TC Res. No. 2006-20 APPROVING AGREEMENT FOR DEDICATION OFTOWN OF AVON, COLORADO
RESOLUTION NO. 06-20
Series of 2006
A RESOLUTION APPROVING AGREEMENT FOR DEDICATION OF
AUGMENTATION WATER AND RELATED WATER RIGHTS FOR THE
CONFLUENCE
WHEREAS, an Amended and Restated Development Agreement, The Confluence between the
Town of Avon (Town) and Avon Confluence LLC (Owner) has approved; and
WHEREAS, the Amended and Restated Development Agreement provides that water
requirements for the Confluence will be higher than that allocated in the Town's augmentation
plan (Increased Water Requirements); and
WHEREAS, the Amended and Restated Development Agreement further provides the Owner
dedicate and convey sufficient water rights and water storage rights that can be used to make up
the amounts needed to serve the Increased Water Requirements; and
WHEREAS, an agreement for dedication of augmentation water and related water rights shall
be entered into prior to the issuance of the first building permit on the Confluence; and
WHEREAS, based on information provided by Owner, the Town has calculated and Owner has
agreed that the Confluence Project at full build out will consist of 458.15 single family
equivalents (SFE's) which is 255.55 SFE's greater than the 202.6 SFE's allocated to the
Confluence Project under the Towns augmentation plan; and
WHEREAS, the Agreement for Dedication of Augmentation Water and Related Water Rights,
The Confluence, provides for the dedication and conveyance of sufficient water rights, to meet
the Increased Water Requirements (255.55 SFE's) in compliance with the Amended and Restated
Development Agreement, The Confluence.
NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, that the Agreement for Dedication of Augmentation Water and Related Water
Rights, The Confluence is hereby approved.
ADOPTED THIS 9S
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AT T:
a,u /,c
P y M e own Clerk
DAY OF 'q , 2006.
(OrOWN COUNCIL
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TO AVON, COLORADO
Ronald C. Wolfe, Mayor
AGREEMENT FOR DEDICATION OF AUGMENTATION
WATER AND RELATED WATER RIGHTS
The Confluence
This AGREEMENT FOR DEDICATION OF AUGMENTATION WATER AND
RELATED WATER RIGHTS ("DEDICATION AGREEMENT") is made and entered
into as of May 9 , 2006, by and between East West Resort Development XIV,
L.P., L.L.L.P., a Delaware limited partnership registered as a limited liability limited
partnership ("Owner"), and the Town of Avon, a municipal corporation of the State of
Colorado (the "Town"). Owner and the Town are collectively referred to as the "Parties."
RECITALS
A. Owner is a Delaware limited partnership duly organized and registered as
a limited liability limited partnership under the laws of the State of Delaware, qualified to
do business in the State of Colorado.
B. Owner owns a parcel of real property that was previously annexed to the
Town and defined as the "Confluence" in a 1998 Agreement, which was amended by an
Amended and Restated Development Agreement ("DEVELOPMENT AGREEMENT")
made and entered into as of March 14, 2006, by and between Avon Confluence LLC, a
Delaware limited liability Company ("Avon Confluence LLC"), and the Town, which
constitutes an amendment and restatement with respect to the Confluence of that certain
Development Agreement - Confluence and Tract C dated October 27, 1998.
C. Avon Confluence LLC assigned its rights and obligations in the
Development Agreement to Owner, and Owner has assumed the rights and obligations of
Avon Confluence LLC in the Development Agreement.
D. The DEVELOPMENT AGREEMENT provides in Article III at paragraph
3.5.(g) (Water and Water Rights) as follows:
(i) The Town's augmentation plan decreed in Water Division No. 5 Case
No. 84CW225 allocated 5.52 consumptive acre feet for the development of the Confluence
(Avon Station). The allocated consumptive use was based upon the development of 200
Dwelling Units, 10,000 square feet of commercial area and 1.8 acres irrigated area. Water
requirements for the Confluence will be higher than that allocated in the Town's
augmentation plan. The difference between the 5.52 consumptive acre-feet and the water
requirements for the proposed Confluence development is hereinafter defined as the
"Increased Water Requirements."
(ii) Owner shall, as a condition of water service for the Increased Water
Requirements, dedicate and convey to the Town (or the Town's designee, the Upper
Eagle Regional Water Authority ("the Authority") sufficient water rights and water
storage rights that can be used to make up the amounts needed to serve the Increased
Water Requirements. Any water rights to be dedicated and conveyed shall be subject to
the Town's approval and acceptance, provided, however, Eagle Park Reservoir water
shall be deemed an acceptable source of dedication water under this Agreement. An
agreement for dedication of augmentation water and related water rights shall be entered
into prior to the issuance of the first building permit on the Confluence.
(iii) As part of the above and subject to the approval of the Colorado
Water Conservation Board ("CWCB"), the Parties' also will enter into an agreement with
the Authority for construction of a gravity pipeline to deliver water from the Avon
Wastewater Treatment Plant upstream to a site on the Eagle River near the Raw Water
Booster Pump ' in order to eliminate the need to augment the Owner's diversions.
Approval of the CWCB shall not be a condition to water service but, if approval is not
obtained, Owner shall be obligated to dedicate and convey sufficient additional water
rights as are made necessary by reason of such failure of approval.
E. The Authority is a quasi-municipal corporation established pursuant to an
Intergovernmental Agreement dated September 18, 1984, among the Arrowhead
Metropolitan District, the Town of Avon as successor to the Avon Metropolitan District,
the Beaver Creek Metropolitan District, the Berry Creek Metropolitan District, the Eagle-
Vail Metropolitan District and the Edwards Metropolitan District (collectively the
"Member Districts"). The Authority is the owner or lessee of the water rights and
facilities that provide water service by contract to existing and projected developments
within the service area of its Member Districts.
F. The proposed development of the Confluence Project at full build out will
consist of 458.15 single family equivalent residential units ("SFEs"), which is 255.55
SFEs greater than the projected density of the Property for which the Authority obtained
a lease of water rights from the Town. The Town calculated the SFEs required to serve
the Confluence Project, as shown on the attached Appendix A (Westin Riverfront
Resort/SFE Calculation/February 16, 2006), and Owner concurs and agrees with the
calculations shown on Appendix A.
G. Owner and the Authority entered an agreement whereby the Owner causes
other parties to convey certain water rights to the Authority to meet the Authority's
requirements to provide water service from the Authority for the density of the Property
approved by Avon.
H. As a result of the dedication of additional water rights to the Authority to
serve the Confluence Project, the Authority increased the number of SFE's the Authority
commits to serve within the Town by an additional 255.55 SFEs.
' Note: only the Owner, not the Town, entered an agreement with the Authority for
construction of the gravity pipeline, and the Town agrees that it is not a requirement of
this agreement that the Town be a party to such agreement with the Authority.
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I. The Town and the Authority entered an Amendment to Restated Water
Lease and Supplemental Water Lease ("AMENDMENT TO' RESTATED WATER
LEASE") effective as of the ,~I il,~' day of April, 2006 (copy attached as Appendix B) to
increase the maximum number of SFEs to which the Authority will provide water service
within the Town from 4,984 SFEs to 5239.55 SFEs.
AGREEMENT
NOW, THEREFORE, in consideration of the Recitals Iset forth above, the terms,
conditions' and covenants set forth in this Agreement, and other good and valuable
consideration, the- receipt and sufficiency of which are hereby acknowledged, Owner and
the Town agree as follows, which agreement contains all obligations of the Owner and
the Town with respect to the dedication of augmentation water and related water rights
that is required by the foregoing paragraph D(ii).
1. Each and every provision of the DEVELOPMENT AGREEMENT is
incorporated into this DEDICATION AGREEMENT.
2. If the Authority should fail to provide service to the' Confluence Project,
for any reason whatsoever, the Owner shall convey and assign to the Town any right of
any nature whatsoever that it may have to require the Authority to reconvey to the Owner
all or any portion of the water rights that Owner caused to be dedicated to the Authority
pursuant to the agreement referenced in Recital G and H.
3. This DEDICATION AGREEMENT is personal to the Parties, and is not
intended to benefit any third parties; Owner shall indemnify and hold harmless the Town,
including its reasonable attorneys fees and costs, from any claims against the. Town under
this DEDICATION AGREEMENT by, through or under the Owner.
4. Execution by the Town and the Authority of the Amendment to Restated
Water Lease referenced in Recital I is a condition precedent to the Enforcement of this
DEDICATION AGREEMENT by the Parties.
5. This DEDICATION AGREEMENT contains all obligations of the Owner
and the Town with respect to the dedication of augmentation water and related water
rights that is required by paragraph D(ii).
6. The Owner shall indemnify and save harmless the Town from any and all
suits, actions; claims, judgments, obligations, or liabilities of every nature and description
that - arise from a default or breach of this Dedication Agreement by the Owner. The
Owner shall pay any and all, judgments rendered against the Town on account of any such
suit, action or claim; together with all reasonable expenses and attorneys' fees.incurred
by the Town in defending such suit, action or claim. The Town shall, within fifteen (15)
days after being served with any such claim, suit or action, notify the Owner of its
reliance upon this indemnification and provide the Owner with a copy of all documents
pertaining to the claim or cause of action. The Town agrees that the Owner may also, on
its own behalf, become a party to any such action, and the Town agrees to execute any
documents as may be necessary to allow the Owner to be a party. The Owner is not an
agent or employee of the Town.
IN WITNESS WHEREOF, Owner and the Town have executed this Agreement
as of the date first written above.
TOWN:
TOWN OF AVON a m cipal corporation
apf the to f Colorado
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B13 Y. C~
Vz % Ronald C. Wolfe, Mayor
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PattcKe y, Towj-Cler
STA\ OLORA'H9~
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COUNTY OF )
Subscribed before me this T~~h day of 20Rq, by. Ronald
C. Wolfe as Mayor of Town of Avon, Colorado and as Town C erk of
Avon. ►~Iaa~v~ M;IA
My commission expires: b~ 1 1 j ~1~1~G
Notary Public
EAST WEST RESORT
DEVELOPMENT XIV, L.P., L.L.L.P.:
• OTg9 , -X- a Delaware limited partnership registered as
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114
a limited liability limited partnership
By: I_% GHF Holding Corp, a Colorado corporation,
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009 O`aPP its G ral Partner '
Uy Corrnr 1WM Expires 07n8fZ009 By:
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STATE OF COLORADO )
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COUNTY OF ECPQ
Sub rib d before me this day of -Ij 2006, by
CLn r,a,~p as 'da:r-~ _ of, EAST WEST RESORT
DEVELOPMENT XIV, L.P., L.L.L.P., a Delaware limited partnership registered as a
limited liability limited partnership, by HF Holding Corp, a Colorado corporation, its .
General Partner.
My commission expires:
pN L. CNotary Public
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APPENDIX A - Westin Riverfront Resort
SFE Calculation
February 16
, 2006
Associated
Unit Type
Kitchen
# of Units
SFE Designation
SFE's
Total SFE's
Hotel
Studio King
Yes
68
Efficiency Unit
0.5
34.00
Studio King Plus
-Yes
51'
Efficiency Unit
0.5
25.50
One Bedroom
Yes
3
Residential
1
3.00
One Bedroom Penthouse
Yes
2,'
Residential
1
2.00
Two Bedroom with Lockoff Unit
Note 1
62
Residential/Accommodation
1.35
83.70
Three Bedroom with Lockoff Unit
Note 1
11
Residential/Accommodation
1.35
14.85
Three Bedroom-
Yes
8
Residential/Accommodation
1.35
10.80
Timeshare
One Bedroom Unit
112
Residential
1
112.00
Lock Off Efficiency Unit
Note -2
112
Efficiency Unit
0.5
56.00
Whole Ownership
Yes
106
Residential
1
106.00
Commercial
-
40,000 Sq Ft
2 Inch Meter
10.30
10.30
Subtotal
535
458.15
Less SFE's per Case 84CW225
Residential
(200.00)
Less SFE's per Case 84CW225
Commercial
(2.60)
Total Additional SFE's
255.55
Note 1 - The main unit has a full kitchen (1 SFE) The lockoff unit has no kitchen (.35 SFE)
Note 2 - Efficiency Units are single rooms with cooking facilities.
Note 3 - Whole Ownership Units may not exceed 3000 Square Feet Gross Floor Area.
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AMENDMENT TO RESTATED WATER LEASE
AND, SUPPLEMENTAL WATER LEASE
This Amendment is entered into to be effective as of the day of April, 2006; by and
between the Town of Avon (the "Town") and the Upper Eagle Regional Water Authority (the
"Authority").
WHEREAS, the Town and the Authority entered into an. Amended and Restated Water
Lease dated effective as of the 1 st day of January, 1998 (the "Restated Lease"); and
WHEREAS, under the Restated Lease, the Town leased to the Authority water and water
rights, ditches and ditch rights, wells, and groundwater rights; springs and, spring-rights and
reservoirs, and storage rights described as anundivided 77.7% interest an and to certain water
rights more particularly described on Exhibit A attached to the Restated Lease (the "Water
Rights"); and
WHEREAS, the Restated Lease states that it includes 348.17 consumptive acre-feet
(77.71/o) of the 448 consumptive acre-feet quantified in the augmentation plan decreed on August
141980, in Case No. W-3664, Water Division No. 5, as amended in the-augmenta- on plan
decreed on September 7, 1988, in Case No. 84CW225, Water Division No. 5; and
WHEREAS, the Town and the Authority entered into a Supplemental Water Lease dated
effective as of the 14th day of July, 2005 (the "Supplemental Lease");
WHEREAS, under the Supplemental Lease, the Town leased to the Authority the
remaining undivided 22.3% interest in and to the water rights and the remaining 99.83
consumptive acre-feet (22:3%) of the 448 consumptive acre-feef that were described on-Exhibit
A to the Restated Lease (the "Supplemental Water Rights");
WHEREAS, as a result ofthe lease of the Water Rights under the Restated Lease and the
lease of the Supplemental Water Rights under the Supplemental Lease, the Supplemental Lease
provided that the Authority would serve up to 4984 SFE's within the Town;
WHEREAS, in connection with. the. development of and commitment to serve the
Confluence Project to be located within the, Town; the developer of that project has agreed to
cause the dedication and conveyance to the Authority of additional water rights; and
WHEREAS, the commitment to serve the Confluence Project is contingent upon (i) the
relocation of the effluent discharge pipeline of the Avon Wastewater Treatment Plant to a
location immediately downstream of the Authority's Raw Water Booster Station diversion point;
and (ii) the agreement of the Colorado Water Conservation Board ("CWCB') that the point of
discharge of the pipeline relocation is considered to be at or upstream of the CWCB's decreed
Eagle River instream flow for water rights administration purposes (collectively, the
"Contingencies").
WHEREAS, as a result of the additional dedication of water rights in connection with the
Confluence Project, the Town and Authority wish to, increase the number of SFE's the Authority
commits to serve within the Town by an additional 255.55 SFEs.
NOW,. THEREFORE, in consideration of the premises and othergood and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
1. The Restated Lease and, Supplemental Lease remain in full force and effect as
amended by this Amendment.
2. Paragraph 3;of the Supplemental Water Lease is amended to-increase the
maximum number of SFE's.to which the Authority will' provide water service within the Town
from 4,9 84 SFE's to 5239.55 SFE's. , References to "SFEVs herein are to an SFE as defined in
Section 2.31 of the Rules and Regulations for Water and Sewer Service, Eagle River Water
Sanitation District/Upper Eagle Regional Water Authority, Revised 01/28/04 and include the
definitions in Sections 2.1, 2.13, 2.25, and the 'fractional SFE equivalents for residential units
(1.0 plus pro-rated additions over 3,000, square. feet), efficiency units (0.50 SFE),
accommodation units (0.35 SFE), expansions.or remodels, and commercial equivalents based on
meter size that are contained in Schedule of Fees and Charges for the Town of Avon, Effective
January 1 2005, that are attached to,the Rules and Regulations for Water and Sewer Service, as
Appendix A.
3. The terms of this Amendment are contingent upon and subject to the occurrence
of the Contingencies and the dedication of the additional water rights to the Authority.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment to be
executed in their corporate names, all by the proper officers duly- authorized thereto, to be
effective as of the date first set forth above.
UPPER EAGLE REGIONAL WATER AUTHORITY
B
FR'Ebryigi✓ , Chairman
ATTEST
By: A)/~ A
~.7Q Ac c. En/ , Secretary
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KB2"0 2
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Town Manager
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ATTEST
B,
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TOWN OF AVON