Attention: Ordinance 207-99 was missing at time of scanning
Whereas, long-term financing for the Project has been made available through the United States of America (Rural Utility Service) (the "RUS"); and
Whereas, the Town is authorized by Title 37, Article 45.1, C.R.S., and Article X, Section 20, Colorado constitution, C.R.S., to issue revenue bonds authorized by action of the Board without the approval of the electors of the Town, such bonds to be issued in the manner provided in Part 4 of Article 35 of Title 31, C.R.S.; and
Whereas, in order to pay costs of the Project in accordance with the rules and regulations of the RUS, the Town will obtain interim financing for the Project; and
Whereas, the Board, acting by and through the Enterprise, has determined and hereby determines that it is in the best interests of the Town, and the residents thereof, that the interim financing should be refinanced by the issuance of water revenue bonds to RUS, in the total principal amount of $284,000 (the "Bonds"); and
Whereas, none of the members of the Board have any potential conflicting interests in connection with the authorization, issuance, or sale of the Bonds, or the use of the proceeds thereof; and
Whereas, the Board desires to authorize the issuance and sale of the Bonds and the execution of the foregoing documents.
Be it ordained by the Board of Trustees of the Town of Deer Trail, Colorado:
Section 1. Definitions.
As used herein, the capitalized terms shall have the respective meanings set forth below, unless the context indicates otherwise, all other capitalized terms shall have the respective meanings set forth in the Resolution.
Additional Bonds: means one or more series of additional bonds, notes, interim securities, or other obligations issued by the Town pursuant to Section 22 hereof having a lien on the Net Revenue which is on a parity with the lien of the Bonds authorized by this Ordinance.
Board: The Board of Trustees of the Town and governing body of the Enterprise.
Bond Account's "Water Revenue Bond Account," created by the Resolution.
Bonds: the Water Revenue Bonds, Series 1999, dated as of the date of issuance, issued in the aggregate principal amount of $284,000, as authorized by this Ordinance.
Capital Improvements: 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.
Code: the Internal Revenue Code of 1986, as amended.
C.R.S.: the Colorado Revised Statutes, as amended and supplemented as of the date hereof.
Enterprise: the Town of Deer Trail Water Activity Enterprise, established pursuant to Title 37, Article 45.1, C.R.S. and Ordinance No. 206-99, of the Town.
Ordinance or Bond Ordinance: this ordinance which authorizes the issuance of the Bonds, including any amendments properly made hereto.
Project: the acquisition, construction, reconstruction, improvement, betterment, or extension of water facilities and all necessary or appropriate appurtenances, property rights, and equipment.
Resolution or Bond Resolution: Resolution No.99-01W of the Town of Deer Trail Water Activity Enterprise.
RUS: the Rural Utilities Service, administered by the United States Department of Agriculture, Office of Rural Development.
System: all of the Town's water facilities and properties, now owned or hereafter acquired, whether situated within or without the Town boundaries, including all present or future improvements, extensions, enlargements, betterments, replacements, or additions thereof or thereto, which comprise the Town's Water Activity Enterprise.
Town: The Town of Deer Trail, Arapahoe County, Colorado, a political subdivision of the State of Colorado and a water activity enterprise within the meaning of Title 37, Article 45.1, C.R.S., and Article X, Section 20 of the Colorado constitution.
Water Activity Revenue Fund: the fund of the Enterprise designated as the "Water Activity Revenue Fund", established by the provisions of Ordinance No. 206-99, and also referred to as the Water Revenue Fund Account.
Section 2. Authorization.
In accordance with the Constitution of the State of Colorado; Title 31, Article 35, Part 4, C.R.S.; Title 37, Article 45.1, C.R.S.; and all other laws of the State of Colorado thereunto enabling, there shall be issued the Town's "Water Revenue Bonds, Series 1999", in the aggregate principal amount of $284,000, for the purpose of paying the Project Costs. The accomplishment of the Project is hereby authorized, approved, and ordered.
Section 3. Approval of Town of Deer Trail Water Activity Enterprise Actions.
All actions heretofore taken by the Board of the Town of Deer Trail Water Activity Enterprise in furtherance of the issuance of the Bonds including its Resolution No. 99-01W are hereby ratified and approved.
Section 4. Special Obligations.
All of the Bonds, together with the interest thereon, shall be payable only out of: (i) the Bond Account, into which the Town covenants to deposit the Net Revenue in amounts sufficient to pay when due the principal of and interest on the Bonds; or (ii) if necessary, the Reserve Account. The Bonds and the interest thereon constitute an irrevocable and first lien on the Net Revenue, and the Net Revenue is hereby pledged to the payment of the Bonds. The Owners may not look to any general or other fund of the Town for the payment of the principal of and interest on the Bonds, except the funds and accounts pledged thereto by this Ordinance and the Resolution, and the Bonds shall not constitute a debt or an indebtedness of the Town within the meaning of Article XI, Section 6 of the Colorado Constitution or any statutory provision or limitation; nor shall they be considered or held to be general obligations of the Town.
Section 5. Bond Details.
The Bonds shall be issued only as fully registered Bonds without coupons in the denomination of $100 each or any integral multiple thereof. Unless the Town shall otherwise direct, the registered Bonds shall be numbered separately from 1 upward, with the number of each Bond preceded by "R-".
The Bonds shall be dated as of their date of issuance and shall bear interest at a rate not to exceed 4.75% per annum, payable semiannually on each January 1 and July 1, commencing on July 1, 2000, and shall mature on January 1 and July 1 in the years and amounts as set forth in the Resolution.
Interest on the Bonds shall be calculated on the basis of a 360-day year; provided that for any Bond registered in the name of the United States of America, interest shall be calculated as required by applicable RUS regulations. The maximum net effective interest rate authorized for this issue of Bonds is 4.75% per annum, and the actual net effective interest rate of the Bonds does not exceed such maximum rate.
Section 6. Prior Redemption.
All of the Bonds are subject to redemption prior to maturity, at the option of the Town, as a whole or in integral multiples of $100, in any order of maturity and in whole or partial maturities, on any date, upon payment of par and accrued interest, without redemption premium.
If less than all of the Bonds within a maturity are to be redeemed on any prior redemption date, the Bonds to be redeemed shall be selected by lot prior to the date fixed for redemption, in such manner as the Bond Registrar shall determine. The Bonds shall be redeemed only in integral multiples of $100. In the event a Bond is of a denomination larger than $100, a portion of such Bond may be redeemed, but only in the principal amount of $100 or any integral multiple thereof. Such Bond shall be treated for the purpose of redemption as that number of Bonds which results from dividing the principal amount of such Bond by $100. In the event a portion of any Bond is redeemed, the Bond Registrar shall, without charge to the Owner of such Bond, authenticate and deliver a replacement Bond or Bonds for the unredeemed portion thereof.
In the event any of the Bonds or portions thereof (which shall be in amounts equal to $100 or any integral multiple thereof) are called for redemption as aforesaid, notice thereof identifying the Bonds or portions thereof to be redeemed will be given by the Bond Registrar by mailing a copy of the redemption notice by first class mail (postage prepaid), not less than thirty (30) days prior to the date fixed for redemption, to the Owner of each Bond to be redeemed in whole or in part at the address shown on the registration books maintained by or on behalf of the Town by the Bond Registrar. The redemption of the Bonds may be contingent or subject to such conditions as may be specified in the notice. Failure to give such notice by mailing to any Owner, or any defect therein, shall not affect the validity of any proceeding for the redemption of other Bonds as to which no such failure or defect exists. All Bonds so called for redemption will cease to bear interest after the specified redemption date, provided funds for their redemption are on deposit at the place of payment at that time.
Section 7. Form and Execution of Bonds.
The Bonds shall be signed with the facsimile or manual signature of the Mayor of the Town, sealed with a facsimile or manual impression of the seal of the Town, and attested by the facsimile or manual signature of the Town Clerk. Should any officer whose facsimile or manual signature appears on the Bonds cease to be such officer before delivery of the Bonds to a purchaser, such facsimile or manual signature shall nevertheless be valid and sufficient for all purposes.
The Bonds shall be in substantially the form set forth in the Resolution.
Section 8. Disposition and Investment of Proceeds; Tax Covenants.
The Bonds shall be issued and sold for the purpose of paying the Project Costs. The Owners of the Bonds shall not be responsible for the application or disposal by the Town or any of its officers of the funds derived from the sale thereof.
All or any portion of the Bond proceeds may be temporarily invested or reinvested, pending such use, in securities or obligations which are lawful investments. It is hereby covenanted and agreed by the Town that it will not make, or permit to be made, any use of the original proceeds of the Bonds, or of any moneys treated as proceeds of the Bonds within the meaning of the Code and applicable regulations, rulings, and decisions, or take, permit to be taken, or fail to take any action, which would adversely affect the exclusion from gross income of the interest on the Bonds under Section 103 of the Code and applicable regulations, rulings, and decisions.
The Town further covenants to pay from time to time all amounts required to be related to the United States pursuant to Section 148(f) of the Code and any temporary, proposed, or final Treasury Regulations as may be applied to the Bonds from time to time. The payment of such rebate amounts as required by this paragraph supersedes all other provisions of this Ordinance concerning the deposit and transfer of interest earnings to or from any other fund or account. Moneys set aside to pay such rebate amounts pursuant to this paragraph are not subject to any lien created hereunder for the benefit of the Owners. This covenant shall survive the payment in full or the defeasance of the Bonds.
The Town hereby designates the Bonds as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code.
Section 9. Maintenance of Rates and Coverage.
The Town hereby covenants that it will establish, maintain, enforce, and collect rates, fees, plant investment fees, availability fees, tolls, and charges for services furnished by or the use of the System to create Gross Revenue each Fiscal Year sufficient to pay Operation and Maintenance Expenses and to create Net Revenue in an amount: (i) equal to not less than 120% of the amount necessary to pay when due the principal of and interest on the Bonds, and any Parity Lien Bonds coming due during such Fiscal Year; and (ii) sufficient to make up any deficiencies in the Reserve Account. In the event that the Gross Revenue at any time is not sufficient to make such payments, the Town shall increase such rates, fees, plant investment fees, availability fees, tolls, and charges to an extent which will ensure the payments and accumulations required by this Ordinance and the Resolution.
Section 10. Additional Covenants and Agreements.
The Town hereby further irrevocably covenants and agrees with each and every Owner that so long as any of the Bonds remain outstanding:
- The Town will continue to operate and manage the System in an efficient and economical manner in accordance with all applicable laws, rules, and regulations, and keep and maintain separate accounts of the receipts and expenses thereof in such manner that the Gross Revenue and Net Revenue may at all times be readily and accurately determined.
- The Town will not sell or alienate any of the property constituting any part or all of the System in any manner or to any extent as might reduce the security provided for the payment of the Bonds, but the Town may sell any portion of such property which shall have been replaced by other similar property of at least equal value, or which shall cease to be necessary for the efficient operation of the System; provided however, that the proceeds of any such sale of property shall be included as part of the Gross Revenue.
- The Town will promptly render bills for services furnished by or the use of the System, shall use all legal means to assure prompt payment thereof, and shall take such action as may be necessary to make delinquent rates, fees, tolls, and charges of the System a lien upon the real property served.
- At least once a year in the time and manner provided by law, the Town will cause an audit to be performed of the records relating to the revenues and expenditures of the System. Such audit may be made part of and included within the general audit of the Town and made at the same time as the general audit. In addition, at least once a year in the time and manner provided by law, the Town will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places, time, and manner provided by law.
- The Town will carry fire and extended coverage, workmen's compensation, public liability, and such other forms of insurance on insurable System property as would ordinarily be carried by utilities having similar properties of equal value, such insurance being in such amounts as will protect the System and its operation. In the event of any loss or damage to the System, or in the event part or all of the System is taken by the exercise of a power of eminent domain, the insurance proceeds or the condemnation award shall be used for restoring, replacing, or repairing the property lost, damaged, or taken, and the remainder thereof, if any, shall be considered as Gross Revenue; provided however, that if the Board determines that the operation of the System and the security for the Bonds will not be adversely affected thereby, the Board may determine not to restore, replace, or repair the property lost, damaged, or taken and all of the insurance proceeds or condemnation award shall be considered as Gross Revenue.
- Each Town official or other person having custody of any funds derived from the operation of the System, or responsible for the handling of such funds, shall be fully bonded at all times, which bond shall be conditioned upon the proper application of said funds.
- The Town has and will continue to maintain the System as an "enterprise" within the meaning of Article X, Section 20 of the Colorado Constitution, and as a "water activity enterprise" within the meaning of Title 37, Article 45.1, C.R.S. Specifically, but not by way of limitation, it is hereby covenanted and agreed that: (i) the System shall not receive 10% or more of its annual revenue in grants from all Colorado state and local governments combined; and (ii) in no event shall the System have any ability to levy taxes to pay the Bonds or any other expenses of the System.
- The Town hereby agrees that if financing is available through commercial credit at reasonable rates and terms, it will use its best efforts to refinance and redeem any Bonds registered in the name of the United States of America.
- In the event that any Bond is transferred to an Owner other than the United States of America and the Town continues to act as Paying Agent, the Town shall comply with all applicable information reporting and backup withholding requirements contained in the Code.
Section 11. Additional Bonds.
- No additional bonds, notes, interim securities, or other obligations shall be issued payable from the Net Revenue and having a lien thereon which is superior to the lien of the Bonds.
- The Town may issue Parity Lien Bonds if:
- the Town is then and as of the date of issuance of the Parity Lien Bonds will be, in substantial compliance with all of the covenants of this Ordinance and the Resolution.
- the Town is then and as of the date of issuance of the Parity Lien Bonds will be, current in the accumulation of all amounts required to be then accumulated in the Bond Fund and the Reserve Account, as required by this Ordinance and the Resolution; and
- the Net Revenue for the 12 month period immediately preceding the date of issuance of such Parity Lien Bonds is sufficient to pay an amount representing not less than 120% of the Combined Average Annual Principal and Interest Requirements for the Bonds, any outstanding Parity Lien Bonds, and the Parity Lien Bonds proposed to be issued; provided, that this limitation may be waived or modified by the written consent of bondholders representing 75% of the then outstanding principal indebtedness. For purposes of such test, the Net Revenue may be increased if there has been adopted a schedule of increases in rates, fees, plant investment fees, availability fees, tolls, and charges during or since the preceding 12 month period by adding to the actual revenues for said preceding 12 month period, an estimated sum equal to 100% of the estimated increase in revenues which would have been realized during said preceding 12 month period, had such increase been in effect during all of said preceding 12 month period.
- A written certificate by the Mayor or Town Treasurer that the condition set forth in paragraph
- above has been met, and a written certificate by a Certified Public Accountant or Consulting Engineer that the conditions set forth in paragraphs.
- and above are met, shall conclusively determine the right of the Town to authorize, issue, sell, and deliver Parity Lien Bonds in accordance herewith.
- So long as no Event of Default shall have occurred and be continuing, nothing herein shall prevent the Town from issuing Subordinate Lien Bonds.
Section 12. Permitted Amendments to Bond Ordinance.
The Town may, without the consent of or notice to the Owners, adopt amendments or supplements to this Ordinance, which amendments or supplements shall thereafter form a part hereof, for any one or more of the following purposes:
- to cure any ambiguity, to cure, correct, or supplement any formal defect or omission or inconsistent provision contained in this Ordinance, to make any provision necessary or desirable due to a change in law, to make any provisions with respect to matters arising under this Ordinance, or to make any provisions for any other purpose, if such provisions are necessary or desirable and do not materially adversely affect the interests of the Owners of the Bonds;
- to subject to this Ordinance or pledge to the payment of the Bonds additional revenues, properties, or collateral; and
- to grant or confer upon the Owners any additional rights, remedies, powers, or authority that may be lawfully granted to or conferred upon the Owners.
Section 13. Amendments Requiring Consent of Owners.
Except for amendatory or supplemental ordinances adopted pursuant to the Section hereof entitled "Permitted Amendments to Bond Ordinance", the Owners of not less than two-thirds (2/3) in aggregate principal amount of the Bonds then outstanding shall have the right, from time to time, to consent to and approve the adoption by the Town of such ordinances amendatory or supplemental hereto as shall be deemed necessary or desirable by the Town for the purpose of modifying, altering, amending, adding to, or rescinding, in any particular, any of the terms or provisions contained in this Ordinance; provided however, that without the consent of the Owners of all the Bonds affected thereby, nothing herein contained shall permit, or be construed as permitting:
- a change in the terms of the maturity of any Bond, in the principal amount of any Bond or the rate of interest thereon, or in the terms of prior redemption of any Bond.
- an impairment of the right of the Owners to institute suit for the enforcement of any payment of the principal of or interest on the Bonds when due.
- the creation of a lien upon the Net Revenue ranking prior to the lien of the Bonds.
- a privilege or priority of any Bond or any interest payment over any other Bond or interest payment; or
- a reduction in the percentage in principal amount of the Bonds the consent of whose Owners is required for any such amendatory or supplemental ordinance.
If at any time the Town shall desire to adopt an amendatory or supplemental ordinance for any of the purposes of this Section, the Town shall cause notice of the proposed adoption of such amendatory or supplemental ordinance to be given by mailing such notice by certified or registered first-class mail to and to each Owner of a Bond to the address shown on the registration books of the Bond Registrar, at least thirty (30) days prior to the proposed date of adoption of any such amendatory or supplemental ordinance. Such notice shall briefly set forth the nature of the proposed amendatory or supplemental ordinance and shall state that copies thereof are on file at the offices of the Town or some other suitable location for inspection by all Owners. If, within sixty (60) days or such longer period as shall be prescribed by the Town following the giving of such notice, the Owners of not less than the required percentage in aggregate principal amount of the Bonds then outstanding at the time of the execution of any such amendatory or supplemental ordinance shall have consented to and approved the execution thereof as herein provided, no Owner of any Bond shall have any right to object to any of the terms and provisions contained therein, or the operation thereof, or in any manner to question the propriety of the adoption and effectiveness thereof, or to enjoin or restrain the Town from adopting the same or from taking any action pursuant to the provisions thereof.
Section 14. Effect of Amendment.
Upon the execution of any amendatory or supplemental ordinance or Resolution pursuant to this Ordinance or the Resolution, this Ordinance shall be deemed to be modified and amended in accordance therewith, and the respective rights, duties, and obligations under this Ordinance of the Town, the Bond Registrar, the Paying Agent, and all Owners of Bonds then outstanding shall thereafter be determined, exercised, and enforced hereunder, subject in all respects to such modifications and amendments.
Section 15. Waiver by RUS.
Notwithstanding anything herein to the contrary, so long as the United States of America is the Owner of all of the Bonds, RUS may waive compliance with any of the terms of this Ordinance.
Section 16. Authorization to Execute Documents.
The Mayor and Town Clerk shall, and they 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 certificates and affidavits as may be reasonably required by RUS. The execution by the Mayor of the Town of any document authorized herein shall be conclusive proof of the approval by the Town of the terms thereof.
Section 17. Costs and Expenses.
All costs and expenses incurred in connection with the issuance and payment of the Bonds, shall be paid either from the proceeds of the Bonds or from legally available moneys of the Town, or from a combination thereof, and such moneys are hereby appropriated for that purpose.
Section 18. Holidays.
If the date for making any payment or performing any action hereunder shall be a legal holiday or a day on which the principal office of the Paying Agent or Bond Registrar is authorized or required by law to remain closed, such payment may be made or act performed on the next preceding day which is not a legal holiday or a day on which the principal office of the Paying Agent or Bond Registrar is authorized or required by law to remain closed.
Section 19. Ratification and Approval of Prior Actions.
All actions heretofore taken by the officers of the Town and the members of the Board, not inconsistent with the provisions of this Ordinance, relating to the authorization, sale, issuance, and delivery of the
Bonds, are hereby ratified, approved, and confirmed.
Section 20. Ordinance Irrepealable.
After any of the Bonds have been issued, this Ordinance shall constitute a contract between the Owners and the Town and shall be and remain irrepealable until the Bonds and the interest accruing thereon shall have been fully paid, satisfied, and discharged, as herein provided.
Section 21. Repealer.
All orders, bylaws, ordinances, and resolutions 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 22. Severability.
If any section, paragraph, clause, or provision of this Ordinance shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause, or provision shall not affect any of the remaining provisions of this Ordinance, the intent being that the same are severable.
Section 23. Recording and Authentication.
Upon adoption hereof, this Ordinance shall be recorded in a book kept for that purpose and shall be authenticated by the signatures of the Mayor and the Town Clerk.
Section 24. Emergency Declaration.
By reason of the fact that the Town must provide necessary improvements to the existing water system immediately and must provide for the funding of such costs it is hereby declared that an emergency exists, that this Ordinance is necessary to the immediate preservation of the public peace, health and safety, and that it shall become effective upon adoption.
Introduced, read and passed as an emergency ordinance at a special meeting of the Board of Trustees on the 26th day of October 1999, and ordered published in accordance with the provisions of Section 31-16-105, C.R.S.
Robert M. Coply , Mayor
Attested: Jessica E. Stoumbaugh, Town Clerk
It was thereupon moved by Trustee Germain and seconded by Trustee Raab that the foregoing Ordinance, introduced at this meeting as aforesaid, be passed and adopted as an emergency ordinance.
The questions being upon the adoption of the motion, the roll was called with the following result:
Those voting Yes:
Mayor: Robert Copley
Trustees: Brenna Hernandez
Gary Lavoie
Cynthia Mowry
Don Germain
Vicki Raab
Hugh Johnson
Those voting No: None.
Six (6) members of the Board of Trustees having voted in favor of said motion, such number being at least three-fourths of the members of the Board of Trustees, the presiding officer thereupon declared the motion carried and that the Ordinance was passed and adopted as an emergency ordinance.
Thereupon, after consideration of other business to come before the Board, the meeting was adjourned.
Robert M. Coply, Mayor
Attested: Jessica E. Stoumbaugh
State of Colorado
County of Arapahoe
Town of Deer Trail
The Board of Trustees of the Town of Deer Trail, Colorado, met in special session in full conformity with law and the ordinances and rules of the Town, at 555 Second Ave, in Deer Trail, Colorado, on Tuesday the 26th of October 1999 at 7pm.
Upon roll call the following were present, constituting a quorum:
Mayor: Robert Copley
Trustees: Brenna Hernandez
Gary Lavoie
Cynthia Mowry
Don Germain
Vicki Raab
Hugh Johnson
Also present:
Town Clerk: Jessica Stoumbaugh
Absent: None
Thereupon Mayor Coply introduced, there was read the title of the following Ordinance.