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HomeMy WebLinkAbout09119RESOLUTION NO. 9119 A RESOLUTION APPROVING AN AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND McCALL1N DIVERSIFIED INDUSTRIES, INC. DBA TIMBERLINE INDUSTRIES, INC. AND McCALL1N REAL ESTATE, LLC RELATING TO A JOB CREATING CAPITAL IMPROVE- MENT PROJECT AND AUTHORIZING THE TRANSFER OF LAND AND THE EXPENDITURE OF $155,000 THEREFOR FROM THE 1992 -2001 SALES AND USE TAX CAPITAL IMPROVEMENT PROJECTS FUND AND REPEALING RESOLUTION NO. 8953 WHEREAS, McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC (the "Company ") has expressed a willingness to locate its steel fabrication business activities at the Pueblo Memorial Airport Industrial Park and has committed to employ fifty (50) full time employees, and WHEREAS, Company through the Pueblo Economic Development Corporation has made application for funds from the 1992 -2001 Sales and Use Capital Improvement Projects Fund and conveyance of land at Pueblo Memorial Airport Industrial Park, and WHEREAS, the land requested to be conveyed is surplus to the City's needs, and WHEREAS, the City Council is willing to approve such application for funds upon the terms and conditions set forth herein; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The City Council does hereby find and determine that McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC's application for funds meets and complies with the criteria and standards established by Ordinance No. 6381 and will create employment opportunities justifying the expenditure of public funds. SECTION 2 The Agreement dated as of September 25, 2000 between Pueblo, a municipal corporation and McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC and Warranty Deed and Easements attached thereto as Exhibits A, B and C respectively, having been approved as to form by the City Attorney, and the Warranty Deed described in paragraph 9 of the Agreement are hereby approved. The President of the City Council is authorized to execute and deliver the Agreement, Warranty Deed, and Easements and the Warranty Deed described in paragraph 9 of the Agreement, in the name of the City, and the City Clerk is authorized and directed to affix the seal of the City thereto and attest same. SECTION 3 Funds in an amount of $155,000 are hereby authorized to be expended and made available to McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC out of the 1992 -2001 Sales and Use Tax Capital Improvement Projects Fund for the sole purpose of the job creating capital improvement project and in the manner described in the attached Agreement. The funds hereby authorized to be expended shall be released and paid by the Director of Finance to or for the benefit of McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC after receipt (i) by the City Clerk of the documents required to be filed pursuant to paragraph 2(e) of the Agreement and (ii) by the Director of Finance of written requests for payment required by paragraph 2(f) of the Agreement. SECTION 4 The Easement granting an easement to the Board of Water Works of Pueblo, Colorado over the easterly 15 feet of Lots 53, 54 and 55 and the westerly 15 feet of the adjacent Parcel Q, Pueblo Memorial Airport Industrial Park Subdivision in connection with this transaction, a copy of which is attached hereto, having been approved by the City Attorney as to form, is hereby approved. The -2- President of the City is authorized to execute the Easement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 5 Resolution No. 8953 is hereby repealed. SECTION 6 This Resolution shall become effective upon final passage. ATTEST: 1 City C INTRODUCED: September 25, 2000 By Rich Golenda Councilperson APPR ) VED: President of the City Council F:\ CITY \AIRPORT \MCCALLIN\RSOLUTN2. WPD -3- SEPTEMBER 25, 2000 AGENDA CITY COUNCIL BACKGROUND MEMORANDUM RESOLUTION APPROVING AGREEMENT WITH McCALLLIN DIVERSIFIED INDUSTRIES, INC. DBA TIMBERLINE INDUSTRIES, INC. AND McCALLIN REAL ESTATE, LLC RELATING TO A JOB CREATING CAPITAL IMPROVEMENT PROJECT AT PUEBLO MEMORIAL AIRPORT INDUSTRIAL PARK A Resolution is being presented to City Council for approval of an Agreement with McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. and McCallin Real Estate, LLC (the "Company "). The City Council by Resolution No. 8953 previously approved this transaction. However, the land to be conveyed based upon engineering studies was not acceptable to Company. Other land will be conveyed under this Agreement together with easements for use in conjunction with the Company's use of the land. Company intends to locate its steel fabrication business at Pueblo Memorial Airport and has committed to employ 50 full -time employees during a 7 year Repayment Period starting no later than January 1, 2002. Company's Employment Commitment is staggered during the first three years of the seven year Repayment Period. City will advance $155,000 to Company ( "City Funds "). Company will spend City Funds for constructing a rail spur and cost of overhead cranes for its steel fabrication business to be conducted in an approximately 40,000 square foot facility to be constructed by Company and for the removal of power lines on approximately 4.8 acres of land at Pueblo Memorial Airport Industrial Park to be transferred by City to Company. If Company defaults in its employment commitment during the 7 year repayment period starting no later than January 1, 2002, Company shall repay to City a pro -rata share of City Funds based upon employees actually employed by Company. Company's repayment obligation is not secured. The financial details of Company's project including job commitment and repayment obligations were negotiated by Pueblo Economic Development Corporation ( "PEDCO "). PEDCO evaluated the business and financial ability of Company to fulfill its employment commitment, financial and other contractual obligations under Company's Agreement, and recommended that the City Council approve Company's project and related transactions. AGREEMENT THIS AGREEMENT entered into as of September 25, 2000 between Pueblo, a municipal corporation (the "City ") and McCallin Diversified Industries, Inc., a Colorado Corporation doing business as Timberline Industries, Inc. and McCallin Real Estate, LLC, a Colorado corporation (collectively the "Company "). WHEREAS, Company has expressed a willingness to locate its business within the Pueblo Municipal Airport Industrial Park, and in furtherance thereof has through the Pueblo Economic Development Corporation made application for funds and land with the City, and WHEREAS, the City has approved such application and will make funds and land available to Company subject to and upon the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing and mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, City and Company agree as follows: 1. The following terms as used in this Agreement shall have the following meaning unless the context clearly indicates otherwise: "Construction" means the construction and installation of the Facility. "Employment Commitment Date" means the earlier of (i) the first day of the twelfth (12th) calendar month after the calendar month in which the certificate of occupancy is issued for the Facility, or (ii) January 1, 2002. "Facility" means the approximately 40,000 square foot building and rail spur to be constructed by Company on the Land. "Full -Time Employee" means a person who actually performs work at the Facility for not less than thirty-two (32) hours per week whether employed by Company or by an outside entity acting as an agency to provide Full -Time Employees for Company. The term "Full -Time Employee" does not include independent contractors nor employees of independent contractors except as described herein. "Land" means Lots 54 and 55, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. "Quarter" means three consecutive calendar months commencing January 1, April 1, July 1 and October 1 of each calendar year. "Quarterly Employees" means the sum of the number of Full -Time Employees on each business day of a Quarter divided by the sum of the business days in such Quarter. EACH QUARTER DURING THE FOLLOWING YEARS AFTER THE EMPLOYMENT COMMITMENT DATE First Second Third Fourth and Thereafter NUMBER OF FULL -TIME EMPLOYEES EMPLOYED AT THE FACILITY 10 20 35 50 4. Notwithstanding anything contained herein to the contrary, if Company shall for any reason default in its Employment Commitment set forth in paragraph 3 hereof, Company shall repay to City a pro -rata share of the City Funds advanced by City under paragraph 2 hereof based upon the number of Full -Time Employees employed by Company at the Facility (the "Repayment Obligation "), as follows: (a) During the seven (7) year period starting on the Employment Commitment Date and ending eighty -four (84) months thereafter (the "Repayment Period ") Company shall pay to City an amount each Quarter equal to the Quarterly Employees less than the number of Full -Time Employees set forth in the schedule contained in paragraph 3 above, employed at the Facility by Company multiplied by $110.72 (the "Company's Quarterly Payments "). For example, if for the second Quarter of the third year after the Employment Commitment Date the Quarterly Employees is 25, the amount payable by Company to City on or before the fifteenth (15th) day of the next calendar month would be (35 - 25) x $110.72 = $1107.20. (b) Company's Quarterly Payments, if any, shall be paid to the City without notice, demand, deduction or setoff on or before the fifteenth (15th) day of the month after the end of each Quarter during the Repayment Period and for one month thereafter at the office of the Director of Finance of City, 1 City Hall Place, Pueblo, Colorado, 81003. All past due Company's Quarterly Payments shall bear interest at the rate of ten (10) percent per annum until paid. (c) Within fifteen (15) days after the end of each Quarter after the Employment Commitment Date and for one calendar month after the Repayment Period, Company will submit to City's Director of Finance Company's statements showing the Quarterly Employees for the preceding Quarter and the basis upon which Quarterly Employees and Company's Quarterly Payment, if any, were computed certified by an officer of the Company to be true and correct. For purposes of verifying such employment, City shall have access to Company's payroll records relating to Company's employment at the Facility. City will, however, respect the right of employees and Company as to confidentiality of personnel records. (d) If Company defaults in its Repayment Obligation, and such default is not cured within sixty (60) days after written notice specifying the default is given by City to Company, then in such event, City may declare the entire balance of Company's Repayment Obligation due and owing together with interest thereon at the rate of ten (10) percent per annum, and for such purpose, the entire balance of Company's Repayment Obligation shall be an amount equal to 50 times $110.72 multiplied by the remaining Quarters of the Repayment Period plus the amount of Company's unpaid -3- Quarterly Payments, if any, but in no event more than the amount of City Funds advanced by City under paragraph 2 hereof and interest as herein provided. Company's Repayment Obligation is absolute and unconditional and shall not be abated, reduced, diminished, modified, withheld or otherwise offset for any cause or reason whatsoever. 5. All City Funds advanced to Company by City under this Agreement shall be deemed to be a debt of Company payable to City until Company performs and discharges its obligations hereunder including its Repayment Obligation contained in paragraph 4. 6. (a) Prior to instituting any proceeding to enforce Company's Repayment Obligation under paragraph 4, City shall notify Company in writing of its intention to institute such proceedings. Company may request relief from its Repayment Obligation by delivering to City within twenty (20) days after date of City's notice, Company's written request for relief specifying the grounds upon which such relief is sought together with documents supporting said grounds. Within ninety (90) days after receipt of Company's request, City will schedule a meeting with the City Council at which Company may appear. City will notify Company of the time and place of the meeting. Failure of Company to timely deliver its complete written request for relief or to appear at the scheduled meeting with the City Council shall entitle City to immediately institute proceedings to enforce Company's Repayment Obligation. (b) City Council may or may not, in its sole and absolute discretion, relieve Company, in whole or in part, from Company's Repayment Obligation. Any action taken by the City Council relating to a request for relief shall be final and binding on Company, and not subject to judicial review. Any such action by City Council is, and shall constitute, a legislative measure. Nothing contained in this paragraph 6 shall grant or be construed to grant to Company any right or claim to relief from its Repayment Obligation or hearing with respect thereto. (c) No delay by the City in scheduling a meeting, or failure by City to exercise its right to enforce this Agreement, including Company's Repayment Obligation, and no partial or single exercise of that right, shall constitute a waiver of that right, unless the City Council otherwise expressly provides in its findings and decision made pursuant to paragraph 6(a). 7. Within thirty (30) days after date of Closing, City will convey the Land to McCallin Real Estate, LLC subject to and contingent upon the following: (a) Conveyance will be made by general warranty deed substantially in the form of attached Exhibit "A "; (b) Conveyance will be contingent upon prior approval of the Federal Aviation Administration and its issuance of all Deed of Release therefor; and (c) The Land will be conveyed and transferred by the City and accepted by Company in its condition on the date of the Warranty Deed "AS IS" and "WHERE IS ", with all its ra faults, without any representation or warranty, expressed or implied, by operation of law or otherwise, with respect to the Land, including without limitation, the quantity, quality, or condition of the Land, environmentally or otherwise, or its fitness for Company's contemplated uses, or the compliance of the Land with applicable building, fire, zoning, environmental, or other laws or regulations. City and Company agree that the provisions of this paragraph shall survive the closing of the transfer of the Land, and the execution of any documents in connection therewith. 8. Contemporaneously with the delivery of the Warranty Deed as provided in paragraph 7 above, City will execute and deliver to McCallin Real Estate, LLC, the Easements attached hereto as Exhibits "B" and "C." 9. Company is granted the option to acquire Lot 53, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado ( "Lot 53 ") upon giving to City written notice of exercise of option (the 'Notice ") on or before September 1, 2001. Within sixty (60) days after timely receipt of Company's Notice by City, City will convey Lot 53 to Company subject to and contingent upon the following: (a) Conveyance will be made by general warranty deed substantially in the form of warranty deed attached hereto. (b) Conveyance will be contingent upon prior approval of the Federal Aviation Administration and its issuance of all Deeds of Release therefor; and, (c) Lot 53 will be conveyed and transferred by City and accepted by Company in its condition on the date of the Warranty Deed "AS IS" and "WHERE IS ", with all its faults, without any representation or warranty, expressed or implied, by operation of law or otherwise, with respect to Lot 53, including without limitation the quality, quantity, or condition of Lot 53, environmentally or otherwise, or its fitness for Company's contemplated use, or the compliance of Lot 53 with applicable building, fire, zoning, environmental, or other laws or regulations. City and Company agree that the provisions of this paragraph shall survive the closing of the transfer of Lot 53, and the execution of any documents in connection therewith. 10. In the event of any litigation arising out of this Agreement, the court shall award to the prevailing party its costs and reasonable attorney fees. Venue for any such litigation shall be in Pueblo County, Colorado. All such litigation shall be filed in the District Court, County of Pueblo, State of Colorado and each party submits to the jurisdiction of that Court. To the extent allowed by law, each party waives its right to a jury trial. 11. This Agreement expresses the entire understanding of the parties and supersedes any and all prior dealings and commitments with respect to the subject matter of this Agreement and may not be amended except in writing signed by City and Company. 12. This Agreement shall be construed in accordance with and governed by the laws of -5- the State of Colorado without regard to conflict of law principles. 13. The covenants, representations and warranties made by each party herein shall survive the Closing for the benefit of the other party. 14. Company acknowledges and agrees that City reserves the right, without any obligation on its part to do so, to maintain and keep in repair the landing area of the airport and other public areas or facilities at Pueblo Memorial Airport and to develop, modify, change, relocate, abandon, or improve the Pueblo Memorial Airport, or any part thereof as it may determine in its sole and absolute discretion, at any time, and Company further acknowledges and agrees that City has not made, nor by any provision of this Agreement shall City be construed to have made any representation or warranty to the contrary with respect thereto. 15. Any notices hereunder shall be sufficiently given if given personally or mailed by first class mail, postage prepaid, addressed: (a) if to City, City Manager, City of Pueblo, 1 City Hall Place, Pueblo, Colorado, 81003, with copy to Thomas E. Jagger, City Attorney, 127 Thatcher Building, Pueblo, Colorado, 81003, or (b) if to the Company, 6245 Clermont Street, Commerce City, Colorado, 80022, or to such other address as either party shall specify in written notice given to the other party. 16. Time is of the essence hereof. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided Company may not assign this Agreement or any interest herein without the express written consent of the City, which consent may be arbitrarily withheld, conditioned or delayed. Any assignment or attempted assignment of this Agreement by Company without such consent shall be null and void. 17. The persons signing this Agreement in the name of and on behalf of Company represent and warrant that they and Company have the requisite power and authority to enter into, execute, and deliver this Agreement, and that this Agreement is a valid and legally binding obligation of Company enforceable against Company in accordance with its terms. 18. Company represents and warrants that no person, entity, or organization has been employed or retained or will receive or be paid, directly or indirectly, any commission, percentage, contingent fee or any other remuneration payment or receipt of which is contingent upon approval of this Agreement or City's advancement of funds to Company hereunder. For breach or violation of this warranty, City shall have the right to terminate this Agreement, or recover the full amount of such commission, percentage, contingent fee or other remuneration, or to seek such other remedies legally available to City, which remedies shall be cumulative. W 19. In no event shall City, its officers, agents or employees be liable to Company for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Company hereby waives and discharges City, its officers, agents and employees from any and all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver or release of Company's Repayment Obligation under paragraph 4 hereof with respect to the amount of City Funds actually advanced or paid by City to or for the benefit of Company pursuant to paragraph 2 hereof. Company shall have the right to file an action to specifically enforce City's obligations under this Agreement without showing or proof of an inadequate remedy at law. 20. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. 21. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the other provisions of this Agreement which shall remain in full force and effect. 22. The Agreement dated March 17, 2000 between City and Company is hereby canceled and superseded by this Agreement, and both parties are released and discharged from all obligations under the March 17, 2000. Executed at Pueblo, Colorado, the day and year first above written. [SEAL] Pueblro, a Munici�al Corporation t 1 Attest: P i- , By t t'' �1l < 1 f City C President of the City Council [SEAL] Attest: ,. Name: Title: [SE L] r Attest: Name: Title: %C lwwo McCallin Diversified Industries, Inc. dba Timberline Industries, Inc. tt � 7 Name: r 7 - #qAc Title: McCallin Real Estate, LLC By /, ; r ' ) C i Name: r . (.. -,�,�,_ 11b. Title: A 1,o ; .., c -7- Reso. #9119 1111111111111111111111111111111111111111 1352240 10/02/2000 09:59A EASE Chris C. Munoz 1 of 2 R 10.00 D 0.00 Pueblo C!y Clerk & Rec EASEMENT THIS EASEMENT, granted this 25th day of September , 2000, by PUEBLO, a Municipal Corporation, Grantor, to Pueblo, a Municipal Corporation for the use and benefit of the Board of Water Works of Pueblo, Colorado, pursuant to Article 15 of the Charter of Grantor whose legal address is Pueblo County, Colorado, Grantee: WITNESSETH: THAT IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable consideration, paid by the Grantee, receipt of which is hereby acknowledged, Grantor hereby grants to Grantee, its successors and assigns, a thirty (30) foot easement for the purpose of constructing, maintaining, changing, renewing and operating a subsurface water main or water mains for the conveyance and carriage of water, in, through, under and across Grantor's property situated in Pueblo County, Colorado, and described as follows: The Easterly fifteen (15) feet of Lots 53, 54 and 55 and the westerly fifteen (15) feet of Parcel Q adjacent to said Lots 53, 54 and 55, Pueblo Memorial Airport Industrial Park Subdivision. TOGETHER WITH the right to enter upon said property for the purpose of construction, maintenance, and repair, and together with the right to reasonably use so much of the abutting property of Grantor for said purpose. The Grantor reserves the right to use and occupy said property for any purpose consistent with the right and privilege above granted and which will not interfere with Grantee'S use of the property for subsurface water mains. Grantee acknowledges and agrees that in no event will it locate, erect or cause to be located or erected any building, mobile trailer unit, or any other structures upon said easement. Grantor shall have the right to remove any such building or structure at Grantee's expense. To the fullest extent legally permissible, Grantee agrees to indemnify and hold harmless the Grantor from any and all claims, expenses, liabilities, loss, or damage to property or injury to or death of persons, caused by or arising out of the construction, installation or maintenance of the water mains, or use of the easement hereby granted by Grantee, its employees, agents or contractors. This easement shall be binding upon, and shall inure to the benefit of the successors or assigns of the Grantor and Grantee. In case of abandonment of said easement or non -use of the Easement for the above purpose, for a continuous period of five years, all rights, privileges, and interest granted herein shall terminate. e . ATTEST:- BY City C •k P JBO, a Muni ' al Corporation 4 President of the City Council COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) The foregoing instrument was acknowledged before me in Pueblo County, Colorado this 27th day of September , 2000 by Corinne Koehler as President of the City Council and by Gina Dutcher as City Clerk of Pueblo, a Municipal Corporation. Witness my hand and official seal. MY-commission expires: 8 -21 -2000 J ota4ryPublic I IIIIII I'I'I IIIII I'I'I IIIIII IIIII IIIIII III IIIII IIII IIII 1332240 10/02/2000 09:39A EASE Chris C. Munoz 2 of 2 R 10.00 D 0.00 Pueblo Cty Clerk & Ree F : \CITMIRPORT\MCCALLIN\EASEMENT. WPD -2- Reso. #9119 1 111111 11111 VIII 111111 1111 111'1 1111111 III 11111 IIII IIII 1355777 10/23/2000 09:21A EASE Chris C. Munoz 1 of 3 R 15.00 D 0.00 Pueblo C!y Clerk & Ree EASEMENT THIS EASEMENT, granted this x ,25 �� day of _�i�% , 2000, by Pueblo, a Municipal Corporation, GRANTOR, to McCallin Real Es ate, LLC, a Colorado limited liability company, GRANTEE: WITNESSETH: THAT IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable consideration, paid by the GRANTEE, receipt and sufficiency of which is hereby acknowledged, GRANTOR hereby grants to GRANTEE, its successors and assigns, an easement for the purpose of vehicular access and vehicular parking on, over, and across GRANTOR's property situated in Pueblo County, Colorado, and described in Exhibit "A" attached hereto; subject to the right of GRANTOR to use and occupy said property for any purpose not inconsistent with the right and privilege above granted and which will not materially interfere with GRANTEE'S use of the property. GRANTEE acknowledges and agrees that the easement hereby granted shall be used for the aforesaid purposes only for the benefit of and in conjunction with the use of the adjacent Lots 54 and 55, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. If the easement is not used for said purposes for a continuous period of two years, all right, privilege and interest granted hereby shall cease and terminate. GRANTEE further acknowledges and agrees that in no event will it locate, erect or cause to be located or erected any building, mobile trailer unit, or any other structure upon said easement. GRANTEE agrees to indemnify and hold harmless the GRANTOR from any and all claims, expenses, liabilities, loss, or damage to property or injury to or death of persons, caused by or arising out of the construction, installation, maintenance, or use of the easement hereby granted. This easement shall be binding upon, and shall inure to the benefit of the successors and assigns of the GRANTOR,. VOPRAN` Eg-, M' 4 ► V A± � [ S E�.X j P 1 I O, a Mun'ci al Co oration l/ ATTE 1 ; '� By h �'� r: resident of the City Council City j if!r �• [SE #,L] M 1 0 " Am Name: � I c) ,q�-6j /B • (5� S McCALLIN REAL ESTATE, LLC Name: 17.E -a i` Title: E Title: &1 P- -* L _. Reso. #9119 I IIIIII VIII VIII IIIIII IIII VIII IIIIIII III VIII IIII COUNTY OF PUEBLO ) 1355777 10/25/2000 09:21A EASE Chris C. Munoz ss. 2 of 3 R 15.00 D 0.00 Pueblo Cty Clerk & Ree STATE OF COLORADO ) The foregoing instrument was acknowledged before me this day of 2000 by Corinne Koehler as President of the City Council and by Gina Dutcher as City Clerk of Pueblo, a Municipal Corporation. ss my hand and official seal. P% ©; M commission expires: - 2 C. c�:t Notary Public > °j rs" iw C86 Y OF ss. STATE OF COLORADO ) The regoing instrument was acknowledged before me this Ii day of , 2000 by as and as of McCallin Real Estate, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires [S E A L] a i Lo *.. F:\ CITY \MRPOR'RMCCALLIN\EASEMNT l . WPD -2' D..-SO. #9119 111111(IIII IIIiI 111111 IIII 11111 HIM 111 111111111 IN 1355777 10/25/2000 09:21A EASE Chris C. 3 of 3 R 15.00 D 0.00 Pueblo Cl.y Clerk & Ree Exhibit A A parcel of land located within the East one -half of Section 30, Township 20 South, Range 63 West of the 6th Principal Meridian, County of Pueblo, State of Colorado, being a portion of Parcel Q, Pueblo Memorial Airport Industrial Park Subdivision, as filed for record in Book 2836 at Page 669, Pueblo County Records and being more particularly described as follows: Beginning at a point at the most Southerly corner of said Parcel Q, said point also being on the Northerly right of way line of Lockheed Street; Thence N 46 °31'41" W, along the southwesterly line of said Parcel Q, a distance of 600.13 feet, Thence N 43 °28'19" E, departing said southwesterly line, a distance of 98.03 feet to a point on the easterly line of said Parcel Q, said point also being the Westerly corner of Lot 56 of said Pueblo Memorial Airport Industrial Park Subdivision, from which the Northwest corner of said Lot 56 bears N 01'33'02" W, a distance of 324.18 feet; Thence S 46 °31'41" E, along said easterly line of said Parcel Q, a distance of 555.07 feet, to a point on the northerly right of way line of Lockheed Street, said point also being at the beginning of a non - tangent curve to the right having a central angle of 59° 36'49 ", a radius of 85.00 feet and from which a radial line bears S 48 °54'53" E; Thence southwesterly along said curve and along said right of way, a distance of 88.44 feet; Thence S 43 °23'57" W, continuing along said right of way, a distance of 28.52 feet, to the Point of Beginning of this description; EXCEPT AND EXCLUDING the easterly thirty (30) feet of the above described property. - Reso. #9119 IIIIII 1355778 10/23/2000 09:21A EASE Chris C. Munoz 1 of 2 R 10.00 D 0.00 Pueblo Cl.y Clerk 8 Ree EASEMENT THIS EASEMENT, granted thi day of Ypgj�rM � ( , 2000, by Pueblo, a Municipal Corporation, GRANTOR, to McCallin Real Estate, LLC, a Colorado limited liability company, GRANTEE: WITNESSETH: THAT IN CONSIDERATION of the sum of One Dollar ($1.00) and other good and valuable consideration, paid by the GRANTEE, receipt and sufficiency of which is hereby acknowledged, GRANTOR hereby grants to GRANTEE, its successors and assigns, an easement for the purpose of constructing, operating and maintaining a railroad spur on, over, and across GRANTOR's property situated in Pueblo County, Colorado, and described as the westerly twenty -five (25) feet of Lot 53, Pueblo Memorial Airport Industrial Park Subdivision; subject to the right of GRANTOR to use and occupy said property for any purpose not inconsistent with the right and privilege above granted and which will not materially interfere with GRANTEE'S use of the property. GRANTEE acknowledges and agrees that the easement hereby granted shall be used for the aforesaid purposes only for the benefit of and in conjunction with the use of the adjacent Lots 54 and 55, Pueblo Memorial Airport Industrial Park Subdivision, Pueblo County, Colorado. If the easement is not used for said purposes for a continuous period of two years, all right, privilege and interest granted hereby shall cease and terminate. GRANTEE agrees to indemnify and hold harmless the GRANTOR from any and all claims, expenses, liabilities, loss, or damage to property or injury to or death of persons, caused by or arising out of the construction, installation, maintenance, or use of the easement hereby granted. This easement shall be binding upon, and shall inure to the benefit of the successors and assigns of the GRANTOR and GRANTEE. [ S;t A L PUV�L�, a Mun' i l Corporation J ATTF i' � By - ' President of the City Council City C [SEAL] McCALL1N REAL ESTATE, LLC Attest: NamevJBL4' 16 - 6_7 ASf Title: 4 11 1 _ 1Y �x /) i , (.4,­ Name: ". C —__ Title: /; ) 4 # A ­ - Reso. #9119 COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) 1 1 1355778 10/25/2000 09 2 of 2 R 10.00 D 0.00 11111 HIM III IIII II I I IN 21A EASE Chris C. Munoz Pueblo C!y Clerk & Ree The foregoing instrument was acknowledged before me this j day of � ' ; ? 1 2000 by Corinne Koehler as President of the City Council and by Gina Dutcher as City Clerk of Pueblo, a Municipal Corporation. Wj*ess my hand and official seal. 1Vty�coximission expires: i - CO j ALf tary Public " 1 COUNTY' P ) s3. STATE OF COLORADO ) The fore goin insti ent as acknowledged before me this day of , 2000 y as and as yh of McCallin Real Estate, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: / 0 [SEAL] 3% 4� d -{ Notary Public '''•••• ' Y QT F : \CIT"IRPORT\MCCALLIN\EASEMNT2. WPD -2- Reso. #9119 111111111111 ON 1111111111 111111111111111 11111 IN IN 1335779 10/23/2000 09:21A WD Chris C. Mun 1 of 5 R 25.00 D 0.00 Pueblo C!y Clerk & Roe WARRANTY DEED THIS DEED, made this day of �Y rh b rr— , 2000 by and between Pueblo, a Municipal Corporation (herein "City ") and McCallin Real Estate, LLC, a Colorado limited liability company (herein "Company "), WITNESSETH: That City for and in consideration of the sum of $10.00 and other good and valuable consideration to City in hand paid by the Company, the receipt whereof is hereby confessed and acknowledged, has granted, bargained, sold and conveyed, and by these presents does grant, bargain, sell, convey and confirm unto the Company, its successors and assigns forever, all the real property situate, lying and being at Pueblo Memorial Airport, County of Pueblo, State of Colorado, more particularly described as Lots 54 and 55, Pueblo Memorial Airport Industrial Park Subdivision (herein "Property "), with all its appurtenances, and warrant the title to the same, subject to easements, rights of way, conditions, restrictions and reservations of record and easements for existing utilities, sanitary sewer, water, irrigation and natural gas lines on, over or under the Property and to the following covenants, conditions, and restrictions which are and shall be construed to be covenants running with the land described herein and binding upon the Company, its successors and assigns and inuring to the benefit of the City, its successors and assigns. City reserves unto itself and its successors and assigns, for use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Property, together with the right to cause in the airspace above the surface of the Property such noise as be inherent in the operation of any aircraft now known or hereafter used for navigation of or flight in Reso. #9119 1111111 IIIII 111111111111111'11111111111 III 111111111 111111 IN 1335779 10/25/2000 09:21A WD Chris C. Munoz 2 of 5 R 25.00 D 0.00 Pueblo Cty Clerk & Ree said airspace, and for use of the airspace above the surface of the Property for landing on, taking off from, or operation on or over the Pueblo Memorial Airport. 2. Company expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the Property, to a height of not more than 4,690 feet above the mean sea level. In the event this covenant is breached, City reserves the right to enter upon the Property at the expense of the Company to remove the offending structure or object and to cut the offending growth. 3. Company expressly agrees for itself, its successors and assigns, that it will prevent any use of the Property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. 4. The Property and its use are further subject to the following Restrictive Covenants: (a) The Property may be used only for industrial and manufacturing facilities and incidental office uses. The Property shall not be used for smelting or plating operations, or for the storage or processing of putrescible materials, or for any purpose or business which constitutes a nuisance, or which exceeds the state air pollution control standards for the facility. Gasoline or diesel fuel used in connection with the business conducted on the Property but not for sale at retail or wholesale may be stored on the Property in an environmentally sound manner. (b) Outdoor storage shall not be permitted except for storage of raw materials, inventory, manufactured products, or equipment used in the facility. Parking areas for vehicles and roads on the Property shall be paved. (c) The Property shall not be subdivided and no building or structure over sixty (60) feet in height shall be installed or constructed on the Property. (d) No structure or building shall be constructed or installed nearer than thirty-five (35) feet of the right of way line of any abutting streets. There must be installed and maintained a minimum twenty -five (25) foot strip of living landscaped ground along and adjacent to abutting streets. Minimum side -yard and rear -yard setbacks shall be twenty -five (25) feet. (e) Company shall keep and maintain the Property and all buildings, landscaping and improvements located thereon in a good, clean, safe and orderly condition free of waste, rubbish, -2- Reso. #9119 1111111111111111111111111111111111111111 1355779 10/25/2000 09:21A WD Chris C. Munoz 3 of 5 R 25.00 D 0.00 Pueblo Cty Clerk & Rec debris and trash, and enclose and screen from public view all outside storage and unsightly areas of the Property. (f) Company shall comply with notifications and review requirements of the Federal Aviation Administration prior to the construction, modification or alteration of any building or structure on the Property. (g) Company shall, at its own expense, cause all utilities and roads used or to be used on the Property to be extended from adjacent streets, installed on the Property, and kept and maintained in good order and condition. (h) Company shall pay to City a combined service fee for services and facilities now furnished by City at the Pueblo Memorial Airport, namely: public street maintenance, fire protection, and street lighting based upon $295.00 per acre per annum payable monthly for each acre of land conveyed to Company hereunder. City may, from time to time, reduce or eliminate any or all of the services or facilities presently being furnished and may modify, increase, or decrease the annual combined service fee provided (i) such services and fee shall be non - discriminatory among other tenants and owners of land at Pueblo Memorial Airport receiving such services and facilities, and (ii) such fee shall be reasonable in relation to City's actual cost and expense of furnishing the services and facilities then being furnished. City's cost may include the cost of capital improvements amortized over the useful life of the improvements. If waste water is discharged from the Property and transported to and treated at City's waste water treatment facilities, Company and the waste water so transported and treated shall be subject to the same restrictions, limitations, conditions, fees, and charges as other users of City's sanitary sewer system and facilities. Company shall only discharge domestic waste water into the City's sanitary sewer system. (i) Company shall provide for storm water drainage which shall include the construction and installation of storm water detention facilities on the Property. The detention facility shall be capable of storing the developed on -site runoff from a 100 -year frequency storm. The maximum release rate from the detention facility at the ponding depth corresponding to the 10 -year volume shall be .30 cfs /acre and 1.00 cfs /acre for the 100 -year ponding depth. All calculations and details shall conform with the City of Pueblo Storm Drainage Criteria Manual. The point of discharge from the detention facility shall be at a location approved by the Director of Public Works. 0) Before commencing the construction, installation or alteration of any building, structure, parking facility, outdoor sign, or other permanent improvement, or landscaping on the Property, the Company shall submit to and have approved by the City in writing the site plans and plans and specifications therefor. City's approval will not be unreasonably withheld. In the event the City or its designated representatives shall fail to approve or disapprove such plans and specifications within twenty -five (25) working days after they have been submitted to the City, such approval will not be required and this covenant will be deemed to have been complied with. Company shall use its best efforts to assure that all buildings constructed on the Property will be architecturally and aesthetically compatible with buildings constructed at the Pueblo Memorial Airport industrial park -3- Res #9119 1111111111111111111111111111111111111111111111111111111 IN 1335779 10/23/2000 09:21A WD Chris C. Munoz 4 of 5 R 25.00 D 0.00 Pueblo Cty Clerk & Ree since 1985. All buildings, improvements and activities on the Property shall be constructed and conducted in compliance with all applicable federal, state and local law, regulations, and codes. (k) City reserves the right to waive all or any part of these Restrictive Covenants. 5. At the request of City, Company shall meet and in good faith confer with City concerning the annexation of the Property to the City when the Pueblo Memorial Airport, or any part thereof, including without limitation, the Property becomes eligible for annexation. 6. Invalidation of any one of the foregoing covenants, conditions, restrictions or reservations by judgment or court order or otherwise shall not affect any of the other of said covenants, reservations, restrictions or conditions which shall remain in full force and effect. 7. City shall have the right to enforce the restrictions, covenants and conditions hereof by injunction or other lawful procedure and to recover damages, costs, expenses, including reasonable attorney fees, resulting from any violation thereof or arising out of their enforcement. [SEAL] AttestNd1 . �. Name: Job e. � �? I LOS S Title: v , t� z t_ COUNTY OF ) ss. STATE OF COLORADO ) MCCALLIN REAL ESTATE, LLC Name: 0 i, d f ` (,i.i,� Title: /P 1 w " — PUE L�, A MUNICI AL CORPORATION By �� "� �` �/ �• �-- resident of the City Council 10 Reso. #9119 I IIIIII I'I'I VIII IIIIII IIII "III IIIIIII III (IIII IIII IIII 1353779 10/25/2000 09:21A WD Chris C. Munoz 5 of 5 R 25.00 D 0.00 Pueblo Cty Clerk & Rec The foregoing instrument owle ed before me this 1 day of ;Z 2000 by as and as of McCallin Real Estate, LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: n 2 /, [SEAL] COUNTY OF PUEBLO ) ) ss. STATE OF COLORADO ) &&4A'0 /,` Notary Public �t C The fo`egoing instrument was acknowledged before me this 1 &j day of CoAk 2000 by ,r:1n r) pc KCC i lrr as President of the City Council and L �)I Acj as City Clerk of Pueblo, Colorado, a Municipal Corporation. Witness my hand and official seal. - -- My-, �Rmmission expires: 9 -Z I - Z 1( %3 otary Public .i y^ i! F:\CITY\AIRPORT\MCCALLIN\WDEED2.WPD - MUST BE TYPED FILING FEE: $10.00 MUST SUBMIT TWO COPIES Please include a typed self- addressed envelope Mail to: Secretary of State Corporations Section 1560 Broadway, Suite 200 Denver, CO 80202 (303) 894 -2251 Fax (303) 894 -2242 CERTIFICATE OF ASSUMED OR TRADE NAME McCallin Diver sified Industries., Inc. Pp t� CusToMER c:OP'! WE'ri A DAB OF STATE , "' i4i�` '9se only 00111496 ' I; i1■ go � n r • �r �r rtiTi S L RE T�iR A V S s ,ATE .,.. ., -Ubs .' U ■aea.e•e.. 2000107r400 M � .00 SEC R ETARY (� OF STATE — U5 4 1 1 02 a 4 i 045 , a corporation , limited partnership or limited liability company under the laws of Colorado being desirous of transacting a portion of its business under an assumed or trade name as permitted by 7 -71 -101, Colorado Revised Statutes, hereby certifies: 1. The location of its principal office is: 6245 Clermo St. , Commerce City, CO .80022 (Include city, state, zip) 2. The name, other than its own, under which the business is carried on is: Timberline Industries, Inc. 3. A brief description of the kind of business transacted under such assumed or trade name is: Holding company for wholesale industrial distributors. Limited Partnership or Limited Liability Corporations complete this section Companies complete this sec tion. Name of Entity by Signature Title, General Partner, or Manager McCallin Diversified Industries, Inc. Name of Coraoration by Signature Its Title Revised 7/95 ■ STATE F ron 10 � (7'�� ! ly 1 DEPARTMENT OF STATE I' C CERTIFICATE I, DONETTA DAVIDSON, SECRETARY OF STATE OF THE STATE OF COLORADO HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF THIS OFFICE MCCALLIN DIVERSIFIED INDUSTRIES, INC. (COLORADO CORPORATION) FILE # 19941029941 WAS FILED IN THIS OFFICE ON March 14, 1994 AND HAS COMPLIED WITH THE APPLICABLE PROVISIONS OF THE LAWS OF THE STATE OF COLORADO AND ON THIS DATE IS IN GOOD STANDING AND AUTHORIZED AND COMPETENT TO TRANSACT BUSINESS OR TO CONDUCT ITS AFFAIRS WITHIN THIS STATE. Dated: April 11, 2000 SECRETARY OF STATE ■ ■ ■ CONSENT TO CORPORATE ACTION BY THE BOARD OF DIRECTORS OF MCCALLIN DIVERSIFIED INDUSTRIES, INC. The undersigned, constituting all of the directors of McCallin Diversified Industries, Inc. ( "Company "), do hereby consent to the following corporate action effective April 3 , 2000. RESOLVED, that the directors of the Company hereby approve the Agreement and Warranty Deed, attached hereto as Exhibits A and B respectively; and RESOLVED, that the officers of the Company are hereby authorized to execute and deliver the Agreement and Warranty Deed in the name of the Company to Pueblo, and to take such other and further actions as may be necessary to satisfy conditions and perform obligations under the Agreement and Warranty Deed. John L. McCallin Brian E. McCallin BEING ALL OF THE DIRECTORS OF MCCALLIN DIVERSIFIED INDUSTRIES, INC. The undersigned hereby certifies this to be a true and correct copy of minutes of the Board of Directors from the books and records of McCallin Diversified Industries, Inc. Secretary, Brian E. McCallin C:\McCa11in\C0NSENT.wpd ARTICLES OF ORGANIZATION OF MCCALLIN REAL ESTATE LLC pum . CIIbTOmn COPY DONETTA DAVIDSON C01ARADO SECRETARY OF STA1$ 2tJ001 1 505135 1 C 0 $ 1 50, 00 SECRETARY OF STATE 08-02 -2000 13: 43: 00 The undersigned, a natural person of the age of more than eighteen years and acting as organizer of a limited liability company under the Colorado Limited Liability Company Act, hereby adopts the following Articles of Organization for such limited liability company: ARTICLE I NAME The name of the limited liability company is MCCALLIN REAL ESTATE LLC. ARTICLE II PLACE OF BUSINESS The principal place of business is 6245 Clermont Street, Commerce City, CO 80022. ARTICLE III REGISTERED AGENT The street address of the initial : and mailing address of the limited liability company is 6245 Clermont Street, Commerce City, CO 80022. The name of the limited liability company's registered agent in Colorado is Edward Imatani, Esq., whose address is 225 Union Boulevard, Suite 310, Lakewood, CO 80228 ARTICLE IV MANAGEMENT The management of the limited liability company is vested in the members. The name and address of the initial Members are: NAME ADDRESS McCallin Diversified Industries, Inc. 6245 Clermont St., Commerce City, d/b /a Timberline Industries, Inc. Colorado 80022 6121 Clermont LLC 6245 Clermont St., Commerce City, Colorado 80022 515 Animas, Inc. 6245 Clermont St., Commerce City, Colorado 80022 McCarr Company 6245 Clermont St., Commerce City, Colorado 80022 ARTICLE V ORGANIZER The name and address of the organizer is: Edward Imatani c/o Banks & Imatani, P.C. 225 Union Blvd., Suite 310 Lakewood, Colorado 80228 EXECUTED this o 11A, 2000. Edward Imatani 2 ■ 4", 1 e STATE RADO DEPARTMENT OF STATE CERTIFICATE I, DONETTA DAVIDSON, SECRETARY OF STATE OF THE STATE OF COLORADO HEREBY CERTIFY THAT ACCORDING TO THE RECORDS OF THIS OFFICE MCCALLIN REAL ESTATE LLC (COLORADO LIMITED LIABILITY COMPANY) FILE # 20001150513 WAS FILED IN THIS OFFICE ON August 02, 2000 AND HAS COMPLIED WITH THE APPLICABLE PROVISIONS OF THE LAWS OF THE STATE OF COLORADO AND ON THIS DATE IS IN GOOD STANDING AND AUTHORIZED AND COMPETENT TO TRANSACT BUSINESS OR TO CONDUCT ITS AFFAIRS WITHIN THIS STATE. ■ Dated: September 06, 2000 CERTIFICATION The undersigned, Daniel J. McCallin, hereby certifies that the attached copies of Operating Agreement and Organizational Meeting Minutes of McCallin Real Estate LLC are true and correct copies from the records of the Company. DATED this _ day of O L��- , 2000. STATE OF COLORADO SS. COUNTY OF ) On this day of , 2000, before the undersigned, personally appeared Daniel J. McCallin and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My commission expires: �2/ J� f 0 3 NOTARY PUBLIC [SEAL] C:\McCa11in\certification.wpd ORGANIZATIONAL MEETING OF MCCALLIN REAL ESTATE LLC The organizational meeting of the Members and Manager of McCallin Real Estate LLC, a Colorado limited liability company (the "Company "), was held at C Colorado on the /1' day of &Sv> }- , 2000, at 11: - in., pursuant to written waiver of notice of the meeting signed by all of the Members and Manager of the Company, a copy of which is attached hereto as Exhibit A . Present were David F. Carr, and 0A,- -L S M `cail,J , representing all of the Members and Manager of the Company. David F. Carr was chosen chairperson of the meeting, and A%'Go/ /. ,,was appointed secretary of the meeting to keep the minutes. The Articles of Organization of the Company as filed in the office of the Secretary of State of Colorado were reviewed. Upon motion duly made and seconded, it was unanimously: RESOLVED, that the Articles of Organization of this Company as filed in the office of the Secretary of State of Colorado are hereby approved and adopted, and the secretary of the meeting is hereby directed to place the Articles of Organization in the Company's minute book. The chairperson presented an Operating Agreement which had previously been received by the Members and Manager for review, and he proposed that it be entered into by the Company. The Operating Agreement was reviewed, and following a discussion, upon motion duly made and seconded, it was unanimously: RESOLVED, that the Operating Agreement presented at this meeting is hereby approved, and the Manager is authorized and directed to execute the Operating Agreement on behalf of the Company. Upon execution by the Manager on behalf of the Company and all Members of the Company, the secretary of the meeting is hereby directed to place a copy of the Operating Agreement in the Company's minute book. The next order of business was the election of Managers. The following person was nominated to serve hereafter as Manager of the Company during the first fiscal year of the Company and until his successor is duly elected and qualified: David F. Carr Upon motion duly made and seconded, the nominee was unanimously elected as Manager of the Company. The chairperson asked that the Members consider a general resolution authorizing the Manager of the Company to conduct the business and affairs of the Company. Thereafter, upon motion duly made and seconded, it was unanimously: RESOLVED, that the Manager of the Company is authorized, subject to the further order of the Members to conduct and manage the business and affairs of the Company in accordance with the Operating Agreement, with specific power to engage, compensate, retain and discharge employees of the Company. The chairperson presented the proposed form of certificate for units of interest of the Company. On motion duly made and seconded, it was unanimously: RESOLVED, that the form of certificate which has been submitted to this meeting be, and it hereby is, in all respects approved and adopted as the form of certificate to represent the units of interest of the Company, and the Secretary of the meeting is hereby directed to attach a copy of the same to these minutes as Exhibit B . The chairperson discussed opening an account at U • S iA — IL , Colorado and adoption of the standard form of resolution used by the Bank. On motion duly made and seconded, the following resolutions were unanimously adopted: RESOLVED, that the U- 5 6' �i<- form of resolution authorizing David F' Carr or D:g6.4et- S. nti'c* /ia to sign checks and do other things on behalf of the Company, as more particularly therein set forth, shall be, and hereby is, adopted in toto as a resolution of the Company, and a copy of the same shall be attached to the minutes of this meeting as Exhibit C , and FURTHER RESOLVED, that David F. Carr is hereby authorized to borrow funds for this Company for such periods of time and upon such terms as he may determine. 2 The chairperson suggested that a formal resolution be adopted ratifying the action of the organizer of the Company and assuming the expenses of formation of the Company. Thereafter, upon motion duly made, seconded and carried, it was unanimously: RESOLVED, that all of the actions of the organizer in connection with the formation of the Company, and in anticipation thereof, and all obligations incurred by him in connection therewith are hereby ratified, adopted, approved, confirmed, and assumed by the Company; and FURTHER RESOLVED, that the Company assumes, agrees and obligates itself to pay and discharge all costs and expenses incurred by the incorporator in connection with the formation and organization of the Company, including, by way of amplification only, filing fees, attorney fees, minute book, reproduction, and miscellaneous expenses. There being no further business, upon motion duly made and seconded, it was unanimously resolved that the meeting be adjourned. Date: i/ Date: � /°" MCCALLIN REAL ESTATE LLC By: David F. Carr, Manager MCCALLIN DIVERSIFIED INDUSTRIES, INC., d/b /a TIMBERLINE INDUSTRIES, INC., Member By: �� , v F C,16-.A%- V, rP 6121 CLERMONT LLC, Member B 3 515 ANIMAS, INC., Member By. MCCARR COMPANY, Member EXHIBIT A WAIVER OF NOTICE OF THE ORGANIZATIONAL MEETING OF MCCALLIN REAL ESTATE LLC We, the undersigned, being all of the Members and Manager of McCallin Real Estate, LLC, a limited liability company organized and existing under the laws of the State of Colorado, do hereby waive any and all notice and consent to the holding of the organizational meetin of the Company to be held at C. , on the 1l t ` day of w fi' , 2000, at li w. ., for the purpose of transacting any and all business that may come before said meeting including adoption of the Articles of Organization and Operating Agreement, and the election of Managers. MCCALLIN REAL ESTATE LLC +/—� By': David F. Carr, Manager MCCALLIN DIVERSIFIED INDUSTRIES, INC., d/b /a TIMBERLINE INDUSTRIES, INC., Member 7 4 — e 0 By: 6121 CLERMONT LLC, Member J By: 5 515 ANIMAS, INC., Member By: MCCARR COMPANY, Member By: C: \McCallin \McCallin LLC Min.,apd OPERATING AGREEMENT OF MCCALLIN REAL ESTATE LLC THIS OPERATING AGREEMENT is entered into effective ki Us - f it , 2000, by and between McCallin Real Estate LLC, a Colorado limited liability company, McCallin Diversified Industries, Inc., d/b /a Timberline Industries, Inc., 6121 Clermont LLC, 515 Animas, Inc. and McCarr Company (hereinafter collectively referred to as "Members" or individually as "Member ") and McCallin Real Estate LLC (hereinafter the "Company "). ARTICLE I ORGANIZATION 1.1 Formation The Company has been formed in compliance with the Colorado Limited Liability Company Act ( "Act "). 1.2 Name The name under which the Company shall conduct its business shall be McCallin Real Estate LLC. The Company shall file the required trade name documents, if any. 1.3 Principal Office The principal place of business of the Company shall be at 6245 Clermont Street, Commerce City, Colorado, or at such other or additional locations as the Company may hereafter determine. 1.4 Term The Company shall commence business as of the above effective date, and it shall continue for a term of thirty (30) years unless earlier terminated pursuant to this Agreement, the articles of organization of the Company ( "Articles of Organization ") or applicable Colorado law. 1.5 Objects and Purposes The Company has been formed for and has the power to accomplish legal and lawful purposes under the Act, including but not limited to the following objects and purposes: a. To acquire, develop, lease, hold, use, sell and otherwise deal with real property and all matters incidental thereto; b. To assume obligations and to borrow or raise money from time to time in accordance with the negotiated provisions therefor, and secure the payment of any such obligations of the Company by mortgage, hypothecation or pledge of all or any part of the assets or properties now owned or hereafter acquired by the Company. C. To do and perform everything or take any action which may be necessary, advisable, suitable or proper for the conduct of the business of the Company in carrying out the purl )ses, objects and powers set forth in this Agreement, including, but not limited to, association `frith others by way of joint venture, co- tenancy, partnership or corporate form. ARTICLE II CAPITAL CONTRIBUTIONS 2.1 Initial Capital Contributions The initial capital of the Company has been contributed by the Members as set forth in Exhibit A attached hereto. 2.2 Additional Capital Contributions Each Member shall contribute additional capital to the Company sufficient to cover the Member's pro rata share of such other amounts as may be unanimously agreed upon by the Members. Any required contribution shall be made within thirty (30) days after delivery by managers of notification that such additional contribution is required to be made. 2.3 Failure to Make Contribution In the event a Member shall fail to make any capital contribution as required by this Agreement, the Company or managers may take all actions necessary to collect the contribution required of such Member, including litigation. Alternatively, at any time after the failure of a Member to make any contribution as required by this Agreement but before the contribution is made, voluntarily or involuntarily, the contributing Members may then elect to (a) waive contribution by such Member and adjust the share of the profits, losses and distributions of the non - contributing Member to compensate therefor, or (b) treat the contributions of the contributing Members as loans to the Company, which loans shall bear interest at an annual rate of two (2) points above the then prime rate of the Company's regular bank, which principal and interest shall have priority over any and all other sums owed to or payable to the Members. In addition, the rights of the non - contributing Member as a Member and manager, including but not limited to voting rights, shall be suspended until such time as the required contribution is made or the contributing Members make the foregoing election. 2.4 Return of Capital Contributions No Member shall have a right to demand the return of the Member's capital contributions except as herein provided. ARTICLE III PROFITS, SURPLUS, AND LOSSES 3.1 Determination of Profits. Gains. or Losses The profits or losses of the Company shall be determined in accordance with the method of accounting selected by the managers. Gains or losses from the sale of Company assets or property shall be included in such determination. 3.2 Participation in Profits. Surplus. or Losses The Members shall initially participate in the profits, surplus, and losses of the Company proportionately based upon capital account balances. Where property is contributed to the Company by a Member such items shall be 2 allocated, pursuant to the Internal Revenue Code so as to take account of any variation between the Company's adjusted tax basis of the property and the fair market value of the property at the time of contribution. ARTICLE IV CAPITAL AND DRAW ACCOUNTS AND DISTRIBUTIONS 4.1 Capital Accounts An individual capital account shall be maintained for each Member. The capital of each Member shall consist of the Member's initial capital contribution, increased by (a) additional capital contributions and (b) any credit balances transferred from the Member's draw account to the Member's capital account and decreased by (a) distributions of Company capital to the Member and (b) the Member's share of Company losses charged to the capital accounts of the Members. 4.2 Draw Accounts An individual draw account shall be maintained for each Member consisting of each Member's proportionate share of Company profits, gains, losses, deductions, and credits, each such share to be allocated on the basis of the proportion of the Member's capital account. Distributions, other than those which the Members unanimously agree shall be in reduction of their capital accounts, shall be charged to the individual draw accounts of the Members. The Members may determine by majority vote to distribute to Members or transfer to Company capital all or any portion of the credit balances in the respective draw accounts of the Members. If a Member has no credit balance in such Member's draw account, losses shall be charged to such Member's capital account. 4.3 Distributions At such times as agreed by majority vote among the Members, a Member may withdraw any credit balance in such Member's draw account; provided that a Member may not receive a distribution to the extent that, after giving effect to the distribution, all liabilities of the Company, other than liabilities to Members on account of their membership interests, would exceed the fair value of the Company assets. No distributions of capital may be made without the unanimous consent of all Members. 4.4 No Interest on Capital or Draw Accounts No interest shall accrue or be paid on a Member's capital or, draw accounts unless otherwise determined by the unanimous written consent of the Members. ARTICLE V MEMBERS 5.1 Additional Members New members shall be admitted to the Company only upon unanimous consent of the existing Members. All new members must acknowledge in writing their agreement to be bound by this Agreement, as then amended. 5.2 Meetings and Notice An annual meeting of the Members shall be held in the month of m ordered by the managers, at which time annual reports of the existing 3 managers shall be presented and managers for the following year shall be elected. Special meetings may be called by a manager or Member(s) owning not less than twenty (20 %) of the total capital interests in the Company. Written notice of a meeting stating the date, time and place and, in the case of a special meeting, the purpose for which it is called, shall be delivered not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by mail, at the direction of the managers to each of the Members. When any notice is required to be given to any Member, a waiver thereof in writing signed by the person entitled to such notice shall be equivalent to the giving of such notice. By attending a meeting, the Member waives objection to the notice of the meeting unless the Member, at the beginning of the meeting, objects to the holding of the meeting or the transacting of business at the meeting. As to any Member who shall sign the minutes of any meeting of Members, such meeting shall be deemed to have been legally and duly called, noticed, held and conducted, and the signature of any Member to the minutes shall for all purposes and as to all persons be held to be an approval of the action thereto. The chairman elected from among the managers shall call the meetings of Members to order and act as chairman of such meetings. In the absence of said chairman, any Member entitled to vote at that meeting, or any proxy of any such Member, may call the meeting to order and a chairman shall be elected by a majority of the Members entitled to vote at that meeting. Any person appointed by the chairman may act as secretary of such meeting. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the Company may transact any business which might have been transacted at the original meeting. If the adjournment is for more than thirty days, a notice of the adjourned meeting shall be given to each Member entitled to vote at the meeting. 5.3 Quorum and Manner of Acting Each Member shall have a vote, in person or by proxy, equal to its ownership percentage interest in the Company at the time of the vote. Unless otherwise provided by law, the Articles of Organization or this Agreement, a majority of the interests in the Company entitled to vote shall constitute a quorum. If a quorum is present, the vote of a majority of the Membership interests present shall be the act of the Members, unless otherwise provided by law, the Articles of Organization or this Agreement. 5.4 Action by Members without Meeting Any action of the Members may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each Member entitled to vote and delivered to the managers for inclusion in the minutes. Action taken as provided herein is effective when all Members entitled to vote have signed the consent, unless the consent specifies a different effective date. Written consent of the Members entitled to vote has the same force and effect as a unanimous vote of such Members and may be stated as such in any document. 5.5 Resi nation A Member may resign from the Company at any time by delivery of thirty (30) days' prior written notice thereof to the other Members and written consent of all other Members. Resignation without prior notice and consent shall be a violation of this al Agreement. After compliance with the preceding notice and consent requirements, the resigning Member's interest in the Company may then be transferred or assigned by the resigning Member pursuant to the provisions of Article IX. The resigning Member shall not otherwise be entitled to receive a distribution of the value of his interest in the Company. 5.6 Business Between Members and Compm3L Nothing contained herein shall prevent a Member, or an affiliate of the Member, from loaning money to or transacting business with the Company, and none of the other Members shall have any rights or claims as to any profit, income, proceeds or distributions derived therefrom. 5.7 Other Ventures This Agreement shall not preclude the right of any Member to engage or invest in any business activity of any nature or description, including those which may be the same as or similar to the Company's business and in direct competition therewith. Any such activity may be engaged in independently or with others. Neither the Company nor any Member shall have any right, by virtue of this Agreement or the Company relationship created hereby, in or to such other ventures or activities, or to the income or proceeds derived therefrom, and the pursuit of such ventures, even if competitive with the business of the Company, shall not be deemed wrongful or improper, subject to the limitations set forth herein. ARTICLE VI MANAGEMENT 6.1 Managers The management and control of the Company's business and affairs shall be vested in a manager or managers, who shall be natural persons over the age of eighteen years. 6.2 Number. Election and Term The number of managers shall be not less than one (1) but no more than four (4). The managers shall be elected annually by a majority of the Members at the annual meeting of the Members for a term of one year. 6.3 Removal A manager may be removed at any time with or without cause by a vote of a majority of the Members then entitled to vote at a meeting called expressly for that purpose. 6.4 Resignation A manager may resign at any time by delivery of written notice to the other managers, if any, and to the Members. The resignation shall be effective without formal acceptance but shall not be effective until the resigning manager shall deliver all Company books, records, assets and other property in his possession or control to the other managers or Members. 6.5 Vacancies A vacancy may be filled by written agreement of a majority of the remaining managers; provided that a manager's position to be filled by reason of an increase in the number of managers may be filled by written agreement of the existing managers or by election at an annual meeting or special meeting of the Members for that purpose. A manager selected to fill 5 a vacancy shall hold office until the expiration of the term of his predecessor in office and the election and qualification of a successor. 6.6 Committees The managers, by resolution adopted by a majority of the entire group of managers, may, from time to time, designate two or more managers from among its members to constitute an Executive Committee and such other committees, and alternate members thereof, as they deem desirable, each consisting of three or more members, with such powers and authority (to the extent permitted by law) as may be provided in such resolution. Each such committee shall serve at the pleasure of the group of managers. 6.7 Meetings The annual meeting of the managers shall be held immediately after the annual meeting of the Members. The managers shall hold regular meetings without notice at such times and places as they may determine. Special meetings shall be held whenever called by a manager; provided that notice of special meetings shall be mailed by regular mail to each manager at least three days before the date of the meeting or personally delivered at least one day before the meeting, specifying the purpose of the meeting. At all meetings of the managers, a chairman chosen by majority vote of managers present shall preside. 6.8 Waiver of Notice and Approval of Action When notice is required to be given to any manager, a waiver thereof in writing signed by the person entitled to such notice shall be the equivalent to the giving of such notice. By attending a meeting, a manager waives any required notice of such meeting unless the manager, at the beginning of the meeting, objects to the holding of the meeting or the transaction of business at the meeting. As to any manager who shall sign the minutes of any meeting, such meeting shall be deemed to have been legally and duly called, noticed, held and conducted, and the signature of any manager to the minutes of a meeting shall for all purposes and as to all persons be held to be an approval of the actions taken therein. 6.9 Quorum and Manner of Acting On matters submitted to the managers for a vote, each manager shall have one vote. A majority of the number of managers shall constitute a quorum at any meeting. Except as provided by law, the Articles of Organization or this Agreement, the act of a majority vote of the managers present at a meeting at which a quorum is present, shall be the act of the group of managers. A manager who is present at a meeting of the managers is deemed to have assented to the actions taken at the meeting unless (i) the manager objects at the beginning of the meeting to the holding of the meeting or the transacting of business at the meeting; (ii) the manager contemporaneously requests that his dissent be entered in the minutes; or (iii) the manager gives written notice of dissent to the presiding officer of such meeting before adjournment of the meeting. The right to dissent shall not be available to a manager who votes in favor of the action to which the manager dissents. G Any manager or any committee member may participate at a meeting of the managers or committee by means of telephone conference or similar communications equipment by which all persons participating in the meeting can hear each other at the same time. Such participation shall constitute presence in person at the meeting. Any action of the managers or of a committee may be taken without a meeting if the action is evidenced by one or more written consents describing the action taken, signed by each manager entitled to vote and placed in the minutes. Action taken as provided herein is effective when all managers entitled to vote have signed the consent, unless the consent specifies a different effective date. Such consent shall have the same force and effect as a unanimous vote of the managers and may be stated as such in any document. 6.10 Duties Each manager shall perform the duties of a manager in good faith, in a manner reasonably believed to be in the best interests of the Company, and with such care as an ordinarily prudent person in a like position would use under similar circumstances. A person who so performs the duties of a manager shall not have any liability by reason of being or having been a manager of the Company. In performing duties for the Company, a manager shall be entitled to rely on information, opinions, reports or statements of the following persons or groups unless the manager has knowledge concerning the matter in question that would cause such reliance to be unwarranted: (a) One or more employees or other agents of the Company whom the manager reasonably believes to be reliable and competent in the matters presented; (b) Any attorney, public accountant or other person as to the matters which the manager reasonably believes to be within such person's professional or expert competence; or (c) A committee, upon which the manager does not serve and which committee has designated authority and the manager reasonably believes to merit confidence. 6.11 Powers The managers are hereby specifically authorized and directed on behalf of the Company to: a. Acquire, own, develop, manage, use, operate and dispose of franchise development rights and all matters connected therewith, including the acquisition, development, leasing, holding, use, selling and otherwise dealing with real property and personal property, upon such terms as shall be in the best interest of the Company. b. Enter into any and all contracts or agreements in connection with the business and properties of the Company deemed necessary and advisable by the managers, including but not limited to the following: investment of Company funds; employment, engagement, and discharge of any employee, agent, independent contractor, accountant, or attorney; and insurance for 7 the protection of the Company and the managers, for the conservation of the Company assets, or for any purpose reasonably necessary for the conduct of the Company and its business. C. Maintain proper books and records for the Company. d. Prepare or cause to be prepared all required tax returns and supporting schedules for the Company and furnish copies thereof to the Members. e. Cause the Company to make or revoke any available tax elections. f. Open accounts, deposit, disburse, and maintain funds in the name of the Company in banks or savings and loan institutions. g. Invest, use, and spend the capital and income of the Company in the exercise of any rights, powers, and obligations possessed by the managers hereunder. h. Borrow funds to conduct the business of the Company and secure payment thereof with the assets or income of the Company. i. Maintain adequate reserves from Company funds for the purpose of paying the various obligations of the Company as they come due. j. Execute and file for record the required trade name documents for the Company. k. Execute and file limited liability company reports and pay fees as required by law. 1. Do such other acts (though not expressly authorized but not expressly prohibited by this Agreement or law) and make, execute, and deliver such instruments and documents as may be reasonably necessary, advisable, or incidental to effectuate the foregoing. A manager may lend money to, act as surety for, and transact other business with the Company and, subject to other applicable law, has the same rights and obligations with respect thereto as a person who is not a manager; except that this provision shall not be construed to relieve a manager from any of his duties as specified hereinabove. 6.12 Limitations on Authority No manager shall have authority to do any act in contravention of the Articles of Organization or this Agreement. Notwithstanding the foregoing rights, powers, authority, and obligations of the managers, without the unanimous written consent of the Members, no manager shall on behalf of the Company: a. Assign the Company property in trust for creditors or on the assignee's promise to pay the debts of the Company; 0 b. Dispose of the goodwill of the business; C. Do any act which would make it impossible to carry on the ordinary business of the Company; or d. Sell, exchange or otherwise dispose of all or substantially all of the assets of the Company; 6.13 Salaries Unless otherwise unanimously agreed in writing by the Members, no manager shall receive any salary for services rendered to the Company. 6.14 Expenses All expenses of the Company or expenses incurred by any manager in connection with the conduct of Company business shall be paid or reimbursed from Company funds. A manager desiring reimbursement for expenses chargeable to the Company shall submit a reimbursement request along with a voucher, receipt or other appropriate supporting documentation for such expenses. ARTICLE VII INDEMNIFICATION It is the intent of the Company and Members that the management, conduct, and operation of the Company and its business shall be at the expense and risk of the Company and not at the expense and risk of any manager, employee or agent. Accordingly, the indemnification provisions of the Colorado Limited Liability Company Act, as amended from time to time, are incorporated herein by reference thereto and shall be construed to afford any manager, employee or agent of the Company maximum indemnification allowable thereunder. ARTICLE VIII FISCAL AFFAIRS 8.1 Bankin . The Company shall establish and maintain bank accounts separate and apart from any funds of the Members or managers. All Company receipts shall be deposited in and expenses of the Company paid from these accounts. Checks drawn on these accounts shall be signed in the manner designated from time to time by the managers. The Company may establish as many bank accounts as deemed convenient or desirable. 8.2 Books and Records The Company shall establish and maintain books of account and other records, which shall be retained and kept at the principal place of business of the Company. The books of account and records of the Company shall include but not be limited to the following: (a) A current list of the full name and last -known business, residence, or mailing address of each Member and manager, both past and present; 9 (b) A copy of the Articles of Organization and all amendments thereto, together with executed copies of any powers of attorney pursuant to which any amendment has been executed; (c) Copies of the Company's federal, state and local income tax returns and reports, if any, for the three most recent years; (d) Copies of any currently effective written operating agreements, copies of any written promise of a Member to contribute cash, property or services to the Company and copies of any financial statements of the Company for the three most recent years; (e) Minutes of every annual and special meeting and any meeting ordered by a court of competent jurisdiction; (f) A statement prepared and certified as accurate by a manager of the Company which describes: (1) The amount of cash and a description and statement of the agreed value of the other property or services contributed by each member and which each member has agreed to contribute in the future; (2) The times at which or events on the happening of which any additional contributions agreed to be made by each member are to be made; (3) If agreed upon, the time at which or the events on the happening of which a member may terminate his membership in the limited liability company and the amount of, or the method of determining, the distribution to which he may be entitled respecting his membership interest and the terms and conditions of the termination and distribution; (4) Any right of a member to receive distributions which include a return of all or any part of a member's contribution; (g) Any written consents obtained from members pursuant to provisions of the Limited Liability Company Act pertaining to action by Members without a meeting. 8.3 Right of Inspection The books of account and other records of the Company shall be subject to inspection and copying at the reasonable request and expense of a Member during ordinary business hours. 8.4 Fiscal Year The Company books of account shall be kept on a calendar year basis. 8.5 Accounting Method There shall be no requirement that the Company's books of account be audited by any accounting firm. The accounting method for the Company shall be 10 adopted by a majority of the Members by no later than the filing of the first federal income tax return filed by the Company. 8.6 Tax and Other Financial Information Financial statements of the Company shall be prepared not less often than annually. Copies of financial statements and income tax returns of the Company shall be furnished to all Members. The provisions of this Agreement are intended to comply with requirements under the Internal Revenue Code and the Treasury Regulations and shall be construed accordingly. 8.7 Title Real and personal property owned or acquired by the Company shall be held, owned and conveyed in the Company name. ARTICLE IX TRANSFER OR ASSIGNMENT OF COMPANY INTEREST A Member may voluntarily transfer or assign the Member's interest in the Company only pursuant to this Agreement. Any non - complying transfer or assignment shall be void and without any force or effect. For purposes of this Article, "transfer or assign" includes but is not limited to any sale, exchange, assignment (including an assignment for the benefit of creditors or a transfer to a trustee or receiver for the benefit of creditors), gift, pledge, hypothecation, or other encumbrance or disposition of any portion or all of a Company interest. 9.1 Right of First Refusal The Company and the other Members ( "Non- assigning Members ") shall have rights of first refusal to purchase the Company interest of a Member desiring to make a transfer or assignment ( "Assigning Member "). In the event such transfer or assignment is contemplated, the Assigning Member shall give at least sixty (60) days' prior written notice to the Company and the Non - assigning Members of the desire to transfer or assign, which notice shall include the type of transfer or assignment contemplated, the identity of the proposed transferee or assignee and the terms and conditions of the transfer or assignment. Upon receipt of the notice, the rights of the Company and the other Members shall be governed by the following provisions of this Article. 9.2 Exercise of Right of First Refusal The Company and the Non - assigning Members shall exercise their rights to purchase the Assigning Member's interest as follows: (a) If a majority of the Non - assigning Members elect, the Company shall exercise its right to purchase by giving notice of such election to the Assigning Member within thirty (30) days after delivery of the notice of intent to transfer or assign. (b) If the Company does not elect to purchase the Assigning Member's interest, the Non - assigning Members may exercise their rights to purchase the Assigning Member's interest on a pro rata basis determined by reference to their respective capital accounts by giving 11 notice of such election to the Assigning Member within fifteen (15) days after the lapse of the Company's option. (c) If any of the Non - assigning Members shall not elect to purchase their pro rata share within the required notice period, any one or more of the Non - assigning Members who have elected to purchase may elect to purchase the non - electing Member's pro rata share by giving notice of such election to the Assigning Member within fifteen (15) days after the lapse of the non - electing Member's option. If the entire interest specified in the Assigning Member's notice is not purchased on or before the Closing Date as defined below, the Assigning Member may proceed with the transfer or assignment as proposed in the Assigning Member's notice, subject to the Article hereof entitled "Members" and provided that any material change in the terms and conditions of the transfer or assignment shall obligate the Assigning Member to again give notice and follow the procedures set forth in this Article. 9.3 Terms and Conditions In the case of a transfer or assignment where there is a bona fide offer, the terms and conditions of such transfer or assignment shall be those of the bona fide offer. If there is no bona fide offer, the terms and conditions may be mutually agreed upon by the Company or the Members making the purchase (the Purchaser) and the Assigning Member. If the Purchaser and the Assigning Member cannot agree on the purchase price, the purchase price shall be based upon the Assigning Member's pro rata portion (determined by the Assigning Member's share of Company profits) of the fair market value of the Company's assets after deducting Company liabilities as of the date of notice of election to purchase. The fair market value of the Company's assets may be determined by an independent appraiser approved by the Purchaser and Assigning Member. If the parties cannot agree as to the specific appraiser, the Assigning Member shall select one appraiser and the Purchaser shall select one appraiser. The selected appraisers shall select a third appraiser, and these three appraisers shall determine the fair market value within seventy -five (75) days after delivery of the original notice to transfer or assign. If the appraisers cannot agree, the fair market value shall be the average of the values determined by the appraisers individually. Any cost of such appraisals shall be borne equally by the Purchaser and the Assigning Member. If the Purchaser and the Assigning Member cannot agree on the payment terms, the purchase price shall be paid on the Closing Date by the payment in cash or other good funds of 10% of the purchase price and the balance by a promissory note payable in ten (10) equal annual installments bearing a per annum annual interest rate equal to the then current prime rate of the Company's bank. The promissory note shall provide for prepayment in whole or in part without penalty. The Company interest being purchased shall serve as security for the unpaid balance. 9.4 Closing Date Except as otherwise provided in this Agreement, the Closing Date shall be determined by the mutual agreement of the Purchaser and Assigning Member, but in 12 no event shall the Closing Date be later than one hundred (100) days after delivery of the Assigning Member's original notice to transfer or assign. 9.5 Effect of Transfer or Assignment A transfer or assignment of a Company interest shall not dissolve the Company or entitle the assignee to become or exercise any rights of a Member. An assignment entitles the assignee to receive, to the extent assigned, only the distributions to which the assignor would be entitled. 9.6 Right of Assignee to Become Member An assignee of a Company interest may become a Member only pursuant to Article V hereof. ARTICLE X DISSOLUTION AND TERMINATION 10.1 Dissolution (a) The Company shall be dissolved upon expiration of the agreed term of the Company. (b) The Company may be dissolved and terminated at any time by unanimous written consent of the Members. (c) The death, retirement, resignation, expulsion, or bankruptcy or dissolution of any Member or the occurrence of any other event which terminates the continued membership of a Member in the Company shall cause the involuntary dissolution of the Company, unless there are at least two remaining Members and the business of the Company is continued by the consent of all remaining Members within ninety days after the termination. If the remaining Members elect to continue, the remaining Members shall be deemed to have elected to purchase the Company interest of the deceased, withdrawn, bankrupt or terminated Member, which purchase shall be governed by the Article of this Agreement entitled "Transfer or Assignment of Company Interest." If the remaining Members do not elect to continue, the Company shall be dissolved and terminated pursuant to this Article. 10.2 Liquidation In the event the Company shall be wound up and terminated, the Members shall proceed with reasonable promptness to liquidate the assets of the Company. Any one or all of the Members may act as liquidator(s). In the event none of the Members desire to act as liquidator, the Members may hire a third party to act as liquidator. No Member shall be entitled to any compensation for the Member's services in connection with the liquidation of the Company, unless the other Members unanimously agree otherwise. In the event that no Member or third parry is appointed to act as liquidator within sixty (60) days after the event requiring liquidation of the Company, any Member may apply to a court of competent jurisdiction for the appointment of a liquidator. Any liquidator, other than a court appointed liquidator, shall be 13 liable only for acts or omissions constituting gross negligence, willful misconduct, or fraud. A court appointed liquidator shall be liable for any negligent act or omission. 10.3 Distribution Upon Dissolution and Termination Upon dissolution and termination, the assets and properties of the Company shall be used and/or distributed in the following order: (a) To pay or provide for the payment of all Company liabilities to creditors including Members, except as to liabilities to Members for distributions of capital or profits; (b) To discharge the balance of the capital accounts of the Members and obligations to former Members for distribution of capital and profits; (c) To discharge the balance of the draw accounts of the Members; and (d) The balance, if any, to be divided among the Members in the same proportion as they share the profits of the Company. No Member shall be entitled to anything other than cash in liquidation of the Member's interest in the Company; provided that the Company may make such distributions in kind as may be considered necessary to accomplish the liquidation of the Company. 10.4 Statutor� Filing_s The managers shall file a statement of intent to dissolve, articles of dissolution and such other documents as may be required by law to dissolve the Company. ARTICLE XI MISCELLANEOUS PROVISIONS 11.1 Choice of Law This Agreement shall be governed by and interpreted in accordance with the laws of the State of Colorado. 11.2 Entire Agreement and Amendment This Agreement constitutes the entire understanding among the Members, and it supersedes any prior understanding or agreement in respect of the Company. This Agreement may not be amended without the unanimous written consent of all Members. 11.3 Headings Headings and subheadings contained in this Agreement shall not be considered part of this Agreement, and the text shall control. 11.4 Severability In the event any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions of the Agreement shall nevertheless be binding with the same effect as though the invalid and unenforceable provision was deleted. 14 11.5 Gender and Number All references to gender shall include the feminine, masculine and the neuter genders, and any reference in the singular or plural form shall include whichever form the circumstances may require. 11.6 Nonwaiver of Rights Failure or delay by a Member to exercise any right hereunder shall not operate as a waiver thereof or of any other right. 11.7 Waiver of Partition Rights Each of the Members hereby irrevocably waives any and all rights that the Member may have to maintain any action for partition with respect to the Member's Company interest or the Company's properties. 11.8 Inurement This Agreement shall be binding upon and inure to the benefit of the Members and their respective heirs, personal representatives, successors, and assigns. 11.9 Notice Any notice or other communication given or delivered pursuant to the terms of this Agreement shall be made in writing and shall be considered as properly given or delivered if hand delivered or mailed, postage prepaid, properly addressed to the last known address of the addressee. In the case of notification by mail, notice shall be deemed to have been received three days after the date of mailing when properly addressed to the last known address of the addressee, except for mailing of a notice of meeting, which shall be deemed delivered as to any Member when deposited in the United States mail. 11.10 Attorne s� Fees If any party hereto files an action against another Member, a former Member or the Company to enforce the terms hereof or declare rights hereunder, the prevailing party shall be entitled to reasonable attorneys' fees and costs of suit as well as such other relief that the court may award. 11.11 Counterparts This Agreement may be executed in counterparts, each of which when taken together shall constitute one and the same agreement binding upon all Members. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year indicated. COMPANY: MCCALLIN REAL ESTATE LLC _"a 4 Xf By: David F. Carr, Manager 15 MCCALLIN DIVERSIFIED INDUSTRIES, INC., d/b /a TIMBERLINE INDUSTRIES, INC., Member By: 6121 CLERMONT LLC, Member By: 515 ANIMAS, INC., Member I a4 C� By: MCCARR COMPANY, Member By: STATE OF COLORADO COUNTY OF Ad A-m- )ss. On this I l '�' day of uS� , 2000, before the undersigned, personally appeared David F. Carr as Manager of McCallin Real Estate LLC and acknowledged that he executed the same for the purposes therein contained. 16 IN WITNESS WHEREOF, I have hereunto set my hand and official seal My commission expires: 0 3 / O c 1 0 a- C. Not Public [SEAL] STATE OF COLORADO ) )ss. COUNTY OF " l9'V>'1 S ) On this / day of rC u ST 2000, before the undersigned, personally appeared �rq LLI A) as ry1ANA & of (01 oZ I CJW_M L- C, , and acknowledged that he or she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My commission expires: D 3 1 O 6 t b'D Not Public [SEAL] 17 STATE OF COLORADO ) COUNTY OF "A S )ss. ) On this / / day of & 2000, before the undersigned, personally appeared and acknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My commission expires: Notary Public [SEAL] STATE OF COLORADO ) COUNTY OF A J 10 ri1S )ss. ) On this ) t day of Cz u ST - 2000, before the undersigned, personally appeared mac.; P L-s de.�oT , , and of S i and acknowledged that they executed the same for the purposes therein contained. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. My commission expires: 05 / d ( � o a— Not ry Public SEAL] Eq:3