04-22-2003 TRAER CREEK METROPOLITAN DISTRICT WOLFORD MOUNTAIN RESERVOIR CONTRACTJOHNSON 6 REPUCCI LLP
ATTORNEYS AND COUNSELORS AT LAw
1401 WALNUT STREET, SUITE 500
BOULDER, COLORADO 80302
TELEPHONE 303-442-1900 BOULDER
TELEFAX 303-442-0191 WINTER PARK
Richard A. Johnson wwwj-rlawcom rajohnson@j-rlaw.com
April 22, 2003
Glenn E. Porzak
Porzak Browning & Bushong LLP
929 Pearl Street, Suite 300
Boulder, CO 80302
Gary L. Greer
Sherman & Howard, LLC
633 17th Street, Suite 3000
Denver, CO 80202
Re: Traer Creek Metropolitan District/Wolford
Mountain Reservoir Contract
Gentlemen:
Enclosed are copies of fully executed assignments of the Traer Creek Metropolitan
District ("Traer Creek") Wolford Mountain Reservoir Contract from the Colorado River Water
Conservation District ("CRWCD"), which have been consented to by the CRWCD. The first
assignment is from Traer Creek to the Town of Avon and the second assignment is from the
Town of Avon to the Upper Eagle Regional Water Authority. We are sending copies of each
assignment directly to Ms. McKenny, Town Clerk for the Town of Avon, at her request.
Sincer yours,
i &
Richar A. Johnson
EnclosZatty cc: McKenny, Avon Town Clerk (w/enclosures)
Shane Bohart (w/enclosures)
Eric Applegate (w/enclosures)
101 17/traer
Post Office Box 975
400 Benchmark Road
Avon, Colorado 81620
970-748-4000
AVON I
C O L O R A D O 970=949-9139 Fax
970-845-7708 TTY
MEMO
TO:. Richard A. Johnson, Johnson. & Repucci LLP
FROM: Patty McKenny, Town Clerk, Town of Avon
cc: Upper Eagle Regional Water Authority
Norm Wood, Engineer, Town of Avon
RE: Traer Creek Metropolitan District
Wolford Mountain Reservoir Contract
DATE: February 27, 2003
Please find enclosed the following executed agreements per your request:
1. Assignment of Contract from Traer Creek Metro District to the Town of
Avon
2. Assignment of Contract. from the Town of Avon to the. Upper Eagle
-Regional Water Authority
Please forward copies to me at the address below upon execution of these
contracts by the appropriate. parties. Thank you.
Patty McKenny, Town Clerk
Town of Avon
PO Box 975
Avon, CO 81620
l
JOHNSON 6 REPUCCI LLP
ATTORNEYS AND COUNSELORS AT LAW
1401 WALNUT STREET. SUITE 500
BOULDER. COLORADO 80302
BOULDER
TELEPHONE 303-442-1900 WINTER PARK
TELEFAX 303-442-0191
Richard A. Johnson wwwj-rlaw.com rajohnson@j-daw.com
February 20, 2003
Via Hand Delivery
Norman Wood
Town of Avon
400 Benchmark Road
Avon, CO 81620
Re: Traer Creek Metropolitan District/Wolford Mountain Reservoir Contract
Dear Norm:
Enclosed are two partially executed copies of the Assignments of the Colorado River
Water Conservation District Water Supply Contract from Traer Creek Metropolitan District to
the Town of Avon and two copies of the Assignments from the Town of Avon to the Upper
Eagle Regional Water Authority. If the Avon Town Council consents to these assignments at the
meeting scheduled for February 25, 2003, please have both copies of each Assignment executed
by the Town of Avon and return them to me.
Thank you for your assistance. Please feel free to contact me with any questions.
Very truly yours,
Rich r A. Johnson
Enclosures
GREC IEOVIEDD
r~ 2 4 2003
9061 Community Development
COLORADO RIVER WATER
CONSERVATION DISTRICT
Protecting Western Colorado Water Since 1937
February 11, 2003
Ruth B. Johnson, Esq.
Johnson & Repucci, LLP
1401 Walnut Street, Suite 500
Boulder, Colorado 80302
RE: TRAER CREEK METROPOLITAN DISTRICT: WATER SUPPLY CONTRACT (CW03005)
Dear Ruth:
I am enclosing a fully-executed Water Supply Contract ("Contract") between the River
District and Traer Creek Metropolitan District. We have received full payment for Project Year July
2002 through June 2003 with the receipt of Traer Creek's check in the amount of $8,100.00 for 10.8
acre-feet of Colorado River Supply. Thereafter, on or before April 151 of each year, the annual O&M
payment shall be paid to the River District for the next upcoming Project Year.
Please contact Cheryl Dunlap, our accountant, at 945-8522 with any payment or billing
questions.
Sincerely,
Lorra L. Nichols
Legal Assistant/Paralegal
Enclosure
cc: Dave Merritt, w/o enc.
Cheryl Dunlap, w/o enc.
SUITE #200.201 CENTENNIAL STREET
P.O. BOX 1120/GLENWOOD SPRINGS, COLORADO 81602
(970) 945-8522 • FAX (970) 945-8799 • www.crwcd.org
CW03005
ASSIGNMENT OF CONTRACT
FOR VALUE RECEIVED, TRAER CREEK METROPOLITAN DISTRICT (Assignor)
hereby assigns, transfers and sets over to the TOWN OF AVON (Assignee) all rights, title and
interest held by the Assignor in and to the following described contract:
Water Supply Contract with Colorado River Water Conservation District, No.
CW03005, dated February 3 , 2003.
The Assignee hereby assumes and agrees to pay and perform all the remaining and executory
obligations of the Assignor under the Contract and to comply with all terms of the Contract.
The Assignee is a Colorado municipal corporation empowered to provide water, fire
protection and recreational services to its residents, and by contract to properties outside its
boundaries, which has agreed to provide water service to the property originally represented to the
Colorado River Water Conservation District to be served with the Contracted Water. The Assignee
hereby agrees that the Contracted Water shall be used in accordance with the terms of the Contract
and the Colorado; River Water Conservation District's Water Marketing Policy and in accordance
with Colorado law concerning water rights and water use and all decrees related to the Contracted
Water, including but not limited to Case No. 97CW306, Water Division 5, and amendments thereto.
The Assignor warrants and represents that said Contract is in full force and effect and is fully
assignable. The Assignor warrants that it has full right and authority to transfer said Contract and
that the contract rights herein transferred are free of lien, encumbrance or adverse claim. The
Assignor further warrants that the Contract is without modification, and remains on the terms
contained.
In the event that the Town of Avon and the Upper Eagle Regional Water Authority fail to
provide water service to the Property (as that term is defined in the Agreement dated November 4,
2002, among the;Eagle-Vail Metropolitan District, the Town of Avon, the Upper Eagle Regional
Water Authority and Traer Creek Metropolitan District), excepting temporary cessation of water
service due to reasonable maintenance requirements or emergency conditions, the Town of Avon
will re-assign the Contract to Traer Creek Metropolitan District upon sixty(60) days' written notice.
This Assignment shall be binding upon and inure to the benefit of theparties, their successors
and assigns.
Assignment of Contract
Page 2 of 3
CW03005
Pursuant to paragraph 8.a. of the Contract, the new name, address, and telephone number for
notices shall be:
Norman Wood
Town of Avon
P.O. Box 975
Avon, CO 81620
Phone: (970) 748-4000
Fax: (970) 949-5749
Richard A. Johnson, Esq.
Johnson & Repucci LLP
1401 Walnut Street, Suite 500
Boulder, CO 80302
Phone: (303) 442-1900
Fax: (303) 442-0191
Gary L. Greer, Esq.
Sherman & Howard LLC
633 17th Street, Suite 3000
Denver, Colorado 80202
Phone: (303) 299-8322
Fax: (303) 298-0940
This Assignment is conditioned upon the consent thereto by the Colorado River Water
Conservation District, acting by and through its Colorado River Water Projects Enterprise. This
Assignment shall be deemed effective upon the date of execution of a Consent of Assignment bythe
Colorado River Water Conservation District, acting by and through its Colorado River Water
Projects Enterprise.
TRAER CREEK METROPOLITAN DISTRICT
Date: By: X W-~
Nam : Shc,wt t cho.er
Title:
TOWN OF AVON
Date: a I d~ 103 By
Nai
Tit.
Assignment of Contract
Page 3 of 3
CONSENT OF ASSIGNMENT
CW03005
The Colorado River Water Conservation District, acting by and through its Colorado River
Water Projects Enterprise, as a party to Water Supply Contract No. CW03005, dated
February 3 , 2003, hereby consents to the assignment of the rights and obligations of
Traer Creek Metropolitan District (Assignor) under said Contract to the Town of Avon (Assignee),
subject to the terms and conditions stated above in the Assignment of Contract.
COLORADO RIVER WATER CONSERVATION
DISTRICT, acting by and through its Colorado River
Water Projects Enterprise:
Date: L 63 l-By:
Steph~i M. Mathis, Vice President
ATTEST:
R. Eric Kuhn, General Manager
CW03005
WATER SUPPLY CONTRACT
This Contract is made between the COLORADO RIVER WATER CONSERVATION
DISTRICT (herein the "River District"), a political subdivision of the State of Colorado acting by
and through its Colorado River Water Projects Enterprise, and TRAER CREEK METROPOLITAN
DISTRICT (herein "Contractor") effective as of the date of the River District's execution hereof
indicated below.
RECITALS
A. The River District is authorized to contract to deliver water for beneficial use from
River District water projects pursuant to provisions of C.R.S. § 37-46-101, et seq. (herein "River
District Organic Act").
B. The River District is the owner and operator of the Wolford Mountain Reservoir
Project located on the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary
decrees from the District Court in and for Colorado Water Division No. 5 (herein "Water Court")
and permits from governmental agencies, and the River District is entitled to deliveries of water from
Ruedi Reservoir under its Contracts with the U.S. Bureau of Reclamation.
C. The River District's Board of Directors has adopted a Water Marketing Policy, as
revised on December 6, 2002, to provide for the use of water available from the River District's
sources of supply pursuant to contracts, and that Water Marketing Policy is to be implemented
through the River District's Water Projects Enterprise.
D. Contractor has a need for wholesale water supply, demonstrated in its submittals to
the River District pursuant to the Water Marketing Policy's contracting process, in the amount of
10.8 acre feet annually for municipal/industrial purposes which beneficial uses will be accomplished
by Contractor generally in the vicinity of Avon, Colorado, by surface and ground water diversions
from or within the Eagle River drainage tributary to the Colorado River.
E. Contractor has reviewed the Water Marketing Policy and is aware of the "Hydrology
Assumptions" which are part of that Policy and is satisfied, based on its review and investigations,
that Contractor legally and physically can make use for its intended purposes of the Contracted
Water which is the subject of this Contract and that such use will comply with the Water Marketing
Policv and the Project's permits and decrees.
DEFINITIONS
In this Contract certain terms will have definitions as stated below:
WATER SUPPLY CONTRACT
Page 2 of 9
CW03005
• The "River District" means the Colorado River Water Conservation District created
and existing pursuant to the River District Organic Act defined in Recital No. A and
acting by and through its Colorado River WaterProjects Enterprise which is currently
described and memorialized in the Resolution of the Colorado River Water
Conservation District's Board of Directors dated January 17, 2001.
• The "Project" means the River District's "Colorado River Supply" from (1) Wolford
Mountain Reservoir, for which storage water right decrees were obtained by the
River District in Cases No. 87CW283, 95CW281 and 98CW237 District Court for
Colorado Water Division No. 5, and for which additional storage water right decrees
may be obtained in the future by the River District in other cases; and (2) the River
District's contractual right to water deliveries from Ruedi Reservoir.
• "Agricultural" means the use of water for commercial production of agricultural
crops and livestock and other uses consistent with any right decreed for irrigation
purposes, which uses are made on a parcel of land of at least ten acres.
• "Municipal and Industrial" means the use of water by individuals, cities, towns,
public or quasi-public districts, private corporations, homeowners associations, or
other entities for domestic, municipal, and miscellaneous related purposes as those
terms are traditionally and commonly construed, including the use of water for
purposes of producing or processing a non-agricultural product or service for sale,
including without limitations, such uses as manufacturing, mining, milling, land
reclamation, golf course irrigation, snowmaking, and non-hydroelectric power
generation; and including the use of water for environmental mitigation purposes
associated with such uses; but excepting the agricultural use of water defined herein.
• "Contracted Water" means the water which is the subject of this Contract which is
to be released and delivered by the River District and used by Contractor. The
Contracted Water is 10.8 acre feet of Colorado River Supply available during each
Project Year during the term of this Contract, subject to the provisions hereof, for
Contractor's use without right of carryover of any amount not used in any Project
Year.
• "Project Year" means a period of time from July I through and including the
subsequent June 30.
• "Water Marketing Policy" means the RiverDistrict's policy statement as revised and
readopted December 6, 2002, and as the same may be amended in the future.
• "Project Hydrology Assumptions" or "Hydrology Assumptions" means the document
attached as Appendix "A" to the Water Marketing Policy adopted on December 1,
1995.
WATER SUPPLY CONTRACT
Page 3 of 9
AGREEMENTS
CW03005
The foregoing Recitals and Definitions are incorporated herein as agreements between the
River District and Contractor.
River District Water Delivery Obliuations and Responsibilities.
a. Delivery. The River District will deliver the Contracted Water at the outlet works
of the Contracted Water's sources of supply into the receiving natural streams in
quantities provided herein. Unless otherwise agreed to by the River District's
General Manager based upon written request of Contractor, the River District will
make releases for Contractor, based upon Contractor's written schedule of anticipated
demand, adjusted as necessary by the ongoing status of river administration vis-a-vis
the priority status of Contractor's diversions. Contractor shall be solely responsible
after delivery for the legal and physical delivery and use of the Contracted Water.
b. Deliveryy Contingencies. The River District's delivery of Contracted Water shall be
subject to Contractor's payments pursuant to paragraph 3 below and the provisions
for curtailment of deliveries in paragraph 5 below.
C. Water Measurements. The River District shall measure at the outlet works of the
Contracted Water's sources of supply all Contracted Water delivered from the
account of Contractor and shall notify the Division Engineer of Colorado Water
Division No. 5 of the date, time and amount of Contracted Water released and
delivered pursuant to this Contract. Copies of such records shall be provided to
Contractor upon its request therefor.
d. Water Ouality. The River District shall have no obligation to Contractor or any other
person regarding and makes no warranties or representations to Contractor
concerning the quality of Contracted Water delivered pursuant to this Contract by
releases of raw water to natural streams.
e. Maintenance of Facilities. The River District shall use its best efforts to maintain in
good working condition the water storage and release facilities of the Contracted
Water.
f. Withholding of Delivery. The River District may withhold deliveries of Contracted
Water in the event of Contractor's nonpayment for Contracted Water or any other
breach of this Contract by Contractor. Such remedy shall not be the River District's
exclusive remedy in the event of any such breach.
WATER SUPPLY CONTRACT
Page 4 of 9
CW03005
g. Delivery from Primary or Alternate Sources. The River District will deliver the
Contracted Water from the sources of Colorado River Supply described herein which
will best meet the Contractor's legal need to satisfy calls by senior water rights or the
Contractor's physical need for any direct delivery of Contracted Water to
Contractor's diversions. Subject to meeting those objectives, the River District
reserves the right to provide all or any of the Contracted Water to Contractor from
alternate reservoirs for Contractor's use. Any releases from altemate facilities shall
not diminish the supply ofContracted Water or impair Contractor's legal or physical
ability to make use of Contracted Water or to meet its obligations under any judicial
or administrative approval described in paragraph 2.d.
2. Contractor's Water Use Obligations and Responsibilities.
a. Scheduling of Use. Contractor has provided the River District a preliminary written
schedule of its anticipated monthly demands for Contracted Water during the current
Project Year. The schedule provided by Contractor in its application forthis Contract
shall serve as the schedule to be used until it is modified in a written notice given by
Contractor to the River District on or before June 1" annually, or as necessary in
response to river administration of the Contractor's diversions. The schedule shall
identify the volume of any Contracted Water anticipated by Contractor not to be
needed by it during any particular Project Year. Contractor shall update said
schedule periodically during the Project Year as conditions require and give the River
District written notice of all such revisions.
b. Carriage Losses. Contractor shall bear carriage losses, either five percent (5%) of
delivery or such other amount as is determined by the Division Engineer for
Colorado Water Division No. 5, from the point of delivery of Contracted Water to
Contractor's point(s) of use and/or exchange or augmentation.
C. Use Per Contract and Law. Contractor's use of Contracted Water shall in all
instances be in accordance with the terms of this Contract and the Water Marketing
Policy and in accordance with Colorado law concerning water rights and water use
and all decrees related to the Contracted Water. Contractor is not authorized to apply
for or secure any change in the water rights for or associated with any of the sources
of supply of the Contracted Water.
d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans for
augmentation or exchange and/or secure administrative approvals of any temporary
substitute supply plans which are needed for Contractor to use its Contracted Water.
If Contractor intends to make any such applications for any augmentation or
exchange plan(s) or substitute supply plan(s), Contractor shall submit the proposed
application to the River District within a reasonable time before Contractor proposes
to file such application. The River District shall review for written approval such
WATER SUPPLY CONTRACT
Page 5 of 9
CW03005
applications before they are submitted or filed, and the River District's approval shall
not be unreasonably withheld. The River District may in its discretion become a co-
applicant in the prosecution of any such applications for the purpose of protecting its
water rights and related policies. Contractor shall cause to be included in any final
decree of the Water Court a provision conditioning Contractor's use of the
Contracted Water on the existence of a River District contract.
e. Limitation on Disposition. Contractor shall not sublet, sell, donate, loan or otherwise
dispose of any of its rights to this Contract or to Contracted Water without written
notice to and the prior written approval of the River District. The River District's
approval of such disposition shall be granted in all instances in which the Contractor
is transferring the water system which supplies the Contracted Water, or a permanent
transfer of the Contract is to be made to a successor in interest of Contractor by
reason of the transfer of the title or other legal right to use the property served by the
Contracted Water, or where the transfer is made to an entity such as a homeowners'
association or special district created to serve the property originally represented to
the River District to be served with the Contracted Water.
f. Contractor's Water Rates. Contractor may charge its water customers who are
supplied with Contracted Water such rates and charges as are permitted by Colorado
law.
g. Nondiscrimination. Contractor shall not discriminate in the availability of or charges
for any water service or water supply made available pursuant to or based upon the
Contracted Water on account of race, color, religion, or national origin or any other
criteria prohibited under state or federal law.
h. Accounting of Use. Contractor shall maintain an accounting of its use of all water
used or supplied by Contractor on form(s) acceptable to the River District specifically
for the purpose of enabling the River District to prove the use of River District
Project water rights and to administer and operate the Project and water right decrees
and/or administrative approvals related to Contractor's use of Contracted Water.
Contractor shall submit its accounting forms and records to the River District
promptly upon request and shall assist the River District as it may reasonably request
in presenting and/or verifying such evidence of use in court or before administrative
agencies by testimony of Contractor orits authorized and informed officers or agents.
3. Contractor's Payments. Upon execution of this Contract, Contractor shall pay to the River
District the total sum of $8,100.00, being $750.00 for each acre foot of 10.8 acre feet of
Colorado River Supply (the "Contracted Water"). Thereafter, on or before each April 151
during the term of this Contract, Contractor shall pay the River District $20.00 for each acre
foot of Contracted Water, which amount represents Project Operation and Maintenance
("O&M"). The annual O&M payment of Contractor shall be adjusted on April 1, 2003 and
WATER SUPPLY CONTRACT
Page 6 of 9
CW03005
every five (5) years thereafter based on the cumulative change in the Boulder-Denver
Consumer Price Index ("All Items").
4. Contract Term.
a. Subject to the provisions of subparagraph 6.b below, the initial term of this Contract
shall be for a period of up to forty (40) years from the date of the execution of this
Contract.
b. Upon the completion of the initial term and subject to the provisions of subparagraph
6.b below, Contractor shall have the right to renew this Contract for a secondary term
of thirty-five (35) years, which shall commence upon the expiration of the initial
term. If Contractor desires to so renew this Contract, it shall provide the River
District written notice of its intention to do so at least ninety (90) days prior to the
expiration of the initial term of this Contract. Thereafter, and prior to the expiration
of the initial term, the River District and Contractor shall execute a supplemental
agreement of renewal in a form mutually acceptable to the River District and
Contractor. If such notice of intention to renew is not provided and such
supplemental agreement is not executed, no renewal term shall commence.
Upon renewal, the following terms of this Contract shall be subject to renegotiation:
i. The charge for and adjustment of operation and maintenance may be
increased or modified based upon the adequacy of the charge and its
modification under this Contract to cover the River District's operation and
maintenance costs actually experienced during the initial tern.
ii. The need or appropri ateness of an y conservation plan concern ing Contractor's
use of Contracted Water as determined by the River District.
Water Shortage. In the event that the River District is unable, because of either legal or
physical reasons, to deliver any or all of the full amount of water contracted from the Project,
including the Contracted Water, the River District reserves the right to apportion the Project's
available water among its several contractors, including Contractor, in the manner provided
in Section 6 of the Water Marketing Policy.
6. Contract Termination.
a. Termination by River District.
WATER SUPPLY CONTRACT
Page 7 of 9
CW03005
The River District may terminate this Contract for any violation or breach of
the terms of this Contract by Contractor, including Contractor's failure to pay
timely any sum or amount due under this Contract within thirty (30) days
after receiving written notice from the River District of such breach.
ii. The River District also may terminate this Contract if, in its discretion any
judicial or administrative proceedings initiated by Contractor as contemplated
in subparagraph 2.d above, threaten the River District's authority to contract
for delivery of Project Water or the River District's water rights, permits, or
other interests associated with the Project.
iii. The River District may terminate this Contract if its legal ability to deliver
Contracted Water is materially impaired or is eliminated because of the
termination or adverse modification of permits, decrees or other
authorizations which are needed to deliver the Contracted Water.
b. Adjustment of Payments. If the River District terminates this Contract under
subparagraph 6.(a)(ii) or (iii), it shall repay to Contractor a portion of the
Contractor's payment which represents the pro rata amount of the remaining term
of the Contract (40 years or 35 years).
7. Miscellaneous/Standard Provisions.
a. Notices.
i. All notices required or appropriate under or pursuant to this Contract shall be
given in writing mailed or delivered to the parties at the following addresses:
River District:
Colorado River Water Conservation District
P. O. Box 1120
201 Centennial Street, Suite 204
Glenwood Springs, Colorado 81602
Attention: Secretary / General Manager
Phone: (970) 945-8522
Fax: (970) 945-8799
WATER SUPPLY CONTRACT
Page 8 of 9
Contractor:
Traer Creek Metropolitan District
Shane Bohart, President
P. O. Box 640
Vail, CO 81658
Phone: (970) 949-6776
with copy to:
Richard A. Johnson, Esq.
Johnson & Repucci, LLP
1401 Walnut Street, Suite 500
Boulder, CO 80302
Phone: (303) 442-1900
Fax: (303) 442-0191
CW03005
ii. Either party may, by written notice given in accordance with this provision,
change the address to which notices to it shall be mailed or delivered.
b. Amendments. No amendment, modification, or novation of this contract or its
provisions and implementation shall be effective unless documented in writing which
is approved and executed by both parties with the same formality as they have
approved and executed this Contract
-~Z DATE: c~J
A TEST: (rte
Richard Eric Kuhn, Secretary
COLORADO RIVER WATER CONSERVATION
DISTRICT acting by and through its Colorado River
Water Pro' cts nterprise
By.
Step n M. Mathis, Vice President
TRAER CREEK METROPOLITAN DISTRICT
By:
WATER SUPPLY CONTRACT
Page 9 of 9
VERIFICATION
STATE OF COLORADO )
) ss.
COUNTY OF )
CW03005
The foregoing Water Supply Contract was subscribed and sworn to before me by Stephen
M. Mathis as Vice President of the Colorado River Water Conservation Dis 'ct, acting by and
through its Colorado River Water Projects Enterprise, this 3r day of , 2003.
Witness my hand and official seal. My Commission Expires: S f-a5"
C' 1
Not Public z <
STATE OF COLORADO
ss. t
COUNTY OF GARFIELD )
The foregoing Water Supply Contract was subscribed and sworn to before me by Richard
Eric Kuhn as Secretary of the Colorado River Water Conservation District, acting by and through
its Colorado River Water Projects Enterprise, this qth day of FIE! hruG'~ , 2003.
Witness my hand and official seal. My Commission Expires:
STATE OF COLORADO )
) ss.
COUNTY OF )
The foregoing Water Supply Contract was subscribed and sworn to before me by Shane
Bohart as President of Traer Creek Metropolitan District, this -h' day of ~vnjW ,
2003.
Witness my hand and official seal. My
xpi g' ?OOy
4~pAY PUBI
Notary ERIC
APPLEGATE
Nom; •`O
~TF
O 'Do
C
My Commission Expires 0612812003
t
CW03005
ASSIGNMENT OF CONTRACT
FOR VALUE RECEIVED, THE TOWN OF AVON (Assignor) hereby assigns, transfers
and sets over to UPPER EAGLE REGIONAL WATER AUTHORITY (Assignee) all rights, title and
interest held by the Assignor in and to the following described contract:
Water Supply Contract with Colorado River Water Conservation District, No.
CW03005, dated February 3 , 2003.
The Assignee hereby assumes and agrees to pay and perform all the remaining and executory
obligations of the Assignor under the Contract and to comply with all terms of the Contract.
The Assignee is a quasi-municipal corporation, established pursuant to an Intergovernmental
Agreement dated September 18, 1984, among Eagle-Vail Metropolitan District, Arrowhead
Metropolitan District, the Town of Avon, Beaver Creek Metropolitan District, Berry Creek
Metropolitan District and Edwards Metropolitan District, which has agreed to provide water service
to the property originally represented to the Colorado River Water Conservation District tobe served
with the Contracted Water. The Assignee hereby agrees that the Contracted Water shall be used in
accordance with the terms of the Contract and the Colorado River Water Conservation District's
Water Marketing Policy and in accordance with Colorado law concerning water rights and water use
and all decrees related to the Contracted Water, including but not limited to 97CW306, Water
Division 5, and amendments thereto.
The Assignor warrants and represents that said Contract is in full force and effect and is fully
assignable. The Assignor warrants that it has full right and authority to transfer said Contract and
that the contract rights herein transferred are free of lien, encumbrance or adverse claim. The
Assignor further warrants that the Contract is without modification, and remains on the terms
contained.
In the event that the Upper Eagle Regional Water Authority fails to provide water service to
the Property (as that term is defined in the Agreement dated November 4, 2002, among the Eagle-
Vail Metropolitan District, the Town of Avon, the Upper Eagle Regional Water Authority and Traer
Creek Metropolitan District), excepting temporary cessation of water service due to reasonable
maintenance requirements or emergency conditions, theUpper Eagle Regional Water Authority will
re-assign the Contract to the Town of Avon upon sixty (60) days' written notice.
This Assignment shall be binding upon and inure to the benefit of the parties, their successors
and assigns.
Pursuant to paragraph 8.a. of the Contract, the new name, address, and telephone number for
notices shall be:
Assignment of Contract
Page 2 of 3
Dennis Gelvin
Upper Eagle Regional Water Authority
846 Forest Road
Vail, CO 81657
Phone: (970) 476-7480
Fax: (970) 476-4089
Norman Wood
Town of Avon
P.O. Box 975
Avon, CO 81620
Phone: (970) 748-4000
Fax: (970) 949-5749
Gary L. Greer, Esq.
Sherman & Howard LLC
633 17th Street, Suite 3000
Denver, Colorado 80202
Phone: (303) 299-8322
Fax: (303) 298-0940
CW03005
Glenn E. Porzak, Esq.
Porz ak Browning & Bush ong LLP
929 Pearl Street, Suite 300
Boulder, CO 80302
Phone: (303) 443-6800
Fax: (303) 443-6864
Richard A. Johnson, Esq.
Johnson & R epucc i LLP
1401 Walnut Street, Suite 500
Boulder, CO 80302
Phone: (303) 442-1900
Fax: (303) 442-0191
This Assignment is conditioned upon the consent thereto by the Colorado River Water
Conservation District, acting by and through its Colorado River Water Projects Enterprise. This
Assignment shall be deemed effective upon the date of execution of a Consent of Assignment bythe
Colorado River Water Conservation District, acting by and through its Colorado River Water
Projects Enterprise.
THE TOWN OF AVON
Date: I a5 `03 By:
Name: 0.1gE CT li E-4 oL 5
Title: M cg-
UPPER EAGLE REGIONAL WATER AUTHORITY
Date: C) 5 By:
Name: Re e3C P--r "E'e
Title: CNA P9 6 5/
Assignment of Contract
Page 3 of 3
CW03005
CONSENT OF ASSIGNMENT
The Colorado River Water Conservation District, acting by and through its Colorado River
Water Projects Enterprise, as a party to Water Supply Contract No. CW03005, dated
February 3 , 2003 hereby consents to the assignment of the rights and obligations of the
Town of Avon (Assignor) under said Contract to Upper Eagle Regional Water Authority (Assignee),
subject to the terms and conditions stated above in the Assignment of Contract.
COLORADO RIVER WATER CONSERVATION
DISTRICT, acting by and through its Colorado River
Wg-e~cts Enterprise:
Date: / - By: _
S
l1/h
M. Mathis, Vice President
ATTEST:
R. Eric Kuhn, General Manager
CW03005
WATER SUPPLY CONTRACT
This Contract is made between the COLORADO RIVER WATER CONSERVATION
DISTRICT (herein the "River District"), a political subdivision of the State of Colorado acting by
and through its Colorado River Water Projects Enterprise, and TRAER CREEK METROPOLITAN
DISTRICT (herein "Contractor") effective as of the date of the River District's execution hereof
indicated below.
RECITALS
A. The River District is authorized to contract to deliver water for beneficial use from
River District water projects pursuant to provisions of C.R.S. § 37-46-101, et seq. (herein "River
District Organic Act").
B. The River District is the owner and operator of the Wolford Mountain Reservoir
Project located on the Muddy Creek drainage near Kremmling, Colorado, having obtained necessary
decrees from the District Court in and for Colorado Water Division No. 5 (herein "Water Court")
and permits from governmental agencies, and the River District is entitled to deliveries of water from
Ruedi Reservoir under its Contracts with the U.S. Bureau of Reclamation.
C. The River District's Board of Directors has adopted a Water Marketing Policy, as
revised on December 6, 2002, to provide for the use of water available from the River District's
sources of supply pursuant to contracts, and that Water Marketing Policy is to be implemented
through the River District's Water Projects Enterprise.
D. Contractor has a need for wholesale water supply, demonstrated in its submittals to
the River District pursuant to the Water Marketing Policy's contracting process, in the amount of
10.8 acre feet annually for municipal/industrial purposes which beneficial uses will be accomplished
by Contractor generally in the vicinity of Avon, Colorado, by surface and ground water diversions
from or within the Eagle River drainage tributary to the Colorado River.
E. Contractor has reviewed the Water Marketing Policy and is aware ofthe "Hydrology
Assumptions" which are part of that Policy and is satisfied, based on its review and investigations,
that Contractor legally and physically can make use for its intended purposes of the Contracted
Water which is the subject of this Contract and that such use will comply with the Water Marketing
Policy and the Project's permits and decrees.
DEFINITIONS
In this Contract certain terms will have definitions as stated below:
WATER SUPPLY CONTRACT
Page 2 of 9
CW03005
• The "River District" means the Colorado River Water Conservation District created
and existing pursuant to the River District Organic Act defined in Recital No. A and
acting by and through its Colorado River Water Projects Enterprise which is currently
described and memorialized in the Resolution of the Colorado River Water
Conservation District's Board of Directors dated January 17, 2001.
• The "Project" means the River District's "Colorado River Supply" from (1) Wolford
Mountain Reservoir, for which storage water right decrees were obtained by the
River District in Cases No. 87CW283, 95CW281 and 98CW237 District Court for
Colorado Water Divi sion No. 5, and for which additiona 1 storage water right decrees
may be obtained in the future by the River District in other cases; and (2) the River
District's contractual right to water deliveries from Ruedi Reservoir.
• "Agricultural" means the use of water for commercial production of agricultural
crops and livestock and other uses consistent with any right decreed for irrigation
purposes, which uses are made on a parcel of land of at least ten acres.
• "Municipal and Industrial" means the use of water by individuals, cities, towns,
public or quasi-public districts, private corporations, homeowners associations, or
other entities for domestic, municipal, and miscellaneous related purposes as those
terms are traditionally and commonly construed, including the use of water for
purposes of producing or processing a non-agricultural product or service for sale,
including without limitations, such uses as manufacturing, mining, milling, land
reclamation, golf course irrigation, snowmaking, and non-hydroelectric power
generation; and including the use of water for environmental mitigation purposes
associated with such uses; but excepting the agricultural use of water defined herein.
• "Contracted Water" means the water which is the subject of this Contract which is
to be released and delivered by the River District and used by Contractor. The
Contracted Water is 10.8 acre feet of Colorado River Supply available during each
Project Year during the term of this Contract, subject to the provisions hereof, for
Contractor's use without right of carryover of any amount not used in any Project
Year.
• "Project Year" means a period of time from July 1 through and including the
subsequent June 30.
• "Water Marketing Policy" means the River District's policy statement as revised and
readopted December 6, 2002, and as the same may be amended in the future.
• "Project Hydrology Assumptions" or "Hydrology Assumptions" means the document
attached as Appendix "A" to the Water Marketing Policy adopted on December 1,
1995.
WATER SUPPLY CONTRACT
Page 3 of 9
AGREEMENTS
CW03005
The foregoing Recitals and Definitions are incorporated herein as agreements between the
River District and Contractor.
1. River District Water Delivery Obligations and Responsibilities.
a. Delivery. The River District will deliver the Contracted Water at the outlet works
of the Contracted Water's sources of supply into the receiving natural streams in
quantities provided herein. Unless otherwise agreed to by the River District's
General Manager based upon written request of Contractor, the River District will
make releases for Contractor, based upon Contractor's written schedule of anticipated
demand, adjusted as necessary by the ongoing status of river administration vis-a-vis
the priority status of Contractor's diversions. Contractor shall be solely responsible
after delivery for the legal and physical delivery and use of the Contracted Water.
b. Deliveryy Contingencies. The River District's delivery of Contracted Water shall be
subject to Contractor's payments pursuant to paragraph 3 below and the provisions
for curtailment of deliveries in paragraph 5 below.
C. Water Measurements. The River District shall measure at the outlet works of the
Contracted Water's sources of supply all Contracted Water delivered from the
account of Contractor and shall notify the Division Engineer of Colorado Water
Division No. 5 of the date, time and amount of Contracted Water released and
delivered pursuant to this Contract. Copies of such records shall be provided to
Contractor upon its request therefor.
d. Water Oualitv. The River District shall have no obligation to Contractor or any other
person regarding and makes no warranties or representations to Contractor
concerning the quality of Contracted Water delivered pursuant to this Contract by
releases of raw water to natural streams.
e. Maintenance of Facilities. The River District shall use its best efforts to maintain in
good working condition the water storage and release facilities of the Contracted
Water.
f. Withholding of Delivery. The River District may withhold deliveries of Contracted
Water in the event of Contractor's nonpayment for Contracted Water or any other
breach of this Contract by Contractor. Such remedy shall not be the River District's
exclusive remedy in the event of any such breach.
WATER SUPPLY CONTRACT
Page 4 of 9
CW03005
g. Delivery from Primary or Alternate Sources. The River District will deliver the
Contracted Water from the sources of Colorado River Supply described herein which
will best meet the Contractor's legal need to satisfy calls by seniorwater rights or the
Contractor's physical need for any direct delivery of Contracted Water to
Contractor's diversions. Subject to meeting those objectives, the River District
reserves the right to provide all or any of the Contracted Water to Contractor from
alternate reservoirs for Contractor's use. Any releases from alternate facilities shall
not diminish the supply of Contracted Water or impair Contractor's legal or physical
ability to make use of Contracted Water or to meet its obligations under any judicial
or administrative approval described in paragraph 2.d.
2. Contractor's Water Use Obligations and Responsibilities.
Scheduling of Use. Contractor has provided the River District a preliminary written
schedule of its anticipated monthly demands for Contracted Water during the current
Project Year. The schedule provided by Contractor in its application for this Contract
shall serve as the schedule to be used until it is modified in a written notice given by
Contractor to the River District on or before June 151 annually, or as necessary in
response to river administration of the Contractor's diversions. The schedule shall
identify the volume of any Contracted Water anticipated by Contractor not to be
needed by it during any particular Project Year. Contractor shall update said
schedule periodically during the Project Year as conditions require and give the River
District written notice of all such revisions.
b. Carriage Losses. Contractor shall bear carriage losses, either five percent (5%) of
delivery or such other amount as is determined by the Division Engineer for
Colorado Water Division No. 5, from the point of delivery of Contracted Water to
Contractor's point(s) of use and/or exchange or augmentation.
C. Use Per Contract and Law. Contractor's use of Contracted Water shall in all
instances be in accordance with the terms of this Contract and the Water Marketing
Policy and in accordance with Colorado law concerning water rights and water use
and all decrees related to the Contracted Water. Contractor is not authorized to apply
for or secure any change in the water rights for or associated with any of the sources
of supply of the Contracted Water.
d. Legal Approvals. Contractor shall at its sole expense adjudicate a plan or plans for
augmentation or exchange and/or secure administrative approvals of any temporary
substitute supply plans which are needed for Contractor to use its Contracted Water.
If Contractor intends to make any such applications for any augmentation or
exchange plan(s) or substitute supply plan(s), Contractor shall submit the proposed
application to the River District within a reasonable time before Contractorproposes
to file such application. The River District shall review for written approval such
WATER SUPPLY CONTRACT
Page 5 of 9
CW03005
applications before they are submitted or filed, and the River District's approval shall
not be unreasonably withheld. The River District may in its discretion become a co-
applicant in the prosecution of any such applications for the purpose of protecting its
water rights and related policies. Contractor shall cause to be included in any final
decree of the Water Court a provision conditioning Contractor's use of the
Contracted Water on the existence of a River District contract.
e. Limitation on Disposition. Contractor shall not sublet, sell, donate, loan or otherwise
dispose of any of its rights to this Contract or to Contracted Water without written
notice to and the prior written approval of the River District. The River District's
approval of such disposition shall be granted in all instances in which the Contractor
is transferring the water system which supplies the Contracted Water, or a permanent
transfer of the Contract is to be made to a successor in interest of Contractor by
reason of the transfer of the title or other legal right to use the property served by the
Contracted Water, or where the transfer is made'to an entity such as a homeowners'
association or special district created to serve the property originally represented to
the River District to be served with the Contracted Water.
f. Contractor's Water Rates. Contractor may charge its water customers who are
supplied with Contracted Water such rates and charges as are permitted by Colorado
law.
g. Nondiscrimination. Contractor shall not discriminate in the availability of or charges
for any water service or water supply made available pursuant to or based upon the
Contracted Water on account of race, color, religion, or national origin or any other
criteria prohibited under state or federal law.
h. Accountin of f Use. Contractor shall maintain an accounting of its use of all water
used or supplied by Contractor on form(s) acceptable to the River District specifically
for the purpose of enabling the River District to prove the use of River District
Project water rights and to administer and operate the Project and water right decrees
and/or administrative approvals related to Contractor's use of Contracted Water.
Contractor shall submit its accounting forms and records to the River District
promptly upon request and shall assist the River District as it may reasonably request
in presenting and/or verifying such evidence of use in court or before administrative
agencies by testimony of Contractor or its authorized and informed officers or agents.
3. Contractor's Payments. Upon execution of this Contract, Contractor shall pay to the River
District the total sum of $8,100.00, being $750.00 for each acre foot of 10.8 acre feet of
Colorado River Supply (the "Contracted Water"). Thereafter, on or before each April `
during the term of this Contract, Contractor shall pay the River District $20.00 for each acre
foot of Contracted Water, which amount represents Project Operation and Maintenance
("O&M"). The annual O&M payment of Contractor shall be adjusted on April 1, 2003 and
WATER SUPPLY CONTRACT
Page 6of9
CW03005
every five (5) years thereafter based on the cumulative change in the Boulder-Denver
Consumer Price Index ("All Items").
4. Contract Term.
a. Subject to the provisions of subparagraph 6.b below, the initial term of this Contract
shall be for a period of up to forty (40) years from the date of the execution of this
Contract.
b. Upon the completion of the initial term and subject to the provisions of subparagraph
6.b below, Contractor shall have the right to renew this Contract for a secondaryterm
of thirty-five (35) years, which shall commence upon the expiration of the initial
term. If Contractor desires to so renew this Contract, it shall provide the River
District written notice of its intention to do so at least ninety (90) days prior to the
expiration of the initial term of this Contract. Thereafter, and prior to the expiration
of the initial term, the River District and Contractor shall execute a supplemental
agreement of renewal in a form mutually acceptable to the River District and
Contractor. If such notice of intention to renew is not provided and such
supplemental agreement is not executed, no renewal term shall commence.
C. Upon renewal, the following terms of this Contract shall be subject to renegotiation:
i. The charge for and adjustment of operation and maintenance may be
increased or modified based upon the adequacy of the charge and its
modification under this Contract to cover the River District's operation and
maintenance costs actually experienced during the initial term.
ii. The need or appropriateness of any conservation plan concern ing Contractor's
use of Contracted Water as determined by the River District.
5. Water Shortage. In the event that the River District is unable, because of either legal or
physical reasons, to deliver any or all of the full amount of water contracted from the Project,
including the Contracted Water, the River District reserves the right to apportion the Project's
available water among its several contractors, including Contractor, in the manner provided
in Section 6 of the Water Marketing Policy.
6. Contract Termination.
a. Termination by River District.
WATER SUPPLY CONTRACT
Page 7 of 9
CW03005
The River District may terminate this Contract for any violation or breach of
the terms of this Contract by Contractor, including Contractor's failure to pay
timely any sum or amount due under this Contract within thirty (30) days
after receiving written notice from the River District of such breach.
ii. The River District also may terminate this Contract if, in its discretion any
judicial or administrative proceedings initiated by Contractor as contemplated
in subparagraph 2.d above, threaten the River District's authority to contract
for delivery of Project Water or the River District's water rights, permits, or
other interests associated with the Project.
iii. The River District may terminate this Contract if its legal ability to deliver
Contracted Water is materially impaired or is eliminated because of the
termination or adverse modification of permits, decrees or other
authorizations which are needed to deliver the Contracted Water.
b. Adjustment of Payments. If the River District terminates this Contract under
subparagraph 6.(a)(ii) or (iii), it shall repay to Contractor a portion of the
Contractor's payment which represents the pro rata amount of the remaining term
of the Contract (40 years or 35 years).
7. Miscellaneous/Standard Provisions.
a. Notices.
i. All notices required or appropriate under or pursuant to this Contract shall be
given in writing mailed or delivered to the parties at the following addresses:
River District:
Colorado River Water Conservation District
P. O. Box 1120
201 Centennial Street, Suite 204
Glenwood Springs, Colorado 81602
Attention: Secretary / General Manager
Phone: (970) 945-8522
Fax: (970) 945-8799
WATER SUPPLY CONTRACT
Page 8 of 9
Contractor:
Traer Creek Metropolitan District
Shane Bohart, President
P. O. Box 640
Vail, CO 81658
Phone: (970) 949-6776
with copy to:
Richard A. Johnson, Esq.
Johnson & R epucc i, LLP
1401 Walnut Street, Suite 500
Boulder, CO 80302
Phone: (303) 442-1900
Fax: (303) 442-0191
CW03005
ii. Either party may, by written notice given in accordance with this provision,
change the address to which notices to it shall be mailed or delivered.
b. Amendments. No amendment, modification, or novation of this contract or its
provisions and implementation shall be effective unless documented in writing which
is approved and executed by both parties with the same formality as they have
approved and executed this Contract
DATE: 32123
A EST:
Richard Eric Kuhn, Secretary
COLORADO RIVER WATER CONSERVATION
DISTRICT acting by and through its Colorado River
Water Pro' is nterprise
By:
Step n M. Mathis, Vice President
TRAER CREEK METROPOLITAN DISTRICT
By:
WATER SUPPLY CONTRACT
Page 9 of 9
VERIFICATION
STATE OF COLORADO )
) ss.
COUNTY OF )
CW03005
The foregoing Water Supply Contract was subscribed and sworn to before me by Stephen
M. Mathis as Vice President of the Colorado River Water Conservation Dis .ct, acting by and
through its Colorado River Water Projects Enterprise, this 3r day of 2003.
Witness my hand and official seal. My Commission Expires: S f-LZ5
STATE OF COLORADO )
) ss.
COUNTY OF GARFIELD )
Not Public
The foregoing Water Supply Contract was subscribed and sworn to before me by Richard
Eric Kuhn as Secretary of the Colorado River Water Conservation District, acting by and through
its Colorado River Water Projects Enterprise, this day of bYUC'~-I , 2003.
Witness my hand and official seal. My Commission Expires:
STATE OF COLORADO )
) ss.
COUNTY OF EWj t_l )
The foregoing Water Supply Contract was subscribed and sworn to before me by Shane
Bohart as President of Traer Creek Metropolitan District, this ~OYL~day of 3ONvraT
2003.
Witness my hand and official.seal.
0612812003