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2017-04-12_REVISION - C1981041
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2017-04-12_REVISION - C1981041
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Entry Properties
Last modified
4/13/2017 10:52:50 AM
Creation date
4/13/2017 10:22:34 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981041
IBM Index Class Name
Revision
Doc Date
4/12/2017
Doc Name
Motion in Limine and to Strike Contract Documents by Objector Fontanari Family Revocable Trust
From
James Beckwith
To
DRMS
Type & Sequence
TR69
Email Name
JRS
JHB
Media Type
D
Archive
No
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Snowcap had no duty to reclaim #71 Tract) but also asserts the December 15, 2015 <br />"Commitments" as a written agreement by Snowcap to make the repairs. By entering into these <br />Commitments (to do what Snowcap may not have any duty to perform under §§11, 13 or 25 of <br />the Purchase Agreement), Snowcap, under Fontanari's argument, voluntarily assumed the duty to <br />repair #71 Tract. Fontanari's claim of a right to such reclamation is thus based on the <br />Commitments and not on the 2003 Purchase Agreement. Moreover, the very language of the <br />Commitments would also suggest that the Commitments constitute a third -party beneficiary <br />agreement enforceable by Fontanari and/or Carey. Everett v. Dickinson Co., Inc. 929 P.2d. 10, <br />12 (Colo. App. 1996) (a third party may enforce the terms of contract when the contracting <br />parties have intended to confer a benefit upon said third party) Fontanari and Carey are <br />specifically named and are, arguably, the intended beneficiaries of Snowcap's voluntary <br />agreement with DRMS to make the repairs. Obviously, the Commitments impose an affirmative <br />duty to repair the lands. They do not contain any waiver by Fontanari of that duty and, thus, <br />cannot constitute a basis for claiming consent to a repair plan to which Fontanari (or Carey) has <br />objection. <br />Snowcap (and this Board should it choose to exercise powers it has not been granted by <br />the legislature) cannot avoid the jurisdictional defect raised by Fontanari by "cherry picking" <br />parts of the Purchase and Sale Agreement to justify extra jurisdictional action. Contracts must <br />be interpreted as a whole and in all their parts: to the end that all provisions must be reconciled <br />together. Pulte Home Corporation, Inc. v. Countryside Community Assoc., Inc. 382 P.M. 821, <br />826 (Colo. 2016) (holding that contracts must be interpreted as a whole seeking to harmonize all <br />parts together). <br />5 <br />
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