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CFFF Participant Agreement

SCHOOL DISTRICT 27J
CAPITAL FACILITY FEE FOUNDATION
PARTICIPANT AGREEMENT

THIS PARTICIPANT AGREEMENT

This PARTICIPANT AGREEMENT (the "Agreement") is made and entered into as of this __ day of ___________, 20___, by and among the School District 27J Capital Facility Fee Foundation, a Colorado nonprofit corporation (the “Foundation”), Brighton Public School District 27J, a Colorado public school district (the “District”), and _________________________, a Colorado _______________, (the "Participant").

RECITALS

WHEREAS, the District is a Colorado school district organized and existing for the purpose of delivering school facilities, programs, and services within its boundaries in Adams and Weld Counties; and

WHEREAS, Participant is engaged in or expects to be engaged in the construction of Residential Units (as hereinafter defined) within the Brighton School District 27J, Adams and Weld County, Colorado (the “District”), and specifically with regard to the property described in Exhibit “A,” attached hereto and incorporated herein (the “Property”), which will necessitate the construction or expansion of school facilities; and

WHEREAS, Participant is either the record owner of the Property as of the date of this Agreement, or Participant intends to acquire the Property in connection with certain pending development approvals (in which case Participant’s signature is accompanied by the signatures of the current record owners of the Property); and

WHEREAS, the Foundation is a Colorado nonprofit corporation organized under the Colorado Nonprofit Corporation Act, and operated exclusively for educational and charitable purposes, and as provided in Section 501(c)(3) of the Internal Revenue Code;

WHEREAS, the Articles of Incorporation and the Bylaws for the Foundation provide that the purpose for which the Foundation has been organized is to collect and administer the release to the District of certain voluntary contributions by entities, including the Participant, that are engaged in or expect to be engaged in the construction of Residential Units within the District, such contributions to be applied towards the construction or expansion of school facilities (the “Capital Facility Fees”); and

WHEREAS, the Foundation, the Participant desires to provide for the payment of Capital Facility Fees to finance part of the costs of the acquisition, construction or expansion of school facilities as determined in accordance with the Articles of Incorporation and the Bylaws of the Foundation;

COVENANTS AND AGREEMENTS

1. Participant/Other Participants

The parties acknowledge that other parties may from time to time determine to execute agreements providing for the payment of Fees to the Foundation (the “Other Participants”). Hereafter, the term "Participants" shall refer collectively to the Participant and the Other Participants which shall have executed agreements providing for the payment of Fees to the Foundation.

2. Structure and Operation of the Foundation

The Foundation shall be organized as a nonprofit corporation under Colorado law, and shall take such steps as shall be necessary to ensure its continued good standing thereunder. The Board of Directors of the Foundation shall consist of such number of members and/or ex officio members as may be specified from time to time in the Bylaws of the Foundation. The Board of Directors of the Foundation shall serve as an advisory body to the Board of Education of the District, and collect from the Participant and release to the District from time to time, Capital Facility Fees pursuant to this Participant Agreement.

3. Payment of Capital Facility Fees

The Participant agrees to pay Capital Facility Fees to the Foundation for Residential Units constructed within the Property, according to the schedule of Capital Facility Fees then in effect at the time such amounts are paid. “Residential Units” shall include single-family detached homes, single-family attached homes, condominiums, townhomes, multi-family residential structures such as apartments, and mobile homes.

Notwithstanding the foregoing, the Board of Directors may determine to exclude certain types of residential property with respect to which student-age occupancy is not permitted. Capital Facility Fees shall be due and payable at the time of issuance of a building permit for a given Residential Unit.

4. Schedule of Capital Facility Fees

The current schedule of Capital Facility Fees is set forth in Exhibit C, attached hereto and incorporated herein by this reference (the “Schedule”). The Capital Facility Fees set forth in the Schedule shall automatically increase every two years on January 1st (the “Adjustment Date”), commencing on January 1, 2015 (the “Initial Adjustment Date”). The increase in Capital Facility Fees applicable on any given Adjustment Date shall be equal to the cumulative percentage increase in the Engineering News-Record Index from the prior Adjustment Date to September 1 of the year immediately preceding the next Adjustment Date.

5. Collection and Administration of Capital Facility Fees

Unless otherwise agreed by the Foundation and the District, all Capital Facility Fees shall be paid to the Foundation, which shall issue written receipts therefor to the Participant at the time payment is received. The Foundation shall account on a monthly basis for such funds according to generally accepted accounting principles, and shall complete an annual audit of receipts and expenditures of the Foundation by October 1 of each year.

6. Use of Capital Facility Fees

Capital Facility Fees paid to the Foundation shall be used for the purpose of acquiring (inclusive of acquisition of water resources and/or water supplies), developing, constructing or expanding school facilities (including but not limited to elementary, middle school, K-8 school high school facilities, or any combination thereof, but excluding, school administration and/or transportation facilities), for the costs operating the Foundation, and for any other lawful purpose as may be set forth in the Foundation's Articles of Incorporation or Bylaws, as they may exist from time to time.

7. Development Approvals

Provided that the Participant is not then in default of its obligations under any other Participant Agreement executed by the Participant, the District agrees to issue a letter to the public entity having jurisdiction over the approval of proposed development within the Property, to be submitted prior to the first public hearing on such development, stating that the Participant has bound itself under this Agreement to fund a portion of the capacity required by the proposed development.

8. Recording of Memorandum of Agreement/Covenant Running with the Land

A Memorandum of this Participant Agreement may be recorded by the Foundation against the Property forty-five (45) days following the date of execution hereof, unless prior to such date all Capital Facility Fees have been paid in advance as permitted under Paragraph 3 hereof.

9. Term of Agreement

This Agreement shall terminate upon the payment of the full amount of Capital Facility Fees for the number of units set forth in Exhibit B.

10. Notices

All notices required or permitted to be given hereunder shall be in writing and shall be effective upon personal delivery or three (3) business days following deposit of the notices in the United States Mail, postage prepaid and addressed as follows, or to such other address designated by a party upon notice as hereinabove provided.

To the Foundation

School District 27J
Capital Facility Fee Foundation
18551 E. 160th Avenue
Brighton, CO 80601
Attn: President

With a copy to:
White Bear Ankele Tanaka & Waldron
Professional Corporation
2154 E. Commons Ave.
Suite 2000
Centennial, CO 80122
Attn: William P. Ankele, Jr.

To the District:
School District 27J
18551 E. 160th Avenue
Brighton, CO 80601
Attn: Superintendent

To the Participant:
___________________
___________________
___________________
Attn:______________

11. Amendment

This Agreement cannot be amended or modified except by a writing executed by the Parties.

12. Applicable Law

This Agreement shall be construed and interpreted in accordance with the laws of the State of Colorado.

13. Entire Agreement

This Agreement constitutes the entire understanding between the parties hereto, and all prior agreements or understandings with respect to the subject matter hereof are deemed merged herein.

14. Waiver

No failure by any party to insist upon the strict performance of any agreement, term, covenant, or condition hereof or the exercise of any right or remedy consequent upon any default, and no acceptance of full or partial performance during the continuance of any such default, shall constitute a waiver of any such default of such agreement, term, covenant, or condition. No agreement, term, covenant, or condition hereof to be performed or complied with by any party, and no default thereof, shall be waived, altered, or modified except by a written instrument executed by the non-defaulting Party or Parties.

15. Remedies/Venue

In the event of a breach of this Agreement, the parties shall have such legal and equitable remedies as may then be available under the laws of the State of Colorado, and otherwise as expressly set forth in this Agreement. Venue for any action brought to enforce the terms hereof shall be in the Adams County District Court.

16. Attorneys' Fees

In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees incurred in connection with such dispute, whether in court or by arbitrator.

17. Assignment; Delegation

The obligations of this Agreement may be assigned by a Participant to a purchaser of all or a portion of the Property upon the execution and delivery to the Foundation of an assignment agreement between the Participant and the assignee, in a form approved by the Foundation, by which the assignee agrees to bind itself to the terms hereof with respect to the number of Residential Units associated with the portion of the Property being conveyed. Following execution of such agreement and delivery to the Foundation, the Participant shall be released with respect to its obligations to pay Capital Facility Fees for the number of Residential Units represented by the portion of the Property so conveyed. Except as expressly set forth herein or as contemplated hereby, neither this Agreement, nor any of the parties’ rights, obligations, duties or authorities hereunder may be assigned or delegated in whole or in part by any party without the prior written consent of the other parties, which consent shall not be unreasonably withheld. Any attempted assignment or delegation in violation of the foregoing shall be deemed void.

18. No Third Party Beneficiaries

None of the terms, conditions or covenants in this Agreement shall give or allow any claim, benefit, or right of action by any person or entity other than the District, the Foundation and the Participant. Any other person or entity affected by this Agreement shall be deemed an incidental beneficiary.

19. Severability

If this Agreement, or any portion of it, is for any reason held invalid by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision, and such holding shall not affect the validity of the remaining portions hereof.

20. No Personal Liability of Board Members and Officers

The Directors and Officers of the Foundation shall not be subject to personal liability to any person or entity in connection with the performance or non-performance of any of the obligations of the Foundation hereunder, or any other undertaking of such Board Members and Officers pursuant to the Bylaws.

21. Counterpart Execution

This Agreement may be executed in one or more counterparts, each of which shall constitute and original, but all of which, when taken together shall constitute a single agreement.

22. Authority to Execute/Participant as Future Owner

This Agreement shall be executed by the Participant, which is either the record owner of the Property as of the date hereof, or has entered into a contract for the purchase thereof with the current owners. Where the Participant’s interest in the Property is as a buyer under a contract for purchase, the signature(s) of the current owner(s) of the Property shall be affixed to this Agreement, in addition to that of the Participant. The Participant’s signature as a buyer under a contract for purchase of the Property shall bind the Participant to the terms hereof as owner of the Property, at such time as the Property is actually acquired by the Participant. In the event the Participant does not become the owner of the Property, the signature(s) of the owner(s) thereof to this Agreement shall bind such owner(s) and the Property to the terms hereof.

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year written above.

PARTICIPANT

_______________________
By: ________________________
Name: ______________________
Title: ______________________

ATTEST

By: _________________________
Secretary

SCHOOL DISTRICT 27J
CAPITAL FACILITY FEE FOUNDATION

By: ________________________
President

ATTEST

By: ________________________
Secretary

SCHOOL DISTRICT 27J

By: ________________________
Superintendent of Schools

EXHIBIT A

DESCRIPTION OF PROPERTY

If a metes and bounds legal description, legal description to be superseded by legal description of property as subdivided

 

 

EXHIBIT B

 

 

NUMBER AND TYPE OF RESIDENTIAL UNITS

 

 

 

EXHIBIT C

SCHEDULE OF CAPITAL FACILITY FEES

  • Single family attached/detached home $980
  • Condominiums/townhomes/multifamily $560

 

 

EXHIBIT D

 

 

NOTICE TO TITLE COMPANY

 

 

NOTICE TO TITLE COMPANY

 

 

The undersigned, being the authorized representative of ____________________, the Participant under that certain Participant Agreement between the Participant, the School District 27J Capital Facility Fee Foundation, and School District 27J, dated as of ________, hereby directs ____________________________ (name of title company), to include a line item in the Settlement Statement for any lot within the ________________ __________________ Subdivision, specifying the payment of Capital Facility Fees at the following rates for the following types of units, and accounting for same as part of Closing:

  • Single family attached/detached home $980/unit
  • Condominiums/townhomes/multifamily $560/unit

_____________________ (Participant)
By: ___________________
Date: _________________