06-09-2004 TRAER CREEK-RP LLC AND TRAER CREEK METROPOLITAN DISTRICT CONVEYANCE OF ROADWAY TRACTRECORDING REQUESTED BY AND
WHEN RECORDED PLEASE RETURN TO:
Michael J. Repucci, Esq.
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, Colorado 80304
CONVEYANCE OF ROADWAY TRACT
THIS CONVEYANCE OF ROADWAY TRACT (this "Conveyance Agreement")
dated as of the 9th day of Tune 2004, is by and between TRAER
CREEK-RP LLC, a Colorado limited liability company ("Traer Creek"), whose address is P.O.
Box 640, Vail, Colorado 81658, on the one hand, and TRAER CREEK METROPOLITAN
DISTRICT, a quasi-municipal corporation and political subdivision of the State of Colorado
(the 'District"), whose address is 141 Union, Suite 150, Lakewood, CO 80228, on the other
hand.
RECITALS
WHEREAS, Traer Creek is the fee owner of all of that certain real property located in
the Town of Avon, County of Eagle, State of Colorado legally described as Tract A ("Tract A"),
Tract B ("Tract B"), , Tract D ("Tract D"), Tract E ("Tract E"), Tract F ("Tract F"), and Tract G
("Tract G"), The Village (at Avon) Filing 3, according to the plat thereof recorded
2004 at Reception No. of the Eagle County, Colorado C
real property records (the "Final Plat"). There is no Tract C on the Final Plat; and
WHEREAS, Tracts A, B, D, E, F and G are sometimes herein collectively referred to as
the "Tracts". There is no Tract C; and
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WHEREAS, the Tracts are subject to that certain Annexation and Development
Agreement, dated October 13, 1998, and recorded November 25, 1998, at Reception No. 677743
of the aforementioned real property records, as amended (the "Annexation A eement"); and
WHEREAS, the Tracts are subject to that certain that certain "Subdivision
Improvements Agreement," recorded
2004 at Reception No. &
of the Eagle County, Colorado real property records (the "SIA"), by and
among Traer Creek, the District, and the Town of Avon, a Colorado municipal corporation
("Avon"); and
WHEREAS, the Tracts are subject to the easements, covenants, restrictions and
encumbrances created by that certain Easements with Covenants and Restrictions Affecting
Land, dated as of 2004, and recorded
Reception No.
2004, at L
of the aforementioned real property records (the "ECR"); and
WHEREAS, the ECR contemplates that Traer Creek may or will convey fee title to, and
easement interests on, over, across upon and through, all or certain portions of Tracts A, B, D, E,
F and G to the District or to one or more other governmental or quasi-governmental entities
through one or more separate conveyances, and that following such conveyances, such entities
will thereafter construct and install such infrastructure improvements thereon and therein as may
be required in accordance with the terms and conditions of one or more subdivision
improvements agreements by and among Traer Creek, the constructing entity and Avon, and that
upon preliminary acceptance of the same by Avon pursuant to the terms of any such subdivision
improvements agreement, the constructing entity will operate, repair,, replace and maintain all
such infrastructure improvements; and
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WHEREAS, Traer Creek desires to make a conveyance to the District of fee title to
Tract D and a non-exclusive easement interest in and to the Tracts A, E and G Utility, Drainage,
Roadway Maintenance and Recreation Path Easements ("Tracts A, E and G Easements") as
contemplated by the ECR so that the District may construct and install the systems, facilities and
improvements required by the terms of the SIA within, on over, across and through such parcels,
and thereafter operate, repair, replace and maintain all such. infrastructure improvements as
contemplated by the ECR as modified and clarified by this Conveyance Agreement.
AGREEMENT
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree as follows:
1. Conveyance of Tract D to the District.
(a) (i) Subject to the terms and conditions of this Agreement, including
Traer Creek's reservation of rights as hereinafter described, Traer Creek does hereby sell and
quitclaim to the District, its successors and assigns, fee title to Tract D with all of its
appurtenances for so long as Tract D is used for the location, construction and maintenance of
public roadways, natural open space areas, access, utility, drainage, and other infrastructure
improvements to be located within Tract D in accordance with the terms and conditions of the
SIA and the ECR (the "Tract D Improvements"), and no longer.
(ii) If Traer Creek believes Tract D has been abandoned by the District
or that Tract D is no longer being used for its intended purpose, Traer Creek shall give written
notice to the District. If the District agrees with Traer Creek, the District shall promptly execute
all documents necessary to reconvey Tract D to Traer Creek. However, if the District disagrees
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with Traer Creek's assertion that Tract D has been abandoned by the District or that Tract D is
no longer being used for its intended purpose, the District shall give Traer Creek written notice
stating that the District requires arbitration of the dispute, such notice to be given within forty-
five (45) days following the District's receipt of Traer Creek's notice. The dispute shall be
settled by binding arbitration before any retired Colorado Supreme Court Justice or Colorado
Court of Appeals Judge employed by the Judicial Arbiter Group in Denver, Colorado ("JAG').
The arbitration proceeding shall be conducted in accordance with the Colorado Rules of Civil
Procedure then in effect. Each party to the dispute shall deliver to the other party, within ten (10)
days of the District's demand for arbitration, a complete, concise statement of issues to be
arbitrated. Traer Creek and the District shall select a single JAG arbitrator in accordance with the
applicable rules of JAG. The arbitration proceedings shall be conducted at JAG in Denver,
Colorado, and shall continue in the absence of any party who, after notice given pursuant to this
Section, fails to participate in the proceedings. The decision of the arbitrator shall be final and
binding upon the parties to this Agreement whether such party(ies) participate in the proceedings
or not, and a judgment thereon may be entered in any court having jurisdiction.
(iii) The parties acknowledge and agree that Traer Creek hereby retains
a possibility of reverter from Traer Creek's conveyance of a fee simple determinable interest to
the District. It is the intent of the parties that Traer Creek may transfer, convey or assign its
possibility of reverter hereby reserved to any person or entity and that such person or entity shall
have the right and power to enforce the possibility of reverter against the District and its
successors and assigns, regardless of any applicable law to the contrary. In addition to Traer
Creek's reservation of a possibility of reverter in Tract D, Traer Creek hereby reserves a
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perpetual, non-exclusive, fully assignable easement in and to Tract D for the purposes and
subject to the terms and conditions described in Section 6 hereof. Subject to the foregoing
reservations and the other terms and conditions of this Agreement, Tract D shall be used only for
the location, construction and maintenance of the Tract D Improvements, and for the purposes
described in Section 2 hereof as contemplated in the Service Plan, but not otherwise, and that all
such use shall conform to the requirements of the Annexation Agreement, the SIA and the ECR,
as applicable.
(b) Grant of Tracts A E and G Easements to the District.
(i) Subject to the terms and conditions of this Agreement, Traer Creek
does hereby sell and quit claim to the District, its successors and assigns, and the District hereby
accepts, a non-exclusive easement interest in and to the Tracts A, E and G Easements as
described in, and subject to, the terms of the ECR. Notwithstanding any subsequent conveyance
of fee title to Tract A, Tract E and/or Tract G to any person or entity, the owner(s) of the Tracts
A, E and G Easements reserve the sole and exclusive right to grant to others (or consent in
writing to any grants made by the fee owner of Tract A, Tract E and/or Tract G) the right to use
any of the systems, facilities and improvements now or hereafter constructed over, upon, across
and through Tract A, Tract E and/or Tract G within the Tracts A, E and G Easements (the
"Easement Improvements"). The improved surfaces of the Tracts A, E and G Easements hereby
established and granted shall only be used for the purposes for which they were constructed.
Without limiting the generality of the foregoing and except as may be required for the
maintenance, repair or replacement of subsurface infrastructure improvements, the improved
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surfaces of the easements may only be used for pedestrian and recreational ingress, egress and
access purposes.
(ii) If Traer Creek believes the Tracts A, E and G Easements have
been abandoned by the District or that the Tracts A, E and G Easements are no longer being used
for their intended purpose, Traer Creek shall give written notice to the District. If the District
agrees with Traer Creek, the District shall promptly execute all documents necessary to release
and terminate the Tracts A, E and G Easements to Traer Creek. However, if the District
disagrees with Traer Creek's assertion that the Tract A, E and G Easements have been
abandoned by the District or that such easements are no longer being used for their intended
purpose, the District shall give Traer Creek written notice stating that the District requires
arbitration of the dispute, such notice to be given within forty-five (45) days following the
District's receipt of Traer Creek's notice. The dispute shall be settled by binding arbitration
before any retired Colorado Supreme Court Justice or Colorado Court of Appeals Judge
employed by the Judicial Arbiter Group in Denver, Colorado ("JAG"). The arbitration
proceeding shall be conducted in accordance with the Colorado Rules of Civil Procedure then in
effect. Each party to the dispute shall deliver to the other party, within ten (10) days of the
District's demand for arbitration, a complete, concise statement of issues to be arbitrated. Traer
Creek and the District shall select a single JAG arbitrator in accordance with the applicable rules
of JAG. The arbitration proceedings shall be conducted at JAG in Denver, Colorado, and shall
continue in the absence of any party who, after notice given pursuant to this Section, fails to
participate in the proceedings. The decision of the arbitrator shall be final and binding upon the
parties to this Agreement whether such party(ies) participate in the proceedings or not, and a
judgment thereon may be entered in any court having jurisdiction.
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2. Purposes of Conveyance; Remedies for Failure to Construct Maintain or Repair.
The purpose of the conveyances described in Section 1 is to permit the District, for the benefit of
all of the real property depicted on the Final Plat, but not otherwise, to construct, install,
stabilize, operate, use, maintain, repair, replace and/or remove the Tract D Improvements and the
Easement Improvements as contemplated by the Annexation Agreement, the ECR and the SIA.
Without limiting the generality of the foregoing, the District is affirmatively obligated to
construct the Tract D Improvements and the Easement Improvements within the time and subject
to all of the other terms and conditions of the SIA. Following preliminary acceptance of the
Tract D Improvements by Avon, the District shall thereafter be responsible for the maintenance,
repair and replacement of the Tract D Improvements, including all warranty obligations relating
to the same pursuant to the terms of the SIA. Following preliminary acceptance of the Easement
Improvements by Avon, the District shall thereafter be responsible for the maintenance, repair
and replacement of the Easement Improvements, including all warranty obligations relating to
the same pursuant to the terms of the SIA. In the event the District fails or refuses to construct
and install and thereafter operate, use, maintain, repair, replace and/or remove all of the Tract D
Improvements or the Easement Improvements as contemplated by and in accordance with the
terms and conditions of the Annexation Agreement, the ECR and the SIA, subject to the terms of
Section 1 of.this Conveyance Agreement, Traer Creek shall only be entitled to those remedies
against the District which are available to any other District resident, at law or in equity,
notwithstanding anything to the contrary contained in the ECR.
3. Maintenance and Regulation of Tract D Improvements and Easement
Improvements. From and after the conveyances described in Section 1, the District shall, at its
sole cost and expense, but only to the extent it has funds legally available therefor, maintain the
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Tract D Improvements and the Easement Improvements and keep the same in good order,
condition, repair and appearance, including performing all necessary work required to provide
convenient and safe access to and within the real property depicted on the Final Plat, maintaining
such improvements reasonably free from ice, snow, dirt, debris and obstructions, and performing
all necessary work required so that such improvements collect, detain and transmit over, upon,
across and through the Tracts all on- and off-site drainage in accordance with the approved
design of the infrastructure improvements relating to the same.
4. Rules and Regulations. From and after the conveyances described in Section 1,
the District may adopt, amend and enforce rules and regulations (the "Rules and Regulations")
relating to Tract D and the Tracts A, E and G Easements. The Rules and Regulations adopted by
the District shall achieve the following: (a) provide for the safety of all persons and all of the
real property depicted on the Final Plat, (b) prohibit nuisances, and (c) protect against damage to
the Tract D Improvements, and the Easement Improvements. Each of the foregoing objectives is
intended to provide for the public health, safety and welfare. Upon adoption, the Rules and
Regulations, including any amendments thereto from time to time, shall be a public document
and shall be open to inspection during reasonable business hours.
5. No Dedication. Nothing contained in this Conveyance Agreement shall be
deemed to be a dedication of any portion of any of the Tracts, or any interest in any of the Tracts,
other than the dedication of fee title to Tract D as set forth above, to any person or entity for the
general public or for any public purpose whatsoever, it being the intent of the parties that all of
the Tracts and all interests therein shall continue to be private unless and until the fee owner or
owners of such Tracts, at their sole option and election, complete the dedication of the Tracts or
any portion thereof to an eligible governmental or quasi-governmental entity or other third party,
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in accordance with all applicable laws, rules, regulations and ordinances.
6. Reservation and Grant of Rights.
(a) Traer Creek hereby reserves for itself and its successors and assigns the
following perpetual rights in and to Tract D and the various land parcels over, upon, across and
through which the easements created and reserved by the ECR and this Conveyance Agreement
are located, and all such rights shall be exercisable by Traer Creek, its successors and assigns at
any time and from time to time:
(1) Rights to lateral and subjacent support for property in which Traer
Creek either owns or hereafter acquires an interest, adjoining, above, or in the vicinity of Tract D
and the easements created and reserved by the ECR and this Conveyance Agreement.
(ii) Rights to locate, install, construct, maintain, remove or relocate in,
on, into, through, over, under and across Tract D and the easements created and reserved by the
ECR and this Conveyance Agreement, at points or in locations determined by Traer Creek,
utility lines, pipes, ducts, conduits, wires, meters, switchgear valves and connections of all kinds
and other similar devices, and all facilities, accessories or additions related or incidental thereto,
subject, however, to reasonable Rules and Regulations uniformly applied with respect to road
cuts and utility connections.
(iii) Rights to locate, install, construct, remove or relocate in, to,
through, over, under and across Tract D and the easements created and reserved by the ECR and
this Conveyance Agreement, at points or in locations determined by Traer Creek, bridges,
overpasses, tunnels, columns, piers, pylons, caissons, beams or other members supporting Traer
Creek's improvements located above or under Tract D and the easements created and reserved by
the ECR and this Conveyance Agreement, and for all other purposes which do not interfere with
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the reasonable use of said Tract, easements, the Tract D Improvements and the Easement
Improvements, subject, however, to reasonable Rules and Regulations uniformly applied; and,
provided that such improvements shall allow reasonable clearance above Tract D and the
easements created and reserved by the ECR and this Conveyance Agreement for pedestrian and
vehicular access. Unless otherwise approved by the District, a clearance of at least sixteen feet
six inches (16' 6") above the surface of Tract D and the easements created and reserved by the
ECR and this Conveyance Agreement shall be considered reasonable clearance for the purposes
of this Section 6.
(iv) Rights to locate, install, construct, remove or relocate in, on, onto,
through, over, under and across Tract D and the easements created and reserved by the ECR and
this Conveyance Agreement, and to connect into or with the Tract D Improvements and the
Easement Improvements such other similar roadway improvements, pedestrian walkways,
drainage improvements and utilities at such points or in such locations as determined by Traer
Creek from time to time so long as the location; installation, construction, removal or relocation
of such roadway improvements, pedestrian walkways, drainage improvements and utilities
conforms with the Avon Town Code and does not interfere with the operation of the Tract D
Improvements and the Easement Improvements, and subject, however, to reasonable Rules and
Regulations uniformly applied.
(b) With respect to Section 6(a) above, (i) such reserved rights shall not
diminish in any material respect the ability of persons authorized herein to use Tract D and the
easements created and reserved by the ECR and this Conveyance Agreement to obtain access
thereto, and (ii) Traer Creek shall pay all of the costs relating to exercise of such reserved rights,
including but not limited to, repairing any damage caused to the Tract D Improvements and the
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Easement Improvements by exercise of such reserved rights.
(c) Traer Creek hereby covenants with the fee owner or owners of the Tracts
and their respective successors and assigns, that each shall have the perpetual rights to lateral and
subjacent support for property in which such fee owner either owns an interest or hereinafter
acquires an interest, adjoining, above or in the vicinity of the Tracts and the easements created
and reserved by the ECR and this Conveyance Agreement, and such rights shall be exercisable
by such fee owners, and their respective successors and assigns at any time and from time to
time.
7. No Merger or Extinguishment of Easements. In no event shall Traer Creek's
conveyance to the District of fee title to Tract D or an easement interest in the Tract A, E and G
Easements result in or be deemed to cause an extinguishment of any of the terms, covenants,
rights, easements and restrictions contained in the ECR and this Conveyance Agreement, or be
deemed to cause a merger of any of the terms, covenants, rights, easements and restrictions
contained in the ECR and this Conveyance Agreement into fee title to Tract D or the easement
interest in the Tract A, E and G Easements. Traer Creek reserves the sole and exclusive right to
grant to the District by separate instrument all or any portion of Traer Creek's interest in the
easements created and reserved by the ECR and this Conveyance Agreement which encumber
the Tracts.
8. Third Parties' Use of Utilities. The District may allow other parties located
within the boundaries of the District ('District Residents") to use the Tract D Improvements and
the Easement Improvements, subject, however, to the Rules and Regulations. The District may
also allow other parties not located within the boundaries of the District ("Non-District
Residents") to use the Tract D Improvements and the Easement Improvements subject to the
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Rules and Regulations, and so long as such use does not result in any diminution or impairment
of the ability of the District to serve the District's residents for reasonably anticipated or
potential development and uses of property located within the District's boundaries, and so long
as such use does not result in any diminution or impairment of District collateral pledged for
repayment of any District debt obligation. District Residents and Non-District Residents shall be
subject to the Rules and Regulations related to the payment of costs related to connecting to the
Tract D Improvements and the Easement Improvements, and are responsible for repairing any
damage caused to such improvements as a result of such connections.
9. Parties in Interest. This Conveyance Agreement shall inure only to the benefit of
Traer Creek, the District and the fee owner or owners of the Tracts, and their permitted
successors and assigns. The rights of persons authorized to use the Tracts and the easements
created and reserved by the ECR and this Conveyance Agreement are limited as now and
hereafter set forth in the Rules and Regulations, and are subject to further modification if this
Conveyance Agreement is amended pursuant to Section 13 hereof. Nothing contained in this
Conveyance Agreement shall confer upon any person or entity other than Traer Creek, the
District and the fee owner or owners of the Tracts any right to enforce this Agreement. Traer
Creek, the District and the fee owner or owners of the Tracts, jointly, shall have the sole right,
power and authority to amend, supplement or modify this Conveyance Agreement, but any
attempted amendment, supplement or modification of this Conveyance Agreement by any fee
owner or fee owners of the Tracts shall be subject to the prior written consent of Traer Creek,
which consent may be withheld by Traer Creek in its sole and absolute discretion.
10. Subject to Annual Budget and Appropriation. The parties herein do not intend
hereby to create a multiple-fiscal year direct or indirect debt or other financial obligation in any
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form whatsoever of any fee owner of any portion of the Tracts who is considered to be a public
or quasi-public entity pursuant to the Tabor Amendment of the Colorado Constitution. The
performance of the obligations of any fee owner of any portion of the Tracts who is considered
to be a public or quasi-public entity requiring budget and appropriation of funds are subject to
annual determinations by the governing body of such fee owner in its sole discretion.
11. Severability. In the event that any provision of this Conveyance Agreement is
held to be illegal, invalid or unenforceable under present or future laws, then (a) such provision
shall be fully severable and this Conveyance Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision were not a part hereof, (b) the remaining
provisions of this Conveyance Agreement shall remain in full force and effect and shall not be
affected by such illegal, invalid or unenforceable provision or by its severance from this
Conveyance Agreement, and (c) there shall be added automatically as part of this Conveyance
Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as
may be possible and still be legal, valid and enforceable.
12. Specific Enforcement. Traer Creek and the District agree that in certain situations
monetary damages for breach of the terms and conditions contained in this Agreement would be
extremely difficult to determine, and possibly inadequate in any event. Therefore, all terms and
conditions hereof shall be specifically enforceable in addition to any other remedy available to a
non-defaulting party at law or in equity, subject to the limitations set forth in Section 2.
13. Entire Agreement; Amendment. This Conveyance Agreement contains the entire
agreement of the parties relating to the matters herein set forth, and may not be amended,
modified or supplemented nor any provisions hereof waived, verbally or by any course of
dealing, however long continued, but only by an instrument in writing executed by Traer Creek
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and the fee owner or owners of Tract D and/or Tracts A, E or G, as applicable.
14. Attorneys' Fees and Costs. In the event of any action or legal proceeding
between Traer Creek and any fee owner or fee owners of the Tracts arising under this
Conveyance Agreement, or concerning the meaning or interpretation of any provisions contained
herein, the prevailing party shall be awarded its costs and expenses incurred in such action or
proceeding through all appeals, including, without limitation, attorneys' fees, in addition to any
other relief or award granted in such action or proceeding.
15. Notice. Any notice hereunder shall be in writing and shall be served by overnight
delivery or certified mail, return receipt requested, postage prepaid, addressed to the respective
addresses of the parties as follows:
If intended to Traer Creek:
Physical Address:
Traer Creek-RP LLC
0322 Beaver Creek Boulevard
Avon, Colorado 81620
_Mailing Address:
Traer Creek-RP LLC
P.O. Box 640
Vail, Colorado 81658
with a copy to:
Michael J. Repucci, Esq.
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, Colorado 80301
If intended to the District:
Traer Creek Metropolitan District
141 Union Blvd., Suite 150
Lakewood, CO 80228
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with a copy to:
Darlene Sisneros
McGeady Sisneros, P.C.
1675 Broadway, Suite 2100
Denver, CO 80202
16. Conflict Between ECR and Conveyance Agreement In the event of an express
conflict or inconsistency between the provisions of the ECR and this Conveyance Agreement,
the terms of this conveyance Agreement shall control.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[SIGNATURE PAGE TO CONVEYANCE OF ROADWAY TRACT]
IN WITNESS WHEREOF, Traer Creek has executed and delivered this Conveyance
Agreement as of this AIL day of .Tung , 2004, but this Agreement shall be effective
for all purposes as of the day and year first set forth above.
TRAER CREEK-RP LLC,
a Colorado limited liability company
By: TRAER CREEK LLC, a Colorado limited
liability company, its Manager
lm, Manager
STATE OF Otm"Ksll) us Lin )
) SS
COUNTY OF
The foregoing instrument was acknowledged before me this q4-1-1 day of JyN'E
2004, by Magnus Lindholm, as Manager of TRAER CREEK LLC, a Colorado limited
liability company and Manager of TRAER CREEK-RP LLC, a Colorado limited liability
company, on behalf of the companies.
In witness whereof, I have hereunto set
year last above written.
My coirnmission expires:
affixed my notary seal t day and
N
\Z -
ERIC
APPLEGATE
,OF .cg~
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The undersigned hereby accepts the foregoing conveyances and dedications and agrees to
be bound by all terms and conditions contained in this Conveyance Agreement.
ATTEST:
6ErSecretary
TRAER CREEK METROPOLITAN
DISTRICT, a asi, murxcip corporation and
political sub ision of/the Mate of Colorado
By:
STATE OF COLORADO )
) ss
COUNTY OF C c~ )
The foregoing instrument was acknowledged before me this q day of ru-, 2004,
by: Dave Kautz, as President, and Eric E. Applegate, as Secretary, of Traer Creek Metropolitan
District, a quasi-municipal corporation and political subdivision of the State of Colorado, on
behalf of the corporation.
Witness my hand and official seal.
Notary Public
My commission expires:
a-I-S-6
fA/q}•
A G : Q0
V 81.E P
OF co
MyCMvrjWw Expims tyW006
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