(A) As used in this Formation Resolution, the following terms shall have the meanings specified, unless the context clearly requires otherwise (such meanings to be equally applicable to both the singular and the plural forms of the terms defined):
(1) “ABCWUA” means the Albuquerque Bernalillo County Water Utility Authority.
(2) “Act” means collectively NMSA 1978, §§ 5-11-1 to -27 (2001, as amended), the home rule powers and all enactments of the City Council, including this Formation Resolution.
(3) “City” means the City of Albuquerque, New Mexico.
(4) “Clerk” means the City Clerk.
(5) “Council” means the City Council of the City.
(6) “Development Agreement” means the development agreement dated on or about May 21, 2012 by and between the City, the District, and the Petitioner, in accordance with § 4(I) of the PID Ordinance, in the form attached as Exhibit 10 to the Petition, which Development Agreement shall be joined and ratified by the District.
(7) “District” or “PID” means The Boulders Public Improvement District.
(8) “District Bonds” means one or more series of bonds proposed to be issued by the District pursuant to the Act.
(9) “District Boundary Map” means the map attached as Exhibit A to the General Plan.
(10) "District Special Levy" or "District Special Levies" means the special levy or special levies to be imposed on the Land pursuant to NMSA 1978, § 5-11-20 (2001).
(11) “Feasibility Study” means the study of the estimated costs and financing methods of the Infrastructure Improvements submitted by the Petitioner in connection with the Petition, in the form attached as Exhibit 5 to the Petition.
(12) “Formation Documents” means the Petition, the General Plan, the Development Agreement, and such other documents as are required by the Act and the PID Ordinance to be submitted by an applicant in connection with an application for the formation, implementation and governance of the District.
(13) “Formation Resolution” means this resolution adopted by the City in connection with its approval of the formation of the District, as supplemented or amended from time to time.
(14) “General Plan” means the General Plan submitted by the Petitioner in the form attached as Exhibit 3 to the Petition, which is on file with the Clerk and includes a map depicting the boundaries of the district and the real property proposed to be included in the district; a general description of anticipated improvements and their locations; and general cost estimates, proposed financing methods and anticipated special levies.
(15) “Infrastructure Improvements” means the PID Funded Infrastructure Improvements and such other improvements, which are collectively all of the improvements on the Land, whether funded directly by the Petitioner or with the proceeds of the District Bonds, described and in the approximate locations shown on Exhibit B to the Feasibility Study.
(16) “Land” means the real property described in the District Boundary Map.
(17) “MAI Appraisal” means the valuation of the Land as of March 28, 2012, as prepared by David Pearson, MAI.
(18) “Petition” means the Petition and Application filed with the City for the formation of The Boulders Public Improvement District and all documentation incorporated by reference in the Petition, submitted to the City pursuant to the Act and the PID Ordinance.
(19) “Petitioner” means Flash Resources, LLC, a Nevada limited liability company.
(20) “PID Funded Infrastructure Improvements” means the portion of the Infrastructure Improvements financed with the proceeds of the District Bonds, as identified in Table 1 in Section IV of the General Plan.
(21) “PID Ordinance” means City Ordinance Enactment No. 0-2003-12, Council Bill No. F/S 0-03-84.
(22) “Rate and Method of Special Levy Apportionment” means the rate, method of apportionment and manner of collection of the District Special Levy submitted by the Petitioner in the form attached as Exhibit C to the General Plan.
(23) “State” means the State of New Mexico.
(B) Construction of Formation Resolution. Except as otherwise expressly provided in this Formation Resolution, or unless the context otherwise requires:
(1) The singular includes the plural and the plural includes the singular.
(2) All accounting terms not otherwise defined in this Formation Resolution have the meanings assigned to them in accordance with generally accepted accounting principles in the United States.
(3) All references to Sections shall refer to Sections of this Formation Resolution, unless otherwise stated.
(4) Words importing any gender include the other gender.
(5) “Herein,” “hereby,” “hereunder,” “hereof,” “hereinbefore" and “hereafter” refer to this Formation Resolution and not solely to the particular portion of this Formation Resolution in which such word is used.
(6) All times will be local time in the City unless otherwise designated in this Formation Resolution.
(C) Findings. The City hereby declares that it has considered the Petition and all other relevant information and data, and hereby makes the following findings:
(1) The Petitioner, together with those parties consenting to the Petition, own 100% of the Land and no resident qualified electors or any other persons are located on the Land.
(2) As planned and proposed by the Petitioner, the Infrastructure Improvements have been or will be constructed to City specifications and will be subject to inspection, approval and acceptance by the City prior to dedication to the City, as provided in the Development Agreement.
(3) The District Bonds will be the sole obligations of the District, and will not be backed by the credit, general funds or resources of the City in any manner. Owners of the District Bonds will have no right to require the City or the District to impose ad valorem property taxes to pay District Bonds.
(4) The District will serve the interests, convenience and necessity of Petitioner, future owners of the Land and the citizens of the City:
(a) The cost of constructing the PID Funded Infrastructure Improvements will be allocated to the owners of Land within the District who will utilize the PID Funded Infrastructure Improvements, in a fair and equitable manner, and will not be passed on to the citizens of the City, other than the Petitioner and the other owners of the Land, or the City itself; and
(b) The City will receive the benefit of the Infrastructure Improvements through dedication of the Infrastructure Improvements not otherwise dedicated to the ABCWUA.
(5) The financing of the PID Funded Infrastructure Improvements is feasible and, based upon the Feasibility Study, will not impose an undue burden on the future owners of the Land or served by the PID Funded Infrastructure Improvements.
(6) The financing of the PID Funded Infrastructure Improvements will enable the District to construct or acquire those improvements in a cost-effective manner.
(7) The District is planned and will be implemented in a manner which provides for the expenses to be paid by the Petitioner and the District, as applicable.
(8) As planned, the Infrastructure Improvements are consistent with the City's development goals, growth management policies, and conservation policies.
(9) The formation of the District and the issuance of District Bonds, subject to the requirements and limitations specified in this Formation Resolution, are consistent with the requirements of the PID Ordinance.
(D) Approval of the Formation Documents; Formation of District; Approval of District Foreclosure Procedures for Delinquent Special Levies.
(1) The Boulders Public Improvement District is hereby ordered approved and formed to carry out the purposes set forth in, and according to the provisions of, this Formation Resolution.
(2) The Petition is hereby accepted and approved.
(3) The General Plan is hereby accepted and approved. The District shall include the Land, which is the real property described in the General Plan's District Boundary Map and more particularly identified in the legal descriptions attached as Exhibit 2 to the Petition.
(4) The Development Agreement is hereby accepted and approved, and shall be an agreement or condition pertaining to the District, as contemplated by §4(D) of the PID Ordinance, so that any existing agreements with the Petitioner or other developers and landowners regarding the provision of Infrastructure Improvements proposed to be furnished to the City shall be deemed amended to reflect the terms of the Development Agreement.
(5) The Rate and Method of Special Levy Apportionment, establishing the apportionment and manner of collection of District Special Levy in sufficient detail to enable each owner of all or a portion of the Land or resident within the District to estimate the maximum amount of the proposed District Special Levy, is hereby accepted and approved.
(6) The Notice of District Special Levy substantially in the form attached as Exhibit 8 to the Petition is hereby approved.
(7) The District shall have the powers necessary and convenient to finance and acquire the PID Funded Infrastructure Improvements as provided in the General Plan, Feasibility Study, Rate and Method of Special Levy Apportionment and Development Agreement, as those documents may be amended or modified with the approval of the City. The District and the City shall be bound by the terms thereof.
(8) The purpose of the District shall be to provide financing of the PID Funded Infrastructure Improvements set forth in the Petition.
(9) The District Bonds shall not exceed the maximum principal amount set forth in the Petition and shall be within the value to lien ratio described in the Petition, except as otherwise approved in a supplemental resolution by the District’s governing body and the City Council.
(10) The District Special Levies to be imposed by the District shall not exceed the amounts set forth in the Petition, subject to adjustment consistent with the terms of the Act and the Rate and Method of Special Levy Apportionment.
(11) The District shall be self-supporting, as provided in § 1(F) of the PID Ordinance.
(12) The District shall comply with existing City policies for development, growth management and conservation, as provided in §§ 1(A) and 1(I) of the PID Ordinance.
(13) The PID financing proposed in the Petition and other Formation Documents meet the applicable requirements of §§ 5 and 6 of the PID Ordinance.
(14) The officers, agents and employees of the City are hereby authorized and empowered to do all acts and things and to execute and deliver all documents relating to or requested by the District to carry out and comply with the provisions of the Formation Documents.
(15) The District’s governing body shall hold a public meeting within 45 days following the date of adoption of this Formation Resolution. At that meeting, the District’s governing body shall adopt an open meeting policy and by-laws for the District, approve and execute the Development Agreement, and shall take such other action toward or in connection with the issuance of the District Bonds, as authorized by this Formation Resolution.
(16) Pursuant to the authority granted in §§ 5-11-20(G) and 5-11-23(F) of the Act, the District shall establish procedures for foreclosure of delinquent District Special Levies and for redemption of foreclosed property, which procedures shall be substantially similar to the foreclosure and redemption procedures applicable to Municipal Improvement Districts set forth in NMSA 1978, §§ 3-33-28 to -30 (1965, as amended), and as set forth for the District in the Development Agreement approved by this Formation Resolution.
(E) Authorization of District Bonds. The District may issue District Bonds pursuant to a resolution of the District’s governing body authorizing issuance of one or more series of District Bonds in an estimated maximum aggregate principal amount of $3,902,000 for the purpose of financing the PID Funded Infrastructure Improvements subject to the requirements set forth in this Formation Resolution (the “Bond Resolution”).
(1) The Bond Resolution shall be approved by the City's Debt Committee prior to its enactment by the District and, as part of the review and approval process, the City's Debt Committee shall determine that the Petitioner is in compliance with its outstanding agreements with the City, including all subdivision improvement agreements.
(2) The Bond Resolution shall include, at minimum, the following provisions for the protection of owners of the Bonds:
(a) The Bond Resolution shall provide for the establishment of a debt service reserve fund in an amount, on the date of issuance of the District Bonds, equal to the lesser of (a) the maximum annual debt service requirements on all outstanding District Bonds; (b) 125% of the average annual debt service requirements on the District Bonds; or (c) 10% of the aggregate principal amount of the District Bonds.
(b) The Bond Resolution shall include provisions for the public offering or private placement of District Bonds in accordance with § 5(E)(5) of the PID Ordinance; and in accordance with the PID Ordinance, the City's Debt Committee has determined, based upon recommendations made by underwriters and financial consultants to the City, that in lieu of a contribution agreement, the District Bonds shall be subject to the following diversity of ownership requirements and limitations:
1. The District Special Levies assessed on the Land, owned by parties other than the Petitioner or other related interests, shall be in amounts equal to or greater than 110% of the maximum annual debt service requirements of all District Bonds outstanding and proposed to be issued; and
2. The aggregate principal amount of the District Bonds shall constitute no more than 25% of the total value of the Land, owned by parties other than the Petitioner or other related interests, following the completion of construction of the PID Funded Infrastructure Improvements.
(c) The Bond Resolution shall provide that the District Bonds shall be sold pursuant to a limited public offering and issued in minimum denominations of at least $25,000.
(d) The final maturity date for the District Bonds shall not be more than 30 years after the date of issuance.
(e) The Bond Resolution shall include provisions for appointment of a trustee pursuant to an indenture of trust or other similar instrument.
(f) The Bond Resolution shall provide that the trustee may exercise the rights and remedies of the District for the protection of bondholders, including, without limitation, the following:
1. the trustee's collection of District Special Levies;
2. the trustee's foreclosure of delinquent District Special Levies; and
3. the trustee's appointment of a receiver or other agent to complete the construction of the Infrastructure Improvements in the event of a default in the payment of debt service on the District Bonds, which default cannot be cured by either (I) drawing on the debt service reserve fund established for the District Bonds, (II) through payment pursuant to a letter of credit or other guaranty that may be provided by the Petitioner, if required, or (III) through the Petitioner’s direct payment of the amount necessary to pay the debt service on the District Bonds then due, which appointment may be made irrespective of whether foreclosure remedies are exercised.
(3) Prior to the issuance of District Bonds, the District's Bond Resolution shall be presented to the City Council for approval as being consistent with the provisions of Section 5 of this Resolution.
(F) District Governance.
(1) The District's governing body (the “Governing Body”) shall be composed of:
(a) one of whom shall be a licensed engineer employed in the Department of Municipal Development, which member shall initially be Rhonda Methvin;
(b) one of whom shall be a certified public accountant employed in the Department of Finance and Administration, which member shall initially be Pamela Berry;
(c) one of whom shall be a employed in the City Planning Department, which member shall initially be Russell Brito; and
(d) two members nominated by the Petitioner, and consented to by the City Council, which members shall initially be Pierre Amestoy and Christine Amestoy;
(2) Pierre Amestoy, Pamela Berry, and Russell Brito shall serve 6-year terms.
(3) Christine Amestoy and Rhonda Methvin shall serve 4-year terms.
(4) Pursuant to § 5-11-6 of the Act, Pierre Amestoy is appointed to be the clerk of the District and Christine Amestoy is appointed to be treasurer of the District.
(5) Within six years following the date of formation of the District, the District shall hold an election of members of the Governing Body in conformance with Act and the PID Ordinance.
(R2012-035, approved 5-23-2012)