CONSTRUCTION, USE, AND MAINTENANCE (“Agreement”) is entered into as of this
day of November, 2019, by and among CIELO METROPOLITAN DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado (the “Cielo MD”), FORESTAR (USA) REAL ESTATE GROUP INC. and/or assigns (the “Developer”) and DOUGLAS COUNTY SCHOOL DISTRICT, a Colorado school district (“DCSD”) (collectively, the “Parties”).
A. Cielo MD is a special district organized pursuant to Section 32-1-101, C.R.S. et
B. Forestar (USA) Real Estate Group, Inc. (the “Developer”) owns certain property
located in unincorporated Douglas County (the “Property”), which Property is depicted on
Exhibit Aattached hereto and made a part hereof.
C. The Property is within the boundaries of the Cielo MD.
D. The Developer received approval for a Final Plat for the Property, Case SB 2016- 040, for a 343-lot residential subdivision in Douglas County Colorado (“Cielo”). As part of the project, the Developer is required to dedicate 7.29 acres of real property or provide cash-in-lieu of dedication for the purpose of a school land dedication. The Developer has agreed to contribute a voluntary Capital Mitigation fee in the amount of $2,654 per unit or a total of
E. An associate of the Developer owns and has received approval of a Final Plat for the adjacent property to be known as Stone Creek Ranch Filing No. 1 (“SCR”) Case SB 2016- 016, for a 329-lot residential subdivision in Douglas County Colorado, which adjacent property is within the Stone Creek Metropolitan District (“Stone Creek MD”). As part of the SCR approval, SCR is required to dedicate 6.984 acres of real property or provide cash-in-lieu of dedication for the purpose of a school land dedication. SCR has agreed to contribute a voluntary Capital Mitigation fee in the amount of $2,671 per unit or a total of $878,759.
F. To satisfy the school land dedication requirements for Cielo and SCR, the Developer dedicated 22.482 acres of real property to Douglas County (the “County”) for DCSD purposes (the “School Site”).
G. DCSD anticipates the completion of the School Site no earlier than 2029.
H. The Developer desires to design and construct a public park and related improvements (the “School Park”) which will benefit the School Site and the public on real property located within the Property and adjacent to the School Site, and more particularly described on Exhibit A(collectively with the School Park, the “School Park Facilities”) the
cost of which would offset Cielo and SCR’s voluntary capital mitigation fees pursuant to the respective Project approval requirements.
I. Pursuant to the authority granted to the Cielo MD by its Service Plan, as approved by the County on September 8, 2016, as it may be amended from time to time (the “Service Plan”), Cielo MD intends to acquire certain public improvements (the “Improvements”) to benefit the property within the boundaries of Cielo MD, including but not limited to the School Park Facilities.
J. Cielo MD agrees that the School Park Facilities will benefit the property owners within Cielo MD.
K. Cielo MD and Developer entered into that certain Facilities Funding and Acquisition Agreement effective as of November 30, 2016 (the “FFAA”), whereby Cielo MD and the Developer set forth the rights, obligations, and procedures for the acquisition of the Improvements, which shall apply to Cielo MD’s acquisition of the School Park Facilities.
L. The Developer and DCSD entered into that certain Memorandum of Understanding dated August 30, 2017 (the “MOU”), whereby the Developer and DCSD expressed their intent to negotiate and enter into this Agreement to efficiently provide for the construction and maintenance of the School Park Facilities.
M. The Parties desire to enter into this Agreement to establish each Party’s responsibility, and the timing of same, for the design, construction, ownership, operation, and maintenance of the School Park Facilities, and the funding thereof.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, the sufficiency of which are mutually acknowledged, the Parties hereto agree as follows:
1. Acknowledgment and Incorporation of Recitals. The foregoing recitals are hereby acknowledged by the Parties to be true and correct and are incorporated into this Agreement.
2. Design Commitment for the School Park Facilities. The elements of the design of the School Park Facilities shall include a general play field, a ball field, a gaga pit, a hard surface play area, a gazebo, one-half of a parking lot and a trail as shown on the Park Plan attached hereto as Exhibit B.
3. Construction Commitment for the School Park Facilities.
(a) No later than December 31, 2025, or upon such other date agreed to by the Parties in writing, the Developer and/or Cielo MD shall complete, or shall cause to be completed
the School Park Facilities in a good and workmanlike manner and in accordance with applicable law.
(b) The funding for the School Park Facilities shall be secured through a separate Subdivision Improvement Agreement (“SIA”) between the County and the Developer and/or Cielo MD.
4. Cost of Construction of the School Park Facilities and Eligible Offsets andCredits. Developer shall pay one hundred percent (100%) of the design and construction costs of the School Park Facilities (the “Costs”). The Developer and DCSD have previously agreed that the value of such Costs totals $524,101. The Costs shall offset Cielo and SCR’s voluntary capital mitigation fees after land dedication credits for both projects as outlined below:
(i) Developer Contributions
School Site Dedication
(22.482 acres @ 95,445/acre)
School Park Facilities
Detention/Water Quality Land and
TOTAL ELIGIBLE CREDITS
Cielo School Site
(7.29 acres @ $95,544/acre)
SCR School Site
(6.984 acres @ $83,842/acre)
Cielo Capital Mitigation Fees
(343 units @ $2,654/unit)
SCR Capital Mitigation Fees
(329 units @ $2,671/unit)
TOTAL ELIGIBLE OFFSETS
The Parties hereby agree pursuant to this Section 4 that upon application of all offsets against the eligible credits as described herein, there shall be zero (-0-) dollars due to DCSD by Cielo or SCR for Land Dedication Fees or Capital Mitigation Fees. Furthermore, Cielo MD acknowledges that Developer will be receiving payments from homebuilders in both Cielo and SCR in an amount equal to all of the respective voluntary Capital Mitigation Fees due for each project to offset the Costs and excess land dedication.
5. Operations and Maintenance of the School Park Facilities.
(a) Developer shall be responsible for the operation and maintenance of the School Park Facilities until acceptance of same by Cielo MD. Upon acceptance of the School
Park Facilities by Cielo MD, all ongoing operation and maintenance of the School Park Facilities shall be the responsibility of Cielo MD (the “O&M Services”). Cielo MD agrees that it shall, in good faith, own, operate, maintain, and repair the School Park Facilities in a good and workmanlike manner, and in compliance and accordance with applicable law.
(b) To the extent permitted by law, Cielo MD may contract with one or more other local governments or private vendors to execute its O&M Services responsibilities; provided, however, that Cielo MD shall be responsible for any such local government or private vendor’s noncompliance with this Agreement. In performance of the O&M Services; Cielo MD agrees to maintain or cause the other local governments or private vendors performing such services to maintain insurance as set forth in Section 12 below.
6. Administration and Cost Sharing of Capital Replacement.
(a) Upon the earlier of (i) DCSD’s receipt of a certificate of occupancy for the School Site (the “Certificate of Occupancy”) or (ii) upon agreement between DCSD and Cielo MD for the use of the School Park Facilities by DCSD (“Early Use Agreement”), and subject to receipt of reasonable supporting documentation and receipts, DCSD shall pay Cielo MD for one- half (1/2) of all of the actual and reasonable costs incurred in negotiating and performing the capital replacement of the School Park Facilities hereunder (the “Capital Replacement Services”, and together with the O&M Services, the “Services”).
(b) No later than November 1 of each year subsequent to the issuance of the Certificate of Occupancy or execution of the Early Use Agreement, Cielo MD shall prepare and submit to DCSD a Capital Improvement Plan (“CIP”). The CIP shall describe the anticipated costs associated with the necessary capital replacement of the School Park Facilities (the “Capital Replacement Costs”) for the following twelve (12) month period, either on a time and materials basis or other reasonable method.
(c) DCSD shall have ninety (90) days following receipt of a CIP to review and approve same. If DCSD does not reject the CIP within said ninety (90) days, the same shall be deemed approved subject to Section 7 below.
(d) Cielo MD agrees to comply with applicable public procurement laws prior entering into contracts for the performance of the capital replacement of the School Park Facilities, which contracts shall be commercially reasonable and, unless otherwise agreed to by the Parties, less than or equal to the estimated Capital Replacement Costs set forth in the applicable CIP.
(e) If DCSD rejects a CIP for any particular Capital Replacement Cost, Cielo MD and DCSD shall attempt to resolve the same pursuant to the process contained in Section 11 below. If after such Dispute Resolution process the Parties are still unable to agree upon the same, then Cielo MD, at its sole option, shall have the right to terminate the applicable Capital Replacement Services whereupon Cielo MD shall have no further liability or obligation with respect to such Capital Replacement Costs.
(f) Cielo MD shall cause the capital replacement of the School Park Facilities to be performed in a good and workmanlike manner, in accordance with applicable law, and in accordance with each CIP.
(g) Cielo MD shall invoice DCSD for DCSD’s share of the Capital Replacement Costs on a monthly basis. Cielo MD shall provide supporting documentation for each invoice. DCSD shall pay undisputed amounts within thirty (30) days of its receipt of each invoice.
(h) In performance of satisfying the capital replacement needs of the School Park Facilities, Cielo MD agrees to maintain or cause the contractors performing such replacement to maintain insurance as set forth in Section 12 below.
7. Appropriation. Pursuant to Section 29-1-110, C.R.S., any financial obligations of Cielo MD and DCSD contained herein that are payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available on an annual basis.
8. Use/Scheduling of the School Park Facilities.
(a) The School Park Facilities shall be a public park facility for the benefit of the residents and taxpayers of Cielo MD, DCSD, and the general public.
(b) Upon acquisition of the School Park Facilities by Cielo MD and either (i) the receipt by DCSD of the Certificate of Occupancy or; (ii) full execution of the Early Use Agreement, Cielo MD and DCSD shall mutually agree on Rules and Regulations governing the use and scheduling of the general play field, ball field, multi-use field, gaga pit, and hard surface play area components of the School Park Facilities with the understanding that DCSD shall administer and manage the use and scheduling of the aforementioned components of the School Park Facilities during school hours and for scheduled school events.
(a) Upon acquisition of the School Park Facilities by Cielo MD, Cielo MD shall procure and maintain adequate hazard and liability insurance for claims which may arise during the use of the School Park Facilities. Such coverage shall be procured from insurers authorized to do business in the State of Colorado.
(b) Upon request by DCSD, Cielo MD shall provide DCSD with certificates evidencing such insurance.
(c) Effective Date and Term. This Agreement shall be effective upon the Effective Date, as defined herein, and shall expire on December 31, 2049. Notwithstanding the foregoing, this Agreement shall automatically renew on January 1st of each succeeding year for additional five (5) year periods, unless cancellation provisions are agreed to by both Parties. The Parties agree that subsequent to issuance of the Certificate of Occupancy or the Early Use Agreement, the Parties shall meet upon a request by any Party, for the purpose of reviewing the prior year’s usage to enable the Parties to discuss and consider solutions to problems or conflicts,
if any, arising out of the use and scheduling of the School Park Facilities. This Agreement shall represent the valid, binding and legally enforceable obligations of each of the Parties.
10. Default/Self-Help Remedy. In the event Cielo MD defaults in providing the O&M Services and/or the Capital Replacement Services hereunder, and such default continues for more than thirty (30) days following written notice of DCSD to Cielo MD of the same, DCSD shall have the right, but not the obligation, to perform the same, in which case DCSD shall submit an invoice to Cielo MD, which Cielo MD shall pay to DSCD within thirty (30) days of receipt of same. Notwithstanding the foregoing, in the event such default results in an immediate public safety or property damage threat, then no prior notice shall be required. In addition, in the event either Party defaults hereunder and such default remains uncured for a period of thirty (30) days or more following written notice thereof, the non-defaulting Party shall have all remedies available to it at law or in equity, as limited herein, including but not limited to specific performance and actual damages. No Party hereto shall be entitled to consequential or punitive damages hereunder. In the event of any litigation, arbitration or other proceeding to enforce the terms, covenants or conditions hereof, the prevailing party in such litigation, arbitration or other proceeding shall be awarded as part of its judgment or award its reasonable attorneys’ fees.
11. Informal Dispute Resolution.
(a) Dispute Notice. If either Party delivers to the other Party a notice (the “Dispute Notice”) that it wishes to proceed under this Section, the Parties shall meet within ten
(10) days thereafter to attempt to resolve their differences. If the Parties cannot resolve their differences, either Party may submit such differences to a panel (the “Panel”) consisting of one representative appointed by each Party and a third independent member mutually selected by those two representatives. The third independent member shall be a professional with at least ten
(10) years’ experience in managing and maintaining public improvements of the nature set forth herein, which may include an engineer, and “independent” shall be construed to mean the absence of any objective link (e.g., a prior or current personal or professional relationship) between said neutral third member and either party so that said neutral third member is effectively impartial by not favoring either Party over the other or interested in the ultimate outcome of the dispute. If the Parties are unable to agree on the independent third member, the Parties shall request that such third member be selected by the real estate panel of the American Arbitration Association.
(b) Panel. In the event that either Party so elects, both Parties shall proceed in accordance with this Section 12(b), and neither Party may proceed with any other remedies at law, equity or as specifically contemplated under this Agreement until the process set forth in this Section has been completed. The Panel shall be selected within ten (10) days after either party notifies the other Party of its determination that differences cannot be resolved. The panel shall meet and propose a resolution of the Parties’ dispute not later than forty-five (45) days after all Panel members have been selected. Proceedings of the panel shall be informal, without hearings or formal submissions, and the Panel shall have no power to impose any resolution and its decisions shall not be binding on the Parties. The Parties shall review the Panel’s proposed resolution and shall meet at least one time after issuance of the proposed resolution to seek to resolve their differences based on such resolution. If the Parties are unable to resolve their
differences after such meeting, the Parties may proceed to invoke any other remedies at law or in equity or as set forth in Section 11 above.
12. Insurance. Cielo MD shall maintain appropriate insurance limits and coverage related to the provision of Services as set forth in Exhibit C, attached hereto and incorporated herein by this reference, and Cielo MD shall also require all service contractors to meet the same minimum insurance requirements. Cielo MD will add DCSD as an additional insured on its insurance policy for these purposes, and will require all service contractors for the Services to do the same. Any increase in the limits provided in the Colorado Governmental Immunity Act, Section 24-10-101 et seq., C.R.S., shall trigger an automatic increase in the insurance limits set out in Exhibit Cso that the minimum insurance coverage provided to DCSD shall not be less than the maximum amount to be recovered for any single occurrence.
13. Certification of Compliance with Illegal Alien Statute. By its execution hereof, Cielo MD confirms that it shall require all contractors providing Services for the School Park Facilities to comply with the provisions of C.R.S. § 8-17.5-102(1), and to certify that such contractor does not knowingly employ or contract with an illegal alien who will perform the Services, and that said contractor will participate in the E-Verify Program or Department Program (as defined in C.R.S. §§ 8-17.5-101(3.3) and (3.7)) in order to confirm the employment eligibility of all employees who are newly hired to perform the Services.
14. Modification; Amendment. This Agreement may be amended, in whole or in part, only by written instrument executed by the Parties.
15. Integration. This Agreement constitutes the entire agreement between the Parties with respect to the matters addressed herein. All prior discussions and negotiations regarding the subject matter hereof are merged herein.
16. Severability. If any covenant, term, condition, or provision under this Agreement shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability of such covenant, term, condition, or provision shall not affect any other provision contained herein, the intention being that such provisions are severable.
17. Governing Law and Jurisdiction. This Agreement shall be governed and construed under the laws of the State of Colorado. Venue for any legal action relating to this Agreement shall be exclusive to the State District Court in and for the County of Douglas, Colorado.
18. Paragraph Headings. Paragraph headings are inserted for convenience of reference only.
19. Parties Interested Herein. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon, or to give to, any person other than the Parties any right, remedy, or claim under or by reason of this Agreement or any covenants, terms, conditions, or provisions thereof, and all the covenants, terms, conditions, and provisions in this Agreement by and on behalf of the Parties shall be for the sole and exclusive benefit of the Parties.
20. Notices. All notices, demands, requests or other communications to be sent by one Party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of same in person to the addressee or by courier delivery via ` or other nationally recognized overnight air courier service, by electronically- confirmed email transmission, or by depositing same in the United States mail, postage prepaid, addressed as follows:
To Cielo MD: Cielo Metropolitan District c/o McGeady Becher P.C. 450 E. 17th Avenue, Suite 400
Denver, CO 80203
Phone: (303) 592-4380
Email: email@example.com Attn: Elisabeth A. Cortese
With a Copy To:
McGeady Becher P.C.
450 E. 17th Avenue, Suite 400
Denver, CO 80203
Phone: (303) 592-4380
Email: firstname.lastname@example.org Attn: Elisabeth A. Cortese
To Developer: Forestar (USA) Real Estate Group Inc.
10700 Pecan Park Blvd., Suite 150
Austin, Texas 78750
Email: email@example.com Attention: Tom Burleson
With a Copy To: Forestar Group Inc.
10700 Pecan Park Blvd., Suite 150
Austin, Texas 78750
Email: MattStark@forestargroup.com Attention: Matt Stark
To DCSD: Douglas County School District 620 Wilcox St.
All notices, demands, requests or other communications shall be effective upon such personal delivery or one (1) business day after being deposited with FedEx or other nationally recognized overnight air courier service, upon electronic confirmation of email transmission, or three (3) business days after deposit in the United States mail. By giving the other Party hereto at least ten (10) days’ written notice thereof in accordance with the provisions hereof, each of the Parties shall have the right from time to time to change its address.
21. Instruments of Further Assurance. Each Party covenants it 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.
22. Compliance with Law. This Agreement is intended to be performed in accordance with and only to the extent permitted by all applicable laws, ordinances, rules, and regulations of the jurisdiction in which the Agreement is performed.
23. Non-Waiver. No waiver of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provision of this Agreement, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided herein, nor shall the waiver of any default hereunder be deemed to be a waiver of any subsequent default hereunder. Notwithstanding any provision to the contrary in this Agreement, no term or condition of this Agreement shall be construed or interpreted as a waiver, either expressed or implied, of any of the immunities, rights, benefits or protection provided to Cielo MD under the Colorado Governmental Immunity Act.
24. Inurement. This Agreement shall inure to and be binding on the heirs, executors, administrator, successors, and permitted assigns of the Parties hereto.
25. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original and all of which shall constitute one and the same document.
26. Conflicts. If any term or provision(s) in any Exhibit attached as part of this Agreement conflicts with any term or provision(s) in the body of this Agreement, the term or provision(s) contained in the body of this Agreement shall control.
27. Assignment. The Parties to this Agreement shall not assign their rights or obligations hereunder, in whole or in part, without the written consent of the other Parties; provided, however, that Developer may assign its rights and obligations to Cielo MD upon thirty
(30) days prior written notice to DCSD.
IN WITNESS WHEREOF, this Agreement is executed by the Parties hereto as of the date first written above.
CIELO METROPOLITAN DISTRICT
FORESTAR (USA) REAL ESTATE GROUP
INC., a Delaware corporation
By: Name: Its:
DOUGLAS COUNTY SCHOOL DISTRICT RE-1
By David Ray, President
By Krista Holtzmann, Secretary
1. Insurance Requirements. Cielo MD shall procure, and shall cause any service contractors to procure, the insurance coverages set forth below, which insurance shall be placed with insurance companies rated at least “A:XIII” by A.M. Best Company.
(a) Liability Insurance Coverage.
(i) Workers’ Compensation Insurance. Cielo MD shall cause its service contractors to provide a Workers’ Compensation Insurance Policy in form and substance reasonably acceptable to the Cielo MD and in an amount not less than the statutory benefits, including Employer’s Liability Insurance with limits of liability of not less than (i) $500,000 for bodily injury by accident, each accident; (ii) $500,000 for bodily injury by disease, each employee; and (iii) $500,000 aggregate liability for disease. The Workers’ Compensation Insurance Policy, or an endorsement to such policy, must include a waiver of subrogation in favor of Cielo MD.
(ii) Commercial General Liability Insurance. A Commercial General Liability Insurance Policy written on an occurrence basis, in form and substance reasonably acceptable to Cielo MD, which policy shall include, without limitation, Cielo MD and DCSD as additional insureds, a waiver of subrogation endorsement in favor of Cielo MD and DCSD, cross liability and severability of interest endorsements, endorsements providing that the coverage afforded by the insurance policy or policies is primary and non-contributing with any other insurance maintained by or available to Cielo MD, and appropriate language providing the following coverages: Premises and Operations Liability; Personal Injury Liability; Broad Form Property Damage Liability; Contractual Liability supporting the service contractor’s indemnification agreements in favor of Cielo MD and DCSD; Completed Operations and Products Liability; and Independent Contractor’s Protective Liability. The Commercial General Liability Insurance Policy must be written with a combined single limit of liability of not less than $1,000,000 for each occurrence of bodily injury and/or property damage and an annual aggregate of liability of not less than $2,000,000 for bodily injury and/or property damage, and an annual aggregate of liability of not less than $2,000,000 for Completed Operations and Products Liability.
(iii) Automobile Liability Insurance. An Automobile Liability Insurance Policy written on a per accident basis, in form and substance reasonably acceptable to Cielo MD. The Automobile Liability Insurance Policy must provide coverage for all owned, hired, rented and nonowned automobiles, and must include uninsured motorist coverages. The Automobile Liability Insurance Policy must be written with a combined single limit of liability of not less than $1,000,000 for each accident for bodily injury and/or property damage.
(iv) Excess Liability Insurance. An Excess Liability Insurance Policy written in excess of the coverages provided by the insurance policies described in the preceding sections in form and substance reasonably acceptable to Cielo MD, which policy will include Cielo MD and DCSD as additional insureds. The Excess Liability Insurance Policy must be written with a combined single limit of not less than $1,000,000 for each occurrence of bodily injury/or property damage and annual aggregate.
The School Park Improvements shall consist of those improvements as shown on the attached pages L-2, L-3, L-4, L-13, L-14 and L-15 of the Cielo Landscape and Irrigation Construction Plans, as prepared by Tim Dunn Design, LLC.
The related improvements that will benefit the School Site are shown on the Cielo Subdivision Filing 1 Plat, recorded in the real property records of Douglas County Colorado at Reception No. 2017062180 on September 13, 2017, which improvements include streets, utility lines, and detention/water quality improvements.