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Home My WebLink About20100182.tiff Esther Gesick rom: Kim Ogle nt: Friday, January 15, 2010 5:57 AM 0: Esther Gesick Subject: FW: Letter to BoCC Please add to 2009-XX Beebe Draw Farms Metro From: Elaine and Steve Cooper [mailto:sdc-mec@msn.com] Sent: Thursday, January 14, 2010 4:39 PM To: Kim Ogle Subject: Letter to BoCC Margaret Elaine Cooper Stephen D. Cooper 16500 Beebe Draw Farms Pkwy. Platteville, CO. 80651 January 14, 2010 The Weld County Board of County Commissioners: We are residents of Beebe Draw Farms, also known as Pelican Lake Ranch in Platteville, Colorado. lie are requesting that the BoCC approve the amended and restated Consolidated Service Plan before you n January 20,2010 Over the past year and through numerous posted meetings our community has spent many days and hours and substantial tax dollars to develop the current plan. All residents were afforded input to the new plan and by mailed survey the proposed plan was approved by the vast majority of the PLR residents. We request your approval of the plan so that residents may vote for it in the May 2010 election. This plan covers and protects the residents and the future of the community. We need to have your approval so that we may move forward and continue the building of this really great neighborhood. Sincerely, Margaret Elaine Cooper Stephen D. Cooper EXHIBIT • D • "tra a 1 2010-0182 Esther Gesick Oorom: Kim Ogle nt: Monday, January 18, 2010 6:16 PM : Esther Gesick; Kim Ogle Subject: Fw: BOCC Meeting, January 20, 2010 Attachments: January 18.docx Kim Ogle Planning Services Sent via Blackberry From: John R Cox <coxjohnr@msn.com> To: Kim Ogle Sent: Mon Jan 18 18:14:02 2010 Subject: BOCC Meeting,January 20, 2010 Ms. Ogle, I will not be in attendance at the upcoming BOCC Meeting concerning the Amended and Restated lionsolidated Service Plan for Beebe Draw Farms, but I am requesting that the attached statement e communicated to the Board and, if appropriate, made a part of the hearing's record. Thank you, JRC Telephone: 970 785-2255 • EXHIBIT E a 1 • January 18, 2010 Board of Weld County Commissioners 915 Tenth Street P. O. Box 758 Greeley CO 80632 Subject: Beebe Draw Farms and Equestrian Center Dear Board of County Commissioners, Having reviewed the documentation which represents the extensive work to date, I believe the proposals put forth in the Amended and Restated Consolidated Service Plan for Beebe Draw Farms, will serve to put our community back on track toward a successful future. This positive opinion is based on what I think has been accomplished by the coming-together of concerned residents and the developers in creating an orderly plan addressing concerns that have heretofore helped stall healthy growth. This new Service Plan and its components, in my view, will: • Minimize former levels of misunderstanding and distrust • Create a fresh sense of balance between resident participation in planning and decision-making and developer interests in economical,timely improvements • Protect resident interests by stabilizing project debt exposure while at the same time helping • insure that project investor dollars are protected • Give current residents and future property owners confidence in the project's viability over the long-term • Better insure that operations and maintenance costs and new capital expenditures are assigned proper and balanced priorities and oversight. I trust that the BOCC agrees and approves this entire package of proposals. John R. Cox, PLR Property Owner since 2001. 16485 Ledyard Rd So Platteville, Colorado 80651 • Esther Gesick rom: Kim Ogle nt: Tuesday, January 19, 2010 6:31 AM o: Esther Gesick Cc: 'Kristin Bowers'; Kim Ogle Subject: FW: Writing in support of the Revised Service Plan for Beebe Draw From: Kay Masselink [mailto:prairierose.kay9@gmail.com] Sent: Monday, January 18, 2010 7:03 PM To: Kim Ogle Subject: Writing in support of the Revised Service Plan for Beebe Draw Dear Kim Ogle: Thank you for your work on the Weld County Planning Commission. This letter is to let you know that I am in support of the Revised Service Plan for Beebe Draw. The Revised Service Plan has been the topic of many community meetings, board meetings, a community survey and numerous conversations. The object of all these meetings was to ensure that each member of the community had the opportunity for a voice in the creation of this document. The Beebe Draw Board also wanted all residents to have a clear vision of what this plan will do for the Beebe Draw community. I sincerely hope you will see fit to approve this plan and allow the Beebe Draw Community the opportunity to vote on this plan. I have been a resident of this community since 2001 and for the most part we are an agreeable group of people Who want a vibrant and progressive community. The past disagreements have put a lot of stress on this ommunity and cost us a huge amount of money. It is time to move forward and become a unified community again. Please consider those of us who have been around for a long time and give your support to the Revised Service Plan for Beebe Draw. Thank you for your time and work, Kathryn Masselink 16478 Burghley Ct. Platteville, CO 80651 prairierose.kay9Agmail.com • EXHIBIT lanbx Draw 1 Esther Gesick Ørom: Kim Ogle ent: Tuesday, January 19, 2010 6:33 AM o: Esther Gesick Cc: 'Kristin Bowers'; Kim Ogle Subject: FW: Support for Beebe Draw Service Plan From: Moore, Gary (GTS-PPS) [mailto:Gary.Moore@woodgroup.com] Sent: Tuesday, January 19, 2010 6:31 AM To: Kim Ogle Subject: Support for Beebe Draw Service Plan Kim Ogle BOCC Sir, I am writing this to show my support for the Beebe Draw service plan restructuring. Our Metro Board of Directors has worked long and hard, met with the community, received input from residents and been very responsive to that information. I am surprised at this late date to hear of any opposition to this proposal. I have not heard from any individual or group in our community that is opposed the service plan restructuring. Any opposition would only be a very small minority of residents. Gary Moore "P6494 Burghley Ct. latteville, CO 80651 Resident of Beebe Draw This e-mail and any attachments may contain confidential information. If you are not the intended recipient, please notify the sender immediately by return e-mail, delete this e-mail and destroy any copies. Any dissemination or use of this information by a person other than the intended recipient is unauthorized and may be illegal. • EXHIBIT 1 �Seb� brow Esther Gesick From: Bruce Barker "pent: Tuesday, January 19, 2010 10:59 AM o: CTB Subject: FW: Pelican Lake Ranch community Please include in Beebe Draw file for tomorrow. Thanks! Original Message From: Douglas Rademacher Sent: Tuesday, January 19, 2010 10:52 AM To: Bruce Barker Subject: FW: Pelican Lake Ranch community We should make this part of the record. Doug Original Message From: jaynelarrywaltz@aol.com [mailto:jaynelarrywaltz@aol.com] Sent: Tuesday, January 19, 2010 10:43 AM To: Dave Long; Douglas Rademacher; Barbara Kirkmeyer; Sean Conway; William Garcia Subject: Pelican Lake Ranch community Hello My name is Jayne Waltz, my husband Larry and I live at 16489 Burghley Court Platteville, Co. ad as you know our community is at odds. We are unable to attend the hearing Wednesday rning but would like to express to you our views. I speak only for myself and would NEVER claim to do otherwise as I think each person SHOULD do. I am a very down to earth person, I say what I mean and don't mince words. So here goes: We have been to hell and back out here and it is time for it to stop! PLEASE 1111111 I wish you could have seen us 2-3 years ago, we cared, we were a community! But sadly things have changed, we coulda, shoulda, woulda all we want but the fact remains we are here, so let's deal with it. In my opinion we have put some of our best and brightest minds to work to find a solution to this mess we find ourselves in and they have come up with a compromise solution that SHOULD please everyone. It is fair and reasonable in every aspect. What more can they do??? Please understand the committee has had so many meetings, requested input and done everything humanly possible to find a solution we can ALL live with out here. Sadly Mr. Hare doesn't agree and claims to speak for " over half of the community". PLEASE before you consider this gospel maybe you can get that list of just who he "speaks for" from him. I have requested this many times only to be told it doesn't concern me. DOESN'T concern me???? We no longer have neighbors waving as they drive by, we no longer have a community center manned with people who genuinely loved this community, keeping us up to date with everything going on, we no longer have the peaceful, loving community people would want to move into. And this is progress»»>»»»> The restructuring proposal you have in front of you could and should be our first step to healing our community. It is fair. We cannot go back only forward, please help us do this! Vote to stop all the petty crap out here! We have spent so much money, please it has to end. The committee, the lawyers and the developers have done well by us in my opinion. Now it is time to end this and start the real work on it, instead of running our mouths. flank you 0-785-6576 EXHIBIT Jayne Waltz N Esther Gesick 0 rom: Jennifer Henry [JHenry@mcgeadysisneros.com] ent: Monday, January 18, 2010 9:50 AM o: Esther Gesick Subject: FW: Proposed Revisions to Capital Pledge Agreements/Beebe Draw Service Plan Amendment Attachments: Revised Exhibit D. District No. 1 Pledge Agreement(00160989).DOC; Exhibit D. Blackline District No. 1 Pledge Agreement(00160985).DOC; Exhibit E Revised. District No. 2 Initial Pledge Agreement (00160987).DOC; Exhibit E. Blackline District No. 2 Initial Pledge Agreemen (00160984).DOC; Exhibit G Revised. District No. 2 First Exclusion Agreement (00160988).DOC; Exhibit G. Blackline No. 2 First Exclusion Agreement(00160982).DOC; Exhibit H Revised District No. 2 Pledge Agreement .doc (00160986).DOC; Exhibit H. Blackline District No. 2 Capital Pledge Agreemen (00160983).DOC Jennifer 5. Henry Paralegal McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203-1214 Main: 303.592.4380 Fax: 303.592.4385 jhenry(a�mcgeadysisneros.com Please visit our new website: www.mcgeadysisneros.com • From: Kristin Bowers Sent: Monday, January 18, 2010 9:38 AM To: Jennifer Henry Subject: FW: Proposed Revisions to Capital Pledge Agreements/Beebe Draw Service Plan Amendment Kristin J. Bowers McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203-1214 (303) 592-4380 phone (303) 592-4385 fax k bowersCcil m cq ead ys is n e ros.com Please visit our new website: www.mcgeadysisneros.com From: Kristin Bowers Sent: Monday, December 21, 2009 12:42 PM lllo: Bruce Barker; 'Kim Ogle'; Trevor Jiricek; dwarden@co.weld.co.us EXHIBIT c: MaryAnn McGeady; Julia Dybdahl gg Subject: Proposed Revisions to Capital Pledge Agreements/Beebe Draw Service Plan Amendment 3 X 0%tat* /"')taw 1 Bruce: As a follow up to your conversation with MaryAnn on Friday, bond counsel for the District has requested one revision to ae proposed Capital Pledge Agreements (which are Exhibits D, E, G, and H to the Authority Establishment Agreement). I ve attached clean and blackline versions. The only change is to Section 2.02(b) to provide for the semi-annual compounding of unpaid interest on the outstanding obligations of the Districts. This change was made after a discussion with District No. 2's financial advisor and bond counsel. In order for the pledge agreements to generate revenues as anticipated in the financing plan, the pledge agreements need to provide for compounding interest. Please feel free to contact me or MaryAnn with any questions. Thanks in advance for your time. Kristin J. Bowers McGeady Sisneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, CO 80203-1214 (303) 592-4380 phone (303) 592-4385 fax kbowers(a mcgeadvsisneros.com Please visit our new website: www.mcgeadysisneros.com The information contained in this communication is confidential,may constitute inside information,is intended only for the use of the addressee,and is the property of McGeady Sisneros PC. Unauthorized use,disclosure or copying of this communication or any part thereof is strictly prohibited and may be unlawful. If you have received this communication in error,please notify us immediately by return e-mail and destroy this communication and all copies thereof,including all attachments. • • 2 DRAFT: 11/12/09 • DISTRICT NO. 1 CAPITAL PLEDGE AGREEMENT This DISTRICT NO. 1 CAPITAL PLEDGE AGREEMENT (the "Agreement" or "Pledge Agreement"), is made and entered into and dated as of _, 2010 by and between BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 (the "District"), a quasi-municipal corporation and political subdivision of the State of Colorado and BEEBE DRAW FARMS AUTHORITY (the "Authority"), a separate legal entity. All capitalized terms used herein and not otherwise defined shall have the meanings assigned them in Article I hereof. RECITALS WHEREAS, the District and Beebe Draw Farms Metropolitan District No. 2 ("District No. 2" and, together with the District, the "Districts") are special districts organized pursuant to Sections 32-1-101, C.R.S. et seq. and operate in accordance with a Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010 (the "Service Plan"); and WHEREAS, pursuant to the Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Districts may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for the sharing of costs, the imposition and collection of taxes, and the incurring of debt; and • WHEREAS, the Service Plan discloses and establishes the necessity for, and desirability of an intergovernmental agreement between the Districts concerning the financing, construction, operation and maintenance of Public Improvements (hereinafter defined) contemplated in the Service Plan and concerning the provision of essential services in the community to be served by the Districts; and WHEREAS, in furtherance of the foregoing, and as permitted by Section 29-1-203(4), C.R.S., the Authority was established pursuant to a Beebe Draw Farms Authority Establishment Agreement dated as of , 2010, between the Districts (the "Establishment Agreement"); and WHEREAS, the Establishment Agreement created the Authority and sets forth an overall plan for financing, construction, ownership, operation and maintenance of the Public Improvements agreed upon by the Districts and intended to facilitate the provision of such Public Improvements in a timely and efficient manner, and to allocate the costs thereof equitably among the users of such Public Improvements, through cooperation among the Authority and the Districts; and WHEREAS, in accordance with the Service Plan and Establishment Agreement, the Districts and the Authority anticipate that District No. 2 may issue, from time to time, revenue bonds (as more particularly defined herein, the "Revenue Bonds") for the purpose of funding the Actual Capital Costs (defined herein); and • WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority now desire to enter into this District No. 1 Capital Pledge Agreement for the purpose ''(EXHIBIT 4840-4594-5092_L50925 (2 C4S) 'Beck"D•*w • of continuing to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided herein; and WHEREAS, at an election of the qualified electors of the District duly called for and held on May 4, 2010 (the "Election"), in accordance with law and pursuant to due notice, a majority of eligible electors who voted at such election voted in favor of the issuance of general obligation indebtedness and the imposition of taxes for the payment thereof, for the purpose of funding certain improvements and facilities, including the Public Improvements, as follows: Authorization Purpose Total Streets Water Parks and Recreation WHEREAS, the District hereby allocates the authority for debt contained in the Election to all of the indebtedness represented by this Capital Pledge Agreement, based upon the Principal Portion of the Payment Obligations hereunder (as defined herein), and the anticipated uses of the Pledged Revenues generated hereunder and payable to the Authority, as follows: Allocation of District No. 1 Pledge Agreement to Election Principal Amount of Principal Amount of Purpose Authorization Used Authorization Remaining Streets Water Parks and Recreation WHEREAS, for the purpose of funding the costs of financing, construction, completion, operation and maintenance of public improvements needed for development within the Districts, in accordance with a Consolidated Service Plan of the Districts dated May 1999 (which service plan was subsequently amended and restated by the Service Plan), the Districts previously entered into an Intergovernmental Agreement dated August 8, 2001, as subsequently amended and restated by an Amended and Restated Intergovernmental Agreement dated November 3, 2008 (the "Master IGA"), pursuant to which the District was required to impose ad valorem property taxes equal to 40 mills, inclusive of the property tax levy required with respect to the District's General Obligation Bonds, Series 1998; and WHEREAS, in furtherance of the financing plan for the Public Improvements more particularly described in the Establishment Agreement, the Districts and the Authority have terminated the Master IGA in the Establishment Agreement; and WHEREAS, the District has determined and hereby determines that the execution of this Pledge Agreement, to facilitate the purposes of this Pledge Agreement and the Establishment • Agreement, and the provision of the Public Improvements are in the best interests of the District and the residents, property owners, and taxpayers thereof and that the financing plan set forth in 2 4840-4594 5092450925 • the Establishment Agreement and implemented, in part, through the execution and delivery of this Pledge Agreement is necessary for the timely and efficient provisions of the Public Improvements and equitable allocation of the costs thereof among the users of the Public Improvements; and WHEREAS, all amendments to this Agreement made pursuant hereto and not in conflict with the ballot questions, the Service Plan or the Establishment Agreement, which authorized the debt represented by this Agreement, shall be deemed part of this Agreement and fully authorized by such ballot questions. COVENANTS NOW, THEREFORE, for and in consideration of the promises and the mutual covenants and stipulations herein, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Interpretation. In this Agreement, unless the context expressly indicates otherwise,the words defined below shall have the meanings set forth below: (a) The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any • similar terms, refer to this Agreement as a whole and not to any particular article, section, or subdivision hereof; the term "heretofore" means before the date of execution of the Agreement; and the term "hereafter" means after the date of execution of this Agreement. (b) All definitions, terms, and words shall include both the singular and the plural, and all capitalized words or terms shall have the definitions set forth in Section 1.02 hereof. (c) Words of the masculine gender include correlative words of the feminine and neuter genders, and words importing the singular number include the plural number and vice versa. (d) The captions or headings of this Agreement are for convenience only, and in no way define, limit, or describe the scope or intent of any provision, article, or section of this Agreement. (e) All schedules, exhibits, and addenda referred to herein are incorporated herein by this reference. Section 1.02. Definitions. As used herein, unless the context expressly indicates otherwise, the words defined below and capitalized throughout the text of this Agreement shall have the respective meanings set forth below. Capitalized terms used and not otherwise defined (including but not limited to Actual Capital Costs, Amenities, Amenity Account, Infrastructure, • Infrastructure Account and Required O&M Mill Levy) shall have the meanings assigned them in the Establishment Agreement. 3 4840-0594 5092^5092.5 (a) "Agreement" or "Pledge Agreement" or "Capital Pledge Agreement" shall mean this Agreement and any amendment hereto made in accordance herewith. (b) "Assignment Agreement" shall mean any agreement entered into between the Authority and District No. 2 that provides for the assignment by the Authority to District No. 2 of a specified portion of Pledged Revenues deposited in, or to be deposited in, the Infrastructure Account or Amenity Account in accordance with this Pledge Agreement and the Establishment Agreement, which assignment agreement is intended to secure payment of Revenue Bonds and/or Developer Revenue Obligations of District No. 2. (c) "Authority" means Beebe Draw Farms Authority, formed pursuant to the Establishment Agreement. (d) "Board" or "Boards" shall mean the lawfully organized Boards of Directors of the Districts. (e) "Board of County Commissioners" shall mean the Board of County Commissioners for Weld County, Colorado. (f) "Bond Documents" shall mean any resolution, indenture, reimbursement agreement or other agreement entered into or adopted by District No. 2 in connection with the issuance of Revenue Bonds. i (g) "Bondholder" means the beneficial owner of any Revenue Bond. (h) "Developer" shall have the meaning assigned it in the Establishment Agreement. (i) "Developer Revenue Obligations" shall mean notes, bonds or other indebtedness issued by the District and payable to the Developer for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement. (j) "District" shall mean Beebe Draw Farms Metropolitan District No. 1. (k) "District No. 2" shall mean Beebe Draw Farms Metropolitan District No. 2. (1) "Effective Date" shall mean _, 2010. (m) "Establishment Agreement" means the Beebe Draw Farms Authority Establishment Agreement dated _, 2010, between the District and District No. 2. (n) "Mill Levy Certification Date" means December 10 of each year, on or prior to which date an ad valorem property tax levy is required to be certified to the • County Board in accordance with Section 2.04 hereof and state law. 4 4840-4594 5092.45092 5 • (o) "1998 Bond Mill Levy" means, for any particular Mill Levy Certification Date, the ad valorem property tax levy required to be imposed upon property within the boundaries of the District for the payment of the debt service costs (including principal, interest, mandatory redemption price,trustee and paying agent fees) for the 1998 Bonds. (p) "1998 Bonds" means the District's General Obligation Bonds, Series 1998. (q) "Payment Obligation" shall mean the District's obligation to pay the Actual Capital Costs in accordance with the provisions hereof, but solely from Pledged Revenues, to the extent available. (r) "Pledged Revenues" means, collectively, Property Tax Revenues and Specific Ownership Tax Revenues. (s) "Principal Portion" means an amount equal to $ , representing the principal component of the Payment Obligation hereunder. (t) "Property Tax Revenues" means all moneys derived from imposition of the Required Mill Levy by the District, but excluding Specific Ownership Tax Revenues. (u) "Public Improvements" means, collectively, Infrastructure and Amenities, as more particularly defined in the Establishment Agreement. i (v) "Required Mill Levy" means, with respect to any particular Mill Levy Certification Date, an ad valorem mill levy (a mill being equal to 1/10 of 1 cent) imposed upon all taxable property of the District each year, commencing in tax levy year 2010 (tax collection year 2011), in an amount equal to 40 mills less the 1998 Bond Mill Levy for such Mill Levy Certification Date, and less the O&M Mill Levy for such Mill Levy Certification Date; provided that, notwithstanding anything herein to the contrary, in no event may the Required Mill Levy be established at a mill levy rate which would cause the District to derive tax revenue in any year in excess of the maximum tax increases permitted by the District's electoral authorization, and if the Required Mill Levy as calculated pursuant to the foregoing would cause the amount of taxes collected in any year to exceed the maximum tax increase permitted by the District's electoral authorization, the Required Mill Levy shall be reduced to the point that such maximum tax increase is not exceeded. (w) "Revenue Bonds" shall mean any notes, bonds or other indebtedness issued by District No. 2 for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to District No. 2 in accordance with an Assignment Agreement, excluding Developer Revenue Obligations. (x) "Service Plan" shall mean the Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado • on , 2010, as the same may be amended from time to time. 5 4840-4594 5092.45092 5 • (y) "Specific Ownership Tax Revenues" shall mean the specific ownership taxes remitted to the District pursuant to Section 42-3-107, C.R.S., or any successor statute, as a result of its imposition of the Required Mill Levy. (z) "Supplemental Act" means the "Supplemental Public Securities Act," being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended. (aa) "Termination Date" shall mean December 31, 2018; provided, however, that the District shall not be obligated to certify the Required Mill Levy after tax levy year 2017 (tax collection year 2018). ARTICLE II PAYMENT OBLIGATION Section 2.01. No Additional Electoral Approval Required. The authorization for issuance of debt, fiscal year spending, revenue collections and other constitutional matters requiring voter approval for purposes of this Agreement, was approved at an election held for the District on May 4, 2010, in accordance with law and pursuant to due notice. The performance of the terms of this Agreement requires no further electoral approval. Section 2.02. Funding of Actual Capital Costs Generally. • (a) In exchange for the Authority's agreement to provide for the acquisition, construction, improvement and equipping of the Amenities and the Infrastructure, in accordance with the Establishment Agreement and as more particularly provided in Section 2.05(c) below, the District hereby agrees to pay to the Authority for the payment of Actual Capital Costs, but solely from the sources specified herein, the amount of $ , plus interest thereon at the rate of % per annum (calculated in accordance with subparagraph (b) hereof), or such lesser amount as may be funded from the Pledged Revenues (the "Payment Obligation"). (b) Interest shall accrue on the outstanding balance of the Principal Portion of the Payment Obligation (initially $ ) at the rate of % per annum, and shall be calculated monthly based upon the outstanding Principal Portion as of the end of each month. Accrued but unpaid interest shall not compound semi-annually on each June 1 and December 1 commencing on the first June 1 or December 1 (whichever is the earliest) to occur after the date of execution of this Agreement. (c) Pledged Revenues received by the Authority (including any amounts payable to the Authority but assigned to District No. 2 in accordance with any Assignment Agreement) shall be applied, first, to the payment of accrued interest and, second, to the outstanding principal balance of the Payment Obligation. (d) The Payment Obligation constitutes a limited tax obligation of the District payable solely from and to the extent of the Pledged Revenues. The Pledged Revenues • are hereby pledged by the District to the Authority, for the payment of Actual Capital Costs in accordance with the provisions hereof. The Payment Obligation shall constitute 6 4840-4594 5092.45092 4 • an irrevocable lien upon the Pledged Revenues. The District hereby elects to apply all of the provisions of the Supplemental Act to this Pledge Agreement and the Payment Obligation. Section 2.03. Limitations on Payment Obligation. In no event shall the total or annual obligations of the District hereunder exceed the maximum amounts permitted under its electoral authority and any other applicable law. The entire Payment Obligation will be deemed defeased and no longer outstanding upon the earlier of: (i) the payment by the District of such amount; or (ii)the Termination Date. Section 2.04. Imposition of Required Mill Levy. (a) In order to fund the Payment Obligation, the District agrees to levy on all of the taxable property of the District, in addition to all other taxes, direct annual taxes in tax levy year 2010 (tax collection year 2011), and in each year thereafter through and including tax levy year 2017 (tax collection year 2018), but in no event after tax levy year 2017 (tax collection year 2018), in the amount of the Required Mill Levy. Nothing herein shall be construed to require the District to impose an ad valorem property tax levy for the payment of the Payment Obligation in excess of the Required Mill Levy or after the Termination Date. (b) The parties hereto acknowledge that Article 5 of the Establishment Agreement sets forth a process by which the Authority will develop and submit to the 40 Districts an annual operating budget. In order to facilitate the determination of the Required Mill Levy by the District, the Authority shall provide to the District, the preliminary and final O&M Mill Levy for the immediately succeeding Mill Levy Certification Date, in the time and manner set forth in the Establishment Agreement. (c) No later than December 5th of each year, the District shall provide written notice to the Authority of the Required Mill Levy that the District intends to certify on the immediately succeeding Mill Levy Certification Date, and the District shall certify the same no later than December 10 unless notified by the Authority that the Required Mill Levy as determined by the District is not in compliance with the requirements of this Agreement. (d) The District acknowledges that it has actively participated in the development of the plan to finance Actual Capital Costs as set forth in the Establishment Agreement and herein, including the method for calculation of the Required Mill Levy as set forth herein, that such calculation is designed to correlate to the benefit to the District of the Public Improvements financed by the Pledged Revenues (and, Revenue Bonds, if any) and that the calculation of the Required Mill Levy in accordance with the foregoing and obligation of the District to impose the same in each year during the term of this Agreement shall be final and binding upon the District. (e) This Section 2.04 is hereby declared to be the certificate of the District to the Board of County Commissioners indicating the aggregate amount of taxes to be levied for the purposes of paying the Payment Obligation due hereunder. 7 48404594 5092."5092 5 • (I) It shall be the duty of the District annually at the time and in the manner provided by law for the levying of the District's taxes, if such action shall be necessary to effectuate the provisions of this Agreement, to ratify and carry out the provisions hereof with reference to the levy and collection of the ad valorem property taxes herein specified, and to require the officers of the District to cause the appropriate officials of Weld County, to levy, extend and collect said ad valorem taxes in the manner provided by law for the purpose of providing funds for the payment of the amounts to be paid hereunder promptly as the same, respectively, become due. Said taxes, when collected, shall be applied only to the payment of the amounts to be paid hereunder. (g) Said taxes shall be levied, assessed, collected, and enforced at the time and in the form and manner and with like interest and penalties as other general taxes in the State of Colorado. (h) The District shall pursue all reasonable remedies to collect, or cause the collection of, delinquent ad valorem taxes within its boundaries. Section 2.05. Payment and Application of Revenues. (a) Subject to Section 2.09 hereof, the District hereby agrees to remit to the Authority [as soon as practicable upon receipt], all revenues comprising Property Tax Revenues and Specific Ownership Tax Revenues (subject to the requirements of any covenants or undertakings of the District with respect to the 1998 Bonds). • (b) All amounts payable by the District hereunder shall be paid in lawful money of the United States of America by check mailed or delivered, or by wire transfer, to the Authority. (c) The Authority hereby agrees that, subject to Section 2.09, the Authority shall promptly deposit all Pledged Revenues received by it in accordance with this Agreement into the Infrastructure Account or the Amenity Account established under the Establishment Agreement and shall cause the same to be applied to Actual Capital Costs relating to Infrastructure or Amenities, respectively, as more particularly provided in the Establishment Agreement; provided, however, that, notwithstanding the foregoing, the Pledged Revenues may be directly deposited by the District into the Infrastructure Account or Amenity Account, as directed by the Authority and in accordance with the Establishment Agreement. Without limiting the foregoing, the Authority hereby agrees to undertake and diligently pursue the provision of Public Improvements in accordance with the Establishment Agreement, to the extent funding is available therefor from the Pledged Revenues payable hereunder. The Authority and the District acknowledge that the Establishment Agreement, including the provisions thereof relating to the deposit and use of moneys in the Infrastructure Account and Amenity Account, may not be amended or modified in any way without the prior written consent of the District. (d) The Authority shall provide to the District, not less than 180 days after the • end of each fiscal year, a report indicating, separately, the amounts of Property Tax Revenues and Specific Ownership Tax Revenues received by the Authority and deposited 8 4840-0594 5092.45092 5 • into the Infrastructure Account and Amenity Account. Such report shall also provide the amount of Pledged Revenues disbursed from the Infrastructure Account to fund Roads and, separately, Water (both as defined in the Establishment Agreement), and the amount of Pledged Revenues disbursed from the Amenity Account to fund Amenities. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums herein required to pay the amounts due hereunder are hereby appropriated for that purpose, and said amounts for each year shall be included in the annual budget and the appropriation resolution or measures to be adopted or passed by the Board of the District in each year while any of the obligations herein authorized are outstanding and unpaid. No provisions of any constitution, statute, resolution or other order or measure enacted after the execution of this Agreement shall in any manner be construed as limiting or impairing the obligation of the District to levy ad valorem property taxes, or as limiting or impairing the obligation of the District to levy, administer, enforce and collect the ad valorem property taxes as provided herein for the payment of the obligations hereunder. Furthermore, the District acknowledges that purchasers and credit enhancers of the Developer Revenue Obligations and the Revenue Bonds may incur costs and expenses, and will have otherwised purchased or provided credit enhancement for the Developer Revenue Obligations and Revenue Bonds, in reliance upon the promise of the District to impose the Required Mill Levy and pay the Pledged Revenues generated therefrom to the Authority in accordance with this Agreement and, as a result, such parties shall be entitled to rely on the payment obligations of the District to the Authority contained hereunder. Accordingly, it is • acknowledged by the parties hereto that the purpose of this Section 2.06 is to ensure that the Authority receives all payments due herein in a timely manner in order to provide for the payment of amounts due to such parties. Section 2.07. Limited Defenses; Specific Performance. It is understood and agreed by the District that its obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated herein, and so long as any obligation of the District hereunder remains unfulfilled, the District agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim, estoppel, or other defenses to its Payment Obligation, or take or fail to take any action which would delay a payment to the Authority or the Authority's ability to receive payments due hereunder. Notwithstanding that this Agreement specifically prohibits and limits defenses and claims of the District, in the event that the District believes that it has valid defenses, setoffs, counterclaims, or other claims other than specifically permitted by this Agreement, it shall, nevertheless, make all payments as described herein and then may attempt or seek to recover such payments by actions at law or in equity for damages or specific performance, respectively. Section 2.08. Future Exclusion of Property. The parties agree that this Agreement constitutes "indebtedness" as contemplated by Section 32-1-503, C.R.S. Any property excluded from the District after the date hereof is to remain liable for the imposition of the Required Mill Levy and payment of the proceeds thereof in accordance with the provisions hereof, to the same extent as such property otherwise remains liable for the debt of the District, as provided in • Section 32-1-503, C.R.S.. In the event that any order providing for the exclusion of property from the District does not so provide and specifically indicate the liability of such excluded 9 4840-4594 5092.45092 5 • property for the obligations set forth herein, the Authority and the District hereby agree to take all actions reasonably necessary to cause the property owners of such proposed excluded property to covenant to assume all responsibilities under this Agreement, which covenants shall run with the land and shall be in a form satisfactory to the Authority. Section 2.09. Future Debt of the District. (a) The parties acknowledge that, in accordance with the Establishment Agreement, District No. 2 may issue Revenue Bonds or enter into Developer Revenue Obligations for the purpose of funding Actual Capital Costs relating to Infrastructure and, with the consent of the Authority, Amenities, which Revenue Bonds and Developer Revenue Obligations are intended to be payable from Pledged Revenues assigned by the Authority to District No. 2, which are otherwise required, in accordance with this Agreement, to be paid to the Authority and deposited into the Infrastructure Account and Amenity Account, as applicable. (b) The District agrees that in compliance with the Establishment Agreement it will not issue or incur bonds, notes, or other obligations payable in whole or in part from, or constituting a lien upon, the general ad valorem taxes of District or payable from any other revenues of the District or otherwise constituting indebtedness. (c) In the event that, in accordance with the Establishment Agreement and subject to the limitations thereof, District No. 2 issues Revenue Bonds or Developer • Revenue Obligations to fund the costs of Public Improvements, the District acknowledges that District No. 2 and the Authority may enter into an Assignment Agreement to provide for the payment of such Revenue Bonds or Developer Revenue Obligations. Any such Assignment Agreement shall provide that the portions of such Pledged Revenues that would otherwise be applied, in accordance with the Establishment Agreement, to costs of Amenities or Infrastructure, shall be applied to the payment of Revenue Bonds or Developer Revenue Obligations funding Amenities or Infrastructure, respectively. In no event shall an Assignment Agreement abrogate the intended allocation of Pledged Revenues between costs of Amenities and Infrastructure, as provided in the Establishment Agreement. (d) At least once a year as required by applicable state law, the District will cause an audit to be performed of the records relating to revenues and expenditures of the District. In addition, at least once a year as required by applicable state law, the District will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places, time, and manner as required by applicable state law. Section 2.10. Representations and Warranties of the District. The District hereby makes the following representations and warranties: (a) The District is a quasi-municipal corporation and political subdivision duly organized and validly existing under the laws of the State of Colorado. • (b) The District has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The District's 10 48404594 5092 450915 • execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The District is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the District to perform its obligations hereunder. The execution, delivery and performance by the District of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ,judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the District in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the District pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the District is a party or which purports to be binding upon the District or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. (d) The District has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the District of this Pledge Agreement. • (e) There is no action, suit, inquiry, investigation, or proceeding to which the District is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the District threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the District is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the District to perform its obligations under,this Pledge Agreement. (f) This Pledge Agreement constitutes the legal, valid, and binding obligation of the District, enforceable against the District in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). (g) It is acknowledged that the payment obligations of the District hereunder are expressly subordinate to the payment obligations of the District with respect to its General Obligation Bonds, Series 1998. Section 2.11. Representations and Warranties of the Authority. The Authority hereby makes the following representations and warranties: • 11 4840.4594 509245092 5 • (a) The Authority is a separate legal entity duly organized and validly existing under the laws of the State of Colorado. (b) The Authority has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The Authority's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The Authority is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the Authority to perform its obligations hereunder. The execution, delivery and performance by the Authority of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the Authority in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the Authority pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the Authority is a party or which purports to be binding upon the Authority or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. (d) The Authority has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the Authority of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the Authority is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the Authority threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the Authority is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the Authority to perform its obligations under,this Pledge Agreement. (f) This Pledge Agreement constitutes the legal, valid, and binding obligation of the Authority, enforceable against the Authority in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). • 12 4840-4594 5092450925 • ARTICLE III EVENTS OF DEFAULT AND REMEDIES Section 3.01. Events of Default. The occurrence or existence of any one or more of the following events shall be an "Event of Default" hereunder, and there shall be no default or Event of Default hereunder except as provided in this Section: (a) The District fails or refuses to impose the Required Mill Levy or to remit the Property Tax Revenues and Specific Ownership Tax Revenues, as required by the terms of this Pledge Agreement; (b) any representation or warranty made by any party in this Pledge Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Ply; (c) any party fails in the performance of any other of its covenants in this Pledge Agreement, and such failure continues for sixty (60) days after written notice specifying such default and requiring the same to be remedied is given to any of the parties hereto; or • (d) (i) any party shall commence any case, proceeding, or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, or other similar official for itself or for any substantial part of its property, or any party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any party any case, proceeding, or other action of a nature referred to in clause (i) and the same shall remain not dismissed within ninety (90) days following the date of filing; or (iii) there shall be commenced against any party any case, proceeding, or other action seeking issuance of a warrant of attachment, execution, distraint, or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from the entry thereof, or (iv) any party shall take action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) any party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due. Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance of an Event of Default, any party may proceed to protect and enforce its rights against the party • or parties causing the Event of Default by mandamus or such other suit, action, but solely for the purpose of seeking specific performance. 13 4840-4594 5092.^5092.5 • ARTICLE IV MISCELLANEOUS Section 4.01. Pledge of Pledged Revenues. The creation, perfection, enforcement, and priority of the pledge of revenues to secure or pay the Payment Obligation shall be governed by Section!1-57-208 of the Supplemental Act and this Pledge Agreement. The Property Tax Revenues and Specific Ownership Tax Revenues shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the District irrespective of whether such persons have notice of such liens. Section 4.02. No Recourse against Officers and Agents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the Boards of Directors of the District or the Authority, or any officer or agent of the District or Authority acts in good faith, no civil recourse shall be available against such member, officer, or agent for, with respect to the District, payment of the Payment Obligation or, with respect to the Authority, provision of the Public Improvements. Such recourse shall not be available either directly or indirectly through the Authority or the District, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of this Pledge Agreement and as a part of the consideration hereof, the Authority and the District each specifically waives any such recourse. • Section 4.03. Conclusive Recital. Pursuant to Sectionl 1-57-210 of the Supplemental Act, this Pledge Agreement contains a recital that it is issued pursuant to certain provisions of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity of this Pledge Agreement after its delivery for value. Section 4.04. Limitation of Actions. Pursuant to Sectionl 1-57-212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization, execution, or delivery of this Pledge Agreement shall be commenced more than thirty days after the authorization of this Pledge Agreement. Section 4.05. Notices. Except as otherwise provided herein, all notices or payments required to be given under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, or air freight, to the following addresses: If to District: With copies to: If to the Authority: With copies to: • 14 48404594 5092.45092. • All notices or documents delivered or required to be delivered under the provisions of this Agreement shall be deemed received one (1) day after hand delivery or three (3) days after mailing. Either party by written notice so provided may change the address to which future notices shall be sent. Section 4.06. Miscellaneous. (a) This Pledge Agreement and the Establishment Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Pledge Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Pledge Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. In the event of any conflict between provisions of this Pledge Agreement and any other agreement between the District and the Authority, provisions of this Pledge Agreement shall control. No party has been induced to enter into this Pledge Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment, or warranty outside those expressly set forth in this Pledge Agreement. (b) If any term or provision of this Pledge Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge . Agreement is stricken in accordance with the provisions hereof, then such stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. (c) It is intended that there be no third party beneficiaries of this Pledge Agreement, other than District No. 2 and the Developer. (d) This Pledge Agreement may not be assigned or transferred by any party without the prior written consent of each of the other parties. (e) This Pledge Agreement shall be governed by and construed under the applicable laws of the State of Colorado. (1) Venue for any and all claims brought by either Party to enforce any provision of this Agreement shall be the District Court in and for the County of Weld, State of Colorado. (g) This Pledge Agreement may be amended or supplemented by the parties, but any such amendment or supplement must be in writing and must be executed by all parties. (h) If the date for making any payment or performing any action hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are authorized or • required by law to remain closed, such payment may be made or act performed on the 15 4840-4594 5092 450915 • next succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed. (i) Each party has participated fully in the review and revision of this Pledge Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Pledge Agreement. The language in this Pledge Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. (j) This Pledge Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 4.07. Effective Date and Termination Date. This Agreement shall become effective on the Effective Date, and shall remain in effect until the Termination Date. [Signatures appear on following page.] • • 16 4840-4594 5092 450915 • IN WITNESS WHEREOF, the District and the Authority have executed this Agreement as of the day and year first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By: President ATTEST: Secretary BEEBE DRAW FARMS AUTHORITY By: President 4) ATTEST: Secretary Agreed with respect to Section 4.03 of this District No. 1 Capital Pledge Agreement, as of the day and year first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary • 17 48404594 5092.450925 • Document comparison done by DeltaView on Monday, December 21, 2009 12:27:29 PM Input: Document 1 WORLDOX://W:\Clients\1012\emailin\00158213.DOC Document 2 WORLDOX://W:\Clients\1012\emailin\00160981.DOC Rendering set Standard Legend: Insertion Deletion Moved-from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell • Shiflett* Count Insertions 3 Deletions 3 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 6 • DRAFT: 4-1412/18/09 • INITIAL DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT This INITIAL DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT (the "Agreement" or "Pledge Agreement"), is made and entered into and dated as of 2010 by and between BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 (the "District"), a quasi-municipal corporation and political subdivision of the State of Colorado and BEEBE DRAW FARMS AUTHORITY (the "Authority"), a separate legal entity. All capitalized terms used herein and not otherwise defined shall have the meanings assigned them in Article I hereof. RECITALS WHEREAS, the District and Beebe Draw Farms Metropolitan District No. 1 ("District No. 1" and, together with the District, the "Districts") are special districts organized pursuant to Section 32-1-101, C.R.S. et seq. and operate in accordance with a Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010 (the "Service Plan"); and WHEREAS, pursuant to the Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Districts may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for the sharing of costs, the imposition and collection of taxes, and the incurring of debt; and • WHEREAS, the Service Plan discloses and establishes the necessity for, and desirability of an intergovernmental agreement between the Districts concerning the financing, construction, operation and maintenance of Public Improvements (hereinafter defined) contemplated in the Service Plan and concerning the provision of essential services in the community to be served by the Districts; and WHEREAS, in furtherance of the foregoing, and as permitted by Section 29-1-203(4), C.R.S., the Authority was established pursuant to a Beebe Draw Farms Authority Establishment Agreement dated as of , 2010, between the Districts (the "Establishment Agreement"); and WHEREAS, the Establishment Agreement created the Authority and sets forth an overall plan for financing, construction, ownership, operation and maintenance of the Public Improvements agreed upon by the Districts and intended to facilitate the provision of such Public Improvements in a timely and efficient manner, and to allocate the costs thereof equitably among the users of such Public Improvements, through cooperation among the Authority and the Districts; and WHEREAS, in accordance with the Service Plan and Establishment Agreement, the District and the Authority anticipate that the District may issue, from time to time, revenue bonds (as more particularly defined herein, the "Revenue Bonds") for the purpose of funding the Actual Capital Costs (defined herein); and • EXHIBIT X (3d5) 4812-8340 5316 45316 5 i. ) • WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority now desire to enter into this Initial District No. 2 Capital Pledge Agreement to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided herein; and WHEREAS, at an election of the qualified electors of the District duly called for and held on May 4, 2010 (the "Election"), in accordance with law and pursuant to due notice, a majority of eligible electors who voted at such election voted in favor of the issuance of general obligation indebtedness and the imposition of taxes for the payment thereof, for the purpose of funding certain improvements and facilities, including the Public Improvements, as follows: Authorization Purpose Total Streets Water Parks and Recreation WHEREAS, the District allocates the authority for debt obtained in the Election to all of the indebtedness represented by this Pledge Agreement, based upon the Principal Portion of the Payment Obligation (defined herein), and the anticipated uses of the Pledged Revenues generated hereunder and payable to the Authority, as follows: • Allocation of Pledge Agreement to Election Principal Amount of Principal Amount of Purpose Authorization Used Authorization Remainin Streets Water Parks and Recreation provided that the foregoing allocation is based upon the District's best estimate at the time this Pledge Agreement is being entered into, the District may at any time reallocate the foregoing in accordance with the actual Public Improvements financed or refinanced as a result of this Pledge Agreement and, will, [from time to time], allocate additional or adjust existing electoral authority as applicable; and WHEREAS, the District has determined and hereby determines that the execution of this Pledge Agreement, to facilitate the purposes of this Pledge Agreement and the Establishment Agreement, and the provision of the Public Improvements are in the best interests of the District and the residents, property owners, and taxpayers thereof and that the financing plan set forth in the Establishment Agreement and implemented, in part, through the execution and delivery of this Pledge Agreement is necessary for the timely and efficient provisions of the Public Improvements and equitable allocation of the costs thereof among the users of the Public • Improvements; and 2 4812-8340 5316 45116 5 • WHEREAS, all amendments to this Agreement made pursuant hereto and not in conflict with the ballot questions, the Service Plan or the Establishment Agreement, which authorized the debt represented by this Agreement, shall be deemed part of this Agreement and fully authorized by such ballot questions. COVENANTS NOW, THEREFORE, for and in consideration of the promises and the mutual covenants and stipulations herein, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Interpretation. In this Agreement, unless the context expressly indicates otherwise, the words defined below shall have the meanings set forth below: (a) The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms, refer to this Agreement as a whole and not to any particular article, section, or subdivision hereof; the term "heretofore" means before the date of execution of the Agreement; and the term "hereafter"means after the date of execution of this Agreement. (b) All definitions, terms, and words shall include both the singular and the • plural, and all capitalized words or terms shall have the definitions set forth in Section 2.1 hereof. (c) Words of the masculine gender include correlative words of the feminine and neuter genders, and words importing the singular number include the plural number and vice versa. (d) The captions or headings of this Agreement are for convenience only, and in no way define, limit, or describe the scope or intent of any provision, article, or section of this Agreement. (e) All schedules, exhibits, and addenda referred to herein are incorporated herein by this reference. Section 1.02. Definitions. As used herein, unless the context expressly indicates otherwise, the words defined below and capitalized throughout the text of this Agreement shall have the respective meanings set forth below. Capitalized terms used and not otherwise defined (including but not limited to Actual Capital Costs, Amenities, Amenity Account, Infrastructure, Infrastructure Account and Required O&M Mill Levy) shall have the meanings assigned them in the Establishment Agreement. (a) "Actual Capital Costs" shall have the meaning assigned it in the Establishment Agreement. • 3 4812-8340 5316 45116 5 • (b) "Agreement" or "Pledge Agreement" or "Capital Pledge Agreement" shall mean this Agreement and any amendment hereto made in accordance herewith. (c) "Assignment Agreement" shall mean any agreement entered into between the Authority and the District that provides for the assignment by the Authority to the District of a specified portion of Pledged Revenues deposited in, or to be deposited in, the Infrastructure Account or Amenity Account in accordance with this Pledge Agreement and the Establishment Agreement, which Assignment Agreement is intended to secure payment of Revenue Bonds and/or Developer Revenue Obligations of the District. (d) "Authority" means Beebe Draw Farms Authority, formed pursuant to the Establishment Agreement. (e) "Board" or "Boards" shall mean the lawfully organized Boards of Directors of the Districts. (f) "Board of County Commissioners" shall mean the Board of County Commissioners for Weld County, Colorado. (g) "Bond Documents" shall mean any resolution, indenture, reimbursement agreement or other agreement entered into or adopted by the District in connection with the issuance of Revenue Bonds. • (h) "Bondholder" means the beneficial owner of any Revenue Bond. (i) "Developer" shall have the meaning assigned it in the Establishment Agreement. (j) "Developer Revenue Obligations" shall mean notes, bonds or other indebtedness issued by the District and payable to the Developer for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement. (k) "Development Fees" shall have the meaning assigned it in the Establishment Agreement. (1) "District" shall mean Beebe Draw Farms Metropolitan District No. 2. (m) "District No. 1" shall mean Beebe Draw Farms Metropolitan District No. 1. (n) "Effective Date" shall mean _, 2010. (o) "Establishment Agreement" means the Beebe Draw Farms Authority Establishment Agreement dated _, 2010, between the District and District No. 1. • (p) "Maximum Annual Limited Receipts" shall mean, for any particular calendar year, the dollar amount that would result from the imposition of an ad valorem 4 4812-8340 5316.45316 5 • property tax levy of 50 mills (without adjustment) on the final certified assessed valuation of the District, as certified to the District by the County Assessor on the immediately preceding December 10. (q) "Mill Levy Certification Date" means December 10 of each year, on or prior to which date an ad valorem property tax levy is required to be certified to the County Board in accordance with Section 2.04 hereof and state law. (r) "1998 Bond Mill Levy" means, for any particular Mill Levy Certification Date, the ad valorem property tax levy required to be imposed upon property within the boundaries of District No. 1 for the payment of the debt service costs (including principal, interest, mandatory redemption price, trustee and paying agent fees) for the General Obligation Bonds, Series 1998 issued by District No. 1. (s) "Payment Obligation" shall mean the District's obligation to pay the Actual Capital Costs in accordance with the provisions hereof, but solely from Pledged Revenues, to the extent available. (t) "Pledged Revenues" means, collectively, Property Tax Revenues, Specific Ownership Tax Revenues, and Development Fees. (u) "Principal Portion" means an amount equal to $ , representing the principal component of the Payment Obligation hereunder. • (v) "Property Tax Revenues" means all moneys derived from imposition of the Required Mill Levy by the District, but excluding Specific Ownership Tax Revenues. (w) "Public Improvements" means, collectively, Infrastructure and Amenities, as more particularly defined in the Establishment Agreement. (x) "Required Mill Levy" means, with respect to any particular Mill Levy Certification Date, an ad valorem mill levy (a mill being equal to 1/10 of 1 cent) imposed upon all taxable property of the District each year, commencing in tax levy year 2010 (tax collection year 2011), in an amount equal to 50 mills less the 1998 Bond Mill Levy for such Mill Levy Certification Date, and less the Required O&M Mill Levy for such Mill Levy Certification Date; provided that: (i) in the event the method of calculating assessed valuation is changed after June 1, 2010, the 50 mills described above will be increased or decreased to reflect such changes, such increases or decreases to be determined by the District in good faith (such determination to be binding and final) so that to the extent possible, the actual tax revenues generated by the mill levy, as adjusted, are neither diminished nor enhanced as a result of such changes. For purposes of the foregoing, a change in the ratio of actual valuation to assessed valuation shall be deemed to be a change in the method of calculating assessed valuation; and • (ii) notwithstanding anything herein to the contrary, in no event shall the Required Mill Levy exceed 50 mills, except under the circumstances set forth 5 4812-8340 531615716 1 • in Section 2.03(b) hereof, and subject to the limitations set forth therein, and, in the event that the Required Mill Levy as calculated pursuant to the foregoing would exceed 50 mills and Section 2.03(b) is not applicable, then the Required Mill Levy shall be reduced to equal 50 mills; and (iii) notwithstanding anything herein to the contrary, in no event may the Required Mill Levy be established at a mill levy rate which would cause the District to derive tax revenue in any year in excess of the maximum tax increases permitted by the District's electoral authorization, and if the Required Mill Levy as calculated pursuant to the foregoing would cause the amount of taxes collected in any year to exceed the maximum tax increase permitted by the District's electoral authorization, the Required Mill Levy shall be reduced to the point that such maximum tax increase is not exceeded. (y) "Revenue Bonds" shall mean notes, bonds or other indebtedness issued by the District for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement, excluding Developer Revenue Obligations. (z) "Service Plan" shall mean the Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on 2010. • (aa) "Specific Ownership Tax Revenues" shall mean the specific ownership taxes remitted to the District pursuant to Section 42-3-107, C.R.S., or any successor statute, as a result of its imposition of the Required Mill Levy. (bb) "Subsequent Pledge Agreements" means pledge agreements entered into between the District and the Authority subsequent to the date hereof providing for the imposition of ad valorem property taxes by the District and payment of the proceeds thereof to the Authority, as contemplated by the Establishment Agreement. (cc) "Supplemental Act" means the "Supplemental Public Securities Act," being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended. (dd) "Termination Date" shall mean , 2050 (i.e., the imposition of taxes hereunder shall not be made after tax levy year 2050 and such taxes shall not be collected after tax collection year 2051), or such earlier date as the Payment Obligation hereunder is refunded by a Subsequent Pledge Agreement. ARTICLE II PAYMENT OBLIGATION Section 2.01. No Additional Electoral Approval Required. The authorization for • issuance of debt, fiscal year spending, revenue collections and other constitutional matters requiring voter approval for purposes of this Agreement, was approved at an election held for the 6 4812-8340 5316453165 • District on May 4, 2010, in accordance with law and pursuant to due notice. The performance of the terms of this Agreement requires no further electoral approval. Section 2.02. Funding of Actual Capital Costs Generally. (a) In exchange for the Authority's agreement to provide for the acquisition, construction, improvement and equipping of the Amenities and the Infrastructure, in accordance with the Establishment Agreement and as more particularly provided in Section 2.05(c) below, and in exchange for the purchase by any Bondholder of Revenue Bonds (if any) issued to fund Actual Capital Costs and payable from Pledged Revenues generated hereunder, the District hereby agrees to pay to the Authority for the payment of Actual Capital Costs, but solely from the sources specified herein, the amount of $ , plus interest thereon at the rate of % per annum (calculated in accordance with subparagraph (b) hereof), or such lesser amount as may be funded from the Pledged Revenues (the "Payment Obligation"). (b) Interest shall accrue on the outstanding balance of the Principal Portion of the Payment Obligation (initially $ ) at the rate of % per annum, and shall be calculated monthly based upon the outstanding Principal Portion as of the end of each month. Accrued but unpaid interest shall not compound semi-annually on each June 1 and December 1. commencine on the first June 1 or December 1 (whichever is the earliest) to occur after the date of execution of this Agreement. • (c) Pledged Revenues received by the Authority (including any amounts payable to the Authority but assigned to the District in accordance with any Assignment Agreement) shall be applied, first, to the payment of accrued interest and, second, to the outstanding principal balance of the Payment Obligation. (d) The Payment Obligation constitutes a limited tax obligation of the District payable solely from and to the extent of the Pledged Revenues. The Pledged Revenues are hereby pledged by the District to the Authority (and, to the extent of any Bondholders, for the benefit of such Bondholders), for the payment of Actual Capital Costs in accordance with the provisions hereof. The Payment Obligation shall constitute an irrevocable lien upon the Pledged Revenues. The District hereby elects to apply all of the provisions of the Supplemental Act to this Pledge Agreement and the Payment Obligation. Section 2.03. Limitations on Payment Obligation. (a) In no event shall the total or annual obligations of the District hereunder exceed the maximum amounts permitted under its electoral authority and any other applicable law. The entire Payment Obligation will be deemed defeased and no longer outstanding upon the earlier of: (i) the payment by the District of such amount; or (ii) the Termination Date. (b) In accordance with the definition of Required Mill Levy set forth in • Section 1.02 hereof, the Required Mill Levy may not exceed 50 mills, except as specifically provided in this Section 2.03(b). In the event that, for the purpose of funding 7 4812-8340 5316.45316 5 • Actual Capital Costs, the District determines to issue Revenue Bonds and, in connection therewith, enters into an Assignment Agreement with the Authority relating to revenues payable hereunder for the purpose of providing for the payment of such Revenue Bonds, if and only if such Revenue Bonds satisfy the conditions of Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S., (the satisfaction of which shall be determined by the District and stated in the applicable Assignment Agreement) then so long as such Revenue Bonds are outstanding, the following provisions shall apply: (i) subparagraph (ii) of the definition of Required Mill Levy shall not apply; and (ii) in no event shall the District receive in any year under any Assignment Agreement for the payment of Revenue Bonds which do not satisfy Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S., or under any Assignment Agreement for the payment of a Developer Revenue Obligation, Property Tax Revenues and Specific Ownership Tax Revenues resulting from the imposition of the Required Mill Levy by the District in excess of the Maximum Annual Limited Receipts for such year; and (iii) In no event shall the Authority retain in any year, after the payment (or retention by the District) of any amounts due to the District in accordance with an Assignment Agreement, revenues resulting from the imposition by the District of the Required Mill Levy (whether Property Tax Revenues or Specific • Ownership Tax Revenues) in excess of the Maximum Annual Limited Receipts for such year. Any amounts in excess thereof shall [be deducted by the District from the amount of Property Tax Revenues otherwise payable to the Authority] in the succeeding year, and shall be applied by the District to any lawful purpose. Notwithstanding any of the foregoing, this paragraph shall not operate to modify or limit any amounts payable by the District to the Authority in accordance with any other agreements between the District and the Authority or the Establishment Agreement, including the obligation of the District to pay proceeds of the Required O&M Mill Levy to the Authority in accordance with the Establishment Agreement. Section 2.04. Imposition of Required Mill Levy. (a) In order to fund the Payment Obligation, the District agrees to levy on all of the taxable property of the District, in addition to all other taxes, direct annual taxes in tax levy year 2010 (tax collection year 2011) and in each year thereafter (but in no event after the Termination Date), in the amount of the Required Mill Levy. Nothing herein shall be construed to require the District to impose an ad valorem property tax levy for the payment of the Payment Obligation in excess of the Required Mill Levy or after the Termination Date. (b) The parties hereto acknowledge that Article 5 of the Establishment • Agreement sets forth a process by which the Authority will develop and submit to the Districts an annual operating budget. In order to facilitate the determination of the 8 4812-8340 5316 45316 5 • Required Mill Levy by the District, the Authority shall provide to the District, the preliminary and final O&M Mill Levy and the 1998 Bonds Mill Levy for the immediately succeeding Mill Levy Certification Date, in the time and manner set forth in the Establishment Agreement. (c) No later than December 5 of each year, the District shall provide written notice to the Authority of the Required Mill Levy that the District intends to certify on the immediately succeeding Mill Levy Certification Date, and the District shall certify the same on or before December 10 unless notified by the Authority that the Required Mill Levy as determined by the District is not in compliance with the requirements of this Agreement. (d) The District acknowledges that it has actively participated in the development of the plan to finance Actual Capital Costs as set forth in the Establishment Agreement and herein, including the method for calculation of the Required Mill Levy as set forth herein, that such calculation is designed to correlate to the benefit to the District of the Public Improvements financed by the Pledged Revenues (and, Revenue Bonds, if any) and that the calculation of the Required Mill Levy in accordance with the foregoing and obligation of the District to impose the same in each year during the term of this Agreement shall be final and binding upon the District. (e) This Section 2.04 is hereby declared to be the certificate of the District to the Board of County Commissioners indicating the aggregate amount of taxes to be • levied for the purposes of paying the Payment Obligation due hereunder. (f) It shall be the duty of the District annually at the time and in the manner provided by law for the levying of the District's taxes, if such action shall be necessary to effectuate the provisions of this Agreement, to ratify and carry out the provisions hereof with reference to the levy and collection of the ad valorem property taxes herein specified, and to require the officers of the District to cause the appropriate officials of Weld County, to levy, extend and collect said ad valorem taxes in the manner provided by law for the purpose of providing funds for the payment of the amounts to be paid hereunder promptly as the same, respectively, become due. Said taxes, when collected, shall be applied only to the payment of the amounts to be paid hereunder. (g) Said taxes shall be levied, assessed, collected, and enforced at the time and in the form and manner and with like interest and penalties as other general taxes in the State of Colorado. (h) The District shall pursue all reasonable remedies to collect, or cause the collection of, delinquent ad valorem taxes within its boundaries. Section 2.05. Payment and Application of Revenues. (a) Subject to Section 2.09 hereof, the District hereby agrees to remit to the Authority [as soon as practicable upon receipt], all revenues comprising Pledged • Revenues. 9 4812-8340 531645316 4 • (b) All amounts payable by the District hereunder shall be paid in lawful money of the United States of America by check mailed or delivered, or by wire transfer, to the Authority (or at the direction of Authority, any other entity in accordance with applicable Bond Documents). (c) The Authority hereby agrees that, subject to Section 2.09, the Authority shall promptly deposit all Pledged Revenues received by it in accordance with this Agreement into the Infrastructure Account or the Amenity Account established under the Establishment Agreement and shall cause the same to be applied to Actual Capital Costs relating to Infrastructure or Amenities, respectively, as more particularly provided in the Establishment Agreement; provided, however, that, notwithstanding the foregoing, the Pledged Revenues may be directly deposited by the District into the Infrastructure Account or Amenity Account, as directed by the Authority and in accordance with the Establishment Agreement. Without limiting the foregoing, the Authority hereby agrees to undertake and diligently pursue the provision of Public Improvements in accordance with the Establishment Agreement, to the extent funding is available therefor from the Pledged Revenues payable hereunder. The Authority and the District acknowledge that the Establishment Agreement, including the provisions thereof relating to the deposit and use of moneys in the Infrastructure Account and Amenity Account, may not be amended or modified in any way without the prior written consent of the District. (d) The Authority shall provide to the District, not less than 180 days after the end of each fiscal year, a report indicating, separately, the amounts of Property Tax • Revenues, Specific Ownership Tax Revenues and Development Fees received by the Authority and deposited into the Infrastructure Account and Amenity Account. Such report shall also provide the amount of Pledged Revenues disbursed from the Infrastructure Account to fund Roads and, separately, Water (both as defined in the Establishment Agreement), and the amount of Pledged Revenues disbursed from the Amenity Account to fund Amenities. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums herein required to pay the amounts due hereunder are hereby appropriated for that purpose, and said amounts for each year shall be included in the annual budget and the appropriation resolution or measures to be adopted or passed by the Board of the District in each year while any of the obligations herein authorized are outstanding and unpaid. No provisions of any constitution, statute, resolution or other order or measure enacted after the execution of this Agreement shall in any manner be construed as limiting or impairing the obligation of the District to levy ad valorem property taxes, or as limiting or impairing the obligation of the District to levy, administer, enforce and collect the ad valorem property taxes as provided herein for the payment of the obligations hereunder. Furthermore, the District acknowledges that purchasers and credit enhancers of the Developer Revenue Obligations and the Revenue Bonds may incur costs and expenses, and will have otherwised purchased or provided credit enhancement for the Developer Revenue Obligations and Revenue Bonds, in reliance upon the promise of the District to impose the • Required Mill Levy and pay the Pledged Revenues generated therefrom to the Authority in accordance with this Agreement and, as a result, such parties shall be entitled to rely on the 10 4812-8340 5316453165 • payment obligations of the District to the Authority contained hereunder. Accordingly, it is acknowledged by the parties hereto that the purpose of this Section 2.06 is to ensure that the Authority receives all payments due herein in a timely manner in order to provide for the payment of amounts due to such parties. Section 2.07. Limited Defenses; Specific Performance. It is understood and agreed by the District that its obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated herein, and so long as any obligation of the District hereunder remains unfulfilled, the District agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim, estoppel, or other defenses to its Payment Obligation, or take or fail to take any action which would delay a payment to the Authority or the Authority's ability to receive payments due hereunder. Notwithstanding that this Agreement specifically prohibits and limits defenses and claims of the District, in the event that the District believes that it has valid defenses, setoffs, counterclaims, or other claims other than specifically permitted by this Agreement, it shall, nevertheless, make all payments as described herein and then may attempt or seek to recover such payments by actions at law or in equity for damages or specific performance, respectively. Section 2.08. Future Exclusion of Property. The parties agree that this Agreement constitutes "indebtedness" as contemplated by Section 32-1-503, C.R.S. Any property excluded from the District after the date hereof is to remain liable for the imposition of the Required Mill Levy and payment of the proceeds thereof in accordance with the provisions hereof, to the same extent as such property otherwise remains liable for the debt of the District, as provided in • Section 32-1-503, C.R.S.. In the event that any order providing for the exclusion of property from the District does not so provide and specifically indicate the liability of such excluded property for the obligations set forth herein, the Authority and the District hereby agree to take all actions reasonably necessary to cause the property owners of such proposed excluded property to covenant to assume all responsibilities under this Agreement, which covenants shall run with the land and shall be in a form satisfactory to the Authority. Section 2.09. Future Debt of the District. (a) The parties acknowledge that, in accordance with the Establishment Agreement, the District may issue Revenue Bonds or enter into Developer Revenue Obligations for the purpose of funding Actual Capital Costs relating to Infrastructure and, with the consent of the Authority, Amenities, which Revenue Bonds and Developer Revenue Obligations are intended to be payable from Pledged Revenues assigned to the District pursuant to an Assignment Agreement, which are otherwise required, in accordance with this Agreement, to be paid to the Authority and deposited into the Infrastructure Account and Amenity Account, as applicable. The parties also acknowledge that, as contemplated by the Establishment Agreement, the Authority and the District expect to enter into Subsequent Pledge Agreements, the first of which is intended to refund in full the Payment Obligation of the District hereunder. (b) The District agrees that it will not issue or incur bonds, notes, or other • obligations payable in whole or in part from, or constituting a lien upon, the general ad valorem taxes of District or payable from any other revenues of the District or otherwise 11 4812-8340 5316.4$3 LG,i • constituting indebtedness (whether or not subject to annual appropriation), other than Subsequent Pledge Agreements, Revenue Bonds and Developer Revenue Obligations issued in compliance with the Establishment Agreement and this Agreement. (c) Notwithstanding the provisions of Section 2.05(c) hereof, the District and the Authority may enter into an Assignment Agreement providing that all or any portion of the Pledged Revenues payable hereunder and required to be deposited into the Infrastructure Account and Amenity Account shall, instead, be disbursed by the District to a trustee or paying agent or to the Developer, for payment of Revenue Bonds and/or Developer Revenue Obligations, in which case the provisions of such Assignment Agreement shall control. Notwithstanding the foregoing, any Assignment Agreement shall provide that the portions of such Pledged Revenues that would otherwise be applied, in accordance with the Establishment Agreement, to costs of Amenities or Infrastructure, shall be applied to the payment of Revenue Bonds or Developer Revenue Obligations funding Amenities or Infrastructure, respectively. In no event shall an Assignment Agreement abrogate the intended allocation of Pledged Revenues between costs of Amenities and Infrastructure, as provided in the Establishment Agreement. (d) [The Authority hereby agrees to cooperate in the amendment of this Pledge Agreement to modify the definition of Required Mill Levy if necessary, in the determination of the District, to facilitate the issuance of Revenue Bonds by the District.] (e) Notwithstanding any other provision of this Agreement, the District shall • not impose, in accordance with a Subsequent Pledge Agreement or any other agreement, in any given year, an aggregate debt service and capital mill levy in excess of 50 mills (adjusted for changes in the method of calculating assessed valuation in the same manner, and to the extent permitted, as provided in the definition of"Required Mill Levy" herein) less the O&M Mill Levy required to be imposed in such year. (f) At least once a year as required by applicable state law, the District will cause an audit to be performed of the records relating to revenues and expenditures of the District. In addition, at least once a year as required by applicable state law, the District will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places, time, and manner as required by applicable state law. Section 2.10. Representations and Warranties of the District. The District hereby makes the following representations and warranties: (a) The District is a quasi-municipal corporation and political subdivision duly organized and validly existing under the laws of the State of Colorado. (b) The District has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The District's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. • (c) The District is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could 12 4812-8340 5316 45316 5 • reasonably be expected to materially adversely affect the ability of the District to perform its obligations hereunder. The execution, delivery and performance by the District of this Pledge Agreement (i)will not violate any provision of any applicable law or regulation or of any order, writ,judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the District in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the District pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the District is a party or which purports to be binding upon the District or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. (d) The District has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the District of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the District is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the District threatened, in connection with any of the transactions contemplated by this Pledge • Agreement nor, to the best knowledge of the District is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the District to perform its obligations under, this Pledge Agreement. (1) This Pledge Agreement constitutes the legal, valid, and binding obligation of the District, enforceable against the District in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). Section 2.11. Representations and Warranties of the Authority. The Authority hereby makes the following representations and warranties: (a) The Authority is a separate legal entity duly organized and validly existing under the laws of the State of Colorado. (b) The Authority has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The Authority's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The Authority is not in violation of any of the applicable provisions of law • or any order of any court having jurisdiction in the matter, which violation could 13 4812-8340 5316 45316 5 • reasonably be expected to materially adversely affect the ability of the Authority to perform its obligations hereunder. The execution, delivery and performance by the Authority of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the Authority in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the Authority pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the Authority is a party or which purports to be binding upon the Authority or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. (d) The Authority has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the Authority of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the Authority is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the • Authority threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the Authority is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the Authority to perform its obligations under, this Pledge Agreement. (f) This Pledge Agreement constitutes the legal, valid, and binding obligation of the Authority, enforceable against the Authority in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). ARTICLE III EVENTS OF DEFAULT AND REMEDIES Section 3.01. Events of Default. The occurrence or existence of any one or more of the following events shall be an "Event of Default" hereunder, and there shall be no default or Event of Default hereunder except as provided in this Section: (a) The District fails or refuses to impose the Required Mill Levy or to remit • the Pledged Revenues, as required by the terms of this Pledge Agreement and subject to Section 2.09 hereof; 14 4812-8340 5316453165 • (b) any representation or warranty made by any party in this Pledge Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other party; (c) any party fails in the performance of any other of its covenants in this Pledge Agreement, and such failure continues for sixty (60) days after written notice specifying such default and requiring the same to be remedied is given to any of the parties hereto; or (d) (i) any party shall commence any case, proceeding, or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, or other similar official for itself or for any substantial part of its property, or any party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any party any case, proceeding, or other action of a nature referred to in clause (i) and the same shall remain not dismissed within ninety (90) days following the date of filing; or (iii) there shall be commenced against any party any case, proceeding, or other action seeking issuance of a warrant of attachment, execution, distraint, or similar process against all or any substantial part of its property which results • in the entry of an order for any such relief which shall not have been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from the entry thereof, or (iv) any party shall take action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) any party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due. Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance of an Event of Default, any party may proceed to protect and enforce its rights against the party or parties causing the Event of Default by mandamus or such other suit, action, but solely for the purpose of seeking specific performance. ARTICLE IV MISCELLANEOUS Section 4.01. Pledge of Pledged Revenues. The creation, perfection, enforcement, and priority of the pledge of revenues to secure or pay the Payment Obligation shall be governed by Section 11-57-208 of the Supplemental Act and this Pledge Agreement. The Pledged Revenues shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the District irrespective of • whether such persons have notice of such liens. 15 4812-8340 5316481165 • Section 4.02. No Recourse against Officers and Agents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the Boards of Directors of the District or the Authority, or any officer or agent of the District or Authority acts in good faith, no civil recourse shall be available against such member, officer, or agent for, with respect to the District, payment of the Payment Obligation or, with respect to the Authority, provision of the Public Improvements. Such recourse shall not be available either directly or indirectly through the Authority or the District, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of this Pledge Agreement and as a part of the consideration hereof, the Authority and the District each specifically waives any such recourse. Section 4.03. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental Act, this Pledge Agreement contains a recital that it is issued pursuant to certain provisions of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity of this Pledge Agreement after its delivery for value. Section 4.04. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization, execution, or delivery of this Pledge Agreement shall be commenced more than thirty days after the authorization of this Pledge Agreement. Section 4.05. Notices. Except as otherwise provided herein, all notices or payments required to be given under this Agreement shall be in writing and shall be hand delivered or sent • by certified mail, return receipt requested, or air freight,to the following addresses: If to District: With copies to: If to the Authority: With copies to: All notices or documents delivered or required to be delivered under the provisions of this Agreement shall be deemed received one (1) day after hand delivery or three (3) days after mailing. Either party by written notice so provided may change the address to which future notices shall be sent. Section 4.06. Miscellaneous. (a) This Pledge Agreement and the Establishment Agreement constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Pledge Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Pledge • Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. In the event of any conflict between provisions of this Pledge 16 4812-8340 5316453165 • Agreement and any other agreement between the District and the Authority, provisions of this Pledge Agreement shall control. No party has been induced to enter into this Pledge Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment, or warranty outside those expressly set forth in this Pledge Agreement. (b) If any term or provision of this Pledge Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge Agreement is stricken in accordance with the provisions hereof, then such stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. (c) It is intended that there be no third party beneficiaries of this Pledge Agreement, other than the Bondholders (if any), District No. 1 and the Developer. (d) This Pledge Agreement may not be assigned or transferred by any party without the prior written consent of each of the other parties. (e) This Pledge Agreement shall be governed by and construed under the applicable laws of the State of Colorado. • (f) Venue for any and all claims brought by either Party to enforce any provision of this Agreement shall be the District Court in and for the County of Weld, State of Colorado. (g) This Pledge Agreement may be amended or supplemented by the parties, but any such amendment or supplement must be in writing and must be executed by all parties. (h) If the date for making any payment or performing any action hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed. (i) Each party has participated fully in the review and revision of this Pledge Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Pledge Agreement. The language in this Pledge Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. (j) This Pledge Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. • 17 4812-8340 5316453165 • Section 4.07. Effective Date and Termination Date. This Agreement shall become effective on the Effective Date, and shall remain in effect until the Termination Date. [Signatures appear on following page.] • 18 4812-8340 5316.45316 5 • IN WITNESS WHEREOF, the District and the Authority have executed this Agreement as of the day and year first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary BEEBE DRAW FARMS AUTHORITY By: • President ATTEST: Secretary • 19 4812-8340 5316 45116 5 • Document comparison done by DeltaView on Monday, December 21, 2009 12:25:23 PM Wh Document 1 WORLDOX://VVAClients\1012\emailirA00158261.DOC Document 2 WORLDOX:/NV:\Clients\1012\emailin\00160978.DOC Rendering set Standard Lag�tld: Insertion Deletion nom Moved to Style change Format change Moved deletion Inserted cell r Ia 4 "" x ' Deleted cell Moved cell Split/Merged cell Padding cell • SCat[ tics: Count Insertions 4 Deletions 4 Moved from 0 Moved to 0 Style change 0 Format chapged 0 Total changes 8 • DRAFT: 1-1112/18/09 • DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT ( FIRST EXCLUSION) This DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT (FIRST EXCLUSION) (the "Agreement" or "Pledge Agreement"), is made and entered into and dated as of , 20 by and between BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 (the "District"), a quasi-municipal corporation and political subdivision of the State of Colorado and BEEBE DRAW FARMS AUTHORITY (the "Authority"), a separate legal entity. All capitalized terms used herein and not otherwise defined shall have the meanings assigned them in Article I hereof. RECITALS WHEREAS, the District and Beebe Draw Farms Metropolitan District No. 1 ("District No. 1" and, together with the District, the "Districts") are special mtropolitan districts organized pursuant to Section 32-1-101, C.R.S. et seq. and operate in accordance with a Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010 (the "Service Plan"); and WHEREAS, pursuant to the Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Districts may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for • the sharing of costs, the imposition and collection of taxes, and the incurring of debt; and WHEREAS, the Service Plan discloses and establishes the necessity for, and desirability of an intergovernmental agreement between the Districts concerning the financing, construction, operation and maintenance of Public Improvements (hereinafter defined) contemplated in the Service Plan and concerning the provision of essential services in the community to be served by the Districts; and WHEREAS, in furtherance of the foregoing, and as permitted by Section 29-1-203(4), C.R.S., the Authority was established pursuant to a Beebe Draw Farms Authority Establishment Agreement dated as of _, 2010, between the Districts (the "Establishment Agreement"); and WHEREAS, the Establishment Agreement created the Authority and sets forth an overall plan for financing, construction, ownership, operation and maintenance of the Public Improvements agreed upon by the Districts and intended to facilitate the provision of such Public Improvements in a timely and efficient manner, and to allocate the costs thereof equitably among the users of such Public Improvements, through cooperation among the Authority and the Districts; and WHEREAS, in accordance with the Service Plan and Establishment Agreement, the District and the Authority anticipate that the District may issue, from time to time, revenue bonds (as more particularly defined herein, the "Revenue Bonds") for the purpose of funding the • Actual Capital Costs (defined herein); and EXHIBIT 4842-s9ss 2197 Q197 sI I (y of 5 , ► raw • WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority have previously entered into an Initial District No. 2 Capital Pledge Agreement dated _, 20_ (the "Initial Pledge Agreement") to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided therein; and WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority now desire to enter into this District No. 2 Capital Pledge Agreement (First Exclusion) for the purpose of refunding in full the Payment Obligation represented by the Initial Pledge Agreement, and continuing to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided herein; and WHEREAS, at an election of the qualified electors of the District duly called for and held on May 4, 2010 (the "Election"), in accordance with law and pursuant to due notice, a majority of eligible electors who voted at such election voted in favor of the issuance of general obligation indebtedness and the imposition of taxes for the payment thereof, for the purpose of funding certain improvements and facilities, including the Public Improvements, as follows: Authorization Purpose Total Streets Water • Parks and Recreation WHEREAS, the District has allocated to the Election all of the indebtedness represented by the Initial Pledge Agreement, based upon the Principal Portion of the Payment Obligations thereunder (as defined herein), and the anticipated uses of the Pledged Revenues generated thereunder and payable to the Authority, as follows: Allocation of Initial Pledge Agreement to Election Principal Amount of Principal Amount of Purpose Authorization Used Authorization Remainin Streets Water Parks and Recreation WHEREAS, District is entering into this Agreement for the purpose of refunding in full its Payment Obligation under the Initial Pledge Agreement and the Principal Portion of the Payment Obligation represented by this Agreement bears interest at a rate that is lower than the rate of interest borne by the Principal Portion of the Payment Obligation represented by the Initial Pledge Agreement and, as a result, no additional electoral authorization is required with respect to this Agreement; and [NEED TO ENSURE RATES ARE SET TO ALLOW THIS, • ADD ALLOCATION OF PRINCIPAL, IF ANY, IN EXCESS OF ORIGINAL AGREEMENT] 2 4842-8935 2197421975 • WHEREAS, the District has determined and hereby determines that the execution of this Pledge Agreement, to facilitate the purposes of this Pledge Agreement and the Establishment Agreement, and the provision of the Public Improvements are in the best interests of the District and the residents, property owners, and taxpayers thereof and that the financing plan set forth in the Establishment Agreement and implemented, in part, through the execution and delivery of this Pledge Agreement is necessary for the timely and efficient provisions of the Public Improvements and equitable allocation of the costs thereof among the users of the Public Improvements; and WHEREAS, all amendments to this Agreement made pursuant hereto and not in conflict with the ballot questions, the Service Plan or the Establishment Agreement, which authorized the debt represented by this Agreement, shall be deemed part of this Agreement and fully authorized by such ballot questions. COVENANTS NOW, THEREFORE, for and in consideration of the promises and the mutual covenants and stipulations herein, the parties hereby agree as follows: ARTICLE I DEFINITIONS • Section 1.01. Interpretation. In this Agreement, unless the context expressly indicates otherwise, the words defined below shall have the meanings set forth below: (a) The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms, refer to this Agreement as a whole and not to any particular article, section, or subdivision hereof; the term "heretofore" means before the date of execution of the Agreement; and the term "hereafter"means after the date of execution of this Agreement. (b) All definitions, terms, and words shall include both the singular and the plural, and all capitalized words or terms shall have the definitions set forth in Section 1.02 hereof. (c) Words of the masculine gender include correlative words of the feminine and neuter genders, and words importing the singular number include the plural number and vice versa. (d) The captions or headings of this Agreement are for convenience only, and in no way define, limit, or describe the scope or intent of any provision, article, or section of this Agreement. (e) All schedules, exhibits, and addenda referred to herein are incorporated herein by this reference. • Section 1.02. Definitions. As used herein, unless the context expressly indicates otherwise, the words defined below and capitalized throughout the text of this Agreement shall 3 4842-8935 2197.47197 5 • have the respective meanings set forth below. Capitalized terms used and not otherwise defined (including but not limited to Actual Capital Costs, Amenities, Amenity Account, Infrastructure, Infrastructure Account and Required O&M Mill Levy) shall have the meanings assigned them in the Establishment Agreement. (a) "Agreement" or "Pledge Agreement" shall mean this Agreement and any amendment hereto made in accordance herewith. (b) "Authority" means Beebe Draw Farms Authority, formed pursuant to the Establishment Agreement. (c) "Assignment Agreement" shall mean any agreement entered into between the Authority and the District that provides for the assignment by the Authority to the District of a specified portion of Pledged Revenues deposited in, or to be deposited in, the Infrastructure Account or Amenity Account in accordance with this Pledge Agreement and the Establishment Agreement, which Assignment Agreement is intended to secure payment of Revenue Bonds and/or Developer Revenue Obligations of the District. (d) "Board" or "Boards" shall mean the lawfully organized Boards of Directors of the Districts. (e) "Board of County Commissioners" shall mean the Board of County Commissioners for Weld County, Colorado. • (f) "Bond Documents" shall mean any resolution, indenture, reimbursement agreement or other agreement entered into or adopted by the District in connection with the issuance of Revenue Bonds. (g) "Bondholder" means the beneficial owner of any Revenue Bond. (h) "Developer" shall have the meaning assigned it in the Establishment Agreement. (i) "Developer Revenue Obligations" shall mean notes, bonds or other indebtedness issued by the District and payable to the Developer for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement. (j) "Development Fees" shall have the meaning assigned it in the Establishment Agreement. (k) "District" shall mean Beebe Draw Farms Metropolitan District No. 2. (1) "District No. 1" shall mean Beebe Draw Farms Metropolitan District No. 1. • (m) "Effective Date" shall mean _, 20 . 4 4842-8935 2197.47197 5 • (n) "Establishment Agreement" means the Beebe Draw Farms Authority Establishment Agreement dated , 2010, between the District and District No. 1. (o) "Maximum Annual Limited Receipts" shall mean, for any particular calendar year, the dollar amount that would result from the imposition of an ad valorem property tax levy of 50 mills (without adjustment) on the final certified assessed valuation of the District, as certified to the District by the County Assessor on the immediately preceding December 10. (p) "Mill Levy Certification Date" means December 10 of each year, on or prior to which date an ad valorem property tax levy is required to be certified to the County Board in accordance with Section 2.04 hereof and state law. (q) "1998 Bond Mill Levy" means, for any particular Mill Levy Certification Date, the ad valorem property tax levy required to be imposed upon property within the boundaries of District No. 1 for the payment of the debt service costs (including principal, interest, mandatory redemption price, trustee and paying agent fees) for the General Obligation Bonds, Series 1998 issued by District No. 1. (r) "Payment Obligation" shall mean the District's obligation to pay the Actual Capital Costs in accordance with the provisions hereof, but solely from Pledged Revenues, to the extent available. • (s) "Pledged Revenues" means, collectively, Property Tax Revenues, Specific Ownership Tax Revenues, and Development Fees. (t) "Principal Portion" means an amount equal to $ , representing the principal component of the Payment Obligation hereunder. (u) "Property Tax Revenues" means all moneys derived from imposition of the Required Mill Levy by the District, but excluding Specific Ownership Tax Revenues. (v) "Public Improvements" means, collectively, Infrastructure and Amenities, as more particularly defined in the Establishment Agreement. (w) "Required Mill Levy" means, with respect to any particular Mill Levy Certification Date, an ad valorem mill levy (a mill being equal to 1/10 of 1 cent) imposed upon all taxable property of the District each year, commencing in tax levy year 20_ (tax collection year 20 ), in an amount equal to 50 mills less the 1998 Bond Mill Levy for such Mill Levy Certification Date, and less the Required O&M Mill Levy for such Mill Levy Certification Date; provided that: (i) in the event the method of calculating assessed valuation is changed after the date hereof, the 50 mills described above will be increased or decreased to reflect such changes, such increases or decreases to be determined by the District in good faith (such determination to be binding and final) so that to • the extent possible, the actual tax revenues generated by the mill levy, as adjusted, are neither diminished nor enhanced as a result of such changes. For purposes of 5 4842-8935 2197421975 • the foregoing, a change in the ratio of actual valuation to assessed valuation shall be deemed to be a change in the method of calculating assessed valuation; and (ii) notwithstanding anything herein to the contrary, in no event shall the Required Mill Levy exceed 50 mills, except under the circumstances set forth in Section 2.03(b) hereof, and subject to the limitations set forth therein, and, in the event that the Required Mill Levy as calculated pursuant to the foregoing would exceed 50 mills and Section 2.03(b) is not applicable, then the Required Mill Levy shall be reduced to equal 50 mills; and (iii) notwithstanding anything herein to the contrary, in no event may the Required Mill Levy be established at a mill levy rate which would cause the District to derive tax revenue in any year in excess of the maximum tax increases permitted by the District's electoral authorization, and if the Required Mill Levy as calculated pursuant to the foregoing would cause the amount of taxes collected in any year to exceed the maximum tax increase permitted by the District's electoral authorization, the Required Mill Levy shall be reduced to the point that such maximum tax increase is not exceeded. (x) "Revenue Bonds" shall mean notes, bonds or other indebtedness issued by the District for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement, excluding Developer Revenue Obligations. • (y) "Service Plan" shall mean the Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010. (z) "Specific Ownership Tax Revenues" shall mean the specific ownership taxes remitted to the District pursuant to Section 42-3-107, C.R.S., or any successor statute, as a result of its imposition of the Required Mill Levy. (aa) "Subsequent Pledge Agreements" means pledge agreements entered into between the District and the Authority subsequent to the date hereof providing for the imposition of ad valorem property taxes by the District and payment of the proceeds thereof to the Authority, as contemplated by the Establishment Agreement. (bb) "Supplemental Act" means the "Supplemental Public Securities Act," being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended. (cc) "Termination Date" shall mean , 20_ (i.e., the imposition of taxes hereunder shall not be made after tax levy year 20_ and such taxes shall not be collected after tax collection year 20 ) [REFLECT 40 YEAR TERM]. • 6 4842-8935 2197 17197 5 • ARTICLE II PAYMENT OBLIGATION Section 2.01. No Additional Electoral Approval Required. The authorization for issuance of debt, fiscal year spending, revenue collections and other constitutional matters requiring voter approval for purposes of this Agreement, was approved at an election held for the District on May 4, 2010, in accordance with law and pursuant to due notice. The performance of the terms of this Agreement requires no further electoral approval. Section 2.02. Funding of Actual Capital Costs Generally. (a) In exchange for the Authority's agreement to provide for the acquisition, construction, improvement and equipping of the Amenities and the Infrastructure, in accordance with the Establishment Agreement and as more particularly provided in Section 2.05(c) below, and in exchange for the purchase by any Bondholder of Revenue Bonds (if any) issued to fund Actual Capital Costs and payable from Pledged Revenues generated hereunder, the District hereby agrees to pay to the Authority for the payment of Actual Capital Costs, but solely from the sources specified herein, the amount of $ , plus interest thereon at the rate of % per annum (calculated in accordance with subparagraph (b) hereof), or such lesser amount as may be funded from the Pledged Revenues (the "Payment Obligation"). • (b) Interest shall accrue on the outstanding balance of the Principal Portion of the Payment Obligation (initially $ ) at the rate of % per annum, and shall be calculated monthly based upon the outstanding Principal Portion as of the end of each month. Accrued but unpaid interest shall netcompoundsemi-annually on each June 1 and December 1, commencing on the first June 1 or December 1 (whichever is the earliest)to occur after the date of execution of this Agreement. (c) Pledged Revenues received by the Authority (including any amounts payable to the Authority but assigned to the District in accordance with any Assignment Agreement) shall be applied, first, to the payment of accrued interest and, second, to the outstanding principal balance of the Payment Obligation. (d) The Payment Obligation constitutes a limited tax obligation of the District payable solely from and to the extent of the Pledged Revenues. The Pledged Revenues are hereby pledged by the District to the Authority (and, to the extent of any Bondholders, for the benefit of such Bondholders), for the payment of Actual Capital Costs in accordance with the provisions hereof. The Payment Obligation shall constitute an irrevocable lien upon the Pledged Revenues. The District hereby elects to apply all of the provisions of the Supplemental Act to this Pledge Agreement and the Payment Obligation. Section 2.03. Limitations on Payment Obligation. • (a) In no event shall the total or annual obligations of the District hereunder exceed the maximum amounts permitted under its electoral authority and any other 7 4842-8935 219742197 5 • applicable law. The entire Payment Obligation will be deemed defeased and no longer outstanding upon the earlier of: (i) the payment by the District of such amount; or (ii) the Termination Date. (b) In accordance with the definition of Required Mill Levy set forth in Section 1.02 hereof, the Required Mill Levy may not exceed 50 mills, except as specifically provided in this Section 2.03(b). In the event that, for the purpose of funding Actual Capital Costs, the District determines to issue Revenue Bonds and, in connection therewith, enters into an Assignment Agreement with the Authority relating to revenues payable hereunder for the purpose of providing for the payment of such Revenue Bonds, if and only if such Revenue Bonds satisfy the conditions of Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S. (the satisfaction of which shall be determined by the District and stated in the applicable Assignment Agreement) then so long as such Revenue Bonds are outstanding, the following provisions shall apply: (i) subparagraph (ii) of the definition of Required Mill Levy shall not apply; and (ii) in no event shall the District receive in any year under any Assignment Agreement for the payment of Revenue Bonds which do not satisfy Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S., or under any Assignment Agreement for the payment of a Developer Revenue Obligation, Property Tax Revenues and Specific Ownership Tax Revenues resulting from the imposition of • the Required Mill Levy by the District in excess of the Maximum Annual Limited Receipts for such year; and (iii) In no event shall the Authority retain in any year, after the payment (or retention by the District) of any amounts due to the District in accordance with an Assignment Agreement, revenues resulting from the imposition by the District of the Required Mill Levy (whether Property Tax Revenues or Specific Ownership Tax Revenues) in excess of the Maximum Annual Limited Receipts for such year. Any amounts in excess thereof shall [be deducted by the District from the amount of Property Tax Revenues otherwise payable to the Authority] in the succeeding year, and shall be applied by the District to any lawful purpose. Notwithstanding any of the foregoing, this paragraph shall not operate to modify or limit any amounts payable by the District to the Authority in accordance with any other agreements between the District and the Authority or the Establishment Agreement, including the obligation of the District to pay proceeds of the Required O&M Mill Levy to the Authority in accordance with the Establishment Agreement. Section 2.04. Imposition of Required Mill Levy. (a) In order to fund the Payment Obligation, the District agrees to levy on all of the taxable property of the District, in addition to all other taxes, direct annual taxes in tax levy year 20_(tax collection year 20 ), and in each year thereafter (but in no event • after the Termination Date), in the amount of the Required Mill Levy. Nothing herein 8 4842-8935 219742197 5 • shall be construed to require the District to impose an ad valorem property tax levy for the payment of the Payment Obligation in excess of the Required Mill Levy or after the Termination Date. (b) The parties hereto acknowledge that Article 5 of the Establishment Agreement sets forth a process by which the Authority will develop and submit to the Districts an annual operating budget. In order to facilitate the determination of the Required Mill Levy by the District, the Authority shall provide to the District, the preliminary and final Required O&M Mill Levy and the 1998 Bonds Mill Levy for the immediately succeeding Mill Levy Certification Date, in the time and manner set forth in the Establishment Agreement. (c) No later than December 5 of each year, the District shall provide written notice to the Authority of the Required Mill Levy that the District intends to certify on the immediately succeeding Mill Levy Certification Date, and the District shall certify the same on or before December 10 unless notified by the Authority that the Required Mill Levy as determined by the District is not in compliance with the requirements of this Agreement. (d) The District acknowledges that it has actively participated in the development of the plan to finance Actual Capital Costs as set forth in the Establishment Agreement and herein, including the calculation of the Required Mill Levy as set forth herein, that such calculation is designed to correlate to the benefit to the District of the • Public Improvements financed by the Pledged Revenues (and, Revenue Bonds, if any) and that the calculation of the Required Mill Levy in accordance with the foregoing and obligation of the District to impose the same in each year during the term of this Agreement shall be final and binding upon the District. (e) This Section 2.04 is hereby declared to be the certificate of the District to the Board of County Commissioners indicating the aggregate amount of taxes to be levied for the purposes of paying the Payment Obligation due hereunder. (t) It shall be the duty of the District annually at the time and in the manner provided by law for the levying of the District's taxes, if such action shall be necessary to effectuate the provisions of this Agreement, to ratify and carry out the provisions hereof with reference to the levy and collection of the ad valorem property taxes herein specified, and to require the officers of the District to cause the appropriate officials of Weld County, to levy, extend and collect said ad valorem taxes in the manner provided by law for the purpose of providing funds for the payment of the amounts to be paid hereunder promptly as the same, respectively, become due. Said taxes, when collected, shall be applied only to the payment of the amounts to be paid hereunder. (g) Said taxes shall be levied, assessed, collected, and enforced at the time and in the form and manner and with like interest and penalties as other general taxes in the State of Colorado. • 9 4842-8935 2197 4219.15 • (h) The District shall pursue all reasonable remedies to collect, or cause the collection of, delinquent ad valorem taxes within its boundaries. Section 2.05. Payment and Application of Revenues. (a) Subject to Section 2.09 hereof, the District hereby agrees to remit to the Authority [as soon as practicable upon receipt], all revenues comprising Pledged Revenues. (b) All amounts payable by the District hereunder shall be paid in lawful money of the United States of America by check mailed or delivered, or by wire transfer, to the Authority (or at the direction of Authority, any other entity in accordance with applicable Bond Documents). (c) The Authority hereby agrees that, subject to Section 2.09, the Authority shall promptly deposit all Pledged Revenues received by it in accordance with this Agreement into the Infrastructure Account or the Amenity Account established under the Establishment Agreement and shall cause the same to be applied to Actual Capital Costs relating to Infrastructure or Amenities, respectively, as more particularly provided in the Establishment Agreement; provided, however, that, notwithstanding the foregoing, the Pledged Revenues may be directly deposited by the District into the Infrastructure Account or Amenity Account, as directed by the Authority and in accordance with the Establishment Agreement. Without limiting the foregoing, the Authority hereby agrees • to undertake and diligently pursue the provision of Public Improvements in accordance with the Establishment Agreement, to the extent funding is available therefor from the Pledged Revenues payable hereunder. The Authority and the District acknowledge that the Establishment Agreement, including the provisions thereof relating to the deposit and use of moneys in the Infrastructure Account and Amenity Account, may not be amended or modified in any way without the prior written consent of the District. (d) The Authority shall provide to the District, not less than 180 days after the end of each fiscal year, a report indicating, separately, the amounts of Property Tax Revenues, Specific Ownership Tax Revenues and Development Fees received by the Authority and deposited into the Infrastructure Account and Amenity Account. Such report shall also provide the amount of Pledged Revenues disbursed from the Infrastructure Account to fund Roads and, separately, Water (both as defined in the Establishment Agreement), and the amount of Pledged Revenues disbursed from the Amenity Account to fund Amenities. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums herein required to pay the amounts due hereunder are hereby appropriated for that purpose, and said amounts for each year shall be included in the annual budget and the appropriation resolution or measures to be adopted or passed by the Board of the District in each year while any of the obligations herein authorized are outstanding and unpaid. No provisions of any constitution, statute, resolution or other order or measure enacted after the execution of this • Agreement shall in any manner be construed as limiting or impairing the obligation of the District to levy ad valorem property taxes, or as limiting or impairing the obligation of the 10 4842-8935 2197.47197 5 • District to levy, administer, enforce and collect the ad valorem property taxes as provided herein for the payment of the obligations hereunder. Furthermore, the District acknowledges that purchasers and credit enhancers of the Developer Revenue Obligations and the Revenue Bonds may incur costs and expenses, and will have otherwised purchased or provided credit enhancement for the Developer Revenue Obligations and Revenue Bonds, in reliance upon the promise of the District to impose the Required Mill Levy and pay the Pledged Revenues generated therefrom to the Authority in accordance with this Agreement and, as a result, such parties shall be entitled to rely on the payment obligations of the District to the Authority contained hereunder. Accordingly, it is acknowledged by the parties hereto that the purpose of this Section 2.06 is to ensure that the Authority receives all payments due herein in a timely manner in order to provide for the payment of amounts due to such parties. Section 2.07. Limited Defenses; Specific Performance. It is understood and agreed by the District that its obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated herein, and so long as any obligation of the District hereunder remains unfulfilled, the District agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim, estoppel, or other defenses to its Payment Obligation, or take or fail to take any action which would delay a payment to the Authority or the Authority's ability to receive payments due hereunder. Notwithstanding that this Agreement specifically prohibits and limits defenses and claims of the District, in the event that the District believes that it has valid defenses, setoffs, counterclaims, or other claims other • than specifically permitted by this Agreement, it shall, nevertheless, make all payments as described herein and then may attempt or seek to recover such payments by actions at law or in equity for damages or specific performance, respectively. Section 2.08. Future Exclusion of Property. The parties agree that this Agreement constitutes "indebtedness" as contemplated by Section 32-1-503, C.R.S. Any property excluded from the District after the date hereof is to remain liable for the imposition of the Required Mill Levy and payment of the proceeds thereof in accordance with the provisions hereof, to the same extent as such property otherwise remains liable for the debt of the District, as provided in Section 32-1-503, C.R.S.. In the event that any order providing for the exclusion of property from the District does not so provide and specifically indicate the liability of such excluded property for the obligations set forth herein, the Authority and the District hereby agree to take all actions reasonably necessary to cause the property owners of such proposed excluded property to covenant to assume all responsibilities under this Agreement, which covenants shall run with the land and shall be in a form satisfactory to the Authority. Section 2.09. Future Debt of the District. (a) The parties acknowledge that, in accordance with the Establishment Agreement, the District may issue Revenue Bonds or enter into Developer Revenue Obligations for the purpose of funding Actual Capital Costs relating to Infrastructure and, with the consent of the Authority, Amenities, which Revenue Bonds and Developer • Revenue Obligations are intended to be payable from Pledged Revenues assigned to the District pursuant to an Assignment Agreement, which are otherwise required, in 11 4842-8935 2197421975 • accordance with this Agreement, to be paid to the Authority and deposited into the Infrastructure Account and Amenity Account, as applicable. The parties also acknowledge that, as contemplated by the Establishment Agreement, the Authority and the District expect to enter into Subsequent Pledge Agreements. (b) The District agrees that it will not issue or incur bonds, notes, or other obligations payable in whole or in part from, or constituting a lien upon, the general ad valorem taxes of District or payable from any other revenues of the District or otherwise constituting indebtedness (whether or not subject to annual appropriation), other than Subsequent Pledge Agreements, Revenue Bonds and Developer Revenue Obligations issued in compliance with the Establishment Agreement and this Agreement. (c) Notwithstanding the provisions of Section 2.05(c) hereof, the District and the Authority may enter into an Assignment Agreement providing that all or any portion of the Pledged Revenues payable hereunder and required to be deposited into the Infrastructure Account and Amenity Account shall, instead, be disbursed by the District to a trustee or paying agent or to the Developer, for payment of Revenue Bonds and/or Developer Revenue Obligations, in which case the provisions of such Assignment Agreement shall control. Notwithstanding the foregoing, any Assignment Agreement shall provide that the portions of such Pledged Revenues that would otherwise be applied, in accordance with the Establishment Agreement, to costs of Amenities or Infrastructure, shall be applied to the payment of Revenue Bonds or Developer Revenue Obligations funding Amenities or Infrastructure, respectively. In no event shall an Assignment • Agreement abrogate the intended allocation of Pledged Revenues between costs of Amenities and Infrastructure, as provided in the Establishment Agreement. (d) [The Authority hereby agrees to cooperate in the amendment of this Pledge Agreement to modify the definition of Required Mill Levy if necessary, in the determination of the District, to facilitate the issuance of Revenue Bonds by the District.] (e) Notwithstanding any other provision of this Agreement, the District shall not impose, in accordance with a Subsequent Pledge Agreement or any other agreement, in any given year, an aggregate debt service and capital mill levy in excess of 50 mills (adjusted for changes in the method of calculating assessed valuation in the same manner, and to the extent permitted, as provided in the definition of"Required Mill Levy" herein) less the Required O&M Mill Levy required to be imposed in such year. (f) At least once a year as required by applicable state law, the District will cause an audit to be performed of the records relating to revenues and expenditures of the District. In addition, at least once a year as required by applicable state law, the District will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places, time, and manner as required by applicable state law. Section 2.10. Representations and Warranties of the District. The District hereby makes the following representations and warranties: 12 4842-8935 2197.47197 5 • (a) The District is a quasi-municipal corporation and political subdivision duly organized and validly existing under the laws of the State of Colorado. (b) The District has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The District's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The District is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the District to perform its obligations hereunder. The execution, delivery and performance by the District of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ,judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the District in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the District pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the District is a party or which purports to be binding upon the District or upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. • (d) The District has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the District of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the District is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the District threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the District is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the District to perform its obligations under, this Pledge Agreement. (0 This Pledge Agreement constitutes the legal, valid, and binding obligation of the District, enforceable against the District in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). Section 2.11. Representations and Warranties of the Authority. The Authority • hereby makes the following representations and warranties: 13 4842-8935 2197.47197 5 • (a) The Authority is a separate legal entity duly organized and validly existing under the laws of the State of Colorado. (b) The Authority has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The Authority's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The Authority is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the Authority to perform its obligations hereunder. The execution, delivery and performance by the Authority of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the Authority in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the Authority pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the Authority is a party or which purports to be binding upon the Authority or upon any of its revenues or other assets which could reasonably be expected to result in a • material adverse effect. (d) The Authority has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the Authority of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the Authority is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the Authority threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the Authority is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the Authority to perform its obligations under,this Pledge Agreement. (0 This Pledge Agreement constitutes the legal, valid, and binding obligation of the Authority, enforceable against the Authority in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). • 14 4842-8935 2197 42197 5 • ARTICLE III EVENTS OF DEFAULT AND REMEDIES Section 3.01. Events of Default. The occurrence or existence of any one or more of the following events shall be an "Event of Default" hereunder, and there shall be no default or Event of Default hereunder except as provided in this Section: (a) The District fails or refuses to impose the Required Mill Levy or to remit the Pledged Revenues, as required by the terms of this Pledge Agreement and subject to Section 2.09 hereof; (b) any representation or warranty made by any party in this Pledge Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Ply; (c) any party fails in the performance of any other of its covenants in this Pledge Agreement, and such failure continues for sixty (60) days after written notice specifying such default and requiring the same to be remedied is given to any of the parties hereto; or • (d) (i) any party shall commence any case, proceeding, or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, or other similar official for itself or for any substantial part of its property, or any party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any party any case, proceeding, or other action of a nature referred to in clause (i) and the same shall remain not dismissed within ninety (90) days following the date of filing; or (iii) there shall be commenced against any party any case, proceeding, or other action seeking issuance of a warrant of attachment, execution, distraint, or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from the entry thereof, or (iv) any party shall take action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) any party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due. Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance of an Event of Default, any party may proceed to protect and enforce its rights against the party or parties causing the Event of Default by mandamus or such other suit, action, but solely for the • purpose of seeking specific performance. 15 4842-8935 2197.47197 5 • ARTICLE IV MISCELLANEOUS Section 4.01. Pledge of Pledged Revenues. The creation, perfection, enforcement, and priority of the pledge of revenues to secure or pay the Payment Obligation shall be governed by Section 11-57-208 of the Supplemental Act and this Pledge Agreement. The Pledged Revenues shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the District irrespective of whether such persons have notice of such liens. Section 4.02. No Recourse against Officers and Agents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the Boards of Directors of the District or the Authority, or any officer or agent of the District or Authority acts in good faith, no civil recourse shall be available against such member, officer, or agent for, with respect to the District, payment of the Payment Obligation or, with respect to the Authority, provision of the Public Improvements. Such recourse shall not be available either directly or indirectly through the Authority or the District, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of this Pledge Agreement and as a part of the consideration hereof, the Authority and the District each specifically waives any such recourse. • Section 4.03. Refunding of Initial Pledge Agreement. As contemplated by the Establishment Agreement, the parties agree that this Agreement is entered into for the purpose of refunding in full all obligations of the District, including the Payment Obligation, under the Initial Pledge Agreement. The Authority agrees to accept delivery of this Agreement as payment in full of the Payment Obligation under the Initial Pledge Agreement, and agrees that the Initial Pledge Agreement is hereby cancelled and shall be of no further force and effect. Section 4.04. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental Act, this Pledge Agreement contains a recital that it is issued pursuant to certain provisions of the Supplemental Act, and such recital is conclusive evidence of the validity and the regularity of this Pledge Agreement after its delivery for value. Section 4.05. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization, execution, or delivery of this Pledge Agreement shall be commenced more than thirty days after the authorization of this Pledge Agreement. Section 4.06. Notices. Except as otherwise provided herein, all notices or payments required to be given under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, or air freight, to the following addresses: If to District: . With copies to: 16 4842-8935 2197"21914 • If to the Authority: With copies to: All notices or documents delivered or required to be delivered under the provisions of this Agreement shall be deemed received one (1) day after hand delivery or three (3) days after mailing. Either party by written notice so provided may change the address to which future notices shall be sent. Section 4.07. Miscellaneous. (a) This Pledge Agreement and the Establishment Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Pledge Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Pledge Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. In the event of any conflict between provisions of this Pledge Agreement and any other agreement between the District and the Authority, provisions of this Pledge Agreement shall control. No party has been induced to enter into this Pledge Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment, or warranty outside those expressly set forth in this Pledge Agreement. • (b) If any term or provision of this Pledge Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge Agreement is stricken in accordance with the provisions hereof, then such stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. (c) It is intended that there be no third party beneficiaries of this Pledge Agreement, other than the Bondholders (if any), District No. 1 and the Developer. (d) This Pledge Agreement may not be assigned or transferred by any party without the prior written consent of each of the other parties. (e) This Pledge Agreement shall be governed by and construed under the applicable laws of the State of Colorado. (f) Venue for any and all claims brought by either Party to enforce any provision of this Agreement shall be the District Court in and for the County of Weld, State of Colorado. • 17 4842-8935 2197.47197 5 • (g) This Pledge Agreement may be amended or supplemented by the parties, but any such amendment or supplement must be in writing and must be executed by all parties. (h) If the date for making any payment or performing any action hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed. (i) Each party has participated fully in the review and revision of this Pledge Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Pledge Agreement. The language in this Pledge Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. (j) This Pledge Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 4.08. Effective Date and Termination Date. This Agreement shall become effective on the Effective Date, and shall remain in effect until the Termination Date. • [Signatures appear on following page.] • 18 4842-8935 2197^7197 5 IN WITNESS WHEREOF, the District and the Authority have executed this Agreement • as of the day and year first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary BEEBE DRAW FARMS AUTHORITY • By: President ATTEST: Secretary • 19 4842-8935 2197421975 • Document comparison done by DeltaView on Monday, December 21, 2009 12:20:57 PM Input Document 1 WORLDOX:/IW:\Clients\1012\emailin\00158262.DOC Document 2 WORLDOX://W:\Clients\1012\emailin\00160979.DOC Rendering set Standard Legends Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell N Deleted cell Moved cell Split/Merged cell Padding cell • Statistics:_ Count Insertions 4 Deletions 4 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total shames 8 • DRAFT: 4-1112/18/09 DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT ( EXCLUSION) This DISTRICT NO. 2 CAPITAL PLEDGE AGREEMENT ( EXCLUSION) (the "Agreement" or "Pledge Agreement"), is made and entered into and dated as of _, 20 by and between BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 (the "District"), a quasi-municipal corporation and political subdivision of the State of Colorado and BEEBE DRAW FARMS AUTHORITY (the "Authority"), a separate legal entity. All capitalized terms used herein and not otherwise defined shall have the meanings assigned them in Article I hereof. RECITALS WHEREAS, the District and Beebe Draw Farms Metropolitan District No. 1 ("District No. 1" and, together with the District, the "Districts") are special districts organized pursuant to Section 32-1-101, C.R.S. et seq. and operate in accordance with a Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010 (the "Service Plan"); and WHEREAS, pursuant to the Colorado Constitution Article XIV, Section 18(2)(a), and Section 29-1-203, C.R.S., the Districts may cooperate or contract with each other to provide any function, service or facility lawfully authorized to each, and any such contract may provide for • the sharing of costs, the imposition and collection of taxes, and the incurring of debt; and WHEREAS, the Service Plan discloses and establishes the necessity for, and desirability of an intergovernmental agreement between the Districts concerning the financing, construction, operation and maintenance of Public Improvements (hereinafter defined) contemplated in the Service Plan and concerning the provision of essential services in the community to be served by the Districts; and WHEREAS, in furtherance of the foregoing, and as permitted by Section 29-1-203(4), C.R.S., the Authority was established pursuant to a Beebe Draw Farms Authority Establishment Agreement dated as of , 2010, between the Districts (the "Establishment Agreement"); and WHEREAS, the Establishment Agreement created the Authority and sets forth an overall plan for financing, construction, ownership, operation and maintenance of the Public Improvements agreed upon by the Districts and intended to facilitate the provision of such Public Improvements in a timely and efficient manner, and to allocate the costs thereof equitably among the users of such Public Improvements, through cooperation among the Authority and the Districts; and WHEREAS, in accordance with the Service Plan and Establishment Agreement, the District and the Authority anticipate that the District may issue, from time to time, revenue bonds (as more particularly defined herein, the "Revenue Bonds") for the purpose of funding the • Actual Capital Costs (defined herein); and EXHIBIT I 4843-1202 1252.111252 5 �� • WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority have previously entered into an Initial Pledge Agreement dated , 20 (the "Initial Pledge Agreement") to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided therein; and WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority have previously entered into a District No. 2 Capital Pledge Agreement (First Exclusion) dated , 20 [INSERT ADDITIONAL PLEDGE AGREEMENTS EXECUTED PRIOR TO THIS PLEDGE AGREEMENT] (collectively, the "Prior Pledge Agreements") to provide for the funding of Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided therein; and WHEREAS, as contemplated by the Establishment Agreement, the District and the Authority now desire to enter into this District No. 2 Capital Pledge Agreement ( Exclusion) to provide for the funding of additional Actual Capital Costs through the imposition by the District of an ad valorem property tax mill levy, as more particularly provided herein; and WHEREAS, at an election of the qualified electors of the District duly called for and held on May 4, 2010 (the "Election"), in accordance with law and pursuant to due notice, a majority of eligible electors who voted at such election voted in favor of the issuance of general obligation indebtedness and the imposition of taxes for the payment thereof, for the purpose of funding certain improvements and facilities, including the Public Improvements, as follows: • Authorization Purpose Total Streets Water Parks and Recreation WHEREAS, the District has allocated the authority for debt obtained in the Election to all of the indebtedness represented by the Initial Pledge Agreement and the Prior Pledge Agreements, based upon the Principal Portion of the Payment Obligations thereunder (as defined herein), and the anticipated uses of the Pledged Revenues generated thereunder and payable to the Authority, as follows: Allocation of Prior Pledge Agreements to Election Principal Amount of Principal Amount of Purpose Authorization Used Authorization Remainin Streets Water Parks and Recreation • WHEREAS, the District will allocate the authority for debt obtained in the Election to all of the indebtedness represented by this Pledge Agreement, based upon the Principal Portion of 2 4843-1202 1252.41257 1 • the Payment Obligation (defined herein), and the anticipated uses of the Pledged Revenues generated hereunder and payable to the Authority, as follows: Allocation of Pled e Agreement( Exclusion) to Election Principal Amount of Principal Amount of Purpose Authorization Used Authorization Remainin Streets Water Parks and Recreation provided that the foregoing allocation is based upon the District's best estimate at the time this Pledge Agreement is being entered into, the District may at any time reallocate the foregoing in accordance with the actual Public Improvements financed or refinanced as a result of this Pledge Agreement and, will, [from time to time], allocate additional or adjust existing electoral authority as applicable; and WHEREAS, the District has determined and hereby determines that the execution of this Pledge Agreement, to facilitate the purposes of this Pledge Agreement and the Establishment Agreement, and the provision of the Public Improvements are in the best interests of the District and the residents, property owners, and taxpayers thereof and that the financing plan set forth in the Establishment Agreement and implemented, in part, through the execution and delivery of • this Pledge Agreement is necessary for the timely and efficient provisions of the Public Improvements and equitable allocation of the costs thereof among the users of the Public Improvements; and WHEREAS, all amendments to this Agreement made pursuant hereto and not in conflict with the ballot questions, the Service Plan or the Establishment Agreement, which authorized the debt represented by this Agreement, shall be deemed part of this Agreement and fully authorized by such ballot questions. COVENANTS NOW, THEREFORE, for and in consideration of the promises and the mutual covenants and stipulations herein, the parties hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Interpretation. In this Agreement, unless the context expressly indicates otherwise, the words defined below shall have the meanings set forth below: (a) The terms "herein," "hereunder," "hereby," "hereto," "hereof' and any similar terms, refer to this Agreement as a whole and not to any particular article, section, • or subdivision hereof; the term "heretofore" means before the date of execution of the Agreement; and the term "hereafter"means after the date of execution of this Agreement. 3 4843-1202 1252.41257 8 • (b) All definitions, terms, and words shall include both the singular and the plural, and all capitalized words or terms shall have the definitions set forth in Section 1.02 hereof. (c) Words of the masculine gender include correlative words of the feminine and neuter genders, and words importing the singular number include the plural number and vice versa. (d) The captions or headings of this Agreement are for convenience only, and in no way define, limit, or describe the scope or intent of any provision, article, or section of this Agreement. (e) All schedules, exhibits, and addenda referred to herein are incorporated herein by this reference. Section 1.02. Definitions. As used herein, unless the context expressly indicates otherwise, the words defined below and capitalized throughout the text of this Agreement shall have the respective meanings set forth below. Capitalized terms used and not otherwise defined (including but not limited to Actual Capital Costs, Amenities, Amenity Account, Infrastructure, Infrastructure Account and Required O&M Mill Levy) shall have the meanings assigned them in the Establishment Agreement. (a) "Agreement" or "Pledge Agreement" shall mean this Agreement and any • amendment hereto made in accordance herewith. (b) "Assignment Agreement" shall mean any agreement entered into between the Authority and the District that provides for the assignment by the Authority to the District of a specified portion of Pledged Revenues deposited in, or to be deposited in, the Infrastructure Account or Amenity Account in accordance with this Pledge Agreement and the Establishment Agreement, which Assignment Agreement is intended to secure payment of Revenue Bonds and/or Developer Revenue Obligations of the District. (c) "Authority" means Beebe Draw Farms Authority, formed pursuant to the Establishment Agreement. (d) "Board" or "Boards" shall mean the lawfully organized Boards of Directors of the Districts. (e) "Board of County Commissioners" shall mean the Board of County Commissioners for Weld County, Colorado. (f) "Bond Documents" shall mean any resolution, indenture, reimbursement agreement or other agreement entered into or adopted by the District in connection with the issuance of Revenue Bonds. (g) "Bondholder"means the beneficial owner of any Revenue Bond. • 4 4843-1202 1252.41757 5 • (h) "Developer" shall have the meaning assigned it in the Establishment Agreement. (i) "Developer Revenue Obligations" shall mean notes, bonds or other indebtedness issued by the District and payable to the Developer for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement. (j) "Development Fees" shall have the meaning assigned it in the Establishment Agreement. (k) "District" shall mean Beebe Draw Farms Metropolitan District No. 2. (1) "District No. 1" shall mean Beebe Draw Farms Metropolitan District No. 1. (m) "Effective Date" shall mean , 20 . (n) "Establishment Agreement" means the Beebe Draw Farms Authority Establishment Agreement dated , 2010, between the District and District No. I. (o) "Maximum Annual Limited Receipts" shall mean, for any particular calendar year, the dollar amount that would result from the imposition of an ad valorem • property tax levy of 50 mills (without adjustment) on the final certified assessed valuation of the District, as certified to the District by the County Assessor on the immediately preceding December 10. (p) "Mill Levy Certification Date" means December 10 of each year, on or prior to which date an ad valorem property tax levy is required to be certified to the County Board in accordance with Section 2.04 hereof and state law. (q) "1998 Bond Mill Levy" means, for any particular Mill Levy Certification Date, the ad valorem property tax levy required to be imposed upon property within the boundaries of District No. 1 for the payment of the debt service costs (including principal, interest, mandatory redemption price, trustee and paying agent fees) for the General Obligation Bonds, Series 1998 issued by District No. 1. (r) "Payment Obligation" shall mean the District's obligation to pay the Actual Capital Costs in accordance with the provisions hereof, but solely from Pledged Revenues, to the extent available. (s) "Pledged Revenues" means, collectively, Property Tax Revenues, Specific Ownership Tax Revenues, and Development Fees (but excluding any Development Fees pledged and payable under any Prior Pledge Agreement). (t) "Principal Portion" means an amount equal to $ , representing • the principal component of the Payment Obligation hereunder. 5 4843-1202 1252412525 • (u) "Prior Pledge Agreements" means, collectively, District No. 2 Capital Pledge Agreement (First Exclusion) dated , 20 , between the District and the Authority, [ADD ALL PRIOR PLEDGE AGREEMENTS] (v) "Prior Pledged Capital Mill Levy" means, for any particular Mill Levy Certification Date, the total mill levy required to be imposed by the District for payment of the Payment Obligations under the Prior Pledge Agreements. (w) "Property Tax Revenues" means all moneys derived from imposition of the Required Mill Levy by the District, but excluding Specific Ownership Tax Revenues. (x) "Public Improvements" means, collectively, Infrastructure and Amenities, as more particularly defined in the Establishment Agreement. (y) "Required Mill Levy" means, with respect to any particular Mill Levy Certification Date, an ad valorem mill levy (a mill being equal to 1/10 of 1 cent) imposed upon all taxable property of the District each year, commencing in tax levy year 20 (tax collection year 20 ), in an amount equal to 50 mills less the 1998 Bond Mill Levy for such Mill Levy Certification Date, less the Required O&M Mill Levy for such Mill Levy Certification Date, and less the Prior Pledged Capital Mill Levy for such Mill Levy Certification Date; provided that: (i) in the event the method of calculating assessed valuation is • changed after the date hereof, the 50 mills described above will be increased or decreased to reflect such changes, such increases or decreases to be determined by the District in good faith (such determination to be binding and final) so that to the extent possible, the actual tax revenues generated by the mill levy, as adjusted, are neither diminished nor enhanced as a result of such changes. For purposes of the foregoing, a change in the ratio of actual valuation to assessed valuation shall be deemed to be a change in the method of calculating assessed valuation; and (ii) notwithstanding anything herein to the contrary, in no event shall the Required Mill Levy exceed 50 mills, except under the circumstances set forth in Section 2.03(b) hereof, and subject to the limitations set forth therein, and, in the event that the Required Mill Levy as calculated pursuant to the foregoing would exceed 50 mills and Section 2.03(b) is not applicable, then the Required Mill Levy shall be reduced to equal 50 mills; and (iii) notwithstanding anything herein to the contrary, in no event may the Required Mill Levy be established at a mill levy rate which would cause the District to derive tax revenue in any year in excess of the maximum tax increases permitted by the District's electoral authorization, and if the Required Mill Levy as calculated pursuant to the foregoing would cause the amount of taxes collected in any year to exceed the maximum tax increase permitted by the District's electoral authorization, the Required Mill Levy shall be reduced to the point that • such maximum tax increase is not exceeded. 6 4843-1202 1252 41252 5 • (z) "Revenue Bonds" shall mean notes, bonds or other indebtedness issued by the District for the purpose of funding Actual Capital Costs and payable from all or a portion of the Pledged Revenues assigned by the Authority to the District in accordance with an Assignment Agreement, excluding Developer Revenue Obligations. (aa) "Service Plan" shall mean the Amended and Restated Consolidated Service Plan for the Beebe Draw Farms Metropolitan District Nos. 1 & 2, dated , 2010, as approved by the Board of County Commissioners of Weld County, Colorado on , 2010. (bb) "Specific Ownership Tax Revenues" shall mean the specific ownership taxes remitted to the District pursuant to Section 42-3-107, C.R.S., or any successor statute, as a result of its imposition of the Required Mill Levy. (cc) "Subsequent Pledge Agreements" means pledge agreements entered into between the District and the Authority subsequent to the date hereof providing for the imposition of ad valorem property taxes by the District and payment of the proceeds thereof to the Authority, as contemplated by the Establishment Agreement. (dd) "Supplemental Act" means the "Supplemental Public Securities Act," being Title 11, Article 57, Part 2, Colorado Revised Statutes, as amended. (ee) "Termination Date" shall mean , 20 (i.e., the imposition of • taxes hereunder shall not be made after tax levy year 20_ and such taxes shall not be collected after tax collection year 20 ) [REFLECT 40 YEAR TERM]. ARTICLE II PAYMENT OBLIGATION Section 2.01. No Additional Electoral Approval Required. The authorization for issuance of debt, fiscal year spending, revenue collections and other constitutional matters requiring voter approval for purposes of this Agreement, was approved at an election held for the District on May 4, 2010, in accordance with law and pursuant to due notice. The performance of the terms of this Agreement requires no further electoral approval. Section 2.02. Funding of Actual Capital Costs Generally. (a) In exchange for the Authority's agreement to provide for the acquisition, construction, improvement and equipping of the Amenities and the Infrastructure, in accordance with the Establishment Agreement and as more particularly provided in Section 2.05(c) below, and in exchange for the purchase by any Bondholder of Revenue Bonds (if any) issued to fund Actual Capital Costs and payable from Pledged Revenues generated hereunder, the District hereby agrees to pay to the Authority for the payment of Actual Capital Costs, but solely from the sources specified herein, the amount of $ , plus interest thereon at the rate of % per annum (calculated in • accordance with subparagraph (b) hereof), or such lesser amount as may be funded from the Pledged Revenues (the "Payment Obligation"). 7 4843-1202 1252417525 • (b) Interest shall accrue on the outstanding balance of the Principal Portion of the Payment Obligation (initially $ ) at the rate of % per annum, and shall be calculated monthly based upon the outstanding Principal Portion as of the end of each month. Accrued but unpaid interest shall not-compound semi-annually on each June 1 and December 1 commencing on the first June 1 or December 1 (whichever is the earliest)to occur after the date of execution of this Agreement. (c) Pledged Revenues received by the Authority (including any amounts payable to the Authority but assigned to the District in accordance with any Assignment Agreement) shall be applied, first, to the payment of accrued interest and, second, to the outstanding principal balance of the Payment Obligation. (d) The Payment Obligation constitutes a limited tax obligation of the District payable solely from and to the extent of the Pledged Revenues. The Pledged Revenues are hereby pledged by the District to the Authority (and, to the extent of any Bondholders, for the benefit of such Bondholders), for the payment of Actual Capital Costs in accordance with the provisions hereof. The Payment Obligation shall constitute an irrevocable lien upon the Pledged Revenues. The District hereby elects to apply all of the provisions of the Supplemental Act to this Pledge Agreement and the Payment Obligation. Section 2.03. Limitations on Payment Obligation. • (a) In no event shall the total or annual obligations of the District hereunder exceed the maximum amounts permitted under its electoral authority and any other applicable law. The entire Payment Obligation will be deemed defeased and no longer outstanding upon the earlier of: (i) the payment by the District of such amount; or(ii) the Termination Date. (b) In accordance with the definition of Required Mill Levy set forth in Section 1.02 hereof, the Required Mill Levy may not exceed 50 mills, except as specifically provided in this Section 2.03(b). In the event that, for the purpose of funding Actual Capital Costs, the District determines to issue Revenue Bonds and, in connection therewith, enters into an Assignment Agreement with the Authority relating to revenues payable hereunder for the purpose of providing for the payment of such Revenue Bonds, if and only if such Revenue Bonds satisfy the conditions of Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S., (the satisfaction of which shall be determined by the District and stated in the applicable Assignment Agreement) then so long as such Revenue Bonds are outstanding, the following provisions shall apply: ()) subparagraph (ii) of the definition of Required Mill Levy shall not apply; and (ii) in no event shall the District receive in any year under any Assignment Agreement for the payment of Revenue Bonds which do not satisfy Section 32-1-1101(6)(a)(I), (II), (III) or (IV), C.R.S., or under any Assignment • Agreement for the payment of a Developer Revenue Obligation, Property Tax 8 4843-1202 1252.41252 f • Revenues and Specific Ownership Tax Revenues resulting from the imposition of the Required Mill Levy by the District in excess of the Maximum Annual Limited Receipts for such year; and (iii) In no event shall the Authority retain in any year, after the payment (or retention by the District) of any amounts due to the District in accordance with an Assignment Agreement, revenues resulting from the imposition by the District of the Required Mill Levy (whether Property Tax Revenues or Specific Ownership Tax Revenues) in excess of the Maximum Annual Limited Receipts for such year. Any amounts in excess thereof shall [be deducted by the District from the amount of Property Tax Revenues otherwise payable to the Authority] in the succeeding year, and shall be applied by the District to any lawful purpose. Notwithstanding any of the foregoing, this paragraph shall not operate to modify or limit any amounts payable by the District to the Authority in accordance with any other agreements between the District and the Authority or the Establishment Agreement, including the obligation of the District to pay proceeds of the Required O&M Mill Levy to the Authority in accordance with the Establishment Agreement. Section 2.04. Imposition of Required Mill Levy. (a) In order to fund the Payment Obligation, the District agrees to levy on all of the taxable property of the District, in addition to all other taxes, direct annual taxes in • tax levy year 20 (tax collection year 20 ), and in each year thereafter (but in no event after the Termination Date), in the amount of the Required Mill Levy. Nothing herein shall be construed to require the District to impose an ad valorem property tax levy for the payment of the Payment Obligation in excess of the Required Mill Levy or after the Termination Date. (b) The parties hereto acknowledge that Article 5 of the Establishment Agreement sets forth a process by which the Authority will develop and submit to the Districts an annual operating budget. In order to facilitate the determination of the Required Mill Levy by the District, the Authority shall provide to the District, the preliminary and final Required O&M Mill Levy and the 1998 Bonds Mill Levy for the immediately succeeding Mill Levy Certification Date, in the time and manner set forth in the Establishment Agreement. (c) No later than December 5 of each year, the District shall provide written notice to the Authority of the Required Mill Levy that the District intends to certify on the immediately succeeding Mill Levy Certification Date, and the District shall certify the same on or before December 10 unless notified by the Authority that the Required Mill Levy as determined by the District is not in compliance with the requirements of this Agreement. (d) The District acknowledges that it has actively participated in the • development of the plan to finance Actual Capital Costs as set forth in the Establishment Agreement and herein, including the method for calculation of the Required Mill Levy as 9 4843-1202 1252.417525 • set forth herein, that such calculation is designed to correlate to the benefit to the District of the Public Improvements financed by the Pledged Revenues (and, Revenue Bonds, if any) and that the calculation of the Required Mill Levy in accordance with the foregoing and obligation of the District to impose the same in each year during the term of this Agreement shall be final and binding upon the District. (e) This Section 2.04 is hereby declared to be the certificate of the District to the Board of County Commissioners indicating the aggregate amount of taxes to be levied for the purposes of paying the Payment Obligation due hereunder. (f) It shall be the duty of the District annually at the time and in the manner provided by law for the levying of the District's taxes, if such action shall be necessary to effectuate the provisions of this Agreement, to ratify and carry out the provisions hereof with reference to the levy and collection of the ad valorem property taxes herein specified, and to require the officers of the District to cause the appropriate officials of Weld County, to levy, extend and collect said ad valorem taxes in the manner provided by law for the purpose of providing funds for the payment of the amounts to be paid hereunder promptly as the same, respectively, become due. Said taxes, when collected, shall be applied only to the payment of the amounts to be paid hereunder. (g) Said taxes shall be levied, assessed, collected, and enforced at the time and in the form and manner and with like interest and penalties as other general taxes in the State of Colorado. • (h) The District shall pursue all reasonable remedies to collect, or cause the collection of, delinquent ad valorem taxes within its boundaries. Section 2.05. Payment and Application of Revenues. (a) Subject to Section 2.09 hereof, the District hereby agrees to remit to the Authority [as soon as practicable upon receipt], all revenues comprising Pledged Revenues. (b) All amounts payable by the District hereunder shall be paid in lawful money of the United States of America by check mailed or delivered, or by wire transfer, to the Authority (or at the direction of Authority, any other entity in accordance with applicable Bond Documents). (c) The Authority hereby agrees that, subject to Section 2.09, the Authority shall promptly deposit all Pledged Revenues received by it in accordance with this Agreement into the Infrastructure Account or the Amenity Account established under the Establishment Agreement and shall cause the same to be applied to Actual Capital Costs relating to Infrastructure or Amenities, respectively, as more particularly provided in the Establishment Agreement; provided, however, that, notwithstanding the foregoing, the Pledged Revenues may be directly deposited by the District into the Infrastructure Account or Amenity Account, as directed by the Authority and in accordance with the • Establishment Agreement. Without limiting the foregoing, the Authority hereby agrees to undertake and diligently pursue the provision of Public Improvements in accordance 10 4843-1202 1252.41752 5 • with the Establishment Agreement, to the extent funding is available therefor from the Pledged Revenues payable hereunder. The Authority and the District acknowledge that the Establishment Agreement, including the provisions thereof relating to the deposit and use of moneys in the Infrastructure Account and Amenity Account, may not be amended or modified in any way without the prior written consent of the District. (d) The Authority shall provide to the District, not less than 180 days after the end of each fiscal year, a report indicating, separately, the amounts of Property Tax Revenues, Specific Ownership Tax Revenues and Development Fees received by the Authority and deposited into the Infrastructure Account and Amenity Account. Such report shall also provide the amount of Pledged Revenues disbursed from the Infrastructure Account to fund Roads and, separately, Water (both as defined in the Establishment Agreement), and the amount of Pledged Revenues disbursed from the Amenity Account to fund Amenities. Section 2.06. Effectuation of Pledge of Security, Current Appropriation. The sums herein required to pay the amounts due hereunder are hereby appropriated for that purpose, and said amounts for each year shall be included in the annual budget and the appropriation resolution or measures to be adopted or passed by the Board of the District in each year while any of the obligations herein authorized are outstanding and unpaid. No provisions of any constitution, statute, resolution or other order or measure enacted after the execution of this Agreement shall in any manner be construed as limiting or impairing the obligation of the District to levy ad valorem property taxes, or as limiting or impairing the obligation of the • District to levy, administer, enforce and collect the ad valorem property taxes as provided herein for the payment of the obligations hereunder. Furthermore, the District acknowledges that purchasers and credit enhancers of the Developer Revenue Obligations and the Revenue Bonds may incur costs and expenses, and will have otherwised purchased or provided credit enhancement for the Developer Revenue Obligations and Revenue Bonds, in reliance upon the promise of the District to impose the Required Mill Levy and pay the Pledged Revenues generated therefrom to the Authority in accordance with this Agreement and, as a result, such parties shall be entitled to rely on the payment obligations of the District to the Authority contained hereunder. Accordingly, it is acknowledged by the parties hereto that the purpose of this Section 2.06 is to ensure that the Authority receives all payments due herein in a timely manner in order to provide for the payment of amounts due to such parties. Section 2.07. Limited Defenses; Specific Performance. It is understood and agreed by the District that its obligations hereunder are absolute, irrevocable, and unconditional except as specifically stated herein, and so long as any obligation of the District hereunder remains unfulfilled, the District agrees that notwithstanding any fact, circumstance, dispute, or any other matter, it will not assert any rights of setoff, counterclaim, estoppel, or other defenses to its Payment Obligation, or take or fail to take any action which would delay a payment to the Authority or the Authority's ability to receive payments due hereunder. Notwithstanding that this Agreement specifically prohibits and limits defenses and claims of the District, in the event • that the District believes that it has valid defenses, setoffs, counterclaims, or other claims other than specifically permitted by this Agreement, it shall, nevertheless, make all payments as 11 4843-1202 1252 41252,5 • described herein and then may attempt or seek to recover such payments by actions at law or in equity for damages or specific performance, respectively. Section 2.08. Future Exclusion of Property. The parties agree that this Agreement constitutes "indebtedness" as contemplated by Section 32-1-503, C.R.S. Any property excluded from the District after the date hereof is to remain liable for the imposition of the Required Mill Levy and payment of the proceeds thereof in accordance with the provisions hereof, to the same extent as such property otherwise remains liable for the debt of the District, as provided in Section 32-1-503, C.R.S.. In the event that any order providing for the exclusion of property from the District does not so provide and specifically indicate the liability of such excluded property for the obligations set forth herein, the Authority and the District hereby agree to take all actions reasonably necessary to cause the property owners of such proposed excluded property to covenant to assume all responsibilities under this Agreement, which covenants shall run with the land and shall be in a form satisfactory to the Authority. Section 2.09. Future Debt of the District. (a) The parties acknowledge that, in accordance with the Establishment Agreement, the District may issue Revenue Bonds or enter into Developer Revenue Obligations for the purpose of funding Actual Capital Costs relating to Infrastructure and, with the consent of the Authority, Amenities, which Revenue Bonds and Developer Revenue Obligations are intended to be payable from Pledged Revenues assigned to the District pursuant to an Assignment Agreement, which are otherwise required, in • accordance with this Agreement, to be paid to the Authority and deposited into the Infrastructure Account and Amenity Account, as applicable. The parties also acknowledge that, as contemplated by the Establishment Agreement, the Authority and the District expect to enter into Subsequent Pledge Agreements. (b) The District agrees that it will not issue or incur bonds, notes, or other obligations payable in whole or in part from, or constituting a lien upon, the general ad valorem taxes of District or payable from any other revenues of the District or otherwise constituting indebtedness (whether or not subject to annual appropriation), other than Subsequent Pledge Agreements, Revenue Bonds and Developer Revenue Obligations issued in compliance with the Establishment Agreement and this Agreement. (c) Notwithstanding the provisions of Section 2.05(c) hereof, the District and the Authority may enter into an Assignment Agreement providing that all or any portion of the Pledged Revenues payable hereunder and required to be deposited into the Infrastructure Account and Amenity Account shall, instead, be disbursed by the District to a trustee or paying agent or to the Developer, for payment of Revenue Bonds and/or Developer Revenue Obligations, in which case the provisions of such Assignment Agreement shall control. Notwithstanding the foregoing, any Assignment Agreement shall provide that the portions of such Pledged Revenues that would otherwise be applied, in accordance with the Establishment Agreement, to costs of Amenities or Infrastructure, shall be applied to the payment of Revenue Bonds or Developer Revenue Obligations • funding Amenities or Infrastructure, respectively. In no event shall an Assignment 12 4843-1202 1252.41252 5 • Agreement abrogate the intended allocation of Pledged Revenues between costs of Amenities and Infrastructure, as provided in the Establishment Agreement. (d) [The Authority hereby agrees to cooperate in the amendment of this Pledge Agreement to modify the definition of Required Mill Levy if necessary, in the determination of the District, to facilitate the issuance of Revenue Bonds by the District.] (e) Notwithstanding any other provision of this Agreement, the District shall not impose, in accordance with a Subsequent Pledge Agreement or any other agreement, in any given year, an aggregate debt service and capital mill levy in excess of 50 mills (adjusted for changes in the method of calculating assessed valuation in the same manner, and to the extent permitted, as provided in the definition of"Required Mill Levy" herein) less the Required O&M Mill Levy required to be imposed in such year. (f) At least once a year as required by applicable state law, the District will cause an audit to be performed of the records relating to revenues and expenditures of the District. In addition, at least once a year as required by applicable state law, the District will cause a budget to be prepared and adopted. Copies of the budget and the audit will be filed and recorded in the places,time, and manner as required by applicable state law. Section 2.10. Representations and Warranties of the District. The District hereby makes the following representations and warranties: • (a) The District is a quasi-municipal corporation and political subdivision duly organized and validly existing under the laws of the State of Colorado. (b) The District has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The District's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The District is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the District to perform its obligations hereunder. The execution, delivery and performance by the District of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ,judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the District in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the District pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the District is a party or which purports to be binding upon the District or upon any of its revenues or other assets • which could reasonably be expected to result in a material adverse effect. 13 4843-1202 1252.41252 5 • (d) The District has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the District of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the District is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the District threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the District is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the District to perform its obligations under, this Pledge Agreement. (f) This Pledge Agreement constitutes the legal, valid, and binding obligation of the District, enforceable against the District in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). Section 2.11. Representations and Warranties of the Authority. The Authority hereby makes the following representations and warranties: • (a) The Authority is a separate legal entity duly organized and validly existing under the laws of the State of Colorado. (b) The Authority has all requisite corporate power and authority to execute, deliver, and to perform its obligations under this Pledge Agreement. The Authority's execution, delivery, and performance of this Pledge Agreement have been duly authorized by all necessary action. (c) The Authority is not in violation of any of the applicable provisions of law or any order of any court having jurisdiction in the matter, which violation could reasonably be expected to materially adversely affect the ability of the Authority to perform its obligations hereunder. The execution, delivery and performance by the Authority of this Pledge Agreement (i) will not violate any provision of any applicable law or regulation or of any order, writ, judgment or decree of any court, arbitrator, or governmental authority, (ii) will not violate any provision of any document or agreement constituting, regulating, or otherwise affecting the operations or activities of the Authority in a manner that could reasonably be expected to result in a material adverse effect, and (iii) will not violate any provision of, constitute a default under, or result in the creation or imposition of any lien, mortgage, pledge, charge, security interest, or encumbrance of any kind on any of the revenues or other assets of the Authority pursuant to the provisions of any mortgage, indenture, contract, agreement, or other undertaking to which the Authority is a party or which purports to be binding upon the Authority or • upon any of its revenues or other assets which could reasonably be expected to result in a material adverse effect. 14 4843-1202 1252.^1257 5 • (d) The Authority has obtained all consents and approvals of, and has made all registrations and declarations with any governmental authority or regulatory body required for the execution, delivery, and performance by the Authority of this Pledge Agreement. (e) There is no action, suit, inquiry, investigation, or proceeding to which the Authority is a party, at law or in equity, before or by any court, arbitrator, governmental or other board, body, or official which is pending or, to the best knowledge of the Authority threatened, in connection with any of the transactions contemplated by this Pledge Agreement nor, to the best knowledge of the Authority is there any basis therefor, wherein an unfavorable decision, ruling, or finding could reasonably be expected to have a material adverse effect on the validity or enforceability of, or the authority or ability of the Authority to perform its obligations under, this Pledge Agreement. (f) This Pledge Agreement constitutes the legal, valid, and binding obligation of the Authority, enforceable against the Authority in accordance with its terms (except as such enforceability may be limited by bankruptcy, moratorium, or other similar laws affecting creditors' rights generally and provided that the application of equitable remedies is subject to the application of equitable principles). ARTICLE III EVENTS OF DEFAULT AND REMEDIES • Section 3.01. Events of Default. The occurrence or existence of any one or more of the following events shall be an "Event of Default" hereunder, and there shall be no default or Event of Default hereunder except as provided in this Section: (a) The District fails or refuses to impose the Required Mill Levy or to remit the Pledged Revenues, as required by the terms of this Pledge Agreement and subject to Section 2.09 hereof; (b) any representation or warranty made by any party in this Pledge Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Party; (c) any party fails in the performance of any other of its covenants in this Pledge Agreement, and such failure continues for sixty (60) days after written notice specifying such default and requiring the same to be remedied is given to any of the parties hereto; or (d) (i) any party shall commence any case, proceeding, or other action (A) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, or relief of debtors, seeking to have an order for relief entered with • respect to it or seeking to adjudicate it insolvent or a bankrupt or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition, or other 15 4843-1202 1252 41252 • relief with respect to it or its debts, or (B) seeking appointment of a receiver, trustee, custodian, or other similar official for itself or for any substantial part of its property, or any party shall make a general assignment for the benefit of its creditors; or (ii) there shall be commenced against any party any case, proceeding, or other action of a nature referred to in clause (i) and the same shall remain not dismissed within ninety (90) days following the date of filing; or (iii) there shall be commenced against any party any case, proceeding, or other action seeking issuance of a warrant of attachment, execution, distraint, or similar process against all or any substantial part of its property which results in the entry of an order for any such relief which shall not have been vacated, discharged, stayed, or bonded pending appeal within ninety (90) days from the entry thereof, or (iv) any party shall take action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth in clause (i), (ii) or (iii) above; or (v) any party shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due. Section 3.02. Remedies for Events of Default. Upon the occurrence and continuance of an Event of Default, any party may proceed to protect and enforce its rights against the party or parties causing the Event of Default by mandamus or such other suit, action, but solely for the purpose of seeking specific performance. ARTICLE IV MISCELLANEOUS • Section 4.01. Pledge of Pledged Revenues. The creation, perfection, enforcement, and priority of the pledge of revenues to secure or pay the Payment Obligation shall be governed by Section 11-57-208 of the Supplemental Act and this Pledge Agreement. The Pledged Revenues shall immediately be subject to the lien of such pledge without any physical delivery, filing, or further act. The lien of such pledge shall be valid, binding, and enforceable as against all persons having claims of any kind in tort, contract, or otherwise against the District irrespective of whether such persons have notice of such liens. Section 4.02. No Recourse against Officers and Agents. Pursuant to Section 11-57-209 of the Supplemental Act, if a member of the Boards of Directors of the District or the Authority, or any officer or agent of the District or Authority acts in good faith, no civil recourse shall be available against such member, officer, or agent for, with respect to the District, payment of the Payment Obligation or, with respect to the Authority, provision of the Public Improvements. Such recourse shall not be available either directly or indirectly through the Authority or the District, or otherwise, whether by virtue of any constitution, statute, rule of law, enforcement of penalty, or otherwise. By the acceptance of this Pledge Agreement and as a part of the consideration hereof, the Authority and the District each specifically waives any such recourse. Section 4.03. Conclusive Recital. Pursuant to Section 11-57-210 of the Supplemental Act, this Pledge Agreement contains a recital that it is issued pursuant to certain provisions of the • Supplemental Act, and such recital is conclusive evidence of the validity and the regularity of this Pledge Agreement after its delivery for value. 16 4843-1202 1252 41252 5 • Section 4.04. Limitation of Actions. Pursuant to Section 11-57-212, C.R.S., no legal or equitable action brought with respect to any legislative acts or proceedings in connection with the authorization, execution, or delivery of this Pledge Agreement shall be commenced more than thirty days after the authorization of this Pledge Agreement. Section 4.05. Notices. Except as otherwise provided herein, all notices or payments required to be given under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, or air freight, to the following addresses: If to District: With copies to: If to the Authority: With copies to: All notices or documents delivered or required to be delivered under the provisions of this Agreement shall be deemed received one (1) day after hand delivery or three (3) days after mailing. Either party by written notice so provided may change the address to which future notices shall be sent. Section 4.06. Miscellaneous. (a) This Pledge Agreement and the Establishment Agreement constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Pledge Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Pledge Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. In the event of any conflict between provisions of this Pledge Agreement and any other agreement between the District and the Authority, provisions of this Pledge Agreement shall control. No party has been induced to enter into this Pledge Agreement by, nor is any party relying on, any representation, understanding, agreement, commitment, or warranty outside those expressly set forth in this Pledge Agreement. (b) If any term or provision of this Pledge Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such illegal, unenforceable, or invalid provisions or part thereof shall be stricken from this Pledge Agreement, and such provision shall not affect the legality, enforceability, or validity of the remainder of this Pledge Agreement. If any provision or part thereof of this Pledge Agreement is stricken in accordance with the provisions hereof, then such stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally possible. • (c) It is intended that there be no third party beneficiaries of this Pledge Agreement, other than the Bondholders (if any), District No. 1 and the Developer. 17 4843-1202 1252412525 • (d) This Pledge Agreement may not be assigned or transferred by any party without the prior written consent of each of the other parties. (e) This Pledge Agreement shall be governed by and construed under the applicable laws of the State of Colorado. (f) Venue for any and all claims brought by either Party to enforce any provision of this Agreement shall be the District Court in and for the County of Weld, State of Colorado. (g) This Pledge Agreement may be amended or supplemented by the parties, but any such amendment or supplement must be in writing and must be executed by all parties. (h) If the date for making any payment or performing any action hereunder shall be a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed, such payment may be made or act performed on the next succeeding day which is not a legal holiday or a day on which banks in Denver, Colorado are authorized or required by law to remain closed. (i) Each party has participated fully in the review and revision of this Pledge Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Pledge Agreement. The • language in this Pledge Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. (j) This Pledge Agreement may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 4.07. Effective Date and Termination Date. This Agreement shall become effective on the Effective Date, and shall remain in effect until the Termination Date. [Signatures appear on following page.] • 18 4843-1202 1252.41752 8 II IN WITNESS WHEREOF, the District and the Authority have executed this Agreement as of the day and year first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary BEEBE DRAW FARMS AUTHORITY • By: President ATTEST: Secretary • 19 4843-1202 1252.41252 5 • Document comparison done by DeltaView on Monday, December 21, 2009 12:22:18 PM Input: Document 1 WORLDOX://W:\Clients\1012\emailin\00158260.DOC Document 2 WORLDOX://W:\Clients\1012\emailin\00160980.DOC Rendering set Standard Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell 74'"' Deleted cell Moved cell Split/Merged cell Padding cell Statistics:: Count Insertions 4 Deletions 4 Moved from 0 Moved to 0 Style change 0 Format changed 0 Total changes 8 • Esther Gesick o Kim Ogle nt: Tuesday, January 19, 2010 2:13 PM o: Esther Gesick Cc: 'Kristin Bowers'; Kim Ogle Subject: FW: Beebe Draw/PLR comments... Importance: High From: Donna S. Harr [mailto:donna@ideasfromtheharrt.com] Sent: Tuesday, January 19, 2010 11:13 AM To: Kim Ogle Subject: Beebe Draw/PLR comments... Importance: High •� 1C1kUi/YI/N ,1te ,q(4 t*, L, ( rcalirelr bringing your idcca • �.4 to lilt since 1992 Kim: As a longtime PLR resident, I wanted to take a few minutes to encourage you to approve the proposed Amended and Restated Consolidated Service Plan for the development. My husband and I moved into our newly constructed home in Pelican Lake Ranch in March 2000 and have seen great strides made in transforming the development into the place that it is today. The current developers have gone above and beyond in meeting almost all of the requests made by the residents. During our residence here, we have gotten a community pool with picnic pavilion, playground, enhanced horse trails, a wonderful, stocked-with-fish private lake that was expanded last year to include a large picnic pavilion with grills in the lake area, as well as public restrooms, parking lot, incredible walking path with scenic views of the lake and wildlife, and benches to rest on along the way. There is also a horse path around the lake. In addition, for the horse owners, there is an arena and round pen for exercising their horses. And in December, construction was started for a multi-use recreation court system next to the sales office/post office building, adjacent to the pool and playground area, that will provide not only a basketball/volleyball court, tennis court and shuffle board area but also a regulation size grass field for football and other field sport games. I cannot name another development with only 60-/+ resident homes what can 'Vast such amenities! These amenities have been requested via surveys and resident input over the years, a practice that continues to the present time. EXHIBIT 1 1S 'tabs Druz As residents, we now have the ability to not only vote on who our community representatives are but to also run for the various board officers positions. This provides that our common voice for the future is heard and considered. ihe proposed Plan insures that the money necessary to fund current and future expenses will be available. As residents, we have a great deal of control over the daily expense decisions while leaving the developers the control over their investment funds for the infrastructure for future growth, and insuring development maintenance. Any parent of teenagers understands the principal that while they might think they have enough experience and knowledge to 'run the home,' it's the parents—with consideration of their input—who truly have those qualities to make the final decisions about how their funds/investment should be spent. This keeps individual interests from trumping the overall development's best interests as a priority. The Plan also requires the County to approve the issuance of any new bonds to third parties before District 2 can proceed. This is a wonderful point that removes any questions about a possibility that District 2 could overly burden the community with unreasonable debt. And the list goes on and on as you know from the Plan details. In summary, I would like to urge the Board to approve the proposed Plan. While you, the Board, area realtors and the public in general have heard otherwise in the past, the true majority of the community residents would like to be liberated from the minority number of'teenagers' who have caused distress and division in the community and get back to an 'even keel' once more. Our desire is to have a Plan in place that will allow us as a community to feel like we're a united, harmonious development without unnecessary tension. We admit that in the past,the majority of us have stayed silent out of frustration but now realize that we need to be more vocal and express our support for solidarity as we set guidelines for the future via the proposed Plan. • Respectfully, Donna S. Harr, CEO/Founder Ideas from the Harrt 16489 Ledyard Rd. South Platteville, Colorado 80651-9345 (970) 785-6261 Office (970) 785-6155 Fax donna@ideasfromtheharrt.com www.ideasfromtheharrt.com • 2 Esther Gesick oorom: Kim Ogle nt: Tuesday, January 19, 2010 3:20 PM : Esther Gesick Cc: 'Kristin Bowers' Subject: FW: Letter for Beebe Draw Attachments: BOCC.docx ANOTHER BB DRAW LETTER FOR FILE Original Message From: Black, Linda [mailto:Linda.Black@unco.edu] Sent: Tuesday, January 19, 2010 3:00 PM To: Kim Ogle Subject: Letter for Beebe Draw Mr. Ogle, Please find attached my letter in support of the Amended and Restated Service Plan for Beebe Draw. I am sending this letter in advance of tomorrow because I am not sure whether or not I can leave my classes at UNC to come to the hearing. I may be there for public comment but either way I wanted this as part of the public record. Thank you for all you do for our community. Dr. Linda L. Black • • EXHIBIT 1 Linda L. Black, EdD, LPC 16478 Burghley Court Pelican Lake Ranch • Platteville, Colorado 80651 Weld County Board of County Commissions 915 10th Street Greeley, Colorado Board of County Commissioners: I am writing this letter to voice my solid support to the proposed Amended and Restated Consolidated Service Plan for Beebe Draw Farms. I have been a resident of this community since 2001, a District 1 Board member since December 2008, and a member of the District 1 Board Executive Committee since March 2009. With the recent resignation of Mr. Steve Cooper, I am now serving as the District 1 Board Chair. During my nine years as a resident I have been actively involved in many efforts to improve our community which include, but are not limited to participating on community advisory committees, initiating and then co-facilitating two community meetings aimed at improving resident/resident and resident/developer communication, and organizing community social activities. Therefore, I feel well qualified to state that the extensive efforts involved conceptualizing and proposing the Amended and Restated Service Plan meets my needs as a resident as well as the desires of many of my neighbors, and hopefully the standards of the Board of County Commissioners. • As a member of the District 1 Board Executive Committee I, along with another resident Mrs. Linda Cox, have been intimately involved in discussions with all residents, the Developer, other District 1 Board members, representatives from District 2, legal counsel for the Districts and legal counsel employed in response to the quinquennial review. The process of conceptualization and development of the proposed Service Plan has been respectful, transparent, inclusive, and has been focused on what is good for the residents and developers of Pelican Lake Ranch. Residents have been involved and informed, and many have been actively involved in providing feedback. It has been an amazing and at times exhausting process to undertake. I have great respect for the services each of you provide our county as it is no mean feat! Thank you. Specifically, I wish to amplify that this proposed plan will increase resident involvement in decisions that affect their property values and taxes, it maintains our tradition and culture of community involvement in the nature and location of amenities, it provides transparency with respect to the financial decisions made on behalf of the Districts, and it supports the role of the Developer as a vital partner in our growth. Further, the proposed Plan insures that funds will be available to complete the entire community, so when the taxes from the oil and gas production are exhausted, enough houses will be present to provide a solid tax base for operations and maintenance of our community. Most centrally, the Authority structure requires more transparency in the Districts and requires that representatives from both the resident district and the developer district meet • together and discuss all items no fewer than two public meetings prior to making any decisions. Residents are financially protected from the threat of building "roads to nowhere" as there are limits placed on the number of lots the Developer can develop at any one time and District 2 must seek and obtain the County's review and approval prior to the issuance of any bonds to third parties. • In closing, I urge each and everyone one of you to seriously consider the investment of personal, human, and financial capital that has gone into the proposal before you today. Our community is made up of good souls, who do not always agree, but who do simply want to live in a beautiful area of Weld County in a well run development. Please support us by supporting the proposed Amended and Restructured Service Plan. 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Li wi c (a c o .4 D o -O 0 (a U o L •w j -O c Co N > 0 Ca( C o � N OE 000 o U •- c w — N � UO 00 . .Xc! > O o � of, c • °_ o_ a)-0a °' c C O .O N 4- N +' U C � .ciE Ea � � w >, O a O L � CO ca E ND U a) w O N Q >, c U C7:3 U C ,N C co CO N co c F. • . 0 a -C a) to C — _ IP U C = CID U 5. c Q `1._was ca (aOOL cao c .- cc c00 -Ent �� O co O -0 c k U N (a — ,E2 ca (a }, N ■ ■ ■ • a) a)C0 >, � .-: � — a) , 'O V C _C OO co o ca �1 -c3 co> o_ O N p N co� o � CO > C_ > O Q i CO W � co � � o° = a) co O 73 4 +� N � a) r- N O QUa � 7 to o_ a) � — N p C • U u � N � 'o o zv O N U O U }' c (V O C a) u) N O a)o co C N �' O CO i ,0 .Q O w -C a) -O C �--' Q In WC CD U U) c f C LU � 4 - c� E ° co a N (n O U g .0 C Co >, � Q a) — (n _OU COW < 0 o .au) rM . • ■ ■ • L a) Co C cc • C co co C O co W ) To: Weld County BOCC • Copy, Kim Ogle, Planning Manager From: Howard and Susan Francis 16503 Badminton Road North Platteville, CO 80651 January 19, 2010 We are requesting the BOCC approve the proposed Amended and Restated Consolidated Service Plan for the following reasons: We believe the BOCC should approve the Plan and give the residents the opportunity to vote on the Plan at the May 2010 election. The proposed Plan assures that funds are available to complete the entire community so that in the future, when the taxes from the oil and gas production are gone, there are enough homes in the community to pay for the operations and maintenance with a reasonable mill levy. The Plan gives funding priority to the operations of the community. The Plan gives the residents control over the day to day operations of the community while leaving the control of the development of future lots with the Developer. • The plan gives residents a significant voice and participation in deciding what future amenities will be built and when. The Authority structure requires more transparency in the districts and requires that representatives from both the resident district and the developer district meet together and discuss all items at at least two public meetings prior to making any decisions. This allows residents an opportunity to participate and have input on all decisions affecting the community. The plan limits the obligation of the existing residents to pay for future debt and improvements. The Plan requires the County's review and approval before District #2 can issue any bonds to third parties. The Plan places a limit on the number of lots the developer can develop at any one time so that the community does not have any "roads to nowhere". Thank you, Howard and Susan Francis • EXHIBIT Ceebe Drwm 5"O • It - __ _ 11- i.e. 2 Ywill s ., _ .. - - - _ s Nom ' , ,�.� c " , '•= '[ {��i • .46 5,.'": !1. ./C .._...� `� �� ' - - - .� Y - .�_titile�._.4 ' +es, j - '�� !1 ^i ti r-1 w� ...- tea' _ T - - may.. • .1% 1 - — -` •• _ a- • '.::. i — a,C w4_.---r`.. . . •c ^ � •' i- --{ • .t..ter - t' •'rr- �� ce_ - - ..7 _ - Soft T f• .- � 1 •_ . ♦-y y_ ,s 2t}. +. 4 " I- cilliar Ill EXHIBIT I al • -7- I , mss. ' ' ' u. 1 - : rc 1. -.1" ^ +�! 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(.11C-2,c;.5l et- J 5 �,2 •/G1. ),--k ss62_4r '- -� ,..L.A.L-.-; A ..,.;:--I.rYL.Ls -/4,--,..i.-- --1-14L-,-; cal Tfriy'YZ.....[..,ti e :il„� ✓(...' : LL„ 54-;:.:....LL 5 4-= -- al .�Imo& -(-, J L.c�-y�w., }- -1---4,11,/k.) c 1.. L� 7/Lt.,e.t,� -- .�''-7y�!��t'e/1(LLJ- �.1u". .. � E e-„jG f/ "L. /1 5;Li -.. ) scup rS Dci.4 [✓) S 1 I) (� � y� l �—u�j 1-t-c4"" '()E-&9u:.a 6.7._, i/1-' e C'c..f I CIA- c:.._. w yy yLi .rc2, Ir -_ IA;, - !%a,-+.-G- i-Cc.."s 7A-H1--- v `_-.'�c->,.reL.<.- - 'Jr]), i / :.s_s `-f t .L,..r,Li z ;'-e..r iv ;v<2.1 Vie- c--t.z-J�e.�- ---0tlT!.e-G�. ✓L-Yy'.tiYvc u,�.. "t "S y . .. S _tom i_ c--Q---ii.. , acf-L U. --if 1 a / o4&i- 6L I AlJ/ 1. .. cse��wt7 : -- ± s 5 -i- : ! 71 I') u. J. 4 , -- - , 7i iLL rr yy y 1, � r% If V AAA efrof' 5-- p x `--1- 1L6 -41,,,i,• /1,E...: a v&4J+t w a c i c s;, ` y / t.cSFcS hl%tsi y;,t_[t,-y / / L,"37*` -- n,,c9r�i-i,. pi ... .5i 0 t Debra Street • 16495 Ledyard Rd. Platteville, CO 80651 Dear County Commissioners, When we purchased in Pelican Lake Ranch, we too were under the assumption that horse amenities were available or "soon to be available". I am on the equestrian committee and have been involved in working directly with the developer and our consultant, Holly Matt in order to develop a Master Plan for the community for future equestrian amenities. The entire project has been a battle as far as getting it complete. I feel like the developer expects me to make it all happen when in reality, it is the developer who should coordinate the project and manage the project. I am not a paid employee and this plan is a benefit to the developer, not myself. Everytime we get close to finishing the project something else gets changed and I feel like they make it impossible to finish a task and that they keep dropping the ball. If this equestrian master plan could be completed, that could be used very successfully in the marking of homes/lots at PLR. Every time the equestrian team needs something, it is a huge struggle. The money spent on other amenities compared to equestrian projects when we are supposed to be an equestrian community is ridiculous. We fought and fought for an arena (I believe • less than 20K) when other amenities range in the 100,000s+. We did get 75%of the jump course at Lake Christina restored at a cost of less than 10K and were told we could finish the other 10 jumps for around 5K. After there was an announcement for some legal action at the POA level the project was discontinued by the developer because she felt the relationships were no longer there with some members on the equestrian committee. A metro district amenity should have nothing to do with the relationships at a POA level. This jump course if properly completed and built with quality and integrity would bring potential customers to PLR. Also our equestrian consultant Holly Matt has always said from "day one" working with PLR that we are sitting on a "Goldmine" opportunity when it comes to equestrian homeowners and clients for the community barn and safe extensive riding trails and areas. Holly has also said there isn't anything else in Colorado with the potential and opportunity that PLR could offer horse owners and there is a need out there. I feel that when splitting the revenue allocation it should be 60/40. Why is the developer allowed to get so much more of our money for additional infrastructure each year when almost zero lots and/or homes are being sold each year. At the absolute very least it should be 75/25. Amenities are what customers come for, not developed lots or roads that have no activity on them at all. • Sincerely, EXHIBIT Debra Street g Rr Pra w 5P From: Rubi Hendricks • 16488 Fairbanks Dr. S Platteville, CO 80651 January 19`h, 2009 Re: BOCC Hearing January 20th 2009 To whom this may concern: I write this as an open letter regarding the BOCC Hearing. My husband and I came to call Pelican Lake Ranch home in 2005, our dreams of raising a family here were based on the future development of the community. The open space was important to us, but more important was the future amenities the developer offered. As time went by we were dumbfounded and aghast to discover that most of these amenities were not taking place and ridiculous covenants were set in place. We soon realized that the future of our community and home was not in the hands of the community but on the hands of a developer with no attachment to the place we call home. During the last year both my husband and 1 have been part of a group of home owners that support Mr. Hare's point of view during this hearing. One point that we would like to emphasize on is control of the community should be on the hands of the residents and not the developer especially for this community where the developer has shown only interest in their financial gain and has not focus on the needs of the • community members as a whole. We would like to for Pelican Lake Ranch to be the type of community that looks after their home owners and members, a place that we are proud to call home where our only child will grow and experience Colorado's open space. It is our belief that Pelican Lake Ranch can be a place in Weld County where people want to raise their kids, call home and enjoy the beauty of this area. We ask of you to listen to points Mr. Hare's is addressing in front of you. Unfortunately we are not able to attend this hearing due to hip reconstruction surgery. Sincerely, Rubi Hendricks 16488 Fairbanks Dr. Platteville, CO 80651 • EXHIBIT S d3ev& D✓a4..15P • Larry and Rosalind Bader 16495 Badminton Rd. S. Platteville, CO 80651 To the members of the BOCC, We have been residents of Pelican Lake Ranch since April 2004. During the last 5 years we have experienced poor communication and broken promises from the Developer in terms of amenities and overall community growth. For example, we were promised an Olympic size pool and state of the art clubhouse and we received a small, often time's overcrowded pool and a "community center" that the majority of the community does not have regular access to nor reflects a clubhouse. Historically, the developer has listened to a selected few individuals when creating and implementing plans. The fundamental structure with the developer having ultimate control does not facilitate open communication or a collaborative spirit in hearing ALL the resident voices. We find it unfortunate that even with this attempt at restructuring the disparity between • the developer and resident's interests still exists. We support Mr. Hare in his proposed revenue allocation of a 75/25 split. We'd like to see a priority placed on amenities and a limitation on the amount that can build in the infrastructure fund until growth resumes in our community. Sincerely, Larry and Rosalind Bader • EXHIBIT 17 Berl, Oran 511 Joel and Debra Moreland • 16498 Beebe Draw Parkway Platteville, CO 80651 January 20,2010 Dear BOCC, We are one of the original owners of PLR. We bought into this community on false pretenses. We were told there were going to be a substantial number of amenities that have yet to be built. We are concerned that the developer is no longer fully vested in this community. Although unrelated, we are fully supportive of the lawsuit against the developer and the Association related to the developer not paying dues on their lots. We have been paying our fair share of Association dues and they have not. We have not been treated fairly for many years and would like to see the residents have more say on what happens in our community. We believe that we as residents will spent the tax revenues from the district much more wisely. Call us with any questions at 785-2051. Thanks, Joel and Debra Moreland 16498 Beebe Draw Parkway • • • • EXHIBIT ✓JC Pia Qra iJS? John and Angie Powell • 16491 Ledyard Rd. S Platteville, CO 80651 January 20, 2010 Dear Board of County Commissioners, We have been long time residents of PLR, having bought one of the first lots in the community. We bought into the vision for this community that was laid out by the developer including many of the amenities that were promised. Ten years later we are still waiting for those amenities to be completed. We believe the amenities are necessary to entice families to move to our rural community and that our community would be much different if these promises were fulfilled. We were a part of the recall committee because we also believed that the Metro District needed resident leadership and that leadership was not being offered by the developer-led board. While the restructuring is a good start, it doesn't go far enough to give residents control over our future and doesn't place the necessary restrictions on how and when funds will be spent on infrastructure needs. We'd like the BOCC to consider several amendments to this plan including: • • More funds allocated initially to amenities • A greater percentage of tax revenue allocated to residents to control • Restrictions on how much revenue can accumulate in the developer's infrastructure fund and tying of the spending of this fund to future lot sales Sincerely, John and Angie Powell • EXHIBIT V Esther (3esick o Don Warden nt: Friday, January 22, 2010 5:25 PM o: Esther(3esick Cc: Bruce Barker; Barbara Kirkmeyer Subject: FW: One more :) You may want to make a note of this in the minutes of the Beebe Draw Metro District hearing for future reference, if Bruce is okay with doing so. Don Original Message From: Don Warden Sent: Friday, January 22, 2010 5:20 PM To: Barbara Kirkmeyer Cc: Commissioners; Monica Mika; Bruce Barker; Kim Ogle Subject: RE: One more :) Barb, I contacted MaryAnn McGeady for clarification and found out the following: As I suspected there was a typographical error in the presentation materials. The reference to "614" lots being completed at a cost of approximately $26,000,000 was the typographical error. The remainder of the presentation materials, the Service Plan, the financing plan, as well as the testimony provided by JL Walter Consulting and other experts, firreflect the approximate cost estimate of $26,000,000 to complete the 696 lots. The $26,000,000 is in 2009 dollars and is how much it would cost to complete the 696 lots in 2009. However, because construction will occur over time through 2035, the costs were spread out throughout the entire development period and include a 2% annual inflation. At a 2% inflation rate, this will result in approximately $36,000,000 in District costs. This is the basis for the request of $36,000,000 in bond capacity. I hope this helps. Have a great weekend. Don Original Message From: Barbara Kirkmeyer Sent: Friday, January 22, 2010 8:23 AM To: Don Warden Subject: One more :) During the Beebe Draw Hearing the Metro dist reps had a mistake in their handout. I didn't have time during the hearing ( and I was tired of listening to them! ) On the construction costs they had 614 units =$26M and on the Financial Assumption page they had 696 lots = $26M. which one was correct??? Also why are they bonding for $36M? Also on the handout. Thanks • EXHIBIT w 1 ere&Draw/ 3F ♦ • PLR Manager's Report Fishing docks are being installed featuring safety by DeWayne Colby railing and offer enhanced fishing positioning. _ Our newly completed 18 slot RV Lot is starting to fill up with folks gladly taking advantage of the J y,; Since the beginning limited number of first-six-months-free offer. of 2008, my main project i• in new amenities for resi- On the west side of Lake Christina,there's still debris left by the ditch riders that will be removed . f-. . dents has been the rede- and cleaned up. d fining and vast improve- ments at Lake Christina All the equestrian arena gates have new locks, and 'A, . ), and the surroundin area. there's a new water tank at the windmill,which g was repaired to provide fresh water for the horses. .I� t , Projects I'll be involved with for the rest of the L,f year will include creating the walking trails around 7 ` °i. the lake,a picnic shelter,parking areas, and " �'il'' additional horse trails, to name a few. DeWayne Colby, *' Metro District Samson Enjoy all the diverse amenities already completed Property Manager and look forward to the new ones on the way! i The dam between the two areas of the lake has been re-enforced with riprap and topped off with black granite to prevent washouts during times of knf heavy rainfall. New Fishing Dock it,*• The dam level has been raised to accommodate Photo courtesy of I'11' a�i "' seasonal high waters. De Wayne Colby y e• Grading has begun on the new parking lot and ° - area designated for the restroom facilities. a4''= RE!Developer Overview, continued from Page 1 reation Advisory Committee are in the design stages of a recreation facility that will provide tennis courts and a multi-purpose sports court(tennis, shuffleboard, basketball,field hockey) and a putting green to be located south of, and adjoining, our pool/playground area. We anticipate this plan to be brought to the District Board for review and approval by mid-summer. It will then go to Weld County for approval of plans and design. We also are in the final design stages for a master-planned equestrian center which will tie into and enhance existing trails and arena facilities. Such a long-term plan would restore a cross-country jumping course adjacent to Lake Christina, as envisioned for Pelican Lake Ranch when it was planned as a major Colorado equestrian center nearly 25 years ago. With these projects on the horizon, it is time again to survey our residents to determine their desires for future amenities and how to prioritize their development. Our last survey, which identified our pooUplayground complex as Priority No. 1,was completed in 2003. Finally, we should recognize the current Board structure of our metropolitan district. This structure has two of i five Board seats in District One held by community residents,who receive input from the community through a comprehensive series of advisory committees.Thiahomeowner/resident participation in district governance has been so successful that the Board is considering increasing the number of resident seats on the Board. We encour- age residents to become involved and to advise the Board if they are interested in serving. - ' —B w arms Metropolitan District has been, and remains, a leader in Colorado in resident participation in "'district operations. 'd 4t9LZ£9Z09 sJeuiweS db3 I &eege prawSp y PELICAN LAKE RANCH '' �s OR - June 2008 _'5,' ' J_-,', U,U,i, PER 1_,a :`ri v` 'r using existing revenues and without increasing debt. by Christine Hethcoch Devefopment Manager Our district is not only fiscally solid, but fiscally responsible as well. As we move into warm, summer months at We are aggressive in paying down our debt. In Pelican Lake Ranch, let's take a moment to reflect 2007, for instance,we retired $500,000 in revenue on our community and the unique partnership that notes that originally were used to purchase raw water exists between it and Beebe Draw Farms Metropolitan rights to provide community water service.We paid District. the notes off ahead of schedule. I say "unique" because the word"partnership" Our remaining debt, in the form of general obli- does not usually come to mind when one talks about a gation bonds used to provide for and maintain corn- special district and the people it serves. Ordinarily, we munity infrastructure, will be paid off completely in are more prone to think that a district provides water 2018. We are currently half way through our pay- and roads to its residents and leave it at that. ments. The revenues that enable us to pay for these At Pelican Lake Ranch, however, there is much existing obligations also enable us to look to the more. While it's true that the metro district exists to future to continue to maintain existing amenities, and •rovide customary services such as water, roads and to plan for and invest in new community amenities. asic infrastructure,here at Pelican Lake Ranch we Most importantly, we are able to do this within have much more.And that's what sets us apart from our current budget and without increasing debt or other developments along the Front Range and raising district taxes to residents. Colorado. Looking forward,the metro district and the Rec- We enjoy a beautiful community center, pool, Continued on Page 4 playground and community barbeque. In addition,we _ are fortunate to have a fishing lake,equestrian facili- l ties,acres of open space,walking and horse trails, a In this issue nature center, a boat dock and marina. For a complete Page 2 From the Chairman list of our amenities, please see "Community Facts" Pool News I on Page 5 of this newsletter. Page 3 Amenities Survey What makes all of this so unique, however, is that all of our amenities have been planned, developed Fishing Committee News and provided through the joint efforts of Pelican Lake Page 4 PLR Manager's Report residents and the metro district. It is this partnership Page 5 Community Facts that has been extremely important to the overall Page 6 PLR Realtor, Miles Lane development of our community, and is arguably one New Metro Board Member of the most unique partnerships that exists in Colorado I Page 7 Recreation Committee News between a metro district and the residents it serves. Metro Board Members his equally important to know that at Pelican 1 Upcoming Events Lake Ranch,these amenities—and amenities on the Page 8 Metro Advisory Committees drawing board—have been provided by the district I b79LZ£9Z09 �d d SaeuiweS deli dz£:£0 80 0£ unr Hello