HomeMy WebLinkAbout2018-125-12/18/2018-APPROVING THE CORRECTED DISTRICT BOUNDARY LEGAL DESCRIPTION, DISTRICT BOUNDARY MAP AND VICINITY MAP RESOLUTION 2018-125
OF THE CITY COUNCIL OF THE CITY OF FORT COLLINS
APPROVING THE CORRECTED DISTRICT BOUNDARY LEGAL
DESCRIPTION, DISTRICT BOUNDARY MAP AND VICINITY MAP OF THE
I-25/PROSPECT INTERCHANGE METROPOLITAN DISTRICT AND APPROVING
CORRESPONDING AMENDMENTS TO THE DISTRICT SERVICE PLAN
WHEREAS,Title 32 of the Colorado Revised Statutes("C.R.S.") authorizes the formation
of various kinds of governmental entities to finance and operate public services and infrastructure,
including metropolitan districts; and
WHEREAS, on March 6, 2018, the City Council adopted Resolution 2018-025 Approving
the Service Plan for the I-25/Prospect Interchange Metropolitan District (the "Service Plan'); and
WHEREAS, the Service Plan includes a legal description of the boundaries of the I-
25/Prospect Interchange Metropolitan District (the "District"), as more particularly set forth in
Exhibit"A" ("District Boundary Legal Description"), as attached thereto; and
WHEREAS, the Service Plan includes a map of the boundaries of the District, as more
particularly set forth in Exhibit "B" ("District Boundary Map"), as attached thereto; and
WHEREAS, the Service Plan includes a Vicinity Map of the District, as more particularly
set forth in Exhibit "C" ("Vicinity Map"), as attached thereto; and
WHEREAS,due to a surveyor's error,the District Boundary Legal Description,the District
Boundary Map and the Vicinity Map include 1.685 acres of land within the District's boundaries
that was not intended to be included in these boundaries; and
WHEREAS, City Council wishes to correct the District Boundary Legal Description, the
District Boundary Map and the Vicinity Map to more accurately reflect the District's intended
boundaries, as set forth in the updated Service Plan for I-25/Prospect Interchange Metropolitan
District, attached hereto as Exhibit "A" and incorporated herein by this reference ("Updated
Service Plan"); and
WHEREAS, the City Council wishes to approve the Updated Service Plan solely for the
purpose of correcting the District Boundary Legal Description,the District Boundary Map and the
Vicinity Map and Section IV of the Service Plan so they are consistent with the District's intended
boundaries and finds that these modifications of the Service Plan are not material modifications.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FORT COLLINS, COLORADO, as follows:
Section 1. That the City Council hereby makes and adopts the determinations and
findings contained in the recitals set forth above.
=1-
Section 2. That the City Council hereby approves and accepts the corrected District
Boundary Legal Description,District Boundary Map and Vicinity Map,as set forth in the Updated
Service Plan.
Section 3. That the City Council hereby approves the Updated Service Plan to correct
only the District Boundary Legal Description, the District Boundary Map and the Vicinity Map,
and to change District's approximate acreage in Section IV of the Service Plan from four hundred
seventy-one (471) acres of planned mixed-.use land to approximately four hundred seventy (470)
acres to account for the surveyor's error; and in all other respects all other provisions of the
Updated Service Plan shall remain identical to those in the previously approved Service Plan.
Section 4. That the City Council hereby directs the'District to file the requisite motion
with the)Larimer County District Court to correct the Order and Decree Organizing the District in
accordance with the Updated Service Plan and consistent with this Resolution.
Passed and adopted at a regular meeting of the Council of the City of Fort Collins this 18th
day of December, A.D. 2018.
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EXHIBIT A
SERVICE PLAN
FOR
I-25/PROSPECT INTERCHANGE METROPOLITAN DISTRICT
CITY OF FORT COLLINS, COLORADO
Prepared by:
White Bear Ankele Tanaka& Waldron, Professional Corporation
748 Whalers Way, Suite 210
Fort Collins, Colorado 80525
December 18, 2018
i
TABLE OF CONTENTS
I. INTRODUCTION......................................................::................................:.:....:..:..:........ 1
A. Purpose and Intent................................................................................................... 1
B. Need for the District...........:..............:.... ...::.:.::...................................:.:..:....:....:... 1
C. Objective of the City Regarding District's Service Plan. ....................................... 1
ILDEFINITIONS.....................:............:..............:...........:......:..:.:.,:..,.::::..:.:.::.:..,,:..:..:,:..:.:..: 1
III. BOUNDARIES...................................................................................................................4
IV. PROPOSED LAND USE AND ASSESSED VALUATION.............................:..........1.... 4
V. DESCRIPTION OF PROPOSED POWERS, IMPROVEMENTS AND SERVICES.......4
A. Powers of the District and Service Plan Amendment.............................................4
1. Operations and Maintenance.......................................................................4
2. Inclusion and Exclusion Limitation. ......... ......... ............................4
3. Maximum Debt Authorization....................................................................4
4. Monies from Other Governmental Sources. ...::...:..:..:..............:.:.,:..:,:::..:.. 5
5. Consolidation Limitation............................................................................ 5
6. Eminent Domain Limitation. ......... ....................................................................5
7. Service Plan Amendment Requirement...................................................... 5
VI. FINANCIAL PLAN........................................:..........:...............:.............................................. 5
A. General.................................................................................................................... 5
B. Maximum Debt Service Mill Levy....................,.,.....................................................
C. Security for Debt..................................................................................................... 6
F. TABOR Compliance...........................................................................................`.... 6
G. District's Operating Costs. ......... ......... ......... ........: ......... :....:....:.. 6
H. Election—,....................................................................
VILANNUAL REPORT..........................................................................................:.......... .:.::7
A. General..,............,.........................................................................................................7
B. Reporting of Significant Events..........................:...................:..:.::......
.............:......7
VIII. DISSOLUTION..:....:....:..:.::.:.::.:.::.:.:.........:.::.:.........:........................................................ 7
I.X. PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS AND
EXTRATERRITORIAL SERVICE AGREEMENTS ..............:....:.................:.:..,.:.. .::.:.:8
X. MATERIAL MODIFICATIONS .:.:..:..:.:....:....:................................................................. 8
XI. SANCTIONS:..................................................................................................................... 9
XII. CONCLUSION..............::...::::.:..:.::..................::.:..:.:.:.......:
...............................................9
_ .. . .
XIII. RESOLUTION OF APPROVAL...................................................................................:. 10
LIST OF EXHIBITS
EXHIBIT A Legal Description of District Boundaries
EXHIBIT B District Boundary Map
EXHIBIT C Vicinity Map
EXHIBIT D Capital Pledge Agreement
EXHIBIT E Financial Plan
1587.0003;875074 ii
I. INTRODUCTION
A. Purpose and Intent.
The District,which is intended to bean independent unit of local government separate and
distinct from the City, is governed by this Service Plan. Except as may otherwise be provided for
by State or local law or this Service Plan,the District's activities are subject to review by the City
only insofar as they may deviate in a material manner from the requirements of this Service Plan.
This Service Plan is being submitted in connection with the redevelopment of the
interchange at Interstate Highway 25 and Prospect Road (the "Interchange"), currently owned by
the State of Colorado and operated and maintained by the Colorado Department of Transportation
("CDOT"). CDOT has notified the City that it is planning a project to significantly modify and
improve the Interchange by reconstructing its ramps and bridge and by reconstructing Prospect
Road to a configuration with four(4)through lanes, a raised median, left turn lanes and pedestrian
and bicycle facilities, with this work to include certain enhanced urban design elements (the
"Interchange Project").
The City and the Property Owners have entered into a Binding Agreement with the City,
pursuant to which the Property Owners have agreed to provide for the financing of the Owners
Share (as defined therein)of the Interchange Project through the District.
In connection with the Binding Agreement and the Interchange Project,the District and the
City intend to enter into a Capital Pledge Agreement, in substantially the form and substance as
attached hereto as Exhibit D, at the District's first meeting after the District Organization Date.
The Capital Pledge Agreement shall constitute a Debt of the District, and will set forth the
District's obligation to pledge certain of its revenues to the payment of such Debt.
B. Need for the District.
Organization of the District is integral to the financing of the Interchange Project. The
Interchange Project will provide significant public benefits to the City and its residents, as,well as
the residents, taxpayers and property owners of the District. The Capital Pledge Agreement is
necessary to finance the Interchange Project. There are currently no other governmental entities,
including the City,located in the immediate vicinity of the District that,.at this time,can financially
undertake the obligations underlying the Capital Pledge Agreement. Formation of the District is
therefore necessary in order for the Interchange Project to be provided for in the most economic
manner possible.
C. Obiective of the CitRegarding District's Service Plan..
The City's objective in approving the Service Plan for the District is to authorize the
District to provide partial financing for the Interchange Project through any available revenue
sources provided for in the Capital Pledge Agreement. The District shall be dissolved upon
completion of all obligations under the Capital Pledge Agreement in accordance with Section VIII
of this Service Plan.
II. DEFINITIONS
1
In this Service Plan, the following terms which appear in a capitalized format herein shall
have the meanings indicated below, unless the context hereof clearly requires otherwise:
Binding Agreement: means that certain Binding Agreement Pertaining to Development of
the Interstate Highway 25 and Prospect Road Interchange entered into between the City and the
Property Owners.
Board: means the Board of Directors of the District.
Bond,Bonds or Debt:means bonds,notes or other multiple fiscal year financial obligations
for which the District has promised to impose an ad valorem property tax mill levy, and other
legally available revenue, for payment. The Capital Pledge Agreement constitutes Debt for
purposes of this Service Plan. Such terms do not include annually-appropriated contracts through
which the District procures or provides services:
Capital Pledge Agreement: means that certain Capital Pledge Agreement, in substantially
the form and substance attached hereto at Exhibit D, which is to be entered into between the
District and the City at the District's first meeting after the District Organization Date., as it may
be amended from time to time in accordance with the provisions thereof.
City: means the City of Fort Collins, Colorado.
City Councils means the City Council of the City of Fort Collins, Colorado. Any provision
of this Agreement requiring City Council approval shall be deemed to be exercised by City Council
in its sole discretion.
District: means I-25/Prospect Interchange Metropolitan District.
District Boundaries: means the boundaries of the area described in the legal description
attached hereto as Exhibit A.
District Boundary Map: means the map attached hereto as Exhibit B.
District Organization Date: means the date the order,and decree organizing the District
issued by the Larimer County District Court as required by law is recorded with the Latimer
County Clerk and Recorder.
External Financial Advisor:means a consultant that: (1) is qualified to advise Colorado
governmental entities on matters relating to the issuance of securities by Colorado governmental
entities including matters such as the pricing, sales and marketing of such securities and the
procuring of bond ratings,credit enhancement and insurance in respect of such securities;(2)shall
be an underwriter, investment banker, or individual listed as a public finance advisor in the Bond
Buyer's Municipal Market Place or, in the City's sole discretion5 other recognized publication as
a provider of financial projections; and(3) is not an officer or employee of the District.
Financial-Plan: means the Financial Plan described in Section VI which describes(a) how
the Interchange Project is to be financed; (b) how the Debt is expected to be incurred and either
paid in the ordinary course or defeased; and (c) the estimated operating revenue derived from
i
1587.0003;875074 2
property taxes or other revenue sources for the first budget year through the year in which all
District Debt is expected to be paid in the ordinary course or defeased.
Gallagher Adjustment: means, if, on or after January 1, 2018, there are changes in the
method of calculating assessed valuation or any constitutionally mandated tax credit, cut or
abatement, the Maximum Debt Service Mill Levy may be increased or decreased to reflect such
changes, such increases and decreases to be determined by the Board in good faith (auch
determination to be binding and final) so that to the extent possible, the actual tax revenues
generated by the applicable mill levy, as adjusted for changes occurring after January 1, 2018, are
neither diminished nor enhanced as a result of such changes. For purposes of the foregoing, a
change in the ratio of actual valuation shall be deemed to be a change in the method of calculating
assessed valuation.
Interchange: means the existing interchange at Interstate Highway 25 and Prospect Road.
Interchange Project or Project: means the project to significantly modify and improve the
Interchange, including the reconstruction of its ramps and bridge, and the reconstruction of
Prospect Road to a configuration with four (4) through lanes, raised median, left turn lanes and
pedestrian and bicycle facilities,with this work to include certain enhanced urban design elements.
Maximum Debt Service Mill Levy: means the maximum mill levy the District is permitted
to impose under this Service Plan for payment of Debt as set forth in Section VI,B. below.
Maximum Debt Authorization: means the total Debt the District is permitted to issue as set
forth in Section V.A.3.
Operations and Maintenance Mill Levy: means the mill levy the District is permitted to
impose for payment of operations as set forth in the Financial Plan.
Property Owners: means, collectively, Fort Collins/I-25 Interchange Corner, LLC, a ;
Colorado limited liability company; Gateway at Prospect Apartments, LLC, a Colorado limited
liability company,Land Acquisition and Management,LLC,a Colorado limited liability company,
representing a group of tenants in common, Paradigm Properties LLC,a California limited liability
company,and Colorado State University Research Foundation,a Colorado non-profit corporation.
Public Improvements: means the improvements related to the Interchange Project.
Service Plan: means this service plan for the District approved by the City Council.
Service Plan Amendment: means an amendment to the Service Plan approved by the City
Council in accordance with applicable state law or as provided in this Service Plan.
Special District Act or``Act means Article 1 of Title 32 of the Colorado Revised Statutes;
as amended from time to time.
Stater means the State of Colorado.
Vicinity Map: means the map of the regional area surrounding the Project.
1587.0003;875074. 3
III. BOUNDARIES
The District Boundaries include approximately Four Hundred Seventy (470) acres. A
legal description of the District Boundaries is attached as Exhibit A. A District Boundary Map is
attached hereto as Exhibit B. And, a Vicinity Map is attached hereto as Exhibit C.
IV. PROPOSED LAND USE AND ASSESSED VALUATION
The District consists of approximately Four Hundred Seventy (470) acres of planned
mixed-use land. The current assessed valuation of the District Boundaries is approximately Two
Hundred Thousand Dollars ($200,000) and; at build out, is expected to be sufficient to reasonably
discharge the Debt as contemplated in the Capital Pledge Agreement. Approval of this Service
Plan by the City does not imply its approval of the development of a specific area within the
District.
V. DESCRIPTION OF PROPOSED POWERS, IMPROVEMENTS AND SERVICES
A. Powers of the District and Service Plan Amendment.
The District shall have the power and authority to finance a portion of the costs of
the Interchange Project from revenues lawfully received within the boundaries of the District as
such power and authority is described in the Special District Act, and other applicable statutes,
common law and the State-Constitution, subject to the limitations set forth herein, and in
accordance with the Capital Pledge Agreement.
1. Operations and Maintenance. The purpose of the District is to finance a
portion of the costs of the Interchange Project in accordance with the terms and provisions of the
Capital Pledge Agreement. The District may provide operation and maintenance services related
to any Public Improvements in accordance with a subsequent intergovernmental agreement with
the City. In addition, the District shall be authorized to impose the Operation and Maintenance
Mill Levy to fund ordinary administrative or ministerial expenses, including but not limited to
those expenses required to keep the District in compliance with all applicable local, state, and
federal laws and regulations.
2. Inclusion and Exclusion Limitation. The District shall not include or
exclude any property within the District Boundaries without the prior resolution approval of the
City Council and in compliance with the Special District Act, and if so approved, shall not
constitute a material modification of this Service Plan.
3. Maximum Debt Authorization. The District anticipates issuing
approximately Ten Million Dollars ($10,000,000) (the "Maximum Debt Authorization") in par
value Debt, plus repayment costs as agreed to in the Capital Pledge Agreement, to pay a portion
of such.Interchange Project costs as required under the Capital Pledge Agreement. The District's
Maximum Debt Authorization shall not be exceeded under any circumstances. The District must
seek resolution approval by the City Council before issuing any Debt in excess of the Maximum
Debt Authorization. Such Council approval shall not constitute a material modification of this
Service Plan so long as increases are reasonably related to the Interchange Project, the Binding\
1587.0003; 875074 4
Agreement or the Capital Pledge Agreement. The District shall not issue any Debt other than the
Capital Pledge Agreement.
4. Monies from Other Governmental Sources. The District shall not apply for
or accept Conservation Trust Funds, Great Outdoors Colorado Funds, or other funds available
from or through governmental or non-profit entities for which the City is eligible to apply for,
except pursuant to an intergovernmental agreement with the City. This Section shall not apply to
specific ownership taxes which shall be distributed to and a revenue source for the District without
any limitation.
5. Consolidation Limitation. The District shall not file a request with any
Court to consolidate with another Title 32 district without the prior resolution approval of the City
Council and compliance with the Special District Act.
6. Eminent Domain Limitation. The District shall not exercise its statutory
power of eminent domain without first obtaining resolution approval from the City Council. This
restriction on the Eminent Domain power by the District is being exercised voluntarily and shall
not be interpreted in any way as a limitation on the District's sovereign powers and shall not
negatively affect the District's status as a political subdivision of the State of Colorado as allowed
by the Special District Act.
7. Service Plan Amendment Requirement. The District shall be an
independent unit of local government, separate and distinct from the City, and its activities are
subject to review by the City only insofar as they may deviate in a material manner from the
requirements of the Service Plan. Any action of the District which: (1)violates the limitations set
forth in this Section V.A. or (2) violates the limitations set forth in Section VI. below, shall be
deemed to be a material modification to this Service Plan unless otherwise agreed by the City as
provided for in Section X of this Service Plan or unless otherwise expressly provided herein. All
other departures from the provisions of this Service Plan shall be considered on a case-by-case
basis as to whether such departures are a material modification, unless otherwise expressly
provided herein.
VI. FINANCIAL_PLAN.
A. .General.
The District shall be authorized to provide for financing of the Public Improvements from
its revenues pursuant to the Capital Pledge Agreement. The Capital Pledge Agreement for the
District requires a Debt Service Mill Levy of no less than Seven and One Half(7.5) Mills and no
greater than Ten (10) Mills, subject to the Gallagher Adjustment.
The total Debt that the District shall be permitted to issue shall not exceed the Maximum
Debt Authorization. Subject to the-limitations contained herein,the District Debt evidenced by the
Capital Pledge Agreement shall be payable in such year or years and in such amounts as required
by the Capital Pledge Agreement. The Debt evidenced by the Capital Pledge Agreement may be
payable from any and all legally available revenues of the District, including general ad valorem
taxes to be imposed upon all taxable property within the District. The District may also rely upon
various other revenue sources authorized.by law and as provided in the Capital Pledge Agreement.
1587.0003;875074 5
The Maximum Debt Authorization, Debt Service Mill Levy, Operations and Maintenance
Mill Levy, and all other financial projections and estimates contained in this Service Plan are
supported by the Financial Plan (Exhibit E) prepared by an External Financial Advisor, D.A.
Davidson and Co. The Financial Plan is based on economic, political and industry conditions as
they exist presently and reasonable projections and estimates of future conditions.Notwithstanding
the foregoing, D.A. Davidson and Co. shall not be considered a financial advisor or municipal
advisor with regard to any Debt issuance by the District.
B. Maximum Debt Service Mill Levy.
The Maximum Debt Service Mill Levy shall be the maximum mill levy the District is
permitted to impose upon the taxable property within the District for payment of Debt and shall
be Ten (10) Mills, subject to Gallagher Adjustment, which shall not be exceeded under any
circumstances.
C. Security for Debt.
The District does not have the authority and shall not pledge any revenue or property of
the City as security for the indebtedness set forth in this Service Plan. Approval of this Service
Plan shall not be construed as a guarantee by the City of payment of the District's obligations;nor
shall anything in the Service Plan be construed so as to create any responsibility or liability on the
part of the City in the event of default by the District in the payment of any such obligation or
performance of any other obligation.
F. TABOR Compliance.
The District shall comply with the provisions of the Taxpayer's Bill of Rights("TABOR"),
Article X, § 20 of the Colorado Constitution in conducting the election required in Section IV. H.
In the discretion of the Board, the District may set up other qualifying entities to manage, fund,
construct and operate facilities, services, and programs. To the extent allowed by law, any entity
created by the District will remain under the control of the District's Board.
G. District's Operating Costs.
The estimated cost of legal services and administrative services,together with the estimated
costs of the District's organization and initial operations, are anticipated to be Two Hundred
Thousand Dollars ($200,000), which will be eligible for reimbursement as provided for in the
Capital Pledge Agreement.
In addition to the capital costs of the Public Improvements, the District will require
operating funds for administrative and regulatory compliance costs. It is anticipated that these
costs will be funded through the imposition of an developer advances and/or the Operations and
Maintenance Mill Levy, and shall be eligible for reimbursement by the City as provided for in the
Capital Pledge Agreement. The first year's operating budget is estimated to be Twenty Thousand
Dollars ($20,000).
1587.0003; 875074 6
1
H. Election.
The District will call an election on the questions of organizing the District, electing the
initial Board, and setting in place as required by TABOR the tax, debt and other financial
authorizations and obligations contemplated in the Capital Pledge Agreement. The election will
be conducted as required by law.
VII. ANNUAL REPORT
A. General.
The District shall be responsible for submitting an annual report with the City's clerk not
later than September 1 st of each year for the year ending the preceding December 31 following
the year of the District Organization Date. The City may, in its sole discretion, waive this
requirement in whole or in part, The District shall also submit all reports required pursuant to the
Capital Pledge Agreement.
B. Reporting of Significant Events.
Unless waived by the City, the annual report shall include the following:
l. A narrative summary of the progress of the District in implementing their
service plan for the report year;
2. Except when exemption from audit has been granted for the report year
under the Local Government Audit Law, the audited financial statements of the District for the
report year including a statement of financial condition (i.e., balance sheet) as of December 31 of
the report year and the statement of operations(i.e., revenues and expenditures)for the report year;
and
3. Any other information deemed relevant by the City Council or deemed
reasonably necessary by the City's manager and communicated in a timely manner to the District.
In the event the annual report is not timely received by the City's clerk or is not fully
responsive, notice of such default may be given to the Board of such District, at its last known
address. The failure of the District to file the annual report within Forty-Five (45) days of the
mailing of such default notice by the City's clerk may constitute a material modification, at the
discretion of the City.
VIII. DISSOLUTION
Upon payment of all outstanding obligations under the Capital Pledge Agreement, and
upon prior appropriation for all related dissolution costs and any other outstanding obligations of
the District,the District agree to file a petition in the Larimer County District Court for dissolution,
pursuant to the applicable State statutes. In no event shall dissolution occur until the District has
provided for the payment or discharge of all of their outstanding indebtedness and other financial
obligations as required pursuant to State statutes, including operation and maintenance activities.
1587.0003;875074 7
IX. PROPOSED AND EXISTING INTERGOVERNMENTAL AGREEMENTS AND
EXTRATERRITORIAL SERVICE_AGREEMENTS.
All intergovernmental agreements must be for purposes, facilities, services or agreements
lawfully authorized to be provided by the District, pursuant to the State Constitution, Article XIV,
Section 18(2)(a)and Sections 29-1-201, et seq., C.R.S. To the extent practicable, the District may
enter into additional intergovernmental and private agreements to better ensure long-term
provision of the Public Improvements identified herein or for other lawful purposes of the District.
Agreements may also be executed with property owner associations and other service providers.
The District shall approve the Capital Pledge Agreement at the District's first meeting after
the District Organization Date;provided that the Capital Pledge Agreement may be revised by the
City and the District to include such additional details and requirements therein as are deemed
necessary by the parties. Failure by the District to execute the Capital Pledge Agreement as
required herein shall constitute a material modification hereunder. The Capital Pledge Agreement
may be amended from time to time by the City and the District,provided that any such amendment
shall be in compliance with the provisions of this Service Plan.
No other agreements are required,or known at the time of formation of the District to likely
be required, to fulfill the purposes of the District. Execution of intergovernmental agreements or
agreements for extraterritorial services by the District that are not described in this Service Plan
and which are likely to cause a substantial increase in the District's budgets shall require the prior
approval of the City Council, which approval shall not constitute a material modification hereof.
X. MATERIAL MODIFICATIONS
Material modifications to this Service Plan may be made only in accordance with Section
32-1-207, C.R.S. No modification shall be required for an action of the District which does not
materially depart from the provisions of this Service Plan.
Departures from the Service Plan that constitute a material modification include without
limitation:
I. Actions or failures to act that create material financial risk or burden for the
City;
2. Performance of a service or function or acquisition of a major facility that
is not closely related to a service, function or facility authorized in the Service Plan;
3. Failure to perform a service or function or acquire a facility required by the
Service Plan;
4. Failure by the District to execute and deliver the Capital Pledge
Agreement; and
5. Failure to comply with the limitations set forth in Section V.A. or Section
VI of this Service Plan.
1587.0003;875074 8
Actions that are not to be considered material modifications include without-limitation
changes in quantities of facilities or equipment, immaterial cost differences, and actions expressly
authorized in the Service Plan.
XI. SANCTIONS
Should the District undertake any act without obtaining prior City Council
resolution approval as required in this Service Plan or that constitutes a material
modification to this Service Plan as provided herein or under the Special District Act, the
City may impose one (1) or more of the following sanctions, as it deems appropriate:
I Exercise any applicable remedy under the Act;
2. Withhold the issuance of any permit; authorization, acceptance or
other administrative approval, or withhold any cooperation, necessary for the District's
development, construction or operation of improvements, or the provisions of services as
contemplated under this Service Plan;
3. Exercise any legal remedy as provided in the Capital Pledge
Agreement or in any other intergovernmental agreement with the City under which the
District is in default; or
4. Exercise any other legal remedy at law or in equity, including seeking
specific performance, mandamus or injunctive relief against the District, to ensure the
District's compliance with this Service Plan and applicable law.
XIL CONCLUSION
It is submitted that this Service Plan for the District, as required by Section 32-1-203(2),
establishes that:
1. There is sufficient existing and projected need for organized service in the
area to be serviced by the District;
2. The existing service in the area to be served by the District is inadequate for
present and projected needs;
3. The District is capable of providing economical and sufficient service to the
area within their proposed boundaries; and
4. The area to be included in the District does have,and will have,the financial
ability to discharge the proposed indebtedness on a reasonable basis.
1587.0003;875074 9
XIII. RESOLUTION.OF APPROVAL
The District agrees to incorporate the City Council's resolution of approval, including any
conditions on any such approval, into the Service Plan presented to the District Court for and in
Larimer County, Colorado.
1587.0003; 875074 10
EXHIBIT A
I-25/Prospect Interchange Metropolitan District
Legal Description
NORTHERN
ENGINEERING
DESCRIPTION: 1-25/PROSPECT INTERCHANGE METROPOLITAN DISTRICT BOUNDARIES
Tracts of land located in Sections 15,16, 21, and 22, Township 7 North, Range 68 West of the
Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more
particularly described as follows:
Considering the West line of the Southeast Quarter of said Section 16 as bearing North 000 11'
16 East, and with all bearing contained herein relative thereto:
Commencing at the South Quarter Corner of said Section 16; thence along the West line of the
Southeast Quarter, North 00° 11' 16" East, 360.01 feet to the Northwest corner of Lot 1, Block 1,
Boxelder Estates Second Filing to POINT OF BEGINNING 1; thence along West line of the
Southeast Quarter, North 00' 11' 16" East, 736.49 feet to the Northeast corner of a parcel of land
as described at Reception No. 95076406, Larimer County Clerk and Recorder; thence, North 88'
20' 33" West, 315.26 feet to the Southeast corner of a parcel of land as described at Reception No.
20140007506, Larimer County Clerk and Recorder; thence along the East line of said parcel,
North 25' 21' 13" West, 264.37 feet to the Southeast corner of a parcel of Land described at
Reception No. 93054775, Larimer County Clerk and Recorder; thence along said parcel the
following 3 courses and distance: North 00' 12' 15" East, 1649.54 feet; thence, South 890 47'
45" East, 200.00 feet; thence, North 00' 12' 15" East, 216.34 feet to a point on the South line of
a parcel of land described at Reception No. 133800200, Larimer County Clerk and Recorder;
thence along said South line, South 83' 28' 53" East, 232.09 feet to the Southeast corner of said
parcel, said point being on the East line of Sunrise Estates extended; thence along said East line,
North 000 08' 06" East, 1117.52 feet to a point on the South Line of Crossroads East Business
Center; thence along said South line the following 5 courses and distance: South 250 46' 37" East,
448.1.1 feet; thence, South 480 55' 44" East, 1510.22 feet; thence, South 240 21' 14" East,
195.19 feet; thence, South 58' 04' 14" East, 132.96 feet to the Southeast corner of said
Crossroads East Business Center; thence along the East line of said Crossroads East Business
Center, North 00' 11' 16" East, 33.04 feet to a point on the South line of Smithfield Subdivision;
thence along said South line the following 4 courses and distance: South 65' 21'37" East, 353.30
feet; thence, South 79' 21' 37" East, 300.00 feet; thence, North 570 08' 23" East, 197.00 feet;
thence, North 69' 08' 23" East, 141.86 feet to a point on the West line of Interstate Highway 25;
thence along said West line the following 2 courses and distances: South 00' 11' 10" West,
601.01 feet; thence, South 010 58' 22" West, 408.31 feet to the North line of Interstate Land PUD
First Filing; thence along said Interstate Land PUD First Filing the following 2 courses and
distances: North 76' 26' 25" West, 300.61 feet; thence, South 110 47' 57" West, 629.05 feet to
the West line of Interstate Highway 25 Frontage Road; thence along said Interstate Highway 25
Frontage Road the following 6 courses and distances: South 85' 36' 15" West, 289.72 feet;
thence, South 820 01' 25" West, 157.09 feet; thence along a curve concave to the southeast
having a central angle of 62' 57' 26" with a radius of 449.26 feet, an arc length of 493.65 feet
Page 1 of 5
FORT COLLINS: 301 North Howes Street, Suite 10.0, 80521 1970.221.4158
GREELEY: 820 8`" Street, 80631 1 970.395.9880 1 WEB: www.northernengineenng.com
and the chord of which bears'South 43' 37' 30" West, 469.19 feet; thence, South 050 13' 35"
West, 157.09 feet; thence South 010 38, 45" West, 455.56 feet to Point A; thence, South 460 38'
49" West, 102.54 feet to the North right-of-way line of East Prospect Road; thence along said
North line, North 88' 21' 30" West, 222.35 feet to the East line of Lot 3, Block 1, Boxelder Estates
Second Filing; thence along the East, North and West lines of said Lot 3 the following 3 courses
and distances: North 010 88' 10" East, 242.53 feet; thence, North 88' 21' 50" West, 290.40 feet;
thence, South 010 38' 10" West, 242.50 feet to the North right-of-way line of East Prospect Road;
thence along said North line, North 880 2 P 30" West, 516.42 feet to the East line of Lot 1, Block
1, Boxelder Estates Second Filing; thence along said East line, North 000 1 P 10" East, 302.55 feet
to the North line of said Lot 1; thence along said North line, North 880 21' 50" West, 120.13 feet
to POINT OF BEGINNING 1, containing 6,777,385 square feet or 155.59 acres, more or less.
AND
Commencing at aforementioned Point A; thence South 880 21' W' East, 79.99 feet to POINT OF
BEGINNING 2; thence, North 01' 38' 45" East, 455.57 feet; thence; North 05' 03' 18" East,
142.46 feet; thence along a curve concave to the southeast having a central angle of 62' 57' 26"
with a radius of 369.26 feet, an arc length of 405.75 feet and the chord of which bears North 43'
37' 30" East, 395.64 feet; thence, North 82' 11' 42" East, 142.46 feet; thence, North 850 36' 05"
East, 289.72 feet; thence, North 82' 01' 25" East, 157.09 feet; thence along a curve concave to
the northwest having a central angle of 28' 04' 38" with a radius of 449.26 feet, an arc length of
220.16 feet and the chord of which bears North 61' 03' 55" East, 217.96 feet; thence, South 890
48' 10" East, 79:52 feet; thence, South 00' 11' 10" West, 379.24 feet; thence, South 100 33' 17"
West, 201.18 feet; thence, South 260 47' 14" West, 560.45 feet; thence, South 610 09' 08" West,
99.88 feet; thence, North 880 18' 07" West, 203.23 feet; thence, North 00' 12' 05" East, 158.22
feet; thence North 880 21' 25" West, 410.00 feet; thence, South 000 12' 05" West, 199.99 feet;
thence, North 88' 21' 25" West, 59.24 feet; thence, North 430 21' 11" West, 141.39 feet to
POINT OF BEGINNING 2, containing 939,998 square feet or 21.58 acres, more or less.
Together with a Tract of land located in the Southwest Quarter of Section 15, Township 7 North,
Range 68 West of the Sixth Principal Meridian, City of Fort Collins, County of Larimer, State of
Colorado, being more particularly described as follows:
Considering the North line of the Southwest Quarter of said Section 15 as bearing South 890 38'
43" East, and with all bearings contained herein relative thereto:
Commencing at the West Quarter Corner of said Section 15; thence along the North line of the
Southwest Quarter, South 89' 38' 43" East, 45.00 feet to a point on the East right-of-way line of
the Southeast Frontage Road of Interstate Highway 25, said point being POINT OF BEGINNING 1
thence continuing along the North line of the Southwest Quarter of Section 15, South 89' 38' 43"
East, 2598.20'feet to the Center Corner of said Section 15; thence along the North-South Section
line of Section 15, South 00' 05' 39" West, 1331.29 feet to the Center-South Sixteenth Corner of
Section 15, also being a point on the North line of that Parcel of land as described at Reception No.
99062749, Larimer County Clerk and Recorder; thence along the North and West lines of said
Parcel the following 2 courses and distances: North 890 49' 50" West, 637.70 feet; thence, South
00° 00' 36" West, 804.25 feet to a point on the North line of that parcel of land described at Book
1531 Page 759, Larimer County Clerk and Recorder; thence along said North line the following 5
courses and distances: thence, North 54' 58' 16" West, 474.72 feet; thence, North 760 19' 16"
West, 163.85 feet; thence, North 84' 59' 16" West, 548.82 feet; thence, North 67' 52' 16" West,
Page 2 of 5
r
88.12 feet; thence, North 540 48' 16" West, 949.54 feet to the Easterly right-of-way line of the
Southeast Frontage Road of Interstate Highway 25; thence along said Easterly right-of-way line the
following 2 courses and distances: North 000 1 P 39" East, 1151.18 feet; thence, North 09' 26'
43" West, 59.72 feet to POINT OF BEGINNING 1, containing 4,203,912 square feet or 96.51
acres, more or less.
AND
Commencing at the West Quarter Corner of said Section 15; thence along the North line of the
Southwest Quarter, South 89' 38' 43" East, 2,643.20 feet; thence, South 000 05'39" West,
1331.29 feet; thence, North 890 49' 50" West, 637.70 feet; thence, South 00' 00' 36" West,
804.25 feet; thence, South 00' 00' 36" West, 61.05 feet to POINT OF BEGINNING 2; thence,
South 00' 00' 36" West, 438.93 feet to a point on the North right-of-way line of East Prospect
Road; thence, South 000 00' 36" West, 30.00 feet to a point on the South line of the Southwest
Quarter of Section 15; thence along said South line, North 89' 59' 24" West, 1181.93 feet;
thence, North 00' 00' 36" East, 30.25 feet to a point on the North right-of-way line of East
Prospect Road, said point also being on the Easterly right-of-way line of the Southeast Frontage
Road of Interstate Highway 25; thence along said Easterly right-of-way line the following 7 courses
and distances: North 650 50' 44" West, 112.37 feet; thence, South 890 54' 52 West, 299.87
feet; thence, North 57' 21' 33" West, 106.29 feet; thence, North 26' 23' 32" West, 458.81 feet;
thence, North 110 18' 02" West, 200.00 feet; thence, North 03' 14' 53" West, 294.32 feet;
thence, North 000 10' 38" East, 360.36 feet to a point on the South line of that parcel of land
described at Book 1531 Page 759, Larimer County Clerk and Recorder;thence along said South
line the following 5 courses and distances: South 54' 48' 16" East, 895:99 feet; thence, South 67'
52' 16" East, 101.38 feet; thence, South 84' 59' 16" East, 552.56 feet; thence South 76' 19' 16"
East, 150.63 feet; thence, South 540 58' 16" East, 500.33 feet to POINT OF BEGINNING 2,
containing 1,580,513 square feet or 36.28 acres, more or less.
Together with a tract of land located in the Northwest Quarter of Section 22, Township 7 North,
Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado being
more particularly described as follows:
Considering the North line of said Northwest Quarter as bearing South 89059'00" East and with all
bearings contained herein relative thereto:
Beginning at a point on the North line of the said Northwest Quarter which bears South 89059'00"
East, 11.99.65 feet from the Northwest corner of said Section 22; thence.South 89°59'00" East
118.59 feet along said North line; thence South, 77.95 feet; thence South 89°59'00" East, 27.06
feet; thence South 15°16'00" West, 1035.05 feet along the centerline of the Sand Dike Ditch;
thence West, 971.76 feet to a point on the Easterly Right-of-Way line of Interstate Highway No.
25; thence along said Easterly Right-of-Way North 06013'00" East, 211.40 feet, and again North
18021'30" East, 458.46 feet; thence South 89059'00" East, 810.90 feet; thence North 15036'00"
East, 447.99 feet to the POINT OF BEGINNING, containing 441,544 square feet or 10.137 acres,
more or less, excepting therefrom any portion conveyed to the Colorado State Department of
Highways by instruments recorded May 23, 1947 in Book 833 at Page 522 and May`23, 1988 at
Reception No. 88023148, and also except that portion conveyed in the Warranty Deed recorded
January 3, 2005 at Reception No. 20050000154, County of Larimer, State of Colorado.
Page 3 of 5
AND
Considering the North line of said Northwest Quarter as bearing South 89059'00" East and with all
bearings contained herein relative thereto:
Beginning at a point which bears North 89059'00" West, 1446.03 feet from the North Quarter
corner of said Section 22; thence North 89059'00" West, 371.65 feet; thence South 00001'00"
West, 30.00 feet to a point on the Southeasterly Right-of-Way line of Interstate No 25; thence
South 65°47'30" West, 109.70 feet along said Right-of-Way line; thence North 89°59'00" West,
300.00 feet along said Right-of-Way line; thence South 52025'00" West, 70.10 feet along said
Right-of-Way line; thence South 18°21'30" West, 330.54 feet along said Right-of-Way line; thence
South 89059'00" East, 810.90 feet;thence North 15°36'00" East, 447.99 feet to the POINT OF
BEGINNING, containing 314,194 square feet or 7.213 acres, more or less.
Together with a Tract of land located in Section 21, and Section 22, Township 7 North, Range 68
West of the Sixth Principal Meridian, City of Fort Collins, County of Lorimer, State of Colorado,
being more particularly described as follows:
Considering the South line of the Southwest Quarter of said Section 21 as bearing South 890 01'
48" East, and with all bearing contained herein relative thereto:
Commencing at the Northeast Corner of said Section 21; thence, North 880 38' 29" West,
1241.97 feet; thence, South 010 21' 31" West, 30.00 feet to the P0114T OF BEGINNING, said
point being the Northeast corner of an Easement granted to the State Department of Highways as
recorded at Reception No. 88026808 of the Lorimer County Clerk and Recorder; thence, South 440
05' 25" West along the Southeasterly line of said Easement, Recorded at 88026808, 37.44 feet to
the Southerly line of a parcel of land described at Reception No. 20060041498 of the Lorimer
County Clerk and Recorder; thence, South 88'38' 29" East along said Southerly line and the
Easterly prolongation thereof, 345.55 feet to the Westerly line of a parcel of land described within
Exhibit " A" at Book 1992, Page 280 of the.Larimer County Clerk and Recorder; thence, South 610
58' 19" East along said Westerly line, 35,56 feet to the Northerly line of said parcel described
within Book 1992, Page 280; thence, North 89' 50' 02" East along said Northerly line, 13.83 feet
to the Westerly line of a parcel of land described at Book 1234, Page 241 of the Lorimer County
Clerk and Recorder; thence, South 64' 24' 59" East along said Westerly line, 4.65 feet to the
Southerly line of a parcel of land described within said Book 1234, Page 241, said Southerly line
being parallel with and 75.00 feet Southerly of, as measured at a right angle to the North line of
the Northeast Quarter of said Section 21; thence, South 880 38' 29" East along said Southerly line,
300.00 feet to the Westerly Right=of-Way line of Interstate Highway No. 1-25; thence, along the
Westerly Right-of-Way lines of Interstate Highway No. 1-25 the following 9 courses and distances:
South 50' 23' 59" East, 72.51 feet; thence, South 180 02' 31" East, 798.28 feet; thence, South
060 22' 28" East, 704.20 feet; thence, South 000 05' 56" East, 53.90 feet; thence along a curve
concave to the east having a central angle of 06' 33' 06" with a radius of 11583.00 feet, an arc
length of 1324.50 feet and the chord of which bears South 03' 24' 23" East, 1323.78 feet;
thence, South 050 48' 32" West, 417.50 feet; thence along a curve concave to the east having a
central angle of 03' 00' 00'' with a radius of 11680.00 feet, an arc length of 611.57 feet and the
chord of which bears South 10' 09' 58" East, 611.50 feet; thence, South 25' 42' 58" East,
425.50 feet; thence, South 120 55' 58" East, 968.64 feet to the South line of the Southwest
Quarter of said Section 22; thence, South 890 43' 29" West along the South line of the Southwest
Quarter of said Section 22, 344.34 feet to the Southeast corner of said Section 21; thence, North
Page 4 of 5
89' 01' 48" West along the South line of the Southeast Quarter of said Section 22, 713.93 feet;
thence parallel with and 20 feet Westerly of the centerline of an existing access road the following
15 courses and distances: North 30' 07' 30" West, 653.11 feet; thence along a curve concave to
the northeast having a central angle of 270 35' 32" with a radius of 424.29 feet, an arc length of
204.33 feet and the chord of which bears North 16' 19' 44'` West, 202.36 feet; thence, North 020
31' 58" West, 432.64 feet; thence, North 000 56' 51" West, 512.69 feet; thence, North 220 22'
44" West, 121.69 feet; thence, North 03' 04' 28" West, 129.58 feet; thence along a curve
concave to the southwest having a central angle of 42' 50' 08" with a radius of 157.27 feet, an arc
length of 117.58 feet and the chord of which bears North 24' 29'32" West, 114.86 feet; thence,
North 450 54' 36" West, 71.28 feet; thence along a curve concave to the east having a central
angle of 30° 41' 12" with a radius of 330.34 feet, an arc length of 176.92 feet and the chord of
which bears North 300 34, 00" West, 174.82 feet; thence, North 15' 13' 24" West, 100.27 feet;
thence along a curve concave to the southwest having a central angle of 20' 34' 23" with a radius
of 289.75 feet, an arc length of 104.04 feet and the chord of which bears North 250 30' 36"
West, 103.48 feet; thence, North 35° 47' 47 West, 144.89 feet; thence along a curve concave to
the northeast having a central angle of 37' 10' 11" with a radius of 364.63 feet, an arc length of
236.55 feet and the chord of which bears North 17' 12' 42" West, 232.42 feet; thence, North 010
22' 24" East, 921.36 feet; thence along a curve concave to the southeast having a central angle of
170 07' 56" with a radius of 707.08 feet, an arc length of 211.43 feet and the chord of which
bears North 09' 56' 22" East, 210.64 feet; thence, North 89' 40' 07" East, 6.45 feet to the
Southerly prolongation of the Westerly line of said Easement, Recorded at Reception No.
88026808; thence, North 170 24' 16" East along said Southerly prolongation and also along the
Westerly line of said Easement, Recorded at Reception No. 88026808, 673.89 feet;thence along
the Westerly and Northerly lines of that Easement granted to the State Department of Highways at
Reception No. 88026808 of the Larimer County Clerk and Recorder the following 5 courses and
distances: thence along a curve concave to the east having a central angle of 40' 05' 20" with a
radius of 532.96 feet, an arc length of 372.90 feet and the chord of which bears North 020 38'
24" West, 365.34 feet; thence, North 220 41' 04" West, 110.41 feet; thence along a curve
concave to the northeast having a central angle of 15' 37' 22" with a radius of 612.96 feet, an arc
length of 167.14 feet and the chord of which bears North 14' 52' 23" West, 166.62 feet; thence,
North 45° 28' 31" West, 146.18 feet to a line being 30.00 feet Southerly, as measured at a right
angle, of the North line of the Northeast Quarter of said Section 21; thence,South 88'38' 29" East
along a line parallel with and 30.00 feet Southerly of, as measured at a right angle to the North line
of the Northeast Quarter of said Section 21, 280.00 feet to the POINT OF BEGINNING, containing
6,204,458 square feet or 142.435 acres more or less.
The above described Tracts of land,contain 20,462,004 square feet or 469.743 acres more or less
and is subject to all easements and rights-of-way now on record or existing.
November 1,2018
CNS
D:\Projects\102-002\Metro District\Overlay District\102-002_Overall Boundary-Overall.docx
Page 5 of 5
EXHIBIT B
I-25/Prospect Interchange Metropolitan District
Boundary Map
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DISTRICT TOTAL = 69.745 ac.
j1000 0 1000 Feet
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NORTHERN 1-25/PROSPECT INTERCHANGE DISTRICT BOUNDARY MAP
ENGINEERING METROPOLITAN DISTRICT
C.Snov sME- EXHIBIT
FORTCOLLINS c.sn_oweon i,=looa
FORT COLONS:301 NUM HMW Shut Sure 100,OM21 970.221,4158 COLORADO DATE PMECT B
GREE :820 8th Strout 80631 naMornmigineenrig.mn November 1,2018 102-002
EXHIBIT C
I-25/Prospect Interchange Metropolitan District
Vicinity Map
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ENGINEERING METROPOLITAN DISTRICT D".N BY
FORT COLLINS C.Snmdon 11'•7260b' EXHIBIT
FORT COWNS:3G1 Nonh Amm Sheet Sub 10.0,SMI 970.221.4158 COLORADO C
GREELEY:820 am street SM1 December 11,20
l
EXHIBIT D
I-25/Prospect Interchange Metropolitan District
Capital Pledge Agreement
40780828.v1
I
CAPITAL PLEDGE AGREEMENT
This CAPITAL PLEDGE AGREEMENT, made and entered into as of 2018
(this "Capital Pledge Agreement" or this "Agreement', by and between the 1-25/PROSPECT
INTERCHANGE METROPOLITAN DISTRICT, a special district organized and existing under
the laws of the State of Colorado(the"Interchange District")and the CITY OF FORT COLLINS,
a Colorado home rule municipality(the"City") (each a"Party"and jointly the"Parties),
WITNESSETH:
WHEREAS, pursuant to a Memorandum of Understanding dated as of January 30, 2018
(the "MOU") by and among the City and the other parties identified therein.(the "Owners"), the
City and the Owners established a non-binding outline of documents and terms to be negotiated
for the sharing of costs of improvements to the highway interchange at Interstate Highway I-25
and Prospect Road in the City; and
WHEREAS, one of the documents contemplated by the MOU was an intergovernmental
agreement between the Interchange District and the City, identified as the Capital Pledge
Agreement, whereby the Interchange District would pledge certain revenues as security for its
obligation to pay the Owners' Share of the cost of such improvements; and
WHEREAS, this Agreement shall constitute the Capital Pledge Agreement contemplated
by the MOU;
NOW, THEREFORE, for and in consideration of the promises and mutual covenants and
understandings herein,the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Definitions. Capitalized terms used herein and not defined in the Recitals
above or elsewhere in this Agreement shall have the meanings,respectively,specified in Appendix
A hereto.
Section 1.02. Interpretation. In this Agreement, unless the context expressly indicates
otherwise,the following words shall be interpreted as set forth belowa
(a) The words herein," "hereunder,"_ «hereby,„ .' ereto, hereof and any
similar words,refer to this Agreement as a whole and riot to any particular article,section,
or subdivision hereof; the word "heretofore" means before the date of execution of the
Agreement; and the term"hereafter"means after the date of execution of this Agreement.
(b) All definitions, terms, and words shall include both the singular and the
plural, and, except as otherwise expressly defined in the text of this Agreement, all
capitalized words or terms shall have the meanings specified in Appendix A attached
hereto.
(c) Words of the masculine gender include correlative words of the feminine
and neuter genders, and words importing the singular number include the plural number
and vice versa.
(d) The captions or headings of this Agreement are for convenience only, and
in no way define, limit, or describe the scope or intent of any provision, article, or section
of this Agreement.
(e) All schedules, exhibits, and addenda referred to herein are incorporated
herein by this reference.
ARTICLE II
FUNDING OF THE PROJECT; PAYMENT OBLIGATION
Section 2.01. Covenant of the City to Finance Project. The City agrees that, subject to
annual appropriation by the City Council,it shall fund all the costs of the Project that are not being
paid by CDOT. The City expects to finance a portion of such costs through the execution and
delivery of the Certificates of Participation.
Section 2.02. Calculation of Owners' Share. The Owners' Share shall be the share of
the costs of the Project to be funded by the Interchange District in accordance with the terms and
provisions of the Binding Agreement and this Capital Pledge Agreement. The Owners agreed to
fund costs of the Project in the amount of$8,250,000,plus financing costs and interest as provided
in this Agreement. In connection with the execution and delivery of the Binding Agreement, the
City granted the TCEF Credit in the amount of$700,000, which reduced the amount that the
Owners' agreed to pay to fund the Project to $7,550,000, plus financing costs and interest. The
City has agreed in the Binding Agreement to grant the ROW Credit in the amount of$500,000 to
further reduce the principal amount of the Owners' Share upon compliance with the provisions set
forth in Section 2.3 of the Binding Agreement.
The initial principal amount of the Owners' Share shall be calculated on the date of
execution and delivery of the Certificates of Participation. The principal amount of the Owners'
Share shall be an amount equal to$7,550,000,plus the Interchange District Financing Costs, less
the ROW Credit to the extent that the ROW Credit has been granted on or prior to the execution
and delivery of the Certificates of Participation. Upon the execution and delivery of the
Certificates of Participation, the City shall determine the Interchange District Financing Costs
which shall be added to the principal amount of the Owners' Share. The principal amount of the
Owners' Share shall bear per annum interest at the net effective interest rate borne by the
Certificates of Participation beginning on the date of execution and delivery of the Certificates of
Participation. The City shall prepare or cause to be prepared a Payment Schedule that sets forth a
twenty year principal amortization of the Owners' Share, bearing interest at the net effective
interest rate on the Certificates of Participation, with level debt service payments rounded to the
nearest$1000. The Payment Schedule shall set forth the principal amount due in each year,plus
the interest due in each year. The City shall remit such Payment Schedule to the Interchange
District and the Owners, and such Payment Schedule shall be. binding on the Parties absent
manifest error.
2
In the event that all of the outstanding Certificates of Participation are refinanced by the
City at a lower interest rate, the interest rate on the Owners' Share shall be reduced to the net
effective interest rate borne by the refunding certificates or other refunding obligations, and the
City shall prepare a revised Payment Schedule reflecting the lower interest rate.
The Interchange District acknowledges and agrees that the obligation to pay the Owners'
Share is not contingent on the Certificates of Participation remaining outstanding. The obligation
to pay the Owners' Share shall continue notwithstanding that the City may prepay all or any portion
of the outstanding Certificates of Participation, or that an event of default or an event of non-
appropriation may occur under the lease documents relating to the Certificates of Participation.
Section 2.03. Funding of Owners' Share.
The Interchange District agrees to fund the Owners' Share solely from the Pledged
Revenues,as follows:
(a) The Owners' Share shall be payable in twenty installments in the amount
set forth in the Payment Schedule on or prior to December 1 of each year, beginning
December 1, 2019, subject to adjustment for prepayment of principal and the ROW Credit
as hereinafter set forth.
(b) On or prior to the last day of each month,the Interchange District shall remit
or cause to be remitted to the City all Pledged Revenues that it or the PIF Collection Agent
received through the last day of the prior month. . The City shall provide written
acknowledgement to the Interchange District of the receipt of such Pledged Revenues,
including the amount of Project Fee revenues that have been collected and retained by the
City pursuant to Section 2.05 hereof.
(c) On or prior to December 1 of any given year,the Interchange District shall
provide written notice to the City of the amount of revenues from the Project Mill Levy
that have been applied to the payment or reimbursement of Formation Costs, if any. The
Interchange District shall have the right to apply revenues from the Project Mill Levy to
the repayment or reimbursement of Formation Costs,but the Interchange District shall not
receive a credit toward the Owners' Share in the event of such repayment or
reimbursement.
(d) On or prior to December I of any given year, the.Interchange District shall
also provide written notice to the City of the Eligible Operational Costs incurred by the
Interchange District in such year, together with any documentation of such Eligible
Operational Costs as reasonably requested by the City. The amount of the Eligible
Operational Costs incurred by the Interchange District in each year shall be applied as a
credit (i) first toward the interest due on the Owners' Share in such year, and (ii) second
toward the principal amount of the Owners' Share due in such year.
(e) In the event that on December 1 of any given year the amount of Pledged
Revenues remitted to the City in such year, plus the amount of the Eligible Operational
Costs for such year,are less than the Owners' Share due on or prior to December I of such
year, after any credit as hereinafter set forth,the amount of any such deficit shall begin to
3
bear interest on December I of such year,until such deficit is paid,at a fixed rate equal to
the rate the City then charges under its"Inter-agency Loan Program" found in Section 8.8
of its "Financial Management Policy 8". Any Pledged Revenues thereafter remitted shall
be applied (i) first to any interest due on such deficit, (ii) second to the repayment of the
principal amount of such deficit that remains outstanding, (iii)third to the annual interest
payment due on or prior to the following December 1,and(iv)fourth to the annual principal
payment due on or prior to the following December 1. In the event that on December 1 of
any given year the amount of Pledged Revenues remitted to the City, plus the amount of
the Eligible Operational Costs for such year, are more than the amount of the Owners'
Share due on or prior to December 1 of such year, and any deficit from any prior years,
plus interest on any such deficit,have been paid in full,then such excess Pledged Revenues
shall be credited first against the interest amount of the Owners' Share due in the next
subsequent year, and then against the principal amount of the Owners' Share due in the
next subsequent year.
(f) No later than December 31 in each year, the City shall provide the
Interchange District with a summary of(i) the Pledged Revenues received in such year
through December I of such year,(ii)the amount of the Eligible Operational Costs credited
to the payment of the interest and principal of the Owners' Share in such year, (iii) the
amount of any credit or deficit remaining as of December 1 of such year, (iv)the amount
of unpaid interest, if any, as of December 1 of such year, and (v) the total amount of the
Owners' Share paid or credited through December 1 of such year.
(g) The Parties acknowledge and agree that so long as(i)the Project Mill Levy,
the Project Fees and the Interchange PIF are being imposed and collected in accordance
with the Binding Agreement and this Capital Pledged Agreement, and(ii)the Interchange
District is remitting or causing the remittance of all the Pledged Revenues to the City in
accordance with the provisions of this Capital Pledge Agreement, then in the event that
there are insufficient Pledged Revenues to pay the full amount of the Owners' Share due
in any year, this shall not constitute an event of default hereunder, but the unpaid amount
of the Owners' Share shall remain outstanding until paid in full and interest shall accrue
on any payment deficit as set forth in Section 2.03(e)hereof.
(h) The Interchange District may prepay the Owners' Share in whole or in part
in any amount,on any date,without prepayment premium. Any such prepayment shall be
applied first to any unpaid interest due on the Owners' Share. After any such unpaid
interest has been paid, the remainder of such prepayment may be applied against the
principal amounts due on the Owners' Share in inverse order of the principal payments
due, orpro-rata to payments that are due,or in such other manner as determined in writing
by the Interchange District. Upon any such partial prepayment, the Interchange District
shall provide the City with a revised Payment Schedule.
(i) The ROW Credit shall be applied as a credit against the principal amount
of the Owners' Share, as provided in Section 2.3 of the Binding Agreement. Upon the
granting of such ROW Credit,the Owners have the right under the Binding Agreement to
detemvne how the ROW Credit will be applied against the principal amount of the Owners'
Share. Upon receipt of written notice by the Interchange District from the Owners of the
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application of the ROW Credit,the Interchange District shall provide the City and the
Owners with the revised Payment Schedule reflecting such ROW Credit.
Q)The obligation of the Interchange District to pay the Owners' Share as provided
herein shall constitute a special and limited obligation of the Interchange District,payable
solely from and to the extent of the Pledged Revenues. The Pledged Revenues are hereby
pledged by the Interchange District to the City for the payment of the Owners'Share. The
Interchange District hereby elects to apply all of the provisions of the Supplemental Act to
this Capital Pledge Agreement and the payment obligations hereunder.
(k) In no event shall the total or annual obligations of the Interchange District
hereunder exceed the maximum amounts permitted under its electoral authority and
applicable law.
Section 2.04..Imposition of Project Mill Levy;Eligible Operational Costs;Formation
Costs.
(a) In order to fund a portion of the Owners' Share and to pay for Eligible
Operational Costs and Formation Costs, the Interchange District agrees to levy on all of
the taxable property in such Interchange District, in addition to all other taxes, direct
annual taxes for collection in each of the years when this Agreement is in effect, in the
amount of the Project Mill Levy. The Pledged Project Mill Levy Revenues shall be
included in the Pledged Revenues and applied as provided herein.
(b) The Interchange District shall provide the City with an itemization of the
Formation Costs incurred by the Interchange District that are to be paid or reimbursed from
revenues generated from the Project Mill Levy, in an amount not exceeding $200,000. The
City shall have the right to review the Formation Costs to confirm that such costs,fees and
expenses qualify as Formation Costs for purposes of this Agreement. Upon receipt of the
net revenues generated from the Project Mill Levy, and after the City's confirmation of
the Formation Costs, the Interchange District may apply such revenues to the payment or
reimbursement of all or any portion of the Formation Costs until such Formation Costs are
paid or reimbursed in full. The Interchange District acknowledges and agrees that it shall
not receive a credit against the Owners'Share to the extent that it applies revenues from the
Project Mill Levy to the payment of all or any portion of the,Formation Costs.,
( c) The Interchange District shall provide the City with a copy of its proposed
budget for the subsequent fiscal year setting forth the amount of administrative and
operating expenses budgeted for the Interchange District for the subsequent fiscal year.If a
budget amendment is required due to circumstances that could not have been reasonably
foreseen at the time the original budget,was adopted, the Interchange District shall provide
the City with a copy of the proposed budget amendment setting forth the amount of
additional administrative and operating expenses anticipated for the applicable year, and
the reason for the increase. The City shall have the right to review the budget and any
subsequent budget amendment to confirm that the amount so budgeted for administrative
and operating expenses is reasonable,and that any amendment to the budget was the result
5
of circumstances that could not have been reasonably foreseen. The Eligible Operational
Costs for any year shall not exceed the amount set forth in the budget and any such budget
amendment, as reviewed and approved by the City. The Interchange District agrees that
any administrative and operating costs incurred by the Interchange District that exceed the
amount so budgeted for any year, including any approved budget amendment, shall not
constitute Eligible Operational Costs for purposes of this Agreement and shall not be paid
or reimbursed from the revenues generated from the Project Mill Levy or any other Pledged
Revenues.
(d) Upon receipt of the net revenues generated from the Project Mill Levy,the
Interchange District may apply such revenues to the payment of Eligible Operational Costs
and any Carryover Costs(as hereinafter defined). In the event that there are not sufficient
revenues generated from the Project Mill Levy in any year to pay the Eligible Operational
Costs, such deficit shall constitute"Carryover Costs"for purposes of this Agreement, and
the next available revenues generated from the Project Mill Levy may be applied first to
the repayment of these Carryover Costs. In the event that there are not sufficient revenues
generated from the Project Mill Levy in any year to pay any outstanding Carryover
Amounts and the Eligible Operational Costs in such year, any such deficit amount shall be
added to the outstanding Carryover Costs. The City acknowledges and agrees that the
Interchange District will receive a credit each year against the Owners' Share in an amount
equal to the Eligible Operating Costs incurred by the Interchange District for such year, as
further set forth in Section 2.03(d)hereof.
(e) This Section 2.04 is hereby declared to be the certificate of the Interchange
District to the Board of County Commissioners of Larimer County indicating the aggregate
amount of taxes to be levied for purposes of this Agreement and the payment obligations
hereunder.
(f) It shall be the duty of the Interchange District annually at the time and in
the manner provided by law for the levying of the Interchange District's taxes, if such
action shall be necessary to effectuate the provisions of this Agreement,to ratify and carry
out the provisions hereof with reference to the Project Mill Levy and collection of the
proceeds thereof, and to require the officers of the Interchange District to cause the
appropriate officials of Larimer County to levy the Project Mill Levy and to extend and
collect such taxes in the manner provided by law, for the purpose of providing funds for
the payment of the Owners' Share promptly as the installments of the same,respectively,
become due. The proceeds of the Pledged Project Mill Levy Revenues, when collected,
shall be applied only to the payment of the Owners' Share due hereunder.
(g) The Project Mill Levy shall be levied, assessed, collected, and enforced at
the time and in the form and manner and with like interest and penalties as other general
taxes in the State of Colorado.
(h) The Interchange District shall pursue all reasonable efforts to collect, or
cause the collection of,delinquent ad valorem property taxes within its boundaries.
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(i) Upon payment in full of the Owners' Share, the Interchange District's
obligation to impose the Project Mill Levy shall terminate.
0) Nothing herein shall be construed to require the Interchange District to
impose an ad valorem property tax levy in excess of the Project Mill Levy. Except as
provided by the Service Plan of the Interchange District,nothing herein shall be construed
to prevent the Interchange District from imposing an ad valorem property_tax levy in excess
of the Project Mill Levy to pay administrative expenses in excess of the Eligible
Operational Costs or for other lawful purposes.
Section 2.05. Imposition of Project Fees. In order to provide additional Pledged
Revenues to fund the Owners' Share,the Interchange District agrees to impose and.collect or cause
the collection of the Project Fees, which Project Fees shall be included in the Pledged Revenues
and applied as provided herein. The Interchange District agrees to take all necessary and proper
steps promptly to adopt, impose and enforce the payment of Project Fees at the time of issuance
of each vertical development permit by the City. For the purpose of administering and facilitating
the collection of Project Fees,the City agrees to promptly notify the Interchange District whenever
application is made for a vertical building permit for structures or other improvements on any of
the Properties,and to collect the Project Fees on behalf of the Interchange District. The City shall
send written notice each month to the Interchange District as to the amount of Project Fees so
collected in such month. The City shall be allowed to retain the Project Fees so collected and shall
credit the Project Fees so collected,without deduction for any collection costs,to the amounts due
to the City hereunder, in accordance with Section 2.03 hereof. The Interchange District shall not
modify,amend or repeal the resolution or resolutions imposing the Project Fees in any manner or
to any extent that would result in a reduction of the rates or amount of Project Fees without the
prior written consent of the City.
Upon payment in full of the Owners' Share,the Interchange District's obligation to impose
the Project Fees shall terminate.
Section 2.06. Collection of PIF Revenues. As provided in the Binding Agreement, the
Owners have caused or will cause to be recorded with respect to the Properties in the Interchange
District the Interchange PIF Covenant, touching, concerning and running with the land, whereby
during the term of this Agreement there are to be collected and paid to the Interchange District the
proceeds derived from the imposition of a retail sales tax PIF at a rate equal to 0.75%, net of any
reasonable administrative fees for collection, on all future retail sales on the Properties that are
also subject to the City's sales taxes under Article III,Chapter 25 of the City Code,which amounts,
when and as received by the Interchange District, shall be included in the Pledged Revenues. The
Interchange PIF revenues shall be collected pursuant to the terms and provisions of the Interchange
PIF Collection Agreement. The City shall have the right to review the Interchange PIF Collection
Agreement to confirm compliance with the terms and provisions of the Binding Agreement and
this Capital Pledge Agreement.
Section 2.07. Payment and Application of Pledged Revenues. On or prior to the last
day of each month, the Interchange District shall remit or cause to be remitted to the City all
Pledged Revenues that it or the PIF Collection Agent received through the last day of the prior
month. Such payment shall be made in lawful money of the United States of America by check
7
mailed or delivered,or by wire transfer,to the City or as otherwise directed by the City. The City
shall acknowledge in writing the receipt of all amounts paid to it by the Interchange District or the
PIF Collection Agent from Pledged Revenues.
The books and records of the Interchange District and the PIF Collection Agent pertaining
to the collection and receipt of the Pledged Revenues shall be open for inspection by the authorized
representatives of the City during business hours upon reasonable notice,
The books and records of the City pertaining to the collection and receipt of the Project
Fees shall be open for inspection by the authorized representatives of the Interchange District
during business hours upon reasonable notice. Such access shall be subject to the provisions of
the Colorado Open Records Act contained in Article 72 of Title 24,C.R.S. In the event of disputes
or litigation between the-Parties hereto, all access and requests for such records shall be made in
compliance with the Colorado Open Records Act.
Section 2.08. Effectuation of Pledge of Security, Current Appropriation. The sums
required to pay the amounts due hereunder are hereby appropriated for that purpose, and said
amounts for each year shall be included in the annual budget and the appropriation measures to be
adopted or passed by the Board of the Interchange District in each year while any of the obligations
herein authorized are outstanding and unpaid. No provisions of any constitution,statute,resolution
or other order or measure enacted after the execution of this Agreement shall in any manner be
construed as limiting or impairing the obligation of the Interchange District under this Agreement
to impose and collect the Project Mill Levy, to impose and collect the Project Fees and to collect
the PIF's.
In addition, and without limiting the generality of the foregoing, the obligations of the
Interchange District to transfer or cause the transfer of funds to the City as provided herein shall
survive any court determination of the invalidity of this Capital Pledge Agreement as a result of a
failure, or alleged failure, of any of the directors of the Interchange District to properly disclose,
pursuant to State of Colorado law, any potential conflicts of interest related hereto in any way,
provided that such disclosure is made on the record of Interchange District's meetings as set forth
in its official minutes.
Section 2.09. Limited Defenses; Specific Performance. It is understood and agreed by
the Interchange District that its obligations hereunder are absolute,irrevocable,and unconditional
except as specifically stated herein, and so long as any obligation of the Interchange District
hereunder remains unfulfilled, any obligations remain outstanding or any costs in connection
therewith remain unpaid, such Interchange District agrees that notwithstanding any fact,
circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim,
estoppel, or other defenses to its payment obligations, or take or fail to take any action which
would delay a payment to the City or impair the Ci'ty's ability to receive payments due hereunder.
Notwithstanding that this Agreement specifically prohibits and limits defenses and claims of the
Interchange District,in the event the Interchange District believes that it has valid defenses,setoffs,
counterclaims, or other claims other than specifically permitted by this Section 2..09, it shall,
nevertheless,make all payments to the City as provided herein,and then may seek to recover such
payments by actions at law or in equity for damages or specific performance,respectively.
8
Section 2.10. Future Exclusion of Property. The Interchange District shall not consent
to the exclusion of any real property from within its boundaries without the prior written consent
of the City Council,which consent shall be evidenced by resolution.
Section 2.11. Additional Covenants of the Interchange District. The Interchange
District additionally covenants as follows:
(a) The Interchange District will not issue or incur bonds, notes, or other
obligations payable in whole or in part from, or constituting a lien upon, the general ad
valorem taxes of such Interchange District (other than general ad valorem taxes imposed
for the purpose of funding operation,maintenance and administrative costs incurred by the
Interchange District, provided that such taxes are not imposed in excess of the amount
permitted under its Service Plan after first taking into account the imposition of the Project
Mill Levy), Project Fees or Interchange PIF's included in Pledged Revenues, other than
obligations subject to annual appropriation and which are expressly subject to the
obligations of the Interchange District hereunder, without the prior written consent of the
City.
(b) At least once a year in the time and manner provided by law,the Interchange
District will cause an audit to be performed of the financial records relating to its revenues
and expenditures. In addition,at least once a year in the time and manner provided by law,
the Interchange District will cause a budget to be prepared and adopted. Copies of the
budget and the audit will be filed and recorded in the places,time,and manner provided by
law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Interchange District. The
Interchange District hereby makes the following representations and warranties with respect to
itself:
(a) The Interchange District is a quasi-municipal corporation and political
subdivision duly organized and validly existing under the laws of the State.
(b) The Interchange District has all requisite corporate power and authority to
execute,deliver, and to perform its obligations under this Capital Pledge Agreement. The
Interchange District's execution, delivery, and performance of this Capital Pledge
Agreement has been duly authorized by all necessary action. The authorization for
issuance of debt, fiscal year spending,revenue collections and other constitutional matters
requiring voter approval by the Interchange District for purposes of this Capital Pledge
Agreement was approved at the Election in accordance with law and pursuant to due notice.
The performance of the terms of this Capital Pledge Agreement by the Interchange District
requires no further electoral approval.
(c) The Interchange District is not in violation of any of the applicable
provisions of law or any order of any court having jurisdiction in the matter, which
9
violation could reasonably be expected to materially adversely affect the ability of the
Interchange District to perform its obligations hereunder. The execution, delivery and
performance by the Interchange District of this Capital Pledge Agreement (i) will not
violate any provision of any applicable law or regulation or of any order, writ,judgment,
or decree of any court, arbitrator, or governmental authority, (ii) will not violate any
provision of any document or agreement constituting,regulating,or otherwise affecting the
operations or activities of the Interchange District in a manner that could reasonably be
expected to result in a material adverse effect upon its financial condition or ability to meet
its obligations when due, and (iii) will not violate any provision of, constitute a default
under,or result in the creation or imposition of any lien,mortgage,pledge,charge, security
interest, or encumbrance of any kind on any of the revenues or other assets of the
Interchange District pursuant to the provisions of any mortgage, indenture, contract,
agreement, or other undertaking to which the Interchange District is a party or which
purports to be binding upon the Interchange District or upon any of its revenues or other
assets which could reasonably be expected to result in a material adverse effect upon its
financial condition or ability to meet its obligations when due.
(d) The Interchange District has obtained all consents and approvals of,and has
made all registrations and declarations with any governmental authority or regulatory body
required for the execution, delivery, and performance by the Interchange District of this
Capital Pledge Agreement.
(c) There is no action, suit, inquiry, investigation, or proceeding to which the
Interchange District is a party, at law or in equity, before or by any court, arbitrator,
governmental or other board,body, or official which is pending in connection with any of
the transactions contemplated by this Capital Pledge Agreement nor,to the best knowledge
of the Interchange District is there any basis therefor, wherein an unfavorable decision,
ruling, or finding could reasonably be expected to have a material adverse effect on the
validity or enforceability of,or the authority or ability of the Interchange District to perform
its obligations under,this Capital Pledge Agreement.
(f) This Capital Pledge Agreement constitutes the legal, valid, and binding
obligation of the Interchange District, enforceable against the Interchange District in
accordance with its terms (except as such enforceability may be limited by bankruptcy,
moratorium, or other similar laws affecting creditors' rights generally and provided that
the application of equitable remedies is subject to the application of equitable principles).
ARTICLE IV
DEFAULT AND REMEDIES
Section 4..01. Events of Default. The occurrence or existence of any one or more of the
following events shall be an"Event of Default"hereunder, and there shall be no default or Event
of Default hereunder except as provided in this Section:
(a) the Interchange District fails or refuses to impose the Project Mill Levy, or
the Project Fees, or to enforce its rights in connection with the Interchange PIF's, or to
10
remit or cause the remittance of the Pledged Revenues as required by the terms of this
Capital Pledge Agreement;
(b) any representation or warranty made by either Party in this Capital Pledge
Agreement proves to have been untrue or incomplete in any material respect when made;
(c) either party fails in the performance of any other of its covenants in this
Capital Pledge Agreement, and such failure continues for 60 days after written notice
specifying such default and requiring the same to be remedied is given to either of the
Parties hereto;
(d). the Interchange District commences proceedings for dissolution or
consolidation with another metropolitan district during the term of this Agreement; or
(e) (i) the Interchange District shall commence any case, proceeding, or other
action (A) under any existing or future law of any jurisdiction relating to bankruptcy,
.insolvency,reorganization, or relief of debtors, seeking to have an order for relief entered
with respect to it or seeking to adjudicate it insolvent or bankrupt or seeking reorganization,
arrangement,adjustment,winding up,liquidation,dissolution, composition;or other relief
with respect to it or its debts, or(B) seeking appointment of a receiver,trustee, custodian,
or other similar official for itself or for any substantial part of its property,or shall make a
general assignment for the benefit of its creditors; or(ii)there shall be commenced against
it any case, proceeding, or other action of a nature referred to in clause (i) and the same
shall remain undismissed within 90 days following the date of filing; or(iii)there shall be
commenced against it any case,proceeding, or other action seeking issuance of a warrant
of attachment, execution, distraint, or similar process against all or any substantial part of
its property which results in the entry of an order for any such relief which shall not have
been vacated,discharged, stayed,or bonded pending appeal within 90 days from the entry
thereof, or (iv) it shall take action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clauses (i), (ii) or (iii) above; or (v)it
shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due.
Section 4.02. Remedies For Events of Default. Subject to Section 2.09 hereof,upon the
occurrence and continuation of an Event of Default, either Party may proceed to protect and
enforce its rights against the Party causing the Event of Default by mandamus or such other suit,
action,or special proceedings in equity or at law,in any court of competent jurisdiction,including,
Without limitation, an action for specific performance, provided that no special or consequential
damages shall be awarded in connection with any Event of Default hereunder. In the event of any
litigation or other proceeding to enforce any of the terms, covenants or conditions hereof, the
prevailing party in such litigation or other proceeding shall obtain,as part of its judgment or award,
its reasonable attorneys' fees and costs..
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ARTICLE V
AUSCELLANEOUS
Section 5.01. Pledge of Revenue. The creation, perfection, enforcement, and priority of
the pledge of the Pledged Revenues to secure or pay the payment obligations of the Interchange
District shall be governed by Section 11-57-208 of the Supplemental Act and this Capital Pledge
Agreement. The Pledged Revenues shall immediately be subject to the lien of such pledge without
any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and
enforceable as against all persons having claims of any kind in tort, contract, or otherwise against
any of the Interchange District irrespective of whether such persons have notice of such liens.
Section 5.02. No Recourse Against Officers, Agents or Owners. Pursuant to Section
11-57-209 of the Supplemental Act, if a member of the Board of Directors of the Interchange
District, or any officer or agent thereof, acts in good faith, no civil recourse shall be available
against such member, officer,or agent for payment of the payment obligations of the Interchange
District. Such recourse shall not available either directly or indirectly through the Board or the
Interchange District, or otherwise, whether by virtue of any constitution, statute, rule of law,
enforcement of penalty, or otherwise. By the acceptance of this Capital Pledge Agreement and as
a part of the consideration hereof, the City specifically waives any such recourse. In addition to
the immunities provided by the Supplemental Act and this Section to such Board members,officers
or agents in their official capacities, there shall not be personal recourse to any Owner under any
provision of this Agreement.
Section 5.03. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental
Act, it is hereby recited that this Capital Pledge Agreement and each of the obligations of the
Interchange District hereunder are issued pursuant to the Supplemental Act, and such recital is
conclusive evidence of the validity and the regularity of this Capital Pledge Agreement and such
obligations after their delivery for value.The Interchange District hereby acknowledges the receipt
of value for the execution and delivery of this Capital Pledge Agreement and the issuance of the
obligations evidenced hereby, in the form of the City's commitment to finance the Project in
accordance with the terms and provisions of the Binding Agreement and this Capital Pledge
Agreement,other good and valuable consideration.
Section 5.04. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or
equitable action brought with respect to any legislative acts or proceedings in connection with the
authorization, execution, or delivery of this Capital Pledge Agreement shall be commenced more
than thirty days after the authorization of this Capital Pledge Agreement.
Section 5.05. Notices. Except as otherwise provided herein, all notices or payments
required to be given under this Agreement shall be in writing and shall be hand delivered or sent
by certified mail,return receipt requested, or air freight,to the following addresses:
12
I-25/ProspectInterchange
Metropolitan District:
With a copy to: White Bear Ankele Tanaka& Waldron
c/o Robert G. Rogers, Esq.
2154 E. Commons Ave, Suite 2000
Centennial,CO 80122
303-858-1800
rrogers@wbapc.com
City of Fort Collins: Mike Beckstead
Chief Financial Officer
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80524
970-221-6795
mbeckstead@fcgov.com
With a copy to: John Duval
Deputy City Attorney
300 LaPorte Avenue
PO Box 580
Fort Collins, CO 80524
970-416-2488
jduval@fcgov.com
All notices or documents delivered or required to be delivered under the provisions of this
Agreement shall be deemed received one day after hand delivery or three days after mailing. Any
party by written notice so provided may change the address to which future notices shall be sent,
and may provide the manner in which notices may be given, including without limitation,
electronic mail.
Section 5.06. Findings and Determinations Relative to Service Plan and Electoral
Debt Limitations, The Board of Directors of the Interchange District has made, and by approval
of this Capital Pledge Agreement hereby makes,the following findings and determinations relative
to the limitations on indebtedness set forth in its Service Plan and applicable electoral
authorization:
(a) Pursuant to its Service Plan, Interchange District is permitted to issue
"Debt" (as defined therein) in the maximum principal amount of $ . The
maximum principal amount, total repayment cost and annual repayment cost of the Debt
of the Interchange District approved at the Election were $ , $---,
and$ ,respectively,and the payment obligations of the Interchange District do
13
not exceed any of such approved amounts. $ of such principal authorization
is allocated to the payment obligations evidenced by this Capital Pledge Agreement.
(b) Prior to the execution and delivery of this Capital Pledge Agreement the
Interchange District had no Debt outstanding.
(c) As of the date of its execution and delivery this Capital Pledge Agreement
represents the sole Debt of the Interchange District.
Section 5.07. General.
(a) This Capital Pledge Agreement and the Binding Agreement constitutes the
final,complete, and exclusive statement of the terms of the agreement between the Parties
pertaining to the subject matter of this Capital Pledge Agreement and the Binding
Agreement and supersede all prior and contemporaneous understandings or agreements of
the parties, including without limitation, the MOU. This Capital Pledge Agreement may
not be contradicted by evidence of any prior or contemporaneous statements or agreements.
No Party has been induced to enter into this Capital Pledge Agreement by,nor is any party
relying on,any representation,understanding,agreement,commitment,or warranty except
those expressly set forth in this Capital Pledge Agreement.
(b) If any term or provision of this Capital Pledge Agreement is determined to
be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal,
unenforceable, or invalid provisions or part thereof shall be stricken from this Capital
Pledge Agreement, and such provision shall not affect the legality, enforceability, or
validity of the remainder of this Capital Pledge Agreement. If any provision or part thereof
of this Capital Pledge Agreement is stricken in accordance with the provisions hereof,then
such stricken provision shall be replaced, to the extent possible, with a legal, enforceable,
and valid provision that is as similar in tenor to the stricken provision as is legally possible.
(c) It is intended that there be no third-party beneficiaries of this Capital Pledge
Agreement, other than the Owners. Nothing contained herein, expressed or implied, is
intended to give to any person, other than the Owners, any claim, remedy, or right under
or pursuant hereto, and any agreement, condition, covenant, or term contained herein
required to be observed or performed by or on behalf of any Party hereto shall be for the
sole and exclusive benefit of the other Party, and the Owners.
(d) This Capital Pledge Agreement may not be assigned or transferred by any
Party without the prior written consent of the other Party. Any such assignment or transfer
without the required prior written consent shall be deemed null and void and of no effect.
(e) This Capital Pledge Agreement shall be governed by and construed under
the applicable laws of the State of Colorado. Venue for any judicial action to interpret or
enforce this Capital Pledge Agreement shall be in Larimer County District Court of the
Eighth Judicial District for the State of Colorado..
14
(f) This Capital Pledge Agreement may be amended or supplemented by the
Parties, but any such amendment or supplement must be in writing and must be executed
by both Parties.
(g) If the date for making any payment or performing any action hereunder shall
be a legal holiday or a day on which banks in Denver,Colorado are authorized or required
by law to remain closed, such payment may be made or act performed on the next
succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado
are authorized or required by law to remain closed.
(h) Each Party has participated fully in the review and revision of this Capital
Pledge Agreement. Any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not apply in interpreting this Capital Pledge
Agreement. The language in this Capital Pledge Agreement shall be interpreted as to its
fair meaning and not strictly for or against any Party.
(i) This Capital Pledge Agreement may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same
instrument.
(j) The Interchange District and the City shall have the right to access and
review each other's records and accounts, at reasonable times during regular office hours,
for purposes of determining compliance with the terms of this Agreement. Such access
shall be subject to the provisions of the Colorado Open Records Act contained in Article
72 of Title 24, C.R.S. In the event of disputes or litigation between the Parties hereto, all
access and requests for such records shall be made in compliance with the Colorado Open
Records Act.
(k) The Parties each covenant that they will do, execute, acknowledge, and
deliver or cause to be done,executed,acknowledged,and delivered,such acts,instruments,
and transfers as may reasonably be required for the performance of their obligations
hereunder.
0) This Agreement shall be binding upon and inure to the benefit of the Parties
and their respective successors and assigns.
Section 5.08. Effective Date and Termination Date. This Agreement shall become
effective on 2018',and shall remain in effect until the payment in full of the Owners'
Share.
15
IN WITNESS WHEREOF,the Interchange District and the City have executed this Capital
Pledge Agreement as of the day and year first above written.
INTERCHANGE DISTRICT
By:
Title:
ATTEST:
Secretary
CITY OF FORT COLLINS
By:
Mayor
ATTEST:
City Clerk
16
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