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HomeMy WebLinkAboutORDINANCE 01-26TOWN OF ESTES PAPJ<, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE ORDINANCE NO. 01-26 AN ORDINANCE OF THE TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE, AUTHORIZING THE EXECUTION AND DELIVERY OF A SECOND AMENDMENT TO CONSTRUCTION LOAN AGREEMENT AND A SECOND AMENDED CONSTRUCTION LOAN NOTE, SEMES 2022A AND OTHER DOCUMENTS RELATED THERETO IN CONNECTION WITH REBUILDING AND IMPROVING THE WATER DISTRIBUTION SYSTEM OF THE FORMER PROSPECT MOUNTAIN WATER COMPANY; AND DECLARING AN EMERGENCY. WHEREAS, the Town of Estes Park, Colorado (the "Town") is a statutory town and political subdivision duly organized and existing pursuant to the constitution and laws of the State of Colorado; and WHEREAS, the Board of Trustees (the "Board") of the Town has formally established a Water Activity Enterprise (the "Enterprise") pursuant to Ordinance No. 08-99; and WHEREAS, the Town, acting by and through the Enterprise, operates and maintains a municipal water system within the Town and surrounding areas for the distribution of treated water; and WHEREAS, such municipal water system has been and continues to be operated by the Enterprise as a govemment-owned business, which is authorized to issue its own revenue bonds and receives under 10% of annual revenue in grants from all Colorado state and local governments combined, and the Enterprise is determined to be an enterprise within the meaning of Article X, Section 20 of the Colorado Constitution; and WHEREAS, the Town, acting by and through the Enterprise, provided treated water to the Prospect Mountain Water Company, Inc. (the "Company") for years as a bulk water customer, and the Company distributed such water through its own distribution system (the "Prospect Mountain System") to property owners in the Company's service area; and WHEREAS, following the bankruptcy of the Company, the Town, acting by and through the Enterprise, and the Bankruptcy Trustee, acting for the Company, entered into a Voluntary Water System Transfer Agreement for the transfer of the Prospect Mountain System to the Town in order for the Town, acting by and through the Enterprise, to undertake the rebuilding and improvement of the Prospect Mountain System to Town standards (the "Project"); and WHEREAS, in order to provide funds to pay a portion of the costs of the Project, the Board, acting as the governing body of the Enterprise, entered into a Construction Loan Agreement dated as of October 11, 2022 (the "Original Loan Agreement") with CoBank, ACB, as lender (the 4898-7560-1532.3 "Lender"), pursuant to which the Lender made an interim construction loan evidenced by a Construction Loan Note, Series 2022A dated October 11, 2022 (the "Original Series 2022A Note"), which was executed and delivered by the Town, acting by and through the Enterprise, in a principal amount of $4,493,000.00; and WHEREAS, voter approval was not required under Article X, Section 20 of the Colorado Constitution for the execution of the Original Loan Agreement or the issuance of the Original Series 2022A Note; and WHEREAS, the Original Series 2022ANote was expected to be repaid to the Lender from the proceeds of a Direct Loan (the "USDA Direct Loan Proceeds") to the Town, acting by and through the Enterprise, from the United States Department of Agriculture, acting through the United States Department ofAgriculture-Rural Development ("USDA-RD"); and WHEREAS, the USDA Direct Loan Proceeds were not available to repay the Original Series 2022A Note on or before its scheduled maturity date of August 1, 2025; and WHEREAS, the Lender agreed to extend the maturity date of the Original Series 2022A Note as provided in the First Amendment to Loan Agreement entered into as of July 31, 2025 between the Town, actmg by and through the Enterprise, and the Lender (the "First Amendment to Loan Agreement"), and to accept an amended Construction Loan Note, Series 2022A (the "First Amended Series 2022A Note") in exchange for the Original Series 2022A Note; and WHEREAS, voter approval was not required for the execution and delivery of the First Amendment to Loan Agreement and the First Amended Series 2022A Note; and WHEREAS, the First Amended Series 2022A Note was expected to be repaid to the Lender fi'om the USDA Direct Loan Proceeds loaned to the Town, acting by and through the Enterprise, from the USDA-RD; and WHEREAS, the First Amended Series 2022A Note matures on Febmary 1,2026,and the USDA Direct Loan Proceeds will not be available to repay the First Amended Series 2022A Note on or before such maturity date; and WHEREAS, the Lender has agreed to extend the maturity date of the First Amended Series 2022A Note as provided in the Second Amendment to Loan Agreement between the Town, acting by and through the Enterprise, and the Lender (the "Second Amendment to Loan Agreement"), and to accept an. amended Construction Loan Note, Series 2022A (the "Second Amended Series 2022A Note") in exchange for the First Amended Series 2022A Note; and WHEREAS, voter approval is not required for the execution and deliveiy of the Second Amendment to Loan Agreement and the Second Amended Series 2022A Note; and WHEREAS, none of the members of the Board have any potential conflicting interests in connection with the execution and deliveiy of the Second Amendment to Loan Agreement and the Second Amended Series 2022A Note; and 4898-7560-1532,3 VvTIEREAS, the Board, acting as the governing body of the Enterprise, desires to authorize the execution of the Second Amendment to Loan Agreement and the Second Amended Series 2022A Note, and other documents in connection therewith, BE IT HEREBY ORDAINED BY THE BOARD OF TRUSTEES OF THE TOWN OF ESTES PARK, COLORADO, ACTING AS THE GOVERNING BODY OF ITS WATER ACTIVITY ENTERPRISE: Section 1. Definitions. Capitalized terms used herein and not otherwise defined shall have the same meanings, respectively, as provided in the Original Loan Agreement. In addition, as used herein, the following capitalized terms shall have the respective meanings set forth below, unless the context indicates otherwise: "Authorized Officer" means the Mayor, the Mayor Pro Tem, the Town Administrator, the Finance Director of the Town, or the Director of Utilities of the Town or any other person designated as an Authorized Officer by ordinance or resolution of the Board and submitted to the Lender. "USDA-RD" means the United States Department of Agriculture, acting through the United States Department ofAgriculture-Rural Development, and its successors and assigns. Section 2. Authorization. The Second Amendment to Loan Agreement and the Second Amended Series 2022A Note, in substantially the forms presented to the Board at this meeting, with such changes as are not inconsistent with the intent of this Ordinance and are approved by special counsel or bond counsel to the Town, are hereby authorized and approved. The Town, acting by and tb-ough the Enterprise, shall enter into and deliver the Second Amendment to Loan Agreement and the Second Amended Series 2022A Note and perform its obligations thereunder. The Mayor or Mayor Pro Tem of the Town, acting as a member of the governing body of the Enterprise, is hereby authorized and directed to execute, and the Town Clerk or any deputy is authorized to attest and affix the seal of the Town to, the Second Amendment to Loan Agreement and the Second Amended Series 2022A Note with the amended Maturity Date. The Town Treasurer is hereby authorized and directed to authenticate the Second Amended Series 2022A Note with the amended Maturity Date, Such Authorized Officers are further authorized and directed to execute such other documents, instruments or certificates as are deemed necessary or desirable in connection therewith. 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. Section 3. Note Details, The Town, acting by and through the Enterprise, shall deliver the Second Amended Series 2022A Note to the Lender in exchange for the First Amended Series 2022A Note previously issued to the Lender. The Second Amended Series 2022A Note shall remain in an aggregate principal amount of $4,493,000.00, shall remain as originally dated, shall bear interest at a variable rate as originally provided in the Original Loan Agreement, and shall mature not later than the amended Maturity Date provided in the Second Amendment to Loan Agreement, or earlier if the Second Amended Series 2022A Note is prepaid in full pursuant to the Original Loan Agreement and may be made subject to prepayment with or without prepayment 4898-7560-1532.3 penalty, as provided by the Original Loan Agreement and the Final Terms Certificate executed in connection with the Original Series 2022A Note. Section 4. Enterprise Status. The Board hereby determines that the Enterprise is an "enterprise" within the meaning of Article X, Section 20 of the Colorado Constitution. The Town has and will continue to use its best efforts to maintain the System as an "enterprise" within the meaning of Article X, Section 20 of the Colorado Constitution, and the meaning of Title 37, Article 45.1,C.R.S. Section 5. Amendment of Ordinance. The Town shall not amend this Ordinance without the consent of the Lender. Section 6. Authorization To Execute Documents. The Authorized Officers shall and are hereby authorized and directed to take all actions necessary or appropriate to effectuate the provisions of this Ordinance, including, but not limited to, the execution of such documents, certificates and affidavits as may be reasonably required by the Lender or bond counsel to the Town. The execution by any Authorized Officer of any document authorized herein shall be conclusive proof of the approval by the Town of the terms thereof. The Town Clerk or any deputy 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 necessaiy, 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 in cormection with the transactions contemplated by this Ordinance, and to perform all other acts that they may deem necessary or appropriate in order to implement and carry out the transactions and other matters authorized or contemplated by this Ordinance. Section 7. Ratification of Prior Actions. All actions heretofore taken (not inconsistent with the provisions of this Ordinance) by the Board or by the officers and employees of the Town directed toward the undertaking of the Project, the execution of the Original Loan Agreement, the First Amendment to Loan Agreement, and the Second Amendment to Loan Agreement, and the issuance of the Original Series 2022A Note, the First Amended Series 2022A Note, and the Second Amended Series 2022A Note, for the purposes herein set forth are hereby ratified, approved and confirmed. Section 8. Headings. The headings of the various sections and paragraphs in this Ordinance have been inserted solely for the convenience of the reader, are not a part of this Ordinance, and shall not be used in any manner to interpret this Ordinance. Section 9. Ordinance Irrepealable. This Ordinance shall constitute a contract between the Owner of the Second Amended Series 2022A Note, and the Town, acting by and tb-ough the Enterprise, and shall be and remain irrepealable until the Second Amended Series 2022A Note and the interest accruing thereon shall have been fully paid, satisfied, and discharged. 4898-7560-1532.3 Section 10. Severabilify. It is hereby expressly declared that all provisions hereof and their application are intended to be and are severable. In order to implement such intent, if any provision hereof or the application thereof is determined by a court or administrative body to be invalid or unenforceable, in whole or in part, such determination shall not affect, impair or invalidate any other provision hereof or the application of the provision in question to any other situation; and 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, Section 11. Repealer. All orders, bylaws, resolutions and ordinances of the Town, or parts thereof, inconsistent or in conflict with this Ordinance are hereby repealed to the extent only of such inconsistency or conflict. ' • . Section 12. Recording and Authentication. This Ordinance, immediately upon its passage, shall be recorded in the Town book of Ordinances kept for this purpose, and shall be authenticated by the signatures of the Mayor and the Town Clerk. Section 13. Emergency Declaration. The Board hereby declares that, because the maturity date of the First Amended Series 2022A Note, as originally issued, is less than 30 days fi'om the date hereof and the Town lacks the available funds, either from the USDA-RD or its own accounts, to pay the amount due on such First Amended Series 2022A Note on the maturity date, that an emergency exists. The Board hereby further declares that, due to such emergency, this Ordinance is necessary to the immediate preservation of the public peace, welfare, health and safety of the residents of the Town and is being adopted as an emergency ordinance. 4898-7560-1532.3 IN WITNESS WHEREOF, the Town, acting by and through the Enterprise, and the Lender have caused this Second Amendment to be duly executed and attested, all as of the day and year first above written. ^T"!""""»,^s'^ff'S^h \<^\ .c!Nnl /<?/ '"<c^' Attested: TOWN OF ESTES PARK, COLORADO, ACTING BY AND THROUGH ITS WATER ACTIVITY ENTERPRISE By.'flfr Mayor •^-^. - ^j.^>->_Q_SL_»e-vy^i°-\^ )wn Clerk COBANK, ACB, as Lender By_ Authorized Representative APPROVED AS TO FORM: By:. Greg(/r y A.^Wfiite, Special Counsel L^^_ By:_ Kutak Rock LLP, Bond Counsel 4921-9736-4604.4