HomeMy WebLinkAboutWastewater Service Agreementt {tr
WASTEWATER SERVICE AGREEMENT /{20@
THIS AOREEMENT (thii "Agreement") is executed to be effective as of this 5th day of
September, 2000, by and between Wasfe Water Treatment Services, LLC, a Colorado Limited
fi*itity Company (.WWTSt'), Western $lope Development Company, a Colorado corporation
(,'Deveioper"fand Cottonweiorl Springs LLC, a Colorado, Limited Liability Company ("CWS':),
(collectively the "Parties"). WiTNESSETH:
WI{ERSAS, CWS owns certain real property presently used as a residerltiai community
located in the County of Garfield, State of Colorado (the "CWS Property");
WHEREAS, WWTS owns and operates a wastewater treatment plant and related facilities,
appurtenances and collection systems (the "Wastewater Treatment Facilities") on aud about the CWS
property for the benef,rt of CWS and its residents and tlrrough its predecessor has in the past agreed
to piovide wastewater treatment services to Rifle Service Park PUD under a now expired agreement;
WI{EREAS, Developer is the owner of certain real propbrty located in the County of
Garfield, State of Colorado, as.is,mgre particularly desctibed in Exhibit "A" annexed hereto and
incorporated herein by this r"Grence (the "PPP Property"), which PPP Property lies east of and
adjacent to lhe CWS ProPertY;
WHEREAS, Developer is in the process of subdividing and plattirrg the PPP Property, and -- in connection therewith, the Developer rnusf obtain wastewater collection and treatment services
("Wastewater Service") for the PPP Properfy;
WHEREAS, Developer has requested, and WWTS has agreed to provide such Wastewater
Service to the ppp property, and the Parties desire to set forth their agreernent regarding the terms,
covenants and conditions under which such Wastewater Service will be provided.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, represeutations
and warranties contained in this Agreement, the Parties agree as follows:
in-fr astf Ucturp. Imppvemqnts anilQp pt Al I o qglign
a. W4stewater Tre4trnpnt Facilities Imprgyement P.tgipc-t. Portions of the Wastewater' Treatment Facilities may be improved, replaced, upgraded and expanded to provide
Wastewater Service to the PPP Property (the "Wastewater Treatment Facilities
Improvement Project"). Contingent upon receipt of the tap fees identified below, the
"oit of th" Wastewater Treatment Facilities Improvement Project shall be borne by
W'WTS, and shall be designed, engineered and constructed by WWTS'
il
Collection System") must be designed and constructed on and about the PPP
A F'IER RECOIIDING, RE'I'UIIN'I'O:
Schcrrk, Kerst & dsWinter, LLP
302 Eightlr Strccl, Suile 3 l0
Glcnrvood Springs. CO 81601
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Property, including, but not limited ton collection lines and other facilities and
appurtenances to provide Wastewater Service to the PPP Property. The DevCloper
Collection System shall be designed, engineered and constructed at Developer's sole
cost ancl expenser subject to the provisions of Section 2.b. All primary connection
lines shall be a nrinimum of eilht inches in diameter.
Cqnqsctile Main. A connecting main ("Connecting Maig") must be designed and
constructed originating in the southeast comer of the CWS Property at an existing
sewer main on the CWS Property and extending generally east to the PPP Property
to connect the Developer Collection System to the Wastewater Treatrnent Facilities.
The lans and ons for the desi of shall be
to review and ents of WWTS's The Connecting
at the place ofA) constructed
connection to the existing sewer main on the CWS properly, a sewer line of sufficient
diameter extending to the east and terminating inside the PPP Property at a second
new manhole (Manhole B) intersecting the nsarest accessible access point in the
Developer Collection System. In Manhole B the following devices shall be properly
installed: (a) bar screen, (b) grease trap, (c) a constant flow meter adequate for
measuring the flow of wastewater from the PPP Property into the Connecting Main
and (d) shutoff device adequate to prevent effluent from the PPP PropertY from
entering the Wastewater Treatment Facilities. The M
and operated WWTS and Irere an
and the fact tl:at aportion ofthe -
i be iocaied wiihin the C ltrd h --- J --,:tl L^ ^--,-^l ^-lwD l'I"uIJClty altu wllr uF uwllEu allu
a new rnanhole
operated by WWTS, the Connecting Main shall be designed, engineered
and thereafter maintained, repaired and replaced at the cost and
and installed
expense of
and
Developbr , acting as agent for wwTS and subject to the direction and approval of
WWTS in the
hold harmless
property.
exercise of its reasonable discretion' Developer shall
WWTS from all
or lacement
no easements or other property rights with respect to
2. Easqr-nents.
Deyelgpe{ Collection Syster4.Easement. Upon commencement of construction of
the Developer Collection System, WWTS shall have a nonexclusive easement (the
"DevelopeiCollection System Easement")which shall (i) onlybe subject to such title
^.-J L..-l^-^ rL^r..,^.,1J -^+ *-+--i^11., i--oir lirnit nr inlcrfere rwith WWTSTqIllatttrrs arru uulusllJ llt(lt wuuru lluLllr4rwrtsrrJ urrysr"
exercise of any of its rights thereunder; (ii) allow WWTS and its contractors,
consultants, licensees, employees and agents, upon reasonable notice, to enter upon
the portion of the PPP Property containing the Developer Collection System and, if
reasonably necessary to access the Developer Collection System, to enter upon
adjacent portions oftfie PPP Property (such as connecting facilities and fixtures); and
a.
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(iii) be used to monitor and inspect the Developer Collection System and all
connections thereto, and if the Rules and Regulations have been violafdd or
Developer has been negligent or untimely in performing its obligations hereunder,
may be used by WWTS to maintain, operate, repair, replace and clean the Developer
Collection System.
b.Rishts qf _Q.thers to_CSAnppt. At the sole election and disuetion of WWTS, other
persons owning other real properfy (collectively and individually "Third Party") may
be allowed to connect into the Developer Collection System, Connecting Main and
the Wastewater Treatment Facilities. Any such connection and use shall be at the
sole cost and expense of the Third Party. At the time of any such connection, and as
* a condition precedent to commencement of service to a Third Parly, the Third Parfy
shall pay to Developer a connection fee ('Third Party Line Connection Fee")
reimbursing a portion of the costs incuned by Developer in installing the Corinecting
Main and Developer Collection System which portion will be necessary for service
to the Third Party. The Third Party Line Connection Fee shall be based on the
present value of tlie capital cost of constructing such lines (as such cost is reasonably
determined by engineers employed by WWTS), less applicable depreciation, and
shall be based on the proportion to which the EQRs provided to the Third Parfy bears
to the total EQRs (including Developer's EQRs) utilizing the applicable portion of
Developer Collection System and Connecting Main. The Third Party shall also agree
to pay to Developer a proportional share of Developer's costs of operating,
maintaining, repairing and replacing suchportion ("Third Party's Line Maintonance
Costs"). Third Party shall also agree to be responsible for any loss, cost, damage or -
expen$e caused by the Third Party and for any breach of, or default under, this
Agreement caused by the Third Pariy. In any such agreement with Third Party,
WWTS shall include a provision that permits WWTS to shut off wastewater service
to a Third Party if such Third Party at any time fails, after appropriate notice and right
to cure, to pay such Third Party's Line Maintenance Costs required to be paid to
Developer. TUWTS shall use its best efforts and any rights available to it to compel
such payment, however, WWTS shali not be a guarantor of the collection of the
same.
Limitetiong-pn the use of Wastpwatpr Treatment FAcilities. Without limiting the right of
WWTS to impose Rules and Regulations as described below, Developer agrees that the
Wastewater Treatment Facilities shall be utilized by Developer only for human waste and
such related wastes which are'not inconsistent with typical single family residential use.
Further, Developer agrees not to introduce or permit the introduction into the Wastewater
Treatment Facilities of:
Toxic or poisonous lnaterials or substances in sufficient quantities to injure or
interfere with the sewage treatment process or otherwise constituting a hazard to
a.
Treatment Facilities,
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Contaminants identified as a "National Primary Drinking Water Contaminant"
presgnt in an amount exceeding the standard established frorn time to tinie by
government authorities having jurisdiction,
Liquid or vapor having a temperature higher than 105 degrees, Fahrenheit,
Anywastehaving a five-daybiological oxygen demand (BOD) in excess of 500 mgil
by weight averaged during any 12 hour period or total suspended solids (TSS) in
exce$s of more than 400 mg/l by weight averaged during any 12 hour period;
e.
f.
Any gasoline, benzene, fuel oil, flammable or explosive Iiquid, petroleum product,
solvent or gas,
Any substance produced as a byproduct of a water treatment sygtem which negatively
affects any waste water treatment process used by WWTS, such.as Sulfuric acid
treatment of reverse osmosis treated water,
Any substance which wouid materially alter the existing pH factor (i.e., 7.6) now
present in the Wastewater Treatment Facilities,
Any solid or ,viscous substance capable of obstruction of sewer lines or other
interference with pruper uperation of the Wastewater Treatment Facility,
Dissolved solids (salts) beyond usual levels affecting WWTS's ability to meet any
r, ,! ! .. - -- l --- .l-- \lt--a-----.--^ T-^--.--,,-^saltntty ellluent llmllauotl palallt9tef rrIrPustru uu ullJ Yv asruwarul I r(1alilil5llr
Facilities, or
j. Infiltration of the wastewater system by ground or seepage water
Developer further agrees that all floor drains and other types of surface wastewater disposal
devices, including grease and other collection systems on the PPP Property, will not be
connected to the Developer Connection System,.but instead will be collected in separate
containment systems. Developer further agrees that grease, oil and sand traps or other
appurtenances will be used for any improvement on the PPP Property when WWTS
reasonably determines the same are necessary for proper handling of any liquid waste
containing grease in excessive amounts or a flamtnable waste, sand or other harmful
ingrediehts. Such devices shall be of a type and capacity approved by WWTS and shall be
so located as to be readily accessible for cleaning and inspection, Developer further agrees
to require individual water meters for each lot on the PPP Property with water usage arrd total
flow readings made available to WWTS as reasonhbly requested. Developer agrees to
:*,l^*-:e' ,l-s.-*,1 --'l t'^l,l ltt\l/Te ho*torc ft^* q-d aoointl qnw enrl rll liohilit* l^nclllugllrrrrrj t vwlvlrq qllu llulu tt !t r u t 'vvv,
cost, damage and expense, including attorneys' fees and costs of litigation, WWTS shall ever
suffer or incur because of the introduction of any toxic substance into the Wastewater
Treatment Facilities from the PPP Property.
b
c.
d.
g
h.
t.
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4 Rules and B_ggUlations. WWTS has advised Developer, and Developer acknowledges and
"gi"*r, tSat WWTS is not, and does not hold itself out as, a public or private utility bt as a
giu*rn*"ntal or quasi-goverumental entity. WWTS shall have, in perpetuity, the right to
istablish and amend, from time to time, the rules and regulations under which Wastewater
Service will be provided to the CWS Properly, the Rlfle Service Park PUD, the PPP Property
and other Third Party users of the Wastewater Service which rules and regulations shall be
uniformly applicable also to all users. WWTS's disuetionary power and right to establish
and amend such Rules and Regulations is subject to the limitation that the Rules and
Regllations slrall not be amended to treat the PPP Property differently than any other
prJpe*y, including the CWS Property, except as provided in this Agreement or to
u*"uronubly, materially and adversely (a) affect the provision of Wastewater Service to
Developer, ib; in"r*"u* Developer's costs for such Wastewater Serviceo except as provided
herein, or (c) alter Developer's rights under this Agreement'
T.ap Fepq and EORs. Developer hereby agrees to purchase and, subject to the terms and
*ialtionr hereof, WWTS hereby commits to sell to Developer wastewater taps for not tuore
than I lots and a total of24 EQRs for such lots. For purposes of this Agreement, one "EQR"
shall equal generation of not more than 300 gallons of waste per day. Developer shall not
be entitied to introduce n:ore than 7,200 gallons of wastewater per day fronr the PPP Property
ilto the.Wastewater Treatment Facilities. Developer shall pay to WWTS an initial tap fee
of Four Thousand Dqllars ($4,000) per lot for a single EQR. Paynrent of the initial tap fee
for each lot slrall be made to WWTS at the time of the sale of each such lot by Developer to
a lhird party. In the event the {low through the measuring device installed at the Coru:ecting
Main malSole indicates an average daily flow rate over a 30 day period which exceeds the -
purclased EQRs, Developer shall be liable for the payment of additional EQRs based on
such uverag* ilo*. For exarnple, if tap fees have beerr paid lor 5 EQRs and over a 30 day
period the average daily flow has been 1,600 gallons, an additional tap fee of $4,000 shall
te immediately due and payable by Developer without respect to the specific source of the
additional flow. Developer acknowledges and agrees that once made, a tap fee payment
shall be deemed fully earned by WWTS and shalI not be refundable under any circumstances'
The $4,000 per lot tap fee shall remain in full force and effect for a period of ftve (5) years
cornmencing on the date hereof. After the expiration of such S*year period, (i) WWTS shall
have no obiigation to provide any unpurchased taps to Developer, and (ii) service for
additiogal feRs shall 6e determined by WWTS in its discretion. Any taps purchased
hereunder must be connected and put into service by Decernber 31,2020. Thereafter'
WWTS will have no obligation to allow connection of, or to provide Wastewater Service for
laps not put into service by such date or to provide additional taps except to the extent of therr
eiisting unused and uncommitted available capacity,
6, Sefvice ChargSs.The Developer shall pay service charges in accordance with ihe Rules and
Regulations promul gated.by WWTS from time to time; provided that the service charges per
EQR payable bY DeveloPer shall be equivalent to the seryice cltarges for similar services
esta blis 'as the same tnay be adjusted ftom time to lime'
in the event the discharge fiom the PPP Property exceeds the allowable limitof 7,200 gallons
uer day. WWTS shall have the right to refuse to provide Wastewater Service for any amount
'" in "*"rg of such lirnit, but, if in its sole discretion WWTS should determine that such
5
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additional wastewater i,nay be accepted for trealment, Developer shall be charged at a rate
which is 200 percent of the then cunent service charge rate for such excess anidunts.
WWTS's election to accept such excess wastewater or payrnent therefor shall in no way limit
WWTS's r.ight to discontinue the acceptance of such excess wastewater at such later date as
WWTS may determined.
EXtraordinary Capital Costs. In the event a major plant redesign of the Wastewatpr
Treatment Facilities is required by reason of the reclassification of the waters to which the
wastewater is discharged or any other material change in applicable laws, rules and
regulations governing the WWTS system, then Developer and the PPP Property shall share
pro rata, determined on a flow basis, with all other users, including CWS, in paying for the
cost of such a rnodification.
Developer Dpclqration. Developer expressly consents to the recordation of this Agreernent
in the real property records of County of Carfield, State of Colorado. Developer agrees that
it shall, prior to conveying fee simple title to any portion of the PPP Property to a third party,
cause to be recorded in the real property records of County of Garfield, State of Colorado,
a Declaration of Covenants, Conditions, Restrictions and Easements (the "Declaration"),
which, insofar as they relate to or may qffect this Agreement or the rights and obligations of
the parties hereto, slrall be in form and substance reasonably satisfactory to WWTS and its
iegal connsel. The form and substance of the Declaration shall be reasonably satisfactory to
WWTS if it is consistent with the terms of tliis Agreement. The Declaration shall be bindirrg
upon Developer, the PPP Property and all subsequent owners thereofand wilI, at a mininturn,
(i) contain a separale section entitled "Wastewater Service Disclosure" which will identiff -
trtrrt+d t ,1. ', )t | ^ , - r !- -t- ll,,-rt,-n- -l- --l n--- ^"crl*^ /'!r-^l'l-ll fl^.--r--..-^tvy w r D ailG rtrIel tu tnIS AgIetrmcnt, IIlrJiuulIrB tils Lf uull alru raBr; ur rllv \Jar rrtlu \-uuilry tvar
property records in which this Agreement is recorded and note that the provisiolrs of
Wastewater Service to the PPP Property is subject to'this Agreement; (ii) contain a provision
to the effect that Wastewater Service to the PPP Property is provided by private agreement
with WWTS which is a private limited liability company entitled to establish rules and
regulations for the provision of such service but which is not subject to rules or regulations
affecting public utilities; (iii) expressly require the acceptance of all of the Developer's
rights, and assumption of all of the Developer's obligations, under tlris Agreernent by an
entity created by the Developer (hereinafter referred to as the Developer's Utility Company,
or "DlfC", arrd as delined in the following Section) for managing and administering utilities
and related infrastructure ssrving the PPP Property, including but not limited to wastewater
services under this Agreement for the benefit of the PPP Property Owners and the PPP
Property Owners' Association; (iv) provide the DUC with lien and assessment rights over
the PPP Property and the power to enforce such lien and assessrnent rights sufficient to allow
the DUC to meet the Developer's obligations under this Agreement, including the power to
levy and collect assessments for such pu{pose (without the need for approval of tlte PPP
Prnnertv Orxners' A-ssoc.i.a!ion or lhe individual menrbers thereofl: (iv) nrovide for t!re.llvl,vlli,\../r.-..--
formation of the PPP Property Owners Association with lien and assessurent rights and the
power to enforce such lien and assessment rights sufficient to allow the PPP Property
Owners Association to meet its obligations hereunder, includiug the power to levy and
collect asse$stnents for such purpose without the need for member approval; (v) limit
'-utilization of the PPP Property to a single restaurant, provided that all conlaminants,
8.
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including undigested food and grease, would be collected and disposed of by a separate
collection system; (vi) prohibit other high volume wastewater producers such as dbntist
offices, laundromats, hotels, motels or motor vehicle service stations; (vii) provide screening,
landscape and setback restrictions on the CWS Property boundary line; and (viii) require the
DUC to administer the Developer Collection System by assuming the obligations of the
Developer hereunder including the provision of adequate insurance coverage naming
WWTS as an insured party or individual bonds on a per lot or use basis providing coverags
against systern contamination or damage'
The parties hereto acknowledge .and agree that,
subsequent to the execution of this Agreement, Developer intends to assign all its
delegate all its obligations under this Agreement to a separate entity to be formed
laws of the State of Colorado for the purpose of, inter alia, administering and
rights and
under the
managing
utilities and related infrastructure serving the PPP Property, including but not limited to
wastewater services under this Agreement. As mentioned in the foregoing Section, such
entity shall be referred to herein as the Developer's Utility Company ("DUC"). Accordingly,
all references in this Agreement to successors and/or assigns of the Developer shall be
deemed to include the DUC, as defined herein above.6ffiThe PPP Property Owners'
Association shall coniract with the DUC to acguire, inter alia, wastewater treatment and
disposal services for the individual lots within the PPP Property from WWTS under the
terrns and conditions of this Agreement, under such rules and regulations as may be adopted
by WWTS, and such terms and conditions as may be applicable between the PPP Property
Owners' Association and the DUC. Il for any reason and at any tirne, the DUC is not
formed, is inadvertently dissolved or is otherwise determined to be without legal capacity to -
act upon its rights and fulfill its obligations hereunder as Developer's assignee, then the PPP
propirty Owners' Association shall automaticaliy succeed to all rights and all obligations of
the Developer hereunder. In such event, if the PPP Property Owners' Association is not yet
formed, the Developer shall be deemed to have resumed and reacquired all rights and
obligations previously assigned to the DUC, It is expressly agreed between WWTS and the
Developer that this Agreement creates a master service relationship between WWTS and the
Developer, any Successor Developer, as hereinafter defined, and the DUC, for the ultimate
benefit of the PPP Property Owner's' Association. Although this Agreement shall be binding
upon Developer's successors and assigns, this Agreement is not intended to, nor does it, nor
shall it at any tirne, create a contractual relationship between WWTS and any party other than
Developer, a Successor Developer and the DUC, for the benefit of the PPP Property Owners
Association. Only Developer, a Successor Developer and the DUC shall have the right to
enforce this Agreement or to make any claim or have any cause of action against WWTS
Property or any of its managerso members, employees or agents arising from or on account
of this Agreement. Developer may not assign this Agreement or any portion thereof to any
other person or entity, and any such attenipted assignment shall be void and of no effect
provided that; (i) Developer qhall be entitled, prior to creating the PPP Property Owners
Association, to assign this Agreement, in its entirety to a purchaser of all, but not less than
Developer or any such Successor Developer shall assign Developer's rights hereunder and
delegati Developer's duties hereunder to the DUC, and suclt assignee shall be recognized by
'- WWTS as Developer's successor-in-interest and shall succeed to the entirety of Developer's
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11.
contractual rights and obligations hereunder. Owners of a lot or unit or other portion of the
PPP Property shall be bound by the terms of this Agreement but shall have no direct^tights
to enforce thls Agreement or make any claim or have any cause of action against WWTS
under this Agreement. Subject to the terms and conditions of this Agreement, the DUC shall
at all times represent and be the only party entitled to act for the inilividual owners of the PPP
property and/or the PPP Property Owner$' Association, in furtherance of this Agreement or
the purposes hereof, and all actions of the DUC shall be binding upon such owners.
SySIe..m Management and Modi*ficqfioq. WWTS shall, while this Agreement remains in
effect, make all decisions regarding (a) the alieration, modification, reconstruction or
replacement of the wastewater treatment system and/or wastewater treatment plant, (b)
esiablishment of rates, tap fees, wastewater treatment charges, rules and regulations and
future connections to the wastewater system (excluding existing commitments of WWTS)
which decisions shall be subject to and consistent with the terms of such agreements,
including this Agreement, between WWTS and Third Parties for whom WWTS provides
wastewater treatment services.
grganizat_ipg o-lgppcial District. WWTS also reserves the right, in its sole and absolute
discretion, to organize a special district and to assign its rights and delegate its duties
hereunder to such a special district, in which event all future waste water services and
operational activities shall be assumed by the special district. In connection with the
organization of such special district, Developer covenants on behalf of Developer and
Developer's heirs, successors and assigns, to reasonably support such organization, to
,easonably consent to such assignment and to lend all assistance reasonably required by -
rrrrlr'r$ :- ^^,.*^^ri^n thercrrrith nht..vithqtandins that the PPP Pronertv maV be. Within OrYY YY I L' lll VUIIllVVllWll lllwlvYvllrlr rluLvrrlrrdrurrsrrro r"er -"J '-'-J ''
witliout the boundaries of such special district; provided that the PPP Property is included
in the service area of such district or otherwise is assured of wastewater service from such
district on terms which are no less favorable to the PPP Property than the terms of this
Agreement except to the extent that terms applicable to CWS Property are also comparably
less favorable.
12.WWTS shall perform or cause to be performed
all maintenance, repairs, replacements,and monitoring of the wastewater treattnent
plant and all portions of the wastewater system, as the same may be expanded or modified
after the date hereof,the Developer Collection and the Main
which at
respect to the Developer Callection System, if and to the cxtent that
nshave been violated by Developer or Developer has been negligent
or untimely in performing Developer's obligations, WWTS, upon giving prior notice to
Developer may (but shall not be obligated to) enter upon the PPP Property to operate,
mqintain reneir renlace...9..r!q...'^-r.-""}
Developer's sole cost and ex
ofentry need be given.
elean and/or monitor the Developer Collection SYstenr at
pense; provided that, in the event of emergency, no prior notice
I 3, ConditiotrS Precgdqnt.to Pr-ovision of Servicg. Developer expressly acknowledges and agrees
'" ihut the following shall constitute conditions precedent to both WWTS's obligation to
Gi\CwS\wssteWrtar\stws.ryircA3rtlhr6v3 l.qpd Page 8 Of 13
provide the Wpstewater Service described herein and to WWTS's allowing any wastewater
taps to be connected on the PPP Property.
a. Ilermits. WWTS shall have obtained all necessary permits, licenses and ilpprovals
from all applicable governmental entities and/or regulatory agencies.
b. Assignment lo DUi. The Developer shall have assigned all of its rights and
delegated all of its obligations under this Agreement to the DUC, and the principal
document of assignment shall be recorded in the real property records of the County
of Garfield, State of Colorado.
Perform4npe by Develope,r. The Developer shall have performed or caused to be
p-rf"t*.d r*h u"G oilttions as may barequired by law, by this Agreement or as
may reasonably be required by WWTS's engineers, as necessary conditions to the
connection of taps on the PPP Property.
v.
l4 Lien Rights. Disponpection Righls and Other BiAhts of WWTS..
a. lgastewatg-ggrvice I,ien. In consideration of WWTS entering into this Agreement
and to secure the payment and performance of the obligations of Developer
hereunder, the Developer, on behalf of Developer and Developer's successors and
assigns, hereLry grants to WWTS and its successors and assigns a perpetual lien upon
the PPP Property (the "Wastewater Service Lien"). The Wastewater Service Lisn.
shall run wiih the PPP Property and shall be binding upon and enforceable against
*
. the Developer and each and all of Developer's successors and assigns. After notice
to Deveioper and a 30-day right of cure by Developer, 1he Wastewater Service Lierr
may be foreclosed and/or executed or realized upon by WWTS as a mortgage, or by
any other rneans authorized under the applicable laws of the State of Colorado. The
Wastewater Service Lien shall be prior and superior to any other lien or encrtmbrance
upon the PPP Property, excepting only the lien for ad, valorem real property taxes;
provided that, the Wastewater Service Lien shall be junior to the lien of any first
mortgage or first deed of trust on any part of the PPP Property taken in good faith and
for value and perfected by recording in the office of the Clerk and Recorder of
Carfield County, Colorado, prior to the time of recording by or on behalf of WWTS
of a specific notice of lien claim.
b. Discofuiectiqn for DqfbUlt. WWTS expressly reserves, and the Developer hereby
grants to WWTS, theright, aff.er notice to Developer and failure of Developer to cure
the default by the expiration of the Cure Period as hereinafter defined, to disconnect
the PPP Property or any portion thereof from service or to discontinue providing
service to the PPP Property or any portion thereof in the event any charges, costs or
fees payable hereunder or under the Rules and Regu lati ons of wwTs are timelynot
thi A or WWTS ts Rules and
Regulations by Developer or
occupant of the PPP PropertY.
mean, for a monetary default,
Developer's successors or assigns or any bwner or
The "Cure Period" for purposes of this Section slrall
60 days and, for a rlon-tnonetary default, 60 days plus
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t5
16.
such additional time as Developer is diligently proceeding to cure the default, in each
case. In the event of reconnection to the system or the continuation of sdivice,
Developer shall pay ihe costs and expenses thereof.
c. IndividuaU-ien for Wq$tewater Charges-. Upon the platting of the PPP Property into
f
"g"ttV
,rUAivided lots or parcels of land, WWTS's remedies of a Wastewater Service
ffin and disconnection set forth above shall apply in each instance: (i) only to the
separate lot or parcel of land that is in default with respect to nonpayment of service
charg"s including capital costs provided that the DUC shall designate in wliting to
WW1S the pariicular lot or parcel that is in default, and (ii) to the entire PPP
Propertywithrespeetto any obligationsunderthis Agreementotherthan nonpayment
ofservice charges including capital costs'
R,pFse'!Vater. All wastewater resulting from ttre Wastewater Service provided to the PPP
Fioperty shall be returned to the Colorado River basin at WWTS's wastewater treatment
discharge point.
Notices. All notices, demands, requests or other communications to be sent by one party to
th" otlr"r hereunder or required by law shall be in writing and slrall be deenred to have been
validly given or served by delivery of the same in person to the addressee or by courier
delivery via any recognized overnight air courier service or by depositing the same in the
United States mail, pos{age prepaid, addressed as follows:
To: Waste Watet Treatment Services, LLC
cio Thouras J. TriPlat
2'1653 HighwaY 6 &.24, Box 100
Rifle, CO 81650
To:Cottonwood Springs LLC
c/o John R. Schenk
302 8th Street, Suite 310
Olenwood Springs, Colorado 81601
To; Western Slope Deveiopment Corp'
c/o Robert O. Klein
P.O. Box 1198
Rifle, Colorado 81650
All nolices, denranqls and requests shall be effective upon such personal delivery or one (l)
business day after being deposited with a nationally recognized overnight air courier service
rL--^ /a\ L..^:.^-^^ J^,,- ^f+-- ,{--^.ir in rLa I l-iterl State< mail Rv oivirrg 1o lhe otlrer nartv
hereto at least ten ( I 0) days' written notice thereof in accordance with the provisions hereof,
the parties hereto shail have the right from time to time to change their respective addresses'
17. Cov.erning Law. This Agreement and each term, covenant and condition hereof shall be
' go"*rn"A by and construed under the applicable laws of the State of Colorado.
Gl\C w s\wrrtcVilq\st*cr Se*lcn Agt@6onl v!.l wprt Page l0 Of I 3
t8
i9
Fenefit. This Agreement shall inure to the benefit of and be binding upon the parties lJereto
unO tt "it respective heirs, successors and assigns. This Agreement may not be modified or
amended except in a writing executed by the Parties hereto'
Forpp Majqprp. Any obligation of either party under this Agreement which is delayed or not
p"rioi*"d due to acts of God, strike, riot, or weather, failure to obtain labor and materials
ut u ,"uronable cost, inability to gain governmental or regulatory licenses, permits or
approvals, or any other reason beyond the control of the party, shall not constitute a default
hereunder and such obligation shall be performed within a reasonable time after the end of
such cause for delay or nonperformance.
Waiver. No consent orwaiver, (whetherexpress or implied), by any PartY, to or of 'any
Gach or default by the other in performance of a particular obligation under this contract
shall be. deemed or construed to be a consent to or waiver of any other breach or default in
performance. No failure on the part of any party to complain of any brpach or default by the
other in performance or to declare any other party in default, irrespective of how long such
failure continues, shall constitute a waiver of such party's rights hereunder. No waiver shall
be binding unless executed in writing by the party making the waiver.
Colts and A!3ptney's Fells. If any legal aotion or other proceeding is brought for the
*?oi""nt"nt of this Agreement, the prevailing party shalt be entitled to recover reasouable
attorney's fees and otliir costs incurred in such action or proceeding, in addition to an! other
_
relief to which such party may be entitled'
EUlite" Agree.mpnt. This Agreement constitutes the enlire understanding between the parties
hereto with respect to the subject matter hereof and all other prior agreements or
understandings shallbe deerned merged into this Agreement
Severability. If any provision of this Agreement or the application thereof to any person or
circumstances is held invalid, such invaiidity shall not affect other provisions or applications
of this Agreement which can be given effect without tlie invalid provision or application and
to this end, the provisions of this Agreement are declared to be severable.
Authgrity of.Parties. Developer is a Colorado corporation validly existing and in good
-t""dtt g *dir the laws of the State of Colorado. WWTS and CWS are limited liability
*o-p",ii*, validly existing and in good standing under the laws of the State of Colorado'
Each of the parties has the power and authority to own its properties and to carry on its
business as now conducted, and, except to the extent permits are required as provided above,
1as al I necessary power and authority to execute, deliver and perform this Agreement and any
other documents made or given in connection therewith and to be bound thereby'
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23
24
agreements for wastewater
to AS a "Thi rd Party"),which other
benefit vantageorad to
In the event WWTS shall enter into otlrer like or similar
wl another party party
agreement shall contain provlslons of materially greater
vely to the date
6:\C W S\W!$c Wsla\Scwct Sc*ice Agrrcmcnt vl I wpd
said Third Party this Agreement shal t,retro acti
Pagellof 13
. r^
STATE OF hu,r,ou^
couNrYorkg.g
The foregoing instrument was acknowledged before me on ttris 8d day of September,
2000, by Robert O. Klein as President of Western Slope Development Company. a Colorado
corporation
WITNESS my hand and official seal,
My commission expires: ,Af ogAn-l /ilA fr.
Notary Public
STATE OF COLORADO
COI-}NTY OF GARFIELD
ss.
)
)
)
)
)
)
ss.
The foregoing instrument was acknowledged before me on tfiis Lr* day qf Septembero
2000, by John R. Schenk as Manager of Cottonwood Springs LLC, a Colorado limited liability
company.
WITNFSS mv hand nnd nffir.ial seal.
Mycommissionexpires, gfulbo,w
AUn^tl Aa W
Notary Public 0
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