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HomeMy WebLinkAbout1.13 Exhibit CEXHIBIT C SrcwBn Tap ASSIcNMENT AcnnBMENT THIS AGREEMENT is made and entered into this _ day of June, 2006, by and between ELK SPRINGS, LLC, a Colorado limited liability company (the "Company") and JOHN A. ELMORE, II and/or Assigns (the "Purchaser"). Rrcrrnr,s A. On event date herewith, Purchaser and Elk Mesa Properties, LLC, an affrliate of Company, have entered into a Contract to Buy and Sell Real Estate (the "Contract") whereby Elk Mesa Properties has agreed to sell and Purchaser has agreed to buy the real property described on Exhibit A attached hereto and incorporated herein Qy this reference (the "Subject Property"). B. The Company owns certain sewer tap rights and all rights and obligations related thereto (collectively, the "Sewer Taps"), including the right to make connection to the facilities of, and to receive service from, the Spring Valley Sanitation District (the "District"), as a "Funding Landowner" in the "Pre-Inclusion and Wastewater Treatment Plant Development Agreement" dated February 28, 2000 and all amendments thereto (the "Plant Development Agreement"). C. Company desires to transfer and assign to Purchaser, and Purchaser desires to purchase and acquire, 80 of said Sewer Taps in accordance with the Plant Development Agreement which strictly limits the manner in which Funding Landowner taps can be sold and the properties to which they can be transferred. NOW, THEREFORE, for and in consideration of the keeping and performance of the mutual terms, covenants, and conditions contained herein, the parties agree as follows: 1. Assiqnment and Assumption. Subject to the closing of the Contract, and to performance of all of the terms and conditions of this Agreement, Company shall sell, assign and transfer, and Purchaser shall purchase, acquire and assume, 80 Sewer Taps for use upon the Subject Property, upon the terms and conditions set forth in this Agreement. 2. Purchase Price and Payment. Purchaser hereby promises to pay to Company the sum of Two Hundred Fifteen Thousand Six Hundred and No/100ths Dollars (S215,600.00) (the "Purchase Price") for the 80 Sewer Taps to be assigned hereby. For purposes of the payment terms set forth below, it is agreed that each of said Sewer Taps has a value of $2,695.00. The Purchase Price shall be paid as follows: a. On or before May 31,2007, Purchaser shall pay to Company the sum of $72,765.00. Upon such payment, Company shall execute and deliver to Purchaser an assignment of 27 Sewer Taps in the form of Exhibit B attached hereto and incorporated herein by this reference (the "Assignment"). Sewer Tap Assignment Agreement Elk Springs, LLC/John A. Elmore, Il Page I of3 b. On or before May 31, 2008, Purchaser shall pay to Company the sum of $72,765.00. Upon such payment, Company shall execute and deliver to Purchaser an Assignment of an additional 27 Sewer Taps. c. On or before May 31, 2009, Purchaser shall pay the remaining balance of the Purchase Price in the amount of $70,070.00, or such lesser amount as may then be due as the result of any accelerated payments made pursuant to the provisions of the following paragraph. Upon such payment, Company shall execute and deliver to Purchaser an Assignment of the appropriate number of Sewer Taps paid for on such date. 3. No Rieht to Connect or Make Use of a Sewer Tap Without Payment: Accelerated Payment. Notwithstanding anything in this Agreement to the contrary, Purchaser agrees that he shall not be entitled to connect any improvement constructed upon the Subject Property to the wastewater treatment system of the Spring Valley Sanitation District without first paying for a Sewer Tap as required by this Agreement. For example, if Purchaser desires to connect an improvement to the Spring Valley Sanitation District system prior to May 31, 2007, he shall be required to pay to Company the amount of $2,695.00 for each of such Sewer Taps to be connected. Upon such payment, Company shall deliver an Assignment for the number of Sewer Taps paid for. Similarly, if Purchaser desires to connect a28'h or greater number of Sewer Taps after May 31,2007, but before May 31, 2008, Purchaser shall pay to Company the amount of 52,695.00 for each of such Sewer Taps in excess of 27 to be connected during the period between June 1, 2007 and May 31, 2008. Upon such payment, Company shall deliver an Assignment for the number of Sewer Taps paid for. Any payment made to make accelerated connections as provided in this paragraph shall not be applied to reduce the payments otherwise due on May 31 , 2007 and May 31, 2008, but rather shall be applied to reduce the final payment due on May 31, 2009. 4. Effective Date of Assienment. The effective date of the Assignment of any Sewer Tap made pursuant to this Agreement shall be the date of payment and delivery of an Assignment for such tap. Prior to the effective date of any Assignment, Company shall be responsible for the performance of all obligations of a Funding Landowner associated with all of such Sewer Taps as contained in the Plant Development Agreement and the District's Rules and Regulations. Company hereby warrants that upon the Effective Date of each Assignment the number of Sewer Taps so assigned shall be transferred free and clear of any liens or encumbrances, and that Purchaser or his assigns shall be entitled to make one Sewer Tap connection for each Sewer Tap assigned without obligation to pay to the District any further or additional sewer tap fees, system development fees or similar type fees. Upon payment for and delivery of an Assignment for any number of Sewer Taps, Purchaser shall assume and immediately be responsible for the performance of all obligations contained in the Plant Development Agreement and the District's Rules and Regulations for the number of Sewer Taps assigned. 5. Limitations on Use of Sewer Taps. Purchaser hereby acknowledges and agrees that all Sewer Taps purchased hereunder can be utilized only to provide sewer service to improvements to be constructed upon the Subject Property, and that such Sewer Taps cannot be further assigned to provide service to any other property. Furthernore, Purchaser acknowledges and agrees that all Sewer Taps assigned hereby, and the rights to connect to the Spring Valley Sanitation District's wastewater treatment system to receive sewer service from said District, Sewer Tap Assignment Agreement Elk Springs, LLC/John A. Elmore, II Page 2 of 3 shall be subject in all respects to the provisions of the Plant Development Agreement and the District's Rules and Regulations. 6. Promise to Purchase 80 Sewer Taps. This Agreement is a promise by Purchaser to purchase and acquire all 80 Sewer Taps and to pay the sum of $215,600.00 in consideration therefor. In the event that Purchaser shall default in any of the terms and conditions of payment set forth in paragraphs 2 and 3 hereof the entire unpaid balance of the Purchase Price shall become immediately due and payable, said unpaid balance shall accrue interest at the rate of twelve percent (12%) per annum from the date of default until paid, and Purchaser shall become responsible for performance of all obligations under the Plant Development Agreement and the District's Rules and Regulations for any Sewer Taps not previously paid for and assigned, together with interest on any such obligations at the rate of twelve percent (12%) per annum from the date of default until paid. 7. Personal Oblieation of Purchaser. All obligations of Purchaser under this Agreement shall be the personal obligations of John A. Elmore, II, and he hereby unconditionally promises to pay and perform all of the obligations of Purchaser set forth herein, subject to performance by Company of its obligations hereunder, and notwithstanding any assignment of this Agreement by Purchaser. No such assignment of this Agreement shall be made without the prior consent of Company, which consent shall not be withheld so long as John A. Elmore, II executes a personal guarantee of any obligations of Purchaser then remaining to be performed under this Agreement. 8. Personal Obligation of Thomas E. Neal. The obligation of Seller to deliver the Assignments of Sewer Taps upon payment as set forth herein is hereby unconditionally guaranteed by Thomas E. Neal. 9. Survival. All of the terms and conditions of this Agreement shall survive the closing of the Contract and the payment for and assignment of any Sewer Taps in accordance with the schedule set forth herein. All provisions of this Agreement shall be binding upon the parties hereto, their heirs, successors and assigns, until complete performance of all of the terms and conditions of this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first set forth above. ELK SPRINGS, LLC, a Colorado limited liability company By Thomas E. Neal, Manager John A. Elmore, II Thomas E. Neal, as to the guarantee set forth in paragraph 8 Sewer Tap Assignment Agreement Elk Springs, LLC/John A. Elmore, II Page 3 of 3