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Home My WebLink About20031224.tiff RESOLUTION RE: APPROVE TWO IMPROVEMENTS AGREEMENTS ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS (PRIVATE AND PUBLIC ROAD MAINTENANCE), AUTHORIZE CHAIR TO SIGN, AND ACCEPT COLLATERAL FOR PLANNED UNIT DEVELOPMENT FINAL PLAN, PF#568,THE SUMMIT AT MOUNTAIN VIEW - DNS DEVELOPMENT, LLC CIO DAVID DALGLISH WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, on November 15, 2002, the Department of Planning Services staff approved a Planned Unit Development Final Plan, PF#568, The Summit at Mountain View, for DNS Development, LLC, c/o David Dalglish, 6025 Fox Hill Drive, Longmont, Colorado 80501, for a Planned Unit Development Final Plan for seven E(Estate)Zone lots on the following described real estate, to-wit: Lot B of Recorded Exemption #2196, being part of the E1/2 of Section 5, Township 1 North, Range 68 West of 6th P.M., Weld County, Colorado WHEREAS,pursuant to certain Conditions of Approval,the Board has been presented with two Improvements Agreements According to Policy Regarding Collateral for Improvements(Private and Public Road Maintenance)between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and DNS Development, LLC, with terms and conditions being as stated in said agreements, and WHEREAS,the Board has been presented with two Irrevocable Letters of Credit,#8027471 and#8027463,from First Bank of Longmont, 1707 North Main Street, Longmont, Colorado 80501, in the amount of$15,000.00 and $157,579.00, respectively, and WHEREAS, after review, the Board deems it advisable to approve said agreements and accept said Letters of Credit as stated above,copies of which are attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County,Colorado,that the two Improvements Agreements According to Policy Regarding Collateral for Improvements (Private and Public Road Maintenance) between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, and DNS Development, LLC, be, and hereby are, approved. BE IT FURTHER RESOLVED that two Irrevocable Letters of Credit, #8027471 and #8027463, from First Bank of Longmont, 1707 North Main Street, Longmont, Colorado 80501, in the amount of$15,000.00 and $157,579.00, respectively, be and hereby are, accepted. 2003-1224 PL1596 �o : R ✓ k) , PPG , FZ IMPROVEMENTS AGREEMENT - DNS DEVELOPMENT, LLC PAGE 2 The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 14th day of May, A.D., 2003. BOARD OF COUNTY COMMISSIONERS D COUNTY, COLORADO Cn ATTEST: fa",I V1f ( . i≥ 'd E. Long, Chair Weld County Clerk to t . , ,"3 A Robert D. s en, r Tem BY: Deputy Clerk to the oard`` . J. Geile APPR ED AS TO FORM: i /� -24i William H. Jerk A J !ii ounty Attorney (/�� Glenn Vaad Date of signature: 549' 2003-1224 PL1596 MEMORANDUM 'ilk To: Board of County Commissioners May 5, 2003 COLORADO From: Chris Gathman, Planner II -AICP Subject: Acceptance of Collateral in the form of Irrevocable Letters of Credit The Department of Planning Services received two irrevocable letters of credit for collateral for the (Public Road Maintenance) and (Private Road Maintenance) improvements agreement for PF-568 (The Summit at Mountain View). After review of the letters by the Weld County Attorney, the Department of Public Works and the Department of Planning Services, it has been determined that the amount of the agreements will be sufficient to complete the work required for PF-568 (Final Plat for Summit at Mountain View), and the Department of Planning Services recommends acceptance of this Letter. SERVICE,TEAMWORK,INTEGRITY,QUALITY 2003-1224 ['L 11.1.BANt !: BENEFICIARY Board Of County Commissioners Weld County ATTN:Clerk To The Board IRREVOCABLE LETTER OF FirstBank CREDIT Longmonti CO 80501 (303)772-5500 LENDER" ADDRESS PO Box 758 Greeley, CO 80632 NO.: 8027471 TELEPHONE NO. ;IDENTIFICATION NO. CUSTOMER EXPIRATION DATE Elizabeth ,7. Scholten Robert D. Scholten This Letter of Credit shall expire upon the earlier of: David G. Dalglish Karla I. Dalglish 1. the close of business on Robert D. Niemeyer April 04, 2004 and all drafts and accompanying statementsor documents ADDRESS must be presented to Lender on or before that time; or 5036 Fox Hill Drive 2. the day that Lender honors a draw under which the full Longmont, CO 80501 TELEPHONE No. IDENTIFICATION No. amount of this Letter of Credit has been drawn. (303) 772-7478 Lender hereby establishes at the request and for the account of Customer,an Irrevocable Letter of Credit in favor of Beneficiary for a sum of Fifteen Thousand and no/100 Dollars ($ 15,000.00 ), These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or such other address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNINGTO BENEFICIARY:PLEASEEXAMINETHIS LETTEROF CREDIT AT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS,EITHER SINGLY OR TOGETHER,YOU SHOULD CONTACT THE CUSTOMERIMMEDIATELYTO SEE IF THE LETTER OF CREDITCAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTER OF CREDIT FOR FAILURETO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. 1. DRAFT TERMS AND CONDITIONS Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: See attached Exhibit "A" incorporated herein by reference. Upon Lender's honor of such drafts, Lender shall be fully discharged of its obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. If a non-conforming demand is made, Lender shall notify Beneficiary of its dishonor on or before the time specified in Paragraph 5 below. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary,purporting to claim through Beneficiary,or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit,Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary,or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. 2. USE RESTRICTIONS All drafts must be marked "DRAWN UNDER FirstBank Of Longmont IRREVOCABLE LETTER OF CREDIT II 027471 April 04, 2003 ,"and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's Transferee(if this Letter of Credit is transferable)may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws 1d are permitted are not permitted under this Letter of Credit. Lender's honor of a partial draw shall correspondingly reduce the amount of credit available under this Letter of Credit. Following a nartial draw,Lender shall return this original Letter of Credit to Beneficiary with the partial draw noted hereon; in the alternative,and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s). 3. PERMITTED TRANSFEREES If checked,this Letter of Credit may be transferredby Beneficiary upon prior written notice to Lender of the transfer. The Transferee shall be deemed the new Beneficiary of this Letter of Credit and the documents of the Transferee,including drafts required under this Letter of Credit,will be processed by Lender(or any intermediary)without the original Beneficiary's intervention and without any further obligation of Lender to the original Beneficiary. ❑x If checked, the right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer(in its entirety,but not in part)by direct operation of law to the original Beneficiary's administrator,executor,bankruptcy trustee, receiver, liquidator, successor, or other representative at law; and B. The first immediate transfer(in its entirety,but not in part) by such legal representativeto a third party after express approval of a governmental body (judicial, administrative, or executive). MAST602©FomAtion Technologies, Inc. (9/3/96) (800)937-3799 4. TRANSFEREE'S REQUIRED DOCUMENTS When the presenter is a permitted Transferee under paragraph 3 above,the documents required for a draw shall include: A. All documents required elsewhere in this Letterof Credit,except that such documents may be in the name of and executed by either the original Beneficiary or the presenter permitted by paragraph 3; and B. When the presenter is a permitted Transfereeunder paragraph 3.A.or a third party under paragraph 3.B.,a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. 5. TIMING OF DISHONOR Lender may rely upon any reason for dishonor which it communicates to Beneficiary or the presenter within three(3)Banking Days after Lender has received the last document forming Beneficiary's presentment(the"Three-DayPeriod"). Lender shall be entitled to rely upon such reason without regard to either (i) the timing of any presentment made before the Expiration Date, or (ii) the timing inside the Three-DayPeriod of any preliminary communication(s)from Lender concerning the dishonor decision or any reason for dishonor. For any reason for dishonor given during the Three-Day Period, Lender shall be conclusively deemed to have met the "reasonable time", "without delay", and other timing requirements as the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No 500, as most recently published by the International Chamber of Commerce(the "UCP")may impose. The Expiration Date shall not be extended to accommodate a presentment made less than three(3) Banking Days before the Expiration Date, and Beneficiary shall not be entitled to submit a draw request or provide Lender with any documents in support of a draw after the Expiration Date. Lender shall not be required to communicate a dishonor decision or its reasons within a time less than the Three-Day Period. "Banking Day"means any day,except Saturday,on which commercial banks located in Colorado are open. 6. COMPLIANCE BURDEN Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary;and (ii)that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. 7. NON-SEVERABILITY If any aspect of this Letterof Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letterof Credit shall be deemed null and void ab initio, and both Lender and Beneficiary shall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non-severability provision shall override all other provisions in this Letter of Credit,no matter where such provision appears within this Letter of Credit. 8. CHOICE OF LAW/JURISDICTION This Letterof Credit is subject to the UCP. This Letter of Credit shall be governed by and construed in accordance with the laws of the State of Colorado , United States of America,except to the extent such laws are inconsistent with the UCP. Lender and Beneficiary consent to the jurisdiction and venue of any court selected by Lender in its discretion located in the State of Colorado in the event of any legal proceeding under this Letterof Credit. 9. EXPIRATION Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to the Lender on or before the Expiration Date. Dated: April 04, 2003 LENDER: F rstBank Of Longmont By: oe91N AAP nerd Ja N. Remmerde S or Vice President ENDORSEMENT OF DRAFTS DRAWN: Amount Amount Date Negotiated By In Words In Figures MAST6028©FomiAtion Technologies,Inc. (9/356) (800)937-3799 EXHIBIT "A" As to a Letter of Credit dated April 4, 2003 in the amount of $15,000.00 to the Board of County Commissioners Weld County from Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish' and Robert D. Niemeyer. 1. Each draft must bear upon its face the clause "Draw under Letter of Credit No. 802-7471, dated April 4, 2003, of FirstBank of Longmont" . Each draft must be accompanied by a statement by a duly authorized officer of the Board of County Commissioners for Weld County stating that this draw is in connection with funds needed for the account of Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish and Robert D. Niemeyer. The amount of each draft, which is negotiated pursuant to this credit, together with the date of negotiation, must be endorsed on the reverse side of this letter of credit. 2. This letter of credit is automatically extended without amendment, for additional one year periods from the current expiration or any future expiration date unless 60 days prior to such current expiration date FIRSTBANK OF LONGMONT notifies beneficiary in writing that the letter of credit will not be renewed. In the case you receive such a notification, you may draw by presentation of the following: (a) a draft at sight on FIRSTBANK OF LONGMONT; (b) a statement purportedly signed by an official of the Board of County Commissioners of Weld County, Colorado stating that we have received notice from FIRSTBANK OF LONGMONT the Letter of Credit No. 8027471 will not be renewed and that Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish, and Robert D. Niemeyer has failed to- provide proof of adequate collateral and substitution of this Letter of Credit No. 8027471 (c) copy of letter from FIRSBANK OF LONGMONT stating non-renewal of Letter of Credit No. 8027471 and the,, original letter of credit. 520 IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS (PRIVATE ROAD MAINTENANCE) THIS AGREEMENT,made and entered into this 1st day of April ,20 03,by and between the County of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called "County,"and DNS Development, LLC hereinafter called "Applicant." WITNESSETH: WHEREAS, Applicant is the owner of, or has a controlling interest in the following described property in the County of Weld, Colorado: Lot B of RE 2196, PT/E25-1-68W WHEREAS, a Final Subdivision/Planned Unit Development(PUD) plat of said property, to be knownas Summit at Mountain View has been submitted to the County for approval, and WHEREAS, relevant Sections of the Weld County Code provide that no Subdivision Final Plat, Planned Unit Development Final Plat, or Site Plan shall be approved by the County until the Applicant has submitted a Subdivision ImprovementAgreement guaranteeing the construction of the public improvements shown on plans,plats and supporting documents of the Subdivision Final Plat,Planned Unit Development Final Plat, or Site Plan, which improvements, along with a time schedule for completion, are listed in Exhibits "A"and"B" of this Agreement. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the acceptance and approval of said Final Plat, the parties hereto promise, covenant and agree as follows: 1.0 Engineering Services: Applicant shall furnish,at its own expense,all engineering services in connection with the design and construction of the Subdivision or Planned Unit Development improvements listed on Exhibit "A," which is attached hereto and incorporated herein by reference. 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. 1.2 The required engineering services shall consist of,but not be limited to, surveys, designs,plans and profiles,estimates,construction supervision,and the submission of necessary documents to the County. 1111111111111111111 JIll 111111 III 111111111111111 1 RRevised MS\AprivateZ2 wp M:\CTB\CTBFO 3067520 05/30/2003 11:23A Weld County, CO 1 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 1.3 Applicant shall furnish drawings and cost estimates for roads within the Subdivision or Planned Unit Development to the County for approval prior to the letting of any construction contract. Applicant shall furnish one set of reproducible "as-built" drawings and a final statement of construction cost to the County. 2.0 Rights-of-Way and Easements: Before commencing the construction of any improvements herein agreed upon,Applicant shall acquire,at its own expense,good and sufficient rights- of-way and easements on all lands and facilities traversed by the proposed improvements. 3.0 Construction: Applicant shall furnish and install, at its own expense, the Subdivision or Planned Unit Development improvements listed on Exhibit "A,"which is attached hereto and incorporated herein by reference, according to the construction schedule set out in Exhibit"B"which is also attached hereto and incorporated herein by reference. 3.1 Said construction shall be in strict conformance to the plans and drawings approved by the County and the specifications adopted by the County for such public improvements. Whenever a Subdivision or Planned Unit Development is proposed within three miles of an incorporated community located in Weld County or located in any adjacent county,the Applicant shall be required to install improvements in accordance with the requirements and standards that would exist if the plat were developed within the corporate limits of that community. If the incorporated community has not adopted such requirements and standards at the time the Subdivision or Planned Unit Development is proposed, the requirements and standards of the County shall be adhered to. If both the incorporated community and the County have requirements and standards,those requirements and standards that are more restrictive shall apply. 3.2 Applicant shall employ,at its own expense,a qualified testing company previously approved by the County to perform all testing of materials or construction that is required by the County; and shall furnish copies of test results to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work at Applicant's expense. Any material or work not conforming to the approved plans and specifications shall be removed and replaced to the satisfaction of the County at Applicant's expense. 3.4 Applicant shall furnish proof that proper arrangements have been made for the installation of sanitary sewer or septic systems, water, gas, electric and telephone services. 3.5 Said Subdivision or Planned Unit Development improvements shall be completed, according to the terms of this Agreement, within the construction schedule appearing in Exhibit"B." The Board of County Commissioners,at its option,may grant an extension of the time of completion shown on Exhibit"B"upon application by the Applicant subject to the terms of Section 6 herein. I'llll 'IIII II'lll1 III' IIIIII III 1111111 III IIIII IIII IIII � 2 MACTB\CTBFORRevised MS\Aprri/ate.wpd 3067520 05/30/2003 11:23A Weld County, CO 2 of 14 R 0.00 0 0.00 Steve Moreno Clerk& Recorder 4.0 Release of Liability: Applicant shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits,actions or claims of every nature and description caused by, arising from, or on account of said design and construction of improvements,and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage,and shall operate in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and health. (THERE IS NO SECTION 5) 6.0 Approval of Streets by the County: Upon compliance with the following procedures by the Applicant, streets within a Subdivision or Planned Unit Development may be approved by the County as public roads and will be maintained and repaired by a Homeowners Association or, in its absence, the owners of lots within the Subdivision or Planned Unit Development. 6.1 If desired by the County,portions of street improvements may be placed in service when completed according to the schedule shown on Exhibit"B,"but such use and operation shall not constitute an approval of said portions. 6.2 County may,at its option,issue building permits for construction on lots for which street improvements detailed herein have been started but not completed as shown on Exhibit"B,"and may continue to issue building permits so long as the progress of work on the Subdivision or Planned Unit Development improvements in that phase of the development is satisfactory to the County; and all terms of this Agreement have been faithfully kept by Applicant. 6.3 Upon completion of the construction of streets within a Subdivision or Planned Unit Development and the filing of a Statement of Substantial Compliance, the applicant(s)may request in writing that the County Engineer inspect its streets and recommend that the Board of County Commissioners partially approve them. Not sooner than nine months after partial approval, the County Engineer shall, upon request by the applicant, inspect the subject streets, and notify the applicant(s) of any deficiencies. The County Engineer shall reinspect the streets after notification from the applicant(s) that any deficiencies have been corrected. If the County Engineer finds that the streets are constructed according to County standards,he or she shall recommend full approval. Upon a receipt of a positive unqualified recommendation from the County Engineer for approval of streets within the development,the Board of County Commissioners shall fully approve said streets as public but with private pay. I IMO 11111 1111111 IIII HON HOB III 11111 IIII IIII Revised 07/01/2002 3067520 05/30/2003 11:23A Weld County, CO 3 MACTB\CTBFORMSWpeivate.wpd 3 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 7.0 General Requirements for Collateral: 7.1 The value of all collateral submitted to Weld County must be equivalent to One- Hundred percent (100%) of the value of the improvements as shown in this Agreement. Prior to Final Plat approval,the applicant shall indicate which of the five types of collateral preferred to be utilized to secure the improvements subject to final approval by the Board of County Commissioners and the execution of this Agreement. Acceptable collateral shall be submitted and the plat recorded within six (6) months of the Final Plat approval. If acceptable collateral has not been submitted within six (6) months then the Final Plat approval and all preliminary approvals shall automatically expire. Applicant may request that the County extend the Final Plat approval provided the cost estimates are updated and the development plans are revised to comply with all current County standards, policies and regulations. The improvements shall be completed within one (I) year after the Final Plat approval(not one year after acceptable collateral is submitted) unless the applicant(s) requests that this Agreement be renewed at least thirty(30) days prior to its expiration and further provides that cost estimates for the remaining improvements are updated and collateral is provided in the amount of One- Hundred percent (100%) of the value of the improvements remaining to be completed. If improvements are not completed and the agreement not renewed within these time frames,the County,at its discretion,may make demand on all or a portion of the collateral and take steps to see that the improvements are made. 7.2 The applicant may choose to provide for a phased development by means of designating filings of a Planned Unit Development Final Plat or Subdivision Final Plat. The applicant would need only to provide collateral for the improvements in each filing as approved. The County will place restrictions on those portions of the property that are not covered by collateral which will prohibit the conveyance of the property or the issuance of building permits until collateral is provided or until improvements are in place and approved pursuant to the requirements for a Request for Release of Collateral. 7.3 The applicant intends to develop in accordance with Exhibits "A"and "B." 8.0 Improvements Guarantee: The five types of collateral listed below are acceptable to Weld County subject to final approval by the Board of County Commissioners. 8.1 An irrevocable Letter of Credit from a Federal or State licensed financial institution on a form approved by Weld County. The Letter of Credit shall state at least the following: 8.1.1 The Letter of Credit shall be in an amount equivalent of One-Hundred percent(100%) of the total value of the improvements as set forth in Section 6.0 and Exhibits "A"and"B." 8.1.2 The Letter o f Credit shall provide for payment upon demand to Weld County if the developer has not performed the obligations specified in the Improvements Agreement and the issuer has been notified of such default. MUM 11111 IIIIII1 IIII MHO BIB III Milli IIII Revised 07/01/2002 3067520 05/30/2003 11:23A Weld County, CO 4 M:\CTB\CTBFORMS\Aprivate.wpd 4 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 8.1.3 The applicant may draw from the Letter of Credit in accordance with the provisions of this policy. 8.1.4 The issuer of the Letter of Credit shall guarantee that, at all times the unreleased portion of the Letter of Credit shall be equal to a minimum of One-Hundred percent (100%) of the estimated costs of completing the uncompleted portions of the required improvements,based on inspections of the development by the issuer. In no case shall disbursement for a general improvement item exceed the cost estimate in the Improvements Agreement(i.e., streets, sewers, water mains and landscaping, etc.). The issuer of the Letter of Credit will sign the Improvements Agreement acknowledging the agreement and its cost estimates. 8.1.5 The Letter of Credit shall specify that fifteen percent (15%) of the total Letter of Credit amount cannot be drawn upon and will remain available to Weld County until released by Weld County. 8.1.6 The Letter of Credit shall specify that the date of proposed expiration of the Letter of Credit shall be either the date of release by Weld County of the final fifteen percent (15%), or one year from the date of Final Plat approval, whichever occurs first. Said letter shall stipulate that, in any event,the Letter of Credit shall remain in full force and effect until after the Board has received sixty (60) days written notice from the issuer of the Letter of Credit of the pending expiration. Said notice shall be sent by certified mail to the Clerk to the Board of County Commissioners. 8.2 Trust Deed upon all or some of the proposed development or other property acceptable to the Board of County Commissioners provided that the following are submitted: 8.2.1 In the event property within the proposed development is used as collateral, an appraisal is required of the property in the proposed development by a disinterested Member of the American Institute of Real Estate Appraisers (M.A.I.)indicating that the value of the property encumbered in its current degree of development is sufficient to cover One-Hundred percent(100%) of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.2 In the event property other than the property to be developed has been accepted as collateral by Weld County,then an appraisal is required of the property by a Member of the Institute of Real Estate Appraisers (M.A.I.) indicating that the value of the property encumbered in its current state of development is sufficient to cover One-Hundred percent(100%)of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.3 A title insurance policy insuring that the Trust Deed creates a valid encumbrance which is senior to all other liens and encumbrances. 1111111 11111 111111 III 1111111 III IIIII 1111111 5 Revised 07/01/2002 3067520 05/30/2003 11:23A Weld County, CO M:\CTB\CTBFORMS Apriva[e.wpd 5 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 8.2.4 A building permit hold shall be placed on the encumbered property. 8.3 Escrow Agreement that provides at least the following: 8.3.1 The cash in escrow is at least equal to One-Hundred percent(100%)of the amount specified in the Improvements Agreement. 8.3.2 The escrow agent guarantees that the escrowed funds will be used for improvements as specified in the agreement and for no other purpose and will not release any portion of such funds without prior approval of the Weld County Board of Commissioners. 8.3.3 The escrow agent will be a Federal or state-licensed bank or financial institution. 8.3.4 If Weld County determines there is a default of the Improvements Agreement,the escrow agent,upon request by the County,shall release any remaining escrowed funds to the County. 8.4 A surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to One-Hundred percent(100%)of the value of the improvements as specified in the Improvements Agreement. 8.5 A cash deposit made with the County equivalent to One-Hundred percent(100%) of the value of the improvements. 9.0 Request for Release of Collateral: Prior to release of collateral for the entire project or for a portion of the project by Weld County, the Applicant must present a Statement of Substantial Compliance from an Engineer registered in Colorado that the project or a portion of the project has been completed in substantial compliance with approved plans and specifications documenting the following: 9.1 The Engineer or his representative has made regular on-site inspections during the course of construction and the construction plans utilized are the same as those approved by Weld County. 9.2 Test results must be submitted for all phases of this project as per Colorado Department of Transportation Schedule for minimum materials sampling,testing and inspections found i n the C olorado Department o f Transportation(CDOT) Materials Manual. 9.3 "As built" plans shall be submitted at the time the letter requesting release of collateral is submitted. The Engineer shall certify that the project "as-built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior approval from the County Engineer. 9.4 The Statements of Substantial Compliance must be accompanied,if appropriate,by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 1 111111 11111 1111111 IIII 111111 III 1111111 III 11111 1111 111 6 Revised M:\CTB\CTBFORMSWP�va[e=wpd 3067520 05/30/2003 11:23A Weld County, CO 6 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 9.5 A letter must be submitted from the appropriate Fire Authority indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and state the results of fire flow tests. 9.6 The requirements in paragraphs 9.0 thru 9.5 shall be noted on the final construction plans. 9.7 Following the submittal of the Statement of Substantial Compliance and recommendation of approval of the streets by the County, the applicant(s) may request release of the collateral for the project or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 9.8 The request for release of collateral shall be accompanied by"Warranty Collateral" in the amount of fifteen percent(15%)of the value of the improvements as shown in this Agreement excluding improvements fully accepted for maintenance by the responsible governmental entity, special district or utility company. 9.9 The warranty collateral shall be released to the applicant upon final approval by the Board of County Commissioners. 10.0 Public Sites and Oren Spaces: When the Board of County Commissioners, pursuant to a rezoning,Subdivision or Planned Unit Development,requires the dedication,development and/or reservation of areas or sites other than Subdivision or Planned Unit Development streets and utility easements of a character, extent and location suitable for public use for parks, greenbelts or schools, said actions shall be secured in accordance with one of the following alternatives,or as specified in the Planned Unit Development(PUD)Plan,if any: 10.1 The required acreage as may be determined according to the Weld County Subdivision Regulations shall be dedicated to the County or the appropriate school district, for one of the above purposes. Any area so dedicated shall be maintained by the County or school district. 10.2 The required acreage as determined according to Chapter 24 of the Weld County Code, may be reserved through deed restrictions as open area, the maintenance of which shall be a specific obligation in the deed of each lot within the Subdivision or Planned Unit Development. 10.3 In lieu of land,the County may require a payment to the County in an amount equal to the market value at the time of Final Plat submission of the required acreage as determined according to Chapter 24 of the Weld County Code. Such value shall be determined by a competent land appraiser chosen jointly by the Board and the Applicant. T he c ash collected s hall be deposited in an escrow a ccount to be expended for parks at a later date. 11.0 Successors and A ssigns: T his Agreement s hall b e binding upon the heirs, executors, personal representatives,successors and assigns of the Applicant,and upon recording by the County, shall be deemed a covenant running with the land herein described, and shall be binding upon the successors in ownership of said land. l llllll lllil VIII" IIII 111111 1I lllilll Ill lllll I'll IIII 7 M:\CTB\CTBFORMSWprivate.wpd 3067520 05/30/2003 11:23A Weld County, CO 7 of 14 R 0.00 0 0.00 Steve Moreno Clerk& Recorder IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the day and year first above written. APPLICANT: 491 4/C- APPLICANT: .42- TITLE: AW/9— Subscribed and sworn to before me • ' of Qf.tk, , 200.3 My Commission expires: •i � 1 1Ag.Q, 7fr ° : No(aity Public A 9r° I.1BLV"° O, 0;'8b0. ,nmission Expires 74/2005 ATTEST: "LH BOARD OF COUNTY COMMISSIONERS WELD COUNTY, COLORADO Weld County Clerk t e cc $61 ‘di IV E3,C '� David E. Long, , Chair BY: a . 05/14/03 Deputy Clerk to th ' dj'l' • , APPROVED AS TO FORM: ty tprney l Iillll IIIII Ililll1 IIII 111111 III 1111111 III (IIII IIII I'll 8 M:\CTR\CTBFORRevised MS\Aprivate.2wpd 3067520 05/30/2003 11:23A Weld County, CO 8 of 14 R 0.00 0 0.00 Steve Moreno Clerk& Recorder 03/11/03 17:23 FAX 970 304 6498 WELD PLANNING aj014 • EXHIBIT"A" Name of Subdivision or Planned Unit Development: summi t at Mountain View Filing: Location: Lot B of RE2196, PT/E25-1-68W Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this Subdivision or Planned Unit Development the following improvements. (Leave spaces blank where they do not apply) Improvements Ouantity Units Unit Estimated Costs Construction Cost Site grading Street grading Street base Street paving Curbs,gutters,and culverts Sidewalk _ Storm sewer facilities Retention ponds Ditch Improvements Subsurface drainage Sanitary sewers Trunk and forced lines Mains Laterals(house connected) On-site sewage facilities On-site water supply and storage Water Mains(includes bore) Fire hydrants _ Survey and street monuments and boxes • Street lighting Street Names Fencing requirements Landscaping $15,000 Park improvements Road culvert Grass lined swale Telephone Gas Electric Water transfer SUB-TOTAL: Engineering and Supervision Costs $ (Testing,inspection,as-built plans and work in addition to preliminary and final plat;supervision of actual construction by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ $\ nod-) 1111111 11111 HMI IIII 111111 III 1111111 III 11111 IIII IIII Revised 07/01/2002 3067520 05/30/2003 11:23A Weld County, CO 9 M:\WPFILEs\WENDI\APRIVATE 9 of 14 R 0.00 D 0.00 Steve Moreno Clerk 8 Recorder The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County,or its duly authorized agent. Said improvements shall be completed according to the construction schedule set out in Exhibit"B." By: /��a AppIt �2`ii�>_� /". Gi'�� — t &nz1t/ 94�/- Date: 7I , 20,O.2 . Title (If corporation,to be signed by President and attested to by Secretary,together with corporate seal.) 111IIII 11111 III IIII 111111 III 1111111 III 111111 III IIII 3067520 05/30/2003 11:23A Weld County, CO 10 of 14 R 0.00 0 0.00 Steve Moreno Clerk& Recorder l0 Revised 07/01/2002 MACTB\CTBFORMS 1 private.wpd 03/11/03 17:23 FAX 970 304 6498 WELD PLANNING fj013 EXHIBIT"B" Name of Subdivision Summit at Mountain View or Planned Unit Development: Filing: Location: Lot B of RE2196, PT/25-1-68W Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this Subdivision or Planned Unit Development the following improvements. All improvements shall b ccompleted within years from the date of approval of the final plat. Construction of the improvements listed in Exhibit"A"shall be completed as follows: (Leave spaces blank where they do not apply.) Improvements Time for Completion • Site grading • Street base Street paving Curbs, gutters,and culverts • Sidewalk Storm sewer facilities • Retention ponds i • Ditch improvements Subsurface drainage Sanitary sewers Trunk and forced lines • Mains --- Laterals(house connecte&l • On-site sewage facilities On-site water supply and istorage Water mains Fire hydrants Survey and street monuments and boxes Street lighting Street name signs Fencing requirements Landscaping 11/30/03 Park improvements Road culvert Grass lined swale I Telephone Gas Electric Water Transfer SUB-TOTAL: 111111 11111 IIIIIII 1111 111111 1111111111 III 111111 III 1111 3067520 05/30/2003 11:23A Weld County, CO 11 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder Revised 07/01/2002 1 I MAWPFA.ESIWENDDAPRIVATE 03/11/03 17:23 FAX 970 304 8498 WELD PLANNING W013 • EXHIBIT"B" Name of Subdivision or Planned Unit Development: Summit at Mountain View Filing: Location: Lot R of RF2196, PT/➢5-1-6RW Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this Subdivision or Planned Unit Development the following improvements. All improvements shall bI completed within one years from the date of approval of the final plat. Construction of the improly ements listed in Exhibit"A"shall be completed as follows: (Leave spaces blank whistle they do not apply.) • • Improvements Time for Completion Site grading 5/30/03 Street base 6/30/03 Street Paving 7/30/03_ Xfurli£/gittt'eW and culveit& and shoulders • 8/15/03 Sidewalk I Storm sewer facilities Retention ponds Ditch improvements Subsurface drainage Sanitary sewers Trunk and forced lines Mains —Laterals(house connected) • On-site sewage facilities On-site water supply andistorage Watermains/pits/seivice stubs 6/30/03 fire hydrants 6/30/03 Survey and street monttnlents and boxes Street lighting 8/30/03 Street name signs 8/30/03 Fencingrequirements Ault Fence during construction 4/30/03 Landscaping Park improvements I Road culvert Grass lined swale I Telephone I 6/10/03 Gas j� 6/301112-_-_ Electric 6/30/03 Water Transfer 4/30/03 SUB-TOTAL: • IIIIII IIIII IIIIIII IIII IIIIII III IIIIIII III IIIIII III IIII 3067520 05/30/2003 11:23A Weld County, CO 12 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder Revlua07/01/2062 11 M:\WPPtLEs\WENDPAPRIVATE The County, at its option, and upon the request of the Applicant, may grant an extension of time for completion for any particular improvements shown above,upon a showing by the Applicant that the above schedule cannot be met. By7)72 J/e Applicant licant��yWI /5 4 / Date: 7;4 , 20 65. Title (If corporation, to be signed by President and attested to by Secretary,together with corporate seal.) 1111111 NII 11111111111111111 III 11111 I III 111111 III lilt 3067520 05130/2003 11:23A Weld County, CO 13 of 14 R 0.00 0 0.00 Steve Moreno Clerk& Recorder 12 Revised 07/01/2002 M:\CTB\CTBFORMS\Ap rivate.wpd The above improvements shall be constructed in accordance with all County requirements and specifications, and conformance with this provision shall be determined solely by Weld County,or its duly authorized agent. Said,, /�� `immprovements shall be completed according to the construction schedule set out in Exhibit"B." By:ApplicanttiQ��e licant id/444i s�%3/ Date: / , 20 Q 3. Title (If corporation, to be signed by President and attested to by Secretary,together with corporate seal.) 1 IIIIII IIIII 11111111111111111 III 1111111 III 111111 III IIII 3067520 05/30/2003 11:23A Weld County, co 14 of 14 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 12 Revised 07/01/2002 M:\CTB\CTBFORMSkApublic.wpd pu bl ic.wpd BENIA-BANC. Commissioners Hoard Of County Commissioners Weld County ATTN:Clerk To The Board IRREVOCABLE LETTER OF FirstBank Of North Main StrDpDeet CREDIT 1707 LommonL CO 80501 (303)772. 500 LENDER" ADDRESS PO Box 758 NO.: 8027463 Greeley, CO 80632 TELEPHONE NO. :IDENTIFICATION Na CUSTOMER EXPIRATION DATE Elizabeth J. Scholten Robert D. Scholten This Letter of Credit shall expire upon the earlier of: David G. Dalglish Karla I. Dalglish 1. the close of business on Robert D. Niemeyer April 04, 2004 and all drafts and accompanying statementsor documents ADDRESS must be presented to Lender on or before that time; or 5036 Fox Hill Drive 2. the day that Lender honors a draw under which the full Longmont, CO 80501 TELEPHONE No. IDENTIFICATION Na amount of this Letter of Credit has been drawn. (303) 772-7478 Lender hereby establishes at the request and for the account of Customer,an Irrevocable Letter of Credit in favor of Beneficiary for a sum of One Hundred Fifty Seven Thousand Five Hundred Seventy Nine and no/100 Dollars ($ 157,579.00 ). These funds shall be made available to Beneficiary upon Lender's receipt from Beneficiary of sight drafts drawn on Lender at Lender's address indicated above (or such other address that Lender may provide Beneficiary in writing) during regular business hours and accompanied by the signed written statements or documents indicated below. WARNINGTO BENEFICIARY:PLEASEEXAMINETHIS LETTEROF CREDITAT ONCE. IF YOU FEEL UNABLE TO MEET ANY OF ITS REQUIREMENTS,EITHER SINGLY OR TOGETHER,YOU SHOULD CONTACT THE CUSTOMERIMMEDIATELYTO SEE IF THE LETTER OF CREDIT CAN BE AMENDED. OTHERWISE,YOU WILL RISK LOSING PAYMENT UNDER THIS LETTEROF CREDIT FOR FAILURETO COMPLY STRICTLY WITH ITS TERMS AS WRITTEN. 1. DRAFT TERMS AND CONDITIONS Lender shall honor drafts submitted by Beneficiary under the following terms and conditions: See attached Exhibit "A" incorporated herein by reference. Upon Lender's honor of such drafts, Lender shall be fully discharged of its obligations under this Letter of Credit and shall not be obligated to make any further payments under this Letter of Credit once the full amount of credit available under this Letter of Credit has been drawn. If a non-conforming demand is made, Lender shall notify Beneficiary of its dishonor on or before the time specified in Paragraph 5 below. Beneficiary shall have no recourse against Lender for any amount paid under this Letter of Credit once Lender has honored any draft or other document which complies strictly with this Letter of Credit, and which on its face appears otherwise in order but which is signed, issued, or presented by a party or under the name of a party purporting to act for Beneficiary,purporting to claim through Beneficiary,or posing as Beneficiary without Beneficiary's authorization. By paying an amount demanded in accordance with this Letter of Credit,Lender makes no representation as to the correctness of the amount demanded and Lender shall not be liable to Beneficiary,or any other person, for any amount paid or disbursed for any reason whatsoever, including, without limitation, any nonapplication or misapplication by Beneficiary of the proceeds of such payment. By presenting upon Lender or a confirming bank, Beneficiary certifies that Beneficiary has not and will not present upon the other, unless and until Beneficiary meets with dishonor. Beneficiary promises to return to Lender any funds received by Beneficiary in excess of the Letter of Credit's maximum drawing amount. 2. USE RESTRICTIONS All drafts must be marked "DRAWN UNDER FirstBank Of Longmont IRREVOCABLE LETTER OF CREDIT 01027463 April 04, 2003 ,"and the amount of each draft shall be marked on the draft. Only Beneficiary or Beneficiary's Transferee(if this Letter of Credit is transferable)may complete a draft and accompanying statements or documents required by this Letter of Credit and make a draw under this Letter of Credit. This original Letter of Credit must accompany any draft drawn hereunder. Partial draws are permitted are not permitted under this Letter of Credit. Lender's honor of a partial draw shaii correspondingly reduce the amount of credit available under this Letter of Credit. Following a partial draw, Lender shall return this original Letter of Credit to Beneficiary with the partial draw noted hereon; in the alternative.,and in its sole discretion, Lender may issue a substitute Letter of Credit to Beneficiary in the amount shown above, less any partial draw(s). 3. PERMITTED TRANSFEREES If checked,this Letter of Credit may be transferredby Beneficiary upon prior written notice to Lender of the transfer. The Transferee shall be deemed the new Beneficiary of this Letter of Credit and the documents of the Transferee,including drafts required under this Letter of Credit,wilt be processed by Lender(or any intermediary)without the original Beneficiary's intervention and without any further obligation of Lender to the original Beneficiary. XI If checked,the right to draw under this Letter of Credit shall be nontransferable, except for: A. A transfer(in its entirety,but not in part)by direct operation of law to the original Beneficiary's administrator,executor,bankruptcy trustee, receiver, liquidator, successor, or other representative at law; and B. The first immediate transfer(in its entirety,but not in part) by such legal representativeto a third party after express approval of a governmental body(judicial, administrative, or executive). MAST602©Fo,mAtion Technologies.Inc. (9/3/96) (800)9373799 4. TRANSFEREE'S REQUIRED DOCUMENTS When the presenter is a permitted Transferee under paragraph 3 above,the documents required for a draw shall include: A. All documents required elsewherein this Letterof Credit,except that such documents may be in the name of and executed by either the original Beneficiary or the presenter permitted by paragraph 3; and B. When the presenter is a permitted Transfereeunder paragraph 3.A.or a third party under paragraph 3.B.,a certified copy of the one or more documents which show the presenter's authority to claim through or to act with authority for the original Beneficiary. 5. TIMING OF DISHONOR Lender may rely upon any reason for dishonor which it communicates to Beneficiary or the presenter within three(3)Banking Days after Lender has received the last document forming Beneficiary's presentment(the"Three-DayPeriod"). Lender shall be entitled to rely upon such reason without regard to either (i) the timing of any presentment made before the Expiration Date, or (ii) the timing inside the Three-DayPeriod of any preliminary communication(s)from Lender concerning the dishonor decision or any reason for dishonor. For any reason for dishonor given during the Three-Day Period, Lender shall be conclusively deemed to have met the "reasonable time", "without delay", and other timing requirements as the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No 500, as most recently published by the International Chamber of Commerce(the "UCP")may impose. The Expiration Date shall not be extended to accommodate a presentment made less than three(3) Banking Days before the Expiration Date,and Beneficiary shall not be entitled to submit a draw request or provide Lender with any documents in support of a draw after the Expiration Date. Lender shall not be required to communicate a dishonor decision or its reasons within a time less than the Three-Day Period. "Banking Day"means any day,except Saturday,on which commercial banks located in Colorado are open. 6. COMPLIANCE BURDEN Lender is not responsible for any impossibility or other difficulty in achieving strict compliance with the requirements of this Letter of Credit precisely as written. Beneficiary understands and acknowledges: (i) that unless and until the present wording of this Letter of Credit is amended with Lender's prior written consent, the burden of complying strictly with such wording remains solely upon Beneficiary;and (ii)that Lender is relying upon the lack of such amendment as constituting Beneficiary's initial and continued approval of such wording. 7. NON-SEVERABILITY If any aspect of this Letter of Credit is ever declared unenforceable for any reason by any court or governmental body having jurisdiction, Lender's entire engagement under this Letter of Credit shall be deemed null and void ab initio,and both Lender and Beneficiaryshall be restored to the position each would have occupied with all rights available as though this Letter of Credit had never occurred. This non-severability provision shall override all other provisions in this Letter of Credit,no matter where such provision appears within this Letter of Credit. 8. CHOICE OF LAW/JURISDICTION This Letter of Credit is subject to the UCP. This Letter of Credit shall be governed by and construed in accordance with the laws of the State of Colorado , United States of America,except to the extent such laws are inconsistent with the UCP. Lender and Beneficiary consent to the jurisdiction and venue of any court selected by Lender in its discretion located in the State of Colorado in the event of any legal proceeding under this Letter of Credit. 9. EXPIRATION Lender hereby agrees with Beneficiary that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored if presented to the Lender on or before the Expiration Date. Dated: April 04, 2003 LENDER: First'�,//Baartk_�Of�JLongmont By: 4.4(`eh rvt h Ja N. Remmerde Se or Vice President ENDORSEMENT OF DRAFTS DRAWN: Amount Amount Date Negotiated By In Words In Figures MAST602B©FormAtion Technologies,Inc. (9/3/96) (800)9373799 EXHIBIT "A" As to a Letter of Credit dated April 4, 2003 in the amount of $157,579.00 to the Board of County Commissioners Weld County from Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish and Robert D. Niemeyer. 1. Each draft must bear upon its face the clause "Draw under Letter of Credit No. 802-7463, dated April 4, 2003, of FirstBank of Longmont" . Each draft must be accompanied by a statement by a duly authorized officer of the Board of County Commissioners for Weld County stating that this draw is in connection with funds needed for the account of Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish and Robert D. Niemeyer. The amount of each draft, which is negotiated pursuant to this credit, together with the date of negotiation, must be endorsed on the reverse side of this letter of credit. 2. This letter of credit is automatically extended without amendment, for additional one year periods from the current expiration or any future expiration date unless 60 days prior to such current expiration date FIRSTBANK OF LONGMONT notifies beneficiary in writing that the letter of credit will not be renewed. In the case you receive such a notification, you may draw by presentation of the following: (a) a draft at sight on FIRSTBANK OF LONGMONT; (b) a statement purportedly signed by an official of the Board of County Commissioners of Weld County, Colorado stating that we have received notice from FIRSTBANK OF LONGMONT the Letter of Credit No. 8027463 will not be renewed and that Elizabeth J. Scholten, Robert D. Scholten, David G. Dalglish, Karla I. Dalglish, and Robert D. Niemeyer has failed to provide proof of adequate collateral and substitution of this Letter of Credit No. 8027463 (c) copy of letter from FIRSBANK OF LONGMONT stating non-renewal of Letter of Credit No. 8027463 and the original letter of credit. 521 IMPROVEMENTS AGREEMENT ACCORDING TO POLICY REGARDING COLLATERAL FOR IMPROVEMENTS (PUBLIC ROAD MAINTENANCE) THIS AGREEMENT,made and entered into this 1st day of April ,20 03 by and between the C ounty of Weld, State of Colorado, acting through its Board of County Commissioners, hereinafter called "County,"and DNS Development, LLC ,hereinafter called "Applicant." WITNESSETH: WHEREAS, Applicant is the owner of, or has a controlling interest in the following described property in the County of Weld, Colorado: Lot B of RE 2196, PT/E25-1-68W or 5579 Fire Ave, Erie, CO WHEREAS, a final Subdivision/Planned Unit Development (PUD) Plat of said property, to be known as summit at Mountain View has been submitted to the County for approval; and WHEREAS, relevant Sections of the Weld County Code provide that no Subdivision Final Plat, Planned Unit Development Final Plat,or Site Plan shall be approved by the County until the Applicant has submitted a Subdivision Improvements Agreement guaranteeing the construction of the public improvements shown on plans,plats and supporting documents of the Subdivision Final Plat,Planned Unit Development Final Plat, or Site Plan, which improvements, along with a time schedule for completion, are listed in Exhibits"A"and"B"of this Agreement. NOW, THEREFORE, IN CONSIDERATION OF the foregoing and of the acceptance and approval of said Final Plat, the parties hereto promise, covenant and agree as follows: 1.0 Engineering Services: Applicant shall furnish,at its own expense,all engineering services in connection with the design and construction of the Subdivision or Planned Unit Development improvements listed on Exhibit "A," which is attached hereto and incorporated herein by reference. 1.1 The required engineering services shall be performed by a Professional Engineer and Land Surveyor registered in the State of Colorado, and shall conform to the standards and criteria established by the County for public improvements. 1.2 The required engineering services shall consist of, but not be limited to, surveys, designs,plans and profiles,estimates,construction supervision,and the submission of necessary documents to the County. 1.3 Applicant shall furnish drawings and cost estimates for roads within the Subdivision or Planned Unit Development to the County for approval prior to the letting of any construction contract. Before acceptance of the roads within the Subdivision or Planned Unit Development by the County, Applicant shall furnish one set of Revised 07/01/2002 jffJIIIIII !JIIIIIIIHIIIIIMOI!J IIII IIII 121 05/30/2003 11:23A Weld County, CO 1 of 12 R 0.00 D 0.00 Steve Moreno Clerk 8 Recorder reproducible "as-built" drawings and a final statement of construction cost to the County. 2.0 Rights-of-way and Easements: Before commencing the construction of any improvements herein agreed upon,Applicant shall acquire,at its own expense,good and sufficient rights- of-way and easements on all lands and facilities traversed by the proposed improvements. All such rights-of-way and easements used for the construction of roads to be accepted by the County shall be conveyed to the County and the documents of conveyance shall be furnished to the County for recording. 3.0 Construction: Applicant shall furnish and install, at its own expense, the Subdivision or Planned Unit Development improvements listed on Exhibit"A,"which is attached hereto and incorporated herein by reference, according to the construction schedule set out in Exhibit"B" also attached hereto and incorporated herein by reference. 3.1 Said construction shall be in strict conformance to the plans and drawings approved by the County and the specifications adopted by the County for such public improvements. Whenever a Subdivision or Planned Unit Development is proposed within three miles of an incorporated community located in Weld County or located in any adjacent county,the Applicant shall be required to install improvements in accordance with the requirements and standards that would exist if the plat were developed within the corporate limits of that community. If the incorporated community has not adopted such requirements and standards at the time the Subdivision or Planned Unit Development is proposed, the requirements and standards of the County shall be adhered to. If both the incorporated community and the County have requirements and standards,those requirements and standards that are more restrictive shall apply. 3.2 Applicant shall employ,at its own expense,a qualified testing company previously approved by the County to perform all testing of materials or construction that is required by the County; and shall furnish copies of test results to the County. 3.3 At all times during said construction, the County shall have the right to test and inspect, or to require testing and inspection of material and work, at Applicant's expense. Any material or work not conforming to the approved plans and specifications shall be removed and replaced to the satisfaction of the County at Applicant's expense. 3.4 Applicant shall furnish proof that proper arrangements have been made for the installation of sanitary sewer or septic systems, water, gas, electric and telephone services. 3.5 Said Subdivision or Planned Unit Development improvements shall be completed, according to the terms of this Agreement, within the construction schedule appearing in Exhibit"B." The Board of County Commissioners,at its option,may grant an extension of the time of completion shown on Exhibit"B"upon application by the Applicant subject to the terms of Section 6 herein. 4.0 Release of Liability: Applicant shall indemnify and hold harmless the County from any and all liability loss and damage County may suffer as a result of all suits, actions or claims of IIIIII VIII VIII" IIII IIIIII Iil IIIIIII III VIII IIII IIII 2 Revised 07/01/2002 M:\CTB\CTBFORMSWpublic.wpd 3067521 05/30/2003 11:23A Weld County, CO 2 0l 12 R 0.00 0 0.00 Steve Moreno Clerk& Recorder every nature and description caused by, arising from, or on account of said design and construction of improvements,and pay any and all judgments rendered against the County on account of any such suit, action or claim, together with all reasonable expenses and attorney fees incurred by County in defending such suit, action or claim whether the liability, loss or damage is caused by, or arises out of the negligence of the County or its officers, agents, employees, or otherwise except for the liability, loss, or damage arising from the intentional torts or the gross negligence of the County or its employees while acting within the scope of their employment. All contractors and other employees engaged in construction of the improvements shall maintain adequate worker's compensation insurance and public liability insurance coverage,and shall operate in strict accordance with the laws and regulations of the State of Colorado governing occupational safety and health. 5.0 Off-Site Improvements Reimbursement Procedure: The subdivider,applicant,or owner may be reimbursed for off-site road improvements as provided in this section when it has been determined by the Board of County Commissioners that the road facilities providing access to the Subdivision or Planned Unit Development are not adequate in structural capacity, width, or functional classification to support the traffic requirements of the uses of the Subdivision or Planned Unit Development. 5.1 The subdivider, applicant, or owner shall enter into an off-site improvements agreement prior to recording the final plat when the subdivider,applicant,or owner expects to receive reimbursement for part of the cost of the off-site improvements. 5.2 The off-site improvements agreement shall contain the following: The legal description of the property to be served. The name of the owner(s)of the property to be served. A description of the off-site improvements to be completed by the subdivider,applicant, or owner. The total cost of the off-site improvements. The total vehicular trips to be generated at build-out by the Subdivision, Resubdivision,or Planned Unit Development,as specified by the ITE Trip Generation Manual, or by special study approved by the Board of County Commissioners. A time period for completion of the off-site improvements. The terms of reimbursement. The current address of the person to be reimbursed during the term of the agreement. Any off-site improvements agreement shall be made in conformance with the Weld County policy on collateral for improvements. 5.3 If the subdivider, applicant, or owner fails to comply with the improvements agreement,the opportunity to obtain reimbursement under this section is forfeited. 5.4 When it is determined by the Board of County Commissioners that vehicular traffic from a Subdivision, Resubdivision, or Planned Unit Development will use a road improvement constructed under an improvements agreement, the subsequent subdivider, applicant, or owner shall reimburse the original subdivider, applicant, or owner, for a portion of the original construction cost. In no event shall the original subdivider, applicant, or owner collect an amount which exceeds the total 1111111111111111111111111111111111111111111111111111111 3 MACTB\CTBFORevised 07/01/2002 RMSWpublic.wpd 3067521 05130/2003 11:23A Weld County, CO 3 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder cost of improvements less the pro rata share of the total trip impacts generated by the original development. Evidence that the original subdivider,applicant,or owner has been reimbursed by the subsequent subdivider, applicant or owner shall be submitted to the Depaitment of Planning Services prior to recording the Subdivision,Resubdivision, or Planned Unit Development Final Plat. 5.5 The amount of road improvement costs to be paid by the subsequent subdivider, applicant,or owner of a Subdivision,Resubdivision,or Planned Unit Development using the road improvements constructed under a prior improvement agreement will be based upon a pro rata share of the total trip impacts associated with the number and type of dwelling units and square footage and type of nonresidential developments intended to use the road improvement. The amount of road improvement costs shall also consider inflation as measured by the changes in the Colorado Construction Cost Index used by the Colorado Division of Highways. The cost of road improvements may be paid by cash contribution to the prior subdivider,applicant or owner,or by further road improvements which benefit the prior subdivider, applicant, or owner's property. This decision shall be at the sole discretion of the Board of County Commissioners based upon the need for further off-site road improvements. 5.6 The report entitled TRIP GENERATION (Third Edition, 1982)of the institute of Transportation Engineers shall normally be used for calculating a reasonable pro rata share of the road improvement construction costs for all Subdivisions, Resubdivisions, or Planned Unit Developments. A special transportation study shall be used for land uses not listed in the ITE Trip Generation Manual. Any question about the number of trips a Subdivision,Resubdivision, or Planned Unit Development will generate shall be decided by the County Engineer. 5.7 The term for which the subdivider,applicant,or owner is entitled to reimbursement under the off-site improvements agreement,entered into between the subdivider and the County, is ten years from the date of execution of a contract for road improvements. 5.8 This provision is not intended to create any cause of action against Weld County or its officers or employees by any subdivider,applicant,or owner for reimbursement, and in no way is Weld County to be considered a guarantor of the monies to be reimbursed by the subsequent subdividers, applicants, or owners. 6.0 Acceptance of Streets for Maintenance by the County: Upon compliance with the following procedures by the Applicant,streets within a Subdivision or Planned Unit Development may be accepted by the County as a part of the County road system and will be maintained and repaired by the County. 6.1 If desired by the County,portions of street improvements may be placed in service when completed according to the schedule shown on Exhibit"B,"but such use and operation shall not constitute an acceptance of said portions. 6.2 County may,at its option,issue building permits for construction on lots for which street improvements detailed herein have been started but not completed as shown on Exhibit"B,"and may continue to issue building permits so long as the progress IIIIIII VIII IIIIIII III' Hill III IIIIIII III VIII IIII IIII 4 M:\CTB\CTBFORevised 07/01/2002 RMS\Apublic.wpd 3067521 05/30/2003 11:23A Weld County, CO 4 of 12 R 0.00 D 0.00 Steve Moreno Clerk & Recorder of work on the Subdivision or Planned Unit Development improvements in that phase of the development are satisfactory to the County; and all terms of this Agreement have been faithfully kept by Applicant. 6.3 Upon completion of the construction of streets within a Subdivision or Planned Unit Development and the filing of a Statement of Substantial Compliance, the applicant(s)may request in writing that the County Engineer inspect the streets and recommend that the Board of County Commissioners accept them for partial maintenance by the County. Partial maintenance consists of all maintenance except for actual repair of streets,curbs and gutters,and related street improvements. Not sooner than nine months after acceptance for partial maintenance of streets, the County Engineer shall, upon request by the applicant, inspect the subject streets, and notify the applicant(s)of any deficiencies. The County Engineer shall reinspect the streets after notification from the applicant(s)that any deficiencies have been corrected. If the County Engineer finds that the streets are constructed according to County standards, he shall recommend acceptance of the streets for full maintenance. Upon a receipt of a positive unqualified recommendation from the County Engineer for acceptance of streets within the development, the Board of County Commissioners shall accept said streets as public facilities and County property,and shall be responsible for the full maintenance of said streets including repair. 7.0 General Requirements for Collateral: 7.1 The value of all collateral submitted to Weld County must be equivalent to One- Hundred percent (100%) of the value of the improvements as shown in this Agreement. Prior to Final Plat approval, the applicant shall indicate which of the five types of collateral preferred to be utilized to secure the improvements subject to final approval by the Board of County Commissioners and the execution of this Agreement. Acceptable collateral shall be submitted and the plat recorded within six (6) months of the Final Plat approval. If acceptable collateral has not been submitted within six (6) months then the Final Plat approval and all preliminary approvals shall automatically expire. An applicant may request that the County extend the Final Plat approval provided the cost estimates are updated and the development plans are revised to comply with all current County standards,policies and regulations. The improvements shall be completed within one(1)year after the Final Plat approval(not one year after acceptable collateral is submitted) unless the applicant(s) requests that this Agreement be renewed at least thirty(30) days prior to its expiration and further provides that cost estimates for the remaining improvements are updated and collateral is provided in the amount of One- Hundred percent (100%) of the value of the improvements remaining to be completed. If improvements are not completed and the agreement not renewed within these time frames,the County,at its discretion,may make demand on all or a portion of the collateral and take steps to see that the improvements are made. 7.2 The applicant may choose to provide for a phased development by means of designating filings of a Planned Unit Development Final Plan or Subdivision Final Plan. The applicant would need only to provide collateral for the improvements in each filing as approved. The County will place restrictions on those portions of the property that are not covered by collateral which will prohibit the conveyance of the AIM 07/01/2002 VIII VIII" 111111111111111111111111111111111111 IIIIII III V'II'I III VIII IIII I 5 Revised 3067521 05/30/2003 11:23A Weld County, CO 5 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder property or the issuance of building permits until collateral is provided or until improvements are in place and approved pursuant to the requirements for a Request for Release of Collateral. 7.3 The applicant intends to develop in accordance with Exhibits "A" and "B." The costs of the improvements described in Exhibit"A"will be adjusted higher or lower for the year and quarter in which the contemplated work is being performed based on"The State Highway Bid Price Index"contained in the"Quarterly Cost Report" of The Engineering News-Record as published by The McGraw-Hill Companies. The applicant has provided cost estimates for all phases of the development which will be adjusted in accordance with The State Highway Bid Price Index at the time of posting of collateral for each phase. 8.0 Improvements Guarantee: The five types of collateral listed below are acceptable to Weld County subject to final approval by the Board of County Commissioners. 8.1 An irrevocable Letter of Credit from a Federal or State licensed financial institution on a form approved by Weld County. The Letter of Credit shall state at least the following: 8.1.1 The Letter of Credit shall be in an amount equivalent to One-Hundred percent(100%)oft he total value oft he improvements a s set forth in Section 6.0 and Exhibits"A"and"B." 8.1.2 The Letter of Credit shall provide for payment upon demand to Weld County if the developer has not performed the obligations specified in the Improvements Agreement and the issuer has been notified of such default. 8.1.3 The applicant may draw from the Letter of Credit in accordance with the provisions of this policy. 8.1.4 The issuer of the Letter of Credit shall guarantee that, at all times, the unreleased portion of the Letter of Credit shall be equal to a minimum of One-Hundred percent (100%) of the estimated costs of completing the uncompleted portions of the required improvements,based on inspections of the development by the issuer. In no case shall disbursement for a general improvement item exceed the cost estimate in the Improvements Agreement(i.e., streets, sewers, water mains and landscaping, etc.). The issuer of the Letter of Credit will sign the Improvements Agreement acknowledging the agreement and its cost estimates. 8.1.5 The Letter of Credit shall specify that fifteen percent (15%) of the total Letter of Credit amount cannot be drawn upon and will remain available to Weld County until released by Weld County. 8.1.6 The Letter of Credit shall specify that the date of proposed expiration of the Letter of Credit shall be either the date of release by Weld County of the final fifteen percent (15%), or one year from the date of Final Plat approval, whichever occurs first. Said letter shall stipulate that, in any event,the Letter of Credit shall remain in full force and effect until after the 1111111 11111 1111111 1111 111111III1111111III 11111 1111 111 6 M:\CTB CTRFORMSed 07/0 /2002 3067521 05/30/2003 11:23A Weld County, CO 6 of 12 R 0.00 0 0.00 Steve Moreno Clerk& Recorder Board has received sixty (60) days written notice from the issuer of the Letter of Credit of the pending expiration. Said notice shall be sent by certified mail to the Clerk to the Board of County Commissioners. 8.2 Trust Deed upon all or some of the proposed development or other property acceptable to the Board of County Commissioners provided that the following are submitted: 8.2.1 In the event property within the proposed development is used as collateral, an appraisal is required of the property in the proposed development by a disinterested Member of the American Institute of Real Estate Appraisers (M.A.I.)indicating that the value of the property encumbered in its current degree of development is sufficient to cover One-Hundred percent(100%) of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.2 In the event property other than the property to be developed has been accepted as collateral by Weld County,then an appraisal is required of the property by a Member of the Institute of Real Estate Appraisers (M.A.I.) indicating that the value of the property encumbered in its current state of development is sufficient to cover One-Hundred percent(100%)of the cost of the improvements as set forth in the Improvements Agreement plus all costs of sale of the property. 8.2.3 A title insurance policy insuring that the Trust Deed creates a valid encumbrance which is senior to all other liens and encumbrances. 8.2.4 A building permit hold shall be placed on the encumbered property. 8.3 Escrow Agreement that provides at least the following: 8.3.1 The cash in escrow is at least equal to One-Hundred percent(100%)of the amount specified in the Improvements Agreement. 8.3.2 The escrow agent guarantees that the escrowed funds will be used for improvements as specified in the agreement and for no other purpose and will not release any portion of such funds without prior approval of the Weld County Board of Commissioners. 8.3.3 The escrow agent will be a Federal or state-licensed bank or financial institution. 8.3.4 If Weld County determines there is a default of the Improvements Agreement,the escrow agent,upon request by the County,shall release any remaining escrowed funds to the County. 8.4 A surety bond given by a corporate surety authorized to do business in the State of Colorado in an amount equivalent to One-Hundred percent(100%)of the value of the improvements as specified in the Improvements Agreement. 1111111 11111 1111111 IIII IIIIII 111 lllllll 111 lllll I'll IIII 7 M:\CTB\CTBFORevised 07/01/2002 RMSWpublic.wpd 3067521 05/30/2003 11:23A Weld County, CO 7 of 12 R 0.00 0 0.00 Steve Moreno Clerk& Recorder 8.5 A cash deposit made with the County equivalent to One-Hundred percent(100%) of the value of the improvements. 9.0 Request for Release of Collateral: Prior to release of collateral for the entire project or for a portion of the project by Weld County, the Applicant must present a Statement of Substantial Compliance from an Engineer registered in the State of Colorado that the project or a portion of the project has been completed in substantial compliance with approved plans and specifications documenting the following: 9.1 The Engineer or his representative has made regular on-site inspections during the course of construction and the construction plans utilized are the same as those approved by Weld County. 9.2 Test results must be submitted for all phases of this project as per Colorado Department of Transportation(CDOT)Schedule for minimum materials sampling, testing and inspections found in CDOT Materials Manual. 9.3 "As-built" plans shall be submitted at the time the letter requesting release of collateral is submitted. The Engineer shall certify that the project "as-built" is in substantial compliance with the plans and specifications as approved, or that any material deviations have received prior approval from the County Engineer. 9.4 The Statements of Substantial Compliance must be accompanied,if appropriate,by a letter of acceptance of maintenance and responsibility by the appropriate utility company, special district or town for any utilities. 9.5 A letter must be submitted from the appropriate Fire Authority indicating the fire hydrants are in place in accordance with the approved plans. The letter shall indicate if the fire hydrants are operational and state the results of fire flow tests. 9.6 The requirements in Sections 9.0 thru 9.5 shall be noted on the final construction plans. 9.7 Following the submittal of the Statement of Substantial Compliance and recommendation of acceptance of the streets for partial maintenance by the County, the applicant(s)may request release of the collateral for the project or portion of the project by the Board. This action will be taken at a regularly scheduled public meeting of the Board. 9.8 The request for release of collateral shall be accompanied by"Warranty Collateral" in the amount of fifteen percent(15%)of the value of the improvements as shown in this Agreement excluding improvements fully accepted for maintenance by the responsible governmental entity, special district or utility company. 9.9 The warranty collateral shall be released to the applicant upon final acceptance by the Board of County Commissioners for full maintenance under Section 5.3 herein. 10.0 Public Sites and Open Spaces: When the Board of County Commissioners, pursuant to a rezoning, Subdivision or Planned Unit Development,requires the dedication,development and/or reservation of areas or sites other than Subdivision or Planned Unit Development IIIIII VIII VIII" MU NI III lllllll III VIII I'll ID 8 Revised 07/01/2002 M:\CTB\CTBFORMS\Apublic.wpd 3067521 05/30/2003 11:23A Weld County, CO 8 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder streets and utility easements of a character, extent and location suitable for public use for parks, greenbelts or schools, said actions shall be secured in accordance with one of the following alternatives, or as specified in the Planned Unit Development plan, if any: 10.1 The required acreage, as may be determined by relevant Sections of the Weld County Code,shall be dedicated to the County or the appropriate school district,for one of the above purposes. Any area so dedicated shall be maintained by the County or school district. 10.2 The required acreage,as determined by relevant Sections of the Weld County Code may be reserved through deed restrictions as open area,the maintenance of which shall be a specific obligation in the deed of each lot within the Subdivision or Planned Unit Development. 10.3 In lieu of land,the County may require a payment to the County in an amount equal to the market value at the time of Final Plat submission of the required acreage as determined by relevant Sections of the Weld County Code. Such value shall be determined by a competent land appraiser chosen jointly by the Board and the Applicant. T he c ash collected shall b e deposited in an escrow a ccount to be expended for parks at a later date. 11.0 Successors and A ssigns: T his A greement s hall b e binding upon the heirs, executors, personal representatives,successors and assigns of the Applicant,and upon recording by the County, shall be deemed a covenant running with the land herein described, and shall be binding upon the successors in ownership of said land. IN WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed on the day and year first above written. APPLICANT: APPLICANT:4 4,t, 2,a61/ ff I11LE: Subscribed and sworn to before me this f sr day of , 20 V3 . /, $TEVFtis� My Commission expires: j�;\OTAR��.211 ,s� . , Q €c 11 N Public 1100( i c 1 t kN •\ OAJ J.t U Iit 9 C„pL\OQ,O: MyC.,ramissionExpires 04/X05 Revised 07/01/2002 I IIIIII VIII IIIIIII IIII IN III 11111III IIII' IIII I 9 Revised 3067521 05/30/2003 11:23A Weld County, CO 9 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 03/11/03 17:23 FAX 970 304 8498 WELD PLANNING i ul4 EXEIIBIT"A" • Name of Subdivision Summit at Mountain View orPlannedUnit Development: Filing: Location: Lot B of RE2196, PT/E75-1-68W • Intending to be legally bound, the undersigned Applicant hereby agrees to provide throughout this Subdivision or Planned Unit Development the following improvements. (Leave spaces blank where they do not apply) bnoroyements Ouantitv Units, Unit Estimated Constriction Cost Site grading $ 2,000 Streetgrading --____\ Street base I Street paving 51,363 Curbs,gutters,and culverts Sidewalk • Storm sewer facilities Retention ponds Ditch Improvements , Subsurface drainage , Sanitary sewers Trunk and forced lines i Mains _ Laterals(house connected) - On-site sewage facilities On-site water supply and storage 32,478 Water Mains(includcabore)pits/Service stubs Fire hydrants s, 1-11a Survey and street monuments and boxes Street lighting 1,000 StreetNames/Entry Way 2,000 Fencingrequirements Silt Fence during construction 2,500 Landscaping Park improvements — Road culvert Grass lined male Telephone 6,000 Gas 6,000 Electric 8,000 Watertranafer/initial tap tee commitments 33,624 149,979 SUB-TOTAL; Engineering and Supervision Costs$ 7,600 (Testing,inspection,as-built plans and work in addition to preliminary and final plat;supervision of actual construction by contractors) TOTAL ESTIMATED COST OF IMPROVEMENTS AND SUPERVISION $ 157,579 1 II IIIII 1111111 III 111111 III 1111111 III 111111 III 1111 Rewind 07/01/2002 3067521 05/30/2003 11:23A Weld County, CO 9 MAWIFILES\WENDAAPmVATE 10 of 12 R 0.00 0 0.00 Steve Moreno Clerk& Recorder ATTEST: J�j," ' dip BOARD OF COUNTY COMMISSIONERS 60 WELD COUNTY, COLORADO Weld County Clerk to t $ __ [d ��s David E. Long Chair '4 \ '5f"� 4 05/14/03 �p (/ N BY: CG " Deputy Clerk to the Board APPROVED AS TO FORM: ttorney I 1111 11111 1111111 IIII 111111 III IN III 111111 III IIII 3067521 05130/2003 11:23A Weld County, CO 11 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder 10 Revised 07/01/2002 M:\CTB\CTBFORMS\Apubli c.wpd The County, at its option, and upon the request of the Applicant,may grant an extension of time for completion for any particular improvements shown above,upon a showing by the Applicant that the above schedulee cannot be met. �� By: &,(X f�s� %2 ��/�_ Applicant iaA9 k—All iDate: .. 4.-/ 3 20 . Titlee ar (If corporation, to be signed by President and attested to by Secretary, together with corporate seal.) 1111111111111111111 IIII 111111 III 1111111 III 111111 III IIII 3067521 05/30/2003 11:23A Weld County, CO 12 of 12 R 0.00 D 0.00 Steve Moreno Clerk& Recorder Revised 07/01/2002 14 MACTB\CTBFORMS\Apublie.wpd MEMORANDUM wokTO: Carol Harding/Esther Gesick 4/27/03 COLORADO FROM: Chris Gathman - Planner II s, SUBJECT: Collateral for Improvements Agreements for PF-568 (Summit @ Mountain View) These improvements agreements have been reviewed and O.K'd by the Department of Public Works and the Department of Planning Services. Only thing needed is verification of collateral by County Attorney's Office prior to scheduling. Let me know if you have any questions. SERVICE,TEAMWORK,INTEGRITY,QUALITY Weld County Planning Depar: .l::n+ GREELrY OFFICE MAR 7 2003 MEMORANDUM RECEIVE TO: Chris Gathman, Planner PtT : 05-March-2003 COLORADO FROM: Peter Schei, P.E., Civil Engineer SUBJECT: PF-568, Summit at Mountain VieW UD (Final Plan) The Weld County Public Works Department has received final plan materials and has the following comments: COMMENTS: ❑ The Public Works Department effectively `signs-off on this development and has no known issues with Summit at Mountain View PUD. o The Department of Planning may proceed with this case as required, with no restrictions by Public Works.* * PC: PF-568 Email & Original: Planner (k.+r' 5 PC by Post: Applicant i)avtd lTG(�1)sk PC by Post: Engineer j,tckMy(>r> , c4-Nrd45 En pit M Pete:Planning Rcaic%O-Final Plat'PF-568 Summit at Mountain View PUU-SignoI(Final Plat)dXXP age I of 1 o5-March-am] Weld County Planning Department GREEt.EY OFFICE Atii; MAR 5 2003 MEMORANDUM RECEIVED 11111 TO: Chris Gathman, Planner I DATE: 3/4/2003 COLORADO • FROM: Donald Carroll, Engineering Administrator ).W SUBJECT: PF-568, Summit at Mountain View PUD (final plat) Both the attached documents, the Road Maintenance and Improvements Agreement (Public Road Maintenance) and the Improvements Agreement According to Policy Regarding Collateral for Improvements (Public Road Maintenance) will be scheduled for a Board hearing. Originally, this case was represented by Carla Angeli, Planner, in July 2002. Carla is no longer with Planning Services; therefore, these items need to be rescheduled. Verify the collateral agreement for any non-transportation items prior to scheduling pc: Carol Harding, CTB Peter Schei, Public Works PF-568 M:\PLANNING\PF-568.doc 07/31/02 11:55 FAX 970 304 64£%-. WELD PLANNING ,.r Q002 Weld County Planning Department GREELEY OFFICE is JUL 2 5:200Z l MEMORANDUMre 4§ .,. jimint-: s i , 7 F E D ' TO; Carla Angell, Planner DATE: July 23; 2002 FROM: Donald Carroll, Engineering Administrator e"i • SUBJECT '. S-596 Summit at Mt. View PUb COLORADO Review Improvements Agreement According:Policies Regarding Collateral ?;(public read maintenance) At your request,i reviewed the transportation portion of the Improvements:Agreement. It includes site:grading, street grading, street;base,street paving;ibulyerts,and street name.sighs,, All the transportation portion costs have been calculated and reviewed and appear to complete the paving and-base for Summit at Mr.:View PUb. : to be adequate All other non-transportation items should be verified by Planning Services prior to scheduling: pc: Carol Harding, CTB.: Z-568 end S-596 file. M:\WPFILE&\DON-C12-568.wpd .: ..:. LEE Morrison - mountain view, Summit(a Page 111 From: LEE Morrison To: CAROL Harding; Chris Gathman Subject: mountain view, Summit @ the agreements and collateral are OK except that the Letter of Credit is to a group of individuals and the agreement is to DNS Development LLC . Chris do you have evidence that Dagliesh Niemeyer and Schloten are the DNS of DNS or can you get corporate papers from the applicant or have the agreement changed to name the individuals? I have tried unsuccessfully the last 3 days to get the Secretary of State Website myself I am returning the documents to Carol • eld County Planning Der r;-. (—EERY OFFICE 6 1 2 2002 AO it ‘11 LLaA Weld County Referral August 30, 2002 • COLORADO The Weld County Department of Planning Services has rro.ved the following item for renew: Applicant DNS Development, LLC Case Number PF-568 Please Reply by September 20, 2002 Planner Carla Angeli Project Final Plan for seven (7) Estate Zono _ots. Legal Lot B of RE-2196; part of the E2 of S ron 5, T1 N, R68W of the 6th P.M., Weld County, Colorado. Location 1/4 mile south of Hwy 52 on WCR 5; west on Mountain View Street; north on Fir Avenue (west of Carmacar Ranchette Subdivision). Parcel Number 1467 05 100020 The application is submitted to you for review and recommendation. Any comments or recommendation you consider relevant to this request would be appreciated. Please reply by the above listed date so that we may give full consideration to your recommendation. Any response not received before or on this date may be deemed to be a positive response to the Department of Planning Services. If you have any further questions regarding the application, please call the Planner associated with the request. Weld County Utility Board Design Review Meeting: October 10, 2002 ❑ We have reviewed the request and find that it does/cues not comply with our Comprehensive Plan ❑ We have reviewed the request and find no conflicts with our interests. ❑ See attached letter. t 7� Comments: iv e ate QU0r NgI�IP ; tV ter/P ye r Ole r e f / (! ur o he / Ct n JyrbC �/ —fy� rmot n} ✓OV� (C1275 �1/len c / vvt11C `i ku vt 11/1 tt,y//e/ i V o/1C, Signatur Date Agency (:'✓J �( ci +Weld County Planning Dept. +1555 N. 17th Ave.Greeley,CO.80631 +(970)353-6100 ext.3540 +(970)304-6498 fax 05/09/2005 18:26 3037726714 SCHOLTEN ENTERPRISES PAGE 01 TO: Carol Harding FAX # • 970-352-0242 Dear Carol: Chris asked me to fax our Articles of Organization and our Operating agreement for DNS Development to show the connection between the partners and the LLC. I'm also wondering when the final review of the financing statements will be scheduled? Please let me know. If you have any estions,please call me. Thanks, Bets 303 23 CELL If you have any questions, please contact Bets Scholten at: 303 880-0723 Cell Phone 720 652-5903 Direct Line 303 772-6714 Home Fax 303 772-9078 Office Fax Web Page: CallBets.com 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 02 Kure.CI ISLOMI!K C'Y oom-riAsativumoN Man to: Secretary of StammAN miwAhl•ARyvortiffiss use one y Corporations Sedition • 1500 *roadway, Suit. 200 Denver, CO 80202 „1 Q of 1TATE MUST SE TYPED Fax (303)303) 004-2342 4-20'2004 10:40:00 FILING FEE: $50.00 MUST SUBMIT]3Q COPIES 043081454 M Please Include a typed ARTICLES OF ORGANIZATION SECRETARY OF STATE sslfaddrssssd envelope 04-20-2001 13:40:30 IIWU the undersgned min gerunds)of the age of eighteen years or ma Mktg as ergenisa(.)tof a limited labllt r oompilty under the Colorado United UabWly Company AMR Mast the Wowing Moles of Orgenktellon for suer Milted lability company: FIRST: The name ar Me(sped Hawk company N DNS DEVELOPMENT LLC 8500N0: PriMperpyoITFburns pram in): 451 91ct Avenue, Longmont, CO 90501 THIRD: The sheet address of the Ydlel registered Moe of the limited lability company It • 457. 21st Avenue Longmont, CO 80501 • The mailing address Of deferent nom above)of lr Mal registered office of the Milted lability company Is: The name of Its proposed registered art in Colorado at that address is: Elizabeth J. Scholten FOURTH: ?st The msnaesment Is vested In minion(ehick K appropriate) FIFTH; The names end boldness addresses or the bad manager or managers or if the Is vested in the members, 'tither tan mangers, br names and addresses of the member or ream are: NAME ADORNS!(include zip toilet Elizabeth J. Scholten 451 21st Avenue Longmont, CO 80501 SIXTH: The name end address of*soh omega?Is: ADDRESS aneluds alp code) Elizabeth J. Scholten 451 2ist Avenue Longmont, CO 80501 O ne a Stilt �C p 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 03 OPERATING AGREEMENT of DNS DEVELOPMENT LLC a Colorado Limited Liability Company 1. FORMATION. 1.1. Parties. The parties to this Agreement are David G. Daiglish& Karla I. Daiglish and Robert D. Niemeyer and Robert D. Scholten&Elizabeth J. Schohen(collectively referred to as the "Members"). 1.2. Organization. The Members hereby organize the Company as a Colorado Limited Liability Company pursuant to the provisions of the Colorado Limited Liability Company Act and all amendments to the Act(the"Act"). Accordingly,in consideration of the mutual promises set forth in this Agreement,the parties covenant and agree to the terms and conditions set forth in the following paragraphs. 1.3. Name. The name of the Company shall be DNS DEVELOPMENT LW (the`Company"), and all Business of the Company shall be conducted under that name or under any other name upon which the Members agree,but in any case,only to the extent permitted by applicable law. If the Company does business under any name other than that set forth in the Articles of Organization, then the Company shall file a trade name certificate as required by law. 1.4. Purpose. The Company is organized to engage in any business permitted under the Act. 1.5. Effective Date and Term. This Agreement shall become effective upon the filing of the Articles of Organization for the Company with the secretary of State of the State of Colorado. The Company shall continue in existence until terminated in accordance with this Agreement. 1.6. Registered Office and Agent The registered office of the Company shall be at 45121"Avenue,Longmont,CO 80501 or such other place in Colorado as may be selected by the Members. The Company's initial registered agent at such address shall be Elizabeth. Scholten. The Members shall have the authority to change the registered agent at any time. 1.7. Members. The name, present mailing address,taxpayer identification number,and Percentage of each Member are set forth on Exhibit A. E rhtbtt A shall be amended as necessary to reflect changes in the membership. 2. Capital Contributions,Accounts,Withdrawals. 2.1. Capital Contributions. Upon execution of this Agreement,the Members of the Company shall each make their respective Capital Contributions in the amount and form indicated on Exhibit A. Unless otherwise provided herein, no Membership certificates shall be issued by the Company and this Agreement shall serve as evidence of Membership in the Company. Additional 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 04 Members may be admitted based upon the unanimous written consent of all the current Members,but no more that 100 units shall be issued. 2.2. Additional Capital Contributions. If the Members, at any time or from time to time,determine that the Company requires additional Capital Contributions, each Member shall contribute such Member's share of such additional Capital Contributions. A Member's share of the additional Capital Contributions shall be equal to the product obtained by multiplying the Member's Percentage, as set forth on Exhibit A as amended from time to time("Percentage"),and the total additional Capital Contributions required. Within thirty(30)days after the Members have determined the amount of additional Capital Contribution required,each Member shall pay the Member's share,in cash or by certified check,to the Company. 2.3. Default in Payment of Contributions. If a Member fails to pay when due all or any portion of any Capital Contribution,the Manager, elected pursuant to Paragraph 4,I,shall request the non- defaulting Members to pay the unpaid amount of the defaulting Member's Capital Contribution (the 'Unpaid Contribution"). To the extent the Unpaid Contribution is contributed by any other Member,the defaulting Member's Percentage shall be reduced and the Percentage of each Member who makes up the Unpaid Contribution shall be increased, so that each Member's Percentage is equal to a fraction,the numerator of which is that Member's total Capital Contribution and the denominator of which is the total Capital Contributions of all Members. The Manager shall amend Exhibit A accordingly. This remedy is in addition to any other remedies allowed by law or by this Agreement. Once a non-defaulting Member makes up a defaulting Member's contribution as provided in this Paragraph 2.3,the defaulting member shall have po right to restore such defaulting Member's Capital Account by reimbursing the non- defaulting Member for made up Unpaid Contribution without the prior written consent of that non-defaulting Member. 2.4. Maintenance of Capital Accounts. Except when modified pursuant to Paragraph 2.3, Me bers' Capital Accounts shall be kept in the same ratios as set forth on Exhibit A. If a Member's Capital Account shall become impaired, it shall be restored in as soon as practicable. (Increase or reduction of a Member's Capital Account pursuant to Paragraph 2.3 shall not be considered"impairment"for the purposes of this Paragraph 2.4.) 2.5. No luterest on Capital Contribution. Any person who holds a Membership Interest,whether as a Member, an unadmitted assignee of a Member,or a Member who has withdrawn or resigned, (collectively"Interest Holder"),shall not be paid interest on their Capital Contributions. 2.6. Distrf button of Assets. If the Company at any time Distributes any company property(other than money) in-kind to any Member,the Capital Account of each Member shall be adjusted to account for the Member's share of the net profits or net losses that would have been realized by the Cpmpany had it sold the assets that were distributed at their respective fair market values immediately prior to their distribution. 2.7, Form of Distribution. If an Interest Holder is entitled to receive a return of a Capital Contribution,the Company may distribute cash,notes,property, or a combination thereof to the Interest Holder in return of the Capital Contribution. 2.8. Compliance with Section 704(b). The provisions of this Paragraph 2 as they relate to the 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 05 maintenance of Capital Accounts are intended, and shall be construed,and,if necessary, modified to cause the allocations of profits, losses, income,gain and credit to have substantial economic effect under the regulations promulgated under Section 704(b)of the Internal Revenue Code(the"Code"), in light of the contributions and distributions by a Member. 2.9. 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. 3. Profits,Losses& Distributions. 3.1. Profits and Losses. Except as may be required by Section 704(c)of the Code and this Agreement,the Company's profits and losses shall be shared by the Members in the same proportions as their Membership Interest as set forth in Exhibit A. 3.2. Gains and Losses From the,Sale of Capital Assets. Gains or losses from the sale or exchange of capital assets of the Company,including any investments of the Company, shall be shared or borne among the Members in proportion to their Capital Accounts as set forth in Paragraph 2.4. 3.3. Distributions. 3.3.1, Each of the Members shall have an interest in the capital of the Company and share in distributions in proportion to their Percentage. In the absence of a unanimous agreement, all profits will distribute annually in accordance with the provisions of the Act. 3,3.2, Except as otherwise provided in this Agreement,the timing and amount of all distributions shall be determined by the Manager. 3.3.3, 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 Paragraph 3. 3.3.4. The Members are hereby authorized,upon the advice of the Company's tax counsel,to amend this Paragraph 2 to comply with the Code and the Regulations 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. 3.4. Net Profits and Loses Defined. Net profit and net loss means net profit or loss for U.S. Income Tax purposes determined in accordance with sound accounting principals and with the partnership's normal accounting policy. 3.5. Special Allocations. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in Section 1.704-1(b)(2Xiixdx4), Section 1.704 2(b)(2Xii))(d)(5),or Section 1.7041(b)(2)(ii)(d)(6)of the Treasury Regulations or any amendments thereto, items of Company income and gain shall be specially allocated to each 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 06 such Member in an amount and manner sufficient to eliminate,to the extent required by the Treasury Regulations,the deficit in such Member's Capital account as quickly as possible, provided that an allocation pursuant to this section shall be made only if and to the extent that such Member would have a capital account deficit after all other allocations provided for in this article have been tentatively made as if this section were not in the Agreement. 4. Management. 4.1. Generally. The company shall be managed by a Manager or Managers duly elected by the Members. The daily business and affairs of the Company, including all accounting,book and record keeping activities of the company shall be managed by the Accounts Manager. No other Person shall have any right or authority to act for or bind the Company except as permitted in this Agreement or as required by law. 4.2. Removal of Manager. If any one or more of the following events occurs,the Members may remove a Manager, and elect a new Manager or Managers to fill that position: 4.2.1. The Manager's willful or intentional violation or reckless disregard of the Manager's duties to the company;or 4.2.2. the Manager's Involuntary Withdrawal. 4.3. Limitations on Authority of Members. No Member is an agent of the Company solely by virtue of beitlg a Member, and no Member has authority to act for the Company solely by virtue of being a Member. Any Member who takes any action or binds the Company in violation of this Agreement shall be solely responsible for any loss and expense incurred by the Company as a result pf the unauthorized action and shall indemnify and hold the Company harmless with respect to the loss or expense. 5. Meetings of and Voting of Members. 5.1. Meetings Generally. A meeting of the Members may be called at any time by those Members holding at least ten percent (10%)of the percentages then held by Members. Meetings of Members shall be held at the Company's principal place of business or at any other place designated by the Members 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, at,or after the meeting the Member signs a waiver of the notice which is filed with the records of Members' meetings,or attends the meeting and fails to object to the lack of notice or defective notice, at the beginning of the meeting or at the presentation for consideration of a specific matter. Unless this Agreement provides otherwise,at a meting of Members,the presence in person or by proxy of Members holding not less that fifty-one percent(51%)of the Percentages then held by Members constitutes a quorum, 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. 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 07 5.2. Action Without Meeting. In lieu of holding a meeting,the Members may vote or otherwise take action by a written instrument indicating the consent of Members holding a majority of the Percentages then held by Members. 5.3. Voting. Except as otherwise provided in this Agreement,the affirmative vote of Members holding fifty-one percent(51%)or more of the Percentages then held by Members present at a meeting at which there is a quorum shall be required to approve any matter coming before the Members. 5.4. No Vote for Member in Default A Member's right to vote on any action of the Company shall be suspended so long as such Member is in default pursuant to any provision of this Agreement, including but not limited to,Paragraph 2.3. 5.5. Unanimous Consent Wherever the Act requires unanimous consent to approve or take any action,that consent shall be,given in writing and,in all cases, shall mean, rather than the consent 5.6. of all Members,the consent of Members holding fifty-one percent(51%)or more of the Percentages then held by Members. 5.7. Annual Meeting. An annual meeting shall be held each March at such day,time and place as the Manager shall fix. Notice shall be given to the Members in accordance with Paragraph 5.1. 5.8. Arbitration of Deadlock. If any vote is required on any matter under this Agreement,and there are neither sufficient votes to approve nor disapprove of the matter,then either party may require that the matter be submitted to arbitration in accordance with the rules of the American Arbitration Association. 6. Transferability of Membership Interests. 6.1. I,testeiction on Transfer. Except as otherwise provided in this Agreement,a Member shall not have the right to Transfer all or any part of such Member's rights in the Company, including a Member's: (i) share of the Profits and Losses of, and the right to receive distributions from,the Company ("Membership Interest"); (ii)right to inspect the Company's books and records;and (iii)right to participate in the management of and vote on matters coming before the Company (collectively"Membership Rights"). 6.2. Admission of Transferee As Member. Notwithstanding anything contained herein to the contrary,the transferee of all or any portion of or any interest or rights in any Membership rights or M bership Interest shall not be entitled to become a Member or exercise any rights of a Member. The transferee shall be entitled to receive,to the extent transferred, only the distributions to which the transferor would be entitled. The transferee shall be admitted as a member only upon the unanimous consent of the members, 7. Buy-Sell. 7.1. At any time after the first anniversary of the filing of the Articles of Organization for the Company with the Secretary of State,any Member(the"Offeror')may make an offer in wilting to the other Member(the"Offeree"), which shall state an amount (the"Buy-Sell Value"), determined in the sole and absolute discretion of the Offeror. The Buy-Sell Value shall be the 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 08 amount that the Offeror chooses to be the value of the Member's interest in the Company. An offer made pursuant to this Section 7 shall constitute an irrevocable offer by the Offeror to the Offeree either(1)to sell all,but not less than all, of the Offeror's interest in the Company or(ii) to purchase all,but not less than all, of the Offeree's interest in the company. The Offeree shall have thirty(30)days after receipt of an offer made pursuant to this Section 7 to elect either(i)to sell its interests in the Company at a price equal to the amount the Offeree would have received if the Company had been sold to a third party for the Buy-Sell Value(i.e.,the amount the Offeree would have received upon the liquidation of the company after repaying any debts and liabilities of the Company)or(ii)to buy the Offeror's interest in the Company at a price equal to the amount the Offeror would have received if the Property had been sold to a third party for the Buy-Sell Value(i.e.,the amount the Offeror would have received upon the liquidation of the company after repaying any debts and liabilities of the Company). If the Offeree fails to make such an election within thirty(30)days after receipt of an offer under this Section 7,the Offeree shall be deemed to have elected to sell its interest in the Company. 7.2. The purchasing Member shall,within five(5)business days after the election or deemed election referred to above, pay a cash deposit or post an irrevocable letter of credit or certificate of deposit equal to five percent(5%)of the aggregate purchase price of the selling Member's interest under this Agreement(the"Deposit'). The closing pursuant to this Section shall occur on thy 90th day after the election to purchase has been made, or at such earlier date as the purchasing Member may specify on ten(10)business days' prior written notice;provided, however,that each of the following(unless and except to the extent waived by the Purchasing Member) shall be a condition of the purchasing Member's obligations to proceed with any such purchase;(i)that the Company shall have continued to be operated in accordance with this Agreement and all other applicable agreements in all material respects hough the date of sale; (ii)that the purchasing Member shall have obtained all third-party consents required in connection with such sale;(iii)that there shall be no suit, action or proceeding pending on the date of sale before or by any court or governmental body seeking to restrain or prohibit,or seeking material damages or other relief; and(iv)that there shall have been no casualty or condemnation event that shall have occurred or been instituted. The Company shall indemnify, defend and hold harmless the selling Member against all liabilities of the Company that arise from pnd after the closing. The selling Member's interest shall be purchased and the purchase price shall be paid at a closing to be held at the principal business office of the company. At the closing, the selling Member's interest shall be duly conveyed, free of all liens and encumbrances, and the purchase price shall be paid by wire transfer of immediately available federal funds. At the election of the purchasing Member,the selling Member's interest may be acquired in the name of a nominee,provided,that(x)the purchasing Member shall have designated such nominee by written notice given at least three(3)Business Days prior to the date of purchase, and (y)unless the selling Member shall otherwise elect,both such nominee and the purchasing Member shall be required to join in any indemnities required to be given pursuant to this paragraph. In the event of the failure of the selling Member to proceed with.the closing as herein provided,the same shall constitute a default under this Agreement and the purchasing Member shall he entitled at their election,by written notice given to the selling Member within ten(10) business days after the date of such failure, either(k)to receive from the selling Member as liquidated damages an their exclusive remedy an amount equal to the Deposit(together with a return of the Deposit),or(1)to pursue any and all remedies available under this agreement or at law or equity, including specific performance. In the event of the failure of the purchasing Member(or their nominee)to proceed with the closing as herein provided, the selling Member may elect,by written notice given to the purchasing Member within twenty-five(25)business 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 09 days after the date of such failure,either(p)to receive the Deposit as liquidated damages or(q) to purchase from the purchasing Member their interests in the Company,subject to the terms and conditions set forth herein,except that the Buy-Sell Value(used to determine the purchase price) shall be reduced by twenty-five percent(25%). If the selling Member elects within the aforesaid ten(10)business day period to purchase the purchasing Member's interests in the Company,the closing shall occur no more than ninety(90)days after the election to purchase had been given, or at such earlier date as the electing Member may specify on five(5)Business Days prior written notice_ 7.3. If the determination of the Buy-Sell value produces a negative Buy-Sell value, and such negative Buy-Sell Value is the result of any obligation that recourse to the Member whose interest is being purchased,whether such recourse arises by the Member whose interest is being purchased, whether such recourse arises by agreement or by operation of law,then the selling Member under this Section 7 shall pay the amount of the negative Buy-Sell Value,to the extent caused by such recourse obligations,to the purchasing member in cash at the time and place of closing of the foregoing transaction. 7.4. Any obligation owed to the selling Member by the Company or any other Member shall be paid in flail and any guarantee made by the selling Member to the Company,any other Member or outside creditor shall be released prior to any sale pursuant to this Section 7. 8. Withdrawal, 8.1. Deflgition of Withdrawal. A Member's resignation or withdrawal from the Company will be defined as the formal relinquishment of the Membership Rights in the Company. 8.2 Right To Withdraw. Each Member waives their right to withdraw or resign from the entity. Pursuant to this waiver no Member can withdraw or resign from the entity without the unanimous consent of the Membership. 8.3 Wrongful Withdrawal. Members who withdraw from the Company waive their statutory right to a return of their capital contributions if they leave the Company without the unanimous consent of the Membership. 8.4 Death of A Member. In the event of the death of a Member,the deceased Member's heir or heirs shall be entitled to succeed to the Membership Interest of the deceased Member. Such heir or heirs shall have no right to participate in the management of the Company without the unanimous consent of the remaining Members. 9. Dissolution pnd Winding Up. 9.1. The Company shall be dissolved only upon affirmative vote of Members holding more than 50% of the outstanding Membership Interests. 9.2. Procedure for Winding Up. If the Company is dissolved,the Managers shall wind up its affairs. On winding up of 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 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 10 flow or capital proceeds; and then to the Interest Holders in proportion to their respective Capital Accounts in accordance with Section 3. 10. Books,Records and Accounting. 10.1. Books and Records. The Manager 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(1)maintained in accordance with the requirements of Section 7-80-411 of the Act;(2)maintained in accordance with sound accounting practices,and(3)available at the Company's principal office for inspection and copying at the reasonable request,and at the expense,of any Member during ordinpry business hours. 10.2. Bank Accounts. All funds of the Company shall be deposited in a bank account or accounts opened in the Company's name. The Manager 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. 10.3. Anngal Accounting Period. The annual accounting period of the Company shall be the calendar year. 10.4. Reports. Within, seventy-five(75) days after the end of each taxable year of the Company,the Accounts Manager 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 Accounts Manager shall cause to be sent to each person who was an Interest Helder 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 Manager shall cause an audit of the Company's books and records to be prepared by independent accountants for the period requested by the Member. It Miscellaneous Provisions. 11.1. Amepdment This Operating Agreement may be amended or modified from time to time only by a written instrument adopted and executed by a majority of the Members. 11.2. Assurances. Each member shall execute all certificates and other documents and shall do all such Filing,recording,publishing, and other acts as the Managers 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. 11.3. Notifications. Any notice,demand,consent,election,offer,approval,request or other communication(collectively a"notice")required or permitted under this Agreement must be in writing and either delivered personally,mailed or faxed. Any notice to be given hereunder by the Company shall be given by the Manager. A notice must be addressed to an Interest Holder at the Interest Holder's last known address or fax number on the records of the Company. A notice 05/09/2005 10:26 3037726714 •SCHOLTEN ENTERPRISES PAGE 11 • to the Company must be addressed to the Company's principal office. A notice that is sent by mail will be deemed given three(3)business days after it is mailed. Any party may designate, by notice to all of the other parties and to the Company, substitute addresses or addresses for notices; fax numbers and,thereafter,notices are to be directed to those substitute addresses or addressees. 11.4. Specific Performance. The parties recognize that irreparable injury will result from a breach of any provision of this Agreement and that money damages will be inadequate to tltlly remedy the injury. Accordingly, in the event of a breach or threatened breach of one or more of the provisions of this Agreement, 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. 11.5. Complete Agreement. This Agreement constitutes the complete and exclusive statement of the agreement among the Members with respect to the matters which are the subject of this Agreement and supersedes all prior written and oral agreements,understandings and statements, including any prior representation, statement,condition, or warranty,with respect thereto. Except as expressly provided otherwise herein,this Agreement may not be amended without the written consent of all of the Members. 11.6. Applicable Law. ALL QUESTIONS CONCERNING THE CONSTRUCTION,VALIDITY, AND INTERPRETATION OF THIS AGREEMENT AND THE PERFORMANCE OF THE OBLIGATIONS IMPOSED BY THIS AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAW, OTHER THAN THE LAW AS TO CONFLICTS OF LAW,OF THE STA'G'E OF COLORADO. 11.7. Paragraph Titles. The headings herein are inserted as a matter of convenience only and do not define, limit, or describe the scope of this Agreement or the intent of the provisions hereof. 11.8. Binding Provisions. This Agreement 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. 11.9. Jurisdiction and Venue. Any suit involving any dispute or matter arising under this Agreement 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. 11.10. Separability of Provisions. Each provision of this Agreement shall be considered separable; and if, for any reason, any provision or provisions herein are determined to be invalid and contrpry to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid. 05/09/2005 10:26 3037726714 SCHOLTEN ENTERPRISES PAGE 12 11.11. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original and all of which,ich,y �u�ke shatogether,th r, constitute One and the same document. The signature of any party signature to, and may be appended to, any other counterpart. Is — 21 - 01 DATED: ,/ p x a_ c) David G.Dalglish Karla L Dalglish R berry D.Niemeyer • 17---,S7 beth J. 3ch sager Ito - , h Ices Hello