HomeMy WebLinkAboutORDINANCE 02-25ORDINANCE NO. 02-25
AN ORDINANCE OF THE TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE,
AUTHORIZING THE EXECUTION AND DELIVERY OF A LOAN
AGREEMENT BETWEEN THE COLORADO WATER RESOURCES
AND POWER DEVELOPMENT AUTHORITY AND THE TOWN OF
ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE; AUTHORIZING THE ISSUANCE OF A
GOVERNMENTAL AGENCY BOND TO THE AUTHORITY BY THE
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH
ITS WATER ACTIVITY ENTERPRISE, IN THE AGGREGATE
PRINCIPAL AMOUNT NOT TO EXCEED $5,000,000 AND WITH THE
PRINCIPAL AMOUNT OF UP TO $1,500,000 TO BE FORGIVEN BY
THE AUTHORITY, EVIDENCING THE SPECIAL AND LIMITED
OBLIGATION OF THE TOWN OF ESTES PARK, COLORADO, ACTING
BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, UNDER THE
LOAN AGREEMENT AND SAID BOND; SPECIFYING THE MAXIMUM
NET EFFECTIVE INTEREST RATE OF SAID BOND AND
PRESCRIBING OTHER DETAILS IN CONNECTION THEREWITH; AND
PROVIDING OTHER MATTERS PROPERLY RELATING THERETO
WHEREAS, pursuant to Ordinance No. 8-99, the Town of Estes Park, Colorado
(the "Town") has established the Town of Estes Park, Water Activity Enterprise (the
"Enterprise") as an enterprise of the Town within the meaning of Section 20 of Article X
of the Colorado Constitution, and also authorized the Enterprise to operate the municipal
water system of the Town (the "System") as a water activity enterprise pursuant to part 1
of article 45.1 of title 37, Colorado Revised Statutes (the "Act"); and
WHEREAS, the Town, acting by and through the Enterprise, has made application
to the Colorado Water Resources and Power Development Authority (the "Authority") for
a loan to finance a portion of a project that consists of replacing older water pipes and
installing new fire hydrants in the Carriage Hills area and making improvements to the
former Spruce Knob water system (collectively, the "Project"); and
WHEREAS, the Authority has accepted such application and has expressed its
interest in making such loan subject to certain conditions; and
WHEREAS, there has been presented to the Board of Trustees of the Town (the
"Board"), acting as the governing body of the Enterprise, at this meeting a form of Loan
Agreement (the "Loan Agreement"), between the Authority and the Town, acting by and
through the Enterprise, and a form of Bond (as hereinafter defined) of the Town, acting
by and through the Enterprise; and
WHEREAS, the Loan Agreement provides for the issuance by the Town, acting by
and through the Enterprise, of a Governmental Agency Bond in the principal amount not
4872-6734-6663.3
exceeding $5,000,000 (the "Bond"), evidencing the special and limited obligation of the
Town, acting by and through the Enterprise, under the Loan Agreement, but with the
principal amount of up to $1,500,000 to be forgiven by the Authority as provided in the
Loan Agreement; and
WHEREAS, pursuant to the said Ordinance No. 8-99 and pursuant to
Section 37-45.1-103(4) and Section 37-45.1-104 of the Act and part 4 of article 35 of title
31, Colorado Revised Statutes, the Board, acting as the governing body of the Enterprise,
is authorized to issue revenue bonds, such as the Bond; and
WHEREAS, the Loan Agreement and the Bond shall constitute Additional Bonds
as defined in the Loan Agreement dated as of June 1 , 2008 (the "2008 Loan Agreement"),
between the Authority and the Town, acting by and through the Enterprise, as evidenced
by the Governmental Agency Bond dated June 12, 2008 (the "2008 Bond"), issued by the
Town, acting by and through the Enterprise, to the Authority, and the Loan Agreement
and the Bond shall be secured as to the Net Revenue (as defined in the Loan Agreement)
in parity with the 2008 Bond;and
WHEREAS, the Loan Agreement and the Bond shall constitute Parity Obligations
as defined in Ordinance No. 02-20, adopted by the Board, acting as the governing body
of the Enterprise, authorizing the issuance by the Town, acting by and through the
Enterprise, of its Water Revenue Bond, Series 2020 (the "Series 2020 Bond"), to the
United States of America acting through the Department of Agriculture ("USDA"), and the
Loan Agreement and the Bond shall be secured as to the portion of the Net Revenue (as
defined in the Loan Agreement) pledged to pay the Series 2020 Bond, in parity with the
Series 2020 Bond; and
WHEREAS, the Loan Agreement and the Bond shall constitute Additional Parity
Obligations as defined in the Construction Loan Agreement dated as of October 11, 2022
(the "2022 Loan Agreement"), between the Town, acting by and through the Enterprise,
and CoBank, ACB ("CoBank"), as evidenced by the Construction Loan Note (Prospect
Mountain Water Distribution Project), Series 2022A, dated October 11 , 2022 (the "2022
Construction Loan Note"), issued by the Town, acting by and through the Enterprise, to
CoBank, and the Loan Agreement and the Bond shall be secured as to the Net Revenue
(as defined in the Loan Agreement) in parity with the 2022 Construction Loan Note; and
WHEREAS, the Board, acting as the governing body of the Enterprise, desires to
approve the forms of the said documents, authorize the execution thereof, and authorize
the issuance of the Bond.
BE IT ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES
PARK, COLORADO, ACTING AS THE GOVERNING BODY OF ITS WATER ACTIVITY
ENTERPRISE:
1. The forms of the Loan Agreement and the Bond, setting forth inter alia the
terms, conditions and details of the Bond and the procedures relating thereto, are
incorporated herein by reference and are hereby approved; and the Town, acting by and
4872-6734-6663.3
through the Enterprise, shall enter into the Loan Agreement and deliver the Bond, and
perform its obligations thereunder, in substantially the forms presented at this meeting
with only such changes as are not inconsistent herewith and as are approved by the Town
Attorney and bond counsel for the Enterprise to effectuate the intentions of the parties or
to comply with applicable law.
2. The Mayor or Mayor Pro Tem of the Town, acting as members of the
governing body of the Enterprise, are hereby authorized and directed to execute, and the
Town Clerk or any deputy are authorized to authenticate and affix the seal of the Town
to, the Loan Agreement and the Bond, and further to execute and authenticate such other
documents, instruments or certificates as are deemed necessary or desirable in
connection therewith. Such documents are to be executed in substantially the form
hereinabove approved, provided that such documents may be completed, corrected or
revised as deemed necessary by the parties thereto in order to carry out the purposes of
this Ordinance. The execution of any instrument by said officials shall be conclusive
evidence of the approval by the Town, acting by and through the Enterprise, of such
instrument in accordance with the terms of such instrument and this Ordinance. The
approval given in this Section 2 includes the authority to execute, authenticate, and affix
the seal of the Town to such other documents, instruments and certificates deemed
necessary to make any insignificant additions or deletions, or to correct any insignificant
errors or omissions, to the documents authorized herein after the issuance and delivery
of the Loan Agreement and the Bond.
3. The Board hereby approves the Project and, for the purpose of providing
funds for the Project, the Town, acting by and through the Enterprise, shall issue the Bond
to the Authority in the principal amount not to exceed $5,000,000, but with the principal
amount of up to $1 ,500,000 to be forgiven by the Authority, and with a maturity date not
later than twenty-five years from its date of issue. The Bond shall be sold to the Authority
for a purchase price of not less than 100% of the par amount of the Bond, and the Bond
shall be dated, mature or be payable at such time or times and be subject to prior
redemption in advance of maturity as provided in the form attached to the Loan
Agreement as Exhibit D. The maximum net effective interest rate of the Bond shall not
exceed the sum of: (a) 3.25% as the rate attributable to the repayment of the amount of
the Loan (as defined in the Loan Agreement); (b) the rate attributable to the amount of
the Administrative Fee, if any (as provided in the Loan Agreement); (c) the rate
attributable to the amount of any late charges imposed pursuant to Section 3.03(d) of the
Loan Agreement; and (d) the rate attributable to any amounts owed to the Authority
pursuant to Section 3.03(e) of the Loan Agreement. The Bond shall be issued in
accordance with and under the authority of the Act, part 4 of article 35 of title 31, Colorado
Revised Statutes, the Constitution of the State of Colorado, and all other laws of the State
of Colorado thereunto enabling.
4. Neither the Loan Agreement nor the Bond shall be a general obligation of
the Town or of the Enterprise and shall not constitute a debt or indebtedness of the Town
or the Enterprise within the meaning of any constitutional or statutory limitation, nor shall
the Loan Agreement or the Bond ever constitute a multiple-fiscal year financial obligation
of the Town or a charge against the Town's general credit or taxing power. The Loan
4872-6734-6663.3
Agreement and the Bond shall be payable solely from the Pledged Property, as defined
in the Loan Agreement, and shall not be secured by any covenant to levy taxes. Neither
the Authority nor any holder of the Bond may compel the exercise of the Town's ad
valorem property taxation powers.
5. The Board elects to apply all of the provisions of the Supplemental Public
Securities Act, part 2 of article 57 of title 11, Colorado Revised Statutes (the
"Supplemental Act"), to the Loan Agreement and the Bond. Pursuant to Section 11-57-
205 of the Supplemental Act, the Board hereby delegates to the Mayor, the Town
Administrator or the Finance Director of the Town, acting by and through the Enterprise,
the authority to determine (a) the initial rate of interest on the Bond, (b) the total principal
amount of the Bond, (c) the amount of principal maturing in each year, (d) the dates on
which principal of and interest on the Bond shall be paid, and (e) any other detail of the
Bond necessary to be determined by any of such officials, as authorized by the
Supplemental Act, all of which shall be subject to the parameters and restrictions
contained in this Ordinance.
6. The revenues pledged to pay the Loan Agreement and the Bond shall be
governed by Section 11-57-208, Colorado Revised Statutes, and shall immediately be
subject to the lien of such pledge without any physical delivery, filing or further act. The
lien of such pledge shall be in parity with the lien thereon of the 2008 Bond and the lien
on the portion of the Net Revenue pledged to pay the Series 2020 Bond and the lien on
the Net Revenue pledged to pay the 2022 Construction Loan Note, and otherwise shall
have priority over any or all other obligations and liabilities of the Town or the Enterprise.
The lien of such pledge shall be valid, binding and enforceable as against all persons
having claims of any kind in tort, contract or otherwise against the Town or the Enterprise
irrespective of whether such persons have notice of such lien.
7. The Mayor and the Town Clerk, other officers of the Town, and the
members of the Board are hereby authorized and directed to take any and all actions
necessary or appropriate to effectuate the provisions of this Ordinance, including, but not
limited to, the execution of such certificates and affidavits as reasonably may be required
by the Authority or bond counsel for the Enterprise. The Town Clerk is hereby authorized
and directed to attest, as necessary, all signatures and acts of the Mayor or any official
of the Board or the Town in connection with the matters authorized by this Ordinance,
and to place the seal of the Town, as necessary, on the documents authorized and
approved by this Ordinance and all other additional certificates, documents and other
papers associated with the transactions and other matters authorized by this Ordinance.
The Mayor, Mayor Pro Tem, the Town Administrator, the Finance Director of the Town
and all other officials, employees and agents of the Board or the Town are hereby
authorized to execute and deliver for and on behalf of the Town or the Enterprise any and
all additional certificates, documents and other papers, including, but not limited to, any
agreement concerning the deposit and investment of funds in connection with the
transactions contemplated by this Ordinance, and to perform all other acts that they may
deem necessary or appropriate in order to implement and carry out the transactions and
other matters authorized or contemplated by this Ordinance.
4872-6734-6663.3
8. The Town's Project Manager-Utilities and the Town's Finance Director are
hereby determined to each be an Authorized Officer as defined in the Loan Agreement
for the purpose of performing acts or executing documents relating to the Bond and the
Loan Agreement and the loan evidenced by such documents.
9. The System shall continue to be operated as an enterprise during 2024 and
2025 within the meaning of Article X, Section 20 of the Colorado Constitution and the Act.
The Town will use its best efforts to continue to operate and maintain the System as an
enterprise within the meaning of Article X, Section 20 of the Colorado Constitution and
the Act as long as the Loan Agreement and the Bond are outstanding.
10. The proceeds of the Loan (as defined in the Loan Agreement) shall be
requisitioned by the Town, acting by and through the Enterprise, in the manner provided
in the Loan Agreement. For each requisition, the Town, acting by and through the
Enterprise, shall keep an accounting of the amount, if any, of such requisition that
constitutes principal of the Loan that is being forgiven by the Authority and the portions of
such amount that are attributable to federal and State of Colorado sources.
11. All acts, orders, ordinances, or parts thereof, in conflict with this Ordinance
are hereby repealed, but only to the extent of such conflict.
12. If one or more sections or parts of this Ordinance shall be adjudged
unenforceable or invalid, in whole or in part, such judgment shall not affect, impair or
invalidate the remaining provisions of this Ordinance, it being the intention that the various
provisions hereof are severable. If any provision hereof or the application thereof is
determined by a court or administrative body to be valid or enforceable only if its
application is limited, its application shall be limited as required to most fully implement
its purpose.
13. This Ordinance is, and shall constitute, a legislative measure of the Town,
acting by and through the Enterprise, and after the Bond is issued, this Ordinance shall
constitute an irrevocable contract between the Town, acting by and through the
Enterprise, and the Authority or any subsequent owner of the Bond, and this Ordinance
shall be and remain irrepealable until the Bond shall be fully paid, satisfied or discharged.
14. All actions (not inconsistent with the provisions of this Ordinance) heretofore
taken by the governing body of the Enterprise or by the officers and employees of the
Town or the Enterprise in connection with the undertaking and completion of the Project
and issuance of the Bond and the execution of the Loan Agreement by the Town, acting
by and through the Enterprise, are hereby ratified, approved and confirmed.
15. This Ordinance, immediately upon its passage, shall be recorded in the
Town book of Ordinances kept for that purpose, and shall be authenticated by the
signatures of the Mayor and of the Town Clerk.
[Remainder of page intentionally blank]
4872-6734-6663.3
16. Following its adoption, this Ordinance shall take effect and be in force on
the date that is 30 days after its publication.
INTRODUCED, READ BY TITLE, APPROVED AND ADOPTED on thej^day
of February 2025.
[SEAL]
TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE
ATTEST:
Mayor
J^->_Q 0 ~ —- ^^^
T6^1vn Clerk
I hereby certify that the above Ordinance was introduced at a regular meeting of the Board
of Trustees on the Z.5 vclay of ^e^eM^^zy, 2025 and published by title in a newspaper
of general circulation in the Town ofEstes Park, Colorado, on the Zb ^ day of
Y'^^<2A->c»^^ , 2025, all as required by the Statutes of the State of Colorado.
APPROVED AS TO FORM:
Town Attorney
ti/)/,«'• f^W]^A
Wvn ^&SL.^Ste^-Clerk
Bond Counsel Richard L. Buddin
4872-6734.6663.3
DRINKING WATER REVOLVING FUND
LOAN AGREEMENT
BETWEEN
COLORADO WATER RESOURCES AND POWER
DEVELOPMENT AUTHORITY
AND
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH
ITS WATER ACTIVITY ENTERPRISE
DATED
Direct Loan - Revenue Pledge - BIL and Base - Open Funded
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LOAN AGREEMENT
THIS LOAN AGREEMENT is made and entered into as of this ____ day of ______ 2025,
by and between COLORADO WATER RESOURCES AND POWER DEVELOPMENT
AUTHORITY (the "Authority"), a body corporate and political subdivision of the State of
Colorado, and the TOWN OF ESTES PARK, COLORADO, ACTING BY AND
THROUGH ITS WATER ACTIVITY ENTERPRISE (the "Governmental Agency").
WITNESSETH THAT:
WHEREAS, the United States of America, pursuant to the federal Safe Drinking Water Act
of 1996, assists state and local participation in the financing of the costs of drinking water system
projects and said federal Drinking Water Act requires each state to establish a drinking water
revolving fund to be administered by an instrumentality of the State.
WHEREAS, the Authority was created to initiate, acquire, construct, maintain, repair, and
operate or cause to be operated certain water resource projects, and to finance the cost thereof;
WHEREAS, Section 37-95-107.8, Colorado Revised Statutes, has created a Drinking Water
Revolving Fund to be administered by the Authority;
WHEREAS, the Authority has determined to loan certain sums to governmental agencies in
Colorado to finance all or a portion of the costs of certain water resource projects, which loans
are subject to the requirements of applicable federal law, regulations, and guidelines then in
effect;
WHEREAS, the Authority has authorized certain funds to be applied through its Drinking
Water Revolving Fund to qualified governmental agencies as Principal Forgiveness, as defined
below;
WHEREAS, the Colorado Legislature has approved a Project Eligibility List that includes
the water resource project proposed by the Governmental Agency to be financed hereunder;
WHEREAS, the Governmental Agency has made timely application to the Drinking Water
Revolving Fund for a loan to finance a portion of the cost of a certain water resource project, the
Authority has approved the Governmental Agency's application for a loan from available funds
in the Drinking Water Revolving Fund in an amount not to exceed the amount of the loan
commitment set forth in Exhibit B hereto to finance all or a portion of the cost of such project,
and the Authority has approved the application of Principal Forgiveness funds to that portion of
the Loan as set forth in Exhibit B;
WHEREAS, the Governmental Agency will issue its bond to the Authority to evidence said
loan from the Authority;
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NOW THEREFORE, for and in consideration of the award of the loan by the Authority, the
Governmental Agency agrees to perform its obligations under this Loan Agreement in
accordance with the conditions, covenants and procedures set forth herein and attached hereto as
a part hereof, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms as used in this Loan Agreement
shall, unless the context clearly requires otherwise, have the following meanings:
Act" means the "Colorado Water Resources and Power Development Authority Act,"
being Section 37-95-101 et seq. of the Colorado Revised Statutes, as the same may from time to
time be amended and supplemented.
Authority" means the Colorado Water Resources and Power Development Authority, a
body corporate and political subdivision of the State of Colorado duly created and validly
existing under and by virtue of the Act.
Authorized Officer" means, in the case of the Governmental Agency, the person
whose name is set forth in Paragraph (7) of Exhibit B hereto or such other person or persons
authorized pursuant to a resolution or ordinance of the governing body of the Governmental
Agency to act as an Authorized Officer of the Governmental Agency to perform any act or
execute any document relating to the Loan, the Governmental Agency Bond, or this Loan
Agreement, whose name is furnished in writing to the Authority.
Commencement Date" means the date of commencement of the term of this Loan
Agreement, as set forth in Paragraph (1) of Exhibit B attached hereto and made a part hereof.
Cost" means those costs that are eligible to be funded from draws under the Federal
Capitalization Agreement capitalizing the Drinking Water Revolving Fund and are reasonable,
necessary and allocable to the Project and are permitted by generally accepted accounting
principles to be costs of the Project.
Custodian" means Wells Fargo Bank National Association, or any successor appointed
by the Authority as custodian of the direct loan portion of the Drinking Water Revolving Fund.
Event of Default" means any occurrence or event specified in Section 5.01 hereof.
Federal Capitalization Agreement" means the instrument or agreement established or
entered into by the United States of America Environmental Protection Agency with the
Authority to make capitalization grant payments pursuant to the Safe Drinking Water Act, as
amended (42 U.S.C. Section 300f et seq.)
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Governmental Agency" means the entity that is a party to and is described in the first
paragraph of this Loan Agreement, and its successors and assigns.
Governmental Agency Bond" means the bond executed and delivered by the
Governmental Agency to the Authority to evidence the Loan, the form of which is attached
hereto as Exhibit D and made a part hereof.
Loan" means the loan made by the Authority to the Governmental Agency to finance or
refinance a portion of the Cost of the Project pursuant to this Loan Agreement. For all purposes
of this Loan Agreement, the amount of the Loan at any time shall be the amount of the Loan
Commitment set forth in Paragraph (4) of Exhibit B attached hereto and made a part of this Loan
Agreement, less any of such principal amount as has been repaid by the Governmental Agency
under this Loan Agreement, and less any Principal Forgiveness applied to the Loan by the
Authority pursuant to Exhibit B.
Loan Agreement" means this Loan Agreement, including the Exhibits attached hereto,
as it may be supplemented, modified, or amended from time to time in accordance with the terms
hereof.
Loan Closing" means the date upon which the Governmental Agency shall issue and
deliver the Governmental Agency Bond.
Loan Repayments" means the payments payable by the Governmental Agency
pursuant to Section 3.03 of this Loan Agreement, including payments payable under the
Governmental Agency Bond.
Loan Term" means the term of this Loan Agreement provided in Paragraph (5) of
Exhibit B attached hereto and made a part hereof, subject to the Principal Forgiveness clause set
forth in Paragraph (10) of Exhibit B, if applicable. If the Loan is prepaid in its entirety pursuant
to Section 3.06, the Loan Term shall automatically terminate.
Pledged Property" means the source of repayment described in Paragraph (3) of
Exhibit A to this Loan Agreement attached hereto and made a part hereof.
Prime Rate" means the prevailing commercial interest rate announced by the Wall
Street Journal from time to time, or, if the Wall Street Journal ceases announcing a prime rate,
shall be the prevailing commercial interest rate announced by Citibank, N.A. as its prime lending
rate.
Principal Forgiveness" means forgiveness of the Governmental Agency’s obligation to
repay that portion of the principal amount of the Loan. This may take the form of "Up-Front
Principal Forgiveness" in the amount identified in Part (4)(a) of Exhibit B, attached hereto and
made a part hereof, which amount shall be applied at Closing, or as "Post-Closing Principal
Forgiveness" in a manner to be effectuated in the Authority’s discretion as provided in
paragraph (10) of Exhibit B, or both.
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Project" means the project of the Governmental Agency described in Paragraph (1) of
Exhibit A attached hereto and made a part hereof, all or a portion of the Cost of which is
financed or refinanced by the Authority through the making of the Loan under this Loan
Agreement.
Project Loan Account" means the Project Loan Account established within the
Drinking Water Revolving Fund.
System" means the water system of the Governmental Agency, described in Paragraph
2) of Exhibit A, including the Project, described in Paragraph (1) of Exhibit A attached hereto
and made a part hereof, for which the Governmental Agency is making the borrowing under this
Loan Agreement, as such System may be modified, replaced, or expanded from time to time.
Except where the context otherwise requires, words importing the singular number shall
include the plural number and vice versa, and words importing persons shall include firms,
associations, corporations, agencies and districts. Words importing one gender shall include the
other gender.
ARTICLE II
REPRESENTATIONS AND COVENANTS OF GOVERNMENTAL AGENCY
SECTION 2.01. Representations of Governmental Agency. The Governmental Agency
represents for the benefit of the Authority:
a) Organization and Authority.
i) The Governmental Agency is a governmental agency as defined in the Act
and as described in the first paragraph of this Loan Agreement.
ii) The Governmental Agency has full legal right and authority and all
necessary licenses and permits required as of the date hereof to own, operate, and maintain the
System, other than licenses and permits relating to the construction and acquisition of the Project
that the Governmental Agency expects to receive in the ordinary course of business; to carry on
its activities relating thereto; and to undertake and complete the Project. The Governmental
Agency has full legal right and authority to execute and deliver this Loan Agreement; to execute,
issue, and deliver the Governmental Agency Bond; and to carry out and consummate all
transactions contemplated by this Loan Agreement and the Governmental Agency Bond. The
Project is on the drinking water project eligibility list approved by the General Assembly of the
State of Colorado pursuant to the Act and is a project that the Governmental Agency may
undertake pursuant to Colorado law, and for which the Governmental Agency is authorized by
law to borrow money.
iii) The proceedings of the Governmental Agency's governing body
approving this Loan Agreement and the Governmental Agency Bond, and authorizing their
execution, issuance, and delivery on behalf of the Governmental Agency, and authorizing the
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Governmental Agency to undertake and complete the Project, or to cause the same to be
undertaken and completed, have been duly and lawfully adopted and approved in accordance
with the laws of Colorado, and such proceedings were duly approved and published, if
necessary, in accordance with applicable Colorado law, at a meeting or meetings that were duly
called pursuant to necessary public notice and held in accordance with applicable Colorado law,
and at which quorums were present and acting throughout.
iv) This Loan Agreement has been, and the Governmental Agency Bond
when delivered at the Loan Closing will have been, duly authorized, executed, and delivered by
an Authorized Officer of the Governmental Agency; and, assuming that the Authority has all the
requisite power and authority to authorize, execute, and deliver, and has duly authorized,
executed, and delivered, this Loan Agreement, this Loan Agreement constitutes, and the
Governmental Agency Bond when delivered to the Authority will constitute, the legal, valid, and
binding obligations of the Governmental Agency in accordance with their respective terms; and
the information contained under "Description of the Loan" on Exhibit B attached hereto and
made a part hereof is true and accurate in all material respects.
b) Full Disclosure.
There is no fact that the Governmental Agency has not disclosed to the Authority in
writing on the Governmental Agency's application for the Loan or otherwise that materially
adversely affects the properties, activities, prospects, or condition (financial or otherwise) of the
Governmental Agency or the System, or the ability of the Governmental Agency to make all
Loan Repayments, or the ability of the Governmental Agency otherwise to observe and perform
its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond.
c) Pending Litigation.
Except as disclosed to the Authority in writing, there are no proceedings pending, or, to
the knowledge of the Governmental Agency threatened, against or affecting the Governmental
Agency, in any court, or before any governmental authority or arbitration board or tribunal, that,
if adversely determined, would materially adversely affect the properties, activities, prospects, or
condition (financial or otherwise) of the Governmental Agency or the System, or the ability of
the Governmental Agency to make all Loan Repayments, or the ability of the Governmental
Agency otherwise to observe and perform its duties, covenants, obligations, and agreements
under this Loan Agreement and the Governmental Agency Bond.
d) Compliance with Existing Laws and Agreements.
The authorization, execution, and delivery of this Loan Agreement and the Governmental
Agency Bond by the Governmental Agency, the observance and performance by the
Governmental Agency of its duties, covenants, obligations, and agreements thereunder, and the
consummation of the transactions provided for in this Loan Agreement and in the Governmental
Agency Bond; the compliance by the Governmental Agency with the provisions of this Loan
Agreement and the Governmental Agency Bond; and the undertaking and completion of the
Project; will not result in any breach of any of the terms, conditions, or provisions of, or
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constitute a default under, or result in the creation or imposition of any lien, charge, or
encumbrance upon, any property or assets of the Governmental Agency pursuant to any existing
ordinance or resolution, trust agreement, indenture, mortgage, deed of trust, loan agreement, or
other instrument (other than the lien and charge of this Loan Agreement and the Governmental
Agency Bond) to which the Governmental Agency is a party or by which the Governmental
Agency, the System, or any of the property or assets of the Governmental Agency may be bound,
and such action will not result in any violation of the provisions of the charter or other document
pursuant to which the Governmental Agency was established, or of any laws, ordinances,
resolutions, governmental rules, regulations, or court orders to which the Governmental Agency,
the System, or the properties or operations of the Governmental Agency, are subject.
e) No Defaults.
No event has occurred and no condition exists that, upon authorization, execution, and
delivery of this Loan Agreement and the Governmental Agency Bond, or receipt of the amount
of the Loan, would constitute an Event of Default hereunder. The Governmental Agency is not in
violation of, and has not received notice of any claimed violation of, any term of any agreement
or other instrument to which it is a party, or by which it, the System, or its property, may be
bound, which violation would materially adversely affect the properties, activities, prospects, or
condition (financial or otherwise) of the Governmental Agency or the System, or the ability of
the Governmental Agency to make all Loan Repayments, or the ability of the Governmental
Agency otherwise to observe and perform its duties, covenants, obligations, and agreements
under this Loan Agreement and the Governmental Agency Bond.
f) Governmental Consent.
The Governmental Agency has obtained all permits and approvals required to date by any
governmental body or officer for the making, observance, and performance by the Governmental
Agency of its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond, or for the undertaking or completion of the Project and the
financing or refinancing thereof; and the Governmental Agency has complied with all applicable
provisions of law requiring any notification, declaration, filing, or registration with any
governmental body or officer in connection with the making, observance, and performance by
the Governmental Agency of its duties, covenants, obligations, and agreements under this Loan
Agreement and the Governmental Agency Bond, or with the undertaking or completion of the
Project and the financing or refinancing thereof. Other than those relating to the construction
and acquisition of the Project, which the Governmental Agency expects to receive in the
ordinary course of business, no consent, approval, or authorization of, or filing, registration, or
qualification with, any governmental body or officer that has not been obtained is required on the
part of the Governmental Agency as a condition to the authorization, execution, and delivery of
this Loan Agreement and the Governmental Agency Bond, the undertaking or completion of the
Project or the consummation of any transaction herein contemplated.
g) Compliance with Law.
The Governmental Agency:
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i) is in compliance with all laws, ordinances, governmental rules, and
regulations to which it is subject, the failure to comply with which would materially adversely
affect the ability of the Governmental Agency to conduct its activities or to undertake or
complete the Project, or the condition (financial or otherwise) of the Governmental Agency or
the System; and
ii) has obtained all licenses, permits, franchises, or other governmental
authorizations presently necessary for the ownership of its property, or for the conduct of its
activities that, if not obtained, would materially adversely affect the ability of the Governmental
Agency to conduct its activities or to undertake or complete the Project, or the condition
financial or otherwise) of the Governmental Agency or the System.
h) Use of Proceeds.
The Governmental Agency will apply the proceeds of the Loan from the Authority as
described in Exhibit B attached hereto and made a part hereof (i) to finance all or a portion of the
Cost; and (ii) where applicable, to reimburse the Governmental Agency for a portion of the Cost,
which portion was paid or incurred in anticipation of reimbursement by the Authority.
SECTION 2.02. Particular Covenants of the Governmental Agency.
a) Pledge of Source of Repayment.
The Governmental Agency irrevocably pledges and grants a lien upon the source of
repayment described in Paragraph (3) of Exhibit A for the punctual payment of the principal of
and the interest on the Loan, and all other amounts due under this Loan Agreement and the
Governmental Agency Bond according to their respective terms.
b) Performance Under Loan Agreement.
The Governmental Agency covenants and agrees to maintain the System in good repair
and operating condition; to cooperate with the Authority in the observance and performance of
the respective duties, covenants, obligations and agreements of the Governmental Agency and
the Authority under this Loan Agreement; and, to comply with the covenants described in the
Exhibits to this Loan Agreement.
c) Completion of Project and Provision of Moneys Therefor.
The Governmental Agency covenants and agrees to exercise its best efforts in accordance
with prudent water utility practice to complete the Project and to provide from the Pledged
Property or other sources available to it all moneys, in excess of the total amount of proceeds it
receives under the Loan, required to complete the Project.
d) Disposition of the System.
During the Loan Term, the Governmental Agency shall not sell, lease, abandon, or
otherwise dispose of, all or substantially all, or any substantial portion, of the System or any
other system that provides revenues to provide for the payment of this Loan Agreement or the
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Governmental Agency Bond, except on ninety (90) days' prior written notice to the Authority
and, in any event, shall not so sell, lease, abandon, or otherwise dispose of the same unless the
following conditions are met: (i) the Governmental Agency shall assign this Loan Agreement in
accordance with Section 4.02 hereof and its rights and interests hereunder to the purchaser or
lessee of the System, and such purchaser or lessee shall expressly assume all duties, covenants,
obligations, and agreements of the Governmental Agency under this Loan Agreement in writing;
and (ii) the Authority shall by appropriate action determine that such sale, lease, abandonment or
other disposition will not adversely affect the Authority's ability to meet its duties, covenants,
obligations, and agreements under the Act, the Federal Clean Water Act, the Safe Drinking
Water Act, or any agreement between the Authority or the State of Colorado relating to any
capitalization grant received by the Authority or the State of Colorado under the Federal Clean
Water Act or the Safe Drinking Water Act, and in its sole discretion, approve such sale, lease,
abandonment, or other disposition.
e) Inspections; Information.
The Governmental Agency shall permit the Authority to examine, visit, and inspect, at
any and all reasonable times, the property, if any, constituting the Project, and to inspect and
make copies of, any accounts, books, and records, including (without limitation) its records
regarding receipts, disbursements, contracts, investments, and any other matters relating thereto
and to its financial standing, and shall supply such reports and information as the Authority may
reasonably require in connection therewith. In addition, the Governmental Agency shall provide
the Authority with copies of any official statements or other forms of offering prospectus relating
to any other bonds, notes, or other indebtedness of the Governmental Agency secured from the
Pledged Property and issued after the date of this Loan Agreement. At the discretion of the
Authority, the Governmental Agency may be required to provide unaudited quarterly financial
reports to the Authority.
f) Cost of Project.
The Governmental Agency certifies that the Estimated Cost of the Project, as listed in
Paragraph (3) of Exhibit B hereto and made a part hereof, is a reasonable and accurate
estimation, and that upon direction of the Authority it shall supply the Authority with a
certificate from its engineer stating that such cost is a reasonable and accurate estimation, taking
into account investment income to be realized during the course of the Project, and other money
that would, absent the Loan, have been used to pay the Estimated Cost of the Project.
g) Reimbursement for Ineligible Costs.
The Governmental Agency shall promptly reimburse the Authority for any portion of the
Loan that is determined not to be a Cost of the Project and that would not be eligible for funding
from draws under the Drinking Water Revolving Fund. Such reimbursement shall be promptly
repaid to the Authority upon written request of the Authority and shall be applied by the
Authority to reduce the principal amount of the Loan.
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h) Advertising.
The Governmental Agency agrees not to advertise the Project for bids until plans and
specifications for the Project, if such plans and specifications require approval, have been
approved by the State Department of Public Health and Environment.
i) Commencement of Construction.
Within twelve (12) months after the Loan Closing, the Governmental Agency shall
initiate construction of the Project.
j) Interest in Project Site.
As a condition of the Loan, the Governmental Agency will demonstrate to the satisfaction
of the Authority before advertising for bids for construction that the Governmental Agency has
or will have a fee simple or such other estate or interest in the site of the Project, including
necessary easements and rights-of-way, as the Authority finds sufficient to assure undisturbed
use and possession for the purpose of construction and operation of the Project for the estimated
life of the Project.
k) No Lobbying.
No portion of the Loan shall be used for lobbying or propaganda as prohibited by 18
U.S.C. Section 1913 or Section 607(a) of Public Law 96-74.
l) Operation and Maintenance of System.
The Governmental Agency covenants and agrees that it shall, in accordance with prudent
water utility practice: (i) at all times operate the properties of its System and any business in
connection therewith in an efficient manner; (ii) maintain its System in good repair, working
order and operating condition; (iii) from time to time make all necessary and proper repairs,
renewals, replacements, additions, betterments, and improvements with respect to its System so
that at all times the business carried on in connection therewith shall be properly and
advantageously conducted; provided, however, this covenant shall not be construed as requiring
the Governmental Agency to expend any funds that are derived from sources other than the
operation of its System or other receipts of such System that are not pledged under subsection (a)
of this Section 2.02, and provided further that nothing herein shall be construed as preventing the
Governmental Agency from doing so.
m) Records; Accounts.
During the Loan Term, the Governmental Agency shall keep accurate records and
accounts for its System (the “System Records”), separate and distinct from its other records and
accounts (the "General Records"). Such System Records shall be maintained in accordance with
generally accepted accounting principles, generally accepted government accounting standards
related to the reporting of infrastructure assets and System Records and General Records shall be
made available for inspection by the Authority at any reasonable time.
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n) Audits.
i) If the Governmental Agency's System Records or General Records are
audited annually by an independent accountant, then it shall furnish a copy of such annual
audit(s) including all written comments and recommendations of the accountant preparing the
audit to the Authority within 210 days of the close of the fiscal year audited, and the
Governmental Agency shall cause its independent auditor to file with the Authority a report to
the effect that the Governmental Agency is not in default of its Rate Covenant, Paragraph (1) of
Exhibit F; Operations and Maintenance Reserve Fund Covenant, Paragraph (5) of Exhibit F; or
Lien Representation, Paragraph (4) of Exhibit F under this Loan Agreement, which report may
be a part of the annual audit or a separate document.
ii) If the Governmental Agency's annual revenues are less than $100,000, and
the Governmental Agency elects in accordance with state law to file a short form audit
exemption in lieu of performing an annual audit, then it shall provide the Authority a copy of
the Exemption from Audit Form completed by a person skilled in governmental accounting
practices, together with a report, also completed by a person skilled in governmental accounting
practices, to the effect that the Governmental Agency is not in default of its Rate Covenant,
Paragraph (1) of Exhibit F; Operations and Maintenance Reserve Fund Covenant, Paragraph (5)
of Exhibit F; or Lien Representation, Paragraph (4) of Exhibit F under this Loan Agreement
within 210 days of the close of the fiscal year.
iii) If the Governmental Agency's annual revenues are more than $100,000,
but less than $500,000, and the Governmental Agency elects in accordance with state law to file
a long form audit exemption in lieu of performing an annual audit, then it shall provide the
Authority a copy of the Exemption from Audit Form completed by an independent accountant
with knowledge of governmental accounting practices, together with a report, also completed by
an independent accountant with knowledge of governmental accounting practices, to the effect
that the Governmental Agency is not in default of its Rate Covenant, Paragraph (1) of Exhibit F;
Operations and Maintenance Reserve Fund Covenant, Paragraph (5) of Exhibit F; or Lien
Representation, Paragraph (4) of Exhibit F under this Loan Agreement within 210 days of the
close of the fiscal year.
o) Insurance.
During the Loan Term, the Governmental Agency shall maintain or cause to be
maintained in force, insurance policies with responsible insurers or self-insurance programs
providing against risk of direct physical loss, damage, or destruction of its System, at least to the
extent that similar insurance is usually carried by utilities constructing, operating, and maintain-
ing utility system facilities of the nature of the Governmental Agency's System, including
liability coverage. The Governmental Agency shall pay all insurance premiums for coverage
required hereby from revenues derived from the operation of the System. Nothing herein shall
be deemed to preclude the Governmental Agency from asserting against any party, other than the
Authority, a defense that may be available to the Governmental Agency, including, without
limitation, a defense of governmental immunity.
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p) Notice of Material Adverse Change.
During the Loan Term, (i) the Governmental Agency shall promptly notify the Authority
of any material adverse change in the activities, prospects, or condition (financial or otherwise)
of the Governmental Agency relating to its System, or its ability to observe and perform its
duties, covenants, obligations, and agreements under this Loan Agreement; (ii) the Governmental
Agency shall promptly notify the Authority of any material adverse change in the activities,
prospects, or condition (financial or otherwise) of the Governmental Agency relating to its ability
to make all Loan Repayments from the Pledged Property, or its ability to otherwise observe and
perform its duties, covenants, obligations, and agreements under this Loan Agreement and the
Governmental Agency Bond.
q) Hiring Requirements.
The Governmental Agency agrees to comply with the requirements found at Title 8,
Article 17, Colorado Revised Statutes.
r) Additional Covenants and Requirements.
Additional covenants and requirements are included on Exhibit F attached hereto and
made a part hereof. The Governmental Agency agrees to observe and comply with each such
additional covenant and requirement included on Exhibit F.
s) Continuing Representations.
The representations of the Governmental Agency contained herein shall be true at the
time of the execution of this Loan Agreement and the Governmental Agency covenants not to
take any action that would cause them not to be true at all times during the term of this Loan
Agreement.
t) Capacity Development.
The Governmental Agency covenants to maintain its technical, financial, and managerial
capability to ensure compliance with the requirements of the Safe Drinking Water Act of 1996
under Section 1452(a)(3)(A)(i).
u) Archeological Artifacts.
In the event that archeological artifacts or historical resources are unearthed during
construction excavation, the Governmental Agency shall stop or cause to be stopped,
construction activities and will notify the State Historic Preservation Office and the Authority of
such unearthing.
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ARTICLE III
LOAN TO GOVERNMENTAL AGENCY; AMOUNTS PAYABLE;
GENERAL AGREEMENTS
SECTION 3.01. The Loan. The Authority hereby agrees to loan and disburse to the
Governmental Agency in accordance with Section 3.02 hereof, and the Governmental Agency
agrees to borrow and accept from the Authority, the Loan in the principal amount equal to the
Loan Commitment set forth in Paragraph (4) of Exhibit B attached hereto and made a part hereof
as such Loan Commitment may be revised to reflect a reduction in the Cost of the Project prior
to the initial Loan Repayment; provided, however, that the Authority shall be under no obligation
to make the Loan if (i) the Governmental Agency does not deliver its Governmental Agency
Bond to the Authority on the Loan Closing, or (ii) an Event of Default has occurred and is
continuing under this Loan Agreement. The Governmental Agency shall use the proceeds of the
Loan strictly in accordance with Section 2.01(h) hereof.
SECTION 3.02. Disbursement of the Loan. The Authority has created in the Drinking Water
Revolving Fund a Project Loan Account for this Project from which the Costs of the Project shall
be paid. Amounts shall be transferred into the Project Loan Account and disbursed to the
Governmental Agency upon receipt of a requisition executed by an Authorized Officer, and
approved by the Authority and the State Department of Public Health and Environment, in the
form set forth in Exhibit G; provided that the Disbursement of the Loan may be withheld if the
Governmental Agency is not complying with any of the covenants and conditions in the Loan
Agreement.
SECTION 3.03. Amounts Payable.
a) The Governmental Agency shall repay the principal due on the Loan, after
accounting for the reduction in the principal of the Loan due to application of Up-Front Principal
Forgiveness at Closing, semi-annually on May 1st and November 1st in accordance with the
schedule set forth on Exhibit C attached hereto and made a part hereof, as the same may be
amended or modified, commencing on the Loan Repayment Commencement Date set forth in
Paragraph (8) of Exhibit B.
The Governmental Agency shall execute the Governmental Agency Bond to evidence its
obligations to make Loan Repayments and the obligations of the Governmental Agency under
the Governmental Agency Bond shall be deemed to be amounts payable under this Section 3.03.
Each Loan Repayment shall be deemed to be a credit against the corresponding obligation of the
Governmental Agency under this Section 3.03 and shall fulfill the Governmental Agency's
obligation to pay such amount hereunder and under the Governmental Agency Bond. Each
payment made pursuant to this Section 3.03 shall be applied to the payment of principal as set
forth in Exhibit C.
b) In addition to the payments required by subsection (a) of this Section 3.03, the
Governmental Agency shall pay a late charge for any payment that is received by the Authority
later than the tenth (10th) day following its due date, in an amount equal to the greater of twelve
percent (12%) per annum or the Prime Rate plus one half of one percent per annum on such late
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payment from its due date to the date it is actually paid; provided, however, that such late charge
shall not be in excess of the maximum rate permitted by law as of the date hereof.
c) Loan Repayments pursuant to this Section 3.03 shall be made by electronic means
either by bank wire transfer or by Automated Clearing House “ACH” transfer).
SECTION 3.04. Loan Repayment – Principal Forgiveness. The Authority has determined to
apply Up-Front Principal Forgiveness to the principal amount of the Loan in an amount
identified in Exhibit B, Part (4)(a). The amount of Up-Front Principal Forgiveness set forth in
Exhibit B, Part (4)(a), will not need to be repaid. Further, at the discretion of the Authority, and
if such funds are available and the Governmental Agency is deemed eligible, the Loan may be
forgiven in an amount up to 100% of the principal amount of the Loan pursuant to the terms and
conditions of the current Capitalization Grant, in a manner to be effectuated as set forth in
Paragraph 10 of Exhibit B attached hereto and made a part hereof. At the Authority’s sole
discretion, and subject to Exhibit B, Paragraph 10(b)(ii)(C), and only if the amount to be
forgiven is 100%, the Authority also may waive payment of any interest accrued on the amount
of principal forgiven through the Effective Date of Post-Closing Principal Forgiveness (defined
in Exhibit B, Paragraph 10(b)).
SECTION 3.05. Unconditional Obligations. The Loan Repayments and all other payments
required hereunder are payable solely from the Pledged Property. The obligation of the
Governmental Agency to make the Loan Repayments and all other payments required hereunder
shall be absolute and unconditional and shall not be abated, rebated, set-off, reduced, abrogated,
terminated, waived, diminished, postponed or otherwise modified in any manner or to any extent
whatsoever, while any payments due under the Loan Agreement remain unpaid regardless of any
contingency, act of God, event or cause whatsoever, including (without limitation) any acts or
circumstances that may constitute failure of consideration, eviction or constructive eviction, the
taking by eminent domain or destruction of or damage to the Project, commercial frustration of
the purpose, any change in the laws of the United States of America or of the State of Colorado
or any political subdivision of either or in the rules or regulations of any governmental authority,
any failure of the Authority to perform and observe any agreement, whether express or implied,
or any duty, liability or obligation arising out of or connected with the Project or this Loan
Agreement or any rights of set-off, recoupment, abatement or counterclaim that the
Governmental Agency might otherwise have against the Authority or any other party or parties;
provided, however, that payments hereunder shall not constitute a waiver of any such rights.
SECTION 3.06. Disclaimer of Warranties and Indemnification. The Governmental Agency
acknowledges and agrees that (i) the Authority makes no warranty or representation, either
express or implied as to the value, design, condition, merchantability, or fitness for particular
purpose, or fitness for any use, of the Project or any portions thereof, or any other warranty or
representation with respect thereto; (ii) in no event shall the Authority or its agents be liable or
responsible for any direct, incidental, indirect, special, or consequential damages in connection
with or arising out of this Loan Agreement, or the Project, or the existence, furnishing,
functioning, or use of the Project, or any item or products or services provided for in this Loan
Agreement; and (iii) to the extent authorized by law, the Governmental Agency shall indemnify,
save, and hold harmless the Authority against any and all claims, damages, liability, and court
awards, including costs, expenses, and attorney fees incurred as a result of any act or omission
by the Governmental Agency, or its employees, agents, or subcontractors pursuant to the terms
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of this Loan Agreement, provided, however, that the provisions of this clause (iii) are not
intended to and shall not be construed as a waiver of any defense or limitation on damages
provided for under and pursuant to the Colorado Governmental Immunity Act (Section 24-10-
101, et seq. C.R.S.), or under the laws of the United States or the State of Colorado.
SECTION 3.07. Option to Prepay Loan Repayments. The Governmental Agency may
prepay the Loan Repayments, in whole or in part without penalty upon prior written notice
unless otherwise waived by the Authority) of not less than thirty (30) days. Prepayments shall
be applied first to accrued interest and then to principal on the Loan. The Authority will amend
Exhibit C to reflect any prepayment of the principal amount of the Loan.
SECTION 3.08. Source of Payment of Governmental Agency's Obligations. The Authority
and the Governmental Agency agree that the amounts payable by the Governmental Agency
under this Loan Agreement, including, without limitation, the amounts payable by the
Governmental Agency pursuant to Section 3.03, Section 3.05, Section 3.06, and Section 5.04 of
this Loan Agreement are payable solely from the Pledged Property, and are not payable from any
other source whatsoever; provided, however, that the Governmental Agency at its option, may
elect to make payment from any source available to it.
SECTION 3.09. Delivery of Documents. Concurrently with the execution and delivery of this
Loan Agreement, the Governmental Agency will cause to be delivered to the Authority each of
the following items:
a) an opinion of the Governmental Agency's counsel substantially in the form set
forth in Exhibit E-1 hereto (such opinion or portions of such opinion may be given by one or
more counsel); provided, however, that the Authority may in its discretion permit variances in
such opinion from the form or substance of such Exhibit E-1 if such variances are not to the
material detriment of the interests of the Authority;
b) an opinion of the Governmental Agency's Bond Counsel substantially in the form
set forth in Exhibit E-2 hereto. Such opinion must be rendered by Bond Counsel listed in the
Directory of Bond Counsel published by the Bond Buyer (the "Red Book");
c) executed counterparts of this Loan Agreement;
d) copies of the resolutions or ordinances of the governing body of the
Governmental Agency authorizing the execution and delivery of this Loan Agreement and the
Governmental Agency Bond, certified by an Authorized Officer of the Governmental Agency;
and
e) such other certificates, documents, opinions, and information as the Authority
may require.
Upon receipt of the foregoing documents, the Authority shall obligate the amount of the Loan
Commitment set forth in Paragraph (4) of Exhibit B, and make the amount of the Loan available
for the Project in accordance with the terms of this Loan Agreement.
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ARTICLE IV
ASSIGNMENT
SECTION 4.01. Assignment and Transfer by Authority. The Governmental Agency
expressly acknowledges that other than the right, title, and interest of the Authority under Section
3.05, Section 5.04, and Section 5.07, all right, title, and interest of the Authority in, to, and under
this Loan Agreement and the Governmental Agency Bond, including, without limitation, the
right to receive payments required to be made by the Governmental Agency hereunder, and to
compel or otherwise enforce observance and performance by the Governmental Agency of its
other duties, covenants, obligations, and agreements hereunder, may be transferred, assigned,
and reassigned in whole or in part by the Authority at its sole discretion to one or more assignees
or subassignees at any time subsequent to their execution without the necessity of obtaining the
consent of, but after giving prior written notice to, the Governmental Agency.
The Authority shall retain the right to compel or otherwise enforce observance and performance
by the Governmental Agency of its duties, covenants, obligations, and agreements under Section
3.05 and Section 5.04.
SECTION 4.02. Assignment by Governmental Agency. Neither this Loan Agreement nor the
Governmental Agency Bond may be assigned by the Governmental Agency for any reason,
unless the following conditions shall be satisfied: (i) the Authority shall have approved said
assignment in writing; (ii) the assignee shall be a governmental agency as defined by the Act,
and the assignee shall have expressly assumed in writing the full and faithful observance and
performance of the Governmental Agency's duties, covenants, agreements, and obligations under
the Loan Agreement; (iii) immediately after such assignment, the assignee shall not be in default
in the performance or observance of any duties, covenants, obligations, or agreements of the
Governmental Agency under this Loan Agreement; and (iv) the Authority shall receive an
opinion of counsel to the effect that such assignment will not violate the provisions of any
agreement entered into by the Authority with, or condition of any grant received by the Authority
from, the United States of America relating to the Federal Capitalization Agreement or any
capitalization grant received by the Authority or the State under the Safe Drinking Water Act.
No assignment shall relieve the Governmental Agency from primary liability for any of its
obligations under this Loan Agreement, and in the event of such assignment, the Governmental
Agency shall continue to remain primarily liable for the performance and observance of its
obligations to be performed and observed under this Loan Agreement.
ARTICLE V
DEFAULTS AND REMEDIES
SECTION 5.01. Event of Default. If any of the following events occur, it is hereby defined as
and declared to be and to constitute an "Event of Default":
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a) failure by the Governmental Agency to pay, or cause to be paid, any Loan
Repayment required to be paid hereunder when due, which failure shall continue for a period of
thirty (30) days;
b) failure by the Governmental Agency to make, or cause to be made, any required
payments of interest and principal, redemption premium, if any, and interest on any bonds, notes,
or other obligations of the Governmental Agency for borrowed money (other than the Loan and
the Governmental Agency Bond), after giving effect to the applicable grace period, the payments
of which are secured by the Pledged Property;
c) failure by the Governmental Agency to observe and perform any duty, covenant,
obligation or agreement on its part to be observed or performed under this Loan Agreement other
than as referred to in Paragraph (a) of this Section, which failure shall continue for a period of
thirty (30) days after written notice, specifying such failure and requesting that it be remedied, is
given to the Governmental Agency; provided, however, that if the failure stated in such notice is
correctable, but cannot be corrected within the applicable period, the Authority may consent to
an extension of such time if corrective action is instituted by the Governmental Agency within
the applicable period and diligently pursued until the Event of Default is corrected;
d) any representation made by or on behalf of the Governmental Agency contained
in this Loan Agreement, or in any instrument furnished in compliance with or with reference to
this Loan Agreement or the Loan, is false or misleading in any material respect; or
e) (i) a petition is filed by or against the Governmental Agency under any federal or
state bankruptcy or insolvency law, or other similar law in effect on the date of this Loan
Agreement or thereafter enacted, unless in the case of any such petition filed against the
Governmental Agency such petition shall be dismissed within thirty (30) days after such filing,
and such dismissal shall be final and not subject to appeal; or (ii) the Governmental Agency shall
become insolvent, or bankrupt or make an assignment for the benefit of its creditors; or (iii) a
custodian (including, without limitation, a receiver, liquidator, or trustee of the Governmental
Agency or any of its property) shall be appointed by court order, or take possession of the
Governmental Agency, or its property or assets, if such order remains in effect, or such
possession continues, for more than thirty (30) days.
SECTION 5.02. Notice of Default. The Governmental Agency shall give the Authority prompt
telephonic notice of the occurrence of any Event of Default referred to in Section 5.01 at such
time as any senior administrative or financial officer of the Governmental Agency becomes
aware of the existence thereof. Any telephonic notice pursuant to this Section 5.02 shall be
confirmed by the Governmental Agency in writing as soon as practicable.
SECTION 5.03. Remedies on Default. Whenever an Event of Default referred to in Section
5.01 hereof shall have occurred and be continuing, the Authority shall have the right to withhold
disbursement of Loan funds remaining, and take such other action at law or in equity as may
appear necessary to enforce the performance and observance of any duty, covenant, obligation,
or agreement of the Governmental Agency hereunder, including, without limitation, appointment
ex parte of a receiver of the System.
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SECTION 5.04. Attorney's Fees and Other Expenses. In the Event of Default, the
Governmental Agency shall on demand pay to the Authority the reasonable fees and expenses of
attorneys, and other reasonable expenses (including, without limitation, the reasonably allocated
costs of in-house counsel and legal staff) incurred by the Authority in the collection of Loan
Repayments or any other sum due hereunder as a result of such default, or in the enforcement of
the performance or observation of any other duties, covenants, obligations, or agreements of the
Governmental Agency to remedy such default.
SECTION 5.05. Application of Moneys. Any moneys collected by the Authority pursuant to
Section 5.03 hereof shall be applied (a) first, to pay any attorney's fees, or other fees and
expenses owed by the Governmental Agency pursuant to Section 5.04 hereof, (b) second, to pay
principal due and payable on the Loan, and (c) third, to pay any other amounts due and payable
under this Loan Agreement.
SECTION 5.06. No Remedy Exclusive; Waiver; Notice. No remedy herein conferred upon or
reserved to the Authority is intended to be exclusive, and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Loan Agreement, or now or
hereafter existing at law or in equity. No delay or omission to exercise any right, remedy, or
power accruing upon any Event of Default shall impair any such right, remedy, or power, or
shall be construed to be a waiver thereof, but any such right, remedy, or power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle the Authority to
exercise any remedy reserved to it in this Article, it shall not be necessary to give any notice,
other than such notice as may be required in this Article V.
SECTION 5.07. Retention of Authority's Rights. Notwithstanding any assignment or transfer
of this Loan Agreement pursuant to the provisions hereof, or anything else to the contrary
contained herein, the Authority shall have the right upon the occurrence of an Event of Default to
take any action, including (without limitation) bringing an action against the Governmental
Agency at law or in equity, as the Authority may, in its discretion, deem necessary to enforce the
obligations of the Governmental Agency to the Authority pursuant to Section 5.04, Section 3.03,
and Section 3.05 hereof.
SECTION 5.08. Default by the Authority. In the event of any default by the Authority under
any covenant, agreement, or obligation of this Loan Agreement, the Governmental Agency's
remedy for such default shall be limited to injunction, special action, action for specific
performance, or any other available equitable remedy, designed to enforce the performance or
observance of any duty, covenant, obligation, or agreement of the Authority hereunder, as may
be necessary or appropriate. The Authority shall on demand pay to the Governmental Agency
the reasonable fees and expenses of attorneys, and other reasonable expenses, in the enforcement
of such performance or observation.
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ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Notices. All notices, certificates, or other communications hereunder shall be
sufficiently given and shall be deemed given when hand-delivered or mailed by registered or
certified mail, postage prepaid, to the Governmental Agency at the address specified on Exhibit
B attached hereto and made a part hereof, and to the Authority, at the following address:
Colorado Water Resources and Power
Development Authority
1580 N. Logan Street, Suite 820
Denver, Colorado 80203
Attention: Executive Director
Such address may be changed by notice in writing.
SECTION 6.02. Binding Effect. This Loan Agreement shall inure to the benefit of, and shall
be binding upon, the Authority and the Governmental Agency, and their respective successors
and assigns.
SECTION 6.03. Severability. In the event any provision of this Loan Agreement shall be held
illegal, invalid, or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate, render unenforceable, or otherwise affect, any other provision hereof.
SECTION 6.04. Amendments, Supplements and Modifications. This Loan Agreement may
not be amended, supplemented, or modified without the prior written consent of the Authority
and the Governmental Agency.
SECTION 6.05. Execution in Counterparts. This Loan Agreement 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 6.06. Applicable Law and Venue. This Loan Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado, including the Act. Venue for any
action seeking to interpret or enforce the provisions of this Loan Agreement shall be in the
Denver District Court.
SECTION 6.07. Consents and Approvals. Whenever the written consent or approval of the
Authority shall be required under the provisions of this Loan Agreement, such consent or
approval may only be given by the Authority unless otherwise provided by law, or by rules,
regulations or resolutions of the Authority.
SECTION 6.08. Captions. The captions or headings in this Loan Agreement are for
convenience only and shall not in any way define, limit, or describe, the scope or intent of any
provisions or sections of this Loan Agreement.
19-
SECTION 6.09. Further Assurances. The Governmental Agency shall, at the request of the
Authority, authorize, execute, acknowledge, and deliver, such further resolutions, conveyances,
transfers, assurances, financing statements, and other instruments, as may be necessary or
desirable for better assuring, conveying, granting, assigning, and confirming, the rights and
agreements, granted or intended to be granted, by this Loan Agreement and the Governmental
Agency Bond.
SECTION 6.10. Recitals. This Loan Agreement is authorized pursuant to and in accordance
with the Constitution of the State of Colorado and all other laws of the State of Colorado
thereunto enabling. Specifically, but not by way of limitation, this Loan Agreement is authorized
by the Governmental Agency pursuant to Title 37, Article 45.1 C.R.S., Title 31, Article 35, Part
4, C.R.S. and Title 11, Article 57, Part 2, C.R.S and shall so recite in the Governmental Agency
Bond. Such recitals shall conclusively impart full compliance with all provisions and limitations
of such laws and shall be conclusive evidence of the validity and regularity of the issuance of the
Governmental Agency Bond, and the Governmental Agency Bond delivered by the
Governmental Agency to the Authority containing such recital shall be incontestable for any
cause whatsoever after its delivery for value.
A-1
EXHIBIT A
1) Description of the Project
The project consists of improvements to portions of the Carriage Hills Water System distribution system
and replacement of the Spruce Knob Water Company distribution system. Spruce Knob Water Company
will permanently connect to the Town's distribution system and dissolve following completion of the
project.
2) Description of the System
System" shall mean, (i) any facility, plant, works, system, building, structure, improvement, machinery,
equipment, fixture or other real or personal property, relating to the collection, treatment, storage and
distribution of water that is owned, operated or controlled by the Governmental Agency, including,
without limitation, the Project (ii) any renewal, replacement, addition, modification or improvement to
i) above, and (iii) all real or personal property and rights therein and appurtenances thereto necessary or
useful or convenient for the effectiveness of the purposes of the Governmental Agency in the
transmission, treatment, storage and distribution of water.
3) Pledged Property
The Pledged Property shall consist of Net Revenue, as defined below:
Net Revenue” means the Gross Revenue after deducting the Operation and Maintenance Expenses.
Gross Revenue” means all income and revenues directly or indirectly derived by the Governmental
Agency from the operation and use of the System, or any part thereof, including without limitation, any
rates, fees (including without limitation plant investment fees and availability fees), and charges for the
services furnished by, or the use of, the System, and all income attributable to any past or future
dispositions of property or rights, or related contracts, settlements, or judgments held or obtained in
connection with the System or its operations, and including investment income accruing from such
moneys; provided however, that there shall be excluded from Gross Revenue: ad valorem property
taxes; any moneys borrowed and used for providing Capital Improvements; any money and securities,
and investment income therefrom, in any refunding fund, escrow account, or similar account, pledged to
the payment of any bonds or other obligations; and any moneys received as grants or appropriations
from the United States, the State of Colorado or other sources, the use of which is limited or restricted
by the grantor or donor to the provision of Capital Improvements or for other purposes resulting in the
general unavailability thereof, except to the extent any such moneys shall be received as payments for
the use of the System, services rendered thereby, the availability of any such service, or the disposal of
any commodities therefrom.
Capital Improvements” means the acquisition of land, easements, facilities and equipment (other than
ordinary repairs and replacements), and the construction or reconstruction of improvements,
betterments, and extensions, for use by, or in connection with, the System in accordance with Generally
Accepted Accounting Principles.
Operation and Maintenance Expenses” means all reasonable and necessary current expenses of the
Governmental Agency, paid or accrued, for operating, maintaining and repairing the System, including
without limitation legal and overhead expenses of the Governmental Agency directly related to the
administration of the System, insurance premiums, audits, professional services, salaries and
administrative expenses, labor and the cost of materials and supplies for current operation; provided
A-2
however, that there shall be excluded from Operation and Maintenance Expenses any allowance for
depreciation, payments in lieu of taxes or franchise fees, expenses incurred in connection with Capital
Improvements, payments due in connection with any bonds or other obligations, and expenses that are
otherwise paid from ad valorem property taxes.
B-1
EXHIBIT B
DESCRIPTION OF THE LOAN
1) Commencement Date: _______
2) Name and Address of Governmental Agency:
Town of Estes Park, Colorado, Acting By And Through Its Water Activity Enterprise
170 MacGregor Ave, P.O. Box 1200
Estes Park, CO 80517
3) Estimated Cost of the Project: $8,266,597
4) Maximum Principal Amount of Loan Commitment: $5,000,000
a) Up-Front Principal Forgiveness to be Applied at Closing: $1,500,000
b) Maximum Total Principal to be Repaid after Application of Up-Front Principal Forgiveness:
3,500,000
5) Loan Term: 20 years
6) Interest Rate: 3.25% annually
7) Authorized Officers:
Duane Hudson, Finance Director
Jacqui Wesley, Project Manager - Utilities
8) Loan Repayment Commencement Date: May 1, 2025
9) Execution Date: ________
10) Principal Forgiveness:
a) Up-Front Principal Forgiveness: The amount of principal of the Loan identified as Up-Front
Principal Forgiveness in Part (4)(a) above will be forgiven at Closing, provided the Governmental
Agency has met each of its obligations and covenants necessary to effect Closing. Exhibit C to the
B-2
Loan Agreement sets forth the repayment schedule after allowing for the reduction of total Loan
principal by the amount of Up-Front Principal Forgiveness applied.
b) Post-Closing Principal Forgiveness: At the discretion of the Authority, and if such funds are
available and the Governmental Agency is deemed eligible, the Loan may be forgiven in an amount
up to 100% of the outstanding principal amount of the Loan. At the Authority’s sole discretion, and
subject to subparagraph (10)(b)(i), below, and only if the amount forgiven is 100% of the
outstanding principal of the Loan, the Authority also may waive payment of interest accrued on the
amount of principal forgiven through the Effective Date of Post-Closing Principal Forgiveness
defined in Paragraph 10(b)(i)). The Authority will provide written notice (the “Notice of Post-
Closing Principal Forgiveness”) to the Governmental Agency once the Authority determines to
exercise its discretion to grant Post-Closing Principal Forgiveness, that funds are available, and that
the Governmental Agency is eligible for such action. The Notice of Post-Closing Principal
Forgiveness will set forth the amount, up to 100%, of the outstanding principal amount of the Loan
to be forgiven, and whether any accrued interest will be waived. Upon the Governmental Agency’s
receipt of the Notice of Post-Closing Principal Forgiveness from the Authority, the following terms
shall apply:
i) If 100% of the principal amount of the Loan is forgiven, then:
A. The award of Post-Closing Principal Forgiveness shall be effective as of the date of the
Notice of Post-Closing Principal Forgiveness (the “Effective Date of 100% Principal
Forgiveness”);
B. The Authority shall amend the repayment schedule set forth in Exhibit C to acknowledge
the Post-Closing Principal Forgiveness award and the Effective Date of 100% Principal
Forgiveness and the waiver of any accrued interest as applicable;
C. The Authority shall amend the Loan Term to extend from the date of Loan Execution until
the date the Water Quality Control Division of the Colorado Department of Health and
Environment (the “WQCD”) issues certification that all required documents have been
submitted and the Governmental Agency has met all Project and Loan requirements;
D. The Governmental Agency Bond will be released at the expiration of the Loan Term, as
amended; and
E. As of the Effective Date of 100% Principal Forgiveness, the following Loan Agreement
sections will no longer apply: Section 2.02. (n) Audits; Section 3.03. Amounts Payable;
Exhibit A (3) Pledged Property; Exhibit F (1) Rate Covenant; Exhibit B (5) Loan Term;
Exhibit B (6) Interest Rate; Exhibit B (8) Loan Repayment Commencement Date; Exhibit C
Repayment Schedule; and all references thereof.
ii) If the Governmental Agency receives Post-Closing Principal Forgiveness for less than 100%
of the outstanding principal amount of the Loan, then:
A. The Effective Date of the Post-Closing Principal Forgiveness shall be the date of the Notice
of Post-Closing Principal Forgiveness from the Authority (the “Effective Date of Partial
Principal Forgiveness”); and
B-3
B. Upon the Effective Date of Partial Principal Forgiveness, the Loan Term shall remain as set
forth in this Loan Agreement, but the Authority shall amend the Loan Repayment Schedule
set forth in Exhibit C to include a revised amortization schedule for the remaining principal
amount.
C. If the Effective Date of Principal Forgiveness, either 100% or Partial, occurs after the Loan
Repayment Commencement Date, and the Governmental Agency has paid one or more of
the scheduled payments, the Post-Closing Principal Forgiveness, as well as any waived
interest accrued on the amount of principal forgiven through the Effective Date of Principal
Forgiveness, will be net of any such payments. The Authority will not reimburse the
Governmental Agency any amount paid by the Governmental Agency.
LOAN DATE:TBD
TOTAL LOAN AMOUNT:$5,000,000.00 INTEREST DATE:TBD
Total Loan Amount is Comprised Of:
UP-FRONT BIL PRINCIPAL FORGIVENESS:$1,500,000.00
REPAYABLE BIL LOAN PRINCIPAL (A) AMOUNT:$838,077.02
REPAYABLE BASE LOAN PRINCIPAL (B) AMOUNT:$2,661,922.98
3,500,000.00
INTEREST RATE:3.250%
TERM (YEARS):20
PAYMENT REMAINING CALCULATED
DATES PAYMENT PRINCIPAL PRINCIPAL INTEREST
3,500,000.00
5/1/2025 $30,585.28 $16,050.56 $3,483,949.44 $14,534.72
11/1/2025 $121,309.55 $64,695.37 $3,419,254.07 $56,614.18
5/1/2026 $121,309.55 $65,746.67 $3,353,507.40 $55,562.88
11/1/2026 $121,309.55 $66,815.05 $3,286,692.35 $54,494.50
5/1/2027 $121,309.55 $67,900.80 $3,218,791.55 $53,408.75
11/1/2027 $121,309.55 $69,004.19 $3,149,787.36 $52,305.36
5/1/2028 $121,309.55 $70,125.51 $3,079,661.85 $51,184.04
11/1/2028 $121,309.55 $71,265.04 $3,008,396.81 $50,044.51
5/1/2029 $121,309.55 $72,423.10 $2,935,973.71 $48,886.45
11/1/2029 $121,309.55 $73,599.98 $2,862,373.73 $47,709.57
5/1/2030 $121,309.55 $74,795.98 $2,787,577.75 $46,513.57
11/1/2030 $121,309.55 $76,011.41 $2,711,566.34 $45,298.14
5/1/2031 $121,309.55 $77,246.60 $2,634,319.74 $44,062.95
11/1/2031 $121,309.55 $78,501.85 $2,555,817.89 $42,807.70
5/1/2032 $121,309.55 $79,777.51 $2,476,040.38 $41,532.04
11/1/2032 $121,309.55 $81,073.89 $2,394,966.49 $40,235.66
5/1/2033 $121,309.55 $82,391.34 $2,312,575.15 $38,918.21
11/1/2033 $121,309.55 $83,730.20 $2,228,844.95 $37,579.35
5/1/2034 $121,309.55 $85,090.82 $2,143,754.13 $36,218.73
11/1/2034 $121,309.55 $86,473.55 $2,057,280.58 $34,836.00
5/1/2035 $121,309.55 $87,878.74 $1,969,401.84 $33,430.81
11/1/2035 $121,309.55 $89,306.77 $1,880,095.07 $32,002.78
5/1/2036 $121,309.55 $90,758.01 $1,789,337.06 $30,551.54
11/1/2036 $121,309.55 $92,232.82 $1,697,104.24 $29,076.73
5/1/2037 $121,309.55 $93,731.61 $1,603,372.63 $27,577.94
11/1/2037 $121,309.55 $95,254.74 $1,508,117.89 $26,054.81
5/1/2038 $121,309.55 $96,802.63 $1,411,315.26 $24,506.92
11/1/2038 $121,309.55 $98,375.68 $1,312,939.58 $22,933.87
5/1/2039 $121,309.55 $99,974.28 $1,212,965.30 $21,335.27
11/1/2039 $121,309.55 $101,598.86 $1,111,366.44 $19,710.69
5/1/2040 $121,309.55 $103,249.85 $1,008,116.59 $18,059.70
11/1/2040 $121,309.55 $104,927.66 $903,188.93 $16,381.89
5/1/2041 $121,309.55 $106,632.73 $796,556.20 $14,676.82
11/1/2041 $121,309.55 $108,365.51 $688,190.69 $12,944.04
5/1/2042 $121,309.55 $110,126.45 $578,064.24 $11,183.10
11/1/2042 $121,309.55 $111,916.01 $466,148.23 $9,393.54
5/1/2043 $121,309.55 $113,734.64 $352,413.59 $7,574.91
11/1/2043 $121,309.55 $115,582.83 $236,830.76 $5,726.72
5/1/2044 $121,309.55 $117,461.05 $119,369.71 $3,848.50
11/1/2044 $121,309.47 $119,369.71 $0.00 $1,939.76
Total $4,761,657.65 $3,500,000.00 $1,261,657.65
C-1
LOAN REPAYMENT SCHEDULE
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE
Loan Number: #DBS25----
TOTAL REPAYABLE LOAN AMOUNT:
On or before the first of each date, commencing on May 1, 2025, the
Governmental Agency shall pay the amount set forth below:
EXHIBIT C
DRINKING WATER REVOLVING FUND
D-1
EXHIBIT D
GOVERNMENTAL AGENCY BOND
FOR VALUE RECEIVED, the undersigned TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE (the
Governmental Agency”), hereby promises to pay to the order of the COLORADO WATER
RESOURCES AND POWER DEVELOPMENT AUTHORITY (the "Authority") the
principal amount of Five Million and 00/100 Dollars ($5,000,000.00), less a One Million Five
Hundred Thousand and 00/100 Dollars ($1,500,000.00) reduction in the total principal of the
Loan due to the application of Bipartisan Infrastructure Law (“BIL”) Up-Front Principal
Forgiveness set forth in Exhibit B, Part (4)(a) of the Loan Agreement dated ____, 2025, by and
between the Authority and the Governmental Agency (the "Loan Agreement"), making the
Maximum Total Principal to be Repaid, after Application of Up-Front Principal Forgiveness,
Three Million Five Hundred Thousand and 00/100 Dollars ($3,500,000.00), as set forth in
Exhibit B, Part (4)(b) of the Loan Agreement, or such lesser amount as shall be loaned to the
Governmental Agency pursuant to the Loan Agreement, at the times and in the amounts
determined as provided in the Loan Agreement, at Three and One-Quarter percent (3.25%)
interest, subject to late charges on late payments as provided in Section 3.03 (b) of the Loan
Agreement, and payable on the dates and in the amounts determined as provided in the Loan
Agreement.
This Governmental Agency Bond is issued pursuant to the Loan Agreement and is issued in
consideration of the loan made thereunder (the "Loan") and to evidence the obligations of the
Governmental Agency set forth in Section 3.03 thereof. This Governmental Agency Bond is
subject to assignment or endorsement in accordance with the terms of the Loan Agreement. All
of the definitions, terms, conditions, and provisions of the Loan Agreement are, by this reference
thereto, incorporated herein as a part of this Governmental Agency Bond.
Pursuant to the Loan Agreement, disbursements to the Governmental Agency shall be made
in accordance with written instructions upon the receipt by the Authority of requisitions from the
Governmental Agency executed and delivered in accordance with the requirements set forth in
Section 3.02 of the Loan Agreement.
This Governmental Agency Bond is entitled to the benefits, and is subject to the conditions,
of the Loan Agreement. The obligations of the Governmental Agency to make the payments
required hereunder shall be absolute and unconditional without any defense or right of set-off,
counterclaim, or recoupment by reason of any default by the Authority under the Loan
Agreement, or under any other agreement between the Governmental Agency and the Authority,
or out of any indebtedness or liability at any time owing to the Governmental Agency by the
Authority, or for any other reason.
This Governmental Agency Bond is subject to optional prepayment under the terms and
conditions, and in the amounts, provided in Section 3.07 of the Loan Agreement. The obligation
of the Governmental Agency to make payments under the Loan Agreement and this
Governmental Agency Bond is payable solely from the Pledged Property, except for reserves
created in connection with the Loan.
D-2
This Governmental Agency Bond does not constitute a debt or an indebtedness of the
Governmental Agency or the Town of Estes Park, Colorado, within the meaning of any
constitutional or statutory limitation or provision, and shall not be considered or held to be a
general obligation of the Governmental Agency or the Town of Estes Park, Colorado. The
payment of this Governmental Agency Bond is not secured by an encumbrance, mortgage or
other pledge of property except for such property and moneys pledged for the payment of this
Governmental Agency Bond.
For the payment of this Governmental Agency Bond, the Governmental Agency shall
enforce the Rate Covenant set forth in Paragraph (1) of Exhibit F to the Loan Agreement, shall
promptly collect all revenues of the System, and shall take all necessary action to collect any
revenues that are in default.
If an “Event of Default” as defined in Section 5.01 of the Loan Agreement occurs, the
remedies on default set forth in Section 5.03 of the Loan Agreement shall be available to enforce
the obligations of the Governmental Agency that are evidenced by this Governmental Agency
Bond.
This Governmental Agency Bond is issued under the authority of and in full conformity with
the Constitution and laws of the State of Colorado, including without limitation, Article X,
Section 20 of the Constitution, Title 31, Article 35, Part 4, C.R.S.; Title 37, Article 45.1, C.R.S.;
certain provisions of Title 11, Article 57, Part 2, C.R.S. (the “Supplemental Public Securities
Act”), and pursuant to the Loan Agreement. Pursuant to §11-57-210, of the Supplemental Public
Securities Act, this recital is conclusive evidence of the validity and regularity of the issuance of
the Governmental Agency Bond after its delivery for value. Pursuant to §31-35-413, C.R.S., this
recital conclusively imparts full compliance with all the provisions of Title 31, Article 35, Part 4,
C.R.S., and this Governmental Agency Bond issued containing such recital is incontestable for
any cause whatsoever after its delivery for value.
IN WITNESS WHEREOF, the Governmental Agency has caused this Governmental Agency
Bond to be duly executed, sealed and delivered, as of this ___ day of __________ 2025.
SEAL)
TOWN OF ESTES PARK, COLORADO,
ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE
ATTEST:
By: _______________________________
Mayor
By: __________________________
Town Clerk
E-1-1
EXHIBIT E-1
OPINION OF GOVERNMENTAL AGENCY COUNSEL
LETTERHEAD OF COUNSEL TO GOVERNMENTAL AGENCY]
DATED : Closing Date]
Colorado Water Resources and
Power Development Authority
Gentlemen:
I am an attorney admitted to practice in the State of Colorado and I have acted as counsel to
the TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS
WATER ACTIVITY ENTERPRISE (the "Governmental Agency"), which has entered into a
Loan Agreement (as hereinafter defined) with the COLORADO WATER RESOURCES AND
POWER DEVELOPMENT AUTHORITY (the "Authority"), and have acted as such in
connection with the authorization, execution and delivery by the Governmental Agency of the
Loan Agreement and Governmental Agency Bond (as hereinafter defined).
In so acting, I have examined the Constitution and laws of the State of Colorado and the
proceedings relating to organization of the Governmental Agency. I have also examined
originals, or copies certified or otherwise identified to my satisfaction, of the following:
a) the Loan Agreement, dated ___________ (the "Loan Agreement") by and between the
Authority and the Governmental Agency;
b) the proceedings of the governing body of the Governmental Agency relating to the
approval of the Loan Agreement and the execution, issuance and delivery thereof on behalf
of the Governmental Agency, and the authorization of the undertaking and completion of the
Project (as defined in the Loan Agreement);
c) the Governmental Agency Bond, dated _____________ (the "Governmental Agency
Bond") issued by the Governmental Agency to the Authority to evidence the Loan (as
defined in the Loan Agreement;
d) the proceedings of the governing body of the Governmental Agency relating to the
issuance of the Governmental Agency Bond and the execution, issuance and delivery thereof
to the Authority (the Loan Agreement and the Governmental Agency Bond are referred to
herein collectively as the "Loan Documents"); and
e) all outstanding instruments relating to the bonds, notes or other indebtedness of or
relating to the Governmental Agency.
E-1-2
I have also examined and relied upon originals, or copies certified or otherwise authenticated
to my satisfaction, of such other records, documents, certificates and other instruments, and
made such investigation of law as in my judgment I have deemed necessary or appropriate to
enable me to render the opinions expressed below.
For the purpose of this opinion, I have assumed, without relying upon any representations
from the Authority, that funds to be provided for Principal Forgiveness (as defined in the Loan
Agreement), whether provided directly from the Federal State Revolving Fund Capitalization
grant (less State of Colorado matching funds), from funds received under the Infrastructure
Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL), or from
re-loan funds (Federal State Revolving Fund Capitalization grant funds previously loaned to
governmental agencies for purposes of a project and then repaid under the terms of a loan
agreement with the Authority), are Federal Funds.
Based upon the foregoing, I am of the opinion that:
1) The Governmental Agency is a "governmental agency" within the meaning of the
Authority's enabling legislation and is a water activity enterprise with the full legal right and
authority to execute the Loan Documents.
2) The Governmental Agency has the full legal right and authority to carry on the business
of the System (as defined in the Loan Agreement) as currently being conducted and as
proposed to be conducted, and to undertake and complete the Project.
3) The proceedings of the Governmental Agency's governing body authorizing the
Governmental Agency to undertake and complete the Project were duly and lawfully adopted
and approved in accordance with applicable Colorado law at meetings duly called pursuant to
necessary public notice and held in accordance with applicable Colorado law at which
quorums were present and acting throughout and were published in accordance with
applicable Colorado law.
4) The proceedings of the Governmental Agency's governing body approving the Loan
Documents and authorizing their execution, issuance and delivery on behalf of the
Governmental Agency were duly and lawfully adopted and approved in accordance with
applicable Colorado law, at meetings duly called pursuant to necessary public notice and held
in accordance with applicable Colorado law at which quorums were present and acting
throughout and were published in accordance with applicable Colorado law.
5) To the best of my knowledge, after such investigation as I have deemed appropriate, the
authorization, execution and delivery of the Loan Documents by the Governmental Agency,
the observation and performance by the Governmental Agency of its duties, covenants,
obligations and agreements thereunder and the consummation of the transactions
contemplated therein and the undertaking and completion of Project do not and will not con-
travene any existing law or any existing order, injunction, judgment, decree, rule or
regulation of any court or governmental or administrative agency, authority or person having
jurisdiction over the Governmental Agency or its property or assets or result in a breach or
violation of any of the terms and provisions of, or constitute a default under, any existing
bond resolution, trust agreement, indenture, mortgage, deed of trust, ordinance, order, or
E-1-3
other agreement to which the Governmental Agency is a party or by which it, the System, or
its property or assets is bound.
6) To the best of my knowledge, after such investigation as I have deemed appropriate, all
approvals, consents or authorizations of, or registrations of or filings with, any governmental
or public agency, authority or person required to date on the part of the Governmental
Agency in connection with the authorization, execution, delivery and performance of the
Loan Documents and the undertaking and completion of the Project, other than licenses and
permits relating to the construction and acquisition of the Project which I expect the
Governmental Agency to receive in the ordinary course of business, have been obtained or
made.
7) To the best of my knowledge, after such investigation as I have deemed appropriate,
except as disclosed in writing to the Authority, there is no litigation or other proceeding
pending or threatened in any court or other tribunal of competent jurisdiction (either State or
Federal) that (1) questions the creation, organization or existence of the Governmental
Agency; or the validity, legality or enforceability of the Loan Documents; or the undertaking
or completion of the Project; or (2) if adversely determined, could (a) materially adversely
affect (i) the financial position of the Governmental Agency; (ii) the ability of the
Governmental Agency to perform its obligations under the Loan Documents; (iii) the security
for the Loan Documents; or (iv) the transactions contemplated by the Loan Documents; or
b) impair the ability of the Governmental Agency to maintain and operate its system.
This opinion is rendered on the basis of Federal law and the laws of the State of Colorado as
enacted and construed on the date hereof. I express no opinion as to any matter not set forth in
the numbered paragraphs herein.
I hereby authorize Carlson, Hammond, & Paddock, L.L.C., General Counsel to the
Authority, to rely on this opinion as if I had addressed this opinion to them in addition to you.
Very truly yours,
E-2-1
EXHIBIT E-2
OPINION OF GOVERNMENTAL AGENCY BOND COUNSEL
LETTERHEAD OF BOND COUNSEL TO GOVERNMENTAL AGENCY]
DATED: Closing Date]
Colorado Water Resources and
Power Development Authority
Gentlemen:
We are attorneys admitted to practice in the State of Colorado and we have acted as bond
counsel for the TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH
ITS WATER ACTIVITY ENTERPRISE (the "Governmental Agency"), which has entered
into a Loan Agreement (as hereinafter defined) with the COLORADO WATER RESOUR-
CES AND POWER DEVELOPMENT AUTHORITY (the "Authority"), and have acted as
such in connection with the authorization, execution, and delivery by the Governmental Agency
of the Loan Agreement and Governmental Agency Bond (as hereinafter defined).
In so acting we have examined the Constitution and laws of the State of Colorado that we
deemed relevant and the proceedings relating to organization of the Governmental Agency. We
have also examined originals, or copies certified or otherwise identified to our satisfaction, of the
following:
a) the Loan Agreement, dated _____________ (the "Loan Agreement"), by and between the
Authority and the Governmental Agency;
b) the proceedings of the governing body of the Governmental Agency relating to the
approval of the Loan Agreement, and the execution and delivery thereof by the Govern-
mental Agency;
c) the Governmental Agency Bond, dated _____________ (the "Governmental Agency
Bond"), issued by the Governmental Agency to the Authority to evidence the Loan (as
defined in the Loan Agreement);
d) the proceedings of the governing body of the Governmental Agency relating to the
issuance of the Governmental Agency Bond, and the execution, issuance, and delivery
thereof to the Authority (the Loan Agreement and the Governmental Agency Bond are
referred to herein collectively as the "Loan Documents"); and
e) all outstanding instruments relating to the bonds, notes, or other indebtedness of, or
relating to the Governmental Agency of which we were made aware after reasonable inquiry.
E-2-2
We have also examined and relied upon originals, or copies certified or otherwise
authenticated to our satisfaction, of such other records, documents, certificates, and other
instruments, and made such investigation of law as in our judgment we have deemed necessary
or appropriate to enable us to render the opinions expressed below. As to questions of fact
material to our opinions, we have relied upon the proceedings and other certifications of public
officials furnished to us, without undertaking to verify the same by independent investigation.
For the purpose of this opinion, we have assumed, without relying upon any representation of the
Authority, that funds to be provided for Principal Forgiveness (as defined in the Loan
Agreement), whether provided directly from the Federal State Revolving Fund Capitalization
grant (less State of Colorado matching funds), from funds received under the Infrastructure
Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL), or from
re-loan funds (Federal State Revolving Fund Capitalization grant funds previously loaned to
governmental agencies for purposes of a project and then repaid under the terms of a loan
agreement with the Authority), are Federal funds.
Based upon the foregoing, we are of the opinion, as of the date hereof and under existing law,
that:
1) The Governmental Agency is a "governmental agency" within the meaning of the
Authority's enabling legislation.
2) The Governmental Agency has full legal right and authority to execute the Loan
Documents and the Governmental Agency has full legal right and authority to observe and
perform its respective duties, covenants, obligations, and agreements thereunder; subject,
however, to the effect of, and to restrictions and limitations imposed by or resulting from,
bankruptcy, insolvency, moratorium, reorganization, debt adjustment, or other similar laws
affecting creditors' rights generally (collectively, “Creditor's Rights Limitations”), heretofore
or hereafter enacted or other laws, judicial decisions and principles of equity relating to the
enforcement of contractual obligations generally.
3) The Governmental Agency has pledged the Pledged Property described in Paragraph (3)
of Exhibit A to the Loan Agreement for the punctual payment of the principal on the Loan
and all other amounts due under the Loan Documents according to their respective terms, and
the Authority has a first lien on such Pledged Property, but not an exclusive first lien. No
filings or recordings are required under the Colorado Uniform Commercial Code in order to
provide a first lien on such Pledged Property, and all actions have been taken as required
under Colorado law to insure the priority, validity, and enforceability of such lien.
4) The Loan Documents have been duly authorized, executed, and delivered by the
authorized officers of the Governmental Agency; and, assuming in the case of the Loan
Agreement, that the Authority has all the requisite power and authority to authorize, execute
and deliver, and has duly authorized, executed, and delivered, the Loan Agreement, the Loan
Documents constitute the legal, valid, and binding obligations of the Governmental Agency
enforceable in accordance with their respective terms; subject, however, to the effect of, and
to restrictions and limitations imposed by, or resulting from, Creditor's Rights Limitations or
other laws, judicial decisions, and principles of equity relating to the enforcement of
contractual obligations generally, provided that no opinion is expressed herein regarding the
validity or enforceability of Section 3.06 of the Loan Agreement or any other provision
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thereof that purports to require the Governmental Agency to indemnify or hold any party
harmless.
5) To the best of our knowledge, after such investigation as we have deemed appropriate,
the authorization, execution, and delivery of the Loan Documents by the Governmental
Agency, the observance and performance by the Governmental Agency of its duties,
covenants, obligations, and agreements thereunder, and the consummation of the transactions
contemplated therein, do not and will not contravene any existing law, or result in a breach or
violation of any of the terms and provisions of, or constitute a default under, any outstanding
instruments relating to the bonds, notes, or other indebtedness of, or relating to, the
Governmental Agency.
6) To the best of our knowledge, after such investigation as we deemed appropriate, all
approvals, consents, or authorizations of, or registrations of or filings with, any governmental
or public agency, authority, or person required to date on the part of the Governmental
Agency in connection with the authorization, execution, delivery, and performance of the
Loan Documents have been obtained or made.
7) The execution and delivery of the Loan Documents are not subject to the limitations of
Article X, Section 20 of the Colorado Constitution, since the Governmental Agency, as of the
date hereof, constitutes an enterprise under said Article X, Section 20. The performance of
the obligations of the Governmental Agency under the Loan Documents is not subject to the
limitations of said Article X, Section 20, as long as the Governmental Agency continues to
qualify as an enterprise under said Article X, Section 20. If the Governmental Agency ceases
to be an enterprise under said Article X, Section 20, during the Loan Term (as defined in the
Loan Agreement), the Loan Documents will continue to constitute legal, valid and binding
obligations of the Governmental Agency enforceable in accordance with their respective
terms; subject, however, to (a) Creditor's Rights Limitations or other laws, judicial decisions
and principles of equity relating to the enforcement of contractual obligations generally and
b) subject to the next sentence, the revenue and spending limitations of said Article X,
Section 20. If the Governmental Agency at any time ceases to be an enterprise under said
Article X, Section 20, (i) the Governmental Agency may continue to impose and increase
fees, rates and charges without voter approval; (ii) all revenues of the Governmental Agency
used to pay Loan Repayments (as defined in the Loan Agreement) will be included in the
Governmental Agency’s fiscal year spending limit under Section 7(d) of said Article X,
Section 20, except that debt service changes and reductions are exceptions to, and not part of,
the Governmental Agency’s revenue and spending base and limits; and (iii) if the
Governmental Agency is required to reduce spending in order to comply with its fiscal year
spending limit under Section 7(b) of said Article X, Section 20, the Governmental Agency
will first be required to reduce spending for purposes for which it does not have an obligation
under law or by contract prior to reducing spending required to comply with the other
covenants contained in the Loan Documents.
The opinions set forth in paragraphs numbered 2, 4 and 5 above are further qualified and
limited to the extent that we express no opinion as to the authority of the Governmental Agency
to agree to perform, or as to the enforceability of, the following provisions of the Loan
Agreement and of the Governmental Agency Bond (to the extent such provisions of the Loan
Agreement are incorporated in the Governmental Agency Bond):
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a) Section 2.02(o) to the extent it purports to waive sovereign immunity;
b) Section 3.05 to the extent that it provides that the Loan Agreement is
enforceable despite the failure of consideration;
c) Section 3.06 or any other provision of the Loan Agreement to the extent
that it requires the Governmental Agency to indemnify or hold harmless
the Authority or any other person; and
d) Section 5.03 or any other provision of the Loan Agreement to the extent
that the Authority is allowed to accelerate the obligations of the
Governmental Agency upon an Event of Default (as defined in the Loan
Agreement).
In addition, the enforceability of the Loan Agreement and the Governmental Agency Bond is
subject to judicial discretion, to the exercise by the State of Colorado and its governmental
bodies of the police power inherent in the sovereignty of the State, and to the exercise by the
United States of America of the powers delegated to it by the Constitution of the United States of
America.
This opinion is rendered on the basis of the laws of the State of Colorado as enacted and
construed on the date hereof. We express no opinion as to any matter not set forth in the
numbered paragraphs herein. In addition, we express no opinion as to the compliance by the
Town of Estes Park or the Governmental Agency with existing laws and regulations governing
the bidding, construction or operation of the Project (as defined in the Loan Agreement) or the
sufficiency of the Pledged Property for payment of the Loan.
We hereby authorize Carlson, Hammond & Paddock, L.L.C., General Counsel to the
Authority, to rely on this opinion as if we had addressed this opinion to them in addition to you.
Very truly yours,
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EXHIBIT F
ADDITIONAL COVENANTS AND REQUIREMENTS
1) Rate Covenant.
The Governmental Agency shall establish and collect such rates, fees, and charges for the
use or the sale of the products and services of the System as, together with other moneys
available therefor, are expected to produce Gross Revenue (as defined in Paragraph (3) of
Exhibit A to this Loan Agreement) for each calendar year that will be at least sufficient
for such calendar year to pay the sum of:
a) all amounts estimated to be required to pay Operation and Maintenance Expenses
as defined in Paragraph (3) of Exhibit A of this Loan Agreement) during such
calendar year;
b) a sum equal to 110% of the debt service due on the Governmental Agency Bond
for such calendar year and debt service coming due during such calendar year on any
obligations secured by a lien on the Pledged Property which lien is on a parity with
the lien of this Loan Agreement on the Pledged Property, in each case computed as of
the beginning of such calendar year;
c) the amount, if any, to be paid during such calendar year into any debt service
reserve account in connection with any obligations secured by a lien on the Pledged
Property which lien is on a parity with the lien of this Loan Agreement on the
Pledged Property;
d) a sum equal to the debt service on any obligations secured by a lien on the
Pledged Property which lien is subordinate to the lien of this Loan Agreement on the
Pledged Property for such calendar year computed as of the beginning of such
calendar year; and
e) amounts necessary to pay and discharge all charges and liens or other
indebtedness not described above payable out of the Gross Revenue during such
calendar year.
2) Rate Study.
In the event that Gross Revenue collected during a fiscal year is not sufficient to meet the
requirements set forth in the Rate Covenant contained in Paragraph (1) of this Exhibit F to this
Loan Agreement, the Governmental Agency shall, within 90 days of the end of such fiscal year,
cause an independent firm of accountants or consulting engineers, to prepare a rate study for the
purpose of recommending a schedule of rates, fees, and charges for the use of the System that, in
the opinion of the firm conducting the study, will be sufficient to provide Gross Revenue to be
collected in the next succeeding fiscal year that will provide compliance with the Rate Covenant
described in Paragraph (1) of this Exhibit F to this Loan Agreement. Such a study shall be
F-2
delivered to the Authority. The Governmental Agency shall within six months of receipt of such
study, adopt rates, fees, and charges for the use of the System, based upon the recommendations
contained in such study, that provide compliance with said Rate Covenant. Notwithstanding the
foregoing, the Authority may, from time to time, in its sole and absolute discretion and pursuant
to such terms and restrictions it may specify, waive in writing the requirement that a rate study
be performed by the Governmental Agency.
3) Additional Bonds.
a) Senior Lien Bonds. The Governmental Agency covenants that it will not issue any
obligations payable out of, or secured by a lien or charge on, the Pledged Property that is
superior to the lien or charge of this Loan Agreement on the Pledged Property.
b) Parity Lien Bonds. The Governmental Agency covenants that it will not issue any
obligations payable out of, or secured by a lien or charge on, the Pledged Property that is on a
parity with the lien or charge of this Loan Agreement on the Pledged Property, unless the
Governmental Agency certifies to the Authority that Net Revenue (as defined in Paragraph (3) of
Exhibit A to this Loan Agreement) for any 12 consecutive months out of the 18 months
preceding the month in which such obligations are to be issued was at least equal to the sum of
a) 110% of the maximum annual debt service due in any one year on (i) this Loan Agreement
and (ii) all other outstanding obligations of the Governmental Agency payable out of, or secured
by a lien or charge on, the Pledged Property that is on a parity with the lien or charge of this
Loan Agreement on the Pledged Property, and (iii) such proposed obligations to be issued, and
b) the maximum annual debt service due in any one year on all obligations payable out of, or
secured by a lien or charge on, the Pledged Property that is subordinate to the lien or charge of
this Loan Agreement on the Pledged Property.
c) Subordinate Lien Bonds. The Governmental Agency covenants that it will not
issue any obligations payable out of, or secured by a lien or charge on, the Pledged Property that
is subordinate to the lien or charge of this Loan Agreement on the Pledged Property, unless the
Governmental Agency certifies to the Authority that, for any 12 consecutive months out of the
18 months preceding the month in which such obligations are to be issued, Net Revenue (as
defined in Paragraph (3) of Exhibit A to this Loan Agreement) was at least 100% of the
maximum annual debt service due in any one year on (a) all obligations outstanding during such
period that are payable out of, or secured by a lien or charge on, the Pledged Property and (b)
such proposed obligations to be issued.
d) Net Revenue Adjustment. In calculating revenue coverage for purposes of the
issuance of additional parity or subordinate lien bonds, the Governmental Agency may adjust
Net Revenue to reflect any rate increases adopted in connection with the issuance of additional
obligations by adding to the actual Net Revenue for the period examined an estimated sum equal
to 100% of the estimated increase in Net Revenue that would have been realized during such
period had the adopted rate increase been in effect during all of such period.
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e) Refunding Bonds. Notwithstanding the foregoing, the Governmental Agency may
issue refunding obligations payable out of, or secured by a lien or charge on, the Pledged
Property, without compliance with the requirements stated above, provided that the debt service
payments on such refunding obligations do not exceed the debt service payments on the refunded
obligations during any calendar year.
4) Lien Representation. The Governmental Agency has disclosed the following bonds,
notes or other evidence of indebtedness of the Governmental Agency issued, or contractual
obligations incurred, having a lien on the Pledged Property, or a portion thereof, of equal rank
with the lien and charge on the Pledged Property of the Governmental Agency Bond:
5,494,410.09 Town of Estes Park, Colorado, acting by and through its Water Activity
Enterprise, Governmental Agency Bond dated June 12, 2008, issued to the Colorado Water
Resources and Power Development Authority; $658,000.00 Town of Estes Park, Colorado,
acting by and through its Water Activity Enterprise, Water Revenue Bond, Series 2020, dated
July 15, 2020, issued to the United States of America acting through the Department of
Agriculture, and payable solely from a Capital Cost Fee to be paid monthly per lot by the users
of the Town’s water distribution system in the Park Entrance Estates neighborhood, which Fee is
to be deposited in a separate Bond Account established under the issuing Ordinance No. 02-20;
and $4,493,000.00 Town of Estes Park, Colorado, acting by and through its Water Activity
Enterprise, Construction Loan Note (Prospect Mountain Water Distribution Project, Series
2022A, dated October 11, 2022, issued to CoBank, ACB,, and payable from the Net Revenues
as defined in the Construction Loan Agreement dated October 11, 2022, between the Town of
Estes Park, Colorado, acting by and through its Water Activity Enterprise, and CoBank,
ACB,(collectively, the “Parity Lien Obligations”). The Pledged Property is free and clear of any
pledge, lien, charge, or encumbrance thereon, or with respect thereto, other than that of the Parity
Lien Obligations, that is of equal rank with the obligation of the Governmental Agency Bond.
Further, the Pledged Property is free and clear of any pledge, lien, charge, or encumbrance
thereon, or with respect thereto, that is prior to the obligation of the Governmental Agency Bond.
5) Operation and Maintenance Reserve Fund. The Governmental Agency shall maintain
an operation and maintenance reserve in an amount equal to three months of operation and
maintenance expenses, excluding depreciation, of the System as set forth in the annual budget for
the current fiscal year. Said reserve may be in the form of unobligated fund balances, or other
unobligated cash or securities (i.e. capital reserves), or may be in a separate segregated fund and
shall be maintained as a continuing reserve for payment of any lawful purpose relating to the
System. If the operation and maintenance reserve falls below this requirement, the shortfall shall
be made up in 24 substantially equal monthly installments beginning the second month after such
shortfall.
6) Davis Bacon & Related Acts (DBRA). The Governmental Agency will comply with
the requirements of the Davis Bacon & Related Acts, codified at 40 U.S.C. §§ 3140 through
3148.
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7) Cost Overruns. Any cost overruns associated with the Project will be the responsibility
of the Governmental Agency and any additional costs to defend against contract claims will not
be reimbursed through this or any future funding.
8) Audit Requirements. For each year in which the Governmental Agency requests a
disbursement from the Project Loan Subaccount, the Governmental Agency shall conduct its
annual audit in accordance with the federal Single Audit Act, 31 U.S.C. 7501 et seq.
9) American Iron and Steel Requirement. The Governmental Agency will comply with
all federal requirements applicable to the Loan, including Section 436 of P.L. 113-76,
Consolidated Appropriations Act, 2014, (the “Appropriations Act”) and related State Revolving
Fund Policy Guidelines, which require that all of the iron and steel products (as defined in the
Appropriations Act and Guidelines) used in the Project must be produced in the United States
unless the Governmental Agency has requested and received a waiver from the requirement
pursuant to the “waiver process” described in the Appropriations Act and Guidelines.
10) Construction Schedule.
The Governmental Agency has provided the following estimated dates regarding the project:
a) Advertisement for Bids Publication Date: January 30, 2025
b) Construction Contract Award Date: April 9, 2025
c) Construction Start Date: April 28, 2025
d) Construction Completion Date: November 20, 2026
11) Technical Managerial and Financial Capacity Requirement. As described in the
Technical/Managerial/Financial (TMF) Capacity Evaluation Report dated August 6, 2024, there
are no mandatory requirements.
12) Build America, Buy America Act. The Governmental Agency will comply with the
requirements of the Build America Buy America Act, enacted as part of the Bipartisan
Infrastructure Law, including guidance for implementing the BABA Act provided by the Office
of Management and Budget, where applicable. BABA establishes domestic content procurement
preference requirements for federal financial assistance provided through the Clean Water and
Drinking Water State Revolving Funds including that iron, steel, manufactured products, and
construction materials used in covered projects are produced in the United States unless the
Governmental Agency has requested and received a waiver from the federal government.
13) Bipartisan Infrastructure Law. The Governmental Agency will comply with all federal
requirements applicable to the Bipartisan Infrastructure Law (the Infrastructure Investment and
Jobs Act) (Public Law 117-58) and related regulations and guidance, during the Loan Term.
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EXHIBIT G
DWRF Form of Requisition
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER
ACTIVITY ENTERPRISE (the “Governmental Agency”)
Please submit to the following addresses:
Submit Online To:
https://ceos.colorado.gov/CO/CEOS/Public/Client/CO_CIMPLE/Shared/Pages/Main/Login.aspx
If there are any questions or technical issues, please submit your backup document via one of the methods
below.
Email To: cdphe_grantsandloans@state.co.us (preferred backup method)
Or Mail To: Colorado Department of Public Health and Environment
Grants and Loans Unit WQCD-OA-B2
Attn: Project Manager
4300 Cherry Creek Drive South
Denver, Colorado 80246-1530
Or Fax To: 303-782-0390 (Call CDPHE Project Manager to confirm delivery)
Cc: CDPHE Project Manager
Cc: E-mail requisition form (Exhibit G) to the Colorado Water Resources and Power
Development Authority at requisitions@cwrpda.com
This requisition is made in accordance with Section 3.02 of the Loan Agreement executed by the
Colorado Water Resources and Power Development Authority on __________, 2025. Terms defined in
the Loan Agreement and not otherwise defined herein shall have the same meanings when used herein.
The Governmental Agency hereby states as follows:
1. This is Requisition No____________________________________________.
2. The amount requisitioned hereunder is_____________________________.
3. The person, firm or corporation to whom the amount requisitioned is due, or to whom a
reimbursable advance has been made, is ______________________.
4. The payee of the requisitioned amount is___________________________.
5. The manner of payment to the payee is to be wire transferred to:
Bank:
ABA No.:
Account No.:
Account Name:
Contact:
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6. Attached hereto is the appropriate documentation demonstrating that the amount requisitioned
hereunder is currently due or has been advanced by the Governmental Agency.
7. The amount hereby requisitioned is a proper Cost of the Project to be paid only from amounts
deposited in the Project Loan Account established for the Governmental Agency in the Drinking
Water Revolving Fund.
8. On the date hereof, there does not exist any Event of Default under the Loan Agreement nor any
condition which, with the passage of time or the giving of notice, or both, would constitute an
Event of Default thereunder.
9. Estimate of total project completion percentage: __________________%
10. The undersigned is an Authorized Officer of the Governmental Agency duly authorized in
the Loan Agreement to submit the Requisition.
11. The Governmental Agency reaffirms that all representations made by it in the Loan Agreement
are true and accurate as of the date of this requisition, and that it shall continue to observe and
perform all of its duties, covenants, obligations and agreements thereunder, at all times during the
entire term of said Loan Agreement.
Dated: __________________.
TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS
WATER ACTIVITY ENTERPRISE
By: ___________________________.
Title: _________________________& Authorized Officer
Print Name:____________________
You should receive all payments no later than 10 working days after receipt of requisition unless
otherwise notified.
1. The undersigned approves the disbursement of the requisitioned amount from the Project Loan
Account established in the Drinking Water Revolving Fund.
COLORADO WATER RESOURCES AND POWER DEVELOPMENT
AUTHORITY
By: ________________________________
Finance Director
Dated: _____________________________
For Colorado Department of Public Health and Environment, Water Quality Control Division
purposes only:
Payment approved by: ___________________________
Dated: _______________________________________