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Home My WebLink About20090412.tiffEsther Gesick From: Sent: To: Subject: Attachments: Record of roceedings - Nov. 3. Bruce Barker Wednesday, January 07, 2009 3:35 PM Esther Gesick FW: Beebe Draw Farms Metropolitan District Record of Proceedings - Nov. 3 #1-10 (00152111).PDF Original Message From: Kathryn Garner [mailto:kgarner@CCCFIRM.COM] Sent: Friday, January 02, 2009 4:32 PM To: Bruce Barker; Paul Cockrel; MaryAnn McGeady; Richard N. Lyons Cc: Cyndy Giauque; Kristin Bowers Subject: RE: Beebe Draw Farms Metropolitan District Attached please find documents numbered 1-10 from the November 3rd meeting. Kathryn L. Garner Collins Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 303.986.1551 Telephone 800.354.5941 Toll Free 303.986.1755 Facsimile PRIVILEGED COMMUNICATION. This email may contain attorney -client or otherwise privileged and confidential information intended only for the use of the individual or entity named above. Dissemination, distribution or copying of this communication is strictly prohibited. If you are an attorney or law firm, consult Title I of the federal Electronic Communications Privacy Act of 1986. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error and delete this email. ATTACHMENTS. Although this email and any attachments are believed to be free of any virus, the files should be virus scanned before opening them. Original Message From: Bruce Barker [mailto:bbarker@co.weld.co.us] Sent: Monday, December 22, 2008 10:32 AM To: Paul Cockrel; MaryAnn McGeady; Richard N. Lyons Cc: Cyndy Giauque; Kathryn Garner Subject: RE: Beebe Draw Farms Metropolitan District Paul, MaryAnn and Dick: In our discussion today regarding the procedures for the appeal on the exclusion '`2 -C`//2 for the above -referenced DisTrict, we confirmed the followingg chedule: Objection to jurisdiction (possible that none of the Appellants filed a written objection with the District Board) must be filed with the Board of County Commissioners (BOCC) by 3 p.m., 12/24/08. If such an objection is filed with the BOCC, then Dick will have until 12/31/08 to respond. The BOCC will consider that issue at its Board meeting on 1/5/09 at 9 a.m. Record of the District Board hearing must be filed with the BOCC by 5 p.m., 1/5/09. Appellant's brief shall be filed with the BOCC by 5 p.m., 1/16/09. Appellees' response briefs shall be filed with the BOCC by 5 p.m., 1/23/09. Appellant's reply brief shall be due by 5 p.m., 2/3/09. The BOCC hearing on the matter shall be 2/11/09 or 2/18/09 at 10 a.m. Upon further reflection, I would prefer 2/18/09, so that the BOCC has a little extra time to read through all of the written materials. This appeal is not de novo, but, rather, is on the record of the proceeding before the District Board. No evidence outside that record shall be considered. No public testimony shall be heard by the Board. Thanks for your help on this! Have a Merry Christmas and Happy New Year! Bruce. • RECORD OF PROCEEDINGS BEEBE DRAW METROPOLITAN DISTRICT NO. 1 ("DISTRICT NO. 1") EXCLUSION OF REI LIMITED LIABILITY COMPANY ("REI') PROPERTY November 3.2008 District No. 1 Meeting: 1. Notice & Agenda with Certification of Posting 2. Amended Agenda 3. Attendance Sheet 4. Nov. 3, 2008 Letter from Christine Hethcock on behalf of REI re 39 -acre Directors' Parcel & Revised Legal Description 5. Oct. 31, 2008 Letter from Richard N. Lyons, II, Bernard Lyons Gaddis & Kahn, objecting to the Exclusion of REI's Property 6. Nov. 3, 2008 Letter from MaryAnn McGeady, McGeady Sisneros, P.C., Responding to Dick Lyons's October 31, 2008 Letter 7. REI's Power Point Presentation 8. Disclosure of Potential Conflict of Interest from Christine Hethcock 9. Disclosure of Potential Conflict of Interest from Daniel R. Sheldon 10. Minutes of Meeting 11. District No. 1 Resolution Approving & Authorizing Execution of the Amended & Restated IGA & Related Documents 12. District No. 2 Resolution Approving Exclusion of Property and Authorizing Execution of Amended & Restated IGA 13. Board Order for Exclusion of REI's Property * Also included in Board Order of Exclusion of REI's Property NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 1. NOTICE & AGENDA WITH CERTIFICATION OF POSTING NOTICE OF SPECIAL MEETIN• OF THE BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO.1 NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Beebe Draw Farms Metropolitan District No. I ("District"), Weld County, Colorado, has been scheduled for Monday, November 3, 2008 at 6:00 p.m., at the Pelican Lake Ranch Community Center, 16502 Beebe Draw Farms Parkway, Platteville, Colorado. AGENDA 1. Disclosure of any potential conflicts of interest. 2. Approval of minutes of August 19, 2008 Coordinated Special Meeting. 3. Final action of approval or denial of REI Limited Liability Company Petition for Exclusion of Real Property. • Board discussion. • Board approval or denial of Petition. 4. Discussion and approval of Amended and Restated Intergovernmental Agreement between District and Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"), together with related conveyance documents. 5. Public hearing on exclusion of District and District No. 2 real property from District per Petition for Exclusion attached ("D1D2 Petition"). 6. Discussion and final action of approval or denial of D1D2 Petition. 7. Schedule 2009 budget hearing. 8. New business. 9. Public comment. 10. Any other matter that may come before the Board. This meeting is open to the public. Board members may participate telephonically. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By /s/ Thomas A. Burk Secretary (00139413.130C4 • • NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 2. AMENDED AGENDA NOTICE OF SPECIAL MEETING OF 1'HL BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Beebe Draw Farms Metropolitan District No. 1 ("District"), Weld County, Colorado, has been scheduled for Monday, November 3, 2008 at 6:00 p.m., at the Pelican Lake Ranch Community Center, 16502 Beebe Draw Farms Parkway, Platteville, Colorado. AMENDED AGENDA 1. Disclosure of any potential conflicts of interest. 2. Approval of minutes of August 19, 2008 Coordinated Special Meeting. 3. Final action of approval or denial of REI Limited Liability Company ("REI") Petition for Exclusion of Real Property. • Acceptance of REI request to modify legal description of exclusion parcel. • Board discussion. • Board approval or denial of Petition. 4. Discussion and approval of Amended and Restated Intergovernmental Agreement between District and Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"), together with related conveyance documents. 5. Public hearing on exclusion of District and District No. 2 real property from District per Petition for Exclusion attached ("D1D2 Petition"). 6. Discussion and final action of approval or denial of D1D2 Petition. 7. Schedule 2009 budget hearing. 8. New business. 9. Public comment. 10. My other matter that may come before the Board. This meeting is open to the public. Board members may participate telephonically. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By /s/ Thomas A. Burk Secretary (00140202.DOC /} NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: #3. ATTENDANCE SHEET IP ID BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 NOVEMBER 3, 2008 BOARD MEETINGS ATTENDANCE SHEET NAME COMPANY (or "Property Owner/Resident") DO YOU INTEND TO SPEAR DURING PUBLIC HEARING ON DISTRICT PROPERTY EXCLUSION? ("Yes" or "No") ** t 3Gnis-, 4' GcJ Mire. Una\ in (3 �' oto6 67-T ow/00 ✓ i 4b' 0014 Ailise(i ar/l eziszG�t, 444 2044' 14(4 itn 0c vi Pva,51��n� Ye s �S1 e /�6 y 1�n► G� re - l e.s / _ istarykr.C cPin 1�1 (((��#w0 v 4 t Tali guy/1w- ‘ , Irweuf._ bwar 7%x,1. , S-. 6V/1-1Ctet__ - '`; PIA Na oz --r--- to ** Speakers will each be alloted 4 minutes of time. NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 4. NOV. 3, 2008 LETTER FROM CHRISTINE HETHCOCK ON BEHALF OF REI RE 39 -ACRE DIRECTORS' PARCEL & REVISED LEGAL DESCRIPTION November 3, 2008 VIA HAND DELIVERY Beebe Draw Farms Metropolitan District No. 1 Board of Directors Collins, Cockrel & Cole 390 Union Blvd. #400 Lakewood, CO 80228 Re: REI Limited Liability Company Petition for Exclusion Dear Board: As you know, on or about October 7, 2008, REI Limited Liability Company ("REI") submitted a Petition for Exclusion ("Petition") with the Beebe Draw Farms Metropolitan District No. I ("District") requesting the District exclude from the boundaries of the District the real property described in Exhibit A of the Petition ("Initial Exclusion Property"). The Initial Exclusion Property consisted of approximately 2,266 acres of undeveloped property. Since the filing of its Petition, REI has become aware of certain issues related to ownership and title of approximately 39 acres of property contained within the Initial Exclusion Property. REI is currently working with its legal counsel and the title company to resolve all ownership issues as soon as possible. In the meantime, REI requests that the Initial Exclusion Property be modified to except approximately 39 acres of property, as more particularly set forth on Exhibit A attached hereto and incorporated herein by this reference ("Excepted Property"). Accordingly, REI respectfully requests that the District grant its Petition, as modified, to exclude that property set forth on Exhibit B attached hereto and incorporated herein by this reference (which represents the Initial Exclusion Property less the Excepted Property). At such time when all ownership and title issues have been resolved, REI will submit a petition to the District to exclude the Excepted Property. Very truly yours, - � a Christine Hethcock REI Limited Liability Company Manager 3600 S. Logan, Suite 200 Englewood, CO 80113 Enclosures cc: Vince Toenjes, Esq. McGeady Sisneros, P.C. (00135859.DOC v9) NOVEMBER 3, 2008 DISTRICT NO.1 MEETING: # 5. OCT. 31, 2008 LETTER FROM RICHARD N. LYONS, II, BERNARD LYONS GADDIS & KAHN, OBJECTING TO THE EXCLUSION OF REI'S PROPERTY Richard N. Lyons, II Bernard Lyons Gaddis & Kahn Eve I. Canfield Jeffrey J. Kahn .--. Scott E. Hoiwick John W. Gaddis A Professional Corporation Attorneys and Counselors Matthew Machado Bradley A. Hall Madolina Wallace -Gross Steven P. Jeffers Chad A. Kupper Anton V. Dworak Adele 4 Reinter Catherine A. Tallerico Daniel F. Bernard Special Counsel Senior Counsel October 31, 2OO8 Via a -mall: pcockrel@cccflrm.com Paul R. Cockrel Collins Cockrel & Cole, P.C. 39O Union Boulevard, Ste. 4OO Denver, CO 8O228-1556 Re: Beebe Draw Metro District No. 1 Dear Paul: As you know, I represent a group of resident and taxpaying voters within Beebe Draw Metro District No. 1 who have flied recall petitions against three of the board members of that district. My clients now strenuously object to the proposed exclusion from of approximately 2,226 acres that are presently within District No. 1 (and also located within Beebe Draw Metro District No. 2). First, the proposed mass exclusion violates the express terms of the 1999 Consolidated Service Plan ("Plan") In the following particulars: o Page 1O of the Plan provides: "District No. 2 will contain approximately 3,408 acres of platted and unpiatted property owned by the Company and located completely within the boundaries of District No. 1, excludingthat property in the first phase of development in Filing No. 1." o Page 11 of the Plan provides: In accordance with the procedures set forth In the District Act, property within each new phase of the Development will be excluded from District No. 2, when such property has been platted, and lot sales have been commenced by the Company or other developers." o Page 13 of the Plan provides: "As development occurs within District No. 2, improved property will be excluded from. the District, and the total assessed valuation of property within the District will decrease." o Page 14 of the Plan provides: "The responsibility for payment of a portion of the costs of public facilities will be shifted Incrementally to all property within District No. 1 as development occurs, and the total assessed valuation of property within the District Increases." 515 Klmbark Street • Second Floor • P.O. Box 978 • Longmont, CO 80502-0978 Phone: 303-776-9900 • Fax: 303-413-1003 • www.blglaw.com. red 0.4 Paul R. Cockrel October 31, 2008 Page 2 • Bernard Lyons Gaddis & Kahn A Professional Corporation rp � Attorneys and Counselors Clearly, the exclusion of this large tract of land is in violation of the Service Plan which contemplates that all property remain In both districts until the lots are platted and marketed, at which time they are removed from District 2 through the normal exclusion process which does not require Plan amendment, either by statute or under the terms of the Plan. Here, such a massive exclusion constitutes a material modification of the Plan thus necessitating service plan amendment as set forth in Sec. 32-1-207, C.R.S. In addition, the effects of the proposed exclusion are in violation of the Service Plan because the exclusion is dependent upon the execution of a new Intergovernmental Amendment (IGA), the draft of which you courteously provided to me on October 31. This proposed requires hat the Board of each year s determined m ned bytDist District No. 2. hattectors of District No. 1 impose a Requiired Mill Levy consists of thale y "Required needed to �n pay the debt service on the existing bonded indebtedness as well as any obligations incurred by District No. 2, plus all administrative expenses of District No. 2. The IGA specifies that the Required Mill Levy for District 1 will be the same as that of District No. 2, less the debt service component for the existing Indebtedness (because that property remains liable for such debt component even after exclusion). District No. 1 Board of Directors' only discretion with respect to lowing the Required Mill Levy consists of a determination as to whether the mill levy to be imposed is consistent with the Plan and the IGA. Thus, all legislative discretion would be stripped from District No. 1% Board. Such a limitation on that Board's discretion is in violation of the legal maxim first recognized in CO of Denver v. Hubbard, 17 Colo. App. 346, 68 P. 993 (1902) that a governmental body can not surrender its legislative powers. Stated differently, one board can not bind future boards with respect to the discretionary exercise of legislative powers. See, Keeling v. City of Grand Junction, 689 P.2d 679, 680 (Colo. App. 1984), (setting of salaries is a legislative function that can not be restrained by contract), and Bennett Bear Creek Water District v. Denver, 928 P.2d 1254, 1269-1270, (Colo. 1996) (contracts of a gaty and overnmental entity cannot divest Its legislative powers); and see, also, Pear- Mack Enterprises Co. v. Coal Co. v. aty of Colorado Springs, County9 P d ofDenver, 8 (Colo APp.1994explai explaining that proprieand tary functions are exempt from rule of non -surrender of legislative or police powers). Here, the removal of all legislative discretion In establishing the appropriate mill levy would be a violation of this legal concept. For these reasons, we urge that the Board of Directors seek approval of Plan amendment by the Weld County Commissioners prior to this massive exclusion; and, secondly, that It reject the draft IGA F:1Cl1ENT81R%RC1CORRu0081001 L•COCKRELOOC 70/811081:I1 PM Bernard Lyons Gaddis & Kahn A Profestional Corporation Attorneys and Counselors Paul R. Cookrel October 31, 2008 Page 3 as being an Illegal restriction on the legislative discretion of current and future boards. Very truly yours, BERNAROtYONS CADDIS & KAHN. PC and N. Lyon9, II rlvons@bl&law.com cc: Recall Committee • Mary Ann McGeady F,1OLI!N7$%Ifl C ORR@0661061 L-000RReL.000 1081/06/67 PM NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 6. NOV. 3, 2008 LETTER FROM MARYANN MCGEADY, MCGEADY SISNEROS, P.C., RESPONDING TO DICK LYONS'S OCTOBER 31, 2008 LETTER • McGEADY SISNEROS November 3, 2008 VIA EMAIL AND U.S. MAIL Paul Cockrel Beebe Draw Farms Metropolitan District No. 1 Collins, Cockrel, & Cole 390 Union Blvd, #400 Lakewood, CO 80228 Re: Beebe Draw Metropolitan District No. 1 M%oadySbneros, P.C. 450 E. 17th Avenue, Suite 400 Denver, Colorado 80203-1214 303.592.4380 tel 303.592.4385 fax www.mcgeadysisneros.com Dear Mr. Cockrel: As you know, this firm represents REI Limited Liability Company ("REI") with regard to certain matters before the Beebe Draw Farms Metropolitan District No. 1 ("District No. 1"). We are in receipt correspondence from Mr. Richard Lyons to District No. 1 dated October 31, 2008 regarding the exclusion from the boundaries of District No. 1 of certain property owned by REI as well as the proposed amendments to the Intergovernmental Agreement between District No. 1 and Beebe Draw Farms Metropolitan District No. 1 ("District No. 2, and together with District No. I, the "Districts") dated August 8, 2001 ("Original IGA"). We respectfully disagree with the conclusions set forth in Mr. Lyons' letter that the exclusion and the amendments to the Original IGA are material modifications to the Consolidated Service Plan ("Service Plan") requiring a service plan amendment. On or about October 7, 2008, REI submitted a petition to exclude approximately 2,200 acres of its undeveloped property ("REI. Property") from the boundaries of District No. 1, which petition was heard at a public hearing held on October 20, 2008. At the public hearing, REI presented evidence that the exclusion of the REI Property was in the best interests of the REI Property, District No. 1 and the surrounding development as a whole and that the exclusion of the REI Property and amendments to the Original IGA more effectively and efficiently implement the requirements and obligations set forth in the Service Plan. The purpose of the Service Plan was to create a dual district structure in order to provide a more efficient administration of services and facilities necessary to serve the Beebe Draw Farms and Equestrian Center ("Development"). The Service Plan specifically provides that District No. 1 is to function as the taxing district primarily responsible for raising revenue to pay the operating, capital, and debt service of the Districts and that District No. 2 would be responsible for administering and operating both Districts, furnishing all District services, and acquiring and installing all public facilities and improvements needed to serve the Development. Furthermore, (00135902.DOC v:1) re test Paul Cockrel November 3, 2008 Page 2 the Service Plan requires the Districts to enter into an intergovernmental agreement clarifying these respective responsibilities and functions. The exclusion of the REI Property does not alter the provisions of the Service Plan cited by Mr. Lyons in support of his conclusion that the exclusion violates the Service Plan. In particular, Mr. Lyon cites language that District No. 2 will contain approximately 3,4Q8 acres of platted and unplatted property, that property within each new phase of the Development will be excluded from District No. 2 when such property has been platted and lot sales have been commenced by the Company or other developers, and that as development occurs within District No. 2, improved property will be excluded from the District, and the total assessed valuation of property within the District will decrease. The exclusion of the REI Property and the amendments to the Original IGA will not modify these provisions of the Service Plan — District No. 2 will continue to contain approximately 3,408 acres and platted property will be excluded from District No. 2 and included into District No. 1 as development occurs (see Section 4.4 of the proposed Amended and Restated Intergovernmental Agreement). Furthermore, page 11 of the Service Plan specifically provides that the Board of Directors of the Districts will have complete discretion to approve inclusion or exclusions without processing an amendment of the Service Plan. In his letter, Mr. Lyons specifically objects to the proposed amendments to the Original IGA requiring District No. 1 to impose a mill levy and remit certain revenues therefrom to District No. 2. The Original IGA obligates District No: 1 to impose the "Required Mill Levy," which is defined in the Original IGA as the mill levy required to be imposed by District No. 1 at the rate to be determined annually be District No. 2, and to remit the revenues from the Required Mill Levy to District No. 2. The proposed Amended and Restated Intergovernmental Agreement does not modify this District No. 1 obligation. Additionally, the requirement that District No. I impose a mill levy and remit revenues to District No. 2 is a specific requirement of the Service Plan (see provisions below). Contrary to Mr. Lyons' conclusion that such requirement constitutes a material modification to the Service Plan, the failure by either District to perform the responsibilities set forth in the Service Plan, including the imposition of the mill levy, constitutes a material modification for which the prior approval of the County shall be required. The following provisions of the Service Plan support the exclusion of the REI Property and the amendments to the Original IGA: 1. Page 4 • "...the existing District [District No. 1] will function as the taxing district primarily responsible for raising revenue to pay operating, capital and debt service expenses of the Districts..." 2. Page 4-5 • "District No. 2 will be responsible for administering andoperating both Districts, furnishing all District services, acquiring and installing all public facilities and Paul Cocicrel November 3, 2008 ' Page 3 improvements needed to serve the Development, and providing intermediate financing for future District projects, as necessary." 3. Page 5 • "This Service Plan defines the respective responsibilities and authorities of, as well as the limitations and restrictions on, the Districts." • "The failure by either District to perform its responsibilities hereunder shall constitute a material modification pursuant to Section 32-1-207, C.R.S., for which the prior approval of the County shall be required." 4. Page 6 • "District No. 1 will be responsible for levying property taxes and raising other revenue needed to pay operation and debt service expenses, to fund capital improvements, and generally to support the Financing Plan." • "District No. 2 will be responsible for administering and operating the Districts, furnishing all services, acquiring or installing the public facilities and improvements needed to serve the Development, and providing intermediate financing for future District projects, if necessary." "Because of the interrelationship between the Districts, intergovernmental agreements will be executed by the Districts clarifying the respective responsibilities and the specific functions and services to be provided by each District." • "The intergovernmental agreements will be designed to assure the orderly provision of public services and facilities and the economic administration of the Districts' fiscal affairs..." 5. Page 6-7 • "The organization of District No. 2 as the service district...and the re -structuring of District No. 1 as the taxing district to raise property taxes and other revenue required to pay the costs of operations and debt service will create several benefits for the Development and for the County. In general, these benefits are: (i) coordinated administration of construction and operation of public improvements and delivery of facilities and services needed for the Development in a timely manner; (ii) maintenance of uniform property tax levies and reasonable tax burdens on all property within the Development. through proper management of the financing and operation of public improvements; and (iii) assurance that all public improvements are constructed and paid for in a timely and cost effective manner." Paul Cockrel November 3, 2008 Page 4 6. Page 7-8 • "The dual district structure will assure that the construction and operation of each phase of public facilities will be completed in a manner consistent with the Company's long-term development plan." 7. Page 8 • "The use of District No. 2 for financing and constructing each new phase of public improvements needed within the Development and for managing the public improvements and operations...will facilitate the implementation of the Financing Plan, even if timelines change, and will assist in assuring the coordinated provision of services throughout the Development." 8. Page 9 • "Intergovernmental agreements between the Districts will assure the property tax levies remain reasonable and uniform throughout the Development." 9. Page 10 • "District No. 2 will have the power to impose property taxes only within its legal boundaries but will be authorized to provide public services and facilities throughout the Districts..." 10. Page 11 • "The Board of Directors of the Districts will have complete discretion to approve inclusion or exclusions without processing an amendment of this Service Plan." 11. Page 12 • "In order to minimize the proliferation of governmental activities, District No. 2 will operate and maintain the public facilities and improvements within the Development in accordance with intergovernmental agreements with District No. 1." • "No resident population is anticipated within District No. 2." 12. Page 13 • "The Districts may obtain financing for the public improvements, if necessary, through the issuance of general or limited tax obligation bonds or other debt instruments of District No. 1, including the issuance of notes or tax pledges to District No. 2 pursuant to the intergovernmental agreements between the Districts..." Paul Cockrel November 3, 2008 Page 5 • "Use of an alternative financing plan will not require an amendment of the Service Plan..." 13. Page 16 • "District No. 2 will be organized to assure that public facilities and improvements needed to serve subsequent phases of the Development will be financed and installed in a timely, efficient, and economical manner as development occurs." 14. Page 17 • "For purposes of the District Act, the making or amendment of the intergovernmental agreements shall not constitute a material modification of this Service Plan. They will, however, be binding and enforceable agreements between the Districts regarding the implementation of the authorities set forth in this Service Plan." 15. Page 27 • "As noted in this Service Plan, the relationship between District No. 1 and District No. 2, including the terms for financing, constructing, and operating the public services and improvements needed to serve the Development, will be established in one or more intergovernmental agreements." 16. Page 27-28 • "The intergovernmental agreements will provide comprehensive procedures and requirements for the payment of: (i) the capital costs of the public improvements, including the payments to the Water District and other governmental agencies; (ii) administrative, operational and maintenance expenses of the Districts; (iii) costs of issuance of District bonds, debt service, and related financing expenses of the Districts; and (iv) for the construction, acquisition, operation and maintenance of all facilities and services needed for the Development and the administration of District affairs by District No. 2." 17. Page 28 • "District No. 2 will be responsible under the intergovernmental agreements for contracting for and supervising the acquisition and construction of all public facilities and improvements needed for all subsequent phases of the Development..." • "In addition to payments for financing a portion of the public improvements within the Development, District No. 1 shall pay District No. 2 for operating and maintaining the improvements and administering the affairs of the Districts and any major repair or replacements of the improvements ("service costs"). District No. 1 shall pay the service costs in accordance with the terms of the intergovernmental agreements." • • Paul Cockrel November 3, 2008 Page 6 18. Page 33 • "The intergovernmental agreements between the Districts will provide that the obligation of District No. 1 to pay District No. 2 for the costs of financing the public improvements needed for the Development and for operating expenses incurred for the provision of services within the Development will constitute voter -approved financial obligations of District No.1 " • "District No. 1 may issue revenue or bond anticipation notes to fund the costs of the public improvements until such times as it is able to collect revenues from District No. 1..." 19. Page 34 • "District No. 2 may issue revenue anticipation notes or bonds secured primarily by the revenues generated under the Developer Fee Agreement an property tax revenues collected by District No. 1. District No. 1 may issue notes or pledges to District No. 2 secured by property tax levies to fund the acquisition and installation of other major facilities needed to serve the Development." While the Service Plan did initially contemplate the existing structure whereby all property within the Development is contained with District No. 1 and District No. 1 imposes a mill levy and remits the revenues from such mill levy to District No. 2, the Service Plan also contemplates and recognizes that alternate financing structures may be implemented through intergovernmental agreements without constituting an amendment to the Service Plan. The Service Plan specifically authorizes District No. 2 to impose a mill levy within its boundaries and while recognizing that District No. 2 is not expected to have a separate property tax levy, it does not prohibit one. The alternative financing structure being proposed through the exclusion of the REI Property and the amendments to the Original IGA whereby District No. 1 continues to impose a mill levy and remits such revenues to District No. 2 and District No. 2 imposes its own mill levy in order for District No. 2 to provide for the financing and installation and operation and maintenance of the public improvements, is well within the authority and obligations set forth in the Service Plan. Furthermore, it is our position that the proposed alternative financing structure better implements the provisions of the Service Plan by assuring that public facilities and improvements needed to serve the Development will be financed and installed in a timely, efficient, and economical manner. MaryAnn McGeady cc: Christine Hethcock Vince Toenjes, Esq. Mr. Richard Lyons, Esq. Paul Cockrel November 3, 2008 Page 7 Finally, the case law cited by Mr. Lyons is unpersuasive and does not support the positions he has asserted. Very truly yours, MCGEADY SISNEROS, P.C. Pemtivi elow. v\.• Vtfrefle o r • • NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 7. REI'S POWER POINT PRESENTATION a) ) in a) a) m 4- E w O O E O > CO O - (7) -t LL. a m Li) O X O O O wa. o2z U .L rn C co ... • • a) E "E N N D co u_ o _a a) a) co a) >1 (0 L so O O a .,.� O -z)L a a) _ (C3 2 a) L -F ,38 4— O w 0 92 o >, a) co C 0 -c U 10 > > _- lJ la) ca ca -X -o X a (0 a < O Q E O a) 0) C .up 0 00 O i 0 4- cp CD CO r a) a) �-- co O o O cu a : a a ca o L a 0 p U a) c : co w VI 0_ N W �fill;i�iilbi��llifil��l1l�!liilllill� ....,., • • 1 0 '--C W iCC'�N 4 ID CO E � G ' co W -- V) _ � o O03 \ ice. W o .yam Ote; ,_ a °' � \ o 8 .-; L o C N0E }+ m , N — C.o � `:o c= . 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V CD (13 Q a) W E to 0 O> CT ET 0 0 _O c o C > LL 7:3 cll X "� N tt Cr a 1:t ,U or C Q a--1 o ° >, o 0 N 4)E U) o O 2 > Lz C� (13 •&-z OO - U N L 0 CD -O O O U C ZZ (f) (6 U U a) Y co p .0 .U) 2z oo cv D CT E cQ L C ) O 1E O 0 -t .4_, O nE,, ° > ifs) w a. 2 O.O 0 N a >, j .- C --c 0 o (i5a) r > �o O 2UE 0 L E. CD •— E_c co a) (130 O °TY= O Q U�— p a .- (I _Cre C CQ C L N +- O N u) U) O Zc = X r -0CaEO CO U) o_01_20W and District No. 2 6 Z U 11) 0 r U) a- w c a) owN >'E t U) Oct /L O 1J .{-I U) r C./) O L CO 0 U) > C W r C ca O �_ "(f) J cu it O c a ---- • w VJ - E c O a) CD .- CD .— O 0 (DC) c•o cu 2 Q. C 4=. • C U CD 15 C Q Ci L -C„ O L O O C Q C (6 ea C > U) U) -O C N C.� I- M W • O) _ L O c 5 O .c Ccu E r 3 0 t -D T O -O -a ob.- O O- N z O O_ .- E (,) o "C:c if E a i O (i5 (n 4-0Q .— (U Q L CO ED_ N O "o> o0CN a) p O--3 'S o� c6 -O O_ c.-- +�0 L"z E O).E >N OO L Q U (� C S C .,a d) N O•%0. C U L O co =— CO a) 0 w >� •— C9 E w E 2 L Nin ❑ N>< au 0 a. a-+ C as CD — (a co .l C6 +'4- — far R3 O c t6 4O c6 °.off-+ O O O C6 N Z fn Ez7 (f)c ® a) O O H V O 2 N 92�.C) U)n O f_) C U))(U U) 0 f/) < oa- ❑U QE < Q® • • C O U X w O ta3 1)) w c _O 0 CO -O Q C c O O CO t (0 > O -O 2 a O Ca -'▪ _ OQ0) E 0 �- - a o O c0 c O 0 5 ) � • c cr -0 T_ "S c o O 000 _oz Ca) IT; .1E5 c" c 4- -0 =_c >,4- >, O c o o ao °co E oct OoE O nCI_ oo -o 0 O c - _a C6 -E -o •0 0 „LT_ �, O •• co .= w Q)3ct >,�1�-1-ca •- Q) T c �0' >, (13 ≥ 0 fltD a "s -5, c 0- � QD .—o �c� c o. - o O_• 7., u�cn�''o 05000 F>-c�-maco o.�-0 r� c 0 Cr a 0)0 CD co O O -I - -� *-C- _FJ V ) -� O w �>N w>,0 wa)o0 �C' CO c 92s.P. coo coC6x-- W-caW U U Q)0 c C0 0 C -' 0 c > O O E 6 z .1= -1-5cv . O _ z 0 ‘150 a_ (0 2 u) Q • • NOVEMBER 3, 2008 DISTRICT NO.1 MEETING: # 8. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST FROM CHRISTINE HETHCOCK Di i1O: The Board of Dimmers either Beebe Draw Farms Metropolitan District Nos. I and 2 and the Secretary of Stto FROM: Christine Hetheock RE: Disclosure of Potential Conflict of Interest or Pdvate Interest I. Christine Hetbotck, am member of the Board of Directors of the Beebe Drew Finns Metropolitan District Nos. I and 2 (the "D1Nricts"). In amides) with Section 24-18-109(3)@), Section 24-18-110, Section 32-1-902 and Seeds 18-8-301, C.R.4., thereby give notion to the Districts and the Secrecy of State that to the best of my knowledge, infeension and belief as Of the day of this writing, l have a potential conflict of Interestor potential personal, fnwncial, private or other intones that may impinge on my tiduciery duty end the public ma with maps to the following issue, concoct, purchase, payment or other powniery tmwotion to be considered at a me edng of the Board of Dimotess of the Districts on or after (rioter Do, a. See the. Agendas attached hereto. 1. in connection with the above -described transaction, I hereby give .office to the Districts and the Secretary of Slate that I have the fellow ng financial Semi: (a) I have an ownership interest in the following businesa(es): An oweenhip interest in Gibraltar Compaaiss, LLC, width Si an ownership Interest in PLR, LW, which has art ownership intent in REL;. LLC. The approximate amount of my financial interest is described as follows:Hume have a nnn tajority ownership interest in Gibraltar Campania, LLC (b) I have the following creditor interest in the following Solvent business(es): NIA The approximate amount of my financial itttaest is described as follows: NIA (c) Ian employed or am negotiating ibremplooyment with the following business(es): 1 ant an owner ad taaawger of Gibraltar Companies, LLC. Ie013irernoc •:11 The approximate amount of my financial interest is described as follows: Variable, based upon value of assets and distribution made per sty operetta; agreement. (d) !have the following interest in real or personal property: I have so undivided tads interest to rattan not property located within the boundaries of the District. The approximate amount army financial interest is described as hrllowe: Payment of ad Some property tare. (e) I own the fbitowing undeveloped land, which constitutes at leant twenty percent (20%) of the territory Included lathe subject Districts: REI, LW owns property within the District*. The approximate number of acres: 2,650 (f) I have the following loan or debtor interest in the following: Gibraltar Compealn, LW is a lender to REt, LW. The approximate amount of my financial interest is described as follows: Sec response to 1(a) above. !have the foibwiag directorship or ofiicerohip in the following business(es): Manager of RBI, LLC, a property owner within the boundaries of the Districts. The approximate amounn of my fi na solal interest is described as follows: See response to t(a) above. 2. In connection with the abave-doscribed transaction. I hereby give Notice to the District and the Secretary of State that I provide services as follows: (a) Services Provided: None (b) To Wham Service Provided: None (e) ?tepees: None (d) Time Period: None (e) Compensation Received or Nature of Interest: None 3. In accordance with section 24-I ft -109(3)('). C,R.S., and in comteetlon with the above -described transaction. I hereby give notice to unc Districts and the Secretary of State that I have a personal or private interest as described below: None other than previously disclosed above. tolniaN7.00C rII 1 4, Inaccordance with Section zaiSall( Ixbxfcm, Ihereby give notice to dm Districts and the Secretary of Mate that I have apereoner Insist in the contract described above and being made by me in my official capacity or by the Hoard of DIroeteft of which I run a member. A.deeaipdon *fray personal interest in the contract is as follows: Name ether thee previously dbtldsed above. 5. In c nneccion with the above -,described iranaaolon, t hereby give notice n the Districts and dm Secretary of State that I have the following ether interests, whether personal, firnecial, private or otherwise, that may impinge on my fiduciary duty and the public amt: Nese ether than p evtomdy Ambled above Christine Htctheos r001MZr7 OIJC V:11 3 • NOTICE OF SPECIAL MEETING OF THE BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. I NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Beebe Draw Farms Metropolitan District No. I has been scheduled for Monday, October 20, 2008 at 5:30 p.m., at the Pelican Lake Ranch Community Center, 16502 Beebe Draw Farms Parkway, Platteville, Colorado. AGENDA 1. Disclosure of any potential conflicts of interest. 2. Public hearing on exclusion of REI Limited Liability Company real property per Petition for Exclusion attached ("Petition"). 3. Discussion and action by Board of Directors regarding Petition. • Board discussion. • Board approval or denial of Petition. • Conditions of approval of Petition. 4. Public comment. 5. Any other matter that may come before the Board. This meeting is open to the public. Board members may participate telephonically. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. I By /s/ Thomas A. Burk Secretary (00138177.DOC I) NOVEMBER 3, 2008 DISTRICT NO.1 MEETING: # 9. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST FROM DANIEL R. SHELDON lDl TO: The Board of Directors of the Beebe Draw Fame Metropolitan District Nos I and 2 and the Secretary of State FROM: Daniel It Sheldon RE: Disclosure of Potendal Conflict of Interest or Private Interest 1, Daniel R. Sheldon, am a member of the Board of Directors of the Beebe Draw Farms Metropolitan District Noa. 1 and 2 (the "Districts'). In accordance with Section 24-18-109(3)(b), Section 24-18410, Section 32.1.902 and Section 18-8-308, C.R.S., I hereby give notice to the Districts and the Secretary of Slate that to the beat of my knowledge, information and belief as ofibe day of this writing, I have a potential conflict of interest or potential, personal, financial, private or other interest that may impinge on my fiduciary duty and the public trust with reaper* to the following issue, contract, purchase, payment or other pecuniary transaction to be considered at a meeting of the Board of Directors of the Districts on or after r►3/o r . See the Agendas attached hereto. 1. In connection with the above -described transaction, I hereby give notice to the Districts and the Secretary of State that I have the following financial interest: (a) I have an ownership interest in the following business(es): N/A. The approximate amount of my financial interest is described as follows: N/A. (b) I have the following creditor interest in the following insolvent business(es): N/A. • The approximate amount of my financial interest is described as follows: N/A (c) business(es): N/A. (00134217.DCC v:11 I am employed.or am negotiating for employment with the following The approximate amount of my financial interest is described as follows: N/A. • (d) I have the following interest in real or personal property: I have in undivided 1/16a interest in certain real property located within the bmandaries of the Districts. The approximate amount of my financial interest is described as follows: Payment of d valorem properly taxes. (0) I own the following undeveloped land, which constitutes at least twenty percent (20%) of the territory included in the subject Districts: N/A. The approximate number of acres: N/A (0 I have the following loan or debtor interest in the following: I am an unsecured creditor of Gibraltar Companies LIZ ("Gibraltar'). Gibraltar holds an ownership interest in PLR LIZ ("PLR"). PLR holds a membership interest in RE! Limited Liability Company. The approximate amount of my financial interest is described as follows: Unsecured promissory notes in the aggregate principal amount of $120,000. (g) I have the following directorship or officership in the following business(es): N/A. The approximate amount of my financial interest is described as follows: N/A. 2. In connection with the above -described transaction, I hereby give Notice to the District and the Secretary of State that I provide services as follows: (a) Services Provided: N/A. (b) To Whom Service Provided: N/A. (c) Purpose: N/A. (d) Time Period: N/A.. (e) Compensation Received or Nature of Interest: N/A. 3. In accordance with Section 24 -1S -109(3)p, C.R.S., and in connection with the above -described transaction, I hereby give notice to the Districts and the Secretary of State that I have a personal or private interest as described below: None other than previously disclosed above. 4. In accordance with Section 24-18-201(1)(b)(V), C.RS., I hereby give notice to the Districts and the Secretary of State that I have a personal interest in the contract described above and being made by me in my official capacity or by the Board of Directors, of which! am a member. A description of my personal interest in the contract is as follows: None other than previously disclosed above. (001h43r7.DOC r:1) 2 S. In connection with tbeebovadesedbed transaction, thereby give notice to the Districts and the Secretary offlteeethat I:have the following other interests. whether personal. finstothisittividitPrOthinhe.:tl that may EmpLpge on my fiduciary duty and the public trust None a er mtpsitvlouelyrlbelowed above. Daniel R Sheldon I001342$tDOCv:I) 3 • •. NOTICE OF SPECIAL MEETINQ OF THE BONED OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. I NOTICE IS HEREBY GIVEN that a special meeting of the Board of Directors of the Beebe Draw Farms Metropolitan District No. 1 ("District"), Weld County, Colorado, has been scheduled for Monday, November 3, 2008 at 6:00 p.m., at the Pelican Lake Ranch Community Center, 16502 Beebe Draw Penns Parkway, Platteville, Colorado. AAA I. Disclosure of any potential conflicts of interest. 2. Approval of minutes of August 19, 2008 Coordinated Special Meeting. 3 Final action of approval or denial of REI Limited Liability Company Petition for Exclusion of Real Property. • • Board discussion. Board approval or denial of Petition. 4. Discussion and approval of Amended and Restated Intergovernmental Agreement between District and Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"), together with related conveyance documents. 5 Public hearing on exclusion of District and District No. 2 real property from District per Petition for Exclusion attached ("DID2 Petition"). 6. Discussion and final action of approval or denial of D1D2 Petition. 7. Schedule 2009 budget hearing. 8. New business. 9. Public comment. 10. Any. other matter that may come before the Board. This meeting is open to the public. Board members may participate telephonically. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By /s/ Thomas A. Burk Secretary (00139413.000!) NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 10. MINUTES OF MEETING RECORD OF PROCEEDINGS MINUTES OF THE SPECIAL MEETING OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 HELD NOVEMBER 3, 2008 The Board of Directors ("Board") of the Beebe Draw Farms Metropolitan District No. 1('District" and together with Beebe Draw Farms Metropolitan District No. 2, the "Districts") held a Special Board Meeting open to the public at 16502 Beebe Draw Farms Parkway, Platteville, Colorado, at 6:30 p.m. on November 3, 2008. Chairman Cooper called the meeting to order. ATTENDANCE Directors in Attendance Were: Stephen Cooper Linda Evans Cox Christine Hethcock Thomas A. Burk Daniel R. Sheldon, via telephone Also in Attendance: Paul Cockrel of Collins Cockrel & Cole Sharon Mau of Collins Cockrel & Cole Kathryn Gamer of Collins Cockrel & Cole Mary Ann McGeady of McGeady Sisneros Kristen Bowers of McGeady Sisneros Whit Sibley of Sibley and Associates Property owners and residents of the District as set forth on the attached list NOTICE (00141031.DOC/) It was noted that notice of the meeting of the Board had been posted at least three days prior to such meeting in three public locations within the Districts' boundaries, and the notice was filed with the Weld County Clerk and Recorder for posting on the bulletin board. The notice also included the agenda items. 1 RECORD OF PROCEEDINGS CONFLICTS OF INTEREST Directors Hethcock and Sheldon have filed Disclosure of Potential Conflict of Interest Statements with the Board and the Secretary of State in accordance with statutory requirements pertaining to their respective relationships with REI Limited Liability Company ("REI"), PLR, LLC and/or Gibraltar Companies, LLC. Such Statements are attached hereto and incorporated herein by this reference. All disclosure of potential conflicts of interest statements previously filed are deemed continuing for all purposes and are incorporated into the minutes of the meeting. It was noted that Director Burk does not have a conflict of interest. It was noted that Director Burk does not have a conflict of interest. AGENDA MINUTES At the request of Mr. Coclarel, the Agenda was renumbered so that discussion/approval of the Amended and Restated Intergovernmental Agreement between the Districts ("Amended IGA") could occur before any final action on exclusion of the REI property. It was also noted that the Agenda had previously been amended for acceptance of REI's request to modify the legal description of the exclusion property in the Petition for Exclusion. The Board reviewed the Minutes of the August 19, 2008 Coordinated Special Meeting. Upon motion duly made, seconded and unanimously carried, the Minutes of such meeting were approved as presented. AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT Upon request by Chairman Cooper, Mr. Cockrel reviewed and summarized the amendments and provision of the Amended IGA. Mr. Cockrel advised that additional conforming revisions may be made to clarify and confirm the relationship between the Districts in accordance with the Service Plan and any final action on the REI exclusion. Mr. Cockrel stated the Amended IGA is in general (00141031.DOCI) 2 RECORD OF PROCEEDINGS conformance with the provisions of the Service Plan, and recommended approval by the Board. Chairman Cooper stated that he and Director Cox had reviewed the Amended IGA in detail with Mr. Cockrel prior to the meeting. It was noted that the Executive Committee of the two Boards as provided for in the Amended IGA can implement actions approved by each Board and make recommendations to the Boards, but only the Boards can take final action. Ms. Mau read the Resolution Approving and Authorizing Execution of Amended and Restated Intergovernmental Agreement and Related Documents ("IGA Resolution"). After discussion, Chairman Cooper stated that all conditions previously requested by the Board have been met and recommended adoption of the IGA Resolution. Chairman Cooper then accepted public comment. Jeff Hare stated his understanding that Beebe Draw Farms Metropolitan District No. 2 ("District No. 2") had not had a TABOR election to levy taxes. Mr. Cockrel replied that District No. 2 had a TABOR election, but not to authorize an operating levy, and that District No. 2 voters will have to authorize an operating tax in advance of implementation of the tax levy for 2009 taxes collectible in 2010. The REI exclusion will not be effective until January 1, 2009, and District No. 2 will not levy or collect taxes on the property until 2010. There is no difficulty with obtaining electoral authorization for the District No. 2 operating levy. Mr. Hare next inquired what recourse the District has if the exclusion is not completed. Mr. Cockrel replied that the recourse would be another amendment of the Amended IGA. In response to Mr. Hare's inquiry of what happens if the District No. 2 TABOR election is not held, Mr. Cockrel stated that would be addressed in the Amended IGA through the remedies section, there would be additional opportunities to authorize an operating tax levy in future years. Mr. Hare next inquired whether there would be any risk to the District if the oil and gas companies challenge the Amended IGA, to which Mr. Cockrel replied that he could not anticipate all risks, but the Amended IGA does not increase taxes and he does not foresee any reason for any taxpayer to object. (00141031 D0C/) 3 • • RECORD OF PROCEEDINGS Linda Black requested a copy of the Amended IGA and also requested clarification, which Mr. Cockrel then provided, that the Amended IGA could not be further amended without each Board's approval. Rod Ganterbein inquired what assurance the District has that District No. 2 cannot change its tax levy, to which Mr. Cockrel replied that District No. 1 effectively sets the debt service mill levy for all property in each of the Districts, and that the Amended IGA establishes uniform standards that District No. 2 cannot tax or treat District No. 1 any differently than it taxes or treats itself. Mr. Ganterbein next questioned how operating costs would be covered if District No. 2 dropped the operating levy, to which Mr. Cockrel replied that District No. 2 is obligated to impose a tax levy sufficient to cover both debt service on the District No. 1 bonds and operations and maintenance expenses ("O&M') for each District, and the remedy for failure to do so is specific performance of the terms of the Amended IGA. Mr. Cockrel further explained that District No. 2 sets the O&M mill levy, which must be uniform in each District. If District No. 1 disagrees, the two Boards are supposed to resolve the matter. Mr. Cockrel stated the Amended WA provides for a maximum mill levy of 40 mills, not a minimum mill levy, and sets better standards under which the tax levy is applied. Mr. Hare questioned the difference from the original IGA which uses the term "must" and the Amended IGA which uses the term "shall" to which Mr. Cockrel replied there is no substantive difference. Mike Welch submitted a letter in opposition to the Amended IGA written by Richard N. Lyons II, attorney for the group that filed recall petitions against Directors Hethcock, Sheldon and Burk, a copy of which letter is attached hereto and incorporated herein by this reference. Mr. Cockrel stated that he has reviewed Mr. Lyons' letter and does not agree that the Amended IGA is a material modification of the Service Plan, and if anything, the Amended IGA enhances compliance with the Service Nan. Mary Ann McGeady, attorney for REI, stated the Service Plan provides for a maximum tax levy of 50 mills, and the Amended IGA (00141031.DOCI) 4 RECORD OF PROCEEDINGS limits the tax levy to 40 mills, which is better for all taxpayers. She then submitted a letter to the Board summarizing REI's position that the Board has authority to enter into the Amended IGA, a copy of which letter is attached hereto and incorporated herein by this reference. Mr. Hare stated that inasmuch as there are concerns of legal challenges, he hopes sufficient information has been given to the Board on the risks of any challenge and that he is counting on Mr. Cockrel to give good advice. Mr. Cockrel responded that he would consider any risks that Mr. Hare foresees, but that he does not understand Mr. Hare's specific concerns. Mr. Hare questioned the sufficiency of the TABOR election, to which Mr. Cockrel replied the issue raised by Mr. Lyons had been addressed. Mr. Hare stated it would be safer to go through the Board of County Commissioners, to which Mr. Cockrel replied that anyone can challenge at any time that the District is not in compliance with the Service Plan and doubted that the Amended IGA would raise new compliance issues. Chairman Cooper then closed the public comment session. After discussion, upon motion made, seconded and unanimously carried, the Board approved the IGA Resolution. Director Hethcock abstained from participation in the discussion and voting. REI EXCLUSION Ms. McGeady submitted a letter to the Board requesting modification of the legal description set forth on REI's Petition for Exclusion to except the 39 -acre `directors' parcel and other parcels not owned by REI, a copy of which letter is attached hereto and incorporated herein by this reference. Mr. Hare objected to the modification, stating that notice was not given. Ms. McGeady stated the Petition as submitted included what was believed to be a description of property owned 100% by REI based upon title review, and that only a general description of the property is required to be published by statute. After further review of the title work after the Petition was submitted, it was discovered that there were other ownership interests unintentionally included in the legal description, which should be corrected. Ms. McGeady further stated that as soon as title work is completed, a Petition for Exclusion of the 39 -acre {00141031.00c /) 5 RECORD OF PROCEEDINGS directors parcel would be submitted to the Board at a subsequent Board meeting. Ms. Black inquired who the other owners are of the 39 -acre parcel, and Mr. Cockrel replied it is the parcel that is used to qualify REI representatives to serve on the Boards. The Petition for Exclusion must be signed by all fee owners, and by excepting the 39 acres, it eliminates any need to amend or resubmit the Petition for Exclusion. Mr. Cockrel stated that under the statute, the Board can approve exclusion of all or any portion of the property, so the Board itself could choose to except the 39 acres from the exclusion. Chairman Cooper then opened the matter to public comments. Mr. Hare objected to the modification on the basis that it is a material change from the Petition for Exclusion, that the impact should be considered, that the presentation should be revised, that the Board should determine that all conditions for exclusion are met, and that the Petition should be revised and restarted. Ms. McGeady responded that the elements of the Petition are the same. Ms. Black commented that she does not believe there is a material change and she does not want to sit through the same presentation. Mr. Hare responded that the Board needs to review the legal description in detail to be sure it is correct. Mr. Cockrel stated the form of Petition is sufficient, and the Board did not request the Petitioner to provide a title commitment. A title commitment has since been done, and the Board can require that it be submitted as a condition of Board approval so that the condition of title can be confirmed and corrected. Ms. McGeady added that REI agrees to provide a title guarantee. Chairman Cooper then closed the matter to public comment. Ms. Mau read the draft form of Order by Board of Directors granting the exclusion of the RBI property as revised ("REI Exclusion Order"). Upon motion duly made, seconded and carried, the Board approved the REI Exclusion Order on the condition that title documentation be submitted by November 7, 2008 confirming current fee ownership in the name of REI for the legal description of (00141031.DOC/) 6 • • RECORD OF PROCEEDINGS the property as revised. Director Hethcock did not participate in the discussion and abstained from voting. DI/D2 EXCLUSION The public hearing was opened on the Petition for Exclusion submitted by the Boards of each District for the exclusion of the Districts' property from the District. Mr. Cockrel explained the purpose of the exclusion, stating that all District property will be conveyed to District No. 2 which will then be responsible for all risks or liabilities associated with the property in accordance with the Amended IGA. Chairman Cooper then invited public comments. Mr. Hare stated the matter has been discussed with the Property Owners Association ("POA"), that it is unclear who the proper owner is, and inquired whether the Board has required that title work be done to be sure the property is not owned by the POA. Mr. Cockrel stated that title work has been provided, and it is Mr. Cockrel's understanding based on such title work that title is held by the Districts. The POA was requested to transfer its interests in the property because the original Plat dedicated some open space property to the POA. The Districts have made all the improvements, and the POA was asked to take corrective action to eliminate any question of POA interest. The Board authorized Mr. Cockrel to confer with the POA attorney to confirm that nothing more needs to be done with regard to the POA's interest in the property. Ms. McGeady stated that 11E1 supports the proposed exclusion of property from District No. 1 and submitted a written statement, a copy of which is attached hereto and incorporated herein by this reference. Chairman Cooper then closed the public hearing. Ms. Mau read the draft form of Order by Board of Directors granting the exclusion of the Districts' property ("D1/O2 Exclusion Order") from the District. Director Burk questioned why the Order provides that the District is responsible for outstanding indebtedness if the properties are tax exempt, to which Mr. Cockrel replied that it (00141031.DOC/) 7 • • RECORD OF PROCEEDINGS intended to conform with the statutory requirements, but that currently the Districts do not pay taxes. It was further noted that under the Amended IGA, the property must be used for public purposes. After further discussion, upon motion duly made, seconded and carried, the Board approved the D 1/D2 Exclusion Order. Director Hethcock abstained from participation in the discussion and voting. 2009 BUDGET The budget hearing was set for November 24, 2008 at 6:00 p.m. Director Cox stated the amenities survey will also be available at that time. The Board meeting will be held in coordination with District No. 2's Board meeting. NEW BUSINESS Chairman Cooper stated that Petitions to Recall Christine Hethcock, Thomas A. Burk and Daniel R. Sheldon from the Office of Director of the District have been filed, which Petitions require 40% of signatures of eligible electors. Chairman Cooper then read the names of the signors. The Designated Election Official will conduct the recall election. PUBLIC COMMENT Chairman Cooper stated that he appreciated the public attendees' patience and courteous manner. Chairman Cooper requested that future Agendas specifically indicate which items will include public comment. Director Cox stated that she has received responses from people interested in serving on the Board in the event of vacancies, and reminded the public of the November 16 deadline for submittal of applications to either her or Chairman Cooper. (00141031.DOCi} 8 • • RECORD OF PROCEEDINGS ADJOURNMENT There being no further business to come before the Board the meeting was adjourned. Secretary for the Meeting APPRM Stephen Cooper Linda Evans Cox Thomas A. Burk Christine Hethcock {00141215.Doc/} 3 Esther Gesick From: Sent: To: Subject: Attachments: I Record of roceedings - Nov. 3. Bruce Barker Wednesday, January 07, 2009 3:35 PM Esther Gesick FW: Beebe Draw - Record of Proceedings Email #4 Record of Proceedings - Nov. 3 #11-13 (00152112).PDF Original Message From: Kathryn Garner [mailto:kgarner@CCCFIRM.COM] Sent: Friday, January 02, 2009 4:34 PM To: Bruce Barker; Paul Cockrel; MaryAnn McGeady; Richard N. Lyons Cc: Cyndy Giauque; Kristin Bowers Subject: Beebe Draw - Record of Proceedings Email #4 Attached please find the remainder of the documents from the November 3rd meeting (documents #11-13). Kathryn L. Garner Collins Cockrel & Cole 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 303.986.1551 Telephone 800.354.5941 Toll Free 303.986.1755 Facsimile PRIVILEGED COMMUNICATION. This email may contain attorney -client or otherwise privileged and confidential information intended only for the use of the individual or entity named above. Dissemination, distribution or copying of this communication is strictly prohibited. If you are an attorney or law firm, consult Title I of the federal Electronic Communications Privacy Act of 1986. If you believe that this email has been sent to you in error, please reply to the sender that you received the message in error and delete this email. ATTACHMENTS. Although this email and any attachments are believed to be free of any virus, the files should be virus scanned before opening them. Original Message From: Bruce Barker [mailto:bbarker@co.weld.co.us] Sent: Monday, December 22, 2008 10:32 AM To: Paul Cockrel; MaryAnn McGeady; Richard N. Lyons Cc: Cyndy Giauque; Kathryn Garner Subject: RE: Beebe Draw Farms Metropolitan District Paul, MaryAnn and Dick: In our discussion today regarding the procedures for the appeal on the exclusion for the above -referenced District, we confirmed the following schedule: 1 • • Objection to jurisdiction (possible that none of the Appellants filed a written objection with the District Board) must be filed with the Board of County Commissioners (BOCC) by 3 p.m., 12/24/08. If such an objection is filed with the BOCC, then Dick will have until 12/31/08 to respond. The BOCC will consider that issue at its Board meeting on 1/5/09 at 9 a.m. Record of the District Board hearing must be filed with the BOCC by 5 p.m., 1/5/09. Appellant's brief shall be filed with the BOCC by 5 p.m., 1/16/09. Appellees' response briefs shall be filed with the BOCC by 5 p.m., 1/23/09. Appellant's reply brief shall be due by 5 p.m., 2/3/09. The BOCC hearing on the matter shall be 2/11/09 or 2/18/09 at 10 a.m. Upon further reflection, I would prefer 2/18/09, so that the BOCC has a little extra time to read through all of the written materials. This appeal is not de novo, but, rather, is on the record of the proceeding before the District Board. No evidence outside that record shall be considered. No public testimony shall be heard by the Board. Thanks for your help on this! Have a Merry Christmas and Happy New Year! Bruce. NOVEMBER 3, 2008 DISTRICT NO.1 MEETING: # 11. DISTRICT NO. 1 RESOLUTION APPROVING & AUTHORIZING EXECUTION OF THE AMENDED & RESTATED IGA & RELATED DOCUMENTS RESOLUTION OF BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 APPROVING AND AUTHORIZING EXECUTION OF AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT AND RELATED DOCUMENTS WHEREAS, Beebe Draw Farms Metropolitan District No. 1 and Beebe Draw Farms Metropolitan District No. 2 (together, the "Districts") were organized pursuant to a Consolidated Service Plan dated May 1999 and approved by the Board of County Commissioners of Weld County on July 21, 1999 (the "Service Plan"); and WHEREAS, the Districts are parties to an Intergovernmental Agreement dated August 8, 2001, as amended March 4, 2004 (the "IGA"); and WHEREAS, the Districts now desire to amend, restate and supersede the IGA by entering into the Amended and Restated Intergovernmental Agreement dated as of November 3, 2008, the near final form of which is attached hereto as Exhibit A (the "Amended and Restated IGA") and incorporated herein by this reference. NOW, THEREFORE, be it resolved by the Board of Directors of District No. 1 that 1. The Amended and Restated IGA is hereby approved, and the President and Secretary of the District are hereby authorized to execute (i) the Amended and Restated IGA, including any revisions thereto which do not materially change the terms or understandings set forth therein, and (ii) any deeds or conveyance documents necessary to effectuate the terms thereof. APPROVED AND ADOPTED by the Board of Directors of Beebe Draw Farms Metropolitan District No. 1 on this 3'd day of November, 2008. BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT N By (00140211.DOC /) Secretary • • EXHIBIT A Amended and Restated Intergovernmental Agreement (00140211.DOC I) • AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into as of this 3rd day of November, 2008, by and between the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 ("District No. 1") and the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 ("District No. 2"; collectively, "Districts" or either of the Districts, a "District"), both quasi -municipal corporations and political subdivisions of the State of Colorado operating within the County of Weld ("County"), Colorado, organized under the provisions of Article 1 of Title 32, C.R.S. RECITALS A. The Districts were organized to facilitate the development of the Beebe Draw Farms and Equestrian Center, also known as Pelican Lake Ranch (the "Development"), by cooperatively providing for the financing, acquisition, construction, installation, completion, operation, maintenance and replacement of public infrastruction improvements and the furnishing of services for the use and benefit of the property owners, residents and users of the public improvements within the Development. B. The Consolidated Service Plan of the Districts dated May 1999 ("Service Plan") and previously approved by the County, requires that the Districts enter into an intergovernmental agreement to, among other matters, coordinate the financing, construction, completion, operation and maintenance of the public improvements and the provision of services needed within the Development. C. The Financial Plan in the Service Plan recognizes that District No. 2 will provide for the financing, construction, completion, operation and maintenance of the public improvements needed within the Development, and District No. 1 will impose a property tax levy on all taxable property within its boundaries and, after payment of debt service on its outstanding bonds, will remit the remainder of all taxes and other revenue collected by it to District No. 2. D. In furtherance of such requirements, the Districts previously entered into that certain Intergovernmental Agreement dated August 8, 2001 ("Original Agreement") and now desire to amend and restate the Original Agreement in its entirety in order {00141345.DOC /) to better describe and confirm the cooperative relationship and current understandings between the Districts. E. Section 18(2)(a), Article XIV of the Colorado Constitution, Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., empower the Districts to enter into contracts and agreements with one another to provide intergovernmental services and facilities, including the sharing of costs, the imposition of taxes, and the incurring of debt, when so authorized by their respective Boards of Directors. F. At the public election held on November 2, 1999, the electors of the Districts authorized the Districts to incur indebtedness and other multi -fiscal year obligations and to enter into agreements relating thereto, including this Agreement, and at prior public elections, District No. l's electors authorized District No. 1 to levy property taxes, incur general obligations, and enter into agreements relating thereto, including this Agreement, in order to provide for the financing, construction and completion of the public improvements and to furnish the services needed within the Development. G. The Boards of Directors of the Districts hereby determine that the terms, conditions and provisions of this Agreement are in the best interests of the Districts and are necessary to implement the provisions of the Service Plan with respect to the intergovernmental cooperation between the Districts and to establish the respective duties and responsibilities of the Districts concerning the economic and efficient development of the public improvements and the provision of services within the Development. AGREEMENT In consideration of the agreements, terms, conditions and authorizations set forth in the Recitals (which are incorporated herein by this reference) and in this Agreement, the adequacy and sufficiency of which are mutually acknowledged, the Districts agree as follows: SECTION 1. DEFINITIONS AND CONSTRUCTION OF AGREEMENT Section 1.1 Definitions. For all purposes of this Agreement, unless the context expressly indicates differently, the terms defined in this Section shall have the following meanings. All capitalized terms defined in the Recitals are incorporated herein by this reference. If any term is (00141345.DOC /) 2 capitalized in this Agreement but not defined herein, it shall have the meaning set forth in the Service Plan. a. "Administrative Expenses" means those costs incurred by District No. 2 for the purpose of administering the Districts as governments and operating and maintaining the Public Improvements as further provided in Section 5.6. b. "Agreement" means this Amended and Restated Intergovernmental Agreement between the Districts, as may be amended or supplemented in writing from time to time. c. "Board" or "Boards" means the Board of Directors of District No. 1 or District No. 2, as applicable, or the Boards of both Districts. d. "County" means the County of Weld, Colorado. e. "Default" or "Event of Default" means one or more of the events described in Section 6.1. f. "Developer Advances" means all funds advanced to District No. 2 by developers or other persons pursuant to any funding, reimbursement, acquisition or redevelopment agreement, and any bond, note or other obligation evidencing or securing such borrowing, that are applied for payment of costs incurred for Administrative Expenses of the Districts, for the Process of Construction, or for other public purposes, and are repayable from Project Revenues or from other legally available revenues of the Districts. g. "District" or "Districts" means either District No. 1 or District No. 2, as applicable, or both District No. 1 and District No. 2. (00141345.DOC /) h. "District No. 1" Metropolitan District 20, 1986 as Beebe District, a Colorado successor or assign. means the Beebe Draw Farms No. 1, organized on August Draw Farms Metropolitan special district, and any i. "District No. 1 Pledged Revenues" means all revenues received from (i) the District No. 1 Required Mill Levy after payment of principal of and interest on the 1998 Bonds, (ii) specific ownership taxes, and (iii) all rates, fees, tolls 3 • • and charges imposed or collected within the Districts pursuant to Section 4.2, including without limitation facility fees and water tap fees, unless otherwise pledged for the repayment of Obligations, and remitted to District No. 2 pursuant to Section 4 for payment of (i) any Obligations other than the 1998 Bonds, (ii) the costs of the Process of Construction, and (iii) the payment of Administrative Expenses, all in conformance with the Funding Priorities. j. "District No. 1 Required Mill Levy" means the property tax levy required to be imposed by District No. 1 in accordance with Section 4.1 upon all real and personal property in District No. 1 and such other property that may be obligated by virtue of law for payment on the 1998 Bonds, at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 1 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 1 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) the principal of and interest on the 1998 Bonds, and (B) all other Obligations until all Obligations have been fully repaid and discharged, and (C) all Administrative Expenses. k. "District No. 2" means the Beebe Draw Farms Metropolitan District No. 2, organized on November 24, 1999, a Colorado special district, and any successor or assign. {0014134s.Doc /1 4 1. "District No. 2 Required Mill Levy" means the property tax levy required to be imposed by District No. 2 upon all real and personal property in District No. 2 at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 2 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 2 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) all Obligations (other than the 1998 Bonds) until all Obligations have been fully repaid and discharged, and (B) all Administrative Expenses. m. "Election" means the special election conducted by each District on November 2, 1999, at which the electors of each District authorized the District to incur Obligations and enter into agreements related thereto, including without limitation this Agreement. n. "Financial Plan" means the financial plan of the Districts as set forth in the Service Plan, including any amendment or modification thereof. o. "Fiscal Year Budget" means the annual District budget and appropriation resolution duly adopted or amended by the Board in accordance with State law. p. "Funding Priorities" has the meaning set forth in Section 3.1(d). (00141345.DOC /) 5 q. "Mill Limitation" means (i) any limitation on the District No. 1 or District No. 2 Required Mill Levy as set forth in the Service Plan or in any ballot issue approved at the Election and (ii) a limitation on the rate of the property tax levy which shall not exceed 40 mills for all purposes. r. "Obligations" means all limited rate general obligation bonds, revenue bonds, notes, contracts, or funding, reimbursement, acquisition or redevelopment agreements of the Districts, including without limitation the 1998 Bonds, Developer Advances and refunding Obligations, that are secured by the District No. 1 Required Mill Levy, the District No. 1 Pledged Revenues or the Project Revenues as provided in any resolution, indenture or agreement authorizing the issuance of such Obligations. s. "Process of Construction" or "Processing of Construction" means the activities, in part or all together, of District No. 2 with respect to providing, completing and/or acquiring the Public Improvements needed for the Development, including without limitation the planning, design, engineering, testing, permitting, inspecting, construction, construction management, installation, completion and replacement of the Public Improvements. t. "Project Revenues" means all amounts received by District No. 2 from (i) the imposition of the District No. 2 Required Mill Levy, (ii) the District No. 1 Pledged Revenues, (iii) specific ownership taxes, and (iv) all rates, fees, tolls and charges imposed or collected within the Districts for the (A) repayment of any Obligations (other than the 1998 Bonds), (B) payment of the costs of the Process of Construction, and (C) payment of Administrative Expenses, all in conformance with the Funding Priorities. u. "Public Improvements" means the streets, drainage, traffic and safety controls, water, parks and recreation, mosquito control, transportation, and all other public improvements, facilities, equipment, land and related (00141345.DOC /} 6 appurtenances described or authorized in the Service Plan. v. "Service Area" means the entire area of the Development, including all property within the boundaries of the Districts. w. "Service Plan" means the Consolidated Service Plan of the Districts dated May 1999, as may be amended or modified in writing from time to time with the approval of the County. x. "Term" means the period of time commencing on the date when this Agreement has been executed by each District and ending when District No. 2 has completed all Public Improvements, all Obligations have been repaid, and District No. 2 has been dissolved or consolidated with District No. 1 in accordance with provisions of the Article 1 of Title 32, C.R.S. y. "1998 Bonds" means the General Obligation Bonds, Series 1998 of District No. 1 in the original principal amount of $2,000,000 and the principal of and interest due per the 1998 Bond repayment schedule in accordance with the terms of the 1998 Bond Resolution, and any refunding or refinancing bonds issued in accordance with the 1998 Bond Resolution. The principal amount outstanding on the 1998 Bonds as of the date of execution of this Agreement is approximately $1,475,000. z. "1998 Bond Resolution" means the Resolution authorizing the issuance of the 1998 Bonds adopted by the Board of District No. 1 on October 21, 1998. Section 1.2 Construction of Agreement. For all purposes hereunder, unless the context expressly indicates differently, all definitions, terms, and words shall include both the singular and plural. Whenever "shall" or "will" is used herein, it shall be mandatory; "may" denotes that it is preferable or permissible, but not mandatory. Whenever "Party" or "Parties" is used herein, it shall refer to either District or both Districts. A reference herein to an act of "approval" may, if applicable, include a determination of either approval or disapproval. References to Sections herein are to sections of this Agreement, unless otherwise specified. {00141345.DOC /} 7 SECTION 2. PURPOSE The purpose of this Agreement is to establish the intergovernmental relationship between the Districts in compliance with the Service Plan and to implement the terms of the Service Plan with respect to the cooperation between the Districts relating to the financing, Processing of Construction, operation and maintenance of the Public Improvements, and the provision of services within the Service Area. While each District is an independent special district, the Districts will cooperate with each other in accordance with the terms of this Agreement, unless the Districts subsequently agree to perform any administrative or management function independently by execution of an amendment of this Agreement. This Agreement shall, in all circumstances, be interpreted consistently with the Service Plan and the intended responsibilities of each District in implementing the Service Plan. SECTION 3. REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties. The Board of each District represents, acknowledges, warrants and agrees for the benefit of the other District that to the best of its actual knowledge: a. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or contravene any law, order, rule or regulation applicable to the District or to the District's governing documents, including the Service Plan; (ii) result in the breach of any of the terms or provisions or constitute a default under any obligation, agreement or other instrument to which the District is a party or by which it may be bound or affected; or (iii) permit another party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the District; b. The Board has duly approved this Agreement; c. This Agreement is a valid and binding obligation of the District enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity, subject to all limitations set forth herein; (00141345.DOC /) 8 d. All revenues received by District No. 1 from the District No. 1 Required Mill Levy and all Project Revenues received by District No. 2 shall be expended in accordance with the priorities set forth in Sections 4.1.(b) and 5.1.(c) (the "Funding Priorities"); e. Each District may rely upon and enforce all representations, warranties and agreements set forth in this Agreement; and f. The Districts, and not the County, shall be responsible for paying all debts and liabilities of the Districts. Section 3.2 Performance of Agreement. Each District acknowledges and agrees that the performance of this Agreement over the full Term is essential to the implementation of and compliance with the Service Plan and that any material departure from the terms of this Agreement by either District, or any unilateral attempt by either District to materially alter the terms of or to terminate this Agreement, except as authorized hereunder, is and shall constitute an Event of Default and a material departure from the Service Plan which, in addition to any other remedy set forth herein, the non -defaulting District shall be entitled to enjoin in accordance with Section 32-1-207, C.R.S. SECTION 4. DISTRICT NO. 1 RESPONSIBILITIES Section 4.1 Imposition of the District No. 1 Required Mill Levy. Until such time as (i) the 1998 Bonds and all other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 1 shall: a. Certify the District No. 1 Required Mill Levy no later than December 1 of each year in accordance with statutory requirements and provide prompt written notice of such certification to District No. 2, pursuant to the following process: (i) For the 2009 fiscal and property tax collection year, the District No. 1 Required Mill Levy shall be 40 mills, which shall by operation of law also be imposed upon all taxable property in District No. 2. On or before December 1, 2008, District No. 1 shall adopt a resolution establishing and (0014134s.OOC /} 9 • • certifying the District No. 1 Required Mill Levy at a rate of 40 mills. District No. 1 shall provide prompt written notice to District No. 2 of such certification. Upon receipt from the County of the revenues from the District No. 1 Required Mill Levy, District No. 1 shall identify and segregate that portion of the revenues received from the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (ii) Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, District No. 2 shall determine and, on or before November 1, advise District No. 1 of the District No. 1 Required Mill Levy to be included in the Fiscal Year Budget for the next fiscal year. On or before November 15 of each year, District No. 1 shall provide written notice to District No. 2 of any reasonable objections it may have to the District No. 1 Required Mill Levy, which objections shall be limited to non-compliance with the Service Plan or non-compliance with the terms of this Agreement. If no written objections are received by District No. 2 by November 15, District No. 1 shall be deemed to have consented to the District No. 1 Required Mill Levy, and District No. 1 shall, no later than December 1 of each year, adopt a resolution establishing and certifying the District No. 1 Required Mill Levy and shall provide prompt written notice to District No. 2 of such certification. Upon receipt of the revenues from the District No. 1 Required Mill Levy from the County, District No. 1 shall identify and segregate that portion of the revenues received form the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (iii) It shall District No. 1 fails to certify the Levy by December 1 of any year or Pledged Revenues to District No. 2. 2 shall have the rights and remedies b. All property District No. 1 from the District No be applied first for the payment of Bond repayment schedule, and then (00141345.DOC 1) 10 be an Event of Default if District No. 1 Required Mill to remit the District No. 1 In such event, District No. set forth in Section 6.3. tax revenue received by . 1 Required Mill Levy shall the 1998 Bonds per the 1998 the District No. 1 Pledged Revenues shall be remitted to District No. 2 pursuant to the provisions hereof. c. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 1 to the County authorizing the District No. 1 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. d. It shall be the duty of the Board of District No. 1 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 1 Required Mill Levy. The Board of District No. 1 shall levy, certify and collect the District No. 1 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in the 1998 Bond Resolution and this Agreement. District No. 1 in cooperation with District No. 2 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and remit all amounts realized from the sale of any real or personal property for delinquent taxes to District No. 2 (not required for payment of principal of and interest on the 1998 Bonds) in accordance with the provisions of this Agreement. e. District No. 1 shall be prohibited from retaining, appropriating, expending, pledging or otherwise encumbering any portion of the District No. 1 Pledged Revenues that are received by District No. 1 for any purpose, and all of such revenues and monies shall be transferred and paid to District No. 2 in accordance with the provisions of this Agreement. f. At any and all times, District No. 1 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certifications and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 4.2 Rates, Fees and Charges. During the Term, District No. 1 shall adopt, impose and remit to District No. 2 such rates, fees, tolls and charges as are established by District No. 2 pursuant to Section 5 in order to repay the Obligations or to fund the Process of Construction costs and the Administrative Expenses of the Districts, and such rates, fees, (00141345.DOC /) 11 tolls and charges shall be deemed part of the District No. 1 Pledged Revenues. The procedures for adopting, budgeting and transferring such fees will be established by District No. 2. Section 4.3 District No. 1 Obligations. Other than the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall incur no direct Obligations, Developer Advances, or direct costs for Processing of Construction of the Public Improvements or for any other purpose, except for the repayment of the 1998 Bonds, unless otherwise approved in writing by each District. Section 4.4 Inclusion and Exclusion of Property. As contemplated in the Service Plan, District No. 1 shall process and approve the inclusion of platted property that is excluded from District No. 2 following infrastructure development. Upon petition of any property owner for the inclusion or exclusion of any other property into or from District No. 1, the Board of District No. 1 shall, prior to conducting any public hearing thereon, notify District No. 2 of such petition in writing. Before granting any petition for inclusion of such property into District No. 1, the Board of District No. 1 shall impose all conditions for inclusion established by District No. 2. District No. 1 shall exclude no property from District No. 1 without the prior written approval of District No. 2. All taxable property located within the original boundaries of District No. 1 shall remain liable for the repayment of its proportionate share of outstanding 1998 Bond indebtedness thereon in accordance with State law. Section 4.5 Dissolution of District No. 2. Upon receipt of notice and the dissolution of District No. 2 in accordance with the Service Plan, District No. 2 shall transfer, and District No. 1 shall accept responsibility for the operations and maintenance of all Public Improvements located within the Service Area that have not been transferred to the County or another district or public agency. Section 4.6 Organization of Additional Districts. No other special district or subdistrict shall be organized within the boundaries of either of the Districts without (i) the prior consent in writing of the affected District in accordance with State law and (ii) the County's approval of an amendment of the Service Plan relating thereto. SECTION 5. DISTRICT NO. 2 RESPONSIBILITIES Section 5.1 Imposition of the District No. 2 Required Mill Levy. Until such time as (i) the 1998 Bonds and all (00141345.DOC /) 12 other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 2 shall: a. Provide written notice to District No. 1 of the District No. 1 Required Mill Levy in accordance with Section 4.1(a). b. Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, certify the District No. 2 Required Mill Levy on property within its boundaries no later than December 1 of each year in accordance with statutory requirements. c. District No. 2 shall apply the Project Revenues in the following priority: (i) first, for payment of Administrative Expenses; then (ii) funding on or before December 31, 2009 a reserve for the repayment of the 1998 Bonds in the amount of $200,000 ("Bonds Reserve"); then (iii) payment of the Process of Construction costs and the repayment of all Obligations other than the 1998 Bonds; and then (iv) the funding of any other amenities, facilities or equipment as may be determined beneficial to the Development or as may otherwise be provided in this Agreement. d. In the event District No. 1 does not receive sufficient revenues from its District No. 1 Required Mill Levy to make payment of principal of and interest on the 1998 Bonds, District No. 2 shall remit funds from the Bond Reserve to District No. 1 in an amount sufficient for District No. 1 to make payment on the 1998 Bonds. At such time when the 1998 Bonds are paid in full, the Bond Reserve shall be released to District No. 2 for expenditure in accordance with the Funding Priorities. e. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 2 to the County authorizing the District No. 2 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. f. It shall be the duty of the Board of District No. 2 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 2 Required Mill Levy, including without limitation conducting a special election in November 2009 to authorize the (00141345.DOC /} 13 District No. 2 Required Mill Levy and any other obligations requiring electoral approval set forth herein. The Board of District No. 2 shall levy, certify and collect the District No. 2 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in this Agreement. District No. 2. in cooperation with District No. 1 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and apply all amounts realized from the sale of any real or personal property for delinquent taxes in accordance with the provisions of this Agreement. g. At any and all times, District No. 2 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certification and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 5.2 General Responsibilities. District No. 2 shall exercise such duties and authority and shall have all the powers as are generally provided by State law and in the Service Plan. District No. 2, in its reasonable discretion, shall perform the following services and exercise the following powers for and on behalf the Districts: a. Manage and control the financing of the Public Improvements and the Processing of Construction, the payment of Administrative Expenses, and the completion of all actions, activities and work required to implement the Service Plan and this Agreement in conformance with the Funding Priorities; b. Budget and appropriate monies for public purposes in conformance with the Funding Priorities and provide for the payment of all expenses of the Districts; c. Establish uniform rules and regulations for the inclusion of property into the Districts in accordance with the provisions of the Service Plan; d. Adopt and enforce uniform rules and regulations for administrative and operating purposes applicable throughout the Service Area; e. Establish all necessary service charges, connections fees, tap fees, system development fees, facility fees, and other rates, fees, tolls and charges for the provision {00141345.00C /} 14 of the Public Improvements and services within the Districts, which shall be applied uniformly throughout the Service Area; f. Negotiate, prepare and enter into all applications, permits, licenses, agreements or other documents necessary to secure all applicable federal, State, County, and local approvals or other governmental authorizations for the financing, Processing of Construction, and operation and maintenance of the Public Improvements; g. Own, manage, operate, maintain and replace the Public Improvements and all property of the Districts for the general benefit of and use by all property owners, residents and related persons within the Service Area, without discrimination between the various areas of the Districts, until transferred to the County or another district or public agency. To the extent not previously effectuated, District No. 1 hereby transfers and assigns all of its interests in the Public Improvements and property of the Districts to District No. 2 for public use, subject to all limitations and conditions set forth herein; and h. Take all other actions required and comply with the Service Plan and all agreements business affairs and interests of the Districts District is or may become a party. to implement affecting the to which the Section 5.3 Financing of Public Improvements. District No. 2 shall finance and provide for the Process of Construction of all Public Improvements as required for each phase of the Development by incurring Obligations or using Project Revenues to pay the costs of the Process of Construction in conformance with the Funding Priorities and the provisions of the Service Plan. District No. 2 shall incur no Obligation which obligates District No. 1 or properties within District No. 1 for repayment of such Obligation except from the District No. 1 Pledged Revenues imposed, collected and remitted in accordance with the provisions hereof. District No. 2 shall apply and expend the Project Revenues in conformance with the Funding Priorities. Section 5.4 No. 2 shall be responsible for operation and maintenance of accordance with the provisions of Plan. District No. 2 shall, determinations relating to the expenditure of any Project Revenues and proceeds of Obligations for Processing of Construction of the Public Improvements and the payment of all Process of Construction costs, or for any other purpose with respect to the implementation, performance or enforcement of the Completion of Public Improvements. District the construction, completion, the Public Improvements in this Agreement and the Service in its discretion, make all {00141345.DOC /} 15 terms of this Agreement. Except as provided for herein for the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall have no responsibility for the financing, Processing of Construction, or the operation and maintenance of the Public Improvements. District No. 2 may transfer certain Public Improvements to the County or another public agency for ownership, operation and maintenance in accordance with the provisions of the Service Plan or intergovernmental agreements. District No. 2 shall own, manage, operate and maintain for the benefit of all property owners, residents and related persons within the Districts, without discrimination between the various areas of the Districts, all Public Improvements that are not transferred to the County or another public agency. All streets and roads owned and operated by District No. 2 shall be open for public use, subject to reasonable regulations, and shall be maintained in conformance with County road standards. All other Public Improvements and facilities of the Districts shall be available for public use, subject to reasonable regulations, and shall be maintained in a commercially reasonable manner. Section 5.5 Management of Districts. District No. 2 shall manage and administer all business affairs of the Districts, including without limitation the hiring and engagement of all employees, independent contractors, consultants, advisors, accountants, auditors, attorneys and other personnel, record - keeping, accounting and financial services, payment of Administrative Expenses, liability and property insurance, and all actions relating to statutory compliance. An executive committee of the Boards shall be constituted to facilitate ongoing communication between District No. 1 and District No. 2. The executive committee shall be composed of the president of each Board and shall also include one other Board member of each District who shall be appointed, removed, and replaced by actions of the applicable appointing Board from time to time. The executive committee shall meet periodically to discuss general management issues and to provide any comments on such issues in writing to the Boards for consideration. The executive committee may, as it deems appropriate, make recommendations to the Boards on issues on the respective Board's agenda. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the decisions of the Boards in a manner consistent with the provisions and authority conferred upon each of the Districts under this Agreement. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the provisions of the Service Plan. Additionally, the executive committee may communicate to a District on any other matter as may be directed by the other District. In no event will the executive committee have any (00141345.DOC /) 16 authority to make decisions or interfere with the decisions of the Districts. Section 5.6 Administrative Expenses. To the extent that adequate funding is available from Project Revenues and other legally available sources as provided in the Fiscal Year Budget, District No. 2 shall (i) manage, operate, maintain, repair and replace all Public Improvements not transferred to the County or another district or public agency, and (ii) generally administer the operations and business of the Districts, including without limitation the payment of all Administrative Expenses or other costs associated therewith. Section 5.7 Facility Fees and Water Tap Fees. District No. 1 has entered into certain facility fee and water tap fee agreements with developers within the District. All facility fees and water tap fees paid pursuant to such agreements (regardless of designation) shall be considered Project Revenues, unless previously pledged for the repayment of any Obligations, and shall be collected and used by District No. 2 for the completion of the Public Improvements in accordance with the provisions of Section 5.4. As recognized under the Original Agreement, this Agreement shall constitute an assignment to District No. 2 of all rights and interests of District No. 1 in and to such facility fees and water tap fees. SECTION 6. EVENTS OF DEFAULT AND REMEDIES Section 6.1 Events of Default by Districts. Subject to the terms of Section 6.5, a Default or an Event of Default by either Party under this Agreement shall mean one or more of the following events: a. Any representation or warranty made in this Agreement by a Party which was materially inaccurate when made or is proven to be materially inaccurate during the Term; b. Failure of District No. 1 to impose the District No. 1 Required Mill Levy in any year or to remit District No. 1 Pledged Revenue to District No. 2; or c. Failure of District No. 2 to impose the District No. 2 Required Mill Levy in any year; or d. A Party fails to substantially observe, comply with or perform any material responsibility, obligation, duty or agreement required of it under this Agreement; provided, however, that failure on the part of District No. 2 to observe or perform any responsibility or obligation hereunder shall not relieve or release either District from imposing the District No. (00141345.D0C /) 17 1 or District No. 2 Required Mill Levy, as applicable, and further provided that failure by either District to observe or perform any duty, responsibility or obligation hereunder shall not relieve or release the other District from making any payment, levying any property tax, otherwise performing its responsibilities hereunder, or result in an amendment or the termination of this Agreement. Section 6.2 Cure Period. Except as more specifically provided in subsection a. hereof with regard to District No. l's failure to impose the District No. 1 Required Mill Levy, upon the occurrence of an Event of Default by either Party, such Party shall, upon written notice from the other Party, proceed promptly to cure or remedy such Default. Such Default shall be cured within 30 days (or immediately with respect to a monetary payment Default) after receipt of such notice, or, if such default is of a nature which is not capable of being cured within such time period, curative action shall be commenced within the cure period and diligently pursued to completion. a. In the event that District No. 1 fails to impose the District No. 1 Required Mill Levy or District No. 2 fails to impose the District No. 2 Required Mill Levy by December 1 of any year, the defaulting District shall have no opportunity to cure and, in order to ensure that the District No. 1 Required Mill Levy or the District No. 2 Required Mill Levy, as applicable, is certified by December 15 of such year, the non - defaulting District, may, without further notice to the defaulting District, immediately proceed with the remedies set forth in Section 6.3. Section 6.3 Remedies on Default. Whenever an Event of Default occurs and is not cured or cure undertaken in accordance with the provisions of Section 6.2, the non -defaulting Party may take any one or more of the following actions: a. Recovery of actual costs and damages, including reasonable attorney fees and related expenses, through any action available at law or in equity, including without limitation the right of District No. 2 to certify to the County for collection against all taxable property within District No. 1, the amount of such costs and damages as a delinquent fee for services provided by District No. 2 in accordance with the procedures set forth in Section 32-1-1101(1)(e), C.R.S., or other special proceedings; b. In the event that either District has not certified the District No. 1 or District No. 2 Required Mill Levy, as applicable, the non -defaulting District may, subject to the provisions of the 1998 Bond Resolution, enforce the (00141345.DOC /) 18 defaulting District's obligation to certify the District No. 1 or District No. 2 Required Mill Levy, as applicable, by mandamus or other action or special proceeding; c. In the event that District No. 2 fails to perform any management or operational responsibility specified herein and to cure or remedy such Default within the applicable cure period, District No. 1 may exercise temporary management responsibility over, or petition the District Court to appoint a conservator for, the Public Improvements and facilities of the Districts, including without limitation the levy, collection and expenditure of the Project Revenues to repay any Obligations currently due and to pay the Administrative Expenses of the Districts, until District No. 2 has cured or remedied such Default. In no event shall this Agreement be amended by District No. 1 in the event District No. 1 exercises its rights under this subsection c.; and d. Any other remedy available at law, in equity, or specified under the terms of this Agreement or the Service Plan, including without limitation specific performance or injunction. Section 6.4 Waivers. Except as otherwise expressly provided in this Agreement, any delay by either Party in asserting any right or remedy under this Agreement shall not operate as a waiver of any such right or limit such right in any way. Any waiver in fact made by such Party with respect to any Default by the other Party shall not be considered as a waiver of rights with respect to any other Default by the non -defaulting Party or with respect to the particular Default, except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of any right or remedy provided in this Agreement by waiver, laches or otherwise at a time when it may still hope to resolve any problem created by such Default. Section 6.5 Unavoidable Delay in Performance. Whether stated or not, all periods of time in this Agreement are subject to the provisions of this Section. Neither Party shall be considered in Default of its obligations under this Agreement in the event of unavoidable delay due to: (i) causes beyond its control and without its fault or negligence, including without limitation acts of God, public enemies, the federal, State, County or other local governments, the other Party or third parties, litigation concerning the validity and enforceability of the Service Plan, contracts implementing the Service Plan or this Agreement or relating to transactions contemplated herein (including the effect of petitions for initiative or referendum), {00141345.DOC /} 19 fires, floods, epidemics, restrictions, strikes, embargoes, and unusually severe weather or the delays of contractors or materialmen due to any of such causes; (ii) bankruptcy, insolvency, reorganization or similar actions under laws affecting creditor's rights, or any foreclosure or other exercise of remedies of any creditor or lender in connection therewith; and (iii) without limiting any of the foregoing, any action or inaction of the County, its officers, agents, agencies, departments, committees or commissioners which delays, directly or indirectly, the District's ability to perform, complete or comply with any schedule or requirement imposed by this Agreement, the Service Plan, or any Public Improvement project. In the event of the occurrence of such unavoidable delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for the actual period of such delay; provided that the Party seeking the benefit of the provisions of this Section shall, within 30 days after such Party knows of such delay, first notify the other Party of the specific delay in writing and claim the right to an extension of performance for the period of such delay; and provided further that either Party's failure to notify the other of an event constituting an unavoidable delay shall not alter, detract from or negate its character as an unavoidable delay, if such event of delay was not known or reasonably discoverable by such Party. Section 6.6 Rights and Remedies Cumulative. The rights and remedies of the Parties under this Agreement are cumulative, and the exercise by either Party of any one or more of such rights shall not preclude the exercise by it, at the same or different times, of any other right or remedy specified herein for any other Default by the other Party. SECTION 7. MISCELLANEOUS PROVISIONS Section 7.1 Title of Sections. Any title of the several parts and sections of this Agreement are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. Section 7.2 Effective Date. This Agreement shall be in full force and effect and be legally binding upon each District upon the date of its execution by the Parties. On and after the effective date, the Original Agreement shall be terminated, amended and superseded in its entirety by this Agreement. All terms and provisions of this Agreement shall apply to any and all actions and requirements of each District for the 2009 Fiscal Year and each Fiscal Year thereafter during the Term. Section 7.3 No Third -Party Beneficiary. No third -party beneficiary rights shall be created in favor of any person not a (00141345.OOC /} 20 Party to this Agreement, unless the Parties mutually agree otherwise in writing. Section 7.4 Applicable Law. The laws of the State of Colorado shall govern the interpretation and enforcement of this Agreement. Venue shall be exclusive to the District Court in and for Weld County, Colorado. Section 7.5 Assignment. This Agreement shall not be assigned, in whole or in part, by either Party without the approval in writing of the other Party. This Agreement shall be binding on the Parties, their successors and assigns. Section 7.6 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under present or future laws effective during the Term, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by the severance of such provision from this Agreement. Further, in lieu of such illegal, invalid or unenforceable provision, there shall be added, as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable, and this Agreement shall be deemed reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of the payments required by the terms of this Agreement are determined by a court of competent jurisdiction in a final non -appealable judgment to be contrary to public policy or otherwise precluded, the Parties shall proceed in good faith to promptly restructure and/or amend this Agreement, or to enter into a new agreement to effectuate such purpose. Section 7.7 Service Plan Modifications. Neither District shall publish, without providing prior written notice to the other District and the County, any notice pursuant to Section 32- 1-207(3), C.R.S., of its intent to undertake the construction of any Public Improvement, the issuance of Obligations, the imposition of the Required Mill Levy or any other tax, rate, toll, fee or charge, or any other proposed activity of such District that is not consistent with the terms of the Service Plan or this Agreement and that would require any action to enjoin such activity as a potential or actual material departure from the Service Plan of such District be brought within 45 days of such notice. (00141345.DOC /} 21 Section 7.8 Amendments. This Agreement may be amended, in whole or in part, by written instrument executed by the Parties. Each amendment, which is in writing and signed and delivered by the Parties, shall be effective to amend the provisions hereof. Section 7.9 Entirety. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in their entirety any prior agreements, understandings, warranties or representations between the Parties with respect to the subject matter hereof, including without limitation the Original Agreement. Section 7.10 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. Section 7.11 Notices. A notice or demand under this Agreement by either Party to the other Party shall be in writing and shall be deemed sufficiently given if delivered in person, by prepaid overnight express mail or national overnight courier service, or if forwarded by registered or certified mail, postage prepaid, return receipt requested, by electronically -confirmed facsimile transmission, and addressed as follows: a. Until subsequently changed, to: Beebe Draw Farms Metropolitan District No. 1 Attention: President 16500 Beebe Draw Farms Parkway Platteville, Colorado 80651 Beebe Draw Farms Metropolitan District No. 2 Attention: President 3600 South Logan, Suite 200 Englewood, Colorado 80110 With a copy to: Paul R. Cockrel Collins Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 b. Or to such other address with respect to either Party as that Party may, from time to time, designate in writing and forward to the other Party as provided in this Section. Notices shall be deemed given upon such personal, courier or express mail delivery, or on the third business day following deposit in the U.S. Mail as provided herein. {00141345.OOO /} 22 • • Section 7.12 Good Faith of Parties. Except where any matter is expressly stated to be in the discretion of a Party, the Parties agree that in the performance of this Agreement or in considering any requested extension of time, each Party will act in good faith and shall not act unreasonably, arbitrarily, capriciously, or unreasonably withhold or delay any approval required by this Agreement. Section 7.13 Time. Unless the context indicates differently, all references herein to days shall be to calendar days, and all references herein to periods of time shall be to consecutive days or continuous periods of time. If the day for any performance or event provided for herein is a Saturday, Sunday or other day on which either national banks or the office of the Clerk and Recorder of the County are not open for the regular transaction of business, such day shall be extended until the next day on which such banks and office are open for the transaction of. business. All times shall be of the essence. Section 7.14 Further Assurances. The Parties agree to adopt or approve such resolutions, regulations and agreements, to execute such documents or instruments, and to take such action as shall be reasonably requested by the other Party to confirm or clarify the provisions herein and to effectuate the agreements herein contained and the intent thereof. If all or any portion of the Public Improvements, Obligations or agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties shall cooperate in the joint defense thereof, and if such defense is unsuccessful, the Parties will use reasonable, diligent, good faith efforts to amend, reform or replace such precluded matters. Section 7.15 Certifications. The Parties agree to execute such documents or instruments as the other Party may reasonably request to verify or confirm the status of this Agreement or other intergovernmental agreements between the Districts, and of the performance of the obligations hereunder and such other matters as either Party may reasonably request. Section 7.16 Survival of Representations and Warranties. No representations or warranties whatever are made by any Party to this Agreement, except as specifically set forth in Section 3. The representations and warranties made by the Parties to this Agreement, and all covenants and agreements to be performed or complied with by the Parties under this Agreement shall be continuing to the end of the Term. (00141345.DDC /) 23 In Witness Whereof, the Districts have caused this Agreement to be duly executed as of the day first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By: President ATTEST: Secretary BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary {00141345.00C /} NOVEMBER 3, 2008 DISTRICT NO. 1 MEETING: # 12. DISTRICT NO.2 RESOLUTION APPROVING EXCLUSION OF PROPERTY AND AUTHORIZING EXECUTION OF AMENDED & RESTATED IGA RESOLUTION OF BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 APPROVING EXCLUSION OF REAL PROPERTY FROM BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 AND APPROVING AND AUTHORIZING EXECUTION OF AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT AND RELATED DOCUMENTS WHEREAS, on or about October 7, 2008, REI, LIMITED LIABILITY COMPANY, a Wyoming Limited Liability Company, filed a Petition (the "Petition") with the Beebe Draw Farms Metropolitan District No. 1 ("District No. 1") requesting that District No. 1 exclude the real property described in the Petition as amended (the "Property") from District No. 1, a copy of which Petition as amended is attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Property is also located within the boundaries of the Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"); and WHEREAS, District No. 1 and District No. 2 (together, the "Districts") were organized pursuant to a Consolidated Service Plan dated May 1999 and approved by the Board of County Commissioners of Weld County on July 21, 1999 (the "Service Plan"); and WHEREAS, the Districts are parties to an Intergovernmental Agreement dated August 8, 2001, as amended March 4, 2004 (the "IGA"), which will be further amended, restated and superseded by the Amended and Restated IGA (as defined herein); and WHEREAS, under the Service Plan, the Districts have complete discretion to approve the inclusion and exclusion of property into and out of the boundaries of their respective District; and WHEREAS, the IGA requires the prior written approval of District No. 2 prior to District No. l's granting of any exclusion of property from its boundaries. NOW, THEREFORE, be it resolved by the Board of Directors of District No. 2 that: 1. The Property is currently within the boundaries of District No. 2, and District No. 2 will provide services to the Property more efficiently and therefore for less cost. 2. Exclusion of the Property is in the best interests of the Property and the Districts as it facilitates the financing, construction, operation and maintenance of the Public Improvements in accordance with the provisions of the Service Plan and the Amended and Restated IGA. {00140119.DOC /) • • 3. The Board of Directors hereby approves the exclusion of the Property from the boundaries of District No. 1, subject to the execution of an Amended and Restated Intergovernmental Agreement between the Districts, the near final form of which is attached hereto as Exhibit B (the "Amended and Restated IGA") and is incorporated herein by this reference, and which sets forth those amendments necessitated by the exclusion of the Property to assure the implementation of the Service Plan and the financing, construction, operation and maintenance of the Public Facilities, and subject to any other conditions to exclusion that may be imposed by District No. 1 necessary to effectuate the implementation of the Service Plan and the financing, construction, operation and maintenance of the Public Improvements. 4. The Amended and Restated IGA is hereby approved, and the President and Secretary of the District are hereby authorized to execute (i) the Amended and Restated IGA, including any revisions thereto which do not materially change the terms or understandings set forth therein, and (ii) any deeds or conveyance documents necessary to effectuate the terms thereof. APPROVED AND ADOPTED by the Board of Directors of Beebe Draw Farms Metropolitan District No. 2 on this 3r° day of November, 2008. (00140119.DOC l} BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT By 2 Secretary EXHIBIT A REI, Limited Liability Company Petition for Exclusion (00140119.DOC I) PETITION FOR EXCLUSION In accordance with Section 32-1-501(1), C.R.S., the undersigned, REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company (the "Petitioner"), does hereby respectfully petition the Beebe _Draw Farms..Metropolitan.District .No. 1 ("District"), acting by and throw its Board of Directors ("Board"), for the exclusion of certain real propert3i rom the _boundaries_ofthe_Diatrict,_suljeet tolhe n itin gdesctihad hemin. to_Ticlwaion"),_-------- . The Petitioner represents to the District as follows: 1. The land to be excluded consists of approximately 2,266.118 acres situate in the County of Weld, State of Colorado and is legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"), and, at present, constitutes a portion of the District. 2. The Petitioner is the fee owner of one hundred percent (100%) of the Property and no other person(s), entity or entities own(s) an interest in the Property except as beneficial holder(s) of encumbrances. 3. The Petitioner hereby assents to the exclusion of the Property from the boundaries of the District and to the entry of an Order in the District Court, County of Weld, State of Colorado (the "Court"), excluding the Property from the boundaries of the District. The Petitioner acknowledges that there shall be no withdrawal of the Petition from consideration by the Board after publication of notice of the hearing therefore, without the Board's consent. 4. If requested by the Petitioner, the District and the Petitioner shall enter into an Exclusion Agreement which addresses the conditions of the exclusion and the conditions upon which the order of exclusion will be recorded with the Weld County Clerk and Recorder. 5. The Petitioner agrees that it will pay, or cause to be paid, the fees incurred by the District, if any, for the Exclusion if this Petition is accepted, including the costs of publication of appropriate legal notices and legal fees and costs incurred by the District in connection with the Exclusion of the Property. The Petitioner hereby requests that the Board approve the Exclusion of the Property from the boundaries of the District and that the District file a motion with the Court requesting that an Exclusion Order be entered, stating that from and after the effective date of the Exclusion Order, the Property shall not be liable for bonded indebtedness, assessments or other obligations of the District which may be incurred after the effective date of the Order. {00132502.DOC v:l ) tg Signed this 17 day of September, 2008. REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company Name:. 'stine.Hethcock _. —Its: Manager Address of Petitioner: 3(000 5, Lee ,. Se,fF+_zoo Iewedd/ "f 40 gait*, STA EOF COLORADO 4,40 COUNTY OF lr liven SS. The foregoing instrument was acknowledged before me this /7a , day of September, 2008, by Christine Hethcock, as Manager of REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company. Witness my hand and official seal. My commission expires: 6- AP -O7 (00132502.Occ v:1) 2 EXHIBIT A. Legal Description of Property (00132502,DOC v:1) Beebe Draw Filing 2 Legal Description: Legal Description of a parcel of land being a portion of that certain parcel of land described on the boundary survey recorded April 12, 1995 in Book 1487, Page 123 under Reception No. 2433894 on file in _- _ __.._-the-ofice-of-the-Clerk-and-Recorder,Weld-County,- Colorado -situate -in Sections .4,.5,.11711, 10 -and l'l, Township 3 North, Range- 65. West -of the b°i-Principal.AZeridian-being-more-particular) described -as -follows: Beginning at the Southwest Corner of said Section 8 and considering the West line of said Section 8 as bearing North 00°09'35" West and with all bearings contained herein relative thereto; thence along said West line North 00°0995" West 1994.84 feet to a point on the Southerly line of the corrected first filing plat of Beebe Draw Perms and Equestrian Center recorded December 13, 1989 in Book 1251 under Reception No. 02200074 according to the plat on file in the office of the Clerk and Recorder, said County; thence along the boundary of said plat the following 53 courses and distances; South 73°10'00" East 888.37 feet; thence South 16°50'00" West 153.46 feet; thence South 46°50'08" East 749.22 feet; thence North 55°46'07" East 97.84 feet; thence South 46°59'23" East 1326.17 feet; thence North 83°33'14" East 694.12 feet; thence North 32°48'49" East 257.46 feet to a point on a curve concave to the Northeast having a central angle of 21°56'45" and a radius of 993.66 feet; a radial line passing through said point bears South 31°07'32" West; thence Southeasterly along the arc of said curve 380.60 feet to the end of said curve; thence tangent from said curve South 80°49'12" East 169.63 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 26°11'26" and a radius of 1221.67 feet; thence Southeasterly along the arc of said curve 558.44 feet to the end of said curve; thence tangent from said curve South 54°37'46" East 70.54 feet; thence North 35°22'14" East 150.48 feet; thence North 85°40'29" East 507.75 feet; thence South 87°32'47" East 399.71 feet; thence South 78°20'53" East 391.38 feet; thence North 13°54'57" West 1387.81 feet; thence South 88°16'34" East 170.52 feet; thence South 37°13'43" East 1250.00 feet; thence South 62°09'58" East 450.00 feet; thence South 79°40'14" East 400.00 feet; thence South 75°25'39" Bast 450.00 feet; thence North 89°41'05" East 398.67 feet; thence North 00°2203" East 470.01 feet; thence South 89°41'05" West 50.00 feet; thence North 00°22'04" East 495.00 feet; thence North 89°37'55" West 91.83 feet; thence North 42°2427" West 646.46 feet; thence North 72°26'31" West 54.60 feet; thence North 17°17'09" West 207.35 feet; thence North 00°16'43" East 348.60 feet; thence North 12°04'Sl" West 380.71 feet; thence North 06°35'57" West 425.17 feet; thence North 41°3224" West 327.37 feet; thence North 31°19'19" West 302.66 feet; thence North 23°33'38" West 293.98 feet; thence North 20°56'25" West 650.00 feet; thence North 34°55'56" West 423.91 feet•, thence North 52°36'54" West 357.78 feet to a point on the South right-of-way line of Beebe Draw Faints Parkway; thence along said South right-of-way line the following three courses and distances; South 37°23'06" West 155.00 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 28°0W58" and a radius of 1141.35 feet; thence Southwesterly along the arc of said curve 561.08 feet to the end of said curve; thence tangent from said curve South 65°33'04" West 266.94 feet thence North 24°26'46" West 100.00 feet; thence North 46°0895 West 1117.27 feet; thence South 74°02'57" West 850.00 feet to a point on a curve concave to the Southwest having a central angle of 21°01'08" and a radius of 986.23 feet; a radial line passing though said point bears North 62°51'38" East; thence Northwesterly along the arc of said curve 361.80 feet to the end of said curve; thence tangent from said curve North 48°09'30" West 225.00 feet; thence South 41°50'30" West 235.00 fee to the beginning of a tangent curve concave to the Southeast having a central angle of 20°43'40" and a radius of 225.00 feet; thence Southwesterly along the arc of said curve 81.40 feet to the end of said curve; a radial line passing through said end of curve bears North 68°53'10" West; thence departing said curve North 68°53'10" West 1 450.00 feet; thence South 38°50'00" West 331.13 feet; thence North 72°28'11" West 508.22 feet; thence South 86°32'30" West 1532.88 feet; thence South 89°5075" West 200.00 feet to a point on the West line of said Section 8; thence departing said corrected first filing plat of Beebe Draw Frames and Equestrian Center and along said West line of said Section 8 North 00°09'35" West 206.16 feet to the Northwest Corner of said Section 8; thence along the West line of the Southwest Quarter of said Section 5 North 00°25'20" West 2654.03 feat to the West QuarteiComer 0f -0d Section 5; thence along the West —lino M ----the-Nordtweet-Quasierot'said•Section-5-North ' t-1327,22-feetto-the-Southwest-Comet-0fthe--------- North-Half ol;MhaNerthwest-QaaRa ofsaid-Seetion-lit4lronce•along•theSeudpline-ekhe•North-Half-of-ehs Northwest Quarter of said Section 5 North 89°44'21" Bast 2631.31 feet to the Southeast Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the Northwest Quarter of the Northeast Quarter from said Section 5 North 89°44'21" Bast 1331.58 feet to the Southeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the East line of the Northwest Quarter of the Northeast Quarter of said Section 5 North 00°38'58" West 1325.38 feet to the Northeast Corner of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the North line of the Northeast Quarter of said Section 5 North 89°39'41" East 1333.17 feet to the Northeast Corner of said Section 5; thence along the North line of the Northwest. Quarter of said Section 4 North 89°45'43" East 2638.09 feet to the North Quarter Corner of said Section 4; thence along the North line of the Northeast Quarter of said Section 4 North 89°24'30" East 805.01 feet; thence departing said North line South 40°03'54" East 9.61 feet; thence South 10°09'16" West 45.49 feet; thence South 27°01'56" West 281.98 feet; thence South 35'02'52" West 129.95 feet; thence South 46°24'35" West 113.95 feet; thence South 67°56'11" West 114.41 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 4394'52" 14'52" and a radius of 210.00 feet; thence Southwesterly along the arc of said curve 158.51 feet to the end of said curve; thence tangent from said curve South 24°41'19" West 39.72 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 68'10'08" and a radius of 217.23 feet; thence Southeasterly along the arc of said curve 258.45 feet to the end of said curve; thence tangent from said curve South 43°28'49" East 159.97 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 48°38'11" and a radius of 81.88 feet; thence Southwesterly along the arc of said curve 69.51 feet to the end of said curve; thence tangent from said curve South 05°09'21" West 19.20 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 25°54'10" and a radius of 260.90 feet; thence Southwesterly along the arc of said curve 117.95 feet to the end of said curve; thence tangent from said curve South 31°0331" West 130.58 feet; thence South 09°40'49" West 95.26 feet; thence South 03°11'34" East 116.07 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 36°30'36" East and a radius of 180.24 fat; thence Southeasterly along the arc of said curve 114.85 fat to the end of said curve; thence tangent from said curve South 39°42'10" East 116.57 fat to the beginning of a tangent curve concave to the Northeast having a central angle of 45°22'31" Bast and a radius of 114.82 feet; thence Southeasterly along the arc of said curve 90.93 feet to the end of said curve; thence tangent from said curve South 85'04'41" East 170.71 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 68°29'30" and a radius of 126.33 feet; thence Southeasterly along the arc of said curve 151.02 feet to the end of said curve; thence tangent from said curve South 16°35'11" East 120.95 feet to the beginning of a tangent curve concave to the West having a central angle of 25°35'07" and a radius of 440.41 feet; thence Southwesterly along the arc of said curve 196.66 fat to the end of said curve; thence tangent from said curve South 08°59'57" West 101.24 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 59°32'10" and a radius of 242.34 feet; thence Southeasterly along the arc of said curve 251.82 feet to the end of said curve; thence tangent from said curve South 50°32'12" Bast 97.62 feet; thence North 89°31'48" East 283.17 feet; thence South 31°18'26" East 113.96 feet; thence South 58°32'01" West 57.39 feet; thence South 31°27'59" Bast 522.19 feet; thence South 10°25'00" East 99.33 feet; thence South 33°44'57" East 157.31 feet; thence South 51°33'07" West 95.52 feet; thence South 2 00°23'23" East 177.92 feet; thence South 10°18'08" East 78.26 feet; thence South 30°46'04" East 152.46 feet; thence South 47°55'59" East 265.05 feet; thence South 37°58'27" West 164.42 feet; thence South 06°08'57" West 239.20 feet; thence South 33°32'01" East 129.62 feet; thence South 74°2058" East 218.49 feet; thence South 21°05'43" East 136.12 feet; thence South 05°34'34" East 216.02 feet; thence South 40°38'47" East 130.48 feet; thence South 06°3724" West 112.76 feet; thence South 13°34'05" East 59.67 feet; (Tin South 35°26'15" Basteet; t- t South 49°59'28" Bast 73.11 feet; thence South 72°02'53" —Bast -149 26-feat-thence-South.28`2437—Seat 133.73 -feet; -thence -South Am? VAX -East 1,2id33 •feet;-thane-South-81-808+14East468,24•feet; thenaelouth-35°2616" -Bast -144,84 fast; -thence South 52°48'46" East 145.60 feet; thence South 53°35'11" Bast 274.60 feet; thence South 01°31'42" West 75.03 feet; thence South 30°03'25" West 263.26 feet; thence South 06°03'06" East 282.44 feet; thence South 25°15'38" East 337.55 feet; thence South 23°51'00" East 264.59 feet; thence South 29°30'32" East 174.35 feet; thence South 37°11'17" Bast 96.99 feet; thence South 52°03'02" East 69.68 feet; thence South 55°31'03" Bast 148.65 feet; thence South 16°11'28" East 138.93 feet; thence South 42°52'22" East 177.69 feet; thence South 25°09'33" East 155.19 feet; thence South 24°47'22" East 180.62 feet; thence South 36°43'50" Bast 146.03 feet thence South 25°08'32" West 111.15 feet; thence South 02°01'46" East 227.19 feet; thence South 20°03'30" East 193.90 feet; thence South 12°32'52" East 346.85 feet; thence South 10°22'25" West 264.13 feet; thence South 05°07'51" West 157.19 feet; thence South 32°32'42" West 220.12 feet; thence South 19°19'50" West 268.66 feet; thence South 38°04'09" West 284.92 feet; thence South 79°43'19" West 714.61 feet; thence South 24°52'21" West 224.67 feet; thence South 07°13'48" East 37.52 feet to a point on the South line of said Section 10; thence along said South line South 89°28'30" West 283.01 feet to the Northeast Corner of said Section 9; thence along the South line of said Section 9 South 89°41'18" West 5121.15 feet to the Northeast Corner of said Section 17; thence along the East line of said Section 17 South 00°30'21" East 5282.59 feet to the Southeast Comer of said Section 17; thence along the South line of said Section 17 South 89°33'05" West 5327.95 feet to the Southwest Corner of said Section 17; thence along the West line of said Section 17 North 00°29'44" West 5259.39 feet to the PONT OF BEGINNING. EXCEPTING THEREFROM the following two (2) parcels: Parcel 1- School Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4 and the Northeast Quarter of Section 5, Township 3 North, Range 65 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 844.05 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence South 00°19'37" West 674.51 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 10°04'02" and a radius of 435.00 feet; thence Southwesterly along the arc of said curve 76.43 feet to the end of said curve, a radial line passing through said end of curve bears South 79°36'20" East; thence departing said curve South 89°45'34" West 2157.24 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along said East line North 00°38'58" West 748.22 feet, thence departing said East line North 89°39'41" East 1332.98 feet; thence North 89°45'43" East 843.75 feet to the TRUE POINT OF BEGINNING. 3 • • Parcel 2 - Fire Station Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4, Township 3 North, Range 63West of the 6th P.M., Weld -County, Colorado; eiijig more parttcuai—dyfdescribid-as —follows. - Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all beatings contained herein relative thereto; thence along said North line North 89°45'43" East 924.06 feet, thence departing said North line South 0099'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence North 89°45'43" East 400.02 feet; thence South 00°19'37" West 404.39 feet; thence North 89°4023" West 400.00 feet; thence North 00°19'37" East 400.44 feet to the TRUE POINT OF BEGINNING. Containing 2,266.118 acres, more or less, and is subject to all easements, agreements and rights -of -way of record. 4 EXHIBIT B [attach Amended and Restated Intergovernmental Agreement] (00140119.DOC /) AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into as of this 3rd day of November, 2008, by and between the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 ("District No. 1") and the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 ("District No. 2"; collectively, "Districts" or either of the Districts, a "District"), both quasi -municipal corporations and political subdivisions of the State of Colorado operating within the County of Weld ("County"), Colorado, organized under the provisions of Article 1 of Title 32, C.R.S. RECITALS A. The Districts were organized to facilitate the development of the Beebe Draw Farms and Equestrian Center, also known as Pelican Lake Ranch (the "Development"), by cooperatively providing for the financing, acquisition, construction, installation, completion, operation, maintenance and replacement of public infrastruction improvements and the furnishing of services for the use and benefit of the property owners, residents and users of the public improvements within the Development. B. The Consolidated Service Plan of the Districts dated May 1999 ("Service Plan") and previously approved by the County, requires that the Districts enter into an intergovernmental agreement to, among other matters, coordinate the financing, construction, completion, operation and maintenance of the public improvements and the provision of services needed within the Development. C. The Financial Plan in the Service Plan recognizes that District No. 2 will provide for the financing, construction, completion, operation and maintenance of the public improvements needed within the Development, and District No. 1 will impose a property tax levy on all taxable property within its boundaries and, after payment of debt service on its outstanding bonds, will remit the remainder of all taxes and other revenue collected by it to District No. 2. D. In furtherance of such requirements, the Districts previously entered into that certain Intergovernmental Agreement dated August 8, 2001 ("Original Agreement") and now desire to amend and restate the Original Agreement in its entirety in order {00141345.DOC /) • • to better describe and confirm the cooperative relationship and current understandings between the Districts. E. Section 18(2) (a), Article XIV of the Colorado Constitution, Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., empower the Districts to enter into contracts and agreements with one another to provide intergovernmental services and facilities, including the sharing of costs, the imposition of taxes, and the incurring of debt, when so authorized by their respective Boards of Directors. F. At the public election held on November 2, 1999, the electors of the Districts authorized the Districts to incur indebtedness and other multi -fiscal year obligations and to enter into agreements relating thereto, including this Agreement, and at prior public elections, District No. l's electors authorized District No. 1 to levy property taxes, incur general obligations, and enter into agreements relating thereto, including this Agreement, in order to provide for the financing, construction and completion of the public improvements and to furnish the services needed within the Development. G. The Boards of Directors of the Districts hereby determine that the terms, conditions and provisions of this Agreement are in the best interests of the Districts and are necessary to implement the provisions of the Service Plan with respect to the intergovernmental cooperation between the Districts and to establish the respective duties and responsibilities of the Districts concerning the economic and efficient development of the public improvements and the provision of services within the Development. AGREEMENT In consideration of the agreements, terms, conditions and authorizations set forth in the Recitals (which are incorporated herein by this reference) and in this Agreement, the adequacy and sufficiency of which are mutually acknowledged, the Districts agree as follows: SECTION 1. DEFINITIONS AND CONSTRUCTION OF AGREEMENT Section 1.1 Definitions. For all purposes of this Agreement, unless the context expressly indicates differently, the terms defined in this Section shall have the following meanings. All capitalized terms defined in the Recitals are incorporated herein by this reference. If any term is (00141345.DOC /} 2 capitalized in this Agreement but not defined herein, it shall have the meaning set forth in the Service Plan. a. "Administrative Expenses" means those costs incurred by District No. 2 for the purpose of administering the Districts as governments and operating and maintaining the Public Improvements as further provided in Section 5.6. b. "Agreement" means this Amended and Restated Intergovernmental Agreement between the Districts, as may be amended or supplemented in writing from time to time. (00141345.00c /) c. "Board" or "Boards" means the Board Directors of District No. 1 or District No. 2, applicable, or the Boards of both Districts. of as d. "County" means the County of Weld, Colorado. e. "Default" or "Event of Default" means one or more of the events described in Section 6.1. f. "Developer Advances" means all funds advanced to District No. 2 by developers or other persons pursuant to any funding, reimbursement, acquisition or redevelopment agreement, and any bond, note or other obligation evidencing or securing such borrowing, that are applied for payment of costs incurred for Administrative Expenses of the Districts, for the Process of Construction, or for other public purposes, and are repayable from Project Revenues or from other legally available revenues of the Districts. g. "District" or "Districts" means either District No. 1 or District No. 2, as applicable, or both District No. 1 and District No. 2. h. "District No. 1" Metropolitan District 20, 1986 as Beebe District, a Colorado successor or assign. means the Beebe Draw Farms No. 1, organized on August Draw Farms Metropolitan special district, and any i. "District No. 1 Pledged Revenues" means all revenues received from (i) the District No. 1 Required Mill Levy after payment of principal of and interest on the 1998 Bonds, (ii) specific ownership taxes, and (iii) all rates, fees, tolls 3 and charges imposed or collected within the Districts pursuant to Section 4.2, including without limitation facility fees and water tap fees, unless otherwise pledged for the repayment of Obligations, and remitted to District No. 2 pursuant to Section 4 for payment of (i) any Obligations other than the 1998 Bonds, (ii) the costs of the Process of Construction, and (iii) the payment of Administrative Expenses, all in conformance with the Funding Priorities. j. "District No. 1 Required Mill Levy" means the property tax levy required to be imposed by District No. 1 in accordance with Section 4.1 upon all real and personal property in District No. 1 and such other property that may be obligated by virtue of law for payment on the 1998 Bonds, at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 1 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 1 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) the principal of and interest on the 1998 Bonds, and (B) all other Obligations until all Obligations have been fully repaid and discharged, and (C) all Administrative Expenses. k. "District No. 2" means the Beebe Draw Farms Metropolitan District No. 2, organized on November 24, 1999, a Colorado special district, and any successor or assign. (00141345.DOC /) 4 1. "District No. 2 Required Mill Levy" means the property tax levy required to be imposed by District No. 2 upon all real and personal property in District No. 2 at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 2 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 2 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) all Obligations (other than the 1998 Bonds) until all Obligations have been fully repaid and discharged, and (B) all Administrative Expenses. m. "Election" means the special election conducted by each District on November 2, 1999, at which the electors of each District authorized the District to incur Obligations and enter into agreements related thereto, including without limitation this Agreement. n. "Financial Plan" means the financial plan of the Districts as set forth in the Service Plan, including any amendment or modification thereof. o. "Fiscal Year Budget" means the annual District budget and appropriation resolution duly adopted or amended by the Board in accordance with State law. p. "Funding Priorities" has the meaning set forth in Section 3.1(d). (00141345-DOC /} 5 q. "Mill Limitation" means (i) any limitation on the District No. 1 or District No. 2 Required Mill Levy as set forth in the Service Plan or in any ballot issue approved at the Election and (ii) a limitation on the rate of the property tax levy which shall not exceed 40 mills for all purposes. r. "Obligations" means all limited rate general obligation bonds, revenue bonds, notes, contracts, or funding, reimbursement, acquisition or redevelopment agreements of the Districts, including without limitation the 1998 Bonds, Developer Advances and refunding Obligations, that are secured by the District No. 1 Required Mill Levy, the District No. 1 Pledged Revenues or the Project Revenues as provided in any resolution, indenture or agreement authorizing the issuance of such Obligations. s. "Process of Construction" or "Processing of Construction" means the activities, in part or all together, of District No. 2 with respect to providing, completing and/or acquiring the Public Improvements needed for the Development, including without limitation the planning, design, engineering, testing, permitting, inspecting, construction, construction management, installation, completion and replacement of the Public Improvements. t. "Project Revenues" means all amounts received by District No. 2 from (i) the imposition of the District No. 2 Required Mill Levy, (ii) the District No. 1 Pledged Revenues, (iii) specific ownership taxes, and (iv) all rates, fees, tolls and charges imposed or collected within the Districts for the (A) repayment of any Obligations (other than the 1998 Bonds), (B) payment of the costs of the Process of Construction, and (C) payment of Administrative Expenses, all in conformance with the Funding Priorities. u. "Public Improvements" means the streets, drainage, traffic and safety controls, water, parks and recreation, mosquito control, transportation, and all other public improvements, facilities, equipment, land and related )00141345.DOC /) 6 appurtenances described or authorized in the Service Plan. v. "Service Area" means the entire area of the Development, including all property within the boundaries of the Districts. w. "Service Plan" means the Consolidated Service Plan of the Districts dated May 1999, as may be amended or modified in writing from time to time with the approval of the County. x. "Term" means the period of time commencing on the date when this Agreement has been executed by each District and ending when District No. 2 has completed all Public Improvements, all Obligations have been repaid, and District No. 2 has been dissolved or consolidated with District No. 1 in accordance with provisions of the Article 1 of Title 32, C.R.S. y. "1998 Bonds" means the General Obligation Bonds, Series 1998 of District No. 1 in the original principal amount of $2,000,000 and the principal of and interest due per the 1998 Bond repayment schedule in accordance with the terms of the 1998 Bond Resolution, and any refunding or refinancing bonds issued in accordance with the 1998 Bond Resolution. The principal amount outstanding on the 1998 Bonds as of the date of execution of this Agreement is approximately $1,475,000. z. "1998 Bond Resolution" means the Resolution authorizing the issuance of the 1998 Bonds adopted by the Board of District No. 1 on October 21, 1998. Section 1.2 Construction of Agreement. For all purposes hereunder, unless the context expressly indicates differently, all definitions, terms, and words shall include both the singular and plural. Whenever "shall" or "will" is used herein, it shall be mandatory; "may" denotes that it is preferable or permissible, but not mandatory. Whenever "Party" or "Parties" is used herein, it shall refer to either District or both Districts. A reference herein to an act of "approval" may, if applicable, include a determination of either approval or disapproval. References to Sections herein are to sections of this Agreement, unless otherwise specified. (00141345.DOC /) 7 SECTION 2. PURPOSE The purpose of this Agreement is to establish the intergovernmental relationship between the Districts in compliance with the Service Plan and to implement the terms of the Service Plan with respect to the cooperation between the Districts relating to the financing, Processing of Construction, operation and maintenance of the Public Improvements, and the provision of services within the Service Area. While each District is an independent special district, the Districts will cooperate with each other in accordance with the terms of this Agreement, unless the Districts subsequently agree to perform any administrative or management function independently by execution of an amendment of this Agreement. This Agreement shall, in all circumstances, be interpreted consistently with the Service Plan and the intended responsibilities of each District in implementing the Service Plan. SECTION 3. REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties. The Board of each District represents, acknowledges, warrants and agrees for the benefit of the other District that to the best of its actual knowledge: a. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or contravene any law, order, rule or regulation applicable to the District or to the District's governing documents, including the Service Plan; (ii) result in the breach of any of the terms or provisions or constitute a default under any obligation, agreement or other instrument to which the District is a party or by which it may be bound or affected; or (iii) permit another party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the District; b. The Board has duly approved this Agreement; c. This Agreement is a valid and binding obligation of the District enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles, whether considered at law or in equity, subject to all limitations set forth herein; }00141345.DOC /} 8 d. All revenues received by District No. 1 from the District No. 1 Required Mill Levy and all Project Revenues received by District No. 2 shall be expended in accordance with the priorities set forth in Sections 4.1.(b) and 5.1.(c) (the "Funding Priorities"); e. Each District may rely upon and enforce all representations, warranties and agreements set forth in this Agreement; and f. The Districts, and not the County, shall be responsible for paying all debts and liabilities of the Districts. Section 3.2 Performance of Agreement. Each District acknowledges and agrees that the performance of this Agreement over the full Term is essential to the implementation of and compliance with the Service Plan and that any material departure from the terms of this Agreement by either District, or any unilateral attempt by either District to materially alter the terms of or to terminate this Agreement, except as authorized hereunder, is and shall constitute an Event of Default and a material departure from the Service Plan which, in addition to any other remedy set forth herein, the non -defaulting District shall be entitled to enjoin in accordance with Section 32-1-207, C.R.S. SECTION 4. DISTRICT NO. 1 RESPONSIBILITIES Section 4.1 Imposition of the District No. 1 Required Mill Levy. Until such time as (i) the 1998 Bonds and all other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 1 shall: a. Certify the District No. 1 Required Mill Levy no later than December 1 of each year in accordance with statutory requirements and provide prompt written notice of such certification to District No. 2, pursuant to the following process: (i) For the 2009 fiscal and property tax collection year, the District No. 1 Required Mill Levy shall be 40 mills, which shall by operation of law also be imposed upon all taxable property in District No. 2. On or before December 1, 2008, District No. 1 shall adopt a resolution establishing and {00141345.DOC /1 9 • certifying the District No. 1 Required Mill Levy at a rate of 40 mills. District No. 1 shall provide prompt written notice to District No. 2 of such certification. Upon receipt from the County of the revenues from the District No. 1 Required Mill Levy, District No. 1 shall identify and segregate that portion of the revenues received from the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (ii) Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, District No. 2 shall determine and, on or before November 1, advise District No. 1 of the District No. 1 Required Mill Levy to be included in the Fiscal Year Budget for the next fiscal year. On or before November 15 of each year, District No. 1 shall provide written notice to District No. 2 of any reasonable objections it may have to the District No. 1 Required Mill Levy, which objections shall be limited to non-compliance with the Service Plan or non-compliance with the terms of this Agreement. If no written objections are received by District No. 2 by November 15, District No. 1 shall be deemed to have consented to the District No. 1 Required Mill Levy, and District No. 1 shall, no later than December 1 of each year, adopt a resolution establishing and certifying the District No. 1 Required Mill Levy and shall provide prompt written notice to District No. 2 of such certification. Upon receipt of the revenues from the District No. 1 Required Mill Levy from the County, District No. 1 shall identify and segregate that portion of the revenues received form the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (iii) It shall District No. 1 fails to certify the Levy by December 1 of any year or Pledged Revenues to District No. 2. 2 shall have the rights and remedies b. All property District No. 1 from the District No be applied first for the payment of Bond repayment schedule, and then be an Event of Default if District No. 1 Required Mill to remit the District No. 1 In such event, District No. set forth in Section 6.3. tax revenue received by . 1 Required Mill Levy shall the 1998 Bonds per the 1998 the District No. 1 Pledged (00141345.DOC /) 10 Revenues shall be remitted to District No. 2 pursuant to the provisions hereof. c. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 1 to the County authorizing the District No. 1 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. d. It shall be the duty of the Board of District No. 1 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 1 Required Mill Levy. The Board of District No. 1 shall levy, certify and collect the District No. 1 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in the 1998 Bond Resolution and this Agreement. District No. 1 in cooperation with District No. 2 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and remit all amounts realized from the sale of any real or personal property for delinquent taxes to District No. 2 (not required for payment of principal of and interest on the 1998 Bonds) in accordance with the provisions of this Agreement. e. District No. 1 shall be prohibited from retaining, appropriating, expending, pledging or otherwise encumbering any portion of the District No. 1 Pledged Revenues that are received by District No. 1 for any purpose, and all of such revenues and monies shall be transferred and paid to District No. 2 in accordance with the provisions of this Agreement. f. At any and all times, District No. 1 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certifications and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 4.2 Rates, Fees and Charges. During the Term, District No. 1 shall adopt, impose and remit to District No. 2 such rates, fees, tolls and charges as are established by District No. 2 pursuant to Section 5 in order to repay the Obligations or to fund the Process of Construction costs and the Administrative Expenses of the Districts, and such rates, fees, {00141345.DOC /} 11 • • tolls and charges shall be deemed part of the District No. 1 Pledged Revenues. The procedures for adopting, budgeting and transferring such fees will be established by District No. 2. Section 4.3 District No. 1 Obligations. Other than the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall incur no direct Obligations, Developer Advances, or direct costs for Processing of Construction of the Public Improvements or for any other purpose, except for the repayment of the 1998 Bonds, unless otherwise approved in writing by each District. Section 4.4 Inclusion and Exclusion of Property. As contemplated in the Service Plan, District No. 1 shall process and approve the inclusion of platted property that is excluded from District No. 2 following infrastructure development. Upon petition of any property owner for the inclusion or exclusion of any other property into or from District No. 1, the Board of District No. 1 shall, prior to conducting any public hearing thereon, notify District No. 2 of such petition in writing. Before granting any petition for inclusion of such property into District No. 1, the Board of District No. 1 shall impose all conditions for inclusion established by District No. 2. District No. 1 shall exclude no property from District No. 1 without the prior written approval of District No. 2. All taxable property located within the original boundaries of District No. 1 shall remain liable for the repayment of its proportionate share of outstanding 1998 Bond indebtedness thereon in accordance with State law. Section 4.5 Dissolution of District No. 2. Upon receipt of notice and the dissolution of District No. 2 in accordance with the Service Plan, District No. 2 shall transfer, and District No. 1 shall accept responsibility for the operations and maintenance of all Public Improvements located within the Service Area that have not been transferred to the County or another district or public agency. Section 4.6 Organization of Additional Districts. No other special district or subdistrict shall be organized within the boundaries of either of the Districts without (i) the prior consent in writing of the affected District in accordance with State law and (ii) the County's approval of an amendment of the Service Plan relating thereto. SECTION 5. DISTRICT NO. 2 RESPONSIBILITIES Section 5.1 Imposition of the District No. 2 Required Mill Levy. Until such time as (i) the 1998 Bonds and all {00141345.DOC /} 12 other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 2 shall: a. Provide written notice to District No. 1 of the District No. 1 Required Mill Levy in accordance with Section 4.1(a). b. Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, certify the District No. 2 Required Mill Levy on property within its boundaries no later than December 1 of each year in accordance with statutory requirements. c. District No. 2 shall apply the Project Revenues in the following priority: (i) first, for payment of Administrative Expenses; then (ii) funding on or before December 31, 2009 a reserve for the repayment of the 1998 Bonds in the amount of $200,000 ("Bonds Reserve"); then (iii) payment of the Process of Construction costs and the repayment of all Obligations other than the 1998 Bonds; and then (iv) the funding of any other amenities, facilities or equipment as may be determined beneficial to the Development or as may otherwise be provided in this Agreement. d. In the event District No. 1 does not receive sufficient revenues from its District No. 1 Required Mill Levy to make payment of principal of and interest on the 1998 Bonds, District No. 2 shall remit funds from the Bond Reserve to District No. 1 in an amount sufficient for District No. 1 to make payment on the 1998 Bonds. At such time when the 1998 Bonds are paid in full, the Bond Reserve shall be released to District No. 2 for expenditure in accordance with the Funding Priorities. e. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 2 to the County authorizing the District No. 2 Required Mill Levy to be levied by the County, from year to year, as required by-law for the purposes set forth herein. f. It shall be the duty of the Board of District No. 2 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 2 Required Mill Levy, including without limitation conducting a special election in November 2009 to authorize the {00141345.DOC /) 13 District No. 2 Required Mill Levy and any other obligations requiring electoral approval set forth herein. The Board of District No. 2 shall levy, certify and collect the District No. 2 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in this Agreement. District No. 2. in cooperation with District No. 1 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and apply all amounts realized from the sale of any real or personal property for delinquent taxes in accordance with the provisions of this Agreement. g. At any and all times, District No. 2 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certification and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 5.2 General Responsibilities. District No. 2 shall exercise such duties and authority and shall have all the powers as are generally provided by State law and in the Service Plan. District No. 2, in its reasonable discretion, shall perform the following services and exercise the following powers for and on behalf the Districts: a. Manage and control the financing of the Public Improvements and the Processing of Construction, the payment of Administrative Expenses, and the completion of all actions, activities and work required to implement the Service Plan and this Agreement in conformance with the Funding Priorities; b. Budget and appropriate monies for public purposes in conformance with the Funding Priorities and provide for the payment of all expenses of the Districts; c. Establish uniform rules and regulations for the inclusion of property into the Districts in accordance with the provisions of the Service Plan; d. Adopt and enforce uniform rules and regulations for administrative and operating purposes applicable throughout the Service Area; e. Establish all necessary service charges, connections fees, tap fees, system development fees, facility fees, and other rates, fees, tolls and charges for the provision (00141345.DX /) 14 of the Public Improvements and services within the Districts, which shall be applied uniformly throughout the Service Area; f. Negotiate, prepare and enter into all applications, permits, licenses, agreements or other documents necessary to secure all applicable federal, State, County, and local approvals or other governmental authorizations for the financing, Processing of Construction, and operation and maintenance of the Public Improvements; g. Own, manage, operate, maintain and replace the Public Improvements and all property of the Districts for the general benefit of and use by all property owners, residents and related persons within the Service Area, without discrimination between the various areas of the Districts, until transferred to the County or another district or public agency. To the extent not previously effectuated, District No. 1 hereby transfers and assigns all of its interests in the Public Improvements and property of the Districts to District No. 2 for public use, subject to all limitations and conditions set forth herein; and h. Take all other actions required to implement and comply with the Service Plan and all agreements affecting the business affairs and interests of the Districts to which the District is or may become a party. Section 5.3 Financing of Public Improvements. District No. 2 shall finance and provide for the Process of Construction of all Public Improvements as required for each phase of the Development by incurring Obligations or using Project Revenues to pay the costs of the Process of Construction in conformance with the Funding Priorities and the provisions of the Service Plan. District No. 2 shall incur no Obligation which obligates District No. 1 or properties within District No. 1 for repayment of such Obligation except from the District No. 1 Pledged Revenues imposed, collected and remitted in accordance with the provisions hereof. District No. 2 shall apply and expend the Project Revenues in conformance with the Funding Priorities. Section 5.4 No. 2 shall be responsible for operation and maintenance of accordance with the provisions of Plan. District No. 2 shall, determinations relating to the expenditure of any Project Revenues and proceeds of Obligations for Processing of Construction of the Public Improvements and the payment of all Process of Construction costs, or for any other purpose with respect to the implementation, performance or enforcement of the Completion of Public Improvements. District the construction, completion, the Public Improvements in this Agreement and the Service in its discretion, make all {00141345.DOC /) 15 terms of this Agreement. Except as provided for herein for the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall have no responsibility for the financing, Processing of Construction, or the operation and maintenance of the Public Improvements. District No. 2 may transfer certain Public Improvements to the County or another public agency for ownership, operation and maintenance in accordance with the provisions of the Service Plan or intergovernmental agreements. District No. 2 shall own, manage, operate and maintain for the benefit of all property owners, residents and related persons within the Districts, without discrimination between the various areas of the Districts, all Public Improvements that are not transferred to the County or another public agency. All streets and roads owned and operated by District No. 2 shall be open for public use, subject to reasonable regulations, and shall be maintained in conformance with County road standards. All other Public Improvements and facilities of the Districts shall be available for public use, subject to reasonable regulations, and shall be maintained in a commercially reasonable manner. Section 5.5 Management of Districts. District No. 2 shall manage and administer all business affairs of the Districts, including without limitation the hiring and engagement of all employees, independent contractors, consultants, advisors, accountants, auditors, attorneys and other personnel, record - keeping, accounting and financial services, payment of Administrative Expenses, liability and property insurance, and all actions relating to statutory compliance. An executive committee of the Boards shall be constituted to facilitate ongoing communication between District No. 1 and District No. 2. The executive committee shall be composed of the president of each Board and shall also include one other Board member of each District who shall be appointed, removed, and replaced by actions of the applicable appointing Board from time to time. The executive committee shall meet periodically to discuss general management issues and to provide any comments on such issues in writing to the Boards for consideration. The executive committee may, as it deems appropriate, make recommendations to the Boards on issues on the respective Board's agenda. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the decisions of the Boards in a manner consistent with the provisions and authority conferred upon each of the Districts under this Agreement. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the provisions of the Service Plan. Additionally, the executive committee may communicate to a District on any other matter as may be directed by the other District. In no event will the executive committee have any (00141345.000 /1 16 authority to make decisions or interfere with the decisions of the Districts. Section 5.6 Administrative Expenses. To the extent that adequate funding is available from Project Revenues and other legally available sources as provided in the Fiscal Year Budget, District No. 2 shall (i) manage, operate, maintain, repair and replace all Public Improvements not transferred to the County or another district or public agency, and (ii) generally administer the operations and business of the Districts, including without limitation the payment of all Administrative Expenses or other costs associated therewith. Section 5.7 Facility Fees and Water Tap Fees. District No. 1 has entered into certain facility fee and water tap fee agreements with developers within the District. All facility fees and water tap fees paid pursuant to such agreements (regardless of designation) shall be considered Project Revenues, unless previously pledged for the repayment of any Obligations, and shall be collected and used by District No. 2 for the completion of the Public Improvements in accordance with the provisions of Section 5.4. As recognized under the Original Agreement, this Agreement shall constitute an assignment to District No. 2 of all rights and interests of District No. 1 in and to such facility fees and water tap fees. SECTION 6. EVENTS OF DEFAULT AND REMEDIES Section 6.1 Events of Default by Districts. Subject to the terms of Section 6.5, a Default or an Event of Default by either Party under this Agreement shall mean one or more of the following events: a. Any representation or warranty made in this Agreement by a Party which was materially inaccurate when made or is proven to be materially inaccurate during the Term; b. Failure of District No. 1 to impose the District No. 1 Required Mill Levy in any year or to remit District No. 1 Pledged Revenue to District No. 2; or c. Failure of District No. 2 to impose the District No. 2 Required Mill Levy in any year; or d. A Party fails to substantially observe, comply with or perform any material responsibility, obligation, duty or agreement required of it under this Agreement; provided, however, that failure on the part of District No. 2 to observe or perform any responsibility or obligation hereunder shall not relieve or release either District from imposing the District No. (00141345.DOC /) 17 1 or District No. 2 Required Mill Levy, as applicable, and further provided that failure by either District to observe or perform any duty, responsibility or obligation hereunder shall not relieve or release the other District from making any payment, levying any property tax, otherwise performing its responsibilities hereunder, or result in an amendment or the termination of this Agreement. Section 6.2 Cure Period. Except as more specifically provided in subsection a. hereof with regard to District No. l's failure to impose the District No. 1 Required Mill Levy, upon the occurrence of an Event of Default by either Party, such Party shall, upon written notice from the other Party, proceed promptly to cure or remedy such Default. Such Default shall be cured within 30 days (or immediately with respect to a monetary payment Default) after receipt of such notice, or, if such default is of a nature which is not capable of being cured within such time period, curative action shall be commenced within the cure period and diligently pursued to completion. a. In the event that District No. 1 fails to impose the District No. 1 Required Mill Levy or District No. 2 fails to impose the District No. 2 Required Mill Levy by December 1 of any year, the defaulting District shall have no opportunity to cure and, in order to ensure that the District No. 1 Required Mill Levy or the District No. 2 Required Mill Levy, as applicable, is certified by December 15 of such year, the non - defaulting District, may, without further notice to the defaulting District, immediately proceed with the remedies set forth in Section 6.3. Section 6.3 Remedies on Default. Whenever an Event of Default occurs and is not cured or cure undertaken in accordance with the provisions of Section 6.2, the non -defaulting Party may take any one or more of the following actions: a. Recovery of actual costs and damages, including reasonable attorney fees and related expenses, through any action available at law or in equity, including without limitation the right of District No. 2 to certify to the County for collection against all taxable property within District No. 1, the amount of such costs and damages as a delinquent fee for services provided by District No. 2 in accordance with the procedures set forth in Section 32-1-1101(1)(e), C.R.S., or other special proceedings; b. In the event that either District has not certified the District No. 1 or District No. 2 Required Mill Levy, as applicable, the non -defaulting District may, subject to the provisions of the 1998 Bond Resolution, enforce the (00141345.DOC /) 18 defaulting District's obligation to certify the District No. 1 or District No. 2 Required Mill Levy, as applicable, by mandamus or other action or special proceeding; c. In the event that District No. 2 fails to perform any management or operational responsibility specified herein and to cure or remedy such Default within the applicable cure period, District No. 1 may exercise temporary management responsibility over, or petition the District Court to appoint a conservator for, the Public Improvements and facilities of the Districts, including without limitation the levy, collection and expenditure of the Project Revenues to repay any Obligations currently due and to pay the Administrative Expenses of the Districts, until District No. 2 has cured or remedied such Default. In no event shall this Agreement be amended by District No. 1 in the event District No. 1 exercises its rights under this subsection c.; and d. Any other remedy available at law, in equity, or specified under the terms of this Agreement or the Service Plan, including without limitation specific performance or injunction. Section 6.4 Waivers. Except as otherwise expressly provided in this Agreement, any delay by either Party in asserting any right or remedy under this Agreement shall not operate as a waiver of any such right or limit such right in any way. Any waiver in fact made by such Party with respect to any Default by the other Party shall not be considered as a waiver of rights with respect to any other Default by the non -defaulting Party or with respect to the particular Default, except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of any right or remedy provided in this Agreement by waiver, laches or otherwise at a time when it may still hope to resolve any problem created by such Default. Section 6.5 Unavoidable Delay in Performance. Whether stated or not, all periods of time in this Agreement are subject to the provisions of this Section. Neither Party shall be considered in Default of its obligations under this Agreement in the event of unavoidable delay due to: (i) causes beyond its control and without its fault or negligence, including without limitation acts of God, public enemies, the federal, State, County or other local governments, the other Party or third parties, litigation concerning the validity and enforceability of the Service Plan, contracts implementing the Service Plan or this Agreement or relating to transactions contemplated herein (including the effect of petitions for initiative or referendum), {00141345.DOC /f 19 fires, floods, epidemics, restrictions, strikes, embargoes, and unusually severe weather or the delays of contractors or materialmen due to any of such causes; (ii) bankruptcy, insolvency, reorganization or similar actions under laws affecting creditor's rights, or any foreclosure or other exercise of remedies of any creditor or lender in connection therewith; and (iii) without limiting any of the foregoing, any action or inaction of the County, its officers, agents, agencies, departments, committees or commissioners which delays, directly or indirectly, the District's ability to perform, complete or comply with any schedule or requirement imposed by this Agreement, the Service Plan, or any Public Improvement project. In the event of the occurrence of such unavoidable delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for the actual period of such delay; provided that the Party seeking the benefit of the provisions of this Section shall, within 30 days after such Party knows of such delay, first notify the other Party of the specific delay in writing and claim the right to an extension of performance for the period of such delay; and provided further that either Party's failure to notify the other of an event constituting an unavoidable delay shall not alter, detract from or negate its character as an unavoidable delay, if such event of delay was not known or reasonably discoverable by such Party. Section 6.6 Rights and Remedies Cumulative. The rights and remedies of the Parties under this Agreement are cumulative, and the exercise by either Party of any one or more of such rights shall not preclude the exercise by it, at the same or different times, of any other right or remedy specified herein for any other Default by the other Party. SECTION 7. MISCELLANEOUS PROVISIONS Section 7.1 Title of Sections. Any title of the several parts and sections of this Agreement are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. Section 7.2 Effective Date. This Agreement shall be in full force and effect and be legally binding upon each District upon the date of its execution by the Parties. On and after the effective date, the Original Agreement shall be terminated, amended and superseded in its entirety by this Agreement. All terms and provisions of this Agreement shall apply to any and all actions and requirements of each District for the 2009 Fiscal Year and each Fiscal Year thereafter during the Term. Section 7.3 No Third -Party Beneficiary. No third -party beneficiary rights shall be created in favor of any person not a (00141345.Doc /) 20 • Party to this Agreement, unless the Parties mutually agree otherwise in writing. Section 7.4 Applicable Law. The laws of the State of Colorado shall govern the interpretation and enforcement of this Agreement. Venue shall be exclusive to the District Court in and for Weld County, Colorado. Section 7.5 Assignment. This Agreement shall not be assigned, in whole or in part, by either Party without the approval in writing of the other Party. This Agreement shall be binding on the Parties, their successors and assigns. Section 7.6 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under present or future laws effective during the Term, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by the severance of such provision from this Agreement. Further, in lieu of such illegal, invalid or unenforceable provision, there shall be added, as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable, and this Agreement shall be deemed reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of the payments required by the terms of this Agreement are determined by a court of competent jurisdiction in a final non -appealable judgment to be contrary to public policy or otherwise precluded, the Parties shall proceed in good faith to promptly restructure and/or amend this Agreement, or to enter into a new agreement to effectuate such purpose. Section 7.7 Service Plan Modifications. Neither District shall publish, without providing prior written notice to the other District and the County, any notice pursuant to Section 32- 1-207(3), C.R.S., of its intent to undertake the construction of any Public Improvement, the issuance of Obligations, the imposition of the Required Mill Levy or any other tax, rate, toll, fee or charge, or any other proposed activity of such District that is not consistent with the terms of the Service Plan or this Agreement and that would require any action to enjoin such activity as a potential or actual material departure from the Service Plan of such District be brought within 45 days of such notice. (00141345.DOC /) 21 Section 7.8 Amendments. This Agreement may be amended, in whole or in part, by written instrument executed by the Parties. Each amendment, which is in writing and signed and delivered by the Parties, shall be effective to amend the provisions hereof. Section 7.9 Entirety. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in their entirety any prior agreements, understandings, warranties or representations between the Parties with respect to the subject matter hereof, including without limitation the Original Agreement. Section 7.10 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. Section 7.11 Notices. A notice or demand under this Agreement by either Party to the other Party shall be in writing and shall be deemed sufficiently given if delivered in person, by prepaid overnight express mail or national overnight courier service, or if forwarded by registered or certified mail, postage prepaid, return receipt requested, by electronically -confirmed facsimile transmission, and addressed as follows: a. Until subsequently changed, to: Beebe Draw Farms Metropolitan District No. 1 Attention: President 16500 Beebe Draw Farms Parkway Platteville, Colorado 80651 Beebe Draw Farms Metropolitan District No. 2 Attention: President 3600 South Logan, Suite 200 Englewood, Colorado 80110 With a copy to: Paul R. Cockrel Collins Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 b. Or to such other address with respect to either Party as that Party may, from time to time, designate in writing and forward to the other Party as provided in this Section. Notices shall be deemed given upon such personal, courier or express mail delivery, or on the third business day following deposit in the U.S. Mail as provided herein. 100141345.DOC /) 22 Section 7.12 Good Faith of Parties. Except where any matter is expressly stated to be in the discretion of a Party, the Parties agree that in the performance of this Agreement or in considering any requested extension of time, each Party will act in good faith and shall not act unreasonably, arbitrarily, capriciously, or unreasonably withhold or delay any approval required by this Agreement. Section 7.13 Time. Unless the context indicates differently, all references herein to days shall be to calendar days, and all references herein to periods of time shall be to consecutive days or continuous periods of time. If the day for any performance or event provided for herein is a Saturday, Sunday or other day on which either national banks or the office of the Clerk and Recorder of the County are not open for the regular transaction of business, such day shall be extended until the next day on which such banks and office are open for the transaction of business. All times shall be of the essence. Section 7.14 Further Assurances. The Parties agree to adopt or approve such resolutions, regulations and agreements, to execute such documents or instruments, and to take such action as shall be reasonably requested by the other Party to confirm or clarify the provisions herein and to effectuate the agreements herein contained and the intent thereof. If all or any portion of the Public Improvements, Obligations or agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties shall cooperate in the joint defense thereof, and if such defense is unsuccessful, the Parties will use reasonable, diligent, good faith efforts to amend, reform or replace such precluded matters. Section 7.15 Certifications. The Parties agree to execute such documents or instruments as the other Party may reasonably request to verify or confirm the status of this Agreement or other intergovernmental agreements between the Districts, and of the performance of the obligations hereunder and such other matters as either Party may reasonably request. Section 7.16 Survival of Representations and Warranties. No representations or warranties whatever are made by any Party to this Agreement, except as specifically set forth in Section 3. The representations and warranties made by the Parties to this Agreement, and all covenants and agreements to be performed or complied with by the Parties under this Agreement shall be continuing to the end of the Term. (00141345.DOC /) 23 In Witness Whereof, the Districts have caused this Agreement to be duly executed as of the day first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 By: President ATTEST: Secretary BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: President ATTEST: Secretary {00141 JasAOC /) • • NOVEMBER 3, 2008 DISTRICT NO.1 MEETING: # 13. BOARD ORDER FOR EXCLUSION OF REI'S PROPERTY ORDER BY THE BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 FOR EXCLUSION OF REAL PROPERTY WHEREAS, on or about October 7, 2008 REI LIMITED LIABILITY COMPANY, a Wyoming Limited Liability Company (the "Petitioner"), the 100% fee owner of certain property located within the boundaries of the Beebe Draw Farms Metropolitan District No. 1 (the "District") filed a Petition (a copy of which is attached hereto as Exhibit A and incorporated herein by this reference) with the District requesting that the District exclude from the District all of the real property owned by the Petitioner described in the Petition (the "Initial Exclusion Property"); and WHEREAS, on November 3, 2008, Petitioner submitted a written request (attached hereto as Exhibit B and incorporated herein by this reference) to except from the Initial Exclusion Property that portion of the Petitioner's property set forth on Exhibit C attached hereto and incorporated herein by this reference, consisting of approximately 39 acres (the `Excepted Property"). The Initial Exclusion Property less the Excepted Property shall be referred to herein as the "Final Exclusion Property" and is more particularly set forth on Exhibit D attached hereto and incorporated herein by this reference; and WHEREAS, Petitioner is the 100% fee owner of the Final Exclusion Property; and WHEREAS, the Final Exclusion Property is also located within the boundaries of the Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"); and WHEREAS, the District and District No. 2 (the "Districts") were organized pursuant to a Consolidated Service Plan dated May 1999 and approved by the Board of County Commissioners of Weld County on July 21, 1999 (the "Service Plan"); and WHEREAS, the Districts previously entered into an Intergovernmental Agreement dated August 8, 2001, as amended March 4, 2004 and as further amended and superceded by that certain Amended and Restated Intergovernmental Agreement dated November 3, 2008 (as amended and restated, the "IGA"); and WHEREAS, pursuant to the Service Plan, the Districts were organized to provide for the financing, construction, operation and maintenance of the public improvements and services needed for the Beebe Draw Farms and Equestrian Center (the "Development"); and WHEREAS, pursuant to the Service Plan and IGA, District No. 2 is responsible for administering and operating both Districts, furnishing all services, and acquiring, installing, operating and maintaining the public improvements and services (the "Improvements"); and WHEREAS, pursuant to the Service Plan and IGA, District No. 1 is obligated to impose a debt service mill levy sufficient to pay its existing bonds and a general mill levy which revenues are to be remitted to District No. 2 for the financing, construction, and operation and maintenance of the Improvements; and ;00i4o302.DOC i 31 WHEREAS, the purpose of the Districts is to ensure that no area within the Development becomes obligated for more than its share of the costs of the Improvements and to ensure that the property tax levies remain uniform throughout the Development; and WHEREAS, pursuant to the Service Plan and IGA, District No. 1 and District No. 2 are authorized to impose a mill levy within their respective boundaries; and WHEREAS, under the Service Plan, the Districts have complete discretion to approve the inclusion and exclusion of property into and out of the boundaries of their respective District; and WHEREAS, the IGA requires the written approval of District No. 2 prior to the District granting any exclusion of property from its boundaries; and WHEREAS, at a public meeting held on November 3, 2008, District No. 2 by resolution consented to the exclusion of the Final Exclusion Property from the boundaries of District No. 1, a copy of which resolution is attached as Exhibit E and incorporated herein by this reference; and WHEREAS, the Petition was heard at a public meeting of the Board of Directors of the District on October 20, 2008 at the hour of 6:00 p.m. at Pelican Lake Ranch Community Center, 16502 Beebe Draw Farms Parkway, Platteville, Colorado, after publication of notice on the filing of such Petition, the place, time and date of such meeting, the name and address of the Petitioner, and a general description of the property to be excluded in the Greeley Tribune on October 14, 2008, a copy of which proof of publication is attached hereto as Exhibit F and incorporated herein by this reference; and WHEREAS, public notice calling for a public hearing on the request for approval of the Petition has been published in accordance with Section 32-1-501(2), C.R.S.; and WHEREAS, following the public hearing on October 20, 2008, the District conditionally approved the exclusion of the Initial Exclusion Property subject to the satisfaction of certain conditions; and WHEREAS, the Board of Directors has taken into consideration all of the factors set forth in Section 32-1-501(3), C.R.S; and WHEREAS, for the reasons set forth herein, it is deemed in the best interests of the District and the Petitioner that the Final Exclusion Property be excluded from the District, effective as of January 1, 2009. NOW, THEREFORE, be it resolved by the Board of Directors of District that: 1. The Board of Directors finds that the following conditions established by the Board at the public hearing on October 20, 2008 have been satisfied: {00140302.DOC / 3l 2 (a) The Petitioner has paid or will cause to be paid the costs associated with processing the Petition and requesting the Court to enter the Order for Exclusion, and recording thereof; and (b) The District and District No. 2 have entered into the IGA setting forth those amendments necessitated by the Exclusion of the Final Exclusion Property to assure the proper implementation of the Service Plan and the financing, construction, operation and maintenance of the Improvements; and (c) At a public meeting held on November 3, 2008, District No. 2 consented to the exclusion of the Final Exclusion Property from the boundaries of District No. 1, as required by the IGA. 2. The Board of Directors further finds that: (a) exclusion of the Final Exclusion Property is in the best interests of the Final Exclusion Property as it facilitates the financing, construction, operation and maintenance of the Improvements set forth in the Service Plan; (b) exclusion of the Final Exclusion Property is in the best interests of the District as it facilitates the financing, construction, operation and maintenance of the Improvements set forth in the Service Plan; (c) exclusion of the Final Exclusion Property is in the best interests of the County in which the District is located as it facilitates the financing, construction, operation and maintenance of the Improvements set forth in the Service Plan which was approved by the County; (d) the relative costs and benefit to the Final Exclusion Property justify exclusion from the District's services; (e) the ability of the District in cooperation with District No. 2 pursuant to the IGA, to provide economical and sufficient service to both the Final Exclusion Property and all of the properties within the District's boundaries will not be adversely affected; (0 the costs to provide the services to the Final Exclusion Property by District No. 2 pursuant to the IGA will be provided more efficiently and therefore will be less; (g) excluding the Final Exclusion Property will have a positive impact on employment and other economic conditions in the District and surrounding areas as it will facilitate the completion, operation and maintenance of the Improvements for the Development as well as additional amenities to serve the current and future residents within the Development; (h) excluding the Final Exclusion Property will have a positive economic impact on the region and on the District, surrounding area and State as a whole as it will facilitate the completion, operation and maintenance of the Improvements for the Development as well as additional amenities to serve the current and future residents within the Development; (00140302.DOC / 3) 3 (i) more economically feasible alternative services will be provided to the Final Exclusion Property by District No. 2 pursuant to the IGA in the form of Improvements being constructed which will directly serve the Final Exclusion Property; and (j) it should not be necessary for the District to levy any additional costs on other property within the District if the Petition is granted as modified because the Service Plan and IGA require uniform taxation on all property within the Districts. 3. The Board of Directors of the District shall and hereby does further acknowledge and resolve that in accordance with Section 32-1-503, C.R.S., the Final Exclusion Property described herein shall be obligated to the same extent as all other property within the District with respect to and shall be subject to the levy of taxes for the payment of that proportion of the outstanding indebtedness of the District and interest thereon existing immediately prior to the effective date of the Order for Exclusion consisting of the Beebe Draw Farms Metropolitan District General Obligation Bonds, Series 1998, in the original principal amount of $2,000,000, of which approximately $1,475,000 is currently outstanding ("Outstanding Indebtedness"). 4. The Board of Directors of the District shall and hereby does further order that, in accordance with Section 32-1-503(1), C.R.S., upon the effective date of the Order excluding the Final Exclusion Property, the Final Exclusion Property shall not be subject to any property tax levied by the Board of Directors of the District for the operating costs of the District. 5. The Board of Directors of the District shall and hereby does further resolve that in its discretion it may establish, maintain, enforce and, from time to time, modify service charges, tap fees, and other rates, fees, tolls and charges, upon residents or users in the area of the District as it existed prior to the exclusion, including the Final Exclusion Property, to supplement the proceeds of tax levies in the payment of the Outstanding Indebtedness and the interest thereon. 6. It is therefore ordered that the Petition be granted, as modified by the exception of the Excepted Property; and that the boundaries of the District shall be altered by the exclusion of the Final Exclusion Property as described below; and that the District Court of Weld County, Colorado, in which Court an Order was entered establishing this District, be requested to enter an Order that such real property be excluded from the District, effective as of January 1, 2009. The name of the fee owner of one hundred percent (100%) of the Final Exclusion Property and the legal description of the Final Exclusion Property, in conformance with title documentation to be submitted by the Petitioner confirming fee ownership of the Final Exclusion Property in the name of REI Limited Liability Company, are as follows: Owner: Legal Description of the Final Exclusion Property: REI Limited Liability Company, a Wyoming limited liability company qualified and doing business in Colorado as Investors Limited Liability Company The land as described on Exhibit I) and incorporated herein by this reference. (00140302.DOC 13) 4 APPROVED AND ADOPTED this 3rd day of November, 2008. BEEBE DRAW FARMS METROPOLITAN DISTIUGT-Ai4. I By: Its: Attest: (00140136.DOC / 3 } 5 • • EXHIBIT A Petition of REI, Limited Liability Company {00140U6.DOC 12 { PETITION FOR EXCLUSION In accordance with Section 32-1-501(1), C.R.S., the undersigned, REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company (the "Petitioner"), does hereby respectfully petition the Beebe Draw Farms Metropolitan District No. 1 ("District"), acting by and through its Board of Directors ("Board"), for the exclusion of certain real property from the boundaries of the District, subject to the conditions described herein (the "Exclusion"). The Petitioner represents to the District as follows: 1. The land to be excluded consists of approximately 2,266.118 acres situate in the County of Weld, State of Colorado and is legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"), and, at present, constitutes a portion of the District. 2. The Petitioner is the fee owner of one hundred percent (100%) of the Property and no other person(s), entity or entities own(s) an interest in the Property except as beneficial holder(s) of encumbrances. 3. The Petitioner hereby assents to the exclusion of the Property from the boundaries of the District and to the entry of an Order in the District Court, County of Weld, State of Colorado (the "Court"), excluding the Property from the boundaries of the District. The Petitioner acknowledges that there shall be no withdrawal of the Petition from consideration by the Board after publication of notice of the hearing therefore, without the Board's consent. 4. If requested by the Petitioner, the District and the Petitioner shall enter into an Exclusion Agreement which addresses the conditions of the exclusion and the conditions upon which the order of exclusion will be recorded with the Weld County Clerk and Recorder. 5. The Petitioner agrees that it will pay, or cause to be paid, the fees incurred by the District, if any, for the Exclusion if this Petition is accepted, including the costs of publication of appropriate legal notices and legal fees and costs incurred by the District in connection with the Exclusion of the Property. The Petitioner hereby requests that the Board approve the Exclusion of the Property from the boundaries of the District and that the District file a motion with the Court requesting that an Exclusion Order be entered, stating that from and after the effective date of the Exclusion Order, the Property shall not be liable for bonded indebtedness, assessments or other obligations of the District which may be incurred after the effective date of the Order. {00132502.DOC v:1} Signed this I i tnday of September, 2008. REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company STAT OFORADO eta COUNT OF Lane By: Name: Christine Hethcock Its: Manager Address of Petitioner: 3 GOO 5, Len Sv*t Zoo PLR kewalhd tO 8'eLiy. SS. The foregoing instrument was acknowledged before me this /7" day of September, 2008, by Christine Hethcock, as Manager of REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company. Witness my hand and official seal. My commission expires: rp-/P-O7 (00132302.DOC v:1) 2 EXHIBIT A Legal Description of Property {00132502.DOC v:I } Beebe Draw Filing 2 Legal Description: Legal Description of a parcel of land being a portion of that certain parcel of land described on the boundary survey recorded April 12, 1995 in Book 1487, Page 123 under Reception No. 2433894 on file in the office of the Clerk and Recorder, Weld County, Colorado situate in Sections 4, 5, 8, 9, 10 and 17, Township 3 North, Range 65 West of the 6's Principal Meridian being more particularly described as follows: Beginning at the Southwest Corner of said Section 8 and considering the West line of said Section 8 as bearing North 00°09'35" West and with all bearings contained herein relative thereto; thence along said West line North 00°09'35" West 1994.84 feet to a point on the Southerly line of the corrected first filing plat of Beebe Draw Perms and Equestrian Center recorded December 13, 1989 in Book 1251 under Reception No. 02200074 according to the plat on file in the office of the Clerk and Recorder, said County; thence along the boundary of said plat the following 53 courses and distances; South 73°10'00" East 888.37 feet; thence South 16°50'00" West 153.46 feet; thence South 46°50'08" East 749.22 feet; thence North 55°46'07" East 97.84 feet; thence South 46°59'23" East 1326.17 feet; thence North 83°33'14" East 694.12 feet; thence North 32°48'49" East 257.46 feet to a point on a curve concave to the Northeast having a central angle of 21°56'45" and a radius of 993.66 feet; a radial line passing through said point bears South 31 °07'32" West; thence Southeasterly along the arc of said curve 380.60 feet to the end of said curve; thence tangent from said curve South 80°49'12" East 169.63 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 26°11'26" and a radius of 1221.67 feet; thence Southeasterly along the arc of said curve 558.44 feet to the end of said curve; thence tangent from said curve South 54°37'46" East 70.54 feet; thence North 35°22'14" East 150.48 feet; thence North 85°40'29" East 507.75 feet; thence South 87°32'47" East 399.71 feet; thence South 78°20'53" East 391.38 feet; thence North 13°54'57" West 1387.81 feet; thence South 88°16'34" East 170.52 feet; thence South 37°13'43" East 1250.00 feet; thence South 62°09'58" East 450.00 feet; thence South 79°40'14" East 400.00 fret; thence South 75°25'39" East 450.00 feet; thence North 89°41'05" East 398.67 feet; thence North 00°22'03" East 470.01 feet; thence South 89°41'05" West 50.00 feet; thence North 00°22'04" East 495.00 feet; thence North 89°37'55" West 91.83 feet; thence North 42°24'27" West 646.46 feet; thence North 72°26'31" West 54.60 feet; thence North 17°1709" West 207.35 feet; thence North 00°16'43" East 348.60 feet; thence North 12°04'51" West 380.71 feet; thence North 06°35'57" West 425.17 feet; thence North 41°32'24" West 327.37 feet; thence North 31°19'19" West 302.66 feet; thence North 23°33'38" West 293.98 feet; thence North 20°56'25" West 650.00 feet; thence North 34°55'56" West 423.91 feet; thence North 52°36'54" West 357.78 feet to a point on the South right-of-way line of Beebe Draw Farms Parkway; thence along said South right-of-way line the following three courses and distances; South 37°23'06" West 155.00 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 28°09'58" and a radius of 1141.35 feet; thence Southwesterly along the arc of said curve 561.08 feet to the end of said curve; thence tangent from said curve South 65°33'04" West 266.94 feet; thence North 24°26'46" West 100.00 feet; thence North 46°08'35 West 1117.27 feet; thence South 74°02'57" West 850.00 feet to a point on a curve concave to the Southwest having a central angle of 21°01'08" and a radius of 986.23 feet; a radial line passing though said point bears North 62°51'38" East; thence Northwesterly along the arc of said curve 361.80 feet to the end of said curve; thence tangent from said curve North 48°09'30" West 225.00 feet; thence South 41°50'30" West 235.00 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 20°43'40" and a radius of 225.00 feet; thence Southwesterly along the arc of said curve 81.40 feet to the end of said curve; a radial line passing through said end of curve bears North 68°53'10" West; thence departing said curve North 68°53'10" West 1 • • 450.00 feet; thence South 38°50'00" West 331.13 feet; thence North 72°28'11" West 508.22 feet; thence South 86°32'30" West 1532.88 feet; thence South 89°5075" West 200.00 feet to a point on the West line of said Section 8; thence departing said corrected first filing plat of Beebe Draw Frames and Equestrian Center and along said West line of said Section 8 North 00°09'35" West 206.16 feet to the Northwest Corner of said Section 8; thence along the West line of the Southwest Quarter of said Section 5 North 00°25'20" West 2654.03 feet to the West Quarter Corner of said Section 5; thence along the West line of the Northwest Quarter of said Section 5 North 00°24'27" West 1327.22 feet to the Southwest Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the North Half of the Northwest Quarter of said Section 5 North 89°44'21" East 2631.31 feet to the Southeast Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the Northwest Quarter of the Northeast Quarter from said Section 5 North 89°4471" East 1331.58 feet to the Southeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the East line of the Northwest Quarter of the Northeast Quarter of said Section 5 North 00°38'58" West 1325.38 feet to the Northeast Corner of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the North line of the Northeast Quarter of said Section 5 North 89°39'41" East 1333.17 feet to the Northeast Corner of said Section 5; thence along the North line of the Northwest. Quarter of said Section 4 North 89°45'43" East 2638.09 feet to the North Quarter Corner of said Section 4; thence along the North line of the Northeast Quarter of said Section 4 North 89°24'30" East 805.01 feet; thence departing said North line South 40°03'54" East 9.61 feet; thence South 10°09'16" West 45.49 feet; thence South 27°01'56" West 281.98 feet; thence South 35°02'52" West 129.95 feet; thence South 46°2435" West 113.95 feet; thence South 67°56'11" West 114.41 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 43°14'52" and a radius of 210.00 feet; thence Southwesterly along the arc of said curve 158.51 feet to the end of said curve; thence tangent from said curve South 24°41'19" West 39.72 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 68°10'08" and a radius of 217.23 feet; thence Southeasterly along the arc of said curve 258.45 feet to the end of said curve; thence tangent from said curve South 43°28'49" East 159.97 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 48°38'11" and a radius of 81.88 feet; thence Southwesterly along the arc of said curve 69.51 feet to the end of said curve; thence tangent from said curve South 05°0971" West 19.20 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 25°54'10" and a radius of 260.90 feet; thence Southwesterly along the arc of said curve 117.95 feet to the end of said curve; thence tangent from said curve South 31°03'31" West 130.58 feet; thence South 09°40'49" West 95.26 feet; thence South 03°11'34" East 116.07 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 36°30'36" East and a radius of 180.24 feet; thence Southeasterly along the arc of said curve 114.85 feet to the end of said curve; thence tangent from said curve South 39°42'10" East 116.57 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 45°22'31" East and a radius of 114.82 feet; thence Southeasterly along the arc of said curve 90.93 feet to the end of said curve; thence tangent from said curve South 85°04'41" East 170.71 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 68°29'30" and a radius of 126.33 feet; thence Southeasterly along the arc of said curve 151.02 feet to the end of said curve; thence tangent from said curve South 16°35'11" East 120.95 feet to the beginning of a tangent curve concave to the West having a central angle of 25°35'07" and a radius of 440.41 feet; thence Southwesterly along the arc of said curve 196.66 feet to the end of said curve; thence tangent from said curve South 08°59'57" West 101.24 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 59°32'10" and a radius of 242.34 feet; thence Southeasterly along the arc of said curve 251.82 feet to the end of said curve; thence tangent from said curve South 50°32'12" East 97.62 feet; thence North 89°31'48" East 283.17 feet; thence South 31°1876" Bast 113.96 feet; thence South 58°32'01" West 57.39 feet; thence South 31°27'59" East 522.19 feet; thence South 10°25'00" East 99.33 feet; thence South 33°44'57" East 157.31 feet; thence South 51°33'07" West 95.52 feet; thence South 2 00°23'23" East 177.92 feet; thence South 10°18'08" East 78.26 feet; thence South 30°46'04" East 152.46 feet; thence South 47°55'59" East 265.05 feet; thence South 37°5877" West 164.42 feet; thence South 06°08'57" West 239.20 feet; thence South 33°32'01" East 129.62 feet; thence South 74°20'38" East 218.49 feet; thence South 21°05'43" East 136.12 feet; thence South 05°34'34" East 216.02 feet; thence South 40°38'47" East 130.48 feet; thence South 06°3774" West 112.76 feet; thence South 13°34'05" East 59.67 feet; thence South 35°26'15" East 136.24 feet; thence South 49°59'28" East 73.11 feet; thence South 72°02'53" East 149.26 feet; thence South 28°24'37" East 133.73 feet; thence South 40°21'43" East 122.55 feet; thence South 31°08'11" East 168.24 feet; thence South 35°26'36" East 144.84 feet; thence South 52°48'46" East 145.60 feet; thence South 53°35'11" East 274.60 feet; thence South 01°31'42" West 75.03 feet; thence South 30°03'25" West 263.26 feet; thence South 06°03'06" East 282.44 feet; thence South 25° 15'38" East 337.55 feet; thence South 23°51'00" East 264.59 feet; thence South 29°30'32" East 174.35 feet; thence South 37°11'17" East 96.99 feet; thence South 52°03'02" East 69.68 feet; thence South 55°31'03" East 148.65 feet; thence South I6°11'28" East 138.93 feet; thence South 42°52'22" East 177.69 feet; thence South 25°09'33" East 155.19 feet; thence South 24°47'22" East 180.62 feet; thence South 36°43'50" East 146.03 feet; thence South 25°08'32" West 111.15 feet; thence South 02°01'46" East 227.19 feet; thence South 20°03'30" East 193.90 feet; thence South 12°32'52" East 346.85 feet; thence South 10°2278" West 264.13 feet; thence South 05°07'51" West 157.19 feet; thence South 32°32'42" West 220.12 feet; thence South 19°19'50" West 268.66 feet; thence South 38°04'09" West 284.92 feet; thence South 79°43'19" West 714.61 feet; thence South 24°52'21" West 224.67 feet; thence South 07°13'48" East 37.52 feet to a point on the South line of said Section 10; thence along said South line South 89°28'30" West 283.01 feet to the Northeast Corner of said Section 9; thence along the South line of said Section 9 South 89°41'18" West 5121.15 feet to the Northeast Corner of said Section 17; thence along the East line of said Section 17 South 00°30'21" East 5282.59 feet to the Southeast Corner of said Section 17; thence along the South line of said Section 17 South 89°33'05" West 5327.95 feet to the Southwest Corner of said Section 17; thence along the West line of said Section 17 North 00°29'44" West 5259.39 feet to the POINT OF BEGINNING. EXCEPTING THEREFROM the following two (2) parcels: Parcel 1- School Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4 and the Northeast Quarter of Section 5, Township 3 North, Range 65 West of the 6°i P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 844.05 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence South 00°19'37" West 674.51 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 10°04'02" and a radius of 435.00 feet; thence Southwesterly along the arc of said curve 76.43 feet to the end of said curve, a radial line passing through said end of curve bears South 79°3670" East; thence departing said curve South 89°45'34" West 2157.24 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along said East line North 00°38'58" West 748.22 feet; thence departing said East line North 89°39'41" East 1332.98 feet; thence North 89°45'43" East 843.75 feet to the TRUE POINT OF BEGINNING. 3 • • Parcel 2 - Fire Station Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4, Township 3 North, Range 65 West of the 6'" P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 924.06 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence North 89°45'43" East 400.02 feet; thence South 00°19'37" West 404.39 feet; thence North 89°40'23" West 400.00 feet; thence North 00° 19'37" East 400.44 feet to the TRUE POINT OF BEGINNING. Containing 2,266.118 acres, more or less, and is subject to all easements, agreements and rights -of -way of record. 4 EXHIBIT B Written Request to Except Certain Property from the Initial Exclusion Property {00140136.DOC / 21 November 3, 2008 VIA HAND DELIVERY Beebe Draw Farms Metropolitan District No. I Board of Directors Collins, Cockrel & Cole 390 Union Blvd. #400 Lakewood, CO 80228 Re: REI Limited Liability Company Petition for Exclusion Dear Board: As you know, on or about October 7, 2008, REI Limited Liability Company ("FtEI") submitted a Petition for Exclusion ("Petition") with the Beebe Draw Farms Metropolitan District No. 1 ("District") requesting the District exclude from the boundaries of the District the real property described in Exhibit A of the Petition ("Initial Exclusion Property"). The Initial Exclusion Property consisted of approximately 2,266 acres of undeveloped property. Since the filing of its Petition, REI has become aware of certain issues related to ownership and title of approximately 39 acres of property contained within the Initial Exclusion Property. REI is currently working with its legal counsel and the title company to resolve all ownership issues as soon as possible. In the meantime, REI requests that the Initial Exclusion Property be modified to except approximately 39 acres of property, as more particularly set forth on Exhibit A attached hereto and incorporated herein by this reference ("Excepted Property"). Accordingly, REI respectfully requests that the District grant its Petition, as modified, to exclude that property set forth on Exhibit B attached hereto and incorporated herein by this reference (which represents the Initial Exclusion Property less the Excepted Property). At such time when all ownership and title issues have been resolved, REI will submit a petition to the District to exclude the Excepted Property. Very truly yours, Christine Hethcock REI Limited Liability Company Manager 3600 S. Logan, Suite 200 Englewood, CO 80113 Enclosures cc: Vince Toenjes, Esq. McGeady Sisneros, P.C. (00135859.DOC v:11 EXHIBIT A ' EXCEPTED PROPERTY The following described real property located in the County of Wild, State,.of ColoraAos section a: The S% of the NWk except for the following desaribed parcels Commencing at the Northeast corner of the. NW+k .of Section 4, thence along the North line of the Said NWk, South 09.35106" West, 30_00 $Mts thence south 00.38'25" Nest, 30400 Lest paratie1'pithfhe last line of said.NNk to the true Point of Beginning: thence continuing South 00°30f2011 Nast, 301.71 flats thence seuth O'9.36'OJ"Vest, 208.71 feats. thence North 00.35'25" West, 308.71 Teets thence parallel with -the North lJn/ of said ANk'Nord1 09.35105" Nast,. 208.71feat to the True Point of Bpgixu►ing. Said parcel contains 39 acres, more or less. • also blown by street and fluter es: unimproved land; no street address, With all its appurtenances. EXHIBIT B Beebe Draw Filing 2 Legal Descripton: Legal Description of a parcel of land being a portion of that certain parcel of land described on the boundary survey recorded April 12, 1995 in Book 1487. Page 123 under Reception No. 2433894 on file in the office of the Clerk and Recorder, Weld County, Colorado situate in Sections 4, 5, 8, 9, 10 and 17, Township 3 North, Range 65 West of the 6aPrincipal Meridian being more particularly described as follows: Beginning at the Southwest Corner of said Section 8 and considering the West line of said Section 8 as bearing North 00°09'35" West and with all bearings contained herein relative thereto; thence along said West line North 00°09'35" West 1994.84 feet to a point on the Southerly line of the corrected first filing plat of Beebe Draw Farms and Equestrian Center recorded December 13, 1989 in Book 1251 under Reception No. 02200074 according to the plat on file in the office of the Clerk and Recorder, said County; thence along the boundary of said plat the following 53 courses and distances; South 73°10'00" East 888.37 feet; thence South I6°50'00" West 153,46 feet; thence South 46°50'08" East 749.22 fat; thence North 55°46'07" East 97.84 feet; thence South 46'59'23" East 1326.17 feet; thence North 83°33'14" East 694.12 feet; thence North 32°48'49" Bast 257.46 feet to a point on a curve concave to the Northeast having a central angle of 21°56'45" and a radius of 993.66 feet; a radial line passing through said point bears South 31°07'32" West; thence Southeasterly .along the arc of said curve 380.60 feet to the end of' said curve; thence tangent from said curve South 80°49'12" Bat 169.63 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 26°11'26" and a radius of 1221.67 feet; thence Southeasterly along the arc of said curve 558.44 feet to the end of said curve; thence tangent from said curve South 54°37'46" East 70.54 feet; thence North 35°22'14" East 150.48 feet; thence North 85°40'29" East 507.75 feet; thence South 87°32'47" East 399.71 feet; thence South 78°20'53" East 391.38 feet; thence North 1394'57" West 1387.81 feet; thence South 88°16'34" Bat 170.52 feet; thence South 37°13'43" East 1250.00 feet; thence South 62°09'58" East 450.00 feet; thence South 79°40'14" East 400.00 feet; thence South 75°25'39" East 450.00 feet; thence North 89°41'05" East 398.67 feet; thence North 00°22'03" East 470.01 feet; thence South 89°41'05" West 50.00 feet; thence North 00°22'04" East 495.00 Feet; thence North 89'37'55" West 91.83 feet; thence North 42°24'27" West 646.46 feet; thence North 72°26'31" West 54.60 feet; thence North 1797'09" West 207.35 feet; thence North 00°16'43" East 34840 feet; thence North 12°04'51" West 380.71 feet; thence North 06'35'57" West 425.17 feet; thence North 41°32'24" West 327.37 feet; thence North 3199'19" West 302.66 feet; thence North 23°33'38" West 293.98 feet; thence North 20°5675" West 650.00 feet; trance North 34°55'56" West 423.91 feet; thence North 52°36'54" West 357.78 feet to a point on the South right-of-way line of Beebe Draw Perms Parkway; thence along said South right-ofway tine the following three courses and distances; South 37'23'06" West 155.00 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 28°09'58" and a radius of 1141.35 feet; thence Southwesterly along the arc of said curve 561.08 feet to the end of said curve; thence tangent from said curve South 65°33'04" West 266.94 feet; thence North 24'26'46" West 100.00 feet; thence North 46'08'35 West 1117.27 feet; thence South 74°02'57" West 850.00 feet to a point on a curve concave to the Southwest having a central angle of 21°01'08" and a radius of 986.23 feet; a radial line passing though said point bears North 62°51'38" Ease thence Northwesterly along the arc of said curve 361.80 feet to the end of said curve; thence tangent from said curve North 48°09'30" West 225.00 feet; thence South 4190'30" West 235.00 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 20°43'40" and a radius of 22500 feet: thence Southwesterly along the arc of said curve 81.40 feet to the end of said curve; a radial line passing through said end of curve bears North 68°53'10" West; thence departing said curve North 68°53'10" West 1 • 450.00 feet; thence South 38°50'00" West 331.13 feet; thence North 72°28'11" West 508.22 feet; thence South 86°32'30" West 1532.88 feet; thence South 89°5025" West 200.00 feat to a pint on the West line of said Section 8; thence departing said corrected first filing plat of Beebe Draw Frames and Equestrian Center and along said West line of said Section 8 North 00°09'35" West 206.16 feet to the Northwest Corner of said Section 8; thence along the West line of the Southwest Quarter of said Section 5 North 00°25'20" West 2654.03 feet to the West Quarter Corner of said Section 5; thence along the West line of the Northwest Quarter of said Section 5 North 00°24'27" West 1327.22 feet to the Southwest Corner of the North Half of the Northwest Quarter of said Section S; thence along the South line of the North Half of the Northwest. Quarter of said Section S North 89°4421" East 2631.31 feet to the Southeast Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the Northwest Quarter of the Northeast Quarter from said Section 5 North 89°44'21" East 1331.58 feet to the Southeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the East line of the Northwest Quarter of the Northeast Quarter of said Section 5 North 00°38'58" West 1325.38 feet to the Northeast Comer of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the North line of the Northeast Quarter of said Section 5 North 89'39'41" East 1333.17 feet to the Northeast Corner of said Section 5; thence along the North line of the Northwest Quarter of said Section 4 North 89°45'43" Bast 2638.09 feet to the North Quarter Corner of said Section 4; thence along the North line of the Northeast Quarter of said Section 4 North 89°24'30" East 805.01 feet; thence departing said North line South 40°03'54" Bast 9.61 feet; thence South 10°09'I6" West 45.49 feet; thence South 27°01'56" West 281.98 feet; thence South 35°02'52" West 129.95 feet; thence South 46°24'35" West 113.95 feet; thence South 67°56'11" West 114.41 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 43°14'52" and a radius of 210.00 feet; thence Southwesterly along the arc of said curve 158.51 feet to the end of said curve; thence tangent from said curve South 24°41'19" West 39.72 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 68°10'08" and a radius of 217.23 feet; thence Southeasterly along the arc of said curve 258.45 feet to the end of said curve; thence tangent from said curve South 43°28'49" East 159.97 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 48°38'11" and a radius of 81.88 feet; thence Southwesterly along the arc of said curve 69.51 feet to the end of said curve; thence tangent from said curve South 05°09'21" West 19.20 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 25°54'10" and a radius of 260.90 feet; thence Southwesterly along the arc of said curve 117.95 feet to the end of said curve; thence tangent from said curve South 31°0331" West 130.58 feet; thence South 09°40'49" West 95.26 feet; thence South 03°11'34" East 116.07 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 36°30'36" East and a radius of 180.24 feet; thence Southeasterly along the arc of said curve 114.85 feet to the end of said curve; thence tangent from said curve South 39°42'10" East 116.57 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 45°22'31" East and a radius of 114.82 feet; thence Southeasterly along the arc of said curve 90.93 feet to the end of said curve; thence tangent from said curve South 85°04'41" East 170.71 fret to the beginning of a tangent curve concave to the Southwest having a central angle of 68°29'30" and a radius of 126.33 feet; thence Southeasterly along the arc of said curve 151.02 feet to the end of said curve; thence tangent from said curve South 16°35'11" Bast 120.95 feet to the beginning of a tangent curve concave to the West having a central angle of 25°35'07" and a radius of 440.41 feet; thence Southwesterly along the arc of said curve 196.66 feet to the end of said curve; thence tangent from said curve South 08°59'57" West 101.24 feet to the beginning of a tangent curve concave to die Northeast having a central angle of 59°32'10" and a radius of 242.34 feet; thence Southeasterly along the arc of said curve 251.82 feet to the end of said curve; thence tangent from said curve South 50°32'12" Han 97.62 feet; thence North 89°31'48" East 283.17 feet; thence South 31°18'26" Bast 113.96 feet; thence South 58°32'01" West 57.39 feet; thence South 31°27'59" East 522.19 feet; thence South 10°25'00" East 99.33 feet; thence South 33°44'57" Bast 157,31 feet; thence South 51°33'07" West 95.52 feet; thence South 2 00°23'23" East 177.92 feet; thence South 10°18'08" Bast 78.26 feet; thence South 30'46'04" East 152.46 feet; thence South 47°55'39" East 265.05 feet; thence South 37°5827" West 164.42 feet; thence South 06°08'57" West 239.20 feet; thence South 33°32'01" East 129.62 feet; thence South 74°20'38" East 218.49 feet; thence South 21°05'43" East 136.12 feet; thence South 05°34'34" East 216.02 feet; thence South 40°38'47" East 130.48 feet; thence South 06°37'24" West 112.76 feet; thence South 13°34'05" East 59.67 feet; thence South 35°26'15" East 136.24 feet; thence South 49°59'28" East 73.11 feet; thence South 72°02'53" Haat 149.26 feet; thence South 28°24'37" East 133.73 feet; thence South 40°2143" East 122.55 feet; thence South 31°08'11" East 168.24 feet; thence South 35°26'36" East 144.84 feet; thence South 52°48'46" East 145.60 feet; thence South 53°35'11 East 274.60 feet; thence South 01 °31'42" West 75.03 feet; thence South 30'0375" West 263.26 feet; thence South 06°03'06" East 282.44 feet; thence South 2.5°15'38" East 337.55 feet; thence South 23°51'00" East 264.59 feet; thence South 29°30'32" East 174.35 feet; thence South. 37°11'17" East 96.99 feet; thence South 52°03'02" East 69.68 feet; thence South 55°31'03" East 148.65 feet; thence South 16°11'28" East 138.93 feet; thence South 42°5272" East 177.69 feet; thence South 25°09'33" Hest 155.19 feet; thence South 24°47'22" Bast 180.62 feet; thence South 36°43'50" East 146.03 feet; thence South 25°08'32" West 111.15 feet; thence South 02°01'46" East 227.19 feet; thence South 20°03'30" East 193.90 feet; thence South 12°32'52" East 346.85 feet; thence South 10°22'25" West 264.13 feet; thence South 05.07'51" West 157.19 feet; thence South 32°32'42" West 220.12 feet; thence South 19'19'50" West 268.66 feet; thence South 38°04'09" West 284.92 feet; thence South 79°43'19" West 714.61 feet; thence South 2492'21" West 224.67 feet; thence South 07°13'48" East 37.52 feet to a point on the South line of said Section 10; thence along said South line South 89°28'30" West 283.01 feet to the Northeast Corner of said Section 9; thence along the South line of said Section 9 South 89°41'18" West 5121.15, feet to the Northeast Corner of said Section 17; thence along the East line of said Section 17 South 00'30'21" East 5282.59 feet to the Southeast Corner of said Section 17; thence along the South line of said Section 17 South 89°33'05" West 5327.95 feet to the Southwest Corner of said Section 17; thence along the West line of said Section 17 North 00°29'44" West 5259.39 feet to the POINT OF BEGINNING. EXCEPTING THEREFROM the following two (2) parcels: Parcel 1 - School Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4 and the Northeast Quarter of Section 5, Township 3 North, Range 65 West of the 6u P.M., Weld County, Colorado, being more particularly described as follows:. Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quaver of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 844.05 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence South 00°19'37" West 674.51 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 10°04'02" and a radius of 435.00 feet; thence Southwesterly along the arc of said curve 76.43 feet to the end of said curve, a radial line passing through said end of curve bears South 79°3670" East; thence departing said curve South 89°45'34" West 2157.24 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along said East line North 00°38'58" West 748.22 feet; thence departing said East line North 89°39'41" East 1332.98 feet; thence North 89°45'43" East 843.75 feet to the TRUE POINT OF BEGINNING. 3 Parcel 2 - Fire Station Site Legal Description of a parcel of land- being a portion of the Northwest Quarter of Section 4, Township 3 North, Range 65 West of the 6'" P.M., Weld County, Colorado, beingmore particularly described as follows: Beginning at the Northwest corner of said Section 4 andconsidering the Noah line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 924.06 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence North 89°45'43" East 400.02 feet; thence South 00°19'37" West 404.39 feet; thence North 89°40'23" West 400.00 feet; thence North 00°19'37" East 400.44 feet to the TRUE POINT OF BEGINNING. EXCEPT FOR THE FOLLOWING PROPERTY; The following described real property located in the County of Weld, State of Colorado: zasughip 3 North. Rance E8 West of the 8th P.N.: • Section 4: The NO of the N8* except for, the following described parcels Commencing. at the Northeast corner of the Air -of Section 4, thence along the North line of the said !Wks ninth 89°35'06" West, 3o_00"teet; thence' South 00°35'28^ East, 30.00 feet parallel:with the East line of said Mir to the true Point of Beginnings thence continuing south 00°35;25" Nast, 208.7% feet; thence South 89°35'05" West, 208.71 fort thence North 00.38125" West, 201.71 feet:.thence parallel with the North line of said Nigh North 89°73'05" East, 208.71 feet to the True Point of Beginning. Said parcel contains 39 acres, more or less. also known by street and number as: unimproved land; no street addrese, with all its appurtenances. Containing 2227.118 acres, more or less 4 EXHIBIT C Excepted Property (001401J6.D0C / 21 ' EXCEPTED PROPERTY MSS S i9to follovIng dssoribed seal proyarty located in the County of Weld, eta* of Celoradot sammaasizaamigassatawastiss saatiea a: Obi int of the In otOnt for. the *elietag daseribd papule �at the Northeast asrnar of tba : iectian 4, than along the north a ling t the slant SI, South 11'!¢e01e Nest, 30.00'foott ttlos South 00•li'9ia Stab, • 30.00 fat punillak with the net line at nit St to Ines; t r a point' et sepinningt . 'theme oontinulnq south 00.30,30' Jut, *11.7i fleet; teas seam 0!•!0'oee Pe.t, SILTS fatt. thanes North • Gown 'iae neat, x00.71 feet; rhos e with Lebo North Unto; gait rfli -North cot t o the t of *05.71 , • satR >»l ooatains 30 acres, sore or lees. also known W stet and saber ass aaisproted 3aa di no attest address, with all its sgpastaongss. . EXHIBIT D Final Exclusion Property (00140136.DOC / 2 ) Beebe Draw Filing 2 Legal Description: A parcel of land being a portion of that certain parcel of land described on the boundary survey recorded April 12, 1995 in Book 1487, Page 123 under Reception No. 2433894 on file in the office of the Clerk and Recorder, Weld County, Colorado situate in Sections 4, 5, 8, 9,10 and 17, Township 3 North, Range 65 West of the 6th Principal Meridian being more particularly described as follows: Beginning at the Southwest Corner of said Section 8 and considering the West line of said Section 8 as bearing North 00°09'35" West and with all bearings contained herein relative thereto; thence along said West line North 00°09'35" West 1994.84 feet to a point on the Southerly line of the corrected first filing plat of Beebe Draw Farms and Equestrian Center recorded December 13, 1989 in Book 1251 under Reception No. 02200074 according to the plat on file in the office of the Clerk and Recorder, said County; thence along the boundary of said plat the following 53 courses and distances; South 73°10'00" East 888.37 feet; thence South 16°50'00" West 153.46 feet; thence South 46°50'08" East 749.22 feet; thence North 55°46'07" East 97.84 feet thence South 46°5923" East 1326.17 feet; thence North 83°33'14" East 694.12 feet thence North 32°48'49" East 257.46 feet to a point on a curve concave to the Northeast having a central angle of 21°56'45" and a radius of 993.66 feet; a radial line passing through said point bears South 310073r West; thence Southeasterly along the arc of said curve 380.60 feet to the end of said curve; thence tangent front said curve South 80°49'12" East 169.63 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 26°11'26" and a radius of 1221.67 feet thence Southeasterly along the arc of said curve 558.44 feet to the end of said curve; thence tangent from said curve South 54°37'46" East 70.54 feet; thence North 35°22'14" East 150.48 feet; thence North 85°40'29" East 507.75 feet; thence South 87°32'47" East 399.71 feet; thence South 78°20'53" East 391.38 feet; thence North 13°54'57" West 1387.81 feet; thence South 8896'34" East 170.52 feet; thence South 37°13'43" East 1250.00 feet; thence South 62°09'58" East 450.00 feet; thence South 79°40'14" East 400.00 feet; thence South 75°25'39" East 450.00 feet; thence North 89°41'05" East 398.67 feet; thence North 00°22'03" East 470.01 feet thence South 89°41'05" West 50.00 feet thence North 00°22'04" East 495.00 feet thence North 89°37'55" West 91.83 feet; thence North 42°24"17" West 646.46 feet; thence North 12°26'31" West 54.60 feet; thence North 17°17'09" West 207.35 feet; thence North 00°16'43" East 348.60 feet; thence North 12°04'51" West 380.71 feet; thence North 06°35'57" West 425.17 feet thence North 41°32'24" West 327.37 feet; thence North 31°19'19" West 302.66 feet thence North 23°33'38" West 293.98 feet; thence North 20°5675" West 650.00 feet; thence North 34°55'56" West 423.91 feet; thence North 52°36'54" West 357.78 feet to a point on the South right-of- way line of Beebe Draw Farms Parkway; thence along said South right-of-way line the following three courses and distances; South 37°23'06" West 155.00 fret to the beginning of a tangent curve concave to the Northwest having a central angle of 28°09'58" end a radius of 1141.35 feet; thence Southwesterly along the aro of said curve 561.08 feet to the end of said curve; thence tangent from said curve South 65°33'04" West 266.94 feet; thence North 24°26'46" West 100.00 feet; thence North 46°08'35 West 1117.27 feet; thence South 74°02'57" West 850.00 feet to a point on a curve concave to the Southwest having a central angle of 21°01'08" and a radius of 986.23 feet; a radial line passing though said point Form No. 1830-I (C048)(Continued) bears North 62°51'38" East; thence Northwesterly along the arc of said curve 361.80 feet to the end of said curve; thence tangent from said curve North 48°09'30" West 225.00 feet; thence South 41°50'30" West 235.00 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 20°43'40" and a radius of 225.00 feet; thence Southwesterly along the arc of said curve 81.40 feet to the end of said curve; a radial line passing through said end of curve bears North 68°53'10" West; thence departing said curve North 68°53'10" West 450.00 feet; thence South 38°50'00" West 331.13 feet; thence North 72°28'11" West 508.22 feet; thence South 86°32'30" West 1532.88 feet; thence South 89°50'25" Wed 200.00 feat to a point on the West line of said Section 8; thence departing said corrected first filing plat of Beebe Draw Farms and Equestrian Center and along said West line of said Section 8 North 00°09'35" West 206.16 feet to the Northwest Corner of said Section 8; thence along the West line of the Southwest Quarter of said Section 5 North 00°2520" West 2654.03 feet to the West Quarter Corner of said Section 5; thence along the West line of the Northwest Quarter of said Section 5 North 00°24'27" West 132722 feet to the Southwest Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the North Half of the Northwest Quarter of said Section 5 North 89°44'2 1" East 2631.31 feet to the Southeast Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the Northwest Quarter of the Northeast Quarter from said Section 5 North 89°44'21" East 1331.58 feet to the Southeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the East line of the Northwest Quarter of the Northeast Quarter of said Section 5 North 00°38'58" West 1325.38 feet to the Northeast Comer of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the North line of the Northeast Quarter of said Section 5 North 89°39'41" East 1333.17 fret to the Northeast Corner of said Section 5; thence along the North line of the Northwest Quarter of said Section 4 North 89°45'43" East 2638.09 feet to the North Quarter Corner of said Section 4; thence along the North line of the Northeast Quarter of said Section 4 North 89°2430" East 805.01 feet; thence departing said North line South 40°03'54" East 9.61 feet; thence South 10°09'16" West 45.49 feet; thence South 27°01'56" West 281.98 feet; thence South 35°02'52" West 129.95 feet; thence South 46°24'35" West 113.95 feet; thence South 67°56'11" West 114.41 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 43°14'52" and a radius of 210.00 fbet thence Southwesterly along the arc of said curve 158.51 feet to the end of said curve; thence tangent from said curve South 24°41'19" West 39.72 fret to the beginning of a tangent curve concave to the Southeast having a central angle of 68°10'08" and a radius of 217.23 feet; thence Southeasterly along the arc of said curve 258.45 filet to the end of said curve; thence tangent from said curve South 43°26'49" East 159.97 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 48°38' 1 I" and a radius of 81.88 feet; thence Southwesterly along the arc of said curve 69.51 feet to the end of said curve; thence tangent from said curve South 0S°09'21" West 19.20 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 25°54'10" and a radius of 260.90 feet; thence Southwesterly along the aro of said curve 117.95 fbet to the end of said curve; thence tangent from said curve South 31°03'31" West 130.58 fret; thence South 09° 40'49" West 95.26 feet; thence South 03°11'34" East 116.07 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 36°30'36" East and a radius of 180.24 fret; thence Southeasterly along the arc of said curve 114.85 feet to the end of said curve; thence tangent from said curve South 39°42'10" East 116.57 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 45°22'31" East and a radius of 114.82 feet; thence Southeasterly along the arc of said curve 90.93 feet to the end of said curve; thence tangent from said curve South 85°04'41" East 170.71 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 68°29'30" and a radius of 126.33 feet; thence Southeasterly along the arc of said curve 151.02 feet to the end of said curve; thence tangent from said curve South 16°35'11" East 120.95 fret to the beginning of a tangent curve concave to the West having a central angle of 25°35'07" and a radius of 440.41 feet; thence Southwesterly along the arc of said Fonn No. 1640-I (Rev. 1192)(Continued) curve 196.66 feet to the end of said curve; thence tangent from said curve South 08°59'57" West 101.24 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 59°32'10" and a radius of 242.34 feet; thence Southeasterly along the arc of said curve 251.82 feet to the end of said curve; thence tangent from said curve South S0°32'I2" East 97.62 feet; thence North 89°31'48" East 283.17 feet thence South 31°1826" East 113.96 feet; thence South 58°32'01" West 57.39 filet; thence South 31°27'59" East 522.19 feet; thence South 10°25'00" East 99.33 feet; thence South 33°44'57" East 157.31 feet thence South 51°33'07" West 95.52 feet; thence South 00°23'23" East 177.92 felt; thence South 10°18'08" East 78.26 feet; thence South 30°46'04" East 152.46 filet thence South 47°55'59" East 265.05 feet thence South 37°5827" West 164.42 feet thence South 06 °08'57" West 239.20 feet thence South 33°32'01" East 129.62 feet; thence South 74°20'38" East 218.49 feet; thence South 21°05'43" East 136.12 feet; thence South 05°34'34" East 216.02 feet; thence South 40°38'47" East 130.48 feet thence South 06°37'24" West 112.76 feet thence South 13°34'05" East 59.67 feet; thence South 35°26'15" Bast 136.24 feet thence South 49°59'28" East 73.11 fed; thence South 72°02'53" East 149.26 feet; thence South 28°24'37" East 133.73 feet thence South 40°21'43" East 122.55 feet; thence South 31°08'l 1" East 168.24 feet; thence South 35°26'36" East 144.84 feet; thence South 52°48'46" East 145.60 feet; thence South 53 *35'11" East 274.60 feet; thence South 01°31'42" West 75.03 feet thence South 30°03'25" West 263.26 feet; thence South 06°03'06" East 282.44 feet; thence South 25°15'38" East 337.55 feet thence South 23°51'00" East 264.59 feet; thence South 29°30'32" East 17435 feet; thence South 37°11'17" East 96.99 feet; thence South 52°03'02" East 69.68 feet; thence South 55°31'03" East 148.65 feet thence South 16°1 I'28" East 138.93 feet thence South 42°52'22" East 177.69 feet thence South 25°09'33" East 155.19 feet; thence South 24°47'22" East 180.62 feet; thence South 36°43'50" East 146.03 feet thence South 25°08'32" West 111.15 feet; thence South 02°01'46" East 227.19 feet; thence South 20°03'30" East 193.90 feet; thence South 12°32'52" East 346.85 feet; thence South 10°22'25" West 264.13 feet; thence South 05°07'5I" West 157.19 feet; thence South 32°32'42" West 220.12 feet; thence South 19°19'50" West 268.66 feet; thence South 38°04'09" West 284.92 feet; thence South 79°43'19" West 714.61 feet; thence South 24°52'21" West 224.67 feet; thence South 07°13'48" East 37.52 feet to a point on the South line of said Section 10; thence along said South line South 89°28'30" West 283.01 feet to the Northeast Comer of said Section 9; thence along the South line of said Section 9 South 89°41'18" West 5121.15 feet to the Southeast Comer of said Section 17; thence along the East line of said Section 17 South 00°30'21" East 5282.59 feet to the Southeast Corner of said Section 17; thence along the South line of said Section 17 South 89°33'05" West 5327.95 feet to the Southwest Corner of said Section 17; thence along the West line of said Section 17 North 00°29'44" West 5259.39 feet to the POINT OF BEGINNING. Containing 2,266.118 acres, more or less, and is subject to all easements, agreements and rights -of -way of record.(Acreage provided for Parcel Identification purposes only) EXCEPTING THEREFROM, to the extent included within the foregoing Filing 2 Legal Description, all of the property described in that certain Warranty Deed to Beebe Draw Farms Metropolitan District Form No. 1640-1 (Rev. 1/92) (Continued) recorded December I, 1997 in Book 1636 at Page 673 at Reception No. 2581769, Weld County Clerk and Recorder, Colorado. FURTHER EXCEPTING THEREFROM the following three (3) parcels: Parcel 1- School Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4 and the Northeast Quarter of Section 5, Township 3 North, Range 65 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89"45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 844.05 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence South 00°19'37" West 674.51 feet to the beginning of a tangent curve concave to the Northwest having a central angle of I0°04'02" and a radius of 435.00 fret; thence Southwesterly along the aro of said curve 76.43 feet to the end of said curve, a radial line passing through said end of curve bears South 79°36'20" East; thence departing said curve South 89°45'34" West 2157.24 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along said East lino North 00°38'58" West 748.22 feet; thence departing said East lino North 89°39'41" East 1332.98 fret; thence North 89°45'43" East 843.75 feet to the TRUE POINT OF BEGINNING. Parcel 2 - Fire Station Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4, Township 3 North, Range 65 West of the 6th P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative' thereto; thence along said North line North 89°45'43" East 924.06 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence North 89°45'43" East 400.02 feet thence South 00°19'37" West 404.39 feet; thence North 89°40'23" West 400.00 feet; thence North 00°19'37" East 400.44 fat to the TRUE POINT OF BEGINNING. Parcel 3— Directors Parcel The following described real property located in the County of Weld, State of Colorado: Township 3 North, Range 65 West of the 6th P.M.: Section 4: The NB'A of the NW% % except for the following described parcel: Commencing at the Northeast corner of the N W% of Section 4, thence along the North line of the said N W % , South 89°35'05" West, 30.00 feet; NMI No. 1640-1(Rev. 1/92) (C°nanusd) thence South 00°35'25" East, 30.00 feet parallel with the East Beginning; thence continuing South 00°35'25" East, 208.71 feet; thence South 89°35'05" West, 208.71 feet; thence North 00°35'25" West 208.71 feet; thence parallel with the North line of said N W'% North 89°35 Beginning, Said parcel contains 39 acres, more or less. (Acreage provided (Legal provided by client) Form No. 1640-1 (Rot 1192) (Continued) line of said NW % to the true Point of '05" East, 208.71 feet to the true Point of for Parcelldentification purposes only) EXHIBIT E Consent of District No. 2 to Exclusion of Final Exclusion Property (00140302.DOC/ 3) RESOLUTION OF BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 APPROVING EXCLUSION OF REAL PROPERTY FROM BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 AND APPROVING AND AUTHORIZING EXECUTION OF AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT AND RELATED DOCUMENTS WHEREAS, on or about October 7, 2008, REI, LIMITED LIABILITY COMPANY, a Wyoming Limited Liability Company, filed a Petition (the "Petition") with the Beebe Draw Farms Metropolitan District No. 1 ("District No. 1") requesting that District No. l exclude the real property described in the Petition as amended (the "Property") from District No. 1, a copy of which Petition as amended is attached hereto as Exhibit A and incorporated herein by this reference; and WHEREAS, the Property is also located within the boundaries of the Beebe Draw Farms Metropolitan District No. 2 ("District No. 2"); and WHEREAS, District No. 1 and District No. 2 (together, the "Districts") were organized pursuant to a Consolidated Service Plan dated May 1999 and approved by the Board of County Commissioners of Weld County on July 21, 1999 (the "Service Plan"); and WHEREAS, the Districts are parties to an Intergovernmental Agreement dated August 8, 2001, as amended March 4, 2004 (the "IGA"), which will be further amended, restated and superseded by the Amended and Restated IGA (as defined herein); and WHEREAS, under the Service Plan, the Districts have complete discretion to approve the inclusion and exclusion of property into and out of the boundaries of their respective District; and WHEREAS, the IGA requires the prior written approval of District No. 2 prior to District No. 1's granting of any exclusion of property from its boundaries. NOW, THEREFORE, be it resolved by the Board of Directors of District No. 2 that: 1. The Property is currently within the boundaries of District No. 2, and District No. 2 will provide services to the Property more efficiently and therefore for less cost. 2. Exclusion of the Property is in the best interests of the Property and the Districts as it facilitates the financing, construction, operation and maintenance of the Public Improvements in accordance with the provisions of the Service Plan and the Amended and Restated IGA. )00140119.DOC/) • • 3. The Board of Directors hereby approves the exclusion of the Property from the boundaries of District No. 1, subject to the execution of an Amended and Restated Intergovernmental Agreement between the Districts, the near final form of which is attached hereto as Exhibit B (the "Amended and Restated ION') and is incorporated herein by this reference, and which sets forth those amendments necessitated by the exclusion of the Property to assure the implementation of the Service Plan and the financing, construction, operation and maintenanceof the Public Facilities, and subject to any other conditions to exclusion that may be imposed by District No. 1 necessary to effectuate the implementation of the Service Plan and the financing, construction, operation and maintenance of the Public Improvements. 4. The Amended and Restated IGA is hereby approved, and the President and Secretary of the District are hereby authorized to execute (i) the Amended and Restated IGA, including any revisions thereto which do not materially change the terms or understandings set forth therein, and (ii) any deeds or conveyance documents necessary to effectuate the terms thereof. APPROVED AND ADOPTED by the Board of Directors of Beebe Draw Farms Metropolitan District No. 2 on this 3r° day of November, 2008. BOARD OF DIRECTORS OF BEEBE DRAW FARMS METROPOLITAN DISTRICT N )00140119.DOC /) By 2 Secretary EXHIBIT A REI, Limited Liability Company Petition for Exclusion (00140119.DOC /) PETITION FOR EXCLUSION In accordance with Section 32-1-501(1), C.R.S., the undersigned, REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company (the "Petitioner"), does hereby respectfully petition the Beebe Draw Farms-Metropolitan.District No. 1 (".District"), acting. by and through its Board of Directors ("Board"), for the exclusion oo certain real properiffrom the _.boundaries.ofthe,District,_subjest_to_tltanonditionsldesaribbesihemin_ffbe "Exclusion") _ The Petitioner represents to the District as follows: 1. The land to be excluded consists of approximately 2,266.118 acres situate in the County of Weld, State of Colorado and is legally described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"), and, at present, constitutes a portion of the District. 2. The Petitioner is the fee owner of one hundred percent (100%) of the Property and no other person(s), entity or entities own(s) an interest in the Property except as beneficial holder(s) of encumbrances. 3. The Petitioner hereby assents to the exclusion of the Property from the boundaries of the District and to the entry of an Order in the District Court, County of Weld, State of Colorado (the "Court"), excluding the Property from the boundaries of the District. The Petitioner acknowledges that there shall be no withdrawal of the Petition from consideration by the Board after publication of notice of the hearing therefore, without the Board's consent. 4. If requested by the Petitioner, the District and the Petitioner shall enter into an Exclusion Agreement which addresses the conditions of the exclusion and the conditions upon which the order of exclusion will be recorded with the Weld County Clerk and Recorder. 5. The Petitioner agrees that it will pay, or cause to be paid, the fees incurred by the District, if any, for the Exclusion if this Petition is accepted, including the costs of publication of appropriate legal notices and legal fees and costs incurred by the District in connection with the Exclusion of the Property. The Petitioner hereby requests that the Board approve the Exclusion of the Property from the boundaries of the District and that the District file a motion with the Court requesting that an Exclusion Order be entered, stating that from and after the effective date of the Exclusion Order, the Property shall not be liable for bonded indebtedness, assessments or other obligations of the District which may be incurred after the effective date of the Order. (00132502.OOC v:1) • Signed this 17 tnday of September, 2008. REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company Name: - Christine Hetheock - ,Its: —Manager, Address of Petitioner: 300OO 5, Lean Sui ZCO En.IeLocad `. CO gel It; STATF,OF COLORADO COUNT OF &own ss. The foregoing instrument was acknowledged before me this /76 day of September, 2008, by Christine Hethcock, as Manager of REI LIMITED LIABILITY COMPANY, a Wyoming limited liability company. Witness my hand and official seal. My commission expires: 6.- 42-07 (00132502,OOO v:1) 2 EXHIBIT A. Legal Description of Property (00132502.DOC v: Beebe Draw Filing 2 Legal Description: Legal Description of a parcel of land being a portion of that certain parcel of land described on the boundary survey recorded April 12, 1995 in Book 1487, Page 123 under Reception No. 2433894 on file in _the-office-of-the-clerk-and-Reconler, Weld-County,--Colorado-situate-in Sections 4,-5,-8, 9, 10.and -17, Township 3 North, Range -65..West -of .the .-6--Principal.Meridian-being-more-paalcularl3 deacdbed_as--- follows: Beginning at the Southwest Corner of said Section 8 and considering the West line of said Section 8 as bearing North 00°09'35" West and with all bearings contained herein relative thereto; thence along said West line North 00°09'35" West 1994.84 feet to a point on the Southerly line of the corrected first filing plat of Beebe Draw Farms and Equestrian Center recorded December 13, 1989 in Book 1251 under Reception No. 02200074 according to the plat on file in the office of the Clerk and Recorder, said County; thence along the boundary of said plat the following 53 courses and distances; South 73°10'00" East 888.37 feet; thence South 16°50'00" West 153.46 feet; thence South 46°50'08" East 749.22 feet; thence North 55°46'07" East 97.84 feet; thence South 46°59'23" East 1326.17 feet thence North 83°33'14" East 694.12 feet; thence North 32°48'49" East 257.46 feet to a point on a curve concave to the Northeast having a central angle of 21°56'45" and a radius of 993.66 feet; a radial line passing through said point bears South 31°07'32" West; thence Southeasterly along the arc of said curve 380.60 feet to the end of said curve; thence tangent from said curve South 80°49'12" East 169.63 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 26°1176" and a radius of 1221.67 feet; thence Southeasterly along the arc of said curve 558.44 feet to the end of said curve; thence tangent from said curve South 54°37'46" East 70.54 feet; thence North 35°22'14" East 150.48 feet; thence North 85°40'29" East 507.75 feet; thence South 87°32'47" East 399.71 feet; thence South 78°20'53" East 391.38 feet; thence North 13°54'57" West 1387.81 feet; thence South 88°16'34" East 170.52 feet; thence South 37°13'43" East 1250.00 feet; thence South 62°09'58" East 450.00 feet; thence South 79°40'14" East 400.00 feet; thence South 75°25'39" East 450.00 feet; thence North 89°41'05" East 398.67 feet; thence North 00°22'03" East 470.01 feet; thence South 89°41'05" West 50.00 feet; thence North 00°22'04" East 495.00 feet; thence North 89°37'55" West 91.83 feet; thence North 42°24'27" West 646.46 feet; thence North 72°26'31" West 54.60 feet; thence North 17°17'09" West 207.35 feet; thence North 00°16'43" East 348.60 feet; thence North 12°04'51" West 380.71 feet; thence North 06°35'57" West 425.17 feet; thence North 41°32'24" West 327.37 feet; thence North 31°19'19" West 302.66 feet; thence North 23°33'38" West 293.98 feet; thence North 20°56'25" West 650.00 feet; thence North 34°55'56" West 423.91 feet; thence North 52°36'54" West 357.78 feet to a point on the South right-of-way line of Beebe Draw Farms Parkway; thence along said South right-of-way line the following three courses and distances; South 37°23'06" West 155.00 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 28°09'58" and a radius of 1141.35 feet; thence Southwesterly along the arc of said curve 561.08 feet to the end of said curve; thence tangent from said curve South 65°33'04" West 266.94 feet; thence North 24°26'46" West 100.00 feet; thence North 46°08'35 West 1117.27 feet; thence South 74°02'57" West 850.00 feet to a point on a curve concave to the Southwest having a central angle of 21°01'08" and a radius of 986.23 feet; a radial line passing though said point bears North 62°51'38" East; thence Northwesterly along the arc of said curve 361.80 feet to the end of said curve; thence tangent from said curve North 48°09'30" West 225.00 feet thence South 41°50'30" West 235.00 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 20°43'40" and a radius of 225.00 feet; thence Southwesterly along the arc of said curve 81.40 feet to the end of said curve; a radial line passing through said end of curve bears North 68°53'10" West; thence departing said curve North 68°53'10" West 1 450.00 feet; thence South 38°50'00" West 331.13 feet; thence North 72°28'11" West 508.22 feet; thence South 86°32'30" West 1532.88 feet; thence South 89°50'25" West 200.00 feet to a point on the West line of said Section 8; thence departing said corrected first filing plat of Beebe Draw Frames and Equestrian Center and along said West line of said Section 8 North 00°09'35" West 206.16 feet to the Northwest Corner of said Section 8; thence along the West line of the Southwest Quarter of said Section 5 North 00°2520" West 2654.03 feet to the West Quarter Corner or -said Section 5; thence along the Wes[ Gno -------theNorthwest-Quartesof-said-Section-5-Nordi-0=4;271-West-1-327 22-feet-to-theSouthwest.Corner-0f.the - •North-Half-of-the-Northwest-Quarter-of-said-Seetion Stihenee•alonwthe-Southdine-ofthe•Narthaalf-of-the Northwest Quarter of said Section 5 North 89°4421" East 2631.31 feet to the Southeast Corner of the North Half of the Northwest Quarter of said Section 5; thence along the South line of the Northwest Quarter of the Northeast Quarter from said Section 5 North 89°44'21" East 1331.58 feet to the Southeast Quarter of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the East line of the Northwest Quarter of the Northeast Quarter of said Section 5 North 00°38'58" West 1325.38 feet to the Northeast Corner of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along the North line of the Northeast Quarter of said Section 5 North 89°39'41" East 1333.17 feat to the Northeast Corner of said Section 5; thence along the North line of the Northwest. Quarter of said Section 4 North 89°45'43" East 2638.09 feet to the North Quarter Corner of said Section 4; thence along the North line of the Northeast Quarter of said Section 4 North 89°24'30" East 805.01 feet; thence departing said North line South 40°03'54" East 9.61 feet; thence South 10°09'16" West 45.49 feet; thence South 27°01'56" West 281.98 feet; thence South 35°02'52" West 129.95 feet; thence South 46°24'35" West 113.95 feet; thence South 67°56'11" West 114.41 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 43°14'52" and a radius of 210.00 feet; thence Southwesterly along the arc of said curve 158.51 feet to the end of said curve; thence tangent from said curve South 24°41'19" West 39.72 feet to the beginning of a tangent curve concave to the Southeast having a central angle of 68° 10'08" and a radius of 217.23 feet; thence Southeasterly along the arc of said curve 258.45 feet to the end of said curve; thence tangent from said curve South 43°28'49" East 159.97 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 48°38'11" and a radius of 81.88 feet; thence Southwesterly along the arc of said curve 69.51 feet to the end of said curve; thence tangent from said curve South 05°09'21" West 19.20 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 25°54'10" and a radius of 260.90 feat; thence Southwesterly along the arc of said curve 117.95 feet to the end of said curve; thence tangent from said curve South 31°03'31" West 130.58 feet; thence South 09°40'49" West 95.26 feet; thence South 03°11'34" East 116.07 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 36°30'36" East and a radius of 180.24 feet; thence Southeasterly along the arc of said curve 114.85 feet to the end of said curve; thence tangent from said curve South 39°42'10" East 116.57 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 45°22'31" East and a radius of 114.82 feet; thence Southeasterly along the arc of said curve 90.93 feet to the end of said curve; thence tangent from said curve South 85°04'41" East 170.71 feet to the beginning of a tangent curve concave to the Southwest having a central angle of 68°29'30" and a radius of 126.33 feet; thence Southeasterly along the arc of said curve 151.02 feet to the end of said curve; thence tangent from said curve South 16°35'11" East 120.95 feet to the beginning of a tangent curve concave to the West having a central angle of 25°35'07" and a radius of 440.41 feet; thence Southwesterly along the arc of said curve 196.66 feet to the end of said curve; thence tangent from said curve South 08°59'57" West 101.24 feet to the beginning of a tangent curve concave to the Northeast having a central angle of 59°32'10" and a radius of 242.34 feet; thence Southeasterly along the arc of said curve 251.82 feet to the end of said curve; thence tangent from said curve South 50°32'12" Bast 97.62 feet; thence North 89°31'48" East 283.17 feet; thence South 31°18'26" East 113.96 feet; thence South 58°32'01" West 57.39 feet; thence South 31°27'59" East 522.19 feet; thence South 10°25'00" East 99.33 feet; thence South 33°44'57" East 157.31 feet; thence South 51°33'07" West 95.52 feet; thence South 2 00 23'23 East 177.92 feet; thence South 10°18'08" East 78.26 feet; thence South 30°46'04" East 152.46 feet; thence South 47°55'59" East 265.05 feet; thence South 37°58'27" West 164.42 feet; thence South 06°08'57" West 239.20 feet; thence South 33°32'01" East 129.62 feet; thence South 74°20'38" East 218.49 feet; thence South 21°05'43" East 136.12 feet; thence South 05°34'34" East 216.02 feet; thence South 40°3847" East 130.48 feet; thence South 06°3774" West 112.76 feet; thence South 13°34'05" East 59.67 feet; thence South 35°26'15" East 1�3 .₹Meet; Eros South 49°59'28" Bast 73.11 feet; thence Southa3°02'83" t-149.26-feetrthence-South-28°2437-'-Sass-133,13-feet;-thence-Soutt-40°21A3'! Bast 12233 --fat; thane,South-3•Igo8A14a-Bast 46844•feetp=thenee•South 33°2636.1-East-144,84-testi-thence South 52°48'46" Bast 145.60 feet; thence South 53°35'11" East 274.60 fat; thence South 01°31'42" West 75.03 feet; thence South 30°03'25" West 263.26 feet; thence South 06°03'06" East 282.44 feet; thence South 25°15'38" East 337.55 feet; thence South 23°51'00" East 264.59 feet; thence South 29°30'32" East 174.35 feet; thence South 37°11'17" East 96.99 fat; thence South 52°03'02" Bast 69.68 feet; thence South 55°31'03" East 148.65 feet; thence South 16°11'28" East 138.93 feet; thence South 42°52'22" East 177.69 fat; thence South 25°09'33" Bast 155.19 feet; thence South 24°47'22" East 180.62 feet; thence South 36°43'50" Bast 146.03 feet; thence South 25°08'32" West 111.15 feet; thence South 02°01'46" East 227.19 feet; thence South 20°03'30" East 193.90 feet; thence South 12°32'52" Bast 346.85 feet; thence South 10°22'25" West 264.13 feet; thence South 05°07'51" West 157.19 feet; thence South 32°32'42" West 220.12 feet; thence South 19°19'50" West 268.66 feet; thence South 38°04'09" West 284.92 feet; thence South 79°43'19" West 714.61 feet; thence South 24°52'21" West 224.67 feet; thence South 07°1348" Bast 37.52 feet to a point on the South line of said Section 10; thence along said South line South 89°28'30" West 283.01 feet to the Northeast Corner of said Section 9; thence along the South line of said Section 9 South 89°41'18" West 5121.15 feet to the Northeast Corner of said Section 17; thence along the East line of said Section 17 South 00°30'21" East 5282.59 feet to the Southeast Corner of said Section 17; thence along the South line of said Section 17 South 89°33'05" West 5327.95 feet to the Southwest Comer of said Section 17; thence along the West line of said Section 17 North 00°29'44" West 5259.39 feet to the POINT OF BEGINNING. EXCEPTING THEREFROM the following two (2) parcels: Parcel 1- School Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4 and the Northeast Quarter of Section 5, Township 3 North, Range 65 West of the 6a P.M., Weld County, Colorado, being more particularly described as follows: Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 844.05 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence South 00°19'37" West 674.51 feet to the beginning of a tangent curve concave to the Northwest having a central angle of 10°04'02" and a radius of 435.00 feet; thence Southwesterly along the arc of said curve 76.43 feet to the end of said curve, a radial line passing through said end of curve bears South 79°36'20" Bast; thence departing said curve South 89°45'34" West 2157.24 feet to a point on the East line of the Northwest Quarter of the Northeast Quarter of said Section 5; thence along said East line North 00°38'58" West 748.22 feet; thence departing said East line North 89°39'41" East 1332.98 feet; thence North 89°45'43" East 843.75 feet to the TRUE POINT OF BEGINNING. 3 • I Parcel 2 - Fire Station Site Legal Description of a parcel of land being a portion of the Northwest Quarter of Section 4, Township 3 North, Range 65 -West of the 6th -RIVE., Weld -County, Coloradole'mg more par(cularly described as __-follows• Beginning at the Northwest corner of said Section 4 and considering the North line of the Northwest Quarter of said Section 4 as bearing North 89°45'43" East and with all bearings contained herein relative thereto; thence along said North line North 89°45'43" East 924.06 feet; thence departing said North line South 00°19'37" West 30.00 feet to the TRUE POINT OF BEGINNING; thence North 89°45'43" East 400.02 feet; thence South 00°19'37" West 404.39 feet; thence North 89°4023" West 400.00 feet; thence North 00°19'37" East 400.44 feet to the TRUE POINT OF BEGINNING. Containing 2,266.118 acres, more or less, and is subject to all easements, agreements and rights -of -way of record. 4 EXHIBIT B [attach Amended and Restated Intergovernmental Agreement] (00140119.DOC /) AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT THIS AMENDED AND RESTATED INTERGOVERNMENTAL AGREEMENT ("Agreement") is made and entered into as of this 3rd day of November, 2008, by and between the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 ("District No. 1") and the BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 ("District No. 2"; collectively, "Districts" or either of the Districts, a "District"), both quasi -municipal corporations and political subdivisions of the State of Colorado operating within the County of Weld ("County"), Colorado, organized under the provisions of Article 1 of Title 32, C.R.S. RECITALS A. The Districts were organized to facilitate the development of the Beebe Draw Farms and Equestrian Center, also known as Pelican Lake Ranch (the "Development"), by cooperatively providing for the financing, acquisition, construction, installation, completion, operation, maintenance and replacement of public infrastruction improvements and the furnishing of services for the use and benefit of the property owners, residents and users of the public improvements within the Development. B. The Consolidated Service Plan of the Districts dated May 1999 ("Service Plan") and previously approved by the County, requires that the Districts enter into an intergovernmental agreement to, among other matters, coordinate the financing, construction, completion, operation and maintenance of the public improvements and the provision of services needed within the Development. C. The Financial Plan in the Service Plan recognizes that District No. 2 will provide for the financing, construction, completion, operation and maintenance of the public improvements needed within the Development, and District No. 1 will impose a property tax levy on all taxable property within its boundaries and, after payment of debt service on its outstanding bonds, will remit the remainder of all taxes and other revenue collected by it to District No. 2. D. In furtherance of such requirements, the Districts previously entered into that certain Intergovernmental Agreement dated August 8, 2001 ("Original Agreement") and now desire to amend }- —hgrea EenL in iLo entirety -4n 100141345.DOCO to better describe and confirm the cooperative relationship and current understandings between the Districts. E. Section 18(2)(a), Article XIV of the Colorado Constitution, Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., empower the Districts to enter into contracts and agreements with one another to provide intergovernmental services and facilities, including the sharing of costs, the imposition of taxes, and the incurring of debt, when so authorized by their respective Boards of Directors. F. At the public election held on November 2, 1999, the electors of the Districts authorized the Districts to incur indebtedness and other multi -fiscal year obligations and to enter into agreements relating thereto, including this Agreement, and at prior public elections, District No. l's electors authorized District No. 1 to levy property taxes, incur general obligations, and enter into agreements relating thereto, including this Agreement, in order to provide for the financing, construction and completion of the public improvements and to furnish the services needed within the Development. G. The Boards of Directors of the Districts hereby determine that the terms, conditions and provisions of this Agreement are in the best interests of the Districts and are necessary to implement the provisions of the Service Plan with respect to the intergovernmental cooperation between the Districts and to establish the respective duties and responsibilities of the Districts concerning the economic and efficient development of the public improvements and the provision of services within the Development. AGREEMENT In consideration of the agreements, terms, conditions and authorizations set forth in the Recitals (which are incorporated herein by this reference) and in this Agreement, the adequacy and sufficiency of which are mutually acknowledged, the Districts agree as follows: SECTION 1. DEFINITIONS AND CONSTRUCTION OF AGREEMENT Section 1.1 Definitions. For all purposes of this Agreement, unless the context expressly indicates differently, the terms defined in this Section shall have the following incorporated herein by this reference. If any term is (00141345.DOC /) capitalized in this Agreement but not defined herein, it shall have the meaning set forth in the Service Plan. a. "Administrative Expenses" means those costs incurred by District No. 2 for the purpose of administering the Districts as governments and operating and maintaining the Public Improvements as further provided in Section 5.6. b. "Agreement" means this Amended and Restated Intergovernmental Agreement between the Districts, as may be amended or supplemented in writing from time to time. c. "Board" or "Boards" means the Board of Directors of District No. 1 or District No. 2, as applicable, or the Boards of both Districts. d. "County" means the County of Weld, Colorado. e. "Default" or "Event of Default" means one or more of the events described in Section 6.1. f. "Developer Advances" means all funds advanced to District No. 2 by developers or other persons pursuant to any funding, reimbursement, acquisition or redevelopment agreement, and any bond, note or other obligation evidencing or securing such borrowing, that are applied for payment of costs incurred for Administrative Expenses of the Districts, for the Process of Construction, or for other public purposes, and are repayable from Project Revenues or from other legally available revenues of the Districts. g. "District" or "Districts" means either District No. 1 or District No. 2, as applicable, or both District No. 1 and District No. 2. h. "District No. 1" Metropolitan District 20, 1986 as Beebe District, a Colorado successor or assign. means the Beebe Draw Farms No. 1, organized on August Draw Farms Metropolitan special district, and any i. "District No. 1 Pledged Revenues" means all revenues received from (i) the District No. 1 (00141345.DOC /) and interest on the 1998 Bonds, (ii) specific ownership taxes, and (iii) all rates, fees, tolls 3 and charges imposed or collected within the Districts pursuant to Section 4.2, including without limitation facility fees and water tap fees, unless otherwise pledged for the repayment of Obligations, and remitted to District No. 2 pursuant to Section 4 for payment of (i) any Obligations other than the 1998 Bonds, (ii) the costs of the Process of Construction, and (iii) the payment of Administrative Expenses, all in conformance with the Funding Priorities. j. "District No. 1 Required Mill Levy" means the property tax levy required to be imposed by District No. 1 in accordance with Section 4.1 upon all real and personal property in District No. 1 and such other property that may be obligated by virtue of law for payment on the 1998 Bonds, at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 1 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 1 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) the principal of and interest on the 1998 Bonds, and (B) all other Obligations until all Obligations have been fully repaid and discharged, and (C) all Administrative Expenses. k. "District No. 2" means the Beebe Draw Farms Metropolitan District No. 2, organized on November 24 999, lorada—speciatd₹stri-ct attp successor or assign. (00141345.DOC /) 4 1. "District No. 2 Required Mill Levy" means the property tax levy required to be imposed by District No. 2 upon all real and personal property in District No. 2 at a rate determined annually by the Board of District No. 2, and all property tax revenue generated therefrom, subject to the following limitations: (i) The District No. 2 Required Mill Levy shall be the same as the District No. 1 Required Mill Levy minus the amount of the District No. 1 Required Mill Levy levied against taxable property within District No. 2 pursuant to Section 32-1-503(1), C.R.S., which is necessary for District No. 1 to make payment on the 1998 Bonds, so that the total mill levy on all property within the Districts is uniform (by way of example, if the District No. 1 Required Mill Levy is 40 mills and the portion required for payment on the 1998 Bonds is 10 mills, the District No. 2 Required Mill Levy shall be 30 mills); (ii) the District No. 2 Required Mill Levy shall not exceed the Mill Limitation; and (iii) the District No. 2 Required Mill Levy shall not be less than a rate sufficient to pay, when due, (A) all Obligations (other than the 1998 Bonds) until all Obligations have been fully repaid and discharged, and (B) all Administrative Expenses. m. "Election" means the special election conducted by each District on November 2, 1999, at which the electors of each District authorized the District to incur Obligations and enter into agreements related thereto, including without limitation this Agreement. n. "Financial Plan" means the financial plan of the Districts as set forth in the Service Plan, including any amendment or modification thereof. o. "Fiscal Year Budget" means the annual District budget and appropriation resolution duly adopted or amended by the Board in accordance with State law. p. "Funding Priorities" has the meaning set forth in Section 3.1(d). (00141345.D0C /) 5 q. "Mill Limitation" means (i) any limitation on the District No. 1 or District No. 2 Required Mill Levy as set forth in the Service Plan or in any ballot issue approved at the Election and (ii) a limitation on the rate of the property tax levy which shall not exceed 40 mills for all purposes. r. "Obligations" means all limited rate general obligation bonds, revenue bonds, notes, contracts, or funding, reimbursement, acquisition or redevelopment agreements of the Districts, including without limitation the 1998 Bonds, Developer Advances and refunding Obligations, that are secured by the District No. 1 Required Mill Levy, the District No. 1 Pledged Revenues or the Project Revenues as provided in any resolution, indenture or agreement authorizing the issuance of such Obligations. s. "Process of Construction" or "Processing of Construction" means the activities, in part or all together, of District No. 2 with respect to providing, completing and/or acquiring the Public Improvements needed for the Development, including without limitation the planning, design, engineering, testing, permitting, inspecting, construction, construction management, installation, completion and replacement of the Public Improvements. t. "Project Revenues" means all amounts received by District No. 2 from (i) the imposition of the District No. 2 Required Mill Levy, (ii) the District No. 1 Pledged Revenues, (iii) specific ownership taxes, and (iv) all rates, fees, tolls and charges imposed or collected within the Districts for the (A) repayment of any Obligations (other than the 199B Bonds), (B) payment of the costs of the Process of Construction, and (C) payment of Administrative Expenses, all in conformance with the Funding Priorities. u. "Public Improvements" means the streets, drainage, traffic and safety controls, water, parks and recreation, mosquito control, facilities, (00141345.DOC /1 equipment, land and related 6 • appurtenances described or authorized in the Service Plan. v. "Service Area" means the entire area of the Development, including all property within the boundaries of the Districts. w. "Service Plan" means the Consolidated Service Plan of the Districts dated May 1999, as may be amended or modified in writing from time to time with the approval of the County. x. "Term" means the period of time commencing on the date when this Agreement has been executed by each District and ending when District No. 2 has completed all Public Improvements, all Obligations have been repaid, and District No. 2 has been dissolved or consolidated with District No. 1 in accordance with provisions of the Article 1 of Title 32, C.R.S. y. "1998 Bonds" means the General Obligation Bonds, Series 1998 of District No. 1 in the original principal amount of $2,000,000 and the principal of and interest due per the 1998 Bond repayment schedule in accordance with the terms of the 1998 Bond Resolution, and any refunding or refinancing bonds issued in accordance with the 1998 Bond Resolution. The principal amount outstanding on the 1998 Bonds as of the date of execution of this Agreement is approximately $1,475,000. z. "1998 Bond Resolution" means the Resolution authorizing the issuance of the 1998 Bonds adopted by the Board of District No. 1 on October 21, 1998. Section 1.2 Construction of Agreement. For all purposes hereunder, unless the context expressly indicates differently, all definitions, terms, and words shall include both the singular and plural. Whenever "shall" or "will" is used herein, it shall be mandatory; "may" denotes that it is preferable or permissible, but not mandatory. Whenever "Party" or "Parties" is used herein, it shall refer to either District or both Districts. A reference herein to an act of "approval" may, if applicable, include a Rofint .im o ..0 _ Sections herein are to sections of this Agreement, unless otherwise specified. (00141345.DOC /1 7 SECTION 2. PURPOSE The purpose of this Agreement is to establish the intergovernmental relationship between the Districts in compliance with the Service Plan and to implement the terms of the Service Plan with respect to the cooperation between the Districts relating to the financing, Processing of Construction, operation and maintenance of the Public Improvements, and the provision of services within the Service Area. While each District is an independent special district, the Districts will cooperate with each other in accordance with the terms of this Agreement, unless the Districts subsequently agree to perform any administrative or management function independently by execution of an amendment of this Agreement. This Agreement shall, in all circumstances, be interpreted consistently with the Service Plan and the intended responsibilities of each District in implementing the Service Plan. SECTION 3. REPRESENTATIONS AND WARRANTIES Section 3.1 Representations and Warranties. The Board of each District represents, acknowledges, warrants and agrees for the benefit of the other District that to the best of its actual knowledge: a. The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (i) conflict with or contravene any law, order, rule or regulation.. applicable to the District or to the District's governing documents, including the Service Plan; (ii) result in the breach of any of the terms or provisions or constitute a default under any obligation, agreement or other instrument to which the District is a party or by which it may be bound or affected; or (iii) permit another party to terminate any such agreement or instrument or to accelerate the maturity of any indebtedness or other obligation of the District; b. The Board has duly approved this Agreement; c. This Agreement is a valid and binding obligation of the District enforceable according to its terms, except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by subject to all limitations set forth herein; i00141345.DOC /1 S d. All revenues received by District No. 1 from the District No. 1 Required Mill Levy and all Project Revenues received by District No. 2 shall be expended in accordance with the priorities set forth in Sections 4.1.(b) and 5.1.(c) (the "Funding Priorities"); e. Each District may rely upon and enforce all representations, warranties and agreements set forth in this Agreement; and f. The Districts, and not the County, shall be responsible for paying all debts and liabilities of the Districts. Section 3.2 Performance of Agreement. Each District acknowledges and agrees that the performance of this Agreement over the full Term is essential to the implementation of and compliance with the Service Plan and that any material departure from the terms of this Agreement by either District, or any unilateral attempt by either District to materially alter the terms of or to terminate this Agreement, except as authorized hereunder, is and shall constitute an Event of Default and a material departure from the Service Plan which, in addition to any other remedy set forth herein, the non -defaulting District shall be entitled to enjoin in accordance with Section 32-1-207, C.R.S. SECTION 4. DISTRICT NO. 1 RESPONSIBILITIES Section 4.1 Imposition of the District No. 1 Required Mill Levy. Until such time as (i) the 1998 Bonds and all other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 1 shall: a. Certify the District No. 1 Required Mill Levy no later than December 1 of each year in accordance with statutory requirements and provide prompt written notice of such certification to District No. 2, pursuant to the following process: (i) For the 2009 fiscal and property tax collection year, the District No. 1 Required Mill Levy shall be —emu mills, wnicn snail •y •p=r•t •n aw - _• •e mpose—a upon all taxable property in District No. 2. On or before December 1, 2008, District No. 1 shall adopt a resolution establishing and (00141345.DOC /) 9 certifying the District No. 1 Required Mill Levy at a rate of 40 mills. District No. 1 shall provide prompt written notice to District No. 2 of such certification. Upon receipt from the County of the revenues from the District No. 1 Required Mill Levy, District No. 1 shall identify and segregate that portion of the revenues received from the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (ii) Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, District No. 2 shall determine and, on or before November 1, advise District No. 1 of the District No. 1 Required Mill Levy to be included in the Fiscal Year Budget for the next fiscal year. On or before November 15 of each year, District No. 1 shall provide written notice to District No. 2 of any reasonable objections it may have to the District No. 1 Required Mill Levy, which objections shall be limited to non-compliance with the Service Plan or non-compliance with the terms of this Agreement. If no written objections are received by District No. 2 by November 15, District No. 1 shall be deemed to have consented to the District No. 1 Required Mill Levy, and District No. 1 shall, no later than December 1 of each year, adopt a resolution establishing and certifying the District No. 1 Required Mill Levy and shall provide prompt written notice to District No. 2 of such certification. Upon receipt of the revenues from the District No. 1 Required Mill Levy from the County, District No. 1 shall identify and segregate that portion of the revenues received form the District No. 1 Required Mill Levy necessary for payment of principal of and interest on the 1998 Bonds per the 1998 Bond repayment schedule. District No. 1 shall make payment on the 1998 Bonds when due. District No. 1 shall remit the District No. 1 Pledged Revenues to District No. 2 within 15 business days of receipt of such revenues from the County. (iii) It shall District No. 1 fails to certify the Levy by December 1 of any year or Pledged Revenues to District No. 2. 2 shall have the rights and remedies be an Event of Default if District No. 1 Required Mill to remit the District No. 1 In such event, District No. set forth in Section 6.3. b. All property tax revenue received by District No. 1 from the District No. 1 Required Mill Levy shall Bond repayment schedule, and then the District No. 1 Pledged (00141345.DOC It 10 • • Revenues shall be remitted to District No. 2 pursuant to the provisions hereof. c. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 1 to the County authorizing the District No. 1 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. d. It shall be the duty of the Board of District No. 1 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section with reference to the establishment, levy and collection of the District No. 1 Required Mill Levy. The Board of District No. 1 shall levy, certify and collect the District No. 1 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in the 1998 Bond Resolution and this Agreement. District No. 1 in cooperation with District No. 2 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and remit all amounts realized from the sale of any real or personal property for delinquent taxes to District No. 2 (not required for payment of principal of and interest on the 1998 Bonds) in accordance with the provisions of this Agreement. e. District No. 1 shall be prohibited from retaining, appropriating, expending, pledging or otherwise encumbering any portion of the District No. 1 Pledged Revenues that are received by District No. 1 for any purpose, and all of such revenues and monies shall be transferred and paid to District No. 2 in accordance with the provisions of this Agreement. f. At any and all times, District No. 1 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certifications and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 4.2 Rates, Fees and Charges. During the Term, District No. 1 shall adopt, impose and remit to District No. 2 such rates, fees, tolls and charges as are established by Obligations or to fund the Process of Construction costs and the Administrative Expenses of the Districts, and such rates, fees, (00141345.DOC /1 11 tolls and charges shall be deemed part of the District No. 1 Pledged Revenues. The procedures for adopting, budgeting and transferring such fees will be established by District No. 2. Section 4.3 District No. 1 Obligations. Other than the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall incur no direct Obligations, Developer Advances, or direct costs for Processing of Construction of the Public Improvements or for any other purpose, except for the repayment of the 1998 Bonds, unless otherwise approved in writing by each District. Section 4.4 Inclusion and Exclusion of Property. As contemplated in the Service Plan, District No. 1 shall process and approve the inclusion of platted property that is excluded from District No. 2 following infrastructure development. Upon petition of any property owner for the inclusion or exclusion of any other property into or from District No. 1, the Board of District No. 1 shall, prior to conducting any public hearing thereon, notify District No. 2 of such petition in writing. Before granting any petition for inclusion of such property into District No. 1, the Board of District No. 1 shall impose all conditions for inclusion established by District No. 2. District No. 1 shall exclude no property from District No. 1 without the prior written approval of District No. 2. All taxable property located within the original boundaries of District No. 1 shall remain liable for the repayment of its proportionate share of outstanding 1998 Bond indebtedness thereon in accordance with State law. Section 4.5 Dissolution of District No. 2. Upon receipt of notice and the dissolution of District No. 2 in accordance with the Service Plan, District No. 2 shall transfer, and District No. 1 shall accept responsibility for the operations and maintenance of all Public Improvements located within the Service Area that have not been transferred to the County or another district or public agency. Section 4.6 Organization of Additional Districts. No other special district or subdistrict shall be organized within the boundaries of either of the Districts without (i) the prior consent in writing of the affected District in accordance with State law and (ii) the County's approval of an amendment of the Service Plan relating thereto. SECTION 5. DISTRICT NO. 2 RESPONSIBILITIES Section 5.1 Imposition of the District No. 2 Required Mill Levy. Until such time as (i) the 1998 Bonds and all (00141345.DOC /1 12 other Obligations, including without limitation all Obligations issued pursuant to the Developer Advances, have been paid in full or payment thereof has been provided for, (ii) all of the Public Improvements have been completed and paid for, (iii) payment of the Administrative Expenses has been provided for, and (iv) District No. 2 has been dissolved or consolidated with District No. 1, District No. 2 shall: a. Provide written notice to District No. 1 of the District No. 1 Required Mill Levy in accordance with Section 4.1(a). b. Commencing with the 2010 fiscal and property tax collection year and for each year thereafter during the Term, certify the District No. 2 Required Mill Levy on property within its boundaries no later than December 1 of each year in accordance with statutory requirements. c. District No. 2 shall apply the Project Revenues in the following priority: (i) first, for payment of Administrative Expenses; then (ii) funding on or before December 31, 2009 a reserve for the repayment of the 1998 Bonds in the amount of $200,000 ("Bonds Reserve"); then (iii) payment of the Process of Construction costs and the repayment of all Obligations other than the 1998 Bonds; and then (iv) the funding of any other amenities, facilities or equipment as may be determined beneficial to the Development or as may otherwise be provided in this Agreement. d. In the event District No. 1 does not receive sufficient revenues from its District No. 1 Required Mill Levy to make payment of principal of and interest on the 1998 Bonds, District No. 2 shall remit funds from the Bond Reserve to District No. 1 in an amount sufficient for District No. 1 to make payment on the 1998 Bonds. At such time when the 1998 Bonds are paid in full, the Bond Reserve shall be released to District No. 2 for expenditure in accordance with the Funding Priorities. e. The provisions of this Section are hereby declared to be the certificate of the Board of District No. 2 to the County authorizing the District No. 2 Required Mill Levy to be levied by the County, from year to year, as required by law for the purposes set forth herein. f. It shall be the duty of the Board of District No. 2 annually, at the time and in the manner provided by law for the adoption of the Fiscal Year Budget and the levy of property taxes, to ratify and carry out the provisions of this Section District No. 2 Required Mill Levy, including without limitation conducting a special election in November 2009 to authorize the (00141345.COC /1 13 District No. 2 Required Mill Levy and any other obligations requiring electoral approval set forth herein. The Board of District No. 2 shall levy, certify and collect the District No. 2 Required Mill Levy for the purposes and in the manner provided by law and for the purposes and in the manner set forth in this Agreement. District No. 2. in cooperation with District No. 1 shall pursue any reasonable remedy available to collect, or cause the collection of, delinquent property taxes and apply all amounts realized from the sale of any real or personal property for delinquent taxes in accordance with the provisions of this Agreement. g. At any and all times, District No. 2 shall, to the extent authorized by law, pass, make, do, perform, execute, acknowledge and deliver any and all further agreements, acts, conveyances, assignments, transfers, certification and assurances as may be necessary or desirable for the better assuring, effecting, confirming, undertaking and completing any and all obligations, duties, responsibilities and acts, or as may otherwise be reasonably required to carry out the terms and purposes of this Agreement and to comply with the Service Plan. Section 5.2 General Responsibilities. District No. 2 shall exercise such duties and authority and shall have all the powers as are generally provided by State law and in the Service Plan. District No. 2, in its reasonable discretion, shall perform the following services and exercise the following powers for and on behalf the Districts: a. Manage and control the financing of the Public Improvements and the Processing of Construction, the payment of Administrative Expenses, and the completion of all actions, activities and work required to implement the Service Plan and this Agreement in conformance with the Funding Priorities; b. Budget and appropriate monies for public purposes in conformance with the Funding Priorities and provide for the payment of all expenses of the Districts; c. Establish uniform rules and regulations for the inclusion of property into the Districts in accordance with the provisions of the Service Plan; d. Adopt and enforce uniform rules and regulations for administrative and operating purposes applicable throughout the Service Area; 6r-- E.tabt±Bh—a-1 , _ connections fees, tap fees, system development fees, facility fees, and other rates, fees, tolls and charges for the provision (00141345.DOC /1 14 of the Public Improvements and services within the Districts, which shall be applied uniformly throughout the Service Area; f. Negotiate, prepare and enter into all applications, permits, licenses, agreements or other documents necessary to secure all applicable federal, State, County, and local approvals or other governmental authorizations for the financing, Processing of Construction, and operation and maintenance of the Public Improvements; g. Own, manage, operate, maintain and replace the Public Improvements and all property of the Districts for the general benefit of and use by all property owners, residents and related persons within the Service Area, without discrimination between the various areas of the Districts, until transferred to the County or another district or public agency. To the extent not previously effectuated, District No. 1 hereby transfers and assigns all of its interests in the Public Improvements and property of the Districts to District No. 2 for public use, subject to all limitations and conditions set forth herein; and h. Take all other actions required to implement and comply with the Service Plan and all agreements affecting the business affairs and interests of the Districts to which the District is or may become a party. Section 5.3 Financing of Public Improvements. District No. 2 shall finance and provide for the Process of Construction of all Public Improvements as required for each phase of the Development by incurring Obligations or using Project Revenues to pay the costs of the Process of Construction in conformance with the Funding Priorities and the provisions of the Service Plan. District No. 2 shall incur no Obligation which obligates District No. 1 or properties within District No. 1 for repayment of such Obligation except from the District No. 1 Pledged Revenues imposed, collected and remitted in accordance with the provisions hereof. District No. 2 shall apply and expend the Project Revenues in conformance with the Funding Priorities. Section 5.4 Completion of No. 2 shall be responsible operation and maintenance of accordance with the provisions of Plan. District No. 2 shall, determinations relating to the Revenues and proceeds of Obl Public Improvements. District for the construction, completion, the Public Improvements in this Agreement and the Service in its discretion, make all expenditure of any Project igations for Processing of Process of Construction costs, or for any other purpose with respect to the implementation, performance or enforcement of the (00141345.DOC /1 15 terms of this Agreement. Except as provided for herein for the remittance of the District No. 1 Pledged Revenues to District No. 2, District No. 1 shall have no responsibility for the financing, Processing of Construction, or the operation and maintenance of the Public Improvements. District No. 2 may transfer certain Public Improvements to the County or another public agency for ownership, operation and maintenance in accordance with the provisions of the Service Plan or intergovernmental agreements. District No. 2 shall own, manage, operate and maintain for the benefit of all property owners, residents and related persons within the Districts, without discrimination between the various areas of the Districts, all Public Improvements that are not transferred to the County or another public agency. All streets and roads owned and operated by District No. 2 shall be open for public use, subject to reasonable regulations, and shall be maintained in conformance with County road standards. All other Public Improvements and facilities of the Districts shall be available for public use, subject to reasonable regulations, and shall be maintained in a commercially reasonable manner. Section 5.5 Management of Districts. District No. 2 shall manage and administer all business affairs of the Districts, including without limitation the hiring and engagement of all employees, independent contractors, consultants, advisors, accountants, auditors, attorneys and other personnel, record - keeping, accounting and financial services, payment of Administrative Expenses, liability and property insurance, and all actions relating to statutory compliance. An executive committee of the Boards shall be constituted to facilitate ongoing communication between District No. 1 and District No. 2. The executive committee shall be composed of the president of each Board and shall also include one other Board member of each District who shall be appointed, removed, and replaced by actions of the applicable appointing Board from time to time. The executive committee shall meet periodically to discuss general management issues and to provide any comments on such issues in writing to the Boards for consideration. The executive committee may, as it deems appropriate, make recommendations to the Boards on issues on the respective Board's agenda. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the decisions of the Boards in a manner consistent with the provisions and authority conferred upon each of the Districts under this Agreement. The executive committee may, as it deems appropriate, provide recommendations to the Boards on ways to implement the provisions of the Service Plan. Addi tiona�ly �th�-oxecc. :. a -co ommuni-oats—to—a District on any other matter as may be directed by the other District. In no event will the executive committee have any )00141345.DOC /) 16 authority to make decisions or interfere with the decisions of the Districts. Section 5.6 Administrative Expenses. To the extent that adequate funding is available from Project Revenues and other legally available sources as provided in the Fiscal Year Budget, District No. 2 shall (i) manage, operate, maintain, repair and replace all Public Improvements not transferred to the County or another district or public agency, and (ii) generally administer the operations and business of the Districts, including without limitation the payment of all Administrative Expenses or other costs associated therewith. Section 5.7 Facility Fees and Water Tap Fees. District No. 1 has entered into certain facility fee and water tap fee agreements with developers within the District. All facility fees and water tap fees paid pursuant to such agreements (regardless of designation) shall be considered Project Revenues, unless previously pledged for the repayment of any Obligations, and shall be collected and used by District No. 2 for the completion of the Public Improvements in accordance with the provisions of Section 5.4. As recognized under the Original Agreement, this Agreement shall constitute an assignment to District No. 2 of all rights and interests of District No. 1 in and to such facility fees and water tap fees. SECTION 6. EVENTS OF DEFAULT AND REMEDIES Section 6.1 Events of Default by Districts. Subject to the terms of Section 6.5, a Default or an Event of Default by either Party under this Agreement shall mean one or more of the following events: a. Any representation or warranty made in this Agreement by a Party which was materially inaccurate when made or is proven to be materially inaccurate during the Term; b. Failure of District No. 1 to impose the District No. 1 Required Mill Levy in any year or to remit District No. 1 Pledged Revenue to District No. 2; or c. Failure of District No. 2 to impose the District No. 2 Required Mill Levy in any year; or d. A Party fails to substantially observe, comply with or perform any material responsibility, obligation, duty or agreement required of it under this Agreement; provided, perform any responsibility or obligation hereunder shall not relieve or release either District from imposing the District No. (00141345.DOC /) 17 1 or District No. 2 Required Mill Levy, as applicable, and further provided that failure by either District to observe or perform any duty, responsibility or obligation hereunder shall not relieve or release the other District from making any payment, levying any property tax, otherwise performing its responsibilities hereunder, or result in an amendment or the termination of this Agreement. Section 6.2 Cure Period. Except as more specifically provided in subsection a. hereof with regard to District No. l's failure to impose the District No. 1 Required Mill Levy, upon the occurrence of an Event of Default by either Party, such Party shall, upon written notice from the other Party, proceed promptly to cure or remedy such Default. Such Default shall be cured within 30 days (or immediately with respect to a monetary payment Default) after receipt of such notice, or, if such default is of a nature which is not capable of being cured within such time period, curative action shall be commenced within the cure period and diligently pursued to completion. a. in the event that District No. 1 fails to impose the District No. 1 Required Mill Levy or District No. 2 fails to impose the District No. 2 Required Mill Levy by December 1 of any year, the defaulting District shall have no opportunity to cure and, in order to ensure that the District No. 1 Required Mill Levy or the District No. 2 Required Mill Levy, as applicable, is certified by December 15 of such year, the non - defaulting District, may, without further notice to the defaulting District, immediately proceed with the remedies set forth in Section 6.3. Section 6.3 Remedies on Default. Whenever an Event of Default occurs and is not cured or cure undertaken in accordance with the provisions of Section 6.2, the non -defaulting Party may take any one or more of the following actions: a. Recovery of actual costs and damages, including reasonable attorney fees and related expenses, through any action available at law or in equity, including without limitation the right of District No. 2 to certify to the County for collection against all taxable property within District No. 1, the amount of such costs and damages as a delinquent fee for services provided by District No. 2 in accordance with the procedures set forth in Section 32-1-1101(1)(e), C.R.S., or other special proceedings; b. In the event that either District has not Levy, as applicable, the non -defaulting District may, subject to the provisions of the 1998 Bond Resolution, enforce the (00141345.000 /) 18 defaulting District's obligation to certify the District No. 1 or District No. 2 Required Mill Levy, as applicable, by mandamus or other action or special proceeding; c. In the event that District No. 2 fails to perform any management or operational responsibility specified herein and to cure or remedy such Default within the applicable cure period, District No. 1 may exercise temporary management responsibility over, or petition the District Court to appoint a conservator for, the Public Improvements and facilities of the Districts, including without limitation the levy, collection and expenditure of the Project Revenues to repay any Obligations currently due and to pay the Administrative Expenses of the Districts, until District No. 2 has cured or remedied such Default. In no event shall this Agreement be amended by District No. 1 in the event District No. 1 exercises its rights under this subsection c.; and d. Any other remedy available at law, in equity, or specified under the terms of this Agreement or the Service Plan, including without limitation specific performance or injunction. Section 6.4 Waivers. Except as otherwise expressly provided in this Agreement, any delay by either Party in asserting any right or remedy under this Agreement shall not operate as a waiver of any such right or limit such right in any way. Any waiver in fact made by such Party with respect to any Default by the other Party shall not be considered as a waiver of rights with respect to any other Default by the non -defaulting Party or with respect to the particular Default, except to the extent specifically waived in writing. It is the intent of the Parties that this provision will enable each Party to avoid the risk of being limited in the exercise of any right or remedy provided in this Agreement by waiver, laches or otherwise at a time when it may still hope to resolve any problem created by such Default. Section 6.5 Unavoidable Delay in Performance. Whether stated or not, all periods of time in this Agreement are subject to the provisions of this Section. Neither Party shall be considered in Default of its obligations under this Agreement in the event of unavoidable delay due to: (i) causes beyond its control and without its fault or negligence, including without limitation acts of God, public enemies, the federal, State, County or other local governments, the other Party or third parties, litigation concerning the validity and enforceability of tho—Servtos—Pla , tracts imp-lemonttng—t₹n= Sarvico-Plair-ortiTis _ Agreement or relating to transactions contemplated herein (including the effect of petitions for initiative or referendum), (00141345.000 /1 19 fires, floods, epidemics, restrictions, strikes, embargoes, and unusually severe weather or the delays of contractors or materialmen due to any of such causes; (ii) bankruptcy, insolvency, reorganization or similar actions under laws affecting creditor's rights, or any foreclosure or other exercise of remedies of any creditor or lender in connection therewith; and (iii) without limiting any of the foregoing, any action or inaction of the County, its officers, agents, agencies, departments, committees or commissioners which delays, directly or indirectly, the District's ability to perform, complete or comply with any schedule or requirement imposed by this Agreement, the Service Plan, or any Public Improvement project. In the event of the occurrence of such unavoidable delay, the time or times for performance of the obligations of the Party claiming delay shall be extended for the actual period of such delay; provided that the Party seeking the benefit of the provisions of this Section shall, within 30 days after such Party knows of such delay, first notify the other Party of the specific delay in writing and claim the right to An extension of performance for the period of such delay; and provided further that either Party's failure to notify the other of an event constituting an unavoidable delay shall not alter, detract from or negate its character as an unavoidable delay, if such event of delay was not known or reasonably discoverable by such Party. Section 6.6 Rights and Remedies Cumulative. The rights and remedies of the Parties under this Agreement are cumulative, and the exercise by either Party of any one or more of such rights shall not preclude the exercise by it, at the same or different times, of any other right or remedy specified herein for any other Default by the other Party. SECTION 7. MISCELLANEOUS PROVISIONS Section 7.1 Title of Sections. Any title of the several parts and sections of this Agreement are inserted for convenience or reference only and shall be disregarded in construing or interpreting any of its provisions. Section 7.2 Effective Date. This Agreement shall be in full force and effect and be legally binding upon each District upon the date of its execution by the Parties. On and after the effective date, the Original Agreement shall be terminated, amended and superseded in its entirety by this Agreement. All terms and provisions of this Agreement shall apply to any and all actions and requirements of each District for the 2009 Fiscal Year and each Fiscal Year thereafter during the Term. Section 7.3 No Third -Party Beneficiary. No third -party beneficiary rights shall be created in favor of any person not a (00141345.DOC /) 20 Party to this Agreement, unless the Parties mutually agree otherwise in writing. Section 7.4 Applicable Law. The laws of the State of Colorado shall govern the interpretation and enforcement of this Agreement. Venue shall be exclusive to the District Court in and for Weld County, Colorado. Section 7.5 Assignment. This Agreement shall not be assigned, in whole or in part, by either Party without the approval in writing of the other Party. This Agreement shall be binding on the Parties, their successors and assigns. Section 7.6 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under present or future laws effective during the Term, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement. The remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by the severance of such provision from this Agreement. Further, in lieu of such illegal, invalid or unenforceable provision, there shall be added, as part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and still be legal, valid and enforceable, and this Agreement shall be deemed reformed accordingly. Without limiting the generality of the foregoing, if all or any portion of the payments required by the terms of this Agreement are determined by a court of competent jurisdiction in a final non -appealable judgment to be contrary to public policy or otherwise precluded, the Parties shall proceed in good faith to promptly restructure and/or amend this Agreement, or to enter into a new agreement to effectuate such purpose. Section 7.7 Service Plan Modifications. Neither District shall publish, without providing prior written notice to the other District and the County, any notice pursuant to Section 32- 1-207(3), C.R.S., of its intent to undertake the construction of any Public Improvement, the issuance of Obligations, the imposition of the Required Mill Levy or any other tax, rate, toll, fee or charge, or any other proposed activity of such District that is not consistent with the terms of the Service Plan or this Agreement and that would require any action to enjoin such activity as a potential or actual material departure from the Service Plan of such District be brought within 45 days such —notice. (00141345.000 /1 21 • Section 7.8 Amendments. This Agreement may be amended, in whole or in part, by written instrument executed by the Parties. Each amendment, which is in writing and signed and delivered by the Parties, shall be effective to amend the provisions hereof. Section 7.9 Entirety. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and replaces in their entirety any prior agreements, understandings, warranties or representations between the Parties with respect to the subject matter hereof, including without limitation the Original Agreement. Section 7.10 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute one and the same instrument. Section 7.11 Notices. A notice or demand under this Agreement by either Party to the other Party shall be in writing and shall be deemed sufficiently given if delivered in person, by prepaid overnight express mail or national overnight courier service, or if forwarded by registered or certified mail, postage prepaid, return receipt requested, by electronically -confirmed facsimile transmission, and addressed as follows: a. Until subsequently changed, to: Beebe Draw Farms Metropolitan District No. 1 Attention: President 16500 Beebe Draw Farms Parkway Platteville, Colorado 80651 Beebe Draw Farms Metropolitan District No. 2 Attention: President 3600 South Logan, Suite 200 Englewood, Colorado 80110 With a copy to: Paul R. Cockrel Collins Cockrel & Cole, P.C. 390 Union Boulevard, Suite 400 Denver, Colorado 80228-1556 b. Or to such other address with respect to either Party as that Party may, from time to time, designate in forward to the other Party as provided in this writing and courier or express mail delivery, or on the third business day following deposit in the U.S. Mail as provided herein. (00141343.DOC /) 22 Section 7.12 Good Faith of Parties. Except where any matter is expressly stated to be in the discretion of a Party, the Parties agree that in the performance of this Agreement or in considering any requested extension of time, each Party will act in good faith and shall not act unreasonably, arbitrarily, capriciously, or unreasonably withhold or delay any approval required by this Agreement. Section 7.13 Time. Unless the context indicates differently, all references herein to days shall be to calendar days, and all references herein to periods of time shall be to consecutive days or continuous periods of time. If the day for any performance or event provided for herein is a Saturday, Sunday or other day on which either national banks or the office of the Clerk and Recorder of the County are not open for the regular transaction of business, such day shall be extended until the next day on which such banks and office are open for the transaction of business. All times shall be of the essence. Section 7.14 Further Assurances. The Parties agree to adopt or approve such resolutions, regulations and agreements, to execute such documents or instruments, and to take such action as shall be reasonably requested by the other Party to confirm or clarify the provisions herein and to effectuate the agreements herein contained and the intent thereof. If all or any portion of the Public Improvements, Obligations or agreements approved in connection with this Agreement are asserted or determined to be invalid, illegal or are otherwise precluded, the Parties shall cooperate in the joint defense thereof, and if such defense is unsuccessful, the Parties will use reasonable, diligent, good faith efforts to amend, reform or replace such precluded matters. Section 7.15 Certifications. The Parties agree to execute such documents or instruments as the other Party may reasonably request to verify or confirm the status of this Agreement or other intergovernmental agreements between the Districts, and of the performance of the obligations hereunder and such other matters as either Party may reasonably request. Section 7.16 Survival of Representations and Warranties. No representations or warranties whatever are made by any Party to this Agreement, except as specifically set forth in Section 3. The representations and warranties made by the Parties to this Agreement, and all covenants and agreements to be performed or complied with by the Parties under this Agreement shall be continuing to the end of the Term. (00141345.DOC /) 23 In Witness Whereof, the Districts have caused this Agreement to be duly executed as of the day first above written. BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 1 ATTEST: Sec a Secretary By: President BEEBE DRAW FARMS METROPOLITAN DISTRICT NO. 2 By: (00140177.DOC /) • • EXHIBIT F Affidavit of Publication of Notice of Hearing {00140302.DOC / 3) Iy rieTROaourl� ib N0TIt<E 19 FIEalrf+pa�hnitKeAaeA tt pr ad� eon e 8 tstroo la Mp the dee of . i041abe(Sot al Illh� l�e,,i� M�ths�eaIIrnma l la • �. Palaanptnteeraun catnati19902 On m ie gRCtVres Aw eAaiw�wn%I ' ore K je nle Wa RR Affidavit of Publication fif fepa>W&�4 BB pafi3: Tile tobeacdeidirg5fl.stePleaderlcanenlyd.- wdeedas bee' Anatol °Ilene t, rcMdad de .194510 1{BTscps i�3, Weo m Radec� alto Clerk en Ii ' i Ceu�ir� � Weet0$ 4,-0,8 B 17. T gi9Hodl4 some Waarotec eihl' re'S'wiMae therfi as Wr. cols ntenuMw bon the Tohod1aW lei 'tiff Ian BIIg,snlflgNa roar deer on lie P}rslenfin EhoAphd end MiM2l acres, ere'«IdNc. All ntereetpap iee niga etse'�uqtIbegr o#o'how' Oatst.terrdwpwnYmentembiltrf nsld re not be wonted WM-. tote 0101015 Son on October 20, 8945$ IIILivena�aIendetel dWW7a enbA. BAar 090 Union 8224,SSuuie4 epaltawood0 Ccie redo 'r THE nedfl # IpEoTORs oPTNE gEEEE9E O W MMMea PO[ AN OIBTRII T NO A. BEEBEDRMAW FARMS ROR TAN DISTRICT N0,1 Ttgmee.A. Burk 99CtMery • Qhrttine-.. . r 14;2022 STATE OF COLORADO County of Weld, I, Jennifer Usher of said County of Weld, being duly sworn, say that I am an advertising clerk of 55. THE TRIBUNE that the same is a daily newspaper of general circulation and printed and published in the City of Greeley, in said county and state; that the notice or advertisement, of which the annexed is a true copy, (days): that the notice was published in the regular and entire issue of every number of said newspaper during the period and time of publication of said notice, and in the newspaper proper and not in a supplement thereof; that the first publication of said notice was contained in the, issue of the said newspaper - bearing date the Fourteenth day of October AD.2008 and the last publication thereof: in the issue of said newspaper bearing date the Fourteenth day of October AD. 2008• that said The Tribune has been published continuously and uninterruptedly during the period of at least six months next prior to the first issue there of contained said notice or advertisement above referred to; that said newspaper has been admitted to the United States mails as second-class matter under the provisions of the Act of March 3, 1879, or any amendments thereof; and that said newspaper is a daily newspaper duly qualified for publishing legal notices and advertisements within the meaning of the laws of the State of Colorado. October 14, 2008 Total Charges: $61.52 6" day of, November 2008 My 'solo spires 0§/'1412 Notary Public Hello