HomeMy WebLinkAbout1.5 MVMD Cerise Pre-Inclusion Agreement.. -1-,~;.,.,:· •
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MID VALLEY METROPOLITAN DISTRICT
MUMBERT CERISE FA1\IlLY COMPANY, LP
PRE-INCLUSION AGREEMENT
EXHIBIT D
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THIS PRE-INCLUSION AGREEMENT is made and entered into this 21 -day of
~m , 1998, by and between the MID VALLEY METROPOLITAN DISTRI~ Colorado special district, whose address is 0031 Duroux Lane, Suite A, Basalt,
CO 81621 (hereinafter "District"); and MUMBERT CERISE FAMILY COMPANY, LP, a
Colorado Limited Partnership, whose address is 17072 Highway 82, Carbondale, Colorado
81623 (hereinafter the "Cerise Family" or "Petitioner"), and WINTERGREEN HOMES
LIMITED LIABILITY COMPANY, whose address is 305 Madison, Denver, Colorado 80206
(hereinafter the "Developer"). The Petitioner and the Developer are hereinafter sometimes
referred to as the "Landowners."
W l T N E S S E T H:
WHEREAS, the District is a Colorado special district formed and functioning by the
authority of C.R.S. §32-1-101, et seq., providing potable water and sanitary sewer service to
the area around El Jebel, Colorado; and
WHEREAS, C.R.S. §32-1-401, et seq. and Section 6.01 of the Rules and Regulations
of the District (hereinafter "Rules and Regulations") provide requirements and procedures for
inclusions of property into the District, and specifically C.R.S. §32-l-402(l)(c) provides that
agreements may be entered into "between a board and the owners of property sought to be
included in a special district with respect to fees, charges, terms and conditions on which such
property may be included"; and
WHEREAS, the Petitioner owns certain real property located in Garfield County,
Colorado, as more particularly described in Exhibit A, attached hereto and incorporated herein
by this reference (the "Petition Property"), which Petitioner desires to have included in the Mid
Valley District in order to receive water and sewer services from the District; and
WHEREAS, the Developer has entered a Purchase and Sale Contract with the Petitioner
to purchase the Petition Property, dated January 23, 1997, amended April 15, 1997, September
10, 1997 and Dec~ber 16, 1997, a copy of which Purchase and Sale Agreement is available
for inspection at the District offices; and
WHEREAS, the Developer has identified property in Garfield County, Colorado, which
it proposes for the purpose of constructing a regional wastewater treatment facility for the
benefit of the District (hereinafter the "Plant Property"), which Plant Property is identified on
tho '""""'~•~log idattifioi " Emib• B '"" ioco'J'O'""' horeb;. ~
AUG 2 11998
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WHEREAS, the Developer has also entered into a contract, a copy of which is attached
hereto and incorporated herein by this reference as Exhibit C, to buy and sell vacant land with
Clifford Cerise, General Partner, providing for the purchase of the Plant Property and for the
acquisition of additional property in Garfield County, Colorado; and
WHEREAS, pursuant to C.R.S. §32-1-40l(a), the Petitioners submitted a Petition for
Inclusion of the Petition Property into the District on March 25, 1997; and
WHEREAS, pursuant to C.R.S. §32-1-401(b), the District held public hearings on
various dates throughout 1997 and 1998, at which times the inclusion of the Property was
discussed, and at the public hearing on March 17, 1998, the inclusion of the Petition Property
was conceptually approved by the Board of Directors for the District pursuant to C.R.S. §32-1-
401(c)(I), subject to the terms and conditions of a Pre-Inclusion Agreement to be entered into
between the parties; and
WHEREAS, the Developer has proposed phased single and multi-family residential
development on the Petition Property, which at the time of execution of this agreement is
estimated to eventually require approximately 300 EQR; and
_WHEREAS, pursuant to C.R.S. §§31-1-IOOl(l)(d), O-m), and 31-35-402(1)(f), the
District has the authority to require reimbursement of its out-of-pocket costs in providing
services to District customers, including but not limited to water and sewer connections,
inclusions and exclusions from the District, and planning and review of line extensions; and
WHEREAS, Sections 6.01, 8.04, and 9.01 of the Rules and Regulations of the District
provide that the District may charge legal, engineering, publication, recording, inspection,
observation, extension, and other fees of customers desiring services from the District; and
WHEREAS, the District and the Developers desire to set forth their understandings and
agreements concerning the inclusion process and the future relationship between them.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises of
the parties, and other good and valuable consideration, the adequacy and sufficiency of which
are hereby acknowledged, the parties, on behalf of themselves and their s_uccessors, assigns,
heirs, devisees, or transferees, agree as follows: ...
I. Procedures for Inclusion. Provided all of the conditions precedent to inclusion
described herein have bee!\ satisfied or performed; the District shall take all steps necessary to
finalize the inclusion of the Petition Property into the District pursuant to C.R.S. §32-1-401 et
~. including but not limited to obtaining an Order or Orders of Inclusion of the Garfield
County District Court and filing and recording said Order or Orders with the Garfield County
Clerk and Recorder, the Garfield County Assessor, and the Division of Local Government.
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· iision into the District of the Plant Property shall be entirely at the District's option .
. ::that the District has taken the steps necessary to finalize inclusion of the Petition
Ind provided the Developer holds fee title to the Plant Property, the Developer shall
,'.·the District to include the Plant Property within ten (10) days of a written request from
iStrict to do SQ.
Reimbursement to District. As provided herein and as otherwise allowable under
bble local regulations, state law, and federal law, including but not limited to Section 7.18
:~e Rules and Regulations of the District, the Petitioner agrees to pay the District a reasonable
·.i ....
· unt for all services provided or actual costs incurred by the District in relation to the
:·":lusion requested by them, including engineering, legal, inspection, filing, or recording fees
" related expenses, on receipt of itemized billings for those services from the District. All
.. :SUcli amounts are due within thirty (30) days of the date of the bill, with interest on any overdue
'.";lll!lounts to be assessed at one percent (I % ) per month. In the event that such amounts remain
.. unpaid thirty (30) days after the date they are billed, the District reserves the right, in addition
"i to any and all other remedies, to cease supplying any and all services being provided, including
' but not limited to water and sewer service, review, and processing of applications for service
or inclusion. In the event the District is forced to pursue collection of any amounts due and
unpaid under this provision, it shall be entitled to collect attorneys' fees, filing and lien
recoroing fees incurred in such collection efforts in addition to the unpaid amounts due, plus
interest. Further, the Developer expressly agrees to guarantee payment of all amounts due to
the District owed by the Petitioner and to assume liability to the District for all such costs and
fees owed by Petitioner from Petitioner at the time of closing of the sale of the Petition Property,
or which may be thereafter owed or incurred by Developer.
3. Rules and Re&Ulations. The inclusion process, and the Petition Property itself,
shall be subject to the Rules and Regulations adopted September 19,1991, as they may hereafter
be amended; provided, however, that no future rules or regulations shall be applicable which
defeat the intent of this Agreement, or modify any express or substantive terms of this
Agreement without the consent of the parties. From the effective date of inclusion as established
by the Order of the Court, the Petition Property shall be subject to all taxes, fees, rates, tolls,
and charges now in effect or which may later be levied or collected by the District, except as
otherwise hereafter described in this Agreement. Further, all connections to the District water
or sewer systems and all ·lines for water or sewer service on the Petition Property shall be made
in accordance with the Rules and Regulations and technical specifications.
4. Connection to District System. The Petitioner and the Developer agree that at the
time the District's services are first ·extended ·to the Petition Property, the Developer or the
Petitioner shall connect all improvements, including any that may have been served by pre-
existing water wells and septic systems or otherwise pre-existing on the date of this Agreement,
to the District's water and sewer system and pay all fees due for such connections, except as
otherwise provided herein to the contrary.
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The parties' mutual obligations and the payment of fees related to expansion of and
. connection to the District's sewer system are more fully set forth in the Wastewater Treatment
Plant Development Agreement and Sewer Interceptor Line Extension Agreement to be executed
with this Agreement. Pursuant to the Rules and Regulations, no District service shall be
provided, and no connection shall be made to the District water or sewer systems until the
Petition Property is included in the District, an application for service has been made, any
applicable tap fees have been paid, and a tap permit has been issued.
5. Raw Water Irrigation. The parties hereto agree that all outside lawn and garden
irrigation within the proposed development shall be provided by a pressurized raw water
irrigation system to be constructed by the Developer, at the Developer's expense, pursuant to
plans and specifications to be approved by the District. At no time and for no reason shall
potable water supplied by the District be used for outside irrigation purposes, except as may be
provided by written exception granted by the District or as may be provided for in District
Rules and Regulations, now or hereafter adopted. As a result of.the Developers' utilization of
raw water only for outside/irrigation purposes, the District agrees that a twenty-five percent
(25 % ) reduction shall be imposed on the water portion of each tap fee assessment. ·
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All construction of the raw water irrigation system shall be in accordance with plans and
specifications prepared by a professional engineer and approved in writing by the District's
engineer. Construction specifications shall be similar to other raw water systems for which
dedication has been accepted by the District, as provided by Rules and Regulations of the
District to be adopted hereafter, or as otherwise approved by the District engineer. To ensure
that all outside water uses are undertaken from the pressurized raw water system to be installed
by the Developer, the Developer agrees to include in the Protective Covenants affecting the
Petition Property adequate provisions restricting such use and providing penalties therefor,
which penalties may be in addition to the provisions of the Rules and Regulations of the District.
Prior to the recordation of any covenants, said covenants shall be provided to the attorney for
the District for review and comment and to the Board for approval. The raw water sysfem up
to and including the meters and curb stops shall be owned, operated, maintained, repaired and
replaced by the District after the District has accepted dedication of the system. The Developer,
upon completion of the system, shall advise the District in writing and request an inspection
which shall be made within thirty (30) days of receipt of such request. The District shall
identify any deficiencies or remaining items to be accomplished by the Developer and advise the
Developer in writing .. ~Upon satisfactory completion of those items listed, if any, and transmittal
of a two-year full syitem warranty and complete as-built drawings, operating and maintenance
manuals, and proof of release of liens to the satisfaction of the District, the Developer shall be
deemed to have dedicated, .and the District shall accept, the system; provided, however, that the
District shall be under no obligation to accept the system, or any part thereof, if the Developer
is in default of any provision of this Agreement, or any other agreement executed simultaneously
herewith, or referenced herein". The District may accept the system in part at its sole discretion,
reserving all rights to rescind acceptance if the remaining portions are not satisfactorily
completed. The Protective Covenants shall be recorded simultaneously with the final
subdiyision p,lat,. . . . . .. •
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To the extent the raw water system is not accepted by the District, the raw water
irrigation system shall be owned, operated, maintained, repaired, and replaced by a property
owners' association to be created by Developer at the time of final plat, as set forth more
specifically in the line extension agreement( s) described hereafter in Paragraph 8, as referenced
below, to be entered into by and between the parties; except that a property owner's association
need not own those portions of such systems installed beyond the meters and curb stops on
individual privately-owned lots.
6. Water Rights Dedication. For the Petition Property and any other parcels which
receive District water service, the requirements for dedication of water rights to the District, as
set forth in Article X of the Rules and Regulations, shall be satisfied by dedication or the
payment of cash in lieu of actual water rights, unless otherwise agreed. Whether such
requirements shall be met by dedication of water rights or by cash payment shall be at the sole
discretion of the Board. The amount of any cash payment shall be Fifty Dollars ($50.00) per
in-house EQR times the number of total EQRs associated with the. development of the Petition
Property. For purposes of water rights dedication, it is understood that the Fifty Dollars
($50.00) per EQR fee includes no payment for irrigation, of open space or otherwise .. Fees for
such amounts shall be separately assessed based on District Rules and Regulations. As it has
been calculated by the Developer that the total number of EQRs associated with the development
is approximately 300, the total cash in lieu of actual water rights to be paid to the District by the
Developer is currently estimated at.$15,000.00. If at the time of final plat a different number
of EQRs is calculated, additional water rights dedication shall be due to the extent the total EQRs
approved for development exceed 300. The amount currently estimated shall be paid to the
District, or the water rights dedication shall, occur within ten (10) days of the date of inclusion
and any adjustment based on final plat approval shall be
pa~d or dedicated within ten ( 10) days
of the date of such approval. The District shall not be required to return any amounts paid or
dedicated.
It being the intent of the District to require dedication of any and all rights and interest
of the landowners to or in water rights to Blue Creek, the Landowners agree that they shall
reserve for dedication to the District all water rights to which they have any interest in Blue
Creek. They agree not to dispose of, transfer or grant any such water rights now owned or
hereafter acquired without prior approval of the District from the date of execution of this
Agreement.
7. Easemwts. The final plat(s) of the Petition Property shall dedicate for no
additional consideration utility easements as required and approved by the District across the
Petition Property, which shall be particularly described on the final utility plan and/or final
plat(s). In coruiection herewith, Petitioner and Developer agree to dedicate the above-described
easements to the District on the final plat, free and clear of all liens and encumbrances which
would interfere, as determined by the District, with the District's use of the easements. All
easements to be dedicated shall be general utility easements of a width determined by the
District. Further, Developer agrees to dedicate all other easements, as necessary, for access or
completion o(. work. on the. Petition Property and for f11ture expansion of District services to
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properties west of the Petition Property as may be determined reasonably necessary by the
. District. Such additional easements, to the extent not provided under the Wastewater Treatment
Plant Development Agreement and the Sewer Interceptor Line Extension Agreement, shall be
determined and dedicated at or prior to the time of final plat approval. If the Developer
develops the property with multiple plats, the District may require that an overall master plan
of water and sewer infrastructure be developed and approved by the District to which later filed
plats must conform. At the time of final plat approval, the District shall be allowed to require
the Petitioner and Developer to dedicate an easement or easements to the District associated with
a water storage facility to provide domestic, potable water supply to the Petition Property, if
necessary, which water storage facility shall be located at a mutually agreeable site upon the
Petition Property and may service other District needs.
8. Line Extension Aireement(s). In addition to the Wastewater Treatment Plant
Development Agreement and Sewer Interceptor Line Extension Agreement described in
paragraph 10 of this Agreement related to construction and extens!on of District sewer treatment
facilities, and in addition to the Water System Development and Line Extension Agreement
contemplated by paragraph 9 of this Agreement, at the time of or prior to final plat approval(s)
(which approvals shall include where permitted by the counties a signature of the District), the
Developer shall be required to enter into a standard line extension agreement(s) with the District
in connection with the extension of water and sewer mains to be installed as part of the
development of the Petition Property contemplated by the final plat(s).
9. Water System Facility Installation. It being the intent of the parties that subject
to the provisions of future agreements between the parties as referenced in this Agreement, the
District will provide water service to the Petition Property after inclusion, it is anticipated by
the parties that, in order to serve the Petition Property and properties to the west of the Petition
Property not now in the District and not contemplated for inclusion in the District by this
Agreement, it will be necessary to extend and expand District water system facilities.
Therefore, the Developer agrees to provide the District with the necessary easements for a
District main water line through the Petition Property, as may be necessary in the District's
discretion to service the Petition Property and property to the west of the Petition Property with
water service. The Developer agrees that in accordance with the Rules and Regulations they will
install a District main water loop, if required, at Developer's expense in the size to be
reasonably determined by the District to meet District needs. Developer further agrees that it
will enter into a subs~uent Water System Development and Line Extension Agreement for this
purpose. The District agrees that such Line Extension Agreement shall provide for
reimbursement to the Developer of the additional costs incurred associated with oversizing the
District main water line tq the extent the District receives line extension fee surcharges from
subsequent developers and users of the District main main water line, as it is further extended.
The water main line constructed by the Developer shall be dedicated to the District and upon
acceptance, the District shall be responsible for all operation, maintenance, repair and
replacement of the line; provided, however, in the event the main water line is installed prior
to the time of final plat, Developer shall grant the District a temporary twenty-five foot (25')
constrµct!on ease!Ilent and a twenty-five foot (25') permanent utility easement for the installation ·
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and subsequent operation, maintenance, repair and replacement by the District for such water
line. Furthermore, Developer agrees that the installation of the line shall be considered a public
improvement to be secured by appropriate financial guarantees as required by the District's
Rules and Regulations.
The parties also acknowledge and understand that other wholesale water service facilities
may be required to service the Petition Property and properties not now in the District to the
west of the Petition Property. The Developer shall construct such facilities at its own expense .
Such facilities may include, without limitation, additional District water wells, pumping
facilities, and water storage facilities. Developer specifically agree that to the extent such
facilities provide water service capacity to service the Petition Property, the Developer shall be
responsible for a pro rata share of the cost of such facilities. The Developer's pro rata share
shall be that portion of the cost of the installation of the facilities represented by a reasonable
estimate of the Petition Property's fully developed water service facility needs as a function of
the overall capacity of the facilities constructed. The balance of !be cost shall be reimbursed to
the Developer first by credits applied to future tap fees from the District calculated at the tap fee
rates in effect at the time construction is requested by the District. Any remaining balance due
the Developer shall be paid to the Developer within sixty (60) days after completion and
acceptance by the District of all such facilities constructed. In the event it is determined by the
District that an additional water storage tank and/or additional wells are required to service the
Petition Property as fully developed, the Developer agrees it will install any necessary
additional water storage tanks and wells if requested by the District to do so, whether or not
such facilities are located on the Petition Property, prior to the sale of any lot on the Petition
Property. After such installation and approval by the District engineer, the Developer shall
dedicate such facilities to the District. Upon acceptance, the District shall be responsible for all
operation, maintenance, repair and replacement of any such facilities.
It is recognized by the parties that at the time this Agreement is entered there is
insufficient information available to estimate or predict the extent of the District's water service
facility needs, and planning for those needs has not been sufficiently accomplished to identify
appropriate physical locations for such facilities if needed. The District agrees that prior to, or
upon approval of an expanded District service plan by Eagle County and Garfield Counties, it
shall commence the necessary planning activities to identify such needs as they relate to the
Petition Property. Such planning shall be completed by the District no later than the date of
effective inclusion of4he Petition Property in the District. The District further agrees that to the
extent
it deems it neaessary to construct such facilities on the Petition Property, the District shall
include in a Water System Development· and Line Extension Agreement provisions for
reimbursement to the Peti.tioner and Developer' pursuant to the Rules and Regulations of the
District of the cost of such installation beyond that portion for which the Developer will be
responsible as outlined in the preceding paragraph.
10. Sewer System Facility Installation. It being the intent of the parties that subject
to the terms and conditions of this Pre-Inclusion Agreement and the terms and conditions of
other.agreements as referenced herein,·lhe District will-provide water and sewer services to-the
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Petition Property, Developer agrees that it shall construct for the District a wastewater treatment
plant of a type to be determined by the District, and· District sewer interceptor line with
associated facilities, including lift stations, and dedicate the same to the District in accordance
with the terms and conditions of the Wastewater Treatment Plant Development Agreement and
the Sewer Interceptor Line Extension Agreement both to be executed with this Agreement. The
Developer acknowledges that full financial guarantees for the cost of design of the Plant may be
required by the District in addition to other guarantees required pursuant to District Rules and
Regulations for the construction of the wastewater treatment plant, and if applicable, the sewer
interceptor line. Upon acceptance of the wastewater treatment plant and the sewer interceptor
by the District, the District shall be responsible for all operation, maintenance, repair and
replacement of the line, except to the extent otherwise provided in the Wastewater Treatment
Plant Development Agreement and the Sewer Interceptor Line Extension Agreement.
11. Conditions Precedent to Inclusion. The following four ( 4) conditions shall all be
conditions precedent to the obligation of the District to include the Petition Property in the
District: ·
A. Satisfactory performance of all the terms and conditions of the Wastewater
Treatment Development Agreement and the Sewer Interceptor Line Extension
Agreement (the "Infrastructure Agreements") to be executed with this
Agreement, or executed within seventy-five (75) days following the date of this
Agreement. In the event the Infrastructure Agreements are not executed within
seventy-five (75) days of the date of approval of this Agreement, this Agreement
shall terminate unless amended to extend this period.
B. Receipt of all necessary approvals from state and local government entities for the
water and wastewater expansion of the District to the west to include the Petition
Property and the Plant Property at a minimum, and the construction of a second
District wastewater treatment plant and interceptor line. Such approvals shall
include, but not be limited to, approval of a 1041 Permit by Eagle County,
approval of an expanded District service plan by Eagle County, approval of an
expanded District service plan by Garfield County, approval of a 201 Plan, if
required, and approval of a treatment plant site application by the Colorado
Department of Public Health and Environment. Approval by governmental
entitie§.. of the necessary permits, or other regulatory approvals, shall be
satisfictory to meet this condition if such approval is made without conditions
based on application made by, or approved in writing, the District.
If any necessary approval as contemplated in this paragraph is received with
conditions, the District shall have the right to refuse to accept such conditions and
may declare such approval unsatisfactory for purposes of meeting this condition;
provided, however, that conditions placed on development land use approvals
shall ·not give the District the right to refuse to accept the condition as satisfied
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.·. -....... . ~. fo,r purposes of this Agreement, so long. as. the. Developer bears all costs ·
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c.
D.
associated with such land use approval conditions.
Approval by Garfield County of a comprehensive plan modification and a
rezoning request by the Petitioner and/or the Developer of the Petition Property
to permit residential development of the Petition Property satisfactory to the
Developer. The Petitioner and Developer agree that application for such rezoning
of the Petition Property shall be made to Garfield County within 120 days of the
execution of this Agreement and they shall make their best efforts to pursue the
rezoning. The Developer shall also have the right to refuse to accept any
conditions on development land use approvals and may declare such approvals
unsatisfactory for purposes of meeting these conditions. To the extent the
Developer chooses to proceed despite a condition on the land use approvals which
the District finds objectionable, the costs of complying with that condition will
not be included in any subsequently approved calculations for determining plant
or interceptor cost for Developer tap allocation purposes or Developer line
extension fee reimbursements.
The District agrees to cooperate with the Petitioner and Developer to provide
representations regarding the availability of water and sewer services to the
Petition Property consistent with this Agreement, the Infrastructure Agreement,
and any other subsequent ancillary Agreements.
Final acquisition by the Developer and/or its assigns of the Petition Property and
the Plant Property or such other property, as the District may choose to later
designate as the Plant Property as provided in.Paragraph 13. hereafter.
Petitioner and Developer agree that in the event the three (3) conditions precedent
described in 11.A., B. and C., are performed or satisfied, each will immediately use their best
efforts to close the purchase and sale of the Petition Property. Further, the Developer agrees
that in the event the three (3) conditions precedent described in Paragraphs 11.A., B. and C. are
met or satisfied, and title to the Petition Property has transferred to the Developer, it they will
use its best efforts to close the purchase of the Plant Property.
Any declarations that an approval as contemplated herein is unsatisfactory, as a result of
conditions imposed by A governmental agency, must be made in writing to the other party within
forty-five (45) days
q,f the date of such approval, or the right to so declare shall be waived .
Later acceptance of the condition shall be deemed to rescind any such declaration .
.
In the event that any of the conditions precedent herein listed are not met, this Agreement
may be terminated by the other party upon ten (10) days' written notice. In the event this
Agreement is terminated, the District shall be under no obligation to include the Petition
Property, nor shall it be under any obligation under any other agreement referenced herein,
including the Infrastructure Agreements, except to the extent that the Infrastructure Agreements
provide.for
r~mb.ursement of Developer costs in the event.of termination at, or after,.certain . .
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levels of design development.
It is understood that all costs associated with the preparation of the necessary applications
for approval and other service costs as defined in Paragraph 2 of this· Agreement, are Developer
costs and termination of this Agreement as a result of lack of approval from state or local
goverrunent entities by either the District or the Developer shall not be considered the fault or
breach of either. No such termination shall relieve the Developer of the obligation to pay the
full costs incurred for preparation of approval applications up to and including the date of
termination. In the event, however, that the District exercises any right given to it to relocate
or resize the contemplated wastewater treatment plant or sewer interceptor after the design of
either of them has proceeded past the sixty-five ,percent (65 % ) design completion level with
approval by the District, the District shall be responsible for any increased cost in the
preparation of applications for necessary approvals, whether or not this Agreement is
terminated.
12. Remedies. A breach of this Agreement, or a breach of either of the Infrastructure
Agreements shall be considered a breach of all agreements. Any and all remedies specified
under each or any of these Agreements are cumulative and are not intended to be exclusive of
any other remedies to which the parties may be lawfully entitled. None of the remedies provided
to either party under any of these Agreements shall be required to be exhausted or exercised as
a prerequisite to resort to any further relief to which it may then be entitled. Every obligation
assumed by or imposed upon either party hereto shall be enforceable by any appropriate action,
petition, or proceeding at law or in equity, and may be initiated separately or jointly. This
Agreement may be specifically enforceable .. This Agreement shall be construed in accordance
with the laws of the State of Colorado, and in particular the 'Colorado Revised Statutes and the
Special District Act.
13. The Plant Propeny. The parties acknowledge and agree that at the time of signing
this Agreement it is the intent of the parties to site and construct the plant on the Plant Property
and to accomplish this end the Developer has entered or will enter into the Wastewater
Treatment Plant Development Agreement and the Purchase and Sale Agreement for the Plant
Property. The final determination of the necessary boundaries of the treatment plant site, as well
as the final determination of the size of the Plant Property, shall rest solely with the District to
the extent consistent with and not in violation of the terms of the Developer's option contract for
the Plant Property. ·.Similarly, the parties acknowledge and agree that the final determination
regarding the
siz~ location and the terms and conditions of any grants or deeds for the
easements to be obtained ancillary to the Plant Property for access, utility services, interceptor,
installation, maintenance and repair, and river outfall installation, maintenance and repair, as
well as any necessary well or wells needed to service the wastewater treatment plant to be
constructed, and any easement necessary to be associated therewith, shall be as reasonably
determined by the District in its sole discretion consistent with the terms and conditions of the
Developer's purchase and sale contract for the Plant Property. To the extent any reasonable
extension of the purchase and sale contract is necessary to accomplish the purposes of this
Agre~ment as ~!IY .be reasonably determined by the District, the Developer agrees to use its bes~
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efforts to obtain necessary additional options to accomplish the same.
Finally, it is specifically acknowledged and agreed by the parties that in the event it
becomes apparent that an opportunity to locate the proposed wastewater treatment plant at
another site better suited to the needs of the District and/or its revised service area becomes
available, the Developer agrees that the District may order the Developer to terminate or
abandon its option for the Plant Property and to commence negotiations for the purchase of an
alternate plant site as directed by the District; provided, however, that to the extent any such
alternate plant site would cause the overall treatment plant costs to be greater than those
anticipated to be incurred if construction of the plant occurred on the Plant Property, the District
agrees at its discretion to negotiate in good faith a modification to the Infrastructure Agreements
to reflect such increased costs to be incurred by the Developer, or to provide the additional funds
necessary. Similarly, if the Wastewater Treatment Plant site is relocated after costs have been
incurred for its design, the District shall reimburse the Developer for design costs incurred prior
to this date to the extent prior design efforts cam~ot be revised at. the relocated site.
· 14, Service Plan and 1041 Permit Applications. The preparation of modified water
and/or sewer service area plans to be submitted to Garfield County and Eagle County and the
preparation of a 1041 Permit application to Eagle County for construction of the Plant shall be
the responsibility of the District .
The parties agree, however, that the cost of applications to be prepared for approval by
Eagle County and Garfield County for expansion of the District's water and/or sewer service
plans and for approval of a 1041 permit for plant expansion, shall be the responsibility of the
Developer. The Developer shall provide such financial guarantees as the District may require
not to exceed the estimated cost of application preparation. Within seventy-five (75) days of
the execution of this Agreement, the District shall cause preparation of such applications to be
commenced, or it shall direct the Petitioner or Developer to do so; provided, however; that if
such applications are prepared by the Petitioner or Developer, the District shall be regularly
consulted during the development of documentation for such applications and shall have a right
of final approval over all aspects of the service plan expansion application. The parties agree
that absent an express modification of this Agreement, the initially contemplated minimum size
of an expanded service area for the· District shall be as noted on the service plan drawing
attached hereto and incorporated herein by reference as Exhibit C; provided, however, that in
the event petitions to"be excluded are received by the District, or in the event other objections
by third parties are 1:eceived by the District, the District may determine or direct that the size
of the service area shall be reduced to satisfy such objections._ The District further reserves the
right in its sole discretion, \o order enlargement rif the size and extent of the District service area
to be included in the District's service area expansion application. The parties agree to
cooperate and proceed in good faith to develop and complete applications to Eagle County and
Garfield County for service plan expansion and a 1041 Permit application as contemplated herein
no later than 180 days after execution of this Agreement. The parties agree that the District shall
be permitted to make the sole decision regarding the ultimate size and extent of any revisions
to its service area, and that in the event it should be determined by the District that·approval
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cannot be obtained to expand the District service area to an extent deemed necessary by the
District, the District may abandon all efforts to expand the District service area, in which event
this Agreement shall be terminated upon receipt by the Landowners of written notice from the
District. The District specifically agrees, however, that service area expansion to the west
which includes the area indicated on Exhibit C, will be considered satisfactory expansion and
no right to terminate shall accrue if approval of the area so indicated can be obtained, except as
otherwise provided in Paragraph 11.B.
15. Plant Sjte Application. The preparation of the Site Application to be submitted
to the Colorado Department of Public Health and Environment for the new wastewater treatment
plant pursuant to law shall be the responsibility of the District. The parties agree, however, that
the cost of the application to be prepared for approval by the Colorado Department of Public
Health and Environment shall be the responsibility of the Developer. The Developer shall
provide such financial guarantees as the District may require not to exceed the estimated cost
of application preparation. The District shall cause preparation of the Site Application to be
commenced, or it shall direct the Developer to do so, within thfrty (30) days of the .execution
of the Infrastructure Agreements; provided, however, that if such applications are prepared by
the Developer, the District shall be regularly consulted during the development of the
documentation for such application and shall have the right of final approval over all aspects of
the site application. Simultaneously with commencement of preparation of the site application,
the District shall commence preparation of an application for approval of an expanded service
area by Eagle County and Garfield Counties and approval of the 1041 Permit by Eagle County.
The parties agree that absent an express modification to this Agreement, or absent specification
of a differing size in the Infrastructure Agreements, the size of the plant to be initially
constructed, for which the site application shall be prepared shall be approximately 100,000
g.p.d., but the District reserves the right, in its sole discretion to order enlargement of the
proposed initial capacity of the plant to be constructed as contemplated by the Site Application;
provided, however, that the District agrees that in such event it shall negotiate in good faith for
any necessary modification of the Infrastructure Agreements between the parties to further
compensate the Developer for any increased costs associated with an increase in the plant
capacity contemplated, or to provide any necessary funds associated therewith, but only to the
extent such ordered expansion of capacity exceeds by more than twenty-five percent (25 % ) the
100,000 g.p.d. capacity contemplated.
NotwithstancURg the foregoing, the parties acknowledge and agree that the site application
may contemplate an.ultimate plant capacity adequate to service the regional needs on expanded
District, as determined by the District in its sole discretion. It is acknowledged by the parties
that the ultimate plant capacity needs are currently estimated at approximately 1.3 m.g.d., but
that in the event during the term of this agreement the plant site is relocated, or the service area
is further expanded to an extent not initially contemplated by this agreement, the parties
acknowledge and agree that the ultimate plant capacity necessary to service regional needs could
further expand and the Developer agrees to cooperate with the District in defining and providing
for such further expansion.
·. ~· -;, ..........
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16. Release and Replacement of Petitioner. The parties agree that at such time as the
. Developer becomes the owner in fee title of the Petition Property, the original Petitioner shall
have no further obligations to the District pursuant to this Agreement, and Developer shall
automatically replace the original Petitioner in the Petition for Inclusion, provided that at the
time of closing on the Petition Property the Developer assumes all obligations of the Petitioner
pursuant to this Agreement.
17. Effectjye Date. It is acknowledged by the parties that this Agreement is
contingent upon the passage of a resolution by the Board of Directors of the District approving
of the inclusion of the Petition Property into the District. The resolution shall specify that
ipclusion is contingent upon satisfaction of all conditions precedent specified in this Agreement
and execution within the specified time of the Infrastructure Agreements. The parties expressly
agree and acknowledge that the effective date of inclusion will not occur until all conditions
precedent have been performed or satisfied and a court order has been signed pursuant to C.R.S.
§32-1-401 formally including the Petition Property in the Distric;t.
18. Notice. This Agreement shall constitute actual notice to any and all future users
of District services on the Petition Property, and all owners, tenants, or other persons who
occupy units or reside upon the Petition Property of the terms and conditions herein .
19. Notices. All notices, requests, demands, consents, and other communications
pertaining to this Agreement shall be transmitted in writing and shall be deemed duly given when
received by the parties at their addresses below or any subsequent addresses provided to the
other party in writing.
Notice to Mumbert Cerise
Family Company:
Notice to Wintergreen Homes
Limited Liability Company:
Notice to Dis~ict:
With copy to:
17072 Highway 82
Carbondale, CO 81623
Arthur Kleinstein, Manager
305 Madison
·Denver, CO 80206
Mid Valley Metropolitan District
0031 Duroux Lane, Suite A
Basalt, CO 81621
Leavenworth & Tester, P.C.
P. 0. Drawer2030
Glenwood Springs, ·co 81602
20. Binding Agreement. This Agreement shall be binding upon and inure to the
benefit
oft~ Pl!rties. and their successors, assigns, heirs, devisees, or transferees .. · "·
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21. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Pre-Inclusion Agreement ·should be breached by either party and thereafter
waived by the other party, such waiver shall be limited to the particular breach so waived and
shall not be deemed to waive any other breach hereunder, including a subsequent breach of the
same agreement .
22. Covenants in This Af,!reement. The parties agree and intend that this Agreement
shall run with the Petition Property and be a burden and covenant on that Petition Property .
23. Complete Al,!reement. This Agreement constitutes the entire and complete
agreement of the parties on the subject matter herein. No promise or undertaking has been made
by any party, and no understanding exists with respect to the transactions contemplated, except
as expressly set forth herein. All prior and contemporaneous negotiations and understandings
between ihe parties are embodied and merged into this Agreement.
24. Enforceability. If any covenant, term, condition, or provision of this Agreement
shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability
of such covenant, term, condition, or provision shall not affect any other provision contained
herein.
25. Goyernjnl,! Law. This Agreement shall be governed by the laws of Colorado,
which state shall also be deemed .the place where this Agreement was entered into and the place
of performance and transaction of business of the parties. Ill the event of litigation pertaining
to this Agreement, the exclusive forum, venue, and place of jurisdiction shall also be Colorado,
unless otherwise designated in writing by the parties.
26. Authority. Each person executing this Agreement represents and warrants that
he or she has been duly authorized by one of the parties to execute this Agreement and has
authority to bind said party to the terms and conditions hereof .
27. Assif,!nment. Any assignment or attempt to assign any portion of the Petitioner
or Developer's rights or obligations shall be void and of no force and effect unless the Petitioner
or Developer shall have attained the written consent to any such assignment from the District.
Approval of such asgj-gnment, if given, shall not release the Petitioner and Developer from any
responsibility or lialaility under this contract.
28. Warranty of Authorjty.· Each person executing this agreement represents and
warrants that he or she has been duly authorized by one of the parties to execute this agreement
and has the authority to bind said parties to the terms and conditions thereof.
29. Attorney Fees and Costs. In the event that legal action is necessary to enforce the
provisions of this Agreement, the prevailing party shall be entitled to damages and reasonable
attorney.fees.and costs. · · "·
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30. Amendments. This Agreement may be amended from time to time by
ame.ndments made by the parties in written form and executed in the same manner as this
Agreement.
31. Counterparts. This Agreement may be executed in duplicate counterpart
originals, each of which shall constitute an original but all of which shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
set forth next to their signatures.
-
..........
F:\1998\0ocs-Agmts\MVMO.Cerise·Wlntergrccn-Agmt-1-clean.wpd
MID VALLEY METROPOL~TAN DISTRICT
·~~ ...._-·-.-~ ,•' • i I
;' . . //
Pr6sid~nt · ~ .
MUMBERT CERISE FAMILY COMPANY
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U::cerise Family Company
WINTERGREEN HOMES LIMITED LIABILITY
COMPANY·
Wintergreen Homes Limited Liability Company
-15-
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STATE OF COLORADO
COUNTY OF
~A-r..LE
)
) SS.
)
Acknowledged, subscribed, and sworn to before me this ?.~~ day of J'"~
199.a'., by I~~-G~ , as President, and \Zob<=>.rl-Cl.o...d:.. , as
Secretary, on behalf of the Midalley Metropolitan District.
WITNESS my hand and official seal.
My Commission expires:
<;;.-9. -·;;l.co-a.
STATEOFCOLORADO )
) SS.
COUNTY OF )
STATE OF COLORADO )
' I ) SS.
[ J COUNTY OF )
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Acknowledged, subscribed, and sworn to before me this __ day of ____ _
1996, by Wintergreen Homes Limited Liability Company.
WITNESS Ii)' hand and official seal.
My Commission
e~pires: --------
Notary Public
·, ....... ..,._ ..
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30. Amendments. This Agreement may be amended from time to time by
amendments made by the parties in written form and executed in the same manner as this
Agreement.
31. Counterparts. This Agreement may be executed in duplicate counterpart
originals, each of which shall constitute an original but all of which shall constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
set forth next to their signatures.
METROPOLI AN DISTRICT
By
MUMBERT CERISE FAMILY COMPANY
Mumbert Cerise Family Company
WINTERGREEN HOMES LIMITED
COMPANY
By Arthur Kleinstein, Manager
· ... : .......... .
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STATE OF COLORADO )
COUNTYOF+
) SS.
)
tt. A . Acknowledged, subscribed, and sworn to before me this I<? -day of ""P +-
199<Z., by ~d.c-N!.. '(.. ~~ , as President, and t'.::.~C-\.o..rL , as
Secretary, on behalf of the Ml Valley Metropolitan District.
WITNESS my hand and official seal.
My Commission expires:
s-q-?.a~~
STATE OF COLORADO )
) SS.
COUNTY OF )
Acknowledged, subscribed, and sworn to before me this __ day of ____ _
199_· , by Mumbert Cerise Family Company.
WITNESS my hand and official seal.
My Commission expires:
---~----
Notary Public
STATE OF COLORADO . ) "'AJ ) SS •
COUNTY OF f_fft.·'l/J~)
. ~
,.,; Acknowledged, subscribed, and sworn to before me this~ day o ;-+.=...::..:::..,.....=-
19%, by tyintergreen Homes Limited Liability Company. /
Arthur Kleinstein, as Manager of
'-
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FIRST AIV:IENDMENT TO
MID VALLEY METROPOLITAN DISTRICT
MUMBERT CERISE FAMILY COMPANY, LP
PRE-INCLUSION AGREEMENT
TIIlS FIRST AMENDMENT TO PRE-INCLUSION AGREEMENT is made and entered
into this 6th day of October 1998, by and between the MID VALLEY METROPOLITAN
DISTRICT, a Colorado special district, whose address is 0031 Duroux Lane, Suite A, Basalt,
CO 81621 (hereinafter "District"); and MUMBERT CERISE FAMILY COMPANY, LP, a
Colorado Limited Partnership, whose address is 17072 Highway 82, Carbondale, Colorado
81623 (hereinafter the "Cerise Family" or "Petitioner"); and WINTERGREEN HOMES
LIMITED LIABILITY COMPANY, whose address is 305 Madison, Denver, Colorado 80206
(hereinafter the "Developer"). . The Petitioner and the Developer are hereinafter sometimes
referred to as the "Landowners."
W I T N E S S E T H:
WHEREAS, the Landowners and the District have entered into a Pre-Inclusion
Agreement dated July 27, 1998, to provide for inclusion of the Petitioner's Property into the
District in accordance with C.R.S. §32-l-402(l)(c), subject to certain conditions precedent; and
WHEREAS, the Pre-Inclusion Agreement contemplated the execution of other
agreements for the development of a wastewater treatment fadlity and an interceptor line to the
Petitioner's Property (the "Infrastructure Agreements); and
WHEREAS, subsequent to entering the Pre~Inclusion Agreement the .District has
continued a process of wastewater treatment facility needs assessment and site review, which at
the request of the Colorado Department of Public Health and Environment has included
consideration of various regionalization options in the Mid Valley area, including, but not
limited to, the areas contemplated for inclusion into the District in the Pre-Inclusion Agreement;
and
WHEREAS, the Developer has submitted to Garfield County an application for a
comprehensive plan J:Rodification and a rezoning request as contemplated in Paragraph 11. C. of
the Pre-Inclusion .A,greement and has received notice from the County that its application is
considered incomplete for reason which include lack of an adequate commitment by the District
to provide wastewater treatment services notwithstanding this Pre-Inclusion Agreement; and
WHEREAS, Paragraph 11.A. of the Pre-Inclusion Agreement contemplated the execution
within seventy-five (75) days following the date of execution of the Pre-Inclusion Agreement of
the Infrastructure Agreements, and further provided that in the event the Infrastructure
Agreements were not executed within 75 days, the Pre-Inclusion Agreement would terminate
unless amended to extend the period for execution of the Infrastructure Agreements; and
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WHEREAS, the District and the Landowners mutually view the failure of the satisfaction
of the condition precedent described in Paragraph 11.A. of the Pre-Inclusion Agreement to be
without fault of either party and desire to extend the period by which satisfaction of the condition
precedent regarding execution of the Infrastructure Agreements must be met to avoid tennination
of the Pre-Inclusion Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants and promises of
the parties, and other good and valuable consideration, the adequacy and sufficiency of which
are hereby acknowledged, the parties, on behalf of themselves and their successors, assigns,
heirs, devisees, or transferees, agree as follows:
1. The parties accept and agree to the accuracy of the recitals to this First
Amendment to the Pre-Inclusion Agreement.
2. It is expressly agreed by the parties that this First AI:nendment to the Pre-Inclusion
Agreement is supplemental to the Pre-Inclusion Agreement between the parties dated July 27,
1998. All terms and conditions and provisions thereof, unless specifically modified herein, are
to apply to this First Amendment as though they were expressly rewritten and incorporated and
included herein.
3. It is agreed that the Pre-Inclusion Agreement is and .shall be modified, altered and
changed only as follows:
A.
B.
Article 11.A. shall be modified to delete the words "seventy-five (75) days" at
both locations where this phrase occurs, and to 'substitute the words "one hundred
eighty (180) days" at both locations.
Article 11.B. shall be modified to add the following to the end of the second
sentence of the first paragraph:
; provided, however, that should the District
determine to provide for expansion of the District
by alternate means, including, but not limited to
expansion of the District solely within Garfield
·.County, either through support for formation of a
.• separate district with contractual service obligations
to the District, or otherwise, then the necessary
approvals shall not include approvals by Eagle
County, where such approvals are deemed by the
District to be unnecessary.
C. Article 11.D. shall be modified to add the following to the end of the first
sentence of the first paragraph:
F:\1998\0ocs-Agmts\MVMD-Cerise-Willl~rgn:cn-Agnll-lst-AnM.l.wptl -2-
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The District may, in writing, waive the requirement
that the Developer acquire the Property to be
designated as the Plant Property should it become
necessary for the District to obtain the Plant
Property by condemnation, or otherwise, in which
event, the Developer need not exercise its bests
efforts to close the purchase of the Plant Property,
as hereafter provided, and the Developer's
obligations to provide the Plant Property shall be
replaced by equivalent financial contributions to the
cost of the District acquiring the Plant Property.
D. Article 14 shall be modified to delete the words "seventy-five (75) days" from the
third sentence of the second paragraph and substitute the words "one hundred
eighty (180) days" in place of the words deleted ..
4. This First Amendment may be executed in duplicate counterparts, each of which
shall constitute an original, but all of which shall constitute one and the same document.
Counterparts executed by facsimile transmission shall be adequate for purposes of this First
Amendment to the Pre-Inclusion Agreement. In the event facsimile transmission signatures are
used to execute this Agreement, the parties agree to provide replacement pages with original
signatures after the date of execution of this First Amendment to replace the facsimile
transmission execution pages .
5. The effective date of this First Amendment shall be the date made.
6. In the event of any conflict, inconsistency, variance or contradiction between tlie
provisions of this First Amendment and any of the provisions of the original Pre-Inclusion
Agreement, the provisions of this First Amendment shall in all respects supercede, govern, and
control.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to the
Pre-Inclusion Agreement on the day and year first above written.
By
MID ;q,METROPOLITAN DISTRICT
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Pr sident
Secretary ~·
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MUMBERT CERISE FAMILY COMPANY
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Mumbert Cerise Family Company
Wintefgreen frames Ifonited!.Liability .Company
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STATE OF COLORADO )
) SS.
COUNTY OF ~-·-'' <. )
Acknowledged, subscribed, and sworn to before me this :'.,.-.. day of C> ': -""·"
1998, by ~._, ,A,,.,.._ c . !.", : .•. •. , as President, and C ... · -·'. • .. · <.' _ , as
Secretary, on behalf of the Mid-Valley Metropolitan District.
WITNESS my hand and official seal.
My Commission expires: :»·· 1 .. ·\,:·r· ..
STATE OF COLORADO
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COUNTY OF 0'-,\'.:..-
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Notary Public
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Acknowledged, subscribed, and sworn to before me this ..!::...::__ day of o.-:-;r. !_ .• :. c-
1998, by \>· ..... ,, .• ·-;; ,_., __ ,-.·; . .._ , on behalf of the Mumbert Cerise Family
Company .
WITNESS my hand and official seal.
My Commission expires: ·,,··: · -~~-~~-·:.
STATE OF COLORADO )
) SS.
)
Notary Public
... i... _., '
Acknowledged, subscribed, and sworn to before me this_·._._·_ day of ,·_ .. .,. :."'-·.·.-
1998, by 1-\-;. ( · ~·. , .. ; .. _ , on behalf of the Wintergreen Homes
Limited Liability C&mpany.
WITNESS my hand and official seal.
My Commission expires:--':_.,-._':_:~_-.:_:._-:._. __ _
(. '·. ·-----
Notary' Public
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.. -r '99
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SECOND AMENDMENT TO
MID VALLEY ME.TROPOLlTAN DISTRICT
MUMBER.T,CERISE FAMILY COMPANY, LP
PRE-iNCLUSION AGREEMENT
THIS SECOND AMENDMENT TO PRE-INCLUSION AGREEMENT is made and
'. ·] entered into this 19rnday ofJanuaiy 1999, by and betwmitheMID VALLEY .ME!R'.OPOLITAl'\J
DISTRICT, a Colorado special district, \Miose address is 0031 DurouxLane, Suite A. Basalt, CO
81621 (hereina~er "District"); and MUMBERT CERISE FAMILY COMPANY, LP, a Colorado
·.] Limited Partnership, whose address is 17072 Highway 82, Carbondale, Colorado 81623
(hereinafter the "Cense Family'' or "Petitioner"); and WINTERGREEN HOMES LIMITED
LIABILITY COJ\.1PANY, whose address is 305 Madison, Denver, Colorado 80206 (hereinafter
·. j the "Developer"). The Petitioner and the Developer are hereinafter sometimes referred to as the
"Landowners." ·
' l WIT N E·S S ~''r H:
WHEREAS, the Landowneis and the District have entued into a Pre-Inclusion Agreement
: .• J dated July 27, 1998, as amended October 6~ 1998, to pro,,ide for inclusion of the Petitioner's
. Property into the District in accordance with C:R S. §32-l-402(1Xc), subject to certain conditions
precedent; and '
: ] WHEREAS, the Pre-Inclusion Agn:ement contemplated the eii:ccution of other agteements
for the development of a ·wastewater treatment facility and an interceptor line to the Petitioner's
~ j Property (the "lnfrastr,ucrure Agreements); and
w;HEREAs, the District's process of wastewater treatment facility needs assessment and
'.,·· ] site revlew'IO consider regionamation with the Board ofDirecton of the Ranch@ Roaring fork
is continuing; and ' ' ·
'. l WHEREAS, the Landowners and the District desire to extend for a second time !he period
. for execution of the Infrastructure Agreem~nts· contemplated in Paragraph 11.C. of the Pre·
Inclusion Agreement to pennit the Developer's Garfield County land use application for a
L ] compreh,ensive plan modification and a r~oning to be considered .
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. NOW, tHEREFORE, for and in consideration of the mutual covenants and promises of
the parties, and other go~ and valuable consideration, the adequacy and sufficiency of which are
hereby acknowledgccj, ~e parties, on behalf of themselves and their successors, assigns, heirs,
devisees, or transferees, agree as follows:
·L, · .. 'The recitals to this Second Ar,J.endment are incorporated herein.
2. This Second Amendment to the Pre-Inclusion Agreement is supplemental to the
Pre-Inclusion Agreement between the parties dated July '}.7, 1998, as amended. Alf temis and
conditions and provisions thereof, unless spedfically modified herein, are tc apply to this Second
01: 27PM PATRI~r STOWE.LL~""""'"' ' C'· ' ..
'99
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,4rendment as thO\lgh they were expressly re~tten and incorporated and included herein.
· 3, The Pre-(nclusion Agreement is ~d shall be changed as follows:
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A.
B.
Article I I.A shall be modifo:d to delete rhe words "one hundred and eighty (I 80)
days" at both loc:ations where this phrase occurs, and the words "t,hree hundred
and sDcty five (365) days" shall be substituted at both locations.
Article 14 shall be modified to d~lete the words "one hundred and eighty ( 180)
days,. from the third sentence of the second paragraph and substitute the words
''three hundred and sixty five (365~ days" in place of the words deleted.
' ] 4, This Second Amendmenr may be ~ecuted in duplicate counterparts, each of which
t all constitute: an original/,obut all of which shall constitute one and the same document.
Counterparts exe!luted •by fac:Similc iransmission :shall be adequate for purposes of this Second.
I 1nendment to the Pre-Inclusion Agreement; (n the event facsimile transmission signatures are
1:.Jed to ~ecure this Agteement, the panics agree to .pwvide replacement pages with original
~ignat~re~ · after th~ date of eitecution of this Second Amendment to. replace the facsimile
t lnsrruss1on execution· pages.
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5. The effective date of this Second Amendment shall be the date made.
6. In the event of arry conflict, inconsistency, variance or oontnidiction berween the
erovisions of this Second Amendment and any of the provisions of the original Pre-fnclusion f ~ent or thefim Amendment to the Pre-Inclusion Agreement, the pro~ions of this Second
J.Jnendment $hall in all respects supercede, govern, and control.
. . . .
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I IN ~SS WHEREOF, the parties hereto have eir::ec~ted this Second Amendment to
hie Pre-Inclusion Agreement on the day and year:first above wntten.
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By
MUMB~.CE~~~ ~~~-COMPANY
Kf~cerise Family Company
' WINTERGREEN HOMES LIM ABILITY
COM? ANY
P,3/4
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STATE OF COLORADO ) ' .
couNrl:bF fit14CE ~SS. ,,,
: tt.dl... .,... "' Acknowledged, subscribed, and sworn to before me this ·_l _-day of -.J(LAl.Aft.r..,.Qa;
199i; by !l..£<,..~. k'. . C~~ • as President, and ~ct C'.J.,>£1;:_ . _
Secretary, on behalf of the Mid alley Mett~politan District ·
WITNESS my hand and official seal.:
My Commission expires: '5.·-9. • d-.m ';)..
.. ·
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STATE OF COLORADO
COUNTY OF 5AG~
)
) SS.
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WITNESS my hand and official seal.·
My Commissfon expires: S··''c.-9~~
STATE OF COLORADO
COUNTY OF C.A<:i !J:
)
)ss.
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1 · Acknowlec;f.ged, subsi;ribed, and swo~ to before me this Ji..: day of x~+
1991, by Av+· '?\.~~sl:~.&°"'"' : , on behalf of the Wintergreen Ho
Limited Liabihty ComPbriy. , ·
Wl'JNESS my hand and official seal.
My Commission expires: '5· '( -d.c~?..
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