HomeMy WebLinkAbout1.01 Supplemental InfoHOLLAND & HART LLP
ATTORNEYS AT LAW
DENVER • ASPEN
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DENVER TECH CENTER
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CHEYENNE • JACKSON HOLE
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WASHINGTON, D.C.
Don Deford, Esq.
Garfield County Attorney
109 8th Street
Glenwood Springs, CO 81601
600 EAST MAIN STREET, SUITE 104
ASPEN, COLORADO 81 61 1-1 991
August 15, 2001
RECEIVED AUG 1 ? 20Q1
TELEPHONE (970) 925-3476
FACSIMILE (970) 925-9367
Arthur B. Ferguson, Jr.
(800) 840-9360 Fax
aferguson@hollandhart.com
Mark Bean
Director of Planning for Garfield
County
109 8th Street
Glenwood Springs, CO 81601
Re: Landis Creek Metropolitan Districts No. 1 and No. 2
Dear Gentlemen:
I have enclosed a revised Service Plan for the referenced districts that
satisfies the conditions of the approval of the Board of County Commissioners.
For your convenience, I have enclosed a redlined version that highlights the
changes. I spoke with Lee Leavenworth regarding a couple of minor word
changes to the provisions in his letter to insure consistency within the
document. Cam will be forwarding the exhibits separately.
I have also enclosed a revised Intergovernmental Agreement that
contains the changes that I mentioned in Paragraph 4. The change was
necessitated by the addition of the restriction on the mill levy for the payment
of debt service in Paragraph I.B. of the Service Plan. We did not want the
restrictions on the payments for debt service to be confused with the
designation of the Financial District's obligations to the Service District as a
"debt." Accordingly, the changed language is for clarification purposes. I have
enclosed a redlined copy for your convenience of this document.
Please do not hesitate to call if you have any questions or additional
comments. We appreciate your assistance in the processing of this matter.
Si
erely,
Arthur B. Fergus6n, Jr.
of Holland & Hai LL
HOLLAND & HART LLP
ATTORNEYS AT LAW
Don Deford, Esq.
August 15, 2001
Page 2
ABF
Cc: Loyal E. Leavenworth, Esq. (w.encl.)
cc: Cam Kicklighter
RECEIVED AUG 1 7 2001
LOYAL E. LEAVENWORTH
SANDER N. KARP
DAVID H. McCONAUGHY
JAMES S. NEU
JULIE C. BERQUIST-HEATH
SUSAN W. LAATSCH
NICOLE D. GARRIMONE
ANNA S. ITENBERG
MICHAEL J. SAWYER
TERESA L. HOCK
EDWARD B. OLSZEWSKI
LEAVENWORTH & KARP, P.C.
ATTORNEYS AT LAW
1011 GRAND AVENUE
P. 0. DRAWER 2030
GLENWOOD SPRINGS, COLORADO 81602
Telephone: (970) 945-2261
Facsimile: (970) 945-7336
jsn@LKLawfirm.com
Don DeFord, Esq.
Garfield County Attorney's Office
108 Eighth Street, Suite 219
Glenwood Springs, CO 81601
March 4, 2004
Re: Spring Valley Sanitation District
Dear Don:
DENVER OFFICE:*
WAZEE EXCHANGE BUILDING
1900 WAZEE STREET, STE. 203
DENVER, COLORADO 80202
Telephone: (303) 825-3995
Facsimile: (303) 825-3997
*(Please direct all correspondence
to our Glenwood Springs Office)
In August 2002 and March 2003, we forwarded to you a draft Intergovernmental
Agreement between Spring Valley Sanitation District (the "District") and Garfield County. As
you know, the District has completed its wastewater treatment plant expansion and landowners
within the District are proceeding with their development plans. In anticipation for increased
construction within the District, all of which will be handled by the Garfield County Building
Department, the District's Board of Directors would like to institute a system with Garfield
County to coordinate the issuance of building permits with the payment of tap fees to the District
and to avoid redundant performance guarantees securing public improvements.
The Intergovernmental Agreement previously forwarded to you would effectuate the
above-mentioned goals. Because you have not responded to my last two correspondences, I am
again enclosing it for your review and requesting that it be presented to the Board of County
Commissioners for consideration. The Board of Directors of the District would like to implement
a system with the County prior to the commencement of construction of the approved subdivisions
in the District.
Under the District's Rules and Regulations, the District will issue a lot owner a Tap Permit
upon payment of the required tap fee. The IGA requests the County to require a building permit
applicant to provide the Tap Permit (or evidence of an exemption) prior to the issuance of the
building permit to ensure the District is receiving the tap fee. The IGA also requests that the
County provide the District notice of the issuance of the building permit so the District can track
construction in the District. The District can provide a form for the Building Department to use
to simplify this process. In the IGA, the District agrees to indemnify and hold the County
harmless for any liability it incurs for any denial of a building permit based on the failure to
provide a Tap Permit. In effect, the District will cover any exposure the County may incur from
building permit applicants as a result of the IGA.
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s
LEAVENWORTH & KARP, P.C.
Page 2
March 4, 2004
The IGA also addresses proposed developments in the District. The County will make the
District a referral agency for all land use applications for developments that the District will serve
so that it can provide comment. The County will also require evidence that a developer has
entered into a line extension agreement with the District regarding the installation of District
improvements prior to the recording of a final plat. Because the County requires developers to
provide security for public improvements, which include sewer improvements, the IGA creates
a system where the District is a third party beneficiary to the County's security so the District is
not forced to require a redundant performance guarantee securing the sewer improvements.
The proposed IGA is an agreement of cooperation between the County and the District to
encourage an organized and centralized approach to the provision of public services to residents
of Garfield County. We do not believe it contains any controversial provisions. The District
waives any claim or cause of action against the County for any noncompliance of the IGA, and
the IGA can be terminated within 30 days notice by either party. We believe the provisions of
the IGA will assist with orderly and efficient development in the District over which the County
and District share jurisdiction. With development in the District in its infancy, we believe now
is the time to implement such provisions. If you prefer that we coordinate with Mark Bean to get
this before the County Commissioners, please let us know and we will discuss it with him.
We would be happy to meet with you to discuss this proposed IGA if you have any
questions, comments or concerns. We look forward to hearing from you.
Very truly yours,
LEAVENWORTH & KARP, P.C.
mes S. Neu
JSN:
Enclosure
cc: Board of Directors (w/o enc.)
Mark Bean (w/ enc.)
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INTERGOVERNMENTAL AGREEMENT
THIS AGREEMENT is made and entered into this day of , 2004,
by and between the BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF
GARFIELD, COLORADO (hereinafter "County"), and the SPRING VALLEY SANITATION
DISTRICT, a Colorado Special District (hereinafter "District");
WITNESSETH:
WHEREAS, the County is a political subdivision of the State of Colorado with
jurisdiction over and responsibility for zoning and land use matters in the unincorporated areas
of Garfield County, Colorado; and
WHEREAS, the District is a Colorado special district formed and functioning by the
authority of C.R.S. §32-1-101 et seq., providing sanitary sewer service in the area known as
Spring Valley near Glenwood Springs, Colorado, in unincorporated Garfield County; and
WHEREAS, pursuant to the authority in C.R.S. §32-1-1001(1)(m), the District adopted
a regulation which requires District customers to pay sewer tap fees to the District prior to
obtaining a building permit from the County, and prior to any physical connection to the
District's sewer system; and
WHEREAS, the County desires to facilitate the administration of tap fee collection by
the District, to ensure the adequate provision of sewer services to the citizens of Garfield
County; and
WHEREAS, an objective of the County's land use regulations is to encourage an
organized and centralized approach to the provision of public services for residents and visitors
of Garfield County; and
WHEREAS, the County is willing to require, subject to the terms and conditions set forth
below, that development projects located within the common boundaries of the County and the
District comply with the Rules and Regulations of the District, prior to the County issuing
building permits and certificates of occupancy or releasing performance guarantees of
subdivision improvements agreements; and
WHEREAS, pursuant to Article XIV, Section 18 of the Colorado Constitution and Part
2 of Article I of Title 29 of the Colorado Revised Statutes, local governments are encouraged
and authorized to cooperate or contract with other units of government for the purpose of
planning or regulating the development of land, including but not limited to, the joint exercise
of planning, zoning, subdivision, building and related regulations.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
contained herein, the County and the District agree as follows:
1. Mutual Goals. The parties acknowledge that the purpose of this Agreement is to
promote the efficient and well -ordered provision of sewer services to the citizens of Garfield
County. The parties further recognize that the objectives of this Agreement can only be
achieved through the joint and cooperative efforts of the parties.
2. District Tap Permit/Exemption. Pursuant to the District's Rules and Regulations,
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the District shall issue a Tap Permit to a customer applying for District sewer service upon full
payment of the applicable sewer tap fees for the property. In the event that tap fees for the
property have previously been paid or the property is otherwise exempt from the payment of tap
fees, the District shall issue an exemption form to evidence compliance with District Rules and
Regulations.
3. County Issuance of Building Permits. Effective upon the execution of this
Agreement, the County shall, prior to the issuance of any building permit for property located
within District boundaries or for which District sewer service is sought, require that the property
owner provide a Tap Permit or exemption form from the District. The County shall also inform
the District of the issuance of such building permits within the District or for which District
sewer service is sought so that the District has notice of the pending connection to its sewer
system.
4. District Indemnification/Hold Harmless. The District agrees that a Tap Permit
shall not be unreasonably denied to any property owner that is in compliance with the District's
Rules and Regulations. The District further agrees to indemnify and hold the County harmless
against any and all claims and losses (including attorneys' fees, damages, costs and expenses
incurred) based on the denial by the County of a building permit application due to the failure
of the applicant to present a Tap Permit or exemption form issued by the District. The District
agrees to have a representative present at any hearing before the Board of County
Commissioners or the County staff at which the denial of a building permit based on lack of a
Tap Permit or exemption form is being heard, so long as the District has had forty-eight (48)
hours notice of the hearing.
5. County Land Use Approval Procedures. In order to ensure that all development
projects located within the common boundaries of the County and the District that will require
new, additional or modified sewer service from the District, are constructed and installed in
accordance with the land use regulations, policies and practices of the County and/or the
District, the County and the District acknowledge and agree to the following:
a. District As Referral Agency. The County agrees that it shall include the District
as a referral agency on all land use applications submitted to the County for uses
within the common boundaries of both the County and the District that will
require new, additional or modified sewer services from the District, for the
purpose of allowing the District to provide comment to the County during the
land use application process.
b. Final Plat Recordation. The County shall not record any final plat for any
development within the common boundaries the County and the District, or which
will use the services of the District, until the County has received written
confirmation from the District that the developer has executed a line extension
agreement or line connection agreement with that District, or has otherwise
applied for and been granted service per the Rules and Regulations of the District.
c. Performance Guarantees: District As Third -Party Beneficiaries. The parties agree
and acknowledge that, in most cases, the County requires a performance
guarantee to be posted by a developer as part of the County' s subdivision or land
use process in order to ensure timely completion of the public improvements
necessary to provide sewer service for the proposed land use. The parties further
agree and acknowledge that in most instances the sewer public improvements
related to development projects within the District or that will use that District's
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services are addressed by a separate agreement with the District and are usually
required to be dedicated to that District by the developer following review and
acceptance by the District pursuant to an applicable line extension agreement, line
connection agreement, and/or other District Rules and Regulations. However,
as it would be duplicative for the District to require a developer to post a
performance guarantee when the developer is required to do so for the same
public improvements pursuant to a subdivision improvements agreement or other
development agreement with the County, the County agrees to make the District
a third -party beneficiary of any and all performance guarantees associated with
the sewer service installation sections of subdivision improvements agreements
for property located within the common boundaries of the County and the District
and that will receive sewer service from that District. In the event the County is
not going to require a performance guarantee, the County shall notify the District
so the District can require, if it chooses, its own performance guarantee. The
County further agrees to cooperate the District in the event of a default under any
such subdivision improvements agreement with the County or the applicable
District agreement regarding sewer improvements by, if necessary, making
available to the District that portion of the performance guarantee related to sewer
facility installation necessary to cure such defaults and complete the installation
to the standards of both the County and the District. The District shall be under
no obligation to provide sewer service until such public improvements are
completed and accepted by the District. For the above -stated purposes, the
County agrees to include the following language, or substantially similar
language, in all subdivision improvements agreements or other development
agreements where the land use in question will rely on sewer service from the
District:
The Developer agrees that it shall enter into an agreement to obtain
sewer service from the Spring Valley Sanitation District (the
"District") and, prior to recording the final plat, shall enter into an
agreement with the District to construct those portions of the
public improvements pursuant to plans and specifications approved
by the District relating to the provision of sewer required to be
constructed under this Subdivision Improvements Agreement (or
Development Agreement) . The Developer further agrees that a
default under any such agreement with the District shall be deemed
a default hereunder and agrees that the County may rely solely on
the written representation from the District that such a default has
occurred. The Subdivider shall hold the County harmless against
any claim or lawsuit based on a dispute regarding the existence of
such a default under the District agreement. The Developer
further agrees that the District is a third -party beneficiary of this
Subdivision Improvements Agreement (or Development
Agreement) and the Developer's performance guarantee to the
extent of any estimated costs of the sewer public improvements and
that the County may make available to the District portions of the
performance guarantee (or rights to and in the same) in sufficient
amounts in the event of default in order to provide for the
completion of the sewer service public improvements required to
be constructed under this Subdivision Improvements Agreement
(or Development Agreement).
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d. Release of Performance Guarantee. As previously acknowledged, the District
must formally approve and/or accept sewer facilities constructed by a developer
prior to the District's obligation to provide sewer service to the project.
Therefore, the County agrees that it shall not release any performance guarantee
or determine that the public improvements under any subdivision improvements
agreement for sewer construction projects within the common boundaries of both
the County the District, or which shall receive sewer service from the District,
have been completed until such time as the County receives written confirmation
from the District that the developer has complied with all of the terms and
conditions of that agreement entered into by and between the developer and that
District and that the developer has completed to that District's satisfaction all
sewer public improvements that are a condition precedent of sewer service to the
land use proposal. The District agrees to perform the necessary inspections and,
when appropriate, to provide the written confirmations in a timely fashion and
within the time limitations, if any, imposed on County for inspecting the public
improvements. The District agrees to hold the County harmless for the County's
failure to require written confirmation by the District that the developer has
complied with all the terms and conditions of agreements between the developer
and the District prior to release of performance guarantees by the County. The
District shall have no obligation to provide sewer service unless it has confirmed
in writing to the County that all of the terms and conditions of agreements
between the developer and the District have been complied with to that District' s
satisfaction.
6. Implementation of Agreement. The County agrees to use its best efforts to
comply with the terms and conditions of this Agreement; provided, however, that in the event
of noncompliance by the County, the District waives any claim or cause of action it may have
for such noncompliance. It is the intent of the parties that they shall attempt to cooperate as
more fully set forth in this Agreement, but the District shall not hold the County responsible for
noncompliance.
7. No Third -Party Beneficiaries. This is an understanding and intergovernmental
agreement between the County and the District, and no third -party rights or beneficiaries exist
or are created hereby.
8. Severability. If any provision of this Agreement shall be determined to be invalid
by a court of competent jurisdiction, such determination shall not affect any other provision
hereof, all of which other provisions shall remain in full force and effect, and such invalid
provision shall be replaced with a valid provision which most closely sets forth the intentions of
the parties.
9. Notice. All notices required under this Agreement shall be in writing and shall
be hand delivered or sent by registered or certified mail, return receipt requested, postage
prepaid, to the addresses of the parties herein set forth. All notices so given shall be considered
effective seventy-two (72) hours after deposit 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.
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Notice to District:
With copy to:
Notice to County:
Spring Valley Sanitation District
P.O. Box 527
Basalt, Colorado 81621
(970) 927-3698 phone / (970) 927-8307 fax
Leavenworth & Karp, P.C.
P. O. Drawer 2030
Glenwood Springs, Colorado 81602
(970) 945-2261 phone / (970) 945-7336 fax
Garfield County Attorney's Office
108 Eighth Street, Suite 219
Glenwood Springs, Colorado 81601
(970) 945-9150 phone / (970) 384-5005 fax
10. Termination. This Agreement
terminated by either party upon thirty (30) days'
party has entered into an agreement with a
performance of the other party as contemplated
Agreement shall survive termination of the Agr
shall remain in full force and effect unless
written notice. In any circumstance where any
developer or subdivider in reliance on the
herein, the performance obligations under this
eement.
11. Review Provisions. The parties acknowledge the importance of a continuing
review of the provisions of this Agreement and the need for a regular dialogue concerning other
potential areas of cooperation. The County and the District agree to consult with each other no
less frequently than once a year to accomplish this review and dialogue.
IN WITNESS WHEREOF, the parties hereto have executed this Intergovernmental
Agreement on the day and year first above written.
ATTEST
Clerk
ATTEST
Secretary
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By
By
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BOARD OF COUNTY COMMISSIONERS
GARFIELD COUNTY, COLORADO
Chairman
SPRING VALLEY SANITATION
DISTRICT, a Colorado Special District
President
AUG -15-01 15=22 FROM : HOLLANDHART ID=9709259415
HOLLAND & HART LLP
ATTORNEYS AT LAW
.106
PARTNERING LAW AND TECENOLOGY TO MEET YOUR NEEDS
600 E. MAN STREET, SUITE 104, ASPEN, CO 81611-1991
To: Don Deford, Esq.
Garfield County
Wednesday, August 15, 2001
Fax : 970-384-5005
Phone:
From: Boots Ferguson Fax : 970-925-9367
Phone: 970-925-3 476
PAGE 1/3
Message:
Don: The original documents for the revised Landis Creek Metropolitan
Districts No. 1 and No. 2 were sent to you today by OSM together with redlined
versions. Review of the changes indicates that one "Spring Valley" on page 2
only changed to "Landis Valley" and not "Landis Creek." Accordingly, I have
attached a corrected page 2 of the Service Plan. I will forward a clean copy by
overnight delivery. Please deliver a copy of the new page 2 to Mark for his
documents. Thank you for your assistance. Boots
Cc: Loyal E_ Leavenworth, Esq.
Cam Kicklighter
® No Confirmation Copy Number of pages including cover sheet:
Note: If this fax is illegible or incomplete please call us. This fax may contain confidential information protected by
the attorney-client privilege. If you are not the named recipient, you may not use, distribute or otherwise disclose this
information without our consent. Instead, please call (970) 925-3476; we will arrange for its destruction or return.
Attorney Number 0341 Client/Matter Number:
Time Deadline:
Operator Initials:
Date Transmitted: Time:
AUG -15-01 15:22 FROM:HOLLANDHART
ID:9709259415
PAGE 2/3
such other public improvements and facilities that may be necessary and appropriate.
Landis Creek Metropolitan District No_ 2 will serve as the Service District and pay for
the operation and maintenance of the public infrastructure through intergovernmental
agreement or agreements ("ICAs") with Landis Creek Metropolitan District No. 1
substantially in the form attached hereto as Exhibit D. This Service Plan addresses the
public improvements that will be provided by the special districts and demonstrates how
these two districts propose to serve the needs of the Project_
1 _ Dual District Structure [permitted under § 32-1-1001 et seq.,
C.R_S_j_ This Service Plan is submitted in accordance with Part 2 of the Special District
Act (§ 32-1-201, et seq., C.R.S.) ("Control Act"). It defines the powers and authorities
of, as well as the limitations and restrictions on, Landis Creek Metropolitan Districts
No. 1 and No. 2_ For put -poses of clarification in this Service Plan, Landis Creek
Metropolitan District No. 2 shall be referred to as "the Service District," and Landis
Creek Metropolitan District No. 1 shall be referred to as the "the Financing District_"
The Service and Financing Districts are sometimes collectively referred to as "the
Districts" and individually as "the District_"
Each District will stand on its own with respect to its statutory
powers and authority under Title 32, Article 1, Part 10, including but not limited to such
general powers as the authority to enter into contracts and agreements affecting the
affairs of the special district, § 32-1-1001(1)(d)(1), C.R.S., the power to borrow money,
incur indebtedness, and issue bonds, § 32-1-1001(1)(e), C.R.S., and the power to furnish
services and facilities outside the special district and to establish fees for such services
2
AUG -15-01 15:23 FROM :HOLLANDHART
ID:9709259415
PAGE 3/3
such other public improvements and facilities that may be necessary and appropriate.
Landis Creek Metropolitan District No. 2 will serve as the Service District and pay for
the operation and maintenance of the public infrastructure through intergovernmental
agreement or agreements ("IGAs") with Landis Creek Metropolitan District No. 1
substantially in the form attached hereto as Exhibit D. This Service Plan addresses the
public improvements that will be provided by the special districts and demonstrates how
these two districts propose to serve the needs of the Project_
1_ Dual District Structure [permitted under § 32-1-1001 et seq.,
C.R_S.J. This Service Plan is submitted in accordance with Part 2 of the Special District
Act (§ 32-1-201, et seq., C.R_S.) ("Control Act"). It defines the powers and authorities
of, as well as the limitations and restrictions on, Landis Creek Metropolitan Districts
No. 1 and No. 2_ For purposes of clarification in this Service Plan, Landis Creek
Metropolitan District No. 2 shall be referred to as "the Service District," and Landis
Creek Metropolitan District No. 1 shall be referred to as the "the Financing District."
The Service and Financing Districts are sometimes collectively referred to as "the
Districts" and individually as "the District"
Each District will stand on its own with respect to its statutory
powers and authority under Title 32, Article 1, Part 10, including but not limited to such
general powers as the authority to enter into contracts and agreements affecting the
affairs of the special district, § 32-1-1001(1)(d)(I), C.R.S., the power to borrow money,
incur indebtedness, and issue bonds, § 32-1-1001(1)(e), C_R_S., and the power to furnish
services and facilities outside the special district and to establish fees for such services
2
AUG -09-01 12:41 From:
Sherman & Howard L.L.C.
ATTORNEYS & COUNSELORS AT LAW
633 SEVENTEENTH STREET, SUITE 3000
DENVER, COLORADO 80202
TELEPHONE, 303_297.2900
PAY: 303 29
OFFICES IN: COLORADO SPRINGS
RENO • LAS VEGAS • PHODEX
August 9, 2001
T-195 P.02/04 Job -760
Board of County Commissioners
Garfield County
109 8th Street, Suite 200
Glenwood Springs, Colorado 81601
Re: Service Plan for proposed Spring Valley Ranch Metropolitan District
Nos. 1 and 2
Ladies and Gentlemen:
We have reviewed the redraft of the Service Plan for the proposed Spring Valley
Ranch Metropolitan District Nos. 1 and 2 (collectively, the "Districts") in light of the comments we
had made earlier, and have been asked to report back to the County with respect to the redraft.
Based upon our review of the redrafted Service Plan (which is characterized as the
June 6, 2001 Modified and Restated Service Plan), it appears that the petitioners have addressed the
issues outlined in our letter to the County dated May 7, 2001.
In particular, the Service Plan provides only for limited mill levy bonds by both
Districts, with a limit of 50 mills. We believe this is the most important change, and the one with
which the County is most concerned. The petitioners appear to have included the exact language
which we recommended in our May 7 letter. In addition, the petitioners appear to have removed
the intent to finance improvements which will not be owned by the Districts directly, which we also
recommended, and have also made the various other minor changes we recommended.
Since we wrote our May 7 letter, another issue has come to our attention which we
submit for your consideration. In the original version of the mill levy limitation language, we
recommended, and the petitioners included, the following language:
The Districts shall not issue or incur any debt, bonds, notes, contracts,
or other obligations for the payment of which the Districts will be
contractually obligated to impose an ad valorem property tax, except
as described in this paragraph. The Districts may contractually
obligate themselves to impose an ad valorem property tax for the
payment of any bonds, notes, contracts, or other obligations
(including without limitation obligations issued or incurred for the
payment of capital costs, operations and maintenance costs, or any
other costs), only in an amount not in excess of (J mills for all
AUG -09-01 12:41 From:
Sherman & Howard L.L.C.
T-195 P.03/04 Job -760
Garfield County, Colorado
August 9, 2001
Page 2
of such obligations; provided however, that in the discretion of the
obligated District, such obligations may provide that, in the event the
mcthod of calculating assessed valuation is changed after the date of
the incurrence or issuance of such obligations, the mill levy
limitation provided herein may be increased or decreased to reflect
such changes, such increases or decreases to be determined annually
by the board of directors of the obligated District in good faith (such
determination to be binding and final) so that to the extent possible,
the actual tax revenues generated by the mill levy, as adjusted, are
neither diminished nor enhanced as a result of such changes. For
purposes of the foregoing, (i) a changc in the ratio of actual valuation
to assessed valuation shall be deemed to be a change in the method
of calculating assessed valuation; and (ii) 2001 shall be the base year
for the ratio for actual valuation to assessed valuation. (emphasis
added)
This provides for a limited mill levy (which was determined to be 50 mills), and for adjustments of
that limited mill levy for changes in law.
Since we wrote the above language, an issue has come to our attention regarding the
method by which the adjustment is made which we believe merits a slight change in this language
so as to not impair the District's ability to issue multiple series of bonds. For multiple series of
bonds the language above may not work as well for the District if the law concerning how assessed
valuation is calculated changes between two bond issues. In such an event, the limited mill levy
adjustment would be different for one series of bonds than it would be for a subsequent series,
assuming a change in law between one issue and the next. In order to address that issue, we
recommend that the italicized words above be changed to read "after the date of the original approval
of this Service Plan". With this change, the District's mill levy adjustments will be the same for
every bond issue (i.e., the 50 mills will be adjusted to be the equivalent of 50 mills under today's
law), which is we think the real intent of the above provision, rather than having the potential of
being different for different series of bonds.
AUG -09-01 12:41 From:
Sherman & Howard L.L.c.
T-195 P.04/04 Job -760
Garfield County, Colorado
August 9, 2001
Page 3
With or without the above change, we believe that the petitioners have properly
addressed all of the issues raised in our May 7 letter. If you have any questions about this letter,
please feel free to call or write.
Sincerely,
SHERMAN & HWARD, L.L.C.
Blake T. Jordan
cc: Alan Matlosz, George K. Baum & Company
4
LEAVENWORTH & KARP, P.C.
ATTORNEYS AT LAW
LOYAL E. LEAVENWORTH
SANDER N. KARP
DAVID E. LEAVENWORTH, JR.
DAVID C. HALLFORD
DAVID H. McCONAUGHY
SUSAN W. LAATSCH
JAMES S. NEU
JULIE C. BERQUIST
NICOLE D. GARRIMONE
ROBERT B. REICH
MICHAEL B. SUTCH
ANNA S. ITENBERG
Arthur B. Ferguson, Jr., Esq.
Holland & Hart, LLP
600 East Main Street
Aspen, CO 81611
1011 GRAND AVENUE
P. O. DRAWER 2030
GLENWOOD SPRINGS, COLORADO 81602
Telephone: (970) 945-2261
Facsimile: (970) 945-7336
LKLaw@Sopris.net
August 13, 2001
Re: Landis Creek Metropolitan District Nos. 1 and 2
Dear Boots:
• `✓
DENVER OFFICE:*
THE TERRACENTRE BUILDING
1100 STOUT STREET, SUITE 470
DENVER, COLORADO 80204
Telephone: (303) 825-3995
Facsimile: (303) 825-3997
*(Please direct all correspondence
to our Glenwood Springs Office)
JOSLYN V. WOOD
Of Counsel
VIA FAX
925-9367
As you know, we represent Spring Valley Sanitation District ("SVSD"). We are writing
to comment on the proposed Service Plan for Landis Creek Metropolitan District Nos. 1 and 2,
which the Garfield County Commissioners will be hearing on Monday, August 13, 2001. We
have discussed the items mentioned below with Greg Boecker, President of the Board of SVSD,
and he concurs with our comments.
Paragraph I(A)(1) - Pages 3 to 4. The last sentence on Page 3 that continues onto Page
4 should read "..., and the Financing District will finance the construction of such infrastructure,
some of which may be conveyed to the County, or Spring Valley Sanitation District ("SVSD")
as to sewer infrastructure, as appropriate."
Paragraph I(A)(3) - Page 9. A final sentence to this paragraph should be added that reads:
"Wastewater facilities and services will not be provided by the Districts to included or annexed
parcels without the prior consent of SVSD."
Paragraph II(B)(2) - Page 19. After the first sentence (ending with "to said systems"), the
following sentences should be inserted to read: "All wastewater facilities to be dedicated to SVSD
shall comply with the SVSD's Rules and Regulations, as adopted and amended from time to time,
to the extent the Rules and Regulations do not conflict with the December 15, 1999 Plant
Development Agreement as hereinafter defined ("SVSD's Rules and Regulations")."
A last sentence to Paragraph II(B)(2) should be inserted that reads: "Wastewater collection
facilities shall not be construed to mean a wastewater treatment plant so long as a wastewater
treatment plant is owned and operated by SVSD and SVSD has not breached the Pre -Inclusion and
I: \2001 \ Clients \SVSD\ 1-General\Letters-Memos\Ferguson-1. wpd
LEAVENWORTH & KARP, P.C.
Arthur B. Ferguson, Jr., Esq.
Page 2
August 13, 2001
Wastewater Treatment Plant Development Agreement dated December 15, 1999 between Spring
Valley Sanitation District, the Developer, and landowners within SVSD's boundaries, as it may
be amended from time to time ("Plant Development Agreement").
Paragraph III(B) - Page 24. At the end of Section B on page 24, add the following: "All
wastewater facilities to be dedicated to SVSD shall comply with the SVSD's Rules and
Regulations . "
Paragraph III(C)(1) - Page 24. The first sentence needs clarification, as it is difficult to
understand. In the second sentence, District coordination with SVSD "may" be necessary should
read "will be necessary."
Paragraph IV(B) - Page 29. A paragraph needs to be added to this section at the end that
states: "No wastewater system improvement fee (tap fee) or any other periodic wastewater service
charge denominated as such shall be imposed by the Districts; provided however, that periodic
service changes may be imposed in connection with maintenance and management of ISDS
systems or as otherwise agreed to in writing between the Districts and SVSD. Subject to the
foregoing sentence, the Districts shall be limited to imposing a mill levy for the recoupment of
expenses associated with the installation, operation, maintenance, repair and replacement of its
wastewater facilities."
Paragraph VI(A) - Page 34. In the last paragraph, the first sentence should end with:
"...within the Project, except as to wastewater facilities to be dedicated to SVSD, in which case
the provisions of SVSD's Rules and Regulations apply."
Paragraph VI(B) - Page 34. To avoid any confusion with SVSD, we request that the
Spring Valley Master Association change its name to a name not including the words "Spring
Valley". You have already agreed to rename the Districts.
Paragraph VI(C) - Page 34. The existing Paragraph VI(C) should be renumbered to VI(D)
and a new Paragraph VI(C) should be inserted to read:
"C. Plant Development Agreement dated December 15, 1999.
Developer entered into that certain Pre -Inclusion and Wastewater Treatment Plant
Development Agreement dated December 15, 1999 with the Spring Valley Sanitation
District and other landowners within SVSD's boundaries ("Plant Development
Agreement") regarding the construction of a wastewater treatment plant to serve the
region, including the Project. The Districts shall comply with SVSD's Rules and
Regulations, as adopted and amended from time, to time to the extent the Rules and
Regulations do not conflict with the Plant Development Agreement. In addition, the
Districts shall not take any action that would directly or indirectly modify, breach or alter
I: \2001 \Cliems\S V S D\ 1 -General\ Letters-Memos\Ferguson-1. wpd
LEAVENWORTH & KARP, P.C.
Arthur B. Ferguson, Jr., Esq.
Page 3
August 13, 2001
in a material way the rights and obligations of the parties under Plant Development
Agreement or SVSD's Rules and Regulations."
Upon review of these comments, please feel free to call me with any questions. We will
be attending the hearing on the proposed Service Plan on August 13, 2001 before the Garfield
County Board of County Commissioners. If, for any reason, you object to any of the above
modifications to the Service Plan and its exhibits, and are unwilling to make these changes prior
to the County's final review, please inform me of those objections.
Very truly yours,
LEAVENWORTH & KARP, P.C.
Loyal Leavenworth
LEL:
cc: Greg Boecker
Chris Thorne, Esq. (via fax)
I: \2001 \Clients\S V S D\ 1-General\Letters-Memos\Ferguson-1. wpd
s
•
•
•
DENVER• ASPEN
BOULDER• COLORADO SPRINGS
DENVER TECH CENTER
BILLINGS • BOISE • CASPER
CHEYENNE • JACKSON HOLE
SALT LAKE CITY • SANTA FE
WASHINGTON, D.C.
HOLLAND & HART LLP
ATTORNEYS AT LAW
600 EAST MAIN STREET, SUITE 104 TELEPHONE (970) 925-3476
ASPEN, COLORADO 81611-1991 FACSIMILE (970) 925-9367
Arthur B. Ferguson, Jr.
June 27, 2001
(800) 840-9360 Fax
aferguson@hollandhart.com
Garfield County Board of County Commissioners
109 8th Street
Glenwood Springs, CO 81601
RE: SPRING VALLEY METROPOLITAN DISTRICTS NO. 1 AND NO. 2,
GARFIELD COUNTY, COLORADO
Dear Board of County Commissioners:
On behalf of Spring Valley Development, Inc., please find enclosed for your
review and approval four (4) copies of the proposed Service Plan for Spring Valley
Metropolitan Districts No. 1 and No. 2, which Service Plan contains all of the
information mandated by C.R.S. § 32-1-202(2), as well as the related filing fee. The
districts ("Districts") are being formed in connection with that residential and
recreational community in Garfield County, Colorado known as Spring Valley Ranch
Planned Unit Development (the "PUD").
It is my understanding that the County will file the Service Plan with the
Garfield County Clerk and Recorder at least ten (10) days prior to a regular meeting of
the Board of County Commissioners and have the Clerk and Recorder provide
notification of such filing to the Division of Local Government and State Auditor, as
set forth in C.R.S. § 32-1-202(1).
Pursuant to C.R.S. § 32-1-202(1), the Service Plan was referred to the Garfield
County Planning Commission for its review. Staff reviewed the Service Plan and
forwarded it for review and comment to special counsel for the County, Blake Jordan of
Sherman & Howard, and to Alan Matlosz of George K. Baum & Company, special
financial advisors to the County. Prior to receipt of their comments, the Planning and
Zoning Commission held its first hearing on the Service Plan; the hearing was
continued in order to have the benefit of the comments from Mr. Jordan and Mr.
Matlosz.
The County received their comments and forwarded them to us for our review.
We met with Mr. Deford and Mr. Bean with Mr. Matlosz on the phone and reviewed the
•
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HOLLAND & HART LLP
ATTORNEYS AT LAW
Garfield County Board of County Commissioners
June 27, 2001
Page 2
comments and those of Mr. Deford and Mr. Bean. All of Mr. Jordan's
recommendations in his May 8, 2001 letter were incorporated into a revised copy of the
Service Plan. We also addressed the matters raised by Mr. Deford and staff. Many of
the comments of Mr. Matlosz were addressed through the incorporation of Mr. Jordan's
recommendations. Mr. Matlosz thereafter provided us with additional comments. All
of the comments raised have been addressed in the revised Service Plan. Mr. Jordan's
final review comments had not been received by the time of the continued hearing
before the Planning and Zoning Commission. Accordingly, the Commission
recommended approval of the Service Plan with the condition that any subsequent
comments from Mr. Jordan must be satisfactorily addressed.
For your convenience, I have attached a redlined copy of the Service Plan that
highlights the changes that have been made in response to the comments we have
received during this process
Mr. Jordan's recommendations and the location of the responses in the redlined
and revised Service Plan are summarized as follows:
a. include a mill levy limit of 50 mills; this was done on page 10;
b. add a debt limit; this was done on page 12;
c. consider the control over the maintenance and operations expenses; this has
been done on page 11 through a debt serve mill limit and primarily through
the elimination of the project roads from the Service Plan;
d. include a reference to annexation of additional properties into the District
that would require a modification of the Service Plan; this was done on
page 8;
e. remove and replace language relating to County obligations; this was done on
page 14;
f. place restrictions on obligations issued to the Developer; this was done on
page 14 with a 3.5% figure that Mr. Matlosz agreed with;
g. remove language relating to contingent obligations; this was done on
page 32;
h. add language relating to the District ownership of public improvements only;
this was done on page 15 and through the elimination of the project roads
from the Service Plan; the project roads will be owned and maintained by the
homeowners; and
i. remove additional language relating to modifications and the County; this
was done on page 36 and 37.
r
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HOLLAND & HART LLP
ATTORNEYS AT LAW
Garfield County Board of County Commissioners
June 27, 2001
Page 3
Mr. Matlosz's final comments contained a primary recommendation that there be a 35
mill limit for debt service obligations. This was included on page 11. A number of
additional suggestions were incorporated and are reflected on the redlined draft.
We have also prepared a proposed Intergovernmental Agreement to be entered into by
the two Districts that articulates their respective responsibilities in implementing the
Service Plan: A copy of the redlined version is attached as a part of this submission.
The changes that are highlighted were made in response to a concern expressed by Mr.
Deford.
I want to point out that the affordable housing component of the proposed PUD
is not included within, or as a component of, either of the proposed Districts. Due to
the minimal infrastructure costs associated with the affordable housing component of
the PUD, it is anticipated that the only costs to be incurred by the affordable housing
residents will be minimal service and maintenance costs related to water and sewer,
roads, landscaping and other such appropriate services.
The costs of such services shall in turn be offset through service fees paid by the
affordable housing residents and/or their homeowners association to the Districts
through a stand-alone agreement. The goal in excluding the affordable housing
component from the financing regime of the Districts is to keep the property taxes on
the affordable housing units as low as possible and by doing so, keep such units truly
affordable. It just did not make sense to pass on the infrastructure costs of the PUD to
these properties. In addition, in the event the homeowners of the affordable housing
desire to annex into the Financing District, a provision permitting the same has been
included in the Service Plan.
In regard to our decision to form dual districts to serve the PUD, this decision
was based in large part on our review of other such dual districts formed locally and
their success in operating and funding PUD projects. Such local dual districts include
Cordillera, Bachelor Gulch, and Redsky Ranch (all of which are located in Eagle
County), as well as Denver West located in Jefferson County. As Mr. Jordan indicated
in his letter, such a dual district structure is not an uncommon structure in special
districts.
•
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HOLLAND & HART LLP
ATTORNEYS AT LAW
Garfield County Board of County Commissioners
June 27, 2001
Page 4
If there are any questions or comments regarding the Service Plan enclosed
herein, please feel free to contact me directly.
Enclosures
(_J/
ince rely,
Arthur B. erguso
Of Holland & Har
cc: Don DeFord, Esq., Garfield County Attorney
Cam Kicklighter
Thomas Fenton Smith, Esq.
2741436_1.DOC
OENVER - ASPEN
BOULDER - COLORADO SPRINGS
DENVER TECH CENTER
BILLINGS - BOISE - CASPER
CHEYENNE - JACKSON HOLE
SALT LAKE CITY - SANTA FE
WASHINGTON. D.C.
Via Fax: 970-384-5005
HOLLAND & HART LLP
ATTORNEYS AT LAW
660 EAST MAIN STREET, SUITE 104
ASPEN. COLORADO 81671.1491
July 5, 2001
Don DeFord, Esq.
Garfield County Attorney
Garfield County
109 8th Street, Suite 300
Glenwood Springs, Colorado 81601
Gentlemen:
TELEPHONE WO) 925.8476
FACSIMILE (990} 825.9387
Arthur B. Ferguson, Jr.
(800) 840-9360 Fax
afervascro@hollandhart.com
Via Fax: 970-384-3470
Mark Bean
Garfield County Director of Planning
Garfield County
109 8th Street, Suite 303
Glenwood Springs, Colorado 81601
Re: Service Plan Hearing for Proposed Spring Valley
Metropolitan Districts Nos_ 1 and 2
On behalf of the organizers of the proposed Spring Valley Metropolitan
Districts Nos. 1 and 2, I axn writing to advise you that the organizers hereby
waive the thirty day limit for the conduct of a public hearing by the Board of
County Commissioners on the service plan of the proposed districts as
established in C.R.S. Sec 32-1-202(1). This waiver is provided in order to
conduct the public hearing on August 13, 2001 rather than August 6, 2001 that
would be within the thirty day time period provided for in the subject statute.
This waiver is provided in order to accommodate the schedule of the organizer
and its consultants in connection with their preparation and conduct of the
hearing.
We appreciate your assistance and cooperation in this matter.
ABF
cc: Cam Kicklighter
Stan Bernstein
Thomas Fenton Smith, Esq.
S'• •' e1y,
Q
hur B.
of Hol . ad & LL.F
NOTICE OF PUBLIC HEARING
GARFIELD COUNTY BOARD OF COUNTY COMMISSIONERS
The Garfield County Board of County Commissioners has received a proposed service plan for
the formation of the Spring Valley Metropolitan Districts No. 1 and No. 2. In accordance with
Colorado Revised Statute §32-1-204, notice is hereby given that the Board of County
Commissioners shall consider the proposed service plan at a public hearing to be held at 1:15 p.m.
on August 13, 2001, in the Commissioners Hearing Room, Room 301, Garfield County
Courthouse, 109 8th St., Glenwood Springs, Colorado. The hearing shall consider the approval or
denial of the proposed service plan. The Spring Valley Metropolitan Districts No. 1 and No. 2
service plans propose to form districts to construct certain public infrastructure and provide water
and sewer service, safety protection facilities and operations, lighting , weed and pest control, fire
protection, vegetation management, drainage , fire hydrants, transportation and
landscaping/recreational improvements.
The proposed Spring Valley Metropolitan Districts No. 1 and No. 2 encompass the Spring Valley
Ranch PUD property, located approximately 6 miles southeast of Glenwood Springs, off of CR
114 and 115.
All persons interested in this matter shall appear at the public hearing described above and show
cause why the Board of County Commissioners shall exclude such person's property from the
proposed districts boundaries. Any such person or persons shall have the burden of proving that
the exclusion of such property is not in the best interests of the proposed special districts. Any
person owning property in the proposed special district who request that his property be excluded
from the special district prior to approval of the amended service plan shall submit such request to
the Board of County Commissioners no later than ten (10) days prior to the hearing stated above,
but the Board of County Commissioners shall not be limited in its action with respect to exclusion
of territory based upon such request.
Sherman & Howard L.L.C.
Board of County Commissioners
Garfield County
109 8th Street, Suite 200
Glenwood Springs, Colorado 81601
ATTORNEYS & COUNSELORS AT LAW
633 SEVENTEENTH STREET, SUITE 3000
DENVER, COLORADO 80202
TELEPHONE: 303 297-2900
FAX: 303 298-0940
OFFICES IN: COLORADO SPRINGS
RENO • LAS VEGAS
March 1, 2000
RECEIVED
MAR 0 6 2000
BY:
Re: Proposed Rose Ranch Metropolitan District Service Plan
Ladies and Gentlemen:
We are special counsel to the County with respect to the review of the above -
referenced Service Plan for the proposed Rose Ranch Metropolitan District (the "District"). This
letter is in response to a request from the County Attorney's office to review and comment on the
Service Plan, with an emphasis on the financial provisions therein.
I. IN GENERAL
The District is proposed as a new entity to be approved at the upcoming May election.
Unlike the districts about which we have advised the County in the past, this District is what is
commonly referred to as a "developer district", in that initially there is a single (usually corporate)
property owner, and the District is either totally or mostly undeveloped. As such, its assessed
valuation is negligible until development occurs, and its ability to repay any debt issued is wholly
dependent upon development. It is this fact that we believe is the most important issue for the
County. The goal of the County should be to include in the Service Plan restrictions which will
prevent the District from incurring indebtedness in such a manner that may result in unreasonable
mill levies for the future residents and property owners of the District.
We have also discussed several related issues with the County Attorney's office,
primarily concerning operations and maintenance responsibilities, and it is our understanding that
the financial projections to be included in the final version of the Service Plan will contemplate an
increased level of operations and maintenance responsibilities of the District. The remainder of this
letter will focus on the issues surrounding the issuance of debt by the District.
IL RESTRICTIONS ON DEBT ISSUANCE IN THE SERVICE PLAN
The proposed Service Plan contains material restrictions upon the issuance of debt
by the District. In fact, as I have discussed with the County Attorney, the provisions in the Service
Plan controlling the issuance of debt are almost identical to provisions we have advised be included
in developer district service plans in previous advice rendered to the County. See Section II of our
advice letter to the County regarding the Spring Valley Sanitation District, dated February 23, 1999,
and you will see that the example of restrictive provisions we included there are actually more liberal
Sherman & Howard L.L.c.
Garfield County, Colorado
March 1, 1999
Page 2
than what the proponents of the District are here proposing.
Essentially, the controls which are now contained in the Service Plan, and which we
have recommended in the past, provide that until the District reaches what is defined as the "Debt
Issuance Threshold", i.e., when its assessed valuation is at least twice the amount of its debt. Until
that point, however, it is permitted to issue ad valorem tax supported bonds only in certain limited
circumstances, as follows:
1. Limited Mill Levy Bonds - bonds secured only by a limited mill levy not in
excess of 50 mills;
2. Rated Bonds - bonds which are rated in one of the top four categories by a
nationally recognized rating agency;
3. Letter of Credit Secured Bonds - bonds secured by a letter of credit issued by
a depository institution;
4. Insured Bonds - bonds which are secured by a policy of bond insurance.
The most likely category which will be used by the District in the early stages of its
development is number 1 above, Limited Mill Levy Bonds. Essentially, the District will obligate
itself to impose only a limited debt service mill levy of 50 mills for payment of the debt until the
Debt Issuance Threshold is reached. This means that prior to the date on which the Debt Issuance
Threshold is reached, the District will be obligated to impose a debt service mill levy of up to 50
mills and no more. Even if that is insufficient to repay the debt, the District is not obligated to
impose a higher mill levy. This essentially shifts the risk of a lack of development from the
taxpayers of the District to its bondholders (or to the developer or other provider of any credit
enhancement). While this normally means slightly higher borrowing costs for the District, it also
protects those taxpayers from unreasonable mill levies, even if development does not meet
expectations. In fact, it can actually enhance development in the early years because prospective
property purchasers do not have the danger of unlimited mill levies.
This limited mill levy arrangement differentiates this type of debt from the type which
caused problems for so many people in the late 80's. I should note also that this type of provision
has become very typical in Service Plans for developer districts.
The other exceptions to the Debt Issuance Threshold are also designed to protect the
property owners from unreasonable mill levies. If the bonds are rated, the County can take comfort
in the fact that a rating agency has assured itself that the mill levies necessary to pay the debt will
not become unreasonable. In practice, it is very rare to see rated bonds from any developer district,
and I have seen that only where there is some sort of credit enhancement, or where the District's
Sherman & Howard L.L.c.
assessed valuation is already high enough to support the debt.
Garfield County, Colorado
March 1, 1999
Page 3
If the bonds are secured by a letter of credit or insurance policy, this also has the
effect of assuring that the mill levies will not get out of control because the provider of the credit
enhancement is taking that risk rather than the property owners of the District.
I note that the restrictions in the proposed Service Plan are consistent with, and in fact
more restrictive than, the provisions of state law appertaining to special districts. The following is
an excerpt from the portion of the Special District Act (Section 32-1-1101, C.R.S.) which places
restrictions on the issuance of tax -supported bonds:
"(6) (a) The total principal amount of general obligation debt of a special
district issued pursuant to subsection (2) of this section, which debt is issued on or
after July 1, 1991, shall not at the time of issuance exceed the greater of two million
dollars or fifty percent of the valuation for assessment of the taxable property in the
special district, as certified by the assessor, except for debt which is:
(I) Rated in one of the four highest investment grade rating categories by one
or more nationally recognized organizations which regularly rate such obligations;
(II) Determined by the board of any special district in which infrastructure
is in place to be necessary to construct or otherwise provide additional improvements
specifically ordered by a federal or state regulatory agency to bring the district into
compliance with applicable federal or state laws or regulations for the protection of
the public health or the environment if the proceeds raised as a result of such issue
are limited solely to the direct and indirect costs of the construction or improvements
mandated and are used solely for those purposes;
(III) Secured as to the payment of the principal and interest on the debt by
a letter of credit, line of credit, or other credit enhancement, any of which must be
irrevocable and unconditional, issued by a depository institution:
(A) With a net worth of not less than ten million dollars in excess of the
obligation created by the issuance of the letter of credit, line of credit, or other credit
enhancement;
(B) With the minimum regulatory capital as defined by the primary regulator
of such depository institution to meet such obligation; and
(C) Where the obligation does not exceed ten percent of the total capital and
surplus of the depository institution, as those terms are defined by the primary
regulator of such depository institution; or
(IV) Issued to financial institutions or institutional investors.
(b) Nothing in this title shall prohibit a special district from issuing general
obligation debt or other obligations which are either payable from a limited debt
service mill levy, which mill levy shall not exceed fifty mills, or which are
refundings or restructurings of outstanding obligations, or which are obligations
Sherman & Howard L.L.c.
issued pursuant to part 14 of this article."
Garfield County, Colorado
March 1, 1999
Page 4
As can be seen, there are several exceptions to the Debt Issuance Threshold in the
statute which are not contained in the proposed Service Plan (e.g., the $2,000,000 de minimus limit).
As a result, the provisions of this Service Plan are actually more restrictive than what state law
would otherwise permit.
It should be noted that upon reaching the Debt Issuance Threshold (Le., assessed
valuation which is twice the amount of the District's debt), the District will be able to issue
unlimited mill levy bonds. However, when and ifthe District's assessed valuation reaches twice the
amount of its debt, the bonds could be paid with a mill levy of approximately 50 mills, and thus this
is also consistent with the County's desire to avoid a situation in which the District's mill levy would
become unreasonable. For example, if the District had an assessed valuation of $10,000,000 and
bonds outstanding in the amount of $5,000,000, and assuming a 8.00% borrowing rate (which is
higher than would be expected in today's interest rate market), a level amortization of that debt over
20 years would require $509,261 annually to be produced, which translates into a mill levy of
slightly over 50 mills, even assuming no further growth in assessed valuation. This release provision
is very typical in this type of service plan because at that point, the District would be sufficiently
developed, and could potentially reduce its borrowing costs (and thus its debt service mill levy) by
issuing normal, unlimited mill levy bonds.
III. CONCLUSION
Based upon a review of the financial provisions of the Service Plan, we feel the
limitations therein are consistent with the typical provisions most service plan providers include in
developer district service plans for similarly situated districts, and will provide future taxpayers
sufficient protection against unreasonable mill levies.
Sincerely,
SHERMAN & HOWARD L.L.C.
Blake T. Jordan
Sherman & Howard L.L.c.
Board of County Commissioners
Garfield County
109 8th Street, Suite 200
Glenwood Springs, Colorado 81601
ATTORNEYS & COUNSELORS AT LAW
633 SEVENTEENTH STREET SUITE 3000
DENVER, COLORADO 80202
TELEPHONE: 303 297.2900
FAX: 303 298-0940
OFFICES IN: COLORADO SPRINGS
RENO • LAS VEGAS • PHOENIX
May 8, 2001
Re: Comments on Service Plan for proposed Spring Valley Ranch
Metropolitan District Nos. 1 and 2
Ladies and Gentlemen:
We are special counsel to the County with respect to the review of the above -
referenced Service Plan for the proposed Spring Valley Ranch Metropolitan District Nos. 1 and 2
(collectively, the "Districts"). This letter is in response to a request from the County Attorney's
office to review and comment on the Service Plan, with an emphasis on the financial provisions
therein.
1. Overview of the Dual District Structure
The Service Plan describes a two district structure in which one district is the "control
district" (referred to in the Service Plan as the service district) and the other district is the "financing
district". The purpose of the two district structure is to allow the developer to remain in control of
the development through the entire development period, without the risk that the voters inside the
financing district can interrupt the issuance of bonds for improvements, or take other actions which
would affect the developer's ability to pursue the development to completion.
This control structure is normally brought to fruition as follows. The control district
is established as a small district the property of which will always be retained by the developer or
parties under its control, thus assuring that the developer cannot be voted out of office. The
financing district is established as the district in which the development, and the assessed valuation
that enables the financing of improvements, will be located. The property of the financing district
will be sold by the developer to third parties, thus giving those third parties the right to vote inside
the financing district, and in a short time after sales begin, the developer can lose control over the
board of directors of the financing district. This loss of control can jeopardize the developer's ability
to pursue the development to completion. In order to guard against this, prior to the time the
financing district has any voters or property owners other than the developer, the two districts will
enter into an intergovernmental agreement which purports to give the control district power over
some or all of the finances of the financing district. We have not seen the type of agreement
Sherman & Howard L.L.c.
Garfield County, Colorado
May 8, 2001
Page 2
proposed here, but they typically provide that the financing district is required to produce moneys
for the construction of improvements when the control district decides it should, or in the alternative,
to pay levy taxes or otherwise produce revenue for the payment of bonds issued by the control
district for those improvements. This contractual obligation is usually approved at an election while
the developer retains control of both districts, and is characterized as a general obligation of the
financing district, for the payment of which it obligates itself to impose property taxes. The
agreement will usually assign to the control district the rights of the financing district to decide upon
the nature, location, and timing of the improvements to be financed. In this case it is also proposed
that the financing district assign to the control district the right to determine annual operations and
maintenance expenses, which obligation will also be characterized as a general obligation debt of
the financing district to the control district.
In this way, the developer attempts to assure itself that it can issue bonds, build and
maintain improvements, and generally control the finances of the financing district, even if the board
of the financing district objects, or decides not to build further improvements, etc. It is not entirely
clear that such agreements would be upheld in the event of a challenge, and we think it possible that
some of the control aspects involved here could be attacked on various grounds, depending upon the
circumstances. However, for purposes of this letter, it is presumed that the control aspects described
in the Service Plan and to be implemented through the intergovernmental agreement will be
enforceable.
While the control/financing district structure is one which the County has not seen
before, it should be noted that this is not an uncommon structure in special districts, and there are
many such control/financing district arrangements which have been approved by other counties.
Also, if viewed from the standpoint of the developer, it can be seen why such a structure is desired.
In order to create a development of this scope, improvements have to be phased, the phases have to
be carried out as planned, and anything which stops that progress risks the investment that the
developer has made, and may risk a default on bonds issued in anticipation of further development.
Developers are loathe to take the risk that the ultimate build -out of the development can be brought
to a halt by a vote of the financing district's board of directors or electorate; thus, they seek to do
away with that power by contract, while retaining the ability to impose a tax on the financing
district's land.
This structure has been discussed with County staff, and it was determined that the
situation should be analyzed on the assumption that the County is willing to approve the
control/finance district structure if appropriate restrictions are included in the Service Plan.
2. Suggested Changes to the Draft Service Plan
We have reviewed the Service Plan, and have the following comments. Most of these
comments are the result of discussions with County staff members and the County attorney.
Sherman & Howard L.L.c.
Garfield County, Colorado
May 8, 2001
Page 3
A. Addition of Mill Levy Limits. There are no debt limits in the Service Plan, nor
are there any limitations upon the Districts' ability to impose ad valorem taxes for their payment.
In general, the current draft permits the Districts to incur debt in whatever fashion state law permits.
In our discussions with staff, it was indicated that in light of the unique structure of these Districts,
some further controls should be considered, and the control most favored was one which required
that all obligations payable from ad valorem taxes (which would include the proposed
intergovernmental agreement between the two Districts) would be payable solely from a limited mill
levy. This should assure the County that the financing District will not be forced to increase its mill
levies to an unreasonable amount.
In order to do this, we suggest the addition of the following provision:
The Districts shall not issue or incur any debt, bonds, notes, contracts,
or other obligations for the payment of which the Districts will be
contractually obligated to impose an ad valorem property tax, except
as described in this paragraph. The Districts may contractually
obligate themselves to impose an ad valorem property tax for the
payment of any bonds, notes, contracts, or other obligations
(including without limitation obligations issued or incurred for the
payment of capital costs, operations and maintenance costs, or any
other costs), only in an amount not in excess of ( ) mills for all
of such obligations; provided however, that in the discretion of the
obligated District, such obligations may provide that, in the event the
method of calculating assessed valuation is changed after the date of
the incurrence or issuance of such obligations, the mill levy limitation
provided herein may be increased or decreased to reflect such
changes, such increases or decreases to be determined annually by the
board of directors of the obligated District in good faith (such
determination to be binding and final) so that to the extent possible,
the actual tax revenues generated by the mill levy, as adjusted, are
neither diminished nor enhanced as a result of such changes. For
purposes of the foregoing, (i) a change in the ratio of actual valuation
to assessed valuation shall be deemed to be a change in the method
of calculating assessed valuation; and (ii) 2001 shall be the base year
for the ratio for actual valuation to assessed valuation.
The blank would be filled in with a reasonable mill levy amount, as determined between the County
and the developer. The actual number will depend upon a variety of factors, such as the amount of
existing and predicted overlapping mill levies from other political subdivisions, the projections of
expenses and debt service for the Districts, and similar factors. It is not unusual to see this limit
being set at fifty (50) mills.
Sherman & Howard L.L.C.
Garfield County, Colorado
May 8, 2001
Page 4
This provision would provide a definitive limitation upon either Districts' ability to
obligate itself to impose ad valorem property taxes. Essentially, this shifts the risk of development
from the taxpayers of the financing District to the investors or to the issuer of any guarantee or other
credit enhancement (e.g., a letter of credit, bond insurance, etc.).
The addition of the above paragraph will require a substantial re -writing of much of
the Service Plan, which is currently predicated upon the issuance of unlimited mill levy bonds, and
no attempt is made herein to re -write all parts of the Service Plan which would be inconsistent with
the above concept.
It should be noted that the above provision does not control bonds payable from non -
ad valorem property tax sources, such as water and sewer revenue obligations. Controlling rates and
charges for those items is more complicated and, in any event, those amounts are required by law
to be reasonable in light of the service provided. However, if this is something about which the
County is concerned, we can draft a provision which requires (for example) periodic rate studies and
adherence to the recommendations of such studies. I note that even this is cold comfort, as rate
studies and their results are largely dependent upon the person or firm selected to make the rate
study. We will await further direction from the County on this issue.
B. Addition of Debt Limit. County staff has suggested that the total permissible
obligations of the financing District be limited to a particular principal amount. In order to do this,
the following phrase could be added to the Service Plan:
The maximum principal amount of any bonds, notes, or other
evidences of a borrowing issued by any of the Districts shall be
limited to $
It is quite common for such limitations to be included in service plans. However, it should be noted
that a principal amount limit is not a completely effective method of controlling the amount of debt
incurred. For example, a contract to pay a certain number of mills per year for operations and
maintenance has no principal amount, and thus cannot be analyzed under this provision. However,
that would be controlled by the mill levy limitation provision above. Also, even in a traditional
borrowing which does have a principal amount, there are many ways of reducing that principal
amount while at the same time producing more proceeds than would otherwise be the case, such as
the issuance of premium bonds. Premium bonds bear an interest rate which is higher than market,
and are thus sold at a premium (i.e., for an amount greater than their face amount). For example, if
the interest rate is high enough above market, you can produce $10,000,000 in proceeds from an
$8,000,000 bond issue. However, regardless of whether something is characterized in terms of
principal and interest, or in terms of an annual mill levy, the mill levy limitations above will control
it.
Sherman & Howard L.L.c.
Garfield County, Colorado
May 8, 2001
Page 5
C. Control Over Operations and Maintenance Expenses. Another item of
concern to County staff was the fact that all operations and maintenance expenses would be
controlled by the control District. If this is of concern, then the sections which make the financing
District contractually responsible for the operations and maintenance costs as determined by the
control District should be removed. These provisions are also pervasive, and no attempt has been
made herein to re -write those sections; however, it is a relatively straightforward task once the
decision has been made to do it.
It should be noted that this may be unpopular with the developer since the developer
seeks to assure itself that it can always maintain the improvements at a particular level, and require
the financing District to pay for it, regardless of any disagreement by the financing District. If that
is the case and the County wishes to consent to the developer's proposal to control the operations
costs through the control District, the mill levy limitations above (which would apply to an
operations and maintenance obligation payable from ad valorem taxes) might be considered
sufficient protection. So long as there are mill levy limitations in place, putting the financing
District in charge of the amount of operations and maintenance costs it wants to fund is more of a
policy issue than a financial issue.
D. Annexations. It is recommended that the Service Plan be changed to provide
that inclusions of property in an amount greater than a certain aggregate number of acres will be
deemed to be a material modification of the Service Plan. If this is added, the statement at the end
of Chapter 1 (3) that states the opposite should be removed, and the following substituted in its
place.
The annexation to the District of any property in excess of acres
in the aggregate shall be considered a material modification of this
Service Plan.
E. County Obligations. It is recommended that this sentence in Chapter 1 (6)
(B) be removed:
In this manner, Garfield County can be assured that the risks of
development and the responsibility for repayment of debt issued for
the Project will be borne solely by the residents and property owners
of the Project and will not become the responsibility, in any degree,
of the County.
Besides the fact that nothing in the dual district structure provides any such assurance, this language
implies that under some circumstance, the County might be responsible for such obligations. That
is not true, and there should be nothing in the Service Plan suggesting otherwise. Instead, consider
the following instead:
Sherman & Howard L.L.C.
Garfield County, Colorado
May 8, 2001
Page 6
All financial obligations issued or incurred by the Districts shall state
therein that they are solely the obligation of the issuing or incurring
District, and that Garfield County is not in any way liable for the
District's obligations.
F. Obligations Issued to the Developer. It is likely that the developer will
initially cause the Districts to issue bonds to the developer. While this is not at all uncommon, the
terms of such financings can sometimes be disadvantageous to the Districts since they have no
bargaining power at the time such a financing is concluded. If this is of concern to the County, we
suggest the addition of the following:
Any bonds, notes, contracts, or other financial obligations issued to
the Developer as consideration for a loan or advance shall be subject
to redemption, at the option of any District which is obligated for the
payment thereof, on any date after issuance, at a price of par and
accrued interest, without redemption premium, and shall not be issued
at a net effective interest rate higher than % in excess of the rate
per annum determined on the date of issuance pursuant to the most
recent "Bond Buyer Weekly Yields 20 G.O." index (the "Index")
published in the "Bond Buyer" as the general obligation bond yield
for 20 year maturity general obligation bonds, or if such Index
becomes unavailable, such other index as may be determined by the
District to be comparable to the Index.
The foregoing shall not apply to obligations issued or sold in a public
offering. As used herein, "Developer" includes Spring Valley
Development, Inc., its successors and assigns, and any entity which
owns or controls Spring Valley Development, Inc. or which is owned
or controlled by Spring Valley Development, Inc.
Again, so long as the mill levy limitations are in place, this may be unnecessary; however, this
provision will protect the Districts from certain abuses which we have discussed with staff, and
which could result in the Districts having debt obligations which would require an extraordinarily
large amount of money to pay or refund.
G. Contingent Obligations. One issue we have discussed with County staff is
the issuance of so-called contingent obligations. This is usually an obligation that the development
projections show cannot be paid, and is usually issued to and held by the developer against the event
that the projections are exceeded. If interest on such amounts compounds, it can result in an
extraordinarily large amount due in 20 years.
Sherman & Howard L.L.c.
Garfield County, Colorado
May 8, 2001
Page 7
The contingency to which such obligations are subject is not made clear in the Service
Plan, but it is likely that a limited mill levy obligation is contemplated. If the foregoing
recommendations for mill levy and debt limitations are included, this may become a moot point.
However, if the County believes that the Districts should issue debt only within the debt limits of
the Service Plan, the following sentence should be removed from Chapter V:
Districts shall also be entitled to issue contingent repayment
obligations in amounts which exceed the estimated general obligation
debt estimated in this Service Plan on condition that the provisions of
such contingent repayment obligations are in compliance with state
law and are subject to the limitations of state law regarding the
limitations on issuance of general obligation debt.
H. Private Improvements. We were informed that it is the developer's intent that
the roads inside the development be private roads, perhaps owned by the homeowner's association
or some other private entity. If this is the case, I question the District's ability to finance them with
public money. Even assuming the District has the state law power to do this, it seems unlikely to
us that bonds issued to pay for privately owned improvements would be exempt from federal income
tax, and I have no doubt that the projections of debt service expenses contemplate tax-exempt rates.
Perhaps the developer or its counsel could explain what their plan is in this regard. In any event, if
the roads or any other improvement the District will finance are going to be privately owned and not
open to the general public, and the developer cannot explain how the Districts will finance them
within the bounds of the law, I suggest removal of these as items to be financed. The County may
also wish to consider a provision in the Service Plan which provides:
All improvements, facilities, and other properties paid for or financed
by either of the Districts shall be public improvements, owned by the
District or another appropriate political subdivision of the State.
H. Miscellaneous Changes. We recommend the removal or modification of this
sentence in Chapter VI A:
The County will work only with the District or its agents who will
retain responsibility for assuring that plans submitted to the County
for approval are consistent with any requirements for review.
I'm not certain what this sentence is intended to do, but its wording implies that the County is
making a commitment of some sort, and the Service Plan should not contain any County
commitments.
Sherman & Howard L.L.c.
Garfield County, Colorado
May 8, 2001
Page 8
We also recommend the removal of the following italicized phrase from this sentence
in Chapter VII (A)(2):
Material modifications of this Service Plan, except as contemplated
herein, shall be subject to approval by the County in accordance with
the provisions of § 32-1-207, C.R.S.
Material modifications of the Service Plan are subject to such approval already, without the Service
Plan having to so provide. However, the italicized language implies that some material
modifications can be made without that approval, which is not the case. I think this sentence intends
to say is that some things may not be material modifications because of the language of the Service
Plan, but this language is unnecessary to achieve that result since, if it is permitted by the Service
Plan, it is not a material modification.
3. Conclusion
We believe that with certain changes the needs of both the County and the developers
can be met with respect to this development. We look forward to working with you on this project.
Sincerely,
SHERMAN & H WARD, L.L.C.
Blake T. Jordan
cc: Alan Matlosz, George K. Baum & Company
JUN.11.2001 2:49PM GEORGE K BAUM & CO NO.246 P.2/3
George K. Baum & Company
INVESTMENT BANKERS SINCE 1928
June 11, 2001
Garfield County Commissioners
109 8th Street, Suite 200
Glenwood Springs, Colorado 81601
Dear Commissioners:
I have received updated information regarding the proposed Spring Valley Metropolitan Districts.
I have reviewed the service plan and the financial information and have the following comments;
1. The changes to the Metropolitan Districts structure have been made actording to the discussion
on a telephone conference call held on May 31, 2001. The authority to issue debt has been
changed from general obligation bonds which would allow for an unlimited mill levy to
limited obligation bonds at a set maximum mill levy. The amount of debt authorization has
been reduced substantially and will be limited by a "not -to -exceed" amount as well as a ratio
of debt to assessed valuation. These changes will significantly reduce the development risk
for future residents,
2 There remains some inconsistency in the documents as to the mill levy limit. The financial
plan uses 45 mills as the maximum with 21 mills for operations and 24 mills for debt service,
The text of the service plan refers to both a 50 mill limit as well as a 45 mill limit. In addition,
the District will have the ability to adjust the relationship between the operating and debt
service levies as needed, This area needs clarification. First, I believe 45 mills was the limit
we discussed. Second there should be both a limit as well as flexibility in terms of the debt
service levy. If the District had complete flexibility, it could levy 45 mills for debt service and
would have no ability to levy for operations. This does not seem practical, A reasonable
solution would be to set the total combined mill levy at 45 and the debt service mill levy limit
at 35,
3, The issuance of the limited mill levy bonds are farther controlled by the ratio of debt to
assessed valuation. In our discussion, a 25% debt to assessed ratio was discussed. The service
plan includes a ratio of 30%. I do not believe that this difference is significant; nonetheless
the exact ratio should be determined.
4. The development assumptions regarding how many homes would be built and at what value
have remained the same. The ability of the developer to meet those projection remains in
question its importance has been reduced because of the new debt structure. However, if
development is slower than projected, there may be problems operating the development at the
level required to satisfy existing residents and maintain the quality of the improvements. One
last comment on this issue is the exact number of lots to be developed. Three numbers are
used in the various documents: 502, 482, and 396. As far as I can tell, there will be 502 lots
717 Seventeenth Street Salle 2500 ' Denver, Colorado 602023354
Phone (303) 292.1600
JUN.11.2001 2:49PM GEORGE K BAUM 8: CO NO.246 P.3/3
but 20 will remain undeveloped. It seems easier to simply assume that there are 482 lots
available for development. In Schedule 1 for District #1, only the 396 "single family homes"
are shown. The golf duplex units and wilderness cabins are not shown. Are these other homes
not shown because there is no land sale involved? Whatever, the reason, this needs to be made
clear.
Overall, the use of limited obligation bonds will reduce the risk of a huge debt service levy being
imposed on the residents. This change represents a major improvements to the service plan. There
remains the risk that development will not meet projections although this is a similar risk taken on
with other developments.
I appreciate the opportunity to provide service to Garfield County. Do not hesitate to call if you have
any questions or need any additional assistance.
Sincerely,
GEORGE K. BAUM & COMPANY
Alan T. Matlosz
First Vice President
ATM/dn
SPRING VALLEY DEVELOPMENT, INC.
415 East Hyman Avenue, Suite 101
Aspen, Colorado 81611
Telephone - 970-920-9103
Facsimile - 970-920-9145
M u MORA V DUM
To: Mark Bean
From: Coleman C. "Cam" Kicklighter
Date: June 6, 2001
Subject: Spring Valley Metropolitan Districts — Service Plan
Included herewith are 20 copies of the following:
• June 6, 2001 Modified and Restated Service Plan (Included within this Document
is the IGA, indicated as exhibit D).
• Restated Financing Plans as prepared by Stan Bernstein & Associates, which is
part of the modified and restated Service Plan.
• Sensitivity Analysis for a reduction in assessed valuation to $1,500,000 and
$1,000.000. Stan Bernstein prepared them and they are referenced as 50% and
75% noted in the document reference on the bottom right-hand corner of each
page of the Cash Flow Forecasts.
Also included for your review is a copy of the Economic Research Associates, Updated
Market Research Analysis final report as of January, 2001. Inside the binder cover is our
own internal assessment of real estate pricing. As you will see, our internal pricing is
more conservative than the Economic Research Associates report.
1
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•� PRE -INCLUSION AND
:moo WASTEWATER TREATMENT PLANT
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ma THIS PRE -INCLUSION AND WASTEWATER TREATMENT PLANT
• m DEVELOPMENT AGREEMENT (hereinafter "Agreement") is made and entered into this 15th
,;; day of December, 1999, by and between SPRING VALLEY SANITATION DISTRICT, a
a Colorado special district, (the "District"); SPRING VALLEY DEVELOPMENT, INC., a
o o Colorado corporation, ("SVD"); BERKELEY FAMILY LIMITED PARTNERSHIP, a Colorado
• •
limited partnership, ("Berkeley"); COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT,
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a statutory junior college district ("CMC"); LOS AMIGOS RANCH PARTNERSHIP, a
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m Colorado general partnership, ("LARP"); COLORADO PINON PINES, LTD., a Colorado
r w limited partnership ("Pinon Pines"); and WILLIAM AND PAMELA GIBSON ("Auburn
r• 0 Ridge"). SVD, Berkeley, CMC, LARP, Pinon Pines, and Auburn Ridge are hereinafter
• collectively referred to as "Landowners." SVD, Berkeley, CMC, and LARP are hereinafter
collectively referred to as "Funding Landowners."
WITNESSETH:
WHEREAS, the District is a Colorado special district formed and organized in 1980 and
functioning pursuant to the authority of Colo. Rev. Stat. §§ 32-1-101., et seq., providing
wastewater treatment service to an area in Garfield County, Colorado; and
WHEREAS, the Landowners are respectively the fee and equitable owners of one
hundred percent (100%) of certain real property located in the Spring Valley area of Garfield
County, Colorado, as more particularly described in Exhibit A, attached hereto and incorporated
herein by this reference (the "Service Property"); and
WHEREAS, the Landowners desire that the Service Property be included in the District
and that the District provide wastewater treatment service to the Service Property; and
WHEREAS, the Board of Directors of the District (the "Board") has determined that it
is in the best interests of the District to expand the District boundaries to include the Service
Property and to provide central wastewater treatment service to the Service Property by
constructing, managing, and operating a new wastewater treatment plant; and
WHEREAS, Colo. Rev. Stat. §§32-1-401, et seq., provide requirements and procedures
for inclusions of property into the District, and specifically Colo. Rev. Stat. §32-1-402(1)(c)
provides that agreements may be entered into "between a board and the owners of property
sought to be included in a special district with respect to fees, charges, terms and conditions on
which such property may be included"; and
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P.O. Box 2030
Glenwood Spgs, CO 81602
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a WHEREAS, pursuant to Colo. Rev. Stat. §32-1-401(1)(a), the Landowners filed Petitions
• z
E o for Inclusion with the District; and
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N d WHEREAS, pursuant to Colo. Rev. Stat. §32-1-401(1)(b), the District held duly noticed
N • public hearings on March 29, 1999, and April 22, 1999, at which hearings the inclusion of the
°' ; Service Property was approved by the Board of Directors for the District pursuant to Colo. Rev.
m m Stat. §32-1-401(1)(c)(I), subject to the terms and conditions of this Agreement between the
parties; and
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Nm WHEREAS, the District adopted an amendment to its 1979 Service Plan for the purpose
•
Gof incorporating the Service Property into its service area and providing for the construction of
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a new wastewater treatment plant, which Amended Service Plan was approved by the Garfield
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County Board of Commissioners on April 26, 1999; and
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co N WHEREAS, in 1998, the Funding Landowners each executed Initial Funding Agreements
with the District providing for the funding of a portion of the estimated costs of site application
approval from the Colorado Department of Public Health and Environment ("CDPHE") for the
proposed new wastewater treatment plant, an amendment to the existing District Service Plan,
and agreements for inclusion in the District of property owned by the Landowners; and
WHEREAS, pursuant to Colo. Rev. Stat. §§32-1-1001(1)(d) and (j -m), and 31-35-
402(1)(e) and (f), the District has the authority to obtain reimbursement of its costs in providing
services to District customers, including, but not limited to, sewer connections, inclusions in the
District, and planning and review of line extensions; and
WHEREAS, the Landowners are willing to provide funds, pursuant to the terms and
conditions set forth herein, for the construction by the District of a new tertiary wastewater
treatment plant and associated sewage and treated effluent collection and conveyance facilities
(the "Plant"), a depiction of which is contained in Exhibit B, attached hereto and incorporated
herein, in consideration of the District's inclusion of the Service Property within the District,
the District's provision of wastewater treatment service to the Service Property, and the
reimbursement of the Funding Landowners' construction cost contributions, including interest
accrued thereon as set forth herein; and
WHEREAS, the District and the Landowners desire to set forth the terms and conditions
pursuant to which the Service Property will be included within the District; the Plant will be
funded, designed, constructed, and operated; and construction cost reimbursements to the
Funding Landowners shall occur.
NOW THEREFORE, in consideration of the mutual covenants and agreements of the
parties and other good and valuable consideration, the adequacy and sufficiency of which is
hereby acknowledged, the parties, on behalf of themselves, their successors, assigns or
transferees, agree as follows:
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a z 1. Purpose of Agreement. The purpose of this Pre -Inclusion and Wastewater
= o Treatment Plant Development Agreement is to provide for the inclusion of the Service Property
within the District, the construction and initial operation of the Plant to provide wastewater
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N w treatment service for the property within the District's service area, as amended from time to
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time, and to provide for reimbursement of construction costs contributed by the Funding
CO ; Landowners.
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IMO m m 2. Incorporation of Recitals. The foregoing recitals are true and correct and are
0 incorporated herein by this reference.
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1.1 3. Termination of Initial Funding Agreements. Upon execution of this Agreement,
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Agreementsby the Initial Funding entered into the District and each of the Funding Landowners
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o • • shall terminate and all initial funding amounts required by the District under the Initial Funding
• Agreements shall be immediately due and payable upon execution of this Agreement. The
o • parties agree that under the terms of the Initial Funding Agreements, each Funding Landowner
is responsible for payment to the District of $50,000, and payment of such sums is a condition
precedent to execution of this Agreement. The District acknowledges receipt of such sums from
the Funding Landowners prior to the execution of this Agreement. Upon execution of this
Agreement, the Funding Landowners shall be responsible for funding the Plant Project Cost,
as defined in paragraph 18, below. The parties further agree that the Funding Landowners shall
have no right or claim for reimbursement or credit for funds contributed under the Initial
Funding Agreements, except as provided in paragraph 23, below, absent a breach of this
Agreement by the District.
4. Incorporation of District Rules and Regulations. The Rules and Regulations of
the District in effect on the date of execution of this Agreement, and any subsequent amendments
thereto, are incorporated into this Agreement by this reference. If no District Rules and
Regulations are in effect on the date of execution of this Agreement, this Agreement shall
incorporate those Rules and Regulations approved by the Board following execution of this
Agreement, and any subsequent amendments to those Rules and Regulations; provided,
however, the District Rules and Regulations incorporated into this Agreement, and any
subsequent amendments thereto, shall not operate to defeat or materially alter the parties'
express rights and obligations under this Agreement. From the effective date of inclusion of the
Service Property as established by an Order of the Garfield County District Court, the Service:
Property shall be subject to all lawful taxes, fees, rates, tolls and charges now in effect or which.
may later be lawfully levied or collected by the District, except as otherwise provided in this
Agreement. Further, all connections to the Plant and all lines for wastewater treatment service
on the Service Property shall be made in accordance with the District's Rules and Regulations
and technical specifications, and the terms and conditions of this Agreement.
5. Warranties and Representations. The Landowners make the following
representations and warranties to the District:
A. Each Landowner is the fee owner of its respective portion of the Service Property
and has good and marketable title to its portion of the Service Property, subject
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to any mortgage, covenants, deeds of trust, restrictions, reservations, or
easements now or hereafter affecting its portion of the Service Property;
B. Each Landowner has the full right, power and authority to enter into and perform
this Agreement;
C. To the best of each Landowner's knowledge, neither the execution of this
Agreement, nor the fulfillment or compliance with the terms and conditions of
this Agreement, will conflict with, or result in, a breach of any terms, conditions,
or provisions of, or constitute a default under, or result in the imposition of any
prohibited lien, charge, or encumbrance of any nature against its respective
portion of the Service Property under any other agreement, instrument, indenture,
deed of trust, mortgage, judgment, order, or decree of any court to which such
Landowner is party to or by which such Landowner or its portion of the Service
Property are bound; provided, however, that a Landowner may obtain a waiver
of any such terms or conditions, or a consent to its entry into this Agreement, and
remain in full compliance with this representation;
D. Each Landowner shall provide all easements necessary for the construction of the
Plant, pursuant to paragraph 11 of this Agreement; and
E. Each Funding Landowner can and will provide funds, pursuant to the terms and
conditions of this Agreement, for the design, construction, monitoring, final
testing and initial operation of the Plant.
6. Inclusion of Property. Provided each Landowner has satisfied all conditions
precedent to inclusion identified herein, the District shall take all steps necessary to finalize the
inclusion of the Service Property into the District pursuant to Colo. Rev. Stat. §§32-1-401 el
seq., including, but not limited to, obtaining an Order of Inclusion from the Garfield County
District Court, and filing and recording such Order with the Garfield County Clerk and
Recorder, the Garfield County Assessor, and the Division of Local Government of the Colorado
Department of Local Affairs. The Order of Inclusion shall not be tendered to the District Court,
and the inclusion of the Service Property shall not be effective, unless and until each of the
following conditions are satisfied:
A. Receipt by the District of all necessary approvals for Plant construction from state
and local government entities, including but not limited to final approval of a site
application by CDPHE for the Plant. Approval by governmental entities of the
necessary permits, or other regulatory approvals, shall be satisfactory to meet this
condition if such approval is made without conditions or with conditions approved
in writing by the District. If any necessary approval as contemplated in this
paragraph is received with conditions, the District shall have the right, after
consultation with the Landowners, to refuse to accept such conditions and may
declare such approval unsatisfactory for purposes of meeting this condition. In
the event that any condition precedent herein listed is not satisfied by July 1,
F: \ 1999\Agreements\SVSD-Development-Agmt-Final-3.wpd
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— i 2000, any Landowner may withdraw its request for inclusion in the District and
IT _ M withdraw from this Agreement pursuant to the provisions of paragraph 27 below.
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—- N W B. Receipt by the District of an acceptable financial guarantee from each of the
�• N U. Funding Landowners for one hundred percent (100%) of its pro rata share of the
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=.= m Er7a construction cost of the Plant, as more particularly described in paragraph 18,
.MI 0 below.
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0 7. Connection to District System. Prior to commencement of Plant construction, and
ttttttt� o a subject to the District's sole discretion, no Landowner shall have the right to receive additional
1...11- 1 m service from the District's wastewater treatment system in existence as of the execution of this
sm. tfl el Agreement ("Existing Treatment System"); provided, however, it is expressly agreed that the
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foregoing limitation shall not be construed to prevent or restrict any Landowner, or the
r transferee of any Landowner, from making connection to the Existing Treatment System and
Nom- G receiving wastewater treatment service therefrom pursuant to a Tap fee credit purchased by such
in Landowner from the District prior to the date of execution of this Agreement. The parties
recognize that the District has approved the Colorado Animal Rescue ("CARE") request to
connect its proposed animal shelter, which is to be located on the Service Property, to the
Existing Treatment System prior to commencement of Plant construction, and the parties agree
that CARE shall utilize no more than 1 EQR of capacity. The CARE connection shall not be
deemed a violation of the provisions of this paragraph.
No new wastewater treatment service shall be provided to the Service Property, and no
new connection shall be made to the Plant until the Service Property is included in the District,
the appropriate Landowner's application for service has been approved by the District, the
appropriate Landowner has complied with all connection requirements as established in the
District's Rules and Regulations, any applicable tap fees have been paid, a tap permit has been
issued, and Plant construction is completed. Upon completion of Plant construction, all existing
users of the District's Existing Treatment System shall connect to the Plant. Except as provided
in paragraph 22, below, in the event the District's service lines are constructed within four
hundred (400) feet of an operational individual sewage disposal system ("ISDS") on the Service
Property, the user of the ISDS shall be required to connect to the Plant within one (1) year of
notification from the District to the user that such connection is required.
8. Amended Service Plan. On February 5, 1999, the District submitted to Garfield
County an Amended Service Plan for the expanded wastewater treatment service to be provided
by the District, which was approved by the Garfield County Board of Commissioners on April
26, 1999. The respective obligations of the District and the Funding Landowners concerning
the costs and preparation of the Amended Service Plan are further described in the Initial
Funding Agreements. The parties agree that the District shall be permitted, after consultation
with the Funding Landowners, to make the sole decision regarding the ultimate size and extent
of any revisions to the District boundaries or service area, so long as such revisions do not cause
the Funding Landowners to be obligated to the District for any additional dollar amounts
pursuant to this Agreement, and do not result in the exclusion of the Service Property of any of
the Funding Landowners.
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9. Site Application, Plant Design and Construction Inspection Responsibility. The
District shall prepare and submit for approval a Site Application to the CDPHE pursuant to
Colo. Rev. Stat. § 25-8-702 for the Plant. The parties agree that the Plant shall be designed by
a qualified engineering firm selected at the sole discretion of the District ("District Engineer"),
with input from the Funding Landowner Representative as described in paragraph 17, below.
The Plant shall be located at the site of the Existing Treatment System. The Plant is intended
to be designed as a tertiary treatment plant capable of handling the maximum estimated capacity
needs of the District, currently estimated to be 500,000 gallons per day, and to be constructed
in a single phase; however, the parties agree that the District may determine to construct a
tertiary treatment plant of a capacity less than or greater than 500,000 gallons per day, if
economic or other practical considerations so dictate. The District shall maintain absolute
discretion, after consultation with the Funding Landowners, to design and construct a phased
facility or to change the capacity of the Plant if circumstances so require, so long as the capacity
needs of the Landowners are satisfied. The Site Application also will propose the facilities
required for the transportation of the treated effluent from the Plant to an outfall point located
in the Spring Valley Drainage on the Berkeley or SVD Service Property. The exact location
shall be determined by mutual agreement of the parties, approval of which shall not be
unreasonably withheld or delayed. The parties agree to cooperate and proceed in good faith to
complete and submit to CDPHE the Site Application as contemplated herein. The District
Engineer shall provide full engineering services, including design services, assistance during
bidding, and construction management, inspection and observation. The District Engineer and
the District shall agree, after consultation with the Funding Landowners, upon a maximum cost
for such services. During the period of construction, such services may include full-time on-site
representation by the District Engineer.
10. Landowner Use of Effluent. The Landowners shall have the right to receive,
without cost therefor, from the District the tertiary treated effluent from the Plant attributable
to the wastewater generated by use on their respective properties. To the extent reasonably
economically possible, the District will treat the effluent to meet State of Colorado Water
Quality Control Division policies for slow -rate land application of treated wastewater in effect
on the date of execution of this Agreement. The applicable limits shall be determined under the
State policy for "Reclaimed water used for green -belt and other secondary contact areas";
provided, however, the District shall treat the effluent to ensure that total coliform organisms
do not exceed a seven-day median number of 2.2 coliforms per 100 ml and a maximum
concentration of 23 coliforms per 100 ml in any individual sample. The District will not be
required to treat the effluent to meet any current or future state policy discharge limits for
turbidity (NTU). The effluent will be delivered along the outfall line to one or more discharge
points along the Spring Valley drainage. Each Landowner shall be responsible for delivery of
its treated effluent from the discharge point(s) along the outfall line to its respective place of use
on the Service Area property, including but not limited to the cost of: (1) delivery line
construction and maintenance; and (2) installation, operation and maintenance of any necessary
pumps and meters. The Landowners may use such effluent for agricultural purposes, irrigation
of golf courses, open space, or lawns and gardens within the District's Service Area if
appropriate governmental approvals and/or water rights, if required, for such uses are obtained
by the Landowners at the Landowners' sole expense. Any Landowner shall have the right to
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tap directly onto the District's outfall line to transport the treated effluent from the outfall line
. 8 to the Landowner's property; provided however, that such Landowner shall be responsible for,
CL G and incur all costs associated with, any necessary site approval required by the State of
N Colorado. The District agrees to cooperate with any Landowner in its efforts to receive site
m a approval for land application of treated effluent if required for the Landowner's direct
connection to the outfall line. Additional treated effluent generated by the Plant or treated
• effluent not requested by the Landowners entitled to it shall annually be offered, without cost
mem m therefor, for use pro rata by any of the Landowners who have notified the District of their desire
• o to use such additional amounts. The Landowners' respective rights to the use of effluent under
Si a this paragraph may be assigned, leased, or conveyed, provided such assignment, lease or
is) ri
conveyance is only to a successor development interest, a homeowner's association formed for
°D CY homeowners within the District's Service Area, an entity formed to operate golf courses or
ui o manage irrigation within the District's Service Area, or to one or more Landowners.
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r 11. Easements. The Landowners, if requested by the District, shall dedicate for no
additional consideration non-exclusive easements for all facilities, including access and
temporary construction easements, associated with construction, operation, maintenance, repair
and replacement of the Plant, including but not limited to easements for collection lines, outfall
lines, lift stations, drainage, and for delivery of reusable effluent to the Landowners. The
locations of such easements shall be determined by mutual agreement between the District and
each individual Landowner, approval of which shall not be unreasonably withheld or delayed.
Such easements shall be for the benefit of the District and other users of the Plant, if necessary.
The Landowners shall dedicate such easements to the District, free and clear of all liens and
encumbrances which would interfere, as determined by the District, with the District's use of
the easements. All easements to be dedicated shall be general utility easements of width
reasonably determined by the District. Further, the Landowners agree to dedicate other
necessary easements for access or completion of work on the Service Property and for future
expansion of District services to the Service Property as may be determined reasonably
necessary by the District. The Landowners shall further dedicate for no additional consideration
additional easements for sewer collection lines and appurtenant facilities as required and
approved by the District across the Landowners' Service Property to serve the Landowners'
Service Property. All such easements shall be determined and dedicated as needed by the
District for Plant construction and for internal collection lines. The parties agree that any
easements dedicated under this paragraph may be relocated upon request to the District by a
Landowner, provided such relocation shall not result in any cost to the District or any user of
the Plant. The District will cooperate with the Landowners in connection with its utilization of
such easements so as to minimize interference with the Landowners' development activities.
12. Easements to be Acquired by Eminent Domain. The District and the Landowners
agree that the District shall exercise its lawful rights to condemn non-exclusive easements across
property not within the Service Area under the following circumstances:
A. The District shall condemn, if necessary, any easements across property not
within the Service Area which are required for Plant construction, including but
not limited to construction of Plant facilities, temporary construction easements,
F:\ 1999\Agreements\S V SD-Development-Agmt-Final-3.wpd
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r- access easements, and easements for collection lines, outfall lines, lift stations,
and drainage. The cost of such eminent domain proceedings shall be deemed part
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B. The District shall condemn, at the request of any Landowner, any easements
across property not within the Service Area which are required to deliver treated
effluent to such Landowner under the provisions of paragraph 10, above. The
cost of such eminent domain proceedings shall be deemed a cost associated with
delivery of the treated effluent from the outfall line to the Landowner's Service
Area Property, which is solely attributable to the requesting Landowner.
13. Land Use Review. In any land use approval process, the District agrees to
confirm to Garfield County the availability of wastewater treatment service to the Service
Property consistent with and pursuant to the terms of this Agreement, and any other related
agreements.
14. Schedule. The District Engineer and the Funding Landowners have established
a master schedule, which outlines each of the major tasks to be accomplished by each of the
parties and the time contemplated for each activity. A copy of the master schedule is attached
hereto as Exhibit C and incorporated herein by this reference. The parties agree that time is of
the essence in this Agreement and the parties agree to cooperate and exercise their best efforts
to comply with the master schedule. So long as the District is proceeding in a workmanlike
manner and using its good faith best efforts, it shall not be liable for failure to comply with the
master schedule; the parties recognize that the master schedule reflects an aggressive time frame
at the request of the Funding Landowners. In addition, the District Engineer shall provide
detailed schedules indicating planned and actual progress for each of the design activities
contemplated. The District shall cause such detailed design schedules to be completed by the
District Engineer and updated monthly as required with actual progress indicated. Copies shall
be provided on a monthly basis by the District Engineer to the Board and the Funding
Landowners.
15. Plant Project Budget. The District Engineer has established a budget for Plant
construction ("Plant Project Budget"). The actual cost of all items contained in the Plant Project
Budget shall be designated the "Plant Project Cost." The Plant Project Budget shall include the
following:
A. All costs incurred or services provided by the District for the Landowners'
benefit associated with the inclusion of the Service Property within the District
boundaries, preparation and approval of the service plan amendment and site
application, preparation of this Agreement, and any other costs addressed in the
Initial Funding Agreements, including but not limited to engineering, legal, filing
or recording fees and related expenses or costs. Such costs shall include all
actual costs incurred by the District and reimbursed by the Funding Landowners
under the Initial Funding Agreements, and $23,000 of the funds expended by
CMC in conjunction with the District's 1996 secondary wastewater treatment
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facility expansion, as such contribution has reduced the costs of Plant approval,
design, and construction by that amount.
B. All costs incurred for acquisition of easements or real property necessary for
construction of the Plant, other than those provided pursuant to paragraph 11
above.
C. All costs incurred for payment of development, design, engineering, construction,
construction management, construction observation and inspection, final Plant
testing, and commissioning of the Plant.
A copy of the Plant Project Budget is attached hereto as Exhibit D and incorporated
herein by this reference. The District Board shall review and modify, if necessary, the Plant
Project Budget after consultation with the District Engineer and the Funding Landowners
following: (1) CDPHE approval of the Site Application for the Plant ("Site Approval
Deadline"); (2) the possible addition of necessary treatment processes, including but not limited
to required construction of winter storage reservoirs for land application of treated effluent; and
(3) identification of the lowest responsible bidder for construction of the Plant as described in
paragraph 17, below. The District Board may, at any other time, modify the Plant Project
Budget after consultation with the District Engineer and the Funding Landowners. The parties
agree that under the terms of this paragraph, the District Board shall have absolute discretion
to modify the Plant Project Budget, after consultation with the District Engineer and the Funding
Landowners, provided the Construction Cost per EQR, as identified in paragraph 20.B., below,
does not exceed $3,400. In the event the District Board's modification of the Plant Project
Budget results in a Construction Cost per EQR exceeding $3,400, such modification shall
require unanimous approval from the Funding Landowners.
In the event the District Board's modification of the Plant Project Budget results in a
Construction Cost per EQR exceeding $3,400 and the modification does not receive unanimous
approval from the Funding Landowners, the District Board may terminate construction of the
Plant. The parties further agree that if the District Board terminates construction of the Plant
following Funding Landowner denial of a Plant Project Budget modification, the District and
the Funding Landowners shall enter, into good faith negotiations to establish a mutually
acceptable Plant Project Budget and complete construction of the Plant. If mutual agreement is
not reached for the completion of Plant construction and the District elects to terminate
construction of the Plant under this paragraph, such termination of construction shall not be
deemed a breach of this Agreement by the District, nor shall the District be liable for any
damages incurred by any or all of the Landowners as a result of the District's actions. The Plant
Project Budget shall be deemed final upon award of the Plant construction bid under paragraph
17 below.
In the event the District and the Funding Landowners establish a mutually acceptable
Plant Project Budget which results in a Construction Cost per EQR exceeding $3,400, the
District shall resume construction of the Plant in a timely manner. If one or more Funding
Landowners elects not to provide its respective funding amount under the terms of the revised
F:\ 1999\Agreements\SVSD-Development-Agmt-Fina1-3.wpd
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oPlant Project Budget, such Funding Landowner(s) shall be designated a Partial Funding
Landowner for purposes of this Agreement. A Partial Funding Landowner shall not be deemed
win breach of this Agreement for failure to pay its pro rata share under the revised Plant Project
�„ 02 IL Budget. A Partial Funding Landowner shall, however, forfeit the right to utilize any taps for
▪ aits Requested EQRs under paragraph 19, Table B, above, until the Partial Funding Landowner
0 is)
provides payment of its entire funding amount under the terms of the revised Plant Project
— 0 m Budget to the District, together with interest earned thereon in the amount of twelve percent
ISI o (12%) per annum, compounded annually. In the event the Partial Funding Landowner fails to
0 m make payment of the entire funding amount, with interest, to the District within ten (10) years
•
OMNINof commencement of Plant operation, such Partial Funding Landowner shall forfeit all claims
for use of its requested taps and shall waive any right or claim for reimbursement or credit for
sums provided to the District under this Agreement or the Initial Funding Agreements. The
Partial Funding Landowner shall be precluded from purchasing unallocated taps from the
• ° District prior to payment of the entire funding amount, with interest; provided, however, such
CO 61
Partial Funding Landowner may purchase unallocated taps following expiration of the ten (10)
year period identified above. Upon receipt of payment from the Partial Funding Landowner,
the District shall reimburse the appropriate Funding Landowner(s) for their contributions to the
Plant Project Budget in excess of their Funding Amounts, plus interest collected on such sums.
16. Plant Design Process. By December 15, 1999, the Funding Landowners shall
provide the District with a final request for EQR capacity in the Plant, and the District Engineer
shall then prepare a Plant design for review by the Board and the Funding Landowners. Upon
review of the Plant design by the Funding Landowners, any Funding Landowner may present
evidence to the Board of an alternative plant design or cost estimate which will result in a cost
reduction exceeding ten percent (10%). The Board shall consider such evidence prior to
acceptance of the District Engineer's Plant design. The parties agree that any Funding
Landowner may approach the Board with a request for further modification of its EQR request
for capacity in the Plant, and the Board, in its reasonable discretion, may approve, approve with
conditions, or deny the Funding Landowner request, provided such request does not result in
any additional cost to the District or the remaining Landowners, or an unreasonable delay in
completion of the Plant construction.
The District Engineer shall design the Plant to comply with any condition of approval of
the Site Application and applicable federal, state and local environmental and design standards
at the most efficient and practicable overall capital construction, operations, and maintenance
cost. The District Engineer shall submit design progress reports to the District and the Funding
Landowners as are customary in the industry at 30%, 65%, and 95% completion, and shall
include in each progress report an update or review of the expected Plant cost. The Funding
Landowners shall have ten (10) days after receipt of each submittal to provide any comments
or concerns regarding the design of the Plant to the District Engineer and the District Board.
The comments of the Funding Landowners shall be considered by the District but need not be
implemented by the District. In the event a submittal contains a District Engineer conclusion that
the Plant Project Budget will be exceeded, the District Engineer shall utilize his best efforts to
re -design or make such other changes as may be required to cause the estimate of probable
construction costs to be within the Plant Project Budget. The final design documentation shall
F:\1999\Agreements\SVSD-Development-Agmt-Final-3.wpd
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az be prepared for public bidding and shall include complete construction documents consisting of
0 drawings and specifications prepared in the form of a project manual.
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N17. Plant Construction Process. Upon approval by the Board in its sole discretion and
N Q approval by CDPHE of the final plans and specifications of the Plant, the project shall be
m ILO publicly bid for immediate construction in accordance with Colorado statutes and shall be
m awarded to the lowest responsible bidder as may be determined in the sole discretion of the
Rum is) c,; m Board after consideration of the recommendations of the District Engineer and the Landowners.
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Upon receipt of all applicable permits by Garfield County, approval by CDPHE of the
site application and final plans and specifications for the new Plant pursuant to Colo. Rev. Stat.
§25-8-702, award of the construction contract, and receipt of financial guarantees from the
Funding Landowners as identified in paragraph 18, below, the District shall commence
construction of the Plant. The Plant shall be constructed by the District under the supervision
of the District Engineer. The construction shall be observed by a representative designated by
the Funding Landowners ("Funding Landowner Representative"). Changes to the construction
documents during the course of construction shall be forwarded promptly to the District Board
and the Funding Landowner Representative with the comments of the District Engineer.
18. Payment of Plant Project Costs. The Plant Project Cost shall be the several
responsibility of the Funding Landowners, subject to the cost recovery provisions of paragraph
23 below. By December 15, 1999, each Funding Landowner shall provide the District with an
acceptable financial guarantee for five percent (5 %) of its Funding Amount, as identified in
paragraph 19, Table B, below. Within thirty (30) days following the Site Approval Deadline,
each Funding Landowner shall provide the District with a financial guarantee for an additional
five percent (5 %) of its Funding Amount, as identified in paragraph 19, Table B, below. The
financial guarantees shall be in the form of a reserve fund or a clean irrevocable letter of credit
in a form and from a financial institution acceptable to the District, not limited to a Colorado
financial institution. In the event a Funding Landowner provides a clean irrevocable letter of
credit from a financial institution outside Colorado, the District may, in its sole discretion
require the Funding Landowner to provide either (1) a legal opinion letter verifying that the
state laws of the financial institution do not impair the District's ability to draw on such letter
of credit under the terms of this Agreement; or (2) confirmation by a bank licensed to do
business in the State of Colorado, doing business in the State of Colorado, and acceptable to the
District which is deemed a "Confirmer" as that term is defined in Colo. Rev Stat. §4-5-
102(a)(4), and subject to the obligations contained in Colo. Rev Stat. §4-5-107(a). The Funding
Landowner financial guarantees and monies provided shall be non-refundable and non -creditable
for future service requests in the event of Funding Landowner withdrawal or termination for
breach under paragraph 27, below.
Within twenty (20) days following the District's identification of the lowest responsible
bid for construction of the Plant and prior to awarding the construction contract, each Funding
Landowner shall provide the District with an acceptable financial guarantee for its Funding
Amount, as identified in paragraph 19, Table B, below, less the deposits described above and
any sums contributed under the Funding Landowners' respective Initial Funding Agreements.
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Ia c CMC's funding amount shall be further reduced by $23,000, as identified in paragraph 15
cabove. The acceptable financial guarantees shall be in the form of a reserve fund or clean
CL W irrevocable letter of credit in a form and from a financial institution reasonably acceptable to the
o6-1 LL District, not limited to a Colorado financial institution. In the event a Funding Landowner
CO ; provides a clean irrevocable letter of credit from a financial institution outside Colorado, the
a m District may, in its sole discretion require the Funding Landowner to provide either (1) a legal
ter• o
m opinion letter verifying that the state laws of the fmancial institution do not impair the District's
m 0 ability to draw on such letter of credit under the terms of this Agreement; or (2) confirmation
o m by a bank licensed to do business in the State of Colorado, doing business in the State of
N•
CO Colorado, and acceptable to the District which is deemed a "Confirmer" as that term is defined
Nin Colo. Rev Stat. §4-5-102(a)(4), and subject to the obligations contained in Colo. Rev Stat.
ix
m co §4-5-107(a). The Funding Landowner financial guarantees and monies provided shall be non-
refundable and non -creditable for future service requests in the event of Funding Landowner
oimo r- N withdrawal or termination for breach under paragraph 27, below.
CO meg.
Each Funding Landowner's share of the Plant Project Costs shall be paid monthly within
twenty (20) days of mailing from the District to the Funding Landowners of itemized billings
and the Contractor's summary invoice. Each Funding Landowner shall have the right to reduce
the amount of its respective financial guarantee by actual invoiced amounts paid to the District
under this paragraph, approval of which shall not be unreasonably withheld by the District. If
a Funding Landowner elects to establish a reserve fund for payment of its share of the Plant
Project Costs, the District will draw upon such reserve fund within twenty (20) days of the date
of mailing. In the event amounts billed to the Funding Landowners under this paragraph remain
unpaid twenty (20) days after the date they are billed, the District may declare the appropriate
Funding Landowner in default and assess a five percent (5 %) penalty on such overdue amounts.
Provided that the Funding Landowners comply with their funding obligations pursuant
to this Agreement, the District agrees that the construction of the Plant will be completed without
the imposition of any mechanic's liens on any portion of the Service Property of the complying
Funding Landowners. If a mechanic's lien is imposed on said portion of the Service Property,
the District will remove it, either through payment of the underlying obligation or bonding,
within ten (10) days of receipt of notice of the imposition of such lien.
19. Funding Landowners' Allocation of Plant Project Costs. The Funding
Landowners' allocation of Plant Project Costs shall be determined according to the provisions
of this paragraph, which are expressly contingent upon a maximum Construction Cost per EQR,
as defined in paragraph B below, of $3,400 and a corresponding maximum Funding Landowner
Cost per EQR, as defined in paragraph H below, of $4,000. In the event modifications to the
Plant Project Budget result in a Construction Cost per EQR exceeding $3,400 or a Funding
Landowner Cost per EQR exceeding $4,000, the District Board shall retain the right to modify
the cost obligations identified in Tables A and B below, subject to the approval of the Funding
Landowners. The estimated figures in paragraphs A through 1 of this paragraph are based upon
the data contained in Tables A and B, are provided by way of example and do not represent a
final calculation of the Funding Landowners' Allocation of Plant Project Costs. The actual
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J>- Funding Amounts will be based on the Plant Project Budget, as amended from time to time, and
a = on the EQR requests made by December 15, 1999.
... 0.. -J A. The capacity of the Plant, as measured in gallons per day, shall be divided by 350
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o determine the initial EQR capacity available in the Plant ("Plant EQR
U.
.,,1= m a Capacity"). The estimated Plant capacity is 500,000 gallons per day, resulting
a. m in an initial Plant EQR Capacity of 1429 EQRs.
"yam
Imo i c B. The Plant Project Budget shall be divided by the Plant EQR Capacity to
.- m m determine the Plant construction cost per EQR ("Construction Cost per EQR").
N 0
�...The estimated Plant Project budget, $4,510,000, divided by the estimated Plant
I. t9 In EQR Capacity of 1429 EQRs, results in an estimated Construction Cost per EQR om
o of $3,156.
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C. Existing user contributions for the Plant Project Costs are identified in Table A,
below. Table A identifies the existing in -District and contract users, including
the Los Amigos Ranch lot owners within the District who currently receive or are
entitled to receive District service ("In -District Users"), Auburn Ridge, Pinon
Pines, and 51 of CMC's EQRs. The EQR allocation for such users is identified
in the EQR column of Table A. The Construction Cost per EQR multiplied by
the EQR allocation results in the respective Contribution Amount for each
existing user in Table A. The District Board has determined that the
Construction Cost per EQR for In -District Users identified in Table A shall be
fifty percent (50%) of the Construction Cost per EQR for other users as
established in paragraph B above. The remaining fifty percent (50 %) of the
Construction Cost for the In -District Users shall be designated the "In -District
Shortfall." The estimated In -District Shortfall is $77,322 ($3,156/EQR
multiplied by .5 multiplied by 49 EQR = $77,322).
D. The Funding Landowners have preliminarily requested EQR capacity in the Plant
as identified in the Requested EQR column of Table B, below. The final request
for EQR capacity shall be made as specified in paragraph 16 above. The Funding
Landowner funding percentage is calculated by dividing the individual Funding
Landowner Requested EQR by the total Funding Landowner Requested EQR
("Funding Percentage"). The Funding Percentage is identified in Table B,
below.
E. The unallocated EQR capacity of the Plant is determined by subtracting the sum
of the Existing User EQRs, as identified in Table A, below, and the Funding
Landowner Requested EQRs, as identified in Table B, below, from the Plant
EQR Capacity ("Unallocated Capacity"). The initial Unallocated Capacity is
164.5 EQRs (1,429 - (175.5 + 1,089) = 164 EQRs) .
F. Each Funding Landowner shall be responsible for its proportional share of the
cost of the Unallocated Capacity. The cost per EQR of the Unallocated Capacity
F: \1999 \Agreements \SVSD-Development-Agmt-Final-3.wpd
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is determined by dividing the product of the Unallocated Capacity and the
Construction Cost per EQR by the total Funding Landowner Requested EQRs,
as identified in Table B, below. The estimated cost per EQR of the Unallocated
Capacity ("Unallocated Subsidy") is $477 (164.5 EQRs multiplied by
$3,156/EQR divided by 1,089 EQRs = $477/EQR).
G. The Funding Landowners shall be responsible for their proportional share of the
In -District Shortfall. The cost per EQR of such obligation shall be calculated by
dividing the In -District Shortfall by the total Funding Landowner Requested
EQRs, as identified in Table B, below. The estimated cost per EQR of the In -
District Shortfall ("In -District Subsidy") is $71 ($77,322 divided by 1,089 EQR
= $71/EQR).
H. The Funding Landowner Cost per EQR, identified in Table B, below, is the sum
of the Construction Cost per EQR, the Unallocated Subsidy, and the In -District
Subsidy. The estimated Funding Landowner Cost per EQR is $3,704
($3,156/EQR + $477/EQR +$71/EQR = $3,704/EQR).
I. The Funding Landowner's respective Funding Amount, as identified in Table B,
below, is the product of the Funding Landowner Requested EQRs and the
Funding Landowner Cost per EQR.
TABLE A
Existing User
EQR
Construction Cost per EQR
Contribution Amount
In -District Users
49
$1,578
$77,322
Auburn Ridge
29.5
$3,156
$93,102
CMC
51
$3,156
$160,956
Pinon Pines
46
$3,156
$145,146
Total
175.5
---
$476,526
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TABLE B
Funding Landowner
Requested
EQR
Funding
Percentage
Cost per
EQR (1)
Funding
Amount
Spring Valley Development, Inc.
646
59.3
$3,704
$2,392,784
Berkeley Family Limited
Partnership
112
10.3
$3,704
$414,848
Colorado Mountain College
61
5.6
$3,704
$225,944
Los Amigos Ranch Partnership
270
24.8
$3,704
$1,000,080
Total
1,089
100.0
---
$4,033,656
(1) Funding Landowner Cost per EQR calculated as follows:
Construction Cost per EQR (Plant Project Budget divided by 1429 EQRs) $3,156
Unallocated Subsidy (164.5 EQRs multiplied by Construction Cost per EQR divided by 1089 Funding EQRs) $477
In -District Subsidy (In -District Shortfall divided 2y 1089 Fundine EORs) $71
Total
$3,704
The parties agree that the District shall timely apply for a revenue -based loan from the
Colorado Water Resources and Power Development Authority ("Water and Power") prior to
commencement of Plant construction to finance the contribution amounts for the In -District
Users, Auburn Ridge, and Pinon Pines under this paragraph. The District agrees it will utilize
its best efforts to secure a revenue -based loan for such contribution amounts from Water and
Power, which will be repaid from District revenues. The District shall impose a Surcharge on
the In -District Users, Auburn Ridge, and Pinon Pines which additional revenue shall be used for
debt service on the loan; provided, however, the District agrees it shall not impose a Surcharge
exceeding ten dollars ($10) per EQR for the In -District Users and twenty dollars ($20) per EQR
for Auburn Ridge and Pinon Pines. In the event the District is unsuccessful in obtaining
financing from Water and Power, the Funding Landowners shall be responsible for providing
such financing on terms and conditions equivalent to those normally provided by Water and
Power. Any payments made by the Funding Landowners for existing user financing under this
paragraph shall be subject to the cost recovery provisions of paragraph 23 below.
The parties agree the data contained in Tables A and B reflect a Plant Project Budget of
$4,510,000 with surface stream discharges into the Spring Valley drainage, including Red
Canyon. Any subsequent modifications to the Plant Project Budget, EQR requests or financing
amounts in Tables A and B, above, shall result in an appropriate recalculation of the
Landowners' pro rata payment obligations under this paragraph. In the event modification is
required, the District shall recalculate the data contained in Tables A and B, above, and a copy
of such Tables shall be incorporated into this Agreement. Tables A and B shall be recalculated
after the completion of Plant construction to reflect the actual construction costs.
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20. Tap Allocation and Tap Fees. For purposes of this Agreement, a Tap refers to
the right to one EQR, to be defined in the District's Rules and Regulations. Except as provided
in paragraph 22 below, upon inclusion of its Service Property within the District, each Funding
Landowner shall have the right to use, on its Service Property, the number of new Taps
equivalent to its EQR request identified in Paragraph 19, Table B, above. The District shall
establish Tap Fees for each EQR of capacity in the District Plant upon award of the construction
contract under paragraph 17 above; provided, however, the District may establish such Tap Fees
prior to award of the construction contract if necessary for the sale of lots by one or more
Funding Landowners. Tap fees shall be modified as necessary after the completion of Plant
construction and payment of all associated costs to adjust the calculations described below based
on the actual construction costs. The District shall establish a Tap Fee for purchasers of Taps
located on the Service Property ("Service Property Tap Fee") and a Tap Fee for all remaining
purchasers of Taps, including but not limited to purchasers of unallocated plant capacity and
purchasers of taps located on property owned by any entity not a party to this Agreement
("Unallocated Tap Fee"). The Tap Fees shall be calculated as follows:
A. Service Property Tap Fees
1. The Funding Landowner Cost per EQR, as identified in paragraph 19,
Table B, above, shall be the base cost of the Service Property Tap Fee
("Base Cost"), which is subject to the cost recovery provisions of
paragraph 23 below.
2. The Base Cost shall be increased annually at the rate of five percent (5 %)
simple interest of the initial Base Cost.
3. The Base Cost shall be multiplied by .10 to establish a District reserve fee
to fund District operations and reserve ("District Reserve Fee"). The
District Reserve Fee shall not be subject to the cost recovery provisions
of paragraph 23 below.
4. The sum of the Base Cost and the District Reserve Fee shall be the
Service Property Tap Fee.
For purposes of example only, the Year 1 Service Property Tap Fee, based upon
a Plant Project Budget of $4,510,000 with surface stream discharge into Landis
Creek is as follows:
Funding Landowner Cost per EQR $3,702
District Reserve Fee $370
Total Tap Fee $4,072
B. Unallocated Tap Fees
F: \ 1999\Agreements\SVSD-Development-Agmt-Final-3.wpd
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Unallocated Tap Fees shall be established
Board shall establish such Unallocated Tap Fee
times the then -existing Service Property Tap Fee.
(10%) of the Unallocated Tap Fee.
by the District Board; provided, however, the
at no less than 1.5 and at no greater than 2.0
The District Reserve Fee shall be ten percent
21. Landowner Tap Allocation Modifications. Following completion of construction
of the Plant, the Funding Landowners may transfer Tap allocations among themselves pursuant
to the terms and conditions of this paragraph upon thirty (30) days notice to the District Board.
Following completion of construction of the Plant, any Landowner may request the District
modify its Tap allocation requested in Tables A and B of paragraph 19 of this Agreement. In
the event a Landowner requests an increase in Tap allocation, the request shall be granted by
the District Board on a first-come, first-served basis, to the extent unallocated Plant capacity
remains as determined by the District Engineer, provided such Landowner shall be required to
pay the Unallocated Tap Fee identified in paragraph 20.B., above. In the event a Landowner
requests a decrease in Tap allocation, the request shall be granted by the District; provided,
however, the District shall not sell such Taps prior to use of the District's entire Unallocated
Taps, nor shall the District sell such Taps prior to use of any other Landowner's Tap allocation
already returned to the District under the provisions of this paragraph. Any Taps returned to
the District by a Funding Landowner shall be sold at the Unallocated Tap Fee rate. The
Funding Landowner shall receive cost recovery for the full amount collected by the District less
the District Reserve Fee, following sale of a returned Tap; provided, however, such cost
recovery is subject to the cost recovery limitations of paragraph 24, below.
22. Spring Valley Development 35 Acre Property Tap Allocation. SVD may request
up to eighty-three (83) additional EQRs over and above the number required for its Service
Property. Such EQRs shall be for the purpose of servicing, if required, 35 acre parcels on
property to be a part of SVD's development in the Spring Valley area as more particularly
described in Exhibit E, attached hereto and incorporated herein by this reference (the "35 Acre
Property"). If such additional EQRs are requested by SVD and SVD provides funding for
construction of the Plant based on the inclusion of such EQRs in its EQR request in Table B,
the District shall provide wastewater treatment service to the 35 Acre Property. By
acknowledging this obligation to serve the 35 Acre Property, the District is not stating whether
inclusion of the 35 Acre Property into the District will be required or accepted, nor is the
District acknowledging any obligation to accept a dedication of the wastewater collection and
trunk lines in the 35 Acre Property. If the 35 Acre Property is included within the District
boundaries, the District is not required to accept a dedication of the wastewater collection lines
located on the 35 Acre Property; however, if dedication of the collection lines is not accepted
by the District, service charges to the 35 Acre Property shall not exceed those established for
other properties within the District's boundaries. If the 35 Acre Property is not included within
the District boundaries, service charges to the 35 Acre Property shall be no more than 150% of
the service charges to other users of the Plant. Tap Fees for the 35 Acre Property shall be the
Service Property Tap Fee as described in paragraph 20.A., above. The use of ISDS on the 35
Acre Property shall not be subject to the connection requirement described in paragraph 7,
above.
F: \ 1999\A greements\S V SD -Development -A gmt-Final-3. wpd
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>- 23. Cost Recovery. The District shall reimburse the Plant Project Cost to the Funding
a ZLandowners by providing a rebate upon collection of Tap Fees by the District according to the
following formulas:
N
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eo A. Cost Recovery from Service Property Tap Fees
NC:
IMMO .•a Q
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1. The District Reserve Fee shall be retained by the District.
MEM a
m o 2. The Construction Cost per EQR portion of each Service Property Tap Fee
a collected by the District shall be placed in a Construction Fee cost
N recovery interest-bearing escrow account, and all such fees and interest
.�osi
earned thereon shall be reimbursed quarterly to the Funding Landowner
from whose Service Property the Tap is sold.
Imo 40
to
..n. F o 3. Any remaining Service Property Tap Fee amounts collected by the District
co 00 under paragraph 20.A., above, shall be placed in a Subsidy cost recovery
interest-bearing escrow account, and all such fees and interest earned
thereon shall be reimbursed quarterly to the Funding Landowners, based
upon their Funding Percentage identified in Paragraph 19, Table B,
above.
B. Cost Recovery from Unallocated Tap Fees
1. The District Reserve Fee shall be retained by the District.
2. The remaining Unallocated Tap Fee amount collected by the District shall
be placed in the Subsidy cost recovery interest-bearing escrow account,
and all such fees and interest earned thereon shall be quarterly reimbursed
to the Funding Landowners, based upon their Funding Percentage
identified in Paragraph 19, Table B, above.
In the event the Funding Landowners are required to provide financing for the In -District
Users, Auburn Ridge, and Pinon Pines under paragraph 19 above, all Surcharge payments as
described in paragraph 19 above received by the District from the In -District Users, Auburn
Ridge, and Pinon Pines shall be placed in the Subsidy cost recovery interest-bearing escrow
account, and all such fees and interest collected thereon shall be quarterly reimbursed to the
Funding Landowners, based upon their Funding Percentage identified in Paragraph 19, Table
B above, and subject to the cost recovery limitations identified in paragraph 24 below.
24. Cost Recovery Limitations. The Funding Landowners agree that cost recovery
under the provisions of this Agreement shall be solely from District revenues, and any Funding
Landowner cost recovery rights shall not be deemed a debt repayment obligation by the District.
Further, the Funding Landowners agree that the District's cost recovery obligation shall not
exceed disbursement of funds placed in the cost recovery escrow accounts; however, the District
F: \ 1999\Agreements\S VSD-Development-Agmt-Final-3. wpd
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- may, in its sole discretion, elect to provide cost recovery from alternative funding sources. Each
a z
Funding Landowner's right to cost recovery shall terminate upon the occurrence of any of the
N o following events, whichever is earliest:
a .I
No A. Recovery of the Funding Landowner's actual costs expended for construction of
m ; the Plant (including any amounts provided to finance the In -District Users,
Auburn Ridge, and Pinon Pines), plus five percent (5 %) interest earned on the
m unrecovered sum, compounded annually; or
- • Cl
a B. Recovery of the Funding Landowner's actual costs expended for construction of
N•
m the Plant (including any amounts provided to finance the In -District Users,
t9 m
Auburn Ridge, and Pinon Pines), plus interest earned on the unrecovered sum
�� 10 o totaling two hundred percent (200%) of the Funding Landowner's actual costs
,F expended for construction of the Plant; or
o
CO CO
C. The expiration of the twenty-fifth (25th) full year of Plant operation, such Plant
operation to commence upon the date following completion of Plant construction.
25. Operation of the Plant. The District shall be solely responsible for operation of
the Plant. The Landowners agree that each Funding Landowner shall pay to the District a
quarterly Operational Reserve Fee for each unsold Tap identified in Paragraph 19, Table B,
above, under the terms and conditions herein. Subject to the provisions of paragraph 35 below,
the Operational Reserve Fee shall constitute a perpetual lien on and against each Funding
Landowner's Service Property under Colo. Rev. Stat. § 32-1-1001(1)(j). The District Board,
in its sole discretion, may modify the Operational Reserve Fee on a quarterly basis, provided
such fee shall not exceed $16.00 per unsold Tap per quarter. The Funding Landowners shall
pay the Operational Reserve Fee to the District in quarterly installments commencing the year
of initial Plant operation. In consideration of the Funding Landowners' agreement to pay the
Operational Reserve Fee, the District agrees to establish and utilize the following minimum
assessments to ensure revenue generation for operations, maintenance, repair and replacement
of the Plant:
A. Service Charges for private Tap owners connected to the District Plant shall be
assessed at a minimum of $24.00 per month; and
B. Service Charges for private Tap owners who have not yet connected to the
District Plant shall be assessed at a minimum of $6.00 per month; and
C. The District's mill levy shall be a minimum of four (4) mils; provided, however,
that the District may reduce the mill levy below four (4) mils to comply with
Colorado state law and/or to preserve the District's ability to operate as an
Enterprise, as that term is defined under the Colorado Constitution, Taxpayers'
Bill of Rights ("TABOR"). The District shall not reduce its mill levy any more
than necessary to comply with the provisions of this paragraph C. If a mill levy
reduction is required pursuant to this paragraph, such reduction shall, if legally
F:\1999\Agreements\S VSD-Development-Agmt-Final-3. wpd
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permissible, be effectuated pursuant to C.R.S. § 39-1-111.5, such that subsequent
increases in the mill levy contemplated herein shall not require voter approval.
The parties agree that all Operational Reserve Fee amounts collected from the Funding
Landowners shall be used exclusively for any operational and maintenance shortfall or
extraordinary repair or replacement associated with the Plant. The parties further agree that
such obligation is a contractual agreement between the District and the Funding Landowners,
and any Operational Reserve Fee payments shall not be deemed availability of service fees or
standby fees under the provisions of Colo. Rev. Stat § 32-1-1006. The District agrees it shall
maintain an interest-bearing reserve account containing all Operational Reserve Fee amounts,
which will be utilized only upon exhaustion of service fees, standby fees, mill levy revenues,
PILT (payment in lieu of taxes) payments provided for in Exhibit F hereto, and District Reserve
Fees collected by the District. In the event the Operational Reserve Fee reserve account exceeds
$150,000, the District shall suspend assessment of Operational Reserve Fees upon the Funding
Landowners until such time as the reserve account balance is less than $150,000. In the event
the District does not require a draw from the Operational Reserve Fee reserve account for any
consecutive thirty-six (36) month period, any further Operational Reserve Fee obligations by the
Funding Landowners shall terminate, and the reserve account funds shall be available for
discretionary use by the District. The parties agree that the minimum assessment obligations by
the District identified in paragraphs A -C above shall terminate at such time that the Funding
Landowners are no longer obligated to contribute Operational Reserve Fee amounts under this
paragraph.
26. Notification of District Business. From and after the effective date of this
Agreement as provided in paragraph 31 below, the District shall provide to each Funding
Landowner, at the address provided in paragraph 30, below, notice of all District Board of
Directors meetings and copies of all non -privileged materials provided to any member of the
District Board of Directors.
27. Withdrawal and Termination. Any Funding Landowner may elect to withdraw
from this Agreement prior to inclusion within the District and fulfillment of the Plant Project
Cost financial guarantee obligations under paragraph 18 above. In the event of withdrawal, such
Funding Landowner shall have no right or claim for reimbursement or credit for costs or
financial guarantees provided to the District pursuant to this Agreement or the Initial Funding
Agreements. Upon such withdrawal, the remaining parties may elect to continue to operate
under the terms and conditions of this Agreement with a readjustment of the pro rata capital
contribution obligations and cost recovery rights of the remaining Landowners.
This Agreement may be terminated by mutual agreement of all parties who have not
previously withdrawn upon ten (10) days notice for any reason; provided, however each
Landowner shall be responsible for its share of all costs incurred.
In the event the parties agree to terminate this Agreement following failure to approve
a mutually acceptable Plant Project Budget under the provisions of paragraph 15, above, such
F:\ 1999\Agreements\SVSD-Development-Agmt-Final-3.wpd
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CC z termination shall not be construed as a breach by the District or the Funding Landowners, and
- 0 no party shall incur liability for failure to complete construction of the Plant.
co
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o 29. Breach by Landowners; District's Remedies. In the event of a breach of any
of the material terms and conditions of this Agreement by one or more of the Landowners, the
✓ Board shall be notified immediately, and the District may take such action as the District deems
t' N necessary to protect the public health, safety, and welfare, to protect lot purchasers and builders,
and to protect the users of District facilities from hardship. A failure by a Funding Landowner
to pay Plant construction payments as required by paragraph 18 above shall be remedied by the
District through resort to the Funding Landowner's financial guarantee. With respect to all
other material breaches, in addition to all other remedies available at law, the District may:
A. Record with the County Clerk and Recorder an affidavit, approved in writing by
the Board and signed by the Chairman of the Board or any Board member, stating
that the terms and conditions of this Agreement have been breached by the
Landowner or Landowners. At the next regularly scheduled Board meeting, the
Board shall either approve the filing of said affidavit or direct a District
representative to file an affidavit stating that the default has been cured. Upon
the recording of such an affidavit, no further District services or assistance will
be provided in connection with the breaching Landowner's Service Property until
the default has been cured. An affidavit signed by the Chairman of the Board or
any Board member and approved by the Board stating that the default has been
cured shall remove this restriction;
28. Breach by District: Landowners' Remedies. In the event of a breach of any of
the material terms and conditions of this Agreement by the District, the parties agree that the
rights acquired by the Landowners under this Agreement are such that the failure of the District
to perform its obligations hereunder would cause irreparable harm to the Landowners and there
may be no adequate remedy at law. The parties therefore agree that , in addition to any other
equitable or legal remedies, the obligations of the District shall be specifically enforceable in any
court of competent jurisdiction. In the event of litigation concerning this Agreement, any
prevailing Landowner shall be entitled to an award of reasonable costs and attorney fees.
B. Call the appropriate Funding Landowner's financial guarantee(s) given, in their
entire remaining amounts, for the construction of the Plant;
C. Refuse to initiate the provision of wastewater treatment services to the breaching
Landowner's Service Property;
D. Pursue collection of any amounts due and unpaid, which includes the right to
collect attorneys' fees, filing fees, and lien recording fees incurred in such
collection efforts, in addition to the unpaid amounts due and interest charges.
Unless necessary to protect the immediate health, safety, and welfare of the District
users, the District shall provide the Landowners ten (10) days' written notice of its intent to take
F: \1999\Agreements\SVSD-Development-Agmt-Final-3.wpd
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any action under this paragraph during which ten day period the breaching Landowner or
iii
` : 5 Landowners may cure the breach described in said notice and prevent further action by the
'..." 0 District. The District can extend the deadline for cure at its discretion. Furthermore, unless an
Nmin. 11. o aaffidavit as described in paragraph A., above, has been recorded with the Garfield County Clerk
= N and Recorder, any person dealing with Landowners shall be entitled to assume that no default
,�,., m ac by Landowners has occurred hereunder unless a notice of default has been served upon the
Lk -
co_ m Landowner or Landowners as described above, in which event such Landowner or Landowners
OMNI a • shall be expressly responsible for informing such third party of the District's claim of default.
. m e Nothing in this paragraph shall be construed to limit any rights or remedies of the Landowners
mem a
m in the event of breach by any other Landowner(s).
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30. Notices to the Parties. All notices, requests, demands, consents, and other
communications pertaining to this Agreement shall be transmitted in writing and shall be deemed
duly given when received by the parties at their addresses below or any subsequent addresses
provided to the other party in writing.
Spring Valley Development, Inc.:
With copy to:
Berkeley Family Limited Partnership:
F:\1999\Agreements\SVSD-Development-Agmt-Final-3. wpd
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Attn: General Manager
411 East Main Street, Suite 205
Aspen, CO 81611
Phone: (970) 920-9103
Fax: (970) 920-9145
Anne J. Castle, Esq.
Holland & Hart, LLP
555 Seventeenth Street, Suite 3200
Denver, CO 80202
Phone: (303) 295-8400
Fax: (303) 295-8261
and
Atlantic Gulf Communities
Attn: General Counsel
2601 Bayshore Drive
Miami, FL 33133-5461
Phone: (305) 859-4071
Fax: (305) 859-4063
Michael Berkeley, M.D.
3961 County Road 114
Glenwood Springs, CO 81601
Phone: (970) 945-5432
Fax: (970) 945-4120 or 947-0012
With copy to:
Colorado Mountain Junior
College District:
With copy to:
Los Amigos Ranch Partnership:
With copy to:
Colorado Pinon Pines, Ltd.:
F: \ 3 999\Agreements\S V S D-Development-Agmt-Final-3. wpd
John R. Schenk, Esq.
Schenk, Kerst & DeWinter
302 Eighth Street, Suite 310
Glenwood Springs, CO 81601
Phone: (970) 945-2447
Fax: (970) 945-2440
-23-
Dr. Robert H. Spuhler, Vice President
P.O. Box 10001
Glenwood Springs, CO 81602
Phone: (970) 945-8691
Fax: (970) 947-8385
Glenn D. Chadwick, Esq.
Beattie & Chadwick
710 Cooper Avenue, Suite 200
Glenwood Springs, CO 81601
Phone: (970) 945-8659
Fax: (970) 945-8671
Thomas E. Neal, Managing Partner
141 West Jackson Blvd., Room 1720
Chicago, IL 60604
Phone: (312) 705-1915
Fax: (312) 416-1805
Lawrence R. Green, Esq.
Balcomb & Green, P.C.
818 Colorado Avenue
P. O. Drawer 790
Glenwood Springs, CO 81602
Phone: (970) 945-6546
Fax: (970) 945-9769
Mr. Bernard S. Selwyn
Colorado Pinon Pines, Ltd.
5900 Wilshire Blvd., Suite 420
Los Angeles, CA 90036
Phone: (323) 650-2511
Fax: (323) 650-0586
in
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With copy to:
Auburn Ridge:
Notice to District:
With copy to:
John A. Thulson, Esq.
Balcomb & Green, P.C.
818 Colorado Avenue
P. O. Drawer 790
Glenwood Springs, CO 81602
Phone: (970) 945-6546
Fax: (970) 945-8902
William and Pamela Gibson
Auburn Ridge Apartments
P.O. Box 376
Basalt, CO 81621-0376
Phone: (970) 927-3846
Fax: (970) 927-1298
Spring Valley Sanitation District
2929 County Road 114
Glenwood Springs, CO 81601
Phone: (970) 945-6399
Fax: (970) 945-6399
Loyal E. Leavenworth, Esq.
Leavenworth & Tester, P.C.
P. O. Drawer 2030
Glenwood Springs, CO 81602
Phone: (970) 945-2261
Fax: (970) 945-7336
31. Effective Date. The effective date of this Agreement shall be the later of the
date(s) on which this Agreement is executed by the parties. The effective date of inclusion shall
be the date of the Court Order issued pursuant to Colo. Rev. Stat. §32-1-401 formally including
the Service Property in the District.
32. Assignment and Binding Effect. Subject to rights to assign effluent described in
paragraph 10 above, this Agreement may be assigned by a Landowner only with the written
consent of the District and the remaining Landowners; provided, however, that a Landowner
may assign without consent to a successor in interest to all assets of the original Landowner.
In the event any Landowner desires to assign its rights and obligations herein, whether consent
is required or not, it shall so notify the District in writing, together with the proposed assignee's
written agreement to be bound by the terms and conditions of this Agreement. The District's
obligations under this Agreement may not be assigned without consent of each of the
Landowners. This Agreement shall be binding upon and inure to the benefit of the parties and
their successors, assigns, heirs, devisees, or transferees.
F: \ 1999\Ag reements\S VS D- Development-Agmt-Final-3 . wpd
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33. Several Obligations of Landowners. The obligations of the Landowners under
this Agreement shall be several obligations only, not joint and several. Each Funding
Landowner shall be responsible only for its Funding Amount as described in paragraph 19,
Table B, above, and shall have no further obligation to the District or the other Landowners in
the event of a default by any other Funding Landowner.
34 No Additional Waiver Implied by One Waiver. In the event any covenant or
condition contained in this Agreement is breached by any party and thereafter waived by the
remaining parties, such waiver shall be limited to the particular breach so waived and shall not
be deemed to waive any other breach hereunder, including a subsequent breach of the same
covenant or condition.
35. Non -Applicability to Lot Purchasers. This Agreement establishes the respective
rights and obligations among the Landowners and the District. It is not applicable to purchasers
of individual lots in the Service Property from the Landowners. Such lot purchasers shall be
subject to the Rules and Regulations of the District and to the provisions of the Special District
Act, Colo. Rev. Stat. § 32-1-101, et seq. This Agreement shall not be deemed a cloud, defect,
lien, or encumbrance on the title of any lot created from the Service Property and shall not affect
the marketability of title to such lots.
36. Recordation: Notice to District Users: Covenants. Upon execution, this
Agreement shall be recorded in the Office of Clerk and Recorder, Garfield County, Colorado.
The parties agree and intend that this Agreement, subject to the provisions of paragraph 35
above, shall run with the Service Property and be a burden and covenant on that property.
37. Complete Agreement. This Agreement, together with the Initial Funding
Agreements and that certain Agreement between the District and CMC dated December 15,
1999, attached hereto as Exhibit F and incorporated herein by this reference, constitute the entire
and complete agreement of the parties on the subject matter herein. No promise or undertaking
has been made by any party, and no understanding exists with respect to the transactions
contemplated, except as expressly set forth herein. All prior and contemporaneous negotiations
and understandings between the parties are embodied and merged into this Agreement.
38. Enforceability. If any covenant, term, condition, or provision of this Agreement
shall, for any reason, be held to be invalid or unenforceable, the invalidity or unenforceability
of such covenant, term, condition, or provision shall not affect any other provision contained
herein.
39. Captions. The captions in this Agreement are inserted only for convenience and
in no way define, limit or prescribe the scope or intent of this Agreement, or any part thereof.
40. Governing Law. Laws of the State of Colorado shall govern the validity,
performance, and enforcement of this Agreement. Should either party institute legal suit or
action for enforcement of any obligation contained herein, it is agreed that the venue of such suit
or action shall be in Garfield County, Colorado.
F: \ 1999\A g reements\S V S D -Development -A gmt-Final-3. wpd
-25-
41. Warranty of Authority. Each person executing this Agreement represents and
warrants that he or she has been duly authorized by one of the parties to execute this Agreement
and has the authority to bind said parties to the terms and conditions thereof.
42. Attorney Fees and Costs. In the event that legal action is necessary to enforce the
provisions of this Agreement, the prevailing party shall be entitled to damages and reasonable
attorney fees and costs. All rights concerning remedies and/or attorneys' fees shall survive any
termination of this Agreement.
43. Amendments. This Agreement may be amended from time to time by the parties
in written form and executed in the same manner as this Agreement.
44. Counterparts. This Agreement may be executed in duplicate counterpart
originals, each of which shall constitute an original but all of which shall constitute one and the
same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year
set forth next to their signatures.
EXECUTED IN SEVEN -PART COUNTERPART:
[Signatures on following page]
F:\1999 \ A greements\S V S D-Development-Agmt-Final-3 . wpd
-26-
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_ SPRING VALLEY DEVELOPMENT, INC.
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a W Date .. \ c\ RA By (...\_),a1, -10,-,(...\_),a1,-10,-, -41-)- (F._.e.a.c.a
NW William G. Peacher, President
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111i N M Acknowledged, subscribed, and sworn to before me this day of December, 1999,
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by William G. Peacher as President for Spring Valley Development, Inc.
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WITNESS my hand and official seal.
My commission expires:
Q/A,0
Notary Public
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Secretary y
STATE OF COLORADO )
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COUNTY OF GARFIELD )
SPRING VALLEY SANITATION DISTRICT
Greg S. Boecker, Chairman
Acknowledged, subscribed, and sworn to before me this 078'`"' day of --fes b r / „loot
eg S. Boecker, as Chairman of the Spring Valley Sanitation District and
cc , as Secretary of the Spring Valley Sanitation District.
y hand and official seal.
My Commission expires:
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F:119991Ag regiments\S V S D-Dev e1 opment-Agmt-Final-3 . wpd
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BERKELEY FAMILY LIMITED PARTNERSHIP
Mic • . e Berkeley, General 0
Acknowledged, subscribed, and sworn to before me this a) day of
.6E(Em8E€ , 1999, by Michael Berkeley, as General Partner for Berkeley
Famil • Partnership.
hand and official seal.
ommission expires:
)J18Joa
F: \1999\Agreements\SVSD-Development-Agmt-Finai-3.wpd
-29-
Notary Public
Date
December 15, 1999
STATE OF COLORADO
) ss.
COUNTY OF
By
COLORADO MOUNTAIN JUNIOR
COLLEGE DISTRICT
Dr. Robert H. Spu er, Vice President
Acknowledged, subscribed, and sworn to before me this /5 --el day of
��,,0 , 1999, by Dr. Robert H. Spuhler, Vice President of Colorado
Mountain Junior College District.
WITNESS my hand and official seal.
My Commission expires:
//25/3
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LOS AMIGOS RANCH PARTNERSHIP
By
Thomas E. Neal, Managing Partner
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N ID STATE OF COLORADO )
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r0 Acknowledged, subscribed, and sworn to before me this a-/ day of
• M (' f Li2-e/r , 1999, by Thomas E. Neal, as Managing Partner, for Los
Amigos Ranch Partnership.
WITNESS my hand and official seal.
My Commission expires:
e/9T2.a ity
F: \ 1999\Ag=menu \S V SD-Development-Agmt-Final-3. wpd
-31-
Aug -08-03 02:49P
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COLORADO PINON PINES, LTD.
1/ 22:•"0(-- By
Bernard S. Selwyn
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61 PI STATE OF COLORADO )
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CO N Acknowledged, subscribed, and sworn to before me this 1 day of
CO el
r:63SILtip) ok -,--1-999, by Bernard S. Selwyn, as
for Colorado Pinon Pines, Ltd.
WITNESS my hand and official seal.
My Commission expires:
- )
14: \1999\Aireetnacte\SVSD-Develnpment•Agmt-rinal-3.wpil
-32-
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William Gibson
Pamela Gibson
Acknowledged, subscribed, and sworn to before me this
aCcy\li,a,rte, ,a99339 by William and Pamela Gibson.
WITNESS my hand and official seal.
My Commission expires:
F: \1999 \Agreements\S V S D-Development-Agmt-Final-3 . wpd
-33-
3
day of
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Nota Public
MOO
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m m EXHIBIT A Legal Description of Service Property for Spring Valley
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a c Sanitation District, Garfield County, Colorado (the "Service
ommi m a Property").
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EXHIBIT B Spring Valley Sanitation District Proposed Tertiary Wastewater
nom T. gx
co Treatment Plant and Associated Sewage and Treated Effluent
NEM C9 lo
• .° Collection and Conveyance Facilities (the "Plant").
Nom r.
mow co IP r) EXHIBIT C Spring Valley Sanitation District Schedule of Permits and Tasks
for Construction of Wastewater Treatment Facilities.
EXHIBIT LIST FOR PRE -INCLUSION AND
WASTEWATER TREATMENT PLANT
DEVELOPMENT AGREEMENT
EXHIBIT D Spring Valley Sanitation District Budget for Plant Construction
("Plant Project Budget").
EXHIBIT E Legal Description of Property Owned by Spring Valley
Development, Inc. not within the Spring Valley Sanitation
District Service Property ("35 Acre Property").
EXHIBIT F Agreement between Spring Valley Sanitation District and
Colorado Mountain Junior College District dated December 15,
1999.
F:11999\Ag rccmcnts\S V S D-Dcvclopmcnt-Ag mt-Exhibits-Fmsl. wpd
EXE_BIT A
SPRING VALLEY DEVELOPMENT
A pard of land laczted in Setons 16, 20. 21, 22 27, 28. L9. 32.. 33, and 34. Township 6 Scuth. dance
88 Wes-, Sixth Principal Meridianbeinc more paricuiary described as fellows:
Beginning at the Northwest Comer cf said Section 20,•,being a s=he manument found in pias and
remonumented with a 2 -inch Aluminum Can (P.E.LS. 5933) tiiertS 88°16'08" E 27..1.9 feet along the
north line of said Secton 20 to the North Quotes Comer of said Section 20 being a 1-112 inch Aiurrinum
Cap (LS. 16835) found in plan and rernanumented with a 2 -inch Aluminum Cap (P.E.LS_ 5933); theno
S 88°15'48" E 2625.91 feet along the north fine of said Sedan 20 to the Northeast Comer of said
Secton 20 being a 2-112 inch GLO Brass Cap found in pias: thenC- S 03°43'14" W a disran of 470_0t
feet; thence S 64°00'39' E a diistanc3 of 1240.38 feet: thenN 28°10'43" E a
distance of 1058.36 few'
thence S 62°54'53" E a distance. of 290528 feetthen' S 33°15'31" E 2260.78 feet then' S 33°43'34
E 99323 feet: thence S 674501" W a distant of 38.27 feet then c9 S 33°43'34" E a distance of
2585.68 feet; thenceS 5712'11" E a distance of 1507.60 feet* thence S 25°57'07"E a dislance of
1863.71 feet ; thence S 08°4536" E a distance of 1546.11 feet thence S 00°46'01"W a distance of
425.99 feet thence N 89°14'59' W 2048.85 feet along the south line of said Seddon 27 t Ne South1 Y
Section Quarter Comer of said 27 being a 2-112 inch GLO Brass Cap found in place; then
W 1319.72 feet along the north Gee of said � Seddon 34ection 34 to enortheast bears y 9�1Ttt' W 1319.of the 27'LN�1t: thence S :.
Section/4 of said
34'whence the Northwest Come
00°0558" E 2460.04 feet along the east ?4; thence e of the 189°5 j39 aV�� 138gf said 2�ofeet along the south -line of
carnet of the hN1/2NW114 of sold Secd
the W1/2NW1/4 of said Seddon 34.to the West Quarter Comer of said Section 24 S ng a stone
monument found in place and remonumented with a inch Aluminum Cap (P.
ELS.
• 88°2T45" W 2511.99 feet along the south ouniy Surveyor) found in of the NE1/4 cf said Sedion dtenG' N 88°27'28' W to the Center Quarter of
said Sermon 33 being a 3 inch Aluminum
105252 feet along the south line orw � line o�s 'd Lot 6 to theSedion 33 to e� southeast Amer Loi: 5southwest comer of aai'said then
N 00°19'52' E 821.58 fest aloha theDint an the
Sedan 33; thence N 88°29'25 W 1065.30 feet along the south. line of said Lot 5 to a p
northerly right-of-way of Garneld County Road 119; thence the fallowing seventeen courses along the
northerly right-of-way of said County Road 119:
1. thence along the arc of a non -tangent curve to the left having a radius of 190.00 feet, and a ontraf
angle of 40°11'43" for a distance along the curve of 133.29 feet; the chord of said curve bears N
69°42'36" W a distance of 130.58 feet
2 thence N 89°48'2T W 335.07 feet to a paint on the west line of said Section 33 whence the
Northwest Comer of said Simon 33 being•a 3 -inch County Surveyors Aluminum Cap found in place
bears N 01°14'21" E 1729.72 feet;
3. thence N 89°48'27" W 746.63 feet
4_ thence along the arc of a curve to the right having a radius of 9975.00 feet, and a central angle of •
01°23'23" for a distance along the curve of 241.95 feet; the chord of said curve bears N 8g°06'45" W
a 'distance of 241.94 feet;
5. thence N 88°25'04' W 886.82 feet;
6. thence along the arc of a curve to the right
of 53.26 feet; radius
the 'sora of said curve bears N 3733'26" W
101°431T for a distance along the curve
a distance of 46.54 feet;
7. thence N 13°18" 3" E 1531.48 feet; le of
8. thence along the arc of a curve
ethe c curve of 19fl 67 feet the left having a radius 715.00 chord chi rd offeet, and a said curve bears IN 05°20'37" E a
15°55'12" far a distance along
distance of 198.03 feet to a paint an the south line of said Sean 29 whence the Southeast Comer a
f
said Soman 29 bears S 89°03'23" E 1570.16 feet;
9. thence along the arc of a curve to the left having reradiustofe 715. Offeetsaid curve e. ala n 7le 090of W
229°35'2T far a distance along the curve of363.03
a distance cf 359.14 feet
le of
10. thence along the arc of a curve to the ler having
fee; ther1853.11 feet and a chord of said curve bears central �9�10'49" W
14°68'46" far a distance along the curve of 483.40
a distance of 482.03 feet;
11. thence N 46°39'12" W 512.11 fee;
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12 thence along the arc of a curve to the lett having a radius of 544.29 feet, and a central angle of
29°19'12." for a distance along the curve of 2.78.53 feet the chard of said curve bears N 61°18'49'W
a distance of 275.50 feet;
13_ thence N 75°58'25' W 274.72 feat
14_ thence along the arc of a curve to the right having. a radius of T77.56 feat, and a central angfe of
10°01'45" far a distance along the carve of 136.11 feet the chard of said curve bears N 70°5T32' W
a distance of 135.93 feet;
15_ thence N 65°56'40' W 288.79 feet
16. thence along the arc of a curve to the right having a radius of 934.49 feet, and a cell di angle of
12°43'09" for a distance along the curve of 207.45 feet the chord of said curve bears N 59°35'05"W
a distance of 207.03 feet
17. thence N 53°1310" W 363.38 feet to a paint an the west line of Lot 26 of said Section 29; -
thence N 00°30'2T E 619.90 feet along the west fine of said Lot 26 b the northwest comer of said Lot
•
26; thence N 90°00'00' W 65.41 feet to a fence postwith a pk-nail in the top and accepted as the
southwest comer of Lot 20 of said Section 29; thence N 00°3426" E 2165.03 feet along the accepted
west line of Lots 20, 16, and 8 of said Section 29 to a red plastic cep (P.LS. 27929); thence N 00°32'35'
E 431.30 feet to the southwest comer of a parcel of land described in Book 527, Page 951 in the office of
the Garfield .County Clerk and Recorder; thence along the sautherty boundary.of said parcel of land
: described'in Book 527, Page 951 S 89°32'20" E 431.36 feet them the following two courses along the . .
... Southerly boundary of a parcel af land described in Book 872, Page 768 in the office of the Garfield •
County Clerk and Recorder. • - •
1_ thence S 50°51'48' E 497.50 feet -
2. thence S 57°58'21- E 57.39 feet to a point on the Southerly boundary of a parcel of land described in
*der t •
-
Book 915, Page 112 in the office of the Garfield County Clerk and Reco ,
thence S 57°58'21' E 305.00 feet along the Southerly boundary of said parcel of land described in Book
915, Page 112; thence S 33°33'03' E 149.53 feet along the Souitiwesterty boundary of a parce.I of land
described in Book 621, Page 219 in the office of the Garfield County Clerk and Recorder; thence S
81°36'2T E 135.95 feet along the Southerly boundaries of parcels of land described in Book 621, Page .
219 and Book 965, Page 509 in the office af the Garfield County Clerk and Recorder to a point on the:::
boundary of said panel of land described in Book 965, Page 509;.thence the following three courses
S Pa e 509' .
along the southeasterly boundary of said parcel descnbed in Book 96 , g
1. 'thence S 81°42'23" E 30225 feet
2.. thence N 05°1220' E 149.94 feet
3. thence along the arc Of a curve to the right having a radius of 55.23 feet, and a central angle of
40°33'24' for a distance along the curve of 39.09 feet; the.chord of said curve bears N 25°28'41'.E a
distance of 38.28 feet to a paint on the southerly boundary of a parcel of land described in Book 808,
•
Page 803 in the office of the Garfield County Clerk and Recorder;
thence the following three courses along the easterly boundary of said parcel described in Book 808,
Page 803:
1. .thence S 81°42'37 E 123.19 feet;
2 'thence N 21°0023' W 820.84 feet to a paint on the south fine of said Section 20 whence the South
Quarter Comer of said Section 20 being a stone monument found in place and rernonumented with a
2 -inch Aluminum Cap (P.ELS. 5933) bears N 88°32'13" W 248.98 feet;
3. thence N 21°00'23" W 137.24 feet to a point on the northerly right-of-way of Garfield County Road
115;
thence the following two courses along the northerly right -of- way of said County Road 115:
1. thence along the arc of a non -tangent curve to the right having a radius of 5288.82 feet, and a central
angle of 02°43'04' far a distance along the curve of 250.87 feet; the chard of said curve bears N
73°59'48" W a distance of 250.84 feet
2. thence N 72°38'16" W 1244.87 feet to a point an the accepted east line of Lot 4 of said Section 20
whence the southeast comer of a parcel of land recorded under reception number 467225 in the
office of the Garfield County Clerk and Recorder being a red plastic cap (P.LS. 27613) found in plate
and accepted as a point an the east line of said Lot 4 bears S 01°51'02" W 9.41 feet
thence N 01°51'02" E 490.79 feet along the accepted east line of said Lot 4 to the northeast corner of
said Lot 4 being a stone monument found in place. and remonurnented with a 2 -inch Aluminum Cap
(P.E.LS. 5933); thence N 88°18'52" W 1429.59 feet along the north line of said Lot 4 and Lot 3 of said
•
•
Section 20 to the northwest comer of said Lot 3 whence the Southwest Comer of said Lot 20 being a 2-
1/2 inch Aluminum Cep (P.LS. 27929) found in place bears S 00°0631' E 1008.11 feet thence N
006'31" W 1630.93 feet along the west line of said Section 20 to the West Quarter Comer of said
Section 20 being a stone monument found in place and remonumented with a 2 -inch Aluminum Cap
(P.E._LS. 5933); thence N 00°04'12 E 263288 feet along the west line of said Sectien 20 to the
Northwest Comer of said Section 20 being the POINT OF BEGINNING containing 2897.89 acres more or
fes, prior to the following excepted parcels:
EXCEPTING THE FOLLOWING FOUR PARCELS:
1) MIDDLE EXCEPTION PARCEL LEGAL DESCR1PTTON
A parcel of land located in the West Half of Section 29 and the Northwest Quarter of Section 28,.
Township 6 South, Range 88 West, of the Sixth Principal Meridian, said parcel being further described as
follows: Beginning at a point on the easterty line of said Section 29 whence the Northeast Comer
of Section 29 being a 2-1/2 inch. GLO Brass Cap found in place bears N 01°09'28' E 1250.72 feet thence
S 01°09'28' W 346.32 feet along the east line of said Section 29 to a point on the northerly line of a
parcel of land described in Book 495, Page 596 in the office of the Garfield County Clerk and Recorder,
whence the west Quarter Comer of said Section 28 being a 3 inch Aluminum Cap (County Surveyor)
bears S 01°09'28" E 98724 feet? thence S 88°09'03` E 557.11 feet along the northerly line of said . .. :
parcel of land described in. Book 495, Page 596 to a point on the southerly right-of-way line of Garfield ,
County Road 115; thence along the arc of a curve to the left having a radius of 826.12 feet, and a .central
angle of 17°50'11." for a distance along the curve of 257.17 feet the chord of said curve bears S
64°0708" E a distance of 256.14 feet along the southerly right-of-way of said County Road 115; thence S
73°02'14" E 43.18 feet continuing along the southerly right-of-way line of said County Road 115 to a paint
in the easterly line of said parcel of land described in Book 495, Page 596; thence S 00°01'52' W 114.31
feet along the easterly boundary of said parcel of land described in Book 495, Page 596 to the southeast
corner of said parcel of land described in Book 495, Page 596; thence the following four courses along
the Southerly Boundary of said parcel of land described in Book 495, Page 596:
1. thence N 89°58'08" W 327.05 feed
2 thence S 54°10'41" W 185.54 feet;
3. 'thence N 42°16'19- W 15420 feet
4. thence S 59°30'35" W 216.33.feet to a point on the boundary of a parcel of land described in Book
988, Page 802 in the office of the Garfield County Clerk and Recorder;
thence the fallowing six courses around the easterty, northerly, and southerly boundaries of said parcel of
land described in Book 988, Page 802:
1. thence S 13°45'40" E 111.74 feet;
2. thence S 89°58'08" E 101.60 feet
3. thence S 00°01'52" W 69.06 feet .
4. thence S 88°48'2T E 25.57 feet;
5. thence S 00°3T24- E 148.37 feet;
6. thence S14°45'31- E 57.78 feet;
thence S 58°03'40" W 625.36 feet along the southerly boundaries of parcels of land described in Book
988, Page 802 and Book 736, Page 345 in the office of the Garfield County Clerk and Recorder to a paint
on the southerly boundary of said parcel of land described in Book 736, Page 345; thence along the
southerly and westerly boundaries of said parcel of land described in Book 736, Page 345 the following
five courses:
1'. thence N 74°53'28" W 35.87 feet;
2. thence N 66°59'35" W 380.19 feet
3. thence N 50°53'55" W 27.02 feet
4. thence N 25°54'08" W 19.09 feet;
5. thence N 05°08'09" W 580.16 feet to a point an the westerly boundary of a parcel of land described
in Book 886, Page 329 in the office of the Garfield County Clerk and Recorder,
thence along the westerly and northerly boundaries of said parcel of land described in Book 886, Page
329 the following three courses:
1. thence N 05°36'42" W 538.91 feet
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2_ thence N 04°18'35" W 374.95 feet _ _ xi o\°
3_ theno. N 82°52'22" E 323.76 feet to a paint on the southerly right-of-way line of said Garfield County W m.........
Road 115; "�
thence along the said right-of-way line the following three courses: t9 m M..
1. thence along the arc of a non-tangent curve to the left having a radius of 993.47 feet, and a central o mNEM
angle of 03°01'08" for a disthnce along the curve of 52.35 fee* the chord of said curve bears S w!
34°41'10- E a distance of 52.34 feet; c9•:-.031.....m.
2. then c along the arc of a curie to the left having a radius of 480.00 feet, and a central angle of
36°06'40" for a dis nce along the curie of 302.52 feet; the chard of said curve bears 5 54°15'04" E a XI ...
distance of 297.54 feet; "'I
3_ thence S 72°18'24- E 273.90 feet to the POINT OF BEGINNING containing 33.499 acres more or or ��
less_ to um.
2) EAST EXCEPTION PARCEL LEGAL DESCRIPTION 0 s
z a�
A parcel of land located in Lots 5, 10, and 15 of Section 28, Section 28, and Section 33, Township 6--1c
South, Range 88 West, of the Sixth Principal Meridian being more particularly described0 o"_
as follows: Beginning at the South Quarter Comer of said Section 28 being a stone monument found in 0 �MUM
place and rernonumented with a 2-inch Aluminum Cap (P.ELS. 5933); thence N 88°33'15" W 60.85 feet NE=
along the south line of Section 28 said line also being the south line of said Lot 15 to a paint on the
southerly line of a parcel' of land described in a document recorded as Reception number 344061- in the
office of the Garfield County Cleric and Recorder; thence S 89°35'14" W 967.56 feet along the southerly..
line of said parcel described in said document recorded as Reception number 344061 to a number 5
rebar found in place; thence N 00°56'44- W 31.41 feet along the westerty Fine of said parcel of
land described in said document recorded as Reception number 34-4061 to the south line of said Section •
28 and said Lot 15; thence N 88°33'15" W 55.02 feet along the south line of said Section 28 and said Lot __
15 to the Southwest Comer of Lot 15; thence N 01°00'28" E 1612.97 feet along the westerly line of said
government lots 10 and 15 to a paint an the westerly line of said parcel of land described in said
document recorded as Reception number 344061; thence N 00°56'44- W 10.40 feet along the westerly
line of a parcel of land described in said document recorded as Reception number 344061 to a yellow
plastic cap stamped P.LS # 15710; thence N 00°56'44" W 729.41 feet along the westerty line of a parcel
of land described in said document recorded •as Reception number 344061 to a red plastic cap stamped
P.LS # 5447; thence N 00°24'55" W 918.45.feet along the westerly'l'ine of a parcel of land described in
document recorded as Reception number 475590 to a red plastic cap stamped P.LS # 5447; thence N
00°24'55" W 9.63 feet to the southerly right-of-way line of Garfield County road 115; thence along the
southerly right-of-way line of said County road 115 the following seven (7) courses:
1. thence along the arc of a curve to the right having a radius of 594.56 feet, and a central angle
of 47°01'08" for a distance along the curve of 487.92 feet the chord of said curve bears S
45°41'32" E a distance of 474.34 feet; - •
2.. thence 5.22°10'58" E 307.62 feet;
3. thence along the arc of a curve to the left having a radius of 1421.75 feet, and a central angle
of 15°49'5T for a distance along the curve of 392.87 feet; the chord of said curve bears S
30°05'57" E a distance of 391.63 feet;
4. thence along the arc of a curve to the right having a radius of 370.00 feet, and a central angle
of 32°43'14" for a distance along the curve of 211.30 feet; the chord of said curve bears S
21°39'19" Ea distance of 208.44 feet;
5. thence along the arc of a curve to the left having a radius of 2437.42 feet, and a central angle
of 28°42'24" for a distance along the curie of 1221.22 feet the chord of said curve bears S
19°38'54- E a distance of 1208.48 feet;
6. thence S 34°00'06" E 1152.91 feet;
7. thence along the arc of a curve to the left having a radius of 430.00 feet, and a central angle
of 23°03'17" for a distance along the curve of 173.02 feet the chord of said curve bears S
45°31'45" E a distance of 171.86 feet to a point on the south line of said Section 28;
thence N 86°11'17" W 829.99 feet along the south line of said Section 28 to the Paint of Beginning said
point also being said South Quarter Comer of said Section 28 containing 69.250 acres more or less.
3) GARFIELD COUNTY ROAD 115 EKCEPTiON PARCEL LEGAL DESCRIPTION
A parcel of land located in Sections 20, 29, 28, 33, and 34, Township 6 South, Range 88 West, of the
Sixth Principal Meridian, said parcel being a 60 foot wide right-of-way extending thirty feet an each side
of the following described centerline for Garfield County Road 115, said centerline being further
described as follows: Beginning at a paint from whence the Southwest comer of said Section 20
bears S89°59'26"W a disthnce of 2853.70 feet, said seccon comer being a 2-112 inch Aluminum Cap
found in place; thence along the arc of a curve to the left having a radius of 5318.82 feet, and a
central angle of 04°16'52" for a distance. along the curve of 397.42 feet the chord of said curve bears S
77°43'40' E a distance of 397.32 feet; thence S 79°52'05" E 121.04 feet to a paint along the section line
common to said Sections 20 and 29 from whence the Quarter comer common to said Sections 20 and
29 being a Stone Monument found in place and rernonumented with a 2 -inch Aluminum Cap bears
N88°3213'W 720.55 fees; thence S 79°52'05' E 331.86 feet thence along the arc of a curve to the right
having a radius of 900.00 feet, and a central angle of 20°29'08" for a distance along the curve of 321.79
feet; the chard of said curve bears S 69°3T31" E a distance of 320.08 feet thence S 59°22'57' E 217.30
feet; thence along the arc of a curve to the right having a radius of 1081.34 feet, and a central angle of
35°38'00' for a distance along the curve of 672.50 feet the chord'of said curve bears S 41°33'57" E a
distance of 661.72 feet; thence S 23°44'57' E 73.66 feet; thence along the arc of a curve to the left
having a radius of 963.47 feet, and a central angle of 12°26'4T for a distance along the curve of 209.29
feet; thechord of said curve bears S 29°58'21" E a distance of 208.88 feet thence along the arc of a
curve to the left having a radius of 450.00 feet, and a central angle of 36°06'40' for a distance eking the
curve of 283.62 feet; the chard of said curve bears S 54°15'04' E a distance of 278.95 feet thence S
72°18'24' E 264.99 feet to a point along the section line common to said Sections 28 and 29 from
whence the Northeast comer of said Section 29 being a 2-1/2 inch GLO Brass Cap found in place bears
N01°09'28'E 1219.42 feet thence S 72°18'24" E 167.61 feet; thence along the arc of a curve to the right
having a radius of 377.41 feet, and a central angle of 25°33'14" for a distance along the curve of 168.32
feet; the chard of said curve bears S 59°31'47" E a distance of 166.93 feet; thence S 46°45'10" E 235.64
feet thence along the arc of a curve to the left having a radius of 796.12 feet, and a central angle of
26°1T03" for a distance along the curve of 365.22 feet; the chord of said curve bears S 59°53'42" E a
distance of 362.02 feet; thence 5 73°02'14" E 636.67 feet thence along the arc of a curve to the right
having a radius of 624.56 feet, and a central angle of 50°51'15" for a distance along the curve of 554.35
feet the chord of said curve bears S 47°36'36" E a distance of 536.33 feet; thence S 22°10'58' E 307.62
feet thence along the arc of a curve to the left having a radius of 1391.75 feet, and a central angle of
15°49'57" for a distance along the curve of 384.58 feet the chord of said curve bears S 30°05'57" E a
distance of 383.36 feet thence along the arc of a curve to the right having a radius of 400.00 feet, and a
central angle of 32°43'14" fora distance along the curve of 228.43 feet the chord of said curve bears S
21°39'19' E a distance of 225.34 feet thence along the arc of a curve to the left having a radius of
2407.42 feet, and a central angle of 28°42'24' fora distance along the curve of 1206.18 feet; the chord of
said curve bears S 19°38'54" E a distance of 1193.61 feet thence S 34°00'06" E 1152.91 feet; thence
along the arc of a curve to the left having a radius of 400.00 feet, and a central angle of 25°53'11" for a
distance along the curve of 180.72 feet; the chard of said curve bears S 46°56'42" E a distance of 179.19
feet thence S 59°53'17" E 38.40 feet to a paint along the section line common to said Sections 28 and
33 from whence the Quarter comer common to said Sections 28 and 33 being a Stone Monument found
in place and remonumented with a 2 -inch Aluminum Cap bears N86°11'1TW 896.52 feet; thence S
59°53'1T E 421.00 feet; thence along the arc of a curve to the right having a radius of 779.79 feet, and a
central angle of 35°42'49" for a distance along the curve of 486.06 feet the chord of said curve bears S
42°01'52" E a distance of 478.23 feet; thence S 24°10'27" E 644.62 feet; thence along the arc of a curve
to the right having a radius of 882.82 feet, and a central angle of 26°58'38" for a distance along the curve
of 415.67 feet; the chord of said curve bears S 10°41'09" E a distance of 411.84 feet; thence S 02°48'10'
W 238.01 feet; thence along the arc of a curve to the left having a radius of 729.53 feet, and a central
angle of 37°41'54" for a distance along the curve of 480.00 feet; the chord of said curve bears S
16°02'47" E a distance of 471.39 feet; thence along the arc of a curve to the left having a radius of 200.00
feet, and a central angle of 53°3T43" for a distance along the curve of 187.20 feet; the chord of said
curve bears S 61°42'35" E a distance of 180.44 feet; thence along the arc of a curve to the left having a
radius of 2171.07 feet, and a central angle of 08°19'31" for a distance along the curve of 315.47 feet; the
chord of said curve bears N 87°18'48" E a distance of 315.19 feet to a point along the section line
5
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common to said Sermons 33 and 34 from whence the Northeast comer of said Section 33 being a 2-1I2
inch GLO Brass Cap found in place bears N01°30'32"E 2209.86 feet thence along the arc of a curie to
the left having a radius of 2171.07 feet, and a central angle of 15°20'11` for a distance along the carve of
581.13 feet; the chard of said curie bears N 75'28'57" E a distance of 579.40 feet; thence along the arc
of a curve to the right having.a radius of 280.00 feet, and a central angle of 55°26'50' for a disistz-inalong
the curve of 270.97 feet the chord of said curve bears S 84°2T44' E a dis`ence of 260.52 feet then c S
56°44'19' E 393.81 feet; thence. along the arc of a curve to the left having a radius of 669.07 feet, and a
central angle of 21°3921' for a distance along the curve of 25289 feet; the chord cf said curve bears S
6734'00' E a distance of 251.38 feet from whence the said Northeast comer of Section 33 bears
N28°52'13"W 2741.66 feet; Such parcel being a 60 foot right-af-way (30 feet on each side of the above
described centerline) contains 18.195 acres mare or IPss_ The right-of-way fines of said right-of-way shall
be prolonged or shortened to begin and end on and conform to the property boundary lines.
4) GARFIELD COUNTY ROAD 114 EXCEPTION PARCEL LEGAL DESCRIPTION
A parcel of land located in the Northeast Quarter of Section 33, Township 6 South, Range 88 West, of the
Sixth Principal Meridian, said parcel being the right-of-way for Garfield County Road 114 and the
intersection of Garfield County Road 114 with Garfield County Road 115, said parcel being further
described as follows: Beginning at a paint on the southern line of the Northeast Quarter of said Section
33 whence the East Quarter Comer for said Section 33 being a Stone Monument. found in place and
remonurnented with a 2 -inch Aluminum Cap bears S 88°2T45" E 551.40 feet said paint also being a
paint an the easterly right-of-way of Garfeld County Road 114; thence N 88°2T45" W 77.11feet along
said southern line of the Northeast Quarter to a paint on the westerly boundary of said County Road114,
whence the Center Quarter for said Section 33 being a 2 -1/2 -inch Aluminum Cap found in place bears N
88°2T45" W 1883.48; thence the following two courses along the westerly right-of-way of said County
Road 114: .. . .. ._.. _
1. • N 40°27'03" E 99.05 feet;
2. thence along the arc of a curve to the left having a radius of 270.00 feet, and a central angle of
69°20'35" for a distance along the curve of 326.77 feet; the chord of said curve bears N 05°46'46' E a
distance of 307.19 feet to a point an the sautherty right- of -way of Garfield County Road 115;
thence the following three courses along the southern right-of-way of County Road 115:
•
1.along the arc of a non -tangent curve to the left having a radius of 759.53 feet, and a central angle of
06°00'12' far a distance along the curve of 79.58 feet the chord of said curve bears S 31°53'38" E a
distance of 79.55 feet;
2_ thence along the arc of a curve to the left having a radius of 230.00 feet, and a central angle of
53°3T43" for a distance along the curve of 215.28 feet the chord of said curie bears S 61°42'35" E a
diot.dnce of 207.51 feet;
3. thence along the arc of a curve to the left having a radius of 2201.07 feet, and a central angle of
- 03°41'58" for a distance along the curve of 142.12 feet; the chard of said curve bears N.89°37'34- E a•
distance of 14209 feet to a paint an the easterly right-of-way of Garfield County Road 114;
thence the following two courses along the easterly right-of-way of County Road 114:
1. along the arc of a non -tangent curve to the left having a radius of 470.00 feet, and a central angle of
47°19'32' for a distance along the curve of 388.21 feet; the chard of said curve bears S 64°06'49' W
a distance of 377.27 feet
2. thence S 40°27'03" W 70.18 feet to the paint of beginning containing 0.755 acres more or less.
The right-of-way lines of said right-of-way shall be prolonged or shortened to begin and end on and
conform to the property boundary lines.
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EXHIBIT A - BERKELEY
Township 6 South, Range 88 West of the 6th P.M.
Section 32: Lots 5 and 6 •
Section 33: Lots 7 through 17 inclusive, Lot 20 through 23, inclusive, an
NEY4SEV4
Section 34: SW V4 SW Ya
Township 7 South, Range 88 West of the 6th P.M.
Section 4: Lots 2, 3 and 9. °
EXCEPTING therefrom that parcel of land described on Deed recorded as
Reception No. 419600 in Book 795 at Page 72 of the Garfield County records.
AND EXCEPTING therefrom the above, those portions conveyed to the Board of
County Commissioners of Garfield County for road purposes by documents
recorded June 3, 1929, in Book 159 at Page 85 as Reception No. 104496 and in
Book 159 at Page 87 as Reception No. 104498.
TOGETHER WITH a parcel of land situated in the NE1/4 of Section 4, Township
7 South, Range 88 West of the Sixth Principal Meridian, County of Garfield, State
of Colorado; said parcel being more particularly described as follows:
Commencing at the Northeast Comer of said Section 4, a BLM Aluminum Cap in
place, the True Point of Beginning; thence S 16°39'55" W 217.38 feet; thence
S 27°00'32" W 277.20 feet; thence S 48°11'02" W 452.97 feet; thence
N 89°49'27" W 293.53 feet; thence along the arc of a curve to the right having a
radius of 200.00 feet and a central angle of 54°03'51", a distance of 188.72 feet
(chord bears N 62°47'31" W 181.80 feet); thence N 35°45'36" W 8.96 feet; thence
along the arc of a non -tangent curve to the right having a radius of 330.00 feet
and a central angle of 17°32'14", a distance of 101.01 feet (chord bears
S 57°47'34" W 100.61 feet); thence S 10°53'01" E 108.00 feet; thence
N 89°49'27" W 293.31 feet to a point on the Southerly boundary of that property
described in Reception No. 462134 of the Garfield County Clerk and Recorder's
Office; thence N 00° 11'22" E along said Southerl boundary 337.83 feet; thence
continuing along said Southerly boundary N 89°51'49" E 217.99 feet; thence
continuing along said Southerly boundary N 00°16'49" W 489.87 feet; thence
continuing along said Southerly boundary S 89°49'20" E 1127.60 feet to the True
Point of Beginning;
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EXHIBIT A -„,BERKELEY
A parcel of land situated in Section 33, Township 6 South, range 88 West of the
Sixth Principal Meridian, and Section 4, Township 7 South, range 88 West of the.
Sixth Principal Meridian, County of Garfield, State of Colorado,being more.
particularly described as follows:
Beginning at the South 1/4 corner of said Section 33; thence S. 68°50'25” E. 222.96
feet; thence.N. 72°30'00" E. 300.00 feet; thence N. 35°00'00" E. 500.00 feet; thence
S. 17°30'00" E. 1850.00 feet to the southeast•comeroftheNW1/4NE1/4 of said Section
4; thence N. 89°49'27" W. along the south line of said NW1/4NE1/4133 0.86 feet to the
southwest comer of said NWY4NE1/4; thence N. 00°16'06" W. along the west line of
said NW1/4NE1/4 1341.00 feet to the South 1/4 comer of said Section 33, the point of
beginning Said parcel contains 36.20 acres, more or less;
•
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EXHIBIT A
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A PARCEL OF LAND SITUATED IN THE SE1/4SE1/4 OF SECTION 32; SW1/4SW1/4 OF 0 m...
SECTION 33, TOWNSHIP. 6 SOUTH,RANGE 88 WEST OF THE SIXTH PRINCIPAL " - •0 3C
MERIDIAN, THE NE1/4SW1/4, S1/2NE1/4, NW1/4SE1/4, AND LOTS 1, 4, 5, 6,,7, 8;10; . Elmo
•AND 11, SECTION 4, EI/2 AND LOT 11 SECTION 5, LOTS 3, 4, AND 8,: SECTION 8, LOTS �+
4, 5, 6, AND 7, SECTION 9, ALL IN TOWNSHIP7 SOUTH, RANGE 88 WEST OF THE • mooNom
SIXTH PRINCIPAL MERIDIAN; SAID PARCEL BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
(THIS DESCRIPTION IS BASED ON DOCUMENTS OF RECORD•AND DOES NOT
REPRESENT AN ACTUAL BOUNDARY SURVEY BY HIGH COUNTRY ENGINEERING,.
INC. NOR DOES IT REPRESENT A TITLE SEARCH) •
PROPERTY DESCRIPTION
PARCEL A
COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 4 TOWNSHIP 7
SOUTH RANGE 88 WEST OF THE SIXTH PRINCIPAL: MERIDIAN; THENCE •
S 33°20'30" W 995.70 FEET;TO THE NORTHEASTERLY CORNER OF. THAT PARCEL
DESCRIBED IN BOOK. 500, AT PAGE 930, THE POINT OF BEGINNING; THENCE
ALONG THE EASTERLY LINE OF THAT PARCEL DESCRIBED IN BOOK.500,'AT PAGE
930, S 00°3025" E 1860.34 FEET. TO THE SOUTHEASTERLY CORNER OF THAT
PARCEL. DESCRIBED IN BOOK 500, AT PAGE 930; THENCE N 89°51'39 W ALONG
THE SOUTHERLY LINE OF THAT:PARCEL DESCRIBED IN BOOK 500, AT PAGE 930,
.938.17 FEET TO A POINT ON THE NORTHEASTERLY CORNER &THAT PARCEL
DESCRIBED IN BOOK 396 AT PAGE 36; THENCE LEAVING SAID SOUTHERLY LINE •
• S 00°30'30", E. ALONG THE EASTERLY LINE OF THAT PARCEL DESCRIBED IN BOOK
396 AT PAGE 36 1264.90.FEET, TO THE SOUTHEASTERLY OF THAT PARCEL •
. DESCRIBED IN BOOK 396 AT PAGE 36; THENCE S 89°49'00" W ALONG THE .
SOUTHERLY LINE OF THAT PARCEL DESCRIBED IN BOOK 396 AT PAGE 36 1220.09
FEET, TO THE NORTHEASTERLY CORNER OF THAT PARCEL DESCRIBED IN BOOK .
474 AT PAGE 583; THENCE.S 00°52'05 E ALONG THE EASTERLY LINE OF THAT
PARCEL DESCRIBEDIN BOOK 474 AT PAGE 583, 1263.08 FEET, TO THE.
NORTHEASTERLY CORNER OF THAT PARCEL DESCRIBED IN BOOK 488 AT PAGE
920; THENCE S 00°38'41" W ALONG THE EASTERLY LINE OF THAT PARCEL
PAGE 1
923 COOPER AVENUE • GLENWOOD SPRINGS, COLORADO 81601
Telephone (970) 945-8676 • Fax (970) 945-2555
' 111111 11111 111111 IIIII 11111 1111 111111 111 111111 III 11I1
X87475 08/30/2001 03.01P B1282 P51 M ALSDORF
44 of 66 R 330.00 D 0.00 GARFIELD COUNTY CO
DESCRIBED IN BOOK 488 AT PAGE 920, 2198.27 FEET, TO THE SOUTHWESTERLY
CORNER OF THAT PARCEL DESCRIBED IN BOOK 488 AT PAGE 920; THENCE ALONG
THE SOUTHERLY LINE OF THAT PARCEL DESCRIBED IN BOOK 488 AT PAGE 920,
THE FOLLOWING SEVEN (7) COURSES:
1. S 88°42'41" W 361..02 FEET.
2 N. 00°00'00". W 317.99 FEET
3. S 69°57'00" W 988.46 FEET
4.: •S 88°42'41" W 1601.1.6 FEET
5. S 88°46'1.0".W1245..83 FEET
6: N .00°05.'49 W.1319.90 FEET
7_ ' . S 88°43'38" W 361.09 FEET, .TO A POINT ON THE.EASTERLY LLNE OF
THAT PARCEL DESCRIBED .IN BOOK 1105 AT PAGE.980; THENCE ALONG THE.
. EASTERLY LINE.OF THAT: PARCEL DESCRIBED IN BOOK 1105' AT PAGE 980,. THE •
. FOLLOWING SEVEN (7) COURSES:
1 ALONG:THE. ARC OF A CURVE TO THE LEFT HAVING'.A RADIUS OF
830.00 FEET AND A CENTRAL ANGLE OF 03°33'35" A DISTANC E OF
51,57 FEET.(CHORD.BEARS N 19°17'25" E 51:56.FEET)
2 N 17°30'37" E 157.95 FEET
3 ALONG°THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
3636.48 FEET AND ACENTRAL ANGLE OF 03°06'15 A DISTANCE OF
198.32 FEET (CHORDBEARS.N 1.9°03'46".E 19829 FEET)
4 N 20°36'53" W 271:04 FEET : ` : ' `
5 ALONG. THE ARC ;OF A'-NONTANGENT CURVE TO THE RIGHT HAVING
A RADIUS OF 1086.84 FEET AND A CENTRAL ANGLE OF ' 11'° 15'00" .k... .
DISTANCE OF 213.40 FEET (CHORD BEARS N 25°37'03" E 213 06.FEET)
6 N 3.1°14'33"...W763.78 FEET:... :.. < . .:..::., ;.
7. .N 57°53'00" W.28.37 FEET,. TO A POINT. ON THE WESTERLY LINE OF
THAT PARCEL DESCRIBED IN B.00K.488'AT PAGE 920; THENCE ALONG. THE.
WESTERLY LINE OF THAT. PARCEL DESCRIBED IN BOOK 488 AT PAGE 920, THE
FOLLOWING FOUR'(4) COURSES:
' . ' 1.. • N 32`07'00" E.150.31 FEET
2. ..N 43°58'38" E 132.65 FEET.
-3. N 64°10'20" E.392.30 FEET
4., . N 72°07'36" E 362.63FEET, TO THE SOUTHWESTERLY CORNER OF
THAT QUITCLAIM DEED DATED AUGUST 14, 1997 FROM LOS AMIGOS RANCH
PARTNERSHIP, A COLORADO GENERAL PARTNERSHIP, TO COLORADO MOUNTAIN
JUNIOR COLLEGE DISTRICT,'A STATUARY JUNIOR COLLEGE DISTRICT; THENCE
PAGE 2
1111111 11111 IIiIii iiiii liIII an l'Liii
587 of 66 00 D0/2001 30 00 GARFIELD:01P B1282 2COUNTY CO
45
N 00°11'28" W ALONG THE WESTERLY LINE OF THAT QUITCLAIM DEED DATED
AUGUST 14, 1997 FROM LOS AMIGOS RANCH PARTNERSHIP, A COLORADO
GENERAL PARTNERSHIP, TO COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT,
A STATUARY JUNIOR COLLEGE DISTRICT 517.38 FEET; THENCE N 64°04'19" E
ALONG THE NORTHERLY LINE OF THAT QUITCLAIM DEED DATED AUGUST 14,
1997 FROM LOS AMIGOS RANCH PARTNERSHIP, ACOLORADO GENERAL
PARTNERSHIP, TO COLORADO MOUNTAIN JUNIOR. COLLEGE DISTRICT, A
STATUARY JUNIOR COLLEGE DISTRICT 55.12 FEET, TO A POINT ON THE
WESTERLY LINE OF THAT PARCEL DESCRIBED IN BOOK 399 AT PAGE 265; THENCE
- N 00°12'00" W ALONG THE WESTERLY LINE OF THAT PARCEL:DESCRIBED IN BOOK
399 AT PAGE 265, 4501.86 FEET; THENCE S 89°58'54" E ALONG THE NORTHERLY
:LINE OF THAT PARCEL DESCRIBED IN BOOK 399 AT PAGE 265, 201.02 FEET; :
THENCE CONTINUING ALONG THE NORTHERLY LINE S 89°54'5;1"-E OF THAT
PARCEL DESCRIBED IN BOOK 399 AT PAGE 265;. 1.77.38' FEET,. THENCE S 00°07'35"`E
"ALONG THE EASTERLY LINE. OF THAT PARCEL DESCRIBED IN BOOK 399 AT PAGE
265,830.32 FEET, TO A POINT ON THE NORTHERLY LINE OF THAT PARCEL
DESCRIBED IN BOOK 396 AT PAGE 39; THENCE S 89°45'40" E ALONG THE
NORTHERLY LINE OF THAT PARCEL DESCRIBED IN BOOK 396: AT: PAGE 39,.2528.08
FEET,TO THE NORTHEASTERLY CORNER OF SAID PARCEL; THENCE S 00°29'34"..E
ALONG THE EASTERLY LINE OF THAT PARCEL DESCRIBED IN BOOK396 AT PAGE
39,-I353.48 FEET, TO THE NORTHWESTERLY CORNER OF THAT PARCEL .
•
DESCRIBED IN BOOK 500 AT PAGE 930; THENCE ALONG THE.NORTHERL••Y LINE. OF
THAT -PARCEL DESCRIBED IN BOOK 500 AT PAGE 930,. THE FOLLOWING THREE (3)
COURSES:
-1. S 89°58'00" E 1343.3.0 FEET
;'2.... - N 00°35'00".W 514.40 FEET
• 3. ' S 89°58'00" E 785.70 FEET;TO POINT OF BEGINNING; SAID PARCEL
CONTAINING 701.725 ACRES MORE OR LESS,
PAGE 3
K:1 WP\9T0981CMCB.DES
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EXHIBIT A
CNC
PROPERTY DESCRIPTION
PARCEL B
A PARCEL OF LAND SITUATED IN THE SOUTHWEST ONE QUARTER OF SECTION -
34, TOWNSHIP 7 SOUTH, RANGE 88 WEST OF THE SIXTH PRINCIPAL MERIDIAN;
SAID PARCEL BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
(THIS DESCRIPTION IS BASED ON DOCUMENTS OF RECORD AND DOES NOT
REPRESENT AN ACTUAL BOUNDARY SURVEY BY HIGH COUNTRY ENGINEERING,
INC. NOR DOES IT REPRESENT A TITLE SEARCH)
COMMENCING AT THE W1/4 OF SAID SECTION 34; THENCE. S 89°57'00" E ALONG
THE NORTHERLY LINE OF -SW1/4.OF SECTION 34, TOWNSHIP 7 SOUTH, RANGE 88.
WEST OF THE SIXTH PRINCIPAL MERIDIAN 201.94 FEET, TO THE POINT OF
BEGINNING; THENCE CONTINUING:ALONG SAID NORTHERLY LINES 89°57'00°.E
2479.45 FEET TO THE W1/16 OF SAID SECTION 34;.THENCE S.04°07'00" E ALONG THE..
EASTERLY LINE OF SAID SW1/4 2385.35 FEET, TO THE .SW1/16 OF SAID.SECTION 34;
THENCE S 88°11'37": W.ALONG:THE SOUTHERLY LINE. OF SAID SWI/4 1700.46. FEET;
THENCE LEAVING SAID SOUTHERLY LINE N 02°50'09" W 1220.49 FEET; -INCE
S 89°02'17." W 807.16.FEET; THENCE N 03°53'31" W 1232.36 FEET TO THE POINT OF .
BEGINNING; SAID PARCEL CON.TAINING.115.579 ACRES MORE ORLESS.
K\WP\97\098\CMCB.DES
923 COOPER AVENUE • GLENW000 SPRINGS, COLORADO 81601
Telephone (970) 945-8676 • Fax (970) 945-2555
EXHIBIT A
LOS AMIGOS RANCH PUD
Township 6 South, Rance 88 West of the 6th P.M.
Section 31 :SE'/4 and Lot 2
Section 32:S1/2SW'/4, Lot 7 and SEY4SE'/4
Section 33:Lots 18 and 19
Township 7 South, Range 88 West of the 6th P.M.
Section 5:Lots 3, 4, 5, 6, 7, 11 and the easterly one-half of Lot 10, NE3/4SW'/4,
NW Y SEY4, SE'/4 NW'/4 and NE'/4
Section 6:Lots 2, 3, 4, 5, 6, 7, SW'/4 NE'/4 , and NW'/4 SE'/4
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Township 6 South, Range 89 West of the 6th P.M.
Section 35:Lots 1, 2, 10 and 16
Section 36:SE'/4, NY2SW'/4, NE'/4, NW 'A and Lots 1 and 2
EXCEPTING from the above described property the parcels of land as -
follows: (1) William E. Poster and Bruce Dixson by deed recorded in Book 374 at Page 480;
(2) Colorado Mountain Junior College District by deeds recorded in Book 381 at Page 537 and
Book 399 at Page 265; (3) Board of County Commissioners of Garfield County, Colorado, by
deed recorded in Book 409 at Page 220; (4) All that portion of Lot 2, Section 6, Township
7 South, Range 88 West of the 6th P.M. lying Southwesterly of the Southeasterly right-of-
way line of a county road known as the "college road".
Together with any and all water, water rights, water structures, ditches, laterals, wells, and
other water and water facilities of every kind and nature, without limitation, appurtenant
thereto, PROVIDED, HOWEVER, that the said conveyance of water rights is without any
warrants of title whatsoever.
Parcel 1: That part of T. 7 S., R. 88 W. of the 6th P.M., being all of Lot 9 and the Westerly
one-half of Lot 10 of Sec. 5, all of Lot 5 of Sec. 8 and that part of Lot 4 of Sec. 8, lying
Westerly of the Westerly right-of-way line of a county road as constructed and in place, the
Westerly right-of-way line of said road being described as follows: Beginning at a point on the
Southerly line of said Lot 4, said point being on the Westerly right-of-way line of said county
road, whence the NE Comer of said Sec. 8 bears: N. 60°03'34" E. 1933.73 feet; thence
N. 03°12'18" E. 242.69 feet along the Westerly right-of-way line of said county road; thence
N. 14°58'08" E. 144.01 feet along the Westerly right-of-way line of said county road; thence
N. 52°07' E. 691 .57 feet along the Westerly right-of-way line of said county road to a point
on the Northerly line of said Lot 4. EXCEPT the Westerly 1024 feet of said Lot 5, Sec. 8 and
said Lot 9, Sec. 5.
Parcel 2: Lot 8 of Section 5, Lots 8 and 9 of Sec. 6, Lots 10 and 11 of Sec. 7 and Lot 6 of
Sec. 8, T. 7 S., R. 88 W. of the 6th P.M. EXCEPT all that part thereof heretofore conveyed
by deeds recorded as Document No. 249250 in Book 418 at Page 1; Document No. 248001
in Book 409 at Page 220; and
The Westerly 1024 feet of Lot Five (5), Section Eight (8), and Lot Nine (9), Section Five (5),
MEM
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N, Township 7 South, Range 88 West of the 6th P.M.; and
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A tract of land in the SW 3/4 SEY4 of Section 32, Township 6 South, Range 88 West of the 6th
,in
o Principal Meridian, being more particularly described as follows: Beginning at a Garfield
NJW County Surveyor brass cap in place and properly marked for the center quarter corner of said
Nu. Section 32, thence S. 89°00'23" E. 1314.62 feet along the north line of the NW'/ of the
;; SE 3/4 of said Section 32; thence S. 01°48'29" W. 2465.40 feet along the east line of the
a a W1/2 SE'/4 of said Section 32 to the true point of beginning; thence continuing
m S. 01°48'29" W. 136.26 feet along the east line of the SW Y4 SE'/4 of said Section 32 to the
memm o SE corner of the SWY4SE3/4 of said Section 32; thence N. 39°43'26" W. 6.18 feet along the
.- m south line of the SW Y4 SE 3/4 of Section 32 to a fence line as built and in place; thence
N m N. 04°24'02" E. 136.56 feet along said fence line to the true point of beginning, containing
m M 0.010 acres more or less; and
ce
ter)
.�.m to A parcel of land situate in the South half of Section 32, Township 6 South, Range 88 West
w of the 6th Principal Meridian, being more particularly described as follows: Beginning at the
�r- ° South quarter corner of said' Section 32; thence along the east line of the SW3/4 of said
co
er Section 32, N. 02°22'30" E. 1309.47 feet to the NE corner of the SEY4SW Y of said Section
32; thence along the north line of the SEY2SWY4 of said Section 32, N. 88°54'34" W.
2560.91 feet to the northwest corner of the SW Y4 SW'/4 of said Section 32; thence along the
west line of the SW'/4 of said Section 32, N. 03°10'51" E. 7.36 feet to a point on a fence
line as built and in place; thence along said fence line N. 89°43'23" E. a distance of 2725.52
feet to a fence corner; thence S. 09°03'54" W. 1395.04 feet along said fence line to the
point of beginning, containing 4.796 acres, more or less.
Together with a tract of land described in Document recorded as Rec. No. 512958 in Book
1031 at Page 798.
EXCEPTING FROM THE ABOVE those parcels of land described in document recorded as
Reception No. 334675 iri Book 613 at Page 566.
ALSO EXCEPTING Resubdivision of Los Amigos Ranch Filing No. 1, County of Garfield,
State of Colorado, according to the plat thereof recorded 25 February 1983 as
Rec. No. 344098.
ALSO EXCEPTING Los Amigos Ranch Subdivision No. 2, Filing No. 1, County of
Garfield, State of Colorado, according the plat thereof recorded 10 July 1984,
as Rec. No. 353877.
ALSO EXCEPTING Los Amigos Ranch Subdivision No. 2, Filing No. 2, County of
Garfield, State of Colorado, according to the plat thereof recorded 10 November
1992, as Rec. No. 441028.
ALSO EXCEPTING Los Amigos Ranch Subdivision No. 2, Filings 3 and 4, County of
Garfield, State of Colorado, according to the plat thereof recorded 16 May
1994, as Rec. No. 463201.
ALSO EXCEPTING Los Amigos Ranch Filing 5, Phase 1, County of Garfield, State of
Colorado, according to the plat thereof recorded 26 August 1997, as Rec. No.
512790.
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ALSO EXCEPTING Los Amigos Ranch, Filing 5, Phase 2, County of Garfield, State of
Colorado, according to the plat thereof recorded 12 August 1998, as Rec. No.
530431.
ALSO EXCEPTING those lots shown as Rural Residential and Filing 2A according to
Board of County Commissioners Resolution No, 96-34 recorded 18 June 1996,
in Book 982 at Page 103.
ALSO EXCEPTING a tract of land situate in Section 5, Township 7, South, Range 88
West of the 6th Principal Meridian being more particularly described as follows:
Beginning at a point whence the NE corner of Section 8 of said Township and Range
bears S 02°29'58" E 1058.99 feet; thence N 00°01'13" W 505.32 feet; thence
N 64°15'15" E 55.12 feet to the west line of a tract of land described in Book 399
at Page 265 of the records of the Clerk and Recorder of Garfield County, Colorado;
thence S 00°01'13" E 509.03 feet along said west line to the north right-of-way line
of County Road 114; thence S 67°49'48" W 53.61 feet along said right-of-way to the
point of beginning, containing 0.578 acres more or less.
KW:Ic/1503A.1 1
111111111111111111111111 IIl iI 11111 Il 111111 INN
587475 08/30/2001 03:01P B1282 P57 M ALSDORF
of 66 R 330.00 D 0.00 GARFIELD COUNTY CO
EXHIBIT A
PINON PINES
A parcel of land situate in the NE'/4 of the SW /4 of Section 4, Township 7 South, Range 88 West of
the Sixth Principal Meridian, being more particularly described as follows:
Beginning at the Southeast Corner of said Section 4, thence N. 72°21'48" W. 4226.11 feet to the
Southwest Corner of saidNEl/4 of the SW1/4; thence S. 89°53'11"E.281.52 e tetEa37gthe South line
feet; thence
of saidNE1/4 of the SW1/4 to the true point ofbegmn,ng; thence N.
N. 83°50'11" W. 233.03 feet; thence N. 04°01'47" W. 24420
� E 393 thence
f t� ��9eN. 89'°53'I1'�VJ.
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feet; thence S. 82°27'I4" E. 65.88 feet; thence S. 01 16
431.33 feet along the South line of said NE'/4 of the SW/ to the true point of beginning.
11111111111 111111 111111 111111111 111111 III 111111 III 1111
58517of5668R3330001 00 D301P B1282 0.00 GARFIELDaCOUNTYDCOF
EXHIBIT A - AUBURN RIDGE
Lot 2
Resubdivision of Los Amigos Ranch
Filing No. 1
County of Garfield
State of Colorado
Also known as 0228, 0230, 0284 and 0286 Auburn Ridge Lane,
Glenwood Springs, CO 81601
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587475 08/30/2001 03:01P B1282 P60 M ALSDORF
53 of 66 R 330.00 D 0.00 GARFIELD COUNTY CO
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5874700/2001 0:01P B1282 D30 0 GARFIELD1COUNTYDCOF
544
SPRING VALLEY SANITATION DISTRICT
EXHIBIT D
PLANT PROJECT BUDGET
A. CAPITAL COSTS
1. Wastewater Treatment Facility
2. Valley Lift StationlForce Main
3. Effluent Lift Station/Force Main
4. Lower Bench Lift Station/Force Main
$ 2,938,000
$ 387,000
$ 358,000
$ 371000
Subtotal, Capital Costs $4,054,000
9. EASEMENTS/PROPERTY ACQUISITION
C PRE -CONSTRUCTION AGREEMENTS
D. CONSTRUCTION PHASE
1. Construction Management
2. Legal/Administrative
3. Administrative
s43,1,09,9x4\DWC:loc
-0-
$ 223,000
$ 203,000
1____31,S101)
000 233 ,
Subtotal, Construction Phase $ $ 233 _-
TOTAL, PLANT PROJECT BUDGET $4.54 O,ODgq
7199
EXHIBIT E
35 ACRE LOTS BOUNDARY
1111111 1111111111111111111111111111111111111111111111
587475 08/30/2001 03.01P B1282 P62 M ALSDORF
55 of 66 R 330.00 D 0.00 GARFIELD COUNTY CO
A parcel of land located in Sections 14, 15, 16, 21, 22, 23, 26, and 27, Township 6 South, Range 88 West,
Sixth Principal Meridian being more particularly described as follows:
Beginning at the Northeast Corner of Section 20, Township 6 South, Range 88 West, Sixth Principal
Meridian being a 2-1/2 inch GLO Brass Cap found in place said comer also being on the west line of said
Section 16 thence N 00°00'14" W a distance of 2631.77 feet along the west line of said Section 16 to the
East Quarter Corner of Section 17, T. 6 S., R. 88 W., 6th P.M. being a 2-1/2 inch GLO Brass Cap found in
place; thence N 00°08'04" W a distance of 340.70 feet continuing along the west line of said Section 16 to
the West Quarter Comer of said Section 16 being a 2-1/2 inch GLO Brass Cap found in place; thence N
00°01'47" E a distance of 1047.99 feet continuing along the west line of said Section 16 to the southwest
comer of a parcel of land described in Book 448, Page 284 in the office of the Garfield County Clerk and
Recorder, thence the following three courses along the boundary of said parcel described in Book 4.48, Page
284:
1. thence N 89°16'47" E a distance of 334.10 feet;
2. thence N 03°35'47" E a distance of 252.06 feet;
3. thence N 88°27'52" W a distance of 349.87 feet to a point on the west line of said Section 16;
thence N 00°01'47" E a distance of 977.15 feet along the west line of said Section 16 to the Northeast
Corner of said Section 17 being a 2-1/2 inch GLO Brass Cap found in place; thence N 00°01'20" W a
distance of 344.80 feet continuing along the west line of said Section 16 to the Northwest Corner of said
Section 16 being a 2-1/2 inch GLO Brass Cap found in place; thence N 89°57'15" E a distance of 2703.26
feet along the north line of said Section 16 to the North Quarter Comer of said Section 16 being a 2-1/2 inch
GLO Brass Cap found in place; thence N 89°57'09" E a distance of 2637.87 feet continuing along the north
line of said Section 16 to the Northeast Comer of said Section 16 being a 2-1/2 inch GLO Brass Cap found
in place; thence N 89°58'17" E a distance of 2638.56 feet along the north line of said Section 15 to the North
Quarter Comer of said Section 15 being a 2-1/2 inch GLO Brass Cap found in place; thence S 89°59'36" E a
distance of 1318.31 feet continuing along the north line of said Section 15 to the west line of the
NE1/4NE1/4 of said Section 15 being a 3 -inch Aluminum Cap (L.S. 15710) found in place whence the
northeast comer of said Section 15 being a 2-1/2 inch GLO Brass Cap found in place bears S 89°59'36" E
1318.31 feet; thence S 00°00'09" E a distance of 1312.36 feet along the west line of the NE1/4NE1/4 of said
Section 15 to the southwest comer of the NE1/4NE1/4 of said Section 15 being a 3 -inch Aluminum Cap
(L.S. 15710) found in place; thence N 89°56'46" E a distance of 1317.67 feet along the south line of the
NE1/4NE1/4 of said Section 15 to the southeast comer of the NE1/4NE1/4 of said Section 15 being a 3 -inch
Aluminum Cap (L.S. 15710) found in place; thence S 89°58'46" E a distance of 1320.64 feet along the north
line of the SW1/4NW1/4 of said Section 14 to the northeast corner to the SW1/4NW1/4 of said Section 14
being a 3 -inch Aluminum Cap (LS. 16710) found in place; thence S 00°01'34" W a distance of 1312.94 feet
along the east line of the SW1/4NW1/4 of said Section 14 to the southeast comer of the SW1/4NW1/4 of
said Section 14; thence S 00°01'19" E a distance of 2647.58 feet along the east line of the W1/2SW1/4 of
said Section 14 to the southeast comer of the W1/2SW1/4 of said Section 14; thence S 89°59'40" E a
distance of 1318.39 feet along the north line of said Section 23 to the North Quarter Comer of said Section
23 being a 2-1/2 inch GLO Brass Cap found in place; thence S 00°05'23" E a distance of 5277.46 feet along
the east line of the W1/2 of said Section 23 to the South Quarter Comer of said Section 23 being a 2-1/2
inch GLO Brass Cap found in place; thence S 00°00'49" W a distance of 5529.94 feet along the east fine of
the W1/2 of said Section 26 to the South Quarter Comer of said Section 26 being a 2-1/2 inch GLO Brass
Cap found in place; thence S 84°59'30" W a distance of 31.37 feet along the south line of said Section 26 to
the North Quarter Corner of Section 35, T. 6 S., R. 88 W., 6`" P.M., being a 2-1/2 inch GLO Brass Cap found
in place; thence S 84°41'15" W a distance of 1292.34 feet along the south line of said Section 26 to the
southeast corner of Lot 14 of said Section 26: thence N 00°21'37" E a distance of 372.49 feet along the east
line of said Lot 14, Section 26 to the northeast comer of said Lot 14; thence NI 89°53'31" W a distance of
1611.72 feet along the north Zine of said Lot 14 to the northwest corner of said Lot 14: thence S 00°00'14' W
a distance of 525.17 feet along the west line of said Lot 14 to the Southwest Gorier of said Section 26 being
a 2-1/2 inch GLO Brass Cap found in place: thence N 89°14'59" W a distance of 598.59 feet along the south
line of said Section 27; thence N 00°45'03" E a distance of 425.99 feet; thence N 08°45'36" W a distance of
1546.11 fee thence N 25°57'08" W a distance of 1863.71 feet thence N 5712'11" W a distance of 1507.60
feet, thence N 33°43'34" W a distance of 2585.68 feet; thence N 67°46'01" E a distance of 38.27 feet;
thence N 33°43'34" W a distance of 993.23 feet thence N 33°15'31" W a distance of 2260.78 feet thence N
62°54'53" W a distance of 3597.58 feet thence N 54'19'21" W a distance of 124.93 feet; thence S 49°04'45-
W a distance of 1186.94 feet; thence N 03°43'14" W a distance of 470.01 feet to the Northeast Corner of
said Section 20 being the POINT OF BEGINNING containing 3,029.48 acres more or less, prior to the
following excepted parcel:
1) SECTION 15 EXCEPTION PARCEL
A parcel of land being the Northwest Quarter of the Southwest Quarter of Section 15, Township 6 South
Range 88 West, of the Sixth Principal Meridian, said parcel being further described as follows;
Beginning at the West Quarter Corner of said Section 15 being a 2-1/2 inch GLO Brass Cap found in place,
thence N 89°51'07" E for a distance of 1323.59 feet along the North line of the NW1/4SW1/4 of said Section
15 to the northeast corner of the NW1/4SW1/4 of said Section 15; thence S 00°01'49" E for a distance of
1540.50 feet along the East line of the Nw1/4SW114 of said Section 15 to the Southeast Comer of the
NW1/4SW1/4; thence S 89°58'25" W for a distance of 1323.59 feet along the south line of the NW1/4SW1/4
of said Section 15 to the southwest comer of the NW1/4SW1/4 of said Section 15; whence the Southwest
Corner of said Section 15 being a 2-1/2 inch GLO Brass Cap found in place bears S 00°01'49" E for a
distance of 1537.70 feet; thence N 00001'49" W for a distance of 1537.70 feet along the west line of the
Nw1/4SW1/4 of said Section 15 to the northwest comer of the NW1I4SW1/4 of said Section 15 being the
POINT OF BEGINNINIG containing 46.76 acres more or less.
The 35 Acre Lot Parcel total area minus the exception is 2982.72 acres more or less.
IIIA ���l IIIIII III IIIIIII II IIII
588747747 5 08/30/1 IIIA IIlI\\ 1111111 03:01P 81282 P63 M ALSDORF
56 of 66 R 330.00 D 0.00 GARFIELD COUNTY C
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o THIS AGREEMENT is made and entered into this / _S �of December, 1999, by
mom o o and between SPRING VALLEY SANITATION DISTRICT, a Colorado Special District
N N ("District") and COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT, a Statutory
.M. N it Junior College District ("CMC").
EXHIBIT F
AGREEMENT
�.+ a
m 0
d m WITNESSETH:
=on a�
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o a WHEREAS, the District is a provider of wastewater treatment services for property
�m
• m owners located in Spring Valley, near Glenwood Springs, Colorado; and
C4 CD
� "' WHEREAS, the District provides wastewater treatment services to CMC according to
m o the terms and conditions of that certain Sewage Treatment Services Agreement dated July 2,
w 1979 and the District's Service Plan dated July 1979 ("District Formation Documents"); and
co In KO WHEREAS, the District and CMC executed a Lease and Agreement dated February
26, 1980, which provides for the District's use of CMC property for the District's
wastewater treatment facilities ("Lease Agreement"); and
WHEREAS, the District and CMC have entered into agreements which establish
additional terms and conditions of CMC's use of the District's wastewater treatment
services, including but not limited to that certain Agreement Concerning Improvement of
Wastewater Treatment Facilities dated April 30, 1988, that certain Agreement dated October
14, 1992, and that certain Agreement dated February 15, 1996, (the "Prior Agreements");
and
WHEREAS, the District and CMC executed that certain CMC Tie -In Agreement
dated December 18, 1996 (the "Tie -In Agreement") which established the parties' mutual
rights and obligations concerning CMC's use or non-use of the District's facilities for an
additional 35 EQRs to service new dorm units constructed in 1997 (the "New Dorms"); and
WHEREAS, the District Formation Documents, the Lease Agreement, the Prior
Agreements, and the Tie -In Agreement provide, inter alia, the District with its existing
wastewater treatment facilities, a long term lease for use of CMC property upon which the
existing District facilities are located, and the District agreement to provide wastewater
treatment service to CMC to serve the CMC property and property owned by Colorado
Pinon Pines, Ltd. ("Pinon Pines"); and
WHEREAS, CMC utilized an additional 35 EQRs of the District's wastewater
treatment facilities to service the New Dorms in September, 1997; and
F: \ 1999\Ag reements\S V S D-CMC-Agmt- Final. wpd
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=min >- WHEREAS, the District and CMC have agreed with other landowners in the Spring
a m Valley area to construct expanded and upgraded wastewater treatment facilities (the "New
� 0 Plant") to serve the regional requirements in Spring Valley, including CMC's New Dorms
ID
....1
and 26 additional EQRs for future use on the CMC property; and
NF+
m a WHEREAS, the District and CMC have identified the rights and obligations of the
CL m parties by entering into a Pre-Inclusion and Wastewater Treatment Plant Development
G - Agreement (the "Plant Development Agreement"), dated k� r� C-�1C c +- 1 , 1999,
mowa G which agreement is also executed by Spring Valley Development, Inc., Berkeley Family
m m Limited Partnership, Los Amigos Ranch Partnership, Pinon Pines, and William and Pamela
N fD Gibson ("Auburn Ridge"); and
�m
el
o WHEREAS, the parties desire to incorporate this Agreement into the Plant
CD CO
r•-• t° Development Agreement, by designating this Agreement as Exhibit F thereto; and
momco co
WHEREAS, the District and CMC desire to resolve all remaining issues between the
District and CMC prior to the completion of the New Plant and the inclusion of the CMC
property within the District pursuant to the Plant Development Agreement; and
WHEREAS, the District and CMC desire to set forth the terms and conditions
pursuant to which all remaining outstanding issues between the District and CMC will be
resolved, the District's and CMC's mutual rights and obligations under the District
Formation Documents will be modified, the Prior Agreements and the Tie -In Agreement will
be suspended and later terminated, and the CMC property will be included within the
District.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the
parties and other good and valuable consideration, the adequacy and sufficiency of which is
hereby acknowledged, the parties, on behalf of themselves, their successors, assigns, or
transferees, agree as follows:
1 Incorporation of Recitals. The foregoing recitals are incorporated herein by
reference.
2. The District Formation Documentsnd Prior Agreements. The parties agree
that, to the extent this Agreement is in conflict with the District Formation Documents and
the Prior Agreements, the terms and conditions of this Agreement shall control.
3. The Tie -In Agreement. The parties agree to resolve all issues regarding the
Tie -In Agreement. Therefore, subject to the provisions of paragraphs 8 and 9 below, the
parties agree that the Tie -In Agreement and any rights or claims thereunder shall be
suspended until commencement of New Plant operations, at which time the Tie -In
F: \ 1999\Ag reements\S VS D -C MC-Agmt-Final. wpd
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Agreement and any rights or claims thereunder shall terminate. Resolution of the Tie -In
Agreement issues shall include the following terms and conditions:
a. The District agrees to provide temporary wastewater treatment service to
CMC for the New Dorms connected to the District's facilities in September,
1997. Such temporary service shall be for 35 EQRs, and is contingent upon
CMC's execution of the Plant Development Agreement and compliance with
the terms and conditions thereof.
b. CMC shall not be obligated to pay system development fees for temporary
service for the 35 EQRs prior to commencement of New Plant operation as
identified in the Plant Development Agreement.
c. CMC agrees to pay the District a lump sum in the amount of Seventeen
Thousand Five Hundred Thirty -Three Dollars and Nineteen Cents
($17,533.19) for temporary service for the 35 EQRs from September, 1997
through and including October, 1999. All payments received by the District
reflect a final settlement of past temporary use by CMC of the District's
facilities, subject to the provisions of paragraph 8, below. Payment of the
lump sum by CMC to the District shall occur as follows:
i. Eight Thousand Seven Hundred Sixty -Six Dollars and Sixty Cents
($8,766.60) shall be due and payable to the District upon execution of
this Agreement.
ii. The remaining Eight Thousand Seven Hundred Sixty -Six Dollars and
Fifty -Nine Cents ($8,766.59) shall be due and payable upon award of
plant bid as identified in Paragraph 17 of the Plant Development
Agreement.
d. Upon execution of this Agreement, the parties agree that CMC shall be billed
for the additional 35 EQRs of usage at the rate of Sixteen Dollars Thirty -Two
Cents ($16.32) per month per EQR. CMC shall be obligated to pay such
monthly service fees to the District beginning November 1999 until
commencement of New Plant operation under the Plant Development
Agreement or termination of this Agreement, whichever occurs first. The
District, in its sole discretion, may modify CMC's monthly service fee in
order to ensure payment of District obligations for operations, maintenance,
repair and replacement of its existing facilities; provided, however, in no event
shall the District assess a service fee on CMC for the additional 35 EQRs
which exceeds the rate per EQR charged to Auburn Ridge or any other
contract user served by the District.
F:\1999\Agreements\SVSD-CMC-Agmt-Final.% Pd 3
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e. Subject to the terms and conditions of paragraphs 8 and 9 below, the District
-..F. a 5 and CMC agree that resolution of issues in the Tie -In Agreement reflects a
�r 0 final settlement between the parties, does not constitute an acknowledgment of
NI=o w breach by either of the parties, and execution of this Agreement is intended to
MIN resolve such matters without any implication of wrongdoing by either party.
_
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m
f. In light of the additional 35 EQRs connected to the District's facilities for the
.m ma New Dorms, for which CMC is agreeing to pay past and future service fees as
Nom
mime a G set forth in paragraph 3, above, the parties agree to adjust the percentage of
su.• m m operation and maintenance (O&M) costs paid by CMC for CMC and Pinon
•I•••N•
Pines' usage. CMC currently pays 79.37% of the District's annual O&M
,Num el
�'" costs and is responsible for the same percentage of capital repair and
ce
m replacement costs. CMC's percentage shall hereafter be reduced to 60%. In
....
�'in `O recognition of the difficulty of calculating CMC's payment each year,
�• ° however, the parties agree that upon execution of this Agreement CMC shall
.... n o pay $5,000 as its share of 1999 O&M costs for CMC and Pinon Pines' usage,
receipt of which is hereby acknowledged by the District, and $3,750 per year
thereafter, due and payable on July 1 of each subsequent year and pro -rated to
the date of commencement of New Plant operation. CMC further agrees to
pay 60 % of any extraordinary capital repair and replacement costs necessarily
incurred by the District to keep the existing plant in operation until
commencement of New Plant operation.
4. CMC Wastewater Treatment Facility Collection Lines.
a. CMC owns wastewater collection and trunk lines on its property which carry
wastewater from CMC facilities and from Pinon Pines to the existing
wastewater treatment plant. CMC's collector line and Pinon Pines' collector
line join on CMC's property, and one trunk line carries wastewater from the
junction to the existing plant.
b. Upon award of the Plant construction contract under paragraph 17 of the Plant
Development Agreement, CMC shall dedicate to the District its trunk line
from the junction of the CMC and Pinon Pines lines to the existing plant. The
District may use such line for as long as the District, in its discretion,
determines that it is feasible to use the existing line. Thereafter, the District, at
its expense, shall abandon such line in accordance with federal, state and local
regulatory requirements.
c. The District shall install a new wastewater trunk line from the Spring Valley
Drainage to the existing plant site, pursuant to the terms and conditions of the
Plant Development Agreement. The District shall install the new trunk line
F: \1999 \Agrcements\S V S D-CMC-Agmt-Final. wpd
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along the general alignment of the existing trunk line at the points of
intersection with the existing CMC and Pinon Pines collection lines; provided,
however, the District may create a new trunk line alignment above and below
such points of intersection if necessary. When the District's new trunk line is
installed, CMC shall connect to it at CMC's expense and in accordance with
reasonable design standards of the District. All collection lines carrying
sewage from CMC facilities to the District's trunk line shall remain CMC's
private lines, and CMC shall bear all costs and liability for the operation,
maintenance, repair, and replacement of such private collection lines.
d. CMC shall dedicate to Pinon Pines the collection line across CMC property
which carries wastewater from Pinon Pines to the trunk line, and grant to
Pinon Pines the necessary easements therefor prior to the commencement of
New Plant operations. CMC understands, pursuant to an agreement between
the District and Pinon Pines, that the said collection line will be Pinon Pines'
private line, that Pinon Pines will be responsible for connecting its line to the
District's new trunk line at Pinon Pines' expense, and that Pinon Pines will be
responsible for the cost and liability of operation, maintenance, repair, and
replacement of its collection line. CMC and the District will cooperate in the
implementation of this Agreement.
5. CMC Payment in Lieu of Taxes. The District plans to derive revenues for the
operation, maintenance, repair, and replacement of its facilities from a combination of
monthly service fees and property tax revenues as set forth in the Plant Development
Agreement. CMC as a governmental entity is exempt from property taxation and the service
fees paid by CMC will not cover CMC's full share of the cost of service. To ensure that
CMC pays its full share of the cost of service, CMC agrees to pay to the District a payment
in lieu of taxes ("PILT") upon CMC's inclusion into the District and the commencement of
operation of the New Plant. CMC's agreement to make a PILT shall not be construed to
impair in any way CMC's status as a tax-exempt entity, and may not be relied upon by any
third party for any purpose. The amount of CMC's PILT obligation shall be determined
based upon the assessed valuation of CMC's property and improvements as determined by
the Garfield County Assessor, subject to the following terms and limitations:
a. The parties shall jointly request that the Assessor determine the assessed
valuation of CMC's property in accordance with the criteria identified in the
Colorado Revised Statutes, as amended, and as set forth below, reserving to
CMC the same right to challenge such valuation as CMC would enjoy if it
were not tax-exempt. If the statutory appeal procedures are not made
available to CMC because of its tax exempt status or any other reason, the
parties will attempt to resolve any dispute between themselves, and if they are
not able to do so within 60 days, they shall submit the dispute to binding
arbitration.
F:\ 1999\Agreements\SVSD-CMC-Agmt-Final.wpd 5
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o In e. The ratio of CMC's annual PILT obligation to the total tax payments of all
oother property owners in the District shall not exceed the ratio of CMC's
o EQRs receiving treatment service from the District to the total EQRs of all
an
o other customers receiving treatment service from the District. For example, if
o CMC has 86 EQRs receiving service from the District, and all other customers
have a combined total of 172 EQRs (a ratio of 1:2), and all other property
owners pay a combined total of $10,000 in taxes, then CMC's PILT payment
shall not exceed $5,000 (also a ratio of 1:2). In other words, CMC EQRs
receiving service, divided by all other customer's EQRs receiving service,
multiplied by all tax revenues received by the District from all other property
owners, equals CMC's maximum PILT obligation.
f. During the first five (5) calendar years of operation of the new plant, with the
first calendar year of operation prorated accordingly, CMC's annual PILT
obligation shall not exceed Five Thousand Dollars ($5,000.00).
On March 1 of each year, the District shall provide written notice of the
previous calendar year's PILT obligation to CMC. CMC shall pay its PILT
obligation for the preceding calendar year to the District no later than April
15. In the event CMC appeals the assessment or a dispute regarding valuation
occurs, it shall pay its PILT obligation to the District under protest by the
April 15 deadline. If CMC prevails on said appeal or dispute, the District
shall immediately make any and all adjustments by refund to CMC.
b. The assessed valuation of CMC property which includes dormitory, single-
family, or multi -family dwelling unit improvements shall be considered
residential use for assessed valuation purposes.
c. The assessed valuation of CMC property which is vacant with no
improvements shall be considered agricultural use for assessed valuation
purposes.
d. The assessed valuation of all other CMC property and improvements shall be
classified by use as determined by the Assessor in his or her discretion, subject
to CMC's right to challenge the classification.
g.
6. • r i • n • I • - t - u- I •f ►-w
Plant Operation. Upon the commencement of operation of the New Plant, the District shall
provide an accounting of any remaining balance of the revenues collected from CMC,
Auburn Ridge, in -District customers, or any other person or entity receiving or paying for
service in the existing plant prior to the commencement of operation of the New Plant
("Existing Users"), and shall set aside any such balance in a separate fund (the "Existing User
Fund"). The District intends to apply the Existing User Fund solely for the benefit of
F: \ 1999\Ag reements\S VS D-CMC-Agmt-Final. wpd 6
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Existing Users who paid for service in the existing plant. However, the District also
considers it prudent and necessary to set aside some of the Existing User Fund as an
emergency reserve to pay for any New Plant operation and maintenance expenses that cannot
be paid out of New Plant revenues.
The District hereby agrees to apply at least fifty percent (50%) of the Existing User
Fund as a credit against Existing Users' service fees, standby fees, or tap fee loan repayment
obligations under the Plant Development Agreement on a pro -rata basis according to Existing
User EQRs at the date of commencement of New Plant operation. Unless later changed by
mutual agreement, the basis for the pro -rata allocation shall be the following EQRs of
Existing Users:
a. CMC 86 EQRs
b. Pinon Pines 46 EQRs
c. Auburn Ridge 29.5 EQRs
d. Existing in -District Users 49 EQRs
The method and timing of these credits shall be determined by the District in its
discretion, provided that the result shall be a pro -rata credit of at least fifty percent (50 %) of
the Existing User Fund within two years after commencement of operation of the New Plant.
Any portion of the Existing User Fund not credited to Existing Users within two years
after commencement of New Plant operation may be used by the District for New Plant
operation and maintenance costs, if the District determines in its sole discretion that it has
insufficient revenues under the Plant Development Agreement to cover the operation and
maintenance costs of the New Plant. If, however, the District finds- that it is not necessary to
use the Existing User Fund for New Plant operation and maintenance costs within three years
after the commencement of New Plant operation, then it shall apply the remainder of the
Existing User Fund as a credit against Existing Users' service fees, standby fees, or tap fee
loan repayment obligations under the Plant Development Agreement on a pro -rata basis
according to EQR numbers listed above or as modified by mutual agreement. The method
and timing of these credits shall be determined by the District in its discretion, provided that
the result shall be a pro -rata credit of the remainder of the Existing User Fund within five
years after commencement of operation of the New Plant.
7. Service to Pinon Pines. CMC currently pays the District for wastewater
treatment provided to CMC and Pinon Pines. Pinon Pines is a contract customer of CMC.
The District and CMC agree that, until commencement of operation of the New Plant, CMC
may continue to charge Pinon Pines for sewer service at rates to be determined by CMC and
Pinon Pines, and that CMC will continue to pay the District based on the combined EQRs of
CMC and Pinon Pines as provided for in Paragraph 3 above. Upon inclusion of Pinon Pines
into the District and commencement of operation of the New Plant, Pinon Pines will become
a direct customer of the District under the Plant Development Agreement, and the District
F: \ 1999\Ag reements\S V S D -CMC -Ag mt• Final.wpd 7
N� will bill Pinon Pines directly for its service. CMC shall thereafter have no obligation to pay
Q z the District for Pinon Pines' sewer service.
-Eo
ao 8. Suspension/Termination of Agreements and Documents.
Na. The parties intend this Agreement to resolve all outstanding issues between
0 them until the commencement of operation of the New Plant, when, pursuant
CL
4-4 m to the Plant Development Agreement, the rights and obligations of the parties
will be newly defined following the District's expansion and CMC's inclusion
oIS) into the District. Therefore, the parties agree that the Prior Agreements, the
m m Tie -In Agreement, and the District Formation Documents as they pertain to
m CO the parties hereto, shall be suspended upon execution of this Agreement.
Upon commencement of New Plant operation, the Prior Agreements, the Tie-
0 0
In Agreement (subject to the terms of paragraph 9, below), and the District
o Formation Documents as they pertain to the parties hereto, shall be expressly
oterminated and the rights and obligations of the parties will be governed
10
pursuant to the Plant Development Agreement, the District's Amended Service
Plan, the District's Rules and Regulations, and the terms and conditions of this
Agreement.
b. In the event that either the Plant Development Agreement is terminated, CMC
is not included into the District or the New Plant does not commence
operation, this Agreement shall immediately terminate and the parties shall
retain all rights and claims they may have under any agreement or otherwise
as of the date of this Agreement. Upon such termination, this Agreement shall
have no precedential effect in a dispute between the parties, shall not be used
as evidence in any legal proceedings, shall not be deemed a waiver of any
party's position under any prior agreement, and any and all payments received
by the District from CMC shall be offset against any final resolution of the
dispute between the parties. The parties agree that any applicable statute of
limitations shall be suspended while this Agreement is in effect.
9. Termination of Agreement; Future Dispute. Except as provided in paragraph
8 above, this Agreement shall not be terminated absent agreement by the parties hereto, their
successors or assigns. The parties recognize a future dispute could arise concerning CMC's
use of the District's wastewater treatment facilities for the New Dorms. In the event such a
dispute is raised by a third party (neither the District nor CMC shall initiate such a dispute),
the parties agree that the terms and conditions of this Agreement shall remain in full force
and effect; provided, however, the parties agree to modify this Agreement to make it
consistent with any order of the Court or any agreement of the parties hereto which resolves
such dispute. The parties further agree that in the event of such a dispute, or litigation
resulting therefrom, neither this Agreement nor its terms and conditions shall be admissible
as evidence and such dispute shall be determined as if this Agreement never existed.
F: \ 1999\Ag reements\S V SD-CMC-Agmt-Final. wpd 8
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.l..O v 10. Lease Agreement. The parties agree to enter into a new lease agreement for
i ; ~ the New Plant prior to the award of plant bid as identified in Paragraph 17 of the Plant
cDevelopment Agreement. The new lease shall be for sufficient land to accommodate the
"= ca " New Plant and reasonable expansions thereof, and necessary and reasonable access to the
ro
Inn a. W plant site. The existing Lease Agreement shall be terminated upon the execution of the new.
�N IL lease agreement.
�� a 11. Default by CMC: District Rules and Regulations. In the event CMC fails to
min? m complete any obligation identified in this Agreement, the District shall declare CMC in
- m G default thereof. In the event CMC is deemed by the District to be in default of this
Nam r,, m Agreement, CMC shall be subject to the terms and conditions of the District's Rules and
mRegulations in effect at the time of default.
MEM MIMI m 12. Binding Effect. This Agreement shall be binding upon and inure to the benefit
MOM �. of the parties hereto and their respective successors and assigns.
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in Ia 13. Valid Provision. If any provision of this Agreement shall be determined to be
void or unenforceable by any court of competent jurisdiction, such determination shall not
affect any other provision hereof, all of which other provisions shall remain in full force and
effect. It is the intention of the parties that, if any provision of this Agreement is subject to
two (2) constructions, one of which would render the provision void and the other of which
would render the provision valid, then the provision shall have the meaning which renders it
valid.
14. Fees and Costs; Survival. Should this Agreement become the subject of
litigation between the District and CMC, the prevailing party shall be entitled to reasonable
attorney fees and costs of suit actually incurred, including expert witness fees, as well as any
and all other costs incurred in connection with enforcing any provision herein. All rights
concerning revenues, attorney fees, and/or enforcement costs shall survive any termination
of this Agreement.
15. Authority. Each person signing this Agreement represents and warrants that
he is fully authorized to enter into and execute this Agreement, and to bind the party it
represents to the terms and conditions hereof.
16. Ratification of Plant Development Agreement. Except as expressly modified
herein, the parties ratify and affirm the Plant Development Agreement.
F: \ 1999\Ag rcemcnty\SVS D -CMC -A gmt- Final, wpd 9
IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement in duplicate originals upon the day and year set
forth above.
SPRING VALLEY SANITATION DISTRICT
By: )�-L` r - ``g j_ r '
regl
GBoecker, President
J
COLORADO MOUNTAIN JUNIOR COLLEGE DISTRICT
7c7//4.2.
Dr. Robert H. 3'puhler, Vice President
STATE OF COLORADO )
) ss.
COUNTY OF GARFIELD )
Subscribed and sworn to before me this/ 6 " flay of
D- eC" he
by Greg Boecker as President of Spring Valley Sanitation District.
(SEAL)
My Commission Expires:
4961 F/A 033
STATE OF COLORADO
COUNTY OF GARFIELD
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, 1999,
Subscribed and sworn to before me this /5-,X day of
1999, by Dr. Robert H. Spuhler as Vice President of Colorado Mountain Junior College
District.
(SEAL)
My Commission Expires:
//2 s/off Nota Public
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