HomeMy WebLinkAboutCOUNCIL - COMPLETE AGENDA - 11/19/2019 - COMPLETE AGENDACity of Fort Collins Page 1
Wade Troxell, Mayor City Council Chambers
Kristin Stephens, District 4, Mayor Pro Tem City Hall West
Susan Gutowsky, District 1 300 LaPorte Avenue
Julie Pignataro, District 2 Fort Collins, Colorado
Ken Summers, District 3
Ross Cunniff, District 5 Cablecast on FCTV Channel 14
Emily Gorgol, District 6 and Channel 881 on the Comcast cable system
Carrie Daggett Darin Atteberry Delynn Coldiron
City Attorney City Manager City Clerk
Regular Meeting
November 19, 2019
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Participation portion of a meeting or during discussion of any Council item must provide any such
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Proclamations and Presentations
5:30 p.m.
No Proclamations are scheduled.
City of Fort Collins Page 2
Regular Meeting
6:00 p.m.
• PLEDGE OF ALLEGIANCE
• CALL MEETING TO ORDER
• ROLL CALL
• AGENDA REVIEW: CITY MANAGER
• City Manager Review of Agenda.
• Consent Calendar Review
This Review provides an opportunity for Council and citizens to pull items from the Consent
Calendar. Anyone may request an item on this calendar be “pulled” off the Consent Calendar
and considered separately.
o Council-pulled Consent Calendar items will be considered before Discussion Items.
o Citizen-pulled Consent Calendar items will be considered after Discussion Items.
• PUBLIC COMMENT
Individuals may comment regarding items scheduled on the Consent Calendar and items not
specifically scheduled on the agenda. Comments regarding land use projects for which a development
application has been filed should be submitted in the development review process** and not to the
Council.
• Those who wish to speak are asked to sign in at the table in the lobby (for recordkeeping
purposes).
• All speakers will be asked by the presiding officer to identify themselves by raising their hand,
and then will be asked to move to one of the two lines of speakers (or to a seat nearby, for
those who are not able to stand while waiting).
• The presiding officer will determine and announce the length of time allowed for each speaker.
• Each speaker will be asked to state his or her name and general address for the record, and to
keep comments brief. Any written comments or materials intended for the Council should be
provided to the City Clerk.
• A timer will beep once and the timer light will turn yellow to indicate that 30 seconds of
speaking time remain, and will beep again and turn red when a speaker’s time to speak has
ended.
[**For questions about the development review process or the status of any particular development,
citizens should consult the Development Review Center page on the City’s website at
fcgov.com/developmentreview, or contact the Development Review Center at 221-6750.]
• PUBLIC COMMENT FOLLOW-UP
City of Fort Collins Page 3
Consent Calendar
The Consent Calendar is intended to allow the City Council to spend its time and energy on the
important items on a lengthy agenda. Staff recommends approval of the Consent Calendar. Anyone
may request an item on this calendar to be "pulled" off the Consent Calendar and considered
separately. Agenda items pulled from the Consent Calendar will be considered separately under
Pulled Consent Items. Items remaining on the Consent Calendar will be approved by City Council with
one vote. The Consent Calendar consists of:
● Ordinances on First Reading that are routine;
● Ordinances on Second Reading that are routine;
● Those of no perceived controversy;
● Routine administrative actions.
If the presiding officer determines that the number of items pulled from the Consent Calendar by
citizens is substantial and may impair the Council’s ability to complete the planned agenda, the
presiding officer may declare that the following process will be used to simplify consideration of the
Citizen-Pulled Consent Items:
(1) All citizen-pulled items (to be listed by number) will be considered as a group under the heading
“Consideration of Citizen-Pulled Consent Items.”
(2) At that time, each citizen wishing to speak will be given a single chance to speak about any and all
of the items that have been moved to that part of the agenda.
(3) After the citizen comments, any Councilmember may specify items from the list of Citizen-Pulled
Consent Items for Council to discuss and vote on individually. Excluding those specified items, Council
will then adopt all “Citizen-Pulled Consent Items” as a block, by a single motion, second and vote.
(4) Any Citizen-Pulled Consent Items that a Councilmember has asked to be considered individually
will then be considered using the regular process for considering discussion items.
1. Items Relating to 2019 Fee Update.
A. Second Reading of Ordinance No. 130, 2019, Amending Chapter 7.5 of the Code of the City of
Fort Collins to Implement the Phase III Increases for the Capital Expansion Fees and Increase
for Inflation the Capital Expansion Fees and the Transportation Expansion Fee.
B. Second Reading of Ordinance No. 131, 2019, Amending Chapter 26 of the Code of the City of
Fort Collins Regarding Calculation and Collection of Development Fees Imposed for the
Construction of New or Modified Electric Service Connections.
C. Second Reading of Ordinance No. 132, 2019, Amending Chapter 26 of the Code of the City of
Fort Collins to Revise Sewer Plant Investment Fees.
D. Second Reading of Ordinance No. 133, 2019, Amending Chapter 26 of the Code of the City of
Fort Collins to Revise the Stormwater Plant Investment Fees.
E. Second Reading of Ordinance No. 134, 2019, Amending Chapter 26 of the Code of the City of
Fort Collins to Revise Water Plant Investment Fees.
F. Second Reading of Ordinance No. 135, 2019, Amending Chapter 26 of the Code of the City of
Fort Collins to Revise the Water Supply Requirements Fee.
These Ordinances, unanimously adopted on First Reading on November 5, 2019, update fees
associated with Electric Capacity Fees, Water Supply Requirement Fees, Wet Utility Plant
Investment Fees (PIFs) and Step III of the 2017 Capital Expansion Fees (CEFs). 2019 fee updates
City of Fort Collins Page 4
include: Electric Capacity Fees, Water Supply Requirement Fees, Wet (Water, Wastewater and
Stormwater) Utility Plant Investment Fees and Step III of the 2017 Capital Expansion Fees.
2. Second Reading of Ordinance No. 136, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins to Clarify the Application of Certain Water-Related Fees to Different Forms of Fraternity and
Sorority Housing.
This Ordinance unanimously adopted on First Reading on November 5, 2019, amends Chapter 26 of
City Code to clarify the application of certain water-related fees to different forms of fraternity and
sorority housing.
3. Second Reading of Ordinance No. 137, 2019, Authorizing the City's Conveyance of Land to
Facilitate the Replatting of the Lot on which the City's Foothills Activity Center is Located.
This Ordinance, unanimously adopted on First Reading on November 5, 2019, approves the
exchange of deeds between the City, the developer of the Foothills Mall and the owner of the Macy’s
store in the Mall. This exchange of deeds is needed to replat the lot on which the City’s Foothills
Activity Center (FAC) is now located to eliminate small encroachments that currently exist between
the City’s FAC lot and adjacent properties owned by the Mall developer and Macy’s. This replatting
will remove these encroachments and ensure that the FAC, as built, is located entirely and correctly
within the City’s replatted lot.
4. First Reading of Ordinance No. 139, 2019, Appropriating Prior Year Reserves for the Purchase of
Property on West Vine Drive.
The purpose of this item is to appropriate prior year reserves in the Storm Drainage Fund to
purchase a portion of the property at 1337 West Vine Drive. This parcel is needed in order to
construct the West Vine Outfall, which is part of the approved West Vine Basin Master Drainage
Plan.
5. First Reading of Ordinance No. 140, 2019, Appropriating Prior Year Reserves in Various City Funds
to Reimburse Capital Expansion and Utility fee Funds and Housing Catalyst for Fees Waived for the
Mason Place Affordable Housing Project.
The purpose of this item is to appropriate funds from the Affordable Housing Capital Fund in the
Community Capital Improvement Program and General Fund reserves to reimburse certain City
Departments and Housing Catalyst for fees that were waived for the Mason Place affordable housing
project.
6. Resolution 2019-106 Authorizing the Execution of an Intergovernmental Agreement Between the
City of Fort Collins, the Town of Windsor and the City of Greeley for the Operation of the Poudre
Express.
The purpose of this item is to authorize the execution of an Intergovernmental Agreement (IGA) with
Greeley Evans Transit (GET) for the operation of the Poudre Express, the new regional fixed route
bus service between Greeley and Fort Collins. GET will operate the Poudre Express, with runs
between Greeley and Fort Collins. This will be funded through cooperation with GET and partner
agencies, including the Town of Windsor and City of Fort Collins.
7. Resolution 2019-107 Concerning the Fort Collins Urban Renewal Authority and Its Tax Increment
Revenue Refunding Bonds (Prospect South), Series 2019; Declaring the City Council's Present
Intent to Appropriate Funds to Replenish the Reserve Fund Securing Such Bonds, If Necessary; and
Authorizing a Cooperation Agreement and other Actions Taken in Connection Therewith.
The purpose of this item is for the City Council to consider a Replenishment Resolution, which both
provides a “Moral Obligation Pledge” to the Fort Collins Urban Renewal Authority (URA) and
approves a Cooperation Agreement between the City and the URA in connection with the revenue
bond issuance considered by the URA Board at its November 7, 2019 meeting.
City of Fort Collins Page 5
In 2013, the City loaned the URA $5 million to reimburse a developer for eligible expenses as part of
the Summit development in the Prospect South Tax Increment Financing District (Prospect South
TIF District). In 2014, the City loaned the URA $274,000 for eligible expenses related to the Prospect
Station development in the Prospect South TIF District. The City has requested the URA to consider
refinancing these loans to free up the $5 million for investing in other community priorities. The URA
may also benefit from refinancing by being able to issue bonds with lower interest rates than the
existing loan. As part of this refinance, the URA is seeking a moral obligation from the City for this
bond issuance. The moral obligation would result in improved bond ratings and reduced debt service
costs to the URA.
END CONSENT
• CONSENT CALENDAR FOLLOW-UP
This is an opportunity for Councilmembers to comment on items adopted or approved on the Consent
Calendar.
• STAFF REPORTS
A. Community Dashboard Metric-Average Number of Transfort Riders per Hour of Operation (staff:
Drew Brooks)
B. Halligan Water Supply Project Update (staff: Carol Webb, Eileen Dornfest)
• COUNCILMEMBER REPORTS
• CONSIDERATION OF COUNCIL-PULLED CONSENT ITEMS
Discussion Items
The method of debate for discussion items is as follows:
● Mayor introduces the item number, and subject; asks if formal presentation will be
made by staff
● Staff presentation (optional)
● Mayor requests citizen comment on the item (three minute limit for each citizen)
● Council questions of staff on the item
● Council motion on the item
● Council discussion
● Final Council comments
● Council vote on the item
Note: Time limits for individual agenda items may be revised, at the discretion of the Mayor, to ensure
all citizens have an opportunity to speak. Please sign in at the table in the back of the room.
The timer will buzz when there are 30 seconds left and the light will turn yellow. It will buzz again
at the end of the speaker’s time.
City of Fort Collins Page 6
8. Second Reading of Ordinance No. 138, 2019, Amending the Zoning Map of the City of Fort Collins
by Changing the Zoning Classification for that Certain Property Known as the Hughes Stadium Site
Rezoning and Approving Corresponding Changes to the Residential Neighborhood Sign District
Map. (staff: Cameron Gloss; no staff presentation; 1 hour discussion)
This Ordinance, adopted on First Reading by a vote of 4-3 (Nays: Cunniff, Gutowsky, Pignataro),
rezones 164.55 acres located on the west side of Overland Trail and north of CR32, with one
condition, and to place the property into the Residential Sign District. City Council initiated the
rezoning on July 16, 2019 and directed City staff to prepare a rezoning application and make a
recommendation regarding the appropriate zoning. The site is currently zoned Transition (T) and
staff recommends placement into the Residential Foothills (RF) and Low-Density Mixed-Use
Neighborhood (LMN) zone districts. A recommended condition of the rezone requires that future
development in the portion zoned Residential Foothills district meet the requirements of a Cluster
Plan pursuant to Land Use Code Section 4.3(E)(2). The request places the property into the
Residential Sign District. The Planning and Zoning Board on a 4-2 vote recommended that City
Council not adopt the staff proposed zoning and instead zone the property entirely Residential
Foothills.
• CONSIDERATION OF CITIZEN-PULLED CONSENT ITEMS
• OTHER BUSINESS
A. Consideration of a motion to adjourn into executive session.
“I move that the City Council go into executive session, as permitted under Article Two, Section
Eleven of the City Charter, Section 2-31(a)(1) of the City Code and Colorado Revised Statutes
Section 24-6-402(4)(f)(roman number one), for the purpose of continuing the annual reviews of
the Chief Judge, City Manager and City Attorney.”
B. Possible consideration of the initiation of new ordinances and/or resolutions by
Councilmembers
(Three or more individual Councilmembers may direct the City Manager and City Attorney to
initiate and move forward with development and preparation of resolutions and ordinances not
originating from the Council's Policy Agenda or initiated by staff.)
• ADJOURNMENT
A. Consideration of a motion to adjourn to 6:00 p.m., Tuesday, November 26, 2019.
"I move that Council adjourn this meeting to 6:00 p.m., on Tuesday, November 26, 2019, for
consideration of a possible executive session and for such other business as may come before
the Council.”
Every Council meeting will end no later than 10:30 p.m., except that: (1) any item of business
commenced before 10:30 p.m. may be concluded before the meeting is adjourned and (2) the City
Council may, by majority vote, extend a meeting until no later than 12:00 a.m. for the purpose of
considering additional items of business. Any matter which has been commenced and is still pending
at the conclusion of the Council meeting, and all matters scheduled for consideration at the meeting
which have not yet been considered by the Council, will be continued to the next regular Council
meeting and will be placed first on the discussion agenda for such meeting.
Agenda Item 1
Item # 1 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Jennifer Poznanovic, Project and Revenue Manager
Cyril Vidergar, Legal
Eric Potyondy, Legal
John Duval, Legal
SUBJECT
Items Relating to 2019 Fee Update.
EXECUTIVE SUMMARY
A. Second Reading of Ordinance No. 130, 2019, Amending Chapter 7.5 of the Code of the City of Fort Collins
to Implement the Phase III Increases for the Capital Expansion Fees and Increase for Inflation the Capital
Expansion Fees and the Transportation Expansion Fee.
B. Second Reading of Ordinance No. 131, 2019, Amending Chapter 26 of the Code of the City of Fort Collins
Regarding Calculation and Collection of Development Fees Imposed for the Construction of New or
Modified Electric Service Connections.
C. Second Reading of Ordinance No. 132, 2019, Amending Chapter 26 of the Code of the City of Fort Collins
to Revise Sewer Plant Investment Fees.
D. Second Reading of Ordinance No. 133, 2019, Amending Chapter 26 of the Code of the City of Fort Collins
to Revise the Stormwater Plant Investment Fees.
E. Second Reading of Ordinance No. 134, 2019, Amending Chapter 26 of the Code of the City of Fort Collins
to Revise Water Plant Investment Fees.
F. Second Reading of Ordinance No. 135, 2019, Amending Chapter 26 of the Code of the City of Fort Collins
to Revise the Water Supply Requirements Fee.
These Ordinances, unanimously adopted on First Reading on November 5, 2019, update fees associated with
Electric Capacity Fees, Water Supply Requirement Fees, Wet Utility Plant Investment Fees (PIFs) and Step III
of the 2017 Capital Expansion Fees (CEFs). 2019 fee updates include: Electric Capacity Fees, Water Supply
Requirement Fees, Wet (Water, Wastewater and Stormwater) Utility Plant Investment Fees and Step III of the
2017 Capital Expansion Fees.
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Agenda Item 1
Item # 1 Page 2
ATTACHMENTS
1. First Reading Agenda Summary, November 5, 2019 (w/o attachments) (PDF)
2. Ordinance No. 130, 2019 (PDF)
3. Ordinance No. 131, 2019 (PDF)
4. Ordinance No. 132, 2019 (PDF)
5. Ordinance No. 133, 2019 (PDF)
6. Ordinance No. 134, 2019 (PDF)
7. Ordinance No. 135, 2019 (PDF)
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Agenda Item 8
Item # 8 Page 1
AGENDA ITEM SUMMARY November 5, 2019
City Council
STAFF
Jennifer Poznanovic, Project and Revenue Manager
John Duval, Legal
Eric Potyondy, Legal
Cyril Vidergar, Legal
SUBJECT
Items Relating to the 2019 Fee Update.
EXECUTIVE SUMMARY
A. First Reading of Ordinance No. 130, 2019, Amending Chapter 7.5 of the Code of the City of Fort
Collins to Implement the Phase III Increases for the Capital Expansion Fees and Increase for Inflation
the Capital Expansion Fees and the Transportation Expansion Fee.
B. First Reading of Ordinance No. 131, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins Regarding Calculation and Collection of Development Fees Imposed for the Construction of
New or Modified Electric Service Connections.
C. First Reading of Ordinance No. 132, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins to Revise Sewer Plant Investment Fees.
D. First Reading of Ordinance No. 133, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins to Revise the Stormwater Plant Investment Fees.
E. First Reading of Ordinance No. 134, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins to Revise Water Plant Investment Fees.
F. First Reading of Ordinance No. 135, 2019, Amending Chapter 26 of the Code of the City of Fort
Collins to Revise the Water Supply Requirements Fee.
The purpose of this item is to review fee updates associated with Electric Capacity Fees, Water Supply
Requirement Fees, Wet Utility Plant Investment Fees (PIFs) and Step III of the 2017 Capital Expansion Fees
(CEFs). Fee updates have been reviewed by Council Finance Committee twice, and at the November 8th Council
Work Session Council was fully supportive of brining fees forward for Council adoption. Staff met with nine
organizations across the City in the summer of 2019 and overall organizations were supportive of the approach
and cadence.
Coordination of Council approved fees began in 2016 to provide a more holistic view of the total cost impact.
Previously, fee updates were presented to Council on an individual basis. After the 2019 fee update, fee phasing
will be complete with regular two and four-year cadence updates beginning in 2021.
2019 fee updates include: Electric Capacity Fees, Water Supply Requirement Fees, Wet (Water, Wastewater
and Stormwater) Utility Plant Investment Fees and Step III of the 2017 Capital Expansion Fees.
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 2
Staff proposes the following fee changes:
Wet Utility PIFs as proposed
Electric Capacity Fees as proposed
Water Supply Requirement Fee as proposed
100% of proposed 2017 Capital Expansion Fees (Step III)
Transportation Capital Expansion Fees (inflation only)
Development Review/Building Fees were initially planned to be part of the 2019 update but have been decoupled
and will come forward once finalized.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinances on First Reading.
BACKGROUND / DISCUSSION
Since the fall of October 2016, staff has worked to coordinate the process for updating all new development
related fees that require Council approval. This resulted in the completion of two studies, the Capital
Expansion Fee Study dated August 2016 (CEF Study) for the neighborhood park, community park, fire, police
and general government capital expansion fees (CEFs) and the Transportation Capital Expansion Fee Study
dated April 2017 (TCEF Study) for the transportation capital expansion fee (TCEF).
Development related fees that are approved by Council are CEFs, the TCEF, five Utility Fees and Building
Development Fees.
Previously, fee updates were presented to Council on an individual basis. However, it was determined that
updates should occur on a regular two and four-year cadence and fees updates should occur together each
year to provide a more holistic view of the impact of any fee increases.
Fee coordination includes a detailed fee study analysis for CEFs, the TCEFs and Development
Review/Building Fees every four years. This requires an outside consultant through a request for proposal
(RFP) process where data is provided by City staff. Findings by the consultant are also verified by City staff.
For Utility Fees, a detailed fee study is planned every two years. These are internal updates by City staff with
periodic consultant verification. In the future, fee study analysis will be targeted in the odd year before
Budgeting for Outcomes (BFO). In years without an update, an inflation adjustment occurs.
Below is the current fee timeline:
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 3
Phase I of the fee updates included CEFs, TCEFs, Electric Capacity Fees, and Raw Water/CIL and were
adopted in 2017. Phase II included Wet Utility PIFs and Step II of CEFs and TCEFs, which were approved in
2018. Development review and building permit fees were originally included in Phase II but were decoupled
from the 2018 update.
In Phase I (2017), the CEFs were increased to 75% of the amounts recommended in the CEF Study and the
TCEF was increased to 80% of the amounts recommended in the TCEF Study. In Phase II (2018), the CEFs
were increased to 90% of the amounts recommended in the CEF Study and the TCEF was increased to 100%
of the amounts recommended in the TCEF Study. This Ordinance implements Phase III by increasing the
CEFs to 100% of the amounts recommended in the CEF Study.
Due to the concern in the development and building community around fee changes, Council asked for a fee
working group to be created to foster a better understanding of fees prior to discussing further fee updates. In
August of 2017, the Fee Working Group commenced comprised of a balanced group of stakeholders –
citizens, business-oriented individuals, City staff and a Council liaison. The Fee Working Group met 14 times
and was overall supportive of the fee coordination process and proposed fee updates.
The 2019 phase III update includes Electric Capacity Fees, Water Supply Requirement Fees, Wet Utility Plant
Investment Fees and Step III of the 2017 Capital Expansion Fees. After the 2019 fee update, fee phasing will
be complete with regular two and four-year cadence updates beginning in 2021.
Development Review/Building Fees were initially planned to be part of the 2019 update but have been
decoupled and will come forward once finalized. The 2019 Fee Working Group is focused on Development
Review/Building Fees only and met four times as of mid-September. The 2019 Fee Working Group consists of
a balanced group of stakeholders – citizens, business-oriented individuals and City staff.
2019 Utility Fee Updates
The proposed changes to Utility Fees for a single-family, residential home include a 1.7% increase to the
Electric Capacity Fee (ECF) and increases to the three Wet Utility Fees ranging between 1.5% and 6.7%. The
Water Plant Investment Fee (PIF) is proposed to increase 6.7%, the Wastewater PIF is proposed to increase
1.5% and the Stormwater PIF is proposed to increase 3.3% from current fee levels.
The chart below summarizes the proposed Utility Fees for a single-family home, assuming an 8,600 square
feet lot and 4 bedrooms:
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 4
It should be noted that the cost of water and water storage is increasing at a rate well above other
development costs. At the time the City began the community outreach for the 2020 Development Fees the
best estimate we had was the previous estimate of $74M. Since that time a more comprehensive estimate
which also accounts for potential mitigation costs which may or may not be realized has been developed. The
City did not feel that it was fair to adjust the Water Supply Requirement for 2020 after conducting the
outreach. The City will update the costs as more information becomes available and mitigation requirements
are refined and update the Water Supply Requirement fee on a 2 year cycle with the next update coming in
2022.
2019 Capital Expansion Fee Updates
The chart below shows the current and proposed fee updates for CEFs:
Step III fees are a 12.6 % increase from current fee levels (Step II). CEF fee increases are 100% of full fee
levels recommended in 2017. The CPI-U index for Denver-Aurora-Lakewood is used for CEF inflation. The
Engineering News Record for TCEFs.
Comparison Charts
Fort Collins proposed fees are in the upper-middle of the pack:
Step III - Full fees proposed in 2017 with inflation
Land Use Type Unit
N'hood
Park
Comm.
Park Fire Police Gen. Gov't
Step III
Total w
Inflation
%
Increase
w Inflation
TCEF
Total w
Inflation
Total %
Increase
w Inflation
Residential, up to 700 sq. ft. Dwelling $1,855 $2,619 $454 $254 $619 $5,801 12.6% $2,336 8.9%
Residential, 701-1,200 sq. ft. Dwelling $2,483 $3,506 $614 $344 $834 $7,782 12.6% $4,338 8.0%
Residential, 1,201-1,700 sq. ft. Dwelling $2,712 $3,828 $668 $374 $911 $8,493 12.6% $5,632 7.5%
Residential, 1,701-2,200 sq. ft. Dwelling $2,740 $3,868 $679 $379 $925 $8,591 12.6% $6,586 7.1%
Residential, over 2,200 sq. ft. Dwelling $3,053 $4,312 $756 $423 $1,029 $9,573 12.6% $7,059 7.2%
Commercial 1,000 sq. ft. 0 0 $572 $320 $1,564 $2,456 12.6% $8,594 3.1%
Office and Other Services 0 0 $572 $320 $1,564 $2,456 12.6% $6,331 3.7%
Industrial/Warehouse 1,000 sq. ft. 0 0 $134 $74 $369 $577 12.6% $2,043 3.1%
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 5
The following chart shows neighboring cities across water districts with and without raw water. Fort Collins fees
are in line with neighboring cities:
Fort Collins fees and the cost of code is leveling as a percentage of median new home sales price:
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 6
Below is the 2019 fee roadmap:
CITY FINANCIAL IMPACTS
2019 fee updates were discussed with Council Finance Committee in May and August of 2019. Fee updates
will result in an increase to fee payers.
BOARD / COMMISSION RECOMMENDATION
2019 fee updates were discussed with Council Finance Committee in May and August of 2019. Council
Finance Committee recommended bringing the topic forward at the October 8th Council Work Session. From
the Work Session, Council recommended ordinance readings in November 2019 as next steps.
PUBLIC OUTREACH
In an effort towards better communication, outreach and notification of impact fee changes, staff met with nine
organizations across the City in the summer of 2019.
May June/July August October November 1/1/2020
Capital Expansion Fees CFC Outreach CFC Council Ordinance Effective
Transportation CEFs
Electric Capacity Fees CFC Outreach CFC Council Ordinance Effective
Water Supply Requirement CFC Outreach CFC Council Ordinance Effective
Wet Utility Fees CFC Outreach CFC Council Ordinance Effective
Building Development Fees Working Group Working Group
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
Agenda Item 8
Item # 8 Page 7
Overall, organizations were supportive of the approach and cadence. There was acknowledgement that
regular fee updates are necessary.
Staff also heard:
• Supportive of 2018 fee group recommendations
• Progressive fees/if where possible
• Investigate revenue alternatives to support parks refresh & maintenance
• Explore stronger support for affordable housing
• Concerns about attainable housing - it may be less desirable to live here
• Policy questions - development standards going forward, alignment on total cost including operations
and maintenance
Additional communications to existing non-residential customers impacted by excess water use surcharges, as
well as customer feedback, is included in the Customer Communication Excess Water Surcharges attachment.
ATTACHMENTS
1. 2019 Fee Updates Council Work Session updated 2019-10-08 (PPTX)
2. Approved CFC Minutes 031819 (PDF)
3. Approved CFC Minutes 052019 (PDF)
4. Draft CFC Minutes 081919 (DOCX)
5. EAC Capital Expansion Fees Memo Final (PDF)
6. Work Session Memo on 2019 Fee Updates 2019-10-11 (PDF)
7. Customer Communication Excess Water Surcharges (PDF)
ATTACHMENT 1
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Attachment: First Reading Agenda Summary, November 5, 2019 (w/o attachments) (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 130, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 7.5 OF THE CODE OF THE CITY OF FORT
COLLINS TO IMPLEMENT THE PHASE III INCREASES FOR THE CAPITAL
EXPANSION FEES AND INCREASE FOR INFLATION THE CAPITAL EXPANSION FEES
AND THE TRANSPORTATION EXPANSION FEE
WHEREAS, the City is a home rule municipality having the full right of self-government
in local and municipal matters under the provisions of Article XX, Section 6 of the Colorado
Constitution; and
WHEREAS, among the City’s home rule powers is the power to regulate, as a matter of
purely local and municipal concern, the development of real property within the City and establish
impact fees for such development; and
WHEREAS, the City Council has determined that new development should contribute its
proportionate share of providing the capital improvements that are typically funded with impact
fees; and
WHEREAS, the City Council has broad legislative discretion in determining the
appropriate funding mechanisms for financing the construction of public facilities in the City; and
WHEREAS, in early 2016, City staff initiated a comprehensive review of its various impact
fees now charged to new development, including its community parkland, neighborhood parkland,
police, fire protection and general government capital expansion fees (collectively, “Capital
Expansion Fees”), and the City’s street oversizing capital improvement expansion fee, now called
the transportation expansion fee (“TEF”); and
WHEREAS, as a result of that review, the City commissioned an impact fee study for the
Capital Expansion Fees that has resulted in the “Capital Expansion Fee Study” dated August 2016
(the “CEF Study”), which has identified the need to increase such Capital Expansion Fees by
various amounts; and
WHEREAS, the City also commissioned an impact fee study for the TEF that has resulted
in the “Transportation Capital Expansion Fee Study” dated April 2017 (the “TEF Study”), which
has also identified the need to increase and decrease the TEF by various amounts depending on
the type of development proposed; and
WHEREAS, City Code Section 7.5-18 provides that the Capital Expansion Fees and the
TEF shall also be increased or decreased annually for inflation; and
WHEREAS, in 2017, City Council adopted Ordinance No. 049, 2017, implementing,
beginning on October 1, 2017, the Phase I increases of the Capital Expansion Fees to 75% of the
increased amounts recommended in the CEF Study and of the TEF to 80% of the increased
amounts recommended in the TEF Study, but fully implementing the recommended reductions to
the TEF; and
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
-2-
WHEREAS, in 2018, City Council adopted Ordinance No. 166, 2018, implementing,
beginning on January 1, 2019, the Phase II increases of the Capital Expansion Fees to 90% of
amounts recommended in the CEF Study, plus inflation, and of the TEF to 100% of the amounts
recommended in the TEF Study, plus inflation; and
WHEREAS, based on the CEF Study and the general approach and direction of City
Council, including the Council Finance Committee, this Ordinance enacts Phase III of the
increases to the Capital Expansion Fees; and
WHEREAS, this Ordinance increases the Capital Expansion Fees to 100% of the amounts
recommended in the CEF Study, plus inflation, beginning on January 1, 2020; and
WHEREAS, this Ordinance also increases the TEF, but for inflation only; and
WHEREAS, for the foregoing reasons, the City Council has determined that it is in the best
interest of the City and its citizens and necessary for the protection of the public’s health, safety
and welfare, that the Capital Expansion Fees and the TEF be increased as hereafter provided.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 7.5-28(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 7.5-28. - Community parkland capital expansion fee.
(a) There is hereby established a community parkland capital expansion fee which shall be
imposed pursuant to the provisions of this Article for the purpose of funding capital
improvements related to the provision of community parks, as such improvements may be
identified in the capital improvements plan for community parkland. Such fee shall be payable
prior to the issuance of any building permit for a residential structure. The amount of such fee
shall be determined per dwelling unit as follows:
2019
As of January 1,
2020
Resid., up to 700 sq. ft. $2,326.00 $2,619.00
Resid., 701 to 1,200 sq. ft. 3,114.00 3,506.00
Resid., 1,201 to 1,700 sq. ft. 3,400.00 3,828.00
Resid., 1,701 to 2,200 sq. ft. 3,436.00 3,868.00
Resid., over 2,201 sq. ft. 3,830.00 4,312.00
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
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In the case of duplexes and multi-family structures, the amount of the fee for each dwelling unit
shall be based upon the average size of the dwelling units contained within each such structure.
Section 3. That Section 7.5-29(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 7.5-29. - Police capital expansion fee.
(a) There is hereby established a police capital expansion fee which shall be imposed pursuant to
the provisions of this Article for the purpose of funding capital improvements related to the
provision of police services, as such improvements may be identified in the capital
improvements plan for police services. Such fee shall be payable prior to the issuance of any
building permit for a residential, commercial or industrial structure. The amount of such fee
shall be determined as follows:
2019
As of January 1,
2020
Resid., up to 700 sq. ft. $226.00 $254.00
Resid., 701 to 1,200 sq. ft. 305.00 344.00
Resid., 1,201 to 1,700 sq. ft. 332.00 374.00
Resid., 1,701 to 2,200 sq. ft. 337.00 379.00
Resid., over 2,200 sq. ft. 375.00 423.00
Commercial buildings (per 1,000
sq. ft.)
284.00
320.00
Industrial buildings (per 1,000 sq.
ft.)
66.00
74.00
In the case of duplexes and multi-family structures, the amount of the fee for each dwelling unit
shall be based upon the average size of the dwelling units contained within each such structure.
Section 4. That Section 7.5-30(a) of the Code of the City of Fort Collins is hereby amended
to read as follows:
Sec. 7.5-30. - Fire protection capital expansion fee.
(a) There is hereby established a fire protection capital expansion fee which shall be imposed
pursuant to the provisions of this Article for the purpose of funding capital improvements
related to the provision of fire services, as such improvements may be identified in the capital
improvements plan for fire protection services. Such fee shall be payable prior to the issuance
of any building permit for a residential, commercial or industrial structure. The amount of
such fee shall be determined as follows:
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
-4-
2019
As of January 1,
2020
Resid., up to 700 sq. ft. $403.00 $454.00
Resid., 701 to 1,200 sq. ft. 546.00 614.00
Resid., 1,201 to 1,700 sq. ft. 593.00 668.00
Resid., 1,701 to 2,200 sq. ft. 603.00 679.00
Resid., over 2,200 sq. ft. 671.00 756.00
Commercial buildings (per 1,000 sq. ft.) 508.00 572.00
Industrial buildings (per 1,000 sq. ft.) 119.00 134.00
In the case of duplexes and multi-family structures, the amount of the fee for each dwelling unit
shall be based upon the average size of the dwelling units contained within each such structure.
Section 5. That Section 7.5-31(a) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 7.5-31. - General governmental capital expansion fee.
(a) There is hereby established a general governmental capital expansion fee which shall be
imposed pursuant to the provisions of this Article for the purpose of funding capital
improvements related to the provision of general governmental services, as such
improvements may be identified in the capital improvements plan for general governmental
services. Such fee shall be payable prior to the issuance of any building permit for a
residential, commercial or industrial structure. The amount of such fee shall be determined as
follows:
2019
As of January
1, 2020
Resid., up to 700 sq. ft. $549.00 619.00
Resid., 701 to 1,200 sq. ft. 741.00 834.00
Resid., 1,201 to 1,700 sq. ft. 809.00 911.00
Resid., 1,701 to 2,200 sq. ft. 821.00 925.00
Resid., over 2,200 sq. ft. 914.00 1,029.00
Commercial buildings (per 1,000 sq. ft.) 1,389.00 1,564.00
Industrial buildings (per 1,000 sq. ft.) 327.00
327.00
369.00
In the case of duplexes and multi-family structures, the amount of the fee for each dwelling unit
shall be based upon the average size of the dwelling units contained within each such structure.
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
-5-
Section 6. That Section 7.5-32 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 7.5-32. - Transportation expansion fee.
There is hereby established a transportation expansion fee which shall be imposed pursuant to the
provisions of this Article for the purpose of funding transportation improvements related to the
provision of transportation services. Such fees shall be payable prior to the issuance of any building
permit for a residential, commercial or industrial structure. These fees shall be deposited in the
“transportation improvements fund” established in § 8-87. The amount of such fee shall be
determined as follows:
TRANSPORTATION EXPANSION FEE SCHEDULE
2019
As of January
1, 2020
Resid., up to 700 sq. ft. $2,321.00 $2,336.00
Resid., 701 to 1,200 sq. ft. 4,310.00
4,338.00
Resid., 1,201 to 1,700 sq. ft. 5,596.00 5,632.00
Resid., 1,701 to 2,200 sq. ft. 6,543.00 6,586.00
Resid., over 2,200 sq. ft. 7,014.00 7,059.00
Commercial 8,539.00 8,594.00
Office and Other Services 6,291.00 6,331.00
Industrial/Warehouse 2,030.00 2,043.00
Section 7. That Section 7.5-71(b) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 7.5-71. - Neighborhood parkland capital expansion fee.
(b) The amount of the fee established in this Section shall be determined for each dwelling unit
as follows:
2019
As of January 1,
2020
Resid., up to 700 sq. ft. $1,647.00 $1,855.00
Resid., 701 to 1,200 sq. ft. 2,205.00 2,483.00
Resid., 1,201 to 1,700 sq. ft. 2,408.00 2,712.00
Resid., 1,701 to 2,200 sq. ft. 2,433.00 2,740.00
Resid., over 2,200 sq. ft. 2,712.00 3,053.00
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
-6-
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Attachment: Ordinance No. 130, 2019 (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 131, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT
COLLINS REGARDING CALCULATION AND COLLECTION OF
DEVELOPMENT FEES IMPOSED FOR THE CONSTRUCTION
OF NEW OR MODIFIED ELECTRIC SERVICE CONNECTIONS
WHEREAS, the City Council is empowered and directed by Article XII, Section 6, of the
City Charter to fix, establish, maintain and provide for the collection of such rates, fees or charges
for utility services furnished by the City as will produce revenues sufficient to pay the costs,
expenses and other obligations of the electric utility, as set forth therein; and
WHEREAS, pursuant to City Code Sections 26-473 through 26-475, the City imposes
development fees for new or modified electric service connections, including an Electric Capacity
Fee (“ECF”) and a Building Site Charge (“BSC”); and
WHEREAS, the ECF is a one-time charge designed to recover the initial cost of adding
new development to the electric system, and the BSC is designed to recover actual time and
materials costs associated with building on site electric facilities at the specific development; and
WHEREAS, the ECF and BSC together represent the total electric plant investment fee
(PIF) for new development; and
WHEREAS, Fort Collins Utilities staff uses an approved cost allocation methodology to
calculate ECF and BSC to assign costs based on actual system value, i.e. the “buy-in” approach
also used to calculate service connection fees for water and wastewater services; and
WHEREAS, the values and costs used in applying this cost allocation methodology are
updated on a two-year cycle; and
WHEREAS, the Energy Board considered the proposed 2019 ECF and BSC adjustments
at its meeting on September 12, 2019, and recommended approval of the adjustments; and
WHEREAS, based on the foregoing, it is the desire of the City Council to amend Chapter
26 of the City Code to update the values and costs applied in calculating ECF and BSC for new or
modified electric service connections.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 26-474(b) of the Code of the City of Fort Collins is hereby
amended to read as follows:
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Attachment: Ordinance No. 131, 2019 (8456 : SR 130-135 2019 Fee Update)
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Sec. 26-474. Residential electric development fees and charges.
. . .
(b) The ECF shall be the total of the dwelling unit charge and systems modification
charge, to be determined as follows:
(1) The dwelling unit charge shall be as follows:
a. For a single-family panel size with one hundred fifty (150) amp service
(nonelectric heat), per dwelling unit
$1,563
b. For a single-family panel size with two hundred (200) amp service $1,967
c. For a single-family with electric heat, per dwelling unit $2,587
d. For a multi-family panel size with one hundred fifty (150) amp service (non-
electric heat), per dwelling unit
$1,382
e. For a multi-family panel size with two hundred (200) amp service or with one
hundred fifty (150) amp service with electric heat, per dwelling unit
$2,108
. . .
Section 3. That Section 26-474(d) of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-474. Residential electric development fees and charges.
. . .
(d) A Building Site Charge (“BSC”) for any new or modified residential service shall
consist of the total of the applicable charges as described in this Subsection (d), and shall
be paid as specified herein.
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Attachment: Ordinance No. 131, 2019 (8456 : SR 130-135 2019 Fee Update)
-3-
. . .
(2) When any new or modified residential service requires installation by the
Utility of secondary service the BSC shall include a secondary service charge
(SSC), and shall be paid at the time of building permit and based upon the current
rates as of the time of issuance of the building permit. The SSC for single-family
and duplex residences shall be the total of the secondary service charges,
determined as follows:
a. The secondary service charge shall be as follows:
Secondary
Service Size
Charge
(up to 65 feet)
Plus Per-Foot
Charge for
Each Foot Over 65
4/0 service $1,248.00 $8.70/Foot
4/0 Mobile Home Service $987.00 N/A
. . .
Section 4. That Section 26-475(b) and (d) of the Code of the City of Fort Collins is
hereby amended to read as follows:
Sec. 26-475. Nonresidential electric development fees and charges.
. . .
(b) The ECF shall be the total of the kVA service charge and systems modification
charge, to be determined as follows:
(1) The kVA service charge shall be determined as follows.
a. For customer electric loads served by the utility, the kVA service
charge shall be calculated as follows:
ECF shall be calculated as follows:
secondary metered services $/kW = 341.28 + 21.82 x ln(kW)
primary metered services $/kW = 227.04 + 5.93 x ln(kW),
Where ln is the natural logarithm
kW is calculated as follows:
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Attachment: Ordinance No. 131, 2019 (8456 : SR 130-135 2019 Fee Update)
-4-
three phase services kW = A x V x SQRT(3) x PF x 0.3/1000
single phase services kW = A x V x PF x 0.3/1000
Where A is the requested amperage. V is requested line to line voltage. PF is the
power factor, which is assumed to be 0.9.
. . .
(d) A Building Site Charge (“BSC”) for extending primary circuitry to the transformer
for any new or modified nonresidential service shall be invoiced and paid in the same
manner and at the same time as the ECF is invoiced and paid pursuant to § 26-475(a). The
BSC shall be the total of the primary circuit charge, transformer installation charge and any
additional charges, determined as follows:
(1) The primary circuit charge for service from the utility source to the
transformer shall be as follows:
a. For single-phase service, per foot of primary circuit $18.54
b. For three-phase service, per foot of primary circuit $27.61
(2) The transformer installation charge shall be as follows:
a. For single-phase service, per transformer $1,708.51
b. For three-phase service, per transformer $3,166.54
. . .
Section 5. That the modifications set forth above shall be effective for all fees paid
on or after January 1, 2020.
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Attachment: Ordinance No. 131, 2019 (8456 : SR 130-135 2019 Fee Update)
-5-
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Attachment: Ordinance No. 131, 2019 (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 132, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT
COLLINS TO REVISE SEWER PLANT INVESTMENT FEES
WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the
Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain, and
provide for the collection of such rates, fees or charges for water and for other utility services
furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other
obligations as set forth therein; and
WHEREAS, Article IV, Chapter 26 of the City Code establishes and sets forth the
wastewater utility as a utility service furnished by and an enterprise of the City; and
WHEREAS, City Code Sections 26-283 and 26-284 provide for sewer plant investment
fees (“SPIFs”) to be based on and used for growth-related capital expansion costs of wastewater
collection, transmission, treatment, and administrative facilities that are reasonably related to the
overall costs of and required in providing wastewater services to serve new development; and
WHEREAS, City Code Section 26-283 further requires that the City Manager annually
review the parameters and rates of the SPIFs and also requires that the City Manager present such
fees to the City Council for approval no less frequently than biennially; and
WHEREAS, the City Manager and City staff have also recommended to the City Council
adjustment of the SPIFs; and
WHEREAS, the Water Board considered the proposed SPIFs adjustments at its meeting
on September 19, 2019, and recommended approval of the proposed adjustments; and
WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City
Code to adjust the scope and rate of the PIFs as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes any and all determinations and findings
contained in the recitals set forth above.
Section 2. That Section 26-284 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-284. - Sewer plant investment fees and surcharges established.
(a) The schedule of sewer plant investment fees, subject to the exceptions and
additional requirements provided in this Section, is as follows:
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Attachment: Ordinance No. 132, 2019 (8456 : SR 130-135 2019 Fee Update)
-2-
Category SPIF
A Single-family
Per
dwelling
$3,590.00
B and C Duplex and Multi-family
Per each
dwelling
unit or
mobile
home space
$2,590.00
D, E, F Non-residential and Industrial
Water meter size (inches) Fee Fee
¾ $7,710.00
1 $17,190.00
1½ $32,350.00
2 $67,120.00
3 and above
Calculated on an individual
basis based on peak wastewater
flow (determined in the manner
set forth hereinafter) but not
less than the charge for a two-
inch meter
G User outside
Same as equivalent category,
plus any special sanitation
district fees
H Special
Determined pursuant to
Subsection (d) of this Section
. . .
(d) The amount of the plant investment fee and surcharge for each nonresidential
surcharged user, users in Category H and any user that is expected to generate greater than its
proportionate share of peak day flow at the treatment plant for the applicable category
(including both contributed wastewater volume and volume related to infiltration and inflow),
shall be calculated utilizing the following formula:
SPIF = Site Flow × [Flow$ + (BOD × BOD$
) + (TSS × TSS$)] + I&I Flow × [Flow$
+ (200 mg/l
× BOD$) + (250 mg/l × TSS$
)]
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Attachment: Ordinance No. 132, 2019 (8456 : SR 130-135 2019 Fee Update)
-3-
Where:
SPIF =
Plant investment fee for Category H users and users
discharging wastewater with average concentrations of
BOD and/or TSS which exceed those average
concentrations which are set forth in § 26-282(b) under
Category E-34
Site
Flow
=
The user's proportionate share of peak day flow at the
treatment plant based on site flow discharge from
user's site
I&I
Flow
=
That proportionate share of peak day flow due to
infiltration and inflow as allocated to user's site flow
discharge. I&I Flow is calculated based on Site Flow
multiplied by
46.5%
Flow$ =
Unit cost of facilities attributable to treating
wastewater flow
Per Gallon $9.81
BOD =
Average BOD concentration for user category or
measured BOD concentration for the user as
determined in accordance with Subsection (c) of this
Section, but not less than 200 mg/l
BOD$ = Unit cost of facilities attributable to treating BOD Per mg/l $0.0147
TSS =
Average TSS concentration for user category or
measured TSS concentration for the user as determined
in accordance with Subsection (c) of this Section, but
not less than 250 mg/l
TSS$ = Unit cost of facilities attributable to treating TSS Per mg/l $0.0117
. . .
(f) For purposes of this Section, the proportionate share of peak day flow at the treatment plant
for users in Categories D, E and F shall be deemed to be:
Water Meter Size
(inches)
Peak Flow (gallons per day)
¾ 491
1 1,045
1½ 1,965
2 4,077
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Attachment: Ordinance No. 132, 2019 (8456 : SR 130-135 2019 Fee Update)
-4-
3 and greater
Calculated on an individual basis based on user's proportionate share
of peak day flow at the treatment plant (including both contributed
wastewater volume and volume related to infiltration and inflow) but
not less than the peak day flow for a two-inch meter
Section 4. That the modifications set forth above shall be effective for all fees paid on
or after January 1, 2020.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
1.d
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Attachment: Ordinance No. 132, 2019 (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 133, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT
COLLINS TO REVISE THE STORMWATER PLANT INVESTMENT FEES
WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the
Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain, and
provide for the collection of such rates, fees or charges for water and for other utility services
furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other
obligations as set forth therein; and
WHEREAS, Article VII, Chapter 26 of the City Code establishes the stormwater utility as
a utility service furnished by and an enterprise of the City; and
WHEREAS, City Council has adopted stormwater basin and City-wide master plans
recommending stormwater facilities necessary to provide for proper drainage and control of flood
and surface waters within the City; and
WHEREAS, in 1998, City Council adopted ordinance No. 168, 1998, determining that all
lands within the City benefit by the installation of such stormwater facilities; and
WHEREAS, existing stormwater rate payers have paid for the design, right of way, and
construction of stormwater facilities identified in the drainage basin master plans that will benefit
and be utilized by new development; and
WHEREAS, City Council has determined that new development should pay its
proportionate share of the costs of capital stormwater facilities in existence at the time of
development in the form of a stormwater plant investment fee as established by City Code Section
26-512 (“Stormwater PIF”); and
WHEREAS, City Code Section 26-511 requires that the City Manager review the rates and
parameters for the Stormwater PIF annually and present them to City Council for approval no less
frequently than biennially; and
WHEREAS, the City Manager and City staff have also recommended to the City Council
adjustment of the Stormwater PIF as set forth herein; and
WHEREAS, the Water Board considered the proposed Stormwater PIF adjustments for at
its meeting on September 19, 2019, and recommended approval of the proposed adjustments; and
WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City
Code to adjust the scope and rate of the Stormwater PIF as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
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Attachment: Ordinance No. 133, 2019 (8456 : SR 130-135 2019 Fee Update)
-2-
Section 1. That the City Council hereby makes any and all determinations and findings
contained in the recitals set forth above.
Section 2. That Section 26-512 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-512. - Stormwater plant investment fees established.
. . .
(2) Plant investment fee base rate. The stormwater plant investment fee base rate is
hereby established as follows:
Per gross acre of area $9,447
. . .
Section 3. That the modifications set forth above shall be effective for all fees paid on
or after January 1, 2020.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
1.e
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Attachment: Ordinance No. 133, 2019 (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 134, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT
COLLINS TO REVISE WATER PLANT INVESTMENT FEES
WHEREAS, the City Council is empowered and directed by Article XII, Section 6 of the
Charter of the City of Fort Collins, to by ordinance from time to time fix, establish, maintain, and
provide for the collection of such rates, fees or charges for water and for other utility services
furnished by the City as will produce revenues sufficient to pay the costs, expenses, and other
obligations as set forth therein; and
WHEREAS, Article III, Chapter 26 of the City Code establishes and sets forth the water
utility as a utility service furnished by and an enterprise of the City; and
WHEREAS, City Code Sections 26-120 and 26-128 provide for water plant investment
fees (“WPIFs”) to be based on and used for growth-related capital expansion costs of water supply,
storage, transmission, treatment and distribution, and administrative facilities that are reasonably
related to the overall costs of and required in providing water services to serve new development;
and
WHEREAS, City Code Section 26-120 further requires that the City Manager annually
review the parameters and rates of the WPIFs and also requires that the City Manager present such
fees to the City Council for approval no less frequently than biennially; and
WHEREAS, the City Manager and City staff have also recommended to the City Council
adjustment of the WPIFs, as set forth herein; and
WHEREAS, the Water Board considered the proposed WPIFs adjustments at its meeting
on September 19, 2019 and recommended approval of the proposed adjustments; and
WHEREAS, based on the foregoing, City Council desires to amend Chapter 26 of the City
Code to adjust the scope and rate of the WPIFs as set forth herein.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes any and all determinations and findings
contained in the recitals set forth above.
Section 2. That Section 26-128 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-128. Schedule C, water plant investment fees.
The water plant investment fee prescribed in § 26-120 shall be payable by users both inside
and outside of the City, as follows:
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Attachment: Ordinance No. 134, 2019 (8456 : SR 130-135 2019 Fee Update)
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(1) Single-family residential buildings.
For a single-family residential lot greater than one-half (½) acre in
size, the lot size shall be deemed to be one-half (½) acre for the
purpose of this fee calculation. For each additional tap or meters larger
than three-fourths (¾) inch, the nonresidential rate shall apply.
a. For the first three-fourths-inch water tap or meter $730.00
b. For the first one-inch water tap or meter to accommodate
residential fire suppression systems based upon the criteria
established in the International Building Code as adopted and
amended pursuant to Chapter 5 of this Code.
$1,237.00
c. Plus, for each square foot of lot area $0.39
(2) Residential buildings of two (2) or more dwelling units
The fee will provide for one (1) tap per residential building and an
adequate number of additional taps to serve common irrigable areas,
if any. The number and size of taps shall be determined by the Utilities
Executive Director based upon the criteria established in the Uniform
Plumbing Code as amended pursuant to Chapter 5 of this Code.
a. For each residential building unit $550.00
b. Plus, for each square foot of lot area $0.29
(3) Mobile home parks
The size of the tap shall be determined by the Utilities Executive
Director based upon the criteria established in the Uniform Plumbing
Code as amended pursuant to Chapter 5 of this Code.
a. For each residential building unit $550.00
b. Plus, for each square foot of lot area $0.29
(4) Hotels, rooming houses, sororities, fraternities and similar uses.
The nonresidential rate shall apply.
(5) Nonresidential service
a. Service to all nonresidential taps, including, but not limited
to, taps for commercial and industrial service, shall be charged
according to the size of the meter pursuant to the following
schedule:
Meter Size (inches)
Non-
residential
Plant
Investment
Fee
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Attachment: Ordinance No. 134, 2019 (8456 : SR 130-135 2019 Fee Update)
-3-
¾ $8,790.00
1 $23,060.00
1½ $45,610.00
2 $78,820.00
b. The fee for all meters larger than two (2) inches shall be
calculated by multiplying the estimated peak daily demand by the
following charge per gallon, but shall not be less than the charge
for a two-inch meter.
$5.23
Section 3. That the modifications set forth above shall be effective for all fees paid on
or after January 1, 2020.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Attachment: Ordinance No. 134, 2019 (8456 : SR 130-135 2019 Fee Update)
-4-
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Attachment: Ordinance No. 134, 2019 (8456 : SR 130-135 2019 Fee Update)
-1-
ORDINANCE NO. 135, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF
FORT COLLINS TO REVISE THE WATER SUPPLY REQUIREMENTS FEES
WHEREAS, the City Council is empowered and directed by Article XII, Section 6, of the
City Charter to fix, establish, maintain, and provide for the collection of such rates, fees, or charges
for utility services furnished by the City as will produce revenues sufficient to pay the costs,
expenses, and other obligations of the water utility, as set forth therein; and
WHEREAS, the City owns and operates a water utility that provides treated water service
to customers with its service area; and
WHEREAS, through various water supply furnishing or development programs, the City
has historically required that persons desiring new or increased water service from the water utility,
among other things, furnish or otherwise provide to the City certain rights to use water or payments
of cash-in-lieu thereof in order to offset the impacts of the requested water service, which
requirements are currently set forth in Sections 26-129 and 26-146 through 26-150 of the Code of
the City of Fort Collins as the water supply requirements (“WSR”); and
WHEREAS, City staff has historically reviewed the WSRs periodically to ensure that the
rights to use water and cash payments received by the City are sufficient; and
WHEREAS, City staff has completed a review of the WSR and has determined that an
increase in the cash-in-lieu related excess water use surcharge rate is necessary to ensure that,
among other things, the impacts of new and increased water service are offset and that the water
utility has sufficient water supplies and infrastructure to serve customers of the water utility with
an adequate level of service.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 26-129 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-129. - Schedule D, miscellaneous fees and charges.
The following fees and service charges shall be paid by water users, whether inside or outside
the City limits:
(a) Connection fees and service charges shall be as set forth in Subsection 26-712(b).
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Attachment: Ordinance No. 135, 2019 (8456 : SR 130-135 2019 Fee Update)
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(b) The fire hydrant fees and charges shall be as follows:
(1) For installation of meter Per meter $43.00
(2) For removal of meter Per meter $43.00
(3) For daily rental for meter and fittings Per meter $8.60
(4) For water service
Per 1,000
gallons
$13.36
A deposit may be required in the amount of the charges for the
anticipated water usage and rental.
(c) The fees and requirements for water supply shall be as follows:
(1) To satisfy Water Supply Requirement (WSR) with cash
payments
Per
acre-foot
of WSR
$21,500.00
(2) Excess water use surcharge assessed on commercial and
irrigation taps when water use is in excess of the applicable annual
allotment
Per 1,000
gallons
$10.09
(3) The annual water allotment, based on the minimum WSR shall be as
follows:
Meter Size (inches)
Annual
Allotment
(gallons/
year)
¾ 293,270
1 739,680
1½ 1,538,020
2 2,577,480
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Attachment: Ordinance No. 135, 2019 (8456 : SR 130-135 2019 Fee Update)
-3-
Above 2
325,851
gallons per
acre foot of
WSR
. . .
Section 3. That the modifications set forth above shall be effective for all fees paid on
or after January 1, 2020.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
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Attachment: Ordinance No. 135, 2019 (8456 : SR 130-135 2019 Fee Update)
Agenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Theresa Connor, Water Engineering Field Operations Mgr
Eric Potyondy, Legal
SUBJECT
Second Reading of Ordinance No. 136, 2019, Amending Chapter 26 of the Code of the City of Fort Collins to
Clarify the Application of Certain Water-Related Fees to Different Forms of Fraternity and Sorority Housing.
EXECUTIVE SUMMARY
This Ordinance unanimously adopted on First Reading on November 5, 2019, amends Chapter 26 of City
Code to clarify the application of certain water-related fees to different forms of fraternity and sorority housing.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (PDF)
2. Ordinance No. 136, 2019 (PDF)
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Agenda Item 9
Item # 9 Page 1
AGENDA ITEM SUMMARY November 5, 2019
City Council
STAFF
Theresa Connor, Water Engineering Field Operations Mgr
Eric Potyondy, Legal
SUBJECT
First Reading of Ordinance No. 136, 2019, Amending Chapter 26 of the Code of the City of Fort Collins to
Clarify the Application of Certain Water-Related Fees to Different Forms of Fraternity and Sorority Housing.
EXECUTIVE SUMMARY
The purpose of this item is to amend Chapter 26 of the City Code to clarify the application of certain water-
related fees to different forms of fraternity and sorority housing.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
An applicant for a proposed land use change has brought to staff’s attention that the nature of fraternity and
sorority housing is changing from dormitory style housing with large commercial kitchens to multi-family style
housing without shared kitchens and bathrooms. Currently City Code has one category for fraternity and sorority
housing as a commercial customer which reflects the traditional dormitory style housing with a large commercial
kitchen and shared bathrooms.
As an example, consider a multi-family dwelling building. An application to use that multi-family dwelling building
as fraternity housing would cause a change in the water utility rates and fees to a commercial customer. The
increased water and wastewater plant investment fee requirements would be approximately $230,000, despite
the fact that there would be no required changes to the plumbing or number of fixtures in the building.
In discussions with the applicant and their representatives, staff has learned that the nature of fraternity and
sorority is changing to be more flexible. The ability to staff the kitchens is causing fraternities and sororities to
move away from commercial kitchens towards self-contained units. This allows the owner of the building more
flexibility in future real estate markets if the fraternity or sorority decides to make a change in their housing
arrangement. Staff is proposing changes to City Code that create two categories of fraternity and sorority
housing: (1) dormitory (or traditional) fraternity and sorority housing; and (2) multi-family fraternity and sorority
housing. This would reflect the changing nature of fraternity and sorority housing and clarify the subsequent
collection of water and sewer plant investment fees and water supply requirements for these housing types.
CITY FINANCIAL IMPACTS
None
ATTACHMENT 1
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8459 : SR 136 Utility Services)
Agenda Item 9
Item # 9 Page 2
BOARD / COMMISSION RECOMMENDATION
The Water Board voted unanimously, 8-0 on September 19, 2019, to recommend approval of the amendments.
PUBLIC OUTREACH
Outreach was conducted with a land use applicant seeking to use multi-family housing units as a fraternity and
their legal and engineering team. They expressed agreement with the proposed changes.
ATTACHMENTS
1. Minutes Excerpt - Greek Housing (PDF)
ATTACHMENT 1
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8459 : SR 136 Utility Services)
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ORDINANCE NO. 136, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING CHAPTER 26 OF THE CODE OF THE CITY OF FORT COLLINS
TO CLARIFY THE APPLICATION OF CERTAIN WATER-RELATED FEES
TO DIFFERENT FORMS OF FRATERNITY AND SORORITY HOUSING
WHEREAS, the City owns and operates a water utility that provides treated water service
to customers in its service area and a wastewater utility that provides wastewater service to
customers in its service area; and
WHEREAS, as a prerequisite for treated water service, the City charges a water plant
investment fee (“WPIF”) pursuant to City Code Sections 26-120 and 26-128 and a Water Supply
Requirement (“WSR”) pursuant to City Code Sections 26-147 through 26-150; and
WHEREAS, as a prerequisite for wastewater service, the City charges a sewer plant
investment fee (“SPIF”) pursuant to City Code Sections 26-283 and 26-284; and
WHEREAS, various City Code provisions in Chapter 26, such as the WPIF, WSR, and
SPIF, parallel land use designations in the City Code, including those in the Land Use Code; and
WHEREAS, there are various Greek letter organizations (referred to as fraternities and
sororities) in Fort Collins that are associated with Colorado State University; and
WHEREAS, fraternities and sororities have historically housed members in dormitory-
style housing that typically include commercial or kitchens and common bathrooms but are now
more frequently housing members in multi-family dwelling housing; and
WHEREAS, under City Code, the WPIF and the WSR for a particular development varies
depending on whether the development requires “residential” water service (which includes single-
family, duplex, mobile home, and multi-family dwelling units) or “nonresidential” water service
(which includes all water service not included in the residential water service category); and
WHEREAS, under City Code, the SPIF for a particular development varies depending on
whether the development is a “duplex and multi-family” or “non-residential and industrial”; and
WHEREAS, City Code has historically placed fraternity and sorority housing in the
nonresidential water service category, whether or not the housing is in the nature of multi-family
housing, and
WHEREAS, staff has recommended certain changes to portions of Chapter 26 of City Code
to clarify how the WPIF, the WSR, and the SPIF apply to fraternity and sorority housing depending
on whether it is dormitory-style housing or multi-family housing.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
-2-
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That Section 26-41 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-41. - Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section:
. . .
Fraternity and sorority houses shall mean the same as defined in the Land Use Code.
Fraternity and sorority multi-family housing shall mean any fraternity and sorority houses
that are organized as multi-family dwelling units with separate dwelling units that include
separate kitchens and bathrooms per dwelling unit.
Fraternity and sorority dormitory housing shall mean any fraternity and sorority houses
that do not meet the definition of fraternity or sorority multi-family housing.
. . .
Section 3. That Section 26-128 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-128. Schedule C, water plant investment fees.
The water plant investment fee prescribed in § 26-120 shall be payable by users both inside
and outside of the City, as follows:
(1) Single-family residential buildings.
For a single-family residential lot greater than one-half (½)
acre in size, the lot size shall be deemed to be one-half (½) acre
for the purpose of this fee calculation. For each additional tap
or meters larger than three-fourths (¾) inch, the nonresidential
rate shall apply.
a. For the first three-fourths-inch water tap or meter $730.00
b. For the first one-inch water tap or meter to
accommodate residential fire suppression systems based upon
the criteria established in the International Building Code as
adopted and amended pursuant to Chapter 5 of this Code.
$1,237.00
c. Plus, for each square foot of lot area $0.36
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
-3-
(2) Residential buildings of two (2) or more dwelling units (including
fraternity and sorority multi-family housing)
The fee will provide for one (1) tap per residential building
and an adequate number of additional taps to serve common
irrigable areas, if any. The number and size of taps shall be
determined by the Utilities Executive Director based upon the
criteria established in the Uniform Plumbing Code as
amended pursuant to Chapter 5 of this Code.
a. For each residential building unit $530.00
b. Plus, for each square foot of lot area $0.26
(3) Mobile home parks
The size of the tap shall be determined by the Utilities
Executive Director based upon the criteria established in the
Uniform Plumbing Code as amended pursuant to Chapter 5
of this Code.
a. For each residential building unit $530.00
b. Plus, for each square foot of lot area $0.26
(4) Hotels, fraternity and sorority dormitory housing, and similar uses.
The nonresidential rate shall apply.
(5) Nonresidential service
a. Service to all nonresidential taps, including, but not limited
to, taps for commercial and industrial service, shall be charged
according to the size of the meter pursuant to the following
schedule:
Meter Size (inches)
Nonresidential
Plant
Investment
Fee
¾ $7,940
1 $20,960
1½ $43,520
2 $72,470
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
-4-
b. The fee for all meters larger than two (2) inches shall be
calculated by multiplying the estimated peak daily demand by
the following charge per gallon, but shall not be less than the
charge for a two-inch meter.
$4.99
Section 4. That Section 26-148 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-148. - Water supply requirement (WSR); residential service.
(a) Residential service for WSR shall include single-family, duplex, mobile home, and
multi-family dwelling units, including fraternity and sorority multi-family housing.
Section 5. That Section 26-149 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-149. - Water supply requirement (WSR); nonresidential service.
(a) Nonresidential service for WSR shall apply to all services not included in the
residential category and shall include, without limitation, all service to customers
for: commercial; industrial; public entity; group housing, such as nursing homes,
fraternity and sorority dormitory housing; hotels and motels; and mixed-use
purposes.
. . .
Section 6. That Section 26-206 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-206. - Definitions.
The following words, terms and phrases, when used in this Article, shall have the meanings
ascribed to them in this Section:
. . .
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
-5-
Fraternity and sorority houses shall mean the same as defined in the Land Use Code.
Fraternity and sorority multi-family housing shall mean any fraternity and sorority houses
that are organized as multi-family dwelling units with separate dwelling units that include
separate kitchens and bathrooms per dwelling unit.
Fraternity and sorority dormitory housing shall mean any fraternity and sorority houses
that do not meet the definition of GLO multi-family housing.
. . .
Section 7. That Section 26-278 of the Code of the City of Fort Collins is hereby
amended to read as follows:
Sec. 26-278. - Classification of users.
The users of the wastewater utility may be divided into various classifications, including but not
limited to: single-family dwelling; duplex; multi-family dwelling which includes fraternity and
sorority multi-family housing; and nonresidential which includes fraternity and sorority dormitory
housing. Additional classifications may be established by the City for each nonresidential user
class. Mobile home parks are to be classified as multi-family dwellings. Hotels, rooming houses,
and similar uses are to be classified as nonresidential uses. Each user shall be classed into one (1)
of the following categories and charged at the applicable rate:
(1) Category A: Single-family residential users (either flat rate or metered water use).
(2) Category B: Duplex (two-family) residential users (either flat rate or metered water
use).
(3) Category C: Multi-family residential users (more than two (2) dwelling units
including mobile home parks and fraternity and sorority multi-family housing).
(4) Category D: Minor nonresidential user. A minor nonresidential user is a user who
discharges only wastes of a type and strength normally discharged by private
residences. Category D shall also apply to multi-family residential units under
construction during the period of service from the installation of the water meter to
the date the certificate of occupancy is issued. All nonresidential users not subject
to the provisions of Categories C, E and F shall be classed as minor nonresidential
users in Category D.
. . .
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
-6-
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
2.b
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Attachment: Ordinance No. 136, 2019 (8459 : SR 136 Utility Services)
Agenda Item 3
Item # 3 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Ken Mannon, Operations Services Director
Bob Adams, Recreation Director
John Duval, Legal
SUBJECT
Second Reading of Ordinance No. 137, 2019, Authorizing the City's Conveyance of Land to Facilitate the
Replatting of the Lot on which the City's Foothills Activity Center is Located.
EXECUTIVE SUMMARY
This Ordinance, unanimously adopted on First Reading on November 5, 2019, approves the exchange of
deeds between the City, the developer of the Foothills Mall and the owner of the Macy’s store in the Mall. This
exchange of deeds is needed to replat the lot on which the City’s Foothills Activity Center (FAC) is now located
to eliminate small encroachments that currently exist between the City’s FAC lot and adjacent properties
owned by the Mall developer and Macy’s. This replatting will remove these encroachments and ensure that the
FAC, as built, is located entirely and correctly within the City’s replatted lot.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (PDF)
2. Ordinance No. 137, 2019 (PDF)
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Agenda Item 10
Item # 10 Page 1
AGENDA ITEM SUMMARY November 5, 2019
City Council
STAFF
Ken Mannon, Operations Services Director
Bob Adams, Recreation Director
John Duval, Legal
SUBJECT
First Reading of Ordinance No. 137, 2019, Authorizing the City's Conveyance of Land to Facilitate the
Replatting of the Lot on which the City's Foothills Activity Center is Located.
EXECUTIVE SUMMARY
This item approves the exchange of deeds between the City, the developer of the Foothills Mall (the “Mall”) and
the owner of the Macy’s store in the Mall. This exchange of deeds is needed to replat the lot on which the City’s
Foothills Activity Center (the “FAC”) is now located to eliminate small encroachments that currently exist between
the City’s FAC lot and adjacent properties owned by the Mall developer and Macy’s. This replatting will remove
these encroachments and ensure that the FAC, as built, is located entirely and correctly within the City’s replatted
lot.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
As part of the redevelopment of the Mall by its owner Walton Foothills Holdings VI, L.L.C. (“Walton”), Walton and
the City agreed that Walton would construct and then convey the FAC to the City. It was agreed that the FAC
would be built on Lot 20 (“Original Lot 20”) as shown on the existing plat of the Foothills Mall Redevelopment
Subdivision (“Mall Subdivision”).
As the FAC was being constructed, it was discovered that a small portion of the building owned by Macy’s West
Stores, Inc. (“Macy’s”), now existing on Lot 2 of the Mall Subdivision (“Original Lot 2”), encroaches upon Original
Lot 20, so the FAC had to be built to accommodate this encroachment. After the FAC was constructed, it was
discovered that small portions of the FAC, as built, encroach onto Macy’s Original Lot 2 and onto Tract J of the
Mall Subdivision (“Original Tract J”), which is owned by Walton. It was also discovered that portions or the FAC’s
roof overhang over Lot 8 of the Mall Subdivision (“Original Lot 8”), over Lot 1 of the Mall Subdivision (“Original
Lot 1”) and over Original Tract J. Walton also owns Original Lot 1 and Original Lot 8.
A map generally depicting all these encroachments is attached as Exhibit “A” to the Ordinance (collectively, the
“Encroachments”).
When Walton conveyed the FAC to the City in March of 2016, the City and Walton agreed that Walton would
prepare and present for approval through the City’s land-use process a replat of Original Lots 1, 2, 8 and 20 and
a replat of Original Tract J to correct all the Encroachments and ensure that the FAC, as built, is located entirely
and correctly on a replatted Original Lot 20 (“Replatted Lot 20”). Walton is now going through this replatting
process.
ATTACHMENT 1
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8457 : SR 137 Land Conveyance FAC)
Agenda Item 10
Item # 10 Page 2
This Ordinance, if adopted, will facilitate this replatting through the approval of two bargain and sale deeds from
the City. The first is the Bargain and Sale Deed attached as Exhibit “B” to the Ordinance by which the City will
convey to Macy’s an approximately 80-square-foot portion of Original Lot 20 to account for Macy’s building’s
existing encroachment on Original Lot 20 (“City to Macy’s Deed”). The second is the Bargain and Sale Deed
attached as Exhibit “C” to the Ordinance by which the City will convey to Walton an approximately 24-square-
foot portion of Original Lot 20 to account for improvements on Original Tract J that now encroach on Original Lot
20 (“City to Walton Deed”).
To further facilitate these replattings, Macy’s will be delivering to the City the Bargain and Sale Deed attached
as Exhibit “D” to the Ordinance by which Macy’s will convey to the City an approximately 18-square-foot portion
of Original Lot 2 to account for a portion of the FAC having been built on Original Lot 2 (“Macy’s to City Deed”).
Walton will also deliver to the City the Bargain and Sale Deed attached as Exhibit “E” to the Ordinance by which
Walton will convey to the City portions of the airspace above Original Lot 1, Original Lot 8 and Original Tract J
to account for the overhangs of the FAC’s roof above these lots and tract (“Walton to City Deed”). These
overhangs are above approximately 469 total square feet of portions of Original Lot 1, Original Lot 8 and Original
Tract J.
Given the insignificant value of the very small slivers of land and airspace being exchanged that are comparable
in fair market value and considering that these exchanges are needed to account for the location of the FAC as
built on a Replatted Lot 20, there will be no exchange of money between the parties for these conveyances.
City Code Section 23-111(a) provides that the City Council is authorized to sell, convey, exchange or otherwise
dispose of real property owned by the City, provided the City Council finds by ordinance that such sale or
disposition is in the best interests of the City.
This Ordinance, if adopted, also authorizes the City Manager to sign on the City’s behalf, as the owner of
Replatted Lot 20, the new plat of the Mall Subdivision that creates Replatted Lot 20.
CITY FINANCIAL IMPACTS
This has no financial impacts for the City.
ATTACHMENT 1
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8457 : SR 137 Land Conveyance FAC)
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ORDINANCE NO. 137, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE CITY’S CONVEYANCE OF LAND TO
FACILITATE THE REPLATTING OF THE LOT ON WHICH
THE CITY’S FOOTHILLS ACTIVITY CENTER IS LOCATED
WHEREAS, as part of the redevelopment of the Foothills Mall (the “Mall”) by its owner
Walton Foothills Holdings VI, L.L.C. (“Walton”), Walton and the City agreed that Walton would
construct and then convey to the City the Foothills Activity Center (the “FAC”); and
WHEREAS, it was agreed that the FAC would be built on Lot 20 (“Original Lot 20”) as
currently shown on the existing plat of the Foothills Mall Redevelopment Subdivision (“Mall
Subdivision”); and
WHEREAS, as the new FAC was being constructed, it was discovered that a small portion
of the building owned by Macy’s West Stores, Inc. (“Macy’s”), now existing on Lot 2 of the Mall
Subdivision (“Original Lot 2”), encroaches upon Original Lot 20, so the FAC had to be built to
accommodate this encroachment; and
WHEREAS, after the FAC was constructed, it was discovered that small portions of the
FAC (as built) encroach onto Original Lot 2 and onto Tract J of the Mall Subdivision (“Original
Tract J”);
WHEREAS, it was also discovered that parts of the FAC’s roof overhang portions of Lot
8 of the Mall Subdivision (“Original Lot 8”), Lot 1 of the Mall Subdivision (“Original Lot 1”) and
Original Tract J; and
WHEREAS, Walton owns Original Lot 1, Original Lot 8 and Original Tract J; and
WHEREAS, a map generally depicting all these encroachments is attached as Exhibit “A”
and incorporated herein by reference (collectively, the “Encroachments”); and
WHEREAS, when Walton conveyed the FAC to the City in March of 2016, the City and
Walton agreed that Walton would prepare and present for approval through the City’s land-use
process a replat of Original Lots 1, 2, 8 and 20 and a replat of Original Tract J to correct all the
Encroachments and ensure that the FAC, as built, is located entirely and correctly on a replatted
Original Lot 20 (“Replatted Lot 20”); and
WHEREAS, Walton is now going through this replatting process; and
WHEREAS, to facilitate this replatting, this Ordinance approves two bargain and sale
deeds from the City; and
WHEREAS, the first is the Bargain and Sale Deed attached as Exhibit “B” and
incorporated herein by reference with which the City will convey to Macy’s an approximately 80-
3.b
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Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
-2-
square-foot portion of Original Lot 20 to account for Macy’s building’s existing encroachment on
Original Lot 20 (“City to Macy’s Deed”); and
WHEREAS, the second is the Bargain and Sale Deed attached as Exhibit “C” and
incorporated herein by reference with which the City will convey to Walton an approximately 24-
square-foot portion of Original Lot 20 to account for improvements on Original Tract J
encroaching on Original Lot 20 (“City to Walton Deed”); and
WHEREAS, to further facilitate these replattings, Macy’s will be delivering to the City the
Bargain and Sale Deed attached as Exhibit “D” and incorporated herein by reference with which
Macy’s will convey to the City an approximately 18-square-foot portion of Original Lot 2 to
account for a portion of the FAC having been built on Original Lot 2 (“Macy’s to City Deed”);
and
WHEREAS, Walton will also be delivering to the City the Bargain and Sale Deed attached
as Exhibit “E” and incorporated herein by reference with which Walton will convey to the City
airspace above approximately 320 square feet of Original Lot 1, 115 square feet of Original Lot 8
and 34 square feet of Original Tract J to account for the overhangs of the FAC’s roof above these
lots and tract (“Walton to City Deed”); and
WHEREAS, City staff is recommending that the City exchange these properties with
Macy’s and Walton with no payment of money between the parties considering the insignificant
value of the very small slivers of land and airspace being exchanged that are comparable in fair
market value and considering that these exchanges are needed to ensure that the FAC, as built, is
located entirely on one platted lot; and
WHEREAS, Section 23-111(a) of the City Code provides that the City Council is
authorized to sell, convey, exchange or otherwise dispose of real property owned by the City,
provided the City Council finds by ordinance that such sale or disposition is in the best interests
of the City; and
WHEREAS, the City hereby finds that the execution and delivery of the City to Macy’s
Deed and the City to Walton Deed are in the City’s best interests; and
WHEREAS, the City Council also wishes to authorize the City Manager to execute on the
City’s behalf, as the owner of Replatted Lot 20, the new plat approved by the City for the Mall
Subdivision to create Replatted Lot 20.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That City Council hereby approves the City to Macy’s Deed and the City
to Walton Deed and the Mayor is authorized to execute both of them on the City’s behalf; provided,
3.b
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Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
-3-
however, that these two Deeds are only to be delivered to Macy’s and Walton, respectively, if the
Macy’s to City Deed and the Walton to City Deed are delivered first or contemporaneously to the
City. In addition, the Mayor is authorized, in consultation with the City Manager and the City
Attorney, to agree to revisions to any of these four deeds as he deems necessary and appropriate
to protect the City’s interests or to effectuate the purposes of this Ordinance.
Section 3. That the City Manager is hereby authorized to sign on the City’s behalf, as
the owner of Replatted Lot 20, the new plat approved by the City for the Mall Subdivision to create
Replatted Lot 20.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
3.b
Packet Pg. 54
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Lot 20
Lot 2
Lot 1
Lot 20
Air Space
Lot 8
Tract J
Tract J
Part of Lot 2
Macy's West Stores, Inc.
to the City of Fort Collins Part of Lot 20
the City of Fort Collins
to Walton Foothills Holdings VI, L.L.C.
Part of Lot 20
the City of Fort Collins
to Macy's West Stores, Inc.
Part of Lot 1, below elevation 5043.3'
Walton Foothills Holdings VI, L.L.C.
to the City of Fort Collins
Part of Tract J, above elevation 5037.9'
Walton Foothills Holdings VI, L.L.C.
to the City of Fort Collins
Part of Tract J
Walton Foothills Holdings VI, L.L.C.
to the City of Fort Collins
Part of Lot 8, above elevation 5037.9'
Walton Foothills Holdings VI, L.L.C.
to the City of Fort Collins
FOOTHILLS MALL REDEVELOPMENT
SUBDIVISION
Project No:
Reviewed:
Drawn by:
Field Book:
Date:
Walton Foothills Holdings VI, LLC
5750 DTC Parkway, Greenwood Village, CO
Quit Claim Parcel Exhibit
Foothills Mall Redevelopment Subdivision
(970) 484-7477 / info@f-w.com Fort Collins, CO 1 of 1
FORT COLLINS, COLORADO 80525
GROUP
1612 SPECHT POINT ROAD, SUITE 105
0
U.S. SURVEY FEET
SCALE: 1"=30'
15 30 60
Quit Claim Parcel Exhibit
General Note:
This exhibit is for informational purposes
only. Refer to quit claim exhibits and
descriptions for additional information.
EXHIBIT PARCELS
ARE NOT SHOWN
TO SCALE
EXHIBIT A
Packe
15969156
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
Attention: Kathy Golden
SPACE ABOVE THIS LINE FOR RECORDER’S USE
BARGAIN AND SALE DEED
[Statutory Form - C.R.S. § 38-30-115]
[CONVENIENCE DEED – NO DOCUMENTARY FEE REQUIRED]
CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of
Colorado (“Grantor”) with a legal address of ___________________________, for the
consideration of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid,
hereby sells and conveys to MACY’S WEST STORES, INC., an Ohio corporation (“Grantee”),
which has an office at _____________________, all of Grantors’ right, title and interest in and to
the following real property, with all its appurtenances, located in the County of Larimer, State of
Colorado, more particularly described on Exhibit A, attached hereto and incorporated herein by
this reference.
Dated this _____ day of ____________, 2019.
[Signature Page Follows]
EXHIBIT B
3.b
Packet Pg. 56
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
[Signature Page to Bargain and Sale Deed – City of Fort Collins]
15969156
IN WITNESS WHEREOF, Grantor has executed this Bargain and Sale Deed on the date
set forth above.
GRANTOR:
CITY OF FORT COLLINS, COLORADO
a municipal corporation of the State of Colorado
By:
Name: Darin A. Atteberry
Title: City Manager
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument Deed was acknowledged before me this ____ day of ________,
2019, by Darin A. Atteberry, the City Manager of the City of Fort Collins, Colorado, a municipal
corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary
EXHIBIT B
3.b
Packet Pg. 57
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969156
EXHIBIT A
Legal Description
That part of Lot 20, Foothills Mall Redevelopment Subdivision, recorded at the Larimer County, Colorado Clerk and
Recorder's Office on June 4, 2014 at Reception Number 20140028776 and located in the Southwest Quarter of Section
25, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado,
described as follows:
Beginning at the Northerly corner of said Lot 20, witnessed by a mag nail & 1-1/2" aluminum washer stamped PLS
38199 WC 82;
Thence South 45°09'24" East for 48.01 feet on the Northeasterly line of said Lot 20;
Thence South 44°51'09" West for 1.68 feet;
Thence North 45°08'52" West for 48.01 feet to the Northwesterly line of said Lot 20;
Thence North 44°51'07" East for 1.67 feet on said Northwesterly line to the Point of Beginning.
Contains 80 square feet, (0.00184 acres) more or less.
Basis of Bearing: The Northwesterly line of Lot 20, Foothills Mall Redevelopment Subdivision, recorded at the
Larimer County, Colorado Clerk and Recorder's Office on June 4, 2014 at Reception Number 20140028776, bears
South 44°51'07" West, as witnessed on each end by a mag nail & 1-1/2" aluminum washer stamped PLS 38199 WC
82, with all bearings herein relative thereto.
I hereby state that the attached description was prepared by me or under my responsible charge using applicable
standards of practice and is accurate to the best of my knowledge, information and belief. This is not intended to
represent a Land Survey Plat, Improvement Survey Plat or Improvement Location Certificate and is not a guarantee
or warranty, either expressed or implied. It is intended to describe the area illustrated on the accompanying exhibit.
October 17, 2017
Revised January 24, 2018
David J. Berglund, Colorado PLS 38199
For and on behalf of Farnsworth Group, Inc.
1612 Specht Point Road, Suite 105
Fort Collins, CO 80525
Phone: (970) 484-7477
EXHIBIT B
3.b
Packet Pg. 58
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969156
EXHIBIT A (CONT.)
EXHIBIT B
3.b
Packet Pg. 59
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
15969147
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
Attention: Kathy Golden
SPACE ABOVE THIS LINE FOR RECORDER’S USE
BARGAIN AND SALE DEED
[Statutory Form - C.R.S. § 38-30-115]
[CONVENIENCE DEED – NO DOCUMENTARY FEE REQUIRED]
CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of
Colorado (“Grantor”) with a legal address of ___________________________, for the
consideration of Ten Dollars ($10.00) and other good and valuable consideration, in hand paid,
hereby sells and conveys to WALTON FOOTHILLS HOLDINGS VI, L.L.C., a Delaware limited
liability company (“Grantee”), which has an office at _____________________, all of Grantors’
right, title and interest in and to the following real property, with all its appurtenances, located in
the County of Larimer, State of Colorado, more particularly described on Exhibit A, attached
hereto and incorporated herein by this reference.
Dated this _____ day of ____________, 2019.
[Signature Page Follows]
EXHIBIT C
3.b
Packet Pg. 60
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
[Signature Page to Bargain and Sale Deed – City of Fort Collins]
15969147
IN WITNESS WHEREOF, Grantor has executed this Bargain and Sale Deed on the date
set forth above.
GRANTOR:
CITY OF FORT COLLINS, COLORADO
a municipal corporation of the State of Colorado
By:
Name: Darin A. Atteberry
Title: City Manager
STATE OF COLORADO )
) ss.
COUNTY OF ___________ )
The foregoing instrument was acknowledged before me this ____ day of ________, 2019,
by Darin A. Atteberry, the City Manager of the City of Fort Collins, Colorado, a municipal
corporation of the State of Colorado.
Witness my hand and official seal.
My commission expires:
Notary
EXHIBIT C
3.b
Packet Pg. 61
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969147
EXHIBIT A
Legal Description
That part of Lot 20, Foothills Mall Redevelopment Subdivision, recorded at the Larimer County, Colorado Clerk and
Recorder's Office on June 4, 2014 at Reception Number 20140028776 and located in the Southwest Quarter of Section
25, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado,
described as follows:
Commencing at the Northerly corner of Lot 20, said Foothills Mall Redevelopment Subdivision, witnessed by a mag
nail & 1-1/2" aluminum washer stamped PLS 38199 WC 82;
Thence South 45°09'24” East for 48.01 feet on the Northeasterly line of said Lot 20 to the Point of Beginning;
Thence continuing South 45°09'24” East for 14.05 feet on said Northeasterly line;
Thence South 44°51'08" West for 1.68 feet;
Thence North 45°08’52” West for 14.05 feet;
Thence North 44°51'09" East for 1.68 feet to the Point of Beginning.
Contains 24 square feet, (0.00054 acres) more or less.
Basis of Bearing: The Northwesterly line of Lot 20, Foothills Mall Redevelopment Subdivision, recorded at the
Larimer County, Colorado Clerk and Recorder's Office on June 4, 2014 at Reception Number 20140028776, bears
South 44°51'07" West, as witnessed on each end by a mag nail & 1-1/2" aluminum washer stamped PLS 38199 WC
82, with all bearings herein relative thereto.
I hereby state that the attached description was prepared by me or under my responsible charge using applicable
standards of practice and is accurate to the best of my knowledge, information and belief. This is not intended to
represent a Land Survey Plat, Improvement Survey Plat or Improvement Location Certificate and is not a guarantee
or warranty, either expressed or implied. It is intended to describe the area illustrated on the accompanying exhibit.
October 17, 2017
Revised January 24, 2018
David J. Berglund, Colorado PLS 38199
For and on behalf of Farnsworth Group, Inc.
1612 Specht Point Road, Suite 105
Fort Collins, CO 80525
Phone: (970) 484-7477
EXHIBIT C
3.b
Packet Pg. 62
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969147
EXHIBIT A (CONT.)
EXHIBIT C
3.b
Packet Pg. 63
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
15969240
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
Attention: Kathy Golden
SPACE ABOVE THIS LINE FOR RECORDER’S USE
BARGAIN AND SALE DEED
[Statutory Form - C.R.S. § 38-30-115]
[CONVENIENCE DEED – NO DOCUMENTARY FEE REQUIRED]
MACY’S WEST STORES, INC., an Ohio corporation (“Grantor”) with a legal address
of ___________________________, for the consideration of Ten Dollars ($10.00) and other good
and valuable consideration, in hand paid, hereby sells and conveys to the CITY OF FORT
COLLINS, COLORADO, a municipal corporation of the State of Colorado (“Grantee”), which
has an office at _____________________, all of Grantors’ right, title and interest in and to the
following real property, with all its appurtenances, located in the County of Larimer, State of
Colorado, more particularly described on Exhibit A, attached hereto and incorporated herein by
this reference.
Dated this _____ day of ____________, 2019.
[Signature Page Follows]
EXHIBIT D
3.b
Packet Pg. 64
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
[Signature Page to Bargain and Sale Deed – Macy’s West Stores, Inc.]
15969240
IN WITNESS WHEREOF, Grantor has executed this Bargain and Sale Deed on the date
set forth above.
GRANTOR:
MACY’S WEST STORES, INC.,
an Ohio corporation
By:
Name: Carl L. Goertemoeller
Its: Senior Vice President
STATE OF __________________ )
) ss.
COUNTY OF ________________ )
The foregoing instrument was acknowledged before me this ____ day of ________, 2019,
by Carl L. Goertemoeller, as Senior Vice President of Macy’s West Stores, Inc., an Ohio
corporation.
Witness my hand and official seal.
My commission expires:
Notary
EXHIBIT D
3.b
Packet Pg. 65
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969240
EXHIBIT A
Legal Description
That part of Lot 2, Foothills Mall Redevelopment Subdivision, recorded at the Larimer County, Colorado Clerk and
Recorder's Office on June 4, 2014 at Reception Number 20140028776 and located in the Southwest Quarter of Section
25, Township 7 North, Range 69 West of the 6th Principal Meridian, City of Fort Collins, Larimer County, Colorado,
described as follows:
Beginning at the Westerly corner of Lot 20, said Foothills Mall Redevelopment Subdivision, witnessed by a mag nail
& 1-1/2" aluminum washer stamped PLS 38199 WC 23;
Thence North 44°08'54" West for 0.28 feet;
Thence North 44°56'52" East for 91.86 feet;
Thence South 45°08'52" East for 0.12 feet to a line common to the Northwesterly line of said Lot 20;
Thence South 44°51'07" West for 91.86 feet to the Point of Beginning.
Contains 18 square feet, (0.00042 acres) more or less.
Basis of Bearing: The Northwesterly line of Lot 20, Foothills Mall Redevelopment Subdivision, recorded at the
Larimer County, Colorado Clerk and Recorder's Office on June 4, 2014 at Reception Number 20140028776, bears
South 44°51'07" West, as witnessed on each end by a mag nail & 1-1/2" aluminum washer stamped PLS 38199 WC
82, with all bearings herein relative thereto.
I hereby state that the attached description was prepared by me or under my responsible charge using applicable
standards of practice and is accurate to the best of my knowledge, information and belief. This is not intended to
represent a Land Survey Plat, Improvement Survey Plat or Improvement Location Certificate and is not a guarantee
or warranty, either expressed or implied. It is intended to describe the area illustrated on the accompanying exhibit.
October 17, 2017
Revised January 24, 2018
David J. Berglund, Colorado PLS 38199
For and on behalf of Farnsworth Group, Inc.
1612 Specht Point Road, Suite 105
Fort Collins, CO 80525
Phone: (970) 484-7477
EXHIBIT D
3.b
Packet Pg. 66
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969240
EXHIBIT A (CONT.)
EXHIBIT D
3.b
Packet Pg. 67
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
15969135
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
Brownstein Hyatt Farber Schreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
Attention: Kathy Golden
SPACE ABOVE THIS LINE FOR RECORDER’S USE
BARGAIN AND SALE DEED
[Statutory Form - C.R.S. § 38-30-115]
[CONVENIENCE DEED – NO DOCUMENTARY FEE REQUIRED]
WALTON FOOTHILLS HOLDINGS VI, L.L.C., a Delaware limited liability company
(“Grantor”) with a legal address of ___________________________, for the consideration of
Ten Dollars ($10.00) and other good and valuable consideration, in hand paid, hereby sells and
conveys to the CITY OF FORT COLLINS, COLORADO, a municipal corporation of the State of
Colorado (“Grantee”), which has an office at _____________________, all of Grantors’ right,
title and interest in and to the real property, with all its appurtenances, located in the County of
Larimer, State of Colorado, more particularly described on Exhibit A, attached hereto and
incorporated herein by this reference.
Dated this _____ day of ____________, 2019.
[Signature Page Follows]
EXHIBIT E
3.b
Packet Pg. 68
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
[Signature Page to Bargain and Sale Deed – Walton Foothills Holdings VI, L.L.C.]
15969135
IN WITNESS WHEREOF, Grantor has executed this Bargain and Sale Deed on the date
set forth above.
GRANTOR:
WALTON FOOTHILLS HOLDINGS VI, L.L.C.,
a Delaware limited liability company
By: W Foothills JV VI, L.L.C.,
a Delaware limited liability company,
its Sole Member
By: Foothills Alberta Member, LLC,
a Colorado limited liability company,
its Administrative Member
By:
Name: Donald G. Provost
Its: Manager
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
The foregoing instrument was acknowledged before me this ____ day of ________, 2019,
by Donald G. Provost, as Manager of Foothills Alberta Member, LLC, a Colorado limited liability
company, as Administrative Member of W Foothills JV VI, L.L.C., a Delaware limited liability
company, as the Sole Member of Walton Foothills Holdings VI, L.L.C., a Delaware limited
liability company.
Witness my hand and official seal.
My commission expires:
Notary
EXHIBIT E
3.b
Packet Pg. 69
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A
Legal Description
EXHIBIT E
3.b
Packet Pg. 70
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 71
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 72
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 73
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 74
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 75
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 76
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Exhibit A
15969135
EXHIBIT A (CONT.)
EXHIBIT E
3.b
Packet Pg. 77
Attachment: Ordinance No. 137, 2019 (8457 : SR 137 Land Conveyance FAC)
Agenda Item 4
Item # 4 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Theresa Connor, Water Engineering Field Operations Mgr
Lance Smith, Utilities Strategic Finance Director
Shane Boyle, Civil Engineer III
Ingrid Decker, Legal
SUBJECT
First Reading of Ordinance No. 139, 2019, Appropriating Prior Year Reserves for the Purchase of Property on
West Vine Drive.
EXECUTIVE SUMMARY
The purpose of this item is to appropriate prior year reserves in the Storm Drainage Fund to purchase a portion
of the property at 1337 West Vine Drive. This parcel is needed in order to construct the West Vine Outfall,
which is part of the approved West Vine Basin Master Drainage Plan.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
Much of the West Vine Basin, located in western Fort Collins generally along West Vine Drive and Laporte
Avenue, was developed in the County prior to stormwater and floodplain regulations being adopted. For this
reason, there is significant potential for flooding in the basin during a large rainstorm event. The City’s
Stormwater Master Drainage Plan for the West Vine Basin identifies improvements that would help to mitigate
and convey flood flows through the basin to the Poudre River while minimizing the flooding potential to
residents, businesses, and major roadways. The West Vine Outfall project is a vital component of that master
plan and would limit the extents of the mapped floodplain to the proposed outfall channel and regional
detention pond.
A portion of the property at 1337 West Vine Drive lies within the proposed alignment for the West Vine Outfall
project and is currently for sale. (Attachment 1) The purpose of this Ordinance is to appropriate funds for the
purchase of the portion of the property that is needed in order to construct the West Vine Outfall project. If the
City does not purchase the property, it may be sold to a third party and developed, which would hinder the
City’s ability to construct this important Stormwater project. The approach to flood mitigation in the West Vine
Basin would need to be altered to utilize large culverts under Vine Drive and would not allow an opportunity to
create a connective trail and greenway.
Recent projects and property acquisition in the area that are part of the West Vine Outfall include construction
of a portion of the West Vine Outfall from Vine Drive to the Poudre River in 2013-2014 and acquisition of the
future regional detention pond property in 2012.
4
Packet Pg. 78
Agenda Item 4
Item # 4 Page 2
CITY FINANCIAL IMPACTS
This off-cycle request is for $255,000 from Stormwater Reserves. Current balance in Stormwater Reserves is
$3,800,000.
BOARD / COMMISSION RECOMMENDATION
At its September 19, 2019 meeting, the Water Board voted unanimously (8-0) to recommend approval of the
off-cycle budget offer not to exceed $280,000 for the acquisition of a portion of the property at 1337 West Vine
Drive for the West Vine Basin Master Drainage Plan.
ATTACHMENTS
1. Location Map (PDF)
2. Water Board minutes, September 19, 2019 (PDF)
4
Packet Pg. 79
1337 W. Vine
1337 W. Vine Drive—West Vine Basin—Stormwater Acquisition
1.5+/- acre of 1337 W. Vine proposed for purchase Existing Stormwater properties
ATTACHMENT 1
4.a
Packet Pg. 80
Attachment: Location Map (8450 : Stormwater Property Acquisition-Vine Dr)
WATER BOARD
REGULAR MEETING
September 19, 2019, 5:30-7:30 p.m.
222 Laporte Avenue, Colorado River Community Room
09/19/2019 – MINUTES Page 1
▪ Stormwater West Vine Basin Property Purchase
Deputy Director Theresa Connor summarized the staff proposal to appropriate prior
year reserves in the Storm Drainage Fund to purchase a portion of the property at
1337 West Vine Avenue. The parcel is needed to construct the West Vine Outfall,
which is part of the approved West Vine Basin Master Drainage Plan.
Discussion Highlights: Board members commented on and inquired about various
related topics including whether the south portion of land is in the floodplain
(Stormwater Engineering & Land Development Civil Engineer III Shane Boyle
replied it is not; it is a developable piece of land); suggestion to show the floodplain
on the map; plat shown in meeting packet materials is a preliminary image; rate of
$3.55 per square foot per appraisal; buying land means committing to the alignment;
other nearby lots; Stormwater Engineering and Development Review Manager Ken
Sampley summarized issues and options related to the project.
Board Member Tarry moved that Water Board recommend City Council approve
the off-cycle budget offer of approximately $280,000 for the acquisition of a portion
of the property at 1337 West Vine Drive for the West Vine Basin Master Drainage
Plan.
Board Member Steed seconded the motion.
Discussion on the motion: None
Vote on the motion: it passed unanimously, 8-0
ATTACHMENT 2
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Attachment: Water Board minutes, September 19, 2019 (8450 : Stormwater Property Acquisition-Vine Dr)
-1-
ORDINANCE NO. 139, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING PRIOR YEAR RESERVES FOR THE
PURCHASE OF PROPERTY ON WEST VINE DRIVE
WHEREAS, the City’s Stormwater Master Drainage Plan for the West Vine Basin
identifies improvements needed to mitigate and convey flood flows through that basin to the
Poudre River, reducing the flooding potential to residents, businesses and major roadways; and
WHEREAS, the West Vine Outfall Project (the “Project”) is a major component of the
Master Drainage Plan; and
WHEREAS, the City has entered into an agreement to purchase approximately 1.5 acres
of a larger parcel of land located at 1337 West Vine Drive for the Project, contingent on
appropriation by the City Council of sufficient funds to purchase the property by January 29,
2020; and
WHEREAS, this appropriation benefits public health, safety and welfare of the citizens
of Fort Collins and serves the public purpose of helping to protect lives and public and private
property from flood hazards; and
WHEREAS, Article V, Section 9 of the City Charter permits the City Council to
appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be
available from reserves accumulated in prior years, notwithstanding that such reserves were not
previously appropriated; and
WHEREAS, the City Manager has recommended the appropriation described herein and
determined that this appropriation is available and previously unappropriated from the Storm
Drainage Fund and will not cause the total amount appropriated in the Storm Drainage Fund to
exceed the current estimate of actual and anticipated revenues to be received in that fund during
any fiscal year.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That there is hereby appropriated from prior year reserves in the Storm
Drainage Fund the sum of TWO HUNDRED FIFTY-FIVE THOUSAND DOLLARS ($255,000)
for expenditure in the Storm Drainage Fund for the purchase of a portion of the property at 1337
West Vine Drive.
Packet Pg. 82
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Introduced, considered favorably on first reading, and ordered published this 19th day of
November, A.D. 2019, and to be presented for final passage on the 3rd day of December, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 3rd day of December, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Packet Pg. 83
Agenda Item 5
Item # 5 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Sue Beck-Ferkiss, Social Policy and Housing Program Manager
Ingrid Decker, Legal
SUBJECT
First Reading of Ordinance No. 140, 2019, Appropriating Prior Year Reserves in Various City Funds to
Reimburse Capital Expansion and Utility fee Funds and Housing Catalyst for Fees Waived for the Mason
Place Affordable Housing Project.
EXECUTIVE SUMMARY
The purpose of this item is to appropriate funds from the Affordable Housing Capital Fund in the Community
Capital Improvement Program and General Fund reserves to reimburse certain City Departments and Housing
Catalyst for fees that were waived for the Mason Place affordable housing project.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
City Council approved percentage-based Affordable Housing fee waivers for the Mason Place permanent
supportive housing project being developed by Housing Catalyst on First Reading on July 16, 2019 and on
Second Reading on August 20, 2019. This development will offer 60 units targeted to residents making no
more than 30% area median income. The 2019 income limits published by the U. S. Department of Housing
and Urban Development for 30% of the Fort Collins AMI is $18,350 for a household of 1 and $20,950 for a
household of 2. The units at Mason Place will be primarily one-bedroom units with a few two-bedroom units.
Households at this income level are some of the City’s most vulnerable residents. Most of the residents will be
escaping homelessness and have disabilities. This development will be located at 3750 South Mason Street,
the site of the former Midtown Arts Theatre. See attachment 1 for map of location.
In addition to fee waivers, Mason Place received more than $1.1M of HOME and Community Development
Block Grant funding from the City’s Competitive Process and almost $900,000 in direct capital assistance from
the Affordable Housing Capital Fund from the Community Capital Improvement program. Here is a summary of
the City’s investment in this project:
Project Total City
Investment
Total Development
costs
% City
Support
Total Waiver
Amount
Waiver per
qualifying unit
Mason Place (60:60) $2,326,081 $18.7 M 12% $326,081 $5,435
The percentage of units qualifying for the waiver, in this case 100%, was approved by Council before the fee
amounts were finalized. Council approved fee waivers not to exceed $330,000. The amounts are now final,
and the amount of the total fee waiver is $326,081.
5
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Agenda Item 5
Item # 5 Page 2
Details of foregone revenue due to fee waivers:
Fee Amount
Building Permit Fees $31,977
Demo Permit Fees $50
Total foregone revenue $32,027
Details of fees received to be refunded to Housing Catalyst:
Fee Amount
Development Review Fees $5,000
Major Amendment Fees $3,206
Mailing Fees $204
Sign Posting Fees $50
Plan Check Fees $15,397
Total refund to developers $23,857
It is the City’s practice to reimburse the fee accounts for capital expansion and utility fees that are waived. For
Mason Place, a total of $270,197 is needed to reimburse capital expansion and utility fee funds. A breakdown
of that amount follows:
Fee Amount
Fire Capital Expansion $13,695
General Government Capital Expansion $4,271
Parkland: Community $139,560
Parkland Neighborhood $98,820
Police Capital Expansion $7,698
Sewer Development Review Fee $2,580
Stormwater Development Review Fee $993
Water Development Review Fee $2,580
Total reimbursement amount to departments $270,197
Historically, the City has used unrestricted funds to reimburse the appropriate fee funds for affordable housing
fee waivers. Traditionally the reimbursement of capital expansion fees has come from General Fund reserves.
Funds from the Affordable Housing Capital Fund (AHCF) approved by the voters as part of the City Capital
Improvements Program have also been used to partially match the general fund reserves to reimburse waived
fees. This fund will accumulate $4 million over ten years. While most of the current balance in the AHCF is
already committed to this project, $100,000 was withheld for the purpose of matching general fund reserves for
fee waiver reimbursements. The Council Finance Committee recommended that $100,000 be used from the
AHCF for this reimbursement and that the balance be paid from General Fund reserves.
CITY FINANCIAL IMPACTS
The total fee waiver amount is $326,081. Of that amount, $32,027 is foregone revenue. The remaining
$294,054 is comprised of $23,857 to be refunded to Housing Catalyst and $270,197 to be reimbursed to
departments as detailed above. The $294,054 will be funded through an existing $100,000 appropriation in
the AHCF within CCIP, $3,500 will come from an appropriation of reserves in the Transportation Fund and the
remaining $190,554 will come from an appropriation of reserves in the General Fund.
BOARD / COMMISSION RECOMMENDATION
At its June 6, 2019 meeting, the Affordable Housing Board supported granting the original waiver request.
(Attachment 2)
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Agenda Item 5
Item # 5 Page 3
At its June 17, 2019 meeting the Council Finance Committee supported granting the original waiver request.
(Attachment 3)
ATTACHMENTS
1. Location Map (PDF)
2. Affordable Housing Board Minutes, June 6, 2019 (PDF)
3. Council Finance Committee Minutes, June 17, 2019 (PDF)
5
Packet Pg. 86
ATTACHMENT 1
5.a
Packet Pg. 87
Attachment: Location Map (8436 : Mason Place Affordable Housing Fee Waiver)
AFFORDABLE HOUSING BOARD
REGULAR MEETING
6/6/2019 – MINUTES Page 2
B. Consider Fee Waiver Request for Mason Place, Permanent Supportive Housing—Sue,
Social Sustainability Department
Request from Housing Catalyst for the Mason Place waiver. There wasn’t a fee worksheet
included because we have been meeting with Housing Catalyst and Planning,
Development, and Transportation (PDT) to work through the fees. There are 21 waivable
fees; the rest are not waivable. We’ve created a process that gives the developer flexibility
in when they request the waiver. The backfill amount is also moving around. In this case,
the overall fees for the project will be about $650k; the estimate for the waivable portion is
$325k with about 80% of that requiring backfill.
Comments/Q&A:
• Rachel: What is backfill?
o Sue: In Fort Collins, because of the TABOR (Taxpayer Bill of Rights)
amendment, our attorneys are concerned about absorbing funds without
reimbursement, especially of capital expansion fees. We tell developers they
don’t have to pay, and we typically pull from general fund reserves to pay those
fees.
• Diane: What is the total cost of the development?
o Sue: $18.7 million
• Sue: I would like to ask the board if you’d like to make a recommendation about this
request.
Diane made a motion to support the fee waiver request for Mason Place.
Catherine seconded. Approved 5-0-1
ATTACHMENT 2
5.b
Packet Pg. 88
Attachment: Affordable Housing Board Minutes, June 6, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
Finance Administration
215 N. Mason
2nd Floor
PO Box 580
Fort Collins, CO 80522
970.221.6788
970.221.6782 - fax
fcgov.com
Finance Committee Meeting Minutes
06/17/19
10 am - noon
CIC Room - City Hall
Council Attendees: Mayor Wade Troxell, Ross Cunniff, Ken Summers
Staff: Darin Atteberry, Kelly DiMartino, Mike Beckstead, Travis Storin, John Voss, Jackie Thiel,
Kevin Gertig, Lance Smith, Don Klingler, Noelle Currell, Sue Beck-Ferkiss, Kristin
Fritz,John Duval, Tyler Marr, Jo Cech, Katie Ricketts, Zach Mozer, Carolyn Koontz, Bob
Adams, Marc Rademacher
Others: Kevin Jones, Chamber of Commerce
______________________________________________________________________________
Meeting called to order at 10:09 am
Approval of Minutes from the May 20, 2019 Council Finance Committee Meeting. Ken Summers moved for approval
of the minutes as presented. Mayor Troxell seconded the motion. Minutes were approved unanimously.
A. Mason Place Affordable Housing Fee Waivers
Noelle Currell, Manager, FP&A
Sue Beck-Ferkiss, Social Policy and Housing Programs Manager
SUBJECT FOR DISCUSSION
Affordable Housing Fee Waiver Request for Mason Place, a permanent supportive housing community.
EXECUTIVE SUMMARY
Housing Catalyst (HC), formerly known as the Fort Collins Housing Authority, has requested that certain
development and capital improvement expansion fees be waived for all 60 qualifying units at Mason Place. In
March 2013, City Council limited the types of projects for which fee waivers may be requested and made these
waivers discretionary. Eligible projects are those constructed for homeless or disabled persons, or for
households whose income falls at or below 30% of the area median income of all City residents. HC is
requesting fee waivers in the approximate amount of $325,000 for the 60 qualifying units at Mason Place.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
1. Does the Council Finance Committee (CFC) support granting the fee waiver request?
2. If CFC desires the Capital Expansion Fees to be backfilled, should this funding come from General Fund
Reserves only, or from both General Fund Reserves and the Affordable Housing Capital Fund?
ATTACHMENT 3
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Packet Pg. 89
Attachment: Council Finance Committee Minutes, June 17, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
2
BACKGROUND/DISCUSSION
HC is seeking the waiver of certain development and capital improvement expansion fees for Mason Place, an
affordable housing project as allowed by City Code and the Land Use Code. Mason Place is currently under
development and will deliver 60 income restricted units, all of which will be targeted to households making no
more than 30% of the area median income (AMI). The request from HC is attached as attachment 1. While HC
will be the ultimate owner of the building, it is being developed by Housing Catalyst LLC and any fee waiver
granted would be to Mason Place LLLP, which is the ownership entity for the tax credit partnership.
Fee Waiver history:
For many years, the City provided affordable housing fee waivers for some building permit fees, development
review fees and some capital expansion fees as an incentive to encourage the development of affordable
housing.
• In March 2013, City Council amended its policies on fee waivers for affordable housing to allow for more
discretion in determining the kinds of housing projects for which City fees should be waived.
• This was after a large waiver was granted.
• By adopting Ordinance No. 37, 2013, City Council limited eligibility of fee waivers to the local housing
authority and limited what types of units would qualify for fee waivers. Only projects that are constructed
for homeless or disabled persons, or for households whose income is no greater than 30% of the area
median income of all City residents qualify.
• Furthermore, waivers were made discretionary by City Council upon a determination that the proposed
waiver will not jeopardize the financial interests of the City or the timely construction of the capital
improvements to be funded by the fees for which a waiver is sought.
• This policy was changed by City Council in 2017 so that any developer providing qualifying units is eligible to
seek discretionary fee waivers.
• Staff has been working on improving the method of processing requests for fee waivers. In addition to
working with the applicant to confirm fee amounts, the process allows for the percentage of eligible units to
be approved even before the fee amounts are finalized. However, if the waiver request is processed when
fee amounts are final, the waiver approval can be for both the percentage of qualifying units and the fee
amount. The process allows the applicant to decide on the timing of the fee waiver request. This only makes
a difference in how the City handles the reimbursement of capital expansion fees and does not influence the
project being constructed.
Current Request:
Mason Place is a 60-unit affordable housing community being constructed at 3750 South Mason Street in Fort
Collins. See attachment 2 for map of location. The developer is HC. The total development of 60 units, will be
dedicated to households making no more than 30% AMI. This will be a permanent supportive housing
development where people can live for an unlimited term and be provided on site supportive services to help
tenants achieve and sustain housing stability. This is a best practice for housing persons experiencing chronic
homelessness, most of whom have disabilities too.
HC is seeking the waiver of certain fees for those 60 qualifying units. The total fees for this $18.7 million
development project are estimated to be in excess of $656,000. The request is for 100% of eligible fees, about
$325,000 (currently calculated at $324,714), to be waived. Of that amount, about $264,000 (currently calculated
at $263,244) are for capital expansion fees which the City has traditionally reimbursed. This project is adaptive
reuse and not new construction, so the fees are offset with fees previously collected for this location and are
therefore not as high as a new construction project would be. Because the plans for this development could still
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Attachment: Council Finance Committee Minutes, June 17, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
3
change slightly, HC has requested that Council approve the percentage to be waived at this time. The fee
amounts are not expected to change significantly, but by approving the percentage, more time is provided to
finalize the fee amounts.
The 2019 income limits published by the U. S. Department of Housing and Urban Development for 30% of the
Fort Collins AMI is $18,350 for a household of 1 and $20,950 for a household of 2. The units at Mason Place will
be primarily one-bedroom units with a few two-bedroom units. Households at this income level are some of the
City’s most vulnerable residents. Most of the residents will be escaping homelessness and have disabilities. All
units at Mason Place are eligible for fee waivers as established by City Code, and the Land Use Code.
The City has established affordable housing production goals in the 2015-2019 Affordable Housing Strategic Plan
(Plan). The need for financial support for these goals to be met is also stated in the Plan. The annual production
goal for the current 5-year plan is 188 units. This project will deliver 60 units which is 32% of the City’s current
annual goal. Since the City does not develop housing, development partners are relied upon to bring this
necessary housing product to the community. This project will increase the inventory of affordable rental units
and is targeting special needs populations - which are two of the strategies listed in the Plan.
It is recommended that any capital expansion fees waived be subject to backfill by the City to reimburse city
departments for fees if this waiver is granted, as has been the City’s custom to date. Traditionally backfill of
capital expansion fees occurred and has come from General Fund reserves. Alternatively, funds for this request
could come from the Affordable Housing Capital Fund that was approved by the voters as part of the City Capital
Improvements Program. This fund will accumulate $4 million over ten years. While most of the current balance
in this fund is already committed to this project, $100,00 was withheld for the purpose of matching general fund
reserves for fee waiver backfill. This project is the first to seek fee waivers this year.
Board and staff support:
• The Affordable Housing Board supports this waiver request. The City’s waiver policy has greatly limited the
types of projects that qualify for waivers. This policy recognizes that households earning no more than 30%
AMI cannot afford market rate housing in our City at this time. The average rent is currently over $1,200 a
month. A one-person household at 30% AMI would need to pay 78% of their income to pay the average
rent. Ideally, renters would never pay more than 30% of their income on housing. Developers need public
subsidy to produce housing that this demographic can afford.
• Staff also supports granting this waiver request.
Next Steps
• This request is ready to be presented to Council after this committee’s review.
DISCUSSION / NEXT STEPS:
$686k is the total
Total waivable fees $325k - we may ask for $330k to make sure we have some flexibility
Through 2018 we appropriated $700K through the CCIP dedicated support
$500K of that is still unspent and that amount will be dedicated to this project.
In 2019 we appropriated $400K from the CCIP will go to this project as well
All total - just over $1M of support from the City for this project
Fee waivers as investment
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Attachment: Council Finance Committee Minutes, June 17, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
4
Direct subsidy – retain no more than 25% of any fund for backfill
We are requesting that you approve the waiver of 100% of waivable fees
The estimate today is $325K = Could be a bit of movement $330K is the ask - Affordable Housing Board has
approved this request.
Ken Summers; review the support categories
Total of $1M City support
Fee Waivers = $325k
$900K coming from affordable housing capital fund
Total is $1.2M between two awards
Competitive process – annual competition for CDBG home funds
Darin Atteberry; the most important information is the cumulative ask - not just the one time ask
$1.3 - 1 .5M is the actual total - Council doesn’t remember all of these different pieces from 2017
Ken Summers; CDBG allocations we approved - this request is for fee waiver
Outside of what is available through Housing Catalyst - How does that work? Being ask for fee waiver
Sue Beck-Ferkiss; in 2018 Affordable Housing Funds were committee to Housing Catalyst
CDBG funds were from 2018 as well and have been approved by Council
A lot of projects quality for the competitive process and could quality for the capital
Only projects that target 30% AMI or less are eligible for waivers - lowest wage earner units which don’t spin off
rent income so more $$ are required – more subsidy on the front end. Providing permanent support housing
Kristin Fritz; Housing Catalyst
$876k Committee
$1.1M competitive
Total commitment is almost $2M before before the fee waivers
Mayor Troxell; the project is $18.7M - How is this going to be financed?
Kristin Fritz; this is a competitive tax credit project = awarded tax credits on its first round
City funding commitment was prior to the tax credit commitment
Whether or not we received federal low income tax credit
We received state money from Colorado Division of Housing
Lender – all of the financing is fully awarded – underwriting due diligence is in progress and we are set to close
On September 2nd - working its way through - fully funded – completely penciled out
It is typical with the City funding process – that after an award is made we still need to go obtain the remaining
pieces and then go through a contracting process
Mayor Troxell; Will the $18.7M will hold?
Kristin Fritz; Yes, that is the number - we are committed to that number and under contract
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Attachment: Council Finance Committee Minutes, June 17, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
5
Some of that background info -overall investment - Hard complete wrap around services
0-30% AMI - tough crowd
Ross Cunniff; I sit on the housing Catalyst Board - I do support taking the waivable fees out of the General Fund
other than out of the Capital Expansion Fees
Mike Beckstead; for clarification - shared or 100% out of the General Fund
Ross Cunniff; 100% out of the General Fund
Sue Beck-Ferkiss; would it all come from the General Fund reserve or should we use the money ($100K) we set
aside?
Ken Summers; use the money we set aside first then the remainder from the General Fund
Mike Beckstead; I put the fees into 3 categories
1) Utility TIFS not being waived
2) Development Fees - waiver is requested – not backfilled
3) Capital Expansion Fees - $264K which would get backfilled
Ross Cunniff; trying to make the Development Review Fees like a dedicated fund – so that is the only thing they
are used for is development review – I would prefer it be portrayed as coming from General Fund reserves
ACTION ITEM:
In the future, I would like to find a structured way we can call these pre application proposed rebates - other
than a waiver - with Housing Catalyst that could cause some financial stress
Source of funding available for projects that pre quality – pre development -Contingent on it actually being built
Being deliberate about setting aside money for these affordable housing purposes and not making it look like we
are playing some kind of shell game.
Council Finance Committee (Mayor Troxell, Ken Summers and Ross Cunniff) unamiously recommended that this
go forward to the full Council
ACTION ITEM: Darin Atteberry; 10% City participation - to Mike – please work with Jackie and Sue - it would be
good to see where those trends are; trending up? trending down? What have we done in prior projects? A
macro perspective. I agree with what Wade and Ross both said, this is a great project that will help with some
serious needs. The complete stack is always important for Council
Mike Beckstead; We will make sure both the complete stack and trends are included in the Council materials.
Ken Summers; what is rate contribution for residents? Do they pay on a sliding scale?
Sue Beck-Ferkiss; housing choice vouchers that are connected to these units - residents pay 30% of their income
and the government pays the rest up to the fair market standard.
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Attachment: Council Finance Committee Minutes, June 17, 2019 (8436 : Mason Place Affordable Housing Fee Waiver)
-1-
ORDINANCE NO. 140, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
APPROPRIATING PRIOR YEAR RESERVES IN VARIOUS CITY
FUNDS TO REIMBURSE CAPITAL EXPANSION AND UTILITY
FEE FUNDS AND HOUSING CATALYST FOR FEES WAIVED FOR
THE MASON PLACE AFFORDABLE HOUSING PROJECT
WHEREAS, the Fort Collins Housing Authority, doing business as Housing Catalyst, is
currently developing the Mason Place permanent supportive housing project (the “Project”) in
Fort Collins; and
WHEREAS, on August 20, 2019, the City Council adopted Ordinance No. 096, 2019,
approving the waiver of eligible development review fees, building fees, and capital
improvement expansion fees, in an amount not to exceed $330,000, for the Project; and
WHEREAS, Ordinance No. 096, 2019 also directed the City Manager, once the Project
fees were finalized, to bring forward an ordinance appropriating funds to reimburse the
appropriate funds for the fees waived; and
WHEREAS, historically the City has reimbursed utility funds for utility development
review fees waived, and reimbursed funds for waived capital improvement expansion fees; and
WHEREAS, the final amount of the fees has been calculated and the total amount waived
is $326,081, with $270,197 of that amount being utility fees and capital expansion fees and
$23,857 being fees already paid to be refunded to Housing Catalyst; and
WHEREAS, the City Council desires to appropriate funds to reimburse various Capital
Expansion and Utility Fee funds for waived fees in the following amounts:
Fire Capital Expansion $ 13,695
General Government Capital Expansion 4,271
Parkland: Community 139,560
Parkland: Neighborhood 98,820
Police Capital Expansion 7,698
Sewer Development Review Fee 2,580
Stormwater Development Review Fee 993
Water Development Review Fee 2,580
TOTAL $270,197; and
WHEREAS, the City Council further desires to appropriate funds to refund to Housing
Catalyst the following fees already paid by Housing Catalyst, in the following amounts:
Development Review Fees $ 5,000
Major Amendment Fees 3,206
Mailing Fees 204
Packet Pg. 94
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Sign Posting Fees 50
Plan Check Fees 15,397
TOTAL $23,857; and
WHEREAS, building fees in the amount of $32,027 would not be reimbursed; and
WHEREAS, Article V, Section 9, of the City Charter permits the City Council to
appropriate by ordinance at any time during the fiscal year such funds for expenditure as may be
available from reserves accumulated in prior years, notwithstanding that such reserves were not
previously appropriated; and
WHEREAS, this appropriation benefits public health, safety, and the welfare of the
citizens of Fort Collins; and
WHEREAS, the City Manager has recommended the appropriation described herein and
determined that these appropriations are available and previously unappropriated from the
Community Capital Improvement Program Fund, the General Fund and the Transportation Fund,
as applicable, and will not cause the total amount appropriated in the Community Capital
Improvement Fund Fund, the General Fund or the Transportation Fund, as applicable, to exceed
the current estimate of actual and anticipated revenues to be received in these funds during the
fiscal year.
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That there is hereby appropriated for expenditure from reserves in the
Affordable Housing Capital Fund within the Community Capital Improvement Program Fund
the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to cover a portion of the
waived fees for the Mason Place Affordable Housing Project.
Section 3. That there is hereby appropriated for expenditure from reserves in the
General Fund the sum of ONE HUNDRED NINETY THOUSAND FIVE HUNDRED FIFTY-
FOUR DOLLARS ($190,554) to cover a portion of the waived fees for the Mason Place
Affordable Housing Project.
Section 4. That there is hereby appropriated for expenditure from reserves in the
Transportation Fund the sum of THREE THOUSAND FIVE HUNDRED DOLLARS ($3,500)
to cover a portion of the waived fees for the Mason Place Affordable Housing Project.
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-3-
Introduced, considered favorably on first reading, and ordered published this 19th day of
November, A.D. 2019, and to be presented for final passage on the 3rd day of December, A.D.
2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Passed and adopted on final reading on the 3rd day of December, A.D. 2019.
__________________________________
Mayor
ATTEST:
_______________________________
City Clerk
Packet Pg. 96
Agenda Item 6
Item # 6 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Kaley Zeisel, Transfort Capital Planning/Grant Compliance Mgr
Drew Brooks, Director of Transit
Chris Van Hall, Legal
SUBJECT
Resolution 2019-106 Authorizing the Execution of an Intergovernmental Agreement Between the City of Fort
Collins, the Town of Windsor and the City of Greeley for the Operation of the Poudre Express.
EXECUTIVE SUMMARY
The purpose of this item is to authorize the execution of an Intergovernmental Agreement (IGA) with Greeley
Evans Transit (GET) for the operation of the Poudre Express, the new regional fixed route bus service
between Greeley and Fort Collins. GET will operate the Poudre Express, with runs between Greeley and Fort
Collins. This will be funded through cooperation with GET and partner agencies, including the Town of Windsor
and City of Fort Collins.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
Travel between Northern Colorado communities has been growing and it is estimated that more than 14,000
people commute daily between Fort Collins, Windsor and Greeley. The high level of in-commuting has a
significant impact on congestion and quality of life for residents and travelers. Regional services are a key
mobility option that help address the negative impacts of in-commuting. Following the successes of FLEX, a
regional service operated by Transfort that connects communities along Highway 287, and Bustang, a
Colorado Department of Transportation (CDOT) service between Fort Collins and Denver, GET will begin
operating a new express route between Greeley and Fort Collins.
The service is anticipated to operate seven trips per day between Greeley and Fort Collins, with stops at
Colorado State University (CSU), University of Northern Colorado (UNC) and Windsor. The alignment in Fort
Collins is proposed to include I-25 from Highway 392 to Highway 14 with a stop at the Harmony Transfer
Center (HTC), and along Highway 14/Mulberry to the CSU Transit Center. Passengers would be able to make
transfers to other routes at the CSU Transit Center and MAX and make transfers to Bustang and Transfort’s
Route 16 at the HTC.
Based on a recent survey, almost 3,000 faculty and students commute between Fort Collins and Greeley, and
many others in nearby communities indicated a desire for regional transit service. The result of such a service
would be a reduction of intra-regional commuting by single-occupant vehicles, air quality improvements and
reduced greenhouse gas emissions, less congestion and higher quality of life for commuters and residents.
The proposed funding partners include CDOT; the cities of Greeley, Evans, Windsor and Fort Collins; and
CSU and UNC.
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Agenda Item 6
Item # 6 Page 2
CITY FINANCIAL IMPACTS
The adoption of this Resolution will have no financial impact. The initial partner contribution of $100,000 was
approved and budgeted though the 2019/2020 BFO process (Offer 45.13).
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RESOLUTION 2019-106
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AUTHORIZING THE EXECUTION OF AN INTERGOVERNMENTAL
AGREEMENT BETWEEN THE CITY OF FORT COLLINS, THE TOWN OF WINDSOR
AND THE CITY OF GREELEY FOR THE OPERATION OF THE POUDRE EXPRESS
WHEREAS, based on a recent survey, almost 3,000 faculty and students at Colorado
State University (“CSU”) commute between Fort Collins and Greeley and there is additional
community desire for regional transit service; and
WHEREAS, the City of Fort Collins, Town of Windsor (“Windsor”) and City of Greeley
(“Greeley”) are cooperating to offer a Poudre Express bus service that will operate seven trips
per day between Greeley and Fort Collins, with stops at CSU, University of North Colorado
(“UNC”) and Windsor (the “Poudre Express”); and
WHEREAS, the Poudre Express alignment in Fort Collins is proposed to include I-25
from Highway 392 to Highway 14 with a stop at the Harmony Transfer Center and along
Highway 14/Mulberry to the CSU Transit Center; and
WHEREAS, the Poudre Express will allow passengers to transfer to other routes at the
CSU Transit Center and MAX, as well as make transfers to Bustang and Transfort’s Route 16 at
the Harmony Transfer Center; and
WHEREAS, Fort Collins’ funding partners for the Poudre Express include the Colorado
Department of Transportation, Greeley, the City of Evans, Windsor, as well as CSU and UNC;
and
WHEREAS, Fort Collins’ contribution of $100,000 was approved and budgeted for
through the 2019/2020 Budgeting for Outcomes process; and
WHEREAS, CSU will provide its contribution for the Poudre Express to Fort Collins
through an existing intergovernmental agreement and Fort Collins will remit CSU’s contribution
to Greeley on CSU’s behalf; and
WHEREAS, the other funding partners will provide their contribution for the Poudre
Express directly to Greeley; and
WHEREAS, Windsor and Greeley have proposed an Intergovernmental Agreement with
Fort Collins to outline the contributions and obligations of each party regarding the Poudre
Express (the “IGA); and
WHEREAS, Section 29-1-203 of the Colorado Revised Statutes provides that
governments may cooperate or contract with one another to provide certain services or facilities
when such cooperation or contracts are authorized by each party thereto with the approval of its
legislative body or other authority having the power to so approve; and
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WHEREAS, Article II, Section 16 of the City Charter empowers the City Council, by
ordinance or resolution, to enter into contracts with governmental bodies to furnish governmental
services and make charges for such services, or enter into cooperative or joint activities with
other governmental bodies; and
WHEREAS, the City Council has determined that it is in the best interests of the City that
the City enter into the proposed IGA and participate in the Poudre Express because it is expected
to reduce intra-regional commuting by single-occupant vehicles, improve air quality and reduce
greenhouse air emissions, as well as contribute to less congestion and higher quality of life for
commuters and residents.
NOW, THEREFORE, BE IT RESLOVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That the Mayor is hereby authorized to enter into the IGA, in substantially
the form attached hereto as Exhibit “A,” together with such additional terms and conditions as
the City Manager, in consultation with the City Attorney, determines to be necessary and
appropriate to protect the interests of the City or to effectuate the purposes of this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
19th day of November, A.D. 2019.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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EXHIBIT A
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
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Attachment: Exhibit A (8466 : Poudre Express IGA RESO)
Agenda Item 7
Item # 7 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Travis Storin, Accounting Director
Josh Birks, Economic Health Director
John Duval, Legal
SUBJECT
Resolution 2019-107 Concerning the Fort Collins Urban Renewal Authority and Its Tax Increment Revenue
Refunding Bonds (Prospect South), Series 2019; Declaring the City Council's Present Intent to Appropriate
Funds to Replenish the Reserve Fund Securing Such Bonds, If Necessary; and Authorizing a Cooperation
Agreement and other Actions Taken in Connection Therewith.
EXECUTIVE SUMMARY
The purpose of this item is for the City Council to consider a Replenishment Resolution, which both provides a
“Moral Obligation Pledge” to the Fort Collins Urban Renewal Authority (URA) and approves a Cooperation
Agreement between the City and the URA in connection with the revenue bond issuance considered by the
URA Board at its November 7, 2019 meeting.
In 2013, the City loaned the URA $5 million to reimburse a developer for eligible expenses as part of the
Summit development in the Prospect South Tax Increment Financing District (Prospect South TIF District). In
2014, the City loaned the URA $274,000 for eligible expenses related to the Prospect Station development in
the Prospect South TIF District. The City has requested the URA to consider refinancing these loans to free up
the $5 million for investing in other community priorities. The URA may also benefit from refinancing by being
able to issue bonds with lower interest rates than the existing loan. As part of this refinance, the URA is
seeking a moral obligation from the City for this bond issuance. The moral obligation would result in improved
bond ratings and reduced debt service costs to the URA.
STAFF RECOMMENDATION
Staff recommends adoption of the Resolution.
BACKGROUND / DISCUSSION
The City and the URA have entered into two loan agreements for development projects in the Prospect South
TIF District. What follows is a summary of each loan agreement.
The Summit
On September 6, 2011, City Council established the Prospect South TIF District within the Midtown Urban
Renewal Plan Area. After establishment of the Prospect South TIF District, Capstone Development
Corporation sought tax increment financing assistance for The Summit, a 220-unit student housing
development. On September 13, 2011, the URA Board approved a financial agreement where the URA would
reimburse $5 million of eligible expenses to Capstone. Per the agreement, the $5 million reimbursement was
due upon completion of the project. At the time, staff estimated The Summit would generate $8 million of tax
increment over the life of the project.
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When Capstone completed The Summit in 2013 and received a Certificate of Occupancy, Capstone requested
reimbursement. The Authority was unable to reimburse Capstone for two reasons:
1. The original estimate of tax increment generation for the Summit was inaccurate. Staff’s updated tax
increment generation estimate in 2013 showed the Summit should generate $7 million, not $8 million as
predicted in 2011.
2. Interest rates rose from 4% to 4.96%.
As such, the City and the URA negotiated a loan agreement at that time to reimburse Capstone. The City
agreed to loan the URA $5 million with a 2.68% interest rate. This interest rate was based on the known
revenue stream of the Prospect South TIF District at the time. This left a $1.78 million interest rate gap. To fill
that gap, the URA agreed to pledge 50% of future unencumbered revenue from the Prospect South TIF District
to the City. Both City Council and the URA Board approved this loan agreement on November 5, 2013.
Prospect Station
In October 2013, the URA executed a Redevelopment Agreement with private developer Prospect Station LLC
(Prospect Station). The Redevelopment Agreement obligated the URA to reimburse Prospect Station up to
$494,000 for eligible expenses. The Agreement required 50% of the reimbursement obligation ($274,000) to
be paid in a single payment upon Prospect Station’s completion of its project with the remaining 50% paid by
the URA over a 21-year period. Knowing the URA would not have sufficient funds to make a single payment
upon Prospect Station’s completion of its project, the City approved Resolution 2013-079 declaring City
Council’s intent to provide a loan to the URA for half of the URA’s reimbursement obligation to Prospect
Station.
Prospect Station received a Certificate of Occupancy in September 2014 and subsequently requested
reimbursement. In response, the City and the URA entered into a loan agreement for $247,000 to fulfill the
URA’s Redevelopment Agreement with Prospect Station. The loan has a 23-year term and 4.5% interest rate.
The URA Board approved the loan agreement on November 18, 2014 with City Council approval following on
December 16, 2014.
Refinancing outstanding debt
City staff approached URA staff in the summer of 2019 with the idea of refinancing the Prospect South loans.
Refinancing them would allow the City to allocate the $5 million to other priorities. A refinance could also allow
the URA to get a lower interest rate than the effective interest rate of 4.96% on the Prospect South loans.
The URA is seeking a moral obligation from the City to receive a more favorable bond rating and interest rate.
This moral obligation expresses the City’s intent to meet any debt service obligations under the bond issuance
in the event the URA defaults. However, since this is only a moral obligation, the City will not be legally
obligated to make any debt service payments in the event of a default by the URA. In addition, any such
payments by the City will be subject to an appropriation by the City Council, which the Council may elect in is
sole discretion to do or not do. A moral obligation would likely result in a rating increase from BBB+ without the
pledge to A+ or higher with the pledge. The savings between these two ratings is approximately $165,000 over
the life of the bonds. The moral obligation will also make it easier for investors to trade the bonds in the
secondary market, reducing the interest cost upon issuance by the URA.
In summary, this refinance will allow the City to allocate $5 million to other community priorities during the
upcoming Budgeting for Outcomes process while potentially saving the URA $794,000 - $986,000 over the life
of the loan. This loan refinance would also honor the strong partnership between the City and the URA.
CITY FINANCIAL IMPACTS
To assess the viability of a refinance, the City and the URA contracted with their own respective bond and
finance counsels. The URA has contracted with Ehlers for their finance counsel and GreenbergTraurig for their
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bond counsel. Based on the current tax increment projections, the URA anticipates receiving between a BBB+
and AA- rating for their bond issuance. The following terms are expected for this bond issuance:
Amount Borrowed Outstanding balance and cost of issuance
(Approx. $5 million)
Term 18 years
Interest Rate 2.587% - 2.929%
Coverage Ratio 1.94 - 2.01
Total Cost $6,150,782 - $6,343,395
Based on these terms, the URA would have savings between $794,000 and $986,000 over the life of the
bonds. Conversely, the City would receive payment in full of the outstanding $5 million loan upon closing of the
bonds, rather than being repaid over the remaining 18-year life. This amount would be restored to fund
balance and become available to use for other community priorities.
BOARD / COMMISSION RECOMMENDATION
Staff presented this item to the URA Finance Committee on October 14, 2019, the Council Finance Committee
on October 21, 2019, and the URA Board on October 24, 2019, and November 7, 2019. Each Committee and
the URA Board recommended proceeding with the loan refinance and associated City moral obligation pledge.
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RESOLUTION 2019-107
OF THE COUNCIL OF THE CITY OF FORT COLLINS
CONCERNING THE FORT COLLINS URBAN RENEWAL AUTHORITY AND
ITS TAX INCREMENT REVENUE REFUNDING BONDS (PROSPECT SOUTH),
SERIES 2019; DECLARING THE CITY COUNCIL’S PRESENT INTENT TO
APPROPRIATE FUNDS TO REPLENISH THE RESERVE FUND SECURING
SUCH BONDS, IF NECESSARY; AND AUTHORIZING A COOPERATION
AGREEMENT AND OTHER ACTIONS TAKEN IN CONNECTION THEREWITH
WHEREAS, the City Council (the “City Council”) of the City of Fort Collins, Colorado
(the “City”) has heretofore created the Fort Collins Urban Renewal Authority (“Authority”) as an
urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of Title 31, Article 25, as
amended (the “Act”); and
WHEREAS, the City Council, by Resolution 2011-081 approved and adopted on
September 6, 2011, has authorized and approved the “Midtown Urban Renewal Plan” as an
urban renewal plan under the Act (the “Original Plan”) for the area described therein (the
“Original Plan Area”), and the urban renewal projects described therein; and
WHEREAS, on February 28, 2013, the City Council adopted Resolution 2013-014
which, among other things, ratified and reaffirmed the Original Plan, including the adoption of
the Prospect South tax increment financing district; and
WHEREAS, on May 7, 2013, the City Council adopted Resolution 2013-043 approving
modifications to the Original Plan (the “First Amended Plan”); and
WHEREAS, on December 1, 2015, the City Council adopted Resolution 2015-107
approving modifications to the First Amended Plan (the “Second Amended Plan”); and
WHEREAS, one of the modifications included in the Second Amended Plan is the
removal of approximately 167.8 acres of land from the Original Plan Area thereby resulting in a
new plan area (the “New Plan Area”); and
WHEREAS, Resolution 2015-107 provides that the Second Amended Plan is intended to
supersede and replace in all respects the Original Plan and the First Amended Plan except that
the previous Council findings and determinations in Resolutions 2011-081, 2013-014 and 2013-
043 shall remain in full force and effect as applied to the New Plan Area except to the extent
expressly superseded or updated in Resolution 2015-107, but the tax increment financing
provisions in the Second Amended Plan shall continue to be in effect no later than twenty-five
years after the adoption of the Original Plan; and
WHEREAS, the Second Amended Plan authorizes and describes an urban renewal
project consisting of various undertakings and activities to be undertaken by the Authority to
facilitate the elimination and prevention of blighted within the New Plan Area and to promote
the redevelopment, conservation and rehabilitation of the New Plan Area (collectively, the
“Project”); and
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WHEREAS, in order to undertake certain urban renewal projects within the New Plan
Area, the Authority has previously borrowed money from the City and entered into certain prior
loan agreements with the City and executed certain prior promissory notes (collectively, the
“Prior City Loans”) in connection therewith; and
WHEREAS, pursuant to an Indenture of Trust (the “Indenture”) between the Authority
and U.S. Bank National Association, as trustee (the “Trustee”), the Authority is issuing its Tax
Increment Revenue Refunding Bonds (Prospect South), Series 2019 (the “Series 2019 Bonds”)
for the purpose of repaying the Prior City Loans made by the City to the Authority; and
WHEREAS, a reserve fund (the “Reserve Fund”) will be created under the Indenture to
secure the payment of the Series 2019 Bonds and such Reserve Fund is required to be maintained
in an amount equal to the Reserve Fund Requirement (as defined in the Indenture); and
WHEREAS, the Indenture provides that the Reserve Fund may either be cash funded or
that a reserve fund insurance policy (a “Reserve Fund Policy”) may be deposited in the Reserve
Fund; and
WHEREAS, the City Council wishes to make a non-binding statement of its present
intent with respect to the appropriation of funds for the replenishment of the Reserve Fund or the
repayment of any draws made under any Reserve Fund Policy, if necessary, and to authorize and
direct the City Manager to take certain actions for the purpose of causing requests for any such
appropriation to be presented to the City Council for consideration; and
WHEREAS, in connection with the issuance of the Series 2019 Bonds, it is necessary and
in the best interests of the City to enter into a Cooperation Agreement (the “Cooperation
Agreement”) between the City and the Authority; and
WHEREAS, there is attached hereto as Exhibit “A” the proposed form of the
Cooperation Agreement; and
WHEREAS, the City and the Authority have previously entered into that certain
“Intergovernmental Agreement Between the City of Fort Collins, Colorado and the Fort Collins
Urban Renewal Authority” dated August 16, 2006, as amended by the parties in that certain
“First Addendum to the Intergovernmental Agreement Between the City of Fort Collins,
Colorado and the Fort Collins Urban Renewal Authority Regarding Operating Staff and
Resources” approved by the City Council and the Authority’s Board by resolution on July 5,
2011 (jointly, the “IGA”); and
WHEREAS, the IGA sets forth the various services the City will provide to the Authority
and addresses in Section 10 of the IGA that the Authority may provide its own public liability
insurance and other insurance or the parties may agree that the Authority will be covered under
the City’s insurance coverages and the Authority will reimburse the City for the additional cost
of that coverage; and
WHEREAS, the City and the Authority wish, through the Cooperation Agreement, to
amend Section 10 of the IGA to clarify and expressly provide that until April 1, 2020, the
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Authority and its officers and employees are included under and covered by the City’s purchased
excess-insurance coverages and coverage under the City’s self-insurance program and self-
insurance fund as established, provided and described in Division 6 of Article VII in Chapter 2
of the City Code and in Division 3 of Article III in Chapter 8 of the City Code; and
WHEREAS, this amendment to Section 10 of the IGA is included in Section 5 of the
Cooperation Agreement; and
WHEREAS, capitalized terms used herein and not otherwise defined shall have the
meanings given to them in the Indenture.
NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
FORT COLLINS, COLORADO:
Section 1. Finding of Best Interests and Public Purpose. The City Council hereby
finds and determines, pursuant to the Constitution, the laws of the State and the City’s Charter,
and in accordance with the foregoing recitals, that adopting this Resolution, entering into the
Cooperation Agreement, and facilitating the issuance of the Series 2019 Bonds by the Authority
to finance the Refunding Project are necessary, convenient, and in furtherance of the City’s
purposes and are in the best interests of the inhabitants of the City; and will serve the important
public purpose of facilitating the repayment of the Prior City Loans by the Authority to the City.
Section 2. Replenishment of Reserve Fund; Declaration of Intent. To the extent that
the Reserve Fund is cash funded, within 90 days after the City’s receipt of the written notice
from the Trustee of a draw on the Reserve Fund, to the extent that such draw has not been
replenished by another source, as provided in Section 4.06 of the Indenture (the “Written
Notice”), the City shall replenish the Reserve Fund to the Reserve Fund Requirement using
legally available funds of the City, subject to appropriation by the City Council in its sole
discretion. Any such City payment (the “City Payment”) shall be made directly to the Trustee
for deposit in the Reserve Fund in immediately available funds pursuant to the instructions set
forth in the Written Notice. It is the present intention and expectation of the City Council to
appropriate the City Payment requested in any such Written Notice received by the City, within
the limits of available funds and revenues, but this declaration of intent shall not be binding upon
the City Council or any future City Council in any future fiscal year. The City Payments shall
constitute currently appropriated expenditures of the City.
In the event that a Reserve Fund Policy is deposited in the Reserve Fund and the City receives
written notice from the Trustee that it has drawn on the Reserve Fund Policy and such draw has
not been repaid by another source, the City shall repay the provider of the Reserve Fund Policy
in the amount of such draw, plus any interest due thereon, from legally available funds of the
City, subject to appropriation by the City Council in its sole discretion. Any such payment shall
be made directly to the provider of the Reserve Fund Policy. It is the present intention and
expectation of the City Council to appropriate moneys to repay the provider of any Reserve Fund
Policy in the event of a draw thereunder, within the limits of available funds and revenues, but
this declaration of intent shall not be binding upon the City Council or any future City Council in
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any future fiscal year. Any such payments shall constitute currently appropriated expenditures of
the City.
This Resolution shall not create a general obligation or other indebtedness or multiple fiscal year
direct or indirect debt or other financial obligation of the City within the meaning of its Home
Rule Charter or any constitutional debt limitation, including Article X, Section 20 of the
Colorado Constitution. Neither this Resolution nor the issuance of the Series 2019 Bonds shall
obligate or compel the City to make City Payments or to repay the provider of any Reserve Fund
Policy in the event of a draw thereunder beyond those appropriated in the City Council’s sole
discretion.
Section 3. Direction to City Manager. To the extent that the Reserve Fund is cash
funded, within five (5) Business Days following a draw on the Reserve Fund to pay the debt
service requirements on the Series 2019 Bonds, to the extent any such draw is not replenished
from another source, the Trustee is required under Section 4.06 of the Indenture to provide
Written Notice of such draw to the City. The Written Notice shall state the amount required to
be paid by the City to restore the Reserve Fund to the Reserve Fund Requirement after
replenishment from all other sources available under the Indenture. The Written Notice shall
also include instructions for making the City Payment. Any such Written Notice is required to
be sent to the City Manager. Upon receipt of a Written Notice by the City Manager, the City
Council hereby authorizes and directs the City Manager to prepare and submit to the City
Council a request for an appropriation of the amount set forth in the Written Notice. Such
request shall be made in sufficient time to enable the City to make the City Payment within 90
days of receipt of the Written Notice as provided in Section 1 hereof.
In the event that a Reserve Fund Policy is deposited in the Reserve Fund and the City receives
written notice from the Trustee that a draw has been made on the Reserve Fund Policy and such
draw has not been repaid from another source, the City Council hereby directs the City Manager,
upon receipt of such notice, to forthwith prepare and submit to the City Council a request for an
appropriation in an amount sufficient to repay the provider of such Reserve Fund Policy for such
draw, plus any interest due thereon.
Section 4. Repayment of Amounts Appropriated. In the event that the City Council
appropriates funds to make a payment as contemplated by Section 1 hereof, any amounts
actually transferred by the City to the Trustee in accordance with the provisions of Section 1 or
transferred by the City to the provider of a Reserve Fund Policy in accordance with the
provisions of Section 1, shall be treated as an advance under the Cooperation Agreement and
shall be repaid by the Authority in accordance with the provisions of the Cooperation
Agreement, on a basis expressly subordinate and junior to that of the Series 2019 Bonds, any
Additional Bonds and any other obligations or indebtedness that is secured or payable in whole
or in part by the Pledged Revenues on a parity with the Series 2019 Bonds.
Section 5. Limitation to Series 2019 Bonds. Unless otherwise expressly provided by
a subsequent resolution of the City Council, the provisions of this Resolution shall apply only to
the replenishment of the Reserve Fund originally established in the Indenture that secures the
payment of the Series 2019 Bonds and shall not apply to any other reserve funds established in
connection with the issuance of any other obligations.
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Section 6. Approval of Cooperation Agreement. The Cooperation Agreement, in
substantially the form attached hereto as Exhibit A, is in all respects approved, authorized and
confirmed. The Mayor is hereby authorized and directed to execute and deliver the Cooperation
Agreement, for and on behalf of the City, in substantially the form and with substantially the
same content as attached hereto as Exhibit A, provided that such document may be completed,
corrected or revised as deemed necessary by the parties thereto in order to carry out the purposes
of this Resolution. The execution of the Cooperation Agreement by the Mayor shall be
conclusive evidence of the approval by the City Council of such document in accordance with
the terms hereof and thereof.
Section 7. Direction to Act. The City Clerk of the City (the “City Clerk”) is hereby
authorized and directed to attest all signatures and acts of any official of the City in connection
with the matters authorized by this Resolution and to place the seal of the City on any document
authorized and approved by this Resolution. The Mayor, the Mayor Pro-Tem of the City, the
City Manager, the Financial Officer, the City Clerk and other appropriate officials or employees
of the City are hereby authorized and directed to execute and deliver for and on behalf of the
City any and all additional certificates, documents, instruments and other papers, and to perform
all other acts that they deem necessary or appropriate, in order to implement and carry out the
transactions and other matters authorized by this Resolution.
Section 8. Ratification. All actions (not inconsistent with the provisions of this
Resolution) heretofore taken by the City Council or the officers, employees or agents of the City
directed toward the issuance of the Series 2019 Bonds by the Authority and the execution and
delivery of the Cooperation Agreement are hereby ratified, approved and confirmed.
Section 9. Severability. If any section, subsection, paragraph, clause or provision of
this Resolution or the documents hereby authorized and approved shall for any reason be held to
be invalid or unenforceable, the invalidity or unenforceability of such section, subsection,
paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution
or such documents, the intent being that the same are severable.
Section 10. Repealer. All prior resolutions, or parts thereof, inconsistent herewith are
hereby repealed to the extent of such inconsistency.
Section 11. Effectiveness. This Resolution shall take effect immediately upon its
passage.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this
19th day of November, A.D. 2019.
_________________________________
Mayor
ATTEST:
_____________________________
City Clerk
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COOPERATION AGREEMENT
BETWEEN THE CITY OF FORT COLLINS AND
THE FORT COLLINS URBAN RENEWAL AUTHORITY
THIS COOPERATION AGREEMENT (this “Agreement”) dated as of ___________,
2019, is made and entered into between the CITY OF FORT COLLINS, COLORADO (the
“City”) and the FORT COLLINS URBAN RENEWAL AUTHORITY (the “Authority”).
WHEREAS, the City is a Colorado home rule municipality with all the powers and
authority granted pursuant to Article XX of the Colorado Constitution and its City Charter;
and
WHEREAS, the Authority is a Colorado Urban Renewal Authority, with all the
powers and authority granted to it pursuant to Title 31, Article 25, Part 1, Colorado Revised
Statutes (“C.R.S.”) (the “Urban Renewal Law”); and
WHEREAS, pursuant to Article XIV of the Colorado Constitution, and Title 29,
Article 1, Part 2, C.R.S., the City and the Authority are authorized to cooperate and contract
with one another to provide any function, service or facility lawfully authorized to each
governmental entity; and
WHEREAS, the City Council of the City (the “City Council”), by Resolution No.
2011-081 approved and adopted on September 6, 2011, has authorized and approved the
“Midtown Urban Renewal Plan” as an urban renewal plan under the Act (the “Original Plan”)
for the area described therein (the “Original Plan Area”), and the urban renewal projects
described therein; and
WHEREAS, on February 28, 2013, the City Council adopted Resolution 2013-014
which, among other things, ratified and reaffirmed the Original Plan, including the adoption
of the Prospect South tax increment financing district; and
WHEREAS, on May 7, 2013, the City Council adopted Resolution 2013-043
approving modifications to the Original Plan (the “First Amended Plan”); and
WHEREAS, on December 1, 2015, the City Council adopted Resolution 2015-107
approving modifications to the First Amended Plan (the “Second Amended Plan”); and
WHEREAS, one of the modifications included in the Second Amended Plan is the
removal of approximately 167.8 acres of land from the Original Plan Area thereby resulting in
a new plan area (the “New Plan Area”); and
WHEREAS, Resolution 2015-107 provides that the Second Amended Plan is intended
to supersede and replace in all respects the Original Plan and the First Amended Plan except
that the previous Council findings and determinations in Resolutions 2011-081, 2013-014 and
2013-043 shall remain in full force and effect as applied to the New Plan Area except to the
extent expressly superseded or updated in Resolution 2015-107, but the tax increment
EXHIBIT A
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Attachment: Exhibit A (8469 : URA Moral Obligation-Revenue Bonds RESO)
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financing provisions in the Second Amended Plan shall continue to be in effect no later than
twenty-five years after the adoption of the Original Plan; and
WHEREAS, the Second Amended Plan authorizes and describes an urban renewal
project consisting of various undertakings and activities to be undertaken by the Authority to
facilitate the elimination and prevention of blighted within the New Plan Area and to promote
the redevelopment, conservation and rehabilitation of the New Plan Area (collectively, the
“Project”); and
WHEREAS, pursuant to C.R.S. Section 31-25-112, the City is specifically authorized
to do all things necessary to aid and cooperate with the Authority in connection with the
planning or undertaking of any urban renewal plans, projects, programs, works, operations, or
activities of the Authority, to enter into agreements with the Authority respecting such actions
to be taken by the City, and appropriating funds and making such expenditures of its funds to
aid and cooperate with the Authority in undertaking the Project and carrying out the Second
Amended Plan; and
WHEREAS, the City and the Authority have previously entered into that certain
“Intergovernmental Agreement Between the City of Fort Collins, Colorado and the Fort
Collins Urban Renewal Authority” dated August 16, 2006, as amended by the parties in that
certain “First Addendum to the Intergovernmental Agreement Between the City of Fort
Collins, Colorado and the Fort Collins Urban Renewal Authority Regarding Operating Staff
and Resources” approved by the City Council and the Authority’s Board by resolution on July
5, 2011 (jointly, the “IGA”); and
WHEREAS, the IGA sets forth the various services the City will provide to the
Authority and addresses in Section 10 of the IGA that the Authority may provide its own
public liability insurance and other insurance or the parties may agree that the Authority will
be covered under the City’s insurance coverages and the Authority will reimburse the City for
the additional cost of that coverage; and
WHEREAS, the City and the Authority wish to amend in this Agreement Section 10
of the IGA to clarify and expressly provide that until April 1, 2020, the Authority and its
officers and employees are included under and covered by the City’s purchased excess-
insurance coverages and coverage under the City’s self-insurance program and self-insurance
fund as established, provided and described in Division 6 of Article VII in Chapter 2 of the
City Code and in Division 3 of Article III in Chapter 8 of the City Code; and
WHEREAS, the Authority is issuing its Fort Collins Urban Renewal Authority, Tax
Increment Revenue Refunding Bonds (Prospect South), Series 2019 (the “Series 2019
Bonds”) for the purpose of refinancing certain obligations owing by the Authority to the City
that financed certain urban renewal activities in the New Plan Area; and
WHEREAS, the City Council has adopted a Resolution declaring its nonbinding intent
and expectation that it will appropriate any funds requested, within the limits of available
funds and revenues, in a sufficient amount to replenish the Reserve Fund to the Reserve Fund
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Requirement or to repay the provider of any reserve fund insurance policy in the event of a
draw thereunder (the “Replenishment Resolution”) as defined in the Indenture of Trust (the
“Indenture”), between the Authority and U.S. Bank National Association, as trustee (the
“Trustee”); and
WHEREAS, capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Indenture.
NOW, THEREFORE, in consideration of the mutual promises set forth below, the
City and the Authority agree as follows:
1. LOAN. If the City Council appropriates funds pursuant to the
Replenishment Resolution, such funds shall be a loan from the City to the Authority to be repaid
as provided herein.
2. PAYMENT.
(a) All amounts payable by the Authority to the City hereunder shall constitute
“Subordinate Debt” for purposes of the Indenture. The Authority shall cause such amounts to be
paid from and to the extent of Pledged Revenues (as defined in the Indenture) available for the
payment of Subordinate Debt in accordance with the terms of the Indenture including, in
particular, Section 4.04(c) thereof.
(b) The Authority agrees to pay the City interest on the principal balance of any
amounts designated as a loan hereunder at a rate to be determined based upon applicable City
policies in effect at the time of any such loan.
3. FURTHER COOPERATION.
(a) The City shall continue to make available such employees of the City as may be
necessary and appropriate to assist the Authority in carrying out any authorized duty or activity
of the Authority pursuant to the Urban Renewal Law, the Second Amended Plan, or any other
lawfully authorized duty or activity of the Authority.
(b) The City agrees to assist the Authority and the Trustee by pursuing all lawful
procedures and remedies available to it to collect and transfer to the Authority on a timely basis
all Pledged Revenues for deposit into the Revenue Fund. To the extent lawfully possible, the
City will take no action that would have the effect of reducing tax collections that constitute
Pledged Revenues.
(c) The City agrees to pay to the Authority any Pledged Property Tax Revenues
when, as and if received by the City, but which are due and owing to the Authority pursuant to
the Second Amended Plan.
(d) In connection with the issuance of the Series 2019 Bonds, the Authority agrees
that so long as the Series 2019 Bonds are outstanding, the Authority shall submit to the City
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Manager by February 15 of each year a report in substantially the form set forth as Exhibit B to
the Indenture. The City Manager agrees to submit such report to the City Council at its first
regular meeting in March in each year. Notwithstanding the foregoing, failure by the Authority
to provide the report required by this Section3(d) of this Agreement and Section 5.13 of the
Indenture or failure by the City Manager to submit such report to the City Council shall not
constitute a default under this Agreement or under the Indenture.
4. SUBORDINATION. The Authority’s obligation under this Agreement to
repay the City for the loan referred to in Section 1 hereof is subordinate to the Authority’s
obligations for the repayment of the Series 2019 Bonds, any Additional Bonds and any other
obligations or indebtedness that is secured or payable in whole or in part by the Pledged
Revenues on a parity with the Series 2019 Bonds.
5. AMENDMENT OF IGA SECTION 10. Section 10 of the IGA is hereby
amended to read in full as follows:
10. Insurance. The URA and the City agree that the URA and its officers and
employees shall be included in and covered under the excess-insurance coverage the City
purchases each year for itself and its officers and employees. The URA and its officers
and employees shall also be included in and covered under the City’s self-insurance
program and self-insurance fund as established, provided and described in Division 6 of
Article VII in Chapter 2 of the City Code and in Division 3 of Article III in Chapter 8 of
the City Code. The URA shall annually reimburse the City for any additional costs the
City incurs to so insure the URA and its officers and employees. The City and the URA
also agree that the City’s obligation under this section to provide insurance coverages to
the URA and its officers and employees shall terminate on April 1, 2020. Before such
termination date, the parties agree to discuss and decide whether to continue these
coverages by the City from and after April 1, 2020, or whether the URA should
separately obtain its own insurance coverages.
6. GENERAL PROVISIONS.
(a) Separate Entities. Nothing in this Agreement shall be interpreted in any manner
as constituting the City or its officials, representatives, consultants, or employees as the agents of
the Authority, nor as constituting the Authority or its officials, representatives, consultants, or
employees as agents of the City. Each entity shall remain a separate legal entity pursuant to
applicable law. Neither party shall be deemed hereby to have assumed the debts, obligations, or
liabilities of the other.
(b) Third Parties. Neither the City nor the Authority shall be obligated or liable under
the terms of this Agreement to any person or entity not a party hereto, other than the Trustee.
(c) Modifications. No modification or change of any provision in this Agreement
shall be made, or construed to have been made, unless such modification is mutually agreed to in
a
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writing by both parties and incorporated as a written amendment to this Agreement. Memoranda
of understanding and correspondence shall not be construed as amendments to the Agreement.
(d) Entire Agreement. This Agreement shall represent the entire agreement between
the parties with respect to the subject matter hereof and shall supersede all prior negotiations,
representations, or agreements, either written or oral, between the parties relating to the subject
matter of this Agreement and shall be independent of and have no effect upon any other
contracts.
(e) Severability. If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired.
(f) Assignment. Except for the pledge under the Indenture, this Agreement shall not
be assigned, in whole or in part, by either party without the written consent of the other and of
the Bank.
(g) Waiver. No waiver of a breach of any provision of this Agreement by either party
shall constitute a waiver of any other breach or of such provision. Failure of either party to
enforce at any time, or from time to time, any provision of this Agreement shall not be construed
as a waiver thereof. The remedies reserved in this Agreement shall be cumulative and additional
to any other remedies in law or in equity.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers on the date above.
CITY OF FORT COLLINS, COLORADO
Wade Troxell, Mayor
(SEAL)
ATTESTED:
City Clerk
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FORT COLLINS URBAN RENEWAL
AUTHORITY
[SEAL]
By
Chairperson, Board of Commissioners
Attest:
By
Executive Director
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Community Dashboard Metric –
Average # of Transfort Riders Per Hour of Operation
November 19, 2019
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Metric Strategic Alignment
2
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Automatic Passenger Counters
3
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Community Dashboard Metric
4
32.7
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Attachment: Staff Report-Transfort Riders (8470 : Staff Report-Transfort Riders)
Example Routes – Passengers Per Hour
MAX – 46.8
Route 6 – 16.3
Route 8 – 38.2
Route 12 – 12.5
Route 3 – 63.1
Route 31 – 87.6
Route 32 – 52.9
5
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Attachment: Staff Report-Transfort Riders (8470 : Staff Report-Transfort Riders)
National Comparison
6
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Data Driven Decisions
7
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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Drew Brooks
Transfort & Parking Services
Director
STAFF REPORT-Community Dashboard Metric
Average Number of Transfort Riders per Hour of Operation
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1
Halligan Water Supply Project Update
Carol Webb, Deputy Utilities Director
Eileen Dornfest, Project Manager
November 19, 2019
STAFF REPORT-Halligan Water Supply Project Update
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Strategic Alignment
2
Environmental
Health
Water Supply &
Demand Mgt. Policy
Halligan Water Supply Project Consistent with Strategic Objectives
STAFF REPORT-Halligan Water Supply Project Update
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Attachment: Staff Report-Halligan (8471 : Staff Report-Halligan)
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Why Halligan?
Future
Demand
Reliability
Cost
Effective
Triple Bottom
Line Benefits
STAFF REPORT-Halligan Water Supply Project Update
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Draft EIS Public Comment Period
DEIS Release:
Nov. 22
Public
Hearing:
Jan. 13
Comment
Period Closes:
Mid-late Jan
STAFF REPORT-Halligan Water Supply Project Update
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fcgov.com/halligan
5
STAFF REPORT-Halligan Water Supply Project Update
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Attachment: Staff Report-Halligan (8471 : Staff Report-Halligan)
Agenda Item 8
Item # 8 Page 1
AGENDA ITEM SUMMARY November 19, 2019
City Council
STAFF
Cameron Gloss, Planning Manager
Brad Yatabe, Legal
Tom Leeson, Director, Comm Dev & Neighborhood Svrs
SUBJECT
Second Reading of Ordinance No. 138, 2019, Amending the Zoning Map of the City of Fort Collins by
Changing the Zoning Classification for that Certain Property Known as the Hughes Stadium Site Rezoning and
Approving Corresponding Changes to the Residential Neighborhood Sign District Map.
EXECUTIVE SUMMARY
This Ordinance, adopted on First Reading by a vote of 4-3 (Nays: Cunniff, Gutowsky, Pignataro), rezones
164.55 acres located on the west side of Overland Trail and north of CR32, with one condition, and to place
the property into the Residential Sign District. City Council initiated the rezoning on July 16, 2019 and directed
City staff to prepare a rezoning application and make a recommendation regarding the appropriate zoning. The
site is currently zoned Transition (T) and staff recommends placement into the Residential Foothills (RF) and
Low-Density Mixed-Use Neighborhood (LMN) zone districts. A recommended condition of the rezone requires
that future development in the portion zoned Residential Foothills district meet the requirements of a Cluster
Plan pursuant to Land Use Code Section 4.3(E)(2). The request places the property into the Residential Sign
District. The Planning and Zoning Board on a 4-2 vote recommended that City Council not adopt the staff
proposed zoning and instead zone the property entirely Residential Foothills.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on Second Reading.
ATTACHMENTS
1. First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (PDF)
2. Ordinance No. 138, 2019 (PDF)
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Agenda Item 12
Item # 12 Page 1
AGENDA ITEM SUMMARY November 5, 2019
City Council
STAFF
Cameron Gloss, Planning Manager
Tom Leeson, Director, Comm Dev & Neighborhood Svrs
Brad Yatabe, Legal
SUBJECT
First Reading of Ordinance No. 138, 2019, Amending the Zoning Map of the City of Fort Collins by Changing
the Zoning Classification for that Certain Property Known as the Hughes Stadium Site Rezoning and
Approving Corresponding Changes to the Residential Neighborhood Sign District Map.
EXECUTIVE SUMMARY
The purpose of this item is to rezone 164.55 acres located on the west side of Overland Trail and north of CR32
(parcel # 9720100913) with one condition and to place the property into the Residential Sign District. City Council
initiated the rezoning on July 16, 2019 and directed City staff to prepare a rezoning application and make a
recommendation regarding the appropriate zoning. The site is currently zoned Transition (T) and staff
recommends placement into the Residential Foothills (RF) and Low-Density Mixed-Use Neighborhood (LMN)
zone districts. A recommended condition of the rezone requires that future development in the portion zoned
Residential Foothills district meet the requirements of a Cluster Plan pursuant to Land Use Code Section
4.3(E)(2). The request places the property into the Residential Sign District. The Planning and Zoning Board on
a 4-2 vote recommended that City Council not adopt the staff proposed zoning and instead zone the property
entirely Residential Foothills.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
I. Site History
The subject property was annexed into the City of Fort Collins with City Council approval of the Hughes Stadium
Site Annexation Ordinance 123, 2018, on October 16, 2018. The property was placed into the Transition (T)
zone district.
The Hughes property was previously a federally owned parcel that was gifted to the Colorado Board of
Agriculture in September 1957 almost 10 years after the Horsetooth Reservoir construction started. The
Reservoir was completed in 1949, with the first water storage in Horsetooth Reservoir in January 1951.The BLM
first transferred the property to the Department of Health, Education and Welfare and ownership was then
transferred to the Board of Agriculture. Other than a gravel pit fronting on Overland Trail that provided extracted
materials for the Horsetooth Reservoir construction, and dry land farming on the northernmost twenty acres, the
site remained vacant and in an unaltered state until the 1960s.
Hughes Stadium, and a large parking lot covering much of the site, was constructed in 1967 and opened in 1968.
In addition to football games, the stadium hosted music concerts, rodeos, Ag Days, and other public events. A
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Item # 12 Page 2
regional stormwater detention pond of approximately 27 acres was constructed in 1997 on the east/southeast
portion of the site within the rodeo grounds that covered the previously mined area. The detention pond was
constructed as a result of the historic flood event and designed to accommodate stormwater flows originating
from the site as well as parcels to the north and northwest. In 2011, an 18-hole disc golf course was developed
by the City in conjunction with CSU within the detention pond area.
CSU closed Hughes Stadium before the 2017-2018 school year, after completion of the on-campus Canvas
Stadium. Site demolition and construction materials recycling and disposal was completed April - November
2018. The former stadium foundation remains about 10 feet below the ground surface.
Surrounding Zoning and Land Use
North South East West
Zoning Medium Density
Mixed-Use
Neighborhood
(MMN); County FA-1
- Farming
POL (Public Open
Lands); County FA-1 -
Farming
Medium Density Mixed-
Use Neighborhood
(MMN); County FA-1 -
Farming
POL (Public Open
Lands); County FA-1 -
Farming
Land
Use
Single and multi-
family residential
(Westgate); single-
family residential;
pasture
Pineridge Natural Area;
single family house.
Single and multi-family
residential (Trail West,
Willow Lane, Stadium
Heights); Drive-in Movie
Theater
Maxwell Natural Area;
vacant (owned by US
Bureau of Reclamation)
History of Long-Range Plans Pertaining to the Site
Designation of the Hughes Stadium site as an area slated for urban growth has changed substantially over the
last 50 plus years:
1967-The first “modern” comprehensive plan, “The Plan for Progress” was adopted. The Plan recommended
that an expressway be constructed west of Overland Trail connecting the “LaPorte area southerly to the west
border of Loveland”. The “CSU Stadium” was noted on the Plan and Light Industrial land uses were
recommended north of the Stadium along the west side of Overland Trail.
1974-The City’s first Open Space Plan, and also the first element of a new Comprehensive Plan, was adopted.
This Plan provided the initial strategy for acquiring and preserving land for open space (eventually becoming
the Natural Areas program). The Open Space Plan recommended acquisition of land areas within the foothills
designated for geologic hazard, all of which are located at elevations higher than the Hughes site.
(Attachment 1)
1979-Urban Service Area Study; City Council adopted the Land Use Policies Plan and included this land use
element in the Intergovernmental Agreement for the Fort Collins Urban Growth Area (UGA) adopted the
following year. Properties west of Overland Trail, except for the Miller Property abutting the Hughes Stadium
site to the north, were excluded from the UGA at that time.
Agenda Item 12
Item # 12 Page 3
8. Design should address compatibility with existing and planned uses on adjacent public and private lands.
1986-Urban Growth Area (UGA) amendment west of Overland Trail, adding 1,360 acres along the Foothills
and creation of a new Residential Foothills (RF) zone district allowing either a standard subdivision of 1
dwelling unit per 2.29 acres or a “Cluster Development Plan with a gross density of 1 dwelling unit per acre.
No structure could extend above the 5,250-foot elevation under the RF district.
1992-Natural Areas Policy Plan adopted that built upon the Open Space Plan and Foothills Area Study and
was an ‘element’ of the Comprehensive Plan. Maps contained within the Plan do not include the Hughes
Stadium site as part of the foothills resource area.
1997-First version of a new Comprehensive Plan, known as “City Plan,” adopted. The original City Plan
provided a fundamental shift in the community’s land use planning strategy, one that required the mixing of
residential densities and uses within newly developing areas. New land use designations shown on a
Structure Plan map were the Low-Density Mixed-Use Neighborhood and the Medium Density Mixed-Use
Neighborhood. The Hughes Stadium site was located outside of the Growth Management Area (renamed
from the previous Urban Growth Area).
o The RF zone district was carried forward into City Plan recognizing the previous analysis and
policy direction of the Foothills Area Study.
o The Master Street Plan amended to remove the roadway extension of Overland Trail between
Drake and Harmony Roads.
2011-City Plan updated along with a parallel effort to update the Transportation Master Plan. Hughes
Stadium site identified as an “area for future GMA expansion”.
II. Applicable Development Standards
Division 2.9 - Amendment of Zoning Map
Applicable Code
Standard
Summary of Code Requirement and Analysis Staff
Findings
2.9.2 - Applicability Only the Council may, after recommendation of the Planning and Zoning Board,
adopt an ordinance amending the Zoning Map in accordance with the provisions of
Division 2.9.
Complies
2.9.3 - Initiation An amendment to the Zoning Map may be proposed by the Council, the Planning
and Zoning Board, the Director or the owners of the property to be rezoned. On
July 16, 2019, City Council initiated the rezoning of the former Hughes Stadium
site.
Complies
2.9.4 - Text and Map
Amendment Review
Procedures
In order to approve a proposed rezoning of 640 acres of land or less (quasi-
judicial) the decision maker must find that it satisfies the following criteria: The
proposed amendment is: (a) consistent with the City Comprehensive Plan (City
Plan); and/or (b) warranted by changed conditions within the neighborhood
surrounding and including the subject property. The Planning and Zoning Board
and City Council may consider the following additional factors: (a) whether and the
extent to which the proposed amendment is compatible with existing and proposed
uses surrounding the subject land, and is the appropriate zone district for the land;
(b) whether and the extent to which the proposed amendment would result in
significantly adverse impacts on the natural environment, including, but not limited
to, water, air, noise, stormwater management, wildlife, vegetation, wetlands and
natural functioning of the environment; (c) whether and the extent to which the
proposed amendment would result in a logical and orderly development pattern.
Complies
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Item # 12 Page 4
III. Rezoning Procedural Overview
1. Neighborhood Meeting (August 8, 2019)
If a quasi-judicial map amendment is the subject of a known controversy, a neighborhood meeting may be
conducted prior to submittal of a formal development application. Staff convened a neighborhood meeting
in accordance with the Land Use Code on August 8, 2019.
2. Application Submittal
A formal rezoning application was submitted by City staff on August 23, 2019. Staff performed one round of
review through applicable City Departments and referral agencies.
3. Review of Applications
All City staff involved in the development review process reviewed the application.
4. Notice (Posted, Written and Published)
Posted Notice (REZ190001): March 22, 2019, Sign # 431
Written notice: September 5, 2019, 8,400 letters sent to both owners and renters.
Published Notice: Sept 8, 2019
5. Planning and Zoning Board Public Hearing
The Planning and Zoning Board conducted a public hearing on September 19, 2019, and made a formal
recommendation to City Council. In making its recommendation on a quasi-judicial rezoning, the Planning
and Zoning Board must make the following mandatory findings that the proposed amendment is:
(a) consistent with the City’s Comprehensive Plan; and/or
(b) warranted by changed conditions within the neighborhood surrounding and including the subject
property.
Further, the Board may consider the following factors:
(a) whether and the extent to which the proposed amendment is compatible with existing and
proposed uses surrounding the subject land and is the appropriate zone district for the land;
(b) whether and the extent to which the proposed amendment would result in significantly adverse
impacts on the natural environment, including, but not limited to, water, air, noise, stormwater
management, wildlife, vegetation, wetlands and the natural functioning of the environment;
(c) whether and the extent to which the proposed amendment would result in a logical and orderly
development pattern
6. City Council Public Hearing
The City Council will conduct a public hearing and decide on the proposed rezoning based on the quasi-
judicial rezoning review criteria.
IV. City Plan (Comprehensive Plan) Background
City Plan provides the primary adopted plan and policy document applied to rezoning applications. This section
summarizes the relevant policies applicable to the rezoning and the ‘place types’ depicted on the recently revised
Structure Plan Map. As necessary, this staff report includes analyses related to City Plan.
In April 2019, City Council adopted a revised City Plan that repealed and replaced the 2011 version.
A. City Plan Outcome Areas
The 2019 City Plan is organized based on seven outcome areas that form the basis of the City’s Budgeting for
Outcomes (BFO) process. These outcome areas are:
1. Neighborhood Livability and Social Health
2. Culture and Recreation
3. Economic Health
4. Environmental Health
5. Safe Community
6. Transportation
7. High Performing Community
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Item # 12 Page 5
Three core values guide the vision for City Plan: livability, community, and sustainability. Each outcome area
has a series of statements indicating how the principles and policies of each outcome area align with the core
values. Action plans accompany each outcome area to ensure implementation of City Plan. The applicable vision
statements are:
1. Neighborhood Livability and Social Health
Encouraging a welcoming, equitable community that celebrates diversity
Requiring adequate public facilities and infrastructure to serve existing development and new
growth
Maintaining our unique character and sense of place
Encouraging the development of quality and affordable housing options for residents of all
income levels
Managing where and how the city grows in the future
Reducing the impacts of our built environment on the natural environment
Providing residents with opportunities to live healthy, safe, and active lifestyles
Preserving historic resources and character-defining features that make Fort Collins unique
Promoting the use of sustainable-building and site-design techniques
Creating a distinctive and attractive community that is appealing to workers, visitors, and
residents
2. Culture and Recreation
Increasing access to arts, culture and recreation opportunities for all residents and visitors
Encouraging a welcoming, equitable community that celebrates diversity
3. Economic Health
Reducing identified barriers of workforce attraction and retention, including access and
affordability of housing and childcare
Environmental Health
Providing access to natural areas and environmentally sensitive community separators to create
opportunities to experience nature
Protecting, enhancing and restoring ecosystems in both urban and natural contexts
Providing affordable and equitable access to nature and the environment
Protecting and improving the quality of our air, water and night skies
4. Safe Community
Using ecosystem services and other natural functions of the environment to enhance our safety
and help protect us from natural hazards
Mitigating risks posed by natural hazards to businesses and property
Encouraging healthy living through active transportation and physical activity
Guiding development away from high-risk areas
5. Transportation
Adapting to changes in technology, demographics and mobility-as-a-service with new
transportation modes and partnerships
Identifying the types of transit services that can grow and leverage changing transportation
technologies, while still providing access to a broad section of the community to critical transit
services
Integrating land use and transportation planning and investments
Providing a safe, convenient and connected transportation network for all modes
Building an equitable bicycle and pedestrian network to serve residents of all ages and abilities
Designing the City’s transportation facilities and network to be reliable, affordable, efficient,
connected and comfortable
6. High Performing Community
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Item # 12 Page 6
Ensuring that all members of the community are involved in decision making
Maintaining efficient and effective local government processes that reduce barriers to innovation
and economic development
Using a triple bottom line that incorporates equity and considers the social, economic and
environmental impacts of decisions.
B. Trends and Forces Report
A report was prepared during the first phase of the City Plan Update that highlighted major trends and key issues
facing the community. This Trends and Forces Report highlighted those choices and trade-offs that needed to
be explored in light of both trends and existing conditions.
Of these trends, one of the major areas of focus for the City Plan update was the challenges that Fort Collins
faces in the provision of housing.
Since 2000, Fort Collins and Larimer County have produced more jobs than housing units, and the jobs-
housing imbalance has recently accelerated. At the same time, rents and home prices in Fort Collins have
been increasing faster than wages.
The demographic composition of Fort Collins is changing dramatically. The population is aging (particularly
those over the age of 65) and will represent a larger percentage of the City’s population in the future.
However, younger adults are also moving to Fort Collins in increasing numbers, attracted by employment
opportunities and quality of life. This trend is expected to continue. As a result, the composition of demand
for housing in Fort Collins will undoubtedly shift. Some of these shifts are being driven by younger residents
who prefer different housing options and from older residents who no longer have the desire and/or ability
to maintain their single-family home.
The difficulty providing additional housing to meet our needs is increasingly constrained by a limited supply
of vacant land.
Based on current trends, our supply of vacant land will be exhausted by 2040.
Unlike the Hughes property, most of the vacant land in the GMA is not served by City sewer and water
utilities. This dynamic could impact the availability, timing, and pricing of future development.
This need for additional housing and a greater range of housing choice has become a growing community
concern over the last decade given changes to the jobs-housing balance and demographics. Public engagement
during the City Plan Update, which included the participation of nearly 4,000 members, consistently showed
housing availability and affordability as the top-cited community challenge. This has also been borne out in
results of recent Community Surveys where citizens have rated our housing affordability lower than national and
Front Range benchmarks.
C. Structure Plan Map
The Structure Plan Map in City Plan provides a framework for the ultimate buildout of Fort Collins. It focuses on
the physical form and development pattern of the community, illustrating areas where new greenfield
development, infill, and redevelopment is likely to occur, as well as the types of land uses and intensities to
encourage. The Structure Plan:
Guides future growth and reinvestment and serves as official Land Use Plan for the City;
Informs planning for infrastructure and services;
Fosters coordinated land use and transportation decisions within the city and region; and
Helps implement principles and policies.
The Growth Management Boundary (GMA) was expanded during the 2019 Update to include the Hughes
Stadium site because of City Plan conclusions provided in 2011 and for the need of additional housing described
in the Trends and Forces Report. The revised GMA boundary is reflected on the Structure Plan Map.
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One of the most significant changes to the 2019 City Plan from the 2011 version is the use of “place types” on
the Structure Plan Map to describe future development character rather than land use districts. “Place type”
descriptions provide a set of visual and narrative criteria to describe the look, feel, and general character of a
part of the community. Thirteen (13) place types, describing three types of neighborhoods, eight districts, and
two open lands categories are depicted on the Structure Plan.
Two place types are designated on the Hughes Stadium site: Suburban Neighborhood on the west half and
Mixed-Use Neighborhood on the east half which are generally described below.
1. Suburban Neighborhood Place Type
Density
Between 2 and 5 principal dwelling units per acre
Principal Land Use
Single-family detached homes
Supporting Land Use
Parks and recreational facilities, schools, places of worship, accessory dwelling units in some locations
(where permitted by underlying zoning)
Key Characteristics/Considerations
Comprised of predominantly single-family detached homes
Neighborhood Centers may serve as focal points within Single-family Neighborhoods (see Neighborhood
Mixed-Use District)
Amenities and infrastructure encourage walking and biking, but transit service is typically more limited
Typical Types of Transit:
Limited local bus service with frequencies of approximately every 60 minutes; some locations may also be
served by flex services
2. Mixed Neighborhood Place Type
Density
Between 5 and 20 principal dwelling units per acre (typically equates to an average of 7 to 12 dwelling units
per acre)
Principal Land Use
Single-family detached homes, duplexes, triplexes and townhomes
Supporting Land Use
Accessory dwelling units, small-scale multi-family buildings, small-scale retail, restaurants/cafes, community
and public facilities, parks and recreational facilities, schools, places of worship
Key Characteristics/Considerations (New Neighborhoods)
Provide opportunities for a variety of attached and detached housing options and amenities in a compact
neighborhood setting; some neighborhoods also include (or have direct access to) small-scale retail and
other supporting services
Neighborhood Centers should serve as focal points within Mixed-Neighborhoods (see Neighborhood Mixed-
Use District)
Typically located within walking/biking distance of services and amenities, as well as high frequency transit
Mixed-Neighborhoods built in a greenfield context should include a mix of housing options (lot size, type,
price range, etc.).
Where townhomes or multi-family buildings are proposed in an existing neighborhood context, a transition
in building height, massing, and form should be provided along the shared property line or street frontage.
As existing neighborhoods change and evolve over time, rezoning of some areas may be appropriate when
paired with a subarea or neighborhood planning initiative.
Typical Types of Transit
In areas on the lower end of the density range, service will be similar to Single-Family Neighborhoods; as
densities approach 20 dwelling units per acre, fixed-route service at frequencies of between 30-60 minutes
D. Use of the Structure Plan in a Rezoning Evaluation
City Plan sets specific direction on how the Structure Plan is to be used when evaluating a rezoning:
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“How to Use the Structure Plan
The Structure Plan establishes a broad vision for future land uses in Fort Collins. In most cases, land
use categories generally follow existing parcel lines, roadways, and other geographic boundaries. If the
place type boundary shown on the Structure Plan map does not follow an existing parcel line, the actual
delineation of place types will be established at the time of a proposed rezoning and development
submittal.
Underlying zoning was reviewed and considered as updates to the Structure Plan were made to ensure
that consistency between planned land uses and zoning could be maintained to the maximum extent
feasible. However, in some instances, place type categories do differ from underlying zoning, as was
necessary to meet the broader objectives of the Plan. To fully achieve the Plan’s objectives, rezoning
may be required when some properties develop or redevelop in the future.
Future zone changes should generally adhere to the place type boundaries depicted in the Structure
Plan, but flexibility in interpretation of the boundary may be granted provided the proposed change is
consistent with the principles, goals, and policies contained in this Plan. Density ranges outlined for
each place type category are based on gross acreage and are intended to address overall densities for
a particular area rather than for individual parcels.
The Structure Plan is not intended to be used as a standalone tool; rather, it should be considered in
conjunction with the Transportation Plan, and the accompanying principles, goals, and policies
contained in this Plan”.
E. City Plan Principles and Policies
The rezoning application must also be evaluated based upon the principles and policies found in City Plan. The
most applicable principle and policies highlighted below reflect expressed community values related to open land
preservation, support for natural ecosystems, the efficient use of urban land and the need to supply housing to
meet both immediate and future needs.
Principle ENV 1: Conserve, create and enhance ecosystems and natural spaces within Fort Collins, the
GMA and the region.
POLICY ENV 1.1 - PUBLICLY CONTROLLED OPEN LANDS
Maintain a system of publicly controlled natural areas to maintain the integrity of wildlife habitat and conservation
sites, protect corridors between natural areas, conserve outstanding examples of Fort Collins’ diverse natural
heritage, and provide a broad range of opportunities for educational, interpretive and recreational programs to
meet community needs
POLICY ENV 1.2 - LAND CONSERVATION AND STEWARDSHIP
Continue to acquire, manage, maintain and enhance public open lands and natural areas in accordance with the
City’s Natural Areas Master Plan to ensure the protection of plants and animals in need of conservation and their
associated ecosystems; support biodiversity; control the invasion and spread of non-native plants; improve
aesthetics; and provide opportunities for appropriate public use.
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POLICY ENV 1.3 - NATURE IN THE CITY
Conserve, protect and enhance natural resources and high-value biological resources throughout the
GMA by:
Directing development away from natural features to the maximum extent feasible;
Identifying opportunities to integrate or reintroduce natural systems as part of the built environment to
improve habitat in urbanized areas and expand residents’ access to nature;
Utilizing green infrastructure to manage stormwater and increase greenspace in public rights-of-way and
as part of public and private development; and
Supporting the use of a broad range of native landscaping that enhances plant and animal diversity.
POLICY ENV 1.6 - WILDLIFE CORRIDORS
Conserve and enhance wildlife movement corridors through a network of public open lands and natural habitat
buffers along natural features such as streams and drainageways.
Policy LIV 1.6 - ADEQUATE PUBLIC FACILITIES
Utilize the provision of public facilities and services to direct development to desired location, in accordance with
the following criteria:
Direct development to locations where it can be adequately served by critical public facilities and
services such as water, sewer, police, transportation, schools, fire, stormwater management and parks,
in accordance with adopted levels of service for public facilities and services.
Principle LIV 5: Create more opportunities for housing choices.
Policy LIV 5.1 - HOUSING OPTIONS
To enhance community health and livability, encourage a variety of housing types and densities, including mixed-
used developments that are well served by public transportation and close to employment centers, shopping,
services and amenities.
Policy LIV 5.2 - SUPPLY OF ATTAINABLE HOUSING
Encourage public and private sectors to maintain and develop a diverse range of housing options, including
housing that is attainable (30% or less of monthly income) to residents earning the median income. Options
could include ADUs, duplexes, townhomes, mobile homes, manufactured housing and other “missing middle”
housing types.
Policy LIV 5.3 - LAND FOR RESIDENTIAL DEVELOPMENT
Use density requirements to maximize the use of land for residential development to positively influence housing
supply and expand housing choice.
V. ZONING SCENARIOS
Based on the two “place types” described in City Plan, as well as the site context and evaluation of public
comments received through the community engagement process, five prospective zoning districts were
considered: Residential Foothills (RF), Urban Estate (UE), Low-Density Mixed-Use Neighborhood (LMN),
Medium-Density Mixed-Use Neighborhood (MMN) and Public Open Lands (POL). Five options were developed
that combined these first four districts as ‘scenarios’ that were included in the public evaluation. The Public
Open Lands district was not brought forward as this district is limited to publicly owned property.
The five scenarios are reflected in Attachment 7.
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1. RF zoning on western half and LMN zoning on eastern half, with a requirement that the RF-zoned area meet
the standards for a “cluster plan”.
2. RF zoning on western half and MMN zoning on eastern half, with a requirement that the RF-zoned area
meet the standards for a “cluster plan”.
3. UE zoning on western half and MMN zoning on eastern half, with a requirement that the UE-zoned area
meet the standards for a “cluster plan”.
4. UE zoning on western half and LMN zoning on eastern half, with a requirement that the UE-zoned area meet
the standards for a “cluster plan”.
5. UE zoning on western half and a mix of MMN and LMN zoning on eastern half, with a requirement that the
UE-zoned area meet the standards for a “cluster plan”.
Article 4 of the Land Use Code provides use and development standards pertaining to various zone district and
the review process applicable to each use type. Allowed uses are as follows:
Article 4 of the Land Use Code provides use and development standards pertaining to various zone
district and the review process applicable to each use type. Allowed uses are as follows: BDR = Basic
Development Review Type 1 = Administrative Review Type 2 = Planning & Zoning Board Review
Land Use Residential
Foothills (RF)
Urban
Estate
(UE)
Low-Density
Mixed-Use
Neighborhood
(LMN)
Medium-
Density
Mixed-Use
Neighborh
ood (MMN)
Public
Open
Lands
(POL)
Accessory buildings BDR BDR BDR BDR BDR
Accessory uses BDR BDR BDR BDR BDR
Farm animals Type 1 Type 1 Prohibited Prohibited Prohibited
Urban agriculture BDR BDR BDR BDR BDR
Agricultural activities Prohibited Prohibited Prohibited Prohibited Type 2
Off-site construction staging BDR BDR BDR BDR BDR
Wireless Telecommunication
Equipment
BDR BDR BDR BDR BDR
Neighborhood Parks BDR BDR BDR BDR BDR
Cemeteries Prohibited Prohibited Prohibited Prohibited Type 1
Short term primary rentals Prohibited BDR BDR BDR Prohibited
Shelters for victims of domestic
violence
BDR BDR BDR BDR Prohibited
Parks, recreation and other Open
Lands
Type 1 Type 1 Type 1 Type 1 Type 1
Single-family detached dwellings Type 1 Type 1 Type 1 Type 1 Prohibited
Residential Cluster Developments Type 1 Type 2 Prohibited Prohibited Prohibited
Single-family attached dwellings Prohibited Type 1 Type 1 Type 1 Prohibited
Two-family dwellings Prohibited Type 1 Type 1 Type 1 Prohibited
Group homes for up to 8 occupants Prohibited Type 1 Type 1 Type 1 Prohibited
Group homes with More than 8
occupants
Agenda Item 12
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Land Use Residential
Foothills (RF)
Urban
Estate
(UE)
Low-Density
Mixed-Use
Neighborhood
(LMN)
Medium-
Density
Mixed-Use
Neighborh
ood (MMN)
Public
Open
Lands
(POL)
Places of worship or assembly Type 1 Type 2 Type 1 Type 1 Prohibited
Community facilities Prohibited Prohibited Type 1 Type 1 Type 2
Neighborhood support/recreational
facilities
Prohibited Prohibited Type 1 Type 1 Prohibited
Seasonal overflow shelters Prohibited Prohibited Type 1 Type 1 Prohibited
Minor public facilities Type 1 Type 1 Type 1 Type 1 Prohibited
Wildlife rescue and Education centers Type 2 Type 2 Type 2 Prohibited Type 2
Convenience retail w/o fuel sales Prohibited Prohibited Prohibited Type 2 Prohibited
Restaurant, limited Mixed-use Prohibited Prohibited Prohibited Type 1 Prohibited
Golf courses Type 2 Type 2 Type 2 Prohibited Type 2
Childcare centers Prohibited Type 2 Type 1 Type 1 Prohibited
Bed and Breakfast 6 or fewer beds Type 2 Type 2 Type 1 Type 1 Prohibited
Plant nurseries & greenhouses Type 2 Type 2 Prohibited Prohibited Prohibited
Farmer’s Market if in a park or central
feature
Prohibited Prohibited Prohibited Type 1 Prohibited
Large/farm animal Boarding Prohibited Type 2 Prohibited Prohibited Prohibited
Adult day/respite Care Prohibited Type 2 Type 1 Prohibited Prohibited
Small-scale reception centers Prohibited Type 2 Prohibited Prohibited Prohibited
Resource extraction Prohibited Type 2 Prohibited Prohibited Prohibited
Composting facilities Prohibited Type 2 Prohibited Prohibited Type 1
Accessory buildings/ uses <2,500 sq.
ft.
Prohibited Type 2 Type 2 BDR Prohibited
Accessory buildings/ uses >2,500 sq.
ft.
Prohibited Type 2 Prohibited BDR Prohibited
Neighborhood Center With at least 2
Commercial/service uses
Prohibited Prohibited Type 1 Prohibited Prohibited
Personal/business service shops Prohibited Prohibited Prohibited Type 2 Prohibited
Offices, financial Services, clinics Prohibited Prohibited Prohibited Type 2 Prohibited
Small and medium- Scale solar
energy systems
Type 2 Type 2 Type 2 Type 2 Prohibited
Resource recovery Prohibited Prohibited Prohibited Prohibited Type 2
All uses that are not expressly allowed as permitted uses above are prohibited
Staff recommends Option 1 that provides the combination of the RF (conditioned upon the requirement for a
cluster development plan) and LMN zone districts. Clustering on the RF portion of the site will provide more
Agenda Item 12
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The RF District provides two options for development: single-family houses on individual lots at least 2.29 acres
in size, or single-family houses clustered at a gross density of one unit per acre.
Three development plans have been approved and constructed within the Residential Foothills Zone: Burns
Ranch at Quail Ridge, The Ponds at Overland, and Bella Vira. All portions of these developments lying within
the RF zone district have been ‘cluster developments’.
Of these projects, the Ponds at Overland (1995) was the most controversial during the development review
process. The project was approved as a cluster plan of 284 single family lots on 284.23 acres, with clustering
at 3 to 5 units per acre on developed portions of the property. An appeal of the Planning and Zoning Board
approval of the project to City Council from a citizen’s group “Friends of the Foothills” showed objections based
on perceived negative impacts of density, site grading, aesthetics to the foothills, traffic congestion, storm
drainage, wildlife habitat, trail access, and to impacts to noise, air, and community stress levels.
Low-Density Mixed-Use Neighborhood (LMN) District
The Low-Density Mixed-Use Neighborhood (LMN) district was created in 1997. The LMN district became the
predominant zoning district applied to vacant undeveloped parcels since that time. The purpose of the LMN
District expressed in the Land Use Code:
The Low-Density Mixed-Use Neighborhood District is intended to be a setting for a predominance of
low-density housing combined with complementary and supporting land uses that serve a
neighborhood and are developed and operated in harmony with the residential characteristics of a
neighborhood. The main purpose of the District is to meet a wide range of needs of everyday living in
neighborhoods that include a variety of housing choices, that invite walking to gathering places,
services and conveniences, and that are fully integrated into the larger community by the pattern of
streets, blocks, and other linkages. A neighborhood center provides a focal point, and attractive
walking and biking paths invite residents to enjoy the center as well as the small neighborhood parks.
Any new development in this District shall be arranged to form part of an individual neighborhood.
For the purposes of this Division, a neighborhood shall be considered to consist of approximately
eighty (80) to one hundred sixty (160) acres, with its edges typically consisting of major streets,
drainageways, irrigation ditches, railroad tracks and other major physical features.
VI. REZONING EVALUATION
As stated, rezoning requests are principally evaluated based on compliance with City Plan and/or changed
conditions within the neighborhood surrounding and including the subject property, although other factors may
be considered.
A. Mandatory Requirements
1. Consistency with City Plan (Zoning Map Amendment Requirement)
The proposed RF and LMN zoning district boundaries coincide with the Suburban Neighborhood and Mixed
Neighborhood ‘place type’ designations found on the City Plan Structure Plan Map and strike an appropriate
balance between adopted City Plan Environmental and Livability principles and policies.
2. Warranted by changed conditions within the neighborhood surrounding
Not applicable.
B. Additional Factors that May Be Considered
1. Compatibility with existing and proposed Uses (Additional Considerations per LUC)
The proposed zoning district boundary demarking the east/west zoning split aligns with the longitudinal
boundary of Residential Foothills (RF) zoning to the north that governs development on The Ponds at Overland
and Bella Vira neighborhoods. This zoning configuration, along with the condition that any future development
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be a “cluster plan”, provides a clear transition from the City of Fort Collins natural areas along the foothills and
higher residential densities permitted along Overland Trail. Abutting neighborhoods to the north and east are
of a similar residential density and housing type mix as permitted in the LMN-zoned portion of the site.
2. Adverse Impacts to the Natural Environment (Additional Considerations per LUC)
The property has been substantially altered from its natural condition; therefore, the rezoning will not result in
negative impacts to natural vegetation or surface water patterns. Site modifications began in the 1940’s when
a portion of the property fronting Overland Trail was mined for gravel used in the Horsetooth Reservoir
construction. The site was later cleared of natural vegetation, stream channels were removed, and the site
regraded to accommodate construction of Hughes Stadium and a heavily compacted parking area covering
more than 100 acres. Except for trees and shrubs planted approximately 10 years ago by CSU to enhance
property aesthetics, vegetation consists largely of invasive weedy species like cheatgrass, Canada thistle,
mullein, kochia, bindweed, and puncture vine. No cost analysis has been conducted with respect to restoring
the site to its original, natural condition, although, anecdotally, the costs appear to be significant.
The Natural Areas Department (Department) considers numerous criteria when prioritizing a site for acquisition
as a natural area. The Department may only acquire land from a willing seller if using dedicated program funds.
The following criteria are considered: current and potential wildlife habitat values; access to nature for the
community; value as buffer or addition to an existing natural area; existing condition of property and the cost
to restore; other conservation values such as scenic, community separator, agriculture, cultural resources;
alignment with City Plan goals and the Natural Areas Master Plan; and, education opportunities.
The City did not attempt to purchase the site as there is not a willing seller and the criteria for acquisition have
not been met. From the perspective of Natural Areas staff, there would be significant opportunity costs
associated with a purchase. For example, funds directed to the Hughes site would not be available for
conservation in northeast Fort Collins which has no natural area sites. The Hughes site, on the other hand,
has nearby natural areas of over 1,000 acres with nearly 10 miles of trail as well as a large community park.
There will be little to no impacts to wildlife as no wetlands exist on the site and it provides limited resident
wildlife habitat. Clustering of development within RF-zoned areas provide an opportunity to connect with
wildlife movement corridors.
Prior to any future development on the site, an Ecological Characterization Study must be prepared by a
professional qualified in the areas of ecology, wildlife biology or other related discipline. The study must identify
areas with wildlife, plant life and/or natural characteristics in need of protection.
The existing stormwater detention area known as the “rodeo pond” fronting Overland Trail has been sized to
accommodate local and regional stormwater runoff regardless of the zoning districts designated on the
property.
No evidence suggests that permitted density/activity under the proposed zoning will result in adverse impacts
to air quality when considering the regional impacts on Fort Collins’ air quality. The biggest air quality problem
near the Front Range foothills is ozone during the warmer months. Ozone patterns are the result of urban
emissions (vehicles, industry and oil & gas operations being the largest contributors) photochemically aging
as they travel west during the daytime upslope winds. This ozone impact would not be the result of new
construction on the Hughes site, just of transport of emissions from the Front Range urban corridor. Particulate
matter (PM2.5/PM10) levels along the Foothills are some of the lowest in the community and generally lessen
further from the I-25 corridor.
3. Logical and Orderly Development Pattern
The proposed amendment would result in a logical and orderly development pattern by:
Providing a density and intensity gradient and land use transition between the developed character along
Overland Trail to the natural character of the Maxwell Natural Area abutting to the west.
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Placing the lowest housing density and opportunities to retain more land in an open state on the west portion
of the site.
Placing comparable residential density along the east and northeast portions of the site towards existing
residential neighborhoods of similar density and housing mix.
Orienting the LMN zone district toward Overland Trail which will provide a “neighborhood center” serving the
site and nearby residences.
Allowing housing opportunities on the site where a full range of urban services- arterial streets, water,
sanitary sewer, storm drainage, electric power, schools and trails- are either presently available or can be
provided.
Specifically, to transportation, the City’s Master Street Plan will serve as a guide as it anticipated adequate
arterial capacity for growth in the area. If and when a development plan is submitted, a detailed traffic review
will be required and all Transportation Level of Service (LOS) standards must be met. Transportation-related
impacts may require improvements to the transportation system both adjacent and off-site for vehicular, bicycle,
pedestrian and transit modes.
VII. Condition of Approval
Land Use Code Section 2.9.4(I) allows conditions of approval to be imposed upon a rezoning. Staff recommends
that Council impose the condition of approval that any development within the portion of the property zoned as
Residential Foothills (R-F) be developed in clusters pursuant to Land Use Code Section 4.3(E)(2). Staff is
recommending this condition of approval to provide a clear transition from the City of Fort Collins natural areas
along the foothills and place higher residential densities permitted along Overland Trail. Clustering on the RF
portion of the site will provide more habitat for wildlife corridors along the foothills, require less new utility and
street infrastructure, and better maintain a more ‘open’ character.
CITY FINANCIAL IMPACTS
No significant impacts as the request is limited to rezoning.
BOARD / COMMISSION RECOMMENDATION
The Planning and Zoning Board conducted a public hearing of the rezoning request on September 19, 2019,
and recommended, on a 4-2 vote, that City Council not adopt the proposed zone districts. Alternatively, the
Board recommended that the property be rezoned to Residential Foothills (RF) with the requirement that future
development meet the requirements of a Cluster Plan pursuant to Land Use Code Section 4.3 (E)(2).
Planning and Zoning Board Hearing minutes are provided as Attachment 26.
PUBLIC OUTREACH
I. Neighborhood Meeting
Staff convened one neighborhood meeting in accordance with Land Use Code Section 2.9.4(B) on August 8,
2019. A neighborhood meeting to discuss potential redevelopment of the Hughes site was also held on April 4,
2019, and Colorado State University held two Listening Session (September 20, 2017, and October 18, 2017).
See Attachments 10-22 for the two neighborhood meeting summaries, individual public comments and the
Listening Session Feedback summaries.
II. Public Comments
A consistent theme throughout the public process has been the preference expressed by community members
that the site be retained in an undeveloped state and that views to the foothills be protected. Comments range
from the acquisition by a public agency as a protected Natural Area or Open Space to expanded use as a
recreational site.
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During the rezoning neighborhood meeting, attendees expressed an overall preference for as much open space
as possible on the site to protect resources within the Maxwell Natural Area to the west, create a buffer for wildlife
in the area, protect views of the foothills for surrounding neighborhoods and keep the traffic impact low. A slight
preference for “clustering” on the western edge of the site was indicated.
Responses at the Hughes Stadium Open House on the question about which three characteristics are most
important for the site:
III. Scenarios Feedback
Of the 5 Scenarios presented at the neighborhood meeting (Attachment 7), support for Scenario 1 was most
prominent among attendees. Many comments related to Scenario 1 involved a desire for as much open space
as possible within the zone district configuration presented in Scenario 1.
Many comments included a desire for a “6th scenario,” zoned as “Public Open Lands” or “POL” only. Several
comments requested that at least half of the site be designated as Public Open Lands. Comments also included
a desire for even lower development density than Scenario 1 allows. Some of these concerns were expressed
in conjunction with a concern regarding traffic congestion and stress on existing road infrastructure in the area,
including pedestrian and bicycle infrastructure. Several comments expressed a desire for affordable housing on
the site.
Some benefits mentioned regarding Scenario 1 were made in contrast to the other Scenarios; across several
Scenarios, comments regarding a desire for the lower-density option (Scenario 1) were expressed. These
comments were made in conjunction with a desire to preserve views of the foothills with lower density housing,
a desire to keep development at 2 stories and a desire for low impact on existing wildlife in the area.
A small number of comments expressed interest in high-density housing options, citing the need for different
housing types and sizes correlated to affordability.
In order to understand the preferred site zoning after presenting the scenarios, staff presented a half sheet empty
site outline to allow attendees to draw in their preferred site zoning.
Many drawings indicated a desire for “Public Open Lands” or POL across the entire site.
Several other drawings indicated a preference for some development on the site with a protective naturalistic
or open space buffer along the western edge of the site.
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ATTACHMENTS
1. 1974 Open Space Plan Map and Recommendations (PDF)
2. Foothills Issues Report (PDF)
3. Hughes Proposed Zone Districts (PDF)
4. Structure Plan Map (PDF)
5. City Plan Place Type Summaries-Suburban and Mixed Neighborhoods (PDF)
6. Article 4 Use and Development Standards for RF and LMN zone districts (PDF)
7. Maps of 5 Zoning Districts Scenarios Considered (PDF)
8. Memo-Air Quality Impacts of Foothills Development (PDF)
9. Rezoning Neighborhood Meeting Presentation (PDF)
10. Public Comments Summary, September 3, 2019 (PDF)
11. Staff presentation to Boards and Commissions (PDF)
12. Hughes Scenarios Sticky Note Feedback (PDF)
13. Scenario 1-5 Sticky Note Feedback (PDF)
14. Hughes Zoning Drawings from Neighborhood Meeting (PDF)
15. Site Characteristics Most Important to Participants at Neighborhood Meeting (PDF)
16. Summary of Scenario Comments (PDF)
17. Other Comments from Neighborhood Meeting (PDF)
18. Citizen Comments Received (PDF)
19. Planning Action to Transform Hughes Sustainably (PATHS) comments (PDF)
20. OurCity Webpage comments (PDF)
21. First Neighborhood Meeting Comments (PDF)
22. Neighborhood Listening Session Attendee Feedback, September 20, 2017 (PDF)
23. Planning and Zoning Board Minutes, September 19, 2019 (PDF)
24. Letter Regarding Emergency Access at Proposed Hughes Stadium Development (PDF)
25. Powerpoint presentation (PDF)
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-1-
ORDINANCE NO. 138, 2019
OF THE COUNCIL OF THE CITY OF FORT COLLINS
AMENDING THE ZONING MAP OF THE
CITY OF FORT COLLINS BY CHANGING THE ZONING
CLASSIFICATION FOR THAT CERTAIN PROPERTY KNOWN
AS THE HUGHES STADIUM REZONING AND APPROVING CORRESPONDING
CHANGES TO THE RESIDENTIAL NEIGHBORHOOD SIGN DISTRICT MAP
WHEREAS, Division 1.3 of the Fort Collins Land Use Code (the “Land Use Code”)
establishes the Zoning Map and Zone Districts of the City; and
WHEREAS, Division 2.9 of the Land Use Code establishes procedures and criteria for
reviewing the rezoning of land; and
WHEREAS, on October 16, 2018, City Council approved Ordinance No. 123, 2018,
annexing the Hughes Stadium Annexation property (the “Property”) consisting of approximately
164.56 acres into the City; and
WHEREAS, on October 16, 2018, City Council approved Ordinance No. 124, 2018, to
place the Property into the Transition (T) zone district upon annexation; and
WHEREAS, on July 16, 2019, City Council adopted Resolution 2019-084 to initiate the
rezoning of the Property and directed City staff to prepare a rezoning application on behalf of the
City and make a recommendation to the Planning and Zoning Board and City Council regarding
the appropriate zoning for the Property, all in accordance with Land Use Code Section 2.9.4; and
WHEREAS, City staff submitted an application for rezoning requesting that the Property
be rezoned as “Low Density Mixed-Use Neighborhood (LMN) on the east half of the property
and Residential Foothills (RF) on the west half of the property, with a condition that residential
units be clustered and 50% of the area be retained in an 'open' condition” (the “Proposed
Rezoning”); and
WHEREAS, on September 19, 2019, the Planning and Zoning Board on a 4-2 vote
recommended that City Council not adopt the Proposed Rezoning and instead that Council rezone
the Property entirely as Residential Foothills (R-F); and
WHEREAS, City staff is recommending that City Council implement the recommended
condition by requiring that residential development on the Residential Foothills zone district
portion of the Property meet the requirements for Site Design for Residential Cluster Development
set forth in Land Use Code Section 4.3(E)(2); and
WHEREAS, after publishing public notice on Sunday, October 13, 2019, City Council held
a public hearing on November 5, 2019, to consider the rezoning as set forth herein and at that
hearing City staff and members of the public provided information and testimony.
8.b
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Attachment: Ordinance No. 138, 2019 (8460 : SR 138 Hughes Stadium Rezoning)
-2-
NOW THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF FORT
COLLINS:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
Section 2. That City Council, after considering at the November 5, 2019, hearing the
Planning and Zoning Board recommendation, the testimony of the public and City staff, and the
information provided for the hearing, hereby finds that the Proposed Rezoning is:
(1) Consistent with the City's Comprehensive Plan;
(2) Is compatible with existing and proposed uses surrounding the Property and is the
appropriate zoning for the Property;
(3) The proposed zoning would not result in significantly adverse impacts on the natural
environment;
(4) Would result in a logical and orderly development pattern.
Section 3. That City Council hereby rezones the western half of the Property as
Residential Foothills (R-F) zone district and the eastern half of the Property as Low Density
Mixed-Use Neighborhood (LMN) as follows:
A north to south dividing line (“Dividing Line”) shall be established on the
Property with such line running parallel to and 1368.63 feet west of, as measured
perpendicularly, the eastern line of the southeast quarter of Section 20, Township
7 North, Range 69 West of the Sixth Principal Meridian, City of Fort Collins,
County of Larimer, State of Colorado. The portion of the Property located west
of the dividing line shall be designated as Residential Foothills Zone District and
the portion of the Property located east of the dividing line shall be designated as
Low Density Mixed-Use Neighborhood District (L-M-N).
Section 4. That Council imposes the following condition of approval upon this
rezoning pursuant to Land Use Code Section 2.9.4(I):
All residential development occurring on the portion of the Property zoned
Residential Foothills (R-F) shall be residential cluster development in compliance
with the version of Land Use Code Section 4.3(E)(2), Site Design for Residential
Cluster Development, in effect on the effective date of this Ordinance and attached
to this Ordinance as Exhibit “A”. However, any Land Use Code section or defined
term referenced within Land Use Code Section 4.3(E)(2) shall be to the version of
such section or defined term in effect at the time such section or defined term is
applied to any development application for any portion of the Property zoned
Residential Foothills.
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Packet Pg. 160
Attachment: Ordinance No. 138, 2019 (8460 : SR 138 Hughes Stadium Rezoning)
-3-
Section 5. That Council finds that the condition of approval imposed in above Section
4 is necessary to accomplish the purposes of the Land Use Code, specifically, Land Use Code
Section 1.2.2(A), (C), (D), (I), and (N), and is consistent with City Plan.
Section 6. That Council finds that the rezoning and condition of approval adopted
herein are in the best interests of the citizens of Fort Collins.
Section 7. That the Residential Neighborhood Sign District Map adopted pursuant to
Section 3.8.7(E)of the Land Use Code be, and the same hereby is, changed and amended by
showing that the above-described property is included in the Residential Neighborhood Sign
District.
Section 8. The City Manager is hereby authorized and directed to amend said Zoning
Map in accordance with this Ordinance.
Introduced, considered favorably on first reading, and ordered published this 5th day of
November, A.D. 2019, and to be presented for final passage on the 19th day of November, A.D.
2019.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
Passed and adopted on final reading on this 19th day of November, A.D. 2019.
__________________________________
Mayor
ATTEST:
_____________________________
City Clerk
8.b
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Attachment: Ordinance No. 138, 2019 (8460 : SR 138 Hughes Stadium Rezoning)
City of Fort Collins Page 1
Wade Troxell, President City Council Chambers
Kristin Stephens, District 4, Vice President City Hall West
Susan Gutowsky, District 1 300 LaPorte Avenue
Julie Pignataro, District 2 Fort Collins, Colorado
Ken Summers, District 3
Ross Cunniff, District 5 Cablecast on FCTV, Channel 14
Emily Gorgol, District 6 and Channel 881 on the Comcast cable system
Carrie Daggett Darin Atteberry Delynn Coldiron
City Attorney Executive Director Secretary
The City of Fort Collins will make reasonable accommodations for access to City services, programs, and activities
and will make special communication arrangements for persons with disabilities. Please call 221-6515 (V/TDD: Dial
711 for Relay Colorado) for assistance.
Electric Utility Enterprise Board Meeting
November 19, 2019
(after the Regular Council Meeting)
• CALL MEETING TO ORDER
1. Consideration and Approval of the Minutes from the September 17, 2019 Electric Utility Enterprise
Board Meeting.
The purpose of this item is to approve the minutes from the September 17, 2019 Electric Utility
Enterprise Board meeting.
2. First Reading of Ordinance No. 008, Amending its Ordinance No. 007 which Authorized a Loan
Agreement with U.S. Bank National Association to Provide Funding for the Epic Loan Program.
(staff: Travis Storin, Sean Carpenter; 5 minute staff presentation; 10 minute discussion)
The purpose of this item is to amend Ordinance No. 007 that the Electric Utility Enterprise Board
adopted on September 17, 2019, to authorize the Electric Utility Enterprise (Enterprise) to borrow up
to $2.5 million under a line of credit from U. S. Bank National Association (Bank) to use as additional
funding for the Utilities’ On-Bill Utility Financing Program. After the adoption of Ordinance No. 007,
the Bank proposed a modification to the terms of the Loan Agreement approved in Ordinance No.
007 (Loan Agreement).
Ordinance No. 008 is being brought forward for the Board’s consideration of this modification and
other minor modifications to the Loan Agreement. The modification requested by the Bank provides
that the Enterprise’s ability to exercise its fixed rate “term out” option is contingent upon the
Enterprise having a credit rating of BBB+ or higher. The Enterprise currently maintains a rating of
AA- and has a Council-adopted policy requiring a rating of A or higher. Staff assesses it highly
unlikely that the Enterprise’s credit rating will drop to BBB or lower within the 2-year variable draw
period.
• OTHER BUSINESS
• ADJOURNMENT
ELECTRIC UTILITY ENTERPRISE
BOARD
Agenda Item 1
Item # 1 Page 1
AGENDA ITEM SUMMARY November 19, 2019
Electric Utility Enterprise Board
STAFF
Delynn Coldiron, City Clerk
SUBJECT
Consideration and Approval of the Minutes from the September 17, 2019 Electric Utility Enterprise Board
Meeting.
EXECUTIVE SUMMARY
The purpose of this item is to approve the minutes from the September 17, 2019 Electric Utility Enterprise
Board meeting.
ATTACHMENTS
1. September 17, 2019 (PDF)
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City of Fort Collins Page 1
ELECTRIC UTILITY ENTERPRISE BOARD
September 17, 2019
11:05 PM
• CALL MEETING TO ORDER
PRESENT: Troxell, Cunniff, Stephens, Summers, Gutowsky, Pignataro, Gorgol
Staff Present: Atteberry, Daggett, Coldiron
1. Consideration and Approval of the Minutes of the September 3, 2019 Electric Utility Enterprise
Board Meeting. (Adopted)
The purpose of this item is to approve the minutes from the September 3, 2019 Electric Utility Enterprise
Board meeting.
Vice President Stephens made a motion, seconded by Boardmember Gorgol, to approve the
minutes of the September 3, 2019 meeting.
RESULT: ADOPTED [UNANIMOUS]
MOVER: Kristin Stephens, District 4
SECONDER: Susan Gutowsky, District 1
AYES: Troxell, Cunniff, Stephens, Summers, Gutowsky, Pignataro, Gorgol
2. Second Reading of Ordinance No. 007, Authorizing a Loan Agreement with U.S. Bank National
Association to Provide Funding for the Epic Loan Program. (Adopted on Second Reading)
This Ordinance, unanimously adopted on First Reading on September 3, 2019 authorizes the Enterprise to
borrow up to $2.5 million under a line of credit, from U. S. Bank (Bank) as additional funding for the On-Bill
Utility Financing Program. In 2012, the City Council established by ordinance the On-Bill Utility Financing
Program, which is now known as the Epic Loan Program (Program). The Program was established then
and has been operated since to assist customers of Fort Collins Utilities (Utilities) in financing home energy
efficiency, water efficiency and renewable energy improvements by making loans to customers who are
property owners (Epic Loans). Funds for these Epic Loans have come from reserves in the Light and Power
and Water funds ($1.6 million). The City has also recently been awarded grants for the Program from the
Colorado Energy Office ($200,000) and from Bloomberg Philanthropies ($688,350). At the September 17,
2019 Council meeting Second Reading of an Ordinance authorizing an increase for the current loan balance
available for the Program reflecting these funds and proposed borrowings will be considered.
City staff proposes that the Electric Utility Enterprise (Enterprise) borrow additional capital for the Program
from three different third-party lenders. This Ordinance authorizes the first of these borrowings. Pending
outside partner approval of the timeline, the other two borrowings will be brought forward for consideration
by the Electric Utility Enterprise Board on November 19, 2019 for First Reading and December 3, 2019 for
Second Reading.
Executive Director Atteberry commended the staff work on this item.
Vice President Stephens made a motion, seconded by Boardmember Summers, to adopt Ordinance
No. 007 on Second Reading.
Boardmember Cunniff commended the work on the item.
RESULT: ORDINANCE NO. 007 ADOPTED ON SECOND READING [UNANIMOUS]
MOVER: Kristin Stephens, District 4
SECONDER: Ken Summers, District 3
AYES: Troxell, Cunniff, Stephens, Summers, Gutowsky, Pignataro, Gorgol
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Attachment: September 17, 2019 (8473 : EUE-minutes 9/17)
City of Fort Collins Page 2
• OTHER BUSINESS
• ADJOURNMENT
The meeting adjourned at 11:08 PM.
______________________________
President
ATTEST:
_________________________________
Secretary
1.1
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Attachment: September 17, 2019 (8473 : EUE-minutes 9/17)
Agenda Item 2
Item # 2 Page 1
AGENDA ITEM SUMMARY November 19, 2019
Electric Utility Enterprise Board
STAFF
Terra Sampson, Project Manager, Energy Services
John Phelan, Energy Services Manager
Travis Storin, Accounting Director
Sean Carpenter, Climate Economy Advisor
John Duval, Legal
SUBJECT
First Reading of Ordinance No. 008, Amending its Ordinance No. 007 which Authorized a Loan Agreement
with U.S. Bank National Association to Provide Funding for the Epic Loan Program.
EXECUTIVE SUMMARY
The purpose of this item is to amend Ordinance No. 007 that the Electric Utility Enterprise Board adopted on
September 17, 2019, to authorize the Electric Utility Enterprise (Enterprise) to borrow up to $2.5 million under
a line of credit from U. S. Bank National Association (Bank) to use as additional funding for the Utilities’ On-Bill
Utility Financing Program. After the adoption of Ordinance No. 007, the Bank proposed a modification to the
terms of the Loan Agreement approved in Ordinance No. 007 (Loan Agreement).
Ordinance No. 008 is being brought forward for the Board’s consideration of this modification and other minor
modifications to the Loan Agreement. The modification requested by the Bank provides that the Enterprise’s
ability to exercise its fixed rate “term out” option is contingent upon the Enterprise having a credit rating of
BBB+ or higher. The Enterprise currently maintains a rating of AA- and has a Council-adopted policy requiring
a rating of A or higher. Staff assesses it highly unlikely that the Enterprise’s credit rating will drop to BBB or
lower within the 2-year variable draw period.
STAFF RECOMMENDATION
Staff recommends adoption of the Ordinance on First Reading.
BACKGROUND / DISCUSSION
Epic Homes
In October 2018, Fort Collins became a winner of the 2018 Bloomberg Mayors Challenge and the associated
$1M prize. The 2018 Bloomberg Mayors Challenge involved over 300 cities proposing ideas to address
important issues in their community. The City’s proposal, Epic Homes, was selected as a winner for its
innovative approach to providing health and equity benefits to residents, specifically for low-to-moderate
income renters, by improving the energy efficiency of rental homes. Residential property owners can take
advantage of Epic Homes’ easy streamlined steps to make their homes more comfortable, healthy and
efficient. Partnering with Colorado State University, Fort Collins is also establishing a research study which
links the health and wellbeing indicators of improved indoor environmental quality.
Epic Homes provides non-energy benefits in addition to efficiency, such as increased comfort, health and
safety. In nearly every energy assessment, energy advisors identify a health and safety hazard in need of
attention. This could vary from a back-drafting water heater, to air leakage pollutants entering the home from
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Agenda Item 2
Item # 2 Page 2
the garage or crawlspace, to combustion appliances that need tuning or replacing producing excess carbon
monoxide. For example, one energy advisor has shared a story of walking into a home for an energy
assessment and his personal safety monitor immediately going off from carbon monoxide levels because the
furnace had gone out and the household was using their oven for heat. Loans are available for over 25
different types of efficiency measures, including replacing an old furnace with a new efficient furnace that has
important safety features, such as sealed combustion with intake and exhaust to the outside.
Epic Loans
In 2012, the City Council established by ordinance the On-Bill Utility Financing Program, which is now known
as the Epic Loan Program (Program). The Program was established then and has been operated since to
assist customers of Fort Collins Utilities (Utilities) in financing home energy efficiency, water efficiency and
renewable energy improvements by making loans to customers who are property owners (Epic Loans). Funds
for these Epic Loans have come from reserves in the Light and Power and Water funds ($1.6 million). The City
has also recently been awarded grants for the Program from the Colorado Energy Office ($200,000) and from
Bloomberg Philanthropies ($688,350). In September 2019, Council adopted Ordinance 110 authorizing an
increase for the current loan balance available for the Program reflecting these funds and proposed
borrowings.
Fort Collins’ innovative On-Bill Finance (OBF) program (previously also known as Home Efficiency Loan
Program or Help and now called the Epic Loan Program), a component of the Epic Homes portfolio
(Attachment 1), supports a number of community and City Council priorities, including ambitious goals around
energy efficiency and renewables, reduced greenhouse gas emissions and increased equity and wellbeing of
all residents. Meeting these objectives will require, among other activities, greater numbers of property owners
to undertake comprehensive efficiency improvements in the coming years, particularly for older, less-efficient
rental properties which make up a significant percentage of the City’s housing stock. An ongoing and attractive
financing structure to support energy efficiency retrofits will be a critical element for success moving forward.
The original OBF program operated successfully from 2013 through 2016 when the maximum outstanding loan
balance funded through Light & Power reserves was reached. Epic Loans were revitalized in August 2018
during the Champions Phase of the Bloomberg Mayors Challenge using the $100,000 award from the
Champions Phase and a $200,000 grant from the Colorado Energy Office. To date, Fort Collins Utilities has
serviced 205 on-bill loans to support energy efficiency upgrades in residential homes and overcome financial
barriers for making these important upgrades.
Staff has been working to develop third-party capital agreements to scale impact for owners and renters in Fort
Collins. This has included presentations with the Council Finance Committee to discuss the Request for
Proposals for third-party capital providers, discuss the capital strategy and review proposed capital agreement
terms. Staff plans to bring more information about 15-year capital sources to Council Finance and the Electric
Utility Enterprise Board as loan agreements are further developed. The proposed ‘capital stack’ is provided in
Table 1 below and the customer interest rates based on third-party capital terms are provided in Table 2.
Table 1. Epic Loan Capital Stack Summary
Capital
Type
Provider Term Rate Amount
Internal &
Grant
Previously authorized Light &
Power reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office - Grant Grant 0% $200,000
Internal Subtotal $2,488,350
External
Market
Colorado Energy Office - Loan 15 year 0% Up to $800,000
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Agenda Item 2
Item # 2 Page 3
U. S. Bank 5 & 10
year
76% of Prime
(3.61% Currently)
Up to $2,500,000
In-State Commercial Bank 15 year 10-year US
Treasury + 2.75%
(4.50% Currently)
Up to $1,500,000
External Subtotal $4,800,000
Total $7,288,350
Table 2. Customer Interest Rate
Loan Term Customer Rate (Effective
Aug. 2019)
3 or 5 years 3.75%
7 or 10 years 4.25%
15 years 4.75%
U.S. Bank
The Bank responded to RFP #8842 issued in December 2018. Staff began discussions with the Bank in
January 2019 and have negotiated the following terms:
• Amount: Up to $2,500,000
• Length: 5-year and 10-year portions, inclusive of draw period
• Draw period: Up to 2 years with monthly draws based on customer loans
• Variable Rate Period: Taxable variable rate of 76% of Prime
• Fixed Rate: Up to four (4) conversions to Term Loan during the 2-year variable rate period (rate becomes
fixed after Term Loan conversion)
The Enterprise will pledge to the Bank, as security for payment of the loan, the Electric Utility’s revenues,
which will include the customers’ repayment of the Epic Loans. However, this pledge will be junior to the
current pledge given to the Connexion revenue bondholders. Finally, the Enterprise may pre-pay this loan with
the Bank in whole or in part at any time without penalty.
These terms and the loan agreement were adopted by the Electric Utility Enterprise Board in September 2019.
After adoption, the Bank required new language defining a minimum credit rating of BBB+ in order for the
Enterprise to utilize the Term Loan feature of the loan. The Electric Utility Enterprise has a current credit rating
of AA- and, by policy, must maintain a rating of A. Therefore, staff expects to be able to utilize the Term Loan
feature as intended in the original agreement. This modification is reflected in Attachment 4, a redlined
version of the Loan Agreement that shows the changes.
These and other terms are reflected in the Loan Agreement attached as Exhibit A to the Ordinance.
Policy Considerations
The City Debt Policy states that “The City will normally not issue variable rate debt … certain circumstances
may warrant the issuance of variable rate debt, but the City will attempt to stabilize the debt service payments
through the use of an appropriate stabilization arrangement.” The proposed 5- and 10-year facility with the
national commercial bank conforms to this existing policy because staff has arranged for Term Loan
conversion rights during the 2-year variable draw window which effectively stabilizes the debt service per
policy.
Third-Party Capital
In all third-party loan agreements, the Enterprise will be the borrower, with the third-party funds being loaned to
customers by Utilities. The Enterprise will be responsible for the repayment to the capital provider. In turn,
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Agenda Item 2
Item # 2 Page 4
Utilities customers carry the obligation for repayment of loans to the City via their utility bill. Utilities has various
code-specified tools for recourse of delinquent utility bills that makes the risk profile for the Epic Loan portfolio
extremely low. In fact, there have been zero loan defaults since OBF began in 2013.
CITY FINANCIAL IMPACTS
Staff projects the Epic Loan Program will be cashflow positive. Staff also projects the Ordinance under
consideration will meet the project demand for the next 4 years or more, for loans with a payback of up to 10
years. The 15-year external capital sources will be brought forward for Electric Utility Enterprise Board
consideration as the loan agreements are further developed.
The Ordinance is not anticipated to affect electric rates.
A variety of risks exist including variable interest rate exposure, customer demand risk, and customer default
risk. Customer default risk is considered de minimis based on lack of defaults over the 6-year history of the
Program and the default protections the City already has in place. Customer demand risk is difficult to assess,
but the line of credit model helps ensure that principal borrowed matches the Epic Loan volumes as closely as
possible.
To manage interest rate risk, staff built in Term Loan conversion and pre-pay options into the loan agreements,
incorporated a 1.0% spread between borrowed rates and customer rates, and performs regular reviews of
customer rates. In the event of extreme market interest rate activity or the portfolio going “upside-down”, the
City can exercise its term out (rate-lock) option and freeze new Epic Loan customer offerings, effectively
capping the exposure.
Core tenants of the Program are to ensure no negative impact on Light & Power planned debt offerings, and to
protect the Utilities credit rating and broadband coverage covenants.
BOARD / COMMISSION RECOMMENDATION
Third-party loan agreements and terms were discussed at the July 15, 2019 and August 19, 2019 Council
Finance Meetings (Attachments 2 and 3). Council Finance supported bringing forward the included
Ordinance for Electric Utility Enterprise Board consideration. Staff plans to bring more information about 15-
year capital sources to Council Finance and the Electric Utility Enterprise Board as loan agreements are
further developed.
ATTACHMENTS
1. Epic Homes Structure and Components Diagram (PDF)
2. Council Finance Meeting Minutes, July 15, 2019 (PDF)
3. Council Finance Meeting Minutes, August 19, 2019 (PDF)
4. US Bank Loan Agreement (redlined to show changes) (PDF)
5. Powerpoint presentation (PDF)
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ATTACHMENT 1
2.1
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Attachment: Epic Homes Structure and Components Diagram (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
5
Travis Storin; these are not cash accounts but are upstream from JDE - managing developer escrows to funds –
there is no interface built into the system, so the balancing activity is a manual activity (similar to balancing
checkbook)
Mike Beckstead; we will get a process defined and a cadence to that process put in place and the team will be
focused on this effort in 2019 – 20.
Chris Tilley; our recommendation is exactly as Mike Beckstead stated (analyze, clean up, reconciliation, no
impact)
Ross Cunniff; you mentioned that some smaller federal grants might never be audited - risk to city is much lower
but randomly picking one of them every year for auditing might be something to consider.
Chris Telli; we can look into doing that – they would never be required due to $750K threshold.
Programs that never reach that threshold typically don’t get to the point of requiring an audit.
ATION ITEM
Ross Cunniff; Do any of your other clients have whistle blower programs?
Chris Tilly; many clients have a fraud hotline in place which we highly recommend - it should be available to all
employees and to the community at large. There are many other vendors that offer this service in addition to
BKD.
Kelly DiMartino; we have an Ethics Hotline available to employees and citizens. It is promoted on our website.
Ross Cunniff; what about policies against retaliation?
Darin Atteberry; we have internal administrative policies around retaliation
ACTION ITEM:
Ross Cunniff; I would recommend we take this to Council as a Resolution given that we have a significant finding.
Mike Beckstead; we will get that scheduled and bring it forward to Council.
Kudos to BKD and to the Staff for a great working relationship.
B. Epic External Borrowing Terms / Details
Sean Carpenter, Lead Specialist, Economic Sustainability
Travis Storin, Director, Accounting
SUBJECT FOR DISCUSSION: Epic Homes Capital Plan - Update & Next Steps
EXECUTIVE SUMMARY
This item will provide an update to Council Finance regarding the Epic Homes capital plan and next steps for
capital agreements. Updates include:
Council Finance Committee July 15, 2019 Meeting Minutes
Excerpt: Epic External Borrowing Terms/ Details P. 5-12
ATTACHMENT 2
2.2
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Attachment: Council Finance Meeting Minutes, July 15, 2019 (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
6
• Review of on-bill financing history and capital recruitment process;
• Future capital stack;
• Loan terms and rates;
• Cash flow projections; and
• Next steps regarding securing and appropriation of third-party capital into a revolving loan fund.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
• Does the Council Finance Committee approve the presentation of financial / loan agreements to the full City
Council for consideration in August?
BACKGROUND/DISCUSSION
Fort Collins’ innovative On-Bill Finance (OBF) program supports a number of community and City Council
priorities, including ambitious goals around energy efficiency and renewables, reduced greenhouse gas
emissions and increased equity and wellbeing of all residents (see Energy Policy and Climate Action Plan).
Meeting these objectives will require, among other activities, that greater numbers of property owners
undertake comprehensive efficiency improvements in the coming years, particularly for older, less-efficient
rental properties which make up a large percentage of the City’s housing stock. An ongoing and attractive
financing structure to support energy efficiency retrofits will be a critical element for success moving forward.
On-Bill Financing History
The Home Efficiency Loan Program (HELP, aka OBF 1.0) operated successfully from January 2013 through early
2017 when the maximum outstanding loan balance of $1.6M was reached. In 2017, Elevations Credit Union was
selected through an RFP process for energy loan financing. Utilities staff qualify the efficiency project based on
the rebate measures in the Efficiency Works Home program; however, the loan origination and servicing are
independent of Utilities programs. With the implementation of Epic Loans, Elevations loans will continue to be
an option for interested customers.
Epic Loans (aka OBF 3.0) were revitalized in August 2018 during the Champions Phase of the Bloomberg Mayors
Challenge. The $100,000 award from the Champions Phase and a $200,000 grant from the Colorado Energy
Office were used to kick off the revitalized on-bill financing. Fort Collins is among nine winning cities for the
Mayor Challenge, each receiving $1 M to implement their winning idea. The grant agreement with Bloomberg
Philanthropies was completed in February 2019 and the initial $100,00 tranche of the $1M was awarded. As of
March 2019, Epic Loans has serviced over 20 on-bill loans for $280,000 to support energy efficiency retrofits that
would not have occurred without an attractive financing option.
Leveraging external capital is critical to achieving the long-term vision of Epic Loans and offers a continuing
source of funds to meet increasing customer demand for energy efficiency financing. Epic Loans is designed to
balance the programmatic objectives and financial requirements of the City, while also meeting the needs and
expectations of capital providers and Utilities customers. The program team seeks to design an “evergreen”
revolving loan fund which:
• Supports residential energy efficiency upgrades for years to come;
• Scales to meet long-term efficiency objectives;
• Removes financial barriers to efficiency upgrades with attractive rates and terms;
• Aligns capital commitments with customer loan terms; and
• Minimizes the City and Utilities risk and administrative effort.
ATTACHMENT 2
2.2
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Attachment: Council Finance Meeting Minutes, July 15, 2019 (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
7
Council Finance Meetings Review
The Epic Homes team presented to Council Finance in November 2018 regarding the program background and
issuing an RFP for third-party capital sources. The City issued RFP #8842 in December 2018 and the team
pursued conversations and negotiations with respondents and other potential capital providers.
The Epic Homes team presented to Council Finance again in May 2019 regarding the potential capital sources
and next steps for bringing capital agreements to Council. Staff have continued negotiations with potential
capital providers (including a locally managed national bank, a regional bank, Coalition for Green Capital, and the
Colorado Energy Office) and received Legal and Purchasing review of draft contracts.
Capital Stack and Terms
Capital sources for the Epic Loan need to align with the following high-level objectives:
• Attractive: The loan program must be able to provide attractive loan terms to customers, specifically
attractive interest rates.
• Scalable: The program must be scalable in support of Fort Collins ambitious energy goals. It is
anticipated that Fort Collins will upgrade thousands of homes in the coming years.
• Parity: In both length and rate, borrowed capital should match loaned capital as closely as possible.
• Simple: The implementation and administration of the program must be as simple as possible for all
parties, including customers, Utilities, and the capital partners.
Capital Stack
To provide sufficient financing for the expected number of projects, the short-term (3-4 year) capital goal is $7M
to $8M. This assumes $1.5M to $2M annually in energy efficiency project financing. The longer-term capital goal
is up to $16M in order to establish a self-sustaining revolving loan. To meet the short-term capital goal, the Epic
Homes team proposes the capital stack below.
Capital Type Provider Term Rate Amount Status
Low or No Cost
Bloomberg Philanthropies –
Champions Phase Award
N/A 0% $100,000 Appropriated July
2018
Bloomberg Philanthropies – Award
Initial Tranche
N/A 0% $100,000 Appropriated
March 2019
Bloomberg Philanthropies – Award
Second Tranche
N/A 0% $488,350 To be appropriated
August 20
Colorado Energy Office –Grant N/A 0% $200,000 Appropriated
August 2018
Colorado Energy Office – Loan 15 year 1-2% $1,000,000 To be appropriated
August 20
External Market
National Commercial Bank 5 & 10
year
3.95% -
4.25%
$2,500,000 To be appropriated
August 20
Regional Private Bank (through
National Green Bank)
15 year 5.75% $2,500,000 To be appropriated
August 20
Internal
Repayments of previously paid
loans
N/A 0% $374,000 Appropriated as
part of revolving
loan fund in OBF
1.0
Total $7,262,350
8
Flexible structures which minimize the need for the City to carry non-deployed debt capital, such as lines of
credit versus term loans, are being pursued with the capital providers. In all cases, Fort Collins Utilities would be
the borrower, with the third-party funds being loaned to customers by Utilities. Fort Collins Utilities would be
responsible for the repayment to the capital provider. In turn, Utilities customers carry the obligation for
repayment of loans to the City via their utility bill. Utilities has various code-specified tools for recourse of
delinquent utility bills that makes the risk profile for the Epic Loan portfolio extremely low. Third-party capital
providers will have a senior pledge on customer loan repayments and second position on Electric Utility
revenues, after the more senior pledge held by revenue bondholders. Finally, the City may pre-pay any of these
agreements in whole or in part at any time and without penalty.
Capital Source #1: Colorado Energy Office
• Amount: Up to $1,000,000
• Length: 15-years inclusive of draw period
• Draw period: None
• Fixed Rate: 1.25% to 2.25%
External Capital Source #2: National Commercial Bank
• Amount: Up to $2,500,000
• Length: 5-year and 10-year portions, inclusive of draw period
• Draw period: Up to 2 years with monthly draws based on customer loans
• Variable Rate Period: Fed SOFR plus X% (applies during draw period)
• Fixed Rate: 5-year or 10-year Treasury Note plus X% (rate becomes fixed after draw period)
External Capital Source #3: National Green Bank
• Amount: Up to $2,500,000
• Length: 15-years inclusive of draw period
• Draw period: Up to 2 years with quarterly draws based on customer loans
• Variable Rate: Wall Street Journal Prime + 0.25% (currently 5.75%)
• Collateral: City will deposit 50% of drawn amount into FDIC-insured account
Policy Exceptions
Source #2 and #3 each have terms that interact or conflict with Financial Policy #7.
Debt Instrument Policy Issue
Source #1: State Energy Office • None
Source #2: 5- and 10-year National
Commercial Bank
• Variable rate for 2 years, managed in 6-
month intervals
Source #3: 15-year National Green Bank • Credit Enhancement, and
• Variable Rate, or
• Derivative Swap instrument
For source #2 (5- and 10-year commercial funds), staff has arranged for rate-lock rights during the 2-year
variable draw window which effectively stabilizes the debt service per policy.
ATTACHMENT 2
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For source #3 (15-year green bank funds), staff assesses an appropriate use of a credit enhancement via the
collateral pledge.
The note is written with variable rate for its duration, however. Staff has attempted to negotiate rate lock-in
rights during the draw period, but the lender has been unable to flex. Alternatives are to accept the terms of this
deal, terminate the deal, or manage the variable rate risk via an interest rate swap. The swap would qualify as a
derivative instrument, which is also covered by policy as an instrument the City should avoid.
Retail Rates and Terms
In December 2018, the financial officer’s rules and regulations were revised to remove language about specific
interest rates and allows for regular review and necessary adjustments of interest rates based on third-party
capital terms, and approval of the City CFO. The City will blend capital sources and interest rates into loan
offerings that recover the cost of capital and include a modest administrative premium to cover administrative
costs in the future. The current loan interest rates interest rates based on capital sources are as follows:
Loan Term Interest Rate (Effective
Jan. 2019)
Interest Rate (Effective
Jul 2019)
3 or 5 years 3.49% 3.75%
7 or 10 years 3.99% 4.25%
15 years 4.49% 4.75%
Next Steps
The Epic Homes team is finalizing lending agreements with third-party capital providers. The Epic Homes team
seeks approval from Council Finance to proceed with City Council consideration of financial agreements during
the August 20 Council session. A separate ordinance will be prepared for each capital provider.
NEXT STEPS / DISCUSSION:
Mike Beckstead; policy consideration - some I would consider to be in a bit of a gray zone - we want to be clear -
we will be coming back to clarify consistency in terms with our current debit policy. Variable rates, slots.
There is one that is are looking for a 50% deposit of what we borrow as a credit enhancer which is a stretch to
our current policy and needs to be discussed. We pushed back hard, and they came back and said it is a
requirement to do this loan.
Sean Carpenter; we have heard consistently that trying to borrow money beyond 10 years will be difficult -
finding 15 year money has been a real challenge but it is important programmatically especially in the
Bloomberg project where we are targeting rental properties - HVACS - owners need that longer term to keep
payments lower.
Travis Storin; there are several interactions with policy and one outright exception - we will be very transparent
and upfront about any proposed policy exceptions when this is brought forward.
L&P reserves would fund it and would be restricted for the life of the contract and would become reserves we
can’t appropriate.
Variable Rate Debt – discouraged by not prohibited by policy - if we feel it is warranted.
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15 year money variable rate for life offered - we can terminate the deal if we needed to or modify our program
or product offerings to Epic loan customers or we can try to manage that risk with another instrument - variable
interest rate swap which is a derivative financial instrument and is to be avoided per policy - approach a
separate bank - the financial industry calls it a plain vanilla swap - fixed for variable rate trade. Low risk and
widely available.
Mike Beckstead; challenge to me is borrowing 15-year money at a variable rate and loaning it out at a fixed rate
is a bit of a non-starter from my perspective - that is where the swap came from – has some challenges but
might be better than doing nothing.
Ross Cunniff; access to larger pool of money - moves some of the risk to the lender - use our capital as collateral
3 different policy excursions from this same source - to get us a 15-year product it will cost us half of that total -
we could do 15-year terms but we would assume the risk
Mike Beckstead; we have the Council approved $1.6M of L&P reserves and of that amount $400K is still
available. Less attractive because it will take a while to get those funds paid back but using our money is an
option if we wanted to do that out of reserves and fund balance
Travis Storin; From a scalability perspective, we have gone at this from the view that the city cannot be the
banker long term - Staff assessment to date is that it is unattractive to use our own money to deploy loans
Darin Atteberry; what is the cost premium for the plain vanilla swap?
Travis Storin; currently it would be 25-50 basis points above the prevailing variable rate.
100 basis points of spread between our overall costs and the costs the consumer sees- this is not intended to be
money making. We previously offered a 20-year product, but we are not going to offer 20-year product in the
future.
Mike Beckstead; one of our tenets is we don’t borrow money for a shorter period than we loan money.
Ross Cunniff; 15-year loans would be for HVAC and largely for multi-family rental housing. Do we ask for any
collateral?
Travis Storin; UCC filing - right to shut off the utility - No defaults in 300 loans we have issued
Ross Cunniff; heading down the road of using our own capital – one of the considerations to mitigate our risk
Sean Carpenter; more comprehensive programs – folks also want that 15-year loan - Want to prove our
hypothesis – positive impacts from these upgrades / changes.
Variable draw period lines up with program parameters nicely
Mike Beckstead; we are thinking $1.5 - 2M a year in loans - Can we get an option for year 3 from the lenders if
we don’t draw at all or do we renegotiate a separate program in year 3 – our expectation is that we won’t use
$6M in a two year process - we will be 2/3 of that at best based on our historical loan rates - still some
ambiguity with what we do in year 3
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Mike Beckstead; August 20th is the design to put these in place in time to support the program - we are not
presuming Council Finance is going to support. That date is subject to this discussion.
Ken Summers; what is the largest amount we would loan in a 15-year time frame?
Sean Carpenter; $25K is the maximum loan amount - multi-unit apartment buildings, duplex / triplex / quad plex
- larger than that would be commercial. Average loan size is in the $11-12K range. Larger would include solar -
other features - solar companies - attractive financing
Ross Cunniff; heat pump type installation - solar which as an obvious payoff - solar companies are able to create
their own deals
Sean Carpenter; after almost a year of prototyping these with rental property owners, we learned that the
15 year was critical to get monthly payments down - to incentivize them to make these upgrades on older,
inefficient properties.
Ross Cunniff; I understand and support the analysis - I don’t know about question #3 - what is your
recommendation as of now?
Mike Beckstead; I haven’t had a chance to meet with Lance Smith to investigate implications - borrowing
variable and lending fixed is a non-starter for me so that is where the swap comes into play. 25-50 basis point
premium - that is a way to contain risk. Making sure we are not lending at low end of curve then locking in a
higher end. Our ability to adjust rates when we need to - Can’t borrow low and lend high
Action Item; Keep Option 3 separate – We have work to do to tighten up before 20th
Research on interest rate
Ross Cunniff; come back to Council Finance to discuss #3 (15-year product)
#1 and #2 sources can come forward on the 20th but let’s discuss #3 again at Council Finance (scheduled for
August 19th)
Darin Atteberry; A brief synopsis/read before would be helpful.
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Reappropriations shown in red address Ken’s question
Ross Cunniff; I assume new Council members know many of these funds are not mix and match
Mike Beckstead; yes, the color of money will be covered in our Council on Boarding later this week
Confirmed that there is a continency fund of $2.2M in case it is needed – inflation, etc. which we have not
touched.
Mayor Troxell; I am in support of where you are - you have done a great job of delicately teasing out and putting
togethe a proposal that makes sense.
E. Epic Program – Long Term Financing
Travis Storin, Director Accounting
Sean Carpenter, Lead Specialist, Economic Sustainability
SUBJECT FOR DISCUSSION: Epic Homes 15-year Capital Options
EXECUTIVE SUMMARY
This item will provide an update to Council Finance regarding the Epic Homes 15-year capital options and
discussion of each. Topics include:
• Review of capital recruitment process;
• Importance of 15-year capital in achieving desired program outcomes;
• 15-year capital options;
• Banking relationship with the national green bank; and
• Interest rate swap background.
GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED
• Does the Committee support funding a 15-year Epic Loan option?
• Which 15-year capital option does the Committee support?
• Does the Committee support staff analysis of the debt policy and the exception request if the variable-rate,
collateralized option is desired?
BACKGROUND/DISCUSSION
Fort Collins’ innovative Epic Homes portfolio supports several community and City Council priorities, including
ambitious goals around energy efficiency and renewables, reduced greenhouse gas emissions and increased
equity and wellbeing of all residents. Meeting these objectives will require, among other activities, greater
numbers of property owners to undertake comprehensive efficiency improvements in the coming years,
particularly for older, less-efficient rental properties which make up a large percentage of the City’s housing
stock. An ongoing and attractive financing structure to support energy efficiency retrofits will be a critical
element for success moving forward.
On-Bill Financing (OBF) 1.0 (also known as the Home Efficiency Loan Program or HELP) operated successfully
from 2013 through 2016 when the encumbered funds reached the maximum outstanding loan balance of
$1.6M. At that time, Elevations Credit Union was selected through an RFP process to continue HELP for energy
Council Finance Committee August 19, 2019 Meeting Minutes
Excerpt: Epic Program - Long Term Financing/ Details P. 20-28
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loan financing. Utilities staff qualify the efficiency project based on the rebate measures in the Efficiency Works
Home program; however, the loan origination and servicing are independent of Utilities programs. With the
implementation of Epic Loans, Elevations loans will continue to be an option for interested customers.
Epic Loans began in August 2018 during the Champions Phase of the Bloomberg Mayors Challenge, using the
$100,000 award from the Champions Phase and a $200,000 grant from the Colorado Energy Office (CEO) to
revitalize on-bill financing. Fort Collins is among nine winning cities for the Mayors Challenge, each receiving
$1M to implement their winning idea.
Leveraging external capital is critical to achieving the long-term “revolving loan” vision of Epic Loans and offers a
continuing source of funds to meet increasing customer demand for energy efficiency financing. Epic Loans is
designed to balance the programmatic objectives and financial requirements of the City, while also meeting the
needs and expectations of capital providers and Utilities customers.
Council Finance Meetings Review
Staff presented to Council Finance in November 2018 regarding the program background and issuing an RFP for
third-party capital sources. The City issued RFP #8842 in December 2018 and staff pursued conversations and
negotiations with respondents and other potential capital providers.
Staff presented to Council Finance in May 2019 regarding the potential capital sources and next steps for
bringing capital agreements to Council. Staff have continued negotiations with potential capital providers
(including a locally managed national bank, a regional bank, Colorado Clean Energy Fund, and the CEO) and
received Legal and Purchasing review of draft contracts.
Staff presented to Council Finance in July 2019 regarding capital agreement terms. Staff was directed to bring
two of the three capital sources to full Council for consideration. Staff was also directed to explore 15-year
capital options and provide additional information on interest rate swaps to Council Finance.
Importance of 15-year Capital
During prototyping for the Bloomberg Mayors Challenge competition, rental property owners reported that no
money down, affordable monthly payments are critical considerations, in particular for owners with multiple
units. OBF 1.0 proved these factors are also important for owner-occupied properties, where many homeowners
preferred longer term loans which often allow for more comprehensive projects and /or solar installations with
affordable monthly payments. In 2016, Fort Collins Utilities implemented the Efficiency Works Neighborhood
pilot, with nearly 60 long term loans issued totaling over $750,000. An additional $1.5M in 15-year capital for
Epic Loans would support approximately120 similar projects.
Throughout the program history (2013-2019, including Elevations Credit Union loans), 35% of customers have
used longer loan terms to reduce monthly payments and / or undertake more comprehensive energy efficiency
projects. As a result, the longer-termed loans account for a larger percentage of the total loan portfolio value, at
45%. When looking specifically at on-bill financed loans (2013-2016 and 2018-2019), nearly 50% of customers
have used longer term loans (Table 1), accounting for approximately 60% of the on-bill financed loan portfolio
value. In short, longer term loans are generally used for bigger, more comprehensive projects that can generate
increased benefits for the people who live in and / or own those homes, as well as positively impacting overall
City goals.
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Table 1. Summary of On-Bill Financed Projects by Loan Term
3- & 5-year loans 7- & 10-year loans 15 (& 20) year loans
Projects 38 65 95
Percentage 19% 33% 48%
In order to keep monthly payments low and make energy retrofit projects attractive, longer loan terms are
required. With a 15-year loan at the average long-term loan amount of $13,000, monthly payments are $101.
These attractive monthly payments are critical for overcoming both upfront cost and continual cost barriers for
home and rental property owners considering energy upgrades.
15-year Capital Options
Per Council Finance request, staff has identified the following four options for 15-year capital:
1. Pursue an agreement with the national green bank for up to $2.5M with the required 50% deposit and
use an interest rate swap to stabilize variable rates (This is the staff recommendation.)
2. Use L&P Reserves to fund $1.5M, in addition to the current $1.6M that is currently deployed or has been
repaid
3. Use only the 15-year funding available from CEO, Bloomberg, and repaid L&P Reserves
4. Implement a hybrid of Options 2 and 3, using L&P Reserves to provide backfill demand once other
Option 3 sources are exhausted
To provide sufficient financing for the expected number of projects, the short-term (3-4 year) capital goal is $7M
to $8M. This assumes $1.5M to $2M annually in energy efficiency project financing. As staff has outlined,
sufficient 15-year capital is critical to the success of the overall program.
Option 1: National Green Bank
Staff has been in discussions with a national green bank to negotiate 15-year loan terms, which were presented
and discussed at the July 15, 2019 Council Finance meeting. The terms include:
• Amount: Up to $2,500,000 (staff expects to only draw $1,500,000)
• Length: 15-years inclusive of draw period
• Draw period: Up to 2 years with quarterly draws based on customer loans
• Variable rate: Wall Street Journal Prime + 0.25% (currently 5.50%)
• Collateral: City will deposit 50% of drawn amount into interest bearing account from L&P Reserves
(staff expects $750,000 deposit)
• Pre-pay: City may pre-pay in whole or in part at any time and without penalty
• Repayment position: Senior pledge on customer loan repayments and second position on Electric
Utility revenues, after the more senior pledge held by revenue bondholders
Banking Relationship
Staff issued RFP #8842 in December 2018, to which the Colorado Green Energy Fund was one of two
respondents. The Colorado Green Energy Fund has found and managed the relationship with a financier willing
to provide 15-year terms (Figure 1). If this option is selected, Fort Collins Utilities would borrow from the
Colorado Green Energy Fund.
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Figure 1. Banking Relationship with the Colorado Green Energy Fund and Commercial Bank
Policy Interactions
This Option has two interactions with Financial Policy #7 - Debt.
The first interaction is the required 50% collateral, or credit enhancement. Staff assesses an appropriate use of a
credit enhancement via the collateral pledge.
The second interaction is the variable rate and/or derivative swap instrument. The proposed lender is offering a
variable interest rate for the loan duration. Staff has attempted to negotiate rate lock-in rights during the draw
period, but the lender has been unable to flex. An alternative is to use an interest rate swap, which would
qualify as a derivative instrument and is covered by policy as an instrument the City should avoid. Staff assesses
a “plain vanilla” interest swap is a feasible solution, although it carries a cost premium, but it would effectively
“lock in” a fixed rate on the 15-year note if City is unwilling to accept variable rate risk.
Interest Rate Swap
Interest rate swaps are a common financial instrument, used by a wide variety of businesses to manage their
debt service payments in a manner that best suits their organizational needs. For some entities, variable rates
are preferred; for others, fixed rate obligations are best. In this option, the City would negotiate with another
party (who prefers a variable rate interest obligation) and the City would exchange the variable rate obligation
under the proposed loan with the national green bank (Option 1) for the swap party’s fixed rate instrument
(Figure 2), using well established markets / providers for these types of financial transactions. The swap would
be based on the notional principal, and only the netted difference between fixed and variable interest rate
amounts is paid. The interest swap party would also agree to a settlement cadence.
Figure 2. Example of Cash Flows of Interest Rate Swap
•Midwest Commercial
Bank providing 15-
year capital
Financier
•Colorado Green
Energy Fund
managing relationship
and finding financiers
(RFP respondent)
Broker •Fort Collins Utilities
borrowing from green
bank and issuing
loans to customers
Fort Collins
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Option 2: Light & Power Reserves
Currently, $1.6M of L&P Reserves have been deployed for on-bill financing since 2013, of which nearly $400,000
have been repaid without any losses to date. Option 2 would dedicate an additional $1.5M of L&P Reserves for
15-year loans. Available Reserves at the end of 2018 were $8.4M. Anticipated 2019-20 budget changes include a
2019 drawdown on Reserves by $340K and a 2020 increase on Reserves by $320K. The Capital Improvement
Plan will be updated in Fall 2019, prior to updating the Strategic Financial Plans for a November 2019
presentation to Council Finance.
There is no anticipated need to increase electric rates for a one-time $1.5M appropriation of Reserves. However,
appropriating L&P Reserves for use in Epic Loans will make those funds unavailable for use in other future
capital projects, until such time that those funds are repaid by Epic Loan customers.
Option 3: 15-year Funding from Grants and Low-Cost Capital Only
There are currently other sources of limited 15-year capital, which include:
• Up to $1M low-cost loan from CEO dedicated to 15-year projects (to be presented to Council on
September 3, 2019)
• Re-allocation of up to $900K from Bloomberg and CEO grant funds, away from 5-year and 10-year
projects
Without external or Reserve financing, the full capital stack across all product offerings will support
approximately 130 fewer home upgrades for each “cycle” of the loan portfolio (e.g. each time the capital is lent,
repaid and therefore available to be re-loaned), or approximately 370 projects versus an estimated 500 projects.
In this Option, the capital burn rate would be 1 to 1.5 years faster.
Option 4: Hybrid of Options 2 & 3 Using L&P Reserves After Other Sources Exhausted
A final Option is to use the 15-year capital sources outlined in Option 3 above and use L&P Reserves
once all other sources have been exhausted.
15-year Capital Option Analysis
Staff analysis of the benefits and challenges for each Option is outlined in Table 2. If supported by Council
Finance, staff recommends bringing Option 1 to full Council for consideration on October 1, 2019.
Table 2. Analysis of 15-year Capital Options
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Option Benefits Challenges
Option 1:
National Green
Bank (staff
recommendation)
• Provides sufficient funding for
expected 15-year projects
• Scalable for the long-term, and
replicable for other cities
• Only market capital provider willing
to provide 15-year terms, all other
market capital providers will not go
over 10-year terms
• Requires a 50% deposit into an
interest-bearing account from L&P
Reserves
• Requires a policy exception to use an
interest rate swap
• Contingent on other low-cost capital
sources to provide an attractive rate
for customers
Option 2: Light &
Power Reserves
• Provides easy access to low-cost
capital
• Impacts the opportunity costs of
other important Utilities needs
• Not scalable for long-term, or
replicable for other cities
Option 3: 15-year
Funding from
Grants and Low-
Cost Capital Only
• No additional capital agreements
needed (after CEO loan presented
to full Council)
• Does not provide sufficient funding
for expected 15-year projects
• Not scalable for long-term
• Removes low-cost capital from 5-year
and 10-year loans for blending to
create attractive customer rates
Option 4: Hybrid
of Options 2 & 3
Using L&P
Reserves After
Other Sources
Exhausted
• No additional capital agreements
needed (after CEO loan presented
to full Council)
• Not scalable for long-term, or
replicable for other cities
• Removes low-cost capital from 5-year
and 10-year loans for blending to
create attractive customer rates
• Impacts the opportunity costs of
other important Utilities needs
Next Steps
26
Travis Storin; credibility of the institution - that is a key element as we go shop for this
Will have to be one of the large multi-national banks we are targeting to take on this risk.
They do have the risk of defaulting - it is a possibility and deliberate vendor selection is our mitigating measure.
Ross Cunniff; if the economy tanked, we could decide to not engage or draw the full amount, right?
Travis Storin; yes, the notional amount is going to be whatever we have drawn - we will have a draw period on
the facility and only swap the amount we have drawn not the full amount -
Ross Cunniff; still some risk - the advantage to program and to businesses that cannot make the cash flow work
Are powerful to me along with the ability to make this a sustainable proposition. My concern is I would not want
to make this a standing change to policy - I would want to make it a case by case basis – so would need to be
very narrowly tailored for this circumstance - vitally important program. I am supportive of moving forward -
we need to be careful sending the message – I don’t want us to be used as part of a portfolio
This is really a special case - Fort Collins is not going to be a variable interest player - bigger picture policy
perspective
Mike Beckstead; staff is very much aligned with that - This is an exception specific to version 3.0. If we find this
works and would want to do it again - we would need to come back to Council and share our experience for 4.0 -
we view this is a one-time event as well.
Mayor Troxell; I would agree - let’s keep it as a one-time exception
Option 1 with the National Green Bank is my preference.
Question – with the interest rate swap how does the deposit play into that?
Travis Storin; the deposit scales with what we draw at a rate of 50% - according to policy we are only to do this
when we run an NPV and this is still beneficial to City of Fort Collins. In this case there is really not an NPV to run
- more a deal or no deal – we are working with Lance Smith and we have determined that it is up to $750K
earmark on reserves which would go into an interest bearing account - Comparable rates to a money market -
when we prepay or it matures, we would get those funds back
Sean Carpenter; The max loan amount would be $25K - we have not issued any loans that large to date
The average loan amount is currently $14K so we anticipate $10-14K will be the range for the vast amount of
these projects over 5, 10 or 15-year terms
Mike Beckstead: the consumer chooses the term based on the value of the energy efficiency they want to put
into their properties – the savings from the improvements are hard to realize over a shorter term - which
impacts their cashflow
Ken Summers: how many loans are we anticipating?
Travis Storin; our peak year was 2016 where we did 110 loans
Ken Summers; what happens if they default? Concerned about someone needing to borrow that amount over
such a long term
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Mike Beckstead; we would have a lien on the house but our experience to date in the 4-5 years of this program
is that we have not had a single delinquent loan - part of that is the nature of what people are borrowing for –
they know with the lien in place that if they do sell we will get our piece.
Darin Atteberry; projects like new windows, furnaces, major capital equipment
Ross Cunniff; we are targeting certain types of projects that typically pay back similar or higher value on their
energy bill to what they are paying - that is probably also why you would want to get the monthly cost down.
Travis Storin; one of our iterations was a strictly 3rd party bank that they would go to as a qualified borrower –
with much the same amount of rigor as a mortgage – not serviced on the bill so the protections were different –
the demand for that product has been pretty limited - people like being able to pay it on their utility bill the on-
bill portion is a positive.
Ken Summers; we are talking about modifying policy and additional risk – I am concerned on the trade-off
standpoint
Mike Beckstead; might be helpful is we zoom out to 10K feet and provide some context - we started this
program in 1012 using $800K from L&P reserves as the funding source for the loans and in 2014 Council
approved another $800K for additional loans -revolving. Currently there is $1.8M in reserves available for these
loans - we can’t continue to use that funding methodology and make the volume of energy efficiency changes
we want to make in our community so we turned to how to use 3rd party capital - we went to version 2.0 with a
local credit union but when we did that the number of loans tanked dramatically. Now we are at version 3.0
where we are trying to figure out how to get a competitive capital stack across 3 different terms providing home
energy efficiencies that would not happen without this type of financing - a little bit of history on how we came
to this point. Our goal has been to figure out how we can use 3rd party capital as opposed to using our own
capital which comes with some risk.
Travis Storin; This is one component of the greater energy works portfolio - of the energy efficiency
improvements that are made - loans account for 25% of the expenditure and 15-year loans count for 50% of
loans and for 60% of the dollars
80% of those who used 10-15 year terms and on-bill financing said that they would not have done it without the
10 or 15 year terms.
Mayor Troxell; this is a model - some other municipalities are looking to us -
Sean Carpenter; that is right - some of the support we are not talking about today includes the $200K grant we
received from the Colorado Energy Office – in the hopes that we can create a ‘cookbook’ to help other
communities replicate this in Colorado and elsewhere.
Travis Storin; the low cost capital is a critical success factor- for every loan 2/3 of the loan amount comes from a
market driven source
Mike Beckstead; To summarize, there are some questions and concerns, some things in the AIS that we will
want to clarify. But I believe we have the direction to bring this forward to Council on October 1st
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Ken Summers; to do 15 years – we will need to make a policy exception and take on more risk I am trying to get
a handle on year 11-15 – as opposed to years 1-10 and the impact
Mike Beckstead; the consumer is making the choice – we are just providing the alternatives to match the savings
of the investment, the energy efficiency benefits and their cashflow
Meeting adjourned at 11:56 am
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BUTLER SNOW DRAFT 811/286/2019
LOAN AGREEMENT
by and between
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
and
U.S. BANK NATIONAL ASSOCIATION
Relating to:
Not to exceed $2,500,000 2019 Taxable Subordinate Lien Revenue Note
Dated as of [Closing Date], 2019
ATTACHMENT 4
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TABLE OF CONTENTS
Page
i
ARTICLE I DEFINITIONS ............................................................................................................2
ARTICLE II LOAN .........................................................................................................................7
Section 2.01. Loan. ..................................................................................................................7
Section 2.02. Interest Rate; Interest Payments; Principal Payments. ......................................8
Section 2.03. Costs, Expenses and Taxes ..............................................................................10
Section 2.04. Pledge ...............................................................................................................11
Section 2.05. Conditions to Closing ......................................................................................11
Section 2.06. Procedure for Requesting and Funding Advances. ..........................................12
Section 2.07. Conversion to Term Loan ................................................................................13
ARTICLE III FUNDS AND ACCOUNTS ...................................................................................14
Section 3.01. Light and Power Fund ......................................................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE ...............14
Section 4.01. Due Organization .............................................................................................14
Section 4.02. Power and Authorization .................................................................................14
Section 4.03. No Legal Bar ....................................................................................................14
Section 4.04. Consents ...........................................................................................................14
Section 4.05. Litigation ..........................................................................................................15
Section 4.06. Enforceability ...................................................................................................15
Section 4.07. Changes in Law ................................................................................................15
Section 4.08. Financial Information and Statements .............................................................15
Section 4.09. Accuracy of Information ..................................................................................15
Section 4.10. Financing Documents ......................................................................................15
Section 4.11. Regulations U and X ........................................................................................15
Section 4.12. Default, Etc ......................................................................................................16
Section 4.13. Sovereign Immunity.........................................................................................16
Section 4.14. No Filings.........................................................................................................16
Section 4.15. Outstanding Debt .............................................................................................16
ARTICLE V COVENANTS OF THE ENTERPRISE ..................................................................16
Section 5.01. Performance of Covenants, Authority .............................................................16
Section 5.02. Contractual Obligations ...................................................................................17
Section 5.03. Further Assurances...........................................................................................17
Section 5.04. Conditions Precedent .......................................................................................17
Section 5.05. Rules, Regulations and Other Details. .............................................................17
Section 5.06. Payment of Governmental Charges .................................................................17
Section 5.07. Protection of Security ......................................................................................18
Section 5.08. Prompt Payment ...............................................................................................18
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Section 5.09. Use of Funds and Accounts .............................................................................18
Section 5.10. Other Liens.......................................................................................................18
Section 5.11. Reasonable and Adequate Charges ..................................................................18
Section 5.12. Adequacy and Applicability of Charges ..........................................................18
Section 5.13. Limitations Upon Free Service ........................................................................19
Section 5.14. Collection of Charges ......................................................................................19
Section 5.15. Maintenance of Records ..................................................................................19
Section 5.16. Accounting Principles ......................................................................................19
Section 5.17. Laws, Permits and Obligations ........................................................................19
Section 5.18. Bonding and Insurance ....................................................................................19
Section 5.19. Other Liabilities ...............................................................................................19
Section 5.20. Proper Books and Records ...............................................................................19
Section 5.21. Reporting Requirements. .................................................................................20
Section 5.22. Visitation and Examination..............................................................................20
Section 5.23. Additional Debt ................................................................................................20
ARTICLE VI INVESTMENTS .....................................................................................................21
Section 6.01. Permitted Investments Only .............................................................................21
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ........................................................21
Section 7.01. Events of Default .............................................................................................21
Section 7.02. Remedies ..........................................................................................................22
Section 7.03. Notice to Bank of Default ................................................................................23
Section 7.04. Additional Bank Rights ....................................................................................23
Section 7.05. Delay or Omission No Waiver .........................................................................23
Section 7.06. No Waiver of One Default to Affect Another; All Remedies Cumulative ......23
Section 7.07. Other Remedies ................................................................................................23
ARTICLE VIII MISCELLANEOUS ............................................................................................23
Section 8.01. Loan Agreement and Relationship to Other Documents .................................23
Section 8.02. Assignments, Participations, etc. by the Bank .................................................23
Section 8.03. Notices .............................................................................................................23
Section 8.04. Payments ..........................................................................................................24
Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability ........................24
Section 8.06. Copies; Entire Agreement; Modification .........................................................24
Section 8.07. Waiver of Jury Trial .........................................................................................25
Section 8.08. Attachments .....................................................................................................25
Section 8.09. No Recourse Against Officers and Agents ......................................................25
Section 8.10. Conclusive Recital ...........................................................................................25
Section 8.11. Limitation of Actions .......................................................................................25
Section 8.12. Pledge of Revenues ..........................................................................................25
Section 8.13. No Liability ......................................................................................................26
Section 8.14. No Waiver; Modifications in Writing ..............................................................26
Section 8.15. Payment on Non-Business Days ......................................................................26
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Section 8.16. Execution in Counterparts; Electronic Storage ................................................26
Section 8.17. Severability ......................................................................................................27
Section 8.18. Headings ..........................................................................................................27
Section 8.19. Waiver of Rules of Construction .....................................................................27
Section 8.20. Integration ........................................................................................................27
Section 8.21. Termination of Agreement ...............................................................................27
EXHIBIT A FORM OF 2019 NOTE ................................................................................ A-1
EXHIBIT B FORM OF ADVANCE REQUEST ..............................................................B-1
EXHIBIT C FORM OF CONVERSION NOTICE ............................................................C-1
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of [Closing
Date], 2019, by and between CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (the “Enterprise”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, in its capacity as lender (the “Bank”).
W I T N E S S E T H :
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and existing
home rule municipality of the State of Colorado, created and operating pursuant to Article XX of
the Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that the
Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise of the
City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the Utility
as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of the Code
of the City of Fort Collins (“Section 26-392”); and
WHEREAS, pursuant to Section 19.3(b) and Section 26-392, the Council has authorized
the Enterprise, by and through the Council, sitting as the board of the Enterprise (the “Board”), to
issue revenue and refunding securities and other debt; and
WHEREAS, the Enterprise has established a program (the “Epic Program”) to assist certain
customers of the Utility in financing home energy efficiency and renewable energy improvements
by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the “Project”),
it is necessary and advisable and in the best interests of the Enterprise (i) to enter into this
Agreement with the Bank pursuant to which the Bank shall loan the Enterprise an amount of not
to exceed $2,500,000 (the “Loan”) for such purposes, and (ii) to issue a promissory note (the
“Note”) to the Bank to evidence the Enterprise’s repayment obligations under this Agreement; and
WHEREAS, the Enterprise has previously issued its “City of Fort Collins, Colorado,
Electric Utility Enterprise, Tax-Exempt Revenue Bonds, Series 2018A” (the “2018A Bonds”) and
its “City of Fort Collins, Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series
2018B” (the “2018B Bonds” and, together with the 2018A Bonds, the “2018 Bonds”) which are
payable from a secured by a lien on the Net Pledged Revenues (as herein defined); and
WHEREAS, except for the 2018 Bonds, neither the City nor the Enterprise has pledged or
hypothecated the Gross Net Pledged Revenues (as herein defined) to the payment of any bonds or
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for any other purpose, with the result that the Net Pledged Revenues may now be pledged lawfully
and irrevocably to the payment of the Loan which pledge will be subordinate to the pledge of Net
Pledged Revenues to the payment of the 2018 Bonds; and
WHEREAS, the Bank is willing to enter into this Agreement and to make the Loan to the
Enterprise pursuant to the terms and conditions stated below; and
WHEREAS, the Loan shall be payable from and secured by the Net Pledged Revenues as
more fully set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
Words and terms defined in the recitals hereof, as hereby supplemented and amended, shall
have the same meanings herein or therein assigned to them, unless the context or use indicates
another meaning or intent, and except to the extent amended by the definitions hereinafter set forth.
In addition, the following terms shall have the meanings set forth herein:
“2018 Bond Ordinance” means the ordinance of the Enterprise which provides for the
issuance and delivery of the 2018A Bonds and 2018B Bonds.
“2018A Bonds” means the Enterprise’s Tax-Exempt Revenue Bonds, Series 2018A.
“2018B Bonds” means the Enterprise’s Taxable Revenue Bonds, Series 2018B.
“2019 Note” or “Note” means the City of Fort Collins, Colorado, Electric Utility
Enterprise not to exceed $2,500,000 2019 Taxable Subordinate Lien Revenue Note evidencing the
Loan from the Enterprise, as maker, to the Bank, as payee.
“Advance” means a disbursement of proceeds of the Unfunded Portion of the Loan
pursuant to the terms hereof.
“Advance Maturity Date” means the second anniversary of the Closing Date.
“Advance Period” means the period commencing on the date of the Closing Date and
terminating on the second anniversary of the Closing Date unless terminated or extended as
provided herein.
“Advance Termination Date” means the earlier to occur of (a) the Full Funding Date; (b)
the date which is the last day of the Advance Period or (c) a date determined by the Enterprise and
provided in writing to the Bank.
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“Authorized Person” means the President of the Enterprise or the Treasurer of the
Enterprise and also means any other individual authorized by the TreasurerPresident to act as an
Authorized Person hereunder.
“Authorizing Ordinance” means the Ordinance adopted by the Board on September 17,
2019 authorizing the Enterprise to finance the Project, enter into the Loan and execute and deliver
the Note, this Agreement, and the other Financing Documents.
“Bank” means U.S. Bank National Association, a national banking association, in its
capacity as lender of the Loan.
“Business Day” means any day of the week on which the Bank is conducting its banking
operations nationally and on which day the Bank’s offices are open for business in Denver,
Colorado.
“Capital Improvements” means the acquisition of land, easements, facilities, and
equipment (other than ordinary repairs and replacements), and those property improvements or
any combination of property improvements which will constitute enlargements, extensions or
betterments to the System and will be incorporated into the System.
“Closing” means the date of the execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto.
“Closing Date” means date of the Closing for the Loan.
“Conversion Notice” means a notice of a conversion pursuant to Sections 2.07, which shall
be substantially in the form of Exhibit C.
“Cost of Funds” means the rate at which Bank would be able to borrow funds of
comparable amounts in the Money Markets for a period equal to the term of a Term Loan, adjusted
for any reserve requirement and any subsequent costs arising from a change in government
regulation; such rate rounded up to the nearest one-eighth percent.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt” means, without duplication, all of the following obligations of the Enterprise for
the payment of which the Enterprise has promised or is required to pay from the Net Pledged
Revenues: (a) borrowed money of any kind; (b) obligations evidenced by bonds, debentures, notes
or similar instruments; (c) obligations upon which interest charges are customarily paid; (d)
obligations arising from guarantees made by the Enterprise; (e) obligations as an account party in
respect of letters of credit and bankers’ acceptances or similar obligations issued in respect of the
Enterprise; and (f) obligations evidenced by any interest rate exchange agreement; provided that
notwithstanding the foregoing, the term “Debt” does not include obligations issued for any
purpose, the repayment of which is contingent upon the Enterprise’s annual determination to
appropriate moneys therefore.
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“Default Interest Rate” means a rate per annum equal to the greater of the Interest Rate
plus 3% or the Maximum Rate.
“Electronic Notification” means telecopy, facsimile transmissions, email transmissions
or other similar electronic means of communication providing evidence of transmission.
“Event of Default” has the meaning set forth in Section 7.01 hereof.
“Financing Documents” means this Agreement, the Note, the Authorizing Ordinance, and
any other document or instrument required or stated to be delivered hereunder or thereunder, all
in form and substance satisfactory to the Bank.
“Fiscal Year” means the 12 months commencing January 1 of any year and ending
December 31 of such year.
“Full Funding Date” means the date on which, if at all, the aggregate amount of all
Advances equals the Maximum Advance Amount.
“Gross Pledged Revenues” means all rates, fees, charges and revenues derived directly or
indirectly by the City from the operation and use of and otherwise pertaining to the System, or any
part thereof, whether resulting from Capital Improvements or otherwise, and includes all rates,
fees, charges and revenues received by the City from the System, including without limitation:
(i) All rates, fees and other charges for the use of the System, or for any service
rendered by the City or the Enterprise in the operation thereof, directly or indirectly, the availability
of any such service, or the sale or other disposal of any commodities derived therefrom, including,
without limitation, connection charges, but:
(a) Excluding any moneys borrowed and used for the acquisition of Capital
Improvements or for the refunding of securities, and all income or other gain from any investment
of such borrowed moneys; and
(b) Excluding any moneys received as grants, appropriations or gifts from the Federal
Government, the State, or other sources, the use of which is limited by the grantor or donor to the
construction of Capital Improvements, 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; and
(ii) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged Revenues,
but excluding borrowed moneys and all income or other gain thereon in any project fund,
construction fund, reserve fund, or any escrow fund for any Parity Bonds payable from Net
Pledged Revenues heretofore or hereafter issued and excluding any unrealized gains or losses on
any investment of Gross Pledged Revenues); and
(iii) All income and revenues derived from the operation of any other utility or other
income-producing facilities added to the System and to which the pledge and lien herein provided
are lawfully extended by the Board or by the qualified electors of the City; and
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(iv) All revenues which the Enterprise receives from the repayment of Epic Loans.
“Initial Advance” means the first Advance made by the Bank to the Enterprise pursuant to
Section 2.06 hereof.
“Interest Payment Date” means, for Advances, the first Business Day of each month,
commencing the first such day occurring after the Initial Advance, and continuing through and
including the Advance Maturity Date and, for Term Loans, the first Business Day of each month,
commencing the first such day occurring after an Advance has been converted to a Term Loan
continuing through and including the Term Loan Maturity Date.
“Interest Rate” means for Advances, a variable rate of interest equal to 76% of the Prime
Rate, and for Term Loans, a fixed rate of interest determined on the date an Advance converts to
a Term Loan pursuant to Section 2.07 hereof.
“Light and Power Fund” means the special fund of that name heretofore created by the
City pursuant to Section 8-77 of the Code of the City of Fort Collins .
“Loan” means all Advances and Term Loans.
“Loan Amount” means, with respect to the Loan, a maximum amount of Two Million Five
Hundred Thousand and 00/100 U.S. Dollars ($2,500,000), or such lesser amount that has been
Advanced by the Bank from time to time in accordance with the terms and provisions of this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, property,
liabilities (actual and contingent), operations or condition (financial or otherwise), results of
operations, or prospects of the Enterprise taken as a whole, (b) the ability of the Enterprise to
perform its obligation under this Agreement, or (c) the validity or enforceability of this Agreement
or the rights or remedies of the Bank under this Agreement.
“Maturity Date” means for Advances the Advance Maturity Date and for Term Loans the
Term Loan Maturity Date.
“Maximum Advance Amount” means, with respect to the 2019 Note, $2,500,000.
“Maximum Rate” has the meaning set forth in Section 2.02(i) hereof.
“Money Markets” refers to one or more wholesale funding markets available to and
selected by Bank, including negotiable certificates of deposit, commercial paper, Eurodollar
deposits, bank notes, federal funds, interest rate swaps or others. The Enterprise acknowledges that
Bank is under no obligation to actually purchase and/or match funds to determine the Interest Rate
for any Term Loan.
“Net Pledged Revenues” means the Gross Pledged Revenues remaining after the payment
of the Operation and Maintenance Expenses of the System.
“Non-Use Fee” has the meaning set forth in Section 2.01(d) hereof.
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“Operation and Maintenance Expenses” means such reasonable and necessary current
expenses of the City, paid or accrued, of operating, maintaining and repairing the System
including, except as limited by contract or otherwise limited by law, without limiting the generality
of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale electricity
provider that acquires, constructs and operates generation capacity for the City, or its successor in
function;
(b) Engineering, auditing, legal and other overhead expenses directly related and
reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent, depository or
escrow agent appertaining to the System or any bonds or other securities issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
(f) Any taxes, assessments, franchise fees or other charges or payments in lieu of the
foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative expenses, and
costs of labor appertaining to the System and the cost of materials and supplies used for current
operation of the System;
(i) The costs incurred in the billing and collection of all or any part of the Gross
Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or otherwise.
“Operation and Maintenance Expenses” does not include:
(a) Any allowance for depreciation;
(b) Any costs of reconstruction, improvement, extensions, or betterments, including
without limitation any costs of Capital Improvements;
(c) Any accumulation of reserves for capital replacements;
(d) Any reserves for operation, maintenance, or repair of the System;
(e) Any allowance for the redemption of any bonds or other securities payable from
the Net Pledged Revenues or the payment of any interest thereon;
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(f) Any liabilities incurred in the acquisition of any properties comprising the System;
and
(g) Any other ground of legal liability not based on contract.
“Parity Debt” means any obligations of the Enterprise payable from and with a lien on the
Net Pledged Revenues on a parity basis with the 2019 Note.
“Permitted Investments” means any investment or deposit permissible under then
applicable law for governmental entities such as the Enterprise.
“Person” means an individual, a corporation, a partnership, an association, a joint venture,
a trust, an unincorporated organization or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Prime Rate” means a variable per annum rate of interest equal at all times to the rate of
interest established and quoted by the Bank as its “Prime Rate,” “Base Rate” or “Reference Rate,”
such rate to change contemporaneously with each change in such established and quoted rate,
provided that it is understood that the Prime Rate shall not necessarily be representative of the rate
of interest actually charged by the Bank on any loan or class of loans.
“Principal Payment Date” means the Maturity Date.
“Senior Debt” means the 2018A Bonds, the 2018B Bonds, and any obligations of the
Enterprise payable from and with a lien on the Net Pledged Revenues on a basis superior to the
2019 Note.
“Supplemental Public Securities Act” means Title 11, Article 57, C.R.S.
“System” means the City’s electric distribution system that furnishes electricity and related
services and excludes the City’s broadband system using fiber-optic technology. The System
consists of all properties, real, personal, mixed and otherwise, now owned or hereafter acquired by
the City, through purchase, construction and otherwise, and used in connection with such system
of the City, and in any way pertaining thereto and consisting of all properties, real, personal, mixed
or otherwise, now owned or hereafter acquired by the City, whether situated within or without the
City boundaries, used in connection with such system of the City, and in any way appertaining
thereto, including all present or future improvements, extensions, enlargements, betterments,
replacements or additions thereof or thereto and administrative facilities.
“Term Loan” has the meaning specified in Section 2.07.
“Term Loan Maturity Date” means the maturity date of a Term Loan as determined
pursuant to Section 2.07.
“Unfunded Portion” means, as of any date, an amount equal to the Maximum Advance
Amount, less the total amount of all Advances funded as of such date, less any reduction of the
Unfunded Portion made pursuant to Section 2.01 hereof.
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ARTICLE II
LOAN
Section 2.01. Loan.
(a) Agreement to Make Loan. The Bank hereby agrees to extend the Loan to
the Enterprise in the maximum aggregate principal amount of $2,500,000 subject to the terms and
conditions of this Agreement. The Loan shall be evidenced by the 2019 Note, the form of which
is set forth in Exhibit A attached hereto.
(b) Advances. Subject to the terms and conditions of this Agreement, including
without limitation satisfaction of the conditions set forth in Section 2.06 hereof and upon delivery
to the Bank of an Advance Request in the form of Exhibit B hereto, the Bank hereby agrees to
make Advances to the Enterprise from time to time during the Advance Period in the aggregate
original principal amounts not to exceed $2,500,000 with respect to the Loan (as more particularly
defined in Article I hereof, the “Maximum Advance Amount”). On the Advance Termination
Date, the Unfunded Portion shall be reduced to zero and no further Advances will be made
hereunder.
(c) Note. The Loan shall be evidenced by the 2019 Note. On the Closing Date,
the Enterprise shall execute and deliver the 2019 Note payable to the Bank, in substantially the
form set forth in Exhibit A attached hereto. The Enterprise shall maintain a book for the
registration of ownership of the 2019 Note. Upon any transfer of the 2019 Note as provided herein,
such transfer shall be entered on such registration books of the Enterprise.
With respect to each Advance funded by the Bank from time to time hereunder, the
Bank shall maintain, in accordance with its usual practices, records evidencing the indebtedness
resulting from each such Advance and the amounts of principal and interest payable and paid from
time to time hereunder. In any legal action or proceeding in respect of any Advance or the Loan,
the entries made in such records shall be conclusive evidence (absent manifest error) of the
existence and amounts of the obligations therein recorded. The Note shall evidence the obligation
of the Enterprise to pay the Loan and shall evidence the obligation of the Enterprise to pay the
principal amount of each Advance funded by the Bank hereunder, as such amounts are outstanding
from time to time, and accrued interest
(d) Non-Use Fees The Enterprise shall pay to the Bank a nonrefundable fee
(the “Non-Use Fee”), which shall be in the amount of 0.30% of the weighted average balance of
the Unfunded Portion from the Closing Date to the Advance Termination Date. The Non-Use Fee
shall be calculated and paid on the Advance Termination Date.
(e) Application of Loan Proceeds. The Enterprise shall apply the proceeds of
each Advance to pay the costs of the Project.
(f) Special Obligations. All amounts due under this Agreement or the 2019
Note shall be payable and collectible solely out of the Net Pledged Revenues, which revenues are
hereby so pledged which pledge is in all respects subordinate to the pledge and lien thereon of the
Senior Debt at any time outstanding. The Bank may not look to any general or other fund for the
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payment of such amounts; this Agreement and the 2019 Note shall not constitute a debt or
indebtedness within the meaning of any constitutional, charter, or statutory provision or limitation;
and this Agreement and the 2019 Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute special obligations of the Enterprise. No statutory or
constitutional provision enacted after the execution and delivery of this Agreement or the 2019
Note shall in any manner be construed as limiting or impairing the obligation of the Enterprise to
comply with the provisions of this Agreement or the 2019 Note. None of the covenants,
agreements, representations and warranties contained herein or in the 2019 Note shall ever impose
or shall be construed as imposing any liability, obligation or charge against the Enterprise or the
City (except the Net Pledged Revenues and the special funds pledged therefor), or against its
general credit, or as payable out of its general fund or out of any funds derived from taxation or
out of any other revenue source (other than those pledged therefor). The payment of the amounts
due under this Agreement or the 2019 Note is not secured by an encumbrance, mortgage or other
pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No property
of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or taken in
payment of such amounts.
Section 2.02. Interest Rate; Interest Payments; Principal Payments.
(a) Interest Rate. The unpaid principal balance of the Loan will bear interest
at the Interest Rate. All interest due and payable under this Agreement shall be calculated on the
basis of a 360-day year of twelve 30-day months. Interest payments on the Loan shall be due on
each Interest Payment Date and on the Maturity Date.
(b) Default Interest Rate. Immediately upon the occurrence of an Event of
Default or upon the Maturity Date, interest shall begin to accrue on all principal amounts owing
on the Loan at the Default Interest Rate for so long as such Event of Default continues and remains
uncured or, if after the Maturity Date, for so long as amounts due on the Loan remain unpaid.
(c) Principal Payments. Repayment of principal amounts owing under the
Loan shall occur on each Principal Payment Date.
(d) Prepayment. The Loan may be prepaid, in whole or in part, at the option
of the Enterprise, at a prepayment price equal to the principal amount so prepaid, plus accrued
interest to the prepayment date, with no prepayment fee. Any prepayment under this paragraph
shall only be made after the Enterprise gives two Business Days written notice to the Bank.
(e) Obligations Unconditional. The Enterprise’s obligation to repay the Loan
hereunder and all of its other obligations under this Agreement shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Enterprise may have against the Bank or any other Person, including, without limitation,
any defense based on the failure of any nonapplication or misapplication of the proceeds of the
Loan hereunder, and irrespective of the legality, validity, regularity or enforceability of all or any
of the Financing Documents, and notwithstanding any amendment or waiver of (other than an
amendment or waiver signed by the Bank explicitly reciting the release or discharge of any such
obligation), or any consent to, or departure from, all or any of the Financing Documents or any
exchange, release, or nonperfection of any collateral securing the obligations of the Enterprise
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hereunder and any other circumstances or happening whatsoever, whether or not similar to any of
the foregoing; provided, however, that nothing contained in this Section 2.02(e) shall abrogate or
otherwise affect the rights of the Enterprise pursuant to Section 8.05 hereof.
(f) Waivers, Etc. To the full extent permitted by law: (i) the Enterprise hereby
waives (A) presentment, demand, notice of demand, protest, notice of protest, notice of dishonor
and notice of nonpayment; (B) to the extent the Bank is not in default hereunder, the right, if any,
to the benefit of, or to direct application of, any security hypothecated to the Bank until all
obligations of the Enterprise to the Bank hereunder, howsoever arising, have been paid; (C) the
right to require the Bank to proceed against the Enterprise hereunder, or against any Person under
any guaranty or similar arrangement, or under any agreement between the Bank and any Person or
to pursue any other remedy in the Bank’s power; and (D) any defense arising out of the election
by the Bank to foreclose on any security by one or more non-judicial or judicial sales; (ii) the Bank
may exercise any other right or remedy, even though any such election operates to impair or
extinguish the Enterprise’s right to repayment from, or any other right or remedy it may have
against, any Person, or any security; and (iii) the Enterprise agrees that the Bank may proceed
against the Enterprise or any Person directly and independently of any other, and that any
forbearance, change of rate of interest, or acceptance, release or substitution of any security,
guaranty, or loan or change of any term or condition thereunder or under any Financing Document
(other than by mutual agreement between the Enterprise and the Bank) shall not in any way affect
the liability of the Enterprise hereunder.
(g) Manner of Payments. All interest, fees, and other payments to be made
hereunder by or on behalf of the Enterprise to the Bank shall be made, and shall not be considered
made until received, in United States dollars in immediately available funds. The Enterprise shall
make each payment hereunder in the manner and at the time necessary so that each such payment
is received by the Bank not later than 12:00 p.m., Colorado time, on the day when due in lawful
money of the United States of America in immediately available funds. Any payment received
after 12:00 p.m., Colorado time, shall be deemed made on the next succeeding Business Day. All
payments made hereunder by or on behalf of the Enterprise to the Bank shall be applied to such
amounts due hereunder and under the Financing Documents in the following order: first, to unpaid
Non-Use Fees, second, to accrued but unpaid interest, third, to principal and, fourth, to any other
amounts due hereunder.
(h) Default Interest Rate; Calculation of Interest and Fees. All interest and
fees due and payable under this Agreement shall be calculated on the basis of a 360-day year of
twelve 30-day months. Any sum due to the Bank and not paid when due and any sum due to the
Bank upon the occurrence or during the continuance of any Event of Default hereunder shall bear
interest at the Default Interest Rate.
(i) Maximum Interest Rate. If the interest due and payable on any obligation
hereunder computed at the applicable rate as provided in Section 2.02 hereof is in excess of 9.5%
(the “Maximum Rate”), the difference between what would have been the interest payable on such
amounts had they accrued interest at the rate provided in Section 2.02 and the Maximum Rate (the
“Interest Differential”) shall remain an obligation of the Enterprise. Notwithstanding anything
herein or in the Financing Documents to the contrary, if at any time there is an Interest Differential
owed to the Bank, any reduction in interest rate that would result from the application of the
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Maximum Rate to the Default Interest Rate, shall not reduce the rate of interest below the
Maximum Rate until the total amount due has been paid to the Bank as if the applicable rate
computed as provided in Section 2.02 hereof had at all times been utilized.
Section 2.03. Costs, Expenses and Taxes. The Enterprise agrees to pay all reasonable
costs and expenses actually incurred by the Bank in connection with (a) the preparation, execution
and delivery of this Agreement or any other documents, including the other Financing Documents,
which may be delivered by any party in connection with this Agreement and the other Financing
Document, and (b) the filing, recording, administration (other than normal, routine administration),
enforcement, transfer, amendment, maintenance, renewal or cancellation of this Agreement and
all amendments or modifications thereto (or supplements hereto), including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Bank and independent public
accountants and other outside experts retained by the Bank in connection with any of the foregoing;
and. In addition, the Enterprise agrees to pay promptly all reasonable costs and expenses of the
Bank, including, without limitation, the actual, reasonable fees and expenses of external counsel,
for (i) any and all amounts which the Bank has paid relative to the Bank’s curing of any Event of
Default under this Agreement or any of the Financing Documents; (ii) the enforcement of this
Agreement or any of the Financing Documents; or (iii) any action or proceeding relating to a court
order, injunction, or other process or decree restraining or seeking to restrain the Bank from paying
any amount hereunder. Without prejudice to the survival of any other agreement of the Enterprise
hereunder, the agreements and obligations contained in this Section 2.03 shall survive the payment
in full of all amounts owing to the Bank hereunder.
Section 2.04. Pledge. The Enterprise hereby pledges, assigns and grants to the Bank a
lien in the Net Pledged Revenues, which is subordinate to the lien which is pledged to secure the
payment of Senior Debt, to secure its obligations to the Bank hereunder and under the other
Financing Documents. The lien of the Bank on the Net Pledged Revenues hereunder shall be
subject to no other liens except those liens granted on the Net Pledged Revenues to any Senior
Debt heretofore or hereafter issued in accordance with the terms hereof and the Subordinate Debt.
The Enterprise represents and warrants that, except for the Senior Debt, the Net Pledged Revenues
is not and shall not be subject to any other lien or encumbrance without the prior written consent
of the Bank except as otherwise permitted pursuant to this Agreement.
Section 2.05. Conditions to Closing. The Closing on the Loan is conditioned upon the
satisfaction of each of the following:
(a) all Financing Documents and other instruments applicable to the Loan are
in form and content satisfactory to the Bank and have been duly executed and delivered in form
and substance satisfactory to the Bank and shall have not been modified, amended or rescinded,
shall be in full force and effect on and as of the Closing Date and executed original or certified
copies of each thereof shall have been delivered to the Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the
Enterprise, which shall be in form and content satisfactory to the Bank and authorize the Enterprise
to finance the Project, obtain the Loan and perform all acts contemplated by this Agreement and
all other Financing Documents; and a certified copy of all other ordinances, resolutions and
proceedings taken by the Enterprise authorizing the Enterprise to finance the Project, obtain the
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Loan and the execution, delivery and performance of this Agreement and the other Financing
Documents and the transactions contemplated hereunder and thereunder, together with such other
certifications as to the specimen signatures of the officers of the Enterprise authorized to sign this
Agreement and the other Financing Documents to be delivered by the Enterprise hereunder and as
to other matters of fact as shall reasonably be requested by the Bank;
(c) the Enterprise has provided a certificate certifying that on the Closing Date
each representation and warranty on the part of the Enterprise contained in this Agreement and in
any other Financing Document is true and correct and no Event of Default, or event which would,
with the passage of time or the giving of notice, constitute an Event of Default, has occurred and
is continuing and no default exists under any other Financing Documents, or under any other
agreements by and between the Enterprise and the Bank and certifying as to such other matters as
the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt
outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and that no Parity
Debt is outstanding as of the Closing Date;
(e) the Bank shall have received the opinion of Butler Snow LLP to the effect
that (i) the obligation of the Enterprise to pay the principal of and interest on the Loan constitutes
a valid and binding special obligation of the Enterprise payable solely from the Net Pledged
Revenues with a lien on the Net Pledged Revenues which is subordinate to the lien thereon of the
Senior Debt, and (ii) this Agreement and the Note are valid and binding obligations of the
Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors’ rights generally, and by equitable principles, whether
considered at law or in equity;
(f) all proceedings taken in connection with the transactions contemplated by
this Agreement, and all instruments, authorizations and other documents applicable thereto, are
satisfactory to the Bank and its counsel;
(g) no law, regulation, ruling or other action of the United States, the State of
Colorado or any political subdivision or authority therein or thereof shall be in effect or shall have
occurred, the effect of which would be to prevent the Enterprise from fulfilling its obligations
under this Agreement or the other Financing Documents;
(h) all Bank counsel fees and any other fees and expenses due and payable in
connection with the execution and delivery of this Agreement shall have been paid by the
Enterprise upon execution and delivery of this Agreement;
(i) the Bank shall have been provided with the opportunity to review all
pertinent financial information regarding the Enterprise, agreements, documents, and any other
material information relating to the Enterprise or the Net Pledged Revenues or any other
component of the collateral securing the obligations of the Enterprise hereunder;
(j) all information provided by the Enterprise to the Bank is accurate in all
respects;
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(k) the Bank shall have received such other certificates, approvals, filings,
opinions and documents as shall be reasonably requested by the Bank;
(l) all other legal matters pertaining to the execution and delivery of this
Agreement and the other Financing Documents shall be reasonably satisfactory to the Bank.
Section 2.06. Procedure for Requesting and Funding Advances.
(a) Conditions to Funding Advances. No Advance shall be requested by the
Enterprise and the Bank shall have no obligation to honor an Advance Request except in
accordance with the provisions and upon fulfillment of the terms and conditions set forth in this
Agreement. The funding by the Bank of each Advance is conditioned upon the satisfaction of
each of the following, each of which shall be satisfactory in all respects to the Bank:
(i) Advance Frequency. Advance Requests may only be made during
the Advance Period and shall be submitted to the Bank no more than once in any calendar month,
unless permitted more frequently by the Bank. Advances shall be made in amounts of $75,000 or
more.
(ii) Representations and Warranties True; No Default. At the time any
Advance is to be made and as a result thereof, immediately thereafter, all representations and
warranties of the Enterprise set forth in Article IV are true and correct as though made on the date
of such Advance Request and on the date when such Advance is funded and no Event of Default
hereunder has occurred and is continuing and no litigation is then pending or threatened concerning
the Enterprise’s authority to pledge the Net Pledged Revenues as provided herein, and the
Enterprise shall deliver an executed certificate of an Authorized Person to such effect in connection
with each Advance in substantially the form of Exhibit B.
(iii) Payments Current. The Enterprise shall be current on all of its
obligations hereunder.
(iv) Advance Request. The Bank shall have received an Advance
Request from the Enterprise, the form of which is attached hereto as Exhibit B (each, an “Advance
Request”), signed by the Authorized Person of the Enterprise and containing the calculation of the
amount of such Advance requested by the Enterprise.
(v) Amount of Advance. The amount of the requested Advance, when
combined with the sum of all prior Advances made hereunder shall not exceed the Maximum
Advance Amount for the Loan. From each Advance the Bank will transfer amounts as specified
in each Advance Request.
(vi) Material Adverse Changes. Since December 31, 2018, there has
been no change in the business, property, prospects, condition (financial or otherwise) or results
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of operations of the Enterprise which could reasonably be expected to have a Material Adverse
Effect.
(vii) Other Conditions Precedent to Funding Each Advance. No
Advance shall be requested or made after the Advance Termination Date.
(b) Funding of Advances. Provided that the conditions set forth in Section
2.06(a) above are satisfied, within 2 days of receipt by the Bank of an Advance Request signed by
the Authorized Person, the Bank shall provide the amount of such Advance to the Enterprise at
such depository as the Enterprise may direct.
Section 2.07. Conversion to Term Loan. Provided that (i) no Event of Default shall
have occurred and be continuing and (ii) all representations and certifications and agreements
herein are then true and correct, and (iii) the outstanding Senior Debt is rated in one of its four
highest rating categories by a national recognized organization which regularly rates obligations
such as the Senior Debt, the Enterprise may elect to convert all or a portion of the outstanding
Advances on or before the Advance Loan Maturity Date to one or more term loans, but not more
than four term loans (each a “Term Loan”) that shall be payable in full by no later than the 8th
anniversary of the Advance Loan Maturity Date. Such election shall be exercised by the Enterprise
delivering to the Bank a Conversion Notice, appropriately completed and signed by an Authorized
Person, at least three (3) Business Days prior to the Maturity Date. Each Term Loan shall be a
fully amortizing loan in approximately equal installments of principal and interest and shall mature
on the Term Loan Maturity Date specified in the Conversion Notice, which date shall be either the
3rd anniversary of the Advance Loan Maturity Date or the 8th anniversary of the Advance Loan
Maturity Date. Principal and interest on each Term Loan shall be payable on each Interest Payment
Date. The Interest Rate on a Term Loan shall be a fixed rate determined on the date an Advance
converts to a Term Loan and shall equal the Cost of Funds plus 1.65% for a Term Loan which
matures on the 3rd anniversary of the Advance Loan Maturity Date or the Cost of Funds plus
1.85% for a Term Loan which matures on the 8th anniversary of the Advance Loan Maturity Date.
The Enterprise and the Bank agree that the aggregate principal amount of all Advances which is
converted to a Term Loan shall be divided approximately equally between Term Loans which
mature on the 3rd anniversary of the Advance Loan Maturity Date and Term Loans which mature
on the 8th anniversary of the Advance Loan Maturity Date
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Light and Power Fund. So long as this Agreement is in effect, the entire
Gross Pledged Revenues, upon their receipt from time to time by the Enterprise, shall be set aside
and credited immediately to the Light and Power Fund. In each month, after making in full all
deposits or payments required in connection with the Senior Debt, the Enterprise shall pay to the
Bank from the Net Pledged Revenues remaining in the Light and Power Fund, the amounts due
under this Agreement and the Note.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously represents and warrants to the Bank as follows:
Section 4.01. Due Organization. The Enterprise is an enterprise of the City duly
organized and validly existing under Charter and Enterprise Ordinances.
Section 4.02. Power and Authorization. The Enterprise has all requisite power and
authority to own and convey its properties and to carry on its business as now conducted and as
contemplated to be conducted under the Financing Documents; to execute, deliver and to perform
its obligations under this Agreement and the other Financing Documents; and to cause the
execution, delivery and performance of the Financing Documents.
Section 4.03. No Legal Bar. To the best of the Enterprise’s knowledge, the Enterprise is
not in violation of any of the provisions of the laws of the State of Colorado or the United States
of America or any of the provisions of any order of any court of the State of Colorado or the United
States of America which would affect its existence, or its powers referred to in the preceding
Section 4.02. The execution, delivery and performance by the Enterprise of this Agreement and
of the other Financing Documents (a) will not violate any provision of any applicable law or
regulation or of any order, writ, judgment or decree of any court, arbitrator or governmental
authority; (b) will not violate any provisions of any document constituting, regulating or otherwise
affecting the operations or activities of the Enterprise; and (c) will not violate any provision of,
constitute a default under, or result in the creation, imposition or foreclosure of any lien, mortgage,
pledge, charge, security interest or encumbrance of any kind other than liens created or imposed
by the Financing Documents, on any of the revenues or other assets of the Enterprise which could
have a material adverse effect on the assets, financial condition, business or operations of the
Enterprise, on the Enterprise’s power to cause the Financing Documents to be executed and
delivered, or its ability to pay in full in a timely fashion the obligations of the Enterprise under this
Agreement or the other Financing Documents.
Section 4.04. Consents. The Enterprise has obtained all consents, permits, licenses and
approvals of, and has made all registrations and declarations with any governmental authority or
regulatory body required for the execution, delivery and performance by the Enterprise of this
Agreement and the other Financing Documents.
Section 4.05. Litigation. Except as disclosed in writing to the Bank, there is no action,
suit, inquiry or investigation or proceeding to which the Enterprise is a party, at law or in equity,
before or by any court, arbitrator, governmental or other board, body or official which is pending
or, to the best knowledge of the Enterprise, threatened in connection with any of the transactions
contemplated by this Agreement or the Financing Documents or against or affecting the assets of
the Enterprise, nor, to the best knowledge of the Enterprise, is there any basis therefor, wherein an
unfavorable decision, ruling or finding (a) would adversely affect the validity or enforceability of,
or the authority or ability of the Enterprise to perform its obligations under, the Financing
Documents; or (b) would, in the reasonable opinion of the Enterprise, have a materially adverse
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effect on the ability of the Enterprise to conduct its business as presently conducted or as proposed
or contemplated to be conducted.
Section 4.06. Enforceability. This Agreement and each other Financing Document
constitutes the legal, valid and binding special obligation of the Enterprise, enforceable against the
Enterprise in accordance with its terms (except as such enforceability may be limited by
bankruptcy, moratorium or other similar laws affecting creditors’ rights generally and provided
that the application of equitable remedies is subject to the application of equitable principles).
Section 4.07. Changes in Law. To the best knowledge of the Enterprise, there is not
pending any change of law which, if enacted or adopted could have a material adverse effect on
the assets, financial condition, business or operations of the Enterprise, on the Enterprise’s power
to enter into this Agreement or the other Financing Documents or its ability to pay in full in a
timely fashion the obligations of the Enterprise under this Agreement or the other Financing
Documents.
Section 4.08. Financial Information and Statements. The financial statements and
other information previously provided to the Bank or provided to the Bank in the future are or will
be complete and accurate and prepared in accordance with generally accepted accounting
principles. There has been no material adverse change in the Enterprise’s financial condition since
such information was provided to the Bank.
Section 4.09. Accuracy of Information. All information, certificates or statements given
to the Bank pursuant to this Agreement and the other Financing Documents will be true and
complete when given.
Section 4.10. Financing Documents. Each representation and warranty of the Enterprise
contained in any Financing Document is true and correct as of the Closing Date.
Section 4.11. Regulations U and X. The Enterprise is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U or X issued by the Board of Governors of the Federal Reserve System); and no
proceeds of the Loan will be or have been used to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 4.12. Default, Etc. The Enterprise is not in default in the performance,
observance, or fulfillment of any of the obligations, covenants or conditions contained in any
Financing Document or other ordinance, resolution, agreement or instrument to which it is a party
which would have a material adverse effect on the ability of the Enterprise to perform its
obligations hereunder or under the other Financing Documents, or which would affect the
enforceability hereof or thereof.
Section 4.13. Sovereign Immunity. The Enterprise represents that, under Section 24-10-
106, C.R.S., its governmental immunity is limited to claims for injury which lie in tort or could lie
in tort. Under existing law, the Enterprise is not entitled to raise the defense of sovereign immunity
in connection with any legal proceedings to enforce its contractual obligations under the Financing
Documents, or the transactions contemplated hereby or thereby including, without limitation, the
payment of the principal of and interest on the Note.
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Section 4.14. No Filings. No filings, recordings, registrations or other actions are
necessary to create and perfect the pledges provided for herein; all obligations of the Enterprise
hereunder are secured by the lien and pledge provided for herein; and the liens and pledges
provided for herein constitute valid prior liens subject to no other liens.
Section 4.15. Outstanding Debt. Upon the execution and delivery of this Agreement,
except for the Financing Documents and the 2018A Bonds and 2018B Bonds, the Enterprise will
have no other Debt outstanding payable from or secured by the Net Pledged Revenues or any
portion thereof. The Enterprise represents and warrants that it will incur additional Debt only in
accordance with the provisions of Section 5.23 of this Agreement.
ARTICLE V
COVENANTS OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously warrants and agrees as follows:
Section 5.01. Performance of Covenants, Authority. The Enterprise covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Ordinance, this Agreement, the Note, the other
Financing Documents and all its proceedings pertaining thereto as though such covenants,
undertakings, stipulations, and provisions were set forth in full herein (for the purpose of this
provision the Financing Documents shall be deemed to continue in full force and effect
notwithstanding any earlier termination thereof so long as any obligation of the Enterprise under
this Agreement shall be unpaid or unperformed). The Enterprise covenants that it is duly
authorized under the constitution and laws of the State of Colorado, including, particularly and
without limitation, the Charter and the Enterprise Ordinances, to obtain the Loan and to execute
and deliver the Note, this Agreement, and the other Financing Documents, and that all action on
its part for the execution and delivery of the Note, this Agreement, and the other Financing
Documents has been duly and effectively taken and will be duly taken as provided herein, and that
the Loan, the Note, this Agreement, and the other Financing Documents are and will be valid and
enforceable obligations of the Enterprise according to the terms hereof and thereof.
Section 5.02. Contractual Obligations. The Enterprise shall perform all contractual
obligations undertaken by it under any agreements relating to the Loan, the Gross Pledged
Revenues, the Project, or the System, or any combination thereof.
Section 5.03. Further Assurances. At any and all times the Enterprise shall, so far as it
may be authorized by law, pass, make, do, execute, acknowledge, deliver and file or record all and
every such further instruments, acts, deeds, conveyances, assignments, transfers, other documents
and assurances as may be reasonably necessary or desirable for better assuring, conveying,
granting, assigning and confirming all and singular the rights, the Net Pledged Revenues and other
moneys and accounts hereby pledged or assigned, or intended so to be, or which the Enterprise
may hereafter become bound to pledge or to assign, or as may be reasonable and required to carry
out the purposes of this Agreement and to comply with any instrument of the Enterprise
amendatory thereof, or supplemental thereto. The Enterprise, acting by and through its officers,
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or otherwise, shall at all times, to the extent permitted by law, defend, preserve and protect the
pledge of the Net Pledged Revenues and other moneys and accounts pledged hereunder and all the
rights of the Bank hereunder against all claims and demands of all Persons whomsoever.
Section 5.04. Conditions Precedent. Upon the date of the execution and delivery of this
Agreement, all conditions, acts and things required by the Federal or State Constitution, the
Charter, the Supplemental Act, the Enterprise Ordinances, or any other applicable law to exist, to
have happened and to have been performed precedent to the execution and delivery of this
Agreement shall exist, have happened, and have been performed; and the Bonds, together with all
other obligations of the Enterprise, shall not contravene any debt or other limitation prescribed by
the State Constitution.
Section 5.05. Rules, Regulations and Other Details. The Enterprise shall observe and
perform all of the terms and conditions contained in this Agreement, and shall comply with all
valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or
judicial body applicable to the System, the Enterprise, except for any period during which the same
are being contested in good faith by proper legal proceedings.
Section 5.06. Payment of Governmental Charges. The Enterprise shall pay or cause to
be paid all taxes and assessments or other governmental charges, if any, lawfully levied or assessed
upon or in respect of the System, or upon any part thereof, or upon any portion of the Gross Pledged
Revenues, when the same shall become due, and shall duly observe and comply with all valid
requirements of any governmental authority relative to the System or any part thereof, except for
any period during which the same are being contested in good faith by proper legal proceedings.
The Enterprise shall not create or suffer to be created any lien upon the System, or any part thereof,
or upon the Gross Pledged Revenues, except the pledge and lien created by for Senior Debt and
Parity Debt and except as herein otherwise permitted. The Enterprise shall pay or cause to be
discharged or shall make adequate provision to satisfy and to discharge, within 60 days after the
same shall become payable, all lawful claims and demands for labor, materials, supplies or other
objects which, if unpaid, might by law become a lien upon the System, or any part thereof, or the
Gross Pledged Revenues; but nothing herein requires the Enterprise to pay or cause to be
discharged or to make provision for any such tax, assessment, lien or charge, so long as the validity
thereof is contested in good faith and by appropriate legal proceedings.
Section 5.07. Protection of Security. The Enterprise and its officers, agents and
employees shall not take any action in such manner or to such extent as might prejudice the security
for the payment of the amounts due under this Agreement or the Note. No contract shall be entered
into nor any other action taken by which the rights of the Bank might be prejudicially and
materially impaired or diminished.
Section 5.08. Prompt Payment . The Enterprise shall promptly pay the amounts due
under this Agreement or the Note at the places, on the dates and in the manner specified herein
and in the Agreement or the Note according to the true intent and meaning hereof.
Section 5.09. Use of Funds and Accounts. The funds and accounts described herein
shall be used solely and only for the purposes described herein.
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Section 5.10. Other Liens. Other than the 2018A Bonds and 2018B Bonds, there are no
liens or encumbrances of any nature whatsoever on or against the System, or any part thereof, or
on or against the Net Pledged Revenues on a parity with or superior to the lien thereon of this
Agreement and the Note.
Section 5.11. Reasonable and Adequate Charges. The fees, rates and other charges due
to the Enterprise for the use of or otherwise pertaining to and services rendered by the System to
the Enterprise, to its inhabitants and to all other users within and without the boundaries of the
Enterprise shall be reasonable and just, taking into account and consideration public interests and
needs, the cost and value of the System, the Operation and Maintenance Expenses thereof, and the
amounts necessary to meet the debt service requirements of all Senior Debt, Parity Debt, and any
other securities payable from the Net Pledged Revenues, including, without limitation, reserves
and any replacement accounts therefor.
Section 5.12. Adequacy and Applicability of Charges. There shall be charged against
users of service pertaining to and users of the System, except as provided by Section 5.13 hereof,
such fees, rates and other charges so that the Gross Pledged Revenues shall be adequate to meet
the requirements of this Section. Such charges pertaining to the System shall be at least sufficient
so that the Gross Pledged Revenues annually are sufficient to pay in each Fiscal Year:
(a) Operation and Maintenance Expenses. amount equal to the annual
Operation and Maintenance Expenses for such Fiscal Year that are payable from the Gross Pledged
Revenues
(b) Principal and Interest An amount equal to 125% of the debt service
requirements on the Senior Debt and any Parity Debt then outstanding in that Fiscal Year
(excluding the reserves therefor), and
(c) Deficiencies. All sums, if any, due and owing to meet then existing
deficiencies pertaining to any fund or account relating to the Gross Pledged Revenues or any
securities payable therefrom.
Section 5.13. Limitations Upon Free Service. No free service or facilities shall be
furnished by the System, except that the City shall not be required to pay for any use by the City
of any facilities of the System for municipal purposes. If the City chooses, in its sole discretion,
to pay for its use of the System, all the income so derived from the City shall be deemed to be
income derived from the operation of the System, to be used and to be accounted for in the same
manner as any other income derived from the operation of the System.
Section 5.14. Collection of Charges. The Enterprise shall cause all fees, rates and other
charges pertaining to the System to be collected as soon as is reasonable, shall reasonably prescribe
and enforce rules and regulations or impose contractual obligations for the payment of such
charges, and for the use of the System, and shall provide methods of collection and penalties, to
the end that the Gross Pledged Revenues shall be adequate to meet the requirements of this
Agreement and the Note
Section 5.15. Maintenance of Records. Proper books of record and account shall be kept
by the Enterprise, separate and apart from all other records and accounts.
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Section 5.16. Accounting Principles. System records and accounts, and audits thereof,
shall be currently kept and made, as nearly as practicable, in accordance with the then generally
accepted accounting principles, methods and terminology followed and construed for utility
operations comparable to the System, except as may be otherwise provided herein or required by
applicable law or regulation or by contractual obligation existing on the execution and delivery of
this Agreement.
Section 5.17. Laws, Permits and Obligations. The Enterprise will comply in all
material respects with all applicable laws, rules, regulations, orders and directions of any
governmental authority and all agreements and obligations binding on the Enterprise,
noncompliance with which would have a material adverse effect on the Enterprise, its financial
condition, assets or ability to perform its obligations under the other Financing Documents;
provided that the Enterprise may in good faith contest such laws, rules, regulations, orders and
directions and the applicability thereof to the Enterprise to the extent that such action would not
be likely to have a material adverse effect on the Enterprise’s ability to perform its obligations
hereunder.
Section 5.18. Bonding and Insurance. The Enterprise shall carry general liability
coverage, workers’ compensation, public liability, and such other forms of insurance on insurable
Enterprise property upon the terms and conditions, and issued by recognized insurance companies,
as in the judgment of the Enterprise would ordinarily be carried by entities having similar
properties of equal value, such insurance being in such amounts as will protect the Enterprise and
its operations.
Section 5.19. Other Liabilities. The Enterprise shall pay and discharge, when due, all of
its liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.20. Proper Books and Records. The Enterprise shall keep or cause to be kept
adequate and proper records and books of account in which complete and correct entries shall be
made with respect to the Enterprise, the Net Pledged Revenues and all of the funds and accounts
established or maintained pursuant to any of the Financing Documents. The Enterprise shall (a)
maintain accounting records in accordance with generally recognized and accepted principles of
accounting consistently applied throughout the accounting periods involved; (b) provide the Bank
with such information concerning the business affairs and financial condition (including insurance
coverage) of Enterprise as the Bank may request; and (c) without request, provide the Bank with
the information set forth below.
Section 5.21. Reporting Requirements.
(a) The Enterprise shall notify the Bank promptly of all interim litigation or
administrative proceedings, threatened or pending, against the Enterprise which would, if
adversely determined, in the Enterprise’s reasonable opinion, have a material effect on the
Enterprise’s financial condition arising after the date hereof.
(b) The Enterprise shall provide the following to the Bank at the times and in
the manner provided below:
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(i) as soon as available, but not later than 210 days following the end
of each Fiscal Year, the Enterprise shall furnish to the Bank its audited financial statements
prepared in accordance with generally accepted accounting principles consistently applied, in
reasonable detail and certified by a firm of independent certified public accountants selected by
the Enterprise; and
(ii) promptly upon request of the Bank, the Enterprise shall furnish to
the Bank such other reports or information regarding the collateral securing the obligations of the
Enterprise hereunder or the assets, financial condition, business or operations of the Enterprise, as
the Bank may reasonably request.
(c) The Enterprise shall promptly notify the Bank of any Event of Default of
which the Enterprise has knowledge, setting forth the details of such Event of Default and any
action which the Enterprise proposes to take with respect thereto.
(d) The Enterprise shall notify the Bank as soon as possible after the Enterprise
acquires knowledge of the occurrence of any event which, in the reasonable judgment of the
Enterprise, is likely to have a material adverse effect on the financial condition of the Enterprise
or affect the ability of the Enterprise to perform its obligations under this Agreement or under any
other Financing Documents.
Section 5.22. Visitation and Examination. Unless otherwise prohibited by law, the
Enterprise will permit any Person designated by the Bank to visit any of its offices to examine the
Enterprise’s books and financial records, and make copies thereof or extracts therefrom, and to
discuss its affairs, finances and accounts with its principal officers, all at such reasonable times
and as often as the Bank may reasonably request.
Section 5.23. Additional Debt. The Enterprise may issue Debt with a lien on the Net
Pledged Revenues that is on a parity with or subordinate to the lien of this Agreement, without the
Bank’s prior written consent. The Enterprise may issue Debt with a lien on the Net Pledged
Revenues that is senior to the lien of this Agreement, without the Bank’s prior written consent, if
such Debt is issued pursuant to the provisions of the 2018 Bond Ordinance.
ARTICLE VI
INVESTMENTS
Section 6.01. Permitted Investments Only. All moneys held in the Light and Power
Fund shall be invested in Permitted Investments only.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event of
Default under this Agreement (whatever the reason for such event or condition and whether it shall
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be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree,
rule, regulation or order of any court or any administrative or governmental body):
(a) the Enterprise fails to pay the principal of or interest on the Note or any
Parity Debt when due;
(b) the Enterprise fails to pay when due any other amounts due and payable to
the Bank under this Agreement or any other Financing Documents;
(c) the Enterprise fails to observe or perform any other of the covenants,
agreements or conditions on the part of the Enterprise in this Agreement, the Note, or the
Authorizing Ordinance and the Enterprise fails to remedy the same within 30 days after the Bank
has provided the Enterprise with notice thereof;
(d) any representation or warranty made by the Enterprise in this Agreement or
in any other Financing Document or any certificate, instrument, financial or other statement
furnished by the Enterprise to the Bank, proves to have been untrue or incomplete in any material
respect when made or deemed made;
(e) the pledge of the collateral or any other security interest created hereunder
fails to be fully enforceable with the priority required hereunder or thereunder;
(f) any judgment or court order for the payment of money exceeding any
applicable insurance coverage by more than $100,000 in the aggregate is rendered against the
Enterprise and the Enterprise fails to vacate, bond, stay, contest, pay or satisfy such judgment or
court order for 60 days;
(g) the Enterprise shall initiate, acquiesce or consent to any proceedings to
dissolve the Enterprise or to consolidate the Enterprise with other similar entities into a single
entity or the Enterprise shall otherwise cease to exist;
(h) a change occurs in the financial or operating conditions of the Enterprise,
or the occurrence of any other event that, in the Bank’s reasonable judgment, will have a materially
adverse impact on the ability of the Enterprise to generate Net Pledged Revenues sufficient to
satisfy the Enterprise’s obligations under this Agreement or its other obligations, and the
Enterprise fails to cure such condition within six months after receipt by the Enterprise of written
notice thereof from the Bank;
(i) the Enterprise shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered with respect to it or
seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or
its debts; or (B) seeking appointment of a receiver, trustee, custodian or other similar official for
itself or for any substantial part of its property, or the Enterprise shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the Enterprise any case,
proceeding or other action of a nature referred to in clause (i) and the same shall remain
undismissed; or (iii) there shall be commenced against the Enterprise any case, proceeding or other
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action seeking issuance of a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its property which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending appeal, within 60 days
from the entry thereof; (iv) the Enterprise shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) the Enterprise shall generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due;
(j) this Agreement or any other Financing Document, or any material provision
hereof or thereof, (i) ceases to be valid and binding on the Enterprise or is declared null and void,
or the validity or enforceability thereof is contested by the Enterprise (unless being contested by
the Enterprise in good faith), or the Enterprise denies it has any or further liability under any such
document to which it is a party; or (ii) any pledge or security interest created fails to be fully
enforceable with the priority required hereunder or thereunder; and
(k) the Enterprise’s auditor delivers a qualified opinion with respect to the
Enterprise’s status as an on-going concern.
Section 7.02. Remedies. Upon the occurrence and during the continuance of any Event
of Default, the Loan shall bear interest at the Default Interest Rate. Upon the occurrence and
during the continuance of any Event of Default, the Bank, at its option, may take any action or
remedy available under the other Financing Documents or any other document, or at law or in
equity. Notwithstanding anything to the contrary herein, acceleration of the Loan shall not be an
available remedy for the occurrence or continuance of an Event of Default. In exercising any
remedy hereunder, the Bank shall give notice to all Notice Parties.
Section 7.03. Notice to Bank of Default. Notwithstanding any cure period described
above, the Enterprise will immediately notify the Bank in writing when the Enterprise obtains
knowledge of the occurrence of any Event of Default or any event which would, with the passage
of time or the giving of notice, constitute an Event of Default.
Section 7.04. Additional Bank Rights. Upon the occurrence of an Event of Default the
Bank may at any time take such other steps to protect or preserve the Bank’s interest in the Net
Pledged Revenues.
Section 7.05. Delay or Omission No Waiver. No delay or omission of the Bank to
exercise any right or power accruing upon any default shall exhaust or impair any such right or
power or shall be construed to be a waiver of any such default, or acquiescence therein; and every
power and remedy given by this Agreement may be exercised from time to time and as often as
may be deemed expedient.
Section 7.06. No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any subsequent
or any other then existing Event of Default or shall impair any rights or remedies consequent
thereon. All rights and remedies of the Bank provided herein shall be cumulative and the exercise
of any such right or remedy shall not affect or impair the exercise of any other right or remedy.
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Section 7.07. Other Remedies. Nothing in this Article VII is intended to restrict the
Bank’s rights under any of the Financing Documents or at law or in equity, and the Bank may
exercise all such rights and remedies as and when they are available.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Enterprise (and the rights and remedies of the
Bank) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Bank the most favorable rights set forth
in the conflicting documents, except that if there is a direct conflict between any preprinted terms
and specifically negotiated terms (whether included in an addendum or otherwise), the specifically
negotiated terms will control.
Section 8.02. Assignments, Participations, etc. by the Bank. The Bank may not assign
or transfer this Agreement or the Note or participate any of the Bank’s interests in the Agreement
or the Note without the Enterprise’s prior written consent. Any such assignment without the
Enterprise’s prior written consent shall be deemed null and void and of no effect.
Section 8.03. Notices. Notices shall be deemed delivered when the notice has been (a)
deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery service;
(c) received by Electronic Notification; or (d) when personally delivered at the following addresses
(the “Notice Parties”): Notice of any record shall be deemed delivered when the record has been
(a) deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery
service; (c) received by Electronic Notification; or (d) when personally delivered at the following
addresses (the “Notice Parties”):
to Enterprise: City of Fort Collins, Colorado, Electric Utility Enterprise
____________
____________
to Bank: U.S. Bank National Association
_____________
_____________
Section 8.04. Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Bank to principal, interest and other
amounts due under the Note and this Agreement pursuant to the terms of this Agreement.
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Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement and all other Financing Documents will be governed by and interpreted in accordance
with the internal laws of the State of Colorado, except to the extent superseded by Federal law.
Invalidity of any provisions of this Agreement will not affect any other provision. TO THE
EXTENT PERMITTED BY LAW, THE ENTERPRISE AND THE BANK HEREBY CONSENT
TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER
COUNTY, COLORADO, AND WAIVE ANY OBJECTIONS BASED ON FORUM NON
CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTE, THE NET PLEDGED
REVENUES, ANY OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS
ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF
THE FOREGOING. Nothing in this Agreement will affect the Bank’s rights to serve process in
any manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Bank’s offices, and only upon the Bank’s receipt of the executed originals thereof. Invalidity
of any provision of this Agreement shall not affect the validity of any other provision.
Section 8.06. Copies; Entire Agreement; Modification. The Enterprise hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT MAY
ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL
ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN
EFFECT BETWEEN THE ENTERPRISE AND THE BANK. A MODIFICATION OF ANY
OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN THE ENTERPRISE AND THE
BANK, WHICH OCCURS AFTER RECEIPT BY THE ENTERPRISE OF THIS NOTICE, MAY
BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT IS NOT ENFORCEABLE AND
SHOULD NOT BE RELIED UPON.
Section 8.07. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
ENTERPRISE AND THE BANK HEREBY JOINTLY AND SEVERALLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO ANY
OF THE FINANCING DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY
COLLATERAL SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING
THEREFROM OR CONNECTED THERETO. THE ENTERPRISE AND THE BANK EACH
REPRESENTS TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
Section 8.08. Attachments. All documents attached hereto, including any appendices,
schedules, riders and exhibits to this Agreement, are hereby expressly incorporated by reference.
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Section 8.09. No Recourse Against Officers and Agents. Pursuant to Section
11-57-209 of the Supplemental Public Securities Act, if a member of the Board, or any officer or
agent of the Enterprise, acts in good faith in the performance of his duties as a member, officer, or
agent of the Board or the Enterprise and in no other capacity, no civil recourse shall be available
against such member, officer or agent for payment of the principal of and interest on the Loan.
Such recourse shall not be available either directly or indirectly through the Board or the
Enterprise, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement
of penalty, or otherwise. By the acceptance of the delivery of the Note evidencing the Loan and
as a part of the consideration for such transfer, the Bank and any Person purchasing or accepting
the transfer of the obligation representing the Loan specifically waives any such recourse.
Section 8.10. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, this Agreement is entered into pursuant to certain provisions of the
Supplemental Public Securities Act. Such recital shall be conclusive evidence of the validity and
the regularity of the issuance of this Agreement after delivery for value.
Section 8.11. Limitation of Actions. Pursuant to Section 11-57-212 of the Supplemental
Public Securities Act, no legal or equitable action brought with respect to any legislative acts or
proceedings in connection with the authorization or issuance of the Loan shall be commenced
more than 30 days after the authorization of the Loan.
Section 8.12. Pledge of Revenues. The creation, perfection, enforcement, and priority of
the pledge of revenues to secure or pay the Loan provided herein shall be governed by Section
11-57-208 of the Supplemental Public Securities Act, this Agreement, the Note, and the
Authorizing Ordinance. The amounts pledged to the payment of the Loan shall immediately be
subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of
such pledge shall have a first priority. 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 Enterprise irrespective of whether such Persons have notice of such liens.
Section 8.13. No Liability. The Bank, including its agents, employees, officers, directors
and controlling Persons, shall not have any liability to the Enterprise, and the Enterprise assumes
all risk, responsibility and liability for (a) the form, sufficiency, correctness, validity, genuineness,
falsification and legal effect of any demands and other documents, instruments and other papers
relating to the Loan even if such documents, should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (b) the general and particular conditions stipulated therein; (c)
the good faith acts of any Person whosoever in connection therewith; (d) failure of any Person
(other than the Bank, subject to the terms and conditions hereof) to comply with the terms of the
Loan; (e) errors, omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telex, telegraph, wireless or otherwise, whether or not they be in code; (f) errors in
translation or errors in interpretation of technical terms; (g) for any other consequences arising
from causes beyond the Bank’s control; or (h) any use of which may be made of the proceeds of
the Loan, except to the extent of any direct, as opposed to indirect, consequential, or special
damages suffered by the Enterprise which direct damages are proven by the Enterprise to be caused
by the Bank’s willful or grossly negligent failure to make lawful payment under the Loan.
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Section 8.14. No Waiver; Modifications in Writing. No failure or delay on the part of
the Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude any other right,
power or remedy. The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Bank at law or in equity or otherwise. No amendment,
modification, supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by the Enterprise therefrom, shall be effective unless the same shall be in
writing and signed by or on behalf of the Bank and the Enterprise. Any amendment, modification
or supplement of or to any provision of this Agreement, and any consent to any departure by the
Enterprise from the terms of any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given. No notice to or demand on the
Enterprise in any case shall entitle the Enterprise to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the right of the Bank to any other or further action
in any circumstances without notice or demand.
Section 8.15. Payment on Non-Business Days. Whenever any payment hereunder shall
be stated to be due on a day which is not a Business Day, such payment may be made on the next
succeeding Business Day.
Section 8.16. Execution in Counterparts; Electronic Storage. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one and the same
Agreement. The parties hereto agree that the transactions described herein may be conducted and
related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic
files and other reproductions of original executed documents shall be deemed to be authentic and
valid counterparts of such original documents for all purposes, including the filing of any claim,
action or suit in the appropriate court of law.
Section 8.17. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 8.18. Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.
Section 8.19. Waiver of Rules of Construction. The Enterprise hereby waives any and
all provisions of law to the effect that an ambiguity in a contract or agreement should be interpreted
against the party responsible for its drafting.
Section 8.20. Integration. This Agreement is intended to be the final agreement between
the parties hereto relating to the subject matter hereof and this Agreement and any agreement,
document or instrument attached hereto or referred to herein shall supersede all oral negotiations
and prior writings with respect to the subject matter hereof.
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Section 8.21. Termination of Agreement. At such time as all amounts due to the Bank
have been duly paid, or provided for, this Agreement shall terminate.
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set forth above.
U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By _______________________________________
Name _____________________________________
Title ______________________________________
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE, an
enterprise of the City of Fort Collins, Colorado
By _______________________________________
President
[SEAL]
Attest:
By
Secretary
[Signature Page to Loan Agreement]
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A‐1
EXHIBIT A
FORM OF 2019 NOTE
THIS NOTE MAY NOT BE SOLD TRANSFERRED OR OTHERWISE DISPOSED OF
WITHOUT THE CONSENT OF THE ENTERPRISE.
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
2019 TAXABLE SUBORDINATE LIEN REVENUE NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
NOT TO EXCEED $2,500,000
Advances Not to Exceed US $2,500,000 __________, 2019
FOR VALUE RECEIVED, CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise of the City of Fort Collins, Colorado, (hereinafter referred
to as “Maker”), promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national banking association, its successors and assigns (hereinafter referred to as “Payee”), at the
office of Payee or its agent, designee, or assignee at ___________________ or at such place as
Payee or its agent, designee, or assignee may from time to time designate in writing, all Advances
made in an amount not to exceed the principal sum of TWO MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS (US $2,500,000) (this “Note”) pursuant to the terms of
the Loan Agreement dated of even date herewith by and between Maker and Payee (the “Loan
Agreement”), in lawful money of the United States of America.
This Note shall bear interest, be payable, and mature pursuant to the terms and provisions
of the Loan Agreement. All capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed in the Loan Agreement.
All amounts due under this Note shall be payable and collectible solely out of the Net
Pledged Revenues, which revenues are hereby so pledged which pledge is in all respects
subordinate to the pledge and lien thereon of the Senior Debt at any time outstanding. The Bank
may not look to any general or other fund for the payment of such amounts; this Note shall not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute a special obligation of the Enterprise. No statutory
or constitutional provision enacted after the execution and delivery of the Note shall in any manner
be construed as limiting or impairing the obligation of the Enterprise to comply with the provisions
of this Note. None of the covenants, agreements, representations and warranties contained herein
or in this Note shall ever impose or shall be construed as imposing any liability, obligation or
charge against the Enterprise or the City (except the Net Pledged Revenues and the special funds
pledged therefor), or against its general credit, or as payable out of its general fund or out of any
funds derived from taxation or out of any other revenue source (other than those pledged therefor).
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A‐2
The payment of the amounts due under this Note is not secured by an encumbrance, mortgage or
other pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No
property of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or
taken in payment of such amounts.
Amounts received by Payee under this Note shall be applied in the manner provided by the
Loan Agreement. All amounts due under this Note shall be payable without setoff, counterclaim
or any other deduction whatsoever by Maker.
Unless payments are made in the required amount in immediately available funds in
accordance with the provisions of the Loan Agreement, remittances in payment of all or any part
of the amounts due and payable hereunder shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by Payee in funds
immediately available at the place where this Note is payable (or any other place as Payee, in
Payee’s sole discretion, may have established by delivery of written notice thereof to Maker) and
shall be made and accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or banks. Acceptance by Payee
of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only and any unpaid amounts shall remain due hereunder, all as more particularly provided
in the Loan Agreement.
In the event of nonpayment of this Note, Payee shall be entitled to all remedies under the
Loan Agreement and at law or in equity, and all remedies shall be cumulative.
It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to
comply with applicable state law and applicable United States federal law. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any amount called for under
this Note or under the Loan Agreement, or contracted for, charged, taken, reserved or received
with respect to the indebtedness evidenced by this Note, then it is Maker’s and Payee’s express
intent that all excess amounts theretofore collected by Payee be credited on the principal balance
of this Note (or, if this Note has been or would thereby be paid in full, refunded to Maker), and the
provisions of this Note shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and under the Loan Agreement. All sums paid or agreed
to be paid to Payee for the use, forbearance and detention of the indebtedness evidenced hereby
and by the Loan Agreement shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed the maximum rate
permitted under applicable law from time to time in effect and applicable to the indebtedness
evidenced hereby for so long as such indebtedness remains outstanding.
Maker and any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, protest and notice of protest and nonpayment, all applicable
exemption rights, valuation and appraisement, notice of demand, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of the payment of
this Note and the bringing of suit and diligence in taking any action to collect any sums owing
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
A‐3
hereunder or in proceeding against any of the rights and collateral securing payment hereof. Maker
and any surety, endorser or guarantor hereof agree (a) that the time for any payments hereunder
may be extended from time to time without notice and consent; (b) to the acceptance of further
collateral; (c) to the release of any existing collateral for the payment of this Note; (d) to any and
all renewals, waivers or modifications that may be granted by Payee with respect to the payment
or other provisions of this Note; and/or (e) that additional makers, endorsers, guarantors or sureties
may become parties hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the payment of this Note shall
affect the liability of Maker under this Note or any endorser or guarantor hereof even though Maker
or such endorser or guarantor is not a party to such agreement.
Failure of Payee to exercise any of the options granted herein to Payee upon the happening
of one or more of the events giving rise to such options shall not constitute a waiver of the right to
exercise the same or any other option at any subsequent time in respect to the same or any other
event. The acceptance by Payee of any payment hereunder that is less than payment in full of all
amounts due and payable at the time of such payment shall not constitute a waiver of the right to
exercise any of the options granted herein or in the Loan Agreement to Payee at that time or at any
subsequent time or nullify any prior exercise of any such option without the express written
acknowledgment of Payee.
Maker (and the undersigned representative of Maker, if any) represents that Maker has full
power, authority and legal right to execute, deliver and perform its obligations pursuant to this
Note and this Note constitutes the legal, valid and binding obligation of Maker.
All notices or other communications required or permitted to be given hereunder shall be
given in the manner and be effective as specified in the Loan Agreement, directed to the parties at
their respective addresses as provided therein.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to and under the authority of the Supplemental Public Securities Act, being
Title 11, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be conclusive
evidence of the validity and the regularity of the issuance of this Note after delivery for value and
shall conclusively impart full compliance with all provisions and limitations of said statutes, and
this Note shall be incontestable for any cause whatsoever after delivery for value.
By acceptance of this instrument, the Payee agrees and consents to all of the limitations in
respect of the payment of the principal of and interest on this Note contained herein, in the
Authorizing Ordinance of the Maker authorizing the issuance of this Note and in the Agreement,
as the same may be amended from time to time.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER COUNTY,
COLORADO, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
A‐4
WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING
TO THIS NOTE, THE LOAN AGREEMENT, THE NET PLEDGED REVENUES, ANY
OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS ARISING THEREFROM,
OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS
NOTE, THE LOAN AGREEMENT, OR ANY OF THE OTHER FINANCING DOCUMENTS,
THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED
THERETO. MAKER REPRESENTS TO PAYEE THAT THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY GIVEN.
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY
AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE NO
ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of City of Fort Collins, Colorado,
Electric Utility Enterprise, as Maker, has executed this Note as of the day and year first above
written.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
President
[SEAL]
Attest:
By
Secretary
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
B‐1
EXHIBIT B
FORM OF ADVANCE REQUEST
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [Closing Date], 2019 (the “Agreement”) by and between City of Fort
Collins, Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”).
All capitalized terms used in this Advance Request (“Advance Request”) shall have the respective
meanings assigned in the Agreement.
The undersigned Authorized Person hereby makes a request to the Bank for an Advance
on the Loan, and in support thereof states:
(i) The amount of the Advance so requested is $___________.
(ii) Upon the funding of such Advance, the sum of all Advances will not exceed the
Maximum Advance Amount of the Loan.
(iii) At the time the requested Advance is to be made and as a result thereof, immediately
thereafter, all representations and warranties of the Enterprise set forth in Article IV of the Loan
Agreement are true and correct as though made on the date hereof and will be true and correct as
though made on the Advance Date and no Event of Default shall have occurred and be continuing
on the date hereof and on the Advance Date and no litigation is currently pending or threatened
concerning the Enterprise’s authority to pledge the Net Pledged Revenues as provided in the Loan
Agreement.
(vi
(iv) The outstanding Senior Debt is rated in one of its four highest rating categories by
a national recognized organization which regularly rates obligations such as the Senior Debt
(v) The requested Advance shall be made by the Bank by ACH batch transfer to the
Enterprise in accordance with the instructions set forth below:
[Insert wire instructions]
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________,
20__.
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
C‐1
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
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Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
C‐1
EXHIBIT C
FORM OF CONVERSION NOTICE
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [Closing Date], 2019 (the “Agreement”) by and between City of Fort
Collins, Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”).
All capitalized terms used in this Conversion Notice have the respective meanings assigned in the
Agreement.
You are hereby notified that the Enterprise has elected to convert the followings Advances
to a Term Loan effective as of the ____ and maturing on __________, 20__ (which date is not
later than the 8th anniversary of the Closing Date):
Advance Date Outstanding Principal Amount
2. No Event of Default has occurred and is continuing under the Agreement.
3. All representations and certifications of Enterprise in the Agreement are true and correct as of
the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________, 20__.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
48835181.v34
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Packet Pg. 65
Attachment: US Bank Loan Agreement (redlined to show changes) (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
1
Nov. 19, 2019
Epic Homes U.S. Bank Loan Agreement
Sean Carpenter, Climate Economy Advisor
Travis Storin, Accounting Director
ATTACHMENT 5
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Packet Pg. 66
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Updated Loan Agreement
What has changed from Ordinance No. 007?
• Required minimum credit rating of BBB+ in order for the Enterprise to
utilize the fixed-rate term out feature
Analysis
Electric Enterprise maintains current credit rating of AA- / Stable
• By policy, Electric Enterprise must maintain a rating of A
• No expected changes in original intended use of Term Loan feature
2
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Packet Pg. 67
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Ordinance Overview
Term Rate Amount Additional Details
Up to 10 year Up to 9.5% based on
published Prime
rate*
Up to $2.5M Fixed rate after loan draw
period
3
*Represents the 20-year high (currently 4.75%, City would pay 3.61%). Staff will evaluate
the fixed rate term-out if Prime rate move to the 6.5% to 7.5% range.
Ordinance No. 008, 2019, Amending its Ordinance No. 007 which Authorized a
Loan Agreement with U.S. Bank National Association to Provide Funding for the
Epic Loan Program
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Packet Pg. 68
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
City Debt Policy
Variable Rate Debt
• Policy language: The City will normally not issue variable rate debt
… certain circumstances may warrant the issuance of variable rate
debt, but the City will attempt to stabilize the debt service
payments through the use of an appropriate stabilization
arrangement.
• Staff analysis
• The proposed 5- and 10-year facility with U.S. Bank
conforms to the existing policy because it has rate-lock
(term out) rights during the 2-year draw window.
4
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Packet Pg. 69
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Next Steps
• Finalize capital agreements with U.S. Bank
• Continue development of 15-year capital options
• Marketing and promotion to rental property owners
• Indoor environmental quality study with Colorado State University
• Document results and report to stakeholders
5
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Packet Pg. 70
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Ordinance 008
6
Thank you
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Packet Pg. 71
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
7
3rd Party Capital
7
Backup Slides
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Packet Pg. 72
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
2019-2020
BUDGET
• Utilities energy
efficiency programs
• Bloomberg Mayors
Challenge $1M prize
Alignment and Resources
8
COUNCIL
PRIORITIES
• Low income benefits
• Equity and inclusion
• Improve air quality
STRATEGIC
OBJECTIVES
Social Health
• 1.3 Accessibility for
low- and moderate-income
Environmental Health
• 4.1 Climate Action
• 4.2 Air quality
• 4.3 Energy Policy
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Packet Pg. 73
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Epic Homes Capital History
2013-2016: On-Bill Financing 1.0 from Utilities reserve funds
2018-2019: Revitalization though Bloomberg and Colorado Energy
Office grant funds
2018-2019: Council Finance review
Sept. 2019: Enterprise Board adoption of Ordinance 007 authorizing a
loan agreement with U.S. Bank National Association
Today
• Adoption of updated loan agreement with U.S. Bank National
Association
9
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Packet Pg. 74
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
10
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Packet Pg. 75
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Capital Stack Summary
Capital Type Provider Term Rate Amount
Internal & Grant
Previously authorized Light & Power
reserves
Ongoing 0% $1,600,000
Bloomberg Philanthropies Grant 0% $688,350
Colorado Energy Office – Grant Grant 0% $200,000
Internal Subtotal $2,488,350
External Market
Colorado Energy Office – Loan 15 year 0% Up to $800,000
U.S. Bank 5 & 10 year 76% of Prime
(3.61% Currently)
Up to $2,500,000
In-State Commercial Bank 15 year 10-year US Treasury +
2.75% (4.50% Currently)
Up to $1,500,000
External Subtotal $4,800,000
Total $7,288,350 11
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Packet Pg. 76
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
2018 Bloomberg Mayors Challenge
• 300+ cities
• 9 winners
• Each awarded $1M to implement their winning idea
• Cities identified innovative solutions to solve challenging
issues facing their community
• Our idea:
• Energy efficiency
• Low-to-moderate income renters
• Study health and wellbeing impacts
of efficiency upgrades
• Attractive financing options
12
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Packet Pg. 77
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Simultaneous Solutions
13
Simultaneous Solutions
13
Indoor air
quality/health
Energy
efficiency
Rental split
incentive
On-bill
financing
Third-party
capital
Partnerships
Innovation
Epic
Homes
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Packet Pg. 78
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Programmatic History
• 2010: Fort Collins establishes Home
Efficiency Program (HEP)
• 2013: Fort Collins establishes on-bill
financing
• 2014: HEP transitions to Efficiency Works
Homes at Platte River
• 2016: Efficiency Works Neighborhoods
pilot
• 2017: Fort Collins enters the Bloomberg
Mayors Challenge
• 2018: Fort Collins establishes Epic
Homes and wins Mayors Challenge
14
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Packet Pg. 79
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Capital Recruitment Process To-Date
• Feb. – Nov. 2018: Multiple meetings held with Investment Banks, Hedge Funds,
Impact Investing Firms and Local and Regional banks
• Grant capital received from Bloomberg and Colorado Energy Office (CEO)
• Dec. 2018: External Capital RFP #8842 for Epic Loan issued
• Jan 2019: Negotiations begun with RFP respondents
• 1 National Bank
• 2 Regional Banks (Local and Upper Midwest)
• Brokered discussions with Colorado Clean Energy Fund
• Connections with impact investors via Bloomberg
• Colorado Energy Office up to $1M loan
15
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Packet Pg. 80
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Risk Mitigation Techniques
• Interest rate risk
• Rate-lock options during the 2-year variable windows (5- and 10-year facility)
• Targeted 100 basis point spread between cost of capital and product
• Respond to rapid market changes with timely updates to Epic rates
• Freeze new Epic customer offerings, as necessary
• Customer demand risk
• 2-year line of credit model matches principal borrowed vs. Epic loans
• If undrawn amounts remain at end of 2-years, City may pursue renewal, draw
remaining amounts, or close out the line(s)
• Customer default risk
16
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Packet Pg. 81
Attachment: Powerpoint presentation (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
-1-
ORDINANCE NO. 008
OF THE CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE
AMENDING ITS ORDINANCE NO. 007 WHICH AUTHORIZED A LOAN
AGREEMENT WITH U.S. BANK NATIONAL ASSOCIATION TO
PROVIDE FUNDING FOR THE EPIC LOAN PROGRAM
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and
existing home rule municipality of the State of Colorado, created and operating pursuant to
Article XX of the Constitution of the State of Colorado and the home rule charter of the City (the
“Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that
the Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise
of the City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the
Utility as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of
the Municipal Code of the City of Fort Collins (the “Code”); and
WHEREAS, pursuant to Section 19.3(b) and Code Section 26-392, the Council has
authorized the Enterprise, by and through the Council sitting as the board of the Enterprise (the
“Board”), to issue, by ordinance, revenue and refunding securities and other debt; and
WHEREAS, the City has established a program to assist certain customers of the Utility
in financing home energy efficiency and renewable energy improvements (the “Epic Program”)
by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, on September 17, 2019, the Board adopted on second reading Ordinance
No. 007 (“Ordinance No. 007”) authorizing the Enterprise to finance Epic Loans (the “Project”)
by entering into the loan agreement attached as Exhibit A to Ordinance No. 007 (the “Loan
Agreement”) with U.S. Bank National Association (the “Bank”) pursuant to which the Bank will
loan the Enterprise an amount of not to exceed $2,500,000 (the “Loan”) for such purposes, and
to issue a promissory note to the Bank to evidence the Enterprise’s repayment obligations under
the Loan Agreement (the “Note”); and
WHEREAS, since the Board’s approval of Ordinance No. 007, the Bank has requested
that Section 2.07 of the Loan Agreement and the “Form of Advance Request” attached as Exhibit
B to the Loan Agreement be amended to provide that as a precondition of the Enterprise
exercising its option to convert the variable-rate line-of-credit provided under the Loan
Agreement to a fix-rate and fixed-term loan, the Enterprise’s Senior Debt must be rated in one of
the four highest rating categories of a nationally recognized organization which regularly rates
obligations such as the Senior Debt (the “Ratings Amendment”) ; and
WHEREAS, the Enterprise’s Senior Debt is currently rated by Moody’s as AA-, which is
Moody’s second highest rating category; and
Packet Pg. 82
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WHEREAS, it is also proposed that the definition of “Authorized Person” in Article I of
the Loan Agreement be amended to clarify that the President of the Enterprise and any individual
authorized by the President to act as an “Authorized Person” under the Loan Agreement are
each, along with the Enterprise’s Treasurer, an “Authorized Person” under the Loan Agreement
(the “Definition Amendment”); and
WHEREAS, the Ratings Amendment and the Definition Amendment have been made to
Loan Agreement attached as Exhibit A to this Ordinance, but otherwise the Loan Agreement
remains unchanged as approved in Ordinance No. 007 (the “Amended Loan Agreement”); and
WHEREAS, the purpose of this Ordinance is to amend Ordinance No. 007 to replace the
Loan Agreement attached as Exhibit A to Ordinance No. 007 with the Amended Loan
Agreement and to otherwise ratify and reaffirm all other provisions, terms and conditions
Ordinance No. 007.
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF THE ELECTRIC
UTILITY ENTERPRISE OF THE CITY OF FORT COLLINS, as follows:
Section 1. Adoption of Recitals, Approvals, Authorizations, and
Amendments. The Board hereby adopts and incorporates herein by reference as operative
provisions of this Ordinance the recitals set forth above. The Amended Loan Agreement in
substantially the form attached hereto as Exhibit “A” is incorporated herein by reference and
hereby approved. The Enterprise shall enter into and perform its obligations under the Amended
Loan Agreement and Note (jointly, the “Financing Documents”) in the forms of such documents,
with such changes as are not inconsistent herewith and as are hereafter approved by the President
or the Treasurer. The President and Secretary are hereby authorized and directed to execute the
Financing Documents and to affix the seal of the Enterprise thereto, and further to execute and
authenticate such other documents or certificates as are deemed necessary or desirable in
connection therewith. The Financing Documents shall be executed in substantially the forms
approved at this meeting. The execution of any instrument or certificate or other document in
connection with the matters referred to herein by the President, the Secretary, the Treasurer, any
member of the Board, or by other appropriate officers of the Enterprise, shall be conclusive
evidence of the approval by the Enterprise of such instrument.
Section 2. Ratification and Approval of Prior Actions. All actions heretofore
taken by the officers of the Enterprise and members of the Board, not inconsistent with the
provisions of this Ordinance, relating to the Financing Documents, or actions to be taken in
respect thereof, are hereby ratified, approved, and confirmed.
Section 3. 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 4. Ordinance Irrepealable. After the Financing Documents are
executed and delivered, this Ordinance shall constitute an irrevocable contract between the
Enterprise and the Bank and shall be and remain irrepealable until the Loan and the interest
Packet Pg. 83
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thereon, as applicable, shall have been fully paid, satisfied, and discharged. No provisions of any
constitution, statute, charter, ordinance, resolution or other measure enacted after the Financing
Documents are executed and delivered shall in any manner be construed as impairing the
obligations of the Enterprise to keep and perform the covenants contained in this Ordinance.
Section 5. Disposition. A true copy of this Ordinance, as adopted by the
Board, shall be numbered and recorded on the official records of the Board and its adoption and
publication shall be authenticated by the signatures of the President and the Secretary, and by a
certificate of the publisher.
Section 6. Effective Date. This Ordinance shall take effect on the tenth day
following its adoption.
Introduced, considered favorably on first reading and ordered published this 19th day of
November 2019, and to be presented for final passage on the 3rd day of December 2019.
______________________________
President
ATTEST:
________________________
Secretary
Passed and adopted on final reading this 3rd day of December 2019.
______________________________
President
ATTEST:
________________________
Secretary
Packet Pg. 84
LOAN AGREEMENT
by and between
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
and
U.S. BANK NATIONAL ASSOCIATION
Relating to:
Not to exceed $2,500,000 2019 Taxable Subordinate Lien Revenue Note
Dated as of [Closing Date], 2019
EXHIBIT A
1
Packet Pg. 85
Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
TABLE OF CONTENTS
Page
i
ARTICLE I DEFINITIONS ............................................................................................................2
ARTICLE II LOAN .........................................................................................................................7
Section 2.01. Loan. ..................................................................................................................7
Section 2.02. Interest Rate; Interest Payments; Principal Payments. ......................................8
Section 2.03. Costs, Expenses and Taxes ..............................................................................10
Section 2.04. Pledge ...............................................................................................................11
Section 2.05. Conditions to Closing ......................................................................................11
Section 2.06. Procedure for Requesting and Funding Advances. ..........................................12
Section 2.07. Conversion to Term Loan ................................................................................13
ARTICLE III FUNDS AND ACCOUNTS ...................................................................................14
Section 3.01. Light and Power Fund ......................................................................................14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE ...............14
Section 4.01. Due Organization .............................................................................................14
Section 4.02. Power and Authorization .................................................................................14
Section 4.03. No Legal Bar ....................................................................................................14
Section 4.04. Consents ...........................................................................................................14
Section 4.05. Litigation ..........................................................................................................15
Section 4.06. Enforceability ...................................................................................................15
Section 4.07. Changes in Law ................................................................................................15
Section 4.08. Financial Information and Statements .............................................................15
Section 4.09. Accuracy of Information ..................................................................................15
Section 4.10. Financing Documents ......................................................................................15
Section 4.11. Regulations U and X ........................................................................................15
Section 4.12. Default, Etc ......................................................................................................16
Section 4.13. Sovereign Immunity.........................................................................................16
Section 4.14. No Filings.........................................................................................................16
Section 4.15. Outstanding Debt .............................................................................................16
ARTICLE V COVENANTS OF THE ENTERPRISE ..................................................................16
Section 5.01. Performance of Covenants, Authority .............................................................16
Section 5.02. Contractual Obligations ...................................................................................17
Section 5.03. Further Assurances...........................................................................................17
Section 5.04. Conditions Precedent .......................................................................................17
Section 5.05. Rules, Regulations and Other Details. .............................................................17
Section 5.06. Payment of Governmental Charges .................................................................17
Section 5.07. Protection of Security ......................................................................................18
Section 5.08. Prompt Payment ...............................................................................................18
1
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
ii
Section 5.09. Use of Funds and Accounts .............................................................................18
Section 5.10. Other Liens.......................................................................................................18
Section 5.11. Reasonable and Adequate Charges ..................................................................18
Section 5.12. Adequacy and Applicability of Charges ..........................................................18
Section 5.13. Limitations Upon Free Service ........................................................................19
Section 5.14. Collection of Charges ......................................................................................19
Section 5.15. Maintenance of Records ..................................................................................19
Section 5.16. Accounting Principles ......................................................................................19
Section 5.17. Laws, Permits and Obligations ........................................................................19
Section 5.18. Bonding and Insurance ....................................................................................19
Section 5.19. Other Liabilities ...............................................................................................19
Section 5.20. Proper Books and Records ...............................................................................19
Section 5.21. Reporting Requirements. .................................................................................20
Section 5.22. Visitation and Examination..............................................................................20
Section 5.23. Additional Debt ................................................................................................20
ARTICLE VI INVESTMENTS .....................................................................................................21
Section 6.01. Permitted Investments Only .............................................................................21
ARTICLE VII EVENTS OF DEFAULT AND REMEDIES ........................................................21
Section 7.01. Events of Default .............................................................................................21
Section 7.02. Remedies ..........................................................................................................22
Section 7.03. Notice to Bank of Default ................................................................................23
Section 7.04. Additional Bank Rights ....................................................................................23
Section 7.05. Delay or Omission No Waiver .........................................................................23
Section 7.06. No Waiver of One Default to Affect Another; All Remedies Cumulative ......23
Section 7.07. Other Remedies ................................................................................................23
ARTICLE VIII MISCELLANEOUS ............................................................................................23
Section 8.01. Loan Agreement and Relationship to Other Documents .................................23
Section 8.02. Assignments, Participations, etc. by the Bank .................................................23
Section 8.03. Notices .............................................................................................................23
Section 8.04. Payments ..........................................................................................................24
Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability ........................24
Section 8.06. Copies; Entire Agreement; Modification .........................................................24
Section 8.07. Waiver of Jury Trial .........................................................................................25
Section 8.08. Attachments .....................................................................................................25
Section 8.09. No Recourse Against Officers and Agents ......................................................25
Section 8.10. Conclusive Recital ...........................................................................................25
Section 8.11. Limitation of Actions .......................................................................................25
Section 8.12. Pledge of Revenues ..........................................................................................25
Section 8.13. No Liability ......................................................................................................26
Section 8.14. No Waiver; Modifications in Writing ..............................................................26
Section 8.15. Payment on Non-Business Days ......................................................................26
1
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
iii
Section 8.16. Execution in Counterparts; Electronic Storage ................................................26
Section 8.17. Severability ......................................................................................................27
Section 8.18. Headings ..........................................................................................................27
Section 8.19. Waiver of Rules of Construction .....................................................................27
Section 8.20. Integration ........................................................................................................27
Section 8.21. Termination of Agreement ...............................................................................27
EXHIBIT A FORM OF 2019 NOTE ................................................................................ A-1
EXHIBIT B FORM OF ADVANCE REQUEST ..............................................................B-1
EXHIBIT C FORM OF CONVERSION NOTICE ............................................................C-1
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
LOAN AGREEMENT
THIS LOAN AGREEMENT (this “Agreement”) is made and entered into as of [Closing
Date], 2019, by and between CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise established and existing pursuant to the home rule
charter of the City of Fort Collins, Colorado (the “Enterprise”), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, in its capacity as lender (the “Bank”).
W I T N E S S E T H :
WHEREAS, the City of Fort Collins, Colorado (the “City”) is a duly organized and existing
home rule municipality of the State of Colorado, created and operating pursuant to Article XX of
the Constitution of the State of Colorado and the home rule charter of the City (the “Charter”); and
WHEREAS, the members of the City Council of the City (the “Council”) have been duly
elected and qualified; and
WHEREAS, Section 19.3(b) of the Charter Article V (“Section 19.3(b)”) provides that the
Council may, by ordinance establish the City’s electric utility (the “Utility”) as an enterprise of the
City; and
WHEREAS, pursuant to Section 19.3(b), the Council has heretofore established the Utility
as an enterprise of the City (the “Enterprise”) in ordinances codified in Section 26-392 of the Code
of the City of Fort Collins (“Section 26-392”); and
WHEREAS, pursuant to Section 19.3(b) and Section 26-392, the Council has authorized
the Enterprise, by and through the Council, sitting as the board of the Enterprise (the “Board”), to
issue revenue and refunding securities and other debt; and
WHEREAS, the Enterprise has established a program (the “Epic Program”) to assist certain
customers of the Utility in financing home energy efficiency and renewable energy improvements
by making loans to customers who are property owners (“Epic Loans”); and
WHEREAS, the Board has determined that in order to finance Epic Loans (the “Project”),
it is necessary and advisable and in the best interests of the Enterprise (i) to enter into this
Agreement with the Bank pursuant to which the Bank shall loan the Enterprise an amount of not
to exceed $2,500,000 (the “Loan”) for such purposes, and (ii) to issue a promissory note (the
“Note”) to the Bank to evidence the Enterprise’s repayment obligations under this Agreement; and
WHEREAS, the Enterprise has previously issued its “City of Fort Collins, Colorado,
Electric Utility Enterprise, Tax-Exempt Revenue Bonds, Series 2018A” (the “2018A Bonds”) and
its “City of Fort Collins, Colorado, Electric Utility Enterprise, Taxable Revenue Bonds, Series
2018B” (the “2018B Bonds” and, together with the 2018A Bonds, the “2018 Bonds”) which are
payable from a secured by a lien on the Net Pledged Revenues (as herein defined); and
WHEREAS, except for the 2018 Bonds, neither the City nor the Enterprise has pledged or
hypothecated the Gross Net Pledged Revenues (as herein defined) to the payment of any bonds or
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
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for any other purpose, with the result that the Net Pledged Revenues may now be pledged lawfully
and irrevocably to the payment of the Loan which pledge will be subordinate to the pledge of Net
Pledged Revenues to the payment of the 2018 Bonds; and
WHEREAS, the Bank is willing to enter into this Agreement and to make the Loan to the
Enterprise pursuant to the terms and conditions stated below; and
WHEREAS, the Loan shall be payable from and secured by the Net Pledged Revenues as
more fully set forth herein;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS
Words and terms defined in the recitals hereof, as hereby supplemented and amended, shall
have the same meanings herein or therein assigned to them, unless the context or use indicates
another meaning or intent, and except to the extent amended by the definitions hereinafter set forth.
In addition, the following terms shall have the meanings set forth herein:
“2018 Bond Ordinance” means the ordinance of the Enterprise which provides for the
issuance and delivery of the 2018A Bonds and 2018B Bonds.
“2018A Bonds” means the Enterprise’s Tax-Exempt Revenue Bonds, Series 2018A.
“2018B Bonds” means the Enterprise’s Taxable Revenue Bonds, Series 2018B.
“2019 Note” or “Note” means the City of Fort Collins, Colorado, Electric Utility
Enterprise not to exceed $2,500,000 2019 Taxable Subordinate Lien Revenue Note evidencing the
Loan from the Enterprise, as maker, to the Bank, as payee.
“Advance” means a disbursement of proceeds of the Unfunded Portion of the Loan
pursuant to the terms hereof.
“Advance Maturity Date” means the second anniversary of the Closing Date.
“Advance Period” means the period commencing on the date of the Closing Date and
terminating on the second anniversary of the Closing Date unless terminated or extended as
provided herein.
“Advance Termination Date” means the earlier to occur of (a) the Full Funding Date; (b)
the date which is the last day of the Advance Period or (c) a date determined by the Enterprise and
provided in writing to the Bank.
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“Authorized Person” means the President of the Enterprise or the Treasurer of the
Enterprise and also means any other individual authorized by the President to act as an Authorized
Person hereunder.
“Authorizing Ordinance” means the Ordinance adopted by the Board on September 17,
2019 authorizing the Enterprise to finance the Project, enter into the Loan and execute and deliver
the Note, this Agreement, and the other Financing Documents.
“Bank” means U.S. Bank National Association, a national banking association, in its
capacity as lender of the Loan.
“Business Day” means any day of the week on which the Bank is conducting its banking
operations nationally and on which day the Bank’s offices are open for business in Denver,
Colorado.
“Capital Improvements” means the acquisition of land, easements, facilities, and
equipment (other than ordinary repairs and replacements), and those property improvements or
any combination of property improvements which will constitute enlargements, extensions or
betterments to the System and will be incorporated into the System.
“Closing” means the date of the execution and delivery of the Note, this Agreement, and
the other Financing Documents by the respective parties thereto.
“Closing Date” means date of the Closing for the Loan.
“Conversion Notice” means a notice of a conversion pursuant to Sections 2.07, which shall
be substantially in the form of Exhibit C.
“Cost of Funds” means the rate at which Bank would be able to borrow funds of
comparable amounts in the Money Markets for a period equal to the term of a Term Loan, adjusted
for any reserve requirement and any subsequent costs arising from a change in government
regulation; such rate rounded up to the nearest one-eighth percent.
“C.R.S.” means the Colorado Revised Statutes, as amended and supplemented as of the
date hereof.
“Debt” means, without duplication, all of the following obligations of the Enterprise for
the payment of which the Enterprise has promised or is required to pay from the Net Pledged
Revenues: (a) borrowed money of any kind; (b) obligations evidenced by bonds, debentures, notes
or similar instruments; (c) obligations upon which interest charges are customarily paid; (d)
obligations arising from guarantees made by the Enterprise; (e) obligations as an account party in
respect of letters of credit and bankers’ acceptances or similar obligations issued in respect of the
Enterprise; and (f) obligations evidenced by any interest rate exchange agreement; provided that
notwithstanding the foregoing, the term “Debt” does not include obligations issued for any
purpose, the repayment of which is contingent upon the Enterprise’s annual determination to
appropriate moneys therefore.
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“Default Interest Rate” means a rate per annum equal to the greater of the Interest Rate
plus 3% or the Maximum Rate.
“Electronic Notification” means telecopy, facsimile transmissions, email transmissions
or other similar electronic means of communication providing evidence of transmission.
“Event of Default” has the meaning set forth in Section 7.01 hereof.
“Financing Documents” means this Agreement, the Note, the Authorizing Ordinance, and
any other document or instrument required or stated to be delivered hereunder or thereunder, all
in form and substance satisfactory to the Bank.
“Fiscal Year” means the 12 months commencing January 1 of any year and ending
December 31 of such year.
“Full Funding Date” means the date on which, if at all, the aggregate amount of all
Advances equals the Maximum Advance Amount.
“Gross Pledged Revenues” means all rates, fees, charges and revenues derived directly or
indirectly by the City from the operation and use of and otherwise pertaining to the System, or any
part thereof, whether resulting from Capital Improvements or otherwise, and includes all rates,
fees, charges and revenues received by the City from the System, including without limitation:
(i) All rates, fees and other charges for the use of the System, or for any service
rendered by the City or the Enterprise in the operation thereof, directly or indirectly, the availability
of any such service, or the sale or other disposal of any commodities derived therefrom, including,
without limitation, connection charges, but:
(a) Excluding any moneys borrowed and used for the acquisition of Capital
Improvements or for the refunding of securities, and all income or other gain from any investment
of such borrowed moneys; and
(b) Excluding any moneys received as grants, appropriations or gifts from the Federal
Government, the State, or other sources, the use of which is limited by the grantor or donor to the
construction of Capital Improvements, 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; and
(ii) All income or other gain from any investment of Gross Pledged Revenues
(including without limitation the income or gain from any investment of all Net Pledged Revenues,
but excluding borrowed moneys and all income or other gain thereon in any project fund,
construction fund, reserve fund, or any escrow fund for any Parity Bonds payable from Net
Pledged Revenues heretofore or hereafter issued and excluding any unrealized gains or losses on
any investment of Gross Pledged Revenues); and
(iii) All income and revenues derived from the operation of any other utility or other
income-producing facilities added to the System and to which the pledge and lien herein provided
are lawfully extended by the Board or by the qualified electors of the City; and
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(iv) All revenues which the Enterprise receives from the repayment of Epic Loans.
“Initial Advance” means the first Advance made by the Bank to the Enterprise pursuant to
Section 2.06 hereof.
“Interest Payment Date” means, for Advances, the first Business Day of each month,
commencing the first such day occurring after the Initial Advance, and continuing through and
including the Advance Maturity Date and, for Term Loans, the first Business Day of each month,
commencing the first such day occurring after an Advance has been converted to a Term Loan
continuing through and including the Term Loan Maturity Date.
“Interest Rate” means for Advances, a variable rate of interest equal to 76% of the Prime
Rate, and for Term Loans, a fixed rate of interest determined on the date an Advance converts to
a Term Loan pursuant to Section 2.07 hereof.
“Light and Power Fund” means the special fund of that name heretofore created by the
City pursuant to Section 8-77 of the Code of the City of Fort Collins .
“Loan” means all Advances and Term Loans.
“Loan Amount” means, with respect to the Loan, a maximum amount of Two Million Five
Hundred Thousand and 00/100 U.S. Dollars ($2,500,000), or such lesser amount that has been
Advanced by the Bank from time to time in accordance with the terms and provisions of this
Agreement.
“Material Adverse Effect” means a material adverse effect on (a) the business, property,
liabilities (actual and contingent), operations or condition (financial or otherwise), results of
operations, or prospects of the Enterprise taken as a whole, (b) the ability of the Enterprise to
perform its obligation under this Agreement, or (c) the validity or enforceability of this Agreement
or the rights or remedies of the Bank under this Agreement.
“Maturity Date” means for Advances the Advance Maturity Date and for Term Loans the
Term Loan Maturity Date.
“Maximum Advance Amount” means, with respect to the 2019 Note, $2,500,000.
“Maximum Rate” has the meaning set forth in Section 2.02(i) hereof.
“Money Markets” refers to one or more wholesale funding markets available to and
selected by Bank, including negotiable certificates of deposit, commercial paper, Eurodollar
deposits, bank notes, federal funds, interest rate swaps or others. The Enterprise acknowledges that
Bank is under no obligation to actually purchase and/or match funds to determine the Interest Rate
for any Term Loan.
“Net Pledged Revenues” means the Gross Pledged Revenues remaining after the payment
of the Operation and Maintenance Expenses of the System.
“Non-Use Fee” has the meaning set forth in Section 2.01(d) hereof.
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“Operation and Maintenance Expenses” means such reasonable and necessary current
expenses of the City, paid or accrued, of operating, maintaining and repairing the System
including, except as limited by contract or otherwise limited by law, without limiting the generality
of the foregoing:
(a) All payments made to the Platte River Power Authority, a wholesale electricity
provider that acquires, constructs and operates generation capacity for the City, or its successor in
function;
(b) Engineering, auditing, legal and other overhead expenses directly related and
reasonably allocable to the administration, operation and maintenance of the System;
(c) Insurance and surety bond premiums appertaining to the System;
(d) The reasonable charges of any paying agent, registrar, transfer agent, depository or
escrow agent appertaining to the System or any bonds or other securities issued therefor;
(e) Annual payments to pension, retirement, health and hospitalization funds
appertaining to the System;
(f) Any taxes, assessments, franchise fees or other charges or payments in lieu of the
foregoing;
(g) Ordinary and current rentals of equipment or other property;
(h) Contractual services, professional services, salaries, administrative expenses, and
costs of labor appertaining to the System and the cost of materials and supplies used for current
operation of the System;
(i) The costs incurred in the billing and collection of all or any part of the Gross
Pledged Revenues; and
(j) Any costs of utility services furnished to the System by the City or otherwise.
“Operation and Maintenance Expenses” does not include:
(a) Any allowance for depreciation;
(b) Any costs of reconstruction, improvement, extensions, or betterments, including
without limitation any costs of Capital Improvements;
(c) Any accumulation of reserves for capital replacements;
(d) Any reserves for operation, maintenance, or repair of the System;
(e) Any allowance for the redemption of any bonds or other securities payable from
the Net Pledged Revenues or the payment of any interest thereon;
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(f) Any liabilities incurred in the acquisition of any properties comprising the System;
and
(g) Any other ground of legal liability not based on contract.
“Parity Debt” means any obligations of the Enterprise payable from and with a lien on the
Net Pledged Revenues on a parity basis with the 2019 Note.
“Permitted Investments” means any investment or deposit permissible under then
applicable law for governmental entities such as the Enterprise.
“Person” means an individual, a corporation, a partnership, an association, a joint venture,
a trust, an unincorporated organization or any other entity or organization, including a government
or political subdivision or an agency or instrumentality thereof.
“Prime Rate” means a variable per annum rate of interest equal at all times to the rate of
interest established and quoted by the Bank as its “Prime Rate,” “Base Rate” or “Reference Rate,”
such rate to change contemporaneously with each change in such established and quoted rate,
provided that it is understood that the Prime Rate shall not necessarily be representative of the rate
of interest actually charged by the Bank on any loan or class of loans.
“Principal Payment Date” means the Maturity Date.
“Senior Debt” means the 2018A Bonds, the 2018B Bonds, and any obligations of the
Enterprise payable from and with a lien on the Net Pledged Revenues on a basis superior to the
2019 Note.
“Supplemental Public Securities Act” means Title 11, Article 57, C.R.S.
“System” means the City’s electric distribution system that furnishes electricity and related
services and excludes the City’s broadband system using fiber-optic technology. The System
consists of all properties, real, personal, mixed and otherwise, now owned or hereafter acquired by
the City, through purchase, construction and otherwise, and used in connection with such system
of the City, and in any way pertaining thereto and consisting of all properties, real, personal, mixed
or otherwise, now owned or hereafter acquired by the City, whether situated within or without the
City boundaries, used in connection with such system of the City, and in any way appertaining
thereto, including all present or future improvements, extensions, enlargements, betterments,
replacements or additions thereof or thereto and administrative facilities.
“Term Loan” has the meaning specified in Section 2.07.
“Term Loan Maturity Date” means the maturity date of a Term Loan as determined
pursuant to Section 2.07.
“Unfunded Portion” means, as of any date, an amount equal to the Maximum Advance
Amount, less the total amount of all Advances funded as of such date, less any reduction of the
Unfunded Portion made pursuant to Section 2.01 hereof.
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
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ARTICLE II
LOAN
Section 2.01. Loan.
(a) Agreement to Make Loan. The Bank hereby agrees to extend the Loan to
the Enterprise in the maximum aggregate principal amount of $2,500,000 subject to the terms and
conditions of this Agreement. The Loan shall be evidenced by the 2019 Note, the form of which
is set forth in Exhibit A attached hereto.
(b) Advances. Subject to the terms and conditions of this Agreement, including
without limitation satisfaction of the conditions set forth in Section 2.06 hereof and upon delivery
to the Bank of an Advance Request in the form of Exhibit B hereto, the Bank hereby agrees to
make Advances to the Enterprise from time to time during the Advance Period in the aggregate
original principal amounts not to exceed $2,500,000 with respect to the Loan (as more particularly
defined in Article I hereof, the “Maximum Advance Amount”). On the Advance Termination
Date, the Unfunded Portion shall be reduced to zero and no further Advances will be made
hereunder.
(c) Note. The Loan shall be evidenced by the 2019 Note. On the Closing Date,
the Enterprise shall execute and deliver the 2019 Note payable to the Bank, in substantially the
form set forth in Exhibit A attached hereto. The Enterprise shall maintain a book for the
registration of ownership of the 2019 Note. Upon any transfer of the 2019 Note as provided herein,
such transfer shall be entered on such registration books of the Enterprise.
With respect to each Advance funded by the Bank from time to time hereunder, the
Bank shall maintain, in accordance with its usual practices, records evidencing the indebtedness
resulting from each such Advance and the amounts of principal and interest payable and paid from
time to time hereunder. In any legal action or proceeding in respect of any Advance or the Loan,
the entries made in such records shall be conclusive evidence (absent manifest error) of the
existence and amounts of the obligations therein recorded. The Note shall evidence the obligation
of the Enterprise to pay the Loan and shall evidence the obligation of the Enterprise to pay the
principal amount of each Advance funded by the Bank hereunder, as such amounts are outstanding
from time to time, and accrued interest
(d) Non-Use Fees The Enterprise shall pay to the Bank a nonrefundable fee
(the “Non-Use Fee”), which shall be in the amount of 0.30% of the weighted average balance of
the Unfunded Portion from the Closing Date to the Advance Termination Date. The Non-Use Fee
shall be calculated and paid on the Advance Termination Date.
(e) Application of Loan Proceeds. The Enterprise shall apply the proceeds of
each Advance to pay the costs of the Project.
(f) Special Obligations. All amounts due under this Agreement or the 2019
Note shall be payable and collectible solely out of the Net Pledged Revenues, which revenues are
hereby so pledged which pledge is in all respects subordinate to the pledge and lien thereon of the
Senior Debt at any time outstanding. The Bank may not look to any general or other fund for the
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payment of such amounts; this Agreement and the 2019 Note shall not constitute a debt or
indebtedness within the meaning of any constitutional, charter, or statutory provision or limitation;
and this Agreement and the 2019 Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute special obligations of the Enterprise. No statutory or
constitutional provision enacted after the execution and delivery of this Agreement or the 2019
Note shall in any manner be construed as limiting or impairing the obligation of the Enterprise to
comply with the provisions of this Agreement or the 2019 Note. None of the covenants,
agreements, representations and warranties contained herein or in the 2019 Note shall ever impose
or shall be construed as imposing any liability, obligation or charge against the Enterprise or the
City (except the Net Pledged Revenues and the special funds pledged therefor), or against its
general credit, or as payable out of its general fund or out of any funds derived from taxation or
out of any other revenue source (other than those pledged therefor). The payment of the amounts
due under this Agreement or the 2019 Note is not secured by an encumbrance, mortgage or other
pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No property
of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or taken in
payment of such amounts.
Section 2.02. Interest Rate; Interest Payments; Principal Payments.
(a) Interest Rate. The unpaid principal balance of the Loan will bear interest
at the Interest Rate. All interest due and payable under this Agreement shall be calculated on the
basis of a 360-day year of twelve 30-day months. Interest payments on the Loan shall be due on
each Interest Payment Date and on the Maturity Date.
(b) Default Interest Rate. Immediately upon the occurrence of an Event of
Default or upon the Maturity Date, interest shall begin to accrue on all principal amounts owing
on the Loan at the Default Interest Rate for so long as such Event of Default continues and remains
uncured or, if after the Maturity Date, for so long as amounts due on the Loan remain unpaid.
(c) Principal Payments. Repayment of principal amounts owing under the
Loan shall occur on each Principal Payment Date.
(d) Prepayment. The Loan may be prepaid, in whole or in part, at the option
of the Enterprise, at a prepayment price equal to the principal amount so prepaid, plus accrued
interest to the prepayment date, with no prepayment fee. Any prepayment under this paragraph
shall only be made after the Enterprise gives two Business Days written notice to the Bank.
(e) Obligations Unconditional. The Enterprise’s obligation to repay the Loan
hereunder and all of its other obligations under this Agreement shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Enterprise may have against the Bank or any other Person, including, without limitation,
any defense based on the failure of any nonapplication or misapplication of the proceeds of the
Loan hereunder, and irrespective of the legality, validity, regularity or enforceability of all or any
of the Financing Documents, and notwithstanding any amendment or waiver of (other than an
amendment or waiver signed by the Bank explicitly reciting the release or discharge of any such
obligation), or any consent to, or departure from, all or any of the Financing Documents or any
exchange, release, or nonperfection of any collateral securing the obligations of the Enterprise
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hereunder and any other circumstances or happening whatsoever, whether or not similar to any of
the foregoing; provided, however, that nothing contained in this Section 2.02(e) shall abrogate or
otherwise affect the rights of the Enterprise pursuant to Section 8.05 hereof.
(f) Waivers, Etc. To the full extent permitted by law: (i) the Enterprise hereby
waives (A) presentment, demand, notice of demand, protest, notice of protest, notice of dishonor
and notice of nonpayment; (B) to the extent the Bank is not in default hereunder, the right, if any,
to the benefit of, or to direct application of, any security hypothecated to the Bank until all
obligations of the Enterprise to the Bank hereunder, howsoever arising, have been paid; (C) the
right to require the Bank to proceed against the Enterprise hereunder, or against any Person under
any guaranty or similar arrangement, or under any agreement between the Bank and any Person or
to pursue any other remedy in the Bank’s power; and (D) any defense arising out of the election
by the Bank to foreclose on any security by one or more non-judicial or judicial sales; (ii) the Bank
may exercise any other right or remedy, even though any such election operates to impair or
extinguish the Enterprise’s right to repayment from, or any other right or remedy it may have
against, any Person, or any security; and (iii) the Enterprise agrees that the Bank may proceed
against the Enterprise or any Person directly and independently of any other, and that any
forbearance, change of rate of interest, or acceptance, release or substitution of any security,
guaranty, or loan or change of any term or condition thereunder or under any Financing Document
(other than by mutual agreement between the Enterprise and the Bank) shall not in any way affect
the liability of the Enterprise hereunder.
(g) Manner of Payments. All interest, fees, and other payments to be made
hereunder by or on behalf of the Enterprise to the Bank shall be made, and shall not be considered
made until received, in United States dollars in immediately available funds. The Enterprise shall
make each payment hereunder in the manner and at the time necessary so that each such payment
is received by the Bank not later than 12:00 p.m., Colorado time, on the day when due in lawful
money of the United States of America in immediately available funds. Any payment received
after 12:00 p.m., Colorado time, shall be deemed made on the next succeeding Business Day. All
payments made hereunder by or on behalf of the Enterprise to the Bank shall be applied to such
amounts due hereunder and under the Financing Documents in the following order: first, to unpaid
Non-Use Fees, second, to accrued but unpaid interest, third, to principal and, fourth, to any other
amounts due hereunder.
(h) Default Interest Rate; Calculation of Interest and Fees. All interest and
fees due and payable under this Agreement shall be calculated on the basis of a 360-day year of
twelve 30-day months. Any sum due to the Bank and not paid when due and any sum due to the
Bank upon the occurrence or during the continuance of any Event of Default hereunder shall bear
interest at the Default Interest Rate.
(i) Maximum Interest Rate. If the interest due and payable on any obligation
hereunder computed at the applicable rate as provided in Section 2.02 hereof is in excess of 9.5%
(the “Maximum Rate”), the difference between what would have been the interest payable on such
amounts had they accrued interest at the rate provided in Section 2.02 and the Maximum Rate (the
“Interest Differential”) shall remain an obligation of the Enterprise. Notwithstanding anything
herein or in the Financing Documents to the contrary, if at any time there is an Interest Differential
owed to the Bank, any reduction in interest rate that would result from the application of the
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Maximum Rate to the Default Interest Rate, shall not reduce the rate of interest below the
Maximum Rate until the total amount due has been paid to the Bank as if the applicable rate
computed as provided in Section 2.02 hereof had at all times been utilized.
Section 2.03. Costs, Expenses and Taxes. The Enterprise agrees to pay all reasonable
costs and expenses actually incurred by the Bank in connection with (a) the preparation, execution
and delivery of this Agreement or any other documents, including the other Financing Documents,
which may be delivered by any party in connection with this Agreement and the other Financing
Document, and (b) the filing, recording, administration (other than normal, routine administration),
enforcement, transfer, amendment, maintenance, renewal or cancellation of this Agreement and
all amendments or modifications thereto (or supplements hereto), including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the Bank and independent public
accountants and other outside experts retained by the Bank in connection with any of the foregoing;
and. In addition, the Enterprise agrees to pay promptly all reasonable costs and expenses of the
Bank, including, without limitation, the actual, reasonable fees and expenses of external counsel,
for (i) any and all amounts which the Bank has paid relative to the Bank’s curing of any Event of
Default under this Agreement or any of the Financing Documents; (ii) the enforcement of this
Agreement or any of the Financing Documents; or (iii) any action or proceeding relating to a court
order, injunction, or other process or decree restraining or seeking to restrain the Bank from paying
any amount hereunder. Without prejudice to the survival of any other agreement of the Enterprise
hereunder, the agreements and obligations contained in this Section 2.03 shall survive the payment
in full of all amounts owing to the Bank hereunder.
Section 2.04. Pledge. The Enterprise hereby pledges, assigns and grants to the Bank a
lien in the Net Pledged Revenues, which is subordinate to the lien which is pledged to secure the
payment of Senior Debt, to secure its obligations to the Bank hereunder and under the other
Financing Documents. The lien of the Bank on the Net Pledged Revenues hereunder shall be
subject to no other liens except those liens granted on the Net Pledged Revenues to any Senior
Debt heretofore or hereafter issued in accordance with the terms hereof and the Subordinate Debt.
The Enterprise represents and warrants that, except for the Senior Debt, the Net Pledged Revenues
is not and shall not be subject to any other lien or encumbrance without the prior written consent
of the Bank except as otherwise permitted pursuant to this Agreement.
Section 2.05. Conditions to Closing. The Closing on the Loan is conditioned upon the
satisfaction of each of the following:
(a) all Financing Documents and other instruments applicable to the Loan are
in form and content satisfactory to the Bank and have been duly executed and delivered in form
and substance satisfactory to the Bank and shall have not been modified, amended or rescinded,
shall be in full force and effect on and as of the Closing Date and executed original or certified
copies of each thereof shall have been delivered to the Bank;
(b) the Bank has received a certified copy of the Authorizing Ordinance of the
Enterprise, which shall be in form and content satisfactory to the Bank and authorize the Enterprise
to finance the Project, obtain the Loan and perform all acts contemplated by this Agreement and
all other Financing Documents; and a certified copy of all other ordinances, resolutions and
proceedings taken by the Enterprise authorizing the Enterprise to finance the Project, obtain the
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Loan and the execution, delivery and performance of this Agreement and the other Financing
Documents and the transactions contemplated hereunder and thereunder, together with such other
certifications as to the specimen signatures of the officers of the Enterprise authorized to sign this
Agreement and the other Financing Documents to be delivered by the Enterprise hereunder and as
to other matters of fact as shall reasonably be requested by the Bank;
(c) the Enterprise has provided a certificate certifying that on the Closing Date
each representation and warranty on the part of the Enterprise contained in this Agreement and in
any other Financing Document is true and correct and no Event of Default, or event which would,
with the passage of time or the giving of notice, constitute an Event of Default, has occurred and
is continuing and no default exists under any other Financing Documents, or under any other
agreements by and between the Enterprise and the Bank and certifying as to such other matters as
the Bank might reasonably request;
(d) the Enterprise has provided a certificate certifying that the only Senior Debt
outstanding as of the Closing Date is the 2018A Bonds and the 2018B Bonds and that no Parity
Debt is outstanding as of the Closing Date;
(e) the Bank shall have received the opinion of Butler Snow LLP to the effect
that (i) the obligation of the Enterprise to pay the principal of and interest on the Loan constitutes
a valid and binding special obligation of the Enterprise payable solely from the Net Pledged
Revenues with a lien on the Net Pledged Revenues which is subordinate to the lien thereon of the
Senior Debt, and (ii) this Agreement and the Note are valid and binding obligations of the
Enterprise, enforceable against the Enterprise in accordance with their respective terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium, and
other similar laws affecting creditors’ rights generally, and by equitable principles, whether
considered at law or in equity;
(f) all proceedings taken in connection with the transactions contemplated by
this Agreement, and all instruments, authorizations and other documents applicable thereto, are
satisfactory to the Bank and its counsel;
(g) no law, regulation, ruling or other action of the United States, the State of
Colorado or any political subdivision or authority therein or thereof shall be in effect or shall have
occurred, the effect of which would be to prevent the Enterprise from fulfilling its obligations
under this Agreement or the other Financing Documents;
(h) all Bank counsel fees and any other fees and expenses due and payable in
connection with the execution and delivery of this Agreement shall have been paid by the
Enterprise upon execution and delivery of this Agreement;
(i) the Bank shall have been provided with the opportunity to review all
pertinent financial information regarding the Enterprise, agreements, documents, and any other
material information relating to the Enterprise or the Net Pledged Revenues or any other
component of the collateral securing the obligations of the Enterprise hereunder;
(j) all information provided by the Enterprise to the Bank is accurate in all
respects;
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(k) the Bank shall have received such other certificates, approvals, filings,
opinions and documents as shall be reasonably requested by the Bank;
(l) all other legal matters pertaining to the execution and delivery of this
Agreement and the other Financing Documents shall be reasonably satisfactory to the Bank.
Section 2.06. Procedure for Requesting and Funding Advances.
(a) Conditions to Funding Advances. No Advance shall be requested by the
Enterprise and the Bank shall have no obligation to honor an Advance Request except in
accordance with the provisions and upon fulfillment of the terms and conditions set forth in this
Agreement. The funding by the Bank of each Advance is conditioned upon the satisfaction of
each of the following, each of which shall be satisfactory in all respects to the Bank:
(i) Advance Frequency. Advance Requests may only be made during
the Advance Period and shall be submitted to the Bank no more than once in any calendar month,
unless permitted more frequently by the Bank. Advances shall be made in amounts of $75,000 or
more.
(ii) Representations and Warranties True; No Default. At the time any
Advance is to be made and as a result thereof, immediately thereafter, all representations and
warranties of the Enterprise set forth in Article IV are true and correct as though made on the date
of such Advance Request and on the date when such Advance is funded and no Event of Default
hereunder has occurred and is continuing and no litigation is then pending or threatened concerning
the Enterprise’s authority to pledge the Net Pledged Revenues as provided herein, and the
Enterprise shall deliver an executed certificate of an Authorized Person to such effect in connection
with each Advance in substantially the form of Exhibit B.
(iii) Payments Current. The Enterprise shall be current on all of its
obligations hereunder.
(iv) Advance Request. The Bank shall have received an Advance
Request from the Enterprise, the form of which is attached hereto as Exhibit B (each, an “Advance
Request”), signed by the Authorized Person of the Enterprise and containing the calculation of the
amount of such Advance requested by the Enterprise.
(v) Amount of Advance. The amount of the requested Advance, when
combined with the sum of all prior Advances made hereunder shall not exceed the Maximum
Advance Amount for the Loan. From each Advance the Bank will transfer amounts as specified
in each Advance Request.
(vi) Material Adverse Changes. Since December 31, 2018, there has
been no change in the business, property, prospects, condition (financial or otherwise) or results
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of operations of the Enterprise which could reasonably be expected to have a Material Adverse
Effect.
(vii) Other Conditions Precedent to Funding Each Advance. No
Advance shall be requested or made after the Advance Termination Date.
(b) Funding of Advances. Provided that the conditions set forth in Section
2.06(a) above are satisfied, within 2 days of receipt by the Bank of an Advance Request signed by
the Authorized Person, the Bank shall provide the amount of such Advance to the Enterprise at
such depository as the Enterprise may direct.
Section 2.07. Conversion to Term Loan. Provided that (i) no Event of Default shall
have occurred and be continuing (ii) all representations and certifications and agreements herein
are then true and correct, and (iii) the outstanding Senior Debt is rated in one of its four highest
rating categories by a national recognized organization which regularly rates obligations such as
the Senior Debt, the Enterprise may elect to convert all or a portion of the outstanding Advances
on or before the Advance Loan Maturity Date to one or more term loans, but not more than four
term loans (each a “Term Loan”) that shall be payable in full by no later than the 8th anniversary
of the Advance Loan Maturity Date. Such election shall be exercised by the Enterprise delivering
to the Bank a Conversion Notice, appropriately completed and signed by an Authorized Person, at
least three (3) Business Days prior to the Maturity Date. Each Term Loan shall be a fully
amortizing loan in approximately equal installments of principal and interest and shall mature on
the Term Loan Maturity Date specified in the Conversion Notice, which date shall be either the
3rd anniversary of the Advance Loan Maturity Date or the 8th anniversary of the Advance Loan
Maturity Date. Principal and interest on each Term Loan shall be payable on each Interest Payment
Date. The Interest Rate on a Term Loan shall be a fixed rate determined on the date an Advance
converts to a Term Loan and shall equal the Cost of Funds plus 1.65% for a Term Loan which
matures on the 3rd anniversary of the Advance Loan Maturity Date or the Cost of Funds plus
1.85% for a Term Loan which matures on the 8th anniversary of the Advance Loan Maturity Date.
The Enterprise and the Bank agree that the aggregate principal amount of all Advances which is
converted to a Term Loan shall be divided approximately equally between Term Loans which
mature on the 3rd anniversary of the Advance Loan Maturity Date and Term Loans which mature
on the 8th anniversary of the Advance Loan Maturity Date
ARTICLE III
FUNDS AND ACCOUNTS
Section 3.01. Light and Power Fund. So long as this Agreement is in effect, the entire
Gross Pledged Revenues, upon their receipt from time to time by the Enterprise, shall be set aside
and credited immediately to the Light and Power Fund. In each month, after making in full all
deposits or payments required in connection with the Senior Debt, the Enterprise shall pay to the
Bank from the Net Pledged Revenues remaining in the Light and Power Fund, the amounts due
under this Agreement and the Note.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously represents and warrants to the Bank as follows:
Section 4.01. Due Organization. The Enterprise is an enterprise of the City duly
organized and validly existing under Charter and Enterprise Ordinances.
Section 4.02. Power and Authorization. The Enterprise has all requisite power and
authority to own and convey its properties and to carry on its business as now conducted and as
contemplated to be conducted under the Financing Documents; to execute, deliver and to perform
its obligations under this Agreement and the other Financing Documents; and to cause the
execution, delivery and performance of the Financing Documents.
Section 4.03. No Legal Bar. To the best of the Enterprise’s knowledge, the Enterprise is
not in violation of any of the provisions of the laws of the State of Colorado or the United States
of America or any of the provisions of any order of any court of the State of Colorado or the United
States of America which would affect its existence, or its powers referred to in the preceding
Section 4.02. The execution, delivery and performance by the Enterprise of this Agreement and
of the other Financing Documents (a) will not violate any provision of any applicable law or
regulation or of any order, writ, judgment or decree of any court, arbitrator or governmental
authority; (b) will not violate any provisions of any document constituting, regulating or otherwise
affecting the operations or activities of the Enterprise; and (c) will not violate any provision of,
constitute a default under, or result in the creation, imposition or foreclosure of any lien, mortgage,
pledge, charge, security interest or encumbrance of any kind other than liens created or imposed
by the Financing Documents, on any of the revenues or other assets of the Enterprise which could
have a material adverse effect on the assets, financial condition, business or operations of the
Enterprise, on the Enterprise’s power to cause the Financing Documents to be executed and
delivered, or its ability to pay in full in a timely fashion the obligations of the Enterprise under this
Agreement or the other Financing Documents.
Section 4.04. Consents. The Enterprise has obtained all consents, permits, licenses and
approvals of, and has made all registrations and declarations with any governmental authority or
regulatory body required for the execution, delivery and performance by the Enterprise of this
Agreement and the other Financing Documents.
Section 4.05. Litigation. Except as disclosed in writing to the Bank, there is no action,
suit, inquiry or investigation or proceeding to which the Enterprise is a party, at law or in equity,
before or by any court, arbitrator, governmental or other board, body or official which is pending
or, to the best knowledge of the Enterprise, threatened in connection with any of the transactions
contemplated by this Agreement or the Financing Documents or against or affecting the assets of
the Enterprise, nor, to the best knowledge of the Enterprise, is there any basis therefor, wherein an
unfavorable decision, ruling or finding (a) would adversely affect the validity or enforceability of,
or the authority or ability of the Enterprise to perform its obligations under, the Financing
Documents; or (b) would, in the reasonable opinion of the Enterprise, have a materially adverse
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effect on the ability of the Enterprise to conduct its business as presently conducted or as proposed
or contemplated to be conducted.
Section 4.06. Enforceability. This Agreement and each other Financing Document
constitutes the legal, valid and binding special obligation of the Enterprise, enforceable against the
Enterprise in accordance with its terms (except as such enforceability may be limited by
bankruptcy, moratorium or other similar laws affecting creditors’ rights generally and provided
that the application of equitable remedies is subject to the application of equitable principles).
Section 4.07. Changes in Law. To the best knowledge of the Enterprise, there is not
pending any change of law which, if enacted or adopted could have a material adverse effect on
the assets, financial condition, business or operations of the Enterprise, on the Enterprise’s power
to enter into this Agreement or the other Financing Documents or its ability to pay in full in a
timely fashion the obligations of the Enterprise under this Agreement or the other Financing
Documents.
Section 4.08. Financial Information and Statements. The financial statements and
other information previously provided to the Bank or provided to the Bank in the future are or will
be complete and accurate and prepared in accordance with generally accepted accounting
principles. There has been no material adverse change in the Enterprise’s financial condition since
such information was provided to the Bank.
Section 4.09. Accuracy of Information. All information, certificates or statements given
to the Bank pursuant to this Agreement and the other Financing Documents will be true and
complete when given.
Section 4.10. Financing Documents. Each representation and warranty of the Enterprise
contained in any Financing Document is true and correct as of the Closing Date.
Section 4.11. Regulations U and X. The Enterprise is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within the meaning of
Regulation U or X issued by the Board of Governors of the Federal Reserve System); and no
proceeds of the Loan will be or have been used to extend credit to others for the purpose of
purchasing or carrying any margin stock.
Section 4.12. Default, Etc. The Enterprise is not in default in the performance,
observance, or fulfillment of any of the obligations, covenants or conditions contained in any
Financing Document or other ordinance, resolution, agreement or instrument to which it is a party
which would have a material adverse effect on the ability of the Enterprise to perform its
obligations hereunder or under the other Financing Documents, or which would affect the
enforceability hereof or thereof.
Section 4.13. Sovereign Immunity. The Enterprise represents that, under Section 24-10-
106, C.R.S., its governmental immunity is limited to claims for injury which lie in tort or could lie
in tort. Under existing law, the Enterprise is not entitled to raise the defense of sovereign immunity
in connection with any legal proceedings to enforce its contractual obligations under the Financing
Documents, or the transactions contemplated hereby or thereby including, without limitation, the
payment of the principal of and interest on the Note.
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Section 4.14. No Filings. No filings, recordings, registrations or other actions are
necessary to create and perfect the pledges provided for herein; all obligations of the Enterprise
hereunder are secured by the lien and pledge provided for herein; and the liens and pledges
provided for herein constitute valid prior liens subject to no other liens.
Section 4.15. Outstanding Debt. Upon the execution and delivery of this Agreement,
except for the Financing Documents and the 2018A Bonds and 2018B Bonds, the Enterprise will
have no other Debt outstanding payable from or secured by the Net Pledged Revenues or any
portion thereof. The Enterprise represents and warrants that it will incur additional Debt only in
accordance with the provisions of Section 5.23 of this Agreement.
ARTICLE V
COVENANTS OF THE ENTERPRISE
While any obligations hereunder or under any of the other Financing Documents are unpaid
or outstanding, the Enterprise continuously warrants and agrees as follows:
Section 5.01. Performance of Covenants, Authority. The Enterprise covenants that it
will faithfully perform and observe at all times any and all covenants, undertakings, stipulations,
and provisions contained in the Authorizing Ordinance, this Agreement, the Note, the other
Financing Documents and all its proceedings pertaining thereto as though such covenants,
undertakings, stipulations, and provisions were set forth in full herein (for the purpose of this
provision the Financing Documents shall be deemed to continue in full force and effect
notwithstanding any earlier termination thereof so long as any obligation of the Enterprise under
this Agreement shall be unpaid or unperformed). The Enterprise covenants that it is duly
authorized under the constitution and laws of the State of Colorado, including, particularly and
without limitation, the Charter and the Enterprise Ordinances, to obtain the Loan and to execute
and deliver the Note, this Agreement, and the other Financing Documents, and that all action on
its part for the execution and delivery of the Note, this Agreement, and the other Financing
Documents has been duly and effectively taken and will be duly taken as provided herein, and that
the Loan, the Note, this Agreement, and the other Financing Documents are and will be valid and
enforceable obligations of the Enterprise according to the terms hereof and thereof.
Section 5.02. Contractual Obligations. The Enterprise shall perform all contractual
obligations undertaken by it under any agreements relating to the Loan, the Gross Pledged
Revenues, the Project, or the System, or any combination thereof.
Section 5.03. Further Assurances. At any and all times the Enterprise shall, so far as it
may be authorized by law, pass, make, do, execute, acknowledge, deliver and file or record all and
every such further instruments, acts, deeds, conveyances, assignments, transfers, other documents
and assurances as may be reasonably necessary or desirable for better assuring, conveying,
granting, assigning and confirming all and singular the rights, the Net Pledged Revenues and other
moneys and accounts hereby pledged or assigned, or intended so to be, or which the Enterprise
may hereafter become bound to pledge or to assign, or as may be reasonable and required to carry
out the purposes of this Agreement and to comply with any instrument of the Enterprise
amendatory thereof, or supplemental thereto. The Enterprise, acting by and through its officers,
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or otherwise, shall at all times, to the extent permitted by law, defend, preserve and protect the
pledge of the Net Pledged Revenues and other moneys and accounts pledged hereunder and all the
rights of the Bank hereunder against all claims and demands of all Persons whomsoever.
Section 5.04. Conditions Precedent. Upon the date of the execution and delivery of this
Agreement, all conditions, acts and things required by the Federal or State Constitution, the
Charter, the Supplemental Act, the Enterprise Ordinances, or any other applicable law to exist, to
have happened and to have been performed precedent to the execution and delivery of this
Agreement shall exist, have happened, and have been performed; and the Bonds, together with all
other obligations of the Enterprise, shall not contravene any debt or other limitation prescribed by
the State Constitution.
Section 5.05. Rules, Regulations and Other Details. The Enterprise shall observe and
perform all of the terms and conditions contained in this Agreement, and shall comply with all
valid acts, rules, regulations, orders and directions of any legislative, executive, administrative or
judicial body applicable to the System, the Enterprise, except for any period during which the same
are being contested in good faith by proper legal proceedings.
Section 5.06. Payment of Governmental Charges. The Enterprise shall pay or cause to
be paid all taxes and assessments or other governmental charges, if any, lawfully levied or assessed
upon or in respect of the System, or upon any part thereof, or upon any portion of the Gross Pledged
Revenues, when the same shall become due, and shall duly observe and comply with all valid
requirements of any governmental authority relative to the System or any part thereof, except for
any period during which the same are being contested in good faith by proper legal proceedings.
The Enterprise shall not create or suffer to be created any lien upon the System, or any part thereof,
or upon the Gross Pledged Revenues, except the pledge and lien created by for Senior Debt and
Parity Debt and except as herein otherwise permitted. The Enterprise shall pay or cause to be
discharged or shall make adequate provision to satisfy and to discharge, within 60 days after the
same shall become payable, all lawful claims and demands for labor, materials, supplies or other
objects which, if unpaid, might by law become a lien upon the System, or any part thereof, or the
Gross Pledged Revenues; but nothing herein requires the Enterprise to pay or cause to be
discharged or to make provision for any such tax, assessment, lien or charge, so long as the validity
thereof is contested in good faith and by appropriate legal proceedings.
Section 5.07. Protection of Security. The Enterprise and its officers, agents and
employees shall not take any action in such manner or to such extent as might prejudice the security
for the payment of the amounts due under this Agreement or the Note. No contract shall be entered
into nor any other action taken by which the rights of the Bank might be prejudicially and
materially impaired or diminished.
Section 5.08. Prompt Payment . The Enterprise shall promptly pay the amounts due
under this Agreement or the Note at the places, on the dates and in the manner specified herein
and in the Agreement or the Note according to the true intent and meaning hereof.
Section 5.09. Use of Funds and Accounts. The funds and accounts described herein
shall be used solely and only for the purposes described herein.
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Section 5.10. Other Liens. Other than the 2018A Bonds and 2018B Bonds, there are no
liens or encumbrances of any nature whatsoever on or against the System, or any part thereof, or
on or against the Net Pledged Revenues on a parity with or superior to the lien thereon of this
Agreement and the Note.
Section 5.11. Reasonable and Adequate Charges. The fees, rates and other charges due
to the Enterprise for the use of or otherwise pertaining to and services rendered by the System to
the Enterprise, to its inhabitants and to all other users within and without the boundaries of the
Enterprise shall be reasonable and just, taking into account and consideration public interests and
needs, the cost and value of the System, the Operation and Maintenance Expenses thereof, and the
amounts necessary to meet the debt service requirements of all Senior Debt, Parity Debt, and any
other securities payable from the Net Pledged Revenues, including, without limitation, reserves
and any replacement accounts therefor.
Section 5.12. Adequacy and Applicability of Charges. There shall be charged against
users of service pertaining to and users of the System, except as provided by Section 5.13 hereof,
such fees, rates and other charges so that the Gross Pledged Revenues shall be adequate to meet
the requirements of this Section. Such charges pertaining to the System shall be at least sufficient
so that the Gross Pledged Revenues annually are sufficient to pay in each Fiscal Year:
(a) Operation and Maintenance Expenses. amount equal to the annual
Operation and Maintenance Expenses for such Fiscal Year that are payable from the Gross Pledged
Revenues
(b) Principal and Interest An amount equal to 125% of the debt service
requirements on the Senior Debt and any Parity Debt then outstanding in that Fiscal Year
(excluding the reserves therefor), and
(c) Deficiencies. All sums, if any, due and owing to meet then existing
deficiencies pertaining to any fund or account relating to the Gross Pledged Revenues or any
securities payable therefrom.
Section 5.13. Limitations Upon Free Service. No free service or facilities shall be
furnished by the System, except that the City shall not be required to pay for any use by the City
of any facilities of the System for municipal purposes. If the City chooses, in its sole discretion,
to pay for its use of the System, all the income so derived from the City shall be deemed to be
income derived from the operation of the System, to be used and to be accounted for in the same
manner as any other income derived from the operation of the System.
Section 5.14. Collection of Charges. The Enterprise shall cause all fees, rates and other
charges pertaining to the System to be collected as soon as is reasonable, shall reasonably prescribe
and enforce rules and regulations or impose contractual obligations for the payment of such
charges, and for the use of the System, and shall provide methods of collection and penalties, to
the end that the Gross Pledged Revenues shall be adequate to meet the requirements of this
Agreement and the Note
Section 5.15. Maintenance of Records. Proper books of record and account shall be kept
by the Enterprise, separate and apart from all other records and accounts.
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Section 5.16. Accounting Principles. System records and accounts, and audits thereof,
shall be currently kept and made, as nearly as practicable, in accordance with the then generally
accepted accounting principles, methods and terminology followed and construed for utility
operations comparable to the System, except as may be otherwise provided herein or required by
applicable law or regulation or by contractual obligation existing on the execution and delivery of
this Agreement.
Section 5.17. Laws, Permits and Obligations. The Enterprise will comply in all
material respects with all applicable laws, rules, regulations, orders and directions of any
governmental authority and all agreements and obligations binding on the Enterprise,
noncompliance with which would have a material adverse effect on the Enterprise, its financial
condition, assets or ability to perform its obligations under the other Financing Documents;
provided that the Enterprise may in good faith contest such laws, rules, regulations, orders and
directions and the applicability thereof to the Enterprise to the extent that such action would not
be likely to have a material adverse effect on the Enterprise’s ability to perform its obligations
hereunder.
Section 5.18. Bonding and Insurance. The Enterprise shall carry general liability
coverage, workers’ compensation, public liability, and such other forms of insurance on insurable
Enterprise property upon the terms and conditions, and issued by recognized insurance companies,
as in the judgment of the Enterprise would ordinarily be carried by entities having similar
properties of equal value, such insurance being in such amounts as will protect the Enterprise and
its operations.
Section 5.19. Other Liabilities. The Enterprise shall pay and discharge, when due, all of
its liabilities, except when the payment thereof is being contested in good faith by appropriate
procedures which will avoid financial liability and with adequate reserves provided therefor.
Section 5.20. Proper Books and Records. The Enterprise shall keep or cause to be kept
adequate and proper records and books of account in which complete and correct entries shall be
made with respect to the Enterprise, the Net Pledged Revenues and all of the funds and accounts
established or maintained pursuant to any of the Financing Documents. The Enterprise shall (a)
maintain accounting records in accordance with generally recognized and accepted principles of
accounting consistently applied throughout the accounting periods involved; (b) provide the Bank
with such information concerning the business affairs and financial condition (including insurance
coverage) of Enterprise as the Bank may request; and (c) without request, provide the Bank with
the information set forth below.
Section 5.21. Reporting Requirements.
(a) The Enterprise shall notify the Bank promptly of all interim litigation or
administrative proceedings, threatened or pending, against the Enterprise which would, if
adversely determined, in the Enterprise’s reasonable opinion, have a material effect on the
Enterprise’s financial condition arising after the date hereof.
(b) The Enterprise shall provide the following to the Bank at the times and in
the manner provided below:
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(i) as soon as available, but not later than 210 days following the end
of each Fiscal Year, the Enterprise shall furnish to the Bank its audited financial statements
prepared in accordance with generally accepted accounting principles consistently applied, in
reasonable detail and certified by a firm of independent certified public accountants selected by
the Enterprise; and
(ii) promptly upon request of the Bank, the Enterprise shall furnish to
the Bank such other reports or information regarding the collateral securing the obligations of the
Enterprise hereunder or the assets, financial condition, business or operations of the Enterprise, as
the Bank may reasonably request.
(c) The Enterprise shall promptly notify the Bank of any Event of Default of
which the Enterprise has knowledge, setting forth the details of such Event of Default and any
action which the Enterprise proposes to take with respect thereto.
(d) The Enterprise shall notify the Bank as soon as possible after the Enterprise
acquires knowledge of the occurrence of any event which, in the reasonable judgment of the
Enterprise, is likely to have a material adverse effect on the financial condition of the Enterprise
or affect the ability of the Enterprise to perform its obligations under this Agreement or under any
other Financing Documents.
Section 5.22. Visitation and Examination. Unless otherwise prohibited by law, the
Enterprise will permit any Person designated by the Bank to visit any of its offices to examine the
Enterprise’s books and financial records, and make copies thereof or extracts therefrom, and to
discuss its affairs, finances and accounts with its principal officers, all at such reasonable times
and as often as the Bank may reasonably request.
Section 5.23. Additional Debt. The Enterprise may issue Debt with a lien on the Net
Pledged Revenues that is on a parity with or subordinate to the lien of this Agreement, without the
Bank’s prior written consent. The Enterprise may issue Debt with a lien on the Net Pledged
Revenues that is senior to the lien of this Agreement, without the Bank’s prior written consent, if
such Debt is issued pursuant to the provisions of the 2018 Bond Ordinance.
ARTICLE VI
INVESTMENTS
Section 6.01. Permitted Investments Only. All moneys held in the Light and Power
Fund shall be invested in Permitted Investments only.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
Section 7.01. Events of Default. The occurrence of any one or more of the following
events or the existence of any one or more of the following conditions shall constitute an Event of
Default under this Agreement (whatever the reason for such event or condition and whether it shall
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be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree,
rule, regulation or order of any court or any administrative or governmental body):
(a) the Enterprise fails to pay the principal of or interest on the Note or any
Parity Debt when due;
(b) the Enterprise fails to pay when due any other amounts due and payable to
the Bank under this Agreement or any other Financing Documents;
(c) the Enterprise fails to observe or perform any other of the covenants,
agreements or conditions on the part of the Enterprise in this Agreement, the Note, or the
Authorizing Ordinance and the Enterprise fails to remedy the same within 30 days after the Bank
has provided the Enterprise with notice thereof;
(d) any representation or warranty made by the Enterprise in this Agreement or
in any other Financing Document or any certificate, instrument, financial or other statement
furnished by the Enterprise to the Bank, proves to have been untrue or incomplete in any material
respect when made or deemed made;
(e) the pledge of the collateral or any other security interest created hereunder
fails to be fully enforceable with the priority required hereunder or thereunder;
(f) any judgment or court order for the payment of money exceeding any
applicable insurance coverage by more than $100,000 in the aggregate is rendered against the
Enterprise and the Enterprise fails to vacate, bond, stay, contest, pay or satisfy such judgment or
court order for 60 days;
(g) the Enterprise shall initiate, acquiesce or consent to any proceedings to
dissolve the Enterprise or to consolidate the Enterprise with other similar entities into a single
entity or the Enterprise shall otherwise cease to exist;
(h) a change occurs in the financial or operating conditions of the Enterprise,
or the occurrence of any other event that, in the Bank’s reasonable judgment, will have a materially
adverse impact on the ability of the Enterprise to generate Net Pledged Revenues sufficient to
satisfy the Enterprise’s obligations under this Agreement or its other obligations, and the
Enterprise fails to cure such condition within six months after receipt by the Enterprise of written
notice thereof from the Bank;
(i) the Enterprise shall commence any case, proceeding or other action (A)
under any existing or future law of any jurisdiction relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered with respect to it or
seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or
its debts; or (B) seeking appointment of a receiver, trustee, custodian or other similar official for
itself or for any substantial part of its property, or the Enterprise shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against the Enterprise any case,
proceeding or other action of a nature referred to in clause (i) and the same shall remain
undismissed; or (iii) there shall be commenced against the Enterprise any case, proceeding or other
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23
action seeking issuance of a warrant of attachment, execution, distraint or similar process against
all or any substantial part of its property which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending appeal, within 60 days
from the entry thereof; (iv) the Enterprise shall take action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above;
or (v) the Enterprise shall generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due;
(j) this Agreement or any other Financing Document, or any material provision
hereof or thereof, (i) ceases to be valid and binding on the Enterprise or is declared null and void,
or the validity or enforceability thereof is contested by the Enterprise (unless being contested by
the Enterprise in good faith), or the Enterprise denies it has any or further liability under any such
document to which it is a party; or (ii) any pledge or security interest created fails to be fully
enforceable with the priority required hereunder or thereunder; and
(k) the Enterprise’s auditor delivers a qualified opinion with respect to the
Enterprise’s status as an on-going concern.
Section 7.02. Remedies. Upon the occurrence and during the continuance of any Event
of Default, the Loan shall bear interest at the Default Interest Rate. Upon the occurrence and
during the continuance of any Event of Default, the Bank, at its option, may take any action or
remedy available under the other Financing Documents or any other document, or at law or in
equity. Notwithstanding anything to the contrary herein, acceleration of the Loan shall not be an
available remedy for the occurrence or continuance of an Event of Default. In exercising any
remedy hereunder, the Bank shall give notice to all Notice Parties.
Section 7.03. Notice to Bank of Default. Notwithstanding any cure period described
above, the Enterprise will immediately notify the Bank in writing when the Enterprise obtains
knowledge of the occurrence of any Event of Default or any event which would, with the passage
of time or the giving of notice, constitute an Event of Default.
Section 7.04. Additional Bank Rights. Upon the occurrence of an Event of Default the
Bank may at any time take such other steps to protect or preserve the Bank’s interest in the Net
Pledged Revenues.
Section 7.05. Delay or Omission No Waiver. No delay or omission of the Bank to
exercise any right or power accruing upon any default shall exhaust or impair any such right or
power or shall be construed to be a waiver of any such default, or acquiescence therein; and every
power and remedy given by this Agreement may be exercised from time to time and as often as
may be deemed expedient.
Section 7.06. No Waiver of One Default to Affect Another; All Remedies
Cumulative. No waiver of any Event of Default hereunder shall extend to or affect any subsequent
or any other then existing Event of Default or shall impair any rights or remedies consequent
thereon. All rights and remedies of the Bank provided herein shall be cumulative and the exercise
of any such right or remedy shall not affect or impair the exercise of any other right or remedy.
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24
Section 7.07. Other Remedies. Nothing in this Article VII is intended to restrict the
Bank’s rights under any of the Financing Documents or at law or in equity, and the Bank may
exercise all such rights and remedies as and when they are available.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Loan Agreement and Relationship to Other Documents. The
warranties, covenants and other obligations of the Enterprise (and the rights and remedies of the
Bank) that are outlined in this Agreement and the other Financing Documents are intended to
supplement each other. In the event of any inconsistencies in any of the terms in the Financing
Documents, all terms will be cumulative so as to give the Bank the most favorable rights set forth
in the conflicting documents, except that if there is a direct conflict between any preprinted terms
and specifically negotiated terms (whether included in an addendum or otherwise), the specifically
negotiated terms will control.
Section 8.02. Assignments, Participations, etc. by the Bank. The Bank may not assign
or transfer this Agreement or the Note or participate any of the Bank’s interests in the Agreement
or the Note without the Enterprise’s prior written consent. Any such assignment without the
Enterprise’s prior written consent shall be deemed null and void and of no effect.
Section 8.03. Notices. Notices shall be deemed delivered when the notice has been (a)
deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery service;
(c) received by Electronic Notification; or (d) when personally delivered at the following addresses
(the “Notice Parties”): Notice of any record shall be deemed delivered when the record has been
(a) deposited in the United States Mail, postage pre-paid; (b) received by overnight delivery
service; (c) received by Electronic Notification; or (d) when personally delivered at the following
addresses (the “Notice Parties”):
to Enterprise: City of Fort Collins, Colorado, Electric Utility Enterprise
____________
____________
to Bank: U.S. Bank National Association
_____________
_____________
Section 8.04. Payments. Payments due on the Loan shall be made in lawful money of
the United States. All payments may be applied by the Bank to principal, interest and other
amounts due under the Note and this Agreement pursuant to the terms of this Agreement.
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25
Section 8.05. Applicable Law and Jurisdiction; Interpretation; Severability. This
Agreement and all other Financing Documents will be governed by and interpreted in accordance
with the internal laws of the State of Colorado, except to the extent superseded by Federal law.
Invalidity of any provisions of this Agreement will not affect any other provision. TO THE
EXTENT PERMITTED BY LAW, THE ENTERPRISE AND THE BANK HEREBY CONSENT
TO THE EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER
COUNTY, COLORADO, AND WAIVE ANY OBJECTIONS BASED ON FORUM NON
CONVENIENS, WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR
PROCEEDINGS RELATING TO THIS AGREEMENT, THE NOTE, THE NET PLEDGED
REVENUES, ANY OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS
ARISING THEREFROM, OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF
THE FOREGOING. Nothing in this Agreement will affect the Bank’s rights to serve process in
any manner permitted by law. This Agreement, the other Financing Documents and any
amendments hereto (regardless of when executed) will be deemed effective and accepted only at
the Bank’s offices, and only upon the Bank’s receipt of the executed originals thereof. Invalidity
of any provision of this Agreement shall not affect the validity of any other provision.
Section 8.06. Copies; Entire Agreement; Modification. The Enterprise hereby
acknowledges the receipt of a copy of this Agreement and all other Financing Documents.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT
SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING,
EXPRESSING CONSIDERATION AND SIGNED BY THE PARTIES ARE ENFORCEABLE.
NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN
CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS AGREEMENT MAY
ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL
ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN
EFFECT BETWEEN THE ENTERPRISE AND THE BANK. A MODIFICATION OF ANY
OTHER CREDIT AGREEMENT NOW IN EFFECT BETWEEN THE ENTERPRISE AND THE
BANK, WHICH OCCURS AFTER RECEIPT BY THE ENTERPRISE OF THIS NOTICE, MAY
BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT. ORAL OR IMPLIED
MODIFICATIONS TO ANY SUCH CREDIT AGREEMENT IS NOT ENFORCEABLE AND
SHOULD NOT BE RELIED UPON.
Section 8.07. Waiver of Jury Trial. TO THE EXTENT PERMITTED BY LAW, THE
ENTERPRISE AND THE BANK HEREBY JOINTLY AND SEVERALLY WAIVE ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO ANY
OF THE FINANCING DOCUMENTS, THE OBLIGATIONS THEREUNDER, ANY
COLLATERAL SECURING THE OBLIGATIONS, OR ANY TRANSACTION ARISING
THEREFROM OR CONNECTED THERETO. THE ENTERPRISE AND THE BANK EACH
REPRESENTS TO THE OTHER THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND
VOLUNTARILY GIVEN.
Section 8.08. Attachments. All documents attached hereto, including any appendices,
schedules, riders and exhibits to this Agreement, are hereby expressly incorporated by reference.
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26
Section 8.09. No Recourse Against Officers and Agents. Pursuant to Section
11-57-209 of the Supplemental Public Securities Act, if a member of the Board, or any officer or
agent of the Enterprise, acts in good faith in the performance of his duties as a member, officer, or
agent of the Board or the Enterprise and in no other capacity, no civil recourse shall be available
against such member, officer or agent for payment of the principal of and interest on the Loan.
Such recourse shall not be available either directly or indirectly through the Board or the
Enterprise, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement
of penalty, or otherwise. By the acceptance of the delivery of the Note evidencing the Loan and
as a part of the consideration for such transfer, the Bank and any Person purchasing or accepting
the transfer of the obligation representing the Loan specifically waives any such recourse.
Section 8.10. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Public Securities Act, this Agreement is entered into pursuant to certain provisions of the
Supplemental Public Securities Act. Such recital shall be conclusive evidence of the validity and
the regularity of the issuance of this Agreement after delivery for value.
Section 8.11. Limitation of Actions. Pursuant to Section 11-57-212 of the Supplemental
Public Securities Act, no legal or equitable action brought with respect to any legislative acts or
proceedings in connection with the authorization or issuance of the Loan shall be commenced
more than 30 days after the authorization of the Loan.
Section 8.12. Pledge of Revenues. The creation, perfection, enforcement, and priority of
the pledge of revenues to secure or pay the Loan provided herein shall be governed by Section
11-57-208 of the Supplemental Public Securities Act, this Agreement, the Note, and the
Authorizing Ordinance. The amounts pledged to the payment of the Loan shall immediately be
subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of
such pledge shall have a first priority. 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 Enterprise irrespective of whether such Persons have notice of such liens.
Section 8.13. No Liability. The Bank, including its agents, employees, officers, directors
and controlling Persons, shall not have any liability to the Enterprise, and the Enterprise assumes
all risk, responsibility and liability for (a) the form, sufficiency, correctness, validity, genuineness,
falsification and legal effect of any demands and other documents, instruments and other papers
relating to the Loan even if such documents, should prove to be in any or all respects invalid,
insufficient, fraudulent or forged; (b) the general and particular conditions stipulated therein; (c)
the good faith acts of any Person whosoever in connection therewith; (d) failure of any Person
(other than the Bank, subject to the terms and conditions hereof) to comply with the terms of the
Loan; (e) errors, omissions, interruptions or delays in transmission or delivery of any messages,
by mail, cable, telex, telegraph, wireless or otherwise, whether or not they be in code; (f) errors in
translation or errors in interpretation of technical terms; (g) for any other consequences arising
from causes beyond the Bank’s control; or (h) any use of which may be made of the proceeds of
the Loan, except to the extent of any direct, as opposed to indirect, consequential, or special
damages suffered by the Enterprise which direct damages are proven by the Enterprise to be caused
by the Bank’s willful or grossly negligent failure to make lawful payment under the Loan.
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
27
Section 8.14. No Waiver; Modifications in Writing. No failure or delay on the part of
the Bank in exercising any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy preclude any other right,
power or remedy. The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Bank at law or in equity or otherwise. No amendment,
modification, supplement, termination or waiver of or to any provision of this Agreement, nor
consent to any departure by the Enterprise therefrom, shall be effective unless the same shall be in
writing and signed by or on behalf of the Bank and the Enterprise. Any amendment, modification
or supplement of or to any provision of this Agreement, and any consent to any departure by the
Enterprise from the terms of any provision of this Agreement, shall be effective only in the specific
instance and for the specific purpose for which made or given. No notice to or demand on the
Enterprise in any case shall entitle the Enterprise to any other or further notice or demand in similar
or other circumstances or constitute a waiver of the right of the Bank to any other or further action
in any circumstances without notice or demand.
Section 8.15. Payment on Non-Business Days. Whenever any payment hereunder shall
be stated to be due on a day which is not a Business Day, such payment may be made on the next
succeeding Business Day.
Section 8.16. Execution in Counterparts; Electronic Storage. This Agreement may be
executed in counterparts, each of which when so executed and delivered shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but one and the same
Agreement. The parties hereto agree that the transactions described herein may be conducted and
related documents may be stored by electronic means. Copies, telecopies, facsimiles, electronic
files and other reproductions of original executed documents shall be deemed to be authentic and
valid counterparts of such original documents for all purposes, including the filing of any claim,
action or suit in the appropriate court of law.
Section 8.17. Severability. Any provision of this Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such jurisdiction, be ineffective to
the extent of such prohibition, unenforceability or nonauthorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability or legality of such provision
in any other jurisdiction.
Section 8.18. Headings. Article and Section headings used in this Agreement are for
convenience of reference only and shall not affect the construction of this Agreement.
Section 8.19. Waiver of Rules of Construction. The Enterprise hereby waives any and
all provisions of law to the effect that an ambiguity in a contract or agreement should be interpreted
against the party responsible for its drafting.
Section 8.20. Integration. This Agreement is intended to be the final agreement between
the parties hereto relating to the subject matter hereof and this Agreement and any agreement,
document or instrument attached hereto or referred to herein shall supersede all oral negotiations
and prior writings with respect to the subject matter hereof.
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
28
Section 8.21. Termination of Agreement. At such time as all amounts due to the Bank
have been duly paid, or provided for, this Agreement shall terminate.
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
29
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
set forth above.
U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By _______________________________________
Name _____________________________________
Title ______________________________________
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE, an
enterprise of the City of Fort Collins, Colorado
By _______________________________________
President
[SEAL]
Attest:
By
Secretary
[Signature Page to Loan Agreement]
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
A‐1
EXHIBIT A
FORM OF 2019 NOTE
THIS NOTE MAY NOT BE SOLD TRANSFERRED OR OTHERWISE DISPOSED OF
WITHOUT THE CONSENT OF THE ENTERPRISE.
UNITED STATES OF AMERICA
STATE OF COLORADO
CITY OF FORT COLLINS, COLORADO, ELECTRIC UTILITY ENTERPRISE
2019 TAXABLE SUBORDINATE LIEN REVENUE NOTE
IN THE AGGREGATE PRINCIPAL AMOUNT OF
NOT TO EXCEED $2,500,000
Advances Not to Exceed US $2,500,000 __________, 2019
FOR VALUE RECEIVED, CITY OF FORT COLLINS, COLORADO, ELECTRIC
UTILITY ENTERPRISE, an enterprise of the City of Fort Collins, Colorado, (hereinafter referred
to as “Maker”), promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION, a
national banking association, its successors and assigns (hereinafter referred to as “Payee”), at the
office of Payee or its agent, designee, or assignee at ___________________ or at such place as
Payee or its agent, designee, or assignee may from time to time designate in writing, all Advances
made in an amount not to exceed the principal sum of TWO MILLION FIVE HUNDRED
THOUSAND AND NO/100 DOLLARS (US $2,500,000) (this “Note”) pursuant to the terms of
the Loan Agreement dated of even date herewith by and between Maker and Payee (the “Loan
Agreement”), in lawful money of the United States of America.
This Note shall bear interest, be payable, and mature pursuant to the terms and provisions
of the Loan Agreement. All capitalized terms used and not otherwise defined herein shall have
the respective meanings ascribed in the Loan Agreement.
All amounts due under this Note shall be payable and collectible solely out of the Net
Pledged Revenues, which revenues are hereby so pledged which pledge is in all respects
subordinate to the pledge and lien thereon of the Senior Debt at any time outstanding. The Bank
may not look to any general or other fund for the payment of such amounts; this Note shall not
constitute a debt or indebtedness within the meaning of any constitutional, charter, or statutory
provision or limitation; and this Note shall not be considered or held to be general obligations of
the Enterprise or the City but shall constitute a special obligation of the Enterprise. No statutory
or constitutional provision enacted after the execution and delivery of the Note shall in any manner
be construed as limiting or impairing the obligation of the Enterprise to comply with the provisions
of this Note. None of the covenants, agreements, representations and warranties contained herein
or in this Note shall ever impose or shall be construed as imposing any liability, obligation or
charge against the Enterprise or the City (except the Net Pledged Revenues and the special funds
pledged therefor), or against its general credit, or as payable out of its general fund or out of any
funds derived from taxation or out of any other revenue source (other than those pledged therefor).
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A‐2
The payment of the amounts due under this Note is not secured by an encumbrance, mortgage or
other pledge of property of the City or the Enterprise, except for the Net Pledged Revenues. No
property of the City or the Enterprise, subject to such exception, shall be liable to be forfeited or
taken in payment of such amounts.
Amounts received by Payee under this Note shall be applied in the manner provided by the
Loan Agreement. All amounts due under this Note shall be payable without setoff, counterclaim
or any other deduction whatsoever by Maker.
Unless payments are made in the required amount in immediately available funds in
accordance with the provisions of the Loan Agreement, remittances in payment of all or any part
of the amounts due and payable hereunder shall not, regardless of any receipt or credit issued
therefor, constitute payment until the required amount is actually received by Payee in funds
immediately available at the place where this Note is payable (or any other place as Payee, in
Payee’s sole discretion, may have established by delivery of written notice thereof to Maker) and
shall be made and accepted subject to the condition that any check or draft may be handled for
collection in accordance with the practice of the collecting bank or banks. Acceptance by Payee
of any payment in an amount less than the amount then due shall be deemed an acceptance on
account only and any unpaid amounts shall remain due hereunder, all as more particularly provided
in the Loan Agreement.
In the event of nonpayment of this Note, Payee shall be entitled to all remedies under the
Loan Agreement and at law or in equity, and all remedies shall be cumulative.
It is expressly stipulated and agreed to be the intent of Maker and Payee at all times to
comply with applicable state law and applicable United States federal law. If the applicable law
(state or federal) is ever judicially interpreted so as to render usurious any amount called for under
this Note or under the Loan Agreement, or contracted for, charged, taken, reserved or received
with respect to the indebtedness evidenced by this Note, then it is Maker’s and Payee’s express
intent that all excess amounts theretofore collected by Payee be credited on the principal balance
of this Note (or, if this Note has been or would thereby be paid in full, refunded to Maker), and the
provisions of this Note shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the execution of any new
document, so as to comply with the applicable law, but so as to permit the recovery of the fullest
amount otherwise called for hereunder and under the Loan Agreement. All sums paid or agreed
to be paid to Payee for the use, forbearance and detention of the indebtedness evidenced hereby
and by the Loan Agreement shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full term of such indebtedness until payment in full so that the
rate or amount of interest on account of such indebtedness does not exceed the maximum rate
permitted under applicable law from time to time in effect and applicable to the indebtedness
evidenced hereby for so long as such indebtedness remains outstanding.
Maker and any endorsers, sureties or guarantors hereof jointly and severally waive
presentment and demand for payment, protest and notice of protest and nonpayment, all applicable
exemption rights, valuation and appraisement, notice of demand, and all other notices in
connection with the delivery, acceptance, performance, default or enforcement of the payment of
this Note and the bringing of suit and diligence in taking any action to collect any sums owing
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A‐3
hereunder or in proceeding against any of the rights and collateral securing payment hereof. Maker
and any surety, endorser or guarantor hereof agree (a) that the time for any payments hereunder
may be extended from time to time without notice and consent; (b) to the acceptance of further
collateral; (c) to the release of any existing collateral for the payment of this Note; (d) to any and
all renewals, waivers or modifications that may be granted by Payee with respect to the payment
or other provisions of this Note; and/or (e) that additional makers, endorsers, guarantors or sureties
may become parties hereto all without notice to them and without in any manner affecting their
liability under or with respect to this Note. No extension of time for the payment of this Note shall
affect the liability of Maker under this Note or any endorser or guarantor hereof even though Maker
or such endorser or guarantor is not a party to such agreement.
Failure of Payee to exercise any of the options granted herein to Payee upon the happening
of one or more of the events giving rise to such options shall not constitute a waiver of the right to
exercise the same or any other option at any subsequent time in respect to the same or any other
event. The acceptance by Payee of any payment hereunder that is less than payment in full of all
amounts due and payable at the time of such payment shall not constitute a waiver of the right to
exercise any of the options granted herein or in the Loan Agreement to Payee at that time or at any
subsequent time or nullify any prior exercise of any such option without the express written
acknowledgment of Payee.
Maker (and the undersigned representative of Maker, if any) represents that Maker has full
power, authority and legal right to execute, deliver and perform its obligations pursuant to this
Note and this Note constitutes the legal, valid and binding obligation of Maker.
All notices or other communications required or permitted to be given hereunder shall be
given in the manner and be effective as specified in the Loan Agreement, directed to the parties at
their respective addresses as provided therein.
This Note is governed by and interpreted in accordance with the internal laws of the State
of Colorado, except to the extent superseded by federal law. Invalidity of any provisions of this
Note will not affect any other provision.
Pursuant to Section 11-57-210 of the Colorado Revised Statutes, as amended, this Note is
entered into pursuant to and under the authority of the Supplemental Public Securities Act, being
Title 11, Article 57, of the Colorado Revised Statutes, as amended. Such recital shall be conclusive
evidence of the validity and the regularity of the issuance of this Note after delivery for value and
shall conclusively impart full compliance with all provisions and limitations of said statutes, and
this Note shall be incontestable for any cause whatsoever after delivery for value.
By acceptance of this instrument, the Payee agrees and consents to all of the limitations in
respect of the payment of the principal of and interest on this Note contained herein, in the
Authorizing Ordinance of the Maker authorizing the issuance of this Note and in the Agreement,
as the same may be amended from time to time.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE COURT SITUATED IN LARIMER COUNTY,
COLORADO, AND WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
A‐4
WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES OR PROCEEDINGS RELATING
TO THIS NOTE, THE LOAN AGREEMENT, THE NET PLEDGED REVENUES, ANY
OTHER FINANCING DOCUMENT, OR ANY TRANSACTIONS ARISING THEREFROM,
OR ENFORCEMENT AND/OR INTERPRETATION OF ANY OF THE FOREGOING.
TO THE EXTENT PERMITTED BY LAW, MAKER HEREBY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS
NOTE, THE LOAN AGREEMENT, OR ANY OF THE OTHER FINANCING DOCUMENTS,
THE OBLIGATIONS THEREUNDER, ANY COLLATERAL SECURING THE
OBLIGATIONS, OR ANY TRANSACTION ARISING THEREFROM OR CONNECTED
THERETO. MAKER REPRESENTS TO PAYEE THAT THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY GIVEN.
THE PROVISIONS OF THIS NOTE MAY BE AMENDED OR REVISED ONLY BY
AN INSTRUMENT IN WRITING SIGNED BY MAKER AND PAYEE. THERE ARE NO
ORAL AGREEMENTS BETWEEN MAKER AND PAYEE WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
IN WITNESS WHEREOF, an authorized representative of City of Fort Collins, Colorado,
Electric Utility Enterprise, as Maker, has executed this Note as of the day and year first above
written.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
President
[SEAL]
Attest:
By
Secretary
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B‐1
EXHIBIT B
FORM OF ADVANCE REQUEST
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [Closing Date], 2019 (the “Agreement”) by and between City of Fort
Collins, Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”).
All capitalized terms used in this Advance Request (“Advance Request”) shall have the respective
meanings assigned in the Agreement.
The undersigned Authorized Person hereby makes a request to the Bank for an Advance
on the Loan, and in support thereof states:
(i) The amount of the Advance so requested is $___________.
(ii) Upon the funding of such Advance, the sum of all Advances will not exceed the
Maximum Advance Amount of the Loan.
(iii) At the time the requested Advance is to be made and as a result thereof, immediately
thereafter, all representations and warranties of the Enterprise set forth in Article IV of the Loan
Agreement are true and correct as though made on the date hereof and will be true and correct as
though made on the Advance Date and no Event of Default shall have occurred and be continuing
on the date hereof and on the Advance Date and no litigation is currently pending or threatened
concerning the Enterprise’s authority to pledge the Net Pledged Revenues as provided in the Loan
Agreement.
(iv) The outstanding Senior Debt is rated in one of its four highest rating categories by
a national recognized organization which regularly rates obligations such as the Senior Debt
(v) The requested Advance shall be made by the Bank by ACH batch transfer to the
Enterprise in accordance with the instructions set forth below:
[Insert wire instructions]
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________,
20__.
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
C‐1
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
C‐1
EXHIBIT C
FORM OF CONVERSION NOTICE
City of Fort Collins, Colorado, Electric Utility Enterprise
Loan Agreement
The undersigned certifies that he/she is an Authorized Person under that certain Loan
Agreement dated as of [Closing Date], 2019 (the “Agreement”) by and between City of Fort
Collins, Colorado, Electric Utility Enterprise and U.S. Bank National Association (the “Bank”).
All capitalized terms used in this Conversion Notice have the respective meanings assigned in the
Agreement.
You are hereby notified that the Enterprise has elected to convert the followings Advances
to a Term Loan effective as of the ____ and maturing on __________, 20__ (which date is not
later than the 8th anniversary of the Closing Date):
Advance Date Outstanding Principal Amount
2. No Event of Default has occurred and is continuing under the Agreement.
3. All representations and certifications of Enterprise in the Agreement are true and correct as of
the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of ________, 20__.
CITY OF FORT COLLINS, COLORADO,
ELECTRIC UTILITY ENTERPRISE
By
Authorized Person
48835181.v4
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Attachment: Exhibit A (8467 : Epic Homes US Bank Capital Agreement ORD)
Staff seeks direction from Council Finance with which option to proceed for City Council consideration. If
supported, staff is tentatively scheduled to present the selected 15-year capital option to full Council on October
1, 2019.
DISCUSSION / NEXT STEPS:
A 15 year loan term is programmatically important - 80% of customers / owners said if longer term is not
available, it would not be feasible for them to participate.
Ross Cunniff; see if my impression is right – interest rate swap – really a bet that the variable rate will go down
and they will potentially make potentially more money –
Travis Storin; speculating or they have a hedge of their own that they are trying to install
Ross Cunniff; re: the risk to the person who wants to pay the fixed interest
1) Variable rate goes down - paying more for money than we would have had to
2) Hard to back up - there may be some potential that a partner might default on the agreement
What are our contingencies if that happened?
2.3
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Attachment: Council Finance Meeting Minutes, August 19, 2019 (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
Capital Provider Terms
ATTACHMENT 2
2.2
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Attachment: Council Finance Meeting Minutes, July 15, 2019 (8454 : EUE-Epic Homes U.S. Bank Capital Agreement)
habitat for wildlife corridors along the foothills, require less new utility and street infrastructure, and better
maintain a more ‘open’ character. Common open space areas could be sited to contribute to a larger network
of green spaces adjacent the site. Further, the LMN portions of the site provide an opportunity to create a new
neighborhood that provides a wide variety of housing choices that are fully integrated into the surrounding
community. The LMN district has the capacity to provide a small neighborhood center that provides a focal point
for residents and services benefitting the surrounding area.
Residential Foothills (RF) District
The Residential Foothills zone district predates the original City Plan and Land Use Code (1997) and has its
origins in the Foothills Area Study (1982) embodied in the first Intergovernmental Agreement (IGA) between the
City and Larimer County. The IGA restricts all development below a datum of 5,250 feet in elevation, above
which no structure can project, to protect the community’s foothills backdrop. The Study concluded that the
Foothills area should be changed from a Rural designation to a Rural Non-Farm designation and residential
density allowed to increase from 1 unit/35 acres to 1 unit/2.2.9 acres.
ATTACHMENT 1
8.a
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8460 : SR 138 Hughes Stadium Rezoning)
Prohibited Prohibited Type 2 Type 2 Prohibited
Multi-family dwellings >8 units per
building, > 50 units, or >75 bedrooms
Prohibited Prohibited Type 2 Type 2 Prohibited
Long-term care facilities Prohibited Prohibited Type 2 Type 2 Prohibited
Mixed-Use Dwellings Prohibited Prohibited Type 1 Type 1 Prohibited
Mobile Home Parks Prohibited Prohibited Type 2 Type 2 Prohibited
Extra Occupancy Rentals >4 tenants Prohibited Prohibited Type 1 Type 1 Prohibited
Fraternity and sorority houses Prohibited Prohibited Prohibited Type 2 Prohibited
Minor public facilities Prohibited Type 1 Type 1 Type 1 Prohibited
Public and private Elementary,
Intermediate and High school
education
Type 1 Type 2 Type 1 Type 1 Prohibited
ATTACHMENT 1
8.a
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8460 : SR 138 Hughes Stadium Rezoning)
1982-Foothills Area Study. Five privately held parcels west of Overland Trail were surveyed, four of which
were recommended for inclusion in the UGA and changed in designation from Rural to the Rural Non-Farm
designation and the maximum residential density increased from 1 unit per 35 acres to 1 unit per 2.29 acres.
The study established the following guidelines (suggested) and standards (required) for the foothills area:
1. Public water and sewer utilities will be required. (standard)
2. Structures should be placed below the 5,200’ elevation line in order to avoid physical constraints and
ridgelines, and to facilitate water service.
3. Underground utilities will be required. (standard)
4. Development should be designed to conform to the terrain of the area.
5. Design should demonstrate a concern for the view of the foothills as well as from the foothills.
6. Design should take into account the unique micro-climate of the area, particularly high winds.
7. Design should consider wildlife habitat.
ATTACHMENT 1
8.a
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Attachment: First Reading Agenda Item Summary, November 5, 2019 (w/o attachments) (8460 : SR 138 Hughes Stadium Rezoning)