HomeMy WebLinkAbout07981ORDINANCE NO. 7981
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL
AGREEMENT BY AND BETWEEN PUEBLO, A MUNICIPAL
CORPORATION AND PUEBLO COUNTY, EL PASO COUNTY
AND OTHER GOVERNMENTAL ENTITIES CONCERNING THE
MANAGEMENT AND CONSERVATION OF FOUNTAIN CREEK
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO. that:
SECTION 1
The Intergovernmental Agreement by and between Pueblo, a Municipal
Corporation (the "City "), Pueblo County, El Paso County and other governmental
entities dated December 15, 2008, concerning the management and conservation of
Fountain Creek (the "Agreement "), a copy of which is attached hereto, having been
approved as to form by the City Attorney, is hereby approved.
SECTION 2
The President of the City Council is authorized to execute the Agreement in the
name of the City and the City Clerk is directed to affix the seal of the City thereto and
attest same.
SECTION 3
Notwithstanding anything in the Agreement, the Agreement and the City's obliga-
tions thereunder are expressly made subject to sufficient appropriations being made
therefor for Fiscal Year 2009 and each fiscal year thereafter. Additionally, by approving
and entering into the Agreement, City is not thereby consenting to make any geographic
area of the City a portion of the "Corridor" as defined in Exhibit "A" to the Agreement.
SFrTinN 4
In order for the City to have representation on the Fountain Creek Watershed
Governing Board, the City must immediately ratify and execute the Agreement. The
City Council hereby finds, determines and declares that this Ordinance is necessary for
the immediate preservation of the public health, property and safety.
SECTION 5
This Ordinance shall become effective upon final passage and approval.
A77TSTFD SY:
CITY CLERK
PASSED AND APPROVED: March
INTRODUCED: February 23, 2009
BY: Michael Occhiato
} Councilperson
APPR D' } �-
PRESIDENTaf Cfty Council
/88•
ON aim I ff. NO=
Background Paper for Proposed
ORDINANCE
AGENDA ITEM # 20
DATE: February 23, 2009
DEPARTMENT: Law Department
TITLE
AN ORDINANCE APPROVING AN INTERGOVERNMENTAL AGREEMENT BY AND
BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND PUEBLO COUNTY, EL
PASO COUNTY AND OTHER GOVERNMENTAL ENTITIES CONCERNING THE
MANAGEMENT AND CONSERVATION OF FOUNTAIN CREEK
ISSUE
Should Council approve an intergovernmental agreement between the City, El Paso
County, Pueblo County, the cities of Colorado Springs and Fountain, and other entities
for the purpose of creating a separate governmental entity for the management of
Fountain Creek?
RECOMMENDATION
None.
BACKGROUND
The Ordinance before Council would approve an intergovernmental agreement ( "IGA ")
by and between Pueblo County, El Paso County and several cities and towns relating to
Fountain Creek. Essentially, the IGA establishes a vehicle for multi -party cooperation
concerning Fountain Creek and to establish sequential legal entities. The first legal
entity is created by the IGA and is referred to as the Fountain Creek Watershed
Governing Board (the "Governing Board "). The second entity is a special purpose
District to be created by the General Assembly. Since the District legislation has been
introduced as Senate Bill 09 -041 and is moving quickly through the Legislature, the
creation of the Governing Board entity may unnecessarily duplicate the purpose and
functions which will all be performed by the District.
The IGA Board
As multiple parties enter into the IGA, the Governing Board will be governed by nine
directors appointed as follows:
A majority of Directors constitutes a quorum and a simple majority of a quorum may
take any action except for policy or spending resolutions which require a "supermajority"
for adoption.
The Governing Board is given broad land use authority within an area defined as the
"Corridor" B which is the 100 -year floodplain of Fountain Creek south of the City of
Fountain and north of the Pueblo City limits, and advisory land use powers through the
remainder of Pueblo and El Paso Counties.
By entering into the IGA, Pueblo would be agreeing to provide "appropriate staff,
resource, and funding support" to the Governing Board.
The IGA contains a dispute resolution provision which provides for remedies against
any entity which violates the IGA, including attorney fees.
The SB09 -141 District
The latest version of SB 09 -141' has been attached to the IGA before Council as
Exhibit A. Under this version of the bill, a special district ( "District ") is created which
includes all of Pueblo and El Paso Counties, including the City of Pueblo. The District is
governed by a Board of Directors constituted similar to the Board created under the
IGA. The District is given broad powers concerning flood control, drainage and
recreation throughout the District, including the ability to impose ad valorem taxes
(subject to TABOR election requirements) and to condemn property.
Within an area referred to as the Fountain Creek Watershed Management Area
( "Management Area "), which includes all of the City of Pueblo (and not merely the
portion of the City within the actual hydrologic watershed of Fountain Creek), the District
has the powers to: create improvement districts within the Management Area financed
with fees and special assessments; construct improvements; adopt floodplain zoning
and orders relating to rainfall, drainage and control; impose service charges, and have
advisory land use authority. In this Management Area, no drainage or flood control
structure or recreational facility may be undertaken by a government entity, such as the
City of Pueblo, unless it is reviewed and approved by the District's Board of Directors.
The District is given the right to use public rights of way within the City subject to
coordination with the City and other requirements.
Lower
Ark
Small
Citizen at
Valley
MunPs
Large
Member
Board
County of
County of
City
City of
City of
Conserva
Rep or
selected
of the
Member
Pueblo
El Paso
Pueblo
to
Colorado
Fountain
ncy
El Paso
by
Citizen
Springs
District or
County
Pueblo
Advisory
Pueblo
Citizen
County &
Group
County
City
Citizen
City of
County of
Jointly by
Appointed
County of
Pueblo
County of
El Paso
City of
Pueblo
City of
Colorado
City of
Fountain
County of
Pueblo
Colorado
Springs &
pueblo &
City of
County of
El Paso
by:
Springs
County of
pueblo
& County
El Paso
of Pueblo
A majority of Directors constitutes a quorum and a simple majority of a quorum may
take any action except for policy or spending resolutions which require a "supermajority"
for adoption.
The Governing Board is given broad land use authority within an area defined as the
"Corridor" B which is the 100 -year floodplain of Fountain Creek south of the City of
Fountain and north of the Pueblo City limits, and advisory land use powers through the
remainder of Pueblo and El Paso Counties.
By entering into the IGA, Pueblo would be agreeing to provide "appropriate staff,
resource, and funding support" to the Governing Board.
The IGA contains a dispute resolution provision which provides for remedies against
any entity which violates the IGA, including attorney fees.
The SB09 -141 District
The latest version of SB 09 -141' has been attached to the IGA before Council as
Exhibit A. Under this version of the bill, a special district ( "District ") is created which
includes all of Pueblo and El Paso Counties, including the City of Pueblo. The District is
governed by a Board of Directors constituted similar to the Board created under the
IGA. The District is given broad powers concerning flood control, drainage and
recreation throughout the District, including the ability to impose ad valorem taxes
(subject to TABOR election requirements) and to condemn property.
Within an area referred to as the Fountain Creek Watershed Management Area
( "Management Area "), which includes all of the City of Pueblo (and not merely the
portion of the City within the actual hydrologic watershed of Fountain Creek), the District
has the powers to: create improvement districts within the Management Area financed
with fees and special assessments; construct improvements; adopt floodplain zoning
and orders relating to rainfall, drainage and control; impose service charges, and have
advisory land use authority. In this Management Area, no drainage or flood control
structure or recreational facility may be undertaken by a government entity, such as the
City of Pueblo, unless it is reviewed and approved by the District's Board of Directors.
The District is given the right to use public rights of way within the City subject to
coordination with the City and other requirements.
Within the Corridor, defined in SB141 as in the IGA, the District has enforceable land
use authority.
FINANCIAL IMPACT
Unknown.
ROBERT C. "BOB" BRLINK El Paso County, CO
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INTERGOVERNMENTAL AGREEMENT FOR THE MANAGEMENT
AND CONSERVATION OF FOUNTAIN CREEK
This Intergovernmental Agreement for the Management and Conservation of Fountain Creek ( "IGA" or
"Agreement ") is made this J6'day of n O/ 2008 between Pueblo County by and through the
Board of County Commissioners of Pueblo County, a duly organized county and political subdivision of
the State of Colorado ("Pueblo County "), and El Paso County by and through the Board of County
Commissioners of El Paso County, Colorado, a duly organized county and political subdivision of the
State of Colorado ( "EPC "). Pueblo County and EPC may be collectively referred to hereinafter as the
"Parties" or referred to individually as a "Party."
RECITALS
WHEREAS, the Parties recognize that a separate, legally constituted entity ( the "Watershed
District ") is needed, and its creation is appropriate, to primarily manage, administer, and fund the capital
improvements and maintenance projects necessary to mitigate flooding, sedimentation and erosion,
address water quality issues, improve drainage and, in addition, to obtain funding for protection of open
space plus provide for the development of public recreational opportunities, including parks and trails,
within the Fountain Creek Watershed (hereinafter "Watershed "); and
WHEREAS, the Parties are authorized under C.R.S. § 29 -1 -203 to cooperate and contract with
one another to provide the functions, services, and facilities provided for herein including the sharing of
costs, providing for the imposition of taxes, incurring debts, and establishment of a separate legal entity
to jointly exercise the authority of the Parties as identified herein; and
WHEREAS, there are many challenges arising from the nature of the Watershed, including the
torrential storms occurring sporadically and intermittently in these urban and rural areas that drain into
the Watershed, and as a result, there is an ongoing potential for danger of floods in the Watershed and
the resultant risks to the property and to the health and safety of persons within these urban and rural
areas and within the Watershed; and
WHEREAS, the Watershed is physically located in both El Paso County and Pueblo County, and
crosses the jurisdictional boundaries of not only these two political subdivisions of the State, but also
crosses the jurisdictional boundaries of other governmental entities including the cities of Colorado
Springs, Fountain, and Pueblo (see Watershed Base Map by Thomas & Thomas dated September 5,
2008, attached hereto at Figure 1 and incorporated herein by this reference); and
WHEREAS, the Watershed includes large areas of both incorporated and unincorporated land,
which results in the fragmentation and proliferation of powers, rights, privileges, and duties pertaining to
storm water, flood mitigation and attenuation and drainage within the Watershed among a number of
public bodies, which in turn results in inabilities of such public bodies to acquire suitable capital
improvements for the mitigation of such dangers and risks; and
WHEREAS, the Watershed, including Fountain Creek and related wetlands and existing trails
and recreational facilities, is a unique and high quality watershed that is an important resource and asset — to the people of Pueblo County and El Paso County; and
WHEREAS, a technical study of the Watershed has proceeded as a joint effort of the Pikes Peak
Area Council of Governments ( "PPACG ") and the Pueblo Area Council of Governments ( "PACOG ")
since 2003. Using federal funding sources and matching funds from members of each organization, the
study has examined the hydrology of the Watershed under the direction of the US Army Corps of
Engineers. The goal of the study has been to make the Watershed eligible for federal assistance for
flood control and environmental enhancement; and
WHEREAS, in order to begin addressing the foregoing and other challenges facing the
Watershed, the Fountain Creek Vision Task Force began meeting in 2006, with its Consensus
Committee guiding the process based on input from working groups and the Task Force. The ongoing
deliberations of the Consensus Committee, the working groups, and the full Fountain Creek Vision Task
Force have been joined with the group's mission statement, vision statement, and goals statement to
comprise the "Strategic Plan for the Fountain Creek Watershed;" and
WHEREAS, the Fountain Creek Vision Task Force efforts have been supported conceptually as
well as financially by a diverse group of interests which includes municipalities, utilities and private
individuals including providing matching funds to a Water Supply Reserve Account grant from the
Arkansas Basin Roundtable and the Colorado Water Conservation Board of $75,000.00; and
WHEREAS, the Parties desire to preserve the collaborative work and attain the goals established
by the Fountain Creek Vision Task Force. The Parties desire to set forth, in writing, the framework
under which they will collaborate and cooperate to establish sequential legal entities, the first subsumed
in the second if created, to address and manage the challenges identified above as related to the
Watershed. The first is the Fountain Creek Watershed Governing Board ( "Governing Board ") to jointly
exercise the authority of the Parties as set forth herein. The second is a separate governmental entity, to
be created pursuant to Title 32 of the Colorado Revised Statutes as a Special District under the
legislation modeled after the Urban Drainage and Flood Control Act, C.R.S. §§ 32 -11 -101, et seq.
( "District "), which district will be a body corporate and politic, a political subdivision of the state, with
the powers provided in the proposed legislation, consistent with the terms of this IGA and in a form
similar to that attached hereto at Exhibit A and incorporated herein by this reference. This Special
District shall be referred to herein as the Fountain Creek Watershed District ( "Watershed District" or
"District "); and
WHEREAS, the Parties recognize that time is required to legislatively create the Special District;
therefore, the framework under which the Parties will collaborate and cooperate is to establish by this
IGA a separate legal entity known as the Governing Board to make executive and legislative decisions
of the Parties regarding matters described herein; and
WHEREAS, the Governing Board will make executive and legislative decisions for the Parties
regarding matters described herein and as provided in this IGA, and will be responsible for moving the
Colorado Legislature to create the District. The Governing Board, in consultation and cooperation with
the appropriate legislative sponsor, will assist in preparing draft proposed legislation for submission to
and consideration by the General Assembly during the 2009 session (and, if not successful, successive
legislative sessions as may be desired by the Governing Board) to establish the Watershed District and
prepare for referral a funding measure to the appropriate electors of Pueblo County and El Paso County.
Once the Watershed District is authorized and established, the Governing Board, the Citizen Advisory
Group and the Technical Advisory Committee will assume their same roles respectively, as the
Watershed District; and
WHEREAS, given the fragmentation and proliferation of powers, rights, privileges, and duties
pertaining to water, flood control, and drainage within the Watershed among the various affected public
bodies, the Parties believe that a general law cannot be made applicable to the Watershed District, and to
properties, powers, duties, privileges, immunities, rights, liabilities, and disabilities pertaining thereto,
because of the number of atypical factors and special conditions concerning them, and therefore believe
that it is necessary to obtain special legislation to establish the Watershed District and to provide a
vehicle for funding the District; and
WHEREAS, the City of Pueblo is a home rule city and Colorado municipal corporation
organized and existing under and by virtue of Article XX of the Colorado Constitution ( "Pueblo "); and
WHEREAS, the City of Colorado Springs is a home rule city and Colorado municipal
corporation organized under Article XX, Section 6 of the Colorado Constitution ( "Colorado Springs ");
and
WHEREAS, the City of Fountain is a home rule city and Colorado municipal corporation
organized under Article XX, Section 6 of the Colorado Constitution ("Fountain "); and
WFIEREAS, the Town of Monument is a municipal corporation organized under Title 31 of the
Colorado Revised Statutes ("Monument "); and
WHEREAS, the Town of Green Mountain Falls is a municipal corporation organized under Title
31 of the Colorado Revised Statutes ( "Green Mountain Falls "); and
WHEREAS, the Town of Palmer Lake is a municipal corporation organized under Title 31 of the
Colorado Revised Statutes ( "Palmer Lake "); and
WHEREAS, the City of Manitou Springs is a home rule city and Colorado municipal corporation
organized under Article XX, Section 6 of the Colorado Constitution ( "Manitou Springs "); and
WHEREAS, Pueblo, Colorado Springs, and Fountain are within the Watershed and may become
signatories and additional Parties to this IGA in the future; and
WHEREAS, Monument, Green Mountain Falls, Palmer Lake and Manitou Springs (the "Small
Municipalities ") are within the Watershed and may become signatories and additional Parties to this
IGA in the future; however, their role as a Party is limited and they shall not have appointing authority
to the Governing Board; and
WHEREAS, upon their respective ratification and execution of this Agreement, the
representation of Pueblo, Colorado Springs, and Fountain will be provided by each municipality being
provided one (1) Director selected and appointed by their respective City Council; and
WHEREAS, the Lower Arkansas Valley Water Conservation District, and other entities with
interests in the tributaries of the Arkansas River, may become a signatory to this IGA in the future; and
WHEREAS, the input of many citizens, stakeholder groups and property owners was actively
sought pursuant to the General Assembly's House Bill 05 -1177 in the creation of a Strategic Plan as
provided in the Water Supply Reserve Account grant, and therefore it is recognized that a Citizen's
Advisory Group will provide beneficial insight to the Governing Board and District upon its creation.
I: MIMNAWS►`IJI
NOW THEREFORE, in consideration of the foregoing recitals, and the terms and conditions set
forth below, the sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Purposes. The Parties seek to accomplish the following purposes through this IGA:
(a) Establish the Governing Board for advocacy on behalf of the Watershed to mitigate
flooding, erosion and sedimentation, address water quality to provide a healthy riparian habitat
with recreational amenities;
(b) Ensure fair and equitable allocation of the annual costs of maintaining and administering
the Governing Board and the subsequent Watershed District upon its creation;
(c) Facilitate the establishment of the Watershed District by consulting and cooperating with
the appropriate legislative sponsor and preparing for submission draft proposed legislation
consistent with the terms of this IGA in a form similar to that attached hereto at Exhibit A and
incorporated herein by this reference to the Colorado Legislature, the Legislative Counsel's
Office, and other appropriate agencies for consideration by the General Assembly during the
2009 session (and, if not successful, successive legislative sessions as may be desired by the
Governing Board);
(d) Facilitate the establishment of the Watershed District by implementing the directives of
the Colorado Legislature and other applicable state statutes;
(e) Timely prepare and submit ballot language and position statements to place a funding
measure before the appropriate electors of Pueblo County and El Paso County; and
(f) Provide information to educate the public concerning the purposes and benefits of the
proposed Watershed District.
2. Governing Board. The Parties hereby establish the Governing Board in which all executive,
legislative, and managerial powers of the Parties as to the operation of this IGA and management of the
Watershed shall vest. Each Party, by signing this IGA, and upon appointment of its Director as
described below, hereby grants decision - making authority to its respective Director for decisions to be
made by the Governing Board relating to this IGA and management of the Watershed.
2.1 The purposes and responsibilities of the Governing Board shall be first to seek approval of
special legislation to establish the Watershed District, and second, at the appropriate time, to place a
funding measure on the ballot to provide for long term funding of the Watershed District in order to
manage, administer, and fund the capital improvements and maintenance projects necessary to improve
drainage, mitigate flooding, sedimentation, and erosion, address water quality issues, and develop public
recreational opportunities including parks and trails in the Watershed. In addition to, and concurrent
with, the purposes and responsibilities identified in this Paragraph, the Governing Board shall also have
those purposes and responsibilities deriving from those jurisdictional powers identified below in
Paragraph 5.
2.2 El Paso County and Pueblo County, when they execute this IGA, may each appoint one (1)
Director to the Governing Board, The initial Governing Board shall consist, at a minimum, of two (2)
Directors as follows:
One (1) County Commissioner of Pueblo County or their designee; and
One (1) County Commissioner of El Paso County or their designee.
0
2.3 Pueblo, Colorado Springs, and Fountain may ratify and execute this IGA or an appropriate
amendment or addendum and may each appoint one (1) Director to the Governing Board as described
herein.
2.4 The Lower Arkansas Valley Water Conservancy District may ratify and execute this IGA
but shall not have appointing authority to the Governing Board. The Board of County Commissioners
of Pueblo County may appoint one (1) Director from the Lower Arkansas Valley Water Conservancy
District or may select and appoint one (1) Pueblo County citizen to serve as a Director.
2.5 The Small Municipalities may ratify and execute this IGA but shall not have appointing
authority to the Governing Board. Those Small Municipalities that execute this IGA may nominate
candidates, from whom the Board of County Commissioners of El Paso County and the Colorado
Springs City Council may jointly select and appoint one (1) Director to the Governing Board; however,
if no nominees are made by the Small Municipalities or if no Small Municipalities execute this IGA, the
County Commissioners and City Council may jointly select and appoint one (1) El Paso County citizen
to serve as a Director.
2.6 Two (2) additional citizen Directors may be appointed —one from Pueblo County and one
from the Citizen Advisory Group —as set forth in the Table in Paragraph 2.7.
2.7 If necessary, the Parties, through their appointed Directors, shall ratify and execute an
amendment or addendum to add new Parties as identified herein. The full Governing Board, if this IGA
is executed by all anticipated entities, will consist of nine (9) Directors, as identified below:
Board
County
County
City of
City of
City of
Lower Ark
Small
Citizen at
Member of
Member
of
of El
Pueblo
Colorado
Fountain
Valley
Muni's
Large
the Citizen
Pueblo
Paso
Springs
Conservan-
Rep or El
selected
Advisory
cy District
Paso
by
Group
or Pueblo
County
Pueblo
County
Citizen
County
Citizen
& Ci
Appoint-
County
County
City of
City of
City of
County of
City of
County of
Jointly by
et! by:
of
of El
Pueblo
Colorado
Fountain
Pueblo
Colorado
Pueblo &
County of
Pueblo
Paso
Springs
Springs
City of
El Paso &
& County
Pueblo
County of
of El
Pueblo
Paso
2.8 Each appointing Party's governing body (e.g., Board of County Commissioners or City
Council) shall select and appoint that Party's Director in any lawful manner as determined by that
governing body. Each Party shall designate and provide notice to the other Parties of the identity of its
respective Director, and any designee or alternate it may choose to name, within thirty (30) days after
the execution of this IGA, and thereafter within five (5) days of the appointment of any new or
replacement Director or appointee. Each appointing Party's governing body may also name an alternate
Director to attend meetings if the primary Director is unavailable or has a conflict of interest.
2.9 Governing Board Directors will not receive a salary or reimbursement for any expenses
incurred in the performance of their duties, other than as may be provided by each Party's respective
organization at the sole discretion of that organization whom the Director represents.
2.10 The Governing Board shall elect a Chairperson and Vice Chairperson from among the
Directors. The Chairperson shall organize and conduct meetings and provide for any necessary
administrative support for the Governing Board.
2.11 The term of office for each Director shall be four (4) years, except in the first year, when
one -third of the Directors shall serve a three (3) year term and one -third shall serve a two (2) year term
as determined by the Governing Board. All terms commence on January 1 and terminate on December
31 of the applicable calendar year. Directors may serve an unlimited number of successive terms.
2.12 Any Director may be removed from the Governing Board by the appointing body of such
Director to the Governing Board.
2.13 Any vacancies on the Governing Board shall be filled by the appointing body in such
manner as they may deem appropriate, but in any event, within thirty (30) days of the creation of the
vacancy.
2.14 Directors shall disqualify themselves from voting on any issue with respect to which the
Director has a conflict of interest in compliance with C.R.S. §§ 18 -8 -308, 24 -18- 108.5, and 24 -18 -110.
Any signatory appointing body may name an alternate Director to cure the temporary disqualification,
which alternate may vote in place of their disqualified Director.
2.15 The Governing Board shall elect the following officers at its first meeting, and thereafter, at
the annual meeting in January of each calendar year. Officers shall be elected by a majority vote of a
quorum of the Directors, whether by voice vote or written ballot, as may be determined by the
Chairperson.
(a) Chairperson. The Chairperson shall preside over all meetings of the Governing
Board and see that the meeting and debate are conducted in an orderly and expeditious manner.
The Chairperson shall sign all contracts, agreements, and legal documents of the Board, and in
general shall perform all duties incident to the office of Chairperson.
(b) Vice - Chairperson. The Vice -chair shall assume the duties of the Chair in his/her
absence
2.16 The Governing Board shall appoint a Secretary who shall keep a written or recorded record
of the minutes of all meetings, ensure that all notices required by law are duly given and posted, shall
serve as the custodian of Governing Board records, shall attest to documents as the need arises, and shall
perform such other functions as may be prescribed by the Governing Board. The Secretary may be an
employee of the Governing Board, an employee of a Party entity, an independent contractor, a
volunteer, or a Director.
2.17 A majority of the Directors shall constitute a quorum for the transaction of business unless a
different number is set by resolution of the Board at the Annual Meeting. Except as otherwise provided
herein or in the Bylaws, the affirmative vote of a majority of a quorum of the Board of Directors shall be
sufficient to conduct the business of the Governing Board. If less than a quorum is present at a meeting,
the Chairperson or another officer may adjourn the meeting to a different time and place, and in such
case the Chairperson shall notify absent Directors of the time and place of such adjourned meeting.
2.18 The Directors or any committee designated by the Governing Board may participate in any
meeting of such Board or committee by means of a telephone conversation or similar communications
equipment by which all persons participating in the meeting can hear each other at the same time. Such
participation shall constitute presence in person at the meeting. Any such telephone meeting shall
conform to the Open Meetings Law, C.R.S. § §24 -6 -401, et seq., including the provision of proper
notice, as may be relevant, and a facility to permit members of the public in attendance to hear the
proceedings.
2.19 The proceedings of the Governing Board shall comply with all provisions of the Colorado
Open Meetings Law, C.R.S. §§ 24 -6 -401, el seq., and shall provide opportunities for public input by, at
a minimum, permitting the public to address the Governing Board in open meetings. The Board shall
adopt procedures for calling emergency meetings in conformity with the open Meetings Law. The
Board may meet in executive session pursuant to state statute.
2.20 The Governing Board shall adopt Bylaws to define the policies and procedures of the
Governing Board.
2.21 Each Director or their alternate shall be entitled to one vote. Voting by proxy shall not be
permitted.
2.22 The Governing Board may appoint an Executive Director for the District. This Director
shall have powers granted by the Board, which may include, but are not limited to, the ability to hire
consultants and /or staff, as needed, to carry out the spending plan adopted by the Board. The Governing
Board may contract for professional services as deemed necessary to administer and implement the
purposes of this IGA.
2.23 The Governing Board shall consult with the Technical Advisory Committee regarding
public policy or expenditure of funds for the benefit of the Watershed. The Technical Advisory
Committee shall be advisory to the Governing Board. The Governing Board shall adopt policy or
spending resolutions by a super- majority vote as shown in the Table below.
Board Members Present
2
3
4
5
6
7
8
9
Votes Required for Approval
2
2
3
4
4
5
6
7
Table: Voting Requirements for Super - Majority Voting
3. Technical Advisory Committee. The Governing Board shall establish a Technical Advisory
Committee (the "TAC ") pursuant to the attached Exhibit B, which provides guidelines for membership
and protocols for the conduct of its business. All meetings of the TAC shall comply with the Open
Meetings Law.
4. Citizen's Advisory Group. There shall be a Citizen's Advisory Group (the "CAG "), whose
purpose is to consult with, and offer advice to, the Governing Board. The CAG will be established
pursuant to the attached Exhibit C, which provides guidelines for membership and protocols for the
conduct of its business. All meetings of the CAG shall comply with the Open Meetings Law.
5. Jurisdiction. The Parties hereto recognize that the jurisdiction of the Watershed District is
significant in forming an independent entity with authority to achieve the objectives of the Strategic Plan
and other goals of the Governing Board. The Parties also recognize and acknowledge that the benefits
that may accrue from an improved watershed will accrue to all the citizens of the respective counties.
Therefore, the Governing Board and, subsequently, the District (for purposes of this Paragraph 5 and
Paragraphs 6 and 7, this sequential linkage is recognized and referred to as "Governing Board/District "),
when established by the legislature, will have jurisdiction over the following:
5.1. Funding to Support the Governing Board /District Since all citizens of both counties will
benefit from a restored and enhanced watershed, the funding of the Governing Board/District will be
derived from both El Paso and Pueblo Counties.
5.2. Cooperation, financial and technical assistance The Governing Board/District will seek to
provide cooperation, financial and technical assistance throughout the watershed, more particularly
described as Watershed Boundary Dataset, Hydraulic Unit Code # 11020003, Fountain Creek Sub -basin
of the Arkansas River, Colorado, available URL: http : / /datagateway.nres.usda.gov attached hereto at
Figure 2 and incorporated herein by this reference.
5.3. Initial Powers The Governing Board/District shall have jurisdiction to accept and manage
funding for, and to manage and construct, stream improvements in the Watershed defined herein, and to
have land use authority within the corridor as defined in this Paragraph. Outside of the corridor the
Governing Board's /District's land use authority is limited to discretionary and advisory only; however,
all Parties shall be required to provide notice to, and accept comment from, the Governing
Board/District regarding land use applications for projects located outside of the corridor that, in the
opinion of the applicable Party's Planning Director or their designee, will have a direct or indirect
impact on the Watershed. Each Party shall send notice to the Governing Board/District identifying their
Planning Director or designee. The Governing Board/District, at its discretion, may also request to
review land use applications of any Party for projects located outside of the corridor that it believes may
directly or indirectly impact the Watershed. The corridor as discussed in this Paragraph is defined as: a
corridor along Fountain Creek, initially, the One Hundred (100) Year Floodplain, as that term is defined
by the United States Federal Emergency Management Agency (FEMA 100 -year floodplain) and further
identified on maps promulgated by that agency, limited to those floodplains in El Paso County which lie
South (downstream) of the municipal limits of the City of Fountain and the floodplain in Pueblo County
lying North (upstream) of the municipal limits of the City of Pueblo. If other entities execute this IGA,
their respective governing bodies may consent to jurisdiction of the District and add property to the
jurisdictional corridor. The Parties shall also have the option of adding additional sections of the
Watershed within their respective jurisdictional boundaries to the jurisdiction of the Governing
Board/District.
6. Support and Funding. The Parties hereby agree to provide appropriate staff, resource, and
funding support to the Governing Board/District. The Parties agree to fund independent staff or pledge
to support the Governing Board/District with their own employees or contribute funding as deemed
appropriate and that is fair and equitable.
7. Appropriation of Funds. In accord with the Colorado Constitution or the city charter of the
respective governmental entities that are Parties to this agreement, performance of each governmental
entity's obligations under this Agreement is expressly subject to appropriation of funds by the respective
governing body of each governmental entity. In the event funds are not appropriated in whole or in part
sufficient for performance of a governmental entity's obligations under this Agreement, or appropriated
funds may not be expended due to applicable spending limitations, then performance of said
governmental entity under this Agreement shall be null and void by operation of law, and said
governmental entity shall thereafter have no liability for compensation or damages to any person in
excess of said governmental entity's authorized appropriation for this Agreement or the applicable
spending limit, whichever is less. Any governmental entity that is a Party to this Agreement shall notify
all other Parties and the Governing Board/District as soon as reasonably practicable in the event of non -
appropriation or in the event a spending limitation becomes applicable.
8. Impact on Water Rights. Nothing herein shall be construed as modifying or amending existing
laws or court decrees with respect to the determination and administration of water rights.
9. Limitations on Jurisdiction. Nothing herein shall be construed so as to in any manner expand
upon or limit the lawful jurisdiction and authority of the Parties except as limited in Paragraph 5.
10. Amendment of IGA. This IGA may be amended by an appropriate amendment or addendum
only upon the written consent of all Parties hereto.
11. Withdrawal. A Party may at any time withdraw from this IGA by providing written notice to
all Parties. If the withdrawing Party has committed funds for specific project costs associated with a specific
piece of work furthering the completion of the specific project, then the withdrawing Party shall pay its share
for the percentage of said work associated with the project that has been completed as of the date of the
written notice to withdraw.
12. Termination. This IGA shall remain in effect until at least three (3) years from the effective
date. If the Watershed District has not been formed by that time, then the Governing Board will make a
determination whether to continue or dissolve or assign its obligations to the Parties in an equitable
manner.
13. Applicable Law. This IGA shall be governed by and construed according to the laws of the
State of Colorado.
14. No Third Party Beneficiaries. This IGA is intended to describe the rights and responsibilities
of and between the Parties and is not intended to, and shall not be deemed to confer any rights upon, any
persons or entities not named as Parties, nor to limit in any way the powers and responsibilities of the
Parties or any other entity not a party hereto.
15. Entire Agreement. This IGA, together with all Exhibits attached hereto, which Exhibits are
incorporated herein by this reference (draft proposed legislation consistent with the terms of this IGA
will be in a form similar to that attached hereto at Exhibit A), constitutes the entire agreement between
the Parties hereto, and all other representations or statements heretofore made, verbal or written, are
merged herein.
16. Parties Bound by Agreement. This IGA is binding upon the Parties hereto and upon their
respective legal representatives and successors.
17. Captions. All captions contained in this IGA are for convenience only and for reference, do not
define or limit the scope or intent of any provisions of this IGA, and shall not be construed to affect in
any manner the terms and provisions hereof or the interpretation or construction thereof.
18. Counterparts. This IGA may be executed in counterparts, each of which shall constitute an
original and all of which, when taken together, shall constitute one agreement.
19. Severability. Each provision of this IGA is severable from any and all other provisions of this
IGA. Should any provision(s) of this IGA be determined by a court of competent jurisdiction to be
unlawful or unenforceable, the balance shall nonetheless be of full force and effect.
9
20. Dispute Resolution and Attorney Fees. The Parties shall first make all reasonable attempts to
negotiate in good faith to resolve any disputes concerning the terms or performance of this IGA. If the
Parties are not successful in resolving the dispute informally, then the Parties shall first attempt to
resolve the dispute by submitting to non - binding arbitration with a mutually acceptable arbitrator in a
location that is mutually agreeable to the Parties to attempt to resolve the dispute. During this
alternative dispute resolution process, the Parties agree to discontinue any activity that could increase or
expand the alleged violation of this IGA or dispute; however, if a Party to the dispute reasonably
determines that activity that could increase or expand the alleged violation of this IGA or dispute is
imminent, exists, or has occurred, such Party may seek injunctive relief, including ex parte injunctive
relief after giving 24 (twenty -four) hour notice to the Party(s) allegedly violating the IGA, to stop the
activity, either temporarily or permanently, without being required to first proceed with the alternative
dispute resolution process. Parties to the dispute shall share the cost of the alternative dispute resolution
process equally up to and including the cost of preparing any settlement agreement or arbitration award
that is accepted by the Parties; however, services and associated fees and costs of attorneys, lay and
expert witnesses, and consultants are the direct responsibility of each Party. Should non - binding
arbitration not resolve the dispute, then the Parties shall be free to pursue any other legal or equitable
remedy available. The Parties agree to reasonably expedite any legal proceedings brought hereunder in
order to obtain a prompt resolution, including making reasonable efforts to arrive at a mutually
agreeable forum for jurisdiction and venue. If a Party shall commence any action or proceeding against
another Party(ies) in order to enforce the provisions of this IGA or to recover damages as a result of the
alleged breach of any of the provisions of this IGA, the prevailing Party shall be entitled to recover from
the other Party(ies) to the dispute all reasonable costs in connection therewith, including reasonable
attorneys' fees.
21. Notice. All notices and other communications that are required or permitted to be given to the
Parties under this IGA shall be sufficient in all respects if given in writing and delivered in person, by
telecopy, by overnight courier, or by certified mail, postage prepaid, return receipt requested, to the
receiving party at the following addresses:
Pueblo County
Chair, Board of County Commissioners
215 West Tenth Street
Pueblo, CO 81003 -2944
Telephone: 719 -583 -6535
Facsimile: 719 -583 -6617
With a copy to: Office of the County Attorney
215 West Tenth Street, Room 312
Pueblo, CO 81003 -2944
Telephone: 719-583-6630
Facsimile: 719 -583 -6057
El Paso County
County Administrator
27 East Vermijo Street, Third Floor
Colorado Springs, CO 80903
Telephone: 719 -520 -7276
Facsimile: 719 -520 -6397
10
With a copy to: Office of the County Attorney
27 East Vermijo Street, Third Floor
Colorado Springs, CO 80903
Telephone: 719 -520 -6485
Facsimile: 719 -520 -6487
City of Pueblo
City Manager
City of Pueblo
1 City Hall Place
Pueblo, CO 81003
Telephone: 719 -553 -2655
Facsimile: 719 -553 -2698
With a copy to: Pueblo City Attorney
503 N. Main St., Suite 127
Pueblo, CO 81003
Telephone: 719 -545 -4412
Facsimile: 719 -545 -4301
City of Colorado Springs
City Manager
City of Colorado Springs
107 North Nevada Avenue, Suite 205
P.O. Box 1575, Mail Code 1547
Colorado Springs, CO 80901 -1575
Telephone: 719- 385 -5455
Facsimile: 719-385-5488
With a copy to: City Attorney /General Counsel
City of Colorado Springs, Colorado
30 S. Nevada, Suite 501
P.O. Box 15751MC 510
Colorado Springs, CO 80901 -1575
Telephone: 719-385-5909
Facsimile: 719 -578 -6209
City of Fountain
City Manager
116 South Main Street
Fountain, CO 80817
Telephone: 719 - 322 -2000
Facsimile: 719- 322 -2001
11
IN WITNESS THEREOF, the parties have signed this IGA on the day and year indicated
below.
BOARD OF COUNTY COMMISSIONERS
OF PUEBLO COUNTY, COLORADO
By LX-
Chair 1_
Dated this _`� day of
MURNEWIN
BOARD OF COUNTY COMMISSIONERS
OF EL PASO COUNTY, COLORADO
Dennis Hisey, Chair
Dated this day of 1 200.
ATTEST:
By:
Clerk and Recorder
APPROVED AS TO FORM:
Pueblo CpnnTy Att ey' c
El Paso C AttomeyIs Office J
ADD SIGNATURE BLOCKS FOR ENTITIES AS APPROPRIATE
12
IN WITNESS THEREOF, the parties have signed this IGA on the day and year indicated
below.
BOARD OF COUNTY COMMISSIONERS
OF PUEBLO COUNTY, COLORADO
By
Chair
Dated this day of 200_.
ATTEST:
Clerk and Recorder
BOARD OF COUNTY COMMISSIONERS
OF EL O COUNTY, COLORADO
B
Derajs IIise Chair
Dated this'`._ ay of ¢c �ci^ , 200
. `
ATcg�EST
CtQ and Recorder
APPROVED AS TO FORM:
Pueblo County Attorney's Office
5 �
El Paso County Attorney's Off l
ADD SIGNATURE BLOCKS FOR ENTITIES AS APPROPRIATE
12
By signing below, the following entitv(ies) hereby ratify the Intergovernmental Agreement for
the lvlanagement and Conservation of Fountain Creek dated December li, 2008, and hereby join therein
as a Party to the IGA.
CITY" OF CO RA 0 RINGS
By:
iog Rivera, Mayor .
Dated this day of .200
ATT.FoS'Iti��t it t F i t n rrri :r� %:
C)
CITY OF FOUNTAIN
C
Jeri Howells, Mavor
Dated this day of , 200_.
ATTEST:
By:
City Clerk
APPROVED AS TO FORN4:
Fountain City Attorney's Office
l3
By signing below, the following entity(ies) hereby ratify the Intergovernmental Agreement for
the Management and Conservation of Fountain Creek dated December 15, 2008, and hereby join therein
as a Party to the IGA.
CITY OF COLORADO SPRINGS
By:
Lionel Rivera, Mayor
Dated this day of 200_
ATTEST:
By:
Kathryn M. Young, C.M.C., City Clerk
APPROVED AS TO FORM:
Colorado Springs City Attomey's Office
CITY OF FITArIN
By
Jeri K94ells, Mayor
v�
Dated this day of 4 d. ' 200 J
ATTEST:
APPROVED AS TO
13
CITY OF PUEBLQ
By. ?/G
Vera Ortegon, President of the City Council
Dated this 9`" day of March,
ATTEST:
0
Gina tlbjcher, MMC, City Clerk
APPROVED AS TO FORM:
Mon . . a�tl1/i :1'K -M& O
CITY OF MANITOU SPRINGS
By:
Eric Drummond, Mayor
Dated this day of , 200_
ATTEST:
in
Carol Lawson, City Clerk
APPROVED AS TO FORM:
Attorney for City of Manitou Springs
14
CITY OF PUEBLO
Mayor
Dated this day of , 200_.
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
Pueblo City Attorney's Office
CITY OF MANITOU SPRINGS
Eric ru do „
Dated this J day o , 200 - Z.
ATTEST:
By: d
Carol Lawson-,-City Clerk
APPROVED AS TO FORM:
Attorn6y for City of Manitou Springs
14
By:
Mayor
Dated this day of 200_.
ATTEST:
By:
Town Clerk
APPROVED AS TO FORM:
Attorney for Town of Green Mountain Falls
15
TO MONUMEN
By: 1
Mayor
TOWN OF MONUMENT
Mayor
Dated this day of 1 200 _
ATTEST:
By:
Town Clerk
APPROVED AS TO FORM:
Attorney for Town of Monument
TOWN OF'ff
By: U
Max r
Dated�hiis day of / 200
ATTE
By: Q
Pwn Clerk
APPROVED AS TO FORM:
At[omey Town of Green Mountain Falls
15
TOWN OF PA ER LAKE
By:
q yo
Dated thi — day of 14PIP ZL, 200 .
ATTEST:
By: e�
Town Clerk
APPRO T F RM:
Attorney or Town of Palmer Lake
LOWER ARKANSAS VALLEY WATER CONSERVATION DISTRICT
M
(Title)
Dated this day of 204_.
ATTEST:
M.
APPROVED AS TO FORM:
isle)
Attorney for Lower Arkansas Valley Water Conservation District
16
TOWN OF PALMER LAKE
By:
Mayor
Dated this day of 200 .
ATTEST:
By:
Town Clerk
APPROVED AS TO FORM:
Attorney for Town of Palmer Lake
LOWER ARKANSA VALLEY WATER CONSERVATION DISTRICT
By:
Cyr maul (Title)
Dated this � day of - - SArUct , , 200 .
ATTES :
Vl
rtle)
APPROVED
Lower
16
EXHIBIT A
COLORADO REVISED STATUTES
TITLE 32 SPECIAL DISTRICTS
Special Statutory Districts
Article 11. Urban Drainage and Flood Control Act, 32 -11 -101 to 32 -11 -817.
32 -11 -101 to 32 -11 -817 Edited and a new Part 11. 5, 32- 11.5 -101 et seq., specific to Fountain Creek
Watershed which shall be known and may be cited as the:
"Fountain Creek Watershed, Flood Control, and Greenway District."
Draft Key
• References to "district" or "urban district' have been changed to "Fountain Creek District'
• Some of the clause numbering differs from 32 -11 -101 et seq. due to repealed provisions
• References to Denver and adjacent counties have been changed to El Paso and Pueblo
counties
• Effective dates have been changed to July 6, 2009
• Wording in red and blue with underscoring is new language added to the existing Urban
Drainage District Statute 32 -11 -101 et seq.
• Wording in black is derived from the Urban Drainage District Statute 32 -11 -101 et seq.
)'GENERAL DISCLAIMER THE SIGNATORIES TO THE IGA ACKNOWLEDGE AND AGREE THAT
THIS EXHIBIT A IS VERY PRELIMINARY DRAFT PROPOSED LEGISLATION TO ESTABLISH AND
DEFINE THE FOUNTAIN CREEK WATERSHED DISTRICT. IT WILL BE REVISED BY THE
GOVERNING BOARD BASED ON INPUT FROM THE PARTIES TO THE IGA WITH THE INTENT
THAT IT BE CONSISTENT WITH THE PRINCIPLES EXPOUNDED IN THE IGA.I
PART I — GENERAL PROVISIONS
32- 11.5 -101. Short title.
This article shall be known and may be cited as the "Fountain Creek Watershed, Flood Control, and
Greenwav District."
32- 11.5 -102. Creation of District.
There is hereby created a district to be known and designated as the "Fountain Creek Watershed,
Flood Control and Greenwav District ° which shall be referred to herein as the "Fountain Creek
District."
32- 11.5 -103. Legislative Declaration.
17
1) The aeneral assembly herebv determines, finds, and declares that
(a) The Fountain Creek watershed including Fountain Creek, related wetlands, existing trails, and
recreational facilities is a unique and high quality watershed that is an important resource and asset to
the people of El Paso County Pueblo County, and the State of Colorado;
(b) It is necessary to address the flooding drainage, and erosion problems of Fountain Creek in El
Paso County and Pueblo County, and to statutorily establish the Fountain Creek District to address
such problems;
(c) There are many challenges arising from the nature of the Fountain Creek watershed including
torrential storms occurring intermittently in urban and rural areas that drain into Fountain Creek
resulting in increased potential for flood danger to property and persons within the urban and rural
areas of the Fountain Creek watershed
(d) It is appropriate to primarily manage administer, and fund the capital improvements necessary to
mitigate flooding sedimentation and erosion and to address water quality issues improve drainage,
fund the protection of open space and develop public recreational opportunities, including parks and
trails in the Fountain Creek Watershed by creating the Fountain Creek Watershed, Flood Control, and
Greenway District;
(e) The watershed is physically located in both El Paso County and Pueblo County, and crosses the
jurisdictional boundaries of the two counties and the cities of Colorado Springs, Fountain, and Pueblo:
therefore the Watershed includes large areas of both incorporated and unincorporated land, which
results in the fragmentation and proliferation of powers rights privileges and duties pertaining to storm
water, flood mitigation and attenuation and drainage within the Watershed among these public bodies,
which in turn results in inabilities of the public bodies to acquire suitable capital improvements for the
mitigation of such dangers and risks;
(f) All property to be acquired by the Fountain Creek District under this article shall be owned, operated,
administered, and maintained for and on behalf of all of the people of the Fountain Creek District;
(g) The creation of the Fountain Creek District by this article promotes the health, comfort, safety,
convenience, and welfare of all the people of the state and is of special benefit to the inhabitants of the
Fountain Creek District and the property therein;
(h) The provisions in this article of the purposes, powers, duties, privileges, immunities, rights, liabilities,
and disabilities concerning the Fountain Creek District serve a public use;
(i) The district created by this article is a body corporate and politic, a political subdivision of the state,
and a municipal corporation with the powers provided in this article;
Q) Any notice provided for in this article for any purpose is reasonably calculated to inform each person
of interest in any proceedings under this article which may directly and adversely affect his legally
protected interests, if any;
18
(k) A general law cannot be made applicable to the Fountain Creek District, and to properties, powers,
duties, privileges, immunities, rights, liabilities, and disabilities pertaining thereto as provided in this
article, because of the number of atypical factors and special conditions concerning them;
(1) The powers, privileges, and rights granted in this article, and the duties, immunities, liabilities, and
disabilities provided in this article comply in all respects with any requirement or limitation imposed by
any constitutional provision;
(m) For the accomplishment of the purposes provided in this section, the provisions of this article shall
be broadly construed.
32- 11.5 -104. Public Purpose.
The exercise of any power authorized in this article by the board on behalf of the Fountain Creek
District has been determined, and is declared to effect a public purpose; and any project authorized in
this article shall effect a public purpose.
32- 11.5 -105. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Acquisition" or "acquire" means the purchase, construction, reconstruction, lease, gift, transfer,
assignment, option to purchase, other contract, grant from the federal government, any public body, or
any other person, endowment, bequest, devise, installation, condemnation, and any other acquirement
(or any combination thereof) of the facilities, other property, any project, or an interest therein,
authorized by this article.
(2) This "article" means the "Fountain Creek Watershed Flood Control, and Greenway District."
(3) "Assess ", "assessment', or "special assessment' means the levy of a special assessment, or the
special assessment, against any tract specially benefited in an improvement district by any project,
which assessment shall be made on a front -foot, zone, area, or other equitable basis as determined by
the board; but in no event shall any assessment exceed the estimated maximum special benefits to the
tract assessed as determined by the board, as provided in section 32 -11.5 -634 (4).
(4) "Assessable property" means the tracts of land specially benefited in an improvement district by any
project the cost of which is wholly or partly defrayed by the Fountain Creek District by the levy of
assessments, except any tract owned by the federal government in the absence of its consent to the
assessment of any tract so owned, and except any street, alley, highway, or other public right -of -way of
a public body, as provided in section 32- 11.5 -660.
(5) "Assessment lien" means a lien on a tract in an improvement district created by resolution of the
Fountain Creek District to secure the payment of an assessment levied against that tract, as provided in
section 32 -11.5 -645.
(6) "Assessment unit' means a unit or quasi- improvement district designated by the board for the
purpose of petition, remonstrance, and assessment in the case of a combination of projects in an
improvement district, pursuant to section 32- 11.5 -606.
(7) 'Board" or "board of directors" or "Governing Board " , when not otherwise qualified, means the
board of directors of the Fountain Creek District.
19
(8) "Chairman" or "chairman of the board ", or any phrase of similar import means the de jure or de facto
presiding officer of the board and the Fountain Creek District, or his successor in functions, if any.
(8.5) "Citizens Advisory Group" of "CAG" means the citizens appointed by the board to represent
various interests identified herein whose purpose is to consult with and offer advice to the Board on
managing the Watershed.
(9) "Commercial bank" means a state or national bank or trust company which is a member of the
federal deposit insurance corporation, including without limitation any "trust bank" as defined in this
section.
(10) (a) "Condemnation" or "condemn" means the acquisition by the exercise of the power of eminent
domain of any property for the facilities, any project, or an interest therein, authorized in this article. The
board may exercise on behalf of the Fountain Creek District the power of eminent domain or dominant
eminent domain within or without or both within and without the Fountain Creek District in the manner
provided in articles 1 to 7 of title 38. C.R.S., as from time to time amended, except as otherwise
provided in this article. The district may take any property necessary to carry out any of the objects or
purposes of this article, whether such property is already devoted to the same use by any person other
than the federal government in the absence of its consent to any such taking, and may condemn any
existing works or improvements of any such person in the Fountain Creek District.
(b) The power of eminent domain vested in the board includes the power to condemn, in the name of
the Fountain Creek District, either the fee simple or any lesser estate or interest in any real property
which the board by resolution determines is necessary for carrying out the purposes of this article. Such
resolution is prima facie evidence that the taking of the fee simple, easement, or other lesser estate or
interest, as the case may be, is necessary.
(c) The district shall not abandon any condemnation proceedings subsequent to the date upon which it
has taken possession of the property being acquired.
(d) In the event the construction of any project authorized in this article, or any part thereof, makes
necessary the removal and relocation of any public utility, whether on private or public right -of -way, or
otherwise, the Fountain Creek District shall reimburse the owner of such public utility facility for the
expense of such removal and relocation, including the cost of any necessary land or rights in land.
(11) (a) "Corporate district" means any school district, junior college district, conservancy district,
drainage district, metropolitan district, water district, sanitation district, water and sanitation district,
mosquito control district, street improvement district, television relay and translator district, public
improvement district, general improvement district, fire protection district, metropolitan recreation
district, metropolitan park district, metropolitan recreation and park district, metropolitan water district,
health service district, metropolitan sewage disposal district, irrigation district, internal improvement
district, water conservation district, water conservancy district, or any other type of district constituting a
body corporate and politic and a political subdivision of the state.
(b) "Corporate district' does not include a "district' or "Fountain Creek District' as defined in this section
nor an "improvement district' as defined in this section.
(12) "Cost' or "cost of the project', or any phrase of similar import, means, in addition to the usual
connotations thereof, all or any part of the cost of the acquisition, improvement, and equipment (or any
20
combination thereof) of all or any part of a project of the Fountain Creek District and of all or any
property, rights, easements, licenses, privileges, franchises, and other agreements deemed by the
Fountain Creek District to be necessary or useful and convenient therefor or in connection therewith,
and all incidental expenses pertaining thereto, including without limitation at the option of the board and
as it may from time to time determine:
(a) The cost of demolishing, removing, or relocating any buildings, structures, or other facilities on land
acquired;
(b) The cost of acquiring any lands to which such buildings, structures, or other facilities may be moved
or relocated;
(c) The cost of equipment for the Fountain Creek District, including any project;
(d) The cost of installing or relocating or installing and relocating water lines, storm sewers, sanitary
sewers, and other utility lines and services;
(e) The costs of restoring any public street, highway, bridge, viaduct, or other public right -of -way,
stream of water, watercourse, ditch flume, pipeline, utility transmission line, or other public facilities to
their former state of usefulness as nearly as may be;
(f) Condemnation costs, including all preliminary expenses and other incidental expenses pertaining to
any condemnation;
(g) The cost of preliminary plans, other plans, specifications, studies, surveys, estimates of project cost
and of taxes, revenues, and assessments (or any combination thereof), economic feasibility reports,
and any other expenses necessary or incident to determining the feasibility or practicability of a project;
(h) The cost of other estimates, appraising, printing, advice, inspection, and other services rendered by
engineers, architects, financial consultants, attorneys -at -law, clerical help, and other employees and
agents of the Fountain Creek District, and other professional costs;
(i) Court costs and other legal expenses;
Q) The cost of making, publishing, posting, mailing, and otherwise giving any notice, and of filing and
recording instruments;
(k) The cost of acquiring any real property, including any easement or other right or interest therein, and
including the taking of any option;
(1) The cost of contingencies, operation and maintenance expenses, and other expenses of the
Fountain Creek District prior to and during the acquisition, improvement, and equipment (or any
combination thereof) of any project, and additionally during a period of not exceeding one year after the
completion of the project, as may be estimated and determined by the board in any resolution
authorizing the issuance of any district securities or other instrument pertaining thereto or in any
contract with any public body, the federal government, or otherwise;
(m) Such provision or reserves or both provision and reserves for working capital, operation and
maintenance expenses, replacement expenses, or for payment or security of principal of and interest
21
on any district securities during and after the acquisition, improvement, and equipment (or any
combination thereof) of any project, as the board may determine;
(n) Reimbursements to the federal government, the state, or any other public body or other person of
any moneys theretofore expended for the purposes of the Fountain Creek District, including such
expenditures for or in connection with a project;
(o) The cost of funding any notes, warrants, or interim debentures as provided in this article;
(p) The preparation of budgets, including without limitation the procedure preliminary thereto;
(q) The levy, collection, and disposition of special assessments, including without limitation the
preparation of preliminary rolls and assessment rolls;
(r) The levy, collection, and disposition of taxes;
(s) The fixing, collection, and disposition of revenues;
(t) All such other expenses as may be necessary or incident to the financing, acquisition, improvement,
equipment, and completion of the facilities, any project, any part thereof, or the placing of the same in
operation.
(13) (a) "County" means the county in the state of Colorado in which is situated any tract assessed or
other property to which the term "county" pertains, including, without limitation, El Paso County and
Pueblo County; and if such property at any time after July 6, 2009, is located in more than one county,
"county" means each county in which the property is located.
(b) Whenever the term "county" is used in connection with an election held by the Fountain Creek
District, or taxes levied by Fountain Creek District, or otherwise in connection therewith, the term
"county" means each county in which Fountain Creek District is located.
(14) "County assessor" means the de jure or de facto county assessor of each such county, or his
successor in functions, if any.
(15) "County clerk" means the de jure or de facto county clerk of each such county, or his successor in
functions, if any.
(16) "County treasurer" means the de jure or de facto county treasurer of each such county, or his
successor in functions, if any.
(17) "Director" means a de jure or de facto member of the board.
(18) "Disposal" or "dispose" means the sale, destruction, razing, loan, lease, grant, transfer,
assignment, option to sell, other contract, or other disposition (or any combination thereof) of facilities,
other property, or an interest therein, authorized in this article.
(19) (a) "District" means the Fountain Creek Watershed, Flood Control, and Greenway District created
by this article.
(b) "District" does not include the term "corporate district" nor the term "improvement district" as defined
in this section.
22
(20) "District securities" means bonds, temporary bonds, notes, warrants, and interim debentures
evidencing loans to or money due from the Fountain Creek District and authorized to be issued
pursuant to the provisions of this article.
(21) "Engineer" means any engineer in the permanent employ of the Fountain Creek District, or any
licensed professional engineer, or firm of such engineers, as from time to time determined by the board:
(a) Who has a wide and favorable repute for skill and experience in the field of designing and in
preparing plans and specifications for and supervising the construction of facilities like those which the
Fountain Creek District is authorized to acquire;
(b) Who is entitled to practice and is practicing under the laws of the state; and
(c) Who is selected, retained, and compensated by the board, in the name and on behalf of the
Fountain Creek District.
(22) "Equipment" or "equip" means the furnishing of all necessary or desirable, related, or appurtenant
machinery, furnishings, apparatus, paraphernalia, and other gear, or any combination thereof,
pertaining to any project or other property of the Fountain Creek District, or any interest therein,
authorized in this article, or otherwise relating to the Fountain Creek District's facilities.
(23) (a) "Executive officer" means the de jure or de facto mayor, chairman of the board, president of the
corporate district, or other titular head or chief official of a "public body" as defined in this section, or his
successor in functions, if any.
(b) "Executive officer" does not include a city manager, county manager, or other chief administrator of
a public body who is not its titular head.
(24) (a) "Facilities" means the drainage and flood control system of the Fountain Creek District,
consisting of all properties, real, personal, mixed, or otherwise, owned or acquired by the Fountain
Creek District through purchase, construction, or otherwise, and used in connection with such system
of the Fountain Creek District, and in any way pertaining thereto, whether situated within or without its
limits, or both within and without its limits.
(b) The facilities of the Fountain Creek District may, as the board from time to time determines, consist
of any natural and artificial watercourses for the collection, channeling, impounding, and disposition of
rainfall, other surface and subsurface drainage, and storm and flood waters, including without limitation
ditches, ponds, dams, spillways, retarding basins, detention basins, lakes, reservoirs, canals, channels,
levees, revetments, dikes, walls, embankments, bridges, inlets, outlets, connections, laterals, other
collection lines, intercepting sewers, outfalls, outfall sewers, trunk sewers, force mains, submains,
waterlines, sluices, flumes, syphons, sewer lines, pipes, other transmission lines, culverts, pumping
stations, gauging stations, stream gauges, rain gauges, engines, valves, pumps, meters, junction
boxes, manholes, other inlet and outlet structures, passenger cars, pickups, trucks, and other vehicles,
bucket machines, inlet and outlet cleaners, backhoes, draglines, graders, other equipment, apparatus,
fixtures, structures, and buildings, flood warning services, and appurtenant telephone, telegraph, radio,
and television apparatus, and other water diversion, drainage, and flood control facilities, and all
appurtenances and incidentals necessary, useful, or desirable for any such facilities (or any
combination thereof), including real and other property therefor.
23
(25) "Federal government" means the United States, or any department, agency, instrumentality, or
corporation thereof.
(26) "Fiscal year" for the purpose of this article means the twelve months commencing on the first day
of January of any calendar year and ending on the last day of December of the same calendar year.
(27) "Governing body" means the city council, city commission, board of commissioners, board of
trustees, board of directors, or other legislative body of a public body designated in this article in which
body the legislative powers of the public body are vested.
(28) "Governor" means the de jure or de facto governor of the state of Colorado, or his successor in
functions, if any.
(29) (a) "Gross revenues" or "gross pledged revenues" means all the revenues derived directly or
indirectly from service charges by the Fountain Creek District from the operation and use of and
otherwise pertaining to the facilities, or any part thereof, whether resulting from repairs, extensions,
enlargements, betterments, or other improvements to the facilities, or otherwise, and includes all
revenues received by the Fountain Creek District from the facilities, including, without limiting the
generality of the foregoing, all fees, rates, and other charges for the use of the facilities, or for any
service rendered by the Fountain Creek District in the operation thereof, or otherwise pertaining thereto,
as received by the Fountain Creek District and pledged wholly or in part for the payment of any district
securities issued under this article.
(b) "Gross revenues" or "gross pledged revenues" does not include:
(1) The proceeds derived from any assessments or taxes;
(II) Any moneys borrowed and used for the acquisition of capital improvements for or other acquisition
of the facilities; and
(111) Any moneys received as grants, appropriations, or other gifts from the federal government, the
state, or other sources, the use of which is limited by the grantor or donor to the construction of capital
improvements for or other acquisition of the facilities, except to the extent any such moneys are
received as service charges for the use of or otherwise pertaining to the facilities.
(30) (a) "Hereby ", "herein ", "hereinabove ", "hereinafter ", "hereof', "hereunder ", "herewith ", or any term
of similar import, refers to this article and not solely to the particular portion thereof in which such word
is used.
(b) "Heretofore" means before the adoption of this article.
(c) "Hereafter" means after the adoption of this article.
(31) "Holder" or any similar term, when used in conjunction with any coupons, any bonds, or any other
designated district securities, means the person in possession and the apparent owner of the
designated item if such obligation is registered to bearer or is not registered, or the term means the
registered owner of any such security which is registrable for payment if it is at the time registered for
payment otherwise than to bearer.
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(32) "Improvement" or "improve" means the extension, enlargement, betterment, alteration,
reconstruction, replacement, and other major improvement (or any combination thereof) of the facilities,
any property pertaining thereto, any project, or an interest therein, authorized in this article.
(33) (a) "Improvement district" means the geographical area within the Fountain Creek District
designated and delineated by the board, in which improvement district are located the facilities or
project, or an interest therein, the cost of which is to be defrayed wholly or in part by the levy of special
assessments, and in which improvement district is located each tract to be assessed therefor. An
improvement district may consist of noncontiguous areas. Improvement districts shall be designated by
consecutive numbers or in some other manner to identify separately each such district in the Fountain
Creek District.
(b) "Improvement district" does not mean the "Fountain Creek District" as defined in this section.
(34) (a) "Mailed notice ", "notice by mail ", or any phrase of similar import means the giving by the
engineer, district secretary, district treasurer, county treasurer, any deputy thereof, or other designated
person, as determined by the board or as otherwise provided in this article, of any designated written or
printed notice addressed to the last -known owner of each tract assessed or to be assessed or other
designated person at his last -known address, by deposit at least twenty days prior to the designated
hearing or other time or event, in the United States mails, postage prepaid, as first -class mail. The
failure to mail any such notice shall not invalidate any proceedings under this article.
(b) The names and addresses of such property owners shall be obtained from the records of the county
assessor or from such other source or sources as the engineer, district secretary, district treasurer,
county treasurer, any deputy thereof, or other person so giving notice deems reliable. Any list of such
names and addresses pertaining to any improvement district may be revised from time to time, but
such a list need not be revised more frequently than at twelve -month intervals
(c) Any mailing of any notice required in this article shall be verified by the affidavit or certificate of the
engineer, district secretary, district treasurer, county treasurer, the deputy thereof, or other person
mailing the notice, which verification shall be retained in the records of the Fountain Creek District at
least until all assessments and securities pertaining thereto have been paid in full or any claim is barred
by a statute of limitations.
(35) (a) "Municipality" means an incorporated town, city and county, or city, whether incorporated and
governed under general act or special charter.
(b) "Municipal" pertains to a municipality
(36) "Net revenues" or "net pledged revenues" means the gross pledged revenues remaining after the
deduction of the "operation and maintenance expenses" as defined in this section.
(37) "Newspaper" means a newspaper printed in the English language at least once each calendar
week.
(38) (a) "Operation and maintenance expenses ", or any phrase of similar import, means all reasonable
and necessary current expenses of the Fountain Creek District, paid or accrued, of operating,
maintaining, and repairing the facilities, including without limitation, at the Fountain Creek District's
option (except as by contract or otherwise limited by law):
25
(1) Engineering, auditing, reporting, legal, and other overhead expense of the Fountain Creek District
directly related to the administration, operation, and maintenance of the facilities;
(11) Property and liability insurance and fidelity bond premiums;
(111) Payments to pension, retirement, health, and hospitalization funds, and other insurance;
(IV) The reasonable charges of any paying agent, any copaying agent, and any other depositary bank
pertaining to any project, any bonds or other district securities pertaining thereto, or otherwise relating
to the facilities;
(V) Any taxes, assessments, excise taxes, or other charges which may be lawfully imposed on the
Fountain Creek District or its income or operations of the facilities under its control, or any privilege
relating to the facilities or their operation;
(VI) The costs incurred by the Fountain Creek District in the collection of any taxes, assessments, and
pledged revenues, and in making refunds of any taxes, assessments, or pledged revenues lawfully due
to others;
(VII) Expenses in connection with the issuance of district securities evidencing any loan to or other
obligation of the Fountain Creek District;
(VIII) The expenses and compensation of any trustee, receiver, or other fiduciary under this article or
otherwise;
(IX) Contractual services and professional services, salaries, labor, and the cost of materials and
supplies used for current operation, ordinary and current rentals of equipment, or other property; and
(X) All other administrative, general, and commercial expenses pertaining to the facilities
(b) "Operation and maintenance expenses" does not include any allowance for depreciation or any
amounts for capital replacements, renewals, major repairs, and maintenance items (or any combination
thereof) of a type not recurring annually or at shorter intervals; nor does it include: The costs of
extensions, enlargements, betterments, and other improvements (or any combination thereof), or any
reserves therefor; any reserves for operation, maintenance, or repair of the facilities; any allowance for
the redemption of any bond or other district security evidencing a loan or other obligation of the
Fountain Creek District, or the payment of any interest thereon, or any reserve therefor; any liabilities
incurred in the acquisition or improvement of any properties comprising any project (or any combination
thereof) or otherwise pertaining to the facilities, or otherwise; any other grounds of legal liability not
based on contract.
(41) "Ordinance" means the formal instrument by the adoption of which a "governing body" of any
"public body" as defined in this section takes formal legislative action, whether such instrument is in the
form of an ordinance, resolution, or other type of document.
(42) (a) 'Person" means a corporation, firm, other body corporate (including the federal government or
any public body), partnership, association, or individual, and also includes an executor, administrator,
trustee, receiver, or other representative appointed according to law.
(b) 'Person" does not include the "Fountain Creek District' as defined in this section
26
(43) 'Pledged revenues' or "revenues' means all or a portion of the gross pledged revenues. The
designated term indicates a source of revenues and does not necessarily indicate all or any portion or
other part of such revenues in the absence of further qualification.
(44) 'Project' means such part of the facilities of the Fountain Creek District as the board determines to
acquire and authorize at one time.
(45) "Property" means personal property and real property, both improved and unimproved.
(46) (a) 'Publication" or "publish" means three consecutive weekly publications in at least one
newspaper having general circulation in the Fountain Creek District.
(b) It is not necessary that an advertisement be made on the same day of the week in each of the three
weeks, but not less than fourteen days, excluding the day of first publication but including the day of the
last publication, shall intervene between the first publication and the last publication, and publication
shall be complete on the date of the last publication.
(47) (a) 'Public body" means the state of Colorado or any agency, instrumentality, or corporation
thereof, or any county, municipality, corporate district, housing authority, urban renewal authority, other
type of authority, the regents of the university of Colorado, the state board for community colleges and
occupational education, or any other body corporate and politic and political subdivision of the state.
(b) 'Public body" does not include the "federal government' nor the "Fountain Creek District' as defined
in this section.
(48) 'Real property" means:
(a) Land, including land under water;
(b) Buildings, structures, fixtures, and improvements on land;
(c) Any property appurtenant to or used in connection with land; and
(d) Every estate, interest, privilege, leasehold, easement, license, franchise, right -of -way, and other
right in land, legal or equitable, including, without limiting the generality of the foregoing, rights -of -way,
terms for years, and liens, charges, or encumbrances by way of judgment, mortgage, or otherwise, and
the indebtedness secured by such liens.
(49) "Revenues" means the "pledged revenues' as defined in this section.
(50) "Secretary" means the de jure or de facto secretary of the board and the Fountain Creek District,
or his successor in functions, if any.
(51) "Service charges' or "special fees" means the fees, rates, and other charges for the use of the
facilities of the Fountain Creek District, or for any service rendered by the Fountain Creek District in the
operation thereof, or otherwise pertaining thereto, as more specifically provided in section 32 -11.5 -306
and elsewhere in this article.
(51,5) "Small Municipalities' means the collective reference to the town councils of Green Mountain
Falls Manitou and Monument Colorado.
27
(52) "Special assessments" means "assessment" as defined in this section
(53) "State" means the state of Colorado; and, where the context so indicates, "state" means the
geographical area comprising the state of Colorado.
(54) "Taxes ", "taxation ", or "tax" means general (ad valorem) taxes.
(55) (a) "Taxpaying elector" and "elector" of a district have the meanings, respectively, as specified in
section 32 -1 -103 for "taxpaying elector" and "eligible elector'; except that to qualify under this article as
a taxpaying elector or as an elector of a district, a person must also be a resident of the Fountain Creek
District.
(b) A person who is obligated to pay taxes under a contract to purchase property in the Fountain Creek
District shall be considered as such an owner.
(c) The ownership of any property subject to the payment of a specific ownership tax on a motor vehicle
or trailer or of any other excise or property tax other than general (ad valorem) taxes shall not constitute
the ownership of property subject to taxation as provided in this article.
(55.5) "Technical Advisory Committee" or "TAC" means the advisory committee made up of technical
experts as defined herein appointed by the board to provide recommendations to the board regarding
public policy or expenditure of funds for the benefit of the Watershed
(56) (a) "Tract" means any lot or other parcel of land for assessment purposes, whether platted or
unplatted, regardless of lot or land lines.
(b) Lots, plots, blocks, and other subdivisions may be designated in accordance with any recorded plat
thereof; and all lands, platted and unplatted, shall be designated by a definite description, as provided
in section 32 -11.5 -659.
(57) "Treasurer" means the de jure or de facto treasurer of the board and the Fountain Creek District, or
his successor in functions, if any.
(58) "Trust bank" means a "commercial bank" as defined in this section, which bank is authorized to
exercise and is exercising trust powers, and also means any branch of the federal reserve bank.
(59) "United States" means the United States of America.
32- 11.5 -106. Construction.
(1) This article, except where the context by clear implication otherwise requires, shall be construed as
follows:
(a) Sections, subsections, paragraphs, and subparagraphs mentioned by number, letter, or otherwise
correspond to the respective articles, sections, subsections, paragraphs, and subparagraphs of this
article so numbered or otherwise so designated.
(b) The titles or headnotes applied to sections, subsections, paragraphs, and subparagraphs in this
article are inserted only as a matter of convenience and ease in reference and in no way define, limit, or
describe the scope or intent of any provision of this article.
WO
(c) Figures may be used instead of words, and words may be used instead of figures, in all notices,
proceedings, and other documents required by this article or otherwise pertaining hereto.
(d) No tract in an improvement district need be separately described except in the assessment roll
(e) Any cost or estimated cost may be stated as a designated amount per front foot, or per square foot,
or per other unit pertaining to the method of prorating costs and of computing assessments, or per lot of
a given size and proportionate amounts for other lots, except in the case of assessments.
32- 11.5 -107. Liberal Construction.
This article being necessary to secure and preserve the public health, safety, and general welfare, the
rule of strict construction shall have no application to this article, but this article shall be liberally
construed to effect the purposes and objects for which it is intended.
32- 11.5 -108. Sufficiency of Article.
(1) This article, without reference to other statutes of the state, except as otherwise expressly provided
in this article, shall constitute full authority for the exercise of powers granted in this article, including
without limitation the financing of any project authorized in this article wholly or in part and the issuance
of district securities to evidence such loans.
(2) No other act or law with regard to the authorization or issuance of securities or the exercise of any
other power granted in this article that provides for an election, requires an approval, or in any way
impedes or restricts the carrying out of the acts authorized in this article to be done shall be construed
as applying to any proceedings taken under this article or acts done pursuant to this article, except as
otherwise provided in this article.
(3) The provisions of no other law, either general, special, or local, except as provided in this article,
shall apply to the doing of the things authorized to be done in this article; and no public body shall have
authority or jurisdiction over the doing of any of the acts authorized in this article to be done, except as
otherwise provided in this article.
(4) No notice, consent, or approval by any public body or officer thereof shall be required as a
prerequisite to the sale or issuance of any district securities or the making of any contract or the
exercise of any other power under this article, except as provided in this article.
(5) The powers conferred by this article shall be in addition and supplemental to, and not in substitution
for, and the limitations imposed by this article shall not affect the powers conferred by, any other law.
(6) No part of this article shall repeal or affect any other law or part thereof, the intent of this article
being that it shall provide a separate method of accomplishing its objectives and not an exclusive one;
and this article shall not be construed as repealing, amending, or changing any such other law.
PART II —ADMINISTRATION
32- 11.5 -201. Creation of District.
There is hereby created a district to be known and designated as the "Fountain Creek Watershed,
Flood Control, and Greenway District."
29
32- 11.5 -202. Boundaries of the Fountain Creek District.
The area comprising the Fountain Creek District and the Watershed consists of the land located in the
counties of El Paso and Pueblo described as follows: Watershed Boundary Dataset, Hydraulic Unit
Code # 11020003 Fountain Creek Sub -basin of the Arkansas River, Colorado, available URL:
http://datagateway.nrcs.usda.gov.
32- 11.5 -203. Board of Directors or Governing Board
(1) All powers, rights, privileges, and duties vested in or imposed upon the Fountain Creek District shall
be exercised and performed by and through a local legislative body designated as the board of
directors.
(2) The board of directors of the Fountain Creek District may create an executive committee of the
board and may delegate and redelegate to such committee such power to act on behalf of the Fountain
Creek District as the board may determine by resolution.
(3) The exercise of all executive, administrative, and ministerial powers may be delegated and
redelegated by the board to officials and employees of the Fountain Creek District.
(4) The board shall consist of nine directors representing and appointed as depicted in the following
table:
Board
Count
Count
City of
City of
City of
Lower Ark
Small
Citizen
Member
Member
y of
y of El
Puebl
Colorad
Fountain
Valley
Muni's
at Large
of the
Puebl
Paso
0
o
Conserva
selected
Citizen
o
Springs
n -cy
Rep or
by
Advisory
District or
El Paso
Pueblo
Group
Pueblo
County
County
County
Citizen
& City
Citizen
Appoint-
Count
Count
City of
City of
City of
County of
City of
County
Jointly by
ed bv;
y of
y of El
Puebl
Colorad
Fountain
Pueblo
Colorad
of
County of
Puebl
Paso
0
0
o
Pueblo
El Paso &
o
Springs
Springs
& City of
County of
&
Pueblo
Pueblo
30
County
of E!
Paso
(5) (a) Except for the initial appointments of directors, or for any director chosen to fill any unexpired
term, and except as otherwise provided in section 32- 11.5 -204, the term of each director shall
commence on February 1 of a designated year as provided in this article and shall be for two years.
(b) Each director shall be chosen to serve such a two -year term ending on the last day of January of
such a year; and each director whose term so ends and otherwise remains qualified to serve as a
director shall serve until his successor has been duly chosen and qualified.
(6) The board of directors shall institute and maintain a systematic and uniform program of preventive
maintenance in the Fountain Creek District, which program shall be administered by said board of
directors and not by local governments.
32- 11.5 -204. Regular Appointments.
(1) The board of directors or Governing Board shall be chosen as provided in this section.
(2) (a) One director shall be appointed to the board by the El Paso County Board of County
Commissioners and one director shall be appointed to the board by the Pueblo County Board of County
Commissioners.
(b) Each director appointed pursuant to this subsection (2) shall be a member of the board of county
commissioners appointing them to be a director and shall remain as such during his term of office as a
director.
(3) The City Council of the cities of Colorado Springs Fountain and Pueblo shall each appoint one
director to the board.
(4) The town councils of Green Mountain Falls Manitou, and Monument (collectively the "Small
Municipalities ") may nominate candidates from whom the Board of County Commissioners of El Paso
County and the Colorado Springs City Council may iointly select and appoint one (1) director to the
board: however, if no nominees are made by the Small Municipalities or if no Small Municipalities
execute this IGA the El Paso County Commissioners and Colorado Springs City Council may iointly
select and appoint one (1) El Paso County citizen to serve as a director.
(5) The Lower Arkansas Valley Water Conservancy District shall not have appointing authority to the
board The Board of County Commissioners of Pueblo County may appoint one (1) director from the
Lower Arkansas Valley Water Conservancy District or may select and appoint one (1) Pueblo County
citizen to serve as a director.
(6) One (1) Citizen at Large director shall be iointly appointed from Pueblo County by the Board of
County Commissioners of Pueblo County and the Pueblo City Council.
31
(7) One (1) additional citizen director shall be jointly appointed by the Board of County Commissioners
of El Paso County and the Board of County Commissioners of Pueblo County from the Citizen Advisory
Group.
(8) Each appointing governing body (e.g., Board of County Commissioners or City Council) shall select
and appoint their respective director in any lawful manner as determined by that governing body. Each
entity shall designate and provide notice to the other entities of the identity of its respective director,
and any designee or alternate it may choose to name within thirty (30) days after the appointment.
Each appointing governing body may also name an alternate director to attend meetings if the primary
director is unavailable to attend or has a conflict of interest.
(9) There shall hereby be established a Fountain Creek District Citizens Advisory Group ( "CAG ") as
defined in the board's Bylaws.
(10) The board shall hereby appoint a Technical Advisory Committee ( "TAC ") as defined as defined in
the board's Bylaws.
(11) The board shall hire an engineer, and may hire other staff and technical and professional support
as may be necessary.
(12) The board may appoint an Executive Director or Manager for the Fountain Creek District. This
Executive Director or Manager shall have powers granted by the board which may include but are not
limited to the ability to hire consultants and/or staff, as needed to carry out the day -to -day operations
of the District and to carry out the spending plan adopted by the board. The board may contract for
professional services as deemed necessary to administer and implement the purposes of this
legislation.
32- 11.5 -205. Filling Vacancies.
Upon a vacancy occurring in the board by reason of a director's death, resignation, termination of office
as a city council member, county commissioner, or executive officer, and is not an officer or in the
regular employment of any public body, as the case may be, in contravention of any provision in section
32- 11.5 -204, or for any other reason, the vacancy for the unexpired term of office of such director, upon
the creation of such vacancy, shall be filled by the authority appointing him or her by the appointment
forthwith of a successor director to serve for such unexpired term in the manner provided for such
appointing authority in section 32 -11.5 -204 for regular appointments, except as otherwise provided in
this section.
32- 11.5 -206. Organizational Meetings
(1) Except for the first board, each board shall meet in January in each year at a regular place of
meeting of the board within the Fountain Creek District for the qualification of new directors and for the
selection of new officers. The board shall elect the following officers at its first meeting, and thereafter,
at the annual meeting in January of each calendar year. Officers shall be elected by a majority vote of
a quorum of the directors whether by voice vote or written ballot as may be determined by the
Chairperson.
(a) Chairperson The Chairperson shall preside over all meetings of the Governing Board and see that
the meeting and debate are conducted in an orderly and expeditious manner. The Chairperson shall
32
sign all contracts agreements and legal documents of the Board, and in general shall perform all
duties incident to the office of Chairperson.
(b) Vice - Chairperson The Vice -chair shall assume the duties of the Chair in his /her absence.
(2) Each director, before entering upon his official duties, shall take and subscribe an oath or affirmation
before an officer authorized to administer oaths that he will support the constitution of the United States
and the constitution and laws of the state, and that he will faithfully and impartially discharge the duties
of his office to the best of his ability, which oath or affirmation shall be filed in the office of the secretary
of state.
32- 11.5 -207. Fidelity Bonds.
(1) Each director shall, before entering upon his official duties, give a fidelity bond to the Fountain
Creek District in the sum of ten thousand dollars with good and sufficient surety to be approved by the
governor, conditioned for the faithful performance of all of the duties of his office, without fraud, deceit,
or oppression, and conditioned for the accounting for all moneys and property coming into his hands,
and the prompt and faithful payment of all moneys and the delivery of all property coming into his
custody or control belonging to the Fountain Creek District to his successors in office.
(2) Premiums on all fidelity bonds provided for in this section shall be paid by the Fountain Creek
District, and all such bonds shall be kept on file in the office of the secretary of state.
32- 11.5 -208. Board's Administrative Powers.
(1) The board, on behalf and in the name of the Fountain Creek District, has the following powers:
(a) To fix the time and place at which its regular meetings shall be held within the Fountain Creek
District and to provide for the calling and holding of special meetings;
(b) To adopt and amend or otherwise modify bylaws and rules of procedure;
(c) To elect one director as chairperson of the board and of the Fountain Creek District and another
director as vice chairperson of the board and of the Fountain Creek District, and to appoint a secretary
and a treasurer of the board and of the Fountain Creek District, each of which two positions may be
filled by a person who is, or is not, a director, and both of which positions may be filled by one person;
(c)(1) The Secretary shall keep a written or recorded record of the minutes of all meetings, ensure that
all notices required by law are duly given and posted shall serve as the custodian of board records
shall attest to documents as the need arises and shall perform such other functions as may be
prescribed by the board The Secretary may be an employee of the board, an employee of a
represented governing entity, an independent contractor, a volunteer, or a Director:
(d) To prescribe by resolution a system of business administration, and to create all necessary offices,
and to establish and reestablish the powers, duties, and compensation of all officers, agents, and
employees and other persons contracting with the Fountain Creek District subject to the provisions of
section 32 -11.5 -212; but, except as may be otherwise therein provided, such compensation shall be
established at prevailing rates of pay for equivalent services;
33
(e) To require and fix the amount of all official fidelity and completion bonds as may be necessary in the
opinion of the board for the protection of the funds and property of the Fountain Creek District, subject
to the provisions of section 32 -11.5 -207;
(f) To prescribe a method of auditing and allowing or rejecting claims and demands, except as provided
in section 32 -11.5 -801 and elsewhere in this article;
(g) To provide a method for the letting of contracts on a fair and competitive basis for the construction
of works, the facilities, or any project, or any interest therein, or the performance or furnishing of labor,
materials, or supplies as required in this article and to require a contractor's bond in the manner
required of a school board and a school district in sections 38 -26 -101 and 38 -26 -105 to 38 -26 -107,
C.R.S., as from time to time amended;
(h) To designate an official newspaper published in the Fountain Creek District and to publish any
notice or other instrument in any additional newspaper when the board deems it necessary to do so;
(i) To make and pass resolutions and orders on behalf of the Fountain Creek District, not repugnant to
the provisions of this article, necessary or proper for the government and management of the affairs of
the Fountain Creek District, for the execution of the powers vested in the Fountain Creek District, and
for carrying into effect the provisions of this article;
Q) To appoint, by written resolution, one or more persons to act as custodians of the moneys of the
Fountain Creek District for purposes of depositing such moneys in any depository authorized in section
24 -75 -603, C.R.S. Such persons shall give surety bonds in such amounts and form and for such
purposes as the board requires;
(k) To advocate on behalf of the Watershed to mitigate flooding, erosion and sedimentation, address
water quality to provide a healthy riparian habitat with recreational amenities;
(1) To ensure fair and equitable allocation of the annual costs of maintaining and administering the
Fountain Creek District;
(m) To provide for funding of the Watershed District in order to manage, administer, and fund the
capital improvements and maintenance proiects necessary to improve drainage mitigate flooding
sedimentation and erosion address water quality issues and develop public recreational opportunities
including parks and trails in the Watershed District.
(n) To prepare and submit ballot language and position statements to place appropriate funding
measures) if any, before the appropriate electors of Pueblo County and /or El Paso County;
(o) To provide information to educate the public concerning the purposes and benefits of the Fountain
Creek District.
32 -11.5 -209. Records of the Board.
(1) On all resolutions and orders, the roll shall be called, and the ayes and noes shall be recorded. All
resolutions and orders as soon as may be after their passage, shall be recorded in the records of the
Clerk and Recorder's Offices of El Paso and Pueblo Counties and shall be recorded in a book kept by
the Fountain Creek District for that purpose and be authenticated by the signature of the presiding
officer of the board and the secretary.
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(2) Every legislative act of the board of a general or permanent nature shall be by resolution
(3) The book of resolutions and orders shall be a public record. A record shall also be made of all other
proceedings of the board, minutes of the meetings, certificates, contracts, bonds given by officers,
employees, and any other agents of the Fountain Creek District, and all corporate acts, which record
shall also be a public record.
(4) The treasurer shall keep strict and accurate accounts of all moneys received by and disbursed for
and on behalf of the Fountain Creek District in a permanent record, which also shall be a public record.
(5) Any permanent record of the Fountain Creek District shall be open for inspection by any elector of
the Fountain Creek District by any representative of the federal state or local governing body, or an
interested party pursuant to the provisions of the Colorado Open Records Act C.R.S. 24 -72 -100.0 et
sec .
(6) All records are subject to audit as provided by law for political subdivisions of the state.
32 -11.5 -210. Meetings of the Board.
(1) All meetings of the board the TAC and the CAG shall be held within the Fountain Creek District and
shall be open to the public; however, the board the TAC and the CAG may meet in executive session
as may be allowed under C R.S 24 -6- 402(4) and other relevant provisions of the Open Meetings Law,
and such executive sessions shall not be open to the public.
(2) All meetings of the board the TAC and the CAG shall comply with all applicable provisions of the
Colorado Open Meetings Law C.R.S. 54 24 -6 -401 et sea., and shall provide opportunities for public
input by, at a minimum permitting the public to address the Governing Board in open meetings. The
Board shall adopt procedures for calling emergency meetings in conformity with the open Meetings
Law.
(3) The directors or any committee designated by the board may participate in any meeting of such
board or committee by means of a telephone conversation or similar communications equipment by
which all persons participating in the meeting can hear each other at the same time Such participation
shall constitute presence in person at the meeting Any such telephone meeting shall conform to the
Open Meetings Law C.R.S. S &24 -6 -401 et seg., including the provision of proper notice as may be
relevant and a facility to permit members of the public in attendance to hear the proceedings.
(4) A maiority of the directors shall constitute a quorum for the transaction of business by the board
unless a different number is set by resolution of the board at the Annual Meeting. Except as otherwise
provided herein or in the Bylaws the affirmative vote of a maiority of a quorum of the board of directors
shall be sufficient to conduct the business of the board If less than a quorum is present at a meeting,
the Chairperson or another officer may and compel the attendance of absent members in such manner
and under such penalties as the board may provide or may adjourn the meeting to a different time and
place and in such case the Chairperson shall notify absent directors of the time and place of such
adiourned meeting
(5) The board shall adopt policy or spending resolutions only by a super - majority vote as shown in the
Table below:
35
Board Members Present
2
1 3
1 4
1 5
1 6
1 7
1 8
9
Votes Required for Approval
2
2
3
4
4
5
6
7
(6) Each director or their alternate shall be entitled to one vote. Voting by proxy shall not be permitted.
32- 11.5 -211. Compensation of Directors.
(1) (a) Directors will not receive a salary or compensation or reimbursement for any expenses incurred
in the performance of their duties other than as may be provided by each director's respective
organization at the sole discretion of that organization whom the Director represents or unless
authorized by the board
(b) For the purposes of this subsection (1), attendance by an alternate, when authorized in this article,
shall be considered as attendance by the director.
(2) No director shall receive any compensation as an officer, engineer, attorney, employee, or other
agent of the Fountain Creek District.
(3) The board may authorize the reimbursement of any director or alternate for expenses incurred and
pertaining to the activities of the Fountain Creek District.
32- 11.5 -212. Conflicts of Interest Prohibited.
(1) No director, officer, employee, or agent of the Fountain Creek District shall be interested in any
contract or transaction with the Fountain Creek District, except in his official representative capacity or
as is provided in his contract of employment with the Fountain Creek District, subject to the provisions
of section 32- 11.5 -211.
(2) Neither the holding of any office or employment in the government of any public body or of the
federal government nor the owning of any property within the state, within or without the Fountain
Creek District, shall be deemed a disqualification for membership on the board or employment by the
Fountain Creek District or a disqualification for compensation for services as a director or as an officer,
employee, or agent of the Fountain Creek District, except as provided in section 32- 11.5 -211 and
elsewhere in this article.
(3) Directors shall disqualify themselves from voting on any issue with respect to which the director has
a conflict of interest in compliance with C.R.S. 0 18 -8 -308 24 -18 -108.5 and 24 -18 -110. Any
appointing body may name an alternate director to cure the temporary disqualification, which alternate
may vote in place of their disqualified director.
32- 11.5 -213. Authorization of Facilities.
(1) The district, acting by and through the board, may acquire, improve, equip, relocate, maintain, and
operate the facilities, any project, or any part thereof for the benefit of the Fountain Creek District and
the inhabitants thereof, after the board has made such preliminary studies and otherwise taken such
action as it determines to be necessary or desirable as preliminaries thereto.
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(2) When a comprehensive program for the acquisition of facilities for the Fountain Creek District
satisfactory to the board is available, such program shall be tentatively adopted. The program need
only describe the proposed facilities in general terms and not in detail.
(3) A public hearing on the proposed program shall be scheduled, and notice of the hearing shall be
given by publication. After the hearing and any adjournments thereof which may be ordered, the board
may either require changes to be made in the program as the board considers desirable, or the board
may approve the program as prepared.
(4) If any substantial changes to the comprehensive program are ordered at any time, in the original
acquisition of the facilities or in any improvement thereto, or otherwise, a further hearing shall be held
pursuant to notice which shall be given by publication.
(5) Such a comprehensive program may consist of one project or of more than one project. A public
hearing need not be held on each such project if it implements such a comprehensive program on
which a public hearing has been held.
32- 11.5 -214. Implementing Powers.
The board, in connection with the facilities of the Fountain Creek District and any project, may from time
to time condemn (as limited herein) otherwise acquire, improve, equip, operate, maintain, and dispose
of property within or without or both within and without the Fountain Creek District.
32- 11.5 -215. Additional Powers of the District Jurisdiction and Land Use Authority.
(1) The district has the following powers
(a) To have duties, privileges, immunities, rights, liabilities, and disabilities pertaining to a body
corporate and politic and constituting a municipal corporation and political subdivision of the state
established as an instrumentality exercising public and essential governmental and proprietary
functions to provide for the public health, safety, and general welfare; but, the Fountain Creek District
shall not have the power to construct, condemn, purchase, acquire, lease, add to, maintain, or conduct
and operate a water works to provide domestic, municipal, and industrial water to urban areas;
(b) To have perpetual existence and succession;
(c) To adopt, have, and use a corporate seal and to alter the same at pleasure;
(d) To sue and to be sued and to be a party to suits, actions, and proceedings;
(e) To commence, maintain, intervene in, defend, compromise, terminate by settlement or otherwise,
and otherwise participate in and assume the cost and expense of any and all actions and proceedings
begun and pertaining to the Fountain Creek District, its board, its officers, agents, or employees or any
of the Fountain Creek District's powers, duties, privileges, immunities, rights, liabilities and disabilities,
the facilities or any project of the Fountain Creek District, or any property of the Fountain Creek District;
(f) To enter into contracts and agreements, including but not limited to contracts with the federal
government, the state, and any other public body;
37
(g) To trade, exchange, purchase, condemn, and otherwise acquire, operate, maintain, and dispose of
real property and personal property, including interests therein, either within or without or both within
and without the territorial limits of the Fountain Creek District.
2) The iurisdiction and land use authoritv of th District are as follows
(a) Within the Corridor. The Fountain Creek District shall have iurisdiction to accept and manage
funding for and to manage and construct stream improvements in the Watershed defined herein and
to have land use authority within the corridor as defined in this Paragraph.
(b) Outside of the corridor, the District's land use authority is limited to discretionary and advisory
only however, all represented governmental entities shall be required to provide notice to and accept
comment from the District regarding land use applications for proiects located outside of the corridor
that in the opinion of the applicable represented governmental entity's Planning Director or their
designee will have a direct or indirect impact on the Watershed Each represented governmental entity
shall send notice to the District identifying their Planning Director or designee The District at its
discretion may also request to review land use applications of any represented governmental entity for
proiects located outside of the corridor that it believes may directly or indirectly impact the Watershed.
The corridor as discussed in this Paragraph is defined as a corridor along Fountain Creek initially, the
One Hundred (100) Year Floodplain as that term is defined by the United States Federal Emergency
Management Agency (FEMA 100 -year floodplain) and further identified on maps promulgated by that
agency, limited to those floodplains in El Paso County which lie South (downstream) of the municipal
limits of the City of Fountain and the floodplain in Pueblo County lying North (upstream) of the
municipal limits of the City of Pueblo Other governmental entities and their respective governing
bodies may consent to iurisdiction of the District and add property to the jurisdictional corridor. The
represented governmental entities shall also have the option of adding additional sections of the
Watershed within their respective jurisdictional boundaries to the iurisdiction of the District.
(3) All references to "condemnation" or "eminent domain" herein are limited by this provision without
further specific reference Eminent domain authority is limited to property that is (1) located within the
100 -year flood plain of the Watershed District and (2) necessary for flood control and drainage (not
development of recreational facilities which should be by consensual conveyance).
(4) All references to "annexation" herein are limited by this provision and the provisions in Part VII
without further specific reference Annexations shall only be allowed by petition as set forth in Part VII.
32- 11.5 -216. Financial Powers of the District. [The provisions below are subject to revision by the
Governing Board based on input from the Parties to the IGA and shall be consistent with the principles
expounded in the IGA.]
(1) The district also has the following powers:
(a) To provide funding to support the District Since all citizens of both Pueblo and El Paso Counties
will benefit from a restored and enhanced watershed the funding of the Fountain Creek District will be
derived from both El Paso and Pueblo Counties.
(b) To seek to provide cooperation financial and technical assistance throughout the Watershed.
M
(c) To borrow money and to issue district securities evidencing any loan to or amount due by the
Fountain Creek District, to provide for and secure the payment of any district securities and the rights of
the holders thereof, and to purchase, hold, and dispose of district securities, as provided in this article;
(d) To fund or refund any loan or obligation of the Fountain Creek District, and to issue funding or
refunding securities to evidence such loan or obligation without any election, except as provided in this
article;
(e) (1) To levy and cause to be collected taxes on and against all taxable property within the Fountain
Creek District; except that any levy, except as provided in subparagraph (11) of this paragraph (c), in
excess of one mill shall require the favorable vote of a majority of the electors of the Fountain Creek
District voting on the question, subject to the limitations provided in paragraph (d) of this subsection (1),
by certifying, in accordance with the schedule prescribed by section 39 -5 -128, C.R.S., in each year in
which the board determines to levy taxes, to the body having authority to levy taxes within each county
wherein the Fountain Creek District has any territory, the rate so fixed, with directions that, at the time
and in the manner required by law for levying taxes for other purposes, such body having authority to
levy taxes shall levy such taxes upon the valuation for assessment of all taxable property within the
Fountain Creek District, in addition to such other taxes as may be levied by such body, as provided in
this section. Not more than one -tenth of a mill shall be used for engineering and operations of the
Fountain Creek District, not more than four - tenths of a mill shall be used for capital construction, and
not more than four - tenths of a mill shall be used for maintenance and preservation of floodways and
floodplains.
(1.5) In addition to the financial powers and limitations set forth in subparagraph (1) of this paragraph (c)
and notwithstanding the limitations set forth in paragraph (d) of this subsection (1), the Fountain Creek
District shall have the power to levy and cause to be collected an additional tax not to exceed one -tenth
of a mill upon the valuation for assessment of all taxable property within those portions of El Paso and
Pueblo counties lying within the Fountain Creek District. The additional tax shall be collected in the
manner set forth in subparagraph (1) of this paragraph (c). The funds derived from such levy shall be
used for the maintenance of and any improvements on that portion of Fountain Creek which lies within
the Fountain Creek District.
(11) No levy authorized by this article for the payment of the principal of, any prior redemption premiums
due in connection with, or the interest on any bonds or other securities issued under this article,
whether general obligations or special obligations, shall be subject to the election requirements of
subparagraph (1) of this paragraph (c), but all such levies shall be subject to the limitations provided in
paragraph (d) of this subsection (1).
(d) To levy taxes for any fiscal year without limitation as to rate or amount for the payment of any debt
of the Fountain Creek District authorized at an election as provided in this article, except as otherwise
provided by sections 32- 11.5 -564 and 32 -11.5 -566, in accordance with section 32- 11.5 -533, and
evidenced by the Fountain Creek District's interim debentures, bonds, or other contract constituting a
general obligation of the Fountain Creek District, for a term exceeding one year, and between the
Fountain Creek District and the federal government or any public body (or any combination thereof), as
provided in this section, but otherwise to levy taxes for any fiscal year subject to the following
limitations:
Purpose of levy - Mill limitation
39
To defray operation and maintenance expenses: one -half mill
To defray costs of capital improvements: one mill
To accumulate funds as additional security for payment of assessment bonds: one mill
Maximum annual non -debt levy: two and one -half mills;
(f) To fix, from time to time increase or decrease, collect, and cause to be collected rates, fees, and
other service charges pertaining to the facilities of the Fountain Creek District, including without
limitation minimum charges and charges for availability of the facilities or services relating thereto; to
pledge such revenues for the payment of district securities; and to enforce the collection of such
revenues by civil action or by any other means provided by law;
(g) To levy, collect, and cause to be collected assessments fixed against specially benefited real
property in any improvement district within the Fountain Creek District as provided in this article;
(h) To deposit any moneys of the Fountain Creek District in any depository authorized in section 24 -75-
603, C.R.S.;
(i) To invest and reinvest any surplus money in the Fountain Creek District's treasury, including such
moneys in a sinking or reserve fund established for the purpose of retiring any district securities, not
required for the immediate necessities of the Fountain Creek District in securities meeting the
investment requirements established in part 6 of article 75 of title 24, C.R.S., by direct purchase of any
issue of such securities, or part thereof, at the original sale of the same, or by the subsequent purchase
of such securities, except as otherwise provided in section 32- 11.5 -520 or elsewhere in this article;
0) To redeem at maturity and to sell from time to time such securities thus purchased and held, so that
the proceeds may be applied to the purposes for which the money with which such securities were
originally purchased was placed in the treasury of the Fountain Creek District;
(k) To reinvest the proceeds of any such sale in securities as provided in paragraph (h) of this
subsection (1) and otherwise in this article.
(1) Until the District has sufficient funding to operate independent of funding from the represented
governmental entities said represented governmental entities will provide appropriate staff, resources,
and funding support to the District Said represented governmental entities will fund independent staff
or pledge to support the District with their own employees or contribute funding as deemed appropriate
and that is fair and equitable.
(m) In accord with the Colorado Constitution or the city charter of the respective represented
governmental entities performance of each governmental entity's obligations under this Act is
expressly subiect to appropriation of funds by the respective governing body of each governmental
entity In the event funds are not appropriated in whole or in part sufficient for performance of a
governmental entity's obligations under this Act or appropriated funds may not be expended due to
applicable spending limitations then performance of said governmental entity under this Act shall be
null and void by operation of law, and said governmental entity shall thereafter have no liability for
compensation or damages to any person in excess of said governmental entity's authorized
appropriation for this Act or the applicable spending limit whichever is less Any represented
governmental entity that is subject to this Act shall notify all other represented governmental entities
40
and the District as soon as reasonably practicable in the event of non - appropriation or in the event a
soendina limitation becomes applicable.
32- 11.5 -217. Miscellaneous Powers.
(1) The district also has the following powers
(a) To hire and retain officers, agents, employees, engineers, attorneys, and any other persons,
permanent or temporary, necessary or desirable to effect the purposes of this article, to defray any
expenses incurred thereby in connection with the Fountain Creek District, and to acquire office space,
equipment, services, supplies, fire and extended coverage insurance, use and occupancy insurance,
workers' compensation insurance, property damage insurance, public liability insurance for the
Fountain Creek District and its officers, agents, and employees, and other types of insurance, as the
board may determine; but, no provision in this article authorizing the acquisition of insurance shall be
construed as waiving any immunity of the Fountain Creek District or any director, officer, or agent
thereof otherwise existing under the laws of the state;
(b) To pay or otherwise to defray the cost of a project;
(c) To pay or otherwise to defray and to contract so to pay or defray, for any term not exceeding fifty
years, without an election, except as otherwise provided in this article, the principal of, any interest on,
and any other charges pertaining to any securities or other obligations of the federal government, any
public body, or other person incurred in connection with any property thereof subsequently acquired by
the Fountain Creek District and relating to its facilities;
(d) To establish, operate, and maintain facilities within the Fountain Creek District across or along any
public street, highway, bridge, viaduct, or other public right -of -way, or in, upon, under, or over any
vacant public lands, which public lands are or may become the property of a public body, without first
obtaining a franchise from the public body having jurisdiction over the same; but the Fountain Creek
District shall cooperate with any public body having such jurisdiction, shall promptly restore any such
street, highway, bridge, viaduct, or other public right -of -way to its former state of usefulness as nearly
as may be, and shall not use the same in such manner as permanently to impair completely or
unnecessarily the usefulness thereof,
(e) To adopt, amend, repeal, enforce, and otherwise administer such reasonable resolutions, rules,
regulations, and orders as the Fountain Creek District deems necessary or convenient for the
operation, maintenance, management, government, and use of the Fountain Creek District's facilities
and any other drainage and flood control facilities under its control, whether situated within or without or
both within and without the territorial limits of the Fountain Creek District;
(f) (1) To adopt, amend, repeal, enforce, and otherwise administer under the police power, but only to
the extent as allowed under jurisdiction and land use authority in section 32- 11.5- 215(2)(b). such
reasonable flood -plain zoning resolutions, rules, regulations, and orders pertaining to properties within
the Fountain Creek District of any public body or other person (other than the federal government)
reasonably affecting the collection, channeling, impounding, or disposition of rainfall, other surface and
subsurface drainage, and storm and flood waters (or any combination thereof), including without
limitation variances in the event of any practical difficulties or unnecessary hardship and exceptions in
the event of appropriate factors, as the board may from time to time deem necessary or convenient. In
the event of any conflict between any flood -plain zoning regulation adopted under this section and any
41
flood -plain zoning regulation adopted by any other public body, the more restrictive regulation shall
control.
(II) No such resolution, rule, regulation, or order shall be adopted or amended except by action of the
board on the behalf and in the name of the Fountain Creek District after a public hearing thereon is held
by the board, in connection with which any public body owning drainage and flood control facilities in
the area involved or otherwise exercising powers affecting drainage and flood control therein and other
persons of interest have an opportunity to be heard, after mailed notice of the hearing is given by the
secretary to each such public body and after notice of such hearing is given by publication by the
secretary to persons of interest, both known and unknown.
32 -11.5 -218. Cooperative Powers.
(1) Subject to the provisions of sections 32- 11.5 -533 and 32- 11.5 -534, the Fountain Creek District also
has the following powers:
(a) To accept contributions or loans from the federal government for the purpose of financing the
planning, acquisition, improvement, equipment, maintenance, and operation of any enterprise in which
the Fountain Creek District is authorized to engage, and to enter into contracts and cooperate with, and
accept cooperation from, the federal government in the planning, acquisition, improvement, equipment,
maintenance, and operation, and in financing the planning, acquisition, improvement, equipment,
maintenance, and operation of any such enterprise in accordance with any legislation which congress
may adopt, under which aid, assistance, and cooperation may be furnished by the federal government
in the planning, acquisition, improvement, equipment, maintenance, and operation, or in financing the
planning, acquisition, improvement, equipment, maintenance, and operation of any such enterprise,
including without limitation costs of engineering, architectural, and economic investigations and studies,
surveys, designs, plans, working drawings, specifications, procedures, and other action preliminary to
the acquisition, improvement, or equipment of any project, and to do all things necessary in order to
avail itself of such aid, assistance, and cooperation under any federal legislation;
(b) To enter without any election into joint operating or service contracts and agreements; acquisition,
improvement, equipment, or disposal contracts; or other arrangements for any term not exceeding fifty
years with the federal government and any public body (or any combination thereof), concerning the
facilities and any project or property pertaining thereto, whether acquired by the Fountain Creek District,
by the federal government, or by any public body; and to accept grants and contributions from the
federal government, any public body, or any other person in connection therewith;
(c) To enter into and perform without any election, when determined by the board to be in the public
interest, contracts and agreements, for any term not exceeding fifty years, with the federal government,
any public body, or any other person for the provision and operation by the Fountain Creek District of
any drainage and flood control facilities pertaining to such facilities of the Fountain Creek District or any
project relating thereto and the payment periodically thereby to the Fountain Creek District of amounts
at least sufficient, if any, in the determination of the board, to compensate the Fountain Creek District
for the cost of providing, operating, and maintaining such facilities serving the federal government, such
public body, or such other person, or otherwise;
(d) To enter into and perform without any election contracts and agreements with the federal
government, any public body, or any other person for or concerning the planning, construction, lease or
other acquisition, improvement, equipment, operation, maintenance, disposal, and the financing of any
42
property pertaining to the facilities of the Fountain Creek District or to any project of the Fountain Creek
District, including but not necessarily limited to any contract or agreement for any term not exceeding
fifty years;
(e) To cooperate with and act in conjunction with the federal government or any of its engineers,
officers, boards, commissions, or departments, or with the state or any of its engineers, officers,
boards, commissions, or departments, or with any other public body or any other person in the
acquisition, improvement, or equipment of any facilities or any project authorized for the Fountain Creek
District or for any other works, acts, or purposes provided for in this article, and to adopt and carry out
any definite plan or system of work for any such purpose;
(f) To cooperate with the federal government or any public body by an agreement therewith by which
the Fountain Creek District may:
(1) Acquire and provide, without cost to the cooperating entity, the land, easements, and rights -of -way
necessary for the acquisition, improvement, or equipment of any project;
(II) Hold the cooperating entity free from and save it harmless from any claim for damages arising from
the acquisition, improvement, equipment, maintenance, and operation of any facilities;
(III) Maintain and operate any facilities in accordance with regulations prescribed by the cooperating
entity;
(IV) Establish and enforce regulations, if any, concerning the facilities and satisfactory to the
cooperating entity;
(g) To provide by any contract for any term not exceeding fifty years, or otherwise, without an election
(1) For the joint use of personnel, equipment, and facilities of the Fountain Creek District and any public
body, including without limitation public buildings constructed by or under the supervision of the board
or the governing body of the public body concerned, upon such terms and agreements and within such
areas within the Fountain Creek District as may be determined, for the promotion and protection of
health, comfort, safety, life, welfare, and property of the inhabitants of the Fountain Creek District and
any such public body and any other persons of interest;
(II) For the joint employment of clerks, stenographers, and other employees pertaining to the facilities or
any project established in the Fountain Creek District, upon such terms and conditions as may be
determined for the equitable apportionment of the expenses resulting therefrom.
(2) The board shall provide for comprehensive planning and, where possible, coordinate operations
with all regional special purpose districts, regional multipurpose public agencies, and regional planning
commissions and any political subdivision that is multijurisdictional in nature and functions wholly or
partly within the Fountain Creek District.
(3) If a single multipurpose service authority is subsequently created in either El Paso or Pueblo
counties the powers functions and facilities of the Fountain Creek District created by this article shall
be transferred to such service authority upon a maiority vote of the Fountain Creek District board:
except that the general assembly may provide for the transfer to other political subdivisions of any
facilities outside the boundaries of such service authority.
43
(4) The board, wherever and however possible and feasible, shall promote and cooperate with park and
recreation districts, municipalities, and other governmental agencies for the development and use of
drainageways for recreational and park purposes.
32 -11.5 -219. Supplemental Powers.
(1) The district also has the following powers
(a) To enter upon any land to make surveys, borings, soundings, and examinations for the purpose of
the Fountain Creek District, and to locate the necessary works of any project and any roadways and
other rights -of -way pertaining to any project authorized in this article; to acquire all property necessary
or convenient for the acquisition, improvement, or equipment of such works, including works
constructed and being constructed by private owners, and all necessary appurtenances; and also,
where necessary or convenient to such end, and for such purposes and uses, to acquire and hold the
stock of corporations, domestic or foreign, owning facilities, franchises, concessions, or rights
pertaining to facilities or any project of the Fountain Creek District;
(b) To acquire property by agreement, condemnation, or otherwise, and if any street, road, highway,
railroad, canal, ditch, or other property subject or devoted to public use becomes subject to interference
by reason of the construction or proposed construction of any works of the Fountain Creek District, the
right to interfere with such property, whether it be publicly or privately owned; but:
(1) If such right is acquired by condemnation proceedings, and if the court finds that public necessity or
convenience requires, the judgment may direct the Fountain Creek District to relocate such street, road,
highway, railroad, canal, ditch, or other property in accordance with the plans prescribed by the court;
(II) If, by such judgment or agreement, the Fountain Creek District is required to relocate any such
street, road, highway, railroad, canal, ditch, or other property subject or devoted to public use, the
board has the power to acquire in the name of the Fountain Creek District, by agreement or
condemnation, all rights -of -way and other property necessary or proper for compliance with the
agreement or judgment of condemnation, and thereafter to make such conveyance of such relocated
street, road, highway, railroad, canal, ditch, or other property as may be proper to comply with the
agreement or judgment;
(c) To carry on technical and other investigations of all kinds, make measurements, collect data, and
make analyses, studies, and inspections pertaining to the facilities and any project, both within and
without the Fountain Creek District;
(d) To make and keep records in connection with the facilities and any project or otherwise concerning
the Fountain Creek District;
(e) To arbitrate any differences arising in connection with the facilities and any project or otherwise
concerning the Fountain Creek District;
(f) To have the management, control, and supervision of all business and affairs pertaining to the
facilities and any project authorized in this article, or otherwise concerning the Fountain Creek District,
and of the acquisition, improvement, equipment, operation, maintenance, and disposal of any property
pertaining to the facilities or any such project;
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(g) To enter into contracts of indemnity and guaranty, in such form as may be approved by the board,
relating to or connected with the performance of any contract or agreement which the Fountain Creek
District is empowered to enter into under the provisions of this article or of any other law of the state;
(h) To obtain financial statements, appraisals, economic feasibility reports, and valuations of any type
pertaining to the facilities or any project or any property relating thereto;
(i) To adopt any resolution authorizing a project or the issuance of district securities, or both, or
otherwise pertaining thereto, or otherwise concerning the Fountain Creek District;
(j) To make and execute an indenture or other trust instrument pertaining to any district securities
authorized in this article, except as otherwise provided in section 32- 11.5 -502 and elsewhere in this
article;
(k) To make all contracts, execute all instruments, and do all things necessary or convenient in the
exercise of the powers granted in this article, or in the performance of the Fountain Creek District's
covenants or duties, or in order to secure the payment of district securities;
(1) To have and exercise all rights and powers necessary or incidental to or implied from the specific
powers granted in this article, which specific powers shall not be considered as a limitation upon any
power necessary or appropriate to carry out the purposes and intent of this article;
(m) To exercise all or any part or combination of the powers granted in this article.
32- 11.5 -220. Approval of Other Facilities.
(1) No public body or other person (other than the federal government) shall, after July 6, 2009,
acquire or improve within the territorial limits of the Fountain Creek District any drainage and flood
control facilities (other than gutters and rainspouts attached to buildings and other structures; other thar
curbs and gutters pertaining to the improvement of any streets, alleys, highways, and other rights -of-
way; and other than a collection or secondary storm drainage system, as defined in the El Paso County
Drainage Criteria Manual or the Pueblo County Drainage Criteria Manual, as may be applicable, until a
proposal for such an acquisition or improvement has been approved by the board
(2) If any person (other than the federal government) after July 6, 2009, acquires or improves any such
facilities without such approval, the board may order their modification to meet the reasonable
specifications and other requirements of the Fountain Creek District.
(3) The board shall not approve a proposal for any such acquisition or improvement unless the
drainage or flood control facilities so to be acquired or improved appropriately complement or
supplement the facilities of the Fountain Creek District, both proposed and acquired, and upon the
adoption of a comprehensive program for the acquisition of facilities for the Fountain Creek District, as
from time to time modified, if modified, pursuant to section 32 -11.5 -214, appropriately conform to such
program.
(4) The board shall not unreasonably withhold its approval of nor disapprove any such proposal unless
such facilities to be acquired or approved do not so complement or supplement the Fountain Creek
District's facilities or do not so conform to such a comprehensive program of the Fountain Creek
District, if any.
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(5) If any such proposal does not sufficiently delineate the facilities so to be acquired or improved for
the board to determine whether such facilities so complement or supplement the Fountain Creek
District's facilities and so conform to such a comprehensive program of the Fountain Creek District, if
any, the board may order such additional information to be furnished to it as it may deem necessary or
desirable for it to make such a determination. The board may delay its consideration of any such
proposal until the additional information which the board requests is received by it.
32- 11.5 -221. Powers of Public Bodies.
(1) The governing body of any public body, upon its behalf and in its name, for the purpose of aiding
and cooperating in any project authorized in this article, upon the terms and with or without
consideration and with or without an election, as the governing body determines, has power under this
article:
(a) To sell, lease, loan, donate, grant, convey, assign, transfer, and otherwise dispose to the Fountain
Creek District any facilities or any other property, or any interest therein, pertaining to any project (or
any combination thereof);
(b) To make available to the Fountain Creek District for temporary use, or otherwise to dispose of any
machinery, equipment, facilities, and other property, and any agents, employees, persons with
professional training, and any other persons, to effect the purposes of this article. Any such property
owned and persons in the employ of any public body while engaged in performing for the Fountain
Creek District any service, activity, or undertaking authorized in this article, pursuant to contract or
otherwise, shall have and retain all of the powers, privileges, immunities, rights, and duties of, and shall
be deemed to be engaged in the service and employment of, such public body, notwithstanding that
such service, activity, or undertaking is being performed in or for the Fountain Creek District.
(c) To enter into any agreement or joint agreement between or among the federal government, the
Fountain Creek District, and any public bodies (or any combination thereof) extending over any period
not exceeding fifty years, which is mutually agreed thereby, notwithstanding any law to the contrary,
respecting action or proceedings pertaining to any power granted in this article, and the use or joint use
of any facilities, project, or other property herein authorized;
(d) To sell, lease, loan, donate, grant, convey, assign, transfer, or pay over to the Fountain Creek
District any facilities or any project authorized in this article, or any part or parts thereof, or any interest
in personal property or real property, or any funds available for acquisition, improvement, or equipment
purposes, including the proceeds of any securities issued for acquisition, improvement, or equipment
purposes which may be used by the Fountain Creek District in the acquisition, improvement,
equipment, maintenance, and operation of any facilities or project authorized in this article (or any
combination thereof);
(e) To transfer, grant, convey, or assign and set over to the Fountain Creek District any contracts which
may have been awarded by the public body for the acquisition, improvement, or equipment of any
project not begun or, if begun, not completed;
(f) To budget and appropriate, and each public body is required and directed to budget and appropriate
from time to time the proceeds of taxes, service charges, and other revenues legally available therefor
to pay all obligations arising from the exercise of any powers granted in this article as such obligation
accrues and becomes due;
.e
(g) To provide for an agency, by any agreement authorized in this article, to administer or execute that
or any collateral agreement, which agency may be one of the parties to the agreement, or a
commission or board constituted pursuant to the agreement;
(h) To provide that any such agency shall possess the common power specified in the agreement, and
may exercise it in the manner or according to the method provided in the agreement. Such power is
subject to the restrictions upon the manner of exercising the power of any one of the contracting
parties, which party shall be designated by the agreement.
(i) To continue any agreement authorized in this article for a definite term not exceeding fifty years, or
until rescinded or terminated, which agreement may provide for the method by which it may be
rescinded or terminated by any party.
PART III — TAXATION AND SERVICE CHARGES
[The provisions below are subject to revision by the Governing Board based on input from the Parties to
the IGA and shall provide for all funding as allowed by law and shall be consistent with the principles
expounded in the IGA and in accordance with TABOR to the extent it may apply.l
32- 11.5 -301. Levy and Collection of Taxes.
To levy and collect taxes, the board shall determine, in each year, the amount of money necessary to
be raised by taxation, taking into consideration other sources of revenue of the Fountain Creek District,
and shall fix a rate of levy, subject to the provisions of section 32- 11.5 -216 (1) (c) and (1) (d), which,
when levied upon every dollar of valuation for assessment of taxable property within the Fountain
Creek District, and, together with other moneys of the Fountain Creek District, will raise the amount
required by the Fountain Creek District annually to supply funds for paying expenses of organization
and the costs of acquiring, improving, equipping, operating, and maintaining any project or facilities of
the Fountain Creek District, and promptly to pay in full, when due, all interest on the principal of, any
prior redemption premiums due in connection with, and any other district charges pertaining to the
general obligation bonds and other general obligation securities of the Fountain Creek District and any
other debt of the Fountain Creek District, and to meet any other obligations of the Fountain Creek
District payable from taxes, and in the event of accruing defaults or deficiencies, an additional levy may
be made as provided in section 32- 11.5 -302.
32- 11.5 -302. Levies to Cover Deficiencies.
(1) The board, in certifying annual levies, shall take into account the maturing obligations for the
ensuing year as provided in its contracts, maturing securities, and interest on securities, and
deficiencies and defaults in prior years, and shall make ample provision for the payment thereof.
(2) In case the moneys produced from such levies, together with the revenues and any other moneys of
the Fountain Creek District, are not sufficient punctually to pay the annual installments of its contracts
or securities and interest thereon, and to pay defaults and deficiencies, the board shall make such
additional levies of taxes as may be necessary for such purposes, and notwithstanding any limitations,
except the limitations in section 32 -11.5 -216 (1) (d), such taxes shall be made and continue to be levied
until the obligations of the Fountain Creek District payable from taxes are fully paid.
32- 11.5 -303. Sinking Funds
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Whenever any obligations (other than any special obligations not payable from taxes) have been
incurred by the Fountain Creek District, subject to the limitations in section 32- 11.5 -216 (1) (d), the
board may levy taxes and collect revenue for the purpose of creating a reserve in such amount as the
board may determine, which may be used to meet such general obligations and any other obligations
payable from taxes of the Fountain Creek District, for operation and maintenance expenses and
depreciation charges, and for defraying the cost of any project of the Fountain Creek District.
32 -11.5 -304. Levying and Collecting Taxes.
(1) The body having authority to levy taxes within each county in which the Fountain Creek District is
situate shall levy the taxes provided in section 32- 11.5 -216 (1) (c) and (1) (d), and elsewhere in this
article.
(2) All officials charged with the duty of collecting taxes shall collect such taxes levied by the Fountain
Creek District at the time and in the form and manner and with like interest and penalties as other taxes
are collected and, when collected, shall pay the same to the Fountain Creek District.
(3) The payment of such collection shall be made monthly to the treasurer of the Fountain Creek
District and paid into the depository thereof to the credit of the Fountain Creek District.
(4) All taxes levied under this article, together with interest thereon and penalties for default in payment
thereof, and all costs of collecting the same, shall constitute, until paid, a perpetual lien on and against
the property taxed, and such lien shall be on a parity with the tax lien of other taxes.
32 -11.5 -305. Delinquent Taxes.
(1) If the taxes levied are not paid, then delinquent real property shall be sold at the regular tax sale for
the payment of such taxes, interest, and penalties, in the manner provided by the statutes of the state
for selling real property for the nonpayment of taxes. If there are no bids at such tax sale for the
property so offered, the property shall be struck off to the county, and the county shall account to the
Fountain Creek District in the same manner as provided by law for accounting for school, town, and city
taxes.
(2) Delinquent personal property shall be distrained and sold as provided by law.
(3) Nothing in this article, neither the tax limitations in section 32 -11.5 -216 (1) (d) nor otherwise, shall
be construed as preventing the collection in full of the proceeds of all levies of taxes by the Fountain
Creek District authorized by this article, including without limitation any delinquencies, interest,
penalties, and costs.
32- 11.5 -306. Service Charges.
(1) (a) The Fountain Creek District as provided in section 32 -1 -216 (1) (e) and elsewhere in this article,
may fix, modify, and collect, or cause to be collected, service charges for direct or indirect connection
with, or the use or services of, the facilities of the Fountain Creek District, including without limitation
minimum charges and charges for the availability of the facilities or services relating thereto.
(b) Such service charges may be charged to and collected in advance or otherwise by the Fountain
Creek District at any time or from time to time from any person owning real property within the Fountain
Creek District or from any occupant of such property which directly or indirectly is, has been, or will be
connected with the drainage and flood control system of the Fountain Creek District or from which or on
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which originates or has originated rainfall, other surface and subsurface drainage, and storm and flood
waters (or any combination thereof) which have entered or may enter such system, and such owner or
occupant of any such real property shall be liable for and shall pay such service charges to the
Fountain Creek District at the time when and place where such service charges are due and payable.
(c) Such service charges of the Fountain Creek District may accrue from any date on which the board
reasonably estimates, in any resolution authorizing the issuance of any securities or other instrument
pertaining thereto or in any contract with any person, that the facilities comprising the system or any
project being acquired or improved and equipped will be available for service or use.
(2) (a) Such service charges, as nearly as the Fountain Creek District deems practicable and equitable,
shall be reasonable, and shall be uniform throughout the Fountain Creek District for the same type,
class, and amount of use or service of the Fountain Creek District's system, and may be based or
computed on measurements of drainage flow devices duly provided and maintained by the Fountain
Creek District or by any user as approved by the Fountain Creek District, or on the consumption of
water in or on or in connection with the real property, making due allowance for commercial and other
use of water discharged into any sanitary sewer system and for any infiltration of ground water and
discharge of surface runoff into such sewer system, or on the capacity of the capital improvements in or
on or connected with the real property, or upon the availability of service or readiness to serve by the
Fountain Creek District's system, or on any other factors determining the type, class, and amount of
use or service of the Fountain Creek District's system, or on any combination of such factors. The
district may give weight to the characteristics of any real property, including without limitation the
characteristics of capital improvements, both proposed and existing, in any subdivision or other area in
the Fountain Creek District, and any other special matter affecting the runoff of rainfall, of other surface
and subsurface drainage, and of storm and flood waters (or any combination thereof) from such real
property directly or indirectly into the Fountain Creek District's facilities.
(b) Reasonable penalties may be fixed for any delinquencies, including without limitation interest on
delinquent service charges from any date due at a rate of not exceeding one percent per month, or
fraction thereof, reasonable attorneys' fees, and other costs of collection.
(3) The district may prescribe and from time to time when necessary revise a schedule of such service
charges, which shall comply with the terms of any contract of the Fountain Creek District, and in any
event shall be such that the revenues from the service charges of the Fountain Creek District will at all
times be adequate, except to the extent that the proceeds of any taxes or other moneys are available
and used, after an allowance is made for delinquencies accrued and reasonably estimated to accrue by
the board in the payment of such service charges, whether resulting from any delinquency of any
person or from any other cause:
(a) To pay all operation and maintenance expenses;
(b) To pay punctually the principal of and interest on any securities payable from revenues of the
Fountain Creek District's facilities and issued or to be issued by the Fountain Creek District;
(c) To maintain such reserves or sinking funds therefor; and
(d) To pay any expenses incidental to the facilities of the Fountain Creek District or any project
authorized in this article, any contingencies, acquisitions, improvements, and equipment, and any other
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cost, as may be required by the terms of any contract of, or as may be deemed necessary or desirable
by, the Fountain Creek District.
(4) Such schedule shall thus be prescribed and from time to time revised by the Fountain Creek District.
A public hearing thereon may be, but is not required to be, held by the Fountain Creek District at least
seven days after such published notice is given, as the Fountain Creek District may determine to be
reasonable. The district shall fix and determine the time or times when and the place or places where
such service charges shall be due and payable and may require that the service charges shall be paid
in advance for a period of not more than one year. A copy of such schedule of service charges in effect
shall at all times be kept on file at the principal office of the Fountain Creek District and shall at all
reasonable times be open to public inspection.
(5) The general assembly has determined and hereby declares that the obligations arising from time to
time of any person to pay service charges fixed in connection with the Fountain Creek District's facilities
shall constitute general obligations of the public body or other person charged with their payment; but
as such obligations accrue for current services and benefits from and use of such facilities, the
obligations shall not constitute an indebtedness of the public body within the meaning of any
constitutional, charter, or statutory limitation, or other provision restricting the incurrence of any debt.
(6) No board, agency, bureau, commission, or official other than the board of the Fountain Creek
District has authority to fix, prescribe, levy, modify, supervise, or regulate the making of service
charges, nor to prescribe, supervise, or regulate the performance of services pertaining to the Fountain
Creek District's facilities, as authorized in this article; but this subsection (6) is not a limitation on the
contracting powers of the Fountain Creek District acting by and through its board.
PART IV — ELECTIONS
32 -11.5 -401. Elections
Wherever in this article an election is permitted or required, the election may be held separately at a
special election or may be held jointly or concurrently with any primary or general election held under
the laws of the state; but no election shall be held at the same time as any regular election of any city,
town, or school district any part of the area of which is located within the boundaries of the Fountain
Creek District. The elections shall be held and conducted, and the results determined, in the manner
provided by articles 1 to 13 of title 1, C.R.S and in accordance with TABOR to the extent it may be
applicable.
32- 11.5 -402. Election Resolution.
(1) The board shall call any election by resolution adopted at least thirty days prior to the election
(2) The resolution shall recite the objects and purposes of the election, the date upon which the election
shall be held, and the form of the ballot and shall designate an election official to conduct the election.
PART V — INDEBTEDNESS AND FINANCIAL PROVISIONS
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IThe provisions below are subiect to revision by the Governing Board based on input from the Parties to
the IGA and shall provide for all funding as allowed by law and shall be consistent with the principles
expounded in the IGA and in accordance with TABOR, to the extent it may apply.1
32- 11.5 -501. Forms of Borrowing.
(1) Upon the conditions and under the circumstances set forth in this section, the Fountain Creek
District, to carry out the purposes of this article, at any time or from time to time may borrow money to
defray the cost of any project designated by the board, or any part thereof as the board may determine,
and may issue district securities to evidence such borrowing or obligations otherwise incurred under
this article, as provided in this section.
(2) The Fountain Creek District may issue, in one series or more, without the Fountain Creek District
securities being authorized at any election, except as otherwise provided in section 32- 11.5 -533 and
elsewhere in this article, in anticipation of taxes or pledged revenues, or both, and constituting either
general obligations or special obligations of the Fountain Creek District, any one or more of the
following types of district securities:
(a) Notes, evidencing any amount borrowed by the Fountain Creek District;
(b) Warrants, evidencing the amount due to any person for any services, supplies, equipment, or other
materials furnished to or for the benefit of the Fountain Creek District and pertaining to a project;
(c) Bonds, any amount borrowed by the Fountain Creek District and constituting long -term
financing;
(d) Temporary bonds, pending the preparation of and exchangeable for definitive bonds of like
character and in like principal amount when prepared and issued in compliance with the conditions and
limitations provided in this article; and
(e) Interim debentures, evidencing any emergency loans, construction loans, and other temporary loans
not exceeding three years, in supplementation of long -term financing and the issuance of bonds, as
provided in sections 32 -11.5 -558 to 32- 11.5 -563.
(3) The Fountain Creek District, pursuant to part 6 of this article and sections 32- 11.5 -803 to 32 -11.5-
808, at any time or from time to time, may create therein an improvement district, levy special
assessments against the assessable property in the improvement district, and cause the assessments
to be collected to defray wholly or in part the cost of any project, and may issue, in one series or more,
without the Fountain Creek District securities being authorized at any election, in anticipation of the
assessments and any other moneys pledged additionally to secure the payment of the securities, and
constituting special obligations of the Fountain Creek District, any one or more of the following types of
district securities:
(a) Bonds, evidencing any amount borrowed and constituting long -term financing;
(b) Temporary bonds, pending the preparation of and exchangeable for definitive bonds of like
character and in like principal amount when prepared and issued in compliance with the conditions and
limitations provided in this article; and
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(c) Assessment debentures, evidencing any construction loans or other temporary loans not exceeding
three years, in supplementation of long -term financing and the issuance of bonds, as provided in
section 32 -11.5 -621.
32- 11.5 -502. Limitations upon Securities
(1) The payment of district securities or any other obligations of the Fountain Creek District shall not be
secured by an encumbrance, mortgage, or other pledge of property of the Fountain Creek District,
except for its pledged revenues, proceeds of taxes, proceeds of assessments, and any other moneys
pledged for the payment of the securities or such other obligations.
(2) No property of the Fountain Creek District subject to such exception shall be liable to be forfeited or
taken in payment of any district securities or other obligations of the Fountain Creek District.
32- 11.5 -503. Recourse Against District Personnel.
No recourse shall be had for the payment of the principal of, any interest on, and any prior redemption
premiums due in connection with any bonds or other district securities or other obligations of the
Fountain Creek District evidenced by any other contract or for any claim based thereon or otherwise
upon the resolution authorizing the issuance of such securities or the incurrence of such other
obligations, or other instrument pertaining thereto, against any individual director or any officer or other
agent of the Fountain Creek District, past, present, or future, either directly or indirectly through the
board or the Fountain Creek District, or otherwise, whether by virtue of any constitution, statute, or rule
of law, or by the endorsement of any penalty or otherwise, all such liability, if any, shall be by the
acceptance of the securities and as a part of the consideration of their issuance or by the making of any
other contract specially waived and released.
32- 11.5 -504. Repeal of Article
The faith of the state is pledged that this article, any law supplemental or otherwise pertaining thereto,
and any other law concerning the bonds or other district securities, taxes, assessments, or the pledged
revenues, or any combination of such securities, such taxes, such assessments, and such revenues
shall not be repealed, amended, or otherwise directly or indirectly modified in such a manner as to
impair adversely any outstanding district securities, until all such securities have been discharged in full
or provision for their payment and redemption has been fully made, including without limitation the
known minimum yield from the investment or reinvestment of moneys pledged therefor in federal
securities.
32- 11.5 -505. Registration of Securities.
(1) Before the board delivers any securities under this article, all such securities shall be registered by
the treasurer in a book kept in his office for that purpose.
(2) The register shall show
(a) The principal amount of the securities;
(b) The time of payment of each of the securities; and
(c) The rate of interest each of the securities bears.
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(3) After registration by the treasurer, he shall cause the securities to be delivered to the purchaser
thereof from the Fountain Creek District, upon payment being made therefor on the terms of the sale.
32- 11.5 -506. Details of Securities.
(1) Except as otherwise provided in this article and in any other law, the provisions of which are
relevant by express reference in this article thereto, any district securities issued under this article, as
may be provided by the board in a resolution authorizing their issuance and in any indenture or other
proceedings pertaining thereto, may be:
(a) In such form, issued in such manner, and issued with such provisions:
(1) For the application of any accrued interest and any premium from the sale of any bonds or other
district securities under this article as provided in section 32- 11.5 -516;
(11) For the registration of the bonds or other securities for payment as to principal only, or as to both
principal and interest, at the option of any holder of a bond or other security, or for registration for
payment only in either manner designated;
(III) For the endorsement of payments of interest on the bonds or other securities or for reconverting the
bonds or other securities into coupon bonds or other coupon securities, or both for such endorsement
and such reconversion, where any bond or other security is registered for payment as to interest; and
where interest accruing on the securities is not represented by interest coupons, the securities may
provide for the endorsing of payments of interest thereon;
(IV) For the endorsement of payments of principal on the bonds or other securities, where any bond or
other securities are registered for payment as to principal;
(V) For the initial issuance of one or more bonds or other securities aggregating the amount of the
entire issue or any portion thereof, and the endorsement of payments of interest or principal or both
interest and principal on the securities;
(VI) For the manner and circumstances in and under which any such bond or other securities may in
the future, at the request of the holder thereof, be converted into bonds or other securities of smaller or
larger denominations, which bonds or other securities of smaller or larger denominations may in turn be
either coupon bonds or other coupon securities or bonds or other securities registered for payment, or
coupon bonds or other coupon securities with provisions for registration for payment;
(VII) For the reissuance of any outstanding bonds or other securities, and the terms and conditions
thereof, whether lost, apparently destroyed, wrongfully taken, or for any other reason, as provided in
the "Uniform Commercial Code - Investment Securities ", being article 8 of title 4, C.R.S., or otherwise;
(VIII) For the deposit of moneys, federal securities, or other securities of the federal government, or
both moneys and all such securities, with and securing their repayment by a commercial bank within or
without or both within and without this state; and
(IX) For the payment of costs or expenses incident to the enforcement of the securities or of the
provisions of the resolution or of any covenant or contract with the holders of the securities.
(b) Issued otherwise with such recitals, terms, covenants, conditions, and other provisions as the board
may provide.
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32- 11.5 -507. Recital of Issuance under Article.
A resolution providing for the issuance of bonds or other district securities under this article or an
indenture or other proceedings pertaining thereto may provide that the securities contain a recital that
they are issued pursuant to this "Fountain Creek Watershed Flood Control, and Greenwav District Act ",
which recital shall be conclusive evidence of their validity and the regularity of their issuance.
32- 11.5 -508. Additional Securities Details.
(1) As the board may determine, any bonds and other district securities issued under this article, except
as otherwise provided in this article or in any law supplemental thereto, may:
(a) Be of a convenient denomination or denominations;
(b) Be fully negotiable within the meaning of and for all the purposes of the "Uniform Commercial Code
- Investment Securities ", being article 8 of title 4, C.R.S.;
(c) Mature at such time or serially at such times in regular numerical order at annual or other
designated intervals in amounts designated and fixed by the board;
(d) Bear interest payable annually, semiannually, or at other designated intervals, but the first interest
payment date may be for interest accruing for any other period;
(e) Be made payable in lawful money of the United States, at the office of the treasurer, any county
treasurer, or any commercial bank within or without or both within and without the state as may be
provided by the board; and
(f) Be printed at such place within or without this state, as the board may determine.
32- 11.5 -509. Payment without Further Order.
The principal of, the interest on, and any prior redemption premium due in connection with any district
securities shall be paid as the same become due in accordance with the terms of the securities and any
resolutions and other proceedings pertaining to their issuance, without any warrant or further order or
other preliminaries.
32- 11.5 -510. Interest Coupons.
Any bonds issued under this article (except temporary bonds) shall have one or two sets of interest
coupons, bearing the number of the bond to which they are respectively attached, numbered
consecutively in regular numerical order, and attached in such manner that they may be removed upon
the payment of the installments of interest without injury to the bonds, except as otherwise provided in
this article.
32- 11.5 -511. Execution of Securities.
Bonds and other district securities issued under this article shall be executed in the name of the
Fountain Creek District, shall be signed by the chairman of the board, shall be countersigned by the
treasurer, and shall be attested by the secretary. All bonds or other securities shall be authenticated by
the seal of the Fountain Creek District affixed thereto. All coupons shall be signed by the treasurer.
Facsimile signatures may be used on any coupons.
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32- 11.5 -512. Use of Facsimiles.
Any bonds or other securities, including without limitation any certificates endorsed thereon and any
coupons attached thereto, may be executed with facsimile signatures and seats as provided in sections
11 -55 -103 and 11 -55 -104, C.R.S., as from time to time amended.
32- 11.5 -513. Execution by Incumbents
The bonds, any coupons pertaining thereto, and other securities bearing the signatures of the officers in
office at the time of the signing thereof shall be the valid and binding obligations of the Fountain Creek
District, notwithstanding that before the delivery thereof and payment therefor all of the persons whose
signatures appear thereon have ceased to fill their respective offices.
32- 11.5 -514. Execution by Predecessor's Facsimile.
Any officer authorized or permitted to sign any bonds, any coupons, or any other securities, at the time
of their execution and of a signature certificate pertaining thereto, may adopt for his own facsimile
signature the facsimile signature of his predecessor in office in the event that such facsimile signature
appears upon the bonds, coupons, and other securities pertaining thereto, or any combination thereof.
32 -11.5 -515. Repurchase of Securities
Any bonds or other district securities may be repurchased by the board out of any funds available for
such purpose at a price of not more than the principal amount thereof and accrued interest, plus the
amount of the premium, if any, which might on the next prior redemption date of such securities be paid
to the holders thereof if such securities should be called for redemption on such date pursuant to their
terms. All securities so repurchased shall be canceled; but if the securities are not called for prior
redemption at the Fountain Creek District's option within one year from the date of their purchase, they
may be repurchased without limitation as to price.
32- 11.5 -516. Use of securities proceeds
(1) All moneys received from the issuance of any securities authorized in this article shall be used
solely for the purpose for which issued and to defray wholly or in part the cost of the project thereby
delineated, except for any funding or refunding securities.
(2) Any accrued interest and any premium shall be applied to the cost of the project or to the payment
of the interest on or the principal of the securities, or both interest and principal, or shall be deposited in
a reserve therefor, or any combination thereof, as the board may determine.
32- 11.5 -517. Use of surplus proceeds.
Any unexpended balance of the proceeds of such securities remaining after the completion of the
acquisition or improvement of properties pertaining to the project or otherwise to the completion of the
purpose for which such securities were issued shall be credited immediately to the fund or account
created for the payment of the interest on or the principal of the securities, or both principal and
interest, and shall be used therefor, subject to the provisions as to the times and methods for their
payment as stated in the securities and the proceedings authorizing or otherwise pertaining to their
issuance, or so paid into a reserve therefor, or any combination thereof, as the board may determine.
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32- 11.5 -518. Validity of securities unaffected by project
(1) The validity of any securities shall not be dependent on or affected by the validity or regularity of any
proceedings relating to a project or the proper completion of any purpose for which the securities are
issued.
(2) The purchaser of the securities shall in no manner be responsible for the application of the proceeds
of the securities by the Fountain Creek District or any of its officers, agents, and employees.
32- 11.5 -519. Employment of experts.
(1) The board on behalf of the Fountain Creek District may employ legal, fiscal, engineering, and other
expert services in connection with any project or the facilities, or both such project and facilities, and the
authorization, sale, and issuance of bonds and other securities under this article.
(2) The board on behalf of the Fountain Creek District is authorized to enter into any contracts or
arrangements, not inconsistent with the provisions of this article, with respect to the sale of bonds or
other securities under this article, the employment of engineers, architects, financial consultants, and
bond counsel, and other matters as the board may determine to be necessary or desirable in
accomplishing the purposes of this article.
32 -11.5 -520. Investments and reinvestments
(1) The board, subject to any contractual limitations from time to time imposed upon the Fountain Creek
District by any resolution authorizing the issuance of the Fountain Creek District's outstanding
securities or by any trust indenture or other proceedings pertaining thereto, may cause to be invested
and reinvested any proceeds of taxes, any proceeds of assessments, any pledged revenues, and any
proceeds of bonds or other district securities issued under this article in securities meeting the
investment requirements established in part 6 of article 75 of title 24, C.R.S., and may cause such
proceeds of taxes, assessments, revenues, district securities, and other securities to be deposited in
any trust bank within or without or both within and without this state and secured in such manner and
subject to such terms and conditions as the board may determine, with or without the payment of any
interest on such deposit, including without limitation time deposits evidenced by certificates of deposit.
(2) Any such securities and any certificates of deposit thus held may from time to time be sold, and the
proceeds may be so reinvested or redeposited as provided in this section.
(3) Sales and redemptions of any such securities and certificates of deposit thus held shall from time to
time be made in season so that the proceeds may be applied to the purposes for which the money with
which such securities and certificates of deposit were originally acquired was placed in the Fountain
Creek District treasury.
(4) Any gain from any such investments or reinvestments may be credited to any fund or account
pledged for the payment of any securities issued under this article, including any reserve therefor, or
any other fund or account pertaining to a project or the facilities or the Fountain Creek District's general
fund, subject to any contractual limitations in any proceedings pertaining to outstanding district
securities.
(5) Any commercial bank incorporated under the laws of this state which may act as depository of the
proceeds of any securities issued under this article, any other securities owned by the Fountain Creek
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District, any proceeds of taxes, any proceeds of assessments, any pledged revenues, and any moneys
otherwise pertaining to a project or the facilities, or any combination thereof, may furnish such
indemnifying bonds or may pledge such securities as may be required by the board.
32- 11.5 -521. Rights and remedies cumulative.
No right or remedy conferred upon any holder of any securities or any coupon pertaining thereto or any
trustee for such holder by this article or by any proceedings pertaining to the issuance of such
securities or coupon is exclusive of any right or remedy, but each such right or remedy is cumulative
and in addition to every other right or remedy and may be exercised without exhausting and without
regard to any other remedy conferred by this article or by any other law.
32- 11.5 -522. Continuation of liabilities.
The failure of any holder of any district securities or any coupons pertaining thereto to proceed as
provided in this article or in such proceedings shall not relieve the Fountain Creek District, the board, or
any of the officers, agents, and employees of the Fountain Creek District of any liability for failure to
perform any duty, obligation, or other commitment.
32- 11.5 -523. Temporary bonds.
(1) Each temporary bond issued under this article shall set forth substantially the same conditions,
terms, and provisions as the definitive bond for which it is exchanged.
(2) Each holder of a temporary bond has all the rights and remedies which he would have as a holder
of the definitive bond for which the temporary bond is to be exchanged. 32- 11.5 -524. Statement of
purpose.
The resolution authorizing the issuance of any district securities or any indenture pertaining thereto
shall describe the purpose for which the securities are issued at least in general terms and may
describe any purpose in detail.
32- 11.5 -525. Prior redemption calls
(1) Nothing in this article or in any other law of this state shall be construed to permit the board to call,
on behalf of the Fountain Creek District, bonds or other securities outstanding any time after the
adoption of this article for prior redemption in order to fund or refund such securities or in order
otherwise to pay them prior to their stated maturities, unless the right to call such securities for prior
redemption was specifically reserved and stated in such bonds at the time of their issuance, and all
conditions with respect to the manner, price, and time applicable to such prior redemption, as set forth
in the proceedings authorizing the outstanding securities, are strictly observed.
(2) It is the intention of the general assembly in this section to make certain that the holder of no
outstanding bond or other security may be compelled to surrender such security for funding or
refunding or other payment prior to its stated maturity or optional date of prior redemption expressly
reserved therein, even though such funding or refunding or other payment might result in financial
benefit to the Fountain Creek District.
32- 11.5 -526. Surrender of district securities by state.
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Notwithstanding the provisions of section 32- 11.5 -525 or of any other law, this state, acting by and
through the state agency authorizing the acquisition of district bonds or other district securities, may
agree with the board to exchange any outstanding securities of the Fountain Creek District held by the
state or any agency, corporation, department, or other instrumentality of the state, for funding or
refunding bonds or other funding securities of the Fountain Creek District, or otherwise to surrender at
such price and time and otherwise upon such conditions and other terms and in such manner as may
be mutually agreeable, such outstanding securities to the state for funding or refunding or other
payment at any time prior to their respective maturities or to any date as of which the Fountain Creek
District has the right and option to call on its behalf such outstanding securities for prior redemption as
expressly provided in the outstanding securities and any resolution, trust indenture, or other
proceedings authorizing their issuance.
32- 11.5 -527. Notes and warrants
(1) Notes and warrants designated in section 32 -11.5 -501 (2) may mature at such time, not exceeding
one year from the date of their issuance, as the board may determine. (2) The notes and warrants
shall not be extended or funded except by the issuance of bonds or interim debentures in compliance
with sections 32- 11.5 -558 to 32- 11.5 -563 and other provisions in this article supplemental thereto.
32- 11.5 -528. General obligation securities.
(1) The district may issue as general obligations any of the following types of district securities, payable
from taxes, or payable from taxes and additionally secured as to their payment by a pledge of net
revenues or gross revenues, as the board may determine:
(a) Notes;
(b) Warrants;
(c) Interim debentures;
(d) Bonds; and
(e) Temporary bonds.
32- 11.5 -529. Special obligation securities.
(1) The district may issue as special obligations any of the following types of district securities, in
anticipation of net pledged revenues; but not under any circumstances under their terms and the
proceedings authorizing their issuance, in anticipation of taxes nor in anticipation of gross pledged
revenues:
(a) Notes;
(b) Warrants;
(c) Interim debentures;
(d) Bonds; and
(e) Temporary bonds.
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(2) Such special obligation district securities may be payable from, secured by a pledge of, and
constitute a lien on net pledged revenues.
32- 11.5 -530. Covenant to pay operation and maintenance expenses
Any resolution authorizing the issuance of general obligation district securities payable from gross
revenues or any indenture or other proceedings pertaining thereto may contain a covenant of the
Fountain Creek District that to the extent required, as provided therein, the Fountain Creek District will
pay operation and maintenance expenses by appropriation from its general fund and that to the extent
the moneys accounted for therein are insufficient for that purpose the Fountain Creek District shall levy
taxes therefor, subject to the limitation pertaining to such expenses in section 32- 11.5 -216 (1) (d).
32 -11.5 -531. Securities constituting indebtedness
(1) Any outstanding general obligation bonds, any temporary general obligation bonds to be
exchanged for such definitive bonds, and any general obligation interim debentures constitute
outstanding indebtedness of the Fountain Creek District and exhaust the debt - incurring power of the
Fountain Creek District under the debt limitation pertaining thereto in section 32- 11.5 -534.
(2) Any general obligation notes and general obligation warrants shall be issued within budget
limitations and unencumbered appropriations and shall not constitute indebtedness.
32- 11.5 -532. Securities not constituting indebtedness
Any other district securities (except general obligation notes and general obligation warrants) constitute
special obligations of the Fountain Creek District, and all such other securities (including all notes and
warrants, general obligations, or special obligations payable within one year from date) neither
constitute outstanding indebtedness of the Fountain Creek District nor exhaust its debt - incurring power
under any such debt limitation.
32- 11.5 -533. Election to authorize debt.
Subject to the provisions of sections 32- 11.5 -564 and 32 -11.5 -566, no indebtedness shall be incurred
by the issuance of district securities or by any contract by which the Fountain Creek District agrees to
repay as general obligations of the Fountain Creek District to the federal government or to any public
body over a term not limited to the then current fiscal year any project costs advanced thereby under
any contract for the acquisition of the project or any interest therein, advanced by the issuance of
securities of such a public body to defray any cost of the project or of facilities thereby acquired and
becoming a part of the Fountain Creek District's facilities, or otherwise advanced, unless a proposal of
issuing the Fountain Creek District's general obligation bonds, including the maximum net effective
interest rate at which such issue of bonds may be issued, or of incurring an indebtedness by the
Fountain Creek District by making such a contract is submitted and approved at an election held for
that purpose in accordance with part 4 of this article and with all laws amendatory thereof and
supplemental thereto.
32 -11.5 -534. Limitations upon incurring debt
(1) The aggregate amount of indebtedness of the Fountain Creek District evidenced by district
securities and otherwise by contract with the federal government or any public body, or otherwise, shall
not at any time exceed three percent of the valuation for assessment of the taxable property within the
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Fountain Creek District as shown by the last preceding assessment for the purposes of taxation, except
as otherwise provided in this article.
(2) No debt within such debt limitation at the time it is incurred by the issuance of district securities or by
otherwise obligating the Fountain Creek District under contract shall become invalid because of any
reduction subsequently of the Fountain Creek District's debt - incurring power for any reason.
(3) Nothing in this article authorizes the creation of an indebtedness by any public body located wholly
or in part within the Fountain Creek District or elsewhere.
32- 11.5 -535. Interest and prior redemption charges.
Interest on any district securities or on any moneys directly or indirectly advanced by the federal
government or any public body and to be repaid by the Fountain Creek District under any contract, and
any prior redemption premiums due in connection with the prepayment of any such securities, and any
other prepayment charges due from the Fountain Creek District under any contract, do not constitute
indebtedness under this article, except as otherwise provided in sections 32- 11.5 -564 (1) (a) and 32-
11.5 -566 (3).
32- 11.5 -536. Recitals in securities.
(1) The district securities issued under this article, designated in section 32- 11.5 -501 (2), and
constituting special obligations shall recite in substance that the securities and the interest thereon are
payable solely from the net revenues pledged to the payment thereof.
(2) District securities issued under this article and constituting general obligations shall pledge the full
faith and credit of the Fountain Creek District for their payment, shall so state, and shall state that they
are payable from taxes.
(3) General obligation district securities, the payment of which is additionally secured by a pledge of
revenues, shall recite in substance, in addition to the statements required by subsection (2) of this
section, that the payment of the securities and the interest thereon is additionally secured by a pledge
of the net revenues or the gross revenues, as the case may be, designated in the securities.
32- 11.5 -537. Consolidated bond fund.
Payment of the principal of and the interest on general obligation bonds may be made from a
consolidated bond interest and redemption fund of the Fountain Creek District except as otherwise
provided in any proceedings pertaining to outstanding district securities or in any other contract.
32- 11.5 -538. Securities tax levies.
(1) There shall be levied annually a special tax on all taxable property, both real and personal, within
the territorial limits of the Fountain Creek District, fully sufficient, without regard to any statutory
limitations existing, except for any notes or warrants, to pay the interest on the general obligation
district securities and to pay and retire the same as provided in this article and any law supplemental to
this article. The amount of money to be raised by such tax shall be included in the annual estimate or
budget for the Fountain Creek District for each year for which such tax is required to be levied by this
article. Such tax shall be levied and collected in the same manner and at the same time as other taxes
of the Fountain Creek District are levied and collected.
$1
(2) Subject to the provisions of section 32 -11.5 -537, the proceeds of any such tax levied to pay interest
on such securities of any series shall be kept by the Fountain Creek District treasurer in a special
account separate and apart from all other funds, and the proceeds of the tax levied to pay the principal
of such securities shall be kept by the treasurer in a special account separate and apart from all other
funds, which two special accounts shall be used for no other purpose than the payment of the interest
on the securities and the principal thereof, respectively, as the same falls due.
32 -11.5 -539. Initial levies.
(1) Such tax shall be levied immediately after the issuance of any general obligation securities issued in
accordance with the provisions of this article, at the times and in the manner provided by law, and
annually thereafter until all of the securities and the interest thereon have been fully discharged.
(2) Such tax may be first levied after the Fountain Creek District, acting by and through the board, has
contracted to sell any securities but before their issuance.
32- 11.5 -540. Payments from general fund
Any sums coming due on any general obligation district securities at any time when there are not on
hand from such tax levy or levies sufficient funds to pay the same shall be promptly paid when due from
the general fund of the Fountain Creek District, reimbursement to be made to such general fund in the
sums thus advanced when the taxes provided for in this article have been collected.
32 -11.5 -541. Use of other moneys
The district may apply any funds (other than taxes) that may be available for that purpose to the
payment of the interest on or the principal of any general obligation district securities as the same
respectively mature, including without limitation the payment of general obligation bonds as provided in
section 32 -11.5 -537, and regardless of whether the payment of the general obligation district securities
is additionally secured by a pledge of revenues and, upon such payments, the levy of taxes provided in
this article may thereupon to that extent be diminished.
32- 11.5 -542. Appropriation of taxes
There is by this article, and there shall be by resolution authorizing the issuance of any indebtedness
contracted in accordance with the provisions of this article, specially appropriated the proceeds of such
taxes to the payment of the principal thereof and any interest thereon; and such appropriations shall not
be repealed nor the taxes postponed or diminished, except as otherwise expressly provided in this
article, until the principal of and interest on the Fountain Creek District securities evidencing such debt
or other indebtedness evidenced by other contract have been wholly paid.
32 -11.5 -543. Special obligation limitations
None of the covenants, agreements, representations, and warranties contained in any resolution
authorizing the issuance of bonds or other district securities issued under the provisions of this article,
designated in section 32- 11.5 -501 (2), and constituting special obligations, or in any other instrument
pertaining thereto, in the absence of any breach thereof, shall ever impose or be construed as imposing
any liability, obligation, or charge against the Fountain Creek District (except the special funds pledged
therefor) or against the general credit of the Fountain Creek District, payable out of the general fund of
the Fountain Creek District, or out of any funds derived from taxation.
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32- 11.5 -544. Purchase price and interest.
(1) Any district securities designated in section 32- 11.5 -501 (2) and otherwise issued under this article,
as may be provided by the board in a resolution authorizing their issuance and in any indenture or other
proceedings pertaining thereto, may be issued at, above, or below par, at a discount not exceeding
seven percent of the principal amount of the securities; but they may not be issued at a price such that
the net effective interest rate of the issue of securities exceeds the maximum net effective interest rate
authorized.
(2) Such district securities shall bear interest at a rate such that the net effective interest rate of the
issue of securities does not exceed the maximum net effective interest rate authorized.
32- 11.5 -545. Public and private sales.
(1) Notes may be issued at public or private sale.
(2) Warrants may be issued to evidence the amount due to any person furnishing services or materials
as provided in this article.
(3) General obligation bonds shall be issued at public sale. Bonds constituting special obligations may
be issued at public or private sale.
(4) Temporary bonds shall be issued to a purchaser of the definitive bonds in anticipation of the
exchange of the former for the latter.
(5) Interim debentures may be issued at public or private sale.
32- 11.5 -546. Notice of public sale.
(1) Before selling any district securities publicly, the board shall:
(a) Cause a notice calling for bids for the purchase of the securities to be published once a week for
four consecutive weeks by four weekly insertions a week apart, the first publication to be not more than
thirty days nor less than twenty -two days next preceding the date of sale, in a newspaper published
within the boundaries of the Fountain Creek District and having general circulation therein;
(b) Cause such other notice to be given as the board may direct.
32- 11.5 -547. Contents of sale notice.
(1) The notice shall:
(a) Specify a place and designate a day and the hour thereof subsequent to the date of the last
publication when sealed bids for the purchase of the securities shall be received and opened publicly;
(b) Specify the maximum rate of interest which the securities shall bear;
(c) Require each bidder to submit a bid specifying the lowest rate or rates of interest and premium, if
any, at which the bidder will purchase the securities, at or above par, or, if so permitted by the board,
below par at a discount not exceeding the maximum discount fixed by the board.
32- 11.5 -548. Bid requirements.
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(1) All bids shall:
(a) Be in writing and be sealed; and
(b) Except any bid of the state or any board or department thereof, if one is received, be accompanied
by a deposit of an amount of at least two percent of the principal amount of the securities, either in
cash, or by cashier's check or treasurer's check of, or by certified check drawn on, a solvent
commercial bank in the United States, which deposit shall be returned if the bid is not accepted.
32 -11.5 -549. Acceptance of best bid.
(1) Subject to the right of the board to reject any and all bids, the securities shall be sold to the
responsible bidder making the best bid.
(2) If there are two or more equal bids for the securities and such equal bids are the best bids received
and not less than the principal amount of the securities and accrued interest, except for any permitted
discount, the board shall determine which bid shall be accepted.
32- 11.5 -550. Rejection of bids.
(1) If a bid is accepted, the deposits of all other bidders shall be thereupon returned. If all bids are
rejected, all deposits shall be returned forthwith.
(2) If the successful bidder fails or neglects to complete the purchase of the securities within thirty days
following the acceptance of his bid, or within ten days after the bonds are made ready and are tendered
by the Fountain Creek District for delivery, whichever is later, the amount of his deposit shall be
forfeited to the Fountain Creek District (but no bidder shall forfeit such deposit whenever the securities
are not ready and so tendered for delivery within sixty days from the date of the acceptance of his bid),
and the board may accept the bid of the person making the next best bid.
(3) If all bids are rejected, the board may readvertise the securities for sale in the same manner as
provided for the original advertisement or may sell the securities privately.
32- 11.5 -551. Bond maturities.
(1) General obligation bonds shall mature within not exceeding forty years from their date or respective
dates and commencing not later than the third year thereafter, in such manner as the board may
determine.
(2) Special obligation bonds (other than assessment bonds) shall mature within not exceeding fifty
years from their date or respective dates.
32- 11.5 -552. Prior redemption provisions.
The board may provide for the redemption prior to maturity at the option of the Fountain Creek District
of any or all of the bonds or other district securities designated in section 32- 11.5 -501 (2), in such order,
by lot or otherwise, at such time, with or without the payment of such premiums not exceeding seven
percent of the principal amount of each bond or other security so redeemed, and otherwise upon such
terms as may be provided by the board in the resolution authorizing the issuance of the securities or
other instrument pertaining thereto.
32- 11.5 -553. Special funds and accounts
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The board, in any resolution authorizing the issuance of bonds or other securities designated in section
32- 11.5 -501 (2) or in any instrument or other proceedings pertaining thereto, may create special funds
and accounts for the payment of the cost of a project, of operation and maintenance expenses, of the
securities, including the accumulation and maintenance of reserves therefor, of improvements,
including the accumulation and maintenance of reserves therefor, and of other obligations pertaining to
the securities, any project, or the facilities.
32- 11.5 -554. Covenants and other provisions
(1) Any resolution providing for the issuance of any bonds or other district securities under this article
payable from pledged revenues, and any indenture or other instrument or proceedings pertaining
thereto, may at the discretion of the board contain covenants or other provisions, notwithstanding such
covenants and provisions may limit the exercise of powers conferred by this article, in order to secure
the payment of such securities, in agreement with the holders of such securities, including without
limitation covenants or other provisions as to any one or more of the following:
(a) The pledged revenues and, in the case of general obligations, the taxes to be fixed, charged, or
levied, and the collection, use, and disposition thereof, including but not limited to the foreclosure of
liens for delinquencies, the discontinuance of services, facilities, or use of any properties or facilities,
prohibition against free service, the collection of penalties and collection costs, and the use and
disposition of any moneys of the Fountain Creek District, derived or to be derived from any source
designated in this article;
(b) The acquisition, improvement, or equipment of all or any part of properties pertaining to any project
or the facilities;
(c) The creation and maintenance of reserves or sinking funds to secure the payment of the principal of
and interest on any securities or of operation and maintenance expenses of the facilities, or part
thereof, and the source, custody, security, regulation, use, and disposition of any such reserves or
funds, including but not limited to the powers and duties of any trustee with regard thereto;
(d) A fair and reasonable payment by the Fountain Creek District from its general fund or other
available moneys to the account of any designated facilities for services rendered thereby to the
Fountain Creek District;
(e) The payment of the cost of any project by delineating the purposes to which the proceeds of the
sale of securities may be applied, and the custody, security, use, expenditure, application, and
disposition thereof;
(f) The temporary investment and any reinvestment of the proceeds of bonds, any other securities, any
taxes, or any pledged revenues, or any combination thereof, in securities meeting the investment
requirements established in part 6 of article 75 of title 24, C.R.S.;
(g) The pledge of and the creation of a lien upon pledged revenues or the proceeds of bonds or other
district securities pending their application to defray the cost of the project, or both such revenues and
proceeds of such securities, to secure the payment of bonds or other securities issued under this
article;
(h) The payment of the principal of and interest on any securities, and any prior redemption premiums
due in connection therewith, and the sources and methods thereof, the rank or priority of any securities
64
as to any lien or security for payment, or the acceleration of any maturity of any securities, or the
issuance of other or additional securities payable from or constituting a charge against or lien upon any
pledged revenues or other moneys pledged for the payment of securities and the creation of future
liens and encumbrances thereagainst;
(i) The use, regulation, inspection, management, operation, maintenance, or disposition, or any
limitation or regulation of the use of all or any part of the facilities or any property of the Fountain Creek
District pertaining thereto;
Q) The determination or definition of pledged revenues from the facilities or of operation and
maintenance expenses of the facilities, the use and disposition of such revenues, and the manner of
and limitations upon paying such expenses;
(k) The creation of special funds and accounts pertaining to any pledged revenues or to the bonds or
other securities issued under this article;
(1) The insurance to be carried by the Fountain Creek District or any person in interest and use and
disposition of insurance moneys, the acquisition of completion, performance, surety, and fidelity bonds
pertaining to any project or funds, or both, and the use and disposition of any proceeds of such bonds;
(m) Books of account, the inspection and audit thereof, and other records pertaining to any project, the
facilities, or pledged revenues;
(n) The assumption or payment or discharge of any obligation, lien, or other claim relating to any part of
any project, the facilities, or any securities having a lien on any part of any pledged revenues or other
moneys of the Fountain Creek District;
(o) Limitations on the powers of the Fountain Creek District to acquire or operate, or permit the
acquisition or operation of, any structures, the facilities or properties of which may compete or tend to
compete with the facilities;
(p) The vesting in a corporate or other trustee such property, rights, powers, and duties in trust as the
board may determine which may include any or all of the rights, powers, and duties of the trustee
appointed by the holders of securities, and limiting or abrogating the right of such holders to appoint a
trustee, or limiting the rights, duties, and powers of such trustee;
(q) Events of default, rights, and liabilities arising therefrom, and the rights, liabilities, powers, and
duties arising upon the breach by the Fountain Creek District of any covenants, conditions, or
obligations;
(r) The terms and conditions upon which the holders of the securities or any portion, percentage, or
amount of them may enforce any covenants or provisions made under this article or duties imposed by
this article;
(s) The terms and conditions upon which the holders of the securities or of a specified portion,
percentage, or amount thereof, or any trustee therefor, shall be entitled to the appointment of a
receiver, which receiver may enter and take possession of any facilities or service, operate and
maintain the same, prescribe fees, rates, and charges, and collect, receive, and apply all revenues
thereafter arising therefrom in the same manner as the Fountain Creek District itself might do;
65
(t) A procedure by which the terms of any resolution authorizing securities, or any other contract with
any holders of securities, including but not limited to an indenture of trust or similar instrument, may be
amended or abrogated, and as to the proportion, percentage, or amount of securities the holders of
which must consent thereto, and the manner in which such consent may be given;
(u) The terms and conditions upon which any or all of the securities shall become or may be declared
due before maturity, and as to the terms and conditions upon which such declaration and its
consequences may be waived; and
(v) All such acts and things as may be necessary or convenient or desirable in order to secure the
securities, or in the discretion of the board tend to make the securities more marketable,
notwithstanding that such covenant, act, or thing may not be enumerated in this article, it being the
intention of this article to give the board power to do in the name and on behalf of the Fountain Creek
District all things in the issuance of district securities and for their security except as expressly limited in
this article.
32- 11.5 -555. Liens on pledged revenues
(1) Revenues pledged for the payment of any securities, as received by or otherwise credited to the
Fountain Creek District, shall immediately be subject to the lien of each such pledge without any
physical delivery thereof, any filing, or further act.
(2) The lien of each such pledge and the obligation to perform the contractual provisions made in the
authorizing resolution or other instrument pertaining thereto has priority over any other obligations and
liabilities of the Fountain Creek District, except as may be otherwise provided in this article or in the
resolution or other instrument, and subject to any prior pledges and liens theretofore created.
(3) The lien of each such pledge shall be valid and binding as against all persons having claims of any
kind in tort, contract, or otherwise against the Fountain Creek District irrespective of whether such
persons have notice thereof.
32 -11.5 -556. Rights and powers of securities holders.
(1) Subject to any contractual limitations binding upon the holders of any issue or series of district
securities, or trustee therefor, including but not limited to the restriction of the exercise of any remedy to
a specified proportion, percentage, or number of such holders, and subject to any prior or superior
rights of others, any holder of securities, or trustee therefor, shall have the right and power, for the
equal benefit and protection of all holders of securities similarly situated:
(a) By mandamus or other suit, action, or proceeding at law or in equity to enforce his rights against the
Fountain Creek District, the board, and any other of the officers, agents, and employees of the Fountain
Creek District, to require and compel the Fountain Creek District, the board, or any such officers,
agents, or employees to perform and carry out their respective duties, obligations, or other
commitments under this article and under their respective covenants and agreements with the holder of
any security;
(b) By action or suit in equity to require the Fountain Creek District to account as if it is the trustee of an
express trust;
...
(c) By action or suit in equity to have appointed a receiver, which receiver may enter and take
possession of any facilities and any pledged revenues for the payment of the securities, prescribe
sufficient fees derived from the facilities, and collect, receive, and apply all pledged revenues or other
moneys pledged for the payment of the securities in the same manner as the Fountain Creek District
itself might do in accordance with the obligations of the Fountain Creek District; and
(d) By action or suit in equity to enjoin any acts or things which may be unlawful or in violation of the
rights of the holder of any securities and to bring suit thereupon.
32- 11.5 -557. Receivers
(1) If a resolution of the board authorizing or providing for the issuance of any securities of any series or
any other proceedings pertaining thereto contains a provision authorized by section 32- 11.5 -554 (1) (s)
and further provides in substance that any trustee appointed pursuant to section 32- 11.5 -554 (1) (p)
shall have the powers provided therein, then such trustee, whether or not all of the bonds or other
securities of such series have been declared due and payable, shall be entitled as of right to the
appointment of a receiver of the facilities pertaining thereto.
(2) Any receiver appointed as permitted by section 32- 11.5 -554 (1) (s) may enter upon and take
possession of the facilities and any property pertaining thereto, and, subject to any pledge or contract
with the holders of such securities, shall take possession of all moneys and other property derived from
or applicable to the acquisition, operation, maintenance, or improvement of the facilities and proceed
with such acquisition, operation, maintenance, or improvement which the board on the behalf of the
Fountain Creek District is under any obligation to do, and shall operate, maintain, equip, and improve
the facilities, and fix, charge, collect, enforce, and receive the service charges and all revenues
thereafter arising subject to any pledge thereof or contract with the holders of such securities relating
thereto and perform the public duties and carry out the contracts and obligations of the Fountain Creek
District in the same manner as the board itself might do and under the direction of the court.
32 -11.5 -558. Issuance of interim debentures
(1) Notwithstanding any limitation or other provision in this article, whenever the issuance of general
obligation bonds by a district for any project has been approved at an election held in accordance with
this article, the Fountain Creek District is authorized to borrow money without any other election in
anticipation of the receipt of the proceeds of taxes, the proceeds of the bonds, the proceeds of pledged
revenues, or any other moneys of the Fountain Creek District, or any combination thereof, and to issue
general obligation interim debentures to evidence the amount so borrowed.
(2) The district also is authorized to borrow money without any election in anticipation of the proceeds
of revenue bonds of the Fountain Creek District and of its pledged revenues, or any combination
thereof, but excluding the proceeds of any taxes, and to issue special obligation interim debentures to
evidence the amount so borrowed.
32 -11.5 -559. Limitations upon funding and refunding securities.
(1) Subject to the provisions of subsections (2) to (4) of this section, nothing in this article authorizes the
Fountain Creek District to issue any district securities constituting a debt for the purpose of funding or
refunding district securities constituting special obligations and not constituting an indebtedness.
reiYA
(2) Any special obligation securities of the Fountain Creek District pertaining to any project may be
funded or refunded by general obligation securities pertaining to the project only if the Fountain Creek
District is authorized to issue general obligation bonds pertaining to the project at an election held in the
manner provided in section 32- 11.5 -533.
(3) No general obligation securities pertaining to the project and creating an indebtedness, by funding
or refunding special obligation securities or otherwise (in contradistinction to funding or refunding
securities merely reevidencing an indebtedness formerly evidenced by the securities funded or
refunded), shall be issued in a principal amount exceeding the debt limitation in section 32- 11.5 -534,
(4) No bonds of the Fountain Creek District shall be refunded by the issuance of its interim debentures,
its notes, or its warrants. No interim debentures of the Fountain Creek District shall be funded by the
issuance of its notes or its warrants.
32- 11.5 -560. Interim debenture details.
(1) Any interim debentures may mature at such time not exceeding a period of time equal to the
estimated time needed to effect the purpose for which they are issued or for which the bonds are
authorized to be issued, but not exceeding three years from the date or respective dates of the interim
debentures, as the board may determine.
(2) The proceeds of interim debentures shall be used to defray the cost of the project.
(3) Any notes or warrants or both may be funded with the proceeds of interim debentures, as well as
bonds.
(4) Except as otherwise provided in sections 32- 11.5 -558 to 32- 11.5 -563, interim debentures shall be
issued as provided in this article for district securities in sections 32- 11.5 -502 to 32- 11.5 -557 and 32-
11.5 -803 to 32- 11.5 -808.
32- 11.5 -561. Payment of interim debentures
(1) Except as otherwise provided in section 32 -11.5 -559, the proceeds of taxes, pledged revenues, and
other moneys, including without limitation proceeds of bonds to be issued or reissued after the issuance
of interim debentures, and bonds issued for the purpose of securing the payment of interim debentures,
or any combination thereof, may be pledged for the purpose of securing the payment of interim
debentures. But the proceeds of taxes and the proceeds of bonds payable from taxes, or any
combination thereof, shall not be used to pay any special obligation interim debentures, nor may their
payment be secured by a pledge of any such general obligation bonds, except as otherwise provided in
section 32 -11.5 -559.
(2) Any bonds pledged as collateral security for the payment of any interim debentures shall mature at
such time as the board may determine, except as otherwise provided in section 32 -11.5 -551.
(3) No bonds pledged as collateral security shall be issued in an aggregate principal amount exceeding
the aggregate principal amount of the interim debentures secured by a pledge of such bonds, nor shall
they bear interest at any time which, with any interest accruing at the same time on the interim
debentures so secured, exceeds seven percent each year.
32- 11.5 -562. Funding interim debentures.
No interim debentures issued pursuant to the provisions of sections 32- 11.5 -558 to 32- 11.5 -561 shall
be extended or funded except by the issuance or reissuance of bonds in compliance with section 32-
11.5 -563.
32 -11.5 -563. Funding bonds.
(1) For the purpose of funding any interim debentures, any bonds pledged as collateral security to
secure the payment of such interim debentures, upon their surrender as pledged property, may be
reissued without an election, and any bonds not previously issued but authorized to be issued at an
election pursuant to section 32- 11.5 -533 for a purpose the same as or encompassing the purpose for
which the interim debentures were issued, may be issued for such a funding.
(2) Any such bonds shall mature at such time as the board may determine, except as otherwise
provided in section 32- 11.5 -551.
(3) Bonds for funding (including but not necessarily limited to any such reissued bonds) and bonds for
any other purpose may be issued separately or issued in combination in one series or more.
(4) Except as otherwise provided in sections 32- 11.5 -559 to 32 -11.5 -563, any such funding bonds shall
be issued as is provided in this article for other bonds.
32- 11.5 -564. Refunding bonds.
(1) Subject to the provisions of section 32- 11.5 -559, any general obligation bonds or special obligation
bonds of the Fountain Creek District issued in accordance with the provisions of this article or any other
law, and payable from any pledged revenues and any general obligation bonds of the Fountain Creek
District so issued but not payable from pledged revenues may be refunded on behalf of the Fountain
Creek District by the board, by the adoption of a resolution by the board, and by any trust indenture or
other proceedings pertaining thereto, authorizing without any election the issuance of refunding bonds
to refund, pay, and discharge all or any part of such outstanding bonds of any one or more or all
outstanding issues:
(a) For the acceleration, deceleration, or other modification of the payment of such obligations,
including without limitation any capitalization of any interest thereon in arrears or about to become due
for any period not exceeding three years from the date of the refunding bonds, unless the capitalization
of interest on bonds constituting an indebtedness increases the Fountain Creek District debt in excess
of the Fountain Creek District's debt limitation in section 32 -11.5 -534; or
(b) For the purpose of reducing interest costs or effecting other economies; or
(c) For the purpose of modifying or eliminating restrictive contractual limitations pertaining to the
issuance of additional bonds, otherwise concerning the outstanding bonds, or to any facilities pertaining
thereto; or
(d) For any combination of such purposes.
32 -11.5 -565. Method of issuing refunding bonds.
(1) Subject to the provisions of sections 32- 11.5 -525 and 32- 11.5 -526, any such bonds issued for
refunding purposes may either be delivered in exchange for the outstanding bonds being refunded or
may be publicly or privately sold.
M .
(2) The refunding bonds, or any part thereof, except as limited by section 32- 11.5 -568 (2), may be
exchanged by the Fountain Creek District for securities meeting the investment requirements
established in part 6 of article 75 of title 24, C.R.S., which have been made available for escrow
investment by any purchaser of refunding bonds, upon terms of exchange mutually agreed upon, and
any such securities so received by the Fountain Creek District shall be placed in escrow as provided in
sections 32 -11.5 -567 and 32- 11.5 -568.
32- 11.5 -566. Conditions for refunding
(1) No such bonds may be refunded under this article unless they have been outstanding for at least
one year from the date or respective dates of their delivery, and unless the holders thereof voluntarily
surrender them for exchange or payment, or unless they either mature or are callable for prior
redemption under their terms within ten years from the date of issuance of the refunding bonds.
Provision shall be made for paying the securities within such period of time.
(2) No maturity of any bond refunded may be extended over fifteen years, or beyond one year next
following the date of the last outstanding maturity, whichever limitation is later. The rate of interest on
such refunding bonds shall be determined by the board.
(3) The principal amount of the refunding bonds may exceed the principal amount of the refunded
bonds if the aggregate principal and interest costs of the refunding bonds do not exceed such
unaccrued costs of the bonds refunded, except to the extent any interest on the bonds refunded in
arrears or about to become due is capitalized with the proceeds of the refunding bonds. Principal may
also then be increased to that extent. In no event, however, in the case of any bonds constituting a
debt, shall the principal of the bonds be increased to any amount in excess of the debt limitation in
section 32- 11.5 -534.
(4) The principal amount of the refunding bonds may also be less than or the same as the principal
amount of the bonds being refunded so long as provision is duly and sufficiently made for their
payment.
32- 11.5 -567. Disposition of refunding bond proceeds
(1) Except as otherwise provided in this article, the proceeds of such refunding bonds shall either be
immediately applied to the retirement of the bonds to be refunded, or be placed in escrow or trust in any
trust bank within or without or both within and without this state to be applied to the payment of the
refunded bonds or the refunding bonds, or both, upon their presentation therefor to the extent, in such
priority, and otherwise in the manner which the board may determine.
(2) The incidental costs of refunding bonds may be paid by the purchaser of the refunding bonds or be
defrayed from any general fund (subject to appropriations therefor as otherwise provided by law) or
other available revenues of the Fountain Creek District under the control of the board or from the
proceeds of the refunding bonds, or from the interest or other yield derived from the investment of any
refunding bond proceeds or other moneys in escrow or trust, or from any other sources legally available
therefor, or any combination thereof, as the board may determine.
(3) Any accrued interest and any premium pertaining to a sale of refunding bonds may be applied to the
payment of the interest thereon or the principal thereof, or to both interest and principal, or may be
deposited in a reserve therefor, or may be used to refund bonds by deposit in escrow, trust, or
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otherwise, or may be used to defray any incidental costs pertaining to the refunding, or any combination
thereof, as the board may determine.
32- 11.5 -568. Administration of escrow or trust.
(1) No such escrow or trust shall necessarily be limited to proceeds of refunding bonds but may include
other moneys available for its purpose.
(2) Any proceeds in escrow or trust, pending such use, may be invested or reinvested in securities
meeting the investment requirements established in part 6 of article 75 of title 24, C.R.S.
(3) Any trust bank accounting for federal securities and other securities issued by the federal
government in such escrow or trust may place them for safekeeping wholly or in part in any trust bank
within or without or both within and without this state.
(4) Any trust bank shall continuously secure any moneys placed in escrow or trust and not so invested
or reinvested in federal securities and other securities issued by the federal government by a pledge in
any trust bank within or without or both within and without the state of federal securities in an amount at
all times at least equal to the total uninvested amount of such moneys accounted for in such escrow or
trust.
(5) Such proceeds and investments in escrow or trust, together with any interest or other gain to be
derived from any such investment, shall be in an amount at all times at least sufficient to pay principal,
interest, any prior redemption premiums due, and any charges of the escrow agent or trustee, and any
other incidental expenses payable therefrom, except to the extent provision may have been previously
otherwise made therefor, as such obligations become due at their respective maturities or due at
designated prior redemption dates in connection with which the board has exercised or is obligated to
exercise a prior redemption option on behalf of the Fountain Creek District.
(6) The computations made in determining such sufficiency shall be verified by a certified public
accountant licensed to practice in this state or in any other state.
32 -11.5 -569. Security for payment of refunding bonds.
Refunding bonds may be made payable from any taxes or pledged revenues, or both taxes and such
revenues, which might be legally pledged for the payment of the bonds being refunded at the time of
the refunding or at the time of the issuance of the bonds being refunded, as the board may determine,
notwithstanding the taxes, or the revenue sources, or the pledge of such revenues, or any combination
thereof, for the payment of the outstanding bonds refunded is thereby modified, subject to the
provisions of section 32 -11.5 -559.
32- 11.5 -570. Combination of bond purposes.
Bonds for refunding and bonds for any other purpose authorized by this article or by any other law may
be issued separately or issued in combination in one series or more by the Fountain Creek District in
accordance with the provisions of this article.
32- 11.5 -571. Applicability of other statutory provisions.
Except as expressly provided or necessarily implied in sections 32- 11.5 -564 to 32- 11.5 -570, the
relevant provisions elsewhere in this article pertaining generally to the issuance of bonds to defray the
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cost of any project shall be equally applicable in the authorization and issuance of refunding bonds,
including their terms and security, the covenants and other provisions of the resolution authorizing the
issuance of the bonds, or other instrument or proceedings pertaining thereto, and other aspects of the
bonds.
PART VI — SPECIAL ASSESSMENTS
[The provisions below are subject to revision by the Governing Board based on input from the Parties to
the IGA and shall be consistent with the principles expounded in the IGA and in accordance with
TABOR, to the extent it may applv.1
32 -11.5 -601. Special assessments.
(1) The board, pursuant to this part 6 and to sections 32- 11.5 -803 to 32- 11.5 -808, upon the behalf and
in the name of the Fountain Creek District, for the purpose of defraying all the cost of acquiring or
improving or acquiring and improving any project authorized by this article, or any portion of the cost
thereof not to be defrayed with moneys available therefor from the general fund, any special fund, or
otherwise, also has power under this article:
(a) To levy assessments against assessable property within the Fountain Creek District and to cause
the assessments so levied to be collected;
(b) To pledge the proceeds of any assessments levied under this article to the payment of assessment
bonds and of assessment debentures and to create liens on such proceeds to secure such payments;
(c) To issue assessment bonds and assessment debentures payable from the assessments and
additionally to secure their payment as provided in this article;
(d) To make all contracts, to execute all instruments, and to do all things necessary or convenient in the
exercise of the powers granted in this article or in the performance of the Fountain Creek District's
duties or in order to secure the payment of its assessment bonds and assessment debentures, subject
to the provisions of sections 32- 11.5 -502 to 32- 11.5 -526 and 32- 11.5 -803 to 32 -11.5 -808.
32- 11.5 -602. Initiating procedure.
(1) The procedure for acquiring or improving, or acquiring and improving, any assessment project can
be initiated in one of the following ways:
(a) The provisional order method; or
(b) The petition method.
32- 11.5 -603. Provisional order method.
(1) Whenever the board is of the opinion that the interest of the Fountain Creek District requires any
assessment project, the board, by resolution, shall direct the engineer to prepare:
(a) Preliminary plans showing:
(1) A typical section of the contemplated project; and
(11) The types of material, approximate thickness, and width;
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(b) A preliminary estimate of the cost of the project, including incidental costs; and
(c) An assessment plat showing:
(1) The area to be assessed; and
(II) The amount of maximum benefits estimated to be assessed against each tract in each assessment
area.
(2) The resolution may provide for one or more types of construction, and the engineer shall separately
estimate the cost of each type of construction. The estimate may be made in a lump sum or by unit
process, as to such engineer may seem most desirable for the facilities complete in place.
(3) The resolution shall describe the project in general terms.
(4) The resolution shall state:
(a) What part or portion of the expense thereof is of special benefit, and, therefore, shall be paid by
assessments;
(b) What part, if any, has been or is proposed to be defrayed with moneys derived from other than the
levy of assessments; and
(c) The basis by which the cost will be apportioned and assessments will be levied.
(5) In case the assessment is not to be made according to front feet, the resolution shall:
(a) By apt description designate the improvement district, including the tracts to be assessed;
(b) Describe definitely the location of the project; and
(c) State that the assessment is to be made upon all the tracts benefited by the project proportionately
to the benefits received.
(6) In case the assessment is to be upon the abutting property upon a frontage basis, it shall be
sufficient for the resolution so to state and to define the location of the project to be made.
(7) It shall not be necessary in any case to describe minutely in the resolution each particular tract to be
assessed but simply to designate the property, improvement district, or the location so that the various
parts to be assessed can be ascertained and determined to be within or without the proposed
improvement district.
(S) The engineer shall forthwith prepare and file with the secretary:
(a) The preliminary plans;
(b) The preliminary estimate of cost; and
(c) The assessment plat.
(9) Upon the filing of the plans, preliminary estimate of cost, and plat, the board shall examine the
same; and if the plans, estimate, and plat are found to be satisfactory, the board shall make a
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provisional order by resolution to the effect that the project shall be acquired or improved, or both
acquired and improved.
32 -11.5 -604. Petition method
(1) Whenever the owner or owners of tracts to be assessed in the proposed improvement district for not
less than ninety -five percent of the entire cost of any project, including all incidental expenses,
comprising more than fifty percent of the area of such territory and also comprising a majority of the
landowners residing in the territory, may by written petition initiate the acquisition of any assessment
project which the board is authorized to initiate, subject to the following limitations:
(a) The board may incorporate such project in any improvement district or districts;
(b) The board need not proceed with the acquisition of any such project or any part thereof after holding
a provisional order hearing thereon, pursuant to sections 32- 11.5 -608 to 32- 11.5 -611, and all provisions
of this article thereunto enabling, if the board determines that it is not for the public interest that the
proposed project or a part thereof be then ordered to be made; and
(c) Any particular kind of project, any material therefor, or any part thereof need not be acquired or
located, as provided in the petition, if the board determines that such is not for the public interest.
(2) The board need not take any proceedings or action upon receiving any such petition if the board
determines by resolution that the acquisition of the designated project probably is not feasible for
reasons stated in such resolution, and if the resolution requires a cash deposit or a pledge of property
in at least an amount or value therein designated and found therein by the board probably to be
sufficient to defray the expenses and costs incurred by the board taken preliminary to and in the
attempted acquisition of the project designated in the petition, and if such deposit or pledge is not made
with the treasurer within twenty days after notice by mail is given to the person presenting the petition to
the secretary of the Fountain Creek District or after one publication in a newspaper of general
circulation in the Fountain Creek District of a notice of the resolution's adoption and of its content in
summary form, as the board may determine. An additional deposit or pledge may from time to time be
similarly so required as a condition precedent to the continuation of action by the Fountain Creek
District.
(3) Whenever such deposit or pledge is so made and thereafter the board determines that such
acquisition is not feasible within a reasonable period of time, the board may require that all or any
portion of the costs theretofore incurred in connection therewith by the Fountain Creek District after its
receipt of the petition shall be defrayed from such deposit or the proceeds of such pledged property, in
the absence of such defrayment of costs by petitioners or other interested persons within twenty days
after the determination by resolution of the amount so to be defrayed and after such published notice
thereof.
(4) Any surplus moneys remaining from such deposit or pledge shall be returned by the Fountain Creek
District to the person making the same.
32- 11.5 -605. Subsequent procedure.
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Upon the filing of such a petition, the board shall proceed in the same manner as is provided by this
article where proceedings are initiated by the board, except as otherwise expressly provided or
necessarily implied in section 32- 11.5 -604.
32- 11.5 -606. Combination of programs.
(1) More than one improvement program may be combined in one improvement district when the board
determines such programs may be combined together in an efficient and an economical improvement
district.
(2) If in the combination of improvement programs, they are separate and distinct by reason of
substantial difference in their character or location, or otherwise, each such program shall be
considered as a unit or quasi- improvement district for the purpose of petition, remonstrance, and
assessment.
(3) In case of such combination, the board shall designate the improvement program and the area
constituting each such unit, and, in the absence of an arbitrary and an unreasonable abuse of
discretion, its determination that there is or is not such a combination and its determination of the
project and the area constituting each such unit within the project shall be final and conclusive.
(4) The costs of acquiring or improving, or acquiring and improving, each such improvement program
shall be segregated for the levy of assessments, and an equitable share of the incidental costs shall be
allocated to each such unit.
32- 11.5 -607. Effect of estimates.
(1) No estimate of cost required or authorized in this article shall constitute a limitation upon such cost
or a limitation upon the rights and powers of the board or of any officers, agents, or employees of the
Fountain Creek District, except as otherwise expressly stated in this article.
(2) No assessment, however, shall exceed the amount of the estimate of maximum special benefits
from the project to any tract assessed.
32 -11.5 -608. Fixing hearing and notice.
(1) In the provisional order the board shall set a time at least twenty days thereafter and a place at
which the owners of the tracts to be assessed or any other persons interested therein may appear
before the board and be heard as to the propriety and advisability of acquiring or improving, or
acquiring and improving, the assessment project provisionally ordered.
(2) Notice shall be given:
(a) By publication; and
(b) By mail.
(3) Proof of publication shall be by affidavit of the publisher.
(4) Proof of mailing shall be by affidavit of the engineer, secretary, or any deputy mailing the notice
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(5) Proof of publication and proof of mailing shall be maintained in the records of the Fountain Creek
District until all the assessments pertaining thereto have been paid in full, including principal, interest,
any penalties, and any collection costs.
32- 11.5 -609. Content of notice.
(1) The notice shall describe:
(a) The kind of project proposed (without mentioning minor details or incidentals); (b) The estimated
cost of the project, and the part or portion, if any, to be paid from sources other than assessments;
(c) The basis for apportioning the assessments, which assessment shall be in proportion to the special
benefits derived to each of the several tracts comprising the assessable property and on a front -foot,
area, zone, or other equitable basis;
(d) The number of installments and the time in which the assessments are payable;
(e) The maximum rate of interest on unpaid installments of assessments;
(f) The extent of the improvement district to be assessed (by boundaries or other brief description);
(g) The time and the place when and where the board will consider the ordering of the proposed project
and will hear all complaints, protests, and objections that may be made in writing and filed with the
secretary of the Fountain Creek District at least three days prior thereto or may be made verbally at the
hearing concerning the same by the owner of any tract to be assessed or by any person interested;
(h) The fact that the description of the tracts to be assessed, the maximum amount of benefits
estimated to be conferred on each such tract, and all proceedings in the premises are on file and can
be seen and examined at the office of the secretary during business hours at any time by any person
so interested; and
(i) That regardless of the basis used for apportioning assessments, in cases of wedge- shaped, V-
shaped, or any other irregular- shaped tracts, an amount apportioned thereto shall be in proportion to
the special benefits thereby derived.
32- 11.5 -610. Subsequent modifications.
(1) All proceedings may be modified or rescinded wholly or in part by resolution adopted by the board at
any time prior to the passage of the resolution adopted pursuant to section 32- 11.5 -614 creating the
improvement district and authorizing the project.
(2) No substantial change in the improvement district, details, preliminary plans, specifications, or
estimates shall be made after the first publication or mailing of notice to property owners, whichever
occurs first, except for any deletion of a portion of a project and property from the proposed
improvement program for the improvement district or for any assessment unit.
(3) The engineer, however, has the right to make minor changes in time, plans, and materials entering
into the work at any time before its completion.
MR
32- 11.5 -611. Provisional order hearing
(1) On the date and at the place fixed for the provisional order hearing, any property owners interested
in such project may by specific and written complaints, protests, or objections present their views in
respect to the proposed project to the board or may present them orally. The board may adjourn the
hearing from time to time.
(2) After the hearing has been concluded, after all written complaints, protests, and objections have
been read and duly considered, and after all persons desiring to be heard in person have been heard,
the board shall consider the arguments, if any, and any other relevant material put forth.
(3) Thereafter if the board determines that it is not for the public interest that the proposed project or a
part thereof be made, the board shall make an order by resolution to that effect; and thereupon the
proceeding for the project or for any part thereof determined against by such order shall stop and shall
not be begun again until the adoption of a new resolution.
(4) Any complaint, protest, or objection to the regularity, validity, and correctness of the proceedings
and instruments taken, adopted, or made prior to the date of the hearing shall be deemed waived
unless presented in writing on specific grounds at the time and in the manner specified in this article.
32- 11.5 -612. Appeal from adverse order.
Any person filing a written complaint, protest, or objection on any one or more specific grounds as
provided in section 32- 11.5 -611, shall have the right within thirty days after the board has finally passed
on such complaint, protest, or objection by resolution, as provided in section 32- 11.5 -611 (3), or as
provided in section 32- 11.5 -614 (1), to commence an action or suit in any court of competent
jurisdiction to correct or to set aside only such a determination of the board on any such specific and
written complaint, protest, or objection; but thereafter all actions or suits attacking the validity of the
preliminary plans, any preliminary estimate of cost, assessment plat, other proceedings, and any
maximum amount of benefits shall be perpetually barred.
32- 11.5 -613. Post - hearing procedure
(1) After the provisional order hearing is held and after the board has disposed of all complaints,
protests, and objections, verbal and in writing, the board shall determine whether to proceed with the
improvement district and with each assessment unit therein, if there is more than one.
(2) If the board desires to proceed and desires any modification, by motion or by resolution, it shall
direct the engineer to prepare and to present to the board:
(a) A revised and detailed estimate of the total cost, including without limitation the cost of acquiring or
improving, or acquiring and improving, each proposed improvement program and of each of the
incidental costs, which revised estimate shall not constitute a limitation for any purpose, except as
otherwise provided in this article;
(b) Full and detailed plans and specifications for each proposed improvement program designed to
permit and to encourage competition among the bidders if any improvements are to be acquired by
construction contract; and
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(c) A revised map and assessment plat showing, respectively, the location of each improvement
program and the tracts to be assessed therefor, excluding any area or program not before the board at
a provisional order hearing.
(3) That resolution, a separate resolution, or the resolution creating the improvement district may
combine or may divide the proposed improvement program or programs pertaining to the improvement
district and any other facilities into suitable construction units for the purpose of letting separate and
independent contracts, regardless of the extent of any improvement program constituting an
assessment unit and regardless of whether a portion or none of the cost of any project is to be defrayed
other than by the levy of special assessments.
(4) Nothing in this article shall be construed as not requiring the segregation of costs of unrelated
improvement programs for assessment purposes, as provided in this article.
32- 11.5 -614. Creation of district.
(1) When an accurate estimate of cost, full and detailed plans and specifications, and the map and
assessment plat are prepared, presented, and satisfactory to the board, regardless of whether the
preliminary estimate of cost, plans, and specifications, map and assessment plat are modified pursuant
to section 32- 11.5 -613, the board shall by resolution create the Fountain Creek District and order the
proposed project to be acquired or improved, or acquired and improved.
(2) The resolution shall prescribe:
(a) The extent of the improvement district by boundaries or by other brief description and similarly of
each assessment unit therein, if there is more than one;
(b) The kind and location of each improvement program proposed (without mentioning minor details);
(c) The amount or the proportion of the total cost to be defrayed by assessments, the method of levying
assessments, the number of installments, and the times in which the costs assessed will be payable;
and
(d) The character and the extent of any construction units.
(3) The engineer may further revise such cost, plans and specifications, and the map and assessment
plat from time to time for all or any part of any project; and the resolution may be appropriately
amended prior to letting any construction contract therefor and prior to any property being acquired or
any work being done other than by independent contract let by the Fountain Creek District.
(4) The resolution, as amended, if amended, shall order the work to be done as provided in this article.
32 -11.5 -615. Methods of acquisition or improvement.
(1) Any construction work for any project or portion thereof shall be done in any one or more of the
following three ways:
(a) By independent contract;
(b) By use of district owned or leased equipment and district officers, agents, and employees; or
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(c) By any public body or by the federal government acquiring or improving a project or any interest
therein which is authorized in this article which results in general benefits to the Fountain Creek District
and in special benefits to the assessable property being assessed therefor by the Fountain Creek
District within its boundaries and within an improvement district therein created therefor.
(2) Any project or any interest therein not involving construction work pertaining to a capital
improvement may be acquired or improved pursuant to any appropriate contract, or otherwise,
including, without limitation, the condemnation or other acquisition of real property. In such case
nothing in subsection (1) of this section nor in sections 32- 11.5 -616 to 32- 11.5 -619 shall be applicable.
(3) Notwithstanding a project authorized in this article or any interest therein may not be owned by the
Fountain Creek District nor be directly acquired or improved, or acquired and improved, nor the costs
thereof directly incurred by the Fountain Creek District, and notwithstanding the project authorized in
this article or any interest therein may be located on land, an easement or other interest therein, or
other real property owned by the federal government or by a public body, the Fountain Creek District
has the power:
(a) To acquire or improve, or both, or to cooperate in the acquisition or improvement of, or both, the
project or any interest therein with the federal government or with any public body pursuant to
agreement between or among the Fountain Creek District and such other bodies corporate and politic
so long as the project or the interest therein acquired or improved, or both, results in general benefits to
the Fountain Creek District and in special benefits to the assessable property being assessed therefor
by the Fountain Creek District within its boundaries and within the improvement district therein created
therefor;
(b) To levy special assessments on such assessable property to defray all or any part of the costs of
the project or any interest therein or to defray all or any part of the Fountain Creek District's share of
such costs if all costs are not being defrayed by the Fountain Creek District; and
(c) To issue bonds and assessment debentures and to exercise other powers granted in this article and
pertaining to such acquisition or improvement, or both.
32 -11.5 -616. Construction contracts.
(1) No contract for doing construction work for acquiring or improving the project contemplated shall be
made or awarded nor shall the board incur any expense or any liability in relation thereto, except for
maps, plats, diagrams, estimates, plans, specifications, and notices until after the provisional order
hearing and notice thereof provided for in this article have been had and given.
(2) The board may advertise by publication for proposals for doing the work whenever the board
desires, but the contract shall not be made or awarded before the time stated in subsection (1) of this
section.
(3) In the case of construction work done by independent contract for any project or portion thereof in
any improvement district, the engineer or any purchasing officer of the Fountain Creek District, as
provided by the board, shall request competitive bids and publish notice stating that bids will be
received at a time and at a place designated therein.
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(4) The Fountain Creek District may contract only with the responsible bidder submitting the lowest and
best bid upon proper terms.
(5) The district has the right to reject any and all bids and to waive any irregularity in any bid.
(6) Any contract may be let on a lump -sum or on a unit basis.
(7) No contract shall be entered into for such work unless the contractor gives an undertaking with a
sufficient surety approved by the board and in an amount fixed by it for the faithful performance of the
contract, substantially as required of a school board and a school district by sections 38 -26 -101 and 38-
26 -105 to 38 -26 -107, C.R.S., as from time to time amended, except as expressly otherwise provided in
this article.
(8) Upon default in the performance of any contract, the engineer, or any purchasing officer, as directed
by motion of the board, may advertise and may relet the remainder of the work without further
resolution and may deduct the cost from the original contract price and may recover any excess cost by
suit on the original bond, or otherwise.
(9) All contracts shall provide, among other things, that the person entering into the contract with the
Fountain Creek District will pay for all materials furnished and for services rendered for the performance
of the contract and that any person furnishing the materials or rendering the services may maintain an
action to recover for the same against the obligor in the undertaking as though the person was named
therein. Final settlement shall be effected substantially as required by section 38 -26 -107, C.R.S., as
from time to time amended, and all laws thereunto enabling.
(10) If any contract or any agreement is made in violation of the provisions of this section, it shall be
voidable, and no action shall be maintained thereon by any party thereto against the Fountain Creek
District.
(11) To the extent the Fountain Creek District makes any payment thereunder, such contract or
agreement shall be valid, and any such payment may be included in any cost defrayed by the levy of
assessments unless theretofore the Fountain Creek District elects to void the contract or the agreement
in its entirety and to recover any such payment from the party to whom made.
(12) The board, except as expressly limited in this article, may in the letting of contracts impose such
conditions upon bidders with regard to bonds and to securities, and such guaranties of good and faithful
performance, completion of any work, and the keeping of the same in repair, and may provide for any
further matter or thing in connection therewith as may be considered by the board to be advantageous
to the Fountain Creek District and to all interested persons.
32- 11.5 -617. Extra work authorized - payment
Extra work may arise in connection with any project mentioned in this article and not particularly
provided for in the plans, specifications, estimates, bids and contracts; and such extra work shall be
performed by the contractor at the direction of the engineer at cost of labor and materials and overhead
including superintendence as set forth in the plans, specifications, or construction contract, such
amount to be included in the assessment for the project (but not exceeding in the aggregate the
estimated maximum special benefits to any tract so assessed) or to be paid out of the general or other
funds of the Fountain Creek District available therefor, in the discretion of the board.
32- 11.5 -618. Construction by district.
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(1) In the case of construction work done by the use of district owned or leased equipment and by
district officers, agents, and employees for any project or any portion thereof in any improvement
district, supplies and materials may be purchased or may be otherwise acquired therefor.
(2) All supplies and materials purchased by the Fountain Creek District for an improvement district
costing five hundred dollars or more shall be purchased only after the purchasing officer has given
notice by publication therefor.
(3) The district shall accept the lowest and best bid, the kind, quality, and material being equal, but the
Fountain Creek District has the right to reject all bids, to waive any irregularity in any bid, and to select
a single item from any bid when so stated in the invitation to bid.
(4) The provision as to bidding shall not apply to the purchase of patented and manufactured products
offered for sale in a noncompetitive market or solely by a manufacturer's authorized dealer.
32- 11.5 -619. Cooperative construction.
(1) In the case of construction work done by agreement with the Fountain Creek District and with one or
more public bodies or with the federal government (or any combination thereof) for any project or any
portion thereof in any improvement district, the Fountain Creek District may enter into and carry out any
contract or may establish or comply with the rules and regulations concerning labor and materials and
other related matters in connection with any project or any portion thereof, as the Fountain Creek
District may deem desirable or as may be requested by the federal government or by any public body
which is a party to any such contract with the Fountain Creek District that may assist in the financing of
any project or any part thereof, regardless of whether the Fountain Creek District is a party to any
construction contract or to any other contract pertaining to incurring costs of the project.
(2) Any project, any portion of the cost of which may be defrayed by the Fountain Creek District by the
levy of assessments under this article, may be acquired with the cooperation and the assistance of, or
under a contract let by, or with labor, or supplies and materials, or all of such furnished by any one or
more such public bodies or by the federal government (or any combination thereof).
(3) Advantage may be taken of any offer from any source to complete any project on a division of
expense or responsibility.
(4) The engineer, on behalf of and in the name of the Fountain Creek District, is authorized to acquire
or improve, or acquire and improve, any such project in such a manner when so authorized by the
resolution creating the improvement district or by any amendment thereto.
32- 11.5 -620. Use of existing improvements.
After the provisional order hearing and at the time of the passage of the resolution creating any
improvement district and any project for the improvement district, or any amendment thereof, if any
tract or the property of any railway company to be assessed in the improvement district has the whole
or any part of the proposed project, conforming to the general plan, the same may be adopted in whole
or in part or may be changed to conform to the general plan, if deemed practical; and the owner of such
real estate, when the assessment is made, shall be credited with the amount which is saved by reason
of adapting or of adopting such existing improvements.
32- 11.5 -621. Assessment debentures.
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(1) For the purpose of paying any contractor of or otherwise defraying any cost of the project in
connection with any improvement district as the same becomes due from time to time until moneys are
available therefor from the levy and collection of assessments and from any issuance of assessment
bonds, the board may issue assessment debentures on the behalf and in the name of the Fountain
Creek District as provided in sections 32- 11.5 -501 (3) and 32- 11.5 -502 to 32- 11.5 -526 and elsewhere
in this article, except as otherwise provided in sections 32- 11.5 -621 to 32- 11.5 -631.
(2) Any assessment debentures issued for any construction work shall be issued only upon estimates
of the engineer.
(3) Any assessment debentures shall be special obligations payable from designated special
assessments, any proceeds of special assessment bonds, and any other moneys designated to be
available for the redemption of such debentures and authorized in this article to be pledged as
additional security for the payment of such bonds.
32- 11.5 -622. Issuance of assessment securities.
(1) The board has power in connection with any improvement district to issue, on the behalf and in the
name of the Fountain Creek District, bonds in an amount not exceeding the estimated cost of the
project or part thereof to be defrayed by the levy and collection of assessments, or if the bonds are
issued after the levy of assessments, in an aggregate principal amount not exceeding the aggregate
amount of unpaid assessments pledged for the payment of the bonds as provided in sections 32 -11.5-
501 (3) and 32- 11.5 -502 to 32- 11.5 -526 and elsewhere in this article, except as otherwise provided in
sections 32 -11.5 -622 to 32- 11.5 -631.
(2) Any assessment bonds may be issued at public or private sale to defray the cost of the project,
including any temporary advances evidenced by assessment debentures or otherwise and all proper
incidental expenses.
(3) The board may enter into a contract to sell assessment debentures and assessment bonds at any
time; but, any other provisions of this article notwithstanding, if the board so contracts before it awards
a construction contract or otherwise contracts for acquiring or improving, or acquiring and improving,
the project, the board may terminate the contract to sell such securities if, before the awarding of the
construction contract or otherwise contracting for the acquisition or improvement, or acquisition and
improvement, of the project, the board determines not to acquire or improve, or acquire and improve,
the project, and if the board has not elected to proceed under section 32- 11.5 -615 other than by
independent contract pursuant to section 32- 11.5 -615 (1) (a), if at all.
32- 11.5 -623. Purchase price and interest.
(1) Any district securities designated in section 32 -11.5 -501 (3) and otherwise issued under this article,
both assessment bonds and assessment debentures, as may be provided by the board in a resolution
authorizing their issuance and the maximum net effective interest rate thereof and in any indenture or
other proceedings pertaining thereto, may be issued at, above, or below par, at a discount not
exceeding seven percent of the principal amount thereof, but they may not be issued at a price such
that the net effective interest rate of the issue of securities exceeds the maximum net effective interest
rate authorized.
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(2) Such bonds and debentures shall bear interest at a rate such that the net effective interest rate of
the issue of bonds or debentures does not exceed the maximum net effective interest rate authorized.
(3) No bond interest rate shall at any time exceed the interest rate (or lower or lowest rate if more than
one) borne by the unpaid assessments, but any such bond interest rate may be the same as or less
than any assessment interest rate, subject to the limitations of this section, as the board may
determine.
32- 11.5 -624. Use of assessments - payment of assessment securities
(1) The assessments pertaining to any improvement district when levied shall be and shall remain a lien
on the respective tracts assessed until paid as provided in this article. (2) When the assessments
pertaining to the improvement district are collected (including principal, interest, and any penalty), they
shall be placed in a special fund or special account and as such shall at all times constitute a sinking
fund or sinking account for and be deemed specially appropriated to the payment of any assessment
debentures not funded with bond proceeds and the payment of the assessment bonds pertaining to the
improvement district and the interest thereon, and shall not be used for any other purpose until such
securities and the interest thereon are fully paid; or if no such securities are issued, all assessments
upon their payment shall be so appropriated and used to defray the cost of the project.
(3) Any assessment debentures not funded with bond proceeds and the assessment bonds, including
both principal and interest, shall be payable only out of moneys collected on account of the
assessments (including installments thereof, interest thereon, and any penalties) for the project
pertaining to the improvement district to which such securities pertain, except as provided in this article.
32- 11.5 -625. Bond limitations and details
(1) All assessment bonds issued under this article shall be issued by the treasurer upon estimates of
the engineer, or if bonds are issued after the levy of assessments, in an aggregate principal amount not
exceeding the aggregate amount of unpaid assessments pledged for the payment of the bonds, and
upon order of the board by resolution.
(2) The bonds shall mature in no event after that date which is one year after the last assessment
installment payment date.
32 -11.5 -626. Prior redemption provisions
The board may provide for the redemption prior to maturity at the option of the Fountain Creek District
of any of the bonds or debentures designated in section 32- 11.5 -501 (3), in such order, by lot or
otherwise, at such time or times, without or with the payment of such premium not exceeding seven
percent of the principal amount of each bond or other security so redeemed, and otherwise upon such
terms as may be provided by the board in the resolution authorizing the issuance of the securities or
other instrument pertaining thereto.
32- 11.5 -627. Special obligations
(1) Assessment debentures and assessment bonds issued under this article shall constitute special
obligations of the Fountain Creek District and shall not be a debt of the Fountain Creek District. The
district shall not be liable on such securities except as otherwise expressly provided in this article, nor
,.
shall the Fountain Creek District thereby pledge its full faith and credit for their payment. Such
securities (other than debentures funded with bond proceeds) shall not be payable out of any funds
other than the special assessments (including installments thereof, interest thereon, and any penalties)
and other funds and moneys pledged as additional security for the payment thereof, as authorized in
this article.
(2) Each assessment debenture and assessment bond issued under this article shall recite in
substance that the bond and the interest thereon are payable solely from the special assessments and
such other funds and moneys pledged to the payment thereof.
32- 11.5 -628. Primary additional security.
(1) The Fountain Creek District shall additionally secure the payment of the assessment debentures
and the assessment bonds pertaining to any improvement district as provided in this article.
(2) Whenever there is a deficiency in any improvement district to meet payment of such outstanding
assessment securities and interest due thereon, it shall be paid out of the Fountain Creek District's
special surplus and deficiency fund.
(3) The Fountain Creek District shall pay the assessment securities pertaining to any improvement
district when due and the interest due thereon from any available moneys of the Fountain Creek District
and reimburse itself by collecting the unpaid assessments due the improvement district, whenever:
(a) Four -fifths of the outstanding bonds pertaining to the improvement district have been paid; and
(b) For any reason the remaining assessments pertaining to the improvement district are not paid in
time to take up the final bonds of the improvement district and the interest due thereon; and
(c) There is not sufficient money in the special surplus and deficiency fund.
(4) When all outstanding assessment securities pertaining to an improvement district have been paid
and any moneys remain to the credit of such district, they shall be transferred to the special surplus and
deficiency fund.
32- 11.5 -629. Permissive additional security
(1) In addition to the additional security provided for in section 32- 11.5 -628, and not in limitation thereof,
the Fountain Creek District may further additionally secure the payment of assessment debentures and
assessment bonds pertaining to any improvement district, both as to principal and interest, as may be
provided in accordance with this section.
(2) In consideration of general benefits conferred on the Fountain Creek District at large from the
acquisition by construction, or otherwise, of local improvements, the Fountain Creek District, prior to the
issuance of any assessment debentures or assessment bonds pertaining to any improvement district in
this article, may contract by resolution with the holders thereof that the payment of such securities
pertaining to the improvement district, both as to principal and interest, as the same become due, is
additionally secured by a pledge of moneys in a special fund or special account created therefor into
which the Fountain Creek District covenants to deposit the proceeds of general (ad valorem) property
taxes to be levied not earlier than the date of the debentures or bonds of any such series nor later than
two years after the maturity date thereof or last maturity date of any serial bonds of any issue, not
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exceeding in any one year in the aggregate for all improvement districts the limitation pertaining to
assessment bonds in section 32- 11.5 -216 (1) (d). After the issuance of any such securities, the
Fountain Creek District shall levy such general (ad valorem) taxes pursuant to such contract; but any
such levy shall be diminished to the extent other funds of the Fountain Creek District available therefor
are appropriated to and deposited in such fund or account.
(3) Prior to the redemption of all such securities, including both principal and interest, the proceeds of
such taxes and any moneys deposited in such fund or account in lieu of such taxes shall be disbursed
from the fund or account only for the payment of the principal of and interest on the securities, and any
prior redemption premium pertaining thereto. After the securities have been redeemed in full, any
moneys remaining in the fund or account and pertaining only to the improvement district shall be
deposited in the surplus and deficiency fund.
(4) Securities of the Fountain Creek District pertaining to any improvement district payable from
assessments, which payment shall be additionally secured as provided in section 32- 11.5 -628, or in
both that section and this section, as the board may determine, shall not be subject to the debt
limitation nor exhaust the debt incurring power of the Fountain Creek District, nor shall such securities
be required to be authorized at any election. Such securities shall not be held to constitute a prohibited
lending of credit or donation nor to contravene any constitutional or statutory limitation or restriction.
32- 11.5 -630. Redemption of securities
(1) Whenever considered advisable by the treasurer, he may, and whenever funds may be in his hands
to the credit of any improvement district exceeding the amount of interest on the unpaid principal
becoming due on and prior to one year next after the last interest payment date, and, if maturing
serially, the principal becoming due on the next principal payment date, he shall, subject to the
provisions concerning the payment of assessment debentures and assessment bonds pertaining to an
improvement district prior to maturity in the securities and in any resolution pertaining to their issuance,
by publication at least once not less than fifteen days prior to the redemption date, call in a suitable
number of securities of the improvement district for payment, for the principal amount thereof, accrued
interest to the redemption date, and any prior redemption premium due thereon.
(2) After the redemption date so designated, interest on the securities so called shall cease. The
Fountain Creek District, however, may provide that such securities be redeemed only on interest
payment dates.
(3) The notice shall specify the securities so called by number, and all such securities shall be paid in
the order designated in any such resolution.
(4) The holder of any such securities may at any time furnish his post - office address to the treasurer,
and in such case a copy of such advertisement shall be mailed by the treasurer to the holder of the
securities called at such address within three days of the date of such publication.
32- 11.5 -631. Rights and powers of security holders.
(1) Subject to any contractual limitations binding upon the holders of any issue or series of assessment
debentures or assessment bonds or the trustee therefor, including but not limited to the restriction of
the exercise of any remedy to a specified proportion, percentage, or number of such holders, any
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holder of such securities or trustee therefor has the right and power for the equal benefit and protection
of all holders of the securities similarly situated:
(a) By mandamus or by other suit, action, or proceeding at law or in equity to enforce his rights against
the Fountain Creek District, the board, and any other of the officers, agents, and employees of the
Fountain Creek District, and to require and to compel the Fountain Creek District, the board, or any
such officers, agents, or employees to perform and to carry out their respective duties, obligations, or
other commitments under this article and under their respective covenants and agreements with the
holder of such securities;
(b) By action or by suit in equity to require the Fountain Creek District to account as if it is the trustee of
an express trust;
(c) By action or by suit in equity to have appointed a receiver, which receiver may take possession of
any accounts and may collect, receive, and apply all assessments, other revenues, and other moneys
pledged for the payment of the securities in the same manner as the Fountain Creek District itself might
do in accordance with the obligations of the Fountain Creek District; and
(d) By action or by suit in equity to enjoin any acts or things which might be unlawful or in violation of
the rights of the holder of any such securities and to bring suit thereupon.
32- 11.5 -632. Statement of cost of project.
Upon the completion of any project in any improvement district or, in the case of assessment units or
sewers, upon completion from time to time of an improvement program in any assessment unit or any
parts of sewers affording complete drainage for any part of the improvement district, or after the
determination of the net cost to the Fountain Creek District, and upon the acceptance thereof by the
board, or whenever the total cost of such project or any of such part of sewers can be definitely
ascertained, and upon the board's determination to assess all or a part of the cost thereof, the engineer
shall prepare and shall furnish to the board a statement showing the total cost of the project or of any
such part thereof.
32- 11.5 -633. Order for assessment roll and its form.
(1) Following the furnishing of the statement of the cost of the project, the board by resolution shall:
(a) Determine the cost of the project to be paid by the assessable property in the improvement district;
(b) Order the engineer to make out an assessment roll containing, among other things
(1) The name of each last -known owner of each tract to be assessed or, if not known, that the name is
unknown; and
(II) A description of each tract to be assessed and the amount of the proposed assessment thereon,
apportioned upon the basis for assessments stated in the provisional order for the hearing on the
project;
(c) Cause a copy of the resolution to be furnished by the secretary to the engineer
(2) In fixing the amount or the sum of money that may be required to pay the cost of the project, the
board need not necessarily be governed by the estimates of such cost provided for in this article, but
the board may fix such other sum within the limits prescribed as it may deem necessary to cover the
cost of the project.
(3) If by mistake or otherwise any person is improperly designated in the assessment roll as the owner
of any tract or if the same is assessed without the name of the owner or in the name of a person other
than the owner, such assessment shall not for that reason be vitiated, but it shall in all respects be as
valid upon and against such tract as though assessed in the name of the owner thereof. When the
assessment roll has been confirmed, such assessment shall become a lien on such tract and shall be
collected as provided by law
32- 11.5 -634. Assessment computations and limitations
(1) If the assessment is made upon the basis of frontage, the engineer shall assess each tract with
such relative portion of the whole amount to be levied as the length of front of such premises bears to
the whole frontage of all the tracts to be assessed, and the frontage of all tracts to be assessed shall be
deemed to be the aggregate number of feet as determined for assessment by the engineer.
(2) If the assessment is directed to be according to an area or zone or another equitable basis other
than a front -foot basis, the engineer shall assess upon each tract such relative portion of the whole sum
to be levied as is proportionate to the estimated benefit according to such basis.
(3) Regardless of the basis used, in cases of wedge- shaped or V- shaped or any other irregular- shaped
tracts, an amount apportioned thereto shall be in proportion to the special benefits thereby derived.
(4) No assessment shall exceed the amount of the estimate of maximum special benefits to the tract
assessed, as provided in section 32- 11.5 -607 (2).
(5) Any amount which would be assessed against any tract in the absence of both limitations in
subsections (3) and (4) of this section shall be defrayed by other than the levy of assessments.
32- 11.5 -635. Determination of assessable tracts.
The board shall determine what amount or part of every expense shall be charged as an assessment
and the tracts upon which the same shall be levied, and as often as the board deems it expedient, it
shall require all of the several tracts chargeable therewith respectively to be reported by the secretary
to the engineer for assessment.
32- 11.5 -636. Preparation of proposed roll.
(1) Upon receiving the report mentioned in section 32 -11.5 -633, the engineer shall make an
assessment roll and state a proposed assessment therein upon each tract so reported to him, and by
such proposed assessments he shall defray the whole amount of all charges so directed to be levied
upon each of such tracts respectively. When completed, he shall report the assessment roll to the
board.
(2) When any assessment is reported by the engineer to the board as directed in this section, the same
shall be filed in the office of the secretary and numbered.
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32 -11.5 -637. Notice of assessment hearing.
(1) Upon receiving the assessment roll, the board, by resolution, shall:
(a) Fix a time and a place when and where complaints, protests, and objections that may be made in
writing or verbally concerning the same by the owner of any tract or by any person interested may be
heard; and
(b) Order the secretary to give notice of the hearing.
(2) The secretary shall give notice by publication and by mail of the time and the place of such hearing,
which notice shall also state:
(a) That the assessment roll is on file in his office;
(b) The date of filing the same;
(c) The time and the place when and where the board will hear all complaints, protests, or objections
that may be made in writing or verbally to the assessment roll and to the proposed assessments by the
parties thereby aggrieved; and
(d) That any complaint, protest, or objection to the regularity, validity, and correctness of the
proceedings, of the assessment roll, of each assessment contained therein, and of the amount thereof
levied on each tract shall be deemed waived unless filed in writing on specific grounds with the
secretary at least three days prior to the assessment hearing
32- 11.5 -638. Assessment hearing.
(1) At the time and the place so designated, the board shall hear and shall determine any written
complaint, protest, or objection filed as provided in section 32- 11.5 -637, any verbal views expressed in
respect to the proposed assessments, the assessment roll, or the assessment procedure, and the
board may adjourn the hearing from time to time.
(2) The board by resolution has the power in its discretion to revise, correct, confirm, or set aside any
assessment and to order that such assessment be made de novo.
32 -11.5 -639. Levy of assessments
(1) After the assessment roll is in final form and is so confirmed by resolution, the Fountain Creek
District by the same or by a supplemental resolution shall by reference to such assessment roll as so
modified, if modified, and as confirmed by such resolution, levy the assessments in the roll.
(2) The board shall cause the resolution levying the assessments to be published at least one time in a
newspaper of general circulation in the improvement district.
(3) No assessment shall be levied for any capital improvements acquired by the Fountain Creek District
and located or to be located on any land until the board by the adoption of such resolution or otherwise
determines that the Fountain Creek District has the right to possession of such land or an interest
therein for the purpose of acquiring the improvements.
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(4) Such decision and resolution shall be a final determination of the regularity, validity, and correctness
of the proceedings, of the assessment plat, of the assessment roll, of each assessment contained
therein, and of the amount thereof levied on each tract.
(5) Such determination by the board shall be conclusive upon the owners of the property assessed.
(6) The roll shall be prima facie evidence in all courts and tribunals of the regularity of all proceedings
preliminary to the making thereof and of the validity of the assessments and the assessment roll.
32- 11.5 -640. Appeal of adverse determination
(1) Within the fifteen days immediately succeeding the publication of the assessment resolution, any
person who has filed a complaint, protest, or objection on specific grounds in writing, as provided in this
article, has the right to commence an action or a suit in any court of competent jurisdiction to correct or
to set aside such determination.
(2) Thereafter all actions or suits attacking the regularity, validity, and correctness of the proceedings of
the assessment plat, of the assessment roll, of each assessment contained therein, and the amount
thereof levied on each tract, including without limitation the defense of confiscation, shall be perpetually
barred.
32 -11.5 -641. Transfer of roll to county treasurer
(1) Upon the expiration of such fifteen -day period for any such appeal, the secretary shall forthwith note
on the assessment roll or by separate instrument each assessment, if any, the regularity, validity, or
correctness of which is challenged in such an action or suit.
(2) Thereupon the secretary shall forthwith certify under the seal of the Fountain Creek District and
transmit to the county treasurer of each county in which the improvement district is located, wholly or in
part, the assessment roll with the assessment resolution, with a notation of any pending legal actions
and suits and with the secretary's warrant for the collection of the assessments levied against the
assessable property within the county. The county treasurer shall receipt for the same and all such rolls
shall be numbered for convenient reference.
32- 11.5 -642. Thirty -day payment period - deferred payments.
(1) All assessments made in pursuance of the assessment resolution shall be due and payable without
demand not earlier than thirty -one days after its publication upon its final passage and within sixty days
after such publication.
(2) Each such assessment or any part thereof may at the election of the owner be paid in installments
with interest as provided in this article, whenever the board so authorizes the payment of assessments.
(3) Failure to pay the whole assessment within such period of thirty days shall be conclusively
considered an election on the part of all persons interested, whether under disability or otherwise, to
pay in installments the amount of the assessment then unpaid.
(4) All persons so electing to pay in installments shall be conclusively considered as consenting to the
project for which each such assessment was levied, and such election shall be conclusively considered
as a waiver of all rights to question the power of jurisdiction of the Fountain Creek District to acquire or
improve, or acquire and improve, the project, the quality of the work, the regularity or sufficiency of the
proceedings, or the validity or the correctness of the assessment.
(5) The owner of any tract assessed may at any time pay the whole unpaid principal and the interest
accrued to the next interest payment date, together with penalties if any. The board may require in the
assessment resolution the payment of a premium for any prepayment not exceeding seven percent of
each installment of principal so prepaid.
(6) Subject to the foregoing provisions, all installments, both of principal and interest, shall be payable
at such times as may be determined in and by the assessment resolution.
32- 11.5 -643. Acceleration upon delinquency.
(1) Failure to pay any installment, whether principal or interest, when due shall ipso facto cause the
whole amount of the unpaid principal to become due and payable immediately at the option of the
Fountain Creek District, security holder, or trustee therefor initiating foreclosure proceedings, the
exercise of such option to be indicated by the commencement of foreclosure proceedings for not only
each delinquent installment but also all other unpaid installments of any assessment.
(2) At any time prior to the day of sale, the owner may pay the amount of delinquent installments, with
accrued interest, all penalties, and cost of collection accrued, including but not necessarily limited to
any attorneys' fees, and shall thereupon be restored to the right thereafter to pay in installments in the
same manner as if default had not been made.
32- 11.5 -644. Limitations upon deferred payments
(1) In case of such election to pay in installments, the assessment shall be payable in not less than two
nor more than twenty substantially equal annual installments or not less than four nor more than forty
substantially equal semiannual installments of principal.
(2) Interest in all cases on the unpaid principal accruing from the date of publishing the assessment
resolution upon its final passage until the respective installment due dates shall be payable annually or
semiannually at a rate not exceeding eight percent per annum; except that, in the case of an
assessment initiated subsequent to July 6, 2009, such interest shall not exceed the maximum rate fixed
by the board in the notice of the provisional order hearing given pursuant to sections 32 -11.5 -608 and
32 -11.5 -609.
(3) Nothing in this article shall limit the discretion of the board in determining whether assessments
shall be payable in installments and the time the first installment of principal or of interest, or of both,
and any subsequent installments thereof shall become due.
(4) The board in the assessment resolution shall state the number of installments in which assessments
may be paid, the period of payment, the rate of interest upon the unpaid installments of principal to their
respective due dates, any privileges of making prepayments, and any premium to be paid to the
Fountain Creek District for exercising any such privilege, the rate of interest upon unpaid principal and
accrued interest after any delinquency at the rate of one percent per month, or any fraction thereof, and
any penalties and any collection costs payable after delinquency.
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32- 11.5 -645. Assessment liens.
(1) The payment of the amount so assessed, including each installment thereof, the interest thereon,
and any penalties and collection costs shall be secured by an assessment lien upon the tract assessed
from the date of publication of the assessment resolution.
(2) Each such lien upon each tract assessed shall:
(a) Be subordinate and junior to any lien thereon for any general (ad valorem) taxes, whether prior in
time or not;
(b) Be prior and superior to any assessment lien thereon subsequently levied by the Fountain Creek
District or by any public body;
(c) Be subordinate and junior to any assessment lien thereon theretofore levied by the Fountain Creek
District or by any public body; and
(d) Be prior and superior to all liens, claims, mortgages, other encumbrances, and titles other than the
liens of assessments and general taxes.
(3) All purchasers, mortgagees, or encumbrancers of any such tract shall hold the same subject to such
lien so created, whether prior in time or not.
(4) Each such assessment lien shall continue as to unpaid installments, principal, interest, and any
penalties and costs until such assessments, the principal thereof, interest thereon, and any penalties
and costs pertaining thereto shall be fully paid, unless terminated by the foreclosure of any prior and
superior lien on the tract assessed.
(5) But unmatured installments shall not be deemed to be within the terms of any general covenant or
warranty.
(6) No statute of limitations shall begin to run against any assessment or the assessment lien to secure
its payment until after the last installment of principal thereof becomes due.
(7) The Fountain Creek District may use any available funds or moneys for the satisfaction of any lien
prior in right to any special assessment lien created by the Fountain Creek District.
(8) In the resale of any property to which the Fountain Creek District has so acquired title, the Fountain
Creek District shall use its best efforts to sell the property for an amount at least equal to the funds or
moneys so used plus the amount necessary to satisfy the special assessment lien created by the
Fountain Creek District, including principal, interest, penalties, and collection costs.
(9) The moneys received from such a resale in payment for the property shall be used first to satisfy
such special assessment lien and thereafter to restore to the fund from which any such prior lien was
satisfied and the moneys used therefor.
(10) The Fountain Creek District is authorized to acquire and to dispose of property on which there are
delinquent taxes or assessments, or both.
32 -11.5 -646. Division of tract.
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(1) If any tract is divided after an assessment thereon has been levied and divided into installments and
before the collection of all the installments, the board may require the county assessor to apportion the
uncollected amounts upon the several parts of land so divided according to the proportions thereof
based upon their valuation for assessment for taxes.
(2) The report of such apportionment, when approved, shall be conclusive on all the parties, and all
assessments thereafter made upon such tracts shall be according to such subdivision.
32- 11.5 -647. Surpluses and deficiencies.
(1) If any assessment proves insufficient to pay for the project or the work for which it is levied and the
expense incident thereto, the amount of such deficiency shall be paid from the capital improvements
fund of the Fountain Creek District or from such other account in which moneys are accounted for
which may be made available for such purpose by the board.
(2) If sufficient moneys are not legally available so as to defray the amount of such deficiency as the
respective obligations comprising the cost of the project become due, the Fountain Creek District shall
budget, appropriate, and levy taxes therefor, subject to the limitation pertaining to capital improvements
in section 32- 11.5 -216 (1) (d).
(3) If a greater amount of assessments has been collected than was necessary to defray the cost of the
project of any improvement district to which the assessments pertain, the excess shall be transferred to
the special surplus and deficiency fund of the Fountain Creek District as provided in section 32 -11.5-
628.
32- 11.5 -648. Notice of assessment or installment due.
(1) Each county treasurer to whom an assessment roll is transmitted pursuant to section 32- 11.5 -641
shall give notice by mail and by publication of the levy of the assessments against the assessable
property in the county, of the fact they are payable, and of the last day for their payment, as provided in
section 32- 11.5 -642 (1).
(2) Each such county treasurer shall give notice by mail and by publication of such installment of such
assessments which is payable and of the last day for its payment, as provided in section 32- 11.5 -644
and in the assessment resolution.
(3) Each such notice given by the county treasurer shall:
(a) State the amount of the assessment or of the installment due, except in the case of any published
notice;
(b) State how unpaid principal is payable in installments; and
(c) State the place of payment and the time for it to close.
(4) The failure of the county treasurer to give notice or to do any other act or thing required by this
section shall not affect the assessment or any installment thereof.
32- 11.5 -649. When collections paid district.
All collections made by the county treasurer upon each assessment roll in any calendar month shall be
accounted for and paid over to the Fountain Creek District treasurer on or before the tenth day of the
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next succeeding calendar month, with separate statements for all such collections for each
improvement district.
32- 11.5 -650. Collections by county treasurer.
The county treasurer shall receive payment of all assessments against assessable property located in
the county appearing upon the assessment roll, with interest.
32- 11.5 -651. Collection of delinquent assessments
(1) As soon as any assessment or any installment thereof pertaining to any improvement district
becomes in default, the county treasurer shall mark the same delinquent on the assessment roll,
together with the amount of unpaid principal shown on the assessment roll and accrued interest
thereon to the date of delinquency, and the county treasurer shall within thirty days after such
delinquency certify such amounts as shown thereon to the board of the Fountain Creek District.
(2) The county treasurer shall collect the delinquent assessment, or the delinquent installment and all
other unpaid installments of the assessment, if any, and accrued interest, all penalties, and costs of
collection accrued, in accordance with section 32- 11.5 -643 and other provisions in this article
supplemental thereto, in the same manner and with the same interest and penalties thereon as other
taxes collected by the county treasurer on behalf of the Fountain Creek District. All of the laws of the
state for the assessment and collection of general taxes, including the laws for the sale of real property
for taxes and redemption therefrom, shall be applicable to and shall have the same effect with respect
to the collection of such assessments.
(3) If the board elects by resolution to have the Fountain Creek District foreclose the lien on any
assessable property and secure the payment of any delinquent assessment or delinquent installment
thereof as provided in part 11 of article 25 of title 31, C.R.S., the secretary shall notify each county
treasurer to whom there has been transmitted an assessment roll pertaining to such delinquent
assessments and installments of such election and shall transmit thereto a copy of such resolution.
Thereupon the county treasurer shall take no further action unless the board causes him to be informed
subsequently that the owner of any tract has been restored the right to pay in installments in
accordance with section 32- 11.5 -643 (2) and other provisions in this article supplemental thereto.
32- 11.5 -652. Optional filing of claim of lien
(1) The board may, but is not required, in any assessment resolution or in any resolution supplemental
thereto, provide that the secretary, within thirty days after the expiration of the thirty -day payment period
specified in section 32- 11.5 -642, shall make out, sign, attest with the seal of the Fountain Creek
District, and file for record in the office of the county clerk of each county in which is located assessable
property pertaining to any improvement district, a claim of lien for the unpaid amount due and assessed
against each tract on the assessment roll for the improvement district.
(2) When a claim of lien is so filed and any assessment pertaining thereto is paid in full, the secretary
shall release the lien against any specific tract either by entering and signing a receipt of payment upon
the margin of the record thereof or by filing for record in the office of the county clerk and recorder a
separate release wherein payment of the assessment, principal, interest, and any penalty is recited.
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32- 11.5 -653. Duties imposed when assessments are levied
(1) Whenever the board has provided for any project under this article, has levied assessments
therefor, and has issued assessment bonds or assessment debentures or both such types of securities
for the financing of the same, then and in such event there shall be imposed upon the Fountain Creek
District the following additional duties:
(a) The district shall act as the agency for the collection of such assessments and in so doing shall act
as trustees for the benefit of such holders of assessment debentures or bonds.
(b) If the board creates more than one improvement district, the funds of each such district shall be kept
in a separate fund or account to be used for the payment of interest and principal of the assessment
securities pertaining to the improvement district.
(c) The Fountain Creek District shall prepare annually and shall make available for inspection in the
Fountain Creek District treasurer's office to each holder of assessment securities a statement of the
financial condition of the improvement district relating to such securities, which report shall include a
statement of all delinquencies existing at such time.
(d) Where there is a delinquency continuing for a period of one year in the payment of any installment .
of such assessment made for the project, the Fountain Creek District shall thereafter forthwith proceed
with the institution of proceedings to foreclose the assessment lien against the property or properties
wherein the delinquency exists, unless the county treasurer has instituted such proceedings, as
provided in this article.
(e) The holder of any assessment security issued under this article or any trustee therefor has the right
to institute such foreclosure proceedings in the name of the Fountain Creek District issuing such
security, if such a delinquency has continued for a period of one and one -half years and if the Fountain
Creek District has not theretofore instituted such foreclosure proceedings. The failure of any holder of
any assessment security or any trustee therefor so to proceed shall not be deemed a waiver of any
other right or privilege and shall not relieve the Fountain Creek District or any of its officers, agents, or
employees of any liability for failure to perform any duty.
32 -11.5 -654. Procedure to place omitted tracts on roll.
(1) Whenever by mistake or inadvertence or for any cause any tract otherwise subject to assessment
within any improvement district has been omitted from the assessment roll for any project, the board
may, upon its own motion or upon the application of any owner of any tract within such district charged
with the lien of an assessment for the project, assess the same in accordance with the special benefits
accruing to such omitted tract by reason of such project and in proportion to the assessments levied
upon other tracts in such district.
(2) In any such case the board shall first pass a resolution setting forth that certain tracts therein
described were omitted from such assessment, and notifying all persons who may desire to object
thereto to appear at a meeting of the board at a time specified in such resolution to present their
objection thereto and directing the engineer to report to the board at or prior to the date fixed for such
hearing the amount which should be borne by each such tract so omitted, which resolution shall be
published at least once by the secretary in a newspaper of general circulation in the improvement
district and shall be thereby mailed to the last known owner of each such tract.
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(3) At the conclusion of such hearing or any adjournment thereof, the board shall consider the matter as
though each such tract had been included upon the original roll and may confirm the same or any
portion thereof by resolution.
(4) Thereupon the assessment on such roll of each omitted tract shall be collected, the payment of
which shall be secured by an assessment lien; and a claim of lien therefor may be filed for record in the
office of the county clerk as other assessments, as provided in section 32- 11.5 -652.
32- 11.5 -655. Irregularities in contracts and assessments.
(1) Whenever the board makes any contract pertaining to any project provided in this article or makes
any assessment against any tract within any improvement district for any project authorized in this
article and, in making such contract or assessment, acts in good faith and without fraud, each such
contract and assessment shall be valid and enforceable as such, and the assessment shall be a lien
upon the tract upon which the same purports to be a lien.
(2) It shall be no objection to the validity of such contract, assessment, or lien that:
(a) The contract for such project was not awarded in the manner or at the time required hereby, or
otherwise;
(b) The contract was made by an unauthorized officer or person if the same has been confirmed by the
authorities of the Fountain Creek District; and
(c) The assessment is based upon an improper basis of benefits to the tract within the improvement
district, unless it appears that the Fountain Creek District authorities acted fraudulently or oppressively
in making such assessment.
32- 11.5 -656. Owner of interest may pay share.
The owner of any divided or undivided interest in any tract assessed under this article may pay his
share of any assessment, upon producing evidence of the extent of his interest satisfactory to the
county treasurer having the roll in charge.
32- 11.5 -657. Payment of assessments by joint owner.
(1) Whenever any assessment or installment thereof is paid or any delinquency therefor is redeemed or
any judgment therefor is paid by any joint owner of any tract assessed for any project, such joint owner
may, after demand and refusal, by an action brought in the Fountain Creek District court recover from
each of his co- owners the respective amounts of such payment which each such co -owner should bear
with interest thereon at ten percent per annum from the date of such payments, and costs of the action.
(2) The joint owner making such payment shall have a lien upon the undivided interest of his co- owners
in and to such property from date of such payment.
32 -11.5 -658. Assessment paid in error.
When, through error or inadvertence, any person pays any assessment or installment thereof upon the
tract of another, such payor may, after demand and refusal, by an action in the Fountain Creek District
court recover from the owner of such tract the amount so paid and costs of the action.
M
32- 11.5 -659. Description of property - notice to transferees.
(1) It is sufficient in any case to describe the tract as the same is platted or recorded or described in any
official record, although the same belongs to several persons.
(2) Any purchaser, lien holder, assignee, or transferee of any tract subject to assessment as provided in
this article, in any improvement district provided for in this article, after the first publication of the notice
of the provisional order to create such district, shall be held to notice thereof and of all proceedings with
reference thereto the same as the owners of such tract at the time of such notice or proceedings.
32 -11.5 -660. Assessment of public property
(1) When the Fountain Creek District, any public body, or the federal government (except the federal
government in the absence of its consent by congress to assessment) owns any tract or holds the title
to any tract not used as a street or other public right -of -way of the Fountain Creek District or other
public body, which if owned by a private person would be liable to assessment for benefits to pay for
any project mentioned in this article, an assessment shall be made against such tract as though such
tract were the property of a private person.
(2) The Fountain Creek District, the public body, or the federal government, in the case of such
consent, shall pay the amount of each such assessment by the levy of taxes or from other funds
available therefor.
32- 11.5 -661. Collecting assessments against public properties
(1) If any assessment against any tract of a private person operating a public utility or any tract of the
Fountain Creek District, any public body, or the federal government is not paid as provided by law, suit
may be brought in the proper district court to enforce the collection of the assessment, and the
judgment rendered against any such owner of the tract shall be enforced as are other judgments.
(2) No such tract owned thereby shall be sold under any such judgment, nor as the result of any
foreclosure of an assessment, nor otherwise.
32 -11.5 -662. Sewer districts and subdistricts. iThis and the following provisions related to sewer service
and sewer districts are subject to revision by the Governing Board based on input from the Parties to
the IGA and shall be consistent with the principles expounded in the IGA.1
The Fountain Creek District may establish and maintain separate or combined sewer systems, which
systems shall be divided into improvement district and subdistrict sewers for storm drainage, upon
initiation by the board.
32- 11.5 -663. Sewer acquisitions.
Sewers and other drainage facilities shall be established and constructed at such time and in such
locations, to such extent, with such dimensions and materials, and in accordance with such full details
and specifications as may be prescribed by the board. Whenever necessary, land rights -of -way for any
sewer or other drainage facility ordered by the board may be purchased, condemned, or otherwise
acquired on behalf of the improvement district and the cost charged to such district.
32- 11.5 -664. Classification of sewer districts.
(1) The board may order by resolution
(a) The acquisition of improvement district sewers, other drainage facilities, and appurtenances for
storm drainage, to be known as sewer districts; and
(b) The acquisition of relief sewers or other drainage facilities or intercepting sewers or other drainage
facilities and appurtenances for storm drainage for districts, to be known as relief districts or as
intercepting districts.
(2) Such sewers shall be constructed so as to connect within or without the improvement district with
some other sufficient sewer or disposal facilities or with some natural drainage. Such districts may be
composed of subdistricts to be specifically named or numbered in such resolution.
(3) District sewers, except as provided in this article, shall include all submains necessary to provide
outlets for all subdistrict laterals within the improvement district.
(4) Special district sewers shall include the necessary mains to provide outlets for all laterals within the
special sewer district.
32 -11.5 -665. Acquisition of subdistrict laterals.
The board may at the time of ordering the acquisition of district sewers or at any time thereafter order
the acquisition of subdistrict laterals in any such subdistrict so as to connect the same with the
submains or with the Fountain Creek District main sewer, the same to be approved by resolution as in
the case of district sewers.
32- 11.5 -666. Assessment of district sewers.
(1) The cost of district sewers may be assessed upon all the assessable property in the improvement
district, in proportion to the special benefits derived to each of the several tracts comprising the
assessable property and on a front -foot, area, zone, or other equitable basis. The cost of subdistrict
laterals shall be assessed in like manner upon all the assessable property in the subdistrict.
(2) The acquisition, however, of any submain may be omitted until such time as it may be required, in
which case subdistricts so left without submains shall not be assessed for any part of the cost of
submains acquired along, with, and as a part of the sewer district.
(3) Whenever submains so omitted are required and are constructed, they may be ordered as provided
for other sewers, and their cost shall be assessed to the subdistricts which are supplied with submains.
32- 11.5 -667. Issuance of refunding bonds
(1) Any assessment bonds issued under this article may be refunded pursuant to resolution to be
adopted by the board in the manner provided in this article for the issuance of other assessment bonds.
Refunding bonds so issued may be secured in such manner and may be made payable from such
sources as provided in the resolution authorizing their issuance.
(2) The security for the payment of the refunding bonds may be greater or lesser than the security for
the payment of the bonds refunded. Bonds pertaining to more than one improvement district may be
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refunded by the bonds of one series. Such refunding bonds may be payable from the unpaid
assessments of such improvement districts, and such payment may be additionally secured in
accordance with sections 32- 11.5 -628 and 32- 11.5 -629 and other provisions in this article supplemental
thereto.
(3) Refunding bonds so issued may be sold at public or at private sale or may be exchanged dollar for
dollar for the bonds to be refunded.
(4) If sold, the proceeds of sale may be escrowed for the payment of the bonds to be refunded in such
manner as may be provided in the resolution authorizing the refunding bonds and in sections 32 -1.5-
564 to 32- 11.5 -568 and section 32 -11.5 -570 for other refunding bonds of the Fountain Creek District
constituting special obligations.
32- 11.5 -668. Reassessments.
Whenever any assessment for any project under this article, in the opinion of the board, is invalid by
reason of any irregularity or informality in the proceedings, or if any court of competent jurisdiction
adjudges such assessments to be illegal, the board, whether the project has been effected or not or
whether any parts of the assessments have been paid or not, has power to cause a new assessment to
be made for the same purpose for which the former assessment was made.
32- 11.5 -669. Procedure for relevy.
(1) When an assessment is so determined to be invalid or illegal, the board shall by resolution order
and shall make a new assessment or reassessment upon the tracts which have been or will be
benefited by the project to which the invalid assessment pertains, to the extent of their proportionate
part of the expense thereof, and in case the cost exceeds the actual value of such project, the new
assessment or reassessment shall be for and shall be based upon the actual value of the same at the
time of the project's completion.
(2) To this end the engineer shall make a new assessment roll in an equitable manner with reference to
the benefits received, as near as may be in accordance with the law in force at the time such
reassessment is made.
(3) When the new roll has been confirmed and approved by the board as provided for the original
assessments, the reassessment shall be enforced and collected in the same manner that other
assessments for such project are enforced and collected, under the provisions in sections 32- 11.5 -635
to 32- 11.5 -661.
(4) No proceedings relative to making the cost of any project chargeable upon property benefited
thereby, required, and provided by the laws of the Fountain Creek District prior to the making of the
original assessment roll, shall be included or required within the purpose of sections 32- 11.5 -668 to 32-
11.5 -679.
32 -11.5 -670. Resolution for reassessment.
The board of the Fountain Creek District shall by resolution order and make a new assessment or
reassessment, as provided in section 32- 11.5 -669, upon the tracts which have been or will be benefited
by such project to the extent of their proportionate part of the cost of the project.
32- 11.5 -671. Assessment roll - certification.
ff.]
Upon the passage of a resolution, as provided in this article, the engineer shall make out an
assessment roll according to the provisions of the resolution and shall certify the same to the board, as
provided in section 32- 11.5 -636.
32 -11.5 -672. Notice of filing.
Upon receiving the assessment roll, the secretary shall give notice of an assessment hearing, as
provided in section 32- 11.5 -637.
32- 11.5 -673. Hearing.
At the time and place appointed for hearing, the board shall hold an assessment hearing and shall
otherwise proceed, as provided in section 32- 11.5 -638.
32- 11.5 -674. Levy of reassessment - cost and value.
(1) The fact that the contract has been let or that such project has been acquired or improved, or
acquired and improved, and otherwise completed in whole or in part shall not prevent such assessment
from being made, nor shall the omission, failure, or neglect of any officer to comply with the provisions
of the laws governing the Fountain Creek District as to petition, notice, resolution to acquire or improve,
or both acquire and improve, estimate, survey, diagram, manner of letting contract or execution of work,
or any other matter whatsoever connected with the project and the first assessment thereof operate to
invalidate or in any way to affect the making of the new assessment or reassessment, as provided for
by sections 32 -11.5 -668 to 32- 11.5 -679, charging the property benefited with the expense thereof,
except as otherwise provided in this article.
(2) Any such reassessment shall be levied by resolution, shall become final, and shall be subject to
appeal as provided in sections 32- 11.5 -639 and 32- 11.5 -640.
(3) Such reassessment shall be for an amount which shall not exceed the actual cost and value of the
project, together with any interest that has lawfully accrued thereon; and such amount shall be
equitably apportioned upon the tracts benefited thereby according to the provisions of the laws of the
Fountain Creek District.
(4) It is the true intent and meaning of sections 32- 11.5 -668 to 32- 11.5 -679 to make the cost and
expense of each local improvement project payable by the tracts benefited by such project by making a
reassessment therefor, notwithstanding that the proceedings of the board, engineer, or other body or
any officers thereof may be found irregular or defective, whether jurisdictional or otherwise.
32 -11.5 -675. Credits for prior assessment.
Whenever any sum or any part thereof levied upon any tract in the assessment so set aside has been
paid and not refunded, the payment so made shall be applied upon the reassessment of the tract on
account of which the same was paid.
32- 11.5 -676. Collection of assessments - new warrant or order.
(1) In all cases where the county treasurer or other district and county authorities are unable to enforce
the collection of any assessment by reason of irregularity or omission in any proceedings subsequent to
the confirmation of the assessment, the board is authorized to cause a new warrant or order to issue to
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the county treasurer or other proper officer for the collection of any assessment which by reason of
such irregularity or omission remains unpaid and not collected.
(2) The county treasurer or other proper officer shall proceed under such new warrant or order to
enforce and to collect the assessments therein specified in the same manner, as near as may be, as is
prescribed by the provisions of sections 32- 11.5 -642 to 32- 11.5 -651, for the enforcement and the
collection of assessments, after the same have been confirmed and reassessed, as provided in
sections 32- 11.5 -666 to 32- 11.5 -679.
(3) As often as any failure occurs by reason of such irregularities or omissions, a new warrant or order
may issue, and new proceedings shall be had in like manner until such assessment is fully collected as
to each tract charged therewith.
32- 11.5 -677. Appeal to district court
Any person who has filed objections to such new assessment or reassessment, as provided in this
article, has the right to appeal to the Fountain Creek District court of this state in and for the county and
district in which the tract assessed is situated, as provided and subject to the limitations in section 32-
11.5 -640.
32- 11.5 -678. Procedure exclusive
The rights and remedies given in this article to the taxpayer and the property owner for objecting to,
contesting, or appealing from the amount, correctness, regularity, or validity of such new assessment or
reassessment are declared to be exclusive of all other rights, remedies, suits, or actions either at law or
in equity which might otherwise be available, to afford him a sufficient day in court for the redressing of
all rights and grievances that he may have in connection with such new assessment or reassessment.
32- 11.5 -679. Application of reassessment funds.
Whenever the Fountain Creek District issues assessment debentures or assessment bonds to obtain
funds to pay for any project which has been actually acquired or improved, or both acquired and
improved, and the assessments levied therefor fail to be valid or sufficient in whole or in part and a new
assessment or reassessment has been levied and confirmed, as provided in sections 32 -11.5 -668 to
32 -11.5 -679, then the Fountain Creek District is directed to apply all moneys derived from such
assessments, new assessments, and reassessments to the payment of such assessment securities
according to their tenor. The securities issued for any project actually acquired or improved, or both
acquired and improved, shall be valid and binding obligations of the Fountain Creek District, payable
out of such assessments, new assessments, and reassessments, which shall be levied and relevied
until payment in full has been made, as provided in section 32- 11.5 -624.
PART VII —ANNEXATION
32- 11.5 -701. Annexation of Lands to District.
(1) The territorial limits of the Fountain Creek District may be enlarged by the annexation of additional
real property thereto in the following ways:
(a) By petition and consent of the fee owner pursuant to sections 32- 11.5 -702 and 32 -11.5 -706;
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(b) By petition of the taxpaying electors, and approval pursuant to sections 32- 11.5 -703, 32- 11.5 -704,
and 32- 11.5 -706;
(c) By action initiated by the Fountain Creek District pursuant to sections 32- 11.5 -705 and 32- 11.5 -706,
but only upon consent of the applicable represented governing entity
(d) By petition by the appropriate represented governing entity.
32- 11.5 -702. Petition of Fee Owners.
(1) The fee owner of any real property contiguous to the territorial limits of the Fountain Creek District
and capable of being served with facilities of the Fountain Creek District may file with the board a
petition in writing praying that such property be included in the Fountain Creek District.
(2) The petition shall set forth an accurate legal description of the property owned by the petitioners and
shall state that assent to the annexation of such property in the Fountain Creek District is given by the
signers thereto, constituting all the fee owners of such property.
(3) The petition must be acknowledged in the same manner required for conveyance of land.
(4) There shall be no withdrawal from a petition after consideration by the board, nor shall further
objections be filed except in case of fraud or misrepresentation.
(5) The board shall hear the petition at an open meeting after the publication of a notice of the filing of
such petition, and of the place, time, and date of such meeting, and of the names and addresses of the
petitioners, in a newspaper of general circulation in the county or counties in which the real property
proposed to be annexed is located.
(6) The board shall determine if such annexation is feasible and in the best interests of the Fountain
Creek District.
(7) If the board so determines, the board shall grant the petition.
(8) If the petition is granted as to all or any of the real property therein described, the board shall by
resolution make an order to that effect.
32- 11.5 -703. Petition of Taxpaying Electors
(1) Not less than ten percent or one hundred, whichever number is smaller, of the taxpaying electors of
any real property which is contiguous to the Fountain Creek District and contains twenty -five thousand
or more square feet of land may file a petition with the board in writing praying that such area be
annexed to the Fountain Creek District; but no single tract or parcel or property, containing ten acres or
more, may be included in any district without the consent of the owner thereof.
(2) The petition shall describe the area to be annexed and shall be acknowledged in the same manner
as conveyances of land are required to be acknowledged.
(3) The secretary of the board shall cause notice of the filing of the petition to be given by publication in
a newspaper of general circulation in the county or counties in which the property is situated.
(4) The notice shall state
(a) The fact that such a petition has been filed;
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(b) The names of the petitioners;
(c) The description of the area desired to be included;
(d) The date and place of a hearing on the proposed annexation; and
(e) A statement that all persons interested shall appear at the time and place stated in the notice and
show cause in writing why the petition should not be granted.
(5) There shall be no withdrawal from a petition after consideration by the board, nor shall further
objections be filed except in case of fraud or misrepresentation.
(6) The board, at the time and place mentioned in the notice, shall proceed to hear the petition and all
written objections thereto.
(7) The board shall determine if such annexation is feasible and in the best interests of the Fountain
Creek District.
32- 11.5 -704. Annexation Election.
(1) If the petition is provisionally granted, the board by resolution shall:
(a) Make an order to that effect;
(b) Direct that the question of inclusion of the area within the Fountain Creek District be submitted at an
election within the area to be included or annexed; and
(c) Designate the secretary of the board as the designated election official to give notice and conduct
the election according to the provisions of articles 1 to 13 of title 1, C.R.S.
(2) The annexation election shall be held within the area sought to be annexed, and only registered
electors of the Fountain Creek District shall vote on the question.
(3) If a majority of the votes cast on the question at the election favor inclusion, the board shall by
resolution enter an order making the real property a part of the Fountain Creek District.
32 -11.5 -705. Annexation Initiated by the Board.
(1) At any time as a condition to an annexation initiated by the board, it may determine by resolution
that real property proposed for annexation:
(a) Is contiguous to the territorial limits of the Fountain Creek District;
(b) Contains six hundred forty or more acres of land;
(c) Has become urbanized by having a population of at least one thousand persons per square mile
and having at least five hundred dwelling units per square mile; and
(d) Is capable of being served with the facilities of the Fountain Creek District.
(2) Such a resolution shall provisionally order the annexation of such area.
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(3) The secretary of the board shall cause notice of the adoption of the provisional resolution to be
given by publication in a newspaper of general circulation in the county or counties in which the
property is situated.
(4) The notice shall state:
(a) The fact that such a provisional resolution has been adopted;
(b) The description of the area desired to be included;
(c) The date and place of a hearing on the proposed annexation; and
(d) A statement that all persons interested shall appear at the time and place stated in the notice and
show cause in writing why the annexation should not be made final.
(5) Prior to hearing, the board shall obtain in writing consent from the applicable represented governing
entity to annex said property.
(6) The board, at the time and place mentioned in the notice, shall proceed to hear all written objections
to the proposed annexation and all other matters in the premises.
(7) The board shall determine by resolution if such annexation is feasible and in the best interest of the
Fountain Creek District.
(8) If the board so determines, the secretary shall furnish by mail to the director of the division of local
government within the department of local affairs, under the seal of the Fountain Creek District, a copy
of the provisional resolution and of the feasibility resolution and shall request the director to approve the
annexation.
(9) If the director approves the annexation in writing, the board, upon the receipt of such approval, may
by resolution enter its order making the real property a part of the Fountain Creek District.
32- 11.5 -706. General Annexation Provisions.
(1) The failure of any person in the Fountain Creek District or in the area to be annexed to file a written
objection to any proposed annexation in a hearing of the board thereon shall be taken as an assent on
such person's part to the inclusion in the Fountain Creek District of the area described in the notice of
the hearing for annexation.
(2) The action of the board in its determination that any proposed annexation which it orders is feasible
and to the best interests of the Fountain Creek District shall be final, conclusive, and not subject to
review.
(3) Whenever the board by resolution enters an order annexing any real property to the Fountain Creek
District, the secretary of the board shall forthwith file the resolution:
(a) With the secretary of state;
(b) With the attorney general of the state;
(c) With the division of local government; and
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(d) With each county clerk and recorder, county assessor, and county treasurer of the county or
counties in which the annexed real property is located.
(4) If an order is so entered annexing real property to the Fountain Creek District, such order shall be
deemed final. The entry of such order shall finally and conclusively establish the annexation of the real
property to the Fountain Creek District against all persons except the state, in a proceeding in the
nature of quo warranto, commenced by the attorney general within thirty days after the resolution
entering such order is filed with him and not otherwise. Such an annexation shall not be directly or
collaterally questioned in any suit, action, or proceeding except as expressly authorized in this
subsection (4).
(5) After the date of the annexation of such real property to the Fountain Creek District by the adoption
of such resolution, the annexed property shall be liable for its proportionate share of existing bonded
indebtedness of the Fountain Creek District; but such real property shall not be liable for any taxes or
service charges levied or assessed prior to the inclusion of such annexed property in the Fountain
Creek District, nor shall the entry of the property into the Fountain Creek District be made subject to or
contingent upon the payment or assumption of any penalty, toll, or charge, other than the taxes and
service charges which are uniformly made, assessed, or levied for the entire district except as
otherwise expressly provided in this article.
(6) The Fountain Creek District acting by and through the board and the owner of the real property
sought to be annexed to the Fountain Creek District may enter into an agreement with respect to the
terms and conditions on which such property may be annexed.
PART VIII — MISCELLANEOUS
32- 11.5 -801. Budgets, Accounts, and Audits
The district shall adopt a budget for each fiscal year, shall maintain accounts, and shall cause an
annual audit to be made pertaining to the financial affairs of the Fountain Creek District as respectively
provided in the local government budget law of Colorado, the Colorado local government uniform
accounting law, and the Colorado local government audit law, as from time to time amended, except as
otherwise provided in this article.
32 -11.5 -802. Effect of Extraterritorial Funds
All of the powers, privileges, immunities, rights, exemptions from laws, ordinances, and rules, all
pension, relief, disability, workers' compensation, and other benefits which apply to the activity of
officers, agents, or employees of the Fountain Creek District or any such public body when performing
their respective functions within the territorial limits of the respective public agencies shall apply to them
to the same degree and extent while engaged in the performance of any of their extraterritorial
functions and duties under this article.
32- 11.5 -803. Early Hearings.
(1) All cases in which there may arise a question of validity of any power granted in this article or of any
other provision of this article shall be advanced as a matter of immediate public interest and concern
and shall be heard at the earliest practicable moment.
(2) The courts shall be open at all times for the purposes of this article.
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32 -11.5 -804. Decision of the Board Final
The action and decision of the board proceeding under this article as to all matters passed upon by the
board in relation to any action, matter, or thing provided in this article shall be final and conclusive in the
absence of fraud.
32- 11.5 -805. Correction of Faulty Notice.
In any case where a notice is provided for in this article, if the board or the court finds for any reason
that due notice was not given, the board or the court shall not thereby lose jurisdiction, and the
proceeding in question shall not thereby be void or abated; but the board or court shall order due notice
to be given and shall continue any hearing until such time as notice is properly given, and thereupon
shall proceed as though notice has been properly given in the first instance.
32 -11.5 -806. Correction of Errors in Proceedings.
It is the duty of the board, and it shall have the power by any subsequent proceedings, to correct any
mistakes, errors, or irregularities in any of the proceedings mentioned in this article.
32 -11.5 -807. Retention of Jurisdiction.
(1) The board may continue the hearing upon any petition or resolution or remonstrance provided for in
this article and shall retain jurisdiction until the same is fully disposed of.
(2) The board shall not lose jurisdiction over the acquiring or improving, or acquiring and improving, of
any project, the levy of any taxes, assessments, or service charges, or the issuance of any securities or
any other matter provided for in this article by reason of any adjournment or any delays, errors,
mistakes, or irregularities on the part of any director or any district officer or any other person.
32- 11.5 -808. Conclusiveness of Board's Decision.
The determination of the board that the limitations imposed in this article upon the issuance of bonds or
upon the issuance of other securities under this article, both general obligations and special obligations,
have been met shall be conclusive in the absence of fraud or arbitrary and gross abuse of discretion,
regardless of whether the authorizing resolution or the securities thereby authorized contain a recital as
authorized by section 32- 11.5 -507.
32- 11.5 -809. Investments by Public Bodies.
It is legal for any public entity, as defined in section 24 -75 -601 (1), C.R.S., to invest any permanent
state funds or other funds available for investment in any of the bonds or other securities authorized to
be issued pursuant to the provisions of this article if the securities satisfy the investment requirements
established in part 6 of article 75 of title 24, C.R.S.
32- 11.5 -810. Investments by Other Persons.
(1) It is legal for any bank, trust company, banker, savings bank or institution, any building and loan
association, savings and loan association, investment company, and any other person (other than a
public body) carrying on a banking or investment business, any insurance company, insurance
association, or any other person (other than a public body) carrying on an insurance business, and any
executor, administrator, curator, trustee, or any other fiduciary to invest funds or moneys in their
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custody in any of the bonds or other securities issued in accordance with the provisions of this article.
(2) Nothing contained in this section with regard to legal investments shall be construed as relieving
any representative of any corporation or other person of any duty of exercising reasonable care in
selecting securities.
(3) It is legal for any securities issued under this article which are general obligation bonds or other
general obligation securities or are special assessment bonds or other special assessment securities,
the payment of which is additionally secured as required by section 32- 11.5 -628 and as permitted by
section 32- 11.5 -629, to be accepted and held as security for the prompt payment of any public deposits
of the state, any agency, instrumentality, or corporation thereof, or any county, city, town, school
district, or other political subdivision thereof, including without limitation any quasi - municipal district or
any authority.
32- 11.5 -811. Delegated Powers.
The officers of the Fountain Creek District and of each county in which the Fountain Creek District is
located are authorized to take all action necessary or appropriate to effectuate the provisions of this
article.
32- 11.5 -812. Confirmation of Contract Proceedings
(1) In its discretion, the board may file a petition at any time in the Fountain Creek District court in and
for any county in which the Fountain Creek District is located, praying for a judicial examination and
determination of any power conferred, or of any securities issued or merely authorized to be issued, or
of any taxes, assessments, or service charges levied or otherwise made or contracted to be levied or
otherwise made, or of any other act, proceeding, or contract of the Fountain Creek District, whether or
not such act, proceeding, or contract has been taken or executed, including proposed contracts for any
project, proposed securities of the Fountain Creek District to defray wholly or in part the cost of the
project, and the proposed acquisition, improvement, equipment, maintenance, operation, or disposal of
any property pertaining thereto (or any combination thereof).
(2) Such petition shall:
(a) Set forth the facts whereon the validity of such power, securities, taxes, assessments, charges, act,
proceeding, or contract is founded; and
(b) Be verified by the chairman of the board
(3) Such action shall be in the nature of a proceeding in rem, and jurisdiction of all parties interested
may be had by publication and posting, as provided in this article.
(4) Notice of the filing of the petition shall be given by the clerk of the court, under the seal thereof,
stating in brief outline the contents of the petition and showing where a full copy of any proceeding or
contract therein mentioned may be examined.
(5) The notice shall be served
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(a) By publication at least once a week for five consecutive weeks by five weekly insertions, in at least
one newspaper of general circulation published in El Paso County and one newspaper of general
circulation in Pueblo County; and
(b) By posting in the office of the Fountain Creek District at least thirty days prior to the date fixed in the
notice for the hearing on the petition.
(6) Jurisdiction shall be complete after such publication and posting.
(7) Any owner of property in the Fountain Creek District or any other person interested in the
proceeding or contract or proposed proceeding or proposed contract or in the premises may appear
and move to dismiss or answer the petition at any time prior to the date fixed for the hearing or within
such further time as may be allowed by the court. The petition shall be taken as confessed by all
persons who fail so to appear.
(8) The petition and notice shall be sufficient to give the court jurisdiction, and upon hearing the court
shall examine into and determine all matters and things affecting the question submitted, shall make
such findings with reference thereto, and shall render such judgment and decree thereon as the case
warrants.
(9) Costs may be divided or apportioned among any contesting parties in the discretion of the trial
court.
(10) Review of the judgment of the court may be had as in other similar cases, except that such review
must be applied for within thirty days after the time of the rendition of such judgment or within such
additional time as may be allowed by the court within the thirty days.
(11) The Colorado rules of civil procedure shall govern in matters of pleading and practice where not
otherwise specified in this article.
(12) The court shall disregard any error, irregularity, or omission which does not affect the substantial
rights of the parties.
(13) All cases in which there may arise a question of the validity of any matter provided for under this
section shall be advanced as a matter of immediate public interest and concern and shall be heard at
the earliest practicable moment.
32 -11.5 -813. Tax Exemptions.
(1) The effectuation of the powers authorized in this article are in all respects for the benefit of the
people of the state, for the improvement of their health and living conditions, and for the increase of
their commerce and prosperity.
(2) The Fountain Creek District shall not be required to pay any taxes upon any property pertaining to
the facilities of the Fountain Creek District or any project authorized in this article and acquired within
the state, nor the Fountain Creek District's interest in any such property.
32- 11.5 -814. Freedom from Judicial Process.
(1) Execution or other judicial process shall not issue against any property of the Fountain Creek
District authorized in this article, nor shall any judgment against the Fountain Creek District be a charge
or lien upon its property.
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(2) Subsection (1) of this section does not apply to or limit the right of the holder or owner of any district
securities, his trustee, or any assignee of all or part of this interest, the federal government when it is a
party to any contract with the Fountain Creek District, and any other obligee under this article to
foreclose, otherwise to enforce, and to pursue any remedies for the enforcement of any pledge or lien
given by the Fountain Creek District on the proceeds of any taxes, assessments, pledged revenues, or
any other moneys of the Fountain Creek District or any combination thereof.
32- 11.5 -815. Misdemeanors.
Any person who wrongfully or purposely fills up, cuts, damages, injures, or destroys or in any manner
impairs the usefulness of the facilities of the Fountain Creek District or any property pertaining to any
project, or any part thereof, or any other work, structure, improvement, equipment, or other property
acquired under the provisions of this article, or wrongfully and maliciously interferes with any officer,
agent, or employee of the Fountain Creek': District in the proper discharge of his duties, is guilty of a
misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than three hundred
dollars, or by imprisonment in the county jail for not more than ninety days, or by both such fine and
imprisonment.
32- 11.5 -816. Civil Rights.
If the Fountain Creek District is damaged by any act referred to in section 32- 11.5 -815, the Fountain
Creek District may also bring a civil action for damages sustained by any such act, and in such
proceeding the prevailing party shall also be entitled to reasonable attorneys' fees and costs of court.
32- 11.5 -817. Exemption of District.
A district formed under this article shall not be considered a political subdivision for the purposes of
section 8 -3 -104 (12), C.R.S.
W .
Exhibit B
Technical Advisory Committee (TAC)
Membership
Membership on the TAC should consist of the following:
• Six technical representatives, one from each of the cities and counties and the Lower Arkansas
that are represented on the Governing Board. Each representative will be selected by the
member entity that they represent.
• El Paso County, City of Colorado Springs, City of Fountain.
• Pueblo County, City of Pueblo, Lower Arkansas Reps selected by Pueblo County.
• Technical experts who represent specific subject areas. These subject area experts will be
recommendations by the TAC to the Governing Board, which will have final approval of all
appointments. Technical expert categories to be drawn from are:
• Agriculture
• Recreation/Parks
• Open Space
• Water Quality
• Ecosystem and Wetland Restoration/Preservation
• Municipal Water
• Watershed Perspective
• Federal Agencies/Military Installations
• Others as determined by the Board
Purpose of the TAC
Near Term
• Integrate and prioritize recommendations of the Fountain Creek Vision Task Force, Army Corps
of Engineers Watershed Study, Fountain Creek Corridor Master Plan and other ongoing
watershed activities.
• Be the technical advocate for watershed health (e.g. supporting non - structural solutions to
watershed concerns).
Seek funding such as grants for watershed projects.
Long Term (once Watershed District staff is hired, the TAC will provide information and make
recommendations regarding watershed health)
• Give input to District staff and evaluate its recommendations
e Make recommendations and review Spending Plan (should include capital projects and operation
and maintenance)
Other Responsibilities
Provide a liaison to the Citizens Advisory Group
Participate in Public Outreach and Education programs as directed by the Governing Board
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Exhibit C
Citizens Advisory Group (CAG)
Membership
Membership on the CAG at a minimum but not to exceed 15 members:
• Property owners on the creek south of Fountain
• City of Pueblo residents (East side)
• Arkansas Basin Ranchers/Farmers /Agricultural Water interests
• Land conservation nonprofits (Colorado Open Lands, Palmer Land Trust, etc.)
• Recreation interests (State Parks, Trails and Open Space Coalition)
• Environmental Groups (Sierra Club, Trout Unlimited, Clean Water Action)
• Potential funding partners (Fountain Creek Foundation, El Pomar)
• Citizen at Large
• Citizen at Large
• Business stakeholders
Purpose of the CAG
Establish and maintain strong communication with interest groups, communities and
stakeholders by serving as a public sounding board for the Governing Board, providing an
opportunity for both the cooperative exchange of information, emerging issues, new ideas
and approaches, dissemination of watershed information, as well as early resolution of
problems.
Assist in the creation, review and prioritization of management strategies and projects
Participation on the annual audit committee. (should include capital projects and operation
and maintenance)
Establishment of CA
• Governing Board CAG: The CAG will be appointed by the El Paso and Pueblo County
representatives to the Governing Board from recommendations made from a nominating
committee of the Fountain Creek Vision Task Force Consensus Committee and will serve a
term(s) as defined in the Governing Board's Bylaws.
• Watershed District CAG: Once the Watershed District is formed, it will accept applications
to fill the seats on the District CAG with the preference that the District retain a minimum of
5 members from the Governing Board CAG for one term for continuity. After establishment
of the District CAG, that District CAG will form a nominating committee to review
applications for vacated seats and refer those recommendations to the District for
appointment. Either the District or committee may seek new CAG stakeholder seats up to the
15 member limit; however, only the District has the authority to appoint. Terms will be
established in the District's Bylaws.
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CAG member to serve on Governing Board and Watershed District Board
The same nominating committee will recommend individuals to the El Paso County and Pueblo
County representatives to the Governing Board for appointment as the first CAG member on the
Governing Board. The nominees will come from participants in the Vision Task Force Process.
That person will serve a term(s) as defined in the Governing Board's Bylaws. Once the
Watershed District CAG is established, it will then recommend a member(s) of the CAG to be
appointed by the El Paso County and Pueblo County representatives to the District Board as
vacancies occur. In both the Governing Board CAG and Watershed District CAG, the CAG
member chosen to sit on the respective Board will also be considered a member of the CAG.
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Figure 2
The Fountain Creek Watershed
(as described in paragraph 5.2)
Watershed Boundary Dataset, Hydraulic Unit Code # 11020003, Fountain Creek Sub -basin of the
Arkansas River, Colorado, available URL: htti): / /datagateway.nres.usda.gov.
State c
i
M
F
w
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