HomeMy WebLinkAbout20042331 QVIGS 14tt-
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SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL
REVIEW (USR) APPLICATION
FOR PLANNING DEPARTMENT USE DATE RECEIVED:
RECEIPT#/AMOUNT# 1$ CASE#ASSIGNED:
APPLICATION RECEIVED BY PLANNER ASSIGNED:
Parcel Number ! A a J - j 5- - 0 - 0 0 - d 02
(12 digit number-found on Tax I.D.information,obtainable at the Weld County Assessor's Office,or www.co.weld.co.us).
Legal Description Mr.7Z kit of me iie„t A4ireder ,4r, Section 3j', Township 7 North, Range G_7 West
Flood Plain: Zone District: , Total Acreage: 7/1. 7f , Overlay District:
Geological Hazard: , Airport Overlay District:
FEE OWNER(S)I� OF THE PROPERTY:
/I!Name: i//bea �ECN Q/r, r/i«
Work Phone#503i- 77,--p...3,0 Home Phone# 303-77z-(23o Email Address b S',Fr-c ,fir Pc c,7n/.co+n)
Address: 3Z5 Gtwc/i ;/;P
City/State/Zip Code Ao„j,,r", - rc lu fel
Name:
Work Phone# Home Phone# Email Address
Address:
City/State/Zip Code
Name:
Work Phone# Home Phone# Email Address
Address:
City/State/Zip Code
APPLICANT OR AUTHORIZED AGENT (See Below:Authorization must accompany applications signed by Authorized Agent)
Name:
Work Phone# Home Phone# Email Address
Address:
City/State/Zip Code
PROPOSED USE:
I(We)hereby depose and state under penalties of perjury that all statements,proposals,and/or plans submitted with
or contained within the application are true and correct to the best of my(our)knowledge. Signatures of all fee owners
of property must sign this application. If an Authorized Agent signs,a letter of authorization from all fee owners must
be included with the application. If a corporation is the fee owner, notarized evidence must be included indicating that
the signatory has to legal authority to sign for the corporation.
• 1 AVoy EXHIBIT
Signature: Owner or Au orized Agent Date Signature: Owner or Authorized Agent
2004-2331
-c..
FOR COMMERCIAL SITES, PLEASE COMPLETE THE FOLLOWING INFORMATION
BUSINESS EMERGENCY INFORMATION: /
Business Name: ArtPstrl O;/ Fe/d Sor ices Phone: M-nit 0760
Address: /0050/ je./CR A K City,ST,Zip:A f fw,,e) CO 10(57
Business Owner: Ndrk ,Brown r70- 5-151,-_CAC(Phone: q70-377- we-y
Home Address: /#0yy tikg ,2k" City,ST,Zip: P%feui% (o r.0.<57
List three persons in the order to be called in the event of an emergency:
NAME TITLE ADDRESS PHONE
f70- FS S.t6G
t<r` fin wn f/e /ro// ; taT /Any woe .fig Do - c7/ - Wet
foie rtsrrbct At o .-. 1/1 rin tr.#..o knz kj w4 cv os o) 3o5- 77A- /23 a
0.2. - c CA,/- ov/x�
n�(Aet tier Alt) rsf 17>h,�.,- 7vz S; Oft ff a if `SOY/ ycz- -
Business Hours: 7eit/Q°r U/tk - z., Days: girl e c a Ch yyid
Type of Alarm: '.o - Burglar Holdup Fire Silent Audible
Name and address of Alarm Company:
Location of Safe:
MISCELLANEOUS INFORMATION:
Number of entry/exit doors in this building: p2 Location(s): Lek eb rtenihnt /79-i
oc € hjsvf€
Is alcohol stored in building? yeS Location(s): /Pic ken /`e Jr,c(f2rL74r
Are drugs stored in building? /70 Location(s): _ro»p c A.•r- A co ,-,1 4J A pyo—fr,,.
Are weapons stored in building? yes Location(s): �/j,„ j-oc.., n,t 4e/roc-in
The following programs are offered as a public service of the Weld County Sheriff's Office. Please indicate the
programs of interest. Physical Security Check Crime Prevention Presentation
UTILITY SHUT OFF LOCATIONS:
Main Electrical: in dinlny tank,
// ,f- `j, „1e
Gas Shut Off: iq re II.-.-- cf- /J,cf5e
ExteriorWaterShutoff: $0/4 d- house SA /s orn Poi 6r
Interior Water Shutoff: ill C .//Ed- of Au 5 e
-11-
Site Specific Development Plan and Use by Special Review (USR) Questionnaire
10084 Weld County Road 28
Platteville, CO 80651
1. Arrested Oil Field Services' base for operations is located at 10084 Weld County Road 28. Arrested has
three employees not counting the sole proprietor, Mark Brown, or myself, the business manager. I work
out of my home office in Nebraska. Our hours of operation vary, but for the most part are during
daylight hours. We use Mark's residence, a rental property, as the base for operations where everyone
reports in the morning before work and where vehicles are parked during non-business hours. The home
itself serves as the office for Mark and only in times of need as a restroom for employees. All materials
and equipment are stored in the vehicles. Customers do not visit the site. The only advertising on the
site is the stickers on the vehicles as mandated by the Department of Transportation. There are two
gravel trucks, backhoe, trailer, two-ton ford truck, and two pick-ups parked on the site during non-
business hours that are company vehicles. The vehicles are parked neatly on the backside of the
property and are only adjacent to properties which are agricultural and do not have any homes or
residents. The site has a couple of buildings, which are not used for the business. There are no
offensive noises, vibrations, smoke, dust, odors, heat, glare or electrical interference or other hazard or
nuisance noticeable outside of the home of the business or off the lot.
2. The Comprehensive Plan is intended to guide the coordinated and harmonious development of Weld
County. The USR will allow Arrested Oil Field Services to use 10084 WCR 28 as its home base for
work performed in the oil field industry which is vital to the economy of Weld County. One goal of the
Comprehensive Plan is to meet the needs of a developing county which includes protecting the
community's health, safety, and welfare—vital components of private property rights. This is a goal
shared by Arrested Oil Field Services as stated in our mission statement. We strive to provide the
highest quality of service and value, in a timely fashion, while maintaining safety as our number one
priority. We strive to achieve success for the entire oil and gas industry and its supporting companies
and communities. Our commitment to our mission is apparent in our daily activities and is the key to
the success of our company.
3. The property is zoned agricultural. The nature of the business is consistent with that as we operate
throughout the agricultural community located in Weld County. The equipment located on the site is
very similar to the equipment that would be found on a typical farm. The equipment is kept clean and is
professionally maintained.
4. The general nature of our business isn't exactly agricultural, but does appear to be so. The equipment
that is parked on the property is similar to the equipment you would find on the adjacent farm properties.
The equipment is completely noninvasive and does not require any changes to the property. The home
office also is compatible with the current house and required no changes to be made to the residence.
5.
a. On a full-time basis,just Mark Brown resides on the property.
b. Four employees report to the property as stated in#1.
c. Hours of operation vary, but are typically during daylight hours.
d. No structures will be erected on the site.
e. The property is the home to Mark's pets, a dog and cat.
f. The site will be accessed by two gravel trucks, backhoe, trailer, two-ton ford truck, two pick-ups,
and possible other similar equipment. In a typical day, the equipment leaves the site at the
beginning of the work day and returns at the end of the work day.
g. Fire protection will be provided by Platteville Fire Protection District.
Page 2
h. The water sources are Domestic Well Permit#227381A, Irrigation Well Permit#20844 plus 80
shares of Lupton Meadows Ditch Company.
i. The sewage disposal system on the property is septic system permit #SE-0300124.
j. We have no plans to build storage or warehousing structures on the property as we have no need
for items to be stored.
6. We are not proposing to change the landscaping of the property. It will remain a residence for all
common purposes, with the exception being vehicles and equipment being parked on the property. The
only issue keeping us from qualifying for the Home Occupation is that we have more than one vehicle
parked on the property. We are not developing the property or building any additional structures.
7. If the business is ever to be terminated, the property will continue to serve as the resident for Mark
Brown. We would simply liquidate our assets of the company.
8. The land has a nice slope to the North and slightly more slope to the East. The land was leveled to
improve flood irrigation in the early1950s. The storm water drainage will go the same way it has always
gone North and mostly East it never seems to flow off the site, in an extreme event it would flow into a
native grass area an then into the Beeman Ditch at the East edge of the site.
9. There will be no construction on the site.
10. There will be no construction wastes. Any waste associated with the business is put in our dumpsters
which we have picked up weekly by B&C Refuse.
Site Specific Development Plan and Use by Special Review(USR)Questionnaire 10084 WCR 28,Platteville,CO 80651
Reviewed By:
Title:
-8-
WELD COUNTY ROAD ACCESS INFORMATION SHEET
Weld County Department of Public Works
111 H Street, P.O. Box 758, Greeley, Colorado 80632
Phone: (970 )356-4000, Ext. 3750 Fax: (970)304-6497
Road File#: Date:
RE# : // ��-- Other Case #:
1. Applicant Name�l�'IAxc� /',l/t eJ27% r/Ac Phone 303— "A—
Address jz5- Cresf/`;4F ,,(& ,City larrjry,,,t State Co Zip fztsa/
2. Address or Location of Access /ODq.v £✓CR.2 S' f�/1 er,V '/y
Section 3f Township 3 Range G7sV Subdivision Block Lot
Weld County Road#: ;,.f Side of Road $ 't4 Distance from nearest intersection 0
3. Is there an existing access(es)to the property? Yes No #of Accesses
4. Proposed Use:
®' Permanent lir Residential/Agricultural U Industrial
❑ Temporary ❑ Subdivision la—Commercial ❑ Other
5. Site Sketch O
Legend for Access Description: WCRit0
AG = Agricultural
RES = Residential WI✓(:l 2.S�
O&G = Oil&Gas
D.R. = Ditch Road 4 446 lie= House
O = Shed ote e p `
A = Proposed Access an /°�
A = Existing Access
Ni
OFFICE USE ONLY:
Road ADT Date Accidents Date
Road ADT Date Accidents Date
Drainage Requirement Culvert Size Length
Special Conditions
❑ Installation Authorized ❑ Information Insufficient
.
Reviewed By: Title:
-8-
ANNUAL MINUTES
OF
MILDRED MAE SARCHET, LLC
a Colorado limited liability company
The annual meeting of the Members of Mildred Mae Sarchet, LLC, was held at the office of the
company in Longmont, Colorado, on December 1, 2003, at 10:00 o'clock a.m.
The Members reviewed the business of the company, which had taken place during the past
year. Upon motion duly made and passed, it was:
RESOLVED, that the Members of the company ratify and approve all actions taken by the
Manager on behalf of the company during the past year, including, without limitation, the
following:
1. That the Company leased 40 shares of the 80 shares of Lupton Meadows Ditch
to the Milray, LLC and Jim Vogel, the farm tenant.
2. That $1,400 was spent obtaining a Recorded Exemption from Weld County for
a 1.5 acre lot located in the northeast corner of the farm below Beeman ditch. Jerry
McCrae, the engineering firm of Greeley, Colorado will be paid approximately$1,500
for the plat map upon completion.
3. That a contract with the Valley Irrigation of Greeley, Colorado was signed for
a Valley 8000 pivot system for a cost of$42,440. $42,440 had been borrowed for the
Valley machine and $38,196 has been paid as of December 2003. A contract was
signed for ancillary work and supplies to complete the watering system for a cost of
$22,283.
RESOLVED: That Mildred M. Sarchet loaned the company $4,500 in December which the
Company agreed to repay upon sale of the Recorded Exemption lot.
RESOLVED: That Robert A. Sarchet loaned the company $35,000 in December which the
Company agreed to repay upon the sale of the Recorded Exemption lot.
RESOLVED: That the 1.5 acre Recorded Exemption lot has been listed for $85,000 with
Jim Green of Coldwell Banker of Longmont.
RESOLVED: That the following Manager was duly elected for the ensuing year: Robert A.
Sarchet.
There being no further business to come before the meeting,the same was duly adjourned.
WITNESS the execution hereof to be effective the lst day of December, 2003.
MEMBERS OF MILDRED MAE SARCHET,LLC:
Robert A. Sarchet, individually and as
Trustee of the Robert A. Sarchet Living Trust
1 �i2'!7ilLP� J tie,u ut.
Deanne G. Sarchet, Trustee of the
Robert A. Sarchet Living Trust
Page 2
Annual Minutes of the Mildred Mae Sarchet,LLC
December 1,2003
/16 Ie5,p4 ma /fl
:, i .,, /-'`l' /p
Restated Operating Declaration
of the Sole Member
of
Mildred Mae Sarchet, LLC
A Colorado Limited Liability Company
TABLE OF CONTENTS
Explanatory Statement
Section I Defined Terms
Section II Formation and Name; Office; Purpose; Term
2.1 Organization
2.2 Name of Company
2.3 Purpose
2.4 Term
2.5 Principal Office
2.6 Registered Agent
2.7 Members
Section III Members; Capital; Capital Accounts
3.1 Initial Capital Contributions
3.2 No Other Capital Contributions Required
3.3 No Interest on Capital Contributions
3.4 Return of Capital Contributions
3.5 Form of Return of Capital
3.6 Capital Accounts
3.7 Loans
Section IV Profit, Loss, and Distributions
4.1 Distributions of Cash Flow
4.2 Allocation of Profit or Loss
4.3 Regulatory Allocations
4.4 Liquidation and Dissolution
4.5 General
Section V Management: Rights,Powers, and Duties
5.1 Management
5.2 Meetings of and Voting by Members
5.3 Personal Services
5.4 Duties of Parties
5.5 Liability and Indemnification
Section VI Transfer of Interests and Withdrawals of Members
6.1 Transfers
6.2 Resignation
6.3 Optional Buy-out in Event of Involuntary Withdrawal
6.4 Appraised Value
6.5 Terms of Payment
6.6 Transfers Pursuant to Judicial Order •
6.7 Admission of Transferee as Member
6.8 Admission of Members upon Consent of Interest Holders
Section VII Dissolution, Liquidation, and Termination of the Company
7.1 Events of Dissolution
7.2 Procedure for Winding Up
7.3 Filing of Statement of Intent to Dissolve and Articles of
Dissolution
Section VIII Books,Records,Accounting, and Tax Elections
8.1 Bank Accounts
8.2 Books and Records
8.3 Annual Accounting Period
8.4 Reports
Section IX General Provisions
9.1 Assurances
9.2 Notifications
9.3 Specific Performance
9.4 Complete Declaration
9.5 Applicable Law
9.6 Section Titles
9.7 Binding Provisions
9.8 Jurisdiction and Venue
9.9 Terms
9.10 Separability of Provisions
9.11 Counterparts
Exhibit A List of Members, Capital,Percentages, and Membership Units
Exhibit B Legal Description of Property
RESTATED OPERATING DECLARATION
OF THE SOLE MEMBER
OF
MILDRED MAE SARCHET, LLC
A COLORADO LIMITED LIABILITY COMPANY
This Restated Operating Declaration is made to be effective the 30th day of December,
2002.
Section I
Defined Terms
The following italicized terms shall have the meanings specified in this Section I. Other
terms are defined in the text of this Declaration; and throughout this Declaration, those terms shall
have the meanings respectively ascribed to them.
"Act" means the Colorado Limited Liability Company Act, as amended from time to time.
"Adjusted Capital Account Deficit" means, with respect to any Interest Holder, the deficit
balance, if any, in the Interest Holder's Capital Account as of the end of the relevant taxable year,
after giving effect to the following adjustments:
(i) the deficit shall be decreased by the amounts which the Interest Holder is obligated to
restore pursuant to Section 4.4.2, or is deemed obligated to restore pursuant to Regulation
Sections 1.704-1(g)(i) and (I)(5) (i.e., the Interest Holder's Share of Minimum Gain and
Member Minimum Gain); and
(ii) the deficit shall be increased by the items described in Regulation Section 1.704-
1(b)(2)(ii)(d)(4),(5),and(6).
"Affiliate" means, with respect to any Member, any Person: (i) which owns directly or
indirectly more than twenty percent (20%) of the voting interests in the Member; or (ii) in which
the Member owns directly or indirectly more than twenty percent (20%) of the voting interests; or
(iii) in which more than twenty percent (20%) of the voting interests are owned directly or
indirectly by a Person who has a relationship with the Member described in clause(i)or(ii)above.
"Capital Account" means the account maintained by the Company for each Interest Holder
in accordance with the following provisions:
(i) an Interest Holder's Capital Account shall be credited with the Interest Holder's Capital
Contributions, the amount of any Company liabilities assumed by the Interest Holder (or
which are secured by Company property distributed to the Interest Holder), the Interest
Holder's allocable share of Profit and any item in the nature of income or gain specially
allocated to such Interest Holder pursuant to the provisions of Section IV (other than
Section 4.3.3); and
3
(ii) an Interest Holder's Capital Account shall be debited with the amount of money and the
fair market value of any Company property distributed to the Interest Holder, the Interest
Holder's allocable share of Loss, and any item in the nature of expenses or losses specially
allocated to the Interest Holder pursuant to the provisions of Section IV (other than Section
4.3.3).
If any interest is transferred pursuant to the terms of this Declaration, the transferee shall succeed to
the Capital Account of the transferor to the extent the Capital Account is attributable to the
transferred Interest. If the book value of Company property is adjusted pursuant to Section 4.3.3,
the Capital Account of each Interest Holder shall be adjusted to reflect the aggregate adjustment in
the same manner as if the Company had recognized gain or loss equal to the amount of such
aggregate adjustment. It is intended that the Capital Accounts of all Interest Holders shall be
maintained in compliance with the provisions of Regulation Section 1.704-1(b), and all provisions
of this Declaration relating to the maintenance of Capital Accounts shall be interpreted and applied
in a manner consistent with that Regulation.
"Capital Contribution" means the total amount of cash and the fair market value of any
other assets contributed (or deemed contributed under Regulation Section 1.704-1(b)(2)(iv)(d)) to
the Company by a Member,net of liabilities assumed or to which the assets are subject.
"Cash Flow" means all cash funds derived from operations of the Company (including
interest received on reserves), without reduction for any noncash charges, but less cash funds used
to pay current operating expenses and to pay or establish reasonable reserves for future expenses,
debt payments, capital improvements and replacements as determined by the Members. Cash Flow
shall not include capital Proceeds, but shall be increased by the reduction of any reserve previously
established.
"Code" means the Internal Revenue Code of 1986, as amended, or any corresponding
provision of any succeeding law.
"Company" means the limited liability company formed in accordance with this
Declaration.
"CSOS" means the Colorado Secretary of State.
"Declaration" means this Declaration,as amended from time to time.
"Interest Holder" means any Person who holds Membership Units,whether as a member or
as an unadmitted assignee of a Member.
"Involuntary Withdrawal"means, with respect to any Member, the occurrence of any of the
following events:
(i) the Member makes an assignment for the benefit of creditors;
(ii) the Member files a voluntary petition of bankruptcy;
(iii) the Member is adjudged bankrupt or insolvent or there is entered against the Member .
an order for relief in any bankruptcy or insolvency proceeding;
4
(iv) the Member files a petition seeking for the Member any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any statute, law,
or regulation;
(v) the Member seeks, consents to, or acquiesces in the appointment of a trustee for,
receiver for, or liquidation of the Member or of all or any substantial part of the Member's
properties;
(vi) the Member files an answer or other pleading admitting or failing to contest the
material allegations of a petition filed against the Member in any proceeding described in
Subsections(i)through(v);
(vii) any proceeding against the Member seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief under any statute, law,
or regulation, continues for one hundred twenty (120) days after the commencement
thereof, or the appointment of a trustee,receiver, or liquidator for the Member of all or any
substantial part of the Member's properties without the Member's agreement or
acquiescence, which appointment is not vacated or stayed for one hundred twenty (120)
days,or if the appointment is stayed, for one hundred twenty(120)days after the expiration
of the stay during which period the appointment is not vacated;
(viii) if the Member is an Individual, the Member's death or adjudication by a court of
competent jurisdiction as incompetent to manage the Member's person or property;
(ix) if the Member is acting as a Member by virtue of being a trustee of a trust, the
termination of the trust;
(x) if the Member is a partnership or limited liability company, the dissolution and
commencement of winding up of the partnership or limited liability company;
(xi) if the Member is a corporation, the dissolution of the corporation or the revocation of
its charter;
(xii) if the Member is an estate, the distribution by the fiduciary of the estate's entire
interest in the Company; or
•
(xiii) breach of the Declaration by the Member.
"Manager" means a person elected or otherwise designated by the members of the
Company to manage the Company.
"Member"means each Person signing this Declaration and any Person who subsequently is
admitted as a member of the Company.
"Member Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(i) for
"partner nonrecourse debt minimum gain."
"Membership Interest" means a Person's share of the Profits and Losses of, and the right to
receive distributions from, the Company, as determined by the ratio of that Person's Membership
Units to the total Membership Units (10,000).
5
"Membership Rights" means all of the rights of a Member in the Company, including a
Member's" (i) Membership Interest; (ii) Membership Units; (iii) right to inspect the Company's
books and records; and (iv) right to participate in the management of and vote on matters coming
before the Company.
"Minimum Gain" has the meaning set forth in Regulation Section 1.704-2(d). Minimum
Gain shall be computed separately for each Interest Holder in a manner consistent with the
Regulations under Code Section 704(b).
"Negative Capital Account" means a Capital Account with a balance of less than zero.
"Person" means and includes any individual, corporation, partnership, association, limited
liability company,trust, estate,or other entity.
"Positive Capital Account" means a Capital Account with a balance greater than zero.
"Profit" and"Loss"means, for each taxable year of the Company(or other period for which
Profit or Loss must be computed)the Company's taxable income and loss determined in accordance
with Code Section 703(a),with the following adjustments:
(i) all items of income, gain, loss, deduction, or credit required to be stated separately
pursuant to Code Section 703(a)(1)shall be included in computing taxable income or loss;
(ii) any tax-exempt income of the Company, not otherwise taken into account in
computing Profit or Loss, shall be included in computing taxable income or loss;
(iii) any expenditures of the Company described in code Section 705(a)(2)(B)(or treated as
such pursuant to Regulation Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into
account in computing Profit or Loss, shall be subtracted from taxable income or loss;
(iv) gain or loss resulting from any taxable disposition of Company property shall be
computed by reference to the adjusted book value of the property disposed of,
notwithstanding the fact that the adjusted book value differs from the adjusted basis of the
property for federal income tax purposes;
(v) in lieu of the depreciation, amortization, or cost recovery deductions allowable in
computing taxable income or loss, there shall be taken into account the depreciation
computed based upon the adjusted book value of the asset; and
(vi) notwithstanding any other provision of this definition, any items which are specially
allocated pursuant to Section 4.3 hereof shall not be taken into account in computing Profit
or Loss.
"Regulation" means the income tax regulation, including any temporary regulations, from
time to time promulgated under the Code.
"Resignation" means a Member's dissociation with the Company by means other than by a
Transfer or an Involuntary Withdrawal.
6
Section II
Formation and Name: Office; Purpose; Term
2.1 Organization. The parties hereby organize a limited liability company pursuant to the
Act and the provisions of this Declaration and, for that purpose, have caused Articles of
Organization to be prepared, executed and filed for record with the CSOS on November 12, 1997.
2.2 Name of the Company. The name of the company shall be "Mildred Mae Sarchet,
LLC". The Company may do business under that name and under any other name or names upon
which the Members agree. If the Company does business under a name other than that set forth in
its Articles of Organization,then the Company shall file a trade name certificate as required by law.
2.3 Purpose. The Company is organized to own, manage, sell and lease property in
Colorado and to do all things necessary, convenient, or incidental to that purpose. An additional
purpose is to centralize farm management.
2.4 Term. The term of the Company shall begin upon the execution of this Declaration and
shall continue in existence until terminated pursuant to section VII of this Declaration.
2.5 Principal Place of Business. The principal office of the Company in the State of
Colorado shall be located at 325 Crestridge Lane, Longmont, CO 80501 or at any other place
which the Manager shall designate.
2.6 Registered Agent. The name and address of the Company's registered agent in the
State of Colorado shall be Thomas L. Stover, c/o Flanders Stover Elsberg LLP, Longmont, CO
80501,or such other person and address as the Manager shall designate.
2.7 Members. The name, present mailing address, taxpayer identification number, and
Membership Units of each Member are set forth on Exhibit A.
Section III •
Members; Capital; Capital Accounts
3.1 Initial Capital Contributions. The Members have contributed to the Company the
property respectively set forth on Exhibit B.
3.2 Membership Units. The initial capital of the Company was divided into 10,000 equal
parts,hereinafter referred to as"Membership Units".
3.3 Allocation of Membership Units. In exchange for the initial Member's capital
contribution,the initial Member of the Company received all of the Membership Units.
3.4 No Other Capital Contributions Required. No Member shall be required to contribute
any additional capital to the Company,and except as set forth in the Act,no Member shall have any
personal liability for any obligations of the Company.
3.5 No Interest on Capital Contributions. Interest Holders shall not be paid interest on
their Capital Contributions.
3.6 Return of Capital Contributions. Except as otherwise provided in this Declaration, no
Interest Holder shall have the right to receive the return of any Capital Contribution.
7
3.7 Form of Return of Capital. If an Interest Holder is entitled to receive a return of a
Capital Contribution, the Company may distribute cash, notes, property or an combination thereof
to the Interest Holder in return of the Capital Contribution.
3.8 Capital Accounts. A separate Capital Account shall be maintained for each Interest
Holder.
3.9 Loans. Any Member may, at any time, make or cause a loan to be made to the
Company in any amount and on those terms upon which the Company and the Member agree.
Section IV
Profit,Loss and Distributions
4.1 Distributions of Cash Flow. Cash Flow for each taxable year of the Company shall be
distributed to the Interest Holders in proportion to their Membership Units no later than seventy-
five(75)days after the end of the taxable year.
4.2 Allocation of Profit or Loss. After giving effect to the special allocations set forth in
Section 4.3 for any taxable year of the Company, Profit or Loss shall be allocated to the Interest
Holders in proportion to their Membership Units.
4.3 Regulatory Allocations.
4.3.1 Qualified Income Offset. No Interest Holder shall be allocated Losses or
deductions if the allocation causes an Interest Holder to have an Adjusted Capital Account
Deficit. If an Interest Holder receives (1) an allocation of Loss or deduction (or item
thereof) or (2) any distribution, which causes the Interest Holder to have an Adjusted
Capital Account Deficit at the end of any taxable year,then all items of income and gain of
the Company (consisting of a prorata portion of each item of Company income, including
gross income and gain) for that taxable year shall be allocated to that Interest Holder,
before any other allocation is made of Company items for that taxable year, in the amount
an in proportions required to eliminate the excess as quickly as possible. This Section 4.3.1
is intended to comply with, and shall be interpreted consistently with, the "qualified income
offset"provisions of the Regulations promulgated under Code Section 704(b).
•
4.3.2 Minimum Gain Chargeback. Except as set forth in Regulation Section
1.704-2(f)(2), (3), and (4), if, during any taxable year, there is a net decrease in Minimum
Gain,each Interest Holder,prior to any other allocation pursuant to this Section IV, shall be
specially allocated items of gross income and gain for such taxable year(and, if necessary,
subsequent taxable years) in an amount equal to that Interest Holder's share of the net
decrease of Minimum Gain, computed in accordance with Regulation Section 1.704-
2(g)(2). Allocations of gross income and gain pursuant to this Section 4.3.2 shall be made
first from gain recognized from the disposition of Company assets subject to nonrecourse
liabilities (within the meaning of the Regulations promulgated under Code Section 752), to
the extent of the Minimum Gain attributable to those assets, and thereafter, from a pro rata
portion of the Company's other items of income and gain for the taxable year. It is the
intent of the parties hereto that any allocation pursuant to this Section 4.3.2 shall constitute
a minimum gain chargeback under Regulation Section 1.704-2(f). •
8
4.3.3 Contributed Property and Book-Ups. In accordance with Code Section
704(c) and the Regulations thereunder, as well as Regulation Section 1.704-
1(b)(2)(iv)(d)(3), income, gain, loss, and deductions with respect to any property
contributed (or deemed contributed) to the Company shall, solely for tax purposes, be
allocated among the Interest Holders so as to take account of any variation between the
adjusted basis of the property to the Company for federal income tax purposes and its fair
market value at the date of contribution (or deemed contribution). If the adjusted book
value of any Company asset is adjusted as provided herein, subsequent allocations of
income, gain, loss, and deductions with respect to the asset shall take account of any
variation between the adjusted basis of the asset for federal income tax purposes and its
adjusted book value in the manner required under Code Section 704(c) and the Regulations
thereunder.
4.4 Liquidation and Dissolution.
4.4.1 If the Company is liquidated, the assets of the Company shall be distributed
to the Interest Holders in accordance with the balances in their respective Capital Accounts,
after taking into account the allocations of Profit or Loss pursuant to Section 4.2,if any,and
distributions, if any,of cash or property, if any,pursuant to Section 4.1.
4.4.2 No Interest Holder shall be obligated to restore a Negative Capital Account.
4.5 General.
4.5.1 Except as otherwise provided in this Declaration, the timing and amount of
all distributions shall be determined by the Members.
4.5.2 If any assets of the Company are distributed in kind to the Interest Holders,
those assets shall be valued on the basis of their fair market value, and any Interest Holder
entitled to any interest in those assets shall receive that interest as a tenant-in-common with
all other Interest Holders so entitled. Unless the Members otherwise agree, the fair market
value of the assets shall be determined by an independent appraiser who shall be selected
by the Members. The Profit or Loss for each unsold asset shall be determined as if the
asset had been sold at its fair market value, and the Profit or Loss shall be allocated as
provided in Section 4.2 and shall be properly credited or charged to the Capital Accounts of
the Interest Holders prior to the distribution of the assets in liquidation pursuant to Section
4.4.
4.5.3 All Profit and Loss shall be allocated, and all distributions shall be made to
the Persons shown on the records of the Company to have been Interest Holders as of the
last day of the taxable year for which the allocation or distribution is to be made.
Notwithstanding the foregoing, unless the Company's taxable year is separated into
segments, if there is a Transfer or an Involuntary Withdrawal during the taxable year, the
Profit and Loss shall be allocated between the original Interest Holder and the successor on
the basis of the number of days each was an Interest Holder during the taxable year;
provided, however, the Company's taxable year shall be segregated into two or more
segments in order to account for Profit, Loss, or proceeds attributable to a Capital
Transaction or to any other extraordinary nonrecurring items of the Company.
x--
4.5.4 The Members are hereby authorized, upon the advice of the Company's tax
counsel, to amend this Article IV to comply with the Code and the Regulations
9
promulgated under Code Section 704(b); provided, however, that no amendment shall
materially affect distributions to an Interest Holder without the Interest Holder's prior
written consent.
Section V
Management: Rights,Powers and Duties
5.1 Management. The Company shall be managed by a Manager, who may, but need
no;be a Member. Robert A. Sarchet is hereby designated to serve as the Manager until replaced b
a vote of the members in accordance with this Section. y
5.1.1 The Manager shall have full, exclusive, and complete discretion, power,
and authority, subject in all cases to the other provisions of this instrument and the
requirements of applicable law, to manage, control, administer,and operate the business and
affairs of the Company for the purposes herein stated, and to make all decisions affecting
such business,including, without limitation, for Company purposes,the power and authority
to:
a. acquire by purchase, lease, or otherwise, any real or personal property,
tangible or intangible;
b. construct, operate, maintain, finance, and improve, and to own, sell,
convey, assign, mortgage, or lease any real estate and any personal
property;
c. sell, dispose, trade, or exchange Company assets in the ordinary course of
the Company's business;
d. enter into agreements and contracts and to give receipts, releases and
discharges;
e. borrow money for and on behalf of the Company, and, in connection
therewith, execute and deliver instruments authorizing the confession of
judgment against the Company;
f execute and deliver, for and on behalf of the Company, any and all
documents and instruments which may be necessary or desirable to carry
on the business of the Company, including, without limitation, any and all
deeds, contracts, leases, mortgages, deeds of trust, promissory notes,
security agreements, and financing statements pertaining to the Company's
assets or obligations;
g. purchase liability and other insurance to protect the Company's properties
and business;
h. execute or modify leases with respect to any part or all of the assets of the
Company;
i. prepay, in whole or in part, refinance, amend, modify, or extend any
mortgages or deeds of trust which may affect any asset of the Company and
10
in connection therewith to execute for and on behalf of the Company any
extensions,renewals or modifications of such mortgages or deeds of trust;
j. execute any and all other instruments and documents which may be
necessary or in the opinion of a Manager desirable to carry out the intent
and purpose of this instrument, including, but not limited to, documents
whose operation and effect extend beyond the term of the Company;
k. make any and all expenditures which the Manager, in his or her sole
discretion, deems necessary or appropriate in connection with the
management of the affairs of the company and the carrying out of its
obligations and responsibilities under this instrument, including, without
limitation, all legal, accounting and other related expenses incurred in
connection with the organization, financing and operation of the Company;
1. enter into any kind of activity necessary to,in connection with,or incidental
to,the accomplishment of the purposes of the Company;and
m. invest and reinvest Company reserves in short-term instruments or money
market funds.
No person dealing with the Manager need inquire into the validity or propriety of any
document or instrument executed in the name of the Company by the Manager, or as to the
authority of the Manager in executing the same.
5.1.2 In exercising the foregoing powers, the Manager shall perform such duties
in good faith, in a manner the Manager reasonably believes to be in the best interests of the
Company and with such care as an ordinarily prudent person in a like position would use
under similar circumstances.
5.1.3 In exercising these powers,the Manager shall not be liable to the Company
or to any Interest Holder for any actions taken in good faith and reasonably believed to be in
the best interests of the Company. The Company shall, to the full extent permitted by
Colorado law, indemnify the Manager against all liability and expense (including attorneys'
fees) incurred by reason of any act performed by the Manager within.the scope of the
authority conferred on the Manager by this instrument, except for the Manager's negligence,
willful misconduct and/or gross negligence.
5.1.4 Notwithstanding anything to the contrary in this instrument, the Manager
shall not undertake any of the following without the approval of all of the Members:
a. the admission of additional Members to the Company; and
b. the Company's engaging in business in any jurisdiction which does not
provide for the registration of limited liability companies.
5.2 Meetings of and Voting by Members.
5.2.1 A meeting of the Members may be called at any time by those Members
holding at least ten percent (10%) of the Membership Units then held by Members.
11
Meetings of Members shall be held at the Company's principal place of business or at any
other place designated by the Persons calling the meeting. Not less than ten (10)nor more
than fifty (50) days before each meeting, the Persons calling the meeting shall give written
notice of the meeting to each Member entitled to vote at the meeting. The notice shall state
the time, place, and purpose of the meeting. Notwithstanding the foregoing provisions,
each Member who is entitled to notice waives notice if before or after the meeting the
Member signs a waiver of the notice which is filed with the records of the Members'
meetings, or is present at the meeting in person or by proxy and fails to object to the lack of
notice. A Member may vote either in person or by written proxy signed by the Member or
by the Member's duly authorized attorney-in-fact.
5.2.2 An annual meeting shall be held on the first Monday of December of each
year at 10:00 A.M.. Notice shall be given to the Members in accordance with Section
5.2.1.
5.2.3 At any meeting of the Members, the presence (in person or represented by
proxy) of the Members owning a majority of the Membership Units entitled to vote shall
constitute a quorum. If a quorum is present, the affirmative vote of a majority of the
Membership Units represented at the meeting and entitled to vote shall be the act of the
Members,unless the vote of a greater proportion or number is required by this instrument. If
a quorum is not represented at any meeting of the Members,the meeting may be adjourned
for a period not to exceed 60 days at any one adjournment. At the adjourned meeting at
which a quorum shall be present, any business may be transacted which might have been
transacted at the meeting as originally notified. The Members present at a duly organized
meeting may continue to transact business until adjournment, notwithstanding the
withdrawal of enough Members tc leave less than a quorum.
5.2.4 Any action required or permitted to be taken at a meeting of the Members
may be taken without a meeting if the action is evidenced by one or more written consents
describing the action taken, signed by each Member. The written consent of the Members
has the same force and effect as a unanimous vote of the Members.
5.3 Personal Services. No Member shall be required to perform services for the Company
solely by virtue of being a Member. Unless approved by the Members,no Member shall be entitled
to compensation for services performed for the Company. However, upon substantiation of the
amount and purpose thereof, the Members shall be entitled to reimbursement for expenses
reasonably incurred in connection with the activities of the Company.
5.4 Duties of Members.
5.4.1 Except as otherwise expressly provided in Section 5.4.2, nothing in this
Declaration shall be deemed to restrict in any way the rights of any Member, or of any
Affiliate of any Member, to conduct any other business or activity whatsoever, and no
Member shall be accountable to the Company or to any other Member with respect to that
business or activity even if the business or activity competes with the Company's business.
The organization of the company shall be without prejudice to the Members' respective
rights (or the rights of their respective Affiliates) to maintain, expand, or diversify such
other interests and activities and to receive and enjoy profits or compensation therefrom.
Each Member waives any rights the Member might otherwise have to share or participate
in such other interests or activities of any other Member or the Member's Affiliates.
12
5.4.2 Each Member understands and acknowledges that the conduct of the
Company's business may involve business dealings and undertakings with Members and
their Affiliates. In any of those cases, those dealings and undertakings shall be at arm's
length and on commercially reasonable terms.
5.5 Liability and Indemnification.
5.5.1 A Member shall not be liable, responsible, or accountable, in damages or
otherwise, to any Member or to the Company for any action taken or any failure to take an
action by the Member with respect to the Company matters, except for actions or omissions
constituting fraud, gross negligence, or an intentional breach of this Declaration or
applicable law.
5.5.2 The Company shall indemnify each Member for any act performed or
omitted by the Member with respect to Company matters, except for actions or omissions
constituting fraud, gross negligence, or an intentional breach of this Declaration or
applicable law.
Section VI
Transfer of Interests and Withdrawals of Members
6.1 Transfer of Interests.
6.1.1 Restriction of Transfers. No Member or Interest Holder shall encumber, sell,
^ exchange, gift, devise, assign, dispose of, or otherwise transfer, whether voluntarily, or
involuntarily, or by operation of law including transfers pursuant to any judicial order, all
or any portion of their Membership Units,except as provided in this Declaration.
6.1.2 Transfers of Units. Any Member or Interest Holder may transfer all or any
portion of their Membership Units by gift, sale, devise, or other transfer, to or for the
benefit of any other Member, the issue of any Member,or any affiliate of a Member.
6.1.3 Lifetime Transfers. Except as otherwise provided in Paragraph 6.1.2 hereof,
prior to any sale, exchange or other transfer as set forth in Paragraph 6.1.1 hereof by a
Member or an Interest Holder of all or any portion of their Membership Units during the
Member or Interest Holder's lifetime, the Member or Interest Holder must first obtain the
written consent of the other Members.
6.1.3.1 In the absence of such consent, the Member or Interest Holder
shall give the other Members written notice of such desire to transfer specifying the
Membership Units the Member or Interest Holder desires to transfer. The other
Members shall have the exclusive right to purchase such Membership Units or any
portion thereof for a period of sixty(60) days after the receipt of such notice at the
price determined in accordance with Paragraph 6.4 hereof and upon terms set forth
in Paragraph 6.5. The right of said other Members to purchase such Membership
Units offered shall be in the percentage their respective Membership Units in the
Company bear to all the outstanding Membership Units of the Company, exclusive
of the Membership Units owned by the selling Member or Interest Holder and any
transferees of Membership Units who have not been admitted as Members, and
such percentage shall be the percentage of the offered Membership Units which
they respectively shall be entitled to purchase. If any Member fails to exercise his
13
right to purchase Membership Units or any portion thereof within that sixty (60)
days, the remaining Members shall have an additional ten (10) days in which to
purchase the Membership Units or any portion thereof covered by such right, upon
the same terms. The above rights shall be exercised by giving written notice
thereof to the selling Member or Interest Holder and to all other Members.
6.1.3.2 To the extent the other Members do not purchase the Membership
Units as provided herein, the withdrawing Member shall have the right to sell,
exchange, or otherwise transfer such Membership Units to any person during the
sixty (60) day period immediately following expiration of the rights herein
provided. If no such sale, exchange, or transfer is completed within said period,
the restrictions and rights herein provided shall be restored and shall continue in
full force and effect.
6.2 Resignation. No Member shall have the right or power to Resign from the Company,
•
except as otherwise provided by this Declaration.
6.3 Optional Buy-out in Event of Involuntary Withdrawal.
6.3.1 Unless the Members elect to dissolve the Company after an Involuntary
Withdrawal or the occurrence of any other event which terminates the continued
membership of a member in the company pursuant to Paragraph 7.1.2, the withdrawn
Member shall be deemed to offer for sale (the "Withdrawal Offer") to the Company all of
the Membership Rights owned of record and beneficially by the withdrawn Member (the
"Withdrawal Interest")."
6.3.2 The Withdrawal Offer shall be and remain irrevocable for a period (the
"Withdrawal Offer Period") of sixty (60) days following the date the Members elect to
continue the company. At any time during the Withdrawal Offer Period, the company may
accept the Withdrawal Offer by notifying the withdrawn Member (the "Withdrawal
Notice") of its acceptance. The withdrawn Member shall not be deemed a Member or
Manager for the purpose of the vote on whether the Company shall accept the Withdrawal
Offer.
6.3.3 If the Company accepts the Withdrawal Offer, the Withdrawal Note shall fix
a closing date (the "Withdrawal Closing Date") for the purchase which shall be not earlier
than ten (10) nor later than sixty (60) days after the expiration of the Withdrawal Period,
except that the effective date of transfer for all transfers where the withdrawn Member is
deceased shall be the date of such Member's death,even though settlement occurs later.
6.3.4 If the Company accepts the Withdrawal Offer, the Company shall purchase
the Withdrawal Interest for a price determined in accordance with Paragraph 6.4 (the
"Withdrawal Purchase Price"),on the terms set forth in Paragraph 6.5.
6.3.5 If the Company fails to accept the Withdrawal Offer, then the withdrawn
Member or the withdrawn Member's successor, as the case may be, upon the expiration of
the Withdrawal offer Period, thereafter shall be treated as the unadmitted assignee of a
Member.
6.4 Purchase Price. The price paid for the Membership Units or Withdrawal Interest
under the terms of this Declaration shall be determined by the accountant then regularly employed
14
by the Company in the manner provided in this paragraph. The purchase price shall be a price
equal to the fair market value of the Membership Units being purchased determined as of the
applicable date. The applicable date shall be either the date of exercise of any Member or Interest
Holder's right to purchase Membership Units as provided under Paragraph 6.1.3 hereof, or the
withdrawal closing date as provided under Paragraph 6.3.3 hereof, as the case may be. The
determination of fair market value shall be made in accordance with sound accounting practices and
principles and shall be based on currently acceptable valuation techniques.
6.5 Terms of Payment.
6.5.1 Unless other payment terms are agreed upon, the purchase price shall be paid
by the purchaser's good and sufficient promissory note payable to the selling Member or
Interest Holder or the personal representative of the estate of a deceased Member or Interest
Holder. The note shall bear interest at the higher of one-hundred percent (100%) of the
applicable federal rate or nine percent (9%) per annum. Principal and interest amounts
shall be paid in five (5) equal, annual, consecutive installments commencing one (1) year
after date of the note. Prepayment in full or in part shall be permitted at any time. The note
shall be secured by a collateral security agreement granting the seller security interests in
the Membership Units being purchased.
6.5.2 The Members or Interest Holders and the personal representative of the
estate of a deceased Member or Interest Holder shall do all things and execute and deliver
an documents and legal instruments necessary or desirable to carry out the provisions of
this Declaration.
6.6 Transfers Pursuant to Judicial Order. The voluntary or involuntary transfer of any
Membership Units pursuant to any judicial order, whether resulting from or being involved in a
bankruptcy proceeding, divorce proceeding, execution, attachment, legal process, enforcement of a
pledge, trust or encumbrance, or sale under any of them, shall be subject to this Declaration; and
any purchaser or transferee of any Membership Units pursuant to any such order shall make an offer
to the Company to sell within thirty(30) days after the purchase by said purchaser or transferee or
order of transfer to said purchaser or transferee is made. Except as otherwise provided in this
Paragraph 6.6, such offer shall be made in the manner and in accordance with the terms of
Paragraphs 6.1.3, 6.3, 6.4 and 6.5 above.
6.7 Admission of Transferee as Member. No Membership Units held by an Interest Holder
shall be entitled to vote unless such Interest Holder is a Member. All Membership Units held by
Members are entitled to vote. An Interest Holder who is not a Member shall be admitted as a
Member only upon the unanimous consent of the Members. All Interest Holders shall be bound by
the terms and conditions of this instrument.
6.8 Admission of Members upon Consent of Interest Holders. If at any time there are
no Members, Interest Holders owning a majority of the Membership Units may elect, by written
agreement, one or more Interest Holders to be admitted as Members.
Section VII
Dissolution,Liquidation and Termination of the Company
7.1 Events of Dissolution. The Company shall be dissolved upon the happening of any of
the following events:
15
7.1.1 upon the unanimous written agreement of the Members; or
7.1.2 upon the written consent of a majority of the Members within ninety days
after an event of Involuntary Withdrawal of a Member or the occurrence of any other event
which terminates the continued membership of a Member in the Company.
7.2 Procedure for Winding Up. If the Company is dissolved,the remaining Members shall
wind up its affairs. On winding up on the Company,the assets of the Company shall be distributed,
first,to creditors of the Company, including Interest Holders who are creditors,in satisfaction of the
liabilities of the Company; then to Interest Holders in satisfaction of any distributions of Cash Flow
or Capital Proceeds; and then to the Interest Holders in proportion to their respective Capital
Accounts pursuant to Section 4.4.
7.3 Filing of Statement of Intent to Dissolve and Articles of Dissolution. If the Company is
dissolved pursuant to Section 7.1, the Members shall promptly execute and file a Statement of
Intent to Dissolve with the CSOS. After the affairs of the Company are wound up pursuant to
Section 7.2,the Members shall promptly execute and file Articles of Dissolution with the CSOS. If
there are no remaining Members, the Articles shall be filed by the last Person to be a Member; if
there are no remaining Members, or a Person who last was a Member, the Articles shall be filed by
the legal or personal representative of the Person who last was a Member.
Section VIII
Books,Records,Accounting,and Tax Elections
8.1 Bank Accounts. All funds of the Company shall be deposited in a bank account or
accounts maintained in the Company's name. The Members shall determine the institution or
institutions at which the accounts will be opened and maintained, the types of accounts, and the
Persons who will have authority with respect to the accounts and the funds therein.
8.2 Books and Records. The Members shall keep or cause to be kept complete and
accurate books and records of the Company and supporting documentation of transactions with
respect to the conduct of the Company's business. The books and records shall be maintained in
accordance with sound accounting practices and shall be available at the Company's registered
office for inspection and copying at the reasonable request, and at the expense, of any member
during ordinary business hours. Without limiting any of the foregoing, the Members shall keep or
cause to be kept at the registered office the following:
8.2.1 A current list of the full name and last known business,residence,or mailing
address of each Member;
8.2.2 A copy of the articles of organization and all amendments thereto, together
with executed copies of any powers of attorney pursuant to which any amendment has been
executed;
8.2.3 Copies of the Company's federal, state, and local income tax returns and
reports, if any, for the three most recent years;
8.2.4 Copies of any currently effective Declaration, copies of any writings
regarding contributions of members or members' liability therefor, and copies of any
financial statements of the Company for the three most recent years;
16
8.2.5 Minutes of every annual and special meeting of the Members;
8.2.6 Any written consents obtained from Members acting in lieu of a meeting.
8.3 Annual Accounting Period. The annual accounting period of the Company shall be its
taxable year. The Company's taxable year shall be selected by the Members, subject to the
requirements and limitations of the Code.
8.4 Reports. Within seventy-five (75) days after the end of each taxable year of the
Company,the Members shall cause to be sent to each Person who was a Member at any time during
the taxable year then ended a complete accounting of the affairs of the Company for the taxable
year then ended. In addition,within seventy-five (75)days after the end of each taxable year of the
Company, the Members shall cause to be sent to each Persona who was an Interest Holder at any
time during the taxable year then ended, that tax information concerning the Company which is
necessary for preparing the Interest Holder's income tax returns for that year. At the request of any
Member, and at the Member's expense, the Members shall cause an audit of the Company's books
and records to be prepared by independent accountants for the period requested by the Member.
Section IX
General Provisions
9.1 Assurances. Each Member shall execute all such certificates and other documents and
shall do all such filing, recording, publishing and other acts as the Members deem appropriate to
comply with the requirements of law for the formation and operation of the Company and to
comply with any laws,rules,and regulations relating to the acquisition, operation, or holding of the
property of the Company.
9.2 Notifications. My notice, demand, consent, election, offer, approval, request, or other
communication (collectively a "notice") required or permitted under this Declaration must be in
writing and either delivered personally or sent by certified or registered mail, postage prepaid,
return receipt requested. A notice must be addressed to an Interest Holder at the Interest Holder's
last known address on the records of the Company. A notice to the Company must be addressed to
the Company's principal office. A notice delivered personally will be deemed given only when
acknowledged in writing by the person to whom it is delivered. A notice that is sent by mail will be
deemed given three(3)business days after it is mailed. My party may designate,by notice to all of
the others, substitute addresses or addressees for notices; and, thereafter, notices are to be directed
to those substitute addresses or addressees.
9.3 Specific Performance. The parties recognize that irreparable injury will result from a
breach of any provision of this Declaration and that money damages will be inadequate to fully
remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of the
provisions of this Declaration, any party who may be injured (in addition to any other remedies
which may be available to that party) shall be entitled to one or more preliminary or permanent
orders (i) restraining and enjoining any act which would constitute a breach or (ii) compelling the
performance of any obligation which, if not performed,would constitute a breach.
9.4 Complete Declaration. This Declaration constitutes the complete and exclusive
statement of the agreement among the Members. It supersedes all prior written and oral statement,
agreements or understandings including any prior representation, statement, condition, or warranty.
Except as expressly provided otherwise herein, this Declaration may not be amended without the
written consent of all of the Members.
17
9.5 Applicable Law. All questions concerning the construction, validity, and interpretation
of this Declaration and the performance of the obligations imposed by this Declaration shall be
governed by the internal law,not the law relating to conflicts of laws,of the state of Colorado.
9.6 Section Titles. The headings herein are inserted as a matter of convenience only, and
do not define,limit, or describe the scope of this Declaration or the intent of the provisions hereof.
9.7 Binding Provisions. This Declaration is binding upon, and inures to the benefit of, the
parties hereto and their respective heirs, executors, administrators, personal and legal
representatives, successors,and permitted assigns.
9.8 Jurisdiction and Venue. My suit involving any dispute or matter arising under this
Declaration may only be brought in the United States District Court for the District of Colorado or
any Colorado State Court having jurisdiction over the subject matter of the dispute or matter. All
Members hereby consent to the exercise of personal jurisdiction by any such court with respect to
any such proceeding.
9.9 Terms. Common nouns and pronouns shall be deemed to refer to the masculine,
feminine,neuter, singular and plural,as the identity of the Persona may in the context require.
9.10 Separability of Provisions. Each provision of this Declaration shall be considered
separable; and if, for any reason, any provision or provisions herein are determined to be invalid
and contrary to any existing or future law, such invalidity shall not impair the operation of or affect
those portions of this Declaration which are valid.
9.11 Counterparts. This Declaration may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original and all of which, when taken together,
constitute one and the same document. The signature of any party to any counterpart shall be
deemed a signature to,and may be appended to,any other counterpart.
IN WITNESS WHEREOF, the sole member has executed this Declaration effective the
date set forth above.
MEMBER:
Mildred M. Sarchet
r
18
EXHIBIT A
MILDRED MAE SARCHET,LLC
OPERATING DECLARATION
List of Initial Members, Capital,Percentages,and Membership Units
Membership
Name,Address and Interest Membership
Taxpayer I.D.Number Initial Contribution Percentages Units
Mildred M. Sarchet All of Grantor's interest 100% 10,000
300 Crestridge Lane in certain real property
Longmont, CO 80501 located in Weld County,
SSN: 522-50-0100 Colorado, described more
particularly on the attached
Exhibit B.
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EXHIBIT B
MILDRED MAE SARCHET,LLC
OPERATING DECLARATION
Legal Description
The North Half of the Northwest Quarter(N1/2NW 1/4) of Section Thirty-five (35), in
Township 3 North, of Range 67 West of the 6th P.M., Weld County, Colorado, together with
all ditch and water rights in any way connected with or appertaining to said property, including
80 shares of the capital stock of The Lupton Meadows Ditch Company, irrigation well, all
improvements, articles of plumbing, electricity and water pressure system,
RESERVING, however,to the Grantor, her successors and assigns, all minerals other
than sand and gravel, but including all oil, gas and other hydrocarbons owned by the Grantor
that may be produced from the above described property; together with the right of ingress
and egress to the property for the purpose of mining, drilling, and exploring, construction,
maintenance, and use of roads, pipelines, and production facilities; and together with the right
to grant mineral development leases and to receive any share of rents, royalties, bonus
payments, or similar sums that might be payable under the terms of any mineral development
lease.
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