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Home My WebLink About20090409.tiffPage 1 of 1 Esther Gesick From: Sharon Mau [smau@CCCFIRM.COM] Sent: Tuesday, February 17, 2009 3:26 PM To: Bruce Barker; Esther Gesick Subject: Beebe Draw Farms Metro District Nos. 1 and 2 - IGA Attachments: DOC021709.pdf Hello, Please see attached. Sincerely, Maraud/tau Paralegal Collins Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 303-986-1551 Telephone 800-354-5941 Toll Free 303-986-1755 Facsimile PRIVILEGED COMMUNICATION. This email may contain attorney -client or otherwise privileged and confidential information intended only for the use of the individual or entity named above. Dissemination, distribution or copying of this communication is strictly prohibited. If you are an attorney or law firm, consult Title I of the Federal Electronic Communications Privacy Act of 1986. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error and delete this email. ATTACHMENTS. Although this email and any attachments are believed to be free of any virus, the files should be virus scanned before opening them. 2009-0409 2/17/2009 COLLINS COCKREL & COLE A PROFESSIONAL CORPORATION PAUL R. COCKREL JAMES P. COLUNS ROBERT G. COLE TIMOTHY J. FLYNN EVAN D. ELA LINDA G. ALEXANDER DAVID A. GREHER Bruce Barker, Esq. Weld County Attorney's Office P.O. Box 758 Greeley, Colorado 80632 ATTORNEYS AT LAW 390 UNION BOULEVARD, SUITE 400 DENVER, COLORADO 80228-1556 TELEPHONE: 303-988-1551 TOLL FREE: 8003545941 FACSIMILE: 303-988-1755 www.000flrm.com February 17, 2009 JAMES M. MOCK BECKY R. LENNON KATHRYN L. GARNER ERIC C. JORGENSON OF COUNSEL DIRECT E-MAIL amau©cccfin .com VIA EMAIL Board of County Commissioners Attention: Secretary/Clerk to the Board P.O. Box 758 Greeley, Colorado 80632 Re: Beebe Draw Farms Metropolitan District Nos. 1 and 2 Amended and Restated Intergovernmental Agreement Dear Mr. Barker and Clerk to the Board of County Commissioners: Pursuant to Section V.A of the Consolidated Service Plan of Beebe Draw Farms Metropolitan District No. 1 and Beebe Draw Farms Metropolitan District No. 2 ("Districts"), enclosed is an executed copy of the Amended and Restated Intergovernmental Agreement dated November 3, 2008 between the Districts ("IGA"). This IGA was also filed with the Board of County Commissioners in conjunction with the Appeal of Exclusion of Certain Real Property from Beebe Draw Farms Metropolitan District No. 1. Please contact us with any questions. Sincerely, Sharon Mau Paralegal /sm Enclosures (00155903.DOC I) • • AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into as of this 3rd day of November, 2008, by and between the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 ("District No. 1") and the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 ("District No. 2"; collectively, "Districts" or either of the Districts, a "District"), both quasi -municipal corporations and political subdivisions of the State of Colorado operating within the County of Weld ("County"), Colorado, organized under the provisions of Article 1 of Title 32, C.R.S. RECITALS A. The Districts were organized to facilitate the development of the Beebe Draw Farms and Equestrian Center, also known as Pelican Lake Ranch (the "Development"), by cooperatively providing for the financing, acquisition, construction, installation, completion, operation, maintenance and replacement of public infrastruction improvements and the furnishing of services for the use and benefit of the property owners, residents and users of the public improvements within the Development. B. The Consolidated Service Plan of the Districts dated May 1999 ("Service Plan") and previously approved by the County, requires that the Districts enter into an intergovernmental agreement to, among other matters, coordinate the financing, construction, completion, -operation-and-maintenance of the -public improvements and the provision of services needed within the Development. C. The Financial Plan in the Service Plan recognizes that District No. 2 will provide for the financing, construction, completion, operation and maintenance of the public improvements needed within the Development, and District No. 1 will impose a property tax levy on all taxable property within its boundaries and, after payment of debt service on its outstanding bonds, will remit the remainder of all taxes and other revenue collected by it to District No. 2. D. In furtherance of such requirements, the Districts previously entered into that certain Intergovernmental Agreement dated August 8, 2001 ("Original Agreement") and now desire to s theOrigina- (0014134$.D0C /i to better describe and confirm the cooperative relationship and current understandings between the Districts. E. Section 18(2)(a), Article XIV of the Colorado Constitution, Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., empower the Districts to enter into contracts and agreements with one another to provide intergovernmental services and facilities, including the sharing of costs, the imposition of taxes, and the incurring of debt, when so authorized by their respective Boards of Directors. F. At the public election held on November 2, 1999, the electors of the Districts authorized the Districts to incur indebtedness and other multi -fiscal year obligations and to enter into agreements relating thereto, including this Agreement, and at prior public elections, District No. l's electors authorized District No. 1 to levy property taxes, incur general obligations, and enter into agreements relating thereto, including this Agreement, in order to provide for the financing, construction and completion of the public improvements and to furnish the services needed within the Development. G. The Boards of Directors of the Districts hereby determine that the terms, conditions and provisions of this Agreement are in the best interests of the Districts and are necessary to implement the provisions of the Service Plan with respect to the intergovernmental cooperation between the Districts and to establish the respective duties and responsibilities of the Districts concerning the economic and efficient development of the public improvements and the provision of services within the Development. AGREEIIENT In consideration of the agreements, terms, conditions and authorizations set forth in the Recitals (which are incorporated herein by this reference) and in this Agreement, the adequacy and sufficiency of which are mutually acknowledged, the Districts agree as follows: SECTION 1. DEFINITIONS AND CONSTRUCTION OF AGRZSMKNT Section 1.1 Definitions. For all purposes of this Agreement, unless the context expressly indicates differently, the terms defined in this Section shall have the following incorporated herein by this reference. If any term is {00141345.DOC /1 2 capitalized in this Agreement but not defined herein, it shall have the meaning set forth in the Service Plan. a. "Administrative Expenses" means those costs incurred by District No. 2 for the purpose of administering the Districts as governments and operating and maintaining the Public Improvements as further provided in Section 5.6. b. "Agreement" means this Amended and Restated Intergovernmental Agreement between the Districts, as may be amended or supplemented in writing from time to time. c. "Board" or "Boards" means the Board of Directors of District No. 1 or District No. 2, as applicable, or the Boards of both Districts. d. "County" means the County of Weld, Colorado. e. "Default" or "Event of Default" means one or more of the events described in Section 6.1. f. "Developer Advances" means all funds advanced to District No. 2 by developers or other persons pursuant to any funding, reimbursement, acquisition or redevelopment agreement, and any bond, note or other obligation evidencing or securing such borrowing, that are applied for payment of costs incurred for Administrative Expenses of the Districts, for the Process of Construction, or for other public purposes, and are repayable from Project Revenues or from other legally available revenues of the Districts. g. "District" or "Districts" means either District No. 1 or District No. 2, as applicable, or both District No. 1 and District No. 2. h. "District No. 1" Metropolitan District 20, 1986 as Beebe District, a Colorado successor or assign. means the Beebe Draw Farms No. 1, organized on August Draw Farms Metropolitan special district, and any i. "District No. 1 Pledged Revenues" means all revenues received from (i) the District No. 1 (00141345.D0C /1 and interest on the 1998 Bonds, (ii) specific ownership taxes, and (iii) all rates, fees, tolls 3 • and charges imposed or collected within the Districts pursuant to Section 4.2, including without limitation facility fees and water tap fees, unless otherwise pledged for the repayment of Obligations, and remitted to District No. 2 pursuant to Section 4 for payment of (i) any Obligations other than the 1998 Bonds, (ii) the costs of the Process of Construction, and (iii) the payment of Administrative Expenses, all in conformance with the Funding Priorities. j. "District No. 1 Required Mill Levy" means the property tax levy required to be imposed by District No. 1 in accordance with Section 4.1 upon all real and personal property in District No. 1 and such other property that may be obligated by virtue of law for payment on the 1998 Bonds, at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 1 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 1 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) the principal of and interest on the 1998 Bonds, and (B) all other Obligations until all Obligations have been fully repaid and discharged, and (C) all Administrative Expenses. k. "District No. 2" means the Beebe Draw Farms Metropolitan District No. 2, organized on November successor or assign. (00141345.DOC /} 4 1. "District No. 2 Required Mill Levy" means the property tax levy required to be imposed by District No. 2 upon all real and personal property in District No. 2 at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 2 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 2 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) all Obligations (other than the 1998 Bonds) until all Obligations have been fully repaid and discharged, and (B) all Administrative Expenses. m. "Election" means the special election conducted by each District on November 2, 1999, at which the electors of each District authorized the District to incur Obligations and enter into agreements related thereto, including without limitation this Agreement. n. "Financial Plan" means the financial plan of the Districts as set forth in the Service Plan, including any amendment or modification thereof. o. "Fiscal Year Budget" means the annual District budget and appropriation resolution duly adopted or amended by the Board in accordance with State law. p. "Funding Priorities" has the meaning set forth in Section 3.1(d). (00141345.DOC /1 5 q. "Mill Limitation" means (i) any limitation on the District No. 1 or District No. 2 Required Mill Levy as set forth in the Service Plan or in any ballot issue approved at the Election and (ii) a limitation on the rate of the property tax levy which shall not exceed 40 mills for all purposes. r. "Obligations" means all limited rate general obligation bonds, revenue bonds, notes, contracts, or funding, reimbursement, acquisition or redevelopment agreements of the Districts, including without limitation the 1998 Bonds, Developer Advances and refunding Obligations, that are secured by the District No. 1 Required Mill Levy, the District No. 1 Pledged Revenues or the Project Revenues as provided in any resolution, indenture or agreement authorizing the issuance of such Obligations. s. "Process of Construction" or "Processing of Construction" means the activities, in part or all together, of District No. 2 with respect to providing, completing and/or acquiring the Public Improvements needed for the Development, including without limitation the planning, design, engineering, testing, permitting, inspecting, construction, construction management, installation, completion and replacement of the Public Improvements. t. "Project Revenues" means all amounts received by District No. 2 from (i) the imposition of the District No. 2 Required Mill Levy, (ii) the District No. 1 Pledged Revenues, (iii) specific ownership taxes, and (iv) all rates, fees, tolls and charges imposed or collected within the Districts for the (A) repayment of any Obligations (other than the 1998 Bonds), (B) payment of the costs of the Process of Construction, and (C) payment of Administrative Expenses, all in conformance with the Funding Priorities. u. "Public Improvements" means the streets, drainage, traffic and safety controls, water, parks and recreation, mosquito control, facilities, (00141345.DOC /( equipment, 6 land and related appurtenances described or authorized in the Service Plan. v. "Service Area" means the entire area of the Development, including all property within the boundaries of the Districts. w. "Service Plan" means the Consolidated Service Plan of the Districts dated May 1999, as may be amended or modified in writing from time to time with the approval of the County. x. "Term" means the period of time commencing on the date when this Agreement has been executed by each District and ending when District No. 2 has completed all Public Improvements, all Obligations have been repaid, and District No. 2 has been dissolved or consolidated with District No. 1 in accordance with provisions of the Article 1 of Title 32, C.R.S. y. "1998 Bonds" means the General Obligation Bonds, Series 1998 of District No. 1 in the original principal amount of $2,000,000 and the principal of and interest due per the 1998 Bond repayment schedule in accordance with the terms of the 1998 Bond Resolution, and any refunding or refinancing bonds issued in accordance with the 1998 Bond Resolution. The principal amount outstanding on the 1998 Bonds as of the date of execution of this Agreement is approximately $1,475,000. z. "1998 Bond Resolution" means the Resolution authorizing the issuance of the 1998 Bonds adopted by the Board of District No. 1 on October 21, 1998. Section 1.2 Construction of Agreement. For all purposes hereunder, unless the context expressly indicates differently, all definitions, terms, and words shall include both the singular and plural. Whenever "shall" or "will" is used herein, it shall be mandatory; "may" denotes that it is preferable or permissible, but not mandatory. Whenever "Party" or "Parties" is used herein, it shall refer to either District or both Districts. A reference herein to an act of "approval" may, if applicable, include a dctcrminaLion of cithcr Sections herein are to sections of this Agreement, unless otherwise specified. (00141345.DOC /1 7 SECTION 2. PURPOSE The purpose of this Agreement is to establish the intergovernmental relationship between the Districts in compliance with the Service Plan and to implement the terms of the Service Plan with respect to the cooperation between the Districts relating to the financing, Processing of Construction, operation and maintenance of the Public Improvements, and the provision of services within the Service Area. While each District is an independent special district, the Districts will cooperate with each other in accordance with the terms of this Agreement, unless the Districts subsequently agree to perform any administrative or management function independently by execution of an amendment of this Agreement. This Agreement shall, in all circumstances, be interpreted consistently with the Service Plan and the intended responsibilities of each District in implementing the Service Plan. SECTION 3. REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties. The Board of each District represents, acknowledges, warrants and agrees for the benefit of the other District that to the best of its actual knowledge: a. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or contravene any law, order, rule or regulation applicable to the District or to the District's governing documents, including the Service Plan; (ii) result in the breach of any of the terms or provisions or constitute a default under any obligation, agreement or other instrument to which the District is a party or by which it may be bound or affected; or (iii) permit another party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the District; b. The Board has duly approved this Agreement; c. This Agreement is a valid and binding obligation of the District enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity, subject to all limitations set forth herein; 100141345.000 /1 8 • d. All revenues received by District No. 1 from the District No. 1 Required Mill Levy and all Project Revenues received by District No. 2 shall be expended in accordance with the priorities set forth in Sections 4.1.(b) and 5.1.(c) (the "Funding Priorities"); e. Each District may rely upon and enforce all representations, warranties and agreements set forth in this Agreement; and f. The Districts, and not the County, shall be responsible for paying all debts and liabilities of the Districts. Section 3.2 Performance of Agreement. Each District acknowledges and agrees that the performance of this Agreement over the full Term is essential to the implementation of and compliance with the Service Plan and that any material departure from the terms of this Agreement by either District, or any unilateral attempt by either District to materially alter the terms of or to terminate this Agreement, except as authorized hereunder, is and shall constitute an Event of Default and a material departure from the Service Plan which, in addition to any other remedy set forth herein, the non -defaulting District shall be entitled to enjoin in accordance with Section 32-1-207, C.R.S. SECTION 4. DISTRICT NO. 1 RESPONSIBILITIES Section 4.1 Imposition of the District No. 1 Required Mill Levy. Until such time as (i) the 1998 Bonds and all other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 1 shall: a. Certify the District No. 1 Required Mill Levy no later than December 1 of each year in accordance with statutory requirements and provide prompt written notice of such certification to District No. 2, pursuant to the following process: (i) For the 2009 fiscal and property tax collection year, the District No. 1 Required Mill Levy shall be 40 mills, which shall by operation of law also be imposed upon all taxable property in District No. 2. On or before December 1, 2008, District No. 1 shall adopt a resolution establishing and (00141345.DOC /) 9 certifying the District No. 1 Required Mill Levy at a rate of 40 mills. District No. 1 shall provide prompt written notice to District No. 2 of such certification. Upon receipt from the County of the revenues from the District No. 1 Required Mill Levy, District No. 1 shall identify and segregate that portion of the revenues received from the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (ii) Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, District No. 2 shall determine and, on or before November 1, advise District No. 1 of the District No. 1 Required Mill Levy to be included in the Fiscal Year Budget for the next fiscal year. On or before November 15 of each year, District No. 1 shall provide written notice to District No. 2 of any reasonable objections it may have to the District No. 1 Required Mill Levy, which objections shall be limited to non-compliance with the Service Plan or non-compliance with the terms of this Agreement. If no written objections are received by District No. 2 by November 15, District No. 1 shall be deemed to have consented to the District No. 1 Required Mill Levy, and District No. 1 shall, no later than December 1 of each year, adopt a resolution establishing and certifying the District No. 1 Required Mill Levy and shall provide prompt written notice to District No. 2 of such certification. Upon receipt of the revenues from the District No. 1 Required Mill Levy from the County, District No. 1 shall identify and segregate that portion of the revenues received form the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (iii) It shall be an Event of Default if District No. 1 fails to certify the District No. 1 Required Mill Levy by December 1 of any year or to remit the District No. 1 Pledged Revenues to District No. 2. In such event, District No. 2 shall have the rights and remedies set forth in Section 6.3. b. All property tax revenue received by District No. 1 from the District No. 1 Required Mill Levy shall lied Litt far t he l998—Bandr-per—thet998 Bond repayment schedule, and then the District No. 1 Pledged (00141345.DOC /f 10 Revenues shall be remitted to District No. 2 pursuant to the provisions hereof. c. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 1 to the County authorizing the District No. 1 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. d. It shall be the duty of the Board of District No. 1 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 1 Required Mill Levy. The Board of District No. 1 shall levy, certify and collect the District No. 1 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in the 1998 Bond Resolution and this Agreement. District No. 1 in cooperation with District No. 2 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and remit all amounts realized from the sale of any real or personal property for delinquent taxes to District No. 2 (not required for payment of principal of and interest on the 1998 Bonds) in accordance with the provisions of this Agreement. e. District No. 1 shall be prohibited from retaining, appropriating, expending, pledging or otherwise encumbering any portion of the District No. 1 Pledged Revenues that are received by District No. 1 for any purpose, and all of such revenues and monies shall be transferred and paid to District No. 2 in accordance with the provisions of this Agreement. f. At any and all times, District No. 1 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certifications and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 4.2 Rates, Fees and Charges. During the Term, District No. 1 shall adopt, impose and remit to District No. 2 such rates, fees, tolls and charges as are established by Obligations or to fund the Process of Construction costs and the Administrative Expenses of the Districts, and such rates, fees, (00141345.DOC /1 11 tolls and charges shall be deemed part of the District No. 1 Pledged Revenues. The procedures for adopting, budgeting and transferring such fees will be established by District No. 2. Section 4.3 District No. 1 Obligations. Other than the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall incur no direct Obligations, Developer Advances, or direct costs for Processing of Construction of the Public Improvements or for any other purpose, except for the repayment of the 1998 Bonds, unless otherwise approved in writing by each District. Section 4.4 Inclusion and Exclusion of Property. As contemplated in the Service Plan, District No. 1 shall process and approve the inclusion of platted property that is excluded from District No. 2 following infrastructure development. Upon petition of any property owner for the inclusion or exclusion of any other property into or from District No. 1, the Board of District No. 1 shall, prior to conducting any public hearing thereon, notify District No. 2 of such petition in writing. Before granting any petition for inclusion of such property into District No. 1, the Board of District No. 1 shall impose all conditions for inclusion established by District No. 2. District No. 1 shall exclude no property from District No. 1 without the prior written approval of District No. 2. All taxable property located within the original boundaries of District No. 1 shall remain liable for the repayment of its proportionate share of outstanding 1998 Bond indebtedness thereon in accordance with State law. Section 4.5 Dissolution of District No. 2. Upon receipt of notice and the dissolution of District No. 2 in accordance with the Service Plan, District No. 2 shall transfer, and District No. 1 shall accept responsibility for the operations and maintenance of all Public Improvements located within the Service Area that have not been transferred to the County or another district or public agency. Section 4.6 Organization of Additional Districts. No other special district or subdistrict shall be organized within the boundaries of either of the Districts without (i) the prior consent in writing of the affected District in accordance with State law and (ii) the County's approval of an amendment of the Service Plan relating thereto. SECTION 5. DISTRICT NO. 2 RESPONSIBILITIES Section 5.1 Imposition of the District No. 2 Required Mill Levy. Until such time as (i) the 1998 Bonds and all 100141345.DOC /1 12 other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 2 shall: a. Provide written notice to District No. 1 of the District No. 1 Required Mill Levy in accordance with Section 4.1(a). b. Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, certify the District No. 2 Required Mill Levy on property within its boundaries no later than December 1 of each year in accordance with statutory requirements. c. District No. 2 shall apply the Project Revenues in the following priority: (i) first, for payment of Administrative Expenses; then (ii) funding on or before December 31, 2009 a reserve for the repayment of the 1998 Bonds in the amount of $200,000 ("Bonds Reserve"); then (iii) payment of the Process of Construction costs and the repayment of all Obligations other than the 1998 Bonds; and then (iv) the funding of any other amenities, facilities or equipment as may be determined beneficial to the Development or as may otherwise be provided in this Agreement. d. In the event District No. 1 does not receive sufficient revenues from its District No. 1 Required Mill Levy to make payment of principal of and interest on the 1998 Bonds, District No. 2 shall remit funds from the Bond Reserve to District No. 1 in an amount sufficient for District No. 1 to make payment on the 1998 Bonds. At such time when the 1998 Bonds are paid in full, the Bond Reserve shall be released to District No. 2 for expenditure in accordance with the Funding Priorities. e. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 2 to the County authorizing the District No. 2 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. f. It shall be the duty of the Board of District No. 2 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section District No. 2 Required Mill Levy, including without limitation conducting a special election in November 2009 to authorize the )00141345.DOC /) 13 District No. 2 Required Mill Levy and any other obligations requiring electoral approval set forth herein. The Board of District No. 2 shall levy, certify and collect the District No. 2 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in this Agreement. District No. 2. in cooperation with District No. 1 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and apply all amounts realized from the sale of any real or personal property for delinquent taxes in accordance with the provisions of this Agreement. g. At any and all times, District No. 2 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certification and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 5.2 General Responsibilities. District No. 2 shall exercise such duties and authority and shall have all the powers as are generally provided by State law and in the Service Plan. District No. 2, in its reasonable discretion, shall perform the following services and exercise the following powers for and on behalf the Districts: a. Manage and control the financing of the Public Improvements and the Processing of Construction, the payment of Administrative Expenses, and the completion of all actions, activities and work required to implement the Service Plan and this Agreement in conformance with the Funding Priorities; b. Budget and appropriate monies for public purposes in conformance with the Funding Priorities and provide for the payment of all expenses of the Districts; c. Establish uniform rules and regulations for inclusion of property into the Districts in accordance with provisions of the Service Plan; the the d. Adopt and enforce uniform rules and regulations for administrative and operating purposes applicable throughout the Service Area; connections fees, tap fees, fees, and other rates, fees, (00141345.DOC /1 system development fees, facility tolls and charges for the provision 14 • • of the Public Improvements and services within the Districts, which shall be applied uniformly throughout the Service Area; f. Negotiate, prepare and enter into all applications, permits, licenses, agreements or other documents necessary to secure all applicable federal, State, County, and local approvals or other governmental authorizations for the financing, Processing of Construction, and operation and maintenance of the Public Improvements; g. Own, manage, operate, maintain and replace the Public Improvements and all property of the Districts for the general benefit of and use by all property owners, residents and related persons within the Service Area, without discrimination between the various areas of the Districts, until transferred to the County or another district or public agency. To the extent not previously effectuated, District No. 1 hereby transfers and assigns all of its interests in the Public Improvements and property of the Districts to District No. 2 for public use, subject to all limitations and conditions set forth herein; and h. Take all other actions required to implement and comply with the Service Plan and all agreements affecting the business affairs and interests of the Districts to which the District is or may become a party. Section 5.3 Financing of Public Improvements. District No. 2 shall finance and provide for the Process of Construction of all Public Improvements as required for each phase of the Development by incurring Obligations or using Project Revenues to pay the costs of the Process of Construction in conformance with the Funding Priorities and the provisions of the Service Plan. District No. 2 shall incur no Obligation which obligates District No. 1 or properties within District No. 1 for repayment of such Obligation except from the District No. 1 Pledged Revenues imposed, collected and remitted in accordance with the provisions hereof. District No. 2 shall apply and expend the Project Revenues in conformance with the Funding Priorities. Section 5.4 Completion of Public Improvements. District No. 2 shall be responsible for the construction, completion, operation and maintenance of the Public Improvements in accordance with the provisions of this Agreement and the Service shall, in its discretion, make all to the expenditure of any Project of Obligations for Processing of Snaprovements tire —payment of- li _ Plan. District No. 2 determinations relating proceeds Revenues and Process of Construction costs, or for any other purpose with respect to the implementation, performance or enforcement of the (40141345.DOC /) 15 • • terms of this Agreement. Except as provided for herein for the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall have no responsibility for the financing, Processing of Construction, or the operation and maintenance of the Public Improvements. District No. 2 may transfer certain Public Improvements to the County or another public agency for ownership, operation and maintenance in accordance with the provisions of the Service Plan or intergovernmental agreements. District No. 2 shall own, manage, operate and maintain for the benefit of all property owners, residents and related persons within the Districts, without discrimination between the various areas of the Districts, all Public Improvements that are not transferred to the County or another public agency. All streets and roads owned and operated by District No. 2 shall be open for public use, subject to reasonable regulations, and shall be maintained in conformance with County road standards. All other Public Improvements and facilities of the Districts shall be available for public use, subject to reasonable regulations, and shall be maintained in a commercially reasonable manner. Section 5.5 Management of Districts. District No. 2 shall manage and administer all business affairs of the Districts, including without limitation the hiring and engagement of all employees, independent contractors, consultants, advisors, accountants, auditors, attorneys and other personnel, record - keeping, accounting and financial services, payment of Administrative Expenses, liability and property insurance, and all actions relating to statutory compliance. An executive committee of the Boards shall be constituted to facilitate ongoing communication between District No. 1 and District No. 2. The executive committee shall be composed of the president of each Board and shall also include one other Board member of each District who shall be appointed, removed, and replaced by actions of the applicable appointing Board from time to time. The executive committee shall meet periodically to discuss general management issues and to provide any comments on such issues in writing to the Boards for consideration. The executive committee may, as it deems appropriate, make recommendations to the Boards on issues on the respective Board's agenda. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the decisions of the Boards in a manner consistent with the provisions and authority conferred upon each of the Districts under this Agreement. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the provisions of the Service Plan. District on any other matter as may be directed by the other District. In no event will the executive committee have any (00141345.DOC /1 16 authority to make decisions or interfere with the decisions of the Districts. Section 5.6 Administrative Expenses. To the extent that adequate funding is available from Project Revenues and other legally available sources as provided in the Fiscal Year Budget, District No. 2 shall (i) manage, operate, maintain, repair and replace all Public Improvements not transferred to the County or another district or public agency, and (ii) generally administer the operations and business of the Districts, including without limitation the payment of all Administrative Expenses or other costs associated therewith. Section 5.7 Facility Fees and Water Tap Fees. District No. 1 has entered into certain facility fee and water tap fee agreements with developers within the District. All facility fees and water tap fees paid pursuant to such agreements (regardless of designation) shall be considered Project Revenues, unless previously pledged for the repayment of any Obligations, and shall be collected and used by District No. 2 for the completion of the Public Improvements in accordance with the provisions of Section 5.4. As recognized under the Original Agreement, this Agreement shall constitute an assignment to District No. 2 of all rights and interests of District No. 1 in and to such facility fees and water tap fees. SECTION 6. EVENTS OF DEFAULT AND REMEDIES Section 6.1 Events of Default by Districts. Subject to the terms of Section 6.5, a Default or an Event of Default by either Party under this Agreement shall mean one or more of the following events: a. Any representation or warranty made in this Agreement by a Party which was materially inaccurate when made or is proven to be materially inaccurate during the Term; b. Failure of District No. 1 to impose the District No. 1 Required Mill Levy in any year or to remit District No. 1 Pledged Revenue to District No. 2; or c. Failure of District No. 2 to impose the District No. 2 Required Mill Levy in any year; or d. A Party fails to substantially observe, comply with or perform any material responsibility, obligation, duty or agreement required of it under this Agreement; provided, perform any responsibility or obligation hereunder shall not relieve or release either District from imposing the District No. (00141345.DOC /1 17 1 or District No. 2 Required Mill Levy, as applicable, and further provided that failure by either District to observe or perform any duty, responsibility or obligation hereunder shall not relieve or release the other District from making any payment, levying any property tax, otherwise performing its responsibilities hereunder, or result in an amendment or the termination of this Agreement. Section 6.2 Cure Period. Except as more specifically provided in subsection a. hereof with regard to District No. l's failure to impose the District No. 1 Required Mill Levy, upon the occurrence of an Event of Default by either Party, such Party shall, upon written notice from the other Party, proceed promptly to cure or remedy such Default. Such Default shall be cured within 30 days (or immediately with respect to a monetary payment Default) after receipt of such notice, or, if such default is of a nature which is not capable of being cured within such time period, curative action shall be commenced within the cure period and diligently pursued to completion. a. In the event that District No. 1 fails to impose the District No. 1 Required Mill Levy or District No. 2 fails to impose the District No. 2 Required Mill Levy by December 1 of any year, the defaulting District shall have no opportunity to cure and, in order to ensure that the District No. 1 Required Mill Levy or the District No. 2 Required Mill Levy, as applicable, is certified by December 15 of such year, the non - defaulting District, may, without further notice to the defaulting District, immediately proceed with the remedies set forth in Section 6.3. Section 6.3 Remedies on Default. Whenever an Event of Default occurs and is not cured or cure undertaken in accordance with the provisions of Section 6.2, the non -defaulting Party may take any one or more of the following actions: a. Recovery of actual costs and damages, including reasonable attorney fees and related expenses, through any action available at law or in equity, including without limitation the right of District No. 2 to certify to the County for collection against all taxable property within District No. 1, the amount of such costs and damages as a delinquent fee for services provided by District No. 2 in accordance with the procedures set forth in Section 32-1-1101(1)(e), C.R.S., or other special proceedings; b. In the event that either District has not —tfie—Diatri-ct—No, 1 or i�iatriot—Nv. 2 t quircd - Mill _ Levy, as applicable, the non -defaulting District may, subject to the provisions of the 1998 Bond Resolution, enforce the (00141345.0O0 /) 18 defaulting District's obligation to certify the District No. 1 or District No. 2 Required Mill Levy, as applicable, by mandamus or other action or special proceeding; c. In the event that District No. 2 fails to perform any management or operational responsibility specified herein and to cure or remedy such Default within the applicable cure period, District No. 1 may exercise temporary management responsibility over, or petition the District Court to appoint a conservator for, the Public Improvements and facilities of the Districts, including without limitation the levy, collection and expenditure of the Project Revenues to repay any Obligations currently due and to pay the Administrative Expenses of the Districts, until District No. 2 has cured or remedied such Default. In no event shall this Agreement be amended by District No. 1 in the event District No. 1 exercises its rights under this subsection c.; and d. Any other remedy available at law, in equity, or specified under the terms of this Agreement or the Service Plan, including without limitation specific performance or injunction. Section 6.4 Waivers. Except as otherwise expressly provided in this Agreement, any delay by either Party in asserting any right or remedy under this Agreement shall not operate as a waiver of any such right or limit such right in any way. Any waiver in fact made by such Party with respect to any Default by the other Party shall not be considered as a waiver of rights with respect to any other Default by the non -defaulting Party or with respect to the particular Default, except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of any right or remedy provided in this Agreement by waiver, laches or otherwise at a time when it may still hope to resolve any problem created by such Default. Section 6.5 Unavoidable Delay in Performance. Whether stated or not, all periods of time in this Agreement are subject to the provisions of this Section. Neither Party shall be considered in Default of its obligations under this Agreement in the event of unavoidable delay due to: (i) causes beyond its control and without its fault or negligence, including without limitation acts of God, public enemies, the federal, State, County or other local governments, the other Party or third parties, litigation concerning the validity and enforceability of thcServ' Agreement (including the effect of petitions for initiative or referendum), (00141345.DOC /1 or relating to transactions contemplated herein 19 fires, floods, epidemics, restrictions, strikes, embargoes, and unusually severe weather or the delays of contractors or materialmen due to any of such causes; (ii) bankruptcy, insolvency, reorganization or similar actions under laws affecting creditor's rights, or any foreclosure or other exercise of remedies of any creditor or lender in connection therewith; and (iii) without limiting any of the foregoing, any action or inaction of the County, its officers, agents, agencies, departments, committees or commissioners which delays, directly or indirectly, the District's ability to perform, complete or comply with any schedule or requirement imposed by this Agreement, the Service Plan, or any Public Improvement project. In the event of the occurrence of such unavoidable delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for the actual period of such delay; provided that the Party seeking the benefit of the provisions of this Section shall, within 30 days after such Party knows of such delay, first notify the other Party of the specific delay in writing and claim the right to an extension of performance for the period of such delay; and provided further that either Party's failure to notify the other of an event constituting an unavoidable delay shall not alter, detract from or negate its character as an unavoidable delay, if such event of delay was not known or reasonably discoverable by such Party. Section 6.6 Rights and Remedies Cumulative. The rights and remedies of the Parties under this Agreement are cumulative, and the exercise by either Party of any one or more of such rights shall not preclude the exercise by it, at the same or different times, of any other right or remedy specified herein for any other Default by the other Party. SECTION 7. MISCELLANEOUS PROVISIONS Section 7.1 Title of Sections. Any title of the several parts and sections of this Agreement are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. Section 7.2 Effective Date. This Agreement shall be in full force and effect and be legally binding upon each District upon the date of its execution by the Parties. On and after the effective date, the Original Agreement shall be terminated, amended and superseded in its entirety by this Agreement. All terms and provisions of this Agreement shall apply to any and all actions and requirements of each District for the 2009 Fiscal Year and each Fiscal Year thereafter during the Term. Section 7.3 No Third -Party Beneficiary. No third -party beneficiary rights shall be created in favor of any person not a (00141345.D0C /1 20 Party to this Agreement, unless the Parties mutually agree otherwise in writing. Section 7.4 Applicable Law. The laws of the State of Colorado shall govern the interpretation and enforcement of this Agreement. Venue shall be exclusive to the District Court in and for Weld County, Colorado. Section 7.5 Assignment. This Agreement shall not be assigned, in whole or in part, by either Party without the approval in writing of the other Party. This Agreement shall be binding on the Parties, their successors and assigns. Section 7.6 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under present or future laws effective during the Term, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by the severance of such provision from this Agreement. Further, in lieu of such illegal, invalid or unenforceable provision, there shall be added, as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable, and this Agreement shall be deemed reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of the payments required by the terms of this Agreement are determined by a court of competent jurisdiction in a final non -appealable judgment to be contrary to public policy or otherwise precluded, the Parties shall proceed in good faith to promptly restructure and/or amend this Agreement, or to enter into a new agreement to effectuate such purpose. Section 7.7 Service Plan Modifications. Neither District shall publish, without providing prior written notice to the other District and the County, any notice pursuant to Section 32- 1-207(3), C.R.S., of its intent to undertake the construction of any Public Improvement, the issuance of Obligations, the imposition of the Required Mill Levy or any other tax, rate, toll, fee or charge, or any other proposed activity of such District that is not consistent with the terms of the Service Plan or this Agreement and that would require any action to enjoin such activity as a potential or actual material departure from the Service Plan of such District be brought within 45 days {00141345.DOC /1 21 writing and Section 7.8 Amendments. This Agreement may be amended, in whole or in part, by written instrument executed by the Parties. Each amendment, which is in writing and signed and delivered by the Parties, shall be effective to amend the provisions hereof. Section 7.9 Entirety. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in their entirety any prior agreements, understandings, warranties or representations between the Parties with respect to the subject matter hereof, including without limitation the Original Agreement. Section 7.10 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. Section 7.11 Notices. A notice or demand under this Agreement by either Party to the other Party shall be in writing and shall be deemed sufficiently given if delivered in person, by prepaid overnight express mail or national overnight courier service, or if forwarded by registered or certified mail, postage prepaid, return receipt requested, by electronically -confirmed facsimile transmission, and addressed as follows: a. Until subsequently changed, to: Beebe Draw Farms Metropolitan District No. 1 Attention: President 16500 Beebe Draw Farms Parkway Platteville, Colorado 80651 Beebe Draw Farms Metropolitan District No. 2 Attention: President 3600 South Logan, Suite 200 Englewood, Colorado 80110 With a copy to: Paul R. Cockrel Collins Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 b. Or to such other address with respect to either Party as that Party may, from time to time, designate in forward to the other Party as provided in this s —Q —tae eetned —given � s u a al, _ courier or express mail delivery, or on the third business day following deposit in the U.S. Mail as provided herein. {00141345.D0C /) 22 Section 7.12 Good Faith of Parties. Except where any matter is expressly stated to be in the discretion of a Party, the Parties agree that in the performance of this Agreement or in considering any requested extension of time, each Party will act in good faith and shall not act unreasonably, arbitrarily, capriciously, or unreasonably withhold or delay any approval required by this Agreement. Section 7.13 Time. Unless the context indicates differently, all references herein to days shall be to calendar days, and all references herein to periods of time shall be to consecutive days or continuous periods of time. If the day for any performance or event provided for herein is a Saturday, Sunday or other day on which either national banks or the office of the Clerk and Recorder of the County are not open for the regular transaction of business, such day shall be extended until the next day on which such banks and office are open for the transaction of business. All times shall be of the essence. Section 7.14 Further Assurances. The Parties agree to adopt or approve such resolutions, regulations and agreements, to execute such documents or instruments, and to take such action as shall be reasonably requested by the other Party to confirm or clarify the provisions herein and to effectuate the agreements herein contained and the intent thereof. If all or any portion of the Public Improvements, Obligations or agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties shall cooperate in the joint defense thereof, and if such defense is unsuccessful, the Parties will use reasonable, diligent, good faith efforts to amend, reform or replace such precluded matters. Section 7.15 Certifications. The Parties agree to execute such documents or instruments as the other Party may reasonably request to verify or confirm the status of this Agreement or other intergovernmental agreements between the Districts, and of the performance of the obligations hereunder and such other matters as either Party may reasonably request. Section 7.16 Survival of Representations and Warranties. No representations or warranties whatever are made by any Party to this Agreement, except as specifically set forth in Section 3. The representations and warranties made by the Parties to this Agreement, and all covenants and agreements to be performed or complied with by the Parties under this Agreement shall be continuing to the end of the Term. 100141345.000 /1 23 • • In Witness Whereof, the Districts have caused this Agreement to be duly executed as of the day first above written. ATTEST: Sec a Secretary BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By: .� Ci in : � President BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: (00140177.DOC/) Hello