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Esther Gesick
From:
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To:
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Attachments:
Record of
-oceedings - Suppor
Bruce Barker
Wednesday, January 07, 2009 3:36 PM
Esther Gesick
FW: Beebe Draw - Record of Proceedings Email #5
Record of Proceedings - Supporting Docs 1-3 (OO1521O8).PDF
Original Message
From: Kathryn Garner [mailto:kgarner@CCCFIRM.COM]
Sent: Friday, January 02, 2009 4:36 PM
To: Kathryn Garner; Bruce Barker; Paul Cockrel; MaryAnn McGeady; Richard N. Lyons
Cc: Cyndy Giauque; Kristin Bowers
Subject: Beebe Draw - Record of Proceedings Email #5
Attached please find document numbers 1-3 of the Supporting Documents,
including the original IGA, Amended and Restated IGA, and the blacklined
comparison of the two.
Kathryn L. Garner
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
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RECORD OF PROCEEDINGS
BEEBE DRAW METROPOLITAN DISTRICT NO. 1 ("DISTRICT NO. 1")
EXCLUSION OF REI LIMITED LIABILITY COMPANY ("REI") PROPERTY
Supporting Documents:
1. Original IGA
2. Blacklined Comparison of Original and Amended & Restated IGA's
3. Amended & Restated IGA *
4. Consolidated Service Plan (May 1999)
5. Letters of Resignation from Christine Hethcock, Tom Burk, and Dan
Sheldon
6. Court Order of Exclusion of REI Property
7. Petition for Exclusion of "Directors' Parcel"
* Also included in Board Order of Exclusion of REI's Property
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SUPPORTING DOCUMENTS
# 1. ORIGINAL IGA
S
INTERGOVERNMENTAL AGREEMENT
THIS INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and
entered into as of this .day of August, 2001, 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"), 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
("Development") by cooperatively providing for the financing,
acquisition, construction, installation, completion and operation
of public infrastruction improvements and furnishing services for
the use and benefit of the property owners, residents and users
of the public improvements within the Development.
EeebeDnw/AgrammW
IGA-ERemtlonVe"lon
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B. The Consolidated Service Plan of the Districts dated
May 1999 ("Service Plan"), which has been previously approved by
the County, requires that the Districts enter into an
intergovernmental agreement to, among other matters, coordinate
the financing, construction, completion, and operation 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, and operation of the public improvements needed
within the Development, and District No. 1 will impose a property
tax levy on all taxable property within District No. 1 boundaries
and, after payment of debt service on its outstanding bonds, will
remit the taxes and other revenue collected by it to District
No. 2.
D. 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
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taxes, and the incurring of debt, when so authorized by their
respective Boards of Directors.
E. 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 had
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. Such
electoral action constitutes the legal authorization for this
Agreement, and the performance of the terms of this Agreement
requires no further electoral approval from either District.
F. 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
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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.
AGREEMENT
In consideration of the agreements, terms and conditions set
forth in this Agreement, the adequacy and sufficiency of which
are mutually acknowledged, the Districts agree as follows:
SECTION 1. DEFINITIONS AND CONSTRUCTION OF AGREEMENT
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
meanings. If any term is capitalized in this Agreement but not
defined hereunder, it shall have the meaning set forth in the
Service Plan.
a. "Agreement" means this Intergovernmental
Agreement between the Districts, as may be amended
or supplemented in writing from time to time.
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b. "Financial Plan" means the financial plan of
the Districts as set forth in the Service Plan,
including any amendment or modification thereof
approved by the County.
c. "Board" or "Boards" means the Board of
Directors of District No. 1, District No. 2 or
both Districts, as applicable.
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 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 the administration and operations of
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the Districts, for the Process of Construction, or
for other public purposes, and are repayable from
Pledged Revenues or from other legally available
revenues of the Districts.
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"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" means the Beebe Draw Farms
Metropolitan District No. 1, originally organized
on August 20, 1986 as Beebe Draw Farms
Metropolitan District, a ' Colorado special
district, and any successor or assign.
i. "District No. 2" means the Beebe Draw Farms
Metropolitan District No. 2, organized on November
24, 1999, a Colorado special district, and any
successor or assign.
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"Election" means the special election
conducted by each District on November 2, 1999, at
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which the electors of each District authorized the
District to incur Obligations and enter into
agreements related thereto, including without
limitation this Agreement.
k. "Fiscal Year Budget" means the annual
District budget and appropriation resolution duly
adopted or amended by the Board in accordance with
State law.
1. "Mill Limitation" means any limitation on the
Required Mill Levy as set forth in the Service
Plan or in any ballot issue approved at the
Election or at a prior regular or special election
of District No. 1.
m. "Obligations" means all limited or unlimited
property tax bonds, revenue bonds, notes,
contracts, or reimbursement, acquisition or
redevelopment agreements of the Districts,
including without limitation the 1999 Notes,
Developer Advances and refunding Obligations, that
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are secured by Pledged Revenues as provided in any
resolution, indenture or agreement authorizing
the issuance of such Obligations.
n. "Operating Revenues" means all revenues
received from (i) the Required Mill Levy to be
used for administrative and operating purposes,
(ii) specific ownership taxes, and (iii) all
rates, fees, tolls, and charges imposed or
collected within the Districts, including without
limitation developer fees and water tap fees,
unless otherwise pledged for the repayment of the
Obligations.
o. "Pledged Revenues" means all amounts payable
to District No. 2 from Operating Revenues after
payment of principal of, interest on, and other
costs related to the 1999 Notes, or attributable
to the Required Mill Levy after payment of
principal of, interest on, and other costs related
to the 1998 Bonds, and pledged to (i) the
repayment of the Obligations, (ii) the payment
of costs of the Process of Construction, and (iii)
the payment of the administrative and operating
costs of the Districts.
p. "Process of Construction" or "Processing of
Construction" means activities, in part or all
together, of the District with respect to
providing, completing and/or acquiring the Public
Improvements, including without limitation the
planning, designing, engineering, testing,
permitting, inspecting, construction, construction
management, installation or completion of the
Public improvements.
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"Public Improvements" means the streets,
drainage, traffic and safety controls, water,
parks and recreation, mosquito control,
transportation, and other public improvements,
facilities, equipment, land and related
appurtenances described or authorized in the
Service Plan.
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r. "Required Mill Levy" means the mill levy
required to be imposed hereunder in accordance
with State law upon all real and personal property
in District No. 1, at the rate determined annually
by District No. 2, and the property tax revenue
generated therefrom, subject to the following
limitations:
(i) all terms and limitations set forth in the
ballot issues authorizing this Agreement, the
Obligations, and all mill levies approved at the
Election or at a prior regular or special election
of District No. 1; (ii) for collection in tax
collection years 2001 through 2026 or until the
date of repayment of the 1998 Bonds and all
Obligations, whichever last occurs; (iii) which
shall be imposed without limitation and at a rate
sufficient to pay, when due, the 1998 Bonds and
which shall be applied for the payment of
principal of, interest on, and other costs related
to the 1998 Bonds before any other use or
application; and (iv) which shall be imposed at a
rate sufficient to pay, when due, all other
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Obligations, the costs of the Process of
Construction, and administrative and operating
expenses of the Districts, subject to the Mill
Limitation, but not to exceed 40 mills for
operating purposes. In the event that the method
of calculating the assessed valuation of property
within District No. 1 or the percentage of actual
valuation used to determine assessed valuation of
the District is changed by State law during the
Term, the Required Mill Levy shall be adjusted
accordingly, subject to the Mill Limitation.
s. "Service Area" means the service area, and all
property within the boundaries, of District No. 1
as described in the Service Plan.
t. "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.
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u. "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, repaid all
Obligations, and been dissolved or consolidated in
accordance with provisions of the Article 1 of
Title 32, C.R.S.
v. "1998 Bonds" means the General Obligation
Bonds, Series 1998 of District No. 1 in the
principal amount of $2,000,000, and any refunding
or refinancing bonds issued in accordance with the
1998 Bond Resolution.
w. "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.
x. "1999 Notes" means the Subordinate Revenue
Notes, Series 1999 of District No. 1 in the
principal amount of $500,000, and any refunding or
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refinancing notes issued in accordance with the
1999 Note Resolution.
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"1999 Note Resolution" means the Resolution
authorizing the issuance of the 1999 Notes adopted
by the Board of District No. 1 on August 17, 1999.
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
determination of either approval or disapproval. References to
sections herein are to sections of this Agreement, unless
otherwise specified.
SECTION 2. PURPOSE
The purpose of this Agreement is to establish the
intergovernmental relationship between the Districts and to
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implement the terms of the Service Plan with respect to the
financing, Processing of Construction, operation and maintenance
of the Public Improvements, and the provision of services within
the Service Area. 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 District knows of no litigation,
proceeding, initiative, referendum, investigation, or threat of
any of the same contesting the organization or powers of the
District or its officials or its authority to enter into and
perform its obligations under this Agreement;
b. The execution and delivery of this Agreement
and the documents required hereunder and the consummation of the
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transactions contemplated by this Agreement will not (1) conflict
with or contravene any law, order, rule or regulation applicable
to the District or to the District's governing documents; (2)
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 (3) permit any party to terminate any such
agreement or instrument or to accelerate the maturity of any
indebtedness or other obligation of the District;
c. The Board has duly approved this Agreement;
d. 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, and
subject to all limitations set forth herein;
e. All property tax revenue from the Required
Mill Levy received by District No. 2 shall be subject to the
provisions of the 1998 Bond Resolution and shall be used first
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for the (i) repayment of the 1998 Bonds and next only for the
(ii) repayment of any Obligations, (iii) payment of Process of
Construction costs, and (iv) payment of administrative and
operating costs of the Districts, or as may otherwise be provided
in this Agreement;
f. Each District may rely upon and enforce all
representations, warranties, and agreements set forth in this
Agreement; and
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The Districts, and not the County, shall be
responsible for paying all debts and liabilities of the
Districts.
Section 3.2 Performance of Agreement. The Districts each
acknowledge that the performance of this Agreement over the full
Term is essential to the complete implementation of 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 a material departure from the Service Plan which; in
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addition to any other remedy set forth herein, the other 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 Required Mill Levy. Until such
time as the 1998 Bonds and all Obligations, including all
Obligations issued pursuant to the Developer Advances, have been
paid in full or payment thereof has been provided for, and all of
the Public Improvements have been completed and paid for,
District No. 1 shall:
a. Certify the Required Mill Levy at least 15
days before all applicable timelines in accordance with State law
and provide notice of such certification to District No. 2. On
or before September 15 of each year during the Term, District No.
2 shall determine and advise District No. 1 of the Required Mill
Levy to be included in the Fiscal Year Budget for the next
fiscal year, and District No. 1 shall then adopt a resolution
establishing the Required Mill Levy. When collected and after
the payment ofprincipal of, interest on, and other costs related
to the 1998 Bonds, the Required Mill Levy, together with any
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specific ownership taxes received by District No. 1, shall,
subject to the provisions of the 1998 Bond Resolution, be
remitted to District No. 2 in accordance with the provisions of
this Agreement. To the extent that principal and interest
payments on the 1998 Bonds have not been made, District No. 2
shall first pay from the Required Mill Levy all principal and
interest due on, and other costs related to the 1998 Bonds, and
shall then use and apply the remainder of the Required Mill Levy
for the other purposes specified in this Agreement.
b. The provisions of this Section are hereby
declared to be the certificate of the Board of District No. 1 to
the County authorizing the Required Mill Levy to be levied by the
County, from year to year, as required by law for the purposes
set forth herein.
c. 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
Required Mill Levy, subject to the provisions of the 1998 Bond
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Resolution. The Board of District No. 1 shall levy, certify, and
collect the 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 amounts realized from the
sale of any property for delinquent taxes to District No. 2 in
accordance with the provisions of this Agreement.
d. District No. 1 shall be prohibited from
retaining, appropriating, expending, pledging or otherwise
encumbering any portion of the Required Mill Levy (except for the
payment of principal of, interest on, and other costs related to
the 1998 Bonds), any specific ownership taxes, or any Pledged
Revenues or Operating Revenues that are received by District No.
1 for any purpose, and all of such revenues and monies shall,
subject to the provisions of the 1998 Bond Resolution, be
immediately transferred and paid to District No. 2 in accordance
with the provisions of this Agreement.
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e. 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 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 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
District No. 2 pursuant to Section 5 in order to repay the
Obligations or to fund the Process of Construction costs and the
administrative and operating expenses of the Districts. The
procedures for adopting, budgeting and transferring such fees
will be established by District No. 2.
Section 4.3 District No. 1 Obligations. District No. 1
shall incur no Obligations, Developer Advances, or direct costs
for Processing of Construction of the Public Improvements or any
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other purpose, except for the 1998 Bonds and 1999 Notes„ unless
otherwise approved in writing by each District.
Section 4.4 Inclusion and Exclusion of Property. Upon
petition of any property owner for the inclusion or exclusion of
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. Before granting any petition
for inclusion of such property into the District, the Board of
District No. 1 shall impose all conditions for inclusion
established by District No. 2. District No. 1 shall exclude no
property without the prior written approval of District No. 2.
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.
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SECTION 5. DISTRICT NO. 2 RESPONSIBILITIES
Section 5.1 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 discretion, shall perform the
following services and exercise the following powers for and on
behalf of District No. 1:
a. Manage and control the financing of the Public
Improvements, the Processing of Construction, the administration
and operations of the Districts, and the completion of all
actions, activities and work required to implement the Service
Plan and this Agreement;
b. Budget and appropriate monies for public
purposes and provide for the payment of all expenses of the
Districts;
c. Establish uniform rules and regulations for the
inclusion of property into the Districts in accordance with the
provisions of the Service Plan;
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d. Adopt and enforce uniform rules and regulations
for administrative and operating purposes applicable throughout
the Service Area;
e. Establish all necessary service charges,
connections fees, tap fees, system development fees, developer
fees, and other rates, fees, tolls and charges for the provision
of the Public Improvements and services within and without the
boundaries of the Districts;
f. Negotiate, prepare and enter into all
applications, permits, licenses, agreements or other documents
necessary to secure all applicable federal, State, regional, and
local approvals or other governmental authorizations for the
financing, Processing of Construction, and operation and
maintenance of the Public Improvements;
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Own, operate and maintain the Public
Improvements until transferred to the County or another district
or public agency; and
h. Take all other actions required to implement
and comply with the Service Plan and all agreements affecting the
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business affairs and interests of the Districts to which the
District is or may become a party.
Section 5.2 Financing of Public Improvements. After the
effective date of this Agreement, 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 Pledged Revenues to pay the costs
of the Process of Construction in accordance with the Service
Plan. The Obligations incurred by District No. 2 shall be
issued, paid and discharged, and proceeds of the Obligations
shall be applied and expended in accordance with the Service
Plan. District No. 2 will incur no Obligation in excess of any
maximum debt authorization set forth in the Service Plan.
District No. 2 shall apply and expend the Required Mill Levy,
after the payment of principal of, interest on, and other costs
related to the 1998 Bonds, only for (i) the repayment of
Obligations incurred for the Public Improvements, (ii) payment of
Process of Construction costs, and (iii) payment of
administrative and operating costs of the Districts.
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Section 5.3 Completion of Public Improvements. District
No. 2 shall be responsible for the completion of the Public
Improvements in accordance with the provisions of this Agreement
and the Service Plans. District No. 2 shall, in its discretion,
make all determinations relating to the expenditure of proceeds
of the Obligations for Processing of Construction of the Public
Improvements and the payment of all Process of Construction
costs, or for any other purpose with respect to the
implementation, performance, or enforcement of the terms of this
Agreement. District No. 1 shall have no responsibility for the
financing or Processing of Construction of the Public
Improvements. District No. 2 shall transfer certain Public
Improvements to the County or another district or public agency
for ownership, operation and maintenance in accordance with the
provisions of the Service Plan. District No. 2 shall own, operate
and maintain for the benefit of the Districts all Public
Improvements that are not transferred to the County or another
district or public agency.
Section 5.4 Management of Districts. District No. 2
shall manage and administer all business affairs of the
Districts, including without limitation the hiring and engagement
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of all employees, independent contractors, consultants, advisors,
accountants, auditors, attorneys and other personnel, record -
keeping, accounting and financial services, and all actions
relating to statutory compliance.
Section 5.5 Costs of Administration and Operations. To
the extent that adequate funding is available from Operating
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 costs
associated therewith. On or before September 15 of each year
during the Term, District No. 2 shall advise District No. 1 of
the costs of administration and operations and the funding
requirements, including projected Operating Revenues, for the
next budget period and present a preliminary Fiscal Year Budget
for adoption by the Board of District No. 1 in accordance with
statutory requirements, subject to any limitation under the
Required Mill Levy.
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Section 5.6
Developer Fees and Water Tap Fees. District
No. 1 has entered into certain developer fee and water tap fee
agreements with developers within the District. All developer
fees and water tap fees paid pursuant to such agreements shall be
considered Pledged Revenue, unless otherwise pledged for the
repayment of the 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 5.3. This Agreement
shall constitute an assignment to District No. 2 of all rights
and interests of District No. 1 in and to such developer fees and
water tap fees, subject to the provisions of the 1999 Note
Resolution.
SECTION 6. EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default by Districts. Subject to
the terms of Section 6.5, Default or an Event of Default by
either Party under this Agreement shall mean one or more of the
following events:
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a. Any representation or warranty made in this
Agreement by a Party which was materially inaccurate when made or
shall prove to be materially inaccurate during the Term; or
b. A Party fails to substantially observe,
comply with or perform any material responsibility, obligation,
or agreement required of it under this Agreement; provided,
however, that failure on the part of District No. 2 to observe or
perform any responsibility or obligation hereunder shall not
relieve or release District No. 1 from imposing the Required Mill
Levy, and that failure by either District to observe or perform
any other responsibility or obligation hereunder shall not
relieve or release the other District from making any payment or
otherwise performing its responsibilities hereunder.
Section 6.2 Cure Period. 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 (immediately
with respect to a Required Mill Levy or 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,
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curative action shall be commenced within the cure period and
diligently pursued to completion.
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 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 District No. 1 has not
certified the Required Mill Levy, District No. 2 may, subject to
the provisions of the 1998 Bond Resolution, enforce District No.
1's obligation to certify the Required Mill Levy by mandamus or
other action or special proceeding; and
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c. 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.
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
30
to 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 County, federal, State or other local governments,
the other Party or third parties, litigation concerning the
validity and enforceability of the Service Plan, contracts
implementing the Service Plan or this Agreement or relating to
transactions contemplated herein (including
petitions for initiative or referendum),
epidemics, restrictions, strikes, embargoes, and
the effect of
fires, floods,
unusually severe
weather or the delays of contractors or materialmen due to such
causes; (ii) bankruptcy, insolvency or similar action, or any
foreclosure or other exercise of remedies of any creditor or
lender; and (iii) without limiting 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 comply with any
construction schedule or requirement imposed by this Agreement,
the Service Plan, or any Public Improvement project. In the event
of the occurrence of any such unavoidable delay, the time or
times for performance of the obligations of the Party claiming
31
• •
delay shall be extended for the 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 for the period of
such delay; 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
32
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. All terms and
provisions of this Agreement shall apply to any and all actions
and requirements of each District for the 2001 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
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 State District Court
in and for the County.
Section 7.5 Assignment. This Agreement shall not be
assigned, in whole or in part, by either Party without the
33
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,
34
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
of such notice.
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.
35
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.
Section 7. Counterparts. This Agreement may be executed
in counterparts, each of which shall constitute one and the same
instrument.
Section 7. 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, and addressed as follows:
a. Until subsequently changed, to:
District No. 1 or
District No. 2
Attention: Chairman
11409 West 17th Place
Lakewood, Colorado 80215
36
• •
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
writing and forward to the other Party as provided in this
Section. Notices shall be deemed given upon such personal,
courier or express mail delivery, or on the third business day
following deposit in the U.S. Mail as provided herein.
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
37
• •
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 intent of the provisions hereof and to effectuate the
agreements herein contained and the intent hereof. 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.
38
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 the requesting 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.
In Witness Whereof, the Districts have caused this Agreement
to be duly executed as of the day first above written.
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 1
By:
Secretary
Secretary
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 2
By:
40
Pre
SUPPORTING DOCUMENTS
# 2. BLACKLINED COMPARISON OF ORIGINAL AND AMENDED &
RESTATED IGA'S
DRAFT
10/31/08
AMENDED AND RESTATED
INTERGOVERNMENTAL AGREEMENT
THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT
("Agreement") is made and entered into as of this —3rd day of
August, 2001,November, 20081 by and between the BEEBE DRAW FARMS
METROPOLITAN DISTRICT NeNO. 1 ("District No. 1") and the BEEBE
DRAW FARMS METROPOLITAN DISTRICT NeNO. 2 ("District No. 2";
collectively, "Districts"+T 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 —f, also
known as Pelican Lake Ranch (the "Development"),_ by cooperatively
providing for the financing, acquisition, construction,
installation, completion and„_ 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.
0413940-0MAom nor /}s , n .bmemingtatmaionimilm
B. The Consolidated Service Plan of the Districts dated
May 1999 ("Service Plan"), which has been and previously approved
by the County, requires that the Districts enter into an
intergovernmental agreement to, among other matters, coordinate
the financing, construction, completion, and 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, and 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
District No. lits 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
amend and restate the Original Agreement in its entirety in order
to better describe and confirm the cooperative relationship and
current understandings between the Districts.
10613044O-00140001.DOC /1
2
E. Dr —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 had
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. Such
elect ral acti n constitutes the legal authorization for thin
Agreement, and the perf rmancc of the tcrmo of thin Agreement
requirca no further electoral approval from either Diotrict.
G. F. 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
100139440.2 4 24_DOC /1
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.
AGREEMENT
In consideration of the agreements, terms ands 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 AGREEMENT
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
meanings. All capitalized terms defined in the Recitals are
incorporated herein by this reference. If any term is
capitalized in this Agreement but not defined hcrcundcrherein, it
shall have the meaning set forth in the Service Plan.
{00139440.00140001.DOC /I
4
• •
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.
b. "Financial Ilan" meano the financial plan of
the Districts as set forth in the Service Plan,
including any amendment or modification -thereof
approved by the County.
c. "Board" or "Boards" means the Board of
Directors of District No. 1-7-1 or District No. a
eo2, as applicable, or the Boards of both
Districts, as applicable.
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.
(O0139410.00140001.D0C /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 the adminiotration
and operationcAdministrative Expenses of the
Districts, for the Process of Construction, or for
other public purposes, and are repayable from
PlcdgcdProject 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" means the Beebe Draw Farms
Metropolitan District No. 1, originally organized
on August 20, 1986 as Beebe Draw Farms
Metropolitan District, a Colorado special
district, and any successor or assign.
(O0139440.00140001.DOC /1
6
i. "District No. 1 Pledged Revenues" means all
revenues received from (i) the District No. 1
Required Mill Levy after payment of principal of
and interest on the 1998 Bonds, (ii) specific
ownership taxes, and (iii) all rates, fees, tolls
and charges imposed or collected within the
Districts pursuant to Section 4.2, including
without limitation facility fees and water tap
fees, unless otherwise led ed 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
ro ert 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 ro ert tax revenue generated
therefrom, subject to the following limitations:
[00139140 00140001 DOC /)
7
(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.
[961384449,-0QQ1140001.Doc /1
k. "District No. 2" means the Beebe Draw Farms
Metropolitan District No. 2, organized on November
24, 1999, a Colorado special district, and any
successor or assign.
1. "District No. 2 Required Mill Levy" means the
roperty tax levy required to be imposed b
District No. 2 upon all real and personal propert
in District No. 2 at a rate determined annually by
the Board of District No. 2, and all propert v_ 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 (bv way of
example, if the District No. 1 Required Mill Levy
is 40 mills and the portion required for payment
{00139190.001 DOC /1
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.
kn. "Financial Plan" means the financial plan of
the Districts as set forth in the Service Plan,
including any amendment or modification thereof.
(OO139aaa,49140.09 Doc /}
• •
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).
��. "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 r at a
prior regular or special election of Diotrict No.
Viand (ii) a limitation on the rate of the
property tax levy which shall not exceed 40 mills
for all purposes.
mr. "Obligations" means all limited or unlimited
property taxrate general obligation bonds, revenue
bonds, notes, contracts, or funding,
reimbursement, acquisition or redevelopment
agreements of the Districts, including without
limitation the 1999 Notc:,1998 Bonds, Developer
Advances and refunding Obligations, that are
secured by Plcdgcdthe District No. 1 Required Mill
IQQ444444,00140001.DOC /)
11
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.
n. "Operating Revenues" moans all rcvenuca
received from (i) the Required Mill Levy to be
used for administrative and operating purposes,
(ii) specific ownership taxes, and (iii) all
rates, fees, t 113, and charges imp sed or
collected within the Districts, including without
limitation developer fees and water tap fees,
un-less otherwise pledged for the repayment of the
Obligations.
"Pledged Revenues" m ano all am unto payable
to District N . 2 fr m Operating Revenues after
payment of principal of, interest on, and other
to the Required Mill Levy after payment of
principal of, interest on, and other costs related
to the 1998 B nds, and pledged to (i) the
repayment of the Obligations, (ii) the payment
of costs of the Process of Construction, and (iii)
the payment of the administrative and operating
coots f the Districts.
{GO -1-., 449,-00140001.DOC /)
12
ps. "Process of Construction" or "Processing of
Construction" means the activities, in part or all
together, of the District No. 2 with respect to
providing, completing and/or acquiring the Public
Improvements needed for the Development, including
without limitation the planning, dcsigningdesign,
engineering, testing, permitting, inspecting,
construction,
construction management,
installation -e* 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.
{O^• TDi34R41 D0C /1
•
qu. "Public Improvements" means the streets,
drainage, traffic and safety controls, water,
parks and recreation, mosquito control,
transportation, and all__other public improvements,
facilities, equipment, land and related
appurtenances described or authorized in the
Service Plan.
r. "Required Mill Levy" means the mill levy
required to be imposed hereunder in accordance
with State law upon all r al and personal property
in District No. 1, at the rate determined annually
by District No. 2, and the property tax revenue
generated therefrom, subject to the following
limitations:
(i) all terms and limitations set forth in the
ball t issues auth rising thin Agreement, the
Obligati ns, and all mill levies approved at the
Election or at a prior regular or special ciccti n
of District No. ly (ii) for collection in tax
collection years 2001 through 2026 r until the
date of repayment of the 1998 Bonds and all
Obligations, whichever last occurs, (iii) which
shall be imposed without limitation and at a rate
sufficient to pay, when due, the 1998 Bonds and
which shall be applied f r the payment f
10"x- =00140001.DOC /1
14
principal of, intcrcot on, and other coots related
to the 1998 Rondo before any other use or
application; and (iv) which ohall be impoocd at a
rate sufficient to pay, when due, all other
Obligations, the costs of the Process of
C notructi n, and administrative and operating
expenses of the Districts, subject to the Mill
Limitation, but not t exceed 40 mills for
perating purposes. In thc event that the method
of alculating thc assessed valuation of property
within District No. 1 or the percentage of actual
valuation used to determine assessed valuation of
the District is changcd by State law during the
Term, the Required Mill Lcvy shall be adjusted
aceordingly, subject to the Mill Limitation.
ev. "Service Area" means the serviccentire area, —
and of the Development, including all property
within the boundaries, of District No. 1 aa
described in the Service Plan of the Districts.
fiw. "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.
{o01-14440-A0140001.Doc /1
15
ex. "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, rcpaid 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.
sy. "1998 Bonds" means the General Obligation
Bonds, Series 1998 of District No. 1 in the
original principal amount of $2,000,000,2,000,000
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.
wz. "1998 Bond Resolution" means the Resolution
authorizing the issuance of the 1998 Bonds adopted
100139110 00140001 DOC /1
16
by the Board of District No. 1 on October 21,
1998.
x. "1999 N tcs" means thc Subordinate Revenue
N tco, Scrico 1999 f Diotrict N . 1 in the
principal amount of $500,000, and any refunding or -
refinancing notes issued in accordance with the
1999 N tc Rco luti n.
y. "1999 N tc Reoolution" means thc Resolution
authorizing the ioouancc of the 1999 Noteo adopted
by the Board of Diotrict No. 1 on Auguot 17, 1999.
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
determination of either approval or disapproval. References to
scetionaSections herein are to sections of this Agreement, unless
otherwise specified.
SECTION 2. PURPOSE
{00139110 00140001 DOC /1
17
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, warrantsr and agrees for
the benefit of the other District that to the best of its actual
knowledge:
I"3-:O00140001.DQC /k
18
a. The District knows of no litigation,
proceeding, initiative, referendum, investigation, or throat f
any of the same contesting the organization or powers of the
Oiotrict or ito officials r its authority to enter into and
perform its obligations under this Agreement; b.
The execution and delivery of this Agreement and the
documents required hereunder and the consummation of the
transactions contemplated by this Agreement will not (ii)
conflict with or contravene any law, order, rule or regulation
applicable to the District or to the District's governing
documents; (2, 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
(3ili) permit anyanother 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;
dc. 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
10013944&.9D0C /
• •
equitable principles, whether considered at law or in equity, ee4
subject to all limitations set forth herein;
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. All property tax revenue from the Required
Mill Levy received by District No. 2 shall be subject t the
provisions of the 1998 Bond Resolution and shall be used first
f r the (i) repayment of the 1998 Bonds and next my for the
(ii) repayment of any obligations, (iii) payment of Process of
Construction costs, and (iv) payment of administrative and
Aerating costs f the Districts, or as may therwisc be pr vidcd
in this Agreement,
f. Each District may rely upon
and enforce all representations, warranties, and agreements set
forth in this Agreement; and
q — 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. The Districts each
acknowlcdgcEach District acknowledges and agrees that the
(00139440.001440001.DOC /1
•
I
performance of this Agreement over the full Term is essential to
the complctc 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 othcrnon-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, and(ii) all of the Public
Improvements have been completed and paid for, (till 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
at leant 15 dayo before all applicable timelines in accordance
with State lawno later than December 1 of each year and provide
(66139446=00140001.DOC /)
prompt written notice of such certification to District No. 2,
ursuant to the followin rocess:
(i) For fiscal year 2009, 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 September 15 ofDecember 1, 2008, District No. 1
shall adopt a resolution establishing and 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 pa ment of
principal of and interest on the 1998 Bonds per the 1998 Bond
Repment 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 in fiscal year 2010 and each year
thereafter during the Term, on or before November 1, District No.
2 shall determine and 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
{00139440.0O1 DOC /}
• •
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 then, no later than December 1 of each year,
adopt a resolution establishing thc Required Mill Lcvy. When
collected and after thc payment of principal of, interest n, and
thcr c sts related to the 1998 Bonds, the Required Mill Levy,
together with any specific ownership taxes received by District
No. 1, shall, subject to the provisions of the 1998 Bond
Resolution, be remitted to District No. 2 in accordance with the
provisions of this Agreement. To the extent that principal and
intereot payments on the 1998 Bonds have not been made, District
No. 2 shall first pay fr m the Required Mill Levy all principal
and shall then use and apply the remainder f the Required Mill
Levy for the other purpooco specified in this Agrccmcnt.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
{86434448-r OOO .D0C /)
! •
rincipal 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
be applied first for the pyment of the 1998 Bonds, and then the
District No. 1 Pledged 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.
(9&}3A44GrOQ14400a1.DOC /I
ed. 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, subject t thc provisions of
thc 1998 Bond Resolution. 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.
de. District No. 1 shall be prohibited
from retaining, appropriating, expending, pledging or otherwise
encumbering any portion of the Required Mill Levy (except for the
payment of principal f, interest on, and other costs related to
the 1998 Bonds), any specific ownership taxes, or any Pledged
Revenues or OperatingDistrict No. 1 Pledged Revenues that are
received by District No. 1 for any purpose, and all of such
199439449--DZ140001.DOC /1
revenues and monies shall, subject to the provisions of the 1998
Bond Resolution, be immediately be transferred and paid to
District No. 2 in accordance with the provisions of this
Agreement.
ef. 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
District No. 2 pursuant to Section 5 in order to repay the
Obligations or to fund the Process of Construction costs and the
adminiotrative and operating exponocoAdministrative Expenses of
the Districts, and such rates, fees, tolls and charges shall be
deemed part of the District No. 1 Pledged Revenues. The
(00139440.00140001.DOC /)
26
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 and 1999 Notco„ 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
the 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
(00439449-A0140D01.DOC /k
27
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
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
(00 -(00140001. DOC /)
28
• •
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 in the 2010 fiscal and property
tax collection year, certify the District No. 2 Required Mill
Levy on property within its boundaries no later than December 1
of each year.
c. District No. 2 shall apply the Project
Revenues in the following priority: (i) first, for payment of
Administrative Expenses; then (it) 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.
(0 ,00140001.D0C /)
29
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
with reference to the establishment, levy and collection of the
District No. 2 Required Mill Levy. 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
(00139440.00001.NC' /1
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 of District No. lthe Districts:
a. Manage and control the financing of the Public
Improvements,— and the Processing of Construction, the
administration and operationo of the Diotrictapayment of
{00139110.Q DOC /1
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 the
inclusion of property into the Districts in accordance with the
provisions of the Service Plan;
d. Adopt and enforce uniform rules and regulations
for administrative and operating purposes applicable throughout
the Service Area;
e.
Establish all necessary service charges,
connections fees, tap fees, system development fees,
dcvcloperfacility fees, and other rates, fees, tolls and charges
for the provision of the Public Improvements and services within
and without the boundarica of 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,
rcgionalCounty, and local approvals or other governmental
{0013°440.00140001.OOC /)
32
authorizations for the financing, Processing of Construction, and
operation and maintenance of the Public Improvements;
g•
Own, manage, operate and, 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 5.25.3 Financing of Public Improvements. After
the effective date f this Agreement, 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 PledgcdProject Revenues to pay the
costs of the Process of Construction in acc rdancc with the
Service Plan. The Obligations incurred by District No. 2 shall
(00139440.00140001.DOC /)
33
be issued, paid and discharged, and proceeds of the Obligations
shall be applied and expended in accordance withconformance with
the Funding Priorities and the provisions of the Service Plan.
District No. 2 will incur no Obligation in excess of any maximum
debt authorization act forth in the Service Planshall 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 Required Mill Levy, after the payment of
principal f, interest on, and ther costs related t the 1998
Bonds, only for (i) the repayment of Obligations incurred for
the Public Improvements, (ii) payment of Process of Construction
costs, and (iii) payment of administrative and operating c sts of
the Districts the Project Revenues in conformance with the
Funding Priorities.
Section 5.35.4
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 Plan&Plan. District No. 2 shall, in its discretion, make
all determinations relating to the expenditure of any Protect
Revenues and proceeds of the Obligations for Processing of
Construction of the Public Improvements and the payment of all
(00139440 00140001 DOC /)
34
Process of Construction costs, or for any other purpose with
respect to the implementation, performance,— or enforcement of the
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
e� Processing of Construction, or the operation and maintenance
of the Public Improvements. District No. 2 shallmay transfer
certain Public Improvements to the County or another district or
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 district or 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 5.45.5 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 on oin 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 re laced b 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
ppropriate, 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.
(00139440. 00140001. DOC /)
36
Additionally, the executive committee may communicate to a
District on any other matter as may be directed by the other
District. In no event will the executive committee have any
authority to make decisions or interfere with the decisions of
the Districts.
Section 5.5 Costs of Administration and Operationo5.6
Administrative Expenses. To the extent that adequate
funding is available from OperatingProject 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. On r before September 15 of each
y ar during the Term, District No. 2 shall advise District No. 1
f the coots of admini tration and perationo and the funding
requirements, including projected Operating Revenues, f r tho
next budget peri d and present a preliminary Fi cal Y ar Budget
for adoption by the Board of District No. 1 in accordance with
statutory requirements, subject to any limitation under the
Required Mill Levy.
19943944&.-Q9b9QQ91,Doc /1
37
Section 5.6 Developer5.7 Facility Fees and Water Tap
Fees. District No. 1 has entered into certain dcvcloperfacility
fee and water tap fee agreements with developers within the
District. All dcvcloperfacility fees and water tap fees paid
pursuant to such agreements Ireg_ardless of designation) shall be
considered Pledged RevenuoProject Revenues, unless
othcrwioopreviously pledged for the repayment of thcany
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 5.3. Thia5.4. 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 dcvcloperfacility fees and water tap fees, oubject
to the pr viol no of the 1999 N to Resolution.
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
shall proveis proven to be materially inaccurate during the Term;
or
100139140.00140001.DOC /1
38
• •
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.
c. A Party fails to substantially observe, comply
with or perform any material responsibility, obligation, duty or
agreement required of it under this Agreement; provided, however,
that failure on the part of District No. 2 to observe or perform
any responsibility or obligation hereunder shall not relieve or
release either District No. 1 from imposing the District No. 1 or
District No. 2 Required Mill Levy, as applicable, and further
provided that failure by either District to observe or perform
any thcrduty, responsibility or obligation hereunder shall not
relieve or release the other District from making any payment ors
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. UponExcept 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
(001 91i0.00140001.DOC /)
39
• •
within 30 days (or immediately with respect to a Required Hill
Levy or 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 District No. 1 fails to impose
the District No. 1 Required Mill Levy by December 1 of any year,
District No. 1 shall have no opportunity to cure and, in order to
ensure that the District No. 1 Required Mill Levy is certified by
December 15 of such year, District No. 2, may, without further
notice to District No. 1, 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
(Q0139440 00140001 DOC /1
40
• •
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 No. 1 has
not certified the District No. 1 or District No. 2 Required Mill
Levy, Diotrict No. 2as applicable, the non -defaulting District
may, subject to the provisions of the 1998 Bond Resolution,
enforce District No. lthe defaulting District's obligation to
certify the District No. 1 or District No. 2 Required Mill Levys
as applicable, by mandamus or other action or special proceedings
c. In the event that District No. 2 fails to
perform any management or o erational res onsibilit s ecified
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
[66138449=00 40001.DOC /I
ed. 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
�DOC /I
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 County, federal,
State, County or other local governments, the other Party or
third parties, litigation concerning the validity and
enforceability of the Service Plan, contracts implementing the
Service Plan or this Agreement or relating to transactions
contemplated herein (including the effect of petitions for
initiative or referendum), 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
actionactions 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
conotruction schedule or requirement imposed by this Agreement,
the Service Plan, or any Public Improvement project. In the event
of the occurrence of any 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
(O0139410 00140001 Doc I)
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,— furthery 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
{00139440 00140001 DOC /1
44
• •
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 20012009 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
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 Statc District Court
in and for thoWeld 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
[00 -A0140001.DOC /I
45
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,
100139410.00140001.DOC /1
46
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
of such notice.
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 g-7.10
Counterparts. This Agreement may be
executed in counterparts, each of which shall constitute one and
the same instrument.
(O0139110.Q9140001.DOC /)
47
Section a-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. 1-1O;r;
Diatrict No. 2
Attention: ChairmanPresident
11409 Wcot 17th Place
16500 Beebe Draw Farms Parkway
LakcwoodPlatteville, Colorado 8021580651
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
writing and forward to the other Party as provided in this
Section. Notices shall be deemed given upon such personal,
courier or express mail delivery, or on the third business day
following deposit in the U.S. Mail as provided herein.
[^^4 00140001.D0C I)
48
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
Sunday or other day on which either
of the Clerk and Recorder of the
for herein is a Saturday,
national banks or the office
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 intent of the provisions hcrc fherein and to
(80139410.00140001.DOC /)
• •
effectuate the agreements herein contained and the intent
hcrc fthereof. 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 the requcstingeither 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.
(OO O. O140001.DOC /)
50
In Witness Whereof, the Districts have caused this Agreement
to be duly executed as of the day first above written.
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 1
By:
President
ATTEST:
Secretary
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 2
By:
President
ATTEST:
Secretary
{00139110. Q DOC /)
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SUPPORTING DOCUMENTS
# 3. AMENDED & RESTATED IGA
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
amend and tat the O
(00141345.DOC /)
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.
AGREEMENT
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 AGREEMENT
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
--terms—defined—trr—th-e--Recttais are
incorporated herein by this reference. If any term is
(00141345.DCC /f
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 received from (i)
Revenues" means all
the District No. 1
(00141345.D0C /)
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 1999 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
—4-, 99-9— ciota �e a aio�a ��_ flot =any
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 /)
5
•
q. "M.i1.1 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,
t,. rs to iel� nd a}�ethe�public tmpr vemetrts, _
facilities,
(00141345.000 /1
equipment, land and related
6
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
Sections herein are
otherwise specified.
(00141345.DOC /1
to
sections
7
of
this
Agreement,
unless
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 principle.a, whether conside ed at law or ;n equity,
subject to all limitations set forth herein;
{00141345.DOC /1
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
4 m lls, wh ch shall —by aperatio 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 /f
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
bC— appticcl—firet—far the puyment— of Ure-1-398 Bando -per -the 19-98 _
Bond repayment schedule, and then the District No. 1 Pledged
400141345.DOC /)
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
Distri-Et No--2—pursuant trsectian 5 —in ord �;,e— _
Obligations or to fund the Process of Construction costs and the
Administrative Expenses of the Districts, and such rates, fees,
(00141345.DOC /)
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
f00141345.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
400141345.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 the
inclusion of property into the Districts in accordance with the
provisions of the Service Plan;
d. Adopt and enforce uniform rules and regulations
for administrative and operating purposes applicable throughout
the Service Area;
e. Esta9rlish— a�n�c�saa
connections fees, tap fees, system development fees, facility
fees, and other rates, fees, tolls and charges for the provision
100141345,DOC /)
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
Plan. District No. 2 shall, in its discretion, make all
determinations relating to the expenditure of any Project
proceeds of Obligations for Processing of
fhe tubl c Imp verve , e�r-ate -> o� �.,ma ,+ f —ail _
Process of Construction costs, or for any other purpose with
respect to the implementation, performance or enforcement of the
Revenues and
(00141345.D0C /)
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.
n-adit�on��k3 the a cecv ve cemmIttee--may—communicate--tca
District on any other matter as may be directed by the other
District. In no event will the executive committee have any
(00141345.DOC /)
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,
no"-----,1-irre on the par-t--o-
perform any responsibility or obligation hereunder shall not
relieve or release either District from imposing the District No.
(00141345.DOC /)
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
a f ed tte—Eii riot Nr�1 or DiBtrl t --10 Required Mill _
Levy, as applicable, the non -defaulting District may, subject to
the provisions of the 1998 Bond Resolution, enforce the
(00141345.000 /)
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
thrScrvicr-Pll,.; -cone aotrimpl-cmontirrg thcSurvicc Plnn-6r-t rim _
Agreement or relating to transactions contemplated herein
(including the effect of petitions for initiative or referendum),
(00141345.DOC /I
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
{00141345.000 /)
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
ofsuch—net ce
(00141345•DOC /1
21
• •
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
Attention:
3600 South
Englewood,
Farms Metropolitan District No. 2
President
Logan, Suite 200
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
writing and forward to the other Party as provided in this
Sect -ion- N ticee==shall bo deem -d given--upa s pe sonel, _
courier or express mail delivery, or on the third business day
following deposit in the U.S. Mail as provided herein.
(00141345.DOC /)
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.
(00141345.DOC /)
23
In Witness Whereof, the Districts have caused this Agreement
to be duly executed as of the day first above written.
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 1
By:
ATTEST:
Sec a
President
BEEBE DRAW FARMS METROPOLITAN
DISTRICT NO. 2
By:
ATT T:
Secretary
foomonzooa}
Esther Gesick
From:
Sent:
To:
Subject:
Attachments:
Record of
roceedings - Servic.
Bruce Barker
Wednesday, January 07, 2009 3:36 PM
Esther Gesick
FW: Beebe Draw - Record of Proceedings Email #6
Record of Proceedings - Service Plan (OO1521O9).PDF
Original Message
From: Kathryn Garner [mailto:kgarner@CCCFIRM.COM]
Sent: Friday, January 02, 2009 4:37 PM
To: Kathryn Garner; Bruce Barker; Paul Cockrel; MaryAnn McGeady; Richard N. Lyons
Cc: Cyndy Giauque; Kristin Bowers
Subject: Beebe Draw - Record of Proceedings Email #6
Attached please find the Consolidated Service Plan (document #4 in the
supporting documents).
Kathryn L. Garner
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.
SUPPORTING DOCUMENTS
# 4. CONSOLIDATED SERVICE PLAN (MAY 1999)
CONSOLIDATED
SERVICE PLAN
FOR
BEEBE DRAW FARMS
METROPOLITAN
DISTRICT NO. 1
AND
BEEBE DRAW FARMS
METROPOLITAN
DISTRICT No. 2
May 1999
BBPMBLSERV.PLNBBC
Table of Contents
I. INTRODUCTION 1
A. Summary 1
1. Dual Districts Structure 6
2. Benefits of Dual District Structure 7
3. Configuration of Districts 9
4. Long -Term District Plan 11
5. Existing Services and Districts 11
B. General Information and Assumptions 12
C. Contents of Service Plan 15
D. Modification of Service Plan 16
II. NEED FOR NEW DISTRICT AND GENERAL POWERS 16
A. Need for New District 16
B. General Powers of Districts 17
1. Streets and Drainage 17
2. Traffic and Safety Controls 18
3. Parks and Recreation 18
4. Water 19
5. Miscellaneous Authorities 19
6. Other Services 19
7. Legal Powers 19
8. Other 20
III. DESCRIPTION OF FACILITIES AND IMPROVEMENTS 21
A. General 22
B. General Design Standards 23
1. Street System and Traffic Safety 23
2. Storm Drainage 24
3. Water System 25
4. Transit System 26
5. Park and Recreation 26
C. Estimated Costs of Facilities 27
IV. DEVELOPMENT PROJECTIONS 27
V. PROPOSED AND EXISTING AGREEMENTS 27
A. District Intergovernmental Agreement 27
B. Water Service Agreement 29
i
• •
C. County Agreement 3O
D. Developer Fee Agreement 30
E. FRICO Agreement 31
F. Other Agreements/Authority 31
VI. OPERATION AND ADMINISTRATION COSTS 32
VII. FINANCIAL PLAN 33
VIII. OTHER REQUIREMENTS 39
IX. CONCLUSIONS 40
EXHIBIT A
FIGURE 1 - MAP OF DISTRICT No. 1
FIGURE 2 - MAP OF DISTRICT NO. 2
FIGURE 3 - LEGAL DESCRIPTION OF DISTRICT NO. 1
FIGURE 4 - LEGAL DESCRIPTION OF DISTRICT N0. 2
FIGURE 5 - VICINITY MAP
EXHIBIT B
TABLE 1 - SUMMARY OF CAPITAL EXPENSES
TABLE 2 - PRELIMINARY ENGINEERING SURVEY
EXHIBIT C
TABLE 1 - BUILD -OUT SCHEDULE
TABLE 2 - ASSESSED VALUATION
EXHIBIT D
WATER SERVICE AGREEMENT
EXHIBIT E
DEVELOPER FEE AGREEMENT
EXHIBIT F
FINANCING PLAN
EXHIBIT G
DEBT AMORTIZATION SCHEDULE
EXHIBIT H
1997 FINANCIAL STATEMENTS
II
I. INTRODUCTION
A. Summary
The Beebe Draw Farms Metropolitan District
("District"), a special district located in Weld County,
Colorado, was established by order of the District Court entered
on August 20, 1986 recorded in the County records at Reception
No 02065838 on August 20, 1986, following the County's approval
of the District Service Plan on May 14, 1986 and the District
electors' approval at an organizational election held on August
19, 1986, pursuant to the provisions of Article 1 of Title 32,
C.R.S. ("District Act").
The District was organized to provide various services
and facilities, including water, streets, drainage, safety
protection, parks and recreation, television transmission and
relay, transportation, and mosquito control as set forth in the
District Service Plan, to the Beebe Draw Farms and Equestrian
Center ("Development"), which is now planned for approximately
724 single-family residences with a projected population of 1,860
permanent residents as more fully described in the P.U.D. Master
Plan ("Master Plan") recorded in the County records at Reception
No. R-1992773 on December 21, 1984. The Development is six miles
east of Platteville adjoining Milton Reservoir, a Farmers
Reservoir and Irrigation Company ("FRICO") water facility
encompassing 800 surface acres.
Development activity has only recently been commenced
because of previously adverse market conditions and financial
difficulties experienced by the original developer. During the
1
• •
intervening years, the District has been operational and has
taken actions in anticipation of development, including acquiring
real property and other interests in property necessary to
provide services and facilities, entering into agreements with
FRICO for the recreational use of Milton Reservoir, completing
environmental impact studies required by the federal government,
purchasing water and installing a water distribution system in
accordance with an intergovernmental agreement with the Central
Weld County Water District ("Water District"), improving
equestrian and other recreational facilities on Milton Reservoir,
and performing planning and engineering for other District
infrastructure projects, including streets, drainage, and
gatehouse and administration building. The District has also
made arrangements with the County for offsite road improvements,
safety protection services, and coordination of other Development
activities. The District has partially implemented the financing
plan for the initial public facilities authorized under the
District Service Plan by issuing its General Obligation Bonds,
Series 1998 ("1998 Bonds") in the principal amount of $2,000,000.
In general, the District has been administered to fully
implement the District Service Plan at such time as actual
development commences. Ownership of the Development has been
transferred to REI Limited Liability Company ("Company"), a
Wyoming limited liability company doing business in Colorado as
Pelican Lake Ranch and Investors Limited Liability Company. The
Company began marketing lot sales in Filing No. 1 in November
1998. Building activity started on the first homes in the
Development in February 1999, and the first residents should be
living within the District by August 1999.
Following notice to the County, the District commenced
the construction phase of completing District facilities for the
2
•
Development in September 1998, when contracts were awarded for
road and drainage work and water improvements. The initial phase
of District construction activity will provide various central
facilities, including the entrance to the Development
gatehouse, Beebe Draw Farms Parkway, water transmission
distribution mains, and road, drainage and water improvements
and
and
for
the first phase of development in Filing No. 1. To accord with
current market conditions, the Company has changed its
development plan to reflect a more conservative schedule of
build -out within the Development. Rather than financing and
constructing all public facilities and improvements needed for
the Development immediately as anticipated in the District
Service Plan, the District now anticipates completing the
District facilities in phases paralleling actual building
activity, thus providing
with the District.
more efficient and economic services
In order to effect the phased completion of District
facilities in an orderly and predictable manner and to revise the
financial plan under the District Service Plan to be consistent
with current capital needs and market realities, the
institutional structure of the District itself must be modified.
The powers of the District will not, however, be materially
changed. The District submits this Consolidated Service Plan
("Service Plan") pursuant to the District Act to effectuate
material modifications to the District Service Plan, including
the organization of a new overlapping metropolitan district and
changes in the responsibilities of the District for the more
efficient administration of services and facilities needed to
serve the Development. A description of the public improvements
and services to be furnished by the Districts, a preliminary
engineering survey, a consolidated financial plan, a summary of
proposed intergovernmental agreements, and other information
3
required under the District Act are included in this Service
Plan.
The implementation of the financial concepts set forth
in this Service Plan will require significant commitments by the
Company and other developers of the Development. These
commitments have been partially satisfied by the execution of the
Developer Fee and Water Tap Fee Agreement dated as of December 8,
1998 ("Developer Fee Agreement") to raise revenue for the funding
of public facilities and improvements needed within the
Development. The District is, or will be constructing various
central facilities and improvements funded by the 1998 Bonds to
serve all property within the District. Public facilities and
improvements to serve subsequent phases/filings in the
Development will be funded by fees paid by developers pursuant to
the Developer Fee Agreement and other available funds of the
Districts, including without limitation revenue notes or bonds.
This Service Plan demonstrates that the Districts will be capable
of providing economical and sufficient services to the property
within their boundaries.
This Service Plan is submitted in accordance with Part
2 of the District Act. As explained herein, the existing
District will function as the taxing district primarily
responsible for raising revenue to pay the operating, capital,
and debt service expenses of the Districts and will be renamed
"Beebe Draw Farms Metropolitan District No. 1" ("District No.
1"). A new overlapping metropolitan district will also be
organized to function as the service district and will be named
"Beebe Draw Farms Metropolitan District No. 2" ("District No.
2"). District No. 2 will be responsible for administering and
operating both Districts, furnishing all District services,
acquiring and installing all public facilities and improvements
4
• •
needed to serve the Development, and providing intermediate
financing for future District projects, as necessary. Any
reference herein to the "District" shall mean the existing
District, or District No. 1 or District No. 2, if appropriate;
any reference to the "Districts" shall mean both District No. 1
and District No. 2.
The Districts shall have all powers and authorities set
forth in the District Act and in this Service Plan. This Service
Plan defines the respective responsibilities and authorities of,
as well as the limitations and restrictions on, the Districts.
The Districts shall cooperate to implement this Service Plan and
to discharge their responsibilities to furnish services and
facilities needed for the Development. The failure by either
District to perform its responsibilities hereunder shall
constitute a material modification pursuant to Section 32-1-207,
C.R.S., for which the prior approval of the County shall be
required. The use and implementation of a consolidated service
plan will simplify the dual structure of the Districts, provide
for greater coordination of the responsibilities and authorities
of the Districts, and avoid confusion regarding the separate but
coordinated purposes of the Districts, which might arise if
separate service plans were used.
Unless otherwise specified herein, general provisions
of this Service Plan apply to each District. Where appropriate,
specific responsibilities and limitations will be noted for each
District. All exhibits, maps and tables referred to herein are
included at the end of this Service Plan. Any reference to this
Service Plan shall also apply to any amendment, change or
modification of this Service Plan approved in compliance with the
District Act, if required, or by written agreement between the
Districts, or by the County.
5
1. Dual Districts Structure.
District No. 1 will be responsible for levying
property taxes and raising other revenue needed to pay operating
and debt service expenses, to fund capital improvements, and
generally to support the Financing Plan. District No. 2 will be
responsible for administering and operating the Districts,
furnishing all services, acquiring or installing the public
facilities and improvements needed to serve the Development, and
providing intermediate financing for future District projects, if
necessary. The "Financing Plan" discussed throughout this
Service Plan refers to the consolidated financial plan for the
Districts, as more fully described in Section VII, which will be
implemented to provide the public facilities and services needed
for the Development.
Because of the interrelationship between the
Districts, intergovernmental agreements will be executed by the.
Districts clarifying the respective responsibilities and the
specific functions and services to be provided by each District.
The intergovernmental agreements will be designed to assure the
orderly provision of public services and facilities and the
economic administration of the Districts' fiscal affairs,
resulting in a planned residential community which will be an
asset to the County. As a consequence of the integrated
structure of the Districts, the information provided within this
Service Plan often relates to both Districts.
The organization of District No. 2 as the service
district to finance, construct and operate the public facilities
throughout the Development (unless transferred to the County or
another governmental entity), and the re -structuring of District
6
•
No. 1 as the taxing district to raise property taxes and other
revenue required to pay the costs of operations and debt service,
will create several benefits for the Development and for the
County. In general, these benefits are: (i) coordinated
administration of construction and operation of public
improvements and delivery of facilities and services needed for
the Development in a timely manner; (ii) maintenance of uniform
property tax levies and reasonable tax burdens on all property
within the Development through proper management of the financing
and operation of public improvements; and (iii) assurance that
all public improvements are constructed and paid for in a timely
and cost effective manner. Each of these concepts is addressed
in greater detail in the following paragraphs.
The public facilities and improvements to be
financed, acquired, installed and operated by District No. 2, and
the provision of services needed within the Development, will not
duplicate or interfere with the improvements and facilities
already constructed or planned to be constructed within District
No. 1 (or by any other district or governmental agency), if this
Service Plan is implemented in accordance with the terms
described herein. In compliance with the provisions of Section
32-1-107(3), C.R.S., the Board of Directors of District No. 1
hereby acknowledges its consent to the organization of District
No. 2 within the boundaries of the District for the purposes and
in accordance with the terms of this Service Plan.
2. Benefits of Dual District Structure.
a) Coordinated Services. As now planned, build -
out of the Development will proceed in several phases over the
next ten years, each of which will require the extension of
public facilities and services. The dual district structure will
7
•
assure that the construction and operation of each phase of
public facilities will be completed in a manner consistent with
the Company's long-term development plan. The use of District
No. 2 for financing and constructing each new phase of public
improvements needed within the Development and for managing the
public improvements and operations not taken over by the County,
Water District, or another governmental entity will facilitate
the implementation of the Financing Plan, even if timelines
change, and will assist in assuring the coordinated provision of
services throughout the Development.
The dual district structure will also assure
that public facilities and services needed for future build -out
of the Development will be provided when needed and not sooner.
Absent an appropriate mechanism to assure timely completion of
future improvements, the District might cause improvements to be
financed and completed well before needed simply to assure that
the Financing Plan is effected, regardless of economic
consequences. Agreements between the Districts and the Company
or other developers will provide much of the financing for public
improvements which are not needed presently, thereby helping
taxpayers to avoid the long-term carrying costs associated with
financing such improvements too early. This, in turn, allows the
full costs of public improvements to be allocated fairly over the
entire Development and avoids disproportionate cost burdens being
imposed upon the initial phases of the Development.
b) Uniform Property Taxes. Allocation of the
responsibility for paying debt for public improvements will be
addressed in the consolidated Financing Plan and through
development of an integrated operating plan for long-term
operations and maintenance of public improvements within the
Development not transferred to the County, Water District, or
8
another governmental agency. The dual district structure will
help to assure that no area within the Development becomes
obligated for more than its share of the costs of public
improvements and operations. Intergovernmental agreements
between the Districts will assure that property tax levies remain
reasonable and uniform throughout the Development.
c) Bond Interest Rates. The use of the
Districts in tandem to issue future bonds, if necessary, and to
finance the costs of public improvements in the Development will
assure that all debt is issued at competitive interest rates.
The Financing Plan for the Districts anticipates that
intermediate financing of future public improvements will be
secured by the revenue generated from the Developer Fee Agreement
and other revenue available to the Districts. This assures that
the risk of development remains with the Company, until such time
as it has increased the valuation on property within the
Development at the level necessary to pay for the costs of public
facilities with reasonable tax levies. The use of a dual
district structure allows the Districts to coordinate the timing
and issuance of bonds in such a way as to assure that
improvements required by the County are constructed when needed.
The combination of appropriate management and control of the
timing of financing and the ability of the Districts to obtain
attractive interest rates will benefit all property owners within
the Districts. Consequently, the dual district structure is less
risky and may result in lower rates on District bonds than if a
single metropolitan district is used.
3. Configuration of Districts. In order to implement
the dual district structure, the boundaries of the Districts must
be carefully configured. A map showing the current boundaries of
District No. 1 is provided in Figure 1 in Exhibit A. District
9
No. 1 contains approximately 4,120 acres. The boundaries of
District No. 1 include all land within the Development. A map
showing the purposed overlapping boundaries of District No. 2 is
provided in Figure 2 in Exhibit A. District No. 2 will contain
approximately 3,408 acres of platted and unplatted property owned
by the Company and located completely within the boundaries of
District No. 1, excluding that property in the first phase of
development in Filing No. 1 which is now being marketed for sale.
The legal description of the property within the present
boundaries of District No. 1 is provided in Figure 3 in Exhibit
A, and the legal description of the proposed boundaries of
District No. 2 is provided in Figure 4 in Exhibit A. A map
showing the boundaries of the Districts in relation to the
greater vicinity of the County is provided in Figure 5 in Exhibit
A.
The "service area" (the geographic area which may
legally be served) of District No. 2 will consist of the entire
area of the Development, including all property within District
No. l's boundaries. District No. 2 will have the power to impose
property taxes only within its legal boundaries but will be
authorized to provide public services and facilities throughout
the Districts pursuant to this Service Plan and the
intergovernmental agreements between the Districts.
Additional property may be included in the
Districts in accordance with the provisions of the District Act.
Under the District Act, the fee owner or owners of one hundred
percent (100%) of any property proposed for inclusion may
petition the Board of Directors of either District for the
inclusion of property into the District. Further, less than all
of the owners of an area may petition the District for inclusion,
or the Board may adopt a resolution calling for an election on
10
• S
inclusion of the property within such area. A substantially
similar process is applicable to the exclusion of property from a
special district. In accordance with the procedures set forth in
the District Act, property within each new phase of the
Development will be excluded from District No. 2, when such
property has been platted, and lot sales have been commenced by
the Company or other developers. The Board of Directors of the
Districts will have complete discretion to approve inclusions or
exclusions without processing an amendment of this Service Plan.
4. Long -Term District Plan. After all public
improvements have been constructed, and all bonds or other debt
of the Districts have been paid or payment has been provided for,
the electorate of the Districts will have the opportunity to vote
upon the consolidation of the Districts into a single
consolidated District. At some time, it may be appropriate to
consider the dissolution of District No. 2. Ultimately, control
of these decisions will rest with the electorate in each
District. Neither District may be dissolved, however, without
prior notification to the County and compliance with all
provisions of the District Act.
5. Existing Services and Districts. Other than the
Districts, there are currently no other governmental agencies
operating within the Development area which have the legal or
financial ability to undertake the design, financing and
construction of the public improvements needed to serve the
Development. The County and other special districts in the
Development area, including the LaSalle Fire District ("Fire
District"), do not consider it financially feasible or
practicable to provide the public facilities and improvements
needed for the Development. Consequently, the organization of
the Districts is necessary for the provision of public
11
improvements and services in the Development and for the
development of the property itself. The re -structuring of
District No. 1 and the organization of District No. 2 will have
no legal effect upon, or change the rights, liabilities, or
obligations of District No. 1 under the terms of existing
agreements, including the Agreement for Water Service, dated June
27, 1995 ("Water Service Agreement") with the Water District.
Water service will be provided to the Development in accordance
with the terms of the Water Service Agreement. The District may
enter into intergovernmental agreements with the Fire District.
In order to minimize the proliferation of
governmental activities, District No. 2 will operate and maintain
the public facilities and improvements within the Development in
accordance with intergovernmental agreements with District No. 1.
Operations and maintenance of some public improvements, including
water, street and traffic safety, will be the responsibility of
the County or Water District after the completed improvements
have been transferred to such agencies. The timing and
conditions for transfer of such improvements will be established
by the County and Water District.
B. General Information and Assumptions
The projected resident population of the Districts at
build -out of the Development is 1,860 persons. The projected
total valuation of all taxable property within District No. 1 at
build -out of the Development is approximately $181,000,000 with
an assessed valuation of approximately $20,000,000. The 1999
assessed valuation of all taxable property within the boundaries
of District No. 1 is $6,755,200. No resident population is
anticipated within District No. 2. The initial assessed
valuation of the taxable property within District No. 2 is
12
estimated to be approximately $16,000. As development occurs
within District No. 2, improved property will be excluded from
the District, and the total assessed valuation of property within
the District will decrease.
The anticipated costs of public improvements needed to
serve the Development are substantial and are estimated in Table
1 in Exhibit B. Funding for capital costs will be provided from
developer fees, water connection fees, and other available
revenue of the Districts. The Districts may obtain financing for
the public improvements, if necessary, through the issuance of
general or limited tax obligation bonds or other debt instruments
of District No. 1, including the issuance of notes or tax pledges
to District No. 2 pursuant to the intergovernmental agreements
between the Districts, or from revenue bonds, anticipation notes,
or other instruments issued by the Districts and secured by
revenues generated under the Developer Fee Agreement. District
No. 2 may enter into funding agreements with the Company or other
developers to fund the costs of public improvements needed for
subsequent phases of the Development.
The revenue forecasts set forth in the Financing Plan
were based upon various development assumptions made by the
Company. For purposes of this Service Plan, a reasonable growth
scenario has been used to develop the Financing Plan. The
Financing Plan is predicated upon a cash funding scenario which
may be used by the Districts to finance the costs of public
improvements needed for subsequent phases of the Development. At
the time public improvements are actually needed, alternative
financing plans may be more beneficial and may be implemented by
the Districts, as appropriate. Use of an alternative financing
plan will not require an amendment of the Service Plan but shall
be subject to the other requirements set forth in Section VIII.
13
• •
With the financial support provided by the Company and
other developers through the payment of developer fees, the
Financing Plan demonstrates that the costs of public improvements
needed for subsequent phases of the Development can be financed
economically with reasonable property tax levies not exceeding 40
mills. The projections and estimates set forth herein relating
to the costs of public facilities and operations will not
constitute limitations on the financial powers of the Districts;
provided, however, that the Districts shall not be permitted to
issue bonds which are not in compliance with State law and the
provisions of this Service Plan, including without limitation
Section VIII.
The Financing Plan demonstrates that the risks
associated with the construction of public improvements needed
within subsequent phases of the Development will be borne
initially by the Company and other developers through payment of
the developer fees. The responsibility for payment of a portion
of the costs of public facilities will be shifted incrementally
to all property within District No. 1 as development occurs, and
the total assessed valuation of property within the District
increases. The County will have no responsibility for any debt
of the Districts.
Additionally, the County can be assured that there are
legal and financial controls on District indebtedness, which
operate to limit the taxes that property owners within the
Development will be expected to pay. Under the District Act, a
district cannot incur general obligation indebtedness payable
from property tax revenues in excess of fifty percent (50%) of
its valuation for assessment, unless such indebtedness is rated
or insured, or unless the mill levy from which it is payable is
14
limited. The maximum tax levy of the Districts for operations
and debt service is projected to be 40 mills. In addition, State
securities laws do not allow exemption from registration for
district indebtedness not meeting minimum requirements. Finally,
the current public market for municipal securities is extremely
cautious with respect to district general obligation indebtedness
and demands relatively low debt -to -valuation ratios. It should
be noted that any general obligation indebtedness, including the
1998 Bonds, is secured by a tax levy without limit as to rate or
amount, which must be sufficient, together with other available
revenues, to pay debt service. The outstanding principal amount
of the 1998 Bonds is $2,000,000.
C. Contents of Service Plan
This Service Plan consists of a Financing Plan and
preliminary engineering survey showing how the public facilities
and services for the Development can be provided and financed by
the Districts working in tandem. The Financing Plan revises,
modifies and replaces the original financing plan set forth in
the District Service Plan. Other information is included in this
Service Plan in compliance with the requirements of Part 2 of the
District Act.
derived
present
current
The assumptions contained within this Service Plan were
from a variety of sources. Information regarding the
status of property within the Districts, as well as the
schedule of development, was obtained from the Company.
Construction cost estimates for most public facilities were
developed by Milestone Engineering or J.L. Walter Consulting
Engineering for water improvements. Legal consultation,
including drafting of this Service Plan, has been provided by the
law firm of Collins and Cockrel, P.C. Financial recommendations
15
and advice relating to the issuance of the 1998 Bonds were
provided by Bigelow and Company and James Capital Advisors, Inc.
The District auditor is Van Schooneveld and Co., Inc.
D. Modification of Service Plan
This Service Plan has been drafted with sufficient
flexibility to enable the Districts to provide the public
services and facilities currently anticipated for the Development
under evolving circumstances without the need for numerous
amendments in the future. While the assumptions upon which this
Service Plan are generally based are reflective of the Master
Plan for the Development, the cost estimates and Financing Plan
are sufficiently flexible to enable the Districts to provide
necessary services and facilities without the need to amend this
Service Plan as actual development occurs, whether or not the
Master Plan itself changes. Modification of the general types of
services and facilities, and changes in proposed configurations,
locations, quantities, dimensions, or costs of various facilities
and improvements, shall be permitted to accommodate actual
development needs consistent with the Master Plan, without
further amendment of this Service Plan.
II. NEED FOR NEW DISTRICT AND GENERAL POWERS
A. Need for New District
District No. 2 will be organized to assure that public
facilities and improvements needed to serve subsequent phases of
the Development will be financed and installed in a timely,
efficient, and economical manner as development occurs. District
No. 1 will continue to be responsible for financing the various
central facilities needed to serve the entire Development and for
16
funding operations and outstanding debt service. Installation,
operations and maintenance of water, drainage, streets, safety
protection, landscaping, transportation, cable television, and
park and recreation improvements will initially be provided by
the Districts, some of which will then be transferred to the
County or Water District in accordance with the intergovernmental
agreements referred to in Section V.
B. General Powers of Districts
The Districts will have all powers and authorities
granted under the District Act to provide the services and
facilities described in this Service Plan both within and outside
District boundaries. The powers and authorities of the Districts
will be allocated and further refined in intergovernmental
agreements between the Districts, a general summary of which is
set forth in Section V. For purposes of the District Act, the
making or amendment of the intergovernmental agreements shall not
constitute a material modification of this Service Plan. They
will, however, be binding and enforceable agreements between the
Districts regarding implementation of the authorities set forth
in this Service Plan.
The Districts shall have authority to provide the
following services and facilities, all of which shall be in
conformance with the standards and specifications of the County
or Water District, if applicable:
1. Streets and Drainage. The design, acquisition,
installation, construction, operation, and maintenance of
arterial, collector and access streets and other roadway
improvements within and outside District boundaries, including
without limitation curbs and gutters (if needed), culverts, storm
17
• •
sewers and other drainage facilities, detention ponds, retaining
walls and appurtenances, as well as bridges, parking facilities,
paving, lighting, grading, landscaping, undergrounding of public
utilities, gatehouses, entrance buildings, and other street
improvements, together with all necessary, incidental, and
appurtenant facilities, land and easements, and all necessary
extensions of and improvements to such facilities.
2. Traffic and Safety Controls. The design,
acquisition, installation, construction,
maintenance of traffic and safety protection
operation,
facilities
services through traffic and safety controls and devices
and
and
on
streets and roadways, as well as other facilities and
improvements, including without limitation signalization at
intersections, traffic signs, area identification signs,
directional assistance, driver information signs, and contractual
arrangements with the County Sheriff or Fire District for safety
protection and other incidental purposes, together with all
necessary, incidental, and appurtenant facilities, land and
easements, and all necessary extensions of and improvements to
such facilities.
3. Parks and Recreation. The design, acquisition,
installation, construction, operation and maintenance of public
park and recreation facilities or programs, including without
limitation grading, soil preparation, sprinkler systems,
playgrounds, playfields, golf courses, tennis courts, swimming
pools, bike, hiking and nature trails, nature corridors,
pedestrian and equestrian trails, bridges, picnic areas, lakes,
marinas, open space, landscaping and weed control, outdoor
lighting of all types, recreation and equestrian facilities,
community buildings, and other recreational facilities, together
with all necessary, incidental and appurtenant facilities, land
18
and easements, and all necessary extensions of and improvements
to such facilities or systems.
4. Water. The design, acquisition, installation,
construction, operation and maintenance of water lines, hydrants,
water treatment, storage and distribution facilities, storage
reservoirs, water rights, and all necessary or proper equipment
and appurtenances incident thereto, together with all necessary,
incidental and appurtenant facilities, land and easements, and
all necessary extensions of and improvements to such facilities
or system.
5. Miscellaneous Authorities. The design,
acquisition, installation, construction, operation and
maintenance of: (i) transportation systems by bus, rail, or any
other means, including without limitation services and facilities
authorized under the District Act; (ii)
services and facilities
for the elimination and control of mosquitoes; and (iii)
television relay and translator systems and other electronic or
cable facilities.
6. Other Services. The Districts may provide other
services and facilities authorized under the District Act or by
law, without limitation, if needed to serve the Development and
not otherwise provided by the County or another governmental
agency within the area.
7. Legal Powers. The powers of the Districts to
provide the services and facilities contemplated in this Service
Plan will be exercised by the Board of Directors of each District
as applicable. The authorized facilities and services, along
with all other activities permitted by law, will be undertaken in
accordance with, and pursuant to the procedures and conditions
19
contained in the District Act, other applicable statutes, and
this Service Plan.
8. Other. In addition to the powers and authorities
enumerated herein, the Board of Directors of each District shall
also have the following powers:
a) To amend this Service Plan as necessary,
subject to compliance with all statutory procedures set forth in
the District Act, including by providing written notice to the
County pursuant to Section 32-1-207, C.R.S., of actions which
either District believes is permitted by this Service Plan but
which may be unclear. In the event that the County determines
not to enjoin any such activity, such determination shall
constitute agreement by the County that such activity is within
the scope of this Service Plan. Each District shall have the
right to amend this Service Plan independent of any participation
by the other District; provided, however, that neither District
shall be permitted to amend those portions of this Service Plan
which materially affect, impair, or impinge upon the rights or
powers of the other District without the other District's
consent; and
b) Subject to all provisions of the
intergovernmental agreements between the Districts, to revise,
reschedule, or restructure the financing and construction of
various public improvements and facilities in order to
accommodate the rate of growth within the Development, costs of
public improvements, and inclusion of property into the
Districts, or the provision of any public improvement and
facility by another entity; and
20
• •
c) To provide all additional services and
facilities and exercise all powers as are expressly or impliedly
granted by the District Act or other State law, and which the
Districts are required to provide or exercise or, in their
discretion, choose to provide or exercise; and
d) To exercise all necessary and implied powers
under the District Act.
III. DESCRIPTION OF FACILITIES AND IMPROVEMENTS
District No. 1 has previously financed, acquired, and
installed, or is currently constructing the central facilities
and improvements needed to serve the initial phase of the
Development, including the Beebe Draw Parkway, other streets and
drainage facilities, entrance and gatehouse, traffic and safety
controls, signage, offsite water transmission main, water
distribution lines, water rights, community building, hiking and
equestrian trails, marina and related water and recreation
facilities. District No. 2 will exercise its statutory powers
and the authority set forth in this Service Plan to finance,
acquire, construct, install, operate and maintain the other
public facilities and improvements needed to serve subsequent
phases of the Development as described in this Service Plan,
either directly, by contract, or by acquisition from the Company
or other persons. District No. 2 will complete the public
facilities which are to be transferred to and operated by the
County and Water District. Where appropriate, the Districts will
contract with various public and/or private entities to undertake
such functions and activities, including without limitation the
Water Service Agreement; subdivision improvement, law enforcement
and other intergovernmental agreements with the County; and
21
acquisition and reimbursement agreements with the Company or
other developers, if necessary.
General information for each type of public improvement
needed for the Development is set forth in the following pages.
It is important to note that the engineering information
contained in this Service Plan is preliminary in nature, and that
modifications to the type, configuration, and location of public
improvements may be necessary as development progresses. All
public facilities and improvements within the Development will be
designed and installed in such manner as to assure that the
facility and service standards will be compatible with those of
all affected governmental agencies and utility providers,
particularly the County and Water District. For example, County
road design and construction standards have been followed in
designing all District street and drainage projects, and water
transmission and distribution mains have been designed and
constructed in accordance with the Water District's regulations.
There follows a general description of the public facilities
and improvements which will be financed and constructed by the
Districts.
A. General
Construction of all public facilities and improvements
will be engineered and scheduled to allow for proper sizing and
phasing consistent with the need for service within each phase of
the Development. All descriptions of specific facilities and
improvements to be constructed and their related costs are
estimates only and are subject to modification as actual
engineering design, development plans, market conditions,
22
governmental requirements, and construction scheduling may
require.
B. General Design Standards
All public facilities and improvements within the
Development will be designed, installed, and operated by District
No. 2 in conformance with current codes, standards, and
regulations adopted by the County, Water District, Fire District,
or District itself. Design and contract documents prepared for
improvements will be approved by District No. 2 and will be
implemented in accordance with all codes, regulations, standards,
specifications, and procedures of each applicable governmental
agency. If design standards become more stringent, the developer
fee may be increased to pay for the additional capital costs of
District facilities.
1. Street System and Traffic Safety.
a) General. The Districts will construct the
arterial and collector streets and roadway system needed to serve
the Development. The existing and proposed elements of the
street system will provide a network of arterial and collector
streets and roadways to accommodate anticipated traffic within
and surrounding the Development interconnecting with existing
County roads in the area. The improvement of offsite County
roads within the area, as may be required by the County to
provide adequate traffic circulation to the Development, will be
completed in accordance with intergovernmental agreements with
the County. All streets, regardless of classification, and
related facilities will be designed and installed in accordance
with current County standards and specifications.
23
b) Streets. Public streets will be designed and
installed to conform to the standards and recommendations of the
American Association of State Highway and Transportation
Officials, the Colorado Department of Highways (if applicable),
County standards and specifications, and any rules and
regulations adopted by the Districts. The rights -of -way for and
the widths of streets within the Development shall be as set
forth in the Master Plan and in the subdivision plats for the
individual filings of the Development as approved by the County.
c) Landscaping. Landscaping may be installed by
the Districts along portions of the arterial and collector road
rights -of -way. The Districts may install and maintain landscaped
highlights within the Development, including entry features at
major entrances. Additional landscaping features may be
installed and maintained by District No. 2.
d) Signals and Signage. Traffic controls and
signage will be provided along streets to enhance the flow of
traffic within the Development. Streetlights may be installed by
the Districts at the intersections of arterial and collector
streets or County roads. All improvements will be installed by
the Districts as required by County regulations.
2. Storm Drainage.
Generally. The Districts will install the
necessary storm drainage systems to serve the Development in
accordance with County development regulations. The storm
drainage system includes ponds, culverts, and curb and gutter (if
necessary) designed and installed in accordance with County
standards and sound engineering judgment. The Districts will
design and install storm drainage improvements within the
24
Development, except for site improvements for individual
development parcels, which will be the responsibility of the
Company or other developers. All major storm drainage facilities
will be designed to conform to the standards and recommendations
for drainage improvements using County design criteria and if
applicable, regulations of FRICO.
a) Culverts. Culverts, including box culverts,
will be installed under all roadways that intersect storm
drainage channels in accordance with County regulations.
Culverts will be designed to pass flows as required and may
include headwalls, wing walls, inlet structures, and riprap
protection to enhance hydraulic capacity and reduce bank or
channel erosion.
b) Drainage Plan. A drainage plan will be
prepared that will identify all facilities necessary to convey
storm runoff from the Development. This plan will include all
infrastructure required to convey storm water flows generated
within the Development. This plan will maintain the flexibility
to modify drainage facilities as more detailed information is
generated during the design of the individual phases of the
Development. The drainage plan may include the utilization of
storm sewers, drainage channels, ponds, streets, and culverts.
3. Water System. The water system within the
Development is interconnected to and part of the water
transmission and distribution system of the Water District and
will be operated and maintained by the Water District in
accordance with the Water Service Agreement. Water lines and
hydrants will be designed and installed to conform with the
current standards and specifications of the Water District and
then transferred to the Water District for future operation and
25
maintenance. The water system required for the Development will
be installed by District No. 2.
4. Transit System. There is no specific
transportation plan for the Development currently, but the
Districts are authorized to furnish transportation services and
facilities, if subsequently needed and financially feasible.
5. Park and Recreation. The Districts will acquire,
construct, develop, maintain, and operate parks and recreational
facilities, including hiking and equestrian trails, open space,
nature corridors, various aquatic facilities including a marina
on Milton Lake and improvements to Lake Christina, clubhouse,
swimming pool, and tennis courts, during build -out of the
Development. Major equestrian facilities are not currently
planned but may be provided by the Districts, if subsequently
needed and financially feasible, or may be provided through a
contract service provider. If there is sufficient public demand
in the future and available land and if it is economically
feasible, the Districts may, perhaps in cooperation with other
governmental agencies, develop a public golf course and related
facilities, subject to compliance with County site approval
requirements. Great Outdoors Colorado and Conservation Trust
Fund revenues could be applied for such purposes.
All park and recreational facilities and/or
services will be constructed in accordance with plans and
specifications established by District No. 2. All park and
recreational facilities will be constructed in accordance with
engineering and design requirements appropriate for the facility
and shall comply with County building codes, uniform fire codes,
and the standards of other governmental agencies, if applicable.
26
C. Estimated Costs of Facilities
The estimated costs of the public facilities and
improvements to be constructed, installed and/or acquired by the
Districts within the Development are $20,596,084 as shown in
Table 1 in Exhibit B. The estimated costs of other public
infrastructure to be constructed, installed, and/or acquired by
the Districts to serve the Development are not known at this
time. The engineering analysis and estimates of public
infrastructure costs for the Development constitute the
preliminary engineering survey of the District facilities and
improvements and may be modified, changed and revised as
necessary to provide the public infrastructure needed for the
Development without any amendment of this Service Plan.
IV. DEVELOPMENT PROJECTIONS
The Company has projected the various phases and build -out
of the Development based upon present market conditions. The
build -out schedule is set forth in Exhibit C.
V. PROPOSED AND EXISTING AGREEMENTS
A. District Intergovernmental Agreements
As noted in this Service Plan, the relationship between
District No. 1 and District No. 2, including the terms for
financing, constructing, and operating the public services and
improvements needed to serve the Development, will be established
in one or more intergovernmental agreements. A copy of each
intergovernmental agreement between the Districts shall be
provided to the County within thirty (30) days after execution.
The intergovernmental agreements will provide comprehensive
27
• •
procedures and requirements for the payment of: (i) the capital
costs of the public improvements, including payments to the Water
District and other governmental agencies; (ii) administrative,
operational and maintenance expenses of the Districts; (iii)
costs of issuance of District bonds, debt service, and related
financing expenses of the Districts, and (iv) for the
construction, acquisition, operation and maintenance of all
facilities and services needed for the Development and the
administration of District affairs by District No. 2.
District No. 2 will be responsible under the
intergovernmental agreements for contracting for and supervising
the acquisition and construction of all public facilities and
improvements needed for all subsequent phases of the Development,
including the preparation
and public bidding and
completion of the public
of engineering plans and specifications
contracting with contractors. Upon
improvements, District No. 2 shall be
responsible for their operation and maintenance, until such time
as any improvement is transferred to the County, Water District,
or another governmental agency. District No. 2 shall be
responsible for management, record -keeping, and financial
planning services for the Districts, as well as operating or
contracting for the operation and maintenance of the public
improvements.
In addition to payments for financing a portion of the
public improvements within the Development, District No. 1 shall
pay District No. 2 for operating and maintaining the improvements
and administering the affairs of the Districts and any major
repairs or replacements of the improvements ("service costs").
District No. 1 will pay the service costs in accordance with the
terms of the intergovernmental agreements.
28
B. Water Service Agreement
The District entered into
Agreement with the Water District on
the prior agreement dated October 30,
the current Water Service
June 27, 1995, terminating
1985. A copy of the Water
Service Agreement is included in Exhibit D. The Development has
now been fully included within the service area of the Water
District, Northern Colorado Water Conservancy District ("Northern
District"), and Municipal Subdistrict. Consequently, the
District has acquired, and will continue to acquire interests in
Northern District water (including Colorado -Big Thompson Project
water) at market prices. After acquisition, the water interests
are transferred to the Water District
water supply for the Development.
reliable and economic long-term water
all property within the Development.
to be used as the permanent
This
arrangement secures
a
supply for the District and
In accordance with the terms of the Water Service
Agreement, the District is required, at its expense, to install
the water transmission and distribution system and all
appurtenant facilities necessary to serve the Development. The
water system improvements must meet the Water District's
technical standards. After completion, the water system
improvements are transferred to the Water District for operation
and maintenance. The Water District operates the water
distribution system within the District in accordance with its
general standards, providing services and charging customers
directly for such services. The Districts may also assess fees
and charges to users to recover capital costs incurred to furnish
water to the Development.
29
C. County Intergovernmental Agreement
The Districts may enter into intergovernmental
agreements with the County with respect to the installation,
operation and dedication of streets, drainage, offsite road
improvements, safety and other facilities, and service
arrangements for the Development, including the County Sheriff or
Beebe Draw Law Enforcement Authority ("LEA"), if appropriate. In
accordance with the terms of the Law Enforcement Agreement dated
December 17, 1998, the County and County Sheriff have contracted
to perform certain law enforcement protection services within the
LEA boundaries funded by a seven (7) mill tax levy. If
permissible, the Districts may in the future contract with the
LEA to fund additional levels of law enforcement services
necessary for the operation and protection of the facilities of
the Districts. The Districts will comply with all County codes,
regulations, standards, and specifications applicable to the
public facilities and improvements to be installed by the
Districts.
D. Developer Fee Agreement
The District entered into the Developer Fee Agreement
with the Company on December 8, 1998. A copy of the Developer
Fee Agreement is included in Exhibit E. The Developer Fee
Agreement is the primary source of funding for capital facilities
and improvements needed to serve subsequent phases of the
Development. Under the Developer Fee Agreement, the Company and
other developers are obligated to pay a developer fee in the
amount of $15,500 per lot on or before the date of transfer
and/or sale of each lot. There is a schedule for payment of
developer fees in the first phase of the First Filing of the
Development. The District may increase the amount of the
30
developer fee as necessary to fund the costs of the capital
improvements needed for subsequent phases of the Development,
including additional costs caused by more stringent County design
standards. Until the developer fee is paid, the developer fee
constitutes an unconditional obligation of, and lien upon each
lot within the Development.
E. FRICO Agreement
The District entered into the First Amendment to
Grazing and Recreation Lease ("FRICO Agreement") with FRICO on
January 1, 1989, amending the Grazing and Recreation Lease dated
March 4, 1987 with Beebe Draw Land Company, Ltd. The District
has effectively assumed all rights and liabilities under the
FRICO Agreement to manage recreational use on Milton Reservoir
for District residents and guests. There are certain limitations
upon the type of recreational uses (e.g., motorized boating not
greater than ten horsepower and restrictions upon water skiing),
but most aquatic recreation is authorized. The District pays
FRICO an annual rental fee through the term of the lease
(December 31, 2016). A hunting sublease has also been entered
into for the same term, which reduces the annual lease rental
expense to approximately $3,000.
F. Other Agreements/Authority
To the extent practicable, the Districts may enter into
additional intergovernmental and private agreements to ensure the
long-term provision of the public improvements and services
needed for the Development and for effective management of
District affairs, including without limitation the Fire District.
Agreements may also be executed with the Company, other
31
• •
developers, property owner associations, and other service
providers.
VI. OPERATION AND ADMINISTRATION COSTS
Initial costs of operations and general administration of
the Districts are set forth in Table No. 1 below; these costs
have been estimated based in part upon actual District
expenditures for prior fiscal years and are presented in the
Financing Plan set forth in Exhibit F. A copy of the most recent
audited financial statements of the District for the period
ending December 31, 1997 is included in Exhibit H for
informational purposes. Increased costs of operations and
administration, including supplemental snowplowing and employee
expenses, will be funded by user fees, other operational fees,
and general revenue sources available for such purposes, as
determined by the Board of Directors during the annual budgeting
process. The District will not be responsible for maintenance
costs associated with public roads or the water system. The
Financing Plan demonstrates that anticipated cash reserves will
be sufficient to fund costs of major repairs or replacement of
District facilities. Bonds could also be issued to fund such
capital costs.
TABLE NO. 1
INITIAL OPERATIONS AND ADMINISTRATION COSTS
Administration
Audit
Director fees
Insurance
Lake lease (net)
32
$ 4,500
4,000
800
3,800
3,000
Legal
Operations and maintenance
Utilities
Emergency Reserves
Total
VII. FINANCIAL PLAN
8,000
23,000
1,400
1,500
$ 50,000
The consolidated Financing Plan is set forth in Exhibit F
and shows how the proposed public services and facilities may be
economically financed and operated by the Districts. The
Financing Plan includes projected revenues derived from ad
valorem property taxes collected within District No. 1 and the
Developer Fee Agreement, together with other revenue annually
through 2007 and then for the ten-year period through 2018. The
intergovernmental agreements between the Districts will provide
that the obligation of District No. 1 to pay District No. 2 for
the costs of financing the public improvements needed for the
Development and for operating expenses incurred for the provision
of services within the Development will constitute voter -approved
financial obligations of District No. 1. Accordingly, property
tax levies certified to make necessary payments to District No. 2
may be characterized as financial obligations exempt from
spending limits under Article X, Section 20 of the Colorado
Constitution ("TABOR"). District No. 2 may issue revenue or bond
anticipation notes to fund the costs of the public improvements,
until such time as it is able to collect revenues from District
No. 1 or pursuant to the Developer Fee Agreement. Any funds
advanced by the Company or other developers will be reimbursed
from available revenue sources.
33
• •
The Financing Plan includes debt repayment for the
outstanding 1998 Bonds (maturing in 2018 with a net effective
interest rate of 6.78%) and shows how the financial operations of
the Districts will be integrated. The Debt Amortization Schedule
is included in Exhibit G. District No. 2 may issue revenue
anticipation notes or bonds secured primarily by the revenues
generated under the Developer Fee Agreement and property taxes
collected by District No. 1. District No. 1 may issue notes or
pledges to District No. 2 secured by property tax levies to fund
the acquisition and installation of other major facilities needed
to serve the Development. District No. 1 may pledge or assign
its right to receive the revenue generated under the Developer
Fee Agreement, in whole or part, to District No. 2 to secure its
revenue bonds. Revenue from such sources and other available
funds will be used to retire the District bonds and other debts.
Pursuant to electoral approvals given at public elections
held on November 4, 1993 and November 5, 1996, District No. 1 is
presently authorized to issue additional general obligation
indebtedness in the principal amount of $2,650,000 ("Authorized
Debt") for the following purposes: (i) water ($925,000); (ii)
streets and drainage ($975,000); and (iii) park and recreation
($750,000). District No. 1 may issue the Authorized Debt for any
authorized purpose as may be necessaryto complete the capital
facilities and improvements needed to serve the Development;
provided, however, that no Authorized Debt shall be issued after
twenty (20) years following the date of the public election. No
provision of this Service Plan shall be construed to restrict the
issuance by either District of limited tax obligation bonds with
a tax levy of 50 mills or less, revenue bonds or notes, or other
obligations which do not constitute a general obligation debt of
the Districts, except for the Authorized Debt. The Financing
Plan illustrates that adequate revenue will be available from
34
various sources for the payment of debt issued to provide public
infrastructure for the Development, thus reducing the risk of
excessive property tax levies.
Other financing plans may be implemented, if subsequently
determined by the Board of Directors of the District to be in the
best interests of. the Districts. The Districts shall, without
limiting other financing alternatives, be entitled to modify the
structure of the Financing Plan by causing District No. 2 to
obtain financing directly from the Company, other developers,
financial institutions, or accredited investors; provided,
however, that any such borrowing shall comply with the
requirements of State law. For example, District No. 2 shall be
entitled to obtain funding directly from the Company or other
developers and agree to repay and reimburse such entities from
revenues generated under the Developer Fee Agreement or from
other available funds of the Districts. The Districts
be entitled to issue contingent repayment obligations
which exceed the Authorized Debt on condition that the
shall also
in amounts
provisions
of such contingent repayment obligations are in compliance with
State law and are subject to all legal limitations for issuance
of general obligation debt.
authority to utilize excess
which may be developed within
The Districts shall have the
property valuation/debt capacity
the Districts, if the projections
incorporated into the Financing Plan are more conservative than
actually realized within the Development.
All projections in the Financing Plan are stated in 1999
dollars adjusted for inflation (3.5% per annum), as applicable.
Upon approval of this Service Plan, the Districts will continue
to develop and refine the cost estimates for the public
improvements contained herein and prepare for financing such
improvements. All cost estimates will be inflated to current
35
dollars at the time of actual financing and construction. All
construction cost estimates assume construction in compliance
with local, state or federal requirements.
The total estimated costs of all public facilities and
improvements and related financing and organizational costs are
$25,460,704 (in 1999 dollars), as more completely set forth in
Figure 1 in Exhibit C. The Districts shall have the authority to
issue (or incur) general or limited tax obligation indebtedness,
revenue debt, and other debt obligations in amounts sufficient to
finance and construct the public facilities and improvements
authorized under this
estimated costs, without
for any modification of
also be permitted to
electorates in excess of
Service Plan, if greater than such
the need to seek approval of the County
this Service Plan. The Districts
seek debt authorization from
shall
their
this amount to account for contingencies
or other unforeseeable costs. Reasonable modifications of all
facilities and cost estimates shall likewise be permitted. Final
determination of the amount of debt for which approval will be
sought from the Districts' electorates will be made, from time to
time, by the Board of Directors of each District based on then
current estimates of construction costs, issuance costs, and
contingencies. Authorization to issue bonds and enter into the
various agreements described herein will be sought from each
District's electorate pursuant to the terms of the
intergovernmental agreements between the Districts, District Act,
and Colorado Constitution.
In addition to ad valorem property taxes and developer fees,
which may be increased to fund the costs of capital improvements,
the Districts may also rely upon various other revenue sources
authorized by law in order to offset anticipated or increased
expenses of construction, operations and maintenance. These
36
include the power to assess fees, charges, rates, tolls, or
penalties as provided in the District Act. The Districts will
receive restricted revenue from Great Outdoors Colorado and the
Colorado State Lottery into the Conservation Trust Fund to
support recreational programs and facilities, including facility
repair and replacement reserves. Projections in the Financing
Plan are based upon average State distributions to districts
during the 1998 fiscal year. The Financing Plan has been
developed without reliance upon all possible sources of revenue
available to the Districts, but this does not preclude the
Districts from implementing any revenue source legally available
to the Districts.
The Financing Plan does not project any significant
accumulation of fund balances which might represent receipt of
revenues in excess of expenditures under TABOR. It is
anticipated that certain operations of the Districts may, under
some circumstances, qualify as "enterprises" under TABOR. If
District operations do not qualify as enterprises under TABOR,
revenues from all sources which exceed the permitted level of
expenditures in a given year will be refunded to taxpayers,
unless a vote approving the retention or "de-Brucing" of such
revenues is obtained. District No. 1 has already accomplished
such "de-Brucing", and District No. 2 will do the same at its
organizational election, so that fluctuations in revenues from
year to year do not create a TABOR refund problem. To the extent
annual District revenues exceed expenditures without prior voter
authorization, the District will comply with the provisions of
TABOR and either refund the excess or obtain voter approval to
retain such amounts. In the discretion of the Districts, the
Districts may set up enterprises or other qualifying entities to
manage, fund, construct and operate facilities, services, and
programs. To the extent allowed by law, any entity created by
37
the Districts will remain under the control of its Board of
Directors.
The estimated costs of the public facilities and
improvements to be constructed and installed by the Districts,
including the costs of acquisition of land, engineering, legal,
administrative services, initial proposed indebtedness, and other
major expenses related to such facilities and improvements, are
set forth in the Financing Plan. For full build -out of the
Development, capital costs are not expected to exceed
$20,596,084. The Financing Plan for District improvements is
based upon developer fee revenue generated by build -out of the
Development. If build -out does not occur as anticipated (the
absorption estimates in the Service Plan are considered to be
conservative), then District improvements will be deferred or
phased to coincide with actual development, and unnecessary
capital expenditures will be avoided. This Financing Plan is
more practicable and financially feasible than the financial plan
in the District Service Plan, because construction phasing is
tied to build -out of the Development, and large principal amounts
of general obligation debt will not be incurred to finance the
District improvements, eliminating the risk of unlimited tax
levies. Organizational costs of District No. 2 are estimated to
be approximately $35,000.
The maximum principal amount of Authorized Debt will not
exceed $2,650,000, and the maximum interest rate of Authorized
Debt will not exceed ten percent (10%). The proposed maximum
underwriting discount will not exceed three percent (3%). It is
estimated that the Authorized Debt, if issued, will mature not
more than twenty (20) years from date of issuance, with the first
maturity being not later than three (3) years from the date of
issuance pursuant to the District Act.
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The assessed valuation of all improved property within the
Development is projected to increase to approximately $18,000,000
at build -out. The assessed valuation of all taxable property
within the Development is projected to increase from the present
level of $6,755,200 (1999) to over $20,000,000 at build -out. The
projected assessed valuation of property within the Development
was based upon present property tax information provided by the
County Assessor and present State tax law. The maximum property
tax levy of District No. 1 is not expected to exceed 40 mills.
District No. 2 is not expected to have a separate property tax
levy.
The Financing Plan clearly demonstrates that, at the various
projected levels of development, the Districts will have the
ability to finance and pay for the public improvements and
services needed for the Development and will be capable of
discharging all existing and proposed debt of the Districts on a
reasonable basis with reasonable property tax levies. No funds
or assets of the County shall be pledged as security for the
repayment of debt issued by the Districts.
VIII. OTHER REQUIREMENTS
The Districts shall be subject to the following additional
requirements:
1. Unless subsequently requested by written
notice from the County, the Districts shall not be required to
file annual reports as described in Section 32-1-207(3), C.R.S.
2. Material modifications of this Service Plan,
except as contemplated herein, shall be subject to approval by
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the County in accordance with the provisions of Section 32-1-207,
C.R.S.
IX. CONCLUSIONS
It is submitted that this Service Plan establishes, as
required by the District Act, that:
a) There is sufficient existing and
projected need for organized service in the area to be served by
the Districts;
b) The existing service in the area to be
served by the Districts is inadequate for present and projected
needs;
c) The Districts are capable of providing
economical and sufficient service to the area within its
boundaries (and within the service area); and
d) The area included in the Districts (and
within its service area) does have, and will have, the financial
ability to discharge the proposed indebtedness on a reasonable
basis.
Therefore, it is requested that the Board of County
Commissioners of Weld County, Colorado, who have jurisdiction to
approve this Service Plan pursuant to Section 32-1-203, C.R.S.,
adopt a resolution that approves this consolidated Service Plan
for the Districts as submitted.
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