HomeMy WebLinkAbout26.00 RFWSD Pre-Inclusion AgreementROARING FORK WATER AND SANITATION DISTRICT,
CARBONDALE INVESTMENTS, LLC, AND
GARFIELD COUNTY COMMERCIAL INVESTMENTS, LLC
PRE -INCLUSION AGREEMENT
This Pre -Inclusion Agreement (this "Agreement") is made and entered into as of the last
date written below (the "Effective Date"), by and between the Roaring Fork Water and
Sanitation District, a Colorado special district ("District"), Carbondale Investments, LLC
("CI"), and Garfield County Commercial Investments, LLC ("GCCI"), herein referred to as the
"Parties."
RECITALS
A. The District is a Colorado special district, organized and operating under authority
of C.R.S. §§ 32-1-101 et seq., and the District's Service Plan ordered and decreed by the
Garfield County District Court in Case No. 94CV29, as amended by the Service Plan
Amendment dated December 2000, and approved by the Board of County Commissioners for
Garfield County on May 7, 2001, under Resolution No. 2001-28 (collectively, the "Service
Plan") and the RFWSD Rules and Regulations (the "Rules and Regulations") promulgated
thereunder, for the purpose of providing water and sewer service in Garfield County, Colorado.
B. CI is the owner and is the developer of that real property located in Garfield
County, Colorado, more particularly described in Exhibit A attached hereto and incorporated
herein by this reference ("CI Property") and generally depicted on the map attached as Exhibit
B, which real property CI desires to have included within the District's boundaries in order to
receive water and sewer service from the District.
C. GCCI is the owner of that real property located in Garfield County, more
particularly described in Exhibit C attached hereto and incorporated herein by this reference
("GCCI Property") and generally depicted on the map attached as Exhibit B, which real
property GCCI desires to have included within the District's boundaries in order to receive water
and sewer service from the District.
D. The District has determined that the CI Property and GCCI Property each
constitute "[r]eal property capable of being served by the facilities of the District ..." as that
phrase is used in C.R.S. § 32-1-401, for purposes of the inclusion of real property within a
special district.
E. CI has applied to Garfield County, Colorado (the "County"), for approval of
planned unit development zoning ("PUD") for approximately 366 total dwelling units, together
with approximately 10,000 square feet of community center space, and necessary utility and
maintenance buildings (the "CI Project"). Subsequent to PUD and Preliminary Plan approval,
CI will apply to Garfield County, Colorado for approval of final plats for phases of the PUD.
The development contemplated by the CI Project shall not total more than 375 EQRs as defined
in the Rules and Regulations.
F. GCCI anticipates in the future developing the GCCI Property for residential
and/or commercial uses (the "GCCI Project") but has no immediate plans for the development
of the GCCI Property.
G. CI and GCCI desire to receive water service from the District for all in-house
residential and commercial development on the CI Property and GCCI Property (collectively, the
"Entire Property"), not to exceed 375 EQRs on each property, together with up to seven (7)
acres of incidental irrigation within the Entire Property associated with residential dwellings,
community areas, commercial areas and other miscellaneous outdoor uses.
H. The Parties desire to set forth in this Agreement the circumstances under which
CI and GCCI each may petition for inclusion of its property into the District, and to set forth the
rights and obligations of the party that is first ready (the "First Developer") to develop and
include its property (the "First Property") within the boundaries of the District and the rights
and obligations of the other party (the "Second Developer") to include its property (the "Second
Property") within the boundaries of the District. The term "Developer" is sometimes used in
this Agreement to identify the rights and obligations of both the First Developer and Second
Developer regardless of the order of inclusion of the properties within the boundaries of the
District.
I. CI and the District have prosecuted to conclusion the application in Case No.
08CW198 and the amended application in Case No. 07CW164, Water Division No. 5, and have
obtained decrees which both CI and the District have reviewed and approved. Upon inclusion of
the First Property (as defined below) within the District, CI shall convey to the District the water
rights and plan for augmentation decreed in Cases Nos. 01CW187, 08CW198 and 07CW164,
and assign that portion of its rights under the Basalt Water Conservancy District contract
necessary to serve the First Property in order to allow the District the legal ability to provide
water service hereunder.
J. CI and GCCI each desire to receive sanitary sewer and wastewater treatment from
the District upon the terms set forth herein.
K. Requirements and procedures for the inclusion of property into the District are set
forth in C.R.S. §§ 32-1-401 et seq. and the Service Plan. Pursuant to C.R.S. § 32-1-402(1)(c),
agreements may be entered into "[b]etween 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."
L. The District is authorized by C.R.S. §§ 32-1-1001(1)(d) and 31-35-402(1)(f) to
require reimbursement of its out-of-pocket costs in providing services to the District's customers,
including but not limited to, sewer and water connections, inclusions to the District and planning
and review of line extensions.
M. The District and CI have entered into a letter agreement dated April 29, 2010 (the
"Reimbursement Letter"), which Reimbursement Letter has governed the reimbursement by CI
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of the actual costs incurred by the District relating to the inclusion of the CI Property. In
addition, pursuant to the Reimbursement Letter, CI has replenished in full its initial deposit to the
District of Twenty -Five Thousand and No/100 Dollars ($25,000.00) (the "CI Deposit"). The
Parties desire that as of the Effective Date the payment and reimbursement provisions of this
Agreement shall govern in lieu of such provisions in the Reimbursement Letter.
N. Inclusion of the CI Property and/or the GCCI Property within the District and the
provision thereafter of domestic water service and sewer service by the District upon the terms,
conditions and provisions of this Agreement is consistent with and satisfies all requirements
under the Service Plan, including but not limited to all policies relevant to the provision of water
service to the Regional Service Area as defined therein and all applicable Rules and Regulations
promulgated by the District thereunder. The District is or will be ready, willing and able to
provide water and sewer service when needed to the CI Property and the GCCI Property, on the
terms set forth in this Agreement, and pursuant to its authority, its Service Plan, its Rules and
Regulations, and any other of its policies.
0. The Entire Property was subject to that agreement entitled River Bend Colorado
Pre -Inclusion Agreement between the District and River Bend Colorado, LLC, recorded at
Reception No. 757074 (the "River Bend Agreement"). CI acquired the Entire Property through
foreclosure and subsequently conveyed to GCCI the GCCI Property. As such, the River Bend
Agreement was extinguished and is no longer in effect.
P. The District is amenable to addressing in this Agreement the inclusion of both
properties given that the CI Property and GCCI Property both were previously the subject of pre -
inclusion agreements with the District, and that extending service to the Entire Property is
contemplated by the Service Plan and would be beneficial to the District.
AGREEMENT
ARTICLE 1
INCLUSION OF PROPERTY WITHIN THE DISTRICT
1.1 Inclusion within the District. CI and GCCI each shall file with the District
pursuant to C.R.S. § 32-1-401 a petition to include the entirety of either the CI Property or the
GCCI Property, as applicable, within the boundaries of the District prior to obtaining approval of
the County of a final plat for its property. Upon the District's receipt of a petition for inclusion,
the District shall perform all necessary steps required by law to include the CI Property or GCCI
Property, as applicable, within the boundaries of the District including, but not limited to, the
holding of public meetings, and, if the petition is granted, obtaining an order of inclusion from
the Garfield County District Court and filing and recording said order with the Garfield County
Clerk and Recorder, the Garfield County Assessor and the State of Colorado Division of Local
Government. Said filings shall be complete before the date of the recording of said final plat
within the subject property. If despite good faith efforts the District is unable to obtain the order
or orders of inclusion above described or if said order or orders fail in any material respect to
comply with the terms, provisions and conditions set forth in this Agreement, then the Parties
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shall in good faith negotiate to amend this Agreement or otherwise cure any defects that caused
the failure to obtain the inclusion. If the Parties are unable to reach such agreement, then this
Agreement shall terminate; provided, however, that the provisions in the following Paragraph 1.2
shall survive such termination.
1.2 Reimbursement of District Costs. Except as otherwise provided in this
Agreement, Developer shall reimburse the District for all actual costs incurred by the District
directly relating to inclusion of its property within the boundaries of the District and the District's
review of plans and specifications for the Facilities required hereunder to be constructed for its
project, including engineering, legal, inspection, filing or recording fees and related expenses.
Additionally, CI shall reimburse the District for all actual costs incurred by the District relating
to the District's participation in Cases No. 08CW198 and 07CW164, Water Division No. 5
(collectively, the "District Costs"). Except as otherwise provided in this Agreement, CI and
GCCI each shall reimburse the District for all such actual District Costs upon its receipt of
itemized billings for those services from the District. If CI fails to reimburse or provide written
objection to an itemized billing on or before sixty (60) days after the date CI receives a bill
therefor, then the District may draw upon the CI Deposit to cover the subject District Costs. The
District shall keep the CI Deposit in a separate account of its choosing; provided that the District
shall return the CI Deposit, less any District Costs owed and outstanding to the District, to CI
upon completion of the First Developer Off -Site Water Facilities and First Developer Off -Site
Sewer Facilities (as such terms are defined below) if CI is the First Developer, or, upon
completion of the Second Developer Off -Site Water Facilities and Second Developer Off -Site
Sewer Facilities (as such terms are defined below) if CI is the Second Developer. As of the
Effective Date, the payment and reimbursement provisions of this Paragraph 1.2 shall govern
and such provisions of the Reimbursement Letter shall be of no further force and effect. Prior to
submission to the County of any development plan for the GCCI Property, GCCI shall provide
the District with a deposit in the amount of Twenty -Five Thousand and No/100 Dollars
($25,000.00) (the "GCCI Deposit"), which GCCI Deposit shall be subject to the provisions of
this Paragraph 1.2 as it pertains to the CI Deposit for reimbursement of the District Costs
associated with the GCCI Property and development plan.
1.3 District Charges. Upon the effective date of its inclusion within the boundaries of
the District, the CI Property and GCCI Property, as applicable, shall be subject to the provisions
of C.R.S. § 32-1-402, including without limitation all of the taxes and charges imposed by the
District, and parties receiving water and sewer service shall be liable for their proportionate share
of the annual operation and maintenance charges and the cost of the facilities of the District. The
District shall charge any and all service billings or charges, as the same are defined under the
Service Plan and Rules and Regulations, against that portion(s) of the CI Property and GCCI
Property that has been finally platted on a lot -by -lot basis solely on the same terms and
conditions as other property within the District, and as determined by the Rules and Regulations
then in effect, reserving to the District the right to put all or various portions of the CI Property
and GCCI Property into service areas as provided in C.R.S.§ 32-1-1006.
1.4 District Service. The District shall make available and shall agree to serve the CI
Property and GCCI Property upon the effective date of the property's inclusion within the
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boundaries of the District the requested domestic water and sewer service, subject to the terms,
provisions and conditions set forth in this Agreement, the Service Plan, and the Rules and
Regulations.
ARTICLE 2
WATER FACILITIES EXTENSION AND TAP FEE PAYMENTS
2.1 First Developer's Construction of Off -Site Water Facilities. Prior to connection
to the District's water facilities the First Developer shall design, fund and construct the following
off-site water facilities (collectively, the "First Developer Off -Site Water Facilities"), subject
to Paragraph 2.9 with respect to the Ironbridge Line and Alternative Line (defined below):
2.1.1 The Ironbridge Connection through the Teller Springs Subdivision for the
District water main (the "Ironbridge Line," shown, together with the First Developer Off -Site
Water Facilities described in Paragraphs 2.1.2 through 2.1.4, on Exhibit D) or such alternative
line (the "Alternative Line") as may be determined by the District, in its sole discretion,
provided, however, that the First Developer's obligation shall be limited to a line extension of no
more than 2,600 feet of 12 inch diameter and shall not include any requirement to cross the
Roaring Fork River;
2.1.2 The State Highway 82 water transmission line;
2.1.3 The County Road 109 water transmission line (the "CR 109 Line");
2.1.4 Subject to Paragraphs 2.1.4(a) through (c) below, a 400,000 gallon buried
concrete water storage tank (the "Water Storage Tank") to be sited on property for which CI
holds an easement (the "Tank Site") described, together with its associated access easements,
and generally depicted on the attached Exhibit E; and
(a) If GCCI is the First Developer, CI shall assign its rights in the
Tank Site and access easements to GCCI so that GCCI may construct the Water Storage Tank.
(b) Upon completion of the Water Storage Tank, the First Developer
shall assign its rights in the Tank Site and access easement to the District so that the District may
operate, maintain, repair and replace the Water Storage Tank. Notwithstanding the foregoing,
any excess capacity in the Water Storage Tank shall be reserved for the Second Property and
rights to access and construct a second 400,000 gallon buried concrete water storage tank (the
"Second Water Storage Tank") on the Tank Site, shall be reserved to the Second Developer.
(c) Final design for the Water Storage Tank (the "Final Plan for the
First Tank") shall be subject to the Districts prior approval, which approval shall not be
unreasonably conditioned, delayed, or withheld. The Final Plan for the First Tank shall
demonstrate that the Tank Site is of sufficient size to accommodate the Water Storage Tank and
the Second Water Storage Tank.
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2.1.5 Only if GCCI is the First Developer, the First Developer Off -Site Water
Facilities shall include the water distribution line through the CI Property as shown on Exhibit F
that is necessary to connect the GCCI Property to the other First Developer Off -Site Water
Facilities.
2.2 Second Developer's Construction of Off -Site Water Facilities. The Second
Developer shall, prior to connection to the District's water facilities, design, fund and construct
the following off-site water facilities (collectively, the "Second Developer Off -Site Water
Facilities"):
2.2.1 Subject to Paragraphs 2.2.1(a) through (c) below, the Second Water
Storage Tank to be sited on the Tank Site; and
(a) The Second Developer indemnifies and holds the District harmless
from any and all damages, liens, claims, and liabilities which are incurred by the District and
which arise out of the exercise by the Second Developer of its rights set forth in this Section 2.2,
except to the extent such damages, liens, claims, or liabilities arise out of the negligent or
intentional act or omission of the District.
(b) Final design for the Second Water Storage Tank shall be subject to
the District's approval, which approval shall not be unreasonably delayed, conditioned, or
withheld.
(c) Upon completion of the Second Water Storage Tank, the Second
Developer shall assign its rights in the Tank Site and access easements to the District so that the
District may operate, maintain, repair and replace the Second Water Storage Tank.
2.2.2 A surface water treatment plant to be designed and constructed by the
District at the Second Developer's expense or a similar alternative source of supply of equivalent
cost (either, an "Alternative Supply") necessary to accommodate the 375 EQRs of the Second
Property. At the time of development of the Second Property, the Second Developer shall fund
the engineering, planning, permitting, design, and/or construction of the Alternative Supply to be
constructed and operational prior to connection. The District shall determine at the time of ls`
Final Plat for the Second Property the extent and configuration of the Alternative Supply and the
appropriate funding mechanism to be imposed on the Second Developer to secure the same.
Developer shall not be required to fund the design or construction of any water facilities that are
not required to service the Second Property, provided however, that this provision shall not
prohibit the District from requiring the Developer to oversize certain facilities and for which
Developer may seek reimbursement from outside parties pursuant to Article 6.
2.3 On -Site Water Facilities. The First Developer and Second Developer shall, prior
to connection of its property to the District's water facilities, design, fund and construct, all water
distribution mains, lines and service connections within the boundaries of its property necessary
to provide domestic water service and fire protection to residential lots and to other lots or tracts
proposed for habitable buildings as part of the development of its property (for each property, the
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"On -Site Water Facilities"). The On -Site Water Facilities required for the CI Property are
generally depicted on the attached Exhibit G. The general design and location of the On -Site
Water Facilities for the GCCI Property shall be determined at the time GCCI submits to the
County a preliminary subdivision plan for development of the GCCI Property. Notwithstanding
anything to the contrary contained in this Agreement, Developer shall not be required to design,
fund, construct, or provide security for On -Site Water Facilities necessary to service a phase of
its project unless and until such phase receives final plat approval; provided however, that this
provision shall not prohibit the District from requiring the Developer to oversize certain facilities
and for which Developer may seek reimbursement from outside parties pursuant to Article 6.
2.4 Permits. All required permits for the First Developer Off -Site Water Facilities
and the On -Site Water Facilities for the First Property shall be secured by the First Developer, at
the First Developer's cost, except that location and extent approval by Garfield County pursuant
to C.R.S. § 30-28-110 (the "Location and Extent Approval") shall be secured by the District, at
the First Developer's cost; provided, however, that required permits for the Ironbridge Line or
the Alternative Line, as applicable, including the Location and Extent Approval, shall be secured
by the District, at the District's cost subject to Paragraph 2.9, below. All required permits for the
Second Developer Off -Site Water Facilities and the On -Site Water Facilities for the Second
Property shall be secured by the Second Developer, at the Second Developer's cost, except that
the Location and Extent Approval, if any, shall be secured by the District, at the Second
Developer's cost. The District shall cooperate in good faith with Developer in obtaining all
permits and approvals required for the First Developer Off -Site Water Facilities, the Second
Developer Off -Site Water Facilities, and the On -Site Water Facilities (collectively, the "Water
Facilities"), which cooperation shall include, without limitation, signing or co-signing
applications for permits or other approvals as the owner of the property within which the Water
Facilities will be located or as the future transferee of such Water Facilities.
2.5 Required Rights -of -Way. The First Developer and the Second Developer each
shall use good faith and commercially reasonable efforts to obtain, at its cost, all required rights-
of-way or easements for the First Developer Off -Site Water Facilities and Second Developer
Off -Site Water Facilities, as applicable, where located outside existing rights-of-way and
easements, property owned by the subject Developer, and property owned by the District;
provided, however, that in the event Developer in its reasonable discretion determines that it is
unable to acquire easements from a public entity, the District shall exercise its powers to request
use of easements and rights-of-way held by other public entities. In addition, a Developer shall
secure or transfer to the District required easements across the property of the other Developer.
Except with regard to required easements across the property of the other Developer, in the event
a Developer cannot acquire any easement or right-of-way from a private party necessary for
construction of any First Developer Off -Site Water Facility or Second Developer Off -Site Water
Facility, the District may, in its sole discretion, acquire the easement or right-of-way through its
powers of eminent domain, at Developer's cost, in a timely manner so as to allow for
construction of the First Developer Off -Site Water Facilities and Second Developer Off -Site
Water Facilities, as applicable, by Developer in conjunction with its development.
Notwithstanding the foregoing, existing easements and rights-of-way shall be utilized wherever
practicable. Additionally, notwithstanding the foregoing, the District shall be responsible for
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obtaining, at its cost, all required rights-of-way or easements for the Ironbridge Line or the
Alternative Line, as applicable, subject to Paragraph 2.9, below. The District hereby
acknowledges that it has all rights-of-way and/or easements required for the construction of the
CR 109 Line between the "Proposed Point of Connection" and the western edge of the "River
Crossing" as shown on Exhibit D and that the First Developer shall have no obligation to obtain
any rights-of-way or easements for that portion of the CR 109 Line.
2.6 Security for Water Facilities. Subject to Paragraph 5.3, Developer shall deliver to
the District, on or before the date of recording the first final plat for its property that contains a
lot or tract that requires central water or central sewer service (each a "1st Final Plat"), in its
discretion, security in the form of a letter of credit or a cash escrow to ensure completion of the
First Developer Off -Site Water Facilities or the Second Developer Off -Site Water Facilities, as
applicable, and those certain On -Site Water Facilities necessary to service the residential lots and
other lots and tracts proposed for habitable buildings on the 1st Final Plat for its property. On or
before the date of recording each final plat that is approved for a phase of development
subsequent to the lst Final Plat for its property, Developer shall, in its discretion, provide to the
District security in the form of a letter of credit or a cash escrow to ensure the completion of the
On -Site Water Facilities necessary to service the property included within such final plat.
Notwithstanding anything to the contrary contained in this Agreement, Developer shall not be
required to provide security for or to construct On -Site Water Facilities necessary to service a
phase of development of its property unless and until such phase receives final plat approval.
Upon completion of the Water Facilities for a given phase (or sub -phase), the District shall
promptly notify the County of the same to ensure the County's prompt release of residential
building permits.
2.7 Partial Waiver of Tap Fees. In exchange for construction of the Water Facilities
applicable to its project, Developer shall be deemed to have paid the District's water tap fees for
development within its property. Provided, however, that within thirty (30) days after approval
of each final plat for a phase of development within its property, Developer shall pay to the
District a fee equal to five percent (5%) of the District's then current water tap fee for each unit
approved in each such final plat. Notwithstanding the foregoing, Developer shall not be required
to pay tap fees for units within a phase of its project unless and until such phase receives final
plat approval.
2.8 Obligation to Provide Facilities. Construction by the First Developer of the First
Developer Off -Site Water Facilities and the On -Site Water Facilities required for the First
Property shall satisfy in full the First Developer's obligation to provide facilities for potable
water for 375 EQRs of water demand and the First Developer shall have no further obligation to
participate in funding, designing, and/or constructing other sources of water supply, including
without limitation a surface water treatment plant. Construction by the Second Developer of the
Second Developer Off -Site Water Facilities and the On -Site Water Facilities required for the
Second Property shall satisfy in full the Second Developer's obligation to provide facilities for
potable water for 375 EQRs of water demand and the Second Developer shall have no further
obligation to participate in funding, designing, and/or constructing other sources of water supply.
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2.9 Costs and Completion of the Ironbridge Line or Alternative Line
Notwithstanding anything to the contrary contained in Paragraphs 2.4 and 2.5, the costs incurred
by the District in (i) acquiring the rights-of-way and easements required for the construction and
maintenance of and access to the Ironbridge Line or the Alternative Line, as applicable, and (ii)
obtaining permits for the construction of the Ironbridge Line or the Alternative Line, as
applicable, shall not exceed two -hundred thousand dollars ($200,000.00) (either, the
"Ironbridge Cost Cap"); provided, however, that attorneys' and consultants' costs and fees and
appraisal costs and fees shall not be included in the calculation of the Ironbridge Cost Cap. Any
costs for acquiring the rights-of-way and easements for the Ironbridge Line or the Alternative
Line, as applicable, and for obtaining permits for the construction of the Ironbridge Line or the
Alternative Line, as applicable, in excess of the Ironbridge Cost Cap shall be borne by First
Developer. In addition, notwithstanding anything to the contrary contained in this Agreement,
the First Developer shall not be required to complete construction of the Ironbridge Line or the
Alternative Line, as applicable, prior to or as a precondition for connection to the District's water
facilities so long as the First Developer has provided to the District security for the Ironbridge
Line or the Alternative Line, as applicable, in accordance with Paragraph 2.6 and is proceeding
diligently toward completing construction of the same.
ARTICLE 3
WATER RIGHTS AND PERMITS
3.1 Water Rights Applications. CI and the District have prosecuted to conclusion the
application in Case No. 08CW198 and the amended application in Case No. 07CW164, Water
Division No. 5, and have obtained decrees which both CI and the District have reviewed and
approved.
3.2 Water Rights Dedication. Within thirty (30) days after the date of the entry of the
order of inclusion including the First Property within the District as provided in Paragraph 1.1,
CI and GCCI shall convey to the District by quitclaim deed and appropriate assignment, the
water rights and plan for augmentation decreed in Cases No. 01CW187, 08CW198 and
07CW164, and that portion of CI's interest in the Basalt Water Conservancy District Water
Allotment Contract No. 381b ("Basalt Contract") necessary to serve the First Property. The
District shall have no obligation to provide water service to the First Property until CI has made
such conveyance and assignment. Upon such conveyance and assignment, the First Property and
Second Property each shall have credit for up to 375 EQRs of water service from the District
without the need for any further water rights dedication. Upon conveyance of additional portions
of the Basalt Contract, CI and GCCI shall collectively be entitled to additional water supply
credits up to a total of 1,200 EQRs for the Entire Property. From and after the date of such
conveyance and assignment, the District shall be responsible for all actions necessary to maintain
such water rights and its portion of the Basalt Contract, including without limitation filing
applications for findings of reasonable diligence and maintaining its portion of the Basalt
Contract in full force and effect. CI and GCCI agree to cooperate with the District, and to
participate as co -applicants, and at their own cost, in future water court proceedings requesting
findings of reasonable diligence or to make conditional water rights absolute for those water
rights decreed in Cases No. 01CW187, 08CW198 or 07CW164. The District shall not amend or
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change the water rights subject to the decree in Cases No. 01CW187, 08CW198 or 07CW164 so
as to reduce or diminish the amount or timing of water service to the CI Property and GCCI
Property.
3.3 District Well Permits. The District shall immediately commence and in good
faith timely prosecute efforts to assure that the well permits for the Coryell and Aspen Glen
Wells, owned and operated by the District, are adequate to allow for water service to be provided
from such wells to and within the Entire Property.
ARTICLE 4
SANITARY SEWER AND WASTEWATER TREATMENT FACILITIES
4.1 Construction of Off -Site Sewer Facilities by First Developer. The First Developer
shall, prior to connection to the District's sanitary sewer facilities, design, fund and construct the
following off-site sanitary sewer facilities (collectively, the "First Developer Off -Site Sewer
Facilities"):
4.1.1 The sewer main shown on the attached Exhibit H;
4.1.2 The lift stations shown on Exhibit H; provided, however, that the First
Developer shall be obligated to design, fund, and construct the "Optional Major Lift Station"
depicted on Exhibit H if it is determined by the District's engineer at the time of the 1s` Final Plat
for the First Property that, based on the anticipated development plans for the First Property and
Second Property, the Optional Major Lift Station is necessary to maximize the efficiency, cost
effectiveness, and maintainability of the sanitary sewer system, specifically including, without
limitation, the sewer main crossing across Cattle Creek; and
4.1.3 Only if GCCI is the First Developer, the sewer facilities on, over, under,
and/or through the CI Property as shown on Exhibit I that are necessary to connect the GCCI
Property to the other First Developer Off -Site Sewer Facilities.
4.2 Construction of Off -Site Sewer Facilities by Second Developer. The Second
Developer shall, prior to connection to the District's sanitary sewer facilities, design, fund, and
construct enhancements to the existing lift station(s) and ancillary facilities necessary to provide
sewer service to the Second Property. Notwithstanding the foregoing, the District shall not
require the Second Developer to fund, design, or construct sewer facilities that are not required
for the development of the Second Property; provided however, that this provision shall not
prohibit the District from requiring the Developer to oversize certain facilities and for which
Developer may seek reimbursement from outside parties pursuant to Article 6.
4.3 On -Site Sewer Facilities. The First Developer and Second Developer shall, prior
to connection of its property to the District's sewer facilities, design, fund, and construct, all
sewer mains, lines, lift stations, and appurtenant facilities necessary to provide sewer service to
any residential lot and to other lots or tracts proposed for habitable buildings as part of the
development of its property (for each property, the "On -Site Sewer Facilities"). The On -Site
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Sewer Facilities required for the CI Property are generally depicted on the attached Exhibit J.
The general design and location of the On -Site Sewer Facilities for the GCCI Property shall be
determined at the time GCCI submits to the County a preliminary subdivision plan for
development of the GCCI Property. Notwithstanding anything to the contrary contained in this
Agreement, Developer shall not be required to design, fund, or construct, or provide security for
On -Site Sewer Facilities necessary to service a phase of its project unless and until such phase
receives final plat approval.
4.4 Permits. All required permits for the First Developer Off -Site Sewer Facilities
and the On -Site Sewer Facilities for the First Property shall be secured by the First Developer, at
the First Developer's cost, except that Colorado Department of Public Health and Environment
("CDPHE") site application approvals required for the lift station(s) and Location and Extent
Approval, shall be secured by the District, at the First Developer's cost. All required permits for
the Second Developer Off -Site Sewer Facilities and the On -Site Sewer Facilities for the Second
Property shall be secured by the Second Developer, at the Second Developer's cost, except that
CDPHE site applications, if any, and Location and Extent Approval, if any, shall be secured by
the District, at the Second Developer's cost. The District shall cooperate in good faith with
Developer in obtaining all permits and approvals required for the First Developer Off -Site Sewer
Facilities, the Second Developer Off -Site Sewer Facilities, and the On -Site Sewer Facilities
(collectively, the "Sewer Facilities"), which cooperation shall include, without limitation,
signing or co-signing applications for permits or other approvals as the owner of the property
within which the Sewer Facilities will be located or as the future transferee of such Sewer
Facilities.
4.5 Required Rights -of -Way. The First Developer and the Second Developer each
shall use good faith and commercially reasonable efforts to obtain, at its costs, all required
rights-of-way or easements for the First Developer Off -Site Sewer Facilities and Second
Developer Off -Site Sewer Facilities, as applicable, where located outside existing rights-of-way
and easements, property owned by the subject Developer, and property owned by the District;
provided, however, that in the event Developer in its reasonable discretion determines that it is
unable to acquire easements from a public entity, the District shall exercise its powers to request
use of easements and rights-of-way held by other public entities. In addition, a Developer shall
secure or transfer to the District required easements across the property of the other Developer.
Except with regard to required easements across the property of the other Developer, in the event
a Developer cannot acquire any easement or right-of-way, from a private party necessary for
construction of any First Developer Off -Site Sewer Facility or Second Developer Off -Site Sewer
Facility the District may, in its sole discretion, acquire the easement or right-of-way through its
powers of eminent domain, at Developer's cost, in a timely manner so as to allow for
construction of the First Developer Off -Site Sewer Facilities and Second Developer Off -Site
Sewer Facilities, as applicable, by Developer in conjunction with its development.
Notwithstanding the foregoing, existing easements and rights-of-way shall be utilized wherever
practicable.
4.6 Security for Sewer Facilities. Subject to Paragraph 5.3, Developer shall deliver to
the District, on or before the date of recording the ls` Final Plat for its property, in its discretion,
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security in the form of a letter of credit or a cash escrow to ensure completion of the First
Developer Off -Site Sewer Facilities or the Second Developer Off -Site Sewer Facilities, as
applicable, and those certain On -Site Sewer Facilities necessary to service the residential lots and
other lots and tracts proposed for habitable buildings on the ls` Final Plat for its property. On or
before the date of recording each final plat that is approved for a phase of development
subsequent to the ls` Final Plat for its property, Developer shall, in its discretion, provide to the
District security in the form of a letter of credit or a cash escrow to ensure the completion of the
On -Site Sewer Facilities necessary to service the property included within such final plat.
Notwithstanding anything to the contrary contained in this Agreement, Developer shall not be
required to provide security for or to construct On -Site Sewer Facilities necessary to service a
phase of development of its property unless and until such phase receives final plat approval.
Upon completion of the Sewer Facilities for a given phase (or sub -phase), the District shall
promptly notify the County of the same to ensure the County's prompt release of residential
building permits.
4.7 Wastewater Treatment Plant Expansion. Subject to the requirements of this
Paragraph 4.7, (i) the First Property shall be entitled to receive wastewater treatment service
from the District's wastewater treatment plant for up to 375 EQRs and (ii) the District shall be
responsible, at CI's and/or GCCI's cost, for engineering, planning, permitting, and constructing
an expansion of the District's wastewater treatment plant at the location shown on Exhibit H to a
capacity necessary to accommodate the development of the First Property (the "WWTP
Expansion").
4.7.1 The District shall commence preparation of the engineering, planning, and
design processes required for the WWTP Expansion (the "Expansion Plans"), which preparation
the Parties acknowledge will take approximately one (1) year to complete, upon the earlier of:
(a) The District's receipt of written notice from CI to commence
development of the Expansion Plans; provided, however, that CI shall provide the District with
such notice within a reasonable time from CI obtaining approvals from the County of the PUD
and Preliminary Plan, but prior to CI filing a petition for inclusion of the CI Property within the
District; or
(b) GCCI obtaining approval of a planned unit development plan and
preliminary plan for the GCCI Property.
4.7.2 For purposes of this Section 4.7.2, CI shall be deemed the Developer in
the event commencement of the Expansion Plans is triggered by Section 4.7.1(a), and GCCI
shall be deemed the Developer in the event commencement of the Expansion Plans is triggered
by Section 4.7.1(b). Developer shall be responsible for the costs incurred by the District in
preparing the Expansion Plans. The District shall provide Developer with written monthly status
reports regarding the District's progress in preparing such plans; provided, however, that prior to
commencing work on the Expansion Plans, the District shall obtain Developer's written
approval, which approval shall not be unreasonably withheld, of the District's budget for
preparing the Expansion Plans (the "Design Budget"). The WWTP Expansion shall be designed
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and constructed consistent with and shall not require improvements or facilities in excess of
those which are described in Exhibit K unless otherwise approved by Developer. As part of
preparing the Expansion Plans, the District shall also secure all required permits for the WWTP
Expansion, including, without limitation, CDPHE site application approvals and Location and
Extent Approval at Developer's cost. The District shall obtain Developer's written approval of
the Expansion Plans, which approval shall not be unreasonably withheld. Provided that
Developer has approved the Design Budget and the District complies with the same, Developer
shall reimburse the District for the actual costs it incurs in preparing the Expansion Plans on or
before sixty (60) days after the date Developer receives a bill therefor. In the event Developer,
as defined under this Section 4.7.2, is not the First Developer, Developer may recover its costs
from First Developer for the preparation of the Expansion Plans. On or before thirty (30) days of
the date Developer approved the Expansion Plans, the District shall prepare for Developer's
approval, which approval shall not be unreasonably withheld, the estimated costs and expenses
required to construct the WWTP Expansion in accordance with the Expansion Plans (the
"WWTP Expansion Cost Estimate").
4.7.3 On or before the date of the recording of the First Developer's 1st Final
Plat, First Developer shall deposit with an escrow agent (the "Escrow Agent") funds in an
amount equal to one -hundred and ten percent (110%) of the WWTP Expansion Cost Estimate, to
secure construction of the WWTP Expansion (as may be modified pursuant to Paragraph 4.7.6,
the "WWTP Escrowed Funds"). Any interest earned on the WWTP Escrowed Funds shall be
part of the same. First Developer and the District shall mutually and reasonably agree on the
Escrow Agent and the terms of the escrow agreement. The escrow agreement shall provide,
among other things, that: (i) the District shall have the right, without obtaining First Developer's
prior approval, to draw clown on the WWTP Escrowed Funds up to the amount of the WWTP
Construction Budget (defined below); (ii) the District shall provide First Developer with a
quarterly accounting of the District's costs and expenses related to the WWTP Expansion; and
(iii) upon the District's completion of the WWTP Expansion, any remaining WWTP Escrowed
Funds shall promptly be released to the First Developer.
4.7.4 Promptly following the First Developer's Deposit of the WWTP Escrowed
Funds with the Escrow Agent, the District shall seek fixed price bids for the construction of the
WWTP Expansion in accordance with Colorado law. If the bids received exceed the WWTP
Expansion Cost Estimate, the District shall not accept the lowest qualified bid without the prior
written consent of the First Developer, and the District shall at the request of the First Developer
reject all bids and re -bid the project; provided, however, that the District shall only be required to
re -bid the project two (2) times after the initial bidding process. If the bids received by the
District exceed the WWTP Expansion Cost Estimate after the third time the District has
requested bids, then the lowest qualified bid may be accepted and the District shall not be
required to re -bid the project. The amount of the accepted bid is referred to herein as the
"WWTP Construction Budget."
4.7.5 On or before fifteen (15) days of First Developer's receipt of written notice
that a bid for the WWTP Expansion has been accepted by the District, the amount of the WWTP
Escrowed Funds deposited by the First Developer with the Escrow Agent shall be increased or
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decreased, as applicable, to an amount equal to one -hundred and ten percent (110%) of the
WWTP Construction Budget.
4.7.6 The District shall complete construction of the WWTP Expansion with
commercially reasonable diligence but not later than eighteen (18) months after the District
accepts the bid for WWTP Expansion. In the event the District fails to complete construction of
the WWTP Expansion by such date, to the extent there exists capacity in the wastewater
treatment plant, the District shall provide service to the First Property from the wastewater
treatment plant's existing capacity until such time that the WWTP Expansion is completed.
4.7.7 To facilitate completion of the WWTP Expansion in accordance with the
Expansion Plans, the District may propose reasonable change orders to the First Developer for
review and approval. Within ten (10) days, or such lesser period as may be required under the
circumstances, of receiving notice and a copy of the proposed change order(s), the First
Developer shall either approve the same or propose an alternative(s), which alternative shall not
result in additional cost or unreasonable delay. A failure of the First Developer to respond
within said ten (10) day period shall be deemed to constitute an approval of any requested
change order. All approved change orders, including any change order deemed approved, shall
be incorporated into and become part of the Expansion Plans.
4.7.8 A "Cost Overrun" shall be any cost in excess of the cost identified in the
WWTP Construction Budget as reflected in an approved change order. If the District incurs a
Cost Overrun, the District shall immediately provide written notice to the First Developer of the
nature and extent of said Cost Overrun. The First Developer shall have five (5) business days
after receipt of such notice to provide a written objection to the Cost Overrun claimed, and
actually incurred, by the District. If no objection is provided within this time period, the First
Developer shall be deemed to have accepted such Cost Overrun. If the First Developer provides
to the District written notice of its objection to a Cost Overrun within said five-day period, the
District shall, within five (5) business days of its receipt of the same, establish a date, time and
location for a joint meeting of the District and First Developer for the purpose of determining the
allocation of the subject Cost Overrun among the District and First Developer. Thereafter, the
District may draw down from the WWTP Escrowed Funds the amount of the Cost Overrun
allocated to the First Developer. Notwithstanding the foregoing, the First Developer shall be
responsible for any Cost Overrun incurred by the District as a result of a strike or labor dispute or
a natural condition which was not reasonably anticipated in the Design Budget or the WWTP
Construction Budget, as applicable, and the District shall be responsible for any Cost Overrun
resulting from Cost Overruns not approved by Developer or the District's lack of oversight,
negligence or fraud.
4.7.9 The Parties acknowledge and agree that CI's and/or GCCI's obligation to
fund the engineering, planning, permitting, design, and/or construction of the WWTP Expansion
shall be limited to accommodating only the expansion necessary to meet the anticipated demand
of the First Property. At the time of development of the Second Property, the Second Developer
shall fund the engineering, planning, permitting, design, and/or construction of an additional
expansion to the District's wastewater treatment plant to be designed and constructed by the
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District. The District shall determine at the time of lst Final Plat for the Second Property the
extent and configuration of the required expansion and the appropriate funding mechanism to be
imposed on the Second Developer to secure the same. Notwithstanding the foregoing, any
funding obligation imposed on the Second Developer shall be limited to the cost of increasing
the capacity of the wastewater treatment plant to meet the anticipated demand of the
development proposed for the Second Property.
4.8 Partial Waiver of Tap Fees. In exchange for construction of the Sewer Facilities
applicable to its project, Developer shall be deemed to have paid the District's sewer tap fees for
development within its property. Provided, however, that within thirty (30) days after approval
of each final plat for a phase of development within its property, Developer shall pay to the
District a fee equal to five percent (5%) of the District's then current sewer tap fee for each unit
approved in each such final plat. Notwithstanding the foregoing, Developer shall not be required
to pay sewer tap fees for units within a phase of its project unless and until such phase receives
final plat approval.
ARTICLE 5
CONNECTION TO DISTRICT FACILITIES
5.1 Procedure for Connection to District Facilities. At any time subsequent to the
date of inclusion of its property within the District, Developer may, upon notice to the District
and subject to the terms and conditions of this Agreement, connect to the District's water and
sanitary sewer systems for service to its property.
5.2 Plans and Specifications. The water facilities and sewer facilities described in
Article 2 and Article 4, above, (collectively, the "Facilities") shall be located, constructed and
installed in accordance with this Agreement and in conformance with the Rules and Regulations
in effect at the time of said location, construction and installation. Prior to submission to the
County of the 1St Final Plat for its property, Developer shall provide the District's engineer (the
"District Engineer") with its plans and specifications for Facilities required to be designed,
funded, and constructed for the first phase of its project. Prior to submission to the County of a
final plat for a phase of its project after the 1st Final Plat, Developer shall provide the District
Engineer with its plans and specifications for the On -Site Water Facilities and On -Site Sewer
Facilities necessary to service the property included within such final plat. The District Engineer
shall provide Developer with its written approval or disapproval of the plans and specifications
submitted to it by Developer, which approval shall not be unreasonably conditioned, delayed, or
withheld, within thirty (30) days of its receipt of the same. In the event the District Engineer
disapproves of such plans and specifications, the District Engineer shall by written notice to
Developer specifically describe the reasons for disapproval and the changes necessary to make
the plans and specifications acceptable to the District. On or before ten (10) days of receipt from
Developer of revised plans and specifications which attempt to address the District Engineer's
reasons for disapproval, the District Engineer shall provide Developer with its written approval
or disapproval of such revised plans and specifications. In the event the District Engineer
disapproves such revised plans and specifications, the District Engineer shall by written notice to
Developer specifically describe the reasons for disapproval and the changes necessary to make
15
the plans and specifications acceptable to the District. This process shall be repeated until the
District Engineer approves the plans and specifications; provided, however, that in the event the
District Engineer and Developer are unable to reach agreement on the plans and specifications,
Developer shall have the right to seek approval of its plans and specifications from the District
Board of Directors. In the event Developer and the District Board of Directors are unable to
reach agreement on the plans and specifications, then the District and Developer shall utilize the
dispute resolution procedure set forth in Article 9. Upon approval or resolution of Developer's
plans and specifications, the District and Developer shall execute in duplicate a document clearly
specifying the same to provide both Developer and the District certainty as to the agreed-upon
plans and specifications (the "Agreed -Upon Plans and Specifications").
5.3 LOC or Cash Escrow for Water Facilities and Sewer Facilities. This Paragraph
5.3 establishes the requirements and procedure for the security required by Paragraphs 2.6 and
4.6; this Paragraph 5.3 shall not apply to the First Developer's or Second Developer's obligations
for the WWTP Expansion or to the Second Developer's obligations for the Alternative Supply.
5.3.1 Developer shall provide the District with a construction cost estimate for
all costs and expenses associated with the construction of the Facilities required to be constructed
by Developer for a given phase of its project (each a "Cost Estimate"). The Cost Estimate shall
be approved by the District Engineer in accordance with the timing requirements and procedures
set forth in Paragraph 5.2 for the approval of Developer's plans and specifications.
5.3.2 In order to ensure completion of the applicable Facilities, Developer shall,
in its discretion, either: (i) provide the District with a letter of credit ("LOC") in an amount
equal to one -hundred and ten percent (110%) of the Cost Estimate, or (ii) subject to Developer's
and the District's mutual reasonable approval of an escrow agreement, deposit with the Escrow
Agent funds ("Facilities Escrowed Funds") in an amount equal to one -hundred and ten percent
(110%) of the Cost Estimate.
(a) LOC. If Developer provides an LOC, Developer may, each time it
submits a Certification of Completion (as defined below) to the District, request in writing from
the District the partial release of the LOC attributable to the Facilities that are the subject of the
Certification of Completion. The District may thereafter inspect the subject Facilities to
determine whether the same are complete and comply with the Agreed -Upon Plans and
Specifications; provided, however, that within thirty (30) days of the District's receipt of the
written request for partial release, the District shall either approve the request or deny the request
with written detail as to any aspect of the subject Facilities that the District reasonably
determines does not comply with the Agreed -Upon Plans and Specifications. A failure of the
District to respond within said thirty (30) day period shall be deemed to constitute an approval of
Developer's request. Subject to Article 9, this process shall be repeated until the District is
satisfied, in its reasonable discretion, that the subject Facilities comply with the Agreed -Upon
Plans and Specifications. Upon the District's approval of a request for partial release, the District
shall, within five (5) days thereof, release to Developer the amount of security posted for the
subject Facilities. Upon the District's receipt of Certifications of Completion for and acceptance
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of all the Facilities required as part of a finally platted phase of the subject project, the LOC shall
be released to Developer.
(b) Facilities Escrowed Funds. If Developer deposits Facilities
Escrowed Funds with the Escrow Agent, the Facilities Escrowed Funds shall be held in a
separate account in the name of the Escrow Agent, for the benefit of Developer and the District.
Any interest earned on the Facilities Escrowed Funds shall be part of the same. Developer and
the District agree to require the Escrow Agent to disburse the Facilities Escrowed Funds in
accordance with the terms set forth in this Agreement. The Facilities Escrowed Funds shall be
made available to Developer to pay for the construction of the Facilities after submission to the
Escrow Agent, with simultaneous copies to the District, of invoices for work performed and
materials supplied ("Facilities Draw Request"). Prior to the release of such funds, the District
may inspect the work performed as identified in the subject invoices to determine whether such
work complies with the Agreed -Upon Plans and Specifications; provided, however, that within
thirty (30) days of the District's receipt of the Facilities Draw Request, the District shall either
approve the request or deny the request with written detail as to any aspect of the subject work
that the District reasonably determines does not comply with the Agreed -Upon Plans and
Specifications. A failure of the District to respond within said thirty (30) day period shall be
deemed to constitute an approval of Developer's request. Subject to Article 9, this process shall
be repeated until the District is satisfied, in its reasonable discretion, that the subject work
complies with the Agreed -Upon Plans and Specifications. The Escrow Agent shall be required
to disburse to Developer the amount set forth in a Facilities Draw Request no later than three (3)
business days following Escrow Agent's receipt of the District's written approval thereof. Upon
completion of construction of all the Facilities required for a given phase of the subject project,
the Escrow Agent shall be required to disburse any remaining Facilities Escrowed Funds to
Developer.
(c) District Cure Rights. Under either alternative (a) or (b) described
in this Paragraph 5.3.2, if Developer fails to perform any obligation or condition to be performed
by Developer under this Agreement with regard to the Facilities for which an LOC or Facilities
Escrowed Funds has been provided, and such default remains uncured for more than forty-five
(45) days after Developer's receipt of written notice thereof from the District, the District may
cure the default and draw on the LOC or Facilities Escrowed Funds to pay the costs incurred in
connection therewith. Notwithstanding the foregoing, if the steps needed to cure a default are
such that the same cannot be reasonably completed within said forty-five (45) day period, then
Developer shall undertake such cure within said forty-five (45) day period and shall diligently
prosecute the same to completion; if Developer fails, in the District's reasonable discretion, to
diligently prosecute such cure, the District may cure the default and draw on the LOC or
Facilities Escrowed Funds to pay the costs incurred in connection therewith.
5.4 Change Orders. To facilitate completion of the Facilities in accordance with the
Agreed -Upon Plans and Specifications, the Rules and Regulations, and good engineering
practice, Developer, its contractors and agents, may propose reasonable change orders to the
District for review and approval. Within ten (10) days, or such lesser period as may be required
under the circumstances, of receiving notice and a copy of the proposed change order(s), the
17
District shall either approve the same or propose an alternative(s), which alternative shall not
result in additional cost or unreasonable delay. A failure of the District to respond within said
ten (10) day period shall be deemed to constitute an approval of any requested change order. All
approved change orders, including any change order deemed approved, shall be incorporated into
and become part of the Agreed -Upon Plans and Specifications.
5.5 Inspections and Certification of Completion. The District shall have the right to
inspect the Facilities at reasonable times prior to the completion of construction and prior to
dedication of such Facilities to the District to ensure compliance with the Agreed -Upon Plans
and Specifications. Developer shall reimburse the District for the reasonable actual costs of such
inspections pursuant to the District's Rules and Regulations. Upon completion of either, a
distinct Facility or an appropriate phase of Facilities, which may mean something less than all
Facilities required within a finally platted phase, Developer shall provide "as built" plans to the
District and certify to the District that Developer has completed construction of the applicable
Facilities in accordance with the Agreed -Upon Plans and Specifications ("Certification of
Completion"). The "as built" plans shall be reviewed and approved by the District Engineer,
which approval may not be unreasonably delayed, conditioned, or withheld. The as -built plans
shall be prepared in accordance with the following general requirements:
5.5.1 A certified field survey shall be included showing the location of the
Facilities pursuant to the District's Rules and Regulations then in effect.
5.5.2 All benchmarks used within the CI Property and GCCI Property, as
applicable, to determine depth of lines or other facilities shall be shown on the drawings and
shall be based upon U.S G S datum and the requirements of the District's Rules and Regulations
then in effect.
5.5.3 Manufacturer's literature and product data, including catalog sheets and
descriptive literature for all materials and equipment used, shall be provided with the as -built
plans.
5.6 Dedication of Facilities; Lien Waivers. Following inclusion of its property into
the District and after providing to the District a Certification of Completion, Developer shall
dedicate to the District the Facilities certified as complete by the subject Certification of
Completion. The District shall accept such dedication on or before thirty (30) days thereof
whereupon title to the dedicated Facilities shall be vested in the District. Developer shall also
execute a quitclaim deed and bill of sale to the District conveying any interests it has in such
Facilities, and shall provide to the District lien waivers from all contractors, subcontractors, and
material suppliers for work and materials furnished in connection with the Facilities conveyed.
5.7 Warranty. Developer shall warrant all Facilities conveyed to the District for a
period of two (2) years from the date such Facilities are conveyed to the District. Specifically,
Developer shall warrant that any and all Facilities conveyed to the District shall be free of any
defects in materials or workmanship for said two-year period.
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5.8 Conveyance of Easements/Plat Dedications. In addition to Developer's
obligations set forth in Paragraph 2.5 and Paragraph 4.5, Developer shall convey to the District,
by plat dedication or easement agreement in a form and substance reasonably acceptable to the
District, the following described perpetual, nonexclusive easements to allow the District to
construct, operate, repair, and replace the Facilities, free and clear of all liens, encumbrances, and
title defects which could defeat the District's title, and any title defects which would affect the
District's ability to use each easement for its intended purpose.
5.8.1 Developer shall convey to the District by plat dedication, on a plat by plat
basis, perpetual non-exclusive easements or rights-of-way extending over and across all those
portions of its property containing the Facilities and that are necessary for the District to provide
water and sewer service to Developer's property.
5.8.2 The First Developer shall assign to the District all of its right, title and
interest in and to the water tank easement agreement described in Paragraph 2.1.4 concurrently
with the recording of the 1st Final Plat for the First Property, subject to the Second Developer's
retained rights described in Paragraph 2.1.4(b).
5.8.3 Developer shall convey to the District by plat dedication, on a plat by plat
basis, perpetual non-exclusive easements or rights-of-way over and across the Developer's
property for purposes of providing water and sanitary sewer service utilities to lands located
adjacent to and outside of its property but within the District service area as reasonable and
appropriate, provided that such easements and rights-of-way may be shown as temporary if there
is no immediate intent to plat the lands intended to benefit from such easements or rights-of-way.
Developer shall have the right to establish and relocate said easements and rights-of-way in a
manner that coordinates with the development of and does not unreasonably restrict the use of its
property. These water and sewer utilities shall be planned to follow proposed road rights-of-way
whenever possible. Without limiting the generality of the foregoing, CI shall convey or cause
GCCI to convey to the District, pursuant to the authority granted to CI by separate agreement
between CI and GCCI, perpetual non-exclusive easements over and across that certain Roaring
Fork Conservancy conservation easement area located within the GCCI Property for purposes of
providing water and sanitary sewer service utilities to lands described in this Paragraph 5.8.3.
Developer shall and hereby does reserve the right to use in common with the District any
easements and rights-of-way it conveys to the District pursuant to this Paragraph 5.8, provided
such use does not interfere with the District's use, maintenance and operation of the Facilities.
All easements and rights-of-way to be established pursuant to this Paragraph shall be subject to
the obligation of the District to repair and revegetate disturbed areas to a condition and grade
substantially similar to that which existed before the disturbance. Developer's obligation to
convey the easements and rights-of-way hereinabove described fully satisfies and discharges
Developer from any and all future obligation(s) to extend its facilities for the purpose of
facilitating or allowing the extension of District water or sewer service to properties situate
adjacent to or outside the boundaries of Developer's property.
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5.9 Control of Facilities. Once conveyed to the District, and subject to the warranty
provisions contained within Paragraph 5.7 above, the District shall be solely responsible for the
operation, maintenance, repair, and replacement of the Facilities, the WWTP, including all
expansions thereto, and the easements on the CI Property and GCCI Property that are dedicated
to the District. The District shall at all times operate the foregoing facilities and easements in a
commercially reasonable and economical manner, and shall make all repairs and replacements
necessary to assure continuous operation of the same so as to provide a reliable and continuous
level of service.
ARTICLE 6
REIMBURSEMENT OF CI COSTS FROM OUTSIDE PARTIES
6.1 Reimbursement for Oversizing of Facilities. Developer and the District
acknowledge and agree that certain Facilities will be oversized for the sole purpose of providing
excess system capacity to allow the extension of District water and sanitary sewer service from
Developer's property to owners of properties or customers with properties within the District but
outside the Developer's property, and properties outside the District to which out -of -district
water and wastewater treatment service may be extended (each an "Outside Party"). To allow
Developer to recover the cost for such oversizing of the Facilities, Developer and the District
agree as follows:
6.1.1 Developer shall oversize the water and sewer mains and lift stations
identified as First Developer Off -Site Water Facilities, First Developer Off -Site Sewer Facilities,
Second Developer Off -Site Water Facilities, and Second Developer Off -Site Sewer Facilities to
accommodate the Regional EQR Projections set forth on the attached Exhibit L; provided,
however, that any oversizing, including the costs attributable thereto, beyond what is necessary
to accommodate the projections set forth in Exhibit L shall be the obligation of the District.
6.1.2 Developer shall certify to the District its total reasonable costs for such
oversizing which amount shall be reviewed and approved by the District ("Oversizing Costs").
6.1.3 Prior to connection of any Outside Party to the Facilities constructed by
Developer, the District shall collect from the Outside Party a pro rata fee ("Oversizing Fee")
calculated as provided below for reimbursement to Developer:
A • B = C; where:
A = Total amount of District water and sewer service requested by
the Outside Party, expressed as a percentage of the total excess
system capacity provided by the oversized Facilities;
B = Oversizing Costs for the service requested; and
C = Oversizing Fee
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The District shall promptly pay to Developer any and all Oversizing Fees
collected by the District from Outside Parties.
6.1.4 The District's collection and reimbursement obligations under this Article
6 shall continue for a period of fifteen (15) years following the date of acceptance by the District
of the applicable oversized Facilities, at which time such obligation shall terminate.
6.2 Reservation of Capacity for the Second Property. The Second Developer shall be
subject to and responsible for paying to the District the Oversizing Fees described in this Article
6. However, the District shall be required to reserve excess capacity in any oversized Facilities
for the Second Property in an amount equal to the capacity required to service 375 EQRs for the
Second Property. Notwithstanding the foregoing, if, at the time of recordation of the preliminary
plat for the Second Property, the actual amount of EQRs required to service the Second Property
is less than 375 EQRs, the amount of excess capacity required to be reserved for the Second
Property may be adjusted accordingly.
ARTICLE 7
DISTRICT SERVICE CONDITIONS
7.1 District Service Conditions. The District's obligations to provide domestic water
service and sewer service to the CI Property and GCCI Property, as applicable, shall be expressly
conditioned upon the satisfaction of the following conditions:
7.1.1 The property shall be included within the District pursuant to the
provisions of Article 1 hereinabove.
7.1.2 CI shall convey all required water rights to the District as provided under
Article 3 hereinabove.
7.1.3 CI and GCCI, as applicable, shall complete construction of the Facilities
required for their respective projects in accordance with this Agreement and shall make all
conveyances and plat dedications necessary for any lot or other portion of their respective
properties requesting District domestic water or sewer service to connect to the existing District
facilities as provided under Paragraph 5.8.
ARTICLE 8
IRRIGATION WATER
8.1 Irrigation Water. It is the intent of the parties hereto that outside landscape
irrigation for the majority of lots within CI Property or GCCI Property shall be provided through
a raw water delivery system to be constructed by CI and/or GCCI and operated by an entity other
than the District. However, the parties also recognize that there may be limited outdoor irrigation
uses made from the District's potable system. To limit the use of potable water from the
District's system, CI and GCCI shall through restrictive covenants on the CI Property and GCCI
Property limit the use of the District's potable domestic water system within such properties for
outside Landscape irrigation to no more than five -hundred (500) square feet for each individual
21
single family lot, and a total of not more than seven (7) acres within the Entire Property. CI
and/or GCCI will provide the District with copies of the non -potable irrigation system plans
provided to the County as part of each final plat application.
8.2 Irrigation Restriction Runs with the Land. The above-described water use
limitations and restrictions shall constitute a burden running with the applicable portions of the
CI Property and GCCI Property and shall be deemed to benefit and run with the properties held
by the District, shall be binding upon the owners thereof, their successors and assigns, and shall
not be transferred separate or apart therefrom. CI and GCCI shall include a plat note on any final
plat to be submitted to the Board of County Commissioners, Garfield County, that contains a
limitation on the use of treated water for irrigation purposes consistent with the terms of this
Article 8 and provides that the District has the right to seek enforcement of this condition.
8.3 Allocation Between CI and GCCI. CI and GCCI acknowledge that the limitations
of this Article 8 apply to and limit potable water irrigation on the CI Property and GCCI
Property, and CI and GCCI shall, in a separate agreement to be provided to the District, allocate
the allowable seven (7) acres of potable water irrigation between their respective properties.
ARTICLE 9
DISPUTE RESOLUTION
In the event CI or GCCI, as applicable, and the District are unable to agree upon any
engineering or technical matter addressed within this Agreement, including but not limited to,
facility design, infrastructure location or layout, and supply or demand calculations, CI or GCCI,
as applicable, and the District each shall select a representative qualified with regard to the
engineering or technical matter in dispute (the "Disputed Matter") to represent its interests. The
selected representatives shall then appoint a third representative qualified with regard to the
Disputed Matter, who shall provide a determination upon the Disputed Matter. In the event this
process of dispute resolution fails, CI or GCCI, as applicable, and the District agree to resolve
such dispute by arbitration in accordance with the rules and regulations of the American
Arbitration Association then in effect. The determination of the arbitrator shall be final and
conclusive and judgment may be entered upon such determination in accordance with applicable
law in any court having jurisdiction thereof.
ARTICLE 10
COMPLIANCE WITH RULES AND REGULATIONS
Upon inclusion of the CI Property and GCCI Property within the District and subject only
to the terms and provisions of this Agreement, CI and GCCI, and lot owners or customers within
their respective projects, shall be bound by and comply with the Rules and Regulations
applicable to properties within the District as the same may be amended from time to time;
provided, however, that in the event of conflict between the Rules and Regulations and the terms
of this Agreement, this Agreement shall govern.
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ARTICLE 11
AUDITS, REPORTS AND INSPECTIONS
The District shall maintain the records, accounts, and audits required by statute or which
would be kept under normal business practice, and copies of such records shall be provided to CI
and GCCI upon request. The District shall, upon reasonable prior notice to CI and GCCI, have
the right to inspect the facilities located upon the CI Property and GCCI Property as provided in
the Rules and Regulations, and CI and GCCI shall, upon reasonable prior notice to the District,
have the right to inspect the District's wells, water and wastewater treatment facilities and other
appurtenant facilities.
ARTICLE 12
ORDER OF INCLUSION
12.1 GCCI's Right to Proceed with Inclusion. In the event GCCI is ready to develop
the GCCI Property in advance of CI's development of the CI Property, GCCI may, in accordance
with this Agreement, petition to include the GCCI Property or any portion thereof within the
District and receive credit for up to 375 EQRs of water and sewer service from the District.
GCCI's right to petition for inclusion of the GCCI Property into the District ahead of the CI
Property shall be subject to the prior written consent of CI, which consent may be withheld in
CI's sole discretion, and prior written notice to the District. GCCI's right to include the GCCI
Property into the boundaries of the District in advance of the inclusion of the CI Property also
shall be subject to GCCI's fulfillment of the First Developer's obligations set forth in this
Agreement.
12.2 CI Obligations. In order for the GCCI Property to connect to certain District
facilities, CI will be required to provide easements on, over, under, and through the CI Property
for the construction, installation, and maintenance of certain Facilities.
12.3 CI Rights. In the event CI grants GCCI the right to petition for the inclusion of
the GCCI Property into the District ahead of the CI Property as provided in Paragraph 12.1
above, CI shall be entitled to petition to include the CI Property within the District and receive
credit for up to 375 EQRs of water and sewer service from the District, subject to CI's fulfillment
of the Second Developer's obligations under this Agreement. In addition, CI shall retain the right
to receive from the District the CI Deposit as set forth in Paragraph 1.2 above.
12.4 Status Reports to District. On or before six (6) months after the Effective Date,
and semi-annually thereafter, CI and GCCI each shall provide the District with a written update
regarding the status of its respective project; provided, however, that the failure to provide such
written update shall not be deemed a breach of this Agreement nor shall such failure excuse the
District from performance of its obligations under this Agreement.
ARTICLE 13
GENERAL PROVISIONS
23
13.1 Termination. This Agreement shall be in full force and effect until terminated by
mutual agreement by the Parties hereto, or as provided by law.
13.2 Acknowledgement of Termination of River Bend Agreement. The Parties
acknowledge that the River Bend Agreement has been terminated and is no longer of any further
force or effect. CI, GCCI, and the District are released from any liability thereunder.
13.3 Good Faith. The Parties agree to proceed diligently in good faith and to use
commercially reasonable efforts with the implementation of this Agreement.
13.4 Service Plan Integration. This Agreement and its Exhibits is consistent with the
District's Service Plan, as though set forth there verbatim.
13.5 Compliance with State and Federal Law. This Agreement shall not be construed
to be in violation with the laws of the United States or the state of Colorado, nor in any manner
that adversely affects or diminishes the financing capabilities of the District.
13.6 Enforcement: Specific Performance. Subject to Article 9, in the event of any
material failure by any Party hereto to comply with the terms of this Agreement, any other Party
shall have standing to bring suit to enforce compliance herewith. Furthermore, in the event of a
breach of this Agreement, the non -breaching Party(ies) may seek all remedies available at law or
equity, including specific performance.
13.7 Assignment. The entirety of each Party's obligations under this Agreement shall
be assignable to any grantee, purchaser, transferee, or assignee of the Party's interest, and shall
survive any such conveyance, purchase, transfer, or assignment. No Party may assign only a part
or portion of its obligations under this Agreement to any third -party.
13.8 Covenants, Recording. The provisions of this Agreement shall constitute
covenants running with the lands affected thereby, and upon its execution by the Parties, this
Agreement shall be recorded in the records of the Garfield County Clerk and Recorder.
13.9 Attorneys' Fees. CI and GCCI shall bear reasonable attorneys' fees incurred by
the District in the negotiation, execution, and implementation of this Agreement. However, in the
event arbitration or litigation is necessary to enforce the rights of the Parties to this Agreement,
as between themselves, the prevailing party(ies) in such arbitration or litigation shall be entitled
to reasonable attorneys' fees and costs of suit actually incurred.
13.10 Complete Agreement; Amendment. This Agreement constitutes the entire and
complete agreement between the Parties, and any modification or amendment hereto shall be
evidenced by a writing signed by the Parties; provided, however, that CI and GCCI shall, in a
separate agreement, allocate between themselves certain costs and obligations incurred pursuant
to this Agreement.
13.11 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the Parties, their successors, grantees, and assigns. Nothing herein shall prevent CI or GCCI
24
from selling, transferring or encumbering their respective properties and the benefits of this
Agreement shall be appurtenant to the property conveyed.
13.12 Authority. Each person executing this Agreement represents and warrants that he
has been duly authorized by the Party which he purports to represent to execute this Agreement,
and has authority to bind said Party to the terms and conditions of this Agreement.
13.13 Governing Law. This Agreement shall be construed under the laws of the State of
Colorado.
13.14 No Waiver. No provision of this Agreement may be waived except by an
agreement in writing signed by the waiving Party. A waiver of any term or provision shall not
be construed as a waiver of any other term or provision.
13.15 Headings. The paragraph headings in this Agreement shall not be used in the
construction or interpretation hereof, as they have no substantive effect, and are for convenience
only.
13.16 Severability. If any part or section of this Agreement shall be found void or
invalid by a court of competent jurisdiction, such finding shall not affect any remaining part or
section, and said remaining parts or sections shall continue in full force and effect. The Parties
shall renegotiate in good faith any matter addressed by a part or section that is found void or
invalid.
13.17 Notices. All notices required under this Agreement shall be in writing and shall
be delivered by facsimile, hand delivered, or sent by registered or certified mail, return receipt
requested, postage prepaid, to the addresses of the Parties herein set forth. Notices shall be
considered effective three (3) days after deposit postage paid in the United States Mail with the
proper address as set forth below. Either Party by notice so given may change the address to
which future notices shall be sent.
Notice to:
With copy to:
Roaring Fork Water & Sanitation District
P.O. Box 1002
Glenwood Springs, CO 81602
Fax:
Lawrence R. Green
Balcomb & Green P.C.
P.O. Drawer 790
Glenwood Springs, CO 81602-0790
Fax:
and:
Scott Grosscup
25
Notice to:
With copy to:
Notice to:
Balcomb & Green P.C.
P.O. Drawer 790
Glenwood Springs, CO 81602-0790
Fax:
Carbondale Investments, LLC
5121 Park Lane
Dallas, Texas 75220
and
do Rockwood Shepard
Carbondale Investments LLC
Mountain Valley Colorado Project
7999 Hwy 82
Carbondale, CO 81623
Fax: (979) 945-2113
Wayne F. Forman, Esq.
Brownstein Hyatt Farber Sehreck, LLP
410 17th Street, Suite 2200
Denver, CO 80202
Fax: (303) 223-0920
Garfield County Commercial Invesl<uents, LLC
Attn: Ted Sikora
Davis, Graham & Stubbs, LLP
1550 17th Street, Suite 500
Denver, CO 80202
(303) 892-7324
(303) 893-1379 Fax
[signature pages follow]
26
IN WITNESS WHEREOF, the Parties have executed this Agreement in multiple
originals on the dates herein below set forth.
CARBONDALE INVESTMENTS, LLC
By:
Rockwood Shepard
Its: Project Executive
GARFIELD COUNTY COMMERCIAL
INVESTMENTS, LLC
By:
Name: RockWJod V G�eParj
Its: OwAev {eetesPu"f'a 3'tlre
ROARING FORK WATER & SANITATION
DISTRICT
By:
ATTEST:
27
President
STATE OF COLORADO
COUNTY OF GARFIELD
)
)
)
The foregoing ROARING FORK WATER AND SANITATION DISTRICT
CARBONDALFziNVESTMWSy -C PRE -INCLUSION AGREEMENT was acknowledged
before me this/6 day of J ✓ 2011, by Rockwood Shepard as authorized
signatory for Carbondale Investments, LLC, a Texas limited liability company.
Witness my hand and official seal.
ary Public
My commission expires: 2 /e. �20
STATE OF Cbioraz,b )
/�
)
COUNTY OF g' a,r )
Evading Brian
NOTARY PUBLIC
STATE OF COLORADO
My commission expires 0208-15
The foregoing ROARING FORK WATER AND SANITATION DISTRICT
CARBONDALE INVESTMENTS, LLC PRE -INCLUSION AGREEMENT was acknowledged
before me this Kia day of 2014; by 1Roe 1 W6pdl lr tpctrc( as
authorized signatory for Garfield ounty Commercial Investments, LLC, a Texas limited
liability company.
Witness my hand and official seal.
Notary Public
all III II I /MU
My commission expires: t�JT IIdnSP. NOTq?h:. =
1SA p
.UBIIC/0
�ccCOLO�PyOw��'p\\
b/w://n Expires 030
28
STATE OF COLORADO )
COUNTY OF GARFIELD )
The foregoing ROARING FORK WATER AND SANITATION DISTRICT
CARBONDALE INVESTMENTS, LLC PRE-INCLUSICp AGREEMENT was acknowledged
before me this f day of OC* , 2011, by katje-Leu, as
President andKock_ Lectia4 as Secretary for the Roaring Fork Water and
Sanitation District, a Colorado special district.
Witness my hand and official seal.
fyvtary Public
My commission expires: 67/i /n
13738\3\1420109.23
29
JOHANNA L FETZKO
NOTARY PUBLIC
STATE OF COLORADO
EXHIBIT A
CI Property Legal Description
Exhibit A