02-02-2011 AMENDED SETTLEMENT AGREEMENT-05CW262 AND 05CW263 01-04-2011AMENDED SETTLEMENT AGREEMENT
TOWN OF AVON OPPOSITION TO CASE NO. 05CW262
(TOWN OF MINTURN APPLICATION FOR CHANGES OF WATER RIGHTS)
AND CASE NO. 05CW263
(TOWN OF MINTURN APPLICATION FOR NEW GROUNDWATER RIGHTS)
This Amended Settlement Agreement (the "Amendment "), dated February _,
2011, is made by and between Applicant, Town of Minturn ( "Minturn") and Opposers, Ginn
Battle South, LLC; Ginn Battle North, LLC; Ginn Battle One, Ltd., LLLP; Ginn -LA Battle One
A, LLC (together "Battle Mountain Entities ") and the Town of Avon ( "Avon ").
WHEREAS, the Settlement Agreement in Case Nos. 05CW262 and 05CW263,
dated June 8, 2010, between Minturn, Battle Mountain Entities and Avon (the "Avon Settlement
Agreement ") adopted and incorporated the terms of the Settlement Agreement in Case No.
05CW262, dated May 6, 2010, between Minturn, Battle Mountain Entities and Arrowhead
Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District,
Eagle Park Reservoir Company, Eagle River Water & Sanitation District, Eagle -Vail
Metropolitan District, Edwards Metropolitan District, Holland Creek Metropolitan District, Red
Sky Ranch Metropolitan District, Upper Eagle Regional Water Authority, and Vail Associates,
Inc. (together, "Arrowhead et al. ") (the "262 Settlement Agreement ") and the Settlement
Agreement in Case No. 05CW263, dated May 6, 2010, between Minturn, Battle Mountain
Entities and Arrowhead et al. (the "263 Settlement Agreement ").
WHEREAS, Minturn, Battle Mountain Entities and Arrowhead et al. amended
certain terms in the 262 Settlement Agreement by entering into the Amendment to Settlement
Agreement in Case No. 05CW262 dated February _, 2011 (the "Amended Arrowhead
Settlement Agreement ");
WHEREAS, Minturn, Battle Mountain Entities and Avon desire to amend the
Avon Settlement Agreement to adopt and incorporate the terms contained in the Amended
Arrowhead Settlement Agreement.
NOW THEREFORE, the parties to this Amendment hereby stipulate and agree
as follows:
1. The terms of the Amended Arrowhead Settlement Agreement, attached as
Exhibit A hereto, are hereby adopted and incorporated as terms of this Amendment.
2. With the exception of the terms and conditions explicitly described in this
Amendment, all terms and conditions of the Avon Settlement Agreement shall remain
unchanged and in full force and effect.
3. This Amendment may be simultaneously executed in any number of
counterparts, each of which shall be deemed original but all of which constitute one and the same
Amendment. A facsimile signature to this Amendment shall be deemed an original and binding
upon the parties to this Amendment.
4. This Amendment constitutes the entire understanding of all parties with
respect to the Avon Settlement Agreement and there are no provisions other than those set forth
above. Any changes in this Amendment shall be made in writing and signed by both parties in
accordance with required contracting procedures before the same shall be effective.
BY SIGNATURE of their authorized representatives below, the parties enter into this
Amendment as of the date first written above.
(Signature page to follow]
2
TOWN OF MINTURN
FAA — / i.
BATTLE MOUNTAIN ENTITIES
By:
Battle South, LLC (formerly known as Ginn Battle South, LLC }, Battle North, LLC (formerly
known as Ginn Battle North, LLC); Battle One Developer, LLLP (formerly known as Ginn -LA
Battle One, Ltd., LLLP); Battle One A Developer, LLC (formerly known as Ginn -LA Battle One
A, LLC)
TOWN OF AVON
By:
[Signature page to Amended Settlement Agreement]
5016439 2.DOC
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
MEMORANDUM
TO: Avon Town Council
Larry Brooks, Town Manager
Justin Hildreth, Town Engineer
Eric Heil, Town Attorney
FROM: Jay Montgomery, Esq.
Will Stenzel, Esq.
Re: Petitions to Correct Substantial Errors in Case Nos. 05CW262 and
07CW225, District Court, Water Division 5 (Town of Minturn and Ginn
entities Applications)
DATE: January 4, 2011
As you recall, Avon entered into stipulated settlements in the four Water
Court cases concerning the legal water supply for the Town of Minturn and the Battle
Mountain Development. The Court subsequently entered final decrees in these cases and
considered these cases closed. Recently, however, Minturn informed us that Minturn
seeks to change the decrees entered in two of these cases, Case Nos. 05CW262 and
07CW225. More specifically, Minturn seeks to petition the court to "correct substantial
errors" in the decrees as they were entered. The proposed petitions are attached as
Exhibit A. Minturn has not yet filed the petitions. As we explain below, we do not
recommend that Avon oppose the petitions.
We have reviewed the proposed changes, and we do not believe these
changes will injure Avon's water rights. The two changes are as follows: (1) Minturn
proposes to change the monthly limitations on the consumptive use allowed to the
Minturn Water System Ditch and the Minturn Well Nos. 1 and 2 (collectively, "Minturn
Ditch ") water rights; and (2) Minturn proposes to treat April as a winter month for
purposes of calculating the consumptive use allowed to the Minturn Ditch water rights.
We will discuss these changes in turn.
I. Petition to Re- Allocate Consumptive Use allowed to the Minturn Ditch
Water Rights Between the Months
A major issue in these cases was how much consumptive water use is
attributable to the Minturn Ditch water rights. This was an important determination
because the senior Minturn Ditch water rights are senior to many downstream water
rights, including some of Avon's water rights. Therefore, expanding the use of these
water rights beyond their historical use could injure downstream water rights, including
Avon's. The Minturn Ditch did not originally include a volumetric or consumptive use
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 2
limitation (older water court decrees rarely included such limitations). However, all
water rights include an implied limitation to the amount of water use and type of use
originally contemplated by the appropriators of the rights. In these cases, the parties
negotiated an annual limit on consumptive use attributable to the Minturn Ditch water
rights of 38 acre -feet. The parties also negotiated monthly limitations on the
consumptive use attributable to the Mintum Ditch water rights.
Minturn does not seek to change the overarching annual 38 acre -feet limit.
Rather, Minturn seeks to change the decreed monthly limitations on the Minturn Ditch
water rights. Minturn's rationale for this change is that there was a misunderstanding
between the Eagle River Water and Sanitation District and Minturn's engineers over
Minturn's monthly water usage. Minturn's engineers believed the monthly water usage
figures provided by the District corresponded to actual water usage, i.e. the water usage
figure for March indicated the amount of water used by Minturn in March. Instead, the
figures apparently corresponded to billed water usage, i.e. the water usage figure for
March indicated the amount of water used by Minturn in February. As a result, Minturn
claims that the monthly consumptive use limitations on the Minturn Ditch are incorrectly
offset by a month. The following table shows the specific changes to the monthly
consumptive use limits proposed in the petitions by Minturn:
Month
Decrees as Entered
Proposed Revision
January
0.75 acre -feet
0.75 acre -feet
February
0.75 acre -feet
0.75 acre -feet
March
0.75 acre -feet
0.75 acre -feet
April
1.5 acre -feet
1.0 acre -feet
May
5.0 acre -feet
3.5 acre -feet
June
5.0 acre -feet
9.75 acre -feet
July
10.0 acre -feet
11.5 acre -feet
August
10.0 acre -feet
8.5 acre -feet
September
7.0 acre -feet
5.0 acre -feet
October
4.0 acre -feet
2.25 acre -feet
November
0.75 acre -feet
0.75 acre -feet
Minturn also proposes to increase the cumulative consumptive use limit allowed for the
months of June, July, and August from 22.5 acre -feet to 27.5 acre -feet.
You will note that the sums of both the previously decreed and proposed monthly limits
are greater than the annual limit (although the sum of the proposed limits is one acre -foot
lower than the sum of the previously decreed monthly limits). This is because the
purpose of the monthly limits is different than the overarching annual consumptive use
cap. The monthly limits are intended to mimic the atp tern of historical consumptive use
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 3
of the Minturn Ditch, which varied from year to year. Therefore, these monthly limits
provide Minturn with some leeway to use more water from the Minturn Ditch water right
in some months and less in other months. The annual limit is intended to provide a cap
on the annual consumptive use allowed for the Minturn Ditch water right. The monthly
and annual limits are independent of each other. For example, if Minturn used 38 acre -
feet of consumptive use under the Minturn Ditch water right by October, Minturn would
not be able to consume any additional water pursuant to the Minturn Ditch for the
remainder of the year. This is so despite the amounts of the monthly limits for November
and December.
In our opinion, Minturn's proposed changes to the monthly consumptive
use limits will not injure Avon's water rights. This is because the overarching annual
limit of 38 acre -feet remains in place, and because the new monthly limits do not vary so
substantially from the decreed monthly limits to cause injury to Avon's water rights. We
therefore do not recommend opposing Avon's petition to change the decreed monthly
consumptive use limits. Avon may consider requesting Les Botham, P.E. to review the
proposed changes prior to agreeing with our recommendation. However, because the
proposed changes are due to mistakes made regarding the existing engineering, we are
confident Mr. Botham would also agree that the changes will not injure Avon's water
rights.
II. Petition to Treat April as a Winter Month for Purposes of Calculating
Consumptive Use Attributable to the Minturn Ditch Water Rights
Again, Minturn's second proposed change is to treat April as a winter
month for purposes of calculating Minturn's consumptive use attributable to the Minturn
Ditch. The consumptive use for the Minturn Ditch water rights is calculated differently
for summer and winter months because these water rights are considered to be used for
irrigation only in the summer. Irrigation consumes much more water than in -house water
uses, and therefore the parties to these cases agreed that the portion of water used during
the summer months should be considered to be 85% consumed. The parties agreed that
the portion of water used during the winter months should be considered to be 5%
consumed.
According to Minturn, the engineering reports prepared for these cases
treated April as a winter month because there is little to no irrigation in Minturn during
April. Our review of the engineering reports confirms Minturn's assertion. However, the
settlement agreements and decrees entered in these cases treat April as a summer month,
and therefore assumed that 85% of the April Minturn Ditch diversions were.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 4
Minturn's petition to treat April as a winter month, if approved by the
Court, would result in less water being treated as consumed by Minturn in April. As a
result, Minturn will be able to divert a little more water pursuant to the Minturn Ditch
water rights, because a smaller percentage of this water will be considered consumed in
April.
Because treating April as a winter month is consistent with the
engineering reports supporting Minturn's Water Court cases, it is our opinion that Avon's
water rights will not be injured by this proposed change. We therefore do not
recommend opposing Avon's petition to treat April as a winter month for purposes of
calculating the consumptive use attributable to the Minturn Ditch water rights. Again,
Avon may consider requesting Les Botham, P.E. review the proposed changes prior to
agreeing with our recommendation. However, because the proposed changes are due to
mistakes made when drafting the settlement agreements and decrees, we are relatively
confident Mr. Botham would also agree that the changes will not injure Avon's water
rights.
III. Amendment of the Settlement Agreements
As you know, Avon entered into a settlement agreement with Minturn and
the Battle Mountain entities regarding Case No. 05CW262 prior to entering into a
stipulated settlement of Avon's opposition to the case. This settlement agreement is
attached as Exhibit B. The purpose of Avon's settlement agreement was to afford Avon
party status to the settlement agreements entered into between Minturn, the Battle
Mountain entities, Eagle River Water & Sanitation District, Upper Eagle Regional Water
Authority, and other parties (the "May Settlement Agreements "). The May Settlement
Agreements include the original decreed monthly allocation of consumptive use
attributable to the Minturn Ditch. The May Settlement Agreements also treat April as a
summer month for purposes of calculating the percentage of water consumed by
Minturn's water use pursuant to the Minturn Ditch water rights.
Our original informal recommendation to Avon was not to request
amendment of Avon's settlement agreement in these cases. This was due to the time and
expense involved in amending the underlying May Settlement Agreements. However,
we subsequently learned from Minturn's attorneys that the May Settlement Agreements
will be amended. Therefore, we now recommend that we request that Minturn agree to
revise Avon's settlement agreement to be consistent with the contemplated amendment of
the May Settlement Agreements.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 5
In conclusion, we recommend that Council not oppose Minturn's Petitions to Correct
Substantive Errors and direct counsel to request Minturn to draft amendments to Avon's
settlement agreement in Case No. 05CW262 consistent with the changes proposed by the
petitions for signature by the Mayor or Mayor Pro -Tern of Avon.
AMENDED SETTLEMENT AGREEMENT
TOWN OF AVON OPPOSITION TO CASE NO. 05CW262
(TOWN OF MINTURN APPLICATION FOR CHANGES OF WATER RIGHTS)
AND CASE NO. 05CW263
(TOWN OF MINTURN APPLICATION FOR NEW GROUNDWATER RIGHTS)
This Amended Settlement Agreement (the "Amendment "), dated February _,
2011, is made by and between Applicant, Town of Minturn ( "Minturn ") and Opposers, Ginn
Battle South, LLC; Ginn Battle North, LLC; Ginn Battle One, Ltd., LLLP; Ginn -LA Battle One
A, LLC (together "Battle Mountain Entities ") and the Town of Avon ( "Avon ").
WHEREAS, the Settlement Agreement in Case Nos. 05CW262 and 05CW263,
dated June 8, 2010, between Minturn, Battle Mountain Entities and Avon (the "Avon Settlement
Agreement ") adopted and incorporated the terms of the Settlement Agreement in Case No.
05CW262, dated May 6, 2010, between Minturn, Battle Mountain Entities and Arrowhead
Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District,
Eagle Park Reservoir Company, Eagle River Water & Sanitation District, Eagle -Vail
Metropolitan District, Edwards Metropolitan District, Holland Creek Metropolitan District, Red
Sky Ranch Metropolitan District, Upper Eagle Regional Water Authority, and Vail Associates,
Inc. (together, "Arrowhead et al. ") (the "262 Settlement Agreement ") and the Settlement
Agreement in Case No. 05CW263, dated May 6, 2010, between Minturn, Battle Mountain
Entities and Arrowhead et al. (the "263 Settlement Agreement ").
WHEREAS, Minturn, Battle Mountain Entities and Arrowhead et al. amended
certain terms in the 262 Settlement Agreement by entering into the Amendment to Settlement
Agreement in Case No. 05CW262 dated February _, 2011 (the "Amended Arrowhead
Settlement Agreement ");
WHEREAS, Minturn, Battle Mountain Entities and Avon desire to amend the
Avon Settlement Agreement to adopt and incorporate the terms contained in the Amended
Arrowhead Settlement Agreement.
NOW THEREFORE, the parties to this Amendment hereby stipulate and agree
as follows:
1. The terms of the Amended Arrowhead Settlement Agreement, attached as
Exhibit A hereto, are hereby adopted and incorporated as terms of this Amendment.
2. With the exception of the terms and conditions explicitly described in this
Amendment, all terms and conditions of the Avon Settlement Agreement shall remain
unchanged and in full force and effect.
3. This Amendment may be simultaneously executed in any number of
counterparts, each of which shall be deemed original but all of which constitute one and the same
Amendment. A facsimile signature to this Amendment shall be deemed an original and binding
upon the parties to this Amendment.
A
4. This Amendment constitutes the entire understanding of all parties with
respect to the Avon Settlement Agreement and there are no provisions other than those set forth
above. Any changes in this Amendment shall be made in writing and signed by both parties in
accordance with required contracting procedures before the same shall be effective.
BY SIGNATURE of their authorized representatives below, the parties enter into this
Amendment as of the date first written above.
[Signature page to follow]
2
TOWN OF MINTURN
By:
BATTLE MOUNTAIN ENTITIES
By:
Battle South, LLC (formerly known as Ginn Battle South, LLC), Battle North, LLC (formerly
known as Ginn Battle North, LLC); Battle One Developer, LLLP (formerly known as Ginn -LA
Battle One, Ltd., LLLP); Battle One A Developer, LLC (formerly known as Ginn -LA Battle One
A, LLC)
TOWN OF AVON
Y:
[Signature page to Amended Settlement Agreement]
5016439 2.DOC
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
MEMORANDUM
TO: Avon Town Council
Larry Brooks, Town Manager
Justin Hildreth, Town Engineer
Eric Heil, Town Attorney
FROM: Jay Montgomery, Esq.
Will Stenzel, Esq.
Re: Petitions to Correct Substantial Errors in Case Nos. 05CW262 and
07CW225, District Court, Water Division 5 (Town of Minturn and Ginn
entities Applications)
DATE: January 4, 2011
As you recall, Avon entered into stipulated settlements in the four Water
Court cases concerning the legal water supply for the Town of Minturn and the Battle
Mountain Development. The Court subsequently entered final decrees in these cases and
considered these cases closed. Recently, however, Minturn informed us that Minturn
seeks to change the decrees entered in two of these cases, Case Nos. 05CW262 and
07CW225. More specifically, Minturn seeks to petition the court to "correct substantial
errors" in the decrees as they were entered. The proposed petitions are attached as
Exhibit A. Minturn has not yet filed the petitions. As we explain below, we do not
recommend that Avon oppose the petitions.
We have reviewed the proposed changes, and we do not believe these
changes will injure Avon's water rights. The two changes are as follows: (1) Minturn
proposes to change the monthly limitations on the consumptive use allowed to the
Minturn Water System Ditch and the Minturn Well Nos. 1 and 2 (collectively, "Minturn
Ditch ") water rights; and (2) Minturn proposes to treat April as a winter month for
purposes of calculating the consumptive use allowed to the Minturn Ditch water rights.
We will discuss these changes in turn.
I. Petition to Re- Allocate Consumptive Use allowed to the Minturn Ditch
Water Rights Between the Months
A major issue in these cases was how much consumptive water use is
attributable to the Minturn Ditch water rights. This was an important determination
because the senior Minturn Ditch water rights are senior to many downstream water
rights, including some of Avon's water rights. Therefore, expanding the use of these
water rights beyond their historical use could injure downstream water rights, including
Avon's. The Minturn Ditch did not originally include a volumetric or consumptive use
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 2
limitation (older water court decrees rarely included such limitations). However, all
water rights include an implied limitation to the amount of water use and type of use
originally contemplated by the appropriators of the rights. In these cases, the parties
negotiated an annual limit on consumptive use attributable to the Minturn Ditch water
rights of 38 acre -feet. The parties also negotiated monthly limitations on the
consumptive use attributable to the Minturn Ditch water rights.
Minturn does not seek to change the overarching annual 38 acre -feet limit.
Rather, Minturn seeks to change the decreed monthly limitations on the Minturn Ditch
water rights. Minturn's rationale for this change is that there was a misunderstanding
between the Eagle River Water and Sanitation District and Minturn's engineers over
Minturn's monthly water usage. Minturn's engineers believed the monthly water usage
figures provided by the District corresponded to actual water usage, i.e. the water usage
figure for March indicated the amount of water used by Minturn in March. Instead, the
figures apparently corresponded to billed water usage, i.e. the water usage figure for
March indicated the amount of water used by Minturn in February. As a result, Minturn
claims that the monthly consumptive use limitations on the Minturn Ditch are incorrectly
offset by a month. The following table shows the specific changes to the monthly
consumptive use limits proposed in the petitions by Minturn:
Month
Decrees as Entered
Proposed Revision
January
0.75 acre -feet
0.75 acre -feet
February
0.75 acre -feet
0.75 acre -feet
March
0.75 acre -feet
0.75 acre -feet
April
1.5 acre -feet
1.0 acre -feet
May
5.0 acre -feet
3.5 acre -feet
June
5.0 acre -feet
9.75 acre -feet
July
10.0 acre -feet
11.5 acre -feet
August
10.0 acre -feet
8.5 acre -feet
September
7.0 acre -feet
5.0 acre -feet
October
4.0 acre -feet
2.25 acre -feet
November
0.75 acre -feet
0.75 acre -feet
Minturn also proposes to increase the cumulative consumptive use limit allowed for the
months of June, July, and August from 22.5 acre -feet to 27.5 acre -feet.
You will note that the sums of both the previously decreed and proposed monthly limits
are greater than the annual limit (although the sum of the proposed limits is one acre -foot
lower than the sum of the previously decreed monthly limits). This is because the
purpose of the monthly limits is different than the overarching annual consumptive use
cap. The monthly limits are intended to mimic the atp tern of historical consumptive use
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 3
of the Minturn Ditch, which varied from year to year. Therefore, these monthly limits
provide Minturn with some leeway to use more water from the Minturn Ditch water right
in some months and less in other months. The annual limit is intended to provide a cap
on the annual consumptive use allowed for the Minturn Ditch water right. The monthly
and annual limits are independent of each other. For example, if Minturn used 38 acre -
feet of consumptive use under the Minturn Ditch water right by October, Minturn would
not be able to consume any additional water pursuant to the Minturn Ditch for the
remainder of the year. This is so despite the amounts of the monthly limits for November
and December.
In our opinion, Mintum's proposed changes to the monthly consumptive
use limits will not injure Avon's water rights. This is because the overarching annual
limit of 38 acre -feet remains in place, and because the new monthly limits do not vary so
substantially from the decreed monthly limits to cause injury to Avon's water rights. We
therefore do not recommend opposing Avon's petition to change the decreed monthly
consumptive use limits. Avon may consider requesting Les Botham, P.E. to review the
proposed changes prior to agreeing with our recommendation. However, because the
proposed changes are due to mistakes made regarding the existing engineering, we are
confident Mr. Botham would also agree that the changes will not injure Avon's water
rights.
II. Petition to Treat April as a Winter Month for Purposes of Calculating
Consumptive Use Attributable to the Minturn Ditch Water Rights
Again, Minturn's second proposed change is to treat April as a winter
month for purposes of calculating Minturn's consumptive use attributable to the Minturn
Ditch. The consumptive use for the Minturn Ditch water rights is calculated differently
for summer and winter months because these water rights are considered to be used for
irrigation only in the summer. Irrigation consumes much more water than in -house water
uses, and therefore the parties to these cases agreed that the portion of water used during
the summer months should be considered to be 85% consumed. The parties agreed that
the portion of water used during the winter months should be considered to be 5%
consumed.
According to Minturn, the engineering reports prepared for these cases
treated April as a winter month because there is little to no irrigation in Minturn during
April. Our review of the engineering reports confirms Minturn's assertion. However, the
settlement agreements and decrees entered in these cases treat April as a summer month,
and therefore assumed that 85% of the April Minturn Ditch diversions were.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 4
Minturn's petition to treat April as a winter month, if approved by the
Court, would result in less water being treated as consumed by Minturn in April. As a
result, Minturn will be able to divert a little more water pursuant to the Minturn Ditch
water rights, because a smaller percentage of this water will be considered consumed in
April.
Because treating April as a winter month is consistent with the
engineering reports supporting Minturn's Water Court cases, it is our opinion that Avon's
water rights will not be injured by this proposed change. We therefore do not
recommend opposing Avon's petition to treat April as a winter month for purposes of
calculating the consumptive use attributable to the Minturn Ditch water rights. Again,
Avon may consider requesting Les Botham, P.E. review the proposed changes prior to
agreeing with our recommendation. However, because the proposed changes are due to
mistakes made when drafting the settlement agreements and decrees, we are relatively
confident Mr. Botham would also agree that the changes will not injure Avon's water
rights.
III. Amendment of the Settlement Agreements
As you know, Avon entered into a settlement agreement with Minturn and
the Battle Mountain entities regarding Case No. 05CW262 prior to entering into a
stipulated settlement of Avon's opposition to the case. This settlement agreement is
attached as Exhibit B. The purpose of Avon's settlement agreement was to afford Avon
party status to the settlement agreements entered into between Minturn, the Battle
Mountain entities, Eagle River Water & Sanitation District, Upper Eagle Regional Water
Authority, and other parties (the "May Settlement Agreements "). The May Settlement
Agreements include the original decreed monthly allocation of consumptive use
attributable to the Minturn Ditch. The May Settlement Agreements also treat April as a
summer month for purposes of calculating the percentage of water consumed by
Minturn's water use pursuant to the Minturn Ditch water rights.
Our original informal recommendation to Avon was not to request
amendment of Avon's settlement agreement in these cases. This was due to the time and
expense involved in amending the underlying May Settlement Agreements. However,
we subsequently learned from Minturn's attorneys that the May Settlement Agreements
will be amended. Therefore, we now recommend that we request that Minturn agree to
revise Avon's settlement agreement to be consistent with the contemplated amendment of
the May Settlement Agreements.
MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C.
Avon Town Council, Brooks, Hildreth, Heil
January 4, 2011
Page 5
In conclusion, we recommend that Council not oppose Minturn's Petitions to Correct
Substantive Errors and direct counsel to request Minturn to draft amendments to Avon's
settlement agreement in Case No. 05CW262 consistent with the changes proposed by the
petitions for signature by the Mayor or Mayor Pro -Tem of Avon.