest to
the redemption date without a premium.
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Mandatory Sinking Fund Redemption. The Certificates maturing on December 1, 20[ 1
(hereinafter referred to as "Term Certificates") are subject to mandatory sinking fund redemption at a
price equal to the principal amount thereof plus accrued interest thereon to the redemption date. Such
Certificates are to be selected by lot in such manner as the County is to determine (giving proportionate
weight to Certificates in denominations larger than$5,000).
As and for a sinking fund for the redemption of the Term Certificates maturing on December 1,
20[ 1, the County is to deposit in the Base Rentals Fund moneys which are sufficient to redeem(after
any credit as hereinafter provided) the following principal amount of the Term Certificates maturing on
December 1,20[ 1:
Redemption Date
(December 1) Principal Amount
20 $
The remaining$ of the Term Certificates maturing on December 1,20[ 1 are to be
paid upon presentation and surrender at maturity.
On or before the 30th day prior to each such sinking fund payment date,the Trustee will proceed
to call the Term Certificates indicated above(or any Term Certificate or Certificates issued to replace such
Term Certificates) for redemption from the sinking fund on the next December 1 and give notice of such
call without other instruction or notice from the County. The amount of each sinking fund installment may
be reduced by the principal amount of any Term Certificates of the maturity and interest rate which are
subject to sinking fund redemption on such date and which prior to such date have been redeemed
(otherwise than through the operation of the sinking fund)or otherwise canceled and not theretofore applied
as a credit against a sinking fund installment. Such reductions, if any, are to be applied in such year or
years as may be determined by the County.
Extraordinary Mandatory Redemption. If the Lease is terminated by reason of the occurrence of
(a) an Event of Nonappropriation, (b) an Event of Lease Default, or (c) in the event that (i) the Leased
Property is damaged or destroyed in whole or in part by fire or other casualty; (ii)title to,or the temporary
or permanent use of, the Leased Property has been taken by eminent domain by any governmental body;
(iii) breach of warranty or any material defect with respect to the Leased Property becomes apparent; or
(iv)title to or the use of all or any part of the Leased Property is lost by reason of a defect in title thereto,
and the Net Proceeds of any insurance,performance bond or condemnation award,or Net Proceeds received
as a consequence of defaults under contracts relating to the Leased Property, made available by reason of
such occurrences,are to be insufficient to pay in full,the cost of repairing or replacing the Leased Property,
and the County does not appropriate sufficient funds for such purpose or cause the Lease to be amended in
order that Additional Certificates may be executed and delivered pursuant to the Indenture for such purpose,
the Certificates are required to be called for redemption, except as hereinafter provided. If called for
redemption,the Certificates are to be redeemed in whole on such date or dates as the Trustee may determine,
for a redemption price equal to the principal amount thereof, plus accrued interest to the redemption date
(subject to the availability of funds as described below).
If the Net Proceeds, including the Net Proceeds from the exercise of any Lease Remedy under the
Lease, otherwise received and other moneys then available under the Indenture are insufficient to pay in
full the principal of and accrued interest on all Outstanding Certificates,the Trustee may, or at the request
of the Owners of a majority in aggregate principal amount of the Certificates Outstanding, and upon
indemnification as to fees,costs and expenses as provided in the Indenture, without any further demand or
notice,is to,exercise all or any combination of Lease Remedies as provided in the Lease and the Certificates
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are to be redeemed by the Trustee from the Net Proceeds resulting from the exercise of such Lease Remedies
and all other moneys,if any,then on hand and being held by the Trustee for the Owners of the Certificates.
If the Net Proceeds resulting from the exercise of such Lease Remedies and other moneys are
insufficient to redeem the Certificates at 100%of the principal amount thereof plus interest accrued to the
redemption date, then such Net Proceeds resulting from the exercise of such Lease Remedies and other
moneys are to be allocated proportionately among the Certificates, according to the principal amount
thereof Outstanding. In the event that such Net Proceeds resulting from the exercise of such Lease
Remedies and other moneys are in excess of the amount required to redeem the Certificates at 100%of the
principal amount thereof plus interest accrued to the redemption date, then such excess moneys are to be
paid to the County as an overpayment of the Purchase Option Price. Prior to any distribution of the Net
Proceeds resulting from the exercise of any of such remedies,the Trustee is to be entitled to payment of its
reasonable and customary fees for all services rendered in connection with such disposition, as well as
reimbursement for all reasonable costs and expenses, including attorneys' fees, incurred thereby, from
proceeds resulting from the exercise of such Lease Remedies and other moneys.
IF THE CERTIFICATES ARE REDEEMED PURSUANT TO THE INDENTURE PROVISIONS
DESCRIBED ABOVE FOR AN AMOUNT LESS THAN THE AGGREGATE PRINCIPAL AMOUNT
THEREOF PLUS INTEREST ACCRUED TO THE REDEMPTION DATE, SUCH PARTIAL
PAYMENT IS TO BE DEEMED TO CONSTITUTE A REDEMPTION IN FULL OF THE RELATED
CERTIFICATES, AND UPON SUCH A PARTIAL PAYMENT NO OWNER OF SUCH
CERTIFICATES IS TO HAVE ANY FURTHER CLAIM FOR PAYMENT AGAINST THE TRUSTEE
OR THE COUNTY.
Notwithstanding the foregoing or any other provisions to the contrary in the Lease or the Indenture,
if the Net Proceeds resulting from the exercise of such Lease Remedies are insufficient to redeem the
Certificates at 100%of the principal amount thereof plus interest accrued to the redemption date,the Trustee
may, or at the request of the Owners of a majority in aggregate principal amount of the Certificates
Outstanding, and upon indemnification as to fees, costs, and expenses as provided in the Indenture, is to,
determine that the Certificates will not be subject to extraordinary mandatory redemption under the
Indenture, in which event the Trustee will not apply any Net Proceeds or other available moneys to the
redemption of any Certificates prior to their respective maturity dates. In such event, the Trustee is to
(a)allocate such Net Proceeds (together with any other available moneys held under the Indenture),
proportionately among all Outstanding Certificates, and (b) apply such allocation of Net Proceeds to the
payment of the principal of and interest on the Certificates on the regularly scheduled maturity and Interest
Payment Dates of the Certificates.
Partial Redemption.The Certificates are to be redeemed only in integral multiples of$5,000. The
Trustee is to treat any Certificate of denomination greater than $5,000 as representing that number of
separate Certificates each of the denomination of$5,000 as can be obtained by dividing the actual principal
amount of such Certificate by$5,000.Upon surrender of any Certificate for redemption in part,the Trustee
is to execute and deliver to the Owner thereof,at no expense of the Owner,a new Certificate or Certificates
of Authorized Denominations in an aggregate principal amount equal to the unredeemed portion of the
Certificates so surrendered.
Notice of Redemption. Whenever Certificates are to be redeemed under any provision of the
Indenture,the Trustee is to, not less than thirty and not more than sixty days prior to the redemption date
(except for Extraordinary Mandatory Redemption, which notice shall be immediate), send notice of
redemption to all Owners of all Certificates to be redeemed by electronic means or by mail at their registered
addresses, by first-class mail, postage prepaid, or in the event that the Certificates to be redeemed are
registered in the name of the Depository, such notice may,in the alternative,be given by electronic means
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in accordance with the requirements of the Depository. In addition,the Trustee is to at all reasonable times
make available to the County and any Certificate Owner, including the Depository, if applicable,
information as to Certificates which have been redeemed or called for redemption. Any notice of
redemption is to: (a) identify the Certificates to be redeemed; (b) specify the redemption date and the
redemption price;(c)in the event the redemption is occurring under the terms of the Indenture described in
"—Optional Redemption"above, state that the County has given notice of its intent to exercise its option
to purchase or prepay Base Rentals under the Lease;(d)state that such redemption is subject to the deposit
of the funds related to such option by the County on or before the stated redemption date;and(e)state that
on the redemption date the Certificates called for redemption will be payable at the principal corporate trust
office of the Trustee and that from that date interest will cease to accrue.
Any notice of redemption may contain a statement that the redemption is conditioned upon the
receipt by the Trustee of funds on or before the date fixed for redemption sufficient to pay the redemption
price of the Certificates so called for redemption,and that if such funds are not available,such redemption
is to be canceled by written notice to the Owners of the Certificates called for redemption in the same
manner as the original redemption notice was given.
Redemption Payments.On or prior to the date fixed for redemption,funds are to be deposited with
the Trustee to pay the Certificates called for redemption, together with accrued interest thereon to the
redemption date, and any required premium. Upon the giving of notice and the deposit of such funds as
may be available for redemption pursuant to the Indenture(which, in certain cases as set forth above may
be less than the full principal amount of the Outstanding Certificates and accrued interest thereon to the
redemption date), interest on the Certificates or portions thereof thus called is to no longer accrue after the
date fixed for redemption. Payments in full redemption are to be accompanied by a written designation
prepared by the Trustee stating the portions of the payment representing principal, interest, and premium,
if any.
Certain Indenture Provisions
The following is a description of certain provisions of the Indenture and is subject in all respects to
the more specific provisions of the Indenture. See the form of the Indenture appended to this Official
Statement as part of "APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE, AND THE
INDENTURE" for definitions of certain capitalized terms used below and elsewhere in this Official
Statement and additional summaries of provisions of the Indenture.
Application of Revenues and Other Moneys. All Base Rentals payable under the Lease and other
Revenues are to be paid directly to the Trustee. If the Trustee receives any other payments on account of
the Lease,the Trustee is to immediately deposit the same as described below.
Except as otherwise provided in the Lease, the Trustee is to deposit all Revenues and any other
payments received in respect of the Lease, immediately upon receipt thereof, to the Base Rentals Fund in
an amount required to cause the aggregate amount on deposit therein to equal the amount then required to
make the principal and interest payments due on the Certificate and any Additional Certificates delivered
pursuant to the Indenture on the next Interest Payment Date. In the event that the Trustee receives
Prepayments under the Lease,the Trustee is to apply such Prepayments to the Optional Redemption of the
Certificate and any Additional Certificates delivered pursuant to the Indenture or portions thereof in
accordance with the Indenture.
Base Rentals Fund. The Base Rentals Fund is to be used for the deposit of all Revenues, upon
receipt thereof by the Trustee,except as otherwise provided in the Lease. Moneys in the Base Rentals Fund
are to be used solely for the payment of the principal of and interest on the Certificate and any Additional
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Certificates delivered pursuant to the Indenture whether on an Interest Payment Date, at maturity or upon
prior redemption,except as provided in the Indenture and described in"—Rebate Fund"below.
The Base Rentals Fund is to be in the custody of the Trustee. Base Rental payments are due and
payable to the Trustee on or before each May 15 and November 15 annually. The Trustee is to withdraw
sufficient funds from the Base Rentals Fund to pay the principal of and interest on the Certificate and any
Additional Certificates delivered pursuant to the Indenture as the same become due and payable whether
on an Interest Payment Date, at maturity or upon prior redemption, which responsibility, to the extent of
the moneys therein,the Trustee accepts in the Indenture.
Any moneys held in the Base Rentals Fund are to be invested by the Trustee in accordance with
the Indenture.
Rebate Fund. To the extent necessary to comply with the provisions of the Tax Certificate,there
is to be deposited in the Rebate Fund investment income on moneys in any fund created under the Indenture
(except defeasance escrows). In addition to the deposit of investment income as provided in the Indenture,
there is to be deposited into the appropriate account in the Rebate Fund moneys received from the County
as Additional Rentals for rebate payments pursuant to the Lease; moneys transferred to an account in the
Rebate Fund from any other fund created under the Indenture;and all other moneys received by the Trustee
when accompanied by directions not inconsistent with the Lease or the Indenture that such moneys are to
be paid into an account of the Rebate Fund. The County will cause(or direct the Trustee to cause)amounts
on deposit in the appropriate account in the Rebate Fund to be forwarded to the United States Treasury at
the address and times provided in the Tax Certificate, and in the amounts calculated to ensure that the
County's rebate obligations are met,in accordance with the County's tax covenants in the Lease. Amounts
on deposit in the Rebate Fund are not to be subject to the lien of the Indenture to the extent that such
amounts are required to be paid to the United States Treasury.
If,at any time after the Trustee receives instructions by the County to make any payments from the
Rebate Fund, the Trustee determines that the moneys on deposit in an account of the Rebate Fund are
insufficient for the purposes thereof, and if the Trustee does not receive Additional Rentals or cannot
transfer investment income so as to make the amount on deposit in the appropriate account in the Rebate
Fund sufficient for its purpose,the Trustee may transfer moneys to an account in the Rebate Fund from the
Base Rentals Fund. Any moneys so advanced are to be included in the County's estimates of Additional
Rentals for the ensuing Fiscal Year pursuant to the Lease and are to be repaid to the fund from which
advanced upon payment to the Trustee of such Additional Rentals. Upon receipt by the Trustee of an
opinion of nationally recognized bond counsel to the effect that the amount in an account of the Rebate
Fund is in excess of the amount required to be therein pursuant to the provisions of the Tax Certificate,
such excess is to be transferred to the Base Rentals Fund.
The Trustee is not to be responsible for calculating rebate amounts or for the adequacy or
correctness of any rebate report. The County may, at its own expense, retain an independent firm of
professionals in such area to calculate such rebate amounts.
Notwithstanding the foregoing, in the event that the Lease has been terminated or the County has
failed to comply with the Lease so as to make the amount on deposit in the appropriate account in Rebate
Fund sufficient for its purpose,the Trustee is to make transfers of investment income or of moneys from
the above-described funds in such combination as the Trustee is to determine to be in the best interests of
the Certificate and any Additional Certificates delivered pursuant to the Indenture.
Costs of Execution and Delivery Fund. Upon the delivery of the Certificates there is to be
deposited into the Costs of Execution and Delivery Fund from the proceeds of the Certificates the amounts
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directed by the Indenture and the Underwriter is to deliver to the Trustee a closing memorandum detailing
the anticipated amounts of Costs of Execution and Delivery. Payments from the Costs of Execution and
Delivery Fund are to be made by the Trustee at the direction of the County in accordance with the closing
memorandum prepared by the Underwriter,which summarizes the approved costs of execution and delivery
of the Certificates. Any moneys held in the Costs of Execution and Delivery Fund are to be invested by
the Trustee in accordance with the Indenture. Upon the final payment of all Costs of Execution and
Delivery, as certified in writing by the County Representative, the Trustee is to transfer all moneys
remaining in the Costs of Execution and Delivery Fund to the County to be used to pay costs of the Project,
or is to credit such moneys to the Base Rentals Fund, as directed in writing by the County Representative.
Any amounts remaining in the Costs of Execution and Delivery Fund ninety(90)days after the execution
and delivery of the Certificates are to be credited to the Base Rentals Fund or used to pay costs of the
Project,as directed in writing by the County Representative.
Additional Certificates. So long as no Event of Indenture Default, Event of Nonappropriation or
Event of Lease Default has occurred and is continuing and the Lease Term is in effect, one or more series
of Additional Certificates may be executed and delivered upon the terms and conditions set forth in the
Indenture. The principal of any Additional Certificates is to mature on December 1 and interest payment
dates therefore are to be the same as the interest payment dates for the Certificate and any other Additional
Certificates previously delivered pursuant to the Indenture;otherwise the times and amounts of payment of
Additional Certificates are to be as provided in the supplemental resolution or indenture and amendment to
the Lease entered into in connection therewith.
Additional Certificates may be executed and delivered without the consent of or notice to the
Owners of Outstanding Certificates and any other Additional Certificates previously delivered pursuant to
the Indenture,to provide moneys to pay for any one or more of the following:
(a) the costs of making,at any time or from time to time,such substitutions,additions,
modifications,and improvements for or to the Leased Property as the County may deem necessary
or desirable,and as in accordance with the provisions of the Lease;or
(b) for the purpose of refunding or refinancing all or any portion of Outstanding
Certificates and any other Additional Certificates previously delivered pursuant to the Indenture.
In such case,the Costs of Execution and Delivery of the Additional Certificates,the amount,if any,
to be deposited to a separate reserve fund for such Additional Certificates and other costs reasonably related
to the purposes for which Additional Certificates are being executed and delivered may be included.
Additional Certificates may be executed and delivered only upon there being furnished to the
Trustee:
(a) Originally executed counterparts of a supplemental Indenture and related and
necessary amendments to the Site Lease and the Lease(including any necessary amendment to the
Base Rentals Schedule);and
(b) A commitment or other evidence that the amount of the title insurance policy
delivered in respect of the Certificate and any other Additional Certificates previously delivered
pursuant to the Indenture will be increased, if necessary, to reflect the amount of the Additional
Certificates and all other Outstanding Certificates and any other Additional Certificates previously
delivered pursuant to the Indenture (or such lesser amount) as shall be the maximum insurable
value of the real property included in the Leased Property); and
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(c) A written opinion of Special Counsel to the effect that:
(i) the execution and delivery of Additional Certificates have been duly
authorized and that all conditions precedent to the delivery thereof have been fulfilled;
(ii) the excludability of interest from gross income for federal income tax
purposes on the Outstanding Certificates and any other Additional Certificates previously
delivered pursuant to the Indenture will not be adversely affected by the execution and
delivery of the Additional Certificates being executed and delivered;and
(iii) the sale, execution and delivery of the Additional Certificates, in and of
themselves,will not constitute an Event of Indenture Default or an Event of Lease Default
nor cause any violation of the covenants or representations in the Indenture, in the Site
Lease or in the Lease;and
(iv) Written directions from the underwriter or placement agent with respect
of the Additional Certificates,together with written acknowledgment of the County,to the
Trustee to deliver the Additional Certificates to the purchaser or purchasers therein
identified upon payment to the Trustee of a specified purchase price.
Each Additional Certificate executed and delivered pursuant to the Indenture is to evidence a
proportionate interest in the rights to receive the Revenues under the Indenture and is to be ratably secured
with all Outstanding Certificates and any other Additional Certificates previously delivered pursuant to the
Indenture and in respect of all Revenues,and is to be ranked pari passu with such Outstanding Certificates
and any other Additional Certificates previously delivered pursuant to the Indenture and with Additional
Certificates that may be executed and delivered in the future, if any.
Events of Indenture Default. Each of the following is to be an Event of Indenture Default:
(a) Failure to pay the principal of or premium, if any, on any Certificate and any
Additional Certificates delivered pursuant to the Indenture when the same is to become due and
payable,whether at the stated maturity thereof or upon proceedings for redemption;
(b) Failure to pay any installment of interest on any Certificate and any Additional
Certificates delivered pursuant to the Indenture when the same is to become due and payable;
(c) the occurrence of an Event of Nonappropriation; or
(d) the occurrence of an Event of Lease Default.
Upon the occurrence of any Event of Indenture Default, of which the Trustee is required to take
notice by the Indenture,or if notice of an Event of Indenture Default is given as provided in the Indenture,
the Trustee is to give notice thereof to the Owners of the Certificates and any Additional Certificates
delivered pursuant to the Indenture,unless such Event of Indenture Default has been cured or waived. The
Trustee is to waive any Event of Nonappropriation which is cured by the County within 30 days of the
receipt of notice by the Trustee as provided by the Lease,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. The Trustee may waive any Event of Nonappropriation which is cured by the County
within a reasonable time with the procedure described in the preceding sentence.
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Remedies. If any Event of Indenture Default occurs and is continuing,the Trustee may,or is to at
the request of the Owners of a majority in aggregate principal amount of the Certificate and any Additional
Certificates delivered pursuant to the Indenture then Outstanding and upon indemnification as to costs and
expenses as provided in the Indenture,including reasonable attorney fees and expenses,without any further
demand or notice, enforce for the benefit of the Owners of the Certificate and any Additional Certificates
delivered pursuant to the Indenture each and every right of the Trustee as the lessee under the Site Lease
and the lessor under the Lease. In exercising such rights of the Trustee and the rights given the Trustee
under the Indenture, the Trustee may, or is to at the request of the Owners of a majority in aggregate
principal amount of the Certificate and any Additional Certificates delivered pursuant to the Indenture then
Outstanding and upon indemnification as to costs and expenses as provided in the Indenture, take such
action as, in the judgment of the Trustee with the advice of counsel, would best serve the interests of the
Owners of the Certificate and any Additional Certificates delivered pursuant to the Indenture, including
calling the Certificate and any Additional Certificates delivered pursuant to the Indenture for redemption
prior to their maturity in the manner and subject to the provisions of the Indenture and exercising the Lease
Remedies provided in the Lease; provided, however, that such action is not to include consequential or
punitive damages against the County,
Legal Proceedings by Trustee. If any Event of Indenture Default has occurred and is continuing,
the Trustee in its discretion may, and upon the written request of the Owners of a majority in aggregate
principal amount of all Outstanding Certificates and any Additional Certificates delivered pursuant to the
Indenture and receipt of indemnity to its satisfaction, shall, in its capacity of Trustee under the Indenture:
(a) By mandamus, or other suit, action or proceeding at law or in equity, enforce all
rights of the Owners of the Certificate and any Additional Certificates delivered pursuant to the
Indenture, including enforcing any rights of the Trustee in respect of the Trustee's leasehold
interests in the Leased Property including its rights as lessor under the Lease and as lessee under
the Site Lease and its rights under the Indenture and to enforce the provisions of the Indenture and
any collateral rights thereunder for the benefit of the Owners of the Certificate and any Additional
Certificates delivered pursuant to the Indenture; or
(b) By action or suit in equity enjoin any acts or things which may be unlawful or in
violation of the rights of the Owners of Certificate and any Additional Certificates delivered
pursuant to the Indenture; or
(c) Take any other action at law or in equity that may appear necessary or desirable to
enforce the rights of the Owners of Certificate and any Additional Certificates delivered pursuant
to the Indenture.
Owners of Certificates May Direct Proceedings.The Owners of a majority in aggregate principal
amount of Outstanding Certificates and any Additional Certificates delivered pursuant to the Indenture are
to have the right, after furnishing indemnity satisfactory to the Trustee, to direct the method and place of
conducting all remedial proceedings by the Trustee under the Indenture,provided that such direction is not
to be in conflict with any rule of law or with the Indenture or unduly prejudice the rights of minority Owners
of Certificate and any Additional Certificates delivered pursuant to the Indenture.
Limitations on Actions by Owners of Certificate and any Additional Certificates delivered
pursuant to the Indenture. No Owner of Certificate and any Additional Certificates delivered pursuant to
the Indenture is to have any right to pursue any remedy thereunder unless: (a)the Trustee has been given
written notice of an Event of Indenture Default;(b)the Owners of at least a majority in aggregate principal
amount of all Outstanding Certificates and any Additional Certificates delivered pursuant to the Indenture
have requested the Trustee, in writing,to exercise the powers therein granted to or pursue such remedy in
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its or their name or names;(c)the Trustee has been offered indemnity satisfactory to it against fees,costs,
expenses and liabilities, including reasonable attorney fees and expenses; and(d)the Trustee has failed to
comply with such request within a reasonable time.
Notwithstanding the any provision of the Indenture,the obligation of the Trustee is to be absolute
and unconditional to pay under the Indenture,but solely from the Revenues pledged under the Indenture,
the principal of, premium, if any, and interest on the Certificates to the respective Owners thereof on the
respective due dates thereof,and nothing in the Indenture is to affect or impair the right of action,which is
absolute and unconditional,of such Owners to enforce such payment.
Application of Moneys in Event of Indenture Default. Any moneys received, collected or held
by the Trustee following an Event of Indenture Default and any other moneys held as part of the Trust
Estate(except for moneys held in the Rebate Fund or any other defeasance escrow account)are to be applied
in the following order:
(a) To the payment of the reasonable costs and expenses of the proceedings resulting
in the collection of such moneys and of all the fees, costs, expenses, liabilities and advances
incurred or made by the Trustee, including, but not limited to, its counsel fees and expenses, and
disbursements of the Trustee, and the payment of its reasonable compensation and any advances,
including any amounts remaining unpaid;
(b) To the payment of interest then owing on the Certificates and any Additional
Certificates delivered pursuant to the Indenture, and in case such moneys are to be insufficient to
pay the same in full,then to the payment of interest ratably, without preference or priority of one
Certificate over another or of any installment of interest over any other installment of interest;
(c) To the payment of principal or redemption price(as the case may be)then owing
on the Certificates and any Additional Certificates delivered pursuant to the Indenture,and in case
such moneys are to be insufficient to pay the same in full, then to the payment of principal or
redemption price ratably, without preference or priority of one Certificate and any Additional
Certificate delivered pursuant to the Indenture over another; and
(d) The surplus,if any, is to be paid to the County.
Supplemental Indenture and Amendments Not Requiring Certificate Owners' Consent. The
Trustee may, with the written consent of the County but without the consent of or notice to the Owners,
enter into such Indenture or agreements supplemental hereto, for any one or more or all of the following
purposes: (a)to grant additional powers or rights to the Trustee;(b)to make any amendments necessary or
desirable to obtain or maintain a rating from any Rating Agency rating the Certificates and Additional
Certificates delivered pursuant to the Indenture; (c) to authorize with the execution and delivery of
Additional Certificates for the purposes and under the conditions set forth in the Indenture; (d)in order to
preserve or protect the excludability from gross income for federal income tax purposes of the interest
portion of the Base Rentals allocable to the Certificates and Additional Certificates delivered pursuant to
the Indenture; or (e) for any purpose not inconsistent with the terms of the Indenture or to cure any
ambiguity, or to correct or supplement any provision contained therein which may be defective or
inconsistent with any other provisions contained therein or to make such other amendments to the Indenture
which do not materially adversely affect the interests of the Owners of the Certificates and Additional
Certificates delivered pursuant to the Indenture.
Supplemental Indenture and Amendments Requiring Certificate Owners'Consent.Exclusive of
supplemental Indenture and amendments described above, the written consent of the County and the
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consent of the Owners of a majority in aggregate principal amount of the Certificates then Outstanding,
shall be required for any Indenture supplemental hereto.Notwithstanding the foregoing,without the consent
of the Owners of all the Certificates and Additional Certificates delivered pursuant to the Indenture at the
time Outstanding nothing therein contained is to permit,or be construed as permitting: (a)a change in the
terms of redemption or maturity of the principal amount of or the interest on any Outstanding Certificates
and Additional Certificates delivered pursuant to the Indenture,or a reduction in the principal amount of or
premium payable upon any redemption of any Outstanding Certificates and Additional Certificates
delivered pursuant to the Indenture or the rate of interest thereon;(b)the deprivation of the Owner of any
Certificates and Additional Certificates delivered pursuant to the Indenture then Outstanding of the lien
created by the Indenture (other than as originally permitted thereby); (c) a privilege or priority of any
Certificate and Additional Certificate delivered pursuant to the Indenture or Certificates and Additional
Certificates delivered pursuant to the Indenture over any other Certificate and Additional Certificate
delivered pursuant to the Indenture or Certificates and Additional Certificates delivered pursuant to the
Indenture(except with respect to the possible subordination of Additional Certificates); or(d)a reduction
in the aggregate principal amount of the Certificates required for consent to such supplemental indenture.
Amendment of the Lease and the Site Lease.The Trustee and the County have the right to amend
the Lease and the Site Lease, without the consent of or notice to the Owners of the Certificates and
Additional Certificates delivered pursuant to the Indenture, for one or more of the following purposes: (a)
to add covenants of the Trustee or the County or to grant additional powers or rights to the Trustee; (b)to
make any amendments necessary or desirable to obtain or maintain a rating from any Rating Agency of the
Certificates and Additional Certificates delivered pursuant to the Indenture;(c)in order to more precisely
identify the Leased Property,including any substitutions,additions or modifications to the Leased Property
as the case may be, as may be authorized under the Site Lease and the Lease; (d)to make additions to the
Leased Property, amend the schedule of Base Rentals and make all other amendments necessary for the
execution and delivery of Additional Certificates in accordance with the Indenture;(e)in order to preserve
or protect the excludability from gross income for federal income tax purposes of the interest portion of the
Base Rentals allocable to the Certificates and Additional Certificates delivered pursuant to the Indenture;
or(f)for any purpose not inconsistent with the terms of the Indenture or to cure any ambiguity or to correct
or supplement any provision contained therein or in any amendment thereto which may be defective or
inconsistent with any other provision contained therein or herein or in any amendment thereto or to make
such other amendments to the Lease or the Site Lease which, in the reasonable judgment of the County,do
not materially adversely affect the interests of the Owners of the Certificates.
If the Trustee or the County proposes to amend the Lease or the Site Lease in such a way as would
materially adversely affect the interests of the Owners of the Certificates and Additional Certificates
delivered pursuant to the Indenture,the Trustee is to notify the Owners of the Certificates of the proposed
amendment and may consent thereto only with the consent of the Owners of a majority in aggregate
principal amount of the Outstanding Certificates;provided,that the Trustee is not, without the unanimous
consent of the Owners of all Outstanding Certificates, to consent to any amendment which would (a)
decrease the amounts payable in respect of the Lease, (b) change the Base Rentals Payment Dates, or(c)
change any of the prepayment provisions of the Lease.
Defeasance and Discharge. When the principal or redemption price(as the case may be) of, and
interest on,all the Certificates and Additional Certificates executed and delivered under the Indenture have
been paid or provision has been made for payment of the same (or, in the case of redemption of the
Certificates and Additional Certificates delivered pursuant to the Indenture pursuant to the extraordinary
mandatory redemption provisions of the Indenture, if full or partial payment of the Certificates and
Additional Certificates delivered pursuant to the Indenture and interest thereon is made as provided in the
extraordinary mandatory redemption provisions of the Indenture), and all other sums payable thereunder
relating to the Certificates and Additional Certificates delivered pursuant to the Indenture,then the right,
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title and interest of the Trustee in and to the Trust Estate and all covenants,agreements and other obligations
of the Trustee to the Owners is to thereupon cease, terminate and become void and be discharged and
satisfied. In such event,the Trustee is to(a)release the Site Lease and transfer and convey the Trustee's
leasehold interest in the Leased Property to the County as provided by the Lease,(b)release the Lease and
the Indenture, (c)execute such documents to evidence such releases as may be reasonably required by the
County, and (d) turn over to the County all balances then held by the Trustee in the Funds or Accounts
under the Indenture except for amounts held in the Rebate Fund or in any defeasance escrow accounts. If
payment or provision therefor is made with respect to less than all of the Certificates and Additional
Certificates delivered pursuant to the Indenture, the particular Certificates and Additional Certificates
delivered pursuant to the Indenture (or portion thereof) for which provision for payment is to have been
considered made are to be selected by the County.
Provision for the payment of all or a portion of the Certificates and Additional Certificates delivered
pursuant to the Indenture is to be deemed to have been made when the Trustee holds in the Base Rentals
Fund, or there is on deposit in a separate escrow account or trust account held by a trust bank or escrow
agent, either moneys in an amount which are sufficient, and/or Federal Securities,the principal of and the
interest on which when due, and without any reinvestment thereof, will provide moneys which, together
with the moneys, if any,concurrently deposited in trust,will be sufficient to pay when due the principal of,
premium, if any, and interest due and to become due on said Certificates and Additional Certificates
delivered pursuant to the Indenture on and prior to the redemption date or maturity date thereof,as the case
may be. Prior to any discharge of the Indenture or the defeasance of any Certificates and Additional
Certificates delivered pursuant to the Indenture pursuant to the Indenture becoming effective, there is to
have been delivered to the Trustee a report of an independent firm of nationally recognized certified public
accountants verifying the sufficiency of the escrow established to pay the applicable Certificates and
Additional Certificates delivered pursuant to the Indenture in full on the maturity or redemption date
thereof.
Neither the Federal Securities nor the moneys deposited in the Base Rentals Fund or separate
escrow account or trust account pursuant to the Indenture are to be withdrawn or used for any purpose other
than, and are to be segregated and held in trust for,the payment of the principal of, premium, if any, and
interest on the Certificates and Additional Certificates delivered pursuant to the Indenture or portions
thereof; provided, however, that other Federal Securities and moneys may be substituted for the Federal
Securities and moneys so deposited prior to their use for such purpose.
Whenever moneys or Federal Securities are to be deposited with the Trustee or a separate escrow
agent for the payment or redemption of any Certificates and Additional Certificates delivered pursuant to
the Indenture more than 45 days prior to the date that such Certificates and Additional Certificates delivered
pursuant to the Indenture are to mature or be redeemed, the Trustee is to mail a notice stating that such
moneys or Federal Securities have been deposited and identifying the Certificates and Additional
Certificates delivered pursuant to the Indenture for the payment of which such moneys or Federal Securities
are being held,to all Owners of Certificates and Additional Certificates delivered pursuant to the Indenture
for the payment of which such moneys or Federal Securities are being held, or if such Certificates and
Additional Certificates delivered pursuant to the Indenture are registered in the name of the Depository,
such notice may be sent, in the alternative, by electronic means in accordance with the regulations of the
Depository.
To accomplish defeasance of all of the Certificates under the Indenture,there will be delivered to
the Trustee (a) a report of an independent firm of nationally recognized certified public accountants
verifying the sufficiency of the escrow established to pay the Certificates in full on the maturity or
redemption date, (b) an escrow deposit agreement, and (c) a certificate of discharge of the Trustee with
respect to the Certificates.
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At such time as any Certificate is deemed paid as provided above, such Certificate will no longer
be secured by or entitled to the benefits of the Indenture,the Lease,or the Site Lease,except for the purpose
of exchange and transfer and any payment from such cash or Federal Securities deposited with the Trustee.
SECURITY AND SOURCES OF PAYMENT
General
Each Certificate evidences a proportionate interest in the right to receive certain designated
Revenues, including Base Rentals, under and as defined in the Lease and the Indenture. Under the Site
Lease,the Leased Property has been leased by the County to the Trustee, and under the Lease,the Leased
Property has been leased by the Trustee back to the County and the County has agreed to pay directly to
the Trustee, Base Rentals in consideration of the County's right to possess and use the Leased Property.
Certain Revenues,including Base Rentals,are required under the Indenture to be distributed by the Trustee
for the payment of the Certificates and interest thereon.
The Leased Property
As stated in the Lease, the Leased Property is comprised of the following property located in the
Town: (a) the "Health and Human Services Building Property" consisting of the Health and Human
Services Building(approximately 14,000 square feet), located at 551 Broadway Street, which is presently
used for public health and human service functions,together with approximately 0.72 acres of land under
and adjacent to the Health and Human Services Building and 30 surface parking spaces serving the Health
and Human Services Building; and (b) the "Eagle County Building Property" consisting of the Eagle
County Building (approximately 27,494 square feet), located at 500 Broadway Street, which is presently
used as the main County administrative building with a large auditorium for the Board meetings and other
public meetings, and which also houses the offices for County Clerk and Recorder, County Treasurer and
Public Trustee,and County Assessor,the community development,planning,and engineering departments,
and all internal service departments of the County,together with approximately 2.165 acres of land under
and adjacent to the Eagle County Building and 55 surface parking spaces serving the Eagle County
Building. See "SECURITY AND SOURCES OF PAYMENT—The Leased Property" for more
information.
The Health and Human Services Building has an insured value of$5,819,311 and was constructed
in 1932 and underwent a significant remodel in 1998. The Eagle County Building has an insured value of
$14,492,254 and was constructed in 2000. Members of the public have the ability to access the Leased
Property.
The approximately 2.9-acre area on which the Leased Property is located is currently zoned"Public
Area" under the Eagle Municipal Code. A public area district is intended to provide for any use owned
and/or operated by a public entity. See"CERTAIN RISK FACTORS—Factors that Could Impact Value
of Property if Lease is Terminated"and"—Zoning and other Use Restrictions—."
The Leased Property is required to be insured as described in Section 8.05 of the form of the Lease
included in"APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE,AND THE INDENTURE,"
and the insurance proceeds are required to be applied by the Trustee as described therein.
Upon the terms and conditions set forth in the Lease,the County is to be entitled to substitute any
improved or unimproved real estate in place of the Leased Property. See Section 8.08 of the form of the
Lease included in "APPENDIX B—FORMS OF THE SITE LEASE, THE LEASE, AND THE
INDENTURE."
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Sources of Available Revenue to Pay Base Rentals
Although no particular funds or sources of revenue are pledged to make payments under the Lease,
the County currently intends to budget, appropriate, and pay the Base Rentals (and Additional Rentals, if
any) allocable to the Certificates from its ECO Trails Fund, Capital Improvements Fund and, if needed,
from the General Fund.Notwithstanding the foregoing, such Base Rentals and Additional Rentals may be
budgeted,appropriated,and paid from any of the County's available funds in the future.
See "COUNTY FINANCIAL INFORMATION" for more information regarding the County's
funds and for information regarding ad valorem property tax revenues and sales tax revenues of the County,
which are the sources of funding of the Capital Improvements Fund and ECO Trails Fund (which is not
funded from ad valorem property tax revenues), and the trail impact fees that the County is considering
imposing,which would comprise a source of funding for the ECO Trails Fund. See also"APPENDIX A—
AUDITED FINANCIAL STATEMENTS FOR THE COUNTY FOR THE FISCAL YEAR ENDED
DECEMBER 31,2020."
Rights of County to Terminate the Lease Annually
The Lease is subject to annual appropriation,non-renewal and,in turn,termination by the County.
The execution and delivery of the Certificates does not directly or contingently obligate the County to make
any payments beyond those appropriated for the County's then current Fiscal Year. As more fully described
under the caption"CERTAIN RISK FACTORS,"the Lease is subject to renewal on an annual basis at the
option of the County. The Lease Term and the schedule of payments of Base Rentals are designed to
produce moneys sufficient to pay the Certificates and interest thereon when due(if the County elects not to
terminate the Lease prior to the end of the Lease Term).
The Certificates will not constitute a mandatory charge or requirement of the County in any ensuing
Fiscal Year beyond the current Fiscal Year and will not constitute or give rise to a general obligation or
other indebtedness of the County or a multiple fiscal year direct or indirect debt or other financial obligation
whatsoever of the County,within the meaning of any constitutional or statutory debt provision or limitation.
No provision of the Certificates is to be construed or interpreted as creating a delegation of governmental
powers nor as a donation by or a lending of the credit of the County within the meaning of Sections 1 or 2
of Article XI of the Colorado Constitution. The execution and delivery of the Certificates will not directly
or indirectly obligate the County to renew the Lease from Fiscal Year to Fiscal Year or to make any
payments beyond those appropriated for the County's then current Fiscal Year. Base Rentals and
Additional Rentals may be paid from any lawfully available County monies appropriated for that purpose.
See"COUNTY FINANCIAL INFORMATION."
The County is not obligated to pay Base Rentals or Additional Rentals under the Lease unless funds
are budgeted and appropriated for such rentals by the County each year. If in any year the County fails to
budget and appropriate such funds,the County will be deemed to have terminated its obligations under the
Lease. See"CERTAIN RISK FACTORS."
Remedies in Event of Termination of the Lease
In the event of termination of the County's obligations under the Lease upon the occurrence of an
Event of Nonappropriation or an Event of Lease Default,the County is required to vacate and surrender the
Leased Property by March 1 of the Renewal Term in respect of which an Event of Nonappropriation has
occurred. In the event that during the Initial Term or any Renewal Term, any Additional Rentals 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 90 days subsequent to
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the date upon which such Additional Rentals are due, an Event of Nonappropriation is deemed to have
occurred, upon notice by the Trustee to the County to such effect (subject to waiver by the Trustee as
provided in the Lease).
If an Event of Lease Default shall have occurred and remain uncured,the Trustee may take any of
the following actions: (a)terminate the Lease Term and give notice to the County to vacate and surrender
possession of the Leased Property which vacation and surrender the County agrees under the Lease to
complete within 90 days from the date of such notice; (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
Leased Property; (c) recover from the County(i)the portion of Base Rentals and Additional Rentals, for
which a specific Appropriation has been effected by the County for such purpose,which would otherwise
have been payable under the Lease, during any period in which the County 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 County for such purpose,which would otherwise have been payable
by the County under the Lease during the remainder,after the County vacates and surrenders possession of
the Leased Property,of the Fiscal Year in which such Event of Lease Default occurs; or(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, the Lease and the Indenture. In the event the County does not vacate and
surrender possession on the termination date,the"holdover tenant"provisions of the Lease will apply.
The Trustee is also be entitled, upon any Event of Lease Default, to any moneys in any funds or
accounts created under the Indenture(except the Rebate Fund or any defeasance escrow accounts).
The Lease places certain limitations on the availability of money damages against the County as a
remedy. For example,the Lease provides that a judgment requiring a payment of money may be entered
against the County by reason of an Event of Nonappropriation only to the extent the County fails to vacate
the Leased Property as required by the Lease and only as to certain liabilities as described in the Lease.
USE OF PROCEEDS AND BASE RENTALS SCHEDULE
The Project
Proceeds from the sale of the Certificates will be used to finance a portion of the costs of
constructing, improving and equipping of approximately 12 miles of the Eagle Valley Trail,including the
acquisition of real property in connection with therewith(as previously defined,the"Project"). In addition,
a portion of proceeds of the Certificates will be used to pay the costs of executing and delivering the
Certificates. The entire Eagle Valley Trail is a regional public trail system for biking and pedestrian uses
from Vail Pass to Glenwood Canyon. From 1998 to 2019, 51 of the 63 total planned trail miles were
constructed. The final 12 miles of the Eagle Valley Trail (i.e., the Project) will be constructed in four
segments: Eagle-Vail to/from Dowd Junction, Dowd Junction to/from Minturn, Horn Ranch to/from
Edwards,and Dotsero to/from the Gypsum Duck Ponds. ECO Trails,which oversees the construction and
maintenance of the Eagle Valley Trail,was formed in 1996 and is part of the County government.
The total cost of the Project is estimated at approximately $26.3 million. The County plans to
finance such costs with the net proceeds of the Certificates and with other available funds of the County.
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Estimated Sources and Uses of Funds. The estimated uses of the proceeds of the Certificates are
as follows:
SOURCES:
Proceeds of the Certificates
[Net] Original Issue[Premium/Discount]
Total
USES:
Deposit to County for Project Costs
Deposit into the Costs of Execution and Delivery Fund,
including underwriter's discount '
Total
See"MISCELLANEOUS—Underwriting."
Source:The Underwriter
[Remainder of Page Intentionally Left Blank]
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Base Rentals Schedule
The following table sets forth the schedule of Base Rentals due pursuant to the Lease in each year,
including the Principal Component and the Interest Component.
The County has other obligations (including prior lease-purchase agreements), which are also
payable from legally available revenues.The base rentals owed under the prior lease-purchase agreements
are set forth in"DEBT STRUCTURE."
TABLE I
Base Rental Schedule Certificates 1,z,*
Total Fiscal Year
Year Principal Component Interest Component Base Rentals
2022 $ 625,000
2023 645,000
2024 675,000
2025 700,000
2026 730,000
2027 755,000
2028 790,000
2029 820,000
2030 850,000
2031 885,000
2032 920,000
2033 960,000
2034 995,000
2035 1,035,000
2036 1,075,000
2037 1,120,000
2038 1,165,000
2039 1,210,000
2040 1,260,000
2041 1,310,000
Total $18,525,000
*Preliminary;subject to change.
'Totals may not add due to rounding.Assumes no optional redemption or extraordinary mandatory redemption prior to maturity.
2 The Base Rentals are due semi-annually on May 15 and November 15(i.e.,15 days prior to the payment dates for the Certificates)
of each year that the Lease remains in effect. Amounts available in the Base Rentals Fund will be credited against Base Rentals
amounts due as provided in the Lease. The Trustee will use the Base Rentals to pay the principal and interest due on the Certificates
on June 1(interest)and December 1(principal and interest)of each year.
Source: The Underwriter.
THE COUNTY
Generally
The County is a political subdivision of the State of Colorado, duly organized and existing under
the laws and constitution of the State of Colorado.
The County is located approximately 100 miles west of Denver. The County encompasses
approximately 1,694 square miles and spans from the summit of Vail Pass west to Glenwood Canyon,and
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from the Town of Basalt north to the community of McCoy. Approximately 80%of the land is publicly
owned and is controlled primarily by the U.S. Forest Service and the U.S. Bureau of Land Management.
Interstate Highway 70 serves as the principal corridor through the County.
The eastern portions of the County have experienced considerable growth and change during the
past 50 years and include the Vail and Beaver Creek Ski Resorts, as well as the communities of Avon,
Eagle-Vail, Singletree, Homestead, Edwards, Cordillera, Eagle, Gypsum, Vail, Minturn, and Arrowhead.
The western and southern portions of the County have changed from agricultural and ranching-based
economies to real estate development, tourism and recreation-based economies. The northern portion of
the County is still primarily rural in nature. Skiing and tourism comprise the largest components of the
local economic base.
According to the State Demography Office, the County had an estimated full-time population of
55,000 in 2019. However, due to the resort communities within the County and its status as a tourism
destination,the peak seasonal population may be higher.
History
The State Legislature in 1883 approved a division of Summit County to allow the formation of
Eagle County. The County's modern era began in the late 1800s as the mines around Red Cliff and Gilman
fueled an economy that supported several small settlements, many of which withered with the decline of
the mining industry in ensuing years. While Red Cliff, Minturn, Eagle, and Gypsum remain from the
County's early years, Taylor City, Mitchell, and Holy Cross City have disappeared from the map or have
become ghost towns. Other industries, such as ranching and lumbering, represented the bulk of the
County's economy until the development of Vail Resort in the early 1960s.As a result,a significant portion
of the County's economy is now based on tourism and on commercial and residential real estate
development.
Economy
In winter,Vail ski area,with its adjoining ski area and sister resort Beaver Creek,has become one
of the most popular alpine resorts in the world. In January 2015, Vail and Beaver Creek hosted the World
Alpine Ski Championships for the third time, having hosted this event previously in 1989 and 1999. In
addition,each December,Beaver Creek hosts three ski races on the men's world cup circuit(known as the
Beaver Creek Xfinity Birds of Prey Audi FIS Ski World Cup Super G, Downhill,and Giant Slalom races)
and each February/March,Vail hosts the Burton U.S.Open Snowboarding Championships(which are under
contract to be hosted by Vail through 2021, although the 2021 event was canceled due to the COVID-19
pandemic). See"APPENDIX D—ECONOMIC AND DEMOGRAPHIC INFORMATION."
The County's non-winter outdoor recreational opportunities have historically attracted visitors
from all parts of the world. Non-winter activities have grown in recent years and have provided a larger
contribution to the County's economy.In 2016,Vail expanded its on-mountain summer activities to include
additional zip lines,rope courses and an alpine slide.Additional summer economic contributions have been
attributed to the increased popularity of the 16 golf courses located in the County, including premier golf
courses designed by Arnold Palmer, Greg Norman, Robert Trent Jones, Jr. and Tom Fazio. Other non-
winter activities include road and mountain biking, rafting, fishing and various entertainment events. Big
game hunting for deer and elk(the Flat Tops outside Dotsero is home to North America's largest elk herd)
also makes significant contributions to the local economy each year. Tennis, hiking, camping, and ATV
tours are also important components of the County's summer economy.
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County Government
Board of County Commissioners. The Board exercises the constitutional and statutory powers
granted to the County. The County is divided into three districts of relatively equal population as required
by State statute. The members of the Board are elected from each district by the voters of the entire County
to serve staggered four year terms. The boundaries of the County's three districts were redrawn and adopted
by the Board in 1991, 2001,and again in 2011.
Statutes require the Board to hold regular meetings at least once a month and at such other times
as, in the opinion of the Board, the public interest may require. Currently, the Board meets twice every
week on Mondays and Thursdays. The names of the present Board members and their respective terms on
the Board are set forth below. Each Board member is a full-time County Commissioner.
Name Term Expires
Matt Scherr,District 1, Chair 2024
Kathy Chandler-Henry,District 2 2024
Jeanne McQueeney, District 3 2022
Board Powers. The Board acts by resolution, and in accordance with Section 30-11-107, C.R.S.,
has the following powers:to make such orders concerning the property belonging to the County as it deems
expedient;to examine and settle all accounts of receipts and expenses of the County; to build and keep in
repair County buildings and to cause the same to be insured;to apportion and order the levying of taxes as
provided by law;and to contract loans to erect necessary public buildings and to make or repair public roads
or bridges,and to have the care of the County's property and the management of the business and concerns
of the County in all cases where no other provisions are made by law.
Administration. The Board has employed the following key employees to assist them in
administering the daily affairs of the County.
Jeff Shroll, County Manager. Mr. Shroll was appointed by the Board in May of 2018. Prior to
joining the County, he had served as the Town Manager in Gypsum, Colorado since 1994. The County
Manager is appointed by the Board to oversee all departments within the County and provide operational
direction. He is an International City Management Association (ICMA)-trained public manager. Mr.
Shroll has a degree in Political Science from Western State University and an MPA from the University of
Colorado at Denver.
Bryan Treu, County Attorney. Mr. Treu was appointed by the Board as the County Attorney
effective September 1,2005. He has previously served as Assistant County Attorney since 2001 and prior
to that he was in private practice. The Eagle County Attorney is appointed by the Board to provide legal
services to the Board as well as elected County officials,County departments,and boards. Mr.Treu holds
an undergraduate degree, magna cum laude, from Pepperdine University and a law degree from the
University of Colorado.
Jill Klosterman, Chief Financial Officer. Ms.Klosterman was promoted to Chief Financial Officer
in February 2021 after serving as the County's Finance Director from 2017 to 2021 and the County's
Housing Director from 2010 to 2017. She has held a variety of real estate, lending, and finance positions
over the past 25 years. Ms. Klosterman has an MBA from the University of Wisconsin and a bachelor's
degree in Accounting from Marquette University.
ECO Trails. The following key employees assist in managing the Eagle Valley Trail and ECO
Trails program.
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Kevin Sharkey, Trails Program Manager. Mr. Sharkey joined the County in February 2017. He is
in charge of completing the Eagle Valley Trail, which is a 10 foot wide paved trail for non-motorized
recreation and transportation in the Eagle River Valley. He also oversees the operations and maintenance
of the existing trail segments.Mr. Sharkey previously served as an engineer for the Town of Eagle for 13
years. Mr. Sharkey is a licensed engineer in the State of Colorado, and holds a B.S. in Geotechnical
Engineering from the Colorado School of Mines, and a MS in Engineering Systems from the Colorado
School of Mines.
Tanya Allen, Regional Transportation Director.Ms.Allen joined the County in November of 2019.
She oversees the County's transit and multimodal transportation programs, including Eagle County
Regional Transportation Authority (ECO Transit) bus service and the ECO Trails program. Ms. Allen
previously served as Transportation Manager for the City of Glenwood Springs and as a Foreign Service
Officer with the U.S. Department of State. Ms. Allen holds a bachelor's degree in Political Science from
Williams College and a Master of Community Planning from the University of Maryland at College Park.
County Employees, Employee Relations. The County currently employs approximately 469
full-time employees. The County considers its employee relations to be very good. The County does not
recognize any unions as bargaining agents for its employees.
Pension Matters
The County provides a retirement plan for County employees and officials through the Colorado
Retirement Association ("CRA"), which was previously known as the Colorado County Officials and
Employees Retirement Association. The plan is a defined contribution plan,also known as a 401(a)plan.
The total retirement expense to the County for 2020 was$2,072,099. All full-time employees are required
to participate in the retirement program as a condition of employment,beginning with the first pay period.
The County contributes a 3-6% match of an employee's compensation and 12% of elected officials'
compensation, excluding overtime, based on the amount the employee chooses to contribute. Employees
may self-direct their contributions into certain investments as allowed by CRA. Vesting occurs at 20%per
year starting with the employee's first year.As of December 31,2020,there were no unfunded liabilities.
The County offers its employees a 457 deferred compensation plan with CRA, in addition to the
defined contribution plan. Employee contributions were limited by the IRS to$13,951 for the year ended
December 31, 2020. The County matches contributions amounting to 2%of the employee's contributions
to the 457 plan. During 2020,employee contributions and County matching contributions totaled$529,030
and$13,951,respectively.
Insurance
On January 1,2021,the County secured property and casualty coverage through its broker Arthur
J.Gallagher Risk Management Services,Inc.,and with insurance carriers approved to operate in Colorado
by the State Insurance Commissioner. At the time of binding coverage, all insurance carriers received an
A+ or A++ from A.M. Best's Credit RatingTM. These ratings are an independent opinion of an insurer's
financial strength and ability to meet its ongoing insurance policy and contract obligations. It is not a
warranty of a company's financial strength and ability to meet its obligations to policyholders. Best's Credit
RatingsTM are under continuous review and subject to change and/or affirmation. See Note IV.B.2 in the
audited financial statements attached hereto as APPENDIX A for information about the County's 2020
property and casualty coverage.
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The County also carries liability insurance provided by AIG in connection with its operation of the
County Airport. Such insurance generally provides coverage to a maximum of $100,000,000 per
occurrence subject to the exceptions stated in the insurance policy.
Intergovernmental Agreements
The County has entered into approximately 50 intergovernmental agreements with the State and
other political subdivisions to (a) provide limited services to municipal corporations in the County and
(b)pursue cooperative opportunities among the County, the State, and/or other political subdivisions.
These agreements, many of which automatically renew, cover several basic types of services, including a
County bus system, building inspection, dog control, law enforcement and fire protection services, road
maintenance, and other miscellaneous services. The County enjoys some economies of scale by virtue of
these agreements. The County believes that these agreements are beneficial to the operations of the County.
The County's financial obligations pursuant to these agreements are paid from current revenues in the
General Fund. The County does not expect any significant capital demands to be made on the County as a
result of these agreements.
Capital Improvement Plan
The County annually budgets and expends funds on improvement and construction of County
facilities, acquisition of equipment, and capital improvements for such things as bridge construction,
recreation and transportation facilities,affordable housing and childcare projects,and County facilities.
The Capital Improvements Fund, which pays for the majority of County capital projects, has
averaged approximately$8.6 million in revenue over the past 5 years(2016-2020)and approximately$8.1
million in expenditures per year during the same time frame. The fund had a 2020 audited fund balance of
$11,725,929. Each year, the Board considers its current and long term needs in budgeting for this fund.
During the budget process,the County also prepares a 3-year capital plan that includes the maintenance of
all existing capital projects, including buildings, vehicles, public safety, and technology, along with
investments that align with the Board's strategic plan, which includes investments in affordable housing,
transportation,and sustainability.
The County also maintains the ECO Trails Fund which funds community enhancements and
maintenance of the Eagle Valley Trail system in the County. This fund has averaged approximately$1.9
million in revenue over the past 5 years (2016-2020)and approximately $1.9 million in expenditures per
year during the same time frame. The fund had a 2020 audited fund balance of$10,570,470. Each year,
the Board considers its current and long term needs in budgeting for this fund.For instance,the County has
budgeted to save money in the ECO Trails Fund over the past two fiscal years in order to finance a portion
of the additional construction of the Eagle Valley Trail system.
The County currently intends to budget, appropriate, and pay the Base Rentals (and Additional
Rentals, if any) allocable to the Certificates from legally available funds in the ECO Trails Fund and the
Capital Improvements Fund. Notwithstanding the foregoing,Base Rentals and Additional Rentals may be
budgeted, appropriated, and paid from any of the County's available funds in the future, including legally
available funds in the General Fund.See"COUNTY FINANCIAL INFORMATION"for more information
regarding the County's funds and for information regarding ad valorem property tax revenues and sales tax
revenues of the County,which are the sources of funding of the Capital Improvements Fund and ECO Trails
Fund(which is not funded from ad valorem property tax revenues),and the trail impact fees that the County
is considering imposing, which would comprise a source of funding for the ECO Trails Fund. See also
"APPENDIX A—AUDITED FINANCIAL STATEMENTS FOR THE COUNTY FOR THE FISCAL
YEAR ENDED DECEMBER 31,2020."
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Services Provided by the County
The County provides traditional county services, including assessment and property tax
administration; recording of vital documents and automobile registration; court facilities; jail
administration;maintenance and construction of County roads;police administration for the unincorporated
areas and the incorporated areas within the County without police departments; various social services
including welfare and public health programs;general administrative,zoning;building inspection,and land
use planning; the maintenance of a County airport; affordable housing; a solid waste landfill disposal
facility; fairgrounds;public transit;and environmental health protection.
Services Available to County Residents
In addition to the services provided by the County to its residents,there are numerous other services
available to County residents that are provided by other entities. Depending on a resident's location,these
services may include water, sewage, and solid waste treatment, telephone, gas and electric power, police
and fire protection,and transportation.
Health Care Services.Residents in the community are served by two hospital systems—one based
in Vail and one based in Glenwood Springs,Colorado(located in adjacent Garfield County).
Vail Health is a nonprofit community health care system, with nearly 300 physicians in 12
locations,including a 56-bed hospital with 24/7 emergency room.The hospital is a Level III Trauma Center
with a nearby helipad for necessary medical transports. Vail Health provides a wide array of services and
access points including Beaver Creek Medical Center,urgent care clinics in Avon and Gypsum, Edwards
medical campus,Eagle Healthcare Center,and a multispecialty clinic in Frisco(not located in the County).
Howard Head Sports Medicine offers physical therapy services at 10 locations and works closely with Vail
Health's orthopedic partners at The Steadman Clinic and Vail-Summit Orthopedics. In addition, Vail
Health's Shaw Cancer Center and Sonnenalp Breast Center are the region's only fully accredited cancer
treatment center and comprehensive breast center.
Valley View is a nonprofit community hospital treating patients regionally and from around the
world. Valley View locations include 78-bed Valley View Hospital in Glenwood Springs (not located in
the County)and clinic locations in Basalt,Eagle, Silt(not located in the County), Carbondale(not located
in the County)and Grand Junction(not located in the County).Valley View Hospital is also designated as
a Level III Trauma Center. Other services provided include acute care, critical care, ER, endoscopy, the
Family Birthplace,hospitalists, imaging,psychiatry,rehabilitation services,and surgery.
Emergency ambulance service is provided to the County by Eagle County Paramedic Services.
Mental health care is provided to the entire County by Mind Springs Health(the largest provider
of counseling,therapy and other mental health services on Colorado's western slope, offering a full-range
of mental health and addiction services and the western slope's only psychiatric hospital, West Springs
Hospital in Grand Junction) and by private practitioners. In addition, on October 1, 2018, Hope Center
Eagle River Valley opened in the County; it provides free crisis care in homes,schools,and other places of
need within the County. In April 2019, Vail Health announced that it would commit over$60,000,000 in
funding over the next ten years to collaborate with the County and other community groups to create a new
nonprofit to build needed facilities,improve access to providers,and lower barriers to accessing behavioral
health care across the Vail valley. In connection with the funding commitment, Vail Health started Eagle
Valley Behavioral Health as an outreach to manage a plan for funding,accountability and fundraising while
leading the community collaboration to ensure access to superior behavioral health services. Vail Health
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has purchased land in Edwards and is working with Eagle Valley Behavioral Health and the County to
design a comprehensive behavioral health facility.
Schools. Residents in the County are served by three separate public school districts. The largest
school district in the County is Eagle County RE50J("Eagle County Schools"),which serves all residents
in the County not located in the following two school districts. Residents in Basalt-El Jebel are served by
the Roaring Fork RE-1 School District in Garfield County and residents in the Sheephorn area in the
extreme northeast corner of the County are served by the West Grand JT-1 School District.
As of the 2020-2021 school year, Eagle County Schools had approximately 6,699 students in 8
elementary schools (grades K-5), 2 elementary/middles schools (grades K-8), 2 elementary/middle/high
schools(grades K-12),3 middle schools(grades 6-8),and 5 high schools(grades 9-12). The Basalt/El Jebel
area of the County is served by an elementary, middle and high school; all of which are located in Basalt.
The Sheephorn area in the extreme northeast corner of the County is served by an elementary, middle and
high school;all of which are located in Kremmling, Colorado(in Grand County).
Higher education and vocational education are provided by the Vail Valley at Edwards campus of
Colorado Mountain College,located in Edwards. Since 2015,Colorado Mountain College has also offered
bachelor's degrees.
COUNTY FINANCIAL INFORMATION
The following presents general financial information concerning the County. The County's
principal sources of revenue for operations are sales and ad valorem taxation. The County currently
anticipates that amounts to pay Base Rentals and Additional Rentals, if budgeted and appropriated by the
Board,will be budgeted and appropriated as a part of the County's annual operating budget. However,the
Certificates are not general obligations of the County and neither ad valorem taxes nor any other
taxes collected by the County are being pledged in whole or in part to pay the Certificates.
Although the County is not obligated to pay Base Rentals and Additional Rentals from any
particular revenue source,it is the current expectation of the Board that Base Rentals and Additional Rentals
will be paid(to the extent funds are appropriated therefor each year)from revenues in the ECO Trails Fund
and the Capital Improvements Fund and,if needed,from the General Fund.Specific information regarding
the General Fund, the Capital Improvements Fund and the ECO Trails Fund is set forth below herein. In
addition, information regarding ad valorem property tax revenues and sales tax revenues of the County,
which comprise the source of funding for these funds, and the trail impact fees that the County is
considering imposing, which would comprise a source of funding for the ECO Trails Fund, is set forth
below.
Assessed Valuation and Property Taxes
The Board has the power, subject to constitutional and statutory guidelines, to certify a levy for
collection of ad valorem taxes against all taxable property within the County. Property taxes are uniformly
levied against the assessed valuation of all taxable property within the County. The property subject to
taxation, the assessment of such property, and the property tax procedure and collections are discussed
below.
Property Subject to Taxation. Both real and personal property located within the boundaries of
the County, unless exempt, are subject to taxation by the County. Exempt property generally includes
property of the United States of America; property of the State and its political subdivisions; public
libraries; public school property; charitable property; religious property; irrigation ditches, canals and
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flumes; household furnishings; personal effects; intangible personal property; inventories of merchandise
and materials and supplies which are held for consumption by a business or are held primarily for sale;
livestock;agricultural and livestock products;agricultural equipment which is used on the farm or ranch in
the production of agricultural products;and non-profit cemeteries.
Property Tax Reduction for Senior Citizens and Disabled Veterans. On November 7, 2000 and
November 7, 2006, respectively, the electors of the State of Colorado approved Referendum A and
Referendum E,constitutional amendments granting a property tax reduction to qualified senior citizens and
qualified disabled veterans. Generally,the reduction(a)reduces property taxes for qualified senior citizens
and qualified disabled veterans by exempting 50% of the first $200,000 of actual value of residential
property from property taxation;(b)requires that the State reimburse all local governments for any decrease
in property tax revenue resulting from the reduction; and (c) excludes the State reimbursement to local
governments from the revenue and spending limits established under Article X, Section 20 of the State
Constitution.
Assessment of Property. All taxable property is listed, appraised and valued for assessment as of
January 1 of each year by the county assessor. The"actual"value, with certain exceptions, is determined
by the county assessor annually based on a biennially recalculated"level of value"set on January 1 of each
odd-numbered year. The "level of value" is ascertained for each two-year reassessment period from
manuals and associated data prepared and published by the State property tax administrator for the eighteen-
month period ending on the June 30 immediately prior to the beginning of each two-year reassessment
period. For example,"actual"values for the 2017 levy/2018 collection year as well as the 2018 levy/2019
collection year are based on market data obtained from the period January 1,2015—June 30,2016."Actual"
values for the 2019 levy/2020 collection year as well as the 2020 levy/2021 collection year will be based
on market data obtained from the period January 1, 2017—June 30,2018. The"level of value"calculation
does not change for even-numbered years. The classes of property the "actual" value of which is not
determined by a level of value include oil and gas leaseholds and lands, producing mines and other lands
producing nonmetallic minerals.
Determination of Assessed Value. The assessed value of taxable property (which represents the
value upon which ad valorem property taxes are levied) is determined by multiplying the "actual" value
(determined as described in the immediately preceding paragraph) times an assessment ratio. There are
different assessment ratios for different classes of taxable property(e.g.residential and non-residential).
Residential Property. For levy years 2020 and 2021 (collection years 2021 and 2022),residential
property is assessed at 7.15%of its statutory actual value. Residential assessment rates may be changed by
the Colorado General Assembly and by the eligible electors at a State-wide election, and any increases
would require voter approval pursuant to TABOR. From 1982 to 2020, a provision in the Colorado
Constitution referred to as the "Gallagher Amendment," required the Colorado General Assembly to
calculate and potentially adjust the residential assessment rate every two years.
The residential assessment rate had remained at 7.96%since the 2003 levy year until 2017. During
the 2017 legislative session, the Colorado General Assembly approved a change to the residential
assessment rate to 7.20% for levy years commencing on and after January 1, 2017, and during the 2019
legislative session,the Colorado General Assembly approved a change to the residential assessment rate to
7.15%for levy years commencing on and after January 1,2019.
On November 3, 2020, Colorado voters approved an amendment to the Colorado Constitution
which repealed the Gallagher Amendment. Accordingly, the Colorado General Assembly is no longer
required to recalculate and potentially adjust the residential assessment rate every two years.
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On April 30,2021,the Colorado Ballot Title Setting Board approved the form of"Initiative 2021-
2022#27—Property Tax Assessment Rate Reduction and Voter-Approved Revenue Change"("Initiative
27"), which could potentially be presented to voters in a State-wide election on November 2,
2021.Beginning on January 1,2022,Initiative 27 would reduce the residential assessment rate from 7.15%
to 6.5%. Initiative 27 is being circulated for signatures and must be submitted to the Secretary of State by
August 2, 2021 with sufficient signatures to qualify for inclusion on the November 2021 ballot.
Senate Bill 21-293 ("SB 21-293"), which was signed by the Governor on June 23, 2021, among
other things,designates multi-family residential real property as a new subclass of residential real property
and temporarily reduces the residential assessment rates. SB 21-293 restructured the law so that if the
Initiative 27 is approved by voters at the November 2, 2021 State-wide election, its provisions relating to
the residential assessment rate would only apply to multi-family residential real property and, as a result,
the assessment rate for multi-family residential real property will be reduced from 7.15% to 6.5%. If
Initiative 27 is not approved, then pursuant to SB 21-293,the assessment rate for multi-family residential
property will be temporarily reduced from 7.15%to 6.8%for levy years 2022 and 2023,and then return to
7.15% in levy year 2024. Furthermore, SB 21-293 temporarily reduces the assessment rate for all
residential real property, other than multi-family residential real property, from 7.15%to 6.95% for levy
years 2022 and 2023,and then return to 7.15%in levy year 2024.
Non-Residential Property. For levy years 2020 and 2021 (collection years 2021 and 2022),all non-
residential taxable real and personal property, with certain specified exceptions, is assessed at 29% of its
statutory actual value. Producing oil and gas property is generally assessed at 87.5%of the selling price of
the oil and gas. Non-residential assessment rates may be changed by the General Assembly and by the
eligible electors at a State-wide election, and any increases would require voter approval pursuant to
TABOR.
Initiative 27 seeks to reduce the non-residential assessment rate from 29% to 26.4%, excluding
producing mines and lands or leaseholds producing oil or gas. SB 21-293 classifies agricultural property,
lodging property,and renewable energy production property as new subclasses of non-residential property,
and temporarily reduces certain non-residential assessment rates. SB 21-293 restructures the law so that if
Initiative 27 is approved,the Initiative 27 provisions relating to non-residential assessment rate would only
apply to lodging property. In accordance with SB 21-293, if Initiative 27 is approved by voters at the
November 2,2021,State-wide election,then the assessment rate for lodging property will be reduced from
29%to 26.4%. If Initiative 27 is not approved,then the assessment rate for lodging property will remain
at 29%. SB 21-293 also provides that the assessment rate for agricultural property and renewable energy
production property will be temporarily reduced from 29% to 26.4% for levy years 2022 and 2023, and
then return to 29%in levy year 2024.
Adjustment of County Property Tax Mill Levy Rate. In 2020,the voters of the County approved a
ballot question allowing the County to adjust its property tax mill levy rate in the event of a State imposed
reductions in the ratio of assessed property tax valuations so that the actual tax revenues generated by the
County's mill levies are the same as the revenues that would have been generated had the State not reduced
the assessment ratio. Accordingly, the County may increase its property tax mill levy to offset reduction
of assessment rates as a result of SB 21-293, Initiative 27(if approved)and any future legislative changes
to the assessment rate. .
Protests, Appeals,Abatements and Refunds. Property owners are notified of the valuation of their
land or improvements, or taxable personal property and certain other information related to the amount of
property taxes levied,in accordance with statutory deadlines. Property owners are given the opportunity to
object to increases in the statutory actual value of such property, and may petition for a hearing thereon
before the County Board of Equalization. Beginning in May of each year County assessor hears taxpayers'
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objections to property valuations, and the County Board of Equalization hears assessment appeals. Upon
the conclusion of such hearings, the assessor is required to complete the assessment roll of all taxable
property no later than August 25 each year. The abstract of assessment prepared therefrom is reviewed by
the State property tax administrator. Assessments are also subject to review at various stages by the State
board of equalization,the State board of assessment appeals and the State courts. Therefore,the County's
assessed valuation may be subject to modification as a result of the review of such entities. In the instance
of the erroneous levy of taxes, an abatement or refund must be authorized by the board of county
commissioners;and in no case will an abatement or refund of taxes be made unless a petition for abatement
or refund is filed within two years after January 1 of the year following the year in which the taxes were
levied. Refunded or abated taxes are prorated among all taxing jurisdictions which levied a tax against the
property.
Taxation Procedure. The assessed valuation and statutory"actual"valuation of taxable property
within the County is required to be certified by the County Assessor no later than August 25 of each year.
Such value is subject to recertification by the County Assessor prior to December 10. The Board then
determines a rate of levy which,when levied upon such certified assessed valuation,and together with other
legally available revenues, will raise the amount required annually by the County for its General Fund,
Road and Bridge Fund, Social Services Fund,Capital Improvement Fund, and Casualty Insurance Fund to
defray their expenditures during the ensuing Fiscal Year. In determining the rate of levy,the Board must
take into consideration the limitations on certain increases in property tax revenues as described in "—
Constitutional Amendment Limiting Taxes and Spending" and "—Budget and Appropriation Process"
herein. The Board approves the County's levy no later than December 15.
Upon receipt of the tax levy certification of the County and other taxing entities within the County,
the Board levies against the assessed valuation of all taxable property within the County the applicable
property taxes. Such levies are certified by the Board to the County Assessor,who thereupon delivers the
tax list and warrant to the County Treasurer for the collection of taxes.
Property Tax Collections. Taxes levied in one year are collected in the succeeding year. Taxes
certified in 2020, for example, are being collected in 2021. Taxes are due on January 1 in the year of
collection;however,they may be paid in either one installment(not later than the last day of April)or two
equal installments(not later than the last day of February and June 15)without interest or penalty. Taxes
which are not paid within the prescribed time bear interest at the rate of 1%per month until paid. Unpaid
amounts and the accrued interest thereon become delinquent on June 16 of the collection year. The County
Treasurer collects current and delinquent property taxes, as well as any interest, penalties, and other
requirements and remits the amounts collected on behalf of the County to the County on a monthly basis.
Tax Liens; Tax Sale. All taxes levied on real and personal property,together with any interest and
penalties prescribed by law, as well as other costs of collection, until paid, constitute a perpetual lien on
and against the taxed property. Such lien is on a parity with the liens of other general taxes. It is the County
Treasurer's duty to enforce the collection of delinquent real property taxes by sale of the tax lien on such
realty in December of the collection year and of delinquent personal property taxes by the distraint,seizure
and sale of such property at any time after October 1 of the collection year. There can be no assurance,
however, that the value of taxes, penalty interest and costs due on the property can be recovered by the
County Treasurer.Further,the County Treasurer may set a minimum total amount below which competitive
bids will not be accepted,in which event property for which acceptable bids are not received will be set off
to the County. Taxes on real and personal property may be determined to be uncollectible after a period of
six years from the date of becoming delinquent and canceled by the Board.
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Historical Property Tax Data
Historical information regarding growth of assessed valuation of taxable property in the County is
set forth in the following table:
TABLE II
History of County's Assessed Valuation t
Levy/Collection Assessed
Year Valuation %Change
2016/2017 $3,033,426,740 --
2017/2018 3,233,240,940 2 6.59%
2018/2019 3,245,438,110 0.38
2019/2020 3,536,959,480 2 8.98
2020/2021 3,542,577,310 .16
The assessed valuation reflected in the County's audited financial
statements for year ended December 31, 2020 includes both taxable and
exempt property.The assessed valuation information included in this table
reflects only taxable property.
2 According to the County Assessor,the increase in assessed valuation was
due to levy year being a reappraisal year.
Source: County Assessor's Office.
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•
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The following property tax levies and collections were reported by the County in the levy years
2016-2020 (collection years 2017-2021). The table reflects all property taxes levied and collected by the
County for its various funds.
TABLE III
Historical County Mill Levies and Property Tax Collections
Current Tax Total Tax
Collections as Delinquent Total Collections
Levy/Collection Mill Current a%of Taxes Tax Taxes as a %of
Year Levy t Taxes Levied Collections Levied Collected Collected Taxes Levied
2016/2017 8.499 $25,781,094 $24,941,294 96.74% $ 7,668 $24,948,962 96.77%
2017/2018 8.499 27,479,315 26,321,844 95.79 2,087 26,323,931 95.80
2018/2019 8.499 27,582,978 26,360,158 95.57 30,778 26,390,936 95.68
2019/2020 8.499 30,060,618 28,651,671 95.31 1,738 28,653,409 95.32
2020/2021 2 8.499 30,108,365 27,590,247 91.64 -- 27,590,247 91.64
Comprised of 5.285 mills for the General Fund, 1.359 mills for the Road and Bridge Fund,0.240 mills for the Public Welfare
Fund,0.061 mills for the Capital Improvements Fund,0.054 mills for the Insurance Fund,and 1.500 mills for the Open Space Fund
for levy years 2016 through 2018. Comprised of 4.590 mills for the General Fund, 1.359 mills for the Road and Bridge Fund,
0.935 mills for the Public Welfare Fund,0.115 mills for the Insurance Fund,and 1.500 mills for the Open Space Fund for levy
year 2019. Comprised of 4.485 mills for the General Fund, 1.359 mills for the Road and Bridge Fund, 1.020 mills for the Public
Welfare Fund,0.135 mills for the Insurance Fund,and 1.500 mills for the Open Space Fund for levy year 2020.
2 As of June 28,2021.
Source: County Treasurer's Office.
Largest Property Tax Taxpayers within the County. Based upon information obtained from the
County Assessor's Office,the following property owners were the largest property tax taxpayers within the
County during 2020:
TABLE IV
2020 Largest Property Taxpayers in the County
Percent of
Total Assessed
Name Assessed Valuation Valuation
The Vail Corporation $ 77,869,840 2.20%
DiamondRock Vail Owner,LLC 42,688,980 1.21
Ashford BC LP 34,018,440 0.96
Union Pacific Land Resources Corporation 33,229,600 0.94
Arrabelle at Vail Square,LLC 28,646,250 0.81
EX Vail LLC 26,973,770 0.76
Vail Hotel Partners,LLC 24,939,990 0.70
Vail Associates,LLC 24,543,890 0.69
Public Service Company of Colorado 19,045,700 0.54
Ferruco Vail Ventures,LLC 18,791,700 0.53
Total $330,748,160 234%
'The 2020 certified assessed valuation figure of the County used in computing the above was$3,542,577,310.
Source: County Assessor's Office.
Assessed and Actual Valuations of Classes of Property in the County. The following tables set
forth the assessed valuation and actual valuation of specific classes of property within the County for 2020.
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As shown below, residential property accounts for the largest percentage of the County's assessed
valuation. Therefore,it is anticipated that owners of residential property will pay the largest percentage of
ad valorem property taxes levied by the County.
TABLE V
2020 Assessed and"Actual"Valuation of Classes of Property in the County
Percent of Percent of
Assessed Assessed "Actual "Actual"
Class Valuation Valuation Valuation" Valuation
Residential $2,391,554,130 62.30% $33,448,198,120 86.51%
Commercial 908,004,470 23.35 3,131,045,160 8.10
Industrial 9,692,670 0.25 33,423,050 0.09
Agricultural 8,128,170 0.21 28,027,640 0.07
Natural Resource 2,200,120 0.06 7,586,680 0.02 •
Producing Mines 238,680 0.01 823,020 <0.00
State Assessed Properties 90,187,700 2.35 310,991,840 0.80
Vacant Land 132,571,370 3.45 457,140,140 1.18
TOTAL TAXABLE 3,542,577,310 92.28 37,417,235,650 96.78
Exempt Properties 296,185,420 7.72 1,245,174,140 3.22
TOTAL ALL $3,838,762,730 100.00% $38,662,409,790 100.00%
Source: County Assessor's Office.
Mill Levies Affecting Property Owners in Selected Areas of the County. In addition to the mill
levy imposed by the County,owners of property within the County are obligated to pay taxes to other taxing
entities in which their property is located. The Eagle County Assessor's Office reports that there are 86
active taxing entities overlapping the County. As a result,property owners within the County's boundaries
may be subject to a variety of different mill levies depending upon the location of their property.Mill levies
affecting property owners in the County range from 42.601 mills in an unincorporated area of the County
to 173.947 mills in an incorporated area of the County located in the Town of Gypsum. The median mill
levy within the County is 76.960 mills. Additional taxing entities may overlap the property within the
individual communities in the County in the future.
Sales Taxes
The County has imposed a 1%sales tax since 1982,pursuant to Section 29-2-101 et seq.,Colorado
Revised Statutes,as amended,and a special election of the voters of the County held on November 3, 1981.
At the November 7, 1995 election, County voters approved the imposition of an additional 0.5%sales tax
in the County, the proceeds of which are dedicated to financing, constructing, operating or maintaining a
mass transit system within the County, at least 10% of which must be spent on bike trails. As such, the
County is restricted in its ability to use such 0.5% sales tax for expenditures that fall outside of the voter
authorization. However, the Project falls within the transportation uses authorized to be funded with
proceeds of the 0.5%sales tax. In 2017,voters approved both a sales and excise tax on marijuana products.
In 2019, votes approved a sales tax on the sale of cigarettes, tobacco products, and nicotine products.
Although the proceeds of the marijuana products tax and nicotine products tax are restricted to providing
mental health and substance abuse services within the County and public health programs and education
regarding smoking and nicotine use, respectively,the availability of such additional sales tax revenue for
these types of services reduces the appropriations that would otherwise be made for such purposes from the
General Fund.
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The sales taxes are collected in all incorporated and unincorporated portions of the County. The
1% County-wide sales tax and 0.5%transportation sales tax, when combined with the State of Colorado
sales tax of 2.9%,brings the total sales tax in effect within the unincorporated areas of the County to 4.4%.
Sales taxes in effect in certain of the County's incorporated municipalities, specifically Avon, Eagle,
Gypsum, Minturn and Vail, bring the total sales tax imposed in such municipalities to between 4.4%and
8.4%.
The County's sales tax is imposed on the sale of tangible personal property at retail and the
furnishing of services as provided in Section 29-2-101 et seq., C.R.S., which sets forth the required
provisions of sales tax resolutions. The tax is imposed on all taxable transactions in the County,except that
the sales of food,the sales and purchase of electricity, coal, wood, gas, fuel oil, or coke sold to occupants
of residences,and the sales and purchases of machinery or machine tools are exempt.
Pursuant to the allocation formula approved by County voters, 35% of the revenues derived from
the County's 1% sales tax, immediately upon receipt by the County Treasurer, are deposited into the
County's Sales Tax Capital Improvement Fund solely for the purposes for which the Capital Improvement
Fund may be used,which would include payments of Base Rentals and Additional Rentals under the Lease;
15%of the County's 1%sales tax collected within the incorporated towns within the County is remitted to
each town based upon the amount of the 1%sales tax collected in each respective town;and the remaining
amounts collected from the 1%sales tax are used as determined from time to time by the Board for County
purposes,operations,and services.
Pursuant to the allocation formula approved by County voters, 90%of the revenues derived from
the County's 0.5%transportation sales tax,upon receipt by the County Treasurer,are deposited in the ECO
Transit Fund to be used for operating and maintain a public transportation system in the Eagle Valley and
the remaining amounts collected from the 0.5% transportation sales tax are deposited in the ECO Trails
Fund for use on bikepath or bikeway purposes. Additionally, amounts collected from the 0.5%
transportation sales tax collected within the boundaries of Basalt and El Jebel are to be used for those parts
of the County.
The collection, administration, and enforcement of the County's sales tax is performed by the
Executive Director of the Department of Revenue of the State, at no charge, in the same manner as the
collection,administration,and enforcement of the State sales tax. The provisions of Section 39-26-101,et
seq.,C.R.S.,and rules and regulations of the Department of Revenue govern the collection,administration,
and enforcement of the County sales tax. Because of the administrative time lag involved in collecting and
recording the remittances of individual vendors, the County expects to receive successive monthly
distributions on or around the 10th day of each month following the month of collection.The tax is received
two months in arrears. This means that the tax paid by consumers in January is received by the County in
March,typically between the 8th and 10th of the month.
The following tables present the historical 1%and 0.5%sales tax collections in the County reported
on an accrual basis of accounting and monthly comparison of 1%and 0.5%sales tax collections. Although
sales taxes have an approximate two month lag between collection by the State of sales tax revenues from
vendors and distribution of the sales tax revenues to the County,the accrual method of accounting shows
the revenue in the month in which it was earned.
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TABLE VI
County 1%Sales Tax Collections-Accrual Basis 2016-2020
Jurisdiction 2016 2017 2018 2019 2020
Towns $11,269,396 $11,834,947 $12,934,200 $14,567,335 $14,017,409
Unincorporated areas 5,081,164 4,670,797 4,866,715 5,855,708 6,029,836
Total Collected 16,350,560 16,505,744 17,800,915 20,423,043 20,047,244
Less Town Portion
(15%) (1,690,409) (1,775,242) (1,940,130) (2,185,100) (2,102,611)
Total County Portion $14,660,151 $14,730,502 $15,860,785 $18,237,943 $17,944,633
%Change-County
Portion 3.10% .48% 7.67% 14.99% (1.61)%
County Portion-
General Fund $8,937,455 $8,953,491 $9,630,464 $11,089,878 $10,928,097
County Portion-CIP
Fund $5,722,696 5,777,010 $6,230,320 $7,148,065 $7,016,535
Source: County Finance Office.
• TABLE VII
Monthly Comparison of County 1%Sales Tax Collections'
12-Month Period 12-Month Period 12-Month Period Period Ended
Month Ended 12/31/2018 Ended 12/31/2019 Ended 12/31/2020 04/30/20212
January $1,831,918 $2,142,674 $2,327,987 $2,089,797
February 2,004,963 2,153,604 2,306,354 2,194,808
March 2,206,073 2,350,403 1,345,046 2,679,539
April 995,067 1,128,768 1,134,287 1,451,386
May 881,308 923,895 1,058,531 --
June 1,291,807 1,326,148 1,353,987 --
July 1,569,081 1,808,130 1,744,154 --
August 1,412,056 1,629,209 1,739,802 --
September 1,212,531 1,466,687 1,658,841 --
October 1,040,956 1,256,502 1,441,852 --
November 1,007,993 1,488,894 1,409,161 --
December 2,347,161 2,748,128 2,527,242 --
TOTAL $17,800,914 $20.4234042 $20,047,244 $8,415,530
Presented on an accrual basis.
2 Collections through April 30,2021.
Source: County Finance Office.
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TABLE VIII
County 0.5%Transportation Sales Tax Collections-Accrual Basis 2016-2020
2016 2017 2018 2019 2020
TOTAL COLLECTIONS
Eagle Valley $7,592,610 $7,630,153 $8,220,415 $9,465,588 $9,137,649
Roaring Fork Valley 481,385 547,525 591,116 687,947 820,475
Total $8,073,995 $8,177,678 $8,811,531 $10,144,535 $9,958,125
Percent Change 4.13% 1.28% 7.75% 15.13% (1.84)%
90%TRANSPORTATION
Eagle Valley $6,833,349 $6,867,137 $7,398,374 $8,510,929 $8,223,884
Roaring Fork Valley 433.246 492,773 '532,004 619,152 738,428
Total $7,266,596 $7,359,910 $7,930,378 $9,130,081 $8,962,312
Percent Change 4.13% 1.28% 7.75% 15.13% (1.84)%
10%TRAILS
Eagle Valley $759,261 $763,015 $822,042 $ 945,659 $913,765
Roaring Fork Valley 48,138 54,753 59.112 68,795 82,048
Total $807,400 $817,768 $881,153 $1,014,453 $995,812
Percent Change 4.13% 1.28% 7.75% 15.13% (1.84)%
Source: County Finance Office.
TABLE IX
Monthly Comparison of County 0.5%Transportation Sales Tax Collections'
12-Month Period 12-Month Period 12-Month Period Period Ended
Month Ended 12/31/2018 Ended 12/31/2019 Ended 12/31/2020 04/30/2021 2
January $906,536 $1,072,339 $1,149,524 $1,035,172
February 979,935 1,061,705 1,139,541 1,086,138
March 1,098,256 1,163,280 664,336 1,323,964
April 488,610 561,237 562,615 720,971
May 438,089 460,660 528,401 --
June 645,170 659,617 673,819 --
July 775,250 897,935 866,388 --
August 700,151 809,044 865,590 --
September 603,355 729,403 825,292 --
October 518,571 626,893 718,419 --
November 498,350 741,343 702,770 --
December 1,159.258 1,361,078 1,261,431 --
TOTAL $8,811,531 $10,144,534 $9,958,126 $4,166,245
Presented on an accrual basis.
2 Collections through April 30,2021.
Source: County Finance Office.
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The following tables provide information regarding the total County sales tax collections by
industry type in 2020,including the 1%sales tax and the 0.5%sales tax.
TABLE X
2020 Actual County 1.0% Sales Tax Collections by Industry Type
Sales and Use Tax
Industry Revenue' %of Total
Lodging $ 4,239,209 21.15%
General Retail 5,995,314 29.91
Restaurants&Breweries 2,680,534 13.37
Grocery 1,670,899 8.33
Construction Services&Materials 2,068,739 10.32
Utilities&Telecommunications 966,073 4.82
Professional Services 1,013,629 5.06
Car Sales&Rentals 731,471 3.65
Manufacturing&Production 590,449 2.95
All Others 90,926 0.45
Total $20,047,243 100.00%
Based on month received(accrual-basis)as of December 31,2020.
Source: County Finance Office.
TABLE XI
2020 Actual County 0.5%Transportation Sales Tax Collections by
Industry Type
Sales and Use Tax
Industry Revenue %of Total
Lodging $2,119,180 21.28%
General Retail 2,977,264 29.90
Restaurants&Breweries 1,340,235 13.46
Grocery 840,899 8.44
Construction Services&Materials 1,034,543 10.39
Utilities&Telecommunications 482,920 4.85
Professional Services 506,842 5.09
Car Sales&Rentals 309,087 3.10
Manufacturing&Production 293,397 2.95
All Others 53,755 0.54
Total $9,958,122 100.00%
'Based on month received(accrual-basis)as of December 31,2020.
Source: County Finance Office.
The County reports that the top ten sales taxpayers for total sales taxes in 2020 comprised
approximately 18.84%of all sales tax revenues received in such year. The 2020 top ten filers are listed in
alphabetical order as follows: Airbnb Inc.; Amazon.com Services LLC; Bachelor Gulch LLC; Costco
Wholesale;Dillon Companies/Kroger(City Market); Ex Vail,LLC;Holy Cross Electric Assn. Inc.; Home
Depot USA Inc.; SSI Venture LLC;and Walmart Stores Inc.
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Specific Ownership Taxes
Specific ownership taxes represent the amounts received by the County from the State pursuant to
statute primarily on motor vehicle licensing. Such tax is collected by all counties and distributed to every
taxing entity within a county,such as the County,as applicable,in the proportion that the taxing entity's ad
valorem taxes represents the cumulative amount of ad valorem taxes levied county-wide. The table below
sets forth the specific ownership taxes received by the County(not including amounts sent to other taxing
entities).
TABLE XII
Specific Ownership Taxes Collected by County
2017 2018 2019 2020
$1,369,762 $1,423,414 $1,543,555 $1,534,951
Specific ownership taxes are not included in the property tax data reflected above. Specific
ownership taxes collected by County are not deposited to the General Fund,the Capital Improvements Fund
or the ECO Trails Fund. Instead,the Board determined in 2016 to deposit such revenues in the Road and
Bridge Fund which is used primarily for road maintenance. According to the County, in the future, the
Board could determine to deposit these revenues in the General Fund.
Potential Impact Fees
Generally, impact fees are one-time payments imposed on new development and are used to defray the
proportional cost of growth-related capital projects. The County may impose and collect impact fees
pursuant to Section 29-20-104.5, C.R.S. The County has historically collected impact fees relating solely
to new road projects. It is currently considering the imposition of new impact fees to offset a proportional
amount of the costs to complete the Project. The County anticipates presenting to the Board a resolution
approving the imposition of the impact fees within the next ninety (90) days and if such resolution is
adopted,the County expects to deposit these impact fees in the ECO Trails Fund. There is no assurance
that the impact fee resolution will be presented to the Board for approval in the time frame anticipated by
the County or at all or that the Board will adopt it.
Accounting Policies and Financial Statements
The County maintains 29 individual funds, including governmental funds, special revenue funds,
enterprise funds, internal service funds, and component units, as more particularly described in
"APPENDIX A—AUDITED FINANCIAL STATEMENTS FOR THE COUNTY FOR THE FISCAL
YEAR ENDED DECEMBER 31,2020." The County's major funds are the General Fund,Road and Bridge
Fund,ECO Transit Fund,Airport Fund,Open Space Fund and Capital Improvement Fund.
Under Colorado statutes, the Board is required to have the financial statements of the County
audited at least annually. The audited financial statements must be filed with the Board by July 1 of each
year, and with the State Auditor 30 days thereafter. The County's financial statements for the year ended
December 31, 2020, the most recent audited financial statements available, and the auditor's opinion on
such financial statements of McMahan and Associates, L.L.C., Avon, Colorado, independent certified
public accountants,is included herein as"APPENDIX A—AUDITED FINANCIAL STATEMENTS FOR
THE COUNTY FOR THE FISCAL YEAR ENDED DECEMBER 31,2020."
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Historical Financial Information
Although the County is not obligated to pay Base Rentals and Additional Rentals from any
particular revenue source,it is the current expectation of the Board that Base Rentals and Additional Rentals
will be paid(to the extent funds are appropriated therefor each year)from revenues in the ECO Trails Fund
and the Capital Improvements Fund and,if needed,from the General Fund.Set forth in the following tables
are a five-year comparative statement of revenues and expenditures of the County's General Fund,Capital
Improvements Fund and ECO Trails Fund, including the December 31 fund balance for each year. The
following information should be read together with the general purpose financial statements and
accompanying notes of the County appended hereto. Preceding years' audited financial statements of the
County may be obtained from the sources designated in"MISCELLANEOUS—Additional Information."
[Remainder of Page Intentionally Left Blank]
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TABLE XIII
Statement of Revenues and Expenditures and Fund Balances-General Fund
2016 2017 2018 2019 2020
Revenues:
Taxes $24,445,676 $24,686,488 $26,253,949 $29,282,511 $28,277,233
Licenses and permits 2,936,048 3,308,569 3,415,815 3,402,127 3,919,347
Fines and forfeitures 87,172 96,724 81,747 81,534 64,081
Intergovernmental 5,656,779 6,573,365 6,938,445 7,985,886 7,274,779
Charges for services 5,717,824 6,024,615 6,745,297 6,664,939 6,481,590
Rents and royalties 89,762 99,538 140,782 113,886 71,392
Investment earnings 709,059 668,706 1,703,126 3,108,518 2,519,683
Contributions and
donations 43,654 156,352 18,793 3,649,0531 120,004
Reimbursement of
expense -- -- -- 12,500 --
Miscellaneous 214,671 208,920 176,806 325,179 259,874
Total Revenues 39,900,645 41,823,277 45,474,760 55,172,133 49,487,983
Expenditures:
General government 17,346,492 17,409,861 18,659,250 21,608,287 24,035,481
Public safety 13,955,670 14,332,985 15,894,398 16,539,503 17,845,387
Public works 2,179,294 2,165,746 2,046,722 8,874,488 1,943,066
Health&welfare 2,366,383 2,459,864 2,792,477 3,384,020 --
Culture&recreation 654,757 675,505 650,439 740,106 296,850
Capital outlay 190,500 2,542,637 160,344 204,234 --
Total Expenditures 36,693,096 39,586,598 40,203,630 51,350,638 44,120,784
Excess of revenues
over expenditures 3,207,549 2,236,679 5,271,130 3,821,495 5,367,199
Other financing sources
(uses):
Sales of capital assets 150,000 50 26,000 -- 702,009
Transfers in 2,790,000 2,600,000 1,020,000 --
Transfers out 2 (1,749,173) (6,545,380) (2,862,073) (2,389,687) (2,397,315)
Total other financing
sources(uses) (1,599,173) (3,755,330) (236.073) (1,369,687) (1,695,306)
Net change in fund
balance 1,608,376 (1,518,651) 5,035,057 2,451,808 3,671,893
Fund balance-beginning 26,440,684 28,049,060 26,530,409 31,565,466 34,017,276
Fund balance-ending $28,049,060 $26,530,409 $31,565,466 $34,017,274 $37,689,169
'The County received contribution revenue in the amount of approximately$3,600,000 from the Edwards Metropolitan District for use
in the construction of the Edwards Phase 2 Interchange
2 The County has provided the following information regarding transfers out of the General Fund.For the years ended December 31,
2016-2020,transfers in amounts ranging from$1,300,000 to$2,200,000 were made to the Public Health Fund in order to provide
funding for the County Public Health and Environment Department.For the year ended December 31,2016,$250,000 was transferred
to the Eagle County Housing and Development Authority in order to provide funding for housing.For the year ended December 31,
2017,$335,000 was transferred to the Emergency Reserve Fund to comply with TABOR emergency fund balance requirements and
$4,400,000 was transferred to the Open Space Fund to facilitate the purchase of a nearby ranch to preserve it as open space.The Open
Space Fund repaid$1,750,000 to the General Fund in 2017 and$2,600,000 to the General Fund in 2018.For the year ended December
31,2018,$500,000 was transferred to the Mental Health and Substance Abuse fund to provide funding for mental health and substance
abuse services in the County and$1,000,000 was transferred to the ECO Trails Fund to provide funding for trail construction.For the
year ended December 31, 2019, $1,000,000 was transferred back to the General Fund from the ECO Trails Fund following
reimbursement from Great Outdoors Colorado for the trail construction.For the years ended December 31,2019 and 2020,$250,000
and$150,000,respectively,was transferred to the Insurance Reserve Fund to accumulate funds to pay the County's annual casualty and
property insurance premiums.For the years ended December 31,2016-2020,transfers in amounts ranging from$53,000 to$90,000
were transferred to the Sanitary Landfill Fund in order to provide for landfill services.
Source: County audited financial statements for years ended December 31,2016-2020.
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TABLE XIV
Statement of Revenues and Expenditures and Fund Balances—Capital Improvements
2016 2017 2018 2019 2020
Revenues:
Taxes $5,899,201 $5,957,984 $6,419,383 $ 7,336,342 $ 7,016,392
Intergovernmental -- -- -- 30,000 57,000
Contributions and
donations -- -- -- 42,500 --
Investment earnings -- -- 3,811 105,968 226,512
Miscellaneous 693 205 -- 10,873 --
Total Revenues 5,899,894 5,958,189 6,423,194 7.525.683 7,299,904
Expenditures:
General government 1,812,272 1,720,281 536,443 1,599,710 466,200
• Public safety 173,929 412,130 215,910 47,011 76,549
Public works 152,590 38,355 72,800 49,672 306,168
Debt service—principal -- -- 2,065,000 940,000 1,635,000
Debt service—interest -- -- 700,050 850,103 1,017,500
Capital outlay 1,730,441 900,264 4,637,137 5,487,772 6,251,655
Total Expenditures 3.869.232 3.071,030 8,227,340 8,974,268 9,753,042
Excess of revenues
over expenditures 2,030,662 2,887,159 (1,804,146) (1,448,585) (2,453,138)
Other financing sources
'(uses):
Sales of assets 5,550 -- -- -- --
Certificates of
participation issued -- -- -- 8,310,000 --
Premium on certificates
of participation -- -- -- 1,405,679 --
Issuance costs -- -- -- (215,679) --
Transfers in 47,940 -- 20,543 -- 88,715
Transfers out (3,284,900) (3,060,500) -- -- --
Total other financing
sources(uses) (3,231,410) (3,060,500) 20,534 9,500,000 88.715
Net change in fund
balance (1,200,748) (173,341) (1,783,603) 8,051,415 (2,364,423)
Fund balance-beginning 9,196,629 7,995,881 7,822,540 6,038,937 14,090,352
Fund balance-ending $7,995,881 $7,822,540 $6,038,937 $14,090,352 $11,725,929
Source: County audited financial statements for years ended December 31,2016-2020
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TABLE XV
Statement of Revenues and Expenditures and Fund Balances-ECO Trails
2016 2017 2018 2019 2020
Revenues:
Taxes $ 772,806 $ 748,634 $ 823,651 $ 944,861 $ 913,603
Intergovernmental 10,000 6,552 2,210,000 8,710 26,175
Investment earnings 11,956 15,097 21,780 34,927 21,487
Contributions and
donations 3,200 3,100 125 6,500 1,000
Miscellaneous -- -- -- -- --
Total Revenues 797,962 773,383 3,055,556 994,998 962,265
Expenditures:
General government 7,887 7,581 10,174 9,167 9,490
Culture and
recreation 226,139 231,819 233,348 339,603 284,581
Intergovernmental 515,770 48,820 -- -- --
Capital outlay 625,814 1,925,633 3,444,474 628,806 92,576
Total Expenditures 1,375,610 2,213,853 3,687,996 977.576 386.647
Excess of revenues
over expenditures (577,648) (1,440,470) (632,440) 17,422 575,618
Other financing sources
(uses):
Transfers in -- 2,000,000 1,000,0001 -- --
Transfers out -- -- -- (1,000,000)1 --
Total other financing
sources(uses) -- 2,000,000 1,000,000 (1,000,000) --
Net change in fund
balance (577,648) 559,530 - 367,560 (982,578) 575,618
Fund balance-
beginning 1,770,558 1,192,910 1,752,440 2,120,000 1,137,422
Fund balance-ending $1,192,910 $1,752,440 $2,120,000 $1.137.422 $1,713,040
'For the year ended December 31,2018,$1,000,000 was transferred from the General Fund to the ECO Trails Fund to provide
funding for trail construction.For the year ended December 31,2019,$1,000,000 was transferred back to the General Fund from
the ECO Trails Fund following reimbursement from Great Outdoors Colorado for the trail construction.
Source: County audited financial statements for years ended December 31,2016-2020
Budget and Appropriation Procedure
The County's budget is prepared on a calendar year basis as required by Article 1 of Title 29,C.R.S.
Each budget must present a complete financial plan for the County setting forth all estimated expenditures,
revenues,and other financing sources for the ensuing budget year,together with the corresponding figures
for the previous fiscal year.
On or before October 15 of each year,the County's budget officer must submit a proposed budget
to the Board for the next fiscal year. Thereupon notice must be published stating,among other things,that
the proposed budget is open for inspection by the public and that interested electors may file or register any
objection to the budget prior to its adoption.
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Before the beginning of the fiscal year, the Board must enact an appropriation resolution which
corresponds with the budget. The income of the County must be allocated in the amounts and according to
the funds specified in the budget for the purpose of meeting the expenditures authorized by the appropriation
resolution. County expenditures may not exceed the amounts appropriated, except in the case of an
emergency or a contingency which was not reasonably foreseeable. Under such circumstances,the Board
may authorize the expenditure of funds in excess of the budget by a resolution adopted by a majority vote
of the Board following proper notice. If the County receives revenues which were unanticipated or
unassured at the time of adoption of the budget, the Board may authorize the expenditure thereof by
adopting a supplemental budget and appropriation resolution after proper notice and a hearing thereon. The
transfer of budgeted and appropriated moneys within a fund or between funds may be accomplished only
in accordance with State law.
The Board timely adopted the County's 2021 budget and appropriation resolution pursuant to the
above described procedure and filed such budget with the State Department of Local Affairs by January 31,
2021.
Limitation on Certain Tax Revenues. It is through the preparation of the budget and by taking
into consideration all sources of revenue, costs of construction, expenses of operating the County, and the
debt service requirements of the County's outstanding bonds and the other obligations of the County that
the rate of mill levy is determined each year. Pursuant to the provisions of Section 20 of Article X of the
Colorado Constitution, the County is subject to tax revenue limitations as described in"—Constitutional
Amendment Limiting Taxes and Spending,"but has received voter approval to waive such limitations.
Budgeted Financial Information. Although the County is not obligated to pay Base Rentals and
Additional Rentals from any particular revenue source, it is the current expectation of the Board that Base
Rentals and Additional Rentals will be paid(to the extent funds are appropriated therefor each year)from
revenues in the ECO Trails Fund,the Capital Improvements Fund and, if needed,from the General Fund.
The following tables set forth a comparison and a summary of the 2020 and 2021 budgets,the 2020 year-
end audited figures, and the 2021 year-to-date unaudited figures for the County's General Fund, Capital
Improvements Fund and ECO Trails Fund.
[Remainder of Page Intentionally Left Blank]
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TABLE XVI
General Fund Budget Summary and Comparison
2020 Budget 2020 Year-End 2021 Budget 2021 Year-to-Date
(as amended) (audited) (as amended) (unaudited)'
Revenue
Property taxes $15,475,710 $15,166,380 $14,998,031 $ 6,972,210
Sales and use taxes 13,301,523 12,915,173 11,527,245 , 1,389,532
Licenses,permits,sales and fines 1,928,893 1,688,975 1,714,992 513,874
Intergovernmental revenue 1,350,438 1,708,650 1,797,484 874
Federal grants 3,565,727 4,239,280 1,184,563 61,775
Grants(non-federal) 403,357 848,146 385,591 299,126
Payments in lieu of taxes 1,955,257 1,955,257 1,900,000 --
Charges for services 8,370,194 7,700,579 7,966,552 2,800,571
Taxable and nontaxable sales 6,092 15,000 15,000 --
Fines and forfeitures 141,839 145,000 131,000 32,054
Investment earnings 2,519,683 1,900,024 1,243,122 381,957
Rents and royalties 89,392 86,243 95,360 11,685
Contributions and donations 120,000 154,106 53,000 686
Proceeds of capital asset dispositions 702,009 -- -- --
Miscellaneous 259,874 72,700 73,000 46,130
Revenue Totals 50,189,987 48,595,513 43,084,940 12,510,449
Expenditures
Salaries and benefits 27,491,863 27,810,298 25,803,374 5,611,062
Training benefits 250,116 334,218 373,924 45,478
General and administrative-reimbursed 41,351 40,707 97,592 24,398
Purchased professional and technical
services 1,276,956 1,342,499 1,168,905 363,669
Purchased property services 2,415,635 2,630,277 2,870,911 799,588
Other purchased services 3,942,380 5,095,365 4,316,327 895,231
General and administrative (3,482,390) (3,480,555) (3,193,495) (803,938)
Sheriff related services 14,325 20,500 20,500 15,329
Interdepartmental services 1,231,440 1,429,509 1,423,292 314,815
Intergovernmental expenditures 6,133,744 6,707,439 5,286,714 1,590,501
Operating leases -- 20,000 -- --
Capital leases 35,569 35,569 35,569 --
Rebate expense 120,000 120,000 120,000 120,000
Supplies 1,270,850 1,570,380 1,230,694 177,090
Other charges 7,448 10,000 1,000 --
Property -- (9,847) 40,000 3,707
Grants and contributions issued 2,688,878 3,161,082 2,977,432 2,418,353
Treasurer's fees 682,615 690,000 690,000 272,503
Interest expense -- 500 500 336
Transfers out 2,397,315 2,310,000 1,850,000 --
Expenditure Totals 46,518,094 49,837,941 45,113,239 11,848,120
Net change in fund balance 3,671,894 (1,242,428) (2,028,299) 662,328
Beginning Fund Balance 34,017,274 34,017,274 37,689,167 37,689,167
Ending Fund Balance $37,689,167 $32,774,846 $35,660,868 $38,351,495
'As of March 31,2021.
Source: County 2020 and 2021 Budgets,and the County
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TABLE XVII
Capital Improvements Fund Budget Summary and Comparison
2020 Budget 2021
(as 2020 Year- 2021 Budget Year-to-Date
amended) End(audited) (as amended) (unaudited)1
Revenue
Property taxes levied $ (143) $ -- $ -- $ (107)
Sales and use taxes 7,016,535 6,860,000 6,075,856 731,429
Investment earnings 226,512 106,028 140,884 37,566
Grants(non-federal) 57,000 -- 34,000 --
Interfund transfers in 88,715 96,000 234,000 --
Revenue Totals 7,388,619 7,062,028 6,484,740 768,888
Expenditures
Training benefits 5,387 6,550 -- --
Purchased property services 468,487 471,140 440,000 23,472
Other purchased services 31 -- -- --
Supplies 223,232 240,684 16,700 --
Property 6,341,005 7,359,229 3,969,090 82,700
Grants and contributions issues (9,383) 50,000 -- --
Treasurer's fees 71,783 76,000 70,000 21,089
Debt service 1,635,000 1,635,000 1,710,000 --
Interest expense 1,017,500 1,016,000 944,000 --
Expenditure Totals 9,753,042 10,854,603 7,149,790 127,260
Net change in fund balance (2,364,424) (3,792,575) (665,050) 641,628
Beginning Fund Balance 14,090,352 14,090,352 11,725,928 11,725,928
Ending Fund Balance $11,725,928 $10,297,777 $11,060,878 $12 367,556
'As of March 31,2021.
Source: County 2020 and 2021 Budgets,and the County.
•
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TABLE XVIII
ECO Trails Fund Budget Summary and Comparison
2020 Budget 2021
(as 2020 Year- 2021 Budget Year-to-Date
amended) End(audited) (as amended) (unaudited)1
Revenue
Sales and use taxes $ 913,603 $ 897,480 $ 803,133 $ 96,980
Federal grants 5,855 16,000 -- --
Grants(non-federal) 20,320 -- 7,000 --
Investment earnings 21,487 30,773 16,575 5,531
Contributions and donations 1,000 -- -- 300
Revenue Totals 962,265 944,253 826,708 102,811
Expenditures
Salaries and benefits 223,789 229,880 218,053 49,606
Training benefits -- 250 1,000 --
General and administrative -
reimbursed (40,707) (40,707) (97,592) (24,398)
Purchased professional and
technical services 3,947 18,000 133,500 4,475
Purchased property services 684 1,030 1,030 160
Other purchased services 49,118 134,463 104,800 5,164
General and administrative 40,707 40,707 97,592 24,398
Interdepartmental services 1,805 11,108 14,412 4,593
Intergovernmental expenditures -- -- 100,000 --
Supplies 5,238 7,200 11,600 657
Property 92,576 354,087 1,180,000 2 --
Treasurer's fees 9,490 10,000 10,000 2,928
Expenditure Totals 386,648 766,018 1,774,395 67,582
Net change in fund balance 575,617 178,235 (947,687) 35,229
Beginning Fund Balance 1,137,422 1,137,422 1,713,039 1,713,039
Ending Fund Balance $1,713,039 $1,315,657 $ 765,352 $1,748,269
'As of March 31,2021.
2 The County budgeted increased funding to be used for the design of the section of the Eagle Valley Trail from Horn Ranch to Edwards.
Source: County 2020 and 2021 Budgets,and the County.
Administration's Summary of Material Trends
For a discussion and analysis of County operations, see the County's audited financial statements
appended hereto for the Management's Discussion and Analysis,which provides a narrative overview and
analysis of the financial activities of the County for the year ended December 31,2020.
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Constitutional Amendment Limiting Taxes and Spending
On November 3, 1992, Colorado voters approved an amendment to the Colorado Constitution,
which is commonly referred to as the Taxpayer's Bill of Rights,or Amendment One("TABOR"),and now
constitutes Section 20 of Article X of the Colorado Constitution. TABOR imposes various limits and new
requirements on the State and all Colorado local governments which do not qualify as "enterprises"under
TABOR (each of which is referred to in this Section as a "governmental unit"). Any of the following
actions, for example, now require voter approval in advance: (a) any increase in a governmental unit's
spending from one year to the next in excess of the rate of inflation plus a"growth factor"based on the net
percentage change in actual value of all real property in a governmental unit from construction of taxable
real property improvements,minus destruction of similar improvements,and additions to,minus deletions
from, taxable real property for government units other than school district, and the percentage change in
student enrollment for a school district; (b) any increase in the real property tax revenues of a local
governmental unit (not including the State) from one year to the next in excess of inflation plus the
appropriate "growth factor" referred to in clause (a) above; (c) any new tax, tax rate increase, mill levy
above that for the prior year, valuation for assessment ratio increase for a property class, extension of an
expiring tax or a tax policy change directly causing a net tax revenue gain; and(d) except for refinancing
bonded indebtedness at a lower interest rate or adding new employees to existing pension plans, creation
of any multiple fiscal year direct or indirect debt or other financial obligation whatsoever without adequate
present cash reserves pledged irrevocably and held for payments in all future fiscal years. Elections on
such matters may only be held on the same day as a State general election,at the governmental unit's regular
biennial election or on the first Tuesday in November of odd numbered years, and must be conducted in
accordance with procedures described in TABOR.
Revenue collected, kept or spent in violation of the provisions of TABOR must be refunded,with
interest. TABOR requires a governmental unit to create an emergency reserve of 3% of its fiscal year
spending(excluding bonded debt service)in 1995 and subsequent years. TABOR provides that"[w]hen[a
governmental unit's]annual...revenue is less than annual payments on general obligation bonds,pensions,
and final court judgments,the [voter approval requirement for mill levy and other tax increases referred to
in clause(c)of the preceding paragraph and the voter approval requirement for spending and real property
tax revenue increases referred to in clauses (a) and(b)of the preceding paragraph] shall be suspended to
provide for the deficiency." The preferred interpretation of TABOR shall, by its terms, be the one that
reasonably restrains most the growth of government.
De-Brucing. Pursuant to an election held in 1995,voters of the County have approved an election
question allowing the County to collect,receive,retain,and spend all revenues without regard to the revenue
and spending limitations of TABOR.
Lease Purchase Exemption. Voter approval under TABOR is not required for the execution and
delivery of the Certificates,because the County is not obligated to pay Base Rentals or Additional Rentals
under the Lease unless funds are appropriated for such rentals by the County each year. Thus, the
Certificates are not a"multiple fiscal year direct or indirect . . . debt or other financial obligation" of the
County within the meaning of TABOR. This conclusion is consistent with the decision of the Colorado
Court of Appeals in the case of Board of County Commissioners of the County of Boulder v. Dougherty,
Dawkins, Strand & Bigelow Incorporated, 890 P.2d 199 (Colo. App. 1994). See "CERTAIN RISK
FACTORS—Nonappropriation."
DEBT STRUCTURE
The following is a discussion of the County's authority to incur general obligation indebtedness
and other financial obligations and the amount of such obligations presently outstanding.
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Required Elections
Article X,Section 20 of the Colorado Constitution requires that,except for refinancing bonded debt
at a lower interest rate, the County must have voter approval in advance for the creation of any multiple
fiscal year direct or indirect County debt or other financial obligation whatsoever without adequate present
cash reserves pledged irrevocably and held for payments in all future fiscal years. As discussed in
"COUNTY FINANCIAL INFORMATION—Constitutional Amendment Limiting Taxes and Spending—
Lease Purchase Exemption" above, an election is not required for the execution and delivery of the
Certificates. For a discussion of TABOR, see the caption "COUNTY FINANCIAL INFORMATION—
Constitutional Amendment Limiting Taxes and Spending"above.
General Obligation Debt
The Board has the power to contract indebtedness on behalf of the County by borrowing money or
issuing notes and bonds to carry out the objectives or purposes of the County. Debt may be incurred only
by resolution which is irrepealable until such indebtedness has been fully paid. The resolution also must
specify the use of the funds and provide for the levy of a tax which,together with other legally available
funds and revenues of the County,will be sufficient to pay the principal of and interest on such debt when
due. Although, as described above in "—Required Elections,"the County may refund existing debt at a
lower interest rate without an election, no new debt may be created unless the question of incurring the
indebtedness and a maximum net effective interest rate therefor has been submitted to and approved by a
majority of qualified electors of the County voting at an election held for that purpose. See "COUNTY
FINANCIAL INFORMATION—Constitutional Amendment Limiting Taxes and Spending."
Pursuant to Section 30-26-301(3), C.R.S., the total outstanding indebtedness of the County may
not exceed 3% of the statutory actual value of taxable property within the County as determined by the
County Assessor for the last preceding assessment.
Outstanding Debt. The County has no general obligation indebtedness outstanding.
Estimated Overlapping General Obligation Debt. Certain public entities whose boundaries may
be entirely within,coterminous with,or only partially within the County are also authorized to incur general
obligation debt,and to the extent that properties within the County are also within such overlapping public
entities such properties will be liable for an allocable portion of such debt. For purposes of this Official
Statement, the percentage of each entity's outstanding debt chargeable to County property owners is
calculated by comparing the assessed valuation of the portion overlapping the County to the total assessed
valuation of the overlapping entity. To the extent the County's assessed valuation changes
disproportionately with the assessed valuation of overlapping entities,the percentage of general obligation
debt for which the County's property owners are responsible will also change.
The following table sets forth the estimated overlapping general obligation debt chargeable to
properties within the County as of the date of this Official Statement. The County is not financially or
legally obligated with regard to any of the indebtedness shown on the immediately following table.
Although the County has attempted to obtain accurate information as to the outstanding debt of the entities
that overlap the County, it does not warrant its completeness or accuracy as there is no central reporting
entity that is responsible for compiling this information.
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TABLE XIX
Estimated Overlapping General Obligation Debt
2020 Outstanding Estimated Net Debt
Overlapping Public Assessed General Chargeable to Properties
Entity Valuation Obligation Debt in the County
Percent Amount
Metropolitan Districts $ 1,026,074,150 $185,848,836 See fn 1 $185,848,836
School Districts 2 3,542,577,310 423,349,770 See fn 2 418,008,720
Other Districts 3 5,929,764,910 73,226,278 See fn 3 70,627,813
Town of Basalt 134,729,420 1,529,000 70.60% 1,079,474
Town of Avon 253,999,770 17,756,032 100.00 17,756,032
Total $10,887,145,560 $701,709,916 $693,320,875
I Combined information for the following entities as of December 31,2020:Airport Commerce Center Metropolitan District
(100.00%),Arrowhead Metro District(100.00%),Bachelor Gulch Metro District(100.00%),Beaver Creek Metro District
(100.00%),Berry Creek Metro District(100.00%),Buckhom Valley Metro District No.2(100.00%),Cascade Village Metro
District(100.00%),Chatfield Corners Metro District(100.00%),Cotton Ranch Metro District(100.00%),Eagle Ranch Metro
District(100.00%), Eagle-Vail Metro District(100.00%), Red Sky Ranch Metro District(100.00%), Ruedi Shores Metro
District (100.00%), Solaris Metro District No. 3 (100.00%), The Village (100.00%), Vail Square Metro District No. 1
(100.00%)and Valagua Metropolitan District(100.00%).
2 Combined information for the following entities as of June 30,2020: School District JT-1(West Grand)(1.00%), School
District RE-1(Roaring Fork)(100.00%),and School District RE50J(Eagle)(100.00%).
3 Basalt& Rural Fire District(100.00%), Basalt Regional Library District(57.00%), Basalt Sanitation District(45.73%),
Crown Mountain Park and Recreation District(59.20%),Eagle River Fire Protection District(100.00%),Eagle River Water
& Sanitation District (Wastewater) (100.00%) and Eagle River Water & Sanitation District-Water Sub District-Vail
(100.00%).
Source: County Assessor, the County's audited financials for the year ended December 31, 2020 and individual taxing
entities.
Revenue and Other Financial Obligations
The County has the power to issue revenue obligations, payable from the net revenue of County
facilities or payable in whole or in part from the proceeds of sales and use taxes, and other financial
obligations, subject to the election requirements described above. None of the following obligations are
secured by the Leased Property.
The following table sets forth the County's outstanding revenue and other financial obligations:
[Remainder of Page Intentionally Left Blank]
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TABLE XX
Outstanding Obligations as of December 31,2020 t
Issue Amount Outstanding
Refunding Certificates of Participation, Series 2015 $11,230,000
Certificates of Participation, Series 2019 7,650,000
Airport Revenue Bonds 2 32,030,000
Eagle County Housing and Development Authority —
Mortgage Notes 3 31,788,471
The County's audited financial statements for year ended December 31,2020 reflect certain additional long-
term debt, including certain private activity bonds and notes issued by the Golden Eagle Elderly Housing
Corporation.However,such debt is not an obligations of the County and,as a result,is not reflected in the above
table.
2 Comprised of Airport Terminal Project Revenue Refunding Bonds, Series 2011A and Air Terminal Project
Revenue Refunding Bonds,Series 2017B.
3 Comprised of HUD-Insured Mortgage Notes,Series 2012 and Re-Siding Project Mortgage Notes,Series 2017.
Source:the County and the County's audited financials for the year ended December 31,2020.
LEGAL MATTERS
Sovereign Immunity
The Governmental Immunity Act, Title 24, Article 10, Part 1, C.R.S. (the "Governmental
Immunity Act"),provides that,with certain specified exceptions, sovereign immunity acts as a bar to any
action against a public entity, such as the County, for injuries which lie in tort or could lie in tort.
The Governmental Immunity Act provides that sovereign immunity does not apply to injuries
occurring as a result of certain specified actions or conditions. In general, public entities will not be held
liable for willful and wanton acts or omissions or willful and wanton acts or omissions of its public
employees which occurred during the performance of their duties and within the scope of their employment.
However, if a plaintiff can meet the burden of proof required to show that any one of the exceptions
specified in the Governmental Immunity Act applies, the public entity may be liable for injuries arising
from an act or omission of the public entity, or an act or omission of its public employees, which was not
willful and wanton, and which occur during the performance of their duties and within the scope of their
employment. The maximum amounts that may be recovered under the Governmental Immunity Act,
whether from one or more public entities and public employees, are as follows: (a) for any injury to one
person in any single occurrence, the sum of$350,000 for claims accruing before January 1, 2018 or the
sum of$387,000 for claims accruing on or after January 1, 2018; and (b) for an injury to two or more
persons in any single occurrence, the sum of$990,000 for claims accruing before January 1, 2018 or the
sum of$1,093,000 for claims accruing on or after January 1,2018,except in such instance,no person may
recover in excess of$350,000 for claims accruing before January 1,2018 or the sum of$387,000 for claims
accruing on or after January 1,2018. Suits against both the County and a public employee do not increase
such maximum amounts which may be recovered. The County may not be held liable either directly or by
indemnification for punitive or exemplary damages. In the event that the County is required to levy an ad
valorem property tax to discharge a settlement or judgment,such tax may not exceed a total often mills per
annum for all outstanding settlements or judgments.
The County may be subject to civil liability and may not be able to claim sovereign immunity for
actions founded upon various federal laws. Examples of such civil liability include,but are not limited to,
suits filed pursuant to 42 U.S.C. Section 1983 alleging the deprivation of federal constitutional or statutory
rights of an individual. In addition,the County may be enjoined from engaging in anti-competitive practices
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which violate the antitrust laws. However,the Governmental Immunity Act provides that it applies to any
action brought against a public entity or a public employee in any Colorado State court having jurisdiction
over any claim brought pursuant to any federal law, if such action lies in tort or could lie in tort.
Legal Representation
Legal matters relating to the execution and delivery of the Certificates,as well as the treatment of
the interest portion of payments made by the County under the Lease and received by Owners of the
Certificates for purposes of federal and State income taxation,are subject to the approving legal opinion of
Ballard Spahr LLP, Denver, Colorado,as special counsel. Such opinion will be dated as of and delivered
at closing in substantially the form set forth in "APPENDIX E—FORM OF SPECIAL COUNSEL
OPINION." Ballard Spahr LLP has also assisted in the preparation of this Official Statement in its capacity
as disclosure counsel to the County. Ballard Spahr LLP represents the Underwriter from time to time on
matters unrelated to the County or the Certificates. Ballard Spahr LLP does not represent the Underwriter
or any other party in connection with the execution and delivery of the Certificates. Bryan Treu,the County
Attorney, will also pass upon certain legal matters for the County. Butler Snow LLP, Denver, Colorado,
has acted as counsel to the Underwriter.
The legal opinions to be delivered concurrently with the delivery of the Certificates express the
professional judgment of the attorneys rendering the opinions as to legal issues expressly addressed therein.
By rendering a legal opinion, the opinion giver does not become an insurer or guarantor of the result
indicated by that expression of professional judgment, or of the transaction on which the opinion is
rendered, or of the future performance of parties to the transaction. Nor does the rendering of an opinion
guarantee the outcome of any legal dispute that may arise out of the transaction.
Pending and Threatened Litigation Involving the County
In connection with the execution and delivery of the Certificates,the County Attorney is expected
to render an opinion stating that, to the best of his actual knowledge, there is no action, suit, proceeding,
inquiry, or investigation pending in which the County is a party that would challenge the validity or the
execution and delivery of the Certificates.
The County, like similar governmental entities, is subject to a variety of suits and proceedings
arising in the ordinary course of business. Upon the execution and delivery of the Certificates,the County
will deliver a certificate to the effect that there is no litigation pending or threatened materially adversely
affecting the ability of the County to make the payments required under the Certificates, to enter into the
Lease or the Site Lease,and to secure the Certificates as provided in the Indenture.
Indenture to Constitute Contract
The Indenture provides that it constitute contracts among the Trustee and the Owners of the
Certificates,and that it will remain in full force and effect until the Certificates are no longer Outstanding.
TAX MATTERS
Federal Tax Matters
The Internal Revenue Code of 1986, as amended(the "Code"), contains a number of restrictions
and requirements that apply to the Certificates including,without limitation,(i)investment restrictions,(ii)
requirements for periodic payments of arbitrage profits to the United States, and (iii) rules regarding the
proper use of the proceeds of the Certificates and the facilities financed or refinanced with such proceeds.
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The County has covenanted to comply with all of the restrictions and requirements of the Code that must
be satisfied in order for the interest portion of payments made by the County under the Lease and received
by Owners of the Certificates (the "Certificate Interest Portion")to be and remain excludable from the
gross income of the owners thereof for federal income tax purposes(the"Tax Covenants").
In the opinion of Ballard Spahr LLP, Denver, Colorado, Special Counsel to the County, the
Certificate Interest Portion is excludable from gross income for purposes of federal income tax under
existing laws as enacted and construed on the date of initial delivery of the Certificates, assuming the
accuracy of the certifications of the County and continuing compliance by the County with the requirements
of the Code. The Certificate Interest Portion is not an item of tax preference for purposes of individual
federal alternative minimum tax.
In rendering its opinion, Special Counsel will rely on, and will assume the accuracy of, certain
representations and certifications,and compliance by the County with certain covenants,including the Tax
Covenants. Special Counsel will not independently verify the accuracy of the County's representations and
certifications. In addition, Special Counsel has not been engaged, and will not undertake, to monitor
compliance with the Tax Covenants or to inform any person as to whether the Tax Covenants are being
complied with; nor has Special Counsel undertaken to determine or to inform any person whether any
actions taken or not taken,or events occurring or not occurring,after the date of execution and delivery of
the Certificates may affect the federal tax status of the Certificate Interest Portion. Failure to comply with
certain of the Tax Covenants could result in the inclusion of the Certificate Interest Portion in the gross
income of the owners for federal income tax purposes, retroactive to the date of execution and delivery of
the Certificates.
Certain requirements and procedures contained or referred to in the Indenture and certain other
documents executed in connection with the execution and delivery of the Certificates may be changed and
certain actions(including,without limitation,defeasance of the Certificates)may be taken or omitted in the
future if a legal opinion is rendered at the time to the effect that such action will not cause the Certificate
Interest Portion to be included in the gross income of the owners for federal income tax purposes. The
opinion of Special Counsel rendered in connection with the initial execution and delivery of the Certificates
will not address any such actions.
Original Issue Discount. Certain of the Certificates may be offered at a discount("original issue
discount")equal generally to the difference between the public offering price and the principal portion of
payments made by the County under the Lease. For federal income tax purposes, original issue discount
on a Certificate accrues periodically over the term of the Certificate as interest with the same tax exemption
and alternative minimum tax status as regular interest. The accrual of original issue discount increases the
holder's tax basis in the Certificate for determining taxable gain or loss upon sale or redemption prior to
maturity. Holders should consult their tax advisers for an explanation of the accrual rules.
Original Issue Premium. Certain of the Certificates may be offered at a premium("original issue
premium")over the principal portion of payments made by the County under the Lease. For federal income
tax purposes, original issue premium is amortizable periodically over the term of such Certificate through
reductions in the holder's tax basis for such Certificate for determining taxable gain or loss upon sale or
redemption prior to maturity. Amortization of premium does not create a deductible expense or loss.
Holders should consult their tax advisors for an explanation of the amortization rules.
Special Counsel expresses no opinion regarding other federal tax consequences relating to
ownership or disposition of,or the accrual or receipt of the Certificate Interest Portion.
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Backup Withholding.
A person making payments of tax-exempt interest to a holder is generally required to make an
information report of the payments to the Internal Revenue Service and to perform "backup withholding"
from the interest if the holder does not provide an IRS Form W-9 to the payor."Backup withholding"means
that the payor withholds tax from the interest payments at the backup withholding rate,currently 24%.
Form W-9 states the holder's taxpayer identification number or basis of exemption from backup
withholding. If a holder purchasing a Certificate through a brokerage account has executed a Form W-9 in
connection with the account,as generally can be expected,there should be no backup withholding from the
Certificate Interest Portion.
If backup withholding occurs, it does not affect the excludability of the Certificate Interest Portion
from gross income for federal income tax purposes. Any amounts withheld pursuant to backup withholding
would be allowed as a refund or a credit against the owner's federal income tax once the required
information is furnished to the Internal Revenue Service.
State of Colorado Tax Matters
In the opinion of Special Counsel, under existing law, to the extent that the Certificate Interest
Portion is excludable from gross income for federal income tax purposes, such interest is also excludable
from gross income for State of Colorado income tax purposes and from the calculation of State of Colorado
alternative minimum taxable income. Special Counsel will express no opinion regarding other State or
local tax consequences arising with respect to the Certificates, including whether the Certificate Interest
Portion is exempt from taxation under the laws of any jurisdiction other than the State of Colorado.
No Further Opinion
Special Counsel expresses no opinion regarding any other tax consequences relating to ownership
or disposition of,or the accrual or receipt of interest on,the Certificates. Further,certain requirements and
procedures contained or referred to in the Lease and certain other documents executed in connection with
the execution and delivery of the Certificates may be changed and certain actions (including, without
limitation,defeasance of the Certificates)may be taken or omitted in the future if a legal opinion is rendered
at the time to the effect that such action will not cause the Certificate Interest Portion to be included in the
gross income of the owners for federal income tax purposes. The opinion of Special Counsel rendered in
connection with the initial execution and delivery of the Certificates will not address any such actions.
Special Counsel will express no opinion as to the effect that any termination of the County's obligations
under the Lease,under certain circumstances as provided in the Lease,may have on the treatment for federal
income tax purposes of any money received or paid under the Indenture subsequent to such termination.
General
The opinions expressed by Special Counsel are based upon existing legislation and regulations as
interpreted by relevant judicial and regulatory authorities as of the date of issuance and delivery of the
Certificates,and Special Counsel has expressed no opinion as of any date subsequent thereto or with respect
to any proposed or pending legislation,regulatory initiatives or litigation.
The foregoing is only a general summary of certain provisions of the Code as enacted and in effect
on the date hereof and does not purport to be complete;holders of the Certificates should consult their own
tax advisors as to the effects, if any, of the Code in their particular circumstances.
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See APPENDIX E hereto for the proposed form of Special Counsel Opinion.
RATING
Moody's Investors Service, Inc. ("Moody's") has assigned the Certificates a rating of"[ 1."
An explanation of the significance of such rating may be obtained from Moody's at 7 World Trade Center,
250 Greenwich Street,New York,New York 10007.
The rating reflects only the views of the rating agency,and there is no assurance that the rating will
remain in effect for any given period of time or that the rating will not be revised downward or withdrawn
entirely if, in the judgment of the rating agency, circumstances so warrant. Other than the County's
obligations under the Continuing Disclosure Agreement,the County has not undertaken any responsibility
to bring to the attention of the owners of the Certificates any proposed change in or withdrawal of such
rating once received or to oppose any such proposed revision. Any such change in or withdrawal of the
rating may have an adverse effect on the market price of the Certificates.
MISCELLANEOUS
Registration of Certificates
Registration or qualification of the offer and sale of the Certificates (as distinguished from
registration of the ownership of the Certificates)is not required under the federal Securities Act of 1933,as
amended, or the Colorado Securities Act, as amended, pursuant to exemptions from registration provided
in such acts. THE COUNTY ASSUMES NO RESPONSIBILITY FOR QUALIFICATION OR
REGISTRATION OF THE CERTIFICATES FOR SALE UNDER THE SECURITIES LAWS OF ANY
JURISDICTION IN WHICH THE CERTIFICATES MAY BE SOLD, ASSIGNED, PLEDGED,
HYPOTHECATED,OR OTHERWISE TRANSFERRED.
Interest of Certain Persons Named in this Official Statement
The legal fees to be paid to Special Counsel and counsel to the Underwriter are contingent upon
the sale and delivery of the Certificates.
Undertaking To Provide Ongoing Disclosure
Pursuant to the requirements of the Securities and Exchange Commission Rule 15c2-12(17 C.F.R.
Part 240, § 240.15c2-12) (the "Rule"), the County and the Dissemination Agent will enter into the
Continuing Disclosure Agreement for the benefit of the owners of the Certificates. The County has
covenanted in the Lease to comply with its terms, however, any failure by the County to comply with the
Continuing Disclosure Agreement will not constitute an Event of Lease Default. The Continuing
Disclosure Agreement will provide that so long as the Certificates remain outstanding, the County will
provide the following information to the Dissemination Agent for delivery to the MSRB for filing on its
EMMA system: (a) annually, certain financial information and operating data related to the County not
later than 210 days after the end of its fiscal year, commencing with the fiscal year ending December 31,
2021; and (b) notice of the occurrence of certain enumerated events; all as specified in the Continuing
Disclosure Agreement. The form of the Continuing Disclosure Agreement is attached hereto as
APPENDIX C. The County has previously entered into continuing disclosure certificates pursuant to the
requirements of the Rule. During the previous five years, with respect to its prior continuing disclosure
obligations, the County (i) did not timely file audited financial statements for its fiscal years ended
December 31, 2016, and December 31, 2017, (ii) did not timely file its annual operating data for its fiscal
years ended December 31, 2016, and December 31, 2017 and(iii) did not timely file quarterly reports for
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the Eagle County Air Terminal Corporation for the quarters ended June 30, 2016, September 30, 2016,
December 31, 2016, March 31, 2017, June 30, 2017, March 31, 2018, June 30, 2018 and December 31,
2018. In addition,the County did not file or timely file notice of its failure to provide the aforementioned
information on or before the date specified in its prior continuing disclosure obligations.
On July 30,2018,the County filed its annual operating data for its fiscal year ended December 31,
2017 (which was one day late). On April 15,2019,the County filed its audited financial statements for its
fiscal years ended December 31,2016 and December 31,2017 on EMMA. On April 29, 2019,the County
also filed a"Remedial Notice of Failure to File"on EMMA with respect to the filings made to remedy the
above-described late filings for its fiscal years ended December 31,2016 and December 31,2017.
The County has engaged Digital Assurance Certification, LLC(as previously defined, "DAC")to
act as dissemination agent for the Continuing Obligation Agreement to be entered into in connection with
the execution and delivery of the Certificates.
Independent Auditor
The audited financial statements of the County for the fiscal year ended December 31, 2020,
included in this Official Statement as "APPENDIX A—AUDITED FINANCIAL STATEMENTS FOR
THE COUNTY FOR THE FISCAL YEAR ENDED DECEMBER 31, 2020", have been audited by
McMahan and Associates,L.L.C.,Avon,Colorado,independent certified public accountants,(the"County
Auditor")as stated in their report appearing therein. The auditor has consented to the inclusion of its report
herein but has not performed any procedures or review related to this Official Statement.
Underwriting
The Certificates are being sold to the Underwriter for a purchase price equal to $
(which is equal to the principal amount of the Certificates, [plus/less[net]original issue discount/premium]
less the Underwriter's discount of $ ) pursuant to a purchase contract. See "USE OF
PROCEEDS AND DEBT SERVICE REQUIREMENTS—The Project—Estimated Sources and Uses of
Funds." Expenses associated with the execution and delivery of the Certificates are being paid by the
County from proceeds of the issue. The right of the Underwriter to receive compensation in connection
with this issue is contingent upon the actual sale and delivery of the Certificates. The Underwriter has
initially offered the Certificates at the prices or yields set forth on the inside cover page of this Official
Statement. Such prices or yields, as the case may be, may subsequently change without any requirement
of prior notice. The Underwriter reserves the right to join with dealers and other investment banking firms
in offering the Certificates.
The Underwriter and its respective affiliates are full-service financial institutions engaged in
various activities that may include securities trading, commercial and investment banking, municipal
advisory, brokerage, and asset management. In the ordinary course of business, the Underwriter and its
respective affiliates may actively trade debt and, if applicable, equity securities (or related derivative
securities)and provide financial instruments(which may include bank loans, credit support or interest rate
swaps). The Underwriter and its respective affiliates may engage in transactions for their own accounts
involving the securities and instruments made the subject of this securities offering or other offering of the
Issuer. The Underwriter and its respective affiliates may make a market in credit default swaps with respect
to municipal securities in the future. The Underwriter and its respective affiliates may also communicate
independent investment recommendations,market color or trading ideas and publish independent research
views in respect of this securities offering or other offerings of the Issuer.
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Additional Information
Copies of statutes, resolutions, opinions, contracts, agreements, financial and statistical data, and
other related reports and documents described in this Official Statement are either publicly available or
available upon request and the payment of a reasonable copying, mailing, and handling charge from the
sources noted in the Introduction hereto.In addition,certain financial information of the County is available
on its website(https://www.eaglecounty.us/).However,none of such material is deemed incorporated into,
or otherwise a portion of,this Official Statement.
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Official Statement Certification
The preparation of this Official Statement and its distribution has been authorized by the Board.
This Official Statement is hereby duly approved by.the Board as of the date on the cover page hereof. This
Official Statement is not to be construed as an agreement or contract between the County and the purchasers
or owners of any Certificate.
EAGLE COUNTY,COLORADO
By:/s/
Matt Scherr
Chair of the Board of County Commissioners
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APPENDIX A
AUDITED FINANCIAL STATEMENTS FOR THE COUNTY FOR
THE FISCAL YEAR ENDED DECEMBER 31,2020
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APPENDIX B
FORMS OF THE SITE LEASE,
THE LEASE,AND THE INDENTURE
(attached)
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APPENDIX C
FORM OF CONTINUING DISCLOSURE AGREEMENT
(attached)
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APPENDIX D
ECONOMIC AND DEMOGRAPHIC INFORMATION
The following information was prepared and provided by Development Research Partners, Inc.to
give prospective investors general information concerning selected economic and demographic conditions
existing in Eagle County, Colorado. The statistics have been obtained from the referenced sources and
represent the most current information available as of June 2021 from the sources indicated;however,since
certain information is released with a significant time lag, the information in some cases will not be
indicative of existing or future economic and demographic conditions. Further,the reported data has not
been adjusted to reflect economic trends, notably inflation. Finally, other economic and demographic
information not presented herein may be available concerning the County and prospective investors may
want to review such information prior to making their investment decision. The following information is
not to be relied upon as a representation or guarantee of the County or its officers,employees,or advisors.
Overview
Colorado (the "State"), the most populous state in the Rocky Mountain region, has three distinct
geographic and economic areas. The eastern half of the State consists of the eastern plains,which are flat,
open, and largely devoted to agriculture. The Front Range lies along the eastern base of the Rocky
Mountains and contains most of the State's metropolitan areas. The western half of the State — which
includes the Rocky Mountains and the Western Slope — includes many acres of national park and forest
land and significant reserves of minerals,natural gas,and other resources.
The State's population and wealth are concentrated in the Front Range, principally in four major
metropolitan areas: Fort Collins/Greeley, Denver/Boulder, Colorado Springs, and Pueblo. This report
presents data for Eagle County, which is not included in any metropolitan statistical area. Eagle County
represents 1% of the State's population and 1.2% of its jobs. Top industries in the region include
hospitality-related operations,health care,and government. The region is known for its resort communities,
with 20.1% of its employees working in the accommodation and food service industry. The next largest
industries are retail trade(11.5%)and construction(10.8%).
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Population
The following table sets forth population statistics for Eagle County,the State,and the United States
(the"U.S.").
Population Estimates(as of July 1)
Eagle County Colorado United States
Population Change Population Change Population Change
1990 21,928 -- 3,294,473 -- 249,464,396 --
2000 43,288 97.4% 4,338,801 31.7% 282,162,411 13.1%
2010 52,057 20.3 5,050,332 16.4 309,327,143 9.6
2011 52,023 -0.1 5,124,143 1.5 311,583,481 0.7
2012 52,303 0.5 5,195,972 1.4 313,877,662 0.7
2013 52,787 0.9 5,272,662 1.5 316,059,947 0.7
2014 53,250 0.9 5,352,288 1.5 318,386,329 0.7
2015 53,837 1.1 5,453,996 1.9 320,738,994 0.7
2016 54,529 1.3 5,542,211 1.6 323,071,755 0.7
2017 54,905 0.7 5,615,732 1.3 325,122,128 0.6
2018 54,891 0.0 5,696,897 1.4 326,838,199 0.5
2019 55,070 0.3 5,763,976 1.2 328,329,953 0.5
Source:U.S.Census Bureau,Decennial Census;Colorado Division of Local Government,State
Demography Office;U.S.Census Bureau,Population Estimates Program.
Income
The following tables set forth historical median household income and per capita personal income
for Eagle County,the State,and the U.S.
Median Household Income
Eagle County Colorado United States
Income Change Income Change Income Change
2014 $73,774 -- $59,448 -- $53,482 --
2015 72,214 -2.1% 60,629 2.0% 53,889 0.8%
2016 78,763 9.1 62,520 3.1 55,322 2.7
2017 83,803 6.4 65,458 4.7 57,652 4.2
2018 84,685 1.1 68,811 5.1 60,293 4.6
2019 84,790 0.1 72,331 5.1 62,843 4.2
Source:U.S.Census Bureau,American Community Survey,5-Year Estimates.
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Per Capita Personal Income in Current Dollars'
Eagle County Colorado United States
0/0
Income Change Income Change Income Change
2014 $60,912 -- $50,687 -- $47,058 --
2015 66,523 9.2% 52,219 3.0% 49,003 4.1%
2016 68,598 3.1 52,431 0.4 49,995 2.0
2017 73,923 7.8 55,550 5.9 52,096 4.2
2018 82,342 11.4 58,836 5.9 54,581 4.8
2019 84,765 2.9 61,159 3.9 56,474 3.5
'Per capita personal income is total personal income divided by the July 1 population
estimate.
Source:U.S.Bureau of Economic Analysis.
School Enrollment
The following table presents a multi-year history of public school enrollment for the school district
serving Eagle County.
School District Historical Enrollment'
Eagle County School District
No.RE-50
Enrollment %Change
2014-15 6,713 --
2015-16 6,804 1.4%
2016-17 6,901 1.4
2017-18 6,931 0.4
2018-19 6,874 -0.8
2019-20 6,812 -0.9
2020-21 6,699 -1.7
'Eagle County is served by one school district,as
listed above.
Note:Enrollment reflects grades pre-kindergarten
through 12.
Source:Colorado Department of Education.
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Housing Stock
The following table sets forth a comparison of housing units within Eagle County, the State, and
the U.S.
Housing Units(as of July 1)
Eagle County Colorado United States
Units Change Units Change Units Change
2010 31,329 -- 2,218,698 -- 131,832,419 --
2011 31,394 0.2% 2,230,493 0.5% 132,319,862 0.4%
2012 31,443 0.2 2,242,975 0.6 132,832,760 0.4
2013 31,525 0.3 2,265,392 1.0 133,522,850 0.5
2014 31,628 0.3 2,291,806 1.2 134,349,725 0.6
2015 31,872 0.8 2,320,695 1.3 135,227,835 0.7
2016 32,051 0.6 2,349,438 1.2 136,201,325 0.7
2017 32,514 1.4 2,386,170 1.6 137,259,144 0.8
2018 32,866 1.1 2,426,935 1.7 138,391,688 0.8
2019 33,296 1.3 2,467,730 1.7 139,553,076 0.8
Source:Colorado Division of Local Government,State Demography Office;U.S.Census
Bureau,Annual Estimates of Housing Units.
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Residential Building Permit Activity
The following tables set forth a multi-year history of building permit activity and valuation for
Eagle County,the State,and the U.S.
Single-Family Detached Building Permit Activity
Eagle County Colorado United States
Permits Valuation Permits Valuation Permits Valuation
2015 162 $143,974,590 20,025 $5,993,814,000 695,998 $166,276,879,000
2016 190 140,797,881 21,577 6,675,789,000 750,796 182,207,413,000
2017 304 122,753,697 24,338 7,439,961,000 819,976 200,599,885,000
2018 263 90,699,012 26,134 7,879,399,000 855,332 210,849,975,000
2019 156 92,007,911 24,756 7,652,182,000 862,084 213,271,117,000
2020 151 118,132,718 26,636 8,289,036,000 979,360 243,423,623,000
20211 n/a n/a 8,781 2,685,239,000 275,817 70,527,175,000
Single-Family Attached Building Permit Activity
Eagle County Colorado United States
•
Permits Valuation Permits Valuation Permits Valuation
2015 -- $ -- 621 $119,560,000 32,077 $4,050,332,000
2016 23 3,943,420 798 152,010,000 34,782 4,545,080,000
2017 19 3,330,006 759 131,687,000 37,195 5,095,918,000
2018 53 8,970,485 788 148,896,000 39,696 5,608,216,000
2019 105 20,851,672 722 120,231,000 42,593 6,204,254,000
2020 63 16,670,539 1,125 192,694,000 47,242 6,596,671,000
20211 n/a n/a 296 67,242,000 12,216 1,758,966,000
Multi-Family Building Permit Activity
Eagle County Colorado United States
Permits Valuation Permits Valuation Permits Valuation
2015 26 $ 5,700,000 11,225 $1,419,245,000 454,507 $53,284,109,000
2016 133 15,761,864 16,599 2,101,098,000 421,064 50,349,112,000
2017 103 13,961,112 15,576 1,953,459,000 424,806 52,809,615,000
2018 66 15,091,170 15,705 2,202,245,000 433,799 54,661,351,000
2019 369 96,819,248 13,155 1,865,632,000 481,371 61;058,823,000
2020 189 16,833,300 12,708 1,784,811,000 444,539 57,189,609,000
2021' n/a n/a 4,019 536,482,000 118,471 15,213,762,000
'Building permits through first quarter of 2021.No data available for Eagle County.
Notes:Single-Family Attached includes 2 family units and 3-4 family units.Multi-Family includes 5+units.
•
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Home Price Index
The following table provides the Federal Housing Finance Agency("FHFA")House Price Index
("HPI")for Colorado Nonmetropolitan Areas,the State,and the U.S. According to the FHFA,U.S.home
prices continued to appreciate over the last 12 months. The HPI, covering all nine U.S. census divisions,
rose 2.2% from the fourth quarter of 2020 to the first quarter of 2021. Between the first quarters of 2020
and 2021,house prices were up 7.2%.
Federal Housing Finance Agency House Price Index'
Colorado
Nonmetropolitan
Areas Colorado United States
Index Change Index Change Index Change
1Q 2020 286.69 -- 594.66 -- 451.67 --
2Q 2020 290.48 1.3% 601.78 1.2% 456.22 1.0%
3Q 2020 294.26 1.3 611.45 1.6 464.31 1.8
4Q 2020 300.46 2.1 623.53 2.0 474.06 2.1
1Q 2021 307.24 2.3 638.94 2.5 484.32 2.2
YOY 7.2% 7.4% 7.2%
1Data represents all-transactions House Price Index,which includes purchases and
refinance mortgages.
Note:The HPI is a broad measure of the movement of single-family house prices in the
United States. The HPI is a weighted,repeat-sales index,meaning that it measures
average price changes in repeat sales or refinancings on the same properties. This
information is obtained by reviewing repeat mortgage transactions on single-family
properties whose mortgages have been purchased or securitized by Fannie Mae or
Freddie Mac since January 1975.
Source:Federal Housing Finance Agency.
Data is available quarterly for metropolitan and nonmetropolitan statistical areas. According to the
FHFA,home prices rose in 99 of the 100 largest MSAs in the U.S.over the last four quarters. Annual price
increases were greatest in Boise, Idaho where prices increased by 28.2%. Prices were weakest in Urban
Honolulu,HI where they fell by 0.7%.
Eagle County is included in the nonmetropolitan area of the state. Home prices increased 7.2%in
the first quarter of 2021 compared to the same period in 2020.
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Foreclosure Activity
The following table provides a multi-year history of foreclosure filings in Eagle County,the State,
and the U.S. The foreclosure filing is the event that begins the foreclosure process. In general,a borrower
who is at least three months delinquent will receive a filing notice from the Public Trustee for the county
in which the property is located. At this point,the property is in foreclosure.
Because a foreclosure filing can be cured or withdrawn before the home is sold at auction, not all
filings result in foreclosure sales. Foreclosure sales at auction generally proceed between 110 and 125 days
after the initial filing. Once a foreclosure sale is completed,the eviction process begins.
Foreclosure Filings'
Eagle County Colorado United States
Number of Number of Number of
Foreclosures % Foreclosures % Foreclosures
Filed Change Filed Change Filed Change
2014 110 -- 11,235 -- 1,117,426 --
2015 82 -25.5% 8,241 -26.6% 1,083,572 -3.0%
2016 68 -17.1 7,666 -7.0 933,045 -13.9
2017 58 -14.7 6,680 -12.9 676,535 -27.5
2018 54 -6.9 5,884 -11.9 624,753 -7.7
2019 51 -5.6 5,610 -4.7 493,006 -21.1
2020 26 -49.0 2,130 -62.0 214,323 -56.5
20212 1 -- 226 -- 33,699 --
'Some filings may have been subsequently cured or withdrawn and did not result in a sale at auction.
2Filings through first quarter 2021 for all geographies.
Source:Colorado Division of Housing;Eagle County Public Trustee.
According to the Colorado Division of Housing, foreclosure filings in Colorado in 2020 totaled
2,130, a 62% decline from 2019. Foreclosure sales at auction totaled 628 in 2020, a decrease of 52.3%
from 2019.
During the first quarter of 2021, Colorado public trustees reported 226 foreclosure filings and 103
sales at auction(completed foreclosures). During the first quarter of 2020,there were 1,397 filings and 307
sales. Comparing the first quarter of 2021 to the first quarter of 2020, foreclosure filings fell 7.1% and
foreclosure sales fell 16.8%.
The decline in foreclosures in 2020 and 2021 was due to the foreclosure moratorium in effect in
Colorado from April 20, 2020 to July 13, 2020 due to the COVID-19 pandemic. Further, the Biden
Administration extended the federal foreclosure moratorium to June 30, 2021, which is expected to cover
70 percent of existing single-family home mortgages.
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Retail Activity
The retail trade sector employs a large portion of the area's workforce and is important to the area's
economy. The following table provides total retail sales activity in Eagle County and the State,as reported
for state sales tax purposes.
Total Retail Sales($000s)
Eagle County Colorado
Retail Sales Change Retail Sales Change
2014 $2,428,964 -- $182,709,978 --
2015 2,507,049 3.2% 182,845,280 0.1%
2016 2,580,174 2.9 184,703,410 1.0
2017 2,623,903 1.7 194,641,958 5.4
2018 2,790,425 6.3 206,121,045 5.9
2019 3,048,212 9.2 224,618,938 9.0
2020 3,246,485 6.5 228,812,220 1.9
2021' 1,002,422 -- 56,470,494 --
'Retail sales data through first quarter of 2021.
Source:State of Colorado,Department of Revenue,Sales Tax Statistics.
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Employment
The following table sets forth employment statistics by industry for Eagle County. Industry
designations are based on the North American Industrial Classification System. Employment includes only
those workers covered by unemployment insurance;most workers in the state are covered.
Average Annual Number of Employees by Industry—Eagle County
Absolute
Industry' 2019 2020 Change %Change
Private Sector
Agriculture,Forestry,Fishing,and Hunting 69 63 -6 -8.7%
Mining 24 27 3 12.5
Utilities 66 71 5 7.6
Construction 3,313 3,276 -37 -1.1
Manufacturing 376 345 -31 -8.2
Wholesale Trade 435 381 -54 -12.4
Retail Trade 3,673 3,481 -192 -5.2
Transportation and Warehousing 775 599 -176 -22.7
Information 250 200 -50 -20.0
Finance and Insurance 488 478 -10 -2.0
Real Estate and Rental and Leasing 1,706 1,526 -180 -10.6
Professional and Technical Services 1,399 1,454 55 3.9
Management of Companies and Enterprises 112 110 -2 -1.8
Administrative and Waste Services 2,646 2,398 -248 -9.4
Educational Services 307 256 -51 -16.6
Health Care and Social Assistance 2,564 2,652 88 3.4
Arts,Entertainment,and Recreation 3,417 2,608 -809 -23.7
Accommodation and Food Services 7,877 6,074 -1,803 -22.9
Other Services 1,031 1,018 -13 -1.3
Unclassified ** ** - -
Government 3,400 3,257 -143 -4.2
Total' 33,932 30.272 0 -10.8%
'Information provided herein reflects only those employers who are subject to State unemployment insurance law.
2lndustry data may not add to all-industry total due to rounding,suppressed data,and employment that cannot be
assigned to an industry.
Source:Colorado Department of Labor and Employment,Labor Market Information,Quarterly Census of Employment
and Wages(QCEW).
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The following table provides labor force and unemployment statistics for Eagle County,the State,
and the U.S.
Labor Force Estimates
Eagle County Colorado United States
Labor Unemploy- Labor Unemploy- Labor Unemploy-
Force ment Rate Force ment Rate Force ment Rate
2014 32,381 4.2% 2,800,666 5.0% 155,922,000 6.2%
2015 32,755 3.0 2,825,761 3.7 157,130,000 5.3
2016 33,733 2.6 2,894,157 3.1 159,187,000 4.9
2017 34,737 2.2 2,982,495 2.6 160,320,000 4.4
2018 36,036 2.5 3,071,396 3.0 162,075,000 3.9
2019 36,622 2.2 3,126,120 2.7 163,539,000 3.7
2020 35,708 9.5 3,122,237 7.3 160,742,000 8.1
2021' 37,055 5.5 3,168,704 6.7 159,880,000 6.5
'Data through first quarter of 2021.
Source:U.S.Bureau of Labor Statistics.
The following table sets forth the major employers in Eagle County as of June 2021. No
independent investigation has been made,and no representation is made herein as to the financial condition
of the employers listed below or the likelihood that these employers will maintain their status as major
employers in the area. Employment counts for these businesses may have changed since this table was
compiled,and other large employers may exist in the area that are not included in the table.
Major Non-Retail Employers in Eagle County
Estimated
Rank Employer Product or Service Employees'
1 Vail Resorts Hospitality 5,190
2 Eagle County School District RE-50J Public Education 1,000
3 Vail Health Healthcare 990
4 Eagle County Government 490
5 East West Resorts Hospitality 450
6 Sonnenalp Resort Hospitality 400
7 Westin Riverfront Resort Hospitality 400
8 Eagle County Regional Airport Aviation 360
9 Town of Vail Government 350
10 Grand Hyatt Vail Hospitality 190
11 Park Hyatt Beaver Creek Resort&Spa Hospitality 190
12 Town of Avon Government 160
13 Colorado Mountain College Education 150
13 All Points North Lodge Mental Health Treatment 150
15 The Ritz-Carlton,Bachelor Gulch Hospitality 90
'Figures include full-and part-time employees
Source:Eagle County Government;Individual employers of Eagle County&Vail Valley Economic Development;U.S.
Bureau of Labor Statistics;Colorado Department of Labor and Employment;Development Research Partners,June 2021.
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APPENDIX E
FORM OF SPECIAL COUNSEL OPINION
[To be attached]
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APPENDIX F
BOOK-ENTRY-ONLY SYSTEM
The information in this section concerning The Depository Trust Company ("DTC') New York,
New York and DTC's book-entry-only system has been obtained from DTC, and the County and
Underwriter take no responsibility for the accuracy thereof
DTC will act as securities depository for the Certificates. The Certificates will be issued as fully-
registered securities registered in the name of Cede&Co.(DTC's partnership nominee)or such other name
as may be requested by an authorized representative of DTC. One fully-registered certificate will be issued
for the Certificates,as set forth on the cover page hereof,in the aggregate principal amount of each maturity
of the Certificates and deposited with DTC.
DTC,the world's largest securities depository,is a limited-purpose trust company organized under
the New York Banking Law,a"banking organization"within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a"clearing corporation" within the meaning of the New York
Uniform Commercial Code, and a"clearing agency"registered pursuant to the provisions of Section 17A
of the Securities Exchange Act of 1934. DTC holds and provides asset servicing for over 3.5 million issues
of U.S. and non U.S. equity issues, corporate and municipal debt issues, and money market instruments
(from over 100 countries)that DTC's participants ("Direct Participants") deposit with DTC. DTC also
facilitates the post trade settlement among Direct Participants of sales and other securities transactions in
deposited securities, through electronic computerized book-entry transfers and pledges between Direct
Participants' accounts. This eliminates the need for physical movement of securities certificates. Direct
Participants include both U.S.and non U.S.securities brokers and dealers,banks,trust companies,clearing
corporations and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust
&Clearing Corporation("DTCC"). DTCC is the holding company for DTC,National Securities Clearing
Corporation and Fixed Income Clearing Corporation,all of which are registered clearing agencies. DTCC
is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others
such as both U.S. and non U.S. securities brokers and dealers, banks, trust companies and clearing
corporations that clear through or maintain a custodial relationship with a Direct Participant,either directly
or indirectly("Indirect Participants"). DTC has a Standard & Poor's rating of AA+. The DTC Rules
applicable to its Participants are on file with the Securities and Exchange Commission. More information
about DTC can be found at www.dtcc.com.
Purchases of the Certificates under the DTC system must be made by or through Direct Participants,
which will receive a credit for the Certificates on DTC's records. The ownership interest of each actual
purchaser of each Certificate ("Beneficial Owner") is in turn to be recorded on the Direct and Indirect
Participants'records. Beneficial Owners will not receive written confirmation from DTC of their purchase.
Beneficial Owners are, however, expected to receive written confirmations providing details of the
transaction,as well as periodic statements of their holdings,from the Direct or Indirect Participant through
which the Beneficial Owner entered into the transaction. Transfers of ownership interests in the Certificates
are to be accomplished by entries made on the books of Direct and Indirect Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests
in the Certificates,except in the event that use of the book entry-system for the Certificates is discontinued.
To facilitate subsequent transfers, all 2019 Certificates deposited by Direct Participants with DTC
are registered in the name of DTC's partnership nominee, Cede & Co., or such other name as may be
requested by an authorized representative of DTC. The deposit of 2019 Certificates with DTC and their
registration in the name of Cede&Co. or such other DTC nominee do not effect any change in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of 2019 Certificates; DTC's records
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reflect only the identity of the Direct Participants to whose accounts such 2019 Certificates are credited,
which may or may not be the Beneficial Owners. The Direct and Indirect Participants remain responsible
for keeping accounts of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants and by Direct Participants and Indirect Participants to Beneficial
Owners will be governed by arrangements among them,subject to any statutory or regulatory requirements
as may be in effect from time to time. Beneficial Owners of the Certificates may wish to take certain steps
to augment the transmission to them of notices of significant events with respect to the Certificate,such as
redemptions, tenders, defaults, and proposed amendments to the Certificate documents. For example,
Beneficial Owners of the Certificates may wish to ascertain that the nominee holding the Certificates for
their benefit has agreed to obtain and transmit notices to Beneficial Owners. In the alternative,Beneficial
Owners may wish to provide their names and addresses to the registrar and request that copies of notices
be provided directly to them.
Redemption notices will be sent to DTC. If less than all of the Certificates within an issue are being
redeemed, DTC's practice is to determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.
Neither DTC nor Cede &Co. (nor any other DTC nominee) will consent or vote with respect to
2019 Certificates unless authorized by a Direct Participant in accordance with DTC's MMI Procedures.
Under its usual procedures,DTC mails an Omnibus Proxy to the County as soon as possible after the record
date. The Omnibus Proxy assigns Cede&Co.'s consenting or voting rights to those Direct Participants to
whose accounts the Certificates are credited on the record date (identified in a listing attached to the
Omnibus Proxy).
Redemption proceeds, distributions, and dividend payments on the Certificates are to be made to
Cede&Co.,or such other nominee as may be requested by an authorized representative of DTC. DTC's
practice is to credit Direct Participants' accounts upon DTC's receipt of funds and corresponding detail
information from the County or Trustee,on payable date in accordance with their respective holdings shown
on DTC's records. Payments by Participants to Beneficial Owners will be governed by standing
instructions and customary practices, as is the case with securities held for the accounts of customers in
bearer form or registered in"street name,"and will be the responsibility of such Participant and not of DTC,
the Trustee Agent or County, subject to any statutory or regulatory requirements as may be in effect from
time to time. Payment of redemption proceeds, distributions, and dividend payments to Cede & Co. (or
such other nominee as may be requested by an authorized representative of DTC) is the responsibility of
the County or the Trustee Agent, disbursement of such payments to Direct Participants will be the
responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the
responsibility of Direct and Indirect Participants.
A Beneficial Owner shall give notice to elect to have its 2019 Certificates purchased or tendered,
through its Participant,to Tender or Remarketing Agent,and shall effect delivery of such 2019 Certificates
by causing the Direct Participant to transfer the Participant's interest in the Certificates,on DTC's records,
to Tender or Remarketing Agent. The requirement for physical delivery of the Certificates in connection
with an optional tender or a mandatory purchase will be deemed satisfied when the ownership rights in the
Certificates are transferred by Direct Participants on DTC's records and followed by a book-entry credit
for tendered 2019 Certificates to Tender or Remarketing Agent's DTC account.
DTC may discontinue providing its services as securities depository with respect to the Certificates
at any time by giving reasonable notice to the County or the Trustee Agent. Under such circumstances,in
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the event that a successor securities depository is not obtained, Certificates are required to be printed and
delivered.
The County may decide to discontinue use of the system of book entry only transfers through DTC
(or a successor securities depository). In that event,certificates will be printed and delivered to DTC.
The information in this section concerning DTC and DTC's book-entry system that has been
obtained from sources that the County believes to be reliable,but the County takes no responsibility for the
accuracy thereof.
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