TC Res. No. 2009-12 TERMINATING THE NOTTINGHAM AND PUDER DITCH REPAIR,TOWN OF AVON
RESOLUTION NO. 09-12
TERMINATING THE NOTTINGHAM AND PUDER DITCH REPAIR,
MAINTENANCE AND MANAGEMENT AGREEMENT
WHEREAS, the Town of Avon ( "Avon ") entered into an agreement with Traer Creek Metropolitan
District ( "TCMD ") and EMD limited liability company ( "EMD ") concerning the maintenance of the
Nottingham and Puder ditch ( "Ditch "), known as the Nottingham and Puder Ditch Repair, Maintenance
and Management Agreement, dated June 27, 2006 ( "Ditch Agreement'); and,
WHEREAS, portions of the Ditch are in a condition of significant disrepair and such conditions may
result in failure of the ditch, inability to deliver water to the parties, and potential liability for damages to
adjacent properties; and,
WHEREAS, Avon proposed a "Significant Project" as defined in the Ditch Agreement, dated January 7,
2009, to responsibly address the need for significant repairs; and,
WHEREAS, TCMD and EMD responded by joint letter dated January 28, 2009, that they did not agree
to the Significant Project proposed by Avon; and, TCMD and EMD further stated that their water consults
could propose less expensive ditch improvements; and,
WHEREAS, an alternative for less expensive ditch improvements has not been submitted by TCMD and
EMD and Paragraph 8 of the Ditch Agreement allows any parry to terminate the agreement prior to April
1 of each year; and,
WHEREAS, the Town Council finds that continuation of the Ditch Agreement is no longer in the best
interests of the Avon community because the terms of the Ditch Agreement do not require equitable
participation in necessary Ditch repairs and maintenance on a timely and responsible basis;
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF
AVON that the Town Council hereby elects to terminate the Ditch Agreement pursuant to Paragraph 8 of
the Ditch Agreement and further directs Town Staff to provide written notice to TCMD and EMD as
appropriate to effectuate the termination of the Ditch Agreement by the Town of Avon.
BE IT FURTHER RESOLVED that the Town Council does not waive and intends to assert whatever
rights it has by law to repair the ditch, demand and recover a fair share payment by the co- owners, and
demand and recover all other amounts due and owing to the Town prior to termination.
ACCEPTED, APPROVED AND ADOPTED this 24te day of March, 2009.
earl..y
A
St.*- a C
nny, town
AVON,''OWN OUNCIL
By:
Ronald C. Wolfe, Mayor
Catherine Haynes
From: Catherine Haynes
Sent: Friday, March 27, 2009 10:57 AM
To: dsisneros @mcgeadysisneros.com'; 'danleary@traercreek.com';
' magnuslindholm @traercreek.com'; 'rajohnson @j - rlaw.com'
Cc: Larry Brooks; 'Eric Heil'
Subject: Nottingham and Puder DitchTermination letter
Attachments: ScanOO1.PDF
Scan001.PDF (20
KB)
To whom i_t may concern:
Please see attached termination letter for the Nottingham / Puder Ditch Repair Maintenance
and Management Agreement.
The original has been mailed to Dan Leary & Magnus Lindholm with a copy sent to Darlene
Sisneros and Richard Johnson and EMD LLC.
Thank you,
Catherine Haynes
Deputy mown Cierk/ H.R. Assistant
P.O. Box 915, One Lake St.
Avon, CO 81520
Email: chaynes@avon.org
Phone: 910 -148 -4025
Fax: 970-748-4415
1
Page 1 of 1
Catherine Haynes
From: Eric Heil [eheil @wmcattorneys.com]
Sent: Friday, March 27, 2009 9:16 AM
To: Justin Hildreth; Patty McKenny; Larry Brooks
Cc: Catherine Haynes
Subject: Nottingham Ditch Termination Notice
Attachments: Executed Agreement 2006.pdf
If the notice of termination of the Nottingham Ditch Agreement as approved at the last Council meeting should be
sent TODAY if not sent already. The notice must be received by Traer Creek and EMD by Tuesday, March 31st.
Paragraph 10 of the Agreement states that notices are deemed duly given within 3 days of mailing (or when
actually received if hand delivered). I would recommend e- mailing a scanned notice to all the parties today also
and (cc'ing myself please). The Mayor should have signed the prepared notice letter, which can be copied and
used for the notice. U.S. First Class mail is sufficient. Certified or registered mail is not required.
The Nottingham Ditch Agreement requires notice to be sent to:
1. Traer Creek Metropolitan District
2. Darlene Sisneros/McGeady Sisneros, P.C.
3. Richard Johnson /Johnson & Repucci, LLP
4. EMD LLC
5. Richard Johnson /Johnson & Repucci, LLP
The notice addresses are on the agreement, page 5. Two notices should be send to Richard Johnson, one for
TCMD and one for EMD.
Please contact me today if you have any questions regarding this message or providing notice.
Eric
Eric J. Heil; Esq A I C
Widner Michow & Cox LLP
13133 East Arapahoe Road, Suite 100
Centennial, CO 80112
303.754.3392 direct
303.518.4678 mobile
eheil @wmcattorneys.com
www.wmcattorneys.com
CONFIDENTIALITY NOTICE: This message and any accompanying documents are intended only for the use of the
individual or entity to which they are addressed and may contain information that is privileged, confidential and exempt
from disclosure under applicable law. Any dissemination, distribution or copying of this communication is strictly
prohibited if you are not the intended recipient. If you have received this communication in error, please notify us
immediately by telephone at 303.754.3392.
4/1/2009
TO:
CC:
FROM:
DATE:
WIDNER MICHOW & COX,
ATTORNEY'S AT LAW
MEMORANDUM
Honorable Mayor Wolfe and Town Council Members
Larry Brooks, Town Manager
Eric Heil, Town Attorney
March 18, 2009
SUBJECT: Termination of Nottingham and Puder Ditch Repair, Maintenance and
Management Agreement
Summary: Attached is Resolution No. 2009 -12 Terminating the Nottingham and Puder
Ditch Repair, Maintenance and Management Agreement ( "Ditch Agreement "). The
Town has discussed the need for significant repairs to the Nottingham and Puder Ditch
with Traer Creek Metropolitan District and EMD, LLC, through last fall and submitted a
specific proposal for a "Significant Project" as defined in the Ditch Agreement on
January 7, 2009. Traer Creek Metropolitan District and EMD, LLC stated that they
desired to propose a less expensive alternative plan for ditch improvements. As of the
date of preparing this memorandum, no alternative plan has been submitted to the
Town.
Paragraph 8 of the Ditch Agreement allows any party to the Ditch Agreement to
terminate the Ditch Agreement prior to April 1 of each year, otherwise, the Ditch
Agreement automatically renews for another year. Resolution No. 2009 -12 would
officially terminate the Ditch Agreement, which termination would be effective on March
31, 2009.
Requested Town Council Action: Approval of Resolution No. 2009 -12
Widner Michow & COX LLP Eric Heil, Esq., A.I.C.P.
13133 East Arapahoe Road, Suite 100 Direct Tel 303.754.3392
Centennial, CO 80112 eheil @wmcattorneys.com
V - 0 N
C O L O R A D O
March 24, 2009
Mr. Magnus Lindholm
Mr. Dan Leary
Traer Creek RP LLC
PO Box 9429
Avon, CO 81620
Dear Mr. Leary and Mr. Lindholm,
Avon... a smoke free community
Post O%trce Box 975
Otte Lake street
Avon, Cololwdo 816-110
970- 748 -4000
970- 949 -9139 Fcu
Relay recognized
tvww.avor�.or ".g
Please be advised that the Town of Avon has elected to terminate the Nottingham and Puder
Ditch Repair, Maintenance and Management Agreement, dated June 27, 2006, entered into
between the Town of Avon, Traer Creek Metropolitan District and EMD, LLC ( "Ditch
Agreement "). According to Paragraph 8 of the Ditch Agreement, by providing notice of
termination prior to the April 1 annual renewal date, the effective date of termination is March
31, 2009. The Town does not waive or release any amounts currently due and owing to the
Town by Traer Creek Metropolitan District and EMD, LLC.
The Town is willing to discuss with Traer Creek Metropolitan District and EMD, LLC, the
possibility of a new agreement concerning cost sharing for maintenance of the Nottingham and
Puder Ditch.
Sincere
Ronald C. Wolfe, Mayor
Town of Avon
NOTTINGHAM AND PURER DITCH REPAIR MAINTENANCE
AND MANAGEMENT AGREEIVIE +ENT
This Agreement is made and entered into thisreday of 2006, by and
anion- the Town of Avon, a Colorado municipal corporation ( "Avon" ), Traler Creek
Metropolitan District, a quasi - municipal corporation and political subdivision of the State
of Colorado (the "District ") and EMD Limited Liability Company, a Colorado limited
liability company ("EMD").
RECITAIIS
A. WHEREAS, the Nottinghham and Puder Ditch diversion point is located on
the north bank of the Eagle River at a point whence the south quarter corner of Section 8,
T. 5 S., R, 81 W. of the 6th P.M. bears north 12° east 250 feet and said ditch continues
generatly in a northwesterly direction from its diversion point to the Town of Avon;
B. WHEREAS, Avon, the District and EMD own certain water rights
pertaining to the Nottingharn and Puder Ditch as more particularly described in decrees
entered in Case Nos. 385, 963, 1 193, W -3941, W -3664 and 97CGW306.
C. WHEREAS, EMD's affiliate, Traer- Creek LLC, is developing The Village
(at Avon) project on property crossed by the Nottingham and Puder Ditch. Among other
uses, the ditch may supply nonpotable water for irrigation, flow through and recreational
purposes for the development and supply water to certain storage facilities;
D. WHEREAS, among other uses, Avon utilizes the Nottingham and Puder
Ditch to supply water to Nottingham Lake which is Iocated down - ditch Prom The Village
(at Avon) development;
E. WHEREAS, the Nottingham and Puder Ditch has sustained some
struetUral damage and is in need of repair, ongoing inai Men alice and new measuring
devices in order for the parties' to convey their respective water rights through the ditch;
and
F, WHEREAS, Avon, the District and EMD wish to enter into this
agreement in order to provide for the repair, maintenance and ongoing management of
ditch operations and the allocation of costs associated therewith.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficieuac:y of which are hereby acknowledged, and the mutual covenants set forth herein,
the parties agree as follows;
1. Ditch Repairs. The parties recognise that a new flume has recently been
installed in the Nottingham and Puder Ditch. In addition, sections of the ditch need to be
reworked in order to properly convey the parties' water tights. The parties may also wish
to repair the headgate and diversion facility. (The new flume, ditch section and diversion
{f'3t1026207 / 5 )
with the escrow procedure more specifically set forth below, Notwithstanding anything
to the contrary set forth herein, the District and EMD may unilaterally, and in their sole
disei-etion, relocate or pipe the ditch in areas within The Village (at Avon) development
so long as (i) the carrying capacity of the ditch is not reduced below the current piped
capacity of the ditch; and (ii) the District and EMD pay the costs of such improvements.
5. Escrow Procedure. Upon the parties' agreement on the scope, timing and
allocation of costs for Significant Project(s), each party shall deposit in cash, with an
escrow agent, agreed upon by the parties ("Escrow Agent "), 12010 of its Allocated Share
to undertake the Significant Project(s), based upon the Cost Estimate. The Escrow Agent
shall establish an escrow account for the purpose of funding the Significant Project(s)
( "Escrow Account ") to hold all cash deposits made under this Section, as well as interest
earned thereon. Interest earned on amounts on deposit shall be treated in all respects as
escrow funds. No portion thereof shall be subject to claims of the Escrow Agent's
general creditors. Cash deposits received under this Section shall not be commingled
with other funds. The parties will require the Escrow Agent to: (i) acknowledge that the
District and Town are "political subdivisions" and that the Escrow Account is a "public
deposit" as such terms are defined in the Public Deposit Protection Act of the State of
Colorado (the "Act ") and (ii) establish and maintain the Escrow Account with a "public
depository" as defined in the Act.
a. General Disbursement. The Initiating Party shall be entitled to
request a withdrawal of funds from the Escrow Account for paynnent of the costs for the
Significant Project(s), from time to time, in accordance with and subject to the following
procedure. The Initiating Party shall copy the other parties on all communications with
the Escrow Agent. All invoices and payment requests prepared in connection with the
Significant Project(s) shall be delivered to the Initiating Party by the general contractor
and other contractors and materials suppliers, as applicable. Upon the Initiating Party's
approval of each payment request or invoice, as applicable, the Initiating Party shall
transmit the request to Escrow Agent. Promptly upon receipt of approval of each
payment request or invoice, Escrow Agent shall withdraw funds from the Escrow
Account and make payment directly to the contractor or materials supplier, as applicable,
Less any retainage amount, upon receipt of: (i) the payment request or invoice and (ii) an
executed mechanics lien release in a form approved by the Initiating Party, The Initiating
Parry shall secure the other parties' written consent to withdraw ftinds froth the Escrow
Account in excess of line item limits contained in the Cost Estimate, The Initiating Party
shall provide to the Escrow Agent a copy of the other parties' written consent when
submitting a request to withdraw funds that exceeds the line item limits contained in the
Cost Estimate.
b. Final Disbursement. If the Significant Project(s) are completed
and the Escrow Agent is still holding funds in the Escrow Account, Escrow Agent shall
disburse said funds to the parties based Etpon each party's Allocated Share within ten (10)
clays after receipt of: (i) in the case of the _District or the Town, certification of the District
or the Town, as applicable, that publication of notice of final payment has been made in
accordance with statute; 00 written approval of the final payment request by the other
parties; and (iii) executed mechanics lien waiver(s).
t 0002620715 1 3
With copy to:
John W. Dunn, Esq.
Dunn & Associates
P. O. Box 7717
Avon, CO 81620
Notice to District:
Traer Creek Metropolitan District
Attention: President
P.O. Box 640
Vail, CO 81658
With copies to:
Darlene Sisneros
McGeady Sisneros, P.C.
1675 Broadway, Suite 2100
Denver, CO 80202
Richard A. Johnson
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, CO 80304
Notice to EMD:
ENID Limited Liability Company
Attention: Magnus Lindholm
P.O. Box 640
Vail, CO 81658
With copy to:
Richard A. Johnson
Johnson & Repucci UP
2521 Broadway, Suite A
Boulder, CO 80344
1 L Covenant. This agreement is intended and shall be a covenant running
with and burdening the parties' respective interests in the Nottingham and Puder Ditch
and shell hind and inixre to the benefit of the parties' respective successors and assigns,
t WXY2620715 }
STATE OF COLORADO )
)ss.
COUNTY OF .� )
going was acknowtedged before me this t — clay of 2006, by
of the Town of Avon,' Colorado unicipal
corporation, o behalf of the mpany.
Witness my hand
�C
a s
My con1r11 issloll expit 1
�F covo
STATE OF COLORADO
my ire$ WIROW 18;1712 0 10
COUNTY OF
The foregoing was acknowledged before nee this <_T�� clay of 2006, by
Daniel J. Leary, as President of Traer Creek Metropolitan District, a quasi municipal
corporation and political subdivision of the State of Colorado, on behalf of the company.
Witness my hand and official seal.
Notary,,Oubtic R
My coninussion expires
f
STATE OF COLORADO )
Y �+
COUNTY OF } 4;r CO t
The foregoing was acknowledged before me this �' � OMP06, by
Magnus l,iiid]iQj silent of Lava Corporation, a Colorado corporati n, Manager
of EMD Li �. �. mpany, a Colorado limited liability company, on behalf of
s my hand antiicial seal.
Notary Public
My
(00026247 f S J
Page 1 of 1
Catherine Haynes
From:
Eric Heil [eheii @wmcattorneys.com]
Sent:
Friday, March 27, 2009 9:16 AM
To:
Justin Hildreth; Patty McKenny; Larry Brooks
Cc:
Catherine Haynes
Subject:
Nottingham Ditch Termination Notice
Attachments: Executed Agreement 2006.pdf
The notice must be received by Traer Creek and EMD by Tuesday, March 31st.
Paragraph 10 of the Agreement states that notices are deemed duly given within 3 days of mailing (or when
actually received if hand delivered). I would recommend e- mailing a scanned notice to all the parties today also
and (cc'ing myself please). The Mayor should have signed the prepared notice letter, which can be copied and
used for the notice. U.S. First Class mail is sufficient. Certified or registered mail is not required.
The Nottingham Ditch Agreement requires notice to be sent to:
1. Traer Creek Metropolitan District `j)a4�
2. Darlene Sisneros /McGeady Sisneros, P.C�'
3. Richard Johnson /Johnson & Repucci, LLP
4. EMD LLC ✓S
5. Richard Johnson /Johnson & Repucci, LLP��
vl� OIA'tvso ICA"J.
The notice addresses are on the agreement, page 5. Two notices should be send to Richard Johnson, one for
TCMD and one for EMD.
Please contact me today if you have any questions regarding this message or providing notice.
Eric
Eric J. Heil, Esq A I C P
Widner Michow & Cox L LP
13133 East Arapahoe Road, Suite 100
Centennial, CO 80112
303.754.3392 direct
303.518.4678 mobile
eheil@wmcattorneys.com
www.wmcattorneys.com
CONFIDENTIALITY NOTICE: This message and any accompanying documents are intended only for the use of the
individual or entity to which they are addressed and may contain information that is privileged, confidential and exempt
from disclosure under applicable law. Any dissemination, distribution or copying of this communication is strictly
prohibited if you are not the intended recipient. If you have received this communication in error, please notify us
immediately by telephone at 303.754.3392.
3/27/2009
Debbie Roeland
Full Name:
Darlene Sisneros
Last Name:
Sisneros
First Name:
Darlene
Job Title:
Attorney
Company:
McGeady Sisneros, P.C.
Business Address:
McGeady Sisneros, P.C.
450 E. 17th Avenue, Suite 400
Denver, CO 80203 -1214 ,,
Business: (303) 592 -4380
Home: (720) 931 -2061
Business Fax: (303) 592 -4385
E -mail: dsisneros @mcgeadysisneros.com
E -mail Display As: Darlene Sisneros (dsisneros @mcgeadysisneros.com)
Debbie Roeland
Full Name:
Last Name:
First Name:
Company:
Business Address:
Richard A. Johnson
Johnson
Richard
Johnson & Repucci LLP
2521 Broadway, Suite A
Boulder, CO 80304
Debbie Roeland
Full Name:
Dan Leary
Last Name:
Leary
First Name:
Dan
Company:
Traer Creek LLC
Business Address: P.O. Box 9429
Avon, CO 81620
Business: (970) 748 -4988
Business Fax: (970) 748 -8900
E -mail: danleary@traercreek.com
E -mail Display As: Dan Leary (danleary@traercreek.com)
Eric Applegate
Physical Address:
0101 Fawcett Road
Suite 210
Avon, CO 81620
Attn: Manager
Debbie Roeland
Full Name:
Magnus Lindholm
Last Name:
Lindholm
First Name:
Magnus
Company:
EMD Limited Liability Company
Business Address:
PO Box 9429
Avon, CO 81620
Business: 970- 748 -4989
Home: 970- 653 -4500
Mobile: (970) 232 -6016
E -mail: magnuslindholm @traercreek.com
E -mail Display As: Magnus Lindholm (magnuslindholm @traercreek.com)
Company - EMD LLC
Physical:
EMD Limited Liability Company
c/o Traer Creek LLC
0101 Fawcett Road
Suite 210
Avon, CO 81620
Attn: Manager